9. COMPANY RECORDS; RETURN OF COMPANY PROPERTY. Executive represents that
on the Employment Resignation Date, he shall return to Company any of
the following that he has in his possession: records and business
documents, whether on computer or hard copy, and other materials
(including but not limited to computer disks and tapes, computer
programs and software, office keys, correspondence, files, customer
lists, technical information, customer information, pricing
information, business strategies, sales records and copies thereof)
(collectively, the "Company Records") provided by Company and/or its
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predecessors, subsidiaries or affiliates and/or obtained as a result of
his employment with, or in any of his capacities with, or rendering of
services for, Company and/or its predecessors, subsidiaries or
affiliates, and/or created by Executive while employed by and/or
rendering services to or for Company and/or its predecessors,
subsidiaries or affiliates. Executive acknowledges that all such
Company Records are the property of Company. In addition, Executive
shall promptly return in good condition any and all cellular phone
equipment, pagers, credit cards, business cards, computer equipment and
accessories belonging to and/or leased by Company. As of Executive's
Employment Resignation Date, Company will make arrangements to remove,
terminate or transfer from Executive any and all business communication
lines including network access, cellular phone, fax line and other
business numbers belonging to or leased by Company.
10. CONFIDENTIAL INFORMATION. Executive acknowledges that, during his
employment and other service with Company and/or its subsidiary or
affiliated entities, he has had access to confidential and other
information proprietary to Company and/or its subsidiary or affiliated
entities, including but not limited to trade secrets, operations,
customer information, customer prospects, strategic plans, inventions,
business plans, formulas processes, designs, methods, techniques,
know-how, systems, software programs, works of authorship, plans,
proposals, information about products, and other proprietary
information (the "Confidential Information"). Executive agrees that he
has not and shall not at any time disclose to any person or entity the
Confidential Information acquired during or in connection with his
employment with or in rendering services to Company and/or any of its
subsidiaries and affiliates without prior written permission from
Company. Executive agrees that he shall keep secret the Confidential
Information and all matters that have been entrusted to him and shall
not use or attempt to use any of the Confidential Information in any
manner that may injure or cause loss or may be calculated to injure or
cause loss, whether directly or indirectly, to Company and/or its
subsidiaries and affiliates.
The above restrictions shall not apply to: (i) information that at the
time of disclosure is in the public domain through no fault of
Executive; (ii) information received from a third Party outside of
Company that was disclosed without a breach of any confidentiality
obligation; (iii) information approved for release by written
authorization of Company; or (iv) information that may be required to
be disclosed by law or by an order of any court, agency or proceeding,
provided that Executive shall provide Company with notice of any such
required disclosure once Executive has knowledge of it and will provide
all reasonable assistance requested by Company to obtain an appropriate
protective order with respect to such information.
11. KNOWING AND VOLUNTARY AGREEMENT. Each party hereto hereby acknowledges
that such party has carefully read and understands all of the
provisions and effects of this Agreement; that each is voluntarily and
knowingly entering into this Agreement free of coercion or duress; and
that in agreeing to sign this Agreement, the parties have not, except
for representations, promises, statements, or explanations made herein
or in an exhibit attached hereto, relied on any representations,
promises, agreements, statements or explanations made by any party
hereto or their respective attorneys concerning the terms or effects of
this
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Agreement in connection with their respective decisions to execute the
same. EACH PARTY REPRESENTS AND WARRANTS THAT IT HAS HAD A FULL AND
COMPLETE OPPORTUNITY TO REVIEW THIS AGREEMENT WITH ITS COUNSEL.
EXECUTIVE ACKNOWLEDGES THAT HE HAS THE RIGHT TO CONSIDER THIS AGREEMENT
FOR TWENTY ONE (21) DAYS PRIOR TO SIGNING AND RETURNING IT TO PAUL W.
