EXHIBIT 10.24
SEPARATION AGREEMENT
AND GENERAL RELEASE
This Separation Agreement and General Release (the "Agreement") is
entered into as of March 11, 2004 ("Effective Date") between Xxxxxx Xxxxxxxxx
("Employee") and MasTec, Inc. ("MasTec" or "Employer") who agree as follows:
1. Employee currently serves as Chief Financial Officer of MasTec, Inc.
2. Employees' employment shall terminate on the Effective Date. The
date of Employee's termination shall be referred to as the Separation Date. The
period of time between the Separation Date and December 31, 2004 shall be
referred to as the Term of this Separation Agreement. The Parties agree the
Employee is being terminated "without cause" as such term is defined in that
certain Employment Agreement entered into between MasTec and Employee dated
January 9, 2004 (the "Employment Agreement").
3. MasTec shall pay Employee the following ("Severance Benefits"):
(a) Those benefits set forth in Sections 11(f) and 11(g) of
the Employment Agreement but adjusted as follows: (a) his Base Salary from the
Separation Date through and including December 31, 2004, which base salary shall
not be subject to mitigation, and (b) all benefits set forth in Section 4(b) of
the Employment Agreement, provided only that with respect to Company benefits,
including medical, disability insurance, life insurance and the Company's
401(k), said benefits shall terminate earlier in the event that Employee
receives like or similar benefits from a different employer between the
Separation Date and December 31, 2004);
(b) The Parties acknowledge that in accordance with Section
4(a) of the Employment Agreement, Employee's Base Salary for the period
commencing January 9, 2004, is $300,000.00;
(c) The Company acknowledges Employee voluntarily forfeited
$30,000.00 of his compensation during 2003 as part of a Company cost cutting
measure. The Company agrees to pay said amount to Employee within ten (10) days
of execution of this Separation Agreement; and
(d) Subject to the limitations set forth in Section 4(d) of the Employment
Agreement, all previously issued options (i.e., options previously awarded to
Employee in accordance with the terms of the 1994 Stock Incentive Plan and the
1999 Non-Qualified Employee Stock Option Plan as well as the options to purchase
one hundred thousand (100,000) shares of common stock of the Company granted
under the Employment Agreement) will vest in accordance with the incentive stock
option plan and their respective vesting schedules provided. The Options shall
remain exercisable for a period of six (6) months after the last options vest.
4. During the term of this Separation Agreement, Employee shall
reasonably co-operate and assist the Company on all matters or issues pertaining
to Employee's prior duties with the Company, as requested by the Company's Chief
Executive Officer or the Company's General Counsel, as follows.
a. During the term of this Separation Agreement, (the "Consulting
Period"), Employee shall provide such consulting services
("Consulting Services") (i) as may be reasonably necessary or
appropriate in order to effect an orderly transition
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of Employee's responsibilities to one or more other employees
of MasTec and to ensure that MasTec is aware of all matters
that were handled by Employee during his employment by MasTec
and (ii) as may be reasonably requested by MasTec in
connection with general corporate matters.
b. During the Consulting Period, Employee shall not have any
formal schedule of duties or assignments, but (i) for the
first ninety (90) days after the Separation Date (the "Initial
Consulting Period"), Employee shall make himself available for
up to 20 hours per week to perform the Consulting Services and
(ii) during the remainder of the Consulting Period, Employee
shall make himself available for up to 20 hours per month to
perform the Consulting Services. Employee shall receive
reasonable advance notice from MasTec of the time requested
for such Consulting Services, which time shall not
unreasonably interfere with Employee's other activities.
Employee may perform Consulting Services by telephone and may
be required to travel in connection with his performance of
Consulting Services.
c. Employee agrees that Consulting Services provided by him
during the Initial Consulting Period shall be provided without
charge to MasTec.
d. For all other services rendered to Employer during the term of
this Separation Agreement (except as limited by Paragraph 8,
below), the Employee shall be paid at the rate of $350 per
hour (the "Consulting Fee").
e. MasTec agrees to reimburse Employee within thirty (30) days
for reasonable expenses incurred by him in connection with his
rendering of Consulting Services to the extent such expenses
are reimbursable under MasTec's policy for business expenses
as provided to him from time to time. Employee will provide
appropriate documentation of expenses as required under said
policy.
