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Exhibit 10.37
AGREEMENT AND GENERAL RELEASE
CONSULT WITH A LAWYER BEFORE SIGNING THIS AGREEMENT AND RELEASE. BY SIGNING THIS
AGREEMENT, YOU GIVE UP AND WAIVE IMPORTANT LEGAL RIGHTS.
I, Thomas M. Burkardt, of 2231 Ocean Blvd., Rye, NH 03870, understand and, of my
own free will, enter into this AGREEMENT AND GENERAL RELEASE ("AGREEMENT" or
"Agreement") for the benefit of Unisphere Networks, Inc., a Delaware corporation
with principal offices at Ten Technology Park Drive, Westford, MA 01886, and its
parents, subsidiaries and affiliates,(hereinafter referred to individually and
collectively as the "COMPANY"), and in consideration of the payments and
benefits described herein, agree as follows:
1. My employment with the COMPANY will be terminated on July 2, 2001 by
virtue of my resignation of employment as of that date (the
"Resignation Date"). My last day actively at work with the COMPANY will
be July 2, 2001. I hereby resign from any corporate office or official
position which I hold with the COMPANY or any affiliate of the COMPANY
effective as of the Resignation Date and agree to execute any letters
of resignation in the form presented by the Company.
2. I will be paid as part of the consideration for this Agreement, base
salary continuation payments (in an amount equal to my bi-weekly base
salary rate in effect on the Resignation Date) on a bi-weekly basis
(i.e., every two weeks) on the Company's regular payroll periods, less
applicable federal, state, and local withholding and FICA taxes, during
the period from the Resignation Date until July 1, 2002 (the "Severance
Period"). I understand that health and dental insurance benefits, if
any, will continue through the Resignation Date at the same employee
contribution rate, at which point coverage will terminate subject to
continuation under the COBRA law as explained under separate cover. In
addition to the foregoing, the COMPANY will pay the monthly COBRA
payment on my behalf for continuation of my group health and dental
insurance coverage for the period of July 3, 2001 through July 2, 2002,
provided that I am then eligible and remain eligible for COBRA. I
understand that these payments are contingent upon return of this
Agreement, as stated in paragraph 10.
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The COMPANY acknowledges and agrees that I will receive these salary
continuation payments regardless of whether or not I become employed or
self-employed during the Severance Period unless the COMPANY terminates
these payments under Section 10 hereof.
3. I hereby agree to act as a consultant to the COMPANY to assist with the
transition of my responsibilities, including but not limited to
strategy, market positioning and product development, during the period
from July 3, 2001 to July 2, 2002 (the "Consultancy Period"). The
compensation I shall receive for such assistance shall consist of the
vesting of those incentive stock options and non-qualified stock
options previously awarded to me under the COMPANY'S 1999 Amended and
Restated Stock Incentive Plan (the "Plan") which would have vested on
or before April 1, 2002 had I remained an employee until that date.
These options shall vest in accordance with the terms of the Plan and
the terms of my option award(s) with the COMPANY provided, however,
that such options and any shares issued upon the exercise of such
options (once vested) shall be subject to the COMPANY's right of first
refusal to purchase the same if I elect to transfer or otherwise
dispose thereof, either in whole or in part, to any third party during
the Consultancy Period. If I elect to transfer or otherwise dispose of
these shares issued upon the exercise of such options, either in whole
or in part, to any third party during the Consultancy Period, I shall
first contact Suzanne M. Zabitchuck, the General Counsel of the
COMPANY, and advise her in writing of my intention to dispose of the
same. The COMPANY shall then have ten (10) business days from receipt
of such notice to purchase these shares, in whole or in part, at the
original exercise price (exclusive of any taxes which I was required to
pay upon exercise of those options). If the COMPANY declines to
purchase such shares, then I shall be entitled to transfer or otherwise
dispose thereof subject to the terms and conditions on transfer and
disposition set forth in the Plan, any option award and the lock-up
agreement.
