Exhibit 10.1
AGREEMENT AND MUTUAL RELEASE
OF XXXXX X. XXXXXXXX
This Agreement and Mutual Release ("Agreement") is effective as of July
22, 2003 (the "Effective Date") by and between XXXXX X. XXXXXXXX (hereinafter
referred to as "Employee") and TERREMARK WORLDWIDE, INC. (hereinafter referred
to collectively with all of its subsidiaries and affiliates and defined as the
"Company").
WHEREAS, Employee and the Company (collectively "The Parties") have
mutually agreed that it is in their respective best interests to amicably modify
their employment relationship, as provided herein.
NOW, THEREFORE, in consideration of the acts, payments, covenants and
mutual agreements herein described and agreed to be performed, the receipt and
sufficiency of which are hereby acknowledged, Employee and the Company agree as
follows:
1. TERMINATION OF EMPLOYMENT AGREEMENT. Employee hereby resigns Employee's
positions with the Company and all subsidiaries as of the Effective
Date, although Employee remains employed pursuant to this Agreement.
The Parties agree that the Employment Agreement between Employee and
Company dated as of November 5, 2002 (the "Employment Agreement") and
all other oral, written, contracts, understandings, promises,
agreements, memoranda, commitments and representations (excluding only
any agreements between the Company and Employee related to stock
options or obligations of indemnity) are hereby void, and of no effect,
and rendered a nullity and vitiated and terminated as of the Effective
Date, with no terms thereof surviving except as set forth in Section 6
below and herein in this Agreement. Employee represents that as of the
date of execution hereof, Employee has returned to the Company all
Company property, including but not limited to all copies of business
plans, proposals, contracts, sales forecasts, brochures, forms or trip
reports, whether in tangible or electronic form. The Company expressly
agrees that Employee can retain his laptop and desktop computers and
cellular telephone (the "Retained Property"), and hereby transfers
title and ownership of the Retained Property to Employee.
2. EMPLOYEE SERVICES.
a. Employee agrees to accept "Continued Employment" as a Senior
Strategic Advisor to render strategic planning services (the
"Services") to the Company from time to time upon the
reasonable written request of the Chief Executive Officer of
the Company for a period of 12 months from July 22, 2003 (the
"Continued Employment Period"). Employee shall not have to
perform Services for more than 40 hours in any one month, and
the Services shall be rendered at reasonable, mutually agreed
upon times. Company will not provide Employee with office
space during the Continued Employment Period. Employee is not
required to spend any time in, or at, any Company siteor to
travel in order to perform the Services. At the expiration or
termination by the Employee of the Continued Employment
Period, Employee shall execute and deliver to the Company the
Separation Agreement and Release attached hereto as Exhibit 1.
b. During the Continued Employment Period, Employee may refer to
Employee's position as "Senior Strategic Advisor", and agrees
to act and represent the Company if and only as the Chief
Executive Officer and Employee may
mutually agree in writing signed by both of them, from time to
time, including, but not limited to: contacts with media;
contacts with Company employees; or attending meetings,
events, seminars or any other public or private functions on
behalf, or purportedly on behalf of the Company.
3. COMPENSATION.
a. The Company irrevocably agrees, during the Continued
Employment Period, to continue to: (i) pay Employee $9615.38
as base salary on a biweekly basis, through July 22, 2004 (the
"Salary"); (ii) withhold applicable taxes on behalf of
Employee; and (iii) provide all benefits Employee was
receiving immediately prior to the execution of this
Agreement, including all medical and dental coverage, various
AFLAC and disability insurance coverage, and 401K
participation, except that Employee shall not be eligible for
any vacation benefits or any bonus that the Company may pay to
its employees.
b. As additional compensation for, including but not limited, to
past performance and any future bonus, the Company has granted
to Employee options to purchase 2,685,000 shares of the
Company's common stock pursuant to the Terremark Worldwide,
Inc. Non-Qualified Stock Option Agreements for Xxxxx X.
