Exhibit 10
CONFIDENTIAL RELEASE AND WAIVER AGREEMENT
This Confidential Limited Release and Waiver Agreement ("Agreement") is
knowingly, willingly, and voluntarily entered into by Xxxxxx X. Xxxxx
("Employee") and Exigent International, Inc., a Delaware corporation, and all
its subsidiaries, related companies, officers, directors, agents, assigns,
employees, representatives, successors, stockholders, attorneys, insurers, and
any other persons or entities acting on behalf of Exigent International, Inc.
(collectively, the "Company"). The Agreement is made in light of the following
circumstances:
WHEREAS, Employee agrees to resign his position at the Company effective as of
July 17th, 1998 (the "Effective Date"). This Agreement shall not have any effect
on any prior confidentiality agreement executed with the Company.
WHEREAS, this Agreement shall not in any way be construed as an admission by the
Company or its officers, directors, employees, or agents that it is liable in
any fashion to Employee. Furthermore, Employee acknowledges that, but for the
execution of the release, he would not be entitled to receive the consideration
recited herein.
WHEREAS, in order to avoid the costs, burdens and uncertainties of litigation,
Employee and the Company now wish to resolve, compromise and finally settle on
an amicable basis, any and all claims Employee has or may have against the
Company;
Employee and the Company agree as follows:
COMPANY'S PROMISES TO EMPLOYEE
1. In exchange for Employee's promises contained in the Agreement, the
Company will, as of the Effective Date and upon the signing of this
Agreement, (i) pay Employee fifty two (52) weeks of severance pay
based upon Employee's hourly rate of forty four (44) dollars per hour
in the amount of ninety one thousand five hundred twenty (91,520)
dollars (less taxes required to be withheld) per the Company's
severance pay policy with payments being made on regularly scheduled
"pay days" commencing August 31, 1998, (ii) pay Employee's salary
through July 31, 1998, and (iii) pay Employee for accrued, unused
vacation (i.e., three thousand two hundred eighty one (3,281) dollars)
and personal leave (i.e., seven thousand five hundred sixty eight
(7,568) dollars) with a lump sum payment to be made for such vacation
and personal leave on the August 31, 1998 pay day.
EMPLOYEE'S PROMISES TO COMPANY
2. In consideration of the promises made by the Company in ss.1 above,
Employee, for himself, successors and assigns, knowingly, willingly,
and voluntarily releases and waives all rights, claims, damages
(including back pay, front pay, liquidated damages, compensatory
damages, or punitive damages attorneys' fees and litigation costs),
demands, obligations to date, known or unknown (hereinafter "rights
and claims") against the Company and all persons acting by, through,
under or in concert with the Company, and regarding any aspect of his
employment with the Company, the subsequent ending of that employment,
and any other events occurring prior to, and including, the Effective
Date of the Agreement. These rights and claims include, but are not
limited to, rights or claims under the Age Discrimination in
Employment Act of 1967, as amended, the Older Workers Benefit
Protection Act ("OWBPA"), Title VII of the Civil Rights Act of 1964,
as amended, The Civil Rights Act of 1991, the Fair Labor Standards Act
of 1938, the Employee Retirement Income Security Act of 1974, as
amended, the Rehabilitation Act of 1973, as amended, The Americans
With Disabilities Act, The National Labor Relations Act, as amended,
The Florida Human Rights Act, as amended, The Florida Handicap
Discrimination Act, The Florida Workers' Compensation Act, and any or
all rights or claims for employment discrimination, wrongful or
retaliatory discharge, tortious discharge, breach of implied or
express employment contract, promissory estoppel, invasion of privacy,
negligence, defamation, fraud, outrageous conduct, intentional or
negligent infliction of emotional distress, unpaid wage claims and any
or all rights or claims under any other federal, state, or local
statutes, or under common law. The Agreement is not an admission by
the Company that it has violated any common law, or any federal, state
or local statute, or acted wrongfully toward Employee in any way.
3. The release also includes but it is not limited to the release by
Employee of any claim for attorney's fees or costs against the Company
in connection with the review of this Agreement and employee
specifically agrees that he will be responsible for his own attorneys'
fees and any such costs incurred by him and that Employee
unconditionally releases and discharges Company from any additional
claims for such attorney's fees or costs.
4. Employee specifically acknowledges that he is not entitled to any
other form of compensation, benefit, severance or payment other than
that listed in this Agreement and that this Agreement is the full,
final, and complete settlement of any claims between Employee and the
Company. Notwithstanding the foregoing, this provision shall not
modify, alter or amend any vested rights which Employee may have under
existing qualified retirement plans.
5. Employee covenants and agrees that he will not induce or incite claims
of discrimination, wrongful discharge, criminal misconduct or any
other claims against the Company.
