1
Exhibit 10.20
SEPARATION AGREEMENT
This Agreement is entered into as of this 30th day of June, 1999 (the
"Effective Date") between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇"), who currently
resides at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, and Fresenius
Medical Care Holdings, Inc., d/b/a Fresenius Medical Care North America, with
its principal offices located at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ("FMC" or the "Company"); and Fresenius Medical Care AG, with its
principal offices located at ▇▇▇▇-▇▇▇▇▇▇-▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ v.d.H.,
Germany ("FMCAG").
W I T N E S S E T H :
WHEREAS, on November 11, 1998, ▇▇. ▇▇▇▇▇▇ entered into an Employment
Agreement with National Medical Care, Inc. ("NMC"), a subsidiary of FMC (the
"Employment Agreement"), a copy of which is attached hereto as Exhibit A; and
WHEREAS, ▇▇. ▇▇▇▇▇▇, FMC, and FMCAG now desire to enter into an agreement
concerning the separation of ▇▇. ▇▇▇▇▇▇ from FMC.
NOW, THEREFORE, in consideration of the mutual promises contained in this
Agreement, ▇▇. ▇▇▇▇▇▇, FMC and FMCAG (the "Parties") agree as follows:
1. SEPARATION: The Parties agree that ▇▇. ▇▇▇▇▇▇ shall continue to work
for and be an employee of the Company through and including July 1, 1999 (the
"Separation Date"), and that until he ceases to be an employee of the Company,
▇▇. ▇▇▇▇▇▇ shall continue to hold the position of Senior Vice President and
General Counsel. FMC represents and ▇▇. ▇▇▇▇▇▇ agrees that the termination of
▇▇. ▇▇▇▇▇▇'▇ employment is not a termination for cause, as set forth in Section
5(a) of the Employment Agreement. Instead, the parties have mutually agreed to
end their current relationship in accordance with Section 5(d) of the Employment
Agreement on the terms and conditions set forth herein.
2. CONSIDERATION TO ▇▇. ▇▇▇▇▇▇: The Company shall make the following
payments and provide the following additional consideration to ▇▇. ▇▇▇▇▇▇:
a. SALARY AND BENEFITS CONTINUATION: Upon the separation of ▇▇.
▇▇▇▇▇▇'▇ employment with the Company, the Company agrees to pay ▇▇. ▇▇▇▇▇▇ all
accrued but unpaid base salary through July 1, 1999. In addition, the Company
agrees to the following:
i. SALARY. The Company agrees that, beginning on July 2, 1999, ▇▇.
▇▇▇▇▇▇ shall receive continuation of his salary, at an annual
rate of $450,000, from which all applicable withholdings shall be
made, for a period of two (2) years following the Separation Date
(the "Salary Continuation"). At ▇▇. ▇▇▇▇▇▇'▇ option, he may elect
to receive the
2
Salary Continuation referenced in this Section 2(a)(i) in a lump
sum (the "Lump Sum Election"), in which event ▇▇. ▇▇▇▇▇▇ shall
forego the continuation of his life insurance and medical
benefits provided in Section 2(a)(ii).
ii. MEDICAL AND DENTAL COVERAGE, AND LIFE INSURANCE; NO LUMP SUM
ELECTION. For as long as ▇▇. ▇▇▇▇▇▇ is receiving the Salary
Continuation, and provided that ▇▇. ▇▇▇▇▇▇ has not made the Lump
Sum Election, the Company agrees that ▇▇. ▇▇▇▇▇▇ shall receive
continuation at the Company's expense of any coverage under FMC's
medical and dental plans, such coverage to be provided to ▇▇.
▇▇▇▇▇▇ on the same basis and to the same extent as the coverage
provided ▇▇. ▇▇▇▇▇▇ during his employment. ▇▇. ▇▇▇▇▇▇'▇ life
insurance benefits will similarly continue at the Company's
expense during the Salary Continuation. Any conversion of life
insurance at the end of that period (or upon a Lump Sum Election)
may be arranged through the Corporate Human Resources Department.
iii. MEDICAL AND DENTAL COVERAGE, AND LIFE INSURANCE; LUMP SUM
ELECTION. In the event that ▇▇. ▇▇▇▇▇▇ makes the Lump Sum
Election as provided in Section 2(a)(i), he shall forego
continuation of the coverage specified in Section 2(a)(ii); it
being understood, however, that ▇▇. ▇▇▇▇▇▇ shall have the right
to elect to pay for coverage himself under COBRA. FMC will send
▇▇. ▇▇▇▇▇▇ the documents necessary for such COBRA election.
iv. LONG AND SHORT TERM DISABILITY BENEFITS. ▇▇. ▇▇▇▇▇▇'▇ long and
short term disability benefits shall cease as of July 1, 1999,
per company policy.
v. 401(K) PLAN. Contributions to FMC's 401(k) Plan may be withdrawn
from the plan by ▇▇. ▇▇▇▇▇▇ following ▇▇. ▇▇▇▇▇▇'▇ termination of
employment. ▇▇. ▇▇▇▇▇▇ may not make contributions to the Plan
during the Salary Continuation period.
vi. PENSION PLAN. ▇▇. ▇▇▇▇▇▇ will stop accruing benefit service under
the Pension Plan effective July 1, 1999.
vii. DEFERRED COMPENSATION PLAN. ▇▇. ▇▇▇▇▇▇'▇ account balance, if any,
under the Deferred Compensation Plan will be paid to him within
thirty (30) days of the Separation Date.
