Exhibit 10.5
EMPLOYMENT, SEPARATION, AND RELEASE AGREEMENT
THIS EMPLOYMENT, SEPARATION AND RELEASE AGREEMENT (the "Release") is made and
entered into as of August 20, 2001, by and between TRITON NETWORK SYSTEMS, INC.
a Florida corporation (the "Company") and Xxxxxxx X.X. Xxxxxxxx, whose address
is 0000 Xxxxxxx' Xxxxxxxxx, Xxxxxxx, XX 00000-0000, (the "Employee").
RECITALS:
a. The Company's Board of Directors has directed the liquidation or sale of
the Company.
b. Employee has been an employee of the Company and such relationship will
terminate upon the anticipated liquidation of the Company.
c. Employee and Company previously entered into that certain Employee
Proprietary Information Agreement, dated March 31, 1999 (the "Proprietary
Information Agreement").
d. Employee recognizes that he is still bound by certain provisions of the
Proprietary Information Agreement that survive his termination, including
but not limited to, the restrictions regarding the nondisclosure of
Confidential Information (as defined in the Proprietary Information
Agreement) and the non-solicitation of Company employees.
e. The parties hereto desire to set forth herein their understandings and
agreements in connection therewith.
NOW THEREFORE, for and in consideration of the mutual promises and covenants
contained herein, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree
as follows:
1) Recitals. The above Recitals are true and correct and are
incorporated herein by reference.
2) Certain Definitions.
a) "Cause" as used in this Agreement shall mean: (i) illegal acts
(other than minor traffic violations or misdemeanors), including,
but not limited to, theft, fraud or embezzlement; (ii) violation of
published written policies of the Company or violation of any
confidentiality or proprietary information agreement with the
Company, in each case deemed to be material to the Company; and
(iii) irresponsible unauthorized acts of a willful nature in the
performance of your duties, in each case deemed to be material to
the Company, or repeated failure to follow the reasonable
directions of the Board of Directors of the Company. Prior to a
termination for "Cause", the Company shall provide to Employee
written notice of the Company's reasons it believes that it has
Cause to terminate Employee's employment and an opportunity to cure
such Cause to the reasonable satisfaction of the Company.
b) "Liquidation" as used in this Agreement shall mean the date at
which Employee's services are determined to be no longer required
by the Chief Executive Officer.
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c) "Change of Control" as used in this Agreement shall mean: (i) any
liquidation, dissolution or winding up of the Company, whether
voluntary or involuntary, (ii) any transaction or series of related
transactions (including, without limitation, any reorganization,
merger or consolidation) which will result in the Company's
stockholders immediately prior to such transaction not holding (by
virtue of such shares or securities issued solely with respect
thereto) at least fifty percent (50%) of the voting power of the
surviving or continuing entity, or (iii) a sale of all or
substantially all of the assets of the Company, unless the Company's
stockholders immediately prior to such sale will, as a result of
such sale, hold (by virtue of securities issued as consideration for
the Company's sale) at least fifty percent (50%) of the voting power
of the purchasing entity.
d) "Continuous Employment" as used in this Agreement shall mean service
as a common law employee or as a member of the Board of Directors
and the absence of any interruption or termination of such service
with the Company or any parent or subsidiary which now exists or
hereafter is organized or acquired by the Company or any Successor.
Continuous Employment with the Company or its Successor shall not be
considered interrupted in the case of sick leave, military leave,
vacation, or any other leave of absence approved by the Company or
its Successor or in the case of transfers between locations of the
Company or between any parent or subsidiary, or successor thereof.
3) Separation of Employment. Employee will separate his employment with
Company upon Liquidation.
4) Payment to Employee. As long as the Employee remains in the Continuous
Employment of the Company, upon or prior to, any Liquidation or Change
of Control or termination of the Employee other than for Cause, the
Company and any Successor shall be obligated to pay to the Employee a
bonus in cash in the amounts set forth below (the "Bonus"):
a) You will receive Severance Benefits per the provisions of your
Amended Offer of Employment; dated July 20, 1999, provided however
that the length of the term for payment of such Severance Benefits
will be extended for one hundred eighty-two (182) days to two
hundred fifty-five (255) days; and
b) Vacation earned but unused through Employee's termination date,
plus vacation that would have been earned during the sixty (60) days
following Employee's termination date in a lump sum payment, less
applicable (FICA, Medicare and federal tax withholding) taxes; and
c) The Retention Incentive per the provisions of the Retention
Incentive Agreement between Employee and Triton dated August 20,
2001.
