Exhibit 10.50
SEVERANCE AND RELEASE AGREEMENT
THIS SEVERANCE AND RELEASE AGREEMENT ("AGREEMENT") is entered effective
December 31, 2001, (the "TERMINATION DATE") by and between XXXXXX TECHNOLOGIES,
INC., a Delaware corporation located at 0000 Xxxxx Xxxxx Xxxx, Xxxx Xxxxx,
Xxxxxxx 00000 ("COMPANY") and XXXXX X. XXXXX ("EMPLOYEE") relating to Employee's
termination of employment and separation from with Company. The term "Company"
includes any or all current or former affiliated corporations, parent
corporations, partnerships, divisions, and subsidiaries, and the officers,
directors, shareholders, employees, agents, attorneys, successors and assigns of
the Employer.
SECTION 1. SEPARATION FROM EMPLOYMENT AND SEVERANCE PAYMENT.
A. Employee's termination as an employee of the Company will
begin and be effective of the Termination Date. Employee will
be paid his remaining standard gross wages less applicable
taxes and withholdings in accordance with standard payroll
practices through the Termination Date plus all applicable
severance benefits as provided for in the Employee's
Employment Agreement dated January 31, 1998, as amended (the
"Employment Agreement"). Employee will also be reimbursed for
all legitimate business expenses incurred on Company's behalf
through the Termination Date which have been approved by the
Company and otherwise in accordance with the Company's written
policies. Employee will also be paid any accrued personal and
vacation time as of the Termination Date.
B. Employee acknowledges that the monies described in this
Agreement and the Employment Agreement represent all monies to
which he may now or may hereafter be entitled from the
Company. This includes but is not limited to back-pay,
severance pay, wages, overtime pay, commissions, bonuses,
personal time pay, vacation pay, relocation fees, benefits,
attorneys' fees and damages of any nature whatsoever.
Severance benefits provided to the Employee under the
Employment Agreement shall include payments made to satisfy
requirements under the Warn Act, provided, no services are
required by the Employee during the Warn Act notice period.
SECTION 2. COVENANTS OF EMPLOYEE.
A. Employee (on his own behalf and on behalf of his heirs,
personal representatives, and any other person who may be
entitled to make a claim on his behalf or through him) freely
releases and discharges Company, its directors, officers,
employees, subsidiaries, predecessors, successors, and assigns
from any and all claims, charges, actions, and causes of
action of any kind or nature, that Employee once had or now
has or that arise on or before the effective date of this
Agreement, including any and all claims arising out of or in
any way related to Employee's employment, proposed relocation,
other agreements by and between the Company and Employee
referenced herein, or separation of employment with Company,
whether such claims are now known or unknown to Employee.
Employee agrees not to bring any charges, claims, or actions
against Company in the future, except claims that Company has
breached its obligations set forth in this Agreement or its
obligations to provide severance benefits in the Employment
Agreement.
B. The rights and claims which Employee waives and releases in
this Agreement include, to every extent allowed by law, those
arising under the Employee
Retirement Income Security Act of 1974, the Civil Rights Acts
of 1866, 1871, 1964 and 1991, the Rehabilitation Act of 1973,
the Equal Pay Act of 1963, the Vietnam Era Veteran's
Readjustment Assistance Act of 1974, the Occupational Safety
and Health Act, the Immigration reform and Control Act of
1986, the Americans with Disabilities Act, the Age
Discrimination in Employment Act of 1967, the Older Worker's
Benefit Protection Act, the Florida Civil Rights Act, and the
Worker Adjustment and Retraining Act of 1988. This is not a
complete list, and Employee waives and releases all similar
rights and claims under all other federal, state and local
discrimination provisions and all other statutory and common
law causes of action, to the extent allowed by law, relating
in any way to Employee's employment or separation from
employment with Company.
In addition, Employee knowingly waives all claims or rights
pursuant to the Age Discrimination in Employment Act (ADEA) in
exchange for the monies payable pursuant to this Agreement.
Employee acknowledges that he has the right to consult with an
attorney prior to agreeing to this portion of the Agreement.
Employee has twenty one days to consider this portion of the
Agreement and has seven days after executing this Agreement to
revoke this specific waiver of the ADEA claims.
