EXHIBIT 10.13
CONFIDENTIAL TERMINATION AND RELEASE AGREEMENT
THIS CONFIDENTIAL TERMINATION AND RELEASE AGREEMENT (this "Agreement")
effective as of May 31, 1999, is entered into by and between Centennial
Communications Corp., a Delaware corporation (the "Company"), and Xxxxxxxx X.
Xxxxxxx ("Employee").
RECITALS
A. Employee has been an employee and Sr. Vice President of the Company and has
held various positions with certain of the Company's affiliates and
subsidiaries.
B. The Company is in the process of restructuring the Company, and the Company
and Employee have agreed terminate Employee's employment with the Company and to
settle fully and finally all claims.
In consideration of the mutual covenants and agreements set forth in this
Agreement, the parties agree as follows:
TERMS AND CONDITIONS
Section 1. Termination of Employee. Employee's employment is hereby
terminated as an employee of the Company effective as of the date set forth
above.
Section 2. Compensation. In consideration for the release by Employee
contained in Section 6 and the other covenants of Employee contained in this
Agreement, including, but not limited to the agreement set forth in Section 1
above, the Company shall pay Employee, upon expiration of the revocation period
specified in Section 13 below but no more than 10 days after the execution of
this Agreement, a severance payment of $100,000, composed of (i) a bonus equal
to 25% of Employee's annual salary ($42,500) for achieving certain goals in
Lima, Peru, and (ii) $57,500 as additional severance. In addition, the parties
acknowledge that Employee is entitled to the following compensation: (i) 25%
of the accounts receivable collected on accounts that are more than 60 days past
due customer accounts in Peru and Ecuador for the period ending May 31, 1999;
(ii) 10% of the amount actual EBITDA exceeded budgeted 1999 EBITDA for all Latin
American operations for the months of March, April and May 1999; and (iii)
$24,396.63 representing 298.5 hours of vacation pay.
Section 3. Incentive Stock Options. The Company granted Employeee certain
incentive stock options ("Incentive Stock Options") (representing options in
shares of the Company's Common Stock) granted pursuant to the Company's 1996
Stock Option Plan adopted January 12, 1996, as amended. Employee's Incentive
Stock Options shall continue to vest through December 31, 1999 as though he had
remained an Employee through such date, and Employee shall have two years from
December 31, 1999 to exercise such Incentive Stock Options.
Section 4. Withholding. Employee authorizes the Company to withhold, in
accordance with applicable law, from the compensation specified in Sections 2
and 3, any taxes required to be withheld by any federal, state or local law or
regulation arising out of such compensation.
Section 5. Nonsolicitation and Confidentiality Covenants.
(a) Employee acknowledges that he possesses proprietary and trade
secret information concerning the Company. Employee further acknowledges the
highly competitive nature of the Company's business. For a period of 12 months
from the date hereof, Employee shall keep in strictest confidence and trust all
Proprietary Information (as defined below), and shall not use or disclose any
Proprietary Information without the written consent of the Company. Moreover,
Employee shall deliver to the Company all documents, notes, drawings,
blueprints, computer programs, data, security card keys and similar devices, and
other materials of any nature pertaining to any Proprietary Information or to
Employee's work with the Company, and Employee shall not take any of the
foregoing, or any reproduction of any of the foregoing, that is embodied in a
tangible medium of expression. The term "Proprietary Information" includes,
without limitation, discoveries, developments, designs, improvements,
inventions, blueprints, processes, computer programs, know how, data, marketing
and business plans and outlines, budgets, projections, unpublished financial
statements, costs, fee schedules, client and supplier lists, client and
prospective client databases, and access codes and similar security information
and procedures; provided, however, that the term "Proprietary Information" shall
not include any of the foregoing which is in the public domain other than as the
result of a breach of Employee's obligations under this Section 5(a).
(b) If, at the time of enforcement of this Section 5, a court shall
hold that the duration, scope or area restrictions stated herein are
unreasonable under circumstances then existing, the parties agree that the
maximum duration, scope or area reasonable under such circumstances shall be
substituted for the stated duration, scope or area.
(c) In the event of the breach or a threatened breach by Employee
of any of the provisions of this Section 5, the Company, in addition and
supplementary to other rights and remedies existing in its favor, may apply to
any court of law or equity of competent jurisdiction for specific performance
and/or injunctive or other relief in order to enforce or prevent any violations
of the provisions hereof.
