Exhibit 10.21
SEPARATION AGREEMENT AND RELEASE
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This Separation Agreement and Release ("Agreement") is entered into by and
between Citizens Communications Company, a Delaware Corporation, and its
affiliate Citizens Telecom Services Company, LLC ("Citizens" or "Company"), and
Xxxx X. Xxxxx, III ("Employee"). Employee enters into this Agreement on behalf
of the Employee, the Employee's spouse, heirs, successors, assigns, executors,
and representatives of any kind, if any.
WHEREAS, the Employee is covered by an Employment Agreement with the
Company dated February 15, 2005 ("Employment Agreement").
WHEREAS, the Employee's employment with the Company will terminate
effective November 15, 2007 ("Separation Date").
WHEREAS, the Company will provide the Employee with certain severance
benefits described below in exchange for the release of any claims that the
Employee may have against the Company, including any claims concerning the
Employee's employment with the Company or the Employee's termination of
employment, and the other promises contained in this Agreement.
WHEREAS, the Employee accepts these severance benefits in return for the
Employee signing a full release of any claims the Employee might have against
the Company, including any claims concerning the Employee's employment, the
termination of that employment, and any claims for any benefits pursuant to that
employment, and in return for the other promises contained in this Agreement.
WHEREAS, the Employee and the Company enter into this Agreement for the
purpose of concluding and resolving all matters relating to the Employee's
employment with the Company, the terms and conditions of that employment, and
the termination of that employment.
THEREFORE, the Company and the Employee agree as follows:
1. Termination of Employment. The Employee's employment with the Company will
terminate effective upon the close of business on the Separation Date. The
Employee shall have no right to re-employment with the Company after the
Separation Date.
2. No Admission. Neither the Company's signing of this Agreement nor any
actions taken by the Company toward compliance with the terms of this
Agreement constitute an admission by the Company that it has acted
improperly or unlawfully with regard to the Employee or that it has
violated any federal, state, or local law.
3. Separation Benefits. Subject to the Employee's compliance with the terms of
this Agreement (and provided that the Employee does not revoke this
Agreement), the Company will provide the following separation benefits:
(a) The Company will pay the Employee severance pay in the amount of Four
Hundred Fifteen Thousand Dollars ($415,000.00). Such severance pay
shall be distributed to the Employee in a lump sum, less all
applicable taxes and payroll deductions. Such payment will be made by
the Company six (6) months and one (1) day after the later of the
Separation Date and the Effective Date of this Agreement as provided
in Section 15 below.
(b) The Company will pay the Employee an additional Four Hundred Fifteen
Thousand Dollars ($415,000.00) as the Employee's Target Bonus under
the Employment Agreement. Such amount shall be paid to the Employee in
a lump sum, less all applicable taxes and payroll deductions. Such
payment will be made by the Company six (6) months and one (1) day
after the later of the Separation Date and the Effective Date of this
Agreement as provided in Section 15 below.
(c) The Company will pay the Employee for eleven (11) days of unused and
accrued PTO pursuant to the Company's PTO policy. Applicable taxes
will be withheld. Such payment will be made by the Company within
fourteen (14) days after the Separation Date.
(d) The restrictions on the Eighty-One Thousand Six Hundred Sixty-Seven
(81,667) restricted shares of Citizens Communications Company stock
that the Employee has shall lapse on the later of the Separation Date
and the Effective Date of this Agreement as provided in Section 15
below.
(e) The Company will reimburse the Employee for all reasonable business
expenses properly incurred by the Employee in accordance with the
Company's policy on or prior to the Separation Date.
