(AMICAS LOGO)
March 31, 2005
Via Hand Delivery
Xxxxx Xxxxxxxxxx
38 Xxxxx Xx.
Newton, MA 02468
Dear Xxxxx:
AMICAS, Inc., including its subsidiaries (the "Company") and you have
mutually decided to terminate your at-will employment effective as of April 30,
2005. Upon termination, you shall receive payment for all work performed by you
through your termination date along with payment for any accrued but unused
vacation time.
In light of your service to the Company, if you sign and return this letter
agreement postmarked on or before April 4, 2005, and as long as you abide by the
other terms of this separation as described herein, the Company will provide you
with the severance benefits described in detail below. BY SIGNING AND RETURNING
THIS LETTER AGREEMENT (THE "AGREEMENT"), YOU WILL BE ENTERING INTO A BINDING
AGREEMENT WITH THE COMPANY REGARDING THE TERMS AND CONDITIONS SET FORTH IN THE
NUMBERED SECTIONS BELOW, INCLUDING THE SECTION REGARDING A RELEASE OF CLAIMS.
Therefore, you are advised to consult with an attorney before signing this
letter and you may take up to twenty-one (21) days to do so. If you sign this
letter, you may change your mind and revoke your agreement during the seven (7)
day period after you have signed it (the "Revocation Period") by notifying Xxxxx
Xxxxxxx, Vice President, Human Resources in writing of your revocation. If you
do not so revoke, this letter will become a binding agreement between you and
the Company upon the expiration of the Revocation Period. If you choose not to
timely sign and return this letter, or if you revoke your acceptance in writing,
you shall not receive any severance benefits from the Company.
Regardless of whether you sign this Agreement, you may be eligible to elect
to continue receiving group health insurance for any Company-sponsored health
plans participated in by you (including medical, dental, vision, and
prescription drugs, if applicable) as of your last date of employment with the
Company, pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985
("COBRA"). If you are eligible for and elect continuation of group health
insurance under COBRA, all premium costs shall be paid by you on a monthly basis
for as long as, and to the extent that, you remain eligible for COBRA coverage.
Please consult the COBRA materials to be provided by the Company under separate
cover for details regarding these COBRA benefits. All other Company-provided
benefits will cease upon your termination.
The following numbered sections set forth the terms and conditions that
will apply if you timely sign and return this Agreement and do not revoke your
consent to this Agreement within the Revocation Period and you abide by the
other obligations described herein including but not limited to your obligation
to provide ongoing transition services to the Company not to exceed 16 hours per
week through June 30, 2005 under the direction and sole discretion of the
Company's CEO:
1. TERMINATION DATE - Your effective date of termination from the Company is
April 30, 2005 (the "Termination Date") subject to your continuing
obligation to provide ongoing transition services to the Company not to
exceed 16 hours per week through June 30, 2005 under the direction of the
Company's CEO. As of the Termination Date, all salary payments from the
Company will cease and any benefits you currently have under
Company-provided benefit plans, programs, or practices will terminate,
except as required by federal or state law, or as otherwise described.
2. DESCRIPTION OF SEVERANCE BENEFITS - In return for your reaffirmation of the
Non Compete agreement dated November, 2003 attached hereto and made a part
hereof ("Non Compete/Non-Disclosure Agreement"), and the timely execution,
non-revocation, and return of this Agreement, including the release of
claims below and your meeting the other obligations described herein, the
Company agrees to provide you with the severance benefits outlined below
(collectively, the "Severance Benefits"):
a) Severance Pay. The Company agrees to pay you severance pay equivalent
to two months of your current base rate of pay,- $20,833 per month-
(the "Severance Pay"). The Severance Pay shall be subject to all
applicable local, state and federal taxes and withholdings and will be
paid to you in the form of salary continuation through June 30, 2005,
in accordance with the Company's regular payroll practices (the
"Severance Pay Period"). In no event will payments under this section
begin prior to the later of (i) the eighth (8th) day following your
execution of this Agreement or (ii) the date of your compliance with
the provisions of section 5 of this Agreement ("Commencement Date").
