Exhibit 10.36
SEPARATION AND CONSULTING
AGREEMENT AND GENERAL RELEASE
This Separation and Consulting
Agreement and General Release (hereafter “Agreement”)
is entered into as of this 3rd day of February, 2006, between
Russell D. Phillips, Jr. (the “Executive”), and
Alliance Imaging, Inc. (the “Company”), effective
eight days after the Executive’s signature (the
“Effective Date”), unless he revokes his acceptance as
provided in Paragraph 6(c), below.
WHEREAS, the Executive was the
General Counsel of the Company, pursuant to an Employment Agreement
entered into as of April 29, 1998 (the “Employment
Agreement”);
WHEREAS, the Executive tendered his
resignation, and the Company accepted such resignation effective as
of February 3, 2006 (the “Resignation
Date”);
WHEREAS, the Executive was granted
options to purchase common stock of the Company in the amounts and
at the strike prices reflected on Exhibit A hereto;
WHEREAS, the Company wishes to
secure certain consulting services from the Executive following the
Resignation Date, and the Executive is willing to provide such
services, pursuant to terms set forth in this Agreement;
WHEREAS, the Company and the
Executive now wish to document the termination of their employment
relationship and fully and finally to resolve all matters between
them;
THEREFORE, in exchange for the good
and valuable consideration set forth herein, the adequacy of which
is specifically acknowledged, the Executive and the Company hereby
agree as follows:
1.
Resignation of
Employment . The Executive hereby
confirms his resignation of all positions that the Executive held
as an officer of the Company and all subsidiaries of the Company,
all positions that the Executive held on the Board of Directors of
the Company and on the Boards of Directors of any of the
Company’s subsidiaries, all positions held with respect to
employee benefit plans of the Company and its subsidiaries
(including membership on the Administrative Committee of the
Company’s 401(k) plan) and all Board of Directors and similar
positions with the Company’s and its subsidiaries’
joint venture entities (whether consolidated or unconsolidated);
and the Company, on behalf of itself and such other entities,
confirms its acceptance of such resignations, effective as of the
Resignation Date. The Executive further confirms his
resignation of his employment with the Company effective on the
Resignation Date.
2.
Payment of Accrued Wages and
Expenses . On or
before the Resignation Date, the Company shall pay to the Executive
an amount equal to all accrued wages through the Resignation Date,
including accrued vacation, less applicable withholding.
3.
Consulting Services
. For the period commencing on
the Resignation Date and ending December 31, 2006 (the
“Consulting Period”), the Executive shall make himself
available
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to the Company, as the Company may request,
pursuant to the terms of this Paragraph 3, as a
consultant.
(a)
The Executive shall provide up to
five (5) hours per month of consulting services, consisting of
responding by telephone, at such times as do not interfere with the
Executive’s other work duties, to factual questions and
questions related to legal advice previously provided by the
Executive to the Company (the “Consulting
Services”). The Company shall not request that the
Executive provide any new legal advice. Any consulting
services in excess of five (5) hours per month shall be
provided at a rate of $250 (two hundred fifty dollars) per hour, at
such dates and times as are mutually agreed upon by the Executive
and the Company.
(b)
Consulting Services may be requested
by only the following Company officers: (i) the Chairman
and Chief Executive Officer, (ii) the President and Chief
Operating Officer, (iii) the interim General Counsel or
General Counsel, (iv) the Chief Financial Officer, and
(v) the Controller.
4.
Payments to the
Executive . In
consideration of the Executive’s services as a consultant,
for the release provided by the Executive herein, and in full
satisfaction of all claims that the Executive may have for bonus
compensation for the year ending December 31, 2005, the
Company shall pay to the Executive $75,000 (seventy-five thousand
dollars), less all required taxes and other withholding authorized
by the Executive, in three equal installments of $25,000
(twenty-five thousand dollars). The first installment shall
be paid no later than five (5) days following the Effective
Date. The second installment shall be paid three
(3) months after payment of the initial installment. The
final installment shall be paid six (6) months after payment
of the initial installment. In addition, the Company shall
reimburse the Executive within five (5) days following his
submission of an invoice for legal services in connection with his
separation from the Company and this Agreement; provided ,
that the Company’s reimbursement obligation pursuant to this
sentence shall be capped at $5,000.
5.
Stock Options
. By grants dated
March 1, 1999, November 2, 1999, January 16, 2002,
January 15, 2003, January 5, 2004 and January 3,
2005, the Executive was granted options to purchase 207,000 (two
hundred seven thousand) shares of Company common stock. As of
the Resignation Date, the Executive will be vested in options to
purchase 146,000 (one hundred forty-six thousand shares) of Company
common stock (the “Vested Options”), at the strike
prices set forth in the Notices of Grant, the applicable Stock
Option Agreements, and Exhibit A to this Agreement. The
Executive shall have 90 (ninety) days following the Resignation
Date in which to exercise his Vested Options. All Vested
Options not exercised within 90 (ninety) days of the Resignation
Date, and all options granted to the Executive, but not vested as
of the Resignation Date, shall expire by their terms. Except
as expressly provided herein, the Executive’s rights with
respect to the stock options granted to him shall be governed by
the terms of the application Stock Options Agreements and Stock
Option Plans. The Executive covenants that his sale of shares
of Company common stock shall be made in accordance with all
applicable federal and state securities laws.
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6.
General Release of Claims by the
Executive .
(a)
The Executive, on behalf of himself
and his executors, heirs, administrators, representatives and
assigns, hereby agrees to release and forever discharge the Company
and all predecessors, successors and their respective parent
corporations, affiliates, related, and/or subsidiary entities, and
all of their past and present investors, directors, shareholders,
officers, general or limited partners, employees, attorneys, agents
and representatives, and employee benefit plans in which the
Executive is or has been a participant by virtue of his employment
by the Company, from any and all claims, debts, demands, accounts,
judgments, rights, causes of action, equitable relief, damages,
costs, charges, complaints, obligations, promises, agreements,
controversies, suits, expenses, compensation, responsibility and
liability of every kind and character whatsoever (including
attorneys’ fees and costs), whether in law or equity, known
or unknown, asserted or unasserted, suspected or unsuspected
(collectively, “Claims”), which the Executive has or
may have had against such entities based on any events or
circumstances arising or occurring on or prior to the date hereof
or on or prior to the Resignation Date, arising directly or
indirectly out of, relating to, or in any other way involving in
any manner whatsoever the Executive’s employment by the
Company or the separation thereof, and any and all claims arising
under federal, state, or local laws relating to employment,
including without limitation claims of wrongful discharge, breach
of express or implied contract, fraud, misrepresentation,
defamation, or liability in tort, claims of any kind that may be
brought in any court or administrative agency, any claims arising
under Title VII of the Civil Rights Act of 1964, the Age
Discrimination in Employment Act, the Americans with Disabilities
Act, the Older Workers Benefit Protection Act, the Fair Labor
Standards Act, the Employee Retirement Income Security Act, the
Family and Medical Leave Act, and similar state or local statutes,
ordinances, and regulations.
Notwithstanding the generality of
the foregoing, the Executive does not release the following claims
and rights:
(1)
Claims for unemployment compensation
or any state disability insurance benefits pursuant to the terms of
applicable state law;
(2)
Claims to continued participation in
certain of the Company’s group benefit plans pursuant to the
terms and conditions of the federal law known as COBRA;
(3)
Claims to any benefit entitlements
vested as the date of separation of employment, pursuant to
writt
