EXHIBIT 10.45
EMPLOYMENT SEPARATION AGREEMENT,
WAIVER AND RELEASE
THIS EMPLOYMENT SEPARATION AGREEMENT, WAIVER AND RELEASE (hereinafter
"this Agreement") is made and entered into between XXXXX ENTERPRISES,
INCORPORATED, and its subsidiaries, affiliates, directors, officers, employees,
representatives and agents (collectively referred to herein as the "Employer"),
and XXXXXXXX XXXXXX, and his heirs, assigns, executors and administrators
(collectively referred to herein as "Employee") on the date set forth below.
WHEREAS the parties desire to amicably end their employment
relationship on November 5, 2001, and fully and finally settle all existing or
potential claims and disputes between them, whether known or unknown as of this
date, the parties agree as follows:
1. OBLIGATIONS OF THE EMPLOYER. In consideration of Employee's
agreement to the terms herein, the Employer shall provide to Employee the
following which the Employer is not otherwise legally obligated to provide:
a. For the period beginning on the date hereof through
July 30, 2003 (the "Post-Employment Period"), Employer will pay to Employee an
amount equal to $1519.23 per week as the Liquidated Damages described in Section
6 (e) of the Employment Agreement. Such Liquidated Damages amount shall be paid
in bi-weekly payments of $3038.46, subject to applicable tax withholding as W-2
income and reported in accordance therewith. Such payments shall be made on
regular paydays in accordance with Employer's regular payroll practices.
b. For the period beginning on the date hereof through
the 5th day of November, 2002 (the "Non-Compete Period"), Employer will pay to
Employee an amount equal to the Non-Compete Payments of $1519.23 per week as set
forth on Exhibit A to the Employment Agreement. Such Non-Compete Payments shall
be paid for the duration of the Non-Compete Period in bi-weekly payments of
$3038.46, subject to applicable tax withholding as W-2 income and reported in
accordance therewith. Such payments shall be made on regular paydays in
accordance with Employer's regular payroll practices.
c. Employer shall pay to Employee, in a lump sum,
$9746.62, less applicable tax withholdings, representing the dollar value of all
of Employee's accrued but unused vacation as of the date hereof. Such lump sum
will be paid to Employee by the end of the first working day following receipt,
by Employer, of this signed Agreement.
d. In accordance with the provisions of the Consolidated
Omnibus Reconciliation Act of 1986 ("COBRA"), Employer is required to advise
Employee that upon separation of service, Employee may elect to continue, for a
period of up to eighteen (18) months, the same health insurance coverage, dental
insurance coverage, vision insurance coverage and prescription drug plan that is
being provided to Employee by Employer as of the date of this Agreement.
Employee will be
notified of his rights under COBRA and the cost of such continuation of coverage
by letter. Employee must affirmatively elect such coverage in order to take
advantage of this right. In the event Employee timely makes such election,
beginning on the first day following separation and continuing for the first six
(6) months of the Post-Employment Period, Employer shall cover the cost to
Employee to obtain such COBRA benefits. Upon expiration of the first six (6)
months of the Post-Employment Period, Employee will be solely responsible for
payment of the costs for this coverage, plus a 2% administrative fee as provided
by law, to maintain the COBRA benefits, absent which such benefits will
terminate. Notwithstanding the foregoing, in the event that Employee obtains
full-time employment prior to the expiration of the first six (6) months of the
Post- Employment Period, then Employer's obligation to provide the benefits
shall terminate upon the first day on which Employee would be eligible to
receive benefits from his new employer.
2. OBLIGATIONS OF EMPLOYEE. In consideration of the foregoing
separation arrangements provided by the Employer, 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. 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.
c. 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.
d. 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.
3. TERMINATION AND RECOVERY OF BENEFITS. The Employer is entitled
to recover the payments paid to Employee under paragraph l of this Agreement if
the Employer reasonably relied upon any misrepresentation of Employee in
agreeing to undertake those obligations.
4. NON-ADMISSION. Neither this Agreement, nor anything contained
herein, is to be construed as an admission by the Employer or Employee or as
evidence of any liability, wrongdoing or unlawful conduct whatsoever.
5. SEVERABILITY. If any provision of this Agreement is
invalidated by a court of competent jurisdiction, then all of the remaining
provisions of this Agreement shall continue unabated and in full force and
effect.
6. ENTIRE AGREEMENT. This Agreement contains the entire
understanding and agreement between the parties and shall not be modified or
suspended except upon express written consent of the parties to this Agreement.
Employee represents and acknowledges that in executing this Agreement Employee
does not rely and has not relied upon any representation or statement made by
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the Employer or its agents, representatives or attorneys which is not set forth
in this Agreement.
7. SUPERSEDES PAST AGREEMENTS. Except as expressly provided
herein, this Agreement supersedes and renders null and void any previous
employment agreements or contracts, whether written or oral, between Employee
and the Employer; however, the non-compete agreement, the confidentiality
agreement, and the Ownership of Executive Developments provisions contained in
Sections 4, 5 and 7 of the Employment Agreement with the Employer will remain in
full force and effect.
8. GOVERNING LAW. This Agreement shall be governed by the laws of
the State of Florida.
9. ATTORNEY'S FEES. In any action brought to enforce this
Agreement, the party in whose favor a judgment or decree has been rendered shall
be entitled to recover costs and attorney's fees expended in any action to
enforce the terms of this Agreement (including seeking injunctive relief or
recision), or to defend a claim, lawsuit or other type of action which has been
waived herein from the non-prevailing party.
10. VOLUNTARY AND KNOWING. Employee enters into this Agreement
knowingly and voluntarily and acknowledges that he has read and understands the
language of this Agreement. Employee further acknowledges that he was given an
opportunity to consider this Agreement and advised to consult an attorney.
IN WITNESS WHEREOF, and intending to be legally bound, the Employer, by
its authorized representative, and Employee, execute this Employment Separation
Agreement, Waiver and Release, by signing below voluntarily and with full
knowledge of the significance of all its provisions.
PLEASE READ CAREFULLY. THIS EMPLOYMENT SEPARATION AGREEMENT, WAIVER AND
RELEASE INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
Executed at 000 X. Xxxxx Xxxxxx, Xxx. 0000, Xxxxx, XX 00000 this 9th day of
November 2001.
/S/ Xxxxx X. Xxxxxx /S/ Xxxxxxxx Xxxxxx
------------------------------------ ---------------------------------------
Witness as to Employee Xxxxxxxx Xxxxxx
Executed at 000 X. Xxxxx Xxxxxx, Xxx. 0000, Xxxxx, XX 00000 this 9th day of
November 2001.
XXXXX ENTERPRISES, INCORPORATED
/S/ Xxxxxxx Xxxxxx /S/ Xxxxx X. Xxxxxx
------------------------------------ ---------------------------------------
Witness as to Employer Xxxxx X. Xxxxxx
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