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Exhibit 10(1)(xxiv)
AGREEMENT AND RELEASE OF ALL CLAIMS
This Agreement and Release of all Claims (hereinafter "Agreement") is entered
into as of the 24th day of October, 1997 ("Effective Date"), between LCI
International, Inc. (hereinafter "LCII"), LCI International Management
Services, Inc. (hereinafter "LCIM"), and LCI International Telecom Corp.
(hereinafter "LCIT") (LCII, LCIM and LCIT are hereinafter referred to
collectively as the "Companies"), and Xxxxxx X. Xxxxx (hereinafter "Employee").
WHEREAS, the parties hereto desire to end the employment relationship in
accordance with the terms and conditions set forth in this Agreement; and
WHEREAS, the parties wish to release each other from all liabilities relating
to the employment relationship as of the date hereof; and
WHEREAS, the parties do not intend that this Agreement be an admission of
wrongdoing of any kind by Employee or any of the Companies.
NOW, THEREFORE, in consideration of the premises and mutual promises contained
herein, the parties hereby agree as follows:
1. Upon full execution of this Agreement, Employee shall execute and
deliver to the Companies the letter set forth in Exhibit A. Effective
as of the date hereof, Employee shall: (a) not be required to perform
the duties he performed for the Companies prior to the date hereof,
(b) no longer report to work at the Companies; and (c) no longer have
the title of President and Chief Operating Officer. Employee shall
remain an employee of the Companies in an advisory capacity from the
date hereof until the earlier of: (i) October 23, 1998, or (ii) when
such employment is terminated pursuant to Section 5 hereof
("Employment Term"). During the Employment Term, Employee shall be
reasonably available to perform advisory tasks as assigned by the
Companies upon reasonable prior notice, including providing assistance
to the Companies in connection with any litigation. Employee will
cooperate and assist in facilitating the transfer of his previous job
responsibilities to other personnel of the Companies. During the
Employment Term and thereafter, Employee shall make no commitment on
behalf of the Companies and shall have no authority to bind the
Companies in any way. At the completion of the Employment Term, the
parties will make arrangements for Employee to return all of
Companies' property including, without limitation, security cards,
keys, computer and software, all materials relating to work in
progress, and any information relating to the Companies' network,
customers, products, services, strategies, and related matters.
2. Subject to Section 5 hereof, during the Employment Term Employee will
receive his base compensation in effect immediately prior to the
Effective Date, paid on regular pay dates, less applicable taxes.
Employee shall also continue to be eligible to participate in the
following LCI benefits programs, subject to the applicable terms and
conditions of such programs:
a. group insurance, including medical, dental, vision and life
insurance;
b. split dollar life insurance;
c. 401 (k) Plan (including Company matching);
d. Employee Stock Purchase Plan; and
e. Supplemental Retirement Plan;
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Exhibit 10(1)(xxiv)
provided, however, that, during the Employment Term, no vacation time
or pay shall accrue and, except as set forth in Section 4 hereof,
Employee shall not be eligible to receive any payments under the
Companies' 1997 Executive Incentive Compensation Plan ("Incentive
Plan"), or any other bonus plan or receive grants of stock options.
Employee shall also not be eligible to receive any car allowance or
executive perq allowance.
Employee shall not be eligible to participate in or receive benefits
from any bonus or benefit plan of the Companies following the
Employment Term.
During the Employment Term, Employee shall be considered employed by
the Companies for the purpose of the LCII Stock Option Plans and the
Stock Option Agreements to which Employee is a party as of the date
hereof, including matters relating to vesting rights and any "Change
in Control" as defined under said Plans, Stock Option Agreements, or
in the Agreement dated March 20, 1995 between Employee and LCII
("Stock Agreement"), as applicable. If, as of October 23, 1998, the
Employment Term has not been terminated pursuant to Section 5 hereof,
that portion of Employee's LCII stock options that would have vested
had employment continued from October 24, 1998 through October 23,
1999, shall vest and become exercisable by Employee in accordance with
the terms and conditions of the applicable LCII Stock Option Plans.
3. Subject to Section 5.b. hereof, Employee shall provide consulting
services to the Companies from October 24, 1998 through October 23,
1999 ("Consulting Term"). During such Consulting Term, Employee shall
be reasonably available to perform such tasks as assigned by the
Companies upon reasonable prior notice. The Companies shall pay
Employee an amount equal to Employee's annual base salary in effect
immediately prior to the date hereof, less applicable taxes, in return
for being available to perform such tasks, with such amount to be paid
in full on October 23, 1998. Employee shall perform such tasks as an
independent contractor.
4. Employee shall receive a third quarter incentive payment, less
applicable taxes, in accordance with the terms of the Incentive Plan.
Employee shall be eligible to receive a prorated incentive payment
under the Incentive Plan for the fourth quarter of 1997, in an amount
to be determined by the Companies.
