Contract
EXHIBIT
10.2
To
the
Securities Purchase Agreement dated as of July 21, 2007 (the “ Agreement”)
by
and among Tia III, Inc. ,
Xxxx
Xxxxxxxxxx, and Xxxxxx X. Xxxxxxxx, each of whom is a signatory
thereto.
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SEPARATION
AGREEMENT AND RELEASE
dated as
of July 28, 2008 (the “Agreement”) by and between Xxx. Xxxx Xxxxxxxxxx, an
individual currently having an office located at 0000 Xxxxxx Xxxx, Xxxxx X,
Xxxxxxxxx, Xxx Xxxx, 00000 (hereinafter, the “Executive”), and Tia III, Inc., a
Delaware corporation, currently having its principal place of business located
at 0000 Xxxxxx Xxxx, Xxxxx X, Xxxxxxxxx, Xxx Xxxx, 00000 (hereinafter, the
“Company”) . Each of the Executive and the Company is, unless otherwise
specifically identified, a “Party” and, collectively, the “Parties”). This
Agreement is expressly for the benefit of the Parties and certain “Company
Releasees,” each as respectively defined in Section 5 below.
R E C<
font style="DISPLAY: inline; FONT-SIZE: 10pt; FONT-FAMILY: times new roman"> I T A L S :
WHEREAS,
the
Executive has served as the Company’s sole officer, director, principal and
employee since inception;
WHEREAS,
on July
28, 2008, the Executive ceased working for the Company (hereinafter, the
“Cessation Date”); and
WHEREAS,
the
Executive desires to separate from the Company, cede control and to settle
fully
and finally all differences, disputes and claims she may have against the
Company and others including, but not limited to, those differences, disputes
and claims based upon, arising out of, or relating to the Executive’s employment
relationship with Company and the cessation thereof.
NOW,
THEREFORE,
in
consideration of the mutual covenants and conditions herein contained, it is
hereby agreed by and between the Parties as follows:
1.
Mutual
Agreement to Terminate Relationship; Executive’s
Resignation.
Company
and the Executive mutually desire to terminate Executive’s relationship with the
Company, effective as of the Cessation Date. Further, and in connection with
the
termination of her relationship with the Company, the Executive shall resign
all
of her positions with the Company, namely her positions as a director of the
Company and her official positions as President, Secretary and Treasurer of
the
Company, she having no other positions with the Company. Concurrently with
the
execution and delivery of this Agreement by the Parties, the Executive shall
execute and deliver to Company a letter of resignation effective as of the
Cessation Date (hereinafter, the “Executive’s Resignation Letter”). The
Executive’s Resignation Letter shall be substantially in the form annexed hereto
as Exhibit A
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2.
Separation
Consideration; Method of Delivery.
(a)
The Company agrees to issue to the Executive, Six Million
(6,000,000) shares of Company solely as her separation compensation (Separation
Shares).
(b)
The Company shall deliver the Separation Shares to the
Executive, at 0000 Xxxxxx Xxxx
Xxxxx
X
Xxxxxxxxx, Xxx Xxxx 00000 within five (5) days of the Cessation
Date.
3.
No
Filings .
The
Executive represents that up to and including the date of execution of this
Agreement, she has not filed any action, claim, charge, or complaint against
Company or any other Company Releasee identified in Section 5 below, with any
local, state, or federal agency, self-regulatory organization ("SRO"), or court
and that she will not make such a filing at any time hereafter based upon any
events or omissions occurring prior to and up to the date of execution of this
Agreement. In the event that any agency or court assumes jurisdiction of any
lawsuit, claim, charge or complaint, or purports to bring any legal or
regulatory proceedings against Company or any other Company Releasee identified
in Section 5 below on the Executive’s behalf, she promptly will request that the
agency, SRO, or court withdraw from or dismiss the lawsuit, claim, charge,
or
complaint with prejudice. Notwithstanding the foregoing provisions of this
Section 3 to the contrary, the Executive expressly retains any and all rights
that she may have: (a) to file and commence an action for indemnification
arising under the Company’s certificate of incorporation or by-laws
(collectively, “Indemnification Clam”); provided , however ,
that
such right shall not apply to any Indemnification Claim which is the basis
or a
part of a claim of the Company against the Executive under the Securities
Purchase Agreement (as hereinafter defined in Section 5); (b) to file and
commence an action to enforce issuance and delivery of the Separation
Shares;
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and
(c)
to enforce any of her rights under the Securities Purchase Agreement (as
hereinafter defined in Section 5) including any claims for indemnification
thereunder to the extent in good faith she believes she is entitled
thereto.
