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EXHIBIT 10.212
EMPLOYMENT SEPARATION AGREEMENT
This EMPLOYMENT SEPARATION AGREEMENT made as of this 2nd day of
September, 1999, (this "Agreement") by and between Xxxxxx Communications
Corporation, with its principal place of business at 000 Xxxxxxxxxx Xxxx Xxxx,
Xxxx Xxxx Xxxxx, Xxxxxxx 00000-0000, and its subsidiaries, divisions and
affiliated entities (collectively, "Xxxxxx") and Xxxxx X. Xxxxxx, an
individual, currently residing at the address set forth under such individual's
signature below (collectively including any entity to which he may assign his
rights under this Agreement or his estate, "Xxxxxx" and collectively with
Xxxxxx referred to herein as the "Parties").
WHEREAS, Xxxxxx and Xxxxxx are parties to (i) that certain Employment
Agreement dated as of June 11, 1998 (the "Employment Agreement"); (ii) that
certain Supplemental Executive Retirement Plan (the "SERP Agreement") and Split
Dollar Agreement (together with the SERP Agreement, the "Deferred Compensation
Agreements") each dated as of July 15, 1996; and (iii) that certain Promissory
Note (the "Note") and Pledge Agreement (the "Pledge Agreement" and together
with the Note, the "Loan Documents"), each dated December 16, 1998 and issued
by Employee to Xxxxxx; and
WHEREAS, Xxxxxx and Xxxxxx desire to end Xxxxxx'x employment
relationship with Xxxxxx on or about September 10, 1999, in accordance with the
terms of this Agreement and provide for a settlement and termination of their
respective obligations under the Employment Agreement, the Deferred
Compensation Agreements, and the Loan Documents.
NOW THEREFORE, for value received and in consideration of the mutual
agreements and waivers contained herein, the Parties agree as follows:
1. SEPARATION. Xxxxxx agrees that his employment with Xxxxxx will end on
September 10, 1999 (the "Termination Date"). Xxxxxx agrees that on the
Termination Date he will immediately return to Xxxxxx all property
(including keys, access cards, etc.) and documents (including all
copies of documents) which Xxxxxx obtained from Xxxxxx or from any of
its customers or employees.
2. OBLIGATIONS OF THE PARTIES. In full settlement of Xxxxxx'x obligations
to Xxxxxx under the Employment Agreement and the Deferred Compensation
Agreements and Xxxxxx'x obligations to Xxxxxx under the Loan
Documents, and in consideration of the agreements and waivers under
Sections 3 and 4 hereof, Xxxxxx and Xxxxxx agree as follows:
1. Xxxxxx shall continue to pay Xxxxxx his current base salary
until September 30, 1999 in
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the manner customary to which Xxxxxx has been making payments
to Xxxxxx during the course of his employment.
2. Xxxxxx shall pay Xxxxxx a lump sum payment of those monies
owed Xxxxxx pursuant to the SERP Agreement no later than
October 31, 1999.
3. As soon as permissible pursuant to the Company's policies
regarding xxxxxxx xxxxxxx, Xxxxxx shall satisfy those
obligations to Xxxxxx set forth under the Loan documents by
selling the shares of Xxxxxx stock underlying the Loan;
provided, however, should Xxxxxx determine to satisfy the
loan without disposing of the underlying collateral the
obligations to Xxxxxx under the Loan documents must be
satisfied no later than September 30, 1999. In connection
therewith, Xxxxxx shall return the Note to Xxxxxx marked
"canceled/paid in full."
4. Xxxxxx hereby agrees that, effective on the Termination Date,
Xxxxxx shall, automatically and without any further action
required by Xxxxxx or Xxxxxx, be vested in those 90,000
unvested stock options (prior to the date hereof) which were
issued to Xxxxxx under the Xxxxxx Communications Corporation
1996 Plan, which options have an exercise price of
$3.42/share.
5. Xxxxxx hereby agrees that, effective upon the expiration of
the Age Discrimination Waiver Effective Date, Xxxxxx shall,
automatically and without any further action required by
Xxxxxx or Xxxxxx, be vested in 30,000 of the remaining
180,000 unvested stock options issued to Xxxxxx under the
Xxxxxx Communications Corporation 1998 Plan, which options
have an exercise price of $7.25/share. The remaining 150,000
unvested options, after giving effect to the foregoing
sentence, shall lapse and no longer be eligible for vesting
to Xxxxxx.
