ex10-3.htm


    
      Exhibit
10.3

      SEPARATION AGREEMENT AND MUTUAL RELEASE IN
FULL



      THIS
SEPARATION AGREEMENT AND MUTUAL RELEASE IN FULL (this “Agreement”) is made by
and between William Koehler (the “Former Director”) and Bluegate Corporation, a
Nevada corporation (together with its subsidiaries, the “Company”).

      


      PRELIMINARY
STATEMENT

      The
Former Director served on the Board of Directors of the Company;

      


      The
Former Director holds shares of the Company’s common stock and stock options
exercisable for shares of the Company’s common stock; and

      


      The
Former Director and the Company desire to settle fully and finally all matters
between them, including any matters that may have arisen out of Former
Director’s service on the Board of Directors and his employment with the Company
and his separation therefrom.

       

      AGREEMENT

       

      
        	
                 
        

              	
                NOW,
      THEREFORE, in consideration of the mutual covenants and promises contained
      in this Agreement, the Former Director and the Company agree as
      follows:

              


      

      
        	
                1.  

              	
                The
      Former Director’s employment with the Company terminated effective as of
      the close of business on May 31, 2009 (the “Separation
    Date”).

              


      

       

      
        	
                2.  

              	
                The
      Former Director resigned as a Director of the Company, such resignation
      took effect as of the close of business on October 27, 2009 (“the
      Resignation Date”).

              


      

       

      
        	
                3.  

              	
                The
      Former Director agrees that he will not, directly or indirectly, and will
      not cause or permit any person or entity controlled by him
      to:  a) make or in any way participate in any “solicitation” of
      “proxies” (as such terms are used in the proxy rules of the Securities and
      Exchange Commission) to vote, or seek to advise or influence any person
      with respect to the voting of any voting securities of the Company; b)
      form, join, or in any way participate in a “group” (within the meaning of
      Section 13(d)(3) of the Securities Act of 1933, as amended) with respect
      to any voting securities of the Company; c) form, join, or in any way
      participate in any shareholder action regarding the Company; and/or d)
      advise, assist or encourage any other persons in connection with any of
      the foregoing.

              


      

       

      
        	
                4.  

              	
                For
      a period of five years after the Effective Date, without the prior written
      consent of the Board of Directors of the Company, the Former Director
      agrees that he will not, directly or indirectly, and will not cause or
      permit any person or entity controlled by him to:  (a) induce or
      attempt to induce any employee to leave the employ of the Company or an
      independent contractor to terminate its retention by the Company, (b)
      solicit for employment, attempt to employ or employ (whether as an
      employee, independent contractor or otherwise) any employee or independent
      contractor of the Company or (c) in any way interfere with the
      relationship between the Company and any of its employees or independent
      contractors.

              


      

       

      
        	
                5.  

              	
                The
      Former Director and Company agrees that he/it will not make any
      disparaging comments regarding the other or any of its former, current, or
      future stockholders, directors, officers, or employees.  The
      phrase “disparaging comments” will mean any comment, remark, or statement,
      whether written or oral, that is harmful to the reputation of the Former
      Director or Company or any such other person in the
    community.

              


      

       

      
        	
                6.  

              	
                The
      Former Director agrees that on or prior to November 11, 2009 he will
      return to the Company all credit cards, keys, identification, computer
      software and hardware, telecommunications equipment, and all other
      property belonging to the Company.

              


      

       

      
        	
                7.  

              	
                The
      Company agrees that it will return to the Former Director no later than
      the date he vacates the Company’s offices all personal information along
      with the furniture, artwork, and computer software and hardware (as
      detailed in Schedule 2) belonging to the Former Director.  The
      Company also agrees to provide the Former Director with a schedule listing
      the capital contributions made by the Former Director to the Company to
      date that can be readily documented, with no warranty of accuracy by the
      Company.  The Company further agrees that any and all public
      filings needed to be completed as  a result of this Agreement
      will be done at Company expense, including but not limited to Form 4 and
      13D and an Opinion Letter to remove the restrictive legend from Former
      Directors’ and his affiliates’ restricted
  shares.

              


      

       

      
        	
                8.  

