CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE
Exhibit 10.2
This Confidential Separation Agreement and General Release (“Agreement”) is entered into by
and between Xxxxxx X. Xxxxx, an individual (“Executive”), and SXC Health Solutions Corporation and
its subsidiary, SXC Health Solutions, Inc. (collectively, the “Company”) effective June 30, 2008
(“Agreement Effective Date”):
1. Termination of Employment. Executive shall resign from Executive’s position as
Chief Executive Officer of the Company effective June 30, 2008. From the period beginning on June
30, 2008 and ending on December 31, 2008, Executive shall remain an employee of the Company,
serving in the position of Specialist, Marketing and Investor Relations. Executive acknowledges
that Executive’s employment with the Company will terminate effective December 31, 2008
(“Termination Effective Date”). Executive’s termination of employment shall be considered a
Termination by the Company Without Cause, pursuant to Section 5.2 (c) of Executive’s Employment
Agreement dated January 1, 2008 (“Executive’s Employment Agreement”).
1.1. Continued Chairmanship. Executive will remain the Chairman of the Board of
Directors of Company until December 31, 2008 at which time he shall voluntarily resign from that
position.
1.2. Confidential Supplemental Release. Upon the Termination Effective Date, but not
before, Executive shall sign a Confidential Supplemental Release Agreement substantially in the
form attached hereto as Exhibit A.
2. Compensation. Notwithstanding anything in Executive’s Employment Agreement dated
January 1, 2008 to the contrary:
(a) Executive’s right to receive an annual base salary in the amount of Three Hundred
Twenty-Five Thousand and 00/100 Dollars ($325,000.00) shall end on June 30, 2008.
(b) Executive’s right to earn any further pro rata share of Executive’s Incentive Compensation
Bonus shall end on June30, 2008.
(c) Executive’s right to earn a vehicle allowance in the amount of Five Hundred and 00/100
Dollars ($500.00) per month shall end on June30, 2008.
(d) Executive shall receive a salary of $2,000.00 per month (or a pro rata share thereof for
periods less than one month), payable in accordance with the Company’s payroll cycle, in
consideration for Executive’s services to Company as a Specialist, Marketing and Investor
Relations. In addition, Executive will continue to receive benefits as a full-time employee
including, but not limited to, company paid life insurance of $1,000,000.00, until the Termination
Effective Date.
Executive and the company acknowledge that Executive will receive a lump-sum payment equal to any
final compensation owed on the Company’s next regular payday following the Termination Effective
Date.
3. Separation Benefits: Subject to the provisions of this Agreement, and contingent
upon Executive’s signing of a Confidential Supplemental Release Agreement as referenced in Section
1.2 of this Agreement, the Company will pay Executive the benefits set forth in Article V,
Subsection 5.2(c) (ii) and (iii) of Executive’s Employment Agreement (“Separation Benefit”), as
follows:
(a) A lump-sum payment of $300,000.00, less required tax withholding, within thirty (30) days
after the Agreement Effective Date. This payment represents Executive’s anticipated Incentive
Compensation Bonus for 2008, pro rated to the Agreement Effective Date, and is calculated using the
average of the previous 2 years in which the Executive earned Incentive Compensation Bonuses and
represents approximately one-half of approximately 200% of Executive’s Annual Base Compensation;
(b) A lump-sum payment of $28,756.25, less required tax withholding, within thirty (30) days
after the Agreement Effective Date. This payment represents Executive’s accrued but unused Paid
Time Off as of June 30, 2008, and is calculated as 184.04 hours times $156.25 per hour;
(c) A lump-sum payment of $650,000.00, less required tax withholding, within thirty (30) days
after the Termination Effective Date. This payment is the equivalent of two (2) times Executive’s
Annual Base Compensation;
(d) A lump-sum payment of $300,000.00, less required tax withholding, within thirty (30) days
after the Termination Effective Date. This payment is the equivalent of one (1) times the average
incentive compensation payments to Executive over the previous two years; and
(e) Payment of health insurance premiums for a health insurance policy for the benefit of
Executive, his spouse and his dependents, with substantially the same benefits as for other
full-time executives of the Company. The Company shall provide this benefit until Executive is
eligible for Medicare benefits. This benefit shall initially be satisfied through the Company’s
payment of the COBRA insurance continuation benefits available to Executive, his spouse and his
dependents; provided, however, that Executive makes a timely COBRA election after receiving proper
notification from the Company.
