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Exhibit 10.1(a)
TERMINATION AGREEMENT
AND
GENERAL WAIVER AND RELEASE
This AGREEMENT (hereinafter referred to as "Agreement") is made and entered into
effect this 16th day of February 1999, by and between ▇▇▇▇ ▇▇▇▇▇▇ (hereinafter
referred to as "EMPLOYEE") and CHICAGO TITLE AND TRUST COMPANY (hereinafter
referred to as "EMPLOYER").
RECITALS
A. EMPLOYEE is currently employed by EMPLOYER as Executive Vice President.
B. EMPLOYER has decided to terminate EMPLOYEE'S employment relationship.
C. EMPLOYER desires to offer EMPLOYEE certain incentives to cooperate and
assist in the orderly transition of his duties.
D. During the course of his employment, EMPLOYEE has become familiar with
certain confidential information of EMPLOYER which is exceptionally
valuable to EMPLOYER and vital to the success of its business.
E. EMPLOYER wishes to protect its confidential information and other
interests, and EMPLOYEE has agreed to the restrictions contained in
this Agreement in consideration of the payments to be made to EMPLOYEE
hereunder.
F. The parties wish to avoid any controversy, dispute or differences or
any litigation between them and wish to fully settle any and all
possible issues, claims or causes of action that have been raised or
could be raised by EMPLOYEE against EMPLOYER, and of fully settling and
compromising any and all issues, claims or causes of action that
EMPLOYEE has, or may have, or may claim to have, against EMPLOYER
arising out of, or in any way related to, EMPLOYEE's employment and/or
termination of employment with EMPLOYER: and the EMPLOYER will waive
claims for certain known actions of EMPLOYEE.
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NOW, THEREFORE, in consideration of the monies, mutual promises and mutual
covenants contained herein, the parties agree as follows:
1. Effective upon a date to be determined by the Chief Executive Officer,
but no later than March 8, 1999, EMPLOYEE will be relieved of his
responsibilities as Executive Vice President.
2. EMPLOYER shall pay EMPLOYEE a lump sum payment representing the amount
of EMPLOYEE'S unpaid but earned vacation time through March 8, 1999,
less all applicable state and federal taxes and other withholdings plus
those items identified as "Earned Compensation as of February 16, 1999"
on Schedule A attached hereto.
3. After EMPLOYEE is relieved of his responsibilities, EMPLOYER will pay
EMPLOYEE a lump sum payment representing any proper and reasonable
business expenses EMPLOYEE incurred prior to the date he is relieved of
his responsibilities. Said lump sum payment will be calculated pursuant
to applicable policies and procedures of EMPLOYER, provided that
EMPLOYEE submits an expense report not later than ten (10) business
days after the date he is relieved of his responsibilities. Said lump
sum payment shall be paid not later than ten (10) business days of
submission of an expense
4. In consideration of, and in exchange for: (a) EMPLOYEE's signing this
Agreement within twenty-one (21) days of February 16, 1999, without
revocation within the subsequent seven (7) day revocation period
described in Section 18; (b) EMPLOYEE's waiver and release of all
claims or causes of action against EMPLOYER, as set forth in Section 4
of this Agreement; (c) EMPLOYEE's agreement to the restrictions
contained in this Agreement ; (d) EMPLOYEE's covenant not to ▇▇▇
EMPLOYER, EMPLOYER agrees to provide to EMPLOYEE the following:
4.1 Continued participation as an employee in EMPLOYER'S employee
welfare and retirement benefit plans, including but not
limited to participating in EMPLOYER'S flexible spending
account, and group health, dental, life and disability
benefits at such premium rates paid by other employees in
EMPLOYEE'S salary range by continuing to make any applicable
employee contributions through payroll deductions through
March 31, 1999.
