EXHIBIT 10.45
SEVERANCE AND MUTUAL RELEASE AGREEMENT
THIS SEVERANCE AGREEMENT (the "Agreement") is entered into the 2nd day of
August 2002, by and among Xxxx X. Xxxxx (the "Executive"), and
XxxxxxxXxxxxx.xxx, Inc., a Delaware corporation (the "Company").
RECITALS
WHEREAS, the Executive founded the Company in 1998 and has since served as
the Chairman and Chief Executive Officer of the Company pursuant to that certain
Employment Agreement between the Company and the Executive dated January 1, 1999
(as amended) (the "Employment Agreement");
WHEREAS, since 1998, the Company has completed over fifteen acquisitions
and in March, 2000, the Company borrowed $15 million (as amended, the "Loan
Facility") from MCG Finance Corporation, (together with its affiliates,
successors and assigns, collectively referred to herein as "MCG") to facilitate
the acquisition of Telecon Communications Corp. and Telesupport, Inc.;
WHEREAS, MCG and the Company subsequently increased the amount of the Loan
Facility and modified certain payment and performance covenants to reflect
changes in the Company's markets and business prospects;
WHEREAS, on December 31, 2001, MCG reduced the amount of the Loan Facility
and simultaneously purchased 50,000 shares of the Company's senior preferred
stock, $.01 par value per share;
WHEREAS, the Company desires to hire a new Chief Executive Officer and the
Executive desires to resign from employment from the Company to pursue other
full-time business interests pursuant to the terms and conditions set forth
herein; and
WHEREAS, as a condition to this agreement, MCG has consented to the
management transition and the other terms and conditions set forth herein and
simultaneously granted certain covenant waivers in connection with the Loan
Facility.
AGREEMENT
NOW THEREFORE, for good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the Company and the Executive
hereby agree as follows:
ARTICLE I
TERMINATION OF EMPLOYMENT AND RELEASE
1.1 TERMINATION; RESIGNATION. The Executive's employment as the Chief
Executive Officer of the Company shall terminate on the date hereof. The
Executive hereby resigns from all offices held at the Company and all offices
and directorships held at the
Company's subsidiaries. The Executive may continue to be a director of the
Company until 12/31/02 at which time he shall resign such directorship.
1.2 RELEASE. In consideration of the agreements contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, each of the parties hereto hereby releases and forever discharges
any and all claims, rights, causes of action, suits, matters and issues, known
or unknown, liquidated or unliquidated, contingent or absolute, state or
federal, in law or equity, that have been, could have been, or in the future
could be asserted, by the other and its successors, parents, subsidiaries,
shareholders, members, affiliates, assigns, heirs, executors, administrators,
agents, insurers, directors, officers, employees, representatives, associates,
attorneys, and any person acting on their behalf either directly, indirectly,
derivatively, or in any other capacity, against the other, including without
limitation the Company's severance obligations under Section 3.8 of the
Employment Agreement; provided however that the foregoing (i) shall not relieve
the Executive of any liability or responsibility to the Company as a result of
the Executive's willful misconduct, gross negligence or fraud (ii) shall not
relieve the Company from its obligations to pay any and all salary and other
benefits through the date hereof; (iii) shall not relieve either party of its
respective obligations arising under this Agreement and (iv) shall not release
the Executive from his obligations under the confidentiality (Section 6) and
non-competition provisions (Section 7) and Non-solicitation (Section 8) of the
Employment Agreement to the extent such provisions survive the termination
thereof, and in connection therewith, the parties acknowledge and agree that
such provisions shall survive for the twelve (12) month period following the
date hereof. Such provisions are set forth in the attached EXHIBIT A.
1.3 EMPLOYMENT AGREEMENT TERMINATED. This Agreement supersedes any other
agreements relating to the Executive's employment or severance, including
without limitation the Employment Agreement.
1.4 PRESS RELEASE. The Company and the Executive shall issue a joint press
release announcing the Executive's resignation in a form substantially similar
to the press release attached hereto as EXHIBIT B.
