EXHIBIT 10.16
SEPARATION AGREEMENT AND MUTUAL GENERAL RELEASE
This Separation Agreement and Mutual General Release ("Agreement") is made
by and between ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ("Employee") and Vitalink Pharmacy Services,
Inc. ("Vitalink"), this 24th day of July 1997.
In consideration of the covenants undertaken and the mutual releases
contained in this Agreement, and other good and valuable consideration, the
sufficiency of which is hereby acknowledged, the Employee and Vitalink agree as
follows:
1. Resignation Date. The Employee acknowledges that his last day of
employment with Vitalink shall be August 1, 1997 ("Separation Resignation Date")
and that this document acknowledges Employee's resignation of his position as
Chief Executive Officer of Vitalink and his position from the Vitalink Board of
Directors effective as of the sooner of the conclusion of the scheduled Vitalink
Board Meeting on the Separation Resignation Date or 11:59 p.m. on the Separation
Resignation Date provided, however, in no event shall such resignation become
effective until the payments due under Paragraphs 2(A) and 2(B) hereof have been
received by Employee in accordance with the wire transfer instructions specified
on Exhibit A-1.
2. Severance Consideration. In full consideration of executing the
Agreement, Vitalink will, upon the expiration of the revocation period set forth
in paragraph 4(e), pay or provide to Employee the following benefits:
A) The sum of $2,340,000 less lawful withholding paid in accord with
Vitalink's standard payroll practices and less any remaining health and
dental insurance premiums for this calendar year (as set forth in
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇) as set forth on Exhibit A attached hereto.
B) Earned but unused vacation pay through the Resignation Date less lawful
withholding paid in accord with Vitalink's standard payroll practices,
as set forth on Exhibit A attached hereto.
C) All reasonable attorney's fees and expenses paid or owed by Employee
which are or were incurred in relation to Vitalink actions regarding
Employee and/or preparation of this Agreement and which are or were
incurred prior to August 2, 1997. Such legal fees and expenses shall not
exceed $75,000, and shall be paid by Vitalink within fifteen (15) days
after receiving an invoice from ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP with respect to
such fees and expenses. Such invoice will not contain detailed time
entries, but will provide a recapitulation of the respective attorneys'
hours billed and hourly rates.
D) Health and dental insurance coverage for the Employee, consistent with
present Vitalink coverage, until July 31, 2002. Employee shall continue
to be responsible for the co-payments, contributions, etc. for which
similarly situated Vitalink employees are currently responsible and/or
will become responsible under the terms of such insurance programs. Such
responsibility shall continue so long as Vitalink is responsible for
providing such insurance. In order to retain his rights to such
insurance, Employee shall pay to Vitalink at the beginning of each
calendar year a lump sum payment equal to the total amount of Employee's
contribution obligations for such insurance for that calendar year.
Employee shall make such payment by delivering a check made payable to
Vitalink Pharmacy Services, Inc. to the Vitalink Senior Vice President
of Human Resources. Vitalink will provide annual written notice to
Employee of the amount of such payment and Employee shall remit payment
within fifteen (15) days of after the date receipt of such written
notice. In the event Employee fails to make the required payment within
the required time, Vitalink may, at its sole discretion, terminate
Employee's insurance. Vitalink shall, upon such termination, have no
continuing obligation to Employee under this Paragraph, except as
otherwise required by law.
E) Assignment of Employee's split-dollar life insurance policy to Employee
on or before the Separation Resignation Date. A copy of such policy and
the assignment documentation is attached hereto as Exhibit B.
F) Use of the office space and office furnishings and equipment currently
used by Employee and his assistant. Such space, furnishings and
equipment shall be provided to Employee until August 31, 1997.
G) Employee shall have until July 31, 1999 to exercise the stock options
set forth on Exhibit C, attached hereto. Such options are fully vested
and unrestricted.
3. Complete Release. The Employee, on behalf of himself and his heirs,
executors, administrators, assigns, and successors, hereby convenants not to ▇▇▇
and fully releases, dismisses and forever discharges Vitalink and its affiliated
entities, as well as its and their trustees, directors, officers, agents,
employees, stockholders, attorneys, insurers, representatives, predecessors,
assigns, successors, and transferees (hereinafter collectively referred to as
"Vitalink"), from any and all actions, causes of action, lawsuits, claims,
counterclaims, demands, debts, obligations, damages, judgments, orders, and
liabilities of whatever nature, whether known or unknown, which he now owns or
holds or has at any time owned or held or may in the future own or hold, arising
out of or in any way connected, directly or indirectly, with his employment
relationship, employment contract and/or directorship with Vitalink or the
termination thereof, or any other occurrences, acts or omissions or any loss,
damage or injury whatsoever, known or unknown, occurring on or before the
Resignation Date, including, without limiting the generality of the foregoing,
any claim for breach of contract, wrongful discharge, torts of any kind, any
common law claims now or hereafter recognized, and any claims arising under
federal, state or local laws or ordinances, including but not limited to, Title
VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of
1967, the Older Workers Benefits Protection Act, the Americans With Disabilities
Act, the Civil Rights Act of 1991, the Family and Medical Leave Act, the
Rehabilitation Act of 1973, the Employee Retirement Income Security Act of 1974,
the Consolidated Omnibus Budget Reconciliation Act, the Worker Adjustment and
Retraining Notification Act, and the Occupational Safety and Health Act, except
with respect to any claims related to criminal activity by Vitalink. This
release does not in any way impair Employee's rights to be indemnified to the
fullest extent allowed by law in accordance with Paragraph 14 hereof.
