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EXHIBIT 10.11
SEPARATION AGREEMENT
This Agreement is entered into as of this 31st day of January, 2001 (the
"Effective Date") between Xxxxx X. Xxxxx ("Xx. Xxxxx"), who currently resides at
0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000, and Fresenius Medical Care Holdings,
Inc., d/b/a Fresenius Medical Care North America, with its principal offices
located at 00 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000 ("FMC" or the
"Company").
WITNESSETH:
WHEREAS, on October 23, 1998, Xx. Xxxxx 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, Xx. Xxxxx and FMC now desire to enter into an agreement concerning
the separation of Xx. Xxxxx from FMC.
NOW THEREFORE, in consideration of the mutual promises contained in this
Agreement, Xx. Xxxxx and FMC (the "Parties") agree as follows:
1) SEPARATION: The Parties agree that Xx. Xxxxx shall continue to work for and
be an employee of the Company through and including January 31, 2001 (the
"Separation Date"), and that until he ceases to be an employee of the
Company, Xx. Xxxxx shall continue to hold the position of Executive Vice
President. FMC represents and Xx. Xxxxx agrees that the termination of Xx.
Xxxxx'x employment is not a termination for cause, as set forth in Section
6(a) of the Employment Agreement. Instead, the parties have mutually agreed
to end their current relationship in accordance with Section 6(d) of the
Employment Agreement on the terms and conditions set forth herein.
2) CONSIDERATION TO XX. XXXXX: The Company shall make the following payments
and provide the following additional consideration to Xx. Xxxxx:
a) SALARY AND BENEFITS CONTINUATION: Upon the separation of Xx. Xxxxx'x
employment with the Company, the Company agrees to pay Xx. Xxxxx all
accrued but unpaid base salary through January 31, 2001. In addition,
the Company agrees to the following:
i) SALARY. The Company agrees that beginning February 1, 2001
through January 31, 2003, Xx. Xxxxx shall receive continuation of
his salary at an annual rate of Five Hundred Sixty Nine Thousand,
Four Hundred Forty Dollars ($569,440) from which all applicable
withholdings shall be made. This two (2) year "Salary
Continuation" period will be paid out over twenty-six (26) pay
periods for each year. At FMC's option, the Company may elect to
provide the Salary Continuation referenced in this Section
2(a)(i) in a lump sum (the "Lump Sum Election"), in which event
Xx. Xxxxx shall forego the continuation of his life insurance and
medical benefits provided in Section 2(a)(ii).
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ii) MEDICAL AND DENTAL COVERAGE, AND LIFE INSURANCE; NO LUMP SUM
ELECTION. For as long as Xx. Xxxxx is receiving the Salary
Continuation, and provided that Xx. Xxxxx has not received the
Lump Sum payment, the Company agrees that Xx. Xxxxx shall
receive continuation at the Company's expense of any coverage
under FMC's medical and dental plans, such coverage to be
provided to Xx. Xxxxx on the same basis and to the same extent
as the coverage provided Xx. Xxxxx during his employment,
subject to any plan changes made during such Salary Continuation
period that also apply to all other participants in such plans.
Xx. Xxxxx'x 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 payment) may be arranged through the Corporate Human
Resources Department.
iii) MEDICAL AND DENTAL COVERAGE, AND LIFE INSURANCE; LUMP SUM
ELECTION. In the event that Xx. Xxxxx receives the Lump Sum
payment 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 Xx. Xxxxx shall have the right
to elect to pay for coverage himself under COBRA. FMC will send
Xx. Xxxxx the documents necessary for such COBRA election.
iv) LONG AND SHORT TERM DISABILITY BENEFITS. Xx. Xxxxx'x long and
short term disability benefits shall cease as of January 31,
2001.
v) 401(k) PLAN. Contributions to FMC's 401(k) Plan may be withdrawn
from the plan by Xx. Xxxxx following Xx. Xxxxx'x termination of
employment. Xx. Xxxxx may not make contributions to the Plan
during the Salary Continuation period.
vi) PENSION PLAN. Xx. Xxxxx will stop accruing benefit service under
the Pension Plan effective January 31, 2001.
vii) DEFERRED COMPENSATION PLAN. Xx. Xxxxx'x account balance under
the Deferred Compensation Plan will be paid to him within sixty
(60) days of the Separation Date.
viii) TAX PREPARATION. Xx. Xxxxx shall be reimbursed for expenses
associated with individual income tax preparation up to a total
of $2,000 per year for the years 1999 and 2000.
ix) LEGAL FEES. Xx. Xxxxx shall be entitled to reimbursement for
legal fees incurred in connection with this Separation Agreement
pursuant to paragraph 8 of the Employment Agreement.
b) STOCK OPTIONS: Xx. Xxxxx shall also on the Separation Date be vested
in Options consisting of Sixty Thousand (60,000) Fresenius Medical
Care AG Preference Shares. The Company and FMCAG agree that, as
provided in Xx. Xxxxx'x Employment Agreement, Xx. Xxxxx is granted up
to one (1) year from the Separation Date in which to exercise the
Vested Options, PROVIDED that Xxx Xxxxx, or his successor, will
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 Xx. Xxxxx be
granted two (2) years from the date of this Agreement to exercise such
Vested Options.
