EXHIBIT 10.3
AGREEMENT
THIS AGREEMENT (this "Agreement") is entered into on October 18, 1999 by and by
and between John E. King ("Mr. King") and Total Renal Care Holdings, Inc., a
Delaware corporation (the "Company").
RECITALS:
A. Mr. King has tendered his resignation as an employee and as an officer of
the Company and all of its subsidiaries and affiliated entities effective as of
the close of business on July 16, 1999 (the "Effective Date").
B. The Company and Mr. King desire to provide for certain payments in
connection with his resignation and to provide for certain other agreements
between them as set forth herein.
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing recitals and the covenants
contained herein, the parties agree as follows:
1.Confirmation of Resignation. Mr. King hereby confirms his resignation as an
employee and as an officer of the Company and all of its subsidiaries and
affiliated entities effective as of the Effective Date.
2.Severance Pay; Termination of Benefits. On January 3, 2000, the Company shall
pay to Mr. King a severance payment equal to One Hundred and Eighty Thousand
Dollars and No Cents ($180,000.00) in one lump sum payment, subject to all
required federal, state and local tax and other withholdings. Mr. King
acknowledges and agrees that, except for certain unpaid expense reimbursements
provided for in Section 4 below, he has received all salary and other payments
of any kind to which he was entitled through the Effective Date, including,
without limitation, all accrued vacation pay and similar payments to which he
was entitled. From and after the Effective Date (including during the
Consulting Period, as such term is defined in Section 5(b)), Mr. King shall not
be entitled to participate in any of the Company's employee benefit plans,
including but not limited to its 401(k) plan and its health, disability and
life insurance programs, except to the extent required by law (e.g., pursuant
to COBRA).
3.Termination of Employment Agreement. The Company and Mr. King acknowledge and
agree that, effective as of the Effective Date, all of their respective rights
and obligations under that certain Employment Agreement effective as of March
2, 1998, between the Company and Mr. King (the "Employment Agreement"), shall
be deemed to have terminated and to be of no further force or effect; provided,
however, that the amendment of the stock options held by Mr. King set forth in
clause (i) of Section 6.1 of the Employment Agreement (i.e., the amendment of
such stock options to permit the payment of the exercise price by the delivery
of shares of Common Stock of the Company held by Mr. King) shall not terminate
and shall continue in full force and effect.
4.Expense Reimbursement. Notwithstanding any other provision of this Agreement,
Mr. King may submit requests for reimbursement of business related expenses for
which he may be entitled to reimbursement pursuant to any Company policy;
provided, however, that any and all such reimbursement requests must be
submitted no later than October 29,1999 in order to be considered for
reimbursement.
5.Consulting and Other Services.
(a) From and after the Effective Date through August 18, 1999 (the "Initial
Consulting Period"), Mr. King served as a consultant to the Chief Executive
Officer of the Company (the "CEO") and the Board of Directors on a full-
time, exclusive basis and received compensation for such services at the
rate of Five Thousand Dollars ($5,000) per week (pro-rated for any partial
weeks).
(b) From September 13, 1999 through the first to occur of (i) December 31,
1999 and (ii) one week after the Company hires a Chief Financial Officer
(such period, together with the Initial Consulting Period
is referred to herein as the "Consulting Period"), Mr. King shall serve as
a consultant to the Chief Executive Officer of the Company or the Interim
Chief Executive Officer of the Company (the "CEO") and the Board of
Directors on an as-needed, non-exclusive basis on the terms set forth in
this Section 5(b). For such consulting services, Mr. King shall be
compensated at the rate of One Thousand Dollars ($1,000) per day (subject
to pro rata reduction for partial days, based on an eight hour day), such
payments to be made in accordance with the Company's regular payroll
schedule. In no event shall Mr. King be required to provide consulting
services during such period in excess of eighty (80) hours per month.
Notwithstanding the foregoing, in the event Mr. King accepts full-time
employment with another company or organization during this period, the
Company shall not request that he perform consulting services hereunder
that would interfere with his ability to perform his obligations as an
employee of such company or organization.
(c) The Company shall promptly reimburse Mr. King, upon receipt of proper
documentation, for such reasonable out-of-pocket expenses incurred by him
in providing consulting services hereunder as may be approved by the CEO.
