Unassociated Document


    SEPARATION
      AGREEMENT & MUTUAL RELEASE

     

    THIS
      SEPARATION AGREEMENT AND MUTUAL RELEASE (this “Agreement”) is made as of June 4,
      2008 (the “Effective Date”) by and between GoFish Corporation (the “Company”), a
      Nevada corporation maintaining its principal offices at 706 Mission St.,
      10th
      Floor,
      San Francisco, CA 94103, and Michael Downing an individual residing at 2299
      Pacific #51, San Francisco, CA (“Mr. Downing,” and, collectively with Company,
      the “Parties,” and each a “Party”).

     

    WHEREAS,
      Mr. Downing is currently employed by the Company as its Chief Executive Officer
      pursuant to an Employment Agreement, dated as of October 27, 2006 (the
“Employment Agreement”), and serves on the Company’s Board of Directors (the
“Board”); 

     

    WHEREAS,
      Mr. Downing was previously granted an option (the “2006 Option”) to purchase
      500,000 shares of common stock of the Company under the Company’s 2006 Equity
      Incentive Plan pursuant to a Stock Option Award Agreement dated October 27,
      2006
      (the “Option Agreement”); 

     

    WHEREAS,
      Mr. Downing has debt outstanding to the Company in the amount of $17,876.05
      (the
“Debt”); 

     

    WHEREAS,
      Mr. Downing had previously entered into a Lock-up Agreement with Tompkins
      Capital Group (“Tompkins Capital”), dated October 27, 2006 (the “Lock-up
      Agreement”), under which the Company has certain rights; and

     

    WHEREAS,
      the Company and Mr. Downing have mutually agreed to terminate the existing
      employment relationship and his service on the Board, to enter into a consulting
      relationship and to provide for certain other matters. 

     

    NOW,
      THEREFORE, in consideration of the mutual promises made herein, the Company
      and
      Mr. Downing hereby agree as follows: 

     

    1. Cessation
      of Employment and Board Service.
      Mr.
      Downing and the Company acknowledge and agree that Mr. Downing shall resign
      as
      Chief Executive Officer of the Company and as a member of the Board effective
      as
      of the date on which the Company hires a new Chief Executive Officer (the
“Separation Date”). As of the Separation Date, Mr. Downing will no longer hold
      any positions as an employee with the Company or on the Board. The Employment
      Agreement will be terminated as of the Separation Date and will no longer have
      any force or effect, except as specifically referenced in this
      Agreement.

     

    2. Accrued
      Salary and Vacation; Expense Reimbursement.
      The
      Company agrees that it will pay Mr. Downing all accrued salary, and all accrued
      and unused vacation benefits earned through the Separation Date, if any, subject
      to standard payroll deductions, withholding taxes and other obligations. Mr.
      Downing understands that he is entitled to this payment regardless of whether
      or
      not he signs this Agreement. Mr. Downing agrees that he has submitted his final
      documented expense reimbursement statement reflecting all business expenses
      he
      incurred prior to and including the Separation Date, and acknowledges receipt
      of
      the full amount of reimbursement therefor.

     

    3. Forgiveness
      of Debt.
      The
      Company agrees to forgive and waive the Debt as of the Separation Date.


     

    4. Lock-up
      Agreement and Restrictions on Transfer.
      

     

    4.1. The
      Company and Mr. Downing hereby agree to terminate the Lock-up Agreement and
      the
      Company waives the restrictions on transfer set forth therein. The Company
      will
      use reasonable efforts to obtain Tompkins Capital’s agreement to terminate the
      Lock-up Agreement, as provided in the Lock-up Agreement. 

     

    
      
        
        

      

      
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    4.2. For
      two
      years from the Effective Date, Mr. Downing will not sell any shares of the
      Company’s stock during any 30 calendar day period that would exceed twenty-five
      percent (25%) of the aggregate volume of the Company’s stock that was sold in
      the preceding 25 trading days.

     

    4.3. Upon
      completion of the 90-day period provided in Rule 144, the Company will issue
      a
      legal opinion to its transfer agent requesting the removal of the restrictive
      legends on Mr. Downing’s shares.

     

    5. Stock
      Options.
      Mr.
      Downing and the Company agree that the 2006 Option shall be cancelled effective
      as of the Separation Date with respect to all shares of common stock of the
      Company subject to the 2006 Option and the Option Agreement shall be of no
      further force and effect.

     

    6. Consulting
      Services.
      In
      consideration for the release of claims set forth below and other promises
      and
      covenants set forth herein, the Company will enter into a consulting agreement
      with Mr. Downing (or his affiliate) for the period of one year (the "Consulting
      Period"). Mr. Downing will receive compensation under the consulting agreement
      in the amount of one hundred twenty thousand dollars per year ($120,000),
      payable monthly. In addition, as compensation for his services as a consultant,
      Mr. Downing will receive an option to purchase three hundred thousand (300,000)
      shares of common stock of the Company with an exercise price equal to the
      closing price of Company’s common stock on the OTC Bulletin Board on the grant
      date thereof.

