EXHIBIT 10.3
SEPARATION AGREEMENT AND RELEASE
This Separation Agreement and Release (this "Separation Agreement") is
entered into by Xxxx Xxxxxxxx ("Associate") and Triton Management Company, Inc.
("Employer") on behalf of itself and each of its respective affiliates as set
forth in Exhibit "A" (collectively, the "Triton Affiliates"). As used herein,
"Triton Companies" shall mean Employer and the Triton Affiliates collectively.
RECITALS
WHEREAS, Associate is voluntarily terminating his employment with
Employer; and
WHEREAS, the parties hereto have agreed to the terms of such separation
from employment in accordance with the provisions of this Separation Agreement;
NOW THEREFORE, in exchange for mutual consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound,
the parties hereby agree as follows:
1. SEPARATION DATE. Associate's employment with Employer terminates
effective ten (10) business days after the signing of the Exchange Agreement by
and Among Triton PCS Holdings, Inc., AT&T Wireless Services, Inc. and Cingular
Wireless LLC (the "Exchange Agreement") (the "Separation Date"). As of the
Separation Date, Associate relinquishes all duties, responsibilities and
authority associated with his status as an employee of any Triton Company.
Announcement of Associate's separation from employment will be made by the
Employer on or about the Separation Date.
2. SEPARATION BENEFITS. If Associate remains employed by Employer through
the Separation Date and signs and returns this Separation Agreement no earlier
than the Separation Date and no later than twenty-one (21) days after the
Associate receives a copy of this Agreement, any Triton Company shall provide or
make available to Associate the payments, benefits and rights, less applicable
tax withholding and less deductions required or authorized by law or authorized
by Associate, as described in the following subparagraphs of this Paragraph 2
(the "Separation Benefits").
(a) Associate shall receive all wages, salary and/or commissions
earned by Associate but unpaid through the Separation Date at Associate's
existing rates on the next regularly scheduled payroll date following this date.
(b) Associate shall receive the balance of outstanding Paid Time Off
at Associate's current rate of base pay less applicable payroll taxes, on the
next regularly scheduled payroll date following the Separation Date.
(c) Following the Separation Date, Employer shall pay Associate
severance pay at Associate's rate of base pay paid immediately prior to the
Separation Date, less applicable payroll taxes, paid on Employer's regular
payroll schedule for each payroll period or portion thereof from the Separation
Date through a time period extending for six (6) months following the Separation
Date (the "Severance Period"). Such payments shall commence as of the first
regularly scheduled payroll date after the Effective Date (defined in Xxxxxxxxx
00, xxxxx).
(x) Associate shall remain eligible to participate through the
Separation Date in Employer's 401(k) plan (including with respect to Employer
contributions on Associate's behalf) to the extent permitted under Employer's
plan and under applicable law. Associate will remain eligible to use Employer's
Employee Assistance Plan through the Severance Period. Associate's eligibility
for other employer
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provided employee benefits following the Separation Date will be governed by the
terms of such benefit plans and applicable law.
(e) Coverage under Employer's medical, prescription drug, dental and
vision plans shall continue through the last day of the last month of the
Severance Period at the level of coverage (family, Associate plus spouse,
Associate plus children, Associate and child or single coverage) in effect as of
October 1st, 2004, when the Associate will transition to be the primary insured
under the medical, prescription drug, dental and vision plans.. Employer shall
continue to pay the same portion of the premiums for such continuation coverage
as is paid for similarly situated Associates and shall be deducted from
Associate's severance payments, during the Severance Period. After the Severance
Period, Associate will be eligible to continue benefits through COBRA, but will
be responsible for payment of the full COBRA premiums for such coverage.
Information regarding continuation of benefits under COBRA will be forwarded to
Associate under separate cover before the end of the Severance Period.
