SEVERANCE AND RELEASE AGREEMENT
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This Severance and Release Agreement ("Agreement") is entered into by
and between STAAR Surgical Company, a Delaware corporation (the "Company") and
Xxxxxx X. Xxxxxxxx, an individual ("Xxxxxxxx"), this 21/st/ day of August, 2001
based upon the following:
RECITALS
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Whereas, on September 20, 1996 the Company and Xxxxxxxx entered into that
certain "Employment Agreement";
Whereas, the Company terminated Xxxxxxxx' employment on July 6, 2000;
Whereas, on or about November 12, 2000, Xxxxxxxx filed a complaint with the
Department of Fair Employment and Housing alleging discrimination relating to
the termination of his employment (the "Complaint"); and
Whereas, both Xxxxxxxx and the Company wish to settle, finally and forever,
any and all issues relating to Chamber's employment with the Company and the
termination of his employment, including the Complaint;
Whereas, the Company and Xxxxxxxx wish to memorialize their agreement
relating to the termination of Xxxxxxxx employment with the Company, the
severance benefits that are to be transferred or paid to Xxxxxxxx as a result of
the termination of his employment, and Xxxxxxxx waiver of all rights and claims
which he may have against the Company, if any.
Now, therefore, in consideration of the mutual covenants and promises
contained herein and for other valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Company and Xxxxxxxx agree as
follows:
AGREEMENT
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1. Incorporation of Recitals. The recitals to this Agreement are an
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integral part of this Agreement and are hereby incorporated as a part of this
Agreement as if set forth in it.
2. Consideration for Agreement. In exchange for Xxxxxxxx release of the
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Company from any past, present and future obligations (if any), whether monetary
or otherwise, allegedly owed by the Company to Xxxxxxxx based upon Xxxxxxxx
employment and the termination thereof, the Company shall enter into a
Consulting Agreement with Xxxxxxxx, a copy of which is attached hereto as Annex
A.
3. Waiver of All Claims. Xxxxxxxx agrees that he is not entitled to
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receive, will not claim and expressly waives any entitlement to rights, benefits
or compensation from the Company other than as expressly set forth in this
Agreement.
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4. Complete Release by Xxxxxxxx.
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(a) Release. Xxxxxxxx irrevocably and unconditionally releases all of
the claims described in subsection (b) of this section 4 that he may now have
against the following persons or entities (the "Releasees"): the Company, all of
its past and present employees, officers, directors, stockholders, owners,
representatives, assigns, attorneys, agents, insurers, employee benefit programs
(and the trustees, administrators, fiduciaries and insurers of such programs)
and any other persons acting by, through, under or in concert with any of the
persons or entities listed in this subsection.
(b) Claims Released. The claims released include all claims, promises,
debts, causes of action or similar rights of any type or nature Xxxxxxxx has or
had which in any way relate to (i) Xxxxxxxx employment with the Company, or the
termination of that employment, such as claims for compensation, bonuses,
commissions, lost wages or unused accrued vacation or sick pay, (ii) the design
or administration of any employee benefit program or Xxxxxxxx entitlement to
benefits under any such program, (iii) any claims to attorneys' fees and/or
other legal costs, (iv) the Complaint, and (v) any other claims or demands
Xxxxxxxx may, on any basis, have. The claims released include, but are not
limited to, claims arising under any of the following statutes or common law
doctrines:
(i) Anti-Discrimination Statutes, such as the Age Discrimination
in Employment Act, which prohibits age discrimination in employment;
the Civil Rights Act of 1991, Title VII of the Civil Rights Act of
1964, and Section 1981 of the Civil Rights Act of 1866, which prohibit
discrimination based on race, color, national origin, religion or sex;
the Equal Pay Act, which prohibits paying men and women unequal pay
for equal work; the Americans With Disabilities Act, which prohibits
discrimination against the disabled; the California Fair Employment
and Housing Act, which prohibits discrimination in employment based
upon race, color, national origin, ancestry, physical or mental
disability, medical condition, martial status, sex, or age; and any
other federal, state or local laws or regulations prohibiting
employment discrimination.
(ii) Federal Employment Statutes, such as the Employee Retirement
Income Security Act of 1974, which, among other things, protects
pension or health plan benefits; and the Fair Labor Standards Act of
1938, which regulates wage and hour matters.
(iii) Other Laws, such as any federal, state or local laws
restricting an employer's right to terminate employees or otherwise
regulating employment; any federal, state or local law enforcing
express or implied employment contracts or requiring an employer to
deal with employees fairly or in good faith; and any other federal,
state or local laws providing recourse for alleged wrongful discharge,
physical or personal injury, emotional distress, fraud, negligent
misrepresentation, libel, slander, defamation and similar or related
claims. The laws referred to in this paragraph include statutes,
regulations, other administrative guidance and common law doctrines.
