Exhibit 10.1
FORM SEPARATION AGREEMENT
CONFIDENTIAL
March 28, 2005
Ms. Xxxx Xxxxx
[Home Address]
Re: Separation from Employment
Dear Xxxx:
This letter ("Agreement") sets forth the agreement reached
concerning the termination of your employment with Curative Health Services,
Inc., including its current and former parents, subsidiaries and affiliated
entities, and their respective current and former successors, assigns,
representatives, agents, attorneys, shareholders, officers, directors and
employees, both individually and in their official capacities (collectively
"Curative").
1. Your employment with Curative will terminate on March 28, 2005.
Curative will continue to pay your salary, less applicable withholdings and
deductions, and provide you with the benefits that you are currently receiving
through March 28, 2005. Curative will also provide you with a lump-sum payment,
less applicable withholdings and deductions, representing the value of your
accrued unused vacation, if any, through March 28, 2005. You acknowledge and
agree that your employment with Curative ends for all purposes on March 28,
2005.
2. As set forth in your Employment Agreement effective as of
September 2, 2003, as amended or modified ("Employment Agreement"), in
consideration for signing this Agreement and in exchange for the promises,
covenants and waivers set forth herein, Curative will, provided you have not
revoked this Agreement as set forth below, provide you with the following:
(a) Within thirty (30) days of March 28, 2005, a lump sum
severance payment equal to the sum of six (6) month's of your
annual base salary, less applicable withholdings and
deductions,
(b) Welfare benefits (including life and health insurance
benefits) of substantially similar design and cost to you as
the welfare benefits available to you prior to your date of
termination for a period of six (6) months commencing on March
28, 2005, or until you obtain full-time employment providing
welfare benefits, whichever occurs first, and
Ms. Xxxx Xxxxx
March 28, 2005
Page 2
(c) To the extent not otherwise required under Curative's Stock
Option Plan, any unvested stock options awards which would
otherwise vest and become exercisable during the twelve (12)
month period commencing on March 28, 2005, shall vest and
become exercisable on March 28, 2005.
3. In consideration of the benefits described above and for other
good and valuable consideration, you hereby release and forever discharge, and
by this instrument release and forever discharge Curative from all debts,
obligations, promises, covenants, agreements, contracts, endorsements, bonds,
controversies, suits, actions, causes of action, judgments, damages, expenses,
claims or demands, in law or in equity, which you ever had, now have, or which
may arise in the future, regarding any matter arising on or before the date of
your execution of this Agreement, including but not limited to all claims
(whether known or unknown) regarding your employment at or termination of
employment from Curative, any contract (express or implied), any claim for
equitable relief or recovery of punitive, compensatory, or other damages or
monies, attorneys' fees, any tort, and all claims for alleged discrimination
based upon age, race, color, sex, sexual orientation, marital status, religion,
national origin, handicap, disability, or retaliation, including any claim,
asserted or unasserted, which could arise under Title VII of the Civil Rights
Act of 1964; the Equal Pay Act of 1963; the Age Discrimination in Employment Act
of 1967 ("ADEA"); the Older Workers Benefit Protection Act of 1990; the
Americans With Disabilities Act of 1990; the Civil Rights Act of 1866, 42 U.S.C.
ss. 1981; the Xxxxxxxx-Xxxxx Act; the Employee Retirement Income Security Act of
1974; the Family and Medical Leave Act of 1993; the Civil Rights Act of 1991;
the New York State Human Rights Law, the New York City Human Rights Law; Worker
Adjustment and Retraining Notification Act of 1988; the California Family Rights
Act; the California Fair Employment and Housing Act; the California Minimum Wage
Law; the equal Pay Law for California; and any other federal, state or local
laws, rules or regulations, whether equal employment opportunity laws,
nondiscrimination statutes and regulations, or otherwise, or any right under any
Curative pension, welfare, or stock plans. This Agreement may not be cited as,
and does not constitute any admission by Curative of, any violation of any such
law or legal obligation with respect to any aspect of your employment or
termination therefrom, or of the applicability of any such law or legal
obligation to the rights and obligations of the parties hereunder.
4. You, for yourself and your heirs, legal representatives,
successors-in-interest and assigns, do hereby expressly waive and relinquish all
rights and benefits afforded you by Section 1542 of the Civil Code of California
and do so understanding and acknowledging the significance and consequence of
such specific waiver of Section 1542. Section 1542 of the Civil Code of
California states as follows:
A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have
materially affected his settlement with the debtor.
Ms. Xxxx Xxxxx
March 28, 2005
Page 3
Thus, notwithstanding the provisions of Section 1542, and for the purpose
of implementing a full and complete release and discharge of Curative, you
expressly acknowledge that this Agreement is also intended to include in its
effect, without limitation, all claims which you do not know or suspect to exist
at the time of execution hereof, and that this Agreement contemplates the
extinguishment of any such claim or claims.
5. You represent and agree that you have not filed any lawsuits
against Curative, or filed or caused to be filed any charges or complaints
against Curative with any municipal, state or federal agency charged with the
enforcement of any law. Pursuant to and as a part of your release and discharge
of Curative, as set forth herein, you agree, not inconsistent with EEOC
Enforcement Guidance On Non-Waivable Employee Rights Under EEOC-Enforced
Statutes dated April 11, 1997, and to the fullest extent permitted by law, not
to sue or file a charge, complaint, grievance or demand for arbitration against
Curative in any forum or assist or otherwise participate willingly or
voluntarily in any claim, arbitration, suit, action, investigation or other
proceeding of any kind which relates to any matter that involves Curative, and
that occurred up to and including the date of your execution of this Agreement,
unless required to do so by court order, subpoena or other directive by a court,
administrative agency, arbitration panel or legislative body, or unless required
to enforce this Agreement. To the extent any such action may be brought by a
third party, you expressly waive any claim to any form of monetary or other
damages, or any other form of recovery or relief in connection with any such
action.
6. You represent and affirm that you have not reported any purported
improper, unethical or illegal conduct or activities to any supervisor, manager,
department head, Human Resources representative or other representative of
Curative, and have no knowledge of any such improper, unethical or illegal
conduct or activities.
7. The provisions set forth in Section 5 of the Employment Agreement
are incorporated herein and remain in full force and effect. Specifically, you
agree to adhere to the requirements of Section 5.1 Trade Secrets and
Confidential Information, Section 5.2 Transfer of Inventions, Section 5.4
Covenant Not to Compete, Section 5.5 Disclosure to Prospective Employers,
Section 5.6 Non-Solicitation and Noninterference and Section 5.7 Indirect
Activity Precluded. (A copy of the Employment Agreement is annexed hereto.) You
agree that in the event of a breach by you of any of the covenants set forth
above, Curative has no adequate remedy at law and shall be entitled to
injunctive and equitable relief, in addition to all other remedies available.
8. You represent, warrant and acknowledge that Curative owes you no
wages, commissions, bonuses, sick pay, personal leave pay, severance pay,
vacation pay or other compensation or benefits or payments or form of
remuneration of any kind or nature, other than that specifically provided for in
this Agreement.
9. You will not disparage or criticize Curative, or issue any
communication, written or otherwise, that reflects adversely on or encourages
any adverse action against Curative, except if testifying truthfully under oath
pursuant to any lawful court order or subpoena or otherwise responding to or
providing disclosures required by law.
Ms. Xxxx Xxxxx
March 28, 2005
Page 4
10. You agree not to disclose the terms, contents or execution of
this Agreement, the claims that have been or could have been raised against
Curative, or the facts and circumstances underlying this Agreement, except in
the following circumstances:
a. You may disclose the terms of this Agreement to your immediate
family, so long as such family member agrees to be bound by
the confidential nature of this Agreement;
b. You may disclose the terms of this Agreement to (i) your tax
advisors so long as such tax advisors agree in writing to be
bound by the confidential nature of this Agreement (ii) taxing
authorities if requested by such authorities and so long as
they are advised in writing of the confidential nature of this
Agreement or (iii) your legal counsel; and
c. Pursuant to the order of a court or governmental agency of
competent jurisdiction, or for purposes of securing
enforcement of the terms and conditions of this Agreement
should that ever be necessary.
11. Nothing in this Agreement shall prohibit or restrict you from
making any disclosure of information required by law or testifying,
participating or otherwise assisting in a proceeding relating to an alleged
violation of the Xxxxxxxx-Xxxxx Act.
12. Upon service on you, or anyone acting on your behalf, of any
subpoena, order, directive or other legal process requiring you to engage in
conduct encompassed within paragraphs 10, 11 or 12 of this Agreement, you or
your attorney shall immediately notify Curative of such service and of the
content of any testimony or information to be provided pursuant to such
subpoena, order, directive or other legal process and within two (2) business
days send to the undersigned representative of Curative via overnight delivery
(at Curative's expense) a copy of said documents served upon you.
13. You agree that you will assist and cooperate with Curative in
connection with the defense or prosecution of any claim or threatened claim that
may be made against or by Curative, or in connection with any ongoing or future
investigation or dispute or claim of any kind involving Curative, including any
proceeding before any arbitral, administrative, judicial, legislative, or other
body or agency, including testifying in any proceeding to the extent such
claims, investigations or proceedings relate to services performed or required
to be performed by you, pertinent knowledge possessed by you, or any act or
omission by you. You further agree to perform all acts and execute and deliver
any documents that may be reasonably necessary to carry out the provisions of
this paragraph.
14. This Agreement constitutes the entire agreement between Curative
and you, and supersedes and cancels all prior and contemporaneous written and
oral agreements between Curative and you, including the Employment Agreement
(with the sole exception of Section 5, which is incorporated in paragraph 8 of
this Agreement). You affirm that, in entering into this Agreement, you are not
relying upon any oral or written promise or statement made by anyone at any time
on behalf of Curative.
Ms. Xxxx Xxxxx
March 28, 2005
Page 5
15. This Agreement is binding upon you and your successors, assigns,
heirs, executors, administrators and legal representatives.
16. If any of the provisions, terms or clauses of this Agreement are
declared illegal, unenforceable or ineffective in a legal forum, those
provisions, terms and clauses shall be deemed severable, such that all other
provisions, terms and clauses of this Agreement shall remain valid and binding
upon both parties.
17. Without detracting in any respect from any other provision of
this Agreement:
a. You, in consideration of the benefits provided to you as
described in paragraphs 2 and 3 of this Agreement, agree and
acknowledge that this Agreement constitutes a knowing and
voluntary waiver of all rights or claims you have or may have
against Curative as set forth herein, including, but not
limited to, all claims of age discrimination in employment,
all claims of retaliation and all claims of breach of
contract; and you have no physical or mental impairment of any
kind that has interfered with your ability to read and
understand the meaning of this Agreement or its terms, and
that you are not acting under the influence of any medication
or mind-altering chemical of any type in entering into this
Agreement.
b. You understand that, by entering into this Agreement, you do
not waive rights or claims that may arise after the date of
your execution of this Agreement, including without limitation
any rights or claims that you may have to secure enforcement
of the terms and conditions of this Agreement.
c. You agree and acknowledge that the consideration provided to
you under this Agreement is in addition to anything of value
to which you are already entitled.
d. Curative hereby advises you to consult with an attorney prior
to executing this Agreement.
e. You acknowledge that you have been given a reasonable time in
which to review and consider this Agreement, and to consult
with an attorney regarding the terms and effect of this
Agreement, and that you have freely, knowingly and voluntarily
decided to accept these benefits, and that the Agreement has
binding legal effect.
18. You may revoke this Agreement within seven (7) days from the
date you sign this Agreement, in which case this Agreement shall be null and
void and of no force or effect on either Curative or you. Any revocation must be
in writing and received by Curative by 5:00 p.m. on or before the seventh (7th)
day after this you execute Agreement. Such revocation must be sent to the
undersigned c/o Critical Care Systems, Inc., 00 Xxxx Xxxxx Xxxx, Xxxxx 000,
Xxxxxx Xxx Xxxxxxxxx 00000, Attention: Xxxx XxXxxxxxx, Chief Executive Officer,
with a copy to Curative Health Services, Inc., 000 Xxxxx Xxxxxxx, Xxxxxxxxx, Xxx
Xxxx 00000, Attention: Xxxxx Xxxxx, General Counsel.
Ms. Xxxx Xxxxx
March 28, 2005
Page 6
19. This Agreement may not be changed or altered, except by a
writing signed by Curative and you. This Agreement is entered into in the State
of New York and the laws of the State of New York will apply to any dispute
concerning it.
YOU EXPRESSLY ACKNOWLEDGE, REPRESENT, AND WARRANT THAT YOU HAVE READ
THIS AGREEMENT CAREFULLY; THAT YOU FULLY UNDERSTAND THE TERMS, CONDITIONS, AND
SIGNIFICANCE OF THIS AGREEMENT; THAT CURATIVE HAS ADVISED YOU TO CONSULT WITH AN
ATTORNEY CONCERNING THIS AGREEMENT; THAT YOU HAVE HAD A FULL OPPORTUNITY TO
REVIEW THIS AGREEMENT WITH AN ATTORNEY; THAT YOU UNDERSTAND THAT THIS AGREEMENT
HAS BINDING LEGAL EFFECT; AND THAT YOU HAVE EXECUTED THIS AGREEMENT FREELY,
KNOWINGLY AND VOLUNTARILY.
PLEASE READ CAREFULLY. THIS AGREEMENT HAS IMPORTANT LEGAL
CONSEQUENCES.
You received this Agreement on April 15, 2005.
Date: April 18, 2005 /s/ Xxxx Xxxxx
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XXXX XXXXX
On this 18th day of April 2005, before me personally came Xxxx
Xxxxx, to me known to be the individual described in the foregoing instrument,
who executed the foregoing instrument in my presence, and who duly acknowledged
to me that she executed the same.
/s/ Xxxxxx Xxxxxx
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Notary Public
CURATIVE HEALTH SERVICES, INC.
Date: By: Xxxx XxXxxxxxx
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Name: Xxxx XxXxxxxxx
Title: President and CEO