6. Employee further covenants and agrees that he will not provide
consulting advice or counsel to or otherwise cooperate with or assist
any employee or former employee of the Company in any action, suit,
charge, or proceeding of any kind against Company.
7. Employee further covenants and agrees that in connection with any
action at law, proceeding in equity, or any administrative proceeding,
commenced by any employee or former employee against the Company,
Employee will not voluntarily participate as a party or witness or
voluntarily attempt to offer into evidence anything against the
Company unless compelled to do so by force of law.
8. Employee agrees never to institute, directly or indirectly, any action
or proceeding of any kind against the Company based on, arising out of
matters that occurred during his employment with the Company or the
ending of that employment. If Employee does file or institute, either
directly or indirectly, any action lawsuit, or proceeding of any kind
against the company on account of any matters over which he has waived
his rights in this Agreement, Employee agrees to indemnify and hold
the Company harmless from any damages or costs incurred by the Company
as a result of his actions, including any costs, expenses, and
reasonable attorneys' fees incurred by the Company.
9. Should Employee commence or prosecute any action or proceeding
contrary to the provisions of this Agreement, Employee agrees to
indemnify the Company for all reasonable court costs and reasonable
attorneys' fees incurred in the defense of such action or in
establishing or maintaining the application or validity of the
Agreement or any of its provisions.
10. Employee represents and promises that no person other than himself is
entitled to assert any claims of any kind against the Company on his
behalf, and he agrees to indemnify and hold harmless the Company
against any such claims that may be asserted by any other person.
11. Employee represents and warrants that no other person other than the
signatories hereto had or has any present interest in the matters
referred to or covered by the Agreement; that he has the sole right
and exclusive authority to execute the Agreement; and he has not sold,
assigned, transferred, conveyed, or otherwise disposed of any claim or
demand relating to any matter covered by the Agreement.
12. Employee waives any claims for reimbursement for any expense not
submitted in writing prior to the date he executes the Agreement.
Employee understands that he is not authorized to incur any expense or
obligations on behalf of the Company effective July 17, 1998 and he
affirms that he has not caused the Company to incur any such expense
or obligation.
13. On or before July 17, 1998, employee agrees to return to Company any
and all property of company currently in his possession or control,
including identification badges, keys, papers, computers, security
badges, computer files, and other equipment. Employee represents and
promises that he has not damaged or otherwise sabotaged such property.
Additionally, Employee agrees to remove all personal property from the
Company's premises by 5:00 p.m. EST on July 20th, 1998. Should
Employee need additional access to the Company, those arrangements
shall be made through the Company's Human Resources Department.
14. Employee agrees that for a period of twelve (12) months from the
Effective Date that he will not solicit (i) for employment any persons
with the Company if such persons are employed by the Company at the
time the solicitation or offer of employment is first made, or (ii)
any customers of the Company for any reason.
15. Employee also agrees that for a period of twelve (12) months from the
Effective Date that he shall not engage in or become interested,
directly or indirectly as a director, officer, employee, 10% or more
stockholder, partner in, or consultant to any business, which competes
with the Company in supplying command and control software
applications. Employee also agrees not to act as an advisor either as
an employee, partner or consultant, to any firm, person or corporation
relative to their purchase, lease, or development of satellite command
and control software, with out the Company's express written consent.
16. Employee agrees for a period of twelve (12) months from the Effective
Date not to do or say anything that reasonably may be expected to have
the effect of disparaging the Company or diminishing or impairing the
goodwill and reputation of the Company and the products or services it
provides. Likewise, the Company agrees not to do or say anything that
reasonably may be expected to have the effect of disparaging Employee
or diminishing or impairing Employee's reputation.
17. From time to time during the term in which severance is paid to
Employee pursuant to Section 1 above, Employee agrees that upon
reasonable advance request and during customary business hours,
Employee will provide consulting services on matters pertaining to the
business of the Company with the CEO of the Company.
OTHER PROMISES
18. If Employee should breach any portion of this Agreement, the Company
shall be entitled immediately to recover all payments made to
Employee. Moreover, in the event that the Company claims that Employee
has failed to comply with the terms of the Agreement, all provisions
of the Agreement shall remain valid and binding upon all parties.
Employee further agrees that any legal action filed by the Company to
enforce the Agreement shall not constitute the basis for a claim of
retaliation under any federal, state or local law. Furthermore,
Employee and the Company agree that the Agreement may be used as
evidence in a subsequent proceeding in which the Company alleges a
breach of the Agreement. Furthermore, Employee and the Company
understand that if the Agreement is breached in any manner, both
parties will have the right to pursue all remedies in law or equity.
Moreover, the prevailing party in any litigation with respect to any
breach of the Agreement shall be entitled to any and all reasonable
attorneys' fees and other costs of litigation, through appeal, from
the other party.