Xxxxxxxx executed by the Company concurrent with the execution
of this Agreement that contain certain restrictions on the
transfer of the shares that underlie the Options (the "New
Option Agreements"). In addition, the Company has amended two
of the Employee's pre-existing Stock Option Agreements (the
"Amended Option Agreements"). Collectively, the New Option
Agreements and the Amended Option Agreements are referred
herein as the "Stock Option Agreements." Employee agrees the
Stock Option Agreements shall be automatically rescinded and
be rendered null and void if he revokes this Agreement
pursuant to Section 5.
c. It is understood that during the Continued Employment Period,
the Company will, if asked, confirm that the Company employs
Employee. The Company will make an announcement on July 30,
2003 about Employee's change in position stating that Employee
has stepped down as Executive Vice President and Chief
Operating Officer.
d. After the Continued Employment Period, inquiries made related
to the Employee of Employee's work with the Company will be
responded to in a manner that is consistent with corporate
policy of verifying only the fact of employment, the positions
and the length of service. The Employee may seek personal
references within the Company with whom Employee feels
comfortable.
e. Employee and the Company agree that neither party will at any
time defame the other (including the Company's directors,
shareholders and/or employees) to third parties. Both the
Employee and the Company each agree that the Employee's
Continued Employment and subsequent departure will be
categorized as a mutual decision that was amicable and that
the Employee was in good standing. Notwithstanding the
prohibition in the preceding sentence, each party shall
respond accurately and fully to any question, inquiry, or
request for information when required by legal process, or
when posed by a governmental entity.
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4. RELEASE AND COVENANT NOT TO XXX.
a. Employee for himself, his spouse and his issue, executors,
administrators and assigns to the extent claiming by through
or under him, hereby forever releases, discharges, cancels,
waives, and acquits the Company and any and all of its
affiliates, subsidiaries, corporate parents, agents,
directors, officers, employees, attorneys, successors and
assigns or any one or entity related or affiliated to any of
the foregoing, individually, as well as in their respective
capacities in connection with the Company, of and from any and
all rights, claims, demands, causes of action, obligations,
damages, penalties, fees, costs, expenses, and liability of
any nature whatsoever, whether in law or equity, whether known
or unknown, whether suspected or not including all oral and
written contracts, agreements, memoranda, understandings
except those specifically provided for in Section 6 of this
Agreement ("Employee Claims"), which Employee has, had or may
hereafter have against them, or any of them arising out of, or
by reason of, any cause, matter, or thing whatsoever existing
as of the date of execution of this Agreement, other than for
Employee Claims arising under or pursuant to this Agreement.
b. THIS FULL WAIVER OF ALL EMPLOYEE CLAIMS includes, without
limitation, except as aforesaid, attorney's fees, any claims,
demands, or causes of action arising out of, or relating in
any manner whatsoever to, the employment and/or termination of
the employment of Employee by the Company, such as, BUT NOT
LIMITED TO, any charge, claim, lawsuit or other proceeding
arising under the Civil Rights Act of 1866, 1964, 1991, Title
VII as amended by the Civil Rights Act of 1991, the Americans
With Disabilities Act, the Age Discrimination in Employment
Act (ADEA), the Labor Management Relations Act (LMRA), the
Employee Retirement Income Security Act (ERISA), the
Consolidated Omnibus Budget Reconciliation Act, the Fair Labor
Standards Act (FLSA), the Equal Pay Act, the Rehabilitation
Act of 1973, the Older Workers Benefit Protection Act, the
Family and Medical Leave Act of 1993, Worker's Compensation
Claims, or any other constitutional, federal, state, county,
or local statute, or any contract, agreement, plan or policy.
Employee further covenants and agrees not to institute, nor
cause to be instituted, any legal proceeding, including filing
any claim or complaint with any government agency alleging any
violation of law or public policy against the Company and/or
any and all of its affiliates, subsidiaries, corporate
parents, directors, agents, officers, owners, employees,
successors and assignees or any one or any entity related or
affiliated with any of the foregoing premised upon any legal
theory or claim whatsoever, including without limitation,
contract, tort, wrongful discharge, personal injury,
interference with contract, breach of contract, defamation,
negligence, infliction of emotional distress, fraud, or
deceit, except to enforce the terms of this Agreement.
c. Employee acknowledges that the considerations afforded him
under this Agreement, including the payments, indemnifications
and considerations described in Section 3 above and in other
sections of this Agreement, are in full and complete
satisfaction of any claims Employee may have, or may have had
relating to the Company, including any arising out of his
employment with the Company (or any subsidiary) or the
termination thereof. Employee represents that there are no
charges or claims filed or pending before any agency or court
relating to Employee' employment with the Company. Employee
represents that as of the date of execution of this Agreement,
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Employee is not aware of and does not have any workers
compensation claims or injuries and has no other claims
pending.
d. Company for itself, and its agents, directors, officers,
employees, attorneys, successors and assigns to the extent
they may claim by through or under the Company, and Xxxxxx X.
