EXHIBIT 10.71
SEPARATION AGREEMENT AND
MUTUAL GENERAL RELEASE OF ALL CLAIMS
This Separation Agreement and Mutual General Release of all Claims
("this Agreement") is entered into on this 8th day of February, 2000 by and
between Xxxxx X. Xxxxxx ("Executive") and Medallion Financial Corporation
("Medallion") and effective as of December 31, 1999 (the "Termination Date").
In Consideration of the promises set forth in this Agreement, Executive
and Medallion agree as follows:
1. Termination of Employment Agreement; Entire Agreement
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The Amended and Restated Employment Agreement between Executive and
Medallion, dated as of August 29,1998 (the "Employment Agreement"), is
hereby terminated and canceled in its entirety. Executive hereby releases
Medallion and Medallion hereby releases Executive from all of the terms and
provisions of the Employment Agreement. From the date hereof, this
Agreement shall constitute the entire agreement between Executive and
Medallion and contain all of the agreements, whether written, oral, express
or implied, between Executive and Medallion and supersedes any other
agreement, whether written, oral, express or implied, between Executive and
Medallion. Other than this Agreement, there are no other agreements of any
nature whatsoever between Executive and Medallion which survive this
Agreement. This Agreement cannot be modified or amended except in a writing
signed and agreed to by Executive and Medallion.
2. Term
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The term of this Agreement shall commence on the Termination Date and end
on August 31, 2001 (the "Term").
3. Termination
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As of the Termination Date, Executive hereby resigns any and all
appointments he holds with Medallion, and its subsidiaries and affiliates,
including without limitation those appointments he holds as an officer, and
agrees that his employment with Medallion is terminated as of the
Termination Date. Except as expressly set forth in this Agreement,
Executive and Medallion shall have no obligations to each other of any
nature whatsoever after the Termination Date. After the Termination Date,
Executive shall have no authority to act on behalf of Medallion except upon
the written request of Medallion.
4. Payments and Benefits
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In consideration for the promises, covenants and releases provided by
Executive pursuant to this Agreement, Medallion agrees to provide the
following payments and benefits to Executive during the Term or to his
estate in the event of his death.
(a) During the Term, Medallion shall make bi-monthly payments to Executive
equal to $11,458.34 commencing with an initial payment on January 15,
2000 and ending with a payment on August 31, 2001. All of these
payments shall be subject to all required federal, state and local
withholding taxes.
(b) During the Term, Medallion shall continue to make the premium payments
with respect to medical, dental and life insurance coverage currently
in effect with Summit Bancorp. Such coverage shall be subject to
Executive's contributions equal to Executive's employee contributions
in effect under such medical, dental and life insurance programs
existing immediately prior to the Termination Date. Executive's
termination of employment with Medallion on the Termination Date shall
constitute a "qualifying event" for purposes of part 6 of Title 1 of
ERISA ("COBRA") on such date. Executive acknowledges on behalf of
himself and his dependents that any period with respect to which any
of them otherwise would be eligible to elect continued group health
plan coverage under COBRA shall be reduced by the period of
post-termination group health plan coverage provided under this
paragraph 4(b).
(c) Medallion shall make a one-time payment on February 16, 2000 to
executive equal to $68,500, representing Executive's bonus for 1999.
(d) All employee stock options with respect to shares of Medallion common
stock currently held by Executive (the "Options"), to the extent not
yet vested, shall become immediately vested and exercisable, and all
Options shall remain exercisable until the earlier of (i) the date
that is 90 days from the date that Executive or Veral & Co., L.L.C.
ceases to provide any consulting services to Medallion or (ii) the
expiration of such employee stock options.
(e) During the Term, Medallion shall pay for or reimburse Executive for
the lease of the 2000 Mercedes Benz S430 or any replacement car which
lease cost is the same or less, that Executive currently uses and
shall pay for or reimburse Executive for all maintenance, gas, garage,
insurance and any other operating expenses with respect to such
automobile.
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(f) The payments and benefits in clauses (a) through (e) of this paragraph
4 are contingent upon Executive not revoking the waiver of rights
pursuant to the penultimate sentence of Section 8, below. Medallion
agrees that there are no current offsets or counter claims of any kind
or nature that they can make to these payments.
