EXHIBIT 10.1
SEPARATION AGREEMENT
The parties to this Separation Agreement ("Agreement") are:
George E. Willett
401 DUFF LANE
LOUISVILLE, KY 40207 ("WILLETT")
and
High Speed Access Corp.
9900 CORPORATE CAMPUS DRIVE
SUITE 3000
LOUISVILLE, KY 40223 ("HSA")
RECITALS
A. Willett and HSA are parties to a certain Employment Agreement dated
June 4, 2001 (the "Willett Employment Agreement"). Willett's employment with HSA
was terminated on April 30, 2003, pursuant to a Constructive Termination (as
defined in the Willett Employment Agreement).
B. The parties hereto wish to mutually and amicably settle all issues
existing between them, whether or not arising under the Willett Employment
Agreement, as more specifically set forth below on the terms and conditions of
this Agreement. HSA, by entering into this Agreement, admits no wrongdoing or
liability whatsoever.
In consideration of the mutual covenants set forth herein and other
good and valuable consideration, the receipt of which is hereby acknowledged,
the parties agree as follows:
1. Willett, for himself and his heirs and assigns, acknowledges his separation
from HSA on April 30, 2003, and does hereby forever release and discharge
HSA, its subsidiaries, affiliates, successors, predecessors, assigns,
agents, employees, directors, attorneys and representatives (collectively,
referred to as "Released Parties") from any and all causes of action,
actions, judgments, liens, indebtedness, damages, losses, claims,
liabilities and demands of whatsoever kind and character in any manner
whatsoever arising from or relating to the Willett Employment Agreement and
his employment and termination of employment with HSA; and, without
limiting the generality of the foregoing, specifically from all claims
relating to bonus, accrued vacation, continued base salary, benefits
(including COBRA), or any and all other allegations asserted or which could
have been asserted by Willett or on his behalf against HSA, including
claims for attorneys' fees. Willett specifically releases HSA and the
above-released parties from any and all claims of age discrimination under
the federal Age Discrimination in Employment Act, 29 U.S.C. Section 621, et
seq.
2. Willett represents that he has not commenced, and that he will not at any
time after execution of this Agreement commence, any other action, lawsuit,
or legal proceeding or
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file any charge or complaint with any federal, state or local agency
against any of the Released Parties relating in any way to the Willett
Employment Agreement or his employment with or separation from HSA.
3. Notwithstanding anything to the contrary contained herein, HSA acknowledges
and agrees to the existence and continuing validity, as they may apply to
Willett, or Article VII of HSA's Second Amended and Restated Certificate of
Incorporation and HSA's Amended and Restated Bylaw, and that certain
Indemnity Agreement dated as of May 23, 2001 by and between HSA and
Willett. The foregoing sections and agreement which relate to
indemnification, advancement of expenses and related protections for
Willett as an officer of HSA are expressly incorporated into this Agreement
and continue in full force and effect notwithstanding any release or other
provision of this Agreement.
4. Willett acknowledges and agrees to the existence and continued validity of
Sections 8 and 9 (and their subparts) of the Willett Employment Agreement.
These provisions relating to covenants not to compete, non-solicitation,
non-inducement and non-disclosure, are expressly incorporated into this
Agreement, and continue in full force and effect notwithstanding the
termination of Willett's employment with the HSA.
5. Willett understands and expressly agrees that this Agreement extends to all
claims of every nature and kind, known or unknown, suspected or
unsuspected, past, present, or future, arising from or relating to the
Willett Employment Agreement, including any claim of any kind of nature
whatsoever or any alleged unlawful act of any of the Released Parties
occurring prior to the execution of this Agreement, referred to herein or
not.
6. The parties understand and expressly agree that this Agreement shall bind
and benefit Willett and HSA, and their respective heirs, administrators,
successors and assigns. Willett further represents that he has full and
exclusive authority to release, discharge and covenant not to sue the
Released Parties pursuant to the terms of this Agreement, and that he has
not assigned or transferred in any way any claims against any of the
Released Parties.
7. In consideration of the releases, covenants and covenant not to sue set
forth in this Agreement, HSA and Willett agree to the following:
a) On May 2, 2003, HSA shall pay Base Salary to Willett through
April 30, 2003.
b) HSA shall pay Willett $168,000 (the "Severance Payment") as
follows: HSA shall continue to pay Base Salary to Willett in the
amount of $14,000 per month commencing May 1, 2003 through the
date of HSA's initial liquidating distribution to shareholders
(which is presently expected to occur on or before June 1, 2003),
and a lump sum payment to Willett of the remaining amount balance
of such Severance Payent within 10 days after such initial
liquidating distribution.
c) HSA shall provide for Willett continued health benefits programs
(i.e., "family" medical coverage with Humana and Kentucky Access,
but not disability or group life insurance) by reimbursing Willett
for the cost ($876.25 per month) of obtaining
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such family medical coverage (the "New Coverage") for a period of
not less than 12 months from the Termination Date. If Willett
obtains family medical coverage through a subsequent employer's
group plan (the "Replacement Coverage") prior to the end of such
12 month period, HSA shall pay to Willett (grossed-up for any
tax/W-2 effect to Willett) the "employee-paid" portion of such
employer-provided group coverage (not to exceed $876.25/mo.) from
the effective start date of such Replacement Coverage through
April 30, 2004.
