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EXHIBIT 1
SEPARATION AGREEMENT
This SEPARATION AGREEMENT (this "Agreement") is made as of September 21,
1999 by and between XXXXXX X. XXXXXXX, residing at 000 Xxxx Xxxx Xxxx, Xxxxxxxxx
Xxxx, Xxx Xxxxxx 00000 ("Xxxxxx Xxxxxxx") and TOTAL-TEL USA COMMUNICATIONS,
INC., a New Jersey corporation with offices at 000 Xxxxx Xxxx, Xxxxxx Xxxxx, Xxx
Xxxxxx 00000 (the "Company").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Employment Agreement dated May 5, 1999
by and between Xxxxxx Xxxxxxx and the Company (the "Employment Agreement"),
Xxxxxx Xxxxxxx has agreed to serve as Chairman of the Board of the Company until
December 31, 2001, on the terms and subject to the conditions set forth therein;
and
WHEREAS, Xxxxxx Xxxxxxx and the Company desire to terminate the
Employment Agreement on the mutually beneficial terms set forth herein.
NOW, THEREFORE, in consideration of the above mentioned premises, the
mutual covenants and agreements contained herein, and other good and valuable
consideration the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. TERMINATION OF EMPLOYMENT AGREEMENT.
(a) Termination of Employment Agreement. Xxxxxx Xxxxxxx and the
Company agree that the Employment Agreement shall be terminated as of 5:00 p.m.
on the Effective Date (as defined below), and shall have no further force or
effect, unless this Agreement is revoked by Xxxxxx Xxxxxxx on or prior to such
date pursuant to Section 10(h), in which case such termination of the Employment
Agreement shall not be effective.
(b) Resignation. Xxxxxx Xxxxxxx hereby resigns from the office of
Chairman of the Board and as a member of the Board of Directors of the Company
and from each position he holds at any subsidiary of the Company, such
resignations to be effective at 5:00 p.m. on October 7, 1999 (the "Effective
Date"), unless this Agreement is revoked by Xxxxxx Xxxxxxx on or prior to such
date pursuant to Section 10(h), in which case such resignations shall not become
effective and this Agreement shall be void and of no force and effect. The
Company hereby accepts the resignations of Xxxxxx Xxxxxxx as of the Effective
Date.
2. XXXXXXX RELEASE OF CLAIMS.
(a) General Release. Xxxxxx Xxxxxxx agrees, on his own behalf and on
behalf of his heirs, successors, agents, executors, administrators, and assigns
(collectively, the "Xxxxxxx Releasors"), to release the Company and its present
and former subsidiaries, affiliates, divisions, branches, agencies, and other
offices and its and their respective present and former
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successors, assigns, officers, agents, representatives, affiliates, attorneys,
fiduciaries, administrators, directors, stockholders, and employees
(collectively, the "Xxxxxxx Releasees") from any and all manner of actions,
causes of action, suits, judgments, executions, demands, debts, dues, duties,
accounts, bonds, agreements (other than those relating to the Options or as
otherwise provided herein), contracts, covenants, damages and all other claims
whatsoever, both in law and in equity, which the Xxxxxxx Releasors ever had, now
have or may in the future have against any or all of the Xxxxxxx Releasees for
or by reason of or in any way arising out of any cause, matter or thing existing
up to the Effective Date including, without limiting the generality of the
foregoing, for or by reason of or in any way arising out of any cause, matter or
thing relating to salary, wages, monies advanced, bonuses, expenses, director's
fees, retirement or pension allowances, participation in profits or earnings or
damages for wrongful dismissal (including but not limited to any discrimination
claim based on age, sex, race, religion, color, national origin, disability,
marital status, appearance or sexual orientation under federal, state or local
law, rule or regulation, and/or any claim for wrongful termination, defamation,
and any other claim, whether in tort, contract or otherwise). This release shall
not apply to any claims the Xxxxxxx Releasors may have relating to the Company's
performance of its obligations under this Agreement.
