Exhibit 10.30
TERMINATION AGREEMENT
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THIS AGREEMENT, dated as of February 1, 2002, between USI Insurance
Services Corp., a Delaware corporation (the "Company") and wholly owned
subsidiary of U.S.I. Holdings Corporation, a Delaware corporation ("Holdings"),
Holdings, (the Company and Holdings, collectively the "Companies"), and Xxxxx
Xxxxxxxx ("Xxxxxxxx"), an Illinois resident.
W I T N E S S E T H:
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WHEREAS, Xxxxxxxx has been employed by the Company and is a
shareholder of Holdings; and
WHEREAS, Holdings and the Company, on the one hand, and Xxxxxxxx, on
the other hand, mutually wish to terminate their employment relationship, and
the parties hereto wish to agree as to certain matters in connection with such
termination and to restate and redefine their obligations to each other; and
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements set forth herein, the parties agree as follows:
1. Termination. Xxxxxxxx'x employment relationship with the Company
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and service as Senior Vice President and Chief Information Officer of the
Company and Holdings shall terminate, without cause, by mutual agreement
effective as of the close of business on February l, 2002 and, by this
Agreement, the Employment Agreement effective as of August 30, 2000 (the
"Employment Agreement"), between the Company and Xxxxxxxx shall terminate
effective as of such time (except as provided in Section 3 of this Agreement).
Xxxxxxxx also hereby resigns from the positions of officer of each direct and
indirect subsidiary of Holdings in which capacity he has heretofore served. As
consideration for such termination and resignations, the Company and Holdings
agree, to the following:
(a)(i) The Company shall pay Xxxxxxxx an amount equal to $110,000
(less applicable tax withholdings) payable on or before March 31, 2002.
(ii) The Company shall also reimburse Xxxxxxxx for business expenses
actually incurred by him in the ordinary course of business prior to
February 1, 2002. Such reimbursement shall be made to Xxxxxxxx promptly
following his delivery to the Company of customary documentation of the
incurrence of such expenses.
(b) The Company shall pay Xxxxxxxx at an annual rate of $275,000 per
year for the 12-month period commencing February l, 2002 and ending January
31, 2003 (the "Payment Period"). Such payments shall be made on a
semimonthly basis in accor-
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dance with the Company's regular payment cycle in as equal amounts as
practicable. Payments made shall be subject to applicable tax withholding.
(c) During the Payment Period, the Companies shall pay Xxxxxxxx'x
healthcare insurance premiums, up to the same amount of premium that the
Company is paying on behalf of Xxxxxxxx under the employee healthcare
benefit plan in which he participates on January 31, 2002 for the 12-month
period commencing February 1, 2002 and ending January 31, 2003.
(d) The Companies shall provide Xxxxxxxx with Executive Outplacement
assistance through Drake, Beam, Morin, at a level deemed appropriate by
USI, for a period of three months from the date of termination.
(e) The Company agrees that Xxxxxxxx may retain his Compaq laptop
computer EVO N600C and Palm VII, and Company transfers all ownership rights
in such items to Xxxxxxxx.
(f) Xxxxxxxx shall assist Holdings in the transition of his functions
and responsibilities to his successors as reasonably requested by the
Companies.
(g) Xxxxxxxx shall cooperate with Holdings with respect to (i) any
lawsuit, arbitration or other proceeding between the Companies or their
subsidiaries and any third party, and shall make himself available at
reasonable times during normal business hours to provide information,
including, without limitation, testimony, in any such proceedings. If, in
connection with Xxxxxxxx'x performance of his obligations pursuant to this
Section 1(g), Xxxxxxxx reasonably determines that it is necessary for him
to be represented by separate counsel, Xxxxxxxx shall select (subject to
Holdings' approval, which approval shall not be unreasonably withheld),
such counsel at Holdings' sole cost and expense, provided that the fees and
other charges of such counsel are reasonable and customary. In addition,
Holdings agrees to reimburse Xxxxxxxx for all other reasonable expenses
incurred by Xxxxxxxx in connection with the performance of his obligations
pursuant to this Section 1(g).
2. Vesting of SARs. The provisions in the Share Appreciation Right
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Award Agreement granted September 1, 2000 between Xxxxxxxx and Holdings shall
continue in full force and effect, except that (i) 25,000 of the SARs shall vest
100% in Xxxxxxxx as of February 1, 2002 (ii) 25,000 of the SARs shall be
cancelled as of February 1, 2002, and (iii) for purposes of determining the
Exercise Date, under Section 6(b) of the SAR agreement the effective date of
termination shall be deemed to be the date that other SAR holders with grants
containing the same language of said Section 6(b) have a Qualification Event.
Capitalized terms used in this Section 2, not otherwise defined herein, are used
as defined in the SAR Agreements.
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3. Restrictive Covenants. Xxxxxxxx acknowledges that the provisions of
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Sections 6 and 7 of the Employment Agreement shall remain in full force and
effect in accordance with their terms, except for Section 7.2 which the Holdings
agrees to waive enforcement of regarding Xxxxxxxx'x future employment.
4. Delivery of Companies' Property. Xxxxxxxx shall, prior to the
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execution of this Agreement, provide to Holdings all property of the Companies
and their subsidiaries, including any computerized data and computer software
owned or licensed by the Companies or their subsidiaries, as well as all
documents of the Companies or their subsidiaries, including all copies thereof,
in his possession. The Companies shall contemporaneous with the execution of
this Agreement provide to Xxxxxxxx all of the property of Xxxxxxxx in its
possession.
5. No Awareness of Claim and Releases. (a) Xxxxxxxx represents and
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warrants to the Companies that as of the date hereof and giving effect to the
transactions contemplated by this Agreement, Xxxxxxxx is not aware of any
claims, demands or causes of action which Xxxxxxxx has against the Companies.
Xxxxxxxx hereby agrees to indemnify the Companies for any breach of this
representation and warranty.
(a) The Companies each represent and warrant to Xxxxxxxx that as of
the date hereof and giving effect to the transactions contemplated by this
Agreement, the Companies are not aware of any claims, demands or causes of
action which the Companies have against Xxxxxxxx. The Companies hereby agree to
indemnify Xxxxxxxx for any breach of this representation and warranty.
(b) Simultaneously with the execution of this Agreement, the Companies
and Xxxxxxxx will exchange executed Releases in the forms attached hereto as
Exhibits A and B, respectively.
(c) Each of the parties agrees and covenants that it will not file or
cause to be filed any lawsuit, arbitration or other proceeding asserting any
claim released by the release executed by it. In the event a party files any
such lawsuit, arbitration or other proceeding, the party so filing will
indemnify the other party for all costs incurred in defending against such
proceeding, including attorneys fees.
(d) Holdings shall indemnify and hold harmless Xxxxxxxx if he is made,
or threatened to be made a party to any action, proceeding or investigation,
whether civil, criminal, or administrative, and whether involving an actual or
alleged breach of duty, neglect or error by Xxxxxxxx, or any other actual or
alleged act or omission of Xxxxxxxx, by reason of or arising from the fact that
Xxxxxxxx was an officer or employee of Holdings or any of its direct or indirect
subsidiaries. Xxxxxxxx shall give prompt notice to Holdings of any such action,
proceeding or investigation. Such indemnification and hold harmless includes a
duty to provide Xxxxxxxx with competent counsel at the sole expense of Holdings
(or if Xxxxxxxx reasonably
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determines that it is necessary for him to be represented by separate counsel,
Xxxxxxxx shall select (subject to Holdings' approval, which approval shall not
be unreasonably withheld), such counsel at Holdings' sole cost and expense,
provided that the fees and other charges of such counsel are reasonable and
customary) and to pay in full all judgments, fines, amounts paid in settlement,
costs, charges and expenses, including attorneys fees and including appeals
therefrom; provided, however, that no indemnification shall be provided to
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Xxxxxxxx if a judgment or other final adjudication adverse to Xxxxxxxx
establishes that (i) his acts or omissions were committed in bad faith or were
the result of active and deliberate dishonesty and profit or other advantage to
which he was not legally entitled. If Holdings fails to provide competent
counsel for Xxxxxxxx, Xxxxxxxx shall be entitled to retain counsel of his own
choosing at Holding's expense. Xxxxxxxx shall be entitled to the costs of any
proceeding to enforce this provision, including reasonably attorneys' fees and
expenses.
6. Notice. All communications given under this Agreement shall be in
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writing (including by telecopy) and shall be deemed to have been duly given when
delivered by hand or Federal Express or similar overnight courier to, or mailed
by prepaid registered or certified mail, or, in the case of telecopy notice,
when received, addressed to, the party for whom intended:
U.S.I. Holdings Corporation,
and/or USI Insurance Services Corp.
00 Xxxxxxxxxx Xxxxxx, 00xx Xxx.
Attention: General Counsel
Telecopy: 000-000-0000
Telephone: 000-000-0000
Xx. Xxxxx X. Xxxxxxxx
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
7. Non-disparagement. Subject to obligations under applicable laws and
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regulations, neither Xxxxxxxx nor either of the Companies or their senior
officers, shall publicly make any statements or comments that disparage the
reputation of Xxxxxxxx, or either of the Companies.
8. Communications by Xxxxxxxx. Xxxxxxxx agrees that he will not at any
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time discuss any matter (including claims or potential claims against the
Companies) concerning the Companies, their officers or directors, or any of
their subsidiaries, with any employee or former employee of the Companies or any
of their subsidiaries, or anyone known by Xxxxxxxx to be adverse or potentially
adverse to the Companies without the prior consent of the Companies, unless such
communication is in furtherance of Xxxxxxxx'x performance of his obligations un-
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der Section 1 (f) and (g). The restriction on communications by Xxxxxxxx
referenced in this Section 9 shall be in place so long as the Company is
continuing to make severance payments under Section 1 (b); provided, however,
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that the restriction will continue beyond the severance period with respect to
communication with anyone who is a party to an adversarial proceeding against
the Companies that existed at the end of the severance period. Nothing contained
herein, however, shall preclude Xxxxxxxx from discussing any matter concerning
the Companies, their officers of directors, or any of their subsidiaries with
any governmental regulatory or self-regulatory agency. If compelled to testify
by a validly served subpoena in any legal proceeding or by regulatory authority,
Xxxxxxxx with testify truthfully as to all matters concerning his employment at
the Companies. Xxxxxxxx agrees to disclose to Holdings as soon as reasonably
practicable all request for information, and his anticipated responses thereto.
10. Entire Agreement. This Agreement sets forth the entire
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understanding of the parties with respect to its subject matter, merges and
supersedes all prior and contemporaneous understandings with respect to its
subject matter and may not be waived or modified, in whole or in part, except by
a writing signed by each of the parties. No waiver of any provision of this
Agreement in any instance shall be deemed to be a waiver of the same or any
other provision in any other instance. Failure of any party to enforce any
provision of this Agreement shall not be construed as a waiver of its rights
under such provision.
11. Full Settlement; Legal Fees. The Companies' obligation to make the
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payments provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Companies may have against
Xxxxxxxx or others. In any action or proceeding brought to enforce any provision
of this Agreement, and where any provision hereof or thereof is validly asserted
as a defense, the successful party shall be entitled to recover reasonable
attorney's fees in addition to any other available remedy.
12. Successors and Assigns. This Agreement shall be binding on,
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enforceable against and inure to the benefit of, the parties and their
respective heirs, personal representatives, successors and assigns, and nothing
herein is intended to confer any right, remedy or benefit on any other person;
provided, however, that Xxxxxxxx'x rights hereunder are personal to him and
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shall not be voluntarily or involuntarily assigned or transferred except by will
or operation of law and any attempt to do so shall be void.
13. Governing Law. This Agreement shall in all respects be governed by
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and construed in accordance with the laws of the State of Illinois applicable to
agreements made and fully to be performed in such state, without giving effect
to conflicts of law principles.
14. Construction. Headings contained in this Agreement are for
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convenience only and shall not be used in the interpretation of this Agreement.
References to Sections are to the sections of this Agreement.
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15. Severability. If any provision of this Agreement is held to be
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invalid or unenforceable by a court of competent jurisdiction, this Agreement
shall be interpreted and enforceable as if such provision were severed or
limited, but only to the extent necessary to render such provision and this
Agreement enforceable. This Agreement has been jointly drafted by the parties,
neither of whom shall be deemed to be its drafter for purpose of any rule of law
which construes a document against the person who drafted it.
16. Arbitration. All controversies which may arise between the parties
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hereto including, but not limited to, those arising out of or relating to this
Agreement shall be determined by binding arbitration applying the laws of the
State of Illinois as set forth in Section 13 above. Any arbitration pursuant to
this Agreement shall be conducted in Chicago, IL in accordance with the
Commercial Arbitration Rules of the American Arbitration Association as they may
be in effect from time to time. The arbitration shall be final and binding upon
all the parties and the arbitrator's award shall not be required to include
factual findings or legal reasoning. Nothing in this Section 16 will prevent
either party from resorting to judicial proceedings if interim injunctive relief
under the laws of the State of Illinois from a court is necessary to prevent
serious and irreparable injury to one of the parties pending arbitration of the
controversy in question, even if the dispute underlying such request for
injunctive relief is arbitrable under the terms of this Agreement. Each of the
parties hereto agrees to submit to the jurisdiction and venue of the courts of
the State of Illinois, including the federal courts in the State of Illinois, in
any action or proceeding arising out of or related to this Agreement, and hereby
agrees to accept service of any and all writs, processes of summons in
connection with any such action or proceeding. Each party waives any right it
may have to transfer or change the venue of any arbitration or litigation
brought in accordance herewith.
17. Voluntary Execution and Representation by Counsel. Xxxxxxxx
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acknowledges that he has carefully read this Agreement and understands all of
its terms including the full and final release of claims set forth above.
Xxxxxxxx further acknowledges that he has voluntarily entered into this
Agreement; that he has not relied upon any representation or statements, written
or oral, not set forth in this Agreement; that the only consideration for
signing this Agreement is as set forth herein; and that he has had this
Agreement reviewed by his attorneys and has received advice from those attorneys
with which he is satisfied.
18. Effective date. (a) Although this Agreement is dated as of
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February 1, 2002 and has been executed on that day, the parties acknowledge that
Xxxxxxxx shall have a period of twenty-one (21) days from February 1, 2002 in
which he may consider and revoke this Agreement. Accordingly, the parties
acknowledge that this Agreement shall not become effective unless and until,
after the expiration of twenty-one (21) days after February 1, 2002 Xxxxxxxx has
not revoked the Agreement. Xxxxxxxx acknowledges that this provisions provides
him with more than seven (7) days in which to revoke the Agreement after its
execution.
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(b) In the event Xxxxxxxx revokes this Agreement pursuant to Section
18(a) or asserts the release executed by him as contemplated by this Agreement
is invalid on the grounds that his entry into this Agreement was not knowing or
voluntary within the meaning of the older Workers Benefit Protection Act of
1990, Xxxxxxxx and Holdings agree that this Agreement is void and of no effect.
19. Counterparts. This Agreement may be executed by the parties in
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counterpart, all of which shall be deemed to constitute one and the same
instrument.
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IN WITNESS WHEREOF, each of the parties has executed this Agreement as
of the date first set forth above.
U.S.I. HOLDINGS CORPORATION
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Chairman & CEO
USI INSURANCE SERVICES CORP.
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Chairman & CEO
/s/ XXXXX X. XXXXXXXX
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XXXXX X. XXXXXXXX
STATE OF California, COUNTY OF San Francisco ss.:
On February 1, 2002, before me personally came Xxxxx Xxxxxx to me
known, who, by me duly sworn, did depose and say that deponent is the Chairman
and Chief Executive Officer of U.S.I. Holdings Corporation and USI Insurance
Services Corp., the corporations described in, and which executed the foregoing
Agreement, and that deponent signed deponent's name by order of the boards of
directors of the corporations.
[GRAPHIC] /s/ Xxxxx X. Xxxxx-Xxxxxx
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Notary Public
Dated: February 2, 2002
STATE OF ILLINOIS COUNTY OF Will ss.:
On January 30, 2002, before me personally came Xxxxx X. Xxxxxxxx to me
known, and known to me to be the individual described in, and who executed the
foregoing Agreement, and duly acknowledged to me that he executed the same.
/s/ Illegible
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Notary Public
Dated: February 2, 2002
[GRAPHIC]
EXHIBIT A
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RELEASE
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U.S.I. Holdings Corporation, a corporation organized under the laws of
Delaware, and USI Insurance Services Corp., a corporation organized under the
laws of Delaware, (collectively, "RELEASOR"), for good and valuable
consideration, the receipt of which is hereby acknowledged, releases and
discharges Xxxxx X. Xxxxxxxx and his attorneys, heirs, executors,
administrators, successors and assigns (all, collectively, "RELEASEE"), from all
actions, causes of action, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments, extents,
executions, claims and demands whatsoever, in law, admiralty or equity, which
against the RELEASES, the RELEASOR, and the RELEASOR'S successors and assigns
ever had, now have or hereafter can, shall or may have, for, upon, or by reason
of any matter, cause or thing whatsoever from the beginning of the world to the
day of the date of this release; provided, however, that excepted from this
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Release are all claims relating to or arising from the Termination Agreement
dated as of February 1, 2002 (the "Termination Agreement") executed herewith.
The RELEASE contained herein is a full and final release applying to
all obligations, liabilities, actions, and losses, including but not limited to
damages, costs, expenses, and attorneys' fees, that may be incurred by RELEASOR
and arising out of or in any way connected with the employment relationship
between the parties, or the termination thereof. It is the intention of the
RELEASOR in executing this Agreement that the same shall be effective as a bar
to each and every claim, demand, and cause of action by the RELEASOR hereto
based on the parties' employment relationship and separation.
RELEASOR fully understands that if the facts with respect to this
Agreement are hereafter found to be other than or different from the facts now
believed to be true, from whatever cause or for whatever reason, RELEASOR
expressly accepts and assumes the risk of such possible difference in fact and
agrees that this Agreement shall be and remain unaffected, notwithstanding any
such differences.
The words "RELEASOR" and "RELEASEE" include all releasors and all
releasees under this RELEASE.
This RELEASE may not be changed orally.
IN WITNESS HEREOF, the RELEASOR has caused this RELEASE to be executed
by its duly authorized officer on the 1st day of February 2002.
U.S.I. HOLDINGS CORPORATION
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Chairman & CEO
USI INSURANCE SERVICES CORP.
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Chairman & CEO
STATE OF California, COUNTY OF San Francisco ss.:
On February 1, 2002, before me personally came Xxxxx Xxxxxx, to me
known, who, by me duly sworn, did depose and say that deponent is the Chairman
and Chief Executive of U.S.I. Holdings Corporation and USI Insurance Services
Corp., the corporations described in, and which executed the foregoing RELEASE,
and that deponent signed deponent's name by order of the boards of directors of
the corporations.
[GRAPHIC] /s/ Xxxxx X. Xxxxx-Xxxxxx
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Notary Public
EXHIBIT B
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RELEASE
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Xxxxx X. Xxxxxxxx ("Xxxxxxxx"), as RELEASOR, for good and valuable
consideration, the receipt of which is hereby acknowledged, releases and
discharges U.S.I. Holdings Corporation, its officers and directors, parents,
divisions, subsidiaries, affiliates, insurers, attorneys, and each of their
successors and assignees (all, collectively, "RELEASEE"), from all actions,
causes of action, suits, debts, dues, sums of money, accounts, reckonings,
bonds, bills, specialties, covenants, contracts, controversies, agreements,
promises, variances, trespasses, damages, judgments, extents, executions, claims
and demands whatsoever, in law, admiralty or equity, which against the RELEASEE,
the RELEASOR, and RELEASOR'S heirs, executors, administrators, successors and
assigns ever had, now has or hereafter can, shall or may have, for, upon, or by
reason of any matter, cause or thing whatsoever from the beginning of the world
to the day of the date of this release; provided, however, that excepted from
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this Release are all claims relating to or arising from the Termination
Agreement dated as of February 1, 2002 (the "Termination Agreement") executed
herewith.
Without in any way limiting the foregoing, RELEASOR specifically
releases and discharges RELEASEE from any claims arising out of or related to
RELEASOR's employment or separation from employment, including, but not limited
to, any claims for salary, bonuses, severance pay, vacation pay, or any benefits
under the Employee Retirement Income Security Act, sexual harassment, or
discrimination based on race, color, national origin, ancestry, religion,
marital status, sex, sexual orientation, citizenship status, pregnancy, leave of
absence, medical condition or disability (as defined by the Americans with
Disabilities Act, or any other state or local law), or any other unlawful
discrimination, breach of implied or express contract, breach of promise,
misrepresentation, negligence, fraud, estoppel, defamation, infliction of
emotional distress, loss of consortium, violation of public policy or wrongful
or constructive discharge, and for attorneys' fees; provided, however, that
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excepted from this Release are all claims relating to or arising from the
Termination Agreement.
RELEASOR agrees that this Release includes a full and final release by
RELEASOR of all unknown claims or damages, as well as a release by RELEASOR of
any and all claims now known or disclosed that arise as a result of any act or
omission occurring before RELEASOR signs this Release.
IN WITNESS HEREOF, the RELEASOR has hereunto set RELEASOR'S hand on
the 1st day of February 2002.
/s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
State of ILLINOIS County of Will ss.:
On January 30, 2002, before me personally came Xxxxx X. Xxxxxxxx, to
me known, and known to me to be the individual described in, and who executed
the foregoing RELEASE, and duly acknowledged to me that he executed the same.
/s/ Illegible
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Notary Public
[GRAPHIC]
