Exhibit 10.26
SEPARATION AND MUTUAL GENERAL RELEASE AGREEMENT
This Separation and Mutual General Release Agreement ("Agreement"),
made as of this 26th day of April 2001 ("Effective Date"), by and between
XXXXXXX XXXXXXX, an individual ("Executive"), and PRINTCAFE, INC., a Delaware
corporation ("Company"), is entered into with reference to the following
recitals:
1.0 RECITALS.
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1.1 Executive is a stockholder, member of the Board of
Directors and the Co-Chief Executive Officer of Company.
1.2 Executive and Company are parties to that certain Second
Amended and Restated Employment Agreement ("Employment Agreement"), dated as of
July 14,2000.
1.3 Executive and Company desire to terminate the Employment
Agreement and provide for a separation of relations and mutual general releases
as further set forth below.
2.0 DEFINITIONS.
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2.1 "AGREEMENT" shall mean this Separation and Mutual General
Release Agreement.
2.2 "COMPANY" shall mean printCafe, Inc., a Delaware
corporation.
2.3 "EMPLOYMENT AGREEMENT" shall have the meaning set forth in
Section 1.2.
2.4 "EFFECTIVE DATE" shall mean the date first written above.
2.5 "EXECUTIVE" shall mean Xxxxxxx Xxxxxxx, an individual.
2.6 "THIRD AMENDED AND RESTATED VOTING AGREEMENT" shall mean
that certain Third Amended and Restated Voting Agreement dated as of October 30,
2000, by and between Executive, Company and the other parties listed on the
signature page thereto.
3.0 TERMINATION OF EMPLOYMENT AGREEMENT.
3.1 TERMINATION. The Employment Agreement, except as
specifically set forth herein, is terminated as of the Effective Date. All
payments and benefits due to Executive from Company from and after the Effective
Date shall be determined under this Agreement and neither party shall have any
further obligations to the other under the Employment Agreement. Without
limiting the generality of the foregoing, Executive is specifically waiving any
right to severance under the Employment Agreement in consideration of the fact
that he is a significant stockholder of
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the Company and wishes to avoid any adverse inferences that might otherwise
arise following Executive's separation from the Company. The consideration for
the termination of the Employment Agreement includes the agreements reached
herein, and the Stock Purchase Agreement, Unsecured Promissory Note and letter
agreement between the parties, all of even date herewith.
3.2 RETENTION OF TITLE. Executive shall retain the title of
Co-Chief Executive Officer of Company until the earlier of (i) September 30,
2001, or (ii) such earlier date as Executive, in his sole discretion, notifies
Company in writing of his decision to terminate his Co-Chief Executive role with
Company (the "Termination Date"). Executive's duties will consist of serving
Company on matters relating to business development strategy, product
development strategy and financing strategy. Notwithstanding the retention of
such title, it is acknowledged that Executive shall not be obligated to devote
all of his time or business efforts to the affairs of the Company but shall only
devote whatever time and effort as he deems appropriate in providing such
services to Company from and after the Effective Date. Company shall continue to
indemnify Executive pursuant to the terms of its Amended and Restated Bylaws for
the period Executive serves as Co-Chief Executive Officer.
3.3 DIRECTOR. Executive shall continue to serve as one of the
two management members of Company's Board of Directors pursuant to the terms of
the Third Amended and Restated Voting Agreement. However, Company's "Senior
Officers" (as described in the Voting Agreement), may request Executive's
resignation any time after the Effective Date, and Executive shall retain the
right, in his sole discretion, to so resign at any time after the Effective
Date. In the event that Executive continues to serve as a director of Company
after the Termination Date, Executive shall be entitled to reimbursement for all
reasonable business expenses incurred by Executive on Company's behalf,
including but not limited to reasonable travel and entertainment expenses.
Company agrees to reimburse any reasonable expenses within thirty (30) days of
their submission to Company.
3.4 COMPENSATION AND EXPENSES. Until the Termination Date, (i)
Executive shall be entitled to reimbursement for all reasonable business
expenses incurred by Executive on Company's behalf, including but not limited to
reasonable travel and entertainment expenses, (ii) Company shall provide
Executive with a Company credit card, and (iii) Executive shall also be entitled
to continue to use his current computer, Handspring hand-held computer and cell
phone, and Company shall be responsible for all reasonable charges related to
same. Executive shall be entitled to retain the computer, hand-held computer and
cell phone thereafter. Company agrees to reimburse any reasonable expenses
within thirty (30) days of their submission to Company.
3.5 INSURANCE. Company shall pay for all Executive's insurance
benefits as currently provided to other employees of Company, as described in
Company's manual until the earlier of (i) April 1, 2003, or (ii) such earlier
time as Executive is eligible to be covered under another employer-sponsored
insurance plan. Executive shall be included in the manager's section of the
disability insurance.
