Exhibit 10.9
SEPARATION AGREEMENT
--------------------
THIS AGREEMENT entered into as of the 19th day of February, 2001 by and
between eOn COMMUNICATIONS CORPORATION, a Delaware corporation ("eOn", "Company"
or "Employer") and XXXXXX XXXX, a resident of Tennessee ("Employee").
WHEREAS, Employer has accepted Employee's resignation as Vice President and
Chief Marketing Officer, effective December 20th, 2000
WHEREAS, Employer and Employee wish to formalize the terms of Employee's
termination of employment and upon the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the above premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
Article 1
Term of Agreement
This Agreement shall be effective as of the date of its execution and shall
continue in force in perpetuity except for those articles in which some other
term of duration or date of termination is provided.
Article 2.
Compensation and Severance
In consideration of Employee's past service and in order to secure Employee's
availability to assist the Company in connection with financial issues and other
matters that occurred on or prior to January 31, 2001, eOn will provide the
following compensation and severance benefits to Employee:
1. Continuation for the period through April 15, 2001, of Employee's
present base salary and fringe benefits (except as noted in Item 3 below)
in conjunction with services described in the opening paragraph of Article
2.
2. Severance pay for the period April 16 through June 8, 2001 to be paid
through the Company's normal bi-weekly payroll system.
3. Payment for accrued but unused vacation days through February 16,
2001, payable on the first business day following April 15, 2001.
4. Employee may continue to contribute to the eOn Medical Plan at the
employee rate through the end the month during which his last severance
payment is received, extending his coverage through the end of the month of
June 2001. He will then have sixty (60) days from the end of June 2001 to
make a decision about continuing medical coverage at his own expense under
the provisions of the COBRA program.
5. In keeping with the provisions of the governing versions of the
Company's Equity Incentive Plan, employee will have ninety (90) days from
April 15, 2001 within which to exercise his vested stock options.
6. Employee may retain his laptop computer for his personal use. Employee
agrees to make the laptop available to eOn personnel for purposes of
collecting a backup of information and data on the computer.
7. Any confidentiality agreements signed by Employee will remain in full
force and effect as provided in the terms of those agreements.
To the extent that any provisions of this Article of this Agreement conflict
with the provisions of the agreement between Employee and the Company dated
December 20, 2000, the provisions of this Agreement will govern.
Article 3.
Services to be Provided
In consideration of the severance and other compensation provided herein, the
employee shall make himself available through July 31, 2001, to answer questions
regarding matters in which he has been involved. Employee may respond to such
requests for information at times that are reasonable and do not interfere with
his responsibilities to any subsequent employer.
Article 4.
Confidential Information
In consideration of the compensation and benefits to be paid or provided to
Employee by Employer under this Agreement, Employee covenants as follows:
1) Employee agrees and acknowledges that through the nature of his work,
he has had access to and may acquire proprietary information and knowledge
concerning the business and operations of Employer and its Affiliates including,
without limitation, information about its trade secrets, current and proposed
products, present and potential customers, vendor relationships, financial
information, sales and marketing plans, technical, engineering, and test data,
employees, intellectual property, and business models (collectively, the
"Confidential Information"). Employee acknowledges that all such Confidential
Information is the property of Employer and its Affiliates solely and
constitutes valuable, proprietary and confidential information of Employer and
its Affiliates; that the disclosure thereof would cause substantial loss to the
goodwill of Employer and its Affiliates; that disclosure thereof to Employee is
being or has been made only because of the position of trust and confidence
which he has occupied and will occupy and because of his agreement to the
restrictions herein contained. Employee shall not, at any time, divulge,
disseminate, disclose or communicate to any Person any Confidential Information,
either during or after the term of this agreement, which information Employee
shall hold in trust in a fiduciary capacity for the sole benefit of Employer,
its Affiliates, and their successors and assigns.
2) None of the foregoing obligations and restrictions applies to any part
of the Confidential Information that Employee demonstrates was or became
generally available to the public other than as a result of a disclosure by
Employee.
3) Employee will not remove from Employer's premises (except to the
extent such removal is for purposes of the performance of Employee's duties at
home or while traveling, or except as otherwise specifically authorized by
Employer) any document, record, notebook, plan, model, component, device, or
computer software or code, whether embodied in a disk or in any other form
(collectively, the "Proprietary Items"). Employee recognizes that, as between
Employer and Employee, all of the Proprietary Items, whether or not developed by
Employee, are the exclusive property of Employer. No later than February 16,
2001, Employee will return to eOn all of the Proprietary Items in Employee's
possession or subject to Employee's control except as provided in Article 2. 6.
of this Agreement, and Employee shall not retain any copies, abstracts,
sketches, or other physical embodiment of any of the Proprietary Items.
4) The Employee acknowledges that the Employee Confidentiality Agreement
and the Agreement for Assignment of Inventions and Covenant Against Disclosure
previously executed by the Employee remain in full force and effect during and
after the term of this Agreement and after the termination of his employment.
5) The parties agree that, in addition to any damages otherwise
available, the damages, whether financial or otherwise, in the event of a breach
of this Article by the Employee, would be irreparable, and that damages from
such breach would not be an adequate remedy. The Employee therefore agrees that
an injunction from a court of competent jurisdiction will be available if the
Employee violates
or threatens to violate the terms of this Article, in addition to any other
remedy at law or equity available to the Employer under this Agreement or under
any applicable law.
Article 5.
