May 12, 2020 Via Email Joseph Wytanis Dear Joe:
Exhibit 10.1
May 12,
2020
Via Email
Xxxxxx
Xxxxxxx
Dear
Xxx:
The
purpose of this letter agreement is to set forth our mutual
understanding and agreement with respect to your separation from
employment with Zoom Telephonics, Inc. (the “Company”).
In consideration of the mutual covenants set forth herein, and for
other good and valuable consideration, the receipt and sufficiency
of which you acknowledge, we have agreed as follows:
1.
Separation from Employment.
Your separation from employment shall be effective as of the close
of business May 8, 2020 (your “Separation Date”), and
you shall have relinquished as of that date any and all positions
that you have held with the Company and any of its subsidiaries.
You shall not be considered an employee of the Company for any
purpose after that date.
2.
Final Pay and Benefits. You
agree that you have received all compensation (including but not
limited to bonus payments and vacation payments) and benefits
(including but not limited to non-monetary benefits such as leave
time) to which you are entitled in connection with your employment
through your Separation Date. You agree to make no claims for
further compensation from the Company of any type, including bonus
payments, commission payments, and vacation pay. You agree that the
Company has satisfied (or will satisfy upon making the payments set
forth herein) in full any and all contractual obligations it may
have to you, including but not limited to any such obligations set
forth in your Employment Agreement dated October 4, 2018 (the
“Employment Agreement”).
3.
Equity. The Company and you
agree that: (i) as of the Separation Date, you had 75,000 vested
Company stock options and all unvested equity you had in the
Company was forfeited; and (ii) the terms and conditions of your
vested stock options are governed by the applicable plan document
and grant agreements. Notwithstanding the foregoing, if you timely
sign and return this letter agreement to the Company, do not revoke
it during the seven (7) day revocation period set forth below, and
comply with its terms, all Company stock options that would have
vested had you remained employed during the six (6) month period
following the Separation Date will be immediately vested and,
notwithstanding any provision set forth in the applicable plan
document and grant agreements pursuant to which such options were
granted, exercisable for a period of up to 30 days following the
Separation Date.
4.
Salary Continuation Payments.
The Company shall continue to pay your current base salary (at the
rate of $210,000 per year, less all applicable federal, state or
local tax withholding, F.I.C.A., and any other applicable payroll
deductions) for the six (6) month period following the
Company’s receipt of this letter agreement timely signed by
you and the expiration of the seven (7) day revocation period
below. Such payments shall be made in installments corresponding to
the regular pay periods of the Company and shall be mailed to you
at the address listed above.
5.
Health Insurance Continuation.
At your option, you may continue to be covered under the
Company’s group health insurance plans (in which you were
enrolled as of your Separation Date) for up to eighteen (18) months
after your Separation Date, subject to the terms and conditions
provided for in the Consolidated Omnibus Budget Reconciliation Act
of 1985, as amended (“COBRA”) provided you have timely
and properly elected COBRA coverage in accordance with the
Company’s COBRA election procedures, notice of which shall be
sent to you under separate cover. Subject to the Company’s
receipt of this letter agreement signed by you and the expiration
of the seven (7) day revocation period below, the Company shall, at
your option, pay the full cost of your group medical insurance
premiums during the first six (6) months of your COBRA continuation
period or until such earlier time as you obtain alternate medical
insurance from your new employer, provided you have timely and
properly elected COBRA coverage in accordance with the
Company’s COBRA election procedures, notice of which shall be
sent to you under separate cover. You agree promptly to notify the
Company if and when you become eligible for alternate medical
coverage during this six (6) month period.
6.
One Round-Trip Airfare Between Atlanta
and Boston. Subject to the Company’s receipt of this
letter agreement signed by you and the expiration of the seven (7)
day revocation period set forth below, the Company will reimburse
you (in an amount not to exceed $500) for one economy-class
roundtrip airline ticket between Atlanta and Boston, provided you
book and complete the trip in the thirty (30) day period following the
Separation Date and provided further you submit documentation to
the Company to confirm the cost of such ticket. The reimbursed
amount will be subject to applicable taxes, deductions, and
withholdings.