You will not be eligible for, nor shall you have a right to receive,
any payments from the Company following the Termination Date other
than the payments set forth above.
b) Accelerated Payment of the Employee Earn Out Bonus. The Company agrees
to pay you:
(a) the amount of $414,387.96 less all applicable local, state and
federal taxes and withholdings in one lump sum payment on the
Commencement Date; and
(b) the amount of $414,387.95 less all applicable local, state and
federal taxes and withholdings in one lump sum payment on May 31,
2005, (collectively the "Employee Earn Out Bonus")
as full and complete satisfaction of any amounts that may be due to
you and/or that may become due pursuant to the Amended and Restated
Employee Bonus Plan effective December 8, 2004 ("Employee Bonus Plan")
and any other related or similar agreement.
c) Shareholder Merger Payment. The Company agrees to pay you the amount
of $5,398.25 as full and complete satisfaction of any amounts that may
be due to you and/or that may become due pursuant to the Merger
Agreement dated November 25, 2003 as amended ("Merger Agreement") and
any other related or similar agreement.
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d) Retroactive Salary Increase. The Company agrees to pay you on the
Commencement Date the amount of $7,500 as payment of the base salary
increase previously promised to you, retroactive to January 1, 2005.
e) Car Allowance. The Company agrees to pay you on the Commencement Date
the amount of $3,750 as payment of the car allowance previously
promised to you, retroactive to January 1, 2005.
f) Option Exercisability. The Company acknowledges and agrees that you
have vested stock options to purchase up to an aggregate of 41,666
shares of the Company's common stock, and that these options may be
exercised in whole or in part from time to time until the 90th day
following the Termination Date.
g) Laptop Computer. The Company will permit you to retain the laptop
computer previously provided to you by the Company through June 30,
2005.
h) Email Address. The Company will permit you to continue to use your
existing Company email address for at least 10 working days following
the Commencement Date.
3. RELEASES - In consideration of the Severance Pay, which you acknowledge you
would not otherwise be entitled to receive, and the Accelerated Payment of
the Employee Earn Out Bonus, which you acknowledge you may not otherwise be
eligible to receive and, if eligible, could not receive until December 31,
2005, you (on behalf of yourself, your agents, assignees, attorneys,
successors, assigns, heirs and executors) hereby fully, forever,
irrevocably and unconditionally release, remise and discharge the Company,
including, but not limited to, its affiliates, subsidiaries, parent
companies, predecessors and successors and all of their respective past and
present officers, directors, stockholders, partners, members, employees,
agents, representatives, plan administrators, attorneys, insurers and
fiduciaries (each in their individual and corporate capacities)
(collectively, the "Released Parties") from any and all claims, charges,
complaints, demands, actions, causes of action, suits, rights, debts, sums
of money, costs, accounts, covenants, contracts, agreements, promises,
doings, omissions, damages, executions, obligations, liabilities, and
expenses (including attorneys' fees and costs) of every kind and nature
which you ever had or now have, whether known or unknown to you, including
without limitation all claims arising out of or relating to your employment
with or separation from the Company, all employment discrimination claims
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e et
seq., the Americans With Disabilities Act of 1990, 42 U.S.C., Section 12101
et seq., the Age Discrimination in Employment Act, 29 U.S.C. Section 621 et
seq.; the Family and Medical Leave Act of 1993, 29 U.S.C. Section 2601 et
seq.; the Massachusetts Fair Employment Practices Act, Mass. Gen. Laws ch.
151B, Section 1 et seq., the Massachusetts Civil Rights Act, Mass. Gen.
Laws ch. 12, Section 11H et seq., the Massachusetts Equal Rights Act, Mass.
Gen. Laws ch. 93, Section 102 and Mass. Gen. Laws ch. 214, Section 1C, the
Massachusetts Labor and Industries Act, Mass. Gen. Laws ch. 149, Section 1
et seq., the Massachusetts Privacy Act, Mass. Gen. Laws ch. 214, Section 1B
et seq., the Massachusetts Family and Medical Leave Act, Mass. Gen. Laws
ch. 149, Section 52D et seq.; and any and all other similar applicable
federal and state statutes, all as amended; all claims arising out of the
Fair Credit Reporting Act, 15 U.S.C. Section 1681 et seq.; the Worker
Adjustment and Retraining Notification Act ("WARN"), 29 U.S.C. Section 2101
et
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seq., and the Employee Retirement Income Security Act of 1974 ("ERISA"), 29
U.S.C. Section 1001 et seq.; all as amended; all common law claims
including, but not limited to, actions in tort, defamation and breach of
contract; all claims to any amounts that may be due pursuant to the
Employee Bonus Plan and the Merger Agreement, and all claims to non-vested
ownership interest in the Company, contractual or otherwise, including, but
not limited to, claims to non-vested stock or stock options; and any claim
or damage arising out of your employment with or separation from the
Company (including a claim for retaliation) under any common law theory or
any federal, state or local statute or ordinance not expressly referenced
above; provided, however, that nothing in this Agreement (i) prevents you
from filing, cooperating with, or participating in any proceeding before
the EEOC or a state or federal Fair Employment Practices Agency (except
that you acknowledge that you may not be able to recover any monetary
benefits in connection with any such claim, charge or proceeding), or (ii)
releases, remises, or discharges any of (A) the rights or obligations of
the Company or you under this Agreement, (B) the Company's obligations to
indemnify, defend, hold harmless, or contribute to you pursuant to the
Company's certificate of incorporation or by-laws, and (C) your COBRA
rights and similar rights under applicable state laws. To ensure that the
release in this Section is fully enforceable in accordance with its terms,
you agree, to the extent permitted by law, to waive any protection that may
exist under any statute and under any principle of common law of the United
States or any and all States.
