Exhibit 10.14.3
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SEPARATION AGREEMENT
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This Separation Agreement ("this Agreement"), dated as of November 13,
2001, is made by and between IWO Holdings, Inc., a Delaware corporation
("Holdings"), Independent Wireless One Corporation, a Delaware corporation and
wholly-owned subsidiary of Holdings ("Corporation" and, together with Holdings,
"Employer"), and Xxxx X. Xxxx Xx. ("Employee") regarding his separation from
employment with Employer.
WHEREAS, Employer and Employee wish mutually and amicably to separate, and
they wish to conclude the business relationship that presently exists between
them,
NOW, THEREFORE, in consideration of the mutual promises made herein, and
for other good and valuable consideration, the parties hereto agree as follows:
1. TERMINATION OF EMPLOYMENT. Employee acknowledges and agrees that his
employment with Employer is terminated effective October 29, 2001 (the
"Termination Date"). Employer acknowledges that its Board of Directors
and the Board of Directors of Holdings consider this termination to be
without cause, solely for purposes of paragraph 4(a) of the Stock
Option Agreement, executed between Employee and Holdings as of
December 20, 1999. Employer and Employee acknowledge and agree that
the Agreement of Employment dated December 20, 1999, entered into by
and between Employer and Employee, as amended on May 2, 2000, is
terminated effective as of the Termination Date.
2. PAYMENTS AND BENEFITS.
A. Employer shall take or cause to be taken the following actions:
1. Holdings agrees to pay Employee the total purchase price of
$172,783.68 for the repurchase of 30,077.16 shares of Class
B Common Stock of Holdings, which Holdings has elected to
repurchase under and pursuant to the terms and conditions of
the Management Bonus Stock Agreement dated December 20, 1999
and the Management Stock Purchase Agreement dated March 30,
2000, entered into by and between Holdings and Employee,
such agreements being hereby incorporated by reference.
2. Corporation will pay a separation payment to Employee of
$209,166.66 minus required withholding taxes on or before
the Termination Date.
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3. Corporation will pay an amount equal to the Employee's
health insurance premium through COBRA for up to twelve
months from the Termination Date.
4. Corporation will pay up to $10,000 for employment counseling
services to the employment counseling service provider of
Employee's choice.
5. Corporation will pay Employee $24,442.31, as compensation
for 248 earned but unused hours of paid time off on the
Termination Date.
6. Employee agrees that the payments provided for in this
paragraph 2 are in lieu of all other benefits and claims
that Employee might have against the Employer or against
other Employer Released Parties.
7. Employee agrees he is not entitled to, and Employer is not
liable for, any salary payments, employee benefits
(including but not limited to vacation accruals), or other
compensation for the period of his employment from October
29, 2001 through December 31, 2001, except as explicitly
stated in paragraph 2.B of this Agreement.
B. It is understood and agreed that Employee will retain vested
stock options for a total 252,973.4623 shares in the Class B
Common Stock of Holdings, consisting of currently vested stock
options for 151,123.5930 shares of such stock, and vested stock
options for 101,849.8693 additional shares in such stock for the
time elapsed between January 1, 2000 and October 29, 2001. It is
expressly understood and agreed with respect to all of these
vested stock options that Employee shall have one year from the
Termination Date, which is until October 29, 2002, in which to
exercise said vested stock options, in accordance with, and
subject to, the terms and conditions of the applicable Stock
Option Agreement and plan documents.
C. Employee acknowledges and agrees that he is not entitled to any
other stock options, stock shares, or other equity interests in
Corporation, Holdings, or Independent Wireless One Leased Realty
Corporation except as explicitly stated in this Agreement, and
that the Performance Vesting Options referenced in paragraph
3(a)(ii) of his Stock Option Agreement are hereby cancelled and
superseded and are no longer applicable to Employee.
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D. Employee acknowledges and agrees that he is not entitled to any
performance based employee compensation or bonus for the year
2001.
E. Employee acknowledges and agrees that all principal and accrued
but unpaid interest outstanding under the Loan and Pledge
Agreements with Holdings, dated December 12, 2000 and March 20,
2000, are due and payable upon Employee's date of termination.
