SEPARATION AGREEMENT
Exhibit 10.1
This Mutual Separation Agreement (“Agreement”) is entered into between AMICAS, Inc., (the
“Company”), and Xxxxx XxXxxxxxx (“Employee”).
W I T N E S S E T H:
WHEREAS, Employee is employed by the Company;
WHEREAS, Employee’s employment by the Company will be terminated on December 31, 2007 (the
“Termination Date”);
WHEREAS, in recognition of Employee’s executive position with the Company and Employee’s
knowledge and experience concerning the Company’s Business and its confidential information and
trade secrets, Employee has agreed to provide Company with other protections as set forth herein;
WHEREAS, the Company and Employee desire to settle fully and finally all claims Employee may
have against the Company and all claims Company may have against the Employee; and
WHEREAS, except as expressly provided herein, the Company and Employee intend that this
agreement supersede and replaces any and all other agreements entered into between the Company and
Employee;
WHEREAS, the Company and Executive desire to affect a smooth transition between now December
31, 2007;
NOW, THEREFORE, in consideration of the covenants and agreements set forth herein, and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
Company and Employee agree as follows:
1.
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Transition Period | |
| Employee agrees that Employee’s duties and obligations as president and chief operating officer of the Company are modified and that Employee will retain the title of president and chief operating officer through December 31, 2007, provided, however, that during such period Employee conducts himself in a professional manner, does nothing to impair the Company’s reputation or business interests, and discharges his responsibilities to the Company as assigned or required by law. Employee is relieved of daily operational responsibilities and will act as advisor to the chairman and chief executive officer. These services will be performed at the direction of the chairman and chief executive officer and will be performed off-premises | ||
2.
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Severance | |
| A. Company shall pay to the Employee as severance pay Employee’s current monthly base salary of $25,000, in accordance with the Company’s normal payroll procedures, for the remainder of Employee’s Term, which ends December 31, 2007, and an additional twelve (12) months through December 31, 2008; and | ||
| B. Company shall pay the COBRA insurance premiums for medical and dental insurance for the Employee and the Employee’s family for the remainder of Employee’s Term, which ends December 31/2007, and an additional twelve (12) months through December 31, 2008, provided that Employee elects and remains eligible for such |
| coverage. All COBRA premiums after December 31, 2008 shall be paid solely by the Employee; and |
| C. if Company achieves the targeted goals for the fiscal year set forth in Exhibit 1 of Employee’s amended employment agreement only, then Employee shall receive the benefits provided therein, if any, including a bonus and the vesting of any performance based stock options all as described in Exhibit 1 (as adjusted May, 2007 to incorporated acquisition of VSF). Company shall pay Employee the bonus at the time bonuses are paid to other executives, but not later than the next January 31st following the Employee’s last day of employment. The rights to exercise any vested performance based stock options shall terminate on the ninety (90) day anniversary following the date Employee is notified by Company that the targeted goals were met; | ||
3.
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General Release and Covenant Not to Xxx by Employee. |
In consideration of the undertakings, transactions and consideration recited in this
Agreement, Employee, for himself and his heirs, successors and assigns, and personal
representatives, hereby releases, discharges, and covenants not to xxx the Company, its
predecessors, successors, parents, subsidiaries, affiliates, divisions, assigns, employees as of
the Termination Date and/or the Effective Date, officers, directors, shareholders, representatives,
attorneys, and agents (collectively referred to herein as “Releasees”), collectively, separately,
and severally, from or for any and all state, local or federal claims, causes of action,
liabilities, and judgments of every type and description whatsoever, known and unknown (including,
but not limited to, claims arising under the Civil Rights Act of 1964, as amended; 42 U.S.C. §
1981; the Rehabilitation Act of 1973, as amended; the Employee Retirement Income Security Act of
1974, as amended; the Fair Labor Standards Act of 1938, as amended; the Americans with Disabilities
Act; the Securities Act of 1933; and the Securities Exchange Act of 1934) which Employee,
Employee’s heirs, administrators, executors, personal representatives, beneficiaries, and assigns
may have or claim to have against Releasees as of the date hereof related to, or for any reason
arising from, his employment with the Company or his separation from employment. It is agreed that
the foregoing shall not release any claim that the Employee may have against the Company arising as
a result of the ownership of any stock, stock option or other equity or debt interest in the
Company provided, however, Employee shall not breach any term of the Non Compete and Non Disclosure
Agreement in exercising his right(s) to any such claim.
