SEPARATION AGREEMENT AND RELEASE OF ALL CLAIMS
This Separation Agreement and Release of All Claims ("Agreement/Release")
is between The Network Connection, Inc., a Georgia corporation, its successors
and assigns ("Company"), and Xx. Xxxxx X. Xxxxx ("Xxxxx") and is entered into as
of the 28th day of March 2000.
WHEREAS, Gomer has been employed by Company and Gomer has submitted his
resignation and Company has agreed to accept Gomer's resignation and Gomer's
employment relationship with Company shall terminate effective as of March 28,
2000; and
WHEREAS, Company and Gomer desire to settle and forever resolve and dispose
of all and any factual disputes, claims, demands, differences, or other matters,
relating to Gomer's employment or resignation and separation from employment
with Company.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, Company and Gomer, intending to be legally bound, do hereby
agree as follows:
1. Gomer's last day of work for Company will be March 28, 2000 (the
"Termination Date").
2. In consideration of this Agreement/Release, Gomer will be eligible to
receive payment of his salary at the rate at which it was being paid as of the
Termination Date, payable in accordance with Company's regular payroll practices
in effect from time to time, less normal withholdings and deductions, and
Company shall continue to provide to Gomer the benefits that he was receiving as
of the Termination Date, for a period of 12 months from the Termination Date
(the "Limited Consulting Period"), upon return of this signed Agreement/Release
and after the revocation period in Paragraph 13 has expired. As further
consideration, Gomer shall also be entitled to receive an additional cash
payment of $28,500, less normal withholdings and deductions, upon return of this
signed Agreement/Release and after the revocation period in Paragraph 13 has
expired. This additional cash payment shall be paid to Gomer within five days
after the aforementioned revocation period has expired.
3. In further consideration of this Agreement/Release, the parties agree as
follows:
(a) Gomer shall make himself available to Company from time to time as
reasonably requested during the Limited Consulting Period in order to provide
consulting services to Company regarding all aspects of the AVNET and Swissair
matters in which Company is currently, and may in the future become, involved.
Gomer shall not be obligated to provide consulting services to Company on any
other matters. In no event shall these consulting services require more than 60
hours of Gomer's time in any month during the Limited Consulting Period. Gomer
shall provide such services at such times as are reasonably requested by
Company.
(b) Except for any and all options granted to Gomer to purchase shares of
the Company's and Global Technologies, Ltd.'s ("Global") common stock that are
vested as of the date hereof (the "Vested Options"), and the options granted to
him to purchase 10,000 shares of the Company's common stock that vest on June
11, 2000 (the "Escrow Options"), any and all options to purchase common stock of
either of the Company or Global that have been granted to Gomer shall be deemed
canceled, terminated and expired as of the Termination Date and he shall have no
further right or claim to any of such options. These options shall not expire on
an accelerated basis as would otherwise be the case in connection with a
termination from employment, but rather Gomer shall have until the respective
expiration dates set forth in the stock option plan and/or grant documents
relating to the Vested Options to exercise such options.
(c) The Escrow Options will be held in escrow and shall be released to
Gomer contemporaneously with expiration of the Limited Consulting Period,
assuming that Gomer has not breached any term, condition, covenant or other
provision of this Agreement/Release. In the event that these options are
released to Gomer, they will not have expired on an accelerated basis as would
otherwise be the case in connection with a termination from employment, but
rather Gomer will have until the respective expiration dates set forth in the
stock option plan and/or grant documents relating to the Escrow options to
exercise them.
4. (a) During the Limited Consulting Period, Gomer shall not directly or
indirectly induce or attempt to influence any Personnel (as hereinafter defined)
to terminate his or her employment with Company and shall not engage in (as a
principal, partner, director, officer, agent, executive, consultant or
otherwise) or be financially interested in any business operating within the
continental United Stated, which is involved in business activities which are
the same as, similar to, or in competition with business activities carried on
by Company, or being definitely planned by Company, as of the Termination Date.
However, nothing contained in this subparagraph 4(a) shall prevent Gomer from
holding for investment no more than five percent (5%) of any class of equity
securities of a company whose securities are traded on a national securities
exchange or on the Nasdaq National Market. As used herein, the term "Personnel"
means all directors, officers, managers, members, general partners, employees,
agents, brokers, consultants, representatives or other persons or entities
rendering services to Company or any affiliate thereof for compensation in any
form, whether employed by or independent of Company or any of its affiliates.
