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EXHIBIT 10.44
Xxxxx 00, 0000
Xxx Xxxxxxx
00 Xxxxxxxx Xxxx
Xxxxxx, XX 00000
Dear Xx. Xxxxxxx:
The purpose of this letter is to set forth the agreement between you
and Viatel, Inc., its subsidiaries and their respective predecessors including,
without limitation, Destia Communications, Inc. (collectively hereinafter
referred to as "Viatel") regarding your resignation as an officer and employee
of Viatel. This Agreement supersedes any prior agreements among the parties,
including the Employment Agreement dated as of March 15, 2000 between you and
Viatel (the "Employment Agreement").
As we have discussed, in addition to your resignation (as described
above) Viatel desires to obtain your (i) release of all claims against Viatel,
(ii) a standstill agreement as provided herein, and (iii) agreement to maintain
the confidentiality of business information of Viatel of which you have become
aware during the course of your employment with Viatel. You have agreed to the
foregoing as consideration for Viatel's commitment to provide to you the
benefits set forth in paragraph 2 below. Based on these considerations, the
parties have mutually agreed as follows:
1. RESIGNATION. Effective as of April 7, 2001 (the "Effective Date"),
your resignation as an officer and employee of Viatel is accepted.
2. PAYMENTS AND BENEFITS. Viatel will provide you with the following
payments and benefits:
(a) SEVERANCE PAYMENTS. On the Effective Date, Viatel will pay you a
cash lump sum payment of $102,271.56 which will be wired to an account specified
by you in writing.
(b) SALARY/ACCRUED AND UNUSED VACATION. On the Effective Date, Viatel
shall pay you a lump sum cash payment equal to the amount, if any, of accrued
but unpaid base salary and vacation due to you pursuant to the Employment
Agreement and in accordance with Viatel's normal payroll policies. These amounts
shall be wired to an account specified by you in writing.
(c) BENEFIT PLAN PARTICIPATION. Viatel shall continue to maintain any
health, disability, accidental death and disability, business travel and life
insurance coverage and other health and benefit plans and programs to which you
were entitled immediately prior to the date hereof, and Viatel will continue to
pay the employer portion of the applicable premium through October 7, 2001,
provided, however, that any such benefits or payments shall cease if you receive
similar benefits from a subsequent employer. On or after such date, you may
elect COBRA coverage for up to an 18-month period or such longer period as
provided in COBRA, at your own expense. Except as otherwise provided herein, you
will not be entitled to any compensation or benefits (or any reimbursement
therefore) or to participate in any employee benefit programs of Viatel on or
after the date hereof.
(d) 401(K) RETIREMENT PLANS. You will be entitled to elect at any time
on or after the Effective Date, a distribution of any vested accrued benefits
under any 401(k), pension or other type of retirement plan sponsored or
maintained by Viatel in accordance with the terms of such plans.
(e) OPTIONS/RESTRICTED STOCK. Any options that are not vested on the
Effective Date shall be automatically forfeited and any options vested as of the
Effective Date shall remain exercisable in accordance with their terms. On the
Effective Date, Viatel will vest the 67,750 shares of restricted stock granted
to you by Viatel and will deliver stock certificates representing such shares to
you without any restricted legend or other impairment of their negotiability.
(f) EXPENSE REIMBURSEMENT. Viatel will reimburse you for all unpaid
business expenses incurred or paid by you prior to the Effective Date in
connection with the performance of your duties under the Employment Agreement,
upon presentation of appropriate documentation in accordance with Viatel's
customary procedures and policies applicable to its executives.
(g) NO OTHER COMPENSATION OR BENEFITS. Except as otherwise provided
herein, you will not be entitled to any compensation or benefits (or any
reimbursement therefor) or to participate in any employee benefit program of
Viatel on or after the Effective Date.
