EXHIBIT 10.9
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
SYKES(TM)
Real People. Real Solutions.
PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT DESCRIBES THE BASIC LEGAL
AND ETHICAL RESPONSIBILITIES THAT YOU ARE REQUIRED TO OBSERVE AS AN EXECUTIVE
EXPOSED TO HIGHLY SENSITIVE TECHNOLOGY AND STRATEGIC INFORMATION. CONSULT WITH
YOUR LEGAL COUNSEL IF ALL THE TERM OR RENEWAL PERIOD AND PROVISIONS OF THIS
AGREEMENT ARE NOT FULLY UNDERSTOOD BY YOU.
THIS AGREEMENT is made as of the 18th day of February 2002, by and between
XXXXX ENTERPRISES, INCORPORATED, a Florida corporation (the "Company"), and
XXXXXXX X. XXXXX (the "Executive").
W I T N E S S E T H :
WHEREAS, the Company desires to assure itself of the Executive's continued
employment in an executive capacity; and
WHEREAS, the Executive desires to be employed by the Company on the terms
and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements of
the parties contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
covenant and agree as follows:
1. EMPLOYMENT AND DUTIES. Subject to the terms and conditions of this
Agreement, the Company shall employ the Executive during the Term or Renewal
Period(s) (as hereinafter defined) in such management capacities as may be
assigned from time to time by the Company. The Executive accepts such employment
and agrees to devote his/her best efforts and entire business time, skill,
labor, and attention to the performance of such duties. The Executive agrees to
promptly provide a description of any other commercial duties or pursuits
engaged in by the Executive to the Company's Board of Directors. If the Board of
Directors determines in good faith that such activities conflict with the
Executive's performance of his/her duties hereunder, the Executive shall
promptly cease such activities to the extent as directed by the Board of
Directors. It is acknowledged and agreed that such description shall be made
regarding any such activities in which the Executive owns more than 5% of the
ownership of the organization or which may be in violation of Section 5 hereof,
and that the failure of the Executive to provide any such description shall
enable the Company to terminate the Executive for Cause (as provided in Section
6(c) hereof). The Company agrees to hold any such information provided by the
Executive confidential and not disclose the same to any person other than a
person to whom disclosure is reasonably necessary or appropriate in light of the
circumstances. In addition, the Executive agrees to serve without additional
compensation if elected or appointed to any office or position, including as a
director, of the Company or any subsidiary or affiliate of the Company;
provided, however, that the Executive shall be entitled to receive such benefits
and additional compensation, if any, that is paid to executive officers of the
Company in connection with such service.
2. TERM OR RENEWAL PERIOD. Subject to the Term or Renewal Period(s) and
conditions of this Agreement, including, but not limited to, the provisions for
termination set forth in Section 6 hereof, the employment of the Executive under
this Agreement shall commence on the effective date hereof and shall continue
for the term of employment stated in Exhibit A attached hereto and incorporated
herein (such Term shall herein be defined as the "Term"). Provided, however,
that this Agreement shall renew automatically for successive one (1) year
periods ("Renewal Periods") unless either party gives written notice of
termination at least that number of
Executive/Term or Renewal Period Xxxxx Enterprises Inc. [ILLEGIBLE]
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Xxxxxxx X. Xxxxx
General Manager and Senior Vice President, Americas
days set forth on Exhibit A before the end of the Term or Renewal Period, as
applicable (the "Renewal Notice Period"). The Executive agrees that some
portions of this Agreement, including Sections 4, 5, and 6 hereof, will remain
in force after the termination of this Agreement.
3. COMPENSATION.
(a) Base Salary and Bonus. As compensation for the Executive's services
under this Agreement, the Executive shall receive and the Company shall pay a
weekly base salary set forth on Exhibit A. Such base salary may be increased but
not decreased during the Term or Renewal Period in the Company's discretion
based upon the Executive's performance and any other factors the Company deems
relevant. Such base salary shall be payable in accordance with the policy then
prevailing for the Company's executives. In addition to such base salary, the
Executive shall be entitled during the Term or Renewal Period to a performance
bonus set forth on Exhibit A and to participate in and receive payments from, at
the Company's election, other bonus and other incentive compensation plans, if
any, as may be adopted by the Company.
(b) Payments. All amounts paid pursuant to this Agreement shall be subject
to withholding or deduction by reason of the Federal Insurance Contribution Act,
federal income tax, state and local income tax, if any, and comparable laws and
regulations.
