SEPARATION
AGREEMENT
THIS
SEPARATION AGREEMENT between YP Corp., a Nevada corporation (the "Company")
and
Peter J. Bergmann ("Bergmann"),
is
entered into and effective November 3, 2005 (the "Effective Date").
Background
Bergmann
and the Company previously entered into an Employment Agreement, dated June
6,
2004 ("Employment
Agreement")
that
specifies the terms and conditions of Bergmann's service as Chairman, President
and Chief Executive Officer of the Company and Bergmann's compensation and
benefits.
Company
previously granted or issued Bergmann an aggregate of 1 ,350,000 shares of
the
Company's common stock, $.001 par value per share ("Common
Stock"),
in
consideration of Bergmann's service as an officer and director of the Company
(the "Original
Stock").
50,000, shares of the Original Stock were granted to Bergmann in 2002 and are
fully vested ("2002
Shares");
1,000,000 shares of the Original Stock ("2004
Shares'')
were
granted to Bergmann pursuant to a Restricted Stock Agreement dated as of June
6,
2004 ("Restricted
Stock Agreement");
and
100,000 shares of the Original Stock were granted to Bergmann in April 2005
("2005
Shares")
and
were subject to contractual transfer restrictions similar to the 2004
Shares.
In
consideration of the payments and covenants set forth in this Agreement, the
Company and Bergmann desire to enter into this Agreement to provide for their
mutual separation and settlement.
Agreement
NOW
THEREFORE IT IS MUTUALLY AGREED AS FOLLOWS;
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1.
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Resignation
and Termination: Waivers.
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a. Resignation
and Termination.
Bergmann has resigned as Chairman and President of the Company and from any
and
all positions that he may be deemed to have held with any of the Company's
subsidiaries. The Employment Agreement has been terminated and superseded by
this Agreement and, therefore, is no longer in force or effect. Bergmann will
continue to serve as a director until the Company's next annual shareholder's
meeting and will also continue to serve as Chief Executive Officer in accordance
with and subject to the restrictions and until the date set forth in and
Section
5(f).
b. Waiver
of Severance.
Bergmann waives for himself and any of his affiliates, representatives,
creditors or family members any right to severance benefits under the Employment
Agreement in connection with the termination of the Employment Agreement and/or
resignation of any positions held with the Company or its
subsidiaries.
c. Waiver
of Reinstatement.
Company
is under no obligation to reinstate, renegotiate or re-execute the Employment
Agreement or the terms thereof or reinstate or employ Bergmann. Bergmann waives
any rights to recall or reinstatement of any past or future wages, bonuses,
or
compensation not specifically provided in this Agreement
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2.
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Separation
Payment; Health Insurance Coverage; Assumption of Lease.
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a. Payments.
In
complete and full satisfaction and in lieu of all claims for compensation,
benefits, severance or related payments from Company or any and all of its
affiliates, subsidiaries, corporate parents, agents, officers, shareholders,
employees, attorneys, successors, and assigns (collectively "Released
Parties"),
and
as compensation for the covenants and services specified in this Agreement,
Company will (i) continue to pay Bergmann the monthly salary he was receiving
immediately prior to this Agreement through the last day of the Retention Period
(as defined in Section 5(f)) ("Continuing
Payments")
and
(ii) pay to Bergmann the equivalent of 18 months of his current salary in one
payment of $337,500 (the "Separation
Payment")
on or
before January 2, 2006. All applicable withholdings, including taxes, shall
be
deducted from the Continuing Payments and Separation Payment
b. Health
Insurance Coverage.
The
Company will pay Bergmann's COBRA health payment ("Insurance
Coverage")
for
the shorter of (i) 12 months following the Effective Date or (ii) until Bergmann
is eligible for health coverage under another employer. Upon being eligible
for
alternative health care coverage, Bergmann will submit to the Company a written
confirmation of his eligibility for health coverage from an alternative employer
or source.
c. Satisfaction
of All Obligations.
