EXHIBIT 1
AGREEMENT AND GENERAL RELEASE OF ALL CLAIMS
AGREEMENT AND GENERAL RELEASE OF ALL CLAIMS ("AGREEMENT") dated
as of November 26, 2002, between XXXXXXXXX INTERNATIONAL, INC. (the
"COMPANY") and A. XXXXXXX XXXXXXXX, XX. ("EMPLOYEE").
WHEREAS, Employee is employed by the Company as its Chief
Executive Officer; and
WHEREAS, Employee and the Company are parties to an Executive
Employment Agreement dated July 15, 1999 (the "EMPLOYMENT AGREEMENT") and a
Restated Executive Nonqualified Compensation Agreement dated February 9, 2000
(the "TOP HAT AGREEMENT"); and
WHEREAS, Employee desires to retire from his employment with the
Company and as the Chairman of the Company's Board of Directors, effective
November 26, 2002; and
WHEREAS, the Company and Employee desire to set forth the terms of
their agreement with respect to their respective rights and obligations
following Employee's retirement.
NOW, THEREFORE, in consideration of the mutual promises, covenants,
conditions and provisions set forth below, it is agreed as follows:
1. Employee hereby retires from employment with the Company, and hereby
resigns as Chief Executive Officer and Chairman of the Board of Directors of the
Company, effective November 26, 2002. Employee also hereby resigns, effective
November 26, 2002, from all positions as an officer or director of any
subsidiary of the Company.
2. In consideration of the mutual releases and additional promises set
forth herein, and in satisfaction of obligations owed to him under the
Employment Agreement and the Top Hat Agreement, Employee shall receive the
payments and benefits set forth in the Attachment accompanying and hereby
incorporated by reference into this Agreement (the "BENEFITS"). For purposes of
determining eligibility for and computing the amounts of the Benefit
Continuation described in paragraph 4 of the Attachment, Employee shall be
treated as if he were a full-time employee of the Company at the level of Chief
Executive Officer and Chairman of the Board of Directors. In the event that any
such Benefits cannot be provided to Employee under the terms of the Company's
benefit plans because Employee is not a full-time employee, the Company shall
make the same or substantially similar benefits (with no reduction in coverage
or amount) available to Employee under other arrangements at no additional cost
to Employee. If and to the extent required by applicable law, the Company shall
withhold taxes from payments made hereunder.
3. Employee acknowledges that the Benefits above include and satisfy any
and all amounts that may be due to Employee from the Company in connection with,
directly or indirectly, Employee's employment by the Company and the termination
thereof, including
without limitation, any wages, salary, bonus, and any other compensation or
benefit payment due Employee from the Company, under the Employment Agreement,
the Top Hat Agreement, or otherwise.
4. In exchange for the release granted to him hereunder, the Benefits and
other promises included herein, Employee hereby fully, finally and
unconditionally and forever releases, discharges and forgives, the Company and
all its subsidiaries, all of their successors and assigns, and any and all of
their past and present officers, directors, agents, representatives and
employees (whether acting as agents for the Company or in their individual
capacities) (the "RELEASEES"), from any and all claims, allegations, complaints,
proceedings, charges, actions, causes of action, demands, debts, covenants,
contracts, liabilities or damages of any nature whatsoever ("CLAIMS"), whether
now known or claimed, to whomever made, which Employee had, has or may have
against any or all of the Releasees for or by reason of any cause, nature or
thing whatsoever, up to the effective date of this Agreement, known or unknown,
including, by way of examples and without limiting the application of the
foregoing, any actions, causes of action or claims under any contract or any
federal, state or local decisional law, statutes, regulations or constitutions,
any claims for notice or pay in lieu of notice, or for wrongful dismissal,
discrimination, or harassment on the basis of any factor (including, without
limitation, any claim pursuant to or arising under the Age Discrimination in
Employment Act ("ADEA"), Title VII of the Civil Rights Act of 1964, as amended,
the Employee Retirement Income and Security Act of 1974, as amended, the
Americans with Disabilities Act, the Family and Medical Leave Act, the Florida
Civil Human Rights Act, the Florida Equal Pay Law, the Florida Wage
