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EXHIBIT 10.29
AGREEMENT
THIS AGREEMENT (the "Agreement") is entered into as of this 12th day
of December, 1996, by PHYSICIAN RELIANCE NETWORK, INC. ("Employer") and XXXXXXX
X. XXXXX ("Employee").
IN CONSIDERATION of the payments made and to be made by Employer to or
for the benefit of Employee under this Agreement, the mutual promises and
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Employer and Employee
agree as follows:
1. Background. Employee and Employer entered into an Employment
Agreement (the "Employment Agreement") dated September 1, 1994, concerning the
employment of Employee by Employer. Employee has decided to resign as an
employee and officer of Employer and as an officer and director of each of
Employer's subsidiaries and affiliates of which Employee is an officer or
director. Employee and Employer mutually desire to set forth their agreements
regarding Employee's resignation and to settle any and all claims and causes of
action that Employee has or may have against Employer and the other Releasees
(as hereinafter defined).
2. Termination of Employment. Employee's employment with Employer
shall terminate effective as of January 3, 1997 (the "Termination Date").
Effective as of the Termination Date, Employee also resigns as Executive Vice
President, Chief Financial Officer and Treasurer of, and from all other
positions with, Employer and resigns as an officer and director of each of
Employer's subsidiaries and affiliates of which Employee is an officer or
director.
3. Consideration. Subject to the terms of this Agreement and
conditioned upon Employee's full performance of this Agreement, including
without limitation Employee's compliance with Sections 5, 6, 7 and 8,
Employer shall pay or provide Employee with the following:
3.1 Cash Payment. Employer agrees to pay Employee $357,019.00
(the "Cash Payment"), less all applicable (i) federal income tax withholdings
as determined in accordance with the Employee's W-4 form on file with the
Employer, (ii) F.I.C.A., and (iii) other withholding and employment taxes. The
Cash Payment shall be paid as follows: $287,019.00 shall be paid on or before
January 3, 1997, and $70,000.00 shall be paid on or before the earlier of (x)
January 3, 1998, or (y) a Change of Control (as defined herein). For the
purposes of this Agreement, a "Change of Control" shall be deemed to have taken
place if as the result of, or in connection with, any cash tender or exchange
offer, merger or other business combination, sale of all or substantially all
of the assets of the Company, or any combination of the foregoing transactions,
less than a majority of the combined voting power of the then-outstanding
securities of the Company or any successor corporation or entity entitled to
vote generally in the election of the directors of the Company or such other
corporation or entity after such transaction are held in the aggregate by the
holders of the Company's securities entitled to vote generally in the election
of directors of the Company immediately prior to such transaction.
3.2 Insurance. Employee and Employer acknowledge that under
Title X of the Consolidated Omnibus Budget Reconciliation Act of 1985
("COBRA"), Employee may elect to buy continued coverage under Employer's group
health plan for a period of up to eighteen (18) months after termination of
employment. Employer shall pay the premiums for Employee's continued health
plan benefits under COBRA (the "COBRA Payments") for the period commencing on
the day after the Termination Date and continuing until the earlier of (i)
January 3, 1998, or (ii) if Employee is employed by another employer (the "New
Employer"), the first date Employee is eligible to be covered by the medical
plan of the New Employer.
3.3 Purchase of Furniture. Employer shall purchase those
items of furniture owned by Employee and listed on Schedule 3.3 attached hereto
for the purchase price of $3,000.00 (the "Purchase Price"). The Purchase Price
shall be paid on or before January 3, 1997, by Employer's check.
3.4 Full Payment. Employee agrees that the Cash Payment and
the other amounts and benefits to be provided by Employer to Employee under
this Agreement constitute the full and complete consideration to which Employee
is entitled in exchange for entering into this Agreement and that all
compensation or other payments and benefits to which Employee is or will be
entitled as an employee of Employer have been paid in full, except for the
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payment of salary and benefits for the pay period ending January 3, 1997, and
earned vacation through January 3, 1997, which will be paid in accordance with
Employer's regular payroll schedule.
