SEVERANCE AGREEMENT AND RELEASE
This Severance Agreement and Release (the "Agreement") is made
effective as of November 21, 1996, by and between Xxxxxxx X. Xxxxxxx,
("Executive") on the one hand, and MobileMedia Corporation, a Delaware
corporation ("Holdings"), and MobileMedia Communications, Inc, a Delaware
corporation ("Communications" and collectively with Holdings, the "Companies")
on the other hand.
RECITALS
WHEREAS, Executive and the Companies are parties to an employment
contract dated as of July 22, 1996 (the "Contract") providing for the employment
of the Executive as the Chief Executive Officer and Director of the Companies
and similar positions at affiliates of the Companies, all as set forth in
Appendix A (collectively, the "Positions") (such other employers, collectively
the "Affiliates");
WHEREAS, Executive's employment was previously terminated pursuant to
Section 5(a) of the Contract; and
WHEREAS, the Executive has agreed to execute a release of claims
relating to his termination of employment and to provide certain services on the
terms and conditions set forth herein and to confirm that certain obligations of
the Executive and the Companies under the Contract are continuing;
AGREEMENT
NOW, THEREFORE, the parties hereby agree as follows:
1. RESIGNATION.
The Companies and the Executive confirm that Executive's termination
of employment pursuant to Section 5(a) of the Contract and his resignation from
the Positions including, without limitation, his positions as Chief Executive
Officer and Director of the Companies, became effective as of November 20, 1996
(the "Resignation Date"). Executive confirms that, except as provided under
Sections 3 and 5 hereof, all obligations of the Companies pursuant to the
Contract have been satisfied.
2. PAYMENT TO EXECUTIVE FOR RELEASE AND CONTINUING COOPERATION.
No later than November 21, 1996, Communications shall pay or cause to
be paid to the Executive $75,000 in consideration for the release of claims set
forth in Section 6 of this Agreement and Executive's obligation to provide
continued cooperation set forth in Section 4(b) of this Agreement. Executive
acknowledges the prior payment of this consideration in full. Communications
shall also reimburse Executive for his reasonable legal fees in connection with
negotiation of this Agreement up to $2,500.
3. CONTINUING COVENANTS OF THE COMPANIES PURSUANT TO THE CONTRACT.
(a) Communications shall make or cause to be made such payments
as are necessary to continue in effect, until the first anniversary of the
Resignation Date, or such earlier date as the Executive begins employment
with another employer, the Life and Long-Term Disability Insurance
described in Section 4(c) of the Contract.
(b) Communications shall make or cause to be made all COBRA
benefit payments on behalf of the Executive and his dependents until the
first anniversary of the Resignation Date, or such earlier date as the
Executive begins employment with another employer, in full satisfaction of
its obligations under Section 5(a)(iii) of the Contract.
(c) The Companies shall continue their indemnification
obligation as set forth in Section 2(e) of the Contract.
(d) Executive shall retain his vested "Service Options" (all of
which became vested and exercisable on November 20, 1996 for a period of 10
years from August 30, 1996) as provided in Section 5(a)(i) of the Contract.
4. CONTINUING COVENANTS OF THE EXECUTIVE.
(a) Executive shall comply fully with the provisions of Sections
6 and 7 of the Contract, which provisions shall remain in full force and
effect.
(b) Executive shall cooperate fully with the Companies in any
litigation, investigation or other governmental proceeding (collectively
"Proceeding") to which any of the Companies or any affiliate is a party or
may become involved. Company shall pay Executive's reasonable out-of-pocket
expenses in connection therewith. All such assistance shall be provided at
mutually convenient times which are reasonable, consistent with the nature
of the proceeding and such assistance shall be consistent with his
knowledge and responsibilities as a former holder of the Positions. Unless
otherwise compelled by process of law, Executive shall not be required to
provide more than 50 hours of total services hereunder in connection with
Proceedings to which he is not a party.
5. PROVISIONS OF EMPLOYMENT CONTRACT TO CONTINUE
Regardless of whether this Agreement remains in effect, Sections 2(e),
6, 7, 8, 9 and 10 of the Contract shall remain in full force and effect.