4.
Covenant
Not to Xxx.
In
consideration for the promises set forth in this Agreement, the Executive
covenants that she will not file, participate in, or instigate the filing of
any
lawsuits, complaints or charges by herself or by any other person or party
in
any state or federal court or any proceedings before any local, state, or
federal agency, or SRO, except as required by law, claiming that Company or
any
other Company Releasee identified in Section 5 below has violated any law or
obligation, including, but not limited to, any claims that have been made or
that could have been made, based upon events or omissions occurring prior to
and
including the effective date of this Agreement. Notwithstanding the foregoing
provisions of this Section 4 to the contrary, the Executive expressly retains
any and all rights that she may have: (a) to file and commence an action for
an
Indemnification Claim; provided , however ,
that
such right shall not apply to any Indemnification Claim which is the basis
or a
part of a claim of the Company against the Executive under the Securities
Purchase Agreement (as hereinafter defined in Section 5); (b) to xxx to enforce
issuance and delivery of the Separation Shares, and (c) to xxx to enforce any
of
her rights under the Securities Purchase Agreement (as hereinafter defined
in
Section 5) including any claims for indemnification thereunder to the extent
in
good faith she believes she is entitled thereto.
5.
Executive
Release.
Subject
to Company’s obligations in this Agreement or anything to the contrary stated
herein, in consideration for the promises set forth in this Agreement, the
Executive does hereby - for herself and for her heirs, representatives,
attorneys, executors, administrators, successors, and assigns - release, acquit,
and forever discharge Company and all of its affiliates, subsidiaries and
divisions, and their respective stockholders, officers, directors, partners,
servants, agents, employees, representatives, attorneys, employee welfare and
retirement plans and the respective plan administrators and fiduciaries, past,
present, and future, all persons acting under, by, through, or in concert with
any of them, and each of them (all of whom are hereinafter referred to as the
"Company Releasees"), from any and all actions, causes of action, grievances,
obligations, costs, expenses, damages, losses, claims, liabilities, suits,
debts, demands, and benefits (including attorneys' fees and costs actually
incurred), of whatever character, in law or in equity, known or unknown,
suspected or unsuspected, matured or unmatured, of any kind or nature
whatsoever, based on any act, omission, event, occurrence, or nonoccurrence
from
the beginning of time to and including the effective date of this Agreement,
including but not limited to any claims or causes of action arising out of
or in
any way relating to the Executive’s employment relationship with Company or any
other Company Releasee. The Executive agrees that this release of claims
includes, but is not limited to, claims for breach of any implied or express
contract or covenant; claims for promissory estoppel; claims of entitlement
to
any pay (other than the Separation Consideration promised in Section 2); claims
of wrongful denial of insurance and employee benefits, or any claims for
wrongful termination, public policy violations, defamation, invasion of privacy,
fraud, misrepresentation, unfair business practices, emotional distress or
other
common law or tort matters; claims of harassment, retaliation or discrimination
under federal, state, or local law; claims based on any federal, state or other
governmental statute, regulation or ordinance, including, without limitation,
Title VII of the Civil Rights Act, as amended, the Age Discrimination in
Employment Act of 1967, the Older Worker Benefit Protection Act, the National
Labor Relations Act, the Occupational Safety Health Act, the Americans with
Disabilities Act, the Family and Medical Leave Act, the Employee Retirement
Income Security Act of 1974, New York State Wage and Hour Laws, the New York
Occupational Safety and Health Laws, the New York Equal Pay Law, the New York
Human Rights Law, the New York Civil Rights Act, the New York City Human Rights
Act, and the New York City Administrative Code - Title 8. It is expressly
understood by the Executive that among the various rights and claims being
waived by the Executive in this Agreement are those arising under the Age
Discrimination in Employment Act of 1967 (29 U.S.C. sec. 621, et seq.), as
amended. Executive’s release of Company under this Section 5 shall not apply to
any claims of Executive under: (a) the Company’s certificate of incorporation or
by-laws for an Indemnification Claim; provided , however ,
that
such right shall not apply to any Indemnification Claim which is the basis
or a
part of a claim of the Company against the Executive under the Securities
Purchase Agreement (as hereinafter defined); (b) the Separation Shares, and
(c)
that certain Securities Purchase Agreement by and among the Executive, the
Company and Xxxxxx X. Xxxxxxxx dated as of July 21, 2008 (hereinafter, the
“Securities Purchase Agreement”) including any claims for indemnification
thereunder to the extent in good faith she believes she is entitled
thereto.
