Exhibit 10.17
SEVERANCE AGREEMENT AND GENERAL RELEASE
This Severance Agreement and General Release (this "Agreement") is entered
into by and between Xxxxx X. Xxxxxxx (including all successors, assigns and
heirs, "Employee") and Centennial Communications Corp., and any and all of its
affiliates, subsidiaries, predecessors, successors and assigns and any of its
employees, directors, officers and shareholders (collectively "Employer").
RECITALS
A. Employee resigned as an officer of Employer effective August 31,
2002 (the "Resignation Date").
B. Employee and Employer wish to permanently resolve any and all claims
and disputes, whether known or unknown, which exist or may exist on
Employee's behalf, including but not limited to any claims arising
out of Employee's employment with Employer and the termination of
that employment.
NOW THEREFORE, in exchange for the consideration, covenants and promises
contained herein, the receipt and sufficiency of which is hereby acknowledged,
Employer and Employee agree as follows:
1. Employer shall pay Employee the amounts set forth on Exhibit 1
hereto, subject to applicable tax withholdings. Employee
acknowledges that Employee has been paid for any and all allowances
or payments due and owing to Employee at the Resignation Date.
Except as expressly provided herein, Employee acknowledges that he
is not entitled to receive any vacation accrual or other payments or
benefits after the Resignation Date.
2. Effective on the Resignation Date, Employee will cease to
participate in any Employer sponsored plans and benefits, including
without limitation any employee stock option plan, employee stock
purchase plan and 401(k) plan. All funds previously contributed to
any stock purchase plan will be returned to Employee in accordance
with the terms of such plan.
3. Employee hereby irrevocably fully waives, releases, acquits and
forever discharges Employer from any and all claims, charges,
complaints, liabilities, allegations, demands, injuries, debts,
breaches, violations, acts or omissions and causes of action, known
or unknown, suspected or unsuspected, past or present, foreseen or
unforeseen, in law or in equity which Employee now has, ever had or
may hereafter have against Employer arising out of, directly or
indirectly, or in any way relating to, Employee's employment with
Employer or the termination of such employment, including any claims
pursuant to any local, state, federal, or other laws, including
without limitation, Puerto Rico and Dominican
Republic laws (collectively, "Claims").
4. Employee further covenants not to, directly or indirectly, bring any
such Claims against Employer. Employee represents to Employer that
he is the sole owner of any and all Claims that he is relinquishing
by executing this Agreement and that no other person has any
interest in any such Claims. Employee acknowledges that he has had
the benefit of advice of competent legal counsel with respect to the
decision to enter into this Agreement.
5. Employee represents and warrants to Employer that on or prior to the
date hereof, Employee has (except as otherwise provided herein) (i)
returned to Employer all keys, vehicles, computers, telephones,
beepers, inventory and/or any other property of Employer including
any and all confidential and proprietary information that is in
Employee's possession or control and will make no further use of
same after the date hereof and (ii) repaid Employer all amounts
owing to Employer on account of advances and other expenses.
6. Employee understands, acknowledges and agrees that he is waiving any
and all Claims, which include without limitation, claims of wrongful
discharge, breach of contract, lost wages, emotional distress,
claims under Title VII of the Civil Rights Act of 1964, the Civil
Rights Act of 1991, the Age Discrimination in Employment Act, as
amended, the Americans with Disabilities Act, the Federal
Rehabilitation Act of 1973, Employee Retirement Income Security of
1974, as amended, the Equal Pay Act of 1963, claims of unjustified
dismissal (Law 80 of May 30, 1976); benefits of any kind, damages of
any kind, any claim on wages under Puerto Rico's Civil Code; all
claims involving violations of the Employer's rules, policies and
procedures; wage and salary claims; Act No. 96 of June 26, 1956; Act
Xx. 000 xx Xxxx 00, 0000, Xxx No. 289 of 1946; Act No. 180 of July
27, 1998; Act No. 84 of August 1, 1995; Act No. 379 of May 15, 1948
and Act No. 148 of June 30, 1969; discrimination on account of sex,
religion, race, age, political ideas, social condition or origin,
national origin, disability or any other reason prohibited by Puerto
Rico Act Xx. 000 xx Xxxx 00, 0000, Xxxxxx Xxxx Xxx Xx. 00 xx 0000,
Xxxxxx Xxxx Act Xx. 00 xx Xxxxx 00, 0000, Xxxxxx Xxxx Act No. 3 of
March 13, 1942, the Constitution of the Commonwealth of Puerto Rico,
and any other Civil Rights laws; Family and Medical Leave Act;
Federal Rehabilitation Act of 1973; ADEA, the Americans with
Disabilities Act of 1990, Puerto Rico Act Xx. 00 xx 0000; Xxxxxx
Xxxx Xxx No. 115 of December 20, 1991; the Workers' Compensation Law
of Puerto Rico; Puerto Rico Act Xx. 00 xx Xxxxx 00, 0000; Xxxxxx
Xxxx Xxx Xx. 000 xx Xxxx 00, 0000 (XXXXX); the Insurance Code of
Puerto Rico; the Occupational Safety and Health Act (OSHA); Puerto
Rico Safety and Health Act of 1975 (PROSHA); the Consolidated
Omnibus Budget Reconciliation Act of 1985 ("COBRA");
the Health Insurance Portability and Accountability Act of 1996; or
under any other federal, state or Commonwealth of Puerto Rico law,
including Article 1802 of the Civil Code of Puerto Rico and all
statutes on libel and defamation and further including without
limitation any other federal, state or local laws and regulations
relating to employment and/or employment discrimination, including
any Commonwealth of Puerto Rico laws.