5. Proprietary Information; Non-Competition; Non-Solicitation
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(a) Executive agrees that all information and know-how, whether or not in
writing, of a private, secret or confidential nature concerning the
business or financial affairs of Medallion and its subsidiaries
(collectively for the purpose of this paragraph 5 "Medallion") and not
within Executive's possession or knowledge prior to his employment
with Medallion (collectively, the "Proprietary Information"), is and
shall be the exclusive property of Medallion. By way of illustration,
but not limitation, Proprietary Information shall include inventions,
products, processes, methods, techniques, projects, developments,
plans, research data, financial data, personnel data, and lists of
borrowers, advertisers, fleet and taxi owners. Executive agrees not to
disclose any Proprietary Information to any person or entity other
than as specifically authorized in writing by Medallion or use the
same for any unauthorized purpose, either during or after the Term,
unless and until such Proprietary Information has become public
knowledge without fault of Executive or unless required by a court of
law.
(b) Executive agrees that all files, letters, memoranda, reports, records,
data, sketches, drawings or other written, photographic, or other
tangible material containing Proprietary Information, whether created
by Executive or others, which came into his custody or possession,
shall be and are the exclusive property of Medallion.
(c) Executive agrees that his obligation not to disclose or use
Proprietary Information and records of the types set forth herein also
extends to such types of Proprietary Information, records and tangible
property of borrowers, advertisers, fleet taxi owners or other third
parties who may or may have disclosed or entrusted the same to
Medallion or to Executive in the course of his employment
(d) Executive agrees that for a period of one-year after the Termination
date, Executive shall not directly or indirectly (i) recruit, solicit,
hire or otherwise induce or attempt to induce any employees of
Medallion
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to leave their employment or (ii) call upon, solicit, divert or take
away, or attempt to divert or take away, the business or patronage of
any borrower or customer, of Medallion that had a business
relationship with Medallion at the Termination Date.
6. Return of Property
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All Medallion files, Proprietary Information, access keys, desk keys, ID
badges, credit cards, in Executive's possession must be returned no later
than February 8, 2000.
7. General Release and Waiver of Claims.
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Executive and Medallion hereby unconditionally and forever release,
discharge and waive any and all claims of any nature whatsoever, whether
legal, equitable or otherwise, which Executive or Medallion may have
against the other arising at any time on or before the Termination Date.
This mutual release of all claims extends to any and all claims of any
nature whatsoever, whether known, unknown or capable or incapable of being
known as of the Termination Date or thereafter. This Agreement is a release
of all claims of any nature whatsoever by Executive and Medallion against
the other and includes, without limitation, any and all claims, demands,
causes of action, liabilities whether known or unknown including those
caused by, arising from or related to Executive's employment relationship
with Medallion including, but without limitation, any and all alleged
discrimination or acts of discrimination which occurred or may have
occurred on or before the Termination Date based upon race, color, sex,
creed, national origin, age, disability or any other violation of any Equal
Employment Opportunity Law, ordinance, rule, regulation or order,
including, but not limited to, Title VII of the Civil Rights Act of 1964,
as amended; the Civil Rights Act of 1991; The Age Discrimination in
Employment Act of 1967, as amended (as further described in Section 7
below); the Fair Labor Standards Act, as amended, the Americans with
Disabilities Act; and any similar state statues or regulations.
The parties agree and understand and knowingly agree to this release
because it is their respective intent in executing this Agreement to
forever discharge each other from any and all present, future, foreseen or
unforeseen causes of action except for the settlement obligation described
herein. Notwithstanding this mutual release and waiver of claims between
the parties, Medallion agrees to indemnify Executive to the fullest extent
allowable by law and its corporate governance documents for any actions or
inactions by Executive in the normal course of his prior employment with
Medallion.
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8. Release and Waiver of Claims Under the Age Discrimination in Employment
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Act.
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Executive acknowledges that Medallion encouraged him to consult with an
attorney of his choosing, and through this Agreement encourages him to
consult with his attorney with respect to possible claims under the Age
Discrimination in Employment Act of 1967, as amended ("ADEA") and that
Executive acknowledges that he understands that the ADEA is a federal
statute that prohibits discrimination, on the basis of age, in employment,
benefits, and benefit plans. Executive wishes to waive any and all claims
under the ADEA that he may have, as of the Termination Date, against
Medallion, its shareholders, employees, or successors and hereby waives
such claims. Executive further understands that by signing this Agreement
he is in fact waiving, releasing and forever giving up any claim under the
ADEA that may have existed on or prior to the Termination Date. Executive
acknowledges that Medallion has informed him that he has at his option,
twenty-one (21) days in which to sign the waiver of this claim under ADEA,
and he does hereby knowingly and voluntarily waive said twenty-one (21) day
period. Executive also understands that he has seven (7) days following the
date of the execution of this Agreement within which to revoke the release
contained in this paragraph by providing a written notice of his revocation
of the release and waiver contained in this paragraph to Medallion.
Executive further understands that this right to revoke the release
contained in this paragraph relates only to this paragraph and does not act
as a revocation of any other term of this Agreement.
9. Continued Applicability of Certain Plans.
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Notwithstanding anything contained herein to the contrary, this Agreement
shall not supersede any retirement plan maintained by Medallion for the
benefit of Executive. Except as previously provided in paragraph 4(d)
herein, this Agreement shall not supersede the Medallion 1996 Stock Option
Plan or the option agreements entered into pursuant thereto. All
consideration to which employee is entitled under the above-mentioned plans
shall be provided to Employee pursuant to the terms of the plan documents
and related stock option agreements.
10. Indemnification.
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Notwithstanding anything contained herein to the contrary, including the
general release and waiver of claims by Executive, by signing this
Agreement Executive will not be deemed to have relinquished his right to
indemnification for acts occurring or liabilities arising on or prior to
the Termination Date, including any right for reimbursement of
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expenses, from Medallion under any charter provision, insurance arrangement
or under applicable law with respect to any claim asserted against
Executive in his capacity as an officer, director, or employee of Medallion
or its predecessor companies, which right shall be no greater nor less than
the indemnification right of other officers, directors and employees of
Medallion.
11. Severability Clause.
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In the event any provision or part of this Agreement is found to be invalid
or unenforceable, only that particular provision or part so found, and not
the entire agreement, will be inoperative. If any of the restrictions
contained herein are deemed to be unenforceable by reason of the extent,
duration or scope thereof, or otherwise, then the court or other tribunal
making the determination shall reduce the extent, duration, geographical
scope or other provisions hereof to the broadest provision deemed by the
court to be enforceable, and in its reduced form this Agreement will then
be enforceable in the manner contemplated hereby.
12. Non-Admission; Non-Disparagement.
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Nothing contained in this Agreement will be deemed or construed as an
admission of wrongdoing or liability on Executive's part or on the part of
Medallion. Except to the extent required by law, Executive and Medallion
agree not to make any disparaging comments about each other to any third
party.
13. Governing Law.
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This Agreement shall be governed, construed, interpreted and enforced in
accordance with the substantive laws of the State of New York without
regard to principles of conflicts of laws. The parties hereto agree to the
jurisdiction of the courts of the State of New York located in the City of
New York.
14. Arbitration.
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Any claims, controversies, demands, disputes or differences between or
among the parties hereto or any persons bound hereby arising out of, or by
virtue of, or in connection with, or otherwise relating to this Agreement
shall be submitted to and settled by arbitration conducted in New York, New
York before one or three arbitrators each of whom shall be knowledgeable in
employment law. Such arbitration shall otherwise be conducted in accordance
with the rules then obtaining to such disputes of the American Arbitration
Association. The parties hereto agree to share equally the responsibility
for all fees of the arbitrators, abide by any
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decision rendered as final and binding, and waive the right to appeal the
decision or otherwise submit the dispute to a court of law for a jury or
non-jury trial. The parties hereto specifically agree that neither party
may appeal or subject the award or decision of any such arbitrator(s) to
appeal or review in any court of law or in equity or by any other tribunal,
arbitration system or otherwise. Judgment upon any award granted by such
arbitrator(s) may be enforced in any court having jurisdiction thereof. If
the arbitration decision holds that one party is entirely at fault and the
other party is without fault, the party that is without fault shall be
entitled to reimbursement of fees and expenses from the losing party that
is at fault in an amount not to exceed $50,000.
15. Survivorship.
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The respective rights and obligations of the parties hereunder shall
survive any termination of this Agreement to the extent necessary to the
intended preservation of such rights and obligations. Specifically,
paragraphs 5 (relating to non-disclosure of Proprietary Information and
non-solicitation), 7 (relating to the general release and waiver of
claims), 8 (relating to the release and waiver of claims under ADEA), 10
(relating to indemnification), 12 (relating to non-disparagement) and 14
(relating to arbitration) shall survive the termination hereof.
THE PARTIES ACKNOWLEDGE THAT THEY HAVE READ THIS AGREEMENT AND THAT THEY FULLY
KNOW, UNDERSTAND, AND APPRECIATE ITS CONTENTS, AND THAT THEY EXECUTE THE SAME
AND MAKE THIS AGREEMENT AND THE RELEASE AND AGREEMENTS PROVIDED FOR HEREIN
VOLUNTARILY AND OF THEIR OWN FREE WILL.
IN WITNESS WHEREOF, the parties have executed this AGREEMENT on the 8th
of February, 2000.
MEDALLION CORPORATION
By: /s/ Xxxxx Xxxxxxxx /s/ Xxxxx X. Xxxxxx
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Xxxxx Xxxxxxxx Xxxxx X. Xxxxxx
Chairman and Chief,
Executive Officer
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