(b) All advertising, sales, manufacturers', and other materials or articles
of information, including without limitation data processing reports, customer
sales analyses, invoices, price lists or information, samples, budgets, business
plans, strategic plans, financing applications, reports, memoranda,
correspondence, financial statements, and any other materials or data of any
kind furnished to Gomer by Company or developed by Gomer on behalf of Company or
at Company's direction or for Company's use or otherwise in connection with
Gomer's employment with Company, are and shall remain the sole and confidential
property of Company. Gomer shall immediately return any and all such materials
that are within his possession or control to the Company. During the Limited
Consulting Period and at all times thereafter, Gomer shall not use for his
personal benefit, or disclose, communicate or divulge to, or use for the direct
or indirect benefit of any person, firm, association or company other than the
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Company, any material referred to in this Paragraph or any information regarding
the business methods, business policies, procedures, techniques, research or
development projects or results, trade secrets, or other knowledge or processes
of or developed by Company or any names or addresses of customers or clients,
any data on or relating to past, present or prospective customers or clients, or
any other confidential information relating to or dealing with the business
operations or activities of Company, made known to Gomer or learned or acquired
by Gomer while in the employ of Company.
(c) During the Limited Consulting Period and indefinitely thereafter, Gomer
shall not, directly or indirectly, make any statement (oral or written, or by
non-verbal communication or conduct) disparaging, deprecating, censuring or
otherwise adversely affecting the reputation of Company or any of its affiliates
or any of their respective products, services, Personnel or operations. During
the Limited Consulting Period and indefinitely thereafter, no director or
executive officer of either of Company or Global Technologies, Ltd. shall,
directly or indirectly, make any statement (oral or written, or by non-verbal
communication or conduct) disparaging, deprecating, censuring or otherwise
adversely affecting the reputation of Gomer. Company agrees that, in the event
of a breach of this provision, Gomer will be irreparably damaged and that any
violation of the immediately preceding sentence shall result in (i) the
immediate release of the Escrow Options, (ii) termination of Gomer's consulting
obligations contained herein, and (iii) immediate payment of any remaining
balance of the payments due to Gomer pursuant to Paragraph 2 above, as opposed
to in accordance with regular payroll practices of Company.
(d) Any and all reports, plans, budgets, writings, inventions,
improvements, processes, procedures and/or techniques that Gomer may have made,
conceived, discovered or developed, either solely or jointly with any other
person of persons, during the term of his employment with Company, whether
during working hours or at any other time and whether at the request or upon the
suggestion of the Company or otherwise, which relate to or are useful in
connection with any business now or hereafter carried on or contemplated by the
Company, including developments or expansions of its present fields of
operations, shall be the sole and exclusive property of the Company. Gomer shall
make full disclosure to Company of any and all such reports, plans, budgets,
writings, inventions, improvements, processes, procedures and techniques, and
shall do everything reasonably necessary or desirable to vest the absolute title
thereto in the Company. Gomer shall write and prepare all specifications and
procedures regarding such inventions, improvements, processes, procedures and
techniques and otherwise aid and assist the Company so that the Company can
prepare and present applications for copyright or Letters Patent therefor and
can secure such copyright or Letters Patent wherever possible, as well as
reissues, renewals and extensions thereof, and can obtain record title to such
copyright or patents so that Company shall be the sole and absolute owner
thereof in all countries in which it may desire to have copyright or patent
protection. Gomer shall not be entitled to any additional or special
compensation or reimbursement regarding any and all such writings, inventions,
improvements, processes, procedures and techniques.
(e) Executive acknowledges that the restrictions contained in the foregoing
subparagraphs (a), (b), (c), (d) and (e) in view of the nature of the business
in which Company is engaged, are reasonable and necessary in order to protect
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the legitimate interests of Company, and that any violation thereof would result
in irreparable injuries to Company, and Executive therefore acknowledges that,
in the event of his violation of any of these restrictions, Company shall be
entitled to obtain from any court of competent jurisdiction preliminary and
permanent injunctive relief as well as damages and an equitable accounting of
all earnings, profits and other benefits arising from such violation, which
rights shall be cumulative and in addition to any other rights or remedies to
which Company may be entitled.
