EXHIBIT 10.9A
SETTLEMENT AGREEMENT AND
FULL AND FINAL RELEASE OF CLAIMS
This Settlement Agreement and Full and Final Release of Claims
("Agreement") is made and entered into between Xxxxxx X. Xxxxxx ("Xx. Xxxxxx" or
"Employee") and Verilink Corporation ("Verilink" or "the Company").
1. SEVERANCE. Xx. Xxxxxx and Verilink have agreed to end their
employment relationship in a manner such that Xx. Xxxxxx'x employment with
Verilink terminated effective October 8, 2001 ("Effective Separation Date").
2. CONSIDERATION. In consideration of Xx. Xxxxxx'x decision to
enter into this Agreement, Verilink will provide Xx. Xxxxxx with the following:
(a) The continuation of his current salary for a period
of six (6) months following the effective date of this Agreement. In the
alternative, Verilink may at any time choose to pay Xx. Xxxxxx a lump sum
payment equal to the outstanding balance of his remaining salary. All such
payments are subject to applicable legal withholdings.
(b) The payment of COBRA premiums for continuation of the
coverage currently in effect for Xx. Xxxxxx and Xx. Xxxxxx'x covered dependents
under the medical, dental and vision plans for a period of six (6) months from
his Effective Separation Date, if Xx. Xxxxxx so elects COBRA continuation within
the applicable period. These payments will be started following the effective
date of this Agreement.
(c) Xx. Xxxxxx will be covered under Verilink's
"Directors & Officers" insurance policy in accordance with the terms of that
policy.
Whether or not Xx. Xxxxxx executes this Agreement, Verilink will
provide Xx. Xxxxxx with the following:
(d) The right to exercise any vested stock options for a
period of three (3) months following Xx. Xxxxxx'x Effective Separation Date,
pursuant to Verilink's current Stock Option Plan.
(e) Whether or not Xx. Xxxxxx executes this Agreement,
Verilink will pay any accrued, but unused, paid-time-off as soon as
administratively feasible after his Effective Separation Date or within a
reasonable period after this Agreement becomes binding and effective, whichever
is later. All such payments are subject to the applicable legal withholdings.
Xx. Xxxxxx will not continue to accrue paid-time-off after the Effective
Separation Date.
3. NO OBLIGATION. Xx. Xxxxxx agrees and understands that the
consideration described in Paragraphs 2(a), 2(b) and 2(c) above are not required
by Verilink's policies and procedures or by any prior agreement between Verilink
and Xx. Xxxxxx.
4. FULL AND FINAL RELEASE. In consideration of the payments being
provided to him above, Xx. Xxxxxx, for himself, his attorneys, heirs, executors,
administrators, successors and assigns, fully, finally and forever releases and
discharges Verilink, all subsidiary and/or affiliated companies, as well as its
and their successors, assigns, officers, owners, directors, agents,
representatives, attorneys, and employees (all of whom are referred to
throughout this Agreement as "Verilink"), of and from all claims, demands,
actions, causes of action, suits, damages, losses, and expenses, of any and
every nature whatsoever, as a result of actions or omissions occurring through
the effective date of this Agreement. Specifically included in this waiver and
release are, among other things, any and all claims for severance pay benefits
under the Employee Retirement Income Security Act of 1974 (ERISA), any and all
claims of alleged employment discrimination, either as a result of the
separation of Xx. Xxxxxx'x employment, or otherwise, under the Age
Discrimination in Employment Act, the Older Workers' Benefit Protection Act,
Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act,
any other federal, state or local statute, rule, ordinance, or regulation, as
well as any claims for alleged wrongful discharge, negligent or intentional
infliction of emotional distress, breach of contract, fraud, or any other
unlawful behavior, the existence of which is specifically denied by Verilink.
Nothing in this Agreement, however, is intended to waive Xx. Xxxxxx'x
entitlement to vested benefits under any pension or 401(k) plan or other benefit
plan provided by Verilink. Nor does this release waive any right Xx. Xxxxxx may
have to challenge the validity of this Agreement with the Equal Employment
Opportunity Commission ("EEOC") with respect to any claim arising under the Age
Discrimination in Employment Act. Finally, the above release does not waive
claims that Xx. Xxxxxx could make, if available, for unemployment or workers'
compensation.
