Exhibit 99.1
SEPARATION AGREEMENT, GENERAL RELEASE OF ALL CLAIMS
AND COVENANT NOT TO XXX
THIS SEPARATION AGREEMENT, GENERAL RELEASE OF ALL CLAIMS AND COVENANT NOT TO XXX (this "Agreement") is
entered into as of the 18th day of November, 2002 by and among TROPICAL SPORTSWEAR INT'L CORPORATION and SAVANE
INTERNATIONAL CORP. (collectively "Company") and XXXXXXX X. XXXXXXX ("Executive").
In consideration of the payments, covenants and releases described below, and in consideration of other
good and valuable consideration, the receipt and sufficiency of all of which are hereby acknowledged, Company
and Executive agree to compromise, settle and resolve all past and present disputes and claims between them as
follows:
1. Resignation of Employment.
Executive's employment with Company terminated with his voluntary resignation, without Good Reason,
effective as of November 18, 2002 (the "Termination Date"). Company and the Executive agree that,
contemporaneously with the signing of this Agreement, Executive shall execute the letter of resignation attached
hereto as Exhibit A, and both parties agree that the Employee's resignation is not the result of a disagreement
with the Company relating to the Company's operations, policies or practices. Executive acknowledges and agrees
that Company has met all of its obligations under any and all agreements governing his employment including,
without limitation obligations under that certain Employment Agreement between Executive and Tropical Sportswear
Int'l Corporation dated April 15, 2002 (the "Employment Agreement").
Executive acknowledges and admits that, upon payment in full of the consideration described herein, he
will have been paid all wages, salary, bonus, accrued benefits and other amounts due to him through the date of
execution of this Agreement. The parties agree that, except for the consideration specifically set forth in
Section 2 of this Agreement, Company owes no additional amounts to Executive for wages, salary, back pay,
severance pay, bonuses, deferred compensation, accrued vacation, benefits, insurance, sick leave, other leave,
or any other reason.
Executive further acknowledges and agrees that he has received proper notice of his option to continue
his medical and dental insurance pursuant to COBRA coverage continuation rules, of his obligation to make timely
monthly payments of his portion of the premiums to continue such coverage and of his opportunity and the proper
procedures to convert his group life insurance to a personal policy.
This Agreement is intended to and does settle and resolve all claims of whatever nature that Executive
might have against Company for any reason whatsoever as of the date of execution of this Agreement. Finally,
nothing in this Agreement constitutes an admission or acknowledgement by either Executive or Company as to any
fact or element of any dispute between them.
2. Consideration.
(a) In consideration of Executive's promises and the Release and Covenant Not To Xxx
contained in this Agreement:
(i) Company will pay Executive FOUR MILLION ONE HUNDRED SIXTY THOUSAND DOLLARS ($4,160,000)
less the applicable withholding for taxes in the amount of ONE MILLION THREE HUNDRED FOUR THOUSAND EIGHT HUNDRED
FIFTY-FIVE DOLLARS AND FIFTY-FIVE CENTS ($1,304,855.55) resulting in a balance of TWO MILLION NINE HUNDRED
FORTY-SIX THOUSAND EIGHT HUNDRED TWENTY-FOUR DOLLARS AND FORTY-FIVE CENTS ($2,946,824.45) (the "Separation
Pay"). The Separation Pay shall be paid in one lump sum payment on the eighth (8th) day immediately following
the date of Executive's execution of this Agreement, and it shall be wired to the account of Executive to which
Company made its most recent payroll payment to Executive. Company agrees that it will not, during the period
prior to either the eighth (8th) day following execution of this Agreement or the date of Executive's revocation
of this Agreement, whichever occurs earlier, file a lawsuit against Executive for claims from which Company
would be releasing Executive pursuant to section 4 hereof in the event that Executive does revoke this
Agreement. Executive and Company agree that the Separation Pay is a settlement and compromise of claims and
alleged claims between Company and Executive, including but not limited to any and all amounts that are, or are
alleged to be, owed either by Executive to Company or by Company to Executive.
(ii) On the eighth (8th) day immediately following the date of Executive's execution of this
Agreement or as soon thereafter as practicable or, in the case of the computers as soon as all Company
information has been removed therefrom by Company information technology personnel, Company shall transfer to
Employee each of the assets listed on Exhibit B to this Agreement, such transfer to include transfer of free,
clear and unencumbered title to each asset.
(iii) Company will organize and pay for the expenses of a farewell celebration to acknowledge
Executive's founding of Company and leading it to its current level of success and to commemorate Executive's
retirement and departure from Company, as such celebration shall be coordinated and approved by Company's Chief
Executive Officer after consultation with Executive. Executive's wife shall be invited to said event.
(iv) Company will provide Xxxxx Xxxxxx severance benefits in accordance with that certain
Severance Agreement by and among Company and Xxxxx Xxxxxx dated as of even date herewith, provided she properly
executes such Severance Agreement, but in no event shall Xx. Xxxxxx be eligible for severance benefits of less
than nine (9) months of Xx. Xxxxxx'x base salary in effect as of the date of her resignation of employment with
Company, plus the cost of COBRA health insurance continuation premiums for the (18) months immediately following
the termination of Xx. Xxxxxx'x employment with Company (or such shorter period as is allowed by COBRA and the
Severance Agreement entered into by Xx. Xxxxxx with Company), provided Xx. Xxxxxx properly elects and remains
eligible for COBRA health insurance continuation. Said payment shall be made to Xx. Xxxxxx in two (2) equal
installments as provided in her Severance Agreement.
