exhibit_101.htm


    Exhibit 10.1


    SEPARATION AGREEMENT &
MUTUAL RELEASE

     

    THIS
SEPARATION AGREEMENT AND GENERAL RELEASE (this “Agreement”), dated December 2,
2009 is made by and between Betawave Corporation (“Company”), a Delaware
corporation maintaining its principal offices at 706 Mission St., 10th
Floor, San Francisco, CA 94103, and Matt Freeman an individual residing at
[omitted] ("Employee,” and, collectively with Company, the “Parties,” and each a
“Party”).

     

    Whereas,
Employee and Company are parties to that Employment Agreement, dated December 3,
2008; and

     

    Whereas,
Employee’s employment with Company is terminated as of November 30, 2009 (the
“Separation Date”); and

     

    Whereas,
Employee will continue to serve on Company’s board of directors;
and

     

    Whereas,
the Parties wish to resolve any and all disputes arising out of Employee’s
employment and the termination thereof and Company and Employee wish to release
each other from any claims arising from or related to the employment
relationship.

     

    NOW,
THEREFORE, in consideration of the mutual promises made herein, Company and
Employee hereby agree as follows:

     

    1. Termination of Employment;
Continuance of Service as Director. Employee and Company agree to
terminate the employment relationship as of the Effective Date. Employee will
continue to serve as a director on Company’s board of directors.

     

    2. Accrued Salary and Vacation;
Commissions; Expense Reimbursement.  Company will pay Employee
all accrued salary (including all salary deferred from August 15, 2009 through
the Separation Date), all accrued and unused PTO benefits and all unpaid
commissions earned through the Separation Date, if any, subject to standard
payroll deductions, withholding taxes and other obligations. Employee
understands that he is entitled
to this payment regardless of whether or not he signs this Agreement. Employee
agrees that, except as set forth below, he has submitted his final documented
expense reimbursement statement reflecting all business expenses he incurred
prior to and including the Separation Date, and acknowledges receipt of the full
amount of reimbursement therefor; provided, however, that Employee may submit
one final expense reimbursement statement, not to exceed $1,000, within one
month of the Separation Date.

     

    3. Separation Benefits.
In consideration for the release of claims set forth below and other obligations
under this Agreement, and provided that Employee has returned to Company all
Company property in his possession, and provided further  that this
Agreement is signed by Employee and not revoked under Section 10 herein, Company
will pay Employee: (i) his current base salary for six months, equal to
$300,000, subject to normal payroll tax deductions, in monthly installments in
the form of a salary continuation in accordance with the Company’s payroll
procedures and practice; (ii) his current base salary for an additional six
months, equal to $300,000, subject to normal payroll tax deductions, in monthly
installments in the form of a salary continuation in accordance with the
Company’s payroll procedures and practice after the first six months following
the Separation Date less any amount of salary paid to Employee by a new employer
corresponding to this second six month period; (iii) a one-time lump sum payment
of $75,000 payable prior to December 31, 2010, subject to applicable
withholding.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    4. Benefits. Employee
will be offered benefits to which he is entitled under the Consolidated Omnibus
Budget Reconciliation Act of 1985 (“COBRA”), and Employee retains all benefits
under Company’s 401(k) Plan. If Employee timely elects COBRA benefits, the
Company will reimburse Employee for the full premium of Employee’s COBRA
benefits for a period of up to twelve months after the Separation
Date

     

    5. Stock Options. As of
the Separation Date, all shares subject to stock options that would vest through
November 30, 2010 under the Award Agreements (as hereinafter defined) shall
immediately vest and any shares that would vest after November 30, 2010 are
hereby cancelled. As used herein, “Award Agreements” means (i) Employee’s Stock
Option Agreement dated June 5, 2008 for 2,500,000 shares (exercise price $0.23);
(ii) Employee’s Stock Option Agreement dated June 5, 2008 for 2,500,000 shares
(exercise price $0.80) and (iii) Employee’s Stock Option Agreement dated
December 2, 2008 for 19,583,706 shares. All shares subject to Employees’
liquidity stock option awards (five separate grants of 999,441 shares each)
dated December 2, 2008 (the “Liquidity Stock Options”) shall immediately vest in
the event of a Liquidation Event (as defined in the Liquidity Stock Options)
between the Separation Date and November 30, 2010 and any unvested shares as of
December 1, 2010 shall be immediately canceled as of such date.

     

    6. No Other
Entitlement.

     

    6.1. The
parties agree that Company has paid Employee all compensation earned through the
date of termination, any accrued vacation benefits (PTO), as well as any
unreimbursed business expenses and other sums due to Employee. By executing this
Agreement, Employee hereby acknowledges receipt of all such payments as
received.

