SEPARATION AGREEMENT AND RELEASE
SEPARATION
AGREEMENT AND RELEASE
This
Separation Agreement and Release (“Agreement and Release”) is made by and
between Xxxxx X. Xxxxx, Ph.D. (“Executive”) and OrthoLogic Corp., a Delaware
corporation (the “Company”) as of November 17, 2006. Executive and the Company
mutually desire to sever their employment relationship and, notwithstanding
Section 6(b) of the Employment Agreement between Executive and the Company
dated
June 1, 2001, as amended (the “Employment Agreement”), agree as
follows:
1. The
Employment Agreement is terminated effective on the date hereof (the “Separation
Date”) and, except as expressly provided herein, Executive shall not have any
further rights thereunder. Executive hereby resigns as Senior Vice President
and
Chief Scientific Officer and from each other office and employment position
with
the Company effective on the Separation Date.
2. In
connection with this Agreement and Release, the Company and Executive are
simultaneously entering into a Consulting Agreement effective upon the
Separation Date, providing for compensation and other benefits to Executive
for
services to be provided thereunder (the “Consulting Agreement”). The Company
shall have no obligation to pay further compensation or other amounts, or
provide any benefits to Executive other than as expressly provided in the
Consulting Agreement, except that the Company shall pay the following to
Executive:
a. Accrued
and unpaid base salary, including accrued and unpaid vacation pay, under
the
Employment Agreement through the Separation Date, which shall be paid, net
of
required withholding, in accordance with the Company’s normal payroll practices;
and
b. Within
30
days of the Separation Date, Executive's reasonable documented out-of-pocket
business expenses properly incurred (including receipt of necessary
pre-approvals) prior to the Separation date but not yet reimbursed.
3. a. Except
as
expressly provided herein, Executive hereby releases the Company, its past
and
present parent, subsidiary and affiliated corporations or business entities
and
its and their past and present directors, officers, agents and employees,
from
any and all past and present causes of action, claims, rights and liabilities,
known or unknown, statutory or at common law, arising out of Executive’s
employment or termination of employment with the Company; provided, that
the
foregoing release shall not apply to the Company's obligations under this
Agreement or the Consulting Agreement or to the Company's obligations to
indemnify Executive in his capacity as an officer of the Company pursuant
to the
Certificate of Incorporation or Bylaws of the Company.
b. By
way of
example only and without limiting the immediately preceding paragraph, this
release is applicable to any cause of action, right, claim or liability under
any federal, state or local law, regulation, ordinance or order that regulates
the employment relationship and/or employee benefits, including Title VII
of the
Civil Rights Act of 1964 as amended, The Age Discrimination in Employment
Act,
the Americans with Disabilities Act of 1990 as amended, the Civil Rights
Act of
1991, the Equal Pay Act of 1963, as amended, the Employee Retirement Income
Security Act of 1974, as amended, the Family and Medical Leave Acts, the
Arizona
Employment Protection Act, any state or federal laws providing “whistleblower”
protection, and any other law relating to employment matters or prohibiting
employment discrimination, claims for breach of express or implied contract,
wrongful or unlawful discharge, breach of the covenant of good faith and
fair
dealing, intentional or negligent infliction of emotional distress, defamation
and any other claim in contract or tort, and for attorneys fees.
c. EXECUTIVE
ACKNOWLEDGES, AGREES AND UNDERSTANDS THAT (1) THIS IS A LEGALLY BINDING GENERAL
RELEASE; (2) BY SIGNING THIS AGREEMENT AND RELEASE EXECUTIVE IS BARRED FROM
INSTITUTING A LAWSUIT FOR AGE DISCRIMINATION AS WELL AS THE OTHER CAUSES
OF
ACTION SET FORTH ABOVE; (3) EXECUTIVE WAS INFORMED OF HIS RIGHT TO CONSULT
WITH
AN ATTORNEY PRIOR TO SIGNING THIS AGREEMENT AND RELEASE; (4) BEFORE SIGNING
THIS
AGREEMENT AND RELEASE, EXECUTIVE WAS GIVEN IN EXCESS OF TWENTY-ONE DAYS TO
CONSIDER IF EXECUTIVE SHOULD SIGN THIS AGREEMENT AND RELEASE; AND (5) EXECUTIVE
MAY REVOKE THIS AGREEMENT AND RELEASE WITHIN SEVEN DAYS AFTER SIGNING IT
BY
DELIVERING WRITTEN NOTICE THEREOF TO THE PRESIDENT OF THE COMPANY. This
Agreement and Release and Executive’s rights hereunder shall be binding and
effective upon the expiration of such seven day period if Executive does
not
revoke this Agreement. By signing this Agreement and Release, Executive hereby
waives the foregoing 21-day period to consider signing this Agreement and
Release.
d. The
foregoing release shall be binding upon Executive, and Executive’s agents,
attorneys, personal representatives, executors, administrators, heirs,
beneficiaries, successors, and assigns.
4. Except
as
expressly provided herein, the Company hereby releases Executive from any
and
all past and present causes of action, claims, rights and liabilities actually
known to Xxxx X. Xxxxxxxx, III, the Company's Executive Chairman, or Xxx
Xxxxxx,
the Company's Chief Financial Officer, and any causes of action, claims,
rights
and liabilities based on negligence, in each case whether statutory or at
common
law, arising out of Executive’s employment or termination of employment with the
Company; provided, that the foregoing release shall not apply to Executive's
obligations under this Agreement or the Consulting Agreement.
5. Executive
hereby reaffirms his continuing obligation to abide by the terms of the
Invention, Confidential Information and Non-Competition Agreement dated February
9, 1999 between him and the Company (the “IP Assignment
Agreement”).
6. The
terms
of this Agreement and Release supersede paragraph 6(b) of the Employment
Agreement. The parties acknowledge that certain paragraphs of the Employment
Agreement, by their terms, survive the termination of such agreement, including,
but not limited to, paragraphs 7, 9 and 10.
7. The
parties acknowledge and agree that for purposes of the vesting, exercisability
and expiration provisions in Executive's stock options granted under the
Company’s 1987 Stock Option Plan, 1997 Stock Option Plan and 2005 Equity
Incentive Plan, Executive shall be deemed to be providing services to the
Company and to be an employee during the term of the Consulting
Agreement.
8. Executive
and the Company agree not to disparage the other party, and Executive agrees
not
to disparage the Company’s officers, directors, employees, shareholders and
agents, in any manner likely to be harmful to them or their business, business
reputation or personal reputation; provided that nothing herein shall be
deemed
to limit or impair either Executive or the Company from pursuing any right
or
remedy alleging a breach by the other party and provided further that both
Executive and the Company shall respond accurately and fully to any question,
inquiry or request for information when required by legal process.
9. Consultant
shall immediately return any and all things in his possession or control
belonging to the Company, including without limitation, computers, equipment,
files, documents and information (whether in electronic or hard copy
format).
The
Company shall clean out Executive’s office in the Company’s facility and return
to Executive within 7 days after the Separation Date all items reasonably
determined by the Company to be personal property of Executive.
10. Within
30
days after the Separation Date, Consultant shall provide to the Company,
in
writing, a complete and accurate schedule of all oral contracts or agreements
entered into by Consultant on behalf of the Company which have not previously
been disclosed to the Company, which schedule shall be certified by
Consultant.
11. This
Agreement and Release contains all the promises and understandings of the
parties in respect of the subject matter hereof. There are no other agreements
and understandings in respect of the subject matter hereof except as set
forth
herein and in the Consulting Agreement and the IP Assignment Agreement, and
this
Agreement and Release may be amended only by a written agreement signed by
the
parties.
[SIGNATURE
ON THE FOLLOWING PAGE]
The
parties each acknowledge that they have read this Agreement and Release and
understand and voluntarily agree to its terms.
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Company
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Executive
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By:
/s/
Xxxx X. Xxxxxxxx, III
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/s/
Xxxxx X. Xxxxx, Ph.D.
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Name:
Xxxx X. Xxxxxxxx, III
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Xxxxx
X. Xxxxx, Ph.D.
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Title:
Executive Chairman
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Date:
November 21, 2006
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Date:
November 21, 2006
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