7.
Business Expenses. The Company
agrees that it will reimburse your reasonable business expenses
incurred prior to the Separation Date, provided you submit such
expenses (along with necessary supporting documentation), within
thirty (30) days of the Separation Date. The Company will determine
what constitutes sufficient supporting documentation for an expense
to be reimbursed.
8.
Unemployment Compensation. The
Company agrees that it shall not contest any good faith claim you
make for unemployment benefits. Of course, the Company may respond
truthfully and provide accurate information if it receives a
request for information from the agency with which you file such a
claim.
9.
Transfer of Responsibilities.
You shall cooperate fully with the Company and its personnel to
provide an orderly transfer of your duties and responsibilities.
This cooperation includes but is not limited to timely compliance
with all reasonable requests for information.
10.
Non-Disparagement. You agree
that you will not, at any time after the date hereof, make any
remarks or comments, orally, in writing, or via social media, which
remarks or comments reasonably could be construed to be derogatory
or disparaging to the Company or any of its shareholders, officers,
directors, employees, attorneys or agents, or which reasonably
could be anticipated to be damaging or injurious to the Company's
reputation or good will or to the reputation or good will of any
person associated with the Company.
11.
Return of Property. You
acknowledge that you have returned to the Company all property of
the Company that is in your possession or under your control,
including, without limitation, any and all files, documents and
other information with respect to the Company’s management,
business operations or customers, including all files, documents,
or other information containing confidential information, and all
computers, telecommunications devices and other equipment and
physical assets.
12.
Affirmation of Your Existing
Obligations. You acknowledge the validity and continuing
applicability of, and agree to abide by, your agreements and
obligations contained in the Employment Agreement, and the
Intellectual Property and Confidentiality Agreement you previously
executed in connection with your employment with the
Company.
13.
Cooperation in Litigation. At
the Company’s request, you agree to assist, consult with, and
cooperate with the Company in any litigation or administrative
procedure or inquiry that involves the Company, subject to
reimbursement for your reasonable out of pocket expenses, such as
travel, meals, or lodging.
14.
Breach of Agreement. You
understand and agree that any breach of your obligations under this
letter agreement will immediately render the Company’s
obligations and agreements hereunder null and void, all rights and
payments pursuant to paragraphs 3, 4 5, and 6 shall immediately
cease, you shall repay to the Company all sums you have been paid
or sums paid on your behalf pursuant to paragraphs 4, 5, and 6, and
all then unexercised stock options for which the vesting was
accelerated pursuant to paragraph 3 shall be cancelled and no
longer be exercisable.
15.
General Release of Company.
You, for yourself and your heirs, legal representatives,
beneficiaries, assigns and successors in interest, hereby knowingly
and voluntarily release the Company, its affiliates, and its
and their successors, assigns, former or current shareholders,
officers, directors, employees, agents, insurers, attorneys and
representatives (“Company Released Parties”) from any
and all causes of action, in law or equity, you now have, may have
or ever had, whether known or unknown, from the beginning of the
world to this date, including, without limitation, any claims under
the Age Discrimination in Employment Act, 29 U.S.C. §621
et seq.; claims for breach
of contract or based on tort; claims for employment discrimination
and wrongful termination; statutory wage and hour claims under
Massachusetts law, including but not limited to, claims for
violation of the Massachusetts Wage Act, and any other statutory,
regulatory or common law causes of action (“the Released
Claims”). You understand that you are releasing claims
pursuant to M.G.L. Chapter 149 including but not limited to claims
for untimely, underpayment, or non-payment of wages, discrimination
and/or retaliation for seeking to enforce your wage and hour
rights, misclassification as an independent contractor, improper
withholdings or deductions, tip or service charge related claims,
and claims pursuant to M.G.L. Chapter 151 relating to minimum wage,
discrimination and/or retaliation for seeking to enforce your
rights under Chapter 151, and/or overtime pay. You hereby acknowledge and
understand that this is a General Release, and that this means you
are giving up your right to xxx the Company Released Parties for
any and all claims, including but not limited to the specific
claims mentioned in this paragraph.
