EXHIBIT 99.2
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT is entered into by and between Quipp, Inc. (the
"Company") and Xxxxxxx X. Xxxx (the "Executive") on October 25, 2005.
WHEREAS, the Board of Directors of the Company has determined that it is
in the best interest of the Company and its shareholders to provide the
Executive with an employment agreement in order to encourage the Executive to
continue as an executive of the Company.
WHEREAS, in accordance with the foregoing, the Company and Executive
desire to enter into this Agreement to set forth the terms of Executive's
employment with the Company.
WHEREAS, the Executive and the Company entered into a Change of Control
Agreement dated as of June 25, 2002, and the parties intend that this Agreement
shall supersede and replace the Change of Control Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements hereinafter set forth, the Company and the Executive
hereby agree as follows:
1. Definitions. For purposes of this Agreement, the following terms shall
have the meanings set forth below:
(a) "Agreement" means this Employment Agreement.
(b) "Base Salary" means Executive's annual base salary paid by the
Company.
(c) "Board" means the Board of Directors of the Company.
(d) "Cause" means any of the following grounds for termination of the
Executive's employment:
(1) The Executive shall have been indicted for, convicted of, or
pleads nolo contendere to, a felony or a crime involving fraud,
misrepresentation or moral turpitude;
(2) The Executive's fraud, dishonesty, theft or misappropriation of
funds in connection with his duties hereunder; or
(3) Gross negligence or willful misconduct in the performance (or
lack of performance) of the Executive's duties hereunder (which may include
grossly negligent or willful failure to comply with this Agreement or the
Company's Code of Conduct or employment policies, as in effect from time to
time) unless cured within 30 days after the Executive's receipt of written
notice thereof.
(e) "Change of Control" shall be deemed to have occurred, unless the
Board, a majority of which is comprised of Incumbent Board Members, determines
otherwise, if:
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(1) Any "person" (as such term is used in Sections 13(d) and 14(d)
of the Exchange Act) other than the Company becomes a "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing more than 20% of the voting power of the
then outstanding securities of the Company.
(2) Substantially all of the assets of the Company are sold or other
otherwise disposed of.
(3) A transaction is consummated in which the stockholders of the
Company immediately before the transaction will not beneficially own,
immediately after the transaction, shares entitling such stockholders to 80% or
more of all votes to which all stockholders of the surviving entity would be
entitled in the election of directors or other governing persons.
(4) A change in the composition of the Board such that Incumbent
Board Members cease for any reason to constitute at least a majority of the
Board.
(f) "Code" means the Internal Revenue Code of 1986, as amended.
(g) "Company" means Quipp, Inc.
(h) "Company Group" means the Company and all of its parents,
subsidiaries, affiliates and successors.
(i) "Constructive Termination Without Cause" means the Executive's
resignation of employment with the Company Group following the occurrence,
without his prior written consent, of one or more of the following events: (i) a
material reduction in the Executive's compensation; (ii) a significant
diminution in the Executive's duties and responsibilities, or the assignment to
the Executive of duties and responsibilities that are materially and adversely
inconsistent with the duties and responsibilities held by the Executive on the
date of this Agreement; or (iii) the required geographical relocation of the
Executive out of the greater Miami, Florida area, in each case except as is due
to Cause or as a result of the Disability of the Executive.
(j) "Disability" means a disability that entitles the Executive to receive
disability benefits under the Company's long-term disability plan.
(k) "Effective Date" of this Agreement is the date set forth in the first
paragraph of this Agreement.
(l) "Exchange Act" means the Securities Exchange Act of 1934, as amended.
(m) "Executive" means Xxxxxxx X. Xxxx.
(n) "Incumbent Board Members" means those individuals who, as of the date
of this Agreement, constitute the Board; provided, that any individual who
becomes a member of the Board subsequent to the effective date of this Agreement
whose election, or nomination for election by the Company's shareholders, was
approved by a vote of at least a majority of those individuals who are Incumbent
Board Members shall also be an Incumbent Board Member.
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(o) "Release" has the meaning set forth in Section 6(g).
(p) "Term" has the meaning set forth in Section 2(a)(1).
2. Employment.
(a) Term.