The Separation Benefit does not constitute nor is it intended to be any form of compensation to
Executive for any services to the Company.
3.1. Stock Options: Notwithstanding anything else herein or in any other agreement entered
into between Executive and the Company to the contrary:
(a) All options for shares of the Company stock granted to Executive on May 16, 2007, whether
held by Executive or unvested as of the Agreement Effective Date, shall expire on the Agreement
Effective Date;
(b) All options for shares of the Company stock granted to Executive on March 8, 2006 which
remain unvested as of the Agreement Effective Date shall vest on December 31, 2008, and all options
for shares of the Company stock granted to Executive on March 8, 2006 shall expire if not exercised
within ninety (90) days after December 31, 2008;
(c) All options for shares of the Company stock granted to Executive on March 10, 2008 which
remain unvested as of the Agreement Effective Date shall vest on December 31, 2008, and all options
for shares of the Company stock granted to Executive on March 10, 2008 shall expire if not
exercised within ninety (90) days after December 31, 2008
(d) All options for shares of the Company stock granted to Executive on any dates other than
those listed in Section 3.1 (a), (b) or (c) above shall continue to be subject to all of the terms
and conditions of the agreements under which those options were granted.
This Section 3.1 supersedes and replaces Sections 3.7 and 5.2(g) of Executive’s Employment
Agreement dated January 1, 2008 and such Sections 3.7 and 5.2(g) shall be of no further force or
effect.
4. Consideration. Executive acknowledges that Executive would not be entitled to the
Separation Benefit provided for in paragraph 3 above in the absence of Executive’s signing of this
Agreement, that the Separation Benefit constitutes a substantial economic benefit to Executive, and
that it constitutes good and valuable consideration for the various commitments undertaken by
Executive in this Agreement.
2
5. Parties Released. For purposes of this Agreement, the term “Releasees” means the
Company, its past and present parents, subsidiaries, divisions, and affiliated companies; their
respective predecessors, successors, assigns, benefit plans, and plan administrators; and their
respective past and present shareholders, directors, trustees, officers, employees, agents,
attorneys and insurers.
6. General Release. Executive, for and on behalf of Executive and each of Executive’s
personal and legal representatives, heirs, devisees, executors, successors and assigns, hereby
acknowledges full and complete satisfaction of, and fully and forever waives, releases, acquits,
and discharges Releasees from any and all claims, causes of action, demands, liabilities, damages,
obligations, and debts (collectively referred to as “Claims”), of every kind and nature, whether
known or unknown, suspected or unsuspected, or fixed or contingent, which Executive holds as of the
date Executive signs this Agreement, or at any time previously held against the Releasees, or any
of them, arising out of any matter whatsoever (with the exception of breaches of this Agreement).