(b) In consideration of Executive's promises and the Release and Covenant Not To Xxx contained
in this Agreement, Company shall not require payment of the applicable premium (as defined in Section
4980B(f)(4) of the Internal Revenue Code of 1986, as amended (the "Code"), by Executive and/or his spouse, Xxxx
Xxxxxxx ("Spouse") for COBRA health care continuation coverage elected by the Executive for himself and his
Spouse under the group health plan sponsored by Company for the period beginning on the date Executive's
employment with the Company is terminated and ending on the earlier of the date that Executive and/or Spouse
cease to be eligible for COBRA as set forth in Code Section 4980B (and the regulations issued thereunder) or the
date that Executive and/or his Spouse become eligible for guaranteed available coverage described below. An
amount equal to the "applicable premium" for such COBRA continuation coverage will be deemed to be "taxable
compensation" in accordance with the rules set forth in the Code and the regulations issued thereunder. In the
event that the Executive and Spouse divorce or legally separate in accordance with applicable state law, the
Company will require Spouse to pay the applicable premium for COBRA continuation coverage resulting from such
divorce or legal separation beginning with the date that such divorce decree is entered or the date the
Executive and Spouse meet the applicable requirements for legal separation. Thereafter, in accordance with the
terms of this Agreement, Company shall pay the required premium for guaranteed available coverage issued to
Executive and/or Spouse in accordance with Public Health Safety Act ("PHSA") Section 2741(a) or (b) and the
regulations issued thereunder, provided that (i) Executive and his Spouse are eligible for such coverage in
accordance with applicable state law; (ii) Executive and his Spouse properly enroll for such guaranteed issue
coverage in accordance with applicable requirements; and (iii) for purposes of coverage for Spouse, Executive
and Spouse are neither divorced or legally separated at the time Spouse becomes eligible for such coverage. To
the extent that either Executive or Spouse are eligible for non- guaranteed issue coverage, without imposition
of a pre-existing condition exclusion or limitation, the Company shall only pay the premium for non-guaranteed
issue individual coverage for the individual who is eligible for such coverage to the extent the total cost of
such coverage is less expensive than the guaranteed issue coverage. Company will pay the premium for individual
coverage issued in accordance with this Agreement for the Executive until the earliest of his sixty-fifth
birthday, the date Executive ceases to be eligible for such guaranteed issue coverage in accordance with the
terms of the policy or coverage, or the date that Executive becomes eligible for other group health coverage
sponsored by another employer (covered either as an employee, director, consultant or other eligible individual
or as a dependent of an employee, director, consultant or other eligible individual). Company will pay the
premium for individual coverage issued in accordance with this Agreement for Spouse until the earliest of her
sixty-fifth birthday, the date Spouse ceases to be eligible for such coverage in accordance with the terms of
the policy or coverage, the date that Spouse and Executive Divorce or legally separate, the date that Spouse
becomes eligible for coverage under a group health plan sponsored by another employer (covered either as an
employee, director, consultant or other eligible individual or as a dependent of an employee, director,
consultant or other eligible individual), or the date that Spouse remarries following the death of the
Executive. The cost of individual coverage issued to Executive and/or Spouse and paid for by Company shall be
deemed by the Company to be taxable compensation in accordance with the rules and regulations of the Code.
(c) The parties acknowledge and agree that the amounts and promises herein have been
negotiated and agreed upon voluntarily by both parties in resolution of disputed actual and potential claims,
without any admission or acknowledgement by either Executive or Company as to any fact or element of any dispute
or claim between them. The parties also acknowledge and agree that these amounts and promises constitute good,
valuable and sufficient consideration for Executive's and Company's respective covenants and agreements
contained in this Agreement to which neither party was otherwise entitled.
(d) Executive agrees that Company's failure to make timely payment of any amount due
pursuant to this Section 2 shall not constitute a default or breach unless and until Company has failed to
tender payment of such amount within five (5) business days after receiving written notice from Executive that
he has not received timely payment.
(e) Executive and Company agree that $4,586,487 of the financial consideration provided
hereunder will be included in Executive's W-2 for the year 2002.
3. Release Of All Claims And Potential Claims Against Releasees and Covenant Not To Xxx; Termination of Certain
Other Rights.
(a) In consideration of the payments made to Executive by Company and the promises contained
in this Agreement, Executive, on behalf of himself and his agents and successors in interest, including, without
limitation, his heirs and personal representatives, hereby UNCONDITIONALLY RELEASES AND DISCHARGES Company, its
successors, subsidiaries (including, without limitation, Savane International Corp.), parent corporations,
shareholders, lenders, advisors, assigns, affiliated entities, agents, legal representatives, attorneys,
employees, officers, trustees and directors (collectively the "Company Releasees") from all disputes, claims,
liabilities, demands and causes of action, whether known or unknown, fixed or contingent, that he may have or
claim to have against Company or any of the other Company Releasees for any reason, including, without
limitation, any claims under the Employment Agreement, as of the date of execution of this Agreement, and hereby
AGREES NOT TO FILE A LAWSUIT or other legal claim or charge to assert any claim, liability, demand or cause of
action against any of the Company Releasees. This Release and Covenant Not To Xxx includes, but is not limited
to, claims for infliction of emotional distress, claims for defamation, claims for personal injury of any kind,
claims for breach of contract, claims for deprivation of employment benefits, claims for harassment and claims
arising under federal, state or local laws prohibiting employment discrimination and claims growing out of any
legal restrictions on Company's rights to terminate its employees or to take any other employment action,
whether statutory, contractual or arising under common law or case law. Executive specifically acknowledges and
agrees that he is releasing, in addition to all other claims, any and all rights under federal and state
employment laws including without limitation the Age Discrimination in Employment Act of 1967 ("ADEA"), as
amended, 29 X.X.X.xx. 621, et seq., the Civil Rights Act of 1964 ("Title VII"), as amended (including amendments
made through the Civil Rights Act of 1991), 42 X.X.X.xx. 2000e, et seq., 42 X.X.X.xx. 1981, as amended, the
Americans With Disabilities Act ("ADA"), as amended, 42 X.X.X.xx. 12101, et seq., the Rehabilitation Act of 1973,
as amended, 29 X.X.X.xx. 701, et seq., the Executive Retirement Income Security Act of 1974 ("ERISA"), as
amended, 29 X.X.X.xx. 301, et seq., the Worker Adjustment and Retraining Notification Act, 29 X.X.X.xx. 2101, et
seq., the Family and Medical Leave Act of 1993 ("FMLA"), as amended, 29 X.X.X.xx. 2601 et seq., the Fair Labor
Standards Act ("FLSA"), as amended, 29 X.X.X.xx. 201 et seq. the Executive Polygraph Protection Act of 1988, 29
X.X.X.xx. 2001, et seq., the Texas Human Rights Commission Act Art. 5221k et seq.; Title VIII of the Texas Human
Resources Code Annotated 121.001 et seq.; the Deceptive Trade Practices Actss.17.41 et seq. Tex. Bus. & Com.
