Exhibit 10.11
-------------
SEPARATION AGREEMENT AND RELEASE
--------------------------------
This Separation Agreement and Release (the "Agreement"), dated as of
February 9, 2001, is entered into by Xxxxx X. Xxxxxx (the "Employee") and ARC
Wireless Solutions, Inc., a Utah corporation (the "Company"). For purposes of
this Agreement, each of Employee and the Company may be referred to individually
as a "Party", and both Employee and the Company may be referred to collectively
as the "Parties".
Recital
-------
The Parties have entered into an Employment Agreement dated as of July 3,
2000 (the "Employment Agreement"). As part of restructuring plan, the Parties
desire to provide for the termination of Employee's employment with the Company
and the termination of the Employment Agreement, according to the terms and
conditions as set forth in this Agreement.
Agreement
---------
The Parties acknowledge that the terms and conditions of this Agreement
have been voluntarily agreed to and that such terms are intended to be final and
binding. In consideration of the respective agreements and promises of the
Parties contained in this Agreement, the Parties agree as follows:
1. It is mutually agreed that Employee's employment with the Company shall
be terminated effective February 21, 2001 (the "Termination Date"). Employee
agrees that, effective as of the Termination Date, Employee has resigned from
his positions as an officer and director of the Company and, as applicable, as
an employee, officer and director of each of the Company's subsidiaries and
affiliates. In consideration for acceptance of the terms contained in this
Agreement and the release of claims contained herein, the Company agrees to
provide Employee with the following compensation and benefits (the "Separation
Benefits"):
1.1 The Company will pay Employee, for 90 days after the Termination
Date, the same salary that the Company has been paying Employee under the
Employment Agreement, with payments being made on the Company's usual payroll
dates. No additional compensation for vacation and sick days will accrue or be
payable to Employee during the 90-day period.
1.2 The Company shall issue to Employee options (the "Severance
Options") to purchase 250,000 shares of the restricted comment stock of the
Company for a period of three years commencing on the Termination Date at an
exercise price equal to the closing bid quotation of the Company's common stock
on the Termination Date as reported by the OTC Bulletin Board. The Severance
Options shall be represented by an agreement substantially in the form of
Exhibit A attached to and made a part of this Agreement. All other options (the
"Other Options") issued by the Company to Employee prior to the Termination Date
shall be terminated as of the Termination Date and of no further effect.
Employee shall, on the Termination Date and as a condition to receiving the
Severance Options, deliver to the Company all agreements and other documents
representing the Other Options.
2. All amounts payable and benefits provided under this Agreement shall be
paid or provided subject to the withholding of any applicable taxes or other
amounts required by law to be withheld.
3. Employee represents that to the best of Employee's knowledge Employee
has returned all documents, files, and other property of any kind belonging to
the Company; in the event, however, that Employee has not done so, Employee
shall promptly return any such remaining items to the Company.
4. Except as regards the respective obligations of the Company and Employee
provided for or contemplated in this Agreement, Employee agrees to release and
forever discharge the Company, subsidiaries, affiliates, directors, officers,
employees, agents, representatives, successors, and assigns (collectively
referred to as the "Releasee"), and the Company agrees to release Employee, from
any and all obligations, liabilities, damages, costs, claims, complaints,
charges, or causes of actions in law or equity (collectively "Claims") that
Employee or Employee's heirs, administrators, successors, or assigns, and that
the Company, respectively, may now have or may ever have against the Releasee,
or the Employee, respectively, whether accrued, absolute, contingent,
unliquidated or otherwise, and whether known or unknown on the date of this
Agreement, and which have or may have arisen out of any act or omission
occurring, or state of facts existing, prior to the Termination Date, including
but not limited to Claims in any way related to Employee's employment with the
Company or the termination of that employment, and Claims based on federal,
state, or local law or regulation or the common law, including but not limited
to Claims in any way related to the Age Discrimination in Employment Act, Title
VII of the Civil Rights Act of 1964, Civil Rights Act of 1991, Equal Pay Act,
Fair Labor Standards Act, Americans with Disabilities Act, Employee Retirement
Income Security Act, all applicable state and local labor and employment laws
(including all laws concerning unlawful and unfair labor and employment
practices), breach of contract, wrongful discharge, defamation or intentional
infliction of emotional distress.
5. Employee represents that with respect to any act or omission occurring,
or state of facts existing, on or prior to the date of execution of this
Agreement, Employee has not filed any complaints, charges or lawsuits against
the Releasee with any government agency or any court.