19. This Agreement terminates Employee's right to participate in the
Company Profit Sharing and 401(k) Plan, the Money Purchase Pension
Plan and the ESOP as of the Effective Date, but does not have any
effect on vested rights. Employee will receive information regarding
these plan benefits and certain other health benefits under separate
cover. Notwithstanding the foregoing, this provision shall not modify,
alter or amend any vested rights which Employee may have under the
foregoing qualified retirement plans.
20. Notwithstanding anything to the contrary, Employee shall qualify as a
retiree for purposes of the retiree medical plan currently adopted by
the Company. Prior to such plan coming into force, the Company agrees
to pay any necessary COBRA premiums on behalf of Employee to effect
continuing coverage between the employee and the retiree plan. Nothing
contained herein shall obligate the Company to pay any premium other
than as stated by such plan or create any obligation other than as is
stated in such plan.
21. This Agreement and its various rights and obligations are binding upon
Employee and the Company and their respective attorneys, heirs,
executors, successors, administrators, and assigns. Employee and the
Company expressly acknowledge and agree that there are no other
agreements between them; that the validity, effect and operation of
the Agreement shall be determined by the laws of the State of Florida;
that there is no written or oral understanding or agreement between
the parties that is not recited herein; that both parties have had
ample opportunity to consult with counsel or other advisers of their
choice, with respect to said claims and the Agreement; and that the
Company's attorney and Employee's attorney, are authorized to take all
action necessary to complete the Agreement. The Agreement may be
amended, modified, or changed only by an agreement in writing that is
signed by both parties.
22. Notwithstanding anything to the contrary set forth herein, prior to
the Company canceling or terminating Employee's right to receive
severance as set forth in ss.1 above for a breach of either ss.5 or
ss.18 above, the Company shall be obliged to notify Employee in
writing of i) the alleged breach occurring under those subsections,
ii) that the harm caused to the Company was material and adverse, and
iii) any remedial actions which need to be undertaken by the Employee
to undo or prevent further harm. Employee shall have ten (10) calendar
days to respond to the Company in writing disputing or curing any
claims of the Company, to the reasonable satisfaction of the Company,
prior to the Company taking any final action to cancel or terminate
the severance benefit granted hereunder.
23. Should any term, section, or portion of the Agreement be held
unreasonable or unenforceable by any court, the decision of the court
will apply only to the specific term, section, or portion involved,
and it will not invalidate the remaining sections or portions of the
Agreement.
24. Until Employee signs the Agreement and returns it to the Company,
Employee will not receive the consideration named in ss.1 above. If
Employee chooses not to fully execute the Agreement, he will not
receive any part of the consideration in ss.1 and the Agreement will
be null and void.
25. THIS AGREEMENT HAS BEEN DELIVERED TO YOU IN PERSON ON JULY 20, 1998.
PLEASE REVIEW THIS AGREEMENT CAREFULLY WITH THE PERSON OF YOUR CHOICE,
INCLUDING AN ATTORNEY, BEFORE SIGNING IT. YOU WILL HAVE AT LEAST
TWENTY ONE (21) DAYS, OR UNTIL AUGUST 11, 1998 TO CONSIDER THIS
AGREEMENT. YOU ACKNOWLEDGE THAT IN SIGNING THIS AGREEMENT, HOWEVER,
YOU HAVE RELIED ONLY ON THE PROMISE(S) WRITTEN IN THIS AGREEMENT AND
NOT ON ANY OTHER PROMISE MADE BY THE COMPANY.
26. EMPLOYEE AFFIRMS THAT THE COMPANY HAS ADVISED HIM IN WRITING OF HIS
RIGHT TO CONSULT WITH AN ATTORNEY BEFORE SIGNING THE AGREEMENT AND HAS
ENCOURAGED HIM TO DO SO. EMPLOYEE ALSO ACKNOWLEDGES AND AGREES THAT HE
HAS READ AND FULLY UNDERSTANDS THE MEANING AND INTENT OF ALL OF THE
PROVISIONS AND TERMS OF THE AGREEMENT, INCLUDING THE FINAL BINDING
EFFECT OF THE WAIVER AND RELEASE OF RIGHTS UNDER THE AGREEMENT.
27. Employee also understands that after he has signed this Agreement, he
will still have seven (7) days to revoke this Agreement. If he wishes
to revoke this Agreement, he must submit a written revocation to the
Company representative no later than seven (7) days after he executes
this Agreement.
28. The Agreement shall be effective only if signed by the Employee before
5:00 p.m. EST on Tuesday, August 11, 1998.
IN WITNESS WHEREOF, the aforesaid parties intending to be legally bound have
executed the Agreement.
For Employee: For the Company:
/s/ Xxxxxx X. Xxxxx /s/ B.R. Xxxxxxx
------------------------- --------------------------------
Xxxxxx X. Xxxxx B.R. "Xxxxxx" Xxxxxxx,
Chairman/CEO
Exigent International, Inc.
Date: 8/11/98 Date: 8/11/98
