**Exhibit 10.44.2**

 

SEPARATION AGREEMENT AND MUTUAL RELEASE

 

This Separation Agreement and Mutual Release (this “Agreement andRelease”) is entered into effective as of January 22, 2004 (the “EffectiveDate”) by and between Michael J. Rusert (“Mr. Rusert”) and ArtemisInternational Solutions Corporation (the “Company”).

 

BACKGROUND

 

WHEREAS, Mr. Rusert and the Company are parties to that certainEmployment Agreement dated as of January 25, 2002, as amended by thatcertain First Amendment to Employment Agreement dated as of October 1,2002 (as so amended, the “Employment Agreement”), pursuant to which Mr.Rusert has served as the President and Chief Executive Officer of the Companyfrom January 25, 2002 through January 16, 2004;

 

WHEREAS,  Mr. Rusert has resignedas an officer, director and employee of the Company and from any similarpositions that he may hold with any of the Company’s subsidiaries effective asof the close of business on January 16, 2004;

 

WHEREAS, the Company and Mr. Rusert desire to enter into this Agreementand Release to set forth certain agreements between them related to thetermination of Mr. Rusert’s relationships with the Company.

 

NOW,  THEREFORE, inconsideration of the covenants contained herein and other good and valuableconsideration, the receipt and sufficiency of which are hereby acknowledged,the Company and Mr. Rusert hereby agree as follows:

 

AGREEMENT

 

Section 1.   Resignation.  Mr. Rusert hereby confirms that, effectiveas of 5:00 p.m., PST, on January 16, 2004, he voluntarily resigned from(i) the offices of President and Chief Executive Officer of the Company, (ii)any other offices that he may have held at such time with the Company or anysubsidiary or other affiliate of the Company, (iii) any other positions that hemay have held at such time with the Company or any subsidiary or otheraffiliate of the Company, and (iv) the Board of Directors of the Company andthe Board of Directors of any subsidiary or other affiliate of the Company ofwhich he may have been a member at such time, if any.

 

Section 2.   Transition Assistance/Cooperation.  In order to facilitate a smooth and orderlytransition to a new President and Chief Executive Officer, Mr. Rusert shall, tothe extent reasonably requested by Company and provided it does notunreasonably interfere with his other employment (including self-employment) orefforts to secure such employment, provide consulting services and otherwisemake himself available to assist the Company in effecting such transition on an“as requested, as needed” basis through February 20, 2004, for no morethan twenty to twenty-five hours per week.  All services provided by Mr. Rusert pursuant to this Section 2shall be at no cost to Mr. Rusert.   Mr.Rusert further agrees to cooperate in good faith with the Company in connectionwith any defense, prosecution or investigation regarding any actual orpotential litigation or administrative proceeding in which the Company may beinvolved as a party or non-party provided and to the extent that it does notunreasonably interfere with his other employment (including self-employment) orefforts to secure such employment.

 

Section 3.   Payments by the Company.

 

(a)          Asseverance pay and in consideration of Mr. Rusert’s agreement to providetransition assistance as provided in Section 2 and in considerationof Mr. Rusert releasing claims as provided in Section 7, theCompany shall pay to Mr. Rusert an amount equal to the annual base salaryprovided for in the Employment Agreement (i.e., $285,000).  Such amount shall be paid as salarycontinuation payments over the one-year period from January 17, 2004through January 16, 2005 (and not in a lump sum) in the same periodicinstallments as his base salary has been paid prior to the date hereof inaccordance with the Company’s standard payroll schedule.  Such payments shall be subject to anyrequired withholding for federal, state or local taxes or other amountsrequired by law to be withheld.

 

(b)         Inaddition to the payments provided for in Section 3(a), the Companywill provide Mr. Rusert with the benefits set forth in Section 2 of theADEA Release referred to in Section 7, subject to Mr. Rusert’scompliance with the conditions set forth in such Section 2; provided,however, that the Company will have no further obligation to providesuch benefits (i) at any time after the expiration of 21 days from the date Mr.Rusert was first given the ADEA Release for review and consideration unless Mr.Rusert signs the ADEA Release and returns it to the Company prior to such timeor (ii) if Mr. Rusert signs the ADEA Release prior to the expiration of such 21day

 

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period buttimely revokes the ADEA Release as permitted thereby.

