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EXHIBIT 10.15
SEVERANCE AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into as of the 22nd
day of July, 1998 by and between ▇▇▇▇▇▇▇ Central Holdings, Inc., a Delaware
corporation (hereinafter referred to as the "Company"), and ▇▇▇▇ ▇. ▇▇▇▇▇▇
(hereinafter referred to as the "Executive").
WHEREAS, the Company and Executive have determined that it is in the
best interests of both parties to enter into the arrangement contemplated by
this Agreement regarding the termination of Executive's employment with the
Company as provided herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree as
follows:
1. TERMINATION OF EMPLOYMENT.
The Company and the Executive hereby agree that the Executive shall
resign and terminate his employment and offices held with the Company and all
employment and offices held with all subsidiaries and affiliates of the Company
effective as of June 30, 1998 (the "Termination"); provided, however, Executive
will continue to serve as a director of the Company for his remaining term as
director, and for such additional terms as he may be reelected as a director
through December 10, 2000, all for no additional compensation beyond that
required under this Agreement. As of the Termination, the Employment Agreement
between ▇▇▇▇▇▇▇ Central Holdings, Inc. (Successor by name change to InfoMed
Holdings, Inc.) and the Executive dated December 10, 1996 (the "Employment
Agreement") is terminated; provided, however that the provisions of Sections 5
through 10 of the Employment Agreement will survive the termination of the
Employment Agreement and the "Applicable Period" as used in such Sections is
hereby redefined to mean "the period of Executive's employment and thereafter
through December 10, 2001."
2. CONSIDERATION.
(a) The Company shall provide Executive, in consideration
of his termination of employment and in full
satisfaction and discharge of any and all obligations
of the Company to Executive, the following,
(i) Through the period of employment ending June
30, 1998, Executive's unpaid base salary,
car allowance, membership reimbursements,
and insurance premiums reimbursements
pursuant to Sections 3(a), (c), (d), and (e)
of the Employment Agreement, in each case
prorated through the period ending June 30,
1998 (but no further unpaid, prorated or any
further bonus payments pursuant to Paragraph
3(b) of the Employment Agreement shall be
paid);
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(ii) For the period from July 1, 1998 through
December 10, 2000, severance at an annual
rate of $400,000, payable in periodic
substantially equal installments in
accordance with the normal practices of the
Company for its payroll; and
(iii) A $50,000, total sum (not per annum), which
shall be paid in substantially equal
installments over the same period described
in Section 2(a)(ii) above.
(b) Notwithstanding the foregoing, if the payments and
benefits hereunder when combined with all other
"payments in the nature of compensation" (within the
meaning of Section 280G of the Internal Revenue Code
of 1986, as amended (the "Code")) would result in a
"parachute payment" within the meaning of Code
Section 280G as determined by the Company, then the
aggregate payments and benefits hereunder shall not
exceed the largest amount (when combined with all
other "payments in the nature of compensation") as
determined by the Company that can be paid to the
Executive without resulting in a "parachute payment."
(c) Notwithstanding the foregoing, in the event Executive
fails to comply with any of the material terms of
this Agreement (which includes the provisions of the
Employment Agreement which survive its termination,
as amended hereby), the Company shall provide
Executive with written notice of such default.
Executive shall thereafter have thirty (30) days to
cure any such default. If Executive is unable or
otherwise fails to so cure within said thirty (30)
days then Executive shall, in addition to being
liable for any actual damages that may be incurred by
the Company, forfeit all payments that may thereafter
become payable pursuant to this Agreement (including
the payment by the Company of group health plan
premiums as set forth in Section 3 hereof.)
(d) Except as expressly provided herein, and except for
Executive's rights under any plan described in
Section 401(a) of the Internal Revenue Code,
Executive shall have no other entitlement to any
other compensation or severance of any nature
whatsoever relating to Executive's employment with,
or termination of employment from, the Company, or
any of its subsidiaries, affiliates or predecessors.
The Company may withhold from any amounts payable
under this Agreement all federal, state, city and
other taxes or amounts as shall be required pursuant
to any applicable statute, regulation, order or
ruling.
