EXHIBIT 10.34
SEPARATION AND SEVERANCE AGREEMENT
This Separation and Severance Agreement ("Agreement") is made and
entered into by and between POWER2SHIP, INC., a Nevada corporation, and its
various subsidiaries and affiliates (the "Company"), and Xxxxxxx Xxxxx ("Xxxxx")
as of the 15th day of September 2006.
RECITALS
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X. Xxxxx has been employed by the Company as Chief Executive Officer,
serves as a Director of the Company and serves as an officer and/or Director of
various subsidiaries or affiliated companies of the Company.
B Xxxxx and the Company entered into an Employment Agreement on January
1,, 2003 (the "Employment Agreement") with the Company's predecessor, Freight
Rate, Inc.
C. After lengthy discussions among the parties concerning the
operations, management structure and future of the Company, the parties desire
to terminate their relationship on an amicable basis pursuant to the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises, undertakings
and releases, receipt of which is hereby acknowledged as sufficient
consideration by both parties, the parties agree as follows:
1. Recitals. The above recitals are true, correct, and are herein
incorporated by reference.
2. Resignation of Employment. Xxxxx hereby resigns as Chief Executive
Officer, but will remain as Chairman of the Board, to be effective on the date
hereof ("Termination Date").
3. Termination. The Employment Agreement is permanently terminated
effective on the Termination Date.
4. Severance and Benefits. Subject to the conditions set forth herein,
the Company and Xxxxx agree to the following.
(a) In full settlement of all claims for payment made or that
could be made by Xxxxx pursuant to the terms of the Employment Agreement or any
compensation, commissions, vacation pay, health insurance payments or benefits
program heretofore provided, or promised, to Xxxxx, and for the forgiveness of
all amounts due to Xxxxx on the convertible promissory note dated March 10, 2003
issued to him by Freight Rate, Inc., the Company will pay to Xxxxx $20,000, to
be paid in-full upon the Company receiving at least Three Million Dollars in
additional, aggregate funding.
(b) Xxxxx currently owns options to purchase 6,182,642 shares
of the Company's common stock exercisable at prices ranging from $0.25 to $0.38
per share (the "P2S Options"). In consideration for canceling the P2S Options,
canceling the option previously granted to Xxxxx to purchase 10% of the common
stock of Commodity Express Transportation, Inc. and waiving any other claims
Xxxxx has or may have against the Company, the Company will issue Xxxxx a
warrant to purchase 11,000,000 shares of its common stock exercisable at $0.025
per share that expires five years from its grant date.
5. General Releases and Voluntary Waiver of Rights.
(a) Except for the obligations created by or arising out of
this Agreement or any future consulting or distribution agreement between the
Company and Xxxxx, effective on the Termination Date, Xxxxx'x descendants,
heirs, successors and assigns do hereby release, acquit, satisfy and forever
discharge and covenant not to xxx the Company, its agents, servants, employees
and all persons for whose conduct it is legally responsible, including, but not
limited to, its officers, directors, attorneys, insurers, stockholders, parent,
subsidiary, affiliated or related entities and their respective successors and
assigns, and each of them, past or present, from any and all manner of action,
causes of action, rights, liens, agreements, contracts, covenants, obligations,
suits, claims, debts, dues, sums of monies, costs, expenses, attorneys' fees,
judgments, orders and liabilities, accounts, covenants, controversies, promises,
damages, of whatever kind and nature in law or equity or otherwise whether now
known or unknown, including specifically but not limited to, any and all claims
arising out of such employment relationship which Xxxxx ever had (including
claims not yet accrued) against the Company, its agents, servants, employees and
persons for whom it is legally responsible, for and upon any reason arising out
of the employment relationship Xxxxx had with the Company and the transactions
and relationships described herein. Xxxxx specifically acknowledges that he has
been advised that he should consult with an attorney concerning his rights and
the signing of this Release.
(b) Except for the obligations created by or arising out of
this Agreement or any future consulting or distribution agreement between the
Company and Xxxxx, effective on the Termination Date, the Company, and the
Company's subsidiary and affiliated companies and its affiliated officers and
directors, and their successors and assigns, and each of them, does hereby
release, acquit, satisfy and forever discharge and covenant not to xxx Xxxxx or
Xxxxx'x descendants, heirs, successors and assigns, and each of them, past or
present, from any and all manner of action, causes of action, rights, liens,
agreements, contracts, covenants, obligations, suits, claims, debts, dues, sums
of monies, costs, expenses, attorneys' fees, judgments, orders and liabilities,
accounts, covenants, controversies, promises, damages, of whatever kind and
nature in law or equity or otherwise whether now known or unknown, including
specifically but not limited to, any and all claims arising out of such
employment relationship Xxxxx had with the Company and the transactions and
relationships described herein.