5. NO OTHER CLAIMS. Xx. Xxxxxx represents that he has not filed,
nor assigned to others the right to file, nor are there pending, any complaints,
charges or lawsuits against Verilink with any governmental agency or any court,
and that he will not file, nor assign to others the right to file, or make any
further claims against Verilink at any time for actions or omissions covered by
the release in Paragraph 4 above. Nothing in this Agreement, however, prohibits
Xx. Xxxxxx from filing a charge or complaint with the EEOC with respect to any
claim arising under the Age Discrimination in Employment Act.
6. OWNERSHIP AND PROTECTION OF PROPRIETARY INFORMATION.
(a) Confidentiality. All Confidential Information and
Trade Secrets, as defined below, and all physical embodiments thereof received
or developed by Xx. Xxxxxx while employed by Verilink are confidential to and
are and will remain the sole and exclusive property of Verilink. Xx. Xxxxxx will
hold such Confidential Information and Trade Secrets in trust and strictest
confidence, and will not use, reproduce, distribute, disclose or otherwise
disseminate the Confidential Information and Trade Secrets or any physical
embodiments thereof and may in no event take any action causing or fail to take
the action necessary in order to prevent, any
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Confidential Information and Trade Secrets disclosed to or developed by Xx.
Xxxxxx to lose its character or cease to qualify as Confidential Information or
Trade Secrets.
(i) "Confidential Information" means data and
information relating to the Business of the Company (which does not rise to the
status of a Trade Secret) which is or has been disclosed to Xx. Xxxxxx or of
which Xx. Xxxxxx became aware as a consequence of or through his employment
relationship with Verilink and which has value to Verilink and is not generally
known to its competitors. Confidential Information shall not include any data or
information that has been voluntarily disclosed to the public by Verilink
(except where such public disclosure has been made by Xx. Xxxxxx without
authorization) or that has been independently developed and disclosed by others,
or that otherwise enters the public domain through lawful means.
(ii) "Trade Secrets" means information including,
but not limited to, technical or nontechnical data, formulas, patterns,
compilations, programs, devices, methods, techniques, drawings, processes,
financial data, financial plans, product plans or lists of actual or potential
customers or suppliers which (i) derives economic value, actual or potential,
from not being generally known to, and not being readily ascertainable by proper
means by, other persons who can obtain economic value from its disclosure or
use, and (ii) is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.
(b) Return of Company Property. Xx. Xxxxxx will promptly
deliver to Verilink all property belonging to Verilink, including, without
limitation, all Confidential Information and Trade Secrets (and all embodiments
thereof) then in Xx. Xxxxxx'x custody, control or possession.
(c) Survival. The covenants of confidentiality set forth
in this Paragraph will apply as of the date Xx. Xxxxxx executes this Agreement
to any Confidential Information and Trade Secrets previously disclosed by
Verilink or developed by Xx. Xxxxxx during the course of his employment with
Verilink. The covenants restricting the use of Confidential Information will
continue and be maintained by Xx. Xxxxxx for a period of two (2) years following
the date of execution of this Agreement. The covenants restricting the use of
Trade Secrets will continue and be maintained by Xx. Xxxxxx following execution
of this Agreement for so long as permitted by the Alabama law.
7. AGREEMENT NOT TO SOLICIT CUSTOMERS OR EMPLOYEES.
(a) Agreement Not to Solicit Customers or Consultants.
Xx. Xxxxxx agrees that beginning immediately and continuing for a period of one
year from his Effective Separation Date, he will not, either directly or
indirectly, on his own behalf or in the service of or on behalf of others, (1)
solicit, divert, or appropriate or attempt to solicit, divert, or appropriate to
any third party, any individual or entity which was an actual or actively sought
prospective client, customer, or consultant of Verilink (determined at the date
Xx. Xxxxxx was last employed by
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Verilink and continuing for a period of one year from his Effective Separation
Date ) and with whom Xx. Xxxxxx had material contact during Xx. Xxxxxx'x term of
employment with Verilink; or (2) interfere in any way with Verilink's business
relationship with any person or entity.
(b) Agreement Not to Solicit Employees. Xx. Xxxxxx agrees
that beginning immediately, and continuing for a period of one year from his
Effective Separation Date, he will not, either directly or indirectly, on his
own behalf or in the service of or on behalf of others, solicit, divert or hire,
or attempt to solicit, divert or hire, any person employed by Verilink, and whom
Xx. Xxxxxx supervised, either directly or indirectly, or hired on behalf of
Verilink, whether or not such employee is a full-time employee or a temporary
employee of Verilink and whether or not such employment is pursuant to written
agreement and whether or not such employment is for a determined period or is at
will.
