Exhibit 10.52
SEVERANCE AGREEMENT AND FULL GENERAL RELEASE
This Severance Agreement and Full General Release ("Agreement") is made
and entered into on this 16th day of December, 1998, by and between Advanced
Communications Group, Inc. ("Company"), a Delaware corporation, and Xxxxxxx
X. Xxxxxxx ("Executive").
WHEREAS, Executive was employed by Company under the terms of an Amended
and Restated Employment Agreement, a copy of which is attached hereto as
Exhibit A ("Exhibit A" or the "Employment Agreement). Unless otherwise
defined herein, capitalized terms herein shall have the same meanings as in
the Employment Agreement; and
WHEREAS, Executive's employment with Company ended on November 9, 1998,
under Section 6.1 (f) of the Employment Agreement; and
WHEREAS, Company and Executive wish to settle any disputes existing
between them.
NOW THEREFORE, in consideration of the mutual promises, agreements and
releases contained in this Agreement, the parties agree as follows:
A. COMPANY'S AGREEMENT
Except as specifically provided under the terms of this Agreement, all
other obligations of Company under the Employment Agreement shall
cease. In exchange for this Agreement, Company agrees to provide
Executive the following benefits, beginning upon the Effective Date of
this Agreement as provided under Section E hereof:
1. Two Hundred Fifty Thousand Dollars ($250,000.00), payable in a lump
sum on the Effective Date of this Agreement in satisfaction of the
Company's obligation to pay Executive his Base Salary for a one (1)
year period under Section 6.1(f) of the Employment Agreement;
2. The transfer of ownership to Executive of the Company computer
currently in Executive's possession;
3. The right to exercise the Three-Hundred Fifty Thousand (350,000)
Remaining Options, which Company acknowledges are fully vested,
according to the terms of an amendment to Company's Nonqualified
Stock Option Agreement by and between the Company and Executive and
dated as of the date of the Agreement ("NSO Agreement"), a copy of
which amendment is attached hereto as Exhibit B; and
4. The right to exercise the One Hundred Fifty Thousand (150,000)
Three-Month Options awarded in Section 3.4 of the Employment
Agreement through November 8, 2001;
5. Through November 8, 1999, Company-paid health insurance under the
terms of a group health insurance plan of Company; and
6. One-Hundred Four Thousand One Hundred Twenty-Five Dollars
($104,125.00) as severance, payable within five (5) business days
following the Effective Date of this Agreement.
The procedure for Executive exercising the Three-Month Options and
the Remaining Options shall be that procedure set forth in the NSO
Agreement, as amended by this Agreement. All payments made under
this Agreement will be by check payable to Executive or by direct
deposit to an account designated in writing by Executive.
B. EXECUTIVE'S AGREEMENTS
1. FULL AND GENERAL RELEASE OF LIABILITY
Executive hereby releases Company and its officers, directors,
employees, agents, insurers, successors, parents, subsidiaries,
partnerships, joint ventures, and all affiliated companies (the
"Released Parties") from any and all claims and demands of any kind,
known or unknown, which he may have against Company or any of the
Released Parties as of the date he signs this Agreement, or which he
may have had at any time before the date of signing. Executive
understands that he is releasing Company and all of the Released
Parties, to the maximum extent permissible by law, from any
liability which Executive believes Company or any of the Released
Parties may have had to him, at any time up to and including the
date he signs this Agreement. This release includes a waiver (a
giving up of) any legal rights or claims Executive may have or may
have had, including claims of race, color, national origin, sex or
gender, age, or disability discrimination, arising under Title VII
of the Civil Rights Act of 1964, the Rehabilitation Act of 1973, the
Civil Rights Act of 1866 (Section 1981), the Americans with
Disabilities Act of 1990, the Employee Retirement Income Security
Act of 1974, the Age Discrimination in Employment Act, the Family
and Medical Leave Act of 1993, the Missouri Service Letter Statute,
the Missouri Human Rights Act, the Texas Employment Discrimination
Law, the Employment Agreement, and under any other federal, state or
local statute, regulation, or the common law of any state, including
but not limited to any and all claims in tort or contract, to the
maximum extent permitted by applicable law, except as otherwise
specifically provided in this Agreement. This release shall not
preclude Executive from being indemnified by Company with respect to
his acts or omissions on behalf of Company during his employment by
Company.
