EXHIBIT 10.56
EMPLOYMENT SEPARATION AGREEMENT,
WAIVER AND RELEASE
THIS EMPLOYMENT SEPARATION AGREEMENT, WAIVER AND RELEASE (hereinafter
"this Agreement") is made and entered into between XXXXX ENTERPRISES,
INCORPORATED, and its subsidiaries, affiliates, directors, officers, employees,
representatives and agents (collectively referred to herein as the "Employer"),
and XXXXX X. XXXXXXX, XX., and his heirs, assigns, executors and administrators
(collectively referred to herein as "Employee") on the date set forth below.
WHEREAS the Employer and Employe desire to amicably end their
employment relationship and fully and finally settle all existing or potential
claims and disputes between them, whether known or unknown as of this date, the
parties agree that Employee's employment is terminated effective April 3, 2003.
The parties further agree as follows:
1. OBLIGATIONS OF THE EMPLOYER. In consideration of Employee's
agreement to the terms herein, the Employer shall provide to Employee the
following, which contains compensation and benefits which the Employer is not
otherwise legally obligated to provide:
a. Employee will be paid at the rate of his regular base salary
through June 30, 2003. Such pay, subject to all required withholdings, will be
paid on the regularly scheduled days for corporate payroll. From this amount,
Employer will deduct $3,146.89 USD, which represents repayment of certain
expenses of Employee previously paid by Employer in the amount of 2,690.81
Euros.
b. Employer has paid to Employee, in a lump sum, an amount equal
to a gross sum of $14,433.75, less all required withholdings, which represents
all of Employee's 138.16 hours of accrued but unused vacation as of the date of
termination.
c. Employer will pay the cost of COBRA health insurance
continuation from April 3, 2003 through June 30, 2003 for Employee and his
family. The obligation of Employer to pay this amount is dependent upon Employee
making a timely and valid election to receive COBRA benefits as set forth in
section 1 (h) below.
d. Employer will pay expenses associated with the re-patriation
of Employee, including expenses relating to the move of personal property, to
the United States, but only to the extent that such expenses are incurred prior
to July 15, 2003, and further provided that the reimbursement pursuant to this
section 1 (d) shall not exceed $15,000. In addition to the $15,000 limit set
forth above, Employer will pay the cost of two business class and two coach
class one way air fares from Amsterdam to Orlando, Florida USA, provided that
such travel is booked through Sykes Travel.
e. Employer will pay, through June 30, 2003, the monthly rent for
the house Employee is presently occupying in Amsterdam, the Netherlands, as well
as the monthly utility expenses for those utilities, which Employer has
customarily paid to date.
f. Employer will pay for one (1) relocating trip from the
Netherlands to Tampa, Florida, and return, for Employee, to include business
class airfare (provided that such arrangements are booked through Sykes Travel),
and a rental automobile and fuel for one week. No meals or lodging will be paid
for or reimbursed by the Employer. Such trip must be completed prior to June 30,
2003.
g. The parties mutually agree that the tax preparation and
equalization services provided to the Employee as was set forth in that certain
December 1, 1998 Letter of Understanding will continue to be provided for the
2002 tax year, and that any refund or payment due in connection with Employee's
Dutch return will be made to or by the Employer. Any refund or payment due in
connection with Employee's U.S. return will be made to or by
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the Employee. The parties mutually agree that no such services will be provided
for any period beginning on or after January 1, 2003.
h. In accordance with the provisions of the Consolidated Omnibus
Reconciliation Act of 1986 ("COBRA"), Employer is required to advise Employee
that upon separation of service, Employee may elect to continue, for a period of
up to eighteen (18) months, the same health insurance coverage, dental insurance
coverage, vision insurance coverage and prescription drug plan that is being
provided to Employee by Employer as of the date of this Agreement. Employee will
be notified of his rights under COBRA and the cost of such continuation of
coverage by letter. Employee must affirmatively elect such coverage in order to
take advantage of this right.
i. This Agreement, and the obligations of Employer, including the
payments required to be made pursuant to paragraphs a, c, d, e, f and g above,
shall not become effective, if at all, until the eighth (8th) day following the
date Employee executes this Agreement, so long as such execution is not revoked
by Employee pursuant to paragraph 2(b)(iv) below.
