Exhibit 10.1
SEPARATION AGREEMENT AND GENERAL RELEASE
This
Separation Agreement and General Release (the “
Agreement ”),
is entered into on this 15th day of May, 2007 by and between
Comprehensive Health Management, Inc., a Florida corporation, on
behalf of itself and any of its affiliates, parent companies or
subsidiaries (collectively the “
Company ”),
and Imtiaz Sattaur, an individual
(“
Executive ”).
WHEREAS,
Executive entered into a Restrictive Covenant Agreement on
December 12, 2003 (the “
Restrictive Covenant Agreement
”) with the Company which generally prohibits Executive, for
a one year period, from (1) accepting employment with a competitor;
(2) soliciting, hiring or recruiting employees of the Company; (3)
requesting or advising any provider, member or agent of the Company
to withdraw, curtail, alter, modify or cancel its dealings with the
Company; and (4) disparaging the Company at any time after the
termination of his employment;
WHEREAS,
Executive entered into a Confidentiality Agreement with the
Company on December 12, 2003 (the “
Confidentiality Agreement ”)
which (1) obligates Executive to return all Company property and
materials and any copies thereof, whether in electronic or hard
copy form; and (2) prohibits Executive from ever using or
disclosing any confidential information of the
Company;
WHEREAS,
Executive entered into numerous stock option agreements and
restricted stock agreements (the “
Equity Agreements ”)
during his employment which required Executive, in exchange for the
right to vest and exercise valuable stock options and shares of
restricted stock, to agree to certain covenants including but not
limited to the commitment not to compete with the Company for a
period of up to one year after his termination of
employment;
WHEREAS,
the parties have agreed to resolve certain matters related to
Executive’s termination of service and to ensure that
Executive complies with his duties and obligations to the
Company;
WHEREAS,
the Company wishes to provide certain termination
consideration, in exchange for Executive’s covenants
contained in this Agreement;
WHEREAS,
Executive represents and warrants that he has not engaged in
any action which would violate his existing commitments
regarding non-solicitation and recruitment of Company
employees as reflected in the Restrictive Covenant Agreement;
and
WHEREAS,
Executive and the Company would like to formalize their
agreement regarding the termination of their
relationships.
NOW,
THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, which covenants and
agreements constitute good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1
.
Unconditional and Full General Release of All Claims
.
In exchange for the financial consideration set forth in Section 2
below, Executive on his behalf and on behalf of his agents, heirs,
administrators, executors, attorneys and assigns, and anyone acting
or claiming on each of their respective behalves, hereby covenants
never to sue, releases, waives, acquits, and forever discharges the
Company, its divisions, subsidiaries, affiliates, parents, related
entities, and their respective past or present employees, officers,
directors, stockholders, partners, investors, executives, managers,
agents, attorneys, representatives, successors and assigns, and
anyone acting on their joint or several behalf (collectively, the
“
Releasees ”),
from any and all claims, actions, causes of action, demands,
damages, suits in equity, costs, expenses, liabilities, or other
losses, of any kind whatsoever, whether known or unknown, which
exist or may exist from the beginning of time up to and including
the date of Executive’s execution of this Agreement or which
in any way arise from, grow out of, or are related to events or
circumstances that occurred on or prior to the date of
Executive’s execution of this Agreement, including but not
limited to any matter related to Executive’s employment with
the Company or the termination thereof. By way of example only and
without limiting the immediately preceding sentence, as used herein
the terms “claims,” “causes of action” and
“demands” shall include, and Executive agrees that
neither Executive nor Executive’s representative(s) shall
file, or cause to be filed, a charge, complaint, lawsuit, or any
other claim against the Releasees with respect to, (a) any
federal, state, or local employment law or statute, including, but
not limited to Title VII of the Civil Rights Act(s) of 1964, as
amended, the Americans with Disabilities Act, the Age
Discrimination in Employment Act, the Older Workers’ Benefit
Protection Act, the Family and Medical Leave Act, the Employee
Retirement Income Security Act or Chapters 448 or 760 of the
Florida Statutes, or (b) any claim based on the existence or
breach of oral or written contracts of employment, the negligence
of any Releasee, negligent or intentional misrepresentations,
promissory estoppel, interference with contract or employment,
defamation or damage to business or personal reputation, assault
and battery, negligent or intentional infliction of emotional
distress, unlawful discharge in violation of public policy,
discrimination, retaliation, wrongful discharge, sexual harassment,
whistleblowing, breach of implied covenant of good faith, fraud,
stock fraud, equity, tort, intellectual property, personal injury,
spoliation of evidence, wage and hour law, statute or common law,
claims for severance pay, claims related to equity compensation
and/or fringe benefits, claims for attorneys’ fees, vacation
pay, debts, accounts, compensatory damages, punitive or exemplary
damages or liquidated damages. Notwithstanding the foregoing,
Executive shall not be deemed to have released any of the following
claims: (i) claims for indemnity or contribution or claims for
coverage under any D&O insurance policies maintained by the
Company or its subsidiaries, in each case, in respect of claims
asserted against Executive in his capacity as an employee or
officer of the Company or its subsidiaries, (ii) claims for vested
retirement benefits or continued welfare coverage, (iii) claims
based on events occurring after this agreement is executed by
Executive or (iv) claims for payments from the Escrow (as defined
below) in accordance with the terms of this Agreement and the
Escrow Agreement (as defined below).