(f) Associate is the owner of restricted shares of Class A common
stock of Triton PCS Holdings, Inc., a Delaware corporation ("Triton Holdings"),
that were awarded to Associate from time to time (the "Restricted Stock") on the
terms and subject to the conditions set forth in certain executed letter
agreements with Triton Holdings (the "Awards"). Associate acknowledges and
agrees that in accordance with Triton Company policies, Associate shall continue
to be subject to applicable "blackout" periods for ninety (90) days following
the Separation Period.
(g) Associate shall receive one thousand fifty-five dollars in
compensation which is equivalent to his average mobile phone service for the
term of the
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Separation Period. The payment will be made with any pay due to him on the next
regularly scheduled payroll date following his Separation Date less applicable
payroll taxes.
3. CONSIDERATION. Associate hereby executes this Separation Agreement in
exchange for the Separation Benefits. Associate acknowledges that the Separation
Benefits exceed any compensation and benefits which would otherwise be paid to
him on termination of employment and that the Separation Benefits constitute
complete and adequate consideration for Associate's agreement to enter into this
Separation Agreement. Associate further acknowledges and agrees that the
Separation Benefits constitute the total amount that will be paid to Associate
and that Associate shall receive no further compensation or benefits from any of
the Triton Companies (including without limitation any further salary, bonuses,
severance, or restricted stock awards), except for the reimbursement of any
business expenses incurred by Associate prior to the Separation Date in
accordance with Employer's policies for the reimbursement of business expenses.
4. FURTHER SERVICES.
(a) COOPERATION. Associate agrees that, during the Severance Period,
Associate shall make himself reasonably available either in person or by
telephone to answer questions, provide information and to otherwise provide
services and assistance to the Triton Companies as may be requested from time to
time.
(b) LITIGATION COOPERATION. Associate agrees to provide any of the
Triton Companies with truthful and complete cooperation in litigation matters
arising out of or related to Associate's activities or duties while employed by
any of the Triton
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Companies, whether or not such matters have commenced as of the termination of
Associate's employment.
(c) PERFORMANCE AND PAYMENT. The Company shall use commercially
reasonable efforts to schedule any services requested under this Paragraph at
such times and locations as shall not unreasonably interfere with Associate's
business or personal affairs. Associate agrees that he will provide up to a
maximum of one hundred and twenty (120) hours of additional services following
his Separation Date under this Section without any additional payment or
remuneration for such services (other than reimbursement for expenses as
provided herein). In the event that Associate provides additional services in
excess of the foregoing limitation, he shall be entitled to payment for such
additional services at the rate of Seven Hundred and Seven Dollars ($707) for
each full day (7 hours or more) of service and Three Hundred Fifty-Three Dollars
($353) for each half day (less than seven hours) of service. Associate will be
entitled to reimbursement for the out-of-pocket expenses Associate reasonably
incurs in connection with providing services as provided in this Section.
5. NON-COMPETITION For a period of twelve (12) months following the
Separation Date, the Associate shall not, on the Associate's own behalf or on
behalf of others, directly or indirectly, (whether as an associate, consultant,
investor, partner, sole proprietor or otherwise) be employed by, perform any
services for, or hold any ownership interest in any business engaged in
providing or selling mobile telecommunications services or equipment (including,
without limitation, such services or equipment relating to the transmission of
voice or data and including selling personal communications services or personal
communications equipment, handsets or accessories) in any
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geographic market in which the Company is doing business, or in which the
Company has established plans to do business as of the date of the termination
of the Associate's employment with the Company (such businesses hereafter
referred to as "Competitors"). The Parties acknowledge and agree that the
Associate's performance of services (whether as an employee, consultant,
investor, partner or otherwise) for any person or entity engaged in personal
communications services consulting when the Associates services are provided for
the benefit of, on behalf of or related to a client of such person or entity
which client is a Competitor, shall be considered the indirect performance of
services for a Competitor in violation of this Paragraph 5 and shall be
prohibited hereunder. The above notwithstanding, the ownership, for investment
purposes, of up to one percent (1%) of the total outstanding equity securities
of a publicly traded company, shall not be considered a violation of this
Paragraph 5.