(c) Other Benefits. The Executive shall be reimbursed by the Company for
all reasonable and customary travel and other business expenses incurred by the
Executive in the performance of the Executive's duties hereunder in accordance
with the Company's standard policy regarding expense verification practices. The
Executive shall be entitled to that number of weeks paid vacation per year that
is available to other executive officers of the Company in accordance with the
Company's standard policy regarding vacations and such other fringe benefits as
may be set forth on Exhibit A and shall be eligible to participate in such
pension, life insurance, health insurance, disability insurance, and other
executive benefits plans, if any, which the Company may from time to time make
available to its executive officers generally.
4. CONFIDENTIAL INFORMATION.
(a) The Executive has acquired and will acquire information and knowledge
respecting the intimate and confidential affairs of the Company, including,
without limitation, confidential information with respect to the Company's
technical data, research and development projects, methods, products, software,
financial data, business plans, financial plans, customer lists, business
methodology, processes, production methods and techniques, promotional materials
and information, and other similar matters treated by the Company as
confidential (the "Confidential Information"). Accordingly, the Executive
covenants and agrees that during the Executive's employment by the Company
(whether during the Term or Renewal Period hereof or otherwise) and thereafter,
the Executive shall not, without the prior written consent of the Company,
disclose to any person, other than a person to whom disclosure is reasonably
necessary or appropriate in connection with the performance by the Executive of
the Executive's duties hereunder, any Confidential Information obtained by the
Executive while in the employ of the Company.
(b) The Executive agrees that all memoranda; notes; records; papers or
other documents; computer disks; computer, video or audio tapes; CD-ROMs; all
other media and all copies thereof relating to the Company's operations or
business, some of which may be prepared by the Executive; and all objects
associated therewith in any way obtained by the Executive shall be the Company's
property. This shall include, but is not limited to, documents; computer disks;
computer, video and audio tapes; CD-ROMs; all other media and objects concerning
any technical data, methods, products, software, research and development
projects, financial data, financial plans, business plans, customer lists,
contracts, price lists, manuals, mailing lists, advertising materials; and all
other materials and records of any kind that may be in the Executive's
possession or under the Executive's control. The Executive shall not, except for
the Company's use, copy or duplicate any of the aforementioned documents or
objects, nor remove them from the Company's facilities, nor use any information
concerning them except for the Company's benefit, either during the Executive's
employment or thereafter. The Executive covenants and agrees that the Executive
will deliver all of the aforementioned documents and objects, if any, that may
be in the
Executive/Term Xxxxx Enterprises, Incorporated [ILLEGIBLE]
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Xxxxxxx X. Xxxxx
General Manager and Senior Vice President, Americas
Executive's possession to the Company upon termination of the Executive's
employment, or at any other time at the Company's request.
(c) In any action to enforce or challenge these Confidential Information
provisions, the prevailing party is entitled to recover its attorney's fees and
costs.
5. COVENANT NOT-TO-COMPETE AND NO SOLICITATION. Executive recognizes that
the Company is in the business of employing individuals to provide specialized
and technical services to the Company's Clients. The purpose of these Covenant
Not-to-Compete and No Solicitation provisions are to protect the relationship
which exists between the Company and its Client while Executive is employed and
after Executive leaves the employ of the Company. The consideration for these
Covenant Not-to-Compete and No Solicitation provisions is the Executive's
employment with the Company.
(a) Executive acknowledges the following:
(1) The Company expended considerable resources in obtaining
contracts with its Clients;
(2) The Company expended considerable resources to recruit and
hire employees who could perform services for its Clients;
(3) Through his/her employ with the Company, Executive will
develop a substantial relationship with the Company's existing or
potential Clients, including, but not limited to, being the sole or
primary contact between the Client and the Company;
(4) Executive will be exposed to valuable confidential
business information about the Company, its Clients, and the
Company's relationship with its Client;
(5) By providing services on behalf of the Company, Executive
will develop and enhance the valuable business relationship between
the Company and its Client;
(6) The relationship between the Company and its Client
depends on the quality and quantity of the services Executive
performs;
(7) Through employment with the Company, Executive will
increase his/her opportunity to work directly for the Client or for
a competitor of the Company; and
(8) The Company will suffer irreparable harm if Executive
breaches these Covenant Not-to-Compete and No Solicitation
provisions of this Agreement.
