Exhibit 10.4
Execution Copy
SEPARATION AGREEMENT
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This Separation Agreement (this "Agreement") is made and entered into this
20th day of June, 2000, by and among Xxxxxx Xxxx Educators Corporation, a
Delaware corporation ("HMEC"), Xxxxxx Xxxx Service Corporation, an Illinois
corporation ("HMSC"), and Xxxxx X. Xxxxxx, an Illinois resident ("Employee").
HMEC and HMSC are collectively referred to herein as the "Company."
1. Novation and Replacement of Prior Agreement. Employee and the Company
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hereby agree that the Separation Agreement entered into among them dated March
21, 2000 is, upon the execution of this Agreement, null and void and of no
effect. That prior agreement shall be replaced in its entirety by this
Agreement and none of the provisions of the prior agreement shall take, or be
deemed to have come into, effect.
2. Employment as Temporary Employee and Subsequent Resignation. Employee
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and the Company hereby agree that the last day of Employee's employment with the
Company as a regular, full-time employee shall be June 22, 2000. Employee and
the Company also agree that for the period of June 23, 2000 through June 22,
2002, HMSC shall employ Employee, and Employee shall accept employment with
HMSC, as a temporary employee with the title of Financial Advisor. To the
extent not already done, Employee hereby resigns as an officer and director of
the Company and all affiliated companies effective June 22, 2000 and the Company
hereby accepts such resignation. Employee hereby resigns as an employee of the
Company effective June 22, 2002 and the Company hereby accepts such resignation.
Notwithstanding any public statements by Employee or the Company regarding the
termination of Employee's employment with the Company, Employee understands and
acknowledges that effective June 22, 2000 and June 22, 2002 he is not "retiring"
from employment with the Company as that term is used in any of the Company's
benefit, pension or compensation plans. Employee shall be paid his current
salary and benefits through June 22, 2000, thereafter shall be compensated as a
temporary employee upon such terms and conditions as may mutually be agreed
between the Company and the Employee (which may include under the Company's
Short Term Incentive Program and/or Long Term Incentive Program for 2000,
bonuses based on the Employee's eligible compensation through June 22 but will
not include any bonus based on achievement of the Company's recent strategic
initiatives) and, assuming that he remains a temporary employee of the Company
through June 22, 2002, shall be treated under all employee plans of the Company
(including, without limitation, stock option plans) as a temporary employee who
has resigned from the Company on June 22, 2002, provided however, that all
options to purchase Common Stock of HMEC granted to Employee prior to June 22,
2000 ("Stock Options") which have not vested prior to June 22, 2001 will vest on
that date. Notwithstanding anything else contained herein, Employee agrees that
his Bonus Agreement with the Company dated as of September 12, 1994 and his
Severance Agreement with the Company dated as of December 27, 1991 shall both
terminate on June 22, 2000 and shall be of no further force and effect
thereafter. Employee's agreement to the provisions of this Agreement provided
for below is made in
consideration of the Company's agreement to retain Employee as a temporary
employee and the acceleration of option vesting as provided for above.
Employee's change of employee status to become a temporary employee and his
subsequent resignation shall not affect his rights to indemnification by the
Company by reason of his being an officer, director or employee of the Company
or any of its subsidiaries or affiliates, pursuant to the Company's corporate
documents and otherwise.
3. Releases and Covenant Not to Xxx.
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(a) Employee, for himself, his agents, legal representatives, assigns,
heirs, distributees, devisees, legatees, administrators, personal
representatives and executors (the "Releasing Parties"), hereby releases and
forever discharges the Company, its present and past subsidiaries and
affiliates, successors and assigns, and their respective present and past
officers, directors, employees and agents (the "Released Parties"), from any and
all claims, demands, actions, liabilities and other claims for relief and
remuneration whatsoever, whether known or unknown, arising or which could have
arisen up to and including June 22, 2000, including without limitation those
arising out of or relating to Employee's employment, change of employment status
and resignation from employment effective June 22, 2002 and any claims arising
under Title VII of the Civil Rights Act of 1964 (as amended by the Civil Rights
Act of 1991), the Equal Pay Act, the Fair Labor Standards Act, the Older Workers
Benefits Protection Act, the Age Discrimination in Employment Act, the Illinois
Human Rights Act, the Illinois Wage Payment and Collection Act, the Employee
Retirement Income Security Act ("ERISA") or any other federal, state or local
statute, law, ordinance, regulation, code or executive order, any tort or
contract claims, and any of the claims, matters and issues which could have been
asserted by Employee against the Company in any legal, administrative or other
proceeding, provided that the Releasing Parties do not release potential claims
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(i) for failure of the Company to comply with this Agreement, (ii) arising under
ERISA or otherwise with regard to any benefits to which Employee is entitled in
accordance with the Company's benefit programs by virtue of his employment with
the Company or (iii) arising from any fraud or criminal activity committed by
the Company.
