EXHIBIT 10.2
UNIVERSAL SELF CARE, INC.
00000 XXXXXXXXXX XXXX
XXXXXXX, XXXXXXXX 00000
-AND-
USCI HEALTHCARE MANAGEMENT SOLUTIONS, INC.
0000 XXXXXXXX XXXX, X.X., XXXXX 0
XXXXXXX, XXXXXXXX 00000
January 28, 1998
Xx. Xxxxxx X. Xxxxxxxx
000 Xxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Re: TERMINATION AGREEMENT
Dear Xx. Xxxxxxxx:
This letter sets forth the agreement between you and USCI Healthcare
Management Solutions, Inc. ("Healthcare") and Universal Self Care, Inc. ("USCI")
regarding your termination as an officer and employee of the Healthcare.
1. RESIGNATION DATE. Your employment as an officer and employee of
Healthcare will terminate, effective as of the close of business on the Closing
Date (the "Effective Date") of the Asset Purchase Agreement, dated November 14,
1997, as amended, by and among Xxxxxx Medical Management LLC, Universal Self
Care, Inc., Diabetes Self Care, Inc. and various other parties identified
therein (the "Asset Purchase Agreement").
2. CANCELLATION OF EMPLOYMENT AGREEMENT. In mutual consideration of the
promises contained in this termination agreement (the "Agreement"), effective as
of the Effective Date the Employment Agreement, dated as of December 16, 1996,
between you and Healthcare (the "Employment Agreement"), shall terminate and be
of no further force and effect, except as otherwise provided in this Agreement.
Unless otherwise separately defined herein, all capitalized terms used herein
shall have the same meaning as defined in the Employment Agreement.
3. PAYMENTS. Subject to this Agreement, USCI, the parent of Healthcare,
will pay you or provide you with the following benefits in connection with the
termination of your employment with Healthcare (the "Severance Benefits"):
a) SEVERANCE PAYMENT. Insofar as your termination of employment is
neither for Cause nor as a result of your death or disability (as determined
in accordance with the terms
of the Employment Agreement), notwithstanding the terms of the Employment
Agreement which would require compensation received by you from alternate
employment to be credited against Healthcare's obligations under the Employment
Agreement, and in recognition for your extraordinary efforts in connection with
the negotiation of the Asset Purchase Agreement and the management of the
process leading up to the Closing of the Asset Purchase Agreement, USCI shall
pay to you the following in full satisfaction of any obligations that it may
have to you under the terms of the Employment Agreement and with respect to the
termination of your employment thereunder: a total amount equal to Seven Hundred
Eight Thousand ($708,000) Dollars, (i) $250,000 to be paid by USCI on the
Effective Date (the "Initial Payment") and (ii) $458,000 to be paid by USCI in
sixty (60) equal monthly installments of $7,633.33 (the "Installments"),
payable on the first day of each succeeding calendar month commencing with the
second full month commencing after the Effective Date [subject to a fifteen (15)
day grace period with respect to payment of each such Installment]; PROVIDED,
that in the event that USCI receives a prepayment of amounts owed to it under
the terms of the $17,000,000 Promissory Note delivered to USCI under the terms
of the Asset Purchase Agreement (the "Prepayment"), then payment to you of the
aggregate amount of all Installments remaining unpaid (the "Installments
Balance") shall be accelerated, and within thirty (30) days following USCI's
receipt of such Prepayment you shall receive a "lump sum" payment from USCI
equal to the Installments Balance (the "Balance Payment"); PROVIDED FURTHER,
that notwithstanding such agreement to pay the Balance Payment, the Balance
Payment shall not exceed 50% of the amount of the Prepayment to USCI, with any
Installments not paid as part of the Balance Payment being paid in succeeding
equal monthly Installments (collectively, the Initial Payment and the
Installments payments shall be referred to as the "Severance Payment"). Other
than the continuing of certain stock options granted to you under the terms of
the Employment Agreement, and the continuation of payment of certain life
insurance premiums , and referred to in subparagraphs (c ) and (d) below,
payment of this Severance Payment represents the entire consideration to you as
a result of the termination of your employment by Healthcare.
