MUTUAL GENERAL RELEASE - (Xxxxxx X. Xxxxxxxxx)
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This Mutual General Release ("Release") dated as of May 25, 2000, is entered
into by and between 0Xxxxxxxxx.xxx ("Employer"), a California Corporation, and
Xxxxxx X. Xxxxxxxxx ("Employee"), with reference to the following facts:
A. WHEREAS, Employer, a developer and distributor of proprietary 3-D
Internet e-commerce display technology ("Employer's Business"),
engaged Employee on June 24, 1999 ("Hire Date"), as President,
Chief Operating Officer and Chief Financial Officer (provided
that Employee did not officially occupy the position of President
for Employer until July 23, 1999) for Employer pursuant to that
certain letter agreement dated as of May 19, 1999, between
Employer and Employee.
B. WHEREAS, effective May 25, 2000, Employee resigned his employment
with Employer ("Termination Date").
C. WHEREAS, Employee has received a final payroll check comprised of
1 accrued vacation day in the gross amount of $769.23, and 9
workdays in the gross amount of $6923.08.
D. WHEREAS, Employee is in possession of a laptop computer, cellular
phone, and Corporate American Express Card No. #0000-000000-00000
("Amex"), owned by Employer.
E. WHEREAS, pursuant to that certain Non-Qualified Stock Option
Agreement ("Option Agreement") dated as of June 24, 1999, between
Employer and Employee, Employee has a 60-day period commencing on
the Termination Date in which to exercise stock options for
75,000 shares of Employer's stock at the exercise price of $11.00
per share ("Options"), which 60-day period expires on July 24,
2000 ("Option Exercise Period").
F. WHEREAS, Employer and Employee desire to discharge one another
with respect to any further obligations owed to each other.
WHEREFORE, FOR GOOD AND VALUABLE CONSIDERATION, the sufficiency of which is
hereby acknowledged, and in further consideration of the mutual covenants and
agreements contained herein, Employer and Employee agree as follows:
1. RELEASE: Employer and Employee hereby fully release and discharge one
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another, including Employer's affiliated entities, and subsidiaries
(past and present) and the current or former officers, directors,
shareholders, administrators, assigns, agents, employees, attorneys
and all successors in interest, forever, from any and all
obligations, losses, damages, debts, agreements, liabilities,
demands, costs, expenses, claims and causes of action, known or
unknown, fixed or contingent, of any kind or nature whatsoever
("Claims"), which they ever had, now have or may hereafter have,
arising from, concerning or pertaining to Employer's Business and/or
the employment relationship between Employer and Employee from the
beginning of time to the date of this Release. Except as provided
below, Employee shall not have any further involvement in Employer's
Business.
Without limiting the generality of the foregoing, this Release
includes any claim under Title VII of the Civil Rights Act of 1964,
as amended, and, except as expressly provided otherwise herein, any
claim for: severance pay; bonus; sick leave; workers' compensation;
holiday pay; vacation pay; life insurance; health, dental or
disability benefits; or any other fringe benefit. This Release
applies to any rights or claims Employee may have under the Age
Discrimination in Employment Act, as amended. Under the requirements
of the Older Workers' Benefit Protection Act, Employee has 45 days to
consider this Release, while he may accept or reject it in less time
than that. Employer urges Employee to use as much of the time as
necessary to consider this Release
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and consult with an attorney in connection therewith. Employee has 7
days following signature of this Release to revoke it, and this
Release shall not become effective or enforceable until expiration of
this 7-day revocation period. If Employee opts to revoke this
Release, he must contact Xxx Xxxxxx Weisdorn, Esq. to advise her of
his revocation decision, and Employee must also send a written notice
of such revocation decision to Employer.
2. ACKNOWLEDGEMENTS/CONSIDERATION: As consideration for the execution
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of this Release and performance of its terms and conditions, Employer
will provide the following to Employee: (a) An immediate cash payment
in the amount of $100,000; and (b) Employer will recommend to its
Board of Directors that Employee's Option Exercise Period be extended
from 60 days to nine (9) months from the Termination Date (i.e., an
extended Option Period expiring on February 24, 2001) ("Extended
Option Exercise Period").
Employee has agreed to accept and hereby acknowledges receipt of
Employer checks in the sum of $ 4766.34 (i.e., $6923.08 less
applicable withholding) and $65,550 (i.e., 100,000 less applicable
withholding of $34,450) as severance and settlement payment including
full and complete compensation for all services rendered by Employee
to Employer in connection with Employer's Business.
Employee agrees to cooperate with Employer in connection with winding
down any of Employee's unfinished projects. Employee shall fully
account to Employer for any of Employer's property currently in
Employee's possession or control, and shall return to Employer any
such property within 7 days. Employee shall promptly submit any
outstanding Amex xxxxxxxx to Employer with proper documentation and
shall immediately reimburse Employer for any personal expenses
incurred thereon.