d) HSA shall permit Willett to cash-out his "in-the-money" options
pursuant to the terms of a certain Options Termination and
Cash-Out Agreement.
e) HSA shall release from it custody and deliver to Willett one (1)
HSA stock certificate (No. C1278) representing 75,000 shares of
HSA common stock pursuant a certain Restricted Stock Agreement
dated February 2, 2001; provided, that such shares shall not be
registered and are subject trading restrictions absent compliance
with SEC Rule 144 (including, without limitation, a 1-year holding
period commencing May 1, 2003).
f) HSA shall enter into a Consulting Agreement with Willett in the
form of Exhibit A hereto and pursuant.
g) HSA shall maintain its D&O coverage in full force and effect and
treat Willett as an Insured officer thereunder for all purposes.
8. It is understood and agreed by Willett that, with respect to the payment to
be made pursuant to paragraph 7(d) above, all applicable income and other
taxes are required to be withheld. If and to the extent HSA is required to
withhold on the value of the restricted stock delivered to Willett under
Section 7(d) above, Willett shall pay the appropriate amount of withholding
taxes to HSA for remittance to the IRS.
9. Willett expressly warrants and agrees that he will keep the terms of this
Agreement strictly confidential and will not communicate the terms of this
Agreement orally or in writing to any third party except to his immediate
family, his tax advisor, or as may be required by law. This confidentiality
agreement shall not apply to any terms hereof disclosed publicly by HSA.
10. The parties agree that this Agreement does not constitute an admission of
liability; that it does not constitute any factual or legal precedent or
finding whatsoever; and that it may not be used as evidence in any
subsequent proceeding of any kind, except in an action alleging a breach of
this Agreement.
11. The parties will bear their own attorneys' fees and costs respectively in
connection with this Agreement.
12. Each party to this Agreement shall have the right to bring an action to
enforce any of its terms or provisions. The parties agree that the Court
shall enter an award of attorneys' fees and costs to the prevailing party
in any action to enforce the terms of this Agreement.
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13. Kentucky law shall govern the validity, effect and interpretation of this
Agreement.
14. This Agreement constitutes the entire understanding and agreement between
the parties. Any modification of this Agreement must be in writing and
signed by both Willett and HSA.
15. Willett represents that he has read this Agreement, has consulted his
attorney of record concerning the terms of this Agreement, and understands
each of the terms of this Agreement. Willett further represents that he has
entered into this settlement and executed this Agreement voluntarily and
willingly. Willett understands that he may revoke this Agreement by giving
written notice to HSA within seven (7) days after it has been signed and
notarized. This Agreement will not become effective or enforceable until
the seven day revocation period is passed.
16. Willett further agrees to cooperate with HSA in any investigations,
hearings, lawsuits or other matters involving HSA or its affiliates,
subsidiaries and divisions, and its and their predecessors, successors, and
assigns, concerning items or issues where Willett had specific involvement,
knowledge or responsibility, or where subsequent assistance and cooperation
is reasonably necessary or appropriate. Willett will be available, at the
expense of HSA, upon reasonable notice and at reasonable times and for
reasonable periods, for such things as interviews, depositions, hearings
and trials.
17. This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and this
same agreement.
I HAVE CAREFULLY READ THE FOREGOING CONFIDENTIAL SEPARATION AGREEMENT,
GENERAL RELEASE AND COVENANT NOT TO SUE AND ACKNOWLEDGE THAT I KNOW AND
UNDERSTAND THE CONTENTS THEREOF, THAT IT CONTAINS THE TERMS AND CONDITIONS I
HAVE AGREED UPON WITH THE COMPANY, AND THAT I EXECUTE IT OF MY OWN FREE WILL. I
HAVE BEEN NOTIFIED TO SEEK THE COUNSEL OF AN ATTORNEY.
Executed effective on May 1, 2003, but actually on April 30, 2003.
/s/ GEORGE E. WILLETT
-------------------------------------
GEORGE E. WILLETT
HIGH SPEED ACCESS CORP.
By: /s/ DAVID A. JONES, JR.
----------------------------------
David A. Jones, Jr.
Chairman of the Board of Directors
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CONSULTING AGREEMENT
This is a Consulting Agreement (the "Agreement") dated as of May 1,
2003, between HIGH SPEED ACCESS CORP., a Delaware corporation ("HSA") and GEORGE
E. WILLETT ("Consultant"), a resident of Louisville, Kentucky.
RECITALS
HSAC wishes to retain the services of Consultant with respect to the
windup of the HSA and other financial and management services as Consultant and
HSA may agree. Consultant has negotiated the terms of this Agreement with HSA
and has agreed to the terms as set forth hereafter.