6. Xxxxxx hereby agrees that notwithstanding anything to the
contrary contained in any of the plans governing, or
agreements evidencing, the options granted to Xxxxxx by the
Company, each of the vested options held by Xxxxxx, including
those vested after giving effect to paragraphs 2d and 2e
hereof, may be exercised by Xxxxxx on or before December 31,
2001.
7. Each of the parties agree that, the Employment Agreement,
Deferred Compensation Agreements and Loan Documents shall be
terminated and of no further force and effect on and after
the Termination Date, except that, notwithstanding the
foregoing, Xxxxxx'x right to indemnification as an officer
and/or director of the Company, under the terms of any
agreement between Xxxxxx and Xxxxxx, the organizational
documents of Xxxxxx or applicable law, shall continue and
survive hereunder to the same extent as if Xxxxxx remained an
officer or director of the Company.
8. Xxxxxx hereby agrees to the assignment of all of his right,
title and interest in the Policy
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under the Split Dollar Agreement to Xxxxxx as of the
Termination Date.
9. Xxxxxx hereby agrees to execute and distribute the
Resignation Letter attached hereto as Exhibit A.
3. WAIVER AND RELEASE BY XXXXXX. Xxxxxx agrees that, in exchange for
Xxxxxx'x performance of its obligations under the Agreement, Xxxxxx
hereby completely releases and discharges Xxxxxx from any and all
claims, charges, actions and causes of action of any kind or nature
that Xxxxxx once had or now has whether arising out of the employment
or separation of employment with Xxxxxx, and whether such claims are
now known or unknown to Xxxxxx. Xxxxxx further agrees that it will not
bring any such charges, claims or actions against Xxxxxx in the future
arising from events occurring prior to the date hereof.
4. WAIVER AND RELEASE BY XXXXXX. Xxxxxx agrees that, in exchange for
Xxxxxx'x performance of its obligations under the Agreement:
1. Xxxxxx'x release/waiver of claims. Xxxxxx (on his own behalf
and on behalf of his heirs or personal representatives or any
other person who may be entitled to make a claim on Xxxxxx'x
behalf or through him) hereby completely releases and
discharges Xxxxxx from any and all claims, charges, actions
and causes of action of any kind or nature that Xxxxxx once
had or now has whether arising out of his employment or
separation of employment with Xxxxxx, and whether such claims
are now known or unknown to Xxxxxx; provided, however,
nothing herein shall limit Xxxxxx'x right to indemnification
as an officer and/or director of the Company.
2. Xxxxxx'x release of all claims. Xxxxxx and Xxxxxx realize
that there are many laws and regulations relating to
employment relationships, including Title VII of the Civil
Rights Act of 1964, as amended; the Age Discrimination in
Employment Act of 1967, as amended; the Americans with
Disabilities Act of 1990; the National Labor Relations Act,
as amended; the Civil Rights Act of 1866, as amended; the
Employee Retirement and Income Security Act; and various
state constitution provisions and human rights laws as well
as the laws of contract and tort. XXXXXX INTENDS BY SIGNING
THIS AGREEMENT TO RELEASE ANY AND ALL OTHER RIGHTS AND CLAIMS
THAT HE MAY HAVE AGAINST XXXXXX UNDER ALL SUCH LAWS OR
REGULATIONS.
3. Waiver of Age Discrimination Claims. Notwithstanding anything
to the contrary contained herein, Xxxxxx'x waiver and release
under the Age Discrimination in Employment Act of 1967, shall
only be effected as follows:
(1) Xxxxxx shall deliver to Xxxxxx a fully executed
waiver letter substantially in the form of Exhibit B
annexed hereto (the "Age Discrimination Waiver
Letter") no
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sooner than 21 days after the date hereof and no
later than 25 days after the date hereof.
(2) The Age Discrimination Waiver Letter shall be
revocable by Xxxxxx for seven days (the "Revocation
Period") following his delivery thereof to Xxxxxx in
accordance with Section 4c(i) hereof and such
revocation shall be made by Xxxxxx by sending a
written letter of revocation by certified mail,
return receipt requested, to Xxxxxxx X. Xxxxxxxx,
General Counsel, c/o Paxson Communications
Corporation, 000 Xxxxxxxxxx Xxxx Xxxx, Xxxx Xxxx
Xxxxx, Xxxxxxx 00000.
