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SEPARATION AGREEMENT
This AGREEMENT (the "Agreement") by and between InfoCure Corporation, a
Delaware corporation with its principal place of business at 000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxx, XX 00000 (the "Company"), and Xxxxxxxxx X. Fine, an
individual (the "Executive") is entered into this 6th day of June, 2001.
WHEREAS, the Executive has been employed by the Company as its
President and Chief Executive Officer, and later as its Chairman of the Board of
Directors, pursuant to that certain Employment Agreement dated November 10, 2000
(the "Employment Agreement") attached hereto as Exhibit 1; and
WHEREAS, the Executive and the Company have agreed to mutually
terminate Executive's relationship with the Company, and the Executive shall
resign from his position as Chairman of the Board of Directors of the Company
and from any other position(s) he currently holds with the Company, and the
Company's Board of Directors (the "Board") has agreed to accept the Executive's
resignation; and
WHEREAS, the Company and the Executive wish to amicably resolve the
Executive's separation from the Company and establish the Executive's severance
arrangement, the terms of which shall replace and supercede those set forth in
sections 4 and 5 of the Employment Agreement.
NOW, THEREFORE, in consideration of the promises and conditions set
forth in this Agreement, the sufficiency of which is hereby acknowledged, the
Company and the Executive agree as follows:
1. SEPARATION. By mutual agreement, the Executive has tendered and the
Board, on behalf of the Company, has accepted the Executive's resignation as the
Company's Chairman of the Board of Directors, as a member of the Board, as an
employee of the Company, and from any and all other position(s) that he may hold
with the Company (including those with any or all of the Company's predecessors,
subsidiaries or affiliates), effective June 6, 2001 (the "Separation Date"). The
Executive and the Company agree that as of the Separation Date, all salary,
benefits and other compensation otherwise payable to the Executive under section
2 of the Employment Agreement will cease, and any benefits the Executive has or
might have under the Employment Agreement, or under any Company-provided benefit
plan, program or practice will terminate, except as required by federal or state
law, or as otherwise described below.
2. CONSIDERATION. In return for the execution of this Agreement,
including the release of claims in section 3(a) of the Agreement, the Company
agrees to provide the Executive with the following:
(a) MONETARY CONSIDERATION. The Company agrees to provide the
Executive severance pay in the amount of seven hundred and
fifty thousand dollars ($750,000), less any and all applicable
local, state and federal taxes and withholdings (the "Monetary
Consideration"), in the net amount of four hundred eighty four
thousand one hundred twenty five dollars ($484,125.00) within
ten (10) days following the Executive's execution of
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this Agreement (provided that the Executive has not timely
revoked his acceptance of this Agreement). The Executive
agrees that immediately upon his receipt of the Monetary
Consideration, the net amount of the Monetary Consideration
shall be applied towards, and the Executive authorizes the
Company to apply the net amount of the Monetary Consideration
towards: (i) any taxes and withholding payable to the Company
as a result of the consideration provided in the Deferred
Compensation Agreement between the Executive and Company, (ii)
the interest owed by the Executive through and including March
31, 2001, in the amount of two hundred and twenty-three
thousand seven hundred and seventy-seven dollars
($223,777.00), under the Amended and Restated Promissory Note
dated March 5, 2001 and payable to the Company in the
principal amount of three million one hundred and fifteen
thousand seven hundred and sixteen dollars and thirty-seven
cents ($3,115,716.37); and (iii) the interest owed by the
Executive through and including March 31, 2001, in the amount
of one hundred and ninety-three thousand three hundred
thirty-six dollars ($193,336.00), under the Promissory Note
dated June 30, 2000 and payable to the Company in the
principal amount of two million six hundred and ninety-one
thousand eight hundred and eighty-two dollars and twenty-five
cents ($2,691,882.25), and a balance in the amount of
thirty-two thousand two hundred and fifty-nine dollars and
fifty cents ($32,259.50) shall be paid to the Executive. The
Executive acknowledges that the Monetary Consideration does
not include payment for any wages or other compensation
(including, but not limited to reimbursable business expenses)
due to him by the Company, including, but not limited to under
the Employment Agreement, all of which was paid to the
Executive on or before the Separation Date. If the Monetary
Consideration is not paid to the Executive within the time
specified in this paragraph 2(a), this Agreement shall be null
and void.