 

(c)          Inaddition to the payments referenced above, the Company shall, no later thanseven (7) days after the Effective Date, pay to Mr. Rusert, in lawful currencyof the United States of America and in lump sum: (i) $6,000.00 as and forearned and unpaid Incentive Compensation due and owing to Mr. Rusert underSection 2 of the Employment Agreement and (ii) $14,250.00 as and foraccrued and unpaid vacation pay due and owing to Mr. Rusert, in each casesubject to the Company’s normal payroll withholding practices.

 

(d)         Mr.Rusert acknowledges and agrees that other than the payments provided for inthis Section 3 and as provided in the ADEA Release:  (i) he has received all compensationrequired to be paid under the Employment Agreement, including payment of anyaccrued vacation pay required to be paid thereunder or under any Company policyapplicable to him, and (ii) he is not entitled to any further payments,severance, benefits or reimbursement of any amounts from the Company, whetherunder the Employment Agreement or otherwise, except such benefits as may berequired by law (e.g., COBRA benefits) or under any Company retirement plans.

 

(e)          TheCompany and Mr. Rusert acknowledge and agree that, effective as of the close ofbusiness on January 16, 2004, all of their respective rights andobligations under the Employment Agreement shall be deemed to have terminatedand to be of no further force or effect; provided, however, thatthe provisions of Section 5 (Non-Solicitation) of the EmploymentAgreement, which is set forth and restated in Section 12(b) hereof,shall not terminate and shall remain in full force and effect.

 

Section 4.   Stock Options.   The parties acknowledge that Mr. Rusertholds certain stock options granted to him by the Company pursuant to theEmployment Agreement (the “Stock Options”).  The provisions of the agreements evidencing the Stock Options (orany related stock option plan) notwithstanding, Stock Options to purchase250,000 shares of Common Stock at an exercise price of $1.50 per share shall bedeemed vested as of the January 17, 2004 and shall remain exercisablethrough January 16, 2008.   Theparties agree that Mr. Rusert is not required to purchase all shares authorizedunder the Stock Options at the time of exercise but rather may exercise theStock Options granted hereunder from time-to-time at any time during theexercise period in such amounts as Mr. Rusert may, in his discretion, electuntil such time as all shares of the Company Common Stock represented by saidStock Options have been purchased.  Anyother stock options held by Mr. Rusert shall be deemed terminated as of thedate of this Agreement and shall not be or become exercisable and Mr. Rusertshall not have any right to receive any further grants of stock options fromthe Company.   If, after the EffectiveDate, the Common Stock of the Company is changed by reason of a stock split,reverse stock split, stock dividend or recapitalization, or converted into orexchanged for other securities as a result of a merger, consolidation orreorganization (a “Recapitalization”), the numbers of shares subject to theStock Options granted hereunder shall be adjusted or converted by the samefactor or into the same securities as a like number of outstanding shares ofCommon Stock of the Company would have been adjusted as a result of suchRecapitalization.

 

Section 5.   No Confidentiality.  Recognizing the Company’s legal obligationto make a public announcement of Mr. Rusert’s resignation and to file a copy ofthis Agreement and Release with the Securities and Exchange Commission, neitherparty has any expectation of confidentiality with respect to the termshereof.  The Company shall have theright to file a copy of this Agreement with the Securities and ExchangeCommission and to make a public announcement of Mr. Rusert’s resignation.

 

Section 6.   Mutual Non-Disparagement.

 

(a)          Mr.Rusert shall not: (i) make any public or private comments disparaging ordenigrating the Company or any of its any subsidiaries, or any of theirrespective affiliated or related business entities, including each of theirrespective current, former and future officers, directors, employees, agents,representatives, attorneys, and shareholders, or (ii) encourage or assist anyother person or entity making any such public or private comments.

 

(b)         TheBoard of Directors of the Company shall not (i) make any public or privatecomments disparaging or denigrating Mr. Rusert or (ii) encourage or assist anyother person or entity making any such public or private comments.  If any potential or future employer of Mr.Rusert wants to contact the Company for a reference, Mr. Rusert shall directsuch individual to contact the Company’s Human Resources Department who shallverify only Mr. Rusert’s job title and dates of employment.

 

(c)          Inthe event of any breach or threatened breach of this Section 6 byeither party, the non-breaching party shall be entitled to seek injunctive orother equitable relief.  If such partyprevails in any such action, the breaching party shall be obligated toreimburse the non-breaching party for any reasonable attorneys’ fees incurredin obtaining such injunctive or equitable relief.  No breach of this Section 6 by either party shallrender void or otherwise negate any other provision of this Agreement, all ofwhich shall remain in full force and effect.