Except as expressly provided herein, Mr. King shall not be entitled to
receive any additional compensation or benefits from the Company for
providing consulting services as provided herein.
(d) Any consulting services provided by Mr. King hereunder shall be
provided by Mr. King as an independent contractor and not as an employee of
the Company, and nothing contained herein shall be construed to create a
continuing employment relationship between Mr. King and the Company. Except
as otherwise expressly authorized by the Board of Directors of the Company,
Mr. King shall have no power hereunder to act in the name of or on behalf
of the Company or in any way to bind the Company in any regard. Mr. King
shall indemnify and hold the Company harmless against any claims, losses,
damages, liabilities, costs or expenses, including attorneys' fees, arising
out of any violation of the restrictions on his authority set forth in this
Agreement.
(e) Nothing in this Section 5 shall be construed to supersede or replace
Mr. King's obligation pursuant to Section 4 of the Employment Agreement
with the Company to provide up to one hundred and twenty (120) hours per
year of consulting services during the two year period following the
Effective Date. It is the understanding of the parties Mr. King shall be
obligated to provide such consulting services beginning after the
expiration of the Consulting Period and ending on the second anniversary of
the Effective Date.
6.Amendment of Stock Options. Pursuant to authorization of the Board of
Directors of the Company, all stock options held by Mr. King to purchase common
stock of the Company (each, a "Stock Option") are hereby amended to (i) provide
that they shall continue to vest for one (1) year following the Effective Date
in the same manner as if Mr. King were employed by the Company during such
period, (ii) extend the exercise period of that portion of each Stock Option
that was vested as of July 19, 1999 such that Mr. King may exercise such Stock
Option to the extent vested as of July 19, 1999 at any time during the one year
period ending on the first anniversary of the Effective Date, (iii) provide
that, with respect to any portion of any Stock Option which vests during the
one year period ending on the first anniversary of the Effective Date, Mr. King
may, after the date on which such Stock Option vests, exercise such portion of
such Stock Option during the period provided for in such Stock Option for the
exercise of the vested portion of such Stock Option following a termination of
employment without cause (as if the date on which such Stock Option vests were
the effective date of such termination without cause), and (iv) provide that,
upon the consummation of a Change of Control (as such term was defined in
Section 3.6(a) of the Employment Agreement) at any time during the one (1) year
period ending on the first anniversary of the Effective Date, such portion of
each Stock Option as would have vested during such one (1) year period shall,
to the extent not vested as of the date on which such Change of Control is
consummated, be accelerated and shall be deemed to have vested immediately
prior to such Change of Control and Mr. King may, after the date on which such
Change of Control is consummated, exercise such portion of such Stock Option
during the period provided for in such Stock Option for the exercise of the
vested portion of such Stock Option following a termination of employment
without cause (as if the date on such Change of Control is consummated were the
effective date of such termination without cause).
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7. No Effect on Indemnification Agreement. This Agreement shall have no effect
on, and shall not limit in any way, the obligations of the Company pursuant to
the terms of that certain Indemnification Agreement dated as of October 25,
1995 by and between the Company and Mr. King, a copy of which is attached
hereto as Exhibit A (the "Indemnification Agreement").
8. Assistance and Cooperation. In addition to the consulting services to be
provided pursuant to Section 5, Mr. King shall assist the Company and cooperate
in preparing for any and all litigation, arbitration proceedings,
investigations and other legal proceedings (collectively, "Legal Proceedings")
relating to matters which occurred during his tenure with the Company and as to
which the Company may reasonably request his assistance. Without limiting the
generality of the foregoing, Mr. King shall (i) make himself available at such
times as may reasonably be requested for depositions in connection with any
Legal Proceedings, (ii) make himself available to testify in any Legal
Proceedings and (iii) assist the Company in preparing responses to requests for
written discovery in any Legal Proceedings. To the extent such assistance is
rendered during the Consulting Period, Mr. King shall be compensated in
accordance with the provisions of Section 5(b) of this Agreement. To the extent
such assistance is rendered after the expiration of the Consulting Period, Mr.