(b) Executive agrees that:
(1) The relationship between the Company and its Client
(developed and enhanced when the Executive performs services on
behalf of the Company) is a legitimate business interest for the
Company to protect;
(2) The Company's legitimate business interest is protected by
the existence and enforcement of these Covenant Not-to-Compete and
No Solicitation provisions;
(3) The business relationship which is created or exists
between the Company and its Client, or the goodwill resulting from
it, is a business asset of the Company and not the Executive; and
Executive/Term Xxxxx Enterprises, Incorporated [ILLEGIBLE]
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Xxxxxxx X. Xxxxx
General Manager and Senior Vice President, Americas
(4) Executive will not seek to take advantage of opportunities
which result from his/her employment with the Company and that
entering into the Agreement containing Covenant Not-to-Compete and
No Solicitation provisions is reasonable to protect the Company's
business relationship with its Clients.
(c) Restrictions on Executive. During the Term or Renewal Period(s)
of this Agreement and for a period of time set forth on herein after the
termination of this Agreement, for whatever reason, whether such
termination was by the Company or the Executive, voluntarily or
involuntarily, and whether with or without cause, Executive agrees that
he/she shall not, as a principal, employer, stockholder, partner, agent,
consultant, independent contractor, employee, or in any other individual
or representative capacity:
(1) Directly or indirectly engage in, continue in, or carry on
the business of the Company or any business substantially similar
thereto, including owning or controlling any financial interest in
any corporation, partnership, firm, or other form of business
organization which competes with or is engaged in or carries on any
aspect of such business or any business substantially similar
thereto;
(2) Consult with, advise, or assist in any way, whether or not
for consideration of any kind, any corporation, partnership, firm,
or other business organization which is now, becomes, or may become
a competitor of the Company in any aspect of the Company's business
during the Executive's employment with the Company, including, but
not limited to, advertising or otherwise endorsing the products of
any such competitor or loaning money or rendering any other form of
financial assistance to or engaging in any form of transaction
whether or not on an arm's length basis with any such competitor;
(3) Provide or attempt to provide or solicit the opportunity
to provide or advise others of the opportunity to provide any
services of the type Executive performed for the Company or the
Company's Clients (regardless of whether and how such services are
to be compensated, whether on a salaried, time and materials,
contingent compensation, or other basis) to or for the benefit of
any Client (i) to which Executive has provided services in any
capacity on behalf of the Company, or (ii) to which Executive has
been introduced to or about which the Executive has received
information through the Company or through any Client from which
Executive has performed services in any capacity on behalf of the
Company;
(4) Retain or attempt to retain, directly or indirectly, for
itself or any other party, the services of any person, including any
of the Company's employees, who were providing services to or on
behalf of the Company while Executive was employed by the Company
and to whom Executive has been introduced or about whom Executive
has received information through the Company or through any Client
for which Executive has performed services in any capacity on behalf
of the Company;
(5) Engage in any practice, the purpose of which is to evade
the provisions of this Agreement or to commit any act which is
detrimental to the successful continuation of or which adversely
affects the business or the Company; provided, however, that the
foregoing shall not preclude the Executive's ownership of not more
than 2% of the equity securities of a company whose securities are
registered under Section 12 of the Securities Exchange Act of 1934,
as amended;
(6) For purpose of these Covenant Not-to-Compete and No
Solicitation provisions, Client includes any subsidiaries,
affiliates, customers, and clients of the Company's Clients. The
Executive agrees that the geographic scope of this Covenant
Not-to-Compete shall extend to the geographic area where the
Company's Clients conduct business at any time during the Term or
Renewal Period(s) of this Agreement. For purposes of this Agreement,
"Clients" means any
Executive/Term Xxxxx Enterprises, Incorporated [ILLEGIBLE]
Revised February 2002 Page Number 4 Initial
Xxxxxxx X. Xxxxx
General Manager and Senior Vice President, Americas
person or entity to which the Company provides or has provided
within a period of one (1) year prior to the Executive's termination
of employment, labor, materials or services for the furtherance of
such entity's or person's business or any person or entity that
within such period of one (1) year the Company has pursued or
communicated with for the purpose of obtaining business for the
Company.
