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Exhibit 10.23
AGREEMENT AND GENERAL RELEASE
CONSULT WITH A LAWYER BEFORE SIGNING THIS AGREEMENT AND RELEASE. BY SIGNING THIS
AGREEMENT, YOU GIVE UP AND WAIVE IMPORTANT LEGAL RIGHTS.
I, Xxxxxx Xxxxxxx, of 000 Xxxxxxxxxxx Xxxxxx, Xxxx 0, Xxxxxx, XX 00000,
understand and, of my own free will, enter into this AGREEMENT AND GENERAL
RELEASE ("AGREEMENT" or "Agreement") for the benefit of Unisphere Solutions,
Inc., a Delaware corporation with principal offices at Xxx Xxxxxxxxx Xxxxx,
Xxxxxxxxxx, XX 00000, and its subsidiaries, (hereinafter referred to
individually and collectively as "UNISPHERE"), and in consideration of the
payments and benefits described herein, agree as follows:
1. My employment with UNISPHERE will be terminated on June 1, 2000 (the
"Termination Date"). My last day actively at work with UNISPHERE will be
June 1, 2000. I hereby resign from any corporate office or official
position which I hold with UNISPHERE or any subsidiary of UNISPHERE
effective as of the Termination Date.
2. I hereby acknowledge and agree that, in accordance with the terms of
UNISPHERE's Stock Incentive Compensation Plan (the "Plan"), all options
previously awarded to me under that Plan shall be cancelled and forfeited
by me upon termination of my employment on the Termination Date. In
consideration of my entering into this Agreement and in further
consideration of my agreement to forfeit any and all option awards
previously granted to me, I will be eligible to receive an amended
non-qualified stock option award under the Plan for a total of 16,666
shares (on a post-split basis) of common stock of Unisphere Solutions, Inc.
with immediate vesting of those 16,666 options upon the Effective Date of
this Agreement (as set forth in Paragraph 13 hereof) and a one (1) year
period following the Termination Date to exercise the same, at an exercise
price of $9.30 per share.
3. I understand that, except as provided in Paragraph 2 of this AGREEMENT,
after the Termination Date, I will have no further rights to any other
compensation or benefits from UNISPHERE or any of its subsidiaries,
including, but not
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limited to, any rights to or under any salary, bonus, compensation,
milestone, incentive, retention or stock option plans of UNISPHERE or its
subsidiaries, or vacation, severance, pension, medical, dental, life, short
term disability, long term disability or other insurance or benefits of any
kind.
4. I understand UNISPHERE will not be required to provide the payments and
benefits set forth in Paragraph 2 of this AGREEMENT unless and until I sign
this AGREEMENT and this AGREEMENT becomes effective pursuant to Paragraph
18 hereof.
5. I understand that this AGREEMENT does not constitute an admission by
UNISPHERE or myself of any (a) violation of any statute, law or regulation;
(b) breach of contract, actual or implied; or (c) commission of any tort.
6. In consideration for the payments and benefits set forth in Paragraph 2 of
this AGREEMENT, I do, on behalf of myself, my legal representatives, heirs,
executors, administrators, successors and assigns, agree and promise not to
xxx and to forever release UNISPHERE, its affiliates, subsidiaries, and
divisions and their respective predecessors, successors and assigns and
their current and former directors, representatives, agents, employees,
officers and shareholders, both individually and in their official
capacities, (the "Releasees") from any and all claims, actions, causes of
action, suits, demands, liabilities, complaints, contracts, agreements,
promises and charges of every kind, nature and description, whenever they
arose and whether in law or in equity, which may by law be waived
including, but not limited to, claims related to my employment with
UNISPHERE, the compensation, benefits, terms and conditions of my
employment with UNISPHERE, or the cessation of my employment with UNISPHERE
as well as any application for re-employment that has been made prior to
this date with UNISPHERE. This release includes but is not limited to any
claim, charge or action arising under any federal, state or local
discrimination statute, which include, but are not limited to, Title VII of
the Civil Rights Act of 1964 and 1991, The Age Discrimination in Employment
Act, the Rehabilitation Act of 1973, the Older Workers Benefit Protection
Act, the Massachusetts Fair Employment Practices Act, the Fair Labor
Standards Act, the Americans with Disabilities Act, the Occupational Health
and Safety Act, the Family and Medical Leave Act, and the National Labor
Relations Act. This release also includes
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any other federal, state, county, city or local law, statute, ordinance,
regulation, public policy, contract or tort law having any bearing
whatsoever on the terms and conditions of my employment or the cessation of
that employment, including, but not limited to, those laws relating to
discrimination on the basis of age, sex, race, national origin, religion,
marital status, sexual orientation or payment of wages, or under any other
theory of law or contract, including but not limited to, fraud, wrongful
termination or intentional or negligent infliction of emotional or mental
distress, libel or slander. I intend to waive and release any rights I may
have under these and other laws which I ever had, now have or shall have as
of the date of this Agreement, but I do not intend to nor am I waiving any
rights or claims that may arise after the date I sign this AGREEMENT, or
that may arise from UNISPHERE's breach of this AGREEMENT.
