EXHIBIT 10.1
SEPARATION AND SEVERANCE AGREEMENT
This Separation and Severance Agreement ("Agreement") is made and
entered into as of this 19th day of March, 2001, by and between Xxxxx X.
Xxxxxx, ("Xxxxxx" or "Employee") and Computerized Thermal Imaging, Inc. a
Nevada corporation ("CTI" or "Employer").
RECITALS
X. Xxxxxx is employed by CTI as its President and Chief Operating
Officer ("COO"). Packer is also a member of CTI's Board of Directors. Packer
is also involved in his capacity as President and COO in the preparation and
completion of Module 5 for submittal to the United States Food and Drug
Administration ("FDA").
B. CTI and Packer have agreed that Packer's employment with CTI shall
be terminated effective December 31, 2001. Both parties desire to set forth
their understandings and agreements with respect to Packer's termination of
employment, along with other matters relating to that termination.
NOW, THEREFORE, based upon the following, and for good and valuable
consideration, the receipt and sufficiency of which is acknowledged by each
party, it is agreed as follows:
1. Packer's Resignation as President, COO and Board Member: Packer
will resign as President, COO, and member of the Board of Directors effective
upon both the execution of this Agreement and upon the completion of
preparation of Module 5 for submittal to the FDA.
2. Duties After Resignation/Term of Continued Employment: After his
resignation as President, COO and member of the Board of Directors, Packer
will continue to be employed by CTI until December 31, 2001, with his
responsibilities limited to working on FDA PMA Module 5 on an as needed basis,
as reasonably determined by CTI, even on a full-time basis when so warranted.
3. Salary and Benefits: Packer will be paid his current salary (1)
through December 31, 2001. Packer will receive his current xxxxxxxx0 through
December 31, 2001 and will continue to receive those benefits through June 30,
2002, at CTI's expense. However, if prior to June 30, 2002, Packer obtains
full-time employment that entitles him to comparable benefits from another
employer, CTI's obligation to provide benefits will terminate as of the date
that Packer begins such employment.
4. Stock Options:
(a) As of the effective date of this Agreement, Packer owns options to
purchase 1,500,000 shares of CTI's Common Stock, $0.001 par value per share.
500,000 options were granted to Packer in a Stock Option Agreement dated April
30, 1997 (the "1997 Stock Option Agreement"), and the remaining 1,000,000
options were granted to Packer in an Employee Stock Option Agreement dated
August 2, 2000 (the "2000 Stock Option Agreement"). All 500,000 options
----------------------------------
(1) "Current salary" and "current benefits" are defined as those that Packer
receives under his current employment agreemeent with CTI effective as of
April 30, 2000.
granted in the 1997 Stock Option Agreement are fully vested. The first
250,000 of options granted in the 2000 Stock Option Agreement are also fully
vested. The terms and provisions of this Agreement amend and supersede
certain provisions of both the 1997 Stock Option Agreement and the 2000 Stock
Option Agreement.
(b) The vesting of the unvested stock options granted to Packer in the
2000 Stock Option Agreement shall be accelerated, as the case may require, so
that:
(1) The 250,000 options scheduled to vest on April 30, 2001
shall vest upon execution of this Separation Agreement;
(2) The 250,000 options scheduled to vest on April 30, 2002,
shall vest on April 30, 2001; and
(3) The 250,000 options scheduled to vest on April 30, 2003
shall vest on December 31, 2001.
(c) The exercise price of the 1,000,000 options granted to Packer in the
2000 Stock Option Agreement is hereby re-priced to market as of March 6, 2001.
The exercise price of such options shall be $2.15 per share as determined by
averaging the closing bid price of CTI stock for the 5 trading days preceding
March 6, 2001.
(d) Notwithstanding Packer's termination of employment and
notwithstanding any provision of any other agreement or plan document (not
including this Agreement) governing the expiration of any option owned by
Packer, options owned by Packer shall expire as follows:
(1) On August 2, 2010 with respect to the options covering
1,000,000 common stock shares, or any unexercised portion
thereof, granted in the 2000 Stock Option Agreement; and
(2) In accordance with the terms of the 1997 Stock Option
Agreement with respect to the options covering the 500,000
common stock shares, or any unexercised portion thereof.
