EXHIBIT 10.3
[QUANTA LOGO OMITTED]
SEPARATION AGREEMENT AND GENERAL RELEASE
Quanta U.S. Holdings Inc., its subsidiaries and affiliates (collectively
referred to as "Quanta") and Xxxx X. Xxxx, his heirs, executors, administrators,
successors, and assigns (collectively referred to as "Employee"), agree that:
1. LAST DAY OF EMPLOYMENT. Employee's last day of employment with Quanta will
be July 31, 2006, herein referred to as the "termination of employment
date". For the purpose of the Consolidated Omnibus Budget Reconciliation
Act ("COBRA"), 29 U.S.C. ss. et seq., the END DATE (as defined in Section
2(a) below) shall serve as the "qualifying event" for Employee's rights
under COBRA. In order to receive any payments described in Section 2 below
("Consideration"), Employee must be actively employed by Quanta on July 31,
2006. In the event Employee accepts another position and leaves Quanta
prior to July 31, 2006, Employee will forfeit all severance payments as
well as payments for any remaining time left in the notification period.
2. CONSIDERATION. In consideration for signing this Separation Agreement and
General Release (the "Agreement") and for compliance with the promises made
herein and subject to the conditions contained in this Agreement, Quanta
agrees:
a. to provide 12 months of severance pay to Employee to be paid
at the Employee's discretion, either in semi-monthly payments of
$14,583.33 less applicable federal, state and local taxes, and
other deductions, beginning August 1, 2006 and ending July 31,
2007 (the "severance period"), or in a lump sum payment in the
amount of $350,000.00 less applicable federal, state and local
taxes, and other deductions.
b. to continue to subsidize Employee's medical and dental
insurance benefits through the end of the severance period,
regardless of the payment method chosen in section 2(a) above, on
the same basis as for active employees of Quanta.
c.. to pay Employee any other amounts required under state or
federal regulation or law including but not limited to payment
for all Employee's accrued but unused Vacation and/or Paid Time
Off (PTO) as of the termination of employment date.
3. NO CONSIDERATION ABSENT EXECUTION OF THIS AGREEMENT. Employee understands
and agrees that he would not receive the consideration specified in Section
2 above, except for his execution of this Agreement and the fulfillment of
the promises contained herein. Employee agrees and acknowledges that the
payment provided to him pursuant to this Agreement is equal to payment,
benefit or other thing of value to which he would otherwise be entitled to
under prior agreements (written or oral) between him and Quanta.
4. EMPLOYEE'S GENERAL RELEASE OF CLAIMS. For and in consideration of the
payments to be made and for other valuable consideration to be provided to
Employee pursuant to this Agreement, Employee for himself, his heirs,
executors, administrators, trustees, legal representatives, successors and
assigns (hereinafter collectively referred to as "Releasors"), hereby
knowingly and voluntarily releases and forever discharges Quanta and any of
its past, present or future parent entities, partners, subsidiaries,
affiliates, divisions, employee benefits and/or pension plans or funds,
successors and assigns of each and any of its or their past, present or
future officers, directors, attorneys, agents, trustees, administrators,
employees, or assigns, in both their representative and individual
capacities, (hereinafter collectively referred to as "Releasees") from any
and all claims, demands, causes of action, debt or liabilities of any kind
(upon any legal or equitable theory, whether contractual, common-law,
statutory, federal, state, local or otherwise), whether known or unknown,
asserted or unasserted, by reason of any act, omission, transaction,
practice, plan, policy, procedure, conduct, occurrence or other matter
(collectively "claims") which Releasors may have against the Releasees,
from the beginning of time up to and including the date of the execution of
this Agreement including, but not limited to, any alleged violation of:
Title VII of the Civil Rights Act of 1964, as amended;
The Civil Rights Act of 1991;
Sections 1981 through 1988 of Title 42 of the United States Code, as
amended;
The Employee Retirement Income Security Act of 1974, as amended;
The Immigration Reform and Control Act, as amended;
The Americans with Disabilities Act of 1990, as amended;
The Age Discrimination in Employment Act of 1967, as amended;
The Workers Adjustment and Retraining Notification Act, as amended;
The Occupational Safety and Health Act, as amended;
The Family and Medical Leave Act;
The Fair Labor Standards Act;
The Sarbanes Oxley Act;
The New York Human Rights Act;
The New York City Human Rights Law;
The New York Equal Pay Act;
The New Yorkers with Disabilities Act;
The New York AIDS Testing Law;
New York Wage Payment and Hours Law;
New York Occupational Safety and Health Laws;
New York Statutory Provisions Regarding Retaliation and Discrimination for
Filing a Workers' Compensation Claim;
Any other federal, state or local civil or human rights law or any other
local, state or federal law, regulation or ordinance;
Any public policy, contract, tort, or common law; or
Any allegation for costs, fees, or other expenses including attorneys' fees
incurred in these matters.