Vitalink, and its affiliated entities (hereinafter collectively referred to
as "Vitalink") hereby convenants not to ▇▇▇ and fully releases, dismisses and
forever discharges Employee and his heirs, executors, administrators, assigns,
and successors, from any and all actions, causes of action, lawsuits, claims,
counterclaims, demands, debts, obligations, damages, judgments, orders, and
liabilities of whatever nature, whether known or unknown, which they now own or
hold or have at any time owned or held or may in the future own or hold, arising
out of or in any way connected, directly or indirectly, with Employee's
employment relationship, employment contract and/or directorship with Vitalink
or the termination thereof, or any other occurrences, acts or omissions or any
loss, damage or injury whatsoever, known or unknown, occurring on or before the
Resignation Date, including, without limiting the generality of the
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foregoing, any claim for breach of contract, torts of any kind, any common law
claims now or hereafter recognized, and any claims arising under federal, state
or local laws or ordinances, except with respect to any claims related to
criminal activity by Employee.
Notwithstanding the above, the mutual releases contained in Paragraph 3
hereof specifically exclude any and all obligations of the parties under this
Agreement.
4. Compliance with Law. The Employee hereby acknowledges and agrees that
this Agreement and the termination of his employment and all actions taken in
connection therewith are in compliance with all applicable laws, including, but
not limited to, the Age Discrimination in Employment Act and the Older Workers'
Benefits Protection Act and that the release set forth in this Agreement shall
apply, without limitation, to any claims brought under any such laws. The
Employee further expressly acknowledges and agrees that:
a. The release given by the Employee in this Agreement is given solely in
exchange for the consideration set forth in paragraph 2 of this Agreement and
such consideration is in addition to anything of value to which he was already
entitled to receive before entering into this Agreement;
b. By entering into this Agreement, the Employee does not waive rights or
claims that may arise from actions by Vitalink after the date this Agreement is
executed. Likewise, Vitalink does not waive rights or claims that may arise
from actions by Employee after the date this Agreement is executed;
c. The Employee acknowledges that he has consulted with an attorney of his
choice before signing this Agreement;
d. The Employee has had at least twenty-one (21) days within which to
consider the Agreement;
e. The Employee has seven (7) days following the execution of this
Agreement in which to revoke the Agreement. Any revocation of the Agreement
must be in writing and delivered to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III at Vitalink Pharmacy
Services, Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ during the
revocation period. This Agreement will become effective and enforceable seven
(7) days following execution by the Employer unless revoked as provided for
herein during the seven-day period.
5. Reason for Separation. The Employee's employment records will show
that he resigned from Vitalink.
6. Non-Admission. The Employee agrees and acknowledges that neither this
Agreement nor Vitalink's offer to enter into this Agreement should be construed
as an admission by Vitalink that it has acted wrongfully towards the Employee or
anyone else, and that Vitalink expressly denies any liability to or having
engaged in any wrongful acts or omissions against the Employee.
Vitalink agrees and acknowledges that neither this Agreement nor Employee's
offer to enter into this Agreement should be construed as an admission by
Employee that he has
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acted wrongfully towards Vitalink or anyone else, and that Employee expressly
denies any liability to or having engaged in any wrongful acts or omissions
against Vitalink.
7. Return of Property. The Employee agrees to return any and all Vitalink
property to the Vitalink General Counsel on or before August 5, 1997 with the
exception of the Vitalink office furnishings now in Employee's possession which
will be returned to the Vitalink General Counsel on or before August 31, 1997.
Employee shall not transfer, sell or otherwise dispose of Vitalink property in
any manner prior to the Separation Resignation Date.
8. Confidential Information. The Employee acknowledges that by reason of
his positions and his employment agreement with Vitalink, and pursuant to his
obligations and fiduciary duties related thereto with Vitalink, he has been
given access to lists of accounts, customers, prices, plans and similar
confidential materials or information respecting Vitalink's business affairs.
