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Exhibit 99
AGREEMENT, RELEASE AND WAIVER
This Agreement is made as of this 29th day of March, 2001, by and between
Xxxxxx Xxxxxxxxxx ("Xxxxxxxxxx") and Eprise Corporation (alternatively "Eprise"
or the "Company").
In consideration of the mutual promises hereinafter set forth, the parties
agree as follows:
1. TERMINATION. The parties agree that Xxxxxxxxxx'x employment as
Vice-President, Sales with Eprise ceased effective as of February 26, 2001 (the
"Effective Date"). During the "Employment Continuation Period," as defined
hereafter, Xxxxxxxxxx will continue to be paid by the Company, as provided in
Paragraph 2 below, for sales-related work, reporting directly to the Chief
Executive Officer or to his designee. Xxxxxxxxxx'x duties will be determined
from time to time by the Chief Executive Officer or his designee, but shall not
require more than 40 hours per week. Xxxxxxxxxx shall not report to or contact
any other officer, director or employee of Eprise with respect to his services.
The "Employment Continuation Period" means the period beginning on the Effective
Date and ending on April 30, 2001. Xxxxxxxxxx'x employment with Eprise shall
terminate at the end of the Employment Continuation Period.
2. COMPENSATION.
(a) Subject to Paragraph 7(e), the Company will pay Xxxxxxxxxx for his
services during the Employment Continuation Period in accordance with
Xxxxxxxxxx'x base salary on the Effective Date, such payments to be made from
time to time in accordance with the Company's regular pay schedule. The Company
will deduct from each such payment any applicable withholding taxes and other
customary payroll deductions. Each payment will be mailed to Xxxxxxxxxx at his
home address provided in Paragraph 14 below.
(b) Upon the conclusion of the Employment Continuation Period, the Company
shall deliver to Xxxxxxxxxx a one-time payment of $75,000. The Company will
deduct from such payment any applicable withholding taxes and other customary
payroll deductions.
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3. BONUS; SALES COMMISSION. Xxxxxxxxxx acknowledges his receipt of all
bonuses due him for services rendered through the Effective Date other than the
commission specifically described in this paragraph. The Company shall pay to
Xxxxxxxxxx a sales commission of 0.183% of Company revenues in the first quarter
of 2001. On the Agreement Effective Date (as defined in paragraph 11 below), the
Company shall deliver to Xxxxxxxxxx such commission for the months of January
2001 and February 2001. The Company shall deliver such commission for March 2001
on the second pay period date in April 2001. Other than as specified in this
Xxxxxxxxx 0, Xxxxxxxxxx will not be entitled to any further bonuses or
commissions for services rendered or to be rendered prior to the Effective Date
or during the Employment Continuation Period.
4. HEALTH CARE INSURANCE. During the Employment Continuation Period,
Xxxxxxxxxx will continue to be a participant in the Company's health care
insurance program. During this period, Xxxxxxxxxx will have the same level of
coverage that he is receiving under the Company's health care insurance program
as of the date of this Agreement, and the Company will pay all premiums for this
insurance, unless there is a change in the Company's health care insurer or a
health care insurer's eligibility rules or other change in the Company's health
care insurance program applicable generally to Company employees, in which case
such changes will also apply to Xxxxxxxxxx. On termination of his service at the
end of the Employment Continuation Period, Xxxxxxxxxx will be entitled to extend
his Company health insurance benefits under and subject to the terms of COBRA,
provided that if he elects to accept this COBRA benefit, he will be responsible
for the payment of all premiums for his health insurance for the entire COBRA
period.
5. OTHER BENEFITS.
(a) STOCK OPTIONS.
(i) During the Employment Continuation Period, Xxxxxxxxxx will be
entitled to continue to vest in and exercise options to purchase Company
stock granted to him prior to the Effective Date, in accordance with the
provisions of the stock option plans and agreements applicable to him and
the terms of said options. Notwithstanding the foregoing, Xxxxxxxxxx
acknowledges and agrees that, upon commencement of the
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Employment Continuation Period, the "Change in Control" provisions set
forth in his option grants (as such term is defined in the Company's
Amended and Restated 1997 Stock Option Plan) terminated and he will not be
entitled to any acceleration of vesting in the event of a "Change in
Control" of the Company during the Employment Continuation Period. No
further options will be granted to Xxxxxxxxxx.