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c) VACATION/PTO TIME: Xx. Xxxxx 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.
d) EXPENSE REIMBURSEMENT: The Company acknowledges that Xx. Xxxxx 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 Xx. Xxxxx within ten (10) business days of the
submission of documented proof of such expenses to Xxxxx X'Xxxxxxx,
Vice President of Human Resources.
3) MUTUAL RELEASE: The Company and its affiliates, predecessors, successors,
assigns, officers, directors, representatives and attorneys (the "Employer
Parties") hereby irrevocably and unconditionally release, acquit and
forever discharge Xx. Xxxxx and his successors, assigns, representatives
and attorneys, and all persons acting by, through, under or in concert with
him (collectively "Employee Parties"), 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 attorney's fees and costs
actually incurred), of any nature whatsoever, known or unknown
(collectively "Employer Claims"), which the Employer Parties now have, own,
or hold, or claim to have, own, or hold, or which the Employer Parties at
any time had, owned, or held, or claimed to have, own, or hold against each
or any of the Employee Parties from the beginning of time until the
Effective Date of this Agreement other than any Employer Claims arising
with respect (i) to this Separation Agreement, the Loan Agreement and Form
of Note attached as Exhibit A hereto and incorporated by reference herein,
and any agreements executed in connection or simultaneously herewith, and
(ii) that certain Non-Disclosure and Non-Competition Agreement dated as of
October 23, 1998 between FMC and Xx. Xxxxx (the "Non-Disclosure and
Non-Competition Agreement").
The Employee Parties hereby irrevocably and unconditionally release, acquit
and forever discharge the Employer Parties 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 attorney's fees and costs
actually incurred), of any nature whatsoever, known or unknown
(collectively "Employee Claims"), which the Employee Parties now have, own,
or hold, or claim to have, own, or hold, or which the Employee Parties at
any time had, owned, or held, or claimed to have, own, or hold against each
or any of the Employer Parties from the beginning of time until the
Effective Date of this Agreement other than any Employee Claims arising
with respect (i) to this Separation Agreement and any agreements executed
in connection or simultaneously herewith, and (ii) the Non-Disclosure and
Non-Competition Agreement.
4) UNEMPLOYMENT BENEFITS: The Company agrees that it will not protest any
claim Xx. Xxxxx may file for unemployment compensation.
5) RETURN OF PROPERTY: Xx. Xxxxx expressly agrees that by the Separation Date
he will return to the Company, and will not retain copies of, 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, other than copies of materials
that are available to the general public and materials that came into Xx.
Xxxxx'x possession outside the scope of his employment with the Company.
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6) NON DISCLOSURE: Xx. Xxxxx acknowledges and affirms that he continues to be
bound and will abide by the provisions of the Non-Disclosure and
Non-Competition Agreement .
7) BINDING NATURE OF AGREEMENT: This Agreement shall be binding upon each of
the Parties and upon their heirs, administrators, representatives,
executors, successors and permitted assigns, and shall inure to the benefit
of each party and to their heirs administrators, representatives,
executors, successors and permitted assigns.
8) 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 not be binding upon any
party hereto unless made in writing and signed by such party.
9) 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.
10) 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.
11) 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.
In the case of Xx. Xxxxx:
Xxxxx X. Xxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Phone: 000 000-0000
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In the case of Fresenius Medical Care Holdings, Inc.:
Fresenius Medical Care Holdings, Inc.95 Hayden Avenue
Lexington, Massachusetts 02420
Attention: Xxxxxx X. Xxxxxxxx, Senior Vice President and General Counsel
Phone: 000 000-0000
FAX: 000 000-0000
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.
12) NO ASSIGNMENT: Neither this Agreement nor any portion hereof is assignable,
except with the prior written consent of the other Party. 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.
13) COUNTERPARTS, ENTIRE AGREEMENT: This Agreement may be executed in
counterparts, and each counterpart, when executed, shall have the effect of
a signed original. This Agreement constitutes the entire agreement between
the parties, with the exception of the Non-Disclosure and Non-Competition
Agreement, and supersedes all existing agreements between them, whether
oral or written, with respect to the subject matter hereof.
14) ACKNOWLEDGMENT OF REVOCATION RIGHTS. Xx. Xxxxx certifies that he has read
the terms of this Agreement. The execution hereof by Xx. Xxxxx shall
indicate that this Agreement conforms to Xx. Xxxxx'x understandings and is
acceptable to him as a final agreement. It is further understood and agreed
that Xx. Xxxxx 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 that twenty one (21) days in which to consider and
return this document. It is further agreed and understood that upon Xx.
Xxxxx'x 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 (7) day revocation period has expired, but upon expiration of
such period shall be effective as of the Effective Date. To be effective,
the revocation must be in writing and must be hand-delivered or telecopied
to counsel for the Company within the seven (7) day period.
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WHEREFORE, intending to be legally bound, the parities 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 CHAPTER 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 TWENTY ONE (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
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.
XXXXX X. XXXXX
/s/ Xxxxx X. Xxxxx 2-12-01
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Date
FRESENIUS MEDICAL CARE HOLDINGS, INC.
d/b/a FRESENIUS MEDICAL CARE NORTH AMERICA
/s/ Xxxxxx X. Xxxxxxxx 2-12-01
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By: Xxxxxx X. Xxxxxxxx, Senior Vice President
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Exhibit A
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