CONFIDENTIAL
SEPARATION AND CONSULTING AGREEMENT
This Separation and Consulting Agreement (this "Agreement") is made
and entered into on April ___, 1997 by and between Xx. Xxxxx X. Xxxxxxxxx
("Xxxxxxxxx"), a Minnesota resident, and Minntech Corporation (the "Company"), a
Minnesota corporation.
BACKGROUND
X. Xxxxxxxxx is a founder of the Company and was employed by the
Company for approximately 23 years.
B. During his tenure with the Company Xxxxxxxxx has been a Director
and served as Chairman of the Board, President and Chief Executive Officer.
C. On January 30, 1997 Xxxxxxxxx resigned as Chairman of the Board,
President and Chief Executive Officer effective immediately.
D. By agreement of the parties Xxxxxxxxx'x separation from the
Company occurred as of March 31, 1997.
E. The parties have agreed that Xxxxxxxxx will continue to render
services to the Company as a consultant and will not enter into competition with
the Company for certain time periods thereafter.
X. Xxxxxxxxx will continue to serve as a Director of the Company in
accordance with the charter documents of the Company.
CONFIDENTIAL
G. The parties are concluding their employment relationship
amicably, but mutually recognize that any employment relationship may give rise
to potential claims or liabilities.
H. The parties expressly deny that they may be liable to each other
on any basis or that they have engaged in any improper or unlawful conduct or
wrongdoing against each other.
X. Xxxxxxxxx and the Company desire to resolve all issues
potentially in dispute between them.
X. Xxxxxxxxx and the Company have agreed to a full settlement of all
issues potentially in dispute between them.
K. Under the circumstances, it is one of the purposes of this
Agreement to provide for the exchange of consideration between the parties, to
provide for the exchange of releases of claims and potential claims between the
parties, and to consolidate within one document the parties' continuing
obligations to each other.
NOW, THEREFORE, in consideration of the mutual promises and provisions
contained in this Agreement and the Releases referred to below, the parties
agree as follows:
AGREEMENTS
1. RELEASE OF CLAIMS BY XXXXXXXXX. At the same time Xxxxxxxxx
executes this Agreement, he also will execute a Release, in the form attached to
this Agreement as Exhibit A ("Xxxxxxxxx Release"), in favor of the Company, its
insurers, affiliates, divisions,
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committees, directors, officers, employees, agents, successors, and assigns.
This Agreement will not be interpreted or construed to limit the Xxxxxxxxx
Release in any manner. The existence of any dispute respecting the
interpretation of this Agreement or the alleged breach of this Agreement will
not nullify or otherwise affect the validity or enforceability of the Xxxxxxxxx
Release.
2. RELEASE OF CLAIMS BY THE COMPANY. At the same time the Company
executes this Agreement, the Company also will execute a Release, in the form
attached to this Agreement as Exhibit B ("Minntech Release"), in favor of
Xxxxxxxxx and his heirs, successors, representatives, and assigns. This
Agreement will not be interpreted or construed to limit the Minntech Release in
any manner. The existence of any dispute respecting the interpretation of this
Agreement or the alleged breach of this Agreement will not nullify or otherwise
affect the validity or enforceability of the Minntech Release.
3. CONSULTANCY. Xxxxxxxxx will become consultant to the Company and
will perform such services for the Company as set forth in this paragraph 3.
a. TERM. Xxxxxxxxx'x consultancy with the Company will begin
on April 1, 1997 and end on March 31, 2000, unless the consultancy ends earlier
in accordance with subparagraph 3.i. below (the "Consultancy Period").
b. STATUS. As a consultant to the Company, Xxxxxxxxx will be
an independent contractor and not an employee of the Company. Xxxxxxxxx'x work
as a
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Consultant will be independent from his role as a Director and will neither add
to nor subtract from his duties and responsibilities as a Director.
c. REPORTING RELATIONSHIP. Xxxxxxxxx will receive work
assignments from and report to the Company's President and Chief Executive
Officer (the "CEO").
d. DUTIES. Xxxxxxxxx will perform work for the Company related
to Minntech Products (defined in subparagraph 8.a.iii. below). In general,
Xxxxxxxxx will: (i) consult with the Company's senior managers and other
Directors at their request; (ii) advise the Company's senior managers at their
request concerning research and development, product development, and
manufacturing operations efforts; and (iii) monitor industry trends through
attendance at industry trade shows (not to exceed six such trade shows outside
the Twin Cities metropolitan area during any 12-month period), review of
scientific literature and competitors' publications, and review of patents and
other relevant publications. In addition, the CEO may assign to Xxxxxxxxx or
Xxxxxxxxx may obtain the CEO's approval in advance to work on other special
projects, in which event the parties will agree on: (i) the scope and
objectives of the project; (ii) whether the project will result in a report or
other tangible product; and (iii) the deadline for completion of the project.