Xxxxxx, individually, hereby forever releases, discharges,
cancels, waives, and acquits the Employee and his spouse and
his issue, both in respect of claims by through or under
Employee and in their individual capacities, of and from any
and all known rights, claims, demands, causes of action,
obligations, damages, penalties, fees, costs, expenses, and
liability of any nature whatsoever, whether in law or equity,
whether known or unknown, whether suspected or not ("Company
Claims"), which Company has, had or may hereafter have against
them, or any of them arising out of, or by reason of, any
cause, matter, or thing whatsoever existing as of the date of
execution of this Agreement, other than for Company Claims
arising under or pursuant to this Agreement.
5. TIME PERIOD OF CONSIDERING OR CANCELING THIS AGREEMENT. Employee
acknowledges that Employee has been offered a period of time of at
least twenty-one (21) days to consider whether to sign this Agreement,
which Employee hereby waives, and the Company agrees that Employee may
cancel this Agreement at any time during the seven (7) days following
the date on which this Agreement has been signed by all parties to this
Agreement. In order to cancel or revoke this Agreement, Employee must
deliver to the Company at 0000 Xxxxx Xxxxxxxx Xxxxx, 0xx Xxxxx, Xxxxx
XX 00000, attention Employee Relations, written notice stating that
Employee is canceling or revoking this Agreement. If this Agreement is
timely canceled or revoked, none of the provisions of this Agreement
shall be effective or enforceable and the Company shall not be
obligated to make the payments to Employee or to provide Employee with
the other benefits described in this Agreement, and the Stock Option
Agreements shall be automatically rescinded and be rendered null and
void.
6. SURVIVAL OF TERMS FROM CERTAIN AGREEMENTS.
a. Article 6 of the Employment Agreement ("Article 6") shall
survive as provided for in the Employment Agreement; except
that section 6.1 of Article 6 regarding non-competition shall
be in effect until and expire at the end of the July 22, 2004
and the reference therein regarding termination by "the
Company without Cause" or by "the Executive for Good Reason"
shall not apply to this Agreement. Employee acknowledges and
agrees that (i) the obligations of nondisclosure (6.2) and
nonsolicitation (6.3) in Article 6 shall apply during the
Continued Employment Period; and (ii) any time period
referenced in Article 6, except as modified herein regarding
Section 6.1, shall commence running upon the expiration or
termination by the Employee of the Continued Employment
Period.
b. The "Highly Confidential Non-Disclosure Agreement" relating to
work with the United States Government shall survive the
expiration or termination by the Employee of this Agreement;
and
c. The Stock Option Agreements referenced in Section 3 hereof
shall also survive the expiration or termination by the
Employee of this Agreement, but not its revocation pursuant to
Section 5 above.
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d. The Separation Agreement and Release to be provided upon
completion of the Continued Employment (attached hereto as
Exhibit 1).
7. RELIANCE. Employee warrants and represents that: (i) Employee has
relied on his own judgment regarding the consideration for and language
of this Agreement; (ii) Employee has been given a reasonable period of
time to consider this Agreement, has been advised to consult with
counsel of Employee's own choosing before signing this Agreement, and
has consulted with independent counsel; (iii) Employee is relying on
Employee's independent counsel's legal advice after counsel explained
all of the terms of this Agreement to Employee; (iv) Employee has not
relied on any oral or written representations made to Employee in
connection with the negotiation of this Agreement; (v) the Company has
not in any way coerced or unduly influenced Employee to execute this
Agreement; and (vi) this Agreement is written in a manner that is
understandable to Employee and Employee has read and understood all
paragraphs of this Agreement.
8. NATURE OF THE AGREEMENT. This Agreement and all provisions thereof,
including all representations and promises contained herein, are
contractual and not a mere recital and shall continue in permanent
force and effect. Except as provided in Sections 3 and 6, above, this
Agreement constitutes the sole and entire agreement of the parties with
respect to the subject matter hereof, superseding all prior agreements
and understandings between The Parties, and there are no agreements of
any nature whatsoever between The Parties hereto except as expressly
stated herein. This Agreement may not be modified or changed unless
done so in writing, signed by both parties. No modification to this
Agreement nor any failure or delay in enforcing any term, exercising
any option or requiring performance shall be binding or construed as a
waiver unless agreed to in writing by the parties. In the event that
any portion of this Agreement is found to be unenforceable for any
reason whatsoever, the unenforceable provision shall be considered
severable, and the remainder of the Agreement shall continue to be in
full force and effect. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida without
regard to choice of law principles. The Parties agree that they have
jointly participated in the drafting of this Agreement, and should any
provision of this agreement require interpretation or construction, no
presumption regarding construction of the document shall apply against
one party.