5. The employment relationship between the Companies and Employee shall
immediately terminate and the Employment Term shall immediately
terminate if any of the following events occurs prior to October 23,
1998, in which case the Companies shall have no further obligation to
make payments or provide the benefits or arrangements set forth in
Section 2 hereof, effective as of the date of the following:
a. Employee resigns from his employment with the Companies;
b. Employee accepts full time employment with any person or entity
other than the Companies, or goes into business for himself on a
full-time basis, in which event (i) LCI shall pay to Employee an
amount equal to Employee's annual base salary in effect
immediately prior to the date hereof, less applicable taxes; and
(ii) neither party shall have any obligation under Section 3
hereof,
c. Breach by Employee of any obligation under this Agreement; or
d. Employee dies; provided, however, nothing in this Agreement
shall limit or restrict any rights Employee or his estate would
otherwise have in connection with Employee's death
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Exhibit 10(1)(xxiv)
under law, pursuant to any other agreement with the Companies or
pursuant to benefit plans of the Companies.
If an event in Section 5.c. or 5.d. occurs during or prior to the
Consulting Term, upon such event, LCI shall have no further obligation
under Section 3 hereof.
6. In consideration of the Companies' agreement to enter into this
Agreement and in return for Employee's receipt of the benefits hereof,
Employee agrees to the general release and covenant not to xxx
contained in this Section 6 and the other provisions of this
Agreement. It is understood, however, that this release shall not
waive any claim for benefits or any rights to which Employee is or may
be entitled under this Agreement.
Employee, on behalf of himself and his heirs, executors,
administrators, successors and assigns, agrees to release, discharge
and covenant not to xxx the Companies, their subsidiaries and
affiliated companies and their predecessors, successors, assigns,
shareholders, directors, officers, employees, administrators,
fiduciaries and agents, in their individual and representative
capacities (hereinafter referred to collectively as the "LCI
Entities") with respect to all claims, charges, causes of action,
liabilities, suits, debts and demands, of any type, kind, or nature,
whether legal or equitable, and whether known or unknown, which
Employee had, has, or may have against the LCI Entities up to the
Effective Date of this Agreement (collectively, "Waived Claims"),
including, without limitation, (i) any claims relating to Employee's
employment with the Companies; (ii) any claims relating to the
termination of Employee's employment pursuant to the terms of this
Agreement, including but not limited to Employee's agreement to
terminate employment at the expiration of the Employment Term, under
the arrangement as set forth herein; (iii) any claims relating to the
terms, conditions, and benefits associated with such employment or
Employee's termination from employment; (iv) any claims under any
local, state or federal anti-discrimination law, including, without
limitation, Title VII of the Civil Rights Act of 1964, as amended, the
Age Discrimination in Employment Act as amended by the Older Workers
Benefit Act of 1990, the Americans With Disabilities Act, the Employee
Retirement Income Security Act of 1974, as amended, the Fair Labor
Standards Act, and Chapter 4112 of the Ohio Revised Code, Fairfax
County Human Rights Ordinances, Virginia law and labor regulations,
any other law and/or regulation relating to wages, benefits and
employment discrimination, and any and all claims of attorney's fees
and costs; (v) any claims at common law, including, without
limitation, claims for breach of an express or implied contract,
promissory estoppel, or wrongful discharge; (vi) any tort or property
claims; and/or (vii) any other claims, statutory or otherwise.
7. Employee shall not file any lawsuit or claim against any person or
entity released by this Agreement relating to matters arising prior to
or as of the date of this Agreement. Employee further agrees that,
unless compelled to do so by a legally binding subpoena or court
order, he will not, directly or indirectly, encourage, initiate,
participate in, or assist in any way in any individual or class action
lawsuit or administrative, arbitration, mediation, or other proceeding
or actual or prospective claim against Companies, their directors,
officers, employees, agents, affiliates, and/or subsidiaries nor
cooperate voluntarily with any counsel, witness, or advisor assisting
anyone in pursuing any type of claim against the LCI Entities.
8. a. The Companies and Employee shall not disclose, publicize, or
assist others to publicize the terms of this Agreement, reasons
for Employee's termination, policies or business of the
Companies, whether directly or indirectly, to any person or
entity except:
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Exhibit 10(1)(xxiv)
i. members of Employee's immediate family and
professional advisors, who shall be advised of this
non-disclosure obligation and shall be instructed that
they are bound not to publish, disclose, or otherwise
disseminate such information in the same way Employee
is bound. Employee shall be responsible for any
unauthorized disclosure by such recipient;
ii. by the Companies to the extent required by law or as
reasonably necessary in the regular course of
business, or by either party to the extent required by
a final and binding court order or other compulsory
process; and
iii. in any legal proceeding to enforce rights or
obligations under this Agreement.
