SEPARATION AGREEMENT
This Separation Agreement ("Agreement") is made and entered into by and
among TELESERVICES INTERNET GROUP INC., formerly TeleServices International
Group Inc., ("Company"), a Florida corporation with its principal executive
offices at 100 Second Avenue South, Suite 1000, St. Petersburg, Florida 33701;
ROBERT P. GORDON ("Executive"), an individual residing at 234-21st Avenue
Northeast, St. Petersburg, Florida 33704, and PERCH, INC., a Florida corporation
with its principal offices at 200 Beach Drive N.E., Unit 1, St. Petersburg,
Florida 33701, ("Perch").
WHEREAS, Executive accepted employment with Company on or about
December 4, 1998 as Chairman and Chief Executive Officer pursuant to an
Executive Employment Agreement executed by both parties and dated December 4,
1998 (the "Gordon Executive Employment Agreement"), which superseded his prior
employment agreement with Company dated January 15, 1997;
WHEREAS, Company and Executive desire to terminate both the employment
relationship and the Gordon Executive Employment Agreement, as well as
Executive's seat on Company's board of directors, upon mutually acceptable terms
and to settle any and all differences, claims and potential claims arising out
of (i) Executive's employment and termination of employment with Company, (ii)
termination of the Gordon Executive Employment Agreement, and (iii) Executive's
resignation of his seat on Company's board of directors;
WHEREAS, Perch desires to secure the services of Executive; and
WHEREAS, the parties acknowledge that Executive may be deemed to be an
affiliate of Perch;
NOW THEREFORE, in consideration of the mutual promises and other
consideration contained herein and intending to be legally bound, the parties
agree as follows:
1. SEPARATION.
a. Executive hereby resigns, effective on the date of the closing
of Company's acquisition of The Affinity Group, Inc. (the
"Employment Resignation Date"), from the following positions:
(i) Chairman and Chief Executive Officer of Company; (ii) a
director of Company; (iii) a director and officer of any of
Company's subsidiaries.
b. Company hereby assigns to Perch, without recourse, all rights,
title, and interest of Company under the Gordon Executive
Employment Agreement and all obligations, duties, promises,
covenants, representations and warranties of Company arising
thereunder after the Employment Resignation Date, including,
but not limited to, all salary and other compensation and
benefits, but excepting those obligations, duties,
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promises, covenants, representations and warranties of Company
expressly and specifically reserved to Company in this
Agreement.
c. Perch hereby accepts the assignment, without recourse, by
Company of all rights, title, and interest of Company under
the Gordon Executive Employment Agreement and all obligations,
duties, promises, covenants, representations and warranties of
Company arising thereunder after the employment resignation
date, including, but not limited to, all salary and other
compensation and benefits, but excepting those expressly and
specifically reserved to Company in this Agreement. In
addition, Perch hereby assumes the Gordon Executive Employment
Agreement and all obligations, duties, promises, covenants,
representations and warranties of Company arising thereunder
after the Employment Resignation Date, including, but not
limited to, all salary and other compensation and benefits,
but excepting those obligations, duties, promises, covenants,
representations and warranties of Company expressly and
specifically reserved to Company in this Agreement.
d. Company hereby assigns to Perch, and Perch hereby accepts
assignment of, the debts and obligations of Executive to
Company, and Company's subsidiary, GeneralSearch.com, Inc.
("GSCI"), assigns to Perch the promissory notes of Executive
to GSCI, all as set forth on Exhibit A hereto.
e. Executive hereby consents to (i) the assignment, without
recourse, by Company to Perch of all rights, title, and
interest of Company under the Gordon Executive Employment
Agreement and of all obligations, duties, promises, covenants,
representations and warranties of Company arising thereunder
after the Employment Resignation Date, including, but not
limited to, all salary and other compensation and benefits,
but excepting those obligations, duties, promises, covenants,
representations and warranties of Company expressly and
specifically reserved to Company in this Agreement; (ii) the
assumption by Perch of the Gordon Executive Employment
Agreement and all obligations, duties, promises, covenants,
representations and warranties of Company arising thereunder
after the Employment Resignation Date, including, but not
limited to, all salary and other compensation and benefits,
but excepting those obligations, duties, promises, covenants,
representations and warranties of Company expressly and
specifically reserved to Company in this Agreement; and (iii)
the assignment to Perch of (a) the debts and obligations of
Executive to Company and (b) the promissory notes of Executive
to GSCI.
f. Under Company's existing director and officer insurance
policy, Executive's actions as an officer or director of
Company up to the Employment Resignation Date are
automatically covered to the same extent as if Executive were
still an officer or director of Company, as the case may be,
and Company shall continue to purchase and maintain such
director and officer insurance coverage for a period not less
than the term of the all applicable statutes of limitation
beginning on the Employment Resignation Date.
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g. Part I of Exhibit B lists all Company securities owned by
Executive. Executive hereby forfeits certain of these
securities as set forth in Part II of Exhibit B.
h. Executive hereby acknowledges that he has removed from
Company's offices at 100 Second Avenue South, Suite 1000, St.
