Exhibit 10.18
SEPARATION AGREEMENT AND GENERAL RELEASE
THIS SEPARATION AGREEMENT AND GENERAL RELEASE ("Agreement") is entered into
by and between Xxxxx X. Xxxxxx, M.D. ("Executive") and XxxxxxxxXxxxxx.xxx, Inc.
(the "Company").
Executive and the Company desire to settle fully any and all matters
between them, including, but not limited to, any matters relating to Executive's
employment with the Company, Executive's Employment, Confidentiality and Non-
Competition Agreement with the Company, dated as of January 5, 2000, a copy of
which is attached hereto and are hereby incorporated in part by reference herein
(collectively "Employment Agreement"), and the termination of Executive's
employment. Therefore, in consideration of the mutual promises set forth herein
and other good and valuable consideration, the receipt and sufficiency of which
is acknowledged, Executive and the Company agree as follows:
1. Termination of Employment. Executive's employment with the Company is
terminated effective August 10, 2000 ("Termination Date"). Executive further
waives and releases any claim that he has or may have to reemployment with the
Company, or any of its subsidiary companies, affiliates, successors or assigns.
2. Employment Agreement. Per the terms of the Employment Agreement, for a
period of one year following the Termination Date (the "Payment Period"), the
Company shall pay to the Executive, in accordance with the Company's regular
payroll schedule, termination payments in the aggregate amount of $240,000, less
(a) applicable taxes, deductions and withholdings and (b) the fair market value
of all furniture, equipment and other property of the company retained by
Executive (such amount to be determined as provided below), to be distributed
bi-monthly during the Payment Period, commencing as of the Termination Date.
Executive agrees to comply with all of his continuing obligations under the
Employment Agreement, including without limitation paragraphs 10, 11, 12 and 15
of the Employment Agreement. The fair market value of all furniture, equipment
and other property of the Company retained by Executive shall be agreed by the
Chief Executive Officer and the Executive within thirty (30) days following the
date of this Agreement.
3. Benefits. During the Payment Period, the Company shall:
(a) To the extent permitted by its then-existing 401(k) Plan, if any,
allow Executive to continue making contributions into such 401(k) Plan, and
make the maximum matching contributions under such 401(k) Plan. To the
extent continued contributions under the Company's 401(k) Plan are not
permitted, the Company will pay to the Executive an amount equal to the
maximum matching contribution under such 401(k) Plan;
(b) Withstanding anything to the contrary in the Executive's stock option
agreement(s) or certificate(s) or in the stock option plan(s) under which
Executive's stock options were granted, (A) all of Executive's stock
options that were granted on or prior to January 5, 2000 (but not any stock
options granted after January 5, 2000) that would have
vested during the Payment Period shall immediately become vested and
exercisable on the Termination Date, (B) an aggregate of 41,696 of the
stock options that were granted to Executive after January 5, 2000 shall
immediately become vested and exercisable on the Termination Date, (C)
Executive shall have the right to exercise any and all vested stock options
at any time not later than 10 years after the date of grant of such stock
options and (D) any unvested stock options shall immediately be canceled as
of the Termination Date. Executive and the Company acknowledge that all of
Executive's options that are affected by clauses (A) and (B) above shall,
notwithstanding anything in the applicable stock option certificate(s) and
related agreement(s) to the contrary, be non-qualified stock options.
Exhibit A attached hereto sets forth a true and complete listing of the
---------
shares of the Company's Class A Common Stock and options exercisable
therefor held by Executive, giving effect to the terms of this Agreement.
Except to the extent modified by the foregoing, Executive agrees that any
and all right to options rights are governed by the stock option
certificate(s) and related agreement(s);
(c) Make available to Executive, subject to the terms and conditions of
the applicable plans, including, without limitation, the eligibility rules,
participation for the Executive and his eligible dependents in the Company-
sponsored employee benefit plans or arrangements available generally to
employees of the Company (but not including stock option, stock purchase or
similar compensatory arrangements), provided that Executive shall be
responsible for any co-pay or premium contributions to the extent Executive
was responsible for such costs prior to the Termination Date.
(d) Subject to Executive's obligations under Sections 2 and 5 of the
Employment Agreement, allow Executive to retain his personal laptop
computer and cell phone at no cost to Executive; provided that the Company
shall not be obligated to reimburse Executive for the maintenance, cost of
cellular phone services, phone calls, Internet access charges or the like.
The Executive will be entitled to continuation coverage under COBRA and the date
of his qualifying event shall be the date on which his Company-sponsored
benefits cease. The payments and benefits shall be in lieu of and discharge any
obligations of the Company to Executive for compensation, wages, benefits,
vacation, pain and suffering, or any other expectation of remuneration or
benefit on the part of Executive, set forth in the Employment Agreement or
otherwise. Other than the obligations set forth in paragraphs 1 and 2,
Executive acknowledges that the Company shall have no other obligations to
Executive under this Agreement or the Employment Agreement. Executive further
agrees not to seek any further compensation or benefits from the Company.