 

(d)         Underno circumstances shall testimony given under oath in any lawsuit, deposition orother legal proceeding be

 

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held toconstitute a violation of this Section 6.

 

Section 7.   Release by Mr. Rusert.  In consideration of the promises containedherein, except to the extent specifically identified below, Mr. Rusert herebyfreely and voluntarily relieves, releases and discharges the Company, anysubsidiaries of the Company, and all of their respective affiliated or relatedbusiness entities, including each of their respective current, former andfuture officers, directors, employees, agents, representatives, attorneys, andshareholders, for actions or inactions taken in their capacity as such, fromany and all claims, actions, causes of action at law or in equity, agreements,contracts, covenants, obligations, demands, liabilities, liens, costs,expenses, or losses of any nature whatsoever, known or unknown, suspected orunsuspected, fixed or contingent (collectively “Claims and Losses”),which Mr. Rusert now has, ever had, or hereafter may have as a result of factsor circumstances occurring prior to the Effective Date by reason of or relatingto his employment by or other service to the Company or any subsidiary of theCompany or the circumstances surrounding the termination thereof, or his serviceas a director of the Company or any subsidiary of the Company or thecircumstances surrounding the termination thereof, including, withoutlimitation, any Claims and Losses arising under any federal, state or local orother governmental law, statute, ordinance, rule or regulation, including butnot limited to (i) Claims and Losses arising under Title VII of the CivilRights Act of 1964, as amended, the Civil Rights Act of 1991, as amended, theCalifornia Fair Employment and Housing Act, as amended, the Americans withDisabilities Act of 1990, as amended, the Equal Pay Act, as amended, theEmployee Retirement Income Security Act of 1974, as amended, the Fair LaborStandards Act, as amended, the California Family Rights Act, as amended, theCalifornia Labor Code, as amended, (ii) Claims and Losses related to or arisingout of alleged acts of discrimination on the basis of the following, includingbut not limited to, race or national origin, sex or sexual harassment, (iii)Claims and Losses related to or arising out of any actual or alleged violationof common law, including but not limited to claims of wrongful termination,harassment, violation of public policy, retaliation, breach of the covenant ofgood faith and fair dealing, breach of fiduciary duty, interference withprospective economic and/or contractual relations, intentional infliction ofemotional distress, negligent infliction of emotional distress, defamation, andinvasion of privacy, (iv) Claims and Losses arising out of or relating to anyactual or alleged breach of contract, express or implied, including any claimunder the Employment Agreement or any stock option agreement or related plan ordocument, (v) Claims or Losses relating to the granting of, or the failure togrant,  stock options to Mr. Rusert orany claims that he may have in his capacity as a shareholder of the Company orany other company and (vi) Claims and Losses arising out of or relating to anyclaim for unpaid wages, bonus pay, commission pay, severance pay, expensereimbursement, vacation, personal days, sick leave, holiday pay, othercompensation of any kind, life insurance, health or medical insurance,attorneys’ fees, workers’ compensation, disability benefits or any other fringebenefit of any kind; provided, however, that Mr. Rusert does nothereby release (i) any Claims or Losses arising under the Federal AgeDiscrimination in Employment Act of 1967, as amended by the Older WorkersBenefit Protection Act (which are the subject of a separate ADEA Release whichmay be entered into between the parties, a copy of which is attached hereto as ExhibitA), (ii) any of the Company’s obligations under this Agreement or under theADEA Release, (iii) any claim that cannot be released under the law, (iv) anyevent occurring after the Effective Date of this Agreement and Release givingrise to any Claims or Losses; (v) any Claims or Losses arising out of anyconduct by the Company, any subsidiaries of the Company, or any of its/theirrespective affiliated or related business entities (including each of theirrespective current, former and future officers, directors, employees, agents,representatives, attorneys, and shareholders for their actions or inactions intheir capacity as such) which was knowingly fraudulent or deliberately dishonest(vi) any right of Mr. Rusert to indemnity or contribution by the Companypursuant to its Articles of Incorporation or Bylaws or (vii) anycross-complaint, counter claim, defense, or right of offset to any action orother proceeding initiated against Mr. Rusert by or on behalf of anyshareholder(s) of the Company, its subsidiaries, or any of their respectiveaffiliated or related business entities.  The provisions of this Section 7 are expresslyintended for the benefit of the third parties released herein.

