SEVERANCE AGREEMENT AND
RELEASE
THIS SEVERANCE
AGREEMENT AND RELEASE (the “Agreement”) is made
this 3rd
day of September, 2009, by and
between John D. Filipowicz (“Employee”) and RCN Telecom
Services, Inc. (“Company”), together with each and
every one of its predecessors, successors, directors, officers,
employees and agents, whether present or former (collectively the
“Releasees”).
WHEREAS,
Employee’s employment by the Employer will terminate
effective August 21, 2009 (“Separation
Date”);
WHEREAS, the
parties desire that Employee’s separation be on an amicable
basis;
In consideration
of the mutual covenants and obligations contained herein, Employee
and Company, each intending to be legally bound, agree as
follows:
1.
Separation Benefits . In consideration for the releases and
other covenants set forth in this Agreement, the Company will
provide Employee with the separation payment(s) and benefit(s) set
forth on Exhibit A (the “Separation Benefits”).
Employee acknowledges that the Company has no previous obligation
to provide Employee the Separation Benefits.
2.
Acknowledgement. Employee acknowledges that he or she has
received all compensation due from the Company, including all
vacation pay and other compensation due. Employee acknowledges
that, if applicable, he or she has received proper compensation for
any overtime hours worked. Employee acknowledges that he or she has
been granted any leave time to which he or she believes he or she
was entitled under the Family and Medical Leave Act or other
laws.
3.
Employee’s Release . Employee, on behalf of himself or
herself, and on behalf of his or her descendants, dependents,
heirs, executors, administrators, assigns, and successors hereby
generally releases and discharges the Releasees from any and all
suits, causes of action, complaints, obligations, demands, or
claims of any kind, whether in law or in equity, direct or
indirect, known or unknown, suspected or unsuspected (hereinafter
“claims”), which Employee ever had or now has against
the Releasees, or any one of them, arising out of or relating to
any matter, thing or event occurring up to and including the date
of this Agreement. Employee’s release specifically includes,
but is not limited to:
a.
any and all claims for wages and benefits including, without
limitation, salary, stock, options, commissions, royalties, license
fees, health and welfare benefits, severance pay, vacation pay, and
bonuses;
b.
any and all claims for wrongful discharge, breach of contract
(whether express or implied), or for breach of the implied covenant
of good faith and fair dealing;
c.
any and all claims for alleged employment discrimination on the
basis of age, race, color, religion, sex, national origin, veteran
status, disability and/or handicap, pregnancy, childbirth or
related medical conditions, marital status and any and all other
claims in violation of any federal, state or local statute,
ordinance, judicial precedent or executive order, including but not
limited to claims under the following statutes: Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §2000e et seq. ,
the Civil Rights Act of 1866, 42 U.S.C. §1981, the Age
Discrimination in Employment Act, 29 U.S.C. §621 et
seq ., the Older Workers Benefit Protection Act, 29 U.S.C.
§626(f), the Americans with Disabilities Act, 42 U.S.C.
§12101 et seq. , the Family and Medical Leave Act of
1993, 29 U.S.C. §2601 et seq . , the Employee
Retirement Income Security Act of 1974, 29 U.S.C. §1001 et
seq. , the Virginia Human Rights Act, Virginia Code §
2.1-714 et seq. , or any comparable statute of any other
state, country, or locality;
d.
any and all claims under any federal, state or local statute or
law;
e.
any and all claims in tort (including but not limited to any claims
for misrepresentation, defamation, interference with contract or
prospective economic advantage, intentional or negligent infliction
of emotional distress, duress, loss of consortium, invasion of
privacy and negligence); and
f.
any and all claims for attorneys’ fees and costs.
