SEPARATION AGREEMENT AND
GENERAL RELEASE
---------------
This SEPARATION AGREEMENT AND GENERAL RELEASE ("Agreement") is entered
into by and between Xxx Xxxxxx ("Employee") and Brightcube, Inc. (hereinafter
"Brightcube" or the "Company").
W I T N E S S E T H:
WHEREAS, Employee's active employment with Brightcube will cease
effective January 15, 2001 and his employment will end on February 28, 2001 (the
"Separation Date");
WHEREAS, during the period of January 16, 2001 through, but not after,
February 28, 2001 Employee will be on an unpaid leave of absence and will not
receive benefits of any kind or vesting credit during such leave; and
WHEREAS, the parties desire to set forth the terms and conditions of
Employee's separation from Brightcube and resolve all issues between them;
NOW, THEREFORE, in consideration of the mutual promises contained
herein, and for other good and sufficient consideration, receipt of which is
hereby acknowledged, the parties agree as follows:
A. Brightcube agrees (provided that the Agreement has not been
validly revoked by Employee under Section B.11 of this Agreement) as follows:
1. That it will pay Employee his current base salary and any
accrued but unused vacation through, but not after, January 31, 2001, less
applicable deductions and withholdings for federal, state and local government
taxes and withholdings.
2. That it will forgive Employee's obligation to repay the
Company any of Employee's $25,000.00 pre-paid signing bonuses.
3. That it has paid Employee the entire amount of his fourth
quarter MBO, which equals $12,500.00.
4. That it will reimburse Employee for unbilled expenses upon
submission of receipts and all proper documentation in accordance with Company
policy, provided such documentation is provided upon the execution of this
Agreement. Company will reimburse Employee within five (5) days of the receipt
of this documentation.
5. That the Company forever fully releases and discharges
Employee and covenants not to xxx or otherwise institute or cause to be
instituted or in any way to participate in legal or administrative proceedings
against Employee in any matter, including, without limitation any and all
liabilities, claims, demands, contracts, debts, obligations and causes of action
of every nature, kind and description, in law, equity or otherwise, from the
beginning of time up through the date Employee executes this Agreement, but
excluding claims relating to or arising from actions or omissions by Employee
that constitute willful misconduct or relating to the terms of the Proprietary
Information and Inventions Agreement signed by Employee on September 5, 2000
(hereinafter the "Released Claims Against Employee").
6. Company understands that Section A.5 above pertains to
Released Claims Against Employee, whether known to it or not. California Civil
Code section 1542 provides: "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 this
settlement with the debtor." The Company agrees to waive its rights under
section 1542 and affirms its intention that the Released Claims Against Employee
under Section A.5 of the Agreement includes those Released Claims unknown to it.
B. Employee agrees as follows:
1. That his active employment with Brightcube ceased
effective January 15, 2001.
2. That he will be granted unpaid leave status from January
16, 2001 through, but not after, February 28, 2001 and that he will not be
entitled to receive benefits, including, but not limited to, the vesting of any
stock options or otherwise, during such leave period with the exception of
maintaining current medical benefits with the Lifeguard plan as described on
B.4.
3. That he will not perform any services for Brightcube
during such leave period.
4. That he further understands that all of his employment
benefits from Brightcube ceased January 15, 2001, except for his current medical
coverage plan with LifeGuard which will expire on March 31, 2001.
5. That his employment shall forever terminate upon the
expiration of such leave period on February 28, 2001.
6. That he has been paid for all wages, earned but unused
vacation and other compensation through January 31, 2001. This includes two (2)
weeks of severance pay that Employee would not otherwise have been entitled to,
but for the execution of this Agreement.
7. That he is signatory to a Proprietary Information and
Inventions Assignment Agreement dated September 5, 2000, and has obligations
thereunder following the Separation Date. A copy of the Proprietary Information
and Inventions Agreement is attached and made a part hereof.
