AMENDMENT TO SEVERANCE AGREEMENT AND RELEASE OF CLAIMS
This Amendment to Severance Agreement and Release of Claims ("Amendment")
is made and entered into as of July 1, 1997, by and between Xxxx Xxxxxxx
(hereinafter "Executive") and Access Health, Inc., a Delaware corporation
(hereinafter "Company"). The Company and Executive are sometimes referred to
individually as "Party" or collectively as "the Parties."
WHEREAS, on January 28, 1997, the Parties entered into an agreement
entitled "Severance Agreement" (hereafter "Severance Agreement"), a true and
correct copy of which is attached hereto as Exhibit A and incorporated herein as
if set forth in full;
WHEREAS, a dispute has arisen between the Parties as to the interpretation
and application of the Severance Agreement upon termination of Executive's
employment;
WHEREAS, the Parties disagree as to whether the Severance Agreement
reflects the terms of severance that were approved by the Board of Directors of
the Company; and
WHEREAS, the Parties desire by the Amendment to resolve their differences
and effectuate the orderly and amicable termination of Executive's employment;
NOW THEREFORE, in consideration of the mutual promises made herein, the
Company and Executive agree to modify, alter and clarify the terms of the
Severance Agreement, as follows:
1. EFFECT ON AMENDMENT. This Amendment is intended by the Parties to
modify, alter and clarify certain recitals, terms and conditions of the
Severance Agreement attached hereto as Exhibit A. To the extent that the
recitals, terms and conditions of this Amendment conflict with, contravene or
are inconsistent with the recitals, terms and conditions of the Severance
Agreement, the recitals, terms and conditions of this Amendment shall be
controlling and shall supersede and replace such inconsistent, contravening or
inconsistent recitals, terms and conditions of the Severance Agreement. In all
other respects, and except as specifically modified, altered or clarified by
this Amendment, the Parties hereby reaffirm and agree to be bound by the
recitals, terms and conditions of the Severance Agreement.
2. TERMINATION OF EMPLOYMENT. Executive's employment with the Company
shall terminate as of July 1, 1997 (hereafter "Termination Date"). Thereafter
and until August 1,1997, Executive shall provide telephonic assistance as
reasonably requested by the Company in the transition of Executive's
responsibilities to other employees of the Company. It is expressly agreed that
Executive shall not be required to keep office hours during this transition
period, but
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will make himself reasonably available by telephone to answer questions or
provide advice. Except as specifically described herein, Executive shall have
no obligation or responsibility to provide any services, consultation, business
efforts, time or work of any sort to or on behalf of Company from and after the
Termination Date.
3. CONSIDERATION. In consideration for Executive's willingness to
execute this Amendment, perform the obligations created hereby, and to
specifically enter into the Covenant Not to Compete or Solicit set forth herein,
the Company agrees to the following:
(a) SALARY CONTINUATION. The Company shall continue to pay to the
Executive his base compensation as in effect July 1, 1997, for the period
beginning July 1, 1997, through November 18, 1998 (the "Severance Period"), in
equal bi-weekly payments minus ordinary and required statutory deductions during
the Severance Period. The Executive hereby waives any right to payments with
respect to bonuses that become payable after the Termination Date.
(b) STOCK OPTIONS. As of the Termination Date, all stock options set
forth on Exhibit B attached hereto and by this reference incorporated herein
shall vest and become fully exercisable to the extent set forth thereon.
Executive shall have 150 days following the Termination Date to exercise any
stock option to the extent so vested and exercisable. Any stock option of
Executive not exercised by the end of such period shall be automatically
canceled. No other stock options shall be accelerated or otherwise vested.
(c) EMPLOYEE STOCK PURCHASE PLAN. Executive's termination of
employment with the Company shall be a termination for purposes of the Employee
Stock Purchase Plan (the "ESPP") of the Company. Executive's accumulated
contributions to the ESPP through the Termination Date shall be refunded to the
Executive pursuant to the terms of the ESPP as soon as practicable.