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(c) Release Extends to Both Known and Unknown Claims. This release
covers both claims that Xxxxxxxx knows about and those Xxxxxxxx does not know
about. Xxxxxxxx understands the significance of this release of unknown claims
and his waiver of any statutory protection against a release of unknown claims.
Xxxxxxxx expressly waives the protection of any such governmental statutes or
regulations.
More particularly, and without limitation, Xxxxxxxx acknowledges that
Xxxxxxxx has read and is familiar with and understands the provisions of Section
1542 of the California Civil Code, which provides: "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 TO HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
XXXXXXXX EXPRESSLY WAIVES ANY RIGHT OR CLAIM OF RIGHT XXXXXXXX MAY
HAVE UNDER SECTION 1542 OF THE CALIFORNIA CIVIL CODE.
(d) Ownership of Claims. Xxxxxxxx represents that he has not assigned
or transferred, or purported to assign or transfer, all or any part of any claim
released by this Agreement.
(e) Release Does Not Extend to Consulting Agreement. Nothing in this
section 4 will release the Company from its obligations under the Consulting
Agreement.
5. Xxxxxxxx Promises. In addition to the release of claims provided for
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in section 4, Xxxxxxxx promises never to file or prosecute a lawsuit,
administrative complaint or charge, or other complaint or charge asserting any
claims that are released by this Agreement. Xxxxxxxx represents that, with the
exception of the Complaint, he has not filed or caused to be filed any lawsuit,
complaint or charge with respect to any claim this Agreement releases. Xxxxxxxx
further agrees to request any government agency or other body assuming
jurisdiction of the Complaint or any other complaint or charge relating to a
released claim to withdraw from the matter or dismiss the matter with prejudice.
6. Consulting with Attorney. Xxxxxxxx acknowledges that the Company has
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advised him to obtain the services of an attorney to review this Agreement and
to advice him regarding it. Xxxxxxxx acknowledges he has had ample opportunity
to consult with an attorney prior to executing this Agreement and has, in fact,
done so.
7. Period for Consideration of Agreement. Xxxxxxxx acknowledges that
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Xxxxxxxx was given a period of 21 days to review and consider this Agreement
before signing it. Xxxxxxxx further acknowledges that: (1) Xxxxxxxx took
advantage of this period to consider this Agreement before signing it; (2)
Xxxxxxxx carefully read this Agreement; and (3) Xxxxxxxx fully understands this
Agreement and is entering into it voluntarily and without coercion or duress.
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8. Severability. The provisions of this Agreement are severable. If any
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part of it is found to be unenforceable, all other provisions shall remain fully
valid and enforceable.
9. Choice of Laws/Venue. This Agreement shall be governed by the laws of
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the State of California, and any action or proceeding relating to this Agreement
shall be heard solely before the Courts of the County of Los Angeles,
California.
10. Nature, Effect and Interpretation of this Agreement.
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(a) Entire Agreement. This is the entire Agreement between Xxxxxxxx
and the Company; it may not be modified or cancelled in any manner except by a
writing signed by both the Company and Xxxxxxxx. The Company has made no
promises or representations to Xxxxxxxx other than those in this Agreement and
the Consulting Agreement and Xxxxxxxx has made no promises or representations to
the Company other than those in this Agreement and the Consulting Agreement.
(b) Successors and Assigns. This Agreement shall bind both the
Company's and Xxxxxxxx' heirs, administrators, representatives, executors,
successors and assigns, and shall inure to the benefit of all Releasees and
their respective heirs, administrators, representatives, executors, successors
and assigns.
(c) Interpretation. This Agreement shall be construed as a whole
according to its fair meaning, and not strictly for or against any of the
parties. Unless the context indicates otherwise, the term "or" shall be deemed
to include the term "and" and the singular or plural number shall be deemed to
include the other. Paragraph headings used in this Agreement are intended solely
for convenience of reference and shall not be used in the interpretation of any
of this Agreement. It is acknowledged that neither party shall be construed to
be solely responsible for the drafting hereof, and therefore any ambiguity shall
not be construed against either party as the alleged draftsman of this
Agreement.
(d) Counterparts and Facsimiles. For the convenience of the parties to
this Agreement, this document may be executed by facsimile signatures and in
counterparts that shall together constitute the agreement of the parties as one
and the same instrument.
(e) Implementation. The Company and Xxxxxxxx both agree that, without
the receipt of further consideration, they will sign and deliver any documents
and do anything else that is necessary in the future to make the provisions of
this Agreement effective.
