EXHIBIT 10.2
SETTLEMENT AGREEMENT AND RELEASE AND WAIVER
-------------------------------------------
This Agreement by and between Xxxx Xxxxxxx (the "Executive") and
WorldPort Communications, Inc. (the "Company") is dated as of June 14, 2000.
1. Consideration
The Company agrees to pay the Executive a lump sum amount of $500,000.
The Company will pay such amount within five (5) business days after this
Agreement becomes effective under Section 10 below.
2. Stock Options
The parties agree that Executive is vested and may exercise options to
purchase up to 103,122 shares of the Company's Common Stock. Such vested options
will remain exercisable pursuant to the terms of the stock option agreement
under which they were granted (a copy of which is attached as Exhibit A). The
parties further agree that the Executive shall forfeit any other options that
have been previously granted to him.
3. Termination
The Executive hereby resigns from all officer, director and other
positions and employment with the Company and its affiliates effective April 24,
2000.
4. Mutual Release and Waiver
a. Release by Executive. The Executive hereby releases and waives
--------------------
all rights, claims and causes of action, known and unknown, in contract, law and
equity, of any kind whatsoever, that he now has or may have against the Company
and its past and present officers, directors, employees, affiliates,
subsidiaries, divisions, joint ventures, shareholders, agents, attorneys,
benefit plans and plan administrators, fiduciaries, successors and/or assigns
(collectively and individually referred to as the "Releasees" in this
Agreement). This release and waiver includes but is not limited to:
i. any claims for assault, battery, wrongful termination,
defamation, invasion of privacy, intentional infliction of
emotional distress, or any other tort or common law claims;
ii. any claims for the breach of any written, implied or
oral contract between the Executive and the Company,
including, but not limited to, any claims under the
Employment Agreement between the Executive and the Company
dated June 23, 1999, as amended;
iii. any claims of discrimination, harassment or
retaliation based on such things as age, national origin,
ancestry, race, color, religion, sex (including sexual
harassment), sexual orientation, and physical or mental
disability or medical condition;
iv. any claims for payments of any nature, including, but
not limited to, wages, overtime pay, vacation pay, severance
pay, attorneys' fees, commissions, bonuses and expense
reimbursements;
v. any claims for benefits or the monetary equivalent of
benefits; and
vi. any claims to reinstatement to the Executive's
previous position with or rehire or reemployment by the
Company.
The release and waiver includes all claims that the Executive has or
may have under all federal, state and local statutes, ordinances, rules,
regulations and orders, including, but not limited to, any claims or causes of
action based on the Fair Labor Standards Act, Title VII of the Civil Rights Act
of 1964, the Age Discrimination in
Employment Act, the Family and Medical Leave Act, the Americans with
Disabilities Act, the Civil Rights Acts of 1866, 1871 and 1991, the
Rehabilitation Act of 1973, the National Labor Relations Act, the Employee
Retirement Income Security Act of 1974, the Vietnam Era Veterans' Readjustment
Assistance Act of 1974, Executive Order 11246, the Illinois Wage Payment and
Collection Act, the Illinois Human Rights Act, the Xxxx County Human Rights
Ordinance, and the Chicago Human Rights Ordinance as each of them has been or
may be amended. Notwithstanding the above, the Executive's release and waiver of
rights does not apply to any rights which are not waivable by law (such as
rights to vested pension benefits, workers' compensation benefits and
unemployment compensation benefits).
b. Release by Company. The Company releases and waives all known and
------------------
disclosed rights, claims and causes of action in contract, law and equity, of
any kind whatsoever, that the Company now has or may have against the Executive
and his representatives or administrators. This release does not, however,
include any rights, claims or causes of action unknown or undisclosed to the
Chief Executive Office of the Company as of the date of execution.
5. Return of Property
The Executive has returned all property of the Company in his possession,
including but not limited to, files, keys, financial information, notebooks,
records and any material which refers or relates to or contains the Company's
confidential and proprietary business information which was in his possession.
