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Exhibit Number 10.28
EMPLOYMENT SEPARATION AGREEMENT
THIS EMPLOYMENT SEPARATION AGREEMENT (this "Agreement") is made and
entered into as of the 22nd day of September 2000, by and between XXXXX
ENTERPRISES, INCORPORATED, a Florida corporation ("Company"), and XXXXX X.
XXXXXXX, an individual ("Employee").
RECITALS:
A. Pursuant to that certain Employment Agreement, dated March 6, 2000,
by and between Company and Employee (the "Employment Agreement"), Employee is
currently employed by Company as an executive officer of Company.
B. Employee wishes to terminate his employment with Company.
C. Employee and Company have reached agreement on the terms of
Employee's departure, and both parties view their separation as amicable.
NOW, THEREFORE, in consideration of the premises and covenants
contained in this Agreement, the parties hereto, intending to be legally bound,
agree as follows:
1. RECITALS. The above recitals are true and correct and are made a
part hereof.
2. TERMINATION OF EMPLOYMENT AGREEMENT. Company and Employee hereby
agree that, except as specifically provided in this Agreement, the Employment
Agreement is terminated effective as of the date hereof, and except as set forth
in Section 6 below and except as otherwise specifically provided in this
Agreement, neither Company nor Employee shall have any further rights,
obligations, or duties under the Employment Agreement as of the date hereof.
3. SEPARATION PAYMENTS. In consideration of Employee's agreement to the
terms of this Agreement, Company will pay Employee the following amounts (the
"Separation Payments"):
a. For the period beginning on the date hereof through March 5, 2003
(the "Post-Employment Period"), Company will continue to pay to Employee an
amount equal to the Employee's base salary as in effect under the Employment
Agreement as of the date hereof. Such base salary shall continue to be paid in
accordance with the prevailing payroll schedule for Company executives.
b. On the date hereof, Company shall pay to Employee, in a lump sum,
(i) Fifty Thousand and 00/100 Dollars ($50,000) in lieu of all bonuses that
Employee would otherwise be entitled to under the Employment Agreement, and (ii)
an amount equal to the dollar value of all of Employee's accrued but unused
vacation as of the date hereof.
c. Company shall pay to Employee an amount equal to the cash
surrender value as of the date hereof of the split-dollar life insurance policy
maintained by Company on the life of Employee. This amount shall be paid to
Employee within three (3) business days of the date on which Company receives
payment of such cash surrender value from the carrier providing such policy.
4. PAYMENT OF DEFERRED COMPENSATION PLAN ACCOUNT. Company will pay to
Employee an amount equal to Employee's "Deferred Compensation Account" under the
Sykes
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Enterprises, Incorporated Executive Deferred Compensation Plan (the "Deferred
Compensation Plan"). This payment will be made to Employee within thirty (30)
calendar days after the first Valuation Date (as defined in the Deferred
Compensation Plan) following the date hereof. Employee acknowledges and agrees
that Employee will not be entitled to any matching contributions under the
Deferred Compensation Plan.
5. CONTINUATION OF BENEFITS. Beginning on the date hereof and
continuing hereafter during the Post-Employment Period, Company shall continue
to provide Employee with the same (or substantially similar) health insurance
coverage, dental insurance coverage, prescription drug plan, and life insurance
(excluding "split-dollar" life insurance coverage) that is being provided to
Employee by Company as of the date of this Agreement; provided, however, that in
the event that Employee obtains full-time employment prior to the expiration of
the Post-Employment Period, then Company's obligation to provide such benefits
shall terminate upon the first day on which Employee would be eligible to
receive benefits from his new employer.
6. SURVIVAL OF CERTAIN PROVISIONS OF EMPLOYMENT AGREEMENT.
Notwithstanding anything to the contrary set forth in this Agreement, Section 4
and Section 5 of the Employment Agreement shall continue to remain in full force
and effect in accordance with the terms thereof, and Employee shall continue to
be bound by the terms thereof (as well as by any other terms of the Employment
Agreement relating to the enforceability and construction of said Sections 4 and
5), subject to the following:
a. The obligations of Employee under Sections 4 and 5 of the
Employment Agreement shall continue at all times hereafter until the expiration
of the Post-Employment Period;
b. Notwithstanding anything set forth in the Employment Agreement,
Company shall not be obligated to pay any Non-Compete Payment (as defined in the
Employment Agreement) or any other payment as a condition to Employee's
continuing obligation to comply with Section 5 of the Employment Agreement.
