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EXHIBIT 10 (hh)
RELEASE AND TERMINATION AGREEMENT
For value received, Source One Mortgage Services Corporation ("Source
One"), a Delaware corporation, and Xxxxx X. Xxxxxx ("Xxxxxx"), mutually agree as
follows:
1. Resignation and Termination. Xxxxxx hereby resigns from all positions
which he now holds with Source One and any subsidiary or other related or
affiliated corporation or other affiliated entity, including but not limited to
his positions as a director, officer, committee member, and employee of Source
One, effective as of the close of September 30, 1997 (the "Termination Date").
Moreover, all employment and other agreements, contracts, commitments and
understandings between Source One and Xxxxxx, whether written, oral or
otherwise, other than this Agreement, are hereby terminated, ended and void as
of the Termination Date.
2. Consideration. In consideration of the release, covenant not to xxx, and
other promises made by Xxxxxx in paragraphs 4, 5, 6, 7, 8, 9, 10 and 11 of this
Agreement, and in full accord, satisfaction and discharge of any and all
obligations, agreements, contracts, commitments, understandings, or otherwise,
Source One agrees:
(a) to make supplemental payments (subject to applicable taxes and
withholding) to Xxxxxx and his spouse, if she survives him, (in
addition to
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any amounts which Xxxxxx and his spouse are entitled to receive
under the Source One Mortgage Services Corporation Retirement Plan
(the "Retirement Plan") and the related Source One Mortgage Services
Corporation Supplemental Retirement Plan (the "SRP")) commencing
January 1, 1999 (the "Early Retirement Date") in the amount of
$3,342.16 per month to Xxxxxx for his lifetime and in the amount of
$1,671.08 per month to his spouse, if she survives him, for her
lifetime, provided, however, that Source One shall make such payments
only if Xxxxxx elects under Article IV, Section 2(a), of the
Retirement Plan to have his Early Retirement Benefit (as defined in
the Retirement Plan) commence on the Early Retirement Date.
Notwithstanding the foregoing, if instead of the automatic qualified
joint and survivor annuity under Article IV, Section 6(d), of the
Retirement Plan Xxxxxx should elect under Article IV, Section 6(b) of
such plan an optional form of benefit actuarially equivalent
to the lifetime annuity payable to him under such plan, the
supplemental payments to Xxxxxx and his spouse, if she survives him,
under this Agreement shall be paid in the same manner and form as
such optional
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form of benefit under the Retirement Plan, and the amounts of such
supplemental payments shall be adjusted so that they are
actuarially equivalent to the supplemental payments to Xxxxxx for his
lifetime (not including the supplemental payments to his spouse, if
she survives him) described in the first sentence of this paragraph
(a). Actuarial equivalence shall be determined in the same manner it
is determined under the Retirement Plan. If Xxxxxx should die before
the Early Retirement Date, Source One will make supplemental payments
to his spouse, if she survives him, and is living on the Early
Retirement Date, (in addition to any amounts which she is entitled to
receive under the Retirement Plan and SRP) commencing on the Early
Retirement Date in the amount of $1,671.08 per month for her
lifetime.
(b) To continue Xxxxxx'x regular salary through December 31, 1998.
(c) To continue to provide to Xxxxxx the same life insurance,
medical/hospital coverage and dental coverage that he would be
entitled to had he remained a full time employee of Source One through
December 31, 1998.
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(d) To continue Xxxxxx'x eligibility for a bonus under Source One's
Executive Incentive Compensation Plan for 1997 in accordance with the
performance objectives established by Source One's Board of Directors
on or about August 21, 1997.
(e) To pay Xxxxxx, if Source One makes a contribution to the ESOP portion
of the Source One Mortgage Services Corporation Employee Stock
Ownership and 401(k) Plan for 1997, the excess of (i) the amount which
would have been allocated to his account under the ESOP portion of
such plan had he continued in employment with Source One at the rate
of annual salary being paid to him on the Termination Date over (ii)
the actual amount allocated to his account under the ESOP portion of
such plan for 1997.