During the Consultancy Period the Company will provide Xxxxxxxxx with limited
access to Company-provided on-line information services and will furnish him
with the files and other information that he reasonably requires to perform his
duties as a consultant to the Company.
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e. TIME. Xxxxxxxxx will devote up to 20 hours per week on
average to his duties as a consultant.
f. LOCATION. Xxxxxxxxx will perform his duties as a consultant
at any location chosen by him (including his residence), but will not perform
work or render other services as a consultant at any Company location except as
approved in advance by the CEO.
g. EXPENSES. The Company will reimburse Xxxxxxxxx for his
actual operating expenses as a consultant, such as the charges he incurs for his
use of telephones, fax machines, copiers, and computer equipment, in an amount
not to exceed a total of $2,000.00 per month. The Company will reimburse
Xxxxxxxxx for an item of operating expense in excess of the total of $2,000.00
per month only if the CEO has approved such item in advance in writing. In
addition, the Company will reimburse Xxxxxxxxx for his actual travel expenses,
such as registration fees, air fare, hotel, meals, ground transportation, and
incidentals, for his attendance at industry trade shows outside the Twin Cities
metropolitan area, so long as Xxxxxxxxx'x attendance at a given trade show is
approved in advance by the CEO. Xxxxxxxxx will be responsible for submitting to
the CEO a report on a form provided by the Company showing all of his monthly
operating expenses and travel expenses as a consultant to the Company with
supporting documentation. The Company will make reimbursement payments to
Xxxxxxxxx within 30 days following the Company's receipt of an expense report
from him.
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h. INTELLECTUAL PROPERTY.
i. All Inventions related to Minntech Products (defined in
subparagraph 8.a.iii below) made by Xxxxxxxxx during the
Consultancy Period are the exclusive property of the Company
unless released to Xxxxxxxxx in writing by the CEO.
ii. Except as otherwise provided in subparagraph h.iii.B. below,
the Company will not be required to designate Xxxxxxxxx as
inventor of any invention or author or any related
documentation distributed publicly or otherwise. Xxxxxxxxx
waives and releases, to the extent permitted by law, all
rights to the foregoing.
iii. Xxxxxxxxx further agrees that he will:
A. promptly and fully disclose all Inventions in writing
to the CEO; such disclosure will include, if requested,
a detailed report of the procedures employed and the
results achieved by Xxxxxxxxx; and
B. give the Company all assistance it requires to perfect,
protect, and use its rights to Inventions,
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including, but not limited to, signing all documents,
doing all things, and supplying all information that
the Company may deem necessary or desirable to: (1)
transfer or record the transfer of Xxxxxxxxx'x entire
right, title, and interest in Inventions to the
Company, and (2) enable the Company to obtain and
maintain patent, copyright, or trademark protection for
Inventions anywhere in the world.
iv. The obligations of this subparagraph 3.h. will continue
beyond the end of the Consultancy Period with respect to
Inventions conceived or made by Xxxxxxxxx during the
Consultancy Period. For purposes of this Agreement, any
Invention relating to the existing or reasonable foreseeable
Minntech Products for which Xxxxxxxxx files a patent
application within one year after the end of the Consultancy
Period will be presumed to be an Invention conceived by
Xxxxxxxxx during the Consultancy Period, subject to proof to
the contrary that such Invention was
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conceived and made following termination of the Consultancy
Period.
v. For purposes of this subparagraph 3.h., "Invention" means
any invention, discovery, improvement, concept, or idea,
whether or not patentable (including those which may be
subject to copyright protection), including, but not limited
to, computer software and hardware technology, machines,
devices, processes, methods, techniques, and formulae which
are generated, conceived, or reduced to practice by
Xxxxxxxxx along or in conjunction with others, during or
after working hours, while serving as a consultant to the
Company.
vi. Xxxxxxxxx is hereby notified that this Agreement does not
apply to any invention for which no equipment, supplies,
facility, trade secret information, or Confidential
Information (defined in subparagraph 8.a.iv. below) of the
Company was used and which was developed entirely on
Xxxxxxxxx'x own time, and (1) which does not relate (a)
directly to the business of the Company or (b) to the
Company's actual or demonstrably anticipated research
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or development; or (2) which does not result from any work
performed by Xxxxxxxxx for the Company.
i. TERMINATION. Xxxxxxxxx'x consultancy with the Company will end
immediately upon:
i. receipt by the Company of Xxxxxxxxx'x resignation (whether
written or oral) as a consultant;
ii. Xxxxxxxxx'x receipt of written notice from the Company of
the termination of Xxxxxxxxx'x consultancy;
iii. Xxxxxxxxx'x death or disability; or
iv. expiration of the term of the consultancy.
