EXHIBIT 10.30
RESIGNATION AGREEMENT AND RELEASE
This Resignation Agreement and Release ("Agreement") is made and
entered into as of December 4, 2002 between Radiologix, Inc., a Delaware
corporation ("Radiologix"), and Xxxx X. Xxxxx ("Xxxxx"), an individual residing
in the State of Texas.
RECITAL
The parties desire to set forth all matters regarding Xxxxx'x
resignation from Radiologix, including matters relating to benefits,
compensation, stock options, Xxxxx'x Employment Agreement entered into between
Xxxxx and American Physician Partners, Inc. (now known as Radiologix) on May 28,
1998, as amended on January 1, 1999, July 1, 2000, and February 11, 2002 (the
"Employment Agreement"), and Xxxxx'x assistance with Radiologix's transition to
a new Chief Executive Officer.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual covenants
and agreements set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties agree
as follows:
1. TERMINATION OF DUTIES. Effective December 4, 2002 Xxxxx resigns as
Radiologix's Chairman of the Board of Directors. Effective upon the earlier of
May 31, 2003 or the first date of employment of Radiologix's new Chief Executive
Officer (the "Separation Date"), Xxxxx resigns from all director and officer
positions with Radiologix and its affiliates, including as Chief Executive
Officer of Radiologix. Effective upon the Separation Date, the obligations and
responsibilities of the parties set forth in the Employment Agreement shall
completely terminate, except as provided in this Agreement.
2. TRANSITION OF JOB DUTIES. After the Separation Date, Xxxxx agrees
that he will assist in the transition of his job duties in a diligent,
trustworthy and business-like manner. After the termination of the Consulting
Agreement dated the date hereof between Radiologix and Xxxxx (the "Consulting
Agreement"), Xxxxx also agrees that, even after his job duties have been
successfully transitioned, he will continue to provide information and
assistance to Radiologix upon its reasonable request for a total of ten days.
Xxxxx shall not be compensated for the first five days of assistance. Radiologix
shall compensate him as an independent contractor for the next five days of
assistance at the rate of $1,000 per day for in-person meetings and $500 per day
for meetings held by telephone (other than routine telephone calls). This
assistance includes cooperating with Radiologix in any litigation or
administrative proceedings involving any matters with which he was involved
during his employment with Radiologix. Radiologix shall reimburse Xxxxx for all
reasonable, documented out-of-pocket expenses he shall incur in complying with
this Section 2.
3. XXXXX'X COMPENSATION UNTIL MAY 31, 2003. Xxxxx shall continue to
receive his salary in accordance with Radiologix's regular salary payment
schedule through May 31, 2003, regardless of whether Xxxxx'x last date of
employment is May 31, 2003 or earlier. Xxxxx shall continue to receive his
normal benefits through his Separation Date; provided, however, that in the
event Xxxxx'x Separation Date is prior to May 31, 2003 and Xxxxx elects to
continue his group health benefits in accordance with the Consolidated Omnibus
Budget Reconciliation Act of 1985, as amended ("COBRA"), Radiologix shall pay
the portion of any premiums relating to such COBRA continuation coverage that
Radiologix would otherwise pay if Xxxxx was an active employee through May 31,
2003. Except as otherwise provided in Section 4 of this Agreement, continuation
of Xxxxx'x normal benefits that are not group health benefits shall be offered
past his Separation Date and through May 31, 2003 to the extent continuation of
any such benefit is permitted by the terms and conditions of the applicable
benefit plan or policy. After May 31, 2003, all benefits and perquisites related
to Xxxxx'x employment with Radiologix shall cease, and no further salary, bonus,
benefits, payments, or options shall be due from or paid by Radiologix to Xxxxx,
except as required in this Agreement or otherwise required by COBRA. Xxxxx
hereby waives and relinquishes all claims to further employment, compensation,
benefits, options, or any other type of remuneration from Radiologix, except as
expressly required in this Agreement.
4. 401 (k) BENEFITS. After the Separation Date, Xxxxx shall cease
active participation in any retirement benefits offered by Radiologix and shall
not be entitled to make or receive any further contributions with respect to
such retirement benefits for any period of time after the Separation Date. After
the Separation Date, Radiologix shall provide Xxxxx, under separate cover and in
accordance with Radiologix's standard procedure, the information necessary and
as required by law regarding a distribution and rollover of any vested interest
held by Xxxxx in Radiologix's 401(k) or other retirement plans. Any nonvested
interest held by Xxxxx in Radiologix's 401(k) or other retirement plans shall be
forfeited as of the Separation Date.
