Exhibit 10.4
TERMINATION AGREEMENT
Termination Agreement (this "Agreement") made as of this 23rd day of
September 2003 between Wire One Technologies, Inc., a Delaware corporation
having its principal office at 000 Xxxx Xxxxxx, Xxxxxxxx, Xxx Xxxxxx 00000
(hereinafter "Wire One"), and Xxx Xxxxxxx, 0000 Xxxxxxxxxx Xxxx, Xxxxxxxxx, Xxxx
00000 (hereinafter "Executive").
Whereas, Executive is currently employed by Wire One as President and
Chief Operating Officer under an agreement dated January 2, 2001, as amended
July 30, 2002 and January 1, 2003 (collectively, the "Employment Agreement");
Whereas, Executive and Wire One have determined it to be in their mutual
best interests to terminate the term of the Employment Agreement, simultaneous
with the consummation of the proposed sale of Wire One's Video Solutions
business to Gores Technology Group (the "Transaction").
Now Therefore, in consideration of the mutual promises made herein, and
for other good and valuable consideration, the parties hereby agree as follows:
1. The term of the Employment Agreement shall terminate on the date hereof
(the "Termination Date").
2. In consideration of the covenants and agreements contained herein, Wire
One shall pay to Executive the balance of the salary that would have been
payable to him under the Employment Agreement if he were to remain with
Wire One in his present capacity until the expiration of the Employment
Agreement on December 31, 2003, with such payment to be made on or about
two weeks following the closing of the Transaction.
3. Executive and his representatives hereby release Wire One (except to the
extent of Wire One's obligations under this Agreement), its affiliated,
related, parent or subsidiary corporations, and their present and former
directors, officers, and employees from all claims of any kind, known and
unknown, which Executive may now have or have ever had against Wire One,
including claims for compensation, bonuses, severance pay, stock options,
accrued vacation and all claims arising from Executive's employment with
Wire One or the termination of Executive's employment, whether based on
contract, tort, statute, local ordinance, regulation or any comparable law
in any jurisdiction ("Released Claims"). By way of example and not in
limitation, the Released Claims shall include any
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claims arising under Title VII of the Civil Rights Act of 1964 as amended
and the Americans with Disabilities Act, as well as any claims asserting
wrongful termination, breach of contract, breach of the covenant of good
faith and fair dealing, negligent or intentional infliction of emotional
distress, negligent or intentional misrepresentation, negligent or
intentional interference with contract or prospective economic advantage,
and defamation.
4. Wire One hereby releases Executive (except to the extent of Executive's
obligations under this Agreement) and his representatives from all claims
of any kind, known and unknown, which Wire One may now have or have ever
had against Executive, including claims arising from any alleged violation
of any federal, state or local statutes, ordinances, executive orders or
common law principles relating to employment or termination of employment.
5. Executive and Wire One agree that the provisions of Section 4 of the
Employment Agreement shall remain in effect (1) on and after the
Termination Date with respect to the confidentiality of the confidential
business information or trade secrets of Wire One's Glowpoint business,
and (2) for a period of one year following the Termination Date with
respect to the non-solicitation of any employees of Wire One's Glowpoint
business following the consummation of the Transaction.
6. Except as set forth in this Agreement, all obligations under the
Employment Agreement are hereby terminated.
7. This agreement is made in the State of New Jersey and shall be governed by
New Jersey law. This agreement constitutes the entire agreement, and shall
supersede any prior or contemporaneous agreement, oral or written, between
the parties hereto regarding Executive's services to Wire One as an
employee or Executive following the Termination Date (it being understood
that the provisions of the Employment Agreement that survive the
termination of the "Employment Period" thereunder shall remain in full
force and effect) and may not be modified or amended except by a written
document signed by the party against whom enforcement is sought. This
agreement may be signed in more than one counterpart, in which case each
counterpart shall constitute an original of this agreement.
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IN WITNESS WHEREOF, the parties have signed this agreement as of the day
and year first above written.
WIRE ONE TECHNOLOGIES, INC.
By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
Title: Chief Executive Officer
/s/ Xxx Xxxxxxx
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Xxx Xxxxxxx
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