Employee understands that these payments will be provided to him, if
and only if he executes and otherwise complies with all terms of this
Release. Payment will be made in biweekly installments in the amount of
the Employee's then current biweekly salary payment at the time of any
Liquidation or Change of Control or termination of the Employee other
than for Cause, except in the instances as described in Section 12, in
which case payment of any balance of Bonus due to the Employee shall
be made in accordance with Section 12.
5) Employee Breach and Bonus Repayment. Employee understands that
should he breach this Release in whole or in part, or otherwise fail
to faithfully execute the terms of this Release (including but not
limited to confidentiality and non-disparagement), Employee agrees
that any payment received is thereupon immediately due and payable to
Company.
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6) Release by Employee. In consideration of the good and valuable
consideration extended hereunder, Employee on his own behalf and on
behalf of his spouse, heirs, executors, administrators, legal
representatives, successors, assigns or others acting on his behalf,
hereby releases and forever discharges Company and its directors,
officers, shareholders, employees, agents, managers, and any parent,
affiliate or successor entity (collectively referred to as "Released
Parties," said term to include Company), from any and all claims,
debts, demands, actions, causes of action, suits, costs, damages,
expenses, obligations and other liabilities whatsoever, whether
arising out of Employee's employment, separation from employment or
otherwise, and specifically including actions to or for equitable or
declaratory relief of any kind, reinstatement, back pay, damages or
compensatory relief of any kind, punitive or liquidated damages of any
kinds, costs, attorneys' fees or interest available:
a) Under any federal law, statute rule or regulation, including but
not limited to, federal employment laws such as the Civil Rights
Act of 1964, as amended by the Civil Rights Act of 1991(42 U.S.C.
ss. 2000e-2000e-17); the Civil Rights Act of 1866, as amended (42
U.S.C. ss. 1981-1988); the Fair Labor Standards Act of 1938, as
amended (29 U.S.C. ss. 201-219); the Equal Pay Act of 1963 (29
U.S.C. ss. 206(d)(1)); the Americans With Disabilities Act of 1990
(42 U.S.C. ss. 12101-12213); and the Family and Medical Leave Act
of 1993 (29 U.S.C. ss. 2601-2654); and
b) Under any employment law, statute, rule or regulation of the State
of Florida, including but not limited to the Florida Civil Rights
Act of 1992 (Chapter 760, Florida Statutes) and any and all claims
for discrimination, including age discrimination under that law,
or any other state of the United States of America dealing with
fair employment practices and non-discrimination; and
c) For any common law claims or claims founded in tort (including
negligence) for wrongful discharge, negligence, negligent hiring,
negligent training or negligent supervision, assault and battery,
invasion or privacy, false imprisonment, intentional infliction of
emotional distress, defamation, libel, slander, breach of
contract, (oral, written, or implied), or any other equitable
basis of action; and
d) That Company dealt with Employee unfairly or in bad faith.
Employee acknowledges that this release and waiver is given in
exchange for the consideration made under this Release and is more
than Company would pay under its normal policies and procedures and
that, absent this Release, he is not entitled to receive the payments
or other consideration set forth herein.
Without limiting the generality of the foregoing, Employee does not
release any claims or rights with regards to: w) his rights to amounts
in any 401(k), pension, profit sharing, or similar benefit fund; x)
any rights which Employee or his eligible dependents may have to
continue health insurance coverage pursuant to COBRA or any other
applicable law; y) indemnification for acts, errors, and/or omissions
during the course of his employment by the Company to the extent
provided by the Company By-Laws, its practices or policies, or
applicable law to current or former (as the case may be) executive
employees and officers generally; and z) coverage under any errors or
omissions or similar insurance coverage purchased or provided by the
Company to insure the acts, errors and/or omissions of its management
employees and/or officers generally.
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7) Release by Company. Company, on its own behalf and on behalf of the
Released Parties, hereby releases and forever discharges Employee and
his spouse, heirs, executors, administrators, legal representatives,
successors, assigns or others acting on his behalf from any and all
claims, debts, demands, actions, causes of action, suits, costs,
damages, expenses, obligations and other liabilities whatsoever,
whether arising out of Employee's employment, separation from
employment or otherwise, and specifically including actions to or for
equitable or declaratory relief of any kind, reinstatement, back pay,
damages or compensatory relief of any kind, punitive or liquidated
damages of any kind, costs, attorneys' fees or interest available
whether under any law, statute, ordinance, regulation or common law.
