AGREEMENT AND GENERAL RELEASE
This Agreement and General Release (the "Agreement") is made and entered
into in Hauppauge, New York, as of June 10, 2004 among Audiovox Communications
Corp. (the "Company"), Audiovox Corporation ("Audiovox"), and Xxxxxx Xxxxxxxxxxx
("Executive"), who is domiciled at 000 Xxxxxxx Xxxx Xxxxx, Xxxxxxx, Xxx Xxxx
00000.
WHEREAS, the Company has entered into an agreement to sell substantially
all of its assets and transfer certain of its liabilities to UTStarcom, Inc.
(the "APA"); and
WHEREAS, upon the consummation of the transactions contemplated by the APA,
Executive, the Company and Audiovox desire to terminate the Employment Agreement
effective as of May 29, 2002 by and among the Company, Executive and Audiovox
(the "Employment Agreement"); and
WHEREAS, upon consummation of the transactions contemplated by the APA,
Executive and the Company desire to terminate the Award Agreement dated June 1,
2002 evidencing the grant of an award pursuant to the Company's Long-Term
Incentive Compensation Plan (the "Plan") entered into between the Company and
Executive (the "Award Agreement"); and
WHEREAS, Executive and the Company desire to settle fully and finally any
and all differences between them, including, but not limited to, any differences
that may arise out of Executive's employment with the Company and the
termination thereof;
NOW, THEREFORE, IT IS HEREBY AGREED THAT:
1. The Employment Agreement will terminate, effective upon the consummation
of the transactions contemplated by the APA (the "Termination Date").
2. The Award Agreement will terminate on the Termination Date.
3. (a) Executive shall be paid Executive's regular salary for services
performed during the period through the Termination Date, in accordance with
prevailing company payroll practices.
(b) Effective on the later of (i) eight (8) days after the Company has
received a fully executed original copy of this Agreement, or (ii) the
Termination Date, the Company, in full and final settlement of any and all
claims as set forth in this Agreement, and as consideration for this Agreement,
shall pay the Executive $4,000,000.00.
4. Executive represents, warrants, and acknowledges that the Company and
Audiovox owe Executive no wages, commissions, bonuses, vacation pay, or other
compensation or payments of any kind or nature, in connection with Executive's
employment by the Corporation, other than as provided in this Agreement.
Exhibit 99.4
1
5. Executive, in consideration of this Agreement, in consideration of the
monies paid to Executive pursuant to this Agreement, and for other good and
valuable consideration received from the Company, receipt whereof is hereby
acknowledged, releases and forever discharges Audiovox, the Company and the
Company's current, former, and future controlling shareholders, subsidiaries,
affiliates, related companies, predecessor companies, divisions, directors,
trustees, officers, employees, agents, attorneys, successors, and assigns (and
the current, former and future controlling shareholders, directors, trustees,
officers, employees, agents, and attorneys of such subsidiaries, affiliates,
related companies, predecessor companies, and divisions), and all persons acting
by, through under, or in concert with any of them (the Company and the foregoing
other persons and entities are hereinafter defined separately and collectively
as the "Releasees"), from all actions, causes of action, suits, debts, dues,
sums of money, accounts, reckonings, bonds, bills, specialties, covenants,
contracts, controversies, agreements, promises, variances, trespasses, damages,
judgments, extents, executions, claims, and demands whatsoever up to the date of
Executive's execution of this Agreement, whether known or unknown in. law,
admiralty, or equity, whether statutory or common law, whether federal, state,
local, or otherwise, arising out of Executive's employment with the Company, the
Employment Agreement, the Plan and Award Agreement, any agreement concerning
such employment, or the termination of such employment, including, but not
limited to:
(a) any and all claims of wrongful discharge or breach of contract, any and
all claims for equitable estoppel, any and all claims for employee benefits,
including, but not limited to, any and all claims under the Employee Retirement
Income Security Act of 1974, as amended, and any and all claims of employment
discrimination on any basis, including, but not limited to, any and all claims
under Title VII of the Civil Rights Act of 1964, as amended, under the Age
Discrimination in Employment Act of 1967, as amended, under the Civil Rights Act
of 1866, 42 U.S.C. ss. 1981, under the Civil Rights Act of 1991, as amended,
under the Americans With Disabilities Act of 1990, as amended, under the
Immigration Reform and Control Act of 1986, and under any applicable New York
state or local fair employment practices statute;
(b) any and all claims under any other federal, state, or local labor law,
civil rights law, fair employment practices law, or human rights law;
(c) any and all claims of slander, libel, defamation, invasion of privacy,
intentional or negligent infliction of emotional distress, intentional or
negligent misrepresentation, fraud, and prima facie tort; and
(d) any and all claims for monetary recovery, including, but not limited
to, back pay, front pay, liquidated, compensatory, and punitive damages, and
attorneys' fees, experts' fees, disbursements, and costs, which against the
Releasees, Executive, Executive's heirs, executors, administrators, successors,
and assigns ever had, now have, or hereafter can, shall, or may have, for, upon,
or by reason of any matter, cause, or thing whatsoever from the beginning of the
world to the date of Executives execution of this Agreement.
