Unassociated Document


     

    SEPARATION
      AGREEMENT

    


    This
      Separation Agreement (“Agreement”) is entered into effective this 26th day of
      September, 2008 by and between Gateway International Holdings, Inc., a Nevada
      corporation, and its subsidiaries (“Gateway”) and Lawrence
      A. Consalvi, an individual (“Consalvi”). Gateway and Consalvi shall each be
      referred to as a “Party” and collectively as the “Parties.”

    


    RECITALS

    


    WHEREAS,
      Gateway is a company
      engaged in the acquisition, refurbishment, distribution and sales of pre-owned
      computer numerically controlled (“CNC”) machine tools to manufacturing customers
      across the United States of America;

    


    WHEREAS,
      Consalvi resigned from his positions as an Executive Vice President and a
      Director of Gateway, and from all positions he held with Gateway’s subsidiaries;


    


    WHEREAS,
      Gateway to accepted Consalvi’s resignation from the above-mentioned positions;


    


    WHEREAS,
      by this Agreement the Parties wish to memorialize the terms of Consalvi’s
      resignation from Gateway;

    


    NOW,
      THEREFORE, for good and adequate consideration, the receipt of which is hereby
      acknowledged, without admitting or denying any wrongdoing by any Party hereto,
      the Parties hereto covenant, promise and agree as follows:

    


    AGREEMENT

    


    1. In
      exchange for Consalvi’s resignation Gateway and Consalvi agreed certain
      outstanding matters would be resolved after the effective date of his
      resignation. This Agreement resolves all outstanding issues between Gateway
      and
      Consalvi. A copy of Consalvi’s resignation is attached hereto as Exhibit
      A.
      

    


    2. This
      Agreement shall not be in any way be construed as an admission by Gateway that
      it has acted wrongfully with respect to Consalvi or any other person, or that
      Consalvi has any rights whatsoever against Gateway.

    


    3. Consalvi’s
      resignation is not and cannot be construed as an involuntary or without cause
      termination under the terms of Sections 2 and 4.2.4, or a termination by
      executive for good reason under Sections 4.1.4 and 4.2.4, of that certain
      Employment Agreement entered into by and between Consalvi and Gateway on or
      about February 7, 2007 (the “Employment Agreement”). Consalvi’s resignation
      terminated the Employment Agreement, and this Agreement supersedes the
      Employment Agreement with regard to all material terms.

    


    4.
       Consalvi
      acknowledges that he is aware that even if he does not sign this Agreement,
      Gateway will pay Consalvi all compensation earned through the date of his
      resignation, plus any accrued vacation benefits and properly submitted expense
      reports. Similarly, Consalvi further acknowledges that he is aware that even
      if
      he does not sign this Agreement, he will be offered benefits to which he is
      entitled under the Consolidated Omnibus Budget Reconciliation Act of 1985
      ("COBRA"), if applicable.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    5.
       In
      exchange for the promises contained in this Agreement and release of claims
      as
      set forth below, and provided that Consalvi signs this Agreement and returns
      it
      to Gateway’s President by October 22, 2008, and does not revoke his consent to
      this Agreement as set forth in Section 14(d):

     

    a.
       Gateway
      will pay Consalvi a severance in the amount of nine full months (October 2008
      through June 2009) of pay at Consalvi’s regular rate of pay at the time of his
      resignation, with such payments made in accordance with Gateway’s regular
      payroll practices;

     

    b. Gateway
      will pay Consalvi’s full medical benefits in accordance with the medical plan he
      is currently under, for the same nine-month period; and

     

    c. Gateway
      will pay Consalvi a car allowance for car-related expenses, including, but
      not
      limited to, car payment, car insurance, repairs, and gas, equal to Consalvi’s
      car allowance at the time of his resignation, for the same nine-month period.
      If
      any payments are made to Consalvi under this Sub-Section, and Consalvi collects
      insurance proceeds for the same repairs or issues, such insurance proceeds
      shall
      be paid by Consalvi to Gateway.

     

    6. In
      exchange for the promises contained in this Agreement, Consalvi will return
      400,000 shares of Gateway’s common stock that he owns for cancellation and
      deposit into Gateway’s treasury stock in repayment of business expenses payments
      paid to Consalvi prior to May 2008. In order to cancel these shares, Consalvi
      agrees to sign and return, with a valid medallion guarantee, the stock power
      attached hereto as Exhibit
      B,
      and no
      payments will be made to Consalvi under this Agreement until the stock power
      has
      been received by Gateway with a signed copy of this Agreement.

