EXHIBIT 10.27
Onelink Corporation
Xxx Xxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
April 21, 2006
Xxxx X. Xxxxxx
0 Xxxxxx Xxx
Xxxx Xxxxxx, XX 00000
Re: Separation and Release Agreement
Dear Xxxx:
This letter sets forth the terms of the Separation and Release Agreement
("Agreement") between you and Onelink Corporation (the "Company") concerning
your separation from the Company. Additionally, in return for payments and
benefits that you are not otherwise entitled to receive, this Agreement contains
waivers and releases described in detail below.
1. EMPLOYMENT STATUS
-----------------
Your final day of employment as Chief Financial Officer and all other
positions with the Company was April 14, 2006. You will receive your unpaid
regular earnings and payment for your accrued but unused vacation through
that date on the Company's next regular payroll date of April 28, 2006.
2. SEVERANCE AND CONSULTING OBLIGATIONS AND BENEFITS
-------------------------------------------------
The Company will pay you an amount equal to nine months (which equals
$168,750) of your normal compensation, less normal deductions for taxes and
other required withholdings ("Severance Cash Payments"). The Severance Cash
Payments will be made by check and mailed to your home address set forth
above in installments based on the schedule attached as Schedule A. During
approximately the next month you will assist the Company with the
preparation, and filing with the SEC, of the Company's required reports
(the 10-KSB/A Report due April 30, 2006 and the 10-QSB Report due May 15,
2006). You will not be required to work any minimum number of hours, but
you will devote such time and attention consistent with past practices
involving SEC reports to accomplish these projects. Other persons will be
responsible for the primary drafting and timely filing of these documents,
but you will review and comment on the drafts prior to filing. You also
will complete and sign the Management Questionnaire that was distributed to
you last week, and return it to the CEO no later than April 22, 2006. If
any additional services are requested by the Company, you will be
compensated as a 1099 consultant at an hourly rate of $135.
The Company has granted to you options to purchase up to 300,000 shares of
the Company's common stock. The option agreements related to these option
grants will be amended and restated as of April 14, 2006 to provide for:
(i) the termination of your options to purchase 50,000 shares at $1.50 per
share; (ii) the full vesting of 140,000 shares of your options to purchase
250,000 shares at $1.00 per share, with a right by you to exercise any or
all of your vested shares through April 14, 2011; and (iii) the termination
of the balance of options to purchase 110,000 shares at $1.00 per share.
We agree that the agreement between the Company and Geddes Consulting
Associates is terminated, effective this date, and that no amounts are due
from the Company to Geddes Consulting Associates except for uninvoiced
amounts covering the consulting services rendered prior to the date hereof
by Xxxxx Xxxxx, which amount shall be paid within 30 days of the Company's
receipt of an invoice from Geddes Consulting Associates; provided, also,
that if the Company uses the services of Xxxxx Xxxxx at any time from the
date hereof through December 31, 2006, the Company shall pay Geddes
Consulting Associates for such services at the standard hourly rate.
3. CONFIDENTIALITY
---------------
By signing this Agreement you agree that you will not use or disclose
confidential or privileged information relating to the Company or any of
its activities, including without limitation information about current or
future projects, marketing information, financing and other financial
information, business plans, customers, patents or patent applications,
trade secrets, and personnel information (including employee names, home
addresses, phone numbers, compensation, or job descriptions or
responsibilities), and you agree to continue to comply with the Employee
Proprietary Information Agreement executed by you on August 1, 2005.
The commitments to confidentiality set forth in this Section 3 are an
essential part of the consideration for the Company to enter into this
Agreement and breach of any of these commitments would constitute a
material breach of this Agreement. If you breach this section you will
immediately cease to receive benefits under this Agreement and the Company
will take legal action against you as appropriate.
The provisions of this Agreement will be held in strictest confidence by
you and the Company and will not be publicized or disclosed in any manner
whatsoever; provided, however, that: (a) you may disclose this Agreement to
your immediate family; (b) the parties may disclose this Agreement in
confidence to their respective attorneys, accountants, auditors, tax
preparers, and financial advisors; (c) the Company may disclose this
Agreement as necessary to fulfill standard or legally required corporate
reporting or disclosure requirements (including attaching this Agreement as
an exhibit to Form 8-K); and (d) the parties may disclose this Agreement
insofar as such disclosure may be necessary to enforce its terms or as
otherwise required by law.
