CONFIDENTIAL GENERAL RELEASE AND COVENANT NOT TO XXX
This CONFIDENTIAL GENERAL RELEASE AND COVENANT NOT TO XXX
(hereinafter "Agreement") by and between ICG Communications,
Inc., a Delaware corporation, together with its parents, subsidiaries and
affiliates, (hereinafter "the Company") and Xxxx X. Field, an individual,
(hereinafter "Employee") whose principal place of residence is 0000 Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000.
WHEREAS, the Company and Employee agree to terminate the employment
relationship between them; and
WHEREAS, Employee agrees to settle and release all actual and
potential claims of Employee against the Company which have arisen or may in
the future arise out of or in connection with the employment of Employee by
the Company, the termination of such employment, or for any cause prior to
the date of this Agreement; and
WHEREAS, Employee has substantial knowledge of the Company's operations,
customers, vendors, suppliers and other proprietary and confidential
information, and the Company desires to protect such confidential information
from disclosure;
NOW, THEREFORE, in consideration of the mutual promises and covenants
and agreements contained herein, and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties
agree as follows:
1. VOLUNTARY RESIGNATION. This document shall act as a tender of
resignation of employment by Employee, including as a director and/or officer,
from the Company, and each of its affiliates, effective November 5, 1996
("Termination Date") and, subject to Section 2.7, Employee shall return all
property owned by the Company by that date.
2. PAYMENT TO EMPLOYEE.
2.1 Upon the full execution of this Agreement and the lapse of
the seven (7) day period described in Section 7 below, the Company will
continue to pay Employee's current monthly salary(less applicable
withholding taxes and obligations) for a period of six (6)months from the
date of this Agreement ("Initial Severance Period"). No other amounts will
be paid to Employee, including, without limitation, any bonus earned or to be
earned. During the Initial Severance Period, Employee shall be available to
the Chief Executive Officer of the Company, on an as-needed basis, to provide
consultation and other services reasonably requested.
2.2 Following the Initial Severance Period, the Chief Executive
Officer of the Company shall make a determination, in his sole discretion,
whether or not to retain Employee's consulting services for an additional
period of six (6) months, subject to the termination provisions outlined in
Section 2.6 below ("Contingent Severance Period"). Compensation, if
any, for consulting services provided by Employee during the Contingent
Severance Period shall be determined in the sole discretion of the Chief
Executive Officer of the Company.
2.3 The Company will permit Employee to continue participation
in the Company's Medical/Dental/Vision benefit plans during (i) the Initial
Severance Period; and, (ii) the earlier to occur of: (a) the end of the
Contingent Severance Period, or (b) the termination of this Section 2.3 (as
outlined in Section 2.6), at which time all such benefits shall be
terminated. At that time, Employee may be eligible to continue appropriate
coverage pursuant to COBRA, subject to COBRA rules and provisions.
2.4 Solely for purposes of vesting under the Company's employee
stock option plans, Employee's termination date will be the last day of the
Initial Severance Period, subject to extension, in the sole discretion of the
Chief Executive Officer of the Company, to the last day of the Contingent
Severance Period, and provided that, Employee's 1995 Stock Option Agreement
dated November 13, 1995 ("Stock Option Agreement") shall be amended such
that the number of shares that would vest on November 13, 1997 shall be
reduced from 18,750 shares to 10,000 shares. This document shall act as an
amendment to the Stock Option Agreement, and no further documentation shall
be necessary to evidence the reduction in number of shares to vest on November
13, 1997.
2.5 On or before the date which is twenty-six (26) months from
the date of this Agreement, the Chief Executive Officer of the Company shall
make a determination of whether or not the Promissory Note dated July 12,1995,
as amended on July 11, 1996, in the principal amount of $200,000 given by
Employee to ICG Holdings, Inc. (f/k/a IntelCom Group (U.S.A.), Inc.) which
is due on demand and which bears interest at the rate of seven percent (7%)
per annum ("Promissory Note"), will be deemed additional severance to
Employee or whether the Company will demand payment. The determination will
be solely at the discretion of the Chief Executive Officer of the Company and
upon advice from the Compensation Committee of the board of directors of the
Company.
2.6 During the Contingent Severance Period, Employee's employment
shall be expressly "AT-WILL." Employee acknowledges that Employee may be
terminated at any time, for any or no reason, and that such determination
will be solely at the discretion of the Chief Executive Officer of the
Company. In the event that Employee is terminated prior to the end of the
Contingent Severance Period, the provisions of Sections 2.2, 2.3 and 2.4
shall terminate immediately, and without further notice, and the Company
shall not be liable for any additional amounts, of any nature or kind, to
Employee.