viii. CONTROLLING PLAN DOCUMENTS. It is understood and acknowledged
that
-2-
3
the provision of continued benefits to ▇▇. ▇▇▇▇▇▇ will be
governed by the terms of the Plan Documents applicable to such
benefits. The Company will not be under any obligation to amend
or modify such benefit plans. If ▇▇. ▇▇▇▇▇▇'▇ benefits cannot be
continued under the terms of the current group plans, the Company
will provide equivalent coverage under another plan or plans at
Company expense.
ix. FORM 1099. ▇▇. ▇▇▇▇▇▇ will be provided with a Form 1099 in
connection with the salary and benefits continuation he receives.
b. CONTRACTUAL INCENTIVE COMPENSATION. The parties agree that
incentive compensation provided under the Employment Agreement shall be treated
as follows:
i. 1999 FMC MANAGEMENT BONUS PLAN. ▇▇. ▇▇▇▇▇▇ will participate in
the 1999 Management Bonus Plan referenced in Section 4(b) of the
Employment Agreement, on a pro rata basis for six (6) month's
service in 1999. ▇▇. ▇▇▇▇▇▇ shall be at the 1999 senior executive
eligibility level, wherein the target level bonus is forty
percent (40%) and the maximum bonus is eighty percent (80%) per
plan of base salary. ▇▇. ▇▇▇▇▇▇ will be treated similarly with
other senior executives of FMC. ▇▇. ▇▇▇▇▇▇'▇ entitlement to a
bonus under the Plan will be governed by the terms of the Plan.
Payment will be made on the same day as payment to FMC senior
executives.
ii. SPECIAL BONUS. The parties acknowledge that the second paragraph
of Section 4(b) of the Employment Agreement provides for a
"Special Bonus." With respect to this Special Bonus the parties
have agreed that all issues if any, with respect to such bonus
are reserved and will be decided as per Section 4(b) of the
Employment Agreement upon the successful resolution of the
Investigation. By entering into this Agreement now, ▇▇. ▇▇▇▇▇▇ is
not waiving his right to any possible claim regarding this
Special Bonus, and is not limiting in any way the amount of the
bonus he can claim. The Company similarly is not conceding that
any entitlement to a Special Bonus exists, and is not agreeing
that a Special Bonus should be awarded at any particular level.
The parties agree that June 4, 1999 shall be the closing date for
the evaluation period for the Special Bonus. The parties will
enter into a tolling agreement with respect to any claims,
counterclaims and defenses that could be brought in connection
with the Special Bonus.
c. STOCK OPTIONS: ▇▇. ▇▇▇▇▇▇ shall also on the Separation Date
become vested in any Existing Options, consisting of 43,467 Fresenius Medical
Care AG Preference Shares, which are unvested on the Separation Date and in any
Future Options (together with
-3-
4
any previously vested options, the "Vested Options"). The Company and FMCAG
agree that ▇▇. ▇▇▇▇▇▇ is granted up to three (3) years from the Separation Date
in which to exercise the Vested Options, provided that ▇▇▇ ▇▇▇▇▇, or his
successor, will use his best efforts to recommend to the Management Board of
FMCAG (the "Management Board"), including but not limited to recommending to the
Management Board through an oral and written presentation in accordance with the
normal operating procedures of the Management Board, that ▇▇. ▇▇▇▇▇▇ be granted
up to ten (10) years from the date of the grant of his options to exercise them.
If, despite such aforementioned best efforts, the Management Board in its
reasonable discretion wishes to approve a period less than a ten (10) year
exercise period, ▇▇. ▇▇▇▇▇ shall use his "best efforts" to obtain such
alternative approval which would be in one year increments above three years.
If, within three years of July 1, 1999, any other senior executive is granted
more than three years by the Management Board to exercise his or her options,
that same amount of time will be given to ▇▇. ▇▇▇▇▇▇ unless the Management Board
has already granted ▇▇. ▇▇▇▇▇▇ five (5) or more years from the Separation Date
within which to exercise his options, in which case this provision relating to
the exercise period for other executives will become inapplicable, and ▇▇.
▇▇▇▇▇▇'▇ exercise period will be that set by the Management Board.
d. VACATION/PTO TIME: ▇▇. ▇▇▇▇▇▇ will receive on or before the
Separation Date a payout of all accrued but unpaid vacation/PTO time to which he
is entitled under Company policy, which the Parties agree is 556 hours of time.
e. EXPENSE REIMBURSEMENT: The Company acknowledges that ▇▇. ▇▇▇▇▇▇
has incurred expenses on behalf of the Company which have not yet been
reimbursed, and, in accordance with the Company's policies, the Company will
reimburse ▇▇. ▇▇▇▇▇▇ within ten (10) business days of the submission of
documented proof of such expenses to ▇▇▇▇▇ ▇'▇▇▇▇▇▇▇, Vice President of Human
Resources.
f. CAR ALLOWANCE: The Company further acknowledges that it has not
yet compensated ▇▇. ▇▇▇▇▇▇ for the automobile allowance provided in Section 4(f)
of the Employment Agreement. The Company agrees to pay ▇▇. ▇▇▇▇▇▇ the amount of
$4,500.00 for such allowance on or before the Separation Date.
g. OTHER PAYMENTS: In addition to the foregoing, and as further
consideration for the other terms and conditions set forth in this Agreement,
including a release of all claims to date by ▇▇. ▇▇▇▇▇▇ (with the exception of
the Special Bonus), on or before the tenth day following the execution of this
Agreement by the parties the Company will pay to ▇▇. ▇▇▇▇▇▇, in a lump sum,
$50,000 from which all applicable withholdings shall be made. On or before
January 1, 2000 the Company will pay to ▇▇. ▇▇▇▇▇▇, in a lump sum, $50,000 from
which all applicable withholdings shall be made. The Company shall issue to ▇▇.