King shall only be entitled to be reimbursed for his out-of-pocket expenses in
providing such assistance to the Company. The Company shall work with Mr. King
in good faith and otherwise use reasonable efforts to ensure that the
assistance requested of Mr. King pursuant to this Section 8 will not unduly
interfere with Mr. King's other personal and professional commitments at the
time any such request is made.
9.Confidentiality and Non-Solicitation.
(a) Mr. King agrees that (i) in the course of his employment by the Company
he has created, used and had access to, and that, in the course of
providing consulting services to the Company during the Consulting Period,
he may create, use or have access to (A) technical, business, or customer
information, materials, or data relating to the Company's present or
planned business which has not previously been released to the public with
the Company's authorization, including, but not limited to, confidential
information, materials or proprietary data belonging to the Company or
relating to the Company's affairs (collectively, the "Confidential
Information") and (B) other non-public information and materials that
concern the Company's business (collectively, "Business Related
Information"), (ii) the Confidential Information and the Business Related
Information are the property of the Company, (iii) any misappropriation or
disclosure of the Confidential Information or the Business Related
Information would constitute a breach of trust and could cause serious and
irreparable injury to the Company, and (iv) it is essential to the
protection of the Company's good will and to the maintenance of the
Company's competitive position that the Confidential Information and the
Business Related Information be kept secret and that Mr. King not disclose
the Confidential Information or the Business Related Information to others
or use same to his own advantage or the advantage of others;
(b) In consideration of the payments being made pursuant hereto, Mr. King
agrees that, except to the extent that any Confidential Information or
Business Related Information becomes publicly available (otherwise than
through a breach of this Section 9 by Mr. King), he will (i) hold and
safeguard the Confidential Information and the Business Related Information
in trust for the Company, its successors and assigns, (ii) not appropriate
or disclose or make available to anyone for use outside of the Company's
organization at any time any of the Confidential Information or the
Business Related Information, whether or not developed by Mr. King, (iii)
at all times keep in strictest confidence all Confidential Information and
all Business Related Information, and (iv) not disclose or divulge, or
allow to be disclosed or divulged by any person within his control, to any
person, firm or corporation, or use directly or indirectly, for his own
benefit or the benefit of others, any Confidential Information or Business
Related Information.
(c) In consideration of the payments being made pursuant hereto, Mr. King
agrees that, during the period from the Effective Date through the second
anniversary of the Effective Date, he will not, directly or indirectly,
without the prior written consent of the Company (which consent shall not
be unreasonably withheld) (i) induce any patient or customer of the
Company, either individually or collectively, to patronize any competing
dialysis facility, (ii) request or advise any patient, customer or supplier
of the Company to withdraw, curtail or cancel such person's business with
the Company, (iii) enter into any
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contract the purpose or result of which would benefit Mr. King if any
patient or customer of the Company were to withdraw, curtail or cancel such
person's business with the Company, (iv) solicit, induce or encourage any
physician (or former physician) affiliated with the Company, or induce or
encourage any other person employed by or under contract with the Company,
to curtail or terminate such person's affiliation or employment or
contractual relationship with the Company, or (v) disclose to any provider
of dialysis services the names or physician addresses of any customer of
the Company.
(d) The provisions of this Section 9 notwithstanding, the Company hereby
consents to Mr. King's serving as a consultant to Scripps Memorial Hospital
with respect to two ESRD facilities located in San Diego County.
(e) Mr. King agrees that any violation of any covenant in this Section 9
may cause such damage to the Company as will be serious and irreparable and
the exact amount of which will be difficult to ascertain, and for that
reason, Mr. King agrees that the Company shall be entitled, as a matter of
right, to a temporary, preliminary and/or permanent injunction and/or other
injunctive relief, ex parte or otherwise, from any court of competent
jurisdiction, restraining any further violations by Mr. King. Such
injunctive relief shall be in addition to and in no way in limitation of,
any and all other remedies the Company shall have in law and equity for the
enforcement of such covenants and provisions. In the event that any
provision of this Section 9 is held unenforceable or invalid by any court
or other governmental body, the remaining parts hereof shall nevertheless
continue to be valid and enforceable as though the invalid portions had not
been a part hereof.