5. Employee agrees that the Severance Benefits constitute sufficient
consideration for this Agreement. Employee acknowledges and agrees that no
consideration other than the Severance Benefits as provided for by this
Agreement has been or will be paid or furnished by Employer. Employee
acknowledges that the Severance Benefits includes compensation for any right
Employee may have or have had to (a) vacation, holiday, sick or personal days or
pay in lieu thereof, and (b) bonus, profit sharing or other incentive
compensation. Employee acknowledges that the Severance Benefits and any
Consulting Fee paid under this Agreement are compensation and will be included
in either a W-2 earnings statement or a 1099 statement, and are subject to
applicable payroll withholding taxes.
6. Employee agrees, as a condition precedent to receipt of the
Severance Benefits pursuant to this Agreement, that Employee will deliver or
cause to be delivered to Employer not later than the Separation Date, (a) all
keys, ID cards, corporate credit card, radio, electronic beeper or other
electronic devices, equipment and all other property belonging to Employer
(except as provided below) and (b) all originals and copies of any drawings,
books, manuals, letters, notes, notebooks, reports, financial statements,
business plans, projections, data base, or documents, materials or information
in Employee's possession or control containing or describing any Confidential
Information (as defined below) or otherwise relating to Employer or any of its
subsidiaries or affiliates. Employee shall retain for the term of this
Separation Agreement, the company automobile or other vehicle, the laptop
computer, computer software of any kind on said laptop, the electronic address
book, and the portable telephone now used by the Employee, which shall be used
by Employee in connection with work with the Company during that term, and which
shall be returned to the Company at the end of said same term.
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7. In exchange for the Severance and other Benefits under this
Agreement, Employee and her heirs, representatives, executors, successors and
assigns (collectively, the "Releasors"), acquit, release and forever discharge
MasTec and its agents, servants, officers, directors, shareholders employees,
predecessors, subsidiaries, affiliates, successors and assigns (collectively,
the " MasTec Released Parties") from all claims, demands, debts, damages,
liabilities, obligations, actions or causes of action, whether known or unknown,
foreseen and unforeseen, fixed, accrued or contingent, liquidated or
unliquidated, matured or unmatured, direct or derivative or consequential,
arising from contract, tort, statute, regulation or otherwise (collectively,
"Claims"), including, without limitation (a) Claims for fraud, intentional
misconduct, simple or gross negligence, criminal conduct, slander or libel, (b)
Claims in connection with Employee's employment (including wrongful termination,
breach of express or implied contract, unpaid wages, accrued vacation, holidays
or sick days, employee benefits, or under any federal, state, or local
employment laws, regulations, or executive orders prohibiting discrimination of
any kind, including discrimination on the basis of age, race, sex, sexual
preference, marital status, national origin, religion, handicap, and disability
discrimination, such as the Age Discrimination in Employment Act, Title VII of
the Civil Rights Act of 1964, the Civil Rights Act of 1866, the Employee
Retirement Income Security Act of 1974, the Americans with Disabilities Act of
1990, the Family and Medical Leave Act, and Florida's Civil Rights Act, and (c)
any other Claim of any kind whatsoever, arising out of, resulting from or in any
way connected with any act, omission, fact, event, occurrence, matter,
agreement, happening, representation, warranty, promise or transaction of any
kind that the Releasors ever had or may now have against the Released Parties,
from the beginning of time to the date of this Agreement. Employee is not
releasing any right or claims he may have personally to any Director and Officer
Liability protection to which he may be entitled as a result of his employment
as a corporate officer of MasTec.
8. MasTec and the MasTec Released parties acquit, release and forever
discharge Employee and the Employee Releasors from all Claims of any kind
whatsoever, arising out of, resulting from or in any way connected with any act,
omission, fact, event, occurrence, matter, agreement, happening, representation,
warranty, promise or transaction of any kind that MasTec or the masTec Released
Parties ever had or may now have against Employee or the Employee Releasors,
from the beginning to time to the date of this Agreement, except for Claims
arising from (a) any criminal activity by Employee, (b) any fraud or breach of
fiduciary duty committed by Employee or (c) Employee's obligations under this
Agreement.
MasTec agrees that it will (a) indemnify and hold Employee harmless for any
claims, demands, damages, liabilities, losses, costs and expenses (including
attorneys' and paralegal fees and court costs) incurred or suffered by Employee
in connection with Employee's service as an executive officer of MasTec or its
affiliates or in connection with Employee's service under this Agreement to the
fullest extent (including advancement of expenses) permitted by Florida
corporate law for the indemnification of officers and directors of a Florida
corporation and (b) will include Employee as a covered employee under MasTec's
policy until the applicable statutes of limitations have expired.