6. NON-SOLICITATION OF TRITON COMPANY EMPLOYEES OR CUSTOMERS. Associate
agrees that for a period of twelve (12) months from the Separation Date,
Associate will not directly or indirectly, alone or as a partner, officer,
director, employee, stockholder or creditor of any entity or business
organization solicit or employ or cause to be solicited or employed, for or on
behalf of Associate or any third party, any persons who are Associates of or
consultants of any Triton Company on the Separation Date or at any time during
the six (6) month period immediately prior thereto. Associate further agrees
that, for a period of twelve (12) months following the Separation Date,
Associate will not directly or indirectly, on Associate's own behalf or on the
behalf of any other person or entity, solicit the business of any entity with
which a Triton Company has an agreement or is in process of entering into an
agreement, as of the Separation Date (a
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"Customer"), to provide services to such entity, provided that the above
restrictions on solicitation of Customers shall only apply to Customers with
which Associate had personal contact, or for which Associate had some
responsibility in the performance of Associate's duties for a Triton Company, or
about which Associate obtained confidential or proprietary information, during
Associate's employment with any Triton Company, and the above restrictions on
solicitation of Customers shall only apply to the solicitation of business
similar to the services provided or to be provided by a Triton Company to such
Customer.
7. RELEASE. In exchange for the commitments of the Triton Companies
provided for herein, Associate, on his own behalf, and on behalf of all his
agents, successors, heirs, legal representatives, all persons, corporations and
other entities that might claim by, through or under him or any of them, hereby
voluntarily releases and discharges each and every Triton Company and their
respective predecessors, successors and assigns, and the current, former and
future directors, officers, partners, members, stockholders, employees,
attorneys and agents of each of them, and the like, and all persons or entities
acting by, through, under or in concert with any of them, and any benefit plan
maintained by any Triton Company (or any plan administrator of any such plan)
(collectively, the "Releasees"), of and from any and all debts, obligations,
claims, demands, judgments or causes of action of any kind whatsoever, known or
unknown, in tort, contract, by statute or on any other basis, for equitable
relief, compensatory, punitive or other damages, expenses (including attorneys'
fees), reimbursements, costs or other relief of any kind, arising on or before
the date Associate signs this Separation Agreement including but not limited to,
any and all claims, demands, rights and/or causes
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of action (the "Released Claims"). Associate acknowledges that the Released
Claims shall include, without limitation, those which might arise out of
allegations relating to a claimed breach of an alleged oral or written
employment contract, or which might arise out of any other alleged restriction
on any Triton Company's right to terminate Associate's employment or duty to
provide advance notice of termination, or relating to purported employment
discrimination, retaliation or civil rights violations, such as, but not limited
to, those arising under Title VII of the Civil Rights Act of 1964 (42 U.S.C.
Section 2000e et seq.), the Civil Rights Acts of 1866 and 1871 (42 U.S.C.
Sections 1981 and 1983), the Age Discrimination in Employment Act of 1967, as
amended (29 U.S.C. Section 621 et seq. ), the Equal Pay Act of 1963 (29 U.S.C.
Section 206(d)(1)), the Rehabilitation Act of 1973 (29 U.S.C. Sections 701-794),
the Civil Rights Act of 1991, the Americans with Disabilities Act of 1990,
Employee Retirement Income Security Act, the Worker Adjustment and Retraining
Notification Act (29 U.S.C. Section 2101 et seq.) or any other applicable
federal, state or local statute or ordinance, which Associate might have or
claim to have on or before the date Associate signs this Separation Agreement,
against any of the Releasees by reason of Associate's employment by any Triton
Company, or the termination of said employment and all circumstances related
thereto.
Associate specifically agrees that the Released Claims include all claims
of any kind or nature whatsoever arising on or before the date Associate signs
this Separation Agreement, including without limitation any and all such claims
that might be cognizable before any arbitrator, federal and/or state agency,
and/or federal and/or state court.