(b) SECTION 401(K) BENEFITS. You shall be entitled to receive
benefits under the Diabetes Self Care, Inc. Employee Savings Plan in accordance
with the terms of such plan based upon the service credited to you through the
earlier of the Effective Date or the date of termination of the plan.
(c) STOCK OPTIONS. All stock options granted to you under the
Employment Agreement shall be fully vested and shall continue in full force and
effect through the date of expiration thereof, notwithstanding any other terms
which may be contained in such stock option agreements which would otherwise
result in termination of such stock options upon termination of employment by
Healthcare.
(d) LIFE INSURANCE POLICY. USCI shall continue to pay all premiums on
the existing $350,000 life insurance policy issued on your life by Valley Forge
life Insurance Company (such policy being Policy No. UL00003635, currently owned
by you), through December 31, 1999.
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(e) COBRA RIGHTS. After the Effective Date, you shall be entitled to
group health insurance continuation benefits pursuant to the relevant provisions
of the Consolidated Omnibus Budge Reconciliation Act of 1985 and any other
statutory health insurance rights at your sole cost and expense.
(f) NO OTHER BENEFITS. Except as expressly set forth in this Section
3, you shall not be entitled to any other payments or benefits from Healthcare,
USCI, or any of their parents, subsidiaries or affiliates (collectively, the
"Company"), or to participate in any employee benefit program of the Company on
or after the Effective Date. You also agree to waive any right you may have to
reemployment with the Company in any capacity. You agree that you have received
full reimbursement for all business expenses owned to you by the Company, except
for expenses, not to exceed $5,000 in the aggregate, which you incurred in the
ordinary course of business and for which your invoices have not yet been
received and approved.
4. RELEASE OF CLAIMS.
a) In recognition of the consideration recited above, (i) you hereby
release Healthcare and Diabetes, and (ii) subject at all times to your timely
receipt of all payments and other consideration to which you may be entitled
hereunder, you hereby release and discharge USCI, and any of their present,
former and future partners, affiliates, direct and indirect parents,
subsidiaries (other than Healthcare and Diabetes), successors, directors,
officers, employees, agents, attorneys, heirs and assigns (collectively, the
"Released Parties"), from any and all claims, actions and causes of action that
you may have as of the Effective Date with respect to the Released Parties,
which arise out of your employment relationship with Healthcare and any other
Released Parties, your rights to any compensation or benefits from the Released
Parties in connection with your employment, your Employment Agreement, or the
termination of your employment with the Released Parties (collectively, the
"Released Claims"). The Released Claims shall include any claims arising under
Title VII of the Civil Rights Act of 1964, the Rehabilitation Act of 1973, the
Americans with Disabilities Act of 1990, the civil Rights Act of 1866, the Civil
Rights Act of 1991, Employee Retirement Income Security Act of 1974,the Family
and Medical Lease Act of 1993, and any other federal, state or local law whether
such claim arises under statute or common law and whether or not you are
presently aware of the existence of such claim, damage, action and cause of
action, suit or demand, and any personal gain with respect to any claim arising
under the provisions of the False Claims Act, 31 U.S.C. 3730, other than an
action or suit to enforce this Agreement. You also forever release, discharge
and waive any right you may have to recover in any proceeding brought by any
federal, state or local agency against the Released Parties to enforce any laws
with regard to any Released Claim. You agree that the value received as
described in this Agreement shall be in full satisfaction of any and all claims,
actions or causes of action for payment or other benefits of any kind that you
may have against the Released Parties in respect of Released Claims, other than
any claims you may have to vested benefits under any of the Company's "employee
pension benefit plans" or "employee welfare benefit plans" as defined under
ERISA. By signing this Agreement, you represent that you have been given the
opportunity to consult with the attorney(s) of your choice prior to signing this
Agreement and to have those attorney(s) explain the provisions of this
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Agreement to you and that you have knowingly and voluntarily accepted the terms
of the offer as described herein.
b) The Released Parties hereby release you from any and all claims,
actions and causes of action that the Released Parties may have with respect to
the performance of your duties and obligations in connection with your
employment relationship with Healthcare and any other Released Parties on and
prior to the date hereof and pursuant to your Employment Agreement. The
foregoing notwithstanding, nothing herein shall be construed to release you from
any claims, actions, or other causes of action under the Asset Purchase
Agreement, all documents and instruments executed in connection with the Asset
Purchase Agreement and the Closing of the transactions contemplated therein, and
the consummation of the transactions contemplated by the Asset Purchase
Agreement, including but not limited to any employment agreements executed or to
be executed by you with Xxxxxx Medical Management, LLC or its affiliates.