 

Section 8.   Release by the Company.  In consideration of the promises containedherein, except as specifically identified below, the Company, all subsidiariesof the Company and all of their respective affiliated or related businessentities, and each of them, hereby freely and voluntarily relieves, releasesand discharges Mr. Rusert from any and all Claims and Losses, known or unknown,suspected or unsuspected, fixed or contingent, which the Company, itssubsidiaries and all of their respective affiliated or related businessentities, and each of them, now has, ever had, or hereafter may have againstMr. Rusert as a result of facts or circumstances occurring prior to theEffective Date by reason of or relating to his employment by or other service tothe Company or any subsidiary of the Company or the circumstances surroundingthe termination thereof, or his service as a director of the Company or anysubsidiary of the Company or the circumstances surrounding the terminationthereof; provided, however, that this Agreement and Release shallnot release (i) any Claims and Losses arising from Mr. Rusert’s conduct at anytime after January 16, 2004, (ii) any Claims or Losses arising out of anyconduct by Mr. Rusert which was knowingly fraudulent or deliberately dishonest,(iii) any obligations under any agreement referred to in Section 12(a) ofthis Agreement and Release, (iv) any rights of the Company or any other personarising under the Sarbanes-Oxley Act of 2002, or (v) Mr. Rusert from any of hisobligations under this Agreement or under the ADEA Release.

 

Section 9.   Covenant Not to Sue.  Except to the extent required by law,neither party shall bring or induce or assist any other person in bringing, anyclaim, action or proceeding of any kind or nature against any person or entityreleased herein, directly or indirectly, regarding, connected with, arising outof, or relating to in any manner the claims released hereby.

 

Section 10.   Waiver of Certain Benefits.  Mr. Rusert and the Company acknowledge andrepresent that each is familiar with the provisions of Section 1542 of theCalifornia Civil Code which provides as follows:

 

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“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOESNOT 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 THEDEBTOR.”

 

Except for the rights or obligations expressly provided for herein, Mr.Rusert and the Company knowingly, voluntarily and expressly waive any rightsand benefits arising under Section 1542 of the California Civil Code andany other statute or principle of similar effect.  Mr. Rusert and the Company also hereby assume the risk of anymistake in fact existing in connection with the true facts involved, or withregard to any facts which are now unknown to either party.

 

Section 11.   No Admission of Wrongdoing.  This Agreement and Release does notconstitute an admission by either party of any liability or wrongdoing, allsuch liability being expressly denied, and no provision of this Agreement andRelease shall be construed as an admission or concession by either party of anyliability or wrongdoing.

 

Section 12.   Continuing Obligations of Mr. Rusert.

 

(a)          ProprietaryInformation.  Mr. Rusert acknowledgesthat during his employment with the Company he came into possession of tradesecrets or other confidential and proprietary information of the Company (allof which will be referred to in this Agreement and Release as “proprietaryinformation”), specifically including, among other things, the identity ofclients and prospective clients of the Company, client files and detailedinformation concerning client needs or requirements, product designs, drawingsand specifications, or drafts thereof, formulae, product planning information,market surveys and forecasts, software codes, pricing, cost and margininformation and other financial information and records of the Company.  The parties hereto agree that proprietaryinformation shall not include: (a) the names and contact information of theshareholders of the Company, its subsidiaries, and their respective affiliatedor related business entities, (b) information publicly known through nowrongful act or breach of any obligation and/or fiduciary duty of confidentialityon the part of Mr. Rusert and/or any third party, and/or (c) informationdeveloped by Mr. Rusert and/or some third party independently of the Companywithout any wrongful act or breach of any obligation and/or fiduciary duty ofconfidentiality on the part of Mr. Rusert or such third party.  With the foregoing exceptions, Mr. Rusertacknowledges that the foregoing types of proprietary information arehighly confidential to the Company and that the Company spends significant timeand resources in safeguarding such information, and such proprietaryinformation is valuable and gives a competitive advantage to the Company, andcould not, without great expense and difficulty, be obtained or duplicated byothers who have not been able to acquire such information by virtue ofemployment with the Company.  Mr. Rusertagrees that he will maintain such proprietary information in strict confidenceafter his employment with the Company ends for the sole benefit of the Company,unless he first obtains the prior written consent of either the Chairman of theBoard or the President of the Company. Mr. Rusert further acknowledges and agrees that he shall not communicateor disclose, directly or indirectly, to any person or firm, or use at any time,any of the Company’s proprietary information, for any purpose, except insofaras he may be authorized and approved as described herein.  The information will remain proprietary foras long as the information is considered confidential by the Company.  In the event of any breach or threatenedbreach of such obligations by Mr. Rusert, the Company shall have the right toseek injunctive or other equitable remedies for such breach.

