Exhibit 10.75
SEVERANCE AGREEMENT AND RELEASE AND WAIVER OF CLAIMS
THIS SEVERANCE AGREEMENT AND RELEASE AND WAIVER OF CLAIMS, dated as of July 1,
2002 (the "Effective Date"), is made and entered into by and between Aquis
Communications Group, Inc. ("Company) located at 0000X Xxxxx 00, Xxxxx 000,
Xxxxxxxxxx, Xxx Xxxxxx, 00000 and Xxxx X. Xxxxxxxx (hereinafter the "Executive")
located care of Deerfield Partners, LLC, 00 Xxxxx Xxxx Xxxxxx, Xxxxx 000,
Xxxxxxxx, XX 0000X (hereinafter the "Agreement"). The Company and the Executive
may also be referred to collectively as the "Parties."
W I T N E S S E T H
WHEREAS, the Executive currently serves as the Chief Executive Officer
("CEO") and a Director of the Company, and
WHEREAS, the Company is in negotiations with its principal lender
regarding the financial restructuring of the Company (the "Restructuring"), and
the Parties recognize that this Agreement is a condition precedent to such a
restructuring, and
WHEREAS, the Parties are currently signatories to a certain executive
services agreement dated December 1, 2001 (hereinafter referred to as the "ESA")
which sets forth the terms and conditions of the Executive's engagement as the
CEO of the Company, and
WHEREAS, the ESA had an initial term that expires on December 31, 2002,
and
WHEREAS, the Parties have mutually resolved to terminate the ESA prior
to the end of its initial term, such termination to be effective on the closing
of the Restructuring, and
WHEREAS, the Parties desire to agree to terms for the premature
termination of the ESA including but not limited to the lost compensation to be
paid to the Executive occasioned by such termination and to set forth the
respective obligations of the Parties going forward.
NOW, THEREFORE, in consideration of the mutual promises herein
contained, and intending to be legally bound hereby, it is agreed as follows:
1. A. Upon the Effective Date of this Agreement, the Executive
shall cease to be CEO of the Company under the terms and conditions of
employment set forth in the ESA dated December 1, 2001, provided however, that
the Executive will keep his position as Director of the Company until the
earlier of (x) the closing contemplated by the Restructuring Agreement dated
July 1, 2002, among the Company, Desert Communications LLC and Finova (the
"Closing Date") and (y) the date on which the Executive's term as a director is
ended in accordance with Delaware law and the Company's Certificate of
Incorporation and Bylaws.
B. As consideration for this Agreement, the Executive shall
receive until the Closing Date a monthly payment of Fifteen Thousand ($15,000)
per month, net of any required withholding, the amount of his previous salary
under the ESA, payable on the first day of each month. Further, the Executive
will, until the Closing Date be entitled to the Company's normal employee
benefits that were in effect during the term of his employment with the Company.
C. The options as delineated in the ESA shall continue for the
stated term of the options, notwithstanding any provision in the option
agreement providing for expiration on or about cessation of services under the
ESA, or any other provision to the contrary.
D. Executive will receive appropriate tax documentation for
the consideration received hereunder. Executive acknowledges that Company's
foregoing consideration represents compensation for a full and complete
settlement of any claims or allegations that might be raised with respect to the
premature termination of the ESA or any claims with respect to the Executive's
employment or otherwise. The Executive further acknowledges that the foregoing
consideration provided by Company in exchange for his waiver of claims and other
covenants and promises as outlined below is in addition to anything of value to
which he is already entitled.