(b) ADEA Release. The Xxxxxxx Releasors further agree that they are
hereby releasing any and all claims that they may have under the Age
Discrimination in Employment Act connected with Xxxxxx Xxxxxxx'x employment with
the Company (or his separation therefrom) arising on or before the Effective
Date.
(c) Promise Not To Xxx On Claims Released. The Xxxxxxx Releasors
promise not to initiate any court or judicial-type proceeding against the
Company that involves any claim that they have released in Sections 2(a) and
2(b) of this Agreement. If a court determines that the Xxxxxxx Releasors or any
one of them have violated this release by suing the Company or any of the
Xxxxxxx Releasees they hereby agree that they will pay all costs and expenses of
defending against the suit incurred by the Company. Nothing in this Section 2(c)
shall be construed to prevent the Xxxxxxx Releasors or any one of them from
filing a charge of discrimination with, or participating in an investigation or
proceeding conducted by, the Equal Employment Opportunity Commission.
(d) Consultation With an Attorney. Xxxxxx Xxxxxxx acknowledges that he
has been advised to consult his own attorney prior to entering into this
Agreement and that he was afforded sufficient time to undertake such
consultation.
3. COMPANY RELEASE OF CLAIMS.
(a) General Release. The Company agrees on its own behalf and on
behalf of its present and former subsidiaries, affiliates, divisions, branches,
agencies, and other offices and its and their respective present and former
successors, assigns, officers, agents, representatives, affiliates, attorneys,
fiduciaries, administrators, directors, stockholders, and employees
(collectively, the "Company Releasors"), to release Xxxxxx Xxxxxxx and his
heirs, successors, agents, executors, administrators, and assigns (the "Company
Releasees") from any and all manner of actions, causes of action, suits,
judgments, executions, demands, debts, dues, duties, accounts, bonds, agreements
(other than those provided herein), contracts, covenants,
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damages and all other claims whatsoever, both in law and in equity, which the
Company Releasors ever had, now have or may in the future have against any or
all of the Company Releasees for or by reason of or in any way arising out of
any cause, matter or thing existing up to the Effective Date. This release shall
not apply to any claims the Company Releasors may have relating to Xxxxxx
Xxxxxxx'x performance of his obligations under this Agreement, or to any claim
for recovery by the Company of short-swing profits under Section 16(b) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
(b) Promise Not To Xxx On Claims Released. The Company Releasors
promise not to initiate any court or judicial-type proceeding against the
Company Releasees that involves any claim that they have released in Section
3(a) of this Agreement. If a court determines that the Company Releasors or any
one of them have violated this release by suing any of the Company Releasees
they hereby agree that they will pay all costs and expenses of defending against
the suit incurred by the Company Releasees.
4. CONSIDERATION.
(a) Severance Payment. In full satisfaction of all amounts outstanding
under the Employment Agreement and in consideration of the promises set forth
herein and other good and valuable consideration, the Company agrees to pay to
Xxxxxx Xxxxxxx xxxxxxxxx pay in the lump-sum amount of $650,000, which amount
shall be payable promptly (but in any event not later than three (3) business
days) following the execution and delivery hereof.
(b) Existing Options. The Company acknowledges and agrees that Xxxxxx
Xxxxxxx has been granted non-statutory stock options to purchase 120,222 shares
of the Company's common stock ("Common Stock"), which stock options
(collectively, the "Options") are exercisable as follows:
(i) 39,222 from the grant of April 15, 1997 are exercisable at
$7.25, per share;
(ii) 33,000 from the grant of November 3, 1992 are exercisable at
$0.5114, per share; and
(iii) 48,000 from the grant of February 2, 1992 are exercisable at
$0.5114, per share.
(c) Exercise of Options. The Company acknowledges and agrees that
Xxxxxx Xxxxxxx shall have ninety (90) days from the Effective Date to exercise
the Options, approval by the Board of Directors of the Company of this Agreement
constituting the determination by the Board that such 90-day period is
reasonable and appropriate.
