EXHIBIT 10.27
SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release ("Agreement") is entered into
this 24th day of May, 2001, by and between Xxxx Xxxxxxx ("Xxxxxxx"), on the one
hand, and XxXxx.xxx, Inc., a Delaware corporation ("Finet"), on the other hand.
RECITALS
WHEREAS, Cossano entered into an Employment and Compensation
Agreement, dated December 28, 1999, with FiNet to become President and Chief
Executive Officer of FiNet (the "FiNet Employment Agreement"); and
WHEREAS, Cossano has chosen to voluntarily resign from his positions
as President and Chief Executive Officer of FiNet and as a director on FiNet's
Board of Directors and, also, his positions as President and Chief Executive
Officer of Monument Mortgage, Inc., FiNet's wholly owned subsidiary
("Monument"), and as a director on Monument's Board of Directors; and
WHEREAS, Cossano has asked for and FiNet has agreed to provide certain
consideration, as set forth below, in order to assist him with his transition;
and
WHEREAS, FiNet and Cossano are hereinafter sometimes collectively
referred to as "Party" or "Parties" for purposes of this Agreement; and
NOW THEREFORE, the Parties, in consideration of the following
conditions, covenants, and promises agree as follows:
AGREEMENT
A. MONETARY CONSIDERATION
1. Under the terms of Section 10(b) of the FiNet Employment
Agreement, Cossano is entitled to receive six months of base salary as severance
pay in an amount of One Hundred Eighty Seven Thousand Five Hundred Dollars
($187,500). In addition, Cossano is entitled to receive a bonus in an amount of
Six Thousand Two Hundred Fifty Dollars ($6,250),
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which together equals and totals One Hundres Ninety Three Thousand seven Hundred
Fifty Dollars ($193,750) ("Severance Amount"). Since his resignation, Cossano
has received payments equal to his monthly base salary under FiNet's normal
payroll practices. Upon FiNet's receipt of an executed copy of this Agreement by
Cossano and the time periods for revoking the waivers and releases as set forth
in Section C herein have expired, FiNet will pay within seven (7) business days,
in a lump sum, the remaining portion of the Severance Amount which has not
already been paid to Cossano during the transition period following his
resignation.
2. As to the lump sum payment of the remaining portion of the
Severance Amount which has not already been paid to Cossano in the form of
salary, FiNet shall make no deduction for tax withholdings and shall not issue a
Form W-2, but shall issue a Form 1099 with respect to this payment. Each Party
acknowledges and agrees that the other Party has made no representation
regarding the tax consequences of any amounts paid or received by them pursuant
to this Agreement. Cossano agrees to pay his share of all FICA taxes and to pay
all federal and state income taxes owed by him as a result of his receipt of
this payment. Cossano agrees to defend, indemnify and hold harmless FiNet and
its subsidiaries, from any liability (including attorneys' fees, costs, interest
and penalties) required of FiNet or its subsidiaries by any governmental agency
as a result of Cossano's failure to pay any taxes owed by him as a result of
this payment. FiNet agrees to give Cossano notice of any inquiry, claim or
demand from any governmental agency concerning the payment of this sum prior to
incurring any related defense costs.
3. Cossano intends for payment of Severance Amount to be the total
sum received by Cossano and his former, current, past or future family members,
wives, children, spouses, partners, representatives, agents, principals,
attorneys, dependents, employees, insurers, physicians, successors, affiliates,
estates, executors, corporations, partners, members, heirs and assigns, or any
of them, in connection with, relating to, or arising out of the matters released
in this Agreement. No additional monetary sums or stock or options or warrants
of any kind or amount, including, but not limited to, economic or noneconomic
damages of any kind, tort
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damages, contract damages, attorneys' fees, costs, medical expenses, wages,
bonuses, liens or taxes are to be paid to Cossano or his partners,
representatives, agents, principals, attorneys, dependents, employees, medical
providers, insurers, successors, affiliates, estates, executors, firms, family
members, corporations, wives, partners, children, grandchildren, heirs and
assigns, or any of them, by FiNet or its respective past, current or future
partners, parents, subsidiaries, affiliates, predecessors, principals, joint
venturers, franchisees, franchisees' employees, independent contractors,
representatives, successors, assigns, owners, employees, attorneys, officers,
directors, shareholders, agents, heirs, family members, executors, indemnitees,
indemnitors, insureds and insurers.
