EXHIBIT 10.1
GENERAL RELEASE AND SEPARATION AGREEMENT
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This General Release and Separation Agreement (hereafter "Agreement") is
entered into this 30th day of May, 2000, between ▇▇▇▇ ▇. ▇▇▇▇▇ (the
"Executive"), and ▇▇▇▇▇ & ▇▇▇▇▇ Company, a Delaware corporation (the "Company").
WHEREAS, the Executive is the Chief Executive Officer and President of the
Company pursuant to an Employment Agreement entered into as of February 22,
1996, as amended, which expires on June 30, 2000 (the "Employment Agreement");
WHEREAS, the Company and the Executive mutually agree that the period of the
Executive's employment shall not be extended beyond June 30, 2000;
WHEREAS, the Company and the Executive now wish to document the termination of
their employment relationship and fully and finally to resolve all matters
between them;
THEREFORE, in exchange for the good and valuable consideration set forth herein,
the adequacy of which is specifically acknowledged, the Executive and the
Company hereby agree as follows:
1. Resignation of Employment. The Executive hereby resigns all positions
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that the Executive holds as an officer of the Company and all subsidiaries of
the Company, and all positions that the Executive holds on the Board of
Directors of the Company and on the Boards of Directors of any of the Company's
subsidiaries, and the Company accepts such resignations, effective May 25, 2000
(the "Resignation Date"). The Executive further resigns his employment with the
Company effective December 31, 2000.
2. Payment of Base Salary and Benefits Through June 30, 2000. The Company
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shall pay to the Executive his current base salary and all benefits through June
30, 2000. Such payments shall be made in accordance with the Company's regular
payroll practices. No later than June 15, 2000, the Company shall pay to the
Executive in a lump sum an amount equal to all accrued vacation, less applicable
withholding.
3. Payment of Bonus for the Fiscal Year Ending June 30, 2000. The Company
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shall pay to the Executive the bonus described in the Employment Agreement with
respect to the fiscal year ending June 30, 2000, except that the bonus shall be
the sum of (i) a pro-rated bonus based upon the Company's actual net income for
the period from July 1, 1999 through April 30, 2000 and, (ii) 100 percent of the
Executive's monthly base salary for each of May and June 2000. Said bonus shall
be paid on or before June 15, 2000 in accordance with the Company's regular
payroll practices.
4. Consulting Period. For the period commencing July 1, 2000 and ending
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December 31, 2000 (the "Consulting Period"), the Executive shall make himself
available to the Company, as the Company may request, as a consultant. The
Company shall pay the Executive an aggregate of $225,000 (two hundred twenty-
five thousand dollars) for his availability as a
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consultant, whether or not the Executive is requested to provide services. Said
payment shall be made in accordance with the Company's regular payroll
practices.
5. Separation Pay. For a period beginning on January 1, 2001 and ending
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on December 31, 2001, the Company shall pay the Executive his current monthly
base salary, as provided by the Employment Agreement (the "Separation Pay"). In
addition, the Company shall continue all benefits or their equivalent, as
provided by the Employment Agreement, for the period beginning on July 1, 2000
and ending on June 30, 2001. Payments of base salary shall be made in
accordance with the Company's regular payroll practices.
6. Stock Options. Effective as of the date of Board approval, the Company
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shall cancel all options to purchase stock in the Company that the Executive has
(whether or not then vested) as of June 30, 2000. The number of options
cancelled total 465,000 (four hundred sixty-five thousand). The Company shall
purchase such options for $1,622,125 (one million six-hundred twenty-two
thousand one hundred twenty-five dollars) (the "Option Payment"). The Option
Payment shall be made in two equal installments. One-half of the Option Payment
shall be made on or before June 15, 2000. One-half of the Option Payment shall
be made on or before August 15, 2000. In the event that for a period of 20
(twenty) or more consecutive trading days ending on or before December 31, 2000,
the last reported sales price for the common stock of the Company is more than
$7 (seven dollars), then the Company shall pay to the Executive in a lump sum
$302,250 (three hundred two thousand two hundred fifty dollars) (the
"Supplemental Option Payment"). Said Supplemental Option Payment shall be made
on or before January 15, 2001.
