SEPARATION AGREEMENT
THIS AGREEMENT ,
entered into as of May 2, 2008, by and among ANDRES ERICSSON (the
“Executive”) and MobiClear, Inc., a Pennsylvania
corporation (the “Company”).
WHEREAS , the Executive
and the Company wish to terminate the employment relationship
between the Executive and the Company.
NOW, THEREFORE , in
consideration of the mutual promises and covenants herein
contained, the parties agree as follows:
1.
Termination .
The employment of Executive as Chief Executive Officer by the
Company is hereby terminated effective as of April 30, 2008 (the
“Termination Date”) and, except as otherwise set forth
herein, Executive shall not receive any salary or other benefits
for the period following the Termination Date. In addition, the
membership of Executive as a member of the board of directors of
the Company is hereby terminated effective as of the Termination
Date.
2.
Compensation .
In consideration of Executive entering into this Agreement
(including the releases contained herein), and in full payment of
all amounts due to Executive from the Company based on
Executives’ employment with the Company, the Company shall
pay the following amount:
(a) Pay to
the Executive, all accrued and unpaid salary up to and including
the Termination Date;
(b) Reimburse the
Executive for all expenses incurred in connection with his
employment with the Company up to and including the Termination
Date;
(c) Deliver
to the Executive an option to purchase shares of common stock of
the Company as set forth on Exhibit A attached hereto.
3.
Executives’ Release
. Except for (i) claims
arising out of breach of this Agreement, and (ii) claims by third
parties against the Executive with respect to the Company, its
Executives, officers or representatives, its business or
operations, or the business or operations of affiliates of the
Company, for which Executive is entitled by law to indemnification
from the Company, the Executive, for himself and his respective
heirs, dependents, executors, administrators, legal
representatives, successors and assigns hereby releases and forever
discharges the Company, its parent, subsidiaries, and affiliated
entities (the “Affiliates”) and the Company’s and
the Affiliates’ officers, directors, Executives, stockholders
and agents (collective, the “Company Releasees”) from
any and all actions, causes of action, suits, claims, damages,
liabilities, sums of money and demands, in law or equity
(collectively “Claims”), whether known or unknown,
which the Executive, ever had, now has, or hereafter can, shall or
may have against the Company Releasees, or any of them, for, upon
or by reason of any fact, matter, cause or thing whatsoever, from
the beginning of the world through the date hereof arising out of
any association between the Executive and the Company Releasees or
any of them.
4.
Company’s Release
. The Company Releasees
hereby releases and forever discharges the Executive, and his
respective heirs, dependents, executors, administrators, legal
representatives, successors and assigns from any Claims whether
known or unknown, which the Company Releasees, ever had, now has,
or hereafter can, shall or may have against the Executive upon or
by reason of any fact, matter, cause or thing whatsoever, from the
beginning of the world through the date hereof arising out of any
association between the Executive and the Company Releasees or any
of them.
(a) Executive agrees
that he shall not at any time, except as may be required by court
order or law, directly or indirectly use (for his own benefit or
the benefit of any other person or entity), divulge or otherwise
disclose, or cause to be used, divulged or disclosed any
Confidential Information; provided, however, that the foregoing
shall not extend to the disclosure of any such information which at
the time of disclosure was in the public domain or was readily
available through public sources other than as a result of breach
of this Agreement or any other confidentiality agreement with the
Company or any of its Affiliates known to Executive. For purposes
of this Agreement, the term “Confidential Information”
means all proprietary, confidential and non-public information
(whether written or oral) concerning the Company or its Affiliates,
including, but not limited to, information about the
Company’s or any of its Affiliates’ intellectual
property, procedures, operations, customers (including, without
limitation, customer lists, compilations, information and billing
records) finances, prospects, Executives, consultants and
contractors, information relating to the research, development,
production, manufacturing, sales and distribution of the
Company’s products, processes and techniques, memoranda,
organizational, promotional and merchandising materials and
strategies. In the event that the Executive is requested or
required by court order or law to disclose any of the Confidential
Information, he shall provide the Company with prompt written
notice of any such request or requirement so that the Company or
any other person included in the Company Releasees will have a
reasonable period of time in which to seek a stay or other
protective order or other appropriate remedy prior to disclosure of
the Confidential Information.
