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 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 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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