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EXHIBIT 10.6
SEPARATION AGREEMENT AND GENERAL RELEASE
This Separation Agreement and General Release is entered into as of the
31st day of December 1997 by Xxxxxxx X. Xxxxx ("Xxxxx") and AccuMed
International, Inc., its subsidiaries. parent and affiliated companies,
and respective past and present officers, directors, attorneys,
employees, and agents of these companies (collectively referred to as
"AccuMed" or "Company"):
WHEREAS, Xxxxx and AccuMed have engaged in discussions resulting
in the separation of Xxxxx'x employment relationship with AccuMed
effective December 31, 1997;
WHEREAS, Xxxxx and AccuMed have had a full opportunity to review
and consider this document;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein, it is agreed by and between the parties as
follows:
1. It is understood and agreed that this Separation Agreement and
General Release does not constitute an admission by AccuMed or Xxxxx
that any action taken with respect to the other was unlawful or
wrongful, or in violation of any federal, state, or local law,
constitution, policy, rule, or regulation, or of any express or implied
contract. Instead, this Separation Agreement and General Release Is
entered into solely for the purpose of compromise and to fully resolve
all matters which may have arisen, or may arise, out of Xxxxx'x
employment with, and termination of employment from, AccuMed,
2. In consideration for the promises by Xxxxx berein and the
execution by Xxxxx of this Separation Agreement and General Release, and
in settlement of any and all claims Xxxxx may have against AccuMed,
AccuMed agrees to'pay Xxxxx the following:
a) Nine (9) months salary continuation on the same
terms and pay practices as currently existing and
in the gross amount of $131,250, less applicable
federal, state, and local taxes;
b) Four (4) weeks vacation pay in the gross amount of
$I 3,462, less applicable federal, state, and local
taxes;
c) Continuation of existing employee benefits for nine
(9) months through the end of September, 1998 upon
which Xxxxx shall be eligible for continuation
coverage in accordance with the Consolidated
Omnibus Budget Reconciliation Act ("COBRA"), Xxxxx
acknowledges that he has been advised of his rights
under COBRA;
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d) Continuation of all existing car allowance payments
not to exceed a total of $5,000 for Xxxxx'x auto;
e) Outplacement assistance not to exceed a total of
$15,000 following Xxxxx'x December 31, 1997,
effective termination date. Any outplacement
assistance must be provided by Xxxxxxxx & Xxxxx, or
another outplacement firm mutually agreed upon by
Xxxxx and AccuMed, with the fees to be paid by
AccuMed directly to the firm within five (5)
business days after its receipt of an invoice;
f) Relocation benefits in accordance with existing
Company policy not to exceed a total of $25,000, to
be paid by the Company upon submission to the
Company by Xxxxx of proper receipts, such $25,000
amount to be upwardly adjusted for any tax effects
incurred by Xxxxx, pursuant to the Company's
policy:
g) All proper business "expenses incurred, minus all
advances received, Xxxxx acknowledges that he has
submitted to the Company all outstanding expenses
incurred to date in accordance with Company policy;
h) AccuMed agrees that the Payments described above to
the extent incurred to date for Vacation,
relocation, and business expenses shall be payable
by certified check to be delivered to Xxxxx
simultaneously with the execution hereof.
Upon the death of Xxxxx, any benefits payable with respect to his
participation in any employee benefit plans or programs shall be paid
in accordance with the applicable terms of such plans and programs, and
any other payments remaining to be made pursuant to this Section 2
shall be paid to such person(s) or trust(s) as shall have been
designated by written notice delivered to the Company by Xxxxx. If no
such person(s) or trust(s) have been so designated, such payments shall
be made to Xxxxx'x estate.
3. Xxxxx agrees that he will be a Consultant of the Company
through September 30, 1999, and that the compensation set forth in
paragraph 2(a) above, in addition to any expense reimbursed, will be
the only compensation due for his consulting services. In his
consulting capacity, Xxxxx agrees, among other things, to assist
Accumed with the smooth transition of his duties and responsibilities
and the integration of the Microbiology and Cytology business.
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Xxxxx will make himself generally available, offsite and by telephone,
to the extent reasonably practicable for these duties.
4. AccuMed agrees that Xxxxx shall be eligible for stock options
vesting through December 31, 1997, the date upon which his
employment Shall terminate. Xxxxx agrees that he is not eligible for
a fourth quarter bonus under the sales bonus plan and acknowledges
that his rights if any, to any additional bonus are canceled.
5. Xxxxx agrees to return all Company property of any kind,
including credit cards, discs, computer information, files, papers,
customer information, contact names, business and product
information. AccuMed agrees that Xxxxx shall be entitled to retain
only the laptop computer provided him by AccuMed, but not any
computer accessories, Xxxxx acknowledges that the laptop data base
as that data base existed upon the termination of his employment has
been provided to AccuMed and that the data base has been deleted in
its entirety from the laptop, but Xxxxx may retain the computer
programs installed therein and is granted a license by AccuMed for-
the continued use thereof.
