MILES RESIGNATION AGREEMENT EXHIBIT 10.95
RESIGNATION AGREEMENT
THIS RESIGNATION AGREEMENT (the "Agreement") is made as of the 10th day
of April, 1997, by and between CareMatrix Corporation, a Delaware corporation
(the "Company"), and Xxxxxxx X. Xxxxx ("Miles").
W I T N E S S E T H
WHEREAS, Miles is currently employed by the Company;
WHEREAS, Miles' employment by the Company is evidenced by an Amended and
Restated Employment Agreement, dated as of October 4, 1996 (the "Employment
Agreement"); and
WHEREAS, Miles desires to terminate the Employment Agreement and resign
from the Company to pursue other opportunities, effective as of April 1, 1997
(the "Resignation Date").
NOW THEREFORE, for and in consideration of the sum of Ten Dollars ($10.00)
and other good and valuable consideration, including the promises and covenants
contained herein, the receipt and sufficiency of which is hereby acknowledged by
each of the parties hereto, the parties agree as follows:
1. Recitals. The foregoing recitals are true and correct and are
incorporated herein by reference.
2. Resignation.
(a) Miles hereby resigns from the Company, such resignation to be effective
at 11:59 p.m. on the Resignation Date. Miles agrees to promptly execute all
documentation that the Company may reasonably request to confirm such
resignation. All reimbursable expenses of Miles incurred on behalf of the
Company prior to the Resignation Date shall be reimbursed to Miles subject to
the existing corporate policies regarding such reimbursement, together with any
accrued and unused vacation days.
(b) Any and all press releases, announcements or other communications
concerning or mentioning the resignation of Miles from the Company shall be
subject to the prior approval of Miles, other than statements, announcements or
other communications in the ordinary course; provided, however, that if Miles
makes any statements concerning the reasons for or terms of his resignation from
the Company that result in adverse publicity for any related entity, then the
Company shall have the right to make any responses deemed necessary to protect
its interest.
(c) Neither the Company nor Miles will make any statements nor take any
action to disparage the other, including any executive officer of the Company or
member of the Board of Directors of the Company (the "Board"), at anytime
whatsoever.
(d) The Company shall not contest any claim that Miles may make for
unemployment compensation.
3. Severance Payment. On the Resignation Date, the Company shall pay to
Miles a lump sum severance payment equal to one (1) year of Miles' base salary,
at his current salary rate of One Hundred Twenty-Five Thousand Dollars ($
125,000) per annum, less State, Federal, Social Security and Medicare
withholdings and Insurance Contributions (as defined below) (the "Severance
Payment"). In addition, the Company shall pay to Miles a lump sum payment equal
to Miles' current car allowance for one (1) year, which in the aggregate equals
Six Thousand Dollars ($ 6,000).
4. Stock Options. As of the date of this Agreement, Miles currently has
unexercised stock options for 60,900 shares of the Company's common stock (the
"Options"). The Company represents and warrants that all of Miles' Options are
vested and the resale of such Options are registered under the Securities Act of
1933, as amended. The Company shall cause the exercise period with respect to
such Options to be extended such that the Options shall be exercisable at any
time on or before October 31, 1998.
5. Benefits.
(a) Savings Plan. Subject to the terms of the applicable plans and Federal
and State laws and regulations, Miles shall have the right to receive a return
of all vested contributions of the Company (if any), to the 401(k) plan
maintained by the Company. The Company agrees to process promptly any requests
by Miles to roll over Miles' 401(k) savings account to a new account.
(b) Insurance Coverage. Commencing on the Resignation Date and continuing
until the earlier of (i) Miles' accepting new employment providing healthcare
coverage for Miles and his immediate family or (ii) March 31, 1998, the Company
will continue to provide Miles all medical, dental, long term disability and
term life insurance benefits in effect as of the Resignation Date. Miles'
employee contribution to the medical, dental, disability and life insurance
plans (collectively, the "Insurance Contributions") through March 31, 1998,
shall be deducted from the Severance Payment as set forth in Section 3 of this
Agreement. In the event Miles desires to terminate any of the insurance benefits
for which Miles has already paid the Company, Miles shall provide the Company
with written notice indicating when he desires the benefits to terminate (the
"Notice") and the Company shall reimburse Miles for the period of time when
Miles will not be covered by insurance, but for which Miles has already paid, as
described in the Notice. From and after the termination of Miles' healthcare
coverage with the Company, Miles will be entitled to continuation of such health
benefits under the Consolidated Omnibus Budget Reconciliation Act of 1986
(COBRA), unless Miles shall have accepted new employment by the end of the
applicable period of time for which such benefits are available under COBRA, in
which event Miles shall look to his new employer for healthcare benefits.
