Exhibit 10.1
SEVERANCE AGREEMENT AND GENERAL RELEASE
This Severance Agreement and General Release (this "Agreement") is entered
into by and between Xxxx X. xx Xxxxx (including all successors, assigns and
heirs, "Employee") and Centennial Communications Corp., and any and all of its
affiliates, subsidiaries, predecessors, successors and assigns and any of its
employees, directors, officers and shareholders (collectively "Employer").
RECITALS
A. Employee resigned as an officer of Employer effective January 11,
2005 (the "Resignation Date").
B. Employee and Employer wish to permanently resolve any and all claims
and disputes, whether known or unknown, which exist or may exist on
Employee's behalf, including but not limited to any claims arising
out of Employee's employment with Employer and the termination of
that employment.
NOW THEREFORE, in exchange for the consideration, covenants and promises
contained herein, the receipt and sufficiency of which is hereby acknowledged,
Employer and Employee agree as follows:
1. As soon as practicable after the Resignation Date, Employer shall
pay Employee the amounts set forth on Exhibit 1 hereto, subject to
applicable tax withholdings. Employee acknowledges that Employee has
been paid for any and all allowances or payments due and owing to
Employee at the Resignation Date. Except as expressly provided
herein, Employee acknowledges that he is not entitled to receive any
vacation accrual or other payments or benefits after the Resignation
Date.
2. Effective on the Resignation Date, Employee will cease to
participate in any Employer sponsored plans and benefits, including
without limitation any employee stock option plan, employee stock
purchase plan and 401(k) plan. All funds previously contributed to
any stock purchase plan will be returned to Employee in accordance
with the terms of such plan.
3. Employee hereby irrevocably and expressly fully waives, releases,
acquits and forever discharges Employer from any and all claims,
charges, complaints, liabilities, allegations, demands, injuries,
debts, breaches, violations, acts or omissions and causes of action,
known or unknown, suspected or unsuspected, past or present,
foreseen or unforeseen, in law or in equity which Employee now has,
ever had or may hereafter have against Employer arising out of,
directly or indirectly, or in any way relating to, Employee's
employment with Employer or the termination of such employment,
including any claims pursuant to any local, state,
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federal, or other laws, statutes or regulations including without
limitation, Commonwealth of Puerto Rico and Dominican Republic laws
(collectively, "Claims").
4. Employee further covenants not to, directly or indirectly, bring any
such Claims against Employer. Employee represents to Employer that
he is the sole owner of any and all Claims that he is relinquishing
by executing this Agreement and that no other person has any
interest in any such Claims. Employee acknowledges that he has had
the benefit of advice of competent legal counsel with respect to the
decision to enter into this Agreement.
5. Employee represents and warrants to Employer that on or prior to the
date hereof (except as set forth on Schedule 1 hereto), Employee has
(i) returned to Employer all keys, vehicles, computers, telephones,
beepers, inventory and/or any other property of Employer including
any and all confidential and proprietary information that is in
Employee's possession or control and will make no further use of
same after the date hereof and (ii) repaid Employer all amounts
owing to Employer on account of advances, other expenses or
otherwise ("Owed Amounts"). Employee acknowledges and agrees that in
order to recoup any Owed Amounts, Employer may set-off any Owed
Amounts against any amounts to be paid by Employer to Employee
hereunder. Employer hereby waives any rights it had to reimbursement
by Employee of any Travel Payment (as defined in Section 5.1 of
Employee's employment agreement).
6. Employee understands, acknowledges and agrees that he is waiving any
and all Claims, which include without limitation, claims of wrongful
discharge, breach of contract, lost wages, emotional distress,
claims under Title VII of the Civil Rights Act of 1964, the Civil
Rights Act of 1991, the Age Discrimination in Employment Act, as
amended, the Americans with Disabilities Act, the Federal
Rehabilitation Act of 1973, Employee Retirement Income Security of
1974, as amended, the Equal Pay Act of 1963, claims of unjustified
dismissal (Law 80 of May 30, 1976); benefits of any kind, damages of
any kind, any claim on wages under Puerto Rico's Civil Code; all
claims involving violations of the Employer's rules, policies and
procedures; wage and salary claims; Act No. 96 of June 26, 1956; Act
Xx. 000 xx Xxxx 00, 0000, Xxx No. 289 of 1946; Act No. 180 of July
27, 1998; Act No. 84 of August 1, 1995; Act No. 379 of May 15, 1948
and Act No. 148 of June 30, 1969; discrimination on account of sex,
religion, race, age, political ideas, social condition or origin,
national origin, disability or any other reason prohibited by Puerto
Rico Act Xx. 000 xx Xxxx 00, 0000, Xxxxxx Xxxx Xxx Xx. 00 xx 0000,
Xxxxxx Xxxx Act Xx. 00 xx Xxxxx 00, 0000, Xxxxxx Xxxx Act No. 3 of
March 13, 1942, the Constitution of the Commonwealth of Puerto Rico,
and any other Civil Rights laws; Family and Medical Leave Act;
Federal Rehabilitation Act of
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1973; Puerto Rico Act Xx. 00 xx 0000; Xxxxxx Xxxx Xxx No. 115 of
December 20, 1991; the Workers' Compensation Law of Puerto Rico;
Puerto Rico Act Xx. 00 xx Xxxxx 00, 0000; Xxxxxx Xxxx Xxx Xx. 000 xx
Xxxx 00, 0000 (XXXXX); the Insurance Code of Puerto Rico; the
Occupational Safety and Health Act (OSHA); Puerto Rico Safety and
Health Act of 1975 (PROSHA); the Consolidated Omnibus Budget
Reconciliation Act of 1985 ("COBRA"); the Health Insurance
Portability and Accountability Act of 1996; or under any other
federal, state or Commonwealth of Puerto Rico or Dominican Republic
law, including Article 1802 and 1803 of the Civil Code of Puerto
Rico and all statutes on libel and defamation, malicious prosecution
and further including without limitation any other federal, state or
local laws and regulations relating to employment and/or employment
discrimination, including any Commonwealth of Puerto Rico or
Dominican Republic laws.