9. NO ADMISSION OF LIABILITY. Nothing contained in this Agreement shall be
construed in any manner as an admission by any party that they have
violated any statue, law or regulation, or breached any contract or
agreement. Employee acknowledges and agrees that, in the event of a
breach or threatened breach of any of the foregoing provisions, Company
will have no adequate remedy in damages and, accordingly, shall be
entitled to injunctive relief against such breach or threatened breach;
provided, however, that no specification of a particular legal or
equitable remedy shall be construed as a waiver, prohibition or
limitation of any legal or equitable remedies in the event of a breach
hereof.
10. ATTORNEYS' FEES. If any litigation is commenced between the parties
hereto concerning this Agreement, or the rights and duties of the
parties in relation to this Agreement, the party prevailing in such
litigation shall be entitled, in addition to such other relief as may
be granted, to a reasonable sum for attorneys' fees in connection with
such litigation, which sum shall be determined by the trier of fact in
such litigation or arbitration or in a separate action brought for that
purpose.
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11. SEVERABILITY. The unenforceability of any provision of this Agreement
shall not affect the enforceability of any other provision, and this
Agreement shall be construed in all respects as if such unenforceable
provisions were omitted.
12. FACSIMILE SIGNATURES. Facsimile signatures of this Agreement shall
constitute and be accepted as original signatures that shall be binding
on the party executing the Agreement.
TERREMARK WORLDWIDE, INC. By: /s/ Xxxxx X. Xxxxxxxx
----------------------------------
Xxxxx X. Xxxxxxxx
By: /s/ Xxxx X. Xxxxxxx Date: July 29, 2003
--------------------------------
Name: Xxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
Date: July 29, 2003
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Xxxxxx X. Xxxxxx
(in his individual capacity in connection
with Section 4(d) only.)
Date: July 29, 2003
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EXHIBIT 1
SEPARATION AGREEMENT AND RELEASES
It is understood and agreed by and between Terremark Worldwide, Inc.
its subsidiaries, affiliates and successors, and their officers, directors,
employees, shareholders, owners, agents and attorneys, and any who take their
place (hereinafter "the Company") and Xxxxx X. Xxxxxxxx, his spouse, his issue,
and anyone claiming by, through or for him (hereinafter "Employee") that the
foregoing Parties (hereafter collectively referred to as "The Parties") have
ended their relationship as Employer and Employee effective ____________________
________________________, 2004 ("Effective Date of Termination"). In view of the
foregoing, the Company and Employee hereby agree to the following:
1. Employee and the Company have agreed that Employee's employment
pursuant to Agreement and Mutual Release of Xxxxx X. Xxxxxxxx dated as of July
22, 2003, with the Company terminated on the Effective Date of Termination.
Employee acknowledges that he has received all wages and benefits and rights due
to him through the Effective Date of Termination. Now, therefore, the only
payments, benefits, or other things of value to which Employee is entitled to
receive directly from the Company are those set forth in this Agreement.
2. In return for the consideration and benefits, which are set forth
below, Employee is willing to waive all of his rights to continued or future
employment, and to waive certain claims, past rights, and future rights arising
out of the employment relationship, all as set forth in detail below.
3. In consideration for entering into this Agreement, it is understood
and agreed that Employee has received the consideration set forth in the
Agreement and Mutual Release of Xxxxx X. Xxxxxxxx dated as of July 22, 2003.
4. Employee hereby releases the Company, its affiliates, parents,
subsidiaries, or related entities, and any who take their place or work for the
foregoing, their officers, agents, attorneys, and employees and any who take
their place from any and all past or present causes of action, suits,
agreements, or claims, from the beginning of the world to the date of this
Agreement, whether or not they are presently known to exist, that Employee has
or may have against the Company arising out of Employee's employment with the
Company and/or the separation of employment with the Company, but excluding any
claims under or obligations of the Agreement and Mutual Release of Xxxxx X.
