Exhibit 10.1
SEPARATION AGREEMENT AND GENERAL RELEASE
Global Signal Services LLC ("GSS"), ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, (including affiliates and its and their successors, assigns,
employees, officers, directors, representatives, shareholders and agents,
collectively referred to as "Global Signal"), and ▇▇▇▇▇ ▇. Grain ("Employee")
have entered into this Separation Agreement and General Release (this
"Agreement") as of this 16th day of December 2005 (collectively referred to as
the "Parties"). In consideration of the mutual promises contained herein, the
Parties agree as follows:
1. Last Day of Employment. Employee and GSS agree that Employee's
employment with Global Signal is terminated effective December 16, 2005 (the
"Effective Date"). GSS will pay Employee all earned but unpaid salary and all
accrued but unused paid time off (including vacation time) earned by him through
the Effective Date, less applicable withholdings and deductions as soon as
practicable. In addition, GSS will reimburse Employee for all business expenses
incurred on behalf of Global Signal, in accordance with Global Signal's policies
with respect to the reimbursement of expenses. Employee hereby confirms that
effective on the Effective Date, he no longer holds any positions as an officer,
director or employee of Global Signal (including its, parents, subsidiaries and
affiliates at any level, and he agrees to promptly execute such customary
documents and take such customary actions as may be necessary or reasonably
requested by Global Signal to effectuate such.
2. Payment. In consideration for signing this Agreement and in recognition
of outstanding services rendered over the past three years, (i) GSS will pay
Employee the sum of $500,000, minus any applicable federal, state or local
withholdings and in lieu of any additional payments, by December 20, 2005; (ii)
on the Effective Date all of Employee's unvested option shares subject to the
Stock Option Agreement, dated July 22, 2003, between Employee and Global Signal
(the "Stock Option Agreement") shall become fully vested and exercisable in
accordance with the terms of the Stock Option Agreement and all options
outstanding under the Stock Option Agreement shall remain exercisable until the
first to occur of the third anniversary of the Effective Date or the expiration
date of the options (it being understood that the death of Executive during such
post-termination period shall not further extend the expiration date of the
Option); and (iii) one-third of the shares subject to the terms of the
Restricted Shares Award Agreement, dated December 20, 2004, between Employee and
Global Signal (the "Restricted Shares Award Agreement"), shall become fully
vested upon the Effective Date and shall be delivered as soon as practicable
after the Effective Date pursuant to Section 5 of the Restricted Shares Award
Agreement. Employee recognizes that he is forfeiting as of the Effective Date
all other remaining unvested shares of restricted stock that were granted to
Employee pursuant to the Restricted Shares Award Agreement. Employee
acknowledges that the consideration accorded him in this Agreement is in lieu of
and in full satisfaction of any obligations, including any amounts that might be
payable or securities deliverable, under any contract, agreement, plan, policy,
program, practice or otherwise, past or present, of Global Signal or any of its
affiliates, including, but not limited to, the Employment Agreement, dated
January 31, 2003, between Employee and Global Signal (the "Employment
Agreement") other than any accrued and vested benefits under any tax-qualified
retirement plans (viz., the Company's 401K plan).
