EXHIBIT 10.88
SEVERANCE AND CONSULTING AGREEMENT
This SEVERANCE AND CONSULTING AGREEMENT is made as of January 10, 2001
("Agreement") by and between STAR TELECOMMUNICATIONS, INC. ("STAR"), a
corporation, and Xxxxxxxxxxx X. Xxxxxxxx ("Xx. Xxxxxxxx"), an individual, with
reference to the following: RECITALS:
A. Xx. Xxxxxxxx has tendered his resignation as Chief Executive Officer
and Chairman of the Board of STAR, effective as of the date of this Agreement.
B. STAR has accepted Xx. Xxxxxxxx'x resignation as of such date.
C. STAR desires to retain Xx. Xxxxxxxx as a consultant to provide
certain consulting services as herein described, and Xx. Xxxxxxxx desires to
provide such services to STAR for the period February 1, 2001 to January 31,
2002.
D. The parties desire to enter into this Agreement to set forth the
obligations and responsibilities of each in connection with their contractual
relationship.
NOW, THEREFORE, in consideration of the foregoing, and of the covenants and
provisions contained in this Agreement, the receipt and sufficiency of which is
hereby acknowledged, STAR and Xx. Xxxxxxxx agree as follows:
1. TERMINATION OF EMPLOYMENT.
a. The parties to this Agreement acknowledge and agree that Xx.
Xxxxxxxx'x employment at STAR terminated as of the date hereof and that, on that
date, STAR paid to Xx. Xxxxxxxx all salary due him as of that date, plus payment
for any earned but unused
vacation. Xx. Xxxxxxxx expressly acknowledges and agrees that, other than his
salary and accrued vacation pay, he is not entitled to further compensation as
of his employment termination on January 10, 2001.
b. Upon termination of his employment at STAR, and by his signature
on this Agreement, as of the date hereof Xx. Xxxxxxxx (i) confirms his
resignation as an officer and a director of STAR, and each of its affiliate
entities, effective January 10, 2001, and (ii) irrevocably appoints STAR as his
attorney in his name and on his behalf to execute any such thing and generally
to use his name for the purpose of giving effect to this resignation.
c. As of the date of this Agreement, Xx. Xxxxxxxx acknowledges that
he delivered to STAR all documents, papers and properties belonging to STAR or
any of its parent, subsidiary or affiliated companies that may have been
prepared by Xx. Xxxxxxxx, or that have come into his possession in the course of
carrying out his obligations to STAR or any of its parent, subsidiary or
affiliated companies, and that he did not retain any copies thereof.
d. Xx. Xxxxxxxx shall be entitled to remove and own all of his
current office furnishings and equipment (including all personal computers,
including laptops, whether at his office or home, and related software, cell
phones and similar items). In addition, STAR acknowledges that Xx. Xxxxxxxx owns
certain artwork, furnishings, vending machines and memorabilia currently on
STAR's premises. Xx. Xxxxxxxx agrees to allow STAR to continue to use such items
provided, however, that Xx. Xxxxxxxx may remove any or all of such items upon 30
days' notice to STAR.
2. SEVERANCE PAYMENT.
Xx. Xxxxxxxx acknowledges and agrees that he is entitled to no further
compensation, payments or benefits from STAR after his employment termination as
of the date
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of this Agreement. Nevertheless, subject to the terms and conditions of this
Agreement, and provided that Xx. Xxxxxxxx does not breach any of the terms of
this Agreement, STAR agrees to issue to Xx. Xxxxxxxx 1,775,354 shares of STAR
common stock, in quarterly installments of 443,839 (the "Share Installments"),
with such installment payments to be made on February 10, 2001, May 10, 2001,
August 10, 2001 and November 10, 2001 (each, an "Installment Date"). STAR agrees
to register the shares of Common Stock subject to the Share Installment payments
described above on the next available registration statement filed by STAR with
the Securities and Exchange Commission (the "SEC") under the Securities Act of
1933, as amended (the "Securities Act"), and to take all steps reasonably
necessary to have such registration statement declared effective by the SEC as
soon as is reasonably practicable following such filing, subject to the
restrictions of the Securities Act and the rules and regulations thereunder, as
interpreted and enforced by the SEC.
