SEPARATION AGREEMENT
Exhibit 10.3
THIS AGREEMENT (this “Agreement”),
is made and entered into as of November 8, 2018 (the
“Effective
Date”), by and between Fusion LLC (formerly known as Network
Billing Systems, LLC (the “Company”)
and Xxxxxx Xxxxxxxx, Xx. (“Executive”).
WHEREAS, the Company and Executive
desire to enter into a separation agreement, which shall define and
modify the rights and obligations of Executive as a result of the
termination of his services to the Company and each other
subsidiary of Fusion Connect, Inc. (collectively hereinafter
referred to as “Fusion
Group”).
NOW, THEREFORE, in consideration of the
premises and the mutual covenants herein contained, and for other
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Company and Executive hereby agree as
follows:
SECTION
1. Acknowledgement of the
Parties. The parties acknowledge that Executive’s
employment with the Company will end on November 8, 2018 and that,
as of such date, he will no longer hold any positions with the
Fusion Group, including that of President (the “Separation
Date”). Executive shall be paid his base compensation
through the Separation Date. Consistent with the Company policies
and practices now in effect, should any claim arise in the future
relating to or arising from Executive’s service in any
director or officer position, Executive will be defended,
indemnified and held harmless under the terms of the
Indemnification Agreement between Executive and the Company, dated
March 6, 2006; provided that such indemnification rights shall be
no less than on the same terms and conditions as any other director
or officer, including all rights and protections under the
applicable director and officer insurance policies.
SECTION
2. Compensation and
Benefits; Stock Options; Company Equipment; Unemployment
Benefits.
(a)
Separation
Payments. Subject to Executive (i) not revoking this
Agreement during the period specified in Section 4(a)(iv)(D), and (ii)
assuming that Executive is not in breach of his obligations in
Section 3 hereof,
the Company and Executive agree that, from the Separation Date
through and including June 8, 2019 (the “Severance Benefit
Period”), separation payments totaling $160,416.66
(exclusive of applicable tax withholdings) will be paid to
Executive ratably over the Severance Benefit Period.
(b) Benefits.
Except as otherwise provided herein and except for medical, dental
and vision coverage that end on October 31, 2018, Executive's
participation in all retirement and welfare benefit plans and
programs maintained by the Fusion Group will cease on November 8,
2018; except, however, that (i) Executive is eligible
to continue medical, dental and vision coverage for himself and his
spouse and any eligible dependents under the Company’s
benefit plans in accordance with the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended (“COBRA”) and (ii) Executive, his
spouse and any eligible dependents may continue to participate in
such benefit plans as a terminated but vested employee (or eligible
dependent thereof) in accordance with the terms of such benefit
plans. If Executive elects to enroll in COBRA, the Company will pay
the cost of the COBRA coverage to continue medical, dental and
vision coverage in effect on the Separation Date for himself and
his spouse and any eligible dependents under the Company’s
benefit plans for a period of eighteen (18) months, ceasing on May
31, 2020, after which Executive will be responsible for the cost of
continued coverage. Except as specifically provided in this
Agreement, Executive acknowledges and agrees that he is not
entitled to receive any other payments or benefits of any
kind.
(c) Stock
Options. Executive is a participant in the Fusion
Telecommunications International, Inc. 2009 Stock Option Plan, as
amended, and the Fusion Connect, Inc. 2016 Equity Incentive Plan,
as amended, and has certain vested and unvested options to
purchase, in the aggregate, 114,899 shares of common stock of
Fusion Connect, Inc. (collectively, the “Options”).
All unvested Options held by Executive shall automatically vest and
become exercisable on the Separation Date and Executive shall be
entitled to exercise all of his Options (at their specified
exercise price) for the shorter of (i) a period of three
hundred sixty-five (365) days following the Separation Date and
(ii) the remainder of the applicable Option’s full term.
Executive acknowledges that any Options previously designated as
incentive stock options will not qualify for such treatment as a
result of the preceding sentence.
(d) Accrued
and Unused Vacation. The Company shall pay Executive for all
accrued and unused vacation time that Executive has earned through
and including the Separation Date according
to the records of the Company. Such amount is subject to all
applicable federal and state tax withholding
obligations.
