SEPARATION AGREEMENT AND FULL AND FINAL RELEASE OF CLAIMS
Exhibit 10.1
SEPARATION AGREEMENT AND
FULL AND FINAL RELEASE OF CLAIMS
FULL AND FINAL RELEASE OF CLAIMS
This Separation Agreement and Full and Final Release of Claims (“Agreement”) is made and
entered into between Xxx X. Xxxx (“Xx. Xxxx” or “Employee”) and Gevity HR, Inc. (“Gevity” or
“Employer”).
1. SEVERANCE. Xx. Xxxx and Gevity have mutually agreed to end their employment
relationship, effective October 13, 2006 (“Severance Date”). In resolution of their employment
relationship, Xx. Xxxx and Gevity have agreed to the terms below.
2. CONSIDERATION. In consideration of his decision to enter into this Agreement,
Gevity agrees to provide Xx. Xxxx with severance totaling $520,000 payable in equal payments on
Gevity’s regular payroll periods, beginning on the first payroll period following the date on which
the Agreement is fully executed, and continuing until the last payroll period in December, 2006.
Notwithstanding anything in this Agreement to the contrary, Gevity may accelerate the timing of any
payments to Xx. Xxxx under this Agreement in the event Gevity determines in its sole discretion
that such acceleration could minimize or eliminate the risk that any payment to Xx. Xxxx hereunder
would be deemed to violate Section 409A of the Internal Revenue Code.
Tax and all other applicable withholdings and deductions will be applied to the payments made
under this Paragraph. Furthermore, Gevity’s obligations under Paragraph 2 are conditioned upon Xx.
Xxxx’x execution of this Agreement.
3. NO OBLIGATION. Xx. Xxxx acknowledges and agrees that the monies and benefits set
forth in Paragraph 2 represent good, valuable and sufficient consideration for the mutual promises
and duties set forth in this Agreement.
4. FULL AND FINAL RELEASE. In consideration for the payments being provided to him
above, Xx. Xxxx, for himself, attorneys, heirs, executors, administrators, successors and assigns,
fully, finally and forever releases and discharges Gevity, all parent, subsidiary and/or affiliated
companies, as well as its and their successors, assigns, officers, directors, agents,
representatives, attorneys, stockholders, insurers, employees and employee benefit plans or
programs (and the trustees, administrators, fiduciaries, and insurers of such plans or programs),
and any other person acting by, through, under, or in concert with any of the persons or entities
listed in this section (all of whom are referred to throughout this Agreement as “Gevity” or
“Employer”), of and from all known and unknown claims, demands, actions, causes of action, suits,
damages, losses, and expenses, of any and every nature whatsoever, as a result of any alleged acts
or omissions by Gevity occurring up through and including the date on which Xx. Xxxx executes this
Agreement. By way of illustration only, this full and final waiver and release includes any and all
claims of alleged employment discrimination, harassment and/or retaliation under the Age
Discrimination in Employment Act, Title VII of the Civil Rights
Act of 1964, the Americans with
Disabilities Act, the Florida Civil Rights Act, and any and all other federal, state or local
antidiscrimination statutes, rules, ordinances, or regulations; any and all claims for alleged
wrongful discharge, retaliation, negligent or intentional infliction of emotional distress, breach
of contract, and fraud; any and all claims for compensation, bonuses, commissions, lost wages or
unused accrued vacation or sick pay; any and all claims for severance or similar benefits or to
post-employment health or group insurance benefits; any and all claims for attorneys’ fees, costs
or indemnification; and any and all other claims resulting from any alleged unlawful behavior or
conduct by Gevity, the existence of which is specifically denied by Gevity.
Nothing in this Agreement is intended to waive Xx. Xxxx’x right to enforce this Agreement, or
Xx. Xxxx’x entitlement to vested benefits under any 401(k) plan or other benefit plans provided by
Gevity. Finally, the above release does not waive claims that Xx. Xxxx could make, if available,
for unemployment or workers’ compensation, or any other claims that cannot by statute or otherwise
be released by private agreement.