B. NO ADMISSION OF LIABILITY
Cossano hereby acknowledges and agrees that the provisions of this
Agreement are made in compromise, and that by entering into this Agreement and
by performing the obligations hereunder, no Party or other person or entity
concedes or admits that any allegation, charge, claim or fact. Cossano further
acknowledges and agrees that neither the execution of this Agreement nor
anything contained herein is intended to be nor shall be construed for any
purpose by any person or entity whatsoever as an admission by any Party of any
liability of any kind or nature whatsoever.
C. RELEASE
1. Except as otherwise provided herein, Cossano, in each and every
one of his respective capacities, on behalf of himself, and on behalf of any
person or entity who could claim by, through or under Cossano, including, but
not limited to, his respective past, present or future partners,
representatives, agents, partners, principals, attorneys, dependents, employees,
employers, health care providers, medical providers, insurers, successors,
affiliates, estates, executors, wives, family members, children, spouses,
grandchildren, parents, heirs and assigns, (collectively, "Releasors") hereby
releases and forever discharges FiNet and its respective present, past and
future partners, direct and indirect subsidiaries, affiliates, predecessors,
principals, joint venturers, franchisees, franchisees' employees, independent
contractors,
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indemnitors, indemnitees, family members, heirs, representatives, estates,
executors, dependents, parents, children, spouses, physicians, successors,
assigns, owners, employees, employers, attorneys, officers, directors,
shareholders, agents, unit holders, insureds and insurers, and all persons
acting by, through, or in any concert with any of them, and each of them,
(collectively referred to as "Releasees"), individually and jointly, from any
and all charges, complaints, promises, agreements, controversies, suits, rights,
demands, costs, losses, debts, actions, any tort, contract, statutory or other
causes of action, claims, judgments, obligations, damages, liabilities and
expenses, including, but not limited to, any claims for attorneys' fees and
costs, of whatever kind and character, known and unknown, suspected and
unsuspected, anticipated and unanticipated ("Claim" or "Claims"), which
Releasors, and each of them, now has, owns or holds, or claims to have owned or
held, against each or any of the Releasees on or before the Date of the
Execution of this Agreement, or may have against any of the Releasees in the
future based upon, arising out of, or relating to any act or conduct by any of
the Releasees occurring on or before the Date of Execution of this Agreement.
2. This release of all known and unknown, suspected or unsuspected,
anticipated or unanticipated Claims specifically includes without limitation:
(a) any Claims alleged or referred to, directly or indirectly, or in
any way connected with, or arising out of, or which may hereafter be claimed to
arise out of the FiNet Employment Agreement;
(b) any Claims for FiNet shares, options or warrants, salary,
benefits, bonuses, including, but not limited to, any Claims for shares, options
or warrants, salary, benefits, bonuses pursuant to the FiNet Employment
Agreement,
(c) any Claims arising out of, in connection with or relating to
events or circumstances involving FiNet or Monument which took place prior to or
during Cossano's tenure with FiNet or Monument; and
(d) any Claims arising out of, in connection with or relating to
Cossano's recruitment, hiring, relocation, employment or termination or
resignation of employment with
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FiNet or Monument including, but not limited to, claims of: (i) employment
discrimination, harassment or retaliation arising out of or relating to Title
VII of the Civil Rights Act of 1964, as amended (42 U.S.C.A. Section 2000 ET
SEQ.), the federal Americans With Disabilities Act (42 U.S.C.A. Section 12101 et
seq.), the California Fair Employment and Housing Act (California Government
Code section 12900 ET SEQ.), the federal Occupational Safety and Health Act of
1970 (29 U.S.C.A. Section 651 ET SEQ.), the California Occupational Safety and
Health Act of 1973 (California Labor Code section 6300, ET SEQ.), the federal
Family and Medical Leave Act of 1993 (29 U.S.C. Section 2601 ET SEQ.), Labor
Code section 132a, or the United States and/or California Constitution
(specifically including any claims for violation of Article I, Section 1 and/or
8); or (ii) violation of the California Labor Code (specifically including any
claims for disputed compensation and vacation pay), or the federal Fair Labor
Standards Act and the federal Equal Pay Act of 1963 (29 U.S.C.A. Section 201 ET
SEQ.); or (iii) violation of the Confidentiality of Medical Information Act
(California Civil Code section 56 ET SEQ.); for retirement benefits under the
Employee Retirement Income Security Act (Title 29 U.S.C.A. Section 1000 ET
SEQ.); benefits under the California workers' compensation laws relating to
Cossano's recruitment, hiring, employment, termination, resignation of
employment with FiNet or Monument, or (iv) any other tort, statutory or contract
claim arising under federal, state or local statutes, regulations, ordinances or
common law, including but not limited to: RICO claims, RESPA claims, whistle
blower claims, other statutory claims, constructive discharge claims, wrongful
discharge in violation of public policy claims, defamation claims, invasion of
privacy claims, emotional distress claims, loss of consortium claims,
intentional or negligent interference with prospective economic advantage
claims, and misrepresentations claims.
3. It is expressly understood by the Releasors, and each of them,
that the release given by the Releasors, and each of them, pursuant to this
Agreement, includes the release of all Claims, known or unknown, anticipated or
unanticipated, suspected or unsuspected, which the Releasors, and each of them,
may have against the Releasees, and each of them, arising prior to the Date of
Execution of this Agreement.
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4. The Releasors, and each of them, expressly declare that they have
read, understood and knowingly waived any and all rights each of them may have
under the provisions of California Civil Code Section 1542 and any comparable
federal or state statute or rule of law. California Civil Code Section 1542
provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR.
5. In this connection, the Releasors, and each of them, hereby
agree, represent and warrant that they realize and acknowledge that factual
matters now unknown may have given or hereafter may give rise to Claims, causes
of action, demands, debts, damages, costs, losses and expenses which are now
unknown, unanticipated and unsuspected, and the Releasors, and each of them,
agree and represent that this Release has been negotiated and agreed upon in
light of this realization, and that the Releasors, and each of them,
nevertheless, hereby intend to assume such risk and to release, discharge and
acquit the Releasees, and each of them, from any such known or unknown,
anticipated or unanticipated, suspected or unsuspected Claims, causes of action,
demands, debts, controversies, damages, costs, fees, losses and/or expenses
which are in any way related to the matters described hereinabove or otherwise
and which accrued by virtue of any act or omission which occurred prior to the
Date of Execution of this Agreement.
6. The general release contained in this Agreement specifically
includes a waiver and release of all claims which Cossano may have under the
federal Age Discrimination In Employment Act, as amended, 29 U.S.C. Section 621,
ET. SEQ. (hereinafter referred to as "ADEA") or under the federal Americans With
Disabilities Act (42 U.S.C.A. Section 12101 et seq. ("ADA") based on his
employment with Finet, or the cessation of his employment with Finet, or any act
or event or omission occurring on or before the date on which Employee
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executes this Agreement. The ADEA and ADA releases contained herein does not
cover rights or claims which may arise after the date on which Cossano signs
this Agreement. By signing this Agreement, Employee acknowledges and agrees that
he has been advised to consult with an attorney before signing this Agreement;
that he has up to twenty-one (21) calendar days from the date he is presented
with this Agreement to consider whether or not to sign it; that he is knowingly
and voluntarily waiving and releasing his rights under the ADEA and ADA only in
exchange for consideration (something of value) in addition to anything of value
to which he is otherwise entitled, and that if he signs this Agreement, he will
have the right to revoke the waiver and release of claims under the ADEA and the
ADA within seven (7) calendar days of signing this Agreement and that the ADEA
and ADA release shall not become effective or enforceable until after this
revocation period has expired. Cossano may revoke this Agreement by delivering a
written notice to the address listed below which is received by FiNet within
eight (8) days of his signing this Agreement: XxXxx.xxx, Inc., Attn. Xxxxx
Xxxxxxx, 0000 Xxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, XX 00000. The ADEA and ADA
releases and waivers described in this paragraph are of the essence to this
Agreement and revocation of the ADEA or ADA waivers and releases shall
constitute revocation of this entire Agreement and, in such event, FiNet will
have no obligation hereunder, including, but not limited to, no obligation to
pay any sums.
7. Cossano represents and warrants to each of the Releasees that
Cossano is the owner of the Claims being released hereby, and that he has not
previously assigned, transferred, hypothecated, or purported to assign, transfer
or hypothecate any claim or portion thereof which is not released hereby to any
other person or entity. Cossano hereby agrees to defend, indemnify and hold
harmless the Releasees from any of the Claims released hereby.
