Exhibit 10.9
SEPARATION AGREEMENT AND GENERAL RELEASE
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THIS SEPARATION AGREEMENT AND GENERAL RELEASE ("Agreement") is entered
into by and between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ("Executive") and ▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇,
Inc. (the "Company").
Executive and the Company desire to settle fully any and all matters
between them, including, but not limited to, any matters relating to Executive"s
employment with the Company, Executive"s Employment, Confidentiality,
Non-Competition and Severance Agreement with the Company, dated as of January 5,
2000, as amended by Amendment No. 1 To Employment, Confidentiality,
Non-Competition and Severance Agreement, dated as of May 15, 2000, copies of
which are attached hereto and are hereby incorporated in part by reference
herein (collectively, the "Employment Agreement"), and the termination of
Executive"s employment. Therefore, in consideration of the mutual promises set
forth herein and other good and valuable consideration, the receipt and
sufficiency of which is acknowledged, Executive and the Company agree as
follows:
1. Termination of Employment. Executive"s employment with the Company is
terminated effective October 31, 2000 ("Termination Date"). Executive further
waives and releases any claim that he has or may have to reemployment with the
Company, or any of its subsidiary companies, affiliates, successors or assigns.
Notwithstanding the foregoing, following the Termination Date, Executive agrees
to provide the Company with such assistance as it may reasonably request, upon
reasonable notice, in connection with the transition or the office of Chief
Executive Officer from Executive to Executive's successor. The Company shall
reimburse Executive for any reasonable expenses, including travel expenses,
incurred by Executive in connection with providing such assistance.
2. Employment Agreement. Notwithstanding the terms of the Employment
Agreement, including, without limitation, Sections 9, 10 and 11 thereof,
effective with five (5) days following the Effective Date, the Company will
place into escrow pursuant to the terms and conditions of an Escrow Agreement to
be executed among the Company, Executive and LaSalle Bank National Association,
as escrow agent, an aggregate amount equal to $365,000 (the "Termination
Payments") plus all amounts to be paid by the Company pursuant to Section 3
below. The Termination Payments shall be paid to Executive over a period of one
year following the Termination Date (the "Payment Period") in accordance with
the Company's regular bi-monthly payroll schedule, less applicable taxes,
deductions and withholding. Executive agrees to comply with all of his
continuing obligations under the Employment Agreement, including without
limitation paragraphs 14, 15 and 17 of the Employment Agreement.
3. Benefits. During the Payment Period, the Company shall:
(a) To the extent permitted by its then-existing 401(k) Plan, if any,
allow Executive to continue making contributions into such 401(k) Plan, and
make the maximum matching contributions under such 401(k) Plan. To the
extent continued contributions
under the Company's 401(k) Plan are not permitted, the Company will pay to
the Executive an amount equal to the maximum matching contribution under
such 401(k) Plan;
(b) Make available to Executive, subject to the terms and conditions of
the applicable plans, including, without limitation, the eligibility rules,
participation for the Executive and his eligible dependents in the Company-
sponsored employee benefit plans or arrangements available generally to
employees of the Company (but not including stock option, stock purchase or
similar compensatory arrangements) and pay all premiums related thereto;
(c) Notwithstanding anything to the contrary in the Executive's stock
option agreement(s) or certificate(s) or in the stock option plan(s) under
which Executive's stock options were granted, (1) all of Executive's stock
options that were granted on or prior to January 5, 2000 and on April 12,
2000, collectively constituting stock options exercisable for an aggregate
of 141,616 shares of the Company's Class A Common Stock, par value $.001
per share ("Class A Common Stock"), and 42,444 shares of the Company's
Series C Contingent Convertible Preferred Stock, par value $.001 per share,
shall immediately become vested and exercisable on the Termination Date and
be immediately canceled, (2) stock options exercisable to purchase an
aggregate of 46,619 shares of Class A Common Stock, which were granted to
Executive on January 6, 2000, shall vest on the Termination Date, (3)
except as provided under clause (2) above, all of Executive's stock options
granted on January 6, 2000 will cease to vest as of the Termination Date,
and (4) Executive shall have the right to exercise any and all vested stock
options (collectively exercisable to purchase an aggregate of 188,235
shares of Class A Common Stock and 42,444 shares of Series C Contingent
Convertible Preferred Stock) at any time no later than 10 years after the
date of grant of such stock options. Executive and the Company acknowledge
that all of Executive's options that are effected by clause (4) above
shall, notwithstanding anything in the applicable stock option
certificate(s) and related agreement(s) to the contrary, be non-qualified
stock options. Except as modified by the foregoing, Executive agrees that
any and all right to options rights are governed by the stock option
certificate(s) and related agreement(s).