16.
Participation in Agency
Proceeding. You understand that nothing contained in this
letter agreement limits your ability to file a charge or complaint
with the Equal Employment Opportunity Commission, the National
Labor Relations Board, the Occupational Safety and Health
Administration, the Securities and Exchange Commission or any other
federal, state or local governmental agency or commission (each, a
“Government Agency”). You further understand that this
letter agreement does not limit your ability to communicate with
any Government Agency or otherwise participate in any investigation
or proceeding that may be conducted by any Government Agency,
including providing documents or other information, without notice
to the Company. However, you understand and agree that that
although you may engage in such activities, you will not be
entitled to receive any award or damages, to the extent consistent
with applicable law.
17.
Acknowledgment. By signing this
letter agreement, you acknowledge and agree that you understand the
meaning of this letter agreement and that you freely and
voluntarily enter into it and the General Release contained herein.
You agree that no fact, evidence, event, or transaction, whether
known or unknown, shall affect in any manner the final and
unconditional nature of the agreements and releases set forth
herein. You are advised that you have twenty-one (21) days to
consider this letter agreement. You are also advised to consult
with an attorney prior to executing this letter agreement.
You and the Company agree that any
changes to this document, whether material or immaterial, do not
restart the running of the twenty-one (21) day period and that such
period shall continue to run from the date that you first
received this letter agreement. For a period of seven (7)
days after executing this letter agreement, you may revoke this
letter agreement by providing written notice of said revocation to
Xxxxx XxXxxxx at xxxxxxxx@xxxx.xxx, and this letter agreement shall
not become effective or enforceable until said seven (7) day period
has expired.
18.
Miscellaneous. This letter
agreement shall be construed in accordance with the laws of The
Commonwealth of Massachusetts without regard to choice or conflict
of law principles. In the event that any provision contained in
this letter agreement is declared invalid, illegal or unenforceable
for any reason by any court of competent jurisdiction, and cannot
be modified to be enforceable, excluding the general release
language above, such provision shall immediately become null and
void, leaving the remainder of this letter agreement in full force
and effect. However, if any portion of the general release language
is ruled to be unenforceable for any reason, this entire letter
agreement shall be deemed null and void. To avoid any possible
misunderstanding, the Company intends this letter agreement to be a
comprehensive statement of the terms of your separation. This
letter agreement supersedes any prior understanding or statement
made to you by the Company regarding your positions with the
Company or your arrangements with the Company for the period after
your separation. For the same reason, any modifications or waiver
of the terms set forth in this letter agreement must be in writing
and signed by you and by me on behalf of the Company.
Please
indicate your agreement to the terms of this letter agreement by
signing and dating the last page of the enclosed copy of this
letter agreement, and return it to me not later than the close of
business on June 3, 2020, which you acknowledge to be more than
twenty-one (21) days from the date of your receipt of this letter
agreement.
Sincerely,
/s/
Xxxxx XxXxxxx
Xxxxx
XxXxxxx
Director, Human
Resources
By
signing this letter agreement, I acknowledge and agree that I
understand the meaning of this letter agreement and that I freely
and voluntarily enter into it and the General Release contained
herein. I agree that no fact, evidence, event, or transaction,
whether known or unknown, shall affect in any manner the final and
unconditional nature of the agreements and releases set forth
herein.
AGREED
TO AND EXECUTED UNDER SEAL THIS 15th day of May, 2020.
/s/ Xxxxxx Xxxxxxx
Xxxxxx
Xxxxxxx
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