Exhibit 10.29
EXECUTION COPY
MQ ASSOCIATES, INC.
MEDQUEST, lNC.
4300 NORTH POINT PARKWAY
ALPHARETTA, GEORGIA 30022
April 28, 2005
Gene Venesky
8985 Old Southwick Pass
Alpharetta, Georgia 30022
Mr. Venesky:
Effective immediately (the “
Effective Date ”) and pursuant to this letter
agreement (this “ Separation Agreement ”), you
hereby voluntarily resign as an employee, officer, member and
manager, as applicable, and as a member of the board of directors
and board of managers, as applicable, of MQ Associates, Inc., a
Delaware corporation (the “ Company ”), its
direct and indirect subsidiaries and their respective affiliates.
The Company hereby waives the 90 day notice requirement for such
voluntary resignation under Section 6(b) of the Amended and
Restated Employment Agreement between you and MedQuest, Inc., a
Delaware corporation and wholly-owned subsidiary of the Company
dated as of August 15, 2002 (the “ Employment
Agreement ”).
As of the Effective Date, the
Employment Agreement is terminated, and none of the provisions
thereunder shall survive or be effective after the Effective Date
except for:
(i)
Section 7;
(ii)
Section 8 (specifically
including Section 10.5 of the Recapitalization Agreement,
dated July 16, 2002, as amended, among the Company and the
other parties thereto);
(iii)
Section 9;
(iv)
Section 10;
(v)
Section 11 (except that after
the Effective Date, notices to the Company shall be copied to
O’Melveny & Myers LLP, Times Square Tower, 7 Times
Square, New York, New York 10036, Attention: Ilan S. Nissan,
Esq.);
(vi)
Section 12;
(vii)
Section 13;
(viii)
Section 14; and
(ix)
all definitions in the Employment
Agreement, which appear in the sections of the Employment Agreement
specified in the foregoing clauses (i) through (viii),
in each case, which sections and
definitions (as hereby amended), shall survive such
termination.
Capitalized terms used herein but
not otherwise defined, shall have the respective meanings ascribed
to them in the Employment Agreement. You acknowledge and agree
that, as of the Effective Date, you are not entitled to any Salary,
Bonus, Termination Benefits, continuation of Company benefits or
any other payments, benefits or compensation of any type from the
Company, any of its direct or indirect subsidiaries or any of its
affiliates, whether occurring before or after the Effective Date
and whether under any employment agreement, under applicable law or
otherwise.
1.
a.
You acknowledge and agree that as of
the Effective Date, you do not own or have the right to own any
Capital Stock (as hereinafter defined) of the Company other than
(i) 10,011,750 shares (the “ Owned Common Stock
”) of the Company’s common stock, par value $.001 per
share (the “ Common Stock ”); (ii) 5,250,000
shares (the “ Owned Preferred Stock ”) of the
Company’s Series B Redeemable Preferred Stock, par value
$.001 per share; and (iii) options to purchase 1,144,444 shares of
the Company’s Common Stock (the “ Options
,” together with the Owned Common Stock and the Owned
Preferred Stock, the “ Owned Stock ”). You
hereby acknowledge and agree that you have not sold, transferred,
disposed of, granted any lien, encumbrance or security interest to
any person or entity in any Capital Stock of the Company (including
the Owned Stock) and no person or entity has acquired an interest
therein by law, contract or otherwise. After the Effective Date,
you shall not acquire or own any interest in the Company or any of
its subsidiaries or affiliates, whether in the nature of common
stock, options or warrants for common stock, convertible
indebtedness, capital stock, equity appreciation rights, phantom
stock or similar rights (collectively, “ Capital Stock
”) or any indebtedness of any such entity other than the
Owned Stock held by you as of the date hereof.
b.
You acknowledge and agree that as of
the Effective Date, you have become vested in 228,888 options (the
“ Vested Options ”) to purchase shares of the
Company’s Common Stock. You further acknowledge that,
pursuant to the Company’s 2003 Stock Option Plan (the “
Plan ”) and the applicable option agreements, all
Options (including the Vested Options and options granted to you
which have not vested pursuant to the terms of the applicable
option agreements) automatically and without further notice expired
as of the Effective Date and such Options are no longer
exercisable.
c.
Provided that no liability to the
Company or any of its subsidiaries would arise as a result thereof,
to the extent permitted under the applicable insurance policies and
to the extent such insurance policies are assignable, the Company
or its subsidiaries, as applicable, shall assign to you the
existing life and disability insurance policies that the Company or
its subsidiaries, as applicable, currently maintains for you, with
all costs and any other liabilities for such assignment and
continuation to borne entirely by you.
