Exhibit 10.40
MUTUAL RELEASE AND TERMINATION AGREEMENT
This Mutual Release and Termination Agreement (this "AGREEMENT") is
executed on and shall be effective as of this the __ day of November, 1999, by
and among Xxxxx X. Xxxxxxxx, Xx., an individual who currently resides at 000
Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000 ("XXXXXXXX"), and Tritel, Inc., a
Delaware corporation ("TRITEL"), and the other undersigned parties (the other
undersigned parties are collectively referred to as the "PARTIES" and any one
individually a "PARTY").
WHEREAS, Tritel and Xxxxxxxx have previously entered into an Employment
Agreement dated January 7, 1999 ("PRIOR AGREEMENT"), and the following other
agreements: that certain Securities Purchase Agreement by and among AT&T
Wireless PCS Inc., TWR Cellular, Inc., Cash Equity Investors, Mercury PCS, LLC,
Mercury PCS II, LLC, and Management Shareholders and Tritel dated as of May 20,
1998, and that certain Management Agreement by and between Tritel Management,
LLC and Tritel dated as of January 7, 1999 (collectively, the "OTHER AGREEMENTS"
which specifically excludes the Prior Agreement); and
WHEREAS, management differences have arisen between Tritel and Xxxxxxxx;
and
WHEREAS, Tritel and Xxxxxxxx have agreed to and entered into an Amended and
Restated Employment Agreement and a Stock Purchase Agreement regarding certain
interests of Xxxxxxxx in Tritel, and Xxxxxxxx, Xxxxxx and other persons and
entities have agreed to and entered into a Membership Purchase Agreement
regarding any interest of Xxxxxxxx in Tritel Management, LLC, a Mississippi
limited liability company ("TRITEL MANAGEMENT"), and other related documents
executed pursuant thereto, all executed on the date herewith (collectively the
"TRANSACTION DOCUMENTS", all of which are listed below); and
WHEREAS, as a material condition precedent to consummation of the
transactions contemplated by the Transaction Documents as set forth therein,
each of the parties desire to release the other party or parties from certain
potential claims and obligations pursuant to the terms and provisions of this
Agreement; and
WHEREAS, Tritel and Xxxxxxxx desire to terminate their existing
relationships with respect to the Other Agreements.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties agree as follows:
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1. Release by Tritel.
1.1 Release. Subject to the provisions of Section 4 below, each of the
Parties and Tritel for itself and for and on behalf of each, any and all of
Tritel's agents, servants, employees, directors and officers (collectively,
"TRITEL AGENTS"), and any and all predecessors and subsidiaries who are or
may in any manner whatsoever have claims (said parties hereinafter
collectively referred to as the "TRITEL RELEASORS"), jointly and severally,
have released and discharged, and by these presents do hereby, jointly and
severally, release and discharge Xxxxxxxx, of and from any and all claims,
demands, actions, causes of action, suits and damages of every kind and
nature whatsoever, which the Tritel Releasors or any of them may have or
claim to have, in law or equity, for damages, costs, losses and expenses of
every kind or nature whatsoever, whether known or unknown, anticipated or
unanticipated and whether accrued or hereafter to accrue, caused by,
resulting from, growing out of or in any manner connected with any acts or
omissions, facts, events, circumstances, situations or incidents arising,
occurring or existing on or before the date of this Agreement whether or
not such claims have been expressly asserted, verbally or in writing, to or
against Xxxxxxxx, arising from or relating in any manner to: (i) the
organization and operation of Tritel, Tritel Management, MSM and any of
their predecessors and subsidiaries, (ii) Xxxxxxxx'x employment or
affiliation with, or serving as a director or in any other capacities for
or on behalf of Tritel, Tritel Management, MSM or any of their predecessors
and subsidiaries, or any change in such status whether by termination,
demotion or reduction of duties, (iii) except for payments expressly set
forth in the Transaction Documents, any claims for compensation of any type
whether earned, unearned, past, present or future from Tritel, Tritel
Management, MSM or their predecessors and subsidiaries, including, without
limitation, salaries, bonuses, expense reimbursements, director fees,
manager fees, stock options or any other economic incentives, (iv) any
personal guaranties or other obligations or indebtedness of Xxxxxxxx to
Tritel, Tritel Management, MSM or their predecessors and subsidiaries, (v)
any other matter, event or occurrence relating in any manner to or growing
out of any relationship between Xxxxxxxx and any of Tritel, Tritel
Management, MSM or their predecessors and subsidiaries, or (vi) any and all
personal torts of any type relating to or growing out of any of the matters
described in Section 1.1(i) through (v) above, including, without
limitation, libel, slander, defamation,
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emotional or mental distress, breach of fiduciary duties or otherwise.