4. I hereby acknowledge and agree that nothing in this Agreement shall be
deemed to affect the restricted stock previously acquired by me from
the COMPANY, and such restricted stock shall be governed by the terms
and conditions of the Restricted Stock Agreement Granted under the 1999
Stock Incentive Plan between me and the COMPANY, dated as of August 1,
2000, (hereinafter the "Restricted
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Stock Agreement"), including but not limited to, the Purchase Option
set forth therein. The parties hereby acknowledge and agree that the
COMPANY has a Purchase Option to acquire One Hundred Thirty Seven
Thousand Five Hundred (137,500) restricted shares under the terms of
the Restricted Stock Agreement. I hereby acknowledge and agree that I
shall not vest in any restricted shares following my Resignation Date.
5. I will receive a payment equal to accrued and unused vacation as of
July 2, 2001, less applicable federal, state, and local withholding and
FICA taxes. This payment is not contingent upon the execution and
return of this Agreement and will be paid with the next regular payroll
period following the Resignation Date.
6. I hereby acknowledge and agree that, in accordance with the terms of
the Company's 1999 Amended and Restated Stock Incentive Plan (the
"Plan"), all unvested options previously awarded to me under that Plan
shall be cancelled and forfeited by me on July 2, 2001 except those
options which would have vested during the period from July 3, 2001 to
and including April 1, 2002, as set forth in Paragraph 3 hereof. All
options which were vested as of the Resignation Date and any options
which shall subsequently vest in accordance with the terms of Paragraph
3 hereof must be exercised by me no later than October 1, 2002.
7. In the event that the current lock-up letter to the COMPANY in
connection with its potential initial public offering expires prior to
such offering, I agree to execute the form of lock-up agreement then
provided to me by the COMPANY provided, however, that the terms of such
lock-up letter shall be no more restrictive than the terms of the
lock-up executed by the then executive officers of the COMPANY.
8. During the Severance Period and the Consultancy Period, I agree not to,
directly or indirectly:
- acquire or agree, offer, seek or propose to acquire, or cause
to be acquired, ownership of any of the COMPANY'S assets or
business or any voting securities issued by the COMPANY, or
any other rights or options to acquire such ownership
(including from a third party),
- seek or propose to influence (otherwise than in my role as a
consultant to the COMPANY as set forth in Section 3 hereof
provided, however, that my actions in that regard
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are limited to internal dialogue only with the COMPANY's management) or
control the COMPANY'S management or policies, or
- enter into any discussions, negotiations, arrangements or
understandings with any third party with respect to any of the
foregoing.
The restrictions contained in this paragraph shall not be applicable to
purchases solely for investment purposes aggregating less than 5% of
the COMPANY'S outstanding voting securities or to the exercise of any
option granted to me under the terms of the COMPANY'S 1999 Amended and
Restated Stock Incentive Plan.
9. I understand that, except as provided in Paragraphs 2, 3, 5 and 6 of
this AGREEMENT, after the Resignation Date, I will have no further
rights to any other compensation or benefits from the COMPANY or any of
its parents, subsidiaries or affiliates, including, but not limited to,
any rights to or under any salary, bonus, compensation, milestone,
incentive, retention or stock option plans of the COMPANY or its
parents, subsidiaries, or affiliates, or vacation, severance, pension,
medical, dental, life, short term disability, long term disability or
other insurance or benefits of any kind, including, but not limited to,
any rights or benefits set forth in the Employment Agreement between
Castle Networks, Inc. and me, dated as of March 7, 1999 (hereinafter
the "Employment Agreement").