The Company fully, forever, irrevocably and unconditionally releases,
remises and discharges you from any and all claims, charges, complaints,
demands, actions, causes of action, suits, rights, debts, sums of money,
costs, accounts, reckonings, covenants, contracts, agreements, promises,
doings, omissions, damages, executions, obligations, liabilities, and
expenses (including attorneys' fees and costs), of every kind and nature
which it ever had or now has against you, whether known or unknown to the
Company (collectively, "Claims"), including without limitation all Claims
arising out of or relating to your employment with or separation from the
Company or your status as an officer of the Company, provided, however,
that nothing in this section shall prevent the Company from filing an
action to enforce the provisions of this Agreement or releases you from any
obligation expressly set forth in this Agreement.
4. POST-TERMINATION OBLIGATIONS - In consideration of the Severance Pay, which
you acknowledge you would not otherwise be entitled to receive, and the
Accelerated Payment of the Employee Earn Out Bonus, which you acknowledge
you may not otherwise be eligible to receive and, if eligible, could not
receive until December 31, 2005, you acknowledge and reaffirm your
obligations to keep confidential all non-public information, confidential
information and trade secrets of the Company, and your non-solicitation and
non-competition obligations, all as set forth in your Non
Compete/Non-Disclosure Agreement which is attached hereto and made a part
hereof, is wholly incorporated herein by reference and remains in full
force and effect.
5. RETURN OF COMPANY PROPERTY - You represent and confirm that you will
immediately return to the Company all Company property and equipment in
your possession or control, including, but not limited to, keys, files,
equipment (including, but not limited to, computer hardware, software and
printers, wireless handheld devices, cellular phones, and pagers),
identification badges, vehicles, customer information, customer lists,
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employee lists, Company files, notes, contracts, records, business plans,
financial information, specifications, computer-recorded information,
tangible property, and any other materials of any kind which contain or
embody any proprietary or confidential material of the Company (including
all reproductions), but excluding the laptop computer referred to in
Section 2(g) above which shall be returned on or before June 30, 2005. You
also agree to leave intact all electronic Company documents, including
those that you developed or helped develop during your employment. You
further agree to immediately cancel upon receipt of this Agreement all
accounts for your benefit, if any, in the Company's name including, but not
limited to, credit cards, telephone charge cards, cellular phone accounts,
pager accounts, and computer accounts.
6. BUSINESS EXPENSES AND COMPENSATION - You acknowledge that when you have
been provided with all compensation and benefits due to you as of the
Termination Date, including, but not limited to, any and all wages, salary,
bonuses, commissions, and payment for accrued but unused vacation time, as
provided in the first paragraph of this Agreement, you will not be eligible
or entitled to receive any consideration in excess of the Severance
Benefits, except for business expenses pursuant to the Company's T&E policy
previously incurred by you and for which you submit appropriate
documentation within one week after the Commencement Date.
7. NON-DISPARAGEMENT - You understand and agree that, as a condition for
payment to you of the Severance Benefits, you shall not at any time make
any false, disparaging, derogatory or defamatory statements in public or in
private regarding the Company or any of the other Released Parties, or
regarding the Company's business affairs, business prospects and financial
condition to any party, including, but not limited to, any media outlet,
industry group, financial institution or current or former employee,
consultant, client or customer of the Company. The Company agrees to direct
each of its officers and directors not to make any false, disparaging,
derogatory or defamatory statements in public or in private regarding you
or your employment with the Company.