Discrimination Law, and any other federal, state or local legislation concerning
employment or employment discrimination), and any claims, asserted benefits or
rights arising by or under contract or implied contract, any alleged oral or
written contract or agreement for employment or services, any claims arising by
or under promissory estoppel, detrimental reliance, or under any asserted
covenant of good faith and fair dealing, and any claims for defamation, fraud,
fraudulent inducement, intentional infliction of emotional distress, or any
other tortious conduct, including personal injury of any nature and arising from
any source or condition, or pursuant to any other applicable employment
standards or human rights legislation, or for severance pay, salary, bonus,
commission, incentive or additional compensation, vacation pay, insurance or
benefits; PROVIDED, HOWEVER, that nothing in this paragraph 4 shall have an
effect on Employee's right to seek indemnification, to the fullest extent
permitted under applicable law and the bylaws of the Company, with respect to
liability incurred by him arising in any way from or in connection with his
service as an employee, officer or director of the Company or any of its
subsidiaries; PROVIDED FURTHER, HOWEVER, that nothing contained in this
paragraph 4 shall affect, impair or release or discharge any Claims arising
under or in connection with this Agreement, including, without limitation,
claims for payments of the Benefits or with respect to claims arising under any
existing benefit plans sponsored or provided by the Company under which he
retains any entitlement whatsoever. Employee agrees that all prior agreements
relating to Employee's employment or service with the Company or any of its
affiliates or the termination of such employment or service, including, without
limitation, the Employment Agreement and the Top Hat Agreement, are hereby
terminated as of the date of Employee's execution of this Agreement and shall
thereafter be of no further force or effect, except to the extent expressly
provided herein. In the event that the Retirement Benefit set forth in paragraph
3 of the Attachment is not paid on or prior to December 16, 2002 (other than as
a result of any action or inaction on the part of Employee or if, as
demonstrated to the reasonable satisfaction of Employee, (i) the failure to pay
is caused by an error or omission of an administrative or operational nature;
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(ii) funds were available to the Company to enable it to make the payment when
due; and (iii) such payment is made within three business days following receipt
of written notice from Employee of such failure to pay), the release granted
under this paragraph 4 shall cease to be effective. The Claims released pursuant
to the terms of this paragraph 4, subject to the exceptions set forth herein,
are referred to hereinafter as the "EMPLOYEE RELEASED CLAIMS."
5. In exchange for the release of Employee granted hereunder and other
promises included herein, the Company, on behalf of itself and each of it
subsidiaries and on behalf of all of their respective officers, directors,
and employees (collectively, the "COMPANY RELEASERS"), hereby fully, finally
and unconditionally and forever releases, discharges and forgives, Employee
and all of his heirs, successors and assigns (the "EMPLOYEE RELEASEES"), from
any and all Claims which are now known or claimed, to whomever made, which it
or they had, has or may have against Employee for or by reason of any cause,
nature or thing whatsoever, up to the effective date of this Agreement;
PROVIDED, HOWEVER, that nothing in this paragraph 5 shall affect, impair or
release or discharge any Claim arising under or in connection with this
Agreement. In the event that the Retirement Benefit set forth in paragraph 3
of the Attachment is not paid on or prior to December 16, 2002 (other than as
a result of any action or inaction on the part of Employee or if, as
demonstrated to the reasonable satisfaction of Employee, (i) the failure to
pay is caused by an error or omission of an administrative or operational
nature; (ii) funds were available to the Company to enable it to make the
payment when due; and (iii) such payment is made within three business days
following receipt of written notice from Employee of such failure to pay),
the release granted under this paragraph 5 shall cease to be effective. The
Claims released pursuant to the terms of this paragraph 5, subject to the
exceptions set forth herein, are referred to hereinafter as the "COMPANY
RELEASED CLAIMS."
