Re: Separation Agreement and Release
Exhibit 10.3
Xx. Xxxxxx Xxxxx
February 16, 2011
February 16, 2011
February 16, 2011
Xxxxxx X. Xxxxx
0000 Xxxxxx Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
0000 Xxxxxx Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
| Re: | Separation Agreement and Release |
Dear Gene:
As we have discussed, your employment with SurModics, Inc., including its subsidiary SurModics
Pharmaceuticals, Inc. (“SurModics”), will end effective February 16, 2011. The purpose of this
Separation Agreement and Release letter (“Agreement”) is to set forth the specific separation pay
and benefits that SurModics will provide you in exchange for your agreement to the terms and
conditions of this Agreement.
By your signature below, you agree to the following terms and conditions:
1. End of Employment.
| a. | Your employment with SurModics will be continued until February 16, 2011, and this will be considered your Employment Termination Date. | ||
| b. | Except as otherwise provided in this Agreement, you will be entitled to your current rate of salary and employment benefits through your Employment Termination Date, after which, you will not be entitled to any compensation or other benefits of employment except as set forth in this Agreement. | ||
| c. | You are not eligible for any other payments or benefits except for those expressly described in this Agreement, provided that you sign and do not rescind this Agreement, and otherwise comply with the terms of this Agreement. |
2. Separation Pay and Benefits. Specifically in consideration of your signing this
Agreement and subject to the limitations, obligations, and other provisions contained in this
Agreement, SurModics agrees as follows:
| a. | To pay you a lump sum amount, less applicable withholdings, equal to (i) six (6) months base salary, and (ii) $100,000 (in satisfaction of amounts owed to you as a retention payment). The payment described in this Section 2.a. will be paid within ten (10) business days after the expiration of the rescission periods described in Section 5 below; or on the next scheduled pay-date following the expiration of the rescission periods described in Section 5 below, whichever is later, and shall be considered timely if placed in the U.S. Mail, postage prepaid, and postmarked on the date such payment is due. If the date such payment would be due falls on a weekend or holiday, payment |
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February 16, 2011
February 16, 2011
| shall be considered timely if it is placed in the U.S. Mail, postage prepaid, on the next business day following such weekend or holiday. | |||
| b. | To pay you a lump sum benefits continuation payment of $6,528, less applicable withholdings, to assist you with the cost of COBRA insurance continuation following your Employment Termination Date, to be paid within ten (10) business days after the expiration of the rescission periods described in Section 6 below. By your signature below, you acknowledge and agree that SurModics may modify or terminate its group insurance plans at any time and that you shall have the same right to participate in SurModics’ group insurance plans only as is provided on an equivalent basis to SurModics’ employees. In order to continue coverages, you must elect COBRA coverage in accordance with the applicable plan documents. Nothing in this Agreement extends your COBRA period for continuation of your insurance coverage under SurModics’ group plans. | ||
| c. | To provide outplacement support through Right Management Consultants for three months; provided, however, that if you have not located suitable employment within three (3) months, the outplacement services will be extended for one additional three month period. |
3. Release of Claims. Specifically in consideration of the separation pay and
benefits described in Section 2, and to which you would not otherwise be entitled, by signing this
Agreement you, for yourself and anyone who has or obtains legal rights or claims through you, agree
to the following:
a. You hereby do release, agree not to xxx, and forever discharge all of your rights you may
have to any relief of any kind from SurModics (as defined below) of and from any and all manner of
claims, demands, actions, causes of action, administrative claims, liability, damages, claims for
punitive or liquidated damages, claims for attorney’s fees, costs, interest and disbursements,
individual or class action claims, requests for equitable relief, or any other demands of any kind
whatsoever, you have or might have against them or any of them, whether known or unknown, in law or
equity, contract or tort, arising out of or in connection with your employment with SurModics, or
the termination of that employment, or otherwise, and however originating or existing, from the
beginning of time through the date of your signing this Agreement.