4. No Authority. Except for the expenses incurred by Executive in connection
with Company's business following the Termination Date, which will be reimbursed
by the Company promptly following receipt by the Company of appropriate
documentation that satisfies IRS expense requirements, Executive understands and
agrees that effective on the Termination Date, Executive is no longer authorized
to incur any expenses, obligations, or liabilities on behalf of the Company.
2
5. Return of Company Property. Executive agrees to immediately turn over to
the Company (a) a complete copy of any and all files, memoranda, notes, records,
reports, photographs, drawings, plans, papers, or other documents (whether paper
or electronic), and intellectual property and physical or personal property
(other than referenced in Section 3(d) above), obtained by Executive during the
course of his employment with the Company, or any of its, subsidiary companies,
affiliates, successors or assigns, and that are the property of the Company, or
any of its, subsidiary companies, affiliates, successors or assigns.
6. Complete Release. (a) As a material inducement to the Company to enter
into this Agreement, and per the terms of paragraph 9(a) of the Employment
Agreement, the Executive hereby forever releases and discharges the Company, its
subsidiaries, owners, affiliates, divisions, stockholders, directors, officers,
members, agents, current and former employees, attorneys, related companies,
predecessors, successors and assigns (collectively "Released Parties"), and each
of them, of and from any and all charges, complaints, claims, or liabilities
(including attorneys' fees and costs actually incurred) of any nature
whatsoever, known or unknown, suspected or unsuspected, including, but not
limited to, rights arising out of alleged violations of any contracts, express
or implied, or any state law tort claim, or any federal, state, or other
governmental statute, regulation, or ordinance, including, but not limited to,
claims under Title VII of the Civil Rights Act of 1964 or the Age Discrimination
in Employment Act, 29 U.S.C. (S)(S) 621-634, which Executive now has or claims
to have, or which Executive at any time heretofore had or claimed to have, or
which Executive at any time hereinafter may have or claim to have, against each
or any of the Released Parties; provided, however, Executive specifically does
not release any rights under the Age Discrimination in Employment Act arising
after the Effective Date of this Agreement, any claims to enforce this
Agreement, or any claims which Executive is precluded from waiving by operation
of law.
(b) The Company hereby forever releases and discharges Executive of
and from any and all charges, complaints, claims, or liabilities (including
attorneys' fees and costs actually incurred) of any nature whatsoever, known or
unknown, suspected or unsuspected, including, but not limited to, rights arising
out of alleged violations of any contracts, express or implied, or any state law
tort claim, or any federal, state, or other governmental statute, regulation, or
ordinance, which the Company now has or claims to have, or which the Company at
any time heretofore had or claimed to have against Executive.
7. No Claims. (a) Executive represents that Executive has not filed any
complaints, charges, or lawsuits with any local, state, or federal agency or
court against the Company or any of the Released Parties, that Executive will
not do so at any time based on any claim that arose on or before the execution
of this Agreement, and that if any such agency or court assumes jurisdiction of
any such charge, complaint, or lawsuit against the Company or any of the
Released Parties on behalf of Executive, Executive will request such agency or
court to withdraw from the matter.
(b) The Company represents that it has not filed any complaints,
charges, or lawsuits with any local, state, or federal agency or court against
Executive, that the Company will not do so at any time based on any claim that
arose on or before the execution of this Agreement and of which the Company's
executive officers, or any of them, had actual knowledge on or before the
execution of this Agreement, and that if any such agency or court assumes
jurisdiction of any
3
such charge, complaint, or lawsuit against Executive on behalf of the Company,
the Company will request such agency or court to withdraw from the matter.
8. Confidentiality. In addition to the obligations set forth in paragraph 10
of his Employment Agreement, Executive agrees that Executive has maintained and
will continue to maintain as confidential any and all proprietary, confidential
and trade secret information belonging to the Company, or any of its parent
companies, subsidiary companies, affiliates, successors or assigns, including,
but not limited to, any plans, strategies, marketing and sales information,
customer information, cost and pricing information, employee information,
financial information, designs, programs, or any other information that may not
be generally known in the industry.
9. Consultation with Counsel. Executive agrees that Executive fully
understands Executive's right to discuss all aspects of this Agreement with
Executive's attorney, that Executive has carefully read and fully understands
all the provisions of this Agreement, and that Executive is knowingly and
voluntarily entering into this Agreement.
10. No Representations. Executive represents and acknowledges that, in signing
this Agreement, Executive does not rely, and has not relied, upon any
representation or statement made by any of the Released Parties or by any of the
Released Parties' agents, representatives, or attorneys with regard to the
subject matter, basis, or effect of this Agreement or otherwise.
