EXHIBIT 10.5
SEPARATION AGREEMENT
THIS SEPARATION AGREEMENT ("Agreement"), dated as of this 2nd day
of November, 2001, is made and entered into between XXXXXX X. XXXXXX, an
individual resident of the State of Florida ("Xxxxxx"), and AHL SERVICES, INC.,
a Georgia corporation (the "Company").
W I T N E S S E T H:
WHEREAS, Xxxxxx has been employed by the Company pursuant to a
Restated Employment Agreement between Xxxxxx and the Company dated as of
February 1, 1997, as amended by Amendment No. 1 to Restated Employment Agreement
dated as of February 28, 1997 (collectively, the "Employment Agreement");
WHEREAS, the Employment Agreement expires by its terms on
December 31, 2001 (the "Termination Date"), following which Xxxxxx will cease to
be an employee and officer of the Company;
WHEREAS, the Company and Xxxxxx desire to settle fully and
finally all claims Xxxxxx may have against the Company, and the Company is
offering additional consideration to Xxxxxx in exchange for a release and waiver
of claims under, among other things, the Age Discrimination in Employment Act;
WHEREAS, in recognition of Xxxxxx'x executive position with the
Company and his knowledge and experience concerning the Company's Business and
its confidential information and trade secrets, Xxxxxx has agreed to provide
Company with other protections as set forth herein;
WHEREAS, except as expressly provided herein, the Company and Xxxxxx
intend that this agreement supersede and replace any and all other agreements
entered into between the Company and Xxxxxx; and
WHEREAS, capitalized terms used herein and not otherwise defined shall
have the meanings assigned to them in the Employment Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
promises and agreements contained herein, the parties hereto, intending to be
legally bound, hereby agree as follows:
Section 1 Termination of Employment.
Xxxxxx and the Company agree that, pursuant to the terms of the
Employment Agreement, as of the Termination Date Xxxxxx will cease to be an
employee or officer of the Company.
Section 2 Consulting Agreement.
As further consideration for the obligations and undertakings of the
Company set forth herein, including but not limited to the payments set forth in
Section 3(a) hereof, during the calendar year 2002 Xxxxxx shall provide
consulting services to the Company, at the Company's request, upon reasonable
notice by the Company. Xxxxxx agrees to use his special knowledge, experience,
judgment, and relationships in providing the Company with consulting services,
if any. In performing consulting services, Xxxxxx shall (1) be an independent
contractor, and shall not have management authority over any employees of the
Company, and the manner, means, details or methods by which Xxxxxx performs his
obligations under this Agreement shall be solely at his discretion; and (2)
comply with all applicable federal, state, and local laws and regulations and
conduct himself in an ethical manner at all times. The Company agrees to
-2-
reimburse Xxxxxx for the following reasonable expenses incurred in connection
with performing consulting services: parking fees; travel related expenses; long
distance telephone expenses; and photocopying expenses. All travel related
expenses must be approved by the Company in advance of their being incurred.
Xxxxxx shall submit supporting documentation for all consulting expenses.
Section 3 Payments to Xxxxxx.
(a) Payment. Provided Xxxxxx complies in all material respects
with the terms of this Agreement (including but not limited to those set forth
in Section 4, below), following the Termination Date the Company shall pay
Xxxxxx the cumulative sum of $411,000 in twelve equal installments of $34,250
each month.
(b) Taxes and withholding. Xxxxxx shall be solely responsible for
the payment of all taxes and/or withholding required by virtue of the payments
made pursuant to section 3(a) above. Xxxxxx shall indemnify and hold harmless
the Company for and from any resulting tax liability, including interest,
penalties, costs and expenses (as well as reasonable attorneys' fees), arising
from or related to the Company's payments to Xxxxxx as set forth herein.
(c) Compensation. As of the Termination Date, and notwithstanding
anything to the contrary contained in the Employment Agreement, Xxxxxx
acknowledges and agrees that he shall have no rights to any additional payments
or compensation, except that:
(i) Xxxxxx shall be entitled to receive the Salary
otherwise payable to him under the Employment
Agreement through and including the Termination Date;
(ii) Xxxxxx acknowledges and agrees that he shall not be
entitled to receive any Bonus for calendar year 2001;
-3-
(iii) Xxxxxx shall be entitled to receive the car allowance
provided for in the Employment Agreement through and
including the Termination Date; and
(iv) Xxxxxx shall be entitled to reimbursement of
reasonable and necessary expenses incurred by him on
or prior to the Termination Date at the request of
and on behalf of the Company.
(v) Xxxxxx shall be entitled to use his remaining paid
vacation on the following dates: November 12, 13, 19,
and Xxxxxxxx 0, 0, 0, xxx 0, 0000.
(x) Benefit Plans. As of the Termination Date and notwithstanding
anything to the contrary contained in the Employment Agreement, Xxxxxx shall
have no rights to participate in any benefit plans of the Company except as
required by the Consolidated Omnibus Budget Reconciliation Act of 1986, as
amended ("COBRA"), or other applicable law. Xxxxxx shall be solely responsible
for all premium payments, if any.