Code, all Florida Code provisions, Texas Code provisions, Delaware Code provisions, all laws of other states,
state and federal securities laws, and the state and federal workers' compensation laws.
(b) Other than with respect to this Agreement and other than with respect to any
indemnification of Executive as provided in Section 9 of this Agreement, Executive hereby terminates all rights
that Executive had under any contracts, agreements, plans, policies or other benefits of any type or nature
whatsoever, whether written or oral, with Company or pursuant to law or the governing instruments of Company,
including without limitation, the Employment Agreement, the Shareholders' Agreement dated as of September 29,
1997, the Articles of Incorporation and Bylaws of Company. Executive also agrees to execute other instruments
and documents necessary to evidence the termination of such rights.
4. Company's Release of Executive and Covenant Not to Xxx.
(a) In consideration of Executive's promises contained in this Agreement, and except as
otherwise provided in this Section 4, Company, on behalf of itself and its respective successors, assigns
subsidiaries, parent corporations and affiliated entities, hereby UNCONDITIONALLY RELEASES AND DISCHARGES
Executive, his agents, and his successors in interest including, without limitation, his heirs and personal
representatives (collectively, the "Executive Releasees") from all disputes, claims, liabilities, demands and
causes of action, whether fixed or contingent, that they may have or claim to have against Executive for any
reason, based upon facts actually known to the Board of Directors of Company as of the time of execution of this
Agreement, except as set forth below, and hereby AGREE NOT TO FILE A LAWSUIT or other legal claim or charge to
assert any such dispute, claim, liability, demand or cause of action against Executive. Notwithstanding the
foregoing, Company and the other persons and entities listed above expressly do not release and discharge
Executive from (i) actions, causes of action, claims or demands for any damage, loss or injury that any of them
may have, may have had or purport to have, whether known or unknown, which arise from his violation of any law,
criminal or civil, by any act or omission, other than to the extent (and only to the extent) that such violation
arises from the facts specifically described or identified in either the Report to Audit Committee prepared by
N. Xxxxx XxXxxxxxx or the Ernst & Young LLP report prepared for Xxxxxx & Bird LLP, copies of which previously
have been given to Executive and his counsel and (ii) any liability Executive may have to any of the Releasees
or a third party for contribution, indemnification or otherwise because a Releasee is liable to another person
or entity as the result of any act or omission of Executive, regardless of whether such violation arises from
the facts specifically described or identified in either the Report to Audit Committee prepared by N. Xxxxx
XxXxxxxxx or the Ernst & Young LLP report prepared for Xxxxxx & Bird LLP.
(b) In the event that Executive files a lawsuit or other legal proceeding, or asserts a
legal claim or charge against Company or any of the Company Releasees, for any reason whatsoever, at any time
after the date of execution of this Agreement, the release of Executive and covenant not to xxx Executive
contained in Subsection 4(a) of this Agreement is automatically rescinded, and Company or the Company Releasees
may file a lawsuit or other legal proceeding against Executive or assert any defense, counterclaim or cross
claim against Executive. Executive further agrees that the statute of limitations for all claims or causes of
action, whether or not released in Subsection 4(a) of this Agreement, is hereby tolled as of the date of
execution of this Agreement, and that Executive will waive and hereby agrees to waive, if necessary, any and all
statute of limitations defenses that could preclude any such action or legal proceeding brought by Company or
the Releasees.
5. Executive Cooperation.
In consideration of the above-described payments and in addition to the consulting services required by
Section 9(c) of this Agreement, Executive agrees, that, at all times after the execution of this Agreement, he
will cooperate with and assist Company by providing information relevant to matters as to which Executive gained
knowledge while employed by Company and/or its predecessors and that, upon reasonable notice from Company, he
will meet with Company's attorneys and other representatives, appear at hearings, depositions, trials and other
proceedings relating to such matters. Company shall reimburse Executive for all reasonable and necessary
out-of-pocket expenses necessitated by his cooperation hereunder.