(d) Enforcement. These Covenant Not-to-Compete and No Solicitation
provisions shall be construed and enforced under the laws of the State of
Florida. In the event of any breach of this Covenant Not-to-Compete, the
Executive recognizes that the remedies at law will be inadequate, and that
in addition to any relief at law which may be available to the Company for
such violation or breach and regardless of any other provision contained
in this Agreement, the Company shall be entitled to equitable remedies
(including an injunction) and such other relief as a court may grant after
considering the intent of this Section 5. It is further acknowledged and
agreed that the existence of any claim or cause of action on the part of
the Executive against the Company, whether arising from this Agreement or
otherwise, shall in no way constitute a defense to the enforcement of this
Covenant Not-to-Compete, and the duration of this Covenant Not-to-Compete
shall be extended in an amount which equals the time period during which
the Executive is or has been in violation of this Covenant Not-to-Compete.
In the event a court of competent jurisdiction determines that the
provisions of this Covenant Not-to-Compete are excessively broad as to
duration, geographic scope, prohibited activities or otherwise, the
parties agree that this covenant shall be reduced or curtailed only to the
extent necessary to render it enforceable.
e) In an action to enforce or challenge these Covenant
Not-to-Compete and No Solicitation provisions, the prevailing party is
entitled to recover its attorney's fees and costs.
f) By signing this Agreement, the Executive acknowledges that he/she
understands the effects of these Covenant Not-to-Compete and No
Solicitation provisions and agrees to abide by them.
6. TERMINATION
(a) Death. The Executive's employment hereunder shall terminate upon
his/her death.
(b) Disability. If during the Term or Renewal Period(s) the Executive
becomes physically or mentally disabled in accordance with the terms and
conditions of any disability insurance policy covering the Executive, or, if due
to such physical or mental disability the Executive becomes unable for a period
of more than six (6) consecutive months to perform his/her duties hereunder on
substantially a full-time basis as determined by the Company in its sole
reasonable discretion, the Company may, at its option, terminate the Executive's
employment hereunder upon not less than thirty (30) days' written notice.
(c) Cause. The Company may terminate the Executive's employment hereunder
for Cause effective immediately upon notice. For purposes of this Agreement, the
Company shall have "Cause" to terminate the Executive's employment hereunder:
(i) if the Executive engages in conduct which has caused or is reasonably likely
to cause demonstrable and serious injury to Company; (ii) if the Executive is
convicted of a felony as evidenced by a binding and final judgment, order, or
decree of a court of competent jurisdiction; (iii) for the Executive's neglect
of his/her duties hereunder or the Executive's refusal to perform his/her duties
or responsibilities hereunder as determined by the Company's Board of Directors
in good faith; (iv) consistent failure to achieve goals established by the Board
of Directors or their designee(s); (v) gross incompetence; (vi) for the
Executive's violation of this Agreement, including, without limitation, Section
5 hereof; (vii) chronic absenteeism; (viii) for use of illegal drugs; (ix)
insobriety by the Executive while performing his or her duties hereunder; and
(x) for any act of dishonesty or falsification of reports, records, or
information submitted by the Executive to the Company.
(d) Payments Upon Termination. In the event of a termination of the
Executive's employment pursuant to Section 6 or by the Executive, all payments
and Company benefits to the Executive hereunder, except the payments (if any)
provided below, shall immediately cease and terminate. In the event of an early
termination
Executive/Term Xxxxx Enterprises, Incorporated [ILLEGIBLE]
Revised February 2002 Page Number 4 Initial
Xxxxxxx X. Xxxxx
General Manager and Senior Vice President, Americas
by the Company of the Executive's employment with the Company for any reason
other than pursuant to Section 6(A)(B)(C), the Company shall pay the Executive
an amount equal to the Liquidated Damages defined in (e) below (in lieu of
actual damages) for the early termination of his/her employment. In the event of
a termination of the Executive's employment for any reason other than pursuant
to Section 6(A)(B)(C), the Covenant Not-to-Compete set forth in Section 5 hereof
shall remain in full force and effect for the period set forth in (e) below. If
the Company terminates the Executive's employment pursuant to Section 6(A)(B)(C)
or the Executive terminates such employment, the Executive shall not be entitled
to any Liquidated Damages and the Covenant Not-to-Compete set forth in Section 5
hereof shall remain in full force and effect as set forth in (e) below.
Notwithstanding anything to the contrary herein contained, and in addition to
any other compensation to which the Executive may be entitled to receive
pursuant to this Agreement, the Executive shall receive all compensation and
other benefits to which he or she was entitled under this Agreement or otherwise
as an executive of the Company through the termination date. Executive shall not
be entitled to any Liquidated Damages in the event the Company does not
terminate this Agreement but elects not to renew this Agreement as permitted by
Section 2 hereof.