2. As a material inducement for Company to enter into this
Agreement, Executive hereby agrees, acknowledges and promises to forego and
waive any and all rights he may have to file a claim, action, complaint,
controversy, cause of action, lawsuit, charge, complaint, suit, demand or
petition ("claim" or "claims") in a court of law or any other tribunal against
Company, Company's owners, stockholders, predecessors, successors, assigns,
agents, directors, officers, current and former employees, representatives,
attorneys, divisions, groups, subsidiaries, affiliates and parent companies, as
well as any parent companies' owners, stockholders, predecessors, successors,
assigns, agents, directors, officers, current and former employees,
representatives, divisions, groups, subsidiaries and affiliates, and all persons
acting by, through, under, or in concert with any of them, or any of them
(collectively, "Releasees"), for any rights, claims or entitlements Executive
claims to have against Company and/or releasees, known and/or unknown, xxxxxx
and/or inchoate, which Executive may now have, own, or hold, or claim to have,
own or hold, or which Executive at any time heretofore had, owned or held, or
claimed to have, owned, or held, or which Executive at any time may have, own,
or hold, or claim to have, own or hold against Company and/or releasees, from
the beginning of time to the Effective Date of this Agreement, by reason of any
claims arising from or related to Executive's employment relationship with
Company or otherwise, any affiliate of Company and/or releasees, and separation
of any employment relationship and any matters or allegations which are the
subject matter of the aforementioned allegations and contentions or otherwise,
including any claims arising from any alleged violation by releasees of any
federal, state or local statutes, regulations, ordinances or common law causes
of action in law and in equity (and all associated claims for attorneys' fees),
including but not limited to:
A. the Federal Age Discrimination in Employment Act of 1967, as amended;
B. Title VII of the Civil Rights Act of 1964, as amended;
C. 42 U.S.C.ss.1981, as amended;
D. the Federal Equal Pay Act of 1963;
E. the Federal Employee Retirement Income Security Act of 1974, as
amended; including but not limited to, Section 510 claims for
discrimination;
F. the Americans With Disabilities Act, as amended;
G. the Family and Medical Leave Act;
H. Executive Order 11246 (applicable to Federal Government contractors and
subcontractors);
I. the Vietnam-Era Veteran's Readjustment Assistance Act of 1974
(applicable to Federal Government contracts and subcontractors);
J. the Rehabilitation Act of 1973 (applicable to Federal Government
contracts and subcontractors);
K. the Immigration and Nationality Act, as amended;
L. the Uniform Services Employment and Reemployment Rights Act of 1994;
M. the New Jersey Law Against Discrimination, the New Jersey Conscientious
Employee Protection Act, the New Jersey Family Leave Act, the New
Jersey Workers' Compensation Act, the New Jersey State Wage and Hours
law, the New Jersey Political Activities of Employees law, the New
Jersey Jury Duty Employment Protection law, the New Jersey Lie Detector
Test law, the New Jersey Tobacco Use law, the New Jersey Genetic
Testing law;
N. Any Federal, State or local law, rule, statute, ordinance, regulation,
executive order or guideline, including, but not limited to, those laws
specifically described above;
O. Any oral or written contract of employment with Company, express or
implied, or any oral or written agreement, express or implied,
purporting to establish terms and conditions of employment or
addressing termination of employment; and
P. Any other Federal, State or local common-law causes of action related
to Executive's employment with Company or separation from employment
with Company.
Executive acknowledges and agrees that this release specifically
includes and resolves any and all claims (in addition to those above) for
related costs and/or attorneys' fees.
3. This Agreement and the releases hereunder are without prejudice to
the Parties' right to enforce the terms and conditions of this Agreement.
4. Executive acknowledges that he has not heretofore filed any claims
against Releasees in a court of law or other tribunal other than those claims
covered by the above captioned action. To the extent Executive has previously
filed other claims, he agrees to take all steps necessary to dismiss that action
with prejudice within ten (10) calendar days of signing this Agreement and
agrees that claims raised therein are released and waived by virtue of this
Agreement. Except as required by law, Executive further agrees that no other
person, organization or entity acting on his behalf and/or with his consent
shall file such a claim against Releasees.
5. Company represents that it has Director's and Officer's liability
insurance that provides coverage for covered events during the time of the
Executive's tenure with the Company as an Officer and/or Director. The Company
also represents that its Certificate of Incorporation provides for the
indemnification of Officers and Directors under circumstances stated therein.
The Company agrees that it will not take any action to abrogate any rights or
privileges that the Executive currently enjoys under any Director's and
Officer's Liability Policy or Certificate of Incorporation relating to the issue
of defense and/or indemnification and that it will maintain comparable insurance
for a period of no less than three (3) years from the Effective Date of the
Agreement. Executive also represents that he will abide by all conditions
precedent or obligations thereunder in order to avail himself of such coverage
and/or such defense and indemnification. Except as heretofore provided, it is
the intent of this paragraph that the Executive stand in no better or no worse
position in terms of defense and indemnification vis-a-vis others that were
Directors and Officers during the Executive's tenure in such roles with the
Company.
6. Company, on behalf of itself, the Releasees, their collective
predecessors, successors and assigns, hereby unconditionally releases,
discharges and acquits Executive, his successors, heirs, executors,
administrators, and assigns from all actions, claims, causes of action, charges,
suits, debts, dues, sums of money, accounts, reckonings, bonds, bills,
specialties, covenants, contracts, controversies, agreements, promises,
variances, trespasses, damages, judgments, extents, demands, or any other type
of relief of any nature whatsoever, whether known or unknown, whether statutory
or common law, whether federal, state, or local, which the Company, the
Releasees or any of them, has asserted or could have asserted, now has, or ever
had, against Executive, his successors, heirs, executors, administrators, and
assigns from the beginning of the world to the Effective Date of this Agreement.
