SETTLEMENT, RELEASE AND SEPARATION AGREEMENT
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THIS SETTLEMENT, RELEASE AND SEPARATION AGREEMENT (the "Agreement"),
made this 1st day of October, 1999, (the "Date of this Agreement") by and among
VDC COMMUNICATIONS, INC. (the "Company"), a Delaware corporation and XXXXXXX X.
XXXXXXXXXX (the "Employee"), an adult individual presently residing within the
State of Colorado (the Company and the Employee are collectively referred to as
the "Parties").
RECITALS:
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WHEREAS, the Parties wish to come to an agreement regarding certain
employment issues and related matters.
NOW, THEREFORE, for and in consideration of the mutual premises,
covenants, and agreements contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties hereto, intending to be legally bound hereunder, agree as follows:
1. Certain Payments. Within ten (10) calendar days after the complete
execution of this Agreement (the "Execution Date"), the Company shall pay to the
Employee a lump sum of $1,304.86 (which is equivalent to one (1) week of gross
pay totaling $1,666.67, less any state, local and federal withholding,
employment or income taxes payable with respect thereto), twenty-five (25)
percent of which is being paid to induce the Employee to release any claims he
may have under the Age Discrimination in Employment Act (ADEA). The Employee
acknowledges that, but for the execution of this Agreement, the Company is not
otherwise required to pay this amount to the Employee.
2. Certain Benefits. As of the Termination Date, as defined below, the
Employee shall cease to be eligible to participate under any stock option,
bonus, incentive compensation, commission, medical, and other compensation or
benefit plans of the Company and VDC Telecommunications, Inc. ("VDC"). After the
Termination Date, the Employee shall have no rights under any of those plans,
except as follows:
2.1 The Employee shall have the right to COBRA continuation
coverage as to any VDC medical plan in which the Employee participated, which
means that the Employee will be entitled to buy continued health plan coverage
under the normal COBRA health care continuation rules.
2.2 The following Section addresses the treatment of the
Company stock options and VDC Corporation Ltd. ("VDC Bermuda") stock options
granted to the Employee pursuant to an Option to Purchase Common Shares of VDC
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Corporation Ltd. dated April 1, 1998 by and between the Employee and VDC Bermuda
(the "April Option Agreement") representing options to purchase 26,500 shares of
VDC Bermuda (the "April Options") and a VDC Communications Incentive Stock
Option Agreement dated December 8, 1998 by and between the Employee and the
Company (the "December Option Agreement") representing options to purchase
33,500 shares of Company common stock (the "December Options").
(a) On the Execution Date, the Employee shall
deliver to the Company at its offices in Greenwich, Connecticut the original
April Option Agreement. For thirty (30) calendar days following the Termination
Date, the Employee may exercise the 12,500 vested April Options. Thereafter, the
April Option Agreement and the April Options, to the extent not exercised, shall
be canceled, forfeited, and shall otherwise be null, void, and unenforceable.
(b) On the Execution Date, the Employee
shall deliver to the Company at its offices in Greenwich, Connecticut the
original December Option Agreement. Within (20) calendar days after the
Execution Date, the Employee shall receive an amended option agreement (the
"Amended Agreement") with the following terms:
(1) options to purchase 25,000 shares
of Company common stock shall be vested as of twenty (20) calendar days after
the Execution Date (the "Vested Options");
(2) options to purchase 5,000 shares
of Company common stock shall vest one (1) year from the Execution Date if, in
the sole discretion of the Company's Board of Directors, the Employee has
complied with the terms of this Agreement (the "Additional Options");
(3) if in the sole discretion of the
Company's Board of Directors the Employee does not comply with the terms of this
Agreement at any time during the one year following the Execution Date, then the
Additional Options shall be forfeited and shall otherwise be null, void, and
unenforceable;
(4) the Vested Options shall expire three
years from the Termination Date; the Additional Options shall expire three years
from the Termination Date unless earlier terminated in accordance with
provisions above;
(5) the Employee shall not exercise the
Vested Options or the Additional Options until the Company has filed a
Registration Statement on Form S-8 with the Securities and Exchange Commission
for its 1998 Stock Incentive Plan and said Registration Statement is effective;
(6) other than the Vested Options and
the Additional Options, the remaining December Options shall be canceled and
shall otherwise be null, void, and unenforceable as of the Termination Date;
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(7) the Additional Options, unless
forfeited, and the Vested Options shall be included in any Company stock option
repricing covering more than 50% of the Company's outstanding stock options that
occurs within six (6) months from the Date of this Agreement; and
(8) other standard provisions.
