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EXHIBIT 10.205.1
EMPLOYMENT SEPARATION AGREEMENT
This EMPLOYMENT SEPARATION AGREEMENT made as of this 24th day of
November, 1999, (this "Agreement") by and between Xxxxxx Communications
Corporation, with its principal place of business at 000 Xxxxxxxxxx Xxxx Xxxx,
Xxxx Xxxx Xxxxx, Xxxxxxx 00000-0000, and its subsidiaries, divisions and
affiliated entities (collectively, "Xxxxxx") and Xxxx X. XxXxxxxxx, an
individual, currently residing at the address set forth under such individual's
signature below (collectively including any entity to which he may assign his
rights under this Agreement or his estate, "XxXxxxxxx" and collectively with
Xxxxxx referred to herein as the "Parties").
WHEREAS, Xxxxxx and XxXxxxxxx are parties to that certain Employment
Agreement dated as of April 14, 1999 (the "Employment Agreement"); and
WHEREAS, Xxxxxx and XxXxxxxxx desire to end XxXxxxxxx'x employment
relationship with Xxxxxx on or before December 31, 1999, in accordance with the
terms of this Agreement and provide for a settlement and termination of their
respective obligations under the Employment Agreement.
NOW THEREFORE, for value received and in consideration of the mutual
agreements and waivers contained herein, the Parties agree as follows:
1. SEPARATION. XxXxxxxxx agrees that his employment with Xxxxxx will end
on or before December 31, 1999; provided however, that in the event
the Company elects to employ XxXxxxxxx past December 15, 1999, it
shall provide written notice to XxXxxxxxx on or before December 3,
1999, in which case XxXxxxxxx shall be entitled to his regular
compensation and benefits through December 31, 1999 (in addition to
any other severance compensation provided for herein), notwithstanding
the fact that his employment with the Company may terminate before
December 31, 1999. If no such written notice is received by XxXxxxxxx
on or before December 3, 1999, his employment hereunder shall
terminate as of December 15, 1999. The date of XxXxxxxxx'x employment
ending, which date shall be on or before December 31, 1999, shall be
referred to herein as the "Termination Date". XxXxxxxxx agrees that on
the Termination Date he will immediately return to Xxxxxx all property
(including keys, access cards, etc.) and documents (including all
copies of documents) which XxXxxxxxx obtained from Xxxxxx or from any
of its customers or employees during the term of his employment with
Xxxxxx.
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2. OBLIGATIONS OF THE PARTIES. In full settlement of Xxxxxx'x obligations
to XxXxxxxxx under the Employment Agreement and in consideration of
the agreements and waivers under Sections 3 and 4 hereof, Xxxxxx and
XxXxxxxxx agree as follows:
1. Xxxxxx shall continue to pay XxXxxxxxx his current base
salary and benefits through the Termination Date, or if such
date is not during the month of November, 1999, then the
Company shall continue to pay XxXxxxxxx such base salary and
benefits through December 31, 1999, regardless of the actual
Termination Date, such payments to be made in the manner
customary to which Xxxxxx has been making payments to
XxXxxxxxx during the course of his employment. XxXxxxxxx
shall be paid any accrued and unpaid or reimbursed salary or
expenses through the Termination Date.
2. Xxxxxx shall pay XxXxxxxxx a xxxxxxxxx payment in lieu of any
other severance under the Employment Agreement (other than
the stock options provided for herein) (but exclusive of any
amounts payable to XxXxxxxxx as contemplated by Section 1)
equal to six (6) months of his base salary in effect as of
the Termination Date. Such severance payment shall to be paid
in the manner customary to which Xxxxxx has been making
salary payments to XxXxxxxxx during the course of his
employment but in any event the entire amount of severance
shall be paid in full on or before March 31, 2000.
3. Xxxxxx and XxXxxxxxx hereby agree that, (i) effective on the
Termination Date, XxXxxxxxx shall automatically be vested in
60,000 of the 180,000 unvested stock options granted under
the Employment Agreement, which options have an exercise
price of $7.25 per share; (ii) effective upon the expiration
of the Age Discrimination Waiver Effective Date, XxXxxxxxx
shall, automatically and without any further action required
by Xxxxxx or XxXxxxxxx, be vested in an additional 10,000 of
such 180,000 unvested stock options granted under the
Employment Agreement which options have an exercise price of
$7.25 per share, and (iii) effective upon the Termination
Date, 110,000 of such 180,000 unvested stock options granted
under the Employment Agreement shall lapse and no longer be
eligible for vesting to XxXxxxxxx. Concurrently with the
execution hereof, the Company and XxXxxxxxx shall enter into
a Stock Option Grant Agreement substantially in the form of
Exhibit C hereto, and an Addendum and Modification to
Non-Qualified Stock Option Agreement incorporating the
changes to the stock option grant to reflect the revised
terms of the stock options described herein. The Company and
XxXxxxxxx acknowledge that the stock options shall be
exercisable for a 180 day period commencing on the
Termination Date, if such date occurs during the Company's
"trading window" for senior executives, or the date on which
the next trading window opens for senior executives, in each
case as notified by the Company to XxXxxxxxx, and that
XxXxxxxxx would be subject to SEC Rule 144 filing
requirements for the period commencing 90 days after the
Termination Date.
