Exhibit 10.44.2


 


SEPARATION AGREEMENT AND MUTUAL RELEASE


 


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


 


BACKGROUND


 


WHEREAS, Mr. Rusert and the Company are parties to that certain
Employment Agreement dated as of January 25, 2002, as amended by that
certain 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 Company
from January 25, 2002 through January 16, 2004;


 


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


 


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


 


NOW,  THEREFORE, in
consideration of the covenants contained herein and other good and valuable
consideration, 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, effective
as 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 any
subsidiary or other affiliate of the Company, (iii) any other positions that he
may have held at such time with the Company or any subsidiary or other
affiliate of the Company, and (iv) the Board of Directors of the Company and
the Board of Directors of any subsidiary or other affiliate of the Company of
which he may have been a member at such time, if any.


 


Section 2.   Transition Assistance/Cooperation.  In order to facilitate a smooth and orderly
transition to a new President and Chief Executive Officer, Mr. Rusert shall, to
the extent reasonably requested by Company and provided it does not
unreasonably interfere with his other employment (including self-employment) or
efforts to secure such employment, provide consulting services and otherwise
make himself available to assist the Company in effecting such transition on an
“as requested, as needed” basis through February 20, 2004, for no more
than twenty to twenty-five hours per week.  
All services provided by Mr. Rusert pursuant to this Section 2
shall be at no cost to Mr. Rusert.   Mr.
Rusert further agrees to cooperate in good faith with the Company in connection
with any defense, prosecution or investigation regarding any actual or
potential litigation or administrative proceeding in which the Company may be
involved as a party or non-party provided and to the extent that it does not
unreasonably interfere with his other employment (including self-employment) or
efforts to secure such employment.


 


Section 3.   Payments by the Company.


 


(a)          As
severance pay and in consideration of Mr. Rusert’s agreement to provide
transition assistance as provided in Section 2 and in consideration
of Mr. Rusert releasing claims as provided in Section 7, the
Company shall pay to Mr. Rusert an amount equal to the annual base salary
provided for in the Employment Agreement (i.e., $285,000).  Such amount shall be paid as salary
continuation payments over the one-year period from January 17, 2004
through January 16, 2005 (and not in a lump sum) in the same periodic
installments as his base salary has been paid prior to the date hereof in
accordance with the Company’s standard payroll schedule.  Such payments shall be subject to any
required withholding for federal, state or local taxes or other amounts
required by law to be withheld.


 


(b)         In
addition to the payments provided for in Section 3(a), the Company
will provide Mr. Rusert with the benefits set forth in Section 2 of the
ADEA Release referred to in Section 7, subject to Mr. Rusert’s
compliance with the conditions set forth in such Section 2; provided,
however, that the Company will have no further obligation to provide
such 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 time
or (ii) if Mr. Rusert signs the ADEA Release prior to the expiration of such 21
day


 

















 


period but
timely revokes the ADEA Release as permitted thereby.


 


(c)          In
addition to the payments referenced above, the Company shall, no later than
seven (7) days after the Effective Date, pay to Mr. Rusert, in lawful currency
of the United States of America and in lump sum: (i) $6,000.00 as and for
earned and unpaid Incentive Compensation due and owing to Mr. Rusert under
Section 2 of the Employment Agreement and (ii) $14,250.00 as and for
accrued and unpaid vacation pay due and owing to Mr. Rusert, in each case
subject to the Company’s normal payroll withholding practices.