The Employee acknowledges that, but for the execution of this Agreement, the
Employee would not be entitled to the Amended Agreement or the stock options
represented thereby.
3. No Reimbursement of Business Expenses. The Employee has no
out-of-pocket business expenses that have not been reimbursed.
4. Resignation and Termination of Services.
4.1 Employee's employment with the Company and its affiliates
(including VDC) shall end forever on October 1, 1999 (the "Termination Date").
4.2 Employee hereby voluntarily resigns from and surrenders
any and all positions he currently holds, or has held, with the VDC Entities (as
defined below). In that regard, the Employee shall immediately execute such
letters of resignation as are provided to him by the VDC Entities. For purposes
of this Agreement, "VDC Entities" shall mean any one or more of the following:
the Company, VDC, Masatepe Communications, U.S.A., L.L.C., Sky King
Communications, Inc., Voice & Data Communications (Hong Kong) Limited,
XxxxxXxxxxxxXxxxxxx.xxx, Inc., Voice & Data Communications (Latin America),
Inc., and all of the foregoing's successors, predecessors and assigns.
4.3 The Employment Agreement by and between VDC Bermuda and
the Employee dated April 1, 1998, as amended, is hereby terminated.
5. Surrender of Rights to Securities. Other than as provided for in
this Agreement, Employee for himself and his heirs, assigns, executors and
administrators hereby surrenders and forfeits any and all rights to or interests
in the stock, options, warrants, notes, debentures, any other security of any
form or type of, and any type of payment from, the VDC Entities.
6. Confidentiality and Nonsolicitation.
6.1 Employee shall not disclose Confidential Information of or
about the VDC Entities to any other person, entity, corporation, trust,
association or partnership. For the purposes of this Agreement, the term
"Confidential Information" shall include, without limitation, information
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obtained while Employee was employed by the VDC Entities as an officer or in any
other capacity, relating to the VDC Entities' financial condition, systems,
know-how, designs, formulas, processes, devices, intellectual property (pending
or otherwise), inventions, research and development, projects, technologies,
communications with third parties such as governmental agencies, customers,
suppliers, or vendors, methods of doing business, agreements with customers,
suppliers, or vendors or other aspects of the VDC Entities' business which
information is generally not available outside of the VDC Entities.
6.2 Employee shall not solicit for employment, directly or
indirectly, any person who is, or within one (1) year prior to the Execution
Date was, an officer, director, manager, employee, or consultant of the VDC
Entities.
7. Taxes. The Employee shall be solely responsible for paying any taxes
on amounts he receives pursuant to this Agreement. The Employee agrees that the
Company is to withhold all taxes it determines it is legally required to
withhold. The Employee shall indemnify the Company for all expenses, penalties,
or interest charges it incurs as a result of not paying payroll taxes on, or
withholding taxes from, amounts paid under this Agreement. The Employee shall
not make any claim against the Company or any other person or entity based on
how the Company reports amounts paid under this Agreement to tax authorities or
if an adverse determination is made as to the tax treatment of any amounts
payable under this Agreement. In addition, the Employee understands and agrees
that the Company has no duty to try to prevent such an adverse determination.