9. Employee agrees that he will cooperate and assist MasTec in
connection with any legal, quasi-legal, administrative or other similar
proceeding, including any external or internal investigation, involving MasTec
or any of its subsidiaries or affiliates, by furnishing such information and
appropriate services (including, if required, testimony) any by making himself
available to MasTec as may be reasonably required by MasTec from time to time,
To the extent that any such legal, quasi-legal, administrative or other similar
proceeding, including any external or internal investigation involves a defense,
in whole or part, of Employee's service, actions or inaction as an executive
officer of MasTec or its affiliates, Employee's cooperation and assistance shall
be without charge to MasTec.
10. In exchange for the Severance Benefits, Employee acknowledges and
agrees that the Company's and its subsidiary and affiliated companies'
(collectively, the "COMPANIES")
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infrastructure services businesses (the "BUSINESS") are conducted throughout the
United States of America and the Commonwealth of Canada. Until two (2) years
following the Separation Date and within the United States of America and the
Commonwealth of Canada (including their possessions, protectorates and
territories, the "Territory"), Employee will not (whether or not then employed
by the Company for any reason), without the Company's prior written consent:
(i) directly or indirectly own, manage, operate, control, be
employed by, act as agent, consultant or advisor for, or participate in the
ownership, management, operation or control of, or be connected in any manner
through the investment of capital, lending of money or property, rendering of
services or otherwise, with, any business of the type and character engaged in
and competitive with the Business. For these purposes, ownership of securities
of one percent (1%) or less of any class of securities of a public company will
not be considered to be competition with the Business;
(ii) solicit, persuade or attempt to solicit or persuade or
cause or authorize directly or indirectly to be solicited or persuaded any
existing customer or client, or potential customer or client to which the
Companies have made a presentation or with which the Companies have been having
discussions, to cease doing business with or decrease the amount of business
done with or not to hire the Companies, or to commence doing Business with or
increase the amount of Business done with or hire another company;
(iii) solicit, persuade or attempt to solicit or persuade or
cause or authorize directly or indirectly to be solicited or persuaded the
business of any person or entity that is a customer or client of the Companies,
or was their customer or client within two (2) years prior to cessation of
Employee's employment by any of the Companies or any of their subsidiaries, for
the purpose of competing with the Business; or
(iv) solicit, persuade or attempt to solicit or persuade, or
cause or authorize directly or indirectly to be solicited or persuaded for
employment, or employ or cause or authorize directly or indirectly to be
employed, on behalf of Employee or any other person or entity, any individual
who is or was at any time within six (6) months prior to cessation of Employee's
employment by the Companies, an employee of any of the Companies.
If Employee breaches or violates any of the provisions of this SECTION
9, the running of the Period of Non-Competition (but not of any of Employee's
obligations under this SECTION 9) will be tolled with respect to Employee during
the continuance of any actual breach or violation. In addition to any other
rights or remedies the Company may have under this Agreement or applicable law,
the Company will be entitled to receive from Employee reimbursement for all
attorneys' and paralegal fees and expenses and court costs incurred by the
Companies in enforcing this Agreement and will have the right and remedy to
require Employee to account for and pay over to the Company all compensation,
profits, monies, accruals or other benefits derived or received, directly or
indirectly, by Employee from the action constituting a breach or violation of
this SECTION 9.
11. Employee permanently, unequivocally and unconditionally waives any
and all rights Employee may have, may have had in the past, or may have in the
future to seek, obtain or resume employment with Employer. Employee further
understands that Employer is under no obligation,
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presently or at any time in the future, to accept Employee as an employee and
Employer may deny employment to Employee solely based upon this Agreement.
12. Employee represents and warrants that no person other than
signatories hereto had or has any interest in the matters referred to in this
Agreement, that Employee has the sole right and exclusive authority to execute
this Agreement, and that Employee has not sold, assigned, transferred, conveyed,
or otherwise disposed of any claim or demand relating to any matter covered by
this Agreement.
13. Employee agrees to indemnify and hold Employer harmless from and
against any and all claims, including Employer's court costs and attorneys' fees
arising from or in connection with any claim, action, or other proceeding made,
brought, or prosecuted, or caused or permitted to be commenced or prosecuted, by
Employee, Employee's successor(s), or assign(s) contrary to the provisions of
the Agreement. It is further agreed that this Agreement will be deemed breached
and a cause of action accrued thereon immediately upon the commencement of any
action contrary to this Agreement, and in any such action this Agreement may be
pleaded by the Employer, or any of them, both as a defense and as a counterclaim
or cross-claim in such action. This paragraph shall not apply to actions brought
pursuant to the Age Discrimination in Employment Act ("ADEA") or the Older
Workers Benefit Protection Act ("OWBPA").
