Nothing in connection with the following Separation Agreement and General
Release is agreed until everything is agreed in a writing signed by all parties.
SEPARATION AGREEMENT AND
GENERAL RELEASE
---------------
This SEPARATION AGREEMENT AND GENERAL RELEASE ("Agreement") is entered
into by and between Xxxxxx XxxXxxx ("Employee") and Brightcube, Inc. formerly
known as Photoloft, Inc. (hereinafter "Brightcube" or the "Company").
W I T N E S S E T H:
WHEREAS, Company employed Employee as its President and Chief
Operating Officer from July 2000 until January 19, 2001 ("Separation Date") at
which time he resigned his employment with Brightcube and his position on the
Company's Board of Directors; 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 as follows:
1. That, provided the Agreement becomes effective as set
forth below, the Company will continue to pay Employee his current base
salary and any accrued but unused vacation through, but not after, February
23, 2001, less applicable deductions and withholdings for federal, state
and local government taxes and withholdings, in accordance with the
Company's normal and customary payroll practices.
2. That Employee will continue to remain eligible to
participate in the Company's current medical and dental coverage plans
(including its existing Lifeguard and Delta Dental Plans respectively, for
as long as Company continues to maintain coverage under such plans or, if
the Company elects to change coverage providers, under equivalent health,
dental, eye care and prescription coverage plans for himself and his
dependents) and the Company will continue to pay premiums for such coverage
as currently through, but not after, July 31, 2001. Thereafter, Employee
will be eligible to continue coverage under such plans pursuant to the
provisions of COBRA.
3. That options on 500,000 shares of the Company's common
stock have been granted under the Company's 1999 Stock Option Plan and are
fully vested as of this date with an exercise price of $1 3/8, provided
however, that such underlying stock is and shall be subject to a six-month
lock-up ending July 19, 2001 (the "Lock-Up Period"). Thereafter, Employee
shall have two years to exercise the stock options. The foregoing
notwithstanding, in the event of a sale, merger, change of control, tender
offer or similar transaction during the Lock-Up Period ("Transaction")
resulting in the Company not surviving, and in the event that Employee's
options do not convert automatically in such Transaction into options of
the acquiror of at least an equivalent value, the lock-up shall terminate
immediately and Employee shall be entitled, at his option, to exercise his
options and immediately thereafter tender, sell or exchange the underlying
stock as part of the Transaction.
4. That the Company will issue a press release explaining
that Employee has resigned his employment and position on the Board of
Directors to pursue other interests.
5. That the Company will continue to abide by its obligations
under the Indemnity Agreement entered into by and between Employee and the
Company on November 9, 2000.
6. That the Company will allow Employee to retain the
notebook computer provided to him by the Company, and confirms that
Employee has allowed the Company to remove all Company-related documents,
software, etc. from the Computer and access to the computer to verify that
all such Company-owned information has been deleted. Employee further
represents and warrants that he has not retained any copies of
Company-related documents, software, etc. from the computer.
B. Employee agrees as follows:
1. That his employment with Brightcube has terminated
effective as of the Separation Date, and that he has no right to employment
with Brightcube thereafter.
2. That he has resigned his position on the Company's Board
of Directors as of the Separation Date.
3. That he further understands that all of his employment
benefits from Brightcube ceased upon the Separation Date, except for his
current medical coverage plan which will expire on July 31, 2001, unless
Employee has or does properly elect to extend such coverage under COBRA.
4. That he is signatory to a Brightcube Proprietary
Information and Inventions Assignment Agreement dated November 9, 2000, and
has obligations thereunder following the Separation Date, which he will
honor and abide by. A copy of the Proprietary Information and Inventions
Agreement is attached hereto and incorporated herein by reference.
5. That, in the event that Brightcube commences a rescission
offer, or a similar program, under the Company's 1999 Stock Incentive Plan,
Employee will not accept such an offer or exercise or assert any rights in
connection with said offer. The foregoing notwithstanding, the Company
acknowledges that it does not intend, intentionally or inadvertantly, to
deprive Employee of the potential value of the options. Therefore, and in
the event such rescission program involves or effects, directly or
indirectly, the termination, conversion, substitution or replacement of
options under the current 1999 Plan, Employee's options will automatically
convert to or be replaced by the same number of fully vested options of
equal value in any new, converted, substituted or replacement plan,
provided, however, that Employee and Company agree that under no
circumstances will Company be obligated to make any cash payment to
Employee in connection with any rescission offer and Employee is entitled
to no cash payments therefor.