 

(b)         Nonsolicitation.  As set forth in Section 5 of theEmployment Agreement, Mr. Rusert has agreed, and hereby confirms his agreement,that, for a period of one year following the date of this Agreement andRelease, he shall not, directly or indirectly, for any reason whatsoever, (i)solicit or induce, or attempt to solicit or induce, employees of, consultantsto, or independent contractors of, the Company or its subsidiaries to terminatetheir employment, engagement or affiliation with the Company or in any wayinterfere with the relationship between the Company or any of its subsidiaries,on the one hand, and any such employee of, consultant to, or independentcontractor of the Company or any of its subsidiaries, on the other hand, (ii)knowingly employ or retain for the benefit of a party other than the Company,any such employee of, consultant to, or independent contractor of the Companyor any of its subsidiaries during a period of three months after thetermination of such employee’s, consultant’s or independent contractor’semployment, engagement or affiliation with the Company or any of its subsidiariesunless such retainer is not competitive, and does not interfere with, thesimultaneous retention of such consultant or independent contractor by theCompany, or (iii) induce customers or vendors of the Company, or anyindependent knowledge workers or other information technology professionals, orend user organizations that have a business relationship with the Company, toalter or terminate their business relationship with the Company or any of itssubsidiaries.

 

(c)          Returnof Company Property.  Except asprovided in the ADEA Release, upon the execution of this Agreement and Release,Mr. Rusert shall return to the Company any and all Company property in hispossession or control (e.g., equipment, office keys, business records, laptopcomputer, cell phone, credit cards, etc).  In the event that Mr. Rusert shall discover at any time that he has notreturned any Company property in his possession or control, he shallimmediately return such property to the Company.

 

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Section 13.   Indemnification.  The Company shall defend and indemnify Mr.Rusert from and against any claims by any third parties or those partiesotherwise released herein for which Mr. Rusert would have been indemnified oragainst which Mr. Rusert would have been defended by the Company or Company’sinsurer, in each case in a manner consistent with the Company’s practice orpolicy with respect to the defense and indemnification of its past and presentofficers and directors.

 

Section 14.   Amendments.  No modification, amendment or waiver of anyof the provisions contained in this Agreement and Release, or any futurerepresentation, promise, or condition in connection with the subject matterhereof, shall be binding upon any party hereto unless made in writing andsigned by such party or by a duly authorized officer or agent of such party.

 

Section 15.   Severability.  If any provision of this Agreement and Release shall for any reason beheld invalid, illegal, or unenforceable, the validity, legality, andenforceability of the remaining provisions hereof shall not be affected orimpaired thereby and such remaining provisions of this Agreement and Releaseshall remain in full force and effect. Moreover, if any one or more of the provisions of this Agreement andRelease shall be held to be excessively broad as to duration, activity orsubject, such provision shall be construed by limiting and reducing them so asto be enforceable to the maximum extent allowable by applicable law.

 

Section 16.   Governing Law.  This Agreement and Release is entered intoin the State of California, and shall be interpreted for all purposesconsistent with the laws of the State of California, without regard to itsconflicts of law provisions.

 

Section 17.   Interpretation.  Each party has cooperated in the draftingand preparation of this Agreement and Release, and this Agreement and Releaseshall not be construed against any party on the basis that the party was thedrafter.

 

Section 18.   Representations and Warranties.  Each party hereto represents and warrants tothe other that said party: (a) has not assigned or transferred any portion ofthe claims released herein to any other individual, or entity, and that noother individual or entity has any lien, claim or interest in any of suchclaims; and (b) has the sole and absolute authority to settle, dismiss, releaseand/or discharge all claims settled, dismissed, released and/or dischargedunder this Agreement and Release on behalf of such party (including, withrespect to Company and the claims of its subsidiaries) and to bind said partiesto the terms of this Agreement.

 

Section 19.   Integrated Document.  The parties agree that this Agreement andRelease is a single, integrated written contract expressing the entireagreement of the parties with respect to the subject matter hereof.  The parties acknowledge that no otherpromises, agreements, representations, or warranties, whether express orimplied in law or in fact, have been made about the subject matter hereof byany party to this Agreement and Release, except as specifically set forth inthis Agreement and Release.  All priorand contemporaneous discussions and negotiations about the subject matterherein have been and are merged and integrated into, and are superseded by,this Agreement and Release.  This Section 18is not intended in any way to abrogate the separate agreement of the partiespursuant to the ADEA Release referred to in Section  7.