This General Release specifically includes, but is not limited to, any and all Claims:
(a) Arising out of or in any way related to Executive’s employment with the Company,
the termination of his employment;
(b) Arising out of or in any way related to any contract or agreement between Executive
and the Company;
(c) Arising under or based on the Equal Pay Act of 1963; Title VII of the Civil Rights
Act of 1964, as amended; Section 1981 of the Civil Rights Act of 1866; the Americans With
Disabilities Act of 1990; the Family and Medical Leave Act of 1993; the Fair Labor Standards
Act of 1938; the National Labor Relations Act; the Worker Adjustment and Retraining
Notification Act of 1988; Executive Retirement Income Security Act of 1974 (ERISA)
(excepting claims for vested benefits, if any, to which Executive is legally entitled
thereunder); the Illinois Constitution; the Illinois Wage Payment and Collection Law; the
Illinois Minimum Wage Law; the Illinois Human Relations Act; and the Illinois Whistleblower
Act;
(d) Arising under or based on the Age Discrimination in Employment Act of 1967 (ADEA),
as amended by the Older Workers Benefit Protection Act (OWBPA), and alleging a violation
thereof based on any action or failure to act by the Releasees, or any of them, at any time
prior to the effective date of this Agreement; and
(e) Arising out of or in any way related to any federal, state, county or local
constitutional provision, law, statute, ordinance, decision, order, policy or regulation
prohibiting employment discrimination; providing for the payment of wages or benefits,
providing for a paid or unpaid leave of absence; otherwise creating rights or claims for
employees, including, but not limited to, any and all claims alleging breach of public
policy, whistleblowing, retaliation, the implied obligation of good faith and fair dealing;
any express or implied oral or written contract, handbook, manual, policy statement or
employment practice; or alleging misrepresentation, defamation, libel, slander, interference
with contractual relations, intentional or negligent infliction of emotional distress,
invasion of privacy, false imprisonment, assault, battery, fraud, negligence, or wrongful
discharge.
7. Intended Scope of Release. It is the intention of the parties and is fully
understood and agreed by them that this Agreement includes a General Release of all Claims (with
the exception of breaches of this Agreement and claims for vested benefits, if any, to which
Executive is legally entitled under ERISA), which Executive holds or previously held against
Releasees, or any of them, whether or not they are specifically referred to herein. No reference
herein to any specific claim, statute or obligation is intended to limit the scope of this General
Release and, notwithstanding any such reference, this Agreement shall be effective as a full and
final bar to all Claims of every kind and nature, whether known or unknown, suspected or
unsuspected, or fixed or contingent, released in this Agreement.
3
8. Executive Waiver of Rights. As part of the foregoing General Release, Executive is
waiving all of Executive’s rights to any recovery, compensation, or other legal, equitable or
injunctive relief (including, but not limited to, compensatory damages, liquidated damages,
punitive damages, back pay, front pay, attorneys’ fees, and reinstatement to employment), from
Releasees, or any of them, in any administrative, arbitral, judicial or other action brought by or
on behalf of Executive in connection with any Claim released in this Agreement.
9. Covenant Not to Xxx. In addition to all other obligations contained in this
Agreement, Executive agrees that Executive will not initiate, bring or prosecute any suit or action
against any of the Releasees in any federal, state, county or municipal court, with respect to any
of the Claims released in this Agreement. Notwithstanding the forgoing, nothing in this Agreement
shall preclude Executive from bringing suit to challenge the validity or enforceability of this
Agreement under the Age Discrimination in Employment Act as amended by the Older Workers Benefit
Protection Act.
10. Remedies for Breach. If the Executive, or anyone on Executive’s behalf, initiates,
brings or prosecutes any suit or action against Releasees, or any of them, in any federal, state,
county or municipal court, with respect to any of the Claims released in this Agreement (except to
challenge the validity or enforceability of this Agreement under the Age Discrimination in
Employment Act as amended by the Older Workers Benefit Protection Act), or if the Executive
materially breaches any of the terms of this Agreement, then Executive shall be liable for the
payment of all damages, costs and expenses (including attorneys’ fees) incurred by the Releasees,
or any of them, in connection with such suit, action or breach: provided, however, that the
Releasees prevail in any such suit or action brought by any of the Releasees claiming that
Executive has materially breached any of the terms of this Agreement.
11. No Admission of Liability. Nothing in this Agreement constitutes or shall be
construed as an admission of liability on the part of the Releasees, or any of them. The Releasees
expressly deny any liability of any kind to Executive, and particularly any liability arising out
of or in any way related to Executive’s employment with the Company or the termination of
Executive’s employment.
12. Post-Employment Covenants.
(a) Executive hereby reaffirms and agrees to abide by all confidentiality and nondisclosure
obligations, nonsolicitation obligations, noncompetition obligations and any other post-employment
obligations to which Executive is subject under any contract or agreement between Executive and the
Company as well as the Illinois Trade Secrets Act, any other Illinois statute and Illinois common
law.
