GENERAL RELEASE AND SEPARATION AGREEMENT
Exhibit
10.1
This
GENERAL RELEASE AND SEPARATION AGREEMENT (this
“Agreement”)
is
entered into effective as of the 5th
day of
June, 2008 (the “Effective
Date”)
by and
between g8wave Holdings, Inc., a Delaware corporation (the “Company”),
and
Xxxxxxx X. Xxxxxxx, an individual (“Executive”).
WHEREAS,
the
Company and Executive are parties to that certain Employment Agreement dated
as
of April 21, 2006, as amended by that certain First Amendment to Employment
Agreement dated January 25, 2008 (the “Employment
Agreement”);
WHEREAS,
the
Employment Agreement permits either party to terminate the Employment Agreement
with twenty (20) days prior written notice, which notice has been waived by
both
parties; and
WHEREAS,
the
Company no longer desires to employ Executive and Executive no longer desires
to
be employed by the Company;
NOW,
THEREFORE,
for
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, hereby agree
as
follows:
1. Termination
of Employment Agreement and Waiver of Non-Competition.
The Employment Agreement is hereby terminated as of the Effective Date and
shall be of no further force and effect thereafter. The Company hereby waives
any and all rights it may have under the post-termination non-competition
provisions of Section 4a of the Employment Agreement.
2. General
Releases.
(a) Release
by Executive.
Except
as expressly provided herein, Executive, on behalf of himself, his heirs,
executors, administrators, successors and assigns (collectively referred to
as
the “Executive
Parties”),
hereby releases and discharges the Company, its affiliates, subsidiaries,
parent, each of their successors and assigns, and each of their officers,
directors, employees, stockholders, agents, accountants and attorneys
(collectively referred to as the “Company
Released Parties”),
from
any and all actions or causes of action, suits, debts, dues, sums of money,
accounts, reckonings, bonds, bills, specialties, covenants, contracts,
controversies, agreements, promises, variances, trespasses, damages, judgments,
extents, executions, obligations, liabilities, claims, and demands whatsoever,
in law, admiralty or equity (collectively, the “Claims”),
which
the Executive Parties ever had, now have or hereafter, can, shall or may have
based upon Executive’s employment by the Company and the termination of that
employment, including (i) any and all Claims of wrongful discharge or other
tort, and all rights under federal, state or local law, including those that
prohibit race, sex, age, religion, national origin, handicap, disability or
other forms of discrimination, including but not limited to, Title VII of the
Civil Rights Act of 1964, as amended, the Civil Rights Act of 1991, any state
or
local human rights laws, and all Claims under the Workers’ Compensation laws,
the Equal Pay Act, the National Labor Relations Act, as amended, the Americans
with Disabilities Act, the Federal Rehabilitation Act, the Employee Retirement
Income Security Act of 1974, as amended, the Family and Medical Leave Act,
and
(ii) any and all Claims arising under any contract, including the Employment
Agreement, any side letter, offer letter, policy, practice, program or plan,
including Claims for severance pay, incentive compensation, change in control
payments, bonus, or other compensation or benefits, but excluding, in each
case,
Claims arising under this Agreement.
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Exhibit
10.1
(b) Release
by Company.
Except
as expressly provided herein, the Company, on behalf of itself, its affiliates,
subsidiaries, parents, officers, directors, employees and shareholders and
each
of their successors and assigns (collectively referred to as the “Company
Releasing Parties”),
hereby releases and discharges the Executive Parties from any and all Claims,
which the Company Releasing Parties ever had, now has or hereafter, can, shall
or may have based upon any act or omission of Executive arising through the
Effective Date with respect to Executive’s employment with the Company or its
subsidiaries (but not with respect to Executive’s position as a director of the
Company), including, without limitation any Claims arising under any contract,
including the Employment Agreement, any side letter, offer letter, policy,
practice, program or plan, but excluding, in each case, Claims arising under
this Agreement.
(c) Notwithstanding
anything to the contrary contained in this Section 2, the releases contained
in
Section 2(a) and 2(b) hereof shall in no way relate to or affect (i) the
obligations and liabilities of the parties pursuant to that certain Stock
Purchase Agreement dated May 12, 2008, by and between the Company, Executive
and
PMCG Management Company, LLC (the “Stock
Purchase Agreement”),
and
any obligations and liabilities arising out of the documents delivered in
connection therewith, (ii) the right of Executive to obtain indemnification
(as
provided in the Company’s charter documents) with respect to any third party
Claims against Executive in his capacity as an officer or director of the
Company, and (iii) any rights Executive may have as a stockholder of the
Company.
3. Opportunity
to Review.
Executive acknowledges that he has been provided with a sufficient opportunity
to review this Agreement prior to signing it, and that he is knowingly and
voluntarily entering into this Agreement.
4. Governing
Law.
This
Agreement shall be governed by and construed under the laws of the Commonwealth
of Massachusetts, without regard to conflict of laws principles, except that
the
validity and enforceability of the releases not to xxx with respect to Claims
based on federal law shall be governed by the applicable federal
law.
5. No
Modification.
This
Agreement shall not be modified or discharged, in whole or in part, except
by
agreement in writing signed by the parties hereto.
6. Integration/Merger.
The
parties acknowledge that (a) this Agreement constitutes the entire agreement
between them with respect to the termination of Executive’s employment with the
Company, (b) they have not relied on any representation not contained herein,
and (c) this Agreement supersedes any and all prior agreements or understandings
between them with respect to the termination of Executive’s employment with the
Company.
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Exhibit
10.1
7. Counterparts.
This
Agreement may be executed in one or more counterparts and delivered by facsimile
or electronic signature, each of which will be deemed an original and all of
which constitute one and the same agreement.
[Signature
Page to Follow]
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Exhibit
10.1
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
Effective Date.
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EXECUTIVE
|
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/s/
Xxxxxxx X.
Xxxxxxx
Xxxxxxx
X. Xxxxxxx
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By:/s/
Xxxxx
Xxxxxx
Xxxxx
Xxxxxx
Chief
Executive Officer
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