4.2 Six (6) monthly payments in the amount of $18,750 per month,
to be paid at the end of each month beginning in April 1999
and continuing through September 1999, for a total payment of
$112,500, which represents an amount equal to one-half of
EMPLOYEE'S annual base pay at the time of termination.
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4.3 Payment in respect of 1500 units granted upon your hiring for
the 1997 cycle in the Long Term Incentive Plan of 1995, which
payment is scheduled for February 2000. The current estimated
value of those units is $633,759 less legally required
withholdings. The value of these units will be fixed following
the completion of the audit of the Company's 1998 earnings and
will be communicated to the EMPLOYEE immediately thereupon.
4.4 Payment into the Company's Savings and Profit-sharing Plan in
late March 1999 in respect of the profit-sharing contribution
attributable to 1998 financial performance.
4.5 Reimbursement of COBRA costs for the EMPLOYEE'S contribution
to the Company's COBRA eligible plans for a period of twelve
(12) months, beginning April 1999 and continuing through March
2000, unless employed and eligible for other group benefits
coverage prior to the end of March 2000.
4.6 Full executive outplacement services to be provided by ▇▇
▇▇▇▇▇▇▇▇, Associates, Inc., a Chicago-based career and
outplacement counseling support services firm.
After March 31, 1999, the parties agree that EMPLOYEE shall not be
deemed an employee of EMPLOYER for any reason, including but not
limited to worker's compensation, benefits, and third party liability.
EMPLOYER agrees that it shall not contest any claim for unemployment
compensation benefits made by the EMPLOYEE with the Illinois Department
of Employment Security.
In the event of EMPLOYEE's death prior to March 8, 1999, the severance
payments that would have been paid to EMPLOYEE under Section 4 above
shall be paid to EMPLOYEE's beneficiary or estate.
EMPLOYEE acknowledges that the payments and benefits, described above
in Sections 4.1 through 4.6 are payments and benefits he would not
normally receive and are in full satisfaction and release of any and
all claims he has or may claim to have against EMPLOYER arising out of
his employment and/or his transfer to inactive employment status and/or
his termination from employment with EMPLOYER including any and all
claims for bonus, benefits or compensation.
5. EMPLOYEE, on behalf of himself and his heirs, executors,
administrators, attorneys and assigns, irrevocably and unconditionally
forever releases, discharges and covenants not to ▇▇▇ EMPLOYER, its
parent company, subsidiaries, divisions, and affiliates, whether direct
or indirect, its and their joint ventures, and joint venturers, its and
their successor companies,
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and all of its and their owners, shareholders, divisions, subdivision,
affiliates, assigns, agents, directors, officers, employees,
representatives, attorneys, and all other persons acting by, through,
under or in connection with them, and each of their respective
successors and assigns (hereinafter collectively referred to as
("Releasees"), from any and all known and unknown actions, causes of
action, claims, damages, punitive damages, suits, obligations,
agreements, attorneys' fees and any other liabilities of any kinds
whatsoever which have or could be asserted against EMPLOYER or
Releasees, arising out of or related to EMPLOYEE's employment with
and/or transfer to inactive employment status with and/or termination
and/or retirement from employment with EMPLOYER and/or any other
occurrence up to and including the date of this Agreement, including
but not limited to:
(a) claims, actions, causes of action or liabilities arising under
Title VII of the Civil Rights Act of 1964, as amended, the Age
Discrimination in Employment Act, as amended, the Employee
Retirement Income Security Act, as amended, the Rehabilitation
Act of 1973, as amended, the Americans with Disabilities Act,
as amended, the Family and Medical Leave Act, as amended,
and/or any other federal, state or municipal employment
discrimination statutes (including, but not limited to, claims
based on age, sex attainment of benefit plan rights, race,
religion, national origin, marital status, sexual orientation,
ancestry, harassment, parental status, handicap, disability,
retaliation, and veteran status); and/or
(b) claims, actions, causes of action or liabilities arising under
any other federal, state, or local statute, law, ordinance or
regulation; and/or
(c) any other claim whatsoever including, but not limited to,
claims for severance pay, benefits, claims based upon breach
of contract, wrongful termination, defamation, intentional
infliction of emotional distress, tort, personal injury,
invasion of privacy, violation of public policy, negligence
and/or any other common law, statutory or other claim
whatsoever arising out of or relating to EMPLOYEE's employment
with and/or separation from employment with EMPLOYER or from
any other event to the date this Agreement, but excluding any
claims or actions which by law cannot be waived.
