SEPARATION AGREEMENT AND RELEASE
Exhibit 10.1
SEPARATION AGREEMENT AND RELEASE
THIS SEPARATION AGREEMENT AND RELEASE (“Agreement”), is by and between Zynex Medical, Inc. and Zynex, Inc. (hereinafter referred to as “Employer”) and Xxxxx X. Xxxxxxx (hereinafter referred to as “Employee”).
For and in consideration of the mutual promises and covenants hereinafter set forth, the parties agree as follows:
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Nine months’ (the “Severance Period”) severance pay totaling One Hundred Twenty-Six Thousand Dollars ($126,000.00), less applicable deductions and withholdings, payable in nine monthly checks commencing October 1, 2010.
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Waiver of the non-solicitation of Zynex Medical, Inc. customers or clients covenant set forth in Paragraph 2 of the Confidentiality, Non-Solicitation and Non-Interference Agreement executed by Employee on August 26, 2009.
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All of Employee’s existing stock options under Employer’s 2005 Stock Option Plan will vest September 1, 2010 and may be exercised on or before August 23, 2011.
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a.
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all claims arising out of or relating to Employee’s employment with Employer or the termination of that employment;
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b.
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all claims arising out of or relating to any statements, actions, or omissions of Employer;
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c.
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all claims for any alleged unlawful discrimination, harassment, retaliation or reprisal, or other alleged unlawful practices arising under any federal, state or local statute, ordinance, or regulation, including without limitation, claims under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, (“ADEA”), the Americans with Disabilities Act, 42 U.S.C. § 1981, the Employee Retirement Income Security Act, the Equal Pay Act and the Rehabilitation Act;
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d.
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all claims for alleged wrongful discharge, breach of contract, breach of implied contract, failure to keep any promise, breach of a covenant of good faith and fair dealing, breach of fiduciary duty, estoppel, defamation, infliction of emotional distress, fraud, misrepresentation, negligence, harassment, retaliation or reprisal, constructive discharge, assault, battery, false imprisonment, invasion of privacy, interference with contractual or business relationships, any other wrongful employment practices, and violation of any other principle of common law;
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e.
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all claims for reinstatement, back pay, front pay, commissions, compensatory damages, damages for alleged personal injury, liquidated damages, vacation pay, expense reimbursements and punitive damages; and
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f.
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all claims for attorneys’ fees, costs and interest.
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Employee does not waive any claims that cannot be waived as a matter of law, or any claims under this Agreement. Employee agrees that the consideration described in Paragraph 2 above is consideration to which he would not otherwise be entitled without signing this Agreement and that payment of this consideration is in exchange for Employee’s release of the Released Claims.
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By executing this Agreement, he waives all rights or claims, if any, that he may have against Employer under the ADEA;
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b.
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That this Agreement, including but not limited to this Paragraph 5, has been written in a manner calculated to be understood by Employee and is in fact understood by him;
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c.
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That the aforementioned waiver reflects specifically, but is not limited to, all rights or claims, if any, that Employee may have against Employer arising under the ADEA;
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d.
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That Employee is not waiving rights and claims that he may have under the ADEA against Employer that may arise after the date on which this Agreement is executed;
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e.
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That Employee is waiving rights and claims that he may have under the ADEA, if any, only in exchange for consideration in addition to anything of value to which he is already entitled;
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f.
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That Employee has been and is hereby advised to consult with an attorney prior to executing this Agreement;
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g.
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That Employee has been given a period of 21 days within which to consider this Agreement; and,
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h.
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That Employee has been given a period of 7 days following the execution of this Agreement to revoke this Agreement, and this Agreement shall not become effective or enforceable until the revocation period has expired. Employee should return the executed Agreement to Xxxxxx Xxxxxxxxx, Employer’s President and Chief Executive Officer.
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7. Indemnification. Employer agrees to continue to indemnify Employee in the defense of the lawsuit captioned Xxxxxxxx and Xxxxx Xxxxxxx v. Zynex, Inc., et al., pending in the United States District Court for the District of Colorado.
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Solicitation, and Non-Interference Agreement. Employee acknowledges and agrees that the provisions set forth in Paragraphs 1 and 3 of the Confidentiality, Non-Solicitation and Non-Interference Agreement executed by Employee on August 26, 2009, survive the termination of Employee’s employment with Employer.
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a.
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Employee acknowledges that he will have the opportunity to consult with an attorney within the period mentioned in paragraph 5h; and
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b.
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Employee has read this Agreement in it entirety and understands its terms.
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14. Applicable Law. This Agreement shall be interpreted according to the laws of the State of Colorado.
16. Attorneys’ Fees. In the event that any party is required to enforce the terms of this Separation Agreement and Release in any court or other proceeding, the prevailing party shall be entitled to recover all costs and expenses it incurs in any such proceeding, including reasonable attorneys’ fees and costs.
IN WITNESS WHEREOF, the parties have executed this Confidential Separation Agreement and Release on the day and year first above written.
EMPLOYEE:
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/s/ Frtiz G. Xxxxxxx
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Xxxxx X. Xxxxxxx
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Date: August 23, 2010
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WITNESS:
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/s/ Xxxxxxxx Xxxxx
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Date: August 23, 2010
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ZYNEX MEDICAL, INC.
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ZYNEX, INC.
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/s/ Xxxxxx Xxxxxxxxx
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Xxxxxx Xxxxxxxxx, President and CEO
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Date: August 23, 2010
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