Exhibit 99.2
December 29, 1995
Xxxxxxx X.X. Xxxxxxx, Esq.
0000 Xxxxxx Xxxx
Xxxxxx, Xxx Xxxx 00000
Dear Xx. Xxxxxxx:
Upon your acceptance of the terms and conditions set forth in this
Release and Settlement Agreement ("Agreement"), ACC Corp. ("ACC") will provide
you with the specified consideration. For purposes of this Agreement, "ACC"
shall also mean and include any subsidiary or affiliate of ACC Corp.
Your signing of this Agreement is an acknowledgment that pursuant to
this Agreement, you have received, or will receive, benefits from ACC to which
you were not otherwise entitled, the receipt and sufficiency of which you
acknowledge by signing this Agreement. This Agreement is intended to settle
fully and finally all claims, controversies, disputes and other matters between
you and ACC, its officers, directors, employees and agents.
Effective as of December 21, 1995, your employment with ACC ended.
You will thereafter no longer be authorized to act on behalf of ACC or to incur
any expenses or obligations in the name of ACC. As of December 21, 1995, no
other payment will be due to you from ACC, except as expressly provided for in
this Agreement.
1. SEVERANCE PACKAGE:
------------------
(a) SALARY:
-------
In consideration of your release, your covenants and the other
terms of this Agreement, ACC will, upon the effective date of this
Agreement, pay you the sum of $165,000, representing one year's salary
of $130,000 plus an additional sum of $35,000. ACC will pay $9,500 of
the foregoing amount into your account under ACC's 401(k) Plan. The
balance will be paid directly to you.
This payment is and shall be treated as severance pay, and shall be
paid in the same manner and in the same amounts as the salary that you
received for the year immediately preceding the termination of your
employment. ACC shall withhold from your severance pay federal,
state, local and FICA taxes. No
- 2 -
taxes, except FICA, will be withheld with respect to the $9,500
contributed to your 401(k) account. This severance pay includes all
your accrued vacation pay.
(b) BENEFITS:
---------
ACC will make an additional contribution to your 401(k) account in
the amount of $3,900 (3% of your total base salary of $130,000).
In lieu of your health/dental insurance, cellular telephone
allowance, long distance allowance, officer reimbursement allowance
and all other employee benefits of any nature, including disability
insurance, ACC shall pay to you the sum of $13,800. Said payment
shall be reported to the applicable taxing authorities as compensation
to the same extent as it had been previously (with $6,100 being the
total cost for one year of COBRA coverage equivalent to the
health/dental coverage you now have, $2,400 cellular telephone
allowance, $300 long distance allowance and $5,000 officer
reimbursement allowance and compensation for disability insurance
premiums).
(c) SUPPLEMENTARY BENEFITS:
-----------------------
In addition to the foregoing benefits set forth in subparagraph (b)
above, you will be entitled to the following benefits without regard
to any new employment you may obtain:
i. Outplacement Allowance of $15,000, payable upon the effective
date of this Agreement
ii. Annual incentive plan - 1995 - $52,000.00 payable upon the
effective date of this Agreement
iii. Transfer of Company Car (Volvo) - Prior to 12/27/96, the
Company will buy out the existing lease and purchase the 1995
Volvo company car for you. Until such time as that buy-out is
accomplished, ACC will continue to pay the lease, insurance and
service payments in place at this time. The decision as to when
prior to 12/27/96 the buy-out will be accomplished shall rest
exclusively with ACC
iv. Accelerated vesting of all current unvested stock options that
would otherwise have vested through 1/3/97. These options will
vest as of the effective date of this Agreement and you may
exercise them at any time through March 31, 1996. (See attached
Schedule "A.")
(d) ENTIRE PACKAGE:
---------------
You acknowledge and represent that you have received or will
receive pursuant to this Agreement all compensation, both monetary and
- 3 -
non-monetary, including but not limited to wages, bonuses, benefits,
overtime pay, supplements, vacation and holiday pay, sick pay,
disability pay and all other sums of money, stock options, stock
appreciation rights or similar rights to which you are entitled from
ACC through December 21, 1995, except as may be specifically set forth
or provided for in this Agreement. This Agreement shall not operate
to waive any benefits due to you as a result of retirement, the New
York Workers' Compensation Law and the New York Unemployment Insurance
Law. You will also be reimbursed for authorized expenses incurred
before December 21, 1995.