7. It is the purpose of the mutual waiver and release paragraphs of
this Agreement for the parties to affect a full general release of each other,
except with respect to specifically stated exceptions or obligations stated
hereunder.
8. Should Executive file a claim against Releasees with an agency or
tribunal other than a court of law which claim arose prior to or on the date
Executive signs this Agreement and/or which claim related in any way to
Executive's employment with Company, separation from employment with Company
and/or any matters or allegations which are the subject of the aforementioned
allegations and contentions or otherwise, Executive agrees to irrevocably and
unconditionally release, acquit, and forever discharge Releasees from any and
all liability which may result from that claim (including attorney's fees, costs
actually incurred, and liquidated damages), of any nature whatsoever, and he
will not participate in any recoveries which may result from that claim. This
release includes, but is not limited to, any claims arising from any alleged
violation by Releasees of any federal, state or local statutes, regulations,
ordinances or common law causes of action in law and in equity, including but
not limited to, those causes of action listed above.
9. Executive acknowledges that he has not heretofore filed any such
claims against Releasees, and Company acknowledges that it has not heretofore
filed any claims against Executive. To the extent Executive has previously filed
such a claim, Executive agrees to release, acquit and forever discharge the
Releasees from any and all liability which may result from that claim, of any
nature whatsoever, and will not participate in any recoveries which may result
from that claim. To the extent Company has previously filed such a claim,
Company agrees to release, acquit and forever discharge Executive from any and
all liability which may result from that claim, of any nature whatsoever, and
will not participate in any recoveries which may result from that claim.
10. Executive agrees that he will be responsible for any income tax
liability which may be imposed on the receipt of the consideration by the
Executive. Executive also agrees to indemnify Company against and hold Company
harmless from any and all liability for withholding taxes imposed by any
federal, state or local taxing authority, as well as liability for any fines,
penalties and interest which may be imposed on Company on the consideration.
11. Executive agrees that he will not voluntarily assist others in
bringing any type of claims against any of the Releasees, involving any matter
allegedly occurring and/or occurring in the past up to the date of this
Agreement, or involving and based upon any claims which are the subject of this
Agreement, unless otherwise permitted or required by law or legal process
(including subpoenas).
12. Executive and Company (on behalf of itself and its Managerial Level
employees, and Directors ), agree that each shall not defame, slander, or libel
each other.
13. The Executive agrees to assist the Company by making himself
reasonably available and by complying with the reasonable requests of Company
and Company's counsel, in the event that Company needs his testimony or other
assistance while defending any claim, action or lawsuit brought by or against
the Company or its affiliates, subsidiaries, employees, officers and directors,
concerning any matter about which the Executive has knowledge. The Company shall
pay for all reasonable disbursements approved in advance, and if the assistance
is needed beyond the date of December 31, 2002, the Company shall pay the
Executive a per diem rate of $1,500 for part or full days for his time spent
with respect to assistance. Incidental telephone calls and correspondence
performed on a particular day do not qualify as a "part day" for purposes of
compensation hereunder, unless the Executive expends more than three (3) hours
of effort on that day. The Company also agrees to pay reasonable attorney's fees
for the Executive's counsel should separate counsel be reasonably necessary at
any time throughout.
14. In the event that the restructuring contemplated by the Parties is
not consummated by October 15, 2002, the Executive's resignation as CEO shall be
null and void and the ESA and all its terms shall be reinstated in full force
and effect.
15. This Agreement shall not in any way be construed as an admission by
the Company of any acts of wrongdoing whatsoever against Executive or any other
person, and Company specifically disclaims any liability to Executive or any
other person, on the part of itself, its affiliates, its officers, employees,
agents or parents.
16. Executive represents that he has not heretofore assigned or
transferred, or purported to assign or transfer, to any person or entity, any
claim or any portion of a claim covered by this Agreement.
17. Executive represents and acknowledges that in executing this
Agreement he does not rely, and has not relied, upon any representation or
statement made by Company, or any of the Releasees or their agents,
representatives or attorneys with regard to the subject matter, basis, content
or effect of this Agreement or otherwise.
18. Executive acknowledges that prior to the execution of this
Agreement, he sought the advice and counsel of his attorney regarding the
contents of this Agreement and that he was advised to do so in writing.
Executive acknowledges that he has entered into this Agreement knowingly,
voluntarily and of his own free will.
19. Executive acknowledges that he has been given a reasonable period
of time of approximately twenty-one (21) days in which to consider the terms of
this Agreement . To the extent Executive wishes to execute this Agreement prior
to the conclusion of the twenty-one (21) day period, Executive acknowledges that
he will only do so in a knowing and voluntary manner and of his own free will.