6.
Mutual
Non-Disparagement.
(a) The Executive agrees that she will not make any
disparaging or defamatory statements, either orally or in writing (and, for
the
purposes of this Agreement, the term “writing” includes, but is not limited to
electronic communications), to any third party concerning Company (including,
but not limited to the Company Releasees identified in Section 5 above),
concerning its or their officers, directors, employees or agents, or concerning
its or their services, products, offerings, quantitative or other research,
or
methods of communicating such services, products or offerings, or its or their
method of doing business, or employment practices. The Executive agrees that
she
will direct her immediate family members and representatives not to make any
disparaging or defamatory statements, either orally or in writing, to any third
party concerning Company or any other Company Releasee, concerning its or their
officers, directors, employees or agents, or concerning its or their services,
products, quantitative or other research, or methods of doing business. Nothing
herein shall preclude the Executive from cooperating in a truthful manner with
any governmental agency or self-regulatory agency (SRO), in an investigation
or
review by such agency, or testifying in a court of law or other proceeding
if
compelled or requested to testify as a witness in a proceeding in which Company,
or any other Company Releasee, or Executive is a subject of the investigation,
review, or proceeding.
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(b)
Company agrees that it will direct Xxxxxx X. Xxxxxxxx not to
make any disparaging or defamatory statements, either orally or in writing,
to
any third party concerning the Executive including, but not limited to, any
statements related to the Executive’s performance during the Executive’s tenure
at Company. Nothing herein shall preclude Company, its corporate affiliates,
or
their respective officers, directors, employees or agents from cooperating
in a
truthful manner with any governmental agency or self-regulatory agency (SRO),
in
an investigation or review by such agency, or testifying in a court of law
or
other proceeding if compelled or requested to testify as a witness in a
proceeding in which Company, or any Company Releasee, or Executive is a subject
of the investigation, review, or proceeding.
7.
Knowing
and Voluntary Agreement.
The
Executive understands and agrees that she:
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(a)
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has
had a reasonable time within which to consider this Agreement before
executing it;
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(b)
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has
carefully read and fully understands all of the provisions of this
Agreement;
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(c)
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is,
through this Agreement, releasing Company and the other Company Releasees
from any and all claims she may have against Company and the other
Company
Releasees (other than claims arising under the Separation Shares
and the
Securities Purchase Agreement), as stated herein but not after this
Agreement is executed by the Executive, including claims under the
Age
Discrimination in Employment Act of
1967;
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(d)
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knowingly
and voluntarily agrees to all of the terms set forth in this Agreement
in
exchange for consideration that is more valuable than what Executive
is
already entitled to;
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(e)
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knowingly
and voluntarily intends to be legally bound by the
same;
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(f)
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was
advised, and hereby is advised in writing, to consider the terms
of this
Agreement and consult with an attorney of her respective choice prior
to
executing this Agreement;
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(g)
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has
had twenty-one (21) days to consider this Agreement before signing
it (the
“Consideration Period”), and has seven (7) days after signing this
Agreement to revoke her signature (the “Revocation Period”). Revocation
can be made by delivering written notice of revocation to: X. Xxxxxxxxx,
Esquire, The Offices at Veranda Park - Bldg 7000, 0000 Xxxxxxxxxx
Xxxx.,
Xxxxx 000, Xxxxxxx, XX 00000. For this revocation to be effective,
written
notice must be received by X. Xxxxxxxxx, Esq. no later than the close
of
business on the seventh (7th) calendar day after the Executive signs
this
Agreement. If the Executive revokes this Agreement, it shall not
be
effective or enforceable and the Executive will not receive the benefits
provided herein.