6. Xxxxx waives any right to reemployment or reinstatement to his
former position or any other position with AccuMed, and agrees that
he will never seek employment with AccuMed or any of its affiliated
companies.
7. Xxxxx agrees to not make any disparaging remarks about the
Company, including its products, operations, customers, clients,
business ventures, officers, directors, employees and shareholders.
Likewise, AccuMed agrees not to make any disparaging remarks about
Xxxxx and his employment with the Company.
8. Xxxxx reaffirms his obligation to maintain the confidentiality
of the Company's product lines, customers, processes and other trade
secrets learned in the course of his employment.
For 12 months following his termination date, Xxxxx acknowledges that
disclosure of this information would be irreparably harmful to the Company
unless such material has become public knowledge through no fault of Xxxxx.
Xxxxx agrees that he will not retain, and at no time will use or disclose,
directly or indirectly, any of the Company's confidential information.
Confidential information includes, without limitation, all new product
information, customer lists, customer specifications, customer contact
persons, specialized business methods, techniques, computer data, plans and
knowledge relating to the business of the Company; advertising, marketing
materials and concepts, customer information, methods for developing and
maintaining business relationships with clients and prospective clients,
prospective customer lists, procedural manuals, employee training and review
programs, price lists, payroll and
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personnel information, cost information and any other confidential
information or trade secrets that may have been imparted to Xxxxx by the
Company, or which Xxxxx has learned as a result of his employment with the
Company, in all cases such information not having become public, unless such
public status occurred though fault of Xxxxx.
9. Xxxxx agrees that until December 31, 1998, he will not either alone or
in association with others, directly or indirectly, whether as proprietor,
partner, director, officer, agent, salesperson, consultant or otherwise (a)
solicit, or employ, or authorize to be solicited for employment active employees
of the Company or any persons who were, at any time within six (6) months prior
to the termination of his employment employees of the Company; or (b) in any way
divert, take away or interfere with any of the customers of the Company, its
products or its employees.
10. Xxxxx acknowledges and agrees that until December 31, 1998, he will
not engage in any manner as an officer, director, employee, partner, agent,
consultant or in any other individual or representative capacity, with the
following named competitors of the Company or their subsidiaries - Neopath,
Neuromedical Systems, Autocyte, Cytec, MicroScan, Xxxxx, and Morphometrix
Technologies.
11. AccuMed has provided Xxxxx with a signed letter of reference from the
Chief Executive Officer of AccuMed in the form attached hereto and AccuMed
agrees not to rescind it in any way.
12. In the event AccuMed defaults on its obligations hereunder, Xxxxx'x
recourse is limited to filing a lawsuit to enforce his rights hereunder and
under his May 1997 Employment Agreement, under this Separation Agreement.
AccuMed acknowledges that in the event it defaults, the non-compete provided
herein would be void. However, prior to exercising Ms rights as provided in this
paragraph, Xxxxx shall provide AccuMed with written notice to the Company's
Chief Executive Officer of any such default and allow AccuMed ten days from the
delivery of said notice to cure any default.
13. The parties agree that they will be responsible for their own legal
fees incurred in connection with the negotiation and consummation of this
Separation Agreement and General Release.
14. The parties hereto represent that in negotiating this Separation
Agreement and General Release, they received legal advice as to their respective
rights. Xxxxx acknowledges that he has carefully read and understands the terms
of this Separation Agreement and General Release, that he has entered into this
Agreement and General Release voluntarily, knowingly and without duress, with
fall understanding of all terms.
15. This Separation Agreement and General Release shall be binding upon
and inure to the benefit of the parties, their respective representatives,
predecessors,
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successors, heirs, assigns, officers, and directors. Both parties agree that
this Separation Agreement and General Release may be used as evidence in a
subsequent proceeding in which any of the parties allege a breach of this
Agreement.
16. Both parties agree that in the event any provision of this Separation
Agreement and/or General Release is deemed to be invalid or unenforceable by any
court or administrative agency of competent jurisdiction, the separation
Agreement and/or General Release shall be deemed to be restricted in scope or
otherwise modified to the extent necessary to render the same valid and
enforceable, or, in the event that any provision of the Separation Agreement
and/or General Release cannot be modified or restricted so as to be valid and
enforceable, then the same shall be deemed excised from the Separation Agreement
and/or attached General Release if circumstances so require.
17. Both parties agree that the terms of this Separation Agreement and
General Release may be enforced in any court of competent jurisdiction as with
any other contract entered into in ft state of Illinois and that breach of the
terms hereof shall subject the breaching party to such damages or other remedies
as may be available at law or in equity.
18. This instrument constitutes and contains the entire agreement and
understanding between the parties concerning the subject matter of Xxxxx'x
separation, and supersedes all prior negotiations, proposed agreements and
understandings, if any, between the parties. There may be no modification of the
terms of this Agreement except in writing signed by both parties,
19. Xxxxx acknowledge that the only consideration for his execution of
this Separation Agreement and General Release arc the terms stated above; that
no other promise or agreement of any kind has caused Xxxxx to execute this
Separation Agreement and General Release; that he is competent to execute this
separation Agreement and General Release; and that he fully understands the
meaning and intent of this document which is that it constitutes a complete
General Release.
20. Xxxxx and the Company agree that they will keep confidential, to the
full extent permitted by law, the terms of this Agreement, all performance
hereunder and all circumstances relating to Xxxxx'x separation from the Company,
provided, however, that Xxxxx and the Company may disclose the same as required
by law (including, but not by way of limitation, the filing of this Agreement
with the Securities and Exchange Commission), for purposes of tax reporting,
pursuant to legal process, in an action to enforce this agreement, to claim
benefits under this Agreement or under Company benefit plans in which Xxxxx is a
participant or beneficiary, to members of Xxxxx'x immediate family, legal
advisors, and to persons from whom Xxxxx seeks financial advice.
21. The Company further agrees that, if Xxxxx is sued individually
concerning any act, omission or conduct which he undertook in his capacity as an
employee, officer, director or agent of the Company or any of its subsidiaries,
then the Company shall
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defend Xxxxx from the claim and indemnify Xxxxx for any judgment, fine or
settlement resulting therefrom to the same extent as is then authorized by the
Company's By-Laws and/or Certificate of Incorporation for employees as of that
time. The Company hereby represents and warrants that Xxxxx is currently covered
by director and officer liability insurance maintained by the Company which
provides coverage on an occurrence basis through December 31, 1997. To the
extent that the Company maintains director and officer liability insurance in
the future, Xxxxx will be covered by such insurance on the same basis as and to
the same extent as all other senior officers of the Company employed by the
Company during the period of Xxxxx'x employment with the Company.
PLEASE- READ CAREFULLY:
A. The following General Release constitutes a release of all known
and unknown claims. It does not waive rights or claims that may
arise after the date it is executed.
X. Xxxxx agrees that he is waiving rights and claims he may have in
exchange for consideration in addition to things of value to which
he is already entitled.
X. Xxxxx understands that he has been advised that he has the right to
consult with an attorney prior to executing the following General
Release.
X. Xxxxx understands that he has at least twenty-one (21) days within
which to consider the following C3cneral Release.
X. Xxxxx understands that he has at least seven (7) days following his
execution of the following General Release to revoke it and that
the release shall not become effective or enforceable until the
revocation period has expired.
Release and Covenant Not to Xxx
(a) Xxxxx, on behalf of himself, his heirs, executors, attorneys,
administrators, successors and assigns, hereby fully and forever, to the
full extent permitted by law, releases and discharges the Company, and
each of its subsidiaries and affiliated companies and entities and each
of their partners, principals, members, shareholders, directors,
officers, trustees, employees, contractors, consultants, agents and
attorneys, past, present and future, and all predecessors, successors
and assigns thereof (collectively "Released Company Parties") from any
and all claims, demands, agreements, actions, suits, causes of action,
damages, injunctions, restraints and liabilities of whatever kind or
nature, in law, equity or otherwise, whether now known or unknown or
which have ever existed or which may now exist (except to enforce the
terms of this Agreement), including, but not limited to, any and all
claims, liabilities, demands or causes of action relating to or arising
out of Xxxxx'x employment, resignation from the positions of Vice
President and Group President or separation from employment with the
Company,
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including (but not by way of limitation) claims under Title VI of the
Civil Rights Act of 1964, as amended, 42 U.S.C. Section 2000c et al., 42
U.S.C. Sectionl 981, the Civil Rights Act of 1991, the Americans with
Disabilities Act, the Rehabilitation Act of 1973, the Fmployment
Retirement Income Security Act of 1974, the Illinois Wage Payment
Collection Act, the Illinois Human Rights Act, the Family and Medical
Leave Act, the Age Disc on in Employment Act, as amended by the Older
Workers Benefit Protection Act, the anti-trust and restraint of trade
statutes and common law, the federal and state (including, without
limitation, Illinois) statutes or common law, or claims for breach of
contract, for misrepresentation, for violation of any other federal,
state or local state, ordinance or regulation or common law dealing in
any respect with discrimination in employment or otherwise, defamation,
retaliatory or wrongful discharge under the common law of any state,
infliction of emotional distress or any other tort under the common law
of any state or for attorneys' fees. Xxxxx acknowledges and agrees that
this General Release and the Covenant Not To Xxx set forth herein are
essential and material terms of this Separation Agreement and that
without such release and covenant not to xxx no agreement would have
been reached by the parties. Xxxxx understands and acknowledges the
significance and consequences of this General Release.