(e)
Business Expenses.
Executive shall be entitled to receive reimbursement, in accordance
with the Company’s standard expense reimbursement policy and
practice, for all reasonable expenses incurred by Executive in the
performance of his duties through the Separation Date upon
submission of reasonable documentation or receipt.
(f)
On-going
Cooperation. To ensure a smooth transition of his duties and
responsibilities, during the Severance
Benefit Period Executive agrees to be available, at mutually
agreeable times, by phone, to answer questions from Xxxxxxx Xxxxxxx and/or Xxxxx X.
Xxxxxxxx, Xx. on matters with which Executive was familiar
during his employment. This obligation
shall not exceed five (5) hours in any given month during the
Severance Benefit Period. Executive shall have no other
ongoing obligations for the Company other than to answer such
questions.
(g)
Company
Equipment. On or prior to the
Separation Date, Executive shall return all property belonging to
the Fusion Group in his possession, custody or control, including,
without limitation, Company issued phones (cell phone and Polycom
phones), keys, security cards, electronically stored information
and all Fusion Group documents and materials.
(h) Unemployment
Benefits. The Company will not
contest Executive’s receipt of unemployment compensation
provided he is otherwise eligible for such
benefits.
SECTION
3. Restrictive
Covenants.
(a) Confidential
Information. Executive agrees
that he shall hold in a confidential manner for the benefit of the
Fusion Group, all trade secrets and confidential or proprietary
information relating to the Fusion Group and its businesses and
investments, which he obtained during his employment
(“Confidential
Information”).
Confidential Information shall not include information which is
generally available public knowledge (other than by his acts in
violation of this Agreement) or is not maintained by the Company as
confidential. Except as may be required by law or any legal
process, or as is necessary in connection with any adversarial
proceeding against the Fusion Group (in which case Executive shall
use his reasonable best efforts in cooperating with Fusion Group in
Fusion Group’s actions to obtain a protective order against
disclosure by a court of competent jurisdiction). Consistent with
the prior sentence, Executive shall not, without the prior written
consent of the Company, communicate or divulge any Confidential
Information to anyone other than the Fusion Group and those
designated by the Fusion Group. Notwithstanding the nondisclosure
obligations set forth herein, pursuant to 18 USC § 1833(b),
Executive may not be held criminally or civilly liable under any
federal or state trade secret law for disclosure of a trade secret
or Confidential Information that is made (i) in confidence to a
government official, either directly or indirectly, or to an
attorney, solely for the purpose of reporting or investigating a
suspected violation of law; or (ii) in a complaint or other
document filed in a lawsuit or other proceeding, if such filing is
made under seal.
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(b)
Non-Solicitation of
Customers/Employees. Executive agrees that for a period of
one (1) year following the Separation Date, he will not, on behalf
of himself or on behalf of any other person, directly or
indirectly, (i) solicit any person that is a customer, client or
has or had, within the prior twenty four (24) months, a contractual
relationship with the Fusion Group to discontinue, terminate,
cancel or refrain from doing business with the Fusion Group, or in
any way interfere with the business relationship between such
person and the Fusion Group, or (ii) solicit any person that, as of
the Separation Date is an employee or officer of the Fusion Group,
to terminate his or her employment with the Fusion
Group.
(c)
Covenant Not to
Compete. Executive will not, at any time, during the
Severance Benefit Period, either directly or indirectly, engage in,
with or for any enterprise, institution, whether or not for profit,
business, or company, competitive with the Business (as defined
herein) of the Fusion Companies as such Business is conducted on
the date thereof, as a creditor, guarantor, or financial backer,
stockholder, director, officer, consultant, advisor, employee,
member, or otherwise of or through any corporation, partnership,
association, sole proprietorship or other entity; provided, that an
investment by Executive, his spouse or his children is permitted if
such investment is not more than four percent (4%) of the total
debt or equity capital of any such competitive enterprise or
business. As used in this Agreement, the “Business” of
the Companies shall be deemed to include the provision of any form
of traditional communications services, Internet based video
conferencing services, Unified communications as a service
(“UCaaS”),
clouding computing, cloud connectivity, cloud storage, cloud
security and software as a service (“SaaS”),
provided that such services shall have been offered by the Company
as of the Separation Date. The foregoing prohibition shall not
prevent Executive’s employment or engagement after the
Severance Benefit Period (a) by any entity as long as the
activities of such employment or engagement do not involve work on
matters related to the Business or (b) by an investment fund that
invests in entities engaged in the Business so long as Executive is
not employed or engaged as an executive officer or director of such
entity engaged in the Business.
