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XXXXXX V. AMERICAN BANK
CONFIDENTIAL SETTLEMENT AGREEMENT
This Confidential Settlement Agreement, hereinafter referred to as "the
Agreement," is made by and between XXXXX X. XXXXXX, hereinafter referred to as
"Xxxxxx," on the one hand, and AMERICAN BANK, hereinafter referred to as "the
Bank," on the other hand.
WHEREAS, Xxxxxx was formerly employed by the Bank in various management
positions; and
WHEREAS, in October, 1995, Xxxxxx suffered a stroke, and he alleges
that after this stroke, the Bank discriminated against him because it wrongly
regarded him as disabled from work; and
WHEREAS, Xxxxxx retained counsel to assist him in matters relating to
his desire to return to work at the Bank, and alleged disability discrimination
against him, and he further alleges that the Bank retaliated against him because
of his retention of counsel;
WHEREAS, Xxxxxx'x employment with the Bank was involuntarily terminated
on or about July 9, 1996; and
WHEREAS, following his discharge, Xxxxxx filed charges with the Equal
Employment Opportunity Commission alleging disability discrimination and
unlawful retaliation against the Bank under the Americans with Disabilities Act
("ADA"); and
WHEREAS, Xxxxxx filed a lawsuit against the Bank in the United States
District Court for the Middle District of Florida, Tampa Division, Case No.
96-671-CIV-T-24A, hereinafter referred to as Case No. 96-671-CIV-T-24A; and
WHEREAS, the parties conducted a mediation on April 22, 1998, in Tampa,
Florida, with Xxxx Xxxxxxxxxx, Esquire, serving as mediator, and at that
mediation entered into a settlement agreement relating to all of Xxxxxx'x claims
and potential claims, and signing, as evidence of this settlement agreement, a
handwritten term sheet for the settlement, with the understanding that more
formal settlement documents would be prepared at a later date; and
ACCORDINGLY, this Agreement will settle and compromise all of Xxxxxx'x
claims, including those alleged in Case No. 96-671-CIV-T-24A, as well as any
claims that the Bank might have against Xxxxxx;
NOW, KNOW ALL BY THESE PRESENTS, that in consideration of the mutual
covenants to be performed by each of the parties hereto, the parties expressly,
knowingly, and voluntarily agree as follows:
1. Bank's Retention of X. X. Xxxxxx Consulting, Inc. as Consultant. The
Bank agrees to retain Xxxxx X. Xxxxxx Consulting, Inc. as a consultant for the
Bank through December 31, 2000. The terms of this consulting arrangement shall
be set forth in a separate agreement between Xxxxx X. Xxxxxx Consulting, Inc.
and the Bank (this agreement shall hereinafter be referred to as "the Consulting
Agreement"). If for any reason the Consulting Agreement is terminated by the
Bank prior to January 10, 2000, payments to be made under the Consulting
Agreement will be made pursuant to this Agreement.
2. Payment of Xxxxxx'x Attorneys' Fees and Legal Costs. The Bank agrees
to pay Xxxxxx'x attorneys in Case No. 96-671-CIV-T-24A the sum of TWO HUNDRED
AND TWENTY FIVE THOUSAND U.S. DOLLARS ($225,000.00) for their work in
representing Xxxxxx in his litigation against the Bank, and for legal costs and
expenses incurred during the course of their representation. Payment shall be by
Bank check(s) payable to Xxxx, Band, Russell, Collier, Xxxxxxxxx & Xxxxxx,
Chartered. This payment shall be made within thirty (30) days of the date the
four duplicate originals of this Agreement, signed by Xxxxxx, his counsel, his
wife, and his adult children, and the two duplicate originals of the Consulting
Agreement, signed by Xxxxxx, are all delivered to the offices of the Bank's
counsel for execution of the Agreement by the Bank signatories. If payment is
not made within thirty days as agreed, interest shall be due on the unpaid
balance at a rate of eighteen percent (18%) per year. If there is a collection
action, the prevailing party in such suit shall be entitled to an award of a
reasonable attorney's fee and costs of action.
3. Dismissal of Case No. 97-671-CIV-T-24A With Prejudice. Because the
Mediator filed a mediation report following the mediation on April 22, 1998, the
United States District Court for the Middle District of Florida, Tampa Division,
has already entered an Order, dated April 29, 1998, dismissing the lawsuit
without prejudice to the right of any party to re-open the action within sixty
(60) days, for good cause. That Order provided that the parties could also
submit a stipulated form of final judgment. The parties agree that the Court's
record should be clear that Case No. 97-671-CIV-T-24A has been dismissed with
prejudice, since that is in fact their intent and agreement, and accordingly
their counsel are directed, through execution of this Agreement by the parties,
to file such papers as may be required to record the dismissal of Case No.
