SEPARATION AGREEMENT AND GENERAL RELEASE
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This Separation Agreement and General Release (hereinafter "Separation
Agreement") is entered into by and between Xxxxxx X. Xxxxxxx (hereinafter "XX.
XXXXXXX"), and YDI Wireless, Inc., formerly known as Telaxis Communications
Corporation, (hereinafter "YDI"). In this Separation Agreement, YDI shall at all
times include any and all related entities, corporations, partnerships and
subsidiaries, as well as their respective current and former directors,
officers, trustees, partners, employees, predecessors in interest, successors in
interest, representatives and agents, both in their representative and
individual capacities, but excluding XX. XXXXXXX in any capacity.
WHEREAS, XX. XXXXXXX'x employment with YDI ended on April 8, 2003;
WHEREAS, XX. XXXXXXX and YDI disagree on whether he is entitled to certain
severance benefits under the terms of his employment agreement; and,
WHEREAS, the parties desire that their relationship end in a professional
manner, and to avoid litigation;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, it is agreed by the parties as follows:
FIRST: SEPARATION
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XX. XXXXXXX'x employment by YDI ceased on April 8, 2003. Nothing in this
agreement shall be construed as extending XX. XXXXXXX'x employment beyond April
8, 2003.
SECOND: COMPENSATION
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XX. XXXXXXX has already received salary up through and including April 8,
2003, as well as certain FTO payments. In exchange for XX. XXXXXXX'x execution
of this Separation Agreement and Release, YDI agrees to pay XX. XXXXXXX and his
counsel One Hundred Fifteen Thousand and 00/100 ($115,000.00) Dollars, less all
applicable taxes and appropriate withholdingsPayment shall be no later than
October 10, 2003MR. XXXXXXX is obligated to inform YDI of his desired
withholdings on this amount upon entering into this Separation Agreement.
Said amount represents any and all moneys that shall be paid to XX. XXXXXXX
for settlement of all his claims for damages relating to his employment by YDI,
and the termination of said employment, including any and all claims for
severance benefits under the terms of his contract of employment, as well as his
attorney's fees, and all other costs associated with those claims.
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SEPERATION AGREEMENT BETWEEN XXXXXX X. XXXXXXX AND YDI WIRELESS, INC.
THIRD: COMPLETE RELEASE
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In exchange for the mutual promises contained herein and the payment made
to XX. XXXXXXX on the disputed claim, XX. XXXXXXX, on behalf of himself, his
heirs and assigns, irrevocably and unconditionally releases YDI from all claims,
controversies, liabilities, demands, causes of action, debts, obligations,
promises, acts, agreements, , and damages of whatever kind or nature, whether
known or unknown, suspected or unsuspected, foreseen or unforeseen, liquidated
or contingent, actual or potential, jointly and individually, that he has had or
may have as of the execution of this Agreement, based on any and all aspects of
XX. XXXXXXX'x employment with YDI or his separation from that employment,
including, but not limited to, any and all claims for breach of express or
implied contract or covenant of good faith and fair dealing (whether written or
oral), all claims for retaliation or violation of public policy, breach of
promise, detrimental reliance or tort (e.g., intentional infliction of emotional
distress, defamation, assault, battery, false imprisonment, wrongful
termination, interference with contractual or advantageous relationship, etc.),
whether based on common law or otherwise; all claims arising under the
Massachusetts Fair Employment Practices Act; the Massachusetts Equal Rights Law;
Title VII of the Civil Rights Act of 1964, as amended; the Age Discrimination in
Employment Act; the Americans with Disabilities Act; claims for emotional
distress, mental anguish, personal injury, loss of consortium; any and all
claims that may be asserted on XX. XXXXXXX'x behalf by others; the Employee
Retirement Income Security Act of 1974 ("ERISA"); or any other federal, state or
local laws or regulations relating to employment or benefits associated with
employment. The foregoing list is meant to be illustrative rather than
inclusive. Notwithstanding the above, it is understood that XX. XXXXXXX does not
waive any rights he may have to vested benefits under any retirement or employee
welfare plan that may be due him upon his separation from the company, that XX.
XXXXXXX does not relinquish any rights to exercise his current stock options and
that the Indemnification Agreement dated September 18, 2000 between XX. XXXXXXX
and Telaxis Communications Corporation shall remain in full force and effect.
