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EXHIBIT 10.35
EMPLOYMENT SEPARATION AGREEMENT
THIS EMPLOYMENT SEPARATION AGREEMENT (this "Agreement") is
made and entered into as of the 5th day of July, 2001, by and between XXXXX
ENTERPRISES, INCORPORATED, a Florida corporation ("Company"), and XXXXX X.
XXXXX, an individual ("Employee").
RECITALS:
A. Pursuant to that certain Employment Agreement dated
July 31, 2000, by and between Company and Employee (the "Employment Agreement"),
Employee is currently employed by Company as an executive officer of Company.
B. The parties have agreed to end the Employee's
employment with Company.
C. Employee and Company have reached agreement on the
terms of Employee's departure, and both parties view their separation as
amicable.
NOW, THEREFORE, in consideration of the premises and covenants
contained in this Agreement, the parties hereto, intending to be legally bound,
agree as follows:
1. Recitals. The above recitals are true and correct and are made
a part hereof.
2. Termination of Employment Agreement. Company and Employee
hereby agree that, except as specifically provided in this Agreement, the
Employment Agreement is terminated effective as of the date hereof, and except
as set forth in Section 5 below and except as otherwise specifically provided in
this Agreement, neither Company nor Employee shall have any further rights,
obligations, or duties under the Employment Agreement as of the date hereof.
3. Separation Payments. In consideration of Employee's agreement
to the terms of this Agreement, Company will pay Employee the following amounts
(the "Separation Payments"):
a. For the period beginning on the date hereof through
July 30, 2003 (the "Post-Employment Period"), Company will pay to Employee an
amount equal to the Liquidated Damages amount of $2,230.77 per week as set forth
on Exhibit A to the Employment Agreement. Such Liquidated Damages amount shall
be paid in bi-weekly payments of $4,461.54, subject to applicable tax
withholding as W-2 income and reported in accordance therewith, such first
payment to be made on the next regularly scheduled day for corporate payroll
following the eighth (8th) day after the date Employee executes this Agreement.
b. For the period beginning on the date hereof through
July 30, 2003 (the "Non-Compete Period"), Company will pay to Employee an amount
equal to the Non-Compete Payments of $2,230.77 per week as set forth on Exhibit
A to the Employment Agreement. Such Non-Compete Payments shall be paid for the
duration of the Non-Compete Period in bi-weekly payments of $4,461.54, subject
to applicable tax withholding as W-2 income and reported in accordance
therewith, such first payment to be made on the next regularly scheduled day for
corporate payroll following the eighth (8th) day after the date Employee
executes this Agreement.
c. On the eighth (8th) day following the date Employee
executes this Agreement, Company shall pay to Employee, in a lump sum, SIXTEEN
THOUSAND THREE HUNDRED AND FORTY Dollars and 61/100 ($16,340.61), less
applicable tax withholdings, representing the dollar value of all of Employee's
accrued but unused vacation as of the date hereof.
d. As promptly as practicable following the execution of
this Agreement, and in no event later than the eighth (8th) day following the
date Employee executes this Agreement, the Company will, in accordance with the
Company's standard expense reimbursement policies, reimburse Employee for all
appropriately documented travel and other Company expense items submitted by
Employee for reimbursement. Thereafter, the Company will, in accordance with the
Company's standard expense reimbursement policies, promptly reimburse
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Employee for any additional Company expenses appropriately incurred by Employee
during his employment with the Company as credit card and other charges are
received by Employee and submitted to the Company with appropriate documentation
for reimbursement.
4. Continuation of Benefits. In accordance with the provisions of
the Consolidated Omnibus Reconciliation Act of 1986 ("COBRA"), the Company is
required to advise Employee that upon separation of service, Employee (and his
spouse) may elect to continue, for a period of up to eighteen (18) months, the
same health insurance coverage, dental insurance coverage, vision insurance
coverage and prescription drug plan that is being provided to Employee and his
spouse by Company as of the date of this Agreement. Employee will be notified of
his rights under COBRA and the cost of such continuation of coverage by letter.
Employee must affirmatively elect such coverage in order to take advantage of
this right. In the event Employee timely makes such election, beginning on the
date hereof and continuing for the first six (6) months of the Post Employment
Period, Company shall cover the cost to Employee to obtain such COBRA benefits.
