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Exhibit 10.6
SEVERANCE AGREEMENT AND RELEASE
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THIS SEVERANCE AGREEMENT AND RELEASE ("Agreement") is made as of
November 20, 1998 between Rock Financial Corporation, a Michigan corporation
(the "Company"), and Xxxxxx Xxxxx ("Xx. Xxxxx"). The Company and Xx. Xxxxx are
sometimes referred to together as the "Parties" and individually as a "Party".
R E C I T A L S
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A. Xx. Xxxxx is the President and a director of the Company.
B. Xx. Xxxxx wishes to resign from all of his positions with the
Company and to settle and resolve all actual and potential claims against the
Company and its affiliates in accordance with this Agreement.
C. The Company wishes to accept Xx. Xxxxx'x resignation and to
settle and resolve all actual and potential claims against Xx. Xxxxx in
accordance with this Agreement.
THEREFORE, the Parties agree as follows:
1. Termination of Xx. Xxxxx'x Employment. Effective as of the
date of this Agreement (the "Effective Date"), Xx. Xxxxx resigns from all of his
positions with the Company, the Rock Financial Corporation 401(k) Savings Plan
(the "401(k) Plan"), subject to Section 5(b), and all of its other employee
benefit plans, including the following: President and a director of the Company.
From the Effective Date through six months after the Effective Date, Xx. Xxxxx
will answer reasonable inquiries from the Company during business hours
regarding aspects of the Company's business affairs of which he has knowledge
and which occurred during his employment.
2. Additional Compensation.
(a) Cash Payments. On the Company's next regular payroll
date following the Effective Date, but in any event within five business days
after the Effective Date, the Company will pay Xx. Xxxxx by check, $112,500,
less normal withholding for federal, state, city and other taxes to the extent
such taxes are required to be withheld under applicable law.
(b) Stock Compensation Matters. As of the Effective Date
and solely for purposes of the Stock Option Agreement, granted December 28,
1996, between the Company and Xx. Xxxxx (the "1996 Option"), and the Stock
Option Agreement, granted May 6, 1998, between the Company and Xx. Xxxxx (the
"1998 Option"), Xx. Xxxxx shall be deemed to cease to be an employee of the
Company because of termination by the Company without "cause" (as defined in the
1996 Option and the 1998 Option), and, therefore, subject to Section 2(d) of the
1996 Option and the 1998 Option, the Option (as defined in the 1996 Option and
the 1998 Option) shall expire three years after the Effective Date.
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(c) Medical and Dental Benefits. The Company will provide Xx.
Xxxxx with his current Company health insurance coverage (including medical and
dental coverage) for one year after the Effective Date, and the Company shall
bear the costs of such coverage, which shall be paid directly to the carrier or
provider. Thereafter, the Company will provide Xx. Xxxxx with the opportunity to
continue his current Company health insurance coverage (including medical and
dental coverage) pursuant to the Consolidated Omnibus Budget Reconciliation Act
("COBRA") for an additional 18 months. If he elects to continue such insurance,
he will pay the cost of any such insurance, including any premiums relating to
such insurance.
(d) Termination of Employment Agreement. As of the Effective Date,
the Employment Agreement, between Xx. Xxxxx and the Company, dated as of
June 27, 1994, as amended, including by the Amendment to Employment Agreement,
dated as of December 28, 1996, and the Second Amendment to Employment Agreement,
dated as of February 18, 1998 (the ""Employment Agreement"), is terminated and
cancelled and shall be of no further force or effect, except for Sections 4A,
4B, 4C and 4D of the Employment Agreement, as amended, which shall continue in
full force and effect for three years after the Effective Date. The definition
of "Covenant Period" in Section 4B of the Employment Agreement shall be amended
to mean "during the Term and continuing for a period of three years thereafter."
Notwithstanding the foregoing, beginning one year after the Effective Date, Xx.
Xxxxx shall be permitted to operate a mortgage company (the "Entity") subject to
the following restrictions:
(i) He must own at least 25% of the equity interests in the
Entity.