5. TAXES AND BENEFITS; WITHHOLDINGS. The parties acknowledge and agree
that (i) federal, state and local tax withholdings will be made from the
payments provided for in this Agreement as may be required by law and/or in
accordance with the Company's benefit plans, and (ii) Xxxxxx Xxxxxxx shall be
solely responsible for the federal, state, and local and other taxes normally
paid by employees relating to these payments.
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6. REPRESENTATIONS AND WARRANTIES.
(a) Certain Representations and Warranties by Xxxxxx Xxxxxxx. Xxxxxx
Xxxxxxx represents and warrants to the Company that (i) this Agreement has been
duly executed and delivered by him and constitutes his legal, valid and binding
obligation, enforceable against him in accordance with its terms, (ii) the
execution, delivery, and performance by Xxxxxx Xxxxxxx of this Agreement will
not result in a violation or breach of, or constitute (with or without due
notice or lapse of time or both) a default (or give rise to any right of
termination, amendment, cancellation or acceleration) under, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, lease, license,
contract, agreement or other instrument or obligation to which Xxxxxx Xxxxxxx is
a party or by which any of his assets or properties may be bound, and (iii) the
execution, delivery, and performance by him of this Agreement will not violate
any order, writ, injunction, decree, statute, rule, or regulation applicable to
him.
(b) Certain Representations and Warranties by the Company. The Company
represents and warrants to Xxxxxx Xxxxxxx that (i) the execution, delivery, and
performance by the Company of this Agreement have been duly authorized by all
action required by law, its certificate of incorporation and bylaws, (ii) this
Agreement has been duly executed and delivered by the Company and constitutes a
legal, valid, and binding obligation of the Company, enforceable against it in
accordance with its terms, (iii) the execution, delivery, and performance by the
Company of this Agreement will not conflict with or result in any breach of any
provision of the articles of incorporation or bylaws of the Company, (iv) the
execution, delivery, and performance by the Company of this Agreement will not
result in a violation or breach of, or constitute (with or without due notice or
lapse of time or both) a default (or give rise to any right of termination,
amendment, cancellation or acceleration) under, any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, lease, license, contract,
agreement or other instrument or obligation to which the Company is a party or
by which any of its assets or properties may be bound, (v) the execution,
delivery, and performance by the Company of this Agreement will not violate any
order, writ, injunction, decree, statute, rule, or regulation applicable to the
Company or any of its properties or assets, and (vi) it has obtained directors
and officers liability insurance policies covering all officers and directors of
the Company, and such policies are in full force and effect on the date hereof.
7. NON-COMPETE, NON-DISPARAGEMENT AND CONFIDENTIAL INFORMATION.
(a) Company Business. Xxxxxx Xxxxxxx covenants and agrees that he will
not, during the period commencing on the Effective Date and ending on the date
twelve (12) months thereafter, directly or indirectly, in any capacity, engage
in or participate in the management, ownership, or operation of any business or
activity which directly competes with the business conducted by the Company (as
such business is conducted on the Effective Date) in the States of New York and
New Jersey.
(b) No Solicitation. Xxxxxx Xxxxxxx covenants and agrees that he will
not, during the period commencing on the Effective Date and ending on the date
twenty-four
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(24) months thereafter, directly or indirectly: (i) employ or solicit the
employment (or assist any third party to employ or solicit the employment) of
any person who was engaged by the Company as an employee on September 1, 1999
(provided that the foregoing prohibition shall not apply to his executive
assistant, or after October 7, 2000, to (A) any person whose employment is
involuntarily terminated by the Company or (B) any person who is not employed by
the Company at the time his employment is first solicited by Xxxxxx Xxxxxxx); or
(ii) call on any party that was a customer of the Company on the Effective Date
for the purpose of competing with the Company by soliciting, diverting or taking
away any customer of the Company (provided that after October 7, 2000 the
foregoing prohibition shall not apply to any customer from which the Company has
not billed or received a total of $10,000 in payments for products or services
during the six-month period prior to when such customer is first solicited by
Xxxxxx Xxxxxxx).