(d)
Non-Disparagement.
The parties acknowledge and agree that they will not defame or make
any false representations or disparaging remarks about or in any
other way attempt to damage or impair the reputation of the other
party (in the case of any Fusion Group member, meaning any of its
executives, officers, members, employees, directors or
investors).
(e)
Miscellaneous.
Executive acknowledges and agrees that the remedy at law available
to the Company for breach of any of Executive’s obligations
under this Section
3 may be inadequate, and that damages flowing from such a
breach may not readily be susceptible to being measured in monetary
terms. The Company acknowledges and agrees that the remedy at law
available to Executive for a breach of the obligations under
Section 3 by it may
be inadequate, and that damages flowing from such a breach may not
readily be susceptible to being measured in monetary terms.
Accordingly, Executive and the Company acknowledge, consent and
agree that, in addition to any other rights or remedies which they
may have at law, in equity or under this Agreement, upon the
other’s violation of the applicable provisions of this
Section 3, the
non-breaching party shall be entitled to seek immediate injunctive
relief and may seek a temporary order restraining any threatened or
further breach, without the necessity of proof of actual
damage.
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If it
is established in a judicial forum that Executive has violated this
Section 3, the
applicable restrictive period set forth herein shall not run in
Executive’s favor from the time of the commencement of any
such violation until such time as Executive cures such violation to
the satisfaction of the Company.
SECTION
4. Release.
Executive acknowledges and agrees that his right to receive
payments and Benefits under this Agreement is subject to his
execution of this Agreement (provided that he does not subsequently
revoke the release in this Section 4(a)).
(a)
Release of Claims by
Executive.
(i)
In exchange for and in consideration of the Severance Payments
and/or benefits that Executive shall receive under Sections 2(a)
through 2(c) of this Agreement (the “Benefits”),
Executive, on behalf of himself and his agents, representatives,
administrators, receivers, trustees, estates, heirs, devisees,
assignees, legal representatives, and attorneys, past or present
(as the case may be), hereby irrevocably and unconditionally
releases, discharges, and acquits all the Released Parties (as
defined below) from any and all claims, promises, demands,
liabilities, contracts, debts, losses, damages, attorneys’
fees and causes of action of every kind and nature, known and
unknown, arising out of Executive’s employment with the
Company, up to the Effective Date, including but not limited to
causes of action, claims or rights arising out of, or which might
be considered to arise out of or to be connected in any way with
(i) Executive’s employment with the Company or the
termination thereof; (ii) any treatment of Executive by any of the
Released Parties, which shall include, without limitation, any
treatment or decisions with respect to hiring, placement,
promotion, discipline, work hours, demotion, transfer, termination,
compensation, performance review, or training; (iii) any statements
or alleged statements by the Company or any of the Released Parties
regarding Executive, whether oral or in writing; (iv) any damages
or injury that Executive may have suffered, including without
limitation, emotional or physical injury, compensatory damages, or
lost wages; (v) employment discrimination, which shall include,
without limitation, any individual or class claims of
discrimination on the basis of age, disability, sex, race,
religion, national origin, citizenship status, marital status,
sexual preference, or any other basis whatsoever; or (vi) all such
other claims that Executive could assert against any, some, or all
of the Released Parties in any forum, whether such claims are known
or unknown, accrued or unaccrued, suspected or unsuspected,
liquidated or contingent, direct or indirect; provided,
however, that any claims arising after the Effective Date from the
then present effect of acts or conduct occurring before the
Effective Date shall be deemed released under this Agreement. This
release includes but is not limited to rights and claims arising
under Title VII of the Civil Rights Act, the Age Discrimination in
Employment Act, the Older Workers Benefit Protection Act of 1990,
the Americans with Disabilities Act, the Genetic Information
Nondiscrimination Act, the Family and Medical Leave Act, the
Virginia Civil Rights Act, the Virginia Whistleblower Statute, and
any state leave or workers’ compensation retaliation law.