The
Continuing Payments, Separation Payment and Insurance Coverage, together with
payment of his accrued but unused vacation pay and payment of as yet
unreimbursed business expenses ("Total
Compensation"),
will
comprise the aggregate and final amount owed to Bergmann and all of his
affiliates, representatives, creditors and family members. As of the Effective
Date, no additional compensation, consideration, payments or benefits
(including, without limitation, health or dental benefits, vacation, sick leave,
insurance or any related or similar benefits) are or will be owed to Bergmann
or
any of his affiliates, representatives, creditors or family members.
Notwithstanding the foregoing, the Company may at any time during the Payment
Period (as defined in Section
5(f)
below)
request that Bergmann re-execute this Agreement and reaffirm the perpetuity
of
the Release set forth in Section
4(a)
and,
furthermore, the Company may condition any unpaid component of the Total
Compensation upon Bergmann's compliance with such request, provided the Company
is not itself in default or is engaged in any conduct after the date above
that
gives rise to any claim by Bergmann. Bergmann's failure to comply with a
re-execution request will permit the Company to withhold any scheduled component
of the Total Compensation without penalty, default or interest until such
request is complied with.
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3.
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Forfeiture
of Restricted Stock and Termination of Restricted Stock
Agreement.
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a. Forfeiture
and Termination.
Bergmann hereby forfeits to the Company, without any additional consideration,
compensation or payment, alt shares of Original Stock beneficially owned by
Bergmann or any affiliated party ("Forfeited
Shares"),
except for all of the 2002 Shares, 600,000 shares of the 2004 Shares and all
of
the 2005 Shares (collectively, the "Retained
Shares").
The
Restricted Stock Agreement and any written Agreement associated with the
Retained Shares are hereby terminated and superseded by this
Agreement.
b. Continuing
Limitation on Transfer.
Bergmann agrees not to sell, transfer, pledge, exchange, hypothecate, or
otherwise dispose of any Retained Shares (excluding the 2002 Shares)
("Transfer")
before
the date on which the restrictions on the Retained Shares (excluding the 2002
Shares) lapse in accordance with the vesting schedule set forth in Section
3(c)
below.
Any attempted disposition of the Retained Shares (excluding the 2002 Shares)
in
violation of the preceding sentence will be null and void, and the Company
will
not recognize or give effect to such transfer on its books and records or
recognize the person or persons to who such proposed transfer has been made
as
the legal or beneficial owner of the Retained Shares. In the event that a
Transfer is approved by the Company, Bergmann must, prior to consummating or
affecting a Transfer, first obtain the written agreement of the transferee
to be
bound by the terms of this Agreement as if such transferee were deemed the
original "grantee" of the Retained Shares.
c. Lapse
of Restrictions.
The
restrictions on the Retained Shares (excluding the 2002 Shares) set forth in
Section
3(b)
will
lapse in accordance with the following schedule, subject to and as adjusted
for,
in the case of closing prices of the Company's common stock, stock splits,
reverse stock splits, combinations, rectifications and the like;
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Date
Restriction Lapses*
(earlier
to occur of the following)
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Percentage
of Stock Becomes
Unrestricted*
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18
Months from the Effective Date
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100%
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Change
of Control (as defined in the Company's 2003 Stock Plan)
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100%
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Date
that Company's common stock as listed on the Over-the-counter Bulletin
Board, Nasdaq, the American Stock Exchange, The New York Stock Exchange,
or a similar exchange or quotation system ("Exchange") reaches an
average
closing price of $4 for three consecutive trading days
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20%
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Date
that Company's common stock as listed on an Exchange reaches an average
closing price of $5 for three consecutive trading days
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40%
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Date
that Company's common stock as listed on an Exchange reaches an average
closing price of $6 for three consecutive trading days
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60%
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Date
that Company's common stock as listed on an Exchange reaches an average
closing price of $7 for three consecutive trading days
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80%
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Date
that Company's common stock as listed on an Exchange reaches an average
closing price of $8 for three consecutive trading days
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100%
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*Notwithstanding
the provisions above, in the event Bergmann materially breaches the provisions
set forth in Section
5(l)
the
Restricted Shares will no longer be eligible for vesting and Bergmann must
return the Restricted Shares to the Company without payment or any amount due
for such Restricted Shares.
a. Bergmann
Release.
