EXHIBIT 10.22
SEPARATION AGREEMENT
This Separation Agreement (hereinafter, the "Separation Agreement") is made
and entered into as of the __ day of December, 2001, by and between Xxxx X.
Xxxxxxx, residing in Dallas County, Texas (hereinafter, "Beletic"), and WebLink
Wireless, Inc., a Delaware corporation headquartered in Dallas County, Texas
(hereinafter, "WebLink" and together with Beletic, the "Parties").
RECITALS
WHEREAS, Beletic, the Chairman of the Board and Chief Executive Officer of
WebLink, has advised the Board of Directors of WebLink (hereinafter the "Board")
that he desires to reduce his involvement in the active management of WebLink;
WHEREAS, Beletic has advised the Board that he is willing to and desires to
modify his employment relationship with WebLink (in the manner described herein)
to facilitate the successful reorganization of WebLink;
WHEREAS, the Board desires to accommodate Beletic's wishes and deems the
proposed changes to Beletic's employment relationship and the other matters
addressed by this Separation Agreement to be in the best interests of WebLink;
WHEREAS, WebLink is acting under this Separation Agreement in its capacity
as "debtor-in-possession" pursuant to that certain matter styled In re WebLink
Wireless, Inc. et al, Debtors, Jointly Administered Case No. 01-34275-SAF-11
(hereinafter the "Bankruptcy Case");
NOW, THEREFORE, in consideration of the premises, the mutual covenants and
promises contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties agree as
follows:
1. The effectiveness of this Separation Agreement is conditioned upon a
final non-appealable order (hereinafter the "Order") approving this Separation
Agreement being entered by the United States Bankruptcy Court for the Northern
District of Texas in the Bankruptcy Case.
2. During the period commencing with the entry of the Order and ending upon
the close of business on January 31, 2002, Beletic's base salary will be reduced
to Three Hundred Thousand and 00/100 Dollars ($300,000.00) per annum, subject to
all standard payroll taxes and withholding amounts. Beletic's participation in
the 4th Quarter 2001 portion of WebLink's 2001 annual bonus plan for the fiscal
year ending December 31, 2001, will be based upon his current target percentage
applied against his weighted average base salary for such quarter. Beletic's
status as an employee of WebLink will terminate upon the close of business on
January 31, 2002. The term of that certain Retention Agreement, dated January 3,
2000, by and between Beletic and WebLink and the term of that certain Phantom
Stock Agreement, dated January 3, 2000, by and between Beletic and WebLink, will
each expire on the effectiveness of this Separation Agreement. Beletic will
continue as Chairman of the Board and a director of WebLink until he sooner
resigns or is removed.
3. Except as hereinafter set forth, Beletic, on his behalf and on behalf of
his heirs, successors, agents, executors, administrators, attorneys and assigns,
hereby knowingly and voluntarily releases, waives his right to recover from and
forever discharges WebLink and any and all of its current or former
stockholders, officers, directors, employees, representatives, agents,
attorneys, affiliates, successors and assigns (hereinafter referred to as the
"WebLink Released Parties"), to the fullest extent permitted by law, from any
and all charges, complaints, claims, liabilities, obligations, promises,
agreements, controversies, damages, actions, causes of action, suits, rights,
demands, costs, losses, debts and expenses (including attorneys' fees and costs
actually incurred) (hereinafter collectively referred to as "Claims"), of any
nature whatsoever, known or unknown, suspected or unsuspected, which he now has,
owns, or holds, or claims to have, own, or hold, or which he at any time
heretofore had, owned, or held, or claimed to have had, owned, or held, against
any one or more of the WebLink Released Parties for any reason whatsoever in law
or in equity, under federal, commonwealth, state or local law (whether domestic
or foreign), including without limitation any and all Claims arising from (i)
Beletic's participation or right to participate in WebLink's Key Employee
Retention Plan, dated February 14, 2001, or the Amended Key Employee Retention
Plan approved by the Board on October 25, 2001, (ii) any claim by Beletic to
payment by WebLink of severance compensation, (iii) any employment statute or
regulation, any employment discrimination law, including, but not limited to,
the Age Discrimination in Employment Act, as amended, 29 U.S.C. Section 621 et
seq., Title VII of the Civil Rights Act of 1964, as amended, and the Equal Pay
Act of 1963, The Americans with Disabilities Act of 1990, as amended, the
Employee Retirement Income Security Act (non-vested rights only), Texas Labor
Code Section 21.001 et seq. (Texas Employment Discrimination) and any other
federal, commonwealth, state, or local civil rights, pension or labor law
(whether domestic or foreign), and (iv) any and all stock options granted to
Beletic by WebLink. Beletic warrants that, except as hereinafter set forth, this
is a general release and that he has not assigned or transferred any Claims that
would have, but for such assignment or transfer, been covered hereby. Nothing in
this Paragraph will be deemed to release or discharge WebLink from its
obligations set forth in this Separation Agreement.