    


    7. In
      consideration of this Agreement, effective on the date hereof and except as
      otherwise provided herein, Consalvi, and his respective agents and assigns,
      hereby release Gateway and each and all of its present and former agents,
      officers, directors, shareholders, attorneys, and employees, from and against
      any and all claims, agreements, contracts, covenants, representations,
      obligations, losses, liabilities, demands and causes of action which it may
      now
      or hereafter have or claim to have against Gateway, as a result of Consalvi’s
      employment by Gateway. This release of claims and defenses shall not alter
      the
      prospective duties between the Parties under this Agreement. 

    


    8. Consalvi
      acknowledges and agrees that this release applies to all claims that he may
      have
      against Gateway arising out of, or pertaining to his employment by Gateway,
      including, but not limited to, causes of action, injuries, damages, claims
      for
      costs or losses to a Party’s person and property, real or personal, whether
      those injuries, damages, or losses are known or unknown, foreseen or unforeseen,
      or patent or latent. Consalvi agrees not to file any complaints, causes of
      action, or grievances with any governmental, state or county entity against
      Gateway arising out of, or pertaining his employment by Gateway. Additionally,
      Consalvi acknowledges that his resignation acts as a termination of the
      Employment Agreement.

    


    9. Consalvi
      expressly agrees and understands that the above releases will be effective
      as of
      the date of this Agreement and that his sole remedy against Gateway, or any
      of
      its officers or directors, regarding his employment by Gateway will be for
      breach of this Agreement.

    


    10. Section
      1542 Release.
      It is
      understood and agreed by Consalvi that all rights under Section 1542 of the
      Civil Code of California, which provides as follows:

    


    “A
      general release does not extend to claims which the creditor does not know
      or
      suspect to exist in his favor at the time of executing the release, which if
      known by him must have materially affected his settlement with the
      debtor,”

     

    are
      hereby expressly waived. Consalvi further waives any protection under California
      Civil Code Section 1542. Consalvi acknowledges, agrees and understands the
      consequences of a waiver of Section 1542 of the California Civil Code and
      assumes full responsibility for any and all injuries, damages, losses or
      liabilities that may hereinafter arise out of or be related to Consalvi’s
      employment by Gateway. Consalvi understands and acknowledges that the
      significance and consequence of this waiver of Section 1542 of the Civil Code
      is
      that even if a Consalvi should eventually suffer additional damages arising
      out
      of the subject matter hereof, he will not be permitted to make any claim for
      those damages. Furthermore, Consalvi acknowledges that he intends these
      consequences even as to claims for damages that may exist as of the date of
      this
      Agreement but which he does not know exists, and which, if known, would
      materially affect his decision to execute this Agreement, regardless of whether
      his lack of knowledge is the result of ignorance, oversight, error, negligence,
      or any other cause.

     

    
      
        
        

      

      
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    11. In
      exchange for Consalvi’s release of Gateway, its officers, directors,
      shareholders, attorneys, employees, consultants and advisors as set forth in
      this Agreement, Gateway hereby agrees to release Consalvi from the
      non-competition provisions contained in Section 5.1.1 of the Employment
      Agreement, and any other agreements between Gateway and Consalvi. In addition,
      Gateway agrees to indemnify Consalvi for any legal fees or costs, and any
      damages that Consalvi is forced to pay as a result of the lawsuit entitled
      Onofrio
      Saputo and Christopher Frisco v. Gateway International Holdings, Inc., Lawrence
      Consalvi, Timothy Consalvi and Joe Gledhill, Case No.
      30-2008-0011090,
      so long
      as those damages are not a result of intentional or fraudulent acts by
      Consalvi. 

     

    12.
       On
      or
      before October 1, 2008, and before any severance will be paid under this
      Agreement, Consalvi agrees to return to Gateway all of the company's property
      in
      his possession including, but not limited to, all Gateway documents and files,
      all Gateway credit cards, and all of the tangible and intangible property
      belonging to Gateway and relating to Consalvi’s employment with the Company; and
      to allow access to any computer used for Gateway business, including disks
      and
      electronic files. 

     

    13.
       Consalvi
      agrees to cooperate fully with Gateway in its defense of or other participation
      in any administrative, judicial or other proceeding arising from any charge,
      complaint or other action which has been or may be filed. 