6. References. The Company agrees to respond to any oral or written
employment inquiries from any person regarding Miles' status, position and/or
employment relationship or employment history with the Company in a positive
manner and will, if asked, confirm Miles' dates of employment, his position as
Senior Vice President of Finance and compensation level (including salary,
bonuses and stock options).
7. Non-Competition. The Company shall waive all of the non-competition
provisions set forth in the Employment Agreement (specifically those set forth
in Section 11 thereof), except as provided in Section 8 hereof.
8. Protection of Proprietary Information. During the course of his
employment as an officer of the Company, Miles had access to and gained
knowledge with respect to all of the activities and lines of business the
Company entered, including, without limitation, the planning, development,
management and operation of independent living and assisted living facilities,
nursing homes and other health care facilities, the Company's research and
development techniques with respect to such facilities, projects and programs,
the preparation of market and demand and cost containment studies, project
evaluation methods, facility development programs, management techniques related
to all aspects of such facilities, projects and programs and related businesses
and other valuable and confidential information relating to the business and
activities of the Company (the "Confidential Information"). The parties
acknowledge that unauthorized disclosure or misuse of the Confidential
Information could cause irreparable damage to the Company. The parties also
agree that covenants by Miles not to make unauthorized disclosures of the
Confidential Information and not to use the Confidential Information in a
business in competition with that of the Company are essential to the growth and
stability of the business of the Company. Accordingly,
Miles agrees that, for a period of one (1) year after the Resignation Date,
Miles shall not use or disclose to anyone any Confidential Information obtained
by him in the course of his employment with the Company. Nothing contained in
this Section 8 shall be deemed to prohibit or restrict Miles from entering into,
owning, participating in or otherwise being involved with a business in
competition with the Company.
9. Remedies. In the event of any breach or threatened breach by Miles of
the provisions of Section 8 of this Agreement, the Company shall be entitled to
an injunction restraining such breach in addition to, and not to the exclusion
of, other remedies or relief. Nothing herein shall be construed as prohibiting
either party from pursuing any other remedies available to him or it for any
other breach or threatened breach of this Agreement by the other party,
including the recovery of damages from the other party.
10. Indemnification. The Company hereby agrees to defend, indemnify and
hold harmless Miles to the maximum extent permitted by applicable law and the
governing documents of the Company against any loss, liability, cost or expense,
in the event that Miles is made, or is threatened to be made, a party to any
action, suit or proceeding (whether civil, criminal, administrative or
investigative), for any acts or omissions taken or omitted to be taken by Miles
in the good faith reasonable belief that such acts or omissions were within the
scope of his duties as an employee of the Company, except for acts or omissions
which constitute bad faith, gross negligence or willful misconduct by Miles.
11. Waiver and Release.
(a) In consideration of the promises and covenants of the parties set forth
herein, the Company and Miles hereby, on behalf of themselves, their executors,
heirs, administrators, successors, assigns, and anyone else claiming, by,
through or under Miles or the Company, waive, release, covenant not to xxx and
forever discharge each other, their respective parent and subsidiary companies,
successors, present and former officers, directors, agents, employees and
representatives (hereinafter referred to collectively, with Miles and the
Company, as the "Releasees") of, from and with respect to any and all debts,
demands, actions, causes of action, suits, covenants, contracts, agreements,
promises, torts, damages, claims, demands and liabilities whatsoever of any name
and nature, both in law and in equity (hereinafter the "Claims") which either
Miles or the Company now has or ever had against each other or any of the
Releasees by reason of any matter, cause or thing whatsoever from the beginning
of the world to the date of the signing of this Agreement, including, but not
limited to, any Claims arising out of, based upon or connected with Miles'
employment by the Company, the compensation and working conditions for the
employment and/or the termination of that employment and any Claims that might
exist under federal, state or local laws, including, but not limited to, any
Claims based on race, national origin, handicap, color, age or sex.