97-671-CIV-T-24A with prejudice, including but not limited to the Stipulation of
Dismissal with Prejudice attached as Exhibit "A" to this Agreement. It is
expressly agreed and understood that this Agreement is conditioned upon and made
subject to the dismissal of Case No. 97-671-CIV-T-24A with prejudice. If for any
reason the dismissal with prejudice of that action is not consummated, or is
subsequently vacated, then the Bank shall have the sole discretion to deem this
Agreement and the Consulting Agreement null and void ab initio, except for the
provisions of this paragraph, and if the Bank exercises that discretion Xxxxxx
and his counsel shall immediately return to the Bank all monies paid pursuant to
this Agreement, and pursuant to the Consulting Agreement.
4. Xxxxxx'x Wiaver of Future Employment. Xxxxxx waives any and all
rights to future employment with the Bank, and with any corporations affiliated
with or related to the Bank, specifically including American Bancshares, Inc.,
and Freedom Finance Company, that he has now, or might have in the future, known
and unknown. Xxxxxx agrees that he will not apply in the future for employment
with the Bank or with any of its related or affiliated corporations, and if he
does apply for re-employment in breach of this Agreement, the Bank, or the
affiliated or related corporation, as the case may be, shall be under no
obligation to process that application, but can simply advise him that his
application for employment is denied pursuant to this settlement.
5. Confidentiality Commitments. Except as permitted herein, Xxxxxx
agrees to keep strictly confidential, and promises not to disclose, either
directly or indirectly, to any legal or natural person, the terms and conditions
of the settlement between the parties, and the terms and conditions of this
Agreement and the Consulting Agreement. It will be permissible for Xxxxxx to
disclose the terms and conditions of the settlement, and of this Agreement, and
the Consulting Agreement, to his attorneys, his tax advisors, his wife, his
adult children (with the exception of Xxxxx Xxxxxx), the IRS, the United States
District Court for the Middle District of Florida, and if required to do so by
Court Order. Xxxxxx'x wife and adult children shall sign this Agreement as
evidence of their own promises to respect and adhere to this confidentiality
commitment of their husband and father. If Xxxxxx wishes to disclose this
Agreement to his tax advisors or bankers, he shall first obtain their agreement
to maintain the terms of the settlement in complete confidence. Provided,
however, that although Xxxxxx is obligated to keep the terms of this settlement
in confidence, he and his wife and his adult children may inform private
citizens, who make inquiry regarding resolution of his lawsuit against the Bank,
Case No. 97-671-CIV-T-24A, that it has been "settled," and that the terms of the
settlement are "confidential," without in any way revealing the terms of the
settlement. Similarly, Xxxxxx'x counsel may inform others that the case has been
settled. Neither Xxxxxx, nor his wife, children, counsel, tax advisors nor
bankers shall make any statement to media or press respresentatives regarding
either the fact or terms of the settlement or of this Agreement or of the
Consulting Agreement. Further provided, that in the event that an officer,
director or employee of the Bank makes a material misrepresentation to a third
party concerning the terms of the settlement, Xxxxxx shall be permitted to make
a corrective statement to that third party after his counsel first discloses the
misrepresentation to the Bank's counsel and after the parties engage in good
faith discussions relating to the misrepresentation, and in the event Xxxxxx is
dissatisfied with any resolution proposed by the Bank.
6. Xxxxxx'x General Release. In consideration of the promises made by
the Bank in this Agreement, Xxxxxx, on his own behalf, and on behalf of his
relatives and heirs, executors, administrators, assigns, and attorneys,
irrevocably and unconditionally releases, waives and forever discharges the
Bank, the President of the Bank, Xxxxxx X. Xxxxxxx, the members of the Board of
Directors of the Bank, the Bank's employees, insurance carriers, attorneys, and
consultants, including Xxxx Xxxxxxxx and any of Xxxxxxxx'x business entities,
and any of the Bank's affiliated or related corporations, including American
Bancshares, Inc. and Freedom Finance Company, and all legal and natural persons
acting by, through, under or in concert with any of them (hereinafter
collectively "the Bank releasees"), of and from any and all claims, actions,
causes of action, suits, debts, charges, complaints, liabilities, obligatons,
promises, agreements, controversies, damages, and expenses (including attorney's
fees and costs), of any nature whatsoever, known or unknown, in law or equity
that he ever had, or now has, including, without limitation of the foregoing
general release, (a) any claims against the Bank releasees arising from any
alleged violation of the ADA, the FMLA, the Florida Civil Rights Act, COBRA,
ERISA, Title VII of the Civil Rights Act of 1964, the Age Discrimination in
Employment Act, as well as any claims based on any other employment
discrimination laws, (b) any claim for any kind of insurance benefits under the
Bank's insurance policies, and (c) any claims against the Bank releasees based
on any other constitutional, statutory, common law, or regulatory grounds. This
release does not waive, release, or discharge any claim based on a future breach
of this Agreement or of the Consulting Agreement.
