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Exhibit 10.79
RELEASE AND SEPARATION AGREEMENT
THIS RELEASE AND SEPARATION AGREEMENT ("AGREEMENT"), by and between
INSURANCE MANAGEMENT SOLUTIONS GROUP, INC., a Florida corporation, and its
subsidiaries and affiliates (collectively, the "Company") whose address is 360
Central Avenue, St. Petersburg, Florida 33701, and CHRISTOPHER P. BREAKIRON
("Releasor") whose address is 2415 Pelham Road North, St. Petersburg, FL 33710,
to be effective this 12th day of April, 2001 ("Effective Date").
WHEREAS, Company employed Releasor as Vice President of the Company;
and
WHEREAS, the Company's employment relationship with Releasor was an
employment at will arrangement, and the Company has the right to terminate
Releasor at any time with or without cause; and
WHEREAS, the Company and Releasor wish to terminate the employment
relationship on a reasonable basis and provide Releasor with termination
benefits that will assist in Releasor's transition to another position outside
of the Company; and
WHEREAS, Releasor and Company also desire to resolve and finally
settle any disputed claims, including, but not limited to, all claims arising
out of Releasor's employment with Company prior to the term of this Agreement,
or the termination of such employment, and to spell out the terms of this
settlement.
NOW, THEREFORE, in and for the consideration of the mutual covenants
and agreements contained herein, and in further consideration of the benefits
and advantages flowing from each party to the other, the receipt and
sufficiency of which is hereby acknowledged, the Company and Releasor hereby
covenant and agree as follows:
I. COMPANY'S PROMISES:
A. Company will pay Releasor a sum ("Severance Payment") of
SEVENTY FOUR THOUSAND NINE HUNDRED AND NINETY NINE AND 99/100
DOLLARS ($74,999.99), less applicable taxes and all other
customary withholdings. The above amount shall be paid by
Company (in the ordinary course of business, through
Company's payroll system) to Releasor in thirteen (13) equal
bi-weekly installments of FIVE THOUSAND SEVEN HUNDRED AND
SIXTY NINE AND 23/100 DOLLARS ($5,769.23) over a thirteen (13)
week period ("Severance Period") beginning on the first full
pay period completed following May 15, 2001 ("Separation
Date"). The Company will also make additional severance
payments ("Additional Severance Payments") for a period of
three additional months ("Extended Severance Period") if
Releasor is unable to secure comparable employment under
similar terms and conditions during the Extended Severance
Period. ADDITIONAL SEVERANCE PAYMENTS PAID BY COMPANY TO
RELEASOR DURING THE EXTENDED SEVERANCE PERIOD SHALL TOTAL
THIRTY SEVEN THOUSAND FIVE HUNDRED AND 00/100 DOLLARS
($37,500.00), LEES APPLICABLE TAXES AND ALL OTHER CUSTOMARY
WITHHOLDINGS. The above amount shall be paid by Company to
Releasor in six (6) equal bi-weekly installments of Five
Thousand Seven Hundred and Sixty Nine and 23/100 Dollars
($5,769.23), commencing on the next regularly scheduled
payroll date following payment of the final Severance Payment
due in connection with the initial Severance Period, and one
(1) final installment of Two Thousand Eight Hundred Eighty
Four and 62/100 ($2,884,62).
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HOWEVER, UNDER NO CIRCUMSTANCES SHALL ADDITIONAL SEVERANCE BE
PAID AFTER THE NINE (9) MONTH ANNIVERSARY OF THE SEPARATION
DATE.
Releasor shall be entitled to the Severance Payments and
Additional Severance Payments payable pursuant to this
Agreement provided Releasor is in full and timely compliance
with the material terms and conditions of this Agreement.
Provided further, in the event that Releasor secures
employment at any time during the Extended Severance Period,
then the Company shall be entitled to a credit against its
obligations to make the Additional Severance Payments during
the Extended Severance Period in the amount of up to one
hundred percent (100%) of base salary paid to Releasor
during the Extended Severance Period by his new employer.
B. Releasor shall be eligible to purchase continued health
insurance coverage from the Company in accordance with the
Company's health insurance plan guidelines and COBRA
guidelines.
