Payment and Release Agreement
This PAYMENT AND RELEASE AGREEMENT (the "Release Agreement"), dated June 15,
2001 (the "Effective Date"), is entered into by and between IFX CORPORATION (the
"Company"), a Delaware corporation, and XX. XXXXXX XXXXXX (the "Employee")
(collectively, the "Parties" and each a "Party").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Parties entered into an Employment Agreement (the "Employment
Agreement") dated May 24, 1999, as amended, whereby the Company retained the
services of the Employee to, among other things, serve as its Chief Operating
Officer (the "Services");
WHEREAS, Employee desired to voluntarily terminate his employment pursuant
to the voluntary termination provision of Section 6(c) of the Employment
Agreement prior to the termination date of the Employment Agreement;
WHEREAS, in recognition for past services by the Employee and in
satisfaction of any obligations that Company has under the Employment Agreement,
Company desires to make certain payments, transfer certain assets and extend the
period during which certain Company options held by employee may be exercised,
as more fully described below;
WHEREAS, Employee desires to accept such payments and transfers and the
extension of the period for the exercisability of his options, in return for a
general release of any claims which he may have against Company.
NOW, THEREFORE, the Parties hereto agree as follows:
Article 1. The Company and the Employee hereby agree that the total
payments and transfers (the "Payments") to be paid by the Company to the
Employee contemporaneously herewith shall be as follows: a) one (1) Dell
Latitude CSx laptop (serial number: 81XNH01) currently in use by Employee; b) a
severance payment equivalent to sixty-seven and one-half (67.5) days of his
current salary; c) Employee shall continue to receive his current health
benefits for sixty (60) days from the Effective Date; and d) notwithstanding
anything to the contrary contained in the applicable options agreements,
Employee shall have the right to exercise the following vested options listed
below to acquire Company common shares until June 30, 2003. Such options must be
exercised in writing and by tender of the exercise price in cash prior to June
30, 2003 or such options will be forfeited. Any options not listed below or the
unvested portion of any options listed below are hereby forfeited.
Grant Date Strike Price Vested
24-May-99 $ 15.00 10,050
01-Jul-99 $ 8.75 8,308
01-Oct-99 $ 8.75 19,134
01-Dec-99 $ 20.00 6,313
01-Jan-00 $ 8.75 19,225
01-Jan-00 $ 8.75 128,924
12-Jun-00 $ 8.75 71,076
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263,030
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Company represents that the shares issuable pursuant to the valid exercise of
the options listed above will be registered pursuant to a Form S-8 prior to
Employee's exercise of such options. In the event that Company breaches this
obligation and if Employee exercises options (including payment in full of the
exercise price) at a time when the underlying shares are not freely salable
because Company has not
filed the applicable Form S-8, Company shall be obligated to pay Employee the
excess, if any, between the average of the daily high and low of Company stock
on the date the Company receives the completed notice of exercise and the
average of the daily high and low on the first date that Employee can freely
sell the underlying shares by virtue of Form S-8 or otherwise. All payments made
hereunder shall be subject to customary withholding and other employment taxes
required by law.
Article 2. Employee hereby agrees and acknowledges that the above Payments
represent the only payments of any kind that he is entitled to receive from the
Company, or any other Company affiliate, subsidiary, officer, director, agent,
successor, assign, attorney or related company or person (hereinafter
collectively referred to as the "IFX Parties") in relation to the Services or to
any other service provided by the Employee (or any company or person related to
the Employee) to the IFX Parties.
