EX-99.1 2 dex991.htm SEPARATION AGREEMENT, WAIVER AND GENERAL RELEASE SEPARATION AGREEMENT, WAIVER AND GENERAL RELEASE
Exhibit 99.1
SEPARATION AGREEMENT, WAIVER AND GENERAL RELEASE
This SEPARATION AGREEMENT AND GENERAL RELEASE (this “Agreement”) is made and entered into as of this 23rd day of November, 2010, by and between Xxxxxx Xxxxxx (“Executive”) and Addus HealthCare, Inc., an Illinois corporation (the “Company”) and a wholly-owned subsidiary of Addus HomeCare Corporation, a Delaware corporation (“Addus HomeCare”) (each a “Party,” and, collectively, the “Parties”).
1. Separation from Employment; Cooperation.
(a) On October 20, 2010 (the “Notice Date”), Executive resigned from her employment with the Company, effective November 19, 2010 (the “Separation Date”). The Parties agreed that Executive’s employment with the Company will terminate as of the Notice Date. The Parties further agreed Executive will continue to receive regular base salary payments, less applicable deductions and withholdings, in accordance with the Company’s usual and customary payroll practices, and benefits at the same level offered to and currently enrolled in by the Executive, through the Separation Date.
(b) Executive agrees to make herself available, at the Company’s request, at reasonable times and in reasonable places, to cooperate with and to assist management of the Company and/or its counsel in prosecuting or defending against any lawsuit, complaint, claim,
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charge or investigation arising out of any transactions or conduct of which she may have knowledge. Executive will be entitled to reimbursement for her reasonable business expenses incurred in connection with such assistance, subject to and in accordance with the Company’s usual and customary policies and procedures concerning reimbursement of business expenses.
(a) Provided that Executive agrees to and accepts the terms of this Agreement, and does not timely revoke her acceptance, the Company shall pay to Executive the amount of $96,406.02, less applicable deductions and withholdings (the “Separation Benefits”), in equal installments and in accordance with the Company’s regular and customary payroll practices, over the period commencing on November 20, 2010 and ending on May 20, 2011 (the “Benefits Period”); provided, however, that the Company’s obligation to continue to provide Separation Benefits shall terminate upon Executive’s commencement of employment with a new employer.
(b) Executive agrees and acknowledges that her receipt of the Separation Benefits is subject to and conditioned upon her strict compliance with this Agreement, including without limitation the post-employment restrictions set forth in Sections 7, 8, 9, 10 and 11 below. Executive further agrees that, should she fail to comply with any such post-employment restrictions, the Company, in addition to any other legal or equitable remedy available to it, shall be entitled to immediately and forever cease payment of the Separation Benefits, and to recover any consideration already paid to Executive under this Agreement, including without limitation the Separation Benefits.
(c) Executive agrees and acknowledges that, other than as set forth in this Agreement, Executive is not entitled to and shall not receive any additional compensation, payments or benefits of any kind from the Company, and that no representations or promises to the contrary have been made to Executive. Executive further agrees and acknowledges that, but for entering into and complying with the terms of this Agreement, Executive would not be entitled to receive the payments and benefits set forth in this Agreement, including without limitation the Separation Benefits, that such payments and benefits exceed any consideration to which she would otherwise be entitled, and that such payments and benefits constitute good and sufficient consideration for the promises and covenants of Executive set forth herein.
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For purposes of this Section 4, the “Releasees” shall include the Company, its parents (including without limitation Addus HomeCare), subsidiaries and affiliates, and their past and present officers, directors, employees, stockholders, owners, representatives, assigns, attorneys, agents and insurers, and their employee benefit programs and plans (including without limitation the 2006 Plan and the 2009 Plan) and the trustees, administrators, fiduciaries and insurers of such programs and plans.
