EXHIBIT 10.30
SEPARATION AGREEMENT AND MUTUAL RELEASE
This Separation Agreement and Mutual Release ("Agreement") is entered into
as of April 30, 1997 (the "Effective Date") by and between Access Health, Inc.,
a Delaware corporation (the "Company"), and Xxxxxx X. Xxxxxxx ("Executive").
RECITALS
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1. Executive is currently employed by the Company as its President and
Chief Executive Officer and Chief Operating Officer and also serves as a member
of the Board of Directors;
2. Executive has decided to resign from all executive positions and as a
director of the Company and the Company agrees to accept such resignation. The
Company and Executive have further mutually agreed to terminate their employment
relationship and to release each other from any claims arising from or related
to the employment relationship;
3. Executive and the Company entered into an Employment Agreement dated
December 1, 1996 (the "Prior Agreement"). The parties agree that, for purposes
of the Prior Agreement, the termination of Executive's employment shall be
treated as a termination by the Company without Cause (as defined in the Prior
Agreement). In connection with the termination of their employment
relationship, and to assure an orderly transition, the parties desire to enter
into this Agreement with respect to Executive's separation from the Company.
The Agreement will terminate and supersede the Prior Agreement in all respects
except as otherwise specifically provided or incorporated by reference herein;
to the extent a particular provision of the Prior Agreement is incorporated into
this Agreement, any defined terms referenced in such provision shall also be
incorporated herein.
NOW THEREFORE, in consideration of the mutual promises made herein, the
Company and Executive (collectively referred to as the "Parties") hereby agree
as follows:
1. Resignation. Executive hereby resigns from all executive positions
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with the Company including as President and Chief Executive Officer and Chief
Operating Officer of the Company and also as a director on the Effective Date.
The Executive's employment with the Company shall otherwise be treated as
continuing through April 30, 1997.
2. Consideration. In consideration of Executive's past services to the
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Company, and in consideration for Executive's promises and covenants herein, and
in light of the terms of the Prior Agreement, the Company shall pay Executive,
subject to Section 3 herein, as follows:
(a) Salary. The Company will pay Executive on the Effective Date all
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salary earned through the Effective Date plus salary through April 30, 1997,
less applicable withholding.
(b) Bonus. Executive shall receive on the Effective Date a bonus
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equal to the pro rata annual incentive award through April 30, 1997, for
fiscal year 1997 based on the on-plan target bonus, which the Parties agree
shall be $105,000.
(c) Separation Payment. Executive shall also receive on the Effective
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Date a payment equal to 125% of the sum of (i) his annualized base salary of
$300,000 and (ii) Executive's on-plan target bonus award for fiscal year 1997 of
$180,000, which payment the Parties agree shall be in the aggregate $600,000.
(d) Business Expenses. The Company shall reimburse Executive for all
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business expenses incurred in connection with carrying out the business of the
Company promptly upon receiving backup documentation in reasonable detail
documenting such expenses.
(e) Benefits. Executive shall be entitled to accrued vacation in the
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amount of twenty (20) days which the Company shall pay to Executive on the
Effective Date in the form of a lump sum payment of $23,170. Executive shall
also be entitled to continued coverage, through April 30, 1999 (the "Continued
Coverage Period"), under each Employee Welfare Benefit Plan (as defined in the
Prior Agreement) of the Company in which he was participating as of March 31,
1997, at no increased cost to Executive, provided that the Company's obligations
under this Section 2(e) shall be reduced to the extent Executive receives
similar coverage and benefits under the plans of a subsequent employer.
Executive shall promptly provide the Company with notice and information
reasonably requested by the Company concerning such plans. If Executive or any
member of his family is precluded from continuing full participation in any
benefit under any Employee Welfare Benefit Plan as provided in this Section
2(e), then (as provided in Section 9(h) of the Prior Agreement) the Company
shall provide the after-tax economic equivalent of any benefit forgone. The
economic equivalent of any benefit foregone shall be deemed to be no less than
the total cost to the Executive of obtaining such benefit on an individual
basis. Payment of such after-tax economic equivalent shall be made quarterly in
advance, without discount. After the Continued Coverage Period, the Company
shall make reasonable good faith efforts to secure from its insurance carrier
for Executive and his family continued health insurance coverage until April 30,
2001 to the same extent and at rates similar to those offered to the Company's
employees provided (i) Executive shall bear the entire cost of such coverage,
(ii) the Company shall not be obligated to add Executive or otherwise include
him as part of any of the Company's health plans with such carrier, and (iii)
the Company will not be otherwise obligated to provide or assist Executive
obtain health care benefits if the Company's carrier declines coverage of
Executive.
