SEPARATION AND RELEASE AGREEMENT
THIS
SEPARATION AND RELEASE AGREEMENT (the “Agreement”) is entered into as of the 1st
day of May, 2009, by and between, Xxxxx Xxxxxxxx (“Employee”) and Towerstream
Corporation, and any subsidiaries or affiliates of the Company (collectively
referred to herein as the “Company”).
WHEREAS, Employee and the
Company are parties to an employment offer letter, dated as of July 24, 2008
(the “Employment Agreement”);
WHEREAS, Employee is currently
employed as the Chief Operations Officer of the Company; and
WHEREAS, this Agreement
governs the terms of Employee’s separation from the Company.
NOW, THEREFORE, in
consideration of the mutual covenants and agreements contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound, the parties hereby agree
as follows:
1. Effective Date of
Resignation. Employee acknowledges that, as
of the date of this Agreement, his position of Chief Operations Officer of the
Company has been eliminated. Consequently, Employee has been
terminated from the Company. Employee agrees to execute any and all documents as
may be reasonably necessary to confirm his termination from such
positions. The Employee understands and agrees that he is no longer
authorized to conduct any business on behalf of the Company or to hold himself
out as an officer, employee, agent or representative of the
Company. The Employee understands and agrees that he is no longer
authorized to incur any expenses, obligations, or liabilities on behalf of the
Company.
2. Severance. As
severance, the Company shall pay to Employee $40,000 (the “Severance Payments”),
which amount is equal to three months salary, and shall be paid within ten (10)
business days of the Employee’s execution of this Agreement. The
Severance Payments shall be made provided that Employee does not revoke his
acceptance of the Agreement pursuant to Section 14
below. The Severance Payments will be subject to any and all
applicable taxes and withholdings.
Employee
acknowledges and agrees that the Severance Payments provided to him, as set
forth within this paragraph, exceed any and all payments and/or benefits that
would otherwise be due to the Employee as severance and unpaid salary and
benefits, and that Employee is not entitled to any other payments, salary,
commissions, compensation or benefits from the Company aside from what is set
forth within this paragraph.
3. Treatment of Equity
Holdings. Employee is entitled to the 10,136 options which
have vested as of the date of this Agreement. Employee shall not be
entitled to any additional options, including, but not limited to any options
vesting after the date hereof. Notwithstanding any provision of the
Company’s option plan or any other agreement between Employee and the Company or
any other party to the contrary, the Company agrees that Employee shall have the
unqualified right to exercise any of the vested options pursuant to their
terms.
4. Employee
Release. In exchange for the consideration
provided for in this Agreement, Employee irrevocably and unconditionally
releases the Company, its predecessors, parents, subsidiaries, affiliates, and
past, present and future officers, directors, agents, consultants, employees,
representatives, and insurers, as applicable, together with all successors and
assigns of any of the foregoing (collectively, the “Releasees”), of and from all
claims, demands, actions, causes of action, rights of action, contracts,
controversies, covenants, obligations, agreements, damages, penalties, interest,
fees, expenses, costs, remedies, reckonings, extents, responsibilities,
liabilities, suits, and proceedings of whatsoever kind, nature, or description,
direct or indirect, vested or contingent, known or unknown, suspected or
unsuspected, in contract, tort, law, equity, or otherwise, under the laws of any
jurisdiction, that the Employee or his predecessors, legal representatives,
successors or assigns, ever had, now has, or hereafter can, shall, or may have,
against the Releasees, as set forth above, jointly or severally, for, upon, or
by reason of any matter, cause, or thing whatsoever from the beginning of the
world through, and including, the date of this Agreement
(“Claims”).
Such
release includes, but is not limited to, the violation of any express or implied
contract; any federal, state or local laws, restricting an employer’s right to
terminate employees, or otherwise regulating employment; workers compensation,
wage and hour, or other employee relations statutes, executive orders,
ordinance, or regulations, including any rights or claims under Title VII of the
Civil Rights Act of 1964, as amended the Civil Rights Act of 1991, the Americans
with Disabilities Act of 1990, the Rehabilitation Act of 1973, the Family and
Medical Leave Act of 1993, the Civil Rights Act of 1866, the Employee Retirement
Income Security Act of 1974, the Age Discrimination in Employment Act of 1967
(“ADEA”) (29 U.S.C. § 626, as amended), the Fair Labor Standards Act, the WARN
Act, or any state or local laws covering the same subject matter; tort
(including, without limitation, negligent conduct, invasion of privacy and
defamation); any federal, state, or local laws providing recourse for
retaliation, wrongful discharge, dismissal or other obligations arising out of
public policy, physical or personal injury, fraud, negligent misrepresentations,
and similar or related claims. The laws referred to in this section include
statutes, regulations, other administrative guidance, and common law doctrines.
Any and all claims and/or disputes arising out of or relating to any of the
foregoing shall be, and are, finally compromised, released and
settled.
