EXHIBIT 10.1
SEPARATION AGREEMENT AND RELEASE
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This Separation Agreement and Release (the "Agreement") is entered into
this 31st day of December, 2008 between TelVue Corporation (the "Company") and
Xxxxxx X. Xxxxxx ("you").
WHEREAS, your employment by the Company ended as of December 19, 2008;
WHEREAS, the Company agrees to provide certain payments to you;
WHEREAS, you agree to undertake certain obligations set forth in the
Agreement; and
NOW, THEREFORE, in consideration of the payments and provisions set
forth herein, the parties agree as follows:
1. Effective the 19th day of December 2008, your employment with the
Company ended. Consistent therewith, you agree to resign from all offices and
positions you have held as officer, member of the Company's Board of Directors
and/or member of any committee with the Company and any affiliates.
2. CONSIDERATION. In exchange for your execution of this Agreement and
the undertaking of the obligations set forth herein, the Company will provide to
you the following consideration, to which you would not otherwise be entitled.
(a) Severance Pay. The Company will pay you fifty-two (52)
weeks of severance (the "Severance Pay Period") totaling $200,150.00, less
appropriate deductions for federal and state withholding and other applicable
taxes, as well as any lawfully authorized or required payroll deductions. The
severance pay shall be payable in bi-weekly installments as salary continuation
in accordance with the Company's normal payroll practices provided that no
payment shall be made, or benefits provided, prior to the "Effective Date" (as
defined in paragraph 4(d)).
(b) Extension of Time to Exercise Vested Stock Options.
Notwithstanding any agreement or plan to the contrary, the Company shall extend
until December 31, 2011 the time in which you may exercise the right to purchase
any stock options vested as of December 19, 2008.
(c) Health Insurance. Your health insurance benefits will
terminate effective March 31, 2009. If, after March 31, 2009, you elect to
continue your health insurance coverage under COBRA, you shall be solely
responsible for all payments of premiums for health insurance in that regard.
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3. Except as otherwise provided herein, you voluntarily, knowingly and
willingly RELEASE, ACQUIT AND FOREVER DISCHARGE AND COVENANT NOT TO XXX the
Company, its predecessors, successors, parents, subsidiaries and affiliates,
successors, and assigns and each of their past, present and future managers,
members, shareholders, directors, officers, partners, agents, employees,
attorneys, representatives, and fiduciaries and successors and assigns ("the
Company Released Parties") from any and all claims (including claims for
attorneys' fees and costs, except as otherwise noted herein), demands and causes
of action, whether known or unknown, which you may have arising out of, or in
any way relating to, your employment or termination of your employment with the
Company. This release includes any and all claims, actions, suits, and causes of
action, that you, your heirs or assigns, may have against the Company and/or the
Company Released Parties as of the date of execution of this Agreement under any
federal, state or local ordinance, regulation, rule, statute, decision,
constitution, or law, including, but not limited to, claims arising under
The National Labor Relations Act, as amended;
Title VII of the Civil Rights Act of 1964, as amended;
Sections 1981 through 1988 of Title 42 of the United States Code, as
amended;
The Employee Retirement Income Security Act of 1974, as amended;
The Immigration Reform Control Act, as amended;
The Americans with Disabilities Act of 1990, as amended;
The Age Discrimination in Employment Act of 1967, as amended ("ADEA");
The Fair Labor Standards Act, as amended;
The Occupational Safety and Health Act, as amended;
The Family and Medical Leave Act of 1993;
The Equal Pay Act, as amended;
The New Jersey Law Against Discrimination, as amended;
The New Jersey Minimum Wage Law, as amended;
The New Jersey Wage and Hour Law, as amended;
Equal Pay Law for New Jersey, as amended;
The New Jersey Worker Health and Safety Act, as amended;
The New Jersey Family Leave Act, as amended;
The New Jersey Conscientious Employee Protection Act, as amended;
The New Jersey Employer-Employee Relations Act, as amended;
Any anti-retaliation provision of any statute or law including common
law;
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Any other federal, state or local civil or human rights law or any
other local, state or federal law, regulation or ordinance;
Any provision of any federal or state constitution;
Any public policy, contract, tort, or common law, including, but not
limited to, a cause of action for defamation;
Any losses, injuries or damages (including back pay, front pay,
liquidated, compensatory or punitive damages); and
Attorneys' fees and any liens of any nature arising out of the
allegations made in connection with your employment with the Company.
This release does not apply to the requirements and obligations contained within
the Agreement.
This release does not include any claims, suits and causes of action that you
may bring against the Company as a stockholder of the Company.
