Exhibit 10.43
SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT (this "Agreement") is entered into as of the
31st day of October, 2003 ("Effective Date") by and among TROPICAL SPORTSWEAR
INT'L CORPORATION, a Florida corporation ("Tropical") and XXXXXXXXXXX X. XXXXXX
("Xxxxxx"). The term "Parties" refers to all of the foregoing, and the term
"Party" refers to each of the foregoing.
WHEREAS, Tropical and Xxxxxx are parties in a civil action
styled Tropical Sportswear Int'l Corporation vs. Xxxxxxxxxxx X. Xxxxxx, Xxxxxxx
X. Xxxxxxxx and Xxxxxx X. XxXxxxxxx, Xx., in the Circuit Court in and for the
Thirteenth Judicial Circuit of Hillsborough County, Florida, Case No: 03-7619,
Division I (the "Litigation"); and
WHEREAS, the Litigation pertains to Tropical's disputed
obligations to Xxxxxx, Xxxxxxx X. Xxxxxxxx ("Xxxxxxxx") and Xxxxxx X. XxXxxxxxx,
Xx. ("XxXxxxxxx") resulting from Tropical's termination of the employment of
Xxxxxx, Xxxxxxxx and XxXxxxxxx, effective August 15, 2003 ("Termination Date");
and
WHEREAS, the Parties have successfully mediated a resolution
of the Litigation, the terms and conditions of which are embodied in this
Agreement; and
NOW, THEREFORE, in consideration of the payments and covenants
described below, and in consideration of other good and valuable consideration,
the receipt and sufficiency of all of which are hereby acknowledged, Tropical
and Xxxxxx agree as to the following terms and conditions:
1. The foregoing recitals are true and correct.
2.A. Tropical shall compensate Xxxxxx in the sum of One Million
Nine Hundred Twenty Six Thousand Dollars and No Cents
($1,926,000.00). This entire amount of compensation is
severance for termination of his employment with Tropical and,
except as otherwise expressly stated hereunder, is in
fulfillment of all obligations of Tropical to Xxxxxx.
B. The amount of compensation set forth in paragraph 2.A. above,
shall be paid to Xxxxxx less all sums required to be withheld
by Tropical pursuant to federal, state, local and foreign law
or regulation. The withholding sum equals the amount of Five
Hundred Nine Thousand Four Hundred Twenty Seven Dollars and No
Cents ($509,427.00). Xxxxxx acknowledges receipt of the sum of
One Million Four Hundred Sixteen Thousand Five Hundred Seventy
Three Dollars and No Cents ($1,416,573.00), which is the total
compensation less the withholding sum.
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3.A. In addition, Tropical shall pay Xxxxxx the sum of One Hundred
Thirty Six Thousand Three Hundred Dollars and Eight Cents
($136,300.08), as compensation "grossed up" for termination of
the following insurance over three years:
Type Policy Value Carrier Annual Cost
---- ------------ ------- -----------
Family HMO n/a Aetna $13,752
Group Life $ 500,000 Aetna $ 9,455
Family Dental n/a CompBenefits $310.00
Individual Life $ 1,000,000 First Colony $460.00
Executive Group
Life $ 1,000,000 C.N.A. $ 362
Supplemental
Disability $5000/month MetLife $ 1387
Accidental Death
& Dismemberment $ 500,000 Aetna $ 120
Group Travel
Accident $ 3,000,000 Reliance Standard $ 120
in event of
death
Tropical is permitted to terminate the above insurance.
Withholding on this compensation equals Thirty Six Thousand
Fifty One Dollars and Thirty Seven Cents ($36,051.37). Xxxxxx
acknowledges receipt of the sum of One Hundred Thousand Two
Hundred Forty Eight Dollars and Seventy One Cents
($100,248.71), which is the compensation less the withholding
sum.
B. Tropical shall not be obligated to secure or provide
disability insurance for Xxxxxx or his family under any group
disability policy.
C Tropical Sportswear is presently paying premiums for a BUPA
policy. Any obligation which Tropical may have to pay those
premiums shall cease upon the execution of this Agreement.
However, Tropical agrees to cooperate administratively in
Xxxxxx'x efforts to continue that coverage in effect without
interruption.
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4.A. The Parties mutually and generally release each other under
the following terms.