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8.
Executive
Representations and Warranties.
The
Executive represents, warrants and covenants to the Company that:
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(a)
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The
Executive has the requisite power, authority and legal capacity to
execute
and deliver this Agreement, to perform all of her obligations hereunder
and to undertake all actions required of the Executive hereunder;
and all
necessary approvals of third parties with respect to such matters
have
been given or obtained.
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(b)
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This
Agreement has been duly executed and delivered by the Executive and
constitutes a valid and legally binding obligation of the Executive,
enforceable against the Executive, in accordance with its terms,
subject
to applicable bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to
or
affecting creditors' rights generally and to general principles of
equity.
The entering into of this Agreement and the transactions contemplated
hereby will not result in a violation of any of the terms or provisions
of
any law applicable to the Executive, or any agreement to which the
Executive is a party or by which she is
bound.
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(c)
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The
Executive is acquiring the Separation Shares as principal for her
own
account for investment purposes only and not with a view to or for
distributing or reselling the Separation Shares or any part thereof
or
interest therein.
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(d)
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The
Executive either alone or together with her representatives, has
such
knowledge, sophistication and experience in business and financial
matters
so as to be capable of evaluating and assessing the merits and risks
of
the prospective investment in the Separation Shares, and has so evaluated
the merits and risks of such investment and has determined that the
Separation Shares is suitable for investment for her .
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(e)
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The
Executive acknowledges that her acquisition of the Separation Shares
is a
highly speculative investment, involving a high degree of risk and
the
Executive is able to bear the economic risk of an investment in the
Separation Shares; and, at the present time, is able to afford a
complete
loss of such investment.
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(f)
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The
execution, delivery, and performance of this Agreement by Executive
and
the consummation by Executive of the transactions contemplated hereby
will
not conflict with or result in a default under the terms of any material
contract, agreement, obligation or commitment applicable to Executive.
The
execution, delivery and performance by the Executive of this Agreement
and
the completion of the transaction contemplated hereby do not and
will not
result in a violation of any law, regulation, order or ruling applicable
to the Executive, and do not and will not constitute a breach of
or
default under any agreement to which the Executive is a party or
by which
she is bound.
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(g)
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The
Executive understands that no securities commission, stock exchange,
governmental agency, regulatory body or similar authority has made
any
finding or determination or expressed any opinion with respect to
the
merits of an investment in the Separation
Shares.
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(h)
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The
Executive confirms that neither the Company nor any of its directors,
employees, officers, consultants, agents or affiliates, has made
any
representations (written or oral) to the Executive regarding the
future
value of the Separation Shares. In making its investment decision
with
respect to the Separation Shares, the Executive has relied solely
upon
publicly available information relating to the Company and not upon
any
verbal or written representation made by or on behalf of the
Company.
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(i)
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The
Executive is not and has not become aware of any advertisement in
printed
public media or on radio, television or other form of communication
(including electronic display such as the Internet) with respect
to the
offering of the Separation Shares to
her.
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(j)
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The
Executive understands that the sale and delivery of the Separation
Shares
is conditional upon such sale being exempt from the registration
and
prospectus requirements under applicable securities legislation or
upon
the issuance of such orders, consents or approvals as may be required
to
permit such sale and delivery without complying with such requirements.
If
required under applicable securities legislation or regulatory policy,
or
by any securities commission, stock exchange or other regulatory
authority, the Executive will execute, deliver, file and otherwise
assist
the Company in filing such reports, undertakings and other documents
with
respect to the issue of the Separation
Shares.