14. Employee agrees that all matters relating to this Agreement are
strictly confidential and that Employee and/or Employee's attorney will not
disclose or disseminate any information concerning any term or terms hereof to
any third person or persons. Any disclosure or dissemination by Employee will be
regarded as a breach of this Agreement and a cause of action will immediately
accrue for damages, including, but not limited to, the amount paid to Employee
under this Agreement.
Employee acknowledges that as a result of Employee's employment with Employer,
Employee has gained knowledge of, and access to, proprietary and confidential
information and trade secrets of Employer and its subsidiaries and affiliates,
including, without limitation, (1) the identity of customers, suppliers,
subcontractors and others with whom they do business; (2) their marketing
methods and strategies; (3) contract terms, pricing, margin, cost information
and other information regarding the relationship between them and the persons
and entities with which they have contracted; (4) their services, products,
software, technology, developments, improvements and methods of operation; (5)
their results of operations, financial condition, projected financial
performance, sales and profit performance and financial requirements; (6) the
identity of and compensation paid to their employees, including Employee; (7)
their business plans, models or strategies and the information contained
therein; (8) their sources, leads or methods of obtaining new business; and (9)
all other confidential information of, about or concerning the business of
Employer and its subsidiaries and affiliates (collectively, the "Confidential
Information"). Employee further acknowledges that such information, even though
it may be contributed, developed or acquired by Employee, and whether or not the
foregoing information is actually novel or unique or is actually known by
others, constitutes valuable assets of Employer developed at great expense which
are the exclusive property of Employer or its subsidiaries and affiliates.
Accordingly, Employee will not, at any time, either during or subsequent to the
Term, in any fashion, form or manner, directly or indirectly, (i) use, divulge,
disclose, communicate, provide or permit access to any person or entity, any
Confidential Information of any kind, nature or description, or (ii) remove from
Employer's or its subsidiaries' or affiliates' premises any notes or records
relating thereto, or copies or facsimiles thereof (whether made by electronic,
electrical, magnetic, optical, laser acoustic or other means) except in the case
of both (i) and (ii), (A) as reasonably required in the performance of
Employee's services to Employer under this Agreement, (B) to responsible
officers and employees of Employer who are in a contractual or fiduciary
relationship with Employer and who have a need for such information for purposes
in the best interests of Employer, and (C) for such information which is or
becomes generally available to the public other than as a result of an
unauthorized disclosure by
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Employee. Employee acknowledges that Employer would not enter into this
Agreement without the assurance that all Confidential Information will be used
for the exclusive benefit of Employer.
15. The prevailing party will be entitled to any attorneys' fees and
court costs incurred in enforcing this Agreement or in defending any claim
brought in violation hereof, except that this Paragraph shall not apply to
actions brought pursuant to the Age Discrimination in Employment Act ("ADEA") or
the Older Workers Benefit Protection Act ("OWBPA").
16. Employee fully understands that if any fact with respect to which
this Agreement is executed is found hereafter to be other than or different from
the facts in that connection now believed by Employee to be true, he expressly
accepts and assumes the risk of such possible difference in fact and agrees that
this Agreement will be and remain effective notwithstanding such difference in
fact.
17. Employee represents and agrees that he has not and will not make or
file or cause to be made or filed any claim, charge, allegation, or complaint,
whether formal, informal, or anonymous, with any governmental agency, department
or division, whether federal, state, or local, relating to Employer in any
manner, including without limitation, Employer's business or employment
practices.
18. Employee agrees that he will not make any statements about or
relating to MasTec or its affiliates, its officers, directors, shareholders,
agents or independent contractors which are disparaging, critical or likely to
cause embarrassment. In the event Employee becomes employed by a customer of the
Company, Employee agrees not to directly or indirectly negatively impact the
Company's relationship with said customer. MasTec shall not make any statements
about or relating to Employee that are disparaging, critical or likely to cause
embarrassment.
19. Employer shall provide Employee with a positive reference.
20. Nothing contained in this Agreement shall preclude the Employer or
the Employee from disclosing information as may be reasonably necessary in any
legal or administrative proceeding, provided however that Employer or Employee
shall be advised of such disclosure and that the parties to this Agreement will
cooperate in obtaining reasonably necessary confidentiality orders.