8. NON-DISPARAGEMENT. Xx. Xxxxxx agrees that he has not and will
not make statements to clients, customers and suppliers of Verilink or to other
members of the public that are in any way disparaging or negative towards
Verilink, Verilink's products or services, or Verilink's representatives or
employees. Verilink agrees to use reasonable efforts to prevent its employees
and representatives from making or issuing any statements that are negative or
disparaging towards Xx. Xxxxxx or the termination of his employment.
9. NON-ADMISSION OF LIABILITY OR WRONGFUL CONDUCT. This Agreement
shall not be construed as an admission by Verilink of any liability or acts of
wrongdoing or discrimination, nor shall it be considered to be evidence of such
liability, wrongdoing, or discrimination.
10. COMPLETE TERMINATION OF EMPLOYMENT RELATIONSHIP. Except as set
forth above, Xx. Xxxxxx and Verilink agree as a matter of intent that, except
for vested pension benefits, if any, this Agreement terminates all aspects of
the relationship between them for all time and that Xx. Xxxxxx will not
represent himself as an officer or employee of Verilink after the Effective
Separation Date. Xx. Xxxxxx therefore acknowledges that he does not and will not
seek reinstatement, future employment, or return to active employee status with
Verilink or any subsidiary or affiliated company. Xx. Xxxxxx further
acknowledges that neither Verilink nor any subsidiary or affiliated company
shall be under any obligation whatsoever to consider him for reinstatement,
employment, re-employment, consulting or other similar status at any time. This
provision will not preclude Xx. Xxxxxx from contracting with Verilink on behalf
of another company that has employed him. It also will not preclude Verilink in
the future from considering Xx. Xxxxxx for a position, either upon request or
otherwise, although Verilink cannot be compelled to consider Xx. Xxxxxx for or
to provide Xx. Xxxxxx with any position at any time.
11. CONFIDENTIALITY. The nature and terms of this Agreement are
strictly confidential and they have not been and shall not be disclosed by Xx.
Xxxxxx at any time to any person other than his lawyer, his accountant, or his
immediate family, who shall be informed of and bound by this confidentiality
clause, without the prior written consent of an officer of
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Verilink, except as necessary in any legal proceedings directly related to the
provisions and terms of this Agreement, to prepare and file income tax forms, or
pursuant to court order after reasonable notice to Verilink.
12. AGE DISCRIMINATION IN EMPLOYMENT ACT. Xx. Xxxxxx hereby
acknowledges and agrees that this Agreement and the termination of Xx. Xxxxxx'x
employment are in compliance with the Age Discrimination in Employment Act and
the Older Workers' Benefit Protection Act and that the releases set forth in
this Agreement shall be applicable, without limitation, to any claims brought
under these Acts. Xx. Xxxxxx further acknowledges and agrees that:
(a) The release given by Xx. Xxxxxx in this Agreement is
given solely in exchange for the consideration set forth in Paragraphs 2(a),
2(b) and 2(c) of this Agreement and such consideration is in addition to
anything of value which Xx. Xxxxxx was entitled to receive prior to entering
into this Agreement;
(b) By entering into this Agreement, Xx. Xxxxxx does not
waive rights or claims that may arise after the date this Agreement is executed;
(c) Xx. Xxxxxx has been advised to consult an attorney
prior to entering into this Agreement, and this provision of this Agreement
satisfies the requirement of the Older Workers' Benefit Protection Act that Xx.
Xxxxxx be so advised in writing;
(d) Xx. Xxxxxx has been offered forty-five (45) days from
receipt of this Agreement within which to consider this Agreement; and
(e) For a period of seven (7) days following execution of
this Agreement, the Employee or the Company may revoke this Agreement, and this
Agreement shall not become effective or enforceable until such seven (7)-day
period has expired.
13. CLASS OF EMPLOYEES OFFERED SEPARATION AGREEMENT. The Company
has offered this agreement to Xx. Xxxxxx as part of a reduction-in-force ("the
Program"). The Company has decided to eliminate eighty-five (85) positions
throughout the Company. Thus, the "Decisional Unit" for this reduction-in-force
consists of all employees in the Company. All persons in the Decisional Unit are
eligible for this Program. However, only those persons who are being terminated
as part of this reduction-in-force have been selected for the Program. Attached
to this Agreement as Attachment I is a list of ages and job titles of persons in
the Decisional Unit who were and who were not selected for participation in the
Program. Xx. Xxxxxx has forty-five (45) days to consider this Agreement. Once
Xx. Xxxxxx signs this Agreement, either Xx. Xxxxxx or the Company then has seven
(7) days to revoke this Agreement.
