Exhibit 10.34
SEPARATION AGREEMENT
--------------------
It is hereby agreed by and between Xxxxxxx X. Xxxxxx ("Xxxxxx") and Xxxxxx, Inc.
and TeleCorp PCS, Inc. (collectively "Tritel") in this Separation Agreement
("the Agreement"), for good and sufficient consideration, as more fully
described below, that:
1. Employment Status
Xxxxxx'x employment with Tritel shall cease or ceased on December 15, 2000
(the "Termination Date"). Xxxxxx'x salary and benefits likewise will cease or
ceased as of the Termination Date, including any entitlement he had or might
have had under any Tritel provided benefit programs, except as required by
federal or state law.
2. Consideration
x. Xxxxxx will pay Xxxxxx an amount equal to twice his current annual
salary of Two Hundred Twenty Five Thousand Dollars ($225,000), for a total
of Four Hundred Fifty Thousand Dollars ($450,000) in approximately equal
installments over a period of twenty four months following the Termination
Date in accordance with Tritel's normal payroll practices and beginning on
the next regularly scheduled payday which is at least seven days after the
expiration of the recision period set forth below. All amounts set forth in
this Section 2 are subject to applicable federal and local withholding,
payroll and other taxes (if any).
b. On December 29, 2000, Tritel will pay Xxxxxx for all accrued but
unused vacation, if any, as of December 15, 2000, less federal, state and
local withholding, payroll and other taxes.
c. On the Effective Date (as defined in Paragraph 9), Tritel shall pay
Xxxxxx a bonus for fiscal year 2000 in the amount of One Hundred Twelve
Thousand and Five Hundred Dollars ($112,500).
x. Xxxxxx will be permitted to continue his medical and dental insurance
after the Termination Date pursuant to the provisions of the Consolidated
Omnibus Budget Reconciliation Act of 1985 (COBRA). The COBRA qualifying
event shall be deemed to have occurred on the Termination Date, and, should
Xxxxxx properly elect such coverage, Tritel will pay Xxxxxx'x COBRA
premiums with respect to the period of coverage from the Termination Date
for a period of eighteen (18) months or until Xxxxxx becomes eligible for
group medical and dental insurance through another employer, whichever
period is shorter. Xxxxxx will notify Tritel immediately should he become
eligible as aforesaid.
e. Pursuant to the terms of that certain Amended and Restated Employment
Agreement dated as of June 1, 2000, all of the Restricted Shares which
Xxxxxx holds in TeleCorp PCS, Inc. have vested. Xxxxxx shall have ninety
(90) days from
the Termination Date to exercise any of his vested options in TeleCorp PCS,
Inc. stock.
f. Effective on the Effective Date, Xxxxxx'x outstanding loan from
Tritel, in the principal amount of $50,000, plus all accrued interest
thereon, if any, shall be forgiven.
x. Xxxxxx shall be permitted to retain the SunCom mobile telephone
provided to him by Tritel. Tritel for a period of twelve months from the
Effective Date shall provide Xxxxxx with, and shall not charge him for, the
best rate plan offered for such telephone by Tritel in the market in which
his current residence is located, provided, however, that Xxxxxx shall be
responsible for all roaming and other charges beyond those covered by the
basic rate for the aforesaid plan.
3. Proprietary Information
Xxxxxx acknowledges that, in order for him to perform his duties properly
as an employee of Tritel, Tritel entrusted him with certain trade secrets and
confidential business information (the "Confidential Information"). The
Confidential Information includes, but is not limited to, financial information,
business plans, manuals, courtesy parking passes, diskettes, intangible
information stored on diskettes, business or marketing plans, reports,
projections, software programs and data compiled with the use of those programs,
tangible copies of trade secrets and confidential information, and any and all
other information or property previously or currently held or used by Xxxxxx
that is or was related to Xxxxxx'x employment with Tritel.
