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AGREEMENT EXHIBIT 10.1
THIS AGREEMENT ("this Agreement") is entered into as of the
22nd day of December, 2000, by and among BLOCK FINANCIAL CORPORATION, a Delaware
corporation ("BFC"), Xxxxx X. Xxxxxx ("Xxxxxx"), and Xxxxxxxx X. Xxxxxx
(Xxxxxxxx X. Xxxxxx for the sole purpose of Section 4(b) of this Agreement).
ARTICLE ONE
TERMINATION OF EMPLOYMENT
1. Mutual Agreement to Terminate Employment Agreement. BFC and
Xxxxxx acknowledge and agree that they are parties to an Employment Agreement
dated January 31, 2000 ("Employment Agreement") and that, pursuant to Section
1.06(b) of the Employment Agreement, the parties desire to terminate Xxxxxx'x
employment under the Employment Agreement by this Agreement. Such employment and
the Employment Agreement shall terminate effective as of the close of business
on December 31, 2000, or such earlier date as is agreed upon by the parties in
writing (the "Termination Date"). By this agreement, the parties agree to waive
any notice of termination required by the Employment Agreement. The parties
agree that the "Reason for Termination" to be specified in the Form U-5, Uniform
Termination Notice for Securities Industry Registration, to be filed with the
Central Registration Depository, will be "Voluntary." Unless otherwise agreed in
this Agreement, the termination of the Employment Agreement shall not be
effective as to those portions of the Employment Agreement which, by their
express terms as set forth therein, require performance by either party
following termination of the Employment Agreement.
2. Resignations as Director and Officer. Xxxxxx will resign
(a) as President, Financial Services Group of BFC and (b) from any and all
officer and director positions held with BFC, its parents, affiliates and
subsidiaries. Each such resignation shall be effective as of the Termination
Date. Xxxxxx shall execute resignations substantially in the form attached
hereto as Exhibit A contemporaneously with his execution of this Agreement.
3. Compensation and Benefits.
(a) For purposes of this Agreement and the mutual agreement of
the parties as to the matters of compensation and benefits addressed in the
Employment Agreement, the parties agree that Xxxxxx shall receive compensation
and benefits from BFC after the Termination Date as if BFC terminated Xxxxxx'x
employment under the Employment Agreement for a reason other than for "cause" on
the Termination Date, and the provisions of Section 1.06(a) of the Employment
Agreement shall apply. The provisions of Section 1.06(a) of the Employment
Agreement read as follows:
"1.06 - Termination of Employment.
(a) Termination Due to a Change in Control or Without Cause.
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(i) If Executive terminates Executive's employment
under this Agreement during the 180-day period following the date of
the occurrence of a "Change in Control" of Block, or if BFC terminates
Executive's employment under this Agreement for any reason other than
for "cause," then, upon any such termination of Executive's employment,
(A) BFC shall pay to Executive compensation at an annual rate equal to
the sum of (I) the annual rate of Base Salary in effect upon such
termination, and (II) the aggregate short-term incentive compensation
(under the H&R Block Short-Term Incentive Plan and any discretionary
incentive program) paid by BFC to Executive for the last fiscal year
completed before the fiscal year in which the termination of employment
occurs (or, if such termination occurs prior to end of the fiscal year
in which the Employment Date occurs, the amount of actual aggregate
short-term incentive compensation to which Executive would have been
entitled (with any discretionary incentive compensation calculated at
target) had Executive remained employed through the last day of such
fiscal year), such compensation to be paid throughout the one-year
period following such termination at such periodic intervals as Base
Salary would have been made had Executive remained employed by BFC
hereunder; (B) any portion of any option to purchase shares of Block
common stock granted pursuant to Subsections 1.03(e) or 1.05 of this
Agreement and held by Executive at the time of such termination of
employment that is not yet vested in accordance with its terms shall
fully vest upon the date of such termination of employment, and shall
be exercisable to the extent so vested for a period of three months
after such date of termination of employment; (C) any Restricted Shares
granted pursuant to Subsection 1.03(f) of this Agreement and held by
Executive at the time of such termination of employment that are not
yet vested (meaning the Shares are still subject to restrictions) shall
fully vest upon the date of such termination of employment, and all
restrictions on any Restricted Shares so vested shall terminate; and
(D) HRB shall, during the one-year period following such termination,
continue Executive's health, basic life, and disability insurance
benefits (such health insurance benefits to be provided by BFC's
payment (whether directly or by reimbursement) of Executive's
premiums/contributions due as a result of Executive selecting
continuation coverage (COBRA) under the plan providing such benefits)
but only to the extent Executive does not obtain similar benefits paid
for by a third party after such termination."