The date on which the consultancy ends will be the "Consultancy Termination
Date."
j. PAYMENTS UPON TERMINATION.
i. If Xxxxxxxxx'x consultancy ends by reason of:
X. Xxxxxxxxx'x resignation as a consultant, or
B. termination of Xxxxxxxxx'x consultancy by the Company
for Cause, or
C. expiration of the term of the consultancy,then the
Company will pay Xxxxxxxxx'x Consultant's Fee through the
end of the month in which the Consultancy Termination Date
occurs, and Xxxxxxxxx will not accrue
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any further rights to receive Supplemental Retirement
Benefits after the end of the month in which the Consultancy
Termination Date occurs.
ii. If Xxxxxxxxx'x consultancy ends by reason of termination by
the Company for any reason other than for Cause, or if
Xxxxxxxxx dies or becomes disabled prior to March 31, 2000,
then the Company will continue to pay Xxxxxxxxx'x Consulting
Fee through March 31, 2000, and Xxxxxxxxx will continue to
accrue rights to receive Supplemental Retirement Benefits
through March 31, 2000.
iii. Termination of the consultancy by either party for any
reason will not terminate Xxxxxxxxx'x right to receive
Severance Pay from the Company.
iv. "Termination of Xxxxxxxxx'x consultancy by the Company for
Cause" means termination for:
X. Xxxxxxxxx'x failure or refusal to perform his duties as
a consultant under this Agreement, or his neglect of
such duties, as determined by the Company's Board of
Directors (the "Board") in its sole discretion,
provided that the Company first
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gives Xxxxxxxxx written notice of such failure or
refusal and allows him 30 days thereafter to remedy or
correct such failure or refusal;
X. Xxxxxxxxx'x failure or refusal to limit his activities
as a consultant to those duties specified under this
Agreement, or to abide by the reporting relationship
established under this Agreement, as determined by the
Board in its sole discretion, provided that the Company
first gives Xxxxxxxxx written notice of such failure or
refusal and allows him 10 days thereafter to remedy or
correct such failure or refusal;
C. conduct by Xxxxxxxxx that is disruptive to or otherwise
interferes with the work of Company employees or the
Company's operations, as determined by the Board in its
sole discretion;
D. material breach of the Agreement by Xxxxxxxxx;
E. dishonesty on the part of Xxxxxxxxx;
F. violation of any fiduciary duty, including the duty of
loyalty or the duty of due care, owed by
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Xxxxxxxxx to the Company in his capacity as a Director
of the Company; or
G. commission of a crime by Xxxxxxxxx or other public
misconduct by him detrimental to the reputation of the
Company.
v. "Disability" means the inability of Xxxxxxxxx to perform his
duties as a consultant by reason of illness or other
physical or mental impairment or condition, if such
inability continues for an uninterrupted period of 90 days
or more. A period of inability will be "uninterrupted"
unless and until Xxxxxxxxx is able to work as a consultant
for a continuous period of at least 30 days.
k. NOTICE. If Xxxxxxxxx decides to resign as a consultant to the
Company for any reason, then he will give the Company written notice of his
resignation six months in advance of the effective date of his resignation. If
the Company decides to terminate Xxxxxxxxx'x consultancy for any reason other
than for Cause, then the Company will give Xxxxxxxxx written notice of such
termination six months in advance of the effective date of the termination.
Neither party will be required to give notice to the other party of the party's
decision not to seek an extension of the term of this Agreement beyond the term
specified in subparagraph 3.a. above.
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4. PAYMENTS. In consideration of Xxxxxxxxx'x past services to the
Company as an employee and officer of the Company and his agreements to continue
to render services to the Company as a consultant and not to enter into
competition with the Company as provided in this Agreement, the Company will
make the payments set forth in subparagraphs 4.a. through 4.f. below to
Xxxxxxxxx or for his benefit, but only if: (i) Xxxxxxxxx has not rescinded this
Agreement or the Xxxxxxxxx Release within the applicable rescission period; and
(ii) the Company has received written confirmation from Xxxxxxxxx, in the form
attached to this Agreement as Exhibit C, dated not earlier than the day after
the expiration of the applicable rescission period, that Xxxxxxxxx has not
rescinded and will not rescind this Agreement or the Xxxxxxxxx Release. Payment
of any amount set forth below will not modify or terminate the parties'
obligations to each other as established by this Agreement. The payments set
forth below will be sent by first-class mail to Xxxxxxxxx'x last known residence
address, unless he advises the Company in writing that he wants the payments
sent to a different address.