This Paragraph does not include a release of (1) any rights Employee may
have with respect to the 401(k) account he possessed through the Company,
or (2) Employee's rights under this Agreement.
5. NON-SOLICITATION. Employee agrees (either alone or jointly with or on
behalf of others whether directly or indirectly) not to, without prior
written consent from Quanta's General Counsel or Quanta's Director of Human
Resources, (1) solicit, endeavor to solicit, hire or cause to be hired any
officer or employee of the Company or its affiliates away from employment
with any such entity, (2) solicit, endeavor to solicit, hire or cause to be
hired any person who was an officer or employee of the Company or its
affiliates at the effective date of this agreement, or (3) violate, or
cause others to violate, the terms of any employment agreement or other
written arrangements between any officer or employee and the Company or any
of its affiliates for a period of one (1) year from the termination of
employment date.
6. AFFIRMATIONS AND COVENANTS. Employee represents and warrants that, neither
he, nor anyone acting on his behalf, has made, filed, is party to, or will
make or file any charge, complaint or suit against any of the Releasees
with any federal, state or local court or agency. In the event that any
action, suit, claim, charge or proceeding is brought by any government
agency, putative class representative or other third party against Quanta,
Employee shall, except to the extent required or compelled by law, legal
process, or subpoena, refrain from participating, providing assistance,
testifying, or producing documents therein. In the event Employee is
ordered to participate, provide assistance, testify, or produce documents
by a court, agency or regulatory authority, Employee shall only do so after
he has given Quanta's General Counsel written notice, together with all
supporting legal papers or documents served upon his, within five business
days of his receipt of such notice. Employee further affirms that he has
been paid and/or has received all leave (paid or unpaid), compensation,
wages, bonuses, commissions, and/or benefits to which he may have been
entitled and that no other leave (paid or unpaid), compensation, wages,
bonuses, commissions and/or benefits are due to him, except with respect to
amounts pursuant to Section 2 of this Agreement and any compensation
(including salary and benefits) due to Employee for employment services
performed up to the termination of employment date. Employee furthermore
affirms that he has no known workplace injuries or occupational diseases
and has been provided and/or has not been denied any leave requested under
the Family and Medical Leave Act.
7. CONFIDENTIALITY. Employee shall hold in a fiduciary capacity for the
benefit of Quanta all secret, proprietary or confidential information,
knowledge or data relating to Quanta and its business that he has obtained
that is not public knowledge (other than as a result of Employee's
violation of this Section 7) ("Confidential Information"). Moreover, both
parties agree to hold the terms of this Agreement as confidential and agree
not to disclose the terms of this Agreement except as required
by law or regulation. This provision does not prevent Employee from
divulging the fact or terms of this Agreement to his spouse, tax advisor,
and/or an attorney with whom Employee chooses to consult regarding his
consideration of this Agreement. Employee shall not communicate, divulge or
disseminate Confidential Information at any time, except with the prior
written consent of Quanta or as otherwise required by law or legal process
or in the carrying out of his duties under this Agreement. The parties
understand and agree that this confidentiality provision is a material term
of this Agreement.