6. Employee agrees that Employee shall not discourage, or attempt to
discourage, any person, firm, corporation or business entity from doing business
with the Company or utilizing the services of the Company.
7. Employee understands that Employee had access to certain information
concerning the Company and its business that was provided solely in connection
with Employee's employment with the Company. Any other use of this information
at any time during or after the term of this Agreement is prohibited. Further,
Employee understands that the Company is a publicly traded company and it is
important for the Company to protect the rights of its shareholders. Employee
understands that applicable federal securities laws impose significant
restrictions concerning the use or disclosure of certain non-public information
in general and in buying or selling, or discussing with others the possibility
of buying or selling, the Company's stock by persons who have access to material
information concerning the Company which is not generally available to members
of the general public. Employee understands that Employee is subject to these
restrictions and Employee agrees that Employee will not, and that Employee will
insure that any persons having access to such non-public information through
Employee will not, buy or sell the Company's stock, or discuss with others any
material non-public information concerning the Company or the possibility or
advisability of buying or selling the Company's stock, at any time that Employee
possesses material non-public information concerning the Company. Employee
agrees that Employee will not at any time disclose, to any person or entity for
any reason or purpose whatsoever, nor use for Employee's own personal benefit
for the benefit of any person or entity, any information concerning the
-2-
financial or business or other operations of the Company that is not publicly
known, provided that this restriction shall not apply to information required to
be disclosed under applicable laws, regulation, court order or subpoena to which
the Employee is subject. It is expressly agreed that the terms and conditions of
this Section 7 shall apply after the Termination Date.
8. Employee acknowledges and recognizes the highly competitive nature of
the Company's business and that Employee's duties hereunder justify restricting
Employee's further employment following the Termination Date. The Employee
agrees that (i) for a period of one (1) year following the Termination Date (the
"Non-Compete Period"), Employee, except when acting on behalf of or for the
benefit of the Company, will not induce customers, agents or other sources of
distribution of the Company's business under contract or doing business with the
Company to terminate, reduce, alter or divert business with or from the Company,
and (ii) during the Non-Compete Period, Employee will not compete with the
Company, or participate as an officer or a principal in any business that
includes part or all of the Company's Area Of Business, as defined below.
Ownership by Employee, for investment purposes only, of less than five percent
of any class of securities of a corporation if said securities are listed on a
national securities exchange or registered under the Securities Exchange Act of
1934, as amended, shall not constitute a breach of the covenant set forth under
(ii) above. The Company's Area Of Business refers to the design, development,
marketing and sale of a line of antennas and wireless communication systems
throughout North America by the Company and any other business in which the
Company is engaged in prior to the Non-Compete Period. It is the desire and
intent of the Parties that the provisions of this Section 8 be enforced to the
fullest extent permissible under the laws and public policies applied in each
jurisdiction in which enforcement is sought. Accordingly, if any particular
portion of Section 8 shall be adjudicated to be invalid or unenforceable,
Section 8 shall be deemed amended to apply in the broadest allowable manner and
to delete therefrom the portion adjudicated to be invalid or unenforceable, such
amendment and deletion to apply only with respect to the operation of Section 8
in the particular jurisdiction in which that adjudication is made.
9. For a period of one (1) year following the Termination Date, the
Employee shall not without the prior written consent of the Company interfere
with the Company's relationship with, or employ, or endeavor to entice away from
the Company, any employee of the Company, subsidiaries or affiliates.
10. The Parties acknowledge and agree that this Agreement and the terms
contained herein supersede all previous contracts and agreements between the
Parties, including but not limited to the Employment Agreement.
11. The Company shall indemnify Employee, to the full extent permitted by
the laws of the State of Utah, for any costs or damages to third parties
incurred by Employee as a result of Employee's employment by the Company.
12. Nothing in this Agreement is to be understood as an admission by the
Company of any liability on its part under any federal, state, or local law or
regulation or the common law.
13. This Agreement shall be binding upon any and all successors and assigns
of Employee and the Company.
-3-
14. Except for issues or matters as to which federal law is applicable,
this Agreement shall be governed by and construed and enforced in accordance
with the laws of the State of Colorado without giving effect to the conflicts of
law principles thereof.
EMPLOYEE
Dated February 21, 2001
-----------------------
/s/ Xxxxx X. Xxxxxx
------------------------------ --------------------------------------
Witness Xxxxx X. Xxxxxx, individually
ARC WIRELESS SOLUTIONS, INC.
By: /s/ Xxxxxxx X. Xxxx
-----------------------------------
-4-
