December 29, 1997
Xx. Xxxxxx X. Fine
000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Dear Xxx:
This letter sets forth our agreement (the "Agreement") with respect to your
resignation as an employee, officer and member of the board of directors of
Transworld HealthCare, Inc. a New York corporation (the "Company"), and any and
all of its subsidiary companies and affiliated companies (the Company and such
subsidiary and affiliated companies hereinafter individually and collectively
called the "Companies") of which you may be an employee, officer or director.
The terms of this Agreement supersede and replace the terms of the Employment
Agreement dated as of October 31, 1994 by and between you and the Company (the
"Employment Agreement").
1. Resignation. You hereby irrevocably resign as an officer, director
and employee of each of the Companies and from any other position you hold with
any of the Companies not otherwise set forth herein or any of their benefit or
other plans or trusts, effective on the later of (i) the execution and delivery
hereof or (ii) the close of business on December 21, 1997 (the "Resignation
Date").
2. Severance. In consideration of your entering into this Agreement
and performing your obligations hereunder, and in lieu of any other
termination, severance or other payment of benefits of any kind whatsoever, the
Company will pay or provide to you the following (in each case, where
appropriate, less applicable withholding and other taxes):
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December 29, 1997
Page 2
a. Payment. The Company will pay you consideration
pursuant to a Consulting Agreement between us dated as of December
22, 1997, a copy of which is attached hereto, marked as Exhibit "A"
and incorporated herein by this reference (the "Consulting
Agreement"); provided, however, that the Consulting Agreement shall
only become effective ten (10) days after the effective date of
this Agreement (the "Effective Date").
b. Options. You currently hold options to purchase 175,000
shares of common stock of the Company. As of the Resignation Date, 115,000 of
these options are vested and exercisable (the "Vested Options"). The term of
any such Vested Options that would otherwise have expired on or before
September 20, 1998 is extended to and including September 20, 1998. In
addition, you may exercise all or any portion of such Vested Options (to the
extent not previously exercised) at any time commencing on the Effective Date
through and including September 20, 1998. All corporate action necessary to
effectuate such extension has been taken.
c. Expenses. The Company shall reimburse you on the
Effective Date for all documented customary expenses incurred by
you in connection with your duties through and including the
Resignation Date.
d. Continued Medical Coverage. In the event that you elect
COBRA continuation of your coverage under the Company's medical and
hospitalization plan (the "Medical Plan") for periods after the date your
coverage would otherwise terminate on account of your resignation of
employment, the Company will pay the monthly premium required to maintain such
coverage for each month of such coverage to which you are entitled under the
terms of the Medical Plan and applicable law, up to a maximum of 18 months.
e. Vacation Pay. Between January 1, 1998 and January
10, 1998, the Company will pay to you, in in a single lump sum
payment and less any applicable withholdings, the aggregate sum of
Xx. Xxxxxx X. Fine
December 29, 1997
Page 3
$19,600 which represents all earned and unused vacation accrued
through the Resignation Date.
Except for any consideration to which you may become entitled pursuant to the
Consulting Agreement, you acknowledge and agree that the payments and benefits
provided for in this Paragraph 2 are in full discharge of any and all of the
Companies' liabilities and obligations to you, including without limitation any
and all obligations arising under the Employment Agreement or under any alleged
written or oral policies, plans, practices or procedures of any of the
Companies, or agreements, understandings or arrangements between you and any of
the Companies, except with respect to any benefits to which you may be entitled
pursuant to the terms of any tax-qualified retirement plan of any of the
Companies in which you are a participant.
3. Trade Secrets; Confidentiality. You recognize and acknowledge that,
in connection with your employment with the Companies, you have had access to
valuable trade secrets and confidential information of the Companies including,
but not limited to, customer lists, business methods and processes, marketing,
promotional, pricing, financial information and data relating to employees and
consultants (collectively "Confidential Information") and that such
Confidential Information was made available to you only in connection with the
furtherance of your employment with the Companies. You agree that hereafter,
you shall not disclose any of such Confidential Information to any individual,
corporation, partnership, association, joint-stock company, trust,
unincorporated organization, joint venture, court or government (or political
subdivision or agency thereof), except that disclosure of Confidential
Information will be permitted (i) to the Companies and their respective
advisors; (ii) if such Confidential Information has previously become available
to the public through no fault of yours; (iii) if required by any court or
governmental agency or body or if otherwise required by law; (iv) if necessary
to establish or assert your rights hereunder; or (v) if expressly consented to
in writing by the Company.
