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EXHIBIT 10.58
SETTLEMENT AGREEMENT AND
FULL AND FINAL RELEASE OF CLAIMS
This Settlement Agreement and Full and Final Release of Claims
("Agreement") is made and entered into between Xxxxxx X. Xxxxxx ("Xx. Xxxxxx")
and Verilink Corporation ("Verilink").
1. SEVERANCE. Xx. Xxxxxx and Verilink have agreed to end their
employment relationship in a manner such that Xx. Xxxxxx'x employment with
Verilink will end effective March 2, 2001 ("Effective Separation Date").
2. CONSIDERATION. In consideration of his decision to enter into
this Agreement, Verilink will provide Xx. Xxxxxx with the following:
(a) The continuation of his current salary for a period
of six (6) months from Xx. Xxxxxx'x Effective Separation Date. In the
alternative, Verilink may at any time choose to pay Xx. Xxxxxx a lump sum
payment equal to the outstanding balance of his remaining salary. All such
payments are subject to the applicable legal withholdings.
(b) The continuation of the coverage currently in effect
for Xx. Xxxxxx and Xx. Xxxxxx'x covered dependents under the medical, dental and
vision plans for a period of six (6) months from his Effective Separation Date.
(c) The right to exercise any vested stock options for a
period of ninety (90) days following Xx. Xxxxxx'x Effective Separation Date,
pursuant to Verilink's current Stock Option Plan.
(d) Whether or not Xx Xxxxxx executes this Agreement, the
payment of any accrued, but unused, paid-time-off, as soon as administratively
feasible after his Effective Separation Date or within a reasonable period after
this Agreement becomes binding and effective, whichever is later. All such
payments are subject to the applicable legal withholdings. Paid Time Off will
not accrue following Xx. Xxxxxx'x effective separation date.
3. NO OBLIGATION. Xx. Xxxxxx agrees and understands that
the consideration described in Paragraph 2 above is not required by Verilink's
policies and procedures or by any prior agreement between Verilink and Xx.
Xxxxxx.
4. FULL AND FINAL RELEASE. In consideration of the
payments being provided to him above, Xx. Xxxxxx, for himself, his attorneys,
heirs, executors, administrators, successors and assigns, fully, finally and
forever releases and discharges Verilink, all subsidiary and/or affiliated
companies, as well as its and their successors, assigns, officers, owners,
directors, agents, representatives, attorneys, and employees (all of whom are
referred to throughout this Agreement as "Verilink"), of and from all claims,
demands, actions, causes of action, suits, damages, losses, and expenses, of any
and every nature whatsoever, as a result of actions or omissions occurring
through the effective date of this Agreement. Specifically
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included in this waiver and release are, among other things, any and all claims
for severance pay benefits under the Employee Retirement Income Security Act of
1974 (ERISA), any and all claims of alleged employment discrimination, either as
a result of the separation of Xx. Xxxxxx'x employment, or otherwise, under the
Age Discrimination in Employment Act, the Older Workers' Benefit Protection Act;
Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act,
any other federal, state or local statute, rule, ordinance, or regulation, as
well as any claims for alleged wrongful discharge, negligent or intentional
infliction of emotional distress, breach of contract, fraud, or any other
unlawful behavior, the existence of which is specifically denied by Verilink.
Nothing in this Agreement and Release, however, is intended to waive Xx.
Xxxxxx'x entitlement to vested benefits under any pension or 401(k) plan or
other benefit plan provided by Verilink. Finally, the above release does not
waive claims that Xx. Xxxxxx could make, if available, for unemployment or
workers' compensation.
5. NO OTHER CLAIMS. Xx. Xxxxxx represents that he has not filed,
nor assigned to others the right to file, nor are there pending, any complaints,
charges or lawsuits against Verilink with any governmental agency or any court,
and that he will not file, nor assign to others the right to file, or make any
further claims against Verilink at any time for actions or omissions covered by
the release in Paragraph 4 above.
6. OWNERSHIP AND PROTECTION OF PROPRIETARY INFORMATION.
(a) Confidentiality. All Confidential Information and
Trade Secrets, as defined below, and all physical embodiments thereof received
or developed by Xx. Xxxxxx while employed by Verilink are confidential to and
are and will remain the sole and exclusive property of Verilink. Such
Confidential Information and/or Trade Secrets includes, but is not limited to,
those developed in conjunction with the Boston initiative and with the Boston
University Photonics Center and Beacon Telco project(s). Xx. Xxxxxx will hold
such Confidential Information and Trade Secrets in trust and strictest
confidence, and will not use, reproduce, distribute, disclose or otherwise
disseminate the Confidential Information and Trade Secrets or any physical
embodiments thereof and may in no event take any action causing or fail to take
the action necessary in order to prevent, any Confidential Information and Trade
Secrets disclosed to or developed by Xx. Xxxxxx to lose its character or cease
to qualify as Confidential Information or Trade Secrets. This provision is in
addition to and is not intended to supercede the Employee Proprietary
Information and Inventions Agreement ("Proprietary Information Agreement"),
executed by Xx. Xxxxxx on December 14, 1998, which is incorporated herein and
attached as Exhibit A. Nothing in this Agreement, including Paragraph 13, is
intended to modify that Proprietary Information Agreement.
