EXHIBIT 10.14
SEPARATION AGREEMENT AND GENERAL RELEASE
THIS SEPARATION AGREEMENT AND GENERAL RELEASE (this "Agreement") is
made and entered into by and between Xxxxx Xxxxxx Xxxxxxx (the "Employee") and
Mariner Post-Acute Network, Inc. (the "Company").
STATEMENT OF FACTS
Employee's employment with the Company will terminate on December 31,
2002. Employee desires to accept the following agreements, including, without
limitation, certain additional consideration from the Company in return for
Employee's general release and non-disclosure agreements set forth below.
Employee and the Company desire to settle fully and finally all differences and
disputes between them, including, but in no way limited to, any differences and
disputes that might arise, or have arisen, out of Employee's employment with the
Company, and the termination thereof.
STATEMENT OF TERMS
In consideration of the mutual promises herein, it is agreed as
follows:
1. Non-Admission of Liability. Neither this Agreement nor the
Company's offer to enter into this Agreement shall in any way be construed as an
admission by the Company that it has acted wrongfully with respect to Employee
or any other person, or that Employee has any rights whatsoever against the
Company. The Company specifically disclaims any liability to or wrongful acts
against Employee or any other person, on the part of itself, its employees or
its agents.
2. Termination of Employment. Employee represents, understands
and agrees that Employee's employment with the Company will terminate on
December 31, 2002 (the "Separation Date").
3. Effective Date. The effective date of this Agreement shall be
the eighth day after Employee signs this Agreement (the "Effective Date"). As of
the Effective Date, if neither party has revoked this Agreement pursuant to
Section 16(e), this Agreement shall be fully effective and enforceable.
4. Consideration. In full consideration and as material
inducement for Employee's signing of this Agreement and General Release, the
Company will pay three hundred thirty thousand dollars and no cents
($330,500.00), less legal deductions, over a 52 week period and payable
bi-weekly. Furthermore, the Company will pay the Employee for all earned and
accrued vacation not used by the Employee.
5. Consultation. During the 52 week period described in Section
4, Employee shall be available to provide consultation services to the Company
as may be requested by the Chief Executive Officer or the General Counsel.
6. Cooperation by Employee. In consideration of the amount paid
to the Employee as provided in Section 4, the Employee agrees to cooperate fully
with the Company in any litigation by or against the Company or other
business-related matters.
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7. Cessation of Authority. Employee understands and agrees that
as of the Separation Date, Employee is no longer authorized to incur any
expenses, obligations or liabilities, or to make any commitments on behalf of
the Company except those authorized in advance by the Chief Executive Officer or
the General Counsel. Employee agrees to submit to the General Counsel, within
thirty (30) days of the Separation Date, any and all expenses incurred by
Employee through The Separation Date and any and all contracts or other
obligations entered into by Employee on behalf of the Company.
8. Return of Company Materials and Property. Employee understands
and agrees that Employee will turn over to the General Counsel, on or before the
Separation Date, all files, memoranda, records, credit cards, manuals, computer
equipment, computer software, pagers, cellular phones, facsimile machines, and
any other equipment and other documents, and all other physical or personal
property that Employee received from the Company and/or that Employee used in
the course of Employee's employment with the Company and that are the property
of the Company or its customers, with the exception of the material and property
determined by the General Counsel to be retained by the Employee to provide
consultation services as described in Section 5.
9. Confidential Information and Trade Secrets. Employee agrees to
protect and hold in confidence all Trade Secrets and Confidential Information
("Company Information") belonging to the Company that Employee has received
through or as a result of Employee's employment by the Company or consultation
to the Company and to take no action that may cause any such information to lose
its character as Company Information. Employee shall neither disclose, divulge
nor communicate to any third party any Trade Secrets belonging to the Company.
