Exhibit
10.1
RELEASE AND SETTLEMENT
AGREEMENT
This Release and Settlement
Agreement (hereinafter “Agreement”) is made by and
between J. Christopher Lee (“Employee”) and Asset
Acceptance, LLC (“Company”).
RECITALS
A. WHEREAS, Employee’s
employment is being terminated effective April 10,
2009;
B. WHEREAS, the parties, without any
admission of liability, desire to settle with finality by way of
compromise, and wish to dispose of and release the claims and
demands asserted, or which might have been asserted, arising out of
Employee’s employment with the Company or his termination
therefrom.
NOW, THEREFORE, in consideration of
the foregoing, and of the promises and mutual covenants contained
herein, Employee and Company agree as follows:
1. Consideration.
Company will pay Employee the gross sum of $72,223, minus normal
withholdings and taxes (the “Lump Sum Amount”). This
sum is paid in order to provide Employee with (1) four
(4) months of salary continuation at his current base salary,
plus (2) $4,400, representing an estimate of the approximate
amount of four months of health insurance premiums under COBRA,
plus (3) $2,500 for April 2009 living expenses. The Company
will reimburse Employee for his mileage at the Company’s
standard mileage rates, up to a maximum amount of $693, for one
round trip between Richmond, Virginia and Detroit, Michigan, upon
receipt of an expense report from Employee not later than
May 8, 2009 for miles driven. Additionally, Company will pay
Employee for any earned but unused paid time-off days, at the date
of termination of Employee’s employment, minus normal
withholdings and taxes.
Employee will be given the
opportunity to continue group health insurance coverage under
COBRA. COBRA notice will be sent to Employee in a separate
letter.
Company will not contest or dispute
any claim made by Employee for unemployment compensation for any
period after the expiration of the four (4) months immediately
following termination of Employee’ employment, such four
(4) month period being allocable to the salary continuation
payment provided to Employee under this Agreement.
Employee acknowledges the
sufficiency of the consideration herein stated and agrees that he
is being provided payments and benefits to which he is not already
entitled. Employee understands that the consideration provided to
Employee under this Agreement is singular to Employee and is not
part of an exit incentive or termination program offered to any
group or class of employees.
2. Release of Claims.
In exchange for the good and valuable consideration set forth
above, Employee, on behalf of himself, his heirs, executors,
administrators, and assigns, agrees to release, waive and discharge
Company, Asset Acceptance Capital Corp. (“AACC”) and
each of its predecessors, successors, affiliates, subsidiaries, and
current or former officers, directors, employees, agents,
attorneys, insurance providers and assigns from any and all causes
of action, claims, rights, charges, suits, damages, debts,
judgments, obligations, grievances, attorneys’ fees, and any
and all other liabilities of any nature, whether in law or in
equity, known or unknown, seen or unforeseen, including, but not
limited to:
|
|
a.
|
claims arising
under Title VII of the Civil Rights Act of 1964 (as amended); the
Civil Rights Act of 1991; Section 1981 of the Civil Rights Act
of 1866; the Family and Medical Leave Act; the Americans With
Disabilities Act; the Age Discrimination in Employment Act of 1967,
as amended; the Michigan Elliott-Larsen Civil Rights Act; the
Michigan Persons With Disabilities Civil Rights Act; the Michigan
Bullard-Plawecki Employee Right to Know Act; the Employee
Retirement Income Security Act; and/or any other federal, state,
local, or municipal statute; and/or
|
|
|
b.
|
claims arising
out of any other federal, state, or local statute, law,
constitution, ordinance or regulation; and/or
|
|
|
c.
|
any other claim
whatsoever including, but not limited to, claims relating to
implied or express employment contracts; public policy; tort;
retaliatory discharge; negligent hiring, retention, or supervision;
defamation; wrongful discharge; intentional infliction of emotional
distress; invasion of privacy; intentional interference with
contract; intentional interference with business relations;
negligence; detrimental reliance; loss of consortium; promissory
estoppel; personal injury; common law; compensatory or punitive
damages; back pay; claims relating to legal restrictions on the
Company’s right to terminate employees or pursuant to any
other claim whatsoever, arising out of or relating to
Employee’s employment with Company and/or any other
occurrence prior to the date Employee signs this Agreement.
However, it is agreed and understood that this waiver and release
does not apply to claims which arise after the date this Agreement
becomes effective, claims which Employee cannot waive by law, or
claims for breach of this Agreement.
|
It is expressly understood that this
Agreement constitutes a full and final settlement, except as
indicated above, of any and all claims for damages, liquidated
damages, or fringe benefits, including but not limited to, any
claim for salary, wages, bonus, pay continuation, severance
benefits, vacation pay, or other benefits, including without
limitation short-term and long-term disability benefits or any
other amounts to which Employee was or will be entitled to from the
Company.
3. Confidentiality.
Employee agrees that he will keep strictly confidential and will
not communicate or disclose to any other person – except as
may be required by law, or as is necessary for securing counsel
from his attorneys or accountants, or upon the prior
Page 2 of 5
written consent of the Company—the
existence of or any facts regarding this Agreement or settlement.
Employee agrees that he will require the persons identified above
to keep the Agreement confidential, and will be responsible and
liable if they breach the confidentiality of this Agreement in the
same way as if had he breached the confidentiality of this
Agreement.
4. Non-Disparagement; Return
of Company Property and Information. Employee agrees that
except for direct communications with the Chief Executive Officer,
Vice President-Human Resources or Vice President-General Counsel of
the Company or AACC, he will not make any communication to any
employee of the Company or to any third party which challenges or
questions the wisdom of the decision to sever his employment
relationship, which states or implies that the Company or AACC is
not a good place to work or which reflects negatively upon the good
character, business ethics, or professional competence of the
Company or AACC or any of their affiliates, officers, directors,
members, employees, agents, successors or assigns. With respect to
inquiries from prospective employers, the Company, in accordance
with existing Company policy, will merely confirm the dates of
Employee’s employment, and his position.
Although the parties expressly agree
to the terms of this non-disparagement provision, this provision
will not prohibit either party, where compelled by legal process,
to testify truthfully under oath, subject to the principles of
attorney/client privilege. Employee agrees that should he become
compelled by law to make any statement regarding the Company, he
will give written notice to the Company with sufficient time to
allow the Company to protect its legal interests.
Employee agrees to execute any and
all documents necessary to resign from his position(s) as an
officer or director of the Company, AACC or of any of their
predecessors, affiliates, successors, or subsidiaries. Employee
agrees (1) to return immediately all property and written or
other tangible material of the Company or AACC, including, without
limitation, any manuals, access cards, files, or data, regardless
of how stored, and (2) without limiting any of the other
rights of the Company or AACC or obligations of the Employee, to
return to the Company not later than the last day of
Employee’s employment by the Company all information,
documents and property referred to in Sections 3 and 7 of the
Non-Disclosure Agreement (as hereinafter defined).
5. No Admission of
Liability. It is further agreed and acknowledged that the
consideration for this Agreement is provided solely to purchase
peace and that the Company does not hereby admit any liability on
account of any said claims or matters, but expressly denies all of
such liability whatsoever.
6. Consultation with Attorney,
Time to Consider, and Revocation. Employee is hereby
advised to and has had the opportunity to consult with an attorney
prior to executing this Agreement.
Employee acknowledges that he was
given a copy of this Agreement and informed that he has 21 days
within which to consider its terms. Employee was also informed that
for
Page 3 of 5
7 days following the execution of this Agreement
he has the unilateral right to revoke the terms. Said revocation,
to be effective, must be in writing and must be delivered to Deanna
Hatmaker, Vice President-Human Resources. Employee acknowledges
that he will not be entitled to the consideration and additional
benefits described in Section 1 of this Agreement until the
expiration of 7 days after Employee signs and returns this
Agreement to the Company’s Vice President-Human Resources.
The Company shall pay Employee the Lump Sum Amount and for any
earned but unused paid time-off days, less normal withholdings and
taxes, on the Company’s first regularly scheduled pay day
after the expiration of 7 days following the execution of this
Agreement by Employee. Employee will not be entitled to these
benefits if Employee materially breaches this Agreement or the
Non-Disclosure Agreement in any way.
7. Workers’
Compensation. Employee warrants that he has not filed any
claim against the Company or any of the above referenced entities
under the Michigan Workers’ Disability Compensation Act, and
affirmatively states that as of the effective date of this
Agreement, he has no knowledge of any grounds to file such a
claim.
8. Controlling
Agreement. The parties further declare and represent that
they fully understand the terms of this Agreement; that no promise,
inducement, or agreement not herein expressed has been made; that
this Agreement contains the entire agreement between the parties as
to the subject matter hereof; and that the terms of this Agreement
are contractual and not a mere recital. Employee acknowledges that
he remains subject to the terms and conditions of the AACC Code of
Business Conduct and the Non-Interference, Non-Disclosure and
Non-Competition Agreement dated as of January 30, 2006,
between the Employee and AACC (the “Non-Disclosure
Agreement”), a copy of which is attached hereto as Exhibit A,
with the sole exception that AACC hereby waives the application of
Section 2 of the Non-Disclosure Agreement, without releasing
Employee from any other obligation, and as a result of that waiver,
Employee will not be entitled to any payment under the
Non-Disclosure Agreement .
9. Clawback. In the
event that Employee breaches any of his obligations set forth in
this Agreement or the Non-Disclosure Agreement (as modified by
Section 8 of this Agreement), the Company shall be entitled to
recapture any amount paid to Employee pursuant to the terms of this
Agreement.
10. Governing Law.
This Agreement shall be deemed to have been executed and delivered
within the State of Michigan and the rights and obligations of the
parties shall be construed and enforced in accordance with, and
governed by, the laws of the State of Michigan without regard to
the principle of conflict of laws.
11. Severability. If
any provision, section, subsection or other portion of this
Agreement shall be determined by any court of competent
jurisdiction to be invalid, illegal, or unenforceable in whole or
in part, and such determination shall become final, such provision,
section, subsection, or portion shall be deemed to be severed or
limited, but (1) only provided that any such provision,
section, subsection, or portion does not negate any of the primary
purposes of the Agreement relating to the release of claims and
the
Page 4 of 5
confidentiality of this Agreement; and
(2) only to the extent required to render the remaining
provisions and portion of this Agreement enforceable. This
Agreement as thus amended shall be enforced so as to give effect to
the intention of the parties insofar as that is
possible.
12. Miscellaneous.
Company and Employee agree that the provisions of Sections 18 and
19 of the Non-Disclosure Agreement are incorporated into and
specifically made part of this Agreement.
WE, THE BELOW SIGNED, HEREBY
ACKNOWLEDGE THAT WE HAVE READ,
UNDERSTAND AND VOLUNTARILY AGREE
TO THE ABOVE TERMS:
|
|
|
|
|
|
|
|
|
|
J. Christopher
Lee
|
|
Date
|
|
|
|
Asset
Acceptance, LLC
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
Date
|
|
|