EXHIBIT 10.39
[SYKES LOGO]
EMPLOYMENT AGREEMENT
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 1st day of April 2003, by and between
XXXXX ENTERPRISES, INCORPORATED, a Florida corporation (the "Company"), and
Xxxxx X. Xxxxxx (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 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.
Executive/ Term or Renewal Period Xxxxx Enterprises Inc.
Revised February 2002 Page Number 1
Xxxxx X. Xxxxxx
General Counsel and Corporate Secretary
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'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.
Executive/ Term or Renewal Period Xxxxx Enterprises Inc.
Revised February 2002 Page Number 2
Xxxxx X. Xxxxxx
General Counsel and Corporate Secretary
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
(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
Executive/ Term or Renewal Period Xxxxx Enterprises Inc.
Revised February 2002 Page Number 3
Xxxxx X. Xxxxxx
General Counsel and Corporate Secretary
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
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
Executive/ Term or Renewal Period Xxxxx Enterprises Inc.
Revised February 2002 Page Number 4
Xxxxx X. Xxxxxx
General Counsel and Corporate Secretary
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
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/ Term or Renewal Period Xxxxx Enterprises Inc.
Revised February 2002 Page Number 5
Xxxxx X. Xxxxxx
General Counsel and Corporate Secretary
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:
Executive/ Term or Renewal Period Xxxxx Enterprises Inc.
Revised February 2002 Page Number 6
Xxxxx X. Xxxxxx
General Counsel and Corporate Secretary
If to the Executive, to the address set forth on the signature
page.
If to the Company: Xxxxx Enterprises, Incorporated
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Group Executive and
Sr. VP Human Resources
with a copy to:
Xxxxx Enterprises, Incorporated
000 Xxxxx Xxxxxx Xxxxx, 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
Executive/ Term or Renewal Period Xxxxx Enterprises Inc.
Revised February 2002 Page Number 7
Xxxxx X. Xxxxxx
General Counsel and Corporate Secretary
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.
(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/ Xxxxx X. Xxxxxx
-------------------------------- ----------------------------------
Address:
__________________________________
__________________________________
Executive/ Term or Renewal Period Xxxxx Enterprises Inc.
Revised February 2002 Page Number 8
XXXXX X. XXXXXX
GENERAL COUNSEL AND CORPORATE SECRETARY
EXHIBIT "A" TO EMPLOYMENT AGREEMENT
TERM: September 30, 2005
BASE SALARY: $3,653.85 per week from April 1 2003 thru September
30, 2003 $3,942.31 per week effective October 1, 2003
PERFORMANCE BONUS: Eligible to participate in a performance based bonus
program ranging from 0% - 25% of base salary
FRINGE BENEFITS: Eligible for standard executive benefits
RENEWAL NOTICE PERIOD: One hundred eighty (180) days
THE COMPANY RESERVES THE RIGHT, AT ITS DISCRETION, AT SUCH TIME OR TIMES AS IT
ELECTS, TO CHANGE OR ELIMINATE INCENTIVES OR OTHER BENEFITS.
IN WITNESS WHEREOF, the parties have executed this Exhibit A
as of the 1st day of April 2003.
XXXXX ENTERPRISES, INCORPORATED EMPLOYEE
By: /s/ Xxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxx
-------------------------------- ----------------------------------
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. 626(f):
i. I, /s/ Xxxxx X. Xxxxxx, 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.
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
Exhibit B to Employment Agreement Xxxxx Enterprises, Incorporated
Waiver and Release
Revised February 2002 _______________
Page Number 1 Initial
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 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
Revised February 2002 _______________
Page Number 2 Initial