Upon expiration of the first six (6) months of the Post Employment Period,
Employee must make any required payments to maintain the benefits of COBRA,
absent which such benefits will terminate. Notwithstanding the foregoing, in the
event that Employee obtains full-time employment prior to the expiration of the
first six (6) months of the Post-Employment Period, then Company's obligation to
provide the benefits described in this Section 4 shall terminate upon the first
day on which Employee would be eligible to receive benefits from his new
employer. Additionally, the Company acknowledges that it provided certain tax
equalization benefits to Employee pursuant to the Company's Expatriate
Assistance program during Employee's assignment in Amsterdam, The Netherlands. A
copy of the tax equalization benefit is attached as Exhibit "A." Provided that
the Employee files his Dutch and U.S. tax returns within the time periods
provided by law, the tax equalization benefits accruing to Employee due to his
assignment in Amsterdam, shall survive the Employee's separation from employment
with the Company.
5. Survival of Certain Provisions of Employment Agreement.
Notwithstanding anything to the contrary set forth in this Agreement, Section 4
and Section 5 of the Employment Agreement shall continue to remain in full force
and effect in accordance with the terms thereof, and Employee shall continue to
be bound by the terms thereof (as well as by any other terms of the Employment
Agreement relating to the enforceability and construction of said Sections 4 and
5), subject to the following:
a. The obligations of Employee under Section 5 of the
Employment Agreement shall continue until the expiration of twenty-four (24)
months after the date Employee executes this Agreement.
b. Notwithstanding anything set forth in the Employment
Agreement, but subject to Section 5(c) and 5(d) below, Employee shall not be
limited in his ability to accept employment with, consult with, or otherwise be
associated with in any capacity, any corporation, partnership, firm or other
business organization that is not a direct competitor of the core outsourcing
business, consisting of customer care, technical support and call center
management, of the Company substantially as such business is conducted on the
date hereof (the "Core Business"), nor shall Employee be limited in his ability
to deal with any customers or clients of the Company or its subsidiaries so long
as such dealings (i) are not in, and would not result in, direct competition
with the Core Business, and (ii) do not otherwise violate Section 5(c) below.
Other than as specifically set forth in this Agreement, the Company shall not be
obligated to pay any additional compensation as a condition to Employee's
continuing obligation to comply with Section 5 of the Employment Agreement.
c. In addition to the provisions of Section 5 of the
Employment Agreement, Employee hereby agrees that he will not, at any time
during the period of twenty-four (24) months after the date Employee executes
this Agreement, provide or solicit the opportunity to provide any services that
would be in direct competition with the Core Business to any persons or entities
who, at any time prior to the expiration of the period of twenty-four (24)
months after the date Employee executes this Agreement, are or were customers or
clients of Company or its subsidiaries. Additionally, Employee hereby agrees
that he will not, at any time during the period of twenty-four (24) months after
the date Employee executes this Agreement, provide or solicit the opportunity to
provide to any Qualified Customer (as defined below) the types of products or
services that the Company or its subsidiaries provide, provided, or proposed to
provide as part of its Core Business to any such Qualified Customer at any time
during Employee's employment by the Company. For purposes hereof, the term
"Qualified Customer" means any person or entity who or which was a customer or
client of the Company at any time during Employee's employment by the Company,
as well as any prospective customer or client with which the Company has had, at
any
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time during the 6-month period prior to the date of this Agreement, substantive
discussions regarding the possible provision of services by the Company.
d. In addition to the provisions of Section 5 of the
Employment Agreement, Employee hereby agrees that he will not, at any time
during the period of twenty-four (24) months after Employee executes this
Agreement, retain or attempt to retain, directly or indirectly, for himself or
for any other person or entity, the services of any person who is an employee of
the Company or any subsidiary thereof on the date of this Agreement or at any
time during such twenty-four (24) month period, unless Employee first obtains
the written consent of the Company (which consent will not be unreasonably
withheld).
6. Waiver and Release. In consideration of the obligations and
duties of Company set forth herein, Employee agrees as follows:
a. Employee hereby knowingly and voluntarily waives,
releases and forever discharges Company from any and all claims, demands,
damages, lawsuits, obligations, promises, and causes of action, both known and
unknown, whether now existing or arising in the future, at law or in equity,
relating to or arising out of Employee's employment with Company, the Employment
Agreement, the Deferred Compensation Plan, compensation by Company, or
separation of employment from Company.