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3.6 OPTIONS. Any options to purchase common shares of
Company's stock granted to Executive shall vest in full as of the Termination
Date.
3.7 CONSULTING SERVICES. During the period commencing on
October 1, 2001 and ending on April 1, 2003 (the "Consulting Period"), Executive
shall provide Company with advice and recommendations concerning various matters
respecting the strategic alliances, product development strategy and financing
strategy; provided, however, that Executive shall be required to make himself
available only telephonically to Company and for no more than three (3) hours
per month, on a non-cumulative basis, during the Consulting Period. In the event
Company desires to utilize Executive's services as a consultant more than three
(3) hours in any one month, and Executive is amenable thereto, Company shall
compensate Executive at the rate of Two Hundred Dollars ($200.00) per hour
thereafter. If the Termination Date occurs prior to September 30, 2001, Employee
shall be considered to have taken a bona fide "leave of absence" which was
authorized and approved by Company for purposes of exercising Employee's stock
option grants. Notwithstanding anything to the contrary in this Agreement,
Executive will not be compensated in connection with his role as a director of
Company unless the Board of Directors elects to compensate outside directors.
Executive will be reimbursed for his reasonable business expenses incurred in
connection with consulting services requested to be performed during the
Consulting Period, subject to appropriate documentation of such expenses in
accordance with Company policy. Executive shall keep all Company matters
confidential pursuant to Article IX of the Employment Agreement.
3.8 NON-COMPETITION. Executive shall continue to be bound by
Article VII of the Employment Agreement for a period of two (2) years from and
after the Effective Date.
3.9 SOLICITATION. Executive shall be bound by the provisions
of Article VIII of the Employment Agreement for a period of two (2) years from
and after the Effective Date.
3.10 USE OF CONFIDENTIAL INFORMATION AND INTELLECTUAL
PROPERTY. Executive shall continue to be bound by the provisions of Article IX
of the Employment Agreement.
3.11 INDEMNIFICATION. Company shall continue to maintain
directors and officers' liability insurance in reasonable amounts and cover
Executive under such insurance on an "occurrence" basis through the date that
Executive resigns or is removed as a Director of Company. By way of illustration
only, if such insurance provided by Company is on a "claims made basis," Company
shall continue to list Executive as a named insured on all of such insurance, or
procure "tail" insurance covering Executive through the applicable limitations
periods.
3.12 NON-DISPARAGEMENT. Executive on the one hand, and
Company, or any executive officer or director thereof, on the other, agree that
each shall not (i) directly or indirectly, make or ratify any statement, public
or private, oral or written, that disparages, either professionally or
personally, the other party, the other parry's subsidiaries and affiliates, past
and present, and each of them, as well as its and their trustees, directors,
officers, agents, attorneys, insurers, employees, stockholders, representatives,
assigns, and successors, past and present, and each of them, or (ii) make any
statement or engage in any conduct that has the purpose or effect of disrupting
the
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business of the other party. The parties hereby agree that any statement made in
violation of the foregoing shall constitute and be treated as a material breach
of this Agreement, provided that the only remedy for such breach shall be
monetary damages. This Section 3.12 shall not apply to or in any way limit (x)
statements made by a party in any court, arbitral or governmental proceeding,
(y) disclosures to a third party which has entered into a confidentiality
agreement with the disclosing party, or (z) a party's private consultation with
its attorneys or other professional advisors.
3.13 PRESS RELEASES. Prior to any release or distribution
thereof, Company shall forward to Executive any press release concerning or
otherwise arising out of the separation of Executive from the Company for review
and approval, which approval shall not be unreasonably withheld. Executive shall
have one (1) business day to review and approve on any proposed press release,
or otherwise notify Company of his objections thereto.
3.14 CONFIDENTIALITY. Executive and Company agree that the
terms and conditions of this Agreement shall remain confidential as between the
parties and they shall not (except as required by law, including disclosures
required to stockholders or regulators) disclose them to any other person. This
Section 3.14 shall not apply to or in any way limit (i) statements made by a
party in any court, arbitration or governmental proceeding, (ii) disclosures to
a third party which has entered into a confidentiality agreement with the
disclosing party, or (iii) a party's private consultation with its attorneys or
other professional advisors.