(1) The initial term of this Agreement shall begin on the Effective
Date and shall continue until the third anniversary of the Effective Date (the
"Initial Term") unless sooner terminated as hereinafter provided. On the date
that is one year before the expiration of the Initial Term or any Subsequent
Term (as described below), this Agreement shall be automatically extended for an
additional two-year period from the expiration date of the then existing Term (a
"Subsequent Term"), unless the Company provides written notice to the Executive
that the Agreement will not be extended. Any notice of non-renewal of the
Agreement shall be given to the Executive in writing pursuant to Section 16 at
least one year before the expiration of the then existing Term. For example, if
the Effective Date is November 1, 2005, the Initial Term will end on October 31,
2008, and the first Subsequent Term will end on October 31, 2010. For purposes
of this Agreement, "Term" shall mean the Initial Term and any Subsequent Term.
Notwithstanding the foregoing, if a Change of Control occurs while this
Agreement is in effect, the Term shall automatically be extended to 24 months
beyond the month in which the Change of Control occurs, unless the then existing
Term would otherwise end at a later date.
(2) If the Company elects not to renew the Agreement, the Agreement
will continue in effect according to its terms until the end of the then current
Term, at which time the Agreement shall terminate. The Company's failure to
renew this Agreement shall not be considered a termination of the Executive's
employment or a Constructive Termination without Cause for purposes of this
Agreement. If the Company fails to renew this Agreement at the end of the Term,
the Company shall provide the Executive with a Change of Control Agreement with
the same terms as the most favorable Change of Control Agreement then in effect
between the Company and any senior executive of the Company.
(b) Duties.
(1) The Executive shall serve as the President and Chief Executive
Officer of the Company and as the President of Quipp Systems, Inc., and in such
additional executive positions as the Board determines, with the reasonable
duties, responsibilities and authority commensurate therewith. The Executive
shall report to the Board. The Executive shall perform all duties and accept all
responsibilities incident to such positions as may be reasonably assigned to him
by the Board, consistent with his positions. The Executive shall have his
principal office within the greater Miami, Florida area, unless otherwise
mutually agreed by the parties hereto.
(2) The Executive represents to the Company that he is not subject
to or a party to any employment agreement, non-competition covenant,
understanding or restriction which would be breached by or prohibit the
Executive from executing this Agreement and performing fully his duties and
responsibilities hereunder.
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(c) Best Efforts. During the Term, the Executive shall devote his best
efforts and full time and attention to promote the business and affairs of the
Company and its affiliated companies, and shall be engaged in other business
activities only to the extent that such activities do not materially interfere
or conflict with his obligations to the Company hereunder, including, without
limitation, obligations pursuant to Section 12 below. The foregoing also shall
not be construed as preventing the Executive from serving on civic, educational,
philanthropic or charitable boards or committees, or, if the Board consents, on
corporate boards, so long as such activities do not significantly interfere with
the performance of the Executive's responsibilities hereunder and are permitted
under the Company's Code of Conduct and employment policies.
3. Compensation.
(a) Base Salary. As compensation for the services to be rendered
hereunder, the Company shall pay to the Executive an annual Base Salary at the
minimum rate of $225,000. This amount shall be subject to an upward adjustment
at such times as the Board may determine after the Effective Date. The
Executive's Base Salary shall be paid in accordance with the Company's existing
payroll policies, and shall be subject to applicable withholding taxes.
(b) Annual Bonus. The Executive shall be eligible for a discretionary
annual bonus under the Management Incentive Compensation Plan established by the
Corporate Governance and Compensation Committee of the Board from time to time.
The performance goals, targets and other terms of the discretionary annual bonus
shall be determined by the Corporate Governance and Compensation Committee and
may be based on considerations of overall Company financial results, achievement
of specified Company goals and achievement of specified personal objectives for
performance based on a completed fiscal year.
4. Employee Benefits and Vacation.
(a) Retirement and Welfare Benefits. The Executive shall be entitled to
participate in the Company's health, life insurance, long and short-term
disability, dental, retirement, savings, and medical programs, if any, pursuant
to their respective terms and conditions. Nothing in this Agreement shall
preclude the Company or any affiliate of the Company from terminating or
amending any employee benefit plan or program from time to time after the
Effective Date.
(b) Vacation. The Executive shall be entitled to vacation, holiday and
sick leave at levels commensurate with those provided to other senior executive
officers of the Company, in accordance with the Company's vacation, holiday and
other pay for time not worked policies; provided that in no event shall the
Executive be entitled to less than 20 vacation days per year.
5. Expenses. The Company shall reimburse the Executive for all necessary
and reasonable travel and other business expenses incurred by the Executive in
the performance of his duties hereunder in accordance with such reasonable
accounting procedures as the Company may adopt generally from time to time for
executives. The Executive shall be entitled to an automobile allowance of $1,000
per month, and the Executive will be entitled to (i) reimbursement for tolls
incurred while the automobile is being used for Company business and (ii) the
prevailing Internal Revenue Service rate for all miles driven for Company
business.