(d) HEALTH INSURANCE. The Company shall continue to provide
Company-paid health insurance coverage to Executive during the Severance Period
at the level of such coverage as of the Termination Date. Such coverage shall be
discontinued to the extent that Executive receives equivalent coverage in
connection with new employment during the Severance Period.
4. ATTORNEY'S FEES. The Company shall reimburse the Executive for up to
$2,500.00 in reasonable attorney's fees incurred in connection with the
execution of this Amendment, such reimbursement to be made in accordance with
Company's normal payment schedule following receipt by Company of valid invoices
that comply with the Company's written billing requirements for its outside
counsel.
5. NO DUTY TO MITIGATE. The Executive shall not be required to mitigate
the amount of any payment contemplated by this Amendment (whether by seeking new
employment or in any other manner).
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6. DEATH OF EXECUTIVE. In the event Executive dies during the Severance
Period, all amounts payable hereunder shall be paid to the Executive's estate or
to such person as shall have the right to receive such payments by will or the
laws of descent and distribution.
7. MUTUAL RELEASE OF CLAIMS. Except as otherwise specifically provided
in this Amendment, the Parties agree that the consideration set forth in this
Amendment represents settlement in full of all outstanding obligations owed to
Executive by the Company and of all of his claims and disputes against the
Company, and the Parties agree further that in consideration of the mutual
promises and obligations set forth herein, they each, on behalf of themselves
and their respective heirs, family members, executors, employees, officers,
directors, board members, successors and assigns, hereby fully, unconditionally
and forever release and discharge the other and their respective heirs, family,
board members, executors, officers, directors, investors, shareholders,
administrators, affiliates, divisions, subsidiaries, predecessor and successor
corporations, and assigns, from, and agree not to xxx concerning, any claim,
duty, obligation or cause of action relating to any matter 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 execution date of this Amendment including, without
limitation:
(a) any and all claims relating to or arising from Executive's
employment relationship with the Company and the termination of that
relationship;
(b) any and all claims relating to or arising from Executive's right
to purchase, or actual purchase of shares of stock of the Company, including,
without limitation, any claims for fraud, misrepresentation, breach of fiduciary
duty, breach of duty under applicable state corporate law, and securities fraud
under any state or federal law;
(c) 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; libel
or defamation; negligence; personal injury; assault; battery; invasion of
privacy; false imprisonment; and conversion;
(d) 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, the Family and Medical
Leave Act, and the Fair Labor Standards Act;
(e) any and all claims arising out of any other laws and regulations
relating to employment or employment discrimination;
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(f) any and all claims for attorneys' fees and costs; and
(g) any and all claims arising out of any act or omission by
Executive, whether negligent or intentional, which occurred during the course
and scope of Executive's employment with Company.
The Parties further 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 incurred
under this Amendment.
8. ACKNOWLEDGMENT OF WAIVER OF CLAIMS UNDER ADEA. Executive acknowledges
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 of this Amendment. 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 executing this Amendment; (b) he has at least
twenty-one (21) days within which to consider this Amendment; (c) he has at
least seven (7) days following the execution of this Amendment by the parties to
revoke the Amendment; and (d) this Amendment shall not be effective until the
revocation period has expired.
9. CONFIDENTIAL INFORMATION. Executive agrees to continue to maintain
the confidentiality of all confidential and proprietary information of the
Company for as long as it remains confidential and proprietary information, and
shall continue to comply with the terms and conditions of any and all
confidentiality agreements between Executive and the Company, including
specifically that Confidentiality Agreement attached as Exhibit C to the
Severance Agreement and by this reference incorporated herein. The terms of
such Confidentiality Agreement shall survive the date of termination of this
Amendment.