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(k)
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Except
as disclosed in writing to the Company, the Executive does not act
jointly
or in concert with any other person or company for the purposes of
acquiring the Separation Shares.
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(l)
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The
investment in the Separation Shares may have tax consequences under
applicable taxation laws, that it is the sole responsibility of the
Executive to determine and assess such tax consequences as may apply
to
her particular circumstances, and the Executive has not received
and is
not relying on the Company for any tax advice
whatsoever.
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(m)
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The
Executive is responsible for obtaining such legal advice as she considers
appropriate in connection with the execution and delivery of this
Agreement and her acquisition of the Separation Shares hereby. The
Executive acknowledges that she has been advised that no accountant
or
attorney engaged by the Company is acting as her representative,
accountant or attorney in connection with this Agreement and/or the
transactions contemplated hereby.
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(n)
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All
information which the Executive has provided or is providing the
Company,
or to its agents or representatives concerning the Executive’s suitability
to acquire the Separation Shares is accurate and correct as of the
date of
the signature on the last page of this Agreement. Such information
includes, but is not limited to the Executive’s personal financial
affairs, business position and the knowledge and experience of the
Executive and the Executive’s advisors. The Company shall maintain such
information regarding the Executive in strict confidence except as
may be
required to be disclosed to governmental agencies pursuant to requirements
of applicable corporate securities and tax laws, rules and regulations
regarding the issuance and delivery of the Separation Shares to the
Executive.
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(o)
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The
Executive has been provided with copies of all material information
requested by either the Executive, the Executive’s purchaser
representative or other representing the Executive, including any
information requested to verify any information furnished, and there
has
been direct communication between the Executive and her representatives
on
the one hand and the Executive and the Executive’s representatives and
advisors on the other in connection with information regarding the
acquisition of the Separation Shares under this Agreement. There
has been
made available the opportunity to ask questions of and receive answers
from the Company and/or the directors, officers, employees or
representatives of the Company concerning the issuance and deliver
of the
Separation Shares under this Agreement and to obtain any additional
information (to the extent the Company possesses such information
or can
acquire it without unreasonable effort or expense) desired or necessary
to
verify the accuracy of the information
provided.
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(p)
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The
Executive represents and warrants that the Executive is an “accredited
investor” as such term is defined in Rule 501(a) of Regulation D, as
promulgated under the ’33 Act and, particularly, is either: (i) a natural
person whose individual net worth, or joint net worth with her spouse,
as
of the date of this Agreement, exceeds $1,000,000; or (ii) a natural
person who had an individual income in excess of $200,000 in each
of the
two most recent years or joint income with her spouse in excess of
$300,000 in each of those years and has a reasonable expectation
of
reaching the same income level in the current
year
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(q)
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The
Executive acknowledges that the Separation Shares shall bear a legend
substantially as follows:
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THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE “1933 ACT”) OR ANY STATE SECURITIES LAWS. THE
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, TRANSFERRED,
HYPOTHECATED, ASSIGNED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE 1933 ACT WITH RESPECT TO SUCH SHARES, OR WITH
AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER STATING THAT SUCH
SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS BEING MADE IN ACCORDANCE WITH
REGULATION S UNDER THE SECURITIES ACT OR IS EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE 1933 ACT AND ANY APPLICABLE STATE SECURITIES LAWS; AND
HEDGING TRANSACTIONS INVOLVING THESE SECURITIES MAY NOT BE CONDUCTED UNLESS
IN
COMPLIANCE WITH THE 1933 ACT.
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(r)
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The
Executive confirms that she has been advised to consult with her
own legal
and financial advisors with respect to the suitability of the Separation
Shares (and the non-transferability restrictions thereon) as an investment
for the Executive and confirms that no representation has been made
to her
by or on behalf of the Company with respect
thereto.
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9.
Full
and Independent Knowledge.
The
Parties represent that they have discussed thoroughly all aspects of this
Agreement with their respective attorneys, fully understand all of the
provisions of the Agreement, and are voluntarily entering into this
Agreement.