For purposes of this Section 9, "Confidential Information" means
confidential data and confidential information relating to the Company's
business (which does not rise to the status of a Trade Secret) which has value
to the Company and is not generally known to its competitors, such as Company
pricing information, marketing information, profit margins, customer
preferences, customer lists, and other marketing and sales information that
would have value if disclosed to competitors. Confidential Information shall not
include any data or information that (i) has been voluntarily disclosed to the
public by the Company, (ii) has been independently developed and disclosed to
the public by others, (iii) otherwise enters the public domain through lawful
means, or (iv) was already known by Employee at the time of disclosure. The
provisions in this Agreement restricting the disclosure and use of Confidential
Information shall survive for a period of two (2) years following the execution
of this Agreement.
For purposes of this Section 9, "Trade Secrets" means information
including, but not limited to, technical or non-technical data, formulas,
patterns, compilations, programs, devices, methods, techniques, drawings,
processes, financial data, financial plans, product or service plans or lists of
actual or potential customers or suppliers or customer preferences which (1)
derives economic value, actual or potential, from not being generally known to,
and not being readily ascertainable by proper means by, other persons who can
obtain economic value from its disclosure or use; and (2) is the subject of
efforts that are reasonable under the circumstances to maintain its secrecy. The
provisions in this Agreement restricting the disclosure and use of Trade Secrets
shall survive the execution of this Agreement and shall survive for so long as
the respective information qualifies as a trade secret under applicable law.
10. Agreement Not To Solicit Employees, Independent Contractors,
or Consultants. Employee represents that Employee has not and that Employee will
not, for a period of one (1) year after the Separation Date, either directly or
indirectly, on Employee's own behalf or on behalf of
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others, solicit, divert, or hire away, any person employed by the Company,
whether or not such employee is a full-time or temporary employee of the Company
and whether or not such employment is pursuant to a written agreement for a
determined period of time or at will, or any consultant or independent
contractor engaged by the Company.
The Employee further agrees that the Employee has not and that the
Employee will not, for a period of one (1) year after the Effective Date, either
directly or indirectly, on the Employee's own behalf or on behalf of others, (1)
contact any referral source or customer of the Company, or other person who
conducts business with the Company at the location(s) at which the Employee
worked for the purpose of inducing or attempting to induce such referral source,
customer or other person to cease doing business with the Company; and (2) call
on, solicit, attempt to obtain, accept, or in any way secure business from any
referral source or customers of the Company who conducts business with the
Company at the location(s)at which the Employee worked, nor, directly or
indirectly, aid or assist any other persons, firm or corporation in the
solicitation of such referral source or customer.
11. No Obligation. Employee agrees and understands that the
consideration described above in Section 4 of this Agreement is not required by
the Company's policies and procedures. Employee further agrees and understands
that Employee's entitlement to receive the consideration set forth above is
conditioned upon Employee's execution of this Agreement and compliance with the
terms of this Agreement.
12. Severability. The provisions of this Agreement are severable,
and if any part of it is found to be unenforceable, the other paragraphs shall
remain fully valid and enforceable. This Agreement shall survive the termination
of any arrangements contained herein.
13. Confidentiality; Professionalism. Employee represents and
agrees that Employee will keep the terms, amount, value, and nature of
consideration paid to Employee, and the fact of this Agreement completely
confidential, and that Employee will not hereafter disclose any information
concerning this Agreement to anyone other than Employee's immediate family and
professional representatives who will be informed of and bound by this
confidentiality clause.
Employee agrees that Employee will not make or issue, or procure any
person, firm or entity to make or issue, any statement in any form concerning
the Company, Employee's employment relationship or the termination of Employee's
employment relationship with the Company to any person or entity if such
statement is harmful to or disparaging of the Company, its affiliates or any of
their employees, officers, directors, agents or representatives.