3. BENEFITS.
a. CONTINUING INSURANCE PARTICIPATION. In addition to any insurance
continuation rights he may have under COBRA, Xx. Xxxxxxxx and his dependents
will be entitled to continue to participate in the health, life, dental, vision,
disability and other insurance plans of STAR through December 31, 2001, on a
basis consistent with STAR's past practices. STAR shall be responsible for the
payment of any applicable premiums under such plans through December 31, 2001.
b. AUTOMOBILE ALLOWANCE. STAR shall pay to Xx. Xxxxxxxx a monthly
automobile allowance equal to the car lease payments currently paid by STAR on
Xx. Xxxxxxxx'x behalf through December 31, 2001. Additionally, title to the
Chevrolet Suburban
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originally purchased by Xx. Xxxxxxxx but presently held in the name of STAR
shall be transferred back to Xx. Xxxxxxxx in a manner mutually agreeable to the
parties.
c. HANGAR EXPENSES. Hangar and related airplane expenses normally
paid by STAR will continue to be paid by STAR until February 1, 2001.
d. UNREIMBURSED EXPENSES. STAR shall pay to Xx. Xxxxxxxx within a
reasonable time of receipt of request therefor, all unreimbursed employee
expenses incurred by Xx. Xxxxxxxx in connection with his employment by STAR
through January 10, 2001.
4. RELEASES BY THE PARTIES.
a. RELEASE BY XX. XXXXXXXX. In exchange for STAR's payments and
other undertakings as described herein, Xx. Xxxxxxxx, for himself and his heirs,
legal representatives, successors and assigns, does hereby completely release
and forever discharge STAR, its parent, subsidiary and affiliated companies, and
their respective shareholders, officers, directors, representatives, employees,
former employees, agents, attorneys, successors and assigns from all claims,
rights, demands, actions, obligations and causes of action of any and every
kind, nature and character, known or unknown, that Xx. Xxxxxxxx may now have or
has ever had against them, arising from or in any way connected with the
employment relationship between the parties, any actions taken by any of them
during the employment relationship, the termination of that relationship, and
any other dealings of any kind between Xx. Xxxxxxxx and any of them up to the
effective date of this Agreement, including but not limited to (i) any and all
claims of "wrongful discharge," breach of express or implied contract, breach of
the implied covenant of good faith and fair dealing, wrongful discharge in
violation of public policy, intentional infliction of emotional distress,
negligent infliction of emotional distress, fraud and defamation; (ii) any claim
arising at common law including but not limited to any tort of any
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nature; (iii) any and all claims arising under any federal, state, county or
municipal statute, constitution or ordinance, including but not limited to Title
VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Age
Discrimination in Employment Act, the Older Workers Benefit Protection Act, the
Americans with Disabilities Act, the Employee Retirement Income Security Act,
the California Fair Employment and Housing Act, the California Constitution, the
California Labor Code, and any other laws and regulations relating to employment
discrimination; and (iv) any and all claims for compensation, bonuses, severance
pay, vacation pay, expense reimbursement, attorneys' fees and costs.
b. RELEASE BY STAR. In consideration for Xx. Xxxxxxxx'x acceptance
of the terms of this Agreement, STAR, for itself and its parent, subsidiary and
affiliated companies, and their respective shareholders, officers, directors,
representatives, employees, former employees, agents, attorneys, successors and
assigns, does hereby completely release and forever discharge Xx. Xxxxxxxx, his
family, heirs, successors and assigns from all claims, rights, demands, actions,
obligations and causes of action of any and every kind, nature and character,
known or unknown, that STAR may now have or has ever had against them, arising
from or in any way connected with the employment relationship between the
parties, any actions taken by any of them during the employment relationship,
the termination of that relationship, and any other dealings of any kind between
Xx. Xxxxxxxx and any of them up to the effective date of this Agreement.
c. GENERAL RELEASE. It is each party's intention in the execution
of the his or its respective release set forth above, that the same shall be
effective as a bar to each and every claim hereinabove specified, and, in
furtherance of this intention, each party hereby
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expressly waives any and all rights and benefits conferred upon him or it by
Section 1542 of the California Civil Code, which provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE 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.
5. CONFIDENTIALITY AND NON-DISPARAGEMENT.
Absent prior express written approval and permission of STAR, which
may be withheld in the sole discretion of STAR, Xx. Xxxxxxxx will keep
confidential and not directly or indirectly make public or reveal to any person,
firm, corporation, association, partnership or entity of any identity or kind
whatsoever, including, without limitation, any current, former or future
employee of STAR or any of its affiliated, subsidiary or parent companies, any
information regarding the terms or existence of this Agreement, including,
without limitation, the fact of payment or the amount of payment (or any
information arising out of the fact of or amount of payment) Xx. Xxxxxxxx is
receiving under it.