▇▇▇▇▇▇ a Form-1099 in connection with these payments.
h. CONSULTING AGREEMENT: The Company and ▇▇. ▇▇▇▇▇▇ will enter into
an
-4-
5
agreement through which ▇▇. ▇▇▇▇▇▇ will agree to provide consulting services to
the Company, at such reasonable times and upon reasonable notice, as the Company
may request as provided below (the "Consulting Agreement"). ▇▇. ▇▇▇▇▇▇ will be
paid a base of $150,000 per year for three years (the "Consulting Fee")
following August 1, 1999 (the "Term") which may increase as set forth under
Section 2(h)(i), unless the consulting arrangement is terminated earlier. The
Consulting Fee shall paid in equal installments on a quarterly basis, in
advance.
(i.) The Company acknowledges that ▇▇. ▇▇▇▇▇▇ may assume other
commitments, and intends to seek other employment and undertake
other endeavors during the Term. Accordingly, ▇▇. ▇▇▇▇▇▇'▇
consulting obligations shall require not more than 25 hours per
month (the "Maximum Commitment"). Reasonable travel time above
and beyond reasonable commuting time (i.e., outside a radius of
15 miles) shall be counted toward the Maximum Commitment. The
amount of the Maximum Commitment shall not change during the Term
of this Agreement, unless the parties mutually agree in writing,
in which event ▇▇. ▇▇▇▇▇▇ shall be compensated for any increased
time over the Maximum Commitment at a rate of $500.00 per hour.
The Company also agrees that if a conflict of interest or
potential conflict of interest arises in connection with any
other employment obtained by ▇▇. ▇▇▇▇▇▇, the Company shall waive
such conflict or potential conflict as permitted under relevant
ethical rules governing the practice of law in the Commonwealth
of Massachusetts.
(ii.) The scope of ▇▇. ▇▇▇▇▇▇'▇ consulting shall be limited to the OIG
Investigation defense and any related litigation matters, unless
the parties mutually agree in writing to the contrary.
(iii.) ▇▇. ▇▇▇▇▇▇'▇ role shall be that of a legal consultant, with the
status of outside counsel to the Company.
(iv.) ▇▇. ▇▇▇▇▇▇ shall be directed by ▇▇. ▇▇▇▇▇ or his successor, the
General Counsel of FMCAG, it being understood that ▇▇. ▇▇▇▇▇▇
expects to work with the Company's management team, including
any new general counsel.
(v.) ▇▇. ▇▇▇▇▇▇'▇ consulting obligations shall begin on August 2,
1999.
(vi.) The Company shall provide ▇▇. ▇▇▇▇▇▇ with reasonable notice and
a written Request for Assistance, to initiate a consulting
project. The Company shall provide reasonable lead-time on all
such projects.
-5-
6
(vii.) The Consulting Agreement shall be terminable as follows
[a] BY THE COMPANY FOR GOOD CAUSE. The Company shall have
the right to terminate the Consulting Agreement for Good Cause
only. For purposes of the Consulting Agreement, the term "Good
Cause" shall consist of [1] a material breach of the Consulting
Agreement or this Agreement by ▇▇. ▇▇▇▇▇▇,which remains uncured
for thirty (30) days after receipt by ▇▇. ▇▇▇▇▇▇ of written
notice from the Company, informing him of its intention to
terminate under this Section, and providing him with the reasons
therefore, in detail sufficient to allow cure; or [2]
▇▇. ▇▇▇▇▇▇'▇ failure to provide the consulting services called
for under the Consulting Agreement for a period of twenty (20) or
more consecutive days; provided, however, that ▇▇. ▇▇▇▇▇▇ shall
be entitled to reasonable vacation during the Term and, provided
further, that if serious illness or other excusable factor beyond
▇▇. ▇▇▇▇▇▇'▇ control prevents him from providing such services,
the Company shall extend the 20-day period for a reasonable time;
or [3] ▇▇. ▇▇▇▇▇▇ bringing any action against the Company or any
of the Releasees as defined in Section 3(a) of any kind in any
forum, except as provided in Sections 2(b)(ii) and 3(b) or to
enforce this Agreement.
[b] BY ▇▇. ▇▇▇▇▇▇ FOR GOOD REASON. ▇▇. ▇▇▇▇▇▇ shall have
the right to terminate the Consulting Agreement for Good Reason.
For purposes of this Agreement, "Good Reason" shall mean the
occurrence of any of the following circumstances: (i) a material
breach of the terms of the Consulting Agreement by FMC or FMCAG,
which remains uncured for thirty (30) days after receipt by ▇▇.