 


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


 


(e)          The
Company and Mr. Rusert acknowledge and agree that, effective as of the close of
business on January 16, 2004, all of their respective rights and
obligations under the Employment Agreement shall be deemed to have terminated
and to be of no further force or effect; provided, however, that
the provisions of Section 5 (Non-Solicitation) of the Employment
Agreement, 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. Rusert
holds certain stock options granted to him by the Company pursuant to the
Employment Agreement (the “Stock Options”).  The provisions of the agreements evidencing the Stock Options (or
any related stock option plan) notwithstanding, Stock Options to purchase
250,000 shares of Common Stock at an exercise price of $1.50 per share shall be
deemed vested as of the January 17, 2004 and shall remain exercisable
through January 16, 2008.   The
parties agree that Mr. Rusert is not required to purchase all shares authorized
under the Stock Options at the time of exercise but rather may exercise the
Stock Options granted hereunder from time-to-time at any time during the
exercise period in such amounts as Mr. Rusert may, in his discretion, elect
until such time as all shares of the Company Common Stock represented by said
Stock Options have been purchased.  Any
other stock options held by Mr. Rusert shall be deemed terminated as of the
date of this Agreement and shall not be or become exercisable and Mr. Rusert
shall not have any right to receive any further grants of stock options from
the Company.   If, after the Effective
Date, the Common Stock of the Company is changed by reason of a stock split,
reverse stock split, stock dividend or recapitalization, or converted into or
exchanged for other securities as a result of a merger, consolidation or
reorganization (a “Recapitalization”), the numbers of shares subject to the
Stock Options granted hereunder shall be adjusted or converted by the same
factor or into the same securities as a like number of outstanding shares of
Common Stock of the Company would have been adjusted as a result of such
Recapitalization.


 


Section 5.   No Confidentiality.  Recognizing the Company’s legal obligation
to make a public announcement of Mr. Rusert’s resignation and to file a copy of
this Agreement and Release with the Securities and Exchange Commission, neither
party has any expectation of confidentiality with respect to the terms
hereof.  The Company shall have the
right to file a copy of this Agreement with the Securities and Exchange
Commission 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 or
denigrating the Company or any of its any subsidiaries, or any of their
respective affiliated or related business entities, including each of their
respective current, former and future officers, directors, employees, agents,
representatives, attorneys, and shareholders, or (ii) encourage or assist any
other person or entity making any such public or private comments.


 


(b)         The
Board of Directors of the Company shall not (i) make any public or private
comments disparaging or denigrating Mr. Rusert or (ii) encourage or assist any
other 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 direct
such individual to contact the Company’s Human Resources Department who shall
verify only Mr. Rusert’s job title and dates of employment.


 


(c)          In
the event of any breach or threatened breach of this Section 6 by
either party, the non-breaching party shall be entitled to seek injunctive or
other equitable relief.  If such party
prevails in any such action, the breaching party shall be obligated to
reimburse the non-breaching party for any reasonable attorneys’ fees incurred
in obtaining such injunctive or equitable relief.  No breach of this Section 6 by either party shall
render void or otherwise negate any other provision of this Agreement, all of
which shall remain in full force and effect.


 


(d)         Under
no circumstances shall testimony given under oath in any lawsuit, deposition or
other legal proceeding be


 

















 


held to
constitute a violation of this Section 6.


 


