EXHIBIT 10.1
RETIREMENT AGREEMENT
THIS RETIREMENT AGREEMENT ("Agreement") is made as of the last date set
forth opposite any signature hereto by and between Gary D. Guengerich
("Employee") and American Medical Security Group, Inc., its affiliates and
subsidiaries (collectively, the "Company").
BACKGROUND
Employee has been employed by the Company's affiliate, American Medical
Security, Inc., to provide services as Executive Vice President and Chief
Financial Officer. Employee has decided to retire from employment with the
Company and the Company has agreed to accept such retirement effective at the
close of business December 31, 2002 (the "Retirement Date"). Employee and the
Company desire to resolve all aspects of the employment relationship between
them, provide for certain severance arrangements, and reduce their agreement to
writing.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants hereinafter set forth, the sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. UNCONDITIONAL PAYMENTS BY THE COMPANY. The Company agrees
unconditionally to pay Employee his base pay and related benefits in accordance
with the Company's practice, through and including the Retirement Date ("Salary
Payments").
2. CONDITIONAL BENEFITS TO EMPLOYEE. Subject to and conditional upon
Employee executing this Agreement within the timeframe specified hereunder and
upon Employee not exercising his revocation rights hereunder, and subject to
fulfillment of Employee's obligations under Paragraph 5 hereof, the Company
agrees to pay Employee a bonus equal to Employee's "Target Bonus" under the
Company's Executive Management Incentive Program for the 2002 compensation year
("Bonus Payment"). The Bonus Payment shall be paid not later than the date on
which the Company pays 2002 bonuses to its executive officers. The Salary
Payments and the Bonus Payment shall be referred to collectively herein as the
"Benefits".
3. PAYMENTS UNDER THIS AGREEMENT. The Company shall withhold from the
Benefits all applicable federal and state or local withholding, payroll or other
taxes or charges which the company may from time to time be required to deduct
under any applicable law. The Company shall have the right to rely upon an
opinion of its regular accountants or other tax advisors if any questions should
arise as to any such deduction(s).
4. WAIVER AND RELEASE OF ALL CLAIMS.
A. EMPLOYEE'S RELEASE. In exchange for the Benefits and payments to
Employee described in this Agreement (which he acknowledges to be greater,
in their totality, than any benefits due him absent this Agreement),
Employee hereby waives and
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irrevocably and unconditionally releases, and fully and forever discharges
the Company and all of its past and current officers, directors, agents and
employees (acting in their capacity as such), and their respective
successors and assigns (the "Released Parties") from and against any and
all claims, liabilities, obligations, covenants, rights, demands and
damages of any nature whatsoever, whether known or unknown, anticipated or
unanticipated, relating to or arising out of any agreement, act, omission,
occurrence, transaction or matter up to and including the date of this
Agreement including, without limitation, any and all claims relating to or
arising out of his employment by the Company or the termination thereof.
This Release of Claims includes, but is not limited to, any claims or
remedies arising under or affected by the Age Discrimination in Employment
Act of 1967, as amended, Title VII of the Civil Rights Act of 1964, as
amended, the Civil Rights Act of 1991, the Equal Pay Act, as amended, the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), the
Americans With Disabilities Act, the Fair Labor Standards Act, as amended,
the Family and Medical Leave Act of 1993, the Wisconsin Fair Employment
Act, as amended, the Wisconsin Family and Medical Leave Act, or any other
local, state or federal laws, whether codified or not, or any claim arising
in contract or in tort. This Release of Claims also includes any claims
Employee may have had under the American Medical Security Group, Inc.
Change of Control Severance Benefit Plan, as amended. Employee further
agrees to waive any benefit which may be conferred in any administrative or
judicial proceeding involving claims released hereunder.
B. SCOPE OF WAIVER AND RELEASE. Nothing in the waivers and releases
set forth in this Agreement shall be construed to apply to any rights or
claims against the Company arising under this Agreement or after the date
of this Agreement. This Waiver and Release will not apply to any accrued,
vested benefits that Employee may have as of the Date of Separation in any
benefit plan maintained by the Company. This Waiver and Release will not
apply to any rights of indemnification that the Employee may have as a past
or present director, officer, or employee of the Company or any of its
subsidiaries under the Delaware General Corporation Law, Wisconsin Business
Corporation Law and/or under Article VII of the Company's Bylaws or similar
provisions of the bylaws of any of the Company's subsidiaries.
5. EMPLOYEE'S OBLIGATIONS. In exchange for the benefits and payments to
him described in this Agreement, Employee covenants and agrees as follows:
A. RETURN OF DOCUMENTS AND EQUIPMENT. Prior to ceasing active
employment at the Company's principal offices, Employee will return to the
Company, and upon request certify in writing to the Company, that Employee
has returned to the Company, all of the Company's papers, documents and
things, including information stored for use in or with the computers and
software applicable to the Company's business (and all copies thereof),
which are in Employee's possession or under Employee's control, regardless
of whether such papers, documents or things contain confidential
information or trade secrets. In addition, Employee will return to the
Company any physical equipment of the Company in the Employee's possession,
including but phone,
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automobile and any other company-owned equipment in the possession of
Employee, wherever located.
B. CONFIDENTIAL INFORMATION. Employee acknowledges that during his
employment with the Company he has received certain confidential
information of the Company and/or its affiliated entities. As such,
Employee has a continuing obligation and will not use, publish, disclose or
authorize anyone else to use, publish or disclose, without the prior
written consent of the Company, any confidential information pertaining to
the Company or its affiliated entities, including, without limitation, any
information relating to existing or potential business, customers, agents,
trade or industrial practices, plans, costs, processes, or trade secrets.
Employee agrees that the terms of this Agreement and the discussions
leading to its execution are confidential and he will not disclose any
information concerning them or concerning his termination of employment to
anyone at any time, except to his spouse, if applicable, and his attorneys
and tax advisors, any and all of whom shall be informed of these
requirements and shall be bound by them, unless compelled to do so under
subpoena or other judicial process.
C. OTHER EMPLOYMENT. Employee agrees that he will not take, announce
an intent to take, or allow any other person to announce his intent to take
other employment prior to January 15, 2003.
D. EXERCISE OF OPTIONS. Employee currently owns vested options to
purchase shares of the Company's stock and will have additional options
vest prior to the Retirement Date (Employee's Stock Options"). Employee
agrees to use his best efforts to avoid exercising Employee's Stock Options
in any manner that is reasonably likely to have a materially adverse
effect on the intermediate or long term trading price of the Company's
stock.
E. FUTURE STATEMENTS. Employee warrants and agrees that he will
refrain from making any disparaging, damaging or false statements
concerning the Company, its affiliates, their management, directors,
agents or employees, or their methods of doing business, their quality of
services, their role in the community or their treatment of employees or
medical professionals. This warranty will apply to any successor agent or
assignee of the Company. Employee warrants and agrees that he will take
no action or make any statements which will impugn or damage the business
reputation or goodwill of the Company. Company warrants and agrees that
it will not, and will use commercially reasonable efforts to ensure that
its employees will not, make any disparaging, damaging or false statements
concerning Employee or take any action or make any statements which would
impugn or damage the business reputation of the Employee.
6. EXECUTION AND REVOCATION RIGHTS.
A. Employee has the right to sign this Agreement any time within
twenty-one (21) calendar days following receipt of this document.
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B. Following his signing of the Agreement, Employee has the right to
revoke the Agreement at any time within seven (7) calendar days of his
signing it, not including the date of his signing (the "Revocation
Period"). A notice of revocation shall be given in writing and hand-
delivered or mailed to:
American Medical Security, Inc.
Attn: Vice President, Human Resources
P.O. Box 19032
Green Bay, WI 54307-9032
A notice of revocation shall be deemed effective when delivered. This
Agreement shall not become effective or enforceable until the Revocation
Period has expired. If Employee gives notice of revocation during the
Revocation Period, this Agreement shall become null and void, and all
rights and claims of the parties which would have existed, but for the
execution of this Agreement, shall be restored.
7. REPRESENTATIONS OF EMPLOYEE. Employee represents and warrants to the
Company that:
A. BY SIGNING THIS AGREEMENT, EMPLOYEE UNDERSTANDS THAT HE HEREBY
WAIVES AND RELEASES ANY AND ALL RIGHTS AND CLAIMS ARISING UNDER THE AGE
DISCRIMINATION IN EMPLOYMENT ACT OF 1967, AS AMENDED, ITS STATE LAW
EQUIVALENT AND ALL OTHER CLAIMS AGAINST THE COMPANY AND THE RELEASED
PARTIES ARISING UP AND TO AND INCLUDING THE DATE HE SIGNS THIS AGREEMENT;
B. Employee has executed this Agreement on the date set forth
opposite his name on the signature page hereof; and
C. This Agreement has been carefully read by Employee, and its
contents are known and understood by Employee, and is signed freely and
voluntarily by Employee, who intends to be bound by it.
8. TAX-QUALIFIED RETIREMENT PLAN. Employee acknowledges that his
retirement does not constitute a retirement under any tax-qualified retirement
plan of the Company.
9. NON-ADMISSION. Neither the negotiations concerning this Agreement, nor
the actual provision of consideration set forth in this document, nor the
Company's drafting or execution of this document nor Employee's review and
execution of this document shall be construed as an acknowledgment or admission
by the Company of any liability to Employee or any other individual or entity or
of any wrongdoing under federal, state or local law.
10. ENTIRE AGREEMENT. This Agreement constitutes the complete
understanding between the parties concerning all matters affecting Employee's
employment with the Company and the termination thereof and supersedes all prior
agreements, understandings and practices
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concerning such matters, including, without limitation, any prior employment
agreement or engagement letter Employee may have had with the Company and the
provisions of any other Company personnel documents, handbooks or policies, or
any prior customs or practices of the Company with respect to bonuses, severance
pay, fringe benefits or otherwise.
11. NO PREVAILING PARTY DESIGNATION. The parties agree that this Agreement
shall not be construed to render Employee a "prevailing party" within the
meaning of the Civil Rights Act of 1964, as amended, the Age Discrimination in
Employment Act of 1967, as amended, the Fair Labor Standards Act, as amended,
the Wisconsin Fair Employment Act, as amended, ERISA, or under any law, statute
or ordinance allowing attorneys' fees and/or costs to a party who "prevails" in
any manner or sense, nor shall this Agreement be deemed to constitute a factor
supporting an award of attorneys' fees and/or costs under any law, statute or
ordinance. All parties are responsible for their own attorney's fees in
connection with the presentation and resolution of their disputes.
12. GOVERNING LAW; SUCCESSORS AND ASSIGNS. This Agreement shall be
governed and construed in accordance with the laws of the State of Wisconsin
without regard to principles of conflicts of laws, and shall be binding upon the
parties hereto and their respective successors and assigns.
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13. MODIFICATION; WAIVER. No provision of this Agreement may be modified
waived or discharged unless such waiver, modification or discharge is agreed to
in writing and signed by Employee and such officer as may be specifically
designated by the Company.
THIS AGREEMENT WAIVES LEGAL CLAIMS AGAINST THE COMPANY, INCLUDING
POTENTIAL AGE DISCRIMINATION AND OTHER CLAIMS. YOU ARE ADVISED TO
CONSULT YOUR OWN ATTORNEY PRIOR TO SIGNING THE DOCUMENT. YOU HAVE
TWENTY-ONE (21) DAYS TO SIGN THIS AGREEMENT. YOUR DECISION TO SIGN
THE AGREEMENT MUST BE KNOWING AND VOLUNTARY.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
last day, month and year written below.
COMPANY: AMERICAN MEDICAL SECURITY GROUP INC.
By: /s/ Samuel V. Miller
Samuel V. Miller, President
Date: August 2, 2002
EMPLOYEE: GARY D. GUENGERICH
/s/ Gary D. Guengerich
Date: August 1, 2002
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