Exhibit 10.58
SEPARATION AGREEMENT
This Separation Agreement ("Agreement") is made and entered into as of
March 27, 2000, by and between Paravant Inc., a Florida corporation (the
"Company") and Xxxxx X. Xxxxxxxx ("Xxxxxxxx").
Background
Xxxxxxxx is currently employed by the Company as its Vice President, Chief
Financial Officer and Treasurer pursuant to an Employment Agreement dated
January 1, 1999 (the "Employment Agreement"). The Company and Xxxxxxxx wish
to terminate the Employment Agreement and to mutually, amicably and finally
settle all matters relating to Xxxxxxxx'x employment with and separation
from the Company. In consideration of the mutual promises contained herein
and for other good valuable consideration, the receipt, adequacy and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
Terms
1. Termination of Employment. Xxxxxxxx and the Company hereby
agree to terminate Xxxxxxxx'x employment with the Company pursuant to the
Employment Agreement by mutual agreement, effective as of June 30, 2000
(the "Last Day Worked"); provided, however, that Xxxxxxxx may elect under
this Agreement to terminate his employment with the Company pursuant to the
Employment Agreement prior to June 30, 2000 to begin employment with
another business entity (an "Early Termination"), in which case Xxxxxxxx'x
"Last Day Worked" hereunder shall be his final working day with the Company
prior to his departure for employment with the other business entity.
Except as provided in this Agreement, from the date of this Agreement
through the Last Day Worked, Xxxxxxxx shall continue to receive his current
compensation and benefits from the Company pursuant to the Employment
Agreement. Except as provided in this Agreement, from and after the Last
Day Worked, Xxxxxxxx shall not be entitled to receive any further
compensation or benefits from the Company pursuant to the Employment
Agreement or otherwise.
2. Duties. From the date of this Agreement through the Last Day
Worked, Xxxxxxxx shall continue to devote his full business time and
attention to the performance of his duties as set forth in Section 3 of the
Employment Agreement; provided, however, that the Company agrees that
Xxxxxxxx may use reasonable amounts of time to pursue and interview for
other employment so long as such efforts do not interfere with his duties
under Section 3 of the Employment Agreement.
3. Severance Payments.
3.1 For a period of 6 months following Xxxxxxxx'x Last Day
Worked, the Company shall make severance payments to Xxxxxxxx in the form
of continuation of his annual base salary of $121,000 in effect on the Last
Day Worked in regular installments in accordance with the Company's usual
payroll practices.
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3.2 Upon the Company's first regular payroll date following the
end of the 6-month period set forth in Section 3.1 above, the Company shall
make a lump sum payment to Xxxxxxxx equal to one-half of his annual base
salary of $121,000 in effect on the Last Day Worked.
3.3 Notwithstanding the foregoing, in the event of an Early
Termination under Section 1 above, in lieu of the payments referred to in
Sections 3.1 and 3.2 above, the Company shall make a lump sum payment to
Xxxxxxxx equal to his annual base salary of $121,000 in effect on the Last
Day Worked upon the Company's first regular payroll date following his Last
Day Worked.
4. Health Insurance. Xxxxxxxx will be provided with separate
notice of his COBRA rights. In the event Xxxxxxxx elects health care
continuation coverage under COBRA, the Company will pay his COBRA insurance
premiums (except that Xxxxxxxx will continue to pay any applicable employee
share of these premiums as if he were an active employee) until the earlier
of (i) 6 months after the Last Day Worked or (ii) the date upon which
Xxxxxxxx has become employed by another business entity and becomes
eligible for coverage by a health insurance plan providing substantially
similar coverage. Thereafter, Xxxxxxxx shall be solely responsible for the
payment of any COBRA premiums.
5. Severance Period Benefits. Provided that there has not been
an Early Termination under Section 1 above, for a period of 6 months
following Xxxxxxxx'x Last Day Worked, the Company shall provide the
following benefits to Xxxxxxxx:
5.1 The Company shall pay for Xxxxxxxx'x cell phone charges in
accordance with his AT&T Digital One Rate Plan (not to exceed $120 per
month).
5.2 The Company shall pay Xxxxxxxx'x Eau Gallie Yacht Club
expenses (not to exceed $250 per month) in addition to any applicable
monthly or annual dues.
5.3 Xxxxxxxx shall be entitled to retain his voice mail box at
the Company and shall have reasonable access to temporary administrative
assistance (including fax and typing service), such assistance to be
coordinated through the Company's Director of Human Resources.
6. Other Agreements.
6.1 Following his Last Day Worked, Xxxxxxxx shall be entitled to
retain his Sony laptop computer and its accessories (and Xxxxxxxx shall be
responsible for any related tax liability).