▇▇▇▇▇▇ of written notice from the Company, informing him of its
intention to terminate under this Section, and providing him with
the reasons therefore, in detail sufficient to allow cure; (ii) a
change in ▇▇. ▇▇▇▇▇▇'▇ reporting line to ▇▇. ▇▇▇▇▇ or his
successor; (iii) any interference by FMC or FMCAG in the
relationship between ▇▇. ▇▇▇▇▇▇ and his employer, which remains
uncured for thirty (30) days after receipt by the Company of
written notice from ▇▇. ▇▇▇▇▇▇, informing it of his intention to
terminate under this Section, and providing it with the reasons
therefore, in detail sufficient to allow cure, provided further
that the Company shall be entitled to only one such notice and
cure period during each year of the Term; (iv) the Company
bringing any action against ▇▇. ▇▇▇▇▇▇ of any kind in any forum,
except as provided in Sections 2(b)(ii) and 3(b) or to enforce
this Agreement.
-6-
7
[c] BY ▇▇. ▇▇▇▇▇▇ FOR CONVENIENCE. ▇▇. ▇▇▇▇▇▇ may terminate
this Agreement for convenience, upon thirty (30) days written
notice.
[d] EFFECT OF TERMINATION ON COMPANY'S CONSULTING FEE
OBLIGATION. In the event of a termination properly in accordance
with Section 2(h)(viii)[a] or Section 2(h)(viii)[c], the Company
shall pay ▇▇. ▇▇▇▇▇▇ Consulting Fees through the then-current
quarter, any further obligation to pay to ▇▇. ▇▇▇▇▇▇ Consulting
Fees shall cease, and no further Consulting Fees shall be due ▇▇.
▇▇▇▇▇▇ under the Consulting Agreement. In the event of a
termination properly in accordance with Section 2(h)(viii)[b],
the Company's obligations with respect to the Consulting Fees
shall continue, and all Consulting Fees remaining through the end
of the Term shall be accelerated, and shall become due and owing
thirty (30) days after the date of any such termination under
Section 2(h)(viii)[b].
(viii.) ▇▇. ▇▇▇▇▇▇ will be reimbursed for the expenses he incurs in
connection with such consulting, following the submission of
documentation confirming the expenses in accordance with Company
policy.
i. ENTIRE CONSIDERATION: ▇▇. ▇▇▇▇▇▇ understands and agrees that the
payments and benefits provided for in this Agreement are in excess of those to
which he otherwise would be entitled and that they are being provided to him in
consideration for his signing of this Agreement, which consideration he agrees
is adequate and satisfactory to him. ▇▇. ▇▇▇▇▇▇ understands and agrees that
other than as set forth in this Agreement, he will not receive any compensation,
payment or benefit of any kind from the Company and he expressly acknowledges
and agrees that other than as noted in Sections 2(b)(ii) and 3(b), he is not
entitled to any such further compensation, payment or benefit of any kind,
including any payment with respect to any bonus.
3. ▇▇▇▇▇▇ RELEASE: ▇▇. ▇▇▇▇▇▇, for the consideration given by the Company
as set forth above, which he acknowledges is adequate and satisfactory to him,
hereby commits as follows:
a. With the exception of any claims under Sections 2(b)(ii) and
3(b), ▇▇. ▇▇▇▇▇▇ covenants not to ▇▇▇ and irrevocably and unconditionally
remises, releases, waives and forever discharges the Company including its past
and present parents, subsidiaries, affiliates, predecessors, insurers and their
successors and assigns; and its and their past, present and future directors,
officers, agents, representatives and employees, and all persons acting by,
through, under or in concert with them (together the "Releasees"), from any and
all manner of liabilities,
-7-
8
actions, causes of action, contracts, agreements, promises, claims and demands
of any kind or nature whatsoever, in law or equity, including attorneys' fees,
whether known or unknown, which ▇▇. ▇▇▇▇▇▇ has ever had or now has against the
Company or the Releasees up to and including the Effective Date, including, but
not limited to, claims arising out of or relating to his employment with the
Company and compensation and benefits with the Company, his Employment Agreement
and the separation of his employment from the Company. ▇▇. ▇▇▇▇▇▇ further
agrees, promises and covenants that neither he nor any person, organization, or
other entity acting on his behalf will file, charge, claim, ▇▇▇ or cause or
permit to be filed, charged or claimed, any action for damages or other relief
on his behalf (including injunctive, declaratory, monetary relief or other)
against the Company or any of the Releasees for any liabilities, actions, causes
of action, contracts, agreements, promises, claims and demands of any kind
whatsoever, in law or equity, including attorneys' fees, whether known or
unknown, which he has ever had or now has against the Company or the Releasees
up to and including the Effective Date, including, but not limited to, claims
arising out of or relating to his employment with the Company, compensation and
benefits with the Company, his Employment Agreement and the separation of his
employment from the Company. ▇▇. ▇▇▇▇▇▇ further understands and agrees that this
Agreement and release shall act as a complete bar to any claim, demand or action
of any kind whatsoever which could be brought by and which seeks personal,
equitable or monetary relief for him against the Company or the Releasees up to
and including the Effective Date, including, without limitation, any claim,
demand or action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. ss
2000e, et seq., the Age Discrimination in Employment Act, 29 U.S.C. ss 621,
et seq., the Employee Retirement Income Security Act of 1974, chapters 93A and
151B of the Massachusetts General Laws; all claims of defamation or damage to
reputation; all claims for reinstatement; all claims for punitive or emotional
distress damages; all claims for wages, benefits, bonuses, expenses, severance,
back or front pay or other forms of compensation; all claims for stock or stock
options; and all claims for attorney's fees and costs, and any and all other
federal, state or local statutes, or common laws, except for claims for a breach
of this Agreement and with respect to any benefits in which ▇▇. ▇▇▇▇▇▇ has a
vested interest under the terms and conditions of any of the Company's employee
benefit plans. ▇▇. ▇▇▇▇▇▇ hereby waives and relinquishes any and all rights he
may have under any federal, state or local statute, rule, regulation or
principle of common law or equity which may in any way limit the effect of this
release with respect to claims which he did not know or suspect to exist in his
favor at the time he executed this Agreement.