x. XXXXXXXXX PAY. The Company will pay Xxxxxxxxx (or his
designated beneficiary or estate, as the case may be) Severance Pay of
$800,000.00, less all applicable payroll and legal withholding, in 78
approximately equal bi-weekly installments during the period between April 1,
1997 and March 31, 2000; provided, however, that no installment will be paid to
Xxxxxxxxx before the second business day following the expiration of the
applicable rescission period (the "Payment Date"). Any installments otherwise
due
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prior to the Payment Date will not be forfeited but will be paid to Xxxxxxxxx
on the Payment Date.
b. CONSULTANT'S FEE. The Company will pay Xxxxxxxxx a
Consultant's Fee of $2,777.78 per month on or about the last business day of
each month during the Consultancy Period. The first payment will be made to
Xxxxxxxxx on the later of April 30, 1997 or the Payment Date.
c. SUPPLEMENTAL RETIREMENT BENEFIT. The Company will pay
Xxxxxxxxx (or his designated beneficiary or estate, as the case may be) a
Supplemental Retirement Benefit. The Company will pay the Supplemental
Retirement Benefit in monthly installments of $31,250.00 on or about the last
business day of each month commencing in the month during which Xxxxxxxxx turns
age 65 (or would have turned age 65 if he were then still living) over a number
of months equal to the total number of full months of the Consultancy Period.
d. BENEFICIARY DESIGNATION. Any designation of a beneficiary
for purposes of subparagraphs 4.a. and 4.c. above must be made by Xxxxxxxxx in
writing and must be furnished to the Company's Vice President and General
Counsel. If no effective beneficiary designation is on file with the Company at
the time of Xxxxxxxxx'x death, then any remaining Severance Pay and the
Supplemental Retirement Benefit will be paid to his estate.
e. HEALTH INSURANCE. During the Consultancy Period the Company
will either make group health insurance available to Xxxxxxxxx on the same basis
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and on the same terms that such insurance is made available to senior managers
of the Company or will provide him with an individual health insurance policy,
provided that Xxxxxxxxx is able to comply with all requirements respecting
insurability. So long as Xxxxxxxxx is covered under the Company's group health
insurance program, the Company will pay the same portion of the premium as the
Company pays for its senior managers for such coverage, and any portion of the
premium for such coverage payable by Xxxxxxxxx will be paid by him at least
monthly on or before the last day of each month during which he is subject to
such coverage. So long as Xxxxxxxxx is covered by an individual health
insurance policy provided by the Company, he will pay the Company at least
monthly on or before the last day of each month during which he has such
coverage the same amount that he last paid to the Company for his portion of the
premium for coverage under the Company's group health insurance program, and the
Company will pay the balance of the premium for such individual coverage up to a
maximum of $340.56 per month. The Company will have no obligation to pay any
portion of any premiums for either group health insurance coverage or for an
individual health insurance policy provided by the Company after the month in
which the Consultancy Period ends.
f. AUTO LEASE. The Company will continue to make the monthly
lease payments on the 1995 leased Lexus LS-400 automobile provided to Xxxxxxxxx
by the Company until the end of the lease or the end of the Consultancy Period,
whichever is earlier. If the Company makes such lease payments until the end of
the lease, then Xxxxxxxxx will
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have the option to purchase the automobile from the leasing company for the
residual value of approximately $26,810.00. If the Consultancy Period ends
before all of the monthly lease payments are made by the Company, then the
automobile will be returned to the Company by Xxxxxxxxx no later than the last
business day of the month in which the Consultancy Period ends.
g. ATTORNEYS' FEES. The Company will pay to the law firm of
Xxxxxxx, Street & Deinard PA ("Xxxxxxx-Street") an amount not to exceed
$25,000.00 for the attorneys' fees and costs that Xxxxxxxxx incurs in connection
with his separation from the Company and the establishment of his consultancy
with the Company. Xxxxxxx-Street will submit its detailed invoice for fees and
costs, showing each date on which the legal services were rendered, the hours
spent by each time xxxxxx on each date, and the hourly billing rate of each time
xxxxxx, directly to the Company's Vice President and General Counsel, and the
Company will make payment of the amount of the invoice, subject to the maximum
limitation specified above, within 30 days after receipt of the invoice.