10. COVENANT NOT TO COMPETE OR SOLICIT. For purposes of this Amendment,
the "Company's Business" is defined as "providing symptom-based triage and/or
assessment that results in provider selection, patient channeling and/or patient
advice, as well as condition and/or disease management services, delivered via
an inbound or outbound telephone call center system to sponsored members of
health benefit plans provided by risk-bearing insurance companies, provider
groups, network managers, self-insured organizations, government organizations
and/or employers within the Company's "Service Area," which is defined to
include the U.S.A., Canada, South Africa, Portugal, Brazil, Argentina, the
United Kingdom, Germany, France, Switzerland, Norway, Sweden, Denmark, the
Netherlands, Belgium, Luxembourg, New Zealand, Italy, Spain, Austria and
Australia. In consideration for the fulfillment and performance of the promises
and obligations of the Company as set forth in Paragraph 3 herein, for the
period beginning on the Termination Date and ending on November 18, 1998 (the
"Non-Compete
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Period"), Executive shall not (without express written waiver), directly or
indirectly, engage in the following conduct within the Service Area:
(a) Actively, directly or indirectly, recruit or solicit, attempt to
recruit or solicit, or assist any other person or entity in recruiting or
soliciting for hire any person who was an employee of Company within the
six-month period prior to such actual or attempted recruitment or solicitation.
(b) Render services as a sole proprietor, agent, consultant,
contractor, employee, officer, director, stockholder or partner, for free or for
consideration, on Executive's own behalf or on behalf of any other person or
entity, consulting, employment or other services to any person or entity if such
services rendered by Executive are in any way related to the Company's Business
as defined in this Section 10, or if such services are intended to help any
person or entity enter into or expand into the Company's Business or improve
their competitive position in Company's Business.
(c) Accept employment with or render consulting or other services as
an agent, consultant, contractor, employee, officer, director, stockholder or
partner for free or consideration, on Executive's behalf or on behalf of any
other person or entity, to any person or entity which was or is a competitor or
prospective competitor of Company. Company acknowledges that a complete listing
of all such competitors or prospective competitors is attached hereto as Exhibit
C and incorporated herein by this reference.
(d) Participate in the solicitation of Company's employees,
customers, or suppliers to breach, modify or terminate any agreement(s) or
relationship(s) that they may have with Company.
(e) Participate voluntarily with any person or entity that is
involved in (i) a negotiation with Company involving a contract or services to
be rendered by Company or (ii) a potential or existing business or legal dispute
with Company including but not limited to litigation, except as may be required
by law.
11. REMEDIES.
(a) In the event of any breach of the covenants set forth in Section
10 above, as found by an arbitrator pursuant to the arbitration process set
forth in Section 12 below, Executive agrees that he shall return to the Company
the after-tax value of all salary continuation payments made to the Executive
hereunder from the Termination Date, and, as applicable, either (i) resell to
the Company at his original purchase price all shares of common stock of the
Company purchased by Executive upon exercise of accelerated options on or after
the Termination Date or (ii) forfeit to the Company the proceeds from any sale
of such shares above his original purchase
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price. In addition, any unexercised options then held by the Executive shall
be automatically canceled.
(b) Executive agrees that it would be impossible or inadequate to
measure and calculate the Company's damages from any breach of the covenants set
forth in Section 10. Accordingly, Executive agrees that if he is found by an
arbitrator pursuant to the arbitration process set forth in Section 12 below to
have breached any provision of Section 10, the Company will have available, in
addition to the damages set forth in paragraph (a) above and any other right or
remedy otherwise available, the right to obtain an injunction from the
arbitrator and from a subsequent court of competent jurisdiction restraining
such breach or threatened breach and to specific performance of any such
provision of this Amendment. Executive further agrees that no bond or other
security shall be required in obtaining such equitable relief, nor will proof of
actual damages be required for such equitable relief. Executive hereby
expressly consents to the issuance of such injunction and to the ordering of
such specific performance.