This confidentiality provision shall not apply to Xx. Xxxxxxxx
providing any information regarding the terms or existence of this Agreement to
his spouse, to his attorneys, or to his accountants, tax consultants or the duly
designated taxing authorities of the United States of America or the State of
California, but Xx. Xxxxxxxx will be responsible for any disclosure by any of
them that would be prohibited by this provision if made by Xx. Xxxxxxxx. Xx.
Xxxxxxxx represents and warrants to STAR that, prior to executing this
Agreement, Xx. Xxxxxxxx has not made any disclosure that would violate this
provision.
Xx. Xxxxxxxx agrees that he will not publicly or privately say or
do anything to disparage STAR, its officers, directors, employees, business,
operations, products or services.
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Xx. Xxxxxxxx further agrees that he will not take any action injurious to the
business interest or reputation of STAR, its officers, directors, employees,
business, operations, products or services, provided that the restrictions
imposed by this sentence shall not prohibit Xx. Xxxxxxxx from competing with
STAR in a fair and ethically manner following the date hereof.
6. CONSULTING SERVICES
In consideration for the "Severance Payment" specified in paragraph
2 of this Agreement, Xx. Xxxxxxxx agrees to provide consulting services to STAR
for the period February 1, 2001 through January 31, 2002.
a. NATURE OF WORK. Xx. Xxxxxxxx will provide services in an
advisory capacity in any manner reasonably requested by Xxxxx Xxxxxxx, STAR's
Chief Executive Officer, or by other officers, directors, employees, agents or
consultants of STAR directed to Xx. Xxxxxxxx by Xx. Xxxxxxx. Xx. Xxxxxxxx shall
be available to provide consulting services to STAR on matters as to which STAR
may request Xx. Xxxxxxxx'x services relating to, among other things, matters
concerning STAR's customers, vendors, business relationships, business
opportunities and business trends, on reasonable notice, at reasonable times,
and within reasonable parameters. Xx. Xxxxxxxx shall be available to provide
such consulting services from February 1, 2001 through January 31, 2002.
b. REPRESENTATIONS. Xx. Xxxxxxxx represents and warrants that he is
free to enter into this Agreement with STAR and that he is not bound by any
employment agreement, nondisclosure agreement, noncompetition agreement or any
other agreement or obligation that may infringe on his ability or in any manner
prevent Xx. Xxxxxxxx from performing any of the duties that may be required of
Xx. Xxxxxxxx under this Agreement, or that may in any way result in any
involvement by STAR in any matter, action, suit or proceeding concerning Mr.
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Xxxxxxxx'x former employment with any former employer or the termination
thereof. Xx. Xxxxxxxx agrees to indemnify and hold STAR harmless against any and
all costs, attorneys' fees, losses, liabilities and expenses resulting from any
claims arising out of, directly or indirectly, or in any way related to Xx.
Xxxxxxxx'x representations set forth herein, including without limitation any
breach thereof.
c. PERFORMANCE OF DUTIES TO REASONABLE SATISFACTION OF STAR. Xx.
Xxxxxxxx shall devote sufficient business time, attention and energies as
necessary to perform his duties hereunder. Xx. Xxxxxxxx agrees that, at all
times, he will to the best of his ability, experience and talent, and in good
faith perform all of the duties that may be required of and from him pursuant to
the express and implicit terms hereof, to the reasonable satisfaction of STAR,
and STAR will provide all necessary information and other support appropriate to
the performance of Xx. Xxxxxxxx'x services.
d. COMPENSATION. In consideration of Xx. Xxxxxxxx'x willingness to
render the consulting services described in this Agreement, whether utilized by
STAR during the term hereof or not, STAR will pay Xx. Xxxxxxxx the "Severance
Payment", as stated in paragraph 2 of this Agreement.
e. STATUS OF CONSULTANT. This Agreement calls for the performance
of the services of Xx. Xxxxxxxx as an independent contractor, and Xx. Xxxxxxxx
will not be considered an employee of STAR for any purpose. STAR will issue Xx.
Xxxxxxxx an IRS Tax Form 1099 for all services rendered under this Agreement.
Xx. Xxxxxxxx represents his Tax Identification number is ###-##-####.
f. Support Services. During the term of this Agreement, STAR shall
pay, or reimburse Xx. Xxxxxxxx for, his long-distance telephone charges, cell
phone charges, Internet
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access and, through March 1, 2001, home security services, provided that all
payments over $1,000 shall require the prior approval of Xxxxx Xxxxxxx.
g. NONDISCLOSURE OF TRADE SECRETS AND CONFIDENTIAL INFORMATION. Xx.
