SEPARATION AGREEMENT AND GENERAL RELEASE
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This Separation Agreement and General Release (hereinafter "Separation
Agreement") is entered into by and between Xxxx Xxxxxxxxxx (hereinafter "XX.
XXXXXXXXXX"), and YDI Wireless, Inc. (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, 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 shall not include
XX. XXXXXXXXXX in any capacity.
WHEREAS, XX. XXXXXXXXXX and YDI disagree on whether, in light of his
resignation XX. XXXXXXXXXX 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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For purposes of this Separation Agreement, the parties hereby agree that
XX. XXXXXXXXXX'x employment by YDI ceased on April 3, 2003. Nothing in this
Separation Agreement shall be construed as extending XX. XXXXXXXXXX'x employment
beyond April 3, 2003.
SECOND: COMPENSATION
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XX. XXXXXXXXXX has already received FTO payments. In exchange for XX.
XXXXXXXXXX'x execution of this Separation Agreement, YDI will waive any claim
relating to the FTO payments and further agrees to pay XX. XXXXXXXXXX and his
counsel One Hundred Fifty Thousand and 00/100 ($150,000.00) Dollars, minus
appropriate taxes, in a check made payable to "XXXX XXXXXXXXXX AND XXXXXX, XXXX
& XXXXXXX, HIS ATTORNEYS." Payment shall be made no later than seven days
following the expiration of the Rescission period described below.
Said amount represents any and all moneys that shall be paid to XX.
XXXXXXXXXX. It represents 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 other costs.
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SEPARATION AGREEMENT BETWEEN XXXX X. XXXXXXXXXX AND YDI WIRELESS, INC.
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THIRD: STOCK OPTIONS AND WARRANTS
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XX. XXXXXXXXXX'X YDI stock options and warrants shall be governed by the
Incentive Stock Option and Non-Qualified Stock Option Agreements between the
parties, as amended by the parties' January 24, 2003 Amendment to Option
Agreements, and by Warrants W-12, W-25, W-99-11 and W-99-22 as adjusted for the
merger between YDI and Telaxis Communications Corporation, which shall remain in
full force and effect in accordance with their terms.
FOURTH: COMPLETE RELEASE BY XX. XXXXXXXXXX
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In exchange for the mutual promises contained herein and the payment made
to XX. XXXXXXXXXX on the disputed claim, XX. XXXXXXXXXX, 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, rights of contribution, insurance,
and/or indemnification, 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. XXXXXXXXXX'x employment with YDI or his separation from that employment or
his service as a member of the board of directors of YDI's predecessor,
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. XXXXXXXXXX'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 XXXXXXXXXX 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
and XX. XXXXXXXXXX does not relinquish any rights to exercise his current stock
options. This release shall not be construed to impair XX. XXXXXXXXXX'x right to
enforce the terms of this Separation Agreement.
FIFTH: RELEASE BY YDI
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In exchange for the mutual promises contained herein, YDI irrevocably and
unconditionally releases XX. XXXXXXXXXX and his administrators, executors,
successors, heirs, attorneys, representatives, agents and assigns from all
claims, controversies, liabilities,
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SEPARATION AGREEMENT BETWEEN XXXX X. XXXXXXXXXX AND YDI WIRELESS, INC.
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demands, causes of action, debts, obligations, promises, acts, agreements,
rights of contribution, insurance, and/or indemnification, 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 it has had or may have as of the execution of this
Agreement, based on XX. XXXXXXXXXX'x separation from employment with YDI and the
benefits that he received as a result of such separation, including any claim
that XX. XXXXXXXXXX received FTO payments in excess of that which he was
entitled to receive. This Release shall not be construed to impair YDI's right
to enforce the terms of this Agreement.
YDI acknowledges and represents that, as of the date of this Agreement,
including but not limited to information held by the officers of YDI and facts
learned by YDI through the due diligence performed in connection with the merger
between YDI and Telaxis Communications Corporation, it has no knowledge of any
facts that would give rise to any cause of action by YDI against XX. XXXXXXXXXX.
YDI further acknowledges and represents that it has no current plans to pursue
any cause of action against XX. XXXXXXXXXX.
SIXTH: NO LAWSUITS OR CLAIMS
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XX. XXXXXXXXXX represents that he has not, and will not institute a lawsuit
against YDI based on any claims or rights that are released by him in Paragraph
Four above.
XX. XXXXXXXXXX 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. XXXXXXXXXX may subsequently file with the Equal
Employment Opportunity Commission ("EEOC"), the Massachusetts Commission Against
Discrimination ("MCAD") or any other agency. XX. XXXXXXXXXX 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.
SEVENTH: ADEQUATE CONSIDERATION
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XX. XXXXXXXXXX agrees that the compensation and benefits set forth herein
constitute adequate and ample consideration for the rights and claims he is
waiving under this Separation Agreement.
XX. XXXXXXXXXX further agrees that such consideration shall be in lieu of
any other compensation or benefits to which XX. XXXXXXXXXX may be entitled, or
may claim to be entitled.
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SEPARATION AGREEMENT BETWEEN XXXX X. XXXXXXXXXX AND YDI WIRELESS, INC.
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EIGHTH: RESIGNATION ACCEPTED
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For purposes of this Separation Agreement, the parties hereby agree that
XX. XXXXXXXXXX resigned from his position as a YDI employee effective April 3,
2003, and YDI accepts his resignation effective on said date. XX. XXXXXXXXXX
does not now, and agrees that he will not in the future, seek re-employment with
YDI. XX. XXXXXXXXXX acknowledges and recognizes that he is not now and will not
ever in the future be eligible for such employment and that this is appropriate
under the circumstances. It is understood and agreed that having voluntarily
agreed, XX. XXXXXXXXXX is not entitled to unemployment compensation insurance in
addition to the benefits contained herein.