6. Return of Materials; Transfer of Title.
As soon as reasonably practicable, but in no event later than the close of business on the seventh (7th)
day following the date of execution of this Agreement, Executive agrees to return all documents, materials,
equipment, keys, customer contact information, other customer-related information, sales information, computer
data and other material and information relating to Company, any of the Company Releasees or Company's business
and not to retain or provide to anyone else any copies thereof. By executing this Agreement, Executive warrants
and agrees that he already has returned all such information and material to Company. Notwithstanding the
foregoing, Company will transfer, on the eighth (8th) day immediately following the date of Executive's
execution of this Agreement, to Executive free, clear and unencumbered title to those items of personal property
listed on Exhibit B hereto and agrees to execute such bills of sale, motor vehicle titles, and other good and
sufficient instruments and documents of conveyance and transfer necessary to transfer title to such assets. In
addition, Executive is free to keep and remove those personal effects of Executive located in his current office
and listed on Exhibit D to this Agreement at any time during the transition period ending six (6) months after
the execution of this Agreement, to the extent Company and Executive agree that the items on Exhibit D
constitute personal effects.
7. Nondisparagement.
(a) In consideration of the above-described payments and promises, and as a significant
inducement to Company to make such payments and promises, Executive agrees and covenants that he will not make
any derogatory or disparaging statements regarding Company, Company's executives (whether or not they continue
to be employed by Company) or any of the other Company Releasees, or any of their respective business practices,
products or employment practices other than truthful statements made pursuant to or in connection with a
judicial and/or quasi-judicial proceeding and Executive further agrees that any such statements that he does
make will substantially reiterate the information contained in the press release issued by Company on November
18, 2002 regarding Executive's departure from Company and will demonstrate his continuing support for Company
and its management and will stress that Executive believes that Company and its management treated him very
fairly and appropriately in connection with his departure from Company. Executive agrees that if he breaches
this covenant, he shall pay to Company Two Million Dollars ($2,000,000) in liquidated damages for each such
breach. Executive acknowledges and agrees that damages for such breach are virtually impossible to measure and
that this liquidated damages amount is not a penalty, but is a reasonable estimate of potential damages that
Company would suffer from such disparagement and the loss of a significant portion of the benefit of its bargain
in making this Agreement.
(b) In consideration of Executive's promises and the Release and Covenant Not To Xxx
contained in this Agreement, Company will make commercially reasonable best efforts to prevent the Board of
Directors of Company, and N. Xxxxx XxXxxxxxx, Chief Financial Officer of Company, from making any derogatory or
disparaging statements regarding Executive or Executive's business practices other than truthful statements made
pursuant to or in connection with a judicial and/or quasi-judicial proceeding, subject to the public disclosure
obligations pursuant to Section 18 of this Agreement.
8. Nondisclosure, Noncompetition and Nonsolicitation.
Executive agrees that during his employment with Company, Executive acted in a position of trust and
responsibility and had access to a substantial amount of "Confidential Information" and "Trade Secrets" (as such
terms are defined below). The parties further agree that Company has a legitimate interest in adequately
protecting the Confidential Information and Trade Secrets of Company, as well as Company's relationships with
customers and the goodwill of Company, and acknowledge that Executive is capable of obtaining gainful, lucrative
and desirable employment that does not violate the restrictions contained in this Agreement. Accordingly, in
consideration of the compensation and benefits being paid or afforded and to be paid or afforded by Company to
Executive hereunder, including but not limited to the Separation Pay, Executive agrees as follows:
(a) Protection of Trade Secrets and Confidential Information. Executive hereby agrees that Executive
shall not, directly or indirectly, for a period of five (5) years after the date of execution of this Agreement,
reveal, divulge, or disclose to any person or entity not expressly authorized by the Company any Confidential
Information, and Executive shall not, directly or indirectly, for a period of five (5) years after the date of
execution of this Agreement, use or make use of any Confidential Information in connection with any business
activity other than on behalf of Company. Executive further agrees that at all times after the date that this
Agreement is executed, Executive shall not directly or indirectly transmit or disclose any Trade Secret of
Company to any person or entity, and shall not make use of any such Trade Secret, directly or indirectly, for
himself or for others, without the prior written consent of Company. The parties acknowledge and agree that
this Agreement is not intended to, and does not, alter either Company's rights or Executive's obligations under
any state or federal statutory or common law regarding trade secrets and unfair trade practices.
As used herein, "Confidential Information" means, with respect to Company or any subsidiary of
Company, all information regarding Company, its activities, business or clients that is the subject of
reasonable efforts by Company to maintain its confidentiality and that is not generally disclosed by practice or
authority to persons not employed by Company, but that does not rise to the level of a Trade Secret.
"Confidential Information" shall include, but is not limited to, financial plans and data concerning the Company;
management planning information; business plans; operational methods; market studies; marketing plans or
strategies; product development techniques or plans; customer lists; details of customer contracts; current and
anticipated customer requirements; past, current and planned research and development; business acquisition
plans; and new personnel acquisition plans. "Confidential Information" shall not include information that has
become generally available to the public by the act of one who has the right to disclose such information
without violating any right or privilege of the Company. This definition shall not limit any definition of
"confidential information" or any equivalent term under state or federal law. As used herein, "Trade Secrets"
means all information, without regard to form, including, but not limited to, technical or nontechnical data, a
formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing, a process, financial
data, financial plans, product plans, distribution lists or a list of actual or potential customers, advertisers
or suppliers which is not commonly known by or available to the public and which information: (A) derives
economic value, actual or potential, from not being generally known to, and not being readily ascertainable by
proper means by, other persons who can obtain economic value from its disclosure or use; and (B) is the subject
of efforts that are reasonable under the circumstances to maintain its secrecy. Without limiting the foregoing,
Trade Secret means any item of confidential information that constitutes a "trade secret(s)" under the common
law or statutory law of the State of Florida.
(b) Non-Competition.