The principal and accrued but unpaid interest amount currently
outstanding as of November 13, 2001 is $168,755.85 ($143,617.02
of which is principal and $25,138.83 of which is interest).
F. Employee agrees to return all company property (including but not
limited to company vehicle, credit card(s), cell phone(s) and
laptop computer) to Xxxxxx Xxxxxx, Director of Human Resources,
Independent Wireless One Corporation at 00 Xxxxxxxxx Xxxxxx,
Xxxxxx, XX 00000 on or before November 29, 2001, however,
Employee agrees to immediately purge all company information from
his personal computer(s) and eliminate access to the company
database and files.
3. NO PAYMENTS AND BENEFITS ABSENT EXECUTION OF THIS AGREEMENT. Employee
recognizes that the payments and other benefits referred to in
paragraph 2 (A)-(B) are above and beyond amounts otherwise due him
from Employer, including any amounts due him under Corporation's
general policies and programs or under his Agreement of Employment.
Employee understands and agrees that he would not receive the
consideration specified in paragraph 2 except for his execution of and
compliance with this Agreement and the agreements incorporated herein
by reference and Employer's material reliance upon his fulfillment of
the promises contained herein.
4. GENERAL RELEASE OF CLAIMS BY EMPLOYEE.
For and in consideration of the payments and other covenants
referenced in this Agreement, Employee fully and completely releases
Corporation, Holdings, and Independent Wireless One Leased Realty
Corporation, their respective directors, officers, shareholders,
attorneys, benefit plans administrators, agents, and employees, both
present and former, and their respective successors, predecessors,
subsidiaries, and affiliates, and any person or entity acting for or
on behalf of Corporation, Holdings, or Independent Wireless One Leased
Realty Corporation (collectively "the Employer Released Parties"),
from any and all claims, liabilities,
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demands, and causes of action of any kind, in law or in equity,
whether known or unknown, which against the Employer Released Parties,
Employee, his heirs, executors, legal representatives and assigns,
ever had, now have, or hereafter may have, by reason of any matter,
thing or cause whatsoever from the beginning of the world to the day
of the date of this
General Release, including, but not limited to, claims arising out of
Employee's employment or termination of employment with Employer.
This General Release includes, but is not limited to, any claims
arising under Title VII of the Civil Rights Act of 1964, the
Rehabilitation Act of 1973, the Americans With Disabilities Act of
1990, the Employee Retirement Income and Security Act, the Equal Pay
Act, the Age Discrimination and Employment Act, the Family and Medical
Leave Act, and the New York Human Rights Law, all as amended, or any
other federal, state, or local civil rights statute or constitution,
claims for back-pay, claims for front pay, claims for interest, claims
for wrongful discharge, constructive discharge, or unjust dismissal,
claims for breach of any alleged oral, written, or implied contract of
employment, claims for salary or severance payments, claims for
benefits, claims for stock options, claims for employment
discrimination or harassment, claims for humiliation, claims for
defamation, claims sounding in tort, claims for emotional distress,
claims for reinstatement, claims for pain and suffering, claims for
punitive damages, claims for compensatory damages of any kind, and
claims for injunctive relief, and claims for attorneys' fees.
5. PROHIBITED STATEMENTS. In further consideration of the terms of this
Agreement, Employee agrees to refrain from taking any action or making
any statements, written or oral, which disparage or defame the
goodwill or reputation of the Corporation, Holdings, Independent
Wireless One Leased Realty Corporation, their respective officers,
directors, or employees. In further consideration of the terms of this
Agreement, the officers and directors of Employer agree to refrain
from taking any action or making any statements, written or oral,
which disparage or defame the goodwill or reputation of Employee.
Corporation agrees to give Employee a neutral employment reference,
signed by a representative of the Corporation, which describes
Employee's job responsibilities and indicates that Employee left his
employment voluntarily for his own personal reasons, upon Employee's
request.