The Employee represents that he has held all such materials and information
confidential and will continue to do so, and will not use such information for
any business purpose without the prior written consent of Vitalink, except as
required by law and except if such information is disclosed to the public by a
third party who is unrelated to Employee, not in violation of a confidentiality
agreement and not in violation of a fiduciary or other duty.
9. Non-Solicitation. Employee agrees not to solicit any current or future
employees of Vitalink during their employment with Vitalink for employment with
Employee or any company or entity otherwise affiliated with Employee.
10. Statements Regarding Vitalink. The Employee agrees not to make any
written or verbal derogatory statements in any form concerning Vitalink, his
employment with Vitalink, his role as a member of the Board of Directors of
Vitalink, or the termination of his employment with Vitalink to any person or
entity, except as required by law.
11. Statements Regarding Employee. Vitalink agrees, and agrees to cause
its employees, directors, officers, agents and affiliates, not to make any
written or verbal derogatory statements in any form concerning the Employee, his
employment with Vitalink, his role as a member of the Board of Directors of
Vitalink, or the termination of his employment with Vitalink to any person or
entity, except as required by law.
12. Confidentiality. The Employee agrees to keep the terms,
conditionsterms, conditions, negotiations leading to and fact of this Agreement
completely confidential and except that he may disclose information which is
contained in a mutually agreed upon press release which is attached hereto as
Exhibit C. Employee agrees not to disclose any information concerning this
Agreement, except as required by law, to any other person, except the Employee's
immediate family, personal financial advisor, tax advisor and attorney, provided
they agree to keep this information confidential. Without limiting the
generality of the foregoing, the Employee will not respond to or in any way
participate in or contribute to any public discussion, notice or publicity
concerning or in any way related to the execution of this Agreement or the
events (including any negotiations) which led to its execution. In addition,
without limiting the generality of the foregoing, the Employee specifically
agrees not to disclose information regarding this Agreement or the fact of this
Agreement to any current or former employee of Vitalink. The Employee agrees
that the disclosure by him of the fact of this Agreement or any of its terms and
conditions in violation of the foregoing will constitute a material breach of
this Agreement. The provisions of this Paragraph do not apply to information
regarding this Agreement which Vitalink has disclosed
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to the public and/or which a third party, unrelated to Employee, not in
violation of a confidentiality agreement and not in violation of a fiduciary or
other duty, has disclosed to the public.
Vitalink agrees to keep the terms, conditions and facts of this Agreement
completely confidential, except that information which is contained in a
mutually agreed upon press release which is attached hereto as Exhibit C.
Vitalink agrees not to disclose any information concerning this Agreement other
than that set forth in Exhibit C, or as required by law, to any other persons,
except the Board of Directors, CEO and General Counsel of Vitalink, provided
they agree to keep this information confidential. Without limiting the
generality of the foregoing, Vitalink and its directors, officers, agents,
employees and affiliates will not respond to or in any way participate in or
contribute to any public discussion, notice or publicity concerning or in any
way related to the execution of this Agreement or the events (including any
negotiations) which led to its execution. In addition, without limiting the
generality of the foregoing, Vitalink specifically agrees not to disclose
information regarding this Agreement to any current or former employee of
Vitalink except as provided above. Vitalink agrees that the disclosure by it of
the fact of this Agreement or any of its terms and conditions in violation of
the foregoing will constitute a material breach of this Agreement.
13. Participation in Other Actions. The Employee agrees not to
participate in any action of any kind by any other employee or former employee
of Vitalink and will not testify or otherwise provide evidence in any
investigation, hearing, or trial of any such action, except under valid
subpoena. The Employee also agrees not to solicit, counsel, advise, suggest,
assist, or encourage any claims, demands, rights, or causes of action of any
kind of other persons against Vitalink. Employee further agrees to reasonably
assist Vitalink in any lawsuit or claim arising from circumstances that took
place during Employee's employment, to the extent reasonably necessary to
protect Vitalink's interests.
14. Indemnification. To the maximum extent permitted by law, Vitalink
hereby indemnifies and agrees to hold harmless Employee from any costs or
expenses incurred by him on account of the fact Employee becomes a party, or is
threatened to be made a party, to any threatened, pending or contemplated
action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that Employee is or was a director,
officer, employee or agent of Vitalink or any parent or subsidiary of Vitalink.
Such costs and expenses shall include, without limitation, expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding.
To the maximum extent permitted by and subject to any requirements of law,
expenses incurred by Employee in defending a civil or criminal action, suit or
proceeding shall be paid by Vitalink as bills for such services are presented by
Employee to Vitalink. In any such matter, Employee shall be entitled to select
his own counsel.