Without limiting the foregoing general waiver and release, Executive specifically waives and releases the Releasees from any Claim arising from or related to Executive’s employment with the Company or the termination thereof, including, without limitation:
• | Claims under any federal, state or local discrimination, fair employment practices or other employment-related statute, regulation or executive order prohibiting discrimination or harassment based upon any protected status including, without limitation, race, national origin, age, gender, marital status, disability, veteran status or sexual orientation. Without limitation, specifically included in this Section 4 are any Claims arising under the federal Age Discrimination in Employment Act (the “ADEA”), the Older Workers Benefit Protection Act, the Civil Rights Acts of 1866 and 1871, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Equal Pay Act, the Americans with Disabilities Act, the Worker Adjustment and Retraining Notification Act, the Xxxxxxxx-Xxxxx Act, the Family & Medical Leave Act, the Illinois Human Rights Act, the Illinois Equal Wage Act, the Illinois Minimum Wage Law, the Illinois Right to Privacy in the Workplace Act, the Illinois Genetic Privacy Act, the Illinois Nursing Mothers in the Workplace Act, the Illinois School Visitation Rights Act, the Illinois AIDS Confidentiality Act, the Illinois Adjustment and Retraining Notification Act, the Illinois Victims’ Economic Security and Safety Act, the Illinois Family Military Leave Act and the Illinois Constitution, the Tennessee Human Rights Act, the Tennessee Wage Regulation Act, the Tennessee Equal Pay Act, the Tennessee Handicap Discrimination Act, the Tennessee Smokers’ Rights Law, the Tennessee Public Protection Act, the Tennessee Maternity Leave Law, the Tennessee Breastfeeding Law, the Tennessee Whistleblower’s Law, the Tennessee Labor Laws, the Tennessee Constitution, the Florida Civil Rights Act of 1992, the Florida AIDS, AIDS-Related Complex, and HIV Discrimination Law, the Florida Equal Pay Law, the Florida Wage Discrimination Law, the Florida Law Prohibiting Discrimination on the Basis of Sickle Cell Trait, the Florida Whistleblowers Law, the Florida Domestic Violence Leave Law, the Florida Discrimination Against Members of the National Guard Law, and the Florida Constitution, as such laws have been amended from time to time. |
• | Claims under any other federal, state or local statute, regulation or executive order relating to wages, hours or any other terms and conditions of employment. Without limitation, specifically included in this Section 4 are any Claims arising under the Fair Labor Standards Act, the National Labor Relations Act, the Employee Retirement Income Security Act of 1974, the Consolidated Omnibus Budget Reconciliation Act of 1985, and any similar statute. |
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• | Claims under any common law theory, including without limitation wrongful discharge, breach of express or implied contract, promissory estoppel, unjust enrichment, breach of covenant of good faith and fair dealing, violation of public policy, defamation, interference with contractual relations, intentional or negligent infliction of emotional distress, invasion of privacy, misrepresentation, deceit, fraud and negligence. |
• | Claims under any agreement between Executive and the Releasees, including without limitation the Employment Agreement and the Option Certificates. |
• | Claims under any employee welfare, insurance or severance plan, including without limitation the 2006 Plan and the 2009 Plan. |
• | Any other Claim arising under federal, state or local law. |
Executive explicitly acknowledges that, because she is over forty (40) years of age, she has specific rights under the ADEA, which prohibits discrimination on the basis of age, and that the releases set forth in this Section 4 are intended to release any right that Executive may have to file a claim against the Company alleging discrimination on the basis of age.
Notwithstanding the foregoing, this Section 4 does not:
• | release the Company from any obligation expressly set forth in this Agreement or from any obligation, including without limitation obligations under the Workers Compensation laws, which as a matter of law cannot be released; |
• | prohibit Executive from filing a charge with the Equal Employment Opportunity Commission (“EEOC”); |
• | prohibit Executive from participating in an investigation or proceeding by the EEOC or a similar state or local agency; or, |
• | prohibit Executive from challenging or seeking a determination in good faith of the validity of this release or waiver under the ADEA or impose any condition precedent, penalty, or costs for doing so unless specifically authorized by federal law. |
Executive’s waiver and release, however, are intended to be a complete bar to any recovery or personal benefit by or to Executive with respect to any claim whatsoever, including those raised through a charge with the EEOC, except those which, as a matter of law, cannot be released.
Executive acknowledges and agrees that, but for providing this waiver and release, Executive would not be receiving the consideration provided under the terms of this Agreement, including without limitation the Separation Benefits. Executive further agrees that, should
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Executive breach this Section 4, the Company, in addition to any other legal or equitable remedy available to it, shall be entitled to recover any consideration already paid to Executive under this Agreement, including without limitation the Separation Benefits.