     

    7. Benefits.
      Mr.
      Downing will be offered benefits to which he is entitled under the Consolidated
      Omnibus Budget Reconciliation Act of 1985 (“COBRA”), and Mr. Downing retains all
      benefits under Company’s 401(k) Plan. If Mr. Downing timely elects COBRA
      benefits, Company will pay all of Mr. Downing’s COBRA benefits, directly to the
      COBRA administrator, for a period of twelve months, so that Mr. Downing is
      fully
      covered.

     

    8. No
      Other Entitlement.
      Mr.
      Downing confirms that no other monies are due to him from Company relating
      to
      his service as an employee. Mr. Downing acknowledges that he has no entitlement
      to enter into the consulting agreement and receive the consideration set forth
      in Sections 3, 5, 6 and 7 above, other than in consideration of his general
      release of all claims against Company. 

     

    9. Company
      Property.
      Mr.
      Downing shall promptly return all Company property in his possession or control,
      except for Mr. Downing’s Company-provided notebook computer, which Mr. Downing
      will be allowed to retain.

     

    10. Confidential
      Information; Non-Disparagement.
      Mr.
      Downing recognizes and acknowledges that the performance of his services for
      Company has resulted in its disclosure to him of certain proprietary and
      confidential and financial information. Mr. Downing agrees that: 

     

    10.1. 
      he will
      not disclose or use any of Company’s confidential, proprietary or financial
      information for his own or any other person’s or entity’s benefit unless such
      use or disclosure is specifically consented to in writing by
      Company.

     

    10.2. he
      will
      not, directly or indirectly, for himself or on behalf of any other person or
      entity, induce or attempt to induce any of Company’s personnel to do anything
      contrary to the best interests of Company.

     

    10.3. he
      will
      not make any disparaging remarks, or otherwise take any action that could
      reasonably be anticipated to cause material damage to the reputation, goodwill
      or business of Company or any employees of Company, or otherwise make remarks
      that may reflect negatively upon Company or any of its Mr. Downings in any
      context or setting.

     

    
      
        
        

      

      
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    11. Mutual
      Release of Claims.
      In
      consideration for the obligations of both parties set forth in this Agreement,
      Mr. Downing and Company, on behalf of themselves, and their respective heirs,
      executors, officers, directors, employees, stockholders, administrators,
      successor corporations and assigns, hereby fully and forever release each other
      and their respective heirs, executors, officers, directors, employees,
      stockholders, administrators, successor corporations and assigns, of and from
      any claim, duty, obligation or cause of action relating to any matters of any
      kind, whether presently known or unknown, suspected or unsuspected, that any
      of
      them may possess arising from any omissions, acts or facts that have occurred
      up
      until and including the date of this Agreement including, without limitation:
      

     

    11.1. any
      and
      all claims relating to or arising from the Employment Agreement and Mr.
      Downing’s employment relationship with Company and the termination of that
      relationship;

     

    11.2. any
      and
      all claims for wrongful discharge of employment; breach of contract, both
      express and implied; breach of a covenant of good faith and fair dealing, both
      express and implied, negligent or intentional infliction of emotional distress;
      negligent or intentional misrepresentation; negligent or intentional
      interference with contract or prospective economic advantage; negligence; and
      defamation;

     

    11.3. any
      and
      all claims for violation of any federal, state or municipal statute, including,
      but not limited to, Title VII of the Civil Rights Act of 1964, the Civil Rights
      Act of 1991, the Americans with Disabilities Act of 1990, the
      Fair
      Labor Standards Act; the Fair Credit Reporting Act; the Age Discrimination
      in
      Employment Act of 1967; the Older Workers Benefit Protection Act; the Mr.
      Downing Retirement Income Security Act of 1974; the Worker Adjustment and
      Retraining Notification Act; the Family and Medical Leave Act; the
      Sarbanes-Oxley Act of 2002; the California Family Rights Act; the California
      Labor Code, except as prohibited by law; the California Workers’ Compensation
      Act, except as prohibited by law; and the California Fair Employment and Housing
      Act;

     

    11.4. any
      and
      all claims arising out of any other laws and regulations relating to employment
      or employment discrimination; and

     

    11.5. any
      and
      all claims for attorneys’ fees and costs. 

     

    The
      Parties agree that the release set forth in this section shall be and remain
      in
      effect in all respects as a complete general release as to the matters released.
      Notwithstanding any other term in this Agreement, this release does not extend
      to any obligations incurred under this Agreement. This release does not release
      claims that cannot be released as a matter of law, including, but not limited
      to, claims under Division 3, Article 2 of the California Labor Code (which
      includes California Labor Code section 2802 regarding indemnity for necessary
      expenditures or losses by employee) and claims prohibited from release as set
      forth in California Labor Code section 206.5 (specifically “any claim or right
      on account of wages due, or to become due, or made as an advance on wages to
      be
      earned, unless payment of such wages has been made”). 