5. NO CLAIMS. Xx. Xxxx represents that neither he nor anyone on his behalf has filed,
nor assigned to others the right to file, nor are there currently pending, any complaints, charges
or lawsuits against Gevity with any governmental agency, any court or with or in any other forum,
and that neither Xx. Xxxx nor anyone on his behalf will file, assign to others the right to file,
or make any further claims against Gevity at any time for any alleged acts or omissions covered by
the release in Paragraph 4 above. Xx. Xxxx agrees that in the event he (or anyone on his behalf)
asserts any claim or files any complaint, charge or lawsuit against Gevity that is covered by the
release in Paragraph 4 above, Xx. Xxxx shall pay all of the attorneys’ fees, expenses and costs
incurred by Gevity in responding to such claim, complaint or action.
6. CERTAIN STATEMENTS; REFERENCES. Xx. Xxxx agrees that he has not (including during
the time period while this Agreement was under consideration by Xx. Xxxx) and will not voluntarily
make statements to Gevity’s clients, employees, vendors, shareholders, investors or to any other
member of the public that in any way could be deemed to criticize, denigrate or disparage Gevity,
Gevity’s products or services, Gevity’s business, or Gevity’s agents, representatives or employees.
Gevity in turn agrees that it has not and will not make statements to Gevity’s clients, employees,
vendors or to any other member of the public that in any way could be deemed to criticize,
denigrate or disparage Xx. Xxxx, unless such disclosure or statement by Gevity is required by law.
Furthermore, with respect to reference requests, Gevity agrees to provide only dates of employment,
base salary at the time of Xx. Xxxx’x separation and position(s) held. Reference requests will
initially be directed only to Xxxxx Xxxxxxxxx, Vice President and General Counsel, or if he no
longer occupies that position, the employee occupying the position of Vice President of Human
Resources, who may forward such requests to the appropriate employee, including Xxxx Xxxx, Chief
Executive Officer, who shall communicate substantially the substance of the public announcement
made concerning Xx. Xxxx’x departure from Gevity.
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7. NON-ADMISSION OF LIABILITY OR WRONGFUL CONDUCT. Gevity and Xx. Xxxx agree that the
payments made and other consideration received pursuant to this Agreement shall not be construed as
an admission by Gevity or Xx. Xxxx of any legal liability or acts of wrongdoing or discrimination;
nor shall it be used as evidence or an admission by Gevity or Xx. Xxxx of such liability,
wrongdoing, or discrimination.
8. COMPLETE TERMINATION OF EMPLOYMENT RELATIONSHIP AND RETURN OF PROPERTY. Except as
set forth above, Gevity and Xx. Xxxx agree as a matter of intent that as of the Severance Date,
this Agreement terminates all aspects of the employment relationship between them. As part of an
amicable resolution to the employment relationship between the parties, Xx. Xxxx acknowledges that
he does not and will not seek reinstatement, future employment, or return to active employee status
with Gevity. Xx. Xxxx further acknowledges that Gevity shall not be under any obligation whatsoever
to consider him for reinstatement, employment, reemployment or other similar status at any time.
Xx. Xxxx acknowledges, understands, and agrees that by October 13, 2006, he will have returned
all files, memoranda, records, credit cards, manuals, computer equipment (except that Xx. Xxxx
shall be entitled to retain his laptop computer and will make arrangements with Gevity’s IT
Department to ensure that all of Gevity’s confidential, trade secret and other proprietary
information is or has been removed), computer software, pagers, cellular phones, credit cards,
facsimile machines, and any other equipment or documents (including all copies and excerpts), and
all other physical or electronic property of similar type that he received from Gevity and/or that
he used in the course of his employment with Gevity.
9. CONFIDENTIALITY. The nature and terms of, and the circumstances surrounding the
execution of this Agreement are strictly confidential and have not been and shall not be disclosed
by Xx. Xxxx at any time to any person except his lawyer, his accountant or his immediate family
without the prior written consent of an officer of Gevity, except as necessary in any legal
proceedings directly related to the provisions and terms of this Agreement, to prepare and file
income tax forms, pursuant to court order after reasonable notice to Gevity, or in response to a
disclosure made by Gevity.