(d) Provide Executive and his spouse with outplacement services in an
amount not to exceed $40,000 in the aggregate, which outplacement services
may, at Executive's election, include use of an office at a location of
Executive's choosing and secretarial assistance arranged by Executive;
provided, however, that if the Company enters into an agreement with
Insearch ▇▇▇▇▇▇▇▇▇.▇▇▇ on or prior to the Termination Date pursuant to
which Insearch ▇▇▇▇▇▇▇▇▇.▇▇▇ provides the Company with a credit for
placement and/or executive search services, Executive will use Insearch
▇▇▇▇▇▇▇▇▇.▇▇▇ for his and his spouse's outplacement services and the value
of services rendered to Executive and/or his spouse by Insearch
▇▇▇▇▇▇▇▇▇.▇▇▇ will count toward the $40,000 aggregate cap on outplacement
services;
(e) Subject to Executive's obligations under Sections 14 and 15 of the
Employment Agreement, allow Executive to retain his personal laptop
computer and cell phone at no cost to Executive; provided that the Company
shall not be obligated to reimburse
Executive for the cost of cellular phone services, phone calls, Internet
access charges or the like; and
(f) Reimburse Executive for legal and tax planning costs and expenses
actually incurred in connection with the negotiation of this Agreement in
an amount not to exceed $5,000.
The Executive will be entitled to continuation coverage under COBRA and the
date of his qualifying event shall be the date on which his Company-sponsored
benefits cease. The payments and benefits described in Sections 2 and 3 of this
Agreement shall be in lieu of and discharge any obligations of the Company to
Executive for compensation, wages, benefits, vacation, pain and suffering, or
any other expectation of remuneration or benefit on the part of Executive,
whether set forth in the Employment Agreement or otherwise. Other than the
obligations set forth in paragraphs 2 and 3, Executive acknowledges that the
Company shall have no other obligations to Executive under this Agreement or the
Employment Agreement. Executive further agrees not to seek any further
compensation or benefits from the Company.
4. Definition of "Restricted Business." The definition of "Restricted
Business" set forth in Section 1(k) of the Employment Agreement is hereby
replaced with the following definition: "Restricted Business" means any business
or division of a business which provides (i) investigative site services in
connection with clinical research in the fields of urology, gastroenterology,
rheumatology, endocrinology, gynecology, outpatient cardiology, neurology and
pulmonology (collectively, the "Therapeutic Areas"), (ii) patient recruitment
services to pharmaceutical companies in the Therapeutic Areas or (iii) an
interactive Internet healthcare information site for consumers."
5. No Authority. Executive understands and agrees that effective on the
Termination Date, Executive is no longer authorized to incur any expenses,
obligations, or liabilities on behalf of the Company.
6. Return of Company Property. Executive agrees to immediately turn over to
the Company (a) a complete copy of any and all files (including, without
limitation, files on the hard drive of the computer referred to in Section 3(d)
above), memoranda, notes, records, reports, photographs, drawings, plans,
papers, or other documents (whether paper or electronic), and (b) all computers
(other than the computer referred to in Section 3(d) above), intellectual
property, and physical or personal property (other than the property referred to
in Section 3(e) above), obtained by Executive during the course of his
employment with the Company, or any of its, subsidiary companies, affiliates,
successors or assigns, and that are the property of the Company, or any of its,
subsidiary companies, affiliates, successors or assigns.