5. RETURN OF PROPERTY. Before the Separation Date, Xxxxx shall return
all equipment and property in his possession which belongs to Radiologix,
including all files and programs stored electronically or otherwise, that relate
or refer to Radiologix, all
original and copies of documents, notes, memoranda or any other written
materials that relate or refer to Radiologix, and material that constitutes
"Confidential Information" as defined in the Confidentiality Agreement (as
defined in Section 13 of this Agreement). In addition, Xxxxx agrees to permit
Radiologix to electronically examine all computer equipment that he may have
used in the course of performing his job duties.
6. CONSIDERATION. As additional consideration for the release and
covenants by Xxxxx set forth in this Agreement, Radiologix shall make the
payments to Xxxxx described in this Section. Upon execution of this Agreement,
Radiologix shall pay Xxxxx the sum of One Hundred Twenty-one Thousand Eight
Hundred Seventy and 19/100 Dollars ($121,870.19) payable as wages, less required
state and federal deductions and any other payroll deductions requested by
Xxxxx. On January 2, 2003, Radiologix shall pay Xxxxx the sum of Ninety-nine
Thousand One Hundred Twenty-nine and 81/100 Dollars ($99,129.81) payable as
wages, less required state and federal deductions and any other payroll
deductions requested by Xxxxx. Upon execution by Xxxxx of releases and covenants
on the Separation Date substantially similar to those contained herein,
Radiologix agrees to pay Xxxxx on the Separation Date the sum of Two Hundred
Twenty-one Thousand Dollars ($221,000.00) payable as wages, less required state
and federal deductions and any other payroll deductions requested by Xxxxx.
Xxxxx hereby agrees that he is solely responsible for employee tax obligations,
if any, including, but not limited to, all reporting and payment obligations,
which may arise as a consequence of such payment. Xxxxx hereby agrees to hold
Radiologix and the Released Parties (as defined in Section 9 of this Agreement)
harmless from and against, and agrees to reimburse and indemnify Radiologix and
the Released Parties for, any taxes, penalties, net loss, cost, damage or
expense, including, without limitation, attorneys fees, incurred by Radiologix
or the Released Parties arising out of the tax treatment by Xxxxx on his tax
return(s) of any payments made to Xxxxx pursuant to this Agreement, and/or
arising out of Radiologix's payments to Xxxxx.
7. STOCK OPTIONS. As further consideration to Xxxxx, Radiologix agrees
that Xxxxx shall have until December 31, 2003 to exercise the stock options
granted to him by Radiologix in which he was vested at the Separation Date. The
Parties agree that, after December 31, 2003, all unexercised stock options
granted to Xxxxx shall be null and void and of no further effect. Xxxxx agrees
that all options which have not vested by the Separation Date will be forfeited
as of that date.
8. ACCRUED VACATION. On the Separation Date, Radiologix shall pay Xxxxx
for all his accrued, unused vacation pursuant to Radiologix's standard policy.
