Exhibit 10.1
August 5, 2005
Xxxxxx X. Xxxxxxx
000 Xxxxxx Xxxx
Xxxxx Xxxxx, XX 00000
Dear Xxx:
In recognition of your service to Terabeam Wireless / YDI Wireless, Inc.
("Terabeam") and to assist you in your transition to new employment, we would
like to offer to you the following separation terms and benefits. Accordingly,
this letter agreement is intended to confirm our understanding and agreement
with respect to your termination of employment with Terabeam.
1. Separation Date. Your last day of employment is August 2, 2005 (the
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"Separation Date"). Except as provided elsewhere in this letter agreement, your
employment benefits will cease in accordance with the terms of the specific
benefit plans at issue on the Separation Date. Terabeam will reimburse you for
normal business expenses incurred through the Separation Date in accordance with
its normal policy. Notice of your rights with respect to continuation of health
and dental benefits will be provided under separate cover.
2. Options. The vesting of your 100,000 options to purchase Terabeam stock
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will be accelerated such that all 100,000 options are vested and exercisable on
the Separation Date. As part of our overall agreement, you may exercise your
vested options in accordance with the terms of your stock option agreement (as
amended in the preceding sentence); provided, however, that you hereby agree not
to exercise any options prior to the Effective Date (as described in Section 11
below) and agree that Terabeam may disregard any purported exercise prior to
that date.
3. Accrued Vacation. Terabeam will compensate you for all accrued unused
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vacation time as of the Separation Date. You will not continue to accrue
vacation time after the Separation Date.
4. Medical and Dental Insurance Benefit Continuation. Your medical and
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dental group coverage will continue until August 31, 2005. You will be eligible
to continue those benefits under COBRA. If you elect to do so, Terabeam will pay
the COBRA premiums to continue your medical and dental insurance coverage
through December 31, 2005. If Terabeam is unable to continue coverage for any
reason (including your becoming ineligible or the benefit plans being
terminated), Terabeam's sole liability to you will be to pay you the amount
Terabeam would have paid to continue the insurance coverage. After December 31,
2005, you may elect to continue your group medical and dental coverage at your
own expense under the terms of COBRA.
Xxxxxx X. Xxxxxxx
August 5, 2005
Page 2
5. Terabeam Property. You agree and acknowledge that you have returned to
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Terabeam all property of Terabeam. For purposes of this paragraph, "property of
Terabeam" includes, but is not limited to, product prototypes and mockups, keys,
corporate credit cards, passwords, identification cards, equipment, books,
supplies, cellular telephones, computer programs, computers, computer files,
pictures, products, components, originals and copies of all corporate documents,
including financial records and information, and any other materials, whether
prepared by you or by others, but excludes anything owned by you individually.
6. General Release of Claims. In consideration of the provision to you of
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the benefits specified in this letter agreement, you hereby agree and covenant
not to xxx and not to make any claims of any kind against Terabeam, its past and
present divisions, subsidiaries, affiliates or related companies, its successors
or assigns and all past and present directors, officers, employees,
shareholders, and agents of these entities (collectively the "Releasees") before
any court or agency or other forum, and you further agree to, and hereby do,
release the Releasees up to the date of execution of this letter agreement for
any claims you may have against them, including, without limitation, any claims
arising under the Americans with Disabilities Act, Title VII of the Civil Rights
Act, the Age Discrimination in Employment Act, or any other federal or state
statute, law, regulation or common law provision governing compensation, age
discrimination, or the employment relationship. This release does not apply to
any claims arising solely after the date of execution of this letter agreement.
7. Opportunity to Review. You acknowledge that you have been given a
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reasonable period of at least twenty-one (21) days in which to consider this
letter agreement prior to signing. You acknowledge that, if you decide to
execute this letter agreement prior to the expiration of the twenty-one (21) day
period, it is solely your decision and Terabeam has not induced you to do so.
8. Careful Review and Understanding of Agreement. You represent that you
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have read carefully and fully understand the terms of this letter agreement.
9. Opportunity to Consult with Counsel. You acknowledge and represent that
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you have been advised to and, to the extent that you have wished to do so, have
consulted counsel of your choice prior to signing this letter agreement.
10. Free and Voluntary Act. You represent that you are entering into this
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letter agreement freely and voluntarily.
11. Opportunity to Revoke; Effective Date. You will have up to seven (7)
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days following your signing of this letter agreement to revoke your acceptance
by so notifying Terabeam in writing. If Terabeam does not receive a written
revocation during that seven day period, this letter agreement will
automatically take effect on the eighth (8th) day following your signing of it,
which date will be the Effective Date. Notwithstanding any other provision of
this letter agreement to the contrary, all obligations of Terabeam under this
letter agreement are contingent upon the occurrence of, and shall not bind
Terabeam until, the Effective Date.
Xxxxxx X. Xxxxxxx
August 5, 2005
Page 3
12. Non-Competition. You acknowledge that any agreements entered into by
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you with Terabeam relating to inventions, non-competition, restrictive
covenants, and confidential and/or proprietary information remain in full force
and effect.
13. Protection of Good Name. You agree that you will not in any way
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disparage or harm the name or reputation of Terabeam, or its past or present
officers, directors, employees, agents or attorneys, in either their personal or
official capacities, either directly or indirectly, or otherwise portray any of
the foregoing in a negative manner.
14. Non-Solicitation. You agree that for a period of one (1) year
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following the Effective Date, you will not solicit or in any manner, directly or
indirectly, encourage employees of Terabeam to leave its employ. You further
agree that during such period you will not offer or cause to be offered,
directly or indirectly, employment to any person who was employed by Terabeam at
any time during the six (6) months prior to the Effective Date.
15. Complete Agreement. Except as otherwise contemplated by this letter
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agreement, this letter agreement represents the complete agreement between you
and Terabeam regarding your employment and separation of employment and
supersedes any prior and contemporaneous agreements, whether oral or written.
16. Severability. Any provision of this letter agreement or attachments,
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if any, which is found to be prohibited or unenforceable will be treated as
ineffective only to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof.
17. Interpretation of Agreement. If any dispute regarding the
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interpretation or application of this letter agreement arises, you agree that it
will be interpreted and construed for all purposes under the internal laws of
the Commonwealth of Virginia. All disputes arising under or out of this letter
agreement will be brought in courts of competent jurisdiction located within the
Commonwealth of Virginia. You agree that any breach by you of your obligations
under this letter agreement will result in immediate and irreparable harm to
Terabeam and therefore, in addition to any other rights and remedies available
to Terabeam for any such breach, Terabeam shall be entitled to equitable
remedies, including, without limitation, specific performance and injunctive
relief.
[SIGNATURE PAGE FOLLOWS]
Xxxxxx X. Xxxxxxx
August 5, 2005
Page 4
If this letter agreement correctly sets forth our agreement with respect
to the foregoing matters, please so indicate by signing below.
Sincerely yours,
/s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
General Counsel
Agreed to and Accepted:
/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
Date: August 5, 2005
COMMONWEALTH OF VIRGINIA
, SS. August 5, 2005
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Then personally appeared the above named XXXXXX X. XXXXXXX, and
acknowledged the foregoing instrument to be his free act and deed before me.
(Seal) /s/ Xxxxxx Xxxxxx
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Notary Public
Name: Xxxxxx Xxxxxx
My Commission Expires: Aug 31, 2009