7. Complete Release. (a) As a material inducement to the Company to enter into
this Agreement, and per the terms of paragraph 9(a) of the Employment Agreement,
the Executive hereby forever releases and discharges the Company, its
subsidiaries, owners, affiliates, divisions, stockholders, directors, officers,
members, agents, current and former employees, attorneys, related companies,
predecessors, successors and assigns (collectively "Released Parties"), and each
of them, of and from any and all charges, complaints, claims, or liabilities
(including attorneys" fees and costs actually incurred) of any nature
whatsoever, known or
unknown, suspected or unsuspected, including, but not limited to, rights arising
out of alleged violations of any contracts, express or implied, or any state law
tort claim, or any federal, state, or other governmental statute, regulation, or
ordinance, including, but not limited to, claims under Title VII of the Civil
Rights Act of 1964 or the Age Discrimination in Employment Act, 29 U.S.C.
(S)(S) 621-634, which Executive now has or claims to have, or which Executive at
any time heretofore had or claimed to have, or which Executive at any time
hereinafter may have or claim to have, against each or any of the Released
Parties; provided, however, Executive specifically does not release any rights
under the Age Discrimination in Employment Act arising after the Effective Date
of this Agreement, any claims to enforce this Agreement, or any claims which
Executive is precluded from waiving by operation of law. Executive further
acknowledges that Executive has reviewed and understood the chart on page 7 of
this Agreement, listing those Company executives (by job title and age)
terminated and not terminated as a result of the Company's restructuring.
(b) The Company hereby forever releases and discharges Executive of and
from any and all charges, complaints, claims, or liabilities (including
attorneys" fees and costs actually incurred) of any nature whatsoever, of which
the Company's executive officers, or any of them, has actual knowledge as of the
date of this Agreement, including, but not limited to, rights arising out of
alleged violations of any contracts, express or implied, or any state law tort
claim, or any federal, state, or other governmental statute, regulation, or
ordinance, which the Company now has or claims to have, or which the Company at
any time heretofore had or claimed to have against Executive; provided, however,
that the Company specifically does not release any charges, complaints, claims
or liabilities (including attorneys' fees and costs actually incurred) of any
nature whatsoever of which the Company's executive officers, or any of them, did
not have actual knowledge as of the date of this Agreement.
8. No Claims. (a) Executive represents that Executive has not filed any
complaints, charges, or lawsuits with any local, state, or federal agency or
court against the Company or any of the Released Parties, that Executive will
not do so at any time based on any claim that arose on or before the execution
of this Agreement, and that if any such agency or court assumes jurisdiction of
any such charge, complaint, or lawsuit against the Company or any of the
Released Parties on behalf of Executive, Executive will request such agency or
court to withdraw from the matter.
(b) The Company represents that it has not filed any complaints, charges,
or lawsuits with any local, state, or federal agency or court against Executive,
that the Company will not do so at any time based on any claim that arose on or
before the execution of this Agreement and of which the Company's executive
officers, or any of them, had actual knowledge on or before the execution of
this Agreement, and that if any such agency or court assumes jurisdiction of any
such charge, complaint, or lawsuit against Executive on behalf of the Company,
the Company will request such agency or court to withdraw from the matter.
9. Confidentiality. In addition to the obligations set forth in paragraph 14
of his Employment Agreement, Executive agrees that Executive has maintained and
will continue to maintain as confidential any and all proprietary, confidential
and trade secret information belonging to the Company, or any of its parent
companies, subsidiary companies, affiliates, successors or assigns, including,
but not limited to, any plans, strategies, marketing and sales
information, customer information, cost and pricing information, employee
information, financial information, designs, programs, or any other information
that may not be generally known in the industry.
10. Consultation with Counsel. Executive agrees that Executive fully
understands Executive"s right to discuss all aspects of this Agreement with
Executive"s attorney, that Executive has carefully read and fully understands
all the provisions of this Agreement, and that Executive is knowingly and
voluntarily entering into this Agreement.
