Exhibit 10.12
As of May 18, 2001
Xx. Xxxxxxx X. Xxxxxx, III
000 Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Re: Separation Agreement
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Dear Uly:
This letter shall constitute a separation agreement (this
"Agreement"), by and between Answerthink, Inc., a Florida corporation
("Answerthink"), and you with respect to the termination of your employment with
Answerthink and the other matters set forth herein. In consideration of the
mutual promises contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, Answerthink and you
(sometimes hereafter referred to collectively as the "Parties") hereby agree as
follows:
1. Termination Without Cause.
(a) Effective at the close of business on September May 18, 2001
(the "Effective Date"), your employment with Answerthink shall
be deemed to have been terminated without cause, and you agree
that you will have no right to nor will you have any
expectation of further employment with Answerthink or any of
its affiliates after the Effective Date. You represent and
warrant that after the Effective Date you will not take any
action to legally bind or obligate Answerthink.
(b) You further agree that once all of the payments referred
to in Section 2 of this Agreement have been made you shall
have been paid all amounts in the nature compensation of
any kind due and owing to you, whether pursuant to that
certain Senior Management Agreement dated as of April 23,
1997 by and between you and Answerthink (the "Senior
Management Agreement"), or that certain Employment Agreement
dated as of June 2, 1998 by and between you and Answerthink
(the "Employment Agreement") which amended and restated the
employment related provisions of the Senior Management
Agreement, or otherwise, including all wages, salary,
commissions, bonuses, incentive payments, profit sharing
payments, expense reimbursements, leave, severance pay, stock
options or other securities or other benefits, in respect of
your employment services for and on behalf of Answerthink. You
further agree that the payments
referred to in Section 2 of this Agreement, in addition to
compensating you fully for all services rendered by you to
Answerthink and its affiliates to date, include consideration
for your promises contained in this Agreement.
(c) Following the Effective Date, Answerthink will cooperate with
you regarding COBRA and your 401-K account so that you will be
able to avail yourself of the full benefits to which you are
entitled under applicable law.
2. Payment.
(a) Answerthink agrees that on or before the next scheduled
payroll payment date following the Effective Date it will pay
you (less appropriate income and employment tax withholdings),
to the extent not previously paid to you, any unpaid salary
for your employment services by and on behalf of Answerthink
through the Effective Date. In addition, Answerthink shall
reimburse you for any business expenses incurred by you during
your employment with Answerthink that has not yet been
reimbursed to you.
(b) Answerthink agrees that, unless you have violated the terms of
this Agreement or the Employment Agreement, Answerthink will
pay you THREE HUNDRED SEVEN THOUSAND SIX HUNDRED NINETY TWO
AND 32/100 DOLLARS ($307,692.32USD) (less appropriate income
and employment tax withholding) in sixteen semi-monthly
installments in the amount of NINETEEN THOUSAND TWO HUNDRED
THIRTY AND 77/100 DOLLARS ($19,230.77USD) (less appropriate
income and employment tax withholding) in accordance with the
regular Answerthink payroll cycle. Subject to the terms of
this Agreement, Answerthink will commence payment of such
installments on the first Answerthink regular payroll date
following the Effective Date. In the event of your death prior
to the final installment of such payments, any remaining
payments will be made to your estate. You hereby agree to
waive any right that you may have to any additional severance
payments contained in Section 9 of the Employment Agreement or
otherwise.
3. Non-Disclosure of This Agreement. Each of the Parties hereto, for the
benefit of the other Party hereto, hereby agrees that from and after
the date of such Party's execution and delivery of this Agreement, each
such Party will not, directly or indirectly, provide to any person or
entity any information that concerns or relates to the negotiation of
or circumstances leading to the execution of this Agreement or to the
terms and conditions hereof, except to (i) the extent that such
disclosure is specifically required by applicable law or legal process;
(ii) such Party's tax advisors as may be necessary for the preparation
of tax returns or other similar reports required by law, (iii) such
Party's attorneys as may be necessary to secure advice concerning the
interpretation of this Agreement or to this Agreement in connection
with the enforcement of; or (iv) members of your immediate family. Each
Party agrees that prior to disclosing such information under parts
(ii), (iii) or (iv) of this Section 3, such Party will inform the
recipients that they are bound by the
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limitations of this Section 3 and such disclosure will only be
permitted if the recipient agrees to be bound by such limitations. Each
Party further agrees that any disclosure of such information by any
such recipients not in accordance with this Section 3 shall be deemed
to be a disclosure by the disclosing Party in breach of this Agreement.