(e) Liquidated Damages and Non-Competition/Solicitation. The Liquidated
Damages ("Liquidated Damages") amount, if due as provided above, shall be equal
to the weekly amount stated as Base Salary on Exhibit A, through the end of the
Term or Renewal Period of the Agreement or for fifty two (52) weeks, whichever
is greater. The provisions of Section 5 (the "Non-Competition/Solicitation
Provisions") shall survive the early termination of this Agreement, by either
party, and for any reason, through the end of the Term or Renewal Period of the
Agreement or for fifty two (52) weeks, whichever is greater. Provided, however,
the Company may elect, in its sole discretion, to release the Executive from all
or any portion of the term of the Covenant Not-to-Compete set forth in Section 5
hereof. In the event the Company elects to release the Executive from such
covenants, the amount of Liquidated Damages payable hereunder, if any, shall be
reduced by an amount equal to the weekly amount stated as Base Salary on Exhibit
A, times the number of weeks the Company has elected to release the Executive
from such covenants. Provided however, notwithstanding anything herein to the
contrary, the amount of Liquidated Damages shall not be less than the weekly
amount stated as Base Salary on Exhibit A, times the number of weeks remaining
between the early termination date and the end of the Term or Renewal Period.
The amount of Liquidated Damages shall be paid biweekly in equal installments
over such period. Not withstanding anything here to the contrary, the
Non-Solicitation restrictions set forth in Section 5(c)(4) shall survive the
termination of this Agreement and remain in effect for the greater of fifty two
(52) full weeks following termination or the full stated Term or Renewal Period
of this Agreement.
(f) Condition Precedent to Receipt of Liquidated Damages. Executive
expressly agrees that in the event of a termination of this Agreement prior to
the expiration of the Term or Renewal Period, Executive will execute an
agreement containing the waiver and release provisions set forth on Exhibit "B."
Executive agrees and acknowledges that the execution of such an agreement upon
termination prior to the expiration of the Term or Renewal Period, is a
condition precedent to the obligation of the Company to pay any Liquidated
Damages hereunder. The provisions set forth in Exhibit "B" provide for the
release and waiver of important rights and/or claims that Executive might have
against the Company at the time of any early termination of this Agreement.
Executive hereby represents and warrants that he /she has read the attached
Exhibit "B" and fully and completely understands the provisions thereof.
7. NOTICE. For purposes of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been duly given when hand-delivered, sent by telecopier, facsimile
transmission, or other electronic means of transmitting written documents (as
long as receipt is acknowledged) or mailed by United States certified or
registered mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Executive, to the address set forth on the signature page.
If to the Company: Xxxxx Enterprises, Incorporated
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Group Executive and Sr. VP Human
Resources
Executive/Term Xxxxx Enterprises, Incorporated [ILLEGIBLE]
Revised February 2002 Page Number 6 Initial
Xxxxxxx X. Xxxxx
General Manager and Senior Vice President, Americas
with a copy to:
Xxxxx Enterprises, Incorporated
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: General Counsel
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that a notice of change of address shall
be effective only upon receipt.
8. ENFORCEMENT AND GOVERNING LAW. It is stipulated that a breach by
Executive of the restrictive covenants set forth in Sections 4 and 5 of this
Agreement will cause irreparable damage to Company or its Clients, and that in
the event of any breach of those provisions, Company is entitled to injunctive
relief restraining Executive from violating or continuing a violation of the
restrictive covenants as well as other remedies it may have. Additionally, such
covenants shall be enforceable against the Executive's successors or assigns or
by successor assigns.
The validity, interpretation, construction, and performance of this
Agreement shall be governed by the internal laws of the State of Florida. Any
litigation to enforce this Agreement shall be brought in the state or federal
courts of Hillsborough County, Florida, which is the principal place of business
for Company and which is considered to be the place where this Agreement is
made. Both parties hereby consent to such courts' exercise of personal
jurisdiction over them.