6. That as of the Separation Date, 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.
C. The parties mutually agree as follows:
1. That the Company (including each and all of its past and
current subsidiaries, predecessors, successors, affiliates, employees,
board members, consultants, shareholders and representatives) on the one
hand and Employee (including his heirs, representatives and assigns) on the
other hand forever fully release and discharge one another, and covenant
not to xxx or otherwise institute or cause to be instituted or in any way
participate in (except at the request of one another) legal or
administrative proceedings against one another with respect to any matter
arising from or related to Employee's employment by the Company or
termination therefrom 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.
2. That each party is waiving any rights it may have had or
now has to pursue any and all remedies available to it under any
employment-related cause of action from the beginning of time through the
date Employee executes this Agreement including, without limitation, claims
of wrongful discharge, emotional distress, defamation, breach of contract,
breach of the covenant of good faith and fair dealing, fraud, 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 Older Workers Benefit Protection Act, the
Americans with Disabilities Act, the Civil Rights Act of 1866, the
California Fair Employment and Housing Act and all other state and federal
laws and regulations relating to employment.
3. That each party understands that this Release of Claims
extinguishes all claims, whether known to it or not. California Civil Code
section 1542 provides that unless it specifically agrees to release claims
it 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."
Each party agrees to waive any rights under section 1542; affirm
its intention to release claims that are both known and unknown to it, and
each hereby releases the other (including affiliates as set forth above),
from all such known and unknown claims.
4. That each party hereby promises and agrees that it will
not disparage or cast in a negative light the other party or its
affiliates.
5. That neither party, except as may be mandated by statutory
or regulatory requirements, will disclose to others the fact of this
settlement or one or more of the terms of the Agreement, except that
Employee may disclose and discuss it with his family, counsel or accountant
to the extent such disclosure is necessary to achieve the purpose for
seeking their counsel, and Company may disclose it to its counsel and its
past and current subsidiaries, affiliates, employees, board members,
consultants, shareholders and representatives on a "need-to-know" basis.
Each party understands 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.
6. That Employee on the one hand and the Company
representative on the other hand has read and understands the foregoing
Separation Agreement and General Release and affixes their respective
signature hereto voluntarily. The Company representative executing this
Agreement on behalf of the Company further warrants that the Company has
been authorized to enter into this Agreement, that (s)he is fully
authorized to execute this Agreement on behalf of the Company and to bind
the Company to its terms.
7. Employee confirms that the waiver he has made and the
terms he has agreed to herein are knowing, conscious and with full
appreciation that he is forever foreclosed from pursuing any of the rights
so waived. He further acknowledges that he has had the opportunity to be
represented in negotiations for the preparation of this Agreement by
counsel of his own choosing, and that he has entered into this Agreement
voluntarily, without coercion, and based upon his own judgment and not in
reliance upon any representations or promises made by the other party,
other than those contained within this Agreement. Each party further agrees
that if any of the facts or matters upon which it now relies in making this
Agreement hereafter prove to be otherwise, this Agreement will nonetheless
remain in full force and effect.
8. Employee acknowledges that he has up to twenty-one days to
consider this Agreement. If Employee has taken less than twenty-one days to
decide whether to execute this Agreement, Employee represents that he has
had sufficient time to consider the Agreement and to consult counsel
regarding this Agreement, and that he does not need additional time.
9. That Employee may revoke this Agreement in writing for a
period of seven days after his execution of the Agreement. Said revocation
must be in writing and must be delivered to the Company no later than the
end of the seventh day after execution. This Agreement shall become
effective, and irrevocable by Employee, on the eighth day after Employee
has executed this Agreement.
D. The parties further agree as follows:
1. That any controversy between the parties hereto arising
out of or involving the construction or application of any terms or conditions
of this Agreement, including fraud in the inducement of this Agreement, or any
agreement referred to herein, will be submitted to and settled by final and
binding arbitration before one (1) arbitrator at a location in Los Angeles,
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.
2. 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.
3. 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.
4. 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.
5. 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.
6. That both parties have participated in the negotiation of this
Agreement and, therefore, no ambiguity in this Agreement shall be construed
against either party.
7. This Agreement may be executed in counterparts and facsimile
signatures of the parties shall have the same effect as original signatures.
8. This Agreement represents the entire agreement between the
parties with respect to the subject matter thereof and supersedes all previous
oral or written agreements or understandings with respect to such subject
matter.
/s/ Xxxxxx XxxXxxx
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Dated: February 6, 0000 Xxxxxx XxxXxxx
/s/ Al Marco
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Brightcube
Dated: February 8, 2001 By its CEO