              	
                The
      Former Director hereby waives any rights or entitlements to any employee
      benefits or other obligations of the Company (including any wage claims,
      Director’s fees, vehicle allowances or expense account reimbursements) up
      to and including the Resignation Date, other than those rights or
      entitlements which may be required by law; provided
      that:  (a) the Former Director will be entitled to receive any
      401k plan benefits for which the Former Director is eligible in accordance
      with the terms of the plans and law based on the Former Director’s
      compensation and length of service through the Separation Date and all
      post-termination health insurance continuation benefits required to be
      provided by law and (b) this Agreement will not be deemed to constitute a
      waiver of the Former Director’s rights, if any, to indemnification or
      advancement of expenses in accordance with the certificate or articles of
      incorporation and bylaws of the Company, as in effect as of the Effective
      Date, with respect to any claim, action, suit or proceeding relating to or
      involving the Former Director’s service as a Director or officer of the
      Company prior to the Resignation
Date.

              


      

       

      
        	
                9.  

              	
                As
      consideration for the Former Director’s acceptance of the terms and
      conditions in this Agreement, the Company will pay a separation payment of
      One Dollar (the “Separation Payment”), which will be subject to all
      applicable federal and state tax withholding and statutory
      deductions.  The Separation Payment will be made no later than
      November 11, 2009.

              


      

       

      
        
          
          

        

        
          1

          
            

          

        

        
          
          

        

      

      
        	
                10.  

              	
                In
      exchange for the valuable consideration
  hereunder:

              


      

      
        	
                a.  

              	
                The
      Former Director, for and on behalf of himself and his heirs,
      beneficiaries, executors, administrators, attorneys, successors and
      assigns, hereby releases and waives all claims, causes of action and
      demands of any kind against the Company, any of its affiliates (including
      each stockholder of the Company), or any creditors of the Company, any of
      their respective employee plans and any of their respective stockholders,
      Directors, officers, trustees, employees, attorneys and agents, in their
      individual and official capacities, and all of their predecessors, heirs,
      executors, administrators, successors and assigns (collectively, the
      “Released Parties”), which the Former Director had, has or may have
      through the date the Former Director executes this Agreement, whether
      known or unknown, arising out of or relating to:  (i) the Former
      Director’s employment with the Company or the termination thereof, (ii)
      the Former Director’s service as a Director or officer of the Company or
      his resignation as a Director or officer, (iii) the Former Director’s
      ownership of capital stock of the Company, or of options, warrants, rights
      or other securities or instruments exercisable or exchangeable for or
      convertible into shares of the capital stock of the Company, or the sale
      and assignment of such capital stock or other securities to the Company
      pursuant to this Agreement, (iv) any notes, indebtedness, obligations,
      liabilities of the Company, including, without limitation, the amounts
      described in Schedule 1, or (v) to matters otherwise arising up to and
      including the Resignation Date, including any wages, bonuses or
      commissions, or on account of any alleged conduct of the Released Parties
      which might be alleged by the Former Director to constitute race, color,
      sex, religious, age, national origin, ancestry, genetic information or
      disability discrimination, or any claim or right under Title VII of the
      Civil Rights Act of 1964, as amended,  the Civil Rights Act of
      1991 and the laws amended thereby, the Americans with Disabilities Act,
      the Age Discrimination in Employment Act of 1967, as amended, the Older
      Workers Benefit Protection Act, the Family and Medical Leave Act, the
      Equal Pay Act, the Fair Labor Standards Act, the Rehabilitation Act of
      1973, the Employee Retirement Income Security Act of 1974, the Texas
      Commission on Human Rights Act, the Texas Persons with Mental Retardation
      Act, the Texas Tests for Acquired Immune Deficiency Syndrome and Related
      Disorders law, Texas wage and hour laws, or any other provision of
      federal, state or local statutory or common law or
      regulation.  Nothing in this paragraph shall be construed as a
      waiver or relinquishment of any right that Former Director may have in any
      stock, options, or warrants that currently exist and that are held by
      Former Director, the terms of which are in full force and effect and shall
      not be modified hereby.  In the event anyone claiming to be
      released hereby files any claim against the Former Director, this release
      will become null and void and of no effect for that party making the claim
      against the Former Director. 

