Exhibit 10.1
AMENDED AND RESTATED SEPARATION AND RELEASE AGREEMENT
This Amended and Restated Separation and Release Agreement (“Agreement”) is made by and between NII Holdings, Inc., a Delaware corporation ("NII"), and Steve Shindler (hereinafter “Employee”) on July 25, 2017. NII and Employee are collectively referred to as the “Parties” and individually as a “Party.”
RECITALS:
WHEREAS, in connection with the wind down of its operations in Reston, Virginia, NII is undergoing a reduction-in-force that will result in the elimination of Employee’s position;
WHEREAS, NII desires to provide Employee with separation benefits to assist Employee in the transition from employment with NII;
WHEREAS, the parties to this agreement desire to resolve all issues, whether known or unknown, arising out of Employee’s employment and separation from employment in a mutually satisfactory manner, confidentially, and without resort to litigation; and
WHEREAS, this Agreement replaces and supersedes the prior Separation and Release Agreement dated November 13, 2015 and all amendments thereto.
AGREEMENT:
NOW, THEREFORE, in consideration of the promises and of the mutual covenants herein contained and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties do hereby covenant and agree:
| 1. | Termination of Employment; Separation Benefits |
A.Employee will be terminated from employment due to job elimination on August 1, 2017 as described below (the “Termination Date”). In consideration of Employee’s acceptance of this Agreement:
1) NII shall pay Employee two times annual base salary. Using Employee’s base salary as of July 25, 2017, this would be $1,948,751.76. This amount is subject to increase based on the base salary in effect on the Termination Date and shall be paid to Employee in one lump sum, payable within twenty (20) business days of the Termination Date or the Effective Date (as defined below).
2) In the event that NII exercises its discretion to make a payment under NII’s cash bonus plan following the execution of this Agreement and that bonus covers a period prior to and including the Employee’s Termination Date, NII shall pay to Employee the unpaid prorated bonus to which Employee would have been entitled
1
based on NII’s actual performance and pursuant to the terms and conditions of the then applicable bonus plan if and when it is paid.
3) In the event that NII triggers a payment pursuant to the Key Employee Incentive Plan (the “KEIP”), as provided for in NII’s bankruptcy proceedings concluded in June 2015, NII shall pay to Employee his portion of the KEIP pursuant to the terms and conditions of the KEIP and when payments are made to other eligible employees.
4) In the event that on or before July 31, 2018 a transaction is completed that meets the definition of Change of Control as defined in NII’s Change of Control Severance Plan, as amended and restated effective November 2, 2015, NII shall pay to Employee an additional payment equal to 200% of Employee’s target annual bonus in effect on the Termination Date and 18 months of COBRA benefits in one lump sum, payable within twenty (20) business days of the closing date of such transaction.
B.Employee hereby agrees that NII will deduct from the above-described payments all withholding taxes and other payroll deductions that NII is required by law to make from wage payments to employees. Employee hereby agrees that the payments and performances described in this Agreement are all that Employee shall be entitled to receive from NII except for vested qualified retirement benefits, if any, to which Employee may be entitled under NII's ERISA plans. Employee further acknowledges and agrees that the payment described in Section 1(A) shall be deemed to satisfy NII’s obligations pursuant to NII’s Severance Plan (as amended and restated February 27, 2013) (the “Severance Plan”), that such payment represents the full amount payable to Employee under the terms of the Severance Plan, and that the Severance Plan requires Employee to execute this Agreement as a condition of receiving any such payments.
| 2. | Consideration |
Employee hereby agrees and acknowledges that the benefits set forth in Section 1 of this Agreement are more than Employee would otherwise be entitled to receive under any of NII’s policies and procedures and that they are in addition to anything of value to which Employee already is entitled; and, specifically, that because execution of this Agreement is a condition of receiving any benefits under the Severance Plan, to the extent it would be deemed to apply to Employee’s termination, Employee is not otherwise entitled to any of the benefits set forth in Section 1. Employee acknowledges and agrees that the amount made payable to him is in complete satisfaction of any and all claims of any kind that he has made or could have in connection with his employment and separation from employment.
