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Exhibit 10.1
EMPLOYMENT SEPARATION AGREEMENT
This Employment Separation Agreement ("Agreement") is made as of this 1st day of
June, 2000 ("Effective Date"), by and between FutureOne, Inc., a Nevada
corporation, with offices at 0000 Xxxx Xxxxxxxxx Xxxx, Xxxxx X000, Xxxxxxx,
Xxxxxxx 00000 (the "Company" or "FutureOne"), and Xxxx X. Xxxx, an individual,
located at 0000 Xxxx Xxxxx xxx Xxxxx, Xxxxxxx, Xxxxxxx 00000 ("Hald" or
"Employee") (collectively the "Parties").
WHEREAS, on or about January 1, 2000 Hald was appointed to the Board of
Directors of the Company (the "Board") and has served in such capacity since
that time. In conjunction therewith, effective January 1, 2000, Hald entered
into an employment agreement with the Company to serve as its Executive Chairman
of the Board for a term of six months, under the terms and conditions as stated
therein.
WHEREAS, subsequently, the employment agreement was amended to extend the term
an additional six months through December 31, 2000. Collectively the original
employment agreement and amendments thereto shall be referred to as the
"Employment Agreement".
WHEREAS, the Parties now mutually agree that Hald can separate from the
employment of FutureOne, terminate his Employment Agreement with the Company and
voluntarily resign as Chairman of the Board for the Company. The Company
recognizes that during the Agreement Hald has successfully contributed to and
fulfilled his obligations to the Company.
WHEREAS, the Company and Hald have entered into this Agreement to fully and
finally resolve any and all potential issues, claims or demands as between them
relating in any manner to the Employment Agreement, Hald's separation from
employment and resignation as Chairman of the Board and to discharge and release
one another from any liability, claims, demands, damages or losses related to
same.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
conditions herein, the execution of this Agreement, and the faithful performance
of same by each of the Parties hereto, FutureOne and Hald hereby agree as
follows:
1. RECITALS PART OF AGREEMENT. The above recitals are hereby made a part of the
Agreement.
2. RESIGNATION AS CHAIRMAN OF BOARD AND SEPARATION FROM EMPLOYMENT. Hald agrees
to resign as Chairman of the Board of the Company effective June 1, 2000 and the
Company accepts such resignation. Hald shall sign the letter attached hereto as
Exhibit A. The Parties agree further that the Effective Date herein of this
Agreement shall also be the effective date of Hald's separation from employment
of the Company ("Separation Date").
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3. COMPENSATION TO EMPLOYEE. In consideration of the terms and conditions of
this Agreement, including Sections 4 and 5 herein, the Company agrees to
perform the following:
(a) Pay Employee (or his estate or any beneficiaries) any Base Salary that
has accrued but has not been paid as of the Separation Date herein;
(b) Pay Employee (or his estate or any beneficiaries) a lump sum payment of
$70,000 (less statutory deductions) representing what Employee's Base
Salary would have been through the term of Hald's Employment Agreement.
("Lump Sum Payment"). The Lump Sum Payment shall be made to Hald by the
Company in accordance with the terms of a Convertible Promissory Note,
a copy of which is attached hereto as Exhibit B.
(c) Provide to Employee (or his estate or any beneficiaries) any accrued
benefits required to be provided by the terms of any FutureOne
sponsored benefit plans or programs, together with any benefits
required to be paid or provided in the event of Employee's death or
disability under applicable laws.
(d) Promptly grant to Employee warrants in the Company equal to the amount
he would have received if he was employed through the entire term of
his Employment Agreement.
(e) Pay Employee a "Transaction Bonus" as defined in Section 4(D) of Hald's
Employment Agreement, provided that the Company closes a "Transaction"
as defined in Section 4(D) of the Employment Agreement before January
1, 2001.
The Parties hereto agree that there are no expenses due Employee under Section 4
(G) of Hald's Employment Agreement as of the Separation Date herein. The Parties
further agree that, as of the Separation Date herein, no "discretionary bonus"
within the meaning of Section 6(4) of the Employment Agreement has been
authorized by the Board of Directors. Accordingly, the Parties mutually agree no
such "discretionary bonus" has been accrued, earned or due the Employee.
4. TERMINATION OF AGREEMENTS. The Parties hereto agree and confirm that, except
for this Agreement, any and all other agreements, written or oral, including but
not limited to the Employment Agreement of Hald, are terminated and shall be of
no further force or effect. The Parties agree that none of the terms, conditions
or obligations, if any, survive termination, except the following provisions of
the Employment Agreement shall survive: Sections 6, and 12.
