EXHIBIT 17.3
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RESIGNATION AND TERMINATION AGREEMENT
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THIS RESIGNATION AND TERMINATION AGREEMENT (this "Agreement") is
entered into as of November 22, 1999 among Anthony Adimey ("Resigning Person"),
Digital DJ, Inc., a California corporation ("DDJ") and Breakthrough Electronics,
Inc., a Nevada corporation ("BEI"), with reference to the following.
RECITALS
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A. Resigning Person is an officer, director or key employee or
independent contractor for BEI .
B. BEI is entering into an Agreement and Plan of Merger with
Digital DJ, Inc. ("DDJ"), which will result in a change of control of BEI and
the appointment of new directors and officers of BEI.
C. As a condition of completing the merger, DDJ has required that the
officers, directors employees and contractors of BEI resign from their positions
and certify that they have no claims against BEI and that they release BEI from
any unknown claims.
D. DDJ has also required as part of the Agreement and Plan and Merger
that such persons repudiate and agree to the termination of their former and
existing employees agreements concerning their relationship with BEI and the
officers, directors and contractors desire to repudiate such contracts.
AGREEMENT
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NOW, THEREFORE, in consideration of the foregoing premises, the
provisions set forth below and other good and valuable consideration, the
parties agree as follows.
18. Termination. In consideration of DDJ agreeing to merge with BEI,
Resigning Person hereby repudiates the terms of his agreement with or by BEI,
whether written, oral or created by past conduct and releases and discharges BEI
for, from and against any other obligation with BEI to pay salary, expenses,
fees or consideration of any type or for BEI to repay any loans or reimburse any
costs, to the Resigning Person.
19. Resignation. The Resigning Person hereby resigns as an
officer, director and from any and all other positions Resigning Person has or
may have with BEI, whether pursuant to written or oral agreement or otherwise,
as of the Effective Date, as defined below.
20. Effective Date. The Effective Date of this resignation and the
termination described below, shall be the Closing Date of the merger as that
term is defined in the Agreement and Plan of Merger between BEI and DDJ.
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21. Release. The Resigning Person hereby releases, discharges,
forgives, acquits and covenants not to sue or bring a claim against BEI or DDJ,
which may have arisen during any period prior to and includes the Effective
Date, or against any of their officers, directors, shareholders, consultants,
accountants, attorneys, heirs and assigns, including BEI for any right, claim,
action, cause of action, or obligation or any kind or nature related to
Resigning Person's employment with BEI.
22. 1542 Release. In addition to the foregoing release, it is further
agreed and understood that all rights under Section 1542 of the California Civil
Code, and any similar laws of any state or territory of the United States are
hereby expressly waived. Said Section reads as follows: "A general release does
not extend to claims which the creditor does not know or expect to exist in his
favor at the time of executing the release, which if known by him must have
materially affected the settlement with the debtor."
23. No Prior Assignment. The Resigning Person represents and warrants
to BEI and DDJ that he has not previously assigned any of the rights or causes
of action released in this Agreement.
24. Change, Modification, Waiver. No change or modification of the
Agreement shall be valid unless it is in writing and signed by each of the
parties. No waiver of any provisions of the Agreement shall be valid unless it
is in writing and signed by the party against whom the waiver is sought to be
enforced. The failure of a party to insist upon strict performance of any
provision of the Agreement in any one or more instances shall not be construed
as a waiver or relinquishment of any right to insist upon strict compliance with
such provision in the future. No waiver of any other provision of this Agreement
shall be deemed, or shall constitute, a waiver of any other provision, whether
or not similar, nor shall any waiver constitute a continuing waiver.
25. Parties in Interest. Nothing in this Agreement, whether express
or implied, is intended to confer upon any person other than the parties hereto
and their respective heirs, representatives, indemnifier, insured, successors,
and permitted assigns, any rights or remedies under or by reason of this
Agreement, nor is anything in the Agreement intended to relieve or discharge the
liability of any other party hereto.
26. Disputes. This Agreement will be interpreted in accordance with
California law, including all matters of construction, validity, performance and
enforcement, without giving effect to any principles of conflict of laws. The
parties irrevocably consent to the jurisdiction of the courts in San Francisco
County, California. Any dispute or proceeding concerning this Agreement will be
resolved in San Francisco County, California.
27. Attorneys' Fees. If any arbitration, litigation, action, suit or
other proceeding is instituted to remedy, prevent or obtain relief from a breach
of this Agreement, in relation to a breach of this Agreement or pertaining to a
declaration of rights under this Agreement, the prevailing party will recover
all such party's attorneys' fees incurred in each and every such action, suit or
other proceeding, including any and all appeals or petitions therefrom. As used
in this Agreement, attorneys' fees will be deemed to be the full and actual cost
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of any legal services actually performed in connection with the matters
involved, including those related to any appeal or the enforcement of any
judgment, calculated on the basis of the usual fee charged by attorneys
performing such services, and will not be limited to "reasonable attorneys'
fees" as defined in any statute or rule of court.
28. Severability. Each provision of this Agreement is intended to be
severable and if any term or provision herein is determined invalid or
unenforceable for any reason, such illegality or invalidity will not affect the
validity of the remainder of this Agreement and, wherever possible, intent will
be given to the invalid or unenforceable provision.
29. Interpretation.The language in all parts of this Agreement will be
in all cases construed simply according to its fair meaning and not strictly for
or against any party. Whenever the context requires, all words used in the
singular will be construed to have been used in the plural, and vice versa, and
each gender will include any other gender. The captions of the sections of this
Agreement are for convenience only and will not affect the construction or
interpretation of any of the provisions herein.
30. Counterparts. This Agreement may be executed in one or more
counterparts, each of which when executed and delivered will be an original, and
all of which when executed will constitute one and the same instrument.
31. Further Actions. The parties will sign such additional documents
and take such further action as may be reasonably required to consummate or
otherwise fulfill the intent of this Agreement.
32. Assignment. This Agreement will inure to the benefit of and be
binding upon the predecessors, successors, heirs, permitted assigns,
representatives, agents, servants, directors and shareholders of the parties.
33. Beneficiary. The parties acknowledge that DDJ is an intended third
party beneficiary of this Agreement.
34. Miscellaneous. The recitals and all exhibits, attachments or other
documents referenced in this Agreement are fully incorporated into this
Agreement by reference. Unless expressly set forth otherwise herein, all
references herein to a "day", "month" or "year" will be deemed to be a reference
to a calendar day, month or year, as the case may be. Unless expressly set forth
otherwise herein, all cross-references herein will refer to provisions within
this Agreement, and will not be deemed to be references to the overall
transaction or to any other agreement or document.
IN WITNESS WHEREOF, the parties agree to be bound by the terms of this
Agreement, and set their hand hereto in duplicate original as the date first
above written.
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"RESIGNING PERSON"
ANTHONY ADIMEY, an individual
BREAKTHROUGH ELECTRONICS, INC.
By:/s/Lawrence W. Spperstein
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Lawrence W. Sapperstein, President
DIGITAL DJ, INC.
By:/s/Tsutomu Takahisa
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Tsutomu Takahisa, President
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