Petersburg, Florida 33701, all personal effects, artwork,
furniture, fixtures and equipment belonging to him, including,
without limitation, the office, and Executive hereby
relinquishes all claim, right, title and interest in and to
the personal effects, artwork, furniture, fixtures and
equipment presently situated in Company's offices at 100
Second Avenue South, Suite 1000, St. Petersburg, Florida
33701.
2. CONSIDERATION PROVIDED TO EXECUTIVE. In consideration of the actions,
covenants and releases of Executive and Perch made in this Agreement,
Company shall pay to Executive or perform the following:
a. Executive will be paid $75,000 by December 31, 2000, with
$20,000 of this amount due within five business days after the
Employment Resignation Date.
b. Simultaneously upon the full execution and delivery of this
Agreement by Executive, Company and Executive will enter into
a Consulting Agreement in the form attached hereto as Exhibit
C.
c. Company acknowledges that Executive may have personal
liability either by contract or by operation of law for
certain primary debts and primary obligations of Company,
including but not limited to the following:
(i) The bank loan to Company from NationsBank with a
current balance of approximately $134,000;
(ii) The loan or lease, as the case may be, on certain
automobiles driven by other executives of Company,
specifically an Audi, which has a balance of $18,200,
which is payable at the rate of $469 per month for 39
months, and a Lexus, which has balance of $12,000,
which is payable at the rate of $999 per month for 12
months used by other executives of Company, to the
extent that Executive shall not be required to pay
pursuant to his personal guaranties against these
obligations of Company. The said auto loans or
leases, as the case may be, show Company as the owner
or lessee;
(iii) Liability for the obligation of Company's former
subsidiary, Visitors Services International Corp.
("VSI"), to Nutmeg Systems for services rendered by
Nutmeg Systems and received by VSI;
(iv) Accrued payroll tax liability, including, taxes,
interest, and penalties of Company and its
subsidiaries; and
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(v) Ordinary and necessary expenses in reasonable amounts
incurred by Executive on behalf of Company,
including, without limitation, an invoice from the
Vinoy hotel for approximately $22,000.
Company shall use it best efforts to continue pay all of such
primary liabilities of Company when currently due.
d. For a period of nine (9) months following the employment
resignation date, Company will pay the monthly continuation
coverage payments under the Consolidated Omnibus
Reconciliation Act of 1986 ("COBRA") for any group health
insurance covered by COBRA in which Executive was a
participant at the time of his resignation and for which he
properly elects and continues to remain eligible for
continuation coverage under COBRA.
e. Company shall use its best efforts to register, at the
Company's expense and on the next appropriate registration
statement or amendment filed by the Company, (i) the shares
underlying Executive's remaining 3.5 million options on Form
S-8; and (ii) the shares underlying Executive's 553,788
options granted November 12, 1999 and Executive's 950,000
options granted December 15, 1999, for resale by Executive.
f. Company shall permit Executive to sell his 1,740,164 shares of
restricted common stock as permitted under Rule 144 of the
Securities Act of 1933, as amended, at the rate of up to
125,000 per month, and shall provide, at no cost to Executive,
an appropriate legal opinion to the Company's transfer agent
within ten business days of receipt of each request (provided
that Executive has provided to Company all necessary
documentation to process the request).
3. NON-DISPARAGEMENT. Executive and the directors, officers and senior
staff members of Company and their agents and representatives have not
and shall not communicate, directly or indirectly, any negative or
disparaging comments or information about each other or any of the
current or former officers, directors, managers, supervisors,
executives, or representatives of Company or any of its subsidiaries
and affiliates concerning the reputation or status of the other party's
professional abilities, business, or financial condition. In the event
Executive is asked by a person inside or outside Company or any of its
affiliates about his separation from Company and/or the differences
between Executive and Company or any of its subsidiaries and
affiliates, he may state only that he resigned from Company in all
capacities, except that Company has retained his services on a
non-exclusive basis, and words to the effect that he and Company have
resolved any and all differences they may have had on an amicable
basis. In the event a member of Company's staff is asked by a person
inside or outside of Company or any of its subsidiaries and affiliates
about Executive's separation from Company and/or the differences
between Executive and Company and any of its subsidiaries and
affiliates, they may state only that Executive resigned from Company in
all capacities, except that Company has retained his services on a
non-exclusive basis, and words to the effect that Executive and Company
have resolved any and all differences they may have had on an amicable
basis.
