Exhibit 10.59
SEVERANCE AGREEMENT
AND RELEASE OF CLAIMS
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This Severance Agreement And Release Of Claims ("Agreement"), effective
September 27, 2001, is made and entered into by and between Xxxxxxx Xxxxxx
("Xxxxxx") and Pac-West Telecomm, Inc. ("Pac-West" or "Employer").
RECITALS
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X. Xxxxxx has been employed by Pac-West in the position of Chief
Financial Officer since approximately October 1998.
X. Xxxxxx desires to separate from his employment at Pac-West Telecomm,
Inc. and pursue other employment opportunities.
C. Pac-West and Xxxxxx desire to resolve all differences between them
relating to Xxxxxx'x employment at Pac-West and the severance of that employment
by entering into this Severance Agreement and Release of Claims.
AGREEMENT
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1. In full consideration of the release of claims made by Xxxxxx in this
Agreement, and provided that Xxxxxx has not revoked this Agreement as provided
in paragraph 10(f), below, then Pac-West will provide the following:
a. within fourteen (14) days of Pac-West's receipt of the Agreement
signed by Xxxxxx, Pac-West will make a payment to Xxxxxx of One Hundred
Ninety-Six Thousand Four Hundred And Ninety-Five Dollars And Thirty-Two Cents
($196,495.32), less all applicable state and federal withholdings; and
b. within fourteen (14) days of Pac-West's receipt of the Agreement
signed by Xxxxxx, Pac-West will make a payment to Xxxxxx of Four Thousand Six
Hundred And Thirty-Four Dollars And Eighty Cents ($4,634.80), representing
Xxxxxx'x accrued, unused vacation time of five (5) days; and
c. on the effective date of Xxxxxx'x final termination of employment
with Pac-West pursuant to paragraph 2, below, Pac-West will issue a distribution
request from the Pac-West Telecomm, Inc. Executive Deferred Compensation Plan
for the total amount of Xxxxxx'x accrued, vested interest in the deferred
compensation plan. The distribution amount will be issued to Xxxxxx within seven
(7) days of receipt by Pac-West from the Plan Administrator.
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d. Pac-West will pay for Xxxxxx'x continued coverage for health
insurance benefits under COBRA beginning October 1, 2001 for seven (7) months,
ending with the final payment for coverage in April 2002; and
f. Pac-West will transfer title to Xxxxxx'x company vehicle to
Xxxxxx, a 1999 Suburban; and
f. Pac-West will permit Xxxxxx to continue to access Pac-West's
San Francisco office during normal business hours on Mondays, Tuesdays,
Wednesdays and Thursday until either (i) the San Francisco office is rented to
another tenant or (ii) Xxxxxx begins employment with a different employer,
whichever period of time is shorter, after which Xxxxxx shall no longer be
permitted to access the San Francisco office; and
g. Pac-West will pay the service fee for Xxxxxx'x T1 telephone
internet connection at Xxxxxx'x home for (i) a period of seven (7) months
(October 2001 through April 2002) or (ii) until Xxxxxx begins employment with a
different employer, whichever period of time is shorter, after which Xxxxxx
shall be solely responsible for all fees and costs associated with the T1
telephone internet connection at his home; and
x. Xxxxxx agrees to return all Pac-West company property
immediately and no later than the close of business on Tuesday, November 6,
2001; however, Xxxxxx shall be allowed to retain and keep the following company
property as his personal property under the terms of this Agreement:
(i) Nokia 6160M cellular telephone (service not included)
(ii) 1 of the 2 Hands Free Talk devices in Xxxxxx'x possession
(iii) HP LaserJet Printer
(iv) HP Desktop computer with Zip Drive
(v) Filing cabinet and desk chair
Xxxxxx agrees that these items and payments to him shall constitute the
entire amount of monetary and other property provided to Xxxxxx under this
Agreement. Xxxxxx agrees that he will not seek any further compensation for any
other claimed wages, bonuses, damage, costs, or attorneys' fees in connection
with Xxxxxx'x employment at Pac-West and the severance thereof.
2. The parties agree that Xxxxxx'x employment in the position of Chief
Financial Officer of Pac-West shall end on September 27, 2001, the effective
date of this agreement, and that Xxxxxx
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shall remain as an inactive employee of Pac-West on an unpaid leave of absence
until midnight on Friday, March 1, 2002, at which time his employment with
Pac-West shall terminate. Xxxxxx agrees that he shall not be entitled to any
additional benefits or compensation based on this unpaid leave of absence, other
than payments and other consideration described in this Agreement, and Xxxxxx
agrees that he will not seek any further compensation for any other claimed
wages, bonuses, damage, costs, or attorneys' fees in connection with Xxxxxx'x
employment at Pac-West and the severance thereof, other than the payment and
other property described in this Agreement.
3. This Agreement and compliance with this Agreement shall not be construed
as an admission by Pac-West of any liability whatsoever, or as an admission by
Pac-West of any violation of the rights of Xxxxxx or any person, violation of
any order, law, statute, duty, or contract whatsoever against Xxxxxx or any
person. Pac-West specifically disclaims any liability to Xxxxxx or any other
person for any alleged violation of the rights of Xxxxxx or any person, or for
any alleged violation of any order, law, statute, duty, or contract on the part
of Pac-West and, employees or agents or representatives of Pac-West.
