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EXHIBIT 10(Y)
TERMINATION AGREEMENT
AND RELEASE
THIS AGREEMENT (the "Agreement") is made and entered into as of the
15th day of January, 2001 by and between Response Oncology, Inc. ("ROI") and
Xxxxxxx XxXxxxxxx ("Executive").
RECITALS
WHEREAS, ROI and Executive have previously entered into an Employment
Agreement for Chief Operating Officer, dated January 3, 2000 (the "Employment
Agreement"), pursuant to which ROI employed Executive as the Chief Operating
Officer of ROI, for a term to expire on January 3, 2002, a copy of which is
attached hereto as Exhibit A; and,
WHEREAS, ROI and Executive have concluded that it is in their mutual
best interests that the Employment Agreement be terminated and Executive remain
employed as an at-will employee until no later than December 31, 2001 as set
forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing, and the mutual
promises hereinafter set forth, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties agree
as follows:
1. Recitals. The foregoing recitals are restated and incorporated by
reference and made a part of this Agreement.
2. Termination of Employment Agreement. Executive's Employment Agreement
with ROI shall terminate effective as of January 15, 2001 (the
"Termination Date"), except as set forth below. All of ROI's and
Executive's rights and obligations under the Employment Agreement,
including without limitation, the payment of any compensation to
Executive pursuant to Article 3 of the Employment Agreement, shall
terminate and be of no further force or effect as of the Termination
Date, except for the following (which both parties acknowledge and
agree shall remain in full force and effect as and to the extent set
forth below):
A. Section 3.4 of the Employment Agreement ("Business
Expenses") shall survive the termination of the
Employment Agreement to the extent that Executive has
incurred reasonable travel and other expenses in
connection with the performance of his duties and
obligations prior to the Termination
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Date and has submitted proper documentation in
accordance with ROI's policies for expense
reimbursement.
B. Article 5 of the Employment Agreement
("Confidentiality; Corporate Opportunities") and the
related provisions of Section 10.11 of that Agreement
shall survive the termination of the Employment
Agreement and remain in full force and effect
according to its terms.
C. The loan by ROI to Executive will remain in effect as
modified by Section 5 below.
D. Executive's covenant not to compete set out in
Article 8 of the Employment Agreement and the related
provisions of Section 10.11 of that Agreement are
hereby reformed and narrowed to apply only to U.S.
Oncology and Salick Health Care, Inc.
3. Compensation and Benefits. ROI shall pay to Executive a one-time lump
sum in the amount of one hundred twenty-five thousand dollars
($125,000), subject to applicable withholdings. Executive is not
entitled to any other compensation or salary or any other increase in
compensation pursuant to the Employment Agreement. During the time
Executive continues to be employed by ROI he will be paid at the same
rate at which he has previously been paid. During that time Executive
shall also be entitled to continue to participate in all employee
benefit plans, including any plans for executives in which he is
currently a participant, and to receive all benefits to which any
salaried employee is eligible under any existing plans established for
salaried employees, each to the extent permissible under the terms and
conditions of such plans.
4. Relinquishment of Stock Options. Pursuant to Section 3.7 of the
Employment Agreement, Executive was granted one hundred fifty thousand
(150,000) shares of ROI's common stock, of which one-third would vest
each year. Executive agrees to forfeit all such options and all rights
to exercise, and all vested but unexercised stock options are hereby
cancelled.
5. Loan. Pursuant to Section 3.6 of the Employment Agreement, ROI made a
loan to Executive in the amount of fifty thousand dollars ($50,000) for
the purchase of a home. Commencing on the date one month after the
Termination Date, Executive agrees to pay installments of interest
monthly on or before the first day of each month or, so long as
employed by ROI, to continue to make interest payments through regular
payroll deductions. Executive will pay ROI the principal amount in a
lump sum, with accrued and unpaid interest on or before January 15,
2002 (the "Repayment Date"). All unpaid principal and interest will be
due and payable on the Repayment Date. Notwithstanding
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the foregoing, all unpaid principal and interest will be due and
payable within five (5) business days of any sale prior to the
Repayment Date of the home Executive purchased (in part) with the
proceeds of the ROI loan to him.
6. Termination of Employment Relationship. As of December 31, 2001 or at
any earlier date on which his employment is terminated at the
discretion of either ROI or Executive, Executive agrees that he shall
no longer be an employee of ROI and will not thereafter hold himself
out to be an employee, agent or independent contractor of ROI.