Section 7.   Release by Mr. Rusert.  In consideration of the promises contained
herein, except to the extent specifically identified below, Mr. Rusert hereby
freely and voluntarily relieves, releases and discharges the Company, any
subsidiaries of the Company, and all of their respective affiliated or related
business entities, including each of their respective current, former and
future officers, directors, employees, agents, representatives, attorneys, and
shareholders, for actions or inactions taken in their capacity as such, from
any 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 or
unsuspected, fixed or contingent (collectively “Claims and Losses”),
which Mr. Rusert now has, ever had, or hereafter may have as a result of facts
or circumstances occurring prior to the Effective Date by reason of or relating
to his employment by or other service to the Company or any subsidiary of the
Company or the circumstances surrounding the termination thereof, or his service
as a director of the Company or any subsidiary of the Company or the
circumstances surrounding the termination thereof, including, without
limitation, any Claims and Losses arising under any federal, state or local or
other governmental law, statute, ordinance, rule or regulation, including but
not limited to (i) Claims and Losses arising under Title VII of the Civil
Rights Act of 1964, as amended, the Civil Rights Act of 1991, as amended, the
California Fair Employment and Housing Act, as amended, the Americans with
Disabilities Act of 1990, as amended, the Equal Pay Act, as amended, the
Employee Retirement Income Security Act of 1974, as amended, the Fair Labor
Standards Act, as amended, the California Family Rights Act, as amended, the
California Labor Code, as amended, (ii) Claims and Losses related to or arising
out of alleged acts of discrimination on the basis of the following, including
but 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 violation
of common law, including but not limited to claims of wrongful termination,
harassment, violation of public policy, retaliation, breach of the covenant of
good faith and fair dealing, breach of fiduciary duty, interference with
prospective economic and/or contractual relations, intentional infliction of
emotional distress, negligent infliction of emotional distress, defamation, and
invasion of privacy, (iv) Claims and Losses arising out of or relating to any
actual or alleged breach of contract, express or implied, including any claim
under the Employment Agreement or any stock option agreement or related plan or
document, (v) Claims or Losses relating to the granting of, or the failure to
grant,  stock options to Mr. Rusert or
any claims that he may have in his capacity as a shareholder of the Company or
any other company and (vi) Claims and Losses arising out of or relating to any
claim for unpaid wages, bonus pay, commission pay, severance pay, expense
reimbursement, vacation, personal days, sick leave, holiday pay, other
compensation of any kind, life insurance, health or medical insurance,
attorneys’ fees, workers’ compensation, disability benefits or any other fringe
benefit of any kind; provided, however, that Mr. Rusert does not
hereby release (i) any Claims or Losses arising under the Federal Age
Discrimination in Employment Act of 1967, as amended by the Older Workers
Benefit Protection Act (which are the subject of a separate ADEA Release which
may be entered into between the parties, a copy of which is attached hereto as Exhibit
A), (ii) any of the Company’s obligations under this Agreement or under the
ADEA Release, (iii) any claim that cannot be released under the law, (iv) any
event occurring after the Effective Date of this Agreement and Release giving
rise to any Claims or Losses; (v) any Claims or Losses arising out of any
conduct by the Company, any subsidiaries of the Company, or any of its/their
respective affiliated or related business entities (including each of their
respective current, former and future officers, directors, employees, agents,
representatives, attorneys, and shareholders for their actions or inactions in
their capacity as such) which was knowingly fraudulent or deliberately dishonest
(vi) any right of Mr. Rusert to indemnity or contribution by the Company
pursuant to its Articles of Incorporation or Bylaws or (vii) any
cross-complaint, counter claim, defense, or right of offset to any action or
other proceeding initiated against Mr. Rusert by or on behalf of any
shareholder(s) of the Company, its subsidiaries, or any of their respective
affiliated or related business entities.  The provisions of this Section 7 are expressly
intended for the benefit of the third parties released herein.


 


Section 8.   Release by the Company.  In consideration of the promises contained
herein, except as specifically identified below, the Company, all subsidiaries
of the Company and all of their respective affiliated or related business
entities, and each of them, hereby freely and voluntarily relieves, releases
and discharges Mr. Rusert from any and all Claims and Losses, known or unknown,
suspected or unsuspected, fixed or contingent, which the Company, its
subsidiaries and all of their respective affiliated or related business
entities, and each of them, now has, ever had, or hereafter may have against
Mr. Rusert as a result of facts or circumstances occurring prior to the
Effective Date by reason of or relating to his employment by or other service to
the Company or any subsidiary of the Company or the circumstances surrounding
the termination thereof, or his service as a director of the Company or any
subsidiary of the Company or the circumstances surrounding the termination
thereof; provided, however, that this Agreement and Release shall
not release (i) any Claims and Losses arising from Mr. Rusert’s conduct at any
time after January 16, 2004, (ii) any Claims or Losses arising out of any
conduct by Mr. Rusert which was knowingly fraudulent or deliberately dishonest,
(iii) any obligations under any agreement referred to in Section 12(a) of
this Agreement and Release, (iv) any rights of the Company or any other person
arising under the Sarbanes-Oxley Act of 2002, or (v) Mr. Rusert from any of his
obligations 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, any
claim, action or proceeding of any kind or nature against any person or entity
released herein, directly or indirectly, regarding, connected with, arising out
of, or relating to in any manner the claims released hereby.


