Exhibit 10.43
SEPARATION AGREEMENT
WHEREAS, XXXXXX X. XXXXXXXX and DIANON SYSTEMS, INC. ("COMPANY") wish to
end the employment relationship between them and wish to resolve any and all
claims, disputes or causes of action that do or may exist between them;
NOW THEREFORE, in consideration of the mutual covenants and other valuable
considerations contained herein, the COMPANY and XXXXXX X. XXXXXXXX agree as
follows:
1. XXXXXX X. XXXXXXXX resigns his full-time employment and his officer
position with the COMPANY effective as of September 15, 1997.
2. The COMPANY shall pay XXXXXX X. XXXXXXXX separation pay, at his last
rate of base salary, subject to applicable deductions, for the period six months
after his termination and for so much of the following three months as XXXXXX X.
XXXXXXXX has not obtained other employment (the "Separation Period"). This
separation pay shall be paid in equal installments on regular payroll dates of
the COMPANY throughout the Separation Period.
3. Throughout the Separation Period, the COMPANY shall contribute to
medical coverage for XXXXXX X. XXXXXXXX and his dependents at the same rate it
contributes for active employees, provided XXXXXX X. XXXXXXXX and his family are
eligible for and elect continuation coverage.
4. The COMPANY shall pay XXXXXX X. XXXXXXXX any bonus he would have
received under the COMPANY's 1997 Management Incentive Program had his
employment continued through the date on which payments under said program are
made. This payment will be made at the same time payments to other Management
Incentive Program participants are made.
5. The COMPANY shall pay for XXXXXX X. XXXXXXXX to participate in Drake
Beam Xxxxx Inc.'s six month Senior Executive Program of outplacement services.
6. XXXXXX X. XXXXXXXX agrees to comply with the provisions of the Employee
Proprietary Information Agreement appended to this Agreement as Exhibit A,
subject to Paragraph 11 of this Agreement.
7. XXXXXX X. XXXXXXXX agrees to cooperate with the COMPANY and its
representatives regarding any claims or potential claims or litigation by or
against the COMPANY involving matters about which XXXXXX X. XXXXXXXX possesses
knowledge.
8. XXXXXX X. XXXXXXXX, agrees to make himself reasonably available to
consult with the COMPANY on Sales matters during the Separation Period.
9. XXXXXX X. XXXXXXXX, on behalf of himself, his executors, administrators
and assigns, hereby releases the COMPANY, its affiliates, and their respective
directors, officers, agents, employees, benefit plans, fiduciaries and
administrators of such benefit plans and their successors and assigns
(hereinafter "Released COMPANY Parties") from any and all claims or causes of
action of any kind arising on or before the date he signs this Agreement, other
than vested rights under benefit plans, which XXXXXX X. XXXXXXXX has, had or may
have against any of them, whether or not now known arising from XXXXXX X.
XXXXXXXX'x recruitment for employment with the COMPANY, his employment or
officer position with the COMPANY, or the termination of his employment and
officer position with the COMPANY, including without limitation any claims for
violation of employment discrimination statutes, breach of contract, tort or
other wrongdoing.
10. XXXXXX X. XXXXXXXX on behalf of himself, his heirs, executors,
administrators and assigns, further agrees never directly or indirectly to
commence or prosecute, or to permit or advise to be commenced or prosecuted, any
action, proceeding, or charge against any Released COMPANY Party, in any state
or federal court, administrative agency or arbitral forum with respect to any
matter whether or not now known, for any claim based upon any act, transaction,
practice, conduct, or omission that occurred prior to the date he signs this
Agreement, including but not limited to, rights under any other federal, state,
or local laws prohibiting age, race, sex, national origin, religion, or other
forms of discrimination, claims for breach of contract or promissory estoppel or
tort, and claims growing out of any legal restrictions on the COMPANY's right to
terminate its employees or officers which he now has, or claims to have, or
which at any time heretofore had, or which at any time hereafter he may have.
11. Notwithstanding the provisions of the Employment Proprietary
Information Agreement attached hereto, XXXXXX X. XXXXXXXX undertakes and the
COMPANY shall enforce against him only the following obligation not to engage in
any competitive activity. XXXXXX X. XXXXXXXX agrees that, to the fullest extent
permitted by law, for the period of eighteen (18) months after the date of
termination of employment with the COMPANY, he (a) will not solicit business on
behalf of any entity which is conducting any business which competes with
DIANON's business ("Competing Entity"), (b) will not solicit business from
customers of DIANON, (c) will not solicit the employment or services of any of
the employees of DIANON, (d) will not, directly or indirectly, participate in
the ownership, management, operation or control of any Competing Entity in the
geographic area in which Employee may have rendered service to DIANON during the
two (2) year period prior to the termination of employment.
12. XXXXXX X. XXXXXXXX agrees that he will not seek employment with the
COMPANY or its affiliates or successors and that any application he makes for
such employment will be rejected without explanation or recourse.
13. The parties recognize and agree that this Agreement does not and shall
not constitute an admission of liability or wrongdoing by any Released COMPANY
Party.
14. The parties agree that, except as necessary to comply and to obtain
compliance with this Agreement, or to comply with any federal, state, or local
law, they will not disclose the terms of this Agreement.
15. In the event XXXXXX X. XXXXXXXX files a claim, lawsuit or complaint
against any Released COMPANY Party in any court or governmental agency with
respect to the claims he has released under this Agreement, XXXXXX X. XXXXXXXX
shall be liable for all costs and expenses including legal fees, incurred by any
Released COMPANY Party in defense of that action.
16. XXXXXX X. XXXXXXXX represents that he has carefully read and completely
understands this Agreement and that he has entered into this Agreement
voluntarily after having had a reasonable amount of time to consider it and an
opportunity to consult with his legal advisors.
17. XXXXXX X. XXXXXXXX acknowledges that the commitments, waivers and
releases he gives in this Agreement are in exchange for valuable consideration
to which he is not otherwise entitled, and which constitutes a full accord and
satisfaction of any claims he may have against any Released COMPANY Party.
18. XXXXXX X. XXXXXXXX acknowledges that he has been given a reasonable
time to review the waivers and releases contained in this Agreement prior to
signing it.
19. This Agreement constitutes the entire Agreement of the parties on the
subject matter hereof and supersedes any and all prior agreements,
understandings or commitments, oral or written.
20. This Agreement shall be governed by applicable Federal law and the laws
of the State of Connecticut.
XXXXXX X. XXXXXXXX
Dated: 15 SEP 97 Signature: /S/ XXXXXX X. XXXXXXXX
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DIANON SYSTEMS, INC.
Dated: 29 SEPTEMBER, 1997 By: /S/ XXXXX X. XXXXXXX
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