Exhibit 10.32
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Settlement Agreement and Mutual Release (this "Agreement") is entered
into this 3rd day of September, 2002, by and between VistaCare, Inc., a Delaware
corporation (the "Company"), and Xxxxx X. Xxxxx, an individual residing at 00000
Xxxxx 00xx Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000 ("Xxxxx").
Background
A. The Company loaned Xxxxx $66,000 evidenced by a promissory note dated
February 29, 1996 (the "Note"). As of June 30, 1999, a total of $72,978.41 in
principal and accrued but unpaid interest was due under the Note.
B. The Company granted Xxxxx options (the "Options") to purchase shares of
the Company's Class A Common Stock, $.01 par value per share, at $.67 per share,
which options were exercisable for an aggregate of 120,000 shares as of June 30,
1999. Xxxxx attempted to exercise the Options in September 1999 and in
connection therewith tendered a check to the Company in the amount of $80,400
(the "Check").
X. Xxxxx'x employment by the Company terminated effective June 30, 1999.
D. The parties desire that (i) the Company purchase the Options and cancel
the Note and (ii) the attempted exercise of the Options be canceled with the
Check being returned by the Company to Xxxxx.
NOW, THEREFORE, in consideration of the mutual covenants set forth below
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties agree as follows:
1. Payment; Cancellation of Note and Options. Upon receipt of a copy of
this Agreement executed by Xxxxx and the effectiveness of this Agreement in
accordance with Section 8, the Company shall (i) pay Xxxxx by a check an amount
equal to $32,860.92 and (ii) deliver to Xxxxx (A) the original Note marked
"Cancelled" and (B) a copy of this Agreement executed by a duly authorized
representative of the Company. By executing this Agreement, Xxxxx acknowledges
and agrees that (i) the Options are cancelled, null and void and (ii) the
attempted exercise of the Options is rescinded.
2. Mutual Release of Claims.
(a) Xxxxx'x Release of Company. Xxxxx hereby unconditionally and
irrevocably waives, relinquishes and forever releases and discharges the Company
and its officers, directors, shareholders, employees, agents, subsidiaries,
affiliates, predecessors, successors and assigns (collectively, the "Company
Indemnitees") from any and all claims, duties, causes of actions, demands,
obligations, liabilities, rights, damages (including business,
punitive or exemplary damages) of any kind or nature whether existing or
contingent, now known or unknown, asserted or unasserted, whether in law, equity
and administrative proceeding that Xxxxx now has or ever had against the Company
Indemnitees since the beginning of the world through the date hereof including,
but not limited to, any and all matters related in any way to Xxxxx'x employment
with or separation from the Company, as well as claims under the Employee
Retirement Income Security Act of 1974, Title VII of the Civil Rights Act of
1964, the Age Discrimination in Employment Act, the Americans with Disabilities
Act, any claim based on state anti-discrimination laws, any claim for wrongful
discharge, and any alleged violation of public policy, contract or tort law, or
any other federal, state, or local law; provided, however, that such release
does not apply to the terms and conditions of this Agreement, which remain valid
and enforceable.
(b) Company's Release of Xxxxx. The Company hereby unconditionally
and irrevocably waives, relinquishes and forever releases and discharges Xxxxx
from any and all claims, duties, causes of actions, demands, obligations,
liabilities, rights, damages (including business, punitive or exemplary damages)
of any kind or nature whether existing or contingent, now known or unknown,
asserted or unasserted, whether in law, equity and administrative proceeding
that the Company now has or ever had against Xxxxx since the beginning of the
world through the date hereof; provided, however, that such release does not
apply to the terms and conditions of this Agreement, which remain valid and
enforceable.
3. No Admission of Liability. Without in any way limiting the terms and
conditions of this Agreement, it is specifically understood and agreed that
nothing contained in this Agreement can be construed in any manner whatsoever as
an admission on the part of any party hereto or of any liability or
responsibility whatsoever.
4. No Presumption. Each of the parties declares that it or he has
participated in the drafting of this Agreement after consulting with counsel of
its or his own choosing, and that the terms of this Agreement have been fully
understood and are voluntarily accepted for the purpose of making a full and
final compromise and settlement of all claims released hereby. Therefore, the
language of this Agreement shall not be presumptively construed in favor or
against any of the parties hereto.
5. Entire Agreement; Modification; Severability. This Agreement represents
the entire understanding between the parties and, without limitation, the
parties expressly agree that any previous communications, correspondence,
memorializations of agreement and/or previous agreements are excluded from and
expressly superseded by this Agreement. This Agreement can only be modified by a
writing signed by all parties. If any provision of this Agreement is declared
null and void or unenforceable, in whole or in part, by a court or tribunal
having jurisdiction, then such provision or such part of a provision shall be
considered separate and apart from the remainder of this Agreement, which shall
remain in full force and effect.
6. Governing Law. This Agreement is entered into in the state of Arizona
and shall be interpreted and construed according to its laws. This Agreement may
be enforced in any court of competent jurisdiction in Arizona.
7. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original and all of which taken together
shall constitute one and the same instrument, and any party hereto may execute
this Agreement by signing one or more counterparts. A facsimile signature shall
have the same force and effect as an original signature.
8. Advice of Counsel; Effectiveness. Xxxxx acknowledges and agrees that he
has been advised to consult an attorney before signing this Agreement, that he
has thoroughly read and considered all aspects of this Agreement, that he
understands all its provisions, that he has had 21 days to review it, and that
he is voluntarily signing it. Xxxxx shall have 7 days after signing this
Agreement to revoke his signature by notifying the Company in writing. This
Agreement shall not become effective until after the expiration of the 7-day
revocation period.
IN WITNESS WHEREOF, the parties hereto have caused the execution of this
Settlement Agreement and Mutual Release, effective as of the date indicated
above.
VISTACARE, INC.
By: /s/ Xxxxxxx Xxxxx
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Senior Vice President
/s/ X. X. Xxxxx
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Xxxxx X. Xxxxx