b. Employee shall not disclose, either directly or
indirectly, any information whatsoever regarding any of the terms or the
existence of this Agreement to any person or organization, including but not
limited to members of the press and media, present and former employees of
Company, and persons or companies who do business with Company. The only
exceptions to Employee's promise of confidentiality herein is that Employee may
reveal such terms of this Agreement (i) as is necessary to comply with a request
made by the Internal Revenue Service; (ii) as otherwise compelled by a court or
agency of competent jurisdiction; (iii) as required by law; (iv) as is necessary
to comply with requests from Employee's accountants, attorneys, financial
advisors, or other professional advisors for legitimate business purposes or
personal financial planning, (v) to his immediately family members solely for
personal planning purposes (provided that such immediate family members
undertake to maintain the complete confidentiality of this Agreement), or (vi)
when and if this Agreement is included by the Company as a part of a securities
law filing that is actually filed with the Securities and Exchange Commission.
c. Employee agrees to release and forever discharge by
this Agreement the Company from all liabilities, causes of actions, charges,
complaints, suits, claims, obligations, costs, losses, damages, injuries,
rights, judgments, attorneys' fees, expenses, bonds, bills, penalties, fines,
and all other legal responsibilities of any form whatsoever whether known or
unknown, whether suspected or unsuspected, whether fixed or contingent, whether
in law or in equity, including but not limited to those arising from any acts or
omissions occurring prior to the effective date of this Agreement, including
those arising by reason of any and all matters from the beginning of time to the
present, arising out of his past employment with, compensation during, and
resignation from the Company. Employee specifically releases claims under all
applicable state and federal laws, including but not limited to, Title VII of
the Civil Rights Act of 1964 as amended, the Fair Labor Standards Act, the
Rehabilitation Act of 1973, the Family Medical Leave Act, the Employee
Retirement Income Security Act, the Consolidated Omnibus Reconciliation Act of
1986, the Americans with Disabilities Act, the Florida Civil Rights Act of 1992,
the Workers' Compensation Act, the Equal Pay Act, the Age Discrimination in
Employment Act of 0000 (Xxxxx 00, Xxxxxx Xxxxxx Code, Section 621, et seq.)
("ADEA"), as well as all common law claims, whether arising in tort or contract.
d. In addition to the other provisions in this
Agreement, Employee acknowledges that the information in the following
paragraphs is included for the express purpose of complying with the Older
Workers' Benefits Protection Act, 29 U.S.C.ss.626(f):
i. I, Xxxxx X. Xxxxx, was over 40 years of age
when I resigned my employment and when I signed this Agreement. I realize there
are many laws and regulations prohibiting employment discrimination or otherwise
regulating employment or claims related to employment pursuant to which I may
have rights or claims, including the Age Discrimination in Employment Act of
1967, as amended (the "ADEA"). I hereby waive and release any rights or claims I
may have under the ADEA.
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ii. By signing this Agreement, I state that I am
receiving compensation and severance benefits to which I was not otherwise
entitled. I am waiving and releasing all claims against the Company that I may
have based on my age. I am not waiving any claim or action under the ADEA based
upon rights or claims that may arise after the date I sign this Agreement.
iii. I am being given continued compensation as
specified in Section 3 hereof in exchange for the release and waiver of all
claims that I am agreeing to herein. This continued compensation is in addition
to anything of value to which I am already entitled in that I am receiving this
continued compensation without having to perform services of an equal value.
iv. I was informed in writing that I could
consult with an attorney before signing this Agreement. I acknowledge that I was
given the opportunity to consider this Agreement for twenty-one (21) days before
signing it, and, if I sign it, to revoke it for a period of seven (7) days
thereafter. Regardless of when I signed this Agreement, I acknowledge that my
seven-day period will not be waived. No payments will be made to me until after
the seven-day revocation period expires.
7. Employment Recommendations; Non-disparagement. Company hereby
agrees that, in the event that a future prospective employer of Employee seeks
information from Company regarding the competence, experience, or abilities of
Employee, Company shall follow its standard human resource guidelines, policies,
and practices with respect to such inquiry. In addition, the parties shall each
refrain from making any written or oral statement or taking any action, directly
or indirectly, which the parties know or reasonably should know to be
disparaging or negative concerning Company or Employee, except as required by
law. The parties hereto shall also refrain from suggesting to anyone that any
written or oral statements be made which the parties know or reasonably should
know to be disparaging or negative concerning Company or Employee, or from
urging or influencing any person to make any such statement. This provision
shall include, but not be limited to, the requirement that the parties refrain
from expressing any disparaging or negative opinions concerning Company or
Employee, Employee's resignation from Company, any of Company's officers,
directors, or employees, or other matters relative to Company's reputation as an
employer or any other matters relative to Employee's reputation as an employee
or executive. Company's and Employee's promises in this subsection, however,
shall not apply to any judicial or administrative proceeding in which Employee
or Company is a party or in which Employee or Company has been subpoenaed to
testify under oath by a government agency or by any third party.