Notwithstanding the foregoing, the provisions of this Section 4(a)(i) do not apply
to, and Executive does not release the Company or any other
Released Party in respect of (i) any claims arising under this
Agreement, (ii) any rights, benefits or claims Executive has or may
have as the holder of any equity securities issued by the Company
and/or the Fusion Group; (iii) any rights and/or claims under the
Company’s employee benefit plans pursuant to COBRA; (iv) any
claims that the law does not permit Executive to release; (v) any
claim arising after the Effective Date; and (vi) any claim or right
to indemnification of Executive in his capacity as an officer of
the Fusion Group and any other related rights Executive may have
under New Jersey or Virginia State law, the certificate of
formation or operating agreement of the Company or any insurance
policy maintained by the Company (collectively, the
“Excluded
Claims”).
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(ii)
Subject to the foregoing Section 4(a)(i), the foregoing release shall be
construed as broadly as possible and shall also extend to release
the Released Parties, without limitation, from any and all claims
that Executive has alleged or could have alleged, whether known or
unknown, accrued or unaccrued, suspected or unsuspected against the
Company or any Released Party which Executive may have to recover
money, or damages of any kind, or to reinstatement as a result of
any actions, claims, complaints or charges brought by him or on his
behalf under any federal, state or common law.
The
term “Released
Parties” or “Released
Party” as used herein shall mean and include: the
Company, and its parent, subsidiaries, affiliates, and all of their
predecessors and successors (collectively, the “Released
Entities”), and with respect to each such Released
Entity, all of its former, current, and future officers, directors,
agents, managers, representatives, employees, owners, shareholders,
members, partners, joint venturers, attorneys, insurers,
administrators and fiduciaries, and any other persons acting by,
through, under, or in concert with any of the persons or entities
listed herein.
(iii) Nothing
in this Agreement shall preclude Executive from filing or
prosecuting a charge or complaint, participating in an
investigation or proceeding or otherwise communicating with any
federal, state or local government or regulatory agency, including
those charged with the enforcement of employment discrimination
laws such as the Equal Employment Opportunity Commission or similar
state agency. It is further agreed that no term or provision of
this Agreement shall be construed to limit Executive’s right
to accept an incentive award, if eligible, from the Securities and
Exchange Commission pursuant to Rule 21F-17 of the Securities
Exchange Act of 1934, as amended.
(iv) Pursuant
to the Older Workers Benefit Protection Act, Executive understands
and acknowledges that by executing this Agreement and releasing all
claims against any of the Released Parties, he has waived any and
all rights or claims that he has or could have against any Released
Party under the Age Discrimination in Employment Act or similar
laws, which includes any claim that any Released Party
discriminated against Executive on account of his age. Executive
also acknowledges the following:
(A)
The Company, by
this written Agreement, has advised Executive to consult with an
attorney prior to executing this Agreement;
(B)
This Agreement does
not include claims arising after the Separation Date, provided, however, that any claims
arising after the Separation Date from the then-present effect of
acts or conduct occurring before the Separation Date shall be
deemed released under this Agreement;
(C)
The Company has
provided Executive the opportunity to review and consider this
Agreement for a period of at least twenty-one (21) days from the
date he receives this Agreement. At Executive’s option and
sole discretion, he may waive the twenty-one (21) day review period
and execute this Agreement before the expiration of twenty-one (21)
days. If Executive elects to waive the twenty-one (21) day review
period, Executive acknowledges and admits that he was given a
reasonable period of time within which to consider this Agreement
and his waiver is made freely and voluntarily, without duress or
any coercion by any other person; and
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(D)
Executive may
revoke the provisions of this Section 4(a)(iv) within a
period of seven (7) days after execution of this Agreement.
Executive agrees that any such revocation is not effective unless
it is made in writing and delivered to the Company, to the
attention of the Vice President, Human Resources and
Administration, by the end of the seventh (7th) calendar day. Under
any such valid revocation, Executive shall not be entitled to the
benefits granted under Sections 2(a) through 2(c) as consideration
for Executive’s Release in Section 4. The provisions of this
Section 4(a)(iv)
will become effective on the eighth (8th) calendar day after this
Agreement is executed by both parties.