10. I understand the COMPANY will not be required to provide the payments
and benefits set forth in Paragraphs 2, 3 and 6 of this AGREEMENT
unless and until I sign this AGREEMENT and this AGREEMENT becomes
effective pursuant to Paragraph 24 hereof. I further understand and
agree that in the event that I breach any of the terms and conditions
set forth in this Agreement, the COMPANY shall provide me with written
notice of such breach and shall, following ten (10) days from the date
of such notice, unless prohibited by an order from an arbitrator in
accordance with the terms of Section 26 hereof, be entitled to
terminate all future payments and benefits due and owing to me under
this Agreement, including, but not limited to forfeiture of any further
vesting of any then unvested options, which shall be in addition to any
other relief and damages which may be available to the COMPANY under
applicable law or in equity. The parties hereto further agree that,
during this ten day
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notice period, the parties shall attempt to resolve any dispute in a
mutually agreeable manner but nothing herein shall preclude the COMPANY
from terminating the future payments and benefits due hereunder upon
the expiration of said notice period if the parties fail to mutually
agree upon a resolution, absent an order from the arbitrator as
specified in the immediately preceding sentence.
11. I understand that this AGREEMENT does not constitute an admission by
the COMPANY or myself of any (a) violation of any statute, law or
regulation; (b) breach of contract, actual or implied, including but
not limited to my Employment Agreement; or (c) commission of any tort.
12. In consideration for the payments and benefits set forth in Paragraphs
2, 3 and 6 of this AGREEMENT, I do, on behalf of myself, my legal
representatives, heirs, executors, administrators, successors and
assigns, agree and promise not to sue and to forever release the
COMPANY, its affiliates, parents, subsidiaries, and divisions and their
respective predecessors, successors and assigns and their current and
former directors, representatives, agents, employees, officers and
shareholders, both individually and in their official capacities, (the
"Releasees") from any and all claims, actions, causes of action, suits,
demands, liabilities, complaints, contracts, agreements, promises and
charges of every kind, nature and description, whenever they arose and
whether in law or in equity, which may by law be waived including, but
not limited to, claims related to my employment, the compensation,
benefits, terms and conditions of my employment, the compensation,
benefits, terms and conditions of my Employment Agreement, or the
cessation of my employment as well as any application for re-employment
that has been made prior to this date with the COMPANY. This release
includes but is not limited to any claim, charge or action arising
under any federal, state or local discrimination statute, which
include, but are not limited to, Title VII of the Civil Rights Act of
1964 and 1991, The Age Discrimination in Employment Act, the
Rehabilitation Act of 1973, the Older Workers Benefit Protection Act,
the Massachusetts Fair Employment Practices Act, the Fair Labor
Standards Act, the Americans with Disabilities Act, the Occupational
Health and Safety Act, the Family and Medical Leave Act, and the
National Labor Relations Act. This release also includes any other
federal, state, county, city or local law, statute, ordinance,
regulation, public policy, contract or tort law
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having any bearing whatsoever on the terms and conditions of my
employment or the cessation of that employment, including, but not
limited to, those laws relating to discrimination on the basis of age,
sex, race, national origin, religion, marital status, sexual
orientation or payment of wages, or under any other theory of law or
contract, including but not limited to, fraud, wrongful termination or
intentional or negligent infliction of emotional or mental distress,
libel or slander. I intend to waive and release any rights I may have
under these and other laws which I ever had, now have or shall have as
of the date of this Agreement, but I do not intend to nor am I waiving
any rights or claims that may arise after the date I sign this
AGREEMENT, or that may arise from the Company's breach of this
AGREEMENT.
13. I understand and acknowledge that the payments and benefits set forth
under this AGREEMENT completely satisfy any obligations which the
COMPANY may have towards me under the Employment Agreement and the
Plan.
14. I understand and acknowledge that any and all obligations owed to me
under the terms of any merger agreement or any milestone, incentive or
retention plans associated with the acquisition of Castle Networks,
Inc. by the COMPANY, or any of its parents, subsidiaries or affiliates,
have previously been fulfilled and that I have no further rights to any
other compensation or benefits from the COMPANY or any of its parents,
subsidiaries or affiliates thereunder.