For purposes of this Agreement, the term "AFFILIATE" means (i) Tritel
Management, LLC; Airwave Communications, LLC (f/k/a Mercury PCS, LLC)
("AIRWAVE"); Digital PCS, LLC (f/k/a Mercury PCS II, LLC)("DIGITAL");
Mercury Southern, LLC; MSM, Inc.(f/k/a Mercury Communications
Company)("MSM"); AT&T Corporation ("AT&T"); AT&T Wireless PCS Inc. and TWR
Cellular, Inc., (ii) any person directly or indirectly controlling,
controlled by or under common control with Tritel, any of its wholly owned
subsidiaries and any of Tritel Management, LLC; Airwave; Digital; Mercury
Southern, LLC; MSM; AT&T; AT&T Wireless PCS Inc. and TWR Cellular, Inc.,
(iii) any officer, director, trustee or general partner of such person, or
(iv) any person who is an officer, director, general partner, trustee, or
holder of ten percent (10%) or more of the voting interests of any person
described in clauses (i) through (iii) of this sentence. For purposes of
this definition, the term "controls," "is controlled by," or "is under
common control with" shall mean the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies
of a person or entity, whether through the ownership of voting securities,
by contract or otherwise. It is expressly understood and agreed that, for
purposes of this Agreement neither Mercury International Ventures, Inc. nor
Mercury Wireless Management, Inc. shall be deemed to be an Affiliate or a
predecessor of Tritel. For the purposes of this Agreement, the term
"SUBSIDIARY" shall mean and include only a business entity in which more
than 50% of the voting securities or voting interests were owned by Tritel
on September 1, 1999. For the purposes of this Agreement, the term
"PREDECESSOR" shall mean and include only (i) Airwave, (ii) Digital, (iii)
a business entity which has been acquired by Tritel prior to September 1,
1999, or (iv) a business entity which had substantially all of its assets
acquired by Tritel prior to September 1, 1999.
1.2 Covenant Not to Xxx. For the same consideration recited above, and
as an inducement to Xxxxxxxx to execute this Agreement, the Tritel
Releasors do hereby, jointly and severally, covenant and agree, that they
will never make any demand or claim which any of them may have or claim to
have, commence to prosecute, or cause or permit to be commenced or
prosecuted, any action at law or in equity, or any other proceeding of any
kind against Xxxxxxxx, arising or
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resulting from, growing out of, or in any manner connected with any acts or
omissions, facts, events, circumstances, situations or incidents being
released pursuant to the terms of this Agreement.
1.3 Indemnification. Each Party severally agrees to indemnify and hold
Xxxxxxxx harmless from any and all costs and expenses, including reasonable
attorneys' fees, incurred by Xxxxxxxx if said Party makes any claims or
brings forth any suits relating to the matters released hereby. Tritel for
itself and on behalf of the Tritel Agents agrees to indemnify and hold
Xxxxxxxx harmless from any and all costs and expenses, including reasonable
attorneys' fees, incurred by Xxxxxxxx if Tritel or any of the Tritel Agents
makes any claims or brings forth any suits relating to the matters released
hereby. This indemnification obligation shall in no event be construed as a
joint obligation of any Party and/or Tritel or as a commitment to indemnify
for the acts of any other person or party. This indemnification obligation
is intended as a several obligation of each Party and Tritel relating only
to any claims or actions brought by the individual Party or Tritel or the
Tritel Agents and not otherwise.