b. The released claims in Section 3(a) shall not, however, include
any claims to enforce any obligations under this Agreement, and it is further
understood and agreed by the parties that ▇▇. ▇▇▇▇▇▇ is not waiving and hereby
expressly reserves the right to seek payment of the "Special Bonus" discussed in
the second paragraph of Section 4(b) of the Employment Agreement (on p. 2), upon
and under the terms and conditions set forth in Section 4(b) of the Employment
Agreement. The parties hereby agree that all issues, if any, with respect to the
Special Bonus are reserved.
c. ▇▇. ▇▇▇▇▇▇ agrees that other than in an action brought by him
under Section
-8-
9
2(b)(ii) and 3(b), neither he nor any person, organization or entity acting on
his behalf will file, participate, join in, encourage, assist, facilitate or
permit the bringing or maintenance of any claim or cause of action against the
Company or the Releasees relating to ▇▇. ▇▇▇▇▇▇'▇ employment or other matters
arising during his employment with the Company for which he had responsibility,
unless his participation as a witness is called for by a prosecutorial agency or
is required by subpoena or other legal process of which he shall give reasonable
notice to the Company, provided that this paragraph shall not be violated by his
participation in any class action or action brought by the government provided
that he opt out at the first possible opportunity. This Section 3(c) shall not
apply in any situation which conflicts with his ethical obligations under the
rules governing the practice of attorneys in Massachusetts or his interest as an
individual witness or defendant in any investigations or claims which give rise
to such interests.
d. ▇▇. ▇▇▇▇▇▇ agrees that other than as set forth herein, he is not
entitled to any future employment with the Company or any of the Releasees,
whether as an employee, consultant or otherwise, except as set forth in this
Agreement, and that he will not in the future seek any employment with the
Company or any of the Releasees, whether as an employee consultant or otherwise,
except as set forth in this Agreement and the Consultant Agreement.
4. FMC AND FMCAG RELEASE: The Company and FMCAG, and their affiliates,
predecessors, successors, assigns, officers, directors, representatives and
attorneys hereby irrevocably and unconditionally release, acquit and forever
discharge ▇▇. ▇▇▇▇▇▇ and his successors, assigns, agents, representatives and
attorneys, and all persons acting by, through, under or in concert with him
(collectively "Employer's Releasees"), and any of them, from any and all
charges, complaints, claims, liabilities, obligations, promises, agreements,
controversies, damages, actions, causes of action, suits, rights, demands,
costs, losses, debts and expenses (including attorneys' fees and costs actually
incurred), of any nature whatsoever, known or unknown (collectively "Employer's
Released Claims"), which the Company and/or FMCAG now has, owns, or holds, or
claims to have, own, or hold, or which the Company and/or FMCAG at any time had,
owned, or held, or claimed to have, own, or hold against each of any of the
Employer's Releasees from the beginning of time until the Effective Date of this
Agreement. The Employer's Released Claims shall include, without express or
implied limitation, all claims of breach of express or implied contract; all
claims under Massachusetts General Laws chapter 93A; all claims of interference
with contractual or advantageous relations, whether prospective or existing; all
claims of deceit or misrepresentation; all claims of defamation or damage to
reputation; all claims for punitive damages; and all claims for attorney's fees
and costs. The Employer's Released Claims shall not include any claims to
enforce any obligation under this Agreement, and it is further understood and
agreed by the parties that the Company and FMCAG are not waiving and hereby
expressly reserve the right to assert any and all claims and defenses it may
have with respect to the Special Bonus in any proceeding brought by ▇▇. ▇▇▇▇▇▇.
5. NON-DISPARAGEMENT: Each of the Parties agrees that it shall not issue
any communication, written, verbal or otherwise, that disparages any other party
including with respect
-9-
10
to ▇▇. ▇▇▇▇▇▇'▇ job performance or his employment as Senior Vice President and
General Counsel of FMC or which encourage any adverse action, provided that the
parties shall testify truthfully under oath pursuant to a subpoena and/or Court
order or other valid legal process. There will be no liquidated damages for any
breach of this clause and ▇▇▇ ▇▇▇▇▇ will not have any personal liability under
this Section 5 unless Massachusetts law permits the imposition of personal
liability and a breach is proven in a court of law to have been engaged in by
▇▇. ▇▇▇▇▇ himself.
6. INDEMNIFICATION: The Company and FMCAG agree to indemnify ▇▇. ▇▇▇▇▇▇
and hold him harmless from any and all claims against ▇▇. ▇▇▇▇▇▇ arising out of
his employment with NMC or with the Company, arising out of his position as
Senior Vice President, arising out of his position as member of the Board of the
Company, arising out of his position as officer, director, or shareholder of any
affiliate of the Company or FMCAG, arising out of his Consulting Agreement, or
arising out of any combination or all of the above. The Company agrees that ▇▇.