(c) Reasonable Restrictions. Xxxxxx Xxxxxxx recognizes and hereby
acknowledges that the restrictions imposed upon him in this Section 7 are
reasonable and are necessary for the protection of the business of the Company.
It is understood and agreed that this Section 7 shall not be deemed to be
violated merely because Xxxxxx Xxxxxxx owns stock or other equity interests in
an entity that is in competition with the Company, so long as a class of equity
securities of such entity is registered pursuant to the Exchange Act , and
Xxxxxx Xxxxxxx owns no more than five percent (5%) of the outstanding equity
securities of such class.
(d) Non-Disparagement. Neither party to this Agreement shall in any
way attempt to disparage or impair the reputation or good name of the other
party, the Company's divisions, affiliates, or subsidiaries, or any of the
Company's officers, directors or employees.
(e) Confidential Information. Xxxxxx Xxxxxxx hereby acknowledges that
during the course of his employment with the Company he came into contact with,
and had access to, information that is the property of the Company. Such
information includes, but is not limited to, business plans, present or
prospective customers, vendors, products, processes services or activities,
including the costing and pricing of such services or activities. Xxxxxx Xxxxxxx
covenants and agrees that he has not and will not utilize or disclose any of the
above described confidential information to any person(s) or entities for any
reason or purpose whatsoever, except in the performance of his duties for the
Company. The foregoing limitations shall not apply to any information that (i)
is or becomes public knowledge through no action or default on the part of
Xxxxxx Xxxxxxx; (ii) is approved by the Company in writing for disclosure to
specified third parties; or (iii) is required to be disclosed by Xxxxxx Xxxxxxx
pursuant to a court order or applicable rules and regulations.
(f) Rights and Remedies Upon Breach. In the event of any breach or
threatened breach by Xxxxxx Xxxxxxx of the covenants of Section 7, the Company
shall be entitled to such equitable and injunctive relief as may be available to
restrain Xxxxxx Xxxxxxx from the violation of the provisions hereof. Nothing
herein shall be construed as prohibiting the Company from pursuing any other
remedies available at law or in equity for such breach or threatened breach.
(g) Severability of Covenants. If any court determines that any of the
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covenants of this Section 7, or any part thereof, is invalid or unenforceable,
the remainder of the covenants shall not thereby be affected and shall be given
full effect, without regard to the invalid portions.
(h) The prohibitions of paragraphs (a) and (b) of this Section 7 shall
terminate at such time as any person or group (as such term is defined by
Section 13(d) of the Exchange Act) other than Revision LLC, Xxxx Xxxxxxxx, Gold
& Xxxxx Transfer, S.A. and their respective affiliates acquires voting common
stock of the Company in a purchase or transaction or in a series of purchases or
transactions, if immediately thereafter such person or group has, or would have,
beneficial ownership (as determined pursuant to Rule 13d-3 under the Exchange
Act) of a majority of the voting power of the Company's then outstanding voting
equity securities.
8. INDEMNIFICATION.
(a) Right to Indemnification. If Xxxxxx Xxxxxxx is made a party or is
threatened to be made a party to any action, suit, or proceeding, whether civil,
criminal, administrative, or investigative, by reason of the fact he was a
director or officer of the Company or was serving at the request of the Company
as a director or officer of another corporation or of a partnership, joint
venture, trust, or other enterprise, he shall be indemnified and held harmless
by the Company to the fullest extent permitted by applicable law against all
expenses, liabilities and losses (including attorneys' fees, judgments, fines,
or penalties and amounts paid in settlement) reasonably incurred or suffered by
him in connection therewith, and such indemnification shall continue after the
Effective Date and shall inure to the benefit of Xxxxxx Xxxxxxx'x heirs,
executors, and administrators.
(b) Right to Advancement of Expenses. The right to indemnification
conferred in this Section 8 shall include the right to be paid by the Company
the expenses incurred in defending any action, suit, or proceeding in advance of
its final disposition, subject to the receipt by the Company of an undertaking
by Xxxxxx Xxxxxxx to repay all amounts so advanced if it shall ultimately be
determined that he is not entitled to be indemnified.