7. I understand and acknowledge that the payments and benefits set forth under
this AGREEMENT completely satisfy any obligations which UNISPHERE may have
towards me under the Plan.
8. I acknowledge and agree that nothing in this AGREEMENT shall be deemed to
reduce in any way the obligations I have under any non-competition
agreement, employee patent and secrecy agreement or confidentiality
agreements which apply to me.
I agree to strictly maintain the confidentiality of the terms of this
AGREEMENT and shall not disclose any information relating thereto to any
individual other than my immediate family members, counsel and tax advisor.
9. This AGREEMENT shall be governed by and construed in accordance with the
laws of the Commonwealth of Massachusetts without regard to principles of
conflicts of law.
10. The terms and provisions of this AGREEMENT are severable. If one or more
provisions or terms of this AGREEMENT shall be ruled unenforceable,
UNISPHERE may elect to enforce the remainder of this AGREEMENT.
11. I understand that this AGREEMENT may not affect the rights and
responsibilities of the Equal Employment Opportunity Commission
("Commission") to enforce the Age Discrimination in Employment Act ("ADEA")
or be used to justify
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interfering with the protected right of an employee to file a charge under
the ADEA or participate in an investigation or proceeding conducted by the
Commission under the ADEA. I further understand that this AGREEMENT may not
affect the rights and responsibilities of the Massachusetts Commission
Against Discrimination ("MCAD") to enforce the laws of the Commonwealth of
Massachusetts prohibiting discrimination in employment or be used to
justify interfering with the protected right of an employee to file a
charge under such laws or participate in an investigation or proceeding
conducted by the MCAD under those laws.
12. I was given a copy of this AGREEMENT on or before the Termination Date. I
have had an opportunity to consult an attorney before signing it and was
given a period of at least twenty-one (21) days or until August 2, 2000 to
consider this AGREEMENT. In the event that I sign this Agreement within
less than twenty-one (21) days of receipt, I acknowledge that I did so
voluntarily and with knowledge of the opportunity to consider this
Agreement for the entire twenty-one (21) day period. I acknowledge that in
signing this AGREEMENT I have relied only on the promises written in this
AGREEMENT and not on any other promise made by UNISPHERE.
13. I have seven (7) days to revoke this AGREEMENT after I sign it by sending
written notice to UNISPHERE addressed as follows: Unisphere Solutions,
Inc., Xxx Xxxxxxxxx Xxxxx, Xxxxxxxxxx, XX 00000, Attention: Director of
Human Resources, which notice must be postmarked within seven (7) days of
my execution hereof. If the seventh day is a Saturday, Sunday or legal
holiday in Massachusetts, then the revocation period shall not expire until
the next following day which is not a Saturday, Sunday or legal holiday.
This AGREEMENT will not become effective or enforceable until ten (10) days
after UNISPHERE has received my signed copy of this AGREEMENT (the
"Effective Date") provided the revocation period expires without my having
exercised the right to revoke. No benefits will be made hereunder until the
revocation period has expired without exercise and the Agreement becomes
effective as set forth herein.
14. This AGREEMENT may not be modified or changed orally. Any modifications or
amendments must be in writing and signed by the parties hereto. The parties
agree that this Agreement represents the entire agreement of the parties
and supersedes all prior communications, agreements or
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understandings, either oral or written, if any, regarding the same.
15. Any and all disputes, complaints, controversies, claims and grievances
(excluding those specifically excepted herein) arising under, out of, in
connection with, or in any manner related to this AGREEMENT or the relation
of the parties hereunder shall be submitted to final and binding
arbitration to be conducted by the American Arbitration Association in
accordance with its Rules applicable to these types of disputes,
complaints, claims or grievances, by a neutral and impartial arbitrator
acceptable to me and UNISPHERE. If such an arbitrator has not been selected
by me and UNISPHERE within 60 days after AAA first provides a list of
eligible arbitrators, or within thirty days after the occurrence of a
vacancy, a neutral and impartial arbitrator shall be selected and appointed
by the American Arbitration Association, in accordance with its Rules.
