Exhibit 10.1
AGREEMENT, RELEASE AND WAIVER
This Agreement is made as of this 2nd day of August, 2001, by and
between ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇▇▇▇▇") 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 ▇▇▇▇▇▇'▇ employment as Chief
Technology Officer with Eprise ceased effective as of July 17, 2001 (the
"Effective Date"). During the "Employment Continuation Period," as defined
hereafter, ▇▇▇▇▇▇ will continue to be paid by the Company, as provided in
Paragraph 2 below, for work related to product development and engineering,
reporting directly to the Chief Executive Officer. ▇▇▇▇▇▇'▇ duties will be
determined from time to time by the Chief Executive Officer, but shall not
require more than 40 hours per week. ▇▇▇▇▇▇ 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 September 1, 2001. ▇▇▇▇▇▇'▇ employment with Eprise shall
terminate at the end of the Employment Continuation Period.
2. Compensation.
Subject to Paragraph 7(e), the Company agrees to pay ▇▇▇▇▇▇ the
following amounts, subject to the following terms and conditions:
(a) The Company will pay ▇▇▇▇▇▇ for his services during the
Employment Continuation Period in accordance with ▇▇▇▇▇▇'▇ 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 ▇▇▇▇▇▇ at his home address provided in Paragraph
14 below.
(b) Upon the conclusion of the Employment Continuation Period,
and provided that ▇▇▇▇▇▇ signs and returns to the Company an updated general
release as provided in Paragraph 9(b), the Company shall continue to pay ▇▇▇▇▇▇
his current base salary for one additional year. The Company will make such
payment in accordance with its regular pay schedule, and will deduct from such
payment any applicable withholding taxes and other customary payroll deductions.
(c) If ▇▇▇▇▇▇ resigns, effective on or before September 1,
2001, as a member of the board of directors of Eprise, Eprise shall pay ▇▇▇▇▇▇,
instead of the compensation described in Paragraph 2(b): a lump sum equivalent
to three months of his current base salary, to be paid on or before September
10, 2001; and a lump sum equivalent to nine months of his current base salary,
to be paid on or before January 1, 2002. The Company will deduct any applicable
taxes from any payments made pursuant to this Paragraph 2(c).
(d) The Company will reimburse ▇▇▇▇▇▇ for attorneys' fees he
incurs in the negotiation of this Agreement, up to a maximum of $1,500.
3. Bonus. ▇▇▇▇▇▇ acknowledges his receipt of all bonuses due him for
services rendered through the Effective Date, including a bonus of $7,120.00,
which was paid to him on July 24, 2001. ▇▇▇▇▇▇ will not be entitled to any
further bonuses 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,
▇▇▇▇▇▇ will continue to be a participant in the Company's health care insurance
program. During this period, ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇. On termination of his service at the end of
the Employment Continuation Period, ▇▇▇▇▇▇ 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, the Company will pay
his health insurance premiums for one year, after which ▇▇▇▇▇▇ will be
responsible for the payment of all premiums for his health insurance for the
remainder of the COBRA period.
5. Other Benefits.
(a) Stock Options. During the Employment Continuation Period,
▇▇▇▇▇▇ 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.
(b) General. All other benefits ▇▇▇▇▇▇ 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 Effective Date). Except as provided in Paragraph
4 and 5(a), ▇▇▇▇▇▇ will not earn, accrue or be entitled to any further benefits
after the Effective Date. ▇▇▇▇▇▇ 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. ▇▇▇▇▇▇ 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. ▇▇▇▇▇▇ represents that he has paid
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in full any 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. ▇▇▇▇▇▇ acknowledges and agrees that he
shall remain bound by the terms of the Non-Disclosure/Non-Competition Agreement
between ▇▇▇▇▇▇ and the Company dated December 17, 1997, 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 ▇▇▇▇▇▇
hereunder, and without limiting the scope of the Other Obligations, ▇▇▇▇▇▇
agrees as follows:
(i) ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ 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
▇▇▇▇▇▇, 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, ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ had any contact as a result of his employment, nor
will ▇▇▇▇▇▇ divert any such business from Eprise.