(b) The parties agree that, in accordance with Section 1.06(c)
of the Employment Agreement, upon termination of Xxxxxx'x employment under such
Employment Agreement, BFC shall have no further obligations to Xxxxxx under the
Employment Agreement and no further payments of Base Salary or other
compensation or benefits shall be payable by BFC to Xxxxxx, except (i) as set
forth in Section 1.06 of the Employment Agreement, (ii) as required by the
express terms of any written benefit plans or written arrangements maintained by
BFC and applicable to Xxxxxx at the time of such termination of Xxxxxx'x
employment, (iii) as
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may be required by law, or (iv) as may be mutually agreed upon between the
parties in this Agreement.
4. Repayment of Loan; Purchase of Home.
(a) The parties acknowledge and agree that, pursuant to
Article Two of the Employment Agreement, BFC agreed to loan to Xxxxxx $250,000
on February 14, 2000, that the $250,000 was loaned to Xxxxxx on February 16,
2000, and that Xxxxxx executed a promissory note dated February 16, 2000,
evidencing the terms of such loan (the "Note"). Under the Note, Xxxxxx is
obligated to pay $63,441.44 to BFC on February 16, 2001 and on the February 16
of each succeeding year through February 16, 2005. BFC agrees to permit Xxxxxx
to postpone without penalty or default the first payment of $63,441.44 under the
Note until the "Closing Date" (as defined in Section 4(b) of this Agreement), if
the Closing Date is after February 16, 2001. BFC further agrees to waive and
forgive all payments under the Note on the Closing Date, subject to the
completion and satisfaction of the assignment described in Section 4(b) of this
Agreement. The parties acknowledge and agree that any such waiver and
forgiveness will result in Xxxxxx'x recognition of taxable income in the year in
which the Closing Date and such waiver and forgiveness occur and that BFC has no
withholding obligations with respect to such taxable income.
(b) The parties acknowledge that Xxxxxx and Xxxxxxxx X. Xxxxxx
(the "Kaspers") are parties to that certain Residential New Construction Sale
Contract dated April 1, 2000 and attached hereto as Exhibit B (the "Contract"),
under which the Kaspers have agreed to purchase a personal residence located at
00000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxx 00000 (the "Home"), from Xxxxxx, Inc. (the
"Seller"). The parties further acknowledge that as of the Termination Date, the
purchase price of the Home is $1,288,036.10 (the "Purchase Price"), of which
amount the Kaspers have paid $119,500, with the remaining $1,168,536.10 due on
the date the purchase of the Home closes (the "Closing Date"). The Kaspers and
BFC agree that on the Closing Date the Kaspers will assign the Contract and all
amendments thereto to BFC, subject to the approval of the Seller, and that BFC
will become the owner of the Home. The Kaspers will execute an Assignment and
Assumption Agreement substantially in the form attached hereto as Exhibit C on
the Closing Date. Between the Termination Date and the Closing Date the Kaspers
agree to notify BFC of any proposed modifications to the Home as presently
designed and/or any amendments to the Contract at least five (5) business days
prior to the performance of any such modifications or the execution of any such
amendment, and that BFC has the sole right to approve or reject such
modifications and such amendments. Absent such prior approval from BFC, the
Kaspers agree not to proceed with any modifications to the Home or amendments to
the Contract. After the Closing Date, if BFC sells the Home and the sales price
(net of any advertising expenses incurred to sell the Home, broker commissions,
other closing costs, and the estimated taxes payable as a result of the sale) is
greater than the Purchase Price (as the same may be adjusted pursuant to
amendments to the Contract approved by BFC pursuant to this Section 4(b)) (the
difference between such sales price and such Purchase Price being the "Profit"),
BFC agrees to pay to the Kaspers the lesser of the Profit or $119,500 as soon as
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reasonably practicable after such expenses, commissions, costs and estimated
taxes are determined. BFC shall have no obligations with respect to such
$119,500 except for the conditional obligation set forth in the immediately
preceding sentence.
5. Business Expenses; Commitments. BFC shall promptly pay
directly, or reimburse Xxxxxx for, all business expenses, to the extent such
expenses are paid or incurred by Xxxxxx during the term of the Employment
Agreement in accordance with BFC's policy in effect from time to time and to the
extent such expenses were reasonable and necessary to the conduct by Xxxxxx of
BFC's business; provided, however, during the period from the date of this
Agreement through the Termination Date and at all times thereafter, Xxxxxx will
not initiate, make, renew, confirm or ratify any contracts or commitments for or
on behalf of BFC or any of its affiliates, nor will Xxxxxx incur any expenses on
behalf of BFC without BFC's prior written consent.