Bergmann agrees to release, discharge, cancel, waive and acquit, for Bergmann
and his affiliates, including, without limitation, for Bergmann's marital
community, heirs, executors, administrators, and assigns, the Released Parties
from any and all rights, claims, demands, causes of action, obligations,
damages, penalties, fees, costs, expenses, and liabilities of any nature
whatsoever, whether in law or equity, that Bergmann or his affiliates currently
have, have had or may hereafter have against the Company or the Released Parties
arising out of, or by reason of any cause, matter, or thing whatsoever existing
as of the date of execution of this Agreement, WHETHER KNOWN TO THE PARTIES
AT
THE TIME OF EXECUTION OF THIS AGREEMENT OR NOT, except for any claim that
Bergmann may have under the Indemnification Agreement between the parties dated
June 6, 2004 ("Indemnification
Agreement"),
which
Indemnification Agreement shall survive the termination of this Agreement.
THIS
FULL RELEASE OF ALL CLAIMS includes, without limitation, any claims, demands,
or
causes of action arising out of or under, or relating in any manner whatsoever
to the Employment Agreement and/or termination thereof or of any asserted
employment of Bergmann with the Company, Title VII of the Civil Rights Act
of
1964 and the Civil Rights Act of 1991, as amended, the Fair Labor Standards
Act,
the Family Medical Leave Act, the Arizona Employment Protection Act, Arizona's
Wage Payment statute, or any other applicable state or federal statute, or
any
common law cause of action, including claims for breach of any express or
implied contract, wrongful discharge, tort, personal injury, or any claims
for
attorney's fees or other costs, as well as any claims that related to other
agreements or arrangements, whether written or oral, between the Company and
Bergmann, except for any claim that Bergmann may have under the Indemnification
Agreement, nor caused to be instituted on his behalf or any of his affiliate's
behalf, any legal proceeding, including filing any claims or complaint with
any
government agency alleging any violation of law or public policy against the
Company or the Company's affiliates, attorneys or agents premised upon any
legal
theory or claim whatsoever, including without limitation, contract, tort,
wrongful discharge, and breach of contract.
b. The
Company Release.
The
Company and the Released Parties agree to release, discharge, cancel, waive
and
acquit Bergmann and his affiliates from any and all rights, claims, demands,
causes of action, obligations, damages, penalties, fees, costs, expenses, and
liabilities of any nature whatsoever, whether in law or equity, that the Company
or the Released Parties currently have, have had or may hereafter have against
Bergmann and his affiliates arising out of, or by reason of any cause, matter,
or thing whatsoever existing as of the date of execution of this Agreement,
WHETHER KNOWN TO THE PARTIES AT THE TIME OF EXECUTION OF THIS AGREEMENT OR
NOT.
THIS FULL RELEASE OF ALL CLAIMS includes, without limitation, attorney's fees,
and any claims, demands, or causes of action arising out of, or relating in
any
manner whatsoever to, the Employment Agreement, as well as any claims that
related to other agreements or arrangements, whether written or oral, between
the Company and Bergmann, The Company further covenants and agrees that it
has
not instituted, or caused to be instituted on the Company's behalf, any legal
proceeding, including filing any claims or complaint with any government agency
alleging any violation of law or public policy against Bergmann and his
affiliates premised upon any legal theory or claim whatsoever, including without
limitation, contract, tort, wrongful discharge, and breach of
contract.
5. Covenants.
Bergmann agrees to comply with or satisfy each of the following covenants and
obligations (the "Covenants").
a. Assumption
of Automobile Lease and Home Lease.
Bergmann assumes the lease of the BMW X5 currently acquired by the Company
for
Bergmann and is responsible for all payment and related obligations thereunder.
If not already accomplished, Bergmann will also immediately notify the landlord
of his current place of residence in writing (a copy of which will be provided
to the Company) of his relocation and the Company's intent to terminate the
lease.
b. Retention
of Personal Effects.
