EXHIBIT 10.26
AGREEMENT OF COMPROMISE AND SETTLEMENT
This AGREEMENT OF COMPROMISE AND SETTLEMENT dated June 6, 2002
(this "Settlement Agreement") is entered into by and among The Spectranetics
Corporation, a Delaware corporation ("Spectranetics" or the "Company"), on the
one hand, and Xxxxxx Xxxxx ("Xx. Xxxxx"), Xxxxxx Xxxxxx ("Xxxxxx"), Xxxx Xxxxx
("Xxxxx"), Xxxxxxxx XxXxxxxx, acting solely in his individual capacity
("XxXxxxxx"), and Xxxxxx Xxxxx ("Xx. Xxxxx") (collectively, the "Sweet 13D
Group"), on the other hand. Xxxxx X. Xxxxxxxxxxxx ("Xxxxxxxxxxxx") is a Party to
this Settlement Agreement solely in his individual capacity with respect to the
Mutual Release pursuant to Section 3(a) below and the dismissal of the State
Action pursuant to Section 4 below.
DEFINED TERMS
As used in this Settlement Agreement, the following terms
shall have the following meanings:
"2002 Annual Meeting" means the annual meeting of the
stockholders of Spectranetics to be held in 2002 at which the election of two
Directors shall be considered.
"Actions" means (1) The Spectranetics Corp., et al. x. Xxxxxx,
et al., Case No. 19620 pending in the Court of Chancery of the State of Delaware
(the "State Action") and (2) The Spectranetics Corp. x. Xxxxxx, et al., Case No.
02-452, pending in the United States District Court for the District of Delaware
(the "Federal Action").
"Board" means the Board of Directors of Spectranetics.
"Board Nominees" means Xxxxx Xxxxxxxxxxxx and Xxxx Xxxxxxx, or
any other Board Nominees selected by the Company.
"Common Stock" means the common stock, par value $.001 per
share, of Spectranetics.
"Director" means a member of the Board.
"Effective Date" means the close of business on the date that
is ten (10) calendar days after the day on which the Company first publicly
announces the rescheduled date of the 2002 Annual Meeting pursuant to Section
1(c) of this Settlement Agreement and following adoption of the change to the
Company's bylaws pursuant to Section 1(b) of this Settlement Agreement, but only
if no nominee(s) for election to the Board at the 2002 Annual Meeting other than
the Board Nominees have been nominated and none of Xxxxxx, Xxxxx or Xx. Xxxxx
has exercised his or her right to revoke the Separation Agreement executed
pursuant to Section 3(b), (c) or (d) below. In the event any Person other than
the Board Nominees is nominated for election to the Board at the 2002 Annual
Meeting on or before such date, or a revocation of any Separation Agreement
occurs, the Effective Date shall not occur.
"Execution Date" means the date on which this Settlement
Agreement has been executed by all Parties, June 6, 2002.
1
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Insurgent Campaign" means the plans, preparations and efforts
of the Sweet 13D Group to solicit proxies to elect a slate of directors or pass
any stockholder proposal at the 2002 Annual Meeting.
"Interim Period" means the ten (10) calendar day period after
the Company gives notice of the rescheduled date of the 2002 Annual Meeting
pursuant to Section 1(c) of this Settlement Agreement.
"New Unaffiliated Directors" means two Directors who, prior to
their election as Directors, have no material business, personal, familial or
other relationship with any Party or any Party's Affiliates.
"Parties" means Spectranetics, Xxxxxxxxxxxx and each member of
the Sweet 13D Group. Spectranetics, Xxxxxxxxxxxx and each member of the Sweet
13D Group shall for purposes of this Settlement Agreement be deemed to be, in
his, her or its individual capacity, a Party.
"Person" means any individual, corporation, association,
general or limited partnership, limited liability company, limited liability
partnership, joint venture, trust, estate, other entity or organization or
group.
"Proposals" means the stockholder proposals described in the
Proxy Materials.
"Proxy Materials" means the materials filed by Mr. Sweet
and/or the Sweet 13D Group with the SEC on or about April 26, 2002, April 29,
2002, May 3, 2002, May 7, 2002, May 8, 2002, May 13, 2002, May 15, 2002, May 16,
2002, May 20, 2002, May 21, 2002, and/or May 29, 2002.
"Schedule 13D" means the Statement on Schedule 13D, as
amended, filed by members of the Sweet 13D Group with the SEC on or about May
13, 2002 and May 16, 2002.
"SEC" means the Securities and Exchange Commission.
"Settlement Agreement" means this Settlement Agreement and
Exhibits A-J attached hereto.
"Spectranetics Securities" means any securities issued by
Spectranetics or any of its direct or indirect subsidiaries, including the
Common Stock and any other debt or equity securities of Spectranetics or any of
its direct or indirect subsidiaries that are outstanding as of the Execution
Date or may hereafter be issued, and options or warrants to purchase the Common
Stock or such other debt or equity securities.
Additional Terms - The terms "Participant," "Proxy" and
"Solicitation" shall be used as defined in Regulation 14A under the Exchange Act
(whether or not the pertinent securities are subject to Regulation 14A). The
terms "Beneficial Ownership" and "Group" shall
2
be used as defined in Regulation 13D-G under the Exchange Act. The terms
"Affiliate" and "Associate" shall be used as defined in Rule 12b-2 under the
Exchange Act.
RECITALS
A. WHEREAS, the Sweet 13D Group has previously filed
preliminary Proxy Materials in the Insurgent Campaign; and
B. WHEREAS, Spectranetics has terminated Xxxxxx and Xxxxx as
officers of Spectranetics; and
C. WHEREAS, Spectranetics and Xxxxxxxxxxxx have commenced the
State Action against Xxxxxx and Xxxxx; and
D. WHEREAS, Spectranetics has commenced the Federal Action
against the Sweet 13D Group; and
E. WHEREAS, the Parties have determined that it would be in
their best interests to resolve their disputes on the terms and conditions set
forth in this Settlement Agreement.
FOR AND IN CONSIDERATION of the mutual covenants contained
herein, the Parties, intending to be legally bound, hereby agree as follows:
1. Actions Upon The Execution Date.
a) Press Release. Upon the Execution Date, Spectranetics and the
Sweet 13D Group shall issue the joint press release that is attached hereto as
Exhibit A to this Settlement Agreement (with no further modifications or
amendments thereto). During the Interim Period, no Party or any of its
respective Affiliates, attorneys, Associates or representatives shall issue any
other press release, statement, or other public comment that is inconsistent
with, or is otherwise contrary to, any statement in such press release, or that
relates to any of the other Parties or this Settlement Agreement and shall make
no press release, statement or other public comment relating to the other
Parties or the Settlement Agreement that is not required by law. In addition,
following the Effective Date, no Party or any of its respective Affiliates,
attorneys, Associates or representatives shall issue any press release,
statement or other public comment that is inconsistent, or otherwise contrary
to, this Settlement Agreement. As used in this Settlement Agreement, "public
comment" shall include any content appearing on a web site located at
xxx.xxxxxxxxxx.xxx or on any other web site. The Sweet 13D Group agrees that,
following the Effective Date, it will shut down its present web site and no
Party which is a member of the Sweet 13D Group will establish any web site
relating in whole or in part to Spectranetics.
b) Advance Notice Bylaw. Within one (1) business day of the Execution
Date, the Board will adopt an advance notice amendment to the bylaws of the
Company in the form of Exhibit B to this Settlement Agreement. Xxxxxx agrees to
waive notice of the Board meeting at which the bylaw amendment will be
considered.
3
c) Notice of 2002 Annual Meeting. Within one (1) business day of the
Execution Date, the Company will make a public announcement that the 2002 Annual
Meeting will take place on a date certain that will trigger the proviso to the
second sentence of Section 1.3(A)(2) of the bylaw amendment adopted pursuant to
Section 1(b) of this Settlement Agreement, and will require any stockholder
nominations of Director candidates for the 2002 Annual Meeting to be submitted
within ten (10) days of such public announcement. The Company reserves the right
to further postpone or adjourn the 2002 Annual Meeting.
d) Temporary Standstill. During the Interim Period, no Party shall
take any action with respect to the Actions, the Insurgent Campaign, the
Proposals, or any other matter related to the voting at the 2002 Annual Meeting,
including, but not limited to, filing any proxy materials or Schedules 13D with
the SEC, provided, however, that the following communications may be made by the
Parties (the "Permitted Communications"): filings with the SEC that are (1)
required to disclose or implement this Settlement Agreement, (2) responsive to
comments, inquiries or requests made by the SEC concerning the items described
in subsection (1), or (3) necessary, in the sole discretion of the Sweet 13D
Group, to effect the withdrawal of members from the Sweet 13D Group.
Additionally, Spectranetics will notify the Sweet 13D Group if any Person makes
or proposes to make any proposal for stockholder consideration or nominations of
Director candidates in connection with the 2002 Annual Meeting during the
Interim Period. If such proposal(s) or nomination(s) are made, Spectranetics has
the right to request that one or more members of the Sweet 13D Group cooperate
with Spectranetics to dissuade that insurgent stockholder from pursuing those
nomination(s) or proposal(s). Any discussions between any member of the Sweet
13D Group and an insurgent stockholder that occur as a result of a request by
Spectranetics shall also be Permitted Communications.