1.5 NON DISPARAGEMENT. Executive agrees to refrain from making any
defamatory or disparaging remarks about the Company or any of its officers,
directors, employees, lenders, preferred stockholders, products or services to
any person or persons. The Company agrees, and agrees to cause its officers,
directors, lenders and employees, to refrain from making any defamatory or
disparaging remarks about Executive to any person or persons.
ARTICLE II
SEVERANCE BENEFITS
2.1 SEVERANCE PAYMENTS. Upon the execution hereof, the Executive shall
receive an initial severance payment in the amount of One Hundred Seventy Five
Thousand Dollars ($175,000.00). Thereafter, the Executive shall receive
severance payments totaling an additional Seventy Five Thousand Dollars
($75,000.00), payable in equal installments over the six (6) months following
the date hereof, such payments to be made on the Company's regular
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payroll dates. All severance payments described herein shall be paid on a 1099
basis. The Executive shall be responsible to pay all taxes required to be
withheld in connection therewith, including all applicable federal, state and
local income taxes and shall indemnify the Company from any claims in connection
with any claim relating to the Executive's failure to pay such taxes. In the
event that either (i) the Company fails to make any payment due hereunder to
Executive within five (5) days of its due date or (ii) Executive is removed from
the Board of Directors without cause , then the Company shall immediately make a
lump sum payment to Executive of all remaining payments due to Executive under
this Section 2.1.
2.2 HEALTH INSURANCE. The Company shall continue to provide the Executive
with family health and dental insurance coverage under the Company's existing
insurance plans for the twelve (12) months following the date hereof.
2.3 INSURANCE; INDEMNITY. The Company shall continue in full force and
effect Directors' and Officers' insurance for the benefit of its past and
current directors and officers, including the Executive for a period of two
years after the date hereof. The Company shall not amend its charter or bylaws
in any manner which would reduce the Company's indemnity obligations to its
directors and officers for a period of two years after the date hereof.
ARTICLE III
CONSULTING SERVICES, BUSINESS ACQUISITIONS AND DIRECTOR
3.1 CONSULTATION. Provided the Company is current in its severance and
other obligations hereunder, at the Company's reasonable request, the Executive
shall from time to time provide corporate development consultation and advice,
provided that (i) any such consultation shall at no time exceed ten (10) hours
per month and (ii) the Executive shall provide such services from the Company's
Wall, New Jersey office (the "Wall Office") or via telephone. During the six (6)
months following the date hereof, the Company agrees to allow Executive
continued use of his business and personal e-mail accounts (xxxx@xxxxxx.xxx,
xxxxxx@xxxxxx.xxx, xxxxx@xxxxxx.xxx and xxxxxx@xxxxxx.xxx) with the Company at
no charge and the Company shall refrain from interfering in any way with such
accounts.
3.2 BUSINESS ACQUISITIONS. In addition to all other compensation and
payment provided to the Executive pursuant to this Agreement, the Executive
shall receive a fee equal to 1.5% of the acquisition price of any future
consummated business/merger acquisition transactions referred to the Company by
the Executive, including without limitation transactions relating to Applied
Theory and Duro; provided however that the Company shall be entitled to a credit
against such fees for the severance payments made to the Executive under Section
2.1 and provided such referrals are made to the Company in writing, the Company
accepts such referral as a qualifying referral and that the Company would not
have otherwise been aware of such referrals . In connection with such services,
the Company shall agree to enter into an M&A Advisory agreement with the
Executive on terms mutually acceptable to the Company and the Executive for a
one year period.
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3.3 DIRECTOR. The Executive shall remain a director of the Company during
2002. In the event that the Executive is elected to continue to serve as a
director during fiscal year 2003, the Company shall provide the Executive with
Non-Employee Director compensation and expense reimbursement same as other
non-employee directors.