Except as otherwise stated, this Agreement supersedes any of the terms of such
agreements, and all parties expressly release each other. All parties expressly
release each other from any continuing rights, duties and/or obligations under
any agreements, including the Employment Agreement.
5. MUTUAL RELEASE AND DISCHARGE. In consideration of the terms and conditions of
this Agreement, including the both parties' obligations under this Agreement,
each of the parties agree that such party or any person acting by, through or
under such party, releases and forever discharges the other party, its
respective predecessors, successors, partners, affiliated and related
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entities, officers, directors, assigns, agents, employees, representatives, and
all persons, firms, associations and/or corporations connected with them,
including without limitation, their insurers and attorneys, (hereinafter
collectively referred to as "Released Parties"), and covenants and agrees not to
institute any action or actions, causes or causes of action in state or federal
court, or any state or federal governmental agency, based upon or arising by
reason of any damage, loss, or in any way related to Employee's employment with
any of the Released Parties, Employee's actions (or inactions) as an employee
of, or in respect of, the Company, the separation from said employment and/or
Hald's resignation from the Board of Directors as Chairman of the Board of the
Company ("Released Matters").
The foregoing Released Matters includes, not by way of limitation, all claims
which could have been raised under common law, including retaliatory discharge
and breach of contract, or statute, including, without limitation, the Age
Discrimination in Employment Act of 1967, 42 U.S.C. Sections 621-634, as amended
by the Older Workers Benefit Protection Act of 1990, Title VII of the Civil
Rights Act of 1964, 42 U.S.C. Sections 2000e et. seq. and the Employee
Retirement Income Security Act of 1974, 29 U.S.C. Sections 1001 et. seq. or any
other federal or state law; except that this Release is not intended to cover
any claim arising from computational or clerical errors in the calculation of
the compensatory benefits provided to Employee, or benefit to which Employee may
be entitled from any plan or other benefits to which Employee may be entitled
under Section 3 of this Agreement. However this Release, in no fashion
whatsoever, is intended to release the Company from its obligations to Hald
under Article IX-Indemnification of Directors an Officers, Second Amendment to
the ByLaws of FutureOne, Inc, a Nevada corporation. The Company will not amend
the Articles of Incorporation in a manner that would adversely affect Hald's
indemnification rights thereunder.
Each party covenants and agree to forever refrain from instituting, pursuing, or
in any way whatsoever aiding any claim, demand, action or cause of action or
other matter released and discharged herein by the other party arising out of or
in any way related to the Released Matters and the rights to recovery for any
damages or compensation awarded as a result of any lawsuit brought by any third
party or governmental agency on the other party's behalf.
Each party further agree to indemnify all Released Parties from any and all
loss, liability, damages, claims, suits, judgments, attorneys' fees and other
costs and expenses of whatsoever kind or individually, they may sustain or incur
as a result of or in connection with the Released Matters released and
discharged by under this Agreement. Each party warrants that such party has not
filed any lawsuits, charges, complaints, petitions, or accusatory pleadings
against any of the Released Parties with any governmental agency or in any
court, based upon, arising out of or related in any way to any event or events
occurring prior to the signing of this Release, including, without limitation,
Hald's employment with any of the Released Parties, Hald's actions (or
inactions) as an employee of, or in respect of, the Company, the separation from
said employment and/or Hald's resignation from the Board of Directors as
Chairman of the Board.
Nothing contained herein or set forth in this Section 5 shall constitute a
release of the obligations of the Parties to comply with the terms and
conditions of this Agreement.
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6. AGREEMENT NOT AN ADMISSION OF LIABILITY. It is understood and agreed by the
Parties that the execution of this Agreement and the consideration therefore
shall not to be construed as an admission of liability on the part of any Party.
7. DISCOVERY OF ADDITIONAL FACTS. Each Party hereto acknowledges that they are
aware that they may hereafter discover facts in addition to or different from
those that they now know or believe to be true with respect to the subject
matter of this Agreement, but that it is their intention hereby fully, finally
and forever to settle and release all claims, demands, damages and losses
relating to the Released Matters, known or unknown, suspected or unsuspected,
that now exists, may exist, or previously existed between them and that in
furtherance of such intention this Release shall be and remain in effect as a
full and complete general release of the Released Matters notwithstanding the
discovery or existence of any such additional or different facts.
