Exhibit 99.1
SEPARATION AGREEMENT
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This Separation Agreement ("Agreement") is entered into by and between Xxxxxx X.
Xxxxxx, an individual resident in the State of California ("BURGER"), and
SureWest Communications, a California corporation ("SWC").
AGREEMENT
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In consideration of the mutual covenants and conditions contained herein, the
parties agree as follows:
A. Termination of Employment. BURGER'S employment with SWC will terminate
with his resignation effective October 8, 2005 (the "Termination
Date"). BURGER's separation shall be characterized by the parties to
this Agreement as "a resignation" resulting from the completion of a
management reorganization. All inquiries about BURGER's employment at
SWC shall be referred only to Xxxxx Xxxxx or to his successors in the
office.
B. Supplemental Severance Benefits. In consideration for entering into
this Agreement, SWC shall pay BURGER the amount of $92,500, less
applicable withholding. This particular lump sum payment is not
eligible for 401(k) benefits and is not considered pensionable
earnings. SWC will send BURGER a check for the Supplemental Severance
Benefit, net of applicable withholding, payable to BURGER, dispatched
by Federal Express or another comparable overnight delivery service,
following the seven day revocation period, as set forth in Paragraph O,
herein. In addition, SWC shall pay on BURGER's behalf, the amount of
any COBRA payments for coverage for BURGER for the months of November
2005 through April 2006 inclusive.
C. Equity Vesting. In addition to other interests previously vested under
the 1999 Restricted Stock Bonus Plan or 2000 Equity Incentive Plan, and
assuming that this Agreement is not revoked pursuant to Paragraph O,
BURGER's awards under the 2000 Equity Incentive Plan granted January
29, 2003, December 10, 2003, and February 23, 2005, shall be subject to
accelerated vesting as if BURGER were employed by SWC through April 8,
2006, resulting in the vesting as of the Termination Date of (A) the
625 shares under the award dated January 29, 2003, (B) an additional
641 shares under the award dated December 10, 2003, and (C) an
additional 552 units under the award dated February 23, 2005.
D. No Other Payments. BURGER agrees that as of the date of his execution
of this Agreement, SWC has fully discharged any and all obligations it
may have to BURGER, and that SWC has paid him all sums which he is
owed, excepting only the Supplemental Severance Benefits described in
Paragraph B of this Agreement, and any vested pension or KSOP benefits
that BURGER may have as of his Termination Date. BURGER acknowledges
that he was paid all wages, benefits, and accrued vacation pay that
were due and owing him, if any, on or about the date of the termination
of his employment with SWC, and that he is not entitled to any other
compensation or benefits as a result of his prior employment or his
termination, other than as expressly provided herein, except for any
vested pension or KSOP benefits that BURGER may have as of the
Termination Date.
E. Continuing Obligations of BURGER. BURGER will comply with SWC's
policies and agreements regarding confidential and trade secret
information following the termination of his employment. BURGER will
not use or disclose any confidential business information or trade
secrets of SWC or any of SureWest Communications' subsidiaries at any
time. On or before the Termination Date, BURGER will promptly return to
SWC, all SWC property in his possession or under his control, including
but not limited to, company car, keys, credit cards, communications
cards, equipment, company documents (including all copies), and
computer files, discs and tapes (including all copies). BURGER further
agrees to turn over to SWC all computer and communications passwords.
F. Complete Release by BURGER. In consideration for entering into this
Agreement and the promises and covenants contained herein, but
excluding claims arising under this Agreement, BURGER, on behalf of
himself, and his heirs, successors and assigns, family members,
partners, and attorneys, (collectively, the "Releasors"), hereby
releases and forever discharges SWC and its predecessors, successors,
heirs, assigns, employees, shareholders, officers, directors, agents,
attorneys, parent corporations, subsidiaries, divisions or affiliated
corporations or organizations, (collectively "Released Parties"), from
any and all claims, demands, causes of action, charges of any kind
whatsoever including, by way of example only and without limitation,
any claims of discrimination under Title VII of the Civil Rights Act of
1964 or any other similar law or statute, the Age Discrimination in
Employment Act, California Fair Employment and Housing Act, any claims
under the California Labor Code, any claims of Wrongful Termination,
Breach of Contract, any claim of personal injury, or any other claim
for injunctive relief, damages, attorney's fees, costs or liability of
any nature whatsoever, whether or not now known, suspected, or claimed,
which the Releasors ever had, now have, or may in the future claim to
have against SWC based upon any fact or circumstance occurring from the
beginning of time to the present. This release specifically includes,
without limitation, claims arising out of the termination of BURGER's
employment.
G. General Nature of Release. The Release set forth above in this
Agreement is a general release of all claims, demands, causes of
action, obligations, damages, and liabilities of any nature whatsoever
that are described in the Release and is intended to encompass all
known and unknown, foreseen and unforeseen claims which BURGER may have
against SWC, or any of the Released Parties, except for any claimed
breach of the terms of this Agreement.
H. Waiver. BURGER expressly acknowledges that this release is intended to
include in its effect, without limitation, a full and final release of
all unknown, undisclosed or unanticipated claims or damages based upon
any fact or circumstance occurring prior to the date of execution of
this release. Therefore, BURGER hereby waives any and all rights or
benefits which he may now, or in the future, have under the terms of
Section 1542 of the California Civil Code (or any law or rule of
similar effect).
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Section 1542 provides as follows:
"A General Release does not extend to claims which a creditor
does not know or suspect to exist in his favor at the time of
executing the release, which, if known by him, must have
materially affected his settlement with the debtor."