C. Releasor shall not be entitled to receive any other
compensation or benefits from Company, including but not
limited to, any and all compensation for unpaid vacation or
sick time that may have accrued during Releasor's employment
with Company.
D. The Company agrees to keep this Agreement strictly
confidential. This promise includes information regarding the
terms of the Agreement and any discussions among the Parties
leading up to this Agreement. The Company further agrees that
it will:
1. Not provide or disclose the Agreement and/or any
information concerning this Agreement or the
negotiations leading to this Agreement to anyone
other than its professional representatives, such as
attorneys and accountants, and, even as to such
persons, only if such persons are informed of and
agree to be bound by this confidentiality
requirement; and
2. Not disparage the reputation, character or name of
Releasor in any way, to any person or entity; and
3. Inform its officers, directors and employees of
their obligations under this section; and
4. Provide a favorable recommendation regarding
Releasor's employment history with Company to any
party requesting such information.
This Section shall not prohibit disclosure of the terms,
amount or existence of this Agreement to the extent legally
necessary to enforce this Agreement or to the extent
otherwise legally required.
E. Company irrevocably and unconditionally waives, releases, and
forever disclaims all real or perceived claims, demands,
causes of action, obligations, liabilities, damages, losses,
suits, debts, liens, contracts, agreements, promises, rights,
controversies, cost, or expenses of any kind or nature,
whether known or unknown, suspected or unsuspected fixed or
contingent (hereinafter, collectively "claim" or "claims")
against Releasor which Company is entitled or at any time
prior hereto may have had against Releasor, resulting
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from or based on anything which has occurred prior to the
Separation Date, EXCEPT (1) any claims related to Releasor's
failure to pay any loans or other debts to Company or its
subsidiaries, (2) any claims arising from or as a result of
fraud or deceit by Releasor while employed by Company, and
(3) any claims as a result of any failure of performance
under this Agreement.
F. Releasor's last day of full time employment with the Company
shall be April 17, 2001. Thereafter, from the period
beginning on April 18, 2001 and ending on May 15, 2001,
Company will employ Releasor as a consultant to perform the
consulting services specified in the Consulting Agreement
which is attached hereto as Exhibit "B".
II. RELEASOR PROMISES:
A. Releasor's employment in all capacities with the Company is
hereby terminated and Releasor will execute contemporaneously
with the execution of this Agreement a resignation from all
offices and positions, substantially in the form of Exhibit
"A" attached hereto and made a part hereof, to be effective
as of April 17, 2001. Provided further, Releasor will not
seek or accept any employment or any contractual or
independent contractor relationship with Company or any of
Company's current subsidiaries, divisions, parents or
affiliates at any time hereinafter except as specifically
provided for herein.
B. Releasor hereby waives, terminates and otherwise releases any
and all of Releasor's right, title and interest in and to any
and all present or future options or agreements for Releasor
to purchase or otherwise acquire stock in the Company and/or
any of Company's subsidiaries and affiliates.
C. Releasor irrevocably and unconditionally waives, releases and
discharges Company, its current subsidiaries, divisions,
parents, affiliates, predecessors, successors and assigns,
and their respective principals, directors, officers,
employees, agents, attorneys, and others acting in concert
with the foregoing (collectively, "Released Parties") from
and against any and all legal, equitable, or administrative
claims, known and unknown, contingent or otherwise, that
Releasor may have or believes to have against any or all such
Released Parties arising on or before the Separation Date,
including but not limited to, any and all claims arising from
Releasor's employment with or separation from Company (except
for any dispute arising out of the performance or enforcement
of this Agreement) and arising from Releasor's term as an
officer of Company. This release specifically includes, but
is not limited to, any claims arising under the Florida Civil
Rights Act, the Federal Civil Rights Act of 1866, 1871, 1964
and 1991 (respectively), the Fair Labor Standards Act, the
Equal Pay Act, the Employee Retirement Income Security Act
(except as to any vested retirement benefits), the
Occupational Safety and Health Act, the American with
Disabilities Act, the Family Medical Leave Act; any workers
compensation law dealing with work related injuries or
illness, any unemployment benefits law dealing with
unemployment benefit claims, and all other claims
(negligence, breach of contract, fraud, deceit, outrage,
etc.) arising under federal, state, or local statutes, common
law, or ordinances, including but not limited to the federal
Age Discrimination in Employment Act. This release also
includes but is not limited to a release of and from any and
all claims for tortious conduct, wrongful discharge or for
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attorneys' fees and costs arising from or in any manner
related to the activities covered by this Agreement.