10.
No
Representations.
The
Parties acknowledge that, except as expressly set forth herein, no
representations of any kind or character have been made to induce the execution
of this Agreement.
11.
Mutual
Non-Admission of Liability.
Each of
the Parties hereby expressly acknowledges that the execution of this Agreement
and the mutual consideration provided hereunder are not and shall not be
construed in any way as an admission of wrongdoing or liability on the part
of
any Party arising out of or attributable to the Executive’s relationship with
and employment at Company or the termination of those
relationships.
12.
Waiver.
The
failure of any Party to insist upon strict adherence to any term of this
Agreement on any occasion shall not be considered a waiver thereof or deprive
that party of the right thereafter to insist upon strict adherence to that
term
or any other term of this Agreement.
13.
Miscellaneous.
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(a)
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The
language of all parts in this Agreement shall be construed as a whole,
according to its fair meaning, and not strictly for or against any
Party,
each Party having had a hand in its
drafting;
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(b)
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Should
any provision in this Agreement be declared or determined to be illegal
or
invalid, the validity of the remaining parts, terms, or provisions
shall
not be affected thereby, and the illegal or invalid part, term, or
provision shall be deemed not to be part of this Agreement, and all
remaining provisions shall remain valid and
enforceable.
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(c)
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Except
as otherwise expressly provided in the Securities Purchase Agreement
,
this Agreement sets forth the entire agreement between the Parties
pertaining to the subject matter of this Agreement and fully supersedes
any prior agreement or understanding pertaining to the subject matter
hereof;
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(d)
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The
headings used herein are for reference only and shall not affect
the
construction of this Agreement.
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15.
Counterparts.
This
Agreement may be executed in one or more counterparts, by facsimile or original
signature, each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
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16.
Notification.
Notice to be given under this Agreement shall be deemed given, when received,
and if sent by reputable courier (DHL, FedEx or UPS), as follows:
If
to the
Company, to:
PTL
ENERGY INC.
Formerly
Tia III Inc.
The
Offices at VerandaPark Bldg 7000
0000
Xxxxxxxxxx Xxxx - Xxxxx 000
Xxxxxxx,
XX 00000
Fax
000
000 0000
xxxxxxxxxx@xxxxxxxxx.xxx
with
a
Copy to:
Xxxxxxxxx
Consulting LLC
X.
Xxxxxxxxx, ESQ
0000
Xxxxxx Xxxxxxxxxx Xx. #000
Xxxxxxx,
XX 00000
Fax
000
000 0000
xxxxxxxxxx@xxxxxxxxxxx.xxx
If
to the
Executive, to:
Xxx.
Xxxx
Xxxxxxxxxx
0000
Xxxxxx Xxxx , Xxxxx X
Xxxxxxxxx,
Xxx Xxxx, 00000
Fax
No.:
(000) 000-0000
IN
WITNESS WHEREOF,
the
parties have executed and entered into this Agreement as of the day and year
first-above written.
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By
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Name:
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Xxxxxx
X. Xxxxxxxx
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Title:
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President
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THE
EXECUTIVE:
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Xxx.
Xxxx Xxxxxxxxxx
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EXHIBIT
A
[FORM
OF
LETTER OF RESIGNATION]
Xxx.
Xxxx
Xxxxxxxxxx
0000
Xxxxxx Xxxx, Xxxxx X
Xxxxxxxxx,
Xxx Xxxx, 00000
July
25 ,
2008
BY
FEDEX
ATTN:
X.
XXXXXXXXX
The
Offices at Veranda Park - Bldg 7000
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0000
Xxxxxxxxxx Xxxx. Xxxxx 000
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Xxxxxxx,
XX 00000
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Phone
000
000 0000
Ladies
and Gentlemen::
Effective
as of July 28 , 2008, I hereby resign my position as a director of Tia III,
Inc.
and, additionally, resign all of my officer positions with Tia III, Inc.,
namely, my positions as President, Secretary and Treasurer.
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Sincerely,
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Xxxx
Xxxxxxxxxx
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