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EXHIBIT 10.3
AGREEMENT AND GENERAL RELEASE
This Agreement and General Release ("Agreement") is by and
between William C. Kennedy, Jr., on the one hand, and HighwayMaster Corporation
and HighwayMaster Communications, Inc., their employees, officers, directors,
agents, predecessors, successors, parents, subsidiaries, affiliates, and all
related entities, on the other, (individually and collectively referred to as
"HighwayMaster"). The parties agree as follows:
1. Upon execution of this Agreement, HighwayMaster agrees to pay Mr.
Kennedy a payment of $450,000, less required withholding for federal
income taxes and other appropriate deductions for medicare and social
security taxes. Except as specified in this Agreement and company
policy, all other fringe benefits and perquisites related to Mr.
Kennedy's employment will end as of September 15, 1998, which is the
day his employment ends. HighwayMaster and Mr. Kennedy acknowledge that
Mr. Kennedy has received concurrently or prior to the execution of this
Agreement all amounts payable by HighwayMaster for reimbursement of
expense, unused vacation days less any required withholding and other
appropriate deductions (totaling 0 hours of accrued vacation), and
any other amounts payable or reimbursements due to Mr. Kennedy by
HighwayMaster for any reason. Notwithstanding the foregoing or any
other provision of this Agreement, nothing herein shall prejudice or
release (i) any rights of Mr. Kennedy to maintain insurance coverage at
his expense under the Consolidated Omnibus Budget Reconciliation Act;
or (ii) any rights of Mr. Kennedy for indemnity or contribution as to
any claims arising out of his prior or subsequent service as a
director, officer or employee of HighwayMaster.
2. Mr. Kennedy acknowledges the sufficiency of this consideration in
connection with his own promises herein, and HighwayMaster acknowledges
the sufficiency of the consideration set forth herein in connection
with its promises.
3. Mr. Kennedy agrees that he is relinquishing the title of Chairman of
the Board of HighwayMaster Corporation and HighwayMaster
Communications, Inc., and will be granted the title of Vice Chairman of
the Board of HighwayMaster Corporation and HighwayMaster
Communications, Inc. HighwayMaster agrees to pay Mr. Kennedy $25,000
per year for his services as an outside director of HighwayMaster
Corporation and HighwayMaster Communications, Inc., prorated for any
partial year of service. Provided, however, that Mr. Kennedy will, upon
request by a majority of the Board of Directors of HighwayMaster
Corporation or HighwayMaster Communications, Inc., resign from his
position on the Board of Directors of HighwayMaster Corporation and
HighwayMaster Communications, Inc., respectively, and upon such
resignation from the
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boards of both companies will cease to receive payments for services as
an outside director. Mr. Kennedy shall be free to resign from the board
of directors at any time, and upon such resignation to cease receiving
payments as outside director. Mr. Kennedy will be provided with office
space at the headquarters of HighwayMaster Corporation until December
31, 1998.
4. Mr. Kennedy understands and agrees that all of the options issued to
him pursuant to the Option Agreement executed between himself and
HighwayMaster Communications, Inc. dated as of June 13, 1994 (the
"Option Agreement") will lapse and expire on November 15, 1998, a date
which is 60 days after termination of his employment with Highway-
Master. Mr. Kennedy hereby affirms and agrees that he has, effective
August 12, 1998, consented to the cancellation of 300,000 of his
options for the express purpose of permitting reissuance of 300,000
additional options to Ms. Jana A. Bell.
5. To the extent a vote of the shareholders of HighwayMaster
Communications, Inc., is required to implement the terms and intent of
this Agreement and General Release, such as by voting in favor of any
such change in the title and position of Mr. Kennedy, and by voting in
favor of the change in title and position of Mr. William C. Saunders
which was accomplished concurrently herewith, Mr. Kennedy agrees to
vote shares held by him in favor of any resolutions which may be
required to implement the terms and intent of this Agreement and
General Release.
6. In exchange for the promises in this Agreement and the payments set
forth herein, Mr. Kennedy on behalf of his heirs and assigns as well as
himself, releases and discharges HighwayMaster from all of its duties,
responsibilities and obligations of any kind under that certain
Employment Agreement between Mr. Kennedy and HighwayMaster Corporation,
dated as of February 4, 1994, as amended to date (the "Employment
Agreement"). HighwayMaster releases and discharges Mr. Kennedy from his
duties, responsibilities and obligations of any kind under the
Employment Agreement, except for the ongoing, prospective duties set
forth in Section 5 of the Employment Agreement which are reconfirmed by
this Agreement in return for the consideration set forth herein. The
parties acknowledge that the covenant not to compete set forth in
section 5(b) of such Agreement shall expire on September 15, 2000.
Mr. Kennedy releases and discharges HighwayMaster from any and all
claims, demands, losses, liabilities and causes of action arising or
accruing concurrent with or prior to the date of execution of this
Agreement, for or because of anything done or omitted by HighwayMaster.
This release includes but is not limited to claims arising under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e (relating
to employment discrimination), the Civil Rights Act of 1991, P.L.