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8. Non-Admissions. The Company and Xxxxx agree that neither this
Agreement nor the consideration given shall be construed as an admission of any
wrongdoing or liability by the Company or Xxxxx, and that all such liability or
wrongdoing is expressly denied.
9. Confidentiality. In the course of serving as an officer, Director
and employee of the Company, the Company as disclosed to Xxxxx, and Xxxxx may
otherwise have obtained knowledge of or access to, trade secrets and other
proprietary and confidential information concerning the Company, the Company
products, financial condition, services, research and development plans, and
other matters pertaining to the Company's business ("Confidential Information").
Xxxxx agrees to treat and hold all Confidential Information as secret and
confidential, and to apply strict standards of care to maintain the secrecy of
the Confidential Information. In this regard, Xxxxx agrees not to copy or
reproduce any Confidential Information and not to disclose the contents of any
Confidential Information to any person or entity, other than officers and
directors of the Company or with their written permission. Xxxxx further agrees
to return to the Company written or other copies (including electronic media
containing Confidential Information) of any and all Confidential Information in
Xxxxx'x possession. The provisions of this Section 10 shall not apply to any
Confidential Information that Xxxxx is obligated by law to disclose to any court
or any federal or state government agency.
10. Anti-Coercion. Each of the Parties hereto has entered into this
Agreement without undue influence, fraud, coercion, duress, misrepresentation,
or restraint having been imposed upon them by any other party, and further
acknowledges that each party had the opportunity to be represented by counsel of
their own selection.
11. Interpretation of Release. For the purposes of interpretation and
construction of this Agreement, this Agreement shall be deemed to have been
drafted by the Company and by Xxxxx.
12. Notices. Any notice required or permitted to be given under the
terms of this Agreement shall be sufficient if in writing and if sent postage
prepaid by registered or certified mail, return receipt requested; by overnight
delivery; by courier; or by confirmed telecopy, in the case of Xxxxx to the
business or residence as shown on the records of the Company, or in the case of
the Company to its principal office or at such other place as it may designate.
13. Entire Agreement. This Agreement constitutes the entire agreement
between the parties and shall not be modified, altered, or discharged, except by
a writing signed by each of the parties hereto.
14. Governing Law, Jurisdiction and Venue. This Agreement shall be
governed by the laws of the State of Florida. The Parties acknowledge that this
Agreement contains provisions, which are enforceable in the State of Florida,
and all Parties consent to the personal jurisdiction of the State of Florida and
County of Palm Beach.
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15. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same Agreement.
16. Waiver of Breach - Effect. No waiver or any breach of any term or
provision of this Agreement shall be construed to be, nor shall be, a waiver of
any other breach of this Agreement. No waiver shall be binding unless in writing
and signed by the Party waiving the breach.
17. Full Understanding and Voluntary Acceptance. In entering into this
Agreement, the parties represent that they have relied upon the advice of their
attorneys or have chosen to enter into this Agreement without the assistance of
counsel based upon their understanding of the terms hereof. The terms of this
Agreement have been completely read and explained to them by there attorneys
and/or they have reviewed the terms hereof in complete detail and that the terms
are fully understood and voluntarily accepted by them.
18. Headings. The headings in this Agreement are for convenience only
and shall not be used to interpret or construe its provisions.
XXXXX ACKNOWLEDGES THAT HE HAS READ THIS AGREEMENT, THAT HE HAS BEEN
GIVEN AMPLE OPPORTUNITY TO REVIEW IT AND TO CONSULT WITH A REPRESENTATIVE OR
ATTORNEY OF XXXXX'X CHOOSING CONCERNING ITS TERMS. XXXXX FURTHER ACKNOWLEDGES
THAT HE UNDERSTANDS THE TERMS AND CONDITIONS OF THIS AGREEMENT AND IS
VOLUNTARILY ENTERING INTO IT WITH THE COMPANY.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
POWER2SHIP, INC.
By:/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, Chief Executive Officer
/s/ Xxxxxxx Xxxxx
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XXXXXXX XXXXX
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