| 3. | Complete Release |
In exchange for the consideration set forth herein, Employee hereby knowingly and voluntarily releases and forever discharges NII and any related companies, including, without limitation, their affiliates, former and current employees, officers, agents, directors, shareholders, investors, attorneys, successors and assigns or any of them (the “Released Parties”) from all liabilities, claims, demands, rights of action or causes of action Employee had, has or may have against any of the Released Parties, including but not limited to any claims or demands based upon or relating to Employee’s employment with NII or the termination of that employment. This includes
2
but is not limited to a release of any rights or claims Employee may have under Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment based on race, color, national origin, religion or sex; the Equal Pay Act, which prohibits paying men and women unequal pay for equal work; the Age Discrimination in Employment Act of 1967, the (“ADEA”) which prohibits age discrimination in employment; the Americans with Disabilities Act, which prohibits discrimination against otherwise qualified disabled individuals; the Virginia Human Rights Act, which is a state statue prohibiting, among other things, employment discrimination; the Fairfax County Human Rights Ordinance, which is a local ordinance prohibiting, among other things, employment discrimination; or any other federal, state or local laws or regulations prohibiting employment discrimination. This also includes but is not limited to a release by Employee of any claims for wrongful discharge, breach of contract, under the Severance Plan, or any other statutory, common law, tort or contract claim that Employee had, has or may have against any of the Released Parties. This release covers both claims that Employee knows about and those that Employee may not know about.
Notwithstanding the foregoing, neither party is releasing any right to enforce this Agreement, and Employee is not releasing: (1) any vested qualified retirement benefits under NII’s ERISA plan (although it does include a release of all claims to benefits under the Severance Plan); (2) the right to continuation in NII’s medical plans as provided by COBRA; (3) any claims for unemployment compensation or workers compensation benefits or other rights that may not be released as a matter of law; (4) any claims solely relating to the validity of this general release under the ADEA, as amended; (5) any non-waiveable right to file a charge with the U.S. Equal Employment Opportunity Commission, the Occupational Safety and Health Act, the Securities and Exchange Commission or any other federal, state or local governmental agency or commission (“Government Agencies”); or (6) any rights to indemnification pursuant to NII’s or any successor company’s Certificate of Incorporation, Delaware General Corporation Law or the Director and Officer Indemnification Agreement between the Parties. If a government agency were to pursue any matters that are released herein, Employee agrees that this Agreement will control as the exclusive remedy and full settlement of all such claims by Employee for money damages. However, Employee understands that this Agreement does not limit Employee’s ability to communicate with any Government Agencies or otherwise participate in any investigation or proceeding that may be conducted by any Government Agency. This Agreement does not limit Employee’s right to receive an award for information provided to any Government Agencies.
Employee represents and warrants that Employee has no knowledge of any improper or illegal actions, misstatements or omissions by NII, is not aware of any facts or evidence that could give rise to such a claim, nor does Employee know of any basis on which any third party or governmental entity could assert such a claim. Employee further represents and warrants that he/she has fulfilled Employee’s duties to NII to the best of Employee’s abilities and in a reasonable and prudent manner, and that Employee has not knowingly engaged, directly or indirectly, in any actions or omissions that could be perceived as improper or unlawful, nor has Employee failed to report any such actions or omissions to NII. Employee further represents and warrants that he/she has been paid all compensation due and owing from NII as a result of Employee’s work, that he/she has received all rights to which Employee is entitled under the Family and Medical Leave Act, and that he/she is not suffering from any undisclosed illness or injury that would be compensable under NII’s workers’ compensation insurance.
3
Employee hereby acknowledges and agrees that this release is a general release and that by signing this Agreement, he is signing and agreeing to this release.
| 4. | Non-Release of Future Claims |
Employee understands and agrees that he is waiving any and all rights and claims under the ADEA. Employee agrees that his waiver of these ADEA claims is knowing and voluntary, and understands that he is forever releasing any such claims that might have arisen before the date of this Agreement. The Parties agree that the decision to terminate Employee’s employment has been made prior to the execution of this Agreement.
| 5. | Encouragement to Consult with Attorney |
Employee has had the opportunity to consult with an attorney and has been encouraged to do so prior to executing this Agreement.
| 6. | Period for Review and Consideration of Agreement |
Employee may have, if desired, 45 days within which to consider this Agreement, first proposed to him on November 13, 2015. Employee acknowledges and agrees that any changes made to this Agreement after it first was offered do not re-start the running of the 45-day period. Employee may execute the Agreement prior to the expiration of the 45-day period but in no event may he execute it prior to the Termination Date. Employee acknowledges that in the event he decides to execute this Agreement in fewer than 45 days, he has done so with the express understanding that he has been given and declined the opportunity to consider this release for a full 45 days. Employee acknowledges that his decision to sign the Agreement in fewer than 45 days was not induced by NII through fraud, misrepresentation, or a threat to withdraw or alter the offer prior to the expiration of the 45-day time period. Employee acknowledges receipt of the OWBPA document appended to this Agreement that contains the employees affected by this termination program and their titles and ages.
| 7. | Employee's Right to Revoke Agreement |
Employee may revoke this Agreement within seven (7) days of Employee's signing it. Revocation can be made by delivering a written notice of revocation to Shana Smith, General Counsel and Corporate Secretary, NII Holdings, Inc., 1875 Explorer Street, Suite 800, Reston, VA 20190. For this revocation to be effective, written notice must be received by Ms. Smith no later than the close of business on the seventh day after Employee signs this Agreement. If Employee has not revoked the Agreement, the eighth (8th) day after Employee signs this Agreement shall be the Effective Date for purposes of this Agreement.
| 8. | No Future Lawsuits |
Employee promises never to file a lawsuit asserting any claims that are released in Section 3 of this Agreement. In the event Employee breaches this Section 8, Employee shall pay to NII all of its expenses incurred as a result of such breach, including but not limited to, reasonable attorney’s fees and expenses.