6. Each party covenants, represents and warrants to the other party that
such party has not asserted and will not assert, threaten or commence any claim,
allegation, action, complaint or proceeding against (i) any of the Releasees, in
the case of Employee, with respect to any Employee Released Claims, or (ii) any
of the Employee Releasees, in the case of the Company, with respect to any
Company Released Claims. If Employee or the Company should, after the execution
of the Agreement make, pursue, prosecute, or threaten to make any claim or
allegation, or pursue or commence or threaten to commence any claim, action,
complaint or proceeding against (i) any of the Releasees, in the case of
Employee, with respect to any Employee Released Claims or (ii) any of the
Employee Releasees, in the case of the Company, with respect to any Company
Released Claims, this Agreement may be raised as, and shall constitute, a
complete bar to any such claim, allegation, action, complaint or proceeding, and
the party against whom any such claim is asserted shall be entitled to recover
from the other party all reasonable costs incurred by virtue of defending same,
including reasonable attorneys' fees and expenses, without altering or
diminishing the effectiveness of the release provisions provided under this
paragraph 6 and paragraphs 4 or 5 hereof (as applicable); PROVIDED, HOWEVER,
that nothing in this Agreement shall limit either Employee or the Releasees,
individually or collectively, from bringing any Claim arising under or in
connection with this Agreement. Employee and Company each represents that, as of
the date hereof, they have no knowledge of any basis for claims against the
other party.
7. Employee shall return to the Company all files, records, keys or other
Company property still in Employee's possession or under Employee's control, and
shall otherwise comply
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with the provisions of Section 6 of the Employment Agreement, which Employee and
the Company expressly agree shall survive Employee's resignation and the
execution of this Agreement and shall continue to be applicable to Employee.
Employee may retain records that relate solely to his own income, taxes, stock
purchase or sale or option grant or exercise, or that otherwise relate to his
personal business, all of which shall not be considered "Company property."
8. Employee shall not disparage the Releasees or any of them in any manner
whether to the media, or otherwise, and the Company Releasers shall not
disparage Employee in any manner, whether to the media or otherwise; PROVIDED,
HOWEVER, that nothing herein shall prohibit, or impose any liability or
obligation on either party for, (i) complying in good faith with any subpoena,
document production or informational request, interrogatory or other legal
process, order, judgment or directive issued by, or in any proceeding before,
any court, governmental agency or authority, arbitration panel or other tribunal
or making such other disclosures as such party may be compelled to make by law
or formal legal process, including, without limitation, the filing of all forms
required to be filed by Employee under Section 16 of the Securities Exchange
Act, or (ii) responding to any public statement by the other party which the
responding party in good faith believes to be in breach of this paragraph 8.
9. Employee and the Company expressly agree that all options held by
Employee to purchase stock of the Company, whether or not vested as of the date
hereof, shall be cancelled as of the date hereof and shall be of no further
force or effect.
10. Employee and the Company agree to keep this Agreement, the
negotiations and circumstances surrounding this Agreement, and the terms and
provisions of this Agreement strictly confidential and shall not disclose the
same to any person, party or other entity, including without limitation to
employees of the Company and/or its affiliated companies, other than (i) to
Employee's family members, their respective attorneys, tax advisors, or the
Internal Revenue Service, (ii) as either of them may be compelled to disclose by
law or formal legal process, including, without limitation, the filing of all
forms required to be filed by Employee under Section 16 of the Securities
Exchange Act, or (iii) to the extent that the existence, terms and/or provisions
of this Agreement are disclosed in a filing with the Securities and Exchange
Commission or any other governmental agency or authority, or in an exhibit to
any such filing, or otherwise become a matter of public record in accordance
with the other terms of this Agreement. Employee and the Company shall mutually
agree upon a public statement to be made in connection with the retirement of
Employee, and shall not otherwise comment or make any written or oral statement
thereon, except as and to the extent required by law. In addition, Employee
hereby consents to the filing of this Agreement by the Company as an exhibit to
any Current Report on Form 8-K that the Company will file with the Securities
and Exchange Commission after the execution of this Agreement, if the Company
believes such filing is appropriate. If this Agreement is filed as an exhibit to
a Form 8-K of the Company, this paragraph shall cease to be of any force or
effect.
