EXHIBIT 10.35
GENERAL RELEASE
(PLEASE READ CAREFULLY. THIS GENERAL RELEASE HAS IMPORTANT LEGAL
CONSEQUENCES.)
This General Release (this “
Release ”) is between National Medical Health
Card Systems, Inc. (“ Company ”) and Bill
Masters (“ Employee ”) and is a complete,
final and binding settlement of all claims and potential claims, if
any, with respect to their employment relationship. Employee and
the Company may sometimes be referred to collectively as the
“ Parties .”
WHEREAS, the Company and Employee
were parties to an Employment Agreement dated on or about
October 4, 2004 (the “ Employment
Agreement ”); and
WHEREAS, the Company and Employee
were parties to a letter dated November 28, 2005 (the “
Severance Letter ”); and
WHEREAS, the Company and Employee are
parties to a Consulting Agreement and Departure Agreement and
General Release (the “ Departure Agreement
”); and
WHEREAS, the Company and Employee
have agreed on certain terms and conditions regarding the
termination of Employee’s employment under the Departure
Agreement; and
WHEREAS, the Company’s
obligation to pay Employee severance compensation as contemplated
in the Departure Agreement is conditioned upon the execution and
delivery (without revocation) of this Release by Employee;
NOW,
THEREFORE, in consideration of the mutual promises and covenants
set forth herein, be it agreed as follows:
1. As of June 28, 2007,
Employee’s employment relationship as a consultant with the
Company will terminate (the “ Consulting Period
Termination Date ”). This Release has been presented
to Employee on or before the Consulting Period Termination Date and
will become effective seven (7) days (the “Effective
Date” ) after the execution of this Release by
the Employee (the “Execution Date”
).
2. For purposes of the National
Medical Health Card Systems, Inc. 1999 Stock Option Plan, as
amended (the “Stock Option Plan” ), and
the National Medical Health Card Systems, Inc. Amended and Restated
2000 Restricted Stock Grant Plan (the “Restricted Stock
Plan” ), the termination of Employee’s
employment will be considered as an involuntary termination without
cause. Accordingly, under the terms of the Stock Option Plan,
Employee will have 90 days following the Termination Date to
exercise any of his vested options. The Parties acknowledge
that, on the Termination Date, Employee will forfeit and have no
further right, title or interest in or with respect to, any and all
non-vested options, shares of restricted stock and
restricted stock unit awards held by Employee under the Stock
Option Plan and/or the Company’s Restricted Stock Plan.
Employee affirms the provision of any Restricted Stock
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Agreement that the Company shall have the right to instruct the
Company’s transfer agent to transfer any unvested restricted
stock to the Company.
3. Release Provisions.
(a) In consideration for the
Company’s payments to Employee as set forth in the Departure
Agreement, and for other good and valuable consideration, as and
for Employee’s complete release of all statutory, contract,
tort and all other claims against the Company and each of its
current and former owners (including, without limitation, New
Mountain Capital, L.L.C., New Mountain Partners, L.P., New Mountain
Affiliated Investors, L.P., and their respective affiliates),
predecessors, assigns, employees, representatives, attorneys,
benefit plans, insurers, parent companies, divisions, subsidiaries,
affiliates, directors, managers, partners, members, and officers,
including any and all persons acting by, through, or under or in
concert with any of them (collectively “
Releasees ”), Employee hereby releases and
forever discharges the Releasees from any all actions, causes of
action, suits, dues, sums of money, reckonings, covenants,
contracts, bonuses, controversies, agreements, claims, promises,
charges, obligations, complaints and demands whatsoever in law or
equity, which Employee (and Employee’s heirs, executors,
administrators, successors and/or assigns) may now have or
hereafter can, shall, may, or may have had for, upon, or by reason
of any matter, cause or actual or alleged act, omission,
transaction, practice, conduct, occurrence, or other matter up to
and including the execution of this Release by the Employee,
including without limitation, any claim arising out of or relating
to the Employee’s employment by the Company and each of its
subsidiaries and affiliated entities, and any and all obligations
and liabilities of the Company under the Employment Agreement,
Departure Agreement and Severance Letter or any other agreement
between the Employee and any of the Releasees, and the ownership,
acquisition, offer or sale of, or rights to any equity interest, or
any option to purchase or acquire any equity interest in the
Company, excepting only the rights and obligations (i) created
by this Release; (ii) that may exist under (A) any
indemnification agreement or the Company’s Certificate of
Incorporation and Bylaws, as amended, to indemnify Employee or
(B) the Company’s D&O insurance coverage;
(iii) Employee’s rights under state worker’s
compensation laws (for occupational illness or injury only);
(iv) Employee’s vested rights under the Company’s
health, dental, pharmacy and 401(k) benefit plans and (v) to
receive payments under paragraph 4 of the Departure
Agreement.
(b) Without limiting the generality
of the foregoing, this Release is intended to and shall release
Releasees from any and all claims, whether known or unknown, which
Employee ever had, has, or may have against any Releasee with
respect to Employee’s employment, the terms, benefits, and
conditions of that employment, and/or the termination thereof,
including without limitation those arising under the Civil Rights
Act of 1866, 42 U.S.C.A. Section 1981, the Civil Rights Act of
1964, as amended, 42 U.S.C.A. Section 2000e, et seq., the Age
Discrimination in Employment Act of 1967, as amended, 29 U.S.C.A.
Section 621 et seq., the National Labor Relations Act, 29
U.S.C.A. Section 151 et seq., the Fair Labor Standards Act, 29
U.S.C.A. Section 201 et seq., the Labor Management Reporting
and Disclosure Act of 1959, as amended, 29 U.S.C.A.
Section 401 et seq., the Americans with Disabilities Act, 42
U.S.C.A.
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Section 12101, et. Seq., the Constitution and the laws of the
United States and the State of New York, including specifically,
New York’s Human Rights Law, Executive Law Section 290
et seq., or any other federal, state, or local human rights, civil
rights, wage-hour, pension, or labor laws, rules and/or regulation,
public policy, contract or tort law; and any and all claims arising
out of the ownership, acquisition, offer or sale of, or rights to
any equity interest, or relating to any option to purchase or
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