(f) Lease Payments. The Company shall continue to make prompt payments
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through August 31, 1997 of all lease payments on the property at 0000 Xxxxx
Xxxx, Xxxxxxxxxx, Xxxxxxxxxx, where Executive resides, and Executive may reside
there until August 31, 1997; provided, upon the date Executive relocates from
Sacramento, California Executive shall assign all rights to the lease of such
house to the Company.
(g) Stock Option Grants. No stock options shall be granted to
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Executive for fiscal year 1997 performance.
(h) Restricted Stock. The 2,000 shares of restricted stock granted to
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Executive as of May 30, 1996, shall become fully vested, fully transferable, and
fully nonforfeitable as of the Effective Date.
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(i) Stock Options. Section 6(b), Exhibit B and Exhibit C of the Prior
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Agreement shall survive any termination of the Prior Agreement, and shall remain
in full force and effect, with the following modifications. As to the option
granted on November 18, 1996 to acquire 250,000 shares of Common Stock,
Executive shall have until April 30, 1999 (the "Option Termination Date") to
exercise 100,000 shares, and on the Option Termination Date such option shall
terminate as to 150,000 shares as well as to any unexercised vested shares
subject to such option. As to the option granted on May 30, 1996 to acquire
230,000 shares of Common Stock, Executive shall have until the Option
Termination Date to exercise 92,000 shares, and on the Option Termination Date
such option shall terminate as to 138,000 shares as well as to any unexercised
vested shares subject to such option.
(j) Indemnification. The Indemnification Agreement between the
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Parties, dated as of December 1, 1996 and appended as Exhibit A to this
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Agreement, shall remain in full force and effect.
(k) Tax Gross-Up. The Company shall promptly provide any payment
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required under Section 8(b)(iii) of the Prior Agreement with respect to
expenses incurred prior to the Effective Date.
(l) Out Placement. The Company shall reimburse Executive for
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reasonable out-of-pocket expenses incurred as out-placement expenses incurred
prior to April 30, 1998 (including, without limitation, secretarial
assistance, phone and fax charges, unreimbursed travel expenses, and
transition counseling, but specifically excluding office space expense) for up
to $10,000 promptly upon presentation of reasonably acceptable documentation.
(m) No Mitigation; Limited Offset. As provided in Section 9(i) of the
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Prior Agreement, Executive shall be under no obligation to seek other employment
and there shall be no offset against amounts due Executive under this Agreement
on account of (i) any remuneration or other benefit attributable to any
subsequent employment that he may obtain except as specifically provided in this
Section 2 or (ii) any claims the Company, or its affiliates, may have against
Executive.
(n) Nature of Payments. Any amounts due under this Section 2 are in
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the nature of severance payments considered to be reasonable by the Company
and are not in the nature of a penalty.
3. Forfeiture of Benefits upon Breach. In the event that Executive
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breaches Section 4 of this Agreement (i) all obligations of the Company to make
any payments or provide any benefits under Sections 2(b), 2(c), 2(e), 2(f) and
2(l) shall immediately terminate and Executive shall promptly repay, net of all
taxes paid or payable, any amounts he may have received under these Sections and
(ii) any portion of any stock option that became exercisable solely pursuant to
Section 2(i) hereof shall be forfeited, and in the event that Executive shall
already have exercised any portion of any such stock option that became
exercisable solely pursuant to Section 2(i) hereof, he shall return the Common
Stock of the Company that he acquired on exercise of such stock option, provided
that in lieu of delivering Common Stock pursuant to subsection (ii) hereof,
Executive may deliver cash equal to the current market value (based on the
closing price on the last trading day preceding the date of return) of any such
Common Stock not returned, less sufficient Common Stock of the Company and/or
cash to make him whole (on an after-tax basis) for the cost of acquiring such
Common Stock and for any taxes paid or payable in connection with (A) acquiring
such Common Stock and (B) any subsequent sale or other
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disposition of any portion of such Common Stock occurring before the return of
such Common Stock and/or cash pursuant to this Section 3.