Xxxxxx hereby acknowledges that the development and acquisition of such
Confidential Information is the result of great effort and expense by Tritel and
that the Confidential Information is critical to the success and survival of
Tritel. Xxxxxx hereby agrees to immediately deliver to Tritel all Confidential
Information in his possession, custody or control, and other property prepared
on behalf of Tritel or purchased with Tritel funds. Xxxxxx agrees that in the
event he discovers any other Tritel materials or Confidential Information in his
possession after the date of the execution of this Agreement he will immediately
return such materials to Tritel.
The obligations set forth in this Section 3 shall be in addition to, and
not in place of, any obligations relating to trade secrets or confidentiality
which Xxxxxx has to Tritel pursuant to any contract or statutory or common law.
4. Property of Xxxxxx
Xxxxxx shall immediately return all property of Tritel of any nature
whatsoever to Tritel.
5. Release
-2-
In exchange for the amounts described in Section 2 and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Xxxxxx and his representatives, agents, estate, successors and
assigns, absolutely and unconditionally hereby release and forever discharge
Tritel (which shall for purposes of this Section 5 be defined to include without
limitation Tritel, its parents and/or any of its subsidiaries, affiliates, their
respective successors, assigns, shareholders/stockholders, officers, directors,
representatives, attorneys, employees and/or agents in both their individual and
official capacities) from any and all actions or causes of action, suits,
claims, complaints, obligations, contracts, liabilities, agreements, promises,
debts and damages, whether existing or contingent, known or unknown, accrued or
unaccrued, of any type whatsoever, and without limiting the generality of the
foregoing, for any claims which arise out of Xxxxxx'x employment with Tritel.
This release is intended by Xxxxxx to be all-encompassing and to act as a full
and total release of all claims known or unknown that Xxxxxx may have or has had
against Tritel, including, but not limited to, (a) claims under any federal or
state law, statute or regulation dealing with either employment discrimination,
including both federal and state laws or regulations concerning discrimination
on the basis of age, race, color, religion, creed, sex, sexual preference,
national origin, handicap status or status as a disabled veteran, (b) any
contract whether oral or written, express or implied; (c) any claims to an
equity interest in Tritel (either directly or through any other person or
entity), and/or (d) at common law; provided, however, that this release shall
not apply to any claims regarding a breach of this Agreement or any claims
arising out of acts or omissions occurring after the Effective Date.
Also without limiting the generality of the foregoing, the amounts set
forth in Section 2 shall be complete and unconditional payment, settlement,
satisfaction and accord with respect to all obligations and liabilities of
Tritel to Xxxxxx, and with respect to all claims, causes of action and damages
that could be asserted by Xxxxxx against Tritel for any reason, including,
without limitation, anything arising out of Xxxxxx'x employment with and
termination of employment with Tritel, including, without limitation, all claims
for wages, back wages, salary, vacation pay, draws, commissions, bonuses,
compensation, professional expenses, severance pay, stock rights or stock
options, any equity interest in Tritel (either directly or through any other
person or entity), attorney's fees, compensatory damages, special damages,
reliance damages, punitive damages, treble damages, consequential damages,
exemplary damages, emotional distress damages, or other costs or sums; provided,
however, that this release shall not apply to any claims regarding a breach of
this Agreement or any claims arising out of acts or omissions occurring after
the Effective Date.
6. Non-Disparagement and Confidentiality
Xxxxxx agrees not to make any negative or adverse remarks whatsoever
concerning Tritel, including, but not limited to, negative remarks concerning
Tritel's operations, marketing strategies, management, affairs, financial
conditions. Xxxxxx shall not divulge or publish, intentionally, any information
whatsoever regarding the fact of, substance, terms or existence of this
Agreement and/or any discussions or negotiations relating to this
-3-
Agreement to any person or organization. Tritel shall direct its directors,
executive officers and vice president of human resources not to make any
negative or adverse remarks whatsoever concerning Xxxxxx or his employment with
Tritel; provided however, the foregoing shall not in any way limit Tritel's
----------------
ability to communicate with third parties, in its ordinary course of business,
whether through its directors, executive officers and vice president of human
resources or otherwise, regarding Tritel, including but not limited to Tritel's
business and financial performance, and its management generally (without
specific reference to Xxxxxx).
