Exhibit 10.39
SEPARATION AND RELEASE AGREEMENT
THIS SEPARATION AND RELEASE AGREEMENT (the "Agreement") is made and
entered into by and between Xxxxxx X. Xxxxx (the "Executive") and Velocita Corp.
(the "Company") (collectively, the "Parties").
WHEREAS, the Executive's employment with the Company will terminate
effective April 29, 2002, in connection with a reduction in force.
WHEREAS, the Company has offered the Executive valuable consideration
over and above that to which he would otherwise be entitled on termination of
employment, in exchange for the Executive's execution of this Agreement.
NOW THEREFORE, in consideration of the mutual promises contained
herein, it is agreed as follows:
1. The Parties acknowledge and agree that the Executive's employment
with the Company will terminate, effective April 29, 2002 (the "Termination
Date").
2. The Company shall pay the Executive severance pay in the amount of
Two Hundred and Fifty Thousand Dollars ($250,000) less applicable deductions and
withholding, in a lump sum following the date this Agreement becomes effective.
If the Executive elects to continue his health insurance coverage under the
Company's group health insurance plan pursuant to COBRA, the Company will pay
the premiums for such continuation coverage for the six-month period following
the Termination Date.
3. The Executive represents that he has returned or, as of the
Termination Date, he will return, all Company property, including without
limitation, all equipment, supplies, documents, files, records, reports,
memoranda, blueprints, software, credit cards, cardkey passes, door and file
keys, computer access codes, disks or instructional manuals and other physical
or personal property the Executive received, prepared or helped to prepare in
connection with his employment with the Company, and all copies, duplicates,
reproductions or excerpts thereof.
4. The Executive agrees that he will not make any disparaging or
defamatory comments about the Company, or about any of the Company's parent
companies, subsidiaries or affiliates or any of their officers, directors,
management, or employees, nor will he authorize, encourage or participate with
anyone on his behalf to make such statements.
5. The Executive agrees to keep the terms, amount and fact of this
Agreement completely confidential, except as may be required by law or legal
process, and except that the Executive may reveal the terms of this Agreement
to the Executive's spouse and his legal, financial and tax advisors, provided
that each such individual agrees not to reveal such information further.
6. The Executive agrees, upon reasonable request, to provide to the
Company and its parent companies, subsidiaries and affiliates truthful and
complete cooperation in litigation matters arising out of or related to the
Executive's activities while employed by the Company, whether or not such
matters have been commenced as of the termination of the Executive's employment.
7. As a material inducement to the Company to enter into this Agreement
and in consideration for the Company's promise to pay COBRA premiums and
severance pursuant to Paragraph 2 above, the Executive, on behalf of himself,
his heirs, executors, administrators and assigns hereby irrevocably and
unconditionally releases the Company and its parent companies, subsidiaries and
affiliates, together with all of their current, former and future employees,
directors, partners, members, shareholders, officers, agents, attorneys,
representatives, predecessors, successors, assigns, and the like, and all
persons acting by, though, under or in concert with any of them (collectively,
the "Releasees") from any and all charges, complaints, claims, liabilities,
obligations, promises, agreements, controversies, damages or causes of action,
suits, rights, demands, costs, losses, debts and expenses (including attorneys'
fees and costs incurred) of any nature whatsoever, known or unknown, suspected
or unsuspected, arising on or before the date the Executive signs this
Agreement, including, but not limited to, any claims arising out of or related
to the termination of Executive's employment, any claims arising under or
related to any employment agreement between the Executive and the Company or any
of its predecessors, any claims under the Worker Adjustment and Retraining
Notification Act or similar laws and any claims under Federal, state or local
laws prohibiting any form of discrimination, including without limitation,
discrimination on the basis of age, as prohibited by the Age Discrimination in
Employment Act, arising on or before the date the Executive signs this
Agreement. The Executive further agrees to waive irrevocably any right to
recover under any claim that may be filed on the Executive's behalf by the EEOC
or any other federal, state or local
government entity, or otherwise, relating to the Executive's employment with the
Company or the termination of that employment.