15. In light of the consideration and benefits set forth in Paragraphs 2, 3
and 6 of this Agreement, I further agree to amend the terms of the
Non-Competition and Non-Solicitation Agreement between me and Castle
Networks, Inc, dated as of March 7, 1999 (hereinafter the
"Non-Competition and Non-Solicitation Agreement"), as follows:
a. Section 1/Term shall be amended as follows: This Agreement
shall be for a term commencing on the Closing Date (as defined
in the Merger Agreement) and ending on January 1, 2003, the
date which is eighteen months following July 2, 2001, which is
the date on which the Employee shall cease to be an employee
of the Company and its affiliates (the "Restricted Period").
Nothing in this Agreement shall confer on the Employee any
right to continue in the employ of the Company or its
affiliates.
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b. Section 2.2/Non-Solicitation shall be amended as follows:
During the Restricted Period, the Employee shall not, without
the Company's prior written consent, directly or indirectly,
(i) solicit or encourage to leave the employment or other
service of the Company, or any of its affiliates, any employee
or independent contractor thereof or (ii) hire (on behalf of
the Employee or any other person or entity) any employee or
independent contractor who is employed or engaged by the
Company at the time of the Employee's termination of
employment, or at any time within the 6 month period which
precedes such termination, or who has left the employment or
other service of the Company or any of its affiliates within
the six-month period which precedes such hiring. From the date
hereof through the end of the Restricted Period, the Employee
will not, whether for his own account or for the account of
any other person, firm, corporation of other business
organization, intentionally interfere with the Company's or
any of their affiliates' relationship with, or endeavor to
entice away from the Company or any of their affiliates, any
person who during the Term is or was a customer or client of
the Company or any of its affiliates.
The COMPANY hereby acknowledges and agrees that it interprets the term
"the Business" as used in Section 2.1 of the Non-Competition and
Non-Solicitation Agreement, as amended herein, to refer to the
development, manufacture, marketing or sale of any product that is
competitive with any product developed, manufactured, marketed or sold,
or under development (as evidenced by a written development plan) while
I was employed by the COMPANY, including but not limited to Unisphere
Networks, Inc. and Castle Networks, Inc., through and including July 2,
2001, the Resignation Date.
I acknowledge and agree that nothing in this AGREEMENT shall be deemed
to reduce in any way the obligations I have under any non-competition
agreement which applies to me, including, but not limited, the terms
and conditions set forth in the Non-Competition and Non-Solicitation
Agreement, except as such Non-Competition and Non-Solicitation
Agreement is amended above in this Section 15. I hereby confirm the
terms, conditions and restrictions set forth in the Non-Competition and
Non-Solicitation Agreement, as amended herein, and acknowledge
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and agree that the terms thereof shall survive the termination of my
employment as set forth therein.
The COMPANY hereby acknowledged and agrees that I currently am a
Director of Wavesmith and Kenetic and am a member of the advisory board
of Vividon. The COMPANY further acknowledges and agrees that I may
retain these positions and the COMPANY will not claim that the mere
fact that I hold these positions is a violation of the Non-Competition
and Non-Solicitation Agreement, as amended herein, even if those
entities compete with the COMPANY, provided, however, that nothing
herein shall reduce or diminish in any manner the terms and conditions
of the Non-Competition and Non-Solicitation Agreement, as amended
herein, and the Employee Patent and Secrecy Agreement with Castle
Networks, Inc., dated as of March 9, 1999 (hereinafter the "Employee
Patent and Secrecy Agreement"). For avoidance of doubt, the COMPANY
will not claim that I am in violation of the Non-Competition and
Non-Solicitation Agreement, as amended herein, by virtue of the fact
that I serve as a director or advisory board member of these
organizations but nothing herein will preclude the COMPANY from
pursuing a claim under the Non-Competition and Non-Solicitation
Agreement, as amended herein, or the Employee Patent and Secrecy
Agreement in the event that I otherwise violate the terms thereof,
including by way of example but not by limitation, disclosing
confidential information regarding the COMPANY to one of these
entities.