4. Effect
of Release . Employee agrees and acknowledges:
a.
that this Agreement is intended to be a general release that
extinguishes all claims by Employee against Releasees;
b.
that Employee is waiving any claims against Releasees arising under
all federal, state and local statutes, ordinances and common law,
including but not limited to any and all claims alleging personal
injury, emotional distress or other torts, to the fullest extent
permitted by law;
c.
that Employee is waiving all claims against Releasees, known or
unknown, arising or occurring prior to and including the date of
Employee’s execution of this Agreement;
d.
that by signing (and not revoking) this Agreement, Employee is
permanently giving up, surrendering, and waiving any claim that
Releasees subjected him to discrimination or harassment because of
age, took any other adverse action against Employee because of age,
or violated any other provision of the ADEA (or any similar law) in
connection with Employee’s employment or termination from
employment;
f.
that the Separation Benefits that Employee will receive in exchange
for Employee’s waiver of the claims specified herein exceeds
anything of value to which Employee is already entitled;
g.
that Employee was hereby informed by the Company in writing to
consult with an attorney, and that Employee had at least
21 days to consider this Agreement;
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h.
that Employee has entered into this Agreement knowingly and
voluntarily with full understanding of its terms and after having
had the opportunity to seek and receive advice from counsel of
Employee’s choosing; and
i.
that Employee has had a reasonable period of time within which to
consider this Agreement.
Employee agrees
not to apply for or seek employment by the Company. Neither this
release nor the promise not to sue set out below should be
construed, however, to prevent Employee from filing a claim based
on rights that cannot be waived as a matter of law, such as, but
not limited to, the right to claims for vested benefits under
ERISA; the right to continued benefits in accordance with COBRA;
any claim to receive workers’ compensation benefits or
unemployment insurance, in accordance with applicable law; the
right to challenge the knowing and voluntary nature of this
Agreement under the Older Workers Benefit Protection Act
(“OWBPA”); any claim to enforce the terms of this
Agreement; or any claim which cannot be waived as a matter of
law.
5.
Covenant Not to Sue. Employee affirms that no charge,
complaint or action exists in any forum brought by or on behalf of
Employee against the Releasees and that Employee has not assigned
any existing or potential claim that Employee purports to release
to any third party. Further, Employee, on behalf of himself or
herself, and his or her descendants, dependents, heirs, executors,
administrators, assigns, and successors covenants that Employee
will not at any time hereafter commence, maintain, or in any way
cause, or advise to be commenced or prosecuted, or permit to be
filed by any other person on her behalf, any grievance, charge,
action (including any class action), suit, or proceeding (judicial
or administrative) against Company, except as such waiver is
specifically prohibited by law or regulation. Although this
Agreement does not prevent Employee from filing a charge with the
Equal Employment Opportunity Commission (or similar state agency)
or participating in an investigation conducted by the Commission
(or similar state agency), any claims for personal relief,
including reinstatement or monetary damages, would be
barred.
6.
Remedies . All remedies at law or in equity shall be
available to the Releasees for the enforcement of this Agreement.
This Agreement may be pleaded as a full bar to the enforcement of
any claim that Employee may assert against the
Releasees.
7. No
Admissions . Neither the execution of this Agreement by the
Releasees, nor the terms hereof, constitute an admission by the
Releasees of liability to Employee.
8. No
Disparagement . Employee agrees to refrain from making
disparaging comments about the Releasees, and further agrees not to
disrupt the Releasees’ business activities in any manner
whatsoever. Company agrees to use reasonable best efforts not to
make any disparaging comments about the Employee.
9.
Confidentiality of Agreement . Employee shall not disclose
or publicize the terms or fact of this Agreement, directly or
indirectly, to any person or entity, except to his or her
accountant, attorney, spouse, and to others as required by
law.
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10.
Cooperation . Employee agrees to cooperate fully and
promptly with any inquiries he gets from the Company, its Board of
Directors, or any committee thereof pertaining to any and all
matters relating to the management, operations, and/or financial
affairs of the Company. Such cooperation shall include truthful
interviews as requested by the Company and the providing of all
requested documents, electronic data and/or other information. The
Company will reimburse Employee for all reasonable expenses
associated his cooperation.
11.
Confidentiality; Non-Solicitation . In consideration for the
consideration which Employee has or will receive from the Company
under this Agreement, Employee agrees to be bound by the
Restrictive Covenants set forth below.
a.
Definitions . Capitalized terms used herein will have the
meanings set forth in the preamble of this Agreement, or as set
forth below:
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