Unassociated Document


    
       

      SEPARATION
        AND RELEASE AGREEMENT

       

       THIS
        SEPARATION AND RELEASE AGREEMENT
        (the
“Agreement”) is effective as of August 15, 2005 by and between Timothy M.
        Roberts (the “Employee”) and Infinium Labs, Inc., a Delaware corporation (the
“Company”). 

       

      WITNESSETH:

       

      WHEREAS,
        the
        Employee is employed as the Company’s Chief Executive Officer; and

       

      WHEREAS,
        the
        Company and the Employee have mutually decided that the Employee will resign
        and
        receive compensation pursuant to the terms and conditions contained
        herein;

      


       NOW,
        THEREFORE,
        the
        Employee and the Company, intending to be legally bound hereby and in
        consideration of the promises contained herein, do hereby agree as
        follows:

       

      1. Resignation.
        The
        Employee agrees to resign as the Company’s Chief Executive Officer effective as
        of the end of the day on August 15, 2005 (the “Resignation Date”). The Employee
        acknowledges and agrees that after the Resignation Date, he will not have
        the
        authority to represent or bind the Company or its subsidiaries as an officer
        or
        employee. 

       

      2. Termination
        of Employment and Options. 

       

      2.1 The
        Employee acknowledges and agrees that this Agreement shall serve to terminate
        his employment and that this Agreement sets forth all the compensation that
        is
        payable to him, effective as of the Resignation Date. The Employee will continue
        to receive regular salary pursuant to the Company’s normal payroll practices
        through the Resignation Date. 

       

      2.2 The
        Employee agrees that he will have until August 15, 2015 (“Expiration Date”), to
        exercise any vested options (“Vested Options”) that have been granted to him by
        the Company during the term of his employment with the Company. In addition,
        the
        Company will accelerate the vesting of ten million (10,000,000) options,
        with an
        exercise price of $0.07, granted to the Employee pursuant to his employment
        agreement. The Employee acknowledges and agrees that the only Vested Options
        that he owns as of the date of this Agreement are the above-mentioned options
        to
        purchase ten million (10,000,000) shares of the Company’s common stock at an
        exercise price of $0.07 per share. Such option may be exercised on a
        cashless-basis after 1 year if there is not an effective registration statement
        covering such options. 

      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      3. Severance
        Payments. 

       

      3.1 Severance
        Payment.
        In
        consideration of the covenants set forth herein, the Company agrees to pay
        the
        Employee a cash severance payment equal to $250,000 in twelve (12) equal
        monthly
        installments, commencing September 1, 2005. In addition, the Company will
        (i)
        grant, upon execution of the Agreement, the Employee an additional ten million
        (10,000,000) shares of its restricted common stock (par value $0.0001); (ii)
        maintain the Employee’s current company email address so long as the Employee
        remains a member of the Company’s Board of Directors; and (iii) grant the
        Employee piggy-back registration rights for any Company securities he may
        hold.

      


      3.2 Benefits.
        The
        Company will pay for twelve (12) months of benefits coverage at Employee’s
        current level of participation in accordance with Consolidated Omnibus Budget
        Reconciliation Act (COBRA) regulations. The Company will also provide the
        Employee with information regarding any benefits which may be converted to
        individual coverage and/or coverage which includes his spouse in accordance
        with
        COBRA regulations. Employee acknowledges and agrees that he will not be entitled
        to any perquisites, benefits or other compensation whatsoever after the
        Resignation Date, except as described in this Agreement.

       

      3.3 Amounts
        Stated Before Taxes.
        All
        amounts stated in this Agreement are prior to any deduction for applicable
        withholding taxes and other amounts that are required to be withheld or deducted
        by federal and Florida law

      


       4. Waiver
        and Release.
        For good
        and valuable consideration, the receipt and sufficiency of which is acknowledged
        by the Employee, including the payments to the Employee as described in Section
        3 hereof, Employee hereby agrees that regardless of who assumes his duties,
        his
        separation of employment from the Company was not due in any way to age or
        any
        other type of discrimination or any wrongful act of the Company, and Employee
        and his Releasors do hereby voluntarily and fully release and forever discharge
        the Company from any and all claims, demands, causes of action, claims for
        relief, and damages, of whatever kind or nature, known or unknown, developed
        or
        undeveloped, which Employee had, now has or may hereinafter have from the
        beginning of the world to the date of this Agreement, including, without
        limitation, all claims and all rights which the Employee may have under Title
        VII of the Civil Rights Act of 1964; the Equal Employment Opportunity Act
        of
        1972; the Civil Rights Act of 1991; the Age Discrimination and Employment
        Act of
        1967; the Employee Retirement Security Act 42 U.S.C. § 1981; the Older Workers’
        Benefit Protection Act; the Americans with Disabilities Act; the Family Medical
        Leave Act of 1993; the Equal Pay Act; the Fair Labor Standards Act; the Sarasota
        County Equal Opportunity Ordinance, any federal or state whistleblower acts
        and
        any and all other federal, state and local laws and statutes which regulate
        employment; and the laws of contracts, tort and other subjects. (The Employee
        agrees that the forgoing enumeration of claims released is illustrative,
        and the
        claims hereby released are in no way limited by the above recitation of specific
        claims, it being the intent of the Employee to fully and completely release
        all
        claims whatsoever in any way relating to the Employee’s employment with the
        Company and to the termination of such employment.)