▇▇▇▇▇▇ shall be entitled to retain counsel, consultants, and expert witnesses in
connection with the defense of, or his involvement in, any such claims, and
agrees to indemnify ▇▇. ▇▇▇▇▇▇ for any resulting reasonable attorney's fees,
reasonable consultants' fees, and reasonable expert witness fees. The Company
represents and warrants that, at all times during ▇▇. ▇▇▇▇▇▇'▇ employment, ▇▇.
▇▇▇▇▇▇ has been covered by the Company's Directors' and Officers' Insurance
which is and has been good and sufficient in light of known or anticipated
claims. The Company further represents and warrants that such coverage for ▇▇.
▇▇▇▇▇▇ will remain in place, for the period during which ▇▇. ▇▇▇▇▇▇ might remain
exposed to such claims.
7. COOPERATION AND ASSISTANCE: ▇▇. ▇▇▇▇▇▇ acknowledges that he may have
historical information or knowledge which may be useful to the Company in
connection with current or future legal, regulatory or administrative
proceedings. ▇▇. ▇▇▇▇▇▇ will cooperate with the Company in the defense or
prosecution of any such claims which relate to events or occurrences that
transpired during ▇▇. ▇▇▇▇▇▇'▇ employment with the Company. ▇▇. ▇▇▇▇▇▇'▇
cooperation in connection with such claims or actions shall include being
reasonably available to meet with counsel to prepare for discovery or trial and
to testify truthfully as a witness when reasonably requested by the Company at
reasonable times and with reasonable advance notice to ▇▇. ▇▇▇▇▇▇. The Company
shall promptly reimburse ▇▇. ▇▇▇▇▇▇ for any out-of-pocket expenses, including
▇▇. ▇▇▇▇▇▇'▇ personal attorney's fees, that he incurs in connection with such
cooperation. The Company shall also provide ▇▇. ▇▇▇▇▇▇ with compensation on an
hourly basis at the rate of three hundred fifty dollars ($350.00) per hour for
such requested cooperation, including preparation time. The Company agrees that
time spent by ▇▇. ▇▇▇▇▇▇ in fulfilling his obligations under this Section 7
shall not involve the OIG Investigation defense or any related litigation
matters, which services are governed exclusively by Section 2(h) of this
Agreement. ▇▇. ▇▇▇▇▇▇ shall not be obligated to provide such cooperation which
conflicts with his ethical obligations under the rules governing the practice of
attorneys in Massachusetts.
8. NOTICE OF PUBLIC INFORMATION RELEASE: For a period of two (2) years
commencing on the Effective Date, the Company and FMCAG agree that at least two
(2) days before dissemination
-10-
11
it will provide ▇▇. ▇▇▇▇▇▇ with a copy of any information to be released by the
Company and FMCAG publicly that references ▇▇. ▇▇▇▇▇▇, his employment, or ▇▇.
▇▇▇▇▇▇'▇ involvement in the Investigation, including, but not limited to, any
SEC filing, Investor Communication, or press statement (collectively
"▇▇. ▇▇▇▇▇▇-Related Statements"). Any inaction by ▇▇. ▇▇▇▇▇▇ shall not affect
the Company's obligations under Section 5.
9. OUTPLACEMENT BENEFITS: For a period of one year following the
Separation Date the Company will provide ▇▇. ▇▇▇▇▇▇ with
executive/professional-level out-placement at a firm to be agreed upon by the
parties, with the Company's consent to the selection of a firm by ▇▇. ▇▇▇▇▇▇ not
to be unreasonably withheld.
10. LETTER OF REFERENCE: Within fourteen (14) days of the Separation Date,
the Company will provide ▇▇. ▇▇▇▇▇▇ with a mutually acceptable, written, letter
of reference.
11. UNEMPLOYMENT BENEFITS: The Company agrees that it will not protest any
claim ▇▇. ▇▇▇▇▇▇ may file for unemployment compensation.
12. PAYMENTS TO ESTATE: Should ▇▇. ▇▇▇▇▇▇ die, any payments remaining
unpaid under this Agreement at the time of his death, shall be paid to his
estate.
13. RETURN OF PROPERTY: ▇▇. ▇▇▇▇▇▇ expressly agrees that by the Separation
Date he will return to the Company all property of the Company including, but
not limited to, any and all files, computers, computer equipment and software
and diskettes, documents, papers, records, accords, notes, agenda, memoranda,
plans, calendars and other books and records of any kind and nature whatsoever
containing information concerning the Company or its customers or operations.
▇▇. ▇▇▇▇▇▇ affirms that he has not retained and will not retain copies of any
such property or other materials. It is agreed that as the only exception to
this Section 13, ▇▇. ▇▇▇▇▇▇ may retain one copy of his own attorney work product
and any other documents covered under Massachusetts Rules of Professional
Conduct Rule 1.16, and at the request of the Company ▇▇. ▇▇▇▇▇▇ has agreed to
and will provide a list of all such documents to the Company within a reasonable
period of time of the Separation Date. ▇▇. ▇▇▇▇▇▇ agrees that he will not
disclose such retained documents to any other individual or entity without the
written permission of the Company, except as permitted under the ethical rules
governing the practice of law in the Commonwealth of Massachusetts. At ▇▇.