11. Employee expressly agrees that, in return for the Benefits, the
provisions of Section 7 of the Employment Agreement shall survive Employee's
resignation and the execution of this Agreement and shall continue to be
applicable to Employee until July 15, 2004.
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12. The parties acknowledge and agree that any material breach by Employee
of paragraphs 7, 8, 10 or 11 hereof will damage the Company irreparably, the
specific amount of which will be difficult or impossible to ascertain. Employee
acknowledges that in the event of any such material breach by Employee, which
breach shall not have cured to the reasonable satisfaction of the Company within
seven days after Employee's receipt of written notice thereof from the Company,
the Company shall, in addition to such other remedies as may be available to the
Company at law or in equity in respect of such uncured breach, be entitled to
the following relief from a court of competent jurisdiction (without
establishing the likelihood of irreparable injury or posting bond or other
security): (a) injunctive relief, enjoining any such breach by Employee; and (b)
specific enforcement of Employee's obligation to perform Employee's obligations
hereunder.
13. The Company hereby agrees that Employee shall have no further
obligation to perform services to the Company under the Employment Agreement.
However, Employee agrees, in return for the Benefits and for no additional
consideration, that he shall make himself reasonably available to the Company at
mutually convenient times during normal business hours for up to 60 hours per
month (but not to exceed 20 hours in any week or seven hours in any day,
including travel time (if any)) through July 15, 2004, as a consultant in
respect of the Company's ongoing business operations, and in order to assist the
Company in its transition to a new Chief Executive Officer. If the Company
requests Employee to provide consulting services which extend beyond any of the
limitations referred to in the immediately preceding sentence, and if Employee
agrees in his sole discretion to perform them, then Employee shall be
compensated for his time spent in the performance of such services (including
travel time, if any) at such hourly rate, or on such other basis, as shall be
mutually agreed by the Parties, but in no event less than $300 per hour.
Employee shall perform such consulting services at such location(s), and in such
manner (E.G., in person or by telephone), as shall be mutually agreed by the
parties in each case, and if such services are to be performed at a Company
location, Employee shall be provided with the use of an office and access to
adequate assistance while he is present at such location(s). In addition,
Employee agrees to provide assistance to and shall cooperate with the Company,
upon its reasonable request, with respect to any actual or potential claims,
investigations, litigation, or other proceedings involving matters within the
scope of Employee's duties and responsibilities during Employee's employment
with the Company (it being understood that such assistance and cooperation shall
in no event require Employee to expend any funds, or to make himself available
for periods of time in excess of those referred to above with respect to
consulting services (determined on an aggregate basis with time spent on such
consulting services) or to subject himself to any personal liability or
obligation to the Company or any third party). Any such assistance or
cooperation shall be without charge by or payment to the Company until July 15,
2004 (subject to the limits referred to above with respect to consulting
services (determined on an aggregate basis with time spent on such consulting
services)), and thereafter shall be compensated, but only if and to the extent
requested by the Company, at a rate of $300 per hour for each hour spent in
connection therewith. If Employee receives any process or request requiring or
asking Employee to respond, appear, provide information or be available for
questioning relating to or potentially relating to any matters within the scope
of Employee's duties or responsibilities during Employee's employment with the
Company or any matter involving the Company or its affiliates, Employee shall,
to the extent permitted by law, provide the Company with written notice of such
process or request together with a copy (at the Company's expense) of all
documentation received by Employee with respect to such process or
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request. Such notice and documentation shall be delivered to the attention of
the General Counsel of the Company promptly upon Employee's receipt of such
process or request. Nothing in this paragraph 13 shall limit Employee's
entitlement to reimbursement for his expenses as provided in the Attachment
hereto.