2. Non-Occurrence of the Effective Date. In the event the Effective Date
does not occur, this Settlement Agreement shall immediately terminate and become
null and void; each Party shall have the same rights, obligations and claims
that it had prior to the Execution Date; and the negotiation and content of this
Settlement Agreement shall not be offered or considered as evidence in any legal
proceeding between or among the Parties; provided, however, that each Party
shall be responsible for any breach of this Settlement Agreement occurring prior
to such termination.
3. Actions Triggered By The Effective Date. Upon execution of this
Settlement Agreement, the following documents shall be executed; provided,
however, that no such document shall be effective unless or until the Effective
Date occurs:
a) Mutual Releases. The Parties shall execute the mutual release in
the form of Exhibit C of this Settlement Agreement;
b) Xxxxxx Employment. Xxxxxx shall execute the resignation letter
attached to this Settlement Agreement as Exhibit D resigning from the Board, and
Xxxxxx and the Company shall execute the Xxxxxx Separation Agreement in the form
of Exhibit E of this Settlement Agreement;
c) Xxxxx Employment. Xxxxx and the Company shall execute the Xxxxx
Separation Agreement that is attached hereto as Exhibit F of this Settlement
Agreement; and
4
d) Ms. Sweet Employment. Ms. Sweet shall execute the resignation
letter attached to this Settlement Agreement as Exhibit G, and Ms. Sweet and the
Company shall execute the Sweet Separation Agreement in the form of Exhibit H of
this Settlement Agreement.
4. Dismissal. Upon the Effective Date, Xxxxxxxxxxxx and the Company
shall cause their counsel to execute and file Notices of Voluntary Dismissal,
dismissing with prejudice all of the claims set forth in both of the Actions, as
to all Parties to the Actions. Such dismissals shall be in the forms attached
hereto as Exhibit I and Exhibit J (the "Notice of Voluntary of Dismissal").
Counsel to the Company and Xxxxxxxxxxxx shall file the Notices of Voluntary
Dismissal with the United States District Court for the District of Delaware
(for the Federal Action) and the Court of Chancery of the State of Delaware (for
the State Action) on the Effective Date. The Parties shall take such further
action, if any, as may be necessary to obtain the prompt dismissal with
prejudice of the Actions.
5. Cessation of Insurgent Campaign. On the Effective Date, the Sweet 13D
Group shall withdraw all of its nominations for election of any Director and all
other Proposals for adoption at the 2002 Annual Meeting. Pursuant to Section 9
below, no member of the Sweet 13D Group will make any further proposals for
adoption at the 2002 Annual Meeting. After the Effective Date and within two (2)
business days of the Company's written request, each member of the Sweet 13D
Group shall grant to the Company or its designee(s) an irrevocable proxy to vote
in its discretion all Common Stock beneficially owned by such member at the 2002
Annual Meeting.
6. Payment of Expenses.
a) Mr. Sweet's Fees. Within five (5) days after the Execution Date,
Mr. Sweet shall provide Spectranetics with documentation establishing the costs
of his legal and other expenses in connection with the Insurgent Campaign
(including, without limitation, those costs and attorney's fees related to the
negotiation and execution of this Settlement Agreement). On the Effective Date,
Spectranetics will reimburse Mr. Sweet for those expenses, in a single lump sum
cash payment, up to a maximum of one hundred thousand dollars ($100,000.00).
b) Ms. Sweet's Fees. Within five (5) days after the Execution Date,
Ms. Sweet shall provide Spectranetics with documentation establishing the costs
of her legal expenses in connection with her resignation from the Company and
matters that are the subject of this Settlement Agreement (including, without
limitation, those costs and attorney's fees related to the negotiation and
execution of this Settlement Agreement). On the Effective Date, Spectranetics
will reimburse Ms. Sweet for those expenses, in a single lump sum cash payment,
up to a maximum of five thousand dollars ($5,000.00).
c) Other Fees and Expenses. Except as otherwise specified herein,
each Party shall bear its own costs and attorney's fees incurred in connection
with the Insurgent Campaign and the Action (including, without limitation, those
costs and attorney's fees related to the negotiation and execution of this
Settlement Agreement). Nothing contained in this Settlement Agreement shall be
deemed to alter, affect or release any claims by any Party against their
insurers.
5
7. New Unaffiliated Directors. Following the Effective Date, two
positions on the Board shall be filled by New Unaffiliated Directors. One New
Unaffiliated Director shall serve a term of two years and one New Unaffiliated
Director shall serve a term of one year, each subject to reelection in
accordance with the Company's bylaws, as amended. The Company shall engage
Xxxxxxxx & Struggles to conduct a search for, and review the qualifications and
independence of, the New Unaffiliated Directors. The Company will request that
Xxxxxxxx & Struggles provide a list of potential New Unaffiliated Directors to
the Company and Mr. Sweet on or before June 30, 2002, and the Parties shall use
their respective commercially reasonable efforts to select New Unaffiliated
Directors as soon as practicable thereafter. Each New Unaffiliated Director
shall be subject to the approval in good faith of the Board and Mr. Sweet (and
no other Party), which approval shall not be unreasonably withheld. One of the
existing Directors of the Company (in addition to Xx. Xxxxxx) shall retire as a
Director immediately prior to replacement with a New Unaffiliated Director.
8. Outside Director Equity Incentive Program. Within ten (10) business
days of the Effective Date, the Company will retain a nationally recognized
consultant of its choice to recommend a program for equity incentives for
outside Directors. The Company will submit a program based on such
recommendations for a vote of the stockholders at the 2002 Annual Meeting. The
Sweet 13D Group will vote in favor of such program based on the recommendations
of such outside consultant.
9. Standstill. Between the Execution Date and the fourth anniversary of
the Execution Date, except as expressly authorized by Section 1 above during the
Interim Period, each member of the Sweet 13D Group (including XxXxxxxx solely in
his individual capacity but excluding the obligations of subsection (a)(ii) and
(a) (iii) below), agrees that it and its respective Affiliates shall not,
without the prior written consent of the Board, which consent may be withheld in
its sole and absolute discretion, directly or indirectly, alone or in concert
with any other Person:
a) (i) acquire, offer to acquire or agree to acquire, directly or
indirectly, by purchase or otherwise, Beneficial Ownership of any Spectranetics
Securities (or any direct or indirect rights, options or warrants for any
Spectranetics Securities, except as may be employed through hedging or similar
risk management strategies), other than the Spectranetics Securities that such
Person Beneficially Owns as of the date hereof as referenced in Section 12(c) of
this Settlement Agreement, provided, however, that XxXxxxxx may acquire
additional common stock on the open market to the extent that his total
Beneficial Ownership does not exceed 300,000 shares of Common Stock; (ii)
encourage any Person to acquire, or (iii) advise any Person with respect to the
acquisition or proposed acquisition of, Spectranetics Securities other than
attempts to dispose of such aforementioned Spectranetics Securities that such
Person Beneficially Owns as of the date hereof; provided, however, that this
Section (a) shall not apply to acquisitions resulting from (x) the exercise of
the vested options held by Xxxxxx, Xxxxx or Sweet; or (y) stock splits, reverse
stock splits or other reclassifications affecting all outstanding Spectranetics
Securities (or any class(es) thereof) or stock dividends or other pro rata
distributions by Spectranetics or its direct or indirect subsidiaries to all
holders of Spectranetics Securities (or any class(es) thereof) or from exercise
of any rights so distributed;
6
b) solicit, encourage any other Person to solicit, advise any Person
with respect to the Solicitation of, or in any other way participate in, endorse
or facilitate any Solicitation of, Proxies or consents with respect to any
Spectranetics Securities, or become a Participant, or otherwise engage in any
Solicitation of Proxies or consents (A) with respect to any matter submitted or
to be submitted to the vote of the holders of any Spectranetics Securities at
any annual or special meeting or by written consent, including, without
limitation, with respect to the election of Directors of Spectranetics in
opposition to the nominees recommended by the Board or otherwise for the purpose
of influencing or acquiring control of the management of Spectranetics, or (B)
for the purpose of calling a special meeting of Spectranetics' stockholders or
the holders of any Spectranetics Securities;
c) advise or seek to advise any Person with respect to the voting of
any Spectranetics Securities;
d) submit, encourage any other Person to submit, advise or assist any
Person with respect to the submission of, or otherwise participate in, or
endorse, or facilitate any nominations or proposals to Spectranetics or to the
holders of Spectranetics Securities for consideration by the holders of any
Spectranetics Securities at any annual or special meeting of such holders or in
any action to be taken by written consent pursuant to Spectranetics' charter or
bylaws, Rule 14a-3 under the Exchange Act, the provisions of any document
governing the terms of any such Spectranetics Securities or governing the rights
of the holders thereof, or otherwise;
e) otherwise take any action to request a special meeting of the
holders of any Spectranetics Securities;
f) request, or take any action to obtain or retain, any list of
holders of Common Stock;
g) deposit any Spectranetics Securities in a voting trust or subject
them to a voting agreement or other agreement or arrangement of similar effect
or otherwise join or form a partnership, limited partnership, limited liability
company, syndicate or other Group (except insofar as a Group consisting solely
of the members of the Sweet 13D Group shall be deemed to exist at the Execution
Date) for the purpose of acquiring, holding, voting or disposing of any
Spectranetics Securities, or for the purpose of circumventing or avoiding any of
the provisions of this Settlement Agreement, encourage, advise or assist any
Person to do any of the foregoing;
h) engage in, or offer, agree or propose to engage in, any
acquisition of the Company or substantially all of its assets (other than to
participate therein as a stockholder on terms generally available to all of
Spectranetics' stockholders); or arrange, or in any way participate, directly or
indirectly, in any financing for any such transaction or for the purchase by any
person of any Spectranetics Securities or any assets of Spectranetics;
i) otherwise act (x) to seek representation on the Board, (y) to seek
the removal of any members of, or a change in the composition or size of, the
Board, or (z) to acquire control of Spectranetics or any of its securities or
assets, provided, however, that this subsection (z) shall not apply to
acquisitions resulting from (i) the exercise of the vested options held by
Xxxxxx, Xxxxx or Xx. Xxxxx; or (ii) stock splits, reverse stock splits or other
7
reclassifications affecting all outstanding Spectranetics Securities (or any
class(es) thereof) or stock dividends or other pro rata distributions by
Spectranetics or its direct or indirect subsidiaries to all holders of
Spectranetics Securities (or any class(es) thereof) or from exercise of any
rights so distributed;
j) publicly disclose any intent, purpose, plan or proposal with
respect to the Company, its Board, management, policies, or affairs or any of
its securities or assets, or take any action that could require the Company to
make any public disclosure relating to any such intent, purpose, plan or
proposal; or
k) assist, advise, encourage, facilitate or enter into any agreement
or arrangement to assist or advise, any other Person in taking any action
referenced in any of Sections 9(a) through (j) above.
10. Non-Disparagement.
a) From and after the Execution Date, no member of the Sweet 13D
Group shall disparage, criticize, or make any negative statements regarding
Spectranetics, the Board, its policies, or any member thereof.
b) From and after the Execution Date, Spectranetics and its
Affiliates shall not disparage, criticize or make any negative statements
regarding the Sweet 13D Group, any member of the Sweet 13D Group, its (or any of
its members') Affiliates or any family member of a Sweet 13D Group member
(together, the "13D Group Protected Persons").
11. No Admission of Liability or Wrongdoing. This Settlement Agreement
and any proceedings taken hereunder are not and shall not in any way be
construed as or deemed to be evidence of any admission or concession on the part
of any Party of (i) the merits or lack of merits of any claim asserted in the
Actions, (ii) the merits or lack of merits in any contention in the Schedule 13D
or the Proxy Materials; or (iii) any liability or wrongdoing whatsoever, which
liability and wrongdoing are hereby expressly denied and disclaimed by each of
the Parties.
12. Representations and Warranties of the Sweet 13D Group. Each member
of the Sweet 13D Group, severally and not jointly, represents and warrants to
Spectranetics and Xxxxxxxxxxxx as follows:
a) Such member of the Sweet 13D Group has the requisite legal power
and authority to execute, deliver and carry out this Settlement Agreement, and
has taken all necessary legal action to authorize the execution, delivery and
performance of this Settlement Agreement and the transactions contemplated
hereby.
b) This Settlement Agreement has been duly and validly authorized,
executed and delivered by such member of the Sweet 13D Group, and constitutes a
valid and binding obligation, enforceable against such Party in accordance with
its terms.
c) Neither such member of the Sweet 13D Group nor any of its
Affiliates Beneficially Owns, or has any direct, indirect or contingent
pecuniary interest in, any Spectranetics Securities other than as disclosed in
the Schedule 13D.
8
d) Neither such member of the Sweet 13D Group nor any of its
Affiliates (to the best of such member's knowledge) is a member of any Group
with respect to Spectranetics Securities and there are no other persons who are
part of such a Group with it or any of its Affiliates (to the best of such
member's knowledge), except as disclosed in the Schedule 13D.
13. Representations and Warranties of Xxxxxxxxxxxx. Xxxxxxxxxxxx
represents and warrants to each of the members of the Sweet 13D Group as
follows:
a) Xxxxxxxxxxxx has the requisite legal power and authority to
dismiss the claims asserted by him in the State Action.
b) Xxxxxxxxxxxx is authorized to grant the Release in the form
attached hereto as Exhibit C.
c) The obligations imposed on Xxxxxxxxxxxx by Sections 3(a) and 4 of
this Settlement Agreement constitute his valid and binding obligations,
enforceable in accordance with those terms.
14. Representations and Warranties of Spectranetics. Spectranetics
represents and warrants to each member of the Sweet 13D Group as follows:
a) Spectranetics is duly organized and validly existing and in good
standing under the laws of the State of Delaware, has the requisite corporate
power and authority to execute, deliver and carry out this Settlement Agreement,
and has taken all necessary corporate action to authorize the execution,
delivery and performance of this Settlement Agreement and the transactions
contemplated hereby.
b) This Settlement Agreement has been duly and validly authorized,
executed and delivered by Spectranetics and constitutes a valid and binding
obligation, enforceable against Spectranetics in accordance with its terms.
c) Spectranetics is authorized to execute and deliver this
Settlement Agreement and the provisions of this Settlement Agreement shall be a
valid and binding obligation, enforceable against Spectranetics in accordance
with its terms.
15. No Duress, etc. The Parties agree that this Settlement Agreement is
entered into without duress, in good faith and for sufficient consideration, and
that it is fair, just and reasonable to all Parties.
16. Full Knowledge; Independent Advice, etc. This Settlement Agreement
is entered into with full knowledge of any and all rights which the Parties may
have by reason of the pending litigation. All Parties have received or have had
made available to them all financial and other information they or their counsel
considered necessary to an informed judgment concerning the Settlement
Agreement. Each Party has received independent legal advice, has conducted such
investigation as its counsel thought appropriate, and has consulted with such
other independent advisors as each of them and their counsel deemed appropriate,
regarding the Actions, this Settlement Agreement and their rights and asserted
rights in connection therewith. None of the Parties is relying upon any
representations or statements made by any other Party, or
9
such other Party's employees, agents, representatives or attorneys, regarding
this Settlement Agreement or its preparation except to the extent such
representations are expressly set forth herein.
17. Miscellaneous.
a) XxXxxxxx Individual Capacity. This Settlement Agreement shall
apply to XxXxxxxx individually, and nothing contained herein shall prohibit
XxXxxxxx from performing his duties to his current or future clients and his
current or future employer in his capacity as a securities broker.
b) Reasonable Efforts. All Parties hereto agree to exercise all
reasonable efforts and to take all reasonable steps necessary to effectuate the
settlement set forth in this Settlement Agreement.
c) Successors. This Settlement Agreement shall be binding upon and
inure to the benefit of the Parties hereto and their respective heirs,
successors and assigns, and upon any corporation or other entity into or with
which any Party hereto may merge, combine or consolidate (provided that the
Party is the survivor in such merger, combination or consolidation).
d) Governing Law. This Settlement Agreement and all disputes arising
out of or relating to it shall be governed by and construed and enforced in
accordance with the laws of the State of Delaware, without reference to the
conflict of laws principles thereof.
e) Amendments. Any provision in this Settlement Agreement may be
amended or waived by an instrument in writing signed by Spectranetics and each
member of the Sweet 13D Group, and any such amendment or waiver shall be binding
on all Parties. No amendment to or waiver of any other provision hereof shall be
effective as against any Party unless such Party agrees to such amendment or
waiver in writing. Notwithstanding the foregoing, any amendment or waiver of
provisions relating solely to an extension of the Interim Period may be effected
upon approval by Spectranetics, Mr. Sweet and Xx. Xxxxxx.
f) Authority. Each person executing this Settlement Agreement
represents that he or it has read and fully understands this Settlement
Agreement and that he or it has the authority to execute this Settlement
Agreement in his individual capacity or in the capacity identified on the
signature page below.
g) Notices. Any notice or communication required or permitted to be
given to any Party pursuant to this Settlement Agreement shall be delivered by
hand, transmitted by telecopier or sent by registered or certified mail to the
address(es) set forth below, or to such other address as any Party shall
designate by notice in compliance with this Section. Any notice sent in
accordance with this Section shall be deemed received one day after transmission
if telecopied (and a confirmation obtained) or delivered by hand, and five
business days after deposit if mailed.
10
Notice to Spectranetics: The Spectranetics Corporation
Attn: Xxxxx Xxxxxxxxxxxx
00 Xxxxxxxx Xx.
Xxxxxxxx Xxxxxxx, XX 00000-0000
With a copy to: Xxxxxx & Xxxxxxx
Attn: Xxxxxxxxxxx Xxxxxxx, Esq.
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Notice to Xxxxxx Xxxxxx: Xxxxxx X. Xxxxxx
0000 Xxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000
With a copy to: Xxxxxxxxxx, Hyatt & Xxxxxx
Attn: Xxxx Xxxxxxx, Esq.
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Telecopy: (000) 000-0000
Notice to Xxxx Xxxxx: Xxxx Xxxxx
000 Xxxxxxxxx Xxxx
Xxxxxxxx Xxxxxxx, XX 00000
With a copy to: Xxxxxxxxxx, Xxxxx & Xxxxxx
Attn: Xxxx Xxxxxxx, Esq.
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Telecopy: (000) 000-0000
Notice to Xxxxxx Xxxxx: Xxxxxx X. Xxxxx
c/o Fireplace Center
10470 Xxxxxxx
Xxxxxxxx Xxxx, XX 00000
With a copy to: Faegre & Xxxxxx LLP
Attn: Xxxxxxx Xxxxxx, Esq.
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Telecopy: (000) 000-0000
11
Notice to Xxxxxx Xxxxx: Xxxxxx X. Xxxxx
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000
With a copy to: Brega & Xxxxxxx
Attn: Xxxxx Mall, Esq.