▇▇▇▇▇▇'▇ request, the Company shall provide, at its own expense, secretarial,
paralegal and other assistance to ▇▇. ▇▇▇▇▇▇ to prepare the list.
14. NON-DISCLOSURE: ▇▇. ▇▇▇▇▇▇ agrees that he has not, except in
performing his duties, and will not at any time hereafter directly or indirectly
publish, disclose, market or use, or authorize, advise, hire, counsel or
otherwise procure any other person or entity, directly or indirectly, to
publish, disclose, market or use, any trade secret or other information of a
confidential or proprietary nature of the Company ("Trade Secrets"), whether
patentable or nor, of which he became aware or informed during this employment
with the Company. ▇▇. ▇▇▇▇▇▇ may,
-11-
12
however, comply with legal process, provided he (i) gives the Company prompt
notice of the date any disclosure must be made to enable the Company to respond
to any such process, and (ii) waits until the last possible date to make any
such disclosure.
14. NON-DISCLOSURE: ▇▇. ▇▇▇▇▇▇ acknowledges and affirms that he continues
to be bound and will abide by, and following the Separation Date will continue
to be bound and abide by, the nondisclosure provisions contained in Paragraph 6
of the Employment Agreement.
15. NO ADMISSION: Nothing in this Agreement shall be deemed to constitute
an admission or evidence of any wrongdoing or liability on the part of the
Company or ▇▇. ▇▇▇▇▇▇ and the parties agree that neither this Agreement nor any
of the terms or conditions contained herein other than as set forth in Section
16, may be used in any future dispute or proceeding except one to enforce the
terms of this Agreement, and except if the parties agree in writing.
16. CONFIDENTIALITY: ▇▇. ▇▇▇▇▇▇ agrees that he will keep confidential the
terms of this Agreement, and agrees that he will not disclose its terms to
anyone other than members of his immediate family, counsel and tax advisors who
must also each agree prior to such disclosure to them to keep the terms of this
Agreement confidential, or as required by law, or as permitted by the ethical
rules governing the practice of law in the Commonwealth of Massachusetts, or as
requested by a government taxing authority. The Company shall also treat this
Agreement as confidential and shall not disclose it to persons other than those
required for its approval and proper implementation within the Company, and to
its counsel and tax advisors or as required by law or regulation or to
government taxing authorities, provided that it is agreed that as the only
exceptions to this Section 16, ▇▇. ▇▇▇▇▇▇ and the Company may disclose (i) that
▇▇. ▇▇▇▇▇▇ has separated from the Company, (ii) that this was a mutually
agreeable separation, (iii) that ▇▇. ▇▇▇▇▇▇ has been retained as a consultant,
(iv) that ▇▇. ▇▇▇▇▇▇'▇ rate as a consultant is $500.00 per hour and (v) that all
issues regarding ▇▇. ▇▇▇▇▇▇'▇ Special Bonus have been reserved.
17. BINDING NATURE OF AGREEMENT: This Agreement shall be binding upon each
of the Parties and upon their heirs, administrators, representatives, executors,
successors and assigns, and shall inure to the benefit of each party and to
their heirs, administrators, representatives, executors, successors and assigns.
18. NO ORAL MODIFICATION: This Agreement may not be changed orally and no
modification, amendment or waiver of any provision contained in this Agreement,
or any future representation, promise or condition in connection with the
subject matter of this Agreement shall be binding upon any party hereto unless
made in writing and signed by such party.
19. ENTIRE AGREEMENT: Pursuant to Section 2(h) of this Agreement, the
parties contemplate executing a Consulting Agreement incorporating the terms set
forth in Section 2(h). This Agreement will incorporate that Consulting Agreement
upon execution of that Consulting Agreement, and will then contain the entire
agreement between the parties and supersede any and
-12-
13
all previous agreements of any kind whatsoever between them, whether written or
oral. All prior and contemporaneous discussions and negotiations have been and
will then be merged and integrated into, and be superseded by, this Agreement.
This is an integrated document.
20. SEVERABILITY: In the event that any provision of this Agreement or the
application thereof should be held to be void, voidable, unlawful or, for any
reason, unenforceable, the remaining portion and application shall remain in
full force and effect, and to that end the provisions of this Agreement are
declared to be severable.
21. GOVERNING LAW: This Agreement is made and entered into, and shall be
subject to, governed by, and interpreted in accordance with the laws of the
Commonwealth of Massachusetts and shall be fully enforceable in the courts of
that state, without regard to principles of conflict of laws. The Parties
(i) agree that any suit, action or other legal proceeding arising out of this
Agreement may be brought in the United States District Court for the District of
Massachusetts, or if such court does not have jurisdiction or will not accept
jurisdiction, in any court of general jurisdiction in Suffolk County,
Massachusetts; (ii) consent to the jurisdiction of any such court; and
(iii) waive any objection which they may have to the laying of venue in any such
court. The parties also consent to the service of process, pleadings, notices or
other papers by regular mail, addressed to the party to be served, postage
prepaid, and registered or certified with return receipt requested.
22. NOTICES: All notices, requests, consents, approvals and other
communications required or permitted under this Agreement ("Notices") shall be
in writing and shall be delivered to the addresses listed below, by mail, by
hand, or by facsimile transmission, unless otherwise provided in this Agreement.