ARTICLE IV
OFFICE SPACE AND FURNITURE
4.1 WALL, NEW JERSEY OFFICE. For so long as the Company maintains the Wall
NJ office, the Executive shall have full use of and access to such space at no
charge, provided such use is consistent with the current use pattern. In the
event that the Company plans to exit the space, it will offer the Executive the
opportunity to assume the lease on the space on similar terms to the existing
lease so long as the Company is relieved of any further liability or obligation
to the landlord.
4.2 FURNITURE. Contemporaneously with the execution hereof, the Company
shall execute the xxxx of sale in the form attached hereto as EXHIBIT C,
pursuant to which the Company shall sell, transfer, convey, assign, and deliver
to the Executive all of the furniture, equipment (the "Assets") located at the
Wall Office free and clear of all liens; provided, however, that during the
period in which the Company occupies the Wall Office and pays rent for such
space, the Company shall share use of the Assets except the Executive's personal
office furniture and computer. The parties agree that the value of the Assets is
$1,500 and the Executive shall be responsible for any income tax in connection
with such transfer.
ARTICLE V
GENERAL PROVISIONS
5.1 NOTICES. Any notices provided hereunder must be in writing and such
notices or any other written communication shall be deemed effective upon the
earlier of personal delivery (including personal delivery by telex or facsimile)
or the third day after mailing by first class mail, to the Company at its
primary office location and to the Executive at his address as listed in the
Company's payroll records with a copy in each instance to Xxxxx & Xxxxxxx, LTD,
Xxx Xxxxx Xxxx Xxxxx, Xxxxx 0000, Xxxxxxxxxx XX 00000, Attn: Xxxxxxx X. Xxxxxxx,
Esq. Any payments made by the Company to the Executive under the terms of this
Agreement shall be delivered to the Executive either in person or at his address
as listed in the Company's payroll records.
5.2 SEVERABILITY. Whenever possible, each provision of this Agreement will
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provisions had never been contained herein.
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5.3 WAIVER. If either party should waive any breach of any provisions of
this Agreement, he or it shall not thereby be deemed to have waived any
preceding or succeeding breach of the same or any other provision of this
Agreement.
5.4 COMPLETE AGREEMENT. This Agreement, together with all Exhibits hereto,
constitutes the entire agreement between the Executive and the Company and it is
the complete, final, and exclusive embodiment of their agreement with regard to
the Executive's termination of employment. It is entered into without reliance
on any promise or representation other than those expressly contained herein.
5.5 AMENDMENT. This Agreement may be amended only upon the mutual written
consent of the Company and the Executive.
5.6 COUNTERPARTS. This Agreement may be executed in separate counterparts,
any one of which need not contain signatures of more than one party, but all of
which taken together will constitute one and the same Agreement.
5.7. HEADINGS. The headings of the Articles and Sections hereof are
inserted for convenience only and shall not be deemed to constitute a part
hereof nor to affect the meaning thereof.
5.8. SUCCESSORS AND ASSIGNS. This Agreement is intended to bind and inure
to the benefit of and be enforceable by the Executive and the Company, and their
respective successors, assigns, heirs, executors and administrators, except that
the Executive may not assign any of his duties hereunder and he may not assign
any of his rights hereunder without written consent of the Company, which
consent shall not be withheld unreasonably.
5.9 GOVERNING LAW; ARBITRATION. All questions concerning the construction,
validity, and interpretation of this Agreement shall be governed by the laws of
the State of Delaware. Any dispute regarding this Agreement shall be resolved by
binding arbitration pursuant to the rules and procedures of the American
Arbitration Association and such arbitration shall be held within a thirty (30)
mile radius of Wall, New Jersey. The arbitrator(s) shall award attorney's fees
and costs to the prevailing party in any arbitration.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties have executed this Agreement on the day and
year written above.
/s/ Xxxx X. Xxxxx
-----------------------------------
Xxxx X. Xxxxx
XxxxxxxXxxxxx.xxx, Inc.
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Title: CFO
-----------------------------
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EXHIBIT A*
*The Executive is referred to as "Employee" in this Exhibit.
