Termination Agreement - HRB Management Inc. and Frank J. Cotroneo
TERMINATION AGREEMENT
THIS TERMINATION AGREEMENT (the "Agreement") is entered into as of the
3rd day of September, 2003, by and between HRB Management, Inc., a Missouri
corporation ("HRB"), and Frank J. Cotroneo ("Cotroneo").
ARTICLE ONE
TERMINATION OF EMPLOYMENT
1. Mutual Agreement to Terminate Employment Agreement. HRB and Cotroneo
acknowledge and agree that they are parties to an Employment Agreement dated
January 26, 2000 (the "Employment Agreement"), and that they desire to terminate
Cotroneo's employment under the Employment Agreement by this Agreement. The
parties agree that such termination of employment is mutual and shall not be
considered a termination for or without "cause" or for "good reason" (as such
terms are defined in the Employment Agreement), except as noted for the sole
purpose described in Section 4(a)(iii) of this Agreement. Such employment and
the Employment Agreement will terminate effective as of the close of business on
October 31, 2003, or such earlier date as is mutually agreed upon by the parties
in writing (the "Termination Date"). By this Agreement, the parties agree to
waive any notice of termination required by the Employment Agreement.
2. Surviving Obligations. Notwithstanding the above, the termination of
Cotroneo's employment will not affect the following provisions of the Employment
Agreement which, by their express terms as set forth therein, impose continuing
obligations on one or more of the parties following termination of the
Employment Agreement:
o Article Two, "Confidentiality," Sections 2.01, 2.02
o Article Three, "Non-Hiring; No Conflicts; Noncompetition,"
Sections 3.01, 3.02, 3.04, 3.05
o Article Four, "Miscellaneous," Section 4.06.
3. Resignation as Officer.
(a) Cotroneo will resign (i) as Senior Vice President and Chief
Financial Officer of H&R Block, Inc. ("Block") and (ii) from any and all officer
and director positions held with HRB and all other subsidiaries of Block (all
such other subsidiaries of Block, collectively "Affiliates" and individually an
"Affiliate"). Such resignations will be effective as of the Termination Date,
except as provided in Section 3(b) of this Agreement. Cotroneo will execute
resignations in the form attached hereto as Exhibit A contemporaneously with his
execution of this Agreement.
(b) Cotroneo acknowledges that Block is undertaking a search for a new
Chief Financial Officer and, in the event Block is prepared to elect a new Chief
Financial Officer prior to the Termination Date, Cotroneo agrees to accelerate
his resignation as Senior Vice President and Chief Financial Officer of Block
and execute a new resignation effective as of the date Block elects such new
Chief Financial Officer. Such accelerated resignation shall have no effect on
Cotroneo's continued employment with HRB through the Termination Date
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and shall not provide grounds for Cotroneo to terminate the Employment Agreement
for "good reason."
4. Continued Employment: Compensation and Benefits.
(a) In consideration of Cotroneo's promises herein, HRB agrees to
continue to employ Cotroneo through the Termination Date, and that Cotroneo will
be paid his base salary (at the rate of $389,000 per year) and benefits as of
the date of this Agreement through the Termination Date. Upon Cotroneo's
execution of the release agreement attached hereto as Exhibit B (the "Release
Agreement") on the Termination Date, HRB will agree to provide the
compensation and benefits as follows and as described in the Release Agreement
on the terms described therein:
(i) In further consideration for Cotroneo's promises herein,
HRB will pay to Cotroneo $301,476 (which amount represents an aggregate
of one-half of Cotroneo's (A) annual base salary and (B) target
short-term incentive compensation for HRB's fiscal year 2004, each
determined as of the date of this Agreement) over the 6-month period
beginning on the Termination Date in semi-monthly equal installments of
$25,123 (less required tax withholdings and elected benefit
withholdings). Such payments shall not encompass payment to Cotroneo
for any unused vacation or other paid time off accrued as of the
Termination Date, payment for which will be made in accordance with
HRB's policy as soon as administratively feasible after the Termination
Date.