Such Notices shall be effective (i) if sent by mail, three business days after
mailing; (ii) if sent by hand, on the date of delivery; and (iii) if sent by
facsimile, on the date indicated on the facsimile confirmation. A copy of any
Notice sent by facsimile shall also be sent by express air mail or overnight
mail on the date such Notice is transmitted by facsimile.
In the case of ▇▇. ▇▇▇▇▇▇:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Holland & Knight LLP
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-▇▇-
▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
In the case of Fresenius Medical Care Holdings, Inc. and Fresenius Medical
Care AG:
Fresenius Medical Care Holdings, Inc. and
Fresenius Medical Care AG
c/o Fresenius Medical Care Holdings, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇'▇▇▇▇▇▇▇, Vice President Human Resources
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
and
Fresenius Medical Care AG
▇▇▇▇-▇▇▇▇▇▇-▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ v.d.H.
Germany
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Any party may change its address or facsimile number for notification
purposes by giving the other parties notice, in accordance with the notice
provisions set forth in this Section, of the new address or facsimile number and
the date upon which it will become effective.
23. NO ASSIGNMENT: Neither this Agreement nor any portion hereof is
assignable. The Parties represent, warrant and covenant that they have not
previously assigned or transferred, or purported to assign or transfer, to any
individual or entity, any of the rights being released herein, and agree that no
such assignment or transfer may occur without a written consent executed by both
parties, and any attempt to do so shall be void.
24. COUNTERPARTS: This Agreement may be executed in counterparts, and each
-14-
15
counterpart, when executed, shall have the effect of a signed original.
25. ACKNOWLEDGMENT OF KNOWING AND VOLUNTARY RELEASE: ▇▇. ▇▇▇▇▇▇ certifies
that he has read the terms of this Agreement. The execution hereof by ▇▇. ▇▇▇▇▇▇
shall indicate that this Agreement conforms to ▇▇. ▇▇▇▇▇▇'▇ understandings and
is acceptable to him as a final agreement. It is further understood and agreed
that ▇▇. ▇▇▇▇▇▇ has been advised of the opportunity to consult with counsel of
his choice and that he has been given a reasonable and sufficient period of time
of no less than 21 days in which to consider and return this document. It is
further agreed and understood that upon ▇▇. ▇▇▇▇▇▇'▇ execution and return of
this document he is thereafter permitted to revoke the Agreement at any time
during a period of seven (7) days following his execution hereof. This agreement
shall not be effective until the seven day revocation period has expired. To be
effective, the revocation must be in writing and must be hand-delivered or
telecopied to counsel for the Company within the seven-day period.
WHEREFORE, intending to be legally bound, the parties have agreed to the
aforesaid terms and indicate their agreement by signing below.
[PLEASE READ CAREFULLY. THIS AGREEMENT IS A LEGAL DOCUMENT AND INCLUDES A
RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS, INCLUDING, WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, ALL CLAIMS ARISING UNDER TITLE VII OF THE CIVIL
RIGHTS ACT OF 1964, AS AMENDED, THE AGE DISCRIMINATION IN EMPLOYMENT ACT, AS
AMENDED, THE EMPLOYEE RETIREMENT INCOME SECURITY ACT, AS AMENDED, AND CHAPTERS
93A AND 151B OF THE MASSACHUSETTS GENERAL LAWS.
BY SIGNING THIS AGREEMENT I ACKNOWLEDGE AND AFFIRM THAT I AM COMPETENT, THAT I
HAVE BEEN AFFORDED A TIME PERIOD OF 21 DAYS TO REVIEW AND CONSIDER THIS
AGREEMENT AND HAVE BEEN ADVISED TO DO SO WITH AN ATTORNEY OF MY CHOICE. THAT I
HAVE READ AND UNDERSTAND AND ACCEPT THIS DOCUMENT AS FULLY AND FINALLY WAIVING
AND RELEASING ANY AND ALL CLAIMS, DEMANDS, DISPUTES AND ANY DIFFERENCES OF ANY
KIND WHATSOEVER WHICH I MAY HAVE HAD OR NOW HAVE AGAINST THE COMPANY ARISING OUT
OF OR RELATING TO MY EMPLOYMENT WITH THE COMPANY, COMPENSATION AND BENEFITS WITH
THE COMPANY, SEPARATION FROM EMPLOYMENT OR OTHERWISE, EXCEPT AS PROVIDED HEREIN,
THAT NO REPRESENTATIONS, PROMISES OR INDUCEMENTS HAVE BEEN MADE TO ME EXCEPT AS
SET FORTH IN THIS AGREEMENT, AND THAT I HAVE SIGNED THIS DOCUMENT FREELY AND
VOLUNTARILY, INTENDING TO BE LEGALLY BOUND BY ITS TERMS, AND WITH FULL
UNDERSTANDING OF ITS CONSEQUENCES.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-15-
16
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ __________________
---------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Date
FRESENIUS MEDICAL CARE HOLDINGS, INC.
d/b/a FRESENIUS MEDICAL CARE NORTH AMERICA
By: /s/ ▇▇▇ ▇▇▇▇▇ _________________
-------------
▇▇▇ ▇▇▇▇▇, Chief Executive Officer Date
FRESENIUS MEDICAL CARE AG
By: /s/ ▇▇▇ ▇▇▇▇▇ ________________
-------------
▇▇▇ ▇▇▇▇▇, Chairman and Date
Chief Executive Officer
By /s/ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇ ________________
--------------------
ppa. ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇ Date
General Counsel
Senior Vice President
-16-