6. CONFIDENTIALITY AND NON-DISCLOSURE. Employee recognizes and
acknowledges that during the Employment Period and while serving as a director
he will have access to certain confidential information relating to the Company
and its affiliates, including, but not limited to, operational policies,
financial information, marketing information, personnel information, trade
secrets, customer information (including customer lists), and pricing and cost
policies, that are valuable, special and unique assets of the Company
(collectively, "Confidential Information"). Employee agrees that he will not use
or disclose such Confidential Information to any person, firm, corporation,
association or other entity for any purpose or reason whatsoever, except as is
required in the course of performing his duties hereunder unless (i) such
information becomes known to the public generally through no breach by Employee
of this covenant or (ii) disclosure is required by law or any governmental
authority or is required in connection with the defense of a lawsuit against the
disclosing party, provided, that prior to disclosing any information pursuant to
this clause (ii), Employee shall give prior written notice thereof to the
Company and provide the Company with the opportunity to contest such disclosure.
Employee agrees that for all three following mentioned periods, (i) during the
Employment Period, and (ii) for a period of twelve (12) months after the
termination of his employment, Employee will hold in a fiduciary capacity for
the benefit of the Company, and shall not directly or indirectly use or
disclose, except as authorized by the Company in connection with the performance
of Employee's duties, any Confidential Information, that Employee may have or
may acquire (whether or not developed or compiled by Employee and whether or not
Employee has been authorized to have access to such Confidential Information)
during the term of this Agreement. The covenants contained in this Section 6
shall survive for the Employment Period and for a period of twelve (12) months
thereafter; provided, however, that with respect to those items of Confidential
Information which constitute trade secrets under applicable law, Employee's
obligations of confidentiality and non-disclosure as set forth in this Section 6
shall continue to survive after the applicable period above to the greatest
extent permitted by applicable law. These rights of the Company are in addition
to those rights the Company has under the common law or applicable statutes for
the protection of trade secrets.
7. NON-COMPETITION. Employee expressly covenants and agrees that for the
Employment Period and for a period of twelve (12) months after his resignation
from both Employment and directorship, he shall not, directly or indirectly,
seek, obtain or accept a "Competitive Position" in the "Restricted Territory"
with a "Competitor" of the Company (as such terms are hereafter defined). For
purposes of this Agreement, a "Competitor" of the Company means any business,
individual, partnership, joint venture, association, firm, corporation or other
entity engaged, wholly or partly, in the business of selling voice and data
communications services; the "Restricted Territory" means each state of the
United States of America in which the Company and/or its affiliates transacts
business during the Employment Period; a "Competitive Position" means any
employment, consultancy or officer with any Competitor of the Company whereby
Employee will use or is likely to use any Confidential Information, or whereby
Employee has duties for such Competitor that are the same or substantially
similar to those actually performed by Employee pursuant to the terms hereof.
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Nothing contained in this Section 7 is intended to prevent Employee from
investing in stock or other securities listed on a national securities exchange
or actively traded on the over the counter market or any corporation engaged,
wholly or partly, in the sale of telecommunications products or services;
provided, however, that Employee and members of his immediate family shall not,
directly or indirectly, hold more than a total of three percent (3%) of all
issued and outstanding stock or other securities of any such corporation.
8. NON-SOLICITATION.
8.1 NON-SOLICITATION OF CUSTOMERS AND VENDORS. Employee agrees that
he will not take any customer lists of the Company after leaving his employ and
that he will, for the Employment Period and for a period of twelve (12) months
after his resignation from both employment and directorship, (i) refrain from
soliciting or attempting to solicit directly or by assisting others, any
business from any of the Company's customers, including actively sought
prospective customers, with whom Employee had "material contact" during the
employment for purposes of providing products or services or (ii) refrain from
interfering with any of the Company's agency, supplier or vendor relationships.
8.2 NON-SOLICITATION OF EMPLOYEES. Employee agrees that he will, for
the Employment Period and for a period of twelve (12) months after his
resignation from both employment and directorship, refrain from recruiting or
hiring, or attempting to recruit or hire, directly or by assisting others, any
other employee of the Company who is employed by the Company or any successor or
affiliate of the Company as of the date of this Agreement.