3. YOUR RELEASE.
(a) Except as otherwise provided herein, in consideration of the
payments and benefits provided to you under this Agreement, you hereby release
and discharge Viatel, its affiliates and with respect to any actions, omissions,
matter or events relating to Viatel or its affiliates, their respective
partners, directors, officers, employees and agents (collectively, "Viatel
Persons") from and against any and all claims, actions, causes of action,
damages, liabilities, promises, debts, compensation, losses, obligations, costs
or expenses of any kind or nature, whether known or unknown, which you ever had,
now have or hereafter may have, against each or any of the Viatel Persons,
including, but not limited to, those arising from or related to your employment
relationships with Viatel or the termination of such employment, any alleged
violation of any covenant of good faith and fair dealing relative to your
employment or any applicable labor or employer-employee statute, regulation or
ordinance, whether federal, state or local (including, by way of specificity but
not of limitation, Title VII of the Civil Rights Act of 1964, the Americans with
Disabilities Act, the Civil Rights Act of 1991, any amendments to such acts and
any and all state and local discrimination laws)(the "Claims").
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Notwithstanding the foregoing, the forgoing release shall not apply to
(i) any payment, compensations, benefits or other rights to which you are
entitled under this Agreement; or (ii) any and all rights to indemnification
from Viatel (including expenses) provided in paragraph 14 herein.
(b) It is also agreed that this Agreement shall not be admissible in
any proceedings between us except in a proceeding relating to a breach of the
provisions of this Agreement.
(c) SPECIFIC RELEASE OF ADEA CLAIMS. In consideration of the payments
and benefits provided to you under this Agreement, you hereby release and
forever discharge the Viatel Persons from any and all claims, actions and causes
of action that you may have as of the date you sign this Agreement arising under
the Federal Age Discrimination in Employment Act of 1967, as amended, and the
applicable rules and regulations promulgated thereunder ("ADEA"). By signing
this Agreement, you hereby acknowledge and confirm the following: (i) you were
advised by Viatel in connection with your termination to consult with an
attorney of your choice prior to signing this Agreement and to have such
attorney explain to you the terms of this Agreement, including, without
limitation, the terms relating to your release of claims arising under ADEA,
(ii) you have been given a period of not fewer than twenty-one (21) days to
consider the terms of this Agreement and to consult with any attorney of your
choosing with respect thereto, and (iii) you are providing the release and
discharge set forth in this Section 3(c) only in exchange for consideration in
addition to anything of value to which you are already entitled.
(d) You agree and understand that you shall not construe or treat any
aspect of this Agreement as any admission of liability of any Viatel Persons.
4. VIATEL RELEASE.
(a) The Viatel Persons jointly and severally, all and singularly,
release and discharge you from any and all claims, actions, causes of action,
damages, liabilities, promises, debts, compensations, losses, obligations, costs
or expenses of any kind or nature, whether known or unknown, which any of the
Viatel Persons ever had, now have or hereafter may have against you, including,
but not limited to, those arising from or related to your employment
relationships with Viatel or the termination of such employment, any alleged
violation of any covenant of good faith or fair dealing, all common law claims
now existing or hereafter recognized, claims for negligence, breach of fiduciary
duty, interference with actual or prospective contractual relations,
misrepresentation, promissory estoppel, equitable estoppel, breach of contract
or any other type of claim. Viatel does not waive or release any rights set
forth in this Agreement.
(b) It is agreed and understood that the Viatel Persons shall not
construe or treat any aspect of this Agreement as any admission of liabilities
on your part.
5. COOPERATION. From and after the date hereof, you will use all
reasonable efforts to cooperate with Viatel and its respective directors,
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officers, attorneys and representatives in connection with the conduct of any
action, proceeding, investigation or litigation involving Viatel, solely with
respect to events or actions which occurred when you were employed by Viatel. In
such matters, you agree to provide, in response to reasonable requests: (i)
truthful testimony and information; and (ii) any documents that may be in your
possession, custody, or control (excluding privileged communications between you
and attorneys retained by you and excluding matters and claims arising under
this Agreement and any indemnification contemplated by section 14), to Viatel
and its respective directors, officers, attorneys, experts, or consultants in
connection with any action, suit, proceeding, investigation, or litigation
involving, or instituted by, or on behalf of, Viatel.