8. NO ASSIGNMENT. FutureOne and Employee warrant and represent to each other
that they have not heretofore assigned or transferred, or purported to assign or
transfer, to any person or entity not a party hereto, any of the Released
Matters or any part or portion thereof. Each Party to this Agreement shall
indemnify and hold the other harmless from and against any claim, demand,
damage, liability, obligation, cost, expense, lien, action, or cause of action,
including costs and reasonable attorney's fees, arising out of or in connection
with any breach of said warranty and representation.
9. CONFIDENTIALITY OF AGREEMENT. The Parties agree that the contents and terms
of this Agreement shall remain confidential and shall not be disclosed or
communicated to any person, including, but not limited to, the media or other
public or private forum, except that: (1) the Parties may communicate said
content and terms to their attorneys, finance departments or financial advisors
and others under their control who have a "need to know" such information; (2)
tax preparers and taxing authorities; and (3) the Parties may disclose said
content and terms as otherwise required by law.
9. ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding of the Parties hereto with respect to the subject matter hereof
and supersedes and terminates all prior agreements and understandings. This
Agreement may not be amended or modified unless otherwise agreed to in writing
and signed by the Parties.
10. GOVERNING LAW. This Agreement is to be governed by and construed in
accordance with the laws of the state of Arizona, excluding conflicts of law
provisions. The prevailing party in any action arising out of this Agreement
shall be entitled to recover its reasonable attorneys' fees and costs in
addition to any other relief to which it may be entitled.
11. VOLUNTARY AGREEMENT. This Agreement is freely and voluntarily entered into
by each respective Party. The Parties in executing this Agreement do not rely on
any inducements, promises or representations made by any of the Parties or their
representatives or attorneys, except and unless expressly contained herein.
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12. SEVERABILITY. Should any portion of this Agreement be declared void or
unenforceable, such portion shall be considered independent and severable from
the remainder, the validity of which shall remain unaffected.
13. COUNTERPARTS. This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original and all of which taken together shall
be deemed one and the same instrument.
14. NO ADVERSE CONSTRUCTION. Each Party has cooperated in the drafting and
preparation of this Agreement. In any construction to be made of this Agreement,
the same shall not be construed against any Party.
IN WITNESS WHEREOF, the Parties hereto have entered into this Agreement as of
the Effective Date herein.
FUTUREONE, INC. XXXX X. XXXX
By: /s/ Xxxx X. Xxxx By: /s/ Xxxx X. Xxxx
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Print Name: Xxxx X. Xxxx Print Name: Xxxx X. Xxxx
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Title: President
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EXHIBIT A
June 1, 2000
Xx. Xxxx Xxxx
Director, President and CEO
FutureOne, Inc.
0000 Xxxx Xxxxxxxxx Xxxx, Xxxxx X000
Xxxxxxx, Xxxxxxx 00000
Re: Resignation
Dear Xxxx:
This letter is to advise you that effective as of June 1, 2000, I have resigned
my office as a member of the Board of Directors of FutureOne, Inc. and as
Chairman of the Board for the Company.
I have greatly enjoyed working with you and the team.
Sincerely,
Xxxx X. Xxxx
/ah
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EXHIBIT B
THIS PROMISSORY NOTE AND THE UNDERLYING COMMON STOCK ("COMMON STOCK") OF
FUTUREONE, INC. (THE "COMPANY") HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, AND ANY REGULATIONS PROMULGATED THEREUNDER
(COLLECTIVELY, THE "SECURITIES ACT") OR WITH THE SECURITIES AUTHORITIES OF ANY
STATE UNDER ANY STATE SECURITIES LAWS AND ANY REGULATIONS PROMULGATED THEREUNDER
(COLLECTIVELY, "STATE SECURITIES LAWS"). AS A CONSEQUENCE, NEITHER THIS
PROMISSORY NOTE NOR COMMON STOCK MAY BE SOLD, TRANSFERRED, ASSIGNED, MORTGAGED,
PLEDGED, LIENED, HYPOTHECATED OR OTHERWISE ENCUMBERED OR DISPOSED OF
(COLLECTIVELY, A "TRANSFER") EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT
REQUIRED.