b. This release includes, without limiting the generality of the foregoing, all of your rights
to relief of any kind from SurModics for any claims, including claims you may have for wages,
bonuses, commissions, penalties, deferred compensation, vacation pay, separation benefits, back
pay, front pay, reinstatement, equitable relief, compensatory damages, damages for alleged personal
injury, liquidated damages, punitive damages, failure to keep any promise, breach of a covenant of
good faith and fair dealing, breach of fiduciary duty, estoppel, your claims, if any as a
“whistleblower”, defamation, invasion of privacy, negligence, assault, battery, intentional or
negligent infliction of emotional distress, fraud, misrepresentation, retaliation or reprisal,
constructive discharge, false imprisonment, interference with contractual or business
relationships, improper discharge (based on contract, common law, or statute, including any
federal, state or local statute or ordinance prohibiting discrimination or retaliation in
employment), violation of the United States Constitution, the Minnesota Constitution, the
California Constitution, the Age Discrimination in Employment Act, 29 U.S.C. § 621 et
seq., the Minnesota Human Rights Act, Minn. Stat. § 363.01 et seq., Title
25 of the Code of Alabama, the California Fair Employment and
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February 16, 2011
February 16, 2011
Housing Act, Cal. Gov’t Code § 12900 et seq., the Xxxxx Civil Rights Act, Cal. Civ.
Code § 51 et seq., the California Law on Equal Pay, Cal. Labor Code § 1197.5, Title
VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., the Americans with
Xxxxxxxxxxxx Xxx, 00 X.X.X. § 00000 et seq., the Employee Retirement Income
Security Act of 1976, 29 U.S.C. § 1001 et seq., the Family and Medical Leave Act,
29 U.S.C. § 2601 et seq., 42 U.S.C. § 1981, the Equal Pay Act, the Worker
Adjustment and Retraining Notification Act, the Xxxxxxxx-Xxxxx Act, the Genetic Information
Nondiscrimination Act, the Fair Credit Reporting Act, the Xxxxx Xxxxxxxxx Fair Pay Act of
2009, any claim arising under workers’ compensation non-interference or non-retaliation
statutes such as Minn. Stat. § 176.82, and any claim for retaliation or discrimination based on
sex, race, color, creed, religion, age, national origin, marital status, sexual orientation,
genetic information, disability, status with regard to public assistance or any other protected
class, or sexual or other harassment.
c. This release also includes all rights you have under Cal. Civil Code § 1542, which states
that: “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.” You agree that this waiver covers all claims whether or
not you now know about such claims. You hereby waive any and all relief not provided for in this
Agreement. You understand and agree that, by signing this Agreement, you waive and release any
past, present, or future claim to employment with SurModics.
d. You affirm that you have not caused or permitted, and to the full extent permitted by law
will not cause or permit to be filed, any charge, complaint, or action of any nature or type
against SurModics, including but not limited to any action or proceeding raising claims arising in
tort or contract, or any claims arising under federal, state, or local laws, including
discrimination laws. Excluded from this covenant are any claims which cannot be waived by law,
including, without limitation, the right to file a charge with or participate in any investigation
conducted by the Equal Employment Opportunity Commission (“EEOC”) or any state or local agency.
Nothing in this Agreement is intended to interfere with such right. You agree to waive, however,
your right to any monetary recovery should the EEOC or any state or local agency pursue any claims
on your behalf.
e. You are not, by signing this Agreement, releasing or waiving (1) any vested interest you
may have in any 401(k) or employee stock purchase plan by virtue of your employment with SurModics,
(2) any rights or claims that may arise after the Agreement is signed, (3) the post-employment
benefits and payment specifically promised to you under this Agreement, (4) the right to institute
legal action for the purpose of enforcing the provisions of this Agreement, or (5) the right to
file a claim for unemployment benefits.
f. SurModics, as used in this Section 3, shall mean SurModics, Inc. and its related entities,
insurers, and its and their present and former officers, directors, shareholders, trustees,
employees, agents, attorneys, representatives and consultants, and the successors and assigns of
each, whether in their individual or official capacities, and the current and former trustees or
administrators of any pension or other benefit plan applicable to the employees or former employees
of SurModics, in their official and individual capacities.