HENRY, SECRETARY AND TREASURER OF THE COMPANY, 100 SECOND AVENUE SOUTH,
SUITE 1000, ST. PETERSBURG, FLORIDA 33701. EXECUTIVE ALSO ACKNOWLEDGES
THAT HE IS AWARE OF AND HAS BEEN ADVISED OF HIS RIGHT TO REVOKE THIS
AGREEMENT FOR A PERIOD OF SEVEN (7) DAYS AFTER HE SIGNS THIS AGREEMENT
BY NOTIFYING THE ABOVE INDIVIDUAL IN WRITING BY 5 P.M. ON THE SEVENTH
(7TH) DAY AFTER HE SIGNS AND RETURNS THE AGREEMENT AND THAT HE HAS BEEN
STRONGLY ADVISED TO SEEK LEGAL COUNSEL PRIOR TO SIGNING THIS AGREEMENT.
EXECUTIVE REPRESENTS THAT, IF HE SIGNED THIS AGREEMENT PRIOR TO THE
EXPIRATION OF THE TWENTY-ONE (21) DAY PERIOD, HE HAS FREELY AND
VOLUNTARILY WAIVED HIS RIGHT TO CONSIDER THIS AGREEMENT FOR SUCH PERIOD
UPON CONSULTATION WITH HIS COUNSEL. THIS AGREEMENT WILL NOT BECOME
EFFECTIVE UNTIL THE SEVEN-DAY REVOCATION PERIOD HAS EXPIRED AND
EMPLOYER SHALL HAVE NO OBLIGATIONS UNDER THIS AGREEMENT UNTIL IT HAS
BECOME EFFECTIVE AS SET FORTH IN THIS PARAGRAPH 11.
12. APPLICABLE LAW. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Florida, without
regard for its conflicts of laws principles.
13. CHANGE, MODIFICATION AND WAIVER. No change or modification of this
Agreement shall be valid unless it is in writing and signed by
Executive and an authorized officer of Company. No waiver of any
provision of this Agreement shall be valid unless it is in writing and
signed by the party against whom the waiver is sought to be enforced
(in the case of Company, by an authorized officer of Company). The
failure of a party to insist upon strict performance of any provision
of this Agreement in any one or more instances shall not be construed
as a waiver or relinquishment of the right to insist upon strict
compliance with such provision in the future.
14. INTEGRATION. This Agreement and its exhibits constitutes the entire
agreement between Company and Executive concerning the subject matters
hereof and supercedes all prior representations, promises and
agreements, whether oral or written, implied or otherwise with respect
thereto.
15. SEVERABILITY. Any provision of this Agreement, which is adjudged to be
prohibited or unenforceable, shall be ineffective to the extent of such
prohibition or unenforceability without affecting the validity or
enforceability of the remainder of this Agreement.
16. ATTORNEYS FEES. In the event an action is brought for breach of or to
enforce this Agreement, including arbitration, the prevailing party
shall receive its reasonable attorneys and paralegal
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fees and costs at all levels of dispute resolution involved as
determined by the court or arbitrators, as the case may be.
17. DISPUTE RESOLUTION. Any dispute, claim, misunderstanding or
disagreement that arises out of or which relates to this Agreement, or
to the interpretation or breach of this Agreement, or the arbitrability
of the dispute, ("Disputed Matter") shall be resolved by arbitration.
To initiate arbitration of any Disputed Matter(s), the party seeking
arbitration shall deliver written notice of the Disputed Matter(s) to
the other party, stating the Disputed Matter(s), such party's position
on the Disputed Matter(s), and that such notice shall serve as Notice
of Submission of Disputed Matter(s) to arbitration.