2.7 Notwithstanding the provisions of Sections 1 and 4.3 to the
contrary, Employee shall be entitled to the use of a Company provided
automobile, a Company provided cellular telephone and a Company provided
computer during the Initial Severance Period. All such items shall be
returned at any time upon the request of the Chief Executive Officer of the
Company.
2.8 The Company will also pay for professional counseling of
Employee, for a period of up to six (6) months from the date of this
Agreement, with a counselor reasonably satisfactory to the Company.
3. OTHER PAYMENTS. The consideration described above in Section 2 is
separate from the payment by the Company to Employee of accrued and unused
vacation pay, if any, and regular salary or wages for work performed through
the Termination Date, less applicable withholding taxes and obligations
("Other Payments"). Employee's receipt of the Other Payments is not
conditioned upon signing this Agreement. Employee shall receive all Other
Payments to which he/she is entitled regardless of whether he signs this
Agreement.
4. CONFIDENTIAL INFORMATION.
4.1 As used in this Agreement, "Confidential Information" means
any and all information not generally ascertainable in usable form from
public or published information or trade sources, disclosed to or acquired by
Employee about the Company's plans, products, process and services. This may
include, but is not limited to, any and all information relating to research,
development, inventions, manufacturing, purchasing, financial data and status
of the Company, operations manuals, policies and procedures, accounting,
engineering, marketing, merchandising, selling, pricing and tariffed or
contractual terms, customer lists and prospect lists or other market
information, with respect to any of the Company's then current business
activities.
4.2 Employee agrees that he shall not disclose any Confidential
Information or component thereof to any person, firm or corporation to any
extent for any reason or purpose, nor use any Confidential Information or
component thereof for any purpose.
4.3 Employee represents and warrants that he has delivered to
the Company all originals and all duplicates and copies of all documents,
records, notebooks, computer files or disks, and similar repositories of, or
containing, Confidential Information, in his possession, whether prepared
by him/her or others.
5. NON-INTERFERENCE.
5.1 Employee agrees that he shall not, for a period of twenty
-four (24) months from the date of this Agreement: (i) directly or indirectly
cause or attempt to cause any employee of the Company or any of its affiliates
to leave the employ of Company or any affiliate; (ii) in any way interfere
with the relationship between the Company and any employee or between an
affiliate and any employee of the affiliate; (iii) interfere or attempt to
interfere with any transaction in which the Company or any of its affiliates
is involved at the date of this Agreement or of which Employee has knowledge;
(iv) interfere or attempt to interfere with any vendor, customer, supplier,
or other person or entity with whom the Company or any of its affiliates is
doing business at the time of this Agreement.
5.2 Employee further represents and warrants that he will
refrain from making any false, disparaging or misleading statements to any
person or entity regarding the Company or any ofits officers, directors or
employees.
6. RELEASE.
6.1 Employee hereby releases and forever discharges the Company,
its affiliates, subsidiaries, parents, successors, assigns and other
affiliated entities, past and present, and each of them, as well as its and
their officers, directors, attorneys, managers, agents and employees ("Company
Releasees") from all claims, known or unknown, which Employee ever had, now
has or may hereafter claim to have had, as of or prior to the date of this
Agreement, with respect to his employment with the Company, the terms and
conditions of his employment or the termination of his employment.
These claims may include, but are not limited to, claims based on (a)
violations of Title VII of the Civil Rights Act of 1964, the Civil Rights Act
of 1991, the Americans with Disabilities Act, the Age Discrimination in
Employment Act, and the Employee Retirement Income Security Act; (b) any and
all claims under Delaware and/or Colorado statutory or decisional law,
including, but not limited to, the Colorado Anti-Discrimination Act pertaining
to employment discrimination or harassment, wrongful discharge or breach of
public; and (c) state, federal and common law relating to breach of
express or implied contract, wrongful termination, employment discrimination
or harassment, emotional distress, privacy rights, fraud and misrepresentation
generally.
6.2 The Company hereby releases and forever discharges Employee,
his heirs, executors and personal representatives ("Employee Releasees") from
all claims, known or unknown, which the Company ever had, now has or may
hereafter claim to have had, as of or prior to the date of this Agreement,
with respect to Employee's employment with the Company, the terms and conditions
of his employment or the termination of his employment; provided,
however, that the foregoing release shall not be applicable to any claims
made against the Company by third parties arising out of Employee's acts or
omissions which are determined to be outside the scope of his employment, in
breach of his duties of loyalty or due care, in breach of his fiduciary
duties or in contradiction to public policy.