(f) To treat Xxxxxx as having attained the age of 60 years or more on
September 30, 1997 for purposes of the agreement dated July 1, 1992
between Xxxxxx and Source One relating to a membership in the Oakland
Hills Country Club with the result that (i) paragraph 8 of such
agreement shall apply, (ii) Source One will transfer all of its right,
title and interest in, to and with respect to the Oakland Hills
Country Club membership to Xxxxxx as of September 30, 1997, and (iii)
as of September 30, 1997 such membership shall be
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deemed to be the sole and exclusive property of Xxxxxx and the
agreement dated July 1, 1992 shall terminate and be of no further
force or effect. Xxxxxx will be responsible for all expenses incurred
by him in connection with such membership after September 30, 1997.
It is understood and agreed that the foregoing payments and benefits are
good and valuable consideration for this Release and Termination Agreement, are
in addition to all other compensation and benefits which have already been paid,
or are owed, to Xxxxxx, and do not constitute monies or benefits to which Xxxxxx
is otherwise entitled as part of his prior employment with Source One.
3. Other Benefits. In accordance with applicable documents and current
policies with respect to retirees, Source One will (i) pay Xxxxxx for his unused
vacation days determined as of the Termination Date, namely 11.5 days, (ii)
cause Xxxxxx'x account balances in the Source One Mortgage Services Corporation
Employee Stock Ownership and 401(k) Plan to be paid to Xxxxxx in accordance with
the terms of such plan, (iii) continue to provide to Xxxxxx from and after
January 1, 1999 Blue Cross and Blue Shield medical and hospital coverage and
life insurance coverage on the same basis such coverage is provided to other
retirees from Source One, and (iv) continue from and after January 1, 1999
dental coverage for Xxxxxx and his spouse for up to three years at
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his expense if elected by him. Medical and dental coverage will be subject
to the same terms and conditions, including cost adjustments and other
modifications, and possible termination, which apply to such coverage for other
retirees. At Xxxxxx'x direction the amounts he will be required to pay for
medical and dental coverage will be deducted from his monthly retirement
payments.
4. Release by Xxxxxx. In consideration of the payments and other items
specified in Paragraph 2, Xxxxxx, on behalf of himself and his heirs, legal
representatives and assigns, hereby fully releases and forever discharges Source
One, and its subsidiaries, parent and ultimate parent companies, other related
companies and affiliates, divisions, units, successors, affiliates,
shareholders, directors, officers, agents, and employees, (hereinafter "the
Released Parties") of and from all actions, causes of action, claims, demands,
compensatory, exemplary, statutory and punitive damages, costs, suits, debts,
fees, charges, complaints, contracts, controversies, agreements, expenses,
promises, judgments, damages and liability, and any and all consequential
damages whatsoever, in law or in equity, which against the Released Parties,
Xxxxxx, individually or in any representative capacity, had, now has or may or
shall have by reason of any matter, fact, representation, cause or thing of any
conceivable kind and character whatsoever, and which have occurred up to the
effective date of this Agreement, including
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specifically, but not by way of limitation, any and all claims of
discrimination, wrongful discharge, breach of contract, fraud, promissory
estoppel, misrepresentation, retaliation, all claims under or in connection with
the Age Discrimination in Employment Act (ADEA), the Older Workers Benefit
Protection Act, Title VII of the Civil Rights Act of 1964, the Civil Rights Act
of 1991, the Employee Retirement Income Security Act of 1974, the Equal Pay Act,
the Michigan Xxxxxxx-Xxxxxx Civil Rights Act, the Michigan Handicappers' Civil
Rights Act, the Michigan Workers Disability Compensation Act, The Americans with
Disabilities Act, any other Michigan and federal statutes and the common law of
the State of Michigan and the United States, actions based on tort, public
policy, defamation, or injuries incurred on the job or incurred as a result of
loss of employment, and any and all claims and demands of every conceivable kind
based upon or in connection with or involving Xxxxxx'x employment and the
termination of such employment. Notwithstanding the foregoing, nothing in this
Waiver and General Release shall constitute a waiver of any claim or right of
Xxxxxx that may arise from events occurring after the date the Waiver and
General Release is executed by Xxxxxx, nor of the right to file a charge with or
participate in an investigation conducted by the Equal Employment Opportunity
Commission. You are, however, waiving your right to any monetary recovery in
connection with such a charge.