9. ARBITRATION OF DISPUTES.
(a) Duty to Arbitrate. Except for any claim by the Company to enforce the
restrictive covenants set forth in Sections 4 and 5 above, Company and Executive
agree to resolve by binding arbitration any claim or controversy arising out of
or related to Executive's employment by Company or this Agreement, to include
all matters directly or indirectly related to your recruitment, employment or
termination of employment by the Company including, but not limited to claims
involving laws against discrimination whether brought under federal and /or
state law, and/or claims involving co-employees but excluding workers
compensation claims, whether such claim is based in contract, tort, statute, or
any other legal theory, including any claim for damages, equitable relief, or
both. The duty to arbitrate under this Section extends to any claim by or
against any officer, director, shareholder, employee, agent, representative,
parent, subsidiary, affiliate, heir, trustee, legal representative, successor,
or assign of either party making or defending any claim that would otherwise be
arbitrable under this Section. However, this Section shall not be interpreted to
preclude either party from petitioning a court of competent jurisdiction for
temporary injunctive relief, solely to preserve the status quo pending
arbitration of the claim or controversy, upon a proper showing of the need for
such relief.
(b) The Arbitrator. A single arbitrator will conduct the arbitration in
Tampa, Florida, U.S.A., in accordance with the Commercial Arbitration Rules of
the American Arbitration Association (the "Rules"), and judgment upon the
written award rendered by the arbitrator may be entered in any court of
competent jurisdiction. Notwithstanding the application of the Rules, however,
discovery in the arbitration, including interrogatories, requests for
production, requests for admission, and depositions, will be fully available and
governed by the Federal Rules of Civil Procedure and Local Rules of the United
States District Court for the Middle District of Florida. The parties may agree
upon a person to act as sole arbitrator within thirty (30) days after submission
of any claim or controversy to arbitration pursuant to this Section. If the
parties are unable to agree upon such a person within such time period, an
arbitrator shall be selected in accordance with the Rules. The arbitrator will
not have the power to award punitive or exemplary damages.
Executive/Term Xxxxx Enterprises, Incorporated [ILLEGIBLE]
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Xxxxxxx X. Xxxxx
General Manager and Senior Vice President, Americas
(c) Limitations Period. The parties agree that any claim or controversy
that would be arbitrable under this Section must be submitted to arbitration
within one (1) year after the claim or controversy arises and that a failure to
institute arbitration proceedings within such time period shall constitute an
absolute bar to the institution of any proceedings, in arbitration or in any
court, and a waiver of all such claims. This Section will survive the expiration
or early termination of this Agreement.
(d) Governing Law. This Agreement shall be governed in its construction,
interpretation, and performance by the laws of the State of Florida, without
reference to law pertaining to conflict of laws. However, the Federal
Arbitration Act, as amended, will govern the interpretation and enforcement of
this Section.
(e) Attorneys' Fees. The prevailing party in any arbitration or dispute,
or in any litigation, arising out of or related to Executive's employment by
Company or this Agreement, shall be entitled to recover all costs and reasonable
attorneys' fees incurred on all levels and in all proceedings, including, but
not limited to, arbitration, filing, hearing, processing, and witness fees, and
any other costs and fees incurred, in any investigations, arbitrations, trials,
bankruptcies, and appeals.
(f) Severability. Each part of this Section is severable. A holding that
any part of this Section is unenforceable will not affect the duty to arbitrate
under this Section.
10. MISCELLANEOUS. No provision of this Agreement may be modified or
waived unless such waiver or modification is agreed to in writing signed by the
parties hereto; provided, however, that the terms of the performance bonus and
fringe benefits set forth or Exhibit A may be amended by the Company in its
discretion without the Executive's consent to the extent provided therein. No
waiver by any party hereto of any breach by any other party hereto shall be
deemed a waiver of any similar or dissimilar term or condition at the same or at
any prior or subsequent time. This Agreement is the entire agreement between the
parties hereto with respect to the Executive's employment by the Company and
there are no agreements or representations, oral or otherwise, expressed or
implied, with respect to or related to the employment of the Executive which are
not set forth in this Agreement. Any prior agreement relating to the Executive's
employment with the Company is hereby superseded and void, and is no longer in
effect. This Agreement shall be binding upon and inure to the benefit of the
Company, its respective successors and assigns, and the Executive and his/her
heirs, executors, administrators and legal representatives. Except as expressly
set forth herein, no party shall assign any of his/her or its rights under this
Agreement without the prior written consent of the other party and any attempted
assignment without such prior written consent shall be null and void and without
legal effect. The parties agree that if any provision of this Agreement shall
under any circumstances be deemed invalid or inoperative, the Agreement shall be
construed with the invalid or inoperative provision deleted and the rights and
obligations of the parties shall be construed and enforced accordingly. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed to be an original but all of which together will constitute but one and
the same instrument. This Agreement has been negotiated and no party shall be
considered as being responsible for such drafting for the purpose of applying
any rule construing ambiguities against the drafter or otherwise.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
XXXXX ENTERPRISES, INCORPORATED EXECUTIVE
By: /s/ Xxxxx X. Xxxxxx /s/ Xxxxxxx X. Xxxxx
----------------------------- --------------------------------
Address:
--------------------------------
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Executive/Term or Renewal Period Xxxxx Enterprises, Incorporated
Revised February 2002 Page Number 8
Xxxxxxx X. Xxxxx
General Manager and Senior Vice President, Americas
Exhibit A to Employment Agreement
This Exhibit A is attached to and made a part of that certain Amended and
Restated Employment Agreement effective February 18, 2002 (the "Employment
Agreement"), entered into by and between Xxxxx Enterprises, Incorporated (the
"Company") and Xxxxxxx X. Xxxxx (the "Executive"), which supercedes and replaces
all other Exhibit A's to the Employment Agreement.