              


      

      
        	
                b.  

              	
                The
      Company, for and on behalf of itself and its heirs, beneficiaries,
      executors, administrators, attorneys, successors and assigns, hereby
      releases and waives all claims, causes of action and demands of any kind
      against the Former Director in his individual and official capacities,
      which the Company had, has or may have through the date the Former
      Director executes this Agreement, whether known or unknown, arising out of
      or relating to:  (i) the Former Director’s employment with the
      Company or the termination thereof, (ii) the Former Director’s service as
      a director or officer of the Company or his resignation as a director or
      officer, (iii) the Former Director’s ownership of capital stock of the
      Company, or of options, warrants, rights or other securities or
      instruments exercisable or exchangeable for or convertible into shares of
      the capital stock of the Company, or the sale and assignment of such
      capital stock or other securities to the Company pursuant to this
      Agreement, (iv) any notes, indebtedness, obligations, liabilities of the
      Former Director, including, without limitation, the amounts described in
      Schedule 1, or (v) to matters otherwise arising up to and including the
      Resignation Date, including any wages, bonuses or commissions, or on
      account of any alleged conduct of the Former Director which might be
      alleged by the Company.

              


      

       

      
        	
                11.  

              	
                To
      the extent not prohibited by applicable law, the Former Director and the
      Company hereby warrants that he/it has and will not institute any lawsuit,
      claim, action, charge, complaint, petition, appeal, accusatory pleading,
      or proceeding of any kind against the other Party or any other Released
      Party, and both Parties waive, or at a minimum assign to the other Party,
      any and all rights to any and all forms of recovery or compensation from
      any legal action brought by the other Party or on that other Party’s
      behalf in connection with the matters that are the subject of this
      Agreement.  To the extent not prohibited by applicable law, in
      the event that a lawsuit or any of the foregoing actions are filed by the
      Former Director or the Company in breach of this covenant, it is expressly
      understood and agreed that:

              


      

      
        	
                a.  

              	
                This
      covenant will constitute a complete defense to any such lawsuit or
      action.

              


      

      
        	
                b.  

              	
                Any
      material breach by a Party of any of the terms contained in this Agreement
      relieves the other Party of any and all obligations it may have pursuant
      to this Agreement.

              


      

      
        	
                c.  

              	
                Should
      a Party bring any type of administrative or legal action arising out of
      claims waived under this Agreement, the Party bringing the action will
      bear all legal fees and costs associated therewith, including those of any
      Released Parties.

              


      

      


      
        	
                12.  

              	
                For
      a period of five years after the Effective Date, as necessary, the Former
      Director agrees to provide thorough and accurate information and testimony
      voluntarily to or on behalf of the Company or any affiliate thereof
      regarding any investigation, litigation or claims initiated by or against
      the Company or any affiliate thereof or by any entity or person (a
      “Proceeding”), but he agrees not to disclose or to discuss with anyone who
      is not directing or assisting in any Proceeding, other than his attorney,
      the fact of or the subject matter of any Proceeding, except as required by
      law.  The Former Director will take all reasonable steps to
      cooperate fully with the Company or any affiliate in supplying thorough
      and accurate information in each Proceeding and during the defense or
      prosecution thereof.  The Former Director will make commercially
      reasonable efforts to accommodate his schedule to cooperate with the
      Company or any affiliate and provide such information as soon as is
      reasonable under the circumstances.  In requesting information
      the Company or any affiliate will attempt to work with the Former Director
      to arrange times that reasonably accommodate his schedule and, to the
      extent permitted by law, the Company will reimburse the Former Director
      for reasonable travel, commuting, parking or other similar out-of-pocket
      expenses incurred by him in connection with providing such information or
      testimony.

              


      

       

      
        	
                13.  

              	
                This
      Agreement will be binding upon and will inure to the benefit of the
      successors, assigns, heirs, executors and administrators of the respective
      parties.

              


      

       

      
        	
                14.  