5. PROTECTION OF THE COMPANY'S INTERESTS.
a) CONFIDENTIALITY. Notwithstanding any other provision hereof, you
shall remain obligated by all agreements which may exist between you and the
Company or between you and any third party executed in connection with your
employment by the Company regarding confidentiality, including, but not limited
to Section 5 of the Employment Agreement.
b) EXCLUSIVE PROPERTY. You confirm that all confidential
information of the Company is and shall remain the exclusive property of the
Company. All business records, papers and documents kept or made by you
relating to the business of the Company shall be and remain the property of the
Company. You further agree that you shall deliver to the Company on the
Effective Date, and shall not without the consent of the Company retain copies
of, any written materials not previously made available to the public, or
records and documents that you made or that came into your possession concerning
the business or affairs of the Company.
6. TAXES. USCI shall not withhold any amounts for federal, state or local
tax purposes from the $250,000.00 payment due on the Effective Date. You shall
be responsible for any taxes due on such payment. USCI shall be permitted to
withhold any amounts for federal, state or local tax purposes required to be
withheld with respect to the Installments. In the event USCI shall be required
to make any tax payment for your benefit in connection with the $250,000.00
payment, USCI shall also be permitted to withhold additional amounts from the
Installments to recoup any such payment(s).
7. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the Common wealth of Virginia applicable to
contracts to be performed in that state and without regard to laws that might
otherwise govern under applicable principles of conflicts of law.
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8. SUCCESSORS AND ASSIGNS. The rights and obligations under this
agreement shall be binding upon and shall inure to the benefit of the successors
and assigns of the Company and to your heirs, executives, successors and
assigns.
9. ENTIRE AGREEMENT/MODIFICATION. The terms and provisions of this
instrument constitute the entire agreement between the Company and you and shall
supersede all previous communications, representations or agreements, either
verbal or written, between the parties hereto (including, but not limited to any
communications, representations or agreement with any employee or representative
of Xxxxxx Medical Management LLC or any of its affiliates) with respect to your
employment with the Company on and prior to the Effective Date, including,
without limitation, the Employment Agreement, except as otherwise provided
herein. This Agreement may not be enlarged, modified, amended or altered except
in writing signed by USCI and you.
Please indicate your agreement and acceptance of the terms and conditions
of this Agreement by signing this document in the place provided below.
USCI HEALTHCARE MANAGEMENT SOLUTIONS, INC.
By:______________________________________
Xxxxx Xxxxxxxxx
Vice President
UNIVERSAL SELF CARE, INC.
By:______________________________________
Xxxxx Xxxxxxxxx
President
ACCEPTED BY:
__________________________
Xxxxxx X. Xxxxxxxx
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STATE OF VIRGINIA
} s.s.:
COUNTY OF ROANOKE }
On January _, 1998, before me personally came Xxxxxx X. Xxxxxxxx to
me known to be the individual described in, and who executed the foregoing
Termination Agreement and duly acknowledged to me that he executed the same.
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NOTARY PUBLIC
STATE OF MICHIGAN
} s.s.:
COUNTY OF _________ }
On January _, 1998, before me personally came Xxxxx Xxxxxxxxx, to me
known to be the Vice President of USCI Healthcare Management Solutions, Inc. and
the President of Universal Self Care, Inc. as described in, and who executed the
foregoing Termination Agreement, and duly acknowledged to me that he executed
the same in such capacities on behalf of USCI Healthcare Management Solutions,
Inc. and Universal Self Care, Inc..
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NOTARY PUBLIC
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