SEPARATION OF EMPLOYMENT AGREEMENT
AND GENERAL RELEASE
THIS SEPARATION OF EMPLOYMENT AGREEMENT AND GENERAL RELEASE (the Agreement) is made as of this 21st day of September, 2007 by and between PharMerica Corporation (the Company) and Mark McCullough (the Executive).
WHEREAS, Executive formerly was employed as Executive Vice President and Chief Operating Officer;
WHEREAS, Executive and Company entered into an Employment Agreement, dated July 11, 2007, (the Employment Agreement) which provides for certain severance benefits in the event that Executives employment is terminated on account of a reason set forth in the Employment Agreement;
WHEREAS, Executive and the Company mutually desire to terminate Executives employment on an amicable basis, such termination to be effective September 21, 2007 (the Date of Resignation); and
WHEREAS, in connection with the Executives resignation of employment, the parties have agreed to a separation package and the resolution of any and all disputes between them.
NOW, THEREFORE, IT IS HEREBY AGREED by and between Executive and the Company as follows:
1. (a) Executive, for and in consideration of the commitments of the Company as set forth in Paragraph 5 of this Agreement, to which Executive acknowledges he is not otherwise entitled, and intending to be legally bound, does hereby REMISE, RELEASE AND FOREVER DISCHARGE the Company, its affiliates, subsidiaries and parents, and its officers, directors, employees, and agents, and its and their respective successors and assigns, heirs, executors, and administrators (each, a Releasee and collectively, Releasees) from all causes of action, suits, debts, claims and demands whatsoever in law or in equity, which Executive ever had, now has, or hereafter may have, whether known or unknown, or which Executives heirs, executors, or administrators may have, by reason of any matter, cause or thing whatsoever, from the beginning of Executives employment to the date of this Agreement, and particularly, but without limitation of the foregoing general terms, any claims arising from or relating in any way to Executives employment relationship with the Company and/or its predecessors, subsidiaries or affiliates, the terms and conditions of that employment relationship, and the termination of that employment relationship, including, but not limited to, any claims arising under the Age Discrimination in Employment Act, the Older Workers Benefit Protection Act (OWBPA), Title VII of The Civil Rights Act of 1964, the Americans with Disabilities Act, the Family and Medical Leave Act of 1993, the Employee Retirement Income Security Act of 1974, the Kentucky Civil Rights Act, any claims for wages, bonuses, stock options, restricted stock or awards, or any other compensation, and any other claims under any federal, state or local common law, statutory, or regulatory provision, now or hereafter recognized, and any claims for attorneys fees and costs. This Agreement is effective without regard to the legal nature of the claims raised and without regard to whether any such claims are based upon tort, equity, implied or express contract or discrimination of any sort.
(b) To the fullest extent permitted by law, and subject to the provisions of Paragraph 10 below, Executive represents and affirms that (i) Executive has not filed or caused to be filed on Executives behalf any claim for relief against the Company or any Releasee and, to the best of
Executives knowledge and belief, no outstanding claims for relief have been filed or asserted against the Company or any Releasee on Executives behalf; (ii) Executive has not reported any improper, unethical or illegal conduct or activities to any supervisor, manager, department head, human resources representative, agent or other representative of the Company, to any member of the Companys legal or compliance departments, or to the ethics hotline, and has no knowledge of any such improper, unethical or illegal conduct or activities; and (iii) Executive will not file, commence, prosecute or participate in any judicial or arbitral action or proceeding against the Company or any Releasee based upon or arising out of any act, omission, transaction, occurrence, contract, claim or event existing or occurring on or before the date of this Agreement.
(c) Nothing in the Agreement will be deemed to release the Company from (i) claims solely to enforce this Agreement, (ii) claims for indemnification under the Companys By-Laws, or (iii) claims for payment or reimbursement pursuant to any employee benefit plan, policy or arrangement of the Company.
2. Notwithstanding anything in this Agreement to the contrary, in consideration of the Companys agreements as set forth in Paragraph 5 herein, Executive agrees that he continues to be bound by all the terms and conditions set forth in Section 8 of the Employment Agreement, entitled Confidential Information, Non-Solicitation and Non-Competition, provided that all references in clause (b) of Section 8 to eighteen months shall be amended to fifteen months. Executive hereby resigns as an officer and director of all direct and indirect subsidiaries of the Company.