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Telecopy: (000) 000-0000
Notice to Xxxxxxxx XxXxxxxx: RBC Xxxx Xxxxxxxx
Attn: Xxxxxxxx XxXxxxxx
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Telecopy: (000) 000-0000
h) Specific Performance and Jurisdiction. Each of the Parties
acknowledges and agrees that irreparable harm would occur if any provision of
this Settlement Agreement were not performed in accordance with the terms
thereof, or were otherwise breached, and that such harm could not be remedied by
an award of money damages. Accordingly, the Parties hereto agree that any
non-breaching party shall be entitled to an injunction to prevent breaches of
this Settlement Agreement and to enforce specifically the terms and provisions
hereof. More specifically, each of the Parties hereto hereby agrees that any
action or proceeding arising out of or relating to this Settlement Agreement
shall be commenced in any State or Federal Court having subject matter
jurisdiction in the State of Delaware, and each Party consents to the personal
jurisdiction of and venue in Delaware and agrees further that service of process
or notice in any such action or proceeding shall be effective if given in the
manner set forth in Section 17(g) of this Settlement Agreement.
i) Disputes; Attorneys' Fees. If a Party is required to arbitrate or
seek judicial enforcement of his, her or its rights under this Settlement
Agreement, the substantially prevailing Party in such proceeding shall be
entitled to be reimbursed by the other Party for all of the first Party's
reasonable attorneys' fees and expenses.
j) Counterparts. This Settlement Agreement may be executed in one or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. A signature page shall be
deemed an original if it is transmitted to each Party by facsimile and the
original is received by the other Parties within two (2) business days of the
facsimile transmission.
k) Severability. If this Settlement Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable against either of
Spectranetics or Xxxxxxxxxxxx, such holding shall in no way render the
Settlement Agreement invalid, void or unenforceable against the other such
party, and if this Settlement Agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable against any member of the
Sweet 13D Group, such holding shall in no way render the Settlement Agreement
invalid, void or unenforceable
12
against any other member of the Sweet 13D Group. Nothing in this Section 17(k)
shall be construed as excusing any breach of a representation or warranty made
in this Settlement Agreement, and nothing herein shall be deemed a waiver by any
Party of any rights or claims arising from any such breach.
l) Entire Agreement; No Third-Party Beneficiaries; Assignment. This
Settlement Agreement (i) constitutes the entire agreement among the parties with
respect to the subject matter hereof and supersedes all other prior agreements
and understandings, both written and oral, among the Parties with respect to the
subject matter hereof and is not intended to confer upon any person other than
the Parties hereto any rights or remedies hereunder and (ii) shall not be
assigned by operation of law or otherwise without the prior written consent of
the other Parties. Any attempted assignment or transfer in violation of this
Section shall be void and of no effect.
m) Rules of Construction. The Parties agree that the following rules
shall govern the interpretation and construction of this Agreement:
i. All Section headings are for convenience only and shall not
limit, alter, or otherwise affect the construction or interpretation of
this Agreement.
ii. Whenever the context so requires, the neuter gender shall
include the feminine or masculine, and vice versa.
13
iii. Any rule of construction disfavoring the drafting Party
shall not apply in the construction of any provision of this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Settlement Agreement
as of the date first written above.
DATED: June 6, 2002 XXXXXX XXXXXX
/s/ XXXXXX XXXXXX
----------------------------------------
DATED: June 6, 2002 XXXX XXXXX
/s/ XXXX XXXXX
----------------------------------------
DATED: June 6, 2002 XXXXXX XXXXX
/s/ XXXXXX XXXXX
----------------------------------------
DATED: June 6, 2002 XXXXXX XXXXX
/s/ XXXXXX XXXXX
----------------------------------------
DATED: June 6, 2002 XXXXXXXX XXXXXXXX
/s/ XXXXXXXX XXXXXXXX
----------------------------------------
DATED: June 6, 2002 THE SPECTRANETICS CORPORATION
By /s/ XXXXX XXXXXXXXXXXX
-------------------------------------
Xxxxx Xxxxxxxxxxxx
Acting Chief Executive Officer
DATED: June 0, 0000 XXXXX XXXXXXXXXXXX
/x/ XXXXX XXXXXXXXXXXX
----------------------------------------
14
[SPECTRANETICS LOGO]
NOT FOR IMMEDIATE RELEASE
MEDIA AND INVESTOR CONTACT:
Xxxx Xxxxxxx / Xxxxxxx Xxxxxxx / 212-371-5999
Xxxxx Xxxxx / 213-630-6550 / 000-000-0000
The Xxxxxxxxx XxxXxxxxx Group, Inc.
SPECTRANETICS, SWEET GROUP AGREE TO RESOLUTION
OF PROXY CONTEST
COLORADO SPRINGS, COLO., JUNE XX, 2002 -- The Spectranetics Corporation (NASDAQ:
SPNC) announced today that it has reached a definitive agreement that is
expected to resolve all disputes between Spectranetics and Xxxxxx Xxxxx, Xxxxxx
Xxxxxx, Xxxx Xxxxx and certain other Spectranetics stockholders (the Sweet
Group). The Sweet Group has agreed to withdraw its Director nominees as well as
the other matters it had proposed for the annual meeting of stockholders and has
agreed to vote for the election of Xxxxx Xxxxxxxxxxxx and Xxxx Xxxxxxx, who are
current members of Spectranetics' Board of Directors. The resolution will also
settle all claims between Spectranetics and Xx. Xxxxxx, Xx. Xxxxx and Xxxxxx
Xxxxx, each of whom separated from the Company.
Spectranetics said that it will announce a new date for its Annual Meeting of
Stockholders by June 7, 2002. In order to assure no further expenditure of funds
on a proxy contest, the effectiveness of the settlement is conditioned on the
absence of any additional nominations of director candidates in connection with
the Company's 2002 annual meeting of stockholders.
Other terms of the agreement include:
- The nomination of two new Directors who are unaffiliated with, and
independent of, any of Spectranetics' current Directors and the Sweet
Group. The new Directors will replace Xx. Xxxxxx and another current member
of Spectranetics' Board. Xx. Xxxxxx will resign upon the effective date of
the Settlement Agreement and the other Director will retire from the Board
upon the appointment of a replacement director. Xxxxxxxx & Struggles, a
nationally recognized executive recruiting firm, has been retained by
Spectranetics to assist in identifying the new Directors.
- The hiring of a consultant to recommend a program for equity incentives,
including stock options, for outside Directors. The recommendations will be
submitted to Spectranetics' stockholders for a vote at the annual meeting.
The Sweet Group has agreed to vote in favor of the recommendations at the
annual meeting.
- An agreement concerning the separation of the employment of Xx. Xxxxxx (the
former President and Chief Executive Officer) and of Xxxx Xxxxx (the former
Chief Financial
Exhibit A-1
Officer). In addition, Xxxxxx Xxxxx (Vice President of Corporate Relations)
has tendered her resignation.
- The members of the Sweet Group have accepted customary standstill
provisions not to serve or attempt to serve on Spectranetics' Board or
influence any matter before the Board.
- All litigation between the Company and the Sweet Group will be dismissed.
Spectranetics is a medical device Company that develops, manufactures and
markets a proprietary excimer laser system and related accessory products that
deliver excimer laser energy for use in minimally invasive surgical procedures
within the cardiovascular system. The Company's CVX-300(R) excimer laser is the
only system approved by the Food and Drug Administration (FDA) for multiple
cardiovascular procedures, including coronary atherectomy and the removal of
problematic pacemaker and defibrillator leads. The Company is currently
conducting two investigational trials designed to obtain FDA approval to market
products in the United States for additional applications. The XXXX (Laser
Angioplasty for Critical Ischemia) trial tests laser atherectomy to improve
circulation to the lower leg. The PELA (Peripheral Excimer Laser Angioplasty)
trial deals with blockages in arteries in the upper leg. Nearly all of the
Company's FDA-approved and investigational applications have received
Communautes Europeennes (CE) xxxx registration for marketing within Europe.
Spectranetics received regulatory approval from the Japanese Ministry of Health
and Welfare to market its laser and various sizes of its Extreme(R) and
Vitesse(R) C coronary catheters in Japan in October of 2001, and is currently
pursuing reimbursement approval there.
# # #
Additional Information: The Company has previously mailed its Proxy Statement to
stockholders for its 2002 Annual Meeting. The Company will file with the SEC and
mail to stockholders a supplement to its Proxy Statement. Additional copies of
the proxy materials may be obtained from Mackenzie Partners, Inc., the proxy
solicitor for the Company, by telephone at 000-000-0000 or by email at
xxxxx@xxxxxxxxxxxxxxxxx.xxx. Copies may also be obtained from the SEC by
accessing the files for the Company at the SEC Web site at xxx.xxx.xxx or by
writing to the Company at 00 Xxxxxxxx Xxxxx, Xxxxxxxx Xxxxxxx, XX 00000,
Attention: acting chief executive officer. The participants in this solicitation
on behalf of the Company are: Xxxxx Xxxxxxxxxxxx, Xxxxxxxxx Xxxx, Xx., X. Xxxx
Xxxxxxxx, Xxxxxx X. Xxxxxx and Xxxx X. Xxxxxxx. Collectively these individuals
beneficially own 850,853 shares or approximately 3.6% of the outstanding shares,
including options for shares exercisable within 60 days. The Board has agreed
that no stock options will be granted to non-employee directors until and unless
a plan is submitted to, and approved by, stockholders of the Company. Xx.