(b) Employee further agrees not to assert any claim, charge or other legal
proceeding against the Released Parties, in any forum, based on any events,
whether known or unknown, which are the subject of the release contained in
section (a) above. If Employee brings any such proceeding, Employee shall
immediately forfeit any right to continued compensation or other consideration
from the Company pursuant to this Agreement.
(c) The Released Parties hereby release and forever discharge Employee and
the other Releasing Parties from any and all claims, demands, actions,
liabilities and other claims for relief and remuneration whatsoever, whether
known or unknown, arising out of or relating to Employee's employment, change of
employment status or resignation from employment effective June 22, 2002 or the
performance of his duties on behalf of the Company through June 22, 2000. The
Released Parties hereby covenant not to file any charge, action, complaint or
claim whatsoever against Employee which are based upon the claims released by
them hereunder. However, notwithstanding anything contained in this Agreement,
including this section, the Released Parties reserve the right to file a claim
or lawsuit to enforce this Agreement and the right to bring any action against
Employee arising from any fraud or criminal activity committed by him while
employed by the Company.
4. Restrictive Covenants.
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(a) Employee agrees that, through June 22, 2002, Employee will not
knowingly, directly or indirectly, solicit any person who, at any time during
the one year period ending on June 22, 2000 was employed or retained by the
Company, to terminate such person's employment or retention by the Company for
the purpose of becoming employed or retained by Employee or any other person to
perform the same or similar services that such person performed for the Company
or the Company's successors or assigns.
(b) Employee agrees that he will not, at any time, disclose to any person,
or otherwise use or exploit, any of the proprietary or confidential information
or knowledge, including without limitation trade secrets, research proposals,
reports, methods, techniques, computer programming or budgets or other financial
information, regarding the Company, its business, properties or affairs obtained
by him at any time except as required by law or legal process. On June 22,
2002, Employee will promptly deliver to the Company all documents and materials
of any nature pertaining to the Company which contain any such information and
will not take with him any documents or materials or copies thereof containing
any such information.
(c) Employee covenants, agrees and recognizes that because the breach or
threatened breach of the covenants and agreements set forth in this Section 4,
or any of them, will result in immediate and irreparable injury to the Company,
the Company shall be entitled to an injunction restraining Employee from any
violation of this Section 4 to the fullest extent allowed by law. Employee
further covenants, agrees and recognizes that in the event of a violation of any
of the covenants and agreements set forth in this Section 4, the Company shall
be entitled to receive all such amounts to which the Company would be entitled
as damages under law or at equity. Nothing herein shall be construed as
prohibiting the Company from pursuing any other legal or equitable remedies that
may be available to it for such breach, including the recovery of damages from
Employee.
(d) Employee expressly acknowledges and agrees that (i) the covenants and
agreements set forth in this Section 4 are reasonable and are necessary to
protect the legitimate business and competitive interests of the Company and
(ii) each of the covenants and agreements set forth in this Section 4 is
separately and independently given, and each such covenant and agreement is
intended to be enforceable separately and independently of the other such
covenants and agreements, including without limitation enforcement by
injunction; in the event that any provision of this Agreement shall be held
invalid or unenforceable by a court of competent jurisdiction, such invalidity
or unenforceability shall attach only to the particular aspect of such provision
found invalid or unenforceable as applied and shall not render invalid or
unenforceable any other provisions of this Agreement which shall be construed as
if the provision or other basis on which this Agreement has been challenged had
been more narrowly drafted so as not to be invalid or unenforceable.
5. Voluntary Agreement. Employee acknowledges and states that he has read
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this Agreement, that he has had opportunity to, and has been advised, orally and
in writing hereby, to consult with legal counsel prior to executing this
Agreement, that he understands the legal effect and binding nature of this
Agreement and that he is acting voluntarily and with full knowledge of his
actions in executing this Agreement.
6. Governing Law. This Agreement shall be governed by and construed and
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enforced in accordance with the laws of the State of Illinois, without giving
effect to its conflict or choice of law provisions.
7. Miscellaneous. No provision of this Agreement may be modified, waived
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or discharged unless such waiver, modification or discharge is agreed to in
writing signed by the parties hereto. No waiver by any party hereto at any time
of any breach by any other party hereto of, or compliance with, any condition or
provisions of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time. No agreements or representations, oral or otherwise,
express or implied, with respect to the subject matter hereof have been made by
any party which are not set forth expressly in this Agreement. Headings in this
Agreement are for convenience only and shall not be used to interpret or
construe its provisions. This Agreement may be executed in counterparts, each
of which shall be deemed to be an original but all of which together will
constitute one and the same instrument. This Agreement constitutes the entire
agreement among the parties hereto regarding the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
XXXXXX XXXX EDUCATORS CORPORATION
By /s/ Xxxxx X. Lower II
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Name: Xxxxx X. Lower II
Title: President and CEO, Member of the HMEC Board of Directors
XXXXXX XXXX SERVICE CORPORATION
By /s/ Xxxxx X. Lower II
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Name: Xxxxx X. Lower II
Title: President and CEO
EMPLOYEE
/s/ Xxxxx X. Xxxxxx
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XXXXX X. XXXXXX