Any disclosure of the terms, negotiations, or fact of this Agreement by
Xxxxxx shall be deemed a violation of this Agreement and, in addition to
relieving it of any further obligations under this Agreement and the return from
Xxxxxx of all payment made to or on his behalf hereunder, shall entitle Tritel
to all damages it proves as a result of such breach and reasonable attorney's
fees and costs. This provision is not intended to interfere with nor to prevent
Xxxxxx'x legal obligation to fully and completely respond to a subpoena or
otherwise comply with any legal obligation to divulge information relating to
this Agreement, provided, however, that Xxxxxx shall give Tritel immediate
written notice of any such requirement. This Agreement also shall not prohibit
the disclosure of any amounts paid or to be paid as a result of this Agreement
to Xxxxxx'x accountants, bookkeepers, attorneys, or tax consultants, provided
such parties agree to maintain the confidentiality of the provisions of this
Agreement, nor shall it prohibit Xxxxxx from taking any legal action necessary
to enforce this Agreement or exercise any rights hereunder.
7. Representations, Amendments, and Governing Law
a. Except as expressly set forth herein, this Agreement represents the
complete and sole understanding between the parties and supersedes any and all
other Agreements and understandings whether oral or written, provided, however,
that Xxxxxx'x obligations under Section 6 of that certain Amended and Restated
Employment Agreement by and between Xxxxxx and Tritel, Inc., dated as of June 1,
2000, shall remain in full force and effect.
b. This Agreement may not be modified, altered or rescinded except upon
written consent of Tritel and Xxxxxx. If any provision of this Agreement, or
part thereof, is held invalid, void or voidable as against the public policy or
otherwise, the invalidity shall not affect other provisions, and parts thereof,
of this Agreement as the same are declared to be severable.
c. The validity, interpretation and performance of this Agreement shall
be construed and interpreted according to the laws of the Commonwealth of
Virginia.
d. In entering into this Agreement, Xxxxxx does not rely on any
representation, promise or inducement made by Tritel or its officers, directors,
employees, representatives or attorneys in both their individual and official
capacity with the exception of the consideration described in this document.
8. Time to Accept, Rescission and Other Matters.
-4-
It is Tritel's desire and intent to make certain that Xxxxxx fully
understands the provisions and effects of this letter. To that end, Xxxxxx has
been encouraged and given the opportunity to consult with legal counsel for the
purpose of reviewing the terms of this letter. Consistent with the provisions of
OWBPA, Tritel is providing Xxxxxx with twenty-one (21) days in which to consider
and accept the terms of this Agreement by signing below and returning it to
Xxxxxx Xxxxxxxx, TeleCorp Communications, Inc., Xxxxx 000, 0000 X. Xxxxx Xxxx,
Xxxxxxxxx, XX 00000. Delivery shall be deemed complete as of the date of the
postmark of such mailing or on receipt by personal delivery. In addition, Xxxxxx
may rescind his assent to this Agreement within seven (7) days after he signs
it. To be effective, such notice of rescission must be hand delivered or
postmarked within the seven (7) day period and sent by certified mail, return
receipt requested, to Xxxxxx Xxxxxxxx, TeleCorp Communications, Inc., Xxxxx 000,
0000 X. Xxxxx Xxxx, Xxxxxxxxx, XX 00000.
9. Effective Date
This Agreement shall be effective as the eighth (8th) day following the
date on which it is executed by Xxxxxx (the "Effective Date").
IN WITNESS WHEREOF, the undersigned have executed this Agreement on the dates
shown below.
Date: December 29, 2000 /s/ Xxxxxxx X. Xxxxxx
------------------- -------------------------------
Xxxxxxx X. Xxxxxx
TRITEL, INC.
Date: December 29, 2000 BY: /s/ Xxxxxx X. Xxxxxxxx
------------------- ---------------------------
ITS:___________________________
TELECORP PCS, INC.
BY: /s/ Xxxxxx X. Xxxxxxxx
---------------------------
ITS: __________________________
-5-