(c) Nonexclusivity of Rights. The rights to indemnification and to the
advancement of expenses contained in this Section 8 shall not be exclusive of
any other right which Xxxxxx Xxxxxxx may have or hereafter acquire under any
statute, provision of the Company's articles of incorporation, by-laws,
agreement, vote of stockholders or disinterested directors, or otherwise.
(d) Duration. The indemnification obligations of the Company hereunder
shall apply only to indemnified liabilities arising from claims as to which
notice has been provided to the Company by Xxxxxx Xxxxxxx within sixty (60) days
of receipt of such notice by Xxxxxx Xxxxxxx.
(e) Indemnification Agreement. The parties hereto acknowledge and
agree that (i) the Indemnification Agreement dated March 6, 1998 between Xxxxxx
Xxxxxxx and the Company (the "Indemnification Agreement") is, and at all times
since March 6, 1998 has been, in full force and effect, (ii) that,
notwithstanding the provisions of Section 1 of the
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Indemnification Agreement, Xxxxxx Xxxxxxx shall be entitled to the rights of
indemnification provided therein if at any time after the Effective Date, by
reason of his Corporate Status (as defined therein) he is, or is threatened to
be made, a party to any threatened, pending, or completed Proceeding (as defined
therein), and (iii) the Indemnification Agreement shall continue until the
expiration of the term set forth in Section 10 thereof.
9. OTHER COVENANTS AND UNDERTAKINGS.
(a) Insurance. The Company further covenants and agrees that, for a
period of three (3) years following the Effective Date, it will maintain a
directors and officers liability insurance policy covering Xxxxxx Xxxxxxx for
the period of his service as a director and officer of the Company up to and
including the Effective Date.
(b) Transition Issues. Xxxxxx Xxxxxxx shall return the Company car
currently in his possession on or before the date that is fifteen (15) days
after the Effective Date, and the Company shall maintain the existing automobile
insurance coverage on such car until such date. Xxxxxx Xxxxxxx shall have the
right to purchase (i) the cellular phone he currently uses, (ii) the personal
computer currently in his office, and (iii) the personal computer, printer, fax
machine and cellular phone currently used by his executive assistant, each for a
purchase price equal to the depreciated value of such equipment; provided,
however, that all Company-related information shall be deleted from the two
personal computers before they are sold to Xxxxxx Xxxxxxx.
(c) Press Releases. The Company shall provide a copy of any press
release or other public disclosure concerning the transactions contemplated
hereby to Xxxxxx Xxxxxxx, and any such press release or other public disclosure
shall not be disseminated or released without the prior written approval of
Xxxxxx Xxxxxxx, such approval not to be unreasonably withheld or delayed.
10. GENERAL MATTERS.
(a) Notice. All communications provided for hereunder shall be sent in
writing and mailed by first class mail, return receipt requested, or sent by
overnight courier, or sent by facsimile transmission to the address stated below
or to such changed address as the addressee may have been given by similar
notice:
(i) If to Xxxxxx Xxxxxxx:
000 Xxxx Xxxx Xxxx,
Xxxxxxxxx Xxxx, Xxx Xxxxxx 00000
Attn: Xxxxxx Xxxxxxx
Facsimile No.: (000) 000-0000
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with a copy (which shall not constitute notice) to:
0000 Xxxxxxxx Xxxxxx
Xxx. 00X
Xxxx Xxx, XX 00000
Attn: Xxxxxxx Xxxxxxx
(ii) If to the Company:
Total-Tel USA Communications, Inc.
000 Xxxxx Xxxx
Xxxxxx Xxxxx, Xxx Xxxxxx 00000
Attn: President & Chief Executive Officer
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxxxxx & Xxxxxxx
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxx X. Xxxxxxxxxx, Esq.