6. CONFIDENTIALITY. You acknowledge that you have been provided access
to information regarding Viatel (including, but not limited to, operational
systems, specifications of Viatel products and services, know-how, trade
secrets, personnel information, research products, development plans or
projects, and company strategies and other proprietary information) which
constitutes valuable, special and unique property of Viatel (the "Confidential
Information"). You agree that you will not, at any time or for any reason or
purpose whatsoever, make use of, divulge or otherwise disclose, directly or
indirectly, any of the Confidential Information to any person or use any of such
information without Viatel's express prior written authorization, which may be
withheld at Viatel's election; provided, however, that the foregoing limitation
shall not apply to: (a) the extent as may be required by law; (b) comply with
any legal process or subpoena (following advance notice to Viatel), (c)
statements in response to authorized inquiry from a court or regulatory body
(following advance notice to Viatel); and (d) information generally known to the
public or in the industries related to Viatel's business (other than through a
breach of this Agreement). Nothing herein shall prevent you from using your
general skills, general industry knowledge and experience.
7. NON-SOLICITATION. For a period of twenty-four (24) months from the
Effective Date, you shall not to solicit, induce, counsel, advise or encourage,
either directly or indirectly, any employee of Viatel who is employed in an
executive, managerial, professional or non-clerical administrative capacity to
leave the employment of Viatel.
8. NON-DISPARAGEMENT. You and Viatel will not at any time, and Viatel
shall use its best efforts to ensure that the Viatel Persons will not at any
time, make any statement, whether written or oral, or take any other action
which is intended, or could reasonably be expected to, disparage, defame or harm
the reputation (or otherwise cause adverse publicity) of the other parties. In
no event shall any public statements be made about Viatel or Viatel Persons on
the one hand and you on the other, without the prior written consent of Viatel
or you, respectively. You also agree that you will not assist in any litigation
or investigation against Viatel or any Viatel Person, except as required by law.
9. NON-DISCLOSURE. You and Viatel agree that the terms and conditions
of this Agreement are confidential and that each will not, without the express
prior written consent of Viatel or you, as applicable, in any manner publish,
publicize, disclose or otherwise make known or permit or cause to be known such
terms and conditions to anyone (other than such party's prospective or current
lenders, financial advisors and legal advisors, who shall agree to be bound by
this paragraph prior to disclosure of the terms and conditions hereof to such
persons), except as required by law, rule or regulation of any self regulatory
organization, including The Nasdaq, or in any proceeding to enforce the terms of
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this Agreement. Notwithstanding the foregoing, the parties hereto will agree
upon a mutually agreeable press release concerning this Agreement.
10. NO WAIVER. This Agreement constitutes the entire agreements and
understandings among the parties and, effective on the Effective Date,
supercedes any and all prior agreement or understanding, oral or written,
between the parties, including, but not limited to, your existing employment
agreement with Viatel (except as specifically referred to herein). None of the
provisions of this Agreement can be waived or modified except in writing signed
by the parties. This Agreement shall be binding upon and inure to the benefit of
you and your heirs, legal administrators and assigns and Viatel's successors and
assigns (whether by merger, consolidation, purchase, reorganization, sale of
stock, sale of assets, liquidation or otherwise). Furthermore, there are no
agreements, covenants or understandings other than those contained herein except
as govern the compensation and benefit plans and arrangements set forth herein.
11. SEVERABILITY. If any term or provision of this Agreement shall be
held invalid or unenforceable, the remaining terms and provisions of this
Agreement shall not be affected thereby and (i) such provision shall be reformed
to the minimum extent necessary to be valid while preserving the intent of the
parties as expressed herein, or (ii) if such provision cannot be so reformed,
such provision shall be severed from this Agreement and an equitable adjustment
shall be made to this Agreement (including, without limitation, addition of
necessary further provisions to this Agreement) so as to give effect to the
intent as so expressed and the benefits so provided. Neither such holding nor
such reformation nor severance shall affect or impair the legality or
enforceability of any other provision of this Agreement.
12. REVOCATION. You acknowledge and agree that by signing this
Agreement you understand that you voluntarily waive the right to revoke this
Agreement during the seven (7) day period following the execution of this
Agreement.
13. RECOVERY OF CERTAIN COSTS. If Viatel fails to pay any amounts
provided hereunder or any party otherwise breaches any provision of this
Agreement, either in whole or in part, then the non-breaching party shall be
entitled to recover from the other party, in addition to the recovery of its
damages and/or other relief, any costs, including reasonable attorneys' fees,
incurred or reasonably expected to be incurred in instituting, prosecuting or
defending any action arising by reason of such failure or the breach of this
Agreement.