Upon Employee's receipt of any order, subpoena, or other compulsory
process demanding production or disclosure of this Agreement, Employee
shall immediately notify the Companies in writing of the details of
the requested disclosure no later than ten (10) business days prior to
the date that such disclosure is to be made, or if such notice is
impossible to give, notice shall be given at the earliest practicable
time. Employee specifically agrees not to disclose the terms of this
Agreement to any other employee of Companies or their affiliates.
b. Notwithstanding Paragraph 8.a. above, the Companies shall be
allowed to disclose Employee's position with the Companies and
dates of employment to third parties without prior
authorization.
c. Neither party hereto shall disparage the other.
d. The Companies and Employee shall cooperate and mutually agree on
the content of a press release to be issued on or about October
17, 1997 announcing Employee's termination of employment and
resignation from the Companies' Boards of Directors.
9. The parties mutually agree that the Employment Agreement between
Employee and LCI International Management Services, Inc. (FKA LiTel
Communications, Inc.), dated April 19, 1993, as amended, shall be
superceded by the terms of this Agreement and said Employment
Agreement shall no longer have any force or effect; provided, however,
that all of the provisions of Sections 12 and 13 of the Employment
Agreement shall survive until July 31, 1999, provided further, that
if, during the Consulting Term but prior to July 31, 1999, there is a
"Change in Control" of LCII as defined in the Stock Agreement, the
obligations in Section 13(b) of said Employment Agreement relating to
non-competition shall, as of the legally binding closing date of any
transaction in which a "Change of Control" occurs, be of no continuing
force or effect.
10. Employee hereby acknowledges that the Companies advised Employee:
a. to consult with an attorney before signing this Agreement;
b. he has the right to consider and review this Agreement for a
period of at least twenty-one (21) days;
c. he has the right to revoke this Agreement within seven (7) days
from the date this Agreement is signed by Employee; and
d. that this Agreement shall not become enforceable until such
seven (7) day period has expired.
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Exhibit 10(1)(xxiv)
11. Any revocation by Employee of this Agreement shall be by written
notice delivered personally or by certified mail, return receipt
requested, to the Companies at 0000 Xxxxxxxxxx Xxxxx, Xxxxx 000,
XxXxxx, Xxxxxxxx 00000, Attention: Vice President-Human Resources.
12. This Agreement represents the complete agreement and understanding
between the parties and, except as expressly set forth herein,
supersedes and cancels any prior agreement, promises, representations
or guarantees, whether written or oral, regarding the matters
contained herein. This Agreement shall not be modified except in
writing duly signed by all of the parties. This Agreement shall not
be assigned by Employee without the prior written consent of
Companies.
13. It is understood and agreed between the parties that this Agreement is
not to be construed as an admission of liability by Companies, their
directors, officers, employees, agents, affiliates or subsidiaries or
as an admission that Companies have committed or engaged in any
deceptive or unlawful act, violation, or other breach of duty imposed
by law.
14. This Agreement shall be governed by the laws of the State of Virginia
and shall be binding on each party, its assigns, successors, heirs,
affiliates, and subsidiaries. Any action or claim to enforce or
interpret this Agreement shall be brought in the State of Virginia.
15. Employee shall not apply for employment with the Companies or any of
their affiliates.
16. If any provision of this Agreement is declared judicially to be
invalid, unenforceable or void, such decision shall not have the
effect of invalidating or voiding the remainder of this Agreement, it
being the intent and agreement of the parties that this Agreement
shall be deemed amended by modifying such provision to the extent
necessary to render it valid, legal and enforceable while preserving
its intent or, if such modification is not possible. by substituting
therefor another provision that is legal and enforceable and that
achieves the same objective.
17. A waiver of a breach of, or failure to enforce, any provision of this
Agreement shall not constitute a waiver of any subsequent breach of
the same provision or a waiver of a breach of any other provision of
this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed the Agreement with the
intent that it be effective as of the Effective Date.
LCI International, Inc.
By: /s/ H. Xxxxx Xxxxxxxx Date: 10/17/97
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LCI International Management Services, Inc.
By: /s/ H. Xxxxx Xxxxxxxx Date: 10/17/97
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Exhibit 10(1)(xxiv)
LCI International Telecom Corp.
By: /s/ H. Xxxxx Xxxxxxxx Date: 10/17/97
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/s/ Xxxxxx X. Xxxxx Date: 10/17/97
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Xxxxxx X. Xxxxx
Date:
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Witness
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Exhibit 10(1)(xxiv)
Exhibit A
To the Boards of Directors of LCI International, Inc. and its subsidiaries
(collectively "LCI"): I hereby resign from my positions as an elected officer
and Board member of LCI. This resignation shall take effect as of October 24,
1997.
Sincerely,
/s/ Xxxxxx Xxxxx
Xxxxxx X. Xxxxx
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Exhibit 10(1)(xxiv)
To the Boards of Directors of LCI International, Inc. and its subsidiaries
(collectively "LCI"):
I hereby resign from my positions as an elected officer and Board member of
LCI. This resignation shall take effect as of October 24, 1997.
Sincerely,
Xxxxxx X. Xxxxx
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