Employment Resignation Agreement and Release
This
Employment Resignation Agreement and Release (the “Agreement”) is entered into
effective as of January 3, 2006, between Eagle Broadband, Inc. (the “Company”)
and Xxxx Xxxxxxx (the “Employee”).
1. Purpose
of Agreement.
The
purpose of this Agreement is to accept Employee’s resignation, set forth the
terms of the Employee’s severance from employment with the Company, to resolve
fully any and all obligations arising out of his employment and severance from
employment, and to protect the Company’s legitimate interest in maintaining the
confidentiality of information pertaining to its business plans and operations
known to, or possessed by, the Employee.
2. Resignation
from Employment and Termination of Employment Agreement.
A. Employee
hereby resigns as an employee of the Company effective January 3, 2006 (the
“Resignation Date”). The Company accepts Employee’s resignation, under the terms
further described herein, and waives only any requirement or time period for
notice thereof so that the same may be effective on the agreed Resignation
Date.
B. The
Company and Employee jointly agree that, as of the Resignation Date, the
Employment Agreement of November 8, 2004 between the parties shall become null
and void, with the sole exception of Employee’s obligation, under the Employment
Agreement and at common law, to protect the Company’s confidential and
proprietary information and to return all of the Company’s property, documents
and information shared with Employee, as more fully set forth in Sections 4.1
through 4.3 of the Employment Agreement.
C.
The
Company and Employee further jointly agree that, as of the Resignation Date,
each party’s obligations under the Employment Agreement of November 8, 2004
have, with the exception of the continuing obligations set forth in Sections
4.1
through 4.3 of the Employment Agreement, been fully satisfied.
3. Consideration
and Severance.
A. In
consideration of the Employee’s prior service to the Company, the release of all
claims that may exist against the Company in connection with his employment
as
more specifically set forth below in Section 6, and the Employee’s performance
of or compliance with the obligations set forth below in Section 4, and
provided that the Employee complies with all other terms and conditions of
this
Agreement and the continuing obligations set forth in Sections 4.1 through
4.3
of the Employment Agreement, the Company agrees that:
i. The
Company will pay Employee six (6) months of additional compensation, equal
to
$100,000.03, which will be paid according to the following schedule. The
payment
dates listed below represent the Company’s normal “paydays” and the payments
will be made to Employee via direct deposit, if possible. The following payments
do not include any amounts related to Employee’s final paycheck for the pay
period beginning on December 26, 2005, and ending on the Resignation
Date.
|
Payday
|
Amount
|
||
| January 12, 2006 | $ |
30,769.24
|
|
| March 9, 2006 |
7,692.31
|
||
| March 23, 2006 |
7,692.31
|
||
| April 6, 2006 |
7,692.31
|
||
| April 20, 2006 |
7,692.31
|
||
| May 4, 2006 |
7,692.31
|
||
| May 18, 2006 |
7,692.31
|
||
| June 1, 2006 |
7,692.31
|
||
| June 15, 2006 |
7,692.31
|
||
| June 29, 2006 |
7,692.31
|
||
| Total |
100,000.03
|
||
Employee
acknowledges and agrees that the foregoing payments will be subject to
all
legally required state and federal tax deductions and withholdings;
ii. In
addition to the foregoing payments, the Company will provide Employee a
one-time
payment of $4,102.18, which the Company and Employee agree is the total
value of
Employee’s accrued and unused vacation time of 42.66 hours as of the Resignation
Date. Such payment will be made on January 12, 2006, together with the
first
payment listed above. Employee acknowledges and agrees that this payment
shall
be subject to all legally required state and federal tax deductions and
withholdings. Employee further acknowledges and agrees that he is not entitled
to, and will not be paid, for any other type of compensatory, sick or other
accrued “time off”;
iii. Employee
will be reimbursed at the rate of $208 per month for health care and dental
insurance premiums covering the period beginning January 4, 2006, and ending
June 30, 2006. Employee understands and agrees that he will be responsible
for
payment of such premiums, and that the Company will promptly reimburse
Employee
at the abovementioned rate upon receiving a copy of the premium invoice
from
Employee.
