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Exhibit 10.19
EXECUTIVE SEPARATION AGREEMENT
This Executive Separation Agreement (the Agreement) is entered into this
15th day of March, 2001, between Advanced Switching Communications, Inc. ("ASC")
and Xxxx Xxxxx (the "Executive") (sometimes collectively referred to as the
"Parties").
WHEREAS:
A. Executive was employed by ASC as a Sr. Vice President of Sales and by
mutual agreement, Executive's employment with ASC shall be deemed terminated
effective as of March 15, 2001 through Executive's resignation of employment.
B. Company and Executive now desire to resolve all disputes, claims or
charges that may exist between them in any way relating to or arising out of
Executive's hire, employment, remuneration or termination from ASC, in
accordance with the terms and conditions set forth herein.
AGREEMENT
Now, therefore, in consideration of the mutual promises, conditions and
covenants set forth below, the parties hereto agree as follows:
1 Executive's Termination of Employment
1.1 By virtue of ASC waiving the required two week notice period for
resignation of employment, Executive hereby acknowledges that
her employment with ASC shall be deemed terminated effective as
of March 15, 2001 and she is providing a resignation letter
simultaneously with the execution of this Agreement (the
Termination Date).
2 Separation Payments
2.1 ASC shall provide Executive with separation payments equal to
her base pay less statutory withholdings on ASC's normal payroll
schedule until September 15, 2001, (the Separation Payments)
once this agreement is irrevocable.
2.2 Vacation pay accrued but not taken by Executive as of the
Termination Date shall be paid to Executive following March 15,
2001.
2.3 The Separation Payment shall be paid by check made payable to
Executive and shall be mailed to Executive at 0000 XX 00xx
Xxxxxxx, Xxxx Xxxxx, XX 00000 unless ASC is otherwise notified
in writing.
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3 Medical Insurance and Other Benefits
3.1 Executive acknowledges that, subject to her rights under the
CONSOLIDATED OMNIBUS BUDGET RECONCILIATION ACT (COBRA), she may
continue to remain covered under ASC's medical and dental
insurance plans at her own expense for up to eighteen (18)
months. During the six month period from March 15, 2001 through
September 15, 2001 that ASC is providing separation payments as
described in article 2.1 above, ASC contemporaneously will
underwrite the costs of Executive's COBRA coverage if she elects
to continue her health insurance coverage under COBRA.
3.2 As of the termination date, Executive's vested options as of
March 15, 2001 for 125,000 shares of company common stock shall
be exercisable in accordance with Exhibit A attached hereto. All
other options previously granted to employee shall expire and
terminate on the Termination Date.
3.3 ASC is willing to reimburse you for reasonable business expenses
incurred by you on behalf of the company within 14 days after
they have been submitted as long as they have been submitted
within 30 days of your termination date and are submitted in
accordance with company policy including, any appropriate
documentation that may reasonably be requested by the company.
4 No Other Amounts Owed
4.1 The payments and items provided for in articles 2 and 3 above
shall constitute the entire, maximum, and only financial or
other obligation of ASC to Executive under this Agreement or
otherwise.
4.2 Executive expressly acknowledges and agrees that the payments
provided for in this Agreement are in lieu of and exceed any
other compensation or payments to which she may be entitled by
virtue of her employment with and/or termination from ASC.
5 No Admission
5.1 Neither the payment of the above-referenced amounts, nor the
execution or performance of any terms of this Agreement shall
constitute or be construed as an admission of any liability
whatsoever by ASC to Executive.
6 Employment Reference and Nondisparagement
6.1 If ASC receives any inquiries from prospective future employers
of Executive, ASC shall confirm only dates of employment and
position held.
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6.2 ASC, through the officers named below, and Executive will not
orally or in writing defame, criticize or willfully disparage,
or in any manner undermine the reputation of the other, and in
the case of ASC, includes any subsidiary or affiliated
corporation of ASC itself, or any employee, officer or director
of the Company or any subsidiary or affiliate of the Company,
except as required by compulsion of law to truthfully testify. A
disparaging statement is any communication, oral or written,
which is intended, or would tend, to cause the recipient of the
communication to question the business condition, quality of
products and services, legal compliance, integrity, competence,
fairness or good character of ASC or the person to whom the
communication relates. The ASC officers bound by this provision
are Xxxxx D'Xxxxxx, Xxxxxx Xxxxxxx, Xxxxx Xxxxx, Xxxxxx Xxxxxxx,
Xxx Xxxxxxxxx, Xxx Xxxxxxxxx, Xxxxxxx Range, Xxxx Xxxx, Xxxx
Xxxxxx, and Xxx Ma.