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14. GOVERNING LAW. This Agreement shall be interpreted under the
laws of the State of Alabama.
15. SEVERABILITY. The provisions of this Agreement are severable,
and if any part of this Agreement except Paragraph 4 is found by a court of law
to be unenforceable, the remainder of the Agreement will continue to be valid
and effective. If Paragraph 4 is found by a court of competent jurisdiction to
be unenforceable, the parties agree to seek a determination by the court as to
the rights of the parties, including whether Xx. Xxxxxx is entitled under those
circumstances and the relevant law to retain the benefits paid to him under the
Agreement.
16. SOLE AND ENTIRE AGREEMENT. This Agreement sets forth the
entire agreement between the parties. Any prior agreements between or directly
involving the parties to the Agreement are superseded by the terms of this
Agreement and thus are rendered null and void. However, the following agreements
remain intact and are incorporated herein by reference: (1) the May 3, 2000
letter agreement between the parties (executed on May 17, 2000), attached hereto
as Attachment II; (2) the Confidentiality and Non-Disclosure Agreement executed
by the parties, attached hereto as Attachment III; and (3) any non-compete
agreements or other prior agreements between the parties related to inventions,
business ideas, and confidentiality of corporate information.
17. NO OTHER PROMISES. Xx. Xxxxxx affirms that the only
consideration for him signing this Agreement is that set forth in Paragraphs
2(a), 2(b) and 2(c), that no other promise or agreement of any kind has been
made to or with him by any person or entity to cause him to execute this
document, and that he fully understands the meaning and intent of this
Agreement, including, but not limited to, its final and binding effect.
18. REMEDIES. Xx. Xxxxxx agrees that the covenants and agreements
contained in Sections 6 and 7 hereof are of the essence of this Agreement; that
each such covenant is reasonable and necessary to protect and preserve the
interests and properties of Verilink; that Xx. Xxxxxx has access to and
knowledge of Verilink's business and financial plans; that irreparable loss and
damage will be suffered by Verilink should Xx. Xxxxxx breach any such covenant
and agreement; that each such covenant and agreement is separate, distinct and
severable not only from the other of such covenants and agreements but also from
the other and remaining provisions of this Agreement; that the unenforceability
of any such covenant or agreement shall not affect the validity or
enforceability of any other such covenant or agreement or any other provision or
provisions of this Agreement; and that, in addition to other remedies available
to it, Verilink shall be entitled to specific performance of this Agreement and
to both temporary and permanent injunctions to prevent a breach or contemplated
breach by Xx. Xxxxxx of any of the covenants or agreements.
19. ADVICE OF COUNSEL. Xx. Xxxxxx acknowledges that he has been
advised by Verilink to consult with an attorney in regard to this matter. He
further acknowledges that he has been given forty-five (45) days from the time
that he receives this Agreement to consider
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whether to sign it. If Xx. Xxxxxx has signed this Agreement before the end of
this forty-five (45) day period, it is because he freely chose to do so after
carefully considering its terms. Finally, Xx. Xxxxxx shall have seven (7) days
from the date he signs this Agreement to change his mind and revoke the
Agreement. If Xx. Xxxxxx does not revoke this Agreement within seven days of his
signing, this Agreement will become final and binding on the day following such
seven-day period.
20. SIGNATURE. The Agreement may be signed in counterpart and/or
through the use of facsimile signatures without effecting its binding nature or
effectiveness.
21. LEGALLY BINDING AGREEMENT. Xx. Xxxxxx understands and
acknowledges that (a) that this is a legally binding release; (b) that by
signing this Agreement, he is hereafter barred from instituting claims against
Verilink in the manner and to the extent set forth in Paragraph 4 and Paragraph
5 above; and (c) that this Agreement is final and binding.
PLEASE READ CAREFULLY. THIS AGREEMENT INCLUDES A RELEASE
OF ALL KNOWN AND UNKNOWN CLAIMS.
Date: 11/15/2001 /s/ Xxxxxx X. Xxxxxx
----------------------- --------------------------------------------
Xxxxxx X. Xxxxxx
FOR: VERILINK CORPORATION
Date: 11/15/2001 By: /s/ Xxxxxx X. Xxxxxxxx
----------------------- ----------------------------------------
Full Name: Xxxxxx X. Xxxxxxxx
Title: President and Chief Executive Officer
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