Exhibit 10.13.3
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SEPARATION AGREEMENT
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This Separation Agreement ("this Agreement"), dated as of April 24, 2001,
is made by and between Independent Wireless One Corporation ("Employer"), a
wholly-owned subsidiary of IWO Holdings, Inc. ("Holdings"), and Xxxxx X. Xxxxxxx
("Employee") regarding his separation from employment with Employer.
Whereas, Employer and Employee wish mutually and amicably to separate, and
they wish to conclude the business relationship that presently exists between
them,
Now, therefore, in consideration of the mutual promises made herein, and
for other good and valuable consideration, the parties hereto agree as follows:
1. TERMINATION OF EMPLOYMENT. Employee acknowledges and agrees that
Employer has terminated his employment effective March 30, 2001
("Termination Date"). Employer acknowledges that its Board of
Directors and the Board of Directors of Holdings consider his
termination to be without Cause, solely for purposes of paragraph 4(a)
of the Stock Option Agreement, executed between Employee and Holdings
as of December 20, 1999.
2. PAYMENTS AND BENEFITS.
A. Employer shall take or cause to be taken the following actions:
1. Employer will pay a separation payment to Employee of
$206,250.00 minus required withholding taxes on the
Termination Date.
2. Employer will pay Employee $4,533.65, as compensation for 46
earned but unused hours of paid time off on the Termination
Date.
3. Employer will pay an additional separation payment to
Employee of $100,000, minus required withholding taxes on or
before April 25, 2001. Per Employee's request, Employer will
pay $4,500.00 of this additional separation payment to his
attorney, Xxxxx X. Xxxxx, Esquire of Xxxxxxxxx, Xxxx &
Brecker LLP.
4. Employer will pay an amount equal to the Employee's health
insurance premium through COBRA for up to six months.
5. Employer will pay up to $10,000 for employment counseling
services to the employment counseling service provider of
Employee's choice. If Employee does not incur $10,000 in
employment counseling fees within 10 months of the
Termination Date, Employer agrees to pay the unused balance
to Employee in cash.
6. Holdings agrees to waive any accrued but unpaid interest due
as of the date of this Agreement under the Loan and Pledge
Agreements between Employee and Holdings, dated December 12,
2000 and March 20, 2000.
7. Holdings agrees to pay Employee the total purchase price of
$172,783.68 for the repurchase of 30,077.1600 shares of
Class B Common Stock of Holdings, which Holdings has elected
to repurchase under and pursuant to the terms and conditions
of the Management Bonus Stock Agreement dated December 20,
1999 and the Management Stock Purchase Agreement dated March
20, 2000, entered into by and between Holdings and Employee,
such agreements being hereby incorporated by reference.
8. Employee agrees that the payments provided for in this
paragraph 2 are in lieu of all other benefits and claims
that Employee might have against the Employer or against
other Employer Released Parties.
9. Employee agrees he is not entitled to, and Employer is not
liable for, any salary payments, employee benefits
(including but not limited to vacation accruals), or other
compensation for the period of his employment from March 30,
2001 through December 31, 2001, except as explicitly stated
in this Agreement.
B. It is understood and agreed that Employee will retain vested stock
options for a total of 299,515.1400 shares in the Class B Common
Stock of Holdings, consisting of currently vested stock options for
201,685.4040 shares of such stock, and vested stock options for
97,829.7360 additional shares in such stock for the time elapsed
between January 1, 2000 and March 30, 2001. It is expressly
understood and agreed with respect to all of these vested stock
options that Employee shall have 18 months from the Termination
Date (March 30, 2001), which is until September 30, 2002, to
exercise said vested stock options, in accordance with, and subject
to, the terms and conditions of the applicable Stock Option
Agreement and plan documents. It is understood and agreed that
Employee will retain 7,099.4061 shares of Class B Common Stock of
Holdings, which Employee purchased on December 12, 2000.
C. Employee acknowledges and agrees that he is not entitled to any
other stock options, stock shares, or other equity interests in
Employer, Holdings, or IWO Holdings Limited except as explicitly
stated in this Agreement, and that the Management Warrant dated as
of December
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20, 1999, and the Performance Vesting Options referenced in
paragraph 3(a)(ii) of his Stock Option Agreement dated as of
December 20, 1999, are hereby cancelled, rescinded and superseded
and are no longer applicable to Employee.
D. Employee acknowledges and agrees that he is not entitled to any
performance based employee compensation, bonus or Performance
Vesting Options for the years 2000 or 2001.
E. Employee acknowledges and agrees that all principal outstanding
under the Loan and Pledge Agreements with Holdings, dated December
12, 2000 and March 20, 2000, are due and payable upon the
Termination Date. The principal amount currently outstanding as of
the Termination Date is $193,312.86.
F. Employee agrees to return all company property (including but not
limited to company vehicle, credit card(s), cell phone(s) and
laptop computer) to Xxxxxx Xxxxxx, Director of Human Resources,
Independent Wireless One Corporation at 000 Xxxxx Xxxx Xxxx.,
Xxxxxx, XX 00000 on or before April 30, 2001.
3. NO PAYMENTS AND BENEFITS ABSENT EXECUTION OF THIS AGREEMENT. Employee
recognizes that the payments and other benefits referred to in
paragraph 2 (a)-(f) are in excess of amounts otherwise due him from
Employer, including any amounts due him under Employer's general
policies and programs or under his Agreement of Employment. Employee
understands and agrees that he would not receive the consideration
specified in paragraph 2 except for his execution of and compliance
with this Agreement and the agreements incorporated herein by
reference and Employer's material reliance upon his fulfillment of the
promises contained herein.
4. GENERAL RELEASE OF CLAIMS BY EMPLOYEE.
For and in consideration of the payments and other covenants
referenced in this Agreement, Employee fully and completely releases
Employer, Holdings, and IWO Holdings Limited, their respective
directors, officers, shareholders, attorneys, benefit plans, agents,
and employees, both present and former, and their respective
successors, predecessors, subsidiaries, and affiliates, and any person
or entity acting for or on behalf of Employer, Holdings, or IWO
Holdings Limited (collectively "the Employer Released Parties"), from
any and all claims, liabilities, demands, and causes of action of any
kind, in law or in equity, whether known or unknown, which against the
Employer Released Parties, Employee, his heirs, executors, legal
representatives and assigns, ever had, now have, or hereafter may
have, by reason of any matter, thing or cause whatsoever from the
beginning of the world to the day of the date of this General Release,
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including, but not limited to, claims arising out of Employee's
employment or termination of employment with Employer.
This General Release includes, but is not limited to, any claims
arising under Title VII of the Civil Rights Act of 1964, the
Rehabilitation Act of 1973, the Americans With Disabilities Act of
1990, the Employee Retirement Income and Security Act, the Equal Pay
Act, the Age Discrimination and Employment Act, the Family and Medical
Leave Act, and the New York Human Rights Law, all as amended, or any
other federal, state, or local civil rights statute or constitution,
claims for back-pay, claims for front pay, claims for interest, claims
for wrongful discharge, constructive discharge, or unjust dismissal,
claims for breach of any alleged oral, written, or implied contract of
employment, claims for salary or severance payments, claims for
benefits, claims for stock options, claims for employment
discrimination or harassment, claims for humiliation, claims for
defamation, claims sounding in tort, claims for emotional distress,
claims for reinstatement, claims for pain and suffering, claims for
punitive damages, claims for compensatory damages of any kind, and
claims for injunctive relief, and claims for attorneys' fees.
5. PROHIBITED STATEMENTS. In further consideration of the terms of this
Agreement, Employee agrees to refrain from taking any action or making
any statements, written or oral, which disparage or defame the
goodwill or reputation of the Employer, Holdings, IWO Holdings
Limited, their respective officers, directors, or employees. In
further consideration of the terms of this Agreement, the officers and
directors of Employer agree to refrain from taking any action or
making any statements, written or oral, which disparage or defame the
goodwill or reputation of Employee. The officers and directors of
Employer further agree to cause the officers and directors of Holdings
to refrain from taking any action or making any statements, written or
oral, which disparage or defame the goodwill or reputation of
Employee.
Employer agrees to give Employee a neutral employment reference,
signed by a representative of the Company, which describes Employee's
job responsibilities and indicates that Employee left his employment
voluntarily for his own personal reasons, upon Employee's request.
6. CONFIDENTIALITY. Employee will keep confidential the terms and
conditions of this Agreement, except as otherwise required by law or
as required to effectuate the terms of this Agreement, and except that
he may inform his spouse and communicate confidentially with his legal
and financial advisors, each of whom shall agree in advance to keep
such information confidential. Employer's officers and directors will
keep confidential the terms and conditions of this Agreement, except
as otherwise required by law, or as required to effectuate the terms
of this Agreement, or as required to fulfill any fiduciary, legal, or
other obligations towards Employer's shareholders, creditors, or
investors that
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Employer may, in its sole judgment, deem to exist. Employer's officers
and directors also may confidentially communicate the terms and
conditions of this Agreement to legal and financial advisors, and to
the officers and directors of Holdings and IWO Holdings Limited, each
of whom shall agree in advance to keep such information confidential.
7. NO LITIGATION. Employee agrees never to file or institute against
Employer or any of the Employer Released Parties, any suit, charge, or
action, before any court, agency, arbitral panel or other tribunal
wherever situated, asserting any claim or cause of action which exists
or may have existed on or before the date of this Agreement. If
Employee initiates any such litigation, the parties sued shall be
entitled to recover from Employee their damages and reasonable costs
and attorneys' fees incurred to enforce this agreement.
8. ADDITIONAL COVENANTS.
A. Employee agrees and acknowledges that the Restrictive Covenants
contained in the Employment Agreement, signed and dated December
20, 1999, and amended on May 5, 2000, shall remain in full force
and effect.
B. Employee and Employer shall take or cause to be taken all actions
and do, or cause to be done, all things necessary, proper or
advisable to consummate and make effective the transactions
contemplated herein.
C. Employer and Employee agree that Employer may deduct withholding
taxes from payments Employer makes to or for Employee, as
appropriate. Employer makes no representations regarding the tax
ramifications of this Agreement.
9. MISCELLANEOUS.
A. The terms of this Agreement may not be changed, waived,
discharged, or terminated orally, except by an instrument in
writing signed by Employer and Employee. The waiver by either
party of a breach of any provision of this Agreement shall not
operate or be construed as a waiver of any subsequent breach by
the same party.
B. This Agreement and the rights and obligations of the parties
hereunder shall be governed by and construed in accordance with
the laws of the State of New York without regard to principles of
choice of laws or conflicts of laws thereof.
C. Each of the parties agrees and submits to the jurisdiction of the
State of New York, and further agrees that any action or
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proceeding under, in connection with, or relating to this
Agreement shall be brought in and adjudicated by the Supreme
Court of the State of New York in Albany County, or if
applicable, in the Federal District Court, the Northern District
of New York.
D. This Agreement shall be binding and shall inure to the benefit of
the parties hereto and their respective predecessors, heirs,
executors, administrators, successors, permitted assigns, agents
and legal representatives.
E. This Agreement contains the entire agreement of the parties with
regard to the subject matter hereof and supersedes all prior oral
or written understandings, memoranda or communications with
regard to the terms or conditions of Employee's termination of
employment with Employer, except as explicitly stated herein.
F. If any of the terms of this Agreement, with the exception of the
General Releases, is held to be void and unenforceable for any
reason under applicable law, all other terms of the Agreement
shall remain fully valid and enforceable.
G. This Agreement may be executed in counterparts, including
facsimile counterparts, all of which taken together shall
constitute but one Agreement.
I, Xxxxx X. Xxxxxxx, acknowledge that I have carefully read and fully
understand all the provisions of this Agreement including the General
Release contained herein. I am entering into this Agreement
voluntarily. I acknowledge that I have been advised to consult an
attorney concerning this Agreement. I have not relied upon any
representation or statement, written or oral, not set forth in this
Agreement. I acknowledge that I have been given 21 days in which to
consider signing this Agreement. I also acknowledge that if I sign
this Agreement, I will have 7 days thereafter in which to change my
mind. This Agreement shall not be effective until 7 days after I have
signed it.
Employee understands that he may be releasing claims that he may not
know about. This is both parties' knowing and voluntary intent.
Employee understands that he is not releasing any claim that relates
to the parties' right to enforce this Agreement, nor any rights or
claims which arise after the signing of this Agreement.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first above written.
Independent Wireless One
Corporation
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/s/ Xxxxx X. Xxxxxxx /s/ Xxxxxx Xxxxxxx
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Xxxxx X. Xxxxxxx By: Xxxxxx Xxxxxxx, C.E.O.
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