(ii) Cotroneo will remain eligible to participate in those
health and welfare plans maintained by HRB offering medical, dental,
vision, employee assistance, flexible spending account, life insurance,
and accidental death and dismemberment insurance benefits during the
6-month period beginning on the Termination Date on the same basis as
employees of HRB, after which Cotroneo may be eligible to continue
coverage of those benefits provided under group health plans in
accordance with his rights under Section 4980B of the Internal Revenue
Code.
(iii) For the limited purpose of permitting Cotroneo to
exercise those stock options to purchase shares of Block's common stock
granted to Cotroneo by Block ("Stock Options") that are outstanding and
exercisable as of the Termination Date, for the first 3 months after
the Termination Date, HRB agrees to characterize Cotroneo's termination
of employment as a termination of employment by HRB without "cause."
Such characterization shall have no effect on the number of Stock
Options outstanding and exercisable as of the Termination Date. A list
of the Stock Options existing and exercisable as of the date of this
Agreement is attached hereto as Exhibit C.
(b) The compensation and benefits described in Section 4(a) of this
Agreement will cease and no further compensation and benefits will be provided
to Cotroneo under the Release Agreement if Cotroneo knowingly violates any of
his post-employment obligations as set forth in Sections 2 and 6 of this
Agreement. If Cotroneo unknowingly violates any of his post-employment
obligations as set forth in Sections 2 and 6 of this Agreement, Cotroneo agrees
to take such actions as are necessary to correct the violation(s) once he is
made aware of the violation(s).
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(c) The parties agree that, in accordance with Section 1.06(c) of the
Employment Agreement, HRB shall have no further financial obligations to
Cotroneo under the Employment Agreement and no further payments of base salary
or other compensation or benefits shall be payable by HRB to Cotroneo, except
(i) as required by the express terms of any written benefit plans or written
arrangements maintained by HRB and applicable to Cotroneo as of the Termination
Date, (ii) as may be required by law, or (iii) as have been mutually agreed upon
between the parties in this Agreement.
(d) Upon Cotroneo's execution of the Release Agreement on the
Termination Date, HRB, on behalf of itself, Block, and Affiliates, will on the
Termination Date also execute the Release Agreement as provided for therein.
5. Business Expenses: Commitments. HRB will promptly pay directly, or
reimburse Cotroneo for, all business expenses to the extent such expenses are
paid or incurred by Cotroneo during the term of the Employment Agreement in
accordance with HRB's policy in effect from time to time and to the extent such
expenses were reasonable and necessary to the conduct by Cotroneo of HRB's
business. During the period from the date of this Agreement through the
Termination Date and at all times thereafter, Cotroneo will not initiate, make,
renew, confirm or ratify any contracts or commitments for or on behalf of Block,
HRB or any Affiliate without Block's prior written consent.
6. Cotroneo's Responsibilities.
(a) During the period from the date of this Agreement through the
Termination Date, Cotroneo will act in a manner consistent with the standards of
conduct and performance he has observed during his employment with HRB and will
cooperate with management of Block, HRB and any Affiliate as requested in
providing information regarding areas of his expertise and experience with
Block. Cotroneo acknowledges that his employment responsibilities may be reduced
prior to the Termination Date at HRB's sole discretion and that any such
reduction in employment responsibilities shall not provide grounds for Cotroneo
to terminate the Employment Agreement for "good reason."
(b) After the Termination Date and for a period of one year thereafter,
in the event a (i) claim is asserted against Block, HRB or any Affiliate and/or
their respective employees, agents, officers, or directors or (ii) a government
investigation is commenced with respect to Block, HRB or any Affiliate and/or
their respective employees, agents, officers, or directors, Cotroneo will,
without compensation, except for reimbursement for any out-of-pocket expenses,
provide reasonable assistance and cooperation with Block, HRB and Affiliates in
connection with such a claim or government investigation. Thereafter Cotroneo
will similarly assist and cooperate with Block, HRB and/or Affiliates, for which
he will be reimbursed for his costs and paid reasonable compensation for his
time, as agreed upon by the parties, except in litigation matters where Cotroneo
is a named party. In such cases Cotroneo will continue to provide reasonable
cooperation, as requested, and will receive reimbursement for his costs, but
receive no compensation for his time.