Exhibit 99.4
2
6. Except as otherwise provided in Paragraphs 18 and 19 of this Agreement,
Executive represents and warrants that Executive has never commenced or filed,
and Executive covenants and agrees never to commence, file, aid, or in any way
prosecute or cause to be commenced or prosecuted against the Releasees any
action, charge, complaint, or other proceeding, whether administrative,
judicial, legislative, or otherwise, relating to Executive's employment with the
Company, including, but not limited to, any action or proceeding for attorneys'
fees, experts' fees disbursements, or costs based upon or seeking relief on
account of actions or failures to act by the Releasees which may have occurred
or failed to occur before Executive's execution of this Agreement.
7. Except as otherwise provided in Paragraph 18 of this Agreement,
Executive represents and warrants that no person other than Executive is
entitled to assert any claim based on or arising out of any alleged
discriminatory, unlawful, wrongful, tortious, or other conduct against Executive
by the Releasees including, but not limited to, arty and all claims for
attorneys' fees or damages resulting as a consequence thereof, based upon or
seeking relief on account of actions or failures to act by the Releasees which
may have occurred or failed to occur before Executive's execution of this
Agreement. Except as otherwise provided in Paragraph 18 of this Agreement,
Executive further represents and warrants that Executive has not assigned and
shall never assign any such claim, and that in the event any such claim is filed
or prosecuted by any other person or entity, Executive will cooperate fully with
the Releasees and will move immediately to withdraw Executive's name and to
disassociate Executive completely from any such claim, will request such person
or entity to withdraw such claim with prejudice, and will not voluntarily
cooperate with or testify on behalf of the person or entity prosecuting such
claim.
8. Executive shall keep confidential, and shall not hereafter disclose to
any person, firm, corporation, governmental agency, or other entity other than
UTStarcom, Inc. and its designees, any trade secret, proprietary information, or
confidential information of the Company, including, but not limited to,
information relating to trade secrets, processes, methods, pricing strategies,
customer lists, marketing plans, product introductions, advertising or
promotional programs, sales, and other confidential business matters.
9. Unless otherwise required by law, Executive shall not disclose facts
relating to or disparage the Company or any parent, subsidiary or affiliate
thereof, or the business, operations, personnel, policies or procedures of any
of them. Unless otherwise required by law, neither the Company or Audiovox or
any person acting on their behalf shall disclose facts relating to or disparage
the business or personal reputation of Executive.
10. Executive shall keep the terms, amount, and fact of this Agreement
confidential, and shall not hereafter disclose any information concerning this
Agreement to any person, firm., corporation, governmental agency, or other
entity without the prior written consent of the Company, except that Executive
may disclose this Agreement to his tax and legal advisers and as may become
necessary to file income tax returns, keep related financial records, or comply
with any court order, subpoena, or other direction by a court, administrative
agency, or legislative body,
Exhibit 99.4
3
11. Should any provision of this Agreement be declared or determined by a
court to be illegal or invalid, the validity of the remaining parts, terms, or
provisions shall not be affected thereby and said illegal or invalid part, term,
or provision shall be deemed not to be a part of this Agreement.
12. Executive agrees to indemnify and hold harmless each and all of the
Releasees from and against any and all loss, cost, damage, or expense,
including, but not limited to, attorneys' fees, incurred by the Releasees, or
any of them, arising out of any breach by Executive of this Agreement, or the
fact that any representation made by Executive in this Agreement was false when
made.
13. This Agreement shall be deemed to have been made at and shall be
interpreted, construed, and enforced pursuant to the laws of the State of New
York.