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6. Termination Without Cause; Constructive Termination Without Cause.
(a) The Company may terminate the Executive's employment with the Company
Group at any time without Cause upon not less than 30 days' prior written notice
to the Executive; provided that in the event that such notice is given, the
Executive shall be under no obligation to render any additional services to the
Company Group and shall be allowed to seek other employment. On the date of
termination specified in such notice, the Executive agrees to resign all
positions, including as an officer and, if applicable, as a director, related to
the Company Group.
(b) If the Company terminates the Executive's employment with the Company
Group without Cause or the Executive suffers a Constructive Termination Without
Cause and if subsection (c) below does not apply, the Company shall provide to
the Executive the following payments, provided the Executive executes and does
not revoke a written Release as described in subsection (g) below:
(1) The Company shall pay to the Executive the greater of (i) one
times the Executive's Base Salary, or (ii) an amount equal to the Executive's
Base Salary for the balance of the then existing Term. The Executive's Base
Salary shall be determined at the rate in effect immediately before the
Executive's termination of employment. The severance amount shall be payable in
installments over a period equal to the greater of 12 months or the balance of
the then existing Term, in accordance with the Company's normal payroll
practices.
(2) If the Executive becomes entitled to receive severance benefits
under this subsection (b), the Company shall reimburse the Executive for the
cost of any COBRA health insurance continuation coverage under the Company's
health plan for a period of 12 months following the Executive's termination
date. The Company may require the Executive to provide proof of payment for such
continuation coverage before making any reimbursement hereunder. The
reimbursement payment shall be made as of the first day of each month beginning
after the termination date and shall continue for 12 months.
(c) If, within the period commencing 90 days prior to a Change of Control
and ending 12 months following such Change of Control, the Company terminates
the Executive's employment with the Company Group without Cause or the Executive
suffers a Constructive Termination Without Cause, the Company shall provide to
the Executive the following payments, provided the Executive executes and does
not revoke a Release as described in subsection (g) below:
(1) The Company shall pay to the Executive the greater of (i) two
times the Executive's Base Salary, or (ii) an amount equal to the Executive's
Base Salary for the balance of the then existing Term. The Executive's Base
Salary shall be determined at the rate in effect immediately before the
Executive's termination of employment. The severance amount shall be paid in one
lump sum cash payment.
(2) If the Executive becomes entitled to receive severance benefits
under this subsection (c), the Company shall reimburse the Executive for the
cost of any COBRA health insurance continuation coverage under the Company's
health plan for a period of 12 months
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following the Executive's termination date. The Company may require the
Executive to provide proof of payment for such continuation coverage before
making any reimbursement hereunder. The reimbursement payment shall be made as
of the first day of each month beginning after the termination date and shall
continue for 12 months.
(d) Payment of the amounts described in subsection (b) or subsection (c)
above shall begin immediately after the end of the revocation period for the
Release or, if required by section 409A of the Code, six months after the date
of the Executive's separation from service with the Company. If the Executive
dies during such six-month period, the severance payments shall be paid to the
personal representative of the Executive's estate as soon as practicable, but
not later than 60 days, after the date of the Executive's death. If payment is
delayed pursuant to section 409A of the Code, the accumulated amounts withheld
on account of section 409A of the Code shall be paid on the first business day
after the end of the six-month period. Payments under this Agreement shall be
made by mail to the last address provided for notices to the Executive pursuant
to Section 16 of this Agreement.
(e) If payments pursuant to subsection (b) or subsection (c) are delayed
pursuant to section 409A of the Code, the Company shall pay interest on the
postponed payments from the Executive's termination date to the date of payment
at the prime rate quoted in the Wall Street Journal on the termination date or,
if not available on such date, the next prime rate quoted in the Wall Street
Journal (the "Prime Rate"). However, if payments required to be made under
subsection (c) are not made on the date specified in subsection (d), interest
shall be paid on the unpaid payments for the time they remain unpaid after such
due date at a rate equal to the Prime Rate plus three percentage points.