Xxxxxxxx dated as of July 22, 2003. Employee understands that this release
covers, among other things, claims, or rights arising under Constitutional,
federal, state, county, local, municipal, or common laws (including tort and
oral contract claims). This release also covers, among other things, claims of
unlawful discrimination under such laws including, but not limited to age
discrimination claims under the Age Discrimination in Employment Act of 1967,
and sex, sexual harassment, color, national origin, race, and retaliation
claims, among others, under Title VII of the Civil Rights Act of 1964 (as
amended), claims under the Family Medical Leave Act, the Americans with
Disabilities Act, state and federal Whistleblower Acts, the Immigration Reform
and Control Act of 1986, the Occupational Safety and Health Act, the Equal Pay
Act of 1963, the Wage and Hour Act, the Employee Retirement Income Security Act,
the Consolidated Omnibus Budget Reconciliation Act, and the
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foregoing and any and all federal, state, county, local, or municipal civil
rights, disability, wage, equal pay, labor, or employment acts or laws, as
amended. This release also covers, among other things, claims of wrongful
termination of employment. Furthermore, Employee waives and relinquishes such
rights on behalf of any and all of his dependents, relatives, heirs, survivors
or assigns or those claiming by or through him. This is not a complete list, and
Employee waives, releases, and discharges, all other rights and claims Employee,
or anyone arguably claiming by or through him, has or may have under any and all
other federal, state, and local laws, regulations, and ordinances of any kind,
including claims for failure to obtain re-employment, reinstatement, or future
employment, and for retaliation. This release does not cover any rights or
claims based on things that happen after the date of this Agreement.
5. This Agreement was mutually negotiated and is mutually acceptable to
the Parties, who dealt with each other at arms-length. Both the Company and
Employee have had an opportunity to review the Agreement prior to signing it.
Employee was advised to obtain, and afforded the opportunity to consult with,
legal counsel or other representative, of his choice and have such counsel or
representative review this document before it is signed by Employee.
6. Employee acknowledges that this document does not constitute an
admission by the Company of any unlawful act or of any violation of any
ordinance, statute, regulation, or other provision of statutory, regulatory, or
common law.
7. The Parties agree that if any clause or provision herein is deemed
by a court of competent jurisdiction to be illegal, invalid or unenforceable,
the legality, validity and enforceability of the remaining parts, terms, or
provisions shall not be affected thereby, and the remainder of this Agreement
shall remain in full force and effect.
8. Employee acknowledges that on _________________, the Company gave
Employee an unsigned copy of this Agreement and informed Employee that Employee
had 21 days from that date to consider it before signing.
9. Employee also acknowledges that the Company has informed Employee
that for a period of seven days after the date upon which Employee signs this
Agreement, Employee may revoke it. Employee further acknowledges understanding
that if Employee revokes this Agreement, Employee will lose all benefits of this
Agreement.
10. This Agreement when executed, together with the Agreement and
Mutual Release executed by the Parties and effective as of July 22, 2003, covers
all understandings between the Company and Employee relating to Employee's
employment with and separation from employment with the Company. Excluding the
Agreement and Mutual Release, no other expressed or implied, written or oral
agreement between the Company and Employee relating to Employee's employment
and/or separation from employment with the Company will have any effect, unless
it is in writing and is signed and dated by both Parties after the date of the
Agreement.
11. Employee, by signature below, acknowledges that Employee has
carefully read and considered the contents of this Agreement, and that Employee
fully understands all of its provisions and is voluntarily, willingly and
knowingly entering into this Agreement.
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12. Notwithstanding anything contained herein to the contrary, this
Separation Agreement and Release has no impact on and does not in way void,
modify or alter any written agreement between the parties related to stock
options or obligations of indemnity.
DATED this _____ day of _______________________, 2004.
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Witness Xxxxx X. Xxxxxxxx, Employee
----------------------------
Witness
SWORN TO AND SUBSCRIBED BEFORE me this _____________ day of
_______________________________, 2004 by Xxxxx X. Xxxxxxxx, who is personally
known to me or who has produced ____________________________________ as
identification.
------------------------------------------------
Type/Print Name of Notary: ____________________
Commission Number : ____________________________
Commission expires: ___________________________
Terremark Worldwide, Inc.
By:
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Witness
----------------------------------
Witness
SWORN TO AND SUBSCRIBED BEFORE me this ____ day of ________________,
2004 by _______________________________, who is personally known to me or who
has produced _____________________________ as identification.
------------------------------------------------
Type/Print Name of Notary: ____________________
Commission Number : ____________________________
Commission expires: ___________________________
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