4. Noncompetition. For a period of twelve (12) months following the
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Effective Date, Executive shall be subject to the terms of Section 11(a) of the
Prior Agreement which is expressly incorporated by reference into this
Agreement.
5. Non-Solicitation. For a period of twelve (12) months following the
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Effective Date, Executive shall not intentionally or knowingly allow others
under his direction to solicit or encourage, directly or indirectly, any then
current Company employee to terminate his or her employment with the Company for
the purpose of working as an officer, director, employee, consultant or in any
other capacity for either Executive or any of his employers. For purposes of
the above, an employer of Executive's will be deemed to include (i) any parent,
subsidiary or other affiliate of such an employer or (ii) any person or company
for which Executive provides consulting services or for which he acts in the
capacity of director or for which he acts in any other capacity.
6. Confidentiality. Executive acknowledges that during the course of his
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employment he has had access to a wide range of sensitive, non-public
information concerning the Company, its future business and product plans, its
marketing strategies and its sales organization. Executive acknowledges that
the Proprietary Information and Business Agreement dated December 19, 1996 (the
"Confidentiality Agreement") that he signed in connection with his employment
and that is appended to this Agreement as Exhibit B, shall accordingly remain
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in full force and effect, except that Executive may retain, after review by the
Company, personal Rolodexes, personal files and the like following the
termination of his employment to the extent that the Company does not reasonably
and promptly object, provided such materials shall continue to be subject to the
Confidentiality Agreement. To the extent Executive provides the Company
services, if any, after the Effective Date, Executive shall remain subject to
the Confidentiality Agreement.
7. Payment of Salary. Executive acknowledges and represents that, upon
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full performance of its obligations under this Agreement, the Company will have
paid or made all salary, bonuses, equity grants and any and all other
compensation or benefits due to Executive as of the Effective Date.
8. Release of Claims. The Parties acknowledge and agree that this
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Agreement represents settlement in full of all obligations and claims arising
out of or relating to Executive's employment by the Company and the termination
of such employment as provided in this Agreement. Executive and the Company, on
behalf of themselves, and their respective heirs, executors, officers,
directors, employees, investors, shareholders, administrators, predecessor and
successor corporations, and assigns, hereby fully and forever release each other
and their respective heirs, executors, officers, directors, employees,
investors, shareholders, administrators, predecessor and successor corporations,
and assigns, of and from any claim, duty, obligation or cause of action relating
to any matters of any kind, whether presently known or unknown, suspected or
unsuspected, that any of them may possess arising from any omissions, acts or
facts that have occurred up until and including the Effective Date including,
without limitation,
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(a) any and all claims relating to or arising from Executive's
employment by (or services for) the Company, his employment relationship with
the Company and the termination of that relationship;
(b) any and all claims for wrongful discharge of employment; breach of
contract, both express and implied; breach of a covenant of good faith and fair
dealing, both express and implied; negligent or intentional infliction of
emotional distress; negligent or intentional misrepresentation; negligent or
intentional interference with contract or prospective economic advantage; and
defamation;
(c) any and all claims for violation of any federal, state or
municipal statute, including, but not limited to, Title VII of the Civil
Rights Act of 1964, the Civil Rights Act of 1991, the Age Discrimination in
Employment Act of 1967, the Americans with Disabilities Act of 1990, and the
California Fair Employment and Housing Act;
(d) any and all claims arising out of any other laws and regulations
relating to employment or employment discrimination;
(e) any claims arising out of or related to the Prior Agreement (to
the extent that the Prior Agreement is superseded by this Agreement),
including without limitation, any rights relating to notice of termination as
provided pursuant to Section 9(g) of the Prior Agreement;
(f) any and all claims for attorneys' fees and costs;
(g) all claims arising out of or relating to Executive's conduct as an
employee, officer, director, agent or representative of the Company; and
(h) all claims arising out of or relating to duties owed by
Executive to the Company or to any of its directors, officers, employees,
agents, affiliates, stockholders, lenders, investors, predecessor or successor
corporations, assigns, attorneys, accountants or other representatives.
The Company and Executive agree that the release set forth in this section shall
be and remain in effect in all respects as a complete general release as to the
matters released. This release does not extend to any obligations arising
under, incurred under, or preserved by this Agreement.