NINTH: COOPERATION
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In exchange for the consideration XX. XXXXXXXXXX shall receive under this
Separation Agreement, XX. XXXXXXXXXX specifically agrees to fully cooperate with
YDI concerning business or operational issues that may arise following the
execution of this Separation Agreement.
TENTH: NON-DISPARAGEMENT
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XX. XXXXXXXXXX agrees that he will engage in no conduct which is either
intended to or could reasonably be expected to harm YDI in the operation of its
business. XX. XXXXXXXXXX further agrees he will not take any action, legal or
otherwise, which might embarrass, harass or adversely affect YDI or which might
in any way work to the detriment whether directly or indirectly of YDI. In
particular and by way of illustration not limitation, XX. XXXXXXXXXX agrees that
he will not directly or indirectly contact members of the Board of Directors,
the press or media, any federal, state or local governmental agency, YDI's
stockholders, officers, managers or employees, customers or any entity that has
a business relationship with YDI in order to disparage the good morale or
business reputation or business practices of YDI or any of its current and
former officers, directors, manages or employees. While nothing in this
paragraph precludes XX. XXXXXXXXXX from providing truthful testimony in a legal
proceeding in which he is called to testify, XX. XXXXXXXXXX agrees to provide
YDI with advance notification if he is called to testify in any judicial or
legal proceeding.
YDI agrees not to make any written or oral disparaging statement about XX.
XXXXXXXXXX or to refer negatively to YDI's association with XX. XXXXXXXXXX. YDI
further agrees it will take no action which might embarrass XX. XXXXXXXXXX. In
particular and by way of illustration not limitation, YDI agrees that it will
not directly or indirectly contact XX. XXXXXXXXXX' employers, the press or
media, any federal, state or local governmental agency, YDI's stockholders,
officers, managers or employees, customers or any entity that has a business
relationship with XX. XXXXXXXXXX in order to disparage the good morale or
business reputation or business practices of XX. XXXXXXXXXX. While nothing in
this paragraph precludes YDI from providing truthful testimony in a legal
proceeding in which he is called to testify, YDI agrees to provide XX.
XXXXXXXXXX with advance notification if he is called to testify in any judicial
or legal proceeding.
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SEPARATION AGREEMENT BETWEEN XXXX X. XXXXXXXXXX AND YDI WIRELESS, INC.
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ELEVENTH: CONFIDENTIALITY
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YDI and XX. XXXXXXXXXX recognize and acknowledge that YDI will need to make
this document and its contents public as a matter of securities laws and
regulations.
TWELFTH: REVIEW AND CONSIDERATION PERIOD; REVOCATION
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XX. XXXXXXXXXX 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 that advice. XX. XXXXXXXXXX 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. XXXXXXXXXX
further understands and agrees revocation shall only be effective upon the
receipt of a written notice to YDI within seven (7) days after XX. XXXXXXXXXX
signs this Separation Agreement.
THIRTEENTH: 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 Massachusetts Superior Court, whether in addition to or
in lieu of a court proceeding, to prevent a violation of this Agreement.
FOURTEENTH: 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.
FIFTEENTH: 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. With the exception of the Incentive Stock
Option and Non-Qualified Stock Option Agreements (as amended) referenced in
Paragraph Three herein, the Warrants referenced in Paragraph Three herein, and
the September 18, 2000 Indemnification Agreement between YDI and XX. XXXXXXXXXX,
each of which shall remain in full force and effect in accordance with their
terms, YDI and XX. XXXXXXXXXX agree that this Separation Agreement constitutes
their entire final understanding and agreement with respect to the subject
matter hereof and supersedes
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SEPARATION AGREEMENT BETWEEN XXXX X. XXXXXXXXXX AND YDI WIRELESS, INC.
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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. XX. XXXXXXXXXX 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 Separation Agreement is governed by the laws of the
Commonwealth of Massachusetts.
SIXTEENTH: MUTUAL PREPARATION
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YDI and XX. XXXXXXXXXX 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. XXXXXXXXXX
and their counsel and therefore the rule of contract interpretation of
construing ambiguities against the drafter shall have no application to this
Separation Agreement.
SEVENTEENTH: PROPERTY OF YDI
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The parties agree and acknowledge that XX. XXXXXXXXXX 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 XX. XXXXXXXXXX or by others, but excludes anything owned by
XX. XXXXXXXXXX individually.
EIGHTEENTH: ACKNOWLEDGMENT
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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. XXXXXXXXXX AND YDI ALSO ACKNOWLEDGE THAT THEY ENTER INTO THIS
SEPARATION AGREEMENT VOLUNTARILY, WITH FULL KNOWLEDGE OF ITS SIGNIFICANCE, AND
WITHOUT PRESSURE OR COERCION. XX XXXXXXXXXX FURTHER ACKNOWLEGES THAT HE HAS HAD
SUFFICIENT TIME TO CONSIDER THIS AGREEMENT AND CONSULT WITH AN ATTORNEY OF HIS
CHOOSING PRIOR TO EXECUTING THIS AGREEMENT.
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SEPARATION AGREEMENT BETWEEN XXXX X. XXXXXXXXXX AND YDI WIRELESS, INC.
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IN WITNESS WHEREOF, YDI and XX. XXXXXXXXXX have executed this Separation
Agreement and General Release.
YDI Wireless, Inc.
By: /s/ Xxxxxx Xxxxxxxxxx /s/ Xxxx X.Xxxxxxxxxx
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Xxxxxx Xxxxxxxxxx, Chief Executive Officer Xxxx X.Xxxxxxxxxx
Dated:October 1, 2003 Dated:September 23, 2003
Witness: Witness:
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