(b) The waiver and release contained in this Section 11 includes any claims
that Miles or the Company might otherwise have had based on promises, contracts,
laws regarding unfair or bad faith conduct and wrongful discharge, and state and
federal statutory protections against discrimination in employment, specifically
including, among all the others, any rights or claims that Miles or the Company
may have under (i) the Age Discrimination in Employment Act of 1967, as amended
(29 USC ss. 621), which prohibits age discrimination in employment, except that
this Agreement does not release any claims under that Act that may arise after
the signing of this Agreement, (ii) Title VII of the Civil Rights Act of 1964,
which prohibits paying men and women unequal pay for equal work and/or, (iii)
the Americans with Disabilities Act, which prohibits discrimination against the
handicapped. The waiver and release also applies to any claims Miles or the
Company may have under applicable state law governing discrimination in
employment and applies to any claims that may now exist whether or not now known
to Miles or the Company. Miles understands and acknowledges that he has been
advised to consult with an attorney prior to executing this Agreement, and he
acknowledges that he has been given the opportunity to consider this Agreement
for a period of twenty-one (21) days; that he has the right to revoke the
Agreement within seven (7) days of the date he signs it by providing written
notice to the Company; and
that the Agreement shall not become effective or enforceable as to the release
of such rights until the eighth (8th) day following the date on which this
Agreement is signed by Miles.
(c) Notwithstanding anything in this Section 11 or any other provision of
this Agreement to the contrary, in no event shall Miles or the Company be deemed
to have waived or released any Claims with respect to any rights or obligations
created under this Agreement. Further, nothing in this Section 11 shall be
deemed to limit the provisions of Section 10 of this Agreement in any respect.
12. Confidentiality.
(a) Miles agrees that the provisions, terms and conditions of this
Agreement are to be held in strict confidence. Miles further agrees not to
disclose the fact that the benefits described in this Agreement were offered to
him, and/or the terms of this Agreement and/or the terms of the benefits
provided to him under this Agreement to anyone, unless compelled by legal
process, except his immediate family, his attorney(s), accountant(s) and
outplacement personnel, provided they likewise agree not to disclose said
information to anyone.
(b) The Company agrees that the provisions, terms and conditions of this
Agreement are to be held in strict confidence. The Company further agrees not to
disclose the fact that the benefits described in this Agreement were offered to
Miles, and/or the terms of this Agreement and/or the terms of the benefits
provided to Miles under this Agreement to anyone, unless compelled by legal
process, except that such disclosure may be made to certain employees, servants,
agents or persons affiliated with the Company on a need-to-know basis, as
determined by the Company.
13. Notices. All notices and other communications required or permitted
under this Agreement shall be in writing and shall be (as elected by the person
giving such notice) hand delivered by messenger or overnight courier service or
mailed by U.S. certified mail (postage prepaid), return receipt requested,
addressed to the parties as follows:
If to the Company: CareMatrix Corporation
000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: President
If to Miles: Xxxxxxx X. Xxxxx
00 Xxx Xxxxx Xxxx
Xxxxxxxxxx, XX 00000
or to such other address as any party may designate by notice complying with the
terms hereof. Each such notice shall be deemed delivered (a) on the date
delivered if by personal or overnight delivery, or (b) on the date upon which
the return receipt is signed, delivery is refused, or the notice is designated
by the postal authorities as not deliverable, as the case may be, if mailed. Any
notice required or permitted to be given under this Agreement shall be
sufficient if in writing and sent by registered or certified mail to the
principal office of the recipient.
14. Severability. Each section and paragraph hereof shall be considered
severable, and if for any reason any section or paragraph is determined to be
invalid under current or future law, such invalidity shall not impair the
operations of or otherwise affect the valid portions of this Agreement.
15. Entire Agreement. This instrument contains the entire agreement of the
parties and supersedes all other agreements, oral or written, between the
parties. It may not be changed orally, but only by an agreement in writing
signed by the party against whom enforcement of any waiver, change,
modification, extension or discharge is sought.
16. Governing Law. This Agreement shall be governed, construed and enforced
in accordance with the laws of the Commonwealth of Massachusetts.
17. Enforcement Costs. If any legal action or other proceeding is brought
for the enforcement of this Agreement, or because of an alleged dispute, breach,
default or misrepresentation in connection with any provisions of this
Agreement, the successful or prevailing party or parties shall be entitled to
recover reasonable fees of attorneys, paralegals, and legal assistants, court
costs and all expenses even if not taxable as court costs (including, without
limitation, all such fees, costs and expenses incident to appeals), together
with any sales tax thereon, incurred in that action or proceeding, in addition
to any other relief to which such party or parties may be entitled.
18. Interpretation. The terms of this Agreement have been negotiated by the
parties, and this Agreement shall not be construed or interpreted more strictly
against one party than another on the grounds that the Agreement or any draft
thereof was prepared by a party or its counsel.
19. Time of Essence. Time is of the essence of each covenant and obligation
of each party to this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused the due execution hereof
as of the date and year first above written.
WITNESSES: CAREMATRIX CORPORATION
By:
------------------------- -------------------------------
Name: Name:
Title:
------------------------- -----------------------------------
Name: Xxxxxxx X. Xxxxx