6. RELEASE
(a) In consideration for the payments set forth in this
Agreement, Executive hereby releases and forever discharges the "Releasees"
hereunder, consisting of each of the Companies and, as the case may be,
each and every one of their associates, owners, stockholders, affiliates,
divisions, direct or indirect subsidiaries, predecessors, successors,
heirs, assigns, agents, directors, officers, partners, employees, insurers,
representatives, lawyers, employee welfare benefit plans and
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pension or deferred compensation plans under Section 401 of the Internal
Revenue Code of 1986, as amended, and their trustees, administrators and
other fiduciaries, and all persons acting by, through, under or in
concert with them, or any of them, of and from any and all manner of
action or actions, cause or causes of action, in law or in equity, suits,
debts, liens, contracts, agreements, promises, liability, claims,
demands, damages, loss, cost or expense, known or unknown, fixed or
contingent (hereinafter called "Claims"), which Executive now has or may
hereafter have against the Releasees, or any of them, by reason of any
matter, cause, or thing from the beginning of time to the date hereof
arising out of, based upon, or relating to the hire, employment,
remuneration or termination of Executive by the Releasees, or any of
them, including any Claims under 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, as amended; the Civil
Rights Acts of 1991 and 1866, as amended; the Equal Pay Act, as amended;
the Fair Labor Standards Act, as amended; the Consolidated Omnibus Budget
Reconciliation Act; the Employee Retirement Income Security Act of 1974,
as amended; the Fair Labor Standards Act; the New Jersey Law Against
Discrimination; the New Jersey Conscientious Employee Protection
Act; the Connecticut Fair Employment Practices Act and/or any other local,
state or federal law governing discrimination in employment and/or the
payment of wages or benefits.
(b) Notwithstanding any other provision of this Agreement, the
foregoing release shall not cover any claims which Executive may have to
enforce his rights under this Agreement including without limitation those
provided under Sections 3, 5, and this 6(b). If any part of the
consideration paid to Executive under this Agreement or the Contract is
avoided or required to be disgorged or turned over to any party and the
Executive repays such consideration to the Company, the Executive shall be
free to assert his rights under the Contract to such amount of the
consideration.
(c) In accordance with the Older Workers Benefit Protection Act
of 1990, Executive is aware of the following:
(1) Executive has the right to consult with an attorney
before signing this Agreement;
(2) Executive has 21 days from November 25, 1996 to
consider this Agreement; and
(3) Executive has seven days after signing this Agreement
to revoke this Agreement, and this Agreement will not be effective
until that revocation period has expired.
(d) Except as permitted by Section 6(b), Executive represents
and warrants:
(1) that he has not caused or permitted to be filed, nor
will he cause or permit to be filed on his behalf, any charge,
complaint or action before any federal, state or local administrative
agency or court against any of the Releasees by reason of actions
taken prior to the date hereof within the scope of the matters
released and that no other charge, complaint or action exists, and
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(2) that there has been no assignment or other transfer of
any interest in any Claim which he may have against the Releasees, or
any of them,
and Executive agrees to indemnify and hold the Releasees, and each of them,
harmless from any liability, Claims, demands, damages, costs, expenses and
attorneys' fees incurred by the Releasees, or any of them, as a result of
Executive asserting, or any assignee or transferee successfully asserting,
any such charge, complaint, action, assignment or transfer in violation of
Sections 6(d), or 6(d)(2), respectively..
(e) Executive agrees that, except for claims in a bankruptcy
proceeding related to any proceeding described in the second sentence of
Section 6(b), if he hereafter commences, joins in, or in any manner seeks
relief through any suit for any matter released hereunder, or in any manner
asserts against the Releasees, or any of them, any of the Claims released
hereunder, then Executive shall pay to the Releasees, and each of them, in
addition to any other damages caused to the Releasees thereby, all
attorneys' fees incurred by the Releasees in defending or otherwise
responding to said suit or Claim.