D. THE ABSENCE OF ANY LIEN HOLDER OR SUBROGATION RIGHTS.
Cossano and Finet, and each of them, represent, warrant and covenant
to each other that no lien holder exists and no persons or entities have any
subrogation rights, including but not limited to insurers, governmental agencies
or governmental programs, with regard to either the monetary consideration being
paid by FiNet under this Agreement or any of the claims
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released by the Releasees, and each of them, pursuant to this Agreement.
Xxxxxxx, and each of them, agrees to indemnify, hold harmless and defend the
Releasees, and each of them, should any person or entity assert a lien or
subrogation right with respect to any claim released under this Agreement. With
regard to the monetary consideration paid by FiNet pursuant to this Agreement,
FiNet agrees to indemnify, hold harmless and defend Xxxxxxx should any person or
entity assert a lien or subrogation right with respect to the monetary
consideration.
E. RECITALS.
The recitals contained in this Agreement are hereby made a part of the
terms and provisions of this Agreement, and shall be binding on the Parties as
if fully set forth herein.
F. CONFIDENTIALITY AND NON-DISPARAGEMENT.
1. Cossano has not and will not communicate the terms or conditions
of this Agreement to any other person or entity or local, state or federal
agency, including but not limited to, members of the media, unless ordered to do
so by a Court of competent jurisdiction in which case such disclosure will be
made under Court ordered seal, to the extent possible, and the absolute minimum
necessary disclosure will be made. Notwithstanding the foregoing, Cossano may
disclose such terms in confidence to his or her attorneys, accountants, tax
advisors, and spouse, provided that such persons also agree to this pledge of
confidentiality, and may make the minimum disclosure necessary to file tax
returns or to the extent necessary to enforce this Agreement.
2. FiNet agrees that it will only disclose the terms or conditions
of this Agreement to individuals or entities with a legitimate need-to-know and
may disclose this Agreement to the extent necessary to comply with all federal
or state law, including, but not limited to, securities and tax law.
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3. Cossano shall not make any voluntary statement of any kind which
is disparaging to Finet, or its subsidiaries or to their respective past or
present directors, officers or management employees, and shall not make any
voluntary statement of any kind which is calculated to, or which foreseeably
will, damage the business or reputation of Finet, or its subsidiaries or their
respective past or present directors, officers or management employees.
4. Finet, through its directors and officers, will not make any
voluntary statement of any kind which is disparaging to Cossano or which is
calculated to, or which foreseeably will, damage Cossano's reputation. FiNet
will inform its directors and officers of this provision and will direct them
not to make any such statements.
G. EMPLOYMENT RESIGNATION
1. The Parties agree that Cossano voluntarily resigned from his
employment with Finet.
2. Cossano agrees and reaffirms that Sections 4, 7, 10, 11, 12, 13,
14, 15 and 16 of the FiNet Employment Agreement survived its termination due to
Cossano's resignation; and agrees, covenants and warrants that Cossano has and
will continue to comply with Sections 4, 7, 10, 11, 12, 13, 14, 15 and 16 of the
FiNet Employment Agreement.
3. In the event an inquiry is made about Cossano, the head of human
resources at FiNet would respond to the inquiry and advise that Cossano
voluntarily resigned from his position as Finet's President and Chief Executive
Officer, provide the dates of employment, and not provide any other information.
H. NO OTHER COMPLAINTS.
1. Cossano represents, warrants and covenants that he has not filed
or reported and will not file or report any administrative, civil or criminal
complaints or lawsuits against the Releasees concerning the matters which took
place during or prior to Cossano's tenure at FiNet or Monument or anything else,
including, but not limited to, civil or administrative complaints with any
local, state or federal agency or court.
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2. Cossano represents, warrants and covenants that, if any agency or
court assumes jurisdiction of any complaint or lawsuit against Releasees on
behalf of Cossano, he will request that such agency or court withdraw from the
matter and will not accept, either directly or indirectly, any remedy obtained
through the efforts of such agency or court.
3. Cossano warrants and covenants not to assist voluntarily, or
otherwise encourage or cooperate with, anyone in the filing of any civil or
governmental or administrative complaint or lawsuit (or participate in any class
action) against the Releasees. Nothing contained in this Agreement, however,
shall be construed to interfere in any way with Cossano's legal obligations
pursuant to a subpoena or other government compelled process.