CONVERTIBLE
PROMISSORY NOTE
Phoenix, AZ $70,000
June 1, 2000
FOR VALUE RECEIVED, FUTUREONE, INC., a Nevada corporation with an office at 0000
Xxxx Xxxxxxxxx Xxxx, Xxxxx X-000, Xxxxxxx, Xxxxxxx 00000-0000 (including its
successors and assigns), (the "Maker"), hereby promises to pay to the order of
Xxxx X. Xxxx, with an office at 0000 Xxxx Xxxxx xxx Xxxxx, Xxxxxxx, Xxxxxxx
00000 (the "Lender"), the principal sum of Seventy Thousand Dollars ($70,000)
(the "Principal Amount"), with interest on any unpaid balance of such amount, at
the rate of Fourteen Percent (14%) per annum, from the date of the advance
thereof at the rate of interest specified herein, in lawful money of the United
States of America and in immediately available funds in accordance with the
terms hereof. The unpaid Principal Amount of this Convertible Promissory Note,
together with all accrued and unpaid interest hereunder, shall be due and
payable on the Maturity Date (as defined below), unless this Convertible
Promissory Note is prepaid or converted in accordance with the terms hereof.
This Convertible Promissory Note evidences a loan (the "Loan") made by Lender to
Borrower in the Principal Amount.
Lender may, at his option at any time, convert all or part of the indebtedness
evidenced by this Note, including accrued interest, into the Common Stock of
FutureOne, Inc. (a "FutureOne
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Common Stock Conversion"). The number of shares of Common Stock issuable upon a
FutureOne Common Stock Conversion shall be determined as follows: Divide the
Principal Amount and accrued interest to be converted by the Conversion Price in
effect as of the date of such FutureOne Common Stock Conversion. The Conversion
Price shall be the per share price as mutually agreed upon by the Lender and
Maker, based upon the Maker's most recent major funding event immediately prior
to the FutureOne Common Stock Conversion.
To effect any FutureOne Common Stock Conversion, Lender shall (i) provide Maker
with ten (10) business days advance written notice to Maker specifying the date
and amount of such conversion and the name in which the Common Stock shall be
issued (if the name is other than that of Lender), (ii) furnish any appropriate
endorsements and transfer documents reasonably requested by Maker, (iii) pay any
transfer or similar tax if required and (iv) deliver a certificate to Maker in
which Lender certifies that (a) Lender is an "accredited investor" as defined in
the Securities Act, (b) Lender acknowledges that the Common Stock to be issued
to Lender has not been registered under the Securities Act or any State
Securities Laws and (c) Lender is acquiring the Common Stock to be issued to
Lender for investment and not with a view to the resale, subdivision,
distribution or fractionalization thereof and that Lender agrees that such
Common Stock may not be sold, transferred, assigned, mortgaged, pledged, liened,
hypothecated or otherwise encumbered or disposed of (collectively, a "transfer")
except pursuant to an effective Registration Statement under the Securities Act
of 1933, as amended, or an opinion of counsel satisfactory to Maker to the
effect that such registration is not required.
If there is not a FutureOne Common Stock Conversion under this Note, payment of
the Loan shall be due on the earlier of September 1, 2000 or 5 days after the
date the Maker closes one or more public offerings, private placement of debt
and/or equity, sale and/or merger of the Maker in the aggregate amount of no
less than $1,500,000 ("Maturity Date").
This Note is unsecured and may be pre-paid by the Maker, in whole or in part, at
any time without penalty. Maker shall provide 5 days prior written notice of its
intent to prepay during which time Lender may still exercise a FutureOne Common
Stock Conversion. Any payments that are received on this Note shall be first
applied toward accrued interest, other non-principal payments due under the Note
and/or the Separation Agreement and lastly toward the reduction of principal.
Should default occur in the payment of the Loan by the Maturity Date hereunder
or should the Company fail to perform any of its obligations under the
Employment Separation Agreement between the Lender and Maker and if said default
or failure to perform remains uncured for a period of 10 consecutive days after
written demand by the Lender thereof, then the whole sum of principal and
accrued interest due thereunder may become immediately due and payable, at the
option of the Lender.
If suit is brought to recover amounts due under the terms of this Note, the
Maker hereby promises to pay reasonable attorney's fees and court costs.
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The Maker and any endorsers of this Note waive diligence, demand, presentment
for payment, notice of dishonor and protest, and consent to the extension of
time for payment of this Note without notice.
This Note is made in Arizona, and the execution, delivery and performance hereof
shall be governed by and construed in accordance with the laws of the State of
Arizona.
FUTUREONE, INC.
a Nevada corporation
By: ___________________
Title: __________________
ACCEPTED, ACKNOWLEDGED AND AGREED TO AS OF THE _____ DAY OF JUNE, 2000
BY:
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NAME:
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