Unless otherwise required under applicable law, the arbitration proceedings
shall be conducted in Boston, Massachusetts or in the city where the
principal place of business of UNISPHERE is situated at the date of this
AGREEMENT or a city mutually agreed to by the parties, and the procedural
rules of the place of arbitration shall apply. Arbitration proceedings
hereunder may be commenced by written notice from either party hereto to
the other party. Such proceedings and evidence shall be confidential. The
arbitrator shall have the power and the authority to make such decisions
and awards as he/she shall deem appropriate, including granting
compensatory damages and costs to the prevailing party (including fees of
the arbitrator, but excluding punitive, exemplary, consequential or special
damages, and attorneys' fees), and the granting or issuance of such
mandatory directions, prohibitions, orders, restraints and other
injunctions (other than any of the foregoing that would reestablish the
employment relationship formerly existing between UNISPHERE and myself)
that he/she may deem necessary or advisable directed to or against any of
the parties, including a direction or order requiring specific performance
of any covenant, agreement or provision of this AGREEMENT as a result of a
breach or threatened breach thereof. The cost of such arbitration shall be
borne equally by the parties except that each party shall bear its own cost
of attorneys' fees and expenses. Any decision and award of the arbitrator
shall be final, binding and conclusive upon all of the parties hereto and
said decision and award may be entered as a final judgment in any court of
competent jurisdiction. It is expressly agreed that
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arbitration as provided herein shall be the exclusive means for
determination of all matters as above provided and neither of the parties
hereto shall institute any action or proceeding in any court of law or
equity, state or federal, other than respecting enforcement of the
arbitrator's award hereunder. The foregoing sentence shall be a bona fide
defense in any action or proceeding instituted contrary to this AGREEMENT.
Notwithstanding the foregoing, nothing contained herein shall prevent or
restrain in any manner UNISPHERE from instituting an action or claim in any
court, or such other forum as may be appropriate to enforce the terms of
any employee patent and secrecy agreement, (or similar agreement relating
to UNISPHERE's confidential or proprietary business information or trade
secrets) to protect UNISPHERE's proprietary or confidential business
information or trade secrets, to enforce or protect UNISPHERE's patent,
copyright, trademark, trade name or trade dress rights, to redress claims
for product disparagement or trade libel, or to protect UNISPHERE's
reasonable business expectations or relations with third parties, or to
enforce the terms of any non-competition agreement. To the extent this
paragraph sets forth different procedures, or remedies, or provides the
arbitrator different powers than are set forth in the Rules of the American
Arbitration Association, the terms of this paragraph shall take precedence.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
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I HAVE BEEN ADVISED THAT I HAVE TWENTY-ONE (21) DAYS TO CONSIDER THIS AGREEMENT
AND I HAVE BEEN ADVISED IN WRITING TO CONSULT WITH AN ATTORNEY PRIOR TO
EXECUTION OF THIS AGREEMENT. I FURTHER UNDERSTAND THAT I MAY REVOKE THIS
AGREEMENT FOR A PERIOD OF SEVEN (7) DAYS FOLLOWING THE DAY I EXECUTE THE
AGREEMENT AND SAID AGREEMENT SHALL NOT BECOME EFFECTIVE OR ENFORCEABLE UNTIL THE
REVOCATION PERIOD HAS EXPIRED. I UNDERSTAND THAT THIS AGREEMENT WILL BE A
BINDING LEGAL DOCUMENT AND THAT MY SIGNATURE WILL COMMIT ME TO ITS TERMS. I HAVE
READ THIS AGREEMENT, AND I UNDERSTAND ALL OF ITS TERMS. HAVING ELECTED TO
EXECUTE THIS AGREEMENT, TO FULFILL THE PROMISES SET FORTH HEREIN, AND TO RECEIVE
THEREBY THE SUMS AND BENEFITS AS SET FORTH HEREIN, I FREELY AND KNOWINGLY, AND
AFTER DUE CONSIDERATION, VOLUNTARILY ENTER INTO THIS AGREEMENT INTENDING TO
WAIVE, SETTLE AND RELEASE ALL CLAIMS I HAVE, HAD OR MIGHT HAVE AGAINST
UNISPHERE.
/s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
Date: 7/31/00
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STATE OF FLORIDA )
:ss
COUNTY OF )
On this 31st day of July, 2000 before me personally came Xxxxxx Xxxxxxx to me
known and known to be the individual who executed the foregoing AGREEMENT AND
GENERAL RELEASE before me and duly acknowledged to me that he/she executed the
same as his/her free act and deed.
NOTARY PUBLIC * STATE OF FLORIDA /s/ XxXxx X. XxXxxxxx
OFFICIAL NOTARY SEAL ------------------------
XXXXX X. XXXXXXXX Notary Public
COMMISSION NUMBER My Commission Expires:
CC786911 Nov. 19, 2002
MY COMMISSION EXPIRES:
NOV. 19, 2002
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Unisphere Solutions, Inc.
BY: /s/ Xxx Xxxxxxx
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Date: 8/4/00
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