(i) Executive agrees that, for a period of thirty (30) months after the date of execution of
this Agreement, Executive will not directly or indirectly, on his own or in combination with any other person or
entity, (1) purchase or otherwise hold a financial interest in, as a partner, shareholder or otherwise, a
Competing Business (as such term is defined below); provided; however, that Executive will not be deemed to have
a financial interest in any Competing Business so long as Executive owns less than five percent (5%) of any
class of securities of such publicly traded or privately held company); (2) start or otherwise be involved in
the commencement of the operations of a Competing Business; (3) serve as President or Chief Executive Officer of
a Competing Business; or (4) be involved in, whether or not for compensation and whether or not as an employee,
the day-to-day operations of a Competing Business. As used herein, "Competing Business" shall mean any
business, whether privately held or publicly traded, that is engaged in the merchandising, manufacturing,
distribution or marketing of casual and dress-casual pants, shorts, denim jeans, and woven and knit shirts for
men, women, boys and girls within the territory consisting of The United States of America, Mexico, Europe,
Australia, Canada and New Zealand.
(ii) Executive agrees that, for the period beginning on the date of execution of this Agreement and
ending six (6) months after the date of execution of this Agreement, he will be engaged in an exclusive consulting
relationship with Company, will devote all of his business time to Company in such capacity, and will have no
affiliation whatsoever with or engage in (a) a Competing Business or (b) any other business or activity that could
interfere with his ability to devote all of his business time and effort to the performance of his duties in his
consulting relationship with Company. Nothing in Section 8 shall preclude or otherwise limit Executive from
continuing to serve on the AAFU and BYU Boards which he served on as of the date of execution of this Agreement.
(iii) Company agrees that, on the date beginning the seventh (7th) month after the date of execution
of this Agreement, Executive may be affiliated with a Competing Business as an outside member of the board of
directors (or similar governing body of a non-corporate entity); provided, however, that while serving in such
capacity, Executive will only perform duties generally performed by an outside member of a board of directors.
Executive acknowledges and agrees that the restrictions contained in this subparagraph are in addition to, and
shall in no way limit, the restrictions contained in subparagraphs 8(b)(i), 8(c) or 8(d), or any other provision
of this Agreement.
(iv) Company agrees that, on the date beginning the twenty-fifth (25th) month after the date of
execution of this Agreement, Executive may be affiliated with a Competing Business as an independent contractor
consultant; provided, however, that while serving in such capacity, Executive will only perform duties relating
to the overall strategy of Company. Executive acknowledges and agrees that the restrictions contained in this
subparagraph are in addition to, and shall in no way limit, the restrictions contained in subparagraphs 8(b)(i),
8(c) or 8(d), or any other provision of this Agreement.
(c) Non-Solicitation of Customers. Executive agrees that for a period of thirty (30) months after the
date of execution of this Agreement, Executive shall not solicit or attempt to solicit or otherwise interfere
with Company's relationship with, for the purpose of engaging in the merchandising, manufacturing, distribution
or marketing of casual and dress-casual pants, shorts, denim jeans, and woven and knit shirts for men, women,
boys and girls, any customer or client of Company with whom Executive had material contact during his employment
with Company, and who was a customer or client of Company or any of its controlled affiliates as of the date of
Executive's resignation from employment with Company.
(d) Non-Solicitation of Employees. Executive agrees that for a period of thirty (30) months after the
date of execution of this Agreement, Executive shall not employ, recruit or assist any other person or entity in
the recruiting or hiring of any person who was employed by Company or any of its controlled affiliates as of the
date of Executive's resignation from employment with Company, or induce any such person to accept employment
other than with Company or its subsidiaries.
(e) Severability, Injunction and Attorney's Fees. Executive acknowledges and agrees that the
non-disclosure, non-competition, and non-solicitation covenants contained in this Section are a reasonable means
of protecting Company from unfair competition by Executive. The parties hereto agree that if any provision of
this Section 8 is held to be illegal, invalid or unenforceable under any present or future law, such provision
shall be modified to the minimum extent necessary to render it enforceable and retain as much of its original
scope as possible. Notwithstanding anything else in this Agreement, if Executive challenges the validity or
enforceability of any provision of this Section 8 or seeks to revoke, rescind or annul any such provision, the
Executive first shall, and as an essential precondition, refund the Two Million Dollars ($2,000,000) of the
Separation Pay heretofore paid to him pursuant to Section 2(a) above and all payments already made to him
pursuant to Section 2(b) above. Executive agrees that any breach of these covenants or promises will leave the
Company with no adequate remedy at law and will cause the Company to suffer irreparable damage and injury.
Executive further agrees that any breach of these covenants and promises will entitle the Company to injunctive
relief in any court of competent jurisdiction. Such injunctive relief shall be in addition to any damages that
may be recoverable by the Company as a result of any breach. Executive also agrees that he shall be responsible
for all damages incurred by Company due to any breach of the restrictive covenants contained in this Agreement
and that Company shall be entitled to have Executive pay all costs and attorneys' fees incurred by Company in
enforcing the restrictive covenants contained in this Agreement.
(f) Extension of Time. In the event that Executive shall be in violation of any of the covenants
contained in this Section 8, then each time limitation set forth in this Section 8 shall be extended for a
period of time equal to the period of time during which such violation or violations occur.
9. Resignation from Employment and Boards; Consulting Services.
(a) Executive hereby resigns from all positions, whether as employee, officer, director or
otherwise, he holds with Company or any subsidiary or affiliate of Company. Executive agrees to take all
actions, and execute all documents, requested by Company to formalize, effect or execute resignations from all
such positions, including, without limitation, the Board of Directors of Company and the Boards of Directors (or
similar bodies of non-corporate entities) of all subsidiaries and affiliates of Company; provided that Company
hereby expressly agrees that all rights to indemnification and all limitations on liability existing in favor of
Executive as provided in Company's and its subsidiaries' respective articles of incorporation, bylaws, or
similar governing instruments or any indemnity agreement with Executive as in effect as of the date of this
Agreement with respect to matters occurring prior to the date of this Agreement shall survive the Executive's
resignation and shall continue in full force and effect, and shall be honored by such entities or their
respective successors as if they were the indemnifying party thereunder, without any amendment thereto. Nothing
in this Agreement in any way restricts, limits or expands Executive's indemnification rights.