8. NON-DISPARAGEMENT. Employee agrees that he shall not make, participate in
the making of, or encourage or facilitate any other person to make, any
statements, written or oral, which disparage or defame the goodwill,
reputation of, or which embarrass Quanta or any of its respective present,
former or future directors, officers, executives and/or employees. Employee
further agrees that he shall not make, participate in the making of, or
encourage or facilitate any other person to make, any statements, written
or oral, which disparage, or defame the goodwill, reputation of, or which
embarrass shareholders. Employee further agrees not to make any statements,
written or oral, relating to the terms of the termination of his employment
or any non-public and/or confidential aspects of the business of Quanta,
except as may be required by internal company investigation, court order or
subpoena after providing Releasees with notice as provided for in Section 6
above. Any breach of this provision shall constitute a material breach of
this Agreement and shall entitle Quanta to recover all amounts paid to him
under this Agreement. Employee and Quanta agree that such repayment by
Employee is not, and is not intended to be, a penalty, constitutes a
reasonable estimate of the damages that Quanta would suffer as a
consequence of such a breach by Employee and that such damages would
otherwise be very difficult to calculate. In addition, Quanta reserves its
right to pursue any and all additional remedies for such breach, including
the right to obtain injunctive relief to enforce Employee's obligations
under this Section. This Section shall not be interpreted to prevent
Employee from providing truthful information in accordance with any
internal Quanta investigation or to any regulatory, judicial,
administrative or other governmental authorities as may be required by law
or governmental regulation.
Quanta agrees, for its officers and directors, that it shall not make,
participate in the making of, or encourage or facilitate any other person
to make, any statements, written or oral, which criticize, disparage, or
defame the goodwill, reputation of, or which embarrass Employee or which
relate to the termination of Employee's employment other than as provided
in this Agreement. Quanta further agrees to instruct its human resources
department or equivalent functioning body to provide any prospective
employer of Employee with Employee's dates of employment, title and salary
as of the termination date.
9. COOPERATION. Employee understands that Quanta may need to contact him to
obtain information regarding various business matters. Employee agrees to
respond in a timely and reasonable fashion to Quanta's requests for such
information. Employee also agrees to cooperate fully with Quanta with
respect to any business matter, including but not limited to ongoing or
future litigation or investigation, regulatory
or otherwise, about which it is reasonably believed that Employee has
knowledge, or with which he was involved, as a result of or during his
employment with Quanta. Such cooperation may include, without limitation,
providing information, meeting with Quanta representatives, or testifying
on Quanta's behalf. Nothing in this paragraph shall require Employee to
take any action prejudicial to his legal or economic interests. Quanta
shall reimburse Employee for any necessary and reasonable out of pocket
expenses incurred by him in connection with his assistance and cooperation
hereunder (including travel, accommodations and reasonable legal fees and
expenses incurred) as well as any realized economic losses, including but
not limited to use of vacation or personal time off from future employers
or standard hourly rates if Employee is self-employed. Employee agrees to
such cooperation for a term of three (3) years following the termination of
employment date.