4. Indemnification. TO THE FULLEST EXTENT ALLOWED BY LAW, EMPLOYER
WILL INDEMNIFY AND HOLD HARMLESS EMPLOYEE AGAINST ANY AND ALL ACTIONS, SUITS,
PROCEEDINGS, CLAIMS, DEMANDS, ASSESSMENTS, LIABILITIES, LOSSES, DAMAGES,
JUDGMENTS, PENALTIES (INCLUDING EXCISE AND SIMILAR TAXES), FINES, SETTLEMENTS,
DEFICIENCIES, COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION COURT COSTS AND
THE REASONABLE FEES AND EXPENSES OF COUNSEL), WHETHER KNOWN OR UNKNOWN, ARISING
OUT OF OR RESULTING FROM ANY ACTIONS TAKEN BY EMPLOYEE IN BEHALF OF EMPLOYER OR
ANY SUBSIDIARY OR AFFILIATE OF EMPLOYER OR BY VIRTUE OF BEING AN OFFICER OF
EMPLOYER OR AN OFFICER OR DIRECTOR OF ANY SUBSIDIARY OR AFFILIATE OF EMPLOYER.
5. Waiver and Release.
5.1 EMPLOYEE HEREBY IRREVOCABLY AND UNCONDITIONALLY RELEASES
EMPLOYER AND ANY AND ALL OF ITS SUBSIDIARIES, AFFILIATED COMPANIES AND
SUCCESSOR COMPANIES, AND THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND OTHER
REPRESENTATIVES (THE "RELEASEES"), FROM ANY AND ALL CLAIMS AND CAUSES OF
ACTION, KNOWN OR UNKNOWN, EXISTING ON THE TERMINATION DATE. Without limiting
the foregoing, this full waiver and release includes any claim of contractual
restriction on the right of employer to terminate employee's employment,
wrongful discharge, retaliatory discharge, and all rights under federal, state
or local law prohibiting race, sex, age, religion, national origin or other
forms of discrimination, including, but not limited to, Title VII of the Civil
Rights Act of 1964, as amended, the National Labor Relations Act, the Age
Discrimination in Employment Act, the Older Workers Benefit Protection Act, the
Americans with Disabilities Act, the Equal Pay Act, the Occupational Safety and
Health Act, the Family Leave Act, the Workers Adjustment and Retraining
Notification Act, the Fair Labor Standards Act, the Employee Retirement Income
Security Act, the Texas Commission of Human Rights Act, the Texas Worker
Compensation Law, and similar anti-discrimination statutes and provisions. If
Employer files any lawsuit against Employee for any claim arising out of
Employee's employment with Employer prior to the date of this Agreement,
Employee shall have the right to pursue any counterclaims against the Employer
notwithstanding the provisions of this Section 5, provided, however, that
Employee repays Employer the Cash Payment and the COBRA Payments prior to
filing any such counterclaims and Employee may assert all available defenses.
5.2 Employee agrees that Employee shall forever refrain from
initiating, prosecuting, maintaining, or pressing any action, suit or claim in
any jurisdiction against Employer based on the termination of Employee's
employment with Employer.
5.3 Employee acknowledges that there is a risk that
subsequent to the execution of this Agreement, Employee may discover, incur or
suffer from claims which were unknown or unanticipated at the time this
Agreement is executed, including without limitation unknown or unanticipated
claims which arose from, are based upon, or are related to Employee's
employment with Employer, which if known by Employee on the date this Agreement
is being executed, may have materially affected Employee's decision to execute
this Agreement. Employee acknowledges that Employee is assuming the risk of
such unknown and unanticipated claims, and agrees that this Agreement applies
to all such claims.
5.4 This Agreement is not intended to be a waiver of any
rights that Employee may have to (i) non-forfeitable benefits under any of
Employer's employee benefit plans which by their terms specifically provide for
non-forfeitable benefits; (ii) convert group benefits under any of Employer's
group benefit plans to individual coverage, to the extent that such plans allow
such conversion; or (iii) continue coverage under any of Employer's medical
plans as provided by the Consolidated Omnibus Budget Reconciliation Act of
1985.