4.0 MUTUAL RELEASE
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4.1 EXECUTIVE RELEASE. Except for those obligations created by
or arising out of this Agreement, the Option Agreement, the Secured Promissory
Note, the Amendment to Pledge Agreement, the Unsecured Promissory Note and side
letter entered into contemporaneously herewith, agreements entered into by
Executive based on his status as a stockholder of Company other than those
executed or prepared by the Company, and the agreements listed on Exhibit "A" or
any other rights Executive may have in his capacity as a stockholder of Company,
Executive on behalf of himself, his descendants, dependents, heirs, executors,
administrators, assigns, and successors, and each of them, hereby covenants not
to xxx and fully releases and discharges Company, its predecessors, successors
and assigns, and their respective past, present and future parents,
subsidiaries, affiliates, trustees, executors, administrators, officers,
directors, owners, associates, heirs, agents, insurers, stockholders, partners,
employees, licensees, representatives, lawyers, consultants, investment bankers,
accountants or any of them, and each of them, hereinafter together and
collectively referred to as "Releasees," with respect to and from any and all
manner of action or actions, cause or causes of action, in law or equity, and
any suits, debts, liens, liabilities, claims, counter-claims, cross-claims,
demands, rights, obligations, damages, losses, costs, expenses, attorneys' fees,
judgments, orders or indemnities, of all and any nature whatsoever, including,
without limitation, payroll after March 15, 2001, whether individual or
derivative, state or federal, known or unknown, fixed or contingent, suspected
or unsuspected, and whether or not concealed or hidden, that against said
Releasees, or any of them, Executive: (i) may have or may now have up to the
date of this Agreement; or (ii) may hereafter have based upon, arising out of,
related to or in any way connected with Executive's service as an officer or
employee of Company, his separation from his position as a member of the Board
of Directors and, except as set forth herein, his position as Co-
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Chief Executive Officer, or his employment by, or status as, an officer of any
Company affiliate, or any other transactions, occurrences, acts or omissions or
any loss, damage or injury whatever, known or unknown, suspected or unsuspected,
resulting from any act or omission by or on the part of said Releasees, or any
of them, committed or omitted prior to the date of this Agreement including,
without limiting the generality of the foregoing, any claim under Title VII of
the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the
Americans with Disabilities Act, the Family and Medical Leave Act of 1993, the
Pennsylvania Human Relations Act, the Pennsylvania Wage Payment and Collection
Act, the Pennsylvania Workmen's Compensation Act or any claim for severance pay,
bonus, sick leave, holiday pay, vacation pay, life insurance, health or medical
insurance or any other fringe benefit, workers' compensation or disability.
4.2 COMPANY RELEASE. Except for those obligations created by
or arising out of this Agreement, and the Option Agreement, the Secured
Promissory Note, the Amendment to Pledge Agreement, the Unsecured Promissory
Note and side letter entered into contemporaneously herewith, agreements entered
into by Executive based on his status as a stockholder of Company and the
agreements listed on Exhibit "A" (except that, as to the Stock Purchase
Agreement executed contemporaneously herewith, the sole exception to the release
granted hereunder concerning the acquisition of the shares of stock of the
Company thereunder shall be strictly limited to the representations and
warranties of Executive under Section 5.2 thereof), Company hereby acknowledges
full and complete satisfaction of and releases and discharges, and covenants not
to xxx, Executive from and with respect to any and all claims, agreements,
obligations, losses, damages, injuries, demands and causes of action, known or
unknown, suspected or unsuspected, arising out of or in any way connected with
Executive's service as a member of the Board of Directors and, except as set
forth herein, his position as Co-Chief Executive Officer or as any officer or
director of any Company subsidiaries, or the separation from such positions, or
any other transactions, occurrences, acts or omissions or any loss, damage or
injury whatever, known or unknown, suspected or unsuspected, resulting from any
act or omission by or on the part of Executive committed or omitted prior to the
date of this Agreement which Company now owns or holds or has at any time
heretofor owned or held as against Executive. Notwithstanding anything else
herein, Company's release in this Section 4.2 does not apply to Company's
payment of approximately $40,000 to Executive related to the reimbursement of
his house sale expenses incurred in connection with his move to Pittsburgh, PA
which has not been formally approved by Company's Board of Directors.
Notwithstanding the foregoing, nothing herein shall give rise to any admission
or implication that such payment, including the amount thereof, was not approved
or authorized by Company's officers or otherwise improper.
4.3 INDEPENDENT ADVICE. Executive and Company hereby
represent, warrant, and acknowledge to each other, that they have received
independent legal advice from their respective attorneys regarding the
advisability of executing this Agreement and giving the releases provided for
herein.
