Exhibit 99.1
CALYPSO WIRELESS, INC.
SEPARATION AGREEMENT AND MUTUAL RELEASE
This Separation Agreement and Mutual Release ("Agreement") is made by and
between CALYPSO WIRELESS, INC. (the "Company"), and XXXXXXX XXXXXXX, CHIEF
EXECUTIVE.
Xx. Xxxxxxx is currently the President and Chief Executive Officer of
Calypso Wireless, Inc. and a member of the Board of Directors. The Company and
Xx. Xxxxxxx have mutually agreed to terminate their employment relationship, to
release each other from any claims arising from or related to this relationship
and to enter into this Agreement.
In consideration of the mutual promises made herein and other valuable
consideration, receipt of which is hereby acknowledged, the Parties agree as
follows:
1. RESIGNATION AND TERMINATION OF EMPLOYMENT. The Parties agree and
acknowledge that Xx. Xxxxxxx will resign as Chief Executive Officer and
President of the Company and from the Board of Directors effective the close of
business on December 28, 2004 (the "Termination Date").
2. EMPLOYEE BENEFITS. Xx. Xxxxxxx will receive a lump sum payment of
$150,000 payable according to the following schedule:
(a) $50,000 payable upon receipt of resignation;
(b) $100,000 outstanding balance will be paid in 6 monthly
installments of ($16,666.66) payable on the last day of each
month (commencing January 31, 2005) until full amount is
paid;(1)
--------
(1) These payments shall be made by wire transfer or direct deposit to an
account number provided by Xxxxxxx Xxxxxxx.
(c) Certificates for 25,000 shares of stock pursuant to the terms
of the consulting agreement executed on October 3, 2003;
(d) Letter from the Board of Directors thanking Xx. Xxxxxxx for
his service to the Company and wishing him luck in his future
endeavors;
(e) Xx. Xxxxxxx will receive his salary and benefits as an
employee up to the date of termination (December 28, 2004).
3. NO OTHER COMPENSATION. The above represents the total sum of financial
compensation due and owing to Xx. Xxxxxxx. Both parties represent that Xx.
Xxxxxxx is not due any other compensation under an employment agreement signed
on June 7, 2004 or under any other agreement that has ever been in existence up
to and including the date of the signing of this Separation Agreement.
4. EMPLOYEE AND MUTUAL COVENANTS.
(a) NO BREACHES OF DUTY. Xx. Xxxxxxx represents and warrants that he has
not breached his obligations to the Company or any of its subsidiaries or
affiliates, or engaged in any violations of the Company's bylaws, provisions or
rules and regulations issued by the Securities Exchange Commission or done
anything which in any way, shape or form would constitute a breach of his
fiduciary duties as a board member and/or as an officer of the Company. The
parties acknowledge that this Agreement is being executed predicated upon this
representation.
(b) CONFIDENTIALITY OF TERMS. The Parties agree, on their own behalf and
on behalf of their representatives, to keep the terms and amount of this
Agreement completely confidential and that they will not hereafter disclose any
such information concerning this Agreement to anyone, unless required or
permitted to do so by law. Xx. Xxxxxxx may disclose the terms of this Agreement
to his spouse and his accountants, tax advisors or preparers, each of whom shall
be required to maintain the confidentiality of this Agreement. The Company may
disclose the terms of t his Agreement to certain of its employees who need to
know, its board members, its accountants, lawyers, tax advisors or preparers, or
other advisors who need to know, each of whom shall be required to maintain the
confidentiality of this Agreement. All parties agree to disclose any information
contained in this Agreement when and if necessary to do so to comply with
regulations of the Securities and Exchange Commission.
(c) NONDISPARAGEMENT. The Parties also agree that they will not, either
directly or indirectly, hereafter make any defamatory, negative or denigrating
comments of any type or nature whatsoever about each other (or the other Party's
employees, officers, agents, consultants, affiliates, investors or business
partners) to anyone under any circumstances.