(b) Executive hereby permanently relinquishes his nomination rights authorized by Section
4.2 of Tropical Sportswear Int'l Corporation's Articles of Incorporation.
(c) Notwithstanding the foregoing, in consideration of the payments made to Executive by
Company and the promises contained in this Agreement, Executive agrees to serve Company as a strategic
consultant as follows: during the six (6) month period following execution of this Agreement, to the extent
reasonably requested by Company, Executive agrees to make available his services to perform consulting services
in connection with and to facilitate the transition of management, and to perform strategic consulting services
in connection with Company's business including, without limitation, making telephone calls to and personal
trips to Company's customers, suppliers, securities analysts, investment bankers, news reporters, shareholders
and other persons or entities with whom Company has a business relationship. In performing the consulting
services to Company pursuant to this paragraph (c) and in all other communications (written or oral) of any
nature whatsoever (whether "business" or "personal" or otherwise), Executive shall comply with the provisions of
Section 7(a) of this Agreement. Executive agrees that, without the prior consent of the Chief Executive Officer
of Company, his designee or successor in such position, he will not (i) visit Company's facilities or (ii) speak
with Company employees or independent contractors, members of the Board of Directors of Company, or current,
former or potential customers of or suppliers to Company or others with whom Company has business relationship;
provided, however, that nothing contained in the foregoing sentence shall prohibit or prevent Executive from
speaking with any of his family members or any member of his church who are also employees or independent
contractors of Company, regarding matters wholly unrelated to the business of Company, Executive's employment
with Company or the Executive's resignation from Company. Executive acknowledges and agrees that he will act as
an independent contractor in the performance of his consulting services to Company and that he is not entitled
to any benefits from Company except as expressly provided herein. During the period of this consulting
arrangement, at Company's cost and expense Company shall provide Executive with furnished office space
(including utilities and telephone service), reasonably similar to the personal office space currently occupied
by Executive and his administrative assistant, in a location reasonably acceptable to Executive and Company.
Prior to the availability of such office space and a reasonable time for Employee to move to such office space
with Company's assistance, Company shall provide Executive with the uninterrupted use of the office space
currently occupied by Executive, including allowing Executive to have an administrative assistant located in
such space. In addition, Company shall be responsible for all reasonable and necessary business expenses that
have been approved in writing prior to their incurrence during the transition period beginning on the date of
execution of this Agreement and ending six (6) months after the execution of this Agreement, including but not
limited to, telephone service, stationery, and other office supplies.
10. Acknowledgment.
Company hereby advises Executive to consult with an attorney prior to executing this Agreement.
Executive expressly acknowledges and agrees that he has read this Agreement carefully, that he has had ample
time and opportunity to consult with, and, in fact, has consulted with, an attorney and other advisors of his
choosing concerning his execution of this Agreement, that Company has advised him, and hereby does advise him,
of his opportunity to consult an attorney or other advisor and has not in any way discouraged him from doing so,
and that he has, in fact, been represented by an attorney throughout the negotiation and execution of this
Agreement. Executive further agrees that he fully understands that the Agreement is final and binding, that it
contains a release of potentially valuable claims, and that the only promises or representations he has relied
upon in signing this Agreement are those specifically contained in the Agreement itself. Executive also
acknowledges and agrees that he has been offered, and hereby is offered, at least twenty-one (21) days to
consider this Agreement before signing and that he is signing this Agreement voluntarily, with the full intent
of releasing Company from all claims.
11. Effective Date and Revocation.
This Agreement shall become effective and enforceable at twelve o'clock (12:00) noon on the eighth (8th)
day immediately following the date of execution of this Agreement and the parties agree that Executive may
revoke the Agreement at will prior to that time by giving written notice of the revocation to Company. Such
notice must be delivered to Xxxxxxx X. Xxxxx, Esquire, Xxxxxx & Bird, LLP, 0000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxx 00000-0000 and must be received by him at or before the above-mentioned eighth-day deadline. Executive
agrees that, if he revokes the Agreement prior to that time, contemporaneous with and as a precondition to any
revocation, he will return to Company any portion of the $4,160,000 in cash payments paid to or on behalf of
Executive by Company prior to the eighth day following the execution this Agreement, including all taxes paid on
his behalf and all other property or cash paid to or on behalf of Executive by Company pursuant to this
Agreement prior to such eighth-day deadline. The Agreement may not be revoked after that time. Executive also
agrees that if he ever attempts to rescind, revoke or annul this Agreement after the seven-day revocation period
or if he attempts at any time to make, assert or prosecute any claim(s) covered by the Release and Covenant Not
To Xxx contained in Section 3 above, except solely a claim under the ADEA, he will, prior to filing or
instituting such claim(s), return to Company the gross amount of any all payments already paid by the Company to
or on behalf of him (including taxes paid on his behalf) under this Agreement, plus interest at the highest
legal rate, and, if Company prevails in defending the enforceability of any portion of the Agreement or in
defending itself against any such claim brought by Executive, he will pay Company's attorney's fees and costs
incurred in defending itself against the claim(s) and/or the attempted revocation, recission or annulment.
Nothing in this Agreement shall limit Company's rights to seek and obtain other remedies for breach of this
Agreement.
12. Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of the State of Florida,
without giving effect to the conflict of laws principles thereof. Other than as provided in Section 21 below
regarding arbitration, any legal action regarding this Agreement or the provisions hereof shall be brought in a
court of competent jurisdiction in or including Hillsborough County, Florida.