4. Without limiting the generality of the foregoing, Beletic, on his behalf
and on behalf of his heirs, successors, agents, executors, administrators,
attorneys and assigns, further agrees not to xxx or otherwise institute or cause
to be instituted, or solicit, encourage, or cause any other individual or entity
to xxx or otherwise institute or cause to be instituted, except as required by
order of a court or of any agency of any federal, commonwealth, state, or local
government (whether domestic or foreign), the prosecution of any claim,
complaint, or charge seeking damages against any WebLink Released Party in any
federal, commonwealth, state, local or other court, administrative agency,
commission, or other forum (whether domestic or foreign) concerning any Claims
released herein, and Beletic irrevocably and unconditionally waives any and all
rights to recover any relief or damages concerning Claims released herein.
Beletic specifically represents that no complaints, charges, or other
proceedings are pending in any court, administrative agency, or other forum
relating directly or indirectly to any Claims released herein.
5. Beletic hereby acknowledges that in connection with his service as an
officer of the Company, he had access to and received information of the Company
(oral, written and otherwise) that is non-public, confidential and/or
proprietary in nature (the "Confidential Information"). Beletic reaffirms his
obligation regarding such Confidential Information and
covenant not to compete as set forth in the Confidentiality and Noncompetition
Agreement signed by Beletic on June 6, 1997.
6. Except as hereinafter set forth, WebLink, on its behalf and on behalf of
its affiliates, successors, agents, attorneys and assigns, hereby knowingly and
voluntarily releases, waives its rights to recover from and forever discharges
Beletic and any and all of his heirs, successors, agents, administrators,
attorneys, executors and assigns (hereinafter referred to as the "Beletic
Released Parties"), to the fullest extent permitted by law, from any and all
Claims, of any nature whatsoever, known or unknown, suspected or unsuspected,
which it now has, owns, or holds, or claims to have, own, or hold, or which it
at any time heretofore had, owned, or held, or claimed to have had, owned, or
held, against any one or more of the Beletic Released Parties for any reason
whatsoever in law or in equity, under federal, commonwealth, state or local law
(whether domestic or foreign). WebLink warrants that, except as hereinafter set
forth, this is a general release and that it has not assigned or transferred any
Claims that would have, but for such assignment or transfer, been covered
hereby. Nothing in this Paragraph will be deemed to release or discharge Beletic
from his obligations set forth in this Separation Agreement.
7. Without limiting the generality of the foregoing, WebLink, on its behalf
and on behalf of its affiliates, successors, agents, attorneys and assigns,
further agrees not to xxx or otherwise institute or cause to be instituted, or
solicit, encourage, or cause any other individual or entity to xxx or otherwise
institute or cause to be instituted, except as required by order of a court or
of any agency of any federal, commonwealth, state, or local government (whether
domestic or foreign), the prosecution of any claim, complaint, or charge seeking
damages against any Beletic Released Party in any federal, commonwealth, state,
local or other court, administrative agency, commission, or other forum (whether
domestic or foreign) concerning any Claims released herein, and WebLink
irrevocably and unconditionally waives any and all rights to recover any relief
or damages concerning Claims released herein. WebLink specifically represents
that no complaints, charges, or other proceedings are pending in any court,
administrative agency, or other forum relating directly or indirectly to any
Claims released herein.
8. Notwithstanding the foregoing, neither Beletic nor WebLink will be
deemed to have released any party with respect to Claims arising out of or
attributable to (i) contractual obligations of the Parties not expressly
addressed above, (ii) Beletic's entitlement to salary and bonuses accrued but
not yet paid as of the effectiveness of this Separation Agreement, (iii)
Beletic's entitlement to participate in WebLink's employee benefit plans in
which employees of WebLink are generally entitled to participate or (iv)
Beletic's rights to or Claims for contribution or indemnification pursuant to
WebLink's certificate of incorporation or bylaws or any contract or statutory or
common law. In addition, notwithstanding the foregoing, (i) Beletic will not be
deemed to have released or relinquished any rights or Claims he has as an
insured or otherwise arising out of or relating to any contract of insurance,
including but not limited to WebLink's Directors and Officers Liability
Insurance Policies, and (ii) WebLink and Beletic will not be deemed to have
released any Claim arising out of or attributable to the factual allegations now
or hereafter set forth in that certain litigation styled
(i) Park Avenue Securities v. WebLink Wireless, Inc. and Xxxx X. Xxxxxxx;
Civil Action No. 3-01-CV-0498-L, Consolidated with Civil Action No.
