Exhibit 10.41
SEPARATION AGREEMENT AND GENERAL RELEASE
This Separation Agreement and General Release (this "Agreement") is
between Xxxxx Xxxxxxx ("Employee") and Quanta Services, Inc. (the "Company").
WHEREAS, Employee served as Chief Operating Officer of the Company
under the terms of an Employment Agreement dated March 12, 2001;
WHEREAS, Employee resigned from the Company effective October 31, 2002;
WHEREAS, Employee and the Company have a bona fide dispute as to the
amount of money, if any, due to Employee under the terms of the Employment
Agreement dated March 12, 2001 and the Employment Agreement dated March 13,
2002 (collectively referred to as "the Employment Agreement");
WHEREAS, Employee and the Company desire to resolve their dispute and
avoid the costs of arbitration.
NOW, THEREFORE, the parties do hereby agree as follows:
1. Separation of Employment. Employee's resignation is effective
October 31, 2002 (the "Separation Date").
2. Consideration. The Company shall pay Employee, subject to the
provisions hereof, a lump sum payment in the amount of $793,534.45 without any
withholdings (the "Separation Payment"). Employee agrees to indemnify the
Company in the event that the Company is assessed any taxes, penalties, or
interest because Employee fails to pay taxes due on the Separation Payment or
because Employee requested that the Company not withhold taxes from the
Separation Payment. The Separation Payment will be paid no later than eight
days after Employee signs this Agreement. Employee acknowledges that the
Separation Payment represents a compromise of a bona fide dispute and that the
Separation Payment and mutual releases are, independent of each other, valuable
consideration for the mutual release provided in Section 3 and the
confidentiality provision set forth in Section 4.
3. Mutual Releases. In consideration of receipt by Employee of the
Separation Payment and these mutual releases, the parties hereto, on behalf of
their respective heirs, executors, successors, administrators and assigns, do
hereby release, acquit and forever discharge each other, as well as the
Company's direct and indirect subsidiaries and affiliated companies, and former
subsidiaries and their respective present and former directors, officers,
affiliates, agents, representatives, employees, successors, and assigns
(collectively referred to herein along with the Company as the "Releases") from
any and all liabilities, damages, causes of action and claims of any nature,
kind or description whatsoever, whether accrued or to accrue, known or unknown,
which Employee or Releases ever had, now have or hereafter may have against
each other
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through the date of this Agreement arising out of any act, omission,
transaction, occurrence or claim, including, but not limited to, Employee's
employment with the Company, the terms of the Employment Agreement, his
position as an officer of the Company, or the termination thereof, which may be
the basis of any employment discrimination complaint, charge, or proceeding in
any federal, state or local court or administrative proceeding of any kind,
including, but not limited to, claims under Title VII of the Civil Rights Act
of 1964 (and all of its amendments); The American With Disabilities Act, as
amended; the Age Discrimination in Employment Act; the Texas Commission on
Human Rights Act, or any federal or state statute or regulation or independent
tort claim, or claim for breach of contract, fraud, promissory estoppel or any
other common law claim. Nothing herein shall release the Company from its
obligation under Section 10 of the Employment Agreement dated March 12, 2001 to
indemnify Employee in the event a claim is made in his former capacity as an
officer or director of Releases. Employee acknowledges that his post-employment
obligations to the Company under the Employment Agreement dated March 12, 2001,
specifically limited to the confidentiality provision (Section 9), shall
continue in full force until they expire by their terms and that this mutual
release shall not extinguish the Company's right to enforce its rights under
that provision.
4. Confidentiality of the Agreement. Employee and the Company
(including all of its directors and officers) acknowledge, represent, and agree
that each will keep the fact of this Agreement and all of its terms completely
confidential and that neither party will disclose any information concerning
this Agreement to any person, including, but not limited to, any past, present,
or prospective employees of the Company, except the parties may disclose and
provide a copy of the Agreement to any of their respective directors, officers,
attorneys and accountants, and, in the case of Employee, to his immediate
family.
5. No Admission of Liability. This Agreement shall not be construed in
any way as an admission by the Company or Employee of any unlawful act
whatsoever against the other.
6. Return of Company Property. Employee acknowledges that he has
returned or will return within seven (7) days all of the Company's property in
his possession, including his computer and all data and information contained
within it or taken from it.
7. Return of Stock Certificates and Stock Option Vesting. Employee
shall return to the Company all restricted stock certificates identified as
certificate nos. PWR2677 (9,087 shares), PWR2678 (18,175 shares), PWR2679
(18,175 shares), PWR2680 (9,087 shares), and PWR2681 (9,090 shares). Employee
waives any right to ownership or interest in these stock certificates. The
Company will take all action necessary to deem as vested 35,719.18 stock
options at $27.51/share, representing Employee's pro-rata vesting under the
Employment Agreement of nonqualified stock options from his sign-on grant of
175,000 stock options. The Company will take all action necessary to deem as
vested 10,205.48 stock options at $12.38/share, representing
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Employee's pro-rata vesting under the Employment Agreement of nonqualified
stock options from his re-load grant. Employee will remain eligible to exercise
all vested stock options until 90 days after February 5, 2004.
8. 401K Contribution. The Company agrees to make the maximum
applicable 401K contribution for Employee for the year ending 2002, to be paid
at the time the Company makes such contributions for its executives.
