Exhibit 10.33
SEVERANCE AND RELEASE AGREEMENT
between
Xxxxxx Xxxxx
and
CLOSURE MEDICAL CORPORATION
This SEVERANCE AND RELEASE AGREEMENT ("Agreement") is made and entered into
by Xxxxxx Xxxxx ("Xxxxx") and Closure Medical Corporation ("Closure").
Throughout the remainder of this Agreement, Xxxxx and Closure may be
collectively referred to as "the parties."
Xxxxx' employment with Closure terminated effective February 18, 2002.
Closure is willing to provide the benefits described herein in exchange for
Xxxxx' entering into this Agreement.
Closure hand delivered this Agreement to Xxxxx on February 26, 2002.
Closure desires that Xxxxx have adequate time and opportunity to review and
understand the consequences of entering into it. Accordingly, Closure advises
Xxxxx: (i) to consult with his attorney prior to executing it; and (ii) that he
has at least twenty-one (21) days within which to consider it. In the event that
Xxxxx does not return an executed copy of this Agreement to Xxxx Xxxxx by March
22, 2002, it and the obligations of Closure herein shall become null and void.
Xxxxx represents that he has carefully read the entire Agreement,
understands its consequences, and voluntarily enters into it.
In consideration of the above and the mutual promises set forth below,
Closure and Xxxxx agree as follows:
1. TERMINATION. Xxxxx' employment terminated effective midnight, February
18, 2002.
2. SEVERANCE PAY. Closure will pay Xxxxx xxxxxxxxx pay in an amount equal
to six (6) months of his current salary (eighty thousand dollars ($80,000.00)),
payable in accordance with Closure's regular payroll practices and beginning
with the first regular pay day immediately following the expiration of the
revocation period set forth in Section 10 below.
The compensation and benefits afforded under this Agreement are in lieu of
any other severance benefits to which Xxxxx might otherwise be entitled.
3. Should Xxxxx obtain full-time employment, the continuation of benefits
hereunder shall terminate and Closure shall pay the remaining severance pay in a
lump sum.
4. CONTINUATION OF BENEFITS. Closure shall continue coverage for Xxxxx in
Closure's current health insurance plan (medical, dental & prescription drugs)
for six (6) months following the termination of Xxxxx' Employment Agreement,
dated February 18, 1998. If Xxxxx' participation in any such benefit plan is
barred by the terms of the plan, then Closure shall pay Xxxxx, in cash, the
amount of the premium through the six month period. Should Xxxxx become covered
by another plan during the six month period this coverage would cease.
5. STOCK OPTIONS. Stock options, if any, will be administered in accordance
with the terms of the applicable stock option plan and stock option grant,
including, but not limited to, the terms governing the period of time during
which the optionee may exercise the options. Xxxxx' ability to exercise vested
options shall continue ninety (90) days following the termination of the
Employment Agreement.
6. BONUS. Closure will pay Xxxxx his annual bonus for the year 2001, as
provided for, and calculated in good faith as provided for in his Employment
Agreement with Closure dated February 18, 1998.
7. ACCRUED PERSONAL DAYS. Closure will pay Xxxxx for accrued but untaken
personal days through the February 18 date. Personal time will be pro-rated
through the February 18 date.
8. RELEASE. In consideration of the benefits conferred by this SEVERANCE
AND RELEASE AGREEMENT, XXXXX (ON BEHALF OF HIMSELF AND HIS ASSIGNS, HEIRS AND
OTHER REPRESENTATIVES) RELEASES CLOSURE AND ITS PAST, PRESENT AND FUTURE OWNERS,
PARENTS, SUBSIDIARIES, AFFILIATES, PREDECESSORS, SUCCESSORS, ASSIGNS, OFFICERS,
DIRECTORS, STOCKHOLDERS, EMPLOYEES, EMPLOYEE BENEFIT PLANS, PLAN ADMINISTRATORS
AND AGENTS FROM ALL CLAIMS AND WAIVES ALL RIGHTS KNOWN OR UNKNOWN, HE MAY HAVE
OR CLAIM TO HAVE RELATING TO HIS EMPLOYMENT WITH CLOSURE, ITS PARENTS,
SUBSIDIARIES OR AFFILIATES OR HIS SEPARATION THEREFROM arising before the
execution of this Agreement, including but not limited to claims for: (i)
discrimination, harassment or retaliation arising under federal, state or local
laws prohibiting age (including but not limited to claims under the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, and the Older
Workers Benefit Protection Act of 1990 (OWBPA)), sex, national origin, race,
religion, disability, veteran status or other protected class discrimination,
harassment, or retaliation for protected activity; (ii) Employee Retirement
Income Security Act of 1974, as amended, ("ERISA") and similar federal, state,
and local laws; (iii) wrongful termination law; (iv) state law tort or express
or implied contract law; and (v) attorneys' fees.
9. COVENANT NOT TO XXX. Except as prohibited by law, in consideration of
the benefits conferred by this Agreement, Xxxxx will not xxx Closure or its
past, present or future owners, parents, subsidiaries, affiliates, predecessors,
successors, assigns, officers, directors, stockholders, employees, employee
benefit plans, plan administrators, or agents on any of the released claims or
join as a party with others who may xxx on any such claims.