10. Release by Mr. King. As a material inducement to the Company to enter into
this Agreement, Mr. King hereby irrevocably and unconditionally releases,
acquits and forever discharges the Company and each of the Company's past,
present and future owners, stockholders, predecessors, successors, assigns,
agents, directors, officers, employees, representatives, attorneys, divisions,
subsidiaries and affiliates (and all past, present and future owners,
stockholders, predecessors, successors, assigns, agents, directors, officers,
employees, representatives and attorneys of such divisions, subsidiaries and
affiliates), and all persons acting by, through, under or in concert with any
of them (collectively, "Company Releasees"), from any and all charges,
complaints, claims, liabilities, obligations, promises, agreements,
controversies and expenses (including attorneys' fees and costs actually
incurred) of any nature whatsoever, known or unknown, suspected or unsuspected,
including, but not limited to, any charges, complaints, claims, liabilities,
obligations, controversies and expenses arising out of alleged violations of
any contracts, express or implied, any covenant of good faith and fair dealing,
express or implied, any obligation for compensation, lost wages, lost benefits,
accrued vacation pay, or any other expectation of remuneration or benefit on
the part of Mr. King, including but not limited to, any defamation, intentional
or negligent infliction of emotional distress, or any other tort, or any legal
restrictions on the Company's right to terminate employees, or any federal
state or other governmental statute, regulation, or ordinance (including,
without limitation: (i) Title VII of the Civil Rights Act of 1964 (race, color,
religion, sex and national origin discrimination); (ii) 42 U.S.C. (P) 1981
(discrimination); (iii) 29 U.S.C. (P) 206(d)(1) (equal pay); (iv) the
California Fair Employment and Housing Act (discrimination, including race,
color, national origin, ancestry, physical handicap, medical condition, marital
status, sex or age); (v) the California Workers' Compensation Act; (vi) the
California Labor Code; (vii) Executive Order 11246 (race, color, religion, sex
and national origin discrimination); (viii) Executive Order 11141 (age
discrimination); (ix) (P) 503 and (P) 504 of the Rehabilitation Act of 1973
(disability discrimination); (x) the Employee Retirement Income Security Act
(employee benefits); (xi) the Fair Labor Standards Act; (xii) the Americans
with Disabilities Act (discrimination against individuals with a disability);
(xiii) the Age Discrimination in Employment Act (age discrimination), and (xiv)
the Civil Rights Act of 1991), which Mr. King now has, owns or holds, or claims
to have, own or hold, or which Mr. King at any time heretofore had, owned, or
held, or claimed to have, own or hold, against each or any of the Company
Releasees; provided, however, that the foregoing shall not release the Company
from (1) any of its obligations under this Agreement (including the obligation
to make the payments provided for herein and to reimburse Mr. King for business
expenses as provided in Section 4) or under the Indemnification Agreement, or
(2) any claims arising after October 18, 1999.
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11. Release by the Company. As a material inducement to Mr. King to enter into
this Agreement, the Company, on its own behalf and on behalf of the
subsidiaries and affiliated entities which it controls, hereby irrevocably and
unconditionally releases, acquits and forever discharges Mr. King, his personal
and legal representatives, executors, administrators, heirs, distributees,
devisees and legatees (collectively, the "King Releasees") from any and all
charges, complaints, claims, liabilities, obligations, promises, agreements,
controversies and expenses (including attorneys' fees and costs actually
incurred) of any nature whatsoever, known or unknown, suspected or unsuspected,
including, but not limited to, any charges, complaints, claims, liabilities,
obligations, controversies and expenses arising out of alleged violations of
any contracts, express or implied, or any covenant of good faith and fair
dealing, express or implied, which the Company or any of such subsidiaries or
affiliated entities now has, owns or holds, or claims to have, own or hold, or
which the Company or any of such subsidiaries or affiliated entities at any
time heretofore had, owned, or held, or claimed to have, own or hold, against
Mr. King or any other King Releasee relating to the performance of Mr. King's
duties as an officer or employee of the Company or any of its divisions,
subsidiaries or affiliates; provided, however, that the foregoing shall not
release Mr. King or any King Releasee from (1) any obligations under this
Agreement or under the Indemnification Agreement, (2) any claims arising after
October 18, 1999 or (3) any claims arising out of any conduct by Mr. King which
was knowingly fraudulent or deliberately dishonest or for which Mr. King would
not be entitled to indemnification by the Company under the Indemnification
Agreement.