(c) The parties agree that in the event the Company believes
Executive has breached the Covenant Not to Compete or Solicit set forth in
Section 10 above, the Company will give the Executive notice of such breach
within thirty (30) days of the date Company first has actual knowledge of
Executive's alleged breach. Executive shall have thirty (30) days from receipt
of such notice to cure such alleged breach. If such breach is not cured to
Company's satisfaction within such thirty (30) day period or if Executive
disagrees with Company's conclusion that a breach has occurred, and the parties
cannot satisfactorily agree to a solution, either party may begin the
arbitration process set forth in Section 12 of this Amendment upon five (5) days
written notice to the other party.
12. ARBITRATION AND GOVERNING LAW.
(a) The Parties agree that any dispute or controversy arising out of,
relating to, or in connection with this Amendment or the Severance Agreement,
the interpretation, validity, construction, performance, breach, meaning,
application, effect, enforceability, or termination thereof, or any of the
matters herein released shall be settled by binding arbitration to be held in
Denver, Colorado in accordance with the National Rules for the Resolution of
Employment Disputes then in effect of the American Arbitration Association (the
"Rules"). The arbitrator shall be chosen in accordance with paragraph 12(d)
below. The arbitrator may grant injunctions or other relief in such dispute or
controversy.
(b) The arbitrator(s) shall apply Colorado law to the merits of any
dispute or claim, without reference to conflicts of law rules. The arbitration
proceedings shall be governed by federal arbitration law and by the Rules,
without reference to state arbitration law. Executive hereby consents to the
personal jurisdiction of the state and federal courts located in Colorado for
any action or proceeding arising from or relating to this Amendment or relating
to any arbitration in which the Parties are participants.
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(c) The arbitrator shall have the discretion to award reasonable
costs to the prevailing party, provided however, that each party shall bear
their own attorney's fees and an equal share of the arbitrator(s)' fees in said
proceedings.
(d) The parties shall agree upon an arbitrator to hear and determine
the matter. If the parties are unable to agree on a single arbitrator within
ten (10) days following service of a demand for arbitration by a Party, each
side to the dispute shall, within ten (10) days thereafter, select one
arbitrator, the two arbitrators selected shall, within ten (10) days following
their selection, select a third arbitrator, and the three arbitrators so
selected will then hear and finally determine the matter, except that the
parties can agree that the third arbitrator so chosen may alone hear and
determine the matter. Should any party or arbitrator fail to make the
arbitrator selections within the times specified herein, a complying Party or
arbitrator may immediately ask the Presiding Judge of the Superior Court in the
County of Denver, Colorado to select the arbitrator(s) without notice to the
non-complying Party or arbitrator and the non-complying Party shall accept the
arbitrator(s) so selected without objection. Except upon the agreement in
writing of all sides to the dispute, the arbitration hearing shall be commenced
not later than sixty (60) days from the date of service of a demand for
arbitration and shall be completed not later than ninety (90) days from the date
of service of a demand for arbitration. The arbitration proceedings shall be
conducted in the County of Denver, Colorado. Discovery may be conducted in the
same manner as if the matter were a civil action pending before a court of
competent jurisdiction in Denver, Colorado. Any disputes concerning discovery
will be submitted to the arbitrator(s) for final resolution. The award rendered
by the arbitrator(s) shall be final, conclusive and binding upon all parties and
may be entered as a judgment in any court of competent jurisdiction. There
shall be no right to appeal from any such award or judgment.
(e) EXECUTIVE HAS READ AND UNDERSTANDS THIS SECTION 12, WHICH
DISCUSSES ARBITRATION. EXECUTIVE UNDERSTANDS THAT BY SIGNING THIS AMENDMENT,
EXECUTIVE AGREES TO SUBMIT ANY CLAIMS ARISING OUT OF, RELATING TO, OR IN
CONNECTION WITH THIS AMENDMENT, THE INTERPRETATION, VALIDITY, CONSTRUCTION,
PERFORMANCE, BREACH OR TERMINATION THEREOF, OR ANY OF THE MATTERS HEREIN TO
BINDING ARBITRATION, AND THAT THIS ARBITRATION CLAUSE CONSTITUTES A WAIVER OF
EXECUTIVE'S RIGHT TO A JURY TRIAL AND RELATES TO THE RESOLUTION OF ALL DISPUTES
RELATING TO ALL ASPECTS OF THIS SEVERANCE AGREEMENT AND RELEASE OF ALL CLAIMS.