(ii) None of the other investors in the Entity shall have any
connection with any other company engaged in the business of originating,
buying or selling mortgage loans, including as owners, operators, employees
or lenders, except that an investor in the Entity may own, for investment
purposes only, less than 5% of the stock of any publicly-traded entity whose
stock is either listed on a national stock exchange or is quoted on The
Nasdaq National Market if such investor is not otherwise affiliated with
such entity.
(iii) The Entity shall employ no persons (in any capacity, including
as consultants) who were employed by the Company within one year prior to
the date of their employment by the Entity, except as otherwise agreed in
advance, in writing by the Company's Chief Executive Officer. If Xx. Xxxxx
makes a written request for such an exception, the Company shall respond
within seven business days after it receives the request.
(e) No Other Payments or Benefits. Except as to Xx. Xxxxx'x salary
through the Effective Date and reimbursements for any expenses of Xx. Xxxxx
incurred through the Effective Date based upon the Company's standard expense
reimbursement program, both of which (to the extent the reimbursement requests
have been submitted by the Effective Date) shall be paid by Company to Xx. Xxxxx
on the Company's next applicable payroll date after the Effective Date, Xx.
Xxxxx will not be entitled to any other payments or benefits whatsoever,
including participation after the Effective Date in the 401(k) Plan, subject to
Section 5(b). For no purpose (including 401(k) Plan contributions, vacation
benefits, or other benefits) shall the
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payments and benefits described in this Section 2 be considered salary to Xx.
Xxxxx or be deemed to continue his employment beyond the Effective Date.
(f) Taxes. The Company will withhold from the cash payments
described in Section 2(a) normal withholding for federal, state, city and other
taxes to the extent such taxes are required to be withheld under applicable law.
3. Confidentiality.
(a) Return of Materials. Xx. Xxxxx represents and warrants that to
the best of his knowledge he has returned to the Company all confidential
materials of the Company and files of the Company over which he exercises any
control.
(b) Enforceability. Sections 2(d) and 3(a) are intended, among
other things, to protect the confidential information of the Company and its
employees. If for any reason a court determines that any part of Section 2(d) or
this Section 3 is unreasonable in scope or otherwise unenforceable, such
provisions will be modified and fully enforceable, as so modified, to the
maximum extent the court determines lawful and enforceable under the
circumstances.
4. Termination of Prior Agreements; Unemployment Compensation. Except as
set forth in Section 2(d), this Agreement supersedes all prior understandings
and agreements between the Parties (written or otherwise). Xx. Xxxxx
acknowledges that he is not entitled to any severance or termination payments
whatsoever in connection with the termination of his employment with the
Company, except as otherwise provided in Section 2. Xx. Xxxxx agrees that his
resignation is voluntary, that he is not entitled to unemployment compensation
and that he will not seek or obtain unemployment compensation based upon his
termination of employment with the Company.
5. Release.
(a) Release. In consideration of, and in reliance on, the Company
entering into this Agreement and agreeing to the terms and conditions of this
Agreement, including the additional compensation provided in Section 2, which
Xx. Xxxxx acknowledges as being adequate, Xx. Xxxxx hereby unconditionally
releases and forever discharges the Company and its divisions, components,
employees, officers, directors, shareholders, affiliates, agents, trusts,
partnerships, attorneys and successors and assigns from, and hereby waives, any
and all causes of action, suits, damages, claims, demands and liability
whatsoever which Xx. Xxxxx ever had or now has against the Company, directly or
indirectly, which is now existing or which may hereafter arise between them,
directly or indirectly, by reason of any facts existing on or prior to the
Effective Date, whether known or unknown, except for the Company's violation of
this Agreement or as to any claims arising from Section 10, and specifically
including, but not limited to, any and all claims relating to Xx. Xxxxx'x
employment with the Company or any of its affiliates and the termination of such
employment (including severance pay, vacation pay, and all other forms of pay
and benefits), and specifically including any and all claims for defamation,
wrongful discharge, breach of contract, negligence and other tort actions,
and/or discrimination,
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harassment and/or retaliation on account of sex, sexual orientation, race,
color, religion, marital status, handicap, height, weight, national origin, or
any other classification recognized under the common law of the State of
Michigan, local law and/or ordinances, and the civil rights statutes, and
specifically including any and all claims arising under or in connection with
Title VII of the Civil Rights Act of l964; the Rehabilitation Act of 1973; the
Older Workers Benefit Protection Act; the Americans With Disabilities Act; the
Family and Medical Leave Act of 1993; the Xxxxxxx-Xxxxxx Civil Rights Act; the
Michigan Handicappers' Civil Rights Act; the Michigan Whistleblower's Protection
Act; the Fair Labor Standards Act; 42 USC 1981, l985, l986, l988; 29 USC 62l;
any amendments to such statutes, all other federal, state or local laws, the
common law of the State of Michigan, and any actions based upon injuries on the
job. Xx. Xxxxx understands and agrees that this is a total and complete release
and waiver by Xx. Xxxxx of all claims which Xx. Xxxxx has or may have against
the Company or any of its affiliates by reason of any facts existing on or prior
to the Effective Date, both known and unknown, even though there may be facts
and consequences of facts which are unknown to Xx. Xxxxx and/or the Company. Xx.
