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EXHIBIT 10.10
SEPARATION AGREEMENT AND GENERAL RELEASE
This Separation Agreement and General Release ("Agreement") is made as of
17 of February 1997, by and between Americable, Inc., a Minnesota corporation
("Americable"), and Xxxx X. Xxxxxxx, a resident of Illinois ("Xxxxxxx").
WHEREAS, Xxxxxxx represents, understands and agrees that his employment
with Americable will be terminated on February 28, 1997.
WHEREAS, Xxxxxxx and Americable desire to fully and finally settle all
issues, differences and actual and potential claims between them, including, but
in no way limited to, any claim that might arise out of Xxxxxxx'x employment
with Americable and the termination thereof;
NOW, THEREFORE, in consideration of the mutual promises contained herein,
Xxxxxxx and Americable agree as follows:
(1) Americable agrees to provide Xxxxxxx the following payments and
benefits:
(a) After Xxxxxxx'x employment termination of February 28, 1997,
Americable will continue to pay on regular pay days Xxxxxxx'x
current gross salary of $6,865.39 biweekly, less deductions for
federal income tax, FICA and state income tax, until the earlier of
February 27, 1998 or at which time Xxxxxxx has become re-employed.
(i) For purposes of this Agreement re-employed shall include
acceptance by Xxxxxxx of a new position, consulting arrangement or
starting his own business. In addition, starting April 1, 1997,
Xxxxxxx agrees to provide monthly written notice to Xxxxxxx X.
Xxxxx, Americable, Inc., 0000 Xxxxxx Xxxxx Xx., Xxxx Xxxxxxx, XX
00000, as to his efforts to obtain re-employment and the results of
those efforts. Furthermore, should Xxxxxxx become re-employed as
defined herein, he shall provide immediate written notice to Xxxxxxx
X. Xxxxx. (ii) Xxxxxxx will be reimbursed up to $15,000 for out
placement services. However, no reimbursements will be paid until 20
days following the signing of this agreement.
(b) Xxxxxxx will be eligible to continue his benefit package (medical,
dental, life, and 401(k) incentive plan), with the same employee
contribution from Xxxxxxx that he is currently paying, excluding
participation within the ExecuCare program, from his termination
date of February 28, 1997, until the earlier of February 27, 1998 or
at which time Xxxxxxx has become re-employed.
(c) After Americable has completed its obligation to make payments under
paragraph 1(a) above, it shall pay Xxxxxxx additional compensation
for twenty days of earned paid time off.
(d) Xxxxxxx will be reimbursed for all normal business related expenses
incurred through February 28, 1997.
(e) Pursuant to Federal and Minnesota law, Xxxxxxx is hereby given
notice of his rights to continue his insurance coverage under
Americable's medical, dental, and life insurance plans at his own
expense for a period of up to eighteen (18) additional months. This
period will commence on the first of the month following the
completion of Americable's election to make payments under paragraph
1(a) above.
(f) All other items of compensation not specifically mentioned in
subparagraphs 1(a), 1(b), and 1(c) and 1(d) above, have been
resolved and are included in said severance pay, and Xxxxxxx has no
further claim to any other items of compensation or benefits.
(g) Xxxxxxx agrees that he was not entitled to the payments and benefits
outlined in this paragraph as a result of his employment with
Americable, but that the payments and benefits are being provided as
consideration for his acceptance and execution of this Agreement.
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(2) As an essential inducement to Americable to enter into this Agreement,
and as consideration for the foregoing promises of Americable, Xxxxxxx
agrees as follows:
(a) Xxxxxxx confirms and agrees that he shall not at any time divulge to
others or use for his own benefit any proprietary or confidential
information or trade secrets of Americable obtained during the
course of his engagement with Americable relating to sales,
products, customers, accounts, clients, technologies, formulas,
processes, methods, machines, manufacturers, compositions, ideas,
improvements, or inventions belonging to or relating to Americable,
its clients, its subsidiaries, affiliates, successors or associated
companies.
(b) By this Agreement, Xxxxxxx and Americable intend to settle any and
all claims which Xxxxxxx has or may have against Americable as a
result of Xxxxxxx employment with Americable and/or the cessation of
Xxxxxxx'x employment with Americable. For the consideration
expressed herein, Xxxxxxx hereby releases and discharges Americable,
its officers, employees, agents, assigns, insurers, representatives,
counsel, administrators, successors, shareholders, and/or directors
from all liability for damages or claims of any kind and agrees not
to institute any claim for damages or otherwise, by charge or
otherwise, nor authorize any other party, governmental or otherwise,
to institute any claim via administrative or legal proceedings
against Americable for any such claims including, but not limited
to, any claims arising under or based upon the Illinois Human Rights
Act, Ill. Rev. Stat. Ch 775 sec.sec. 1-101 et seq.; Minn. Stat.
sec.sec. 363.01 seq., Title VII of the Civil Rights Act, 42 U.S. C.
sec.sec. 2000e et seq.; the Age Discrimination in Employment Act, 29
U.S. C. sec.sec. 621 et seq.; or the Americans With Disabilities
Act, 42 U.S. C. sec.sec. 12101 et seq.; and any contract, quasi
contract, or tort claims, whether developed or undeveloped, arising
from or related to Xxxxxxx'x employment with Americable, and/or the
cessation of Xxxxxxx'x employment with Americable. Xxxxxxx and
Americable agree that by signing this Agreement, Xxxxxxx does not
waive any claims arising after the execution of this Agreement.