4. Each of the parties agree that, the Employment Agreement
shall be terminated and of no further force and effect on and
after the Termination Date, except that, notwithstanding the
foregoing, XxXxxxxxx'x right to indemnification as an officer
and/or director of the Company, under the terms of any
agreement between Xxxxxx and XxXxxxxxx, the
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organizational documents of Xxxxxx or applicable law, shall
continue and survive hereunder to the same extent as if
XxXxxxxxx remained an officer or director of the Company.
5. XxXxxxxxx hereby agrees to execute and distribute the
Resignation Letter attached hereto as Exhibit A.
3. WAIVER AND RELEASE BY XXXXXX. Xxxxxx agrees that, in exchange for
XxXxxxxxx'x performance of its obligations under the Agreement, Xxxxxx
hereby completely and irrevocably releases and forever discharges
XxXxxxxxx from any and all claims, charges, complaints, liabilities,
obligations, promises, agreements, controversies, damages, suits,
rights, demands, actions, causes of action, grievances, costs, losses,
debts, expenses (including attorneys fees and costs)of any kind or
nature that Xxxxxx once had or now has or may have prior to the
Termination Date whether or not arising out of the employment or
separation of employment with XxXxxxxxx, and whether now known or
unknown to Xxxxxx suspected or unsuspected, fixed or contingent,
existing or occurring as of the date this Agreement becomes effective.
Xxxxxx further agrees that it will not bring any such charges, claims
or actions against XxXxxxxxx in the future arising from events
occurring prior to the Termination Date hereof.
4. WAIVER AND RELEASE BY XXXXXXXXX. XxXxxxxxx agrees that, in exchange
for Xxxxxx'x performance of its obligations under the Agreement:
1. XxXxxxxxx'x release/waiver of claims. XxXxxxxxx (on his own
behalf and on behalf of his heirs or personal representatives
or any other person who may be entitled to make a claim on
XxXxxxxxx'x behalf or through him) hereby completely releases
and discharges Xxxxxx from any and all claims, charges,
actions and causes of action of any kind or nature that
XxXxxxxxx once had or now has whether arising out of his
employment or separation of employment with Xxxxxx, and
whether such claims are now known or unknown to XxXxxxxxx;
provided, however, nothing herein shall limit XxXxxxxxx'x
right to indemnification as an officer and/or director of the
Company.
2. XxXxxxxxx'x release of all claims. Xxxxxx and XxXxxxxxx
realize that there are many laws and regulations relating to
employment relationships, including Title VII of the Civil
Rights Act of 1964, as amended; the Age Discrimination in
Employment Act of 1967, as amended; the Americans with
Disabilities Act of 1990; the National Labor Relations Act,
as amended; the Civil Rights Act of 1866, as amended; the
Employee Retirement and Income Security Act; and various
state constitution provisions and human rights laws as well
as the laws of contract and tort. XXXXXXXXX INTENDS BY
SIGNING THIS AGREEMENT TO RELEASE ANY AND ALL OTHER RIGHTS
AND CLAIMS THAT HE MAY HAVE AGAINST XXXXXX UNDER ALL SUCH
LAWS OR REGULATIONS.
3. Waiver of Age Discrimination Claims. Notwithstanding anything
to the contrary contained herein, XxXxxxxxx'x waiver and
release under the Age Discrimination in Employment Act of
1967, shall only be effected as follows:
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(1) XxXxxxxxx shall deliver to Xxxxxx a fully executed
waiver letter substantially in the form of Exhibit B
annexed hereto (the "Age Discrimination Waiver
Letter") no sooner than 21 days after the date
hereof and no later than 25 days after the date
hereof.
(2) The Age Discrimination Waiver Letter shall be
revocable by XxXxxxxxx for seven days (the
"Revocation Period") following his delivery thereof
to Xxxxxx in accordance with Section 4c(i) hereof
and such revocation shall be made by XxXxxxxxx by
sending a written letter of revocation by certified
mail, return receipt requested, to Xxxxxxx X.
Xxxxxxxx, General Counsel, _ Xxxxxx Communications
Corporation, 000 Xxxxxxxxxx Xxxx Xxxx, Xxxx Xxxx
Xxxxx, Xxxxxxx 00000.
