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SEPARATION AGREEMENT & MUTUAL
RELEASE
THIS
SEPARATION AGREEMENT AND MUTUAL RELEASE (this
“Agreement”) is made as of June 4, 2008 (the
“Effective Date”) by and between GoFish
Corporation (the “Company”), a Nevada corporation
maintaining its principal offices at 706 Mission St.,
10
th Floor,
San Francisco, CA 94103, and Michael Downing an individual residing
at 2299 Pacific #51, San Francisco, CA (“Mr. Downing,”
and, collectively with Company, the “Parties,” and each
a “Party”).
WHEREAS,
Mr. Downing is currently employed by the Company as its Chief
Executive Officer pursuant to an Employment Agreement, dated
as of October 27, 2006 (the “Employment
Agreement”), and serves on the Company’s Board of
Directors (the “Board”);
WHEREAS,
Mr. Downing was previously granted an option (the “2006
Option”) to purchase 500,000 shares of common stock of
the Company under the Company’s 2006 Equity Incentive
Plan pursuant to a Stock Option Award Agreement dated October
27, 2006 (the “Option Agreement”);
WHEREAS,
Mr. Downing has debt outstanding to the Company in the amount
of $17,876.05 (the “Debt”);
WHEREAS,
Mr. Downing had previously entered into a Lock-up Agreement
with Tompkins Capital Group (“Tompkins Capital”),
dated October 27, 2006 (the “Lock-up Agreement”),
under which the Company has certain rights; and
WHEREAS,
the Company and Mr. Downing have mutually agreed to terminate
the existing employment relationship and his service on the
Board, to enter into a consulting relationship and to provide
for certain other matters.
NOW,
THEREFORE, in consideration of the mutual promises made
herein, the Company and Mr. Downing hereby agree as
follows:
1.
Cessation of Employment and Board Service .
Mr. Downing and the Company acknowledge and agree that Mr. Downing
shall resign as Chief Executive Officer of the Company and as a
member of the Board effective as of the date on which the Company
hires a new Chief Executive Officer (the “Separation
Date”). As of the Separation Date, Mr. Downing will no longer
hold any positions as an employee with the Company or on the Board.
The Employment Agreement will be terminated as of the Separation
Date and will no longer have any force or effect, except as
specifically referenced in this Agreement.
2.
Accrued Salary and Vacation; Expense Reimbursement
.
The Company agrees that it will pay Mr. Downing all accrued salary,
and all accrued and unused vacation benefits earned through the
Separation Date, if any, subject to standard payroll deductions,
withholding taxes and other obligations. Mr. Downing understands
that he is entitled to this payment regardless of whether or not he
signs this Agreement. Mr. Downing agrees that he has submitted his
final documented expense reimbursement statement reflecting all
business expenses he incurred prior to and including the Separation
Date, and acknowledges receipt of the full amount of reimbursement
therefor.
3.
Forgiveness of Debt .
The Company agrees to forgive and waive the Debt as of the
Separation Date.
4.
Lock-up Agreement and Restrictions on Transfer
.
4.1.
The
Company and Mr. Downing hereby agree to terminate the Lock-up
Agreement and the Company waives the restrictions on transfer
set forth therein. The Company will use reasonable efforts to
obtain Tompkins Capital’s agreement to terminate the
Lock-up Agreement, as provided in the Lock-up
Agreement.
4.2.
For
two years from the Effective Date, Mr. Downing will not sell
any shares of the Company’s stock during any 30 calendar
day period that would exceed twenty-five percent (25%) of the
aggregate volume of the Company’s stock that was sold in
the preceding 25 trading days.
4.3.
Upon
completion of the 90-day period provided in Rule 144, the
Company will issue a legal opinion to its transfer agent
requesting the removal of the restrictive legends on Mr.
Downing’s shares.
5.
Stock Options .
Mr. Downing and the Company agree that the 2006 Option shall be
cancelled effective as of the Separation Date with respect to all
shares of common stock of the Company subject to the 2006 Option
and the Option Agreement shall be of no further force and
effect.
6.
Consulting Services .
In consideration for the release of claims set forth below and
other promises and covenants set forth herein, the Company will
enter into a consulting agreement with Mr. Downing (or his
affiliate) for the period of one year (the "Consulting Period").
Mr. Downing will receive compensation under the consulting
agreement in the amount of one hundred twenty thousand dollars per
year ($120,000), payable monthly. In addition, as compensation for
his services as a consultant, Mr. Downing will receive an option to
purchase three hundred thousand (300,000) shares of common stock of
the Company with an exercise price equal to the closing price of
Company’s common stock on the OTC Bulletin Board on the grant
date thereof.
7.
Benefits .
Mr. Downing will be offered benefits to which he is entitled under
the Consolidated Omnibus Budget Reconciliation Act of 1985
(“COBRA”), and Mr. Downing retains all benefits under
Company’s 401(k) Plan. If Mr. Downing timely elects COBRA
benefits, Company will pay all of Mr. Downing’s COBRA
benefits, directly to the COBRA administrator, for a period of
twelve months, so that Mr. Downing is fully covered.
8.
No Other Entitlement .
Mr. Downing confirms that no other monies are due to him from
Company relating to his service as an employee. Mr. Downing
acknowledges that he has no entitlement to enter into the
consulting agreement and receive the consideration set forth in
Sections 3, 5, 6 and 7 above, other than in consideration of his
general release of all claims against Company.
9.
Company Property .
Mr. Downing shall promptly return all Company property in his
possession or control, except for Mr. Downing’s
Company-provided notebook computer, which Mr. Downing will be
allowed to retain.
10.
Confidential Information; Non-Disparagement .
Mr. Downing recognizes and acknowledges that the
performan
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