Exhibit 10.34
SEPARATION, TERMINATION AND
RELEASE AGREEMENT
This Separation, Termination and
Release Agreement (this “Agreement”) is made by and
among Paul Streitz and his heirs, executors, administrators,
successors, assigns and other personal representatives
(“Streitz”), Streitz Properties, LLC, a Minnesota
limited liability company (“Streitz Properties”),
Nexxus Lighting, Inc., a Delaware corporation
(“Nexxus”) and Advanced Lighting Systems, LLC, a
Delaware limited liability company (“ALS”) and the
affiliates, subsidiaries, parents, predecessors, successors and
assigns of Streitz Properties, ALS and Nexxus. Streitz, Streitz
Properties, Nexxus and ALS are sometimes collectively referred to
herein as the “Parties.”
RECITALS
A. Effective September 28,
2007, Advanced Lighting Systems, Inc., a Minnesota corporation
(“Advanced Lighting”) was merged (the
“Merger”) with and into ALS pursuant to the terms of
that certain Agreement and Plan of Merger, dated as of
August 3, 2007, by and among Nexxus, Advanced Lighting, ALS
and Streitz (the “Merger Agreement”).
B. Streitz was the sole shareholder
of Advanced Lighting and is the sole member of Streitz
Properties.
C. ALS is a wholly owned subsidiary
of Nexxus.
D. In connection with the
transactions contemplated by the Merger Agreement, ALS and Streitz
entered into an Employment and Non-Competition Agreement dated as
of September 28, 2007 (the “Employment
Agreement”). Upon the terms and subject to the conditions set
forth herein, Streitz and ALS desire to terminate Streitz’
employment pursuant to the Employment Agreement effective
February 28, 2009.
E. In connection with the
transactions contemplated by the Merger Agreement, ALS and Streitz
Properties entered into an Amended and Restated Lease Agreement
dated October 2007 (the “Lease Agreement”). Upon the
terms and subject to the conditions set forth herein, ALS and
Streitz Properties desire to terminate the Lease Agreement
effective February 28, 2009.
F. By way of this Agreement, the
Parties desire to evidence the terms and conditions governing the
termination of Streitz’ employment relationship with ALS and
the termination of the Lease Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of
the mutual promises and commitments specified herein, the Parties
agree as follows:
1. Recitals : The foregoing
recitals are true and correct and are expressly incorporated herein
as terms of this Agreement.
Separation, Termination and Release
Agreement
2. Resignation . Subject to
the terms and conditions of this Agreement, Streitz hereby confirms
that he has resigned his employment with ALS effective as of
February 28, 2009 (the “Termination Date”), and
ALS hereby confirms that it has accepted his
resignation.
3. Termination of Lease
Agreement .
(a) The Lease Agreement and any
guaranty thereof, and any written or oral modifications thereto,
and any independent prior, contemporaneous, or subsequent written
or oral agreements between Nexxus, ALS, Streitz and/or Streitz
Properties and their affiliates, subsidiaries, parents,
predecessors, successors and assigns relating thereto are hereby
terminated. Each of the Parties hereby agrees that all things done
and to be done under the Lease Agreement and any other independent,
prior, contemporaneous, or subsequent written or oral agreements or
understandings relating thereto shall be deemed to have been done,
paid, performed and satisfied, as the case may be. Streitz and
Streitz Properties, on the one hand, and ALS and Nexxus on the
other, agree that they shall not have a claim against the other for
any sums owed, or to be owed, or for any performance to have been
rendered or to be rendered, or for any reason or cause whatsoever
relating to, arising out of, or in connection with the Lease
Agreement or any guaranty thereof. Streitz Properties understands
that this release specifically extinguishes and releases any claims
it may have or had under the Lease Agreement.
(b) Effective on the Termination
Date, ALS shall transfer ownership to Streitz of (i) two
personal computers, (ii) certain modular office furniture,
(iii) the all-terrain vehicle listed as a fixed asset of ALS
and (iv) any other fixed asset of ALS that Nexxus and Streitz
agree to in writing.
