SEPARATION AND SETTLEMENT AGREEMENT
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THIS AGREEMENT is entered into between PHYMATRIX CORP., (hereinafter "the
Company") and Xxxxx Xxxxxxx (hereinafter "Tidikis") as of April 30, 1998.
W I T N E S S E T H:
WHEREAS, Tidikis was employed by the Company as Chief Operating Officer;
and,
WHEREAS, the parties hereto wish to enter into this Agreement for the
purpose of providing a full and final settlement and resolution of all matters
arising out of or pertaining to that employment relationship and its
termination, whether past, present or future;
THEREFORE, in consideration of the mutual promises and undertakings
contained herein and for such other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties do hereby agree as
follows:
1. Termination of Employment. Tidikis' employment with the Company shall
terminate effective as of April 30, 1998 (hereinafter the "Termination Date").
Tidikis shall resign his positions as officer of the Company and officer and/or
director of all of the Company's affiliates, effective April 30, 1998. On and
after the termination date, Tidikis shall be employed by the Company, in a
non-officer position, on a part-time basis for the period of May 1, 1998 through
April 30, 1999.
2. Compensation. Providing that he complies with all of the term of this
Agreement and his employment with the Company and in consideration for his past
performance with the Company, Tidikis shall receive a bonus in the amount of One
Hundred Ninety Two Thousand Dollars ($192,000.00) less applicable taxes and
statutory deductions, to be paid on May 1, 1998. Payment of this amount shall
be contingent upon, among other things, execution by Tidikis of a general
release for the period from the date of execution of this Agreement through
April 30, 1998, in accordance with the terms set forth in Section 4 below.
Additionally, Tidikis shall receive payment in the amount of Ninety Eight
Thousand Dollars ($98,000.00) in equal semi-monthly amounts of $4,083.33, less
applicable taxes and statutory deductions, in accordance with the regular
payment practices of the Company beginning with payroll on May 15, 1998. Payment
of this amount shall continue until the earlier of (i) April 30, 1999 or (ii)
breach of sections 7, 8 or 9 of this Agreement by Tidikis, in which case no
further payments shall be due under this Agreement.
This Company will provide a COBRA notice to Tidikis and the continuation of
health insurance benefit coverage after April 30, 1998 will be solely and
exclusively pursuant to federal COBRA laws at Tidikis' sole expense. On May 1,
1998, Tidikis shall receive additional payment in the amount of Nine Thousand
Seven Hundred Twenty-Eight and 60/100 Dollars ($9,728.60) grossed up for taxes,
representing twelve (12) months of Cobra premiums.
With respect to PhyMatrix Corp. stock options granted to Tidikis, pursuant
to the Stock Option Agreement dated effective January 23, 1996, one hundred
thousand (100,000) options have vested at $15.00 per share. With respect to the
stock option agreement of fifty thousand (50,000) options dated effective
January 23, 1996, twenty thousand (20,000) options have vested as follows: ten
thousand (10,000) options at 18-3/8 per share on January 23, 1997, ten thousand
(10,000) options at 12-15/16 per share on January 23, 1998. An additional ten
thousand (10,000) options are scheduled to vest on January 23, 1999 at the fair
market price on that date. Tidikis agrees that all other claims to PhyMatrix
stock options and change in control bonuses are forfeited.
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Pursuant to the Stock Option Agreement, all options vested must be exercised
within thirty (30) days of the earlier of (i) April 1, 1999, or (ii) the
termination of this agreement.
3. Company Property. On April 30, 1998, Tidikis shall return to the Company
all property, equipment, records, correspondences, manuals, documents, files,
keys, computer disks, computer programs, data and any other information (whether
originals, copies or extracts) belonging to the Company, whether maintained by
Tidikis in the facilities of the Company, at Tidikis' home, or at any other
location, and Tidikis will not retain any copies or reproductions of any
property of the Company. Tidikis further represents and warrants that he has
not, and will not destroy, delete, erase or alter, without the express written
permission of the Company, any information or data currently used by the Company
in the course of its business. Tidikis agrees to provide the Company with the
passwords to access all files maintained on the Company's computer system.
4. Claims Against the Company and its Affiliates.
(a) Tidikis accepts the terms of this Agreement in full, final and complete
satisfaction and settlement of any and all claims which in any way relate or
pertain to or arise out of his employment with the Company and the termination
of that employment. Accordingly, Tidikis hereby releases the Company and any and
all parent, subsidiary or affiliated corporations or business entities and any
and all respective past or present employees, officers, agents, directors,
shareholders, representatives and attorneys of the foregoing and others acting
for or on behalf of the foregoing (hereinafter "Releasees") from all past,
present or future claims, actions, rights or benefits of whatever nature of
description, including claims for attorneys' fees and expenses and any claims to
stock options, change-in-control bonuses, or bonus payments, past, present or
future, whether accrued or not, from the beginning of time through and including
the date of
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execution of this agreement. Prior to receiving payment on April 30, 1998,
Tidikis agrees to execute a general release in the form attached hereto as
Exhibit A. The Company acknowledges that nothing in this release encompasses,
covers, alters, limits or bars the right of Tidikis to pursue a claim against
the Company for breach of this agreement.
