SEPARATION AND RELEASE
AGREEMENT
This Separation and Release Agreement
(the “ Agreement ”) is entered
into as of September 13, 2006, by and among Russell C. Mix (“
Mix ”), and Spectre Gaming, Inc., a
Minnesota corporation (the “ Company
”), with respect to the separation of Mix from employment
with the Company and the termination of certain obligations among
the parties.
INTRODUCTION
A. Mix and the Company are parties to a certain
Employment Agreement dated April 16, 2004 (the “
Employment Agreement ”), and a certain Stock
Option Agreement dated on or about March 22, 2004, relating to the
grant of options to purchase up to 600,000 shares of the
Company’s common stock at $1.50 per share, as described in
the Employment Agreement (such agreement, the “
Existing Option Agreement ”).
B. The parties have agreed to terminate the
Employment Agreement and the Existing Option Agreement on the terms
and conditions set forth herein.
C. In furtherance of Mix’s separation from
the Company and the termination of the Employment Agreement and the
Existing Option Agreement, and simultaneously with the execution
and delivery of this Agreement, the parties will enter into a New
Stock Option Agreement as set forth in Sections 1 and 2 of this
Agreement. In addition, the parties have agreed to other terms and
conditions related to Mix’s separation from the Company,
including mutual releases of potential claims against each
other.
D. In order to effectuate the separation, the
parties desire to enter into this Agreement and set forth in
writing their respective rights, obligations, duties and remedies
pertaining to the separation of Mix from the Company and the other
matters contemplated hereby.
AGREEMENT
Now, Therefore, in consideration of the
foregoing facts and premises hereby made a part of this Agreement,
the mutual covenants set forth herein, and for other good and
valuable consideration the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally
bound, hereby agree as follows:
(a) Mix hereby resigns from his position as the
Company’s Chief Executive Officer.
(b) Mix hereby acknowledges that he has executed
and delivered the New Stock Option Agreement attached hereto as
Exhibit A (the “ New
Stock Option Agreement ”), prior to the
execution and delivery of this Agreement.
(c) Mix hereby agrees to execute and deliver the
Consulting Agreement, in the form attached hereto as Exhibit
B (the “ Consulting Agreement ”),
simultaneously with the execution and delivery of this
Agreement.
(d) Mix hereby provides the release set forth in
Section 3(b) of this Agreement, the employment-related releases set
forth in Section 5 of this Agreement, and the covenants set forth
in Sections 6 and 7 of this Agreement.
2. Obligations of the Company.
(a) The Company hereby agrees to pay Mix, on the
first business day after the lapse of Mix’s recission rights
described in Section 5 below, a total of Fifteen Thousand and
No/100 Dollars ($15,000.00) as full payment for Mix’s accrued
but unpaid vacation time under the Employment Agreement, together
with all reasonable Company-related expenses submitted to the
Company by Mix by such time (in the manner consistent with past
practice and policies of the Company).
(b) The Company hereby acknowledges that it has
executed and delivered the New Stock Option Agreement prior to the
execution and delivery of this Agreement.
(c) The Company hereby agrees to execute and
deliver the Consulting Agreement simultaneously with the execution
and delivery of this Agreement.
(d) The Company hereby provides the release set
forth in Section 3(a) of this Agreement, and the covenants set
forth in Section 8 of this Agreement.
3. Mutual Releases. The parties hereby provide the following
releases:
(a) The Company hereby releases and forever
discharges Mix of and from any and all past, present and future
claims, demands, liabilities, judgments and causes of action, at
law or in equity, known or unknown, asserted or unasserted,
liquidated or unliquidated, absolute or contingent, accrued or not
accrued, which the Company ever had, presently has, might have in
the future, claim to have, or claim to have had against Mix arising
out of, touching upon, relating to or in any manner connected with:
(i) Mix’s affiliation with the Company prior to and including
the date of this Agreement, including but not limited to his
position as an employee, officer and director of the Company; and
(ii) the Company or the operation and conduct of the
Company’s business prior to and including the date of this
Agreement; provided, however , that Mix’s obligation
and liability for the observation and performance of this
Agreement, the New Stock Option Agreement and the Consulting
Agreement is specifically excluded from the foregoing
release.
