EXHIBIT 10.1
AGREEMENT AND GENERAL RELEASE
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GLOBIX CORPORATION, 139 Centre Street, New York, New York, 10013
("Employer" or "Company") and JOHN D. MCCARTHY, 290 Main Street, Westport,
Connecticut, 06880, his heirs, executors, administrators, successors, and
assigns (collectively referred to throughout this Agreement as "Employee"),
agree that:
1. LAST DAY OF EMPLOYMENT. Employee's last day of employment with
Employer was March 1, 2005.
2. CONSIDERATION. In consideration for signing this Agreement and
General Release and compliance with the promises made herein, Employer agrees:
a. to pay to Employee Ninety Five Thousand Dollars and No Cents
($95,000.00), less lawful deductions as required by the Internal Revenue Service
and other state and federal taxing authorities for salary/payroll purposes but
not for calculating bonus payments, within twenty (20) business days after
receipt of a fully executed original of this Agreement and General Release and a
letter from Employee in the form attached hereto as Exhibit "A", provided the
revocation period described below has expired and Employee has not revoked his
acceptance of this Agreement and General Release.
b. if Employee elects to continue medical [and dental] coverage
under the United Healthcare and MetLife Dental plans with the continuation
requirements of COBRA, Employer shall pay for the cost of said coverage
beginning on the last day of employment and ending on August 31, 2005.
Thereafter, Employee shall be entitled to continue such COBRA coverage for the
remainder of the COBRA period, at his own expense.
c. to cause Employee to continue to be subject to coverage under
Employer's Directors and Officers Insurance in connection with his actions as a
senior executive officer of Employer during the course of his employment to the
same scope and extent as any other similarly situated executive officer of
Company and any other protections provided to other similarly situated officers
and directors under Delaware law or the Company's Articles of Incorporation and
By-Laws, as adopted from time to time, by the Board of Directors of Company.
3. NO CONSIDERATION ABSENT EXECUTION OF THIS AGREEMENT. Employee
understands and agrees that he would not receive the monies and/or benefits
specified in paragraph "3" above, except for his execution of this Agreement and
General Release and the fulfillment of the promises contained herein.
4. GENERAL RELEASE OF CLAIMS. Employee knowingly and voluntarily
releases and forever discharges, to the full extent permitted by law, Employer,
its parent corporation, affiliates, subsidiaries, divisions, predecessors,
successors and assigns and the current and former benefit plan administrators
and trustees, employees, officers, directors and agents thereof (collectively
referred to throughout the remainder of this Agreement as "Releasees"), of and
from any and all claims, known and unknown, asserted and unasserted, Employee
has or may have against Releasees as of the date of execution of this Agreement
and General Release, including, but not limited to, any alleged violation of:
o Title VII of the Civil Rights Act of 1964, as amended;
o The Civil Rights Act of 1991;
o Sections 1981 through 1988 of Title 42 of the United States Code, as
amended;
o The Employee Retirement Income Security Act of 1974, as amended;
o The Immigration Reform and Control Act, as amended;
o The Americans with Disabilities Act of 1990, as amended;
o The Age Discrimination in Employment Act of 1967, as amended;
o The Older Workers Benefit Protection Act, as amended;
o The Workers Adjustment and Retraining Notification Act, as amended;
o The Occupational Safety and Health Act, as amended;
o The Sarbanes-Oxley Act of 2002, to the extent permitted by law;
o The New York Human Rights Law, as amended;
o The New York City Human Rights Law, as amended;
o The New York Labor Law, as amended;
o The New York City Charter and Administrative Code, as amended;
o The New York Equal Pay Law, as amended;
o The New York Whistleblower Law, as amended;
o The New York Legal Activities Law, as amended;
o The anti-retaliation provisions of the New York Workers' Compensation and
Disability Benefits Laws, as amended;
o The New York Occupational Safety and Health Laws, as amended;
o Any other federal, state or local civil or human rights law or any other
local, state or federal law, regulation or ordinance;
o Any public policy, contract (oral or written, express or implied), tort, or
common law; or
o Any claim for costs, fees, or other expenses including attorneys' fees
incurred in these matters.
Employer knowingly and voluntarily releases and forever discharges, to the full
extent permitted by Delaware law, Employee, his heirs, successors and assigns of
and from any and all claims, known and unknown, asserted and unasserted,
Employer has or may have against Employee as of the date of execution of this
Agreement and General Release.