6.2 Xxxxxxxx shall continue to have the use of the automobile
leased for him by the Company for 30 days following his Last Day Worked,
and the Company shall pay all taxes, insurance and lease payments during
such period. Xxxxxxxx shall return the leased automobile to the Company
immediately following the end of such 30 day period.
6.3 Notwithstanding the provisions of Section 2.01 of the
Non-Qualified Designated Employee Deferred Compensation Plan and Agreement
dated December 15, 1998 (the "Plan") requiring that Xxxxxxxx continue
employment for three years from the date of the Plan, Xxxxxxxx will be
deemed to have earned all benefits that have accrued under the Plan as of
the Last Day Worked. In addition, at the time of any payment made to
Xxxxxxxx pursuant to Section 3 of this Agreement, the Company also shall
credit to Xxxxxxxx under the Plan an amount equal to 20% of such payment,
which amount shall be treated as additional deferred compensation earned
under the Plan (the "Severance Deferred Compensation"). Such accrued
benefits under the Plan (including the Severance Deferred
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Compensation), and all earnings through the date of payment provided in
accordance with Section 1.02 of the Plan (which together shall be referred
to as the "Deferred Compensation"), shall be paid in a single lump sum (net
of any withholding taxes) on the first anniversary of the Last Day Worked,
provided that Xxxxxxxx has not violated Article XV of the Plan during such
one-year period. Until such time as the foregoing Deferred Compensation is
paid to Xxxxxxxx, all terms and conditions of the Plan shall remain in
effect except as specifically modified herein, and Xxxxxxxx shall remain a
general unsecured creditor of the Company subject to the forfeiture
provisions of Section 2.01 and Article XV of the Plan.
6.4 Xxxxxxxx shall continue to accrue vacation during the period
commencing on the date of this Agreement and ending on his Last Day Worked
in accordance with the Company's prevailing policy for its operating
executives and may use all such accrued vacation (in addition to any
previously accrued vacation) prior to his Last Day Worked.
7. Stock Options. Xxxxxxxx and the Company acknowledge that
Xxxxxxxx previously has been granted options to purchase shares of Company
common stock as set forth on Exhibit A to this Agreement (the "Options").
Xxxxxxxx and the Company agree that, notwithstanding the terms of the
Options and their related agreements, all unvested Options shall become
fully vested and immediately exercisable on the Last Day Worked. Xxxxxxxx
shall have 30 days following the Last Day Worked to exercise any such
Options, and such Options will terminate if not exercised; provided,
however, that if the Company's Incentive Stock Option Plan is amended prior
to the Last Day Worked to permit a longer period for exercise following
termination of employment, Xxxxxxxx shall have such longer period to
exercise such Options. Xxxxxxxx may, at his sole election with respect to
any of the Options, engage in a cashless exercise of his Options under
Section 5(C) of the Incentive Stock Option Plan through the delivery of
shares of common stock with a fair market value at the time of exercise of
the Options equal to the aggregate exercise price of the Options; provided,
however, that the foregoing shall not obligate Xxxxxxxx to engage in a
cashless (or other) exercise of any of his Options.
8. Taxes. Xxxxxxxx shall be solely responsible for paying any
taxes on amounts he receives pursuant to this Agreement. Xxxxxxxx agrees
that the Company will withhold all taxes it determines it is legally
required to withhold.
9. Certain Indemnity. Following Xxxxxxxx'x Last Day Worked, the
Company will indemnify and defend Xxxxxxxx in the same manner and to the
same degree as if he was an employee, executive, officer and director of
the Company, for all litigation or other actions brought against Xxxxxxxx
originating as a result of association of Xxxxxxxx with the Company,
including but not limited to all claims, liability, damage, loss, expense,
attorneys' fees, court costs, judgments, settlements, and fines.
10. Survival of Certain Provisions of Employment Agreement.
Notwithstanding any other provision of this Agreement, Sections 11, 12 and
13 of the Employment Agreement shall remain in full force and effect and
continue to be binding upon the parties; provided, however, that for the
purposes of Section 11 of the Employment Agreement, the one year period
shall commence on January 1, 2001.
11. Nondisclosure. Xxxxxxxx shall keep the terms and existence
of this Agreement completely and strictly confidential, and shall not
disclose any information concerning this Agreement to any person other than
his attorneys and accountants or as required by law. Xxxxxxxx recognizes
that the Company may be obligated to disclose this Agreement and the terms
and conditions hereof in any securities offering documents and periodic
reports the Company may become required to file under U.S. federal
securities laws.
