Release Agreement - RSM McGladrey Inc. and Thomas G. Rotherham
RELEASE AGREEMENT
THIS RELEASE AGREEMENT ("this Release Agreement") is entered into as of
the 1st day of August, 2003, by and between RSM McGladrey, Inc., a Delaware
corporation ("RSM"), and Thomas G. Rotherham ("Rotherham").
WHEREAS, RSM and Rotherham are parties to an Agreement dated as of July
15, 2003, under which the parties mutually agreed to terminate the Employment
Agreement dated August 2, 1999, by and between RSM and Rotherham (the
"Employment Agreement"), and Rotherham'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
parties agree as follows:
1. Release by Rotherham. In consideration of RSM's promise to Rotherham
of the compensation and benefits specified in Section 4 of this Release
Agreement, Rotherham for himself and for his relations, heirs, legal
representatives, and assigns unconditionally releases and forever discharges RSM
and its direct and indirect parents, subsidiaries and affiliates (collectively,
"Affiliates"), 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 Rotherham's employment by RSM or any Affiliate, including,
without limitation, Rotherham's hiring, compensation earned as of or before the
date of this Release Agreement, the termination of Rotherham's responsibilities
as an officer of RSM and as a director and/or officer of each Affiliate,
Rotherham's termination as an employee of RSM, other obligations of RSM 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. Consideration of Release of ADEA Claims. With regard to the
waiver/release of rights or claims under the ADEA, Rotherham 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,
Rotherham 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.,
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Kansas City, Missouri time, on the seventh (7th) day after the Signing Date. If
Rotherham provides the Revocation Notice to RSM, this Agreement will be null,
void and unenforceable by either party, and RSM will have no obligation to make
any payments or provide any benefits to Rotherham hereunder.
3. Acknowledgements. ROTHERHAM ACKNOWLEDGES THAT RSM HAS ADVISED HIM TO
CONSULT WITH AN ATTORNEY PRIOR TO SIGNING THIS RELEASE AGREEMENT OR BEFORE THE
EXPIRATION OF THE REVOCATION PERIOD. ROTHERHAM 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. ROTHERHAM 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.
4. Compensation and Benefits. The parties agree that Rotherham will
receive compensation and benefits from RSM after the Termination Date as
follows:
(i) RSM will pay to Rotherham $600,000 over the 12-month period
beginning on the Termination Date in semi-monthly equal installments of $25,000
(less required tax withholdings). Such payments encompass payment to Rotherham
for any unused vacation or other paid time off accrued as of the Termination
Date.
(ii) Rotherham will remain eligible to participate in those health and
welfare plans maintained by RSM offering medical, dental, vision, employee
assistance, flexible spending account, life insurance, and accidental death and
dismemberment insurance benefits during the 12-month period beginning on the
Termination Date on the same basis as employees of RSM.
(iii) Those portions of any outstanding incentive stock options and
nonqualified stock options to purchase shares of Block's common stock granted to
Rotherham by Block ("Stock Options") that are scheduled to vest between the
Termination Date and February 1, 2005 (based solely on the time-specific vesting
schedule included in the applicable stock option agreement), shall vest and
become exercisable as of the Termination Date. Rotherham shall have until
November 1, 2004 to exercise such Stock Options. The operation of this Section
4(a)(iii) is subject to Rotherham's execution of an amendment to the affected
stock option agreements in the form attached hereto as Exhibit I.
(iv) RSM will arrange for Right Management Consultants to provide
outplacement services to Rotherham for the 12-month period beginning on the
Termination Date.
(v) Rotherham may retain that certain Compaq laptop computer owned by
RSM that Rotherham presently uses for business purposes, provided that on the
Termination Date RSM verifies that all information, documents, and files
pertaining to the business of Block, RSM, or any Affiliate, including, but not
limited to, e-mails, are deleted from the computer's hard drive and are not
recoverable. Rotherham must return all other property of Block, RSM, and
Affiliates on or before the Termination Date.
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(vi) RSM will prepare Rotherham's federal and state income tax returns
for the 2003 tax year at no charge to Rotherham.