5. AFFIRMATIONS. Employee affirms that he has not filed, caused to be
filed, or presently is a party to any claim, complaint, or action against
Releasees in any forum or form. Employee further affirms that he has been paid
and/or has received all leave (paid or unpaid), compensation, wages, bonuses,
commissions, and/or benefits to which he may be entitled and that no other leave
(paid or unpaid), compensation, wages, bonuses, commissions and/or benefits are
due to him, except as provided in this Agreement and General Release. Employee
furthermore affirms that he has no known workplace injuries or occupational
diseases and has been provided and/or has not been denied any leave requested
under the Family and Medical Leave Act.
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6. NON-DISPARAGEMENT. Employee agrees to make no negative statements
nor take any action which directly or indirectly defames, disparages, demeans,
derogates Releasees or their services, reputations, officers, employees,
financial status or operations or which damages Releasees in any business
relationship. The Company agrees to make no negative statements nor take any
action which directly or indirectly defames, disparages, demeans, or derogates
Employee or his services, character or reputation, or which damages Employee in
any business relationship.
7. CONFIDENTIALITY. Employee agrees to keep secret and to preserve the
confidentiality of all proprietary business information that he acquired or that
came to his attention or into his possession during the term of his employment
at Employer. Employee expressly represents and warrants that he does not have
within his possession or under his control any confidential business information
of Employer including, but not limited to, customer lists, business plans or
strategies, pricing information or other proprietary information. Employee
further agrees to keep secret and to preserve the confidentiality of this
Agreement, and not to discuss the terms hereof with any third party other than
his spouse, financial advisor and an attorney with whom Employee wishes to
consult regarding his consideration of this Agreement and General Release (who
shall agree to preserve such confidentially). Employee acknowledges that a
breach of the provisions of this paragraph would cause irreparable harm to
Employer that could not be adequately remedied by the payment of money;
therefore, in addition to all other remedies that might be available at law or
in equity, Employee agrees that Employer may seek injunctive relief in any court
of competent jurisdiction in order to address any such breach that might come to
its attention. Provided, however, in the event Employer determines in its sole
discretion that it is appropriate to file a copy of this agreement with the SEC
(or like governmental body) due to Employee's position with the Company, such
filing shall not be considered a breach of this paragraph 7.
8. COOPERATION. Employee agrees to immediately notify Employer if
Employee is served with legal process concerning legal action in any way
connected with Releasees.
9. STOCK OPTIONS Employee may exercise any stock option(s) in
accordance with the Globix Corporation 2003 Stock Option Plan and with the
"Globix Corporation 2003 Stock Option Plan Nonqualified Stock Option Agreement"
dated November 26th and executed by Employee, a copy of which is attached to
this Agreement and General Release as "Exhibit B". Employer acknowledges that,
for the purposes of Exhibit B, Employee's termination was for a reason other
than death, Disability or Cause. Employee shall have all rights and entitlements
as set forth in his 2003 Stock Option Agreement and in the event a cashless
exercise program is implemented during his ninety (90) day option exercise
period he shall be entitled to use same.
10. RETURN OF COMPANY PROPERTY: Employee warrants and represents that
he has not destroyed and has delivered to Employer all memoranda, notes,
records, computers, computer programs, computer files, computer software,
computer hardware, computer disks, marketing and financial information whether
made by him or not. Prior to executing this Agreement and General Release
Employee will return all property of Employer which is in his possession,
custody or control, and by signing this Agreement and General Release Employee
warrants and represents that all such property has been returned. Employee shall
be permitted to keep the Dell laptop previously provided to him by the Company
provided he promptly returns same to the Company for removal of all Company
data. In the event Employee has already stripped the laptop of said data this
right will be forfeited. Additionally, this right is contingent upon return of
the Blackberry device previously provided to him.
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11. GOVERNING LAW AND INTERPRETATION. This Agreement and General
Release shall be governed and conformed in accordance with the laws of the state
in which Employee was employed at the time of his last day of employment without
regard to its conflict of laws provision. In the event the Employee or Employer
breaches any provision of this Agreement and General Release, Employee and
Employer affirm that either may institute an action to specifically enforce any
term or terms of this Agreement and General Release. Should any provision of
this Agreement and General Release be declared illegal or unenforceable by any
court of competent jurisdiction and cannot be modified to be enforceable,
excluding the general release language, such provision shall immediately become
null and void, leaving the remainder of this Agreement and General Release in
full force and effect.
12. NONADMISSION OF WRONGDOING. The parties agree that neither this
Agreement and General Release nor the furnishing of the consideration for this
Release shall be deemed or construed at anytime for any purpose as an admission
by Releasees of any liability, wrongdoing or unlawful conduct of any kind.