Company hereby releases Executive from any and all claims and
demands of any kind, known or unknown, which Company may have had
against Executive as of the date Company signs this Agreement, or
which Company may have had at any time before the date of signing,
to the maximum extent permitted by applicable law.
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2. RESIGNATION FROM COMPANY AND AFFILIATES
(a) Executive agrees his employment with Company was terminated as
of November 9, 1998. Executive further agrees to voluntarily
resign as an officer, chairman, and as a member of the Board of
Directors of any subsidiary or affiliate of Company (including,
but not limited to, KIN Network, Inc. and Liberty Cellular,
Inc.). Executive will resign from the Board of Directors of
Company on the Effective Date of this Agreement. Such
resignation shall be in the form attached hereto as Exhibit C-1
and Exhibit C-2 shall be executed by Executive, and a signed
original of such resignation shall be returned to counsel for
Company (as set forth in Section E) with the signed original of
this Agreement and of the NSO Agreement.
(b) Executive acknowledges he is not entitled to future employment
with or to provide consulting services to Company or to its
successors, assigns, subsidiaries or affiliates, except as
provided for in this Agreement.
(c) Executive acknowledges that as of the Effective Date, Executive
has filed or caused to be filed all reports required to be
filed under Section 16 of the Exchange Act of 1934, as amended,
and that he has not engaged in any transactions which would
require the filing of Form 4 by February 15, 1999. Executive
agrees that he will promptly inform Company if he engages in a
transaction in Company's Common Stock which, because of
transactions prior to the date hereof, would require the filing
of a Form 4 or Form 5.
3. ADEQUACY OF CONSIDERATION
Executive acknowledges that the benefits provided by Company under this
Agreement are adequate consideration for Executive's execution of this
Agreement and all attachments hereto, and further acknowledges that the
sum is in excess of any amounts to which he may otherwise be entitled
under existing policies or practices of Company or under the Employment
Agreement.
4. SURVIVING OBLIGATIONS UNDER EMPLOYMENT AGREEMENT
(a) Executive understands and agrees that all obligations of
Company under the Employment Agreement have been released,
other than as expressly set forth in this Agreement.
Notwithstanding that Company's obligations have been released,
Executive agrees that, in accordance with Section 6.2 of the
Employment Agreement, he is not relieved of any continuing
obligations at cessation of his employment expressly provided
for in the Employment Agreement, including, but not limited to,
those set forth in Section 5 (Protection of Confidential
Information and Executive Non-
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Competition). Executive agrees that the provisions of Section
5.1 shall apply for three (3) years following the Effective
Date of this Agreement and the provisions of Section 5.5(ii)
shall apply for one (1) year following the Effective Date of
this Agreement. Company acknowledges that the provisions of
Section 5.5(i) and (iii) of the Employment Agreement shall
terminate upon the Effective Date of this Agreement.
(b) Executive agrees that as of the Effective Date, he shall return
all Company property not previously returned to Company,
pursuant to Section 7 of the Employment Agreement.
(c) Executive shall not take any action inconsistent with
Executive's relationship and responsibilities as a current Board
member or as a former employee and executive of Company and its
subsidiaries and affiliates, or take any action which is
intended, or may be reasonably expected, to harm the
reputation, business, prospects, or operations of Company or its
subsidiaries or affiliates, including, but not limited to,
making any disparaging remarks about Company, its subsidiaries
and affiliates, and their respective officers, directors or
employees. To that end, Executive shall continue to (i)
cooperate and assist in the orderly transition of management
when reasonably requested by Company or its subsidiaries or
affiliates including execution of any minutes or other
appropriate documents, and (ii) cooperate and assist Company
and its subsidiaries and affiliates in any pending, threatened
or new litigation, and in any investigation or audit by any
governmental entity, including but not limited to, providing
truthful information to Company (and its subsidiaries or
affiliates) representatives, Company (and its subsidiaries or
affiliates) attorneys, and governmental investigators (if
required by applicable law). Company shall make reasonable
efforts to prevent disparaging remarks about Executive.