7 Release
7.1 For the valuable consideration set out in this Agreement, the
receipt and adequacy of which are hereby acknowledged, and
except as specifically set forth in paragraph 7.5 below:
7.1.1 Executive, on behalf of herself, and each of her heirs,
executors, administrators, successors and assigns, does
hereby release and forever discharge ASC, and any of its
parent companies, subsidiaries, affiliates, divisions,
predecessors, successors, agents, representatives,
officers, directors, employees, shareholders, heirs,
assigns, past and present, and their attorneys, and all
persons acting by, through, under or in concert with
them or any of them (the ASC Releasees), of and from any
and all manner of action or actions, cause or causes of
action, in law or in equity for indemnity or otherwise,
suits, grievances, arbitrations, complaints, debts,
liens, contracts, agreements, promises, liabilities,
claims, demands, damages, losses, costs, or expenses, of
any nature whatsoever, known or unknown, fixed or
contingent (hereinafter called Claims), which the
Executive now has or may hereafter have against the ASC
Releasees, by reason of any matter, cause or thing
whatsoever occurring or existing up to and inclusive of
the Effective Date of this Agreement, including but not
limited to those claims arising out of:
7.1.1.1 the contract of employment between Executive and
ASC;
7.1.1.2 the termination of the contract of employment
between Executive and ASC;
7.1.1.3 Executive's loss of position, status, future job
opportunity, or reputation;
7.1.1.4 losses related to the timing of Executive's
conclusion of employment or the manner in which
it was effected;
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7.1.1.5 the loss of benefits, benefits eligibility, or
benefits insurance coverage previously provided
to Executive by ASC or available to Executive in
connection with her employment with ASC ,
including but not limited to benefits, benefits
eligibility or benefits insurance coverage
relating to or arising from the following
matters: medical fees, charges, or expenses;
extended health fees, charges, or expenses;
dental fees, charges, or expenses; sick pay or
sick leave; life insurance (including life
insurance conversion privileges); 401(k)
contributions; pension contributions or
benefits; short term disability; long term
disability; the Stock Option Plan; and any other
type of loss or damages.
7.2 Without limiting the generality of the foregoing, the Claims
released herein include any Claims arising out of, based upon or
in any way related to:
7.2.1 any property, contract or tort claims, including
wrongful discharge, breach of employment contract,
breach of the covenant of good faith and fair dealing,
retaliation, intentional or negligent infliction of
emotional distress, tortious interference with existing
or prospective economic advantage, negligence,
misrepresentation, breach of privacy, defamation, loss
of consortium, breach of fiduciary duty, violation of
public policy or any other common law claim of any kind;
7.2.2 any violation or alleged violation of Title VII of the
CIVIL RIGHTS ACT OF 1964, as amended, the AGE
DISCRIMINATION IN EMPLOYMENT ACT, as amended, the OLDER
WORKERS BENEFIT PROTECTION ACT OF 1990, the EQUAL PAY
ACT, as amended, the FAIR LABOR STANDARDS ACT, the
EMPLOYEE RETIREMENT INCOME SECURITY ACT, the AMERICANS
WITH DISABILITIES ACT, the CALIFORNIA FAIR EMPLOYMENT
AND HOUSING ACT, the CALIFORNIA LABOR CODE, the
CALIFORNIA UNEMPLOYMENT INSURANCE ACT, the CALIFORNIA
WORKERS COMPENSATION ACT, the CIVIL RIGHTS ACT OF 1866,
the CONSOLIDATED OMNIBUS BUDGET RECONCILIATION ACT,
CALIFORNIA LABOR CODE SECTION 1102.5, the CALIFORNIA
FAMILY RIGHTS ACT, OR the FAMILY AND MEDICAL LEAVE ACT
OF 1993;
7.2.3 any claims for severance pay, bonus, sick leave,
vacation or holiday pay, life insurance, health,
disability or medical insurance or any other fringe
benefit; and
7.2.4 any claim relating to or arising under any other local,
state or federal statute or principle of common law
(whether in contract or in tort) governing the
employment of individuals, discrimination in employment
and/or the payment of wages or benefits.
7.3 IN ACCORDANCE WITH THE OLDER WORKERS BENEFIT PROTECTION ACT OF
1990, EXECUTIVE SHOULD BE AWARE OF THE FOLLOWING:
7.3.1 You have the right to consult with an attorney before
signing this Agreement;
7.3.2 You have twenty-one (21) days to consider this
Agreement; and
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7.3.3 You have seven (7) days after signing this Agreement to
revoke this Agreement, and this Agreement shall not be
effective until that revocation period has expired. ASC
reserves the right to withdraw this Agreement prior to
its acceptance by you.