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6. CONFIDENTIALITY. Employee will keep confidential the terms and
conditions of this Agreement, except as otherwise required by law, and
except that he may inform his spouse and communicate confidentially
with his legal and financial advisors, each of whom shall agree in
advance to keep such information confidential. Employer's officers and
directors will keep confidential the terms and conditions of this
Agreement, except as otherwise required by law, or as required to
effectuate the terms of this Agreement, or as required to fulfill any
fiduciary, legal, or other obligations towards Employer's
shareholders, creditors, or investors that Employer may, in its sole
judgment, deem to exist. Employer's officers and directors also may
confidentially communicate the terms and conditions of this Agreement
to legal and financial advisors, and to the officers and directors of
Independent Wireless One Leased Realty Corporation, each of whom shall
agree in advance to keep such information confidential.
7. NO LITIGATION. Employee agrees never to file or institute against
Employer or any of the Employer Released Parties, any suit, charge, or
action, before any court, agency, arbitral panel or other tribunal
wherever situated, asserting any claim or cause of action which exists
or may have existed on or before the date of this Agreement. If
Employee initiates any such litigation, the parties sued shall be
entitled to recover from Employee their damages and reasonable costs
and attorneys' fees incurred to enforce this agreement.
8. ADDITIONAL COVENANTS.
A. Employee agrees and acknowledges that the Restrictive Covenants
contained in his Agreement of Employment, signed and dated
December 20, 1999, and amended on May 2, 2000, shall remain in
full force and effect.
B. Employee shall take or cause to be taken all actions and to do,
or cause to be done, all things necessary, proper or advisable to
consummate and make effective the transactions contemplated
herein.
9. MISCELLANEOUS.
A. The terms of this Agreement may not be changed, waived,
discharged, or terminated orally, except by an instrument in
writing signed by Employer and Employee. The waiver by either
party of a breach of any provision of this Agreement shall not
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operate or be construed as a waiver of any subsequent breach by
the same party.
B. This Agreement and the rights and obligations of the parties
hereunder shall be governed by and construed in accordance with
the laws of the State of New York without regard to principles of
choice of laws or conflicts of laws thereof.
C. Each of the parties agrees and submits to the jurisdiction of the
State of New York, and further agrees that any action or
proceeding under, in connection with, or relating to this
Agreement shall be brought in and adjudicated by the Supreme
Court of the State of New York in Albany County, or if
applicable, in the Federal District Court, the Northern District
of New York.
D. This Agreement shall be binding and shall inure to the benefit of
the parties hereto and their respective predecessors, heirs,
executors, administrators, successors, permitted assigns, agents
and legal representatives.
E. This Agreement contains the entire agreement of the parties with
regard to the subject matter hereof and supersedes all prior oral
or written understandings, memoranda or communications with
regard to the terms or conditions of Employee's termination of
employment with Employer, except as explicitly stated herein.
F. If any of the terms of this Agreement, with the exception of the
General Releases, is held to be void and unenforceable for any
reason under applicable law, all other terms of the Agreement
shall remain fully valid and enforceable.
G. This Agreement may be executed in counterparts, including
facsimile counterparts, all of which taken together shall
constitute but one Agreement.
I, Xxxx X. Xxxx acknowledge that I have carefully read and fully understand
all the provisions of this Agreement including the General Release contained
herein. I am entering into this Agreement voluntarily. I acknowledge that I have
been advised to consult, and have consulted, an attorney concerning this
Agreement. I have not relied upon any representation or statement, written or
oral, not set forth in this Agreement. I acknowledge that I have been given 21
days in which to consider signing this Agreement. I also acknowledge that if I
sign this Agreement, I will have 7 days thereafter in which to change my mind.
This Agreement shall not be effective until 7 days after I have signed it.
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Employee understands that he may be releasing claims that he may not know
about. This is both parties' knowing and voluntary intent. Employee understands
that he is not releasing any claim that relates to the parties' right to enforce
this Agreement, nor any rights or claims which arise after the signing of this
Agreement.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the date first above written.
EMPLOYER:
IWO Holdings Inc.
/s/ Xxxxxx X. Xxxxxxx
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By: Xxxxxx Xxxxxxx, C.E.O.
Independent Wireless One Corporation
/s/ Xxxxxx X. Xxxxxxx
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By: Xxxxxx Xxxxxxx, C.E.O.
EMPLOYEE:
/s/ Xxxx X. Xxxx, Xx.
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Xxxx X. Xxxx Xx.
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