14. INDEMNIFICATION; D&O Insurance. (a) Viatel hereby agrees to
indemnify you against any and all expenses (including attorney's fees and
costs), liabilities, costs, damages, judgments, fines and amounts paid in
settlement, actually and reasonably hereinafter incurred by you, to the fullest
extent now or hereafter permitted by law, in connection with any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, brought or threatened to be brought against you
by reason of your performance as a officer, employee, consultant or agent of
Viatel. The rights of indemnification provided for herein shall not be deemed
exclusive of any other rights to which you may be entitled under Viatel's
By-laws or Certificate of Incorporation, and shall inure to the benefit of your
heirs, executors and administrators. Any expenses (including reasonable
attorney's fees and costs) incurred by you in connection with an event for which
indemnification is provided hereunder shall be paid promptly by Viatel in
advance of the final disposition of such action, suit or proceeding upon receipt
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of an undertaking by you to repay such amount if it shall ultimately be
determined that you are not entitled to be indemnified by Viatel as authorized
by law.
15. TAX CONSEQUENCES. Viatel makes no representations or warranties
with respect to the tax consequences of any consideration provided to you by
Viatel under the terms of this Agreement or otherwise. You shall be responsible
for all income taxes and similar taxes and payments due to governmental
authorities with respect to all consideration provided for hereunder which have
not been deducted by Viatel.
16. GOVERNING LAW AND CHOICE OF FORUM. PURSUANT TO TITLE 14 OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, THE PARTIES HERETO AGREE THAT
(1) THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND
INTERPRETED, CONSTRUED, AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE
STATE OF NEW YORK, EXCEPT TO THE EXTENT THAT FEDERAL LAW MAY GOVERN AND (2) THE
FORUM FOR ANY DISPUTE HEREUNDER SHALL BE IN ANY FEDERAL AND/OR STATE COURT
LOCATED IN NEW YORK COUNTY, AND THERE SHALL BE NO DEFENSE TO THE SELECTION OF
SUCH FORUM BASED ON JURISDICTION, VENUE OR CONVENIENCE. EACH PARTY HERETO HEREBY
IRREVOCABLY WAIVES ANY OBJECTION TO SUCH JURISDICTION OR INCONVENIENT FORUM.
PLEASE READ THIS AGREEMENT CAREFULLY. BY EXECUTING THIS AGREEMENT, YOU
WILL HAVE WAIVED ANY RIGHT YOU MAY HAVE TO BRING A LAWSUIT OR MAKE ANY LEGAL
CLAIM, KNOWN OR UNKNOWN, AGAINST VIATEL OR ANY VIATEL PERSONS BASED ON ANY
ACTIONS TAKEN BY VIATEL OR ANY VIATEL PERSONS ARISING FROM OR RELATED TO YOUR
EMPLOYMENT WITH VIATEL OR THE TERMINATION OF SUCH EMPLOYMENT, UP TO THE DATE OF
THE EXECUTION OF THIS AGREEMENT. WE RECOMMEND THAT YOU RETAIN LEGAL COUNSEL TO
ADVISE YOU WITH RESPECT TO THE TERMS OF THIS AGREEMENT AND THE TERMINATION OF
YOUR EMPLOYMENT WITH VIATEL.
17. BINDING EFFECT. The parties understand that this Agreement is not
binding upon the parties until each accepts it, which acceptance is to be
evidenced by their respective execution on the signature page hereof.
18. NOTICES. All notices, requests and demands to or upon the
respective parties must be in writing and may be served by personal delivery,
facsimile transmission or certified mail, return receipt requested. All such
notices, requests and demands shall be deemed to be made upon receipt to you at
the address set forth above, and to Viatel at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000.
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The signature of the parties below signifies their voluntary acceptance
of the terms hereof. Please execute below and return one copy of this Agreement.
Sincerely,
VIATEL, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------
Name:
Title:
Accepted and Agreed:
/s/ Abe Grohaman
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Xxx Xxxxxxx