Executive agrees that if she signs this Agreement but
then chooses to revoke this Agreement pursuant to
subparagraph 7..3.3 above, this Agreement and all of its
terms shall immediately terminate including payments
thereunder.
7.4 Executive acknowledges that she has been advised of and is
familiar with the provisions of the CALIFORNIA CIVIL CODE
SECTION 1542 which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HER MUST HAVE
MATERIALLY AFFECTED HER SETTLEMENT WITH THE DEBTOR.
Executive, being aware of said Code section, hereby expressly
waives any rights she may have thereunder, as well as under any
other statutes or common law principles of similar effect.
7.5 Notwithstanding anything to the contrary set forth above, the
Parties expressly acknowledge and agree that the releases
contained in this article 7 are not intended to apply to:
7.5.1 the obligations and representations of the Parties set
forth in this Agreement;
7.5.2 Executive's rights, if any, to indemnity pursuant to
CALIFORNIA LABOR CODE 2802 and/or the CALIFORNIA
CORPORATIONS CODE 317.
7.6 Executive represents and warrants that there has been and there
shall be no assignment or other transfer of any interest in any
claim that she may have against ASC Releasees, or any of them.
7.7 ASC agrees to release Executive from any and all civil claims
arising out of or in the course of her employment with ASC with
the exception of a release of claims constituting criminal
conduct. ASC further acknowledges that Executive's only
post-employment restrictions are contained within this Executive
Separation Agreement and that all restrictive covenants and
agreements not to compete previously agreed to by parties
(including those set forth in Section 7(b) of the September 22,
2000 Employment Agreement between the parties) are hereby
cancelled and unenforceable.
7.8 The Parties agree that if any of them hereafter commences, joins
in, or in any manner seeks relief against any of their
respective releases through any suit arising out of, based upon,
or relating to any of the Claims releases hereunder or in any
manner asserts against their respective Releasees, or any of
them, any of the claims released hereunder, then that party
shall pay in addition to any other damages caused thereby, all
attorneys' fees
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and costs incurred by the affected Releasees in defending or
otherwise responding to said suit or claim.
8 Solicitation of Employees
8.1 Executive shall not under any circumstances solicit any
employees of ASC, its subsidiaries, affiliates, divisions,
predecessors, successors, agents, or representatives, to leave
their employment for a period of twenty-four (24) months after
the Termination Date.
8.2 Executive shall not:
8.2.1 solicit or otherwise encourage any employee or former
employee of ASC, it subsidiaries, affiliates, divisions,
predecessors, successors, agents, or representatives, to
file or assert any claim, charge or litigation against
ASC, its subsidiaries, affiliates, divisions,
predecessors, successors, agents, or representatives, in
any way relating to their employment; or
8.2.2 voluntarily cooperate or otherwise offer assistance of
any kind to any employee or former employee of ASC, its
subsidiaries, affiliates, divisions, predecessors,
successors, agents, or representatives, in the
employees' or former employee's filing or prosecution of
any claim, charge or litigation against ASC, its
subsidiaries, affiliates, divisions, predecessors,
successors, agents, or representatives, in any way
relating to their employment, unless compelled to do so
by law.
9 Confidential Business Information and Tangible Property
9.1 Executive shall hold in strictest confidence and not disclose,
directly or indirectly, to any person, firm or corporation,
without the express prior written consent of ASC, any trade
secrets or any confidential business information, including, but
not limited to, corporate planning, production, distribution or
marketing processes; manufacturing techniques; customer lists or
customer leads; marketing information or procedures; development
work; work in process; financial statements or notes, schedules
or supporting financial data; or any other secret or
confidential matter relating to the products, sales or business
of company, its subsidiaries, affiliates, divisions,
predecessors, successors, agents, or representatives. Trade
Secrets include information not generally known to the public
regarding ASC's engineering capabilities, products, designs and
prototypes in development.
9.2 Executive agrees that within ten (10) days after the signing of
this Agreement she shall deliver to ASC and shall not keep in
her possession or deliver to anyone else, any and all company
credit cards, notes, memoranda, specifications, financial
statements, customer lists, product surveys, data, documents,
other material containing or disclosing any of the matters
referred to in paragraph 9.1 above and all other items of ASC
property in her possession.
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9.3 Executive acknowledges that any breach of the provisions of this
article 9 by her shall cause irreparable injury to ASC, for
which the available remedies at law shall not be adequate.
Accordingly, in the event of any such breach or threatened
breach of any provision of this article in addition to any other
remedy provided by law or in equity, ASC shall be entitled to
appropriate injunctive relief, in any court of competent
jurisdiction, restraining Executive from any such actual or
threatened breach of this article. Executive stipulates to the
entry against Executive of any such temporary, preliminary or
permanent injunction and agrees not to resist ASC's application
for such equitable relief, except on the grounds that the acts
or omissions alleged by ASC did not violate any of the
provisions of this article.