(3) Xxxxxxx has been informed of his rights to rescind this Agreement as
far as it extends to potential claims under Minn. Stat. sec.sec. 363.01
et seq. (prohibiting discrimination in employment) by written notice to
Americable within fifteen (15) calendar days following his execution of
this Agreement. To be effective, such written notice must either be
delivered by hand or sent by certified mail, return receipt requested,
addressed to Xx. Xxxxxxx X. Xxxxx, Americable, Inc., 0000 Xxxxxx Xxxxx
Xxxxx, Xxxx Xxxxxxx, Xxxxxxxxx 00000, delivered or post-marked within
such fifteen (15) day period. Xxxxxxx understands that Americable will
have no obligations under this Agreement in the event such notice is
timely delivered and any payments made as of that date pursuant to
paragraph 1, above, shall be immediately repaid by Xxxxxxx to
Americable.
(4) Xxxxxxx has been informed of his right to rescind this Agreement as far
as it extends to potential claims under the Age Discrimination in
Employment Act, 29 U.S. C. sec.sec. 621 et seq. by written notice to
Americable within seven (7) calendar days following his execution of
this Agreement. This Agreement shall not become effective or
enforceable until the seven (7) day period has expired. Xxxxxxx
understands that Americable will have no obligations under this
agreement in the event such notice is timely delivered and any payments
made as of that date by pursuant to paragraph 1, above, shall be
immediately repaid by Xxxxxxx to Americable.
(5) Xxxxxxx has also been informed that the terms of this Agreement shall
be open for acceptance by him for a period of twenty-one (21) days
during which time he may consider whether to accept this Agreement.
(6) Twenty days after the execution of this agreement, Americable will make
payment to Xxxxxxx in the amount of $25,000 in full satisfaction of
Xxxxxxx'x rights under the Stock option and Repurchase Agreement of
December 2, 1996. Xxxxxxx understands that he has no further right to
any stock or options under that agreement or otherwise. Xxxxxxx further
understands that he is bound to comply with the 6 month agreement not
to compete contained in Paragraph 13 (a) of that agreement.
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(7) The terms of this Agreement shall remain strictly confidential between
the parties hereto, and shall not be disclosed to third persons unless
required by law.
(8) Xxxxxxx understands and agrees that effective February 28, 1997, he
will no longer be authorized to incur any expenses or obligations or
liabilities on behalf of Americable.
(9) Xxxxxxx agrees that effective February 28, 1997, he shall:
(a) Discontinue the servicing of any of Americable's clients, and the
use of any property, facilities, and services provided by
Americable;
(b) Discontinue the use of any and all client lists, cases or contacts,
unless a written agreement thereon provides differently;
(c) Return to Americable equipment, customer lists and other documents,
and any other property of Americable;
(10) Xxxxxxx agrees that he will refrain from making any statements,
whether written or oral, which are disparaging of Americable, its
directors, officers, employees, agents, or representatives. Xxxxxxx
acknowledges that in the event he makes any such disparaging
statements, Americable shall have no further obligation to make any of
the payments set forth in paragraph 1 above. Americable agrees that it
will refrain from making any statements, whether written or oral,
which are disparaging of Xxxxxxx.
(11) This Agreement shall not in any way be construed as an admission by
Americable that it has acted wrongfully with respect to Xxxxxxx or any
other person, or that Xxxxxxx has any rights whatsoever against
Americable. Americable specifically disclaims any liability to, or
wrongful acts against Xxxxxxx or any other person, on the part of
itself, its directors, its employees, its representatives or its
agents.
(12) This Agreement contains the entire agreement of the parties with
respect to the subject matter hereof. Xxxxxxx hereby affirms that his
rights to payments or benefits from Americable are specified
exclusively and completely in this Agreement. Any modification of, or
addition to this Agreement must be in writing, signed by Americable
and Xxxxxxx.
(13) This Agreement constitutes a contract enforceable against either party
and shall be construed and enforced in accordance with the laws of the
State of Minnesota. Nothing contained in this Agreement is intended to
violate any applicable law. If any part of this Agreement is construed
to be in violation of a state and/or federal law, then that part shall
be null and void, but the balance of the provisions of this Agreement
shall remain in full force and effect.
(14) Xxxxxxx hereby affirms and acknowledges that he has read the foregoing
Agreement and that he has been advised to consult with an attorney
prior to signing this Agreement. Xxxxxxx agrees that the provisions
set forth in this Agreement are written in language understandable to
him and further affirms that he understands the meaning of the terms
of this Agreement and their effect. Xxxxxxx represents that he enters
into this Agreement freely and voluntarily.
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IN WITNESS WHEREOF, the parties have executed this Agreement by their
signatures below.
Dated: ---------------------------------------
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Xxxx X. Xxxxxxx
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Witness Americable, Inc.
Dated: --------------------------------------- By -------------------------------------------
Its ---------------------------------------
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Witness
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