In consideration of the undertakings, transactions and consideration recited in this
Agreement, the Company, for itself and its successors and assigns, hereby unconditionally and
irrevocably remises, releases and forever discharges the Employee, the Employees heirs and
administrators, or any of them, of and from any and all suits, claims, demands, interest, costs
(including attorneys’ fees and costs actually incurred), expenses, actions and causes of action,
rights, liabilities, obligations, promises, agreements, controversies, losses and debts, of any
nature whatsoever related to Employee’s employment and/or separation from employment, which the
Company now has, owns or holds, or at any time heretofore ever had, owned or held, or could have
owned or held, whether known or unknown, suspected or unsuspected, from the beginning of the world
to the date of execution of this Agreement; provided, however, that nothing in this
Agreement shall prevent the Company from bringing any claims against Employeearising from or
related to any intentional misconduct engaged in by Employeeas an
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employee, officer or member of the Board of Directors, including, but not limited to, claims
for theft or fraud.
4.
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Release of Claims under the Age Discrimination in Employment Act of 1967, as Amended. |
Employee hereby knowingly and voluntarily releases, discharges and covenants not to xxx
Releasees, collectively, separately and severally, from or for any and all liability, claims,
allegations, and causes of action arising under the Age Discrimination in Employment Act of 1967,
as amended (“ADEA”), which Employee, Employee’s heirs, administrators, executors, personal
representatives, beneficiaries, and assigns may have or claim to have against Releasees.
Notwithstanding any other provision or section of this Agreement, Employee does not hereby waive
any rights or claims under the ADEA that may arise after the date on which Employee signs the
Agreement.
Employee hereby acknowledges and represents that (a) Employee has been given a period of at
least twenty-one (21) days to consider the terms of this Agreement, (b) the Company has advised
Employee in writing to consult with an attorney prior to executing this Agreement, and (c) Employee
has received valuable and good consideration to which Employee is otherwise not entitled in
exchange for Employee’s execution of this Agreement.
Employee and the Company hereby acknowledge this Agreement shall not become effective or
enforceable until the eighth (8th) day after it is executed by Employee (“Effective Date”) and that
Employee may revoke this Agreement at any time before the Effective Date.
In the event Employee chooses to exercise Employee’s option to revoke this Agreement, Employee
shall notify the Company in writing to the Company’s designated agent for this purpose, and return
to the Company all monies paid pursuant to this Agreement, no later than 5:00 p.m. of the last day
of the revocation period. Such notice shall be delivered to the Company by registered or certified
mail, return receipt requested and addressed as follows:
| Vice President, Human Resources | ||
| AMICAS, Inc. | ||
| 00 Xxxxx Xx. | ||
| Xxxxxx, XX 00000 |
4.
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Claims for Attorneys’ Fees, Costs and Expenses |
Employee understands and agrees that the aforesaid payments to Employee include and encompass
therein any and all claims with respect to attorneys’ fees, costs, and expenses for or by any and
all attorneys who have represented Employee or with whom Employee has consulted or who have done
anything in connection with the subject matter of this Agreement or any and all claims released
herein.
5.
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Indemnification for Loss of Consortium |
Employee covenants and agrees that if there is any claim for loss of consortium
against Releasees, or any other similar claim, arising out of or related to Employee’s relationship
or transactions with the Company (including not limited to Employee’s employment or separation
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of employment with the Company), Employee agrees to indemnify and hold the Company harmless from
any liability, including costs and expenses (as well as reasonable attorneys’ fees) incurred by the
Company as a result of any such claim.
6.
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Agreement to Cooperate |
Employee further covenants and agrees that Employee shall cooperate, including attendance at
depositions, arbitrations and trials, with the Company in any pending or future matters involving
any litigation, investigation, or other dispute, in which Employee, by virtue of Employee’s prior
employment with the Company, has relevant knowledge or information. The Company agrees to promptly
reimburse the Employee for any reasonable out of pocket costs and expenses incurred and to pay the
Employee a reasonable per diem compensation.
7.
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Confidentiality of Agreement. |
A. As of the Termination Date and henceforth, except as otherwise specifically provided in
Section 7.B. of this Agreement and except as otherwise required by law, rule or regulation, both
parties agree and covenant that they have maintained and will continue to maintain the
confidentiality of, and not to disclose, reveal, publish, disseminate, or discuss, directly or
indirectly, to or with any other person or entity the terms of this Agreement (including whether or
not any amount was paid, the amount paid, or opinion(s) or information each party may have with
respect to this Agreement).