7. CONSTRUCTION OF AGREEMENT
This Agreement shall be construed as a whole in accordance with its
fair meaning and in accordance with the laws of the state of New Jersey. The
language of this Agreement shall not be construed for or against any particular
party. The headings used herein are for reference only and shall not affect the
construction of this Settlement Agreement and Release.
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8. AMENDMENT TO AGREEMENT
Any amendment to this Agreement must be in a writing signed by a duly
authorized representatives of the parties hereto and stating the intent of the
parties to amend this Agreement.
* * * * *
The parties have both read and fully considered this Agreement, consisting
of seven pages including eight numbered sections and Exhibit A, and are mutually
desirous of entering into such Agreement. Having elected to execute this
Agreement, to fulfill the promises set forth herein, and to receive thereby the
consideration set forth herein, Executive freely and knowingly, and after due
consideration, enters into this Agreement.
THE EXECUTIVE HAS AT LEAST 21 DAYS FROM THE DATE SET FORTH IN SECTION 6(c)(2)
ABOVE TO CONSIDER WHETHER TO EXECUTE THIS AGREEMENT, AND TO CONSULT WITH AN
ATTORNEY. THE EXECUTIVE HAS SEVEN DAYS FOLLOWING THE EXECUTION OF THIS
AGREEMENT TO REVOKE IT. REVOCATION MUST BE ORALLY COMMUNICATED BY THE
EXECUTIVE, WITH A WRITTEN CONFIRMATION POST MARKED WITHIN SUCH SEVEN DAY PERIOD,
TO VICE PRESIDENT AND GENERAL COUNSEL, MOBILEMEDIA COMMUNICATION, INC., 00
XXXXXXXXXX XXXX, XXXXXXXXXX XXXX, XX 00000, (000) 000-0000.
THEREFORE, the parties to this Agreement now voluntarily and knowingly
execute this Agreement on this 25 day of November, 1996.
/s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Xxxxxxx X. Xxxxxxx
MobileMedia Communications, Inc.
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Title: Chairman and Acting Chief Executive Officer
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MobileMedia Corporation
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Title: Chairman and Acting Chief Executive Officer
-------------------------------------------
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EXHIBIT A
CORPORATION POSITION
MobileMedia Corporation Director and Chief Executive
Officer
MobileMedia Communications, Inc. Director and Chief Executive
Officer
MobileMedia Communications, Director and Chief Executive
Inc. (California) Officer
MobileMedia PCS, Inc. Director and Chief Executive
Officer
MobileMedia Paging, Inc. Director and Chief Executive
Officer
FWS Radio, Inc. Director and Chief Executive
Officer
Locate Manager, Inc. Director
MobileMedia DP Properties, Director, Chief Executive
Inc. Officer and President
Dial Page Southeast, Inc. Director and Chief Executive
Officer
Radio Call Company of Director and Chief Executive
Virginia, Inc. Officer
Mobile Communications Director and Chief Executive
Corporation of America Officer
MobileComm Nationwide Director and Chief Executive
Operations, Inc. Officer
MobileComm of Florida, Inc. Director and Chief Executive
Officer
MobileComm of Tennessee, Inc. Director and Chief Executive
Officer
MobileComm of the Northeast, Director and Chief Executive
Inc. Officer
MobileComm of the Southeast, Director and Chief Executive
Inc. Officer
MobileComm of the Southeast Director and Chief Executive
Private Carrier Operations, Officer
Inc.
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MobileComm of the Southwest, Director and Chief Executive
Inc. Officer
MobileComm of the West, Inc. Director and Chief Executive
Officer
MobileComm of the Midsouth, Director and Chief Executive
Inc. Officer
MobileComm Holdings G.P. Director and Chief Executive
Corporation Officer
MobileComm Wireless Holdings, Director and Chief Executive
L.P. Officer
MobileComm Holdings L.P. Director and Chief Executive
Corporation Officer
MobileComm Wireless G.P. Director and Chief Executive
Corporation Officer
MobileComm Wireless Director and Chief Executive
Pennsylvania, L.L.C Officer
MobileComm Wireless South, Director and Chief Executive
L.P. Officer
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