14. Employee acknowledges that the Company has advised him to consult with
an attorney of his choosing prior to signing this Agreement. Employee
understands and agrees that he has the right and has been given the opportunity
to review this Agreement and, specifically, the release in paragraph 4, with an
attorney of his choice. Employee also understands and agrees that he has entered
into this Agreement freely and voluntarily. Employee has twenty-one (21) days to
consider the release of his rights under ADEA contained in paragraph 4, although
he may sign this Agreement sooner if he so desires. Furthermore, once Employee
has signed this Agreement, he has seven (7) additional days from the date he
signs it to revoke his consent to the release of his rights under ADEA.
Employee's release of his rights under ADEA will not become effective until
seven (7) days after the date he has signed this Agreement, and the Benefits set
forth in this Agreement shall not become due unless and until the period for
such revocation has expired with no such revocation by Employee having occurred,
but then shall be due retroactively to cover such period.
15. Employee has agreed to execute this Agreement in return for the
Benefits, certain of which Employee acknowledges he would not have been entitled
to receive but for his agreement to the terms set forth herein.
16. This Agreement shall not constitute an admission of any wrongdoing by
Employee, the Releasees or any of them, or of having caused any injury to the
other party by any acts or omissions on the part of Employee, Releasees or any
of them, or a violation of any statutory regulatory or common law obligation
owed to by any of them to the other party.
17. Each party represents and warrants to the other that:
(a) the entry into and performance of this Agreement by such party
is not prohibited, restricted or impaired in any manner by any law,
regulation, rule, court order, decree or agreement to which such party is
a party, or by which such party knows itself or himself to be bound;
(b) such party has the power and authority (in the case of the
Company, corporate and otherwise), and has sufficient legal capacity (in
the case of Employee) to execute, deliver and perform this Agreement;
(c) such party has not relied upon any statement or representation
of the other party, or of any other person with respect to or in
connection with the negotiation and entry into of this Agreement, except
as and to the extent fully set forth herein;
(d) the Company represents and warrants that its execution, delivery
and performance of this Agreement has been duly authorized by all
necessary action, and that the person executing this Agreement on behalf
of the Company is duly authorized to do so; and
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(e) this Agreement has been duly and validly executed and delivered
by such party and constitutes the valid and legally binding obligation of
such party, enforceable against them in accordance with its terms and
conditions.
18. This Agreement embodies the entire agreement between the parties
hereto with respect to the subject matter hereof. This Agreement may not be
amended, modified or terminated except by express written agreement between the
parties. This Agreement shall be construed and governed by the laws of the State
of Florida, as applicable to contracts to be performed wholly within that State.
Each party irrevocably consents to the jurisdiction of United States District
Court for the Southern District of Florida or of the state courts located
therein, which shall be the exclusive venue and forum for any action, suit or
proceeding arising under, with respect to or in connection with this Agreement.
Each party hereby waives any objection to the foregoing choices of venue and
forum based on FORUM NONCONVENIENS or similar principles. In the event of any
action for breach of this Agreement, or to enforce the rights and Benefits
provided for hereunder, the prevailing party shall be entitled to recover his or
its costs, including reasonable attorneys' fees.
19. The parties hereto have entered into this Agreement solely for their
own benefit and in their own interest. Neither party intends to benefit any
other person or entity. There are no intended third-party beneficiaries of this
Agreement, and any and all benefit that may devolve upon any person or entity
other than the parties hereto is purely incidental.
20. This Agreement shall be binding upon and inure to the benefit of the
parties and their respective successors, heirs (in the case of Employee) and
assigns. No rights or obligations of the Company under this Agreement may be
assigned or transferred by the Company except that such rights or obligations
shall be assigned or transferred pursuant to a merger or consolidation in which
the Company is not the continuing entity, or pursuant to the sale or liquidation
of all or substantially all of the assets of the Company, and such assignee or
transferee shall either assume the liabilities, obligations and duties of the
Company generally, or shall expressly assume the liabilities, obligations and
duties contained in this Agreement, either contractually or as a matter of law.
No rights or obligations of the Employee under this Agreement may be assigned or
transferred by the Employee other than his rights to compensation and benefits,
which may be transferred only by will or the laws of descent and distribution.
