SEVERANCE AGREEMENT
THIS SEVERANCE AGREEMENT (Agreement) is made as
of this 13th day of November, 2003, by and between
Xxxxxx X. Xxxxxx (Xx. Xxxxxx) and Invisa, Inc.
(Invisa or the Company).
R E C I T A L S:
WHEREAS, Xx. Xxxxxx is a co-founder of Invisa and
served in the capacities of non-executive Chairman,
director until September 15, 2003. Xx. Xxxxxx is
an employee under that certain employment contract
between the parties dated as of February 9, 2000
(Employment Contract). Commencing on September 15, 2003,
Xx. Xxxxxx began a leave of absence under the Employment
Contract and accordingly has performed no service, had no
responsibility and been paid or accrued no compensation
under the Employment Contract; and
WHEREAS, the Company confirms that Xx. Xxxxxx has served
with dedication and integrity and has been an integral
cause of the growth and development of the Company and
its technology from its inception to the present; and
WHEREAS, the parties mutually agree that the Company is
evolving and growing to the point where it is in the best
interest of the Company to recruit professional and
experienced managers in an effort to continue the growth
and expand the value of the Company; and
WHEREAS, Invisa requested that Xx. Xxxxxx enter into this
Agreement and retire as a director and as non-executive
chairman to further Invisa s business and financial interests.
Xx. Xxxxxx acquiesced because of Invisa s representation
that this Agreement and Xx. Xxxxxx s retirement as a director
and as non-executive chairman 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 and Xx. Xxxxxx s
retirement as a director and as non-executive chairman.
The Audit Committee and the Compensation Committee each
resolved that this Agreement and Xx. Xxxxxx s retirement
are in the best interest of Invisa and all of its
stockholders; and
WHEREAS, to facilitate the Company s ability to engage
professional management, and to improve Invisa s
financial position to facilitate Invisa s access to
growth capital, Xx. Xxxxxx vacated his positions as
non-executive Chairman, and a director, and is further
willing to terminate his Employment Contract in accordance
with this severance arrangement which the parties have
mutually agreed to as set forth hereinbelow.
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. The parties acknowledge and confirm that Xx. Xxxxxx resigned
as non-executive Chairman and as a director of the Company
on September 15, 2003 and that on September 15, 2003,
Xx. Xxxxxx, by mutual agreement, began a leave of absence
from his employment with Invisa resulting in Xx. Xxxxxx
performing no service as an employee or otherwise for
Invisa, having no responsibility and receiving no
compensation under the Employment Contract.
2. Effective on the date hereof, Xx. Xxxxxx s Employment
Contract is terminated, including all contractual entitlement
to severance compensation as provided in the Employment
Contract (five years salary) is waived, except as provided herein.
3. For the express purpose of improving Invisa s financial position to
facilitate Invisa s access to growth capital, all accrued but
unpaid compensation owed to Xx. Xxxxxx, pursuant to the
Employment Agreement (which is approximately $400,000) is
hereby waived by Xx. Xxxxxx except as provided herein.
4. All rights and entitlements of the Xx. Xxxxxx, 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. As consideration for entering into this Agreement and
waiving all severance entitlements pursuant to the
Employment Agreement, and waiving all accrued compensation,
the Company shall pay Xx. Xxxxxx:
(a) $50,000 within 30 days from the execution hereof;
(b) $50,000 when the Company has raised $1,000,000 in
capital, subsequent to the date hereof; and
(c) $50,000 when the Company has raised an additional
$500,000 in capital subsequent to the date hereof
(the aggregate of Paragraph 4(b) and 4(c) is $1,500,000
in additional capital).
6. The Note payable from Xx. Xxxxxx to Invisa in the principal
amount of $71,809.80 dated October 15, 2000 (the Xx. Xxxxxx Note)
shall be forgiven by the Company on its due date,
February 9, 2005. Invisa shall timely pay all taxes required to
be paid by Invisa and Xx. Xxxxxx arising from or as a result of
the forgiveness of the Xx. Xxxxxx Note so that Xx. Xxxxxx shall
have no unpaid tax obligation as a result of the
forgiveness of the Xx. Xxxxxx Note.