Bergmann will retain ownership over and be entitled to keep all of his personal
effects, including without limitation, certain artwork and replacement
computers.
c. No
Re-election.
Bergmann will not authorize, cause, or consent to his nomination or his name
appearing on any ballot or proxy card of the Company with respect to his
election or appointment as a director of the Company.
d. Certification
and Signing of Annual Report.
Provided that such certifications and Annual Report are complete and accurate,
Bergmann will review, sign and provide all required certifications as the
Principal Executive Officer to the Company's Annual Report on Form 10-K for
the
fiscal year ended September 30,2005 expected to be filed with the Securities
and
Exchange Commission in December 2005 (the "Annual
Report Certification").
Bergmann will have the opportunity to provide input on the Annual Report and
make appropriate inquiries to ensure its completeness and accuracy.
e. Certification
and Signing of Amended Annual Reports.
Provided that such certifications and amendments are complete and accurate,
Bergmann will review, sign and provide all required certifications as the
Principal Executive Officer with respect to the amendments to the Company's
six
Annual Reports on Form 10-KSB for the fiscal years ended September 30, 1999
through September 30, 2004 when prepared (the "Amendment
Certifications").
Bergmann will have the opportunity to provide input on the amendments and make
appropriate inquiries to ensure their completeness and accuracy.
f. Transition.
Consultation and Cooperation.
From
the Effective Date and until the later of the Annual Report Certification or
the
Amendments Certification (and all associated filings with the Securities and
Exchange Commission related thereto), Bergmann will continue to serve as Chief
Executive Officer of the Company (the "Retention
Period").
On
the last day of the Retention Period and contemporaneous with the final
associated filing with the Securities and Exchange Commission, Bergmann will
no
longer serve as Chief Executive Officer and will be deemed to have immediately
resigned such position. Additionally, on the last day of the Retention Period,
Bergmann will deliver to the Company a written resignation letter to mat effect.
Notwithstanding (but in no way limiting) the foregoing, during the period from
the Effective Date and ending January 2, 2006 (''Payment
Period"),
and
without any additional consideration, compensation or payments, Bergmann will
use reasonable efforts to comply with all reasonable requests made by Company
to
facilitate an orderly and successful transition of the duties and services
previously fulfilled and provided by Bergmann. During the Payment Period, upon
reasonable notice and subject to his prior professional commitments, Bergmann
will make himself available telephonically and will cooperate with Company
in
good faith to meet the objectives of such inquiry or request ("Consultation
Obligation"),
Bergmann will use his reasonable efforts to ensure that any services provided
to
Company pursuant to this Agreement will be performed in a professional and
workmanlike manner, in good faith and without a view toward or with an intention
to impair or undermine the purposes of this Agreement. Bergmann acknowledge
that, except as provided herein, he no longer has any authority to execute
contracts, agreements, documents or instruments, or negotiate on behalf of
Company or otherwise to bind Company, unless expressly authorized by Company's
Board of Directors. Except as provided herein, for all purposes of this
Agreement, between the end of the Retention Period and the end of the Payment
Period, Bergmann will be and act as an independent contractor and not as
partner, joint venturer, or agent, and will not bind nor attempt to bind the
Company to any contract or obligation. As an independent contractor, Bergmann
is
solely responsible for all taxes, withholdings, and other statutory or
contractual obligations of any sort except as provided herein.
g. Confidentiality
and Non-Disclosure.
Bergmann and Company recognizes and acknowledges that Company's trade secrets,
proprietary information and know-how (including, without limitation, any
information, materials, records, financial statements or books provided to
or
created by Bergmann during the term of the Employment Agreement), as they may
exist from time to time ("Confidential
Information"),
to
which he has had and may continue to have access to and knowledge of, are
valuable, special and unique assets of Company's business. Neither Bergmann
nor
his affiliates will, during or after the term of this Agreement, in whole or
in
part, disclose such Confidential Information to any party for any reason or
purpose whatsoever, nor will he or any of his affiliates make use of any such
Confidential Information for their own purposes or for the benefit of any
third-party under any circumstances during or after the term of this Agreement,
provided that these restrictions will not apply to such Confidential Information
which is in the public domain (provided that neither Bergmann nor his affiliates
was responsible, directly or indirectly, for such dissemination into the public
domain). Bergmann will use his best efforts to cause all persons or entities
to
which any Confidential Information will be disclosed by either of them hereunder
to observe the terms and conditions set forth herein as though each such person
or entity was bound hereby.
h. Return
of Company Property and Information.
