EXHIBIT 10.12
CONFIDENTIAL TERMINATION AND RELEASE AGREEMENT
This Confidential Termination and Release Agreement (this
"Agreement"), dated as of November 17, 1997, is entered into by and between
Centennial Communications Corp. d/b/a SMR Direct., a Delaware corporation (the
"Company"), and Xxxx X. Xxxxxx ("Officer").
RECITALS
A. Officer has been the President and a director of the Company.
B. Officer and the Company desire to terminate Officer's employment as
President of the Company, to terminate Officer's position as a director on the
board of directors of the Company and on the boards of directors of each of the
Company's subsidiaries, to terminate the Agreement Regarding Employment
Termination dated May 16, 1997 between them, and to settle fully and finally all
claims.
In consideration of the mutual covenants and agreements set forth in
this Agreement, the parties agree as follows:
TERMS AND CONDITIONS
1. Termination of Officer. Officer hereby resigns as President of the Company
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effective as of the date of this Agreement.
2. Termination of Board Positions. Officer hereby resigns as a director of the
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Company, and as a director of each of the Company's subsidiaries, including but
not limited to the following: SMR Direct USA, Inc., SMR Direct Cayman Corp.,
Centennial Cayman Corp., SMR Direct Peru, S.R.L, Pompano, S.R.L., Brunacci
Compania Ltda., Telecom Supply S.R.L., C-Comunica S.A., Radioservicios Moviles,
S.A., Transnet del Peru, S.A., and Fastcom, S.A.
3. Termination of Agreement Regarding Employment Termination. Officer and the
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Company hereby agree that the Agreement Regarding Employment Termination between
Officer and the Company dated May 16, 1997 shall be terminated in its entirety,
and shall have no further force or effect.
4. Compensation. In consideration for the continued non-exclusive employment
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of Officer provided for in Paragraph 6, the release by Officer contained in
Paragraph 9 and the other covenants of Officer contained in this Agreement, the
Company shall (i) continue to pay to Officer a monthly salary of $16,667 during
the Employment Period (as defined below) on the same day and/or the same terms
as Officer received his salary prior to entering into this Agreement; (ii)
reimburse Officer for up to $1500 of Officer's expenses incurred in connection
with a trade show in Cancun, Mexico that Officer intended to attend, which
amount shall be paid promptly upon receipt by the Company of written receipts
confirming payment by Officer of such expenses; (iii) pay Officer one month's
vacation pay, or $16,667, upon execution of this Agreement; and (iv)
continue to pay the Company's portion of Officer's medical insurance under the
Company's medical insurance plan as such medical insurance plan exists from time
to time, for a period of the earlier of (a) three years following the date of
this Agreement, or (b) one year following the commencement of Officer's
employment with a company that makes medical insurance available to its
employees or members. Moreover, the Company hereby agrees that 80% of Officer's
currently unvested stock options ("Unvested Stock Options") granted pursuant to
the Company's 1996 Stock Option Plan adopted January 12, 1996, shall vest as of
the date of this Agreement, starting with the Unvested Stock Options that have
the lowest exercise price. The remaining 20% of the Unvested Stock Options shall
remain unvested, and shall not vest pursuant to the vesting provision contained
in the Incentive Stock Option Agreements between the Company and Officer dated
February 1, 1996, February 1, 1996, July 8, 1996 and February 21, 1997.
Notwithstanding any provision to the contrary in Officer's Incentive Stock
Option Agreements, all of Officer's vested stock options shall remain
outstanding until the earlier of (i) six months following the date of an initial
public offering of the Company; or (ii) ten years from the date of grant.
5. Withholding. Officer authorizes the Company to withhold, in accordance
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with applicable law, from the compensation specified in Paragraph 4, any taxes
required to be withheld by any federal, state or local law or regulation arising
out of such compensation.
6. Employment Services. From the date of this Agreement until six months after
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the date of this Agreement (the "Termination Date", and such six-month period,
the "Employment Period"), Officer agrees to render services to the Company as an
employee of the Company. These services shall include negotiation of and other
assistance on any corporate development projects currently being pursued by the
Company as described on Exhibit A hereto (the "Corporate Development Projects"),
and advising the Company on strategic matters. Such services shall be rendered
upon reasonable notice during normal business hours, from time to time, when and
as requested by the CEO of the Company; provided, however, that Officer shall
not be required to devote more than 33% of his business time to the Company
during the Employment Period.
7. Noncompetition, Nonsolicitation and Confidentiality Covenants.
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(a) Officer acknowledges that he possesses proprietary and trade secret
information concerning the Company and the Corporate Development Projects.