11. Notices. Unless otherwise specifically provided in this Agreement, all
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notices, demands, requests, consents, approvals or other communications
(collectively and severally called "Notices") required or permitted to be given
hereunder, or which are given with respect to this Agreement, shall be in
writing, and shall be given by: (1) personal delivery (which form of Notice
shall be deemed to have been given upon delivery), (2) by telegraph or by
private airborne/overnight delivery service (which forms of Notice shall be
deemed to have been given upon confirmed delivery by the delivery agency), (3)
by electronic or facsimile or telephonic transmission, provided the receiving
party has a compatible device or confirms receipt thereof (which forms of
Notice shall be deemed delivered upon confirmed transmission or confirmation of
receipt), or (4) by mailing in the United States mail by registered or certified
mail, return receipt requested, postage prepaid (which forms of Notice shall be
deemed to have been given upon the fifth (5th) business day following the date
mailed). Notices shall be addressed to the parties as follows:
Xxxxxxxx: Xx. Xxxxxx X. Xxxxxxxx
000 Xxxxxxx Xxxxxx, #000
Xxxxxxxxx, Xxxxxxxxxx 00000
Company: STAAR Surgical Company
0000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: Chief Executive Officer
12. Revocation Period. Xxxxxxxx understands that he has a period of seven
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days to revoke this Agreement from the date he signs it.
PLEASE READ THIS AGREEMENT CAREFULLY. IT CONTAINS A RELEASE OF ALL
KNOWN AND UNKNOWN CLAIMS.
Executed at Claremont, California this 21st day of August 2001.
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"Xxxxxxxx"
/s/ Xxxxxx X. Xxxxxxxx
__________________________________
Xxxxxx X. Xxxxxxxx
Executed at Monrovia, California this 30th day of August 2001.
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"COMPANY"
STAAR Surgical Company
By: /s/ Xxxxx Xxxxxx
_______________________________
Xxxxx Xxxxxx, President
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ANNEX A
CONSULTING AGREEMENT
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CONSULTING AGREEMENT
THIS AGREEMENT is made effective as of August 9, 2001, by and between STAAR
Surgical Company (hereafter "STAAR"), 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx 00000, and
Xxxxxx Xxxxxxxx (hereafter " Xx. Xxxxxxxx"), 000 Xxxxxxx Xxxxxx # 000,
Xxxxxxxxx, Xxxxxxxxxx 00000 as follows:
1. Term. STAAR hereby retains Xx. Xxxxxxxx for consulting services pursuant
to the terms described herein, and hereby accepts such retention, commencing as
of the date of this Agreement and expiring on August 8, 2003 (hereafter the
"Term").
2. Consulting Services. Xx. Xxxxxxxx shall perform consulting services as
mutually agreed upon between Xx. Xxxxxxxx and STAAR (hereafter the "Consulting
Services") as follows:
Be available at mutually agreeable times, but no more time than eight hours
in any one calendar month, to provide background information personally to Xxxxx
Xxxxxx, the President, or subsequent Presidents, of STAAR Surgical Company
related to past events that occurred during Xx. Xxxxxxxx' employment with STAAR
which ended on July 6, 2000.
3. Compensation. As consideration for Xx. Xxxxxxxx' performance of the
Consulting Services, STAAR hereby grants to Xx. Xxxxxxxx the STAAR stock option
grant totaling 10,000 units now available under a stockholder approved stock
option plan. Pricing would be at the close of business on the day of Xxxxxxxx'
signing. All such stock options must be exercised within three (3) months
following the expiration date of this Agreement; any options remaining
unexercised after such three month period shall expire. In addition, Xx.
Xxxxxxxx shall receive cash compensation in the total of $107,692.30 paid in
even installments over the first 8 months of this Agreement. The first amount to
be due and payable 28 days from Xx. Xxxxxxxx' receipt of the Consulting
Agreement and the Severance and Release Agreement, and the effective date of the
agreement. Subsequent payments to be made on the 25th of each month.
4. Outside Employment. STAAR acknowledges that during the term of this
Agreement, Xx. Xxxxxxxx may be engaged by one or more entities, businesses or
institutions that are in direct competition with Staar. Xx. Xxxxxxxx represents
that he is not and shall not become a party to any agreement which conflicts
with the Consulting Services described herein. Staar acknowledges that the
information sought from Xx. Xxxxxxxx shall not compromise or otherwise conflict
with his present engagements or employment.