 

Section 20.    No Assignment.  Mr.Rusert may not assign, pledge, anticipate or in any way create a lien upon anypayment or benefit provided under this Agreement and Release, and no suchpayment or benefit shall be assignable in anticipation of payment, either byvoluntary or involuntary acts or by operation of law.

 

Section 21.   Arbitration.  All controversies, claims, disputes, andmatters in question arising out of, or relating to, this Agreement and Release,or the breach thereof, including any claim for fraud, misrepresentation ordeceit, shall be decided by arbitration in Orange County, California, accordancewith the provisions of this paragraph. The arbitration proceedings shall be conducted under the applicablerules of the Judicial Arbitration Mediation Services (“JAMS”), the AlternativeResolution Centers (“ARC”) or other mutually agreed upon alternative disputeresolution agency.  The arbitrationboard will consist of one arbitrator chosen by the parties.  If the parties cannot agree upon anarbitrator, the parties shall submit to the procedure utilized by JAMS, ARC orother alternative resolution agency, as the case may be, to choose anarbitrator.  The decision of thearbitrator, including determination of the amount of any damages suffered,shall be conclusive, final, and binding on the parties, his/its respectiveheirs, legal representatives, successors, and assigns.  The arbitrator shall be bound to followCalifornia law and case precedent.  Anydecision of the arbitrator will not be binding if the arbitrator fails tofollow California law and case precedent. The losing party shall pay to the successful party its expenses in thearbitration for arbitration costs, including arbitrator’s fees and attorneys’fees, fees for expert testimony, and for other expenses of presenting itscase.  Notwithstanding the above, eitherparty may, in its discretion, obtain any provisional remedy including withoutlimitation, injunctive or similar relief, from any court or competentjurisdiction as may be necessary to protect their respective rights andinterests if necessary to avoid irreparable harm, including without limitation,under Section 6 and Section 12.  The provisions of California Code ofCivil Procedure § 1283.05 as well as any amendments or revisions theretoare incorporated into this Section 21 by reference, with the exceptionthat, for the arbitration of matters not involving claims of breach offiduciary duty, fraud, misrepresentation or deceit, each party to thisAgreement and Release may take up to a maximum of five (5) depositions.

 

[The remainder of this page has beenintentionally left blank]

 

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[Signature page and Section 22  (Consultation with Legal Counsel)follow]

 

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Section 22.   Consultation with Legal Counsel.  Mr. Rusert represents that he (i) hasconsulted with an attorney of his choosing duly admitted to practice law in theState of California concerning the form and content of this Agreement andRelease, (ii) has considered the advice of such legal counsel before signingthis Agreement and Release, (iii) fully understands the terms and conditions ofthis Agreement and Release, (iv) is signing this Agreement and Release of hisown free will without force or coercion of any kind and (iv) is not signingthis Agreement and Release under duress.

 

 

IN WITNESS WHEREOF, the parties hereto have executed this SeparationAgreement and Mutual Release effective as of the date first written above.

 
| ARTEMIS INTERNATIONAL |              |   |
|-----------------------|-------------------|--------|
| SOLUTIONS CORPORATION |              |   |
|                  |              |   |
|                  |              |   |
| By:                   |              |   |   |   |
|                  | MICHAEL J. RUSERT |   |
| Title:                |              |   |   |   |
|                       |                   |        |  |  |  |  |

 

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**EXHIBIT A**

 

**RELEASE OF ADEA CLAIMS**

 

This Release of ADEA Claims (this “ADEA Release”) is entered intoeffective as of January     , 2004 by and betweenMichael J. Rusert (“Mr. Rusert”) and Artemis International SolutionsCorporation (the “Company”).

 

BACKGROUND

 

WHEREAS, Mr. Rusert and the Company have entered into that certainSeparation Agreement and Mutual Release effective as of January 22, 2004(the “Separation Agreement and Mutual Release”);

 

WHEREAS, Mr. Rusert did not release the Company in the SeparationAgreement and Mutual Release from any claims he may have under the Federal AgeDiscrimination in Employment Act, as amended by the Older Workers BenefitProtection Act;

 

WHEREAS, the Company and Mr. Rusert have separately negotiated for therelease of any and all such claims on the terms set forth in this ADEA Release;

 

NOW,  THEREFORE, in considerationof the covenants contained herein, the receipt and sufficiency of which arehereby acknowledged, the Company and Mr. Rusert hereby agree as follows:

