SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release ("Agreement") is made as of the
3rd day of January, 2003, by and between Xxxxx Xxxxxx ("Xxxxxx") and Digital
Lightwave, Inc. ("Digital") (collectively, the "Parties").
1. This Agreement is based on the premises and mutual promises
contained herein. This Agreement is the entire Agreement of the parties
pertaining to its subject matter and supersedes any prior or contemporaneous
negotiations or agreements between the parties, whether written or oral. Each of
the Parties acknowledges representation by counsel throughout all negotiations
which preceded the execution of this Agreement. Each of the Parties acknowledges
that it has not relied on any promise, representation or warranty, expressed or
implied, not contained in this Agreement
2. On or about February 22, 2001, the Parties entered into a written
employment agreement. On July 27, 2001, the parties entered into a written
addendum to the February 22, 2001 Employment Agreement. On October 2, 2001, the
parties entered a second written addendum to the February 22, 2001 Employment
Agreement. Collectively, these documents shall be referred to hereinafter as
"the Employment Agreement."
3. On or about January 17, 2003, the Parties mutually agreed to and did
terminate the Employment Agreement.
4. The Parties mutually desire to reach a full and final settlement and
resolution of all past, present and future claims, controversies and disputes
that Xxxxxx has or may have against Digital related in any way to his employment
with Digital, including but not limited to any claims he may have regarding the
Employment Agreement.
5. This Agreement is entered into in connection with the compromise of
all claims between the parties. Neither this Agreement itself nor any acts taken
in connection with it will constitute an admission by either party or any
liability, nor will it constitute or be construed as an admission of any
violation of law or wrongdoing whatsoever.
6. In consideration of this Agreement, the Parties agree as follows:
Digital agrees to pay Xxxxxx the sum of $20,000 (Twenty Thousand Dollar and No
Cents) (the "Payment") at a rate $3,333.00 (Three Thousand Three Hundred
Thirty-Three Dollars and No Cents) per month until paid in full. This payment
shall be in lieu of any obligation under the Employment Agreement by Digital for
outplacement services.
7. The Parties agree that all tax obligations, if any, which may arise
from the Payment set forth above shall be the sole obligation of Xxxxxx.
8. This Agreement shall be enforced and interpreted in accordance with
the laws of the State of Florida, without regard to rules for choice of law or
conflicts of law.
9. The Parties agree that neither this Agreement, the fact that the
Parties are entering into the settlement reflected herein, nor any of the terms
of this Agreement is or shall be construed as an admission that any claim made
in the Lawsuit is or is not meritorious or that any party has any liability of
any kind to any other party. The Parties agree that they will not directly or
indirectly, expressly, or by implication, assert the Agreement, the settlement
reflected herein, or any of the terms of the Agreement as an admission of merit,
lack of merit, or liability of or by any party.
10. In consideration for the Agreement and as a full and final mutual
settlement, Xxxxxx releases and discharges Digital, its successors and assigns,
its current and former directors, officers, employees, principals, attorneys,
and agents, and their successors and assigns, from any and all claims, charges,
complaints, causes of action, or liabilities of any kind or nature whatsoever,
known or unknown, suspected or unsuspected, as to any events, acts or omissions
related in any manner to Xxxxxx'x employment with Digital, as well as any and
all claims, charges, complaints, causes of action ,or liabilities of any kind or
nature as to any events, acts or omissions known or suspected as of the date
Xxxxxx executes this Agreement.
11. The Parties understand that the releases contained in this
Agreement extend to all claims of every nature and kind whatsoever, known or
unknown, suspected or unsuspected related in any manner to the subject matter of
Xxxxxx'x employment with Digital. Moreover, each party hereby expressly
acknowledges that each party is waiving all rights under Section 1542 of the
California Civil Code Section 1542 or any similar law of another state providing
in words or substance:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR.
12. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which together shall constitute one
and the same instrument.
13. This Agreement shall inure to the benefit of and be binding upon
the heirs, representatives, marital communities, successors and assigns of each
of the Parties to it.
14. If any provision of this Agreement is held to be invalid, void, or
unenforceable, the remaining provisions shall remain in full force and effect.
15. This document embodies the entire terms and conditions of the
Agreement by and among the Parties to this Agreement. This Agreement may not be
altered or amended except by a writing executed by all the Parties to this
Agreement.
16. The Parties state that they have carefully read this Agreement,
that they know and understand the content of this Agreement, including the full
and final release of all claims as
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stated above, and that they have signed this Agreement of their own free act and
after having a full, unrestricted opportunity to consult with their own
attorneys. The Parties approve and accept the terms and provisions of this
Agreement and agree to be bound thereby.
WHEREFORE, the Parties make this Agreement as of the date set forth
above.
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Xxxxx Xxxxxx
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Xxxxx X. Xxxxx
President & CEO,
Digital Lightwave, Inc.
DIGITAL LIGHTWAVE, INC.
EXECUTIVE CONSULTING AGREEMENT
This Executive Consulting Agreement (the "Agreement") is entered into
by and between Digital Lightwave, Inc. (the "Company") and Xxxxx Xxxxxx
("Consultant").
1. CONSULTING RELATIONSHIP. For the duration of this Agreement,
Consultant will provide consulting services (the "Services") to the Company.
Consultant shall use Consultant's best efforts to perform the Services in a
manner satisfactory to the Company.
2. FEES; SUPPORT. As consideration for the Services to be provided by
Consultant and other obligations, the Company shall pay to Consultant a salary
of $31,666.67 per month, paid on a semi-monthly basis.