Xxxxxxxxxxxx will serve as acting CEO for no additional compensation. Other
persons may also become participants on behalf of the Company. Such information
and additional information on these individuals is more fully described in the
Proxy Statement as may be supplemented from time to time.
Exhibit A-2
Section 1.3 Notice of Stockholder Business and Nominations.
(A) Annual Meetings of Stockholders. (1) Nominations of persons for
election to the Board of Directors of the Corporation and the proposal of
business to be considered by the stockholders may be made at an annual meeting
of stockholders only (a) pursuant to the Corporation's notice of meeting (or any
supplement thereto), (b) by or at the direction of the Board of Directors or (c)
by any stockholder of the Corporation who was a stockholder of record of the
Corporation at the time the notice provided for in this Section 1.3 is delivered
to the Secretary of the Corporation, who is entitled to vote at the meeting and
who complies with the notice procedures set forth in this Section 1.3.
(2) For nominations or other business to be properly brought before
an annual meeting by a stockholder pursuant to clause (c) of paragraph (A)(1) of
this Section 1.3, the stockholder must have given timely notice thereof in
writing to the Secretary of the Corporation and any such proposed business other
than the nominations of persons for election to the Board of Directors must
constitute a proper matter for stockholder action. To be timely, a stockholder's
notice shall be delivered to the Secretary at the principal executive offices of
the Corporation not later than the close of business on the sixtieth day nor
earlier than the close of business on the ninetieth day prior to the first
anniversary of the preceding year's annual meeting (provided, however, that in
the event that the date of the annual meeting is more than thirty days before or
after the date of the first anniversary of the preceding year's annual meeting,
notice by the stockholder to be timely must be so received not earlier than the
close of business on the ninetieth day prior to such annual meeting and not
later than the close of business on the later of the sixtieth day prior to such
annual meeting or the tenth day following the day on which public announcement
of the date of such meeting is first made by the Corporation). In no event shall
the public announcement of an adjournment or postponement of an annual meeting
commence a new time period (or extend any time period) for the giving of a
stockholder's notice as described above. Such stockholder's notice shall set
forth: (a) as to each person whom the stockholder proposes to nominate for
election as a director (i) all information relating to such person that is
required to be disclosed in solicitations of proxies for election of directors
in an election contest, or is otherwise required, in each case pursuant to and
in accordance with Regulation 14A under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and (ii) such person's written consent to being
named in the proxy statement as a nominee and to serving as a director if
elected; (b) as to any other business that the stockholder proposes to bring
before the meeting, a brief description of the business desired to be brought
before the meeting, the text of the proposal or business (including the text of
any resolutions proposed for consideration and in the event that such business
includes a proposal to amend the By-laws of the Corporation, the language of the
proposed amendment), the reasons for conducting such business at the meeting and
any material interest in such business of such stockholder and the beneficial
owner, if any, on whose behalf the proposal is made; and (c) as to the
stockholder giving the notice and the beneficial owner, if any, on whose behalf
the nomination or proposal is made (i) the name and address of such stockholder,
as they appear on the Corporation's books, and of such beneficial owner, (ii)
the class and number of shares of capital stock of the Corporation which are
owned beneficially and of record by such stockholder and such beneficial owner,
(iii) a representation that the stockholder is a holder of record of stock of
the Corporation entitled to vote at such
Exhibit B-1
meeting and intends to appear in person or by proxy at the meeting to propose
such business or nomination, and (iv) a representation whether the stockholder
or the beneficial owner, if any, intends or is part of a group which intends (a)
to deliver a proxy statement and/or form of proxy to holders of at least the
percentage of the Corporation's outstanding capital stock required to approve or
adopt the proposal or elect the nominee and/or (b) otherwise to solicit proxies
from stockholders in support of such proposal or nomination. The foregoing
notice requirements shall be deemed satisfied by a stockholder if the
stockholder has notified the Corporation of his or her intention to present a
proposal at an annual meeting in compliance with Rule 14a-8 (or any successor
thereof) promulgated under the Exchange Act and such stockholder's proposal has
been included in a proxy statement that has been prepared by the Corporation to
solicit proxies for such annual meeting. The Corporation may require any
proposed nominee to furnish such other information as it may reasonably require
to determine the eligibility of such proposed nominee to serve as a director of
the Corporation.
(3) Notwithstanding anything in the second sentence of paragraph
(A)(2) of this Section 1.3 to the contrary, in the event that the number of
directors to be elected to the Board of Directors of the Corporation at an
annual meeting is increased and there is no public announcement by the
Corporation naming the nominees for the additional directorships at least one
hundred days prior to the first anniversary of the preceding year's annual
meeting, a stockholder's notice required by this Section 1.3 shall also be
considered timely, but only with respect to nominees for the additional
directorships, if it shall be delivered to the Secretary at the principal
executive offices of the Corporation not later than the close of business on the
tenth day following the day on which such public announcement is first made by
the Corporation.
(B) Special Meetings of Stockholders. Only such business shall be
conducted at a special meeting of stockholders as shall have been brought before
the meeting pursuant to the Corporation's notice of meeting. Nominations of
persons for election to the Board of Directors may be made at a special meeting
of stockholders at which directors are to be elected pursuant to the
Corporation's notice of meeting (1) by or at the direction of the Board of
Directors or (2) provided that the Board of Directors has determined that
directors shall be elected at such meeting, by any stockholder of the
Corporation who is a stockholder of record at the time the notice provided for
in this Section 1.3 is delivered to the Secretary of the Corporation, who is
entitled to vote at the meeting and upon such election and who complies with the
notice procedures set forth in this Section 1.3. In the event the Corporation
calls a special meeting of stockholders for the purpose of electing one or more
directors to the Board of Directors, any such stockholder entitled to vote in
such election of directors may nominate a person or persons (as the case may be)
for election to such position(s) as specified in the Corporation's notice of
meeting, if the stockholder's notice required by paragraph (A)(2) of this
Section 1.3 shall be delivered to the Secretary at the principal executive
offices of the Corporation not earlier than the close of business on the
ninetieth day prior to such special meeting and not later than the close of
business on the later of the sixtieth day prior to such special meeting or the
tenth day following the day on which public announcement is first made of the
date of the special meeting and of the nominees proposed by the Board of
Directors to be elected at such meeting. In no event shall the public
announcement of an adjournment or postponement of a special meeting commence a
new time period (or extend any time period) for the giving of a stockholder's
notice as described above.
Exhibit B-2
(C) General. (1) Only such persons who are nominated in accordance with
the procedures set forth in this Section 1.3 shall be eligible to be elected at
an annual or special meeting of stockholders of the Corporation to serve as
directors and only such business shall be conducted at a meeting of stockholders
as shall have been brought before the meeting in accordance with the procedures
set forth in this Section 1.3. Except as otherwise provided by law, the chairman
of the meeting shall have the power and duty (a) to determine whether a
nomination or any business proposed to be brought before the meeting was made or
proposed, as the case may be, in accordance with the procedures set forth in
this Section 1.3 (including whether the stockholder or beneficial owner, if any,
on whose behalf the nomination or proposal is made solicited (or is part of a
group which solicited) or did not so solicit, as the case may be, proxies in
support of such stockholder's nominee or proposal in compliance with such
stockholder's representation as required by clause (A)(2)(c)(iv) of this Section
1.3) and (b) if any proposed nomination or business was not made or proposed in
compliance with this Section 1.3, to declare that such nomination shall be
disregarded or that such proposed business shall not be transacted.
Notwithstanding the foregoing provisions of this Section 1.3, if the stockholder
(or a qualified representative of the stockholder) does not appear at the annual
or special meeting of stockholders of the Corporation to present a nomination or
business, such nomination shall be disregarded and such proposed business shall
not be transacted, notwithstanding that proxies in respect of such vote may have
been received by the Corporation.
(2) For purposes of this Section 1.3, "public announcement" shall
include disclosure in a press release reported by the Dow Xxxxx News Service,
Associated Press or comparable national news service or in a document publicly
filed by the Corporation with the Securities and Exchange Commission pursuant to
Section 13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this Section 1.3, a
stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth in this Section 1.3. Nothing in this Section 1.3 shall be deemed to affect
any rights (a) of stockholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act or
(b) of the holders of any series of Preferred Stock to elect directors pursuant
to any applicable provisions of the certificate of incorporation.
Exhibit B-3
MUTUAL RELEASE
This Mutual Release (the "Release") is entered into by and
among The Spectranetics Corporation, a Delaware corporation ("Spectranetics" or
the "Company") and Xxxxx Xxxxxxxxxxxx ("Xxxxxxxxxxxx"), on the one hand, and
Xxxxxx Xxxxx ("Mr. Sweet"), Xxxxxx Xxxxxx ("Xxxxxx"), Xxxx Xxxxx ("Xxxxx"),
Xxxxxxxx XxXxxxxx ("XxXxxxxx"), and Xxxxxx Xxxxx ("Ms. Sweet") (collectively,
the "Sweet 13D Group"), on the other hand, with reference to that certain
Agreement of Compromise and Settlement dated as of June 6, 2002 (the "Settlement
Agreement"). This Release shall only be effective upon the occurrence of the
Effective Date as defined in the Settlement Agreement. Capitalized terms not
otherwise defined in this Release shall have the meanings set forth in the
Settlement Agreement. All members of the Board of Directors of Spectranetics
shall be deemed to be "Affiliates" of Spectranetics for all purposes of this
Release.