     

    6.2. Employee
confirms that no other monies are due to him from Company relating to his
service as an employee. Employee acknowledges that he has no entitlement to
receive the consideration set forth in Section 3 above, other than in
consideration of his general release of all claims against Company.

     

    7. Company Property.
Employee shall immediately return all Company property in his possession or
control.

     

    8. Confidential
Information. Employee recognizes and acknowledges that the performance of
his services for Company has resulted in its disclosure to him of certain
proprietary and confidential and financial information. Employee agrees
that:

     

    8.1.  he
will not disclose or use any of Company’s confidential, proprietary or financial
information for his own or any other person’s or entity’s benefit unless such
use or disclosure is specifically consented to in writing by
Company.

     

    8.2. he will
not, directly or indirectly, for himself or on behalf of any other person or
entity, induce or attempt to induce any of Company’s personnel to do anything
contrary to the best interests of Company.

     

    9. Non-Disparagement.
Both Employee and the Company agree not to make any disparaging remarks, or
otherwise take any action that could reasonably be anticipated to cause material
damage to the reputation, goodwill or business of the other party (or, in the
event of the Company, to any employees of Company) or otherwise make remarks
that may reflect negatively upon the other party (or any of its Employees, if
applicable) in any context or setting.

     

    10. Mutual Release of
Claims. In consideration for the obligations of both parties set forth in
this Agreement, Employee and Company, on behalf of themselves, and their
respective heirs, executors, officers, directors, employees,
stockholders, administrators, successor corporations and assigns, hereby fully
and forever release each other and their respective heirs, executors, officers,
directors, employees, stockholders, administrators, co-employers (including
TriNet HR Corporation), successor corporations and assigns, of and from any
claim, duty, obligation or cause of action relating to any matters of any kind,
whether presently known or unknown, suspected or unsuspected, that any of them
may possess arising from any omissions, acts or facts that have occurred up
until and including the date of this Agreement including, without
limitation:

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    10.1. any and
all claims relating to or arising from Employee’s employment relationship with
Company and the termination of that relationship;

     

    10.2. any and
all claims for wrongful discharge of employment; breach of contract, both
express and implied; breach of a covenant of good faith and fair dealing, both
express and implied, negligent or intentional infliction of emotional distress;
negligent or intentional misrepresentation; negligent or intentional
interference with contract or prospective economic advantage; negligence; and
defamation;

     

    10.3. any and
all claims for violation of any federal, state or municipal statute, including,
but not limited to, Title VII of the Civil Rights Act of 1964, the Civil Rights
Act of 1991, the Americans with Disabilities Act of 1990, the
Fair Labor Standards Act; the Fair Credit Reporting Act; the Age Discrimination
in Employment Act of 1967; the Older Workers Benefit Protection Act; the
Employee Retirement Income Security Act of 1974; the Worker Adjustment and
Retraining Notification Act; the Family and Medical Leave Act; the
Sarbanes-Oxley Act of 2002; the New York Equal Pay Law, the New York Human
Rights Law, the New York Civil Rights Act, the New York City Human Rights Act
and the New York City Administrative Code – Title 8;

     

    10.4. any and
all claims arising out of any other laws and regulations relating to employment
or employment discrimination; and

     

    10.5. any and
all claims for attorneys’ fees and costs.

     

    The
Parties agree that the release set forth in this section shall be and remain in
effect in all respects as a complete general release as to the matters
released.  Notwithstanding any other term in this Agreement, this
release does not extend to any obligations incurred under this
Agreement.  This release does not release claims that cannot be
released as a matter of law.

     

    11. Acknowledgment of Waiver of
Claims under ADEA.  Employee acknowledges that he is waiving
and releasing any rights he may have under the Age Discrimination in Employment
Act of 1967 (“ADEA”), and that this waiver and release is knowing and
voluntary.  Employee agrees that this waiver and release does not
apply to any rights or claims that may arise under the ADEA after the Effective
Date (as defined below).  Employee acknowledges that the consideration
given for this waiver and release is in addition to anything of value to which
Employee was already entitled.  Employee further acknowledges that he
has been advised by this writing that: (a) he should consult with an attorney
prior to executing this Agreement; (b) he has twenty-one (21) days within which
to consider this Agreement; (c) he has seven (7) days following his execution of
this Agreement to revoke the Agreement; (d) this Agreement shall not be
effective until after the revocation period has expired; and (e) nothing in this
Agreement prevents or precludes Employee from challenging or seeking a
determination in good faith of the validity of this waiver under the ADEA, nor
does it impose any condition precedent, penalties, or costs for doing so, unless
specifically authorized by federal law.  In the event Employee signs
this Agreement and returns it to the Company in less than the 21-day period
identified above, Employee hereby acknowledges that he has freely and
voluntarily chosen to waive the time period allotted for considering this
Agreement.  Employee acknowledges and understands that revocation must
be accomplished by a written notification to the Company (Attn: David Lorie),
that is received prior to the Effective Date. This Agreement will become
effective after seven (7) days have passed since Employee signed the Agreement,
provided that it is not revoked before that date (the “Effective
Date”).