(e) PAYMENT:
--------
All payments required by ACC shall be made on the eighth (8th) day
(or first business day thereafter) after your execution and delivery
of this Agreement.
2. RETURN OF PROPERTY:
-------------------
Upon your receipt of the sums set forth in paragraph 1(a) above, you will
return all property and materials which belong to ACC (whether or not such
materials were prepared by ACC) and which are in your possession or over
which you exercise any control, including, but not limited to all
proprietary documents, data, records, computer hardware, computer software
and documentation, notebooks, or other information pertaining to ACC's
business and operations, and you agree not to keep copies thereof in any
form. ACC will make available such non-confidential records and documents
as you may reasonably request from time to time as may be necessary for you
to file any tax returns, applications, or reports or to respond to any
litigation in which you may be involved against third parties.
Notwithstanding the foregoing, for the sum of $1.00 you may purchase from
ACC your (i) personal computer equipment; (ii) Casio and software; and
(iii) dictaphone.
3. FUTURE CONDUCT:
---------------
(a) FUTURE CONDUCT:
---------------
Except to the extent required by law, you agree that you will not,
at any time after the date hereof, disclose to any person,
corporation, partnership or other entity whatsoever any non-public
business plans, procedures, pricing and marketing structure and
strategies, programs, forms, confidential information, trade secrets
or other data and information relating to ACC learned by you at any
time during your employment with ACC.
- 4 -
(b) CONFIDENTIALITY:
----------------
Except to the extent required by law, you understand and agree that
as a condition of the payment and agreements described in this
Agreement, the terms of this Agreement shall be kept confidential by
you, except that you may disclose the terms of this Agreement to your
spouse, attorney and/or accountant if he or she also agrees to keep
this Agreement and its terms confidential.
(c) DISPARAGEMENT:
--------------
You and ACC agree to refrain from making any statements, whether
verbal or written, which disparage you or ACC or any subsidiary or
affiliate thereof, its employees, management, products, policies or
services.
(d) RE-EMPLOYMENT:
--------------
You covenant and agree at any time after the date of this
Agreement, not to apply for or otherwise seek employment with ACC or
any wholly-owned subsidiary or affiliate thereof and do hereby waive
any and all rights you may have to do so.
4. MISCELLANEOUS:
--------------
(a) Notwithstanding the release provided in paragraphs 5(a) and (b)
below, if either party breaches this Agreement, the other party
retains all rights or remedies provided in law or in equity by reason
of said breach.
(b) You acknowledge that this is our entire agreement and supersedes all
prior agreements, understandings, discussions, negotiations and
undertakings, whether written or oral, between the parties with
respect thereto, including any rights of the parties under the
Employment Continuation Incentive Agreement in effect on the date of
your termination, but does not supersede the agreements between you
and ACC concerning indemnification. You further acknowledge that the
headings in this Agreement are for convenience only and have no
bearing on the meaning of this Agreement.
(c) This Agreement shall not in any way be construed as an admission by
ACC that it or its officers, directors, employees or advisors have
acted wrongfully with respect to you or that you have any rights
whatsoever against ACC, its officers, directors employees, or
advisors. Similarly, this Agreement shall not in any way be construed
as an admission by you of any wrongdoing.
- 5 -
(d) You have consulted with the law firm of Xxxxxxxx & Xxxxxxxx, New
York, New York, regarding this Agreement before signing it.
(e) You have carefully read and fully understand all the terms of this
Agreement and are freely and voluntarily entering into this
Agreement without coercion. In addition, you have been given a draft
of this Agreement and will have at least twenty-one (21) days to
consider its terms although you may sign it at any time during the
21 day period. You have carefully considered the terms set forth in
this Agreement. You understand that this Agreement may be revoked by
you within seven (7) days of its execution by you and that this
Agreement shall not become effective or enforceable until this
revocation period has passed.
