1
EXHIBIT (10)-1
RETIREMENT AGREEMENT
Med Partners, Inc., a Delaware corporation (hereinafter referred to as the
"Company"), and Xxxxx X. House (hereinafter referred to as the "Executive"),
hereby agree to the following terms and conditions (the "Agreement") governing
the retirement of the Executive.
1. Executive has by notice to the Board of Directors of the Company and,
subject to the execution of the Agreement by the Company, determined to
retire, and has accordingly submitted his resignation as Chairman of the
Board and Chief Executive Officer of the Company and from any employment
with the Company. In addition, subject to the aforesaid conditions,
Executive has resigned from the Board of Directors of the Company and from
all offices and/or board positions with the Company's subsidiaries. The
Board of Directors of the Company has accepted such resignations and
authorized the Company to enter into this Agreement. All such resignations
are effective as of the close of business on January 16, 1998 (the
"Effective Date").
2. Company and Executive desire for Executive to act as a consultant for the
Company for a two-year period commencing as of the Effective Date pursuant
to the terms referred to below.
3. Except as referred to in this Agreement, the certain Employment Agreement,
dated July 24, 1996, between the Company and the Executive (the "1996
Agreement") shall be terminated and the parties shall have no further
obligations thereunder.
4. Except as referred to below in this Section 4, Executive shall be
entitled, in respect of his retirement, to all of the benefits and
severance compensation referred to in Section 10(c) of the 1996 Agreement
as if the terms of Section 10(c) applied to Executive's retirement
referred to in Section 1 of this Agreement. Notwithstanding the foregoing:
a. in lieu of, and in consideration for the cancellation of the
Company's obligation to make, the payments described in section
10(c)(ii) of the 1996 Agreement, Executive shall be entitled to
payment of an amount equal to $3,274,950, payable in cash in a lump
sum on the seventh calendar day after execution of this Agreement;
b. in lieu of, and in consideration for the cancellation of the
Company's obligation to make, the payments described in section
10(c)(iii) of the 1996 Agreement, Executive shall be entitled to
payment of an amount equal to $2,718,450, payable in cash in a lump
sum on the seventh calendar day after execution of this Agreement.
The Company agrees, represents and warrants that all options to purchase
common stock of the Company ("Options") that have been granted to the
Executive are fully vested and exercisable. To the extent that any Options
granted to the Executive would, as a result of the Executive's retirement
or separation from employment with the Company, cease to remain exercisable
for the full period that such Options otherwise would have remained
exercisable if the Executive had not retired or otherwise separated from
employment with the Company, then such Options (and the agreements under
which such Options were issued) are hereby amended so that such Options
will remain exercisable for the full period that such Options
1
2
otherwise would have remained exercisable if the Executive had not
retired or otherwise separated from employment with the Company. The
Company agrees, represents and warrants that, if and to the extent that
the amendment described in the immediately preceding sentence is not
permitted or otherwise is not effective (as a result of law, any
provision of any applicable option plan or otherwise), then this
Agreement shall constitute the grant to the Executive of an equivalent
number of fully exercisable vested Options (the "Replacement Options")
upon the same exercise prices, terms and provisions as the Options
heretofore granted to the Executive, except that the Replacement
Options will remain exercisable for the full period that the Options
heretofore granted to the Executive would have remained exercisable if
the Executive had not retired or otherwise separated from employment
with the Company. The Company will indemnify and hold harmless the
Executive for any and all damages or other losses (including but not
limited to reasonable attorneys' fees) arising in connection with any
breach of any of the Company's representations or warranties set forth
in this paragraph.
5. Executive acknowledges that he is not entitled to any benefits and
severance compensation referred to in Sections 10(a), (b) and (d) of
the 1996 Agreement.
6. The Company shall continue to owe and shall pay Executive all amounts
due under Sections 5, 6 and 7 of the 1996 Agreement for periods prior
to the Effective Date (to the extent not paid prior thereto) within 30
days of the Effective Date of this Agreement.
7. The provision of Section 11 of the 1996 Agreement shall continue to
apply to all payments referred to in this Agreement.
8. Executive is hereby engaged as a consultant for the Company for a
two-year period commencing on the Effective Date. As a consultant,
Executive shall perform such assignments from time to time as shall be
reasonably requested by the Chairman of the Board of Directors of the
Company regarding the business and affairs of the Company.
9. As compensation for the consulting services referred to in Section 8,
Executive shall be entitled to receive all of the amounts described in
Section 5 of the 1996 Agreement (as applicable to Executive's
employment under the 1996 Agreement), which the parties agree shall
apply as the compensation for the consulting services. The payments
referred to in this Section 9 are independent of and in addition to the
payments referred to in Section 4 of this Agreement. Notwithstanding
the foregoing, the payments referred to in Section 4 of this Agreement
shall be the absolute amount of $776,700 per 12-month period, payable
at the end of each such period, and shall not be contingent upon or
subject to the satisfaction of any performance standards.
10. Contingent upon this Agreement becoming effective and enforceable, the
Company, on its behalf and on behalf of its assigns and successors,
hereby releases the Executive from any and all claims arising out of
the Executive's employment with the Company, the termination of such
employment, and the performance of the Executive's duties with the
Company, and agrees not to xxx the Executive in connection with any
such claims, except to enforce its rights under this Agreement.
2
3
11. The Company agrees that should any inquiry be made regarding the reasons
for the Executive's retirement, the Company shall represent that the
Executive determined of his own volition to retire.