7. Each party hereto promises and agrees that, unless compelled by
legal process, it will not disclose to any third party (including,
without limitation, any present or former employee of Employer) and
will keep confidential the fact or terms of this Agreement,
including without limitation the amounts referred to in this
Agreement. Each party hereto may disclose the terms contained herein
to attorneys, accountants, immediate family members and other
professional advisors to whom the disclosure is necessary to
accomplish the purposes for which such party has contacted such
advisors. The parties agree that this Agreement may be filed
publicly with the Securities and Exchange Commission.
8. Employee acknowledges that due to the position Employee has occupied
and the responsibilities Employee has had while employed by
Employer, Employee has received confidential and proprietary
information concerning Employer. Employee hereby promises and agrees
that, unless compelled by legal process, Employee will not disclose
to any third party and will keep confidential all such confidential
and proprietary information received, developed or learned by
Employee while employed by Employer, including without limitation
information concerning Employer's products, procedures, policies,
customers, sales, prices, financial information, technical
information, network information, employee information, marketing
strategies, and the terms of Employer's contracts with third
parties.
9. Employee agrees that for a period of two years from the Resignation
Date, he will not directly or indirectly induce or attempt to induce
any employee of the Employer to leave the employ of the Employer or
in any way interfere with the relationship between the Employer and
any employee thereof. Employee agrees that he will not now, or in
the future, deliberately disrupt, damage, injure or interfere with
the business of Employer.
10. Employee agrees that he will not now, or in the future, make any
disparaging statements (whether oral or written) concerning
Employer.
11. In exchange for the consideration to be received by Employee
hereunder, which Employee expressly acknowledges is sufficient and
satisfactory, Employee agrees that for a period of one year from the
date hereof, Employee agrees that he will not, directly or
indirectly, own, manage,
control, participate in, consult with, render services for or in any
manner engage in any business in the Service Area (as defined below)
which shall compete with any business conducted by the Employer on
the date hereof. For purposes ` of this covenant, the term Service
Area means all geographic areas in which Employer operates on the
date hereof. Employee acknowledges that he fully understands the
scope and meaning of this non-compete provision and agrees that it
is reasonable in light of the circumstances.
12. Employee hereby acknowledges and agrees that a violation of Section
8, 9, 10, 11 or 12 will cause irreparable injury to Employer and
Employer will be entitled, in addition to any other rights and
remedies Employer may have at law or in equity, to seek an
injunction enjoining and restraining Employee from doing or
continuing to do any such violative act.
13. This Agreement and any documents referred to herein shall, in all
respects, be interpreted, enforced, and governed by and under the
laws of the State of New Jersey.
14. Employee acknowledges that nothing herein shall be interpreted to be
an admission of liability by Employer.
15. Employee agrees that all covenants contained in this Agreement shall
survive its execution.
16. If any provision of this Agreement is deemed to be invalid or
unenforceable, the remainder of the Agreement shall not be affected,
and a suitable and equitable provision shall be substituted for the
invalid and unenforceable provision in order to carry out, as far as
may be valid and enforceable, the intent and purpose of such invalid
or unenforceable provision.
17. Employee acknowledges and agrees that no promises or representations
were made to Employee by any person which do not appear written
herein and that Employee has not relied on any such promise or
representation. This Agreement contains the entire agreement of the
parties on the subject matter thereof. This Agreement may not be
modified except by a writing signed by the parties or as provided in
paragraph 16. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original copy of
this Agreement with signatures by fax counting for all purposes as
original signatures.