8. Release by Employee.
8.1 Except for the Company's obligations set forth in this
Agreement and the limitation in Section 8.7, the Employee and his assigns,
heirs, executors, administrators, and representatives (collectively the
"Releasors") for and in consideration of the undertakings set forth in this
Agreement and intending to be legally bound, do hereby REMISE, RELEASE AND
FOREVER DISCHARGE the Company, VDC, and their subsidiaries, affiliates,
component entities, predecessors, successors and assigns, individually and
collectively, and all of the foregoing's past and present members, managers,
principals, partners, trustees, officers, directors, employees, agents,
representatives, attorneys, shareholders, and their respective spouses,
successors, heirs, estates, executors, administrators, representatives and
agents (collectively the "VDC Released Parties"), of and from any and all manner
of actions and causes of actions, suits, debts, claims and demands whatsoever in
law, in equity or otherwise, which the Releasors ever had, now have or hereafter
may have by reason of any matter, cause or thing whatsoever from the beginning
of the world to the Date of this Agreement.
8.2 The Employee explicitly understands, acknowledges and
agrees that by virtue of executing this Agreement he is releasing claims that
might arise under many different laws (including statutes, regulations, other
administrative guidance, and common law doctrines) such as the following:
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(a) Anti-discrimination statutes, such as the
Age Discrimination in Employment Act and Executive Order 11,141, which prohibit
age discrimination in employment, Title VII of the Civil Rights Act of 1964,
Section 1981 of the Civil Rights Act of 1966, and Executive Order 11,246, which
prohibit discrimination based on race, color, national origin, religion, or sex;
the Equal Pay Act, which prohibits paying men and women unequal pay for equal
work; the Americans With Disabilities Act and Sections 503 and 504 of the
Rehabilitation Act of 1973, which prohibit discrimination based on disability;
and any other federal, state, or local laws prohibiting employment
discrimination.
(b) Federal employment statues, such as the WARN Act,
which requires that advance notice be given of certain work force reductions;
the Employee Retirement Income Security Act of 1974, which, among other things,
protects employee benefits; the Fair Labor Standards Act of 1938, which
regulates wage and hour matters; the Family and Medical Leave Act of 1993, which
requires employers to provide leaves of absence under certain circumstances; and
any other federal laws relating to employment, such as veterans' reemployment
rights laws; and
(c) Other laws, such as any federal, state, or local
laws providing workers' compensation benefits, restricting an employer's right
to terminate employees, or otherwise regulating employment; and federal, state,
or local law enforcing express or implied employment contracts or requiring an
employer to deal with employees fairly or in good faith; any other federal,
state, or local laws providing recourse for alleged wrongful discharge, tort,
physical or personal injury, emotional distress, fraud, negligent
misrepresentation, defamation, and similar or related claims.
8.3 The Employee explicitly understands, acknowledges and
agrees that examples of claims he is releasing include, but are not limited to:
(i) claims that in any way relate to his employment with the Company or VDC, or
the termination of that employment, such as claims for compensation, bonuses,
commissions, lost wages, or unused accrued vacation or sick pay; (ii) claims
that in any way relate to the design or administration of any employee benefit
program; (iii) claims that he has irrevocable or vested rights to severance or
similar benefits or to post-employment health or group insurance benefits; or
(iv) any claims to attorneys' fees or other indemnities.
8.4 The Employee explicitly understands, acknowledges and
agrees that he is releasing claims that he may not know about. The Employee
explicitly understands, acknowledges and agrees that this is his knowing and
voluntary intent, even though he recognizes that someday he might learn that
some or all of the facts he currently believes to be true are untrue and even
though he might then regret having signed this Agreement. Nevertheless, the
Employee explicitly understands, acknowledges and agrees that he is assuming
that risk and further agrees that this Agreement shall remain effective in all
respects in any such case. The Employee expressly waives all rights he might
have under any law that is intended to protect the Employee from waiving unknown
claims. The Employee understands the significance of doing so.
