Exhibit 10.1
March 31, 2006
Xxxxx Xxxxxx
000 Xxxxxxx Xxxxx
Xxxxxx Xxxxx, XX 00000
Dear Xxxxx,
This letter sets forth the substance of the agreement (the "Agreement")
between you and First Consulting Group, Inc. ("FCG") regarding your separation
of employment.
1. Separation. You will cease to be an employee of FCG or any of its
subsidiaries or affiliates (individually, an "FCG Company" or collectively, the
"FCG Companies") effective March 31, 2006 (the "Separation Date").
2. Accrued Salary and Paid Time Off. On or after the Separation Date, in
conformance with applicable state laws, FCG will pay you all accrued and unpaid
salary, and all accrued and unused paid time off earned through the Separation
Date, subject to standard payroll deductions and withholdings. You are entitled
to these payments regardless of whether or not you sign this Agreement. Unused
personal choice holidays are paid out.
3. Severance Payments. FCG will pay to you the following amounts as full
consideration for your obligations and covenants under this Agreement and in
full satisfaction of any amount that may be owed to you upon your separation
from FCG under any agreement or arrangement between you and FCG or any other FCG
Company: Twelve (12) months of base salary, or approximately $432,000, less
federal, state and other applicable taxes and other authorized withholdings
(including $2,366 of personal expenses to be reimbursed to FCG that will be
withheld from the gross separation amount stated above). Payment of these
amounts will be paid as a lump sum distribution ten (10) days after the later of
1) the date this signed agreement is received by FCG, or 2) the Separation Date,
or 3) the date your FCG property/equipment is received in Nashville if
applicable. This payment will be a manual check.
You must return this signed Agreement within three (3) weeks of the date of
receipt in order to be eligible to receive the severance benefit.
In addition, you will receive executive outplacement assistance with Global
Resources.
4. Health Insurance. According to company policy, your FCG group health
insurance benefits will be cancelled effective with the Separation Date. After
the Separation Date, you will be eligible to continue your group health
insurance benefits at your sole cost and expense to the extent provided by
federal COBRA law, state insurance laws and by FCG's current group health
insurance policies. You may do this by making the COBRA election and submitting
your premiums directly to our COBRA administrator in the Long Beach office. A
package of information will be sent to you via mail within 21 days of the
Separation Date detailing the process and premium amounts for COBRA coverage,
including the deadline by which you must elect COBRA coverage. Should you elect
COBRA within the time requirements, coverage will be effective retroactive to
the Separation Date.
5. Flexible Spending Accounts. Coverage under Flexible Spending Accounts
ceases on the Separation Date, subject to your ability to continue your Health
Care Flexible Spending Account through the balance of the year on an after-tax
basis. Additional details are provided in the COBRA notification.
6. Life Insurance. Your FCG group life insurance coverage will end
effective on the Separation Date. If you would like to convert your coverage,
please contact the Benefits Service Center within 30 days of the Separation Date
at 000-000-0000, ext. 2363.
7. Disability/Long Term Care Coverage. Coverage under the disability and
Long Term Care programs will terminate effective on the Separation Date. If you
would like to convert your coverage(s), please contact the Benefits Service
Center within 30 days of the Separation Date at the number above.
8. Stock Options. Any options to purchase FCG stock that you hold will
cease to vest on the Separation Date and all of your unvested stock options will
be cancelled. You will have 90 days following the Separation Date to exercise
any vested options you received under FCG's option plans. A closing statement
containing information on your vested options will be mailed to your home from
the FCG Corporate Affairs department. Also, status of your stock options is
available online through E*TRADE at xxx.xxxxxx.xxx.
9. Other Benefits. You and FCG hereby agree and acknowledge the following:
(a) SERP and 401(k). As of the Separation Date, you no longer may
contribute funds to FCG's 401(k) plan or the Supplemental Executive Retirement
Plan ("SERP"), nor will FCG contribute any matching or other funds to such plans
on your behalf. No payroll deductions for pre-tax contributions will be taken
from your severance pay. Nothing in this Agreement terminates or otherwise
affects any right or interest you may have in vested funds and assets under
FCG's 401(k), ASOP and SERP plans.
You will receive detailed information from New York Life regarding the
distribution of your contributions and any vested funds from the 401(k) and ASOP
account. As you will read in that material, you should wait until the middle of
the month after the month in which your last 401(k) deduction is made before
applying for a distribution. Contact New York Life directly at (000) 000-0000
regarding any questions, including account rollover transactions. You may also
visit their website at xxx.xxxxxxxxx.xxx. If you currently have an outstanding
loan, you may maximize the tax deferral of this benefit by electing to repay the
loan prior to taking a distribution from the Plan. If you choose not to, the
outstanding loan balance will be defaulted and treated as a taxable distribution
to you. You may coordinate the prepayment of the outstanding loan balance with
New York Life.