14. Complete Release. As a material inducement to the Company to
enter into this Separation Agreement and General Release, Employee hereby
irrevocably and unconditionally releases, acquits and forever discharges the
Company and each of the Company's owners, stockholders, predecessors,
successors, assigns, agents, directors, officers, employees, representatives,
attorneys, parent companies, divisions, subsidiaries, affiliates (and agents,
directors, officers, employees, representatives and attorneys of such parent
companies, divisions, subsidiaries and affiliates), and all persons acting by,
through, under or in concert with any of them (collectively "Releasees"), or any
of them, from any and all charges, complaints, claims, liabilities, obligations,
promises, agreements, controversies, damages, actions, causes of action, suits,
rights, demands, costs, losses, debts, and expenses of any nature whatsoever,
known or unknown, suspected or unsuspected, including, but not limited to,
rights arising out of alleged violations or breaches of any contracts, express
or implied, or any tort, or any legal restrictions on the Company's right to
terminate employees, or any federal, state or other governmental statute,
regulation, or ordinance, including,
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without limitation: (1) Title VII of the Civil Rights Act of 1964, as amended by
the Civil Rights Act of 1991, (race, color, religion, sex, and national origin
discrimination); (2) the Americans with Disabilities Act (disability
discrimination); (3) 42 U.S.C. ss. 1981 (discrimination); (4) the Age
Discrimination in Employment Act; (5) the Older Workers Benefit Protection Act;
(6) the Equal Pay Act; (7) the Employee Retirement Income Security Act
("ERISA"); (8) Section 503 of the Rehabilitation Act of 1973; (9) the False
Claims Act (including the qui tam provision thereof); (10) the Occupational
Safety and Health Act; (11) the Consolidated Omnibus Budget Reconciliation Act
of 1986; (12) the Worker Adjustment and Retraining Notification Act; (13)
intentional or negligent infliction of emotional distress or "outrage"; (14)
defamation; (15) interference with employment; (16) wrongful discharge; (17)
invasion of privacy; (18) the Georgia Fair Employment Practices Statutes
(Section 45-19-29 et seq of the Georgia Statutes); (19) the Georgia Equal
Employment for Persons with Disabilities Statute (Section 34-6A-4 et seq of the
Georgia Statutes); (20) The Georgia Sex Discrimination in Employment Statute
(Section 34-5-3 of the Georgia Statues); (21) Section 31-8-87 of the Georgia
Statutes; and (22) all applicable Georgia laws ("Claim" or "Claims"), which
Employee now has, owns or holds, or claims to have, own or hold, or which
Employee any time heretofore had, owned or held, or claimed to have, owned or
held, against each or any of the Releasees at any time up to and including the
Effective Date of this Agreement.
The Company releases the Employee of all claims against the Employee of
which it is or should be aware as of the date this Agreement is executed.
15. No Knowledge of Illegal Activity. Employee acknowledges that
she has no knowledge of any actions or inactions by any of the Releasees or by
Employee that Employee believes could possibly constitute a basis for a claimed
violation of any federal, state, or local law, any common law or any rule
promulgated by an administrative body.
16. Age Discrimination In Employment Act. Employee hereby
acknowledges and agrees that this Agreement and the termination of Employee's
employment and all actions taken in connection therewith are in compliance with
the Age Discrimination in Employment Act and the Older Workers Benefit
Protection Act and that the releases set forth in Section 15 hereof shall be
applicable, without limitation, to any claims brought under these Acts. Employee
further acknowledges and agrees that:
a. the release given by Employee in this Agreement is
given solely in exchange for the consideration set forth in Section 4 of this
Agreement and such consideration is in addition to anything of value which
Employee was entitled to receive prior to entering into this Agreement;
b. by entering into this Agreement, Employee does not
waive rights or claims that may arise after the date this Agreement is executed;
c. Employee has been advised to consult an attorney
prior to entering into this Agreement, and this provision of this Agreement
satisfies the requirement of the Older Workers Benefit Protection Act that
Employee be so advised in writing;
d. Employee has been offered twenty-one (21) days from
receipt of this Separation Agreement and General Release within which to
consider this Agreement; and
e. For a period of seven (7) days following Employee's
execution of this Agreement, Employee or the Company may revoke this Agreement
and this Agreement shall not become effective or enforceable until such seven
(7) day period has expired.