              	
                The
      Former Director acknowledges and agrees that the Company has not made any
      representations to the Former Director regarding the tax consequences of
      any amounts received by the Former Director pursuant to this Agreement and
      further the Former Director agrees that he will be solely responsible for
      payment of all his personal tax liabilities due on any and all payments to
      him set forth in this Agreement, including federal, state and local taxes,
      and interest and penalties, which are or may become
  due.

              


      

       

      
        	
                15.  

              	
                Nothing
      contained in this Agreement, or the fact of its submission to the Former
      Director, will be admissible evidence in any judicial, administrative or
      other legal proceeding, or be construed as an admission of any liability
      or wrongdoing on the part of the Company or the other Released Parties of
      any violation of federal or state statutory or common law or
      regulation.

              


      

       

      
        	
                16.  

              	
                Should
      any provision of this Agreement be held invalid or unenforceable by
      operation of law or otherwise, all other provisions will remain in full
      force and effect; provided that a court
      may modify any provision to make it valid and
  enforceable.

              


      

       

      
        	
                17.  

              	
                This
      Agreement sets forth the entire agreement between the parties and
      supersedes any and all prior oral or written agreements or understandings
      between the Former Director and the Company.  This Agreement may
      not be altered, amended, or modified except by a further written document
      signed by the Former Director and an authorized officer of the
      Company.

              


      

       

      
        
          
          

        

        
          2

          
            

          

        

        
          
          

        

      

      
        	
                18.  

              	
                This
      Agreement will be construed and enforced in accordance with the laws of
      the State of Texas without reference to its or any other state’s conflicts
      of law rules.

              


      

       

      
        	
                19.  

              	
                This
      Agreement may be executed in counterparts, each of which will be deemed to
      be an original but all of which together will constitute one and the same
      instrument.  A facsimile signature will be deemed to be an
      original signature for all
purposes.

              


      

       

      
        	
                20.  

              	
                The
      Former Director acknowledges that he has had adequate time to review this
      Agreement, that he has been advised by the Company to consult with legal
      counsel of his choosing regarding this Agreement, that he has received
      adequate consideration for this Agreement, and that he enters into this
      Agreement freely, knowingly and
voluntarily.

              


      

       

      
        	
                21.  

              	
                The
      provisions of this Agreement shall become effective once both parties have
      executed the Agreement below (the “Effective
  Date”).

              


      

       

      
        
          
          

        

        
          3

          
            

          

        

        
          
          

        

      

       

      IN
WITNESS WHEREOF, the Parties hereto have executed this Separation Agreement and
Mutual Release In Full as of the date specified below.

      


      Bluegate
Corporation

      


      By: /s/ Charles E.
Leibold                                     November 7, 2009

              Charles
E. Leibold

              Chief
Financial Officer

      


      Accepted
and agreed to this Seventh (7th) day
of November, 2009

      


      By: /s/ William
Koehler

              William
Koehler

      


      Witness:
/s/ Jimmy
Riggle

                      Jimmy
Riggle

       

      
        
          
          

        

        
          4

          
            

          

        

        
          
          

        

      


      SCHEDULE 1

      


      


      William Koehler Amounts Payable and Accrued Through
10/31/09

       

      

        
          	
                  Amount

                	 	
                  Description

                
	$	34,628	 	
                  Note
      payable as of 10/31/09

                
	$	9,004	 	
                  Accrued
      interest on note payable as of 10/31/09

                
	$	22,499	 	
                  Accrued
      director's fees through 10/31/09

                
	$	6,000	 	
                  Accrued
      vehicle allowance from 5/1/08 through 12/31/08

                
	$	742	 	
                  Accrued
      interest on payroll checks held until cashed

                
	$	72,873	 	
                  Total
      Accrued

                


        



      William Koehler Texas Wage
Claim = $42,000

      


      


      


      
        
          
          

        

        
          5

          
            

          

        

        
          
          

        

      

      SCHEDULE 2

      


      


      William Koehler – Furniture, Artwork, and Computer
Software and Hardware

       

      Reference
Asset Sale and Purchase Agreement for Trilliant Technology Group (“TTG”) to be
purchased by Trilliant Corporation from Bluegate Corporation.

      




    
      
        
        

      

      
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