9. XXXXX'X RELEASE. In consideration of the promises, covenants and
other valuable consideration provided by Radiologix in this Agreement, and to
fully compromise and settle any and all claims and causes of action of any kind
whatsoever except as provided in this Agreement and the Consulting Agreement,
Xxxxx hereby unconditionally releases and discharges Radiologix and its current
and former employees, officers, agents, directors, shareholders and affiliates
and Radiologix's contracted radiology practices and their respective current and
former employees, officers, agents, directors, shareholders and affiliates
(collectively referred to as "Released Parties") from any and all claims, causes
of action, losses, obligations, liabilities, damages, judgments, costs, expenses
(including attorneys' fees) of any nature whatsoever, known or unknown,
contingent or non-contingent (collectively, "Claims"), that Xxxxx has as of the
date of this Agreement, including, but not limited to, those arising (i) out of
Xxxxx'x hiring, employment, termination of employment with Radiologix or the
Employment Agreement and (ii) under federal or state law, including, but not
limited to, the Age Discrimination in Employment Act of 1967, 42 U.S.C. Sections
1981-1988, Title VII of the Civil Rights Act of 1964, the Equal Pay Act, the
Employee Retirement Income Security Act of 1974, the Consolidated Omnibus Budget
Reconciliation Act, the National Labor Relations Act, the Occupational Safety
and Health Act, the Fair Labor Standards Act, the Family and Medical Leave Act
of 1993, the Workers Adjustment and Retraining Act, the Americans with
Disabilities Act of 1990, the Texas Labor Code, the Texas Commission on Human
Rights Act, the Texas Payday Act, Chapter 38 of the Texas Civil Practices and
Remedies Code, and any provision of the state or federal Constitutions or Texas
common law. This release includes but is not limited to any claims Xxxxx may
have for salary, wages, severance pay, vacation pay, sick pay, bonuses,
benefits, pension, stock options, overtime, and any other compensation or
benefit of any nature. This Release also includes but is not limited to all
common law claims including but not limited to claims for wrongful discharge,
breach of express or implied contract, implied covenant of good faith and fair
dealing, intentional infliction of emotional distress, defamation, conspiracy,
invasion of privacy, and/or tortious interference with current or prospective
business relationships. Furthermore, Xxxxx agrees and hereby relinquishes any
right to re-employment with Radiologix or the Released Parties. Xxxxx also
relinquishes any right to further payment or benefits under any employment
agreement, benefit plan or severance arrangement maintained or previously or
subsequently maintained by Radiologix or any of the Released Parties or any of
its respective predecessors or successors, except as expressly required in this
Agreement. However, Xxxxx does not release his right to enforce the terms of
this Agreement or the Consulting Agreement.
10. RADIOLOGIX'S RELEASE. Radiologix hereby unconditionally releases
and discharges Xxxxx from any and all Claims (as defined in Section 9) that
Radiologix has as of the date of this Agreement, so long as he acted in good
faith and in the best interests of Radiologix and his conduct was not unlawful
or illegal. However, Radiologix does not release its right to enforce the terms
of this Agreement, the Consulting Agreement or the Confidentiality Agreement (as
defined in Section 13 below).
11. NO CLAIMS AGAINST RELEASED PARTIES. Xxxxx warrants and represents
that he will not bring any claim or lawsuit against, or file any charge,
complaint or claim with any local, state or federal agency against, Radiologix
or any of the Released Parties related to any matters released by Xxxxx under
Section 9 of this Agreement. Xxxxx agrees that if he brings or asserts any such
action or lawsuit, he shall pay all costs and expenses, including reasonable
attorneys' fees, incurred by Radiologix or the Released Parties in defending the
action or lawsuit. Nothing in this provision, however, shall be interpreted to
prevent Xxxxx from bringing a claim or lawsuit to enforce the terms of this
Agreement or the Consulting Agreement.
12. NO CLAIMS AGAINST XXXXX. Radiologix warrants and represents that it
will not bring any claim or lawsuit against, or file any charge, complaint or
claim with any local, state or federal agency against, Xxxxx related to any
matters released by Radiologix under Section 10 of this Agreement. Radiologix
agrees that if it brings or asserts any such action or lawsuit, it shall pay all
costs and expenses, including reasonable attorneys' fees, incurred by Xxxxx in
defending the action or lawsuit. Nothing in this provision, however, shall be
interpreted to prevent Radiologix from bringing a claim or lawsuit to enforce
the terms of this Agreement or the Consulting Agreement.
13. CONFIDENTIAL INFORMATION. Xxxxx agrees that the Confidentiality,
Proprietary Information and Inventions Agreement (the "Confidentiality
Agreement") he executed in connection with the Employment Agreement shall remain
in full force and effect.
14. NON-DISPARAGEMENT. Xxxxx agrees that he will not criticize, defame
or disparage Radiologix or the Released Parties, their plans, or their actions
to any third party, either orally or in writing. Radiologix agrees that it will
not, and it will use its reasonable efforts to cause the Released Parties to
not, criticize, defame or disparage Xxxxx, his plans, or his actions to any
third party, either orally or in writing.
15. NON-COMPETITION AND NO SOLICITATION. The parties agree that Xxxxx'x
obligations in Section 5.2(c)(i) through 5.2(c)(iii) of his Employment Agreement
remain in full force and effect and that the one-year period referred to therein
shall begin on the later of the termination of this Agreement or the termination
of the Consulting Agreement. The parties agree that these obligations were
included in the Employment Agreement because of the Confidential Information and
specialized training that Xxxxx received from Radiologix during his employment.