(b) EXTENSION OF MATURITY DATE. The Company agrees to amend the
Amended and Restated Promissory Note dated March 5, 2001 and
the Promissory Note dated June 30, 2000 (collectively, the
"Notes") in the form provided in EXHIBIT A to this Agreement
to: (i) extend the maturity dates thereunder to December 31,
2002 (the "Maturity Date") and (ii) provide that any interest
accrued on the Notes after March 31, 2001 shall be due and
payable on the Maturity Date. The Executive agrees to execute
the amendment to the Notes in the form provided in EXHIBIT A
to this Agreement. The Executive further agrees to execute a
pledge agreement, in the form provided in EXHIBIT B to this
Agreement, pursuant to which the Executive will grant to the
Company a first lien security interest in one million
(1,000,000) shares of Company common stock owned by the
Executive to be held as security for repayment of the Notes.
(c) CONTINUATION OF HEALTH AND DENTAL INSURANCE. The Company
agrees to provide the Executive with medical and dental
insurance coverage equivalent to the medical and dental
insurance coverage enjoyed by the Executive on the Separation
Date from the effective date of this
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Agreement through June 6, 2003. Thereafter, the Executive will
be personally responsible for any and all medical and dental
insurance policies, coverage and payments.
(d) VESTING OF EQUITY. The Company agrees that as of the effective
date of this Agreement: (i) all unexercised and unvested stock
options then held by the Employee shall become exercisable in
full (the "Vesting Date"); and (ii) the Executive's right to
exercise his stock options (except for the options described
in section 5 below) will terminate on the date that is five
(5) years from the Vesting Date (provided, however, if the
Executive violates any of the provisions of section 6 of the
Employment Agreement, and does not cure such violation(s) to
the Company's reasonable satisfaction within ten (10) days of
receiving written notice of such violation from the Company,
the right to exercise his stock options shall terminate
immediately upon written notice from the Company to the
Executive regarding such violation); and further provided that
the Executive agrees that upon his exercise of any and all of
the stock options he shall either: (x) grant to the Company a
first lien security interest in the purchased shares to the
Company as collateral for the Notes pursuant to a pledge
agreement in the form provided in Exhibit B to this Agreement,
or (y) apply any and all proceeds, net of the exercise cost
and net of applicable withholding taxes, from the sale of any
shares purchased upon exercise of such stock options towards
repayment of the Notes. The Executive agrees that his right to
exercise stock options from time to time is subject to his
delivery to the Company, concurrently with his exercise of the
stock option, of payment as determined by the Company of any
federal, state or local withholding taxes required by law to
be withheld. The Executive acknowledges that the amendments
described in this section 2(e) may cause an incentive stock
option to be treated as a nonqualified stock option. A list of
all options subject to this paragraph 2(a) is attached to this
Agreement at Exhibit C. Copies of the Company's 1996 and 2000
stock option plans are attached hereto as Exhibit D and E. The
terms of this paragraph shall supercede and amend any terms or
conditions of any agreements or plans relating to Executive's
stock options that are inconsistent with this paragraph.
(e) REIMBURSEMENT OF ATTORNEY FEES. The Company agrees to
reimburse the Executive for legal fees incurred by him, up to
a maximum of fifteen thousand dollars ($15,000), in connection
with the negotiation of this Agreement upon the Executive's
submission to the Company of an expense report and supporting
documentation consistent with the Company's standard business
practices.
(f) TAXES. The Executive agrees to indemnify the Company and hold
the Company harmless from any and all claims or penalties
asserted against the Company for any failure to pay taxes due
on any consideration provided by the Company pursuant to this
Agreement. The Executive expressly acknowledges that the
Company has not made, nor herein
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makes, any representation about the tax consequences of any
consideration provided by the Company to the Executive
pursuant to this Agreement.
3. RELEASES.
(a) EXECUTIVE RELEASE. In exchange for the consideration outlined
in section 2 of this Agreement, which the Executive
acknowledges he would not otherwise be entitled to receive,
the Executive hereby fully, forever, irrevocably and
unconditionally releases, remises and discharges the Company
and its current and former officers, directors, stockholders,
corporate affiliates, subsidiaries, parent companies, agents,
attorneys, and employees (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 he ever had or now has against any and all of the
Released Parties, including, but not limited to, all claims
arising out of his 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.ss.2000e ET SEQ.,
the Age Discrimination in Employment Act, 29 U.S.C.,ss.621 ET
SEQ., the Americans With Disabilities Act of 1990, 42
U.S.C.,ss.12101 ET SEQ., and similar state or local statutes,
including, but not limited to the Georgia Fair Employment
Practices Act, Ga. Code Xxx.ss.45-19-20 ET SEQ., the Equal
Employment for Persons With Disabilities Law, Ga. Code
Xxx.ss.34-64-1 ET SEQ., the Age Discrimination Act, Ga. Code
Xxx.ss.34-1-2, the Human Rights and Opportunities Act, Conn.