3. Employee General Release of Claims. Employee for himself, his heirs,
family members, successors and assigns hereby voluntarily, knowingly and
willfully forever releases and discharges Global Signal and all persons acting
by, through, under or in concert with any of them in both their official and
personal capacities from any and all claims, whether or not known, accrued,
vested, ripe, that Employee has or may have against Global Signal arising from
or in any way related to Employee's employment with GSS or the termination of
that employment relationship, including, but not limited to, any alleged
violation of:
o Title VII of the Civil Rights Act of 1964, as amended;
o The Civil Rights Act of 1991;
o Any claim arising under the provisions of the False
Claims Act, 31 U.S.C.A. ss. 3730, including, but not
limited to, any right to personal gain with respect
to any claim asserted under its "qui tam" provisions;
o Sections 1981 through 1988 of Title 42 of the United States Code,
as amended;
o The Employee Retirement Income Security Act of 1974, as amended;
o The Immigration Reform and Control Act, as amended;
o The Americans with Disabilities Act of 1990, as amended;
o The Age Discrimination in Employment Act of 1967, as amended;
o The Workers Adjustment and Retraining Notification Act, as amended;
o The Occupational Safety and Health Act, as amended;
o The Fair Labor Standards Act of 1938, as amended;
o The Florida Civil Rights Act, Fla. Stat. ss. 760.01, et. seq.;
o The Florida Whistleblower Law, Fla. Stat. ss. 448.101, et. seq.;
o any other federal, state or local civil or human rights law or
any other local, state or federal law, regulation or ordinance;
o any claims arising out of or related to an express or
implied employment contract (including, without
limitation, the Employment Agreement) or a covenant
of good faith and fair dealing;
o any public policy, contract, tort, or common law; or
o any allegation for costs, fees, or other expenses including
attorneys' fees incurred in these matters.
Notwithstanding the foregoing, nothing in this Agreement shall release or waive
any rights or claims Employee may have: (i) under this Agreement; (ii) for
indemnification under any written indemnification agreement by and between
Employee and Global Signal and/or under applicable law or Global Signal's
charter or Bylaws; (iii) under any applicable insurance coverage(s); or (iv)
with respect to any accrued and vested benefits under any tax-qualified
retirement plans.
4. GSS Release. Global Signal for itself, its officers, directors,
successors, affiliates, agents, employees and assigns, both in their individual
and representative capacities, hereby voluntarily, knowingly and willfully
forever releases and discharges Employee, his agents, attorneys,
representatives, heirs and assigns from any and all claims, whether or not
known, accrued, vested, ripe, that Global Signal has or may have against
Employee arising from or in any way related to Employee's service with Global
Signal or the termination of that employment relationship, including, but not
limited to, any alleged violation of any federal, state or local law, regulation
or ordinance; any claims arising out of or related to an express or implied
employment contract (including, without limitation, the Employment Agreement) or
a covenant of good faith and fair dealing; any public policy, contract, tort, or
common law; or any allegation for costs, fees, or other expenses including
attorneys' fees incurred in these matters. Notwithstanding the foregoing,
nothing in this Agreement shall release or waive any rights or claims Global
Signal may have (i) under the terms of this Agreement or (ii) as a result of any
unlawful or fraudulent conduct by Employee.
5. Affirmations. Employee and Global Signal each affirm that they have not
filed, caused to be filed, and presently is not a party to any claim, complaint,
or action against the other in any forum or form. Employee further affirms that
he has been paid and has received all leave (paid or unpaid), compensation,
wages, bonuses, commissions, and benefits to which he may be entitled and that
no other leave (paid or unpaid), compensation, wages, bonuses, commissions and
benefits are due to him, except as expressly provided herein. Employee
furthermore affirms that he has no known workplace injuries or occupational
diseases, has been provided and has not been denied any leave requested under
the Family and Medical Leave Act. Employee disclaims and waives any right of
reinstatement with Global Signal.
6. Benefits and COBRA. Except as otherwise provided in this Section 6,
effective as of December 31, 2005, Employee will cease all Global Signal health
benefit coverage and other benefit coverage. Employee acknowledges that Global
Signal has advised him that pursuant to the Consolidated Omnibus Budget
Reconciliation Act of 1985 (COBRA), he has a right to elect continued coverage
under Global Signal group health plan for a period of eighteen (18) months from
the Effective Date. Provided Employee timely elects COBRA coverage, Global
Signal agrees to provide continued group health plan coverage for Employee and
his eligible dependents (to the extent so elected) for twelve (12) months
following the Effective Date at Global Signal's expense subject to co-payments
and deductibles applicable to active employees of Global Signal.