9. Acknowledgment of Waiver of Claims under ADEA. Executive acknowledges
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that he is waiving and releasing any rights he may have under the Age
Discrimination in Employment Act of 1967 ("ADEA") and that this waiver and
release is knowing and voluntary. Executive and the Company agree that this
waiver and release does not apply to any rights or claims that may arise under
ADEA after the Effective Date. Executive acknowledges that the consideration
given for this waiver and release is in addition to anything of value to which
Executive was already entitled. Executive further acknowledges that he has been
advised by this writing that (a) he should consult with an attorney prior to
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executing this Agreement; (b) he has at least twenty-one (21) days within which
to consider this Agreement; (c) he has at least seven (7) days following the
execution of this Agreement by the Parties to revoke the Agreement; and (d)
this Agreement shall not be effective until the revocation period has expired.
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10. Civil Code Section 1542. The Parties represent that they are not
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aware of any claim by either of them other than the claims that are released by
this Agreement. Executive and the Company acknowledge that they have been
advised by legal counsel and are familiar with the provisions of California
Civil Code Section 1542, which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR.
Executive and the Company, being aware of said Code section, agree to
expressly waive any rights they may have thereunder, as well as under any other
statute or common law principles of similar effect.
11. Communications. Communications by the Company and its officers,
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directors, employees, stockholders, and successors concerning Executive's
termination of employment with the Company will be based upon the statement
agreed upon by the Parties which is attached hereto as Exhibit C. All
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communications by the Company and its officers, directors, employees,
stockholders, and successors concerning Executive in response to reference
checks will be based upon the response agreed upon by the Parties which is
attached hereto as Exhibit D.
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12. Fees and Expenses. Each of the Parties hereto shall bear their own
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fees and expenses, including attorneys fees, incurred in connection with the
negotiation of this Agreement or otherwise arising out of, or by reason of, this
Agreement.
13. Taxes. All payments to be made by the Company to Executive under this
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Agreement will be subject to reduction to the extent necessary in order to
comply with applicable Federal, state and local tax withholding requirements.
14. Confidentiality. The Parties hereto each agree to use their best
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efforts to maintain in confidence the existence of this Agreement, the contents
and terms of this Agreement, and the consideration for this Agreement, except
where disclosure of the terms of this Agreement is otherwise required by law and
except for disclosure in confidence to financial, tax, and legal advisors and
disclosure by Executive in confidence to prospective employers.
15. Disparagement. Each Party agrees to refrain from any disparagement,
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criticism, defamation, and slander of the other Party, and from tortious
interference with the contracts and relationships of the other Party.
16. No Representations. Each Party represents that it or he has had the
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opportunity to consult with an attorney, and has carefully read and understands
the scope and effect of the provisions of this Agreement. Neither Party has
relied upon any representations or statements made by the other Party hereto
which are not specifically set forth in this Agreement.
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17. Entire Agreement. This Agreement and those portions of the Prior
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Agreement preserved by this Agreement represent the entire agreement and
understanding between the Company and Executive concerning Executive's
separation from the Company, and supersede and replace any and all prior
agreements and understandings concerning Executive's relationship with the
Company and his compensation by the Company, including without limitation, the
Prior Agreement, except as otherwise provided in this Agreement.
18. Assignability; Binding Nature. This Agreement shall be binding upon
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and inure to the benefit of the Parties and their respective successors and
assigns. No rights or obligations of the Company under this Agreement may be
assigned or transferred by the Company except that such rights or obligations
may be assigned or transferred pursuant to a merger or consolidation in which
the Company is not the continuing entity, or the sale or liquidation of all or
substantially all of the assets of the Company, provided that the assignee or
transferee is the successor to all or substantially all of the assets of the
Company and such assignee or transferee expressly assumes all the liabilities,
obligations and duties of the Company, as contained in this Agreement. In
connection with any transfer or assignment of its rights, duties, or obligations
under this Agreement, the Company shall take whatever action it legally can to
cause such assignee or transferee to expressly assume the labilities,
obligations and duties of the Company hereunder. The Company shall, in any
event, remain as unconditional guarantor of prompt payment and prompt
satisfaction of all such liabilities, obligations and duties. No rights,
obligations or duties of the Executive under this Agreement may be assigned or
transferred, other than his rights to compensation and benefits, which may be
transferred only by will or operation of law, except as provided in Section 23
below.
19. Representations. The Company represents and warrants that it is fully
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authorized and empowered by action of the Board to enter into this Agreement and
that the performance of its obligations under this Agreement will not violate
any law, regulation or order of any agreement between it and any other person.