5. Review and Revocation Period.
(a) Executive acknowledges that, before signing this Agreement, she was given a period of 21 days in which to review and consider it; that Executive has, in fact, carefully reviewed this Agreement; and, that she is entering into it voluntarily and of her own free will. Executive further acknowledges that the Company encouraged her in writing to show this Agreement to and discuss it with her attorney before signing it, and that, to the extent Executive wished to do so, she has done so. Executive further acknowledges that, if she executed this Agreement before the end of the 21-day period, such early execution was completely voluntary, and Executive had reasonable and ample time in which to review this Agreement.
(b) Executive agrees that, for a period of seven days after she signs this Agreement, she has the right to revoke it by providing notice, in writing (delivered by registered or certified mail, return receipt requested), to: Xxxx Xxxxxxx, Vice President Human Resources, Addus HealthCare, Inc., 0000 X. Xxxx Xxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000. This Agreement will not become effective and enforceable until after the expiration of the seven-day revocation period.
(c) Executive understands that her acceptance of any payment or benefit set forth in this Agreement at any time more than seven days after she signs this Agreement confirms that she did not revoke her assent to this Agreement and, therefore, that it is effective and enforceable.
(a) At no time between the date of this Agreement and the first anniversary of the date hereof (the “Restrictive Period”) shall Executive, without the prior written consent of the Company, directly or indirectly, in any capacity whatsoever, either on her own behalf or on behalf of any other person or entity with whom she may manage, control participate in, consult with, render services for or be employed or associated, compete with the Company, its parents (including, without limitation, Addus HomeCare), its subsidiaries or affiliates (collectively, the “Addus HealthCare Group”) with respect to the provision of home care services of the type and nature that the Addus HealthCare Group provides, any other business activity in which the Addus HealthCare Group is engaged, or any program or service which is under active development or proposed to be performed by the Addus HealthCare Group, each as of the Notice Date (collectively, the “Business”), in any of the following described manners:
(i) | Engage in, assist or have any interest in, as principal, consultant, advisor, agent, financier or employee, any business entity which is, |
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or which is about to become engaged in, providing goods or services in competition with the Addus HealthCare Group, within a geographic radius of thirty (30) miles from any Addus HealthCare Group branch office; |
(ii) | Solicit or accept any business (or help any other person solicit or accept any business) from any person or entity which on the date of this Agreement is a customer of the Addus HealthCare Group or which during the Restrictive Period becomes a customer of the Addus HealthCare Group; |
(iii) | Solicit, induce or retain (or help any other person solicit, induce or retain) any current or former employee of the Addus HealthCare Group to become associated with, or to perform services on behalf of, Executive or any third party, or otherwise disrupt, impair, damage or interfere with Addus HealthCare Group’s relationships with its employees (for purposes of this Section 7(a)(iii), a “former” employee of the Addus HealthCare Group shall be one who left his or her employment within six months prior to such solicitation, inducement or retention); or, |
(iv) | Induce or attempt to induce (or help any other person induce or attempt to induce) any customer, referral source, supplier, vendor, licensee or other business relation of the Addus HealthCare Group to cease doing business with the Addus HealthCare Group, or in any way interfere with the relationship between any such customer, referral source, supplier, vendor, licensee or business relation, on the one hand, and the Addus HealthCare Group, on the other hand. |
(b) Notwithstanding the foregoing provisions, nothing herein shall prohibit Executive from owning 1% or less of any securities of a competitor, if such securities are listed on a nationally recognized securities exchange or traded over-the-counter.
(c) If, at the time of enforcement of this Section 7, a court or arbitrator holds that the restrictions stated herein are unreasonable under the circumstances then existing, the Parties agree that the maximum period, scope or geographic area reasonable under such circumstances determined to be reasonable under the circumstances by such court or arbitrator shall be substituted for the stated period, scope or area.