11. No Representations. Executive represents and acknowledges that, in signing
this Agreement, Executive does not rely, and has not relied, upon any
representation or statement made by any of the Released Parties or by any of the
Released Parties" agents, representatives, or attorneys with regard to the
subject matter, basis, or effect of this Agreement or otherwise.
12. Acceptance and Revocation. This Agreement was presented to Executive for
review and consideration on September 15, 2000 ("Review Date"). Executive
understands that Executive has forty-five (45) days from the Review Date within
which to decide whether to execute this Agreement and return it to the Company.
If Executive does not return this Agreement to the Company fully executed within
forty-five (45) of the Review Date, any offer implied by the representation of
this Agreement for Executive"s review and consideration is withdrawn in its
entirety at that time. Executive further understands that Executive has seven
(7) days after execution of this Agreement within which to provide the Company
with written notice of revocation of this Agreement ("Revocation Period"). If
said written notice of revocation is not received by the Company by the close of
business on the seventh day following Executive"s signing of this Agreement,
Executive agrees that this Agreement shall be final, binding, and irrevocable.
The executed copy of this Agreement and/or any written notices should be
provided to:
▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
▇▇▇▇ ▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
13. Effective Date. This Agreement shall not become effective in any respect
until the Revocation Period has expired without notice of revocation. In the
absence of Executive"s revocation of this Agreement, the eighth day after
Executive"s signing of this Agreement shall be the "Effective Date" of this
Agreement.
14. Non-Disparagement. Executive agrees not to make any disparaging
or negative comments to any third party regarding, the Company or any of the
Released Parties. The Company's executive officers and directors agree not to
make any disparaging or negative comments to any third party regarding the
Executive; provided, however, that nothing in this Section 14 shall prevent the
Company from taking any action it deems necessary, desirable or appropriate with
respect to any charge, compliant or claim it or any of the Released Parties may
have against Executive of which the Company's executive officers did not have
actual knowledge on the date of this Agreement.
15. No Admissions. This Agreement shall not in any way be construed as an
admission by the Company that it has acted wrongfully or breached any agreement
with respect to Executive or any other person, or an admission of any acts of
discrimination whatsoever against Executive, and the Company specifically
disclaims any liability to or discrimination against Executive, on the part of
itself, its employees, its agents or its affiliates.
16. Insurance. The Company represents that to the extent it maintains its
director and officer insurance coverage, Executive will continue to be covered
thereunder for the period prior to the Termination Date during which he was an
officer of the Company to the same extent currently covered thereby, subject to
the conditions thereof.
17. Executive Breach. Executive agrees that, in the event Executive breaches
any provision of this Agreement, Executive agrees to indemnify the Company and
the Released Parties against all liability, costs and expenses, including
reasonable attorney"s fees, and will reimburse the Company for all payments and
benefits paid to Executive pursuant to this Agreement.
18. Sole and Entire Agreement. The Agreement, including the Employment
Agreement and its obligations set forth in its Paragraphs 14, 15 and 17,
constitutes the entire agreement of the parties, and fully supersedes any and
all prior and contemporaneous agreements or understandings between the parties.
To the extent that any provision of this Agreement conflicts with or contradicts
any provision of the Employment Agreement, this Agreement shall be controlling.
This Agreement may be amended or modified only by an agreement in writing and
signed by both parties.
19. Governing Law. This Agreement shall be in all respects interpreted,
enforced and governed by and under the laws of the State of Illinois, without
regard to the principles of conflicts thereof.
20. 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.
21. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed to be an original, and all of which together shall
constitute one and the same instrument.
PLEASE READ AND CONSIDER THIS AGREEMENT CAREFULLY BEFORE SIGNING IT. THIS
SEPARATION AGREEMENT AND GENERAL RELEASE INCLUDES A RELEASE OF ALL KNOWN AND
UNKNOWN CLAIMS.
Signature: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Date: 10/17/00
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Witnessed: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Date: 10/17/00
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▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: CFO
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Date: 10/17/00
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