(d) AGREEMENT TO COOPERATE. Xx. Xxxxxxx agrees to cooperate with the Board
of Directors and any and all successor officers of the Company in insuring a
smooth and efficient transition. This will include, but not be limited to,
meeting with the Board and Officers prior to his termination to facilitate a
transfer of leadership, Xx. Xxxxxxx' agreement to provide to the Company prior
to his termination any and all books, records, calendars, computer disks,
documents, notes, manuals or any other materials that are the property of the
Company. Xx. Xxxxxxx further agrees to cooperate with the Company in its
investigating, prosecuting or defending of claims, demands, charges,
liabilities, causes of action or lawsuits or any other proceedings which relate
to matters of which he has knowledge as a result of his employment with the
Company. Xx. Xxxxxxx will be required to provide to the Company immediately upon
execution of this Agreement with any and all equipment, keys and identification
that are the property of the Company.
Any violations of the Employee and Mutual Covenants shall render this
Agreement null and void.
5. RELEASE OF CLAIMS. In consideration for the obligations of both parties
set forth in this Agreement and for other valuable consideration, Xx. Xxxxxxx
and the Company, on behalf of themselves, and their respective heirs, executors,
officers, directors, employees, investors, stockholders, administrators and
assigns, hereby fully and forever release each other and their respective heirs,
executors, officers, directors, employees, investors, stockholders,
administrators, parent and subsidiary corporations, predecessor and successor
corporations and assigns, of and from any claim, duty, obligation or cause of
action relating to any matters of any kind, presently known, that any of them
may possess arising from any omissions, acts or facts that have occurred up
until and including the Effective Date of this Agreement including, without
limitation:
(a) any and all claims relating to or arising from Xx. Xxxxxxx' employment
relationship with the Company and the termination of that relationship;
(b) any and all claims relating to, or arising from, Xx. Xxxxxxx' right to
purchase, or actual purchase of shares of stock of the Company;
(c) any and all claims for wrongful discharge of employment; breach of
contract, both express and implied; breach of a covenant of good faith and fair
dealing, both express and implied, negligent or intentional infliction of
emotional distress; negligent or intentional misrepresentation; negligent or
intentional interference with contract or prospective economic advantage;
negligence; and defamation;
(d) any and all claims for violation of any federal, state or municipal
statute, including, but not limited to the Civil Rights Act of 1866, as amended,
the Civil Rights Act of 1964, as amended, the Florida Fair Employment and
Housing Act, as amended, the federal and state family leave acts, the Age
Discrimination in Employment Act of 1967, the Older Workers' Benefit Protection
Act, the Americans with Disabilities Act of 1990, and the Civil Rights Act of
1991);
(e) any and all claims arising out of any other laws and regulations
relating to employment or employment discrimination; and
(f) any and all claims for attorneys' fees and costs.
The Company and Xx. Xxxxxxx agree that the release set forth in this
section shall be and remain in effect in all respects as a complete general
release as to the matters released.
6. NON-COMPETE. In exchange for the valuable consideration received
herein, Xx. Xxxxxxx agrees that for a period of one year after the execution of
this Agreement, he will not engage directly or indirectly in any employment of
any form that could compete with the business interests of the Company. This
includes, but is not limited to, consulting agreements and includes any
employment with any employer whose business is of similar scope to the
companies.
7. TRADE SECRETS. Xx. Xxxxxxx agrees to keep confidential any and all
proprietary information and trade secrets that he has acquired through his
employment with the Company. Xx. Xxxxxxx acknowledges that any disclosure of any
proprietary or trade information that he acquired during the course of his
employment with the Company would result in severe damages to the Company for
which he would be accountable.
8. BREACH OF AGREEMENT. The Parties agree and acknowledge that upon breach
by either Party of this Agreement, including the covenants contained in Sections
5, 6 or 7 above, the other Party would sustain irreparable harm, and, therefore,
they agree that in addition to any other remedies that they may have under this
Agreement or otherwise, each Party shall be entitled to obtain equitable relief,
including specific performance and injunctive relief, restraining the other
Party from committing or continuing any such breach or directing such Party to
perform its obligations pursuant to this Agreement.
9. AUTHORITY. The Company represents and warrants that the undersigned has
the authority to act on behalf of the Company and to bind the Company and all
who may claim through it to the terms and conditions of this Agreement. Xx.