10. GENERAL INDEMNIFICATION. The Company agrees that if the Employee is made a
party, or is threatened to be made a party, to any pending or threatened
action, suit or proceeding, whether civil, criminal, administrative or
investigative (each, a "Proceeding"), for actions during the time of his
employment, by reason of the fact that he is or was an officer or employee
of the Company or is or was serving at the request of the Company as an
officer, member, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, including service with respect to
employee benefit plans, the Employee shall be indemnified and held harmless
by the Company to the fullest extent permitted or authorized by applicable
law and the Company's certificate of incorporation or bylaws, against all
cost, expense, liability and loss reasonably incurred or suffered by the
Employee in connection therewith, including, without limitation, attorneys'
fees and disbursements and judgments, and the Company shall advance
expenses in connection therewith, to the fullest extent permitted or
authorized by applicable law and the Company's certificate of incorporation
or bylaws. Such indemnification shall continue as to the Executive even if
he has ceased to be a member, employee or agent of the Company or other
entity and shall inure to the benefit of the Employee's heirs, executors
and administrators. The Company agrees to continue and maintain a
directors' and officers' liability insurance policy covering the Employee
to the extent the Company provides such coverage for its other executive
officers. Quanta agrees that if Employee sues Quanta for a breach of its
obligations to make payments set forth in Section 2, and Employee obtains a
final judgment in his favor in such action, Quanta will pay Employee the
attorneys' fees he reasonably incurred in prosecuting such action.
11. RETURN OF PROPERTY. Employee shall permit a representative of Quanta to
inspect any material to be removed from Quanta's offices. By the Date of
Termination (or shortly thereafter), Employee shall surrender to Quanta all
property of Quanta in his possession, including, without limitation, any
and all intellectual property, including models used in Quanta's business,
documents, notes, records, manuals, notebooks, computers, computer
programs, cellular phones, Blackberries, security key cards, credit cards,
keys, pass cards and files, papers, electronically stored information and
documents kept or made by Employee in connection with his employment.
Anything to the contrary notwithstanding, and in all cases regardless of
whether the information is retained in original form, as a copy,
electronically or otherwise,
Employee shall be entitled to retain (a) papers and materials of a personal
nature, including, without limitation, photographs, correspondence,
personal diaries, calendars and rolodexes, files relating to his personal
affairs and personal phone books, (b) information showing his compensation
or relating to reimbursement of expenses, and (c) information he reasonably
believes may be needed for his personal tax purposes. By separate document,
Employee will certify that he has complied with this Section 11 of the
Agreement. Should Quanta believe that an item or document has not been
returned, it shall notify Employee of such belief in writing and provide
Employee 48 hours from receipt of said notice to return the item or
document articulated, make a certification that it has been destroyed or
surrendered.
12. REVOCATION AND EFFECTIVE DATE. Employee acknowledges that he: (a) has
carefully read this Agreement in its entirety; (b) has had the opportunity
to take up to forty five (45) days to consider it and to consult with
independent legal counsel about it (if he wished to do so), but may execute
it at any time during that time period; (c) fully understands the terms and
conditions of this Agreement; and (d) is signing this Agreement knowingly
and voluntarily. Employee may revoke this Agreement for a period of seven
(7) calendar days following the day he executes this Agreement. Any
revocation within this period must be submitted, in writing, to Quanta's
Director of Human Resources and state, "I hereby revoke my acceptance of
our Agreement." The revocation must be personally delivered to Quanta's
Director of Human Resources or mailed to Quanta's Director of Human
Resources so that it is delivered to him within seven (7) calendar days of
execution of this Agreement. This Agreement shall not become effective or
enforceable until the revocation period has expired. If the last day of the
revocation period is a Saturday, Sunday, or legal holiday in New York, the
revocation period shall not expire until the next following day which is
not a Saturday, Sunday, or legal holiday.
13. GOVERNING LAW AND INTERPRETATION. This Agreement shall be governed and
conformed in accordance with the laws of the state of New York without
regard to its conflict of laws provision. In the event Employee or Quanta
breaches any provision of this Agreement, Employee and Quanta affirm that
Employee or Quanta may institute an action to specifically enforce any term
or terms of this Agreement. Should any provision of this Agreement be
declared illegal or unenforceable by any court of competent jurisdiction
and cannot be modified to be enforceable, excluding the general release
language, such provision shall immediately become null and void, leaving
the remainder of this Agreement in full force and effect.