SWEET 13D GROUP. For valuable consideration, the receipt and
adequacy of which are hereby acknowledged, each member of the Sweet 13D Group,
on behalf of itself and of all its Affiliates, agents, attorneys, successors and
assigns (the "Sweet Releasors"), hereby releases, acquits and forever discharges
Spectranetics, together with its respective present and former Affiliates,
officers, Directors, employees, agents, attorneys, spouses, children, successors
and assigns (collectively, the "Spectranetics Releasees"), of and from any and
all claims, contracts, debts, demands, causes of action (whether at law or
equity), demands, expenses and damages ("Claims") which such Sweet Releasors may
have had, or may now have, or may hereafter have (whether through operation of
law, assignment or subrogation), from the beginning of time to the Effective
Date, real or suspected, known or unknown, actual or contingent, direct or
derivative, including but not limited to any Claims relating to or arising out
of the subject matter covered by the Settlement Agreement including but not
limited to the employment or termination of employment of any member of the
Sweet 13D Group (collectively, the "Sweet 13D Group Released Claims"), excepting
only any action, cause of action or suit arising by virtue of the breach of the
Settlement Agreement.
Each member of the Sweet 13D Group represents and warrants
that there has been, and there will be, no assignment or other transfer of any
interest in any Sweet 13D Group Released Claims which they may have against the
Spectranetics Releasees, or any of them, and each member of the Sweet 13D Group
agrees to indemnify and hold harmless the Spectranetics Releasees, and each of
them, from and against any Sweet 13D Group Released Claims, liability, demands,
damages, costs, expenses and attorney's fees incurred by the Spectranetics
Releasees, or any of them, as a result of any person or entity asserting any
such assignment or transfer, or any rights in or to any Sweet 13D Group Released
Claims. These indemnification obligations shall not be conditioned upon any
payment by any member of the Sweet 13D Group.
Each member of the Sweet 13D Group agrees that if any person
or entity hereafter commences, joins in or in any manner seeks relief through
any suit arising out of, based upon or relating to any of the Sweet 13D Group
Released Claims, or in any manner asserts against the Spectranetics Releasees,
or any of them, any of the Sweet 13D Group Released Claims, then the Sweet 13D
Group, jointly and severally, will pay to the Spectranetics Releasees, and each
of
Exhibit C-1
them, in addition to any other damages caused thereby, all reasonable attorney's
fees incurred by the Spectranetics Releasees in defending or otherwise
responding to said suit or Claim.
Each member of the Sweet 13D Group further understands and
agrees that the execution of this Release shall not constitute or be construed
as an admission of any liability whatsoever on the part of any member of the
Sweet 13D Group or any other person or entity.
SPECTRANETICS. For valuable consideration, the receipt and
adequacy of which are hereby acknowledged, Spectranetics, on behalf of itself
and all of its Affiliates, successors and assigns (the "Spectranetics
Releasors"), hereby releases, acquits and forever discharges the Sweet 13D
Group, together with their respective present and former Affiliates, officers,
Directors, employees, agents, attorneys, spouses, children, successors and
assigns, and individually (collectively, the "Sweet 13D Group Releasees"), of
and from any and all claims, contracts, debts, demands, causes of action
(whether at law or equity), demands, expenses and damages ("Claims") which any
Spectranetics Releasor may have had, or may now have, or may hereafter have
(whether through operation of law, assignment or subrogation), from the
beginning of time to the Effective Date, real or suspected, known or unknown,
actual or contingent, direct or derivative, including but not limited to any
Claims relating to or arising out of the Actions or any of the matters claimed,
asserted or alleged, or that could have been claimed, asserted or alleged, in
the Actions or related to or arising out of the subject matter covered by the
Settlement Agreement including but not limited to the employment and termination
of employment of any member of the Sweet 13D Group (collectively, the
"Spectranetics Released Claims"), excepting only any action, cause of action or
suit arising by virtue of the breach of the Settlement Agreement.
Spectranetics represents and warrants that there has been, and
there will be, no assignment or other transfer of any interest in any
Spectranetics Released Claims which they may have against the Spectranetics
Releasees, or any of them, and Spectranetics agrees to indemnify and hold
harmless the Sweet 13D Group Releasees, and each of them, from and against any
Spectranetics Released Claims, liability, demands, damages, costs, expenses and
attorney's fees incurred by the Sweet 13D Group Releasees, or any of them, as a
result of any person or entity asserting any such assignment or transfer, or any
rights in or to any Spectranetics Released Claims. These indemnification
obligations shall not be conditioned upon any payment by Spectranetics.
Spectranetics agrees that if any person or entity hereafter
commences, joins in or in any manner seeks relief through any suit arising out
of, based upon or relating to any of the Spectranetics Released Claims, or in
any manner asserts against the Sweet 13D Group Releasees, or any of them, any of
the Spectranetics Released Claims, then Spectranetics will pay to the Sweet 13D
Group Releasees, and each of them, in addition to any other damages caused
thereby, all reasonable attorney's fees incurred by the Sweet 13D Group
Releasees in defending or otherwise responding to said suit or Claim.
Spectranetics further understands and agrees that the
execution of this Release shall not constitute or be construed as an admission
of any liability whatsoever on the part of Spectranetics or any other person or
entity.
Exhibit C-2
ADDITIONAL TERMS. With respect to each of the releases set
forth above, each person or entity granting or receiving such a release (i)
agrees that such releases do not preclude any Party hereto from seeking to
enforce any undertaking or promise contained in the Settlement Agreement or from
seeking redress for the breach of any representation or warranty contained in
the Settlement Agreement; (ii) agrees not to directly or indirectly encourage or
pursue with or before any federal, state or other governmental agency, authority
or court any claim or complaint against any of the persons or entities released
herein, including but not limited to any such claim or complaint relating to
matters covered by the Settlement Agreement (other than the enforcement of any
undertaking or promise contained herein), the Action, or any of the matters
claimed, asserted or alleged, or that could have been claimed, asserted or
alleged in the Action; and (iii) agrees not to challenge, and shall use its best
efforts to cause each of its affiliates, Associates and representatives not to
challenge, the validity of any provisions of the Settlement Agreement or this
Release.
This Release shall apply to XxXxxxxx individually, and nothing
contained herein shall prohibit XxXxxxxx from performing his duties to his
current or future clients and his current or future employer in his capacity as
a securities broker.
Except as may be otherwise required by law, the Sweet 13D
Group will not encourage or cooperate with plaintiffs in any pending or
subsequently initiated derivative, class action or shareholder litigation
related to Spectranetics or its directors. Except as may be otherwise required
by law, Spectranetics will not encourage or cooperate with plaintiffs in any
pending or subsequently initiated derivative, class action or shareholder
litigation related to Spectranetics to which any of the Sweet 13D Group is a
party. In the event that any part of the Settlement Agreement is temporarily,
preliminarily or permanently enjoined or restrained by a
Exhibit C-3
court of competent jurisdiction, the Parties hereto shall use their reasonable
best efforts to cause any such injunction or restraining order to be vacated or
dissolved or otherwise declared or determined to be of no further force or
effect.
IN WITNESS WHEREOF, the Parties have executed this Release as
of the date first written above.
DATED: June 6, 2002 XXXXXX XXXXXX
/s/ XXXXXX XXXXXX
----------------------------------------
DATED: June 6, 2002 XXXX XXXXX
/s/ XXXX XXXXX
----------------------------------------
DATED: June 6, 2002 XXXXXX XXXXX
/s/ XXXXXX XXXXX
----------------------------------------
DATED: June 6, 2002 XXXXXX XXXXX
/s/ XXXXXX XXXXX
----------------------------------------
DATED: June 6, 2002 XXXXXXXX XXXXXXXX
/s/ XXXXXXXX XXXXXXXX
----------------------------------------
DATED: June 6, 2002 THE SPECTRANETICS CORPORATION
By /s/ XXXXX XXXXXXXXXXXX
--------------------------------------
Xxxxx Xxxxxxxxxxxx
Acting Chief Executive Officer
DATED: June 0, 0000 XXXXX XXXXXXXXXXXX
/x/ XXXXX XXXXXXXXXXXX
----------------------------------------
Exhibit C-4
XXXXXX X. XXXXXX
[HOME ADDRESS]
June 6, 2002
VIA FACSIMILE
The Spectranetics Corporation
00 Xxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000-0000
Attn: Xxxxx Xxxxxxxxxxxx
RE: RESIGNATION FROM THE SPECTRANETICS CORPORATION ("SPECTRANETICS")
BOARD OF DIRECTORS (THE "BOARD")
To the Board:
Reference is hereby made to that certain Agreement of Compromise and
Settlement, by and among the Company and Xxxxx Xxxxxxxxxxxx, on the one hand,
and Xxxx Xxxxx, Xxxxx XxXxxxxx, Xxxxxx Xxxxx, Xxxxx Xxxxx and me, on the other
hand, dated as of June 6, 2002 (the "Settlement Agreement"). Capitalized terms
used herein have the meanings assigned to them in the Settlement Agreement.
I hereby resign as a member of the Board effective as of the Effective
Date.
Sincerely,
/s/ XXXXXX X. XXXXXX
Xxxxxx X. Xxxxxx
cc: Xxxx Xxxxxxx, Esq.
Kit Xxxxxxx, Esq.