(3) If XxXxxxxxx does not revoke the Age Discrimination
Waiver Letter in accordance with the terms of
Section 4c(ii) hereof on or before the expiration of
the Revocation Period, then the Age Discrimination
Waiver Letter shall, automatically and without any
further act by XxXxxxxxx, become final and binding
upon XxXxxxxxx and Xxxxxx on the first day
succeeding the expiration of the Revocation Period
(such date referred to herein as the "Age
Discrimination Waiver Effective Date"). In
delivering the Age Discrimination Waiver Letter, it
is the express intent of XxXxxxxxx to waive his
rights under, and in accordance with the
requirements of, the Age Discrimination in
Employment Act of 1967 and that in the event of any
failure or ineffectiveness of such waiver, Xxxxxx
shall not have received the benefits intended to be
conferred upon it by XxXxxxxxx in exchange for the
benefits conferred by Xxxxxx to XxXxxxxxx under
Section 2 hereof. Accordingly, XxXxxxxxx agrees that
in the event the Age Discrimination Waiver Letter is
deemed ineffective or unenforceable arising out of
any action or inaction by XxXxxxxxx, then the Age
Discrimination Waiver Effective Date shall be deemed
not to have occurred and the benefits conferred upon
XxXxxxxxx under Section 2 hereof shall be forfeited
and, in addition to any other remedies Xxxxxx may
have at law or in equity with respect thereto,
Xxxxxx may, in order to effect such forfeiture,
reduce the number of vested but unexercised options
held by XxXxxxxxx at the time of any such
forfeiture.
5. INFORMED, VOLUNTARY SIGNATURE.
1. XxXxxxxxx and Xxxxxx each agree that he or it has had a full
and fair opportunity to review this Agreement and signs it
knowingly, voluntarily, and without duress or coercion.
Further, in executing this agreement, XxXxxxxxx and Xxxxxx each
agree that he or it has not relied on any representation or
statement not set forth in this document.
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2. XxXxxxxxx and Xxxxxx each agree that he or it was given a copy
of the Agreement and, before signing it, he had an opportunity
to consult an attorney of his own choosing, in fact, he did
consult with his own attorney before signing it.
3. This Agreement shall not become effective and the agreements
of the parties hereto shall not be enforceable in accordance
with the terms hereof until each Party has signed and
delivered to the other Party a fully executed copy of this
Agreement.
6. NO ADMISSION. The parties agree that this Agreement does not
constitute any admission by XxXxxxxxx or by Xxxxxx of any (i)
violation of any statute, law, regulation, order or other applicable
authority, or (ii) breach of contract, actual or implied.
7. CONFIDENTIALITY. The Parties agree that they will not at any time or
in any manner talk about, write about, disclose or otherwise publicize
(except by mutual consent, not to be unreasonably withheld or as
required by applicable law): (a) the terms or existence of this
Agreement or its negotiation, execution or implementation; or (b)
Xxxxxx'x proprietary and trade secret information. Each of the Company
and XxXxxxxxx agree not to make any disparaging statements about the
other after the date hereof.
8. MISCELLANEOUS.
1. This agreement shall be interpreted and enforced in
accordance with the laws of the United States of America and
the State of Florida.
2. This Agreement and its attachments represent the sole and
entire agreement between the Parties and supersedes any and
all prior agreements, negotiations and discussions between
the parties and/or their respective counsel with respect to
the subject matters covered in this Agreement.
3. Each party will bear its own attorneys' fees and costs
incurred in connection with XxXxxxxxx'x separation from
Xxxxxx.
4. In the event any of the Xxxxxx contact persons identified in
this Agreement are not available contact shall be made
directly to Xxxxxx X. Xxxxxx. XxXxxxxxx acknowledges and
agrees that contacts with Xxxxxx representatives other than
as provided for herein shall be ineffective and shall not be
deemed, constructive or actual notice of any kind.
5. If one or more paragraph(s) of this Agreement are ruled
invalid or unenforceable, such invalidity or unenforceability
shall not affect any other provision of the Agreement, which
shall remain in full force and effect.
6. As used in this agreement, the term "Xxxxxx" shall mean
Xxxxxx Communications Corporation as well as its
subsidiaries, divisions, and affiliated organizations as well
as
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their respective successors and assigns together with their
directors, officers, employees, agents, attorneys,
representatives, shareholders and their respective heirs and
personal representatives.
7. This agreement may not be modified orally but only by a
writing signed by both parties to this Agreement.
8. Any dispute regarding this Agreement shall be decided by
arbitration by a single arbitrator in West Palm Beach,
Florida, in accordance with the Expedited Arbitration Rules
of the American Arbitration Association then obtaining unless
the parties mutually agree otherwise; and, provided further,
that both parties will be entitled to all rights of discovery
in connection with such arbitration, including, without
limitation, all discovery rights described in the Florida
Rules of Civil Procedure. This undertaking to arbitrate shall
be specifically enforceable. The decision rendered by the
arbitrator will be final and judgement may be entered upon it
in accordance with appropriate laws in any court having
jurisdiction thereof.
IN WITNESS WHEREOF, this Agreement has been executed and delivered by
the parties as of the first date written above.
XXXXXX COMMUNICATIONS CORPORATION
By:
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Name:
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Title:
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XXXX X. XXXXXXXXX
000 Xxxxx Xxxx Xxx
Xxxx Xxxxx, Xxxxxxx 00000