3. STOCK OPTIONS. All stock options, warrants, rights and other Company
stock-related awards Consultant was previously granted by Company while
Consultant was an employee, to the extent vested as of August 17, 2003, shall
remain exercisable for the lesser of a (1) one year period or the maximum period
permissible under the accounting regulations governing business combinations
following August 16, 2003.
3. EXPENSES. Consultant shall not be authorized to incur on behalf of
the Company any expenses.
4. TERM AND TERMINATION. Consultant shall serve as a consultant to the
Company for a period commencing on January 17, 2003, and terminating on August
17, 2003.
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5. INDEPENDENT CONTRACTOR. Consultant's relationship with the Company
will be that of an independent contractor and not that of an employee.
Consultant will be eligible for life, disability, accident and group medical and
dental benefits (substantially similar to those Consultant received as employee
prior to this consultancy) paid for by Company through January 16, 2004. From
January 16, 2004, through the term of this Agreement, Consultant will not be
eligible for any employee benefits. [THE COMPANY WILL NOT MAKE DEDUCTIONS FROM
PAYMENTS MADE TO CONSULTANT FOR TAXES, ALL OF WHICH WILL BE CONSULTANT'S
RESPONSIBILITY. CONSULTANT AGREES TO INDEMNIFY AND HOLD THE COMPANY HARMLESS
FROM ANY LIABILITY FOR, OR ASSESSMENT OF, ANY SUCH TAXES IMPOSED ON THE COMPANY
BY RELEVANT TAXING AUTHORITIES.] Consultant will have no authority to enter into
contracts that bind the Company or create obligations on the part of the Company
without the prior written authorization of the Company.
6. SUPERVISION OF CONSULTANT'S SERVICES. All services to be performed
by Consultant, including but not limited to the Services, will be as agreed
between Consultant and the Company's President & CEO. Consultant will be
required to report to the President & CEO concerning the Services performed
under this Agreement. The nature and frequency of these reports will be left to
the discretion of the President & CEO.
7. CONFIDENTIALITY AGREEMENT. Consultant shall sign, or has signed, a
Confidential Information and Invention Assignment Agreement prior to or on the
date on which Consultant's consulting relationship with the Company commences.
8. CONFLICTS WITH THIS AGREEMENT. Consultant represents and warrants
that neither Consultant nor any of Consultant's partners, employees or agents is
under any pre-existing obligation in conflict or in any way inconsistent with
the provisions of this Agreement. Consultant warrants that Consultant has the
right to disclose or use all ideas, processes, techniques and other information,
if any, which Consultant has gained from third parties, and which Consultant
discloses to the Company in the course of performance of this Agreement, without
liability to such third parties. Consultant represents and warrants that
Consultant has not granted any rights or licenses to any intellectual property
or technology that would conflict with Consultant's obligations under this
Agreement. Consultant will not knowingly infringe upon any copyright, patent,
trade secret or other property right of any former client, employer or third
party in the performance of the services required by this Agreement.
9. MISCELLANEOUS.
(a) AMENDMENTS AND WAIVERS. Any term of this Agreement may be
amended or waived only with the written consent of the parties.
(b) SOLE AGREEMENT. This Agreement, including the Exhibits
hereto, constitutes the sole agreement of the parties and supersedes all oral
negotiations and prior writings with respect to the subject matter hereof.
(c) Notices. Any notice required or permitted by this Agreement
shall be in writing and shall be deemed sufficient upon receipt, when delivered
personally or by courier, overnight delivery service or confirmed facsimile, 48
hours after being deposited in the regular mail as certified or registered mail
(airmail if sent internationally) with postage prepaid, if such
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notice is addressed to the party to be notified at such party's address or
facsimile number as set forth below, or as subsequently modified by written
notice.
(d) CHOICE OF LAW. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
Florida, without giving effect to the principles of conflict of laws.
(e) SEVERABILITY. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, the parties agree to renegotiate
such provision in good faith. In the event that the parties cannot reach a
mutually agreeable and enforceable replacement for such provision, then (i) such
provision shall be excluded from this Agreement, (ii) the balance of this
Agreement shall be interpreted as if such provision were so excluded and (iii)
the balance of this Agreement shall be enforceable in accordance with its terms.
(f) COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together will
constitute one and the same instrument.
(g) ARBITRATION. Any dispute or claim arising out of or in
connection with any provision of this Agreement, excluding Section 9 and 10
hereof, will be finally settled by binding arbitration in Tampa, Florida in
accordance with the rules of the American Arbitration Association by one
arbitrator appointed in accordance with said rules. The arbitrator shall apply
Florida law, without reference to rules of conflicts of law or rules of
statutory arbitration, to the resolution of any dispute. Judgment on the award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof. Notwithstanding the foregoing, the parties may apply to any court of
competent jurisdiction for preliminary or interim equitable relief, or to compel
arbitration in accordance with this paragraph, without breach of this
arbitration provision. This Section 11(g) shall not apply to the Confidentiality
Agreement.
(h) ADVICE OF COUNSEL. EACH PARTY ACKNOWLEDGES THAT, IN EXECUTING
THIS AGREEMENT, SUCH PARTY HAS HAD THE OPPORTUNITY TO SEEK THE ADVICE OF
INDEPENDENT LEGAL COUNSEL, AND HAS READ AND UNDERSTOOD ALL OF THE TERMS AND
PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT SHALL NOT BE CONSTRUED AGAINST ANY
PARTY BY REASON OF THE DRAFTING OR PREPARATION HEREOF.
The parties have executed this Agreement on the respective dates set
forth below.
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Digital Lightwave, Inc.
By:
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Xxxxx Xxxxx
President & CEO
Address: 00000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Date:
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Xxxxx Xxxxxx (Signature)
Address:
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Date:
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