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5. Complete Defense. In further consideration, Source One and Xxxxxx do
hereby covenant and agree that this Release and Termination Agreement shall be a
full and complete defense to, and be used as a basis for an injunction against
any action, suit, or any other proceeding which may be instituted, prosecuted or
attempted by Xxxxxx, his heirs, legal representatives, or assigns in breach
hereof.
6. Waiver of Rights To Xxx or Proceed. In further consideration thereof,
Xxxxxx, on behalf of himself, his heirs, legal representatives and assigns,
hereby covenants with the Released Parties that he will not xxx or proceed in
any manner, whether at law or in equity, against any or all of them, for or on
account of any claim of any nature whatsoever, including but not limited to any
claim for injuries or compensatory, exemplary, statutory or punitive damages as
a result of the events arising out of or relating in any way to Xxxxxx'x
employment or the termination of Xxxxxx'x employment with Source One. If you
violate this Release and Termination Agreement by suing Source One, then you may
at Source One's option, be required to return all monies paid to you pursuant to
Paragraph 2 plus the monetary equivalent of benefits you received pursuant to
that paragraph, in which case Source One shall be released from its obligations
to make further payments and to continue providing benefits pursuant to
Paragraph 2.
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7. Waiver of Reinstatement and Reemployment. Xxxxxx agrees and recognizes
that his relationship with Source One and its affiliates and successors has been
permanently and irrevocably severed and that neither Source One nor its
successors have any obligation, contractual or otherwise, to rehire, reemploy,
recall or hire him in the future.
8. Confidentiality of this Agreement. Xxxxxx hereby agrees not to disclose
either the fact that he has entered into a release and termination agreement
with Source One or the terms of this Release and Termination Agreement,
including, but not limited to, the amounts paid, to any person or entity, except
his counsel or tax professional or accountant in the course of seeking tax or
financial or legal advice. Any such counsel or tax advisor must be advised of
this confidentiality provision, and agree to abide by it, prior to any
disclosure. In addition, Xxxxxx agrees that such nondisclosure is a material
consideration for the Released Parties having entered into this Release and
Termination Agreement, and that any such disclosure shall be a material and
actionable breach of this Release and Termination Agreement.
The parties further agree that they will not allow anyone to have
access to or to view this Release and Termination Agreement, except as
authorized above.
9. Confidential Information. Xxxxxx agrees that he will hold in a fiduciary
capacity for the benefit of the Fund American Group all Confidential Information
and shall not communicate or
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divulge any Confidential Information to, or use any Confidential
Information for the benefit of, any person (including himself) or entity other
than an entity in the Fund American Group. For purposes of this Agreement "Fund
American Group" means Fund American Enterprises Holdings, Inc. and any related
company, including Source One, and their respective agents, employees, directors
and officers. Also for purposes of this Agreement "Confidential Information"
shall mean (i) information, not generally known, about the Fund American Group's
clients, processes, services and products, whether written or not, including
information relating to research, accounting, marketing, merchandising, selling
and the identity of current and prospective customers and other client
information and (ii) any confidential information entrusted to the Fund American
Group by a client or customer thereof which the Fund American Group is obligated
to keep confidential. Xxxxxx agrees that he will return to Source One as soon as
practicable after the Termination Date any documents or other written, recorded
or graphic matter containing, relating or referring to any Confidential
Information (and all copies thereof) in Xxxxxx'x possession or control.
10. No Disparaging Statements. Xxxxxx agrees that he will not make any
statement to any third party disparaging or criticizing, or otherwise take
action to cast aspersions on, the management, business, affairs or property of
any of the Fund American Group.