4. WAIVER, RELEASE AND COVENANT NOT TO XXX
---------------------------------------
In exchange for the benefits described in paragraph 2 above, except as
stated in this Agreement, you, Geddes Consulting Associates, and your other
affiliates release and forever discharge the Company and its former or
current directors, officers, employees, members, agents, successors,
predecessors, subsidiaries, affiliates, assigns and attorneys (the
"Released Parties") from any and all charges, claims, damages, injury and
actions, in law or equity, which you or your heirs, successors, executors,
or other representatives ever had, now have, or may have by reason of any
act, omission, matter, cause or thing through the date of your execution of
this Agreement. You understand that this Agreement is a General Release of
all claims you may have against the Released Parties based on any act,
omission, matter, case or thing through the date of your execution of this
Agreement, whether known or unknown.
You realize there are many laws and regulations governing the employment
relationship. These include, but are not limited to, Title VII of the Civil
Rights Acts of 1964 and 1991; the Americans with Disabilities Act; the Age
Discrimination in Employment Act; the National Labor Relations Act; 42
U.S.C. ss. 1981; the Family and Medical Leave Act; the Employee Retirement
Income Security Act of 1974 (other than any accrued benefit(s) to which you
have a non-forfeitable right under any pension benefit plan); other state,
local, and federal employment laws; and any amendments to any of the
foregoing. You also understand there may be other statutes and laws of
contract and tort that also relate to your employment. By signing this
Agreement, you waive and release any rights you may have against the
Released Parties under these and any other laws based on any act, omission,
matter, cause or thing through the date of your execution of this
Agreement. With respect to the released claims, You also agree not to
initiate, join, or voluntarily participate in any action or suit in any
court or to accept any damages or other relief from any such proceeding
brought by anyone else based on any act, omission, matter, cause or thing
through the date of your execution of this Agreement.
You expressly waive Section 1542 of the California Civil Code, which
provides:
"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."
Notwithstanding the above, it is agreed that your release does not include
a release of any claims you may have for indemnification.
Except as stated in this Agreement, the Released Parties hereby generally
and completely release you and Geddes Consulting Associates from any and
all known charges, claims, damages, injury and actions, in law or equity,
which the Released Parties ever had, now have, or may have by reason of any
act, omission, matter, cause or thing through the date of the Company's
execution of this Agreement. With respect to the released claims, the
Released Parties also agree not to initiate, join, or voluntarily
participate in any action or suit in any court or to accept any damages or
other relief from any such proceeding brought by anyone else based on any
act, omission, matter, cause or thing through the date of the Company's
execution of this Agreement.
5. NOTICE AND REVOCATION PERIOD
----------------------------
This document is important. We advise you to review it carefully and
consult any legal or financial advisors you desire, before signing it. If
you agree to the terms of this Agreement, sign in the space below where
your agreement is indicated and return the Agreement to Xx Xxxxxxx, 0000
Xxxxxx Xxxx Xxxxx, Xxxxxx, XX 00000. The benefits identified in this
Agreement are contingent on your agreeing to the release of claims. You
will have twenty-one (21) calendar days from the date you receive this
document to consider whether to sign this Agreement. If you choose to sign
the Agreement before the end of that twenty-one day period, you certify
that you did so voluntarily for your own benefit and not because of any
coercion.
You should also understand that even after you have signed this Agreement,
you have seven (7) calendar days to revoke it. To revoke your acceptance of
this Agreement, Xx Xxxxxxx must receive written notice before the end of
the seven-day period. In the event you revoke or do not accept this
Agreement, you will not be entitled to any of the payments or benefits that
you would be entitled to by virtue of entering into this Agreement.
Additionally, any obligations on behalf of either party under this
Agreement shall be null and void. If you do not revoke this Agreement
within seven (7) days after you sign it, it will be final, binding, and
irrevocable.
6. RETURN OF PROPERTY
------------------
You hereby affirm that within five (5) business days of your signature
below you will return to the Company all documents, records,
customer/client lists, data, or other non-public information that is
recorded in any manner and was furnished to you or produced by you in
connection with your employment, with the exception of documents relating
to compensation or benefits to which you are entitled following the
termination of your employment and those documents necessary for your to
perform the tasks described in paragraph 2, above. You also affirm that
within five (5) business days of your signature below you will have
returned all Company property and equipment, including but not limited to
computers, back-up tapes and laptops, except for such materials as are
necessary for you to perform the tasks described in paragraph 2, above.
