SETTLEMENT, RELEASE AND SEPARATION AGREEMENT
--------------------------------------------
THIS SETTLEMENT, RELEASE AND SEPARATION AGREEMENT (the "Agreement"),
made this 18th day of October, 1999, (the "Date of this Agreement") by and among
VDC COMMUNICATIONS, INC. (the "Company"), a Delaware corporation and XXXXXX X.
XXXXXX (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:
---------
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. The Company shall pay to the Employee, during the
Company's normal pay cycles, severance pay, based upon the Employee's salary as
of the Termination Date, from the Termination Date (as defined below) through
November 15, 1999, 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, 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 Company shall continue the Employee's medical benefits
through the month of October 1999 and shall pay 1/2 of the monthly premium
payment for the Employee's current Xxxxxx Permanente medical insurance for the
month of November 1999. Thereafter, neither the Company nor the VDC entities
shall have any further obligation to pay for medical benefits for the Employee
or his family. The Employee acknowledges that, but for the execution of this
Agreement, the Company is not otherwise required to continue the Employee's
medical benefits through the month of October 1999 or pay 1/2 of the monthly
premium payment for the Employee's current Xxxxxx Permanente medical insurance
for the month of November 1999.
1
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
Corporation Ltd. dated April 1, 1998 by and between the Employee and VDC Bermuda
(the "April Option Agreement") representing options to purchase 5,000 shares of
VDC Bermuda (the "April Options"), an Option to Purchase Common Shares of VDC
Corporation Ltd. dated September 2, 1998 by and between the Employee and VDC
Bermuda (the "September Option Agreement") representing options to purchase
2,500 shares of VDC Bermuda (the "September 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 42,500 shares of Company common stock (the "December Options").
(a) Upon executing this Agreement, the Employee
shall deliver to the Company at its offices in Greenwich, Connecticut the
original April Option Agreement, the original September Option Agreement, and
the original December Option Agreement. The original April Option Agreement, the
original September Option Agreement, and the original December Option Agreement
shall be superseded and rendered null and void by the Amended Agreement (as
defined below).
(b) Within thirty (30) calendar days after date on
which this Agreement is completely executed (the "Execution Date") and provided
that the Employee has returned to the Company the original April Option
Agreement, the original September Option Agreement, and the original December
Option Agreement, the Employee shall receive from the Company, and shall
promptly execute and return to the Company, 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 thirty (30) calendar days after
the Execution Date (the "Vested Options");
(2) options to purchase 25,000 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;
2
(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, as amended, and said Registration Statement
is effective;
(6) the per share exercise price for the
shares subject to the option represented by the Amended Agreement shall be
$1.25 per share; and
(7) 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.
(c) The Amended Agreement and the options
represented thereby shall be issued in accordance with the Company's 1998 Stock
Incentive Plan, as amended. The Employee hereby consents to and approves the
amendment to the Company's 1998 Stock Incentive Plan and will promptly execute
any additional documents provided to the Employee by the Company to further
signify his approval of such amendment. The Employee represents and warrants to
the Company that the Company provided the Employee with a copy of the Company's
1998 Stock Incentive Plan, as amended, prior to his execution of this Agreement
and that he read, understood, and had an opportunity to ask questions about such
plan.
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) ended forever on October 11, 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 March 15, 1998, as amended, is hereby terminated.
3
5. Surrender of Rights to Securities and Registration Rights. 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. The Registration Rights Agreements by and between the Employee and VDC
Bermuda dated April 1, 1998 and September 2, 1998 (collectively the
"Registration Rights Agreements") are hereby terminated. Upon executing this
Agreement, the Employee shall deliver to the Company at its offices in
Greenwich, Connecticut the Registration Rights Agreements.
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
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 spouse,
assigns, heirs, executors, administrators, and representatives (collectively the
"Releasors") for and in consideration of the undertakings set forth in this
4
Agreement and intending to be legally bound, do hereby REMISE, RELEASE AND
FOREVER DISCHARGE the Company and its subsidiaries, affiliates, predecessors,
successors, assigns, and all of its present and former managers, members,
officers, directors, shareholders, employees, agents, representatives,
attorneys, insurers, and all of the foregoing's present and former officers,
directors, partners, principals, employees, members, managers, shareholders,
trustees, attorneys, insurers, agents, representatives, and their respective
spouses, successors, heirs, executors, estates, administrators, representatives,
attorneys and agents (collectively the "VDC Released Parties"), from and against
all claims, causes of action, demands, or suits of any kind, known or unknown
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 through 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:
(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
5
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.