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2.
The Company hereby permanently
waives any rights that it currently has or may have in the future
to repurchase your Owned Stock pursuant to Section 2.6 of the
Stockholders’ Agreement dated as of August 15, 2002
among you, the Company and the other stockholders signatory thereto
(as amended, the “ Stockholders’ Agreement
”).
3.
a.
You acknowledge and agree (i) to
hereby permanently waive any rights that you currently have or may
have in the future under Section 3.1 of the
Stockholders’ Agreement; (ii) to hereby permanently waive any
rights that you currently have or may have in the future under
Sections 2.4, 2.5(d) and 2.7 of the Stockholders’ Agreement;
(iii) to hereby permanently waive any rights that you currently
have or may have in the future as a Requisite Management
Stockholder, Requisite Management Holder, Principal Management
Holder or Management Stockholder under the Stockholders’
Agreement other than under Section 6.1 and Article VII
thereunder; (iv) that the power of attorney and proxy granted by
you under Section 2.5(a) of the Stockholders’ Agreement
shall be exercisable as set forth in such section without any
notice to you; (v) to execute any and all amendments, waivers or
modifications to the Stockholders’ Agreement (including, but
not limited to, Amendment No. 1 to the Stockholders’
Agreement attached as Annex I hereto, which shall be
executed concurrently with this Separation Agreement), the
Registration Rights Agreement dated as of August 15, 2002
among the Company and the stockholders signatory thereto (as
amended, the “ Registration Rights Agreement ”)
and the Certificate of Incorporation of the Company, so long as
such amendments, waivers or modifications shall not have a material
adverse effect on any material rights that you have thereunder
after the Effective Date; (vi) to hereby permanently waive any
rights that you currently have or may have in the future under
Sections 2, 3 and 4 of the Registration Rights Agreement; (vii) to
hereby permanently waive any rights that you currently have or may
have in the future under Section 5.3(e) of the Certificate of
Incorporation of the Company and (viii) to hereby permanently waive
any rights you currently have or may have in the future under
Section 5.3(c)(iv) of the Certificate of Incorporation of the
Company. You hereby acknowledge and agree that in the event that
the Company issues any Capital Stock in the future, you shall
execute any amendment to the Certificate of Incorporation of the
Company to permit such Capital Stock to be pari passu or senior to
your Owned Stock with regard to all rights including with respect
to liquidation, dividend payments, and otherwise.
b.
You acknowledge and agree (i) to
comply now and at all times with the terms and provisions of this
Separation Agreement, including the release set forth in
Section 6 of this Separation Agreement and any other
agreements between or among you and the Company, its subsidiaries
and/or its affiliates and/or any other parties, each as in effect
from time to time; (ii) to cooperate with the Company and its
representatives in connection with all matters being reviewed or
investigated, from time to time, by the board of directors of the
Company or any committee thereof; (iii) to fulfill and to cause any
of your affiliates that are parties to any agreements with the
Company, its subsidiaries or their affiliates to fulfill, the
obligations of any agreements with the Company, its subsidiaries
and their affiliates and to act in a commercially reasonable manner
in all respects with respect to such agreements and all business
matters related thereto (including, but not limited to if
requested, effecting the renewal of any such agreements on market
terms); (iv) to take no action that in any way disparages or
defames the Company, its subsidiaries or any of their respective
affiliates, or any employee, director, shareholder, member or
partner of the Company, its subsidiaries or any of their
respective
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affiliates, or harms the Company,
its subsidiaries or any of their respective affiliates in any way,
or that is intended to or may cause injury to the relationship
between the Company, its subsidiaries or any of their respective
affiliates, on the one hand, and any current or prospective lessor,
lessee, vendor, supplier, customer, distributor, employee,
consultant, director, shareholder, member or partner or any other
business relation of the Company, its subsidiaries or any of their
respective affiliates, on the other hand; and (v) to not
voluntarily provide or participate in any public statements with
regard to the Company, its subsidiaries, or any of their respective
affiliates. Nothing in this Section 3.b. is intended to
prevent you from making statements or providing information
reasonably and in good faith believed to be truthful or accurate
when required by order of a court or other body having
jurisdiction, or as otherwise may be required by law or legal
process or regulations of any government agency (including the
Securities and Exchange Commission).
c.
The B