B. Unless specifically and expressly stated otherwise in this
Agreement, the term "Claims" as used in this Agreement
includes any and all rights to compensation, severance or
termination compensations, accrued obligations or benefits,
business reason termination payments, target annual cash
bonuses, welfare plan benefits, other benefits, actions,
causes of action, defenses, lawsuits, arbitrations, injuries,
losses, payments, attorneys' fees, benefits, rights, damages,
costs, loss of service, loss of opportunities, loss of
profits, liens, expenses, compensation, suits, debts, dues,
sums of money, accounts, reckonings, bonds, stock claims,
stock option claims, benefits claims, bills, securities,
specialties, covenants, contracts, controversies, agreements,
promises, duties and obligations, variances, judgments,
extents, executions, claims, and demands, of any type
whatsoever, including any claim for indemnity or for
contribution, or any claim in subrogation or other similar
third party type of claim, in law or equity, whether known or
unknown, suspected or unsuspected, actual or potential,
asserted or unasserted, warranted or unwarranted, fixed or
contingent, liquidated or unliquidated, which has matured and
which a Party has as of the effective date of this Agreement,
or had or ever had prior to the effective date of this
Agreement.
C. The term "Claims" shall also include, but is not limited to,
any cause of action or any matter whatsoever relating to,
arising from, or in any way pertaining to the Litigation, or
relating to, arising from, or in any way pertaining to any
matter which was alleged in, or which could have been alleged
in, the Litigation.
D. The term "Claims" shall also include, but is not limited to,
any cause of action, charges, claims, actions, causes of
action or liabilities of any kind or nature, whether known or
unknown, related to or arising out of employment and/or
association of Xxxxxx or with Tropical that they have ever had
or now have, or that any person or entity claiming through
them may have or claim to have, whether based on tort,
contract (express or implied) or any federal, state or local
law, statute or regulation, including, but not limited to any
claim under the Employee Retirement Income Security Act, 29
U.S.C. Section 1001 et seq.; the Family and Medical Leave Act,
29 U.S.C. Section 2611 et seq.; Consolidated Omnibus Budget
Reconciliation Act of 1986, "COBRA," 29 U.S. C. Section 1161
et seq.; Title VII of the Civil Rights Act of 1964, 42. U.S.C.
Section 2000 et seq., as amended; the Americans With
Disabilities Act (ADA), 42 U.S.C. Section 12101 et seq.; the
Florida's Whistleblower Statute, Fla. Stat. Xxx. Section
448.101 et seq.; the Fair Labor Standards Act; the Florida
Civil Rights Act, Fla. Stat. Xxx. Section 760.10 et seq. or
any similar state or local laws or ordinances prohibiting
discrimination, harassment or retaliation; any other claims
for personal injury, emotional distress, negligence, breach of
fiduciary duty, fraud, worker's compensation, invasion of
privacy, defamation, compensatory damages, punitive damages,
attorney's fees or costs; and any claims to incentive payments
or bonuses.
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E. Notwithstanding the above, the term "Claims" does not include,
and specifically excludes, any obligation of Tropical to
indemnify Xxxxxx under By-Laws of Tropical, and any obligation
under this Agreement.
F. The releases set forth in this Agreement shall become
effective as of the Effective Date specified above, upon the
execution of this Agreement by all Parties.
X. Xxxxxx and Tropical voluntarily and knowingly release and
discharge from any Claims, jointly and severally, each other
and each other's current, former and future agents, attorneys,
heirs, representatives, executors, employees, officers,
directors, partners, trustees, shareholders, subsidiaries,
successors, assigns, affiliates, beneficiaries, insurers,
sureties, indemnitors, guarantors, benefit or compensation
plans, and their respective current, former and future agents,
attorneys, heirs, representatives, executors, employees,
officers, directors, partners, trustees, shareholders,
subsidiaries, successors, assigns, affiliates, beneficiaries,
insurers, sureties, indemnitors, guarantors, and benefit or
compensation plans.
X. Xxxxxx and Tropical voluntarily and knowingly terminate any
employment agreements between them including, but not limited
to, the following document bearing signatures of Xxxxxx and
Tropical: (i) a document, dated April 15, 2002, entitled
"Employment Agreement", and (ii) a document dated September 1,
2001, entitled "Employment Agreement".