7. All shares issued and outstanding as reflected on the shareholders
list as of the date hereof, as owned by Xx. Xxxxxx, Xxx. Xxxxxx,
Xxxxxx & Xxxxx, P.A., the Xxxxxx Xxxxxx Family Foundation, Inc.,
or any trust for Xxxxxxx Xxxxxx, Xxxxxxxxx Xxxxxx or Xxxxx Xxxxxx
(the Xxxxxx Shares) are fully issued, non-assessable, and subject
to no defenses or claims of any nature or kind. All sales of the
Xxxxxx Shares from the date hereof through June 30, 2004 shall be
limited to the 20,000 shares per month in the aggregate. Said sales
shall be made in accordance with Rule 144 of the Securities Act of
1933. The Audit Committee and the Compensation Committee have expressly
authorized the sale of the Shares Approved for Sale by Xx. Xxxxxx
and/or the Xxxxxx family.
8. All of Xx. Xxxxxx s accrued and unpaid expenses, as reflected in
the Company s books, shall be paid within thirty (30) days
following the execution of this Agreement.
9. All options issued prior to the date hereof to Xx. Xxxxxx
(options for 300,000 shares at an exercise price of
$3.85 per share which were granted on January 22, 2002
under the 2002 Incentive Plan) and Xxxxxx & Xxxxx, P.A.
(options for 300,000 shares at an exercise price of
$3.00 per share which were granted in July 2000)
(collectively the Options) are hereby
fully vested and
immediately exercisable. With regard to the Options
granted on January 22, 2002, the provisions of sections
6.6, 6.7, 10.1, 10.2 of the 2002 Incentive Plan shall not apply.
10. The Company hereby fully and completely releases Xx. Xxxxxx and
Xxxxxx & Xxxxx, P.A. from any and all claims of any kind or
nature whatsoever it may now have or hereafter may have.
11. The Company agrees that it shall not, in writing or orally,
directly or through any officer, director, employee or agent,
make any remark, comment or reference, which would be
reasonably likely to be disparaging or otherwise damage
the reputation of Xx. Xxxxxx, including, but not limited to,
matters related to this Agreement or his role as co-founder
or his prior services to the Company. Additionally,
the Company expressly confirms that the indemnification
provisions contained in the Company s Articles of
Incorporation, Bylaws, Agreements, including the terminated
Employment Agreement and related corporate law, shall
continue in effect and Xx. Xxxxxx shall be fully and completely
indemnified and held harmless by the Company relating to Invisa,
as fully and completely as if he were and remained an officer,
director and/or employee of the Company. Any press release
regarding this Agreement or Xx. Xxxxxx s severance shall
be subject to mutual approval.
12. In the event the Company breaches any obligation under
this Agreement or under the Agreement of Even Date
(defined below) and said breach is not cured within thirty
(30) days following notice, Xx. Xxxxxx s entitlement to
accrued compensation and severance payments under the Employment
Agreement shall be deemed restored and shall be due and
payable in full as if this Agreement was never entered
into by the parties.
13. The agreement, as of even date herewith, entered into by and
among Invisa, the Xxxxxx Xxxxxx Family Foundation, Inc.
and Xxxxxxx X. Xxxxxx Irrevocable Trust u/a/d 7/29/98,
Xxxxxxxxx Xxxxxxxx Xxxxxx Irrevocable Trust u/a/d 7/29/98,
Xxxxx Xxxxxx Irrevocable Trust u/a/d 1/16/00, Xxxxx Xxxxxxxx
Xxxxxx, and Xxxxxx & Xxxxx, P.A. (Agreement of Even Date) 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 the Xxxxxx related parties shall
be deemed a breach of this Agreement.
14. 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.
15. This Agreement shall be construed, enforced and performed
in accordance with the laws of the State of Florida.
16. 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.
17. 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.
18. 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.
19. 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.
20. In the event the Company determines to issue a press release
with respect to this Agreement and the matters related thereto,
said press release shall be subject to the prior approval
of Xx. Xxxxxx prior to being released.
IN WITNESS WHEREOF, the parties have signed this Agreement
as of the date first written above.
Invisa, Inc.
_/s/ Xxxxxx X. Duffey_____ By: ____/s/ Xxxxxx X. King___
Xxxxxx X. Xxxxxx