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8.5 Employee further agrees and covenants that neither he, nor
any person, organization or other entity on his behalf, will file, charge,
claim, xxx or cause or permit to be filed, charged or claimed any action for
legal or equitable relief (including damages, injunctive, declaratory, monetary
or other relief) involving any matter within the scope of the release set forth
in Section 8. Employee agrees that he will not provide any assistance or
advisory services efforts (unless required by law or compelled by legal process)
to any third parties in connection with any disputes, claims or legal
proceedings between such third parties and the VDC Entities.
8.6. This Agreement does not prevent the Employee from filing
a charge of discrimination with the Equal Employment Opportunity Commission,
although by signing this Agreement the Employee waives his right to recover any
damages or other relief in any claim or suit brought by or through the Equal
Employment Opportunity Commission or any other state or local agency on his
behalf under any federal or state discrimination law, except where prohibited by
law. Employee agrees to release and discharge the VDC Released Parties not only
from any and all claims which he could make on his own behalf but also
specifically waives any right to become, and promises not to become, a member of
any class in any proceeding or case in which a claim or claims against the VDC
Released Parties may arise, in whole or in part, from any event which occurred
as of the Date of this Agreement.
8.7 By executing this Agreement, the Employee is not waiving
his right to: (a) indemnification on the terms set forth in the Company's
Certificate of Incorporation, as amended; or (b) coverage on the terms set forth
in the Company's Directors and Officers Insurance Policy.
9. Release by Company.
9.1 Except for Employee's obligations set forth in this
Agreement and the limitation in Section 9.3, the Company and its subsidiaries
and affiliates (the "VDC Releasors"), for and in consideration of the
undertakings set forth in this Agreement, and intending to be legally bound, do
hereby REMISE, RELEASE AND FOREVER DISCHARGE the Employee and his heirs,
executors and administrators, of and from any and all manner of actions and
causes of actions, suits, debts, claims and demands whatsoever in law, in equity
or otherwise, which the VDC Releasors ever had, now have, or hereafter may have,
or which their successors or assigns hereafter may have by reason of any matter,
cause or thing whatsoever from the beginning of the world to the Date of this
Agreement.
9.2 Except as set forth in Section 9.3 and subject to Employee
fulfilling his obligations as set forth in this Agreement, the VDC Releasors
also agree that they will not file any claim for legal or equitable relief
against Employee for any matter within the scope of the release set forth in
Section 9.1. The Company agrees that it will provide no assistance or advisory
services (unless required by law or compelled by legal process), to any third
parties in connection with any disputes between such third parties and Employee.
Nothing contained herein shall restrict the Company's or its affiliate's ability
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to cooperate in any manner they deem appropriate with any law enforcement agency
inquiry, investigation or prosecution.
9.3 The VDC Releasors, and each one of them, reserve their
right to assert claims for contribution or indemnification in the event of an
action asserted by a third party against the VDC Releasors, or any one of them.
10. Certain Additional Covenants.
10.1 Employee agrees that he shall not make or publish, or
assist anyone else to make or publish, any negative, critical, disparaging,
slanderous, or libelous statements about the VDC Entities or any of their
respective officers, directors, agents, employees, or representatives, and
(unless and then only to the extent required by law), shall not disclose the
terms and provisions of the Agreement to any third party without the Company's
written consent.
10.2 The Company agrees that neither it nor its officers,
directors, agents, employees, or representatives shall make or publish any
negative, critical, disparaging, slanderous, or libelous statements about
Employee.
10.3 At any time and from time to time, each Party agrees,
without further consideration, to take such actions and to execute and deliver
such documents as are necessary or reasonable to effectuate the terms,
conditions, and purposes of this Agreement.
10.4 The Employee shall not incur any expenses, obligations,
or liabilities on behalf of the VDC Entities.