EMPLOYEE covenants and agrees never to institute any suit, complaint or
action, at law or in equity, in any court of the United States or any
state, county or municipality thereof or before any other tribunal,
public or private, against EMPLOYER or Releasees, or in any way
voluntarily to aid in the institution or prosecution of any suit,
action or claim of any kind, or any other kind of relief, arising from
any matter arising from his
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employment with EMPLOYER or any other occurrences to the date of this
Agreement, and hereby waives any right to recover any monetary relief
as a result of any such proceeding or any proceeding on his behalf.
EMPLOYEE further waives, releases, and discharges EMPLOYER and
Releasees from any reinstatement rights which he may have or could have
and agrees not to seek employment with EMPLOYER and/or any of the other
Releasees. EMPLOYEE acknowledges that he has not suffered any
on-the-job injury for which he has not already filed a claim.
EMPLOYEE specifically acknowledges and agrees that this release and
covenants not to ▇▇▇ is made voluntarily and knowingly and without any
duress or coercion of any kind. The release is not intended to waive
claims or rights which by law cannot be waived, including the right to
file an administrative charge of discrimination, nor is it intended to
waive any claims alleging a violation of the Agreement by EMPLOYER.
EMPLOYEE FURTHER UNDERSTANDS THAT THIS RELEASE AND COVENANT NOT TO ▇▇▇
INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
In the same manner, Releasees waive any and all claims against EMPLOYEE
for EMPLOYEE'S actions KNOWN to any Executive officers, as defined by
the SEC, of Chicago Title Corporation on the date hereof and covenant
not to ▇▇▇ EMPLOYEE for any said actions.
6. EMPLOYEE agrees that he will cooperate fully and lend reasonable
assistance to EMPLOYER and any of its employees, officers, or agents
with regard to any measures of company matters with which he was
involved or had knowledge about or interest in and that he will be
available for consultation with EMPLOYER during the period from the
date EMPLOYEE is relieved of his responsibilities until February 29,
2000 at such reasonable times mutually agreed upon by EMPLOYER and
EMPLOYEE. EMPLOYER shall reimburse EMPLOYEE for reasonable expenses
incurred in connection with such consultation upon submission by
EMPLOYEE of proof of same.
7. EMPLOYEE acknowledges and agrees that during the time of his active
employment, he advised and worked on matters involving EMPLOYER which
may result in controversy, dispute or litigation. With respect to such
transactions, and any other matters in which he may become a witness
for EMPLOYER or may otherwise be required to participate in claims or
litigation with respect thereto, EMPLOYEE agrees that he will fully
cooperate with and lend reasonable assistance to EMPLOYER at all times
after signing this Agreement, including, but not limited to,
investigation, preparation and assistance in defending or prosecuting
any claims, as well
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as appearance on EMPLOYER's behalf at trial, or otherwise. EMPLOYER
shall reimburse EMPLOYEE for reasonable expenses incurred in connection
with such cooperation and assistance upon submission by EMPLOYEE of
proof of same. If such assistance is required after February 29, 2000,
EMPLOYER shall also reimburse EMPLOYEE for EMPLOYEE'S time spent at a
rate of $200.00 per hour.