1.4 Acknowledgment. Each Party and Tritel for itself and on behalf of
the Tritel Agents hereby severally acknowledge and agree that the releases
contemplated by this Agreement are in full and complete compromise,
settlement, accord and satisfaction for all such claims hereby released.
2. Release by Xxxxxxxx.
2.1 Release. Subject to the provisions of Section 4 below, Xxxxxxxx has
released and discharged, and by these presents does hereby release and
discharge Tritel and Tritel's predecessors, subsidiaries, Affiliates,
agents, attorneys, representatives, servants, employees, directors,
shareholders, members, managers and officers (collectively, the "TRITEL
RELEASEES"), jointly and severally, of and from any and all claims,
demands, actions, causes of action, suits and damages of every kind and
nature whatsoever, which Xxxxxxxx may have or claim to have, in law or
equity, for damages, costs, losses and expenses of every kind or nature
whatsoever, whether known or unknown, anticipated or unanticipated and
whether accrued or hereafter to accrue, caused by, resulting from, growing
out of or in any manner connected with any acts or omissions, facts,
events, circumstances, situations or incidents arising,
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occurring or existing on or before the date of this Agreement, whether or
not such claims have been expressly asserted, verbally or in writing, to or
against the Tritel Releasees or any of them, arising from or relating in
any manner to (i) the organization and operation of Tritel, Tritel
Management, MSM and any of their predecessors and subsidiaries, (ii)
Xxxxxxxx'x employment or affiliation with, or serving as a director or in
any other capacities for or on behalf of Tritel, Tritel Management, MSM or
any of their predecessors and subsidiaries, or any change in such status
whether by termination, demotion or reduction of duties, (iii) except for
payments expressly set forth in the Transaction Documents, any claims for
compensation of any type whether earned, unearned, past, present or future
from Tritel, Tritel Management, MSM or their predecessors and subsidiaries,
including, without limitation, salaries, bonuses, expense reimbursements,
director fees, manager fees, stock options or any other economic
incentives, (iv) Xxxxxxxx'x ownership of any equity or any other security
or ownership interests in Tritel, Tritel Management, MSM or any of their
predecessors and subsidiaries, or any change in such status, (v) any other
matter, event or occurrence relating in any manner to or growing out of any
relationship between Xxxxxxxx and any of Tritel, Tritel Management, MSM or
their predecessors and subsidiaries, or (vi) any and all personal torts of
any type relating to or growing out of any of the matters described in
Section 2.1(i) through (v) above, including, without limitation, libel,
slander, defamation, emotional or mental distress, breach of fiduciary
duties or otherwise. Without limiting the generality of the persons or
entities within the definition of Tritel Releasees, Tritel Releasees shall
include, without limitation, Tritel Management; Airwave; Digital; Mercury
Southern, LLC; MSM, Inc. (f/k/a Mercury Communications Company); AT&T; AT&T
Wireless PCS Inc. and each of their subsidiaries, Affiliates, agents,
attorneys, servants, employees, directors, shareholders, members, managers
and officers.
2.2 Covenant Not to Xxx. For the same consideration recited above, and
as an inducement to Tritel and each Party to execute this Agreement,
Xxxxxxxx does hereby covenant and agree, that he will never make any demand
or claim which he may have or claim to have, commence to prosecute, or
cause or permit to be commenced or prosecuted, any action at law or in
equity, or any other proceeding of any kind against the Tritel Releasees,
or any of them, arising or resulting from, growing out of, or in any manner
connected
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with any acts or omissions, facts, events, circumstances, situations or
incidents being released pursuant to the terms of this Agreement.