(c) Cotroneo will not at any time or in any manner (i) defame Block,
HRB, or any Affiliate or their respective past or present directors and
employees, (ii) make disparaging statements to the media, or to any employee or
contractor of Block, HRB or any other Affiliate, concerning Block, HRB or any
Affiliate, their respective past or present directors
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and employees concerning any matter related to his employment or non-employment,
or (iii) do any deliberate act designed primarily to injure the business or
reputation of Block, HRB or any Affiliate. Nothing in this provision shall be
construed to prevent Cotroneo from responding to a subpoena or other lawfully
issued summons, or from providing truthful information to any law enforcement or
administrative agency or prospective employer; or from making appropriate
disclosures to counsel for Block, HRB, or any Affiliate, to Block's external
auditors, or to the Audit Committee of the Board of Directors of Block, as to
any subject within the scope of Cotroneo's employment. Cotroneo agrees that any
information permitted to be provided to a prospective employer pursuant to the
prior sentence will not include information required to be held confidential in
accordance with his post-employment obligations set forth in Section 2 of this
Agreement.
7. HRB's Responsibilities. Neither HRB, Block, any Affiliates, nor any
of their senior executive officers or directors will at any time or in any
manner (i) defame Cotroneo, (ii) make disparaging statements to the media or to
any employee or contractor of HRB, Block or Affiliates regarding Cotroneo, his
performance, character, status or any other personal or professional matter, or
(iii) do any deliberate act designed in whole or in part to injure, embarrass or
damage Cotroneo's reputation, or interfere with his ability to obtain new
employment. HRB and Cotroneo agree that HRB will respond to inquiries from
Cotroneo's prospective new employers by providing the letter attached hereto as
Exhibit D, and will otherwise only act consistently with its then-current
practice of providing certain limited information to prospective employers of
former employees. Cotroneo agrees that furnishing such letter and complying with
such practice shall not constitute interference with his ability to obtain new
employment. Nothing in this provision shall be construed to prevent HRB, Block,
or any Affiliates from responding to a subpoena or other lawfully issued
summons, or from providing truthful information to any law enforcement or
administrative agency.
8. Third-Party Beneficiary. The parties hereto agree that Block is a
third-party beneficiary as to the obligations imposed upon Cotroneo under the
Employment Agreement and this Agreement and as to the rights and privileges to
which HRB is entitled pursuant to the Employment Agreement and this Agreement,
and that Block is entitled to all of the rights and privileges associated with
such third-party-beneficiary status.
9. Successors and Assigns. This Agreement and each of its provisions
will be binding upon Cotroneo and the heirs, executors, successors and
administrators of Cotroneo or his estate and property, and will inure to the
benefit of HRB, Block and their successors and assigns. Cotroneo may not assign
or transfer to others the obligation to perform his duties hereunder.
10. Specific Performance. The parties acknowledge that money damages
alone will not adequately compensate HRB, Block or Cotroneo for breach of any of
the covenants and agreements herein and, therefore, in the event of the breach
or threatened breach of any such covenant or agreement by either party, in
addition to all other remedies available at law, in equity or otherwise, a
wronged party will be entitled to injunctive relief compelling specific
performance of (or other compliance with) the terms hereof.
11. Disputes. In the event that after the parties have executed this
Agreement, there is a dispute or disagreement between the pates as to the
interpretation, implementation or enforcement of any aspect of this Agreement,
the parties agree to submit
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such dispute or disagreement to non-binding mediation. In the event any such
dispute or disagreement is not resolved by mediation, the prevailing party in
any subsequent litigation shall be entitled to reimbursement for reasonable
legal fees that party expended in the mediation and litigation.
12. Entire Agreement. This Agreement, the Release Agreement (if such
Release Agreement is fully executed), and the surviving post-termination
obligations of the Employment Agreement constitute the entire agreement and
understanding between HRB and Cotroneo concerning the subject matter hereof. No
modification, amendment, termination, or waiver of this Agreement will be
binding unless in writing and signed by Cotroneo and a duly authorized officer
of HRB. Failure of HRB, Block or Cotroneo to insist upon strict compliance with
any of the terms, covenants, or conditions hereof will not be deemed a waiver of
such terms, covenants, and conditions.