10 Confidentiality
10.1 In addition to the confidentiality provisions of article 9,
Executive shall keep confidential and not disclose any of the
terms of this Agreement to any person whatsoever (including, but
not limited to, any current or former employees of ASC except
her attorneys, tax advisors, immediate family and significant
other) unless required to do so by law.
11 Miscellaneous
11.1 This Agreement shall be governed by the law of the Commonwealth
of Virginia, Company's principal place of business, without
giving effect to Virginia's conflict of laws. The parties hereto
agree that the proper venue for any dispute shall be the Fairfax
County Circuit Court or the United States District Court for the
Eastern District of Virginia, Alexandria Division and in the
event that there is no other manner of service hereby appoint
the Secretary of the Commonwealth of Virginia.
11.2 This Agreement shall not be subject to attack on the ground that
any or all of the legal theories or factual assumptions used for
negotiating purposes are for any reason inaccurate or
inappropriate.
11.3 This Agreement represents the sole and entire agreement among
the Parties and supersedes all prior agreements, negotiations,
and discussions between the Parties hereto and/or their
representatives. Any amendment to this Agreement must be in
writing specifically referring to this Agreement and signed by
duly authorized representatives of all of the Parties hereto.
11.4 The Parties agree that the language of this Agreement shall not
be construed for or against any particular party.
11.5 The provisions of this Agreement are severable. If any provision
is held to be invalid or unenforceable, it shall not affect the
validity or enforceability of any other provision.
11.6 Executive acknowledges and agrees that (i) ASC has advised her
of her right to consult an attorney before signing this
Agreement, (ii) she has consulted an attorney to the extent she
deems advisable, (iii) she fully understands the provisions of
this Agreement and their effect, and (iv) she is signing this
Agreement voluntarily and free from duress.
11.7 All monetary sums in this Agreement are in United States
currency.
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11.8 This Agreement may be executed in one or more counterparts, each
of which is deemed an original, and all of which constitute one
instrument.
11.9 This Agreement shall be considered executed and delivered when
either:
11.9.1 an originally executed copy has been delivered to each
party; or
11.9.2 when a facsimile of the Agreement evidencing this
signatures of all the Parties has been transmitted by
facsimile to each party and each party has acknowledged
receipt by return facsimile.
11.10 The Effective Date of this Agreement shall be that date which is
seven (7) days after the date on which Executive signs this
Agreement, provided that Executive has not exercised her right
to revoke this Agreement pursuant to subparagraph 7.3.3 above.
Witness our signatures and seals as of the date written below.
Advanced Switching Communications, Inc. Employee
By: (SEAL) (SEAL)
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Title: Xxxx Xxxxx
Date: Date:
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Exhibit A
ADVANCED SWITCHING COMMUNICATIONS, INC.
NOTICE OF GRANT OF STOCK OPTIONS
ADDENDUM
Name of Participant: Xxxx Xxxxx
Address of the Participant: 0000 XX 00xx Xxxxxxx, Xxxx Xxxxx, XX 00000
Non-Qualified Stock Option Grant No: 00000300
Date of Grant: September 25, 2000
Total Number of Shares Granted: 500,000
Effective in accordance with the date your Executive Separation Agreement become
irrevocable, your stock grant No. 300, dated October 10, 2000 and referenced
above is amended such that you may exercise your vested options (125,000) at the
granted exercise price of $13.00 for up to six months after termination of your
employment on March 15, 2001. Therefore, all your unvested options will expire
upon termination of employment on March 15, 2001 and your vested options will
expire and all rights thereunder shall terminate on September 15, 2001 to the
extent they have not been exercised. All other provisions of the Advanced
Switching Communications, Inc. 2000 Stock Incentive Plan ("Plan") remain
unchanged and continue in full force and effect.
This amendment is made by the authority and with the approval of the Committee
appointed by the Board of Directors charged with administering the Plan.
By your signature and Advanced Switching Communications, Inc.'s signature by its
agent below, you agree that this option amendment and the initial option grant
are governed by the terms and conditions of Advanced Switching Communication's
2000 Stock Incentive Plan. Optionee represents that she is familiar with the
terms and conditions of the Grant Agreement and accepts the option and option
amendment subject to all the terms and conditions thereof. Optionee agrees to
accept as binding, conclusive and final all decisions or interpretations of the
Board of Directors of Advanced Switching Communications, Inc. upon any questions
arising under this agreement.
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For Advanced Switching Communications, Inc. Date
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Optionee Date
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