10. GOVERNING LAW. This Agreement shall be interpreted under the laws of the State of
Florida.
11. SEVERABILITY. The provisions of this Agreement are severable, and if any part of
this Agreement is found by a court of competent jurisdiction to be unenforceable, the parties agree
to seek a determination by the court as to the rights of the parties, including whether Xx. Xxxx is
entitled under those circumstances and the relevant law to retain the consideration paid to him
under the Agreement. If a court of competent jurisdiction renders a final determination that any
release, waiver or
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agreement set forth herein is invalid, illegal or unenforceable, in whole or in
part, Gevity shall have the right to elect to consider its obligations under this Agreement to be
nullified, and in such case, any payments or benefits that had been afforded under this Agreement
shall be returned immediately to Gevity.
12. DISCLOSURE OF COMPANY INFORMATION. Except as set forth in Schedule A, Xx. Xxxx
affirmatively acknowledges that he has not (i) had any conversations; or (ii) otherwise shared in
any manner any information with any person or entity, in each case that violated any Gevity
policies or procedures, or that violated the terms of Xx. Xxxx’x Employment Agreement, dated
December 15, 2005. Xx. Xxxx does not concede that any of the listed conversations violated any
Gevity policies or procedures, or any of his obligations as an officer of Gevity, in any respect.
Xx. Xxxx further agrees to abide fully with his post-separation contractual obligations set forth
in the Employment Agreement, including but not limited to his obligations to maintain the
confidentiality of Gevity’s Confidential Information, as defined in the Employment Agreement. The
noncompetition restriction of the Employment Agreement, paragraph 6(b), is waived. A copy of the
Employment Agreement is attached hereto and incorporated herein as Exhibit 1.
13. SOLE AND ENTIRE AGREEMENT. This Agreement sets forth the entire agreement between
the parties. Any prior agreements between or directly involving the parties to the Agreement are
superseded by the terms of this Agreement and thus are rendered null and void, except for
Xx. Xxxx’x Employment Agreement dated December 15, 2005, and the Indemnification Agreement dated
December 15, 2005, both of which shall remain intact and shall survive Xx. Xxxx’x separation from
Gevity. A copy of the Indemnification Agreement is attached hereto and incorporated herein as
Exhibit 2.
14. NO OTHER PROMISES. Xx. Xxxx affirms that the only consideration for signing this
Agreement is that set forth in Paragraph 2, that no other promise or agreement of any kind has been
made to or with him by any person or entity to cause him to execute this document, and that he
fully understands the meaning and intent of this Agreement, including but not limited to, its final
and binding effect.
15. INDEMNIFICATION. As a further material inducement to Gevity to enter into this
Agreement, Xx. Xxxx hereby agrees to indemnify and hold Gevity harmless from and against any and
all loss, costs, damages, or expenses, including, without limitation, attorneys’ fees incurred by
Gevity, arising out of any representation made herein by Xx. Xxxx that was false when made.
The parties further agree that in the event this Agreement becomes the subject of litigation
between the parties, the party prevailing in such litigation shall be entitled to receive from the
other party all reasonable costs and expenses, including without limitation, reasonable attorneys’
fees, incurred by the prevailing party in connection with such litigation.
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16. LEGALLY BINDING AGREEMENT. Xx. Xxxx understands and acknowledges (1) that this is
a legally binding release; (2) that by signing this Agreement, he is hereafter barred from
instituting claims against Gevity in the manner and to the extent set forth in Paragraph 4 and
Paragraph 5 above; and (3) that this Agreement is final and binding.
XX. XXXX SHOULD READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT
INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
| Date: October 13, 2006 | /s/ Xxx X. Xxxx | |||||
| Xxx X. Xxxx | ||||||
| For: Gevity HR, Inc. | ||||||
Date: October 13, 2006
|
By: | /s/ Xxxxx X. Xxxxxxxxx, Xx. | ||||
| Xxxxx X. Xxxxxxxxx, Xx. | ||||||
| Vice President and General Counsel | ||||||
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