13. NON-DISPARAGEMENT. The Parties agree to refrain from any
disparagement, defamation, slander of the other, or tortious interference with
the contracts and relationships of the other. Executive acknowledges that it is
Company's policy to give only dates of employment when asked for references by
prospective employers.
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14. TAX CONSEQUENCES. All payments made pursuant to the Amendment shall
be subject to applicable withholding taxes.
15. NO ADMISSION OF LIABILITY. No action taken by the Parties hereto, or
either of them, either previously or in connection with this Amendment shall be
deemed or construed to be (a) an admission, directly or by implication of the
truth or falsity of any claims heretofore made or that the Company has violated
any law, rule, regulation, or contractual right, duty or obligation owed
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to Executive or (b) an acknowledgment or admission by either party of any fault
or liability whatsoever to the other party or to any third party. It is agreed
that the fact of this settlement cannot be used by any Party or any other person
to demonstrate or suggest an admission on the part of the Company.
16. AUTHORITY. The Company represents and warrants that the undersigned
has the authority to act on behalf of the Company and to bind the Company and
all who may claim through it to the terms and conditions of this Amendment.
Executive represents and warrants that he has the capacity to act on his own
behalf and on behalf of all who might claim through him to bind them to the
terms and conditions of this Amendment. Each Party warrants and represents that
there are no liens or claims of lien or assignments in law or equity or
otherwise of or against any of the claims or causes of action released herein.
17. NO REPRESENTATIONS. Each Party represents that it has carefully read
and understands the scope and effect of the provisions of this Amendment. The
Parties agree that they do not rely and have not relied upon any representations
or statements made by any other party hereto which are not specifically set
forth in this Amendment.
18. SEVERABILITY. In the event that any provision hereof becomes or is
declared by a court of competent jurisdiction to be illegal, unenforceable or
void, this Amendment shall continue in full force and effect without said
provision.
19. ENTIRE AMENDMENT. This Amendment between Executive and the Company
represents the entire amendment and understanding between the Parties as to the
subject matter herein and supersedes and replaces any and all prior agreements
and understandings, whether written or oral, including without limitation the
Severance Agreement.
20. NO ORAL MODIFICATION. This Amendment may only be amended in writing
signed by all Parties.
21. COUNTERPARTS. This Amendment may be executed in counterparts, and
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.
22. EFFECTIVE DATE. This Amendment is effective seven (7) days after it
has been signed by the Parties.
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23. SURVIVAL OF CONFIDENTIALITY AGREEMENT. Executive acknowledges that he
is in possession of Proprietary Information as defined in the Confidentiality
Agreement attached as Exhibit C to the Severance Agreement. Executive agrees
that his obligation not to use or disclose to anyone such Proprietary
Information shall survive the terms of this Amendment.
24. VOLUNTARY EXECUTION OF AMENDMENT. This Amendment is executed
voluntarily and without any duress or undue influence on the part or behalf of
any Parties hereto, with the full intent of releasing all claims. Executive
acknowledges that:
(a) he has read this Amendment;
(b) he has had the opportunity to consult legal counsel of his own
choice to the fullest extent he deems appropriate and necessary;
(c) he understands the terms and consequences of this Amendment and
of the releases it contains; and
(d) he is fully aware of the legal and binding effect of this
Amendment.
IN WITNESS WHEREOF, the Company and Executive voluntarily agree to and have
executed this Amendment as of the date first set forth above.
EXECUTIVE: ACCESS HEALTH, INC.:
By:
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Xxxx Xxxxxxx Xxxxxx X. Xxxxxxx
Its: Chief Executive Officer
Date: Date:
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