12. IN CONSIDERATION OF THE FOREGOING, WHICH INCUDES AMOUNTS IN ADDITION TO
WHICH THE EXECUTIVE IS OTHERWISE ENTITLED IN THE ABSENCE OF THIS
AGREEMENT, THE SUFFICIENCY OF WHICH AS CONSIDERATION IS ACKNOWLEDGED, AND
IN CONSIDERATION OF THE EXECUTIVE'S AND THE COMPANY'S EXECUTION AND
DELIVERY OF THIS AGREEMENT:
a. The Executive, on his behalf and on behalf of his spouse, heirs,
executors, administrators and assigns hereby irrevocably and
unconditionally releases the Company and any and all of its
subsidiaries, affiliated companies and successor companies
(collectively, the "MedPartners Group"), their directors, officers,
executives, agents, insurers, attorneys and other representatives from
any and all claims, losses, liabilities and causes of action of any
nature, known or unknown, arising in any way out of the Executive's
employment or the termination of such employment or employment
capacity existing on the Effective Date, and the termination of the
Executive's membership on the Board of Directors of the Company, other
than with respect to benefits under this Agreement. Without
limitation, this full waiver and release includes any claim of
contractual restriction on the right of the Company and the
MedPartners Group to terminate the Executive's employment capacity
or employment, wrongful discharge and all rights under federal, state
or local law prohibiting race, sex, age, disability, religion,
national origin or other forms of discrimination, including, but not
limited to, common law, contract, tort or other personal injury
claims, the Age Discrimination in Employment Act of 1967, as amended
("ADEA"), Title VII of the Civil Rights Act of 1964, the Civil Rights
Act of 1991, the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), the Equal Pay Act of 1963, the Americans with
Disabilities Act, the Family and Medical Leave Act, Alabama labor,
employment or civil rights legislation and Alabama workmen's
compensation laws, or any other state or federal statute, arising out
of or in any way related to the Executive's relationship with the
Company and the MedPartners Group and termination of that
relationship, except any right to benefits under this Agreement. The
Executive agrees, on his behalf and on behalf of the parties described
above, not to xxx the Company or the MedPartners Group other than to
enforce the Executive's rights under this Agreement.
13. The provisions of Section 6(b), (c), (d), (e), and (f), 7 and 12 of the
1996 Agreement shall apply to Executive during the term during which
Executive acts as a consultant for the Company pursuant to this Agreement.
14. Unless specifically addressed, this Agreement is not intended to be a
waiver of any rights the Executive may have to (1) any nonforfeitable
benefits under any of the Company's employee benefit plans and executive
compensation arrangements which, by their terms, specifically provide for
nonforfeitable benefits; (2) convert group benefits under any of the
Company's employee benefit plans to individual coverage, to the extent
that plans allow such
3
4
conversion; or (3) continue coverage under any of the Company's medical
plans as provided under the Employee Retirement Income Security Act of
1974, as amended, or section 4980 B of the Internal Revenue Code of 1986,
as amended (provided that any medical plan coverage provided wholly or
partially at Company expense under the 1996 Agreement shall count against
the period for which such continuation coverage can be elected).
15. Except as otherwise required by law, the Executive shall not at any time
or in any manner, directly or indirectly divulge, disclose or communicate
to any person, firm or corporation in any manner whatsoever, without the
written consent of the Company, any of the terms and conditions of the
Agreement or any information concerning any matter affecting or relating
to the business of the Company (except in each case to the extent such
information is in the public domain or is of general public knowledge).
All such information is deemed confidential, material and important to the
Company. It is agreed that dissemination or communication of such
information will gravely affect the effective and successful conduct of
the business and its goodwill, and that any breach of the terms of this
paragraph shall be a material breach of this Agreement. The Executive
agrees that the Company is entitled to injunctive relief in the event of
such a breach.
16. All claims, disputes and controversies under this Agreement shall be
subject to the same provisions as are applicable to such matters in
Section 14 of the 1996 Agreement.
17. Executive shall continue to be entitled to the protections of the
indemnification agreement between the Company and the Executive currently
in effect, as well as provisions set forth in the By-Laws of the Company
as of the Effective Date regardless of subsequent changes in the By-Laws.
The Company agrees to indemnify the Executive and to advance expenses to
the Executive, to the fullest extent permitted by applicable law in effect
on the Effective Date and to such greater extent as applicable law may
hereafter from time to time permit. Such rights shall include, but not be
limited to, the right to indemnification to the fullest extent permitted
by Section 145 of the Delaware General Corporation Law.
18. By his signature below, the Executive affirms that he has been given the
opportunity to review and deliberate upon this Agreement and has received
written notice of his right to consult with an attorney regarding this
Agreement, has done so to the extent that he deemed such action
appropriate. The Executive has carefully read and fully understands all of
the provisions and effects of the Agreement and agrees that his execution
below is knowing and voluntary. The Executive enters into this Agreement
for the benefits set forth above, and no other representations have been
made to the Executive to induce or influence his execution of this
Agreement. This constitute the only and entire agreements between the
Company and the Executive and supersede any and all prior understandings
or agreements regarding the employment rights and benefits of the
Executive, if any. There are no separate understandings, representations or
agreements other than those contained herein. The Executive understands
that benefits are not payable under this Agreement unless he enters into
this Agreement and does not revoke this Agreement. This Agreement may be
revoked by the Executive at any time within seven (7) days after he signs
this Agreement. This Agreement is not effective or enforceable until the
seven (7) day revocation period has expired. This Agreement shall become
effective, irrevocable and enforceable following expiration of the
revocation period.
4
5
Entered at Birmingham, Alabama, this 16th day of January, 1998.
----------------------------------------
XXXXX X. HOUSE
MEDPARTNERS, INC.
By:
------------------------------------
Xxxxxxx X. Serushy
Chairman and Chief Executive Officer
5