16. I acknowledge and agree that nothing in this AGREEMENT shall be deemed
to reduce in any way the obligations I have under any employee patent
and secrecy agreement or confidentiality agreements which apply to me,
including, but not limited, the terms and conditions set forth in: (i)
the Employee Patent and Secrecy Agreement with Castle Networks, Inc.,
dated as of March 9, 1999 (hereinafter the "Employee Patent and Secrecy
Agreement"); and (ii) the Non-Competition and Non-Solicitation, except
as such Non-Competition and Non-Solicitation Agreement is amended
pursuant to Section 15 herein. I hereby confirm the terms, conditions
and restrictions set forth in the Employee Patent and Secrecy Agreement
and the Non-Competition and Non-Solicitation Agreement, as amended
herein, and acknowledge and agree that the terms thereof shall survive
the termination of my employment as set forth therein.
17. I agree to strictly maintain the confidentiality of the terms of this
AGREEMENT and shall not disclose any
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information relating thereto to any individual other than my immediate
family members, legal counsel and tax advisor.
18. I agree not to disparage the reputation of the Company, its products
and services, including its current and former officers, directors,
employees and agents, at any time now or in the future. In addition to
the foregoing, I agree that in the event that I am contacted by any
person, including any person associated, directly or indirectly, with
any customer of the Company, any investment banking firm, any
securities analyst, the press, any publication or trade journal, or any
industry association, I will decline to comment other than to confirm
that I have resigned from the COMPANY and continue to act as a
consultant thereto through July 2, 2002. In all other respects, I shall
make no statements or comments other than comments which are clearly of
a positive nature regarding the Company, its products and services,
including without limitation, its current and former officers,
directors and employees. Notwithstanding the foregoing, I shall be free
to make private comments regarding the Company to the members of my
immediate family and to my attorneys. In addition, I shall be entitled
to respond truthfully if I am compelled by legal process to testify in
any legal or governmental proceeding.
The Company agrees not to issue a formal written press release
regarding my resignation from the Company unless I review and approve
thereof. In addition, James Dolce and Eve Aretakis (the "Named
Executives") shall, during the course of his/her employment with the
COMPANY, refrain from making any disparaging comments to any third
party regarding my reputation and shall confirm to any third party that
I resigned as an officer of the COMPANY for personal reasons and that I
continue to act as a consultant thereto through July 2, 2002. The Named
Executives shall be entitled to respond truthfully if compelled by
legal process to testify in any legal or governmental proceeding.
Notwithstanding the foregoing, nothing herein shall restrict in any
manner any comments by the Named Executives to, or discussions between,
any of the Named Executives with each other or with any employee or any
officer of the Company or with the Company's Board of Directors,
attorneys or advisors. I hereby acknowledge and agree that nothing in
this Section 18 shall create any personal liability on behalf of the
Named Executives and that any claim I may
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have for their compliance with the terms of this Section 18 shall be
exclusively against the COMPANY.
19. The Company acknowledges that it has provided certain indemnification
coverage to me as an officer of Unisphere Networks, Inc. pursuant to
the Certificate of Incorporation thereof filed with the Delaware
Secretary of State on January 12, 1999 and that I shall continue to be
subject to such indemnification for my actions taken prior to the date
hereof as Executive Vice President and Chief Operating Officer.
20. This AGREEMENT shall be governed by and construed in accordance with
the laws of the Commonwealth of Massachusetts without regard to
principles of conflicts of law.
21. The terms and provisions of this AGREEMENT are severable. If one or
more provisions or terms of this AGREEMENT shall be ruled
unenforceable, the COMPANY may elect to enforce the remainder of this
AGREEMENT.
22. I understand that this AGREEMENT may not affect the rights and
responsibilities of the Equal Employment Opportunity Commission
("Commission") to enforce the Age Discrimination in Employment Act
("ADEA") or be used to justify interfering with the protected right of
an employee to file a charge under the ADEA or participate in an
investigation or proceeding conducted by the Commission under the ADEA.