4. Xxxxxx understands that various employment laws provide the right to an
employee to bring claims against an employer if the employee believes he/she has
been unlawfully discriminated against. These laws include:
Title VII of the Civil Rights Act of 1964
The Vietnam Era Veterans' Readjustment Assistance Act of 1974
The Employee Retirement Income Security Act of 1974
The Equal Pay Act
The Americans with Disabilities Act of 1990
The Civil Rights Act of 1991
The Family and Medical Leave Act of 1993
The California Fair Employment and Housing Act
The California Family Rights Act
Xxxxxx understands his rights under these Acts and agrees that he will
not file against Pac-West any claims based on any alleged violation(s) of these
Acts; PROVIDED, Xxxxxx may file a charge of violation of the Age Discrimination
in Employment Act with the Equal Employment Opportunity Commission, including a
challenge to the validity of this Agreement and may participate in any
investigation or proceeding conducted by the Equal Employment Opportunity
Commission regarding said Act.
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5. Xxxxxx gives up (waives) all his rights to damages or any other relief
Xxxxxx might otherwise be awarded on any claim related to or arising from his
employment at Pac-West or the conclusion and severance of that employment. This
release includes all statutory, contract, tort and other claims Xxxxxx might
otherwise make against Pac-West and/or anyone connected with Pac-West, including
but not limited to, Pac-West's current and former employees, officers,
directors, attorneys, or other agents.
6. Xxxxxx understands that the Age Discrimination in Employment Act of 1967
provides him with the right to bring a claim against Pac-West if he believes he
has been discriminated against on the basis of age. Xxxxxx understands his
rights under that Act and specifically agrees to give up (waive) any relief
available under the Act for any age discrimination occurring before the date he
signs this Agreement, subject to the provisions of paragraph 3, above. Xxxxxx
does not waive any claims against Pac-West for age discrimination that occurs
after this Agreement is signed.
7. Except as disclosure may be required by law and necessary for legitimate
law enforcement or compliance purposes, Xxxxxx and Pac-West agree that they will
keep the facts, terms, and amount of this Agreement confidential and that they
will not hereafter disclose any information concerning this Agreement to anyone.
Xxxxxx agrees not to make derogatory statements about Pac-West. Xxxxxx agrees to
provide information to management for inquiries that may arise regarding job
function related matters. Xxxxxx also agrees to fully cooperate and assist
Pac-West in resolving any and all claims, disputes, or lawsuits in connection
with any and all claims made against Pac-West during the course of Xxxxxx'x
employment.
8. Xxxxxx hereby agrees that all of his rights under section 1542 of the
Civil Code of the State of California are hereby waived. Section 1542 provides
as follows:
A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor.
9. Xxxxxx releases Pac-West and anyone connected with Pac-West from all
liability of any kind having to do with Xxxxxx'x employment with Pac-West. All
such liability is barred forever by this Agreement. However, notwithstanding
anything else in this Agreement, Pac-West hereby agrees to indemnify and defend
Xxxxxx, at Pac-West's expense, against any existing or future lawsuits or other
liabilities related to the company or its activities concerning matters which
occurred or are alleged to have occurred during, or arose out of, Xxxxxx'x
service as an officer or employee of Pac-West prior to the effective date of
this agreement, or related to Xxxxxx'x duties under paragraph 7 of this
Agreement.
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10. Xxxxxx understands and agrees that he: (a) Has carefully read and fully
understands all of the provisions of this Agreement; (b) Knowingly and
voluntarily agrees to all of the terms set forth in this Agreement; (c)
Knowingly and voluntarily intends to be legally bound by the same; (d) Has the
opportunity to review the Agreement for a full twenty-one (21) calendar days
before signing it, and need not sign this Agreement until after he has had it in
his possession for a full twenty-one (21) calendar days; (e) May consult with an
attorney regarding this Agreement, and Xxxxxx hereby is advised in writing to
consult with an attorney regarding this Agreement; (f) Has a full seven (7) days
after signing this Agreement in which to revoke this Agreement, and has been and
hereby is advised in writing that this Agreement shall not become effective or
enforceable until and unless this revocation period has expired; (g) Understands
that rights or claims under the Age Discrimination in Employment Act of 1967 (29
U.S.C. section 621, et. seq.) that may arise after the date this Agreement is
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executed are not waived.
11. In signing this Agreement, Xxxxxx has not relied upon any
representation or statement made by Pac-West or by any representatives or
attorneys of Pac-West about this Agreement. Xxxxxx is advised to consult with an
attorney prior to signing this Agreement.
12. This Agreement shall be binding upon the parties hereto and upon their
heirs, administrators, representatives, executors, successors, and assigns, and
shall inure to the benefit of said parties and each of them and to their heirs,
administrators, representatives, executors, successors, and assigns. Xxxxxx
expressly warrants that Xxxxxx has not transferred to any person or entity any
rights, causes of action, or claims released in this Agreement.
13. The parties hereto agree to submit any dispute arising out of the terms
or conditions of this Agreement, or breach thereof, exclusively to binding
arbitration in San Francisco before a neutral arbitrator pursuant to the
procedures established by the American Arbitration Association for resolution of
employment disputes.
14. Should any provision of this Agreement be declared or be determined by
an arbitrator empowered by this Agreement and/or by any court of competent
jurisdiction to be illegal, invalid, or unenforceable, the legality, validity,
and enforceability of the remaining parts, terms, or provisions shall not be
affected thereby, and said illegal, unenforceable, or invalid part, term, or
provision shall be deemed not to be a part of this Agreement.
15. This Agreement sets forth the entire agreement between the parties
hereto and fully supersedes any and all prior agreements or understandings,
written or oral, between the parties hereto pertaining to the subject matter
hereof.
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16. This Agreement may be executed in counterparts, and each party agrees
to accept facsimile copies of the signed Agreement in lieu of original
signatures.
Dated: 11/5/2001 /s/ Xxxxxxx X. Xxxxxx
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XXXXXXX XXXXXX
Dated: 11/6/2001 /s/ Xxxxx X. Xxxxxx
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PAC-WEST TELECOMM, INC.
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Xxxxxx /s/ REB Pac-West /s/ HWW
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