Executive agrees not to make disparaging remarks about the
Company, its officers, directors or employees or with regard to
his association with Company.
(d) Company agrees not to release or make public any information
referring directly or indirectly to the reasons for the
Executive's termination of employment as an employee and
officer or his resignation as a director or to the terms of
this Agreement, except as may be required by applicable law or
regulation or pursuant to any securities exchange or stock
exchange rule or regulation or in connection with any lawsuit
or arbitration proceeding. Without in any manner limiting
the right of the Company to make the disclosures it is required
to make as set forth in the immediately preceding sentence and
anything to the contrary herein notwithstanding, Executive
acknowledges and agrees that the Company is required to, and
the Company will (i) issue a press release announcing
Employee's resignation from the Board, (ii) file the Agreement
as an exhibit to
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filings the Company is required to make pursuant to Section 13
of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") and the rules promulgated thereunder, (iii)
file the Agreement as an exhibit to filings the Company may
make pursuant to the Securities Act of 1933, as amended, and
(iv) describe the terms of the Agreement (x) in the Company's
proxy statement for its 1999 Annual Meeting as required by
Section 14 of the Exchange Act and the rules, regulations and
schedules promulgated thereunder and (y) in the Company's
Annual Report on Form 10-K for the fiscal year ending 1998 as
required by Section 13 of the Exchange Act and the rules and
regulations promulgated thereunder.
C. NO ADMISSION OF LIABILITY
Executive acknowledges that this Agreement shall not in any way be
construed as an admission of any liability on the part of Company,
its subsidiaries, affiliates, officers, directors, or employees and that
all such liability is expressly denied by Company and such individuals
and entities.
D. VOLUNTARY NATURE OF AGREEMENT AND ADVICE OF COUNSEL
Executive acknowledges that he has read this Agreement and any attached
exhibits, understands their terms, and signs the Agreement voluntarily
of his own free will, without coercion or duress, and with full
understanding of the significance and binding effect of the Agreement.
Executive is hereby advised to consult with his attorney before signing
this Agreement.
E. CONSIDERATION PERIOD AND REVOCATION
Executive received this Agreement on December 16, 1998. Executive
acknowledges that he has had a reasonable period of time, and has had
adequate opportunity, to consider the terms of the Agreement and whether
to enter into the Agreement. Executive has twenty-one (21) calendar
days, after the date Executive received the Agreement, within which to
consider the Agreement, although he may sign and return it sooner if he
desires. Executive may revoke the Agreement, by delivering a written
notice of revocation to Xxxxxx X. Xxxx, Esquire, Xxxxxxxxx Xxxxxxx
Xxxxx Xxxxxx, LLP, 000 Xxxxx Xxxxxx, Xxxxx 0000, Xx. Xxxxx, Xxxxxxxx
00000, within seven (7) calendar days after Executive signs the
Agreement. The Agreement will become effective and enforceable
immediately after the seven (7) day revocation period expires (the
"Effective Date"), if Executive has not revoked this Agreement prior to
that time. Exhibits B and C to this Agreement must be executed and not
revoked by Executive for this Agreement or Exhibits B and C to be
effective and enforceable.
F. BINDING EFFECT
This Agreement will be binding upon Executive and his heirs,
administrators, representatives, executors, successors and assigns, and
will inure to the benefit of
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Company and its successors and assigns, except any services may only be
performed by Executive.
G. NO LIENS
Executive represents and warrants that there are no existing or
outstanding attorneys' liens or other liens which are not extinguished
or satisfied by the execution of this Agreement. Executive agrees to
indemnify and hold harmless Company for any liability in connection
with such liens.