7. Release by Executive. Except with respect to Executive's rights
pursuant to this Agreement and his rights to any vested benefit in any
qualified retirement plans and in or to any other benefit plans, all of
which are hereby expressly reserved, Executive for himself and his
representatives, agents, heirs, successors, and assigns, and their
heirs, successors and assigns, and each of them (hereinafter
"Releasors") waives, releases, relinquishes, and discharges ROI, its
directors, officers, employees, representatives, and agents and its and
their heirs, successors, and assigns, and each of them (hereinafter
"Releasees") from any and all claims, liabilities, suits, damages,
actions, or manner of actions, whether in contract, tort, or otherwise,
which the Releasors or any of them ever had, now have, or hereafter may
have against the Releasees, or any of them, whether the same be in
administrative proceedings, in arbitration, at law, in equity, or
mixed, arising from or relating to any act or omission prior to the
Termination Date relating to Executive's employment by ROI or the
termination of the Employment Agreement. Notwithstanding the foregoing,
in the event that any claim(s) is asserted against Releasors, or any of
them, by a person or entity which is not a party to this Agreement,
Releasors, and each of them, hereby specifically reserve and retain any
and all rights, claims, and defenses which they, or any of them, now
have, have had, or would otherwise have against Releasees, or any of
them, arising out of the act(s) or omission(s) which is the subject
matter of each claim(s) against Releasors, or any of them.
It is further understood and agreed that this general release applies
to any and all claims, liabilities, suits, damages, actions or manner
of actions relating to Executive's employment with ROI pursuant to the
Employment Agreement and the termination of that agreement which may
arise pursuant to any federal, state or local employment law,
regulation or other requirement including, but not limited to, Title
VII of the 1964 Civil Rights Act, the Americans With Disabilities Act,
the Age Discrimination in Employment Act (all as amended), and any
claim in tort or contract. Executive agrees, warrants and represents
that he will not hereafter file any claim or action against Releasees
or any of them before any state, federal or local agency or in any
federal or state court concerning any matter based upon, arising from
or relating to his employment pursuant to the Employment Agreement or
the termination of the Employment Agreement.
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8. Release by ROI. Except with respect to ROI's rights pursuant to this
Agreement, all which are hereby expressly reserved, ROI for itself and
its directors, officers, employees, representatives, and its agents and
its and their heirs, successors, and assigns, and each of them
(hereinafter "ROI Releasors") waives, releases, relinquishes, and
discharges Executive and his heirs, successors, and assigns, and each
of them (hereinafter "Executive Releasees") from any and all claims,
liabilities, suits, damages, actions, or manner of actions, whether in
contract, tort, or otherwise which the ROI Releasors or any of them
ever had, now have, or hereafter may have against the Executive
Releasees, or any of them, whether the same be in administrative
proceedings, in arbitration, at law, in equity, or mixed, arising from
or relating to any act or omission prior to the Termination Date
relating to Executive's employment by ROI or termination of the
Employment Agreement. Notwithstanding the foregoing, in the event that
any claim(s) is asserted against the ROI Releasors, or any of them, by
a person or entity which is not a party to this Agreement, the ROI
Releasors, and each of them, hereby specifically reserve and retain any
and all rights, claims, and defenses, which they, or any of them, now
have, have had, or would otherwise have against Executive Releasees, or
any of them, arising out of the act(s) or omission(s) which is the
subject matter of each claim(s) against the Executive Releasors or any
of them.
9. Superceded Agreement. As of the Termination Date, this Agreement
supercedes and replaces all existing and previous agreements between
the parties including the Employment Agreement except as specified
herein. Notwithstanding the foregoing, the parties shall fulfill any
and all obligations and covenants under previous agreements as required
by such agreements until the Termination Date, and shall remain liable
with respect to such obligations.
10. Notice. Any notice, demand or other communications that must or may be
given by either party hereto shall be in writing and shall be made by
hand delivery, by overnight delivery commercial carrier (with proof of
receipt), or by registered or certified mail, postage prepaid, receipt
requested, addressed as follows:
To Response Oncology, Inc.:
Response Oncology, Inc.
0000 Xxxxxx Xxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
Attn: Chair of Compensation Committee
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To Executive:
Xxxxxxx XxXxxxxxx
0000 Xxxxxx Xxxx Xxxx
Xxxxxxx, XX 00000
Any notice provided pursuant to this Agreement shall be effective upon
the earlier of the date received or three (3) days following mailing by
registered or certified mail, return receipt requested. Either party,
by written notice to the other, may change the address, persons, or
entities to whom notice is to be provided.