7. Each party hereto promises and agrees that, unless compelled by
legal process, it will not disclose to any third party (including,
without limitation, any present or former employee of Employer) and
will keep confidential the fact or terms of this Agreement,
including without limitation the amounts referred to in this
Agreement. Each party hereto may disclose the terms contained herein
to attorneys, accountants, immediate family members and other
professional advisors to whom the disclosure is necessary to
accomplish the purposes for which such party has contacted such
advisors. Employer intends to file this Agreement with the
Securities and Exchange Commission, to the extent required by
applicable rules and regulations.
8. Employee acknowledges that due to the position Employee has occupied
and the responsibilities Employee has had while employed by
Employer, Employee has received confidential and proprietary
information concerning Employer. Employee hereby promises and agrees
that, unless compelled by legal process, Employee will not disclose
to any third party and will keep confidential all such confidential
and proprietary information received, developed or learned by
Employee while employed by Employer, including without limitation
information concerning Employer's products, procedures, policies,
customers, sales, prices, financial information, technical
information, network information, employee information, marketing
strategies, and the terms of Employer's contracts with third
parties. In addition, Employee agrees to delete from his laptop
computer as soon as practicable following the date hereof, all
confidential information relating to Employer.
9. Employee agrees that for a period of three years from the
Resignation Date, he will not directly or indirectly induce or
attempt to induce any employee of the Employer to leave the employ
of the Employer. Employee agrees that he will not now, or in the
future, deliberately
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disrupt, damage, injure or interfere with the business of Employer.
10. Employee agrees that it will not now, or in the future, make any
disparaging statements (whether oral or written) concerning
Employer.
11. In exchange for the consideration to be received by Employee
hereunder, which Employee expressly acknowledges is sufficient and
satisfactory, Employee agrees that for a period of one year from the
Resignation Date, Employee agrees that he will not, directly or
indirectly, own, manage, control, participate in, consult with,
render services for or in any manner engage in any business in the
Service Area (as defined below) which shall compete with any
business conducted by the Employer on the Resignation Date. For
purposes of this covenant, the term Service Area means all
geographic areas in which the Company and its subsidiaries operate
on the Resignation Date. Employee acknowledges that he fully
understands the scope and meaning of this non-compete provision and
agrees that it is reasonable in light of the circumstances.
12. Employee hereby acknowledges and agrees that a violation of Section
8, 9, 10 or 11 will cause irreparable injury to Employer and
Employer will be entitled, in addition to any other rights and
remedies Employer may have at law or in equity, to seek an
injunction enjoining and restraining Employee from doing or
continuing to do any such violative act.
13. This Agreement and any documents referred to herein shall, in all
respects, be interpreted, enforced, and governed by and under the
laws of the State of New Jersey.
14. Employee acknowledges that nothing herein shall be interpreted to be
an admission of liability by Employer.
15. Employee agrees that all covenants contained in this Agreement shall
survive its execution.
16. If any provision of this Agreement is deemed to be invalid or
unenforceable, the remainder of the Agreement shall not be affected,
and a suitable and equitable provision shall be substituted for the
invalid and unenforceable provision in order to carry out, as far as
may be valid and enforceable, the intent and purpose of such invalid
or unenforceable provision.
17. Employee acknowledges and agrees that no promises or representations
were made to Employee by any person which do not appear written
herein and that Employee has not relied on any such promise or
representation. This Agreement contains the entire agreement of the
parties on the subject matter thereof. This Agreement may not be
modified except by a writing
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signed by the parties or as provided in paragraph 16. This Agreement
may be executed in one or more counterparts, each of which will be
deemed to be an original copy of this Agreement with signatures by
fax counting for all purposes as original signatures.