(f) The Company will pay on the Employee's behalf the premiums or
equivalent premiums (to the extent set forth below) for the Employee's
coverage and for the Employee's family, if applicable, under the
Company's group medical, dental, vision plans and group life insurance
plan if the Employee elects to continue coverage under such plans
through November 30, 2008. During the period of Company paid benefits,
the Employee will remain responsible for the Employee's share of the
cost of Company provided medical, dental, vision, and life insurance
coverage at the same monthly amount paid by the Employee during the
Employee's last full month of employment by the Company. This monthly
contribution amount will be multiplied by Twelve (12) and the sum
total of this amount will be withheld from the lump sum severance
payment as a "payroll deduction." Beginning December 1, 2008, the
Employee will be eligible to continue coverage under the Company's
group medical, dental, and vision plans under COBRA provided the
Employee pays the applicable premiums.
4. General Releases. The Employee releases and forever discharges the Company,
its subsidiaries, affiliates, and divisions, and its past, present, and
future employees, directors, officers, agents, shareholders, insurers,
attorneys, executors, successors, assigns, and other representatives of any
kind (referred to in this Agreement collectively as "Released Parties")
from any and all claims, charges, demands, liabilities, or causes of action
of any kind, known or unknown, arising through the date the Employee
executes this Agreement, including, but not limited to, any claims,
liabilities, or causes of action of any kind arising in connection with the
Employee's employment or termination of employment with the Company. The
Employee also releases and waives any claim or right to further
compensation, benefits, damages, penalties, attorneys' fees, costs, or
expenses of any kind from the Company or any of the other Released Parties,
except that nothing in this release shall affect any rights the Employee
may have under: (i) this Agreement; (ii) any funded retirement or 401(k)
plan of the Company; or (iii) to COBRA health insurance benefits. Without
limitation, the Employee waives any right or claim to reinstatement of the
Employee's employment with the Company. The claims that the Employee is
releasing include, but are not limited to: claims for wrongful discharge;
constructive discharge; breach of contract; tortious interference with
contract; unlawful terms and conditions of employment; retaliation;
defamation; invasion of privacy; claims for unlawful conspiracy;
discrimination, including any discrimination claim arising under the Age
Discrimination in Employment Act of 1967, as amended, 29 U.S.C. ss.621 et
seq.; Title VII of the Civil Rights Act of 1964, as amended, 29 U.S.C.
ss.2000e et seq.; the Federal Rehabilitation Act of 1973, as amended, 29
U.S.C. ss.701 et seq.; the Americans with Disabilities Act of 1990, 42
U.S.C. ss.12101 et seq.; the Family and Medical Leave Act of 1993, 29
U.S.C. ss.2601 et seq.; the Fair Labor Standards Act of 1938, as amended,
29 U.S.C. ss.201 et seq.; the Employee Retirement Income Security Act of
1974, as amended, 29 U.S.C. ss.301 et seq.; the Worker Adjustment and
Retraining Notification Act, 29 U.S.C. ss.2101 et seq.; the Connecticut
Fair Employment Practices Act, as amended; any other federal, state, or
local constitutional provision, statute, executive order, or ordinance
relating to employment, or other civil rights violations; any claim under
the CIP for any bonus for 2007 or any other year; any claim for additional
severance, compensation or benefits under the Employment Agreement or
otherwise; and any other claims whether based on contract or tort.
5. No Other Proceedings. The Employee represents that the Employee will not
file or join in any action, charge, claim, complaint, lawsuit, or
proceeding of any kind against the Company or any of the other Released
Parties with respect to any claim that is released in this Agreement,
including any matter arising out of or in connection with the Employee's
employment with the Company or termination of employment. If the Employee
breaks this promise and files or joins in any action, charge, claim,
complaint, lawsuit, or proceeding based on any claim that the Employee has
released, then the Employee will pay for all costs the Company or any of
the other Released Parties incurs in defending against the Employee's
claim, including reasonable attorneys' fees. Should any such complaint,
charge, lawsuit, or other action have been filed by the Employee or on the
Employee's behalf, the Employee agrees to withdraw, dismiss, or cause to be
withdrawn or dismissed, with prejudice, any such complaint, charge,
lawsuit, or other action that is pending in any federal, state, or local
agency or court.
6. No Sale of Claim. The Employee represents that the Employee has not given
or sold any portion of any claim discussed in this Agreement to anyone
else.