Gen. Stat.ss.46A-51 ET SEQ. and the Massachusetts Fair
Employment Practices Act, M.G.L. c.151B,ss.1 et seq., all as
amended; all claims arising out of the Fair Credit Reporting
Act, 15 U.S.C.ss.1681 ET SEQ.; the Worker Adjustment and
Retraining Notification Act, 29 U.S.Css.2101 ET SEQ.; the
Employee Retirement Income Security Act of 1974 ("ERISA"), 29
U.S.C.ss.1001 ET seq., all as amended; and all common law
claims, including but not limited to, actions in tort,
defamation and breach of contract, claims to any additional
ownership interest in the Company, contractual or otherwise,
including but not limited to claims to additional stock or
stock options, and all claims or damages arising out of the
Executive's employment with or separation from the Company
(including without limitation claims for retaliation) under
any common law theory or any federal, state or local ordinance
not expressly referenced above. Nothing in this Agreement
purports to affect the Executive's ownership of shares in the
Company or his ability to exercise options or acquire shares
under any stock option or restricted stock agreement with the
Company, except as may be limited or amended by this
Agreement.
(b) COMPANY RELEASE. In exchange for the Executive's execution of
this Agreement, including the release of claims in paragraph
3(a) above, the
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Company hereby fully, forever, irrevocably and unconditionally
releases, remises and discharges the Executive and his agents,
successors, assigns or heirs from any and all claims, charges,
complaints, contracts, agreements, promises, doings,
omissions, demands, actions, damages, executions, obligations,
liabilities and expenses, of every kind and nature, both in
law and equity, arising out of the Executive's employment with
the Company and separation from the Company including, but not
limited to, damages arising out of all common law tort, breach
of contract and other common law claims and damages, and all
claims and damages under any federal, state or local statute
or ordinances not expressly referenced above specifically
excluding, however, any criminal offense under any federal,
state or local law.
4. RETURN OF COMPANY PROPERTY. The Executive agrees that he will return
to the Company, within five (5) days of his execution of this Agreement, all
Company property and equipment in his possession or control, including, but not
limited to: all items defined as "Property" in section 6(A)(ii) of the
Employment Agreement, a Company-provided automobile, a Company-provided cellular
phone, financial information, customer information, customer lists, employee
lists, Company files, notes, contracts, drawings, records, business plans,
specifications, computer-recorded information, computer software, tangible
property, credit cards, entry cards, identification badges, keys, and any
materials of any kind which contain or embody any proprietary or confidential
material of the Company (and all reproductions thereof). The Executive
acknowledges that he has left intact all electronic Company documents, including
those which he developed or helped develop during his employment with the
Company. The Executive further acknowledges that he will cancel, and authorizes
the Company to cancel, all accounts for his benefit, if any, in the Company's
name including, but not limited to: credit cards, telephone charge cards,
cellular phone accounts, pager accounts, automobile accounts and computer
accounts.
5. CANCELLATION OF OPTION. The Executive agrees and allows the Company
to cancel the stock options previously granted to him by the Company on June 9,
1999 for the purchase of nine hundred thirty-one thousand three hundred and
thirty-four (931,334) shares.
6. NON-COMPETITION, NON-DISCLOSURE AND NON-SOLICITATION. The Executive
acknowledges his obligation to keep confidential all non-public, Trade Secret
(as defined in section 6(B)(ii) of the Employment Agreement) information and
Confidential Information (as defined in section 6(C)(ii) of the Employment
Agreement) concerning the Company, which he acquired during the course of his
employment and directorship with the Company. The Executive further acknowledges
his non-solicitation obligations as stated in sections 6(E) of the Employment
Agreement, the terms of which shall remain in full force and effect and are
wholly incorporated by reference into this Agreement. The Executive further
acknowledges his non-competition obligations as stated in sections 6(F) of the
Employment Agreement, the terms of which shall remain in full force and effect
for a period of six (6) months from the date hereof and are wholly incorporated
by reference into this Agreement.
7. NON-DISPARAGEMENT. The Executive understands and agrees that as a
condition for payment to him of the consideration described in section 2 of this
Agreement, he shall not
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make any false, disparaging, or derogatory statements in public or private
regarding either the Company, any of the other Released Parties or the Company's
business affairs and financial condition. The Company understands and agrees
that as a condition of the Executive's acceptance of the terms of this
Agreement, it shall direct its directors and its Section 16 officers not to make
any false, disparaging, or derogatory statements regarding the Executive.
Nothing in this section shall bar the Executive or the Company or any Released
Party from providing truthful testimony in any legal proceeding or in
cooperation with any governmental agency or from discussing matters with their
attorneys.
8. CONFIDENTIALITY. The Executive understands and agrees 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
the Executive, his agents and representatives, and none of the above shall be
disclosed, except to the extent required by the Securities and Exchange
Commission, federal or state law or as otherwise agreed to in writing by the
authorized agent of each party. Nothing in this section shall bar the Executive
from providing truthful testimony in any legal proceeding or in cooperation with
any governmental agency.
