Exhibit 10.74
AGREEMENT AND RELEASE
Bradford S. Kerr, "Kerr", was informed by HA-LO INDUSTRIES, INC. ("HA-LO") on or
about September 30, 1999 that his employment was being terminated effective
October 8, 1999. "Kerr" 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. "Kerr" 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 "Kerr", his heirs, executors,
administrators, representatives, successors, or assigns, had, or now has,
from the beginning of time to the date hereof, against HA-LO and the
Released Parties, whether based on 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 or any of the Released Parties.
2. "Kerr" 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 for the purpose of selling or
marketing advertising specialties, promotions and incentive programs or (b)
solicit any HA-LO employee or Independent Contractor Sales Representative
for purposes of terminating their relationship with HA-LO.
3. "Kerr" 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 "Kerr'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. "Kerr" acknowledges and agrees that HA-LO has disclosed propriety, trade
secret and confidential information to "Kerr" 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. "Kerr"
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, "Kerr"
acknowledges the receipt and sufficiency of the following:
a. 16 weeks' wages, less applicable payroll taxes, to be paid at
"Kerr's" current wage rate and on the same schedule on which
he is currently paid by HA-LO;
b. 16 weeks continuation of "Kerr's" insurance benefits, if any,
to be maintained at "Kerr'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
their existing Stock Options. These options will remain as if
"Kerr" had not been terminated;
d. HA-LO will provide outplacement service for "Kerr", until
December 31, 1999.
e. "Kerr" further acknowledges and understands that the above
items are not otherwise owed to him under any HA-LO policy.
f. 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 "Kerr"
and/or HA-LO related to or arising out any actions or
omissions made by "Kerr" in his capacity as a HA-LO officer
(an "Event"), HA-LO shall defend and respond to such Event on
"Kerr'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. HA-LO
further agrees to pay "Kerr" his lost wages or salary,
including lost vacation, sick or personal time, for his time
spent investigating, preparing or testifying in regards to any
Event. HA-LO's counsel shall be made aware of this Agreement
and shall bill HA-LO directly for defending or responding to
any such Event on "Kerr's" behalf. "Kerr" agrees to cooperate
in supplying thorough and accurate information to HA-LO in
defending against any Event.
g. HA-LO will supply "Kerr" 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.
6. This Release shall be governed by and interpreted in accordance with the
laws of the State of Illinois.
7. "Kerr" acknowledges that he has entered into this Release freely and
voluntarily.
8. By this document, HA-LO has advised "Kerr" to consult with an attorney
concerning this Agreement and to discuss its terms with an attorney.
9. It is expressly understood and agreed by "Kerr" 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.
10. It is expressly understood and agreed by "Kerr" 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 other than those arising under paragraph 5f.
11. This Agreement and its exhibits, if any constitute and contain the entire
agreement between "Kerr" and HA-LO with respect to the subject matter
hereof. This Agreement supersedes any and all prior negotiations,
agreements, 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.
12. This Agreement may only be modified, amended or supplemented by a writing
executed by the parties affected by such modification, amendment or
supplement.
13. 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.
14. HA-LO provided this document to "Kerr" on or about September 30, 1999.
"Kerr" has a period of 21 calendar days to consider signing this document.
If "Kerr" 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: _______________________________
It's authorized agent
- ------------------