Answerthink agrees not to provide to any third party (which term, for
purposes hereof, shall not include Answerthink and its affiliates and
their respective officers, directors, employees, securityholders and
professional advisors) the terms of this Agreement or any information
that concerns or relates to the negotiation of or circumstances leading
to the execution of this Agreement unless Answerthink determines in
good faith that it is specifically required to do so by applicable law
or legal process.
4. Confidential Information; Noncompetition and Nonsolicitation. You agree
that Sections 7 and 10 of the Employment Agreement relating to
confidential information, noncompetition and nonsolicitation continue
in full force and effect in accordance with the terms thereof and are
not modified by the terms of this Agreement.
5. Return of Information. You further agree to cooperate fully with
Answerthink in returning to Answerthink the originals and all copies of
all files, materials, documents or other property relating to the
business and affairs of Answerthink and its affiliates. You may retain
only personal correspondence relating to the duties and
responsibilities of your employment.
6. No Adverse Comment. You agree to coordinate with Answerthink's Chief
Executive Officer any requests for employment references from
Answerthink which in all cases will be limited to employment dates and
titles held. Each Party hereto agrees that such Party will not make any
disparaging statements, whether written, oral or electronically
transmitted regarding the other Party and its affiliates and in the
case of Answerthink its business and affairs, employees, agents,
officers, directors and securityholders.
7. Breach or Violation. Each party agrees that in the event of a violation
of the provisions of this Agreement by such Party, in addition to any
damages allowed by law, the other Party hereto shall be entitled to
injunctive relief. In the event of a judicial determination that any
restriction contained in this Agreement is unreasonable, you and
Answerthink agree that the court may modify such restriction to make it
reasonable or eliminate such restriction prior to granting any
injunctive relief.
8. Certain Additional Representations. Each of the Parties represents and
warrants to the other Party that in executing this Agreement such party
does not rely and has not relied upon any representation or statement
made by the other Party or the Party's agents, representatives or
attorneys with regard to the subject matter, basis or effect of this
Agreement or otherwise.
9. Other Agreements.
(a) Reference is made to that certain Restricted Securities
Agreement dated as of April 23, 1997, among you, Golder,
Thoma, Xxxxxxx, Xxxxxx Fund V, L.P., a Delaware Limited
Partnership ("GTCR V"), Gator Associates, Ltd., A Florida
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limited partnership, MG Capital Partners II, L.P., a Delaware
limited partnership, and Xxxx Ventures, Ltd., a British Virgin
Islands corporation (the "Restricted Securities Agreement").
Answerthink hereby acknowledges and confirms that all shares
of Answerthink common stock covered by the Restricted
Securities Agreement and all shares of Answerthink common
stock covered by sections 1 through 6 of the Senior Management
Agreement are fully vested.
(b) You further agree and acknowledge that, other than those
grants noted below, no stock options have been granted to you
as of the Effective Date, and that you claim no right to any
option to purchase Answerthink stock, common or preferred,
from Answerthink.
Grant Date Number of Options
---------- -----------------
March 31, 1999 5,000
January 31, 2000 10,000
Remainder of page intentionally left blank.
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10. Releases.