6. Conduct.
(a) Xxxxxx'x Conduct. During the period from the date of this
Agreement through the Termination Date, Xxxxxx will be reasonably and
appropriately responsive to, and fully supportive of the management of BFC and
its affiliates and will be cooperative with such management in providing
information regarding areas of his expertise and experience with BFC. During the
period from the date of this Agreement through the Termination Date, and for the
two-year period after the Termination Date, Xxxxxx will not (a) defame BFC, its
affiliates or their respective directors and employees, (b) make disparaging
statements to the media, to any employee or contractor of BFC or its affiliates,
or to any other person or entity concerning BFC or any of its affiliates, their
respective directors and employees or any matter related to his employment or
non-employment, or (c) do any deliberate act designed primarily to injure the
business or reputation of BFC or any of its affiliates.
(b) BFC's Conduct. During the period from the date of this
Agreement through the Termination Date, and for the two-year period after the
Termination Date, BFC will not (a) defame Xxxxxx, (b) make disparaging
statements to the media, to any employee or contractor of BFC or its affiliates,
or to any other person or entity regarding Xxxxxx, his performance, character,
status or any other personal or professional matter, or (c) do any deliberate
act designed in whole or in part to injure, embarrass or damage Xxxxxx'x
reputation.
7. Release by Xxxxxx. In consideration of BFC's promise to
Xxxxxx of the compensation and benefits specified in Section 3 of this
Agreement, the loan forgiveness specified in Section 4 of this Agreement, and
BFC's other promises and agreements set forth in this Agreement, Xxxxxx for
himself and for his relations, heirs, legal representatives and assigns
unconditionally releases and forever discharges BFC, H&R Block, Inc., and all
other affiliates of BFC, their respective present and past directors, officers,
employees, agents, predecessors, successors, and assigns of and from any and all
claims, demands, actions, causes of action and suits of any kind whatsoever,
whether under federal or state statute, local regulation or at common law or
which thereafter arise from any matter, fact, circumstance, event, happening or
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thing whatsoever occurring or failing to occur prior to the date of this
Agreement involving Xxxxxx'x employment by BFC or any affiliate of BFC
including, without limitation, Xxxxxx'x hiring, compensation earned as of or
before the date of this Agreement, the termination of Xxxxxx'x responsibilities
as an officer of BFC and as a director and/or officer of each affiliate of BFC,
Xxxxxx'x termination as an employee of BFC, other obligations of BFC or any
other BFC affiliate (except for those obligations expressly stated in this
Agreement, the post-termination provisions of the Employment Agreement or
applicable benefit plans), and further including, but not limited to, any claims
for race, sex or age discrimination under the Age Discrimination in Employment
Act, as amended ("ADEA"), Title VII of the Civil Rights Act of 1964, the 1991
amendments of such Civil Rights Act, the Americans with Disabilities Act, as
amended, and all other federal and state statutes and common law doctrines.
8. Consideration of Release of ADEA Claims. With regard to the
waiver/release of rights or clams under the ADEA, Xxxxxx acknowledges and
understands that this is a legal document and that he is legally entitled to,
and has been offered, a period of twenty-one (21) days (the "Consideration
Period") to consider the waiver/release of such rights or claims under this
Agreement before signing it. After signing this Agreement, Xxxxxx may revoke the
waiver/release of rights or claims under the ADEA by giving written notice
("Revocation Notice") to Xxxx X. Xxxxx, President of BFC, 0000 Xxxx Xxxxxx,
Xxxxxx Xxxx, Xxxxxxxx 00000, within seven (7) days after the date of signing
(such seven (7) day period, the "Revocation Period" and such date of signing,
the "Signing Date"). For such revocation to be effective, the Revocation Notice
must be received no later than 5:00 p.m., Kansas City, Missouri time, on the
seventh (7th) day after the Signing Date. If Xxxxxx provides the Revocation
Notice to BFC this Agreement will be null, void and unenforceable by either
party, and BFC will have no obligation to make any payments to Xxxxxx hereunder.
9. Acknowledgements. Xxxxxx acknowledges that BFC has advised
him to consult with an attorney prior to signing this Agreement or before the
expiration of the Revocation Period. Xxxxxx specifically acknowledges and agrees
that either the full twenty-one (21) day Consideration Period has lapsed or he
has been offered such twenty-one (21) day Consideration Period but has elected
to waive and forego all of the applicable days which have not yet lapsed in such
twenty-one (21) day Consideration Period. Xxxxxx acknowledges and agrees that
upon such consideration he has decided to waive and release any claims that he
may have under the ADEA, pursuant to the terms of this Agreement.