Associate further agrees to waive irrevocably the right to recover under
any claim that may be filed with or by the Equal Employment Opportunity
Commission, any state
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or local fair employment practices agency or any other government entity with
respect to his employment with any Triton Company or the termination thereof.
Associate hereby agrees and recognizes that Associate's employment relationship
has been terminated, that the Triton Companies have no obligation, contractual
or otherwise, to hire or employ Associate in the future, that Associate will not
seek such re-employment and that, if Associate does seek such re-employment, his
application may be rejected.
Associate represents that he has not filed any complaints, charges,
grievances or the like against any of the Releasees with any federal state or
local, court or agency concerning or relating to his employment with any of the
Triton Companies or the termination thereof. Associate represents that he has
not heretofore assigned or transferred, or purported to assign or transfer, to
any person or entity, any claim or any portion thereof or interest therein which
he has against any of the Releasees.
8. NO COMPLAINTS. Associate represents that he has not filed any
complaints or charges or lawsuits against the Triton Companies or any other
Release with any governmental agency or court and Associate has not assigned or
transferred, or purported to assign or transfer, to any person or entity, any
claim or any portion thereof or interest therein Associate has against the
Triton Companies or any other Release. Associate represents that his termination
of employment is not related to any disagreement with the Company relating to
its operations, policies or practices. Associate further represents that he is
not aware of any complaints, charges or lawsuits involving the Triton Companies
and are not aware of any circumstances that could give rise to such complaints,
charges or lawsuits relating to, arising out of or in connection with any act or
omission by the Associate while employed by the Employer except to the
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extent previously disclosed to the chief executive officer. Associate further
represents that he has complied in all material respects with applicable laws in
performing his duties for the Triton Companies.
9. NO DISPARAGEMENT. Associate agrees not to disparage or otherwise make
statements which would injure the business or reputation of any Triton Company,
its officers, directors, executives or other employees. The Chief Executive
Officer, Chief Financial Officer nor the Executive Vice President of Operations
of the Company will make any disparaging statements about the Associate and will
not authorize, encourage, or participate with anyone to make such statements.
The parties agree that statements made by employees of the Company, including
those noted above, as part of any internal evaluations, analysis and operations
of the Company in the ordinary course of business shall not be considered to
violate the restrictions of this Paragraph 9.
10. RETURN OF PROPERTY; INTELLECTUAL PROPERTY RIGHTS. Associate agrees
that, on or before the Separation Date, Associate shall return to the
appropriate Triton Company all property owned by each such company and all
property containing information relating to any such company or in which any
such company has an interest, including, for example, files, documents, data and
records (whether on paper or in tapes, disks or other machine-readable form or
otherwise and whether or not prepared by Associate in whole or in part), office
equipment, telephone calling cards, credit cards and employee identification
cards made available to or prepared or compiled by Associate (in whole or in
part) during Associate's employment with any Triton Company. Associate
acknowledges that Employer or an applicable Triton Company is the rightful owner
of any programs, ideas, inventions, discoveries, copyright material or
trademarks which
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Associate may have originated or developed, or assisted in originating or
developing, during Associate's period of employment with any Triton Company or,
where any such origination or development involved the use of company time or
resources, or the exercise of Associate's responsibilities for or on behalf of
any such Triton Company.
11. PROPRIETARY INFORMATION. Associate shall at all times preserve the
confidentiality of all Proprietary Information and trade secrets of any and all
Triton Companies. "Proprietary Information" means information that has not been
disclosed to the public, and which is treated as confidential within the
business of any Triton Company or is of particular value to any such company in
the competitive marketplace. Proprietary Information includes, but is not
limited to, information, as described in the previous sentence, which gives any
Triton Company an opportunity to obtain or maintain advantages over its current
and potential competitors, such as strategic or tactical business plans;
financial or market data; ideas, processes, methods, techniques, systems,
models, devices, programs, computer software or related information; documents
relating to regulatory matters and correspondence with governmental entities;
pricing and cost data; reports and analyses of business prospects; information
pertaining to business transactions which are contemplated or planned; research
data; personnel information and data; identities of users and purchasers of any
Triton Company's products or services; and other confidential matter pertaining
to or known by one or more Triton Companies, including confidential information
of a third party which any Triton Company is bound to protect.