 


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


 

















 


“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE
, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR.”


 


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


 


Section 11.   No Admission of Wrongdoing.  This Agreement and Release does not
constitute an admission by either party of any liability or wrongdoing, all
such liability being expressly denied, and no provision of this Agreement and
Release shall be construed as an admission or concession by either party of any
liability or wrongdoing.


 


Section 12.   Continuing Obligations of Mr. Rusert.


 


(a)          Proprietary
Information.  Mr. Rusert acknowledges
that during his employment with the Company he came into possession of trade
secrets or other confidential and proprietary information of the Company (all
of which will be referred to in this Agreement and Release as “proprietary
information”), specifically including, among other things, the identity of
clients and prospective clients of the Company, client files and detailed
information concerning client needs or requirements, product designs, drawings
and specifications, or drafts thereof, formulae, product planning information,
market surveys and forecasts, software codes, pricing, cost and margin
information and other financial information and records of the Company.  The parties hereto agree that proprietary
information shall not include: (a) the names and contact information of the
shareholders of the Company, its subsidiaries, and their respective affiliated
or related business entities, (b) information publicly known through no
wrongful act or breach of any obligation and/or fiduciary duty of confidentiality
on the part of Mr. Rusert and/or any third party, and/or (c) information
developed by Mr. Rusert and/or some third party independently of the Company
without any wrongful act or breach of any obligation and/or fiduciary duty of
confidentiality on the part of Mr. Rusert or such third party.  With the foregoing exceptions, Mr. Rusert
acknowledges that the foregoing types of proprietary information are
highly confidential to the Company and that the Company spends significant time
and resources in safeguarding such information, and such proprietary
information is valuable and gives a competitive advantage to the Company, and
could not, without great expense and difficulty, be obtained or duplicated by
others who have not been able to acquire such information by virtue of
employment with the Company.  Mr. Rusert
agrees that he will maintain such proprietary information in strict confidence
after 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 the
Board or the President of the Company. 
Mr. Rusert further acknowledges and agrees that he shall not communicate
or 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 insofar
as he may be authorized and approved as described herein.  The information will remain proprietary for
as long as the information is considered confidential by the Company.  In the event of any breach or threatened
breach of such obligations by Mr. Rusert, the Company shall have the right to
seek injunctive or other equitable remedies for such breach.


 


(b)         Nonsolicitation.  As set forth in Section 5 of the
Employment Agreement, Mr. Rusert has agreed, and hereby confirms his agreement,
that, for a period of one year following the date of this Agreement and
Release, he shall not, directly or indirectly, for any reason whatsoever, (i)
solicit or induce, or attempt to solicit or induce, employees of, consultants
to, or independent contractors of, the Company or its subsidiaries to terminate
their employment, engagement or affiliation with the Company or in any way
interfere with the relationship between the Company or any of its subsidiaries,
on the one hand, and any such employee of, consultant to, or independent
contractor 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 Company
or any of its subsidiaries during a period of three months after the
termination of such employee’s, consultant’s or independent contractor’s
employment, engagement or affiliation with the Company or any of its subsidiaries
unless such retainer is not competitive, and does not interfere with, the
simultaneous retention of such consultant or independent contractor by the
Company, or (iii) induce customers or vendors of the Company, or any
independent knowledge workers or other information technology professionals, or
end user organizations that have a business relationship with the Company, to
alter or terminate their business relationship with the Company or any of its
subsidiaries.