4. Notice of Right to Consult Attorney and Forty-Five (45) Day Consideration Period.
By signing this Agreement, you acknowledge and agree that SurModics has informed you by this
Agreement that (1) you have the right to consult with an attorney of your choice prior to signing
this
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February 16, 2011
February 16, 2011
Agreement, and (2) you are entitled to forty-five (45) days from the receipt of this Agreement and
Disclosure, not counting the day upon which you receive them, to consider whether the terms of this
Agreement are acceptable to you. SurModics encourages you to use the full 45-day period to
consider this Agreement but you have the right, if you choose, to sign this Agreement prior to the
expiration of the forty-five (45) day period.
5. Notice of Right to Rescind this Agreement. You are hereby notified of your right
to rescind the release of all claims contained in Section 3 with within fifteen (15) calendar days
of your signing this Agreement. This Agreement will not become effective unless and until the
15-day rescission period has expired without your rescission of it. In order to be effective, the
rescission must
a. Be in writing; and
b. Delivered to Xxx Xxxxxxx, SurModics, Inc., 0000 Xxxx 00xx Xxxxxx, Xxxx Xxxxxxx,
XX 00000-0000, by hand or mail within the required period.
This Agreement will be effective upon the expiration of the 15-day period without rescission. You
understand that if you rescind any part of this Agreement in accordance with this Section 6, you
will not receive the separation pay or benefits described in Section 2 and you will be obligated to
return any such benefits and payment if already received.
6. Return of Property. By signing this Agreement, you acknowledge and agree that all
documents and materials relating to the business of, or the services provided by, SurModics are the
sole property of SurModics. By signing this Agreement you further agree and represent that you
have returned to SurModics all of its property, including but not limited to, all customer records
and other documents and materials, whether on computer disc, hard drive or other form, and all
copies thereof, within your possession or control, which in any manner relate to the business of,
or the duties and services you performed on behalf of SurModics.
7. Confidential and Proprietary Information. By signing this Agreement, you
acknowledge and agree that you have had access in your employment with SurModics to confidential
and proprietary information of SurModics and further acknowledge and agree that the release or
disclosure of any confidential or proprietary information of SurModics will cause SurModics
irreparable injury. By signing this Agreement, you acknowledge that you have not used or
disclosed, and agree that you will not at any time use or disclose, to any other entity or person,
directly or indirectly, any confidential or proprietary information of SurModics. For purposes of
this Agreement, the term “confidential or proprietary information” shall include, but not be
limited to, customer lists and information pertaining to customer lists; contact lists; and
information about the personal or business affairs of SurModics’ customers, vendors, or employees.
8. Non-Disparagement. You agree not to defame, or denigrate the reputation,
character, image, products or services of SurModics.
9. Confidentiality. You agree not to disclose or discuss, directly or indirectly, in
any manner whatsoever, any information regarding either; (1) the contents and terms of this
Agreement, or (2) the substance and/or nature of any dispute between SurModics and any employee or
former employee, including yourself. You agree that the only people with whom they
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may discuss this confidential information are your legal and financial advisors and your spouse,
provided they agree to keep the information confidential, or as otherwise required by law.
10. Non-Competition. You acknowledge and reaffirm your commitment to adhere to the
Invention/Non-Disclosure Agreement you previously entered with SurModics, which is attached to this
agreement (the “Non-Competition Agreement”). You agree that that Non-Competition Agreement
survives your separation from employment, is unaffected by this Agreement and remains binding upon
you according to its terms.