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December 29, 1997
Page 4
4. Restrictive Covenants.
a. You agree that for a period commencing with the execution
hereof through December 31, 1998, you will not directly or indirectly hire or
solicit any employee and/or agent of the Companies or any person who was an
employee and/or agent of the Companies at any time within the three month
period immediately prior to the Effective Date, or encourage any such employee
and/or agent of the Companies to terminate such employment or agency
relationship.
b. You acknowledge and agree that the agreements set
forth in Paragraphs 3. and 4a. are reasonable and valid in
geographical and temporal scope and in all other respects. If any
court determines that any of the provisions of Paragraphs 3. and/or
4a. or any part(s) thereof, are invalid or unenforceable, the
remainder of such provisions and/or part(s) thereof shall not
thereby be affected and shall be given full force and effect,
without regard to the invalid or unenforceable part(s).
c. If any court determines that any of the provisions
of Paragraphs 3. and/or 4a. or any part(s) thereof, are invalid or
unenforceable for any reason, such court shall have the power to
modify such provisions and/or parts and, in its modified form, the
provisions of Paragraphs 3. and/or 4a. shall then be valid and
enforceable.
5. Releases; Covenants Not to Xxx.
a. Release of the Companies. You, for yourself and your
heirs, dependents, executors, administrators, legal representatives, successors
and assigns (collectively, the "Releasors"), hereby release, remise, and
forever discharge each of the Companies, each of their predecessors, successors
and assigns, each of their employee benefit and/or pension plans and funds,
each of the foregoing's present and former directors, officers, partners,
stockholders, employees, agents, fiduciaries and trustees
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December 29, 1997
Page 5
and each of the foregoing's heirs, executors, administrators, legal
representatives, successors and assigns (collectively, the "Company Releasees")
of and from any and all actions, causes of action, suits, debts, liabilities,
claims and potential claims, sums of money, covenants, agreements, promises,
damages, judgments and demands whatsoever, in law or equity, whether known or
unknown, which against the Company Releasees or any of them, any of the
Releasors ever had, now has, or which he or it hereafter can, shall or may
have, for, upon, or by reason of any fact, matter, cause or thing whatsoever
from the beginning of the world to the Effective Date, including, without
limitation, any claims under the Age Discrimination in Employment Act, as
amended, arising prior to the Effective Date, other than any claim arising out
of this agreement and any indemnification obligations of the Company to you
with respect to claims of third parties pursuant to the Company's existing
indemnification policies covering its officers and directors (collectively the
"Discharged Company Matters"). You covenant that you shall never commence,
institute, maintain, prosecute or participate in any action or proceeding of
any kind, judicial or administrative, based in whole or in part on any of the
Discharged Company Matters, except to the extent required pursuant by the order
of a court of competent jurisdiction. You represent that, as of the date of
your execution of this Agreement, you have not taken any action referred to in
the preceding sentence.
b. Release of You. The Companies, for themselves and
their successors and assigns (collectively the "Company
Releasors"), hereby release, remise and forever discharge you and
each of your heirs, executors, administrators, legal representatives and
assigns (collectively the "Fine Releasees") of and from any and all actions,
causes of action, suits, debts, liabilities, claims and potential claims, sums
of money, covenants, agreements, promises, damages, judgments and demands
whatsoever, in law or equity, known or unknown, which against the Fine
Releasees or any of them, any of the Company Releasors ever had, now has, or
which it hereafter can, shall or may have, for, upon or by reason of any fact,
matter, cause or thing whatsoever from the beginning of the world to the
Effective Date (the "Discharged Fine Matters").