Further, you affirm that you will not make any attempts to access any
Company data after your final day of employment, except as necessary to
perform the tasks described in paragraph 2, above. It is agreed that with
the Company's advance approval you can delete any duplicative business
emails and documents in lieu of returning them to the Company.
7. DISPUTE RESOLUTION
------------------
Any future disputes between you and the Company or any of its former,
current or future parents, subsidiaries or affiliates (except claims for
injunctive relief necessary to prevent irreparable harm or for unemployment
compensation) shall be submitted to binding arbitration in San Francisco,
California before one arbitrator. The arbitration shall be by JAMS pursuant
to the Federal Arbitration Act and shall be administered by and conducted
pursuant to the JAMS Employment Arbitration Rules and Procedures. The
decision of the arbitrator shall be final and may be recorded as a judgment
in a court of competent jurisdiction. The prevailing party in arbitration
shall recover reasonable attorneys' fees and costs incurred in connection
with the arbitration.
8. NON-DISPARAGEMENT
-----------------
You agree to refrain from making any derogatory or defamatory remarks or
comments that may disparage the Company, or any officer, employee, attorney
or agent of the Company. The Company likewise agrees to refrain from making
any derogatory or defamatory remarks or comments that may disparage you.
Notwithstanding the above, it is understood that the Company and you may
respond accurately and fully to any question, inquiry or request for
information when required by legal process.
The CEO of the Company will instruct all employees of the Company that the
CEO will be the only person in the Company to respond to any inquiries
regarding you. You and the CEO have agreed to a letter of reference, the
form of which is attached hereto as Exhibit 1. The CEO will send a final
letter of reference to you on the Company's letterhead within five (5)
business days of the effective date of this Agreement. In any employment
reference calls, the CEO will give a reference consistent with this letter
of reference. With respect to statements made to third parties concerning
the end of your employment, the Company and you agree that the following
statements are appropriate: "The Company and Xxxx have mutually agreed that
Xxxx would leave the Company's employment in order to allow him to pursue
his consulting practice and other business opportunities. We have enjoyed a
productive relationship and wish each other well. In addition, after
leaving his employment, Xxxx will continue to consult with and advise the
Company, as he did prior to becoming the Company's CFO."
Except as required by law, the Company will provide you a draft of: (i) any
press release it decides to make regarding your departure, and (ii) the
Form 8-K it plans to file with the SEC to report your departure, and, in
each instance, will ask for your advance comment prior to release or
filing.
9. COOPERATION WITH LEGAL PROCEEDINGS
----------------------------------
You agree to reasonably cooperate with the Company, its subsidiaries and
any affiliated companies (collectively the "Companies") in the defense or
prosecution of any claims or actions now in existence or which may be
brought in the future against or on behalf of any of the Companies, which
relate to events or occurrences that transpired while you were employed by
any of the Companies. Your reasonable cooperation in connection with such
claims or actions shall include, but not be limited to, being available to
meet with counsel to prepare for discovery or trial and to act as a witness
on behalf of any of the Companies. You also agree to reasonably cooperate
with any of the Companies in connection with any investigation or review of
any federal, state, or local regulatory authority as any such investigation
or review relates to events or occurrences that transpired while you were
employed by any of the Companies. You understand that in any legal action,
investigation, or review covered by this paragraph that the Company expects
you to provide only accurate and truthful information or testimony. Unless
precluded by law, the Company will compensate you for your time at an
hourly rate of $135 on a 1099 basis for any such work.
10. NATURE OF AGREEMENT
-------------------
You acknowledge that in signing this Agreement you have relied only on the
promises written in this Agreement, and not on any other promise made by
the Company. You understand that the Company believes that at all times
during your employment and separation from the Company it has treated you
fairly and lawfully and that the Company is offering you this Agreement to
ensure an amicable separation and assist you in making the transition to
other employment. This Agreement contains the complete understanding
between the parties regarding the subject matter herein and supersedes and
replaces any prior agreements between you and the Company, both written and
oral. This Agreement may only be changed in writing and when signed by both
you and the Company. This Agreement will be governed by the laws of the
State of California, regardless of California or any other choice of law
provision.
Very truly yours,
/s/ W. Xxxxxx Xxxxxxx
---------------------
W. Xxxxxx Xxxxxxx
Director
By signing below, I do hereby certify that I understand and accept the terms of
this Separation and Release Agreement.
/s/ Xxxx X. Xxxxxx April 22, 2006
-------------------------------------- --------------
Xxxx X. Xxxxxx Date