6. Cooperation
The Executive agrees to cooperate in the defense or prosecution of any
claims made against any of the Releasees which are based, in whole or in part,
on any event which occurred while he was an employee of the Company. Such
cooperation shall include, but not be limited to, providing information,
documents and testimony upon the request of the Company. The Company agrees to
reimburse the Executive for any reasonable costs associated with such
cooperation.
7. Indemnification
To the fullest extent permitted by the Company's Certificate of
Incorporation and By-Laws and by the Delaware General Corporation Law, in each
case as currently in effect, the Company will indemnify the Executive for any
judgments, fines, amounts paid in settlement and reasonable expenses, including
attorney's fees, incurred by the Executive in connection with the defense of any
lawsuit or other claim to which he is made a party by reason of being or having
been an officer, director or employee of the Company or any of its subsidiaries.
In addition, the Executive shall be entitled to the protection of any director
and officer liability insurance policies the Company may elect to maintain
generally for the benefit of its directors and officers to the maximum extent of
coverage available for any such officer or director.
8. Confidential Information
The Executive shall hold in fiduciary capacity for the benefit of the
Company all secret or confidential information, knowledge or data relating to
the Company and its affiliates, which shall have been obtained by the Executive
pursuant to his employment by the Company or any of its affiliates and which
shall not have become public knowledge (other than by acts by the Executive or
his representatives in violation of this Agreement). Except as may be required
by law or judicial process, the Executive shall not, without the prior written
consent of the Company, communicate or divulge any such information, knowledge
or date to anyone other than the Company and those designated by it.
9. Restrictive Covenants
a. Nonsolicitation. The Executive shall not prior to April 24, 2001
directly or indirectly solicit and will not act on behalf of his employer or any
other person or entity to directly or indirectly solicit any officers or
2
employees of the Company or any of its affiliates for employment or other
retention, without the prior written consent of the Company.
b. Noncompetition. The Executive shall not prior to April 24, 2001,
directly or indirectly be affiliated with, whether as a shareholder, partner,
consultant, director, officer, employee, owner, promoter, consultant, manager,
sales agent or otherwise, any firm, company corporation, partnership limited
liability company or other entity which owns, conducts, operates or manages a
web hosting business in Europe; provided, however, that the Executive may
undertake such engagement if such engagement does not include the Executive's
provision of services, advice or counseling to the division of any business that
owns, conducts, operates or manages a web hosting business in Europe; provided,
however, that the foregoing provision shall not restrict the Executive from
owning up to two percent (2%) of the outstanding shares of capital stock of a
company whose securities are publicly traded on a national securities exchange.
10. Knowing and Voluntary Release
The Executive is signing this Agreement voluntarily and of his own free
will and not because of any threats or duress. The Executive has been given
twenty-one (21) calendar days to consider this Agreement. This Agreement will
become effective on the eighth (8th) day following the date on which this
Agreement is executed by the Executive, unless the Executive revokes this
Agreement in writing prior to that date.
11. Entire Agreement and Severability
This Agreement contains the entire agreement between the Executive and the
Company, and they take priority over any other written or oral understanding or
contract that may have existed in the past. If any portion, provision or
section of this Agreement is held to be invalid or legally unenforceable, the
remaining portions, provisions and sections of this Agreement will not be
affected and will be given full force and effect.
12. Non-Admission
The Executive and the Company agree that this Agreement is not an admission
by either party of any wrongdoing or liability whatsoever, but results from a
mutual desire to resolve all actual and potential disputes regarding anything
that has occurred prior to the date the parties execute this Agreement.
13. Applicable Law
All provisions of this Agreement will be construed and governed by Illinois
law, without regard to the laws of any other location.
HAVING READ AND UNDERSTOOD THIS AGREEMENT, CONSULTED AN ATTORNEY OR OTHER
REPRESENTATIVE, AND HAD SUFFICIENT TIME TO CONSIDER WHETHER TO ENTER INTO THIS
AGREEMENT, THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT AS OF THE DAY AND
YEAR WRITTEN BELOW.
WORLDPORT COMMUNICATIONS, INC.
_______________________________
XXXX XXXXXXX By:_______________________________
Is:_______________________________
Date: June 14, 2000 Date: June 14, 2000
3