Article 3. Consequently, Employee hereby totally releases and forever and
irrevocably discharges all and each of the IFX Parties from any and all claims,
actions, causes of action, grievances, suits, charges, or complaints of any kind
or nature whatsoever, that he ever had or now has, whether fixed or contingent,
liquidated or unliquidated, known or unknown, suspected or unsuspected, and
whether arising in tort, contract, statute, or equity, before any federal,
state, local, or private court, agency, arbitrator, mediator, or other entity,
regardless of the relief or remedy. Without limiting the generality of the
foregoing, it being the intention of the parties to make this Payment and
Release Agreement as broad and as general as the law permits, this Payment and
Release Agreement specifically includes any and all subject matter and claims
arising from any alleged violation by the IFX Parties under Rule 10b-5 of the
Securities Act of 1933, as amended (15 U.S.C. (S) 78j(b)); the Age
Discrimination in Employment Act of 1967, as amended; Title VII of the Civil
Rights Act of 1964, as amended; the Civil Rights Act of 1866, as amended by the
Civil Rights Act of 1991 (42 U.S.C. (S) 1981); the Rehabilitation Act of 1973,
as amended; the Employee Retirement Income Security Act of 1974, as amended; the
Americans with Disabilities Act; the Family and Medical Leave Act; the Equal Pay
Act; Executive Order 11246; Executive Order 11141; and any other statutory
claim, employment or other contract or implied contract claims (including, but
not limited to, any claims arising under the Employment Agreement, or any stock
option agreement between the Company and Employee), or common law claim for
fraud, wrongful discharge, breach of an implied covenant of good faith and fair
dealing, defamation, or invasion of privacy arising out of or involving his
employment with the Company, the termination of his employment with the Company,
or involving any continuing effects of his employment with the Company or
termination of employment with the Company. Employee further acknowledges that
he is aware that statutes exist that render null and void releases and
discharges of any claims, rights, demands, liabilities, action and causes of
action which are unknown to the releasing or discharging party at the time of
execution of the release and discharge. Employee hereby expressly waives,
surrenders and agrees to forego any protection to which he would otherwise be
entitled by virtue of their existence. Further, Employee hereby waives any
legal, civil, criminal, administrative or any other type of action, whether
contractual, tort, legal or otherwise, that Employee (or any of his heirs,
successors, assigns or affiliates) may have against any of the IFX Parties
Article 4. Employee acknowledges and agrees that notwithstanding the
termination of the employment relationship, the provisions of the Employment
Agreement set forth in Attachment A hereto remain in full force and effect.
Article 5. Employee acknowledges and agrees that he has had the
opportunity to have this Release and Payment Agreement reviewed by the legal
counsel of his choice. This Release Agreement shall be governed by and construed
in accordance with the laws of the State of Florida, USA.
Article 6. This Release Agreement may be executed in one or more
counterparts, and by the different Parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
IN WITNESS WHEREOF, each of the Parties have executed this Release
Agreement or caused to be executed by its duly authorized officer or legal
representative, as of the date written above.
Company: Employee:
/s/ Xxxx Xxxxxxxxxx /s/ Xxxxxx Xxxxxx
---------------------------- -----------------------------------
Signature Signature
Xxxx Xxxxxxxxxx Xxxxxx Xxxxxx
----------------------------- -----------------------------------
Name Name
President 6/21/01
----------------------------- -----------------------------------
Title Date
6/21/01
-----------------------------
Date
ATTACHMENT A
8. Records and Confidential Data.
(a) Employee acknowledges that, in connection with the performance of
his duties during the term of this Agreement, the Company and its affiliates
will make available to Employee, and/or Employee will have access to, certain
Confidential Information (as defined below) of the Company and its affiliates.
Employee acknowledges and agrees that any and all Confidential Information
learned or obtained by Employee during the course of his employment by the
Company or otherwise (including, without limitation, information that Employee
obtained through or in connection with his ownership of equity interests in, or
services as a director of, the Company), whether developed by Employee alone or
in conjunction with others or otherwise, shall be and is the property of the
Company and its affiliates.
(b) The Confidential Information shall be kept confidential by
Employee, shall not be used in any manner which is detrimental to the Company or
any of its affiliates, shall not be used other than in connection with
Employee's discharge of his duties hereunder, and shall be safeguarded by
Employee from unauthorized disclosure.
(c) Following the first to occur of the termination of this Agreement
or Employee's termination hereunder, as soon as possible after the Company's
written request, Employee shall return to the Company all written Confidential
Information which has been provided to Employee and Employee shall destroy all
copies of any analyses, compilations, studies or other documents prepared by
Employee or for Employee's use containing or reflecting any Confidential
Information. Within five (5) business days of the receipt of such request by
Employee, Employee shall, upon written request of the Company, deliver to the
Company a notarized document certifying that such written Confidential
Information has been returned or destroyed in accordance with this Section 8(c).
