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EXHIBIT 10.32
SEPARATION AGREEMENT
AND GENERAL RELEASE
This Agreement is entered into this 11th day of September, 1998, by and
between Xxxxx X. Xxxxx (hereinafter "Employee") and Xxxxx Health Care, Inc.
(hereinafter "Company").
In consideration of Employee's agreement to the terms set forth below, and
the mutual benefits to be derived hereunder, it is agreed as follows:
All payments are subject to withholding for federal income tax, FICA, and
other deductions required by law or regulation and will be made in a lump sum
within ten (10) days following the date of execution of this Agreement. In
consideration of these payments, Employee shall not, without prior written
consent of Company, directly as an employee or employer engage in any business
or render any services to any business that is in direct competition with the
business of Company or any of its successors, purchasers, subsidiaries, assigns,
affiliates, or parent for a period of two (2) years from the effective date of
Employee's resignation. Employee further agrees to not solicit any employee of
Company, its parent, subsidiaries or affiliates for employment for a period of
two (2) years from the effective date of Employee's resignation. Company
acknowledges that nothing in this Agreement is intended to preclude Employee
from investing in or serving as a Director in any entity.
1. Employee is to receive payment equivalent to three year's salary
($1,800,000).
2. Employee is to receive $2,160,000 which represents eighty percent (80%) of
Employee's maximum eligibility for payment under the terms of the
Transaction Bonus Plan. This amount is to be paid by separate check. This
payment is not considered to be severance.
3. Employee is to receive $76,153 payment for all unused Paid Time Off (PTO)
as of the effective date of resignation, September 15, 1998.
4. Employee is to receive $6,728 in consideration of COBRA health insurance
continuation for eighteen months.
5. Employee is to receive $35,000 in consideration of relocation expenses.
6. Employee is to receive $5,000 in consideration of outplacement services.
7. Vested options may be exercised in accordance with plan provisions.
Non-vested options scheduled to vest within twelve months following the
effective date of Employee's resignation will be vested.
The foregoing is in consideration of Employee's agreement that all promises
set forth herein are accepted in full and final release and settlement of any
and all claims of any type relating to Employee's employment or the operation of
the Company which Employee ever had or may now have against Company, or any of
its successors, purchasers, subsidiaries, assigns, affiliates, or parent, and
the officers, agents, directors, or employees of any of them. Employee agrees to
cooperate fully in conjunction with any investigation, dispute, grievance, claim
or litigation which now exists or may arise in the future concerning any matters
with which Employee may have been involved. Nothing in this statement shall
require the Employee to act contrary to the advice of counsel. Employee shall be
indemnified by the Company in accordance with, and to the fullest extent allowed
by, the provisions of Delaware law and Article Sixteenth of the Restated
Certificate of Incorporation of the Company and will be provided advancement of
legal fees and costs to the extent provided therein. It is further agreed that
the terms of this agreement will not be revealed to any person not a party to
it, other than as required by law and except for legal and financial advisors.
Employee also agrees to expressly waive any rights under any other programs or
agreements between Employee and Company including its parent other than as set
forth herein or as provided for under existing company benefit plans.
Also, in consideration of the agreements set forth herein, Employee agrees
to bring no lawsuits of any kind relating to employment or separation from
employment including, but not limited to claims arising under the Fair Labor
Standards Act, Title VII of the Civil Rights Act of 1964, the Age Discrimination
in Employment Act, and the Americans with Disabilities Act. Employee
acknowledges to have read this agreement/release and to understand all of its
terms. Each party agrees to not make any disparaging remarks regarding the other
party. Employee further acknowledges to have been informed of the right to agree
or not agree to the terms set forth herein and has executed this agreement
voluntarily with full knowledge of its significance and consequences. Employee
acknowledges to have been offered at least twenty-one (21) days to consider the
terms and conditions of this document but has voluntarily chosen to execute the
document on the date of its execution, as evidenced by signature. In addition,
Company and Employee agree that Employee has seven (7) days following the
execution of this document in which to revoke this agreement by written notice.
This agreement/release is binding on and shall inure to the benefit of
Company, its parent and its successors and/or assigns.
I acknowledge that I have read the foregoing, have had ample time to
consider it, including ample time to consult with counsel, and voluntarily agree
to all terms set forth herein.
/s/ Xxxxx X. Xxxxx 9/14/98
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Employee Date
/s/ Xxxx Xxxxxxxx 9/14/98
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Company Date