     

    14.
       In
      the
      event that Consalvi breaches any of his obligations under Sections 12 and 13,
      any outstanding obligations of Gateway hereunder shall immediately terminate,
      any payments previously made to Consalvi pursuant to Section 5 shall be returned
      to Gateway, and Gateway reserves the right to pursue legal action against
      Consalvi for any damages caused by such breach.

     

    15. Each
      Party hereto will hold and will cause its agents, officers, directors,
      attorneys, employees, consultants and advisors to hold in strict confidence,
      unless compelled to disclose by judicial or administrative process or, in the
      opinion of its counsel, by other requirements of law, the terms of this
      Agreement and all other documents and information concerning any other Party
      furnished it by such other Party or its representatives in connection with
      the
      subject matter hereof or Consalvi’s employment by Gateway (except to the extent
      that such information can be shown to have been (i) previously known by the
      Party to which it was furnished, (ii) in the public domain through no fault
      of
      such Party, or (iii) later lawfully acquired from other sources by the Party
      to
      which it was furnished), and each Party will not release or disclose such
      information to any other person, except its auditors, attorneys, financial
      advisors, bankers and other consultants and advisors in connection with this
      Agreement. Each Party shall be deemed to have satisfied its obligation to hold
      confidential information concerning or supplied by the other Party if it
      exercises the same care as it takes to preserve confidentiality for its own
      similar information. 

     

    
      
        
        

      

      
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    16. Except
      the claims expressly not waived by the other provisions of this Agreement,
      such
      as Section 17(b) below, Consalvi, on his own
      behalf,
      and anyone claiming through him, irrevocably and unconditionally releases,
      acquits and forever discharges Gateway and/or its subsidiaries, divisions,
      predecessors, successors and assigns, as well as each of their past and present
      officers, directors, employees, shareholders, trustees, joint venturers,
      partners, and anyone claiming through them (hereinafter “Releasees”
collectively), in each of their individual and/or corporate capacities, from
      any
      and all claims, liabilities, promises, actions, damages and the like, known
      or
      unknown, which Consalvi has ever had against any of the Releasees arising out
      of
      or relating to Consalvi’s employment with Gateway and/or the termination of
      Consalvi’s employment with Gateway. Said claims include, but are not limited to:
      (1) employment discrimination (including claims of sex discrimination and/or
      sexual harassment) and retaliation under Title VII (42 U.S.C.A. 2000e etc.)
      and
      under 42 U.S.C.A. section 1981 and section 1983, age discrimination under the
      Age Discrimination in Employment Act (29 U.S.C.A. sections 621-634) as amended,
      under the California Constitution, under any Fair Employment and Housing Act
      (“FEHA”), under the California Labor Code and/or any other relevant state
      statutes or municipal ordinances; (2) disputed wages; (3) wrongful discharge
      and/or breach of any alleged employment contract; and (4) claims based on any
      tort, such as invasion of privacy, defamation, fraud and infliction of emotional
      distress. Consalvi agrees that he will not bring any legal action against any
      of
      the Releasees for any claim waived and released under this Agreement and he
      represents and warrants that no such claim has been filed to date. Consalvi
      further agrees if he brings any type of administrative or legal action arising
      out of claims waived or released under this Agreement, Consalvi will bear all
      legal fees and costs, including those of the Releasees.

    


    17. Consalvi
      also acknowledges that he has been informed pursuant to the federal Older
      Workers Benefit Protection Act of 1990 that: 

    


    a.
       Consalvi
      has the right to consult with an attorney before signing this
      Agreement;

    


    b.
       Consalvi
      does not waive rights or claims under the federal Age Discrimination in
      Employment Act that may arise after the date this waiver is
      executed.

    


    c.
       Consalvi
      has twenty-one (21) days from the date of this Agreement to consider this
      Agreement;

    


    d. Consalvi
      has seven (7) days after signing this Agreement to revoke the Agreement, and
      the
      Agreement will not be effective until that revocation period has
      expired.

    


    18. Each
      Party acknowledges and represents that, in executing this Agreement, such Party
      has had the opportunity to consult legal counsel, and has not relied on any
      inducements, promises, or representations made by any Party or any party
      representing or serving such Party, unless expressly set forth
      herein.

    


    19. This
      Agreement pertains to a disputed claim and does not constitute an admission
      of
      liability by any Party for any purpose, except as otherwise provided
      herein.

    


    20. This
      Agreement may not be amended, canceled, revoked or otherwise modified except
      by
      written agreement subscribed by all of the Parties to be charged with such
      modification.