Officer further acknowledges the highly competitive nature of the Company's
business. Officer further acknowledges that the restrictions contained in this
Noncompetition Covenant are reasonable and necessary for the protection of the
immediate interests of the Company, that the Company would not have entered into
this Agreement but for the inclusion herein of this Noncompetition Covenant, and
that any violation of this covenant would cause substantial injury to the
Company. Officer further acknowledges that this Noncompetition Covenant is
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intended to protect the legitimate business interests of the Company and not to
prevent or interfere with Officer's ability to conduct business.
(b) During the Employment Period, Officer shall not directly or indirectly
own, manage, control, participate in, consult with, render services for, or in
any manner engage in any business or activity which is involved in a Corporate
Development Project as per Exhibit A, other than on behalf of the Company
pursuant to Officer's employment with the Company as set forth in Paragraph 6.
For an additional period of six months following the Employment Period, Officer
may become so involved in a Corporate Development Project as per Exhibit A,
other than on behalf of the Company, provided that Officer must provide three
months advance written notice to the Company of such intended involvement.
Following this additional six month period, no such limitation on the
involvement of Officer in Corporate Development Projects shall apply.
(c) In furtherance of the foregoing and not in limitation thereof, during
the Employment Period and for a period of one year following the Employment
Period, Officer shall not, directly or indirectly, (i) induce or attempt to
induce any employee of the Company or an Affiliate of the Company (as defined
below) to leave the employ of the Company or such Affiliate, or in any way
interfere with the relationship between the Company or any Affiliate any
employee thereof, or (ii) induce or attempt to induce any customer, supplier,
licensee or other business relation of the Company or any Affiliate to cease
doing business with the Company or such Affiliate, or in any way interfere with
the relationship between any such customer, supplier, licensee or business
relation and the Company or any Affiliate.
(d) For a period of one year commencing on the date of this Agreement,
Officer shall keep in strictest confidence and trust all Proprietary Information
(as defined below), and shall not use or disclose any Proprietary Information
without the written consent of the Company, except as may be necessary in the
ordinary course of performing his duties as an employee of the Company.
Moreover, at the conclusion of the Employment Period, Officer shall deliver to
the Company all documents, notes, drawings, blueprints, computer programs, data,
security card keys and similar devices, and other materials of any nature
pertaining to any Proprietary Information or to Officer's work with the Company,
and Officer shall not take any of the foregoing, or any reproduction of any of
the foregoing, that is embodied in a tangible medium of expression. The term
"Proprietary Information" includes, without limitation, discoveries,
developments, designs, improvements, inventions, blueprints, processes, computer
programs, know-how, data, marketing and business plans and outlines, budgets,
projections, unpublished financial statements, costs, fee schedules, client and
supplier lists, client and prospective client databases, and access codes and
similar security information and procedures; provided, however, that the term
"Proprietary Information" shall not include any of the foregoing which is in the
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public domain other than as the result of a breach of Officer's obligations
under this Paragraph 7(d).
(e) If, at the time of enforcement of this Paragraph 7, a court shall hold
that the duration, scope or area restrictions stated herein are unreasonable
under circumstances then existing, the parties agree that the maximum duration,
scope or area reasonable under such circumstances shall be substituted for the
stated duration, scope or area.
(f) In the event of the breach or a threatened breach by Officer of any of
the provisions of this Paragraph 7, the Company, in addition and supplementary
to other rights and remedies existing in its favor, may apply to any court of
law or equity of competent jurisdiction for specific performance and/or
injunctive or other relief in order to enforce or prevent any violations of the
provisions hereof.
8. Right of First Refusal. During the Employment Period, Officer shall provide
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written notice to the Company of any acquisition, joint venture or investment
opportunity Officer intends to market involving wireless communications.
Officer's notification shall set forth all relevant details and information
about the business opportunity necessary for the Company to evaluate such
opportunity. The Company shall have the option, but not the obligation, to
pursue the business opportunity itself. Notification of the Company's intention
to pursue the business opportunity in the form of a negotiated and signed Letter
of Intent shall be given to Officer within 45 days of the Company's receipt of
Officer's notification concerning the project. If the Company elects not to
pursue the business opportunity, or fails to give Officer notice of such
intention within 45 days of the Company's receipt of Officer's notification, the
Company's right of first refusal set forth in this Paragraph 8 shall expire.