(f) The Executive shall be entitled to receive any benefits accrued and
due under any applicable benefit plans and programs of the Company; provided
that if the Executive receives severance benefits under subsection (b) or
subsection (c) above, the Executive shall not receive severance benefits under
any severance plan of the Company. If the Executive is a participant in the
Quipp, Inc. Management Incentive Compensation Plan and if payments are made
under subsection (b) or subsection (c), the Executive shall be entitled to
receive payment in accordance with the provisions of Section 9 of the Management
Incentive Compensation Plan, provided that the term "Cause" as used in Section 9
of the Management Incentive Compensation Plan shall have the meaning set forth
in Section 1(d) of this Agreement, and a Constructive Termination Without Cause
shall not be deemed to be a "voluntary resignation," and shall instead be
considered a termination by the Company without Cause, for purposes of Section 9
of the Management Incentive Compensation Plan.
(g) The Release shall be a release of claims in a form acceptable to the
Company, but substantially in the form attached hereto as Exhibit A (subject to
adjustments reasonably determined by the Company to be necessary to comply with
applicable law at the time of the Executive's termination), and shall be a
release of any and all claims against the Company and all related parties with
respect to all matters arising out of the Executive's employment by the Company,
or the termination thereof (other than amounts payable under Section 6 of this
Agreement, as applicable).
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(h) Notwithstanding anything in this Agreement to the contrary, the
Company shall not pay benefits under this Agreement earlier than the earliest
date permitted by section 409A of the Code, or later than the latest date
permitted by section 409A, in order to enable the Executive to avoid taxation
under section 409A.
7. Voluntary Termination.
(a) The Executive may voluntarily terminate his employment for any reason
upon 30 days' prior written notice. In such event, after the effective date of
such termination, except as provided below, no payments shall be due under this
Agreement, except that the Executive shall (a) be paid all earned and unpaid
compensation and (b) receive benefits accrued and due under any applicable
benefit plans and programs of the Company and applicable law.
(b) If the Executive terminates his employment as a result of a
Constructive Termination Without Cause, the Executive shall be entitled to
receive the amounts specified in Section 6(b) or 6(c), whichever is applicable.
8. Disability. If the Executive incurs a Disability, the Executive's
employment shall terminate on the date of Disability or such later date as the
Company determines according to Company policy. If the Executive's employment
terminates on account of his Disability, no payments shall be due under this
Agreement after the effective date of termination, except that Executive shall
(a) be paid all earned and unpaid compensation and (b) receive any benefits
accrued and due under any applicable benefit plans and programs of the Company
and applicable law.
9. Death. If the Executive dies while employed by the Company, the
Executive's employment shall terminate on the date of death and the Company
shall pay to the Executive's executor, legal representative, administrator or
designated beneficiary, as applicable, any benefits accrued and due under any
applicable benefit plans and programs of the Company or applicable law.
Otherwise, the Company shall have no further liability or obligation under this
Agreement to the Executive's executors, legal representatives, administrators,
heirs or assigns or any other person claiming under or through the Executive.
10. Cause. The Company may terminate the Executive's employment at any
time for Cause upon written notice to the Executive, in which event all payments
under this Agreement shall cease, except for all earned and unpaid compensation
and any benefits accrued and due under any applicable benefit plans and programs
of the Company and applicable law.
11. Reduction of Payments.
(a) Notwithstanding anything in this Agreement to the contrary, in the
event that it shall be determined that any payments or distributions by the
Company or a subsidiary to the Executive, whether paid or payable or distributed
or distributable pursuant to the terms of this Agreement or otherwise, would
constitute "excess parachute payments" within the meaning of Section 280G of the
Code and the regulations thereunder, the payments to or for the benefit of the
Executive pursuant to Section 6 of this Agreement shall be reduced (but not
below zero) to the extent necessary so that such payments shall not constitute
"excess parachute payments." The value of the noncompetition covenant described
in Section 12 below, as determined by an
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independent valuation expert selected by the Accounting Firm described in
subsection (b) below, shall be taken into account to the maximum extent
allowable under Section 280G of the Code to reduce the amounts considered to be
"excess parachute payments" under Section 280G of the Code.
(b) All determinations to be made under subsection (a) shall be made by
the Company's independent certified public accounting firm immediately prior to
the Change of Control (the "Accounting Firm"). The Accounting Firm shall provide
its determinations and any supporting calculations to both the Company and the
Executive within 60 days of the Executive's termination date, and such
determinations shall be binding upon the Company and the Executive. All of the
fees and expenses incurred by the Accounting Firm in performing the
determinations above shall be borne solely by the Company.