11. Remedies. If you breach any term of this Agreement, SurModics shall be entitled
to its available legal and equitable remedies, including but not limited to suspending and
recovering any and all payments and benefits made or to be made under this Agreement. If SurModics
seeks and/or obtains relief from an alleged breach of this Agreement, all of the provisions of this
Agreement shall remain in full force and effect.
12. Non-Admission. It is expressly understood that this Agreement does not
constitute, nor shall it be construed as, an admission by SurModics or you of any liability or
unlawful conduct whatsoever. SurModics and you specifically deny any liability or unlawful
conduct.
13. Successors and Assigns. This Agreement is personal to you and may not be assigned
by you without the written agreement of SurModics. The rights and obligations of this Agreement
shall inure to the successors and assigns of SurModics.
14. Law Governing. This Agreement shall be governed and construed in accordance with
the laws of the State of Minnesota.
15. Full Agreement. This Agreement contains the full agreement between you and
SurModics and may not be modified, altered, or changed in any way except by written agreement
signed by both parties. The parties agree that this Agreement supersedes and terminates any and
all other written and oral agreements and understandings between the parties, except for the
Non-Competition Agreement, and any stock option grant agreements between you and SurModics, which
shall remain in full force and effect according to their terms.
16. Acknowledgment of Payment. By signing this agreement, you represent and confirm
that you have been fully paid for all wages, overtime, commissions, bonuses, and other compensation
that you earned during my employment with SurModics or that were due to you in connection with the
termination of that employment, including without limitation any amounts owed to you under the
SurModics Pharmaceuticals cash retention program implemented in December 2010. You also represent
and confirm that during your employment with SurModics you received all leaves of absence that you
requested and to which you were entitled under the Family Medical Leave Act or any other law.
17. Taxes. The payments under this Agreement are intended to be exempt from, or to
comply with, the provisions of Section 409A of the Internal Revenue Code and the
interpretative guidance thereunder, including the exceptions for short-term deferrals, separation
pay arrangements, reimbursements, and in-kind distributions, and shall be administered accordingly.
SurModics makes no representation or warranty to you regarding the tax treatment of any payment
hereunder and you will be solely responsible for taxes in connection with any such payments.
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February 16, 2011
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18. Acknowledgment of Reading and Understanding. By signing this Agreement, you
acknowledge that you have read this Agreement, including the release of claims contained in Section
3, and understand that the release of claims is a full and final release of all of your rights
that you may have to any relief of any kind for any claims against SurModics (as defined in Section
3). By signing, you also acknowledge and agree that you have entered into this Agreement
knowingly and voluntarily.
* * * * *
After you have reviewed this Agreement and obtained whatever advice and counsel you consider
appropriate regarding it, please evidence your agreement to the provisions set forth in this
Agreement by dating and signing both copies. Please then return one copy of this Agreement in the
envelope provided. You should keep the other copy for your records.
Sincerely,
SURMODICS, INC.
By
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/s/ Jan Xxxxx Xxxxxxx
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| Jan Xxxxx Xxxxxxx | ||||
| Vice President, Human Resources |
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February 16, 2011
February 16, 2011
ACKNOWLEDGMENT AND SIGNATURE
By signing below, I acknowledge and agree to the following:
| • | I have had adequate time to consider whether to sign this Separation Agreement and Release. | |
| • | I have read this Separation Agreement and Release and the Disclosure carefully. | |
| • | I understand and agree to all of the terms of the Separation Agreement and Release and the Disclosure. | |
| • | I am knowingly and voluntarily releasing my claims against SurModics. | |
| • | I have not, in signing this Agreement, relied upon any statements or explanations made by SurModics except as for those specifically set forth in this Separation Agreement and Release. | |
| • | I intend this Separation Agreement and Release to be legally binding. |
Accepted this 16 day of February, 2011.
/s/ Xxxxxx X. Xxxxx
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Signature |
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Eugence X. Xxxxx
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Print Name |