(e) Notwithstanding Section (d)(1) of this Agreement covering the
1,000,000 common stock options, Packer must exercise any such vested options
within 90 days after the first time after the date of this Agreement when the
bid price of CTI stock closes at $5 or more for 5 consecutive trading days.
If the 90-day exercise requirement is triggered prior to submission of Module
5, CTI will toll the exercise requirement until Module 5 is submitted and the
90 days shall begin to run as of such submission. Any such options that vest
after the 90-day exercise requirement has been triggered shall, upon vesting,
be subject to a 90-day exercise requirement that will be triggered if the bid
price of CTI stock closes at or above $5 for 5 consecutive trading days after
such vesting. This 90-day exercise requirement shall be tolled if CTI imposes
any employee trading prohibition that applies to Packer. The tolling period
shall be equal to the duration of the employee trading prohibition. Any such
options, whether or not vested, not exercised in accordance with the
provisions of this Section (e), shall immediately terminate notwithstanding
the tenure of such options as outlined in Section 4(d)(1) of this Agreement.
5. Outplacement Service: CTI will reimburse Packer for the
reasonable cost of an outplacement service for a period of three consecutive
months ending no later than June 30, 2002.
6. Cash Payment: CTI will pay Packer a one-time cash payment of
$100,000 upon execution of this Separation Agreement. Such payment will be
subject to employment tax withholding in accordance with CTI's normal payroll
practices. However, CTI shall, at Packer's request, reduce Packer's
obligation for federal and state income taxes withheld on such payment and CTI
shall have no obligation with respect to such reduction in income taxes
withheld.
7. Office Equipment: Packer will retain, at no charge to Packer,
office equipment previously provided by CTI, including a laptop computer and
office chair.
8. Photonic Stimulator: Packer will retain, at no charge to Packer,
the Photonic Stimulator previously provided by CTI.
9. Non-Disparagement: Other than as compelled by law, neither CTI
nor Packer will communicate to or discuss with any person or entity anything
that could be construed as disparaging or negative towards the other, either
orally or in writing.
10. Press Release: CTI and Packer hereby agree that the press
release issued March 8, 2001 represents a neutrally worded and mutually
agreeable announcement of Packer's resignation.
11. Confidentiality: CTI and Packer shall hold in strict confidence
the terms of this Agreement and will not use to the detriment of the other any
data, or information obtained in connection with this Agreement. The terms of
this Agreement may be disclosed, however, if required in furtherance of any
filings that CTI makes with the Securities and Exchange Commission and/or any
other governmental entity for the purpose of state or federal regulatory
reporting requirements that are imposed upon CTI as a result of CTI's
business. Disclosure of the terms of this Agreement is limited to regulatory
reporting to governmental entities during the ordinary course of CTI's
business and can only be disclosed if required to support a filing. With the
exception of the above, the terms of this Agreement may only be disclosed
pursuant to valid court order, subpoena or such other requirements as are
imposed by law. In the event that one party is served with such process or is
otherwise required to disclose the Agreement or its terms to support a
regulatory filing, written notice of such service or requirement shall be
given to the other party within ten (10) days after receipt of service or
prior to the regulatory filing, as the case may require. If any dispute
arises regarding the disclosure of confidential information, the parties agree
that the nondisclosing party shall be entitled, without showing actual damage,
to a temporary or permanent injunction restraining the use of the confidential
information for any purpose and that no bond or other security shall be
required in connection with such action, unless a court of competent
jurisdiction determines the bond to be jurisdictional, then in the amount not
to exceed One Hundred Dollars ($100.00). If any dispute arises concerning the
rights or obligations of any party under this Agreement, such rights and
obligations shall be enforceable by a decree of specific performance.
