MUTUAL GENERAL RELEASE - (Xxxxxxxx Weisdorn)
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This Mutual General Release ("Release") dated as of September 1, 2000, is
entered into by and between 0XXxxxxxxx.xxx d.b.a. O2 Essential Marketing
Technologies ("Employer"), a California Corporation, and Xxxxxxxx Weisdorn
("Weisdorn"), 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 Weisdorn on August 13, 1996.
B. WHEREAS, effective September 1, 0000, Xxxxxxxx voluntarily
resigned his employment with Employer ("Separation Date").
C. WHEREAS, Employer and Weisdorn 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 Weisdorn agree as follows:
1. RELEASE:
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a. Release by Weisdorn and Period of Revocation. Weisdorn hereby
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fully releases and discharges Employer, including Employer's
affiliated entities, and subsidiaries (past and present) and the
current or former officers, directors, shareholders,
administrators, assigns, agents, 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 he ever had, now
has or may hereafter have, arising from, concerning or pertaining
to Employer's Business and/or the employment relationship between
Employer and Weisdorn from the beginning of time to the date of
this Release. Except as provided below, Weisdorn 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 Weisdorn may have
under the Age Discrimination in Employment Act, as amended. Under
the requirements of the Older Workers' Benefit Protection Act,
Weisdorn has 45 days to consider this Release, while he may
accept or reject it in less time than that. Employer urges
Weisdorn to use as much of the time as necessary to consider this
Release and consult with an attorney in connection therewith.
Weisdorn has 7 days following
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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 Weisdorn opts to revoke this Release,
he must contact Employer's Legal department to advise Employer of
his revocation decision, and Weisdorn must also send a written
notice of such revocation decision to Employer.
b. Release by Employer. Employer hereby fully releases and
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discharges Weisdorn, his heirs, executors, administrators,
successors and assigns, forever, from any and all Claims, which
Employer ever had, now has or may hereafter have, arising from,
concerning or pertaining to Employer's Business and/or the
employment relationship between Employer and Weisdorn from the
beginning of time to the date of this Release.
2. ACKNOWLEDGEMENTS/CONSIDERATION: As consideration for the execution of
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this Release and performance of its terms and conditions, Employer
will provide the following to Weisdorn:
a. Two (2) year severance pay in the gross amount of $300,000. On
the date following the date that this Release becomes effective
and fully in force, Employer shall make a severance payment to
Weisdorn in the gross amount of $150,000, less $30,175 for
applicable withholding taxes. Employer shall pay Weisdorn the
remaining gross amount of $150,000, net of applicable withholding
taxes (and without interest), within three days following
Employer's receipt of proceeds from Employer's next round of
financing obtained from unaffiliated third parties. These
payments shall represent full and complete compensation for all
services rendered by Weisdorn to Employer in connection with
Employer's Business.
b. Pursuant to that certain Non-Qualified Stock Option Agreement
("Option Agreement") dated as of May 30, 2000, between Employer
and Weisdorn, Weisdorn has an option to purchase 100,000 shares
of Employer's stock. Employer hereby agrees that the vesting
requirement for these shares has been waived and are fully
vested. Employer agrees that Weisdorn has 18 months commencing on
the Separation Date in which to exercise his stock options at the
exercise price of $7.70 per share ("Options"), which 18 month
period expires on March 1, 2002.
c. Reimbursement for expenses in the amount of $149.47, for which
Employer has received proper documentation.
d. Weisdorn may retain the black file cabinet and lap top computer
of Employer's currently in his possession; and
e. Until October 15, 2000, Employer will maintain Weisdorn's
existing internet address of XX@0Xxxxxxxxx.xxx.
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Weisdorn shall fully account to Employer for any of Employer's property
currently in Weisdorn's possession or control, and shall return to
Employer any such property within 7 days (except for the lap top
computer and black file cabinet as noted in Paragraph 2(d)
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above).
Weisdorn agrees to cooperate with Employer in connection with winding
down any of Weisdorn's unfinished projects. Weisdorn shall return to
Employer all office keys and identification cards (the cellular
telephone and American Express Card have been returned). Weisdorn shall
promptly submit any outstanding cellular telephone and American Express
bills to Employer with proper documentation and shall immediately
reimburse Employer for any personal expenses incurred thereon.