(f) If the period of time or the area specified in subparagraph (a) above
should be adjudged unreasonable in any proceeding, then the period of time shall
be reduced by such number of months or the area shall be reduced by the
elimination of such portion thereof or both so that such restrictions may be
enforced in such area and for such time as is adjudged to be reasonable. If
Executive violates any of the restrictions contained in such subparagraph (a),
the restrictive period shall not run in favor of Executive from the time of the
commencement of any such violation until such time as such violation shall be
cured by Executive to the satisfaction of Company. Gomer hereby acknowledges
that Company's payments and provision of benefits to him during the Limited
Consulting Period, and Company's other obligations to him hereunder, constitute
fair and adequate consideration for his compliance herewith, and he shall not be
entitled to any other payment or consideration for such compliance. Gomer
further acknowledges that any violation of any of the provisions of this
Paragraph 4 shall constitute a material violation of this Agreement/Release and,
pursuant to Paragraph 11 herein, shall entitle Company to the return of any
consideration provided by Company.
5. Gomer acknowledges and understands that this Agreement/Release is not
meant to imply and does not imply that Company is liable to Gomer for anything
on account of any reason whatsoever. Company does not admit and expressly denies
that it is liable to Gomer on account of any reason whatsoever and Gomer by
executing this Agreement/Release acknowledges that Company is not liable to
Gomer on account of any reason whatsoever.
6. Gomer hereby releases and forever discharges Company and its members,
managers, officers, shareholders, directors, agents, servants, and employees
from all causes of action, claims, suits, debts, accounts, controversies, sums
of money, contracts, promises, agreements, judgments, demands, and liabilities
of any kind or nature whatsoever in law, in equity, or otherwise, whether known
or unknown, whether asserted or unasserted, especially from any and all claims
for compensation, benefits, bonuses, incentives, commissions, expenses, wages,
severance pay, vacation pay, fringe benefits, emotional distress, or other
monies or accountings, including punitive damages, liquidated damages, exemplary
damages, or compensatory damages, physical, mental, or emotional distress, pain
and suffering, back pay, front pay, costs, and attorneys' fees, and any other
legal or equitable relief (hereinafter collectively referred to as "claims") of
or relating to Gomer's employment or separation from employment with Company or
any other cause, reason, matter, or thing whatsoever, regardless of when such
claims may have occurred. The claims released include, but are not limited to,
any claims as might arise under or through any federal or state constitutions,
statutes, regulations or policies, or any other federal or state law, statute,
decision, order, policy, or regulations, including, but not limited to, the Age
Discrimination in Employment Act of 1967, the Older Workers' Benefit Protection
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Act (OWBPA), the Civil Rights Act of 1866, Title VII of the Civil Rights Act of
1964, the Civil Rights Act of 1991, the Pennsylvania Human Relations Act, the
Arizona Civil Rights Act, the Arizona Employment Relationship and Constructive
Discharge Law, any Vocational or Rehabilitation or Handicap Act, Statute or
Regulation, the Americans with Disabilities Act, Family and Medical Leave Act,
and any amendments to any of these Acts, or any fair employment practices, or
other employment discrimination laws, any other federal, state, and local
statute or law relating to hours, wages, and other terms and conditions of
employment, the Fair Labor Standards Act, any wage and hour laws, or any wage
payment and collection related laws, Employee Retirement Income Security Act of
1974 (ERISA), Consolidated Omnibus Budget Reconciliation Act (COBRA),
Occupational Safety and Health Act, and amendments to any and all of these Acts,
any other health, medical, insurance, pension, profit sharing, or fringe benefit
related statute, law or rule, Worker's Compensation laws, the common law, civil
codes, constitutions, actions in tort, or wrongful discharge, or breach of any
employment contract or agreement, or breach of any other contract, express or
implied, or breach of covenant of good faith and fair dealing, or express or
implied public policy of the United States, the Commonwealth of Pennsylvania,
the State of Arizona or any other state.
7. Gomer acknowledges that he has been instructed to and has had the
opportunity to review this Agreement/Release with an attorney or any
representative of his choosing before signing it. Gomer further acknowledges
that he was given 21 days from March 28, 2000 to April 23, 2000 to review and
consider and, in fact, reviewed and considered this Agreement/Release, and has
agreed to its terms.
8. Gomer states that the terms of this Agreement/Release have been
completely read, are fully understood, and are voluntarily accepted after
complete consideration of all facts and legal claims.
9. Gomer knowingly and intentionally waives all rights to employment,
re-employment, and reinstatement at Company under any laws, statutes,
ordinances, or case decisions.