Effective Date: February 18, 2002
Term: Through March 5, 2004
Base Salary: $3,075.58 per week through 3/5/02
$4,178.85 per week effective 3/6/02
Performance Bonus: 0%- 53%of annual base salary
Performance bonus payments will be made in
accordance with the Company's standard policy
for the payment of performance bonuses.
Fringe Benefits: Standard executive fringe benefits
Renewal Notice Period One Hundred Eighty (180) days
Stock Options: 100,000 incentive options under the 2001 Equity
Incentive Plan effective March 18, 2002
THE COMPANY RESERVES THE RIGHT, AT ITS SOLE DISCRETION, AT SUCH TIME OR TIMES AS
IT ELECTS, TO CHANGE OR ELIMINATE BONUSES OR OTHER BENEFITS.
IN WITNESS WHEREOF, the parties have executed this Exhibit A to the Employment
Agreement as of the 18th day of February, 2002.
XXXXX ENTERPRISES, INCORPORATED EXECUTIVE
By: /s/ Xxxxx X. Xxxxxx /s/ Xxxxxxx X. Xxxxx
----------------------------- -------------------------
EXHIBIT B TO EMPLOYMENT AGREEMENT
WAIVER AND RELEASE
Employee agrees as follows:
a. Employee agrees to release and forever discharge by this Agreement the
Employer from all liabilities, causes of actions, charges, complaints, suits,
claims, obligations, costs, losses, damages, injuries, rights, judgments,
attorneys' fees, expenses, bonds, bills, penalties, fines, and all other legal
responsibilities of any form whatsoever whether known or unknown, whether
suspected or unsuspected, whether fixed or contingent, whether in law or in
equity, including but not limited to those arising from any acts or omissions
occurring prior to the effective date of this Agreement, including those arising
by reason of any and all matters from the beginning of time to the present,
arising out of his past employment with, compensation during, and separation
from Employer. Employee specifically releases claims under all applicable state
and federal laws, including but not limited to, Title VII of the Civil Rights
Act of 1964 as amended, the Fair Labor Standards Act, the Rehabilitation Act of
1973, the Family Medical Leave Act, the Employee Retirement Income Security Act,
the Consolidated Omnibus Reconciliation Act of 1986, the Americans with
Disabilities Act, the Florida Civil Rights Act of 1992, the Workers'
Compensation Act, the Equal Pay Act, the Age Discrimination in Employment Act of
0000 (Xxxxx 00, Xxxxxx Xxxxxx Code, Section 621, et seq.) ("ADEA"), as well as
all common law claims, whether arising in tort or contract.
b. In addition to the other provisions in this Agreement, Employee
acknowledges that the information in the following paragraphs is included for
the express purpose of complying with the Older Workers' Benefits Protection
Act, 29 U.S.C. ss.626(f):
i. I,_______, was over 40 years of age when I separated my
employment and when I signed this Agreement. I realize there are many laws and
regulations prohibiting employment discrimination or otherwise regulating
employment or claims related to employment pursuant to which I may have rights
or claims, including the Age Discrimination in Employment Act of 1967, as
amended (the "ADEA"). I hereby waive and release any rights or claims I may have
under the ADEA.
ii. By signing this Agreement, I state that I am receiving
compensation and benefits to which I was not otherwise entitled. I am waiving
and releasing all claims against Employer that I may have based on my age. I am
not waiving any claim or action under the ADEA based upon rights or claims that
may arise after the date I sign this Agreement.
iii. I am being given continued compensation and benefits in
exchange for the release and waiver of all claims that I am agreeing to herein.