In addition, the parties agree that in the continued performance of his duties
under this Agreement and the Consulting Agreement, Radiologix promises to supply
him, and he will obtain, Confidential Information. The parties also agree that,
in the event any court of competent jurisdiction holds that any of the
obligations or restrictions in Section 5.2(c)(i) through 5.2(c)(iii) of the
Employment Agreement are unreasonable and/or unenforceable as written, the court
may reform the obligations or restrictions to make them enforceable, and the
obligations and restrictions shall remain in full force and effect as reformed
by the court. Finally, the parties agree that any period or periods of Xxxxx'x
breach of these obligations will not count towards the one-year period, but
shall instead be added to the one-year period.
16. XXXXX'X DEATH. In the event of Xxxxx'x death, this Agreement shall
operate in favor of his estate ("Estate") and all payments, obligations and
consideration as contemplated hereby shall continue to be performed in favor of
his Estate.
17. RADIOLOGIX'S DEFAULT IN PAYMENT. Should Radiologix default in
timely payment on the due date of any payment or amount due under this
Agreement, Xxxxx shall give written notice of such default to the persons
specified in or pursuant to this Agreement to receive notice on behalf of
Radiologix. Radiologix shall have ten calendar days after the receipt of such a
notice of default to cure any payment default.
18. BREACH OF THIS AGREEMENT. If a court of competent jurisdiction
determines that either party has breached or failed to perform any part of this
Agreement, the parties agree that the non-breaching party shall be entitled to
injunctive relief to enforce the Agreement and that the breaching party shall be
responsible for paying the non-breaching party's costs and attorneys' fees
incurred in enforcing the Agreement. This Section does not apply to any claims
Xxxxx may have regarding the Age Discrimination in Employment Act.
19. SEVERABILITY. Should any of the provisions of this Agreement be
rendered invalid by a court or government agency of competent jurisdiction, or
should Xxxxx fail to fulfill his obligations under it, the remainder of this
Agreement shall, to the fullest extent permitted by applicable law and at
Radiologix's option, remain in full force and effect and/or the Consulting
Agreement shall be null and void.
20. ORDERLY TRANSITION AND DOCUMENTATION. Radiologix and Xxxxx are
willing to enter into this Agreement to insure an orderly transition of Xxxxx'x
job duties and to document all matters regarding Xxxxx'x resignation from
Radiologix, including matters relating to benefits, compensation, stock options,
the Employment Agreement, and the transition to a new Chief Executive Officer.
By entering into this Agreement, neither party is accusing the other of
wrongdoing. This Agreement shall not in any way be construed as an admission by
either party of any acts of wrongdoing, violation of any statute, law or legal
or contractual right.
21. AMBIGUITIES IN THE AGREEMENT. The parties acknowledge that this
Agreement has been drafted, prepared, negotiated and agreed to jointly, with
advice of each party's respective counsel, and to the extent that any ambiguity
should appear, now or at any time in the future, latent or apparent, such
ambiguity shall not be resolved or construed against either party.
22. CONFIDENTIALITY. Except as required by law, each of the parties
agrees to keep confidential the specific terms of this Agreement, and shall not
disclose the terms of this Agreement to any person except the financial, tax and
legal advisors of Xxxxx and Radiologix (and the Board of Directors of
Radiologix). This Agreement may be disclosed in, or filed as an exhibit to, any
filing required under any securities laws to be made by Radiologix.
23. NOTICES. All notices and other communications hereunder will be in
writing. Any notice or other communication hereunder shall be deemed duly given
if it is sent by registered or certified mail, return receipt requested, postage
prepaid, and addressed to the intended recipient as set forth:
If to Xxxxx:
Xx. Xxxx X. Xxxxx
00 Xxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
With copy to:
Xxxxxx Xxxxxxxxx
Quilling Xxxxxxxx Xxxxxxxxx & Xxxxxx, P.C.
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
If to Radiologix:
Chairman of the Board
Radiologix, Inc.
0000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
With copy to:
Xxxx X. Xxxxx, Executive Vice President and General Counsel
Radiologix, Inc.