B. The following disclosures, which are specific exceptions to Section 7.A. above, are
permitted in the following limited circumstances:
(i) Employee may make such disclosures as are reasonably necessary for tax reporting purposes;
(ii) Employee may disclose the terms and amount paid under this Agreement as reasonably
necessary to obtain legal, tax, or accounting advice or services;
Employee is permitted to disclose the terms of this Agreement to the extent required in any legal
proceeding involving the enforcement of this Agreement, but, as to any other legal proceedings,
Employee is permitted to disclose the terms of this Agreement only to the extent (1) specifically
requested and consented to in writing by an officer or other authorized representative of the
Company, or (2) compelled pursuant to a subpoena or court order, provided, however, that, if
reasonably possible, before disclosing this Agreement pursuant to a subpoena or court order,
Employee will provide notice to the Company that Employee has been served with such subpoena or
court order, including by providing the Company with a copy thereof, and will not disclose this
Agreement before the Company has had the opportunity to object to such disclosure within the time
allowed by law or otherwise to act to protect such information from disclosure. Nothing in this
provision shall be construed to require Employee to disobey any court order or lawful process.
8.
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Non-Disparagement. |
Except as otherwise required by law, both parties agree and covenant that they shall not make
any statement, written or verbal, in any forum or media, or take any action in disparagement of the
other party to the general public, current or prospective employers of the Employee, and/or the
Company’s employees, customers, suppliers, and/or business partners.
9.
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Return of Company Property. |
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On or before the Termination Date or as promptly thereafter as reasonable practicable, Employee
shall deliver to the Company (a) all memoranda, notes, records, manuals or other documents
(including, but not limited to, written instruments, voice or data recordings, or computer tapes,
disks or files of any nature), including all copies of such materials and all documentation
prepared or produced in connection therewith, pertaining to the performance of Employee’s services
for the Company, the business of the Company, or containing Trade Secrets or Confidential
Information regarding the Company’s business, whether made or compiled by Employee or furnished to
Employee by virtue of Employee’s employment with the Company, and (b) all computers, credit cards,
telephones, office equipment, software, and other property the Company furnished to Employee by
virtue of Employee’s employment with the Company.
10.
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Attorneys’ Fees, Costs and Expenses. |
If any action at law or in equity is necessary to enforce or interpret the terms of this
Agreement, the prevailing party will be entitled to reasonable attorneys’ fees, costs and necessary
disbursements in addition to any other relief to which such party may be entitled.
11.
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Applicable Law. |
This Agreement has been entered into in and shall be governed by and construed under the laws
of the State of Massachusetts without reference to the choice of law principles thereof.
12.
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Modification; Severability. |
If fulfillment of any provision of this Agreement shall transcend the limit of validity
prescribed by law, then the obligation to be fulfilled shall be reduced or modified to the limit of
such validity; and if any clause or provision contained herein operates or would operate to
invalidate this Agreement in whole or in part, then such clause or provision only shall be held
ineffective as though not herein contained, and the remainder this Agreement shall remain in full
force and effect.
13.
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Understanding. |
Employee herewith covenants and agrees that Employee has read and fully understands the
contents and the effect of this Agreement. Employee warrants and agrees that Employee has had a
reasonable opportunity and has been advised in writing to seek the advice of an attorney as to such
content and effect. Employee accepts each and all of the terms, provisions, and conditions of this
Agreement, and does so voluntarily and with full knowledge and understanding of the contents,
nature, and effect of this Agreement.
14.
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Entire Agreement; Miscellaneous. |
Except for sections 1D, 1E, 3A(ii), 0X, 0X, 0X, 0X, 0, 5 and 7 of the Employee’s Employment
Agreement and the Non Compete and Non Disclosure Agreement (Exhibit 2 to the Employee’s Employment
Agreement) which terms therein shall govern and prevail over the terms of this Agreement and which
shall survive the execution of this Agreement, Employee and the Company acknowledge and agree that
they are not relying on any representations, oral or written, other than those expressly contained
in this Agreement, and that this Agreement supersedes all other prior agreements (except as
described above), proposals, negotiations,
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conversations, discussions and course of dealing between the parties with respect to the
subject matter hereof. Section headings are for convenience of reference only and are not intended
to create substantive rights or obligations. This Agreement may be executed in counterparts, each
of which shall be deemed an original, and together shall constitute one and the same Agreement.
/s/ Xxxxx XxXxxxxxx
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October 25, 2007 | |
Xxxxx XxXxxxxxx
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Date | |
/s/ Xxxxxxx Xxxxxx, M.D., M.S.
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October 25, 2007 | |
Xx. Xxxxxxx Xxxxxx, Chairman and CEO
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Date |
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