12. Restrictive Covenants.
(a) Covenant Not to Compete. The Executive hereby agrees that, during the
Executive's employment with the Company Group and thereafter during the
Restriction Period (as defined below), the Executive will not, at any time,
directly or indirectly, engage in, or have any interest on behalf of himself or
others in any person or business other than the Company Group (whether as an
employee, officer, director, agent, security holder, creditor, partner, joint
venturer, beneficiary under a trust, investor, consultant or otherwise) that
engages, within the Restricted Territory (as defined below), in any of those
business activities in which the Company Group is engaged or has been engaged in
the last 12 months. The "Restriction Period" for purposes of this Agreement is
the period commencing on the Effective Date and ending two years after the date
of the Executive's termination of employment with the Company Group; provided
that the Restriction Period shall end if the Company fails to pay amounts due
and owing to the Executive under this Agreement unless such failure is cured
within 20 days after the Company's receipt of written notice of such failure.
The "Restricted Territory" means anywhere in the United States, Canada and
Mexico. Notwithstanding the foregoing, and provided that such activities do not
interfere with the fulfillment of the Executive's obligations, the Executive may
acquire solely as an investment not more than 2% of any class of securities of
any competing entity if such class of securities is listed on a national
securities exchange or on the Nasdaq system, so long as the Executive remains a
passive investor in such entity.
(b) Hiring of Employees. The Executive hereby agrees that, during the
Executive's employment with the Company Group and thereafter during the
Restriction Period, the Executive will not directly or indirectly (unless on
behalf of the Company Group) solicit for employment, or hire or offer employment
to, (i) any employee of the Company Group unless the Company Group first
terminates the employment of such employee or (ii) any person who at any time
during the 180-day period prior to the termination of the Executive's employment
with the Company Group was an employee of the Company Group.
(c) Non-Solicitation. The Executive hereby agrees that, during the
Executive's employment with the Company Group and thereafter during the
Restriction Period, the Executive will not directly or indirectly (unless on
behalf of the Company Group) call on or solicit for the purpose of selling
services or products of a type offered by the Company Group or divert or take
away from the Company Group (including, by divulging any identity to any
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competitor or potential competitor of the Company Group) any person or entity
who is at that date (if such action occurs during the Executive's employment
with the Company Group) or at the date of termination of the Executive's
employment was, or at any time during the 12-month period prior to either such
date had been, a customer of the Company Group or whose identity is known to the
Executive at either such date as one whom the Company Group intends to solicit
within the succeeding year.
(d) Proprietary Information. At all times, the Executive will hold in
strictest confidence and will not disclose, use, lecture upon or publish any of
the Company Group's Proprietary Information (defined below), except as such
disclosure, use or publication may be required in connection with the
Executive's work for the Company Group, unless the Board expressly authorizes
such disclosure in writing or unless such disclosure is required by law or in a
judicial or administrative proceeding, in which event the Executive shall
promptly notify the Board of the required disclosure and assist the Company
Group if it determines to resist the disclosure. "Proprietary Information" shall
mean any and all confidential or proprietary knowledge, data or information of
the Company Group, including but not limited to information relating to
financial matters, investments, budgets, business plans, marketing plans,
personnel matters, business contacts, products, processes, know-how, designs,
methods, improvements, discoveries, inventions, ideas, data, programs, and other
works of authorship other than any of the foregoing that becomes generally
available to the public other than through the Executive's breach of this
Agreement.
(e) Invention Assignment. The Executive agrees that all inventions,
innovations, improvements, developments, methods, designs, analyses, reports,
and all similar or related information which relates to the Company Group's
actual or anticipated business, research and development or existing or future
products or services and which are conceived, developed or made by Executive
while employed by any entity within the Company Group, whether or not patented
("Work Product") belong to the Company Group. The Executive will promptly
disclose such Work Product to the Board and perform all actions reasonably
requested by the Board (whether during or after the Term) to establish and
confirm such ownership (including, without limitation, assignments, consents,
powers of attorneys and other instruments).
(f) Return of Company Property. Upon termination of the Executive's
employment with the Company Group for any reason whatsoever, voluntarily or
involuntarily, and at any earlier time the Company requests, the Executive will
deliver to the person designated by the Company Group all originals and copies
of all documents and property of the Company Group in the Executive's
possession, under the Executive's control or to which the Executive may have
access. The Executive will not reproduce or appropriate for the Executive's own
use, or for the use of others, any property, Proprietary Information or Work
Product.
