SEPARATION AND RELEASE AGREEMENT
WorldPort Communications, Inc., on behalf of itself and its related entities,
and their shareholders, directors, officers, employees, agents, contractors, and
attorneys, and their predecessors, successors, and assigns ("Employer") and Xxxx
Xxxxxx ("Employee") enter into this Separation and Release Agreement
("Agreement"). In consideration of the promises made among the parties and other
good and valuable consideration as follows:
1. The Employee hereby resigns from all officer, director and other positions
and employment with Employer and its affiliates, effective January 4, 2002
("Separation Date").
2. In consideration for Employee's performance of the covenants contained in
this Agreement and in reliance upon Employee's representations contained in
this Agreement, Employer agrees to provide the following:
a. Employer shall pay Employee $255,000, subject to usual withholdings
required by law, representing all compensation to which Employee may
be entitled, plus additional compensation to which Employee is not
otherwise entitled. This payment will be made to Employee on the
business day following the Effective Date (as defined in Section 7).
b. Employee shall be eligible for continued insurance coverage through
the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA")
for a period of up to eighteen (18) months at the Employee's expense.
Employer will pay the cost of such coverage for the first 12 months
provided that (i) Employee uses his best efforts to secure similar
benefits from another employer and (ii) Employer shall not be
required to pay the cost of such coverage after comparable benefits
are available to Employee from another employer.
c. In accordance with legal requirements, Employee will be paid
Employee's earned wages and six (6) days of accrued and unused
vacation due and owing Employee regardless of whether this Agreement
is signed.
d. Your laptop, and the Microsoft Office software currently on your
laptop.
Employee shall not accrue further benefits under Employer's retirement
benefit plan(s) or employee welfare benefit plan(s) after Employee's
Separation Date. No severance pay shall be considered "earnings" under any
pension plan sponsored by Employer.
3. Except as may be required by law, administrative or judicial process,
Employee shall not disclose to anyone (without the prior written consent of
Employer) any information regarding the financial condition, contractual
arrangements, internal affairs, or governance of Employer, its related and
affiliated entities, shareholders, directors, officers, employees, agents
or attorneys (past, present and future) which is non-public, confidential,
or proprietary or
which would in any way injure the reputation or business advantage of any
of the foregoing persons or entities. Employee appreciates and agrees to
uphold any continuing obligations under the law and any confidentiality
and/or invention agreement Employee may have entered into.
4. Except as may be required by law, administrative or judicial process,
Employee agrees that he/she will not, without the prior written consent of
Employer, directly or indirectly disclose to any individual, corporation,
or other entity (other than Employer, its officers, directors, or employees
entitled to such information) or use for Employee's own or any other person
or entity's benefit, any information, whether or not reduced to written or
other tangible form which:
a. is not generally known to the public or in the industry;
b. has been treated by Employer or any of its related or affiliated
entities as confidential or proprietary; and
c is of competitive advantage to Employer or any of its related or
affiliated entities and in which Employer or any of its related or
affiliated entities has a legally protectable interest;
(such information being referred to in this paragraph as "Confidential
Information"). Confidential Information which becomes generally known to
the public or in the industry (other than through Employee), or in the
confidentiality of which Employer and any of its related or affiliated
entities cease to have a legally protectable interest, shall cease to be
subject to the restrictions of this paragraph.
5. Employee represents that he will deliver to Employer all of Employer's
data, worksheets, forms, papers, books, notebooks, drawings, records,
phone, travel and credit cards, tools, equipment, keys, computer diskettes,
computer programs, databases or like written, printed or electronic media
or materials in Employee's possession or control and all copies thereof,
and all other property of Employer and its related and affiliated entities,
upon the cessation of Employee's employment with Employer, other than
Employee's laptop and the Microsoft Office software currently on Employee's
laptop, which Employee shall be entitled to keep, provided that the
Employer shall be entitled to delete all data and all other software from
such laptop. The ownership and right of control of all papers, reports,
books, records, programs, data, keys, equipment, hardware, software, file
back-up materials, diskettes, tapes, passwords or other such materials
prepared by, for or on behalf of Employee or provided to Employee by
Employer during the course of Employee's employment with Employer are
vested exclusively in Employer and remain the exclusive property of
Employer.
6. Employee agrees to cooperate with the Released Parties (as defined below)
in the truthful and honest prosecution and/or defense of any claim in which
the Released Parties may have an interest (subject to reasonable
limitations concerning time and place), which may include without
limitation making himself available to participate in any proceeding
involving any of the Released Parties, allowing himself to be interviewed
by representatives of the Released
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Parties without asserting or claiming any privilege against the Released
Parties, appearing for depositions and testimony without requiring a
subpoena and without asserting or claiming any privilege against the
Released Parties, and producing and/or providing any documents or names of
other persons with relevant information without asserting or claiming any
privilege against the Released Parties; provided that, Employer shall pay
Employee's reasonable expenses incurred at Employer's prior and specific
request.