5. RELEASES:
---------
(a) As a material inducement to ACC to enter into this Agreement and in
consideration for the above, you agree to forever release, acquit,
covenant not to xxx and discharge ACC, and its subsidiaries,
affiliates, employees, officers, representatives, attorneys,
directors and shareholders and their predecessors, successors and
assigns from and against any and all charges, complaints, claims,
liabilities, obligations, promises, agreements, controversies,
damages, actions, causes of action, suits, rights, demands, costs,
losses, debts and expenses of any nature whatsoever, known or
unknown, suspected or unsuspected and all claims for attorney's
fees, costs, disbursements, and expert witness fees which you now
have, own or hold or claim to have, own or hold or which you owned
or claimed to have owned or held, including, but not limited to
those relating to or arising out of:
(1) your employment with ACC;
(2) your termination of employment with ACC;
(3) claims relating to wages, payments and benefits except as
excluded herein;
(4) the New York Labor Law, the New York State Human Rights Law,
the New York State Lawful Activities Act (section 201-d of the
New York Labor Law), Section 740 of the New York Labor Law
("Whistleblower Statute"), Title VII of the Civil Rights Act of
1964, Title IX of the Civil Rights Act of 1964, the Civil
Rights Act of 1991, the Equal Pay Act, the Employee Retirement
Income Security Act of 1974, the Age Discrimination in
Employment Act of 1967, as amended, the Older Workers Benefit
Protection Act of 1990, the Rehabilitation Act of 1973, the
Fair Labor Standards Act, the Occupational Safety and
- 6 -
Health Act, the Americans with Disabilities Act, Federal
Executive Order 11246 and all amendments thereto, the Family and
Medical Leave Act, New York Civil Rights Law (S)(S) 70-a, and all
regulations pertaining to all such laws;
(5) any other federal, state or local law, rule or regulation; and
(6) all tort claims and all claims of wrongful or unjust
termination, defamation, prima facie tort, breach of or
interference with contract, promissory estoppel, intentional
infliction of emotional distress or breach of any express or
implied covenant of good faith and fair dealings.
You agree that ACC shall not have any obligation to you other than as set forth
in this Agreement or as set forth in any employee benefit plan in which you are
a participant for any other monies or benefits including, but not limited to,
salary, benefits, bonus, or vacation or any obligation set forth in any
agreement of employment or other agreement with ACC, whether such agreement
shall be express or implied. Provided, however, that this release shall not
affect or diminish your rights, as a matter of law or contract, to
indemnification from ACC.
(b) As a material inducement to you to enter into this Agreement and in
consideration for the above, ACC and its subsidiaries and affiliates
agree to forever release, acquit, covenant not to xxx and discharge
you, and your predecessors, successors and assigns from and against
any and all charges, complaints, claims, liabilities, obligations,
promises, agreements, controversies, damages, actions, causes of
action, suits, rights, demands, costs, losses, debts and expenses of
any nature whatsoever, known or unknown, suspected or unsuspected
and all claims for attorney's fees, costs, disbursements, and expert
witness fees which ACC now has, owns or holds or claims to have, own
or hold or which ACC owned or claimed to have owned or held,
including, but not limited to those relating to or arising out of:
(1) your employment with ACC;
(2) your termination of employment with ACC;
(3) claims relating to wages, payments and benefits except as
excluded herein;
(4) the New York Labor Law, the New York State Human Rights Law,
the New York State Lawful Activities Act (section 201-d of the
New York Labor Law), Section 740 of the New York Labor Law
("Whistleblower Statute"), Title VII of the Civil Rights Act of
1964, Title IX of the
- 7 -
Civil Rights Act of 1964, the Civil Rights Act of 1991, the Equal
Pay Act, the Employee Retirement Income Security Act of 1974,
the Age Discrimination in Employment Act of 1967, as amended, the
Older Workers Benefit Protection Act of 1990, the Rehabilitation
Act of 1973, the Fair Labor Standards Act, the Occupational
Safety and Health Act, the Americans with Disabilities Act,
Federal Executive Order 11246 and all amendments thereto, the
Family and Medical Leave Act, New York Civil Rights Law (S)(S)
70-a, and all regulations pertaining to all such laws;
(5) any other federal, state or local law, rule or regulation; and
(6) all tort claims and all claims of wrongful or unjust
termination, defamation, prima facie tort, breach of or
interference with contract, promissory estoppel, intentional
infliction of emotional distress or breach of any express or
implied covenant of good faith and fair dealings.