Bergmann shall immediately deliver to the Company any Company records,
documents, notes, manuals, lists, and other tangible items (whether in original
or duplicate form) in Bergmann's possession or control. Bergmann represents
and
warrants that he has not taken nor retained any Company property.
i. Public
or Private Statements.
Bergmann and the Company will each refrain from making any public or private
statements or comments, disparaging or otherwise, whether orally, in writing,
or
transmitted electronically (including e-mail or postings on Internet chat
boards), concerning or in any way related to the other, its business, its
prospects, its services, its current or former officers, directors or
consultants, or the Internet or online Yellow Pages industry that may, directly
or indirectly, have a material adverse effect upon the other's business,
prospects or goodwill or its reputation or that of its employees, officers,
or
directors.
j. Communication
with Certain Parties.
Unless
specifically authorized, Bergmann will refrain from communicating, either
orally, in writing, or via electronic transmission, with any shareholder of
Company (individual, institutional, or otherwise) or any parties with which
the
Company has a contractual or business relationship, including, without
limitation, any employee, customer, or shareholder, with respect to matters
concerning the Company's business, client base or prospects or about Bergmann's
departure and separation from Company; provided, however, that he may, subject
to the other provisions of this Agreement, and notice to the Company,
communicate with executive officers, directors, employees, customers, vendors,
partners and shareholders of the Company as necessary to reasonably and properly
satisfy his obligations under this Agreement.
k. Bad
Faith Acts.
Bergmann and Company will refrain from, directly or indirectly, engaging in
any
act or omission that is in bad faith and to the material detriment of the other
patty or its business, prospects or goodwill.
1. Non-Competition.
Neither
Bergmann nor any of his affiliates will, directly or indirectly, either
individually or hi connection with another entity or any third-party, compete
with the Company or participate in the development of a product or the provision
of services that reasonably could be deemed to be competitive with any of the
Company's products, services, concepts or lines of business, for a period of
18
months from the Effective Date. The Company's business, products, services
or
lines of business are specifically defined as the creation and production of
an
online business directory similar to the printed Yellow Pages. This provision
will only apply to entities that derive more than 10% of their revenues from
competitive business activities. The amount allocated as compensation to this
non-compete are of equal value over the life of the non-compete, notwithstanding
any prepayments. If however, the Company pays for and obtains an outside
valuation expert that opines for different valuations for the non-compete than
the parties herein expressly agree to accept those valuations will
control,
(i) Non-Solicitation
of Customers.
Neither
Bergmann nor any of his affiliates, whether personally or as an agent, employee,
consultant, or in any other capacity on behalf of any person or entity, will,
for a period of 18 months form the Effective Date, directly or indirectly
solicit, do business with, call upon, handle, deliver products or render
services to any active or prospective Customer (as defined below) of the
Company, for the purpose of soliciting or selling such Customer the same as,
similar to, or related products or services that the Company provides, as
defined above. For purposes of this paragraph, "Customer" shall mean the
corporate customer itself, the representatives of the corporate customer, and
any affiliated entity of the corporate customer.
(ii) Non-Solicitation
of Employees and Independent Contractors.
For a
period of 18 months from the Effective Date, neither Bergmann nor any of his
affiliates will, either alone or as an agent, employee, partner, representative,
affiliate, or in any other capacity on behalf of any person or entity, directly
or indirectly, go into business with or hire any Company employee or independent
contractor that provided services to the Company or solicit, induce, or recruit
any Company employee or independent contractor that provided services to the
Company to end its relationship with Company for the purpose of having such
Company employee or independent contractor engage in services that are the
same
as, similar to or related to the services that such Company employee or
independent contractor provided for Company.
n. Reasonableness
of Restrictions and Provision for Reduction.