13. Notices.
Executive agrees to keep Company informed of all address changes by written notice sent to Company. All
notices sent to Executive by Company pursuant to this Agreement shall be sent to his address set forth below his
signature to this Agreement or such other address provided by Executive pursuant to the preceding sentence. All
notices sent to Company pursuant to this Agreement shall be sent to Company's headquarters, which currently are
located at 0000 X. Xxxxxx Xxxxxx, Xxxxx, Xxxxxxx 00000-0000 and addressed to both Company's General Counsel and
its Chief Executive Officer. All such notices shall be deemed to have been received: (a) in the case of personal
delivery or if sent by facsimile, graphic scanning or other telegraphic communications equipment, on the date of
such delivery, (b) in the case of mailing, on the third business day following such mailing if sent by
registered or certified mail, return receipt requested, postage prepaid, and if sent otherwise, upon receipt, or
(c) in the case of delivery by a courier or overnight delivery service, on the date of confirmation of delivery,
except notices of change of address which shall only be effective upon receipt.
14. Captions and Paragraph Headings.
Captions and paragraph headings used herein are for convenience only and are not a part of this
Separation Agreement and shall not be used in construing it.
15. Successors and Assigns.
This Agreement shall be binding upon, inure to the benefit of and be enforceable by Executive's personal
or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees.
This Agreement shall also be binding upon, inure to the benefit of and be enforceable by any successor to or
assign of Company by reason of any merger, consolidation or sale of substantially all of its assets,
dissolution, debt foreclosure or other reorganization of Company. This Agreement may not be assigned by
Executive.
16. Entire Agreement.
The parties agree that this document is their entire Agreement regarding employment, separation from
employment and Executive's and Company's release of claims. This Agreement expressly supersedes the Employment
Agreement. The parties agree that this Agreement may not be modified except by a written document signed by
both parties expressly stating that it is intended as an amendment.
17. Executive's Legal Fees and Expenses.
Company agrees to pay the reasonable fees and expenses of Xxxxxx White Xxxxx Banker, P.A., as legal
counsel to Executive, actually incurred in connection with the negotiation and clarification of the terms of
this Agreement, on an hourly billing basis consistent with the regular hourly rates charged by the attorneys
working on such matter through the date of execution of this Agreement, which amount is anticipated to be less
than $175,000, plus such fees and expenses incurred subsequent to the date of execution, to the extent
reasonably related to clarifying and finalizing said terms through no later than December 1, 2002. Company
shall not pay or otherwise be liable for the fees of any other counsel to Executive in connection with work
performed through the date of execution of this Agreement relating to this Agreement, the Employment Agreement
or otherwise.
18. Public Disclosure.
Prior to the public dissemination thereof, Company shall consult with Executive as to the form
and substance of any press release or other public disclosure materially related to Executive's departure;
provided, that nothing in this Section 18 shall be deemed to prohibit Company or Executive from making any
subsequent truthful disclosure which its or his outside counsel deems necessary or advisable in order to satisfy
its or his disclosure obligations imposed by law, in connection with any requirement of any securities exchange
or automated quotations system, in connection with any offering of securities by Company or in connection with
any potential sale of a substantial portion of the assets or securities of Company (whether by asset purchase,
stock purchase, merger or otherwise).
19. Actions Against Certain Employees.
Company agrees that it will not demote, discharge or reduce the base salary of any of the employees of
Company listed on Exhibit C solely as a result of their relationship with Executive.
20. Standstill Agreement; Shareholder Matters.
(a) In consideration of the payments made to Executive by Company and the promises contained in this
Agreement, Executive, on behalf of himself and his agents and successors in interest, including, without
limitation, his heirs and personal representatives, for a period of thirty (30) months from the date of this
Agreement, shall not in any manner, directly or indirectly, (i) effect or seek, offer or propose (whether
publicly or otherwise) to effect, or cause or participate in or in any way assist any other person to effect or
seek, offer or propose (whether publicly or otherwise) to effect or participate in, (A) any acquisition of any
securities (or beneficial ownership thereof) or assets of the Company or any of its subsidiaries (other than
acquisition of shares of Company Common Stock pursuant to the exercise of stock options outstanding on the date
hereof), (B) any tender or exchange offer, merger or other business combination involving the Company or any of
its subsidiaries, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary
transaction with respect to the Company or any of its subsidiaries, or (D) any "solicitation" of "proxies" (as
such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting
securities of the Company, (ii) form, join or in any way participate in a "group" (as defined under the 1934
Act), (iii) otherwise act, alone or in concert with others, to seek to control or influence the management,
Board of Directors or policies of the Company, (iv) take any action which might force the Company to make a
public announcement regarding any of the types of matters set forth in (i) above, or (v) enter into any
discussions or arrangements with any third party with respect to any of the foregoing. Executive also agrees
that during such period he shall not request the Company (or its directors, officers, employees, advisors or
agents), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence).
The foregoing notwithstanding, nothing contained herein shall be interpreted or deemed to prohibit Executive
from selling his Company stock or from engaging in hedging or borrowing transactions with respect to his Company
stock, so long as such transactions are consummated through transactions with brokerage houses or banks, and in
the case of sales the ultimate purchasers are not solicited or identified by Executive. Additionally, nothing
contained herein shall prohibit Executive from tendering his Company stock in any tender offer which Executive
has not solicited or otherwise aided, or from participating in any merger, share exchange, recapitalization, or
other similar transaction, whether or not deemed hostile by the management of the Company, so long as Executive
has not solicited or otherwise assisted such transaction.