2
.
Financial Consideration .
(a)
In
exchange for Executive’s commitments as outlined in this
Agreement, the Company shall provide to Executive a lump-sum
separation payment in the amount of $135,000, less all
applicable withholding taxes and will reimburse Executive for
the monthly premium costs incurred by Executive during the 12
month period commencing May 1, 2007 in connection with
continuing the health insurance coverage of Executive and his
eligible dependents pursuant to Section 4980B of the Internal
Revenue Code of 1986, as amended. The Company shall make such
payment to Executive within ten days of the later of (i)
the
Effective Date or
(ii) the date of execution of this Agreement by Executive.
Executive shall not accrue or be eligible for any salary, pay,
benefits, or other consideration from the Company other than as
outlined herein. Executive acknowledges and agrees that Executive
is not otherwise entitled to any severance pay.
(b)
Executive
acknowledges that, absent this Agreement, Executive has no
legal, contractual or other entitlement to the consideration
set forth in this Section 2 and that such consideration
constitutes valid and sufficient consideration for
Executive’s release of claims and other obligations set
forth in this Agreement.
3
.
Severance of Employment .
Pursuant to this Agreement, Executive agrees and recognizes that
Executive voluntarily resigned his employment relationship with the
Company on April 6, 2007 (the “
Separation Date ”).
4.
Acceptance of Agreement; Revocation .
This Agreement was received by Executive on April 6, 2007.
Executive may accept this Agreement by returning a signed original
to the Company. This Agreement shall be withdrawn if not accepted
as provided in the previous sentence on or before May 18, 2007.
Executive shall have seven days after signing this Agreement to
revoke it by delivering written confirmation of revocation to the
Company within such seven day period. This Agreement will not
become effective until the revocation period has expired without
revocation of this Agreement by Executive (the “
Effective Date ”).
5.
Future Employment .
Executive agrees that Executive will not seek reinstatement or
apply for future employment with the Company or any of its present
or future affiliates.
6.
Non-Competition; Non-Solicitation .
(a)
Executive
agrees that he will abide by all covenants he has previously
agreed to observe, including but not limited to the Covenants
(as hereinafter defined).
(b)
Executive
agrees that, to the extent Executive intends to accept
employment with, or provide consulting or other services to,
any entity that is engaged, directly, indirectly or through an
affiliate, in the healthcare industry (the “
Employer ”)
during the Restricted Period (as hereinafter defined), Executive
shall: (1) provide copies to the Employer of the Covenants prior to
accepting employment with, or providing services to, the Employer;
(2) provide reasonable notice to the Company (no less than one
month prior to assuming any employment responsibilities with, or
providing services to, the Employer) of Executive’s intent to
provide employment or other services of any kind; (3) provide
information reasonably satisfactory to the Company regarding the
nature of the work Executive intends to perform for the Employer
and the nature of the business of the Employer and its affiliates
to enable the Company to make a reasoned determination as to
whether Executive’s services will violate any of the
Covenants; (4) provide monthly certifications during the Restricted
Period that Executive’s duties and responsibilities with the
Employer are consistent with those described in clause (3) above
and otherwise do not violate any of the Covenants; and (4) obtain
from the Employer monthly certifications during the Restricted
Period that are addressed directly to the Company that state that
Executive’s duties and responsibilities with the Employer are
consistent with those described in clause (3) above and otherwise
do not violate any of the Covenants.
7.
Confidential Information and Return of Company Property
Executive
has returned any and all Company property, including but not
limited to laptop computer, blackberry, cell phone and any other
equipment provided by the Company to Executiv