7. Intentionally Omitted.
8. Cooperation. The Employee agrees to reasonably cooperate with the Company
and its financial and legal advisors when and as the Company requests in
connection with any claims, investigations, or other legal or
administrative proceedings involving the Company with respect to matters
occurring while the Employee was employed by the Company. The Employee
shall be reimbursed for reasonable out-of-pocket travel expenses incurred
in connection with the Employee's cooperation pursuant hereto.
9. Effect of Breach. If the Employee breaches any of the Employee's promises
or obligations contained in this Agreement, then the Company has the right
to immediately stop making the payments described in Section 3. If the
Company exercises its rights under this Section to stop making the payments
described in Section 3, then the Employee will continue to be obligated to
comply with all the Employee's promises and obligations contained in this
Agreement. Additionally, if the Company exercises its rights under this
Section to stop making the payments described in Section 3, then the
Company will also have the right to pursue all additional rights it has
against the Employee pursuant to this Agreement, including, but not limited
to, all the rights described in Section 11, as well as any and all other
legal rights it may have against the Employee for breaching any of the
Employee's promises or obligations in this Agreement.
10. Arbitration. The parties agree that any disputes regarding any rights or
obligations pursuant to this Agreement shall be resolved by final and
binding arbitration pursuant to the Employment Rules of the American
Arbitration Association, except that the Company may seek injunctive relief
to enforce any confidentiality obligations in any court of competent
jurisdiction. Any arbitration hearing must be conducted in Stamford,
Connecticut and shall be a confidential and private proceeding.
11. Enforcement. If any arbitrator or court of competent jurisdiction
determines that the Employee or the Company has violated any of his or its
promises or obligations contained in this Agreement, then the other party
shall be entitled to recover, in addition to its damages, all costs and
expenses incurred in its enforcement efforts, including actual attorneys'
fees, from the violating party. In addition, the parties acknowledge and
agree that a breach by the other party of any of its or his promises or
obligations contained in this Agreement shall cause the other party
irreparable harm and that the other party shall be entitled to injunctive
relief, in addition to damages, for any such breach.
12. Taxes. The Employee recognizes that the payments and benefits provided
under this Agreement will result in taxable income to the Employee that the
Company will report to appropriate taxing authorities. The Company shall
have the right to deduct from any payment made under this Agreement any
federal, state, local, or other income, employment, or other taxes it
determines are required by law to be withheld with respect to such payments
and benefits.
13. Consultation with Counsel. THE EMPLOYEE ACKNOWLEDGES THAT THE EMPLOYEE HAS
BEEN ADVISED, IN THIS WRITING, TO CONSULT WITH AN ATTORNEY OF THE
EMPLOYEE'S CHOICE PRIOR TO SIGNING THIS AGREEMENT AND THAT THE EMPLOYEE HAS
SIGNED THIS AGREEMENT KNOWINGLY, VOLUNTARILY, AND FREELY, AND WITH SUCH
COUNSEL (IF ANY) AS THE EMPLOYEE DEEMED APPROPRIATE. The Employee
understands, however, that whether or not to consult with an attorney is
the Employee's decision. The Employee agrees that the Company shall not be
required to pay any of the Employee's attorneys' fees in this or any
related matter or lawsuit, now or later, and that the amounts payable under
Section 3 are in full and complete payment of all matters between the
Employee and the Company, including, without limitation, attorneys' fees
and costs.
14. Right to Revoke Agreement. THE EMPLOYEE ACKNOWLEDGES THAT THE EMPLOYEE HAS
BEEN PROVIDED WITH A PERIOD OF TWENTY-ONE (21) DAYS IN WHICH TO CONSIDER
WHETHER OR NOT TO ENTER INTO THIS AGREEMENT. FURTHER, THE EMPLOYEE
ACKNOWLEDGES THAT THE EMPLOYEE HAS BEEN ADVISED OF THE EMPLOYEE'S RIGHT TO
REVOKE THIS AGREEMENT DURING THE SEVEN (7)-DAY PERIOD FOLLOWING EXECUTION
OF THIS AGREEMENT. TO REVOKE, THE EMPLOYEE MUST GIVE THE COMPANY WRITTEN
NOTICE OF THE EMPLOYEE'S REVOCATION WITHIN THE SEVEN (7)-DAY REVOCATION
PERIOD.