3. Executive agrees and recognizes that Executive has permanently and irrevocably severed Executives employment relationship with the Company, that Executive shall not seek employment with the Company or any affiliated entity at any time in the future, and that the Company has no obligation to employ Executive in the future.
4. Executive further agrees that Executive will not disparage or subvert the Company, or make any statement reflecting negatively on the Company, its affiliated corporations or entities, or any of their officers, directors, employees, agents or representatives, including, but not limited to, any matters relating to the operation or management of the Company, Executives employment and the termination of Executives employment, irrespective of the truthfulness or falsity of such statement. The Company agrees that none of its officers, directors, employees, agents or representatives will disparage or subvert the Executive, or make any statement reflecting negatively on the Executive, including, but not limited to, any matters relating to the Executives performance or the termination of Executives employment, irrespective of the truthfulness or falsity of such statement.
5. In consideration for Executives agreement as set forth herein, the Company agrees that the Company shall provide the following:
(a) A severance payment, in the total amount of $450,000, less all applicable deductions and withholdings, paid in fifteen (15) equal monthly installments, commencing on October 1, 2007
(b) for the eighteen (18) month period following the Date of Resignation, Executive will receive waiver of the applicable premium otherwise payable for COBRA continuation coverage for Executive, his spouse and eligible dependents (to the extent covered on the Date of Resignation) for health, prescription, dental and vision benefits; provided, however, that to the extent COBRA continuation coverage eligibility expires (unless such expiration is due to eligibility for other group health insurance or Medicare) before the end of such eighteen month period, Executive will receive payment, on an after-tax basis, of an amount equal to the premium
the Company would have otherwise waived for COBRA coverage. The obligations of the Company to provide benefits under this Section 5(b) shall terminate on the date of occurrence of the first to occur of any of the following, if any of the following should occur prior to the end of the eighteen (18) month period: (i) the date of commencement of eligibility of Executive under the group health plan of any other employer or (ii) the date of commencement of eligibility of Executive for Medicare benefits.
(c) The Company will maintain, for no less than six years following the Date of Resignation, directors and officers liability insurance covering the Executives potential liability in connection with his employment by the Company in amounts and on terms that are commensurate with the coverage provided to its active officers and directors of the Company.
6. Executive understands and agrees that the payments, benefits and agreements provided in this Agreement are being provided to Executive in consideration for Executives acceptance and execution of, and in reliance upon Executives representations and acknowledgements in, this Agreement. Executive acknowledges that if Executive had not executed this Agreement containing a release of all claims against the Company, Executive would only have been entitled to the payments provided in the Companys standard severance pay plan for employees.
7. Executive acknowledges and agrees that the Company previously has satisfied any and all obligations owed to Executive under any employment agreement or offer letter Executive has with the Company including any entitlement to wages, bonuses, stock options, restricted stock or grants, or other compensation of any kind and, further, that this Agreement supersedes any employment agreement or offer letter Executive has with the Company. Except as set forth expressly herein, no promises, representations or agreements have been made to Executive in connection with the termination of Executives Employment Agreement or offer letter with the Company, or the terms of this Agreement. Notwthstanding anything in this Agreement to the contrary, the terms and conditions set forth in Section 8 of the Employment Agreement ( except as modified by Section 2 of this Agreement), entitled Confidential Information, Non-Solicitation and Non-Competition, shall remain in full force and effect.
8. Executive agrees not to disclose the terms of this Agreement to anyone, except Executives spouse, attorney and, as necessary, tax/financial advisor. Likewise, the Company agrees that the terms of this Agreement will not be disclosed except as may be necessary to obtain approval or authorization to fulfill its obligations hereunder or as required by law. It is expressly understood that any violation of the confidentiality obligation imposed hereunder constitutes a material breach of this Agreement.