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.
6
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 affiliates' ability
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.
7
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.
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.
10.9 The Company shall give to the Employee the Fujitsu
Lifebook laptop computer (the "Computer") purchased by the Company for use by
the Employee during his employment. Upon request by the Company, the Employee
shall promptly provide the Company with a copy of all files on the Computer
associated with or pertaining to the business of the VDC Entities, including,
but not limited to, those containing the names, addresses, and telephone numbers
8
of vendors, business contacts, and other individuals and entities. The Employee
acknowledges that, but for the execution of this Agreement, the Employee would
not be entitled to keep the Computer.
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 Except for the Computer, the Employee has returned to the
Company all discs, contracts, notes, business cards, 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, 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.
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.
9
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
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
10
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
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
President or Chief Executive Officer of the Company at its principal offices.
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. A condition precedent to the Company being obligated
to make the cash payment provided for in Section 1 or providing the option
amendment referenced in Section 2.2(b), is that the Employee shall execute and
deliver to the Company the Certification attached hereto as Exhibit "A" and
incorporated herein by reference.
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.
11
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 effect 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.
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.
--------------------------------------------------------------------------------
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.
--------------------------------------------------------------------------------
12
IN WITNESS WHEREOF, the Parties have executed this Agreement the day
and year first above written.
COMPANY:
VDC COMMUNICATIONS, INC.
By:/s/ Xxxxxxxxx X. Xxxxx
------------------------
Xxxxxxxxx X. Xxxxx
Chairman and CEO
EMPLOYEE:
/s/ Xxxxxx X. Xxxxxx
---------------------------
Xxxxxx X. Xxxxxx
13
SCHEDULE 11.1
NONE.
14
EXHIBIT "A"
CERTIFICATION
-------------
I, Xxxxxx X. Xxxxxx, 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 18, 1999 (the
"Agreement"), as of October 26, 1999. VDC Communications, Inc. may rely upon
this Certification in forwarding to me certain payments provided for in the
Agreement.
------------------
Xxxxxx X. Xxxxxx
------------------
Dated
State of
------------------------------
County of
-----------------------------
Before me, the undersigned, personally appeared Xxxxxx X. Xxxxxx, 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:
------------
15
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 "B"
October 18, 1999
To Whom It May Concern:
This letter will confirm that Xxxxxx X. Xxxxxx was an employee of VDC
Communications, Inc. ("VDC") from March 15, 1998 to October 11, 1999. During his
time as an employee of VDC, Xx. Xxxxxx initially served as Senior Account
Executive and was later promoted to Vice President, Sales and Marketing. During
his time at VDC, Xx. Xxxxxx'x salary was initially $60,000 per annum and was
later increased to $72,500 per annum.
During Xx. Xxxxxx'x employment at VDC, he demonstrated a commitment
to VDC's success, a take-charge attitude and was professionally cooperative.
Xx. Xxxxxx consistently worked a long workday on VDC's behalf. He was always a
team player and remained fully dedicated to VDC's success. It has been a
pleasure to work with him at VDC. I recommend Xx. Xxxxxx highly as an excellent
employee and responsible, competent business executive.
Very truly yours,
Xxxxxxxxx X. Xxxxx
Chairman & CEO
FAM/lg
16
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: XXXXXX X. XXXXXX
Dear Addressee:
This letter shall serve as notice that Xxxxxx X. Xxxxxx has resigned
from all positions he held with VDC Communications, Inc. and VDC
Telecommunications, Inc. in order to pursue other interests. As such, Xx. Xxxxxx
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
FAM/lg
17
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: 10/20/99
-------------------
18
State of Colorado
County of Arapahoe
Before me, the undersigned, personally appeared Xxxxxx X. Xxxxxx, known to me
(or satisfactorily proven) to be the person who executed the within document and
acknowledged that he executed the same for the purposes therein contained. In
witness whereof, I hereunto set my hand.
/s/ Xxxxxx X.X. Xxxxxxxx
------------------------
(Notary Public)
Dated: 10/18/99
------------------
19