8. EMPLOYEE agrees not to directly or indirectly through employment or
association with any other person or company, solicit the employment or
engagement of any employees or agents of EMPLOYER or any of its
subsidiaries for two years after termination of employment and EMPLOYEE
will not, at any time, disclose any confidential information of
EMPLOYER or its subsidiaries. In addition, EMPLOYEE will not solicit ,
directly or indirectly, any person or company with whom EMPLOYEE or his
direct reports had any communications on behalf of EMPLOYER, for any
business within the title insurance business, or title related
businesses, of EMPLOYER or any of its subsidiaries for one year after
any termination of employment. However, at any time following
termination by EMPLOYER, EMPLOYEE may elect to waive further payment of
all severance benefits in Section 4 and, in return for that waiver, be
released from this covenant not to compete.
9. EMPLOYEE agrees that he will not any time disparage or defame the
EMPLOYER, or any subsidiary or affiliate thereof, or any of its
services, or any of its officers, directors, employees, or agents, to
any current or future or past employees, customers, clients, vendors or
suppliers of EMPLOYER and EMPLOYER agrees that it will not any time
disparage or defame the EMPLOYEE.
10. Letter of Recommendation. All oral inquires from prospective employers
or others seeking references regarding EMPLOYEE shall be directed to
the Director of Human Resources of EMPLOYER and shall be responded to
as follows:
" We would be pleased to provide you with a reference regarding ▇▇.
▇▇▇▇▇▇. However, it is the policy of Chicago Title and Trust Company
that all reference requests be submitted in writing. Please send your
request to Chicago Title and Trust Company in care of the Director of
Human Resources and we will provide you with a letter of reference
promptly".
Upon receipt of such and all other written requests, EMPLOYER shall
provide a mutually agreeable letter of reference in the form attached
as Exhibit B hereto.
11. EMPLOYEE agrees to keep the terms, conditions and amount of payments of
this Agreement completely CONFIDENTIAL and will not
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hereafter disclose any information concerning this Agreement to anyone,
except that EMPLOYEE may discuss this Agreement with his attorneys,
accountants, financial advisors and his family, but on the condition
that any disclosures or breach of confidentiality by said attorneys,
accountants, financial advisors, or his family; and with respect to
Paragraph 8 only, prospective employers and employment advisors.
EMPLOYER agrees to keep the terms, conditions and amount of payments of
this Agreement completely CONFIDENTIAL and will not hereafter disclose
any information concerning this Agreement to anyone, except that
EMPLOYER may discuss this Agreement with its senior management
employees, human resources employees and attorneys who have a need to
know if its existence.
12. As a material part of this Agreement, EMPLOYEE agrees to the following:
12.1 Definition of Confidential Information. For the purposes of
this Agreement, the term "Confidential Information" shall
mean, but shall not be limited to, any technical or
non-technical data, formulae, patterns, compilations,
programs, devices, methods, techniques, processes, procedures,
improvements, manuals, financial data, lists of actual or
potential customers or suppliers of EMPLOYER, and any other
information regarding EMPLOYER's business that is not
generally known to the public through legitimate origins.
EMPLOYER and EMPLOYEE acknowledge and agree that such
Confidential Information is extremely valuable to EMPLOYER and
shall be deemed to be a "Trade Secret ". For the purposes of
this Section 12.1, such information is "not generally known to
the public through legitimate origins" if it is not generally
known to third parties who can obtain economic value from its
disclosure and use.
12.2 Non-Disclosure of Confidential Information. EMPLOYEE will not,
in any form or matter, directly or indirectly, divulge,
disclose or communicate to any person, entity, firm,
corporation or any other third party, or utilize for
EMPLOYEE's personal benefit or for the benefit of any
competitor of EMPLOYER, any Confidential Information, unless
such disclosure is compelled by judicial or administrative
process.
12.3 Delivery Upon Termination. EMPLOYEE will promptly deliver to
EMPLOYER all correspondence, manuals, letters, notes,
notebooks, reports, programs, plans, proposals, financial
documents, or any other documents or things concerning
EMPLOYER's customers, supplier network, marketing strategies,
products or processes and/or which contains Confidential
Information. Without limitation to the forgoing, EMPLOYEE
shall
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not be entitled to retain any Confidential Information in any
form, including electronic files, magnetic media or optical
media.