12. REMEDIES. Associate acknowledges that irreparable injury will result
to Employer and the other Triton Companies, and to their respective businesses,
in the event
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of any breach or threatened breach by Associate of any of Associate's
representations, covenants or commitments under this Separation Agreement. In
the event of a breach or threatened breach by Associate of any of the
representations, covenants or commitments under this Separation Agreement,
Employer and any affected Triton Company shall be entitled, in addition to any
other remedies and damages available, to injunctive relief to restrain the
violation of such covenants by Associate or by any person acting for or with
Associate in any capacity whatsoever. In the event of a breach or threatened
breach of any of Associate's representations, covenants or commitments under
this Separation Agreement, in addition to any Triton Company's rights to pursue
injunctive relief as described above and to pursue other remedies and to seek
damages, Associate shall forfeit the Separation Benefits, and shall have an
obligation to immediately repay any Separation Benefits previously received. As
a further material inducement to the Triton Companies to enter into this
Separation Agreement, Associate agrees, to the extent permitted by law, to
indemnify and hold each and all of the Releasees harmless from and against any
and all loss, costs, damages or expenses, (including without limitation,
attorneys' fees and litigation expenses) in the event it becomes necessary for
any of the Releasees to defend any claim or claims brought by Associate which
have been released by this Separation Agreement.
13. REVIEW PERIOD AND REVOCATION. Associate represents and acknowledges
that Associate has been given a period of twenty-one (21) days to consider this
Separation Agreement and that Associate has read this Separation Agreement,
understands the terms of the Separation Agreement and has been given an
opportunity to ask questions about it. Associate has been advised to consult
with an attorney prior to
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signing this Separation Agreement; whether Associate chooses to do so is his
decision. Associate further represents that in signing this Separation Agreement
Associate does not rely, and has not relied, on any representation or statement
not set forth in this Separation Agreement made by any representative of
Employer or any other Releasee with regard to the subject matter, basis or
effect of this Separation Agreement or otherwise. This Separation Agreement is
knowingly and voluntarily entered into by all parties hereto. For a period of
seven (7) days after the date Associate signs this Separation Agreement,
Associate has the right to revoke this Separation Agreement by delivering a
written notice of revocation to Xxxxx Xxxxxx, Senior Vice President of Human
Resources, at 0000 Xxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxxxx 00000 by close of business
(5:00 p.m. EST) on the seventh day after Associate signs this Separation
Agreement. This Separation Agreement shall not be effective or enforceable and
Associate shall not be entitled to receive any of the Separation Benefits until
the eighth (8th) day after the date Associate signs this Separation Agreement
and Associate has not revoked this Separation Agreement during such seven (7)
day revocation period and provided that Associate has signed this Separation
Agreement on or after the Separation Date and no more than twenty-one (21) days
after Associate receives a copy of this Separation Agreement (the "Effective
Date").
14. APPLICABLE LAW. This Separation Agreement shall be interpreted and
enforced in accordance with the laws of the State of Pennsylvania without regard
to principles of conflicts of laws and without regard to any rule of
construction or interpretation as to which party drafted this Separation
Agreement.
15. CONSENT TO JURISDICTION. Each of the parties hereby consents to the
exclusive jurisdiction of any Pennsylvania state or federal court with respect
to any suit,
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action or proceeding relating to this Separation Agreement or any of the
transactions contemplated hereby.
16. SEVERABILITY. If any clause, phrase or provision of this Separation
Agreement, or the application thereof to any person or circumstance, shall be
invalid or unenforceable under any applicable law, this shall not affect or
render invalid or unenforceable the remainder of this Separation Agreement.