You will receive detailed information from Human Resources regarding the
distribution of your contributions and any vested funds from the SERP. You may
contact Xxxxx Xxxxx if you have any questions regarding the SERP.
(b) First Quarter 2006 Bonus. FCG agrees that you shall be eligible to
participate in any payout of bonus amounts for the first quarter of 2006 under
the bonus plan applicable to you prior to the Separation Date, and FCG hereby
waives the requirement under the plan that you be employed by FCG on the date
that bonus amounts, if any, are paid. Payment of any bonus amounts shall be less
federal, state and other applicable taxes and other authorized withholdings and
will be paid at the same time as FCG pays other bonus eligible associates are
paid first quarter of 2006 bonus, if any. This payment will be a manual check.
(c) Other Amounts. You acknowledge that, except as expressly provided in
this Agreement, you will not receive any additional compensation, bonus,
severance or benefits after the Separation Date.
10. Expense Reimbursement. Any outstanding unreimbursed expenses will be
paid based on the submission of your final Time and Expense Report and the
appropriate documentation. It is acknowledged that you may receive cellular
phone, long distance and other business related charges after the Separation
Date; please submit those expenses for reimbursement as they occur to FCG c/o
Jan Blue in the Long Beach, California office.
11. Return of FCG Property. On or before the Separation Date, you agree to
return to FCG all FCG/client Company documents (and all copies thereof) and
other FCG/client Company property that you have had in your possession at any
time, including (i) any materials of any kind that contain or embody any
proprietary or confidential information of an FCG/client Company (and all
reproductions thereof), and (ii) computers and other electronic devices,
cellular phones, credit cards, phone cards, entry cards, identification badges
and keys. If you have a cell phone and have had it for at least 3 months, it is
yours to keep. Any firm-provided service will be cancelled and you will need to
establish your own service. You will receive a Federal Express pack, with a
pre-paid shipping label, to ship your equipment back to Nashville. Please return
items to the FCG Help Desk in Nashville as soon as practicable, at least within
7 days.
12. Vice President Agreement. You hereby acknowledge and agree to your
continuing obligations, both during and after your employment with FCG, to abide
by the terms of that certain Vice President Agreement between you and FCG dated
December 22, 2000.
13. Confidentiality. The provisions of this Agreement will be held in
strictest confidence by you and FCG and will not be publicized or disclosed in
any manner whatsoever; provided, however, that: (a) you may disclose this
Agreement to your immediate family; (b) the parties may disclose this Agreement
in confidence to their respective attorneys, accountants, auditors, tax
preparers, and financial advisors; (c) FCG may disclose this Agreement as
necessary to fulfill standard or legally required corporate reporting or
disclosure requirements; and (d) the parties may disclose this Agreement insofar
as such disclosure may be necessary to enforce its terms or as otherwise
required by law. In particular, and without limitation, you agree not to
disclose the terms of this Agreement to any current or former FCG employee. In
addition, you agree not to use FCG email or voicemail distribution lists to
communicate any information regarding your departure from FCG without prior
written approval from Human Resources.
14. Nondisparagement. Both you and FCG agree not to disparage the other
party, and the other party's officers, directors, employees, shareholders and
agents, in any manner likely to be harmful to them or their business, business
reputation or personal reputation; provided that both you and FCG will respond
accurately and fully to any question, inquiry or request for information when
required by legal process.