10.5 The Employee shall, as requested by the Company or VDC,
fully cooperate in effecting a smooth transition of the Employee's
responsibilities to others. To accomplish this, the Employee shall be available
to the Company or VDC for a maximum of six (6) hours during the six (6) months
following the Execution Date. For example, when requested the Employee will
promptly and fully respond to inquiries from the Company, VDC and their
representatives. To the extent the Employee spends more than six (6) hours
during the six (6) months following the Execution Date responding to requests
from the Company or VDC, the Company shall pay the Employee a per hour rate of
$45 per hour; provided, however, that the Employee shall inform the Company and
VDC in writing prior to working more than six (6) hours during the six (6)
months following the Execution Date and shall not work in excess of such time
unless so instructed by the Company and VDC in writing. To the extent the
Employee incurs out-of-pocket expenses (such as postage costs or telephone
charges) in assisting the Company or VDC at their request, the Company will mail
the Employee a reimbursement check for those expenses within fifteen (15)
calendar days after it receives the Employee's request for payment with
satisfactory written substantiation of the claimed expenses.
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10.6 In addition to the provisions of Section 10.5, if
requested by either the Company or VDC, the Employee shall serve as a witness
for the Company or VDC and otherwise assist and cooperate with the Company and
VDC, in any dispute involving the Company or VDC and any one or more of StarCom
Telecom International, LLC, StarCom Telecom, Inc., Xxxxxx Xxxxx, American
Access, NACT Telecommunications, Inc., World Access, Zions Credit Corporation or
the foregoing's subsidiaries, affiliates, divisions, predecessors, successors or
assigns. The Company shall reimburse the Employee for any out-of-pocket
expenses, preapproved by the Company in writing, incurred by the Employee in
complying with the terms of this Section 10.6. Moreover, the Company shall pay
the Employee a per diem rate of $360 for each day during which the Employee, at
the request of the Company or VDC, spends at least five (5) hours preparing to
serve as a witness (including travel associated therewith) or serving as a
witness in accordance with the provisions of this Section 10.6.
10.7 The Employee shall comply with all federal, state, and
local securities laws as they relate to the VDC Entities following the Date of
this Agreement. By way of illustration, but not limitation, the Employee shall
comply with any applicable trading and reporting requirements.
10.8 The Employee shall not interfere with the Company's or
VDC's telecommunications or computer networks or otherwise seek to obtain
unauthorized benefits or perquisites therefrom.
11. Representations and Warranties of Employee.
11.1 The Employee knows of no action or failure to act on the
part of the Employee which could form the basis for a claim or complaint against
the VDC Entities, by any third party, except as disclosed in Schedule 11.1.
11.2 The Employee has not during the term of his employment
disclosed to third parties, without the knowledge or permission of the Company,
Confidential Information about the VDC Entities.
11.3 The Employee has not filed or caused to be filed any
lawsuit, complaint, or charge with respect to any claim within the scope of this
Agreement.
11.4 The Employee has not suffered any discrimination on
account of his age, sex, race, national origin, marital status, sexual
orientation, or any other protected status, and none of these ever has been an
adverse factor used against the Employee by any VDC Released Party.
11.5 The Employee has returned to the Company all discs,
contracts, notes, files, memoranda, documents, records, commercial paper,
negotiable instruments, bank records, licenses, employee files, (including
copies of the foregoing), of or regarding the VDC Entities, Internet or voice
mail passwords or other passwords, credit cards, checks, instruments, keys,
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equipment, telephones, computer hardware, computer software, computer apparatus,
and any other property of any one of the VDC Entities in his possession or that
he removed or had removed from the offices of any one of the VDC Entities.
12. Representations and Warranties of the Company.
12.1 The Company has taken, or will in a timely manner take,
all corporate action necessary to authorize and effectuate the terms and
conditions of this Agreement.
12.2 To the extent permitted by law, the Company represents
that it will use its reasonable best efforts to remove the Employee from all
state corporate and federal FCC filings within thirty (30) days of the Execution
Date.
12.3 The Company represents that within one (1) day after the
Execution Date, VDC will cancel the Employee's voice mailbox and greeting at
VDC's offices in Aurora, Colorado.