(b) All
Confidential Information shall be and remain the sole property of
the Company. Upon the execution hereof, the Executive shall return
to the Company any and all documents, records, notebooks, files,
correspondence, reports, surveys, analyses, assessments, memoranda
or similar materials (whether in paper or electronic format, and
including all copies thereof) containing Confidential Information,
whether prepared by the Executive or by others.
6.
Non-Solicitation . From the date hereof through December 31, 2008, the Executive
agrees that he will not, directly or indirectly, for his own
benefit or for the benefit of any other Person:
(i) influence or
attempt to influence any Person to (A) terminate or modify such
Person’s employment or other professional relationship with
the Company and/or its affiliates, or (B) employ, consult or
otherwise retain, directly
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or indirectly, any Person who is (or during the
twelve months prior to the date hereof was) employed, by the
Company or its affiliates;
(ii) influence or
attempt to influence a supplier or customer of the Company or its
affiliates, or any other Person with whom the Company or its
affiliates shall have dealt, to terminate or modify any written or
oral agreement or course of dealing with the Company or its
affiliates; or
(iii) influence
or attempt to influence a supplier or customer of the Company or
its affiliates, or any other Person with whom the Company or its
affiliates shall have dealt, for the purpose of offering any
services or products which are substantially similar or comparable
to the services or products offered by the Company to its
affiliates.
For purposes of this Agreement: (i) the term
“customers of the Company” shall be deemed to mean and
include any Person with whom or with which the Company or any
affiliate of the Company transacted business or had commercial
dealings on the date hereof or during the 12 month-period prior to
the date hereof; and (ii) the term “Person” shall mean
any individual, corporation, partnership, limited liability
company, association, joint-stock company, trust, unincorporated
organization, joint venture, entity, court or government (or
political subdivision or agency thereof).
(a) Absent
any breach of this Agreement by the Company, the Executive agrees
that for and during the period from the date hereof through
December 31, 2009 (the “Non-Disparagement Period”), he
will not disparage (or induce or encourage others to disparage) the
Company, any of Affiliates or any of its or their officers,
directors, Executives or shareholders. As used herein, the term
“disparage,” includes, without limitation, comments or
statement to the press, any of the Company’s or
Affiliates’ Executives or any person with whom the Company or
any Affiliate has a business relationship which is designed to or
would reasonably be expected to adversely affect in any manner, the
conduct of any of the Company’s or any of Affiliates’
business or the business or personal reputations of the Company,
its Affiliates or any of the Company’s or its
Affiliates’ officers, directors, Executives or
shareholders.
(b) Absent
any breach of this Agreement by the Executive, the Company, for
itself and its officers directors and Executives, agrees that for
and during the Non-Disparagement Period, it will not disparage (or
induce or encourage others to disparage) the Executive. As used
herein, the term “disparage,” includes, without
limitation, comments or statement to the press, any of the
Company’s or its affiliates’ Executives or any person
known to the Company to have a business relationship with Executive
which is designed to or would reasonably be expected to adversely
affect in any manner the conduct of the Executive’s business
or the personal reputation of the Executive.
The Executive acknowledges and agrees that his
compensation hereunder is in consideration for, among other things,
the covenants set forth in Sections 5, 6 and 7 and that such
restrictive covenants are (i) necessary to protect the goodwill and
other proprietary interests of
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the Company and (ii) reasonable and valid in scope
and in all other respects. If any court of competent jurisdiction
determines that any of such covenants, or any part thereof, are
invalid or unenforceable for any reason, such court shall have the
power to modify such covenants, or any part thereof, and in such
modified form, such covenants shall then be valid and
enforceable.
The Executive hereby acknowledges and agrees that
any breach of one or more provisions contained in Sections 5, 6 and
7 of this Agreement shall be considered a material breach of this
Agreement. In the event of any such breach, due to the difficulty
of calculating the damages that might be sustained directly or
indirectly as a result of such breach, the Executive hereby
acknowledges that the Company would not have a remedy at law
adequate to address such breach, and the Company shall be entitled,
upon showing of breach of this Agreement, to injunctive relief, in
addition to any remedies at law.
8.
Assurance of Cooperation
. From the date hereof through May 31, 2008, the
Executive agrees to cooperate with the Company and to take such
actions as may be reasonably requested by the Company, to ensure
the transition of functions and duties heretofore held by the
Executive to other (and new) Executives of the Company without any
material business interruptions.
9.
Legal Fees . In
the event any party to this Agreement defaults in the performance
of its or his obligations hereunder or breaches any provision
hereof, the non-defaulting or non-brea