7. The Bank's General Release. In consideration of the promises made by
Xxxxxx in this Agreement, the Bank irrevocably and unconditionally releases,
waives and forever discharges Xxxxxx, his attorneys, and all legal or natural
persons acting by, through, under, or in concert with him, of and from any and
all claims, actions, causes of action, suits, debts, charges, complaints,
liabilities, obligations, promises, agreements, controversies, damages, and
expenses (including attorney's fees and costs), of any nature whatsoever, known
or unknown, in law or equity, that it ever had, or now has, including any claims
against Xxxxxx based on any constitutional, statutory, common law, or regulatory
grounds. This release does not waive, release, or discharge any claim based on a
future breach of this Agreement or of the Consulting Agreement.
8. Non-Admission. It is understood and agreed that the execution of
this Agreement, and the Consulting Agreement, by the Bank, does not constitute
an admission by the Bank that it has violated any law, statute, rule, regulation
or ordinance of the United States or of the State of Florida, or of any local
governmental entity, with respect to Xxxxxx or in any other matter. The Bank
expressly denies any liability; this settlement represents the compromise of
disputed claims.
9. Xxxxxx'x Understanding of this Agreement. Xxxxxx acknowledges that
he has been represented by counsel, Xxxxxxx Xxxxxx, Esq., and Xxxxxx Xxxxx,
Esq., throughout the period this settlment was negotiated, that he consulted
numerous times with his counsel about the advisability of settlement and the
terms of this settlement, that he has reviewed the terms of this settlement with
his counsel, and that his decision to enter into this settlement is based on the
advice of his counsel. Xxxxxx further acknowledges that he has read this
Agreement and understands it. He agrees that he has been given a reasonable
period of time within which to consider this Agreement, and the Consulting
Agreement, as well as to consider the terms of the settlement, and acknowledges
that he is executing the Agreement on a voluntary basis. Xxxxxx agrees that he
is aware that this Agreement releases all claims he may have, whether known or
unknown, against the Bank and the Bank releasees, as well as any future right of
re-employment with the Bank or with any corporations affiliated with or related
to the Bank. Xxxxxx and his attorneys, agree, represent and warrant that he has
the mental capacity to enter into this settlement, notwithstanding the effects
of his stroke in October, 1995.
10. Materiality of All Conditions and Obligations. The parties agree
that all of the conditions and obligations in this Agreement are material and
that the non-occurence or breach of any such condition or obligation by any
party is not allowed and shall result in the non-breaching party or parties
being entitled to assert any and all rights they may have in law or equity.
11. Arbitration. The parties agree that all disputes concerning alleged
breaches of the Agreement made by the parties shall be decided by arbitration in
accordance with the Rules of the American Arbitration Association, and with the
assistance of the American Arbitration Association. In such an arbitration, the
arbitrator shall be authorized to award any legal or equitable remedies
available at law. The prevailing party in an arbitration brought pursuant to
this Agreement shall be entitled to an award of a reasonable attorney's fee and
costs of action. Any arbitration award may be enforced in court as provided by
law.
11. Governing Law. This Agreement shall be governed in accordance with
the laws of the State of Florida to the extent that state law, rather than
federal common law, is applicable.
12. Execution. There shall be four duplicate originals of this
Agreement, one for each party, and one for the counsel for each party. The Bank
signatories will execute both the duplicate originals of the Agreement and the
duplicate originals of the Consulting Agreement promptly following delivery of
same to the offices of the Bank's counsel.
13. Other Agreements. The parties hereto agree that the this Agreement
and the Consulting Agreement are the only agreements between the parties, with
the exception of a handwritten term sheet drafted and signed after the
mediation, which this Agreement, and the Consulting Agreement, state in more
formal language, and that there are no other agreements, oral or written,
between them relating to any matters covered by this Agreement or the Consulting
Agreement, or relating to any other matter whatsoever.
FOR XXXXXX: FOR THE BANK:
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Xxxxx X. Xxxxxx, on behalf Xxxxxx X. Xxxxxxx, on behalf
of himself, his heirs, of American Bank and the
executors, administrators Bank releasees
and assigns
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Date Date
The following three signatories agree to the confidentiality commitments set
forth in paragraph 5 of this Agreement:
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Xxx. Xxxxx X. Xxxxxx Xxxxx X. Xxxxxx
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Date Date
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Xxxx X. Xxxxxxxx
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Date
ADDITIONAL SIGNATORIES
ADDITIONAL XXXXXX SIGNATORIES: ADDITIONAL BANK SIGNATORIES:
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Xxxxxxx Xxxxxx, Esq. Xxxx Xxxx
Plaintiff's Counsel Chairman of the Board
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Date Date
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Xxxxxx Xxxxx, Esq. Xxxx XxXxxxx, Esq.
Plaintiff's counsel Bank Counsel
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Date Date