(b) For so long as Executive owns of record or beneficially any shares of the voting securities of the
Company, at every meeting of the shareholders of the Company called, and at every adjournment or postponement
thereof, and on every action or approval by written consent of the shareholders of Company, Executive shall
appear at the meeting or otherwise cause all of the voting securities owned of record or beneficially by
Executive to be present thereat for purposes of establishing a quorum and to vote on each matter duly brought
before the meeting or presented in any consent action in the same proportion as the other votes on such matter
are cast. The foregoing notwithstanding, in the event Company proposes a going-private transaction, Executive
shall be permitted freely to vote his shares as he deems appropriate, and to state fully his views regarding the
proposed transaction.
21. Agreement to Arbitrate Certain Claims.
Any dispute or claim arising out of or relating to Executive's any provision of this Agreement, whether based in
contract or otherwise, including any dispute regarding the arbitrability of a dispute, shall be submitted to
binding arbitration before a panel of arbitrators in accordance with the terms of this Section; provided,
however, that Company may pursue injunctive remedies in a court of law for alleged violations of the covenants
set forth in Sections 7 and 8 of this Agreement. This Agreement and any arbitration shall be governed by the
Federal Arbitration Act and any award entered in any such arbitration may be submitted to a court of competent
jurisdiction and such court may confirm the award and enter judgment thereon as a judgment of the court. Any
arbitration hereunder shall be conducted by a panel of three (3) arbitrators, one of which shall be appointed by
each party and the third shall be selected by the two party arbitrators. Such an arbitration may be initiated
by either party at any time by giving the other party written notice pursuant to the Notice provisions of this
Agreement set forth in Section 13, which notice shall describe the nature of the dispute to be arbitrated (the
"Notice"). Within ten (10) business days of the delivery of such Notice, each party shall: appoint one
arbitrator; provide such arbitrator with a copy of this Agreement and the Notice; obtain such arbitrator's
written agreement to serve as an arbitrator of the dispute in accordance with its terms; and notify the other
party, pursuant to the Notice provisions of this Agreement at Section 13, of the identity of such arbitrator.
Within ten (10) business days of the appointment of the delivery of such notice regarding both
party-arbitrators, the two party arbitrators shall appoint the third, neutral arbitrator, provide him or her
with a copy of this Agreement and of the Notice. The neutral arbitrator shall not be employed by either party
or any entity affiliated with either party, shall be duly licensed to practice law in the state of Florida,
shall have at least fifteen (15) years of experience as a litigator, shall have a Xxxxxxxxxx-Xxxxxxx rating of
AV and shall provide to the party arbitrators a written agreement to serve as an arbitrator of the dispute and
the compensation to be paid to the neutral arbitrator for such service. Within ten (10) business days after the
appointment of the neutral arbitrator, each party and its counsel shall meet with the three (3) arbitrators to
propose and, if possible, agree on the procedures to be followed during, and the schedule for, the arbitration.
Matters to be determined during the meeting shall include (but are not necessarily limited to): the date of
initiation, permissible methods, and duration of discovery; time and length of pre-hearing briefs; the time of
the arbitration hearing and procedures to be followed therein; and the time by which the final arbitral award
must be issued by the arbitral panel. To the extent that the parties do not reach agreement on any procedural
or scheduling matters, including those described above, at such meeting, the matters that are not agreed upon
shall be governed by the rules of the Center for Public Resources. Throughout the process, the parties may
request interim decisions from the panel on any discovery disputes or disputes regarding procedure, by providing
written notice (or, if such is not practical given the exigent nature of a dispute, by telephonic notice) to its
party-arbitrator, who shall promptly communicate the nature of the dispute to the other two (2) arbitrators.
The panel shall decide all such disputes as promptly as practicable, and may require the parties to submit
written briefs on any such disputes. The panel's decision on any such dispute shall be binding and final. In
no event, however, unless the parties agree to the contrary, shall either party be restricted to taking fewer
than two (2) depositions. Moreover, in any event, unless the parties agree to the contrary, either party may
move for dismissal through summary judgment or for failure to state a claim pursuant to the standards of the
Federal Rules of Civil Procedure and the arbitrator shall decide such motion(s) promptly and in accordance with
the relevant Federal Rule of Civil Procedure and standards and case law applicable thereto. Following the close
of the arbitration hearing no additional evidence may be submitted unless requested by the panel. In its
deliberations, the panel shall attempt, to the extent possible, to reach unanimous agreement on the award. The
award shall not provide for an award of attorneys' fees, unless otherwise agreed to by the parties. If
unanimous agreement cannot be reached, the award shall be issued by a majority of the members of the panel. The
award may be enforced by any court of competent jurisdiction. Each party shall be responsible for compensating
its party-arbitrator and for one-half the compensation of the neutral arbitrator.
[Signature page follows.]
The parties hereby agree to all of the above terms and signify their agreement by their signatures or, in
the case of the Company, the signatures of their duly authorized representatives below.
By executing this Agreement, Executive and Company hereby certify, represent and warrant that they have
read this Separation Agreement, General Release of All Claims and Covenant Not to Xxx and understands all of its
terms and specifically agrees to each of its terms.
Signed in duplicate originals as of the date this 18th day of November, 2002.
EXECUTIVE COMPANY
/s/ Xxxxxxx X. Xxxxxxx /s/ Xxxxxxxxxxx Xxxxxx
Xxxxxxx X. Xxxxxxx Xxxxxxxxxxx Xxxxxx
President
Address: Tropical Sportswear Int'l
0000 Xxxxxx Xxxx Xxxxxxxxxxx
Xxxxxx, Xxxxxxx 00000
/s/ Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxxx Xxxxxx
President
Savane International Corp.