(iii) During the Employment Continuation Period and
for a period of one year thereafter, ▇▇▇▇▇▇ will not render services, directly
or indirectly, as an employee, 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, ▇▇▇▇▇▇ 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, ▇▇▇▇▇▇ will not directly or indirectly induce
or attempt to induce a customer,
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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. ▇▇▇▇▇▇ 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. ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ to the
following facts: confirmation of ▇▇▇▇▇▇'▇ employment by Eprise, the dates he
began and terminated work at Eprise, his salary, and his job title.
(e) Breach. ▇▇▇▇▇▇ 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, ▇▇▇▇▇▇
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. In addition, ▇▇▇▇▇▇ shall be liable to the Company for any and all
damages suffered by Eprise as a result of such breach or any other material
breach of this Agreement (which damages shall include the Company's reasonable
attorneys' fees incurred in any action to enforce this Agreement). Eprise shall
be liable to ▇▇▇▇▇▇ for any and all damages suffered by ▇▇▇▇▇▇ as a result of a
material breach of this Agreement (which damages shall include ▇▇▇▇▇▇'▇
reasonable attorneys' fees incurred in any action to enforce this Agreement).
▇▇▇▇▇▇ agrees that a breach of Paragraphs 7(a) through 7(d) or of the Other
Obligations may cause damage for which there is no adequate remedy at law and
that therefore Eprise will have the right to injunctive or other equitable
relief in addition to any other relief that may be available.
8. Tax Indemnity. ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ hereby
represents that he shall make payments of such taxes at the times and in the
amounts required by law. In addition, ▇▇▇▇▇▇ hereby agrees to fully indemnify
the Company from the payment of taxes 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
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within 30 calendar days after the later of the date the Company pays the tax, or
▇▇▇▇▇▇ receives notice from the Company of such payment.
9. General Release.
(a) Release by ▇▇▇▇▇▇. In consideration of the obligations
set forth above, ▇▇▇▇▇▇ on his behalf and on behalf of his heirs, executors,
administrators and assigns, hereby fully releases, discharges and covenants not
to ▇▇▇ or file administrative charges against the Company and any of its past,
present, or future affiliates, parents, 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 ▇▇▇▇▇▇'▇ 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 ▇▇▇ or file
administrative charges against ▇▇▇▇▇▇ from and with respect to any and all
claims, 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 or reasonably
should 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. Nothing
in this paragraph shall extinguish, release or discharge any claims by the
Company of breach of the Prior Agreement, except to the extent that the Company
knows or reasonably should know all of the facts and conditions giving rise to
such claims as of the date of this Agreement.
(c) ▇▇▇▇▇▇ to Provide Updated Release. As a condition of
receiving the compensation described in Paragraph 2(b), ▇▇▇▇▇▇ agrees that, on
September 1, 2001, or within ten (10) days thereafter, he will sign and return
to the Company an updated general release that is substantially identical to the
general
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release contained in Paragraph 9(a), except that the updated general release
shall extend to claims arising through the date that ▇▇▇▇▇▇ signs it.
10. 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.
11. Complete Agreement; Amendments. This Agreement and the Prior
Agreement are intended by the parties as a final written expression of their
agreement regarding ▇▇▇▇▇▇'▇ employment or termination of employment with
Eprise, 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.
12. Notice. All notices and correspondence concerning this Agreement,
including the payments described in Paragraph 2 above, shall be sent to ▇▇▇▇▇▇
at the following address:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
All notices and correspondence concerning this Agreement shall be sent to Eprise
at the following address:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President
Eprise Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Hill & ▇▇▇▇▇▇, a Professional Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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.
13. 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.
14. 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, including without limitation any
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successor company to Eprise following any sale of Eprise's assets or stock or
merger or other similar business combination.
15. 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.
16. Governing Law. This Agreement shall be governed by and construed as
a contract in accordance with the laws of the Commonwealth of Massachusetts. In
any dispute arising out of or relating to this Agreement, ▇▇▇▇▇▇ agrees to
submit to the jurisdiction of any state or federal court in Massachusetts.
17. 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.
Executed as an Agreement under seal, as of the date first set forth
above.
Witnessed by: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ /s/ ▇. ▇▇▇▇▇▇
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Print Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
WITNESSED BY: EPRISE CORPORATION
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇
--------------------------------- -----------------------------
Print Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President
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Exhibit A
Non-Disclosure/Non-Competition Agreement