(d) For the purposes of this Agreement, "Confidential Information"
shall mean all confidential and proprietary information of the Company and/or
its affiliates, including, without limitation, information derived from reports,
investigations, experiments, research, trade secrets, work in progress, drawing,
designs, plans, proposals, requests for proposals, bids, codes, marketing and
sales programs, client lists, client mailing lists, medical, psychological,
academic and other records and reports, supplier lists, financial projections,
cost summaries, payor information, pricing formulae, marketing studies relating
to prospective business opportunities and all other concepts, ideas, materials,
or information prepared for performed for or by the Company and/or any of its
affiliates. For purposes of this Agreement, the Confidential Information shall
not include and Employee's obligations under this Section 8 shall not extend to
(i) information which is generally available to the public without undue expense
or effort, (ii) information obtained by Employee from third persons not under
agreement to maintain the confidentiality of the same and (iii) information
which is required to be disclosed by law or legal process (after giving the
Company prior written notice thereof and an opportunity to contest such
disclosure). Without in any way limiting the foregoing, "Confidential
Information" also includes all information relating to any options or other
awards granted to Employee, pursuant to the Stock Plan or otherwise, including
the amount of any such award, the exercise price and the rate of vesting
thereof.
(e) Employee hereby acknowledges that each subsidiary and affiliate
of Employer is expressly made a third party beneficiary hereto for purposes of
protecting its rights and interests hereunder.
9. Inventions and Other Matters.
(a) Employee agrees that all ideas, inventions, discoveries or
improvements made during the period of Employee's employment with Employer,
including, without limitation, new machines, devices, computer software
(including source code, operating systems and specifications, data, data bases,
files documentation and other materials related thereto), programs, processes,
uses, apparatuses, specialized information relating in any way to or that is
useful in the business or products of Employer or Employer's actual or
demonstrably anticipated research or development, designs or compositions of any
kind that Employee, individually or with others, may originate or develop while
employed by Employer (collectively,
"Inventions"), shall belong to and be the sole property of Employer and shall
constitute works specially ordered or commissioned as "works made for hire"
under the United States Copyright Act and other applicable law. Without limiting
the foregoing, Employee hereby assigns and transfers to Employer all rights of
whatever nature that Employee may have, including, without limitation, any
patent, trade secret, trademark or service xxxx rights (and any goodwill
appurtenant thereto), any rights of publicity and any right, title and interest
in any copyright and any right that may affix under any copyright law now or
hereinafter in force and effect in the United States of America or in any other
country or countries, in and to any Invention. Employee acknowledges and agrees
that Employer shall have the royalty-free right to use in its businesses, and to
make and sell products, processes, programs, systems designs, methods, formulas,
apparatus, techniques, and services derived from any Inventions (whether or not
patentable or copyrightable), as well as all improvements thereof or know-how
related thereto.
(b) For purposes of this Agreement, an Invention shall be deemed to
have been "made during the period of Employee's employment" if, during such
period, the Invention was conceived, in part or in whole, or first actually
reduced to practice. Employee agrees that any patent, copyright or trade xxxx
application filed by or for the benefit of Employee or any of his affiliates
within a year after termination of Employee's employment shall be presumed to
relate to an Invention made during the term of his employment and Employee shall
have the burden of proof to prove otherwise.
(c) This Section 9 shall not apply to an Invention for which no
equipment, supplies, facilities or Confidential Information (as defined below)
of Employer was used and that was developed entirely on Employee's own time,
unless (i) the invention relates in any way to or is useful in the business or
products of Employer, or Employer's actual or demonstrably anticipated research
or development, or (ii) results from any work performed by Employee for or on
behalf of Employer.
(d) Employee agrees, without further consideration, to (i) promptly
disclose each such Invention to Employer, to Employee's immediate supervisor and
to such other individuals as Employer may direct, (ii) execute and to join
others in executing such applications, assignments and other documents as may be
necessary or convenient to vest in Employer, or its designee, full title to each
such Invention and as may be necessary or convenient to obtain United States and
foreign patents and copyrights thereon, to the extent Employer may so choose in
its sole discretion, (iii) testify in any legal proceeding relative to such
Invention whenever requested to do so by Employer, and (iv) furnish all facts
relating to such Inventions or the history thereof.
(e) Employee agrees that he will not at any time, except as
authorized or directed by Employer, publish or disclose any information or
knowledge concerning any Inventions.