(v)
Executive confirms that no claim, charge, or complaint against any
of the Released Parties, brought by him, exists before any federal,
state, or local court or administrative agency. Executive hereby
waives his right to accept any relief or recovery, including costs
and attorney’s fees, from any charge or complaint before any
federal, state, or local court or administrative agency against any
of the Released Parties, except in respect to Excluded Claims or as
such waiver is prohibited by law.
(vi)
With respect to any claim released under this Section 4(a),
Executive agrees that he will not, unless otherwise prohibited by
law, at any time hereafter, participate in as a party, or permit to
be filed by any other person on his behalf or as a member of any
alleged class of persons, any action or proceeding of any kind,
against the Released Parties or any past, present or future
Executive benefit and/or pension plans or funds of the Released
Entities with respect to any act, omission, transaction or
occurrence up to and including the Separation Date, except in
respect of Excluded Claims. Executive further agrees that he will
not seek or accept any award or settlement from any source or
proceeding with respect to any claim or right covered by this
paragraph of this Agreement and that this Agreement shall act as a
bar to recovery in any such proceedings.
(vii)
Executive agrees that neither this Agreement nor the furnishing of
the consideration for the general release set forth in this
Agreement shall be deemed or construed at any time for any purpose
as an admission by any Released Parties of any liability or
unlawful conduct of any kind. Executive further acknowledges and
agrees that the consideration provided for herein is adequate
consideration for Executive’s obligations under this
Agreement.
(viii)
If Executive executes this Agreement prior to the Separation Date,
Executive agrees that he will sign the release attached hereto as
Annex
A on the Separation Date. If Executive does not sign
Annex
A at such time, the Company and Executive will be relieved
of all of their respective obligations hereunder and this Agreement
shall be null and void.
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(b)
Release of Claims by
Company. Subject to the provisions of this Agreement and
subject to Executive not exercising his revocation rights
hereunder, the Company, on behalf of itself and other members of
the Fusion Group, and the Released Parties hereby release Executive
and his family members, heirs, executors, personal representatives,
successors and assigns from any and all claims, promises, demands,
contracts, losses, debts, obligations, rights, suits, damages,
actions, causes of action of every kind and nature,
attorneys’ fees, remedies, and liabilities whatsoever,
whether known or unknown, foreseen or unforeseen, suspected or
unsuspected existing as of the Separation Date, in law, at equity,
or otherwise (except for willful misconduct, gross negligence, or
breach of fiduciary duty that results in a personal monetary profit
to Executive at the expense of the Company) that the Company, any
Released Party or any other member of the Fusion Group would have
been legally entitled to assert in its own right or that any other
person or entity would have been able to assert on behalf of the
Company, any Released Party or any other member of the Fusion
Group, based in whole or in part upon any act or omission,
transaction, agreement, event, or other occurrence related to the
Company, any Released Party or any other member of the Fusion
Group, taking place before and on the Separation Date, provided,
however, any claims arising after the Effective Date from the then
present effect of acts or conduct occurring before the Effective
Date shall be deemed released under this Agreement.
SECTION
5. Miscellaneous.
(a)
Applicable Law.
This Agreement is entered into under, and shall be governed for all
purposes by, the laws of the Commonwealth of Virginia without
giving effect to any choice of law principles which could cause the
application of the laws of another jurisdiction.
(b)
No Waiver. No
failure by either party at any time to give notice of any breach by
the other party of, or to require compliance with, any condition or
provision of this Agreement shall (a) be deemed a waiver of similar
or dissimilar provisions or conditions at the same or at any prior
or subsequent time, or (b) preclude insistence upon strict
compliance in the future.
(c)
Severability. If a
court of competent jurisdiction determines that any provision of
this Agreement is invalid or unenforceable, then the invalidity or
unenforceability of that provision shall not affect the validity or
enforceability of any other provision of this Agreement, and all
other provisions shall remain in full force and effect and such
invalid or unenforceable provision shall be reformulated by such
court to preserve the intent of the parties. If any portion of the
release set forth in Section 4(a) of this Agreement
is declared to be unenforceable by a court of competent
jurisdiction in any action in which Executive participates or
joins, Executive agrees that all consideration paid to him under
this Agreement shall be offset against any monies that he may
receive in connection with any such action.