7. Non-Disparagement. Employee agrees not to make critical, negative or
disparaging remarks about Global Signal, including, but not limited to, comments
about any of its products, services, management, business or employment
practices, and not to voluntarily aid or voluntarily assist any person in any
way any third party claims pursued against Global Signal. Global Signal, ▇▇▇▇▇▇
▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ each agrees not to (and Global Signal shall obtain the
agreement of each of the executive officers named in the proxy statement on Form
14F most recently filed by Global Signal Inc. who are employed by Global Signal
as of the date hereof not to) engage in conduct or make statements or
representations that are critical, negative or disparaging with respect to
Employee, his business or personal reputation (it being understood in the case
of Global Signal that statements or conduct by individuals other than the
individuals identified in this sentence shall not be deemed statements by Global
Signal by virtue of the fact that such individuals happen to be officers or
directors of Global Signal). By signing this Agreement, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ agrees
not to make critical, negative or disparaging remarks with respect to Employee,
his business or personal reputation. If called to provide information to any
actual or prospective subsequent employer of Employee, Global Signal will only
disclose Employee's dates of employment with GSS, his last job title and base
salary rate, and that Employee's departure was amicable. Any description (to the
extent permitted hereby) of Employee's departure from Global Signal in any
public filing or document (or otherwise) by or on behalf of Global Signal shall
be accurate and fully consistent with that contained herein and shall be fully
agreed to by Employee except to the extent that Global Signal in good faith
views its disclosure requirements under applicable law to require disclosure
which is not so agreed to. Global Signal will attempt in good faith to provide
Employee with an opportunity to review and comment on any such filing or
document before it is publicly disclosed. Nothing in this Section will prevent
the Employee or Global Signal from responding fully and accurately to any
question, inquiry or request for information when required by applicable law or
legal process.
8. '34 Act Filing. Global Signal will disclose the existence and terms and
will file this Agreement with the Securities and Exchange Commission in
satisfaction of its reporting obligations under the Securities and Exchange Act
of 1934, as amended. The Form 8-K to be filed to which this Agreement shall be
attached as an exhibit and any press release issued in connection with
Employee's departure from Global Signal shall first be furnished to Employee
with an opportunity for Employee to comment, and Global Signal will attempt in
good faith to provide Employee with an opportunity to review any changes or
additions to any such disclosure in any other public filings or disclosure in
advance.
9. Continuing Obligations to Global Signal. The Parties rights under the
Non-compete, Non-solicitation and Confidentiality Agreement, effective as of
December 16, 2004, are unaffected by the execution of this Agreement.
In addition, commencing on the Effective Date, Employee will cooperate in
all reasonable respects with Global Signal and its affiliates in connection with
any and all existing or future litigation, actions or proceedings (whether
civil, criminal, administrative, regulatory or otherwise) brought by or against
Global Signal or any of its affiliates, to the extent Global Signal reasonably
deems Employee's cooperation necessary. Executive shall be reimbursed for all
out-of-pocket expenses incurred by him as a result of such cooperation.
10. Return of Personal Property. Employee hereby acknowledges that Global
Signal has returned to him, and that he is in receipt of, all items of personal
property located at Employer's business premises prior to the Effective Date;
provided, however, Employee shall be allowed to retain the cell phone and
wireless card provided to Employee by Global Signal. To the extent he has not
done so, Employee promises to return to GSS all items of Global Signal property
in his possession no later than the Effective Date.
11. Notices. All notices, demands, consents or communications required or
permitted hereunder shall be in writing. Any notice, demand or other
communication given under this Agreement shall be deemed to be given if given in
writing (including facsimile or similar transmission) addressed as provided
below (or at such other address as the addressee shall have specified by notice
actually received by the sender) and if either (a) actually delivered in fully
legible form to such address or (b) in the case of a letter, five (5) days shall
have elapsed after the same shall have been deposited in the United States mail,
with first-class postage prepaid and registered or certified:
To Employer Corporation: Global Signal Services LLC
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
With a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇, ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇, Esq.
