AGREEMENT
THIS AGREEMENT (Agreement) is entered into as of this
13th day of November, 2003, by and among Invisa, Inc.
(Invisa or the Company), the Xxxxxx Xxxxxx Family
Foundation, Inc. (Foundation), Xxxxxxx X. Xxxxxx
Irrevocable Trust u/a/d 7/29/98 (Xxxxxxx Trust), Xxxxxxxxx
Xxxxxxxx Xxxxxx Irrevocable Trust u/a/d 7/29/98 (Xxxxxxxxx Trust),
Xxxxx Xxxxxx Irrevocable Trust u/a/d 1/16/00 (Grace Trust),
Xxxxx Xxxxxxxx Xxxxxx (Xxx. Xxxxxx), and Xxxxxx & Xxxxx, P.A.
(collectively referred to as Shareholders).
R E C I T A L S:
WHEREAS, Xxxxxx X. Xxxxxx and Invisa have, as of even date
hereof, entered into a Severance Agreement; and
WHEREAS, the Trusts and Foundation identified above were
family trusts and a family foundation created by Xx. Xxxxxx.
The Trusts, the Foundation, and Xxx. Xxxxxx are shareholders
in Invisa and, as described below, are, in some cases, parties
to notes payable from Invisa and to Invisa; and
WHEREAS, Xxxxxx & Xxxxx, P.A. is a shareholder in Invisa.
Xxxxxx & Xxxxx, P.A. has provided no legal services or other
services to Invisa since January 2002 when Xx. Xxxxxx became
an employee of Invisa; and
WHEREAS, in accordance with Xx. Xxxxxx s and the Company s
Severance Agreement, the parties have agreed to certain
matters as set forth hereinbelow; and
WHEREAS, Invisa requested that Shareholders enter into this
Agreement to further Invisa s business and financial interests.
Shareholders acquiesced because of Invisa s representation that
this Agreement is in the best interest of Invisa and all of
its stockholders; and
WHEREAS, Invisa s Audit Committee and Compensation Committee
have fully approved this Agreement. The Audit Committee and
the Compensation Committee each resolved that this Agreement
and the actions of the Shareholders in entering into this
Agreement are in the best interest of Invisa and all of its
stockholders; and
NOW THEREFORE, in consideration of the mutual promises made
herein, and for other good and valuable consideration, receipt
of which is hereby acknowledged by each party, the parties,
intending to be legally bound, hereby agree as follows:
1. For the express purpose of improving Invisa s financial
position to facilitate Invisa s access to growth capital,
Invisa has requested that the notes payable to the
Xxxxxxx Trust and the Xxxxxxxxx Trust in the approximate
principal and accrued interest amount of $646,000
(the Promissory Notes), be forgiven by each of said
Trusts, and contributed to the capital of Invisa.
Effective on the date hereof, the Xxxxxxx Trust and the
Xxxxxxxxx Trust hereby forgive the Promissory Notes.
2. All shares as reflected on the shareholders list in the
name of the Foundation, the Xxxxxxx Trust, the Xxxxxxxxx
Trust, the Grace Trust, Xxxxxx & Xxxxx, P.A., and
Xxx. Xxxxxx, are fully issued, non-assessable, and are
subject to no defenses or claims of any nature or kind.
The Xxxxxxx Trust, Xxxxxxxxx Trust, Grace Trust, Xxx. Xxxxxx,
and Xxxxxx & Xxxxx, P.A. agree to be bound by the sale
limitations (Lock Up) set forth in Paragraph 7 of the
Severance Agreement between the Company and Xx. Xxxxxx.
3. The note payable to Invisa from the Grace Trust to the
Company in the principal amount of $125,000 (the Grace
Trust Note) shall be forgiven by the Company on its
due date, December 29, 2004. Invisa shall timely pay
all taxes required to be paid by Invisa and the Grace Trust
arising from or as a result of the forgiveness of the Grace
Trust Note so that the Grace Trust shall have no unpaid tax
obligation as a result of the forgiveness of the Grace Trust Note.
4. All rights and entitlements of the Shareholders, except
only those expressly waived or terminated herein, shall
remain in full force and effect and any and all defenses,
setoffs or claims of any nature are fully and completely waived.
5. The note payable from Xxx. Xxxxxx to the Company in the principal
amount of $250,000 (the Xxx. Xxxxxx Note) shall be forgiven by
the Company on its due date, December 29, 2004. Invisa shall
timely pay all taxes required to be paid by Invisa and
Xxx. Xxxxxx arising from or as a result of the forgiveness
of the Xxx. Xxxxxx Note so that Xxx. Xxxxxx shall have no
unpaid tax obligation as a result of the forgiveness
of the Xxx. Xxxxxx Note.
6. The Company hereby releases the Foundation, the Xxxxxxx Trust,
the Xxxxxxxxx Trust, the Grace Trust, Xxx. Xxxxxx, and
Xxxxxx & Xxxxx, P.A. and any of its officers, directors,
employees or agents, from any and all claims of any kind or
nature whatsoever it may now have or hereafter have.
The Company shall indemnify and hold each of the parties
hereto harmless from any claim or action arising out of
this Agreement, the subject matter hereof and all other matters
relating to the parties relationships with Invisa.
7. In the event the Company breaches any of its obligations,
under this Agreement or the Severance Agreement, the Promissory
Notes shall be deemed restored and due and payable as if this
Agreement was never entered into by the parties.
8. The Severance Agreement, as of even date herewith, entered into
by and between Invisa and Xxxxxx X. Xxxxxx, is deemed an integral
part of this Agreement and any breach thereof by Invisa shall
be deemed a breach of this Agreement, and any breach thereof
by Xx. Xxxxxx shall be deemed a breach of this Agreement. In the
event the Company breaches any obligation under this Agreement
or under its Severance Agreement with Xx. Xxxxxx, the Promissory
Notes waived in Paragraph 1 hereof shall be immediately reinstated
and restored, and shall be due and payable to the Xxxxxxxxx Trust
and the Xxxxxxx Trust under their respective terms. Any dispute
which arises pursuant to this Agreement shall be resolved exclusively
by binding arbitration before the American Arbitration Association
seated in Sarasota, Florida. The determination of the arbitrators
shall be final and binding upon the parties. Each party shall
bear their own costs of arbitration.
9. This Agreement shall be construed, enforced and performed in
accordance with the laws of the State of Florida.
10. The failure of either party to require performance of any
of the provisions herein shall not operate as a waiver of
that party s rights to request strict performance of the
same or like provisions, or any other provisions hereof,
at a later time.
11. In construing this Agreement, neither of the parties hereto
shall have any term or provision of this Agreement construed
against such party solely by reason of such party having
drafted same as each provision of this Agreement is deemed
by the parties to have been jointly drafted by the parties hereto.
12. This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original, and which
together shall constitute one and the same instrument.
This Agreement may be executed by fax with fax execution
having the same legal effect as an original signature.
13. All parties hereto acknowledge that Xxxxxxx X. Xxxxx has
fully disclosed all of his conflicts of interest arising
out of his relationship to the parties hereto in a number
of conflicting capacities. The parties hereto further
acknowledge and waive the conflicts of interest of
Xxxxxxx X. Xxxxx, who all parties acknowledge and
agree assisted the parties in the drafting of this
Agreement. All parties further acknowledge and agree
that they have been advised by Xx. Xxxxx to seek legal
advice from their own independent legal counsel prior
to executing this Agreement. All parties release Xx. Xxxxx
from any claims of any kind or nature whatsoever arising
from his assistance to the parties in connection with this
Agreement, and further agree to indemnify and hold Xx. Xxxxx
harmless from any claims of any kind or nature whatsoever
arising from his assistance to the parties in connection
with this Agreement.
IN WITNESS WHEREOF, the parties have signed this Agreement
as of the date first written above.
INVISA, INC. XXXXXX XXXXXX FAMILY FOUNDATION, INC.
BY: ____/s/ Xxxxxx X. Xxxx BY: _________/s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, Director of Foundation
XXXXXXX X. XXXXXX IRREVOCABLE XXXXXXXXX XXXXXXXX IRREVOCABLE
TRUST U/A/D 7/29/98 TRUST U/A/D 7/29/98
BY: ____/s/ Xxxxxxx X. Xxxxx BY: __/s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx, Trustee Xxxxxxx X. Xxxxx, Trustee
XXXXX XXXXXX IRREVOCABLE XXXXX XXXXXXXX XXXXXX
BY: ____/s/ Xxxxxxx X. Xxxxx BY: ___/s/ Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx X. Xxxxx, Trustee Xxxxx Xxxxxxxx Xxxxxx
XXXXXX & XXXXX, P.A.
BY: ____/s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, President