2. OBLIGATIONS OF EMPLOYEE. In consideration of the foregoing
special separation arrangements provided by the Employer, Employee agrees as
follows:
a. Employee agrees to release and forever discharge by this
Agreement the Employer from all liabilities, causes of actions, charges,
complaints, suits, claims, obligations, costs, losses, damages, injuries,
rights, judgments, attorneys' fees, expenses, bonds, bills, penalties, fines,
and all other legal responsibilities of any form whatsoever whether known or
unknown, whether suspected or unsuspected, whether fixed or contingent, whether
in law or in equity, including but not limited to those arising from any acts or
omissions occurring prior to the effective date of this Agreement, including
those arising by reason of any and all matters from the beginning of time to the
present, arising out of his past employment with, compensation during, and
separation from Employer. Employee specifically releases claims under all
applicable laws of The Netherlands, and all applicable United States state and
federal laws, including but not limited to, Title VII of the Civil Rights Act of
1964 as amended, the Fair Labor Standards Act, the Rehabilitation Act of 1973,
the Family Medical Leave Act, the Employee Retirement Income Security Act, the
Consolidated Omnibus Reconciliation Act of 1986, the Americans with Disabilities
Act, the Florida Civil Rights Act of 1992, the Workers' Compensation Act, the
Equal Pay Act, the Age Discrimination in Employment Act of 0000 (Xxxxx 00,
Xxxxxx Xxxxxx Code, Section 621, et seq.) ("ADEA"), as well as all common law
claims, whether arising in tort or contract.
b. In addition to the other provisions in this Agreement,
Employee acknowledges that the information in the following paragraphs is
included for the express purpose of complying with the Older Workers' Benefits
Protection Act, 29 U.S.C. Section 626(f):
i. I, Xxxxx X. Xxxxxxx Xx., was over 40 years of age
when I separated my employment and when I signed this Agreement. I realize there
are many laws and regulations prohibiting employment discrimination or otherwise
regulating employment or claims related to employment pursuant to which I may
have rights or claims, including the Age Discrimination in Employment Act of
1967, as amended (the "ADEA"). I hereby waive and release any rights or claims I
may have under the ADEA.
ii. By signing this Agreement, I state that I am
receiving compensation and separation benefits to which I was not otherwise
entitled. I am waiving and releasing all claims against Employer that I may have
based on my age. I am not waiving any claim or action under the ADEA based upon
rights or claims that may arise after the date I sign this Agreement.
iii. I am being given additional compensation and benefits
as contained in Section 1 hereof in exchange for the release and waiver of all
claims that I am agreeing to herein. The additional compensation and benefits
are in addition to anything of value to which I am already entitled.
iv. I was informed in writing that I could consult with
an attorney before signing this Agreement. I acknowledge that I was given the
opportunity to consider this Agreement for twenty-one (21) days before signing
it, and, if I sign it, to revoke it for a period of seven (7) days thereafter.
Regardless of when I signed
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this Agreement, I acknowledge that my seven-day period will not be waived. The
payments under paragraph 1. a, c, d, e, f and g above will not be made to me, if
at all, until after the seven-day revocation period expires.
c. Employee shall not disclose, either directly or indirectly,
any information whatsoever regarding any of the terms or the existence of this
Agreement or of any other claim Employee may have against the Employer, to any
person or organization, including but not limited to members of the press and
media, present and former employees of the Employer, companies who do business
with the Employer, or other members of the public. The only exceptions to
Employee's promise of confidentiality herein is that Employee may reveal such
terms of this Agreement as are necessary to comply with a request made by the
Internal Revenue Service, as otherwise compelled by a court or agency of
competent jurisdiction, as allowed and/or required by law, or as necessary to
comply with requests from Employee's accountants or attorneys for legitimate
business purposes.
d. Employee shall refrain from making any written or oral
statement or taking any action, directly or indirectly, which Employee knows or
reasonably should know to be disparaging or negative concerning the Employer
except as allowed or required by law. Employee also shall refrain from
suggesting to anyone that any written or oral statements be made which Employee
knows or reasonably should know to be disparaging or negative concerning the
Employer, or from urging or influencing any person to make any such statement.
This provision shall include, but not be limited to, the requirement that
Employee refrain from expressing any disparaging or negative opinions concerning
the Employer, Employee's separation from the Employer, any of the Employer's
officers, directors, or employees, or any other matters relative to the
Employer's reputation as an employer. Employee's promises in this subsection,
however, shall not apply to any judicial or administrative proceeding in which
Employee is a party or has been subpoenaed to testify under oath by a government
agency or by any third party.
e. Beginning on the date of this Agreement and
continuing at all times hereafter, Employee and Employer shall, without any
additional compensation except as provided herein, provide each other with full
cooperation and reasonable assistance and will take all reasonable actions and
execute such documents as reasonably necessary to affect a timely and seamless
transition to others of Employee's statutory directorships, statutory
shareholdings, statutory board of director positions and or statutory officer
positions, or any similarly situated positions, if any, held in any of the Xxxxx
Enterprises Incorporated companies, including any and all sister, parent or
subsidiary companies and will provide full cooperation and reasonable assistance
with Employer's defense of (i) any litigation against Employer, its officers,
its subsidiaries, or its affiliates pending as of the date hereof or (ii) any
other litigation against Employer, its officers, its subsidiaries, or its
affiliates arising out of or relating to any circumstance, fact, event, or
omission alleged to occur while Employee was employed by Employer. Employee
shall at all times promptly be reimbursed by Employer for any and all
out-of-pocket expenses, including travel expenses, that may be incurred by
Employee in providing such cooperation and assistance, and to the extent that
Employee provides any such assistance or cooperation, the Employee also shall be
compensated for his time in providing such cooperation and assistance at a rate
equivalent to a per diem based upon his base salary as in effect as of his date
of termination. Such cooperation and assistance shall include, but not be
limited to, access for research, being available for consultation, for
deposition and trial testimony, and for availability and execution of
discovery-related documents such as interrogatories, affidavits, requests for
production, requests for admissions, and responses to each, as deemed necessary.