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11. No Soliciting of Employees. Xxxxxx agrees that he will not solicit or
cause to be solicited for employment on behalf of himself or on behalf of any
person or entity (other than Source One or another member of the Fund American
Group) any person who is employed by Source One or any other member of the Fund
American Group at the time Xxxxxx engages in the solicitation.
12. Purpose and Intent. Xxxxxx understands and agrees that this Release and
Termination Agreement is entered into for the purpose of avoiding further
controversy with respect to any and all past, present, or future claims,
demands, actions, obligations, damages, fees, interests, losses and expenses of
any nature whatsoever arising from or by reason of any matter, act, omission or
thing of any kind, whether known or unknown, foreseen or unforeseen, having
occurred up to the effective date of this Agreement. The parties intend that
this Agreement will irrevocably bar any action or claim whatsoever by Xxxxxx
against the Released Parties for any injuries or damages, whether known or
unknown, sustained or to be sustained, as a result of the Released Parties'
acts, omissions and conduct having occurred up to the effective date of this
Agreement, including, but not limited to, the termination of Xxxxxx'x
employment.
13. Waiting and Revocation Periods. Xxxxxx expressly acknowledges that he
has been advised and instructed that he has the right to consult an attorney
and that he should review the terms of this Agreement with counsel of his own
selection. Xxxxxx
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further confirms that he has had more than twenty-one (21) days within
which to consider the terms of this Agreement, that he has had the opportunity
to review this Agreement with counsel of his own choice, that he has had ample
time to study this Agreement, that he has carefully read the terms of this
Agreement and is fully aware of the Agreement's contents and legal effects, and
that he executes this Agreement voluntarily and of his own free will. Xxxxxx
expressly acknowledges that this Agreement constitutes a knowing and voluntary
waiver under the Older Workers Benefit Protection Act and that this Waiver and
General Release complies with the provisions of the Older Workers Benefit
Protection Act. Xxxxxx understands and agrees that this Agreement is revocable
by any party for seven (7) days following the signing of this Agreement by both
parties, and that this Agreement shall not become effective or enforceable until
that revocation period has expired. This Agreement automatically becomes
enforceable and effective on the eighth (8th) day after the date this Agreement
is signed by all of the parties. This Agreement may be revoked by a writing sent
certified mail by either party post-marked no later than the seventh (7th) day
after the Agreement is signed by the last party (unless that day is a Sunday or
a holiday, in which event the period is extended to the next day there is mail
service).
14. Entire Agreement. This Release and Termination Agreement contains the
entire agreement of the parties and
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supersedes all other agreements, written or otherwise. This Release and
Termination Agreement cannot be altered or amended except in writing, which
writing must be signed by Xxxxxx and by the Chairman of Source One. In no event
shall this Release and Termination Agreement be modified by any oral statements,
agreements, commitments or understandings.
15. Free Act and Deed. Source One and Xxxxxx acknowledge that they have
reviewed this Release and Termination Agreement, understand its terms, and
execute this Agreement as their free act and deed. Xxxxxx further acknowledges
that he has been afforded the opportunity to review this Release and Termination
Agreement with counsel of his own choice and that he knowingly and voluntarily
approves this Release and Termination Agreement.
16. Choice of Law and Severability. This Release and Termination
Agreement shall be construed in accordance with the law of Michigan. If any
provision of this Agreement shall for any reason be held invalid or
unenforceable, such invalidity or unenforceability shall not affect any other
provision hereof, but this Agreement shall, in such event, be construed as if
such invalid and/or unenforceable provision had ever been contained herein.
17. Effective Date. The effective date of this Agreement is the eighth
(8th) day after the date this Agreement is signed by all of the parties.
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Xxxxxx has executed this Release and Termination Agreement this _____ day of
___________, 1997.
THIS IS A RELEASE READ BEFORE SIGNING:
WITNESSED:
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Xxxxx X. Xxxxxx
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SOURCE ONE MORTGAGE SERVICES
CORPORATION
WITNESSED:
By
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----------------------------- Its Chairman
Dated:
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