 


(c)          Return
of Company Property.  Except as
provided 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 his
possession or control (e.g., equipment, office keys, business records, laptop
computer, cell phone, credit cards, etc).  
In the event that Mr. Rusert shall discover at any time that he has not
returned any Company property in his possession or control, he shall
immediately return such property to the Company.


 

















 


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


 


Section 14.   Amendments.  No modification, amendment or waiver of any
of the provisions contained in this Agreement and Release, or any future
representation, promise, or condition in connection with the subject matter
hereof, shall be binding upon any party hereto unless made in writing and
signed 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 be
held invalid, illegal, or unenforceable, the validity, legality, and
enforceability of the remaining provisions hereof shall not be affected or
impaired thereby and such remaining provisions of this Agreement and Release
shall remain in full force and effect. 
Moreover, if any one or more of the provisions of this Agreement and
Release shall be held to be excessively broad as to duration, activity or
subject, such provision shall be construed by limiting and reducing them so as
to be enforceable to the maximum extent allowable by applicable law.


 


Section 16.   Governing Law.  This Agreement and Release is entered into
in the State of California, and shall be interpreted for all purposes
consistent with the laws of the State of California, without regard to its
conflicts of law provisions.


 


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


 


Section 18.   Representations and Warranties.  Each party hereto represents and warrants to
the other that said party: (a) has not assigned or transferred any portion of
the claims released herein to any other individual, or entity, and that no
other individual or entity has any lien, claim or interest in any of such
claims; and (b) has the sole and absolute authority to settle, dismiss, release
and/or discharge all claims settled, dismissed, released and/or discharged
under this Agreement and Release on behalf of such party (including, with
respect to Company and the claims of its subsidiaries) and to bind said parties
to the terms of this Agreement.


 


Section 19.   Integrated Document.  The parties agree that this Agreement and
Release is a single, integrated written contract expressing the entire
agreement of the parties with respect to the subject matter hereof.  The parties acknowledge that no other
promises, agreements, representations, or warranties, whether express or
implied in law or in fact, have been made about the subject matter hereof by
any party to this Agreement and Release, except as specifically set forth in
this Agreement and Release.  All prior
and contemporaneous discussions and negotiations about the subject matter
herein have been and are merged and integrated into, and are superseded by,
this Agreement and Release.  This Section 18
is not intended in any way to abrogate the separate agreement of the parties
pursuant 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 any
payment or benefit provided under this Agreement and Release, and no such
payment or benefit shall be assignable in anticipation of payment, either by
voluntary or involuntary acts or by operation of law.


 


Section 21.   Arbitration.  All controversies, claims, disputes, and
matters in question arising out of, or relating to, this Agreement and Release,
or the breach thereof, including any claim for fraud, misrepresentation or
deceit, shall be decided by arbitration in Orange County, California, accordance
with the provisions of this paragraph. 
The arbitration proceedings shall be conducted under the applicable
rules of the Judicial Arbitration Mediation Services (“JAMS”), the Alternative
Resolution Centers (“ARC”) or other mutually agreed upon alternative dispute
resolution agency.  The arbitration
board will consist of one arbitrator chosen by the parties.  If the parties cannot agree upon an
arbitrator, the parties shall submit to the procedure utilized by JAMS, ARC or
other alternative resolution agency, as the case may be, to choose an
arbitrator.  The decision of the
arbitrator, including determination of the amount of any damages suffered,
shall be conclusive, final, and binding on the parties, his/its respective
heirs, legal representatives, successors, and assigns.  The arbitrator shall be bound to follow
California law and case precedent.  Any
decision of the arbitrator will not be binding if the arbitrator fails to
follow California law and case precedent. 
The losing party shall pay to the successful party its expenses in the
arbitration for arbitration costs, including arbitrator’s fees and attorneys’
fees, fees for expert testimony, and for other expenses of presenting its
case.  Notwithstanding the above, either
party may, in its discretion, obtain any provisional remedy including without
limitation, injunctive or similar relief, from any court or competent
jurisdiction as may be necessary to protect their respective rights and
interests if necessary to avoid irreparable harm, including without limitation,
under Section 6 and Section 12.  The provisions of California Code of
Civil Procedure § 1283.05 as well as any amendments or revisions thereto
are incorporated into this Section 21 by reference, with the exception
that, for the arbitration of matters not involving claims of breach of
fiduciary duty, fraud, misrepresentation or deceit, each party to this
Agreement and Release may take up to a maximum of five (5) depositions.