10. COMPANY INFORMATION AND PROPERTY. Xxxxx shall not at any time after his
employment relationship with Closure terminates disclose, use or aid third
parties in obtaining or using any confidential or proprietary Closure
information. Confidential or proprietary information is information relating to
Closure or any aspect of its business which is not generally available to the
public, Closure's competitors, or other third parties, or ascertainable through
common sense or general business or technical knowledge. Nothing in this
Agreement shall relieve Xxxxx from any obligations under any previously executed
confidentiality, proprietary information or secrecy agreements.
All records, files or other materials maintained by or under the control,
custody or possession of Closure or its agents in their capacity as such shall
be and remain Closure's property. If he hasn't already done so and upon
Closure's request, Xxxxx shall: (i) return all Closure's property (including,
but not limited to, records, files, documents, company manuals, credit cards and
keys) which he received in connection with his employment; (ii) bring all such
records, files, and other materials up to date before returning them; and (iii)
fully cooperate with Closure in winding up his work and transferring that work
to those individuals designated by Closure.
11. REVOCATION PERIOD. Xxxxx may revoke this Agreement during the seven (7)
day period immediately following his execution of it. This Agreement will not
become effective or enforceable until the revocation period has expired. To
revoke this Agreement, a written notice of revocation must be delivered to: Xxxx
Xxxxx, Closure Medical Corporation, 0000 Xxxxxx Xxxxx Xxxx, Xxxxxxx, Xxxxx
Xxxxxxxx 00000.
12. DISCLAIMER OF LIABILITY. This Agreement is intended to avoid all
litigation relating to Xxxxx' employment with Closure and his separation
therefrom; therefore, it is not to be construed as Closure's admission of any
liability to Xxxxx, liability which Closure denies.
13. CONFIDENTIALITY/NON-DISPARAGEMENT. The terms and provisions of this
Agreement are confidential and Xxxxx shall not disclose them to third parties,
except as required by law. Notwithstanding the above, Xxxxx may reveal the terms
and provisions of this Agreement to members of his immediate family or to an
attorney whom he may consult for legal advice, provided that such persons agree
to maintain the confidentiality of this Agreement. For purposes of employment
and consulting assignments, Xxxxx may need to recognize the Notice
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of Nonrenewal but will communicate nothing false or nothing which denigrates,
disparages, defames or casts aspersions on Closure, its owners, parents,
subsidiaries, affiliates, predecessors, successors, assigns, officers,
directors, stockholders, employees or agents.
14. WAIVER OF BREACH. Closure's or Xxxxx' waiver of any breach of a
provision of this Agreement shall not waive any subsequent breach by the other
party.
15. ENTIRE AGREEMENT. Except as expressly provided herein, this Agreement
supersedes all other understandings and agreements, oral or written, between the
parties with respect to its subject matter, and constitutes the sole agreement
between the parties with respect to its subject matter. Each party acknowledges
that no representations, inducements, promises or agreements, oral or written,
have been made by any party or by anyone acting on behalf of any party, which
are not embodied in this Agreement and no agreement, statement or promise not
contained in this Agreement shall be valid or binding on the parties unless such
change or modification is in writing and is signed by the parties.
16. SEVERABILITY. If a court of competent jurisdiction holds that any
provision or sub-part thereof contained in this Agreement is invalid, illegal or
unenforceable, that invalidity, illegality or unenforceability shall not affect
any other provision in this Agreement.
17. PARTIES BOUND. This Agreement shall apply to, be binding upon and inure
to the benefit of the parties' successors, assigns, heirs and other
representatives.
18. REMEDIES. If Xxxxx does not abide by the obligations set forth in this
Agreement, then Closure will be relieved of its obligations hereunder and may
seek all other legal and equitable relief and Xxxxx will return all monies
received pursuant to this Agreement and indemnify Closure, its past, present or
future owners, parents, subsidiaries, affiliates, predecessors, successors,
assigns, officers, directors, stockholders, employees, employee benefit plans,
plan administrators, or agents for all expenses including attorneys' fees they
incur in defending any actions brought by him or any actions by them to enforce
this Agreement.
19. GOVERNING LAW. This Agreement will be governed by North Carolina law
and the applicable provisions of federal law, including but not limited to Age
Discrimination and Employment Act (ADEA).
IN WITNESS WHEREOF, the parties have entered into this Agreement on the day
and year written below.
EMPLOYEE REPRESENTS THAT HE HAS CAREFULLY READ THIS ENTIRE SEVERANCE AND
RELEASE AGREEMENT, UNDERSTANDS ITS CONSEQUENCES, AND VOLUNTARILY ENTERS INTO IT.
/s/ Xxxxxx Xxxxx 3/4/02
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Xxxxxx Xxxxx Date
CLOSURE MEDICAL CORPORATION
By: /s/ Xxxxx X. Xxxx 3/11/02
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Xxxxx X. Xxxx Date
Title: Vice President and General Counsel
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