(b) Executive shall keep confidential the terms of this Agreement, and agrees that neither he,
nor Executive’s attorneys, nor any of Executive’s agents, shall directly or indirectly disclose any
such matters (other than to the Equal Employment Opportunity Commission, the Illinois Human Rights
Commission, or any other federal, state or local fair employment practices agency), unless written
consent is given by the Company’s President, or unless required to comply with any federal, state
or local law, rule or order. However, this paragraph will not prohibit Executive from disclosing
the terms of this Agreement to Executive’s attorneys, accountants or other tax consultants as
necessary for the purpose of securing their professional advice, or in connection with any suit or
action alleging a breach of this Agreement, or to the Executive’s spouse.
(c) Executive agrees that, after the Termination Effective Date, Executive will not access or
attempt to access, directly or indirectly, by any matter whatsoever, the Company’s computer
network, including without limitation, the Company’s e-mail system, the Company’s electronic
document storage and retrieval system, and the Company’s computer network servers and related
equipment.
(d) Executive acknowledges and agrees that, during the period of time from the Agreement
Effective Date through and including December 31, 2008 (and thereafter to the extent required by
the U.S. or Canadian securities laws), he will be considered an “insider” for purposes of the U.S.
and Canadian securities laws and he will comply with all restrictions imposed on insiders and named
executives under those laws in connection with trading in the securities of Company.
4
13. Warranty of Return of Company Property. Executive warrants and acknowledges that,
upon the Termination Effective Date or upon earlier demand by the Company, with the exception of
Executive’s current Dell laptop computer and Blackberry PDA/phone, Executive will turn over to the
Company all equipment or other property issued to Executive’s by the Company, along with all
documents, notes, computer files, and other materials which Executive had in Executive’s possession
or subject to Executive’s control, relating to the Company and/or any of its customers.
14. Warranty and Covenant of Nondisparagement. Executive (i) warrants that during the
time period between when Executive was notified of the termination of Executive’s employment with
the Company and Executive’s signing of this Agreement, Executive has not made any disparaging
remarks about the Releasees which are likely to cause harm to Releasees, collectively or
individually, or their products and services (“Disparaging Remarks”) and (ii) agrees that Executive
shall not make any Disparaging Remarks following Executive’s signing of this Agreement. The Company
(i) warrants that during the time period between when Executive was notified of the termination of
Executive’s employment with the Company and Executive’s signing of this Agreement, neither the
Company nor any of its directors, officers, management or employees has made any Disparaging
Remarks about the Executive which are likely to cause harm to Executive, and (ii) agrees that
neither the Company nor any of its directors, officers, management or employees shall make any
Disparaging Remarks following Executive’s signing of this Agreement.
15. Consideration Period. Executive is advised of to consult with an attorney or other
representative of Executive’s choice prior to signing this Agreement. Executive has a period of
twenty-one (21) days within which to consider and accept the Agreement. This twenty-one (21) day
period begins to run from May 27, 2008, which Executive acknowledges is the date on which Executive
received a copy of this Agreement (if not earlier). Executive agrees that any changes or
modifications (material or otherwise) made to the Agreement prior to its execution by Executive
shall not restart the twenty-one (21) day consideration period.
16. Revocation Period. Executive understands that Executive has the right to revoke
this Agreement at any time within seven (7) days after Executive signs it and that the Agreement
shall not become effective or enforceable until this revocation period has expired without
revocation.
17. Warranty of Understanding and Voluntary Nature of Agreement. Executive
acknowledges that Executive has carefully read and fully understands all of the provisions of this
Agreement; that Executive knows and understands the rights Executive is waiving by signing this
Agreement; and that Executive has entered into the Agreement knowingly and voluntarily, without
coercion, duress or overreaching of any sort.