I further understand that this AGREEMENT may not affect the rights and
responsibilities of the Massachusetts Commission Against Discrimination
("MCAD") to enforce the laws of the Commonwealth of Massachusetts
prohibiting discrimination in employment or be used to justify
interfering with the protected right of an employee to file a charge
under such laws or participate in an investigation or proceeding
conducted by the MCAD under those laws.
23. I was given a copy of this AGREEMENT on or before the Resignation Date.
I have had an opportunity to consult an attorney before signing it and
was given a period of at least twenty-one (21) days or until July 23,
2001 to consider this AGREEMENT. In the event that I sign this
Agreement within less than twenty-one (21) days of receipt, I
acknowledge that I did so voluntarily and with knowledge of the
opportunity to consider this Agreement for the entire twenty-one (21)
day period. I acknowledge that in signing this AGREEMENT I have relied
only on the promises
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written in this AGREEMENT and not on any other promise made by the
COMPANY.
24. I have seven (7) days to revoke this AGREEMENT after I sign it by
sending written notice to the Company addressed as follows: Unisphere
Networks, Inc., Ten Technology Park Drive, Westford, MA 01886,
Attention: Ann Laporte, Director of Human Resources, which notice must
be postmarked within seven (7) days of my execution hereof. If the
seventh day is a Saturday, Sunday or legal holiday in Massachusetts,
then the revocation period shall not expire until the next following
day which is not a Saturday, Sunday or legal holiday. This AGREEMENT
will not become effective or enforceable until ten (10) days after the
COMPANY has received my signed copy of this AGREEMENT (the "Effective
Date") provided the revocation period expires without my having
exercised the right to revoke. No payments will be made hereunder until
the revocation period has expired without exercise and the Agreement
becomes effective as set forth herein.
25. This AGREEMENT may not be modified or changed orally. Any modifications
or amendments must be in writing and signed by the parties hereto. The
parties agree that this Agreement represents the entire agreement of
the parties and supersedes all prior communications, agreements or
understandings, either oral or written, if any, regarding the same,
provided, however, that the terms and conditions of the Employee Patent
and Secrecy Agreement, the Non-Competition and Non-Solicitation
Agreement, as amended herein, the Restricted Stock Agreement, the
Pledge Agreement with the COMPANY dated as of August 1, 2000, the
Promissory Note with the COMPANY dated as of August 1, 2000, and the
Joint Escrow Instructions with the COMPANY dated as of August 1, 2000,
shall survive in accordance with the terms thereof.
26. Any and all disputes, complaints, controversies, claims and grievances
(excluding those specifically excepted herein) arising under, out of,
in connection with, or in any manner related to this AGREEMENT or the
relation of the parties hereunder shall be submitted to final and
binding arbitration to be conducted by the American Arbitration
Association in accordance with its Rules applicable to these types of
disputes, complaints, claims or grievances, by one neutral and
impartial arbitrator acceptable to me and the COMPANY. If such an
arbitrator has not been selected by me and the COMPANY within 60 days
after AAA first provides a list of
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eligible arbitrators, or within thirty days after the occurrence of a
vacancy, one neutral and impartial arbitrator shall be selected and
appointed by the American Arbitration Association, in accordance with
its Rules. Unless otherwise required under applicable law, the
arbitration proceedings shall be conducted in Boston, Massachusetts or
a city mutually agreed to by the parties, and the procedural rules of
the place of arbitration shall apply. Arbitration proceedings hereunder
may be commenced by written notice from either party hereto to the
other party. Such proceedings and evidence shall be confidential. The
arbitrator shall have the power and the authority to make such
decisions and awards as he/she shall deem appropriate, including