(b) It is further understood and agreed that this document is intended to
be a total accord, settlement and satisfaction of any and all claims which the
Company has or may have had against Tidikis.
5. To comply with the Older Workers Benefit Protection Act of 1990, the
Company has advised Tidikis of the legal requirements of this Act and fully
incorporates the legal requirements by reference into this Agreement as follows:
(a) This agreement is written in xxxxxx'x terms, and Tidikis acknowledges
that he understands and comprehends its terms:
(b) Tidikis has been advised of his right to consult an attorney to review
the Agreement, and has had the benefit of an attorney throughout the settlement
process or has waived his right to use an attorney;
(c) Tidikis does not waive any rights or claims that may arise after the
date the waiver is executed;
(d) Tidikis acknowledges that he is receiving consideration beyond
anything of value to which he already is entitled;
(e) Tidikis has been given a reasonable period of time to consider this
Agreement.
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6. Claims Against Tidikis.
(a) The Company accepts the terms of this Agreement in full, final and
complete satisfaction and settlement of any and all claims which in any way
relate or pertain to or arise out of Tidikis' employment with the Company and
the termination of that employment. Accordingly, the Company hereby releases
Tidikis from all past, present or future claims, actions, rights or benefits of
whatever nature or description, including claims for attorneys' fees and
expenses past, present or future, whether accrued or not, from the beginning of
time through and including the date of execution of this Agreement. However,
Tidikis acknowledge and agrees that nothing in this release encompasses, covers,
alters, limits or bars the right of the Company to purse a claim against Tidikis
for breach of this Agreement.
(b) It is further understood and agreed that this document is intended to
be a total accord, settlement and satisfaction of any and all claims which the
Company has and may have had against Tidikis.
7. Confidentiality. Tidikis agrees that for a period of two (2) years from
the date of this Agreement, he will maintain in strict confidence the terms of
this Agreement and the amount of the payments specified in Paragraph 2 and that
he will not disclose the terms of this Agreement or the amount of said payments
to anyone unless required by law; provided that Tidikis may disclose to his
accountants, attorneys and tax advisors or financial consultants such
information as may be necessary for tax planning or the preparation of tax
returns.
8. Non-disparagement: Tidikis agrees that he will not at any time,
denigrate, degrade, ridicule, intentionally criticize or make negative remarks
about the Company or any of its affiliates or any of their respective employers,
officers, directors, agents, or representatives. The Company
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agrees that it will not at any time, denigrate, degrade, ridicule, intentionally
criticize or make negative remarks about Tidikis. If called upon, the Company
will direct all inquiries to Xxxxxx Xxxxxx, President, to provide a favorable
reference for Tidikis.
9. Availability for Work. In return for payments made by the Company under
this Agreement after May 1, 1998, Tidikis agrees that he shall be available to
the Company or its designee, as reasonably requested, to assist in the
transition of Company matters for which Tidikis had responsibility during the
term of his employment.
10. Severability. Should any provision of this Agreement be declared or
determined by any court of competent jurisdiction to be unenforceable or invalid
for any reason, the validity of the remaining parts, terms and provisions of
this Agreement shall not be affected thereby and the invalid or unenforceable
part, term or provisions shall be deemed not to be a part of the Agreement.
11. Whole Agreement. This Agreement constitutes the entire agreement
between the parties and embodies and supersedes any agreements or
understandings, whether oral or written. It is further understood and agreed
that this Agreement may not be changed, altered or amended except in a
subsequent writing signed by each of the parties hereto. This Agreement may be
executed in multiple originals.
12. Acknowledgement. Tidikis and the Company acknowledge and represent that
they have each read or caused to be read this Agreement and that each
understands it fully and signs it voluntarily. Tidikis further acknowledges that
nothing contained in this Agreement or the payment of the sums referred to above
shall be construed as an admission of liability on the part of the Company or
any of the Releasees, all such liability being expressly denied.
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IN WITNESS WHEREOF, the undersigned hereunto set their hands on the dates
shown below.
/s/ XXXXX XXXXXXX
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XXXXX XXXXXXX
Date: 6 Feb 1998
PHYMATRIX CORP.
By: /s/ Xxxxxx X. Xxxxxx
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XXXXXX X. XXXXXX
Title: President
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Date: 2/6/98
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