7. Except for a claim based upon a breach of this Agreement, Employee, on
behalf of Employee and Employee's heirs and personal representatives,
hereby fully releases the Released Parties (as defined below) from any and
all claims, suits, debts, damages, judgments, liabilities, demands, actions
or causes of action of any kind or nature whatsoever, including costs and
attorneys' fees, whether the underlying facts are known or unknown, which
Employee has had or now claims, pertaining to or arising out of Employee's
employment with Employer, or separation therefrom, including, but not
limited to, any and all claims for discrimination or harassment, breach of
contract, fraud, wrongful discharge, misrepresentation, defamation,
violation of public policy, breach of the implied covenant of good faith
and fair dealing, personal injury, emotional distress, sexual harassment,
all liabilities for the payment of any sums for accrued earnings, bonuses
or severance pay, any employee benefits other than those specifically
referenced above, and attorneys' fees, breach of express or implied
contract, infliction of emotional distress, or any other tort, or any claim
under any federal, state, or local statutes, regulations or common law,
including, without limitation, Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C.ss.2000e et. seq., 42 U.S.C.ss.1981, the Age
Discrimination in Employment Act, as modified by the Older Workers Benefit
Protection Act, the Civil Rights Act of 1991, the Family and Medical Leave
Act, the Americans with Disabilities Act, the Employee Retirement Income
Security Act, the Worker Adjustment and Retraining Notification Act, the
Vocational Rehabilitation Act of 1973, as amended, the Fair Labor Standards
Act, as amended, and the Illinois Human Rights Act. Notwithstanding the
above, (a) the Employee's release does not apply to any rights which are
not waivable by law (such as any rights to vested pension benefits, workers
compensation benefits or unemployment compensation benefits) and it does
not apply to any rights Employee may have solely as a result of his status
as a shareholder of Employer, and (b) if a claim is brought against
Employee by an independent third party that is not affiliated with any of
the Released Parties and Employer no longer exists or is unable of honor
its indemnfications obligations under Section 11 of this Agreement and
Employee is not, directly or indirectly, being indemnified (whether
pursuant to insurance or otherwise) as required by Section 11 of this
Agreement, then the terms of this Section 7 shall not prohibit Employee
from pursuing any related claim that he may have against the Employer's
agents and advisors.
For purposes of this release, the phrase "Released Parties" shall include
Employer, and each of its related or affiliated entities, divisions or
subsidiaries, and all predecessors, successors and assigns thereof and each
of their shareholders, partners, principals, directors, officers, trustees,
employees, agents and attorneys, past, present or future. This release
shall be for the benefit of the Released Parties and shall run to and be
binding upon Employee and Employee's heirs and assigns.
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The following provisions are applicable to and made a part of this
Agreement and the foregoing general release and waiver:
a. Employee specifically releases and waives Employer from all rights and
claims which Employee may have under the Age Discrimination in
Employment Act of 1967 ("ADEA"), as amended by the Older Workers
Benefits Protection Act, which arose prior to the execution of this
Agreement, including but not limited to, any claim relating to
Employee's separation, or the severance pay program. This Agreement
does not waive any rights or claims that may arise under the ADEA after
the date Employee signs this Agreement.
b. Employee hereby acknowledges that, in exchange for this general release
and waiver hereunder, Employee has received separate consideration
beyond that to which Employee is otherwise entitled under Employer
policy or applicable law, and that without such release and covenant
not to xxx, no agreement would have been reached by the parties.
Employee understands and acknowledges the significance and consequences
of this release and this Agreement.
c. Employer advises Employee to consult with an attorney of Employee's
choosing prior to executing this Agreement, which contains a general
release and waiver.
d. Employee has been provided at least forty-five (45) days from the date
of presentment to consider whether or not to execute this Agreement and
waive and release all claims and rights arising under the ADEA.
e. If Employee executes this Agreement, Employee has a further period of
seven (7) days after such date in which to revoke the Agreement and the
Agreement shall not become effective or enforceable until the day after
the Revocation Period expires ("Effective Date"). However, if Employee
does not execute (or executes and later timely revokes) this Agreement,
then Employee will not receive the payments and benefits described in
Paragraph 2 above (except for paragraph 2(c)).
f. Exhibit "A," which is attached hereto and incorporated herein as a part
of this Agreement, contains the following information: the group of
individuals covered by the severance pay programs; the applicable time
limits for the severance pay program; the job titles and ages of all
individuals who are eligible for the severance pay program; and the
ages of all individuals in the same job classifications or organization
units who are not eligible for the severance pay program.
8. To the maximum extent permitted by law, Employee covenants not to xxx or to
institute or cause to be instituted any action in any federal, state or
local agency or court against any of the Released Parties, including but
not limited to, any of the claims released in Paragraph 7 of this
Agreement. If Employee breaches the terms of the release and covenant not
to xxx, Employer shall be entitled to recover, in addition to any other
relief available to Employer, its
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costs, including reasonable attorney's fees caused by such breach, as well
as any benefits paid out under paragraph 2.