Company acknowledges that it has provided this Release knowingly and
voluntarily.
8) No Pending or Future Claims. Employee represents that he has no suits,
claims, charges, complaints or demands of any kind whatsoever currently
pending against any Released Party with any local, state, or federal
court of any governmental, administrative, investigative, civil rights
or other agency or board based upon events occurring prior to and
including the date of the execution of this Release. Employee further
agrees, consistent with applicable law, that he will not initiate or
institute any claim, charge, action, or legal proceeding against
Released Parties regarding his employment with Company.
9) Repayment of Bonus if Employee Makes Claim. If Employee violates this
Release by instituting any claim, charge, action or legal proceeding
against Company or against Released Parties, or any one of them, other
than a claim arising under this Release, he agrees that he must, and
will, return all of the additional consideration he has received under
this Release. Employee further waives the right to receive any further
compensation or damages other than set forth herein if he institutes a
claim, charge, action or legal proceeding against Released Parties, or
any one of them, or if an agency or entity sues or brings any action
against Released Parties, or any one of them, on his behalf, other than
a claim arising under this Release.
10) No Waiver of ADEA. Notwithstanding anything contained in this Release
to the contrary, Employee understands that this Release does not waive
any ADEA claim that he may have which arises after the date he signs
this Release. Employee further understands that this Release is not
intended to affect the rights and responsibilities of the United States
Equal Employment Opportunity Commission to enforce the ADEA. Further,
nothing contained herein shall limit Employee from filing a lawsuit for
the purpose of enforcing Employee's rights under this Release.
11) Company's and Successor's Obligations. Prior to or simultaneous with
any Change of Control, the Company shall cause the surviving
corporation or any successor-in-interest pursuant to the terms of the
Change of Control or any assignee (referred to as "Successor") to
assume all of Company's obligations under this Agreement (including,
but not limited to, financial obligations) in the same manner and to
the same extent that the Company would be required to perform. If
required by the nature of the transaction, Successor will agree, in
writing (either in a separate writing or as part of the acquisition
documents), to perform under this Agreement. Failure of the Company to
cause such assumption and performance by the Successor shall be a
breach of this Section 11 and will entitle the Employee to the remedies
set out in Section 12 below. Once a Change of Control occurs resulting
in a Successor, then any reference in this Agreement to the Company
shall apply to Successor as if Successor had originally entered into
this Agreement.
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12) Employee's Remedies Upon Breach of Section 11 by Company or
Successor. In the event the Company does not cause an assumption and
performance by Successor pursuant to Section 11, then the Company
shall make all payments due under and provide all benefits described
in this Agreement at closing. Employee shall be free to terminate
Employee's employment with Successor at any time as if the termination
were a termination of the Employee without Cause by Company or its
Successor and the full amount of any balance of Bonus payment due to
Employee in accordance with Section 4 shall be immediately paid to
Employee.
13) Attorney's Fees. In the event the Company or its Successor fails to
perform, fails to make any payments due or is otherwise in breach of
this Agreement and as a result the Employee retains counsel in order
to enforce this Agreement, the Company or its Successor shall pay all
fees and costs incurred by Employee's counsel in enforcing the terms
of this Agreement.
14) Review and Revocation Period. Employee represents that he has read
this Release and carefully and fully understands all of its
provisions. HE ACKNOWLEDGES THAT HE HAS BEEN ADVISED TO CONSULT WITH
AN ATTORNEY AND TO THOROUGHLY DISCUSS ALL ASPECTS OF THIS RELEASE WITH
LEGAL COUNSEL, PRIOR TO HIS SIGNING THIS RELEASE. Employee understands
that said consultation is at his expense. Employee also understands
that he may revoke this Release during the seven (7) day period
following the date on which he signs this Release, and that this
Release shall not become effective or enforceable until after the
expiration of this seven (7) day revocation period. Employee may
revoke by notifying the Company's CEO, in writing, at the Company's
corporate offices, 0000 Xxxxx Xxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000.
a) The revocation must be received by Company's CEO on or before the
expiration of the seven (7) day period. ACCORDINGLY, NO PAYMENTS
UNDER THIS RELEASE WILL BE PAID UNTIL AFTER THE REVOCATION PERIOD
HAS EXPIRED.