12. Knowing and Voluntary Waiver. The parties expressly waive and relinquish
all rights and benefits afforded by Section 1542 of the Civil Code of the State
of California, and do so understanding and acknowledging the significance of
such specific waiver of Section 1542. Section 1542 of the Civil Code of the
State of California states as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR."
Thus, notwithstanding the provisions of Section 1542, and for the purpose of
implementing the releases provided herein, each party expressly acknowledges
that this Agreement is intended to include in its effect, without limitation,
all claims, other than the claims expressly not released as provided above,
which such party does not know or suspect to exist in such party's favor at the
time of execution hereof, and that this Agreement contemplates the
extinguishment of any such claims. The parties acknowledge and agree that they
have expressly bargained for the foregoing waiver of the provisions of Section
1542.
13. No Claims; Covenant Not to Sue. Mr. King represents and covenants that (i)
he has not filed any complaints, charges or lawsuits, nor commenced any
arbitration or similar proceedings, against the Company or any other Company
Releasee in connection with any claim or potential claim released hereunder,
including any claims under the Employment Agreement, and (ii) he will not do so
at any time hereafter; provided, however, that this Section 13 shall not limit
Mr. King from commencing arbitration proceedings for the purpose of enforcing
his rights under this Agreement or from commencing litigation for the purpose
of enforcing any of his rights under the Indemnification Agreement. The Company
represents and covenants that (i) it has not filed any complaints, charges or
lawsuits, nor commenced any arbitration or similar proceedings, against Mr.
King or any other King Releasee in connection with any claim or potential claim
released hereunder, and (ii) it will not do so at any time hereafter; provided,
however, that this Section 13 shall not limit the Company from commencing
arbitration proceedings for the purpose of enforcing its rights under this
Agreement or from commencing litigation for the purpose of enforcing any of its
rights under the Indemnification Agreement.
14. Non-Admission of Liability. This Agreement shall not in any way be
construed as an admission (i) by the Company that it has acted wrongfully with
respect to Mr. King or that Mr. King has any rights whatsoever against the
Company or any other Company Releasee, and the Company specifically disclaims
any liability to or wrongful acts against Mr. King or (ii) by Mr. King that he
has acted wrongfully with respect to the Company or any other Company Releasee
or that the Company has any rights whatsoever against him or
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any other King Releasee, and Mr. King specifically disclaims any liability to
or wrongful acts against the Company or any other Company Releasee.
15. Non-Disparagement. From and after the date hereof, the Company shall not
make any untrue, defamatory or disparaging statements concerning Mr. King, and
Mr. King shall not make any untrue, defamatory or disparaging statements
concerning the Company or any other Company Releasee. The foregoing
notwithstanding, under no circumstances shall testimony given under oath in any
lawsuit, deposition or other legal proceeding be held to constitute
disparagement of any person or entity in violation of this Section 15.
16. No Confidentiality. Mr. King acknowledges that the Company intends to file
a copy of this Agreement as an exhibit to a future filing with the Securities
and Exchange Commission. Consequently, Mr. King acknowledges and agrees that
the contents of this Agreement will be made publicly available and confirms
that he has no expectation of confidentiality with respect to the terms hereof.
17. Miscellaneous.
(a) Return of Company Property. Mr. King hereby confirms that he has
delivered and returned to the Company any and all property, including
without limitation, any and all books, records, computer records, files and
other materials, documents and similar property, belonging to or concerning
the Company or any subsidiary or affiliate of the Company which may be in
his possession or control, including any and all documents or other
materials containing or constituting Confidential Information or Business
Related Information.