B. Employee
acknowledges that the rights and payments provided in
Section 3:
i. represent
valuable consideration not otherwise required to be paid or provided by
the
Company in connection with the cessation of his employment and that his
release
of claims within Section 6 and his agreement to comply with the obligations
of this Agreement, including those listed in Section 4 of this agreement,
are
provided in return for this consideration;
ii. exceed,
and therefore shall be in lieu of, any and all claims for additional severance
pay, wages, bonus, salary, and sick leave pay or other compensation, or
benefits, or claims of damages he may have as of his Resignation Date
except the rights Employee may have to obtain continued insurance coverage
under
COBRA;
iii. arise
solely out of the terms of this Agreement and are not part or evidence of
any
Company severance pay plan or other prior legal obligation of the
Company;
iv. are
subject to Employee’s compliance with all of his obligations hereunder,
including but not limited to, the confidentiality, non-solicitation and
the
other obligations of Employee provided in Section 4 hereof;
and
C. The
Company acknowledges that its promises contained in this Agreement are
for good
and valuable consideration.
4. Confidentiality,
Non-Solicitation; Non-Disparagement and Cooperation.
A. Definitions.
For
purposes of this Agreement, “Confidential Information” means any information,
knowledge or data of any nature and in any form (including information
that is
electronically transmitted or stored on any form of magnetic or electronic
storage media) relating to the past, current or prospective business or
operations of the Company that, at the time or times concerned, is not
generally
known to persons engaged in businesses similar to those conducted or
contemplated by the Company, (but includes such information known by such
persons through a violation of an obligation of confidentiality to the
Company),
whether produced by the Company or any of their consultants, agents or
independent contractors or by Employee, and whether or not marked confidential
including, without limitation, information relating to the Company’s services,
business plans, business acquisitions, processes, research and development
methods or techniques, training methods and other operational methods or
techniques, quality assurance procedures or standards, operating procedures,
files, plans, specifications, proposals, drawings, charts, graphs, support
data,
trade secrets, purchasing methods or practices, distribution and selling
activities, consultants’ reports, marketing and engineering or other technical
studies, maintenance records, employment or personnel data, marketing data,
strategies or techniques, financial reports, budgets, projections, cost
analyses, price lists, formulae and analyses, employee lists, proprietary
computer software, and internal notes and memoranda relating to any of
the
foregoing.
B. Confidentiality.
Employee agrees, generally not to violate the confidentiality of the
Company which he obtained during his employment and, in this regard,
specifically agrees:
i. not
to
communicate, divulge or make available to any person or entity (other than
the
Company) any Confidential Information which shall have been obtained by
Employee
during Employee’s employment, except upon the prior written authorization of the
Company or as may be required by law or legal process; and
ii. to
deliver promptly to the Company any Confidential Information in his
possession, including any duplicates thereof and any notes or other records
Employee has prepared with respect thereto. In the event that the provisions
of
any applicable law or the order of any court would require Employee to
disclose
or otherwise make available any Confidential Information, Employee shall
give
the Company prompt prior written notice of such required disclosure and
an
opportunity to contest the requirement of such disclosure or apply for
a
protective order with respect to such Confidential Information by appropriate
proceedings.
C. Employee
will not, for a period of one year immediately following the Resignation
Date,
directly or indirectly, call upon any person who is, at that time, an
employee
of the Company for the purpose or with the intent of enticing such employee
away
from or out of the employ of the Company.
D. Employee
agrees not to make any public or private remarks disparaging the conduct
or
character of the Company, or any of its parents or their affiliates,
agents,
employees, officers, directors, successors or assigns. The Company agrees
that
its officers and directors will not make any public or private statement
that
disparages the Employee. If the Company is contacted regarding Employees’
employment with the Company, the Company will verify dates of employment,
positions held and last salary and will confirm that Employee’s employment ended
by Employee’s resignation.
5. Injunctive
Relief.
Employee acknowledges that a breach by Employee of Section 4 of this
agreement
would cause immediate and irreparable harm to the Company for which an
adequate
monetary remedy does not exist; hence, Employee agrees that in the event
of a
breach or threatened breach by Employee of the provisions of Section
4 of this
Agreement, the Company shall be entitled to injunctive relief restraining
Employee from such violation without the necessity of proof of actual
damage or
the posting of any bond, except as required by non-waivable, applicable
law.