9. PUBLIC ANNOUNCEMENT. The Company agrees to provide the Executive
with the text of any statement announcing his separation from the Company at
least twenty-four (24) hours in advance of any such statement is released to the
public, and further agrees to allow the Executive to submit to the Company
comments regarding the statement for the Company's consideration.
10. COOPERATION. For a period of four (4) years following the date of
this Agreement, or such longer period as the Executive and the Company may
mutually agree, the Executive agrees to fully cooperate with the Company with
respect to its corporate relationships and in connection with any defense of or
prosecution by the Company regarding any litigation in which the Company may be
involved as a party or non-party from time to time. The Company agrees to
reimburse the Executive for any reasonable out-of-pocket expenses, including
reasonable attorneys' fees, that he incurs in connection with his cooperation
under this section, subject to his submission to the Company of documentation of
such out-of-pocket expenses and attorneys fees to the Company's reasonable
satisfaction.
11. NATURE OF AGREEMENT. The Executive and the Company understand and
agree that this Agreement is a resignation agreement and does not constitute an
admission of liability or wrongdoing on the part of any party to this Agreement.
12. AMENDMENT. This Agreement shall be binding upon the parties and may
not be abandoned, supplemented, changed or modified in any manner, orally or
otherwise, except by an instrument in writing of concurrent or subsequent date
signed by a duly authorized representative 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.
13. VALIDITY. Each party represents and warrants to the other that this
Agreement is valid and binding and enforceable against such party and the
Company represents and warrants that the terms of this Agreement have been
approved through all necessary corporate actions. Should any provision of this
Agreement be declared or be determined by any court of competent
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jurisdiction to be illegal or invalid, the validity of the remaining parts,
terms, or provisions shall not be affected and said illegal and invalid part,
term or provision shall be deemed not to be a part of this Agreement.
14. ENTIRE AGREEMENT. This Agreement contains and constitutes the
entire understanding and agreement between the parties with respect to the
Executive's resignation, severance and settlement and cancels all related
previous oral and written negotiations, agreements, commitments, and writings in
connection therewith, including, but not limited to the Employment Agreement.
Nothing in this section, however, shall modify, cancel or supercede the
Company's obligations under section 2G of the Employment Agreement and the
Executive's obligations provided in section 6 (as modified hereby) of the
Employment Agreement, which are wholly incorporated by reference into this
Agreement and shall remain in full force and effect.
15. APPLICABLE LAW. This Agreement shall be governed by the laws of the
State of Connecticut, without regard to conflict of laws provisions. The
Executive irrevocably submits to the jurisdiction of the courts of the State of
Connecticut, or if appropriate, a federal court located in Connecticut (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. ACKNOWLEDGEMENTS. The Executive acknowledges that he has been given
twenty-one (21) days to consider this Agreement; that the Company advised him to
consult with an attorney of his choosing prior to signing this Agreement; and
that he has consulted an attorney who, in fact, reviewed this Agreement prior to
its execution by the Executive. Further, the Executive acknowledges that the
Company informed him that he may revoke his assent to this Agreement for a
period of seven (7) days after the execution of this Agreement, and the
Agreement shall not be effective or enforceable until the expiration of this
seven (7) day revocation period. The Executive understands and agrees that, by
entering into this Agreement, he is waiving any and all rights or claims he
might have under the Age Discrimination In Employment Act, as amended by the
Older Workers Benefit Protection Act, and that he has received consideration
beyond that to which he was previously entitled.
17. VOLUNTARY ASSENT. The Executive affirms that no other promises or
agreements of any kind have been made to or with him by any person or entity
whatsoever to cause him to sign this Agreement, and that he fully understands
the meaning and intent of this Agreement. The Executive states and represents
that he has had an opportunity to fully discuss and review the terms of this
Agreement with an attorney. The Executive further states and represents that he
has carefully read this Agreement, understands its contents, freely and
voluntarily assents to all of its terms and conditions, and signs his name to
this Agreement as his own free act.
18. SUBSEQUENT AGREEMENTS. The Executive agrees to execute such further
agreements and instruments as the Company shall reasonably request in order to
effectuate the provisions of this Agreement
19. COUNTERPARTS. This Agreement may be executed in two (2) signature
counterparts, each of which shall constitute an original, but all of which taken
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, all parties have set their hand and seal to this
Agreement as of the date written below.
INFOCURE CORPORATION
By: /s/ Xxxxxx Xxxxx Date: June 6, 2001
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Xxxxxx Xxxxx
EXECUTIVE
/s/ Xxxxxxxxx X. Fine Date: June 6, 2001
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Xxxxxxxxx X. Fine
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