granting compensatory damages and costs to the prevailing party
(including fees of the arbitrator, but excluding punitive, exemplary,
consequential or special damages, and attorneys' fees), and the
granting or issuance of such mandatory directions, prohibitions,
orders, restraints and other injunctions (other than any of the
foregoing that would reestablish the employment relationship formerly
existing between the COMPANY and myself) that he/she may deem necessary
or advisable directed to or against any of the parties, including a
direction or order requiring specific performance of any covenant,
agreement or provision of this AGREEMENT as a result of a breach or
threatened breach thereof. The cost of such arbitration shall be borne
by the COMPANY except that each party shall bear its own cost of
attorneys' fees and expenses. Any decision and award of the arbitrator
shall be final, binding and conclusive upon all of the parties hereto
and said decision and award may be entered as a final judgment in any
court of competent jurisdiction. It is expressly agreed that
arbitration as provided herein shall be the exclusive means for
determination of all matters as above provided and neither of the
parties hereto shall institute any action or proceeding in any court of
law or equity, state or federal, other than respecting enforcement of
the arbitrator's award hereunder. The foregoing sentence shall be a
bona fide defense in any action or proceeding instituted contrary to
this AGREEMENT. Notwithstanding the foregoing, nothing contained herein
shall prevent or restrain in any manner either party from instituting
an action or claim in any court, or such other forum as may be
appropriate to enforce the terms of any employee patent and secrecy
agreement, (or similar agreement relating to the COMPANY's confidential
or proprietary business information or trade secrets) to protect the
COMPANY's proprietary or confidential business information or trade
secrets, to enforce or protect
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the COMPANY's patent, copyright, trademark, trade name or trade dress
rights, to redress claims for product disparagement or trade libel, or
to protect the COMPANY's reasonable business expectations or relations
with third parties, or to enforce the terms of any non-competition
agreement. To the extent this paragraph sets forth different
procedures, or remedies, or provides the arbitrator different powers
than are set forth in the Rules of the American Arbitration
Association, the terms of this paragraph shall take precedence.
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I HAVE BEEN ADVISED THAT I HAVE TWENTY-ONE (21) DAYS TO CONSIDER THIS AGREEMENT
AND I HAVE BEEN ADVISED IN WRITING TO CONSULT WITH AN ATTORNEY PRIOR TO
EXECUTION OF THIS AGREEMENT. I FURTHER UNDERSTAND THAT I MAY REVOKE THIS
AGREEMENT FOR A PERIOD OF SEVEN (7) DAYS FOLLOWING THE DAY I EXECUTE THE
AGREEMENT AND SAID AGREEMENT SHALL NOT BECOME EFFECTIVE OR ENFORCEABLE UNTIL THE
REVOCATION PERIOD HAS EXPIRED. I UNDERSTAND THAT THIS AGREEMENT WILL BE A
BINDING LEGAL DOCUMENT AND THAT MY SIGNATURE WILL COMMIT ME TO ITS TERMS. I HAVE
READ THIS AGREEMENT, AND I UNDERSTAND ALL OF ITS TERMS. HAVING ELECTED TO
EXECUTE THIS AGREEMENT, TO FULFILL THE PROMISES SET FORTH HEREIN, AND TO RECEIVE
THEREBY THE SUMS AND BENEFITS AS SET FORTH HEREIN, I FREELY AND KNOWINGLY, AND
AFTER DUE CONSIDERATION, VOLUNTARILY ENTER INTO THIS AGREEMENT INTENDING TO
WAIVE, SETTLE AND RELEASE ALL CLAIMS I HAVE, HAD OR MIGHT HAVE AGAINST THE
COMPANY.
/s/ Thomas M. Burkardt
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Thomas M. Burkardt
Date: July 2, 2001
COMMONWEALTH OF MASSACHUSETTS )
:ss
COUNTY OF ESSEX )
On this 2ND day of JULY, 2001 before me personally came Thomas M. Burkardt to me
known and known to be the individual who executed the foregoing AGREEMENT AND
GENERAL RELEASE before me and duly acknowledged to me that he executed the same
as his free act and deed.
/s/ Lisa M. Falcone
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Notary Public
My Commission Expires:
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Unisphere Networks, Inc.
BY: /s/ James A. Dolce, Jr.
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Date: July 3, 2001
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