(e) Stock Options. In consideration of the promises and agreements
herein, Xxxxxx agrees to relinquish the following stock options:
EXERCISE PRICE
DATE OF GRANT NUMBER OF SHARES PER SHARE EXPIRATION DATE
October 31, 1997 50,000 17.875 October 31, 2007
October 9, 1998 25,000 21.75 October 9, 2008
May 14, 1999 50,000 25.375 May 14, 2009
October 28, 1999 20,000 20.6875 October 28, 2009
The following stock options shall survive the termination of Xxxxxx'x
employment (the "Surviving Options"):
-4-
EXERCISE PRICE
DATE OF GRANT NUMBER OF SHARES PER SHARE EXPIRATION DATE
December 1, 1996 268,750 $10.00 December 1, 2006
February 28, 1997 6,250 10.00 February 28, 2007
May 9, 2000 30,000 8.8125 May 9, 2010
July 11, 2000 15,000 6.875 July 11, 2010
May 10, 2001 45,000 7.91 May 10, 2011
The exercise rights and expiration of the Surviving Options shall
be governed by the terms of the Company's 1997 Stock Incentive Plan.
(f) Suite at University of Virginia's Xxxxx Stadium. Xxxxxx understands and
agrees that the Company shall have no future obligation to pay, and shall not
pay, for the cost of renting or maintaining the football suite at the University
of Virginia's Xxxxx Stadium. Xxxxxx agrees that he shall use his best efforts to
release the Company from any and all responsibility for rental and maintenance
of the suite (if any), and shall indemnify and hold the Company harmless from
and against any and all costs, expenses, claims, damages and liabilities arising
out of or relating to the rental or maintenance of the football suite.
Section 4 Non-Competition, Trade Secrets, Confidential
Information, and Non Solicitation.
Section 5 of the Employment Agreement shall remain in full force and
effect after the Termination Date, provided that the definition of "Company
Activities" in Section 5.1 of the Employment Agreement is hereby amended to
include, in addition to the activities listed therein, any business or service
engaged in by Employer as of the Termination Date, and the definition of
"Territory" in Section 5.1 of the Employment Agreement is hereby amended to read
in its entirety as follows: "the United States of America, the United Kingdom
and Germany." The
-5-
restrictions stated in this Agreement and Section 5 of the Employment Agreement
are in addition to and not in lieu of protections afforded to Trade Secrets and
Confidential Information under applicable state law. Nothing in this Agreement
or Section 5 of the Employment Agreement is intended to or shall be interpreted
as diminishing or otherwise limiting the Company's right under applicable state
law to protect its Trade Secrets and Confidential Information.
Section 5 General Release by Xxxxxx.
(a) Xxxxxx hereby knowingly and voluntarily releases and forever
discharges the Company and each of its affiliates, predecessors, successors,
parents, subsidiaries, divisions and assigns and their respective current and
former officers, directors, partners, shareholders, representatives, employees,
former employees, attorneys, and agents (collectively referred to as
"Releasees"), collectively, separately, and severally, from any and all state,
federal, or local claims, causes of action, liabilities, and judgments of every
type and description whatsoever at law or in equity (including, but not limited
to, claims arising under the Civil Rights Act of 1964, as amended, the
Rehabilitation Act of 1973, as amended, the Employee Retirement Income Security
Act of 1974, as amended, the Fair Labor Standards Act of 1938, as amended, the
Americans with Disabilities Act, state and local labor and employment laws, and
state tort, contract, or statutory law) that he, his heirs, administrators,
executors, personal representatives, beneficiaries, and assigns have, may have
or may claim to have against the Releasees for compensatory or punitive damages
or other legal or equitable relief of any type or description.
(b) Xxxxxx also hereby knowingly and voluntarily releases and
forever discharges the Releasees, collectively, separately, and severally, from
any and all claims, causes of action, and liabilities arising under the Age
Discrimination in Employment Act of 1967, as amended ("ADEA"), which he, his
heirs, administrators, executors, personal representatives,
-6-
beneficiaries, and assigns may have or claim to have against the Releasees. The
claims described in paragraphs (a) and (b) of this Section 5 are collectively
referred to as the "Released Claims". Notwithstanding any other provision or
paragraph of this Agreement, Xxxxxx does not hereby waive any rights or claims
under the ADEA that may arise after the date on which he executes this
Agreement.
(c) Xxxxxx understands and agrees that the Released Claims are
intended to and do include any and all claims of every nature and kind
whatsoever (whether known, unknown, suspected, or unsuspected) which he has or
may have against the Releasees, individually or collectively.
(d) Xxxxxx further acknowledges that he may hereafter discover
facts different from or in addition to those which he now knows or believes to
be true with respect to the Released Claims and agrees that, in such event, this
Agreement shall nevertheless be and remain effective in all respects,
notwithstanding such different or additional facts, or the discovery thereof.
(e) Xxxxxx hereby acknowledges and represents that he has been
given a reasonable period of at least 21 days to consider the terms of this
Agreement; that the Company has advised him (or hereby advises him) in writing
to consult with an attorney prior to executing this Agreement; and that he has
received valuable and good consideration to which he would not otherwise be
entitled in exchange for his execution of this Agreement.
