Exhibit 10.4
AGREEMENT AND RELEASE (this "Agreement") made and entered into by and
between Telebyte Technology, Inc., a Nevada corporation (the "Company"), and
Joel A. Kramer ("Employee").
IT IS HEREBY AGREED THAT:
1. In consideration of the Company executing and delivering to the
Employee that certain Stock Purchase Agreement contemplated to be executed and
delivered by the Company and Employee and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged by the Employee,
Employee hereby releases and forever discharges the Company, its parent,
subsidiaries, affiliates, related companies, controlling shareholders,
directors, officers, employees, agents, attorneys, successors, and assigns
(collectively, the "Releasees") from all liabilities, causes of action, suits,
claims, damages and demands whatsoever, whether known or unknown, at law or in
equity, whether statutory or common law, whether federal, state, local, or
otherwise, related to, or arising out of, any aspect of his employment with the
Company, or the termination of such employment, including, but not limited to,
any claims of employment discrimination on any basis which he (including his
heirs, executors, administrators, successors, and assigns) has asserted or could
have asserted to the date of his execution of this Agreement. Notwithstanding
the forgoing, the Company is not in any respect released by the Employee for any
liability or obligation to the Employee arising out of (i) any right of the
Employee pursuant to the Company's By-Laws, Certificate of Incorporation or law
to be indemnified for his conduct as an officer, director or employee of the
Company, or (ii) any claim of the Employee arising out of the Employee's
enforcement of his rights under the Stock Purchase Agreement or the Consulting
Agreement or Termination Agreement contemplated to be entered into pursuant to
the Stock Purchase Agreement, or (iii) any benefit plan maintained by the
Company for its employees generally pursuant to which Employee accrued benefits
prior to the date of the Consulting Agreement.
2. Employee understands that once this Agreement becomes effective, he
waives and releases, to the extent consistent with applicable law, any rights or
claims he may have under the numerous laws and regulations regulating
employment, whether federal, state, local or otherwise, including, but not
limited to, the Age Discrimination in Employment Act of 1967, as amended, Title
VII of the Civil Rights Act of 1964, as amended, the Americans with Disabilities
Act, Section 1981 (42 U.S.C. ss. 1981) of the Civil Rights Act of 1966, the Fair
Labor Standards Act, the Equal Pay Act, the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), the Family and Medical Leave Act, and the New
York State Human Rights Law.
3. This Agreement shall not in any way be construed as an admission by
the Releasees of any liability, or of any wrongful, discriminatory, or unlawful
acts whatsoever against Employee or any other person, and the Releasees
specifically disclaims any liability to or wrongful, discriminatory, or unlawful
acts against Employee or any other person, on the part of the Releasees.
4. Except for the purpose of seeking enforcement of the terms of this
Agreement,
Employee agrees that to the extent consistent with applicable law, he will not
file or cause to have filed or instituted any civil action, complaint, charge or
other proceeding of any nature or description against the Releasees before any
judicial, administrative, arbitral or other forum based upon or arising out of
any claims, whether asserted or unasserted, that he may have as of the date of
this Agreement and which are the subject of this release. In addition, in the
event that such an action is brought, Employee expressly waives, to the extent
consistent with applicable law, any claim to any form of monetary or other
damages, or other form of recovery or relief, in connection with such action or
in connection with any action brought by a third party on his behalf.
5. Employee acknowledges that he has received a copy of this Agreement,
that the Company advised the Employee to consult an attorney regarding this
Agreement, and that he has done so, or declined to do so. Employee further
acknowledges that he has had no less than twenty-one (21) days in which to
consider, execute, and return this Agreement.
6. This Agreement will not become effective until seven (7) days after
the date Employee signs this Agreement below, and Employee may revoke this
Agreement within seven (7) days after the date this Agreement is signed by the
Employee, provided that such revocation is in writing signed and delivered to
the Company.
7. Employee further acknowledges, represents, and warrants that he has
carefully read this Agreement; that he fully understands the terms, conditions,
significance and consequences of this Agreement; and that the Employee has
executed this Agreement knowingly and voluntarily, and of his own free will.
TELEBYTE TECHNOLOGY, INC.
By: /s/ Kenneth S. Schneider Dated: January 20, 1999
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Kenneth S. Schneider
/s/ Joel A. Kramer Dated: January 20, 1999
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Joel A. Kramer, Individually
(Acknowledgment continued on following page)
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STATE OF )
) ss.:
COUNTY OF )
On ______________, 1999, before me, personally came,
_________________ to me known, and known to me to be the individual described
in, and who executed the foregoing Agreement and General Release, and duly
acknowledged to me that he executed same.
------------------------
Notary Public
STATE OF )
) ss:
COUNTY OF )
On_______________, 1999, before me personally came
_____________________ to me known, who, by me duly sworn, did depose and say
that deponent is the __________________ of Telebyte Technology, Inc. the
corporation described in, and which executed the forgoing Agreement and General
Release, and that deponent signed deponent's name by order of the Board of
Directors of such corporation.
--------------------------
Notary Public
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