(d)
Counterparts. This
Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original, but all of which together
will constitute one and the same Agreement.
(e)
Headings. The
paragraph headings have been inserted for purposes of convenience
and shall not be used for interpretive purposes.
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(f)
Plurals. Wherever
the context so requires, the singular number includes the plural
and conversely.
(g)
Assignment. This
Agreement is binding on Executive and the Company and their
successors and assigns; provided, however, that the rights and
obligations of the Company under this Agreement may be assigned to
a successor entity. In the event of the merger, consolidation,
transfer or sale of all or substantially all of the assets of the
Company or any similar event, this Agreement shall, subject to the
provisions hereof, be binding upon and inure to the benefit of such
successor, and such successor shall discharge and perform all of
the promises, covenants, duties and obligations of the Company
hereunder. No rights or
obligations of Executive hereunder may be assigned by Executive to
any other person or entity, except by will or the laws of descent
and distribution. In the event of Executive’s death prior to
receipt by Executive of all amounts payable by the Company
hereunder, such amounts shall be payable to Executive’s
designated beneficiaries on the same schedule as provided for in
this Agreement.
(h)
Entire Agreement.
Except as otherwise specifically provided herein, this Agreement
constitutes the entire agreement of the parties with regard to the
subject matter hereof, contains all of the covenants, promises,
representations, warranties and agreements between the parties and
supersedes all prior agreements between Executive and the Company
or any of its predecessors or affiliates, including but not limited
to any change in control or severance benefit plan or arrangement
and any bonus plan or arrangement. Except as otherwise provided
herein, each party acknowledges that no representation, inducement,
promise or agreement, oral or written, has been made by either
party, or by anyone acting on behalf of either party, which is not
embodied herein, and that no agreement, statement, or promise
created hereby, that is not contained in this Agreement, shall be
valid or binding. Any modification of this Agreement will be
effective only if it is in writing and signed by both
parties.
(i)
Choice of Forum.
Any and all disputes relating to or arising from this Agreement
shall be brought exclusively in the federal or state courts with
jurisdiction over Fairfax County, Virginia, and the parties hereby
expressly represent and agree that they are subject to personal
jurisdiction of said courts, and each of the parties hereby
irrevocably consents to the jurisdiction of such courts in any
legal or equitable proceedings related to such dispute and waives,
to the fullest extent permitted by law, any objection which it may
now or hereafter have that the laying of venue of any legal
proceedings related to such dispute which is brought in any such
court is improper or that such proceedings should have been brought
in an inconvenient forum.
(j)
Construction. This
Agreement shall be interpreted without regard to the identity of
the drafter and shall not be construed for or against either
party.
(k) No
Jury Trial. By signing below, Executive waives his right to
a jury trial.
(l)
Taxes/Tax
Withholding. The Company does not make any representation or
warranty with respect to the tax consequences of any consideration
or other actions under this Agreement or otherwise. Executive shall
be solely responsible for all income taxes, capital gains, use,
sales or similar taxes and payments due to governmental authorities
with respect to all consideration provided for hereunder that have
not been deducted by the Company. The Company may withhold from
amounts payable to Executive hereunder any federal, state, city or
other taxes the Company is required to withhold pursuant to any law
or government regulation or ruling.
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(m)
Notices. For
purposes of this Agreement, notices and all other communications
provided for herein shall be in writing and shall be deemed to have
been duly given when personally delivered or when mailed by United
States registered or certified mail, return receipt requested,
postage prepaid, addressed as follows: to Executive – 0000
Xxxxxxx Xxxxxxxx Xxxxx, XxXxxx, XX 00000 and to the Company –
00000 Xxxx Xxxxxx Xx., Xxxxx 000, Xxxxxxx, XX 00000.
(n)
Confidentiality.
The parties agree that the terms and conditions of this Agreement
are confidential and that each will not, without the express prior
written consent of the other party, in any manner publish,
publicize, disclose or otherwise make known or permit or cause to
permit or cause to be known such terms and conditions as anyone
(other than such party’s financial advisors and legal
advisors who agree not to disclose such terms), except as required
by law or in any proceeding to enforce the terms of this Agreement.
