Exhibit 10.71
CONFIDENTIAL SEPARATION AGREEMENT,
GENERAL RELEASE AND CONSULTING AGREEMENT
The parties to this Confidential Separation Agreement, General
Release and Consulting Agreement (the "Agreement"), entered into on January 25,
2005, are Xxxxxxx Xxxxxxxxxxxx ("Xxxxxxxxxxxx") and CMC Heartland Partners (the
"Company"), sometimes referred to collectively as the "parties."
In consideration of the mutual covenants contained in this Agreement,
Brandstatter and Company agree as follows:
1. The parties agree that Brandstatter shall be deemed to have been
terminated from his position as President of Company on December 31, 2004 (the
"Effective Date"), resulting from Company's winding up of its operations.
2. For a twelve (12) month period following the Effective Date,
Company shall retain Brandstatter to provide, and Brandstatter agrees to provide
to Company, Brandstatter's services as an independent contractor providing
guidance, advice, consultation and assistance to Company during the winding up
of its operations. It is understood that in performing any consulting services
in this Agreement, Brandstatter is acting as an independent contractor and not
as an employee, agent or representative of Company. Consequently, Brandstatter
will be solely responsible for the means and methods used to achieve the project
objectives desired by Company. Additionally, Brandstatter will be responsible
for reporting and paying any federal, state and local taxes owing on the
consulting income received.
3. This Agreement is dependent upon the personal services provided by
Brandstatter, and therefore Brandstatter understands and acknowledges that he
may not assign, delegate or subcontract any obligations under this Agreement
without the Company's prior consent.
4. During the period of this Agreement, Brandstatter may provide
services to others as an employee or consultant, so long as the services
Brandstatter provides to others does not conflict with the services he is
providing to the Company.
5. In the performance of Brandstatter's responsibilities as a
consultant under this Agreement, Brandstatter acknowledges that he is expected
to exercise reasonable care, acting in good faith and in the best interests of
the Company. Brandstatter shall not act as the Company's agent or enter into any
agreements or incur any obligations on the Company's behalf, or commit the
Company in any other manner, without the Company's prior written consent. Note
that this limitation does not include Brandstatter's preparation and/or
execution of financial statements, tax returns, or other filings relating to his
capacity as President prior to the Effective Date, nor does it include
Brandstatter's preparation and/or execution of financial statements, tax
returns, or other filings relating to his capacity on the Board of Managers of
HTI Interests, LLC, prior to or after the Effective Date.
6. Subject to continuing satisfaction of the terms and conditions of
this Agreement by Brandstatter, Company shall pay to Brandstatter a monthly
amount of $8,333.34 (the "Consulting Fees"). Additionally, Brandstatter shall be
eligible for certain additional consulting payments (the "Additional Consulting
Payments"). First, Brandstatter will be entitled to an Additional Consulting
Payment of $15,000 for assisting with the transfer of the Company's business to
an outside trustee for liquidation or dissolution. Second, Brandstatter will be
entitled to an Additional Consulting Payment of $15,000 for assisting with the
preparation and filing of the Company's 2004 Form 10K and Annual Report. The
Additional Consulting Payments will be made within thirty (30) days after
Brandstatter has performed the required acts. In the event Brandstatter
completed such acts prior to the effective date of this Agreement, or during the
review period prior to signing this Agreement, payment will be made within
thirty (30) days after final execution of this Agreement.
7. The Consulting Fees and Additional Consulting Payments will be
forwarded by first class mail to Brandstatter at an address that he will provide
to the Company and update as necessary. As an independent contractor,
Brandstatter will be responsible for all federal, state and local taxes.
8. Brandstatter acknowledges that he has been notified of his right
to insurance continuation under applicable laws. Brandstatter further
acknowledges that the payments made to date and the payments to be made under
this Agreement are in full and complete satisfaction of all of the Company's
obligations for payments and benefits coverage to Brandstatter. Brandstatter
acknowledges that, other than those payments set forth in this Agreement,
Company shall make no further payments to Brandstatter or his family members or
make any payments or contributions on behalf of Brandstatter or his family
members for salary, insurance, pension, income replacement or any other
compensation or benefits.
9. Brandstatter hereby RELEASES, FOREVER DISCHARGES and COVENANTS NOT
TO XXX Company, and affiliates or related companies or entities, any and all of
its and their respective past or present officers, directors, partners, members,
insurers, agents, attorneys, employees, trustees, administrators and fiduciaries
(all collectively, the "Released Parties"), from any and all causes of action,
from the beginning of time up to the date of this Agreement. If Brandstatter
commences any claim in violation of this Agreement, the Released Party shall be
entitled to assert this Agreement as a bar and shall be entitled to recover its
attorneys' fees and costs of litigation from the party commencing or continuing
the claim. PROVIDED, HOWEVER, Brandstatter is not waiving, releasing or giving
up any rights Brandstatter may have for workers' compensation benefits, to
earned, banked or accrued but unused vacation pay, to vested benefits under any
pension or savings plan, to continued benefits in accordance with the
Consolidated Omnibus Budge Reconciliation Act of 1985 or to unemployment
insurance.
10. Without in any way limiting the generality of the foregoing, this
Agreement constitutes a general and full release and disclaimer of all claims
arising out of or relating in any way to Brandstatter's employment or
termination of employment with Company, whether arising under a statute
including but not limited to Title VII of the Civil Rights Act of 1964, the Age
Discrimination in Employment Act of 1967, 42 U.S.C. ss. 1981 ("Section 1981"),
the Americans With Disabilities Act ("ADA"), the Family and Medical Leave Act
("FMLA"), the Illinois Human Rights Act, all county, municipal, federal, state
or other statutes, ordinances or regulations, as may be amended from time to
time, or common law claims or causes of action relating to alleged
discrimination, breach of contract or public policy, wrongful or retaliatory
discharge, tortious action, inaction, retaliation, or interference of any sort,
defamation, libel, slander, personal or business injury, including attorneys'
fees and costs, all claims for salary, bonus, and reimbursement for expenses
occurring up to and including the date of execution of this Agreement.
11. The parties acknowledge that Brandstatter continues to be
indemnified as an officer and director of the Company for actions prior to
December 31, 2004, and that this Agreement is not intended to waive such rights.
12. Except as required by law or by a court of competent
jurisdiction, Brandstatter shall never disclose or discuss the existence, terms,
conditions, and amounts set forth in this Agreement or the discussions and
negotiations that preceded it, except to his immediate family, attorneys, or
accountants or tax advisers as necessary for them to assist him. Brandstatter
agrees that prior to any disclosure to any of these individuals, Brandstatter
shall inform them of the confidential nature of the Agreement and the
discussions and negotiations that preceded it. Brandstatter acknowledges that
this paragraph is material to this Agreement.
13. Brandstatter acknowledges that he has no employment or
contractual relationship with Company other than the contractual relationship
created by this Agreement.
14. This Agreement constitutes the entire agreement between the
parties with regard to all matters addressed in this Agreement and supersedes
all prior negotiations and agreements relating to those matters. This Agreement
is an integrated document and the consideration stated herein is the sole
consideration for this Agreement. The rights and obligations of the parties
shall be construed in accordance with the laws of the State of Illinois without
regard to any State's rules regarding conflicts of laws, and all disputes
arising under this Agreement shall be submitted to the courts in the State of
Illinois.
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Brandstatter warrants that he is entering into this Agreement freely
and voluntarily. Brandstatter acknowledges that he has twenty-one (21) days to
review this Agreement, and that he has been advised to consult with an attorney
before signing this Agreement. Brandstatter affirms that he has carefully read
and fully understands this Agreement, has had sufficient time to consider it,
has had an opportunity to ask questions and have it explained, and is entering
into this Agreement knowingly and voluntarily, with an understanding that the
general release will have the effect of waiving any action or recovery he might
pursue for any claims arising on or prior to the date of the execution of this
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on this
date or dates set forth below.
CMC HEARTLAND PARTNERS
By:/s/ Xxxxxxxx Xxxxxxx
Name: Xxxxxxxx Xxxxxxx
Title:Chief Executive Officer
By: /s/ Xxxxxxx Xxxxxxxxxxxx
Name: Xxxxxxx Xxxxxxxxxxxx