5. Termination of Compensation and Benefits. The compensation and
benefits described in Section 4 of this Release Agreement will cease and no
further compensation and benefits will be provided to Rotherham under this
Release Agreement if (a) Rotherham violates his obligations under Section 5 of
the Termination Agreement or any of the post-employment obligations under
Sections 6 and 7 of the Employment Agreement (except Section 6.2 of the
Employment Agreement, which is superseded by Sections 5(b), 5(c), and 5(d) of
the Termination Agreement), or (b) RSM agrees to waive any of such obligations
pursuant to and in accordance with Section 5(g) of the Termination Agreement.
6. Successors and Assigns. This Release Agreement and each of its
provisions will be binding upon Rotherham and the heirs, executors, successors,
and administrators of Rotherham or his estate and property, and shall inure to
the benefit of RSM, Block and their successors and assigns. Rotherham may not
assign or transfer to others the obligation to perform his duties hereunder.
7. Binding Effect. This Agreement is effective only when executed by an
officer of RSM and approved in writing by the Chairman of the Board, President
and Chief Executive Officer of Block.
Executed as a sealed instrument under, and to be governed by, construed and
enforced in accordance with, the laws of the State of Missouri.
ROTHERHAM:
Dated: 8/1/2003 /s/ Thomas G. Rotherham
-------------------------- -----------------------------------
Thomas G. Rotherham
Accepted and Agreed:
RSM McGladrey, Inc.
a Delaware corporation
By: /s/ Bret G. Wilson
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Bret G. Wilson, Vice President
Dated: 8/04/03
----------------------------
Approved:
H&R Block, Inc.
a Missouri corporation
By: /s/ Mark A. Ernst
-------------------------------------------------------------
Mark A. Ernst
Chairman of the Board, President and Chief Executive Officer
Dated: 4 Aug. 03
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EXHIBIT I
H&R BLOCK, INC.
1993 LONG-TERM EXECUTIVE COMPENSATION PLAN
AMENDMENT TO STOCK OPTION AGREEMENT(S)
WHEREAS, H&R Block, Inc. (the "Company") and Thomas G. Rotherham
("Optionee") are parties to one or more Stock Option Agreements under the H&R
Block, Inc. 1993 Long-Term Executive Compensation Plan pursuant to which there
are one or more Stock Options (as such term is defined in such Agreement(s))
outstanding on the date hereof (such one or more Stock Option Agreements to be
referred to herein as the "SOA");
WHEREAS, RSM McGladrey, Inc., an indirect wholly owned subsidiary of
the Company ("RSM"), has entered into an agreement with Optionee under which
Optionee and RSM agree to terminate Optionee's employment (the "Separation
Agreement"); and
WHEREAS, Optionee has executed an agreement under which Optionee
releases all known and potential claims against the Company, RSM, and all other
direct or indirect subsidiaries of the Company (the "Release");
NOW, THEREFORE, subject to the provisions of the Separation Agreement
and the Release, Optionee and the Company agree as follows:
(1) Section 3(a) of each SOA Exhibit is hereby amended to add the following
sentence to the end of such Section:
"Notwithstanding the above, in the event that Optionee and Optionee's
employer sign the agreement presented to Optionee by Optionee's
employer under which Optionee releases all known and potential claims
against the Company, Optionee's employer, and all other subsidiaries of
the Company (the "Release Agreement") and Optionee does not revoke the
Release Agreement during any revocation period described therein (the
"Revocation Period"), this Stock Option shall become exercisable to the
extent provided in the Release Agreement as of the applicable date
specified in the Release Agreement."
(2) Section 3(b) of each SOA Exhibit is hereby amended to add the following
sentence to the end of such Section:
"Notwithstanding the above, in the event that Optionee signs the
Release Agreement and does not revoke the Release Agreement during the
Revocation Period, any shares of Common Stock of the Company identified
in the SOA as subject to an Incentive Stock Option shall become subject
to a Nonqualified Stock Option in lieu of subject to an Incentive Stock
Option, and the Stock Option shall continue and Optionee shall have the
right to exercise such Stock Option during the applicable time period
described in the Release Agreement and to the extent specified in the
Release Agreement."
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(3) Except as modified in this Amendment to Stock Option Agreement(s), the
SOA shall remain in full force and effect in accordance with its terms.
H&R BLOCK, INC.
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(Signature of Optionee)
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(Social Security Number) By
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Mark A. Ernst
------------------------------------ Chairman of the Board, President, and
(Street Address) Chief Executive Officer
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(City, State/Province, Postal Code)
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