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4. EXECUTIVE'S RELEASE OF ALL CLAIMS. In consideration of this Agreement
and the consulting agreement attached hereto as Exhibit C, including,
but not limited to, the mutual, binding promises contained herein and
in the consulting agreement, and intending to be legally bound thereby,
Executive, on behalf of himself, his executors, legatees, devisees,
administrators successors, and assigns, does hereby irrevocably,
forever and unconditionally release and forever discharge Company and
each of its past, present and future stockholders, agents, directors,
officers, executives, representatives, attorneys, and its predecessors,
successors, parents, affiliates, insurers, heirs, executors,
administrators and assigns, and all persons acting by, through, under
or in concert with any of them (collectively referred to herein as the
"Company Released Parties"), of and from any and all actions, causes of
action, suits, debts, judgments, charges and expenses (including
attorneys' and paralegal fees and costs at all levels of dispute
resolution), of any nature whatsoever, asserted or unasserted, known or
unknown, ("Claims"), which Executive ever had, now has, or hereafter
may have against the Company Released Parties, in any way arising out
of or related to Executive's employment and/or other capacity and/or
service as a director and/or otherwise with Company and/or any of its
subsidiary and/or affiliated entities and/or the termination of his
employment and/or other capacities and/or services with Company and/or
its subsidiary and affiliated entities.
In expansion of, and not in limitation of, the general nature of the
foregoing release, Executive releases and forever discharges any and
all Claims he may have had against such Company Released Parties in any
way arising out of or related to Executive's employment and/or other
service and/or capacity with Company and/or any of its subsidiary
and/or affiliated entities and/or the termination of his employment
and/or other services and/or capacities with Company and/or its
subsidiary and/or affiliated entities, regardless of whether any or all
of such Claims arises under any state or federal statute, ordinance,
regulation, order or common law. The Claims released by Executive
include, but are not limited to, those under the Age Discrimination in
Employment Act ("ADEA"), 29 U.S.C. Section 621 et seq.; Title VII of
the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. Section 2000e et
seq.; the Americans with Disabilities Act of 1990 ("ADA") 42 U.S.C.
Section 12101 et seq.; the Family and Medical Leave Act of 1993
("FMLA"), 29 U.S.C. Section 2601 et seq.; and the Employee Retirement
Income Security Act of 1974 ("ERISA"), 29 U.S.C. Section 1001 et seq.;
and as any or all of the foregoing are or may be amended, or any other
federal, state or local statute, rule or ordinance and any other claims
in law or equity. In further expansion of the foregoing releases,
Executive releases the Company Released Parties of and from any and all
Claims based on constructive discharge, express, implied or
quasi-contract, and breach of the implied covenant of good faith and
fair dealing. In still further expansion of the foregoing releases,
Executive releases the Company Released Parties of and from any and all
Claims for fraud of any kind. Expanding the foregoing releases further
still, Executive releases Company Released Parties of and from any and
all Claims for wrongful discharge of any kind (including in violation
of public policy and constructive discharge), infliction of emotional
distress, whether intentional or negligent, defamation, negligence,
conspiracy, any and all other common law torts and discrimination on
any basis prohibited by statute, public policy or otherwise.
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5. COMPANY'S RELEASE OF ALL CLAIMS. As part of the consideration for
Executive entering into this Agreement, Company for and on behalf of
itself and all of its past, present and future subsidiaries, parent
corporations, affiliates, directors, officers, executives,
representatives, attorneys, insurers, heirs, executors, administrators,
assigns, and agents, and all persons acting by, through, under or in
concert with any of them, does hereby irrevocably, forever and
unconditionally release and forever discharge Executive, his personal
representatives, heirs, legatees, devisees, administrators, successors,
assigns, and future employers, and all persons acting by, through,
under or in concert with any of them (collectively referred to herein
as the "Executive Released Parties"), of and from any and all Claims
which Company ever had, now has, or hereafter may have against the
Executive Released Parties, in any way arising out of or related to
Executive's employment and/or other service and/or capacity with
Company or any of its subsidiary or affiliated entities or the
termination of his employment and/or other services and/or capacities
with Company and its subsidiary and affiliated entities.
6. CLAIMS RELEASED CONSTRUED BROADLY. Executive and Company intend that
the provisions of this Agreement regarding the Claims being released by
each of them under the provisions of this Agreement shall be construed
as broadly as possible. Provided, however, that nothing contained in
this Agreement is intended to waive any claims or rights based on this
Agreement or a breach of this Agreement, or based on conduct or any
event that occurs after the effective date of this Agreement.
7. ASSUMPTION OF RISK OF CHANGE IN FACTS. Executive and Company understand
that the facts under which they give their releases hereunder may prove
to be different than now known or believed by them, and each accepts
and assumes the risk thereof and agrees that their releases shall
remain in full force and effect and not subject to modification,
termination or rescission by reason of any difference in facts.
8. COVENANT NOT TO SUE. Subject to full performance of the other party's
obligations under this Agreement, each party hereto agrees that neither
such party nor any person or entity on such party's behalf has or shall
commence, maintain or prosecute any lawsuit, complaint, action or
proceeding of any kind against the other or their respective Released
Parties with respect to any act, omission or other matter occurring up
to and including the effective date of this Agreement. The foregoing
notwithstanding, and subject to paragraph 17, this covenant not to sue
does not extend to any claim for breach of this Agreement or the
consulting agreement. |