YDI releases XX. XXXXXXX from any claim based upon his separation from YDI
and the benefits he received as a result.
FOURTH: NO LAWSUITS OR CLAIMS
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XX. XXXXXXX specifically represents that he has not instituted a lawsuit
against YDI and that it is not his intention to do so and that he will not
institute any lawsuit or other proceeding against YDI based on any claims or
rights that are released by XX. XXXXXXX in Paragraph Third above. YDI represents
that it has not instituted a lawsuit against XX. XXXXXXX, and that it is not its
intention to do so and that it will not institute any lawsuit or other
proceeding against XX. XXXXXXX based on any claims or rights that are released
by YDI in Paragraph Third above.
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SEPERATION AGREEMENT BETWEEN XXXXXX X. XXXXXXX AND YDI WIRELESS, INC.
XX. XXXXXXX specifically acknowledges that this waiver and release releases
YDI from liability for any alleged discrimination that could be the subject
matter of any charge XX. XXXXXXX may subsequently file with the Equal Employment
Opportunity Commission ("EEOC"), the Massachusetts Commission Against
Discrimination ("MCAD") or any other agency. XX. XXXXXXX further acknowledges
and agrees that, with respect to the rights and claims he is waiving, he is
waiving not only his right to recover in any action he might commence, but also
his right to recover in any action brought on his behalf by any other party,
including, but not limited to, the U.S. Equal Employment Opportunity Commission
("EEOC"), the MCAD, or any other federal, state or local governmental agency or
department.
FIFTH: ADEQUATE CONSIDERATION
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XX. XXXXXXX agrees that the payment set forth herein constitutes adequate
and ample consideration for the rights and claims he is waiving under this
Separation Agreement.
XX. XXXXXXX further agrees that such consideration shall be in lieu of any
other compensation or benefits to which XX. XXXXXXX may be entitled, or may
claim to be entitled.
SIXTH: RESIGNATION ACCEPTED
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XX. XXXXXXX has voluntarily resigned from his position as an employee, and
YDI accepts his resignation effective on April 8, 2003. Any documents in XX.
XXXXXXX'x personnel files and other records, including the records of the Board
of Directors or any of its subcommittees, that are inconsistent with this tender
and acceptance of his resignation will be purged from said file or revised. XX.
XXXXXXX and YDI agree that XX. XXXXXXX will not in the future be employed by
YDI.
SEVENTH: NON-DISPARAGEMENT COVENANT
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XX. XXXXXXX and YDI both agree that they will engage in no conduct which is
either intended to or could reasonably be expected to harm the other's business
pursuits or the other's professional reputation.
EIGHTH: CONFIDENTIALITY
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YDI and XX. XXXXXXX recognize and acknowledge that YDI will need to make
this document and its contents public as a matter of securities laws and
regulations. XX. XXXXXXX and YDI both understand that they will not voluntarily
provide testimony about XX. XXXXXXX'x employment, separation, or this Agreement,
except to the extent required by law.
NINTH: REVIEW AND CONSIDERATION PERIOD; REVOCATION
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SEPERATION AGREEMENT BETWEEN XXXXXX X. XXXXXXX AND YDI WIRELESS, INC.
XX. XXXXXXX hereby acknowledges that he has been informed that he has
twenty-one (21) days to review and consider this Separation Agreement and also
acknowledges that he hereby has been encouraged to obtain the advice of an
attorney about the terms of this Separation Agreement and that he has indeed
obtained such advice. XX. XXXXXXX understands that he may revoke this Separation
Agreement within seven (7) days of signing it by providing written notice of
such revocation to the Chief Executive Officer of YDI. XX. XXXXXXX further
understands and agrees revocation shall only be effective upon the receipt of a
written notice to YDI within seven (7) days after XX. XXXXXXX signs this
Separation Agreement.
TENTH: CONSEQUENCES OF BREACH; PROCEDURES
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In the event that either party institutes legal proceedings to enforce the
terms of this Separation Agreement, it is specifically understood and agreed
that such a claim shall be submitted to final and binding arbitration pursuant
to the rules of the American Arbitration Association, and that the prevailing
party shall recover its costs and reasonable attorney's fees incurred in such
arbitration proceeding. Nothing in this provision precludes a party from seeking
equitable relief in the Superior Court, whether in addition to or in lieu of a
court proceeding, to prevent a violation of this Agreement.
