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Triton Pcs Equipment Co - Separation Agreement And Release
Exhibit 10.38
SEPARATION AGREEMENT AND RELEASE
This Separation Agreement and Release (this "Separation Agreement") is entered into by Stephen McNulty ("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's employment with Employer is being terminated; 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 June 20, 2003 ("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 June 20, 2003.
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 June 30, 2003 at Associate's existing rates on the next regularly scheduled payroll date following this date.
(b) Associate shall receive his 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 June 30, 2003, 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 June 30, 2003 through and including March 31, 2004 (the "Severance Period"). Such payments shall commence as of the first regularly scheduled payroll date after the Effective Date (defined in Paragraph 14, below).
(d) In addition to the foregoing, Associate will be entitled to a payment of Fifty-Three Thousand Five Hundred Sixty Dollars ($53,560) representing a pro rata portion of bonus payments for calendar year 2003. This payment will be made in a single lump-sum, less applicable tax withholding and less deductions required or authorized by law or authorized by Associate, on or before March 15, 2004 when all other management bonus payments are made.
(e) 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 provided employee benefits following the Separation Date will be governed by the terms of such benefit plans and applicable law.
(f) 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) provided to Associate immediately prior to the Separation Date. Employer shall continue to pay the same portion of the premiums for such continuation coverage 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.
(g) Employer will make available to Associate, at Employer expense, an outplacement program of Employer's choosing, to assist Associate with Associate's job search. Employer shall pay up to a maximum of ten thousand dollars ($10,000) for outplacement benefits provided under this Paragraph 2(g).
(h) Associate is the owner of restricted shares of Class A common stock, par value $.01 per share 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"). Pursuant to the terms of the Awards, as of the vesting dates, Associate will be vested in a portion of the Restricted Stock identified on Exhibit B. Following the Separation Date, Associate will continue to become vested in the Restricted Stock as of each vesting date under Associate's Awards, occurring on or before September 1, 2003, as identified on Exhibit B, provided that Associate remains in compliance with all of the terms and conditions of this Separation Agreement as of each such date. 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 his Separation Date.
(i) Associate shall be entitled to retain his current phone service through the Triton Companies during the Severance Period and during such period, the Triton Companies shall pay for such service in a manner consistent with the provision of phone services to similarly situated active associates.
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 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 eighty (80) 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 Eight Hundred Dollars ($800) for each full day (7 hours or more) of service and Four Hundred Dollars ($400) 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 the business of selling personal communications services or personal communications handsets and accessories in any 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. 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 twenty four (24) 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 twenty-four (24) 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 "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 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. (S) 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 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 Release...
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