(b) The following provisions are applicable to, and made a part of,
this Settlement Agreement and General Release.
(i) Xxxxx does not release or waive any right or claim
that arises after the date of execution of this Agreement which may
hereafter arise under the Age Discrimination in Employment Act, as
amended by the Older Workers Benefits Protection Act, provided that any
claim based upon Ms resignation from the positions of Vice President and
Group President and his separation from the Company has, for all
purposes relating to this Agreement, arisen prior to the execution of
this Agreement.
(ii) Xxxxx does not waive any right to the receipt of
payments or benefits not yet due and owing, whether under this Agreement
or under the Company benefit and compensation plans in which Xxxxx is a
participant or beneficiary.
(iii) In exchange for this General Release and Waiver
hereunder, Xxxxx hereby acknowledge that he has received separate
consideration beyond that to which he is otherwise entitled under the
Company's policy or applicable law.
(iv) The Company has advised, and hereby again expressly
advises, Xxxxx to consult with an attorney of his choosing regarding,
and prior to executing, this Agreement, which contains a general release
and waiver.
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(v) This release shall not apply to workers' compensation
claims, or t o claims under state and federal unemployment insurance
laws.
(c) To the maximum extent permitted by law, Xxxxx covenants not
to xxx or to institute or cause to be instituted any kind of claim or
action (except to enforce this Agreement or for any cause excepted from
the foregoing release under the provisions of subparagraph (b) above) in
any federal, state or local agency or court against any of the released
parties relating to the matters covered by the foregoing General
Release. Xxxxx further understands and agrees that in the event that any
claim, suit, or action whatsoever shall be commenced by him or his
heirs, executors or administrators against AccuMed which relates to
Xxxxx'x employment with or termination of employment from AccuMed (other
Om to enforce this Agreement), this Separation Agreement and General
Release shall constitute a complete defense to any such claim, suit or
action so instituted in any federal, state or local agency or court
against the Company relating to matters covered by the foregoing
release.
(d) For good and valuable consideration received by the Company,
the Company, on behalf of itself and its subsidiaries and affiliated
companies and entities, hereby fully and forever, to the full extent
permitted by law, releases and discharges Xxxxx and his heirs,
executors, attorneys, administrators, successors and assigns
(collectively "Released Executive Parties") from any and all claims,
demands, agreements, actions, suits, causes of action, damages,
injunctions, restraints and liabilities of whatever kind or nature, in
law, equity or otherwise, which have ever existed or which may now exist
(except to enforce the terms of this Agreement), including, but not
limited to, any and all claims, liabilities, demands or causes of action
relating to or arising out of Xxxxx'x employment, resignation from the
positions of Vice President and Group President or separation fmm
employment with the Company, including (but not by way of limitation)
claims under federal and state (including, without limitation, Illinois)
statutes or common law, or claims for breach of contract,
misrepresentation, defamation, or any other for under the common law of
any state or for attorneys fees; provided, however, that this release
and discharge does not apply to any rights or claims based upon
information which is not, as of the date hereof, known to the Board of
Directors of the Company, the Chief Executive Officer of the Company or
legal counsel for the Company, including, but not by way of limitation,
information relating to possible embezzlement, fraud or other theft from
the Company by Xxxxx. The Company acknowledges and agrees that this
General Release and the Covenant Not To Xxx set forth herein, are
essential and material terms of this Agreement and that without such
General Release and Covenant Not To Xxx no agreement would have been
reached by the parties. The Company understands and acknowledges the
significance and consequences of this General Release and this
Agreement.
(e) To the maximum extent permitted by law, the Company covenants
not to xxx or to institute or cause to be instituted any kind of claim or
action (except
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to enforce this Agreement or for any act excepted under the provision of
subparagraph (d) immediately preceding). The Company further understands
and agrees that in the event that any claim, suit or action whatsoever
shall be commenced by it against Xxxxx for any matter released hereunder,
this Separation Agreement and General Release shall constitute a complete
defense of any such claim, suit or action so instituted in any federal,
state or local agency or court against Xxxxx relating to the matters
covered by the foregoing release.
IN WITNESS WHEREOF, the parties have executed this Separation Agreement and
General Release on the day and date indicated below.
XXXXXXX X. XXXXX- ACCUMED INTERNATIONAL, INC.
\s\ XXXXXXX X. XXXXX By: \s\ XXXXXX XXXXXXX
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Vice President Human Resources
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Date: January 6, 1998 Date: January 5, 1998
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