5. STOCK OPTIONS. Xxxxxxxxx is a participant in the Company's 1982
Stock Plan and 1989 Stock Plan (the "Stock Plans"). Under the terms of the
Stock Plans and Xxxxxxxxx'x agreements relating to options to purchase shares of
the Company's common stock, Xxxxxxxxx is fully vested in options to purchase
380,842 shares of Company common stock, which are listed in Schedule 1 attached
to this Agreement. Xxxxxxxxx must exercise his incentive stock options to
purchase 55,843 shares of Company common stock on or before
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April 10, 1997; if he does not exercise such options by that date, then such
options will lapse. If Xxxxxxxxx rescinds this Agreement and the Xxxxxxxxx
Release prior to the termination of the applicable rescission period, then he
must exercise his incentive stock options to purchase 9,416 shares of Company
common stock on or before April 10, 1997, and he must exercise his nonqualified
stock options to purchase the remaining 315,583 shares of Company common stock
on or before June 29, 1997; if he does not exercise his incentive stock options
to purchase 9,416 shares of Company common stock (the "9,416 Shares") on or
before April 10, 1997, then the 9,416 Shares will become nonqualified stock
options, and Xxxxxxxxx must exercise them on or before June 29, 1997. If
Xxxxxxxxx does not rescind this Agreement and the Xxxxxxxxx Release, then the
Board will take the required action to extend the time for Xxxxxxxxx to exercise
any nonqualified stock options held by him (including the 9,416 Shares) that
were not previously exercised until the earlier of March 31, 2001 or three
months after the Company has given Xxxxxxxxx notice in writing that he is in
violation of terms of subparagraphs 8.a., 8.b., or 8.c. below.
6. INSURANCE CONTINUATION.
a. HEALTH INSURANCE. Xxxxxxxxx acknowledges that his
separation from the Company as of March 31, 1997 was a qualifying event under
COBRA and that his right to elect under COBRA health insurance coverage provided
by the Company will terminate no later than September 30, 1998 as provided by
current law. If the Consultancy Period ends for any reason prior to September
30, 1998, then Xxxxxxxxx will have the right to
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elect under COBRA group health insurance coverage provided by the Company under
such terms as are made available to similarly-situated former employees of the
Company, provided that Xxxxxxxxx pays 102 percent of the cost of the lowest-cost
group health insurance option provided by the Company as provided by law until
September 30, 1998, or until he obtains other qualifying group coverage or his
COBRA rights terminate for some other reason, if earlier.
b. LIFE INSURANCE. Xxxxxxxxx will have the right to continue
his group life insurance coverage after March 31, 1997 under Minnesota law under
such terms as are made available to similarly-situated former employees of the
Company, provided that Xxxxxxxxx pays 102 percent of the cost of that insurance
as provided by law, for 18 months, or until he obtains other qualifying group
coverage or his statutory rights terminate for some other reason, if earlier.
7. RETIREMENT PLANS. Xxxxxxxxx is a participant in the Minntech
Profit Sharing and Retirement Plan and in the Supplemental Executive Retirement
Plan (the "Retirement Plans"). Xxxxxxxxx will be entitled to begin drawing his
retirement benefits at the times and under the terms and conditions set forth in
the Retirement Plans.
8. NO-COMPETITION, NON-SOLICITATION, AND NON-DISCLOSURE AGREEMENTS.
a. AGREEMENT NOT TO COMPETE.
x. Xxxxxxxxx will not, on or before April 1, 2001, without
the prior written consent of the Company, either
directly
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or indirectly, on his own account or in the service of
others, engage in the design, development, assembly,
manufacture, marketing, or sale of a Competitive
Product in any area or territory in which the Company
engages or will have engaged in business during the
Consultancy Period.
ii. For purposes of this Agreement "Competitive Product"
means any product, process, or service (including any
component thereof or research to develop information
useful in connection with a product or service) that is
being designed, developed, assembled, manufactured,
marketed, or sold by anyone other than the Company and
which is of the same general type, performs similar
functions, competes with, or is used for the same
purposes as a Minntech Product.
iii. For purposes of this Agreement "Minntech Product" means
any product, process, or service (including any
component thereof or research to develop information
useful in connection with a product or service) that,
within three years prior to the termination or
expiration of
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the Consultancy Period, was being designed, developed,
assembled, manufactured, marketed, or sold by the
Company, or with respect to which the Company had
acquired Confidential Information which it intends to
use in the design, development, manufacture, assembly,
or sale of a product or service.
iv. For purposes of this Agreement "Confidential
Information" means information not generally known,
including trade secrets, about the Company's methods,
processes, and products, including, but not limited to,
information relating to such matters as research and
development, manufacturing methods, processes,
techniques, chemical composition of materials,
applications for particular technologies, materials or
designs, vendor names, customer lists, management
systems, and sales and marketing plans. All
information disclosed to Xxxxxxxxx or to which
Xxxxxxxxx has access during the Consultancy Period or
had access during the time of his employment with the
Company, which he has a reasonable basis to believe is
Confidential Information
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or which is treated by the Company as Confidential
Information, will be presumed to be Confidential
Information.