13. Representations and Warranties of Both Parties. Each Party
represents and warrants that:
13.1 It has (i) carefully read and understands this Agreement,
(ii) had the assistance of legal counsel of its choosing (and such other
professionals and advisors as it has deemed necessary) in the review and
execution hereof, (iii) had the meaning and effect of the various terms and
provision hereof have been fully explained to it by such counsel, (iv) conducted
such investigation, review and analysis as it has deemed necessary to understand
the provisions of this Agreement and the transactions contemplated hereby, and
(v) it has executed this Agreement of its own free will.
13.2 In deciding to enter into this Agreement, it has not
relied on any statements, representations, promises or undertaking or
inducements except as set forth in the Agreement.
13.3 It has entered into this Agreement voluntarily and of its
own volition without any pressure or influence whatsoever by any individual or
entity.
13.4 It has not sold, assigned, transferred, conveyed, or
otherwise disposed of any of the claims settled by this Agreement.
14. Certain Additional Agreements.
14.1 The Employee agrees that the Company would be irreparably
harmed by any actual or threatened violation of Section 10.1 that involves
making negative remarks and the disclosure of the existence, terms, or amount
payable under this Agreement, or Section 6 that involves disclosure or use of
confidential information or trade secrets or solicitation of employees, and that
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the Company will be entitled to an injunction prohibiting the Employee from
committing any such violation.
14.2 Should the Employee attempt to challenge the
enforceability of this Agreement, the Employee agrees that he shall first
deliver a cashier's check to the Company for all amounts he received pursuant to
this Agreement and shall invite the Company to cancel this Agreement. If the
Company accepts, in writing, the Employee's offer to cancel this Agreement, then
this Agreement shall be canceled. If it rejects the Employee's offer, the
Company shall notify the Employee and retain the funds represented by the
cashier's check pending a determination of the enforceability of this Agreement.
If the Agreement is determined to be enforceable, the Company will return the
funds represented by the cashier's check to the Employee less any amounts the
Employee owes the Company. If this Agreement is not enforceable, the Company or
its designee shall keep the funds represented by the cashier's check.
15. Miscellaneous
15.1 All controversies or claims arising out of or relating to
this Agreement or the documents referenced herein shall be determined by binding
arbitration applying the laws of the State of Connecticut. Any such arbitration
shall be conducted in Denver, Colorado before the American Arbitration
Association (the "AAA"). Each party to the arbitration shall bear the cost of
preparing and presenting its own case. The cost of the arbitration, including
the fees and expenses of the arbitrator(s), shall be shared equally by the
parties thereto unless the award otherwise provides. Nothing in this section
will prevent any party to such arbitration from resorting to judicial
proceedings if interim injunctive relief under the laws of the State of
Connecticut from a court is necessary to prevent serious and irreparable injury
to one of the parties and the state courts in Denver, Colorado and the United
States District Court in the District of Colorado, in Denver, Colorado shall
have exclusive subject matter and in personam jurisdiction over the parties for
purposes of obtaining interim injunctive relief.
15.2 All notices, requests, instructions, consents and other
communications to be given pursuant to this Agreement shall be in writing and
shall be deemed received (i) on the same day if delivered in person, by same-day
courier or by telegraph, telex or facsimile transmission (provided that
telegraph, telex or facsimile notice shall be deemed received on the next
business day if received after 5:00 p.m. local time), (ii) on the next day if
delivered by overnight mail or courier, or (iii) on the date indicated on the
return receipt, or if there is no such receipt, on the third calendar day
(excluding Sundays) if delivered by certified or registered mail, postage
prepaid.
15.3 This Agreement shall be construed in accordance with the
laws of the State of Connecticut without regard to principles of conflict of
laws.
15.4 This Agreement contains the entire agreement of the
Parties with respect to the subject matter hereof and supersedes all existing
agreements among them concerning such subject matter. The Agreement may not be
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changed orally but only by an agreement in writing signed by the Party against
whom enforcement of any waiver, change, modification, extension or discharge is
sought.
15.5 No rule of construction requiring interpretation against
the drafting party shall apply to the interpretation of this Agreement.
