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Exhibit 10.1
SEPARATION AGREEMENT AND RELEASE
This Separation Agreement and Release (this "Agreement") is made as of the
12th day of July, 2000 by and between Network Plus Corp., a Delaware corporation
with its principal offices at 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
(the "Company"), and Xxxxxx X. Alex, residing at 000 Xxxxxxxxx Xxxx, Xxxxxxxx,
Xxxxxxxxxxxxx 00000 (the "Employee").
WHEREAS, as of January 15, 1999 the parties entered into an employment
agreement (the "Employment Agreement") setting forth the terms and conditions of
the Employee's employment with the Company;
WHEREAS, the parties wish to resolve amicably the Employee's separation
from the Company and terminate certain provisions of the Employment Agreement;
NOW, THEREFORE, in consideration of the promises and conditions set forth
herein, the sufficiency of which is hereby acknowledged, the Company and the
Employee agree as follows:
1. RESIGNATION DATE. The Employee hereby resigns from all of the officer
and director positions he now holds with the Company and any of its subsidiaries
effective immediately and as an employee of the Company and any of its
subsidiaries, if applicable, as of October 10, 2000, or such earlier period as
described in Section 2 below (the "Resignation Date").
2. EMPLOYMENT. The Employee agrees that during the period of employment
prior to the Resignation Date the Employee will work up to full time for the
Company on an as needed basis as may be reasonably requested by the Company. The
Employee shall not be required to work on the Company's premises. The Company
agrees that the Employee may devote time during the employment period to seek
employment with another employer so long as it does not conflict with the
business of the Company. In the event that the Employee commences other
employment prior to October 10, 2000 that is inconsistent with his ability to
work full time for the Company on an as needed basis as may be reasonably
requested by the Company or in the event of his death or "disability" (as
defined in the Employment Agreement), his employment will terminate and the
Resignation Date will be deemed to be the date which is the earlier of his last
day of employment with the Company, death or disability, as applicable. The
Employee (or his estate) will continue to receive his salary from the
Resignation Date through December 31, 2000 which salary continuation will be
considered severance pay. Other than as set forth in the preceding sentence the
Employee is not entitled to receive any severance or bonus pay upon his
resignation from the Company or otherwise. The Employee acknowledges that he has
received all of the paid vacation benefits to which he is entitled.
3. TREATMENT OF OPTIONS. The Company acknowledges that the Option
Agreements granted to the Employee dated February 1, 1999 (as restated on July
6, 1999) and on December 27, 1999 are and shall remain in full force and effect
in accordance with their respective terms and subject to the limitations set
forth therein. As a result of the Employee's resignation arising out of Sections
4.4 and 5.3 of the Employment Agreement, the Company confirms that effective on
the Resignation Date all of the Employee's then unvested options to purchase
shares of the Company's common stock, par value $.01 per share, shall vest in
full and, together with his then outstanding vested options, shall be
exercisable at their respective exercise prices for a period of
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ninety days following the Resignation Date. All of the Employee's unvested and
vested options are set forth on EXHIBIT A hereto.
4. BENEFITS. The Employee shall be entitled to participate in all medical,
dental and vision benefits programs that Company has established and made
available to the Employee until the Resignation Date and thereafter until
December 31, 2001 shall only be entitled to participate in the medical benefits
program.
5. REIMBURSEMENT. The Company and the Employee acknowledge that the
Employee donated $10,000 (the "Donation Amount") to the Xxxxxxxx Foundation (the
"Donation"). The Company will reimburse the Employee the Donation Amount within
fifteen (15) days of the date of this Agreement. The Employee agrees not to list
the Donation Amount as a deduction on his federal, state or local income tax
returns for the tax year in which the Donation was made or any other period.
6. RELEASE.
(a) The Employee hereby fully, forever, irrevocably and unconditionally
releases, remises and discharges the Company, its officers, directors,
stockholders, corporate affiliates, agents and employees from any and all
claims, charges, complaints, demands, actions, causes of action, suits, rights,
debts, sums of money, costs, accounts, reckonings, covenants, contracts,
agreements, promises, doings, omissions, damages, executions, obligations,
liabilities and expenses (including attorneys' fees and costs), of every kind
and nature which he ever had or now has against the Company, its officers,
directors, stockholders, corporate affiliates, agents and employees, including,
but not limited to, all claims arising out of his employment and separation from
the Company, including all employment discrimination claims under Title VII of
the Civil Rights Act of 1964, 42 U.S.C. ss.2000e ET SEQ., the Americans With
Disabilities Act, 42 U.S.C., ss.12101 et seq., the Age Discrimination in
Employment Act, 29 U.S.C. ss.621 et seq., the Massachusetts Fair Employment
Practices Act, M.G.L. c.151B, ss.1 ET SEQ., all claims arising out of the
Massachusetts Civil Rights Act, M.G.L. c.12 ss.ss.11H and 11I, the Massachusetts
Equal Rights Act, c.93,ss.102 and M.G.L. c.214, ss.1C, all damages arising out
of all employment discrimination claims, wrongful discharge claims or other
common law claims and damages.
(b) The Company hereby fully, forever, irrevocably and unconditionally
releases, remises and discharges the Employee from any and all claims, charges,
complaints, demands, actions, causes of action, suits, rights, debts, sums of
money, costs, accounts, reckonings, covenants, contracts, agreements, promises,
doings, omissions, damages, executions, obligations, liabilities, and expenses
(including attorneys' fees and costs), of every kind and nature which it ever
had or now has against the Employee, including, but not limited to, all claims
arising out of his employment and separation from the Company; PROVIDED,
HOWEVER, that the foregoing release by the Company shall not apply to any and
all claims related to acts of fraud or actions which would be considered a
felony under applicable law.