8. Resignation From Offices and Directorships. Employee hereby
resigns, effective as of the date hereof, from all offices, directorships, and
trusteeships which Employee holds with Company and any subsidiary or affiliate
of Company.
9. Securities Matters. For a period of 90 days following the date
hereof, Employee shall be subject to the conditions, restrictions, and
requirements applicable to executive officers of Company with respect to any
purchase, sale, transfer, disposition, or other transaction involving the common
stock of Company and shall not engage in any such transaction in violation of
such conditions, restrictions, or requirements.
10. Litigation Cooperation. Beginning on the date of this
Agreement and continuing at all times hereafter, Employee and Company shall,
without any additional compensation except as provided herein, provide each
other with full cooperation and reasonable assistance in connection with
Company's defense of (i) any litigation against Company, its officers, its
subsidiaries, or its affiliates pending as of the date hereof or (ii) any other
litigation against Company, its officers, its subsidiaries, or its affiliates
arising out of or relating to any circumstance, fact, event, or omission alleged
to occur while Employee was employed by Company. Employee shall at all times
promptly be reimbursed by the Company for any and all out-of-pocket expenses,
including travel expenses, that may be incurred by Employee in providing such
cooperation and assistance, and to the extent that Employee provides any such
assistance or cooperation after the Post-Employment Period, the Employee also
shall be compensated for his time in providing such cooperation and assistance
at a rate equivalent to a per diem based upon his base salary as in effect under
the Employment Agreement as of the date hereof. Such cooperation and assistance
shall include, but not be limited to, access for research, being available for
consultation, for deposition and trial testimony, and for availability and
execution of discovery-related documents such as interrogatories, affidavits,
requests for production,
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requests for admissions, and responses to each, as deemed necessary. Employee
and Company further agree to provide their good will and good faith in providing
honest and forthright cooperation in all other aspects of their defense of any
such litigation. Company hereby agrees that nothing set forth in this Agreement
shall be construed as limiting, adversely affecting, or altering Employee's
indemnification rights under the Company's Articles of Incorporation and/or
bylaws and under the Florida Business Corporation Act. The Company further
agrees that it will take no steps to limit or affect adversely any
indemnification rights currently available to the Employee and that the Company
will maintain throughout the Post-Employment Period in full force and effect for
the benefit of Employee officer and director liability insurance no less
favorable in terms or amount than that currently in place for the Company and
its officers and directors in such manner to cover for the Employee all periods
during which Employee served as an officer, director or employee of the Company.
11. Miscellaneous.
a. In the event any provision of this Agreement is found
to be unenforceable, void, invalid or unreasonable in scope, such provision
shall be modified to the extent necessary to make it enforceable, and as so
modified, this Agreement shall remain in full force and effect.
b. The paragraph headings in this Agreement are for
convenience only and do not form any part of or affect the interpretation of
this Agreement.
c. This Agreement may be executed in counterparts, each
of which shall be deemed an original of this Agreement and all of which, when
taken together, shall be deemed to constitute one and the same Agreement.
d. The waiver by any party of a breach of any condition
of this Agreement by the other party shall not be construed as a waiver of any
subsequent breach. No waiver of any right hereunder shall be effective unless in
writing and signed by the party against whom the waiver is sought to be
enforced.
e. The rights and obligations of the parties under this
Agreement shall inure to the benefit of, and shall be binding upon, their
respective heirs, executors, administrators, successors, assigns, subsidiaries,
affiliates, directors, officers, employees, representatives and agents, as
applicable.
f. This Agreement constitutes the entire agreement of
the parties with respect to the subject matter hereof and supersedes any
previous employment agreements or contracts, whether written or oral, between
Company and Employee.
g. This Agreement shall be construed under, and governed
by, the laws of the State of Florida.
h. Employee and Company acknowledge that each has had
the opportunity to read, study, consider and deliberate upon this Agreement, and
to consult with legal counsel, and both parties fully understand and are in
complete agreement with all of the terms of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
COMPANY: EMPLOYEE:
XXXXX ENTERPRISES, INCORPORATED XXXXX X. XXXXX
By:
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Xxxx X. Xxxxx, Chairman of the Board Xxxxx X. Xxxxx, individually
Date: July 5, 2001 Date: July 5, 2001