Xxxxx further agrees that he has suffered no work related injury or illness, and
that he has been properly paid all his past wages and benefits, including
overtime earnings and vacation pay as of this date. Xx. Xxxxx shall not bring
suit or make a claim or charge in any manner with respect to any claim released
under this Agreement.
(b) Benefit Plans. Xx. Xxxxx is not releasing any rights he may
have to benefits arising under the 401(k) Plan; provided, that Xx. Xxxxx
acknowledges that he will no longer be an employee of the Company as of the
Effective Date and, therefore, is not entitled to future contributions to the
401(k) Plan on his behalf on or after the Effective Date, except to the extent
the 401(k) Plan provides for employer contributions to the 401(k) Plan allocable
to Xx. Xxxxx and related to his employment with the Company before the Effective
Date.
6. Remedies. Xx. Xxxxx'x undertakings and provisions under this Agreement
are related to matters which are of a special and unique character, and a
violation of any of the terms of this Agreement will cause irreparable injury,
the amount of which will be difficult, if not impossible, to determine and
cannot be adequately compensated by monetary damages alone. Therefore, if Xx.
Xxxxx breaches or threatens to breach any of the terms of this Agreement, in
addition to any other remedies that may be available under this Agreement,
applicable law or equity, the Company will be entitled, as a matter of course,
to specific performance, an injunction, a restraining order, or any other
equitable relief from any court of competent jurisdiction, requiring compliance
with this Agreement or restraining any violation or threatened violation of any
such terms by Xx. Xxxxx or by such other persons as the court may order;
provided Xx. Xxxxx has at least seven days prior notice from Company in writing
of such alleged violation and the Company posts a bond in the amount determined
by the applicable court with respect to any injunctions or restraining orders.
7. Miscellaneous.
(a) Successors. This Agreement will be binding upon the Parties
and their respective successors, assigns, heirs, executors and administrators.
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(b) Governing Law and Forum. The laws of the State of Michigan
shall govern this Agreement, its construction, and the determination of any
rights, duties or remedies of the Parties arising out of, or relating to, this
Agreement (regardless of the laws that might otherwise govern under applicable
Michigan principles of conflicts of law). The parties acknowledge that the
United States District Court for the Eastern District of Michigan or the
Michigan Circuit Court for the County of Oakland shall have exclusive
jurisdiction over any case or controversy arising out of, or relating to, this
Agreement and that all litigation arising out of, or relating to, this Agreement
shall be commenced in the United States District Court for the Eastern District
of Michigan or in the Oakland County (Michigan) Circuit Court. Each of the
Parties consents to be subject to personal jurisdiction of the courts of
Michigan, including the federal courts in Michigan.
(c) Counterparts. This Agreement may be signed in counterparts,
both of which together will be deemed an original of this Agreement.
(d) Entire Agreement; Amendment. This Agreement constitutes the
entire agreement of the Parties with respect to the subject matter of this
Agreement; this Agreement may be amended only by a written instrument executed
by both Parties.