     

    12. California
      Civil Code Section 1542.
      The
      Parties acknowledge that they have been advised to consult with legal counsel
      and are familiar with the provisions of California Civil Code Section 1542,
      a
      statute that otherwise prohibits unknown claims, which provides as
      follows:

     

    A
      GENERAL
      RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT
      TO
      EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN
      BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE
      DEBTOR.

     

    
      
        
        

      

      
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    The
      Parties, being aware of said code section, agree to expressly waive any rights
      they may have thereunder, as well as under any other statute or common law
      principles of similar effect.

     

    13. No
      Admission.
      This
      Agreement shall not be in any way construed as an admission by Company that
      it
      has acted wrongfully with respect to Mr. Downing or any other person, or that
      Mr. Downing has any rights whatsoever against Company.

     

    14. Miscellaneous.
      

     

    14.1. Successors
      and Assigns.
      This
      agreement shall be binding on the parties and upon their heirs, administrators,
      representatives, executors, successors and assigns and shall inure to their
      benefit and to that of their heirs, administrators, representatives, executors,
      successors and assigns.

     

    14.2. Severability.
      The
      provisions of this Agreement are severable. If any provision is held to be
      invalid or unenforceable, it shall not affect the validity or enforceability
      of
      any other provision. A court may modify any otherwise unenforceable clause
      set
      forth herein to render this Agreement enforceable.

     

    14.3. Headings.
      The
      headings of the sections contained in this Agreement are for convenience only
      and shall not be deemed to control or affect the meaning or construction of
      any
      provision of this Agreement.

     

    14.4. Counterparts.
      This
      Agreement may be executed in counterparts, and each counterpart shall have
      the
      same force and effect as an original and shall constitute an effective, binding
      agreement on the part of each of the undersigned.

     

    14.5. Notices.
      Any
      notice given to a party shall be in writing and shall be deemed to have been
      given when delivered personally or sent to by certified or registered mail,
      postage prepaid, return receipt requested, or by a nationally recognized courier
      service, duly addressed to the party concerned at the address indicated in
      the
      introductory paragraph hereto, or to such changed address as such party may
      subsequently give such notice of.

     

    14.6. Governing
      Law; Arbitration.
      This
      Agreement shall be governed by and construed under the laws of the State of
      California as such laws are applied to contracts made and to be fully performed
      entirely within that state between residents of that state. Any claim, dispute
      or controversy arising out of this Agreement, the interpretation, validity
      or
      enforceability of this Agreement or the alleged breach thereof shall be
      submitted by the parties to binding arbitration by the American Arbitration
      Association under its then existing commercial rules. The site of the
      arbitration proceeding shall be in San Francisco, California, or another
      location mutually agreed to by the parties.

     

    14.7. Entire
      Agreement; Modification.
      This
      Agreement sets forth the entire agreement between the parties hereto and
      supersedes any and all prior oral or written agreements or understandings
      between Mr. Downing and Company concerning the subject matter of this Agreement.
      This Agreement may not be altered, amended or modified, except by a further
      written document signed by both parties. 

     

    14.8. Voluntary
      Execution and Acceptance.
      This
      Agreement is executed voluntarily and without any duress or undue influence
      on
      the part or behalf of the parties hereto, with the full intent of releasing
      all
      claims. The parties acknowledge that:

     

    
      	 	
              14.8.1.

            	
              they
                have read this Agreement and are fully aware of its legal and binding
                effect;

            


    

     

    
      
        
        

      

      
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              14.8.2.

            	
              the
                terms of this Agreement are the product of mutual negotiation and
                compromise between Mr. Downing and
                Company;

            


    

     

    
      	 	
              14.8.3.

            	
              they
                understand the terms and consequences of this Agreement and of the
                releases it contains and that this Agreement settles, bars, and waives
                any
                and all claims that the parties have or could possibly have against
                the
                other party, unless prohibited from releasing such claim by
                law;

            


    

     

    
      	 	
              14.8.4.

            	
              they
                have been represented in the preparation, negotiation, and execution
                of
                this Agreement by legal counsel of their own choice or that they
                have
                voluntarily declined to seek such counsel. MR.
                DOWNING WAS ADVISED AND ENCOURAGED BY COMPANY TO CONSULT WITH AN
                ATTORNEY OR ANYONE ELSE OF HIS CHOOSING WHO IS NOT EMPLOYED BY COMPANY.
                

            


    

     

    Company
      and Mr. Downing now voluntarily and knowingly execute this Agreement, as of
      the
      date first above.

     

    

      
        	
                GOFISH
                  CORPORATION

                 

                 

                 

              	 	
                Michael
                  Downing

                 

                 

                 

              
	
                By:
                  

                Its:

              	 	 


      

    

     

    
      
        
        

      

      
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