EXHIBIT 10.51
[LOGO]
January 14, 1999
Xxxxxxx X. Xxxxxx, Xx.
x/x Xxxxxx X. Xxxxxx, Xx., Xxx.
XxXxxxx & Xxxxx, L.L.P.
000 X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000
Re: Agreement Between Photomatrix Corporation and All Affiliates and
Xxxxxxx X. Xxxxxx, Xx.
Dear Xx. Xxxxxx:
This is to confirm and memorialize the agreement by and between
Photomatrix Corporation, on behalf of itself and any and all of its
affiliated, related and subsidiary entities (collectively, the "Company"),
and you (hereinafter, the "parties"), relating to your resignation of any and
all chairmanships and directorships you have, and leave of absence with
respect to any and all other capacities, employment, memberships, offices,
positions and seats you have, with the Company. The parties hereby enter into
this agreement intending to be bound by each and all of its terms.
1. Upon your execution of this agreement, you shall be deemed to have
tendered, and the Company shall be deemed to have accepted, your
above-mentioned resignations and leave of absence, with suspension of any and
all benefits and compensation, except for payment of the Base Salary per the
Executive Employment Agreement between you and Photomatrix Corporation (the
"Employment Agreement"), stock options already granted per the Employment
Agreement, and normal and customary health insurance. Nothing herein shall be
construed to alter, expand or
modify any and all non-competition covenants and agreements and
confidentiality covenants and agreements between you and the Company which
shall continue in full force and effect in accordance with their terms. You
will comply with the Company's written policies of which you have notice and
which are applicable to all executive and managerial employees. The
above-mentioned resignations and leave of absence shall be effective
immediately upon execution of this agreement by the parties, except your
resignation as a director, which shall be effective upon the nomination and
acceptance of the nomination(s) to the Board of Directors of the Company of
either or both Xxxxxxx X. Xxxxxxxx and/or Xxxxx X. Xxxxxxx.
2. Until the Company's Board of Directors votes otherwise, you agree
that all communications by you with the Company regarding the Company, its
business, its customers, its employees and your role (past, present or
future) with the Company shall be directed by you solely to members of the
Company's Board of Directors, or such persons as you may be authorized to
communicate with in accordance with written policy adopted by the Company's
Board of Directors. Until the Company's Board of Directors votes otherwise,
you agree to not contact or otherwise communicate with any staff, employee,
manager, customer, representative or agent of the Company regarding the
Company, its business, its customers, its employees, or your rule (past,
present or future) with the Company. You understand and acknowledge that the
staff, employees, managers, customers, representatives and agents of the
Company will be directed not to contact or communicate with you regarding the
Company, its business, its customers, its employees or your role (past,
present or future) with the Company.
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3. By entering into this agreement, neither party shall be deemed to
have admitted to having engaged in any wrongdoing or actionable conduct.
Further, the parties mutually understand, acknowledge and agree that by
entering into this agreement, they are not waiving, relinquishing or
otherwise withdrawing, nor shall they be deemed to have waived, relinquished
or otherwise withdrawn, any of their rights, remedies or claims they, or any
of them, may have, if any, against the other, except you waive, relinquish
and otherwise withdraw any claim that the Company breached the Employment
Agreement, provided the Company complies with this agreement. All such
rights, remedies and/or claims, if any, of the parties shall be fully
preserved and continue in full force and effect independent of this agreement.
4. You acknowledge and agree that in addition to any other remedy that
may be available to the Company under this or any other agreements with you
or applicable law, a breach by you of this agreement will excuse the Company,
upon a vote of the Company's Board of Directors, from the performance of the
payment or delivery to you of any and all compensation or other forms of
benefits hereunder.
5. The Company acknowledges and agrees that in addition to any other
remedy that may be available to you under this or any other agreements with
the Company or applicable law, a breach by the Company of this agreement will
excuse you from the performance of your agreements and representations
hereunder, including but not limited to your agreement in Paragraph 3 to
waive, relinquish and otherwise withdraw any claim that the Company breached
the Employment Agreement; provided however that no breach by the Company of
this agreement will affect any non-
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competition covenant or agreement or any confidentiality covenant or
agreement between you and the Company, which shall continue in full force and
effect in accordance with their terms.
6. All parties to this agreement acknowledge that they have had the
opportunity to consult with and have consulted with their own independent
legal counsel regarding this agreement and each of its terms and further
acknowledge and agree that this agreement was entered into by them freely and
voluntarily intending to be fully bound by each of its provisions and terms.
7. In the event of a dispute regarding the existence of a breach or the
performance of this agreement by any party, the parties agree that such
dispute shall be resolved solely and exclusively by binding arbitration in
accordance with the rules of the American Arbitration Association. Venue
shall lie exclusively in the County of San Diego, California. The parties
further agree that reasonable attorneys' fees and costs shall be awarded by
the arbitrator to the prevailing party in the event of a dispute is submitted
for resolution to arbitration.
8. The parties agree that the terms and conditions of this agreement
are the result of negotiations between the parties, and that this agreement
shall not be construed in favor of or against any party hereto by reason of
the extent to which any party hereto or his or its counsel participated in
the drafting of this agreement.
9. This agreement may not be changed, altered, or modified except in a
writing signed by the parties. This agreement may not be discharged except by
performance in accordance with its terms or by a writing signed by the
parties.
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10. This agreement contains the entire agreement between the parties
relating to the transactions contemplated hereby, and all prior or
contemporaneous agreements, understandings, representations, and statements,
whether oral or written, and whether by a party hereto or such party's legal
counsel are merged herein.
11. Each party represents and warrants that in executing this
agreement, they are not relying on any representations whatsoever, whether
express or implied, including without limitations, representations of fact or
opinion, made by or on behalf of any party or their agents, representatives,
and attorneys, with the exception of the representations set forth in this
agreement.
PHOTOMATRIX CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------
Its:
Dated: January 18, 1999
Accepted and Agreed:
Dated: January 18, 1999 /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Xxxxxxx X. Xxxxxx
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