15.6 Employee acknowledges that he has been informed that he
has the right to consider this Agreement for a period of at least forty-five
(45) calendar days prior to entering this Agreement. He also understands that he
has the right to revoke this Agreement for a period of seven (7) calendar days
following his execution of the Agreement by giving written notice to the Chief
Executive Officer of the Company at its principal offices. Prior to the Company
being obligated to make the cash payment provided for in Section 1 or the option
amendment provided for in Section 2(b), the Employee shall execute and deliver
to the Company the Certification attached hereto as Exhibit "A" and incorporated
herein by reference. The Parties understand and agree that any changes to this
Agreement, whether material or immaterial, did not restart the running of the
forty-five (45) calendar day review period.
15.7 Whenever the context of this Agreement may require, any
pronoun will include the corresponding masculine, feminine and neuter form, and
the singular form of nouns and pronouns will include the plural.
15.8 This Agreement may be executed in multiple counterparts
and by facsimile signature, each of which shall constitute an original, but all
of which counterparts taken together shall constitute one and the same
instrument.
15.9 The captions or headings of the paragraphs or other
subdivisions hereof are inserted only as a matter of convenience or for other
reference and shall have no affect on the meaning of the provisions hereof.
15.10 The invalidity or unenforceability of any term of this
Agreement shall not affect the validity or enforceability of this Agreement or
any of its other terms; in the event that any court of equity or arbitrator
determines that the time period and/or scope of any paragraph or section of this
Agreement is unenforceably long or broad, as the case may be, then, and in
either such event, neither the enforceability nor the validity of said paragraph
or section as a whole shall be affected. Rather, the scope of the section shall
be revised by the court or arbitrator as little as possible to make the section
enforceable. If the court or arbitrator will not revise said paragraph or
section, then this Agreement shall be construed as though the invalid or
unenforceable term(s) were not included herein, unless the effect would be to
vitiate the Parties' fundamental purposes of entering into this Agreement.
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15.11 In connection with the execution of this Agreement, the
Company has prepared the letter of recommendation attached hereto as Exhibit "B"
and incorporated herein by reference. The Employee may use this letter in his
discretion. In connection with the execution of this Agreement, the Company has
prepared the letter attached hereto as Exhibit "C" and incorporated herein by
reference. The Company may use this letter in its discretion.
15.12 This Agreement shall be binding on and inure to the
benefit of the Parties hereto and their respective heirs, representatives,
successors and assigns.
15.13 This Agreement shall not be construed as an admission of
guilt or wrongdoing by either Party.
15.14 Any waiver by any Party of a breach of any provision of
this Agreement shall not operate or be construed to be a waiver of any other
breach of that provision or of any other provision. The failure of any Party to
insist upon strict adherence to any term of this Agreement on one or more
occasions shall not be considered a waiver or deprive that Party of the right to
insist upon strict adherence in the future. Any waiver must be in writing.
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TAKE THIS AGREEMENT HOME, READ IT, AND CAREFULLY CONSIDER ALL OF ITS PROVISIONS
BEFORE SIGNING IT: IT INCLUDES A RELEASE OF KNOWN AND UNKNOWN CLAIMS. IF YOU
WISH, YOU SHOULD TAKE ADVANTAGE OF THE FULL CONSIDERATION PERIOD AFFORDED BY
SECTION 15.6 AND YOU SHOULD CONSULT YOUR ATTORNEY.
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IN WITNESS WHEREOF, the Parties have executed this Agreement the day
and year first above written.
VDC COMMUNICATIONS, INC.
By:/s/ Xxxxxxxxx X. Xxxxx
----------------------
Xxxxxxxxx X. Xxxxx
Chairman and CEO
/s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------
Xxxxxxx X. Xxxxxxxxxx
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SCHEDULE 11.1
NONE.
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EXHIBIT "A"
CERTIFICATION
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I, Xxxxxxx X. Xxxxxxxxxx, hereby certify that I have not revoked or
attempted to revoke the Settlement, Release and Separation Agreement by and
between me and VDC Communications, Inc., dated October 1, 1999 (the
"Agreement"), as of October 9, 1999. VDC Communications, Inc. may rely upon this
Certification in forwarding to me certain payments provided for in the
Agreement.