X. Xxxxxx represents that he has not filed any complaint, claim
or charge against Tropical with the Equal Employment
Opportunity Commission, Florida Commission on Human Relations,
the Federal or Florida Department of Labor, or with any other
local, state or federal agency or court. Xxxxxx agrees that,
if any such agency or court assumes the prosecution or
jurisdiction of any complaint or charge against Tropical,
Xxxxxx will immediately dismiss the complaint or charge and/or
will immediately request such agency or court to dismiss and
withdraw from the matter. In the event Xxxxxx fails or refuses
to undertake these obligations, Xxxxxx agrees that this
Agreement shall operate to effect Xxxxxx' dismissal or
withdrawal of such complaint, charge or claim and that Xxxxxx
will forward to Tropical any monies Xxxxxx receives from such
complaint, charge or claim.
J. The Parties represent and warrant that any Claim owned or held
by them at any time has not been assigned and has not been
transferred to any other person or entity.
K. The release of this Agreement evidences settlement of claims
which are disputed both as to liability and as to amount, and
the consideration recited above shall not be construed as an
admission of liability, as the same is now and has been
expressly
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denied.
L. Tropical shall remain obligated to indemnify Xxxxxx for any
Excise Tax "grossed up" and any related taxes, interest,
penalties and costs, including attorneys fees, imposed upon
Xxxxxx under Section 4999 of the Internal Revenue Code or
related sections as a result of any payment made to Xxxxxx
under this Agreement.
M. The term "Claims" also includes an indebtedness of $200,000,
previously incurred by Xxxxxx in favor of Tropical. To the
extent any or all of the forgiveness of this indebtedness
constitutes taxable income to Xxxxxx, Tropical will gross-up
that taxable income and pay to Xxxxxx or the United States
Internal Revenue Service the gross-up amount in excess of
$200,000.
5.A. All vested or non-vested options of Xxxxxx to purchase stock,
or to purchase any type of equity, debt, security or other
type of right or obligation, in or issued by Tropical, are
cancelled as of the Effective Date. Xxxxxx represents he has
exercised no such options on or after Wednesday, October 8,
2003
B. All nonvested restricted or nonvested other stock of Xxxxxx in
Tropical, which was awarded by Tropical to Xxxxxx, including
any type of equity, debt security or other right or
obligation, in or issued by Tropical is cancelled as of the
Effective Date. Xxxxxx represents he has not consummated the
purchase or ownership of any such stock on or after Wednesday,
October 8, 2003
6. For three (3) years after the Termination Date, Xxxxxx shall
not solicit for hire any individual who was an employee of
Tropical on the Effective Date.
7. Xxxxxx shall cooperate with Tropical and its counsel in
respect to any lawsuits, proceedings, investigations or other
types of actions involving Tropical, and shall provide and
deliver to Tropical and its counsel at reasonable times and
places, upon reasonable request of Tropical, truthful
information, and originals or duplicates of documents or
information whether electronic or otherwise, within the
custody, possession or control of Xxxxxx in respect to any
such lawsuits, proceedings, investigations, or other types of
actions, or in relation to Tropical.
8. The Litigation shall be immediately dismissed with prejudice
by stipulation of the parties in the Litigation.. A copy of
the Stipulation for Dismissal With Prejudice is attached as
Exhibit A.
9. Tropical is bound by an obligation of indemnity and of
advancement of expenses to the fullest extent permitted by the
law of the State of Florida, as the same may be in effect from
time to time, and as provided in its Bylaws, and as defined
and set forth in correspondence of Tropical to Xxxxxx dated
October 28, 2003.
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10. Tropical and Xxxxxx agree that each has reviewed this
Agreement and any rule of construction to the effect that
ambiguities are to be resolved against the drafter shall not
apply to the interpretation of this Agreement.
11. Tropical and Xxxxxx agree that they have each relied
exclusively upon independent counsel in connection with this
Agreement, which has been completely read and is readily
understood and voluntarily accepted.
12. In the event of breach of this Agreement by either Party, the
other Party shall be entitled at its option to seek the remedy
of specific performance exclusively before a state or federal
court of competent jurisdiction in Hillsborough County,
Florida.
13. This Agreement may be executed by any Party by execution of a
counterpart. A signature of a Party shall be effective by that
Party faxing or delivering a copy of the signed counterpart to
the other Party.
14. Except as otherwise expressly provided herein, and except for
the obligation of indemnity or advancement of expenses
referenced above, this Agreement contains the entire agreement
between the Parties and is only subject to modification by
written instrument signed by the Parties. No representation or
statement not contained herein, shall be binding on the
Parties.