13. Legal and Equitable Remedies. Because the Executive's services are
personal and unique and the Executive has had and will continue to have access
to and has become and will continue to become acquainted with the Proprietary
Information of the Company Group, and because any breach by the Executive of any
of the restrictive covenants contained in Section 12 would result in irreparable
injury and damage for which money damages would not provide an adequate remedy,
the Company Group shall have the right to enforce Section 12 and any of its
provisions by injunction, specific performance or other equitable relief,
without bond and
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without prejudice to any other rights and remedies that the Company Group may
have for a breach, or threatened breach, of the restrictive covenants set forth
in Section 12. The Executive agrees that in any action in which the Company
Group seeks injunction, specific performance or other equitable relief, the
Executive will not assert or contend that any of the provisions of Section 12
are unreasonable or otherwise unenforceable. The Executive irrevocably and
unconditionally (a) agrees that any legal proceeding arising out of this
paragraph may be brought in the United States District Court for the Southern
District of Florida, or if such court does not have jurisdiction or will not
accept jurisdiction, in any court of general jurisdiction in Miami-Dade County,
Florida, (b) consents to the non-exclusive jurisdiction of such court in any
such proceeding, and (c) waives any objection to the laying of venue of any such
proceeding in any such court. The Executive also irrevocably and unconditionally
consents to the service of any process, pleadings, notices or other papers. Each
party hereto hereby irrevocably waives personal service of process and consents
to process being served in any legal proceeding by mailing or delivering a copy
thereof in the manner and at the address specified in Section 15 below, and
agrees that such service shall constitute good and sufficient service of process
and notice thereof.
14. Survival. The respective rights and obligations of the parties
hereunder shall survive the termination of this Agreement to the extent
necessary to the intended preservation of such rights and obligations.
15. No Mitigation or Set Off. In no event shall the Executive be obligated
to seek other employment or take any other action by way of mitigation of the
amounts payable to the Executive under any of the provisions of this Agreement
and such amounts shall not be reduced, regardless of whether the Executive
obtains other employment. The Company's obligation to make the payments provided
for in this Agreement and otherwise to perform its obligations hereunder shall
not be affected by any circumstances, including, without limitation, any
set-off, counterclaim, recoupment, defense or other right which the Company may
have against the Executive or others.
16. Notices. All notices referred to in this Agreement shall be given in
writing and shall be effective if given by (a) personal delivery; (b) facsimile,
when transmitted to the telecopy number below and an appropriate facsimile
confirmation is received; (c) registered or certified mail, postage-paid, when
received by a party at its address listed below (return receipt requested); or
(d) delivered by an express courier (with confirmation) to a party at its
address listed below:
If to the Company, to:
Quipp, Inc.
0000 X.X. 000 Xxxxxx
Xxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Chairman of the Board
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With a required copy to:
Xxxxxx, Xxxxx & Xxxxxxx LLP
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxxx, Esquire
If to the Executive, to the most recent address on file with the Company.
or to such other names or addresses as the Company or the Executive, as the case
may be, shall designate by notice to each other person entitled to receive
notices in the manner specified in this Section.
17. Withholding. All payments under this Agreement shall be made subject
to applicable tax withholding, and the Company shall withhold from any payments
under this Agreement all federal, state and local taxes as the Company is
required to withhold pursuant to any law or governmental rule or regulation. The
Executive shall bear all expense of, and be solely responsible for, all federal,
state and local taxes due with respect to any payment received under this
Agreement.
18. Other Benefit Plans. Nothing in this Agreement shall prevent or limit
the Executive's continuing or future participation in or rights under any
benefit, bonus, incentive, or other plan or program provided by the Company, and
for which the Executive may qualify, from the date hereof through the
Executive's termination date.
19. Remedies Cumulative; No Waiver. No remedy conferred upon a party by
this Agreement is intended to be exclusive of any other remedy, and each and
every such remedy shall be cumulative and shall be in addition to any other
remedy given under this Agreement or now or hereafter existing at law or in
equity. No delay or omission by a party in exercising any right, remedy or power
under this Agreement or existing at law or in equity shall be construed as a
waiver thereof, and any such right, remedy or power may be exercised by such
party from time to time and as often as may be deemed expedient or necessary by
such party in its sole discretion.
20. Assignment. All of the terms and provisions of this Agreement shall be
binding upon and inure to the benefit of and be enforceable by the respective
heirs, executors, administrators, legal representatives, successors and assigns
of the parties hereto, except that the duties and responsibilities of the
Executive under this Agreement are of a personal nature and shall not be
assignable or delegable in whole or in part by the Executive. The Company shall
require any successor (whether direct or indirect, by purchase, merger,
consolidation, reorganization or otherwise) to all or substantially all of the
business or assets of the Company, within 15 days of such succession, expressly
to assume and agree to perform this Agreement in the same manner and to the same
extent as the Company would be required to perform if no such succession had
taken place and the Executive acknowledges that in such event the obligations of
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the Executive hereunder, including but not limited to those under Sections 12
and 13, will continue to apply in favor of the successor.