c. For purposes of Section 5(c)(1) of the Employment Agreement, the
term "business of the Company" shall be limited to the following services:
third-party technical product support and customer service, corporate help desk
services, product distribution and fulfillment, computer diagnostic software, IT
staffing, and consulting in the areas of e-business strategy, eCrm assessment
and planning, and foreign language translation and localization. In the event
that Employee is uncertain as to whether a particular business would fall within
the definition of "business of the Company," then Employee shall consult with
Company and seek the Company's written consent before engaging in, or providing
any services to, any such business during the Post-Employment Period, and
Company hereby agrees that such consent will not be unreasonably withheld.
d. In addition to the provisions of Section 5 of the Employment
Agreement, Employee hereby agrees that he will not, at any time during the
Post-Employment Period, provide or solicit the opportunity to provide any
services to any persons or entities who, at any time prior to the expiration of
the Post-Employment Period, are or were customers or clients of Company or its
subsidiaries.
7. WAIVER AND RELEASE. In consideration of the obligations and duties
of Company set forth herein, Employee agrees as follows:
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a. Employee hereby knowingly and voluntarily waives, releases and
forever discharges Company from any and all claims, demands, damages, lawsuits,
obligations, promises, and causes of action, both known and unknown, whether now
existing or arising in the future, at law or in equity, relating to or arising
out of Employee's employment with Company, the Employment Agreement, the
Deferred Compensation Plan, compensation by Company, or separation of employment
from Company.
b. Employee shall not disclose, either directly or indirectly, any
information whatsoever regarding any of the terms or the existence of this
Agreement to any person or organization, including but not limited to members of
the press and media, present and former employees of Company, and persons or
companies who do business with Company. The only exceptions to Employee's
promise of confidentiality herein is that Employee may reveal such terms of this
Agreement (i) as is necessary to comply with a request made by the Internal
Revenue Service; (ii) as otherwise compelled by a court or agency of competent
jurisdiction; (iii) as required by law; (iv) as is necessary to comply with
requests from Employee's accountants, attorneys, financial advisors, or other
professional advisors for legitimate business purposes or personal financial
planning, or (v) to his immediately family members solely for personal planning
purposes (provided that such immediate family members undertake to maintain the
complete confidentiality of this Agreement).
8. EMPLOYMENT RECOMMENDATIONS; NON-DISPARAGEMENT. Company hereby
agrees that, in the event that a future prospective employer of Employee seeks
information from Company regarding the competence, experience, or abilities of
Employee, Company shall follow its standard human resource guidelines, policies,
and practices with respect to such inquiry. In addition, the parties shall each
refrain from making any written or oral statement or taking any action, directly
or indirectly, which the parties know or reasonably should know to be
disparaging or negative concerning Company or Employee, except as required by
law. The parties hereto shall also refrain from suggesting to anyone that any
written or oral statements be made which the parties know or reasonably should
know to be disparaging or negative concerning Company or Employee, or from
urging or influencing any person to make any such statement. This provision
shall include, but not be limited to, the requirement that the parties refrain
from expressing any disparaging or negative opinions concerning Company or
Employee, Employee's resignation from Company, any of Company's officers,
directors, or employees, or other matters relative to Company's reputation as an
employer or any other matters relative to Employee's reputation as an employee
or executive. Company's and Employee's promises in this subsection, however,
shall not apply to any judicial or administrative proceeding in which Employee
or Company is a party or in which Employee or Company has been subpoenaed to
testify under oath by a government agency or by any third party.
9. RESIGNATION FROM OFFICES AND DIRECTORSHIPS. Employee hereby
resigns, effective as of the date hereof, from all offices, directorships, and
trusteeships which Employee holds with Company and any subsidiary or affiliate
of Company.
10. SECURITIES MATTERS. For a period of 90 days following the date
hereof, Employee shall be subject to the conditions, restrictions, and
requirements applicable to executive officers of Company with respect to any
purchase, sale, transfer, disposition, or other transaction involving the common
stock of Company and shall not engage in any such transaction in violation of
such conditions, restrictions, or requirements.