Employee and Employer further agree to provide their good will and good faith in
providing honest and forthright cooperation in all other aspects of their
defense of any such litigation.
f. Employee will, on or before June 30, 2003, vacate the house
Employee currently occupies (which house is leased by the Employer), leaving it
in the condition required by the lease agreement upon termination.
g. Employee represents and warrants that he has filed expense
reports with the Employer for all expenses incurred by Employee on behalf of
Employer and that there are no additional expenses for which Employee will seek
reimbursement.
3. TERMINATION AND RECOVERY OF BENEFITS. The Employer is entitled
to recover the payments paid to Employee under paragraph l of this
Agreement if the Employer reasonably relied upon any misrepresentation of
Employee in agreeing to undertake those obligations.
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4. NON-ADMISSION. Neither this Agreement, nor anything
contained herein, is to be construed as an admission by the Employer or
Employee or as evidence of any liability, wrongdoing or unlawful conduct
whatsoever.
5. SEVERABILITY. If any provision of this Agreement is
invalidated by a court of competent jurisdiction, then all of the remaining
provisions of this Agreement shall continue unabated and in full force and
effect.
6. ENTIRE AGREEMENT. This Agreement contains the entire
understanding and agreement between the parties and shall not be modified
or suspended except upon express written consent of the parties to this
Agreement. Employee represents and acknowledges that in executing this
Agreement Employee does not rely and has not relied upon any representation
or statement made by the Employer or its agents, representatives or
attorneys which is not set forth in this Agreement.
7. SUPERSEDES PAST AGREEMENTS. Except as expressly provided
herein, this Agreement supersedes any previous employment agreements,
contracts, or understandings, whether written or oral, between Employee and
the Employer; specifically including but not limited to that certain letter
from the Employer to the Employee dated April 3, 2003. Provided, however,
those portions of that certain Employment Agreement dated the 6th day of
March, 2002 (the "Employment Agreement"), which by its terms are intended
to survive any termination of that agreement, specifically including
sections 4 and 5 thereof, shall survive and remain binding upon Employee in
accordance with their terms. Provided, however, notwithstanding sections 4
and 5 of the Employment Agreement, the Employer agrees that Employee may
seek and accept employment with Service Zone, Inc., Design Technology Ltd.
(d/b/a Transcom ISP), Sitel Corporation or ClientLogic Corporation
(collectively referred to as the "Excepted Corporations"). In the event
that Employee accepts employment with any of the Excepted Corporations, all
restrictions set forth in sections 5(c) (3), (4), (5) and (6) of the
Employment Agreement shall remain in effect, and Employee agrees that he
will obtain a written statement from the Excepted Corporation acknowledging
that Employee is bound by these restrictive covenants. Employee expressly
admits and agrees that this Agreement provides compensation and benefits in
lieu of any amounts that Employee could have received under any prior
agreements or understandings with Employer. In the event that this
Agreement is not executed by Employee, or in the event Employee executes
this Agreement, but revokes his acceptance prior to the expiration of the
seven (7) day period referenced in paragraph 2(b)(iv) above, that certain
letter from Employer to Employee dated April 3, 2003 shall remain in full
force and effect.
8. GOVERNING LAW. This Agreement shall be governed by the laws
of the State of Florida.
9. ATTORNEY'S FEES. In any action brought to enforce this Agreement,
the party in whose favor a judgment or decree has been rendered shall be
entitled to recover costs and attorney's fees expended in any action to
enforce the terms of this Agreement (including seeking injunctive relief or
recision), or to defend a claim, lawsuit or other type of action which has
been waived herein from the non-prevailing party.
10. EFFECTIVE DATE. This Agreement may be revoked by the
Employee for a period of seven (7) days following the execution of the
Agreement, and the Agreement shall not become effective or enforceable
until the revocation period has expired.
IN WITNESS WHEREOF, and intending to be legally bound, the Employer by
its authorized representative, and Employee, execute this Employment
Separation Agreement, Waiver and Release, by signing below voluntarily and
with full knowledge of the significance of all its provisions.
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PLEASE READ CAREFULLY. THIS EMPLOYMENT SEPARATION AGREEMENT, WAIVER
AND RELEASE INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
Executed at Amsterdam, The Netherlands, this 22nd day of May, 2003.
/s/ Xxxxx X. Xxxxxxx Xx.
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Xxxxx X. Xxxxxxx Xx.
Executed at Xxxxx Enterprises, Incorporated, Tampa Headquarters, this
9th day of June, 2003,
XXXXX ENTERPRISES, INCORPORATED
BY: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
Senior Vice President, Human Resources
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