(i) "Confidential Information" means data and information
relating to the Business of the Company (which does not rise to the status of a
Trade Secret) which is or has been disclosed to Xx. Xxxxxx or of which Xx.
Xxxxxx became aware as a consequence of or through his employment relationship
with Verilink and which has value to Verilink and is not generally known to its
competitors. Confidential Information shall not include any data or information
that has been voluntarily disclosed to the public by Verilink (except where such
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public disclosure has been made by Xx. Xxxxxx without authorization) or that has
been independently developed and disclosed by others, or that otherwise enters
the public domain through lawful means.
(ii) "Trade Secrets" means information including, but not
limited to, technical or nontechnical data, formulas, patterns, compilations,
programs, devices, methods, techniques, drawings, processes, financial data,
financial plans, product plans or lists of actual or potential customers or
suppliers which (a) derives economic value, actual or potential, from not being
generally known to, and not being readily ascertainable by proper means by,
other persons who can obtain economic value from its disclosure or use, and (b)
is the subject of efforts that are reasonable under the circumstances to
maintain its secrecy.
(c) Return of Company Property. Xx. Xxxxxx will promptly
deliver to Verilink all property belonging to Verilink, including, without
limitation, all Confidential Information and Trade Secrets (and all embodiments
thereof) then in Xx. Xxxxxx'x custody, control or possession.
(d) Survival. The covenants of confidentiality set forth
in this Paragraph will apply as of the date Xx. Xxxxxx executes this Agreement
to any Confidential Information and Trade Secrets previously disclosed by
Verilink or developed by Xx. Xxxxxx during the course of his employment with
Verilink. The covenants restricting the use of Confidential Information will
continue and be maintained by Xx. Xxxxxx for a period of two (2) years following
the date of execution of this Agreement. The covenants restricting the use of
Trade Secrets will continue and be maintained by Xx.Xxxxxx following execution
of this Agreement for so long as permitted by the Alabama law.
7. AGREEMENT NOT TO SOLICIT CUSTOMERS OR EMPLOYEES.
(a) Agreement Not to Solicit Customers or Consultants.
Xx. Xxxxxx agrees that beginning immediately and continuing for a period of one
year from his Effective Separation Date, he will not, either directly or
indirectly, on his own behalf or in the service of or on behalf of others, (1)
solicit, divert, or appropriate or attempt to solicit, divert, or appropriate to
any third party, any individual or entity which was an actual or actively sought
prospective client, customer, or consultant of Verilink (determined at the date
Xx. Xxxxxx was last employed by Verilink and continuing for a period of one year
from his Effective Separation Date ) and with whom Xx. Xxxxxx had material
contact during Xx. Xxxxxx'x last two (2) years of employment with Verilink; or
(2) interfere in any way with Verilink's business relationship with any person
or entity.
(b) Agreement Not to Solicit Employees. Xx. Xxxxxx agrees
that beginning immediately, and continuing for a period of one year from his
Effective Separation Date, he will not, either directly or indirectly, on his
own behalf or in the service of or on behalf of others, solicit, divert or hire,
or attempt to solicit, divert or hire, any person employed by Verilink, and
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whom Xx. Xxxxxx supervised or hired on behalf of Verilink, whether or not such
employee is a full-time employee or a temporary employee of Verilink and whether
or not such employment is pursuant to written agreement and whether or not such
employment is for a determined period or is at will. This provision is not
intended to prohibit Xx. Xxxxxx from employing a former Verilink employee so
long as he did not in any way solicit, encourage or otherwise cause that
employee to leave Verilink.
8. NON-DISPARAGEMENT. Xx. Xxxxxx agrees that he has not and will
not make statements to clients, customers and suppliers of Verilink or to other
members of the public that are in any way disparaging or negative towards
Verilink, Verilink's products or services, or Verilink's representatives or
employees.
9. NON-ADMISSION OF LIABILITY OR WRONGFUL CONDUCT. This Agreement
shall not be construed as an admission by Verilink of any liability or acts of
wrongdoing or discrimination, nor shall it be considered to be evidence of such
liability, wrongdoing, or discrimination.