13. AMENDMENT. This Agreement and General Release may not be modified,
altered or changed except upon express written consent of both parties wherein
specific reference is made to this Agreement and General Release.
14. NO WAIVER. The waiver by any party of a breach of any provision of
this Agreement and General Release shall not operate or be construed as a waiver
of any subsequent breach by any party.
15. REVOCATION. Employee may revoke this Agreement and General Release
for a period of seven (7) calendar days following the day he executes this
Agreement and General Release. Any revocation within this period must be
submitted, in writing, to Karen Dean and state, "I hereby revoke my acceptance
of our Agreement and General Release." The revocation must be personally
delivered to Karen Dean or her designee, or mailed to Karen Dean and postmarked
within seven (7) calendar days of execution of this Agreement and General
Release. This Agreement and General Release shall not become effective or
enforceable until the revocation period has expired and a letter in the form
attached as Exhibit "A," dated and signed no sooner than eight (8) days after
Employee dates and signs this Agreement and General Release, is received by
Karen Dean. If the last day of the revocation period is a Saturday, Sunday, or
legal holiday in the state in which Employee was employed at the time of his
last day of employment, then the revocation period shall not expire until the
next following day which is not a Saturday, Sunday, or legal holiday.
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16. ENTIRE AGREEMENT. This Agreement and General Release sets forth the
entire agreement between the parties hereto, and fully supersedes any prior
agreements or understandings between the parties, except agreements relating to
competition, solicitation and/or confidential information and the nonqualified
stock option agreement attached as "Exhibit B". Employee acknowledges that he
has not relied on any representations, promises, or agreements of any kind made
to him in connection with his decision to accept this Agreement and General
Release, except for those set forth in this Agreement and General Release.
17. PAYMENT OF LEGAL FEES. Each party shall bear its own attorney's
fees, legal costs and expenses in connection with the preparation, review and/or
execution of this Agreement.
EMPLOYEE IS HEREBY ADVISED THAT HE HAS UP TO TWENTY-ONE (21) CALENDAR
DAYS TO REVIEW THIS AGREEMENT AND GENERAL RELEASE AND TO CONSULT WITH AN
ATTORNEY PRIOR TO EXECUTION OF THIS AGREEMENT AND GENERAL RELEASE.
EMPLOYEE AGREES THAT ANY MODIFICATIONS, MATERIAL OR OTHERWISE, MADE TO
THIS AGREEMENT AND GENERAL RELEASE DO NOT RESTART OR AFFECT IN ANY MANNER THE
ORIGINAL TWENTY-ONE (21) CALENDAR DAY CONSIDERATION PERIOD.
HAVING ELECTED TO EXECUTE THIS AGREEMENT AND GENERAL RELEASE, TO
FULFILL THE PROMISES AND TO RECEIVE THE SUMS AND BENEFITS IN PARAGRAPH "2"
ABOVE, EMPLOYEE FREELY AND KNOWINGLY, AND AFTER DUE CONSIDERATION, ENTERS INTO
THIS AGREEMENT AND GENERAL RELEASE INTENDING TO WAIVE, SETTLE AND RELEASE ALL
CLAIMS HE HAS OR MIGHT HAVE AGAINST EMPLOYER.
IN WITNESS WHEREOF, the parties hereto knowingly and voluntarily
executed this Agreement and General Release as of the date set forth below:
GLOBIX CORPORATION
/s/ John D. McCarthy By: /s/ James C. Schroeder
- ------------------------------- --------------------------------
JOHN D. MCCARTHY JAMES C. SCHROEDER
Vice President & General Counsel
Date: 4/14/05 Date: 04/14/05
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EXHIBIT A
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April 28, 2005
Ms. Karen A. Dean
Director, Human Resources
Globix Corporation
139 Centre Street
New York, NY 10013
Re: Agreement and General Release
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Dear Ms. Dean:
On April 14, 2005 I executed an Agreement and General Release between
Globix Corporation and me. I was advised by Globix Corporation, in writing, to
consult with an attorney of my choosing, prior to executing this Agreement and
General Release.
More than seven (7) calendar days have elapsed since I executed the
above-mentioned Agreement and General Release. I have at no time revoked my
acceptance or execution of that Agreement and General Release and hereby
reaffirm my acceptance of that Agreement and General Release. Therefore, in
accordance with the terms of our Agreement and General Release, I hereby request
payment of the monies described in Paragraph 3 of that Agreement.
Very truly yours,
/s/ John D. McCarthy
John D. McCarthy