EXHIBIT 10.23
SEPARATION AGREEMENT
AND GENERAL RELEASE
This Separation Agreement and General Release (the "Agreement") is
entered into as of March [22], 2004 ("Effective Date") between Xxxx Xxxxxx
("Employee") and MasTec, Inc. ("MasTec" or "Employer") who agree as follows:
1. Employees' employment shall terminate upon the execution of this
Agreement. The date of Employee's termination shall be referred to as the
Separation Date. 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 July 15, 2002 (the "Employment Agreement").
2. MasTec shall pay Employee the following ("Severance Benefits"):
(a) Those benefits set forth in Sections 11(f) and 11(g) of
the Employment Agreement including (a) his New Base Salary from the Separation
Date through July 14, 2004, subject to mitigation, (b) his bonus for senior
management for calendar year 2003, if the Compensation Committee of the Board of
Directors of MasTec, in its sole and absolute discretion, elects to award such
bonus; and (c) all benefits set forth in Section 4(b) of the Employment
Agreement;
(b) The Parties acknowledge that in accordance with Section
4(a)(ii) of the Employment Agreement, Employee's New Base Salary for the period
commencing July 15, 2003, is $306,837.00;
(c) The Company acknowledges Employee voluntarily forfeited
$33,133.63 of his compensation during 2003 as part of a Company cost cutting
measure. In addition, the Company acknowledges that it failed to increase
Employee's salary to the New Base Salary level as of January 1, 2004, and will
make retroactive payment on the difference from January 1, 2004 through the
Separation Date. The Company agrees to pay said amounts to Employee prior to
March [31], 2004; and
(d) Subject to the limitations set forth in Section 4(d) of
the Employment Agreement, all previously issued options (i.e., the 50,000
options awarded to Employee under his Employment Agreement and the 35,000
options awarded to Employee during the term of his employment) will vest in
accordance with the incentive stock option plan and their respective vesting
schedules provided, however, subject to the approval of the Compensation
Committee of the Board of Directors of MasTec (the "Compensation Committee"),
the vesting schedule for that portion of the Retained Options which have not
vested prior to March [22], 2006, shall be extended until May 2, 2006 (the
previously issued options, the "Retained Options"). The Retained Options shall
remain exercisable for a period of six (6) months after vesting, provided
however, that any Retained Options that vested prior to the Separation Date
shall remain exercisable for a period of six (6) months after the Separation
Date. MasTec shall submit such request for the extension of the vesting schedule
to the Compensation Committee for approval within fifteen (15) days of the
execution of this Agreement. The Retained Options will be converted to
non-qualified stock options and thus subject to the non-qualified stock option
plan upon the expiration of three (3) months following the Separation Date,
however the conversion of the Retained Options shall not affect the vesting or
exercising of the Retained Options. Employee's eligibility (i) to purchase stock
under MasTec, Inc.'s Non-Qualified Employee Stock Purchase Plan, (ii) to
participate in Employer incentive compensation or other compensation plans and
(iii) to participate in any other benefit plan of
Employer or its subsidiaries or affiliates is terminated as of the Separation
Date other than those benefits you are entitled to under Section 4(b) of the
Employment Agreement through July 14, 2004 . In the event the Compensation
Committee fails to approve the request of the extension of the vesting schedule
prior to April [19], 2004, Employee may, by April [26], 2004, terminate this
Agreement. Such notice shall be given as provided in Section 12(f) of the
Employment Agreement except that MasTec's address is modified to be: 000 Xxxxxxx
Xxxx, 00xx Xxxxx, Xxxxx Xxxxxx, Xxxxxxx 00000. If Employee fails to give such
written notice prior to April [26], 2004, Employee's right to terminate this
Agreement shall terminate.
3. Employee acknowledges that the Severance Benefits 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. Employee further acknowledges that all Life and disability coverage and
participation in the 401(k) Retirement Plan will end on the Separation Date.
4. 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.
5. 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, company automobile or other vehicle, corporate credit card,
laptop computer or other hardware, computer software of any kind, electronic
address book, portable telephone, radio, electronic beeper or other electronic
devices, equipment and all other property belonging to Employer 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.
6. In exchange for the Severance Benefits, 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, assigns and other representatives
(collectively, the "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 against Xxxxxxx Xxxx or to
any
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Director and Officer Liability protection to which he may be entitled as a
result of his employment as a corporate officer of MasTec..
7. In exchange for the Severance Benefits:
(a) Employee acknowledges and agrees that the Company's and
its subsidiary and affiliated companies' (collectively, the "COMPANIES")
telecommunications 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
7, the running of the Period of Non-Competition (but not of any of Employee's
obligations under this SECTION 7) 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
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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 7.
b. Telecommunications operators (such as Sprint, MCI, AT&T)
cable companies and other non construction or installation customers of the
Company shall not be considered engaged in and competitive with the Business.
8. 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, 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.
9. 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.
10. 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").
11. 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.
12. 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
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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 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.
13. 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").
14. 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.
15. 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.
16. 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.
17. 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.
18. 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.
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19. Employee acknowledges that, pursuant to the OWBPA, Employer advised
Employee, in writing, to consult with an attorney prior to executing this
Agreement.
20. 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 7 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") as modified by the following:
(a) the parties agree to use one arbitrator.
(b) if the parties cannot agree on the choice of the sole
arbitrator within ten (10) calendar days of the service of a
demand for arbitration, the parties shall select the sole
arbitrator in accordance with the procedures set for in AAA's
Employment Rules.
(c) the parties agree that document production requests are an
appropriate form of discovery and that each side will be
entitled to take up to six (6) depositions (including
deposition of experts, if any). The parties specifically
modify the Employment Rules to eliminate all other forms of
discovery.
(d) the parties agree to limit the total number of witnesses to be
called at trial (including expert witnesses, if any) to a
total of seven (7) per side.
This provision is a material inducement for Employer to enter into this
Agreement with Employee.
21. 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.
22. 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.
23. Employee will respond to all reasonable requests for advice and
consultation regarding business matters on which Employee has knowledge or
information arising from Employee's employment with Employer and will be
reimbursed by MasTec for all reasonable expenses associated with any such
cooperation. In addition, Employee agrees to provide information and participate
in litigation or other proceedings involving Employer now or in the future, as
reasonably requested by Employer or its legal counsel. Prior to the Separation
Date such assistance and response will be without charge to MasTec. After the
Separation Date the Parties will agree to the compensation to be paid to
Employee.
24. 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,
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AND THAT EMPLOYEE IS SIGNING THIS AGREEMENT VOLUNTARILY WITH THE FULL INTENT OF
RELEASING EMPLOYER OF ALL CLAIMS.
25. 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 March 22, 2004.
/s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
MASTEC, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
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Xxxxxx X. Xxxxxxxxxx, President and CEO
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