18. Employee hereby acknowledges that Employee has read and understands
this Agreement and that Employee signs this Agreement voluntarily,
with full knowledge of any and all rights which he may have, and
without
coercion and was given the opportunity to review this Agreement with
her attorney. Employee further acknowledges that the waivers
Employee has made in this Agreement are knowing, conscious and
voluntary and are made with full appreciation that Employee is
forever foreclosed from pursuing any of the claims so waived. After
having sufficient time to carefully read all the terms and
conditions of this Agreement, Employee affirms that he completely
understands the same, as well as their consequences. Employee
acknowledges that he has been informed that he can, and must, seek
legal counsel before signing this Agreement, and that a reasonable
time of at least twenty-one (21) days has been given to seek such
legal counsel. The parties agree that Employee has a period of seven
(7) days from the date this Agreement is signed to revoke the same.
For such reason, the parties agree that any payments to be made to
Employee hereunder will be made after the seven (7) day period has
expired.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date set forth below.
SEPTEMBER 1, 2002
CENTENNIAL COMMUNICATIONS CORP.
By: /s/ Xxxxxxx X. Small
--------------------
Name: Xxxxxxx X. Small
Title: Chief Executive Officer
XXXXX X. XXXXXXX
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Name: Xxxxx X. Xxxxxxx
EXHIBIT 1
1. Side Letter. Benefits and other compensation described in letter
agreement dated September 1, 2002 and attached hereto.
2. Vacation. Earned and unused vacation will be paid to Employee as
soon as reasonably practicable after the date hereof.
3. Personal Property. Employee shall be permitted to maintain
possession of his wireless telephone and laptop computer. Employee
will begin paying monthly changes on his wireless phone, effective
November 1, 2002.
4. Outplacement Services. Employer will reimburse Employee's reasonable
and documented outplacement services expenses incurred by Employee
until the earlier to occur of (i) August 31, 2003 or (ii) the date
when Employee accepts employment with a subsequent employer.
5. Medical Benefits. Employer will continue to cover Employee under its
medical and dental benefits programs in accordance with prior
practice and subject to customary Employee contributions until the
earlier to occur of (i) August 31, 2003 or (ii) the date that
Employee has obtained similar benefits from a subsequent employer.
6. Bonus. Employee shall be eligible to receive a bonus of $31,250, in
the event Employer generates certain financial results for the
quarter ending August 31, 2002. Such bonus shall be paid (if at all)
in the same manner as is paid to other eligible employees.
7. Financial Assistance. Employee will continue to receive
reimbursement of reasonable and documented financial assistance
expenses in accordance with prior practice until August 31, 2003.
CENTENNIAL COMMUNICATIONS CORP.
September 1, 2002
Dear Xx. Xxxxxxx:
This letter is being delivered to you in connection with the Severance Agreement
and General Release (the "Release Agreement") dated the date hereof. Capitalized
terms used herein and not defined herein have the meanings given to such terms
in the Release Agreement.
Notwithstanding any provision in the Release Agreement to the contrary, during
the period of time from the Resignation Date up to and including August 31, 2003
(the "Transition Period"), Employee shall continue as an employee of Employer.
In consideration for the services to be performed by Employee to Employer during
the Transition Period, Employee shall continue to receive payment of his base
salary of $205,000 per annum in accordance with past practice. In addition,
during the Transition Period, Employee may exercise any stock options in
accordance with the terms of his option agreement. Except as expressly provided
herein or in the Release Agreement (including the exhibits), Employee shall be
entitled to no other compensation or other payments from Employer.
Employee has voluntarily elected during the Transition Period that he does not
wish to participate in Employer's 401K plan, stock purchase plan or any other
Employee benefit plan.
On August 31, 2003, Employee shall, without any further action on the part of
Employee or Employer, be deemed to have resigned from the employ of Employer,
and a termination of Employee pursuant to Section 9(a) of his option agreements
shall be deemed to have occurred. Accordingly, Employee shall have until
September 30, 2003 to exercise any vested stock options.
During the Transition Period, Employee agrees to make himself available to
Employer for such purposes as Employer may reasonably request. During the
Transition Period, Employee agrees that he (1) is not an officer of Employer,
(2) has no authority to bind Employer to any contract or agreement (whether oral
or written) or to assume or create any obligation or responsibility, express or
implied, on behalf of or in the name of Employer and (3) will not hold himself
out as having any such authority.
Centennial Communications Corp.
By: /s/ Xxxxxxx X. Small
--------------------
Name: Xxxxxxx X. Small
Title: Chief Executive Officer
Accepted and Agreed
as of the date first above written
By: /s/ Xxxxx X. Xxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxx
