GENERAL RELEASE AND SEPARATION AGREEMENT
Exhibit
10.2
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”),
Xxxxx
Xxxxxx (“Executive”),
and
solely for the purposes of Section
4
hereof,
Xxxxxxx X. Xxxxxxx, an individual (“Mindich”).
WHEREAS,
the
Company and Executive are parties to that certain Employment Agreement dated
as
of April 2, 2007, 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
the Company and Executive;
WHEREAS,
pursuant to the Employment Agreement, the Company has elected to pay a portion
of Executive’s salary in shares of common stock of the Company (“Compensation
Shares”),
which
Compensation Shares have not, prior to the Effective Date, been issued to
Executive;
WHEREAS,
as of
the Effective Date, Executive is the holder of 1,698,877 restricted stock units
issued pursuant to the Company’s 2007 Equity Incentive Plan, each of which, upon
exercise, entitles Executive to one share of the Company’s common stock (the
“RSUs”);
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; Resignation.
The Employment Agreement is hereby terminated as of the Effective Date and
shall be of no further force and effect thereafter, except that the following
provisions shall survive: Sections 5 and 16. In addition, Executive hereby
resigns from any and all offices and positions held by him with the Company
and
its subsidiaries, other than his position as a member of the Company’s board of
directors.
2. Payment.
In
consideration for the General Releases in Section
3(a)
hereof,
and as full, complete, and final payment for any and all obligations owing
by
the Company to Executive under the Employment Agreement and with respect to
his
employment by the Company, including, but not limited to, (a) any and all stock
(including the Compensation Shares), restricted stock units (including the
RSUs), options, or other equity rights, and (b) wages, commissions, bonuses,
vacation pay, expenses, fees, or other compensation or payments of any kind
or
nature:
1
Exhibit
10.2
| a. |
So
long as Executive has not rescinded this Agreement as of the 8th
calendar day following the Effective Date (the “Payment
Date”),
the Company shall pay, or cause to be paid, to Executive on the Payment
Date the sum of Thirty Two Thousand and 00/100 Dollars ($32,000.00),
less
FICA taxes required to be withheld by applicable law (the “Cash Severance
Payment”).
Executive hereby instructs the Company not to withhold any other
amounts
under federal or state law, and hereby agrees that he shall solely
be
responsible for such amounts and shall pay all such amounts when
due;
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| b. |
The
Company shall provide, or cause to be provided to Executive (at no
charge
to Executive), medical and dental benefits substantially similar
to those
currently provided to Executive, for a period of 12 months from the
Effective Date, all in accordance with the Company’s policies and the
terms of the applicable plan documents;
and
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| c. |
The
Company shall issue to Executive, promptly following the Effective
Date,
3,183,727 shares of common stock of the Company, which shares Executive
acknowledges and agrees are the only shares or other equity securities
or
rights that will be owed to him by the Company as of the Effective
Date.
|
3. 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 the Employment Agreement and 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.
2
Exhibit
10.2
(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.
4. Non-Disparagement.
Executive, on the one hand, and the Company and Mindich, on the other hand,
hereby agree not to hereafter intentionally disparage the other, or any of
the
Company’s current or former officers, directors, or employees. As used in this
Section
4,
“disparage” means any statement or representation that, directly or by
implication, would reasonably be expected to harm the business reputation or
business opportunities of the other party.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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
10.2
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/ Xxxxx
Xxxxxx
Xxxxx
Xxxxxx
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By:
/s/
Xxxxxxx X.
Xxxxxxx
Xxxxxxx
X. Xxxxxxx
Director
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| XXXXXXX X. XXXXXXX (solely with respect to Section 4 of the Agreement) | ||
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/s/ Xxxxxxx X.
Xxxxxxx
Xxxxxxx
X. Xxxxxxx
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