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Exhibit
10.37
SEPARATION OF EMPLOYMENT
AGREEMENT
AND GENERAL
RELEASE
THIS SEPARATION OF EMPLOYMENT
AGREEMENT AND GENERAL RELEASE (the “Agreement”) is made
as of this 21 st day
of September, 2007 by and between PharMerica Corporation (the
“Company”) and Mark McCullough (the
“Executive”).
WHEREAS, Executive formerly
was employed as Executive Vice President and Chief Operating
Officer;
WHEREAS, Executive and
Company entered into an Employment Agreement, dated July 11,
2007, (the “Employment Agreement”) which provides for
certain severance benefits in the event that Executive’s
employment is terminated on account of a reason set forth in the
Employment Agreement;
WHEREAS, Executive and the
Company mutually desire to terminate Executive’s employment
on an amicable basis, such termination to be effective
September 21, 2007 (the “Date of Resignation”);
and
WHEREAS, in connection with
the Executive’s resignation of employment, the parties have
agreed to a separation package and the resolution of any and all
disputes between them.
NOW, THEREFORE, IT IS HEREBY
AGREED by and between Executive and the Company as
follows:
1. (a) Executive, for and in
consideration of the commitments of the Company as set forth in
Paragraph 5 of this Agreement, to which Executive acknowledges he
is not otherwise entitled, and intending to be legally bound, does
hereby REMISE, RELEASE AND FOREVER DISCHARGE the Company, its
affiliates, subsidiaries and parents, and its officers, directors,
employees, and agents, and its and their respective successors and
assigns, heirs, executors, and administrators (each, a
“Releasee” and collectively, “Releasees”)
from all causes of action, suits, debts, claims and demands
whatsoever in law or in equity, which Executive ever had, now has,
or hereafter may have, whether known or unknown, or which
Executive’s heirs, executors, or administrators may have, by
reason of any matter, cause or thing whatsoever, from the beginning
of Executive’s employment to the date of this Agreement, and
particularly, but without limitation of the foregoing general
terms, any claims arising from or relating in any way to
Executive’s employment relationship with the Company and/or
its predecessors, subsidiaries or affiliates, the terms and
conditions of that employment relationship, and the termination of
that employment relationship, including, but not limited to, any
claims arising under the Age Discrimination in Employment Act, the
Older Workers Benefit Protection Act (“OWBPA”), Title
VII of The Civil Rights Act of 1964, the Americans with
Disabilities Act, the Family and Medical Leave Act of 1993, the
Employee Retirement Income Security Act of 1974, the Kentucky Civil
Rights Act, any claims for wages, bonuses, stock options,
restricted stock or awards, or any other compensation, and any
other claims under any federal, state or local common law,
statutory, or regulatory provision, now or hereafter recognized,
and any claims for attorneys’ fees and costs. This Agreement
is effective without regard to the legal nature of the claims
raised and without regard to whether any such claims are based upon
tort, equity, implied or express contract or discrimination of any
sort.
(b) To the fullest extent
permitted by law, and subject to the provisions of Paragraph 10
below, Executive represents and affirms that (i) Executive has
not filed or caused to be filed on Executive’s behalf any
claim for relief against the Company or any Releasee and, to the
best of
1
Executive’s knowledge and belief,
no outstanding claims for relief have been filed or asserted
against the Company or any Releasee on Executive’s behalf;
(ii) Executive has not reported any improper, unethical or
illegal conduct or activities to any supervisor, manager,
department head, human resources representative, agent or other
representative of the Company, to any member of the Company’s
legal or compliance departments, or to the ethics hotline, and has
no knowledge of any such improper, unethical or illegal conduct or
activities; and (iii) Executive will not file, commence,
prosecute or participate in any judicial or arbitral action or
proceeding against the Company or any Releasee based upon or
arising out of any act, omission, transaction, occurrence,
contract, claim or event existing or occurring on or before the
date of this Agreement.
(c) Nothing in the Agreement
will be deemed to release the Company from (i) claims solely
to enforce this Agreement, (ii) claims for indemnification
under the Company’s By-Laws, or (iii) claims for payment
or reimbursement pursuant to any employee benefit plan, policy or
arrangement of the Company.
2. Notwithstanding anything in this
Agreement to the contrary, in consideration of the Company’s
agreements as set forth in Paragraph 5 herein, Executive agrees
that he continues to be bound by all the terms and conditions set
forth in Section 8 of the Employment Agreement, entitled
Confidential Information, Non-Solicitation and Non-Competition,
provided that all references in clause (b) of Section 8
to “eighteen months” shall be amended to “fifteen
months”. Executive hereby resigns as an officer and director
of all direct and indirect subsidiaries of the Company.
3. Executive agrees and recognizes that
Executive has permanently and irrevocably severed Executive’s
employment relationship with the Company, that Executive shall not
seek employment with the Company or any affiliated entity at any
time in the future, and that the Company has no obligation to
employ Executive in the future.
4. Executive further agrees that
Executive will not disparage or subvert the Company, or make any
statement reflecting negatively on the Company, its affiliated
corporations or entities, or any of their officers, directors,
employees, agents or representatives, including, but not limited
to, any matters relating to the operation or management of the
Company, Executive’s employment and the termination of
Executive’s employment, irrespective of the truthfulness or
falsity of such statement. The Company agrees that none of its
officers, directors, employees, agents or representatives will
disparage or subvert the Executive, or make any statement
reflecting negatively on the Executive, including, but not limited
to, any matters relating to the Executive’s performance or
the termination of Executive’s employment, irrespective of
the truthfulness or falsity of such statement.
5. In consideration for
Executive’s agreement as set forth herein, the Company agrees
that the Company shall provide the following:
(a) A severance payment, in
the total amount of $450,000, less all applicable deductions and
withholdings, paid in fifteen (15) equal monthly installments,
commencing on October 1, 2007
(b) for the eighteen
(18) month period
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