(f) Xxxxxx and the Company hereby acknowledge that Xxxxxx may
revoke this Agreement within seven days after he has executed the Agreement. In
the event Xxxxxx chooses to exercise his option to revoke this Agreement, Xxxxxx
shall notify the Company in writing, via facsimile, addressed to the Company's
designated agent for this purpose, Xxxxx
-7-
XxXxxxxxx, XX Human Resources, 0 Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxx, XX 00000,
and return to the Company all monies, if any paid pursuant to this Agreement, no
later than 5:00 p.m. of the last day of the revocation period.
Section 6 Non-Disparagement.
Xxxxxx hereby agrees and covenants that he shall not make any
statement, written or verbal, in any forum or media, or take any action in
disparagement of the Company, including but not limited to negative references
to the Company's products, services, corporate policies, officers and/or
employees and any other action which may disparage the Company to the general
public and/or their employees, customers, suppliers, and/or business partners.
Section 7 Confidentiality.
Except as required by law, Xxxxxx agrees to keep the fact and terms of
this Agreement in strict confidence. Xxxxxx agrees not to disclose this
document, its contents, or subject matter to any person (including, but not
limited to, former or current executives or customers of Company), other than
his spouse, attorney, accountant, income tax preparer, or other similar
professionals who or which need to possess the information in order to render
the services for which they were retained.
Section 8 Miscellaneous.
(a) Future Cooperation. Xxxxxx agrees and covenants that he shall,
to the extent reasonably requested in writing, cooperate with and assist the
Company in any pending or future litigation in which the Company is a party, and
regarding which Xxxxxx, by virtue of his employment with the Company, has
factual knowledge or information relevant to said litigation. The Company will
reimburse Xxxxxx for his reasonable out-of-pocket expenses and a per diem
allowance of $1500 per day in complying with this Section 8(a).
-8-
(b) Notices. Any notice or other document to be given hereunder by
any party hereto to any other party hereto shall be in writing and delivered in
person or by courier, by telecopy transmission or sent by any express mail
service, postage or fees prepaid at the following addresses:
The Company
AHL Services, Inc.
0 Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxx XxXxxxxxx, VP Human Resources
Telecopy No.: 000-000-0000
Xxxxxx
Xxxxxx X. Xxxxxx
or at such other address or number for a party as shall be specified by like
notice. Any notice which is delivered in the manner provided herein shall be
deemed to have been duly given to the party to whom it is directed upon actual
receipt by such party or its agent.
(c) Binding Effect. This Agreement shall inure to the benefit of,
and shall be binding upon, the Company and its successors and assigns, and
Xxxxxx and his assigns, executors, administrators, personal representatives,
heirs, and legatees.
(d) Entire Agreement. This Agreement is intended by the parties
hereto to be the final expression of their agreement with respect to the subject
matter hereof and is the complete and exclusive statement of the terms thereof,
notwithstanding any representations, statements or agreements to the contrary
heretofore made. Except as provided herein, this Agreement supersedes and
replaces, effective as of the date above, any and all other agreements,
-9-
written or oral, express or implied, between the parties concerning the subject
matter hereof. This Agreement also supersedes and replaces any and all other
agreements, written or oral, express or implied, between Xxxxxx and the Company
and/or any of its past or present parents, subsidiaries, or affiliates. This
Agreement may be modified only by a written instrument signed by both of the
parties hereto.
(e) Governing Law. This Agreement shall be deemed to be made in,
and in all respects shall be interpreted, construed, and governed by and in
accordance with, the laws of the State of Georgia. No provision of this
Agreement shall be construed against or interpreted to the disadvantage of any
party hereto by any court or other governmental or judicial authority or by any
board of arbitrators by reason of such party or its counsel having or being
deemed to have structured or drafted such provision.
(f) Severability. The provisions of this Agreement are severable,
and if any part of it is found to be unenforceable, the other paragraphs and
provisions shall remain fully valid and enforceable.
(g) Headings. The section and paragraph headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. Unless otherwise specified to the
contrary, all references to sections and paragraph headings are references to
sections and paragraph headings of this Agreement.
(h) Specific Performance. Each party hereto hereby agrees that any
remedy at law for any breach of the provisions contained in this Agreement shall
be inadequate and that the other parties hereto shall be entitled to specific
performance and any other appropriate injunctive
-10-
relief in addition to any other remedy such party might have under this
Agreement or at law or in equity.
(i) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
(j) Understanding. Xxxxxx acknowledges and agrees that he has read
and fully understands the contents and the effect of this Agreement. Xxxxxx
acknowledges and agrees that he has had a reasonable opportunity and been
advised to seek the advice of an attorney as to such content and effect and that
he did so to the extent he deemed appropriate. Xxxxxx accepts each and all of
the terms, provisions, and conditions of this Agreement, and does so voluntarily
and with full knowledge and understanding of the contents, nature, and effect of
this Agreement.
[SIGNATURES ON FOLLOWING PAGE]
-11-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
-------------------------------------------
XXXXXX X. XXXXXX
AHL SERVICES, INC.
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
-12-