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12. Mutual Release. In consideration of the mutual promises
contained herein, and except as specifically agreed in this Agreement, the
Company hereby releases and forever discharges Xxxxxxxx, and Xxxxxxxx
hereby releases and forever discharges the Company, its affiliates and each
of their respective directors, officers, employees, agents, representatives
and attorneys, from any and all claims, demands or liabilities whatsoever
in connection with or arising from Xxxxxxxx'x employment with the Company
or the termination of that employment, including but not limited to: any
and all claims for breach of contract, express or implied; any form of
compensation or benefits; wrongful termination; constructive discharge;
discrimination of any type (including but not limited to any form of age
discrimination under the Age Discrimination in Employment Act); any tort of
any nature; and any and all client claims arising under any federal, state
or local statute, law, ordinance or regulation.
13. Dispute Resolution. If a legally cognizable dispute arises
out of or relates to this Agreement or the breach, termination or validity
thereof, or the compensation, promotion, demotion, discipline, discharge or
terms and conditions of employment of Xxxxxxxx, and if said dispute cannot
be resolved through direct discussions, the parties agree to try in good
faith to settle the dispute by mediation administered by the American
Arbitration Association under its National Rules for the Resolution of
Employment Disputes. If the parties cannot settle the dispute by mediation,
the parties agree to settle the dispute by binding arbitration in
accordance with the National Rules for the Resolution of Employment
Disputes of the American Arbitration Association. Judgment upon the award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof, except that disputes involving or concerning the provisions of
Sections 11, 12 and 13 of the Employment Agreement, may, at the Company's
discretion, be settled by any court having jurisdiction thereof or decided
by mediation/arbitration pursuant to this section. Disputes subject to
binding arbitration pursuant to this section include all tort and contract
claims as well as claims brought under all applicable federal, state or
local statutes, laws, regulations or ordinances. Each party shall pay for
its own fees and expenses of mediation and arbitration.
14. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the law of the State of Florida.
15. Severability. If any provision or part of any provision of
this Agreement shall not be valid for any reason, such provision shall be
entirely severable from, and shall have no effect upon, the remainder of
this Agreement.
16. The Company's Assignees and Successors. The Company may
assign this Agreement to its successors and assigns and any such successors
and assigns shall be entitled to all of the Company's rights hereunder.
17. Entire Agreement. This Agreement constitutes the sole and
entire Agreement between the Company and Xxxxxxxx. All prior contracts,
agreements, or promises of any kind relating to the employment relationship
of the parties are hereby canceled and discharged and have no further
effect whatsoever. Except as specifically provided herein, this Agreement
can be modified only by a written agreement duly executed by the parties
hereto.
18. Plain Meaning. This Agreement shall be interpreted in
accordance with the plain meaning of its terms and not for or against the
drafter.
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19. Voluntary Nature of Agreement. The parties hereto are
entering into this Agreement voluntarily without duress on the part of
either party. Xxxxxxxx has been advised to, and has had an opportunity to,
consult with an attorney before signing this Agreement. Xxxxxxxx has also
been advised that he may take up to twenty-one (21) days to consider this
Agreement before signing it and that he may revoke this Agreement within
seven (7) days after signing it. Should Xxxxxxxx revoke this Agreement
within seven (7) days after signing it, this Agreement shall become null
and void.
20. Nondisparagement. Xxxxxxxx agrees that he will not at any
time intentionally disparage the Company in any manner or the personal or
business reputation of any of its directors or officers, and the Company
agrees that neither it nor its officers or directors will at any time
intentionally disparage Xxxxxxxx or his personal or business reputation;
provided, however, that each party shall testify truthfully under oath
pursuant to a subpoena, court order or other valid legal process.
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IN WITNESS WHEREOF, the parties have voluntarily and with
knowledge of their rights executed this Agreement as of the date first
written above.
XXXXXXXX:
/s/ Xxxxx X. Xxxxxxxx
----------------------------
Xxxxx X. Xxxxxxxx
COMPANY:
Paravant Inc.
By /s/ Xxxxxxx X. Xxxxxx
--------------------------
Xxxxxxx X. Xxxxxx
President and Chief Operating Officer
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Exhibit A
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Options
Grant Date Type of Option Number of Shares Exercise Price
---------- -------------- ---------------- --------------
3/2/1995 Incentive Stock Option 30,000 $0.7170
11/16/95 Incentive Stock Option 15,000 $1.3330
11/29/96 Incentive Stock Option 15,000 $5.1250
11/20/97 Incentive Stock Option 30,000 $4.2500
11/19/98 Incentive Stock Option 50,000 $1.9380
12/03/99 Incentive Stock Option 25,000 $2.6250
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Total: 165,000
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