Nothing herein, however, shall be construed as prohibiting the Company
from
pursuing any other remedy at law or in equity to which the Company may
be
entitled under applicable law in the event of a breach or threatened
breach of
this Agreement by Employee, including, without limitation the recovery
of
damages and/or costs and expenses, such as reasonable attorneys’ fees, incurred
by the Company as a result of any such breach. In addition to the exercise
of
the foregoing remedies, the Company shall have the right upon the occurrence
of
any such breach to cancel any unpaid benefits or severance otherwise
due to
Employee. In particular, Employee acknowledges that the payments and
benefits
provided hereunder are conditioned upon Employee fulfilling any confidentiality,
return of property, non-disparagement, cooperation or non-solicitation
covenants
contained in this Agreement. In the event Employee shall at any time
materially
breach any confidentiality, return of property, non-disparagement, cooperation,
non-competition or non-solicitation obligations contained in this Agreement,
the
Company may suspend or eliminate all payments and benefits under Section 4
during the period of such breach. Employee acknowledges that any such
suspension
or elimination of payments and benefits would be an exercise of the Company’s
right to suspend or terminate its performance hereunder upon Employee’s breach
of this Agreement; such suspension or elimination of payments would not
constitute, and should not be characterized as, the imposition of liquidated
damages.
6. Waiver
and Release by Employee.
In
consideration of the Company’s agreement to enter into and to provide the terms
of this Agreement, Employee hereby and forever, irrevocably and unconditionally,
waives and releases any and all rights, claims and causes of action against
the
Company of whatever kind or nature, known or unknown, asserted or unasserted,
that may have arisen prior to or that may exist as of the date of Employee’s
execution and acceptance of this Agreement. It is expressly understood
and
agreed that the claims covered by Employee’s release include, but are not
limited to, any and all claims or rights arising or that could be asserted
under
any statutory or common law theory including, but not limited to, Title
VII of
the Civil Rights Act of 1964, as amended; the Age Discrimination in Employment
Act of 1967, as amended, including the Older Workers Benefit Protection
Act of
1990; the Civil Rights Act of 1866, as amended; the Civil Rights Act
of 1991;
the Americans with Disabilities Act of 1990; the Workers Adjustment and
Retraining Notification Act of 1988; the Pregnancy Discrimination Act
of 1978;
the Employee Retirement Income Security Act of 1974, as amended; the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended; the
Family
and Medical Leave Act of 1993; the Fair Labor Standards Act; the Occupational
Safety and Health Act; the Texas Labor Code; claims in connection with
workers’
compensation or “whistle blower” statutes; claims in contract, tort, defamation,
slander, wrongful termination; or claims under any other federal, state,
or
local statute, law, rule or regulation. In addition, it is understood
and agreed
that, by this Agreement, Employee waives any claims he may have against
the
Company based on any other theory of liability, statutory or non-statutory,
in
contract or in tort, including, but not limited to, claims for wrongful
or
constructive discharge, breach of any express or implied employment contract
or
agreement, breach of any covenant of good faith and fair dealing, fraud,
defamation, or any personal or emotional injury. It is further understood
and
agreed that the parties covered by Employee’s release include the Company’s
present and former shareholders, officers, directors, employees, agents,
insurers, assigns, predecessors, and successors, and that any reference
to the
Company in this Agreement is understood to include all of the foregoing
persons
or entities.
Employee
represents he has not filed, and will not in the future file, participate
in, or
cause to be filed on his behalf, any action, lawsuit, claim or charge
against
the Company with any state or federal court, or local, state, or federal
agency,
arising out of or related to his Employment Agreement or his employment
with the
Company, or the cessation of such employment.
If
any
state or federal agency assumes jurisdiction of any complaint, charge
or
grievance arising out of the Employment Agreement, employment or cessation,
Employee will direct the agency to withdraw from the matter and Employee
will
not cooperate or participate in any investigation or prosecution of any
matter
or action, except to the extent specifically required by subpoena or
law.
Employee further specifically waives any right he may have to collect
damages or
other compensation as a result of any such complaint, charge or
grievance.
7. Review
and Consultation; Information Provided to Employee.
It is
understood and agreed that Employee has entered into and executed this
Agreement
voluntarily and that such execution by Employee is not based upon any
representations or promises of any kind made by the Company or any of
its
representatives, except as expressly written in this Agreement. Employee
further
acknowledges that he has read and fully understands each paragraph of
this
Agreement, that he was advised in writing by the Company to consult with
an
attorney prior to executing this Agreement, and that he has availed himself
of
legal or other counsel to the full extent he desires before deciding
whether to
enter into this binding agreement.
Employee
also acknowledges that has considered this Agreement to the full extent
that he
desires. Employee agrees that this Agreement is valid, fair, adequate
and
reasonable, is with his full knowledge and consent, was not procured
through fraud, duress or mistake and has not had the effect of misleading,
misinforming or failing to inform him.
Employee
acknowledges that payments and benefits under this Agreement are not
an
admission by the Company that it engaged in any wrongful or unlawful
act, that
it violated any federal or state law or regulation or that it otherwise
owes
Employee any of the payments or other consideration offered herein.