4
| 9. | Disclaimer of Liability |
This Agreement and the payments and performances hereunder are made solely to assist Employee in making the transition from employment with NII, and are not and shall not be construed to be an admission of liability, an admission of the truth of any fact, or a declaration against interest on the part of NII.
| 10. | Confidential Information/Return of Property |
Employee covenants and agrees that Employee shall not use, divulge, publish or disclose to any person or organization, confidential information obtained by Employee during the course of Employee’s employment or related to Employee’s cessation of employment (“Confidential Information”). The Confidential Information consists of the following: (a) personal, financial, private or sensitive information concerning NII’s executives, employees, customers and suppliers; (c) information concerning NII’s finances, business practices, long-term and strategic plans and similar matters; (d) information concerning NII’s formulas, designs, methods of business, trade secrets, technology, business operations, business records and files; and (e) any other non-public information which, if used, divulged, published or disclosed by Employee, would be reasonably likely to provide a competitive advantage to a competitor or to cause any of NII’s executives or employees embarrassment. Employee further agrees to return immediately to NII all of NII’s property, if any, in Employee’s possession or under Employee’s control upon the Termination Date or such earlier date as Employee’s employment shall cease. Employee agrees that if he intentionally damages any NII property following notification of termination, this Agreement becomes null and void. Employee acknowledges that in addition to the promises contained in this Agreement, he remains bound by the Non-Competition and Confidentiality Agreement between the Parties.
| 11. | Statements Regarding the Parties |
The Parties agree not to do or say or write anything, directly or indirectly, that reasonably may be expected to have the effect of criticizing or disparaging the other Party. In addition, the Employee agrees not to do or say or write anything, directly or indirectly, that reasonably may be expected to have the effect of criticizing or disparaging any director of NII; any of NII’s employees, officers or agents; or diminishing or impairing the goodwill and reputation of NII or the products and services it provides. Employee further agrees not to assert that any current or former employee, agent, director or officer of NII has acted improperly or unlawfully with respect to Employee or any other person regarding employment.
5
| 12. | Cooperation with Litigation |
Employee will cooperate fully with NII in its defense of any lawsuit filed over matters that occurred during the course of Employee’s employment with NII, and Employee agrees to provide full and accurate information with respect to the same.
13. Litigation Assistance
Employee agrees that, unless compelled by valid subpoena or other court order, and in such case only after providing sufficient notice to NII of such subpoena or court order to allow NII a reasonable opportunity to object to the same, Employee shall not, directly or indirectly, assist any person or entity in connection with any potential or actual litigation against NII or any other of the Released Parties described in Section 3 of this Agreement.
14. Execution of Documents
Each of the Parties hereto shall execute any and all further documents and perform any and all further acts reasonably necessary or useful in carrying out the provisions of this Agreement.
15. Invalid Provisions
The invalidity or unenforceability of any particular provision of this Agreement shall not affect the validity or enforceability of any other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted.
16. Acknowledgment
Employee acknowledges that Employee has signed this Agreement freely and voluntarily without duress of any kind. Employee has conferred with an attorney or has knowingly and voluntarily chosen not to confer with an attorney about the Agreement.
17. Entire Agreement
This Agreement contains the entire understanding of Employee and NII concerning the subjects it covers and it supersedes all prior understandings and representations, except that Employee acknowledges and confirms the continuing effectiveness of the provisions of any Confidentiality Agreement between Employee and NII. NII has made no promises to Employee other than those set forth herein. This Agreement may not be modified or supplemented except by a subsequent written agreement signed by all Parties.
18. Successorship
It is the intention of the parties that the provisions hereof be binding upon the Parties, their employees, affiliates, agents, heirs, successors and assigns forever.
19. Governing Law
6
This Agreement shall be governed by the laws of the Commonwealth of Virginia, without regard to its conflict of laws principles.
EMPLOYEE ACKNOWLEDGES THAT EMPLOYEE HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND IS VOLUNTARILY ENTERING INTO IT. PLEASE READ THIS AGREEMENT CAREFULLY. IT CONTAINS A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates stated below.
| Date | Steve Shindler | ||
| NII HOLDINGS, INC. | |||
| July 25, 2017 | By: | ||
| Shana Smith | |||
| General Counsel | |||
7
1