Executive shall be permitted to disclose such terms and conditions
to his family members and personal advisors.
(o) Section
409A. This Agreement is intended to comply with Section 409A
(“Section
409A”) of Internal Revenue Code of 1986, as amended
(the “Code”)
or an exemption thereunder and shall be construed and administered
in accordance with Section 409A. Notwithstanding any other
provision of this Agreement, payments provided under this Agreement
may only be made upon an event and in a manner that complies with
Section 409A or an applicable exemption. Any payments under this
Agreement that may be excluded from Section 409A either as
separation pay due to an involuntary separation from service or as
a short-term deferral shall be excluded from Section 409A to the
maximum extent possible. For purposes of Section 409A, each
installment payment provided under this Agreement shall be treated
as a separate payment. Any payments to be made under this Agreement
upon a termination of employment shall only be made upon a
“separation from service” under Section 409A.
Notwithstanding any other provision of this Agreement, if any
payment or benefit provided to the Executive in connection with his
termination of employment is determined to constitute
“nonqualified deferred compensation” within the meaning
of Section 409A and the Executive is determined to be a
“specified employee” as defined in Section
409A(a)(2)(b)(i) of the Code, then such payment or benefit shall
not be paid until the first payroll date to occur following the
six-month anniversary of the Executive’s separation from
service or, if earlier, on the Executive’s death (the
“Specified Employee
Payment Date”). The aggregate of any payments that
would otherwise have been paid before the Specified Employee
Payment Date shall be paid to the Executive in a lump sum on the
Specified Employee Payment Date and thereafter, any remaining
payments shall be paid without delay in accordance with their
original schedule.
SECTION
6. Executive
Acknowledgements.
Executive
acknowledges that:
(a)
He has read and understands the terms of this Agreement and has
voluntarily agreed to these terms without coercion or undue
persuasion by the Company or any officer, director or other agent
thereof;
(b)
He has been encouraged by the Company to seek competent legal
counsel in his review and consideration of this Agreement and its
terms; and
(c)
This Agreement does not purport to waive, and does not waive, any
rights Executive may have which arise after the Separation
Date.
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IN WITNESS WHEREOF, the undersigned have
executed this Agreement on the day and year first above
written.
FUSION
LLC
By:
/s/ Xxxxx
Xxxxxxx
Name:
Xxxxx Xxxxxxx
Title:
VP, Human Resources and Administration
EXECUTIVE
/s/ Xxxxxx Xxxxxxxx, Xx.
Xxxxxx
Xxxxxxxx, Xx.
WITH
RESPECT TO SECTION 2(c) ONLY:
By:
/s/ Xxxxx
Xxxxxxx
Name: Xxxxx
Xxxxxxx
Title:
VP, Human Resources and Administration
Annex A – Release
Release of Claims by Xxxxxx Xxxxxxxx, Xx.
(a)
Release.
Subject to the satisfaction by Fusion Connect, Inc. (the
“Company”) of
every obligation under the Separation Agreement, dated November 8,
2018 (the “Agreement”),
between the Company and Xxxxxx
Xxxxxxxx, Xx. (the “Executive”), including, but not
limited to, the full satisfaction of the payment obligations under
Section 2 thereof,
Executive hereby releases and absolutely and forever discharges the
Company, and its parent, subsidiaries, affiliates, and all of their
predecessors and successors and with respect to each of such
parties all of its former, current and future officers, directors,
managers, representatives, employees, servants, owners,
shareholders, members, partners, joint venturers, attorneys,
insurers, administrators, and fiduciaries, and any other persons
acting by, through, under, or in concert with any of the persons or
entities listed herein (collectively referred to as the
“Released
Parties”), from any and all suits, demands, damages,
causes of action, contracts, and any and all claims in law or in
equity, whether now known or unknown, arising out of
Executive’s employment with the Company, which he, his heirs,
executors, administrators or assigns, have or may have against the
Released Parties, including, but expressly not limited to, any
claims which he may have to recover, or share in the recovery of,
money or damages of any kind, or to reinstatement as a result of
any actions, claims, complaints or charges brought by him or on his
behalf under any federal, state or common law.