Notwithstanding
the foregoing, this release does not include Employee’s right to enforce the
terms of this Agreement. Employee understands that this Agreement
releases claims that he may not know about. This is Employee’s knowing and
voluntary intent, even though Employee recognizes that someday he might learn
that some or all of the facts that he currently believes to be true are untrue
and even though he might then regret having signed this Agreement.
Except to
enforce this Agreement, Employee agrees that he will not pursue, file or assert
or permit to be pursued, filed or asserted any civil action, suit or legal
proceeding seeking equitable or monetary relief (nor will he seek or in any way
obtain or accept any such relief in any civil action, suit or legal proceeding)
in connection with any matter concerning his employment relationship with the
Company and/or the termination thereof with respect to all of the claims
released herein arising from the beginning of the world up to and including the
date of execution of this Agreement (whether known or unknown to him and
including any continuing effects of any acts or practices prior to the date of
execution of this Agreement). Except for the payments and benefits set forth
herein, Employee acknowledges that he has been paid all wages and other amounts
due to him and that he is not entitled to any other payments or benefits of any
kind.
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If
Employee should bring any action arising out of the subject matter covered by
this Agreement, except to enforce this Agreement, he understands and recognizes
that he will, at the option of the Company, be considered in breach of this
Agreement and shall be required to immediately return any and all funds received
pursuant to this Agreement. Furthermore, if the Company should
prevail concerning any or all of the issues so presented, Employee shall pay to
the Company all of the costs and expenses of defense, including attorney’s
fees.
5. Company
Release. In exchange for the consideration
provided for in this Agreement, the Company irrevocably and unconditionally
releases the Employee of and from all claims, demands, causes of actions, fees
and liabilities of any kind whatsoever, which it had, now has or may have
against the Employee, as of the date of this Agreement, by reason of any actual
or alleged act, omission, transaction, practice, conduct, statement, occurrence,
or any other matter, within the reasonable scope of the Employee’s employment
that is known to the Company. The Company represents that, as of the
date of this Agreement, there are no known claims relating to the
Employee.
6. Company Information and
Property. Employee agrees to immediately
return to the Company all Company property and information in his possession
including, but not limited to, Company reports, customer lists, supplier lists,
consultant lists, formulas, files, manuals, memoranda, computer equipment,
access codes, discs, software, and any other Company business information or
records, in any form in which they are maintained, including records or
information regarding Company customers, suppliers and vendors, and Company
products and product development, and agrees that he will not retain any copies,
duplicates, reproductions, or excerpts thereof in any form. Employee further
agrees that he will not, in any manner, make use of any Company property and
information in any future dealings, business or otherwise, and acknowledges that
any use of Company property and information in any future dealings, business or
otherwise, would constitute a breach of this Agreement. Employee acknowledges
that any breach of this section would cause irreparable injury to the Company
for which there is no adequate remedy at law and in addition to any remedies
that may be available to the Company in the event of a breach or threatened
breach of this section by Employee, including monetary damages, the Company
shall be entitled to obtain a temporary restraining order and/or a preliminary
or permanent injunction which would prevent Employee from violating or
attempting to violate the provisions of this section of the
Agreement. In seeking such an order, any requirement to post a bond
or other undertaking shall be waived. In any such action, the Company
shall be entitled to an award of all reasonable costs and fees incurred in
bringing such an action, including reasonable attorney’s fees.
7. Confidentiality. Employee
agrees that he will not disclose, directly or indirectly, the underlying facts
that led up to this Agreement or the terms or existence of this Agreement.
Employee represents that he has not and will not, in any way, publicize the
terms of this Agreement and agrees that its terms are confidential and will not
be disclosed by him except that he may discuss the terms of this Agreement with
his attorneys, financial advisors, accountants, and members of his immediate
family, or as required by law. Employee understands and agrees that
should he violate this provision of the Agreement, he will be responsible to the
Company for liquidated damages in the amount of any and all funds payable
pursuant to this Agreement and understands that such monetary relief shall not
be a bar to the Company’s pursuit of injunctive relief.
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8. Non-disparagement. Employee
represents and agrees that he shall refrain from making any written or oral
statements to any person or entity with whom the Company or Employee has had or
may have a business or social relationship which may reasonably be expected to
impugn or degrade the character, integrity, ethics or business practices of the
Company, its affiliates, employees, directors, officers, agents, representatives
or clients, or which may reasonably be expected to damage the business, image or
reputation of the Company, its affiliates, employees, directors, officers,
agents, representatives, or clients.
The
Company represents and agrees that it shall refrain from making any written or
oral statements to any person or entity with whom the Company or the Employee
has had or may have a business or social relationship which may reasonably be
expected to impugn or degrade the character, integrity, or ethics of the
Employee. Should there by any inquiry as to the Employee’s employment
with the Company, the Company agrees to provide the following information: dates
of Employee’s employment with the Company, position held by Employee, and the
reason for Employee’s departure (i.e., voluntary resignation),
and will not otherwise comment about the Employee or about the Employee’s
performance of his duties and responsibilities while employed by the
Company.