21. Entire Agreement. This Agreement sets forth the entire agreement of
the parties hereto and supersedes any and all prior agreements and
understandings concerning the Executive's employment by the Company (including
without limitation the Change of Control Agreement dated as of June 25, 2002,
which is superseded by this Agreement). This Agreement may be changed only by a
written document signed by the Executive and the Company.
22. Severability. In the event of litigation involving this Agreement, if
a court of competent jurisdiction determines that the duration or scope of
Section 12 is too long or broad in any respect, then the duration or scope shall
be deemed to be reduced or narrowed to such duration or scope as is found lawful
and reasonable by such court. The Executive acknowledges, however, that Section
12 has been negotiated by the parties and that the geographical and time
limitations, as well as the limitation on activities, are reasonable in light of
the circumstances pertaining to the Company. The Executive agrees that if any
provision of this Agreement is construed to be invalid or unenforceable, the
remaining provisions of this Agreement shall not be affected and the remaining
provisions will have full force and effect without regard to the invalid or
unenforceable portions.
23. Governing Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the substantive and procedural laws of the state of
Florida without regard to rules governing conflicts of law.
24. Counterparts. This Agreement may be executed in any number of
counterparts (including facsimile counterparts), each of which shall be an
original, but all of which together shall constitute one instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
QUIPP, INC.
By: /s/ XXXXXXXX X. XXXXXX
---------------------------------------
Xxxxxxxx X. Xxxxxx
Chairman of the Board of Directors
EXECUTIVE
By: /s/ XXXXXXX X. XXXX
---------------------------------------
Xxxxxxx X. Xxxx
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EXHIBIT A
GENERAL RELEASE
1. General Release. I, ____________, for and in consideration of the
commitments of Quipp, Inc. (the "Company") under the Employment Agreement
between the Company and me dated ______________, 2005 (the "Agreement") and
intending to be legally bound, do hereby REMISE, RELEASE AND FOREVER DISCHARGE
the Company, and its respective affiliates, subsidiaries and parents, and its
and their respective officers, directors, partners, shareholders, employees, and
agents, and their respective successors, predecessors, assigns, heirs,
executors, and administrators (collectively, the "Company Releasees") from all
causes of action, suits, debts, claims and demands whatsoever in law or equity,
that I ever had, now have, or hereafter may have, or which my heirs, executors
or administrators hereafter may have, whether known or unknown, suspected or
unsuspected, apparent or concealed, by reason of any matter, cause or thing
whatsoever, at any time prior to the date I sign this General Release, and
particularly, but without limitation of the foregoing general terms, any claims
arising from or relating in any way to my employment relationship with the
Company Group (as defined in the Agreement) or the termination thereof,
including, without limitation, any claims arising under the Rehabilitation Act
of 1973, 29 USC Sections 701 et seq., as amended; Title VII of the Civil Rights
Act of 1964, 42 USC Sections 2000e et seq., as amended; the Civil Rights Act of
1991, 2 USC Sections 60 et seq., as applicable; the Age Discrimination in
Employment Act of 1967, 29 USC Sections 621 et seq., as amended ("ADEA"); the
Americans with Disabilities Act, 29 USC Sections 706 et seq. ("ADA"); the Family
and Medical Leave Act, 29 U.S.C. Section 2601 et. seq. ("FMLA"); the Employee
Retirement Income Security Act of 1974, 29 USC Sections 301 et seq., as amended
("ERISA"); the Florida Civil Rights Act of 1992 as amended, Fla. Stat. Sections
760.01 et seq.; the Florida Private Whistleblower Act, Fla. Stat. Section
448.101 et seq.; Florida's Workers Compensation laws, Fla. Stat. Ch. 440; and
all other claims under any federal, state or local law, whether statutory,
regulatory, or common law, including, without limitation, any claims for
discriminatory or wrongful discharge, now or hereafter recognized, and any
claims for attorneys' fees, costs, disbursements and the like. This General
Release is effective without regard to the legal nature of the claims raised or
whether such claims are based upon tort, equity, implied or express contract, or
discrimination of any sort. Nothing in this General Release shall be deemed to
be a waiver of any claims that may arise after the date I sign this General
Release, or to claims for indemnification or advancement of expenses that I may
have as a director or officer of a Company Group member. The term "Company
Group" shall have the meaning given that term in the Agreement.