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EXHIBIT B
JOINT PRESS RELEASE
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EXHIBIT C
XXXX OF SALE
XxxxxxxXxxxxx.xxx, Inc., a Delaware corporation (the "Seller"), for One
Dollar ($1.00) and other valuable consideration paid by Xxxx X. Xxxxx (the
"Buyer"), the receipt and sufficiency of which is hereby acknowledged, hereby
sells, transfers, assigns and delivers to the Buyer the assets of the Seller as
more particularly described on the attached SCHEDULE 1 (the "Assets").
TO HAVE AND TO HOLD all and singular the Assets to the Buyer, its
successors and assigns to their own use and behoove forever.
The Seller, for itself and its successors and assigns, hereby covenants
with the Buyer, its successors and assigns, that the Seller is the lawful owner
of the Assets, that the Assets, upon the consent and release of its senior
lender, will be free from all liens, claims and encumbrances, that the Seller
has good right to sell the same as aforesaid, and that the Seller will warrant
and defend the same against the claims and demands of all persons.
IN WITNESS WHEREOF, the Seller has executed this instrument this __ day of
July, 2002.
XxxxxxxXxxxxx.xxx, Inc.
By:
---------------------------------
Title:
------------------------------
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SCHEDULE 1
1 Lap Top
1 Printer - Xxxxxx PC 1060
Nortel Phone System
Router
2 desk top computers
3 printers
Serial Number USCC126842
Serial Number JPDD104557
Serial Number USCC033199
1 conference room table
1 bulletin/dry erase board
1 dry erase board
1 2-piece reception desk with hutch
1 1 waiting room table
4 2-piece desk
3 3-piece desk
2 credenza
1 round table
3 2-piece xxxx desk
3 small file cabinet
6 large file cabinet
5 small desk chairs
3 green waiting chair
3 maroon waiting chair
6 leather executive chairs
4 green leather chairs
2 green leather executive chair
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CONSENT
WHEREAS, MCG Capital Corporation (as assignee of MCG Finance Corporation)
has extended certain loans to XxxxxxxXxxxxx.xxx, Inc., a Delaware corporation
(the "Company") pursuant to that certain Credit Facility Agreement dated as of
March 16, 2000 (as amended and modified prior to the date hereof, including as
amended by that certain Amendment Number One to XxxxxxxXxxxxx.xxx, Inc. Loan
Documents dated as of December 13, 2000 and that certain Amendment Number Two to
XxxxxxxXxxxxx.xxx, Inc. Loan Documents dated as of December 31, 2001;
WHEREAS, MCG Capital Corporation and MCG Finance I LLC (f/k/a MCG Finance
Corporation) are the owners of a certain number of shares of the Company's
stock;
NOW THEREFORE, each of the undersigned on its own behalf and on behalf of
their respective affiliates, in its capacity as a lender and in its capacity as
stockholder of the Company hereby (i) consents to the Company's execution and
delivery of that certain Severance and Mutual Release Agreement between the
Company and Xxxx X. Xxxxx (the "Xxxxx Agreement")of even date herewith and the
transactions contemplated thereby; (ii) consents to the Company's execution and
delivery of that certain Severance and Mutual Release Agreement between the
Company and Xxxxxx X. Xxxxxxxx of even date herewith and the transactions
contemplated thereby; (iii) to the extent necessary, agrees that it will not
vote its shares of capital stock of the Company against such agreement and the
transactions contemplated thereby and (iv) authorizes the Company to file UCC-3
termination statements to release MCG's liens on the Company's assets being
transferred to Xxxx Xxxxx pursuant to Section 4.2 of the Xxxxx Agreement
provided that the form and content of such termination statement is cleared with
MCG in advance of filing.
IN WITNESS WHEREOF, the undersigned has execute this consent as of the __
day of August, 2002.
MCG Capital Corporation
By:
-------------------------------
Title:
----------------------------
MCG Finance Corporation
By:
-------------------------------
Title:
----------------------------
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