12. CTI's Release:
(a) CTI hereby releases Packer from any and all employment duties
in connection with Packer's performance as President, COO, and member of the
Board of Directors of CTI. CTI does not release Packer from any liability
that is found in connection with his duties as President, COO and member of
the Board of Directors in any lawsuit or claim that may be filed in which he
is named as a defendant, except and to the extent that Packer is entitled to
indemnification protection (as a former officer and director of CTI) in
accordance with the provisions of Article VI of CTI's Bylaws dated January 15,
1998. To the extent of CTI's indemnity obligation under said Bylaws, CTI does
forever release Packer from any such liabilities, losses, damages, and
expenses. CTI covenants and agrees to provide to and for Packer the
indemnification protection set forth in said Bylaws. No modifications or
amendments to said Bylaws after the date of this Agreement will impair or
reduce, in any way, Packer's right to indemnification as currently contained
in said Bylaws.
(b) Except for claims based upon a breach of this Agreement, the
2000 Stock Option Agreement, and the 1997 Stock Option Agreement, and the
Employment Agreement dated effective April 30, 2000, and in consideration of
the mutual obligations set forth in this Agreement, CTI hereby releases and
discharges Packer from any and all claims, liens, demands or liabilities
whatsoever, in connection with his duties as President, COO and member of the
Board of Directors of CTI, except those set forth in paragraph (a) above.
These include claims, liens, demands, or liabilities, whether known or
unknown, or suspected to exist by CTI, as well as those that are known,
anticipated, suspected or disclosed. This includes, without limitation, any
claims, liens, demands, or liabilities in connection with Packer's employment
as President, COO and member of the Board of Directors pursuant to any
federal, state, or local laws, regulations or other requirements.
13. Packer's Release:
(a) Except for claims based upon a breach of this Agreement, the
2000 Stock Option Agreement, and the 1997 Stock Option Agreement, and the
Employment Agreement dated effective April 30, 2000, and in consideration of
receiving the compensation enumerated in this Agreement, Packer hereby
releases and discharges CTI and its officers, directors, stockholders,
employees, agents, subsidiaries, assigns, insurers, and affiliates from any
and all claims, liens, demands, or liabilities whatsoever, that he ever had or
may have had against CTI arising out of his duties as President, COO and
member of the Board of Directors. This includes, without limitation, any
claims, liens, demands, or liabilities in connection with Packer's duties as
President, COO and member of the Board of Directors and the termination of
that employment, pursuant to any federal, state, or local employment laws,
regulations, executive orders, or other requirements.
(b) Packer does not release CTI from its obligation to defend or
indemnify him (as described in section 12(a) above) if he is named in a
lawsuit or other court action which arose out of the course and scope of his
duties as President, COO and Board Member of CTI.
(c) Packer therefore waives all unknown, unanticipated,
unsuspected, and undisclosed claims, liens, demands or liabilities, as well as
those that are known, anticipated, suspected or disclosed, in connection with
his duties as President, COO and member of the Board of Directors, with the
exception of the indemnity obligation referenced in sub paragraph (b) above.
(d) Nothing in this Agreement is intended to waive Packer's
entitlement to vested benefits under any pension or 401(k) plan or other
benefit plan provided by CTI. In addition, the foregoing release does not
waive claims that Packer could make, if available, for unemployment or
workers' compensation benefits.
14. Non-Compete: Packer shall not engage in, be employed by,
participate in, or hold more than a one percent equity ownership interest in
(except for stock publicly traded on any recognized stock exchange), any
business venture competitive with the business (then conducted by CTI or its
subsidiaries or affiliates as of December 31, 2001) for a period of two (2)
years after his employment with CTI ends, through and including December 31,
2003.
15. Outside Employment: Packer may pursue other employment
opportunities so long as they do not interfere with his obligations to CTI
under this Agreement.
16. Entire Agreement: The foregoing contains the entire agreement of
the parties, and supersedes all prior negotiations. No modifications to this
Agreement will be binding unless such modifications are in writing and signed
by both parties. In the event of any inconsistencies between this Agreement
and the Employment Agreement dated effective April 30, 2000, the provisions of
this Agreement shall supersede and be controlling. In the event of any
inconsistencies between this Agreement and the 1997 Stock Option Agreement or
the 2000 Stock Option Agreement, the provisions of this Agreement shall
supersede and be controlling.