3. COBRA.
Executive will be permitted to continue group health plan coverage
pursuant to the requirements of the Company's group health plan(s) and the
continuation coverage requirements of the Employee Retirement Income Security
Act of 1974, as amended ("COBRA"). The Company shall pay as additional severance
to Executive an amount equal to Executive's premiums for COBRA coverage for him
and his eligible dependents with respect to such group health plan(s) until the
earlier of the termination of COBRA coverage or the first day of his coverage
under any other health plan. Executive shall be
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required to pay the full amount of the applicable COBRA premiums to the Company
as a condition to coverage under the Company's group health plan(s).
4. STOCK OPTIONS.
All of Executive's options to purchase common stock of the Company
which are fully vested as of the Termination shall be exercisable in accordance
with the terms of the applicable stock option agreement(s) and shall remain
subject to all the terms and conditions thereof. All of Executive's options to
purchase common stock of the Company which are not vested as of the Termination
are hereby terminated.
5. RETURN OF ALL COMPANY PROPERTY.
Executive shall within three (3) days of the Termination turn over, and
provide the Company with a written inventory of, all files (which files shall
contain all memoranda and records in Executive's possession), credit cards,
access cards, facsimile machine(s), cellular phone(s), portable computer(s) and
computer hardware (i.e. printer), and other documents or property (including
documents on computer diskettes and documents contained in the memory of any
computer and not saved on diskette) which were received from the Company, or any
of its subsidiaries, affiliates or predecessors. The Company shall have the
right to conduct an audit on the hard drive of any of Executive's personal
computers. The Company stipulates and agrees that to the best of its knowledge
Executive has fulfilled his obligations under this Section 5. Should Executive
subsequently uncover any additional Company materials or property, he shall
promptly return same to the Company.
6. CONFIDENTIALITY OF AGREEMENT.
Executive represents and agrees that he will keep the terms, amount and
fact of this Agreement completely and strictly confidential, and that he will
not hereafter disclose any information concerning this Agreement to anyone
other than his professional representatives or immediate family (who will be
informed of and bound by this confidentiality clause), except as is necessary in
any legal proceedings based upon the provisions and terms of this Agreement, or
to prepare and file income tax returns, or in response to a valid court order or
subpoena. Any breach by Executive of this promise of confidentiality shall be a
material breach, and such breach shall entitle the Company to damages, in
addition to the relief described in Section 2 hereof. Notwithstanding the
foregoing, Executive shall be permitted to disclose the portion of Section I
hereof relating to Sections 5 through 10 of the Employment Agreement to
prospective employers to the extent disclosure is required by such prospective
employers.
7. RELEASE AND COVENANT NOT TO ▇▇▇.
Excepting only (a) Executive's rights and the Company's obligations
under this Agreement, (b) any stock options and rights Executive may have as a
stockholder of the Company, (c) any claims related to any obligations of the
Company or its subsidiaries which Executive has guaranteed, and (d) any
indemnification rights Executive may have as a director of the Company,
Executive hereby releases and discharges the Company and each of its current or
former respective officers, directors, affiliates, agents, employees,
stockholders, successors and assigns (collectively, "Released Parties") from any
and all
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actions, causes of action, claims, demands, damages, costs and expenses
(including attorneys' fees and costs actually incurred) which may have arisen or
which may hereafter arise on account of or in connection with Executive's
employment with the Company through the date hereof, including, without
limitation, any claim of discrimination on any basis whatsoever (including any
claim under the Age Discrimination in Employment Act), any matter relating to
Executive's employment with the Company from the beginning of his employment
until the date hereof, and further agrees that he will indemnify and hold
harmless each of the Released Parties from and against any and all costs,
expenses, losses or damages, including, without limitation, costs of defense and
legal fees, incurred as a result of any such claims, charges, complaints,
actions or causes of action made or brought by or on behalf of Executive based
upon any claim released herein. Executive represents that he has not filed, nor
assigned to others the right to file, nor are there pending, any complaints,
charges or lawsuits by Executive against the Released Parties with any federal,
state or local governmental agency or any court. In addition, Executive is
expressly prohibited from and agrees not to initiate actions designed to
persuade or convince others to raise claims against the Released Parties. For
purposes of this paragraph and the definition of "Released Parties" set forth
above, references to "Company" shall be deemed to include its subsidiaries,
affiliates and predecessors.
