EXHIBIT 99.5
RELEASE
This Release ("Release") is entered into as of this 27th day of
November, 2001, by and between Xxxx X. Xxxxxx ("Employee"), on the one hand, and
PrimeSource Healthcare, Inc., a Massachusetts corporation ("Company"), on the
other hand (collectively, the "Parties").
WHEREAS, Employee's employment as Executive Vice President, Corporate
Development ended on the Termination Date, as defined in the Agreement attached
hereto (the "Agreement");
WHEREAS, the Company and the Employee have entered into the Agreement,
which provides that the Employee is entitled to receive certain severance
payments and other benefits (the "Severance Payments") upon termination of
employment and execution of this Release;
WHEREAS, Employee desires to accept the Severance Payments in exchange
for a knowing and voluntary release of all claims Employee may have against the
Company arising out of or relating to Employee's employment with, and
termination from, the Company;
NOW, THEREFORE, in consideration of the promises and mutual covenants
contained in the Agreement and herein, and for other good and valuable
consideration, the receipt and sufficiency of which are expressly acknowledged,
the Parties agree as follows:
1. SPECIAL RELEASE.
a. Employee's Release of Claims. In consideration for the Severance
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Payments, Employee hereby forever releases and discharges the Company, its
parent and subsidiary corporations, their respective affiliates, and their
respective past and present officers, directors, shareholders, partners,
members, managers, agents and employees, and each of their respective successors
and assigns (collectively, "Released Parties"), from any and all claims,
charges, complaints, liens, demands, causes of action, obligations, damages and
liabilities, known or unknown, suspected or unsuspected, that Employee had, now
has, or may hereafter claim to have against the Released Parties, arising out of
or relating in any way to Employee's hiring by, employment with, or separation
from the Company or otherwise relating to any of the Released Parties from the
beginning of time through the Effective Date. The "Effective Date" is the date
this Release is executed by the Employee. This release specifically extends to,
without limitation, claims or causes of action for wrongful termination,
impairment of ability to compete in the open labor market, breach of an express
or implied contract, breach of the covenant of good faith and fair dealing,
breach of fiduciary duty, fraud, misrepresentation, defamation, slander,
infliction of emotional distress, discrimination, harassment, disability, loss
of future earnings, and claims under any state constitution, the United States
Constitution, and applicable state and federal fair employment laws, applicable
state and federal equal employment opportunity laws, and applicable state and
federal labor statutes and regulations, including but not limited to, the Civil
Rights Act of 1964, as amended, the Fair Labor Standards Act, as amended, the
National Labor Relations Act, as amended, the Labor-Management Relations Act, as
amended, the Worker Retraining and Notification Act of 1988, as amended, the
Americans With Disabilities Act of 1990, as amended, the Rehabilitation Act of
1973, as amended, and the Employee Retirement Income Security Act of 1974, as
amended and the Age Discrimination in Employment Act of 1967, as amended.
b. Employee's Release of Unknown Claims. Employee expressly waives all
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rights and claims that he knows about or suspects as well as those he may not
know about or suspect, including those afforded by applicable law. For the
purpose of implementing a full and complete release and discharge of the
Released Parties, Employee expressly acknowledges that this Release is intended
to include and does include in its effect, without limitation, all claims which
he does not know or suspect to exist in his favor against the Released Parties
as of the Effective Date, and that this Release expressly contemplates the
extinguishment of all such claims, including, but not limited to, any and all
claims under any applicable federal, state or local law.
c. Employee's Claims Not Released. Notwithstanding anything in this
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Release to the contrary, Employee does not release any right or claim (i) that
is nonwaivable as a matter of law; (ii) for unemployment compensation; (iii) to
enforce any rights or to obtain any benefits under Section 4980B of the Internal
Revenue Code of 1986, as amended; (iv) under applicable workers' compensation
law; (v) to enforce, or seek relief as a result of an alleged breach of the
Agreement; (vi) to indemnification from or by the Company or any of the Released
Parties in favor of Employee or for the benefit of Employee for his acts or
omissions while an officer or director of the Company, whether statutory,
contractual or otherwise, including, without limitation, as set forth in the
corporate by-laws or charter; (vii) to coverage under any insurance policy
maintained by the Company or the Released Parties covering acts or omissions of
the officers and directors of the Company or the Released Parties; or (viii)
arising solely from Employee's status as a shareholder of the Company or the
Released Parties.
d. Review and Revocation Period. Employee acknowledges that the Company
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has advised Employee that pursuant to the Age Discrimination in Employment Act
of 1967, as amended, he may consult with an attorney of Employee's choosing
prior to signing this Release and that Employee has twenty-one (21) days during
which to consider the provisions of this Release, although Employee may sign and
return it sooner. If Employee executes and returns this Release prior to the
expiration of such twenty-one (21) day period, Employee acknowledges that he has
had sufficient time to consider the terms of this Release with counsel and that
he expressly, voluntarily and knowingly waives the remainder of such twenty-one
(21) day period. Employee further acknowledges that Employee has been advised by
the Company that Employee has the right to revoke this Release for a period of
seven (7) days after signing it and that this Release shall not become effective
or enforceable until such seven (7)-day revocation period has expired. Employee
acknowledges and agrees that if Employee wishes to revoke this Release, Employee
must do so in writing, and that such revocation must be signed by Employee and
received by Xxxx Xxxxxx, Chief Restructuring Officer, no later than 5:00 p.m.