15. Effective Date of Agreement. This Agreement becomes effective on the eighth
(8th) day after the Employee signs and returns it to the Company, provided
the Employee has not revoked this Agreement pursuant to Section 14.
16. No Reliance. The parties acknowledge that they execute this Agreement in
reliance on their own personal knowledge, and are not relying on any
representation or promise made by any other party that is not contained in
this Agreement.
17. Entire Agreement. This Agreement contains the entire agreement between the
parties concerning the subject matter of this Agreement and supersedes all
prior negotiations, agreements, or understandings between the parties
(including, without limitation, Sections 1 through 7 of the Employment
Agreement), except that any obligations of the Employee to the Company,
under any agreement, policy, or other document in force on the Separation
Date, that by their terms apply after the termination of his employment
shall survive the execution of this Agreement and continue in full force
and effect (including, without limitation, Sections 8 and 9 of the
Employment Agreement). No promises or oral or written statements have been
made to the Employee other than those in this Agreement. If any portion of
this Agreement is found to be unenforceable, all other portions that can be
separated from it, or appropriately limited in scope, shall remain fully
valid and enforceable.
18. Notice. Any notice to be given under this Agreement shall be in writing and
delivered personally, sent by a nationally recognized courier service or
sent by registered or certified mail, postage prepaid, return receipt
requested, addressed to the party concerned at the address indicated below
or to such other address as such party may subsequently give written notice
of under this Agreement:
If to Employee, to:
Xx. Xxxx X. Xxxxx, III 00 Xxx Xxx Xxxx Xxxxxxxxxx, XX 00000
If to the Company, to:
Xxxxxx X. Xxxxxxxx, Esq.
Senior Vice President, General Counsel, & Secretary
Citizens Communications Company
Three Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Any party may serve process in any matter relating to this Agreement in the
same manner.
19. Governing Law. This Agreement shall be governed by the substantive laws of
the State of Connecticut without regard to conflicts of law principles.
20. Headings. All descriptive headings of sections in this Agreement are
intended solely for convenience, and no provision of this Agreement is to
be construed by reference to any such heading.
21. Inducement. To induce the Company to provide the Employee the consideration
recited in this Agreement, the Employee voluntarily executes this
Agreement, acknowledges that the only consideration for executing this
Agreement is that recited in this Agreement, and that no other promise,
inducement, threat, agreement, or understanding of any kind has been made
by anyone to cause the Employee to execute this Agreement. The Employee
acknowledges and agrees that this Separation Agreement and Release is being
executed pursuant to the terms of the Employment Agreement.
THE EMPLOYEE UNDERSTANDS THIS AGREEMENT CONTAINS A FINAL RELEASE OF ALL KNOWN
AND UNKNOWN CLAIMS AND THAT THE EMPLOYEE CAN MAKE NO FURTHER CLAIM OF ANY KIND
AGAINST THE COMPANY OR ANY OF THE OTHER RELEASED PARTIES ARISING OUT OF ACTIONS
OCCURRING THROUGH THE DATE THE EMPLOYEE EXECUTES THIS AGREEMENT.
THE EMPLOYEE AGREES THAT THE EMPLOYEE READ AND UNDERSTANDS THIS AGREEMENT, AND
IS ENTERING INTO THIS AGREEMENT KNOWINGLY AND VOLUNTARILY AND WITHOUT ANY
COERCION.
/s/ Xxxx X. Xxxxx, III Date: November 15, 2007
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Xxxx X. Xxxxx, III
CITIZENS COMMUNICATIONS COMPANY
By:/s/ Xxxx Xxxxx Xxxxxxxxxxx Date: November 15, 2007
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Title: Chief Executive Officer