15. Release of the FCG Companies. You hereby release, acquit and forever
discharge each of the FCG Companies and their respective parents and
subsidiaries, and each of their respective officers, directors, agents,
servants, employees, attorneys, shareholders, successors, assigns and
affiliates, of and from any and all claims, liabilities, demands, causes of
action, costs, expenses, attorneys' fees, damages, indemnities and obligations
of every kind and nature, in law, equity, or otherwise, known and unknown,
suspected and unsuspected, disclosed and undisclosed, arising out of or in any
way related to agreements, events, acts or conduct at any time prior to and
including the Effective Date of this Agreement, including but not limited to:
all such claims and demands directly or indirectly arising out of or in any way
connected with your employment with any FCG Company or the termination of that
employment; claims or demands related to salary, bonuses, commissions, stock,
stock options or any other ownership interests in any FCG Company, vacation pay,
fringe benefits, expense reimbursements, severance pay or any other form of
compensation; claims arising from any employment agreement or arrangement
between you and any FCG Company; claims pursuant to any federal, state or local
law, statute or cause of action including, but not limited to, the federal Civil
Rights Act of 1964, as amended; the federal Americans with Disabilities Act of
1990; the federal Age Discrimination in Employment Act of 1967, as amended
("ADEA"); the California Fair Employment and Housing Act, as amended; tort law;
contract law; wrongful discharge; discrimination; harassment; fraud; defamation;
emotional distress; and breach of the implied covenant of good faith and fair
dealing. You further agree not to initiate or continue any proceeding based upon
the claims released herein. Notwithstanding the foregoing, your release of the
FCG Companies in accordance with this Section 15 shall not be deemed to release
any of the FCG Companies' duties or obligations under this Agreement.
16. ADEA Waiver. You acknowledge that you are knowingly and voluntarily
waiving and releasing any rights you may have under the ADEA, as amended. You
also acknowledge that the consideration given for the waiver and release in the
preceding paragraph hereof is in addition to anything of value to which you were
already entitled. You further acknowledge that you have been advised by this
writing, as required by the ADEA, that: (a) your waiver and release do not apply
to any rights or claims that may arise after the execution date of this
Agreement; (b) you have been advised hereby that you have the right to consult
with an attorney prior to executing this Agreement; (c) you have twenty-one (21)
days to consider this Agreement (although you may choose to voluntarily execute
this Agreement earlier); (d) you have seven (7) days following the execution of
this Agreement by the parties to revoke the Agreement; and (e) this Agreement
will not be effective until the date upon which the revocation period has
expired, which will be the eighth day after this Agreement is executed by you,
provided that FCG has also executed this Agreement by that date ("Effective
Date").
17. Section 1542 Waiver. In giving the above release, which includes claims
which may be unknown to you at present, you acknowledge that you have read and
understand Section 1542 of the California Civil Code which reads as follows: "A
general release does not extend to claims which the creditor does not know or
suspect to exist in his favor at the time of executing the release, which if
known by him must have materially affected his settlement with the debtor." You
hereby expressly waive and relinquish all rights and benefits under that section
and any law of any jurisdiction of similar effect with respect to your release
of any unknown or unsuspected claims you may have against an FCG Company.
18. Indemnification and Attorneys' Fees. You understand and agree that if
you hereafter commence, join in, or in any manner seek relief through any
lawsuit, charge or complaint with any court, administrative agency, governmental
authority or otherwise in any matter arising out of, based upon, or relating to
the claims released in this Agreement, then you will pay FCG in addition to any
other expenses, costs or damages caused to FCG thereby, all FCG's attorneys'
fees incurred in defending or otherwise responding to such lawsuit, charge, or
complaint. This section will not apply to any claim brought by you under the
ADEA or to challenge the validity of the waiver in this Agreement of any such
claim or any claim to enforce FCG's obligations hereunder or any rights you may
have as an FCG stockholder.
19. Miscellaneous. This Agreement constitutes the entire agreement between
you and FCG with regard to this subject matter. It is entered into without
reliance on any promise or representation, written or oral, other than those
expressly contained herein, and it supersedes any other such promises,
warranties or representations. This Agreement may not be modified or amended
except in a writing signed by both you and FCG. This Agreement will bind and
inure to the benefit of the heirs, personal representatives, successors and
assigns of both you and FCG. If any provision of this Agreement is determined to
be invalid or unenforceable, in whole or in part, this determination will not
affect any other provision of this Agreement and the provision in question will
be modified by the court so as to be rendered enforceable. This Agreement will
be deemed to have been entered into and will be construed and enforced in
accordance with the laws of the State of California as applied to contracts made
and to be performed entirely within California.
Xxxxx, we wish you all the best in wherever your future endeavors may take
you.
If this Agreement is acceptable to you, please sign below and return the
original to Jan Blue at First Consulting Group, Inc., 000 Xxxx Xxxxx Xxxxxxxxx,
0xx Xxxxx, Xxxx Xxxxx, Xxxxxxxxxx 00000.
Sincerely,
FIRST CONSULTING GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx 3/31/06
----------------------------------------------------
Xxxxxxx X. Xxxxxxxx Date
Vice President and General Counsel
AGREED:
/s/ Xxxxxxxx Xxxxxx 3/31/06
----------------------------------------------------
Xxxxxxxx Xxxxxx Date
cc: Jan Blue, Vice President