B. AGREEMENT NOT TO SOLICIT EMPLOYEES. Cosentino will not, on
or before April 1, 2001, without the prior written consent of the Company,
solicit any person who is then employed by or otherwise engaged to perform
services for the Company to terminate his or her relationship with the Company
or interfere with the Company's relationship with any such person. Cosentino
will not, on or before April 1, 2001, without the prior written consent of the
Company, provide substantive or qualitative information regarding any person who
is then employed by or otherwise engaged to perform services for the Company to
any person or entity engaged in the design, development, assembly, manufacture,
marketing, or sale of a Competitive Product in any area or territory in which
the Company engages or will have engaged in business during Consultancy Period.
C. AGREEMENT NOT TO DISCLOSE CONFIDENTIAL COMMERCIAL
INFORMATION. Cosentino will not, without the prior written consent of the
Company, directly or indirectly use or disclose Confidential Information for the
benefit of anyone other than the Company, either during or after the Consultancy
Period or during or after the time of his employment with the Company.
Cosentino will hold secret and confidential all data used or processed by the
Company concerning which Cosentino has acquired knowledge or information during
the Consultancy Period or during the time of his employment with the
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Company. Cosentino will not disregard his obligations of confidence by using
any trade secret or other confidential business and/or technical information of
which he becomes informed during the Consultancy Period or was informed during
his employment to guide him in a search of publications or other publicly
available information, selecting a series of items of knowledge from unconnected
sources, and fitting them together to claim that he did not violate any
agreements set forth in this Agreement.
D. SCOPE OF RESTRICTIONS. The parties intend that, if any
court of competent jurisdiction holds that any restriction in subparagraphs 8.a.
through 8.c. above exceeds the limit of restrictions that are enforceable under
applicable law, then the restriction will nevertheless apply to the maximum
extent that is enforceable under applicable law.
E. DISPUTES. Any dispute between the parties over whether
Cosentino is in violation of any of the restrictions in subparagraphs 8.a.,
8.b., or 8.c. above will not terminate Xxxxxxxxx'x right to receive Severance
Pay from the Company.
9. COMPANY COOPERATION. The Company will ensure that all proper
steps are followed to comply with Xxxxxxxxx'x written instructions with respect
to his stock options, retirement benefits, and health and life insurance
benefits, and will provide him with information that he reasonably requires in
accordance with the applicable employee benefit plans sponsored by the Company
in which he is a participant.
10. INDEMNIFICATION. Notwithstanding Xxxxxxxxx'x separation from the
Company, with respect to events that occurred during his tenure as an employee
or officer of
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the Company, Cosentino will be entitled, as a former employee or officer of the
Company, to the same rights that are afforded to senior executive officers of
the Company, now or in the future, to indemnification and advancement of
expenses provided in the charter documents of the Company and under applicable
law or otherwise, and to coverage and a legal defense under any applicable
general liability and/or directors' and officers' liability insurance policies
maintained by the Company.
11. COSENTINO REPRESENTATION. Cosentino represents that, during the
entire period that he was an employee or officer of the Company, he acted in
good faith, had no reasonable cause to believe that his conduct was unlawful,
and reasonably believed that his conduct was in the best interests of the
Company. The parties intend that the terms used in this paragraph will have the
same meaning as the same terms used in paragraph 302A.531 of the Minnesota
Statutes.
12. COMPANY REPRESENTATION. The Company represents that on the date
of this Agreement no transaction or other event has occurred that would
constitute a "Change in Control" as that term is defined in the Management
Agreement dated September 1, 1996 between Cosentino and the Company.
13. MUTUAL CONFIDENTIALITY.
A. GENERAL STANDARD. It is the intent of the parties that the
terms of his separation from the Company, including the provisions of this
Agreement and the Cosentino Release and the Minntech Release (collectively
"Confidential Separation
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Information"), will be forever treated as confidential. Accordingly, Cosentino
and the Company will not disclose Confidential Separation Information to anyone
at any time, except as provided in subparagraph 13.b. below.
B. EXCEPTIONS.
i. It will not be a violation of this Agreement for the
parties to disclose Confidential Separation Information
to the Company's directors and stockholders or in
public filings in the form of proxy statements or other
reports required by securities laws or to governmental
agencies as required by law, including, but not limited
to, the Securities and Exchange Commission and any
federal or state tax authority. Cosentino acknowledges
that the Company will be required to file a copy of
this Agreement and the attachments hereto with the
Securities and Exchange Commission.
ii. It will not be a violation of this Agreement for
Cosentino to disclose Confidential Separation
Information to his immediate family, his attorneys, or
his accountants or tax advisors.