(c) Without payment of any
additional consideration by ALS or Nexxus except as set forth in
this Agreement, each of Streitz and Streitz Properties hereby
agrees to allow ALS and/or Nexxus to use and remain in possession
of the Leased Premises (as such term is defined in the Lease
Agreement), together with improvements thereon located at 519
Lincoln Road, Sauk Centre, Stearns County, Minnesota, further
described in Exhibit A to the Lease Agreement. ALS and/or Nexxus
shall be able to use and remain in possession of the Leased
Premises until the earlier of (x) vacating the Leased Premises
by written notice to Streitz Properties, or (y) thirty days
after the receipt of written notice from Streitz Properties
requesting surrender of the Leased Premises (the “Occupancy
Period”). The Parties agree as follows with respect to the
Leased Premises during the Occupancy Period:
(i) Except in the case of negligence
or willful and intentional acts or omissions of Streitz Properties,
its agents or employees, ALS agrees to save, hold harmless and
defend Streitz Properties against any liability for damages to any
person or property in or about the Leased Premises during the
Occupancy Period;
(ii) ALS shall surrender the Leased
Premises in good condition and repair, normal wear and tear
excepted. On or before the last day of the Occupancy Period, ALS
shall at its expense remove all of its equipment from the Leased
Premises; and
(iii) Streitz Properties
acknowledges that ALS has deposited $4,000 as security for
ALS’ performance under the Lease Agreement (the “Damage
Deposit”). If ALS shall default
Separation, Termination and Release
Agreement
in the performance of any of obligations under
this Section 3, Streitz Properties may apply the Damage
Deposit towards the payment of any damage or liability caused by
such default. To the extent that the Damage Deposit is not
sufficient to pay in full any damage or liability caused by such
default, ALS and Nexxus agree to pay any remaining amount in
immediately available funds to an account designated by Streitz
Properties. To the extent that the Damage Deposit is not used
towards the payment of any damage or liability caused by such
default, the Damage Deposit shall be returned to ALS promptly upon
termination of the Occupancy Period.
4. Obligations of Nexxus and
ALS .
(a) ALS shall continue to pay
Streitz at his current salary level on ALS’ regular pay dates
through the Termination Date for his continued employment with ALS
through the Termination Date. All other employee benefits provided
to Streitz by ALS on the date of this Agreement, will continue to
be provided to Streitz through the Termination Date, except that
ALS will continue to provide Streitz with health insurance through
March 31, 2009. Notwithstanding anything contained in this
Agreement to the contrary, subject to, and in accordance with, the
terms and conditions of the Employment Agreement, ALS shall pay to
Streitz any performance bonus compensation earned by Streitz for
the year ended December 31, 2008.
(b) Provided that each of Streitz
and Streitz Properties executes and delivers this Agreement and
that Streitz does not revoke this Agreement pursuant to the terms
set forth herein, as additional consideration for the covenants,
agreements and releases from Streitz and Streitz Properties set
forth in this Agreement, within thirty days after the Termination
Date, Nexxus shall issue to Streitz an aggregate of 78,000 shares
of unregistered common stock, $.001 par value per share of Nexxus
(the “Nexxus Common Stock”). Each of Streitz and Nexxus
acknowledges and agrees that Streitz has elected to acquire the
Nexxus Common Stock in lieu of a cash payment from Nexxus equal to
the market value of the Nexxus Common Stock (as determined in
accordance with applicable Nasdaq rules).
(i) Each of Streitz and Streitz
Properties acknowledges that the shares of Nexxus Common Stock to
be issued to Streitz hereunder will be restricted securities which
may not be sold, transferred or otherwise disposed of except
pursuant to an effective registration statement of Nexxus filed
under the Securities Act of 1933, as amended (the “Securities
Act”), or in accordance with an opinion of counsel in form
and substance reasonably satisfactory to Nexxus that an exemption
from such registration is available.