Bergmann expressly acknowledges and agrees that the time and scope limitations
contained above in subparagraphs 1 and m of this Section
5
are
entirely reasonable and are properly and necessarily required for the adequate
protection of the business and intellectual property of Company. If a court
of
competent jurisdiction determines that 18 months is unreasonable or
unenforceable, then the period will be 12 months. If a court of competent
jurisdiction determines that 12 months is unreasonable or unenforceable, then
the period will be 9 months. If a court of competent jurisdiction determines
that 9 months is unreasonable or unenforceable, then the period will be 6
months.
o. Further
Assurances and Cooperation.
Bergmann will use his reasonable efforts to cooperate with the Company and
with
Company's representatives, officers, directors and agents in connection with
any
steps required to be taken as part of their respective obligations under this
Agreement, and will (a) upon request, furnish to Company such further
information; (b) execute and deliver to Company such other documents; and (c)
do
such other acts and things, all as Company may reasonably request for the
purpose of carrying out the intent of this Agreement, including, without
limitation, the re-execution of this Agreement, to the fullest extent permitted
by law and subject to the provisions of this Agreement.
6. Representations
and Warranties.
Bergmann, acknowledging that the Company is relying upon the truth and accuracy
of such representations and warranties, represents and warrants to the Company
as follows:
a. Review
of Agreement.
He has
been given the opportunity and has in feet read this entire Agreement, it is
in
plain language, and he has had all questions regarding its meaning answered
to
his satisfaction.
b. Independent
Advice.
He has
been given the full opportunity to obtain the independent advice and counsel
from an attorney of his own choosing and has in fact done so.
c. Understanding
of Terms.
He
fully understands the terms, contents and effects of this
Agreement.
d. Voluntary
Act.
He is
entering into this Agreement knowingly and voluntarily in exchange for the
consideration in this Agreement and mat no other representations have been
made
to him to induce or influence his execution of this Agreement.
7. Termination.
Upon
the material breach of this Agreement, including, without limitation, the
Consulting Obligation or a Covenant by Bergmann or upon the material breach
of
any representation or warranty, and in each case (other than a breach of a
representation or warranty) after written notice by the non-breaching party
and
a 30-day opportunity to cure (5-day Opportunity to cure in the case of payment
to Bergmann hereunder), the other may proceed to arbitration under Section
8
below.
8. Arbitration.
The
parties agree to arbitrate any and all disputes of any kind or nature (whether
in contract, tort or otherwise, or relating to any statute or other law and
whether involving direct, consequential, punitive, statutory or other damages
of
any kind) under, in relation to, or in connection with this Agreement or any
actions or omissions by any party under, in relation to or in connection with
the transition relationship contemplated by this Agreement. It is me express
intent of this provision that every aspect of the parties' dispute or
controversy be subject to final and binding arbitration. Arbitration shall
take
place in Los Angeles, CA and shall be conducted under the commercial arbitration
rules (or other similar and applicable rules) of the American Arbitration
Association. The parties shall act in good faith to select a single arbitrator
or three arbitrators if any party so chooses (with each party selecting one
arbitrator who will jointly select the third); provided, that if the parties
do
not agree on an arbitrator(s), then the American Arbitration Association shall
select the arbitrators). The decision of the arbitrator shall be final and
binding, and not subject to appeal for any reason. The parties agree that the
arbitrator shall award attorneys fees, costs, and ail costs and fees of the
American Arbitration Association to the prevailing party in the arbitration.
The
arbitration award or other orders can be confirmed and/or enforced through
the
Los Angeles County Superior Court. The arbitrator's fees and any administrative
fees shall be divided equally between the parties. This provision does not
affect the Company's ability to seek injunctive relief with the appropriate
state or federal court in order to prevent any threatened or actual breach
of
the Covenants by Bergmann.
9. Governing
Law.
