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EXHIBIT 10.211
EMPLOYMENT TERMINATION AND RELEASE AGREEMENT
This EMPLOYMENT TERMINATION AND RELEASE AGREEMENT made as of this 11th
day of March, 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 Xxxxxx X. Tek, an individual,
currently residing at the address set forth under such individual's signature
below (the "Executive" and collectively with Xxxxxx referred to herein as the
"Parties").
WHEREAS, Xxxxxx and Tek are parties to (i) that certain Employment
Agreement dated as of June 11, 1998 (the "Employment Agreement"); (ii) that
certain Supplemental Executive Retirement Plan (the "SERP Agreement") and Split
Dollar Agreement (together with the SERP Agreement, the "Deferred Compensation
Agreements") each dated as of July 15, 1996; and (iii) that certain Promissory
Note (the "Note") and Pledge Agreement (the "Pledge Agreement" and together
with the Note, the "Loan Documents"), each dated December 16, 1996 and issued
by Employee to Xxxxxx; and
WHEREAS, Xxxxxx and Tek desire to end Tek's employment relationship
with Xxxxxx in an amicable manner on or about March 12, 1999, in accordance
with the terms of this Agreement and provide for a settlement and termination
of their respective obligations under the Employment Agreement, the Deferred
Compensation Agreements, and the Loan Documents.
NOW THEREFORE, for value received and in consideration of the mutual
agreements and waivers contained herein, the Parties agree as follows:
1. SEPARATION. Tek agrees that his employment with Xxxxxx will end on the
date (the "Termination Date") which is the earlier of (i) a date
specified by Tek, which shall be no earlier than March 12, 1999, in a
notice delivered by Tek to the Company that he has entered into an
employment agreement that requires his termination of employment with
Xxxxxx no later than such date specified by Tek; and (ii) a date
specified by Xxxxxx, which date shall be no later than 3 months after
the date hereof. Tek 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
Tek obtained from Xxxxxx or from any of its customers or employees.
2. OBLIGATIONS OF THE PARTIES. In full settlement of Xxxxxx'x obligations
to Tek under the Employment Agreement and the Deferred Compensation
Agreements and Tek's obligations to Xxxxxx under the Loan Documents,
and in consideration of the agreements and waivers under Sections 3
and 4 hereof, Xxxxxx and Tek agree as follows:
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1. On the Termination Date, the obligations of Tek to Xxxxxx
under the Loan documents are deemed satisfied and paid in
full. In connection therewith, Xxxxxx shall return the Note
to Tek marked "canceled/paid in full" and Xxxxxx shall
promptly take all reasonable steps requested by Tek to cause
the release of the collateral pledged under the Pledge
Agreement, including delivering a notice thereof to Xxxxxxx
Xxxxx under the Stock Account Agreement (as defined under the
Pledge Agreement). Xxxxxx and Tek agree that the cancellation
of the Note results in cancellation indebtedness income to
Tek and not additional compensation under any employment
arrangement. Both of the Parties agree to respect this
characterization for all tax purposes.
2. Xxxxxx hereby agrees that, effective upon the Termination
Date, Tek shall, automatically and without any further action
required by Xxxxxx or Tek, be vested in 25,000 of the 50,000
unvested (prior to the date hereof) stock options issued to
Tek under the Xxxxxx Communications Corporation 1996 Plan,
which options have an exercise price of $3.42/share.
3. Xxxxxx hereby agrees that, effective upon on the Age
Discrimination Waiver Effective Date (as defined in Section 4
hereof), Tek shall, automatically and without any further
action required by Xxxxxx or Tek, be vested in the remaining
25,000 unvested (after giving effect to the preceding
paragraph) stock options issued to Tek under the Xxxxxx
Communications Corporation 1996 Plan, which options have an
exercise price of $3.42/share.
4. Xxxxxx hereby agrees that notwithstanding anything to the
contrary contained in any of the plans governing, or
agreements evidencing, the options granted to Tek by the
Company, each of the vested options held by Tek, including
those vested after giving effect to paragraphs 2b and 2c
hereof, may be exercised by Tek on or before December 31,
2000.
5. Each of the parties agree that, the Employment Agreement,
Deferred Compensation Agreements and Loan Documents shall be
terminated and of no further force and effect on and after
the Termination Date, except that, notwithstanding the
foregoing, Tek's right to indemnification as an officer or
director of the Company, under the terms of any agreement
between Xxxxxx and Tek, the organizational documents of
Xxxxxx or applicable law, shall be continue and survive
hereunder to the same extent as if Tek remained an officer or
director of the Company.
3. WAIVER AND RELEASE BY XXXXXX. Xxxxxx agrees that, in exchange for
Tek's performance of its obligations under the Agreement, Xxxxxx
hereby completely releases and discharges Tek from any and all claims,
charges, actions and causes of action of any kind or nature that
Xxxxxx once had or now has whether arising out of the employment or
separation of employment with Tek, and whether such claims are now
known or unknown to Xxxxxx. Xxxxxx further agrees that it will not
bring any such charges, claims or actions against Tek
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in the future arising from events occurring prior to the date hereof.
4. WAIVER AND RELEASE BY TEK. Tek agrees that, in exchange for Xxxxxx'x
performance of its obligations under the Agreement:
1. Tek's release/waiver of claims. Tek (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 Tek's 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 Tek 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 Tek.
2. Tek's release of all claims. Xxxxxx and Tek 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. TEK 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, Tek's waiver and release
under the Age Discrimination in Employment Act of 1967, shall
only be effected as follows:
(1) Tek shall deliver to Xxxxxx a fully executed waiver
letter substantially in the form of Exhibit A
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 Tek 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 Tek by sending a written
letter of revocation by certified mail, return
receipt requested, to Xxxxxxx X. Xxxxxxxx, General
Counsel, c/o Paxson Communications Corporation, 000
Xxxxxxxxxx Xxxx Xxxx, Xxxx Xxxx Xxxxx, Xxxxxxx
00000.
(3) If Tek 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 Tek, become final and binding upon
Tek 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
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Age Discrimination Waiver Letter, it is the express
intent of Tek 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 Tek in exchange
for the benefits conferred by Xxxxxx to Tek under
Section 2c hereof. Accordingly, Tek agrees that in
the event the Age Discrimination Waiver Letter is
deemed ineffective or unenforceable for any reason,
then the Age Discrimination Waiver Effective Date
shall be deemed not to have occurred and the
benefits conferred upon Tek under Section 2c 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 Tek at the time of any
such forfeiture.
5. INFORMED, VOLUNTARY SIGNATURE.
1. Tek agrees that he 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, Tek agrees that he has not relied on any
representation or statement not set forth in this document.
2. Tek agrees that he 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 become effective and the agreements of
the Parties hereto 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 Tek 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 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.
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.
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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 Tek's 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. Tek 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 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.
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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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