Arbitration of the Disputed Matter(s) shall be submitted to a single
arbitrator, if the parties hereto agree upon one; otherwise, to a board
of three arbitrators, of whom one shall be selected by each party
within twenty (20) days after such 30 day period, and a third
arbitrator shall be selected by these two selected arbitrators. If one
of the parties fails to timely select an arbitrator, the arbitrator
that was timely selected shall be the sole arbitrator. If neither party
timely selects an arbitrator, the first arbitrator selected thereafter
shall be the sole arbitrator, no others being appointed. Where each of
the parties timely selects an arbitrator, said arbitrators will have
ten (10) days from the end of the twenty (20) day period to select the
third arbitrator. In the event the arbitrators are unable to timely
agree on the third arbitrator, either party may petition any official
of the American Arbitration Association for appointment of the third
arbitrator and the parties agree to accept any arbitrator appointed by
such official subject to the limitations hereof. Arbitration shall
commence within ten business days of the selection of the final
arbitrator and shall proceed in accordance with any private arbitration
procedures and rules of evidence specified by the rules of evidence or
procedure of commercial arbitration of the American Arbitration
Association. The arbitrators shall have all the powers permitted
arbitrators under the laws of the State of Florida. The decision and
award of such single arbitrator, if only one is used, or any two of
such board if three are used, as the case may be, shall be final and
binding upon the said parties, their heirs, legal representatives,
successors and assigns respectively, and shall have the same force and
effect as though such decision had been handed down by a court of final
jurisdiction; the cost of arbitrator(s) to be shared equally by the
parties. The non-prevailing party shall be responsible for and shall
pay for the prevailing party's reasonable expenses of presenting its
respective case, including depositions, attorney fees and costs and
witness fees. Each of the parties hereto covenants to abide by any
arbitration decision. The arbitration shall be conducted in St.
Petersburg, Florida. In the event that it becomes necessary for either
party to this agreement to enforce the terms hereof or a decision of
arbitration through the initiation of legal proceedings, the prevailing
party in said proceedings shall be entitled to collect all costs and a
reasonable attorneys' fee from the non-prevailing party, both as to the
initial lawsuit and any appellate proceedings.
Arbitrators must be independent of the parties and their
principals. Persons who are hereby expressly disqualified to serve as
arbitrators are principals of parties, relatives of said principals,
executives of parties or said principals, persons not residing within
100 miles of St. Petersburg, Florida, attorneys, accountants and other
business persons having professional
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or business relationships with the parties or said principals. The
parties shall deposit, at the beginning of the arbitration process,
with the arbitrators an amount equal to the estimated costs (including
arbitrators' time charges) of the total arbitration. Failure to make
full deposit of one half of the estimated costs by the deadline imposed
by the Arbitrator(s) shall result in a default judgment being awarded
by the Arbitrator(s) to the party who did make a timely deposit of the
full one half of the estimated costs. Arbitrators time charges shall be
at the same rate for all arbitrators.
18. INDEMNIFICATION. The indemnification(s) of Executive from Company that
Executive enjoyed by and through his Executive Employment Agreement,
the Articles of Incorporation of the Company, the Bylaws of Company,
the Florida Business Corporation Act and/or any other written
instrument executed and delivered by Company prior to September 1,
2000, to wit, the indemnification(s) described in Exhibit D hereto,
shall not be abridged by the execution and delivery of this Agreement
or the termination of the Executive Employment Agreement or Executive's
employment with Company under this Agreement and the same shall survive
the execution and delivery of this Agreement, the termination of the
Executive Employment Agreement, and termination of Executive's
employment with Company under this Agreement.
19. COUNTERPARTS AND FACSIMILE SIGNATURES. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be
deemed an original, but all of which taken together shall constitute
one and the same instrument. Execution and delivery of this Agreement
by exchange of facsimile copies bearing the facsimile signature of a
party hereto shall constitute a valid and binding execution and
delivery of this Agreement by such party. Such facsimile copies shall
constitute enforceable original documents.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, and intending to be legally bound hereby, the
Parties have agreed to and executed the foregoing Separation Agreement,
effective as of the last date written below.
EXECUTIVE:
/s/ Robert P. Gordon November 22, 2000
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Robert P. Gordon Date
COMPANY:
TELESERVICES INTERNET GROUP INC.
By: /s/ Paul W. Henry
-------------------
Its: Secretary/Director November 22, 2000
------------------ -----------------
Date
PERCH:
PERCH, INC.
By: /s/ John H. Talbott
---------------------------
Its: Vice President, Operations November 22, 2000
-------------------------- -----------------
Date
Joined in for the sole purpose of consenting to the forgiveness of Executive's
indebtedness and assignment of the promissory notes as provided in paragraph 2d
above and Exhibit B hereto, and subject to the terms and conditions of this
Agreement.
GENERALSEARCH.COM, INC.
By: /s/ Jeffrey C. Bruss November 22, 2000
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