3. PRIOR AGREEMENTS:
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a. Except as set forth in Sections 3(b) and (c), all rights,
obligations and responsibilities of the parties under the
Management Change Agreement dated May 30, 2000 and any other
agreement between Weisdorn and Employer are hereby terminated in
all respects.
b. All rights, obligations and responsibilities of Weisdorn under
the Employee Non-Disclosure Agreement dated March 17, 2000
between Weisdorn and Employer shall remain in full force and
effect following the Separation Date.
c. All rights, obligations and responsibilities of Weisdorn under
the Option Agreement, as amended pursuant to Section 2(b) hereof,
shall remain in full force and effect following the Separation
Date.
4. RESTRICTIONS ON SALE OF SHARES:
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a. Weisdorn agrees that he will not sell, transfer, hypothecate, or
otherwise dispose of more than 100,000 shares of common stock of
Employer currently owned by Weisdorn or issuable upon exercise of
Options held by Weisdorn (collectively, the "Shares") during any
quarterly period (the first quarterly period to commence on the
Separation Date) without the prior written consent of Employer,
such consent not to be unreasonably withheld. The certificates
representing the Shares will be legended accordingly and such
legend shall be removed at the beginning of each quarterly
period, from the Shares at the rate of 100,000 shares per quarter
on a cumulative basis. Employer will use its best efforts to
facilitate through its Transfer Agent the removal of the
restrictive legend as soon as possible. In the event of a merger
or acquisition of Employer which involves more than 50% of
Employer's issued and outstanding common stock, Employer will
immediately cause the restrictive legend to be removed from the
remaining Shares held by Weisdorn.
b. If required by the managing underwriter or placement agent of any
offering of Employer's securities, Weisdorn agrees to execute a
"lock-up" agreement, pursuant to which Weisdorn will agree not to
sell, transfer, hypothecate, or otherwise dispose of shares of
Employer's common stock owned by Weisdorn or issuable upon
exercise of Options held by Weisdorn, without the prior written
consent of Employer. The number of shares subject to such
agreement and the length of the lock-up period shall be
determined pursuant to good faith negotiations between Weisdorn
and the underwriter or placement agent.
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5. REPRESENTATIONS AND WARRANTIES: The Parties hereby represent, warrant
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and covenant, that: (i) neither has 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) each 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) each
has consulted with his own attorney and executed this Release freely
and voluntarily; (iv) each will cooperate with the other in connection
with timely executing any documentation necessary to effectuate the
terms of this Release; and (v) this Release shall be binding upon each
party and its respective successors and assigns.
6. NO FURTHER PAYMENTS OR OBLIGATIONS: Payment of the sum set forth
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in Paragraph 2 above shall constitute the only sum payable by Employer
to Weisdorn 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 Weisdorn with respect to the
employment relationship or Employer's Business. Except as otherwise
required by law or provided herein, Weisdorn's salary and benefits
will cease as of the Separation Date, and any entitlement he has or
might have under any provided benefit program will cease. As of the
date hereof, Weisdorn waives his right to collect any Workers'
Compensation benefits in connection with Employer.
7. WAIVER: Employer and Weisdorn intend and agree that this Release
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shall 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, Weisdorn acknowledges that Weisdorn
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
executing the release, 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 Weisdorn 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, Weisdorn 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 Weisdorn 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.
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8. REFRAIN FROM COMMENCING LAWSUIT: Employer and Weisdorn 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.
9. PUBLICITY: Weisdorn will take no action or make any statement or
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comment that directly or indirectly disparages the reputation of
Employer or any of its affiliates or any of their directors, officers,
employees or businesses.
10. MISCELLANEOUS: The scope and effect of each party's obligations to
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the other under this Release (collectively, "Obligations") will be as
broad as may be permitted under applicable law, and will be
ineffective to the extent that it purports to restrict either party to
a greater extent than permitted thereunder. The Obligations are
independent of any similar covenants agreed to by the parties and may
be enforced without regard to the enforceability or continued
effectiveness of any such other covenants.
11. ENTIRE AGREEMENT: This Release, which shall be construed in accordance
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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:
XXXXXXXX WEISDORN ("WEISDORN") 0XXXXXXXXX.XXX d/b/a O2
ESSENTIAL MARKETING
TECHNOLOGIES ("EMPLOYER")
By By
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Date: Title :
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Date:
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