10. COMPLETE TERMINATION OF EMPLOYMENT RELATIONSHIP. Except as set
forth above, Xx. Xxxxxx and Verilink agree as a matter of intent that, except
for vested pension benefits, if any, this Agreement terminates all aspects of
the relationship between them for all time and that Xx. Xxxxxx will not
represent himself as an officer or employee of Verilink after the Effective
Separation Date. Xx. Xxxxxx therefore acknowledges that he does not and will not
seek reinstatement, future employment, or return to active employee status with
Verilink or any subsidiary or affiliated company. Xx. Xxxxxx further
acknowledges that neither Verilink nor any subsidiary or affiliated company
shall be under any obligation whatsoever to consider him for reinstatement,
employment, re-employment, consulting or other similar status at any time. This
provision will not preclude Xx. Xxxxxx from contracting with Verilink on behalf
of another company that has employed him. It also will not preclude Verilink in
the future from considering Xx. Xxxxxx for a position, either upon request or
otherwise, although Verilink cannot be compelled to consider Xx. Xxxxxx for or
to provide Xx. Xxxxxx with any position at any time.
11. CONFIDENTIALITY. The nature and terms of this Agreement are
strictly confidential and they have not been and shall not be disclosed by Xx.
Xxxxxx at any time to any person other than his lawyer, his accountant, or his
immediate family without the prior written consent of an officer of Verilink,
except as necessary in any legal proceedings directly related to the provisions
and terms of this Agreement, to prepare and file income tax forms, or pursuant
to court order after reasonable notice to Verilink.
12. GOVERNING LAW. This Agreement shall be interpreted under the
laws of the State of Alabama.
13. SEVERABILITY. The provisions of this Agreement are severable,
and if any part of this Agreement except Paragraph 4 is found by a court of law
to be unenforceable, the remainder of the Agreement will continue to be valid
and effective. If Paragraph 4 is found by a
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court of competent jurisdiction to be unenforceable, the parties agree to seek a
determination by the court as to the rights of the parties, including whether
Xx. Xxxxxx is entitled under those circumstances and the relevant law to retain
the benefits paid to him under the Agreement.
14. SOLE AND ENTIRE AGREEMENT. This Agreement sets forth the
entire agreement between the parties. Any prior agreements between or directly
involving the parties to the Agreement are superseded by the terms of this
Agreement and thus are rendered null and void. However, any noncompete
agreements or prior agreements between the parties related to inventions,
business ideas, and confidentiality of corporate information remain intact.
15. NO OTHER PROMISES. Xx. Xxxxxx affirms that the only
consideration for him signing this Agreement is that set forth in Paragraph 2,
that no other promise or agreement of any kind has been made to or with him by
any person or entity to cause him to execute this document, and that he fully
understands the meaning and intent of this Agreement, including, but not limited
to, its final and binding effect.
16. REMEDIES. Xx. Xxxxxx agrees that the covenants and agreements
contained in Sections 6 and 7 hereof are of the essence of this Agreement; that
each such covenant is reasonable and necessary to protect and preserve the
interests and properties of Verilink; that Xx. Xxxxxx has access to and
knowledge of Verilink's business and financial plans; that irreparable loss and
damage will be suffered by Verilink should Xx. Xxxxxx breach any such covenant
and agreement; that each such covenant and agreement is separate, distinct and
severable not only from the other of such covenants and agreements but also from
the other and remaining provisions of this Agreement; that the unenforceability
of any such covenant or agreement shall not affect the validity or
enforceability of any other such covenant or agreement or any other provision or
provisions of this Agreement; and that, in addition to other remedies available
to it, Verilink shall be entitled to specific performance of this Agreement and
to both temporary and permanent injunctions to prevent a breach or contemplated
breach by Xx. Xxxxxx of any of the covenants or agreements.
17. ADVICE OF COUNSEL. Xx. Xxxxxx acknowledges that he has been
advised by Verilink to consult with an attorney in regard to this matter. He
further acknowledges that he has been given twenty-one (21) days from the time
that he receives this Agreement to consider whether to sign it. If Xx. Xxxxxx
has signed this Agreement before the end of this twenty-one (21) day period, it
is because he freely chose to do so after carefully considering its terms.
Finally, Xx. Xxxxxx shall have seven (7) days from the date he signs this
Agreement to change his mind and revoke the Agreement. If Xx. Xxxxxx does not
revoke this Agreement within seven days of his signing, this Agreement will
become final and binding on the day following such seven-day period.
18. SIGNATURE. The Agreement may be signed in counterpart and/or
through the use of facsimile signatures without effecting its binding nature or
effectiveness.
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19. LEGALLY BINDING AGREEMENT. Xx. Xxxxxx understands and
acknowledges that (a) that this is a legally binding release; (b) that by
signing this Agreement, he is hereafter barred from instituting claims against
Verilink in the manner and to the extent set forth in Paragraph 4 and Paragraph
5 above; and (c) that this Agreement is final and binding.
PLEASE READ CAREFULLY. THIS AGREEMENT INCLUDES
A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
Date: 03/02/01 /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
FOR: VERILINK CORPORATION
Date: 03/02/01 By: /s/ Xxxxx X. Xxxxxxxx
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Full Name
VP, HR
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