9. References. Xxxx Xxxxxx ("Xxxxxx") shall provide Employee with a
positive letter of reference, the content and language of which will be agreed
upon by the parties. A copy of the reference letter is attached as Exhibit A.
Any requests for references about Employee will be directed to Xxxxxx, who will
provide the agreed upon written reference letter and/or an oral reference
consistent with the content and language in the agreed written reference
letter. The Company will issue a press release that the parties represent has
been approved by Xxxxxx and Employee, a copy of which is attached as Exhibit B.
The Company will distribute to its employees and subsidiaries a memorandum
prepared by Employee and approved by Xxxxxx, a copy of which is attached as
Exhibit C.
10. Mutual Non-Disparagement. Neither party (including but not limited
to the Company's directors) will make any comment or statement, whether oral or
written, that disparages the other in any respect, except to the extent a party
or party's director, officer, or employee is required to answer questions under
subpoena which elicit testimony that may be considered disparaging.
11. Governing Law. This Separation Agreement and General Release is
made and entered into in the State of Texas and shall in all respects be
interpreted, enforced, and governed under the laws of the State of Texas. The
language of all parts of this Agreement shall in all cases be construed as a
whole according to its fair meaning, and not strictly for or against any of the
parties. The parties further agree that there will be no presumption that any
ambiguity in the Agreement shall be construed against the drafter of the
Agreement.
12. Arbitration.
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a. Any unresolved dispute or controversy arising under
or in connection with this Agreement shall be
settled exclusively by arbitration in accordance
with the Employment Dispute Resolution rules of the
American Arbitration Association then in effect. The
arbitration shall be conducted by a retired judge
employed by the Dallas, Texas office of JAMS, LLC
("JAMS"). The arbitration shall be held in Houston,
Texas.
b. The parties shall obtain from JAMS a list of the
retired judges available to conduct the arbitration.
The parties shall use their reasonable efforts to
agree upon a judge to conduct the arbitration. If
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the parties cannot agree upon a judge to conduct the
arbitration within ten (10) days after receipt of
the list of available judges, the parties shall ask
JAMS to provide the parties a list of three (3)
available judges (the "Judge List"). Within five (5)
days after receipt of the Judge List, each party
shall strike one (1) of the names of the available
judges from the Judge List and return a copy of such
list to JAMS and the other party. If two different
judges are stricken from the Judge List, the
remaining judge shall conduct the arbitration. If
only one judge is stricken from the Judge List, JAMS
shall select a judge from the remaining two judges
on the Judge List to conduct the arbitration.
c. The arbitrator shall not have the authority to add,
to detract from, or modify any provision hereof. A
decision by the arbitrator shall be final and
binding. Judgment may be entered on the arbitrator's
award in any court having jurisdiction.
13. Entirety of Agreement. This Agreement sets forth the entire
Agreement between the parties hereto, and fully supersedes any and all prior
arrangements or understanding between the parties hereto pertaining to the
subject matter hereof, except to the extent set forth in Section 3 above.
14. Time Period for Enforceability/Revocation of Agreement. Payment of
the above-described Separation Payment is contingent upon the Employee
executing and returning this Agreement to the Company and complying with
Paragraph 6 of this Agreement. Employee may take up to twenty-one (21) days to
consider this Agreement prior to executing it. Employee may sign this Agreement
at any time during this twenty-one (21) day period. Any changes made to this
Agreement after presentation to Employee will not re-start the running of the
twenty-one (21) day period. Furthermore, Employee has a seven (7) day period
after executing this Agreement during which time Employee may revoke Employee's
consent to the Agreement by giving written notification of the decision to
revoke to the Company. This Agreement will not become effective or enforceable
until such revocation period has expired.
15. Representations. The Company represents that Employee had no
involvement in recent amendments to the Stock Option Plan or the Company's
acquisition of Network Electric. The Company further represents that Employee
made no representations to First Reserve Corporation in connection with its
investment in the Company.
16. Attorney's Fees. The Company agrees to pay Employee's legal
counsel, Xxxxxx Xxxxxxx, the total amount of $6,500, within 30 days of
Xxxxxxx'x invoice to Employee for his legal services rendered in connection
with the negotiation of this Agreement.
17. Acknowledgments. Employee represents and acknowledges that in
executing this Agreement, he does not rely and has not relied upon any
representation or
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statement made by the Company, or its officers, directors, agents,
representatives, or attorneys with regard to the subject matter, basis or
effect of this Agreement or otherwise. Employee further represents that he has
retained counsel of his own selection and has been advised by his counsel of
the legal effect of this Agreement. Employee also warrants that he has read the
foregoing Agreement and understands it.
PLEASE READ CAREFULLY. THIS AGREEMENT INCLUDES A RELEASE OF ALL KNOWN
AND UNKNOWN CLAIMS ARISING PRIOR TO ITS EXECUTION.
QUANTA SERVICES, INC. EMPLOYEE
By: /s/ XXXX XXXXXX By: /s/ XXXXX XXXXXXX
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Xxxx Xxxxxx Xxxxx Xxxxxxx
Chairman, C.E.O., and President
Date: October 24, 2002 Date: October 24, 2002
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