9. Release.
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(a) As a material inducement to the Company to enter into this Agreement,
Officer hereby irrevocably and unconditionally releases, acquits and forever
discharges the Company, each of the Company's owners, stockholders,
predecessors, successors, assigns, agents, directors, officers, employees,
representatives, attorneys, divisions, and persons controlling, controlled by or
under common control with the Company ("Affiliates") (and present or former
agents, directors, officers, employees, representatives and attorneys of such
divisions and Affiliates) acting by, through or in concert with the Company and
all other persons acting by, through, or in concert with any of them
(collectively "Releasees") and each of them, from any and all charges,
complaints, claims, demands and liabilities whatsoever of every name and nature
(including attorney's fees and costs actually incurred), known or unknown,
existing or that may hereafter exist, and any and all causes of action which
could have been asserted by claim, counter claim or otherwise, against any of
the Releasees pertaining to the business and affairs of the Company, Officer's
employment with the Company or
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the termination thereof, the relationships between Officer and any of the
Releasees or any other act of omission which has previously transpired up to the
date of execution of this Agreement. The claims released by this Paragraph 9(a)
include but are not limited to any claims under Title VII of the Civil Rights
Act of 1964, the Federal Age Discrimination in Employment Act, 29 U.S.C. (S)
621, et seq. ("ADEA"), or any other statute or law prohibiting discrimination in
employment on the basis of age, race, religion, disability, gender or national
origin or other status ("Claim" or "Claims").
(b) As a material inducement to Officer to enter into this Agreement, the
Company, on behalf of itself and its subsidiaries described in Paragraph 2,
hereby irrevocably and unconditionally releases, acquits and forever discharges
Officer from any and all charges, complaints, claims, demands and liabilities
whatsoever of every name and nature (including attorney's fees and costs
actually incurred), known or unknown, existing or that may hereafter exist, and
any and all causes of action which could have been asserted by claim,
counterclaim or otherwise, pertaining to the business and affairs of the
Company, Officer's employment with the Company or the termination thereof, the
relationships between Officer and any of the Releasees, or any other act of
omission which has previously transpired up to the date of execution of this
Agreement ("Company Claim").
10. Representation Regarding No Complaints or Charges and Covenant Not to Xxx.
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Officer and the Company, each, represents to the other that it has not filed any
complaints or charges against any of the Releasees or Officer, respectively,
with any local, state or federal agency or court. Officer and the Company,
each, further represents, agrees and covenants to the other that it will not
file any such complaints or charges against any of the Releasees or Officer,
respectively, with any local, state or federal agency or court at any time
hereafter with respect to any Claim or Company Claim, as the case may be. If
any complaint or charge against the Company is filed on behalf of Officer,
Officer agrees to take all reasonable steps necessary to effectuate the
withdrawal of such complaint or charge. In the event that any local, state or
federal agency or court undertakes any proceeding relating to Officer's
employment by the Company or the circumstances of his leaving the Company's
employ, Officer hereby waives any right he may have to recover any damages or
any remedy of whatever nature, as a result of any such proceeding.
11. Ownership of Claims. Officer represents and agrees that he has not
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previously assigned or transferred, or purported to have assigned or
transferred, to any person whomsoever, any claim or portion thereof or interest
therein against any of the Releasees. Officer agrees to indemnify, defend and
hold harmless each and all of the Releasees against any and all claims based on,
arising out of, or in connection with any such transfer or assignment, or
purported transfer or assignment, of any claims or any portion thereof or
interest therein. The Company represents and agrees that it has not, and to the
best of its knowledge no other Releasee has, previously assigned or transferred,
or purported to have assigned or transferred, to any person whomsoever, any
claim or
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portion thereof or interest therein, and the Company agrees to indemnify, defend
and hold harmless Officer against any and all claims based on, arising out of,
or in connection with any such transfer or assignment, or purported transfer or
assignment, of any claims or any portion thereof or interest therein.
12. No Admission of Liability. Officer and the Company each acknowledge that
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neither the execution of this Agreement nor the performance of its terms shall
constitute an admission by the Company or Officer of any wrongful acts
whatsoever against any other party or any other person, and the Company and
Officer each specifically disclaim any liability to any other party or any other
person.
13. Future Assistance. Except as otherwise required by law, Officer agrees
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that he will not disclose or cause to be disclosed any negative, adverse or
derogatory comments or information about the Company and its Affiliates or its
management or about the Company's and its Affiliates' prospects for the future,
to any person or entity, including, but not limited to, any current, former, or
prospective employee or investor in the Company or any of its Affiliates.