C. Employee hereby agrees to remise, release, acquit, satisfy,
and forever discharge Company, of and from all, and all manner
of action and actions, cause and causes of action, suits,
debts, dues, sums of money, accounts, reckonings, bonds,
bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages,
judgments, executions, claims and demands whatsoever, in law
or in equity, which Employee ever had, now has, or which any
personal representative, successor, heir or assign of
Employee, hereafter can, shall or may have, against Company,
for, upon or by reason of any matter, cause or thing
whatsoever, from the beginning of the world to the day of this
Agreement except claims that Company has breached its
obligations set forth in this Agreement or its obligations to
provide severance benefits pursuant to the Employment
Agreement. Employee represents that he does not currently have
on file, and has not made in any forum, any complaints,
charges, or claims (whether civil, administrative, or
criminal) against Company.
D. Employee agrees that all severance benefits to be paid to
Employee by Company pursuant to the Employment Agreement
represents benefits to which Employee would not be entitled
absent this Agreement. The Company agrees that all covenants
provide to the Company pursuant to the Employment Agreement
represent material benefits to the Company which the Company
would not be entitled to absent this Agreement.
E. Employee agrees to the following Non-Solicitation/Competition
and Confidentiality Provisions:
(a) During the Severance Period, as defined in the
Employment Agreement, Employee shall not directly or
indirectly, as owner, officer, director, employee or
agent conduct or be related to any business in direct
competition with any business of Company.
(b) In addition to, and not in limitation of the other
provisions hereof or of any other agreement between
Employee and Company, Employee shall not at any time
in any manner other than in the ordinary course of
good faith competition only as permitted herein
interfere with, disturb, disrupt, decrease or
otherwise jeopardize
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the business of Company or do or permit to be done
anything which may tend to take away or diminish the
trade, business or good will of the Company or give
to any person the benefit or advantage of the
Company's methods of operation, advertising,
publicity, training, business customers or accounts,
or any other information relating to or useful to
Company's business. This provision shall not apply to
information already known or readily available to the
public.
(c) Except as provided for herein, the existence of any
claim or cause of action by Employee against Company
predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by Company of
these covenants.
(d) Employee acknowledges and confirms that the
restrictions contained herein are fair and reasonable
and not the result of overreaching, duress, or
coercion of any kind.
F. Employee agrees to return to Employer in Boca Raton, Florida,
on the Termination Date or within 14 business days, all of
Employer's property, including computer and office equipment,
office keys, phone card, security access card, American
Express or other Employer issued or sponsored credit card,
parking pass, supplies, customer and work files and other
related materials.
G. Employee agrees not to disclose the contents of this Agreement
to anyone except Employee's immediate family or attorneys, if
any, provided they agree to this confidentiality clause.
H. Employee agrees that Employee will be responsible for
Employee's own attorneys' fees incurred in connection with the
negotiation, preparation and execution of this Agreement and
that Employee unconditionally releases and discharges Employer
from any claim for such attorneys' fees incurred by Employee
or on Employee's behalf.
I. The parties agree and acknowledge to each other that this
Agreement does not constitute an admission by either party of
any violation of any federal, state, or local statue or
regulation, or any violation of any of Employee's rights or of
any duty owed by either party to each other.
J. Employee warrants that he has surrendered to the Company, in,
all material records (and copies thereof) pertaining to
Company's business operations and related to any work
performed for Company, all material Company property, and any
and all third party property, including all confidential
and/or proprietary information, drawings, computer programs or
copies thereof, documentation, notebooks and notes, reports
and any other materials on electronic or printed media.
Included are any documents or media containing the names,
addresses, and other information with regard to customers or
potential customers of the Company, business alliance partners
or Xxxxxx Solutions Partners which have been served by the
Employee.
K. Employee and Company agree that each will refrain from making
any written or oral statement or taking any action, directly
or through others, which either knows or reasonably should
know to be disparaging or negative concerning the each other
or their respective officers, directors, employees, attorneys
or agents.