 

# **AGREEMENT**

 

Section 1.   Release of ADEA Claims.  In consideration of the promises containedherein, Mr. Rusert hereby freely and voluntarily relieves, releases anddischarges the Company, any subsidiaries of the Company, and all of theirrespective affiliated or related business entities, including each of theirrespective current, former and future officers, directors, employees, agents,representatives, attorneys and shareholders, for actions or inactions taken intheir capacity as such, from any and all claims, actions, causes of action atlaw or in equity, obligations, demands, liabilities, costs, expenses or lossesof any nature whatsoever, known or unknown, suspected or unsuspected, fixed orcontingent, that Mr. Rusert now has or ever had under the Federal AgeDiscrimination in Employment Act, as amended by the Older Workers BenefitProtection Act (the “ADEA Claims”). Except to the extent required by law or preserved under the SeparationAgreement and Mutual Release, Mr. Rusert agrees not to bring, induce or assistany other person in bringing, any claim, action or proceeding of any kind ornature against any person or entity released herein, directly or indirectly,regarding, connected with, arising out of, or relating in any manner to theclaims released hereby in any forum whatsoever.  The provisions of this Section 1 are expressly intended forthe benefit of the third parties released herein.

 

Section 2.  Agreement bythe Company.  In consideration of therelease provided in Section 1, the Company shall continue to make thepayments on the leased automobile that was provided to Mr. Rusert during theterm of his employment with the Company (the “Leased Car”) through theremainder of the current lease term and shall continue to allow Mr. Rusert touse the Leased Car during such period. Except to the extent such cost, liability, obligation or expense hasalready accrued as of January 15, 2004, Mr. Rusert shall indemnify andhold the Company harmless from any cost, liability, obligation or expenserelated to the Leased Car other than the obligation to make the lease paymentsfor the remainder of the current lease term as provided in the immediatelypreceding sentence.  Without limitingthe generality of the foregoing, Mr. Rusert shall (i) continue to honor allterms of the lease agreement (other than the requirement to make the leasepayments, which will be made by the Company), (ii) maintain at his own expensethe required insurance on the Leased Car, (iii) provide periodic maintenancefor the Leased Care at his own expense to ensure that the warranty requirementsfor the Leased Car are met, (iv) bear all operating expenses related to theLeased Car (e.g., fuel, oil, etc.), (v) be responsible for and indemnify theCompany against any damage to the Leased Car, and (vi) return the Leased Car tothe leasing company at the expiration of the current lease term or extend thelease or purchase or sell the Leased Car to any person or entity, providedhowever, that, in connection with such lease extension, purchase or sale, Mr.Rusert obtains a complete release of the Company’s obligations under such leaseand with respect to the Leased Car.

 

Section 2.  Acknowledgement.  Mr. Rusertacknowledges that (i) the Company’s agreement in Section 2 is in additionto anything of value to which he is already entitled, (ii) he has been offereda period of at least twenty-one (21) days to consider whether to agree to waivehis ADEA Claims and (iii) he has been informed that he has a right to andshould consult with an attorney of his choice at any time prior to signing thisADEA Release.

 

Section 3.   Right toRevoke.  Mr. Rusert shall have the rightto revoke this ADEA Release at any time within seven

 

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(7) days after signing and delivering it to the Company’s GeneralCounsel at the Company, and this ADEA and Release shall not become effective orenforceable until the expiration of such seven (7) day revocation period.  If Mr. Rusert elects to revoke this ADEARelease during such seven (7) day period, the Company will not be required tofulfill the agreement set forth in Section 2, and Mr. Rusert shall beobligated to return the Leased Car to the Company concurrently with suchrevocation.  The revocation of this ADEARelease shall not affect in any way the terms and conditions of the SeparationAgreement and Mutual Release, which shall remain in full force and effect evenif Mr. Rusert revokes this ADEA Release. The parties agree that any changes, whether or not material, agreed uponby the parties that are incorporated into this ADEA Release do not restart the21-day consideration period referenced above and that Mr. Rusert is notrequired to wait (and may sign and deliver this ADEA Release without waiting)for the full 21 day period during which he has been permitted to review thisADEA Release.

 

Section 4.  Amendments.  No modification,amendment or waiver of any of the provisions contained in this ADEA Release, orany future representation, promise, or condition in connection with the subjectmatter hereof shall be binding upon any party hereto unless made in writing andsigned by such party or by a duly authorized officer or agent of such party.