I. DEFENSE TO SUBSEQUENT ACTIONS.
This Agreement may be pled as a full and complete defense to, as well
as used as the basis for, an injunction against any action, claim, suit,
arbitration or other proceeding which may be instituted, prosecuted or
maintained in breach of this Agreement.
J. ENTIRE AGREEMENT AND DISPUTES UNDER THE AGREEMENT.
1. This Agreement constitutes the entire agreement between the
Parties with reference to the subject matter contained herein, and all prior
negotiations and understandings between the Parties are merged into and
superceded by this Agreement.
2. Any dispute or claims arising out of or related to this Agreement
will first be mediated through and at the offices of Judicial Arbitration and
Mediation Services' ("JAMS") San Francisco's office. If the dispute or claim is
not resolved through mediation, the dispute or claim will be arbitrated at JAMS'
San Francisco Office before a retired Judge (who did not participate in the
mediation), after the Parties have had the opportunity to undertake written and
oral discovery, including depositions. The prevailing Party will be entitled to
recover their costs, including reasonable attorneys' fees.
K. MODIFICATIONS OR AMENDMENTS.
This Agreement may not be altered, modified, amended or changed in any
respect or particular whatsoever, except by a writing duly executed by all of
the Parties.
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L. OPPORTUNITY TO CONSULT WITH ATTORNEY.
Cossano hereby agrees, represents and warrants (a) that he has had the
opportunity to consult an attorney concerning the content and legal effect of
this Agreement; (b) that he has read this Agreement or has had the same read to
her by his counsel; and (c) that he is fully aware of its contents and legal
effect.
M. INTERPRETATION OF THE AGREEMENT.
1. The validity, interpretation and performance of this Agreement
shall be controlled by, and construed under the laws of the State of California.
2. The paragraph headings hereof are for the convenience of the
Parties only and shall be given no substantive or interpretive effect
whatsoever.
3. Cossano acknowledges that the Agreement has been jointly drafted
by the Parties and that they have reviewed and revised the Agreement, or have
had the opportunity to revise the Agreement; accordingly, any ambiguity
contained herein shall not be construed for or against any Party.
N. SEVERABILITY.
If any provision or part of this Agreement is held to be invalid,
illegal, void or unenforceable for any reason whatsoever, the remaining
provisions or parts hereof shall nevertheless continue in full force and effect
without being impaired or invalidated in any way, except where otherwise so
provided in this Agreement.
O. NO WAIVER.
The waiver by any Party of the performance of any covenant, condition,
promise or representation contained herein shall not invalidate this Agreement,
nor shall it be considered a waiver of any other covenant, condition, promise or
representation, nor shall it be considered an agreement to waive the same
covenant, condition or promise in the future.
P. IF THE AGREEMENT DOES NOT BECOME EFFECTIVE.
The Parties agree that if this Agreement does not become effective for
any reason, this Agreement shall be deemed negotiations for settlement purposes
only and will not be
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admissible in evidence for any purposes whatsoever, and will not be admissible
at any arbitration, trial or appeal, except that this Agreement may be
introduced in a proceeding to enforce the Parties' settlement.
Q. ATTORNEYS' FEES.
Each Party shall pay their own, respective attorneys' fees and costs
with regard to the Claims resolved hereby and in the preparation of this
Agreement.
R. SUCCESSORS AND HEIRS.
Cossano expressly covenant and agree that this Agreement shall inure
to the benefit of, and be binding upon, their respective heirs, administrators,
executors, representatives, family members, wives, children, firms, successors,
trustees, insurers, beneficiaries, and assigns.
S. BINDING AGREEMENT.
This document may be signed in counterparts, and as executed, shall
constitute one binding agreement, notwithstanding that all the Parties are not
signatories to the original or same counterparts.
T. DATE OF EXECUTION.
The date set forth in the first paragraph of this Agreement shall be
known as the "Date of Execution" of this Agreement.
IN WITNESS WHEREOF, Cossano and Finet, and each of them, have executed
this Agreement, effective as of the date first above written.
/s/ Xxxx Xxxxxxx XXXXX.XXX, INC.
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XXXX XXXXXXX
By: /s/ L. Xxxxxx Xxxxxxx
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Its: Interim Chief Executive Officer
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