5. "STAAR Confidential information" shall mean all financial, operational
and administrative records, research data and information, technical
information, commercial and research strategies, trade secrets, and know-how
disclosed by STAAR to Xx. Xxxxxxxx prior to July 7, 2000. Any research data and
technical information, commercial and research strategies, and know-how
independently obtained by Xx. Xxxxxxxx after his employment at STAAR shall not
be considered "STAAR Confidential information".
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(a) Confidentiality and Non-Use. Except as provided above, Xx. Xxxxxxxx
will maintain the STAAR Confidential Information in confidence, and will not
disclose any STAAR Confidential Information to any third party without STAAR's
prior written consent. Xx. Xxxxxxxx will use the STAAR Confidential Information
solely for the purpose of providing the Consulting Services to STAAR unless
STAAR shall otherwise agree in writing.
(b) Exceptions. In addition to the exceptions described above, Xx.
Xxxxxxxx' obligations of non-use and confidentiality shall not apply to any
information and know-how which: (i) can be shown by contemporaneous
documentation to have rightfully been in Xx. Xxxxxxxx' possession prior to
disclosure by STAAR; (ii) at the time of disclosure hereunder is, or thereafter
becomes, through no fault of Xx. Xxxxxxxx, part of the public domain; or (iii)
is furnished to Xx. Xxxxxxxx by a third party after the time of disclosure
hereunder without the breach of any duty to STAAR.
6. Execution of Papers, Oaths and Testimony. Xx. Xxxxxxxx agrees that at
any time, whether it be during the term of this Agreement or any extension
thereof, or after the expiration or termination of this Agreement, upon the
request of STAAR and without further compensation, but at no expense to Xx.
Xxxxxxxx, Xx. Xxxxxxxx shall perform any lawful acts, including the execution of
papers and oaths and the giving of testimony, that in the opinion of STAAR, its
successors or assigns may be necessary or desirable in order to obtain, sustain,
reissue and renew, and in order to enforce, perfect; record and maintain, patent
applications and United States and foreign patents on STAAR's inventions, and
copyright registrations on STAAR's inventions.
7. Notice. Any notice to STAAR shall be addressed as follows or as shall be
specified by a party in writing:
If to STAAR: If to Xxx Xxxxxxxx:
STAAR Surgical Company Xxx Xxxxxxxx
0000 Xxxxxx Xxxxxx 000 Xxxxxxx Xxxxxx #000
Xxxxxxxx, Xxxxxxxxxx 00000 Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
8. Amendment and Survival. This Agreement may be amended or renewed only
with the written agreement of both parties and for new consideration.
9. Assignment and Governing Law. This Agreement and any rights under it may
not be assigned by Xx. Xxxxxxxx without STAAR's prior written consent. Any
unauthorized attempt to assign by Xx. Xxxxxxxx shall be void. This Agreement
shall be governed by the laws of the State of California, and any action
connected herewith shall be brought in Los Angeles County Courts.
10. Not an Employee. Xx. Xxxxxxxx is an independent contractor and is not
an employee or agent of STAAR Xx. Xxxxxxxx shall not be entitled to any benefits
or compensation from STAAR except as set forth in this Agreement. Xx. Xxxxxxxx
shall be solely responsible for meeting all of his tax requirements.
Additionally, nothing contained in this Agreement shall entitle Xx. Xxxxxxxx to
the right or authority to make any representation on behalf of or bind STAAR to
others in any manner, except as may be specifically authorized in writing by
STAAR.
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11. Waiver and Severability. No waiver of any of the provisions of this
Agreement shall be deemed, or shall constitute, a waiver of any other provision,
whether or not similar, nor shall any waiver constitute a continuing waiver. No
waiver shall be binding unless executed in writing by the party making the
waiver. In the event of a conflict between the provisions in the body of this
Agreement, the terms in the body of this Agreement will control.
12. Entire Agreement. This Agreement is the entire agreement of the parties
relating to the subject matter hereof. Any prior negotiations, correspondence,
memoranda or agreements relating to the Consulting Services are superseded in
total by this Agreement; and the parties' rights, duties liabilities and
remedies with respect to the Consulting Services and this Agreement are limited
to those expressly set forth in this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
STAAR SURGICAL COMPANY XXXXXX XXXXXXXX
By: /s/ Xxxxx Xxxxxx 8/30/01 /s/ Xxxxxx X. Xxxxxxxx 8/21/01
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Xxxxx Xxxxxx Date Signature Date
Chief Executive Officer
and President
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Appendix A
Be available to provide background information to the President of STAAR
Surgical Company related to past events that occurred during Xxx Xxxxxxxx'
employment with STAAR. Conditions to be honored by STAAR.
. Reasonable notice and mutually agreed timing for any meeting or
discussion
. Maximum time not to exceed eight hours in any one-month period.
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