13. Notices. Notices hereunder will be deemed delivered five days
following deposit thereof in the United States mail (postage prepaid) addressed
to Cotroneo at 11709 High Drive, Leawood, Kansas 66211; and to HRB at 4400 Main
Street, Kansas City, Missouri 64111; Attn: Mark A. Ernst, with a copy to James
H. Ingraham, Esq., H&R Block, Inc., 4400 Main Street, Kansas City, Missouri
64111; or to such other address and/or person designated by any party in writing
to the other parties.
14. Counterparts. This Agreement may be signed in counterparts and
delivered by facsimile transmission confirmed promptly thereafter by actual
delivery of executed counterparts.
Executed as a sealed instrument under, and to be governed by,
construed and enforced in accordance with, the laws of the State of Missouri.
/s/ Frank J. Cotroneo
---------------------
Frank J. Cotroneo
Dated: 9/4/03
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HRB Management, Inc.
a Missouri corporation
By: /s/ Mark A. Ernst
------------------
Mark A. Ernst
President and Chief Executive Officer
Dated: 4 Sept. 03
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EXHIBIT A
RESIGNATION
TO: The Board of Directors of [Name of Company]:
-----------------
Effective October 31, 2003, I hereby resign as [position] of [Name of
Company], a [Name of State] corporation.
Dated:
-------------------------- ------------------------------
Frank J. Cotroneo
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EXHIBIT B
RELEASE AGREEMENT
THIS RELEASE AGREEMENT ("this Release Agreement") is entered into as of
the 31st day of October 2003, by and between HRB Management, Inc., a Missouri
corporation ("HRB"), and Frank J. Cotroneo ("Cotroneo").
WHEREAS, HRB and Cotroneo are parties to an Agreement dated as of
September 3, 2003, under which the parties mutually agreed to terminate the
Employment Agreement dated January 26, 2000, by and between HRB and Cotroneo
(the "Employment Agreement"), and Cotroneo's employment thereunder (the
"Termination Agreement").
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the sufficiency of which is hereby acknowledged, the
pates agree as follows:
1. Release by Cotroneo. In consideration of HRB's promise to Cotroneo
of the compensation and benefits specified in Section 5 of this Release
Agreement and Section 4 of the Termination Agreement, Cotroneo for himself and
for his relations, heirs, legal representatives, and assigns unconditionally
releases and forever discharges H&R Block, Inc. ("Block"), HRB and each other
subsidiary of Block (each such other subsidiary an "Affiliate"), their
respective present and past directors, officers, employees, agents,
predecessors, successors, and assigns of and from any and all claims, demands,
actions, causes of action and suits of any kind whatsoever, whether under
federal or state statute, local regulation or at common law or which thereafter
arise from any matter, fact, circumstance, event, happening or thing whatsoever
occurring or failing to occur prior to the date of this Release Agreement
involving Cotroneo's employment by HRB or any Affiliate, including, without
limitation, Cotroneo's hiring, compensation earned as of or before the date of
this Release Agreement, the termination of Cotroneo's responsibilities as an
officer of Block and as a director and/or officer of HRB and each Affiliate,
Cotroneo's termination as an employee of HRB, other obligations of Block, HRB or
any Affiliate (except for those obligations expressly stated in this Release
Agreement, the post-termination provisions of the Employment Agreement or
applicable benefit plans), and further including, but not limited to, any claims
for race, sex or age discrimination under the Age Discrimination in Employment
Act, as amended ("ADEA"), Title VII of the Civil Rights Act of 1964, the 1991
amendments of such Civil Rights Act, the Americans with Disabilities Act, as
amended, and all other federal and state statutes and common law doctrines.
2. Release by HRB.
(a) Except as provided in Section 2(b) of this Release Agreement, HRB
for itself and for its present and past directors, officers, employees,
predecessors, successors, assigns and Affiliates hereby unconditionally releases
and forever discharges Cotroneo, his relations, assigns, heirs, legal
representatives, of and from any and all claims, demands, actions, causes of
action and suits of any kind whatsoever, whether under federal or state statute,
local regulation or at common law or which thereafter arise from any matter,
fact, circumstance, event, happening or thing whatsoever occurring or failing to
occur prior to the date of this
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Release Agreement involving Cotroneo's employment by HRB or any Affiliate, and
the performance of his responsibilities under the Employment Agreement.
(b) The release described in Section 2(a) of this Release Agreement
does not include a release of (i) Cotroneo's obligations under that certain
letter dated March 31, 2003, addressed to James H. Ingraham attached hereto as
Exhibit I, and (ii) any claims, demands, actions, causes of action and suits of
any kind whatsoever involving acts of fraud, or embezzlement, whether known or
unknown as of the date of this Release Agreement. The Company expressly
represents that it has no knowledge or belief at this time that Cotroneo engaged
in any such conduct.
3. Consideration of Release of ADEA Claims. With regard to the
waiver/release of rights or claims under the ADEA, Cotroneo acknowledges and
understands that this is a legal document and that he is legally entitled to,
and has been offered, a period of twenty-one (21) days (the "Consideration
Period") to consider the waiver/release of such rights or claims under this
Release Agreement before signing it. After signing this Release Agreement,
Cotroneo may revoke the waiver/release of rights or claims under the ADEA by
giving written notice ("Revocation Notice") to Mark A. Ernst, 4400 Main Street,
Kansas City, Missouri 64111, within seven (7) days after the date of signing
(such seven (7) day period, the "Revocation Period" and such date of signing,
the "Signing Date"). For such revocation to be effective, the Revocation Notice
must be received no later than 5:00 p.m., Kansas City, Missouri time, on the
seventh (7th) day after the Signing Date. If Cotroneo provides the Revocation
Notice to HRB, this Release Agreement will be null, void and unenforceable by
either party, and HRB will have no obligation to make any payments or provide
any benefits to Cotroneo hereunder.
4. Acknowledgements. COTRONEO ALSO ACKNOWLEDGES THAT HRB HAS ADVISED
HIM TO CONSULT WITH AN ATTORNEY PRIOR TO SIGNING THIS RELEASE AGREEMENT OR
BEFORE THE EXPIRATION OF THE REVOCATION PERIOD. COTRONEO SPECIFICALLY
ACKNOWLEDGES AND AGREES THAT EITHER THE FULL TWENTY-ONE (21) DAY CONSIDERATION
PERIOD HAS LAPSED OR HE HAS BEEN OFFERED SUCH TWENTY-ONE (21) DAY CONSIDERATION
PERIOD BUT HAS ELECTED TO WAIVE AND FOREGO ALL OF THE APPLICABLE DAYS WHICH HAVE
NOT YET LAPSED IN SUCH TWENTY-ONE (21) DAY CONSIDERATION PERIOD. COTRONEO
ACKNOWLEDGES AND AGREES THAT UPON SUCH CONSIDERATION HE HAS DECIDED TO WAIVE AND
RELEASE ANY CLAIMS HE MAY HAVE UNDER THE ADEA, PURSUANT TO THE TERMS OF THIS
RELEASE AGREEMENT.
5. Compensation and Benefits. The parties agree that Cotroneo will
receive the compensation and benefits from HRB after the Termination Date
provided for in Sections 4 (a) and (if) of the Termination Agreement.
6. Termination of Compensation and Benefits. The compensation and
benefits described in Section 4 of the Termination Agreement will cease and no
further compensation and benefits will be provided to Cotroneo under this
Release Agreement if Cotroneo knowingly violates any of his obligations under
Sections 2 and 6 of the Termination Agreement. If Cotroneo unknowingly violates
any of his obligations under Sections 2 and 6 of the Termination Agreement,
Cotroneo agrees to take such actions as are necessary to correct the
violation(s) once he is made aware of the violation(s).
7. This Release Agreement shall not affect the rights and obligations
of the parties under the Termination Agreement.
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8. Successors and Assigns. This Release Agreement and each of its
provisions will be binding upon Cotroneo and the heirs, executors, successors,
and administrators of Cotroneo or his estate and property, and shall inure to
the benefit of HRB, Block and their successors and assigns. Cotroneo may not
assign or transfer to others the obligation to perform his duties hereunder.
Executed as a sealed instrument under, and to be governed by, construed and
enforced in accordance with, the laws of the State of Missouri.
-----------------------------------------
Frank J. Cotroneo
Dated:
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HRB Management, Inc.
a Missouri corporation
By:
-------------------------------------
Mark A. Ernst
President and Chief Executive Officer
Dated:
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EXHIBIT I
James H. Ingraham
Senior Vice President and General Counsel
H&R Block, Inc.
4400 Main Street
Kansas City, MO 64111
Re: Undertaking
Dear Mr. Ingraham:
I understand that the Board of Directors of H&R Block, Inc. (the "Company") has
determined to indemnify me, to the fullest extent permissible under Missouri law
and the Company's Bylaws, in connection with the recently-filed securities class
action naming me as a co-defendant, including White v. H&R Block, Inc. et al,
Smith v. H&R Block, Inc. et al, Rodney v. H&R Block, Inc., et al, McCormack v.
H&R Block, Inc. et al, and any other related case (collectively, the "RAL
Disclosure Litigation"). I also understand that the Company will pay, on my
behalf and as they accrue, all expenses incurred in defending the RAL Disclosure
Litigation prior to its final disposition.
I hereby undertake to repay such amounts advanced by the Company on my behalf
unless it shall ultimately be determined (whether by the Board of Directors or
otherwise) that I am entitled to be indemnified because I acted in good faith
and in a manner I reasonably believed to be in, or not opposed, to the best
interests of the Company.
Very truly yours,
/s/ FRANK J. COTRONEO
---------------------
Frank J. Cotroneo
Dated: 3/31/03
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EXHIBIT C
OPTIONEE STATEMENT H&R BLOCK. INC.
EXERCISABLE AS OF 9/3/2003
FRANK J. COTRONEO
OPTIONS OPTIONS/DATE
GRANT EXPIRATION GRANT GRANTED OR OPTION TRANSFERRED OPTIONS OPTIONS
DATE DATE PLAN ID TYPE TRANSFERRED TO PRICE OUT OUTSTANDING EXERCISABLE
----- ---------- ------- ---- -------------- ------ ------------ ----------- -----------
2/21/2000 2/21/2010 84 1 Incentive 14,856 $20.1875 14,856 14,856 CURRENT
2/21/2000 2/21/2010 84 1 Non-Qualified 25,144 $20.1875 25,144 25,14 CURRENT
6/30/2000 6/30/2010 84 1 Incentive 1 $16.1875 1 1 CURRENT
6/30/2000 6/30/2010 84 1 Non-Qualified 69,999 $16.1875 23,333 23,333 CURRENT
6/30/2001 6/30/2011 84 1 Incentive 3,098 $32.2750 3,098 0 CURRENT
3,098 on 06/30/2006
6/30/2001 6/30/2011 84 1 Non-Qualified 66,902 $32.2750 43,570 0 CURRENT
23,334 on 06/30/2005
20,236 on 06/30/2006
6/30/2002 6/30/2012 84 1 Incentive 4,332 $46.1500 4,332 0 CURRENT
2,166 on 06/30/2004
2,166 on 06/30/2005
6/30/2002 6/30/2012 84 1 Non-Qualified 50,668 $46.1500 50,638 0 CURRENT
16,171 on 06/30/2004
16,165 on 06/30/2005
18,332 on 06/30/2006
6/30/2003 6/30/2013 84 1 Non-Qualified 45,000 $43.2500 45,000 0 CURRENT
15,000 on 06/30/2004
15,000 on 06/30/2005
16,000 on 06/30/2008
Optionee Totals 280,000 210,002 63,334
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EXHIBIT D
REFERENCE LETTER
To Whom It May Concern:
Frank Cotroneo was Senior Vice-President and Chief Financial Officer of
H&R Block from February 21, 2000 to October 31, 2003. During his tenure, Mr.
Cotroneo was an integral member of our management team. Frank left to pursue
other opportunities, and his departure was amicable. We wish him well.
Sincerely yours,
Mark A. Ernst