(a) In consideration of the consideration paid to you hereunder,
you hereby release Answerthink, its predecessors, successors
present and former affiliates, subsidiaries, parents, related
entities, officers, directors, members, managers, assigns,
insurers, representatives, employees, agents, attorneys, and
each of them, from any and all claims, demands, charges,
complaints, liabilities, obligations, indemnities, promises,
agreements, contracts, covenants, controversies, damages,
actions, causes of action, suits, rights, demands, costs,
losses, liens, debts and expenses, of whatever kind or nature
in law, equity or otherwise, which you now possess, have
possessed, or may in the future possess, against any of them,
or to which you are or claim to be entitled, whether known or
unknown, suspected or unsuspected, committed or omitted prior
to the date of this Agreement arising from, or relating to,
your employment with Answerthink, the termination of your
employment with Answerthink, the Restricted Securities
Agreement, the Employment Agreement and any matters related
thereto or any other transactions, occurrences, acts or
omissions or any loss, damages or injury whatsoever, known or
unknown, suspected or unsuspected, resulting from any act or
omission by or on the part of any of the releasees ("Xxxxxx
Released Claims"). The Xxxxxx Released Claims include, but are
not limited to, any action arising out of any foreign,
federal, state or local constitution, statute, ordinance,
regulation, or common law, including, but not limited to,
those arising under the Age Discrimination In Employment Act,
as amended, Title VII of the Civil Rights Act of 1964, as
amended, The Equal Pay Act, The Americans With Disabilities
Act, The Family and Medical Leave Act, The Employee Retirement
Income Security Act, the Worker Adjustment and Retraining
Notification Act, and the provisions of any other laws
regulating wages, hours and working conditions, any other
foreign, federal, state or local laws prohibiting employment
discrimination or otherwise regulating employment, any claim
or claims for discrimination, failure to prevent
discrimination, retaliation, failure to prevent retaliation,
harassment, failure to prevent harassment, assault, battery,
misrepresentation, fraud, deceit, invasion of privacy, breach
of contract, breach of collective bargaining agreement, breach
of quasi-contract, breach of implied contract, an accounting,
wrongful or constructive discharge, breach of the covenant of
good faith and fair dealing, libel, slander, negligent or
intentional infliction of emotional distress, violation of
public policy, negligent supervision, negligent retention,
negligence, interference with business opportunity or with
contracts, and any claim or claims for severance pay, bonus or
similar benefit, sick leave, pension, retirement, retirement
bonus, holiday pay, life insurance, health or medical
insurance, reimbursement of health or medical costs, worker's
compensation or disability. However, this release does not
cover any obligations by Answerthink to make payments to you
hereunder.
(b) In consideration of this Agreement and other good and valuable
consideration, the receipt and adequacy of which are hereby
acknowledged, Answerthink, for itself and on behalf of its
subsidiaries and affiliates, hereby releases you, your
successors, assigns, insurers, representatives, employees,
agents, attorneys, heirs,
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administrators, executors, and each of them, from any and all
claims, demands, charges, complaints, liabilities,
obligations, indemnities, promises, agreements, contracts,
covenants, controversies, damages, actions, causes of action,
suits, rights, demands, costs, losses, liens, debts and
expenses, of whatever kind or nature in law, equity or
otherwise, which it now possesses, has possessed, or may in
the future possess, against any of them, or to which it is or
claims to be entitled, whether known or unknown, suspected or
unsuspected, committed or omitted prior to the date of this
Agreement arising from, or relating to, your employment by
Answerthink, the termination of your employment with
Answerthink, the Restricted Securities Agreement, the
Employment Agreement and any matters related thereto, or any
other transactions, occurrences, acts or omissions or any
loss, damages or injury whatsoever, known or unknown,
suspected or unsuspected, resulting from any act or omission
by or on the part of any of the releasees (the "Answerthink
Released Claims"). The Answerthink Released Claims include,
but are not limited to, any action arising out of any foreign,
federal, state or local constitution, statute, ordinance,
regulation, or common law, including, but not limited to
claims of misrepresentation, fraud, deceit, breach of
contract, breach of quasi-contract, breach of implied
contract, breach of the covenant of good faith and fair
dealing, negligence, interference with business opportunity or
with contracts, and inducing breach of contract. However, this
release does not cover your obligations to comply with
sections 7 and 10 of the Employment Agreement.
(c) Each of you and Answerthink recognizes that, except as limited
herein, this is a full and final release of any and all claims
which they, their heirs, successors and assigns have made, or
could have made, against one another, arising from the
Answerthink Released Claims and the Xxxxxx Released Claims, as
applicable.
(d) You warrant to Answerthink that you have not assigned or
transferred any of the Xxxxxx Released Claims. Answerthink
represents and warrants to you that it has not assigned or
transferred any of the Answerthink Related Claims.