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iii. It will not be a violation of this Agreement for
Cosentino to disclose to employers and/or prospective
employers that he is constrained from certain
activities as a result of the terms of subparagraphs
8.a., 8.b., and 8.c. above. Nor will it be a violation
of this Agreement for Cosentino to inform Company
employees who ask him about employment opportunities
outside the Company that the terms of paragraph 8.b.
above preclude him from engaging in certain activities
that could interfere with their employment with the
Company.
iv. It will not be a violation of this Agreement for either
party to disclose Confidential Separation Information
to the Company's auditors, its attorneys, or its
directors, officers, employees, or agents who have a
legitimate reason to obtain the Confidential Separation
Information in the course of performing their duties or
responsibilities for the Company.
14. NON-DISPARAGEMENT. Cosentino will not disparage, defame, or
besmirch the reputation, character, image, products, or services of the Company,
or the
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reputation or character of its directors, officers, employees, or agents. The
Company will not disparage, defame, or besmirch the reputation, character, or
image of Cosentino.
15. CLAIMS INVOLVING THE COMPANY. Cosentino will not recommend or
suggest to any potential claimants or plaintiffs or their attorneys or agents
that they initiate claims or lawsuits against the Company, any of its affiliates
or divisions, or any of its or their directors, officers, employees, or agents,
nor will Cosentino voluntarily aid, assist, or cooperate with any claimants or
plaintiffs or their attorneys or agents in any claims or lawsuits now pending or
commenced in the future against the Company, any of its affiliates or divisions,
or any of its or their directors, officers, employees, or agents; provided,
however, that this paragraph will not be interpreted or construed to prevent
Cosentino from giving testimony in response to questions asked pursuant to a
legally enforceable subpoena, deposition notice, or other legal process, during
any legal proceedings involving the Company, any of its affiliates or divisions,
or any of its or their directors, officers, employees, or agents.
16. RECORDS, DOCUMENTS, AND PROPERTY. The Company hereby sells to
Cosentino for $1.00 the personal computer, monitor, printer, scanner, and fax
machine that the Company has previously provided to him. In addition, the
Company will promptly deliver to Cosentino all scientific and technical books
and journals that were personally purchased by Cosentino and are currently
located on the Company's premises. Within five business days after the end of
the Consultancy Period, Cosentino will return to the Company all equipment
listed on Schedule 2 attached to this Agreement and records, correspondence,
documents,
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financial data, plans, computer disks, computer tapes, and other tangible
property in his possession and all copies thereof belonging to the Company.
Cosentino acknowledges that all CAD files that have been downloaded onto his
personal computer during his employment with the Company and all copies thereof
constitute property of the Company for purposes of this paragraph 16 and will be
immediately deleted from all computer systems under Xxxxxxxxx'x control.
Cosentino acknowledges that within 30 days after Cosentino executes this
Agreement a third party designated by the Company will verify that all such CAD
files and all copies thereof have been deleted from all computer systems under
his control as provided in this paragraph 16. All such CAD files are listed in
Schedule 3 attached to this Agreement.
17. TIME TO CONSIDER AGREEMENT. Cosentino understands that he may
take at least 21 calendar days to decide whether to sign this Agreement and the
Cosentino Release, which 21-day period will commence on the date on which
Cosentino receives copies of this Agreement and the Cosentino Release for
review. Cosentino represents that if he signs this Agreement and the Cosentino
Release before the expiration of the 21-day period, it is because he has decided
that he does not need any additional time to decide whether to sign this
Agreement and the Cosentino Release.
18. RIGHT TO RESCIND OR REVOKE. Cosentino understands that he has
the right to rescind or revoke this Agreement and the Cosentino Release for any
reason within 15 calendar days after he signs them (which 15-day period
expressly includes any other shorter
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time periods provided by law). Cosentino understands that this Agreement and
the Cosentino Release will not become effective or enforceable unless and until
he has not rescinded this Agreement and the Cosentino Release and any applicable
rescission period has expired. Cosentino understands that if he wishes to
rescind, the rescission must be in writing and hand-delivered or mailed to the
Company. If hand-delivered, the rescission must be (a) addressed to Xx. Xxxxxxx
X. Xxxxxxx, Vice President and General Counsel, Minntech Corporation,
00000--00xx Xxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000; and (b) delivered to
Xx. Xxxxxxx within the 15-day period. If mailed, the rescission must be: (a)
postmarked within the 15-day period; (b) addressed to Xx. Xxxxxxx X. Xxxxxxx,
Vice President and General Counsel, Minntech Corporation, 00000--00xx Xxxxxx
Xxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000; and (c) sent by certified mail, return
receipt requested.
19. FULL COMPENSATION. Cosentino and his attorneys, Xxxxxxx-Street,
understand that the payments made and other consideration provided by the
Company under this Agreement will fully compensate Cosentino for and extinguish
any and all of the claims Cosentino is releasing in the Cosentino Release,
including, but not limited to, his claims for attorneys' fees and costs and any
and all claims for any type of legal or equitable relief.