17. Binding Effect: This Agreement shall inure to and be binding
upon the parties, their successors, heirs, representatives and assigns;
provided, however, that upon Packer's death, this Agreement shall terminate,
except as to any payment obligations from CTI to Packer or any stock options
that may still exist. In the event of Packer's death, Packer hereby
designates the Xxxxx X. Xxxxxx Family Living Trust (created by the Xxxxx X.
Xxxxxx Family Living Trust Agreement dated March 13, 1998) as beneficiary of
all of his stock options referenced in this Agreement and as beneficiary of
his rights under this Agreement to receive ongoing salary payments through
December 31, 2001. Also, in the event of Packer's death, Packer's family
shall continue to be entitled to ongoing coverage, at CTI's sole expense,
under CTI's health care plan, through June 30, 2002.
18. Representations and Warranties: CTI represents and warrants as
follows, and covenants and agrees that CTI will be estopped from taking a
position at any time in the future contrary to the representations and
warranties set forth in this Agreement:
(a) CTI has full power and authority to enter into this Agreement.
All shareholder and director actions and authorizations required for the
approval of this Agreement and the consummation of the transactions
contemplated hereby have been duly taken. The person executing this
Agreement in behalf of CTI has been duly authorized to execute and deliver
this Agreement for and in behalf of CTI. This Agreement is a valid and
binding obligation of CTI, enforceable in accordance with its terms.
(b) Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby will (i) violate,
conflict with, or require any consent under, or result in a breach of any
provisions of, or constitute a default under any of the terms, conditions, or
provisions of, the Articles of Incorporation or Bylaws of CTI or any contract
by which CTI may be bound; or (ii) violate any order, writ, injunction,
decree, statute, rule, or regulation applicable to the Company or any of the
stock options referenced herein. No consent or approval by, notice to, or
registration with any governmental or administrative authority or board or
third party is required in connection with the execution and delivery by CTI
of this Agreement or the performance by CTI of any of the transactions
contemplated hereby.
(c) The 500,000 options granted in the 1997 Stock Option Agreement are
valid and enforceable options, notwithstanding the fact that the 1995 Stock
Option Plan was not approved by CTI's shareholders. The provisions of this
Agreement relating to the 1,000,000 stock options owned by Packer under 2000
Stock Option Agreement have been duly authorized and approved by the plan
"Administrator" for CTI's 1997 Stock Option and Restricted Stock Plan, and
such provisions are proper and permitted under the terms and provisions of
said plan. The 1,000,000 options granted in the 2000 Stock Option Agreement
are valid and enforceable under applicable law and under the terms and
provisions of CTI's 1997 Stock Option and Restricted Stock Plan.
(d) The Company has filed with the Securities and Exchange Commission
proper and complete registration statements on Form S-8 which has resulted in
all of the common stock underlying Packer's 1,500,000 stock options to be
fully registered.
19. Indemnity: Each party (the "indemnitor") covenants and agrees to
indemnify, defend, reimburse, and hold the other party (the "indemnitee")
harmless from, against, and with respect to any claims, losses, damages, and
expenses arising from a breach of a covenant, representation, or warranty of
the indemnitor under this Agreement.
20. Invalidity: In the event that any part of his Agreement is found
to be void, the remaining provisions of this Agreement shall nevertheless be
binding with the same effect as though the void part was deleted.
21. Legal Fees: In the event that any action or proceeding is
instituted to interpret or enforce the terms of this Agreement, the prevailing
party shall be entitled to its costs and attorneys' fees, in addition to any
other relief it may obtain or be entitled to.
22. Utah Law: This Agreement shall be controlled, construed and
enforced in accordance with the laws of the State of Utah. The parties agree
that the venue of any action arising out of his Agreement shall be in Xxxxx
County, Utah.
23. Counterparts: This Agreement may be executed in multiple
counterparts which collectively shall be considered one and the same
instrument.
EMPLOYER: EMPLOYEE:
Computerized Thermal Imaging, Inc.
By:/s/Xxxxxxx X. Xxxxxx /s/Xxxxx X. Xxxxxx
-------------------------------- --------------------------------
Xxxxxxx Xxxxxx, Chairman and CEO Xxxxx X. Xxxxxx, individually