10. Gomer and Company agree that the terms of this Agreement/Release shall
be interpreted under and consistent with the laws of the Commonwealth of
Pennsylvania.
11. Gomer understands and acknowledges that if he violates any provision of
this Agreement/Release in any material respect, all compensation and benefits
shall immediately cease and Company shall be entitled to the return of any
consideration provided by Company.
12. If any court of competent jurisdiction shall hold invalid any part of
this Agreement/Release, then the court making such determination shall have the
right to modify this Agreement/Release and in its reduced form this
Agreement/Release shall be enforceable to the fullest extent permissible by law.
13. Gomer understands and acknowledges that he may revoke this
Agreement/Release within seven days after execution. Any such revocation must be
in writing addressed to X. Xxxxx Silver, The Belgravia, 0000 Xxxxxxxx Xxxxxx,
Xxxxx 000, Xxxxxxxxxxxx, XX 00000. Should Gomer exercise such right of
revocation, he agrees that he immediately will return to the Company all
consideration given to him under the terms of this Agreement/ Release. Gomer and
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the Company further agree this Agreement/ Release does not become effective or
enforceable until the revocation period has expired. In the event Gomer
exercises his right of revocation, this Agreement/Release shall be null and
void. Gomer further understands and acknowledges that following the seven day
revocation period, each and every provision of this Agreement/Release shall
become effective retroactively to the date of this Agreement/Release.
14. The party prevailing in any action at law under this Agreement/Release
shall be entitled to have its reasonable attorneys' fees and other costs of
litigation paid for by the other party to the litigation.
15. This document states the whole agreement between the parties. Any
changes to this Agreement/Release must be in writing and initialed by both
parties.
16. Gomer understands that the amounts of money which shall be paid to him
shall be treated as payment under this Agreement/Release and shall be in
settlement of any disputes he may have with the Company, whether asserted or
unasserted, known or unknown, including, but not limited to, claims referred to
in Paragraph 6.
17. This Agreement/Release and its terms and conditions shall remain
confidential and neither Gomer nor his representatives shall disclose or discuss
the contents, terms, or conditions of this Agreement/Release, except that Gomer
may disclose the terms of this settlement to his immediate family, attorneys,
representative, and/or accountant, or if legally compelled to do so by order or
decree of a court of competent jurisdiction.
18. Gomer acknowledges, warrants, and represents that he has returned
and/or will immediately return any property, documents or other written
material, personnel files, tapes, or discs which contain any information
relating to the business of the Company.
19. Gomer agrees that he will not, directly or indirectly, make or solicit
or encourage others to make any remarks concerning the Company or its officers
which tend to cause the Company to be viewed in an unfavorable or negative light
from the date of this Agreement forward.
20. Gomer understands that if he brings any future legal action or
proceeding of any kind against the Company or makes any claim against the
Company, other than an action or claim based upon a breach of this
Agreement/Release by the Company or upon any action by the Company which occurs
subsequent to the date of this Agreement/Release, the Company shall be entitled
to be reimbursed by Gomer for all legal fees, costs and expenses incurred by the
Company in defending itself or enforcing its rights relative to such matters.
21. Gomer declares that the terms of this Agreement/Release have been
completely read, are fully understood, and are voluntarily accepted after
complete consideration of all facts and legal claims.
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22. Gomer understands that by signing this Agreement/Release and accepting
the consideration set forth herein, he is receiving benefits to which he is
otherwise not entitled. Gomer understands that he is receiving and the Company
is providing this consideration solely as a result of and the Company's reliance
on Gomer entering into this Agreement/Release and Gomer complying with each and
every provisions of this Agreement/Release including but not limited to those
relating to the non solicitation of personnel, customers or prospective
customers, engaging in any activities in competition with the Company, the non
disclosure of trade secrets and confidential information, and the return of all
property belonging to the Company.
23. This Agreement/Release is intended to supersede the agreement between
Gomer and the Company, dated June 11, 1999 (the "Agreement"). From this date
forward, the Agreement is deemed null and void and of no further force or
effect.
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I declare that the terms of the Agreement/Release have been completely
read, are fully understood, and are voluntarily accepted after complete
consideration of all facts and legal claims.
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Xx. Xxxxx X. Xxxxx Witness
Date
--------------------------------
THE NETWORK CONNECTION, INC.
By:
------------------------------------------
Name:Xxxxxx Xxxxxxx
Title: President and Chief Operating Officer
Date
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