(e) You acknowledge and understand that you have twenty-one (21)
days after the foregoing date within which to consider this
Agreement, including the Xxxxxx Released Claims, before
signing it. You understand that you have been given the
opportunity to and you have in fact consulted with legal
counsel of your own choosing and that if you sign this
Agreement prior to the twenty-first day, you do so on a purely
voluntary basis.
(f) You further understand that for a period of seven (7) days
after you sign this Agreement, which includes this the Xxxxxx
Released Claims, that you may revoke or cancel it by written
notification to Answerthink and by returning any sums paid to
you under this Agreement, and that this Agreement, including
the Release of Claims in this Section 10, will not become
effective or enforceable until that seven-day period has
passed.
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11. Entire Agreement. This Agreement contains the entire understanding and
agreement the Parties relating to the subject matter of this Agreement
and it supersedes any and all prior and/or contemporaneous
understandings and agreements with respect to such subject matter, all
of which are merged herein. This Agreement may not be altered or
amended except by an instrument in writing signed by both of the
Parties hereto.
12. No Admission. The Parties agree that nothing contained in this
Agreement shall constitute or be treated as an admission or
acknowledgment of any liability or wrongdoing by either Party to the
other Party hereto and such Party's affiliates.
13. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Florida, without regard to
its conflicts or choice of law principles. The Parties agree that the
exclusive venue for the resolution of any disputes arising out of or
relating to the Agreement shall be the state courts of the State of
Florida and the federal courts of the United States of America located
in Miami-Dade County, Florida, and each of the Parties hereby consents
to the jurisdiction of said courts with respect to any such disputes.
The Parties further acknowledge that they have each participated in the
preparation of this Agreement with legal counsel chosen by such Party
and that this Agreement shall be construed and interpreted without any
presumption against either Party.
14. Waiver. Neither the waiver by either party of a breach of or default
under any of the provisions of this Agreement, nor the failure of such
Party, on one or more occasions, to enforce any of the provisions of
this Agreement or to exercise any right or privilege hereunder shall
thereafter be construed as a waiver of any subsequent breach or default
of a similar nature, or as a wavier of any provisions, rights or
privileges hereunder. A waiver of any provision of this Agreement shall
only be effective if evidenced by a written instrument signed by the
Party granting any such waiver.
15. Further Assurances. The Parties agree to take or cause to be taken
such further actions as may be necessary or as may be reasonably
requested by the other Party hereto in writing in order to fully
effectuate the purposes, terms, and conditions of this Agreement.
16. Assignment. This Agreement and the rights and obligations of the
Parties hereunder may not be assigned by either Party without the prior
written consent of the other Party, except that the assignment of this
Agreement by Answerthink to any corporation which acquires a
controlling interest in Answerthink common stock or all or
substantially all of the assets of Answerthink pursuant to a sale of
Answerthink's business shall constitute a permitted assignment of this
Agreement. This Agreement shall be binding upon and inure to the
benefit of the Parties and their respective representatives, successors
and permitted assigns.
17. Notice. All notices, demands, requests, or other communications which
may be or are required to be given, served or sent by either Party to
other Party pursuant to this Agreement or in any way relating to this
Agreement shall be in writing and shall be effective delivery if
hand-delivered; or if mailed by first class, registered, or certified
mail (return receipt requested, postage prepaid) four (4) business day
after being so
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mailed to such Party at the address set forth on the first page hereof.
Either Party may designate by notice in writing a new address to which
any notice, demand, request, or communication may thereafter be so
given, served, or sent.
18. Voluntary Agreement. You acknowledge that you have carefully read and
fully understand this Agreement and execute it voluntarily and without
coercion.
Please signify your acceptance of and agreement to the terms
and provisions contained herein by executing this Agreement in the space
provided below and returning a signed original copy to Answerthink.
ANSWERTHINK, INC.
By: /s/ Xxx X. Xxxxxxxxx
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Name:
Title: Chief Executive Officer
Date: May 18, 2001
--------------------------
/s/ Witness
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Witness
Accepted and agreed to:
/s/ Xxxxxxx X. Xxxxxx, III
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Xxxxxxx X. Xxxxxx, III
Date: May 18, 2001
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/s/ Witness
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Witness
By signing, Xx. Xxxxxx hereby expressly waives the 21-day review period provided
for in Section 10(e).
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