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       5. No
        Admission of Liability.
        For
        purposes of paragraph 4, “Releasors” shall mean, collectively, the spouse of the
        Employee and the Employee’s dependents, heirs, executors administrators and
        assigns, past and present and each of them and their trustees, directors,
        officers, agents, attorneys, insurers, employees, stockholders, representatives,
        successors, assigns and all persons acting by, through, under or in connection
        with them, past and present. Execution of this Agreement and payment of the
        payments specified in Section 3 of this Agreement does not constitute an
        admission by the Company of any violation of any civil rights or other
        employment discrimination statute, or any other legal statute, provision,
        regulation, ordinance, order or action under common law. Rather, this Agreement
        expresses the intention of the parties to resolve all issues and other claims
        related to or arising out of Employee’s employment by the Company without the
        time and expense of litigation.

       

      6. Attorneys
        Fees.
        In the
        event either party files any action or suit regarding any of the terms of
        this
        Agreement or in relation to, or involving, Employee’s employment by Company,
        then the prevailing party shall be entitled to recover upon final judgment
        on
        the merits its or his reasonable attorney’s fees and court costs (including,
        without limitation, appellate attorney’s fees and court costs) incurred in
        bringing such action and all costs or expenses, including, without limitation,
        attorney’s fees and court costs, incurred in collecting any
        judgment.

      


      7. Indemnification
        and Hold Harmless Provision.
        Company
        hereby agrees to indemnify Employee, his heirs, successors, and assigns and
        hold
        Employee harmless from any and all liabilities, obligations, collateralizations,
        personal guarantees, expenses, fees, and costs (including attorney’s and
        professional fees) of every kind, nature, and description, which now exist
        or
        may exist now or hereafter with respect to Employee’s activities, duties, or
        responsibilities as Chief Executive Officer of Company, or any subsequent
        position, or in relation to any of Company’s subsidiaries, affiliates, or
        related entities. Such indemnification and hold harmless benefits shall be
        payable by Company whenever incurred by Employee so long as such costs or
        expenses relate to or arise from such activities, duties, and responsibilities
        of Employee and shall not be in any way be dependent upon Employee’s employment
        with Company. Furthermore, any indemnification agreements already entered
        into
        between and among Company and Employee shall remain in force.

       

      In
        the
        event Employee is made a party to a lawsuit or is involved in a legal proceeding
        in any manner (including by subpoena or as a witness), which relates directly
        or
        indirectly to Company or the Employee’s performance of his duties under this
        Agreement, in which Employee in his sole discretion believes that it is in
        his
        best interest to retain independent legal and other professional counsel,
        Company shall be obligated to pay all professional fees, costs, and expenses
        so
        incurred within 30 days of a notice provided by Employee advising of his
        selection of counsel. 

      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      8.  No
        Complaints or Litigation.
        The
        Employee represents and warrants that he has not filed against the Company
        or
        any of its subsidiaries or affiliates any complaints, charges or law suits
        arising out of his employment by the Company, or any other matter arising
        on or
        prior to the date hereof. The Employee covenants and agrees that he has
        completely and fully released the Company from any and all liability, as
        set
        forth in Section 4 of this Agreement.

       

      9. Governing
        Law.
        The law
        of the State of Florida shall govern the validity of this Agreement, the
        construction of its terms and the interpretation of the rights and duties
        of the
        parties. This Agreement constitutes the entire agreement and understanding
        between the Employee and the Company regarding the Employee’s resignation from
        employment with the Company. Any agreement to amend or modify the terms and
        conditions of this Agreement must be in writing and executed by the parties
        hereto. This Agreement may be specifically enforced in judicial proceedings
        and
        may be used as evidence in a subsequent proceeding in which a breach is alleged.
        Headings are for convenience only and should not be used in interpreting
        this
        Agreement. 