4. You make the following additional representations to the Company,
each of which is significant and an important consideration for the Company's
willingness to enter into the Agreement:
a. You expressly acknowledge that if you do not execute the
Agreement, you would not be entitled to receive the consideration set forth in
paragraph 2.
b. You agree that the Company and the Company Released Parties
specifically disclaim any liability hereunder and that the agreement is not and
shall not be construed as an admission of any liability or violation of the
rights of any individual, violation of any law, statute, duty or contract
whatsoever by the Company or any of the Company Released Parties.
c. You agree that you will not make any statement(s) that
disparage or may be interpreted to disparage the Company, including its
successors, assigns, parents, subsidiaries, partners, divisions, affiliates,
officers, directors, members, employees, agents and representatives, with
respect to any matter whatsoever.
d. You understand that you may change your mind and revoke the
Agreement at any time during the seven (7) days immediately following the date
you sign the Agreement, provided you do so in writing in the manner provided in
paragraph 11, hereof, in which case none of the provisions of the Agreement will
have any effect. Ten (10) days after you have executed this Agreement without
revoking it will be considered the "Effective Date" of this Agreement.
Acceptance of any payment shall be a further indication that you have accepted
the terms of the Agreement and have decided not to revoke that acceptance.
e. You agree that during the Severance Pay Period, you shall
continue to be available for reasonable consultation and cooperate in a
reasonable manner in providing assistance to the Company with respect to any
matters which are reasonably related to the duties and responsibilities which
you had while employed by the Company, including remaining available to the
President and Chief Executive Officer of the Company upon request for advice and
counsel.
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f. You agree and acknowledge that the Company, on a timely
basis, has paid, or agreed to pay, to you all other amounts due and owing based
on your prior services and that the Company has no obligation, contractual or
otherwise to you, except as provided herein, nor does it have any obligation to
hire, rehire or re-employ you in the future. Your right to continue to
participate in any of the retirement, insurance and other benefit plans and
programs of the Company in effect as of the date of termination shall be
determined according to the terms and provisions of such programs and plans and
applicable law.
5. By signing this Agreement, you admit and agree that
a. you have read the Agreement;
b. you understand it is legally binding, and you were advised
to review it with a lawyer of your choice prior to executing this Agreement;
c. you have had (or have had the opportunity to take) 21
calendar days to review it and discuss it with a lawyer of your choice before
signing it, and, if you sign before the end of that period, you do so of your
own free will and with the full knowledge that you could have taken the full
period;
d. you realize and understand the release covers all claims,
demands, and causes of action against the Company and any Company Released
Parties, including claims under the ADEA, whether or not you know or suspect
them to exist at the present time; and
e. you understand the terms of the Agreement, you are signing
voluntarily and with the full understanding of its consequences, and you have
not been forced or coerced in any way.
6. You represent that you do not presently have in your possession any
records and business documents, whether in electronic form or hard copy, and
other materials (including but not limited to computer disks and tapes, computer
programs and software, office keys, correspondence, files, customer lists,
technical information, customer information, pricing information, business
strategies and plans, sales records and all copies thereof) (collectively, the
"Corporate Records") (i) provided by the Company, its predecessors, or its
subsidiaries or affiliates, (ii) obtained as a result of your employment with
the Company, its predecessors, or its subsidiaries or affiliates, or (iii)
created by you while employed by or rendering services to the Company, its
predecessors, or its subsidiaries or affiliates. You acknowledge that all such
Corporate Records are the property of the Company. In addition, you shall
promptly return in good condition any and all beepers, credit cards, cellular
telephone equipment, business cards and computers. The Company shall make
arrangements to remove, terminate or transfer any and all business communication
lines including network access, cellular phone, fax line and other business
numbers.
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7. By signing this Agreement, you promise and agree, at all times after
December 19, 2008 to cooperate fully with the Company and its officers,
directors, employees, agents and legal counsel, at the sole discretion of the
Company, in connection with any claim, complaint, charge, suit or action
previously or hereafter asserted or filed against the Company and/or Company
Released Parties which relates to, arises out of or is connected directly or
indirectly with (a) you employment with the Company, (b) any other relationship
or dealings between you and the Company and/or Company Released Parties, or (c)
any other matter relating to the Company and/or Company Released Parties. Your
cooperation with the Company shall continue throughout the pendency of any such
claim, complaint, charge, suit or action. Further, you promise and agree that,
in the event you are subject to a valid and enforceable subpoena or court order
which compels your testimony at a trial, hearing or deposition concerning your
relationship with the Company or any other matter relating to the Company and/or
Company Released Parties, you will provide reasonable and prompt notice to the
Company of this fact and cooperate fully with the Company prior to and during
your testimony, to the maximum extent possible, consistent with your obligation
to provide truthful testimony. Your cooperation in this regard shall include,
but shall not be limited to, full consultation with reasonable notice, at a
reasonable time, with the Company's officers, directors, employees, agents and
legal counsel. You further agree that, in the event you are named as a defendant
in a legal proceeding resulting from, arising out of, or connected directly or
indirectly with your employment with the Company, or any act, omission or
conduct occurring during your employment with the Company, you will provide
reasonable and prompt notice of this fact to the Company. Company agrees to
reimburse you for reasonable out-of-pocket expenses resulting from such
consultation. Except with respect to matters involving fraud or intentional,
reckless, or gross misconduct, arising out of your employment with the Company,
the Company hereby covenants and agrees to indemnify you and to hold you
harmless fully, completely, and absolutely against and in respect to any and all
actions, suits, proceedings, claims, demands, judgments, costs, expenses
(including attorney's fees), losses, and damages resulting from your good faith
performance of your duties and obligations as an employee or officer of the
Company and your service as a member of the Board of Directors. The Company
agrees to maintain for a period of six (6) years directors and officers
liability insurance coverage for you, on the same terms as such coverage is
provided for other directors and officers of the Company.