Exhibit D-1
SEPARATION AGREEMENT
This Separation Agreement (the "Separation Agreement") is
entered into by and between The Spectranetics Corporation, a Delaware
corporation ("Spectranetics" or the "Company"), and Xxxxxx Xxxxxx ("Xxxxxx")
(each a "Party" and, collectively, the "Parties") with reference to that certain
Agreement of Compromise and Settlement dated as of June 6, 2002 (the "Settlement
Agreement"). This Separation Agreement shall only be effective upon the
occurrence of the Effective Date, as defined in the Settlement Agreement.
Capitalized terms not otherwise defined in this Separation Agreement shall have
the meanings set forth in the Settlement Agreement.
FOR AND IN CONSIDERATION of the mutual covenants contained
herein, the Parties, intending to be legally bound hereby, agree as follows:
1. Conditioned upon Xxxxxx'x continuing performance of all of
his obligations under this Separation Agreement and the Settlement Agreement,
Xxxxxx will receive the following benefits:
1.1. Severance. Xxxxxx'x separation from the Company as of
May 10, 2002 (the "Separation Date") is hereby confirmed. Spectranetics will pay
Xxxxxx severance equal to $290,000 (the "Severance"). The Severance shall be
payable in equal installments over the 12 months following the Separation Date
in accordance with the Company's normal payroll practices; provided, however,
(i) no payment will be made until after the Effective Date; (ii) the initial
payment after the Effective date will "catch" up for all payments otherwise due
Xxxxxx from the Separation Date and (iii) all payments of Severance shall be
subject to offset by the Premium Repayment and the Reimbursement pursuant to
Sections 1.4 and 2 below.
1.2. Medical and Dental Insurance. COBRA coverage shall be
provided for Xxxxxx through the earlier of eighteen (18) months after the
Separation Date or the date on which Xxxxxx commences other full time
employment. The Company shall pay a portion of the cost of such COBRA coverage
for the first twelve (12) months following the Separation Date, or the date
Xxxxxx commences other full time employment, whichever is earlier (the "Coverage
Period") in an amount equal to the cost which the Company would have incurred
for Xxxxxx'x medical and dental insurance had he been employed during the
Coverage Period. Xxxxxx agrees to fund (through periodic deductions from
Xxxxxx'x Severance payments ("Periodic Deductions") during the Coverage Period
and thereafter by check payable to the Company), the remainder of the cost of
the COBRA coverage during the Coverage Period, including the employee-paid
portion of the cost of the medical and dental coverage provided to the Company's
executives, and the differential between the cost of COBRA coverage and the cost
of the Company's medical and dental coverage for employees, as well as the
entire cost of the COBRA coverage after the Coverage Period. Xxxxxx acknowledges
that he has been advised that the Company's current policy for COBRA coverage
expires in October of 2002, and that COBRA premiums may increase thereafter.
Notwithstanding anything herein to the contrary, Xxxxxx may terminate future
Periodic Deductions by giving written notice (a "Termination Notice") to the
Company. The Company shall have no obligation or duty to provide, or to fund or
advance any cost of, any medical or dental insurance for Xxxxxx'x benefit
following receipt by the Company of a Termination Notice from Xxxxxx.
Exhibit E-1
1.3. Common Stock. Xxxxxx'x options to acquire Common Stock
shall continue to vest in accordance with the vesting schedules set forth in
Xxxxxx'x stock option agreements for a period of 12 months from the Separation
Date. Xxxxxx agrees that such options (including options that vest during the 12
month period following the Separation Date) must be exercised within 12 months
from the Separation Date or such options will terminate and will no longer be
exercisable.
1.4. Insurance Premium Reimbursements. The Parties
acknowledge that Xxxxxx owns New England Financial term insurance policy no.
28012713 (the "Term Policy") and New England Financial variable life insurance
policy no. Z236826 (the "Variable Policy") (collectively, the "Policies").
Following the Effective Date, Xxxxxx will retain ownership of the Policies.
Xxxxxx shall reimburse the Company for $260 (the "Premium Repayment") which the
Parties agree to be the prorated annual premium amount on the Term Policy from
the Separation Date to June 4, 2002, which the Company paid on Xxxxxx'x behalf
prior to the Separation Date. The Premium Repayment shall be funded by
deductions from the initial payments of Severance pursuant to Section 1.1.
Xxxxxx shall change the billing address on the Policies from the Company's
address. The Company agrees to cooperate fully with Xxxxxx in effecting such
change and any other notifications required (by the terms of the Policies) to be
made to the insurance companies concerning the ownership of the Policies. The
Company shall not be responsible for any further premiums due on the Policies.
Xxxxxx represents and warrants that all premiums paid on the Variable Policy
were paid by with his own funds through deductions from his salary from the
Company. Accordingly, the Company agrees that Xxxxxx shall remain the named
insured on the Policies, and, from and after the Effective Date, the Company
shall have no rights, claims, benefits or privileges thereunder.
1.5. Except as otherwise provided in Sections 1 and 2 of
this Separation Agreement, Xxxxxx releases and discharges the Company from any
obligation to provide any other or further salary payments, severance payments,
employee benefits, options or insurance, including any vacation or sick time
accrued, but not used. All payments pursuant to this Section 1 will be subject
to all withholding requirements for Social Security and all applicable taxes.
2. Expense Reimbursements. The Parties acknowledge that the
Company has paid directly to American Express all charges on Xxxxxx'x platinum
and gold American Express charge cards ("Charge Cards") for billing periods
ended on or before April 30, 2002 (the "Charges"). The Parties agree that Xxxxxx
will be solely responsible for paying all charges billed on Xxxxxx'x Charge
Cards for the May billing cycle (June xxxx) and all subsequent billing cycles.
Xxxxxx agrees to reimburse the Company for $18,733 of the Charges (the
"Reimbursement") which the Parties agree to be the total of the Charges which
are not reimbursable by the Company, less agreed deductions, including an agreed
amount equal to the final salary payment due to Xxxxxx as of the Separation
Date. Xxxxxx'x payment of the Reimbursement shall be funded by deductions from
the initial payments of Severance pursuant to Section 1.1 above. Xxxxxx shall
change the billing address on his Charge Cards from the Company's address.
Xxxxxx shall not submit any further expenses or charges for reimbursement by the
Company, and the Company shall have no obligation to reimburse Xxxxxx for any
further business or entertainment expenses. The Company agrees to assist Xxxxxx
in reconciling credits on the May 2002 billing cycle (June 2002 xxxx) with
American Express.
3. Future Employment. In response to an employment reference
request for Xxxxxx, the Company agrees that it will instruct its employees and
Directors that all inquiries
Exhibit E-2
must be directed to the chief accounting officer of the Company and will
instruct such chief accounting officer that only the following shall be
provided: name, date of hire, date of separation, titles and positions held,
number of direct reports, compensation as of date of separation and that the
Company has entered into a Settlement Agreement with Xxxxxx that precludes the
Company from providing further information. Notwithstanding anything contained
herein to the contrary, in connection with employment being sought by Xxxxxx, if
inquiries are made by a new or prospective employer regarding any of the matters
covered by this Separation Agreement or the Settlement Agreement, Xxxxxx shall
be entitled to respond to such inquiries by providing such prospective employers
with a copy of the Settlement Agreement and/or accurately and fully disclosing
the contents thereof.
4. Cooperation With the Company. Xxxxxx shall cooperate fully
with the Company in its defense of or other participation in any administrative,
judicial, or other proceeding arising from any charge, complaint or other action
which has been or may be filed that relate to Xxxxxx'x roles as an officer or
director of the Company. Xxxxxx shall also cooperate with any investigation
arising from any charge, complaint or other action which has been or may be
filed that relates to his service as President and/or Chief Executive Officer
and/or a director of the Company. The Company shall give Xxxxxx reasonable
advance written notice of any request for his cooperation and/or assistance. The
Company shall (a) pay Xxxxxx at the rate of $145 per hour for any time Xxxxxx
devotes to assisting the Company with any matter referred to in this Section 4,
but only to the extent such assistance is provided (i) more than twelve (12)
months after the Separation Date, or (ii) in excess of 120 hours within twelve
(12) months of the Separation Date; and (b) reimburse Xxxxxx for all reasonable
out-of-pocket costs and expenses that Xxxxxx incurs in providing such assistance
(including travel (at coach airfare rates) and lodging costs if he is required
to travel at the request of the Company).
5. Age Discrimination in Employment Act. XXXXXX ACKNOWLEDGES
THAT IN ACCORDANCE WITH THE OLDER WORKERS BENEFIT PROTECTION ACT OF 1990, XXXXXX
IS AWARE OF THE FOLLOWING WITH RESPECT TO HIS RELEASE OF ANY CLAIMS UNDER THE
AGE DISCRIMINATION IN EMPLOYMENT ACT ("ADEA"):
5.1. He has been advised he should consult and represents
that he has consulted with an attorney before signing this Separation Agreement;
5.2. He has the right to consider this Separation Agreement
for up to twenty-one (21) days; and
5.3. He has seven (7) days after signing this Separation
Agreement to revoke this Separation Agreement, and this Separation Agreement
will not be effective until the eighth (8th) day following the Execution Date.
6. Maintaining Confidential Information. Xxxxxx acknowledges
that all proprietary knowledge and information which Xxxxxx acquired in the
course of his employment with the Company relating to the Company's financial
status, personnel policies and procedures, business development activities,
services, products, advertising, prices, suppliers, supplier lists, customers,
customer lists, customer needs and requirements, marketing sources, product
designs, ideas, discoveries, creations, developments, improvements, computer
software, manufacturing and processes (hereinafter collectively referred to as
"Confidential Information") are the valuable
Exhibit E-3
property of the Company. This Confidential Information shall be deemed to
include information designated by the Company as "non-public."