D. Releasor agrees to keep this Agreement strictly confidential,
including without limitation, any and all information
regarding the terms of this Agreement and any discussions and
negotiations among the parties hereto regarding this
Agreement. Releasor further agrees that Releasor will not:
1. provide or disclose any terms of this Agreement
and/or any information concerning this Agreement or
the negotiations involving this Agreement to anyone
whomsoever; provided, however, Releasor may disclose
such information to Releasor's spouse or
professional representative, such as attorneys and
accountants, on the specific condition that such
person(s) is/are informed of and agree to be bound
by this confidentiality requirement; and
2. disparage the reputation, character or name of
Company and Company's affiliates and subsidiaries in
any manner whatsoever to any person or entity.
This Section shall not prohibit disclosure of the terms,
amount or existence of this Agreement to the extent legally
necessary to enforce this Agreement or to the extent
otherwise legally required. If Releasor or Releasor's counsel
receives a subpoena or request to produce this Agreement or
testify concerning it in any court or legal proceeding,
Releasor agrees to notify Company before responding to such
subpoena or request and, in the absence of any judicial order
to the contrary, to afford Company an opportunity to assert
any objection it may have before Releasor appears to testify
or produces this document.
E. Releasor promises never to file a charge, claim or lawsuit,
asserting any claims that are released in Section II.C. or to
seek or accept any relief for any such claim. Moreover,
Releasor agrees that if Releasor breaks the promise contained
in this Section II.C. and files a lawsuit based on legal
claims Releasor has released herein, Releasor shall pay any
and all costs incurred in defending the claim by any of the
Released Parties, including, without limitation, reasonable
attorneys' fees and expenses.
F. Releasor represents and agrees that all Company products,
customer correspondence, internal memoranda, products and
designs, sales brochures, training manuals, project files,
price lists, customer and vendor lists, prospectus reports,
customer or vendor information, sales literature, notebooks,
textbooks, existing and contemplated business and financial
methods, concepts, practices, and know-how, plans, pricing,
marketing and selling techniques and information, employee
lists and records, customer credit ratings and credit
histories, and all other like information, documents or
products, including all copies, duplications, replications,
and derivatives of such information, documents or products
(collectively, "Confidential Information"), now in the
possession of Releasor or acquired by Releasor while in the
employ of Company, are and shall remain the exclusive
property of Company and shall be returned to legal counsel
for Company no later than the fifth (5th) day after the
Separation Date (the foregoing provision being a condition
precedent to Company's obligation to make any payment to
Releasor hereunder). Further, Releasor will not, directly or
indirectly, disclose any Confidential Information to any
person or entity unless such disclosure is authorized in
advance and
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in writing by Company and Releasor will not, directly or
indirectly, use any Confidential Information in any manner
whatsoever. The term Confidential Information means all
information about the Company and or its customers that was
provided to Releasor, whether such information is conveyed
directly by the Company or otherwise. The term Confidential
Information does not include information that (i) is or
becomes available to the public other than as a result of
disclosure by Releasor, (ii) was within Releasor's possession
prior to being furnished to Releasor by the Company, provided
that the source of such information was not known by Releasor
to be bound by a confidentiality agreement with the Company
or (iii) becomes available to Releasor on a non-confidential
basis and lawfully from a source other than the Company or
any of this representatives, provided that such other source
is not bound by a confidentiality agreement with the Company.
Notwithstanding the foregoing, this Section shall not
prohibit disclosure of Confidential Information to the extent
otherwise legally required.
III. ARBITRATION OF DISPUTES:
A. The parties agree that any dispute about the validity,
interpretation, effect or alleged violations of this
Agreement ("Arbitrable Dispute") between Releasor and any
Release Parties, must be submitted to final and binding
arbitration in Tampa, Florida before an experienced
employment arbitrator licensed to practice law in Florida and
selected in accordance with the Employment Dispute Rules of
the American Arbitration Association. The arbitrator may not
modify or change this Agreement in any way.
B. Each party shall pay the fees of their respective attorneys,
the expenses of their witnesses and any other expenses
connected with the arbitration, but all other costs of the
arbitration, including the fees of the arbitration, cost of
any record or transcript of the arbitration, administrative
fees and other fees and costs shall be paid in equal shares
by Releasor and Company. The party losing the arbitration
shall reimburse the party who prevailed for all expenses the
prevailing party paid pursuant to the preceding two
sentences.
C. Arbitration in this manner shall be the exclusive remedy for
any Arbitrable Dispute. The arbitrator's decision or award
shall be fully enforceable and subject to an entry of
judgment by a court of competent jurisdiction. Should
Releasor or Company attempt to resolve an Arbitrable Dispute
by any method other than arbitration pursuant to this
Section, the responding party shall he entitled to recover
from the initiating party all damages, expenses and
attorneys' fees incurred as a result and the responding party
shall be entitled to the return of any payments that party
made under this Agreement.
D. Notwithstanding the foregoing, a dispute relating to alleged
violations of Section I.D.(1) and II.D.(1) involving the
disclosure of the existence, terms or amounts of this
Agreement, may be resolved through a means other than
Arbitration.
IV. RESTRICTIVE COVENANTS:
A. Releasor hereby expressly covenants and agrees, which
covenants and agreements are the essence of this Agreement,
that Releasor will not, for a period of one year from the
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Separation Date, for any reason whatsoever, directly or
indirectly, on Releasor's behalf or on behalf of or in
conjunction with any other person, persons, company,
partnership, corporation, association, trust or joint
venture, whether as an individual, partner, officer,
director, employee, advisor, Releasor, agent, representative
of a corporation, trustee or fiduciary:
1. Counsel, solicit, or attempt to induce any person
employed by Company (or any of Company's affiliated
or related companies), whether that employee is a
full time employee, part time employee, or
independent contractor, to terminate Releasor's
employment with Company;
2. Provide goods or services to any EXISTING CUSTOMERS
of Company (or any of Company's affiliated or
related companies) through any entity other than
Company (or party of Company's affiliated or related
companies) in competition with the business of
Company (or any of Company's affiliated or related
companies), as such business now exists or as it may
exist at the time of termination of this Agreement.
For the purposes of this Agreement, the term
"Existing Customers" shall mean any entity, whether
a corporation, partnership, limited liability
company, joint venture, association, or other
business organization to which Company (or any of
Company's affiliated or related companies) has,
within the one (1) year immediately preceding the
termination of Releasor's employment with Company:
(a) agreed to provide goods and services; or (b)
provided goods and services.
The Company and Releasor agree that the restrictive covenants
contained in this Section IV, or any of its sub-paragraphs,
are reasonable and necessary restraint of trade and does not
violate the Sherman Antitrust Act, the Florida Antitrust Act,
or the common law, and that each restrictive covenant is
supported by a valid business interest. The Company and
Releasor also agree that the restrictive covenants contained
in this Section, or any of its sub-paragraphs, are severable
and separate and the illegality, invalidity, or
unenforceability of any specific covenant therein shall not
affect the legality, validity or enforceability of any other
covenants set forth herein. These covenants on the part of
Releasor shall be construed as an agreement independent of
any other provision of this Agreement, and the existence of
any claim or cause of action of Releasor against the Company,
whether predicated on this Agreement or otherwise shall not
constitute a defense to the enforcement by the Company of
said covenants.
Releasor agrees and hereby acknowledges that any violation by
Releasor of the covenants set forth in this Section IV may
cause damage to the Company, and Releasor further agrees that
upon proof of the existence of such a violation of the
covenants set forth in this Section, the Company will be
entitled to injunctive relief against Releasor by any Court
of competent jurisdiction.
V. MISCELLANEOUS TERMS AGREED TO BY THE PARTIES:
In exchange for the mutual promises made by the parties hereto, the
parties mutually agree to the following additional terms:
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A. This Agreement, and performance under its terms, shall be
governed in all respects by the law of Florida without regard
to its law concerning choice of laws.
B. By entering into this Agreement, Company and Releasor do not
admit to violating any state, federal, or local laws, or to
any wrongful conduct of any kind. Company and Releasor
expressly deny any wrongdoing or violation of any law. This
Agreement shall not be admissible as evidence of an admission
of liability, wrongdoing or a violation of any law by Company
(including Company's agents or employees) or Releasor in any
proceeding under any federal, state or local law.
C. This Agreement contains the entire and only agreement between
Company and Releasor on any subject encompassed herein. Both
parties waive any oral or written promises or assurances that
are not contained in this Agreement, other than claims to
vested pension benefits.
D. The provisions of this Agreement are severable. If any part
of it is found to be unenforceable, all other provisions
shall remain fully valid and enforceable.
E. This agreement shall bind Releasor's heirs, administrators,
representatives, executors, successors and assigns, and shall
inure to the benefit of all Released Parties and their
respective heirs, administrators, representatives, executors,
successors and assigns.
F. All paragraph headings are for reference purposes only and
are not intended to alter the meaning or interpretation of
any provision.
G. All of the rights of the Company and Releasor hereunder shall
be cumulative and not alternative. A waiver or indulgence on
the part of the Company or Releasor of any rights or
entitlements hereunder shall not be construed as a waiver of
any other rights or entitlements hereunder by either the
Company or Releasor. In the event that a material breach
occurs or that a material breach is alleged, the injured
party shall give the breaching party written notice of their
intention to terminate this Agreement. The notice shall
specify the nature of the material breach and shall give the
breaching party fifteen (15) days to cure such material
breach. If the material breach is not cured within the time
allowed, this Agreement shall automatically terminate without
further notice and the injured party may pursue any and all
legal remedies available.
VI. RELEASOR'S ACKNOWLEDGMENTS AND ASSURANCES TO COMPANY:
This Agreement is a legal document with legal consequences. Company
wants to be certain that Releasor fully understands the legal effect
of signing this Agreement. Releasor, therefore, makes the following
assurances to Company:
A. Releasor has read this Agreement and understands all of its
provisions. Releasor has had a full twenty-one (21) days
within which to consider this Agreement before executing it,
or has voluntarily waived such time period to obtain the
payments set forth in Section I.A.
B. Releasor voluntarily enters into this Agreement, which is
contractual in nature and contains a release of all known and
unknown claims.
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C. Releasor has been given reasonable time to review this
Agreement, and has consulted with Releasor's lawyer
concerning the terms of this Agreement. Releasor acknowledges
that Releasor is executing this Agreement freely and
voluntarily, solely because Releasor has already fully and
carefully considered this Agreement before signing it.
D. Releasor has the capacity to execute this Agreement and be
bound by it.
E. Releasor understands that rights or claims by either party
that may arise after the date this Agreement is executed are
not waived.
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PLEASE READ THIS AGREEMENT CAREFULLY. IT CONTAINS A RELEASE OF ALL KNOWN AND
UNKNOWN CLAIMS.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first set forth above.
RELEASOR:
/s/ Chris P. Breakiron
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Chris P. Breakiron
SWORN TO AND SUBSCRIBED BEFORE ME THIS 12th DAY OF APRIL, 2001.
/s/ Gail T. Basile
- ------------------------------------------ [NOTARY SEAL]
Notary Public
My Commission Expires: April 12, 2004
COMPANY:
INSURANCE MANAGEMENT SOLUTIONS GROUP, INC.
By: /s/ D. M. Howard
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D. M. Howard
Title: President/CEO
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Exhibit "A"
RESIGNATION FROM OFFICE
I, Chris P. Breakiron, do hereby resign and any and all offices that I
may hold or have held in Insurance Management Solutions Group, Inc., a Florida
corporation or any of its subsidiaries or affiliates including, but not limited
to, the following:
Insurance Management Solutions, Inc.
IMS Direct, Inc.
Geotrac of America, Inc.
Colonial Claims Corporation
This resignation shall be effective as of April 17, 2001.
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Chris P. Breakiron