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11. CONSULTING ENGAGEMENT. Company hereby engages Employee, and
Employee accepts such engagement, to provide consulting services to Company on
an as-needed and as-requested basis with respect to Company financial,
operational and other matters (the "Consulting Services"). For purposes of this
consulting engagement and this Section 11, Employee shall be referred to as
"Consultant". Consultant acknowledges that the consulting engagement set forth
in this Section 11 is on an at-will basis and that Company may terminate such
consulting engagement at any time (and for any reason) by providing at least ten
(10) days prior written notice of termination to Consultant. The parties also
agree that, for purposes of this consulting engagement, Consultant shall be
deemed to be an independent contractor and shall not, and shall have no
authority to, enter into negotiations for or enter into any contracts or
commitments in the name of or on behalf of Company, and nothing set forth in
this Section 11 creates a partnership or joint venture between Company and
Consultant. In addition, Consultant acknowledges that he will receive IRS Form
1099s with respect to consulting fees paid to Consultant pursuant hereto, and
Consultant will be responsible for the payment of all taxes on such consulting
fees. In addition, the consulting engagement set forth in this Section 11 shall
be subject to the following terms and conditions:
a. In consideration of the provision of Consulting Services by
Consultant pursuant hereto, Company shall pay a consulting fee of $1,500 per
Work Day. For purposes hereof, a "Work Day" is any day on which Consultant
provides at least four (4) hours of Consulting Services to Company. For purposes
hereof, "Consulting Services" shall include out-of-town travel time expended by
Consultant in the course of his engagement hereunder. Consultant shall invoice
Company on a monthly basis with respect to consulting fees due hereunder, and
such invoices shall contain appropriate details regarding the Consulting
Services provided hereunder.
b. In addition to the consulting fees provided herein, Consultant
will be entitled to reimbursement for all reasonable travel and other expenses
incurred by Consultant in the course of providing Consulting Services, provided
that such reimbursement shall be subject to the Company's general expense
reimbursement policies and procedures. In addition, from time to time as
circumstances reasonably require, Company will provide Consultant with
reasonably suitable office space and support services for purposes of the
provision of Consulting Services hereunder, including without limitation
accounting, tax, legal, and administrative support services.
12. LITIGATION COOPERATION. Beginning on the date of this Agreement and
continuing at all times hereafter, Employee and Company shall, without any
additional compensation, provide each other with full cooperation and reasonable
assistance in connection with Company's defense of (i) any litigation against
Company, its officers, its subsidiaries, or its affiliates pending as of the
date hereof or (ii) any other litigation against Company, its officers, its
subsidiaries, or its affiliates arising out of or relating to any circumstance,
fact, event, or omission alleged to occur while Employee was employed by
Company. Such cooperation and assistance shall include, but not be limited to,
access for research, being available for consultation, for deposition and trial
testimony, and for availability and execution of discovery-related documents
such as interrogatories, affidavits, requests for production, requests for
admissions, and responses to each, as deemed necessary. Employee and Company
further agree to provide their good will and good faith in providing honest and
forthright cooperation in all other aspects of their defense of any such
litigation. Company hereby agrees that nothing set forth in this Agreement shall
be construed as limiting, adversely affecting, or altering Employee's
indemnification rights under the Company's Articles of Incorporation and/or
bylaws and under the Florida Business Corporation Act.
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13. MISCELLANEOUS.
a. In the event any provision of this Agreement is found to be
unenforceable, void, invalid or unreasonable in scope, such provision shall be
modified to the extent necessary to make it enforceable, and as so modified,
this Agreement shall remain in full force and effect.
b. The paragraph headings in this Agreement are for convenience
only and do not form any part of or affect the interpretation of this Agreement.
c. This Agreement may be executed in counterparts, each of which
shall be deemed an original of this Agreement and all of which, when taken
together, shall be deemed to constitute one and the same Agreement.
d. The waiver by any party of a breach of any condition of this
Agreement by the other party shall not be construed as a waiver of any
subsequent breach. No waiver of any right hereunder shall be effective unless in
writing and signed by the party against whom the waiver is sought to be
enforced.
e. The rights and obligations of the parties under this Agreement
shall inure to the benefit of, and shall be binding upon, their respective
heirs, executors, administrators, successors, assigns, subsidiaries, affiliates,
directors, officers, employees, representatives and agents, as applicable.
f. This Agreement constitutes the entire agreement of the parties
with respect to the subject matter hereof and supersedes any previous employment
agreements or contracts, whether written or oral, between Company and Employee.
g. This Agreement shall be construed under, and governed by, the
laws of the State of Florida.
h. Employee and Company acknowledge that each has had the
opportunity to read, study, consider and deliberate upon this Agreement, and to
consult with legal counsel, and both parties fully understand and are in
complete agreement with all of the terms of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
COMPANY: EMPLOYEE:
XXXXX ENTERPRISES, INCORPORATED XXXXX X. XXXXXXX
By:_____________________________________ ______________________________
Xxxxx X. Xxxxxx, Xxxxx X. Xxxxxxx, individually
President and Chief Executive Officer
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