Executive understands and acknowledges that by executing this
release and releasing all claims against any of the Released
Parties arising prior to the date of this release, he has waived
any and all rights or claims that he has or could have against any
Released Party under Title VII of the Civil Rights Act, the Age
Discrimination in Employment Act, the Older Workers Benefit
Protection Act of 1990, the Americans with Disabilities Act, the
Genetic Information Nondiscrimination Act, the Family and Medical
Leave Act, the Virginia Civil Rights Act, the Virginia
Whistleblower Statute, and any state leave or workers’
compensation retaliation law.
Executive also acknowledges the following:
(i)
The Company has advised Executive to consult with an attorney prior
to executing the Agreement and this release.
(ii)
This release does not include claims arising after the date of its
execution Date, provided, however, that any claims
arising after the date hereof from the then-present effect of acts
or conduct occurring before the date hereof shall be deemed
released hereunder;
(iii)
The Company has given Executive the opportunity to review and
consider the Agreement for a period of at least twenty-one (21)
days from the date he received the Agreement. At
Executive’s option and sole discretion, he was permitted to
waive the twenty-one (21) day review period and execute the
Agreement before the expiration of twenty-one (21) days. If
Executive elected to waive the twenty-one (21) day review period,
Executive acknowledges and admits that he was given a reasonable
period of time within which to consider the Agreement and his
waiver is made freely and voluntarily, without duress or any
coercion by any other person.
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(iv) Executive
may revoke this release within a period of seven (7) days after its
execution by Executive. Executive agrees that any such
revocation is not effective unless it is made in writing and
delivered to the Company, to the attention of Xxxxx Xxxxxxx, Vice
President, Human Resources and Administration, 00000 Xxxx Xxxxxx
Xx., Xxxxx 000, Xxxxxxx, XX 00000 or her
successor, by the end of the seventh (7th) calendar day.
If Executive revokes this release, the Company will be relieved of
all of its obligations under the Agreement and Executive shall be
obligated to pay back to the Company any amounts previously paid
under Section 2 thereof.
(v)
Executive confirms that he has brought no claims, charges, or
complaints against any of the Released Parties before any federal,
state, or local court or administrative agency. However,
nothing in the Agreement or this release shall be construed as
prohibiting Executive from filing a charge with, or participating
in any investigation or proceeding conducted by, the Equal
Employment Opportunity Commission or a comparable state or local
agency. Executive hereby waives his right to accept any
relief or recovery, including costs and attorney’s fees, from
any charge or complaint before any federal, state, or local court
or administrative agency against any of the Released Parties,
except to the extent that such waiver is prohibited by
law.
(vi)
Except as otherwise provided in subparagraph (v) above, Executive
agrees he will not voluntarily participate in any judicial
proceeding of any nature or description against any Released
Parties that in any way involves any allegations and facts arising
out of Executive’s employment with the Company that he could
have raised against any Released Parties as of the date
hereof.
(vii)
Executive agrees that neither the Agreement, this release nor the
furnishing of the consideration for the general release set forth
in the Agreement or this release shall be deemed or construed at
any time for any purpose as an admission by any Released Parties of
any liability or unlawful conduct of any kind. Executive
further acknowledges and agrees that the consideration provided for
in the Agreement is adequate consideration for Executive’s
obligations under the Agreement and this release.
(b) Excluded Claims.
Executive does not release any Released Party in respect of (i) any
claims arising under the Agreement, (ii) any rights, benefits or
claims Executive has or may have as the holder of any equity
securities issued by the Company and/or the Fusion Group, (iii) any
rights and/or claims under COBRA, (iv) any claims that the law does
not permit Executive to release, (v) any claim or right to
indemnification of Executive in his capacity as an officer of the
Company or any other Fusion Company and any other related rights
Executive may have under New Jersey or Virginia State law, the
Charter or bylaws of the Company, or any insurance policy
maintained by the Company, or (vi) any rights, benefits or claims
Executive, his spouse or his eligible dependents may have as a
terminated but vested employee (or eligible dependent thereof) in
accordance with the terms of the Company’s benefit
plans.
EXECUTIVE
________________________________________
Date:
, 2018
Xxxxxx
Xxxxxxxx, Xx.
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