102-166, the Texas Human Relations Act, Tex. Rev. Civ. Stat. Art. 5221k
or similar statutes from other applicable states, the Age
Discrimination in Employment Act, 29 U.S.C. Section 621, and under any
other state or federal statute or regulation, any claims for breach of
contract, tort, and personal injury of any sort, including but not
limited to those arising out of or relating in any way to Mr. Kennedy's
employment by, association with and termination of employment from
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HighwayMaster. This release covers claims both that Mr. Kennedy knows
about and those that he may not know about, but does not include
prospective rights which Mr. Kennedy has as a shareholder of the
Company nor any of the rights referenced in the last sentence of
paragraph 1. Further, by accepting the benefits described above, Mr.
Kennedy agrees not to sue HighwayMaster, or the related persons and
entities described, with respect to any claims that are released in
this paragraph.
HighwayMaster releases and discharges Mr. Kennedy from any and all
claims, demands, losses, liabilities and causes of action arising or
accruing concurrent with or prior to the date of execution of this
Agreement, for or because of anything done or omitted by Mr. Kennedy.
This release includes but is not limited to claims for violation of any
statute, breach of contract, tort, fiduciary duty, and personal injury
of any sort, including but not limited to those arising out of or
relating in any way to Mr. Kennedy's employment by or association with
HighwayMaster. This release covers claims both that HighwayMaster knows
about and those that it may not know about, but does not include
prospective rights which HighwayMaster may have in respect to Mr.
Kennedy's performance as Vice Chairman of the Board of HighwayMaster
Corp. and HighwayMaster Communications, Inc., after the date of this
Agreement. Further, by accepting the benefits described above,
HighwayMaster agrees not to sue Mr. Kennedy with respect to any claims
that are released in this paragraph.
Notwithstanding the foregoing, nothing herein shall release any claim
by either party for breach of this agreement.
7. By making this Agreement, HighwayMaster and Mr. Kennedy are not
admitting that they have done anything wrong. HighwayMaster and Mr.
Kennedy agree that this Agreement is inadmissible as evidence in any
proceeding, legal or otherwise, except to the extent necessary to
enforce its provisions.
8. Mr. Kennedy acknowledges that he has been advised of his right to
consult his own attorney prior to signing this Agreement. Mr. Kennedy
understands that whether or not to do so is Mr. Kennedy's decision. Mr.
Kennedy agrees, however, that HighwayMaster shall not be required to
pay any of his attorney's fees or costs in connection with any
consultation with an attorney prior to signing this Agreement.
9. This is the whole Agreement between Mr. Kennedy and HighwayMaster. No
promises or oral or written statements upon which the parties relied
have been made other than those in this Agreement. Therefore, except as
set forth herein, this Agreement supersedes any other understanding or
statement regarding Mr. Kennedy's employment or arrangements with
HighwayMaster for the period after termination. For the same reason,
any future changes to the terms in this Agreement must be in writing
and executed by both parties. If any portion of this Agreement is found
to be unenforceable (apart from paragraphs 1 and 6), then both Mr.
Kennedy and HighwayMaster desire that all other portions that can be
separated from it or appropriately limited in scope will remain fully
valid and enforceable. Each party also agrees that, without receiving
further consideration, it will
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sign and deliver such documents and do anything else that is reasonably
necessary in the future to make the provisions of this Agreement
effective.
10. This Agreement is to be executed, delivered, and performed in Dallas,
Texas. This Agreement shall be construed in accordance with the laws of
the State of Texas. In the event any dispute or controversy arises
regarding the terms, enforceability, subject matter, or any other
controversy arises out of or is related to this Agreement, the parties
agree that such dispute or controversy shall be submitted exclusively
to the jurisdiction of the court of appropriate jurisdiction in Dallas
County, Texas.
11. MR. KENNEDY ACKNOWLEDGES THAT HE HAS READ THIS AGREEMENT, HAS HAD AN
OPPORTUNITY TO ASK QUESTIONS AND HAVE IT EXPLAINED TO HIM AND THAT HE
UNDERSTANDS THAT THE AGREEMENT WILL HAVE THE EFFECT OF WAIVING ANY
ACTION HE MIGHT PURSUE, INCLUDING BREACH OF CONTRACT, PERSONAL INJURY,
DISCRIMINATION ON THE BASIS OF RACE, AGE, SEX, NATIONAL ORIGIN, OR
DISABILITY AND ANY OTHER CLAIMS ARISING PRIOR TO THE EFFECTIVE DATE OF
THE AGREEMENT AS SET FORTH IN PARAGRAPH 6. The parties represent that
each has not been induced to execute this Agreement by any statement,
act or representation of any kind or character on the part of anyone,
except as may be contained in this Agreement.
ACCEPTED AND AGREED TO:
/s/ WILLIAM C. KENNEDY, JR. Date: 9/30/98
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William C. Kennedy, Jr.
HighwayMaster Corporation
By: /s/ JANA AHLFINGER BELL Date: 9/30/98
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Name: Jana Bell
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Title: President & CEO
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HighwayMaster Communications, Inc.
By: /s/ JANA AHLFINER BELL Date: 9/30/98
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Name: Jana Bell
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Title: 9/30/98
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