Executive and Company acknowledge that they are aware that they or
their attorney may hereafter discover facts different from or in addition to the
facts which they or their attorney now knows or believes to be true with respect
to the subject matter of this Agreement but that it is their intention hereby to
settle and release fully, finally, absolutely and forever any and all claims,
disputes
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and differences, known or unknown, suspected or unsuspected, which now exist,
may hereafter exist, or heretofore have existed arising from, related to or in
any way connected with the released matters set forth in Section 4.1 and 4.2 of
this Agreement, and without regard to the subsequent discovery or existence of
such different or additional facts except as expressly set forth herein, which
do now exist or heretofore have existed between the parties. In furtherance of
this intention, the releases herein given shall be and remain in effect as full
and complete releases, except as expressly set forth herein, notwithstanding the
discovery of any such additional facts. The parties, and each of them, hereby
further represent, warrant, and acknowledge to the other party, that there is a
risk that, subsequent to the date of this Agreement, they will incur damage or
loss that they deem in some way attributable to the subject matter of this
Agreement, or to the actions prior to the date of this Agreement, as the case
may be, but which are unknown and unanticipated as of the date of this
Agreement, or that damages presently known may become progressive, greater or
more serious than is now known, expected or anticipated, or that facts alleged
in the subject matter of this Agreement are found to be different from the facts
now believed by them to be true. The parties hereby expressly accept such risks
and agree that this Agreement is and will remain effective notwithstanding such
risks, if they occur.
5.0 MISCELLANEOUS
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5.1 GOVERNING LAW. It is agreed that this Agreement shall be
governed by, construed, and enforced in accordance with the laws of the
Commonwealth of Pennsylvania, other than the conflict of laws provisions
thereof. If any provision of this Agreement is deemed unreasonable by a court of
competent jurisdiction, the parties agree that said court shall have the power
to reform the terms of this Agreement in order to satisfy the intent of the
parties hereto.
5.2 ARBITRATION. Any and all disputes arising under or related
to this Agreement shall be adjudicated by mandatory and binding arbitration in
accordance with the rules of the American Arbitration Association governing
employment disputes.
5.3 ENTIRE AGREEMENT. This Agreement shall constitute the
entire agreement between Executive and Company and shall supersede all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof, including without limitation, the
Employment Agreement and all earlier versions thereof.
5.4 MODIFICATION OF AGREEMENT. Any modification of this
Agreement or additional obligation assumed by either party in connection with
this Agreement shall be binding only if evidenced in writing signed by each
party or an authorized representative of each party.
5.5 NO WAIVER. The failure of either party to this Agreement
to insist upon the performance of any of the terms and conditions of this
Agreement, or the waiver of any breach of any of the terms and conditions of
this Agreement, shall not be construed as thereafter waiving any such terms and
conditions, but the same shall continue and remain in full force and effect as
if no such forbearance or waiver had occurred.
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5.6 ATTORNEYS FEES. In the event that any action is filed in
relation to this Agreement, the unsuccessful party in the action shall pay to
the successful party, in addition to all sums that either party may be called
on to pay, a reasonable sum for the successful party's fees. Company also agrees
to pay Executive's legal fees incurred in the negotiation and documentation of
this Agreement.
5.7 COUNTERPARTS. This Agreement may be executed in
counterparts, and each counterpart, when executed, shall have the efficacy of a
signed original. Photographic copies of such signed counterparts may be used in
lieu of the originals for any purpose.
5.8 FURTHER COOPERATION. All parties agree to cooperate fully
and to execute any and all supplementary documents and to take all additional
actions that may be necessary or appropriate to give full force to the basic
force and intent of this Agreement and which are not inconsistent with its
terms.
6.0 NOTICES. For purposes hereof, delivery of written notice shall be
complete upon personal delivery, or upon mailing if mailed with proper postage
paid by United States registered or certified mail, addressed to the party at
the address set forth below, or to such other mailing address as the parties
hereto may designate by written notice given in accordance with this Section
6.0. Notice may also be given upon receipt of electronic facsimile, provided
that any facsimile notice shall only be deemed received if (a) the transmission
thereof is confirmed, and (b) facsimile notice is followed by written notice,
made either by (i) personal delivery thereof, or (ii) via deposit in certified
mail return receipt requested, postage prepaid, within three (3) business days
following the facsimile notice. Notices shall be addressed to the parties as
follows:
Executive: Xxxxxxx Xxxxxxx
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
Company: printCafe, Inc.
The Crane Building, Fifth Floor
00 Xxxxxx-Xxxxxx xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: President
Fax: (000) 000-0000
Any party may change the address to which to send notices by notifying
the other party of such change of address in writing in accordance with this
Section 6.0.
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IN WITNESS WHEREOF, each party to this Agreement has caused it to be
executed as of the date set forth above.
"EXECUTIVE"
/s/ XXXXXXX XXXXXXX
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XXXXXXX XXXXXXX
"COMPANY"
PRINTCAFE, INC.,
a Delaware corporation
By: /s/ Xxxx Xxxx
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Xxxx Xxxx, President
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EXHIBIT "A"
OUTSTANDING AGREEMENTS
1. Fourth Amended and Restated Investors Rights Agreement
2. Third Amended and Restated Voting Agreement
3. Third Amended and Restated Right of First Refusal and Co-Sale Agreement
4. Pledge Agreement dated as of November 8,1999, as amended.
5. Secured Promissory Note dated as of November 8,1999.
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