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December 29, 1997
Page 6
The Company covenants that its shall never commence, institute, maintain,
prosecute or participate in as a party any action, or proceeding of any kind,
judicial or administrative, based in whole or in part on any of the Discharged
Fine Matters except to the extent required pursuant to the order of a court of
competent jurisdiction. The Company represents that, as of the date of this
Agreement, it has not taken any action referred to in the preceding sentence.
c. Relief. Any breach of the Trade Secrets,
Confidentiality or Restrictive Covenant provisions of Paragraphs 3
and 4a. above, or the Covenants Not to Xxx provision contained in
Paragraphs 5a. and 5b. above, shall be considered a material breach
of this Agreement. In the event of a breach or threatened breach
by you of any of the provisions contained in Xxxxxxxxxx 0, 0x., 0x.
or 5b. hereof, the Company shall be entitled to a temporary
restraining order, a preliminary injunction and/or a permanent
injunction restraining you from breaching or continuing to breach
any of said paragraphs. Nothing herein contained shall be
construed as prohibiting the Company from pursuing any other
remedies that may be available to it for such breach or threatened
breach, including the recovering of damages.
6. Miscellaneous.
a. The making of this Agreement is not intended, nor shall it
be construed, as an admission that any of the Companies or any of the Company
Releasees has violated any federal, state or local law, ordinance or
regulation, breached any contract or committed any wrong whatsoever against
you.
b. You acknowledge that you have read this Agreement in its
entirety, fully understand all of its terms and their significance and
knowingly and voluntarily assent to all the terms and conditions contained
herein.
c. The parties shall cooperate and take such actions,
and execute such other documents, as either party may reasonably
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December 29, 1997
Page 7
request in order to carry out the provisions or purposes of this Agreement.
d. If any clause of provision of this Agreement shall be held
to be invalid or unenforceable, such clause or provision shall be construed and
enforced as if it had been drawn so as not to be invalid or unenforceable and
such invalidity or unenforceability shall not affect or render invalid or
unenforceable any other clause or provision of this Agreement.
e. This Agreement and the Consulting Agreement collectively
set forth the parties' final and entire agreement, and supersede any and all
prior understandings and/or agreements with respect to their subject matter.
This Agreement can be amended, supplemented or changed, and any provision
hereof can be waived, only by a written instrument signed by the party against
whom enforcement of any such amendment, supplement, change or waiver is sought.
f. The paragraph headings in this Agreement are for
reference purposes only and shall not affect in any way the meaning
or interpretation of this Agreement.
g. This Agreement shall be governed by and construed and
interpreted in accordance with the internal laws of the State of New York
(without referenced to its rules as to conflicts of law). Any legal action or
proceeding with respect to or arising out of this Agreement shall be brought in
the courts of the State of New York or of the United States of America, located
in the County, City and State of New York, and, by execution and delivery of
this Agreement, each of the parties hereby accepts, generally and
unconditionally, the exclusive jurisdiction of such courts. Each of the parties
hereby irrevocably waives, in connection with any such action or proceeding,
any objection, including without limitation, any objection to the laying of
venue or based on the grounds of forum non conveniens, which he or it may now
or hereafter have to the bringing of any such action or proceeding in such
jurisdiction.
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December 29, 1997
Page 8
h. This Agreement may be executed in two counterparts,
each of which shall be deemed an original, but both of which taken
together shall constitute one and the same instrument.
7. Revocation. You have twenty-one (21) calendar days from your
receipt of this Agreement to sign and return it to the Company. We advise you
to consult with an attorney before signing this Agreement. You may sign this
Agreement prior to the expiration of such twenty-one (21) day period. In
addition, you will have seven (7) days after signing this Agreement to revoke
your acceptance of its terms by giving written notice of revocation by personal
delivery to Xxxxxxx X. Xxxxxxxx at the address of the Company shown on this
first page of this letter. This Agreement and the Consulting Agreement will not
become effective (and you will not receive any payments or other benefits under
this Agreement or the Consulting Agreement) until you have signed this
Agreement and the revocation period has expired.
Xx. Xxxxxx X. Fine
December 29, 1997
Page 9
If the foregoing correctly sets forth your understanding of our agreement,
please so indicate by signing and returning to us a copy of this Agreement
within twenty-one (21) calendar days from your receipt of this Agreement.
Very truly yours,
TRANSWORLD HEALTHCARE, INC.
By:/s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Xxxxxxx X. Xxxxxxxx
Vice President and General Counsel
Accepted and agreed to this 29th day of December, 1997
/s/ Xxxxxx X. Fine
-------------------------------------
Xxxxxx X. Fine
Sworn to before me this 29th day of December, 1997
/s/ Xxxxxxxx X. Xxxxxxx
-------------------------------------
Notary Public
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