EXHIBIT 10.11
RELEASE AND SEPARATION AGREEMENT
This is an Agreement between Xxxx X. Xxxxxxxx ("Employee") of 000 Xxxxxx, Xxx
Xxxxxxx, Xxxxxxxxxx 00000, and Xxxxxx Guaranty Corporation, an Illinois stock
insurance company, including its officers, directors, employees, attorneys,
benefit plans and plan administrators, affiliates, agents, successors and/or
assigns (collectively, "Employer").
I. VALUABLE CONSIDERATION In exchange for his entering into this
Agreement, Employer will provide Employee with the following
consideration:
1. Continuation of Employee's medical insurance premiums under the
Employer's medical plans for a period of twelve months from April 30,
1998. Premiums will be paid by Employer, but Employee must elect
this benefit.
2. Acceleration of vesting of options to purchase 12, 874 shares of
the Common Stock of Xxxxxx Corporation at an exercise price per share
of $5.26, which options were originally scheduled to vest in two
equal installments of 6,437 on each of January 1, 1999, and 2000.
Pursuant to this Agreement, such 12,874 options shall vest as of May
1, 1998, and must be exercised not later than July 31, 1998. In
return for the acceleration of vesting of these options to purchase
12,874 shares, Employee agrees that he shall not be entitled to
exercise the options to purchase 5,600 shares that would other wise
become exercisable as of April 21, 1998.
3. In response to any written request for information from any
prospective employer, Employer will provide only Employee's position
and dates of employment as of the date of termination.
Employee acknowledges the above consideration is over and above anything
owed to Employee by law, contract or under the policies of Employer, and
that it is provided to him expressly in exchange for entering into this
Agreement.
II. TERMINATION OF EMPLOYMENT Employee's employment with Employer in the
capacity of Senior Vice President, Marketing, shall be terminated pursuant
to resignation of Employee as of April 30, 1998. Employee acknowledges
his continuing obligations with respect to non-competition, all as set
forth in Equity Award Agreements previously entered into between Employee
and Xxxxxx Corporation.
III. RELEASE AND WAIVER By signing this Agreement, Employee releases and
waives all legal claims of any nature whatsoever which Employee has or may
have against Employer as of the date of this Agreement is signed by him.
This release and waiver includes but is not limited to:
1. any claims for wrongful termination, defamation or any other
common law claims;
2. any claims for breach of any written or oral contract, including
but not limited to any contract of employment;
3. any claims of discrimination, harassment or retaliation based on
such things as age, national origin, race, religion, sex, sexual
orientation, or physical or mental disability or medical condition;
and
4. except for the severance amounts and benefits referenced in
Paragraph I above, the payment of any accrued unused vacation to
which Employee may be entitled by law, any claims for any
compensation of any sort, including but not limited to salary,
severance pay, benefits, commissions and bonuses.
This release and waiver includes all claims that may arise by contract,
under the common law and under all federal, state and local statutes,
ordinances, rules, regulations and orders, including but not limited to
any claim or cause of action based on the Fair Labor Standards Act, Title
VII of the Civil Rights Act of 1964, the Age Discrimination in Employment
Act, the Americans with Disabilities Act, the Civil Rights Acts of 1866,
1871 and 1991, the Rehabilitation Act of 1973, the Employee Retirement
Income Security Act of 1974, the Vietnam era Veterans' Readjustment
Assistance Act of 1974, Executive Order 11246, the Illinois Wage Payment
and Collection Act, the Illinois Human Rights Act, the Xxxx County Human
Rights Ordinance and the Chicago Human Rights Ordinance, as each of them
has been or may be amended.
Employee warrants that he has not and will not institute any lawsuit,
claim, action, charge, complaint, petition, appeal, accusatory pleading or
proceeding of any kind against Employer, and Employee waives any right to
any form of recovery or compensation from any legal action brought by him
or on his behalf in connection with Employee's employment or the
termination of his employment with Employer. Employee warrants that, at
the time of execution of this Agreement, he has not instituted and has no
present plans to institute any lawsuit, claim, action, or charge against
Employer.
IV. CONFIDENTIALITY Employee acknowledges that by reason of his employment
by Employer he has had access to highly confidential business information
of Employer, the misappropriation of which could harm the business
interests of Employer, including but not limited to financial information,
financing plans and arrangements, personnel information and records,
customer records and information, business plans and marketing strategies.
Employee hereby agrees not to use or disclose such confidential
information at any time in the future. Employee hereby also acknowledges
his statutory and common law
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obligation to refrain from using, for himself or in the interests of
others, and from disclosing to others, all such confidential
information. Employee also agrees that he will keep the circumstances of
his resignation and the existence and terms of this Agreement strictly
confidential, and that he will not discuss them with or reveal them to
anyone other than his legal representative(s) or as may be required by
law.
V. NON-DISPARAGEMENT Employee agrees that he has not and will not make any
oral or written statements about Employer and/or its financial condition,
personnel, business methods or otherwise, which are intended or reasonably
likely to disparage Employer in the community or among its customers.
VI. REMEDIES Employee acknowledges that his breach of Paragraph IV or V of
this Agreement could result in irreparable harm to Employer, and that
money damages would be an insufficient remedy. Therefore, the parties
agree that Employer will be entitled to injunctive and other equitable
relief should Employee breach Paragraph IV or V, as well as actual
damages, costs and attorneys' fees. Employee also agrees that he will
repay the severance payment amounts provided pursuant to Paragraph I(1),
(2) and (3) of this Agreement should he breach this Agreement in any way.
VII. KNOWING AND VOLUNTARY RELEASE Employee agrees that his signing of this
Agreement has been knowing and voluntary and has not been coerced or
threatened. Employee also agrees that he has been given sufficient time
with an attorney before signing this Agreement.
VIII. ENTIRE AGREEMENT AND SEVERABILITY The parties agree that this
Agreement sets forth the entire agreement between them and supersedes any
other written or oral understanding they may have had. The parties also
agree and acknowledge that no other promises or agreements have been
offered for this Agreement (other than those described above) and that no
other promises or agreements between the parties will be binding unless
they have been reduced to writing and signed by the parties. Employee and
Employer further agree that, if any portion of this Agreement is held to
be invalid or legally unenforceable, the remain portions of this Agreement
will not be affected and will be given full force and effect.
IX. NON-ADMISSION The parties acknowledge that this Agreement does not
constitute any admission by Employee or Employer of any wrongdoing or
liability whatsoever, but results from the desire of the parties to
resolve all actual and potential disputes between them.
X. APPLICABLE LAW All provisions of this Agreement will be construed and
governed by Illinois law without regard to the laws of any other
jurisdiction. Any suit, claim or other
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legal proceeding arising out of or relating to Employee's employment,
his termination from employment or this Agreement shall be brought
exclusively in the federal or state courts located in Xxxx County,
Illinois, and Employee and Employer hereby submit to personal
jurisdiction in the State of Illinois and to venue in such courts.
XI. RESOLUTION OF ALL MATTERS This Agreement resolves all matters between
the parties relating to Employee's employment and his resignation and
termination of employment with Employer. This Agreement becomes effective
and binding when it is signed, witnessed and dated by Employee and
delivered to Employer.
XXXXXX GUARANTY CORPORATION (Employer)
By: /S/XXX X. XXXXXX Date: March 1, 1998
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Xxx X. Xxxxxx
President
XXXX X. XXXXXXXX (Employee)
/S/ XXXX X. XXXXXXXX Date: March 1, 1998
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