15. The Parties agree that no inducements, statements or
representations have been made that are not set forth in this
Agreement and that the Parties did not rely upon any
inducements, statements or representations not set forth
herein.
16. This Agreement was negotiated and delivered within the state
of Florida, and shall be governed by Florida law.
17. Tropical represents and warrants to Xxxxxx that the officer
executing this Agreement has the requisite corporate authority
to do so after receiving all necessary and appropriate
approvals.
18. Xxxxxx is aware that this Agreement has significant legal
meaning, and he enters into this Agreement freely and
voluntarily.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the day and year indicated above.
Signed this 31st day of October, 2003.
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XXXXXX TROPICAL
/s/ Xxxxxxxxxxx X. Xxxxxx /s/ Xxxxxxx Xxxxx
-------------------------- --------------------------
Xxxxxxxxxxx X. Xxxxxx Xxxxxxx Xxxxx
Chief Executive Officer
Tropical Sportswear Int'l
Corporation
EXHIBIT A
IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT
IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
CIVIL DIVISION
TROPICAL SPORTSWEAR
INT'L CORPORATION,
Plaintiff,
vs. Case No: 03-7619
Division: I
XXXXXXXXXXX X. XXXXXX,
XXXXXXX X. XXXXXXXX and
XXXXXX X. XXXXXX, XX.,
Defendants.
___________________________________/
STIPULATION OF DISMISSAL WITH PREJUDICE
Plaintiff and Defendants, by undersigned counsel and pursuant to Fla.
R. Civ. P. 1.420(A)(1), stipulate to dismissal with prejudice of this action,
with each such party to bear that Party's own fees and costs.
Dated as of _____________________, 2003.
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Xxxxxx Xxxxxxx, III, FBN: 339385 __________
Xxxxxxx X. Xxxxxxx, FBN: 0181735 Xxxxxxxx X. Xxxxxx, FBN: 855510
Xxxxxx W. N. Xxxx, FBN: 335096 XXXXXX XXXXXX LLP
S. Xxxxxx Xxxx, FBN: 094374 000 X. Xxxxxx Xxxxx
XXXXXXX XXXXXXXXXX Xxxxx 0000
000 X. Xxxxxx Xx., Xxxxx 0000 Xxxxx, Xxxxxxx 00000-0000
Post Office Box 3273 (Zip 33601) Tel: 000-000-0000
Xxxxx, Xxxxxxx 00000 Fax: 000-000-0000
Tel: 000-000-0000/Fax: 000-000-0000 Attorney for Defendant,
Attorneys for Plaintiff Xxxxxx X. Xxxxxx, Xx.
____________ ____________
Xxxxx X. Xxxxxx, FBN: ________ Xxxxxxx X. Xxxxxxx, FBN: 0145579
14502 N. Xxxx Xxxxx XXXXXXX & XXXXXX, P.A.
Suite 300 Post Office Box 2175
Tampa, FL 33618 Xxxxx, XX 00000-0000
Tel: 000-000-0000 Tel: 000-000-0000
Fax: 000-000-0000 Fax: 000-000-0000
Attorney for Defendant, Attorney for Defendant, Xxxxxxx X.
Xxxxxxxxxxx X. Xxxxxx Xxxxxxxx
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished via U.S. Mail to Xxxxxxxx X. Xxxxxx, Esquire, Xxxxxx Xxxxxx LLP, 000
X. Xxxxxx Xx., Xxxxx 0000, Xxxxx, Xxxxxxx 00000-0000; Xxxxxxx X. Xxxx, Esquire,
Aman Law Firm, 00000 X. Xxxx Xxxxx, Xxxxx 000, Xxxxx, Xxxxxxx 00000; Xxxxxxx X.
Xxxxxxx, Esquire, Addison & Delano, P.A., Xxxx Xxxxxx Xxx 0000, Xxxxx, Xxxxxxx
00000-0000, and Xxxxxx Xxxxxxx, III, Xxxxxxx X. Xxxxxxx, Xxxxxx W. N. Xxxx, and
S. Xxxxxx Xxxx, Akerman Xxxxxxxxxx, Xxxx Xxxxxx Xxx 0000, Xxxxx, Xxxxxxx
00000-0000 this ____ day of _______, 2003.
_________________________________
Attorney
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