13. Because of the EXTREME CONFIDENTIALITY and SENSITIVITY of this
Agreement and its terms, EMPLOYEE further acknowledges and agrees that
his breach of any of the covenants and agreements contained in this
Agreement will result in IRREPARABLE INJURY to EMPLOYER for which there
may be no adequate remedy at law. In the event of the breach or
threatened breach of any of the restrictions, covenants or agreements
in this Agreement by EMPLOYEE, EMPLOYER shall be immediately entitled
to injunctive relief, both preliminary and final, enjoining and
restraining such breach or threatened breach. Such remedy shall be in
addition to all other remedies available at law or in equity. Such
injunction shall be available to EMPLOYER without the posting of any
bond or other security and EMPLOYEE hereby consents to the issuance of
such injunction.
14. EMPLOYEE further agrees that on the effective date he is relieved of
his responsibilities with EMPLOYER, he will have delivered to EMPLOYER
all customer or client lists, financial analyses, price information,
documents, strategic plans, manuals, letters, notes, notebooks,
reports, and any copies thereof, as well as any and all other
confidential or proprietary information and any and all other
materials, supplies, documents, information or equipment that he may
have in his possession or under his control belonging to EMPLOYER, as
defined in Section 12, above.
15. All parties further agree that any provision of this Agreement that may
at any time be prohibited or unenforceable by law shall be ineffective
only to the extent and for the duration of such prohibition or
unenforceability, and that any such prohibition of unenforceability
shall not invalidate the remaining provisions of this Agreement.
16. The Agreement shall be binding upon EMPLOYEE and EMPLOYEE's heirs,
administrators, representatives, executors, successors, and assigns,
and shall be binding on EMPLOYER and its successors and assigns.
17. EMPLOYER denies that it has taken any improper action against EMPLOYEE
in violation of any federal, state, or local law or common law
principle. Both parties further agree that this Agreement shall not be
admissible in any proceeding as evidence of any improper action by
EMPLOYER (except to enforce to the terms thereof).
18. EMPLOYEE agrees that he is entering into this Agreement voluntarily and
with full knowledge of its significance. EMPLOYEE further acknowledges
that this Agreement sets forth the entire agreement of parties and it
shall
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be final and binding as to all claims of causes of action which have
been or could have been advanced on behalf of EMPLOYEE against
EMPLOYER, and/or any other as set forth above, arising out of his
employment and/or his transfer to inactive employment status and/or his
termination and/or his voluntary resignation of employment with
EMPLOYER.
19. EMPLOYEE acknowledges and agrees that he has been advised (a) of his
right to consult with an attorney as to the significance and meaning of
this Agreement; (b) that he has twenty-one (21) days to consider this
Agreement and seven (7) days after he executes it to revoke; (c) that
if EMPLOYEE wishes to revoke this Agreement he must forward his timely
written revocation to ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, at Chicago Title and Trust
Company, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇; and (d) that
this Agreement is executed without reliance upon any other statement or
representation of the parties released.
20. The parties agree that his Agreement shall be interpreted and governed
by the laws of the State of Illinois.
THIS AGREEMENT sets forth the entire Agreement of the parties and shall be final
and binding as to all claims, allegations, charges, and causes of action which
have been or could have been advanced or raised on behalf on EMPLOYEE arising
out of his employment and/or his transfer to inactive employment status and/or
his termination and/or his retirement from employment with EMPLOYER.
AGREED TO BY: AGREED TO BY:
By: Chicago Title & Trust Company By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Chicago Title Corporation
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Name: S. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Senior Vice President Title: Executive Vice President
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Dated: 03/08/99 Dated: 03/08/99
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