20. Executive acknowledges that for a period of seven (7) days
following the execution of this Agreement, he may revoke the Agreement and the
Agreement shall not become effective or enforceable until the revocation period
has expired ("Effective Date"). Notice of Revocation must be given to Xxxxxx X.
Xxxxx, c/o Xxxxxxx Xxxx LLP, Xxx X&X Xxxxx, Xxxxx 0000, Xxxxxxx, Xxx Xxxx 00000.
Executive acknowledges that he shall not receive any of the benefits or
consideration provided in this Agreement until the seven day revocation period
has expired and the Agreement has not been revoked and all other conditions to
payment of the consideration have been satisfied.
21. The parties agree that any changes to this Agreement, material or
immaterial, will not restart the running of the twenty-one (21) day period
referred to above. If Executive revokes this Agreement, it shall be null and
void and the obligations or entitlements of both parties under this Agreement
shall be eliminated.
22. This Agreement shall be binding upon Executive and upon his heirs,
administrators, representatives, executors, successors and assigns, and shall
inure to the benefit of Company and any of the Releasees and each of them, and
to their successors and assigns.
23. This Agreement is made in the State of New Jersey and shall in all
respects be interpreted, enforced and governed under the laws of said State,
without regard to its choice of law provisions, as well as the laws of the
United States of America. The language of all parts of this Agreement shall in
all cases be construed as a whole and according to its fair meaning.
24. Should any word, phrase, sentence, paragraph, clause or provision
of this Agreement be declared or be determined by any court or other tribunal to
be illegal or invalid, the validity of the remaining parts, terms or provision
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.
25. As used in this Agreement, the singular or plural shall be deemed
to include the other whenever the context so indicates or requires.
26. The Parties hereto shall take such further action and execute such
further instruments or documents as may be reasonably necessary to effectuate
the purpose and intent of this Agreement.
27. This Agreement sets forth the entire Agreement among the Parties
hereto, and fully supersedes any and all prior Agreements or understandings
between the Parties hereto pertaining to the subject matter hereof. The failure
of either Company or Executive to require the performance of any term or
obligation of this Agreement or the waiver by either Company or Executive of any
breach of this Agreement, shall not prevent any subsequent enforcement of such
term or obligation and shall not be deemed a waiver of any subsequent breach. No
modification or waiver of any provision of this Agreement shall be effective
unless in writing and signed by Company and Executive.
28. All notices, requests, demands or other communications hereunder
must be in writing and shall be deemed to have been duly given if delivered by
hand, mailed within the continental United States by certified or registered
mail, postage prepaid, return receipt requested, or by a reputable overnight
courier such as federal express, addressed to the party to whom the notice is
directed at the "Notice Address" of such party. The Notice Address of each party
is:
If to Company: Aquis Communications Group, Inc.
0000X Xxxxx 00
Xxxxx 000
Xxxxxxxxxx, Xxx Xxxxxx 00000
with a copy to: Xxxxxxx Xxxx, LLP
Xxx X & X Xxxxx, Xxxxx 0000
Xxxxxxx, Xxx Xxxx 000000
Attn: Xxxxxx Xxxxx
If to Executive: Xxxx X. Xxxxxxxx
c/o Deerfield Partners, LLC
00 Xxxxx Xxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
29. This Agreement may be executed through the use of separate
signature pages in multiple originals and in counterparts, each of which shall
be deemed an original and all of which together shall constitute one and the
same Agreement, binding on all parties, notwithstanding that all parties are not
signatories to the same counterpart. The parties shall exchange original signed
Agreements as soon as practicable following delivery and execution as aforesaid.
PLEASE READ CAREFULLY. THIS AGREEMENT INCLUDES
A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS
AQUIS COMMUNICATIONS GROUP, INC.
By: /s/ D. Xxxxx Xxxxxxxx
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Name: D. Xxxxx Xxxxxxxx
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Title: CFO
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EXECUTIVE XXXX X. XXXXXXXX
Date: /s/ Xxxx X. Xxxxxxxx
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COMMONWEALTH OF MASSACHUSETTS }
ss.
COUNTY OF ______________ }
I HEREBY CERTIFY that on this day before me, an officer duly qualified
to take acknowledgments, personally appeared Executive, XXXX X. XXXXXXXX,
personally known to me or who has produced (type of identification) and has
acknowledged before me that he executed the foregoing freely and voluntarily for
the purpose therein expressed, who did take an oath.
WITNESS my hand and official seal at said County and State, this __ day
of ____________, 2002.
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