8. The Executive represents and warrants that he has not filed any
complaints or charges or lawsuits against the Company or any other Releasee with
any governmental agency or court and the Executive has not assigned or
transferred, or purported to assign or transfer, to any person or entity, any
claim or any portion thereof or interest therein he has against the Company or
any other Releasee.
9. The Executive acknowledges that the payments and benefits to be
provided to him under Paragraph 2 above exceed any compensation or benefits
which would otherwise be paid to him on termination of employment. The Executive
further acknowledges and agrees that the payments to be paid to him or on his
behalf under Paragraph 2 above shall be in lieu of and discharge any obligations
of the Company to the Executive under the terms of his April 12, 2000 Employment
Agreement with the Company, or otherwise, for any further compensation, unused
vacation, severance pay, relocation payments, or any other expectations of
remuneration or benefit on the part of the Executive, except for the
reimbursement of reasonable business expenses incurred by the Executive prior to
the Termination Date, to be paid in accordance with the Company's policy for
reimbursement of employee business expenses and except to the extent that the
Executive is entitled to any benefits following termination under the terms of
the Company's employee benefit plans.
10. The Executive represents and acknowledges that the Executive has
been given a period of twenty-one (21) days to consider this Agreement and that
the Executive has read this Agreement, understands the terms of the Agreement
and has been given an opportunity to ask questions of the Company's
representatives. The Executive has been advised to consult with an attorney
prior to signing this Agreement.
11. The Executive further represents that in signing this Agreement the
Executive does not rely, and has not relied, on any representation or statement
not set forth in this Agreement made by any representative of the Company or any
other Releasee with regard to the subject matter, basis or effect of this
Agreement or otherwise.
12. This Agreement is knowingly and voluntarily entered into by all
Parties.
13. For a period of seven (7) days after the date the Executive signs
this Agreement, the Executive has the right to revoke this Agreement by
delivering written notice of revocation to
Xxxx Xxxxxxx at Velocita Corp., 0000 Xxxxxxxx Xxxx Xxxxx, Xxxxx 000, Xxxxx
Xxxxxx, Xxxxxxxx 00000, prior to close of business (5:00 p.m.) on the seventh
day following the date on which the Executive signs this Agreement. The
Agreement shall not be effective or enforceable, and the Executive shall not
be entitled to any severance pay or payment of COBRA premiums, unless and
until seven (7) days have elapsed from the date the Executive signs this
Agreement and the Executive has not revoked the Agreement during that seven
(7) day period.
14. This Agreement sets forth the entire agreement between the Parties
and fully supersedes any and all prior agreements, understandings or
arrangements between the Parties about the subject matter of this Agreement.
15. This Agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Virginia without reference to rules
regarding conflicts of law.
16. The provisions of this Agreement are severable and if any part of
it is found to be unenforceable, the other provisions shall remain fully valid
and enforceable. This Agreement shall survive the termination of the Executive's
employment and any arrangements contained herein.
17. This Agreement may be executed in any number of counterparts, each
of which shall, when executed, be deemed to be an original and all of which
shall be deemed to be one and the same instrument.
18. Neither this Agreement nor any part of it may be modified, amended,
changed or terminated orally, and any modification, amendment, or termination
must be in writing signed by both Parties. Any waiver of any term or provision
of this Agreement must be in writing and signed by the Party granting the
waiver.
19. This Agreement shall be binding on the Executive and the
Executive's heirs, administrators, representatives, executors and assigns and
shall inure to the benefit of the Company, its parent companies, subsidiaries
and affiliates and to their successors and assigns.
IN WITNESS WHEREOF, each of the parties hereunto has executed this
Agreement this 8th day of March, 2002.
VELOCITA CORP. EXECUTIVE:
By: /s/ Xxxx X. Xxxxxxx /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
Date 3/8/2002 Date 3/8/2002
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