---------------------
Xxxxxxx X. Xxxxxxxxxx
---------------------
Dated
State of
---------------------
County of
--------------------
Before me, the undersigned, personally appeared Xxxxxxx X. Xxxxxxxxxx,
known to me (or satisfactorily proven) to be the person who executed the
foregoing Certification and acknowledged that the Certification was true and
accurate. In witness whereof, I hereunto set my hand.
---------------------
(Notary Public)
Dated:
---------------
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VDC COMMUNICATIONS, INC.
00 XXXXX XXXX XXXX
XXXXXXXXX, XXXXXXXXXXX 00000
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TEL: 000-000-0000 XXXXXXXXX X. XXXXX
FAX: 000-000-0000 CHAIRMAN & CEO
XXXX://xxx.xxxxxxx.xxx
EXHIBIT "B"
October 1, 1999
To Whom It May Concern:
This letter will confirm that Xxxxxxx X. Xxxxxxxxxx was an employee of
VDC Communications, Inc. ("VDC") from April 1, 1998 to October 1, 1999. During
his time as an employee of VDC, Xx. Xxxxxxxxxx served as: (1) an executive
officer of VDC, specifically Vice President; (2) Executive Vice President of VDC
Telecommunications, Inc., a wholly-owned subsidiary of VDC; and (3) Chairman of
the Board, Chief Executive Officer, Secretary and Treasurer of
XxxxxXxxxxxxXxxxxxx.xxx, Inc., a wholly-owned subsidiary of VDC
Telecommunications, Inc. During his time at VDC, Xx. Xxxxxxxxxx'x salary was
$80,000 per annum. During Xx. Xxxxxxxxxx'x employment at VDC, he demonstrated a
commitment to VDC's success, a take-charge attitude and was professionally
cooperative.
Very truly yours,
Xxxxxxxxx X. Xxxxx
Chairman & CEO
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VDC COMMUNICATIONS, INC.
00 XXXXX XXXX XXXX
XXXXXXXXX, XXXXXXXXXXX 00000
--------------------------------------------------------------------------------
TEL: 000-000-0000 XXXXXXXXX X. XXXXX
FAX: 000-000-0000 CHAIRMAN & CEO
XXXX://xxx.xxxxxxx.xxx
EXHIBIT "C"
To [Addressee]
RE: XXXXXXX X. XXXXXXXXXX
Dear Addressee:
This letter shall serve as notice that Xxxxxxx X. Xxxxxxxxxx has
resigned from all positions he held with VDC Communications, Inc., VDC
Telecommunications, Inc., and XxxxxXxxxxxxXxxxxxx.xxx, Inc. in order to pursue
other interests. As such, Xx. Xxxxxxxxxx no longer has authority to act on
behalf of any such entities. Please direct inquiries regarding this matter to me
at the telephone number and address above.
Very truly yours,
Xxxxxxxxx X. Xxxxx
Chairman & CEO
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State of Connecticut
County of Fairfield
Before me, the undersigned, personally appeared Xxxxxxxxx X. Xxxxx, known to me
(or satisfactorily proven) to be the person who executed the within document on
behalf of the entity whose name is subscribed to the within instrument and
acknowledged that he executed the same for the purposes therein contained. In
witness whereof, I hereunto set my hand.
/s/ Xxxxxx Xxxxx X'Xxxxxx
-------------------------
(Notary Public)
Dated: 10/4/99
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State of Colorado
County of Arapahoe
Before me, the undersigned, personally appeared Xxxxxxx X. Xxxxxxxxxx, known to
me (or satisfactorily proven) to be the person who executed the within
instrument and acknowledged that he executed the same for the purposes therein
contained. In witness whereof, I hereunto set my hand.
/s/ Xxxxx X. Xxxxxxx
--------------------
(Notary Public)
Dated: 10/1/99
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