21. Employee acknowledges that violation of the Agreement may give rise
to irreparable injury to Employer, inadequately compensable in damages.
Accordingly, Employer may seek and obtain injunctive relief against the breach
or threatened breach of the foregoing, in addition to any other legal remedies
which may be available and which legal remedies are not waived by Employer's
seeking injunctive relief. Employer acknowledges and agrees that the covenants
contained herein are necessary for the protection of Employer's legitimate
business interests.
22. Pursuant to the provisions of the Older Workers Benefit Protection
Act (OWBPA), which applies to Employee's waiver of rights under the Age
Discrimination in Employment Act, Employee has had a period of at least
twenty-one (21) days within which to consider whether to execute this Agreement.
Also pursuant to the OWBPA, Employee may revoke the Agreement within seven (7)
days of its execution. It is specifically understood that this Agreement will
not become effective or enforceable until the seven-day revocation period has
expired. Consideration for this Agreement will not be paid until the end of the
seven-day revocation period or, if paid before the expiration of the seven-day
revocation period, must be refunded in full to revoke this Agreement.
23. Employee acknowledges that, pursuant to the OWBPA, Employer advised
Employee, in writing, to consult with an attorney prior to executing this
Agreement
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24. This Agreement does not constitute an admission of a violation of
any law, order, regulation, or enactment, or of wrongdoing of any kind by
Employer and is entered into by the parties solely to end any controversy
between them. This Agreement will be governed by and construed and enforced in
accordance with the laws of the State of Florida, without regard to its conflict
of laws rules. The parties agree to submit any claims arising from a breach of
this Agreement, other than those by MasTec claiming a breach of paragraph 9 for
which MasTec shall have the right to seek injunctive relief in state or federal
Court in Miami-Dade County, to binding arbitration with the American Arbitration
Association ("AAA") in Miami, Florida in accordance with the National Rules for
the Resolution of Employment Disputes in effect at the time of filing (the
"Employment Rules").
This provision is a material inducement for Employer to enter into
this Agreement with Employee.
25. The waiver by Employer in writing of any provision of this
Agreement will in no manner affect the right to enforce the same, and will not
be construed to be a waiver by Employer of any succeeding breach of such
provision or a waiver of any breach of any other provision.
26. This Agreement represents the entire understanding and agreement
between the parties hereto with respect to the subject matter hereof and there
are no promises, agreements, conditions, undertakings, warranties, or
representations, whether written or oral, express or implied, between the
parties other than as set forth herein. This Agreement cannot be amended,
supplemented, or modified except by an instrument in writing signed by the
parties against whom enforcement of such amendment, supplement or modification
is sought. Employee will make no claim and waives any right Employee may now
have or may hereafter have based upon any alleged oral alteration, amendment,
modification, or any other alleged change in this Agreement.
27. This Agreement may be executed in counterparts, each of which will
be considered an original but which will constitute one and the same agreement.
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28. EMPLOYEE FURTHER STATES THAT HE HAS CAREFULLY READ THIS AGREEMENT,
IT HAS BEEN FULLY EXPLAINED TO HIM, THAT HE HAS HAD THE OPPORTUNITY TO HAVE IT
REVIEWED BY AN ATTORNEY, AND THAT HE FULLY UNDERSTANDS ITS FINAL AND BINDING
EFFECT, AND THAT THE ONLY PROMISES MADE TO HER TO SIGN THE AGREEMENT ARE THOSE
STATED IN THE AGREEMENT, AND THAT EMPLOYEE IS SIGNING THIS AGREEMENT VOLUNTARILY
WITH THE FULL INTENT OF RELEASING EMPLOYER OF ALL CLAIMS.
29. EMPLOYEE KNOWINGLY, VOLUNTARILY, IRREVOCABLY, UNCONDITIONALLY AND
INTENTIONALLY WAIVES THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
BASED ON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY
CLAIMS COVERED BY THIS AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PERSON OR PARTY AND
RELATED TO THIS AGREEMENT OR ANY CLAIMS; THIS IRREVOCABLE WAIVER OF THE RIGHT TO
A JURY TRIAL BEING A MATERIAL INDUCEMENT FOR EMPLOYER TO ENTER INTO THIS
AGREEMENT.
EXECUTED: as of July 16, 2004.
/s/ Xxxxxx Xxxxxxxxx
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Xxxxxx Xxxxxxxxx
MASTEC, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
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Xxxxxx X. Xxxxxxxxxx, President and CEO
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