Section 6. Release.
(a) As a material inducement to the Company to enter into this
Agreement, Employee hereby irrevocably and unconditionally releases, acquits and
forever discharges the Company, each of the Company's owners, stockholders,
predecessors, successors, assigns, agents, directors, Employees, employees,
representatives, attorneys, divisions and persons controlling, controlled by or
under common control with the Company ("Affiliates") (and present or former
agents,
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directors, Employees, employees, representatives and attorneys of such
Affiliates) acting by, through or in concert with the Company and all other
persons acting by, through or in concert with any of them (collectively,
"Releasees") and each of them, from any and all charges, complaints, claims,
demands and liabilities whatsoever of every name and nature (including
reasonable attorney's fees and costs actually incurred), known or unknown,
existing or that may hereafter exist, and any and all causes of action which
could have been asserted by claim, counterclaim or otherwise, against any of the
Releasees pertaining to the business and affairs of the Company, Employee's
employment with the Company or the termination thereof, the relationships
between Employee and any of the Releasees or any other act of omission which has
previously transpired up to the date of execution of this Agreement. The claims
released by this Section 6(a) include but are not limited to any claims under
the Age Discrimination in Employment Act, 29 U.S.C. (S) 621, et seq. ("ADEA"),
or any other statute or law prohibiting discrimination in employment on the
basis of age, race, religion, disability, gender or national origin or other
status (collectively, "Claims").
(b) As a material inducement to Employee to enter into this
Agreement, the Company, on behalf of itself and its subsidiaries, hereby
irrevocably and unconditionally releases, acquits and forever discharges
Employee from any and all charges, complaints, claims, demands and liabilities
whatsoever of every name and nature (including reasonable attorney's fees and
costs actually incurred), known or unknown, existing or that may hereafter
exist, and any and all causes of action which could have been asserted by claim,
counterclaim or otherwise, pertaining to the business and affairs of the
Company, Employee's employment with the Company or the termination thereof, the
relationships between Employee and any of the Releasees, or any other act of
omission which has previously transpired up to the date of execution of this
Agreement (collectively, "Company Claims").
Section 7. Representation Regarding No Complaints or Charges and
Covenant Not to Xxx. Employee and the Company each represents to the other that
it has not filed any complaints or charges against any of the Releasees or
Employee, respectively, with any local, state or federal agency or court.
Employee and the Company each further represents, agrees and covenants to the
other that it will not file any such complaints or charges against any of the
Releasees or Employee, respectively, with any local, state or federal agency or
court at any time hereafter with respect to any Claim or Company Claim, as the
case may be. If any complaint or charge against the Company or any Releasee is
filed on behalf of Employee, Employee agrees to take all reasonable steps
necessary to effectuate the withdrawal of such complaint or charge. In the event
that any local, state or federal agency or court undertakes any proceeding
relating to Employee's employment by the Company or the circumstances of his
leaving the Company's employ, Employee hereby waives any right he may have to
recover any damages or any remedy of whatever nature as a result of any such
proceeding.
Section 8. Ownership of Claims. Employee represents and agrees that he
has not previously assigned or transferred, or purported to have assigned or
transferred, to any person whomsoever, any Claim or portion thereof or interest
therein against any of
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the Releasees. Employee agrees to indemnify, defend and hold harmless each and
all of the Releasees against any and all claims based on, arising out of, or in
connection with any such transfer or assignment, or purported transfer or
assignment, of any Claims or any portion thereof or interest therein. The
Company represents and agrees that it has not, and to the best of its knowledge
no other Releasee has, previously assigned or transferred, or purported to have
assigned or transferred, to any person whomsoever, any Company Claim or portion
thereof or interest therein against Employee. The Company agrees to indemnify,
defend and hold harmless Employee against any and all claims based on, arising
out of, or in connection with any such transfer or assignment, or purported
transfer or assignment, of any Company Claims or any portion thereof or interest
therein.
Section 9. No Admission of Liability. Employee and the Company each
acknowledge that neither the execution of this Agreement nor the performance of
its terms shall constitute an admission by the Company or Employee of any
wrongful acts whatsoever against any other party or any other person, and the
Company and Employee each specifically disclaim any liability to any other party
or any other person.