15) Confidentiality, Nondisclosure and Non-disparage. The terms of this
Release are highly confidential and the confidentiality provisions are
a key element of Company's willingness to enter into this Release. The
parties hereby agree that this Release, and the terms and conditions
reflected herein, shall be kept confidential and shall not be
disclosed to any third party, including any person, group, media or
entity of any kind whatsoever. The only exceptions are that: a) either
party may release it as required by law or the order of a court or
government agency; b) Employee may provide it in confidence to
Employee's spouse, attorney, and/or tax advisor; and c) Company or the
Company's successor may provide it to its attorney, accountant, or any
employee with a legitimate business reason to know the contents of the
Agreement. Without the confidentiality requirements set forth herein,
the parties would not have entered into the Release. Neither party
shall disparage nor otherwise make any negative comments or provide
any negative information about the other party, including not saying
anything unflattering or derogatory about the other party's management
and business practices, the Company's products or services, or about
any individual associated with Company (including directors or
officers), provided however that nothing in this Section 15 would
limit an individual's testimony or other statement under oath as
required by law. The only exception to this paragraph is that this
Release may be used as evidence in a subsequent proceeding in which
any of the parties allege a breach of the Release. If this Release must
be filed in any court proceeding, the person seeking to file it will
seek to do so under seal, subject to the court's approval.
16) No Admission of Liability. It is expressly understood and agreed that
this Release shall not be construed as, or be deemed to be, evidence
of an admission or concession of any fault or liability or damage
whatsoever on the part of either of the parties hereto.
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17) Governing Law; Enforcement of Release. This Release shall be governed
and enforced in accordance with the laws of the State of Florida. The
Florida courts shall have exclusive jurisdiction over the enforcement
of this Release. Venue shall lie exclusively in the federal and state
courts in Orlando, Orange County, Florida.
18) Binding Effect. All of the terms, covenants, warranties and
representations contained herein shall be binding upon the parties,
and their respective heirs, all persons or entities legally
responsible for the actions of the parties hereto, assigns, officers,
directors, agents, principals, successors, employees, shareholders and
predecessors in interest of the parties to the full extent permitted
by law.
19) All Claims, Complete Agreement, Modification. This Release is in
settlement of all claims that Employee now has or ever had or may
claim against Released Parties, consistent with applicable law. This
Release constitutes the entire agreement between the parties and
supersedes all prior agreements, oral or otherwise, with respect to
the subject matter hereof. This Release is not intended to and does
not relieve the Employee from complying with the terms of the
Proprietary Information Agreement that survive Employee's termination
of employment, including, but not limited to, the restrictions
regarding the nondisclosure of Confidential Information (as defined in
the Proprietary Information Agreement) and the non-solicitation of
Company's employees. Neither this Release nor any term hereof may be
changed, waived, discharged or terminated orally, except by an
instrument in writing signed by the party against which enforcement of
the change, waiver, discharge or termination is sought.
20) Headings and Gender. The headings in this Release are for purposes of
reference only and shall not limit or otherwise affect the meaning
hereof. Unless the context otherwise requires, references in this
Release to any gender shall be construed to include all other genders,
references in the singular shall be construed to include the plural,
and references in the plural shall be construed to include the
singular.
21) Opportunity to Consider and Confer. Employee acknowledges that he has
had the opportunity to read, study, consider, and deliberate upon this
Release, has been given the opportunity to consult with counsel or an
otherwise competent representative, and he fully understands and is in
complete agreement with all terms of this Release and that he is
entering into the Release of his own free will. In executing this
Release Employee agrees that has not relied on any representation or
statement not set forth in this Release.
22) Severability. If any clause or provision in this Release is found to
be void, invalid, or unenforceable, it shall be severed from the
remaining provisions and clauses that shall remain in full force and
effect.
23) Signing of Release. The undersigned agree that prior to signing they
have read this document consisting of seven (7) pages (including
signature page).
TRITON NETWORK SYSTEMS, INC. WANTS EMPLOYEE TO CONSULT AN ATTORNEY BEFORE
EMPLOYEE SIGNS THIS RELEASE. EMPLOYEE SHOULD THOROUGHLY UNDERSTAND THE EFFECTS
OF THE RELEASE BEFORE SIGNING IT.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Release as of the
date first written above with the intent be legally bound hereby.
ACCEPTANCE OF RELEASE
"Company"
TRITON NETWORK SYSTEMS, INC. a Florida corporation.
By:
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Xxx Xxxxx
CEO
"Employee"
By: /s/ Xxxxxxx X.X. Xxxxxxxx
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Xxxxxxx X.X. Xxxxxxxx
XX & General Manager
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