 

Section 5.  Severability.  In the event anyprovision of this ADEA Release should be held to be void, voidable, unlawful orfor any reason unenforceable, the remaining portions of this ADEA Release shallremain in full force and effect.

 

Section 6.   GoverningLaw.  This ADEA Release is entered intoin the State of California, and shall be interpreted for all purposesconsistent with the laws of the State of California, without regard to itsconflicts of law provisions.

 

Section 7.  Interpretation.  Each party hascooperated in the drafting and preparation of this ADEA Release, and this ADEARelease shall not be construed against any party on the basis that the partywas the drafter.

 

Section 8.  Representations and Warranties.  Mr.Rusert represents and warrants that he has not assigned or transferred anyportion of the claims released herein to any other individual, or entity, andthat no other individual or entity has any lien, claim or interest in any ofsuch claims, including but not limited to, any claim or interest arising outof, related to or connected with the matters referenced herein.

 

Section 9.   IntegratedDocument.  This ADEA Release is asingle, integrated written contract expressing the entire agreement of the partiesrelating to the release of Mr. Rusert’s ADEA Claims as provided herein.  The parties acknowledge that no otherpromises, agreements, representations, or warranties, whether express orimplied in law or in fact, have been made about the subject matter herein byany party to this ADEA Release, except as specifically set forth herein.  All prior and contemporaneous discussionsand negotiations about the subject matter herein have been and are merged andintegrated into, and are superseded hereby.

 

Section 10.   Arbitration.  All controversies, claims, disputes, and matters in questionarising out of, or relating to, this ADEA Release, or the breach thereof, shallbe decided by arbitration in Orange County, California in accordance with theprovisions of this paragraph.  Thearbitration proceedings shall be conducted under the applicable rules of theJudicial Arbitration Mediation Services (“JAMS”), the Alternative ResolutionCenters (“ARC”) or other mutually agreed upon alternative dispute resolutionagency.  The arbitration board willconsist of one arbitrator chosen by the parties.  If the parties cannot agree upon an arbitrator, the parties shallsubmit to the procedure utilized by JAMS, ARC or other alternative resolutionagency, as the case may be, to choose an arbitrator.  The decision of the arbitrator, including determination of theamount of any damages suffered, shall be conclusive, final, and binding on theparties, his/its respective heirs, legal representatives, successors, andassigns.  The arbitrator shall be boundto follow California law and case precedent. Any decision of the arbitrator will not be binding if the arbitratorfails to follow California law and case precedent.  The losing party shall pay to the successful party its expensesin the arbitration for arbitration costs, including arbitrator’s fees andattorneys’ fees, fees for expert testimony, and for other expenses ofpresenting its case.  Notwithstandingthe above, either party may, in its discretion, obtain any provisional remedyincluding without limitation, injunctive or similar relief, from any court orcompetent jurisdiction as may be necessary to protect their respective rightsand interests if necessary to avoid irreparable harm.  The provisions of California Code of Civil Procedure§ 1283.05 as well as any amendments or revisions thereto are incorporatedinto this Section 10 by reference, with the exception that, for thearbitration of matters not involving claims of breach of fiduciary duty, fraud,misrepresentation or deceit, each party to this Agreement and Release may takeup to a maximum of five (5) depositions.

 

[The remainder of this page has beenintentionally left blank.]

 

[Signature page and Section 11 follow]

 

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[Signature page to Release of ADEA Claims]

 

Section 11.   Consultationwith Legal Counsel.  Mr. Rusertrepresents that he (i) has consulted with an attorney of his choosing dulyadmitted to practice law in the State of California concerning the form andcontent of this ADEA Release, (ii) has consider the advice of such legalcounsel before signing this ADEA Release, (iii) fully understands the terms andconditions of this ADEA Release, (iv) is signing this ADEA Release of his ownfree will without force or coercion of any kind, (iv) is not signing this ADEARelease under duress and (v) understands that he has the right to revoke thisADEA Release at any time within seven (7) days after executing this ADEARelease and returning it to the Company.

 

 

IN WITNESS WHEREOF, the parties hereto have executed this Release ofADEA Claims effective as of the date first written above.

 

 
| ARTEMIS INTERNATIONAL |              |   |
|-----------------------|-------------------|--------|
| SOLUTIONS CORPORATION |              |   |
|                  |              |   |
|                  |              |   |
| By:                   |              |   |   |   |   |
|                  | MICHAEL J. RUSERT |   |
| Title:                |              |   |   |   |
|                       |                   |        |  |  |  |  |

 

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