3-01-CV-0551-L,
Civil Action No. 3-01-CV-0563-L and Civil Action No. 3-01-CV-0674-L;
pending in the United States District Court for the Northern District
of Texas; and
(ii) Pine T-1 Limited Partnership v. WebLink Wireless, Inc. and Xxxx X.
Xxxxxxx; Civil Action No. 3-01-CV-1634-L; originally filed in Xxxxxx
Xxxxx xx Xxx Xx. 0, Xxxxxx Xxxxxx, Xxxxx; removed to and pending in
the United States District Court for the Northern District of Texas.
9. WebLink will use its reasonable best efforts to carry for the first five
(5) years following the effectiveness of this Separation Agreement, in coverage,
form, retroactive date and amount at least equal to the coverage carried as of
the date of this Separation Agreement, directors' and officers' liability
insurance covering each such person currently covered by such insurance,
including but not limited to Beletic, and pay all premiums on the policies for
such insurance when and as they become due and do all other things necessary to
maintain such policies in full force and effect.
10. The rights and restrictions in this Separation Agreement may be
exercised and are applicable only to the extent that they do not violate
applicable laws, and are intended to be limited to the extent necessary so that
they will not render this Separation Agreement illegal, invalid or
unenforceable. If any term shall be held illegal, invalid or unenforceable by a
court of competent jurisdiction, the remaining terms shall remain in full force
and effect.
11. This Separation Agreement may be amended, modified, or supplemented
only by a written instrument executed by the Parties, and shall be binding upon
their respective heirs, beneficiaries, successors and assigns. This Separation
Agreement is entered into in Dallas County, Texas and shall be governed by and
construed under the laws of the State of Texas, exclusive of any choice of law
rules. To the maximum extent practicable, this Separation Agreement will be
deemed to call for performance in Dallas County, Texas.
12. This Separation Agreement sets forth the entire agreement and
understanding between the Parties with respect to the subject matter hereof,
supersedes any prior agreement with respect to the subject matter hereof, and
merges all prior discussions and negotiations between the Parties. The Parties
each represent that they are not relying on any promises or oral or written
statements or representations other than those contained in this Separation
Agreement.
13. Each Party acknowledges that such Party has read and understands this
Separation Agreement and executes it knowingly, voluntarily and without
coercion. Beletic further acknowledges that he is being advised herein in
writing to consult with an attorney prior to executing this Separation
Agreement, and that he has been given a period of at least forty-five days
within which to consider and execute this Separation Agreement, unless he
voluntarily chooses to execute this Separation Agreement before the end of the
twenty-one day period by executing the attached Election to Execute Prior to
Expiration of Forty-Five Day Consideration Period. Beletic understands that he
has seven days following his execution of this Separation Agreement to revoke
it. For such revocation to be effective, written notice of revocation must be
delivered directly to the attention of Xxxxxxxxx X. Xxxxxxxx, General Counsel at
WebLink's Dallas, Texas headquarters, no later than 5:00 p.m. on the seventh
calendar day after Beletic
signs this Separation Agreement. If Beletic revokes this Agreement, it shall not
be effective or enforceable and he shall not receive the benefits described
herein.
IN WITNESS THEREOF, Beletic and WebLink, after carefully reading the
provisions of this Separation Agreement herein declare that they understand such
provisions and willingly accept and agree thereto by executing this Separation
Agreement.
WebLink Wireless, Inc.
By:
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Xxxx X. Xxxxxxx Name:
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Title:
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Date: Date:
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ELECTION TO EXECUTE PRIOR TO EXPIRATION
OF FORTY-FIVE DAY CONSIDERATION PERIOD
I, Xxxx X. Xxxxxxx, understand that I have at least forty-five days within
which to consider and execute the foregoing Separation Agreement. However, after
having an opportunity to consult counsel I have freely and voluntarily elected
to execute the Separation Agreement before the forty-five day period has
expired.
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Xxxx X. Xxxxxxx
Date:
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