Employee acknowledges that the Company and Employee contemplate an unequivocal,
complete and final dissolution of the employment relationship. Employee
acknowledges that this Agreement does not create any right on his part to
be rehired by the Company and Employee hereby waives any right to future
employment by the Company.
Finally,
Employee agrees and acknowledges that the consideration provided under
this
Agreement is in addition to any other payments, benefits or other things
of
value to which he is entitled and that he would not be entitled to any
of the
consideration provided under this Agreement, in the absence of his
acceptance of these terms and execution of this Agreement.
8. Binding
Effect.
A. This
Agreement shall be binding upon, and inure to the benefit of, the Company
and
any of its successors or assigns.
B. This
Agreement is personal to the Employee and shall not be assignable by
the
Employee without the express, written consent of the Company (there being
no
obligation to give such consent) other than such rights or benefits as
are
transferred by will or the laws of descent and distribution. Any and all
payments required under this agreement shall cease upon Employee’s death and do
not inure to the benefit of his estate, trust or any heirs, except as
specifically required by law.
C. The
Company shall require any successor to or assignee of (whether direct
or
indirect, by purchase, merger, consolidation or otherwise) all or substantially
all of the assets or businesses of the Company (i) to assume
unconditionally and expressly this Agreement, and (ii) to agree to perform
all of the obligations under this Agreement in the same manner and to
the same
extent as would have been required of the Company had no assignment or
succession occurred, such assumption to be set forth in a writing reasonably
satisfactory to the Employee. In the event of any such assignment or
succession,
the term “Company” as used in this Agreement shall refer also to such successor
or assignee.
9. Notices.
All
notices provided for or required hereunder must be in writing and shall
be
deemed to have given upon receipt of delivery by: (a) hand (against a
signed receipt therefor), (b) certified mail, postage prepaid, return
receipt requested, (c) a nationally recognized overnight courier service
(against a signed receipt therefor) or (d) fax transmission with
confirmation of proper receipt. All such notices must be addressed as
follows:
If to the Company, to:
Xxxx Xxxxx, Corporate Counsel
Eagle
Broadband, Inc.
000
Xxxxxxxxxx Xxxxx
Xxxxxx
Xxxx, Xxxxx 00000
If to the Employee,
to:
Xxxx
Xxxxxxx
0000
Xxxx
Xx., #0X
Xxxxxxx,
Xxxxx 00000
or
such
other address as to which any party hereto may have notified the other
in
writing.
10. Governing
Law and Mandatory Venue.
This
Agreement shall be construed and enforced in accordance with and governed
by the
internal laws of the State of Texas without regard to principles of conflict
of
laws. The Company and Employee expressly agree that the sole and exclusive
venue
for any action to construe or enforce this Agreement shall be within
Xxxxxx
County, Texas and that no action may be brought or maintained in any
other
venue.
11. Severability.
If any
term or provision of this Agreement or the application thereof to any
person or
circumstance, shall at any time or to any extent be invalid, illegal
or
unenforceable in any respect as written, Employee and the Company intend
that
any court construing this Agreement shall modify or limit such provision
temporally, spatially or otherwise so as to render it valid and enforceable
to
the fullest extent allowed by law. Any such provision that is not susceptible
of
such reformation shall be ignored so as to not affect any other term
or
provision hereof, and the remainder of this Agreement, or the application
of
such term or provision to persons or circumstances, other than those
as to which
it is held invalid, illegal or unenforceable, shall not be affected thereby
and
each term and provision of this Agreement shall be valid and enforced
to the
fullest extent permitted by law.
12. Waiver
of Breach.
The
waiver by either party of a breach of any provision of this Agreement
shall not
operate or be construed as a waiver of any subsequent breach
thereof.
13. Remedies
Not Exclusive.
No
remedy specified herein shall be deemed to be such Company and Employee’s
exclusive remedy, and accordingly, in addition to all of the rights and
remedies
provided for in this Agreement, the Company and Employee shall have all
other
rights and remedies provided to them by applicable law, rule or
regulation.
14. Survival.
The
rights and obligations of the Company and Employee contained in this
Agreement
shall survive the termination of the Agreement. Following the Resignation
Date,
each party shall have the right to enforce all rights, and shall be bound
by all
obligations, of such party that are continuing rights and obligations
under this
Agreement.
/s/
Xxxx Xxxxxxx
XXXX
XXXXXXX
EAGLE
BROADBAND, INC.
By:/s/
Xxxxx Xxxxx
Name:
Xxxxx Xxxxx
Title:
President and CEO