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17. Indemnification. As a further material inducement to the
Employee to enter into this Agreement, Company hereby agrees to indemnify and
hold Employee harmless from and against any and all loss, costs, damages, or
expenses, including, without limitation, attorneys' fees incurred by Employee in
the event Employee is or is threatened to, or becomes a party or witness or
other participant in a claim arising out of any event, occurrence or
circumstance related to the fact that Employee is or was a director or officer
of the Company and its subsidiaries, its successors or affiliates, or was
serving at the request of the Company as its agent or consultant.
18. No Other Representations. Employee represents and acknowledges
that in executing this Agreement Employee does not rely, and has not relied,
upon any representation or statement not set forth herein made by any of the
Releasees or by any of the Releasees' agents, representatives, or attorneys with
regard to the subject matter, basis or effect of this Agreement or otherwise.
19. Sole and Entire Agreement. This Agreement sets forth the
entire agreement between the parties hereto, and supersedes any and all prior
agreements or understandings between the parties pertaining to the subject
matter hereof.
20. Binding Effect, Assignment. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective heirs,
representatives, successors, transferees and permitted assigns. This Agreement
shall not be assignable by Employee but shall be freely assignable by the
Company.
21. Remedies. Employee agrees that the covenants contained in this
Agreement are of the essence of this Agreement; that each of such covenants is
reasonable and necessary to protect and preserve the business, interests, and
properties of the Company; and that the Company will suffer irreparable loss and
damage should Employee breach any of those covenants. Therefore, Employee agrees
and consents that, in addition to all of the remedies provided at law or in
equity, the Company shall be entitled to a temporary restraining order and
temporary and permanent injunctions to prevent or cure a breach or contemplated
breach of any of those covenants. The existence of any claim, demand, action, or
cause of action of Employee against the Company shall not constitute a defense
the Company's enforcement of any of the covenants or agreements in this
Agreement. In addition to any other remedies, any breach of this Agreement by
the Employee will result in payments to the Employee being immediately
discontinued.
22. Knowledgeable Decision By Employee. Employee represents and
warrants that Employee has read all the terms of this Agreement. Employee
understands the terms of this Agreement and understands that this Agreement
releases forever the Company from any legal action arising from Employee's
relationship with the Company as an Employee, and the termination of such
relationship by the Company. Employee is signing and delivering this Agreement
of his or her own free will in exchange for the consideration to be given to
Employee, which Employee acknowledges and agrees is adequate and satisfactory.
23. Full and Careful Consideration. Please take this Agreement
home and carefully consider all of its provisions before signing it. You may
take up to twenty-one (21) days to decide whether you want to accept and sign
this Agreement. Also, if you sign this Agreement, you and the Company will then
have until the Separation Date, or an additional seven (7) days after you sign
this Agreement, whichever is longer, in which to revoke this Agreement. This
Agreement will not be effective or enforceable, nor will any consideration be
paid, until after the revocation period has
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expired. Again, you are free, and encouraged, to discuss the contents and
advisability of signing this Agreement with an attorney of your choosing.
PLEASE READ CAREFULLY. THIS SEPARATION AGREEMENT AND GENERAL RELEASE
INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAMS.
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DATE EMPLOYEE'S SIGNATURE
___________________________________________
Xxxxx Xxxxxx Xxxxxxx
Mariner Post-Acute Network, Inc.
By:________________________________________
Effective Date of Agreement: _____________________, 200_.
Witness:
___________________________________
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ACKNOWLEDGMENT
I, __________________________________, hereby acknowledge that I was given
twenty-one (21) days to consider the foregoing Agreement and voluntarily chose
to sign the Agreement prior to the expiration of the 21-day period.
EXECUTED this __ day of _______________, 200_ at __________________,
___________________________ .
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Name:
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