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can obtain economic value from its disclosure or use and is the subject of efforts to maintain its secrecy that are reasonable under the circumstances, including without limitation information constituting or concerning: (i) trade secrets; (ii) the business or affairs of the Addus HealthCare Group; (iii) client and customer lists and confidential information; (iv) products or services; (v) fees, costs and pricing structures; (vi) charts, manuals and documentation; (vii) databases; (viii) accounting and business models; (ix) designs; (x) analyses; (xi) drawings, photographs and reports; (xii) computer software; (xiii) copyrightable works; (xiv) inventions, devices, new developments, methods and processes, whether patentable or unpatentable and whether or not reduced to practice; (xv) sales records; (xvi) confidential information concerning employees of the Company, including but not limited to compensation information; and (xvii) other proprietary information. Confidential Information, however, shall not include general “know-how” information acquired by Executive in connection with any employment by any third party or which could have been obtained by her from public sources without the expenditure of significant time, effort and expense.
9. Covenant Regarding Confidential and Proprietary Information.
(a) Executive will promptly disclose in writing to the Company each improvement, discovery, idea, invention and proposed publication of any kind whatsoever, relating to the Business made or conceived by Executive either alone or in conjunction with others, if such improvement, discovery, idea, invention or publication results from or was suggested by Executive’s employment with the Company (whether or not patentable and whether or not made or conceived at the request of or upon the suggestion of the Company, and whether or not during Executive’s usual hours of work, whether in or about the premises of the Addus HealthCare Group and whether prior or subsequent to the execution hereof). Executive will not disclose any such improvement, discovery, idea, invention or publication to any person, entity or governmental authority, except the Company. Each such improvement, discovery, idea, invention and publication shall be the sole and exclusive property of, and is hereby assigned by Executive to the Company, and, at the request of the Company, Executive will assist and cooperate with the Company and any person or entity designated from time to time by the Company to obtain for the Company or its designee the grant of any letters patent in the United States of America and/or such other country or countries as may be designated by the Company, covering any such improvement, discovery, idea, invention or publication, and will in connection therewith execute such applications, statements, assignments or other documents, furnish such information and data and take all such other action (including, without limitation, the giving of testimony) as the Company may from time to time reasonably request. The foregoing provisions of this Section 9 shall not apply to any improvement, discovery, idea, invention of publication for which no equipment, supplies, facilities or confidential and proprietary information of the Addus HealthCare Group was used and which was developed entirely on Executive’s own time, unless (i) the improvement, discovery, idea, invention or publication relates to the Business or the actual or demonstrably anticipated research or development of the Business, or (ii) the improvement, discovery, idea, invention or publication results from any work performed by Executive for the Addus HealthCare Group.
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reputation of the Addus HealthCare Group, or the reputation of any of its current or former directors, officers, employees or stockholders. The Company agrees that it will instruct Xxxx Xxxxxx, Xxxx Xxxxxxx, Xxxxx XxXxxxx, Xxxx Xxxxxxx, Xxxx First, Xxxxx Xxxxxxxx, Xxxxx Xxxxxxxxx, Xxxxx Xxxxxx and Xxxxx Xxxxxxxx not to make any statement, either in writing or orally, that is communicated publicly or is reasonably likely to be communicated publicly, that is reasonably likely to disparage or otherwise harm the reputation of Executive; provided, that the Company shall have no liability for any statement made by any such person so long as it has complied with its obligations set forth in this sentence.
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If to Executive, to:
Xxxxxx Xxxxxx
0000 X. Xxxxxx-Xxxxxxxx Xxxx
Xxxxxxx, XX 00000
If to the Company, to:
Addus HealthCare, Inc.
0000 X. Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: CEO
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy, which shall not constitute notice, to:
Winston & Xxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E-mail: xxxxxxx@xxxxxxx.xxx
Any party may change their address for notice by giving all other parties notice of such change pursuant to this Section 16.
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READ THIS AGREEMENT AND RELEASE AND CAREFULLY CONSIDER ALL OF ITS PROVISIONS BEFORE SIGNING IT; IT INCLUDES A RELEASE AND WAIVER OF KNOWN AND UNKNOWN CLAIMS. CONSULT YOUR ATTORNEY BEFORE SIGNING IT.
XXXXXX XXXXXX | ||
/s/ Xxxxxx Xxxxxx | ||
Date: | November 23, 2010 |
ADDUS HEALTHCARE, INC. | ||
By: | /s/ Xxxx X. Xxxxxx |
Title: | President and CEO | |
Date: | November 22, 2010 |
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