8. COOPERATION AFTER TERMINATION; NON-DISPARAGEMENT.
(a) Executive agrees to cooperate in assisting the
Company and its designees on any and all matters that
in any way relate to matters he was responsible for,
familiar with, or otherwise arising out of or in
connection with any facts or circumstances occurring
during the term of Executive's employment with the
Company, or any of its subsidiaries, affiliates or
predecessors, in which the Company determines that
Executive's cooperation is necessary or appropriate.
In addition, if requested in writing, Executive
agrees to provide the Company within three (3) days
of the request with a written detailed summary of all
open items with respect to the Company's, and all of
its subsidiaries', affiliates' and predecessors',
affairs.
(b) For a period of three (3) years commencing on the
date of Termination, Executive agrees that he will
refrain from making or issuing any disparaging
comments relating to the management, performance or
business activities of the Released Parties or
procuring any person, firm or entity to make or issue
such disparaging comments. For purposes of this
Section, the term "disparaging comments" shall be
defined as any written or oral statement which, on
its face and regardless of context, could reasonably
be expected to cause embarrassment or humiliation. In
addition, Executive will not issue any public
announcement or public statement relating to the
Company, or any of its subsidiaries, affiliates or
predecessors, without the prior written consent of
the Company.
(c) Executive agrees that, unless required by law or by
the Company, Executive will not testify, give
evidence or otherwise participate in any form
concerning, his, any person's, or any entity's claims
against the Released Parties. Unless prohibited by
applicable law, if Executive is subpoenaed, required
to testify in any proceeding, requested to provide
any evidence in connection with any
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proceeding or otherwise requested to participant in
any proceeding, Executive shall notify the Company's
General Counsel (and if there is no General Counsel,
the Company's President or Chief Executive Officer)
of the subpoena, the demand that the Executive
testify, or such other request to provide evidence or
participate in the proceeding, by telephone and in
writing, within seventy-two (72) hours of receiving
the subpoena/demand/request or before the date of the
proposed testimony, provision of evidence or
participation in the proceeding, whichever is
earlier. Further, unless prohibited by applicable
law, Executive agrees to meet with and reasonably
cooperate with the Company's attorneys in preparation
for any testimony or the provision of such evidence
or participation in the proceeding.
(d) Executive will identify to any prospective employer
the Company's Chief Executive Officer as the
representative of the Company to be contacted for
inquiries by any prospective employer of Executive.
The Company shall refrain from making or issuing any
disparaging comments about the Executive in response
to any inquiry seeking a reference with respect to
the Executive, and the Company's response shall be
limited to confirming that Executive resigned and
verifying compensation, job title and dates of
employment.
9. NON-ADMISSION OF LIABILITY.
This Agreement shall not in any way be construed as an admission,
evidence or suggestion of wrongdoing by the Company, or any of its subsidiaries,
affiliates or predecessors, that they have acted wrongfully with respect to
Executive, or that Executive has any rights whatsoever against the Released
Parties. The Company and its subsidiaries, affiliates and predecessors
specifically disclaim and deny any liability to, or wrongful acts against,
Executive or any other person, on the part of themselves, or their respective
employees or agents, related to this or any other matter, whether currently
existing or brought in the future.
10. CONSULTATION WITH AN ATTORNEY; TWENTY-ONE (21) DAYS
CONSIDERATION PERIOD.
In regard to Executive's rights under the Older Workers' Benefit
Protection Act, Executive understands that he has a period of twenty-one (21)
days within which to consider this Agreement, which includes a waiver of claims
under the Age Discrimination in Employment Act. Executive and the Company also
agree that Executive has been encouraged to seek the advice of counsel regarding
whether to enter into this Agreement. Executive fully understands that all costs
or fees arising out of any legal representation sought with respect to this
Agreement are to be paid by Executive. To the degree that Executive chooses not
to wait twenty-one (21) days to execute this Agreement, it is because he freely
and unilaterally chose to execute this document before that time.