14. As used in this Agreement, the singular or plural number shall be
deemed to include the other whenever the context so indicates or requires.
15. This Agreement sets forth the entire agreement between the parties
hereto with respect to Executive's employment with the Company and the
termination thereof, fully supersedes any and all prior agreements or
understandings between the parties hereto pertaining to the subject matter
hereof, and may not be modified orally.
16. This Agreement shall not in any way be construed as an admission by the
Company of any liability, or of any wrongful or unlawful acts whatsoever against
Executive or any other person, and the Company specifically disclaims any
liability to or wrongful or unlawful acts against Executive or any other person,
on the part of the Company, or any of the other Releasees.
17. Executive expressly acknowledges, represents, and warrants that the
terms and pro- visions of this Agreement herein stated are the only
consideration for signing this Agreement; that no other promise or agreement of
any kind has been made to or with any person or entity whatsoever to cause the
signing of this Agreement; and that, in executing this Agreement, Executive does
not rely and has not relied upon any representation or statement made by any of
the Releasees or by any of the Releasees' agents, representatives, or attorneys
with regard to the subject matter, basis, or effect of this Agreement or
otherwise.
18. Notwithstanding any other provision of this Agreement to the contrary:
(a) Executive, in consideration of the monies paid by the Company, as
described in Paragraph 3 of this Agreement (which payments Executive agrees
contain consideration in addition to anything of value to which Executive
is already entitled), agrees that this Agreement constitutes a knowing and
voluntary waiver of all rights or claims Executive may have against the
Releasees, or any of them, including, but not limited to, all rights or
claims arising under the Age Discrimination in Employment Act of 1967, as
amended ("ADEA"), including, but not limited to, all claims of age
discrimination in employment and all claims of retaliation in violation of
the ADEA.
Exhibit 99.4
4
(b) The Company and Executive agree that, by entering into this
Agreement, Executive does not waive rights or claims that may arise after
the date this Agreement is executed.
(c) The Company and Executive agree that this Agreement shall not
affect the rights and responsibilities of the U.S. Equal Employment
Opportunity Commission (the "EEOC") to enforce the ADEA and other laws, and
further agree that this Agreement shall not be used to justify interfering
with Executive's protected right to file a charge or participate in an
investigation or proceeding conducted by the EEOC. The Company and
Executive further agree that Executive knowingly and voluntarily waives all
rights or claims (that arose prior to Executive`s execution of this
Agreement) Executive may have against the Releasees, or any of them, to
receive any benefit or remedial relief (including, but not limited to,
reinstatement, back pay, front pay, damages, attorneys' fees, and experts'
fees) as a consequence of any charge filed with the EEOC, and of any
litigation concerning any facts alleged in any such charge.
(d) The Company and Executive agree that, for a period of seven (7)
days following the execution of this Agreement, Executive has the right to
revoke this Agreement by written notice of revocation delivered to Xxxxxxx
X. Xxxxxx of the Company, in Hauppauge, New York. The Company and Executive
further agree that this Agreement shall not become effective or enforceable
until the eighth (8th) day after the execution of this Agreement; and that
in the event Executive revokes this Agreement prior to the eighth (8th) day
after execution of this Agreement, this Agreement and the promises
contained in this Agreement shall automatically be deemed null and void.
(e) The Company hereby advises and urges Executive in writing to
consult with an attorney prior to executing this Agreement. Executive
represents and warrants that the Company has advised and urged Executive in
writing, as specifically stated in this written Agreement, to consult with
an attorney prior to executing this Agreement. Executive further represents
and warrants that the Company gave Executive a period of at least
twenty-one (21) days to consider this Agreement before executing this
Agreement.
(f) Executive's acceptance of any of the monies paid or benefits
provided by the Company, as described in Paragraph 3 of this Agreement, at
any time more than seven (7) days after the execution of this Agreement
shall constitute an admission by Executive that Executive did not revoke
this Agreement during the revocation period of seven (7) days; and shall
further constitute an admission by Executive that this Agreement has become
effective and enforceable.
(g) If Executive executed this Agreement at any time prior to the end
of the greater than twenty-one (21) day period that the Company gave
Executive in which to consider this Agreement, such early execution was a
knowing and voluntary waiver of Executive's right to consider this
Agreement for at least twenty-one (21) days, and was due to Executive's
belief that Executive had ample time in which to consider and understand
this Agreement, and in which to review this Agreement with an attorney.