(ii) As specified on Schedule 1 hereto, on the Agreement Effective
Date, the Company shall repurchase from Xxxxxxxxxx, under the terms of the
Company's Amended and Restated 1997 Stock Option Plan and the stock option
grants from the Company to Xxxxxxxxxx dated May 12, 1999 and September 15,
1999, as heretofore amended (the "Grants"), all shares of Company stock
purchased by Xxxxxxxxxx pursuant to stock options that will not have become
vested to Xxxxxxxxxx, as provided in sub-paragraph (i) above, by the end of
the Employment Continuation Period.
(iii) Xxxxxxxxxx and the Company hereby acknowledge and agree that the
Grants are hereby amended to the extent provided in this Paragraph 5(a).
(b) GENERAL. All other benefits Xxxxxxxxxx has earned through the
Effective Date will be accrued and paid in accordance with the terms of the
applicable benefit plans, including accrued but unused vacation and paid time
off (which shall be paid on the Agreement Effective Date). Except as provided in
Paragraphs 4 and 5(a), Xxxxxxxxxx will not earn, accrue or be entitled to any
further benefits after the Effective Date. Xxxxxxxxxx expressly agrees that,
except as expressly provided under the terms of this Agreement, the Company owes
him no further salary, bonus pay, severance pay, vacation pay, sick pay,
automobile or transportation pay or reimbursements, expense reimbursements, or
any other form of remuneration or benefit whatsoever.
6. RETURN OF COMPANY PROPERTY. Xxxxxxxxxx represents that he has returned
to the Company all Company property that was in his possession or control,
including, without limitation, any equipment (including, without limitation,
computers, printers, pagers and cell phones) provided by the Company, Company
credit cards, any building passes, and any Company documents and other
materials. Xxxxxxxxxx represents that he has paid in full any
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amounts he owed to the Company, and acknowledges that the Company has reimbursed
him for all bona fide business expenses paid by him.
7. OBLIGATIONS TO THE COMPANY.
(a) PRIOR AGREEMENT. Xxxxxxxxxx acknowledges and agrees that he shall
remain bound by the terms of the Non-Disclosure/Non-Competition Agreement
between Xxxxxxxxxx and the Company dated April 29, 1999, a copy of which is
attached hereto as EXHIBIT A (the "Prior Agreement"), regarding his obligations
of confidentiality, non-solicitation and similar obligations to the Company (the
"Other Obligations").
(b) NON-COMPETITION; NON-SOLICITATION. In consideration of the
compensation and other benefits and accommodations being provided to Xxxxxxxxxx
hereunder, and without limiting the scope of the Other Obligations, Xxxxxxxxxx
agrees as follows:
(i) Xxxxxxxxxx understands that the term "Competing Product"
means any product, process, or service of any person or organization other than
Eprise, in existence or under development of which Xxxxxxxxxx is aware, (A)
which is identical to, substantially the same as, or an adequate substitute for
any product, process, or service of Eprise in existence or under development of
which Xxxxxxxxxx is aware, and (B) which is (or could reasonably be anticipated
to be) marketed or distributed in such manner and in such a geographic area as
to actually compete with such product, process or service of Eprise; and the
term "Competing Organization" means any person or organization, including
Xxxxxxxxxx, engaged in, or about to become engaged in, research on or the
acquisition, development, production, distribution, marketing, or providing of a
Competing Product.
(ii) During the Employment Continuation Period and for a period
of one year thereafter, Xxxxxxxxxx will not directly or indirectly solicit or
accept business relating in any manner to Competing Products or to products,
processes or services of Eprise from any of the customers or accounts of Eprise
with which Xxxxxxxxxx had any contact as a result of his employment, nor will
Xxxxxxxxxx divert any such business from Eprise.
(iii) During the Employment Continuation Period and for a period
of one year thereafter, Xxxxxxxxxx will not render services, directly or
indirectly, as an employee,
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consultant or otherwise, to any Competing Organization in connection with
research on or the acquisition, development, production, distribution,
marketing, or providing of any Competing Product.
(iv) During the Employment Continuation Period and for a period
of one year thereafter, Xxxxxxxxxx will not recruit or otherwise solicit or
induce employees or consultants of Eprise or its present or future affiliates to
terminate their employment with, or otherwise cease their relationship with
Eprise or any such affiliates.
(v) During the Employment Continuation Period and for a period
of one year thereafter, Xxxxxxxxxx will not directly or indirectly induce or
attempt to induce a customer, prospective customer, supplier, agent, vendor,
contractor, subcontractor, developer, employee or consultant to terminate or not
enter into any contract with Eprise or its present or future affiliates.