17. SUCCESSORS AND ASSIGNS. This Separation Agreement shall be binding on
Associate and Associate's heirs, administrators, representatives, executors,
successors, and assigns, and shall inure to the benefit of the Triton Companies
and their representatives, predecessors, successors and assigns.
18. ENTIRE AGREEMENT. This Separation Agreement sets forth the entire
understanding of the Triton Companies and Associate and supersedes all prior
agreements, arrangements, and communications, whether oral or written,
pertaining to the subject matter hereof except for: (i) any Restricted Stock
Award entered into by Associate; or (ii) any Non-Compete, Non-Solicitation and
Confidentiality Agreement or other agreement containing any similar sort of
restrictive employment covenant (the "Restrictive Covenants"), entered into by
Associate in connection with a restricted stock award by a Triton Company or
otherwise, to the extent that the Restrictive Covenant(s) provide any greater
protection for any Triton Company than are provided for in this Separation and
Release Agreement. This Separation Agreement may not be modified or amended
except by a written agreement signed by the parties hereto. A waiver of any
provision of this Separation Agreement must be in writing and signed by the
party making the waiver. Any waiver by any of the Triton Companies of a breach
of any
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provision of this Separation Agreement shall not operate as, or be construed to
be, a waiver of any other breach of such provision of the Separation Agreement.
The failure of any of the Triton Companies to insist on strict adherence to any
term of this Separation Agreement on one or more occasions shall not be
considered a waiver or deprive the Triton Company of the right thereafter to
insist on strict adherence to that term or any other term of this Separation
Agreement.
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STATEMENT BY ASSOCIATE WHO IS SIGNING BELOW:
THE TRITON COMPANIES HAVE ADVISED ME IN WRITING TO CONSULT WITH AN
ATTORNEY PRIOR TO EXECUTING THIS SEPARATION AGREEMENT. I HAVE BEEN GIVEN A
PERIOD OF UP TO TWENTY-ONE (21) DAYS TO CONSIDER THIS SEPARATION AGREEMENT
BEFORE SIGNING AND A PERIOD OF SEVEN (7) DAYS TO REVOKE THIS AFTER
SIGNING. I HAVE CAREFULLY READ AND FULLY UNDERSTAND THE PROVISIONS OF THIS
SEPARATION AGREEMENT AND HAVE HAD SUFFICIENT TIME AND OPPORTUNITY TO
CONSULT WITH MY PERSONAL TAX, FINANCIAL AND LEGAL ADVISORS PRIOR TO
SIGNING THIS DOCUMENT, AND I INTEND TO BE LEGALLY BOUND BY ITS TERMS. I AM
ENTERING INTO THIS SEPARATION AGREEMENT ON A KNOWING AND VOLUNTARY BASIS.
I UNDERSTAND THAT MY RIGHT TO RECEIVE CERTAIN PAYMENTS AND BENEFITS
HEREUNDER IS CONTINGENT ON MY SIGNING THIS SEPARATION AGREEMENT AND NOT
REVOKING MY AGREEMENT HEREUNDER.
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THE UNDERSIGNED, intending to be legally bound, have executed this
Separation Agreement as of the dates indicated below.
Associate: /s/Xxxx Xxxxxxxx
--------------------------------------------------
Xxxx Xxxxxxxx
Date of Signature: _____9/27/04_____________
Employer:
Triton Management Company, Inc.
/s/ Xxxxx Xxxxx
--------------------------------------------------
Xxxxx X. Xxxxx
Executive Vice-President & Chief Financial Officer
Date of Signature ____9/27/04______________
[SIGNATURE PAGE TO SEPARATION AGREEMENT AND RELEASE]
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Exhibit "A"
Triton Affiliates
Triton PCS Holdings, Inc.
Triton PCS, Inc.
Triton PCS Holdings Company L.L.C.
Triton PCS License Company L.L.C.
Triton PCS Operating Company L.L.C.
Triton PCS Property Company L.L.C.
Triton PCS Equipment Company L.L.C.
Triton PCS Finance Company, Inc.
Triton PCS Investment Company, L.L.C.
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