Arizona time on the seventh (7th) day after Employee has signed this Release.
Employee acknowledges and agrees that, in the event that Employee revokes this
Release, Employee shall have no right to receive any benefits hereunder,
including the Severance Payments, and if so revoked, this Release and the
Agreement shall be of no force or effect.
e. Company's Release of Claims. The Company and its affiliates, hereby
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knowingly and voluntarily, fully and finally releases, acquits and forever
discharges Employee and his heirs, executors and administrators (the "Employee
Released Parties") from any and all claims, charges, complaints, liens, demands,
causes of action, obligations, damages and liabilities, known or unknown,
suspected or unsuspected, that the Company and its affiliates, had, now has, or
may hereafter claim to have against the Employee Released Parties, arising out
of or relating in any way to Employee's hiring by, employment with, or
separation from the Company and its affiliates, or otherwise relating to any of
the Employee Released Parties from the beginning of time through the date the
Company and its affiliates, signs this Release.
f. Company's Release of Unknown Claims. Company and its affiliates,
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expressly waives all known or suspected rights and claims as well as those not
known or not suspected, including those afforded by applicable law. For the
purpose of implementing a full and complete release and discharge of the
Employee Released Parties, Company and its affiliates, expressly acknowledges
that this Release is intended to include and does include in its effect, without
limitation, all claims which are not known or suspected to exist in the Company
and its affiliate's favor against the Employee Released Parties at the time this
Release is signed by the Company and its affiliates, and that this Release
expressly contemplates the extinguishment of all such claims, including, but not
limited to, any and all claims under any applicable federal, state or local law.
2. NO DISPARAGEMENTS. Employee agrees not to make any untruthful oral or
written, public or private statements that are disparaging of the Company or of
the Released Parties.
3. NON-ADMISSION OF LIABILITY. Nothing in this Release shall be construed
as an admission of liability by Employee or the Released Parties; rather,
Employee and the Released Parties are resolving their employer-employee
relationship and all other relationships between Employee and the Released
Parties, as to each of which each of the Released Parties and Employee denies
any liability.
4. CONFIDENTIALITY. Employee covenants and agrees that neither he nor his
attorneys or representatives shall reveal to anyone (except accountants for
income tax and audit purposes and other attorneys for purposes of the
enforcement of the Agreement or this Release) any of the terms of the Agreement
or this Release, except as may be mutually agreed upon in writing or otherwise
required by law or court order. Violation of this covenant may result in
forfeiture of the Severance Payments.
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5. BINDING EFFECT. This Release shall be binding upon the Parties and
their respective heirs, administrators, representatives, executors, successors
and assigns, and shall inure to the benefit of the Parties and their respective
heirs, administrators, representatives, executors, successors and assigns.
6. SEVERABILITY. While the provisions contained in this Release are
considered by the Parties to be reasonable in all circumstances, it is
recognized that provisions of the nature in question may fail for technical
reasons and, accordingly, it is hereby agreed and declared that if any one or
more of such provisions shall, either by itself or themselves or taken with
others, be adjudged to be invalid as exceeding what is reasonable in all
circumstances for the protection of the interests of the Company, but would be
valid if any particular restrictions or provisions were deleted or restricted or
limited in a particular manner, then the said provisions shall apply with any
such deletions, restrictions, limitations, reductions, curtailments, or
modifications as may be necessary to make them valid and effective.
7. ENTIRE AGREEMENT/MODIFICATION. This Release and the Agreement
constitute the entire understanding among the Parties and may not be modified
without the express written consent of the Parties. In addition, this Release
supersedes all other prior written and/or oral and all contemporaneous oral
agreements regarding the subject matter hereof.
8. VOLUNTARY AGREEMENT/NO INDUCEMENTS. BY SIGNING THIS RELEASE, EMPLOYEE
ACKNOWLEDGES AND AGREES THAT EMPLOYEE HAS READ THIS RELEASE, HAS HAD SUFFICIENT
OPPORTUNITY TO CONSULT WITH LEGAL COUNSEL OF EMPLOYEE'S CHOOSING PRIOR TO
SIGNING IT, AND EMPLOYEE DOES NOT RELY, AND HAS NOT RELIED, ON ANY FACT,
REPRESENTATION, STATEMENT OR ASSUMPTION OTHER THAN AS SPECIFICALLY SET FORTH IN
THIS RELEASE. EMPLOYEE FURTHER ACKNOWLEDGES AND AGREES THAT EMPLOYEE UNDERSTANDS
EACH OF THE TERMS OF THIS RELEASE AND EMPLOYEE IS ENTERING INTO THIS RELEASE
FREELY, KNOWINGLY, VOLUNTARILY, AND WITHOUT COERCION.
EMPLOYEE
/s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
Dated this 27th day of November, 2001.
PRIMESOURCE HEALTHCARE, A MASSACHUSETTS CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxx
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Xxxxxxxx X. Xxxxxx
Chief Restructuring Officer
Dated this 27th day of November, 2001.
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