Except as otherwise required by law, the Company agrees that it will not
disclose or cause to be disclosed any negative, adverse or derogatory comments
or information about Officer to any person or entity, including any prospective
employer of Officer. Officer agrees that after the Employment Period has ended,
the Company may continue to seek his assistance or cooperation in connection
with matters within his knowledge and related to his positions with the Company
and its Affiliates, including but not limited to cooperating fully with respect
to the defense or prosecution of any litigation. The Company shall reimburse
Officer for his reasonable expenses incurred in the rendering of such
assistance.
14. Competitive Investment or Participation. If, during the Employment Period,
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Officer makes any direct or indirect investment in a non-U.S. wireless
communication project or venture, Officer shall provide immediate written notice
of such act to the Company. The Company then shall have the option, at its sole
discretion, to cease paying to Officer the monthly salary described in Paragraph
4 hereof. If the Company elects to cease making such monthly payments, the
noncompetition covenant set forth in Paragraph 7(b) hereof shall terminate, and
the 45 day right of first refusal period set forth in Paragraph 8 hereof shall
be shortened to 30 days.
15. Complete Agreement. This Agreement and Exhibit A attached hereto embody
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the complete agreement and understanding between the parties and supersede and
preempt any prior understandings, agreements or representations by or between
the parties, written or oral, which may have related to the subject matter of
this Agreement in any way. Officer represents and agrees that he has been
informed by the Company that he has the right to discuss all aspects of this
Agreement with his own attorney, that he has availed himself of that right to
the fullest extent that he wishes to do so, that he has carefully read and fully
understands all of the provisions of this Agreement, and that he is voluntarily
entering into this Agreement. The Company and Officer each further represent
and agree that, with respect to the matters set forth in this Agreement,
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none of them can rely on any statements or representations other than those set
forth in this Agreement.
16. Revocation. Officer acknowledges that he is knowingly and voluntarily
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waiving and releasing any rights he may have under the ADEA. He also
acknowledges that the consideration given for the release in Paragraph 9 hereof
is in addition to anything of value to which he was already entitled. He
further acknowledges that he has been advised by this writing, as required by
the ADEA, that: (a) his waiver and release do not apply to any rights or claims
that may arise after the execution date of this Agreement; (b) he has 21 days to
consider this Agreement (although he may choose to voluntarily execute this
Agreement earlier); (c) he has seven days following the execution of this
Agreement by the parties to revoke the Agreement. Notice of revocation,
together with all amounts paid to Officer pursuant to Paragraph 2 of this
Agreement, should be sent to the Company in accordance with Paragraph 22.
17. Confidentiality. Officer and the Company agree that they will keep the
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facts associated with this matter, and the terms of this Agreement strictly
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confidential; provided, however, that Officer may disclose such matters to
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members of his immediate family, his attorneys, his tax advisors, or as may be
required by law. Further, it is expressly understood and agreed that this
confidentiality provision is an essential provision of this Agreement.
18. Counterparts. This Agreement may be executed on separate counterparts,
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each of which is deemed to be an original and all of which taken together
constitute one and the same Agreement.
19. Successors and Assigns. This Agreement is intended to bind and inure to
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the benefit of and be enforceable by Officer and the Company and their
respective successors and assigns; provided that in no event may Officer's
obligation under this Agreement be delegated or transferred by Officer.
20. Choice of Law. All questions concerning the construction, validity and
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interpretation of this Agreement will be governed by the internal law, and not
the law of conflicts, of the State of Colorado.
21. Modifications and Waivers. No provision of this Agreement may be modified,
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altered or amended except by an instrument in writing executed by each of the
parties to this Agreement. No waiver by any party to this Agreement of any
breach by another party to this Agreement of any term or provision of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar terms or provisions at the time or at any prior or
subsequent time.
22. Notices. Any notice provided for in this Agreement shall be in writing and
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shall be either personally delivered, or mailed first class mail (postage
prepaid) or sent by reputable overnight courier service (charges prepaid) at the
respective addresses set forth below or at such address or to the attention of
such other person as the recipient
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party has specified by prior written notice to the sending party. Notices will
be deemed to have been given hereunder when delivered personally, three days
after deposit in the U.S. mail and one day after deposit with a reputable
overnight courier service. The Company's address is:
Centennial Communications Corp. d/b/a SMR Direct
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Facsimile: 000-000-0000
Officer's address is:
Xxxx X. Xxxxxx
000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile:
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
CENTENNIAL COMMUNICATIONS CORP.
d/b/a SMR DIRECT
By: /s/ Xxxxxxx X. Xxxxxx
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Title: CEO
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/s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
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