10. Non-Competition.
(a) Employer and Employee recognize that Employee has been retained to
occupy a position that constitutes part of the professional, management and
executive staff of Employer, whose duties will include the formulation and
execution of management policy. Employee, for and in consideration of the
payments, rights and benefits provided herein, agrees that so long as he is
employed by Employer and, if Employer terminates his employment for Cause or if
Employee voluntarily terminates his employment with Employer, for a period of
one (1) year thereafter, Employee shall not (i) work, (ii) assist, (iii) own any
interest, directly or indirectly and whether individually or as a joint
venturer, partner, member, officer, director, shareholder, consultant, employee
or otherwise, in or (iv) make a financial investment, whether in the form of
equity or debt, in any business that is directly or substantially competitive
with the Business in the United States, Latin America or in any other market in
which Employer is conducting the Business at the time Employee's employment with
Employer is terminated, with respect to Employer's clients or customers.
(b) Notwithstanding the foregoing, nothing herein shall prohibit
Employee from holding five percent (5%) or less of any class of voting
securities of any entity whose equity securities are listed on a national
securities exchange or regularly traded in the over-the-counter market and for
which quotations are readily available on the National Association of Securities
Dealers Automated Quotation system.
(c) Upon the termination of Employee's employment with Employer, and
for one (1) year thereafter, Employee shall immediately notify Employer of each
employment or agency relationship entered into by Employee, and each
corporation, proprietorship or other entity formed or used by Employee, the
business of which is directly or indirectly, similar to or in competition with
the Business. The provisions of this Section 10 shall survive termination of
this Agreement for any reason.
(d) Employee agrees that the restrictions contained in this Section 10
are reasonable as to time and geographic scope because of the nature of the
Business and Employee agrees, in particular, that the geographic scope of this
restriction is reasonable because companies in the same industry as the
Business, compete on a nationwide basis. Employee acknowledges that Employer is
in direct competition with all other companies that provide services and
products similar to Employer's products and services throughout the United
States, Latin America and other markets in which Employer may be conducting the
Business at the time Employee's employment with Employer is terminated, and
because of the nature of the Business, Employee agrees that the covenants
contained in this Section 10 cannot reasonably be limited to any smaller
geographic area.
11. Non-Solicitation and Non-Interference.
(a) Employee acknowledges that Employer has invested substantial time
and effort in assembling its present staff of personnel. Employee agrees that so
long as he is employed by Employer and, if Employer terminates his employment
for Cause or if Employee voluntarily terminates his employment with Employer,
for a period of one (1) year thereafter, Employee shall not either directly or
indirectly employ, solicit for employment, or advise or recommend to any other
person that such other person employ or solicit for employment, any of
Employer's employees.
(b) Employee acknowledges that all customers of Employer, which
Employee has serviced or hereafter services during Employee's employment by
Employer and all prospective customers from whom Employee has solicited or may
solicit business while in the employ of Employer, shall be solely the customers
of Employer. Employee agrees that so long as he is employed by Employer and, if
Employer terminates his employment for Cause or if Employee voluntarily
terminates his employment with Employer, for a period of one (1) year
thereafter, Employee shall not either directly or indirectly solicit business,
as to products or services competitive with the Business of Employer, from any
of Employer's customers with whom Employee had contact during his employment
with Employer.
(c) Employee agrees that so long as he is employed by Employer and, if
Employer terminates his employment for Cause or if Employee voluntarily
terminates his employment with Employer, for a period of one (1) year
thereafter, Employee shall not either directly or indirectly interfere with any
relationship between Employer and any of its suppliers, clients or employees.
Employee agrees that during such one (1) year period, he will not influence or
attempt to influence any of the customers or clients of Employer not to do
business with Employer.
(d) Employee agrees that the restrictions contained in this Section 11
are reasonable as to time and geographic scope because of the nature of the
Business and Employee agrees, in particular, that the geographic scope of this
restriction is reasonable because companies in the same industry as the Business
compete on a nationwide basis. Employee acknowledges that Employer is in direct
competition with all other companies that provide services and products similar
to Employer's products and services on an outsourced basis throughout the United
States, Latin America and other markets in which Employer may be conducting the
Business at the time Employee's employment with Employer is terminated and,
because of the nature of the Business, Employee expressly agrees that the
covenants contained in this Section 11 cannot reasonably be limited to any
smaller geographic area.