(c) CONFIDENTIALITY. Xxxxxxxxxx understands and agrees that the terms
and conditions of this Agreement are to be maintained in the strictest of
confidence and shall not be disclosed by him to any third party other than his
wife and attorney (subject to such persons' agreement to hold such information
in confidence), except as permitted under Paragraph 8(e) or as otherwise
required by law or regulation. Eprise agrees to instruct its management
personnel who have been directly involved in the negotiation of this Agreement
that the terms and conditions hereof are to be maintained in the strictest of
confidence and are not to be disclosed to any third party other than Eprise's
counsel and independent accountant, except as permitted under Paragraph 7(d) or
as otherwise required by law or regulation.
(d) NON-DISPARAGEMENT. Xxxxxxxxxx covenants and agrees that, from and
after the date of this Agreement, he will not make or assist others to make
statements that are critical of Eprise, injure Eprise's reputation or are
otherwise adverse to or inconsistent with Eprise's best interests, whether in
private or in public. Eprise agrees to instruct its management personnel to
restrict all external discussion of employment and termination of Xxxxxxxxxx to
the language contained in the Company's press release dated February 26, 2001,
attached to this Agreement as Exhibit B. Notwithstanding the foregoing sentence,
appropriate employees of Eprise may
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disclose the following facts: confirmation of Xxxxxxxxxx'x employment by Eprise,
the dates he began and terminated work at Eprise, his salary, and his job title.
(e) BREACH. Xxxxxxxxxx acknowledges that the provisions set forth in
Paragraphs 7(a) through 7(d) above are significant, material factors in Eprise's
decision to enter into this Agreement. In the event of a material breach of any
of those provisions or of any of the Other Obligations, the Company will send
Xxxxxxxxxx a written explanation detailing the circumstances of such breach and
the provision or Other Obligations that have been so breached. Xxxxxxxxxx will
be given five (5) days from Xxxxxxxxxx'x receipt of such notice of breach to
respond to such breach and to the extent that such breach is curable, an
opportunity to cure it. If he fails to respond to or cure such breach to the
reasonable satisfaction of the Company, Xxxxxxxxxx shall forfeit his right to
receive any unpaid payments described in Paragraph 2 of this Agreement and
Eprise's obligation to make such payments shall thereafter cease, and he shall
forfeit the accommodations provided to him under the first sentence of Section
5(a). In addition, Xxxxxxxxxx shall be liable to the Company for any and all
damages suffered by Eprise as a result of such breach (which damages shall
include the Company's reasonable attorneys' fees incurred in any action to
enforce this Agreement). Each party agrees that a breach of Paragraphs 7(a)
through 7(d) or (in Xxxxxxxxxx'x case) of the Other Obligations may cause damage
for which there is no adequate remedy at law and that therefore the other party
will have the right to injunctive or other equitable relief in addition to any
other relief that may be available.
8. TAX INDEMNITY. Xxxxxxxxxx agrees that he will be exclusively liable
for the payment of all federal, state and local taxes, if any, which may be due
as a result of the consideration paid as set forth in this Agreement, except for
any withholding that the Company is required by law to pay; and Xxxxxxxxxx
hereby represents that he shall make payments of such taxes at the times and in
the amounts required by law. In addition, Xxxxxxxxxx hereby agrees to fully
indemnify the Company from the payment of taxes, including interest and
penalties thereon, that are required of it by any government agency at any time
as the result of payment of the consideration set forth in this Agreement,
except for withholding that the Company was obligated to but did not pay. Such
indemnification shall be paid within 30 calendar days after the later of the
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date the Company pays the tax, interest or penalty, or Xxxxxxxxxx receives
notice from the Company of such payment.
9. GENERAL RELEASE.
(a) RELEASE BY XXXXXXXXXX. In consideration of the obligations set
forth above, Xxxxxxxxxx on his behalf and on behalf of his heirs, executors,
administrators and assigns, hereby fully releases, discharges and covenants not
to xxx or file administrative charges against the Company and any of its
affiliates, subsidiaries, successors and assigns, as well as its and their past,
present and future directors, officers, trustees, agents, representatives,
attorneys and employees (hereinafter individually and collectively referred to
as "Releasees") from and with respect to any and all claims, demands,
administrative charges, liabilities, actions, causes of action and suits
whatsoever of every name and nature, in law or at equity, including but not
limited to any claims under federal, state and local laws which prohibit
discrimination (including without limitation, claims of discrimination based on
race, religion, national origin, sex, disability or handicap and sexual
orientation) and any claims with respect to breach of contract (express and/or
implied); wrongful termination, intentional or negligent infliction of emotional
distress, interference with contractual or advantageous business relations, loss
of consortium, invasion of privacy, defamation, and any other tort; payment of
wages; debts; costs and expenses; attorneys' fees and other damages; whether
known or unknown, suspected or unsuspected, and whether or not concealed or
hidden, which he now has, may at any time have, or may have had against said
Releasees, or any of them, based on facts or conditions occurring or arising
prior to and through the date of this Agreement including, without limitation,
claims arising out of or in any way related to Xxxxxxxxxx'x employment
relationship with the Company and/or the change in or eventual termination of
such employment relationship as described herein, but not including any claims
of breach of the express terms of this Agreement by the Company.