Facsimile No.: (000) 0000-0000
Any such notice shall be deemed received, if mailed, five days after mailing,
one day after sending by overnight courier, or upon confirmation of transmission
if sent by facsimile transmission.
(b) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New Jersey, without giving effect to
its principles or rules of conflict of laws to the extent such principles or
rules would require or permit the application of the laws of another
jurisdiction.
(c) Expenses. All costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be borne by the party
incurring such expenses; provided, however, that the Company shall pay the fees
and expenses of Xxxxxxxxx & Xxxxxxx, counsel to the Company, incurred in
connection with the preparation of this Agreement.
(d) No Third-Party Beneficiaries. Except as provided in Sections 2 and
8, nothing in this Agreement shall be construed as giving any person or entity,
other than the parties hereto and their successors and permitted assigns, any
right, remedy, or claim under or in respect of this Agreement or any provision
hereof, except as expressly provided herein.
(e) Successors and Assigns; Severability. This Agreement shall be
binding upon the respective successors, trustees, and permitted assigns of the
parties hereto. This Agreement shall not be assignable or otherwise transferable
by any party without the prior written consent of the other parties and any
attempt to so assign or transfer this Agreement
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without such consent shall be void and of no effect. If any provision of this
Agreement is held to be unenforceable for any reason, it shall be adjusted
rather than voided, if possible, in order to achieve the intent of the parties
to this Agreement to the extent possible.
(f) Counterparts; Amendments; Entire Agreement, Etc. This Agreement
and any amendments hereto may be executed in one or more counterparts, each of
which shall be an original, but all of which together shall constitute one
instrument. This Agreement may be changed, modified, amended, or supplemented
only by written instrument signed by the parties hereto. No provision of this
Agreement may be waived orally, but only by a written instrument signed by the
party against whom enforcement of such waiver is sought. The headings in this
Agreement are inserted for convenience only and shall not constitute a part
hereof. As used herein, except as the context otherwise indicates, the singular
shall include the plural and vice versa and words of any gender shall include
any other gender. The conjunction "or" shall be understood in its inclusive
sense (and/or). This Agreement constitutes the entire agreement and
understanding of the parties with respect to its subject matter and supersedes
all oral communications and prior writings with respect thereto.
(g) Period of Consideration. By his signature below, Xxxxxx Xxxxxxx
acknowledges that the Company complied with the ADEA by giving him a period of
at least twenty-one (21) days from the date that this Agreement was first
provided to him to consider this Agreement and to decide whether to accept it.
Xxxxxx Xxxxxxx further acknowledges that no representative of the Company ever
stated or implied that he had less than twenty-one (21) days to consider this
Agreement. Xxxxxx Xxxxxxx also acknowledges that, to the extent he decided to
sign this Agreement prior to the expiration of the full twenty-one (21) day
period, such decision was knowing and voluntary on his part and was in no way
coerced by the Company. To the extent any changes were made in this Agreement as
a result of negotiations taking place after the date this Agreement was provided
to Xxxxxx Xxxxxxx, he and the Company agree that such changes, whether material
or not, did not restart the running of the period of twenty-one (21) days to
consider this Agreement required by the ADEA.
(h) Right to Revoke Agreement. Except for the obligations of the
Company under Section 4(a), this Agreement will not become effective or
enforceable until October 7, 1999, which is more than seven (7) days from the
date first above written. During the period prior to such date, Xxxxxx Xxxxxxx
has a right to change his decision to accept the severance payment that has been
offered and paid to him and to revoke this Agreement, in which case he shall be
obligated to return such payment.
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IN WITNESS WHEREOF, this Separation Agreement has been executed and
delivered by the parties hereto on the date first above written.
TOTAL-TEL USA COMMUNICATIONS, INC.
for itself and for all its subsidiaries
By: /s/ Xxxxxx Xxxxx
-----------------------------------
Name: Xxxxxx Xxxxx
Title: President & Chief Executive
Officer
/s/ Xxxxxx Xxxxxxx
-----------------------------------
Xxxxxx Xxxxxxx
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