EXHIBIT 10.83
SEPARATION AGREEMENT
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This Separation Agreement (hereinafter referred to as the "Agreement") is
entered into as of the 30th day of April, 1998 (hereinafter referred to as the
"Effective Date") by and between Computone Corporation (hereinafter referred to
as "Computone") and Xxxxxx X. Xxxxxxxx (hereinafter referred to as "Xxxxxxxx").
In consideration of the mutual covenants, releases and payments described
herein, the receipt and sufficiency of which are acknowledged, Computone and
Xxxxxxxx agree as follows:
1. RESIGNATION OF EMPLOYMENT: Xxxxxxxx has determined to resign his
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employment as President and Chief Executive Officer of Computone and as a
director of Computone and Computone has determined to accept Xxxxxxxx'x
resignation on the Effective Date in accordance with the terms set forth herein.
Xxxxxxxx will discontinue any further responsibilities under his employment as
of the close of business on the Effective Date, except that Xxxxxxxx agrees to
provide reasonable cooperation, to the extent deemed necessary by Computone, in
connection with any administrative or legal proceeding which has arisen or may
arise from circumstances occurring during the tenure of Xxxxxxxx'x employment at
Computone.
2. COMPENSATION AND BENEFIT CONTINUATION: Computone agrees to continue to
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pay Xxxxxxxx all of his base compensation and provide all benefits for a period
of six (6) consecutive months following the Effective Date (hereinafter referred
to as the "Payment Period") as required by Article VII(e)(1) of the November 26,
1996 Employment Agreement between Computone and Xxxxxxxx (the "Employment
Agreement"). It is expressly agreed that Xxxxxxxx waives any right to any
commission or bonus contemplated by the Employment Agreement or otherwise.
3. VACATION PAY: Computone agrees to pay Xxxxxxxx all of his accrued
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vacation pay of ninety-one (91) hours through April 3, 1998 ($5,687.50)] within
ten (10) days of the end of the Payment Period.
4. MEDICAL INSURANCE BENEFITS: At the conclusion of the Payment Period,
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Xxxxxxxx shall be offered the opportunity to continue coverage under Computone's
medical insurance plan in accordance with the requirements of the Consolidated
Omnibus Budget Reconciliation Act of 1985 (hereinafter referred to as "COBRA").
In the event that Xxxxxxxx elects to continue medical insurance coverage under
COBRA, Xxxxxxxx shall be responsible for the payment of any monthly premium
associated therewith.
5. LIFE INSURANCE BENEFITS: Computone agrees to maintain Xxxxxxxx'x life
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insurance policy throughout the Payment Period.
6. EXERCISE OF STOCK OPTIONS: The parties acknowledge and agree that, as
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of the Effective Date, Xxxxxxxx had been duly granted, was fully vested and had
the right to purchase 150,000 shares of Computone common stock at an exercise
price of $1.12 1/2 pursuant to the Computone Corporation Amended and Restated
Equity Incentive Plan ("Incentive Plan"). Pursuant to Section VI(E) of the
Incentive Plan, the Compensation Committee has agreed to permit Xxxxxxxx to
exercise his right to purchase all or any portion of the 150,000 shares to which
he is vested at any time between the Effective Date and two (2) year after the
Effective Date in accordance with the terms of such options.
7. INDEMNIFICATION: The parties acknowledge and agree that Xxxxxxxx is
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covered by Article VI of Computone's By-Laws governing indemnification, a copy
of which is attached hereto and expressly incorporated into this Agreement by
reference. The parties further agree that Computone shall pay expenses,
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including expenses and attorneys' fees, incurred by Xxxxxxxx in defending any
civil, criminal, administrative or investigative action, suit or proceeding in
advance of the final disposition of such action, suit or proceeding and within
30 days of the submission by Xxxxxxxx or his attorneys of a statement for
services to be rendered. In accordance with the By-Laws, Xxxxxxxx undertakes to
repay amounts so advanced if it shall be ultimately and finally adjudicated that
Xxxxxxxx is not entitled to be indemnified by Computone as authorized by the By-
Laws or under the Delaware General Corporation Law.