7. Change Of Control. In the event that there is a signed agreement on or
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before December 31, 2000 that leads to a "Change of Control" as defined in the
▇▇▇▇▇ & ▇▇▇▇▇ Company Executive Change of Control Plan (the "Plan") dated as of
May 10, 1999, then the Executive shall be entitled to the salary and bonus
payments described in the Plan as if the Executive were still in the Company's
employ, less all Separation Pay paid pursuant to this Agreement. In the event
that the Executive is entitled to payments under the Change of Control Plan,
said payments shall be calculated based upon his base salary during the last 12
(twelve) months of the Executive's employment and the highest bonus under the
Company's bonus plan for the last three full calendar years prior to the
Effective Date of the Plan, annualized as may be required by the terms of the
Plan.
8. General Release of Claims by the Executive.
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(a) The Executive, on behalf of himself and his executors,
heirs, representatives and assigns, hereby agrees to release and
forever discharge ▇▇▇▇▇ & ▇▇▇▇▇ Company and all predecessors,
successors and their respective parent corporations, affiliates,
related, and/or subsidiary entities, and all of their past and present
directors, shareholders, officers, general or limited partners,
employees, agents, and attorneys, and agents and representatives of
such entities, and employee benefit plans in which the Executive is or
has been a participant by virtue of his employment with Company, from
any and all claims, debts, demands, accounts, judgments, rights,
causes of action, equitable relief, damages, costs, charges,
complaints, obligations, promises, agreements, controversies, suits,
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expenses, compensation, responsibility and liability of every kind and
character whatsoever (including attorneys' fees and costs), whether in
law or equity, known or unknown, asserted or unasserted, suspected or
unsuspected (collectively, "Claims"), which the Executive has or may
have had against such entities based on any events or circumstances
arising or occurring on or prior to the date hereof or on or prior to
the Resignation Date, arising directly or indirectly out of, relating
to, or in any other way involving in any manner whatsoever the
Executive's employment by the Company or the separation thereof, and
any and all claims arising under federal, state, or local laws
relating to employment, including without limitation claims of
wrongful discharge, breach of express or implied contract, fraud,
misrepresentation, defamation, or liability in tort, claims of any
kind that may be brought in any court or administrative agency, any
claims arising under Title VII of the Civil Rights Act of 1964, the
Age Discrimination in Employment Act, the Americans with Disabilities
Act, the Older Workers Benefit Protection Act, the Fair Labor
Standards Act, the Employee Retirement Income Security Act, the Family
and Medical Leave Act, and similar state or local statutes,
ordinances, and regulations.
(b) In accordance with the Older Workers Benefit Protection Act of 1990,
the Executive acknowledges that he is aware of the following:
(i) He has a right to consult with an attorney before accepting this
offer;
(ii) He has 21 days from the date this offer is received to consider
this offer; and
(iii) He has seven days after accepting this offer to revoke his
acceptance, and his acceptance will not be effective until that
revocation period has expired.
9. Release of Claims By The Company. The Company hereby agrees to release
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and forever discharge the Executive and his executors, heirs, representatives
and assigns, from any and all claims, debts, demands, accounts, judgments,
rights, causes of action, equitable relief, damages, costs, charges, complaints,
obligations, promises, agreements, controversies, suits, expenses, compensation,
responsibility and liability of every kind and character whatsoever (including
attorneys' fees and costs), whether in law or equity, known or unknown, asserted
or unasserted, suspected or unsuspected (collectively, "Claims"), which the
Company has or may have against the Executive based on any events or
circumstances that are known to the Board of Directors of the Company.
10. Nondisparagement. The Executive agrees that neither he nor anyone
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acting by, through, or in concert with him, shall disparage or otherwise
communicate negative statements or opinions about the Company, its Board
members, officers, employees or business. The Company agrees that neither it nor
anyone acting by, through or in concert with the Company shall disparage or
otherwise communicate negative statements or opinions about the Executive.
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11. Cooperation. The Executive agrees to give reasonable cooperation to
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the Company in any pending or future litigation or arbitration brought against
the Company and in any investigation the Company may conduct.