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    12. No Admission. This
Agreement shall not be in any way construed as an admission by Company that it
has acted wrongfully with respect to Employee or any other person, or that
Employee has any rights whatsoever against Company.

     

    13. Miscellaneous.

     

    13.1. Successors and
Assigns. This agreement shall be binding on the parties and upon their
heirs, administrators, representatives, executors, successors and assigns and
shall inure to their benefit and to that of their heirs, administrators,
representatives, executors, successors and assigns.

     

    13.2. Severability. The
provisions of this Agreement are severable. If any provision is held to be
invalid or unenforceable, it shall not affect the validity or enforceability of
any other provision. A court may modify any otherwise unenforceable clause set
forth herein to render this Agreement enforceable.

     

    13.3. Headings. The
headings of the sections contained in this Agreement are for convenience only
and shall not be deemed to control or affect the meaning or construction of any
provision of this Agreement.

     

    13.4. Counterparts. This
Agreement may be executed in counterparts, and each counterpart shall have the
same force and effect as an original and shall constitute an effective, binding
agreement on the part of each of the undersigned.

     

    13.5. Notices. Any notice
given to a party shall be in writing and shall be deemed to have been given when
delivered personally or sent to by certified or registered mail, postage
prepaid, return receipt requested, or by a nationally recognized courier
service, duly addressed to the party concerned at the address indicated in the
introductory paragraph hereto, or to such changed address as such party may
subsequently give such notice of.

     

    13.6. Governing Law;
Arbitration. This Agreement shall be governed by and construed under the
laws of the State of New York as such laws are applied to contracts made and to
be fully performed entirely within that state between residents of that state.
Any claim, dispute or controversy arising out of this Agreement, the
interpretation, validity or enforceability of this Agreement or the alleged
breach thereof shall be submitted by the parties to binding arbitration by the
American Arbitration Association under its then existing commercial
rules.  The site of the arbitration proceeding shall be in New York
City, or another location mutually agreed to by the parties.

     

    13.7. Entire Agreement;
Modification. This Agreement sets forth the entire agreement between the
parties hereto and supersedes any and all prior oral or written agreements or
understandings between Employee and Company concerning the subject matter of
this Agreement. This Agreement may not be altered, amended or modified, except
by a further written document signed by both parties.

     

    13.8. Voluntary Execution and
Acceptance. This Agreement is executed voluntarily and without any duress
or undue influence on the part or behalf of the parties hereto, with the full
intent of releasing all claims. The parties acknowledge that:

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
      	
              13.8.1.  

            	
              they
      have read this Agreement and are fully aware of its legal and binding
      effect;

            


    

     

    
      	
              13.8.2.  

            	
              the
      terms of this Agreement are the product of mutual negotiation and
      compromise between Employee and
Company;

            


    

     

    
      	
              13.8.3.  

            	
              they
      understand the terms and consequences of this Agreement and of the
      releases it contains and that this Agreement settles, bars, and waives any
      and all claims that the parties have or could possibly have against the
      other party, unless prohibited from releasing such claim by
      law;

            


    

     

    
      	
              13.8.4.  

            	
              they
      have been represented in the preparation, negotiation, and execution of
      this Agreement by legal counsel of their own choice or that they have
      voluntarily declined to seek such counsel EMPLOYEE WAS ADVISED AND
      ENCOURAGED BY COMPANY TO CONSULT WITH AN ATTORNEY OR ANYONE ELSE OF his
      CHOOSING WHO IS NOT EMPLOYED BY
COMPANY.

            


    

     

    Company
and Employee now voluntarily and knowingly execute this Agreement, as of the
date first above.

     

    
      	
              BETAWAVE
      CORPORATION

               

              /s/ Tabreez Verjee

              
                 

              

              By:
      Tabreez Verjee

              Its:  President

               

              Date:
      12/1/09

            	
              Matt
      Freeman

               

              /s/ Matt Freeman

              
                 

              

              Date:
      12/2/09