8. NONDISPARAGEMENT AND PUBLICATION: Computone and Xxxxxxxx agree not to
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disparage each other in the future. The parties agree that neither will issue a
press release or any public statement regarding Xxxxxxxx'x resignation from
Computone unless such language is acceptable to both parties. It is agreed that
neither party will make public the terms set forth herein, except as may be
required in any filing required to be made by Computone with the Securities and
Exchange Commission. Computone agrees that it will provide Xxxxxxxx and his
attorneys the opportunity to review and comment upon a draft of the language
which Computone intends to include in any public filing that is necessary or
appropriate relating to Xxxxxxxx'x resignation. Computone agrees to work with
Xxxxxxxx and his attorneys to ensure that such language is acceptable to both
parties. Computone further agrees that any comments made by Computone, its
officers, directors or attorneys', in response to inquiries about Xxxxxxxx'x
resignation, except any inquiry which may be made by the SEC or other public
agency in connection with any current or future investigation, shall be limited
to the information disclosed in such public filings.
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9. RELEASE OF CLAIMS:
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X. XXXXXXXX'X RELEASE OF CLAIMS: In consideration of the promises,
payments and covenants contained in this Agreement, Xxxxxxxx, for himself and
his heirs, executors, administrators and assigns, now and forever releases and
discharges Computone and all of its past and present owners, officers,
directors, stockholders, employees, agents, attorneys, parent corporations,
subsidiaries, affiliates, predecessors, estates, successors and assigns from any
and all claims, actions, charges, causes of action, sums of money due, suits,
debts, covenants, contracts, agreements, promises, demands or liabilities
whatsoever, in law or in equity, which Xxxxxxxx ever had or now has from the
beginning of time up to the date this Agreement is executed except as to any
claim that Xxxxxxxx may make pursuant to or in the event of breach of this
Agreement.
B. COMPUTONE'S RELEASE OF CLAIMS: In consideration of the promises,
payments and covenants contained in this Agreement, Computone, for itself and
all its past and present owners, officers, directors, employees, agents,
attorneys, parent corporations, subsidiaries, affiliates, predecessors, estates,
successors and assigns, now and forever releases and discharges Xxxxxxxx and all
his past and present heirs, executors, administrators, assigns and attorneys
from any and all claims, actions, charges, causes of action, sums of money due,
suits, debts, covenants, contracts, agreements, promises, demands or liabilities
whatsoever, in law or in equity, which Computone ever had or now has from the
beginning of time up to the date this Agreement is executed, except as to any
claim that Computone may make pursuant to or in the event of breach of this
Agreement.
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10. ACKNOWLEDGMENT: This Agreement is executed by the parties
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voluntarily. The parties agree that they have had a full and reasonable
opportunity to consider this Agreement and that they have not been pressured or
in any way coerced into its execution.
11. GOVERNING LAW AND SEVERABILITY: This Agreement and the rights and
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obligations of the parties hereto shall be governed and construed in accordance
with the laws of the State of Georgia. If any provision hereof is enforceable
or is held to be unenforceable, such provisions shall be fully severable, and
this document and its terms shall be construed and enforced as if such
unenforceable provision had never comprised a part hereof, the remaining
provisions hereof shall remain in full force and effect, and a court construing
the provisions shall add as a part hereof a provision as similar in terms and
effect to such unenforceable provision as may be enforceable, in lieu of the
unenforceable provision.
12. INTEGRATION: This Agreement, the Computone By-Laws, including all
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exhibits and attachments thereto and the Incentive Plan, contain all the terms
of the separation agreement by and between the parties and supersede and
invalidate any previous agreements or contracts. No representations,
inducements, promises, or agreements, oral or otherwise, which are not embodied
herein have been made and none shall be of any force or effect.
WHEREFORE, the parties hereto have this Agreement to be signed as of the
Effective Date.
COMPUTONE CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
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XXXXXX X. XXXXXXXX XXXXXXX X. XXXXXX
Chairman
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