12. Confidential Information; Return of Company Property.
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Except as may be required by law, the Executive shall maintain in confidence and
shall not directly, indirectly or otherwise, use, disseminate, disclose or
publish, or use for his benefit or the benefit of any person, firm, corporation
or other entity, any information relating to, or to be used in, any litigation
or arbitration in which the Company is a party, or any confidential or
proprietary information of or relating to the Company, including, without
limitation, confidential or proprietary information or trade secrets with
respect to the Company's operations, processes, products, inventions, business
practices, finances, principals, vendors, suppliers, customers, potential
customers, marketing methods, costs, prices, contractual relationships,
regulatory status, compensation paid to employees or other terms of employment,
or deliver to any person, firm, corporation or other entity any document,
record, notebook, computer program or similar repository of or containing any
such information. The parties hereby stipulate and agree that as between them
the foregoing matters are important, material and confidential proprietary
information or trade secrets and affect the successful conduct of the businesses
of the Company and any successor or assignee of the Company.
The Executive shall deliver to the Company within 10 (ten) business days of
the Resignation Date all originals and copies of correspondence, drawings,
manuals, letters, notes, notebooks, reports, programs, plans, proposals,
financial documents, or any other documents concerning the Company's customers,
business plans, marketing strategies, products, processes or business of any
kind and/or which contain proprietary information or trade secrets which are in
the possession or control of the Executive or his agents. The Executive shall
return to the Company within 10 (ten) business days of the Resignation Date all
property of the Company in his possession or control.
13. Taxes. To the extent any taxes may be due on the payments to the
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Executive provided in this Agreement beyond any withheld by the Company, the
Executive agrees to pay them himself and to indemnify and hold the Company and
the other entities released herein harmless for any tax claims or penalties
resulting from such payments. The Company will pay any excise tax imposed by
Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), on
any payments under this Agreement that are determined to be "parachute payments"
under Section 280G of the Code.
14. In the Event of a Claimed Breach. All controversies, claims and
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disputes arising out of or relating to this Agreement, including without
limitation any alleged violation of its terms, shall be resolved by final and
binding arbitration before a single neutral arbitrator in Chicago, Illinois, in
accordance with the Employment Dispute Resolution Rules of the American
Arbitration Association ("AAA"). The arbitration shall be commenced by filing a
demand for arbitration with the AAA within 14 (fourteen) days after the filing
party has given notice of such
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breach to the other party. The arbitrator shall award the prevailing party
attorneys' fees, as well as the costs and expenses of the arbitration, including
expert fees, if any.
15. Choice of Law. This Agreement shall in all respects be governed and
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construed in accordance with the laws of the State of Illinois, including all
matters of construction, validity and performance, without regard to conflicts
of law principles.
16. Notices. All notices, demands or other communications regarding this
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Agreement shall be in writing and shall be sufficiently given if either
personally delivered or sent by registered or certified mail, return receipt
requested, postage paid, addressed as follows:
If to the Company:
▇▇▇▇▇ & ▇▇▇▇▇ Company
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
If to the Executive:
▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
17. Severability. Except as otherwise specified below, should any portion
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of this Agreement be found void or unenforceable for any reason by a court of
competent jurisdiction, the parties intend that such provision be limited or
modified so as to make it enforceable, and if such provision cannot be modified
to be enforceable, the unenforceable portion shall be deemed severed from the
remaining portions of this Agreement, which shall otherwise remain in full force
and effect. If any portion of this Agreement is so found to be void or
unenforceable for any reason in regard to any one or more persons, entities, or
subject matters, such portion shall remain in full force and effect with respect
to all other persons, entities, and subject matters. This paragraph shall not
operate, however, to sever either party's obligation to provide the binding
release to all entities intended to be released hereunder.
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18. Understanding and Authority. The parties understand and agree that
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all terms of this Agreement are contractual and are not a mere recital, and
represent and warrant that they are competent to covenant and agree as herein
provided.
The parties have carefully read this Agreement in its entirety; fully
understand and agree to its terms and provisions; and intend and agree that it
is final and binding on all parties.
IN WITNESS WHEREOF, and intending to be legally bound, the parties have
executed the foregoing on the dates shown below.
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇ COMPANY
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Director
Date 5/30/00 Date 5/30/00
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