The
interpretation, performance and enforcement of this Agreement will be governed
by the internal laws of the State of Arizona without giving effect to any choice
of law or rule that would cause the application of the laws of any jurisdiction
other than the internal laws of the State of Arizona to the rights and duties
of
the parties.
10. Severability.
If any
provision of this Agreement or the application thereof is held to be invalid,
void or unenforceable for any reason, the remaining provisions not so declared
will be construed so as to comply with the law, and will nevertheless continue
in full force and effect without being impaired in any manner
whatsoever.
11. Headings.
The
headings in this Agreement are for reference only and will not affect the
interpretation of this Agreement
12. Notices.
All
notices, demands, or other communications that are required or are permitted
to
be given under this Agreement must be in writing and are sufficient upon
personal delivery, facsimile, or on the third business day following due deposit
in the United States Mail, postage prepaid, and sent certified mail, return
receipt requested, correctly addressed to the addresses of the parties as
follows:
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If
to Bergmann:
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Peter
J. Bergmann
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4840
East Jasmine Street, Suite 105
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13. Attorney's
Fees.
In the
event of any litigation or any other legal proceeding, including arbitration,
relating to this Agreement, including without limitation, any action to
interpret or enforce this Agreement, the prevailing party will be entitled
to
reasonable attorneys' fees and costs of suit or arbitration.
14. Intent
to be Binding.
This
Agreement may be executed in any number of counterparts and by facsimile, and
each counterpart and/or facsimile constitutes an original instrument, but all
such separate counterparts and/or facsimiles constitute one and the same
agreement. Neither party to this Agreement will seek to have any term,
provision, covenant, or restriction of this Agreement to be held invalid. This
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the successors and assigns of Company, any person or entity which purchases
substantially all of the assets of Company or with whom Company merges, and
any
subsidiary, affiliate, corporation, or operating division of the previously
described entities.
15. Entire
Agreement.
This
Agreement supersedes all prior agreements, whether written or oral, between
the
parties with respect to its subject matter (including, without limitation,
the
Employment Agreement and the Restricted Stock Agreement, any letter of intent,
heads of agreement, conceptual agreement, or e-mail communication), except
for
the Indemnification Agreement which shall remain in fill force and effect,
and
constitutes a complete and exclusive statement of the terms of the agreement
between the parties with respect to its subject matter. This Agreement may
not
be amended, supplemented, or otherwise modified except by a written agreement
executed by the patty to be charged with the amendment
16. Injunctive
Relief Damages and Forfeiture.
Due to
the nature of Bergmann's prior position with the Company, and with full
realization mat a violation of the Covenants set forth in Section
5
of this
Agreement will cause the Company immediate and irreparable injury and damage,
which is not readily measurable and to protect the Company's interests, Bergmann
understands and agrees that, in addition to instituting legal proceedings to
recover damages resulting from a breach of this Agreement, the Company may
seek
to enforce Section
5
of this
Agreement with an action for injunctive relief to cease or prevent any actual
or
threatened violation of this Agreement by Bergmann.
17. No
Admission Clause.
Neither
the consideration furnished pursuant to this Agreement, nor this Agreement
is an
admission of any violation of rights, or termination or breach of the Employment
Agreement by the Company or any affiliate or agent of the Company. The Company
denies any violation of rights Or termination or breach of the Employment
Agreement and denies any liability to Bergmann.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, The Parties signed this Agreement as of the Effective Date.
CAUTION!
THIS IS A RELEASE! READ BEFORE SIGNING!
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YP
CORP., a Nevada corporation
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/s/
W. Chris Broquist
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By:
W. Chris Broquist
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Its:
CFO
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/s/
W. Chris Broquist
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W.
Chris Broquist
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Re-Execution:
By
signing below, 1 reaffirm the terms and conditions of this Separation Agreement
and specifically acknowledge the release of claims set forth in Section
4(a).
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Re-Execution
Date:
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3
Nov. 2005
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/s/
Peter J. Bergmann
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Peter
J. Bergmann
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[SIGNATURE
PAGE TO SEPARATION AGREEMENT)
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