(e) Legal Fees; Damages for Breach. The prevailing Party in any
action under this Agreement will be entitled to recover from the other Party, in
addition to any other relief provided by law, such costs and expenses as may be
incurred by the prevailing Party (including court costs and reasonable
attorneys' fees) in connection with enforcing, defending or establishing the
applicability or validity of this Agreement (including investigating and
responding to any demand or claim) and in prosecuting any counterclaim or
cross-claim based thereon. Each Party shall be liable to the other Party for any
damages (including costs and reasonable attorneys' fees) resulting from any
breach of this Agreement by such Party. The rights and remedies set forth in
this Section 7(e) are in addition to rights and remedies otherwise available to
the Parties under any applicable agreement between the Parties or applicable law
(including injunctive or other equitable relief).
(f) Severability. The provisions of this Agreement will be deemed
severable, and if any part of any provision is held illegal, void or
unenforceable under applicable law, such provision may be changed to the extent
necessary to make the provision, as so changed, legal, valid, binding and
enforceable. If any provision of this Agreement is held illegal, void, invalid
or unenforceable in its entirety, the remaining provisions of this Agreement
will not in any way be affected or impaired but will remain valid, binding and
enforceable in accordance with their terms.
(g) No Duress or Coercion. This Agreement (including the release
contained in Section 5) is freely and voluntarily entered into by each Party
without duress or coercion and after consultation with, or an opportunity to
consult with, counsel; and each Party has carefully and completely read all of
the terms and provisions of this Agreement.
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8. Personal Property. Xx. Xxxxx shall have the right to remove all
personal property of Xx. Xxxxx'x from his offices at the Company at any time
after the Effective Date.
9. Release by Company. In consideration of, and in reliance on, Xx. Xxxxx
entering into this Agreement and agreeing to the terms and conditions of this
Agreement, Company unconditionally releases and forever discharges Xx. Xxxxx
from any and all causes of action, suits, damages, claims, demands and liability
related to Xx. Xxxxx'x employment and/or service as an officer, director,
employee or agent of Company occurring prior to and up to the Effective Date,
including, without limitation, any and all causes of action, suits, damages,
claims and demands whatsoever which Company ever had or now has against Xx.
Xxxxx, directly or indirectly, which is now existing or which may hereafter
arise between them, directly or indirectly, by reason or any facts existing on
or prior to the Effective Date, whether known or unknown, except for Xx. Xxxxx'x
violation of this Agreement or acts which may hereafter arise between them.
10. Indemnity. The Company shall, to the fullest extent authorized or
permitted by the Michigan Business Corporation Act and federal law, (a)
indemnify Xx. Xxxxx, and his heirs, personal representatives, executors,
administrators and legal representatives, to the extent he was, is, or is
threatened to be made, a party to any threatened, pending or completed action,
suit or proceeding (whether civil, criminal, administrative or investigative) by
reason of the fact that he is or was a director, officer, employee or agent of
the Company or is or was serving at the request of the Company as a director,
officer, employee, member or agent of another corporation, partnership, limited
liability company, joint venture, trust or other enterprise (collectively,
"Covered Matters"); and (b) pay or reimburse the reasonable expenses incurred by
Xx. Xxxxx and his or her heirs, executors, administrators and legal
representatives in connection with any Covered Matter in advance of final
disposition of such Covered Matter as the same shall become due.
11. Disparagement. The parties will not make, participate in the making of,
or encourage any other person to make, any statements, written or oral, which
criticize, disparage or defame the goodwill or reputation of, or which are
intended to embarrass or adversely affect the morale of the other party and in
the case of Company, any of its respective present, former or future directors,
officers, executives, employees and/or shareholders. The parties agree not to
make any negative statements, written or oral, relating to their association,
the termination of their association, or any aspect of the business of the
Company. Notwithstanding the foregoing, nothing in this Section 11 shall
prohibit any person from making truthful statements when required by order of a
court or other body having jurisdiction or in a discussion with recruiters and
prospective employers, including to explain Xx. Xxxxx'x separation from Company.
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IN WITNESS WHEREOF, the parties have signed this Agreement on the date
set forth in the introductory paragraph above.
THIS IS AN AGREEMENT FOR RELEASE AND WAIVER OF CLAIMS
ROCK FINANCIAL CORPORATION
By: /s/ XXXXXX XXXXXXX
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Its: President
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/s/ XXXXXX XXXXX
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Xxxxxx Xxxxx
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