20. NO ADMISSION OF WRONGDOING. Cosentino understands that this
Agreement does not constitute an admission that the Company has violated any
local ordinance, state or federal statute, or principle of common law, or that
the Company has engaged in any improper or unlawful conduct or wrongdoing
against Cosentino. Cosentino
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will not characterize this Agreement or the payment of any money or other
consideration in accordance with this Agreement as an admission that the Company
has engaged in any improper or unlawful conduct or wrongdoing against him.
21. AUTHORITY. Cosentino represents and warrants that he has the
authority to enter into this Agreement and the Cosentino Release, and that no
causes of action, claims, or demands released pursuant to this Agreement and the
Cosentino Release have been assigned to any person or entity not a party to this
Agreement and the Cosentino Release.
22. REPRESENTATION. Cosentino acknowledges that he has been
represented by his own attorneys in this matter, that he has had a full
opportunity to consider this Agreement and the Cosentino Release, that he has
had a full opportunity to ask any questions that he may have concerning this
Agreement, the Cosentino Release, or the settlement of his potential claims
against the Company, and that he has not relied upon any statements or
representations made by the Company or its attorneys, written or oral, other
than the statements and representations that are explicitly set forth in this
Agreement, the Cosentino Release, the Minntech Release, the Stock Plans and
Xxxxxxxxx'x agreements relating thereto (to the extent not modified by the
action of the Board), the Retirement Plan, and any other employee benefit plans
sponsored by the Company in which Cosentino is a participant.
23. SUCCESSORS AND ASSIGNS. This Agreement will be binding upon and
inure to the benefit of the parties and their respective heirs, representatives,
successors, and assigns, including, but not limited to, a purchaser of
substantially all the business or assets of
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the Company, but will not be assignable by either party without the prior
written consent of the other party.
24. INVALIDITY. In the event that any provision of this Agreement,
the Cosentino Release, or the Minntech Release is determined by a court of
competent jurisdiction to be invalid, illegal, or unenforceable in any respect,
such a determination will not affect the validity, legality, or enforceability
of the remaining provisions of this Agreement, the Cosentino Release, or the
Minntech Release, and the remaining provisions of this Agreement, the Cosentino
Release, and the Minntech Release will continue to be valid and enforceable, and
any court of competent jurisdiction may modify the objectionable provision so as
to make it valid and enforceable.
25. ENTIRE AGREEMENT. Before signing this Agreement, the Cosentino
Release, and the Minntech Release, the parties and their representatives engaged
in discussions and negotiations and generated certain documents, in which the
parties and their representatives considered the matters that are the subject of
this Agreement, the Cosentino Release, and the Minntech Release. In such
discussions, negotiations, and documents, the parties and their representatives
may have expressed their judgments and beliefs concerning the intentions,
capabilities, and practices of the parties, and may have forecast future events.
The parties recognize, however, that all business transactions, including the
transactions upon which the parties' judgments, beliefs, and forecasts are
based, contain an element of risk, and that it is normal business practice to
limit the legal obligations of contracting parties only to
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those promises and representations that are essential to the transaction so as
to provide certainty as to their respective future rights and remedies.
Accordingly, this Agreement, the Cosentino Release, the Minntech Release, the
Stock Plans and Xxxxxxxxx'x agreements relating thereto (to the extent not
modified by action of the Board), the Retirement Plans, and any other employee
benefit plans sponsored by the Company in which Cosentino is a participant are
intended to define the full extent of the legally enforceable undertakings of
the parties, and no promises or representations, written or oral, that are not
set forth explicitly in this Agreement, the Cosentino Release, the Minntech
Release, the Stock Plans and Xxxxxxxxx'x agreements relating thereto (to the
extent not modified by action of the Board), the Retirement Plans, or any other
employee benefit plans sponsored by the Company in which Cosentino is a
participant are intended by either party to be legally binding, and all other
agreements and understandings between the parties are hereby superseded.
26. HEADINGS. The descriptive headings of the paragraphs and
subparagraphs of this Agreement are inserted for convenience only, and do not
constitute a part of this Agreement.
27. COUNTERPARTS. This Agreement may be executed simultaneously in
two or more counterparts, each of which will be deemed an original, but all of
which together will constitute one and the same instrument.
28. GOVERNING LAW. This Agreement, the Cosentino Release, and the
Minntech Release will be interpreted and construed in accordance with, and any
dispute or
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controversy arising from any breach or asserted breach of this Agreement, the
Cosentino Release, or the Minntech Release will be governed by, the laws of
Minnesota.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date stated above.
---------------------------------
XXXXX X. XXXXXXXXX, Ph.D.
MINNTECH CORPORATION
---------------------------------
Xxxxxx X. XxXxxxxxxx
Its President and
Chief Executive Officer
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