8. You acknowledge, and reaffirm the validity of that certain
"Agreement with Restrictive Covenants" that you signed on March 19, 2007 during
your employment with the Company (the "Agreement with Restrictive Covenants"),
which is incorporated herein by reference into this Agreement and shall continue
in force and effect after December 19, 2008, and that you remain fully
responsible and liable for complying with all of the obligations, promises and
covenants set forth in the Agreement with Restrictive Covenants.
9. By executing this Agreement, you acknowledge that your employment
with the Company has been an employment at will relationship and that you have
at no time been given any promises relating to the length of your employment
with the Company. You further acknowledge that no promises of future employment
with the Company have been made to you.
10. You further acknowledge and agree that if you breach any of your
obligations or covenants set forth in this Agreement, you will forfeit all
payments made to you under this Agreement and all future payments and benefits
hereunder shall immediately terminate as of the breach.
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11. You have seven (7) days from the date you sign the Agreement to
revoke and cancel it. To do that, a clear, written revocation notice, signed by
you must be received by the Company, before the close of business on the seventh
(7th) calendar day following the date you sign this Agreement. Upon the
expiration of that seven-day period, this Agreement shall become effective for
all purposes, and the Company shall become obligated to provide the
consideration as set forth in paragraph 2.
12. The Agreement and all acts and transactions contemplated hereunder
shall be governed, construed, and interpreted in accordance with the laws of the
State of New Jersey, without regard to principles of conflict of laws.
13. Except as specifically provided herein, each party shall be
responsible for its own attorneys' fees and, in no event, shall the Company be
responsible for your attorneys' fees.
14. The Company and you agree that the Agreement sets forth the entire
agreement between the parties and that it fully supersedes all prior
discussions, representations, agreements, and/or understandings pertaining to
the subject matter of the Agreement, except that the Agreement with Restrictive
Covenants incorporated herein by reference shall survive and remain in full
force and effect. You further acknowledge that in executing the Agreement, you
have not relied upon any representation or statement not set forth herein made
by the Company or any of the Company Released Parties or their agents, lawyers,
or representatives.
15. It is hereby acknowledged and agreed that: (a) so long as the
Company is not in breach of this Agreement, it shall have the right to assign
all or any part of its or their rights, title and interest in and to the
covenants and agreements set forth in this Agreement to one or more purchasers
(who must agree in writing to comply with the Company's obligations under the
Agreement) in the event of a sale of all or substantially all of the assets of
any of the Company; and (b) the obligations of the you may not be delegated by
you and you may not assign, transfer, pledge, encumber, hypothecate or otherwise
dispose of this Agreement, or any of your rights or obligations hereunder, and
any such attempted delegation, assignment, transfer or disposition by you shall
be null, void and without effect.
16. The Agreement may be amended, modified, superseded, canceled,
renewed or extended and the terms hereof may be waived only by a written
instrument executed by both parties hereto.
17. All notices and other communications to be given hereunder shall be
given in writing and shall be delivered personally or mailed by registered or
certified mail, postage prepaid, return receipt requested, addressed to:
The Company:
TelVue Corporation
00000 Xxxxxxx Xxx, Xxxxx 000
Xx. Xxxxxx, XX 00000
Attn: Xx. Xxxxx Xxxxxx
You:
Xx. Xxxxxx X. Xxxxxx
00 Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
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Notice shall be deemed to have been duly given on the date of delivery (if
delivered personally) to the party to whom notice is to be given or as of the
date indicated on the return receipt (or, if such notice is refused, on the date
when delivery of such notice is first refused).
18. The Agreement shall be binding upon and inure to the benefit of the
Company and its successors and assigns and shall be binding upon you and your
heirs and legal representatives.
19. The waiver by either party hereto of a breach or violation of any
provisions of the Agreement shall not operate as, or be construed to be, a
waiver of any subsequent breach of the same or other provision hereof.
20. The Agreement may be executed in two counterparts, each of which
shall be deemed to be an original and both of which, when taken together, shall
be deemed to constitute but one and the same agreement.
BY SIGNING BELOW, YOU SIGNIFY THAT YOU HAVE READ THE TERMS OF THIS
AGREEMENT, FULLY UNDERSTAND ITS TERMS, ARE VOLUNTARILY AGREEING TO THOSE TERMS,
AND INTEND TO BE LEGALLY BOUND.
TELVUE CORPORATION
/s/ Xxxxx Xxxxxx
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By: Xxxxx Xxxxxx
Title: President & CEO
XXXXXX X. XXXXXX
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Dated: December 31, 2008
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