7. NO REINSTATEMENT. The Employee understands and agrees that he shall not
be entitled to any employment with the Company at any time following the
Resignation Date, and that he will not apply for employment with the Company
after the Resignation Date.
8. RETURN OF COMPANY PROPERTY. The Employee agrees to return all Company
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property and equipment in his possession or control, including, but not limited
to, all Company files and documents. The Employee further agrees to leave intact
all electronic Company documents including those which he developed or helped
develop during his employment.
9. NATURE OF AGREEMENT. The Company and the Employee understand and agree
that this Agreement is a separation agreement and does not constitute an
admission of liability or wrongdoing on the part of the Company or the Employee.
10. AMENDMENT. This Agreement shall be binding upon the parties and may not
be abandoned, supplemented, changed or modified in any manner, orally or
otherwise, except by an instrument in writing of concurrent or subsequent date
signed by a duly authorized representative of the parties hereto. This Agreement
is binding upon and shall inure to the benefit of the parties and their
respective agents, assigns, heirs, executors, successors and administrators.
11. VALIDITY. Should any provision of this Agreement be declared or be
determined by any court of competent jurisdiction to be illegal or invalid, the
validity of the remaining parts, terms, or provisions shall not be affected
thereby and said illegal and invalid part, term or provision shall be deemed not
to be a part of this Agreement.
12. CONFIDENTIALITY. The Employee understands and agrees that the contents
of the negotiations and discussions resulting in this Agreement shall be
maintained as confidential by the Employee, his agents and representatives, and
none of the above shall be disclosed by the Employee except to the extent
required by federal or state law or as otherwise agreed to in writing by the
Company. The Company and the Employee agree that this Agreement may be filed
with the Securities and Exchange Commission and that its contents will be made
publicly available.
13. NON-DISPARAGEMENT. The Employee understands and agrees that he shall
not make any false, disparaging or derogatory statements in public or private
regarding the Company or any of its directors, officers, employees, agents, or
representatives or the Company's business affairs and financial condition. The
Company understands and agrees that neither it nor any of its directors,
officers, employees, agents, or representatives shall make, or cause to be made,
any false, disparaging or derogatory statements in public or private regarding
the Employee.
14. TERMINATION OF EMPLOYMENT AGREEMENT. The Employment Agreement is hereby
terminated; provided, however, that Sections 5.4 and 7 of the Employment
Agreement and the provisions of Sections 3.6 and 5.2 of the Employment Agreement
that state that the Employee's Options shall vest in full upon a Change in
Control Event (as defined in the Company's 1998 Stock Incentive Plan), or upon
the death or Disability of the Employee prior to the Resignation Date, shall
survive the termination of the Employment Agreement in accordance with their
terms. The Company hereby waives any and all rights it may have under Section 6
of the Employment Agreement. As used herein, Options and Plan shall have the
meanings ascribed to them in the Employment Agreement, and Change in Control
Event shall have the meaning ascribed to it in the Plan.
15. ENTIRE AGREEMENT. This Agreement contains and constitutes the entire
understanding and agreement between the parties hereto with respect to the
separation of the Company and Employee and cancels all previous oral and written
negotiations, agreements,
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commitments, and writings in connection therewith, including without limitation
the Employment Agreement, except as described in Section 14 above.
16. APPLICABLE LAW. This Agreement shall be governed by the laws of the
Commonwealth of Massachusetts.
17. ACKNOWLEDGMENTS. The Employee acknowledges that he or she has been
given up to twenty-one (21) days to consider this Agreement and that the Company
advised him or her to consult with any attorney of his or her own choosing prior
to signing this Agreement. The Employee may revoke this Agreement for a period
of seven (7) days after the execution of this Agreement, and the Agreement shall
not be effective or enforceable until the expiration of this seven (7) day
revocation period.
18. VOLUNTARY ASSENT. The Employee affirms that no other promises or
agreements of any kind have been made to or with him by any person or entity
whatsoever to cause him to sign this Agreement, and that he fully understands
the meaning and intent of this Agreement. The Employee states and represents
that he has had an opportunity to fully discuss and review the terms of this
Agreement with an attorney. The Employee further states and represents that he
has carefully read this Agreement, understands the contents herein, freely and
voluntarily assents to all of the terms and conditions hereof, and signs his
name of his own free act.
19. COUNTERPARTS. This Agreement may be executed in two (2) signature
counterparts, each of which shall constitute an original, but all of which taken
together shall constitute but one and the same instrument.
[Signatures appear on the following page.]
IN WITNESS WHEREOF, all parties have set their hand and seal to this
Agreement as of the date written above.
NETWORK PLUS CORP.
By: /s/ Xxxxxx X. Xxxx, Xx.
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Name: Xxxxxx X. Xxxx, Xx.
Title: CEO
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/s/ Xxxxxx X. Alex
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Xxxxxx X. Xxxx
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ANNEX A
Outstanding Stock Options
as of July 15, 2000
TOTAL VESTED VESTED UNVESTED EXERCISE
SHARES ON 7/15/00 PRICE
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4,533 1,133.3 1,133.3 3,399.8 $ 3.31
240,266 60,066.5 60,066.5 180,199.5 $ 4.41
145,067 36,267 36,267 108,800 $ 6.62
63,466 15,866.5 15,866.5 47,599.5 $11.03
10,000 0 0 10,000 $18.475
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Total 463,332 113,333.3 113,333.3 236,665.4