L. It is recognized and acknowledged that a breach by the
Employee or the Company of
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any of the covenants in Section 2 of this Agreement will cause
irreparable harm and damage to the other party, the monetary
amount of which may be virtually impossible to ascertain. As a
result, each recognizes and acknowledges that the other party
shall be entitled to, in addition to any other remedies
available to the other party, an injunction from any court of
competent jurisdiction enjoining and restraining any violation
of any or all of the covenants contained in Section 2 of this
Agreement by Employee or Company and such right to an
injunction shall be cumulative and in addition to whatever
other remedies the Company or the Employee (as the case may
be) may possess.
M. Employee agrees and acknowledges that Employee will be
responsible for payment of any outstanding balance on
Employee's company-issued or company-guaranteed American
Express account related to personal expenses of the Employee
or Company expenses for which Employee has been reimbursed
("EMPLOYEE RESPONSIBLE Expenses"). Employee agrees that
Company will be entitled to deduct from any payments due
Employee, including Employee's severance payments as provided
for in his Employment Agreement, all Employee Responsible
Expenses.
SECTION 3. INFORMED, VOLUNTARY SIGNATURE. Company has informed Employee that
they may consult counsel before executing this Agreement. Employee agrees that
he has had a full and fair opportunity to review this Agreement with counsel and
signs it knowingly, voluntarily, and without duress or coercion. Further, in
executing this Agreement, Employee agrees that he has not relied on any
representation or statement not set forth in this Agreement.
SECTION 4. NO ADMISSION. The parties agree that this Agreement does not
constitute any admission by Employee or by Company or any of its officers,
directors, employees, agents, and representatives, and their successors in
interest of any (i) violation of any statute, law, regulation, order, or other
applicable authority, (ii) breach of contract, actual or implied, or (iii)
commission of any tort.
SECTION 5. MISCELLANEOUS.
A. Any material breach of this Agreement by Employee will result
in Company not being required to comply with its obligations
under this Agreement. Any material breach by the Company of
this Agreement or its failure to provide timely severance
benefits pursuant to the Employment Agreement will result in
the Employee not being required to comply with his obligations
and covenants under any agreement between him and the Company
including this Agreement and the Employment Agreement,
including all provisions which provide for survival subsequent
to termination.
B. This Agreement shall be interpreted and enforced in accordance
with the laws of the State of Florida. Each of the parties
submits to the jurisdiction of any state or federal court
sitting in Palm Beach County, Florida, in any action or
proceeding arising out of or relating to this Agreement and
agrees that all claims in respect of the action or proceeding
may be heard and determined by any such court. Each party also
agrees not to bring any action or proceeding arising out of or
relating to this Agreement in any other court. In addition,
the parties agree to waive any rights to a jury trial should
any dispute arise under this Agreement or related in any way
to Employee's employment with Company.
C. This Agreement represents the sole and entire agreement
between the parties and
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supersedes any and all prior agreements, negotiations, and
discussions between the parties or their respective counsel
with respect to the subject matters covered herein.
D. If either party initiates proceedings for the other's breach
of this Agreement, the prevailing party shall recover
attorneys' fees and costs, including such fees and costs on
any enforcement or appeal proceedings.
E. If one or more paragraphs of this Agreement are ruled invalid
or unenforceable, such invalidity or unenforceability shall
not affect any other provision of the Agreement, which shall
remain in full force and effect.
F. This Agreement may be modified only by a writing signed by
both parties.
G. Both parties agree that, unless required by law or by a court
of competent jurisdiction, this Agreement shall remain
confidential and will not be used for any purpose other than
enforcing its specific terms in any proceeding between the
parties. If this document must be filed in any court
proceeding, the person seeking to file it will do so only
under seal, unless expressly prohibited by the court.
H. This Agreement may be executed in two counterparts, each of
which shall constitute an original, but all of which together
shall constitute one and the same document.
IN WITNESS WHEREOF, Employee and Company have agreed upon and executed this
Agreement as of the date first set forth above.
EMPLOYEE: XXXXXX TECHNOLOGIES, INC.:
/s/ Xxxxx X. Xxxxx January 9, 2002 By: /s/ Xxxxx Xxxxxx
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Signature of Employee Date Title: Chief Executive Officer
Date: January 9, 2002
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