(3) If Xxxxxx does not revoke the Age Discrimination
Waiver Letter in accordance with the terms of
Section 4c(ii) hereof on or before the expiration of
the Revocation Period, then the Age Discrimination
Waiver Letter shall, automatically and without any
further act by Xxxxxx, become final and binding upon
Xxxxxx and Xxxxxx on the first day succeeding the
expiration of the Revocation Period (such date
referred to herein as the "Age Discrimination Waiver
Effective Date"). In delivering the Age
Discrimination Waiver Letter, it is the express
intent of Xxxxxx to waive his rights under, and in
accordance with the requirements of, the Age
Discrimination in Employment Act of 1967 and that in
the event of any failure or ineffectiveness of such
waiver, Xxxxxx shall not have received the benefits
intended to be conferred upon it by Xxxxxx in
exchange for the benefits conferred by Xxxxxx to
Xxxxxx under Section 2 hereof. Accordingly, Xxxxxx
agrees that in the event the Age Discrimination
Waiver Letter is deemed ineffective or unenforceable
arising out of any action or inaction by Xxxxxx,
then the Age Discrimination Waiver Effective Date
shall be deemed not to have occurred and the
benefits conferred upon Xxxxxx under Section 2
hereof shall be forfeited and, in addition to any
other remedies Xxxxxx may have at law or in equity
with respect thereto, Xxxxxx may, in order to effect
such forfeiture, reduce the number of vested but
unexercised options held by Xxxxxx at the time of
any such forfeiture.
5. INFORMED, VOLUNTARY SIGNATURE.
1. Xxxxxx agrees that he has had a full and fair opportunity to
review this Agreement and signs it knowingly, voluntarily,
and without duress or coercion. Further, in executing this
agreement, Xxxxxx agrees that he has not relied on any
representation or statement not set forth in this document.
2. Xxxxxx agrees that he was given a copy of the Agreement and,
before signing it, he had an opportunity to consult an
attorney of his own choosing, in fact, he did consult with
his own attorney before signing it.
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3. This Agreement shall become effective and the agreements of
the Parties hereto enforceable in accordance with the terms
hereof until each Party has signed and delivered to the other
Party a fully executed copy of this Agreement.
6. NO ADMISSION. The parties agree that this Agreement does not
constitute any admission by Xxxxxx or by Xxxxxx of any (i) violation
of any statute, law, regulation, order or other applicable authority,
or (ii) breach of contract, actual or implied.
7. CONFIDENTIALITY. The Parties agree that they will not at any time or
in any manner talk about, write about, disclose or otherwise publicize
(except as required by applicable law): (a) the terms or existence of
this Agreement or its negotiation, execution or implementation; or (b)
Xxxxxx'x proprietary and trade secret information.
8. MISCELLANEOUS.
1. This agreement shall be interpreted and enforced in
accordance with the laws of the United States of America and
the State of Florida.
2. This Agreement and its attachments represent the sole and
entire agreement between the Parties and supersedes any and
all prior agreements, negotiations and discussions between
the parties and/or their respective counsel with respect to
the subject matters covered in this Agreement.
3. Each party will bear its own attorneys' fees and costs
incurred in connection with Xxxxxx'x separation from Xxxxxx.
4. In the event any of the Xxxxxx contact persons identified in
this Agreement are not available contact shall be made
directly to Xxxxxx X. Xxxxxx. Xxxxxx acknowledges and agrees
that contacts with Xxxxxx representatives other than as
provided for herein shall be ineffective and shall not be
deemed, constructive or actual notice of any kind.
5. If one or more paragraph(s) of this Agreement are ruled
invalid or unenforceable, such invalidity or unenforceability
shall not affect any other provision of the Agreement, which
shall remain in full force and effect.
6. As used in this agreement, the term "Xxxxxx" shall mean
Xxxxxx Communications Corporation as well as its
subsidiaries, divisions, and affiliated organizations as well
as their respective successors and assigns together with
their directors, officers, employees, agents, attorneys,
representatives, shareholders and their respective heirs and
personal representatives.
7. This agreement may not be modified orally but only by a
writing signed by both parties to
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this Agreement.
IN WITNESS WHEREOF, this Agreement has been executed and delivered by
the parties as of the first date written above.
XXXXXX COMMUNICATIONS CORPORATION
By:
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Name:
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Title:
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