Xxxxxxx represents and warrants that he has the capacity to act on his own
behalf and on behalf of all who might claim through him to bind them to the
terms and conditions of this Agreement. Each Party warrants and represents that
there are no liens or claims of lien or assignments in law or equity or
otherwise of or against any of the claims or causes of action released herein.
10. NO REPRESENTATIONS. Neither Party has relied upon any representations
or statements made by the other Party hereto which are not specifically set
forth in this Agreement.
11. SEVERABILITY. In the event that any provision hereof becomes or is
declared by a court or other tribunal of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision.
12. ARBITRATION. The Parties shall attempt to settle all disputes arising
in connection with this Agreement through good faith consultation. In the event
no agreement can be reached on such dispute within thirty (30) days after
notification in writing by either Party to the other concerning such dispute,
the dispute shall be settled by binding arbitration to be conducted in Miami,
Florida before an arbitrator to be mutually agreed upon. If the Parties cannot
agree, they shall submit the matter to the presiding judge of Miami, Dade
County, who shall select an arbitrator based on input from the Parties. The
arbitration decision shall be final, conclusive and binding on both Parties and
any arbitration award or decision may be entered in any court having
jurisdiction. The Parties agree that the prevailing party in any arbitration
shall be entitled to injunctive relief in any court of competent jurisdiction to
enforce the arbitration award. The Parties further agree that the prevailing
Party in any such proceeding shall be awarded reasonable attorneys' fees and
costs. The parties hereby waive any rights they may have to trial by jury in
regard to arbitrable claims.
13. ENTIRE AGREEMENT. This Agreement, the exhibits hereto and the other
agreements referenced in this Agreement (as such other agreements are amended by
this Agreement), represent the entire agreement and understanding between the
Company and Xx. Xxxxxxx concerning Xx. Xxxxxxx' separation from the Company, and
supersede and replace any and all prior agreements and understandings concerning
Xx. Xxxxxxx' employment relationship with the Company, termination of that
relationship, his compensation by the Company and his ownership and interests in
any stock of the Company.
14. NO ORAL MODIFICATION. This Agreement may only be amended in writing
signed by Xx. Xxxxxxx and the Company.
15. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Florida, without regard to its conflicts of law provisions.
16. EFFECTIVE DATE. This Agreement is effective upon execution by both
Parties (the "Effective Date").
17. COUNTERPARTS. This Agreement may be executed in counterparts, and each
counterpart shall have the same force and effect as an original and shall
constitute an effective, binding agreement on the part of each of the
undersigned.
18. ASSIGNMENT. This Agreement may not be assigned by Xx. Xxxxxxx or the
Company without the prior written consent of the other party. Notwithstanding
the foregoing, this Agreement may be assigned by the Company to a corporation
controlling, controlled by or under common control with the Company, including a
successor to the Company, without the consent of Xx. Xxxxxxx.
19. VOLUNTARY EXECUTION OF AGREEMENT. This Agreement is executed
voluntarily and without any duress or undue influence on the part or behalf of
the Parties hereto, with the full intent of releasing all claims. The Parties
acknowledge that:
(a) they have read this Agreement;
(b) they have been represented in the preparation, negotiation, and
execution of this Agreement by legal counsel of their own choice.
(c) they understand the terms and consequences of this Agreement and of
the releases it contains; and
(d) they are fully aware of the legal and binding effect of this
Agreement.
The Parties have executed this Separation Agreement and Mutual Release on
the respective dates set forth below.
CALYPSO WIRELESS, INC.
Dated as of December 27, 2004.
/s/ Xxxxx Xxxxxxx
-------------------------
By: /s/ Xxxxx Xxxxxxx
on Behalf of the Board of Directors /s/ Xxxx X. Xxxxx, Xx., Esq.
----------------------------
Title: Witness:
/s/ Xxxxxxx Xxxxx
---------------------------
Xxxxxxx Xxxxx
Board Member
XXXXXXX XXXXXXX, AN INDIVIDUAL
Dated as of December 27, 2004
/s/ Xxxxxxx Xxxxxxx /s/ Xxxx X. Xxxxx, Xx., Esq.
---------------------------- ----------------------------
Xxxxxxx Xxxxxxx Witness:
President/Chief Executive (Employee)