H. REMEDIES FOR BREACH
If Executive breaches any term of this Agreement, any payments under
this Agreement which would otherwise become payable subsequent to the
date of such breach, shall cease and terminate, and in the event any
such payments have been prepaid, any amount so prepaid shall be
immediately returned to the Company. Company may also pursue any other
remedies available at law and equity, including, but not limited to,
recovery of its costs and attorneys' fees.
I. GOVERNING LAW
This Agreement will be interpreted and enforced in accordance with the
laws of the State of Missouri, without giving effect to the conflict of
law provisions thereof.
J. SEVERABILITY
Should any provision of this Agreement be declared or determined by a
court of competent jurisdiction or arbitrator, as the case may be, to be
invalid or otherwise unenforceable, the remaining parts, terms and
provisions shall continue to be valid, legal and enforceable, and will
be performed and enforced to the fullest extent permitted by law.
K. COMPLETE AGREEMENT
Except as provided for herein, this Agreement (which includes Exhibits
A, B and C) contains the entire agreement between Executive and Company
and supersedes all prior agreements or understandings between them on
the subject matters of this Agreement. No change or waiver of any part
of the Agreement will be valid unless in writing and signed by both
Executive and Company. Except where the context requires a different
interpretation to effectuate the purposes of this Agreement, the term
"Agreement" means this Agreement and all exhibits to this Agreement.
L. MEDIATION AND ARBITRATION
Actions by Company to enforce Section 5 of the Employment Agreement
shall be in accordance with the provisions set forth in Section 5.7 of
the Employment Agreement. Actions by Company to enforce Section 7 of the
Employment Agreement shall be
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through court action in a court of competent jurisdiction, unless
otherwise agreed to by Company. Except for actions by Company seeking to
enforce the provisions of Sections 5 or 7 of the Employment Agreement,
any dispute, controversy, or claim brought by Company or Executive
concerning or related to this Agreement (inclusive of all exhibits
hereto), shall be settled in the following manner. One party shall
notify the other party in writing that there is a dispute, controversy,
or claim, and shall provide fifteen (15) days' notice to the other
party to resolve such dispute, controversy, or claim. If the dispute,
controversy, or claim is not resolved in such fifteen (15) day period,
the party initiating the dispute, controversy or claim shall obtain a
list of three (3) mediators from U.S. Arbitration & Mediation Midwest,
Inc. or its successor. Each party, beginning with the party initiating
the dispute, controversy, or claim, shall strike one mediator from the
list. The remaining mediator shall then be contacted to schedule a
mediation in St. Louis, Missouri or such other place as is agreed upon
by the parties. If the mediation is unsuccessful in resolving the
dispute, controversy, or claim, such matter shall then be resolved by
binding arbitration in St. Louis, Missouri or such other place as is
agreed upon by the parties, in accordance with the Employment Dispute
Resolution Rules of the American Arbitration Association. Judgment upon
the award rendered by the arbitrator may be entered in any court having
jurisdiction. In reaching his or her decision, the arbitrator shall have
no authority to change or modify any provision of this Agreement. The
cost of the mediation and arbitration shall be borne equally by the
parties; attorneys' fees and witness expenses shall be borne by the
party incurring them.
M. COOPERATION
Each party agrees to reasonably cooperate with the other party or
their agents in taking all steps necessary to effectuate the
purposes of this Agreement and any exhibits to this Agreement,
including but not limited to, executing documents and providing
information when reasonably requested by the other party.
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THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED
BY THE PARTIES.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and
year first above written.
Advanced Communications Xxxxxxx X. Xxxxxxx
Group, Inc.
By /s/ Xxxxx Xxxxx
--------------------- /s/ Xxxxxxx X. Xxxxxxx
------------------------ ----------------------
Name Xxxxx Xxxxx
-------------------
Title EVP
-------------------
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