14. NO ADMISSION OF WRONGDOING. The parties agree that neither this Agreement
nor the furnishing of the consideration for this Agreement shall be deemed
or construed at any time for any purpose as an admission by either party of
any liability or unlawful conduct of any kind. The parties further agree
that this Agreement may only be used as evidence in a proceeding where one
of the parties seeks to enforce or defend or claim a breach of the terms of
this Agreement.
15. AMENDMENT. This Agreement may not be modified, altered or changed except
upon express written consent of both parties specifically stating the
intent to modify this Agreement.
16. ENTIRE AGREEMENT. This Agreement sets forth the entire agreement between
the parties hereto and fully supersedes any and all prior agreements or
understandings between the parties. Employee acknowledges that he has not
relied on any representations, promises, or agreements of any kind made to
him in connection with his decision to accept this Agreement, except for
those set forth in this Agreement.
17. APPLICABLE DATA. Employee acknowledges that he has been provided with, and
that he and his counsel have reviewed, a list of the job titles and ages of
all individuals in Employee's division whose positions are being eliminated
effective July 31, 2006, as well as a list of job titles and ages of all
individuals in Employee's division whose positions are not being
eliminated, prior to executing this Agreement.
EMPLOYEE HAS BEEN ADVISED THAT HE HAS FORTY-FIVE (45) DAYS TO REVIEW THIS
CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE AND HAS BEEN ADVISED
TO CONSULT WITH AN ATTORNEY PRIOR TO EXECUTION OF THIS SEPARATION AGREEMENT
AND GENERAL RELEASE. HAVING ELECTED TO EXECUTE THIS SEPARATION AGREEMENT
AND GENERAL RELEASE, TO FULFILL THE PROMISES AND TO RECEIVE THE SUMS AND
BENEFITS IN SECTION 2 ABOVE, EMPLOYEE FREELY AND KNOWINGLY, AND AFTER DUE
CONSIDERATION, ENTERS INTO THIS CONFIDENTIAL SEPARATION AGREEMENT AND
GENERAL RELEASE INTENDING TO WAIVE, SETTLE AND RELEASE ALL CLAIMS EMPLOYEE
HAS OR MIGHT HAVE AGAINST QUANTA.
IN WITNESS WHEREOF, the parties hereto knowingly and voluntarily executed
this Confidential Separation Agreement and General Release as of the date set
forth below:
AGREED AND ACCEPTED:
By: /s/ Xxxx X. Xxxx
----------------------------
XXXX X. XXXX
EMPLOYEE
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
On this 7th day of August 2006, before me personally came Employee known to me
to be the person described and who executed the foregoing Agreement and who duly
acknowledged to me that he executed the same.
/s/ Xxxxx X. Xxxxxxx
-------------------------
Notary Public
QUANTA U.S. HOLDINGS, INC.
By: /s/ Xxxx X. Xxxxx By: /s/ Xxxxxx Xxxxxxxxxx III
-------------------------- -------------------------------
XXXX X. XXXXX XXXXXX XXXXXXXXXX III
DIRECTOR, HUMAN RESOURCES INTERIM CHIEF EXECUTIVE OFFICER
STATE OF NEW YORK ) STATE OF NEW YORK )
) SS.: ) SS.;
COUNTY OF NEW YORK ) COUNTY OF NEW YORK )
On this 7th day of August 2006, before me personally came Xxxx X. Xxxxx known to
me to be the person described and who executed the foregoing Agreement on behalf
of Quanta U.S. Holdings, Inc. and who duly acknowledged to me that he executed
the same and was duly authorized to do so.
/s/ Xxxxx X. Xxxxxxx
-------------------------
Notary Public
On this 7th day of August 2006, before me personally came Xxxxxx Xxxxxxxxxx III
known to me to be the person described and who executed the foregoing Agreement
on behalf of Quanta U.S. Holdings, Inc. and who duly acknowledged to me that he
executed the same and was duly authorized to do so.
/s/ Xxxxx X. Xxxxxxx
-------------------------
Notary Public