(b) RELEASE BY THE COMPANY. In consideration of the obligations set
forth above, the Company and any of its affiliates, subsidiaries, successors and
assigns (hereinafter, collectively referred to as "Releasors") hereby fully
release, discharge and covenant not to xxx or file administrative charges
against Xxxxxxxxxx from and with respect to any and all claims,
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demands, charges, liabilities, actions, causes of action and suits whatsoever of
every name and nature, in law or at equity, based solely on those facts and/or
conditions of which the Releasors have knowledge as of the date of the execution
of this Agreement, but excluding any claims of breach of the express terms of
this Agreement or the Prior Agreement by Xxxxxxxxxx.
10. AGE DISCRIMINATION RELEASE. In consideration of the Company's
agreement to make the payments set forth in Paragraph 2 above, to which
Xxxxxxxxxx expressly acknowledges he was not otherwise entitled, Xxxxxxxxxx, on
his behalf and on behalf of his heirs, executors, administrators and assigns,
hereby fully releases, discharges and covenants not to xxx or file
administrative charges against the Company and any of its affiliates,
subsidiaries, successors and assigns, as well as its and their past, present and
future directors, officers, trustees, agents, representatives, attorneys and
employees for any claims that he might have had in the absence of this Agreement
for employment discrimination based on age under the federal law known as the
Age Discrimination in Employment Act, 29 X.X.X.xx. 621, et seq., and comparable
state laws prohibiting employment discrimination on the basis of age, including,
without limitation, M.G.L. c. 151B,ss. 4, and M.G.L. c. 93,ss.103. By executing
this Agreement, Xxxxxxxxxx does not waive rights or claims that may arise based
on facts or conditions occurring after the date of this Agreement.
11. AGREEMENT EFFECTIVE DATE; REVOCATION PERIOD. Prior to executing this
Agreement, Xxxxxxxxxx was advised in writing to consult with an attorney about
the terms of this Agreement (and has so consulted) and was given a period of at
least 21 days within which to consider this Agreement. For a period of seven (7)
days following the date this Agreement is executed, Xxxxxxxxxx may revoke this
Agreement by delivering to the Company within that period of time a written
statement to that effect; provided, that the Company must receive such written
notice no later than 5:00 p.m. on the seventh calendar day following execution
of this Agreement. This Agreement shall not become effective or enforceable
until the day after the seven-day revocation period has expired (the "Agreement
Effective Date").
12. NO ADMISSIONS. This Agreement is not intended to and does not
constitute an admission of liability by either party, and shall not be used as
evidence of liability or wrongdoing on the part of any party hereto.
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13. COMPLETE AGREEMENT; AMENDMENTS. This Agreement and the Prior Agreement
are intended by the parties as a final written expression of their agreement,
supersede any prior written expression of their intent regarding the terms of
this Agreement, and set forth their entire agreement. This Agreement may not be
amended or modified except by a writing signed by both of the parties hereto.
14. NOTICE. All notices and correspondence concerning this Agreement,
including the payments described in Paragraph 2 above, shall be sent to
Xxxxxxxxxx at the following address:
Xxxxxx Xxxxxxxxxx
00 Xxxxxx Xxx
Xxxxxxx, XX 00000
All notices and correspondence concerning this Agreement shall be sent to Eprise
at the following address:
Xxxxxx X. Xxxxxxxx, President
Eprise Corporation
000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000
With a copy to:
Xxxxx X. Xxxxx, Esq.
Hill & Xxxxxx, a Professional Corporation
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
All notices provided hereunder shall be deemed to be received: the same day, if
sent by hand or fax before 5:00 p.m.; the next day, if sent by overnight courier
service; and two (2) business days after being deposited in the U.S. mail,
postage prepaid.
15. PARAGRAPH HEADINGS. The paragraph headings throughout this Agreement
are for convenience and reference only, and the words contained therein shall in
no way be held to explain, modify, amplify or aid in the interpretation,
construction, or meaning of the provisions of this Agreement.