This continued compensation is in addition to anything of value to which I am
already entitled in that I am receiving this continued compensation without
having to perform services of an equal value.
Exhibit B to Employment Agreement Xxxxx Enterprises, Incorporated
Waiver and Release [ILLEGIBLE]
Revised February 2002 Page Number 1 Initial
iv. I was informed in writing that I could consult with an attorney
before signing this Agreement. I acknowledge that I was given the opportunity to
consider this Agreement for twenty-one (21) days before signing it, and, if I
sign it, to revoke it for a period of seven (7) days thereafter. Regardless of
when I signed this Agreement, I acknowledge that my seven-day period will not be
waived. No payments will be made to me until after the seven-day revocation
period expires.
c. Employee shall not disclose, either directly or indirectly, any
information whatsoever regarding any of the terms or the existence of this
Agreement or of any other claim Employee may have against the Employer, to any
person or organization, including but not limited to members of the press and
media, present and former employees of the Employer, companies who do business
with the Employer, or other members of the public. The only exceptions to
Employee's promise of confidentiality herein is that Employee may reveal such
terms of this Agreement as are necessary to comply with a request made by the
Internal Revenue Service, as otherwise compelled by a court or agency of
competent jurisdiction, as allowed and/or required by law, or as necessary to
comply with requests from Employee's accountants or attorneys for legitimate
business purposes.
d. Employee shall refrain from making any written or oral statement or
taking any action, directly or indirectly, which Employee knows or reasonably
should know to be disparaging or negative concerning the Employer except as
allowed or required by law. Employee also shall refrain from suggesting to
anyone that any written or oral statements be made which Employee knows or
reasonably should know to be disparaging or negative concerning the Employer, or
from urging or influencing any person to make any such statement. This provision
shall include, but not be limited to, the requirement that Employee refrain from
expressing any disparaging or negative opinions concerning the Employer,
Employee's separation from the Employer, any of the Employer's officers,
directors, or employees, or any other matters relative to the Employer's
reputation as an employer. Employee's promises in this subsection, however,
shall not apply to any judicial or administrative proceeding in which Employee
is a party or has been subpoenaed to testify under oath by a government agency
or by any third party.
e. Beginning on the date of this Agreement and continuing at all times
hereafter, Employee and Employer shall, without any additional compensation
except as provided herein, provide each other with full cooperation and
reasonable assistance in connection with Employer's defense of (i) any
litigation against Employer, its officers, its subsidiaries, or its affiliates
pending as of the date hereof or (ii) any other litigation against Employer, 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 Employer. Employee shall at all times promptly be reimbursed by
Employer for any and all out-of-pocket expenses, including travel expenses, that
may be incurred by Employee in providing such cooperation and assistance, and to
the extent that Employee provides any such assistance or cooperation after the
Post-Employment Period, the Employee also shall be compensated for his time in
providing such cooperation and assistance at a rate equivalent to a per diem
based upon his base salary as in effect under the Employment Agreement as of the
date hereof. 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
Employer further agree to provide their good will and good faith in providing
honest and forthright cooperation in all other
Exhibit B to Employment Agreement Xxxxx Enterprises, Incorporated
Waiver and Release [ILLEGIBLE]
Revised February 2002 Page Number 2 Initial
aspects of their defense of any such litigation.
EFFECTIVE DATE. This Agreement may be revoked by the Employee for a period
of seven (7) days following the execution of the Agreement, and the Agreement
shall not become effective or enforceable until the revocation period has
expired.
IN WITNESS WHEREOF, and intending to be legally bound, the Employer by its
authorized representative, and Employee, execute this Employment Waiver and
Release, by signing below voluntarily and with full knowledge of the
significance of all its provisions.
PLEASE READ CAREFULLY. THIS EMPLOYMENT WAIVER AND RELEASE INCLUDES A
RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
Exhibit B to Employment Agreement Xxxxx Enterprises, Incorporated
Waiver and Release [ILLEGIBLE]
Revised February 2002 Page Number 3 Initial