6. Confidentiality.
6.1 Confidential Information. Employee acknowledges that
during the term of Employee's employment with Employer, Employee had access to
and became familiar with various trade secrets and confidential information,
including without limitation Employer's products, improvements, designs or
styles, processes, methods of marketing or distribution, systems, procedures,
plans, proposals, policies, financial information, compilations of
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information, records, and manner of doing business, which are owned by Employer
and which are regularly used in the operation of the business of Employer
(the "Confidential Information"). For purposes of this Agreement, "Confidential
Information" shall not include (i) information which becomes generally
available to the public other than through disclosure by Employee or (ii)
information that Employee possessed prior to employment with Employer. Employee
shall not, directly or indirectly, disclose or make known to any person, firm
or corporation or use any Confidential Information at any time after the
Termination Date except as such disclosure may be required by law or court
order. In the event disclosure is required by law or court order, Employee
shall notify Employer as soon as possible of such pending disclosure. All
files, records, documents, data, materials, equipment and similar items
relating to the business of Employer, whether prepared by the Employee or
otherwise coming into Employee's possession, shall remain the exclusive
property of Employer and shall not be removed from the premises of Employer
without the prior written consent of Employer. Any such files, records,
documents, data, materials or equipment and similar items, and any and all
copies of such property which have been removed from the premises of Employer
shall be returned by Employee to the Employer on the Termination Date.
6.2 Confidentiality of this Agreement. Employer and Employee
agree to hold confidential and not to disclose, make public or to communicate
orally or in writing to any person or entity, directly or indirectly, the terms
of this Agreement or any matter set forth herein, except (a) as may be
compelled by a court order, (b) as may be necessary to enforce the terms of
this Agreement, (c) to a party's legal, accounting or financial advisors, or
(d) as may be required by law.
7. Noncompetition.
7.1 For a period of three (3) years following the Termination
Date, Employee will not directly or indirectly, without the prior written
approval of Employer's Chief Executive Officer or General Counsel, (i) own,
manage, operate, control or participate in the ownership, management, operation
or control of, or be connected as an officer, employee, consultant, partner,
director or otherwise with, or have any financial interest in, or aid or assist
anyone else in the conduct of, any Business (as defined herein), or (ii) either
as an officer, employee, consultant, partner, director or otherwise, provide,
manage, or operate any Services (as defined herein), or control or participate
in the provision of any Services, or aid or assist anyone else (whether or not
a Business) in providing any Services; provided, however, that ownership of
five percent (5%) or less of the voting stock of any publicly held corporation
shall not constitute a violation of this section. For purposes of this
Agreement, "Business" shall mean any entity or business that provides any
Services as a substantial part of its business, and "Services" shall mean
outpatient oncology services or management services to an entity or business
that provides outpatient oncology services within the United States. Employee's
obligations under this Section 7.1 shall terminate after January 1, 1998, upon
a Change of Control.
7.2 Employee acknowledges that the time and geographical
restrictions set forth in this Section 7 are reasonable in scope and necessary
for the protection of the business and goodwill of Employer. Employee agrees
that should any portion of the covenants in this Section 7 be unenforceable
because of the scope thereof or the period covered thereby or otherwise, the
covenants shall be deemed to be reduced and limited to enable them to be
enforced to the extent permissible under the laws and public policies applied
in the jurisdiction for which enforcement is sought. In the event of a breach
of any of the covenants contained in this Section 7, it is understood that the
damages will be difficult to ascertain and the Corporation may petition a court
of law or equity for injunctive relief in addition to any other relief which
Employer may have under the law, including but not limited to reasonable
attorneys' fees.
7.3 Employee acknowledges that the provisions of this Section
7 are reasonable and necessary to protect the confidential information of
Employer and that Employee's relationship with another business that provides
outpatient oncology services or that provides management services to an entity
that provides outpatient oncology services would inevitably result in the use
or disclosure of Employer's confidential information for the benefit of that
other entity in competition with Employer. Employee also acknowledges that due
to Employee's educational background and experiences, the restrictive covenants
contained in this Section 7 will not cause Employee undue hardship and will not
unreasonably limit Employee's ability to earn a livelihood.
7.4 Nothing in this Agreement shall affect the provisions of
the Employment Agreement regarding confidential information and
non-competition, including without limitation Sections 8 and 9 of the
Employment Agreement. Employee reaffirms the provisions of the Employment
Agreement regarding confidential information and non-competition, including
without limitation Sections 8 and 9 of the Employment Agreement, and agrees
that such provisions continue to be binding upon Employee.
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8. No Disparagement.
8.1 Employee shall not make any negative, derogatory,
defamatory or disparaging comments, either in writing or verbally, about
Employer or any of its employees, officers or directors to anyone, including
without limitation the employees, officers, directors or members of the
Employer.
8.2 Employer's Chief Executive Officer, Chief Operating
Officer, General Counsel or Board of Directors shall not make any negative,
derogatory, defamatory or disparaging comments, either in writing or verbally,
about Employee to anyone.