 


[The remainder of this page has been
intentionally left blank]


 

















 


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


 

















 


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


 


 


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


 


	
  ARTEMIS INTERNATIONAL

  	
   

  	
   

  
	
  SOLUTIONS CORPORATION

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  MICHAEL J. RUSERT

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  	
   

  
							



 

















 


EXHIBIT A


 


RELEASE OF ADEA CLAIMS


 


This Release of ADEA Claims (this “ADEA Release”) is entered into
effective as of January     , 2004 by and between
Michael J. Rusert (“Mr. Rusert”) and Artemis International Solutions
Corporation (the “Company”).


 


BACKGROUND


 


WHEREAS, Mr. Rusert and the Company have entered into that certain
Separation 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 Separation
Agreement and Mutual Release from any claims he may have under the Federal Age
Discrimination in Employment Act, as amended by the Older Workers Benefit
Protection Act;


 


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


 


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


 


AGREEMENT


 


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


 


Section 2.  Agreement by
the Company.  In consideration of the
release provided in Section 1, the Company shall continue to make the
payments on the leased automobile that was provided to Mr. Rusert during the
term of his employment with the Company (the “Leased Car”) through the
remainder of the current lease term and shall continue to allow Mr. Rusert to
use the Leased Car during such period. 
Except to the extent such cost, liability, obligation or expense has
already accrued as of January 15, 2004, Mr. Rusert shall indemnify and
hold the Company harmless from any cost, liability, obligation or expense
related to the Leased Car other than the obligation to make the lease payments
for the remainder of the current lease term as provided in the immediately
preceding sentence.  Without limiting
the generality of the foregoing, Mr. Rusert shall (i) continue to honor all
terms of the lease agreement (other than the requirement to make the lease
payments, which will be made by the Company), (ii) maintain at his own expense
the required insurance on the Leased Car, (iii) provide periodic maintenance
for the Leased Care at his own expense to ensure that the warranty requirements
for the Leased Car are met, (iv) bear all operating expenses related to the
Leased Car (e.g., fuel, oil, etc.), (v) be responsible for and indemnify the
Company against any damage to the Leased Car, and (vi) return the Leased Car to
the leasing company at the expiration of the current lease term or extend the
lease or purchase or sell the Leased Car to any person or entity, provided
however, that, in connection with such lease extension, purchase or sale, Mr.
Rusert obtains a complete release of the Company’s obligations under such lease
and with respect to the Leased Car.


 


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


 


Section 3.   Right to
Revoke.  Mr. Rusert shall have the right
to revoke this ADEA Release at any time within seven


 

















 


(7) days after signing and delivering it to the Company’s General
Counsel at the Company, and this ADEA and Release shall not become effective or
enforceable until the expiration of such seven (7) day revocation period.  If Mr. Rusert elects to revoke this ADEA
Release during such seven (7) day period, the Company will not be required to
fulfill the agreement set forth in Section 2, and Mr. Rusert shall be
obligated to return the Leased Car to the Company concurrently with such
revocation.  The revocation of this ADEA
Release shall not affect in any way the terms and conditions of the Separation
Agreement and Mutual Release, which shall remain in full force and effect even
if Mr. Rusert revokes this ADEA Release. 
The parties agree that any changes, whether or not material, agreed upon
by the parties that are incorporated into this ADEA Release do not restart the
21-day consideration period referenced above and that Mr. Rusert is not
required 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 this
ADEA Release.


 


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


 


Section 5.  
Severability.  In the event any
provision of this ADEA Release should be held to be void, voidable, unlawful or
for any reason unenforceable, the remaining portions of this ADEA Release shall
remain in full force and effect.


 


Section 6.   Governing
Law.  This ADEA Release is entered into
in the State of California, and shall be interpreted for all purposes
consistent with the laws of the State of California, without regard to its
conflicts of law provisions.


 


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


 


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


 


Section 9.   Integrated
Document.  This ADEA Release is a
single, integrated written contract expressing the entire agreement of the parties
relating to the release of Mr. Rusert’s ADEA Claims as provided herein.  The parties acknowledge that no other
promises, agreements, representations, or warranties, whether express or
implied in law or in fact, have been made about the subject matter herein by
any party to this ADEA Release, except as specifically set forth herein.  All prior and contemporaneous discussions
and negotiations about the subject matter herein have been and are merged and
integrated into, and are superseded hereby.


 


Section 10.   Arbitration.  All controversies, claims, disputes, and matters in question
arising out of, or relating to, this ADEA Release, or the breach thereof, shall
be decided by arbitration in Orange County, California in accordance with the
provisions of this paragraph.  The
arbitration proceedings shall be conducted under the applicable rules of the
Judicial Arbitration Mediation Services (“JAMS”), the Alternative Resolution
Centers (“ARC”) or other mutually agreed upon alternative dispute resolution
agency.  The arbitration board will
consist of one arbitrator chosen by the parties.  If the parties cannot agree upon an arbitrator, the parties shall
submit to the procedure utilized by JAMS, ARC or other alternative resolution
agency, as the case may be, to choose an arbitrator.  The decision of the arbitrator, including determination of the
amount of any damages suffered, shall be conclusive, final, and binding on the
parties, his/its respective heirs, legal representatives, successors, and
assigns.  The arbitrator shall be bound
to follow California law and case precedent. 
Any decision of the arbitrator will not be binding if the arbitrator
fails to follow California law and case precedent.  The losing party shall pay to the successful party its expenses
in the arbitration for arbitration costs, including arbitrator’s fees and
attorneys’ fees, fees for expert testimony, and for other expenses of
presenting its case.  Notwithstanding
the above, either party may, in its discretion, obtain any provisional remedy
including without limitation, injunctive or similar relief, from any court or
competent jurisdiction as may be necessary to protect their respective rights
and 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 incorporated
into this Section 10 by reference, with the exception that, for the
arbitration of matters not involving claims of breach of fiduciary duty, fraud,
misrepresentation or deceit, each party to this Agreement and Release may take
up to a maximum of five (5) depositions.


 


[The remainder of this page has been
intentionally left blank.]


 


[Signature page and Section 11 follow]


 

















 


[Signature page to Release of ADEA Claims]


 


Section 11.   Consultation
with Legal Counsel.  Mr. Rusert
represents that he (i) has consulted with an attorney of his choosing duly
admitted to practice law in the State of California concerning the form and
content of this ADEA Release, (ii) has consider the advice of such legal
counsel before signing this ADEA Release, (iii) fully understands the terms and
conditions of this ADEA Release, (iv) is signing this ADEA Release of his own
free will without force or coercion of any kind, (iv) is not signing this ADEA
Release under duress and (v) understands that he has the right to revoke this
ADEA Release at any time within seven (7) days after executing this ADEA
Release and returning it to the Company.


 


 


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


 


 


	
  ARTEMIS INTERNATIONAL

  	
   

  	
   

  
	
  SOLUTIONS CORPORATION

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  MICHAEL J. RUSERT

  	
   

  
	
  Title: