Exhibit 10.73
AGREEMENT AND RELEASE
Michael Nemlich, "Nemlich", was informed by HA-LO INDUSTRIES, INC. ("HA-LO") on
or about September 30, 1999 that his Employment Agreement dated April 15, 1996
was being terminated effective September 30, 1999 for financial reasons.
"Nemlich" wishes to receive a severance payment to which he would not otherwise
be entitled on the occasion of his separation of employment from HA-LO:
In consideration of the foregoing, and for other good and valuable
consideration, the sufficiency of which is hereby acknowledged:
1. "Nemlich" agrees that by executing this Release he does hereby, for
himself, his heirs, executors, administrators, representatives, successors
and assigns, releases and forever discharges HA-LO and each of its
employees, representatives, and all persons acting for, by, through, under
or in concert with any of them (collectively "HA-LO"), of and from any and
all claims, demands, causes of action, suits, debts, accounts, claims for
attorney's fees, interest, expenses and costs, damages, judgments, and
executions of any nature whatsoever, which "Nemlich", his heirs, executors,
administrators, representatives, successors, or assigns, had, or now has,
from the beginning of time to the date hereof, against HA-LO, whether based
on the April 15, 1996 Employment Agreement, the Title VII of the Civil
Rights Act of 1964, the Civil Rights Act of 1991, the Americans with
Disabilities Act, the Age Discrimination in Employment Act, as amended,
including the Older Workers Benefit Protection Act of 1990, or any other
federal or state statute, common law, rule or regulation, whether known or
unknown, against HA-LO.
2. "Nemlich" covenants and agrees that for a period of 2 years, commencing on
the Agreement's effective date, he will not, directly or indirectly, (a)
solicit HA-LO's then-existing accounts or (b) solicit any HA-LO employee or
Independent Contractor Sales Representative for purposes of terminating
their relationship with HA-LO.
3. "Nemlich" covenants and agrees that for a period of 1 year, commencing on
the Agreement's effective date, he will not be employed by or a consultant
to, be engaged in any manner whatsoever by, have an ownership interest
(direct or indirect) in, or be a lender to, any business or person which
competes with HA-LO, in distributing advertising specialties, promotions
and incentive programs to third parties (the "Business"), in any geographic
area in the United States, where HA-LO is currently engaged in the
Business, except for "Nemlich's" passive investment of less than five
percent (5%) of the outstanding shares of capital stock of any publicly
traded corporation engaged in the Business.
4. "Nemlich" acknowledges and agrees that HA-LO has disclosed propriety, trade
secret and confidential information to "Nemlich" which is not in the public
domain regarding the Business (the "Protected Information"). Such Protected
Information consists of, among other things: (i) business and product plans
and development; (ii) creative ideas and developments; (iii) customers;
(iv) business partners, vendors and suppliers; (v) biographical and
financial data of HA-LO and its employees; and (vi) derivatives of all
thereof, as is related to the creation, development, marketing, selling,
products, operations, personnel and financial plans of the Business.
"Nemlich" shall not utilize any such Protected Information for any purpose
in competition with or which will be harmful to the Business or its
personnel.
5. In consideration of such release and other covenants, and provided he does
not revoke this Agreement after execution as provided herein, "Nemlich"
acknowledges the receipt and sufficiency of the following:
a. 15 months' wages, less applicable payroll taxes, through
December 31, 2000, to be paid at "Nemlich's" current wage rate
and on the same schedule on which he is currently paid by
HA-LO;
b. 15 months continuation of "Nemlich's" insurance benefits
through December 31, 2000, if any, to be maintained at
"Nemlich's" current wage rate and on the same schedule on
which he is currently paid by HA-LO;
c. This will have no effect on the Employee's right to exercise
his existing Stock Options. These options will remain as if
"Nemlich" had not been terminated;
d. HA-LO will provide outplacement service for "Nemlich", until
December 31, 1999 or make a cash payment of $6,000 less taxes.
e. "Nemlich" further acknowledges and understands that the above
items are not otherwise owed to him under any HA-LO policy.
f. HA-LO will supply "Nemlich" a laptop computer to be used until
December 31, 1999 at no cost. The laptop shall be returned to
HA-LO's Director of Human Resources, David McGee, in the
condition it was supplied, on or before the close of business
on December 31, 1999.
6. Should any HA-LO client, or any officer, director, shareholder,
representative or agent of any of HA-LO's clients make any demand, claim,
threat or file any suit, action, cause of action or proceeding of any kind
or nature against "Nemlich" and/or HA-LO related to or arising out any
actions or omissions made by "Nemlich" in his capacity as a HA-LO officer
(an "Event"), HA-LO shall defend and respond to such Event on "Hemlich's"
behalf and pay all of his reasonable litigation expenses and costs
(including reasonable attorneys fees, court costs and other reasonable
litigation expenses) on an ongoing basis until such Event is fully and
finally terminated. "Nemlich" agrees to cooperate in the defense of any
Event and in supplying thorough and accurate information to HA-LO in
defending against any Event.
7. "Nemlich" agrees that any payments to be made hereunder are contingent upon
his immediate return and surrender of all HA-LO's property, including but
not limited to HA-LO's Protected Information and any and all originals and
copies of all records notes, memoranda, electronic files, computer disks,
cellular phones, credit cards, pagers, created or obtained by "Nemlich" as
a result of or in the course or connection of his employment.
8. HA-LO shall pay any and all unused vacation time "Nemlich" has remaining
with his final paycheck. "Nemlich" agrees that he has thirteen (13) accrued
and unused vacation days remaining in 1999.
9. This Release shall be governed by and interpreted in accordance with the
laws of the State of Illinois.
10. "Nemlich" acknowledges that he has entered into this Release freely and
voluntarily.
11. By this document, HA-LO has advised "Nemlich" to consult with an attorney
concerning this Agreement and to discuss its terms with an attorney.
12. It is expressly understood and agreed by "Nemlich" that the terms of this
Agreement shall be confidential and that he shall not make any statements,
oral or written, pertaining to or in any way connected with his employment
with HA-LO of his separation of employment therefrom, or to any element of
this Agreement, or any other terms of the Agreement, other than to state
that the matter has been settled, if asked.
13. It is expressly understood and agreed by "Nemlich" that all of his
attorney's fees and costs, if any, incurred by him are to be satisfied out
of the payment set forth in paragraph 5 and that HA-LO shall have no
liability for attorney's fees and costs of any other matter.
14. This Agreement and its exhibits, if any constitute and contain the entire
agreement between "Nemlich" and HA-LO with respect to the subject matter
hereof. This Agreement supersedes any and all prior negotiations,
agreements (including but not limited to the April 15, 1996 Employment
Agreement between HA-LO and "Nemlich"), understandings, correspondence,
communications, covenants, arrangements, representations and warranties,
whether oral or written (together the "Prior Communications") and no one
may rely or shall be deemed to have relied upon such Prior Communications.
15. This Agreement may only be modified, amended or supplemented by a writing
executed by the parties affected by such modification, amendment or
supplement.
16. If any provision of this Agreement shall for any reason be held invalid or
unenforceable, such inability or uneforceability shall not be construed as
though such invalid or unenforceable provision had never been contained
herein. If a provision is severed under this paragraph, the parties agree
to negotiate in good faith to replace such provision with a provision that
closely approximates the intent of the severed provision.
17. HA-LO provided this document to "Nemlich" on or about September 30, 1999.
"Nemlich" has a period of 21 calendar days to consider signing this
document. If "Nemlich" chooses to sign this document, he may revoke his
assent at any time within a period of seven (7) calendar days following the
execution by him by providing written notice of same to David McGee,
HA-LO's Human Resources Director, 5980 West Touhy Avenue, Niles, Illinois,
60714-4610, fax number (847) 588-8813.
I HAVE READ AND UNDERSTAND AND AGREE TO BE BOUND BY THE ABOVE RELEASE. I HAVE
BEEN ADVISED TO SEEK THE ADVICE OF AN ATTORNEY OF MY OWN CHOOSING. I HAVE SIGNED
THIS RELEASE FREELY AND VOLUNTARILY.
HA-LO INDUSTIRES, INC.,
_____________________________ By: _______________________________
Michael Nemlich It's authorized agent
Dated:__________________