      


      10. Non
        Disparaging Remarks.
        The
        Employee agrees that he will not directly or indirectly, individually or
        in
        concert with others, (i) disparage, interfere with or attempt to interfere
        with,
        the Company’s reputation, goodwill, services, business and/or the Company’s
        stockholders, directors, officers, employees, agents, representatives and
        any
        affiliates or (ii) engage in any conduct, take any actions or make any
        statements (oral or written) to the public, future employers, customers,
        vendors, the investment community, the media, current, former or future Company
        employees, or any other third party whatsoever that is calculated to have,
        or
        reasonably likely or possibly having, the effect of undermining, disparaging
        or
        otherwise reflecting negatively or could reasonably be considered to undermine,
        disparage or reflect negatively, on the Company, its reputation, goodwill,
        services, business and/or stockholders, directors, officers, employees, agents,
        representatives and its affiliates. 

       

      11. Omitted 

       

      12. Future
        Cooperation.
        The
        Employee agrees to cooperate fully with the Company in connection with any
        matter or event relating to his employment or events that occurred during
        his
        employment, including, without limitation, in the defense or prosecution
        of any
        claims or actions not in existence or which may be brought or threatened
        in the
        future against the Company, including, but not limited to any claims or actions
        against its officers, directors and employees. The Employee’s cooperation in
        connection with such matters, actions and claims shall include, without
        limitation, being available, after reasonable notice to meet with the Company
        regarding matters in which the Employee was involved; to prepare for any
        proceeding (including without limitation, depositions, consultations, discover
        or trial); to provide affidavits; to assist with any audits or reviews of
        the
        Company’s financial statements; to assist with any legal proceeding or other
        inquiry and to act as a witness in connection with any litigation or other
        legal
        proceeding affecting the Company. The Employee shall be reimbursed for any
        reasonable out-of-pocket expenses incurred in connection with providing such
        cooperation under this Section 10. Hotel room and airfare costs shall be
        born by
        the company in advance of any such travel. The Employee further agrees that
        should he be contacted (directly or indirectly) by any person or entity adverse
        to the Company, the Employee shall promptly notify an executive officer of
        the
        Company in writing.

      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       13. Effect
        of Settlement, Interpretation and Schedules.
        The
        Company and Employee intend this Agreement to be legally binding upon and
        inure
        to the benefit of each of them and their respective heirs, administrators,
        executors, successors and assigns. The language of this Agreement shall be
        construed as a whole, according to its fair meaning and intent and not strictly
        for or against any party hereto, regardless of who drafted or was principally
        responsible for drafting this Agreement. The recitals contained at the beginning
        of this Agreement are expressly made a part of this Agreement. All Schedules
        identified in this Agreement (Schedule 2.3, Schedule 3.1 and Schedule 6)
        are
        incorporated herein by reference and made a part hereof. 

       

      14. Enforcement.
        

      


      14.1 The
        Employee agrees that the Company, its subsidiaries and affiliated parties,
        would
        be damaged irreparably in the event that any provision of this Agreement
        were
        not performed in accordance with its terms or were otherwise breached and
        that
        money damages would be an inadequate remedy for any such nonperformance or
        breach. Accordingly, the Company and its successors and permitted assigns
        shall
        be entitled, in addition to other rights and remedies existing in their favor,
        to an injunction or injunctions to prevent any breach or threatened breach
        of
        any of such provisions and to enforce such provisions specifically (without
        posting a bond or other security). The Employee agrees that he will submit
        himself to the personal jurisdiction of the courts of the State of Florida
        in
        Sarasota County or any other applicable court in any action by the
        Company.

      


      14.2  The
        Employee acknowledges and agrees that in the event that he breaches any of
        the
        provisions of this Agreement or has made any false representations to the
        Company, the Company will be entitled to apply for and receive an injunction
        to
        restrain any violation of this Agreement and the foregoing shall not affect
        the
        validity of this Agreement and such relief does not constitute in any way
        a
        penalty or forfeiture.

      


      15. Severability.
        Should
        any provision of this Agreement be declared illegal or unenforceable by any
        court of competent jurisdiction and cannot be modified to be enforceable,
        including the general release language, such provision shall immediately
        become
        null and void, leaving the remainder of the Agreement in full force and
        effect.

       

       

      [Signatures
        on following page]

      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      IN
        WITNESS WHEREOF,
        the
        aforesaid parties have hereunto set their hands and seals as of the day below
        written.

       

       

      /s/
        Timothy M. Roberts      

      Timothy
        M. Roberts

      Chief
        Executive Officer

      


      Executed
        on August 15, 2005

      


      Infinium
        Labs, Inc.

       

      /s/
        Richard Angelotti      
        

      Richard
        Angelotti

      Director

      


      Executed
        on August 15, 2005