8. CONFIDENTIALITY - To the extent permitted by law, you and the Company each
understand and agree that the terms and contents of this Agreement, and the
contents of the negotiations and discussions resulting in this Agreement,
shall be maintained as confidential by you and the Company and your
respective representatives, and shall not be disclosed to any third party
(other than your spouse and your and the Company's respective legal
counsel, and tax preparers), except to the extent required by federal or
state law, in response to a lawful subpoena, or as otherwise agreed to in
writing by you and the Company. You agree and acknowledge that the Company
will file this Agreement with the U. S. Securities and Exchange Commission.
9. AMENDMENT - This Agreement shall be binding upon the parties and may not be
modified in any manner, except by an instrument in writing of concurrent or
subsequent date signed by the duly authorized representatives of the
parties. This Agreement is binding upon and shall inure to the benefit of
the parties and their respective agents, assigns, heirs, executors,
successors and administrators.
10. WAIVER OF RIGHTS - No delay or omission by the Company or you in exercising
any right under this Agreement shall operate as a waiver of that or any
other right. A waiver or
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consent given by the Company or you on any one occasion shall be effective
only in that instance and shall not be construed as a bar or waiver of any
right on any other occasion.
11. VALIDITY - Should any provision of this Agreement be declared or be
determined by any court of competent jurisdiction to be illegal or invalid,
the validity of the remaining parts, terms or provisions shall not be
affected thereby and said illegal or invalid part, term or provision shall
be deemed not to be a part of this Agreement.
12. NATURE OF AGREEMENT - You understand and agree that this Agreement is a
severance agreement and does not constitute an admission of liability on
the part of the Company.
13. ACKNOWLEDGMENTS - You acknowledge that you have been given at least
twenty-one (21) days to consider this Agreement and that the Company
advised you to consult with an attorney of your choosing prior to signing
this Agreement. You further acknowledge that you may revoke this Agreement
for a period of seven (7) days after the execution of the Agreement, and
that the Agreement shall not be effective or enforceable until the
expiration of this seven (7) day revocation period.
14. VOLUNTARY ASSENT - You affirm that no other promises or agreements of any
kind have been made to or with you by any person or entity whatsoever to
cause you to sign this Agreement, and that you fully understand the meaning
and intent of this Agreement. You state and represent that you have been
advised to review the terms of this Agreement with an attorney and have had
the opportunity to do so. You further state and represent that you have
carefully read this Agreement, understand its contents, freely and
voluntarily assent to all of its terms and conditions, and sign your name
of your own free act.
15. APPLICABLE LAW - This Agreement shall be governed by the laws of the
Commonwealth of Massachusetts, without regard to conflict of laws
provisions. You and the Company each hereby irrevocably submit to and
recognize the jurisdiction of the courts of the Commonwealth of
Massachusetts, or, if appropriate, a federal court located in the
Commonwealth of Massachusetts (which courts, for purposes of this
Agreement, are the only courts of competent jurisdiction), over any suit,
action or other proceeding arising out of, under or in connection with this
Agreement or its subject matter.
16. COOPERATION. For a period of two (2) years following the date of this
Agreement, or such longer period as you and the Company may mutually agree,
you agree to fully cooperate with the Company in connection with any
defense of or prosecution by the Company regarding any litigation or
threatened litigation in which the Company may be involved as a party or
non-party from time to time. For any such cooperation after June 30, 2005,
the Company agrees to reimburse you for any reasonable out of pocket costs
and expenses incurred and to pay you a mutually agreed upon reasonable per
diem compensation.
17. ENTIRE AGREEMENT - This Agreement contains and constitutes the entire
understanding and agreement between the parties with respect to your
severance benefits and the release of claims against the Company and
cancels all previous oral and written negotiations, agreements, commitments
or writings in connection therewith. Nothing in this Agreement, however,
shall modify, cancel or supersede your obligations in the Non
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Compete Non Disclosure Agreement, the terms of which are wholly
incorporated by reference into this Agreement and shall remain in full
force and effect.
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If you choose to execute this Agreement, please return all pages of this
letter to Xxxxx Xxxxxxx, Vice President, Human Resources, postmarked on or
before the date referenced on the first page of this letter. If you have any
questions about the matters covered in this letter, please feel free to contact
Xxxxx Xxxxxxx at (000) 000-0000.
Very truly yours,
AMICAS, Inc.
By: /s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx MD MS
Chief Executive Officer
I hereby agree to the terms and conditions set forth above. I have been given at
least twenty-one (21) days to consider this Agreement and I have chosen to
execute it on the date below. I intend that this Agreement will become a binding
agreement between the Company and me if I do not revoke my acceptance within
seven (7) days.
SIGNATURE: /s/ Xxxxx Xxxxxxxxxx DATE: March 31, 2005
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