(b) Mix hereby releases and forever discharges the
Company and its employees, agents, affiliates and representatives
(collectively, the “ Company Released
Parties ”) of and from any and all past, present and
future claims, demands, liabilities, judgments and causes of
action, at law or in equity, known or unknown, asserted or
unasserted, liquidated or unliquidated, absolute or contingent,
accrued or not accrued, which Mix ever had, presently has, might
have in the future, claim to have, or claim to have had against any
of the Company Released Parties arising out of, touching upon,
relating to or in any manner connected with: (i) any of the Company
Released Parties’ affiliation with the Company prior to and
including the date of this Agreement, including but not limited to
any of their positions as an employee, shareholder, officer and/or
director of the Company; (ii) the Company or the operation and
conduct of the Company’s business prior to and including the
date of this Agreement; and (iii) any and all claims under the ADEA
and MHRA as indicated in Section 5 below; provided,
however , that obligation and liability of the Company for the
observation and performance of this Agreement, the New Stock Option
Agreement and the Consulting Agreement is specifically excluded
from the foregoing release.
4. Non-Admission. Even though Company has given Mix valuable
consideration for the release set forth in Section 3(a) above, the
Company does not admit that it is responsible or legally obligated
to Mix, and in fact the Company denies that it is responsible or
legally obligated to Mix except as specifically provided under this
Agreement. Similarly, even though Mix has given the Company
valuable consideration for the release set forth in Section 3(b)
above, Mix does not admit that he is responsible or legally
obligated to the Company, and in fact Mix denies that he is
responsible or legally obligated to the Company except as
specifically provided under this Agreement.
5. Employment-Related Releases.
Mix understands, acknowledges and
agrees to the following paragraphs:
(a) The release set forth above in Section 3(b)
extends to all of Mix’s rights and claims for (i) alleged
discrimination and any other rights and claims under the federal
Age Discrimination in Employment Act (the “
ADEA ”), Minnesota Human Rights Act
(the “ MHRA ”), or any other
federal, state or local law, (ii) all claims arising out of his
employment or separation from employment with the Company,
including but not limited to any alleged breach of contract,
wrongful termination, defamation, invasion of privacy, tortious
interference with contract, and/or infliction of emotional distress
(intentional or otherwise), (iii) all claims for any other
alleged unlawful employment practices arising out of or relating to
Mix’s employment or termination of employment with and
separation from the Company, and (iv) all claims for any other form
of pay, including but not limited to holiday pay, vacation pay and
sick pay (except as provided in Section 2(a) above).
(b) The Company has advised Mix to consult an
attorney prior to signing this Agreement. Mix understands that he
has 21 days to consider his release of age discrimination claims
under the ADEA, beginning on the date of this Agreement. Further,
Mix understands that if he signs this Agreement, he will then be
entitled to revoke such release of any rights and claims of age
discrimination under the ADEA within seven days of executing this
Agreement; and the release of his ADEA rights and claims shall not
become effective or enforceable until the seven-day period has
expired.
(c) Mix further understands that he has the right
to rescind his release of discrimination rights and claims under
the MHRA within 15 calendar days of the date of this Agreement. Mix
understands that if he desires to rescind his release of
discrimination rights and claims under the MHRA, he must put his
rescission request in writing and deliver it to the Company by hand
or by mail within 15 calendar days of executing this Agreement. Mix
understands that if he delivers any rescission request by mail, it
must be: (i) postmarked within 15 calendar days of the day on which
he signs this Agreement; (ii) addressed to the Company at 14200
23rd Avenue N., Minneapolis, Minnesota 55447, attention: Chief
Financial Officer; and (iii) sent by certified mail, return-receipt
requested. Mix understands that, if he revokes or
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