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16. PROVISIONS BINDING, ETC. This Agreement shall be binding upon and
shall inure to the benefit of all the parties hereto and their respective heirs,
successors and assigns.
17. COOPERATION. The parties agree to deliver promptly and to execute
promptly any documents reasonably necessary to the consummation of the
transactions contemplated herein, and to do such further acts and things as may
be necessary to carry out the intent and purposes of this Agreement.
18. GOVERNING LAW. This Agreement shall be governed by and construed as a
contract in accordance with the laws of the Commonwealth of Massachusetts.
19. INVALIDITY OF PARTICULAR PROVISIONS. If any term or provision of this
Agreement, or the application thereof to any person or circumstance, shall, to
any extent, be invalid or unenforceable, the remainder of this Agreement, or the
application of such term or provision to persons or circumstances other than
those to which it is held invalid or unenforceable, shall not be affected
thereby, and each term and provision of this Agreement shall be valid and be
enforced to the fullest extent permitted by law.
[signature page immediately follows]
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Executed as an Agreement under seal, as of the date first set forth above.
Witnessed by: XXXXXX XXXXXXXXXX
/s/ Xxxxxx Xxxxxxxxxx
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Print Name: Xxxxxx Xxxxxxxxxx
Witnessed by: EPRISE CORPORATION
/s/ Xxxxxx Xxxxxx By: /s/ X. X. Xxxxxxxx
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Print Name: Xxxxxx X. Xxxxxxxx, President
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ENDORSEMENT
I have read the foregoing Agreement, Release and Waiver (the "Agreement")
and understand that it applies to and covers all claims heretofore arising,
whether or not known or suspected to exist at the present time, out of my
employment with Eprise Corporation (the "Company"), including any rights and
claims that I may have under federal and state law on any grounds whatsoever. In
particular, I acknowledge that I have read Paragraphs 10 and 11 of the Agreement
and that I understand and agree with each and all of their representations. I
was given the opportunity to consider this Agreement for at least 21 days before
signing it, but have voluntarily chosen to sign the Agreement at this time,
sooner than 21 days from its delivery to me, because my attorney and I have been
consulting with the Company and its counsel concerning the issues that are to be
resolved by the execution of this Agreement, and I believe that I have given
ample consideration, with the assistance of my attorney, to the issues resolved
by the Agreement and my rights under the law.
I further acknowledge that I have executed this Agreement voluntarily and
with full understanding of its consequences and without being coerced in any
way.
I declare under the penalty of perjury that the foregoing is true and
correct.
/s/ Xxxxxx Xxxxxxxxxx
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Xxxxxx Xxxxxxxxxx
Dated: March 29, 2001
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Schedule 1
Repurchase of Unvested Option Stock
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Grant No. of Exercise No. of Currently Currently Will vest Total to be Total to be Repurchase Total
Date Options Price Options Vested Unvested during vested as unvested as price per repurchase
Granted Exercised Employment of end of of end of exercised price
Continuation Employment Employment and unvested
Period Continuation Continuation share
Period Period
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5/12/99 250,980 $0.459 250,980 62,745 188,235 62,745 125,490 125,490 $0.459 $57,599.91
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9/15/99 78,431 $0.6375 78,431 19,608 58,823 0 19,608 58,823 $0.6375 $37,499.66
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4/18/00 3,921 $10.125 0 0 3,921 0 0 3,921 NA NA
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7/24/00 2,500 $17.75 0 0 2,500 0 0 2,500 NA NA
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1/10/01 20,000 $1.344 0 0 20,000 0 0 20,000 NA
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TOTAL REPURCHASE PRICE $95,099.57
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EXHIBIT A
NON-DISCLOSURE/NON-COMPETITION AGREEMENT
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EXHIBIT B
PRESS RELEASE DATED FEBRUARY 26, 2001
Eprise Announces Sales Management Change
FRAMINGHAM, Mass.--(BUSINESS WIRE)--Feb. 26, 2001--Eprise Corporation
(Nasdaq:EPRS), the only provider of Strategic Content Management(TM) solutions,
today announced that by mutual agreement, Xxxxxx Xxxxxxxxxx, vice president of
sales, has stepped down from his position to pursue other interests. Xx.
Xxxxxxxxxx will remain with the company through a brief transition period during
which time the company expects to announce a new appointment to this position.
In the interim, Xxx Xxxxxxxx, president and chief executive officer, will assume
sales management responsibilities, and all positions that previously reported to
Xx. Xxxxxxxxxx will now report to Xx. Xxxxxxxx.
[General company information omitted]
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