Exhibit 10.28
SEPARATION AGREEMENT
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Agreement made as of October 13, 1999, between Group Long Distance,
Inc., a corporation organized under the laws of the State of Florida (the
"Company"), and Xxxxxx X. Xxxxx, Xx. ("Xxxxx").
WHEREAS, Xxxxx has been employed by the Company as its President and
Chief Executive Officer, pursuant to an Employment Agreement effective February
28, 1997 (the "Employment Agreement"); is a member of and Chairman of the Board
of Directors of the Company and serves as an officer and director of
subsidiaries of the Company; and
WHEREAS, the Employment Agreement, by its terms, expires on February
27, 2000; and
WHEREAS, the Company and Xxxxx wish to terminate the employment
relationship and the Employment Agreement, as well as terminate Xxxxx'x service
as a director of the Company and as an officer and director of the Company's
subsidiaries effective October 13, 1999 (collectively referred to as
"Employment")
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, the Company and Xxxxx hereby agree as follows:
1. (a) Xxxxx'x employment with the Company shall terminate effective
October 13, 1999. Contemporaneously with the execution of this Separation
Agreement, Xxxxx shall execute the following documents:
(i) Resignation as a member of the Board of
Directors of the Company.
(ii) Resignation as an officer of the Company.
(iii) Resignation as a director of Eastern
Telecommunications Incorporated.
(iv) Resignation as an officer of Eastern
Telecommunications Incorporated.
(v) Resignation as an officer and director of all
other subsidiaries of the Company.
(b) In connection with the termination of Xxxxx'x Employment,
Xxxxx shall receive severance compensation consisting of (i) severance pay in
the amount of one hundred ninety thousand dollars ($190,000.00), ("Lump Sum
Amount"), less all applicable employment withholding tax in an amount not less
than thirty percent (30%) of the Lump Sum Amount. The remaining balance of the
Lump Sum Amount in the approximate amount of one hundred thirty three thousand
dollars ($133,000.00) shall be distributed as follows:
(i) the approximate sum of sixty six thousand five
hundred dollars ($66,500.00) shall be retained by GLD and remitted directly to
the Internal Revenue Service for credit against any unpaid personal or
employment tax obligations, including penalties and interest, for bonuses,
salary or other compensation paid by GLD to Xxxxx in 1997, 1998 and 1999. Such
remittance shall be applied to the oldest outstanding tax obligation.
(ii) the sum of twenty two thousand one hundred
sixty-five dollars ($22,165.00) of the Lump Sum Amount shall be distributed to
Xxxxx contemporaneously with the execution of this Agreement.
(iii) the remaining balance of approximately forty
four thousand three hundred thirty-five dollars ($44,335.00) of the Lump Sum
Amount shall be distributed to Xxxxx when all the conditions set forth below
have been fulfilled:
(a) Xxxxx shall pledge all GLD stock owned
by him as collateral for the payment of any outstanding tax obligation as
described above. Xxxxx shall execute a pledge agreement in the form attached as
Exhibit "A"; and
(b) Xxxxx shall file personal federal income
tax returns for 1997 and 1998. Xxxxx'x personal federal income tax returns shall
be executed by Xxxxx and
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subsequently certified by the tax preparer, who shall forward the returns to the
Internal Revenue Service for filing.
(i) Xxxxx shall cooperate with Company and the
resolution of any claim by the Internal Revenue Service for unpaid taxes as
described above.
(ii) Xxxxx shall indemnify Company against any loss
or damage, including costs and attorney's at any level, in connection with
damages, penalties or interest imposed by the Internal Revenue Service regarding
Xxxxx'x nonpayment of the taxes described above.
(c) In the event that all of the Company's securities or
assets are sold or acquired during the term of this Separation Agreement, then
any payments by the acquirer, or any person or entity on the acquirer's behalf,
paid to Xxxxx or to any person or entity on Xxxxx'x behalf, shall be offset
against the funds paid to and due to Xxxxx under this Separation Agreement. The
application of the offset shall not result in Xxxxx receiving less than the sum
of one hundred ninety thousand dollars ($190,000.00) due Xxxxx under this
Separation Agreement. As an example, in the event the acquirer is to pay Xxxxx
in excess of one hundred ninety thousand dollars ($190,000.00), Xxxxx shall
direct the acquirer to pay the sum of one hundred ninety thousand dollars
($190,000.00) to the Company. In the event the acquirer is to pay Xxxxx less
than one hundred ninety thousand dollars ($190,000.00), then Xxxxx shall direct
the acquirer to pay the entire sum it is to pay Xxxxx to the Company. Xxxxx
agrees to execute any documents necessary to facilitate the acquirers payment of
any such funds to the Company.
(d) GLD shall provide to Xxxxx, for the twenty-four (24) month
period following the date of the execution of this Severance Agreement by all
parties, health insurance substantially similar to those insurance benefits
which Xxxxx is receiving, immediately prior to the date of execution of this
Severance Agreement by all parties. Notwithstanding the foregoing, the health
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insurance provided pursuant to this paragraph shall immediately cease in the
event GLD ceases doing business.
(e) GLD shall pay the September and October, 1999, monthly
installments of nine hundred ninety-eight and 54/100 dollars ($998.54)
representing lease payments on Xxxxx'x lease with Lexus Financial Services,
Account No. 04064282148. GLD shall thereafter pay ten (10) months of the monthly
installments of approximately six hundred ($600.00) dollars representing lease
payments on Xxxxx'x newly-leased automobile. All payments made by GLD pursuant
to this paragraph shall be paid directly to the automobile lessor under their
lease with Xxxxx.
2. At the sole discretion of GLD, it may offer Xxxxx specific
consulting assignments at the rate of two hundred fifty dollars ($250.00) per
hour. All such assignments accepted by Xxxxx shall be performed by Xxxxx within
a reasonable amount of time. Such assignments will consist of duties
commensurate with those duties you have customarily discharged during your term
of employment. All assigned work shall be preapproved by GLD, and GLD shall have
the right to place a limitation on the total number of hours with respect to a
specific assignment. GLD is not required to assign any work to Xxxxx pursuant to
this paragraph.
3. Xxxxx waives any and all rights under the Employment Agreement and
acknowledges that this Separation Agreement is the sole repository of the terms
and conditions of Xxxxx'x Separation from employment by GLD.
4. Xxxxx hereby ratifies and confirms all of the terms and conditions
of P. 8 Non-competition of the Employment Agreement and acknowledges that the
terms of such paragraph are incorporated herein by reference and made a part
hereof. The term of the Non-competition shall be extended until the expiration
of thirteen (13) months from the date Company pays the last installment of
severance pay to Xxxxx.
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5. (a) Xxxxx shall keep confidential all proprietary and other
information concerning the Company and its business, including but not limited
to information concerning the Company's customers, vendors and others with whom
it transacts business, its methods of operation and other trade secrets, its
future plans and strategies, and any financial information concerning the
Company (collectively, "Confidential Information"). Xxxxx agrees that all
Confidential Information is the exclusive property of the Company and that Xxxxx
will not remove the originals or make copies of any Confidential Information
without the Company's prior written consent. Xxxxx shall not use Confidential
Information for any purposes other than to carry out his obligations under this
Agreement and will not divulge Confidential Information to any other person or
entity during or after the term of this Agreement without the Company's prior
written consent, unless required by law or judicial or other process. The
provisions of this Section 13 shall continue to apply to the parties after this
Agreement is terminated.
(b) Unless Company waives its rights in writing under P. 13
CONFIDENTIALITY of the Employment Agreement, Xxxxx shall assert the existence of
the confidentiality provision of the Employment Agreement and shall not testify
until ordered to do so by a court or tribunal of competent jurisdiction.
6. (a) (i) In consideration of the payments and other undertakings
provided for herein, the sufficiency of which is hereby acknowledged, Xxxxx does
hereby fully, finally and unconditionally release and forever discharge, for
himself, his personal representatives, successors, heirs and assigns, the
Company and its affiliates and their respective employee welfare benefit plans,
fiduciaries, trustees, officers, directors, employees and agents from and waives
any and all claims Xxxxx had, now has, or may have against any of them, whether
known or unknown, arising from his employment, his separation from employment,
or otherwise, under any local, state or federal statute,
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ordinance or law, or under the common law of the United States or any of the
states thereof, concerning any matter or thing whatsoever, which arose from the
beginning of time up to and including the date on which this Agreement is fully
executed.
(ii) For two years after the date all parties have executed
this Separation Agreement, the Company shall maintain its director and officer
insurance policy with benefits at least equal to the benefits provided under the
Company's present director and officer policy, American International Union Fire
Insurance Company of Pitts., P.A., policy number 000-00-00 (Directors' and
Officers' Policy). For the three year period following the expiration of the
initial two year period, so long as it is commercially reasonable, the Company
shall use its best efforts to maintain director and officer insurance coverage
with benefits at least equal to the benefits provided under the Directors' and
Officers' Policy.
(b) In consideration of the payments and other undertakings
provided for herein, the sufficiency of which is hereby acknowledged, Company
does hereby fully, finally and unconditionally release and forever discharge
Xxxxx from and waives any and all claims Company had, now has, or may have
against him, whether known or unknown, arising from his employment, his
separation from employment, or otherwise, under any local, state or federal
statute, ordinance or law, or under the common law of the United States or any
of the states thereof, concerning any matter or thing whatsoever, which arose
from the beginning of time up to and including the date on which this Agreement
is fully executed.
7. In the event of any dispute between the parties hereto arising out
of or relating to this Agreement, such dispute shall be settled by arbitration
in Fort Lauderdale, Florida, in accordance with the commercial arbitration rules
then in effect of the American Arbitration Association, except that there shall
be one arbitrator selected with respect to any such arbitration proceeding.
Judgment
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upon the award rendered may be entered in any court having jurisdiction thereof.
Notwithstanding anything to the contrary, if any dispute arises between the
parties under P. 2 of this Separation Agreement, the Company shall not be
required to arbitrate such dispute or claim, but shall the right to institute
judicial proceedings either at law or equity, in any court of competent
jurisdiction with respect to such dispute or claim. If such judicial proceedings
are instituted, the parties agree that such proceedings shall not be stayed or
delayed pending the outcome of any arbitration proceedings hereunder.
8. Any notice or other communication required or permitted under this
Agreement shall be effective only if it is in writing and delivered personally
or sent by registered or certified mail, postage prepaid, addressed as follows:
If to the Company: Xxxxx Xxxxx, Executive Vice President
Group Long Distance, Inc.
0000 Xxxx Xxxxxxx Xxxxx Xxxx
Xxxxx 000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
with copy to: Xxxxxx X. Xxxxx, Esq.
Brinkley, McNerney, Xxxxxx, Xxxxxxx & Xxxxx, LLP
000 Xxxx Xxx Xxxx Xxxxxxxxx
Xxxxx 0000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
If to Xxxxx: Xxxxxx X. Xxxxx, Xx.
0000 XX 000xx Xxxxx
Xxxxx Xxxxxxx, XX 00000
or to such other address as either party may designate by notice to the other,
and shall be deemed to have been given upon receipt.
9. This Agreement constitutes the entire agreement between the parties
hereto with respect to Xxxxx'x employment with, and separation from, the
Company, and supersedes and is in
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full substitution for any and all prior understandings or agreements with
respect to Xxxxx'x employment with the Company.
10. This Agreement may be amended only by an instrument in writing
signed by the parties hereto, and any provision hereof may be waived only by an
instrument in writing signed by the party or parties against whom or which
enforcement of such waiver is sought. The failure of either party hereto at any
time to require the performance by the other party hereto of any provision
hereof shall in no way affect the full right to require such performance at any
time thereafter, nor shall the waiver by either party hereto of a breach of any
provision hereof be taken or held to be a waiver of any succeeding breach of
such provision or a waiver of the provision itself or a waiver of any other
provision of this Agreement.
11. This Agreement is binding on and is for the benefit of the parties
hereto and their respective successors, heirs, executors, administrators and
other legal representatives. Neither this Agreement nor any right or obligation
hereunder may be assigned by the Company (except to an affiliate) or by Xxxxx.
12. This Agreement shall be governed by and construed in accordance
with the laws of the State of Florida (without giving effect to its choice of
law principles).
13. This Agreement may be executed in counterparts, each of which shall
be deemed an original, but all of which shall constitute one and the same
instrument.
14. In the event of any dispute between the parties arising from this
Separation Agreement, the prevailing party shall be entitled to its costs and
reasonable attorney's fees, including all appellate levels.
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IN WITNESS WHEREOF, the Company and Xxxxx have executed this Agreement
as of the date first written above.
GROUP LONG DISTANCE, INC.
/s/ Xxxxxx X. Xxxxx, Xx. By: /s/ Xxxxx X. Xxxxx
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XXXXXX X. XXXXX, XX.
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