0000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Any party may send any notice or other communication hereunder to the intended
recipient at the address set forth using any other means (including personal
delivery, expedited courier, messenger services, telecopy (sent to Radiologix at
214-303-2777), telex, ordinary mail or electronic mail), but no such notice or
other communication shall be deemed to have been duly given unless and until it
is actually received by the intended recipient. Any party may change the address
to which notices and other communications hereunder are to be delivered by
giving the other Party notice in the manner set forth herein.
24. COUNTERPART AGREEMENTS. This Agreement may be executed in multiple
counterparts, whether or not all signatories appear on these counterparts, and
each counterpart shall be deemed an original for all purposes.
25. CHOICE OF LAW. This Agreement shall be deemed performable by all
parties in, and venue shall be in the state or federal courts located in, Dallas
County, Texas and the construction and enforcement of this Agreement shall be
governed by Texas law without regard to its conflicts of law rules.
26. NO ASSIGNMENT OF CLAIMS. Xxxxx represents and warrants that he has
not transferred or assigned to any person or entity any claim involving
Radiologix or the Released Parties or any portion thereof or interest therein.
27. ENTIRE AGREEMENT. This Agreement sets forth the entire agreement
between the Parties, and fully supersedes any and all prior agreements,
understandings, or representations between the Parties pertaining to the subject
matter of this Agreement.
28. BINDING EFFECT OF AGREEMENT. This Agreement shall be binding upon
Xxxxx, Radiologix and their heirs, administrators, representatives, executors,
successors, and assigns.
29. OTHER COVENANTS OF XXXXX. Xxxxx agrees to notify Radiologix
promptly if he accepts any employment or consulting arrangement with any other
person or entity. If Xxxxx resigns his positions with Radiologix prior to the
Separation Date or accepts a full-time position with another person or entity
prior to the Separation Date (in each case, an "Early Termination"), (i)
Radiologix shall not be required to (a) pay his salary pursuant to Section 3
after the date of Early Termination, (b) pay the $221,000 payment due him on the
Separation Date, and (c) extend Xxxxx'x stock option vesting and exercise
periods described in Section 7, and (ii) the Consulting Agreement shall be null
and void.
30. TIME TO SIGN AND RETURN AGREEMENT. Xxxxx acknowledges and agrees
that he first received the original of this Agreement on or before November 29,
2002. Xxxxx also understands and agrees that he has been given at least 21
calendar days from the date he first received this Agreement to obtain the
advice and counsel of the legal representative of his choice and to decide
whether to sign it. Xxxxx further agrees that changes to the terms or form of
this Agreement, whether material or immaterial, do not restart the running of
this 21-day period. Xxxxx understands that he may sign the Agreement at any time
on or before the expiration of this 21-day period. Xxxxx also understands that
for seven calendar days after he signs this Agreement he has the right to revoke
it, and that this Agreement will not become effective and enforceable until
after the expiration of this seven-day period. However, Xxxxx specifically
understands and agrees that any attempt by him to revoke this Agreement after
the seven-day period has expired is, or will be, ineffective. Xxxxx represents
and agrees that he has thoroughly discussed all aspects of this Agreement and
the effect of same with his attorney, that he has had a reasonable time to
review the Agreement, that he fully understands all the provisions of the
Agreement and that he is voluntarily entering into this Agreement. By signing
this Agreement, Xxxxx acknowledges the following:
I ACKNOWLEDGE THAT I HAVE CAREFULLY READ THE FOREGOING AGREEMENT, THAT I
UNDERSTAND ALL OF ITS TERMS, AND THAT I AM ENTERING INTO IT VOLUNTARILY.
I FURTHER ACKNOWLEDGE THAT I AM AWARE OF MY RIGHTS TO REVIEW AND CONSIDER THIS
AGREEMENT FOR 21 DAYS AND TO CONSULT WITH AN ATTORNEY ABOUT IT, AND STATE THAT
BEFORE SIGNING THIS AGREEMENT, I HAVE EXERCISED THESE RIGHTS TO THE FULL EXTENT
THAT I DESIRED.
Executed as of December 4, 2002.
/s/ Xxxx X. Xxxxx
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XXXX X. XXXXX
RADIOLOGIX, INC.
By: /s/ Xxxx X. Xxxxx
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Title: Exec. VP, General Counsel and Secretary