    


    21. This
      Agreement shall be binding upon and shall inure to the benefit of the Parties
      hereto and their respective partners, employees, agents, servants, heirs,
      administrators, executors, successors, representatives and assigns.

     

    
      
        
        

      

      
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    22. All
      Parties hereto agree to pay their own costs and attorneys' fees except that
      in
      the event of any action, suit or other proceeding instituted to remedy, prevent
      or obtain relief from a breach of this Agreement, arising out of a breach of
      this Agreement, involving claims within the scope of the releases contained
      in
      this Agreement, or pertaining to a declaration of rights under this Agreement,
      the prevailing Party shall recover all of such Party's attorneys' fees and
      costs
      incurred in each and every such action, suit or other proceeding, including
      any
      and all appeals or petitions therefrom.

    


    23. This
      Agreement and the rights of the parties hereunder shall be governed by and
      construed in accordance with the laws of the State of California including
      all
      matters of construction, validity, performance, and enforcement and without
      giving effect to the principles of conflict of laws. Venue for any action
      brought under this Agreement shall be in the appropriate court in Orange County,
      California.

    


    24. This
      Agreement sets forth the entire agreement and understanding of the Parties
      hereto and supersedes any and all prior agreements, arrangements and
      understandings related to the subject matter hereof. No understanding, promise,
      inducement, statement of intention, representation, warranty, covenant or
      condition, written or oral, express or implied, whether by statute or otherwise,
      has been made by any party hereto which is not embodied in this Agreement or
      the
      written statements, certificates, or other documents delivered pursuant hereto
      or in connection with the transactions contemplated hereby, and no Party hereto
      shall be bound by or liable for any alleged understanding, promise, inducement,
      statement, representation, warranty, covenant or condition not so set
      forth.

     

    25. The
      Parties represent that they fully understand their right to review all aspects
      of this Agreement with an attorney of their choice, that they have had the
      opportunity to consult with an attorney of their choice, that they have
      carefully read and fully understands all the provisions of this Agreement and
      that they freely, knowingly and voluntarily entering into this Separation
      Agreement. By signature below the Parties acknowledge they willing to enter
      into
      this Agreement. Consalvi, by signing this Agreement and returning to Gateway
      on
      or before October 22, 2008, signifies his acceptance of this Agreement. As
      noted
      earlier, this Agreement will not become effective, and none of the severance
      benefits in Section 5 will be paid, until seven (7) days after the date Consalvi
      signs this Agreement.

     

    [signature
      page follows]

     

    
      
        
        

      

      
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    IN
      WITNESS WHEREOF, the Parties hereto, agreeing to be bound hereby, execute this
      Agreement upon the date first set forth above.

     

    
 

    
      	
              “Gateway”

            	 	
              “Consalvi”

            
	 	 	 
	
              Gateway
                International Holdings, Inc.,

            	 	
              Lawrence
                A. Consalvi

            
	
              a
                Nevada corporation

            	 	
              an
                individual

            
	
               

               

              /s/
                Joseph Gledhill   

            	 	
               

               

              /s/
                Lawrence A. Consalvi  

            
	
              By:
                Joseph Gledhill

            	 	
              By:
                Lawrence A. Consalvi

            
	
              Its:
                Executive Vice President

            	 	 
	 	 	 


    

     

    
      
        
        

      

      
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    Exhibit
      A

    


    RESIGNATION

     

    
      
        
        

      

      
        7

        
          

        

      

      
        
        

      

       

    

    Exhibit
      B

    


    STOCK
      POWER

     

    
      
        
        

      

      
        8

        
          

        

      

      
        
        

      

    

     

    IRREVOCABLE
      STOCK POWER

     

    FOR
      VALUE
      RECEIVED, the undersigned does hereby sell, assign and transfer to Gateway
      International Holdings, Inc., for cancellation, a total of Four Hundred Thousand
      (400,000) shares of Common Stock of Gateway International Holdings, Inc., a
      Nevada corporation, represented by stock certificate No. _________, issued
      in
      the name of the undersigned. Any remaining shares from stock certificate No.
      _________, if any, to be returned to the undersigned.

    


    IN
      WITNESS HEREOF, the party below has executed this Irrevocable Stock Power as
      of
      the date indicated by his signature below.

    


    


    


    
      	Dated:
              __________________, 2008	 	 
	 	 	By: Lawrence A. Consalvi
	 	 	 
	 	 	 
	 	 	 
	Medallion
              Guaranteed	 	 
	 	 	 


    

     

    
      
        
        

      

      
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