6.1. Xxxxxx agrees not to disclose, divulge, or publish to
any person or entity, any of the Confidential Information. Xxxxxx further agrees
not to use any of the Confidential Information against the Company or any of its
employees, without the express prior written consent of the Company, or
otherwise take any action which is prejudicial in any manner to the interests of
the Company in preserving the Confidential Information. Xxxxxx agrees to return
any Confidential Information obtained, developed, or received by him during the
course of his employment with the Company (including, but not limited to, all
originals and copies of any tangible things which refer or relate to the
Company's financial status, operations, products, clients or marketing) within
ten (10) business days after the Effective Date. Xxxxxx acknowledges that
nothing in this Separation Agreement alters his obligations contained in a prior
written agreement, if any, with the Company relating to non-disclosure of
Confidential Information. To the extent that Xxxxxx has signed such an
agreement, Xxxxxx hereby specifically reaffirms all such obligations.
6.2. Xxxxxx represents that he shall return to the Company
within ten (10) business days after the Effective Date:
6.2.1. all copies of any business records or documents
of any kind belonging to, or related to, the Company which are or were subject
to his access, custody or control, regardless of the sources from which such
records were obtained. Additionally, Xxxxxx shall return likewise to the Company
all keys, security passes and other means of access to the Company's offices,
plants and other facilities.
6.2.2. any and all computer hardware, equipment and
software belonging to the Company, including any and all program and/or data
disks, manuals and all hard copies of Company information and data , and shall
disclose to the Company any and all passwords utilized by Xxxxxx with regard to
the Company's computer, hardware and software so that the Company has immediate,
full and complete access to all of the Company's data and information stored,
used and maintained by Xxxxxx, or to which Xxxxxx had access.
7. Nonsolicitation. For a period of 12 months from the
Effective Date, Xxxxxx shall not (i) solicit, encourage, or take any other
action which is intended to induce any other employee of the Company to
terminate his employment with the Company, or (ii) interfere in any manner with
the contractual or employment relationship between the Company and any such
employee of the Company.
8. Personal Effects. Within ten (10) business days from the
Effective Date, the Company shall return to Xxxxxx all of his personal effects
from his office at the Company.
9. D&O Insurance. The Parties acknowledge that Xxxxxx is an
"Officer" and/or "Executive Officer" as those terms are defined in the Company's
existing Directors and Officers Liability Policy (the "D&O Policy"). The D&O
Policy is a "claims made" policy. The Company believes that Xxxxxx is covered
under the terms and conditions of the Policy for both liability and
representation with respect to all claims asserted against or involving Xxxxxx
or the Company to the extent such claims are legally covered by such Policy, and
agrees to refrain from canceling the D&O Policy or changing the terms of the D&O
Policy in any manner that makes
Exhibit E-4
the coverage available to Xxxxxx less favorable than the coverage available to
the Company's other former officers and directors with respect to the same
period of service as an officer or director, as the case may be.
10. May 10th Letter. This Separation Agreement supercedes the
letter from the Company to Xxxxxx, dated May 10, 2002 regarding termination of
Xxxxxx'x employment.
11. Authority. Each person executing this Separation Agreement
represents that he or it has read and fully understands this Separation
Agreement and that he or it has the authority to execute this Separation
Agreement in his individual capacity or in the capacity identified on the
signature page below.
12. Governing Law. All disputes arising out of or relating to
this Separation Agreement, or the Parties' rights and obligations hereunder,
shall be interpreted in accordance with and governed by the substantive law of
the State of Delaware.
13. Severability. In the event that any one or more of the
provisions contained in this Separation Agreement shall, for any reason, be held
to be invalid, void, illegal or unenforceable in any respect, such invalidity,
voidness, illegality or unenforceability shall not affect any other provision of
this Agreement, and the remaining portions shall remain in full force.
14. Interpretation. Titles or captions herein are inserted as
a matter of convenience and for reference and in no way define, limit, extend,
or describe the scope of this Separation Agreement or any provision hereof. No
rule of construction disfavoring the drafting Party shall apply in the
interpretation of this Separation Agreement.
15. Entire Agreement. This Separation Agreement sets forth the
entire agreement between the Parties with respect to Xxxxxx'x separation and
supercedes any and all prior oral or written agreements or understanding between
the Parties concerning the subject matter. This Separation Agreement may not be
altered, amended, or modified, except by a further written document signed by
the Parties.
16. Party Cooperation. The Parties agree to cooperate fully
and to execute any and all supplementary documents and to take any and all
additional actions that may be necessary or appropriate to give full force to
the basic terms and intent of this Separation Agreement, including without
limitation full and complete dismissal with prejudice of any and all charges and
complaints filed against and Party.
17. Counterparts. This Separation Agreement may be executed in
one or more counterparts, each of which shall be deemed an original, but all of
which shall, together, constitute one and the same document. The Parties shall
not be required to execute the same counterpart(s) of this Separation Agreement
in order for this Separation Agreement to become effective. Delivery of an
executed counterpart of this Separation Agreement by telefacsimile shall be
equally as effective as delivery of a manually executed counterpart of this
Agreement. Any Party delivering an executed counterpart of this Separation
Agreement by telefacsimile shall also deliver a manually executed counterpart of
this Separation Agreement, but the failure to deliver a manually executed
counterpart shall not affect the validity, enforceability, or binding effect of
this Separation Agreement.
Exhibit E-5
18. Disputes. If a Party is required to arbitrate or seek
judicial enforcement of its or his rights under this Separation Agreement, the
substantially prevailing Party in such proceeding shall be entitled to be
reimbursed by the other Party for all of the first Party's reasonable attorneys'
fees and expenses.
Exhibit E-6
19. Effective Upon Occurrence of Effective Date. This
Separation Agreement is only effective upon the occurrence of the Effective
Date.
IN WITNESS WHEREOF, authorized representatives of the Parties,
and each of them, have executed this Separation Agreement on the dates indicated
below.
XXXXXX XXXXXX THE SPECTRANETICS CORPORATION
/s/ XXXXXX XXXXXX By: /s/ XXXXX XXXXXXXXXXXX
--------------------------------- --------------------------------
Xxxxxx Xxxxxx
DATED: June 6, 2002 DATED: June 6, 2002
Exhibit E-7
SEPARATION AGREEMENT
This Separation Agreement (the "Separation Agreement") is
entered into by and between The Spectranetics Corporation, a Delaware
corporation ("Spectranetics" or the "Company"), and Xxxx Xxxxx ("Xxxxx") (each a
"Party" and, collectively, the "Parties") with reference to that certain
Agreement of Compromise and Settlement dated as of June 6, 2002 (the "Settlement
Agreement"). This Separation Agreement shall only be effective upon the
occurrence of the Effective Date, as defined in the Settlement Agreement.
Capitalized terms not otherwise defined in this Separation Agreement shall have
the meanings set forth in the Settlement Agreement.
FOR AND IN CONSIDERATION of the mutual covenants contained
herein, the Parties, intending to be legally bound hereby, agree as follows:
1. Conditioned upon Xxxxx'x continuing performance of all of
his obligations under this Separation Agreement and the Settlement Agreement,
Xxxxx will receive the following benefits:
1.1. Severance. Xxxxx'x separation from the Company as of
May 10, 2002 (the "Separation Date") is hereby confirmed. Spectranetics will pay
Xxxxx severance equal to $183,000 (the "Severance"). The Severance shall be
payable in equal installments over the 12 months following the Separation Date
in accordance with the Company's normal payroll practices; provided, however,
(i) no payment will be made until after the Effective Date and (ii) the initial
payment after the Effective date will "catch" up for all payments otherwise due
Xxxxx from the Separation Date.
1.2. Medical and Dental Insurance. COBRA coverage shall be
provided for Xxxxx through the earlier of eighteen (18) months after the
Separation Date or the date on which Xxxxx commences other full time employment.
The Company shall pay a portion of the cost of such COBRA coverage for the first
twelve (12) months following the Separation Date, or the date Xxxxx commences
other full time employment, whichever is earlier (the "Coverage Period") in an
amount equal to the cost which the Company would have incurred for Xxxxx'x
medical and dental insurance had he been employed during the Coverage Period.
Xxxxx agrees to fund (through periodic deductions from Xxxxx'x Xxxxxxxxx
payments ("Periodic Deductions") during the Coverage Period and thereafter by
check payable to the Company), the remainder of the cost of the COBRA coverage
during the Coverage Period, including the employee-paid portion of the cost of
the medical and dental coverage provided to the Company's executives, and the
differential between the cost of COBRA coverage and the cost of the Company's
medical and dental coverage for employees, as well as the entire cost of the
COBRA coverage after the Coverage Period. Xxxxx acknowledges that he has been
advised that the Company's current policy for COBRA coverage expires in October
of 2002, and that COBRA premiums may increase thereafter. Notwithstanding
anything herein to the contrary, Xxxxx may terminate future Periodic Deductions
by giving written notice (a "Termination Notice") to the Company. The Company
shall have no obligation or duty to provide, or to fund or advance any cost of,
any medical or dental insurance for Xxxxx'x benefit following receipt by the
Company of a Termination Notice from Xxxxx.
Exhibