Separation and Release Agreement between Evoke Communications, Inc. and Terence Kawaja

Summary

This agreement is between Evoke Communications, Inc. and Terence Kawaja, who is resigning as Executive Vice President and Chief Financial Officer effective March 2, 2001. The agreement outlines Mr. Kawaja’s resignation, severance payments, bonus, stock options, health insurance continuation, and the cancellation of certain loans and stock options. Mr. Kawaja agrees to return certain shares and releases the company from further obligations. The agreement also covers reimbursement of business expenses incurred before the separation date and sets conditions for continued benefits.

EX-10.23 3 0003.txt SEPARATION AND RELEASE AGREEMENT EXHIBIT 10.23 SEPARATION AND RELEASE AGREEMENT This SEPARATION AND RELEASE AGREEMENT (the "Agreement") is made and entered into by and between EVOKE COMMUNICATIONS, INC. ("Evoke" or "the Company") and Terence Kawaja ("Mr. Kawaja") (collectively "parties") as of the Execution Date of this Agreement defined in Paragraph 27 below. I. RECITALS WHEREAS, effective as of March 2, 2001, Mr. Kawaja will tender his voluntary resignation from his position as Executive Vice President and Chief Financial Officer of Evoke and any and all other positions he may have held with Evoke including, but not limited to, his position as a member of the Board of Directors of Evoke Europe; and WHEREAS, the parties wish to make the separation amicable but conclusive on the terms and conditions set forth herein; and WHEREAS, Mr. Kawaja accepts the benefits of this Separation and Release Agreement with the acknowledgment that by its terms he has been fully and satisfactorily compensated; and WHEREAS, the parties agree that this Separation and Release Agreement supercedes, replaces and extinguishes any and all other rights and obligations between the parties related to Mr. Kawaja's employment at Evoke, including but not limited to, any rights and obligations contained in the Personal Services Agreement entered into by Mr. Kawaja with Evoke on March 29, 2000, as amended. II. COVENANTS THEREFORE, in consideration of the Recitals set forth above which are incorporated herein by reference and of the mutual promises and covenants contained in this Separation and Release Agreement, it is hereby agreed by and between the parties hereto as follows: 1. Resignation. Effective as of March 2, 2001 ("Separation Date"), Mr. Kawaja's employment with Evoke as Executive Vice President and Chief Financial Officer and any and all other positions he may have held with Evoke including, but not limited to, his position as a member of the Board of Directors of Evoke Europe, shall cease. 2. Accrued Compensation. Evoke will compensate Mr. Kawaja for all accrued compensation and vacation as of the Separation Date. Mr. Kawaja is entitled to these payments whether or not he signs this Separation and Release Agreement. 3. Consideration. Although Evoke has no policy or procedure requiring payment of any severance benefits in case of voluntary resignation, Evoke agrees to the following as part of this Separation and Release Agreement. (a) Severance Benefits. Evoke will make severance payments to Mr. Kawaja in the form of continuation of his Base Salary in effect on the Separation Date for a period of five 1 (5) months commencing on the first business day following the Separation Date ("Severance Period"). These payments will be made on Evoke's ordinary payroll dates, and will be subject to standard payroll deductions and withholding. At its discretion, Evoke may accelerate the payment of the severance payments. Such acceleration, if any, shall not affect the total amount of salary continuation to be provided under the terms of the Separation and Release Agreement. All payments made during the Severance Period are expressly conditioned on Mr. Kawaja's compliance with his obligations under the Separation and Release Agreement, including but not limited to, Paragraphs 10 and 11 of the Separation and Release Agreement. (b) Bonus Payment. Evoke shall pay to Mr. Kawaja a bonus for the year 2000 in two components: (a) $107,500 in cash and (b) 100,000 options which are fully-vested non-qualified stock options at an exercise price of $0.10 per share (the "New Option"). The New Option shall be exercisable until 5:00 p.m., MST on one (1) year from the Separation Date. Such cash payment shall be made no later than March 2, 2001. (c) Health Insurance. To the extent permitted by federal COBRA law, Mr. Kawaja will be eligible to continue health insurance benefits and, later, to convert to an individual policy. Evoke will provide Mr. Kawaja a COBRA notification form setting forth his rights and responsibilities with regard to COBRA coverage. Should Mr. Kawaja timely elect to continue coverage pursuant to COBRA, Evoke agrees to pay his COBRA premiums for four (4) months commencing on the Separation Date in order for Mr. Kawaja to maintain health insurance that is substantially equivalent to his coverage immediately prior to the Separation Date ("COBRA Reimbursement Period"). Should Mr. Kawaja obtain employment with an employer who provides medical benefits during the COBRA Reimbursement Period, Evoke's obligation under this Paragraph shall forever cease upon the expiration of the waiting period (if any) for entitlement to insurance coverage through the new employer. Mr. Kawaja agrees to notify Evoke in writing in the event that he is eligible to be covered under another plan before the end of the COBRA Reimbursement Period. In any event, and not withstanding any provision to the contrary in this Paragraph, Evoke shall have no obligation to make any payments for COBRA premiums paid for health insurance coverage beyond the expiration of the COBRA Reimbursement Period. (d) Stock Options. All prior options to purchase Evoke capital stock (1,001,000 shares) are hereby canceled and may no longer be exercised and any of Evoke's obligations thereunder shall be deemed fully discharged and released and may no longer be exercised. (e) Loan for Shares. All principal and interest, if any, of Mr. Kawaja's outstanding loan (as it may have been amended) from the Company as more fully described on the promissory note attached as Exhibit A to this Agreement is hereby cancelled in consideration for the return of 250,000 outstanding shares of Evoke Common Stock (the "Repurchased Stock"). To effect the transfer of the Repurchased Stock, Mr. Kawaja has concurrently executed the Stock Power attached as Exhibit B hereto and returned stock certificate(s) representing the Repurchased Stock. Mr. Kawaja hereby represents and warrants that he has the full power and authority to transfer the Repurchased Shares free and clear of any liens or other encumbrances. 2 (f) Additional Consideration. As additional consideration for the terms of this Agreement, Evoke hereby agrees to grant Mr. Kawaja 250,000 shares of Evoke Common Stock pursuant to the Evoke 2000 Equity Incentive Plan. Mr. Kawaja acknowledges that such grant shall be taxable income to him and that he will receive a Form 1099 for the tax year 2001 reflecting the amount of such taxable income. Evoke shall not be responsible for any tax obligation resulting from this grant or any other terms and conditions of this Agreement. 4. Other Compensation. Except as expressly provided herein, Mr. Kawaja acknowledges and agrees that he will not receive (nor is he entitled to receive) any additional consideration, payments, reimbursements, stock or benefits of any kind. Mr. Kawaja further acknowledges and agrees that on the Separation Date, Evoke paid to him in full any and all wages, salary, accrued but unused vacation, personal time off, commissions, bonuses, stock options, incentives and compensation due and owing as of the Separation Date. 5. Business Expense Reimbursement. Evoke agrees to reimburse Mr. Kawaja for those reasonable business expenses he necessarily incurred in his capacity as an Evoke employee as of the Separation Date consistent with Evoke's policies in this regard. Mr. Kawaja acknowledges and agrees that unless expressly referenced herein, Evoke will not reimburse him for any expenses he incurs after the Separation Date. Mr. Kawaja must submit the necessary documentation establishing the amount, date and reason for expenses he incurred and for which he seeks reimbursement no later than 15 days after the Execution Date of this Separation and Release Agreement. The Compensation Committee shall review and evaluate any such expense to determine whether such business expense will be reimbursed. 6. Non-Interference. Mr. Kawaja agrees that he will not discuss any confidential aspect of Evoke's business or affairs with any employee, stockholder, customer, vendor, strategic partner of Evoke or other third party, except as may be requested by Evoke from time to time, as may be otherwise agreed to by Evoke, or as he is legally entitled to as a shareholder of Evoke. Mr. Kawaja further agrees that he will not alone or in combination with any other person or entity take any action to influence the management or strategic direction of Evoke other than as a shareholder of Evoke. 7. Nondisparagement. Each of Evoke and Mr. Kawaja agree not to, at any time, disparage the other party to third parties in any manner likely to be harmful to the other party's business or personal reputation, or the personal or business reputation of Evoke's directors, shareholders and/or employees. Notwithstanding the prohibition in the preceding sentence, each party shall respond accurately and fully to any question, inquiry, or request for information when required by legal process. Each party acknowledges and agrees that this paragraph 7 is a material consideration to the other party's entering into this Separation and Release Agreement and that breach of this paragraph 7 constitutes a material breach of the Separation and Release Agreement. 8. Cooperation in Pending Work. For two (2) months after the Separation Date, Mr. Kawaja agrees to fully cooperate with Evoke in all matters relating to the winding up of pending work on behalf of Evoke and the orderly transfer of work to other employees of Evoke following Mr. Kawaja's resignation. During the Severance Period, Mr. Kawaja shall also 3 cooperate in the resolution of any dispute, including litigation of any action, involving Evoke that relates in any way to Mr. Kawaja's activities while employed by Evoke. Evoke shall pay Mr. Kawaja's reasonable out-of-pocket expenses incurred in connection with his services in this regard. 9. Evoke Property. Except as expressly identified herein as items to be retained by Mr. Kawaja ("Retained Property"), Mr. Kawaja agrees to return to Evoke all Evoke documents (and all copies thereof) and any and all other Evoke property in Mr. Kawaja's possession, custody or control, including, but not limited to, financial information, customer information, customer lists, employee lists, Evoke files, notes, cellular telephones, personal computers, contracts, drawings, records, business plans and forecasts, financial information, specifications, computer-recorded information, software, tangible property, credit cards, entry cards, identification badges and keys, and any materials of any kind which contain or embody any proprietary or confidential material of Evoke (and all reproductions thereof) (the "Evoke Property"). For purposes of this Separation and Release Agreement, the Retained Property is identified as the following items: Mr. Kawaja's desktop computer (Tag #02282), monitor (Tag # 02153) and peripherals; Micron laptop computer (Tag #03390); two Meridian telephones; all PDAs; Motorola StarTac cell phone; Canon S-20 digital camera and attachments. Mr. Kawaja acknowledges and agrees that Evoke shall have the right and opportunity to sterilize the Retained Property of any such Evoke Property prior to the Separation Date, and Mr. Kawaja shall cooperate and permit Evoke to accomplish these efforts. Evoke may cause to be issued to Mr. Kawaja an IRS Form 1099 reflected the depreciated book value of the Retained Property. 10. Non-Competition. Mr. Kawaja acknowledges and agrees that during his employment with Evoke, he had access to confidential and proprietary business and technological information belonging to Evoke. As a condition to receiving the severance payments contained in this Separation and Release Agreement, and in order to protect the confidential information and customer relationships to which Mr. Kawaja had access, and to protect the good will and other business interests of Evoke, Mr. Kawaja agrees to the following provisions: (a) Mr. Kawaja covenants and agrees with Evoke that for a period of twelve (12) months from the Separation Date, Mr. Kawaja will not engage or participate, directly or indirectly, as principal, agent, employee, employer, consultant, advisor, sole proprietor, stockholder, partner, independent contractor, trustee, joint venture or in any other individual or representative capacity whatever, in the conduct or management of, or own any stock or other proprietary interest in, or debt of, any business organization, person, firm, partnership, association, corporation, enterprise or other entity that shall be engaged in any business (whether in operation or in the planning, research or development stage) that is a Competitive Business anywhere in the Restricted Territory, unless Mr. Kawaja shall obtain the prior written consent of the Board, given in its sole discretion, which consent shall make express reference to this Separation and Release Agreement. Notwithstanding the foregoing, Mr. Kawaja may (i) make passive investments in any company whose stock is listed on a national securities exchange or traded in the over-the-counter market so long as he does not come to own, directly or indirectly, more than five percent (5%) of the equity securities of such company or (ii) join an investment banking firm and provide general investment banking and advisory services to any business, 4 whether or not such business is a Competitive Business and (iii) become employed by a division of AT&T, MCI and Global Crossing, or an equivalently large, diversified corporation, provided that Executive is not assigned to a division or group which directs or conducts a Competitive Business. For purposes of this Separation and Release Agreement, a business shall be considered a "Competitive Business" if it involves or relates to (i) any business in which Evoke is actively engaged on the date of termination or any business in which during the twelve (12) months immediately preceding the date of termination Evoke actively contemplated engaging (as evidenced by inclusion in a written business plan or proposal) or (ii) any business in which an Affiliate is actively engaged on the date of termination or any business in which during the twelve (12) months immediately preceding the date of termination an Affiliate actively contemplated engaging (as evidenced by inclusion in a written business plan or proposal). The term "Restricted Territory" shall mean each and every county, province, state, city or other political subdivision of the United States. (b) During the period of twelve (12) months from the Separation Date, Mr. Kawaja shall not engage in any of the following conduct: (i) Solicit, divert, encourage, attempt to hire or assist any other person or entity in hiring or attempting to hire any current employee of Evoke or any person who was a Evoke employee within the three (3) month period prior to the termination of Mr. Kawaja's employment; (ii) Solicit, divert, or take away, in competition with Evoke, the business or patronage of any current Evoke customer. Notwithstanding the foregoing, this restriction shall not apply to any person or entity who is no longer a customer at the time of any such solicitation by Mr. Kawaja. (c) Mr. Kawaja agrees that if he acts in violation of Paragraph 10 or Paragraph 11 of this Separation and Release Agreement, the number of days that such violation exists will be added to any period of limitations on the specific activities. (d) The covenants contained in Paragraph 10(a) shall be construed as a series of separate covenants, one for each county, province, state, city or other political subdivision of the Restricted Territory. Except for geographic coverage, each such separate covenant shall be deemed identical in terms to the covenant contained in Paragraph 10(a). If, in any judicial proceeding, a court refuses to enforce any of such separate covenants (or any part thereof), then such unenforceable covenant (or such part) shall be eliminated from this Separation and Release Agreement to the extent necessary to permit the remaining separate covenants (or portions thereof) to be enforced. In the event that the provisions of this Paragraph 10 are deemed to exceed the time, geographic or scope limitations permitted by applicable law, then such provisions shall be reformed to the maximum time, geographic or scope limitations, as the case may be, permitted by applicable laws. (e) Without limitation of any of the provisions of this Paragraph 10, any payments to be made to Mr. Kawaja during the Severance Period shall be deemed to secure his agreements set forth in this Paragraph 10 and such payments may be terminated by the Evoke if 5 Mr. Kawaja fails to observe the agreements set forth in this Paragraph 10 and fails to cure such failure within ten (10) days of receipt of written notice of such failure. (f) Mr. Kawaja (i) acknowledges that his skills and experience are such that he can anticipate finding employment at a senior level in his profession, and (ii) represents and agrees that the restrictions imposed by this Paragraph 10 on engaging in competitive business activities are necessary for the protection of the legitimate interests and competitive position of Evoke and do not impose undue hardships on him. (g) Damages as a Result of Breach. In addition to (and not in limitation of) any other remedies that may be available to Evoke, upon breach of the covenants contained in Paragraph 10(a), Mr. Kawaja hereby agrees to pay to Evoke within twenty (20) calendar days the greater of: (i) the contractual damages available under applicable law and (ii) liquidated damages in the amount of $500,000.00. Mr. Kawaja acknowledges that because contractual damages may be speculative and difficult to estimate or prove, the liquidated damage provisions of this paragraph 10(g)(ii) is a fair and reasonable estimate of such potential damages. The existence of the liquidated damage provision of this paragraph 10(g) shall not limit any other claims or remedies that Evoke may have against Mr. Kawaja or any third party relating directly or indirectly to an alleged breach of this Agreement, including any claims against a Competitive Business. 11. Confidentiality. (a) Confidential Information. Mr. Kawaja acknowledges that he has had access to certain information related to the business, operations, future plans and customers of Evoke, the disclosure or use of which could cause Evoke substantial losses and damages. Accordingly, Mr. Kawaja covenants that he will keep confidential all information and documents furnished to him by or on behalf of Evoke and not use the same to his advantage, except to the extent such information or documents are lawfully obtained from other sources on a non- confidential (as to Evoke) basis or are in public domain through no fault on his part or is consented to in writing by Evoke. (b) Innovations, Patents, and Copyrights. Mr. Kawaja agrees to promptly disclose, in writing, all Innovations to Evoke. Mr. Kawaja further agrees to provide all assistance requested by Evoke, at its expense, in the preservation of its interests in any Innovations, and hereby assigns and agrees to assign to Evoke all rights, title and interest in and to all worldwide patents, patent applications, copyrights, trade secrets and other intellectual property rights or "Moral Rights" in any Innovation. "Innovations" shall mean all developments, improvements, designs, original works of authorship, formulas, processes, software programs, databases, and trade secrets, whether or not patentable, copyrightable or protectable as trade secrets, that Mr. Kawaja by himself or jointly with others, created, modified, developed, or implemented during the period of Mr. Kawaja's employment which relate in any way to Evoke's business. The term Innovations shall not include Innovations developed entirely on Mr. Kawaja's own time without using 6 Evoke's equipment, supplies, facilities or Confidential Information, and which neither relate to Evoke's business, nor result from any work performed by or for Evoke. 12. Right to Injunctive Relief. Mr. Kawaja agrees and acknowledges that a violation of the covenants contained in Paragraphs 10 and 11 of this Separation and Release Agreement will cause irreparable damage to Evoke, and that it is and may be impossible to estimate or determine the damage that will be suffered by Evoke in the event of a breach by Mr. Kawaja of any such covenant. Therefore, Mr. Kawaja further agrees that in the event of any violation or threatened violation of such covenants, Evoke shall be entitled as a matter of course to an injunction out of any court of competent jurisdiction restraining such violation or threatened violation by Mr. Kawaja. Such right to an injunction to be cumulative and in addition to whatever other remedies Evoke may have. 13. Lock-Up Agreement. Without the prior written consent of Evoke, Mr. Kawaja, for the duration of 90 days from the Severance Date: (i) agrees not to (x) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, or otherwise transfer or dispose of, directly or indirectly, any shares of common stock of the Company (the "Common Stock") or any securities convertible into or exercisable or exchangeable for Common Stock (including, without limitation, shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock which may be deemed to be beneficially owned by Mr. Kawaja in accordance with the rules and regulations of the Securities and Exchange Commission) (collectively, "Company Securities") or (y) enter into any swap or other arrangement that transfers all or a portion of the economic consequences associated with the ownership of any Company Securities (regardless of whether any of the transactions described in clause (x) or (y) is to be settled by the delivery of Company Securities, in cash or otherwise); and (ii) authorizes the Company to cause the transfer agent to decline to transfer and/or to note stop transfer restrictions on the transfer books and records of the Company with respect to any Company Securities for which Mr. Kawaja is the record holder and, in the case of any such shares or securities for which Mr. Kawaja is the beneficial but not the record holder, agrees to cause the record holder to cause the transfer agent to decline to transfer and/or to note stop transfer restrictions on such books and records with respect to such shares or securities. Notwithstanding the foregoing, Mr. Kawaja may transfer shares of Company Securities (A) as a bona fide gift or gifts or by will or intestacy, provided that the transferee thereof agree to be bound by the restrictions set forth herein or (B) to any trust for the direct or indirect benefit of Mr. Kawaja or the immediate family of Mr. Kawaja, provided that the trustee of the trust agrees to be bound by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value. For purposes of this Separation and Release Agreement, "immediate family" shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. 7 14. Denial of Liability. The parties acknowledge that any payment by Evoke and any release by Mr. Kawaja pursuant to this Separation and Release Agreement are made in compromise of disputed claims, that in making any such payment or release, Evoke and Mr. Kawaja in no way admit any liability to each other, and that the parties expressly deny any such liability. 15. Non-Disclosure of Agreement. Mr. Kawaja acknowledges that confidentiality and nondisclosure are material considerations for Evoke entering into this Separation and Release Agreement. As such, the provisions of this Separation and Release Agreement shall be held in strictest confidence and shall not be publicized or disclosed in any manner whatsoever, including but not limited to, the print or broadcast media, any public network such as the Internet, any other outbound data program such as computer generated mail, reports or faxes, or any source likely to result in publication or computerized access. Notwithstanding the prohibition in the preceding sentence: (a) the parties may disclose this Separation and Release Agreement in confidence to their respective attorneys, accountants, auditors, tax preparers, and financial advisors; (b) Evoke may disclose this Separation and Release Agreement as necessary to fulfill standard or legally required corporate or public reporting or disclosure requirements; (c) Evoke may disclose this Separation and Release Agreement upon request from any government entity; and (d) the parties may disclose this Separation and Release Agreement insofar as such disclosure may be necessary to enforce its terms or as otherwise required by law. 16. Release of Claims By Mr. Kawaja. In consideration for the consideration set forth in this Separation and Release Agreement and the mutual covenants of Evoke and Mr. Kawaja, Mr. Kawaja hereby releases, acquits and forever discharges Evoke, its affiliated corporations and entities, its and their officers, directors, agents, representatives, servants, attorneys, employees, shareholders, successors and assigns of and from any and all claims, liabilities, demands, causes of action, costs, expenses, attorneys' fees, damages, indemnities and obligations of every kind and nature, in law, equity, or otherwise, known or unknown, suspected and unsuspected, disclosed and undisclosed, liquidated or contingent, arising out of or in any way related to agreements, events, acts or conduct at any time prior to and including the Execution Date, including but not limited to: any and all such claims and demands directly or indirectly arising out of or in any way connected with Mr. Kawaja's employment with Evoke or the conclusion of that employment; claims or demands related to salary, bonuses, commissions, stock, stock options, or any ownership interests in Evoke, vacation pay, personal time off, fringe benefits, expense reimbursements, sabbatical benefits, severance benefits, or any other form of compensation; claims pursuant to any federal, any state or any local law, statute, common law or cause of action including, but not limited to, the federal Civil Rights Act of 1964, as amended; attorney's fees, costs, and other expenses under Title VII of the federal Civil Rights Act of 1964, or any other statute, agreement or source of law; the federal Americans with Disabilities Act of 1990; the Family and Medical Leave Act; Colorado Fair Employment Act; tort law; contract law; wrongful discharge; discrimination; harassment; fraud; defamation; libel; emotional distress; and breach of the implied covenant of good faith and fair dealing. Mr. Kawaja agrees that in the event he brings a claim covered by this release in which he seeks damages against Evoke or in the event he seeks to recover against Evoke in any claim brought by a governmental agency on 8 his behalf, this Separation and Release Agreement shall serve as a complete defense to such claims. 17. Tax Consequences. Mr. Kawaja agrees to indemnify Evoke and hold Evoke harmless from any and all claims or penalties asserted against Evoke for any failure to pay taxes due on any consideration provided by Evoke pursuant to this Separation and Release Agreement. Mr. Kawaja expressly acknowledges that Evoke has not made, nor herein makes, any representation about the tax consequences of any consideration provided by Evoke to Mr. Kawaja pursuant to this Separation and Release Agreement. 18. No Third-Party Rights. The parties agree that by making this Separation and Release Agreement they do not intend to confer any benefits, privileges, or rights to others. The Separation and Release Agreement is strictly between the parties hereto, subject to the terms of paragraph 18 below, and it shall not be construed to vest in any other the status of third-party beneficiary. 19. Voluntary and Knowingly. Mr. Kawaja acknowledges that in executing this Separation and Release Agreement, he has reviewed it and understands its terms and had an opportunity and was advised to seek guidance from counsel of his own choosing, and was fully advised of his rights under law, and acted knowingly and voluntarily 20. Duty to Effectuate. The parties agree to perform any lawful additional acts, including the execution of additional agreements, as are reasonably necessary to effectuate the purpose of this Separation and Release Agreement. 21. Entire Agreement. This Separation and Release Agreement constitutes the complete, final, and exclusive embodiment of the entire agreement between Mr. Kawaja and Evoke with regard to the subject matter hereof. This Separation and Release Agreement is entered into without reliance on any promise or representation, written or oral, other than those expressly contained herein. It may not be modified except in a writing that refers to this Separation and Release Agreement signed by Mr. Kawaja and a duly authorized officer of Evoke. 22. Successors and Assigns. This Separation and Release Agreement shall bind the heirs, personal representatives, successors, assigns, executors and administrators of each party, and inure to the benefit of each party, its heirs, successors and assigns. 23. Applicable Law. This Separation and Release Agreement was entered into in the State of Colorado, and the parties agree and intend that it be construed and enforced in accordance with the laws of the State of Colorado. 24. Forum. Any controversy arising out of or relating to this Separation and Release Agreement or the breach thereof, or any claim or action to enforce this Separation and Release Agreement or portion thereof, or any controversy or claim requiring interpretation of this Separation and Release Agreement must be brought in a forum located within the State of Colorado. No such action may be brought in any forum outside the State of Colorado. Any action brought in contravention of this Paragraph 24 by one party is subject to dismissal at any 9 time and at any stage of the proceedings by the other, and no action taken by the other in defending, counterclaiming or appealing shall be construed as a waiver of this right to immediate dismissal. A party bringing an action in contravention of this Paragraph 24 shall be liable to the other party for the costs, expenses and attorney's fees incurred in successfully dismissing the action or successfully transferring the action to a forum located within the State of Colorado. 25. Severable. If any provision of this Separation and Release Agreement is determined to be invalid, void or unenforceable, in whole or in part, this determination will not affect any other provision of this Separation and Release Agreement, and the provision in question shall be modified so as to be rendered enforceable. 26. Enforce According To Terms. The parties intend this Separation and Release Agreement and Exhibit A to be enforced according to their terms. 27. Execution Date. This Separation and Release Agreement is effective on the later of the dates that each party signed this Separation and Release Agreement ("Execution Date"). 28. Section Headings. The section and paragraph headings contained in this Separation and Release Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Separation and Release Agreement. IN WITNESS WHEREOF, the parties have duly authorized and caused this Separation and Release Agreement to be executed as follows: TERENCE G. KAWAJA, an individual EVOKE COMMUNICATIONS, INC. /s/ Terence G. Kawaja By: /s/ Paul Berbarian - ---------------------------------- --------------------------------- Terence G. Kawaja Its: CEO -------------------------------- Date: March 2 , 2001 Date: 3/2 , 2001 ----------------------- ------------------------ 10