Xxxxxxxx acknowledges that from time to time he may be provided with STAR's
Trade Secrets, as defined below, and any other confidential information related
directly or indirectly thereto. Xx. Xxxxxxxx further acknowledges his fiduciary
obligations in respect thereof. Without limiting the scope of such fiduciary
obligations, Xx. Xxxxxxxx agrees that he shall not, at any time or in any
manner, directly or indirectly, use for his own benefit or the benefit of any
other person or entity, or otherwise divulge, disclose, or communicate to any
person or entity any information concerning any Trade Secret or confidential
information of STAR without the prior express written consent of STAR. All
files, records, documents and similar items relating to the business of STAR or
concerning any Trade Secret or confidential information, including copies
thereof, whether prepared by Xx. Xxxxxxxx or otherwise coming into his
possession, shall remain the exclusive property of STAR and shall not be removed
from STAR's premises without the prior express written consent of STAR. Xx.
Xxxxxxxx will return all Trade Secrets and confidential information as defined
above in his possession within five (5) business days after termination of this
Agreement and shall not retain any copies. This covenant of nondisclosure and
Xx. Xxxxxxxx'x liability for breach of such covenant shall survive the
expiration and termination of this Agreement. The term "Trade Secrets", as used
in this Agreement, shall be given its broadest possible interpretation and shall
mean any information, including, without limitation, a formula, pattern,
compilation, program, device, method, technique, or process, that (i) derives
independent economic value, actual or potential, from not being generally known
to
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the public or to other persons who can obtain economic value from its disclosure
or use, and (ii) is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.
h. TERMINATION OF CONSULTING SERVICES.
i) WITHOUT CAUSE. STAR may terminate this Agreement without
cause upon thirty (30) days written notice to Xx. Xxxxxxxx.
ii) CAUSE. STAR has the right to terminate this Agreement
immediately for cause in the event Xx. Xxxxxxxx fails to perform as required by
this Agreement. "Cause" shall exist if Xx. Xxxxxxxx fails to perform
obligations, duties or responsibilities to the reasonable satisfaction of STAR
or otherwise fails to follow the reasonable directive of STAR, as otherwise set
forth in this Agreement.
iii) COMPENSATION ON TERMINATION. Following the termination of
this Agreement by STAR without cause, Xx. Xxxxxxxx shall receive in full the
compensation specified in Paragraph 2 of this Agreement but shall not otherwise
be entitled to any additional compensation of any nature whatsover..
7. RESERVED.
8. COOPERATION.
Xx. Xxxxxxxx agrees that, subject to his availability, and if requested
to do so by STAR, he will assist STAR to resolve issues arising where his
personal knowledge or information may be of help without compensation beyond
that compensation specified in Paragraph 2.
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9. BREACH OR MISREPRESENTATION.
Inasmuch as the actual damages that would result from any breach of the
provisions of Paragraphs 5, 6, and 8, are uncertain and would be impractical and
extremely difficult to fix, Xx. Xxxxxxxx agrees that STAR shall be entitled to
injunctive relief to prevent any anticipated breach of the provisions of
Paragraphs 5, 6, and 8, in addition to any other legal or equitable relief to
which STAR may be entitled under this Agreement or applicable law.
Moreover, in the event of any breach of either Paragraphs 5, 6(h)(ii),
or 8 by Xx. Xxxxxxxx, and without in any way affecting any other covenant or
provision in this Agreement, including, without limitation, Xx. Xxxxxxxx'x
General Release in Paragraph 4, above, and in addition to any relief to which
STAR otherwise is entitled under this Agreement or applicable law, including,
but not limited to, injunctive relief and the recovery of actual damages, all
further payments to Xx. Xxxxxxxx of any remaining Share Installment due on any
Installment Date, as further set forth in Paragraph 2 of this Agreement shall
cease without any further liability on the part of STAR thereafter.