9. Consideration. Employee agrees that the Cash Payment and the
COBRA Payments are reasonable and sufficient consideration for all of
Employee's covenants, obligations, waivers and releases under this Agreement.
10. Severability. If any term or provision of this Agreement
is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the provisions of this Agreement shall remain
in full force and effect and shall in no way be affected, impaired, or
invalidated.
11. Captions. The various caption headings in this Agreement are
inserted for convenience only and shall not affect the meaning or the
interpretation of this Agreement or any section or provision hereof.
12. Attorney's Fees and Costs. If any action, at law or in equity, is
necessary to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to recover reasonable attorney's fees, costs and
necessary disbursements from the losing party in addition to any other relief
to which the prevailing party may be entitled.
13. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, AND THIS AGREEMENT SHALL BE
DEEMED TO BE IN ALL THINGS PERFORMABLE IN DALLAS, DALLAS COUNTY, TEXAS. TO THE
EXTENT ALLOWED BY LAW, EMPLOYEE AND EMPLOYER AGREE THAT ANY ACTION OR
PROCEEDING TO ENFORCE OR INTERPRET THIS AGREEMENT SHALL BE BROUGHT AND
MAINTAINED IN A COURT OF COMPETENT JURISDICTION SITTING IN DALLAS COUNTY,
TEXAS.
14. Entire Agreement. This Agreement supersedes the Employment
Agreement and any and all other agreements, either oral or in writing, between
the parties hereto with respect to the subject matter hereof and contains all
of the covenants and agreements between the parties with respect to the subject
matter hereof. This Agreement does not, however, supersede or affect (i) the
outstanding stock option agreements between Employer and Employee, (ii) the
outstanding stock option agreements between Texas Oncology, P.A. and Employee,
or (iii) the Consulting Agreement executed between Employer and Employee with
respect to consulting services to be rendered by Employee after the Termination
Date.
15. Multiple Copies. While this Agreement may be executed in multiple
counterparts, each fully executed copy hereof shall, for all purposes, be
deemed to be the original, but all of such executed counterparts shall be
deemed to be but one agreement.
16. Benefit of Agreement. This Agreement shall be binding upon and
inure to the benefit of Employee and Employee's heirs and executors. Employee
shall not transfer or assign any or all of the Employee's rights, benefits or
obligations hereunder.
17. Modification and Waiver. The terms of this Agreement shall not be
modified, amended or changed and the necessity for compliance with any term,
provision, condition or requirement of this Agreement shall not be waived
unless consented to in writing and signed by Employer and Employee.
18. ADEA. Notwithstanding any other provision of this Agreement,
Employee specifically acknowledges and understands that Employee is, by signing
this Agreement, waiving any and all rights or claims Employee may have arising
out of Employee's employment with Employer, including any claims under the Age
Discrimination in Employment Act ("ADEA"), 29 USC ss.612, et seq., and Employee
and Employer agree as follows:
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(a) This Agreement is written in plain English.
(b) This Agreement does not waive Employee's
ADEA rights that arise after the date on which Employee executes this Agreement.
(c) Employee executes this Agreement in
exchange for consideration or compensation to which Employee is not already
entitled.
(d) Employee has been given twenty-one (21)
days to consider the terms of this Agreement before signing it.
(e) Employee is advised to discuss this
Agreement with Employee's lawyer before signing this Agreement.
(f) Employee will have seven (7) days after
signing this Agreement to revoke this Agreement. This Agreement will not
become effective or enforceable against Employee or Employer until the
seven-day revocation period has expired.
IN WITNESS OF THIS AGREEMENT Employee and Employer have executed this
Agreement as of the date and year first above written and Employee's signature
is witnessed by the individual who has executed as a witness on the same date.
EMPLOYEE:
Date: ____________________ _______________________________
Name:__________________________
Address:________________________
________________________
________________________
EMPLOYER:
PHYSICIAN RELIANCE NETWORK, INC.
Date: ____________________ By:_____________________________
Name:________________________
Title:_________________________
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Schedule 3.3
LIST OF FURNITURE
Quantity Description
-------- -----------
1 Desk
1 Desk Chair
2 Side chairs
1 Table
4 Table Chairs
1 Book case
1 Two drawer lateral file cabinet
1 Credenza
All items listed above are currently located in Employee's office.