The Executive represents and warrants that he is not subject to any agreement or
obligation that conflicts with or would be breached by the provisions of this
Agreement.
20. Amendment or Waiver. No provision in this Agreement may be amended
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unless such amendment is set forth in a writing signed by the Parties. No
waiver by either Party of any breach of any condition or provision contained in
this Agreement shall be deemed a waiver of a similar or dissimilar condition or
provision at the same or any prior or subsequent time. To be effective, any
waiver must be set forth in writing and signed by the waiving Party.
21. Severability. In the event that any provision or portion of this
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Agreement shall be determined to be invalid or unenforceable for any reason, in
whole or in part, the remainder of this Agreement shall be unaffected thereby
and shall remain in full force and effect to the fullest extent permitted by law
so as to achieve the purposes of this Agreement.
22. Survivorship. Except as otherwise expressly set forth in this
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Agreement, the respective rights and obligations of the Parties hereunder shall
survive the termination of Executive's employment. This Agreement itself (as
distinguished from the Executive's employment) may not be terminated by either
Party.
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23. Beneficiaries/References. The Executive shall be entitled, to the
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extent permitted under any applicable law, to select and change a beneficiary or
beneficiaries to receive any compensation or benefit hereunder following the
Executives's death, by giving written notice to the Company. In the event of
the Executive's death or a judicial determination of his incompetence,
references in this Agreement to the Executive shall be deemed, where
appropriate, to refer to his beneficiary, estate or other legal representative.
24. Resolution of Disputes. Any claim arising out of or relating to this
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Agreement (or any amendment thereof), any provision of the Prior Agreement
incorporated into this Agreement or out of Executive's employment by, or
services for, the Company shall, at the election of either Party, be resolved by
confidential arbitration, to be held in Sacramento County, California, in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association. The arbitrator(s) shall explain the reasons and basis of his
(their) award in detail and in writing, and judgment upon the award may be
entered in any court having jurisdiction thereof. Each Party shall bear their
own respective costs and expenses relating to resolving any such claim. Pending
the final and conclusive resolution of any such claim, the Company shall
continue prompt payment of all amounts due the Executive under this Agreement
(or any amendment thereof) and prompt provision of all benefits to which the
Executive or his successors and assigns are entitled.
25. Notices. Any notice, consent, demand, request, or other communication
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given to a Party in connection with this Agreement shall be in writing and shall
be deemed to have been given (a) when delivered personally to the Party
specified or (b), provided that reasonable steps are take to assure that the
communication is actually received by the Party specified, five business days
after being sent by certified or registered mail, postage prepaid, return
receipt requested, duly addressed to the Party concerned at the address
indicated below or to such changed address as such Party may subsequently give
notice of:
If to the Company:
Access Health, Inc.
00000 Xxxxx Xxxx Xxxx
Xxxxxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
With a copy sent by the same means to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C.
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
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If to the Executive:
Xxxxxx X. Xxxxxxx
0000 Xxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxx 00000
With a copy sent by the same means to:
Law Offices of Xxxxxx X. Xxxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
26. Headings. The headings of the Sections contained in this Agreement
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are for convenience only and shall not be deemed to control or affect the
meaning or construction of any provision of this Agreement.
27. Governing Law. This Agreement shall be governed by the laws of the
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State of California, without reference to its choice of law principles.
28. Counterparts. This Agreement may be executed in counterparts, and
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each counterpart shall have the same force and effect as an original and shall
constitute an effective, binding agreement on the part of each of the
undersigned.
29. Voluntary Execution of Agreement. This Agreement is executed
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voluntarily and without any duress or undue influence on the part or behalf of
the Parties hereto, with the full intent of releasing all claims. The Parties
acknowledge that:
(a) They have read this Agreement;
(b) They have been represented in the preparation, negotiation, and
execution of this Agreement by legal counsel of their own choice or that they
have voluntarily declined to seek such counsel;
(c) They understand the terms and consequences of this Agreement and
of the releases it contains;
(d) They are fully aware of the legal and binding effect of this
Agreement.
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IN WITNESS WHEREOF, the Parties have executed this Agreement on the
respective dates set forth below.
ACCESS HEALTH, INC.
Dated: April __, 1997 By: /s/XXXXX X. XXXXXX
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Dated: April __, 1997 /s/XXXXXX X. XXXXXXX
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Xxxxxx X. Xxxxxxx
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