NOW, THEREFORE, the parties hereto agree as follows:
1. CONSULTING SERVICES. For a period commencing on May 1, 2003, and
continuing through October 31, 2003, Consultant agrees to advise, assist, and
serve as HSA's President and CFO on a non-employee basis, and otherwise continue
to render such services and fulfill such responsibilities to HSA in connection
with the wind-up of its affairs as Consultant previously rendered as an
employee/officer of the Company (the "Consulting Services"). The Consultant
shall render his or her Consulting Services by telephone, letter or in person,
as the Consultant and the HSA may mutually determine. Consultant shall
faithfully and industriously perform the Consulting Services, and shall devote
such time to the performance of such duties incident to the Consulting Services
as may be necessary therefor, provided that Consultant shall not be required to
devote any specific number of hours a month to such consulting services or a
minimum number of hours as a condition to receiving the compensation described
herein. HSA shall have no authority to direct or control Consultant with respect
to the amount, time, place, or manner of his or her Consulting Services.
2. REMEDIES FOR BREACH. Consultant acknowledges that the Consulting
Services to be rendered by him or her hereunder are of a special, unique, and
extraordinary character which gives this Agreement a peculiar value to HSA, the
loss of which cannot be reasonably or adequately compensated in damages in an
action at law, and that a breach by Consultant of this Agreement shall cause HSA
irreparable injury. Therefore, HSA shall be entitled to (i) cancel any remaining
consulting payments due Consultant under Section 3 of this Agreement, and (ii)
institute and prosecute proceedings in any court of competent jurisdiction,
either in law or in equity, and to pursue any available remedies, including
injunctive relief, actions for specific performance and damages, for breaches by
Consultant of any covenants contained herein.
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3. COMPENSATION. As compensation for the Consulting Services provided
to HSA by Consultant under this Agreement, HSAC shall pay to Consultant the sum
of SEVEN THOUSAND DOLLARS PER MONTH ($7,000/month) for the period May 1, 2003
through October 31, 2003, plus reasonable, documented business expenses (but not
mileage to and from Consultant's residence and HSA's offices in Louisville,
Kentucky). As Consultant will be an independent contractor and consultant to
HSA, he will be precluded from having, receiving or being entitled to receive
any of the rights, privileges or benefits of employees of HSA. Consultant shall
be solely responsible for meeting any legal requirements imposed on him or any
person acting on his behalf as a result of this Agreement, including but not
limited to the payment of taxes on income or the filing of tax returns, and
Consultant agrees to indemnify HSA for his failure to do so.
6. TERMINATION. This Agreement shall terminate immediately upon the
occurrence of any one of the following events:
(a) The expiration of the term hereof;
(b) Consultant's breach of his duties hereunder, unless
waived by HSA or cured by Consultant within 10 days
after HSA's having given notice thereof to
Consultant;
(c) HSA's breach of its duties hereunder, unless waived
by Consultant or cured by HSA within 10 days after
Consultant's having given written notice thereof to
HSA.
7. ASSIGNABILITY. This Agreement may not be assigned or transferred by
Consultant without the prior written consent of HSA.
8. GOVERNING LAW; CONSENT TO JURISDICTION. This Agreement shall be
governed by and construed in accordance with the laws of the Commonwealth of
Kentucky. Consultant and HSA agree that that the Circuit Courts of Jefferson
County, Kentucky shall have exclusive jurisdiction with respect to the
adjudication and enforcement of any and all disputes arising under this
Agreement, including actions arising under Section 1 hereof.
9. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement of
the parties, and supersedes all prior understandings with the respect to the
subject matter hereof. No change in or modification of this Agreement shall be
enforceable unless in writing and signed by the party against whom enforcement
is sought.
10. SEVERABILITY. If any provision of this Agreement or application
thereof shall be adjudged by any court of competent jurisdiction to be invalid,
illegal or unenforceable in any
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respect, the validity, legality and enforceability of all other applications of
that provision, and of all other provisions and applications thereof, shall not
in any way be affected or impaired.
11. NO WAIVERS. No failure or delay on the part of any party exercising
any power or right under this Agreement shall operate as a waiver thereof, and
no single or partial exercise of any such right or power shall preclude any
other or further exercise thereof, or the exercise of any other right or power
under this Agreement.
12. HEADINGS. The headings used in this Agreement have been included
solely for ease of reference and shall not be considered in the interpretation
or construction of this Agreement.
13. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, and it shall not be
necessary in making proof of this Agreement or the terms hereof to produce or
account for more than one of such counterparts.
IN WITNESS WHEREOF, the parties have signed this Agreement as of the
date set forth in the preamble above, but actually on the dates indicated below.
HIGH SPEED ACCESS CORP.
By /s/ DAVID A. JONES, JR.
-------------------------------------
Name: David A. Jones, Jr.
Title: Chairman of the Board
Date: May 1, 2003
CONSULTANT: /s/ GEORGE E. WILLETT
----------------------------------------
GEORGE E. WILLETT
Date: April 30, 2003
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