The obligations herein shall bind any successor corporation to Vitalink
(whether direct or indirect, by merger, consolidation or otherwise) so that
Employee shall stand in the same position under this Agreement with respect to
any successor corporation as Employee would have with respect to Vitalink if its
separate existence had continued. Vitalink's obligations under this Paragraph
shall survive termination of this Agreement and shall survive indefinitely with
respect to any costs or liability incurred by Employee on account of any actual
or alleged action or inaction by the Employee while employed by Vitalink.
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15. Re-employment. The Employee agrees not to apply for, seek, or
otherwise attempt to obtain employment with Vitalink or any of its subsidiaries
nor seek a position as a director on Boards of the same. Employee further
agrees that neither Vitalink or any of its affiliates or successors shall be
under any obligation to re-employ the Employee or appoint him to a director
position.
16. Merger of Understanding. This instrument constitutes and contains the
entire agreement and understanding concerning the Employee's employment, the
termination thereof and the other matters addressed herein between the parties,
and supersedes and replaces all prior negotiations and all employment agreements
proposed or otherwise, whether written or oral, concerning the subject matter
hereof. This Agreement shall not be modified, altered, changed or amended in
any respect unless in writing and signed by both parties.
17. Vitalink shall continue paying to ▇▇▇▇▇ ▇▇▇▇▇▇▇ her salary and other
benefits, including all health and dental coverage, through January 31, 1998.
While ▇▇. ▇▇▇▇▇▇▇ will be an independent contractor of Vitalink, her sole duties
will be continue as Employee's assistant through such date. If, however, ▇▇.
▇▇▇▇▇▇▇ accepts employment with another employer (other than Employee) at any
time prior to January 31, 1998, Vitalink's obligations under this Paragraph 17
shall cease on the date ▇▇. ▇▇▇▇▇▇▇ commences such new employment.
18. Savings Clause. If any provision of this Agreement or the
application thereof is held invalid, the invalidity will not affect other
provisions or applications of the Agreement which can be given effect without
the invalid provisions or applications and to this end the provisions of this
Agreement are declared to be severable.
19. Governing Law. The rights and obligations of the parties hereunder
will be construed and enforced in accordance with, and governed by, the laws of
the State of Delaware without regard to principles of conflict of laws.
20. Execution in Counterparts. This Agreement may be executed in
counterparts, and each counterpart, when executed, will have the efficacy of a
signed original. Photographic copies of such signed counterparts may be used in
lieu of the originals for any purpose.
21. Costs and Expenses. In the event of litigation in connection with
or concerning the subject matter of this Agreement, the prevailing party will be
entitled to recover all costs and expenses incurred by such party in connection
therewith, including reasonable attorneys' fees.
22. Failure to Enforce. The failure of either party to enforce strictly
any provision of this Agreement shall not be construed as a waiver thereof or as
excusing the other party from future performance.
23. Notice. Any notices required or permitted by this Agreement shall
be sent by certified or registered mail, return receipt requested or by a
national overnight delivery service, addressed as follows:
If to VITALINK: Vitalink Pharmacy Services, Inc.
ATTN: Senior Vice President of Human Resources
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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With a copy to: Vitalink Pharmacy Services, Inc.
ATTN: General Counsel
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
If to EMPLOYEE: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇., ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
With a copy to: ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
NationsBank Plaza
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇. ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
and shall be deemed received when actually delivered to such address.
THE EMPLOYEE ACKNOWLEDGES AND REPRESENTS THAT HE HAS READ AND ACCEPTS AND
AGREES TO THE PROVISIONS OF THIS AGREEMENT AND HAS HAD SUFFICIENT TIME AND
OPPORTUNITY TO CONSULT WITH INDIVIDUALS OF THE EMPLOYEE'S OWN CHOICE, AS LIMITED
BY PARAGRAPH 12 OF THIS AGREEMENT. THE EMPLOYEE EXECUTES THIS AGREEMENT
VOLUNTARILY WITH FULL UNDERSTANDING OF ITS CONSEQUENCES.
EXECUTED THIS 24TH DAY OF JULY, 1997.
EMPLOYEE
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
EXECUTED THIS 24TH DAY OF JULY, 1997.
VITALINK PHARMACY SERVICES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
Senior Vice President,
General Counsel
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ACKNOWLEDGMENT
--------------
I, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, hereby acknowledge that I was given twenty-one (21)
days to consider the foregoing Agreement and voluntarily chose to sign the
Agreement prior to the expiration of the 21-day period.
EXECUTED as of this 24th day of July 1997.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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EXHIBIT A-1
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First Union National Bank of Georgia, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP Trust A, Account
Number 002052700184683, ABA #▇▇▇▇▇▇▇▇▇, Contact: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Private Banking
(▇▇▇-▇▇▇-▇▇▇▇).
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