11. RIGHT TO REVOKE.
Executive and the Company agree that either Executive or the Company
shall have seven (7) days from the date of execution of this Agreement to revoke
and cancel this Agreement, by providing notice of revocation to the other party.
As a result of any revocation, no consideration hereunder shall be provided and
this Agreement will be null
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and void. Because of this seven-day revocation period, this Agreement will not
be effective until the eighth day after it is signed by Executive.
12. SEVERABILITY.
If any portion of this Agreement or the application thereof for any
reason or to any extent shall be determined to be invalid or unenforceable, such
invalidity or enforceability shall not in any manner affect or render invalid or
unenforceable the remainder of this Agreement.
13. INJUNCTIVE RELIEF.
Each of the parties hereto recognizes and acknowledges that a breach by
it of any covenants or agreements contained in this Agreement will cause the
other party to sustain damages for which it will not have an adequate remedy at
law for money damages, and therefore, in the event of any such breach, the
aggrieved party shall be entitled to the remedy of specific performance Of Such
covenants and agreements and injunctive and other equitable relief in addition
to any other remedy to which it may be entitled at law or in equity or pursuant
to the forfeiture provisions hereof.
14. GOVERNING LAW.
This Agreement shall be governed and construed in accordance with the
laws of the State of Georgia.
15. NO ASSIGNMENT.
This Agreement shall be binding upon and inure to the benefit of the
successors and assigns of each party hereto. This Agreement may not be assigned
by Executive. The Company may assign this Agreement to any subsidiary or
affiliate (provided the Company guarantees the performance of this Agreement by
such subsidiary or affiliate) or to any purchaser of a majority of its assets or
business.
16. SURVIVAL.
The provisions of this Agreement shall survive the termination of
Executive's employment with the Company.
17. ENTIRE AGREEMENT.
This Agreement constitutes the entire Agreement between the parties
hereto with respect to the subject matter hereof and supersedes all other prior
agreements or understandings between the parties, whether written or oral, with
respect thereto.
18. CONSENT TO JURISDICTION AND VENUE AND SELECTION OF FORUM.
This Agreement has been negotiated, executed, and delivered in the
State of Georgia. In regard to any action to enforce or interpret this
Agreement, or otherwise arising out of or relating to this Agreement, each party
(i) consents and submits to personal jurisdiction and venue in the Superior
Court of ▇▇▇▇▇▇ County, State of Georgia (referred to
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as the "Court"), (ii) waives any and all objections to jurisdiction and venue in
the Court, and (iii) waives any objection that the Court is an inconvenient
forum. Each party further agrees that jurisdiction and venue concerning any
legal or equitable action to enforce or interpret this Agreement, or otherwise
arising out of this Agreement, shall rest exclusively in the Superior Court of
▇▇▇▇▇▇ County, State of Georgia, so that any such action shall be brought and
defended in the Court.
19. NOTICE.
All notices, requests, demands and other communications required
hereunder shall be in writing and shall be deemed to have been duly given if to
the party to which the same is directed at the following addresses (or at such
other addresses as shall be given in writing, by the parties to one another):
If to the Company: ▇▇▇▇▇▇▇ Central Holdings, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
If to the Executive: ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
20. MISCELLANEOUS.
All references to "predecessors" of the Company shall be deemed to
include, but not limited to, Central Health Holding Company, Inc., Central
Health Management Services, Inc., Central Health Services, Inc. and ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, CPAs, and any of their current or prior subsidiaries and affiliates.
The Company agrees that Executive is permitted under this Agreement to perform
certain consulting services for the National Association of Home Care and its
affiliated organizations provided such association and each of its affiliated
organizations is not a Competing Business as defined in the Employment
Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the date first above written.
▇▇▇▇▇▇▇ CENTRAL HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇,
Chief Executive Officer
[signatures continue next page]
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EXECUTIVE
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇
Date: 7/19, 1998
By signing this Agreement, you state you
have carefully read this Agreement, which
includes a full and final release of all
claims, know and understand the contents of
this document, and execute the same
voluntarily and on your free will.
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