18. Employee hereby acknowledges that Employee has read and understands
this Agreement and that Employee signs this Agreement voluntarily,
with full knowledge of any and all rights which he may have, and
without coercion and was given the opportunity to review this
Agreement with his attorney. Employee further acknowledges that the
waivers Employee has made in this Agreement are knowing, conscious
and voluntary and are made with full appreciation that Employee is
forever foreclosed from pursuing any of the claims so waived. After
having sufficient time to carefully read all the terms and
conditions of this Agreement, Employee affirms that he completely
understands the same, as well as their consequences. Employee
expressly acknowledges that he has been informed that he can, and
must, seek legal counsel before signing this Agreement, and that a
reasonable time of at least twenty-one (21) days has been given to
read, examine, evaluate and seek legal counsel. If the Employee
signs this Agreement prior to the expiration of the twenty-one (21)
day period, the remainder of the period will be deemed as
voluntarily and expressly waived by the Employee. The parties agree
that Employee has a period of seven (7) days from the date this
Agreement is signed to revoke the same. For such reason, the parties
agree that any payments to be made to Employee hereunder will be
made after the seven (7) day period has expired.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date set forth below.
JANUARY 19, 2005
CENTENNIAL COMMUNICATIONS CORP.
By: /s/ Xxxxxxx X. Small
Title: Chief Executive Officer
XXXX X. XX XXXXX
By: /s/ Xxxx xx Xxxxx
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EXHIBIT 1
1. Side Letter. Benefits and other compensation described in letter agreement
dated the date hereof and attached hereto.
2. Base Salary. Nine (9) months base salary ($213,750) to be paid to Employee
over a 9-month period following the Transition Period (as defined in the
Side Letter), in accordance with the Employer's customary payroll
practices and subject to applicable tax withholdings.
3. Medical Benefits. Employer will continue to cover Employee under its
medical and dental benefits programs in accordance with prior practice and
subject to customary Employee contributions until the earlier to occur of
(i) the 1-year anniversary of the Resignation Date or (ii) the date that
Employee has obtained similar benefits from a subsequent employer.
Employee will notify Employer promptly upon the occurrence of clause (ii)
above.
4. Bonus. Employee shall be paid his accrued bonus for fiscal year 2005 in
the aggregate amount of $166,667, at such time as other executive officers
of Employer are paid their fiscal year 2005 bonuses.
5. Miscellaneous Costs. Employee shall be reimbursed in an amount not to
exceed $10,000 for his actual and documented costs incurred in connection
with relocation, job placement and other similar transition costs. All
receipts for such expenses must be submitted to the Chief Executive
Officer prior to May 31, 2005.
6. Reimbursement of Business Expenses. Employer shall reimburse Employee for
any and all outstanding reasonable business expenses in accordance with
Employer's policies incurred by Employee through the Resignation Date.
7. Personal Property. Employee shall be permitted to maintain possession of
his laptop computer and his wireless telephone. Employee will begin paying
monthly charges on such wireless phone, effective April 15, 2005.
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CENTENNIAL COMMUNICATIONS CORP.
January 19, 2005
Dear Xx. xx Xxxxx:
This letter is being delivered to you in connection with the Severance Agreement
and General Release (the "Release Agreement") dated the date hereof. Capitalized
terms used herein and not defined herein have the meanings given to such terms
in the Release Agreement.
Notwithstanding any provision in the Release Agreement to the contrary, during
the period of time from the Resignation Date to the 3-month anniversary of the
Resignation Date (the "Transition Period"), Employee shall continue as an
employee of Employer. In consideration for the services to be performed by
Employee to Employer during the Transition Period, Employee shall continue to
receive payment of his current base salary at a rate of $285,000 per annum (or
$71,250 for such 3-month period), paid bi-weekly in accordance with past
practice. In addition, during the Transition Period, Employee may exercise any
stock options in accordance with the terms of his option agreements. Except as
expressly provided herein or in the Release Agreement (including the exhibits),
Employee shall be entitled to no other compensation or other payments from
Employer.
Employee has voluntarily elected during the Transition Period that he does not
wish to participate in Employer's 401K plan, stock purchase plan or any other
Employee benefit plan.
On the 3-month anniversary of the Resignation Date, Employee shall, without any
further action on the part of Employee or Employer, be deemed to have been
terminated from the employ of Employer (such date being referred to as the
"Termination Date"). Accordingly, Employee shall have three months from the
Termination Date to exercise any vested stock options.
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During the Transition Period, Employee agrees to make himself available to
Employer for such purposes as Employer may reasonably request. During the
Transition Period, Employee agrees that he (1) is not an officer of Employer,
(2) has no authority to bind Employer to any contract or agreement (whether oral
or written) or to assume or create any obligation or responsibility, express or
implied, on behalf of or in the name of Employer and (3) will not hold himself
out as having any such authority.
CENTENNIAL COMMUNICATIONS CORP.
By: /s/ Xxxxxxx X. Small
Title: Chief Executive Officer
Accepted and Agreed
as of the date first above written
XXXX XX XXXXX
By: /s/ Xxxx xx Xxxxx
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