ELEVENTH: NON-ADMISSION OF LIABILITY
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Each party acknowledges that each party expressly denies that it has done
anything wrong and that by entering into this Separation Agreement voluntarily
neither party admits that it has done anything wrong to the other.
TWELTH: MISCELLANEOUS
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If any provision of this Separation Agreement, or any part of any provision
of this Separation Agreement, is found to be invalid by a court of competent
jurisdiction, such shall not affect the validity of any other provision, or part
thereof, of this Separation Agreement. YDI and XX. XXXXXXX agree that this
Separation Agreement constitutes their entire final understanding and agreement
with respect to the subject matter hereof and supersedes all prior or
contemporaneous negotiations, promises, covenants, agreements, or
representations concerning all matters directly, indirectly, or collaterally
related to the subject matter of this Separation Agreement except that Section 7
of Amendment I to the Employment Agreement dated August 29, 2002 entered into by
XX. XXXXXXX and Telaxis Communications Corporation, and the Indemnification
Agreement dated September 18, 2000 entered into by XX. XXXXXXX and Telaxis
Communications Corporation shall remain in full force and effect and shall be
considered a part of and incorporated into this Agreement. XX. XXXXXXX and YDI
agree that this Separation Agreement cannot be amended or modified except by a
writing executed by both of the parties hereto or their respective
administrators, trustees, personal representatives, and successors. The parties
further agree that this
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SEPERATION AGREEMENT BETWEEN XXXXXX X. XXXXXXX AND YDI WIRELESS, INC.
Separation Agreement is governed by the laws of the Commonwealth of
Massachusetts.
THIRTEENTH: MUTUAL PREPARATION
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YDI and XX. XXXXXXX agree that no single party shall be deemed to have
drafted this Separation Agreement or any portion thereof. This Separation
Agreement is the product of the collaborative effort of YDI and XX. XXXXXXX and
their counsel and therefore the rule of contract interpretation of construing
ambiguities against the drafter shall have no application to this Separation
Agreement.
FOURTEENTH: PROPERTY OF YDI
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XX. XXXXXXX agrees and acknowledges that he has returned to YDI all
property of YDI. For purposes of this paragraph, "property of YDI" includes, but
is not limited to, products and prototypes, keys, corporate credit cards,
identification cards, equipment, books, supplies, personal digital assistants,
pagers, cellular telephones, computers, computer programs, computer files,
computer disks, pictures, components, originals and copies of all corporate
documents, including financial records and information, and any other materials,
whether prepared by you or by others, but excludes anything owned by you
individually.
FIFTEENTH: ACKNOWLEDGMENT
THE PARTIES HERETO ACKNOWLEDGE THAT THEY HAVE CAREFULLY READ AND UNDERSTAND
THIS SEPARATION AGREEMENT AND AGREE THAT NEITHER PARTY HAS MADE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED HEREIN.
XX. XXXXXXX AND YDI ALSO ACKNOWLEDGE THAT THEY ENTER INTO THIS SEPARATION
AGREEMENT VOLUNTARILY, WITH FULL KNOWLEDGE OF ITS SIGNIFICANCE, AND WITHOUT
PRESSURE OR COERCION. XX. XXXXXXX FURTHER ACKNOWLEDGES THAT HE HAS HAD
SUFFICIENT TIME TO CONSIDER THIS AGREEMENT AND CONSULT WITH AN ATTORNEY OF HIS
CHOOSING PRIOR TO EXECUTING THIS AGREEMENT.
IN WITNESS WHEREOF, YDI and XX. XXXXXXX have executed this Separation
Agreement and General Release in duplicate.
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SEPERATION AGREEMENT BETWEEN XXXXXX X. XXXXXXX AND YDI WIRELESS, INC.
YDI Wireless, Inc.
By:/s/ Xxxxxx Xxxxxxxxxx /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx Xxxxxxxxxx, Chief Executive Officer Xxxxxx X. Xxxxxxx
Dated: Dated: September 15, 2003
Witness: Witness:
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