9. Executive represents that Executive does not presently have in Executives possession any records and business documents, whether on computer or hard copy, and other materials (including but not limited to computer disks and tapes, computer programs and software, office keys, correspondence, files, customer lists, technical information, customer information, pricing information, business strategies and plans, sales records and all copies thereof) (collectively, the Corporate Records) provided by the Company and/or its predecessors, subsidiaries or affiliates or obtained as a result of Executives prior employment with the Company and/or its predecessors, subsidiaries or affiliates, or created by Executive while employed by or rendering services to the Company and/or its predecessors, subsidiaries or affiliates. Executive acknowledges that all such Corporate Records are the property of the Company. In addition, Executive shall promptly return in good condition any and all beepers, credit cards, cellular telephone equipment, business cards and computers. As of the Date of Resignation, the Company will make arrangements to remove, terminate or transfer any and all business communication lines including network access, cellular phone, fax line and other business numbers.
10. Nothing in this Agreement shall prohibit or restrict Executive from: (i) making any disclosure of information required by law; (ii) providing information to, or testifying or otherwise assisting in any investigation or proceeding brought by, any federal regulatory or law enforcement agency or legislative body, any self-regulatory organization, or the Companys General Counsel or Human Resources Director; or (iii) filing, testifying, participating in or otherwise assisting in a proceeding relating to an alleged violation of any federal, state or municipal law relating to fraud, or any rule or regulation of the Securities and Exchange Commission or any self-regulatory organization.
11. The parties agree and acknowledge that the agreement by the Company described herein, and the settlement and termination of any asserted or unasserted claims against the Releasees, are not and shall not be construed to be an admission of any violation of any federal, state or local statute or regulation, or of any duty owed by any of the Releasees to Executive.
12. Executive agrees and recognizes that should Executive breach any of the obligations or covenants set forth in this Agreement, the Company will have no further obligation to provide Executive with the consideration set forth herein, and will have the right to seek repayment of all consideration paid up to the time of any such breach. Further, Executive acknowledges in the event of a breach of this Agreement, Releasees may seek any and all appropriate relief for any such breach, including equitable relief and/or money damages, attorneys fees and costs.
13. Executive further agrees that the Company shall be entitled to preliminary and permanent injunctive relief, without the necessity of proving actual damages, as well as to an equitable accounting of all earnings, profits and other benefits arising from any violations of this Agreement, which rights shall be cumulative and in addition to any other rights or remedies to which the Company may be entitled.
14. This Agreement and the obligations of the parties hereunder shall be construed, interpreted and enforced in accordance with the laws of the State of Kentucky.
|15.||Executive certifies and acknowledges as follows:|
(a) That Executive has read the terms of this Agreement, and that Executive understands its terms and effects, including the fact that Executive has agreed to RELEASE AND FOREVER DISCHARGE the Company and each and everyone of its affiliated entities from any legal action arising out of Executives employment relationship with the Company and the termination of that employment relationship;
(b) That Executive has signed this Agreement voluntarily and knowingly in exchange for the consideration described herein to which Executive acknowledges he is not otherwise entitled, and that Executive acknowledges is adequate and satisfactory to Executive;
(c) That Executive has been and is hereby advised in writing to consult with an attorney prior to signing this Agreement;
(d) That Executive does not waive rights or claims that may arise after the date this Agreement is executed;
(e) That the Company has provided Executive with a period of twenty-one (21) days within which to consider this Agreement, and that Executive has signed on the date indicated below after concluding that this Agreement is satisfactory to Executive; and
(f) Executive acknowledges that this Agreement may be revoked by Executive within seven (7) days after execution, and it shall not become effective until the expiration of such seven day revocation period. Notice of Revocation will he provided by hand delivery to Thomas A. Caneris, General Counsel, PharMerica Corporation, 1901 Campus Place, Louisville , Kentucky. In the event of a timely revocation by Executive, this Agreement will be deemed null and void and the Company will have no obligations hereunder.
[SIGNATURE PAGE FOLLOWS]
Intending to be legally bound hereby, Executive and the Company executed the foregoing Separation of Employment Agreement and General Release this 21st day of September, 2007.
|Witness:||/s/ Maria Cleary|
|By:||/s/ Thomas Caneris||Witness:||/s/ Mary Jane Hall|
|Title:||Senior Vice-President, General Counsel and Secretary|