18. Severability. The provisions of this Agreement are fully severable. Therefore, if
any provision of this Agreement is for any reason determined to be invalid or unenforceable, such
invalidity or unenforceability will not affect the validity or enforceability of any of the
remaining provisions. Furthermore, any invalid or unenforceable provisions shall be modified or
restricted to the extent and in the manner necessary to render the same valid and enforceable, or,
if such provision cannot under any circumstances be modified or restricted, it shall be excised
from the Agreement without affecting the validity or enforceability of any of the remaining
provisions. The parties agree that any such modification, restriction or excision may be
accomplished by their mutual written agreement or, alternatively, by disposition of a court or
other tribunal.
19. Entire Agreement/Integration. This Agreement constitutes the sole and entire
agreement between Executive and the Company with respect to the subjects addressed in it, and
supersedes all prior or contemporaneous agreements, understandings, and representations, oral and
written, with respect to those subjects.
20. No Waiver By the Company. No waiver, modification or amendment of any of the
provisions of this Agreement shall be valid and enforceable unless in writing and executed by
Executive and the Company’s President.
5
21. Successors and Assigns. This Agreement shall be binding upon, and shall inure to
the benefit of, Executive and Executive’s personal and legal representatives, heirs, devisees,
executors, successors and assigns, and the Company and its successors and assigns.
22. Choice of Law. This Agreement and any amendments hereto shall be governed by and
construed in accordance with the laws of the State of Illinois, without regard to conflicts of law
principles.
AGREED:
| COMPANY: | EXECUTIVE: | |||||||||
| SXC HEALTH SOLUTIONS CORPORATION and SXC HEALTH SOLUTIONS, INC. |
||||||||||
By: |
/s/ Xxxx Xxxx | June 16, 2008 | /s/ Xxxxxx X. Xxxxx | June 16, 2008 | ||||||
| Xxxx Xxxx | Date | Xxxxxx X. Xxxxx | Date | |||||||
6
EXHIBIT A
CONFIDENTIAL SUPPLEMENTAL RELEASE AGREEMENT
This Confidential Supplemental Release Agreement (“Supplemental Release Agreement”) is entered
into by and between Xxxxxx X. Xxxxx, an individual (“Executive”), and SXC Health Solutions
Corporation and its subsidiary, SXC Health Solutions, Inc. (collectively, the “Company”):
1. Termination of Employment. Executive acknowledges that his employment with the
Company terminated effective December 31, 2008 (“Termination Effective Date”), pursuant to the
Confidential Separation Agreement and General Release (“Separation Agreement”), previously entered
into between Executive and the Company.
2. Compensation owed. Executive acknowledges receipt of all compensation (including,
but not limited to, any and all overtime, commission, bonus payments and all other benefits except
accrued but unused vacation time) due from the Company through the payroll period immediately prior
to the Termination Effective Date. Executive and the Company acknowledge that Executive will
receive a lump-sum payment equal to any final compensation (including his accrued but unused
vacation time) earned but not yet paid to Executive on the Company’s next regular payday following
the Termination Effective Date.
3. Extension of Separation Agreement. The Separation Agreement is hereby extended
through the Termination Effective Date. The terms and provisions of the Separation Agreement,
including, but not limited to, the general release provisions found in Section 6, are incorporated
by reference herein and made a part hereof.
4. Consideration. In consideration for this Supplemental Release Agreement, Executive
was provided the Separation Benefit set forth in paragraph 3 of the Separation Agreement, which
Executive acknowledges constitutes good and valuable consideration for the various commitments
undertaken by Executive in the Supplemental Release Agreement and the Separation Agreement.
5. Revocation Period. Executive understands that he has the right to revoke this
Supplemental Release Agreement at anytime within seven (7) days after he signs it and that the
Supplemental Release Agreement shall not become effective or enforceable until the revocation
period has expired without revocation.
AGREED:
| COMPANY: | EXECUTIVE: | |||||||||
| SXC HEALTH SOLUTIONS CORPORATION and SXC HEALTH SOLUTIONS, INC. |
||||||||||
By: |
||||||||||
| {Insert Title of Xxxxxx} | Date | Xxxxxx X. Xxxxx | Date | |||||||
7