(ii) The certificate representing
the Nexxus Common Stock issued to Streitz hereunder shall bear the
following legend:
THE SHARES REPRESENTED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE “ACT”) AND MAY NOT BE SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF BY THE HOLDER EXCEPT PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT FILED UNDER THE ACT, AND IN
COMPLIANCE WITH APPLICABLE SECURITIES
Separation, Termination and Release
Agreement
LAWS OF ANY STATE WITH RESPECT
THERETO, OR IN ACCORDANCE WITH AN APPLICABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF SUCH ACT.
The stock certificates evidencing
the Nexxus Common Stock may also bear any legends required by
applicable state blue sky Laws.
5. Investment Intent; Accredited
Investor Status . On behalf of himself and Streitz Properties,
Streitz hereby represents and warrants to Nexxus that he has had
the opportunity to discuss the transactions contemplated hereby
with Nexxus and has had the opportunity to obtain such information
pertaining to Nexxus as has been requested, including but not
limited to filings made by Nexxus with the Securities and Exchange
Commission (“SEC”) under the Securities Exchange Act of
1934, as amended. On behalf of himself and Streitz Properties,
Streitz hereby represents and warrants to Nexxus that he is the
sole member of Streitz Properties and that he is an
“accredited investor” within the meaning of Regulation
D promulgated under the Securities Act, and has such knowledge and
experience in business or financial matters that he is capable of
evaluating the merits and risks of an investment in Nexxus Common
Stock. On behalf of himself and Streitz Properties, Streitz hereby
represents and warrants to Nexxus that (i) he is acquiring the
Nexxus Common Stock for his own account for purposes of investment
and he has no present intention to distribute such Nexxus Common
Stock, and (ii) he can bear the economic risk of losing his
investment in Nexxus Common Stock and has adequate means for
providing for his current financial needs and contingencies.
Streitz hereby represents that he has the financial acumen and
sophistication to make an informed investment decision with respect
to the shares of Nexxus Common Stock to be issued hereunder,
understands that such shares are restricted and not freely
tradable, and has had the opportunity to inquire to Nexxus and ask
all relevant questions regarding Nexxus, its operations and
financial condition and has received answers to any and all of such
questions. Streitz represents and warrants to Nexxus that he has
reviewed Nexxus’ public filings with the Securities and
Exchange Commission, including the risk factors set forth therein.
Streitz further represents and warrants that he is a resident of
the State of Minnesota, and that he understands that Nexxus has
relied on the aforesaid representations in entering into this
Agreement and issuing and agreeing to issue shares of Nexxus Common
Stock to Streitz.
6. Earnout Payments under Merger
Agreement . Notwithstanding anything contained in this
Agreement to the contrary, subject to the terms and conditions of
the Merger Agreement, Nexxus shall pay and deliver to Streitz any
Earnout Payments due and payable to Streitz pursuant to the terms
of the Merger Agreement.
7. General Release . In
consideration for the Nexxus Common Stock and the other
consideration set forth herein and subject to Section 18 of
this Agreement, Streitz agrees, for himself and his heirs,
representatives, successors and assigns, that he has been finally
and permanently separated from employment with ALS, and that he
waives, releases, acquits, and forever discharges ALS, Nexxus,
their owners, members, shareholders, directors, officers, managers,
supervisors employees and agents (collectively, the “Nexxus
Indemnitees”), from any and all claims, known or unknown,
that he has or may have against the Nexxus Indemnitees, including
but not limited to any claims of breach of express or implied
contract, wrongful, retaliatory or constructive discharge, fraud,
misrepresentation, defamation, liability in tort, claims
Separation, Termination and Release
Agreement
for expense reimbursement, claims of any kind
that may be brought in any court or administrative agency, any
claims under Title VII of the Civil Rights Act of 1964, the Civil
Rights Act of 1991, as amended, the Age Discrimination in
Employment Act, the Americans With Disabilities Act, the
Employ