I. No Other Claims. BURGER represents that he has not filed any complaints
or charges against any of the Released Parties with any local, state,
or federal agency, entity or court, that he will not do so at any time
hereafter; and that if any such agency, entity or court assumes
jurisdiction of any complaint or charge against any of the Released
Parties on behalf of BURGER, whenever filed, he will request such
agency or court to withdraw from the matter.
J. Non-Admission of Wrongdoing or Liability. This Agreement shall not in
any way be construed as an admission by SWC that it has acted
wrongfully with respect to BURGER or that BURGER has any rights or
claims whatsoever against SWC or any SWC subsidiaries, and SWC
specifically disclaims any liability to or wrongful acts against BURGER
on the part of SWC or any SWC subsidiaries, employees, officers,
directors, shareholders, or agents.
K. Non-Disparagement. BURGER agrees that he will not at any time hereafter
take any actions or make any negative statements, either verbal or
written to anyone, including without limitation, any electronic or
print news media or other publications, or any community organizations,
which would adversely affect or disparage the reputation, image, good
will or commercial interest of SWC, or its employees or agents. BURGER
further agrees that he will not cause or encourage any private lawsuits
to be maintained or instituted against SWC, or any of the other
released parties, and he will not assist any individual in the
preparation or filing of, nor otherwise participate in any manner in,
any such private legal proceedings against SWC, or any of the other
released parties, except where required by law.
L. No Action to be Brought or Assisted. BURGER covenants and agrees never
to commence, aid in any way, prosecute or cause to be commenced or
prosecuted any actions or other proceeding based upon any claims,
demands, causes of action, obligations, damages or liabilities which
are the subject of this Agreement, or to assist others in the
prosecution of any claims or actions against any of the Released
Parties except where required by law. BURGER agrees to indemnify and to
hold the Released Parties harmless from and against any and all claims,
including court costs and attorneys' fees, arising from or in
connection with any action or proceeding brought, assisted, or
prosecuted contrary to the provisions of this Agreement except where
required by law.
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M. Non-Assignment of Claim. BURGER warrants that he has made no assignment
and will make no assignment of any claim, chose in action, right of
action, or any right of any kind whatsoever, embodied in this
Agreement, and that no other person or entity of any kind had or has
any interest in any of the demands, obligations, actions, causes of
action, debts, liabilities, rights, contracts, damages, attorney's
fees, costs, expenses, losses or claims referred to herein.
N. Severability. The parties agree that should any provision of this
Agreement be declared or determined by any court to be illegal,
invalid, or unenforceable, the remainder of the Agreement shall
nonetheless remain binding in effect.
O. ADEA Release. BURGER acknowledges that he is waiving and releasing any
rights he may have under the Age Discrimination in Employment Act of
1967 ("ADEA") and that this waiver and release is knowing and
voluntary. BURGER also acknowledges he has been advised by this
writing:
(a) that he should consult an attorney prior to executing
this Agreement;
(b) that he has twenty-one (21) days within which to
consider this Agreement;
(c) that he has seven (7) days following the date of his
execution of this Agreement to revoke the Agreement
(the "Revocation Period") by providing SWC with
written notice of such revocation;
(d) that this entire Agreement shall be null and void if
revoked by him within said seven-day revocation
period; and
(e) that this Agreement shall not be effective, and the
Supplemental Severance Benefit referenced in
Paragraph B above, shall not be due and payable until
the eighth day after he signs this Agreement (the
"Effective Date"), in the event there is no
revocation.
P. Health Insurance/Retirement Benefits. BURGER acknowledges that he
received by separate cover information regarding his right to health
insurance continuation (a portion of which shall be paid by SWC
pursuant to Paragraph B of this Agreement) and his retirement benefits,
if any. To the extent that BURGER has or had such rights, nothing in
this Agreement will impair those rights.
Q. SWC Acknowledgements and Further Agreements. SWC acknowledges and
agrees that BURGER retains (to the extent of his participation) all
rights and obligations of a SWC employee participant who has resigned
his or her employment, under each of SWC's benefit plans including,
without limitation, the SureWest Communications Pension Plan, SureWest
KSOP and the SureWest Communications 2000 Equity Incentive Plan. BURGER
acknowledges that all options issued under the 2000 Equity Incentive
Plan lapse ninety (90) days after the Termination Date. SWC further
acknowledges and agrees that it shall not take any action (other than
actions applicable to all directors and officers) to deny BURGER the
full benefits of the provisions of (i) SWC's Bylaws relating to the
indemnification of directors and officers, or (ii) any policy of
director's and officer's insurance providing coverage to SWC's
directors and officers.
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R. Entire Agreement. This Agreement constitutes the full and complete
agreement between the parties hereto, and fully supersedes any and all
prior agreements, or understandings between the parties hereto,
pertaining to the subject matter hereof. No other promises or agreement
shall be binding unless signed by the parties.
S. Governing Law. This Agreement is made and entered into in the State of
California and shall in all respects be interpreted, enforced and
governed under the laws of said State.
T. Knowing and Voluntary Agreement. This Agreement in all respects has
been voluntarily and knowingly executed by the parties hereto. BURGER
specifically represents that he has been given an opportunity to
consult with counsel and that, to the extent desired, he has consulted
with any attorney of his choosing regarding the terms and conditions of
this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Separation Agreement on
the date(s) set forth hereinafter.
SUREWEST COMMUNICATIONS,
a California corporation
/s/ Xxxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxx
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XXXXXX X. XXXXXX Xxxxx X. Xxxxx
President and CEO
Date: October 6, 2005 Date: October 6, 2005
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