And to:
Fortress Investment Group LLC
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
To Employee: ▇▇▇▇▇ ▇. Grain
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
Stroock & Stroock & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
12. Governing Law and Interpretation. This Agreement shall be governed and
controlled by and in accordance with the laws of the State of Florida without
regard to its conflict of laws provision. In the event Employee or Global Signal
breaches any provision of this Agreement, Employee and Global Signal affirm that
either may institute an action to specifically enforce any term or terms of this
Agreement. Venue for any action brought to enforce the terms of this Agreement
or for breach thereof shall lie in any court of competent jurisdiction in
Sarasota, Florida. Should any provision of this Agreement be declared illegal or
unenforceable by any court of competent jurisdiction and cannot be modified to
be enforceable, excluding the general release language, such provision shall
immediately become null and void, leaving the remainder of this Agreement in
full force and effect. The Parties affirm that this Agreement is the product of
negotiation and agree that it shall not be construed against either Party on the
basis of sole authorship.
13. Nonadmission of Wrongdoing. The Parties agree that neither this
Agreement nor the furnishing of the consideration for same shall be deemed or
construed at anytime for any purpose as an admission by either party of any
liability, wrongdoing or unlawful conduct of any kind.
14. Amendment. This Agreement may not be modified, altered or changed
except upon express written consent of both Parties wherein specific reference
is made to this Agreement.
15. Entire Agreement. This Agreement sets forth the entire agreement
between the parties hereto and fully supersedes any prior agreements or
understandings between the parties, except for those surviving provisions of the
Non-compete, Non-solicitation and Confidentiality Agreement, effective as of
December 16, 2004 as set forth in Section 9 hereof. Employee acknowledges that
he has not relied on any representations, promises, or agreements of any kind
made to him in connection with his decision to accept this Agreement, except for
those set forth in this Agreement.
16. Revocation. Employee may revoke this Agreement for a period of seven
(7) calendar days following the day that Employee executes this Agreement. Any
revocation within this period must be submitted, in writing, to Global Signal
Services LLC located at ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇. ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, "I
hereby revoke my acceptance of our Agreement." The revocation must be personally
delivered to Global Signal Human Resources Manager or its counsel or mailed to
their office at the above address and postmarked within seven (7) calendar days
of execution of this Agreement. This Agreement shall not become effective or
enforceable until the revocation period has expired. In the event that Employee
revokes this Agreement, he shall repay any sums paid by Global Signal pursuant
to Section 2(i). If the last day of the revocation period is a Saturday, Sunday,
or legal holiday, then the revocation period shall not expire until the next
following day which is not a Saturday, Sunday, or legal holiday.
EMPLOYEE HAS BEEN ADVISED THAT HE HAS UP TO TWENTY-ONE (21) CALENDAR DAYS
TO REVIEW THIS AGREEMENT AND THE GENERAL RELEASE CONTAINED HEREIN AND HAS BEEN
ADVISED IN WRITING TO CONSULT WITH AN ATTORNEY PRIOR TO EXECUTION OF THIS
AGREEMENT.
EMPLOYEE AGREES THAT ANY MODIFICATIONS, MATERIAL OR OTHERWISE, MADE TO THIS
AGREEMENT DO NOT RESTART OR AFFECT IN ANY MANNER THE ORIGINAL TWENTY-ONE (21)
CALENDAR DAY CONSIDERATION PERIOD.
HAVING ELECTED TO EXECUTE THIS AGREEMENT, TO FULFILL THE PROMISES CONTAINED
THEREIN AND TO RECEIVE THE CONSIDERATION SET FORTH HEREIN, EMPLOYEE KNOWINGLY
AND VOLUNTARILY, AND AFTER DUE CONSIDERATION, ENTERS INTO THIS AGREEMENT.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto knowingly and voluntarily
executed this Agreement as of the date set forth below:
December 16, 2005 /s/ ▇▇▇▇▇ ▇. Grain
------------------------------- -------------------------------
Date Employee
GLOBAL SIGNAL SERVICES LLC
December 16, 2005 By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------- ----------------------------
Date Its duly authorized
representative
December 16, 2005 /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------- -------------------------------
Date ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
(solely for purposes of
Section 7 hereof)