10. Waiver. BFC agrees to waive the post-termination
obligations of Xxxxxx under Sections 4.04(b) and 4.04(c) of the Employment
Agreement without affecting Xxxxxx'x rights to compensation and benefits under
Section 3 of this Agreement and its incorporation of the terms of Section
1.06(a) of the Employment Agreement. Notwithstanding the foregoing, BFC does not
waive Xxxxxx'x post-termination obligations under Section 3.02 and Section 4.02
of the Employment Agreement and such obligations shall remain in full force and
effect. For purposes of Section 4.02 of the Employment Agreement, the payments
received by Xxxxxx pursuant to Section 3 of this Agreement shall be considered
payments received by Xxxxxx
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pursuant to the Employment Agreement.
11. Third-Party Beneficiary. The parties hereto agree that H&R
Block, Inc. is a third-party beneficiary as to the obligations imposed upon
Xxxxxx under the Employment Agreement and this Agreement and as to the rights
and privileges to which BFC is entitled pursuant to the Employment Agreement and
this Agreement, and that H&R Block, Inc. is entitled to all of the rights and
privileges associated with such third-party-beneficiary status.
12. Entire Agreement. This Agreement and the post-termination
obligations of the Employment Agreement constitute the entire agreement and
understanding between BFC and Xxxxxx concerning the subject matter hereof. No
modification, amendment, termination, or waiver of this Agreement shall be
binding unless in writing and signed by Xxxxxx and a duly authorized officer of
BFC. Failure of BFC, H&R Block, Inc. or Xxxxxx to insist upon strict compliance
with any of the terms, covenants, or conditions hereof shall not be deemed a
waiver of such terms, covenants, and conditions.
13. Successors and Assigns. This Agreement and each of its
provisions shall be binding upon Xxxxxx and the heirs, executors, successors and
administrators of Xxxxxx or his estate and property, and shall inure to the
benefit of BFC, H&R Block, Inc. and their successors and assigns. Section 4(b)
shall be binding upon Xxxxxxxx X. Xxxxxx and the heirs, executors, successors
and administrators of Xxxxxxxx X. Xxxxxx or her estate and property, and shall
inure to the benefit of BFC, H&R Block, Inc. and their successors and assigns.
Neither Xxxxxx nor Xxxxxxxx X. Xxxxxx may assign or transfer to others the
obligation to perform their respective duties hereunder.
14. Specific Performance by Executive. The parties acknowledge
that money damages alone will not adequately compensate BFC or Block for breach
of any of the covenants and agreements herein and, therefore, in the event of
the breach or threatened breach of any such covenant or agreement by either
party, in addition to all other remedies available at law, in equity or
otherwise, a wronged party shall be entitled to injunctive relief compelling
specific performance of (or other compliance with) the terms hereof.
15. Notices. Notices hereunder shall be deemed delivered five
days following deposit thereof in the United States mails (postage prepaid)
addressed to Xxxxxx at: 00000 Xxxxxxxx Xxxxx Xxxxxxx, Xxxxxxxxx X, Xxxxxxx,
Xxxxxx 00000-0000; to Xxxxxxxx X. Xxxxxx at the same address as Xxxxxx (as
provided pursuant to this Section 15), and to BFC at: 0000 Xxxx Xxxxxx, Xxxxxx
Xxxx, Xxxxxxxx 00000; Attn: Xxxx X. Xxxxx, with a copy to Xxxxx X. Xxxxxxxx,
Esq., H&R Block, Inc., 0000 Xxxx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000; or to such
other address and/or person designated by any party in writing to the other
parties.
16. Counterparts. This Agreement may be signed in counterparts
and delivered by facsimile transmission confirmed promptly thereafter by actual
delivery of executed counterparts.
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Executed as a sealed instrument under, and to be governed by, construed
and enforced in accordance with, the laws of the State of Missouri.
XXXXXX:
Dated: December 27, 2000 /s/ Xxxxx X. Xxxxxx
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(the "Signing Date" by Xxxxxx) Xxxxx X. Xxxxxx
Dated: December 27, 2000 /s/ Xxxxxxxx X. Xxxxxx
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Xxxxxxxx X. Xxxxxx
Accepted and Agreed:
BLOCK FINANCIAL CORPORATION,
a Missouri corporation
By: /s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx, President
Dated: December 28, 2000
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