11. Severability. If any one or more of the provisions of this Agreement is
ruled to be wholly or partly invalid or unenforceable by a court or
other government body of competent jurisdiction then: (a) the validity
and enforceability of all provisions of this Agreement not ruled to be
invalid or unenforceable shall be unaffected; (b) the effect of the
ruling shall be limited to the jurisdiction of the court or other
government body making the ruling; (c) the provision(s) held wholly or
partly invalid or unenforceable shall be deemed amended, and the Court
or other government body is authorized to amend and to reform the
provision(s) to the minimum extent necessary to render it valid and
enforceable in conformity with the parties' intent as manifested in
this Agreement and a provision having a similar economic effect shall
be substituted; and (d) if the ruling and/or the controlling principle
of law or equity leading to the ruling is subsequently overruled,
modified, or amended by legislative, judicial, or administrative
action, then the provision(s) in question as originally set forth in
this Agreement shall be deemed valid and enforceable to the maximum
extent permitted by the new controlling principle of law or equity.
12. Assignment. The obligations of Executive under this Agreement are
personal in nature and he may not assign this Agreement or his rights
or obligations, or any of his rights or obligations, under this
Agreement, and any attempt by Executive to assign this Agreement or any
of his rights or obligations thereunder shall be null, void, and
without effect. ROI may assign this Agreement to any successor in
interest, any merged or consolidated entity, any purchaser of assets of
ROI, or any parent, affiliate or subsidiary.
13. Waiver of Breach. The waiver by either party of a breach or violation
of any provision of this Agreement shall not operate as or be construed
to be a waiver of any subsequent breach of this Agreement. Further,
neither party shall be deemed to have waived any provision of or right
under this Agreement unless such waiver is set forth in writing signed
by the party against whom waiver is asserted.
14. Headings. The captions used throughout this Agreement are for
convenience only and the words contained therein shall in no way be
held or deemed to define, limit, describe,
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explain, modify, amplify or add to the interpretation, construction or
meaning of any provision of or the scope or intent of this Agreement,
nor in any way affect this Agreement.
15. Attorney's Fees. In the event that either party commences litigation in
order to enforce the terms of this Agreement, the party prevailing in
such litigation shall have the right to an award for such of its
reasonable attorney's fees and costs incurred herein.
16. Binding Agreement. The covenants, conditions, agreements, terms and
provisions herein contained shall be binding upon, and shall inure to
the benefit of, the parties hereto and each of their respective
successors, heirs, legal representatives and permitted assigns.
17. Entire Agreement. This Agreement, including all exhibits and
attachments, contains the final and entire agreement between the
parties hereto, and they shall not be bound by any terms, statements,
conditions, or representations, oral or written, express or implied,
not herein contained unless mutually agreed to and made a part hereof.
18. Applicable Law. This Agreement (and the terms and provisions hereof)
shall be construed and enforced in accordance with the laws of the
State of Tennessee, without resort or reference to the State of
Tennessee's choice or conflict of law provisions or principles.
19. Construction. Executive and ROI agree that each party has had the
opportunity to consult, and has consulted with, counsel in connection
with negotiation of the terms and conditions of this Agreement. This
Agreement shall not be construed more strictly against any party to it
merely by virtue of the fact that the Agreement may have been drafted
or prepared by such party or its counsel, it being recognized that each
party has consulted with counsel and has had the opportunity to
contribute substantially and materially to the Agreement's preparation
and that this Agreement has been the subject of and is the product of
negotiations between the parties.
20. Consideration Period. Executive has twenty-one (21) days in which to
review this Agreement and have it reviewed by counsel, it being
understood that, at his option, Executive shall have the right to
execute this Agreement prior to that date. It is also understood and
agreed that Executive shall be bound by this Agreement if not revoked
within seven (7) days of execution of the Agreement. ROI will have no
obligation to make the foregoing payment or provide any of the
foregoing benefits unless and until this Agreement has been fully
executed and the consideration period has expired without Executive
having revoked his execution of or consent to the Agreement.
IN WITNESS WHEREOF, the parties have entered into this Agreement on the
date first above written.
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/s/ Xxxxxxx XxXxxxxxx
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Xxxxxxx XxXxxxxxx
Response Oncology, Inc.
By: /s/ Xxxxxxx X. XxXxxxxxx
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Name: Xxxxxxx X. XxXxxxxxx
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Title: President & CEO
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