10. MISCELLANEOUS.
a. Xx. Xxxxxxxx represents and warrants that he has not heretofore
assigned or transferred to any person, firm, corporation or entity any claim or
other matter herein released. Xx. Xxxxxxxx agrees to indemnify STAR and anyone
else herein released and hold them harmless against any claims, costs or
expenses, including, without limitation, attorneys' fees actually paid or
incurred, arising out of, related to or in any manner whatsoever connected with
any such transfer or assignment.
b. In the event that either party pursues litigation to remedy any
breach of this Agreement by the other party, or in the event either party
becomes involved in any
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litigation with the other party where the breach of this Agreement is in issue,
the prevailing party shall be entitled to recover from the losing party the
reasonable costs and attorneys' fees the prevailing party incurs in connection
with any such litigation, in addition to any other legal or equitable relief to
which the prevailing party may be entitled. In such circumstances, however, all
obligations under this Agreement, including, without limitation, the General
Releases and Covenants in Paragraphs 4, 5, 6, , and 8 above, shall remain in
full force and effect.
c. In executing this Agreement, Xx. Xxxxxxxx has not relied and is
not relying on any representation or statement made by STAR or any of its
related entities, or by any agent, representative or attorney of STAR or any of
its related entities, with regard to the subject matter, basis or effect of this
Agreement or otherwise, other than those specifically stated in this Agreement.
This Agreement sets forth the entire agreement between Xx. Xxxxxxxx and STAR
and, except as expressly set forth herein, fully supersedes any and all prior
agreements or understandings between them pertaining to the subject matter of
this Agreement. It may not be altered, modified, amended or changed, in whole or
in part, except in a writing executed by Xx. Xxxxxxxx and the Chief Executive
Officer of STAR.
d. Pursuant to the Older Workers Benefit Protection Act, STAR and
Xx. Xxxxxxxx acknowledge and agree that (i) Xx. Xxxxxxxx will have forty-five
(45) days to consider the terms of this Agreement (including, without
limitation, Xx. Xxxxxxxx'x release and waiver of any and all claims under the
Age Discrimination in Employment Act) before executing it, (ii) he will have
seven (7) days after his execution of this Agreement in which to revoke this
Agreement, in which event a written notice of revocation must be received by
STAR's General Counsel, Xxx Xxxxxxxxx, on or before the seventh day, and (iii)
this Agreement will not become effective and enforceable until the seven (7) day
revocation period has expired without
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revocation of the Agreement by Xx. Xxxxxxxx. Xx. Xxxxxxxx further acknowledges
that (i) he has received from STAR a description of eligibility factors used by
STAR in determining eligibility for separation pay in connection with this
reduction in force, and (ii) he has been provided with a list of ages and job
titles of all employees eligible for separation pay, as well as a list of other
employees in his job classification or organizational unit who are ineligible
for separation pay.
e. Xx. Xxxxxxxx and STAR each agree to bear his and its own costs,
expenses, attorneys' fees and any other expenditures in connection with the
negotiation and preparation of this Agreement.
f. This Agreement shall be construed as if both parties
participated equally in its negotiation and drafting, and each party agrees that
any ambiguity contained in any provision of this Agreement shall not be
construed against any particular party to this Agreement by virtue of that
party's role in the negotiation or preparation of this Agreement.
g. Xx. Xxxxxxxx acknowledges that (i) he has been given the
opportunity to seek the advice of independent legal counsel concerning this
Agreement, (ii) STAR has urged him to seek such independent legal advice, (iii)
he fully understands the terms of this Agreement including, without limitation,
the significance and consequences of his General Release in Xxxxxxxxx 0, xxxxx,
(xx) he is not releasing any claims that may arise after the date of this
Agreement, (v) he is executing this Agreement in exchange for consideration in
addition to anything of value to which he already is entitled, and (vi) he is
fully satisfied with the terms of this Agreement, and is executing this
Agreement voluntarily, willingly and knowingly, and without any duress.
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h. If any provision or term, or part of a provision or term, of
this Agreement is declared or determined by any court to be illegal or invalid,
the validity of the remaining parts, provisions or terms shall not be affected
thereby, and said illegal or invalid part, provision or term shall not be deemed
to be a part of this Agreement.
i. This Agreement may be executed in one or more counterparts, each
of which shall be deemed as an original, but all of which, together, shall
constitute one and the same instrument.
j. This Agreement shall be governed by the laws of the State of
California, without reference to its choice of law rules.
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THE UNDERSIGNED HAVE READ THE FOREGOING AGREEMENT AND FULLY UNDERSTAND
AND AGREE TO IT:
"STAR" "XX. XXXXXXXX"
STAR TELECOMMUNICATIONS, INC.
By:
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Xxxxx X. Xxxxxxx XXXXXXXXXXX X. XXXXXXXX
Chairman and Chief Executive
Officer
Date: Date:
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