2.3 Indemnification. Xxxxxxxx agrees to indemnify and hold the Tritel
Releasees harmless from any and all costs and expenses, including
reasonable attorneys' fees, incurred by the Tritel Releasees if Xxxxxxxx
makes any claims or brings forth any suits relating to the matters released
hereby.
2.4 Acknowledgment. Xxxxxxxx hereby acknowledges that the releases
contemplated by this Agreement are in full and complete compromise,
settlement, accord and satisfaction for all such claims hereby released.
3. Termination Agreement. Except as otherwise expressly provided by the
Transaction Documents, (i) Tritel and Xxxxxxxx agree to and hereby release each
other with respect to, and terminate the Other Agreements as they relate to
Xxxxxxxx, including, without limitation, their respective rights, privileges and
obligations relating thereto (collectively, the "TERMINATED RIGHTS AND
AGREEMENTS"), (ii) neither Tritel nor Xxxxxxxx shall have any further
liabilities or obligations of any type to the other under or with respect to any
of the Terminated Rights and Agreements, and (iii) Xxxxxxxx shall have no
further liabilities or obligations of any type to any other parties under or
with respect to any of the Terminated Rights and Agreements. Notwithstanding
this Agreement, the Terminated Rights and Agreements shall continue in full
force and effect as to any and all other parties to each such agreement as if
Xxxxxxxx had never been a party thereto.
4. Limitations on Scope. Notwithstanding the mutual releases of Sections 1
and 2, Tritel and Xxxxxxxx hereby agree and acknowledge: (i) Tritel's,
Xxxxxxxx'x and any other party's rights or obligations under or pursuant to the
Transaction Documents; (ii) the ownership by Xxxxxxxx of, and rights of Xxxxxxxx
with respect to, 4,500 shares of Class A Common Stock in Tritel which (a) shall
continue to be subject to Tritel's Restated Certificate of Incorporation and
that certain Stockholders' Agreement by and among AT&T Wireless PCS Inc., Cash
Equity Investors and Management Shareholders and Tritel dated as of January 7,
1999, as amended, and (b) shall have the rights and limitations provided by the
Transaction Documents, (iii) Xxxxxxxx'x membership interest in, and rights of
Xxxxxxxx with respect to Digital; (iv) Xxxxxxxx'x relationship as a contract
manager of Airwave and Digital, and (v) Xxxxxxxx'x stock ownership interest and
position as an officer and director of Mercury Wireless Management, Inc. and
Mercury International Ventures, Inc., have not been and are not intended to be
released in any manner by, and are not subject to, the terms of this Agreement.
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For purposes of this Agreement, the Transaction Documents means, in
addition to this Agreement, the following documents, all executed on or as of
the same day as this Agreement:
1. Stock Purchase Agreement (MSM);
b. Membership Purchase Agreement (Tritel Management);
3. Stock Purchase Agreement (Tritel);
d. Second Amendment to Stockholders' Agreement;
5. First Amendment to Management Agreement; and
f. Amended and Restated Employment Agreement.
5. Independent Review. In executing and delivering this Agreement, each of
the undersigned parties have relied wholly upon his or its own judgment,
knowledge and belief, as to the nature, extent and duration of the injuries and
damages which he or it may have suffered or sustained, or may sustain in the
future, as a result of or in connection with said claims hereby released; and as
to the questions of liability involved, each of the undersigned parties have had
the benefit of legal counsel of his or its own choosing and the undersigned
further represent and warrant that he or it has not been influenced by any
representations, statements or warranties made by the other parties, or any of
them, concerning the nature, extent or duration of such damages, injuries or
losses, or the legal liability therefor.
6. No Assignment. Each of the undersigned parties hereby represents and
warrants to each of the other parties that he or it has not assigned in any
manner or respect any claim being released by such undersigned party pursuant to
the terms of this Agreement.
7. Entire Agreement and Amendment. This Agreement and the Transaction
Documents set forth all, and supersede and replace all prior covenants,
promises, agreements, conditions and understandings between the parties
concerning the transactions contemplated hereby, and there are no oral or
written, express or implied, covenants, promises, agreements, conditions or
understandings, between and among the parties except as contained in this
Agreement and the Transaction Documents.