6. ERISA CONTINGENCIES/COMPLIANCE:
-------------------------------
(a) Nothing herein contained, and no action taken pursuant to this
Agreement by either party hereto, shall create, or be construed to
create, a trust of any kind, or a fiduciary relationship between ACC
and you or any other employee except as provided below.
(b) In the event that this Agreement is deemed to be a welfare benefit
plan under the Employee Retirement Income Security Act of 1974
("ERISA"), then:
(1) ACC is hereby designated as the named fiduciary under the
Agreement. The named fiduciary shall have authority to control
and manage the operation and administration of the Agreement,
and it shall be responsible for establishing and carrying out
any funding policy and method consistent with the objectives of
the Agreement;
(2) ACC shall make all determinations as to eligibility rights and
benefits under the Agreement as to any individual other than
you. Any decision by ACC denying a claim by an employee for
benefits under the Agreement shall be stated in writing and
delivered or mailed to such employee. Such decision shall set
forth the specific reasons for the denial, written to the best
of ACC's ability in a manner that may be understood without
legal counsel. In addition, ACC shall afford a reasonable
opportunity to such employee for a full and fair review of the
decision denying such claims;
- 8 -
(3) Subject to the foregoing, ACC shall have full power and
authority to interpret, construe and administer the Agreement
as it may apply to individuals other than you. The
interpretation and construction of the Agreement by ACC, and
any action taken under it, shall be binding and conclusive upon
all parties in interest other than you. No officer, director,
or employee of ACC shall, in any event, be liable to any person
for any action taken or omitted to be taken in connection with
the interpretation, construction or administration of the
Agreement with respect to individuals other than you, so long
as such action or omission to act is made in good faith.
(4) All parties to the Agreement or claiming any interest under the
Agreement other than you shall be bound by such amendments or
termination.
(5) Provided that no interpretation, amendment or termination of
this Agreement shall reduce or affect in any way your rights
hereunder, ACC shall have the right to terminate any plan
created by this Agreement at any time as it may apply to anyone
other than you.
Please review this Agreement carefully. Please consult with your
attorney, if you wish. We would like it returned to us signed by no later than
the 22nd day after it is provided to you. If you do not return it to us,
signed, by that date, we shall assume that you have elected not to accept the
terms and conditions of this Agreement.
Your signature below indicates your acceptance of this Agreement and
shall cause this Agreement to be binding upon you, your heirs, representatives
and assigns. Your signature shall also signify that you have read and
understood the Agreement, have reviewed it with your attorney or have elected
not to do so.
Very truly yours,
ACC Corp.
By: /s/ Xxxxx X. Xxxxxx
------------------------
Accepted and Agreed to on this
29th day of December, 1995.
/s/ Xxxxxxx X.X. Xxxxxxx
------------------------------
Xxxxxxx X.X. Xxxxxxx
- 9 -
Schedule "A"
------------
The following schedule sets forth those options that currently are unvested but
that, as of the effective date of this Agreement, will be vested:
1996 Stock Option Vesting Schedule
----------------------------------
Shares Granted Grant Date Xxxxx Xxxxx 96 Vesting
12,300 01/03/95 14.75 3,075
7,500 06/03/92 10.9167 1,875
7,500 11/30/92 18.75 1,875
25,000 08/11/94 14.75 6,250
------
13,075
97 Vesting
12,300 01/03/95 14.75 3,075
------
16,150