21. All notices, requests, demands, claims, and other communications
hereunder will be in writing. Any notice, request, demand, claim, or other
communication hereunder shall be deemed duly given (i) when delivered personally
to the recipient, or (ii) two business days after being sent to the recipient by
reputable overnight courier service (charges prepaid):
If to Employee:
A. Xxxxxxx Xxxxxxxx, Xx.
0000 Xxxxx Xxxx Xxx
Xxxx Xxxxx, XX 00000
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with a copy (which shall not constitute notice) to:
Xxxxx & Xxxxxxx L.L.P.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx, Esq.
If to the Company:
Xxxxxxxxx International, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxx Xxxxx, XX 00000
Attention: President
Either party may change the address to which notices, requests, demands, claims,
and other communications hereunder are to be delivered by giving the other party
notice in the manner herein set forth.
22. No amendment of any provision of this Agreement shall be valid unless
the same shall be in writing and signed by Employee and the Company. No waiver
by either party of any provision of this Agreement or any default,
misrepresentation, or breach of warranty or covenant hereunder, whether
intentional or not, shall be valid unless the same shall be in writing and
signed by the party making such waiver nor shall such waiver be deemed to extend
to any prior or subsequent default, misrepresentation, or breach of warranty or
covenant hereunder or affect in any way any rights arising by virtue of any
prior or subsequent such default, misrepresentation, or breach of warranty or
covenant.
23. This Agreement may be executed in two identical counterparts, each of
which, when taken together shall constitute one single instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed as set forth below.
Dated: November 26, 2002 ______________________________
A. Xxxxxxx Xxxxxxxx, Xx.
XXXXXXXXX INTERNATIONAL, INC.
Dated: November 26, 2002 By:___________________________
Name:
Title:
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ATTACHMENT
1. SALARY CONTINUATION: Continuing payments, at the rate of $492,044 per annum,
through July 15, 2004, payable monthly or in such more
frequent installments as the Company customarily pays its
other executives.
2. BONUS CONTINUATION: One payment of $150,491 on or before October 31, 2003. A
second payment of $119,138 on or before August 31, 2004.
3. RETIREMENT BENEFIT: Pursuant to Section 5 of the Top Hat Agreement, the Company
elects to accelerate the retirement benefits under Section
4 of such Top Hat Agreement. Accordingly, the Company
shall pay a lump sum payment on or before December 16,
2002, equal to the present value of one hundred and twenty
(120) monthly payments of $11,085.25 commencing on such
date, discounted at an interest rate equal to the thirty
(30) year U.S. Treasury Xxxx rate on such date.
4. BENEFIT CONTINUATION: Continuing participation in, or receipt of benefits under,
any health insurance plan, employee benefit plan or other
arrangement made available by the Company or its
subsidiaries on the date hereof to its executives and key
management employees, through July 15, 2004, subject to and
on a basis consistent with the terms, conditions and
overall administration of such plans and arrangements.
Employee's rights under the Consolidated Omnibus Budget
Reconciliation Act of 1986 and the regulations promulgated
thereunder shall commence from and after July 16, 2004 to
the fullest extent provided therein. In addition, Employee
may continue to use a Company car, and the Company shall
continue to maintain insurance on such car, through July
15, 2004. Employee's expense account will be cancelled;
however, the Company shall reimburse Employee for his
reasonable out-of-pocket expenses incurred in the discharge
of the services and provision of the cooperation and
assistance described in paragraph 13.
5. WITHHOLDING: All Benefits paid hereunder shall be subject to withholding
to the extent required under applicable law.
6. SECTION 280G REDUCTION: The Benefits payable to Employee hereunder shall be reduced
to the extent required so that such Benefits shall not be
an "excess parachute payment" within the meaning of Section
280G(b) of the Internal Revenue Code of 1986, as amended,
and the Regulations thereunder. The determination of any
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reduction shall be made by the independent certified public
accountants of the Company on or before December 16, 2002
and such determination shall be final. Any reduction
pursuant to this paragraph 6 shall be first applied against
amounts described in paragraph 3 above (Retirement Benefit)
and, if necessary, thereafter against amounts described in
paragraph 2 above (Bonus Continuation).
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