Section 10. Disclosure. Except as otherwise required by law, Employee
agrees that he will not disclose or cause to be disclosed any negative, adverse
or derogatory comments or information about the Company and its Affiliates or
its management or about the Company's and its Affiliates' prospects for the
future, to any person or entity, including, but not limited to, any current,
former, or prospective employee or investor in the Company or any of its
Affiliates. Except as otherwise required by law or by the instruments governing
the Company's existing indebtedness, the Company agrees that it will not
disclose or cause to be disclosed any negative, adverse or derogatory comments
or information about Employee to any person or entity, including any prospective
employer of Employee.
Section 11. Confidentiality. Employee and the Company agree that they will
keep the facts associated with this matter, and the terms of this Agreement
strictly confidential; provided, however, that Employee and the Company may
disclose such matters to attorneys, tax advisors or as may be required by law.
Further, it is expressly understood and agreed that this confidentiality
provision is an essential provision of this Agreement.
Section 12. Complete Agreement. This Agreement embodies the complete
agreement and understanding between the parties and supersedes and preempts any
prior understandings, agreements or representations by or between the parties,
written or oral, which may have related to the subject matter of this Agreement
in any way. Employee represents and agrees that he has been informed by the
Company that he should consult with his own attorney before executing this
Agreement, that he has carefully read and fully understands all of the
provisions of this Agreement and that he is voluntarily entering into this
Agreement. The Company and Employee each further represent and agree that, with
respect to the matters set forth in this Agreement, none of them can rely on any
statements or representations other than those set forth in this Agreement.
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Section 13. Revocation. Employee acknowledges that he is knowingly and
voluntarily waiving and releasing any rights he may have under the ADEA. He also
acknowledges that the consideration given for the release in Section 6 hereof is
in addition to anything of value to which he was already entitled. He further
acknowledges that he has been advised by this writing, as required by the ADEA,
that: (a) his waiver and release do not apply to any rights or claims that may
arise after the execution date of this Agreement; (b) he has 21 days to consider
this Agreement (although he may choose to voluntarily execute this Agreement
earlier); and (c) he has seven days following the execution of this Agreement by
the parties to revoke the Agreement. Notice of revocation, together with any
shares of the Company's common stock exercised pursuant to Section 3, should be
sent to the Company in accordance with Section 17.
Section 14. Successors and Assigns. This Agreement is intended to bind and
inure to the benefit of and be enforceable by Employee and the Company and their
respective successors and assigns.
Section 15. Choice of Law. All questions concerning the construction,
validity and interpretation of this Agreement will be governed by the internal
law, and not the law of conflicts, of the State of Colorado.
Section 16. Modifications and Waivers. No provision of this Agreement may
be modified, altered or amended except by an instrument in writing executed by
each of the parties to this Agreement. No waiver by any party to this Agreement
of any breach by another party to this Agreement of any term or provision of
this Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar terms or provisions at the time or at any prior or
subsequent time.
Section 17. Notices. Any notice provided for in this Agreement shall be in
writing and shall be either personally delivered, or mailed first class mail
(postage prepaid) or sent by reputable overnight courier service (charges
prepaid) at the respective addresses set forth below or at such address or to
the attention of such other person as the recipient party has specified by prior
written notice to the sending party. Notices will be deemed to have been given
hereunder when delivered personally, three days after deposit in the U.S. mail
and one day after deposit with a reputable overnight courier service. The
Company's address is:
Centennial Communications Corp.
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Facsimile: 000-000-0000
Attention: President
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Employee's address is:
Xxxxxxxx X. Xxxxxxx
0000 Xxxx Xxx.
Xxxxx Xxxxxx, XX 00000
Section 18. Counterparts. This Agreement may be executed in separate
counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same Agreement.
Section 19. Authority. The Company represents to Employee that Xxxxxxx
Xxxxxxxxxx, as Vice President, has the authority to execute this Agreement on
its behalf.
Section 20. Further Action. Employee agrees to execute all resignations
from his positions with the Company and its affiliates and subsidiaries upon
request at any time after the effective date of this Agreement.
CENTENNIAL COMMUNICATIONS CORP.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------
Xxxxxxx X. Xxxxxxxxxx
Date: May 24, 1999
/s/ Xxxxxxxx X. Xxxxxxx
-----------------------
Xxxxxxxx X. Xxxxxxx
Date: May 24, 1999
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