2. Waiver. Subject to the limitations of paragraph 1 above, I expressly
waive all rights afforded by any statute which expressly limits the effect of a
release with respect to unknown claims. I understand the significance of this
release of unknown claims and the waiver of statutory protection against a
release of unknown claims.
3. Termination of Employment; No Re-Hire. I hereby agree and recognize
that my employment by the Company [* OR OTHER COMPANY GROUP MEMBER] was
permanently and irrevocably severed on _______ __, _____, that I will not apply
for or otherwise seek reemployment with any Company Group member at any time,
and that neither the Company nor any other Company Group member has any
obligation, contractual or otherwise to me to hire,
rehire or reemploy me in the future. I acknowledge that the terms of the
Agreement provide me with payments and benefits which are in addition to any
amounts to which I otherwise would have been entitled.
4. No Disparagement. To the fullest extent permitted by law and unless
otherwise required by law, I agree that I shall not publicly or privately make
any disparaging comments, orally or in writing, about any member of the Company
Group and shall not make any false statements, orally or in writing, about any
of the Company Group's products or services. For purposes of this General
Release, the term "disparage" includes, without limitation, comments or
statements to the press or media or to any entity or individual with whom any
member of the Company Group has a business relationship that would adversely
affect in any manner the conduct of the business of any member of the Company
Group or the business or personal reputation, as the case may be, of any member
of the Company Group.
5. Certification. I hereby certify that I have read the terms of this
General Release and understand its terms and effects, including the fact that I
have agreed to RELEASE AND FOREVER DISCHARGE the Company Releasees from any and
all legally waivable claims. I hereby certify that I have had adequate time to
review and consider this General Release prior to signing and have signed this
General Release voluntarily and knowingly in exchange for the consideration
described in the Agreement, which is adequate and satisfactory to me. I further
certify that I have been advised by the Company and am hereby advised in writing
to consult with an attorney of my choosing prior to signing this General
Release, and I have in fact consulted with an attorney or have had adequate time
and opportunity to do so prior to signing this General Release. None of the
above named parties, nor their agents, representatives, or attorneys have made
any representations to me concerning the terms or effects of this General
Release other than those contained herein.
6. Right to Revoke. I hereby acknowledge that I have been informed that I
have the right to consider this Release for a period of 21 days prior to
execution. I also understand that I have the right to revoke this Release for a
period of seven days following execution by giving written notice to the Company
at 0000 X.X. 000 Xxxxxx, Xxxxx, XX 00000, Attention: __________________________.
7. Governing Law. This General Release shall be subject to, governed by,
interpreted in accordance with and enforced under the laws of the state of
Florida without regard to conflicts of law principles. I (a) irrevocably submit
to the jurisdiction of the United States District Court for the Southern
District of Florida and to the jurisdiction of any court of general jurisdiction
in Miami-Dade County, Florida for the purposes of any suit, action or other
proceeding arising out of or relating to this General Release, and (b) waive and
agree not to assert in any such proceeding a claim that (i) I am not personally
subject to the jurisdiction of the courts referred to above, (ii) the suit or
action was brought in an inconvenient forum, or (iii) the venue of the suit or
action is improper.
8. Survival. I hereby further acknowledge that the terms of Sections 12
and 13 of the Agreement shall continue to apply for the time periods provided
therein and that I will abide by and fully perform such obligations.
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9. Entire Agreement. This General Release sets forth the entire agreement
between the parties and fully supersedes any and all prior agreements or
understandings between them. I agree that no promises or representations have
been made to me in connection with the terms of this General Release other than
those set forth herein.
10. Binding Effect. This General Release is binding upon, and shall inure
to the benefit of, the parties and their respective heirs, administrators,
executors, successors and assigns.
11. Effective Date. This General Release shall not become binding on any
party until all parties have signed it. The effective date of this General
Release shall be the eighth day following execution of this General Release by
both parties.
Intending to be legally bound hereby, I execute the foregoing General
Release this ___ day of _____________, 20 ___.
_______________________ _____________________
Witness
NO DISPARAGEMENT AGREEMENT OF THE COMPANY
To the fullest extent permitted by law, and unless otherwise required by law,
the Company agrees that it will not publicly or privately make any disparaging
comments, orally or in writing, about _____. For this purpose, the term
"disparage" includes, without limitation, comments or statements to the press or
media or to any entity or individual with whom _____ has a business relationship
that would adversely affect in any manner the conduct of the business or
personal reputation of _____.
QUIPP, INC.
By: ____________________________
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