(b) Arbitration of Disputes. All controversies, claims, disputes, and
matters in question arising out of, or relating to, this Agreement or the
breach hereof, shall be decided by binding arbitration conducted in Los
Angeles, California under the applicable rules of the American Arbitration
Association or its successor in effect at the time a demand for arbitration
is made. The arbitration panel will consist of three arbitrators, one
chosen by the Company, one chosen by Mr. King and one chosen by the two
arbitrators so chosen. The decision of the majority of the arbitrators,
including the determination of the amount of any damages suffered, shall be
conclusive, final, and binding on the parties hereto, and their respective
heirs, legal representatives, successors, and assigns. The arbitrators
shall have no power to award punitive, exemplary or similar damages to any
party. Each party shall bear such party's own attorneys' fees and costs in
any such arbitration. The costs of the arbitrators and the fees and charges
of the American Arbitration Association shall be shared equally by the
Company and Mr. King. The arbitrators shall be bound to follow California
law and case precedent.
(c) Notices. Any notice or demand which, by the provisions hereof, is
required or which may be given to or served upon the parties hereto shall
be in writing and shall be deemed to have been validly served, given or
delivered (i) upon confirmation of transmission, if sent by telecopy, (ii)
upon actual delivery, if delivered by personal delivery, and (iii) three
business days after deposit in the United States mail, as registered or
certified mail, with proper postage prepaid and addressed to the party or
parties to be notified, if sent by mail. All notices shall be sent or
delivered to the following addresses or facsimile numbers (or such other
address(es) or facsimile number(s) as a party may designate by like
notice):
If to the Company: Total Renal Care Holdings, Inc.
21250 Hawthorne Boulevard, Suite 800
Torrance, California 90503
Attention: General Counsel
Facsimile No.: (310) 792-0044
If to Mr. King: John E. King
610 Faye Lane
Redondo Beach, California 90277
Facsimile No.: (310) 540-7886
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(d) Successors and Assigns. The parties hereto acknowledge that the Company
shall have the right to assign, with absolute discretion, any or all of its
rights and obligations under this Agreement to any of its affiliates,
successors and assigns, and this Agreement shall inure to the benefit of,
and be binding upon, such respective affiliates, successors and assigns of
the Company, in the same manner and to the same extent as if such
affiliates, successors and assigns were original parties hereto. This
Agreement shall be deemed to be personal to Mr. King and shall not be
assignable by Mr. King.
(e) Governing Law. This Agreement shall be governed by, and construed and
interpreted in accordance with, the laws of the State of California
(without regard to choice of law principles).
(f) Amendment; Waiver. This Agreement may be amended only by an instrument
in writing executed by the parties hereto. No waiver, express or implied,
of any breach of any covenant, agreement or duty shall be held or construed
as a waiver of any other breach of the same or any other covenant,
agreement or duty.
(g) Entire Agreement. This Agreement and the Indemnification Agreement
constitute the entire agreement of the parties hereto and fully supersede
and replace any and all prior agreements (including the Employment
Agreement) and understandings, whether oral or written, express or implied,
between the parties pertaining to the subject matter of this Agreement.
(h) Captions. The captions of the several sections and paragraphs of this
Agreement are used for convenience only and shall not be considered or
referred to in resolving questions of interpretation with respect to this
Agreement.
(i) Counterparts. This Agreement may be executed in counterparts, each of
which will be deemed an original, and both of which together shall
constitute one and the same Agreement.
(j) Negotiation. Mr. King acknowledges that (i) he has had an opportunity
to negotiate the terms of this Agreement and to receive advice of counsel
with regard thereto, (ii) he has carefully read and considered this
Agreement, (iii) he fully understands the extent and impact of the
provisions of this Agreement, and (iv) he has executed this Agreement
voluntarily and without coercion, undue influence, threats, or intimidation
of any kind or type whatsoever.
(k) Time Periods. Mr. King understands that he has the right to be given
twenty-one (21) days to consider whether or not to execute this Agreement
and that, if he chooses to execute this Agreement before that time period
expires, he will be deemed to have voluntarily waived and forfeited such
right. Mr. King also understands that he has up to seven (7) days after
executing this Agreement to rescind this Agreement by notifying the Company
of such recission in writing.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
TOTAL RENAL CARE HOLDINGS, INC.
/s/ George B. Dehuff, III /s/ John E. King
By: ____________________________________ ________________________________________
George B. Dehuff, III John E. King
President
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