Releases and Waiver
-------------------
The Employee hereby fully releases the Employer, its affiliates, officers,
directors, employees, and agents from any and all claims of whatever kind or
character under federal, state, or local law or regulation, including but not
limited to the Age Discrimination in Employment Act of 1967, as amended, all
civil rights acts, and any other statutes or common law concerning employment
discrimination or otherwise. In consideration of that release, the Employer
likewise releases the Employee from any and all claims existing as of the date
of this Agreement.
The Employer acknowledges and agrees that the Employee has been covered by
the Employer's director and officer liability insurance policy. Notwithstanding
Employee's part-time employment pursuant to this Agreement or termination of his
employment at any time, whether due to termination of this Agreement or
otherwise, the Employer shall continue to cover Employee under its director and
officer insurance policy to the extent allowed by the provisions of such policy
with respect to his conduct and activities during the period when he was an
officer and/or director of the Employer. The provisions of this paragraph shall
survive the termination of this Agreement for a period of six years.
This Release does not constitute a waiver of any rights or claims under the
Age Discrimination in Employment Act that may arise after the date that this
Agreement is signed. The Employee further acknowledges that he is receiving
consideration beyond anything of value to which he is already entitled. The
Employee understands that he has up to 21 days to consider whether to sign this
Release and Agreement. By signing this Release and Agreement on the date shown
below, the Employee voluntarily elects to forego waiting 21 days to sign this
Release and Agreement. The Employee also acknowledges that he has been fully
advised by Employer of his right to revoke and nullify this Release and
Agreement, which right must be exercised, if at all, within seven days of the
date of his signature. Any revocation of this Agreement must be in writing
addressed to the Company as follows:
Xxxx Xxxxx
eOn Communications Corporation
0000 Xxxxx Xxxxx
Xxxxxxxx, XX 00000
Article 6.
Miscellaneous
-------------
11.1 Waiver. The rights and remedies of the parties to this Agreement
are cumulative and not alternative. Neither the failure nor any delay by either
party in exercising any right, power, or privilege under this Agreement will
operate as a waiver of such right, power, or privilege, and no single or partial
exercise of any such right, power, or privilege will preclude any other or
further exercise of such right, power, or privilege or the exercise of any other
right, power, or privilege. To the maximum extent permitted by applicable law,
(a) no claim or right arising out of this Agreement can be discharged by one
party, in whole or in part, by a waiver or renunciation of the claim or right
unless in writing signed by the other party; (b) no waiver that may be given by
a party will be applicable except in the specific instance for which it is
given; and (c) no notice to or demand on one party will be deemed to be a waiver
of any obligation of such party or of the right of the party giving such notice
or demand to take further action without notice or demand as provided in this
Agreement.
11.2 Binding Effect; Delegation of Duties Prohibited. This Agreement
shall inure to the benefit of, and shall be binding upon, the parties hereto and
their respective successors, assigns, heirs, and legal representatives,
provided, however, that this Agreement may be assigned by Employer only with the
prior written consent of Employee, which consent shall not be unreasonably
withheld. The duties and covenants of Employee under this Agreement, being
personal, may not be delegated.
11.3 Entire Agreement; Amendments. This Agreement contains the entire
agreement between the parties with respect to the subject matter hereof and
supersede all prior agreements and understandings, oral or written, between the
parties hereto with respect to the subject matter hereof. This Agreement may not
be amended orally, but only by an agreement in writing signed by the parties
hereto.
11.4 Severability. If any provision of this Agreement is held invalid or
unenforceable by any court of competent jurisdiction, the other provisions of
this Agreement will remain in full force and effect. Any provision of this
Agreement held invalid or unenforceable only in part or degree will remain in
full force and effect to the extent not held invalid or unenforceable.
11.5 Governing Law; Venue. This Agreement shall be governed by and
construed in accordance with the domestic laws of the State of Georgia without
giving effect to any choice or conflict of law provision or rule (whether of the
State of Georgia or any other jurisdiction) that would cause the application of
the laws of any jurisdiction other than the State of Georgia. Each of the
parties submits to the jurisdiction of any state or federal court sitting in
Atlanta, Georgia, in any action or proceeding arising out of or relating to this
Agreement and agrees that all claims in respect of the action or proceeding
shall be heard and determined in any such court. Each party also agrees not to
bring any action or proceeding arising out of or relating to this Agreement in
any other court. Each of the parties waives any defense of inconvenient forum to
the maintenance of any action or proceeding so brought and waives any bond,
surety, or other security that might be required of any other party with respect
thereto
11.6 Arbitration. Subject to the provisions set forth herein below, any
disputes, claims or controversies ("claims") arising out of and related to the
interpretation and application of this Agreement, or any amendment thereto,
including any alleged breach hereof, or any claims otherwise arising out of or
related to Employee's employment, including, any claims governed by any law,
state or federal, relating to employment shall be referred to and resolved by
Arbitration which shall be conducted in accordance with the then current
Commercial Arbitration Rules of the American Arbitration Association ("AAA")
before an arbitrator who is licensed to practice law in the State of Georgia.
The arbitration shall take place in Atlanta, Georgia, at a mutually acceptable
site. Provided, however, this arbitration clause shall not apply to or cover
claims for worker's compensation or claims for injunctive or equitable relief
arising out of or relating to the enforcement by the Employer of any of the
restrictive covenants set forth in Article 8 and Article 9 or elsewhere in this
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed and delivered as of the day and date first above written.
eOn COMMUNICATIONS CORPORATION
/s/ Xxxx X. Xxxxx
---------------------------------------------------
XXXX X. XXXXX
Date: February 19, 2001
----------------------------------------------
/s/ Xxxxxx X. Xxxx
---------------------------------------------------
XXXXXX X. XXXX
Date: February 19, 2001
----------------------------------------------