8. Governing Law. This Agreement shall be governed and construed in
accordance with the internal laws of the State of Mississippi without regard to
principles of conflicts of law.
9. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which shall
constitute but one and the same instrument.
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10. Integrated Transaction. The provisions of this Agreement are an
integral part of, and are necessary consideration for, the Transaction Documents
and the settlement of existing disputes between and among the parties. Any
breach of, or default under, this Agreement or any of the Transaction Documents
shall constitute a breach of, and a default under, each of this Agreement and
the Transaction Documents.
11. Binding Nature. This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective successors and assigns.
(Intentionally left blank, signature pages follow on next page)
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
day and year first written above.
Tritel, Inc.
By:
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Name:
------------------------------------
Title:
-----------------------------------
Xxxxxxxx:
----------------------------------------
Xxxxx X. Xxxxxxxx, Xx., Individually
AT&T Wireless PCS, Inc.
By:
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Name:
------------------------------------
Title:
-----------------------------------
TWR Cellular, Inc.
By:
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Name:
------------------------------------
Title:
-----------------------------------
Tritel Management, LLC
By:
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Name:
------------------------------------
Title:
-----------------------------------
MSM, Inc.
By:
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Name:
------------------------------------
Title:
-----------------------------------
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Cash Equity Investors:
Toronto Dominion Investments, Inc.
By:
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President
Entergy Wireless Company
By:
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Name:
------------------------------------
Title:
-----------------------------------
General Electric Capital Corporation
By:
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Name:
------------------------------------
Title:
-----------------------------------
Washington National Insurance Company
By:
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Name:
------------------------------------
Title:
-----------------------------------
United Presidential Life Insurance Company
By:
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Name:
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Title:
-----------------------------------
Dresdner Kleinwort Xxxxxx Private Equity
Partners LP
By: Dresdner Kleinwort Xxxxxx Private Equity
Managers LLC, as its general partner
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By:_______________________________
Name: Xxxxxxxxx X. Xxxxxxx
Title: Authorized Signatory
Triune PCS, LLC, a Delaware limited liability
company
By: Oak Tree, LLC, a Delaware limited
liability company
Title: Manager
By: Triune Private Equity, LLC
Title: Manager
By:
------------------------
Name: Xxxxx Xxxxxxxx
Title: President
FCA Venture Partners II, L.P.
By: Clayton-DC Venture Capital Group, LLC, its
general partner
By:
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Name: D. Xxxxxx Xxxxxx, III
Title: Manager
Xxxxxxx Associates, LLC
By:
-----------------------------------------
Its Managing Member
Airwave Communications, LLC (F/K/A Mercury
PCS, LLC)
By: MSM, Inc., its Manager
By:
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Name: X. X. Xxxxxx, Xx.
Title: Vice President
Digitial PCS, LLC (F/K/A Mercury PCS II, LLC)
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By: MSM, Inc., its Manager
By:
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Name: X. X. Xxxxxx, Xx.
Title: Vice President
The Manufacturers' Life Insurance Company
(U.S.A.)
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Trillium PCS, LLC
By:
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Name:
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Title:
-----------------------------------
Management Shareholders:
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Xxxxxxx X. Xxxxxxx, XX
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X. X. Xxxxxx, Xx.
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Xxxxxxx X. Xxxxxx
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Approved as to form:
Xxxxxx, Perry, Watkins, Xxxxx & Xxxxx, PLLC
Attorney for Tritel, Inc.
By:
------------------------------------
Xxxxxx X. Xxxxxxx, Member
Xxxxxx Law Offices
Attorney for Xxxxxxxx
By:
------------------------------------
Wm. Xxxxx Xxxxxx
and
Xxxxxx Law Firm, PLLC
Attorney for Xxxxxxxx
By:
------------------------------------
Xxxxx X. Xxxxxx
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