2
8. That as of the execution of this Agreement, Employee
represents that he has returned to the Company all papers, files and other
documents and property of the Company and all papers, files and other documents
relating to or obtained in connection with his employment with the Company,
excepting only (i) Employee's personal copies of records relating to his
compensation; (ii) his personal copies of Proprietary Information and Inventions
Assignment Agreement signed by him; and (iii) his copy of this Agreement.
9. To forever fully release and discharge Brightcube,
PhotoLoft, and each and all of their past and current subsidiaries, affiliates,
employees, board members, consultants, and representatives, and covenant not to
xxx or otherwise institute or cause to be instituted or in any way participate
in (except at the request of Brightcube orPhotoLoft) legal or administrative
proceedings against Brightcube or PhotoLoft or their past or current
subsidiaries, affiliates, employees, or agents with respect to any matter
including, but not limited to, any and all liabilities, claims, demands,
contracts, debts, obligations and causes of action of every nature, kind and
description, in law, equity or otherwise, from the beginning of time up through
the date Employee executes this Agreement.
10. That he is waiving any rights he may have had or now has
to pursue any and all remedies available to him under any employment-related
cause of action against Brightcube, PhotoLoft or their past and current
employees, board members, affiliates and agents from the beginning of time
through the date Employee executes this Agreement including, without limitation,
CLAIMS RELATING TO ANY AND ALL STOCK OPTIONS PREVIOUSLY GRANTED, claims of
wrongful discharge, emotional distress, defamation, breach of contract, breach
of the covenant of good faith and fair dealing, violation of the provisions of
the Employee Retirement Income Security Act and any other laws and regulations
relating to employment. Employee further acknowledges and expressly agrees that
he is waiving any and all rights he may have had and now has to pursue any claim
of discrimination including, but not limited to, any claim of discrimination
based on sex, age, race, national origin or on any other basis, under Title VII
of the Civil Rights Act of 1964, as amended, the Equal Pay Act of 1963, the Age
Discrimination in Employment Act of 1967, the Civil Rights Act of 1866 and all
other state and federal laws and regulations relating to employment.
11. That by entering into this Agreement (i) Employee is
waiving any rights or claims he might have under the Age Discrimination in
Employment Act, as amended by the Older Workers Benefit Protection Act; (ii) he
has received consideration for this release; (iii) he has been advised to
consult with an attorney before signing this Agreement, and has done so; and
(iv) he has had the opportunity to evaluate the terms of this Agreement since at
least January 11, 2001, after being informed he had at least twenty-one (21)
days prior to his execution of the Agreement to do so. Employee further
acknowledges that he has seven (7) days from the date he signs this Agreement
within which he can rescind this Agreement and that Brightcube's obligations
under this Agreement, including, without limitation, under Section A, shall not
be enforceable against it until the eighth day after Employee has signed this
Agreement. Employee also understands that this Agreement will not be
enforceable against Brightcube if he rescinds this Agreement within the
seven-day period.
12. That Employee understands that this Release of Claims
extinguishes all claims, whether known to him or not. California Civil Code
section 1542 provides that unless he specifically agrees to release claims he
does not know about, they will not be released by the release provisions in
Section B of this Agreement. Section 1542 states: "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 this settlement with the debtor." Employee agrees to waive
any rights under section 1542; affirm his intention to release claims that are
both known and unknown to him, and he hereby releases Brightcube and PhotoLoft
and their employees, board members, affiliates and agents from all such known
and unknown claims.
3
13. That neither Employee nor the Company will, except as may
be mandated by statutory or regulatory requirements, disclose to others the fact
of this settlement or one or more of the terms of the Agreement, except to their
respective counsel or accountant to the extent such disclosure is necessary to
achieve the purpose for seeking their counsel, or as otherwise required by law.
Employee and Company understand that strict compliance with this Section is a
material consideration for this Agreement and any violation would cause
irreparable harm warranting injunctive relief, without the posting of an
undertaking or bond.
14. That he has read and understands the foregoing Separation
Agreement and General Release and affixes his signature hereto voluntarily.
C. The parties further agree as follows:
1. That the Company will, upon adopting a Stock
Option/Issuance Plan in 2001 and receiving stock holder approval, grant you an
option, which shall be immediately vested and exercisable, to purchase 30,137
------
shares of common stock of the Company, at the per share fair market value at the
time of the grant (the "Option"). The Option will be subject to the terms of
the Stock Option/Issuance Plan 2001(the "Plan"), except that you shall have
three (3) months after effective notice of the Option grant within which to
exercise the Option. "Effective notice of the Option" shall be the tenth (10th)
calendar day after the date the Company mails to you the Notice of Grant and the
Stock Issuance Agreement. The Option will be non-qualified and the Company will
attempt, in good faith, to issue non-restricted stock.
2. Employee hereby promises and agrees that he will not
disparage the Company or any of its current or past officers or board members.
The officers and board members of the Company promise and agree that each of
them will not disparage Employee.
3. That the waiver each has made and the terms each has
agreed to herein are knowing, conscious and with full appreciation that each of
them is forever foreclosed from pursuing any of the rights so waived. The
parties further acknowledge that they have had the opportunity to be represented
in negotiations for the preparation of this Agreement by counsel of their own
choosing, and that they have entered into this Agreement voluntarily, without
coercion, and based upon their own judgment and not in reliance upon any
representations or promises made by the other party or parties or any attorneys,
other than those contained within this Agreement. The parties further agree
that if any of the facts or matters upon which they now rely in making this
Agreement hereafter prove to be otherwise, this Agreement will nonetheless
remain in full force and effect.
4
4. That any controversy between the parties hereto arising
out of or involving the construction or application of any terms or conditions
of this Agreement, or any agreement referred to herein, will be submitted to and
settled by final and binding arbitration at a location in California to be
agreed upon by the parties or, in the absence of agreement, to be selected by
the American Arbitration Association ("AAA") in California in accordance with
its rules. Such arbitration shall be conducted by AAA in accordance with the
rules of AAA then in effect, and judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof. In the
event of any arbitration under the Agreement, the party seeking arbitration will
request a list of nine (9) arbitrators from the AAA. After the parties have
received a list of potential arbitrators, they will make a good faith effort to
agree on the selection of an arbitrator to resolve said dispute. If the parties
are unable to reach an agreement on the selection of the arbitrator on or before
thirty (30) days following receipt of the list of arbitrators, they will toss a
coin and the loser of the coin toss will strike one arbitrator's name, then the
winner of the coin toss will strike one arbitrator's name; the process of
elimination will continue until one arbitrator's name remains. That individual
will then serve as the sole arbitrator. THIS ARBITRATION WILL BE IN LIEU OF ANY
CIVIL ACTION AND THE PARTIES UNDERSTAND AND EXPRESSLY AGREE THAT THEY ARE EACH
WAIVING THEIR RIGHTS TO A JURY TRIAL.
5. That nothing contained in this Agreement shall constitute
or be treated as an admission by Brightcube or Employee of liability, of any
wrongdoing or of any violation of law.
6. That if any provision of this Agreement is found to be
unenforceable, it shall not affect the enforceability of the remaining
provisions and the remaining provisions shall be enforced to the extent
permitted by law.
7. That this Agreement shall bind and benefit Employee's
heirs, executors, administrators, successors, assigns and each of them; it shall
also bind and benefit Brightcube and its respective heirs, executors,
administrators, successors and assigns.
8. That this Agreement shall be construed and interpreted in
accordance with the laws of that State of California. This Agreement shall be
interpreted in accordance with its plain meaning and not for or against either
party.
9. This Agreement may be executed in counterparts and
facsimile signatures of the parties shall have the same effect as original
signatures.
10. This Agreement is the result of negotiation between the
parties, by their counsel, it represents the entire agreement between the
parties with respect to the subject matter thereof, and it supersedes all
previous oral or written agreements or understandings with respect to such
subject matter.
/s/ Xxx Xxxxxx
-----------------------------
Dated: February 19, 2001 Xxx Xxxxxx/Employee
/s/ Al Marco
-----------------------------
Dated: February 19, 2001 Brightcube
5