9. Indemnity. The Company shall indemnify and hold
harmless Employee from any and all losses,
costs,
damages, expenses,
claims, or charges (including
reasonable attorneys’ fees and costs) arising out of or in any way connected
with Employee’s employment with the Company and Employee having served as an
officer of the Company for any actions taken by Employee within the reasonable
scope of his employment in such capacities during the time Employee was employed
by the Company.
10. Future
Cooperation. Employee agrees to reasonably cooperate with the
Company, its financial and legal advisors, in connection with any business
matters for which the Employee’s assistance may be required and in any claims,
investigations, administrative proceedings or lawsuits which relate to the
Company and for which Employee may possess relevant knowledge or
information. Any travel and accommodation expenses incurred by the
Employee as a result of such cooperation will be reimbursed in accordance with
the Company’s standard policies.
11. Applicable Law and
Jurisdiction. This Agreement shall be
governed by and construed in accordance with the laws of the State of Delaware,
without regard to its conflicts of law principles. Any dispute
regarding this Agreement or related to the Employee’s employment with the
Company shall be resolved in the Courts located in Delaware, without a jury
(which is hereby expressly waived).
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12. Entire
Agreement. This Agreement may not be changed
or altered, except by a writing signed by both parties. Until such time as this
Agreement has been executed and subscribed by both parties hereto: (i) its terms
and conditions and any discussions relating thereto, without any exception
whatsoever, shall not be binding nor enforceable for any purpose upon any party;
and (ii) no provision contained herein shall be construed as an inducement to
act or to withhold an action, or be relied upon as such. This
Agreement constitutes an integrated, written contract, expressing the entire
agreement and understanding between the parties with respect to the subject
matter hereof and supersedes any and all prior agreements and understandings,
oral or written, between the parties, including the Employment Agreement, except
as otherwise provided herein.
13. Assignment. Employee
has not assigned or transferred any claim he is releasing, nor has he purported
to do so. If any provision in this Agreement is found to be
unenforceable, all other provisions will remain fully enforceable. This
Agreement binds Employee’s heirs, administrators, representatives, executors,
successors, and assigns, and will insure to the benefit of all Released Parties
and their respective heirs, administrators, representatives, executors,
successors, and assigns.
14. Binding
Effect. This Agreement will be deemed
binding and effective immediately upon its execution by the Employee; provided,
however, that in accordance with the ADEA, Employee’s waiver of ADEA claims
under this Agreement is subject to the following: Employee may consider the
terms of his waiver of claims under the ADEA for twenty-one (21) days before
signing it and may consult legal counsel if Employee so desires. Employee may
revoke his waiver of claims under the ADEA within seven (7) days of the day he
executes this Agreement. Employee’s waiver of claims under the ADEA will not
become effective until the eighth (8th) day following Employee’s signing of this
Agreement. Employee may revoke his waiver of ADEA claims under this Agreement by
delivering written notice of his revocation, via facsimile and overnight mail,
before the end of the seventh (7th) day following Employee’s signing of this
Agreement to: Xxxxxxx X. Xxxxxxxx, Chief Executive Officer, 00 Xxxxxxxxxx Xxx,
Xxxxxxxxxx, Xxxxx Xxxxxx 00000 (fax: 000-000-0000). In the event that
Employee revokes his waiver of ADEA claims under this Agreement prior to the
eighth (8th) day after signing it, the remaining portions of this Agreement
shall remain in full force in effect, except that the obligation of the Company
to provide the payments and benefits set forth in Section 2 of this
Agreement shall be null and void. Employee further understands that if Employee
does not revoke the ADEA waiver in this Agreement within seven (7) days after
signing this Agreement, his waiver of ADEA claims will be final, binding,
enforceable, and irrevocable.
EMPLOYEE
UNDERSTANDS THAT FOR ALL PURPOSES OTHER THAN HIS WAIVER OF CLAIMS UNDER THE
ADEA, THIS AGREEMENT WILL BE FINAL, EFFECTIVE, BINDING, AND IRREVOCABLE
IMMEDIATELY UPON ITS EXECUTION.
15. Acknowledgement. Employee
acknowledges that he: (a) has carefully read this Agreement in its entirety; (b)
has been presented with the opportunity to consider it for at least twenty-one
(21) days; (c) has been advised to consult and has been provided with an
opportunity to consult with legal counsel of his choosing in connection with
this Agreement; (d) fully understands the significance of all of the terms and
conditions of this Agreement and has discussed them with his independent legal
counsel or has been provided with a reasonable opportunity to do so; (e) has had
answered to his satisfaction any questions asked with regard to the meaning and
significance of any of the provisions of this Agreement; and (f) is signing this
Agreement voluntarily and of his own free will and agrees to abide by all the
terms and conditions contained herein.
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TOWERSTREAM
CORPORATION
|
By:
|
/s/ Xxxxxxx X.
Xxxxxxxx
|
| Xxxxxxx X. Xxxxxxxx, Chief Executive Officer |
Executed
on the 1st day of May, 2009
|
By:
|
/s/ Xxxxx
Xxxxxxxx
|
|
Xxxxx
Xxxxxxxx
|
Executed
on the 18th day of May, 2009
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