7. REVIEW. Employee acknowledges that Employee has been advised by
the Company to consult with an attorney. Employee represents that Employee
is a licensed attorney, licensed to practice law in the State of Colorado.
Employee has read and understands this Agreement, and Employee has signed this
Agreement freely and voluntarily. Employee further acknowledges that Employee
has been given at least twenty-one (21) days to consider signing the
Agreement, that Employee will have seven (7) days following signing the
Agreement to revoke it, and the Agreement will not become effective until the
seven (7) day revocation period has expired. Such revocation must be in
writing and received prior to the end of the revocation period.
8. NO ADMISSIONS. Nothing in this Agreement, including the payment
of any sum by the Company, constitutes an admission by the Company of any
legal wrong in connection with the employment and termination of Employee.
9. COVENANT NOT TO XXX. Employee covenants and agrees that he
will never, individually or with any person or in any way, commence; aid in
any way, except as required by due legal process, prosecute; or cause or
permit to be prosecuted, any lawsuit, charge or other proceeding against the
Company Releasees based upon any claim which he has released in this
Agreement. This Agreement shall be deemed breached immediately upon the
commencement or prosecution of any lawsuit or proceeding contrary to this
Agreement.
In the event of any breach of this Section 9, the aggrieved Company
Releasee shall be entitled to recover from Employee not only the amount of any
judgment which may be awarded against that the Company Releasee, but also all
such other damages, costs and expenses as may be incurred by that Company
Releasee, including attorney's fees and expenses in defending against or
seeking to stop any lawsuit or proceeding brought by Employee in violation
of this covenant not to xxx.
10. CONFIDENTIALITY. Except as required by an order of a court of law,
the parties agree not to disclose or publicize the terms of this Agreement,
or to assist others to disclose or publicize the terms of this Agreement. This
non-disclosure Agreement applies to the parties, their attorneys, agents,
officials, managers, employees and spouses as well as to the named parties.
11. AGREEMENT UNDERSTOOD. By freely, knowingly and voluntarily
executing this Agreement and the Release, both parties confirm that they have
had the opportunity to have this Confidential Agreement and General Release
explained to them by their attorneys. The Company is relying on its own
judgment and on the advice of its attorneys and not upon any recommendation of
Employee or Employee's agents, attorneys, or other representatives. By
executing this Agreement Employee is relying on Employee's own judgment and
on the advice of Employee's attorneys, if Employee has chosen to engage
counsel, and not upon any recommendations by the Company or its directors,
officers, employees, agents, attorneys, or other representatives. By voluntarily
executing this Agreement, each party confirms his or its competence to
understand and does hereby accept the terms of this Agreement as resolving
fully all differences, disputes and claims that may exist within the scope of
the Agreement.
12. GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with, and the validity and performance hereof shall be governed by,
the laws of the State of Colorado.
13. SEVERABILITY. In the event that any one or more of the provisions
of this Agreement shall for any reason be held to be invalid or unenforceable,
the remaining provisions of this Agreement shall be unimpaired, and shall
remain in effect and be binding upon the parties.
14. FINAL AGREEMENT. This Agreement sets forth the entire understanding
of the parties and supersedes any and all prior Agreements, arrangements or
understandings related to the subject matter described herein, and no
representation, promise, inducement or statement of intention has been made
by either party which is not embodied herein.
DATED this 5th day of November, 1996.
/s/ Xxxx X. Field
--------------------------
Xxxx X. Field, EMPLOYEE
STATE OF COLORADO )
) ss.
COUNTY OF XXXXXXX )
On this 5th day of November, 1996, personally appeared before me a
Notary Public, Xxxx X. Field, personally known to be (or proved to me on the
basis of satisfactory evidence) to be the person whose name is subscribed to
the within instrument, and acknowledgment that he executed the same.
IN WITNESS THEREOF, I have hereunto set my hand an affixed my official
seal in this certification first written above.
My Commission expires:___________________
[SEAL]
___________________________________
NOTARY PUBLIC
ICG COMMUNICATIONS, INC.
By: /s/ J. Xxxxxx Xxxxx
_________________________________
J. Xxxxxx Xxxxx,
President and Chief Executive Officer