3. REPRESENTATIONS AND WARRANTIES: Employee hereby represents, warrants
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and covenants, that: (i) Employee has not heretofore assigned or
transferred or purported to assign or transfer to anyone any claim,
demand, action or cause of action based upon or arising out of or
pertaining to any of the matters or things released herein; (ii)
Employee has the sole, full and lawful authority to release and
forever discharge any such claims, demands, actions or causes of
action based upon or arising out of or pertaining to any of the
matters or things released herein; (iii) Employee has consulted with
his own attorney and executed this Release freely and voluntarily;
(iv) Employee will cooperate with Employer in connection with timely
executing any documentation necessary to effectuate the terms of this
Release; and (v) this Release shall be binding upon Employee and his
respective successors and assigns.
4. NO FURTHER PAYMENTS OR OBLIGATIONS: Payment of the sum set
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forth in Paragraph 2 above shall constitute the only sum payable by
Employer to Employee with respect to this Release, Employer's
Business or any Claim. Except for the obligations set forth in this
Release, Employer shall have no further obligations to Employee with
respect to the employment relationship or Employer's Business. Except
as otherwise required by law or provided herein, Employee's salary
and benefits will cease as of the Termination Date, and any
entitlement he has or might have under any provided benefit program
will cease. Nothing herein is intended to limit Employee's right to
receive any vested retirement benefit to which he was entitled on the
Termination Date. As of the date hereof, Employee waives his right to
collect any Workers' Compensation benefits in connection with
Employer.
5. WAIVER: Employer and Employee intend and agree that this Release
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shall forth in be effective as a full and final accord and
satisfaction and general release of and from all Claims released and
discharged hereunder. In furtherance thereof, Employee acknowledges
that Employee is familiar with Section 1542 of the Civil Code of the
State of California, which states 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
ex ecuting the release,
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which if known by him must have materially affected his
settlement with the debtor."
The parties are executing this Release voluntarily, and each waives
any and all rights Employee has or may have under California Civil
Code Section 1542, any successor section to it, and/or any other
statute or common law principle of similar effect. In connection with
this waiver and the Release, Employee acknowledges that he is aware
that he may discover claims presently unknown or unsuspected or facts
in addition to or different from those which he now knows or believes
to be true with respect to the Claims released and discharged
hereunder. Nevertheless, Employer and Employee intend by this
Release, and with and upon the advise of such parties' own
independently selected counsel, to release fully, finally and forever
all Claims released and discharged hereunder. In furtherance of such
intention, the releases set forth in this Release shall be and remain
in effect as full and complete releases of the Claims released and
discharged hereunder notwithstanding the discovery or existence of
any such additional or different claims or facts relevant hereto.
6. REFRAIN FROM COMMENCING LAWSUIT: Employer and Employee agree to
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forever refrain from commencing, instituting or prosecuting any
lawsuit, action or other proceeding against the other party, based
on, arising out of or in connection with any obligation, loss,
damage, debt, agreement, liability, demand, cost expense, claim or
cause of action that is released and discharged hereunder.
7. NO ADMISSION OF LIABILITY: Employer and Employee hereby expressly
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recognize and agree that the terms and conditions of this Release
constitute a settlement of disputed matters and that neither the
offer nor the acceptance of the conditions of this Release represent
an admission of liability or responsibility on the part of any party
hereto.
8. PUBLICITY: Employee shall not make or induce others to make any
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negative, critical or adverse remarks, whether oral or written,
concerning Employer or Employer's Business, nor shall Employee
comment publicly or authorize, circulate, publish or otherwise
disseminate any news stories, articles or other publicity of any kind
relating to the employment relationship, Employer's Business and/or
the terms of this Release, except as required by law. If Employee is
compelled by law to disclose any matter covered by this Paragraph,
Employee shall provide Employer with a copy of any valid subpoena
within 2 business days of Employee's receipt thereof and shall notify
Employer of the content of any testimony or information to be
provided and shall promptly provide Employer with copies of all
documents to be produced.
9. MISCELLANEOUS: The scope and effect of Employee's obligations to
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Employer under this Release (collectively, "Employee Obligations")
will be as broad as may be permitted under applicable law, and will
be ineffective to the extent that it purports to restrict Employee to
a greater extent than permitted thereunder. The Employee Obligations
are independent of any similar covenants agreed to by Employee and
Employer and may be enforced without regard to the enforceability or
continued effectiveness of any such other covenants.
10. ENTIRE AGREEMENT: This Release, which shall be construed in
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accordance with the laws of the State of California, constitutes the
entire agreement and understanding between the parties in connection
with the above matters and supersedes all prior agreements, whether
written or oral, in connection therewith.
ACCEPTED AND AGREED:
XXXXXX X. XXXXXXXXX ("EMPLOYEE") 0XXXXXXXXX.XXX ("EMPLOYER")
By By
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Date Title Date
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