Exhibit 99.4
5
19. (a) Audiovox and the Company acknowledge and agree that notwithstanding
the termination of Executive's employment with the Company, Executive (subject
to shareholder approval before the Termination Date) will continue to serve as a
member of the Board of Directors of Audiovox for the year 2004-2005 and
thereafter as long as he continues to be elected by the shareholders. While he
remains as a director, he is entitled to the following options which have
already been granted to him:
OPTION NUMBER PRICE EXPIRATION DATE
30,000 5.88 August 9, 2005
326,000 7.6875 July 21, 2007
75,000 11.000 November 22, 2004
580,000 15.000 September 9, 2009
(b) Nothing in this Agreement is intended to release the Releasees
from any rights Executive may have, or compensation or other benefitis to
which he may be entitled, now or in the future, in his capacity as a
Director of Audiovox or any of its subsidiaries, or in his capacity as a
shareholder and optionholder of Audiovox.
(c) Nothing in this Agreement is intended to release the Releasees
from any rights to indemnification to which Executive may be entitled as a
director and/or officer of Audiovox and the Company under such
corporations' certificates of incorporation, by-laws, any indemnification
agreement, any policy of directors and officers insurance maintained by
Audiovox and the Company, or otherwise at law.
(d) Nothing in this Agreement is intended to release the Releasees
from any rights that Executive may have on the Termination Date for
unreimbursed business and travel expenses consistent with past practice,
unreimbursed medical and health care expenses covered under health
insurance plans, the vested benefits under retirement plans maintained for
the benefit of employees of the Company, claims under workers' compensation
laws or any claims that he may have against the Releasees that are
unrelated to his employment with the Company.
20. This Agreement shall be null and void if the APA is terminated by the
parties thereto.
21. In consideration of this Agreement, the Company, its officers and
directors, release and forever discharge Executive from any and all damages,
claims and demands that could be asserted against him arising out of his
employment with the Company.
22. EXECUTIVE EXPRESSLY ACKNOWLEDGES, REPRESENTS, AND WARRANTS THAT
EXECUTIVE HAS CAREFULLY READ THIS AGREEMENT AND GENERAL RELEASE; THAT EXECUTIVE
FULLY UNDERSTANDS THUS AGREEMENT AND GENERAL RELEASE'S TERMS, CONDITIONS, AND
SIGNIFICANCE; THAT EXECUTIVE HAS HAD AMPLE TIME TO CONSIDER THIS AGREEMENT AND
Exhibit 99.4
6
GENERAL RELEASE; THAT THE COMPANY HAS ADVISED AND URGED EXECUTIVE TO CONSULT
WITH AN ATTORNEY CONCERNING THIS AGREEMENT AND GENERAL RELEASE; THAT EXECUTIVE
HAS HAD A FULL OPPORTUNITY TO REVIEW THIS AGREEMENT AND GENERAL RELEASE WITH AN
ATTORNEY, AND HAS DONE SO OR HAS DECLINED TO DO SO; AND THAT EXECUTIVE HAS
EXECUTED THIS AGREEMENT AND GENERAL RELEASE VOLUNTARILY, KNOWINGLY, AND WITH
SUCH ADVICE FROM AN ATTORNEY AS EXECUTIVE DEEMED APPROPRIATE.
PLEASE READ CAREFULLY. THIS AGREEMENT AND GENERAL RELEASE HAS IMPORTANT LEGAL
CONSEQUENCES.
Audiovox Communications Corp. Executive
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxx Xxxxxxxxxxx
Xxxxxxx X. Xxxxxx, Xxxxxx Xxxxxxxxxxx
Vice President
Audiovox Corporation
By: /s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx,
President and CEO
STATE OF NEW YORK)
ss.. COUNTY OF NASSAU)
On June 10, 2004 before me personally came Xxxxxx Xxxxxxxxxxx to me known and
known to me to be the individual described in and who executed the foregoing
Exhibit 99.4
7
Agreement and General Release, and he duly acknowledged to me that he
voluntarily and knowingly executed the said Agreement, after having read and
understood said Agreement.
/s/ Xxxxxx X. Xxxx
Xxxxxx X. Xxxx
Notary Public
Exhibit 99.4
8