9. Employee agrees that any breach by Employee of Paragraphs 3 through 8 of
this Agreement will cause Employer great injury which will be difficult, if
not impossible, to measure and that such injury will be immediate and
irreparable for which Employer will have no adequate remedy at law.
Consequently, Employee agrees that any material breach by Employee of the
foregoing paragraphs of this Agreement shall entitle Employer to injunctive
relief, and shall entitle Employer to cancel its obligations under this
Agreement. Employee agrees that, in the event of a breach by Employee of
the foregoing provisions of this Agreement, Employer would be more harmed
by the denial of an injunction or other equitable relief than Employee
would be harmed by the issuance of an injunction or other equitable relief
and that the public interest would be furthered by the issuance of an
injunction or other equitable relief to prevent further or additional
breach of the foregoing provisions of this Agreement.
10. Except for a claim based upon a breach of this Agreement, Employer, on
behalf of itself and its successors and assigns, hereby releases the
Employee from any and all known and disclosed claims, suits, debts,
damages, judgments, liabilities, demands, actions or causes of action of
any kind or nature which Employer has had or now has against Employee
pertaining to or arising out of Employee's employment with Employer. This
release does not, however, include claims, suits, debts, damages,
judgments, liabilities, demands, actions or causes of action unknown or
undisclosed to the Employer's Chief Executive Officer as of the date
hereof.
11. To the fullest extent permitted by the Employer's Certificate of
Incorporation and By-Laws and by the Delaware General Corporation Law, in
each cases as currently in effect, the Employer will indemnify the Employee
for any judgments, fines, amounts paid in settlement and reasonable
expenses, including attorneys' fees, incurred by the Employee in connection
with the defense of any lawsuit or other claim to which he is made a party
by reason of being or having been an officer, director or employee of the
Employer or any of its subsidiaries. In addition, the Employee shall be
entitled to the protection of any director and officer liability insurance
policies the Employer may elect to maintain generally for the benefit of
its directors and officers to the maximum extent of coverage available for
any such officer or director.
12. Employee agrees to consult with the Employer from time to time regarding
historical Employer matters (subject to reasonable limitations concerning
time and place). The Employer shall not be required to pay any additional
consideration for such services.
13. Employee agrees that neither this Agreement nor performance hereunder
constitutes an admission by Employer of any violation of any federal, state
or local law, regulation, or common law, or any breach of any contract or
any other wrongdoing of any type.
14. Employee agrees that this Agreement constitutes the entire understanding
between the parties with reference to the subject matter of this Agreement
and that all prior negotiations and understandings, verbal or written,
between Employer and Employee, relating to the items and
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things referred to in this Agreement have been merged herein. No
modification of this Agreement shall be valid unless signed by the party
against whom such modification is sought to be enforced. This Agreement
shall be construed in accordance with the laws of the State of Illinois.
15. It is intended that the provisions of this Agreement shall be enforced to
the fullest extent permissible in each jurisdiction in which enforcement is
sought. The parties hereby expressly empower a court of competent
jurisdiction to modify any term or provision of this Agreement to the
extent necessary to comply with existing law and to enforce this Agreement
as modified. In addition, if any provision, section, subsection or other
portion of this Agreement, other than Paragraphs 7 or 8, shall be
determined by any court of competent jurisdiction to be invalid, illegal or
unenforceable in whole or in part, and such determination shall become
final, such provision or portion shall be deemed to be severed or limited,
but only to the extent required to render the remaining provisions and
portions of this Agreement enforceable. This Agreement as thus amended
shall be enforced so as to give effect to the intention of the parties
insofar as that is possible.
16. This Agreement shall be binding upon, and inure to the benefit of, Employer
and its successors and assigns and any person acquiring, whether by merger,
consolidation, purchase of assets or otherwise, all or substantially all of
Employer's assets and business.
17. Employee acknowledges that he has carefully read and fully understands the
terms and provisions of this Agreement and all of his rights and
obligations thereunder, has been or has had the opportunity to be
represented by legal counsel of Employee's choosing, and that execution of
this Agreement is voluntary, and in no way coerced.
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IN WITNESS WHEREOF, the parties have executed this Separation and Release
Agreement on the date written below.
WORLDPORT COMMUNICATIONS, INC. EMPLOYEE
By: /S/ X. X. Xxxx /S/ Xxxx X. Xxxxxx
-------------------------------- -------------------------------------
(Signature) (Signature)
Its: Xxxxxxxx X. Xxxx Xxxx X. Xxxxxx
------------------------------- -----------------------------------
(Printed Name)
Date: January 15, 2002 Date: January 15, 2002
---------------------------- -----------------------------
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EXHIBIT A
Age of Age of
Eligible Ineligible
Department Job Title Employee Employee
---------- --------- -------- --------
Finance Assistant Controller N/A 29
Finance Director of Corporate Finance 41 None
Finance Manager-Financial Planning & Analysis 30 None
Finance Manager - Accounting Operations 34 None
Finance Chief Financial officer 44 None
Finance Corporate Controller N/A 36
Finance Executive Administrator 40 None
Finance Senior Accountant 46 None