11. Acceptance and Revocation. This Agreement was presented to Executive for
review and consideration on April 1, 2001 ("Review Date"). Executive understands
that Executive has forty-five (45) days from the Review Date within which to
decide whether to execute this Agreement and return it to the Company. If
Executive does not return this Agreement to the Company fully executed within
forty-five (45) of the Review Date, any offer implied by the representation of
this Agreement for Executive's review and consideration is withdrawn in its
entirety at that time. Executive further understands that Executive has seven
(7) days after execution of this Agreement within which to provide the Company
with written notice of revocation of this Agreement ("Revocation Period"). If
said written notice of revocation is not received by the Company by the close of
business on the seventh day following Executive's signing of this Agreement,
Executive agrees that this Agreement shall be final, binding, and irrevocable.
The executed copy of this Agreement and/or any written notices should be
provided to:
XxxxxxxxXxxxxx.xxx, Inc.
0000 Xxx-Xxxxx Xxxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attn: Chief Financial Officer
12. Effective Date. This Agreement shall not become effective in any respect
until the Revocation Period has expired without notice of revocation. In the
absence of Executive's revocation of this Agreement, the eighth day after
Executive's signing of this Agreement shall be the "Effective Date" of this
Agreement.
4
13. Non-Disparagement. Executive agrees not to make any disparaging or
negative comments to any third party regarding the Company or any of the
Released Parties. The Company's executive officers (limited to President, CFO
and CIO) and directors ( limited to Xxxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxx
Xxxxxxxxxx, Xxxx Xxxxx, Xxxx Xxxxxx, Xxx Xxxxxxxx, and Xxxx Xxxxxxx) agree not
to make any disparaging or negative comments to any third party regarding the
Executive; provided, however, that nothing in this Section 14 shall prevent the
Company from taking any action it deems necessary, desirable or appropriate with
respect to any charge, compliant or claim it or any of the Released Parties may
have against Executive of which the Company's executive officers did not have
actual knowledge on the date of this Agreement.
14. No Admissions. This Agreement shall not in any way be construed as an
admission by the Company or Executive that it has acted wrongfully or breached
any agreement with respect to the other party or any other person, or an
admission of any acts of discrimination whatsoever against the other party, and
the Company and Executive each specifically disclaims any liability to or
discrimination against the other party, on the part of itself, and, in the case
of the Company, its employees, its agents or its affiliates.
15. Insurance. The Company represents that to the extent it maintains its
director and officer insurance coverage, Executive will continue to be covered
thereunder for the period prior to the Termination Date during which he was an
officer of the Company to the same extent currently covered thereby, subject to
the conditions thereof.
16. Executive Breach. Executive and the Company each agrees that, in the event
it breaches any provision of this Agreement, it agrees to indemnify the other
party and, with respect to the Company, the Released Parties, against all
liability, costs and expenses, including reasonable attorney's fees, and, in the
case of a breach by Executive, Executive will reimburse the Company for all
payments and benefits paid to Executive pursuant to this Agreement.
17. Sole and Entire Agreement. The Agreement, including the Employment
Agreement and its obligations set forth in its Paragraphs 10, 11, 12 and 15,
constitutes the entire agreement of the parties, and fully supersedes any and
all prior and contemporaneous agreements or understandings between the parties.
To the extent that any provision of this Agreement conflicts with or contradicts
any provision of the Employment Agreement, this Agreement shall be controlling.
This Agreement may be amended or modified only by an agreement in writing and
signed by both parties.
18. Governing Law. This Agreement shall be in all respects interpreted,
enforced and governed by and under the laws of the State of Illinois, without
regard to the principles of conflicts thereof.
19. Severability. The provisions of this Agreement are severable, and if any
part of it is found to be unenforceable, the other paragraphs shall remain fully
valid and enforceable.
20. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed to be an original, and all of which together shall
constitute one and the same instrument.
5
PLEASE READ AND CONSIDER THIS AGREEMENT CAREFULLY BEFORE SIGNING IT. THIS
SEPARATION AGREEMENT AND GENERAL RELEASE INCLUDES A RELEASE OF ALL KNOWN AND
UNKNOWN CLAIMS.
Signature: /s/ Xxxxx Xxxxxx
---------------------------------
Name: Xxxxx Xxxxxx
-------------------------------------
Date: April 8, 2001
-------------------------------------
Witnessed:________________
Name:_____________________
Date:_____________________
XXXXXXXXXXXXXX.XXX, INC.
By: C. Xxx Xxxxx
---------------------------------------
Name: C. Xxx Xxxxx
-------------------------------------
Title: Chairman and Chief Executive Officer
------------------------------------
Date: April 12, 2001
-------------------------------------
EXHIBIT A
Share Ownership
---------------
Xxxxx X. Xxxxxx & Xxxxxxx X. Xxxxxx,
Tenants in the Entirety 60,452 shares
Xxxxx X. Xxxxxx 793 shares
Grantor Retained Annuity Trust,
Xxxxx Xxxxxx, Trustee 33,950 shares
-------------
95,195 shares
=============
Option Status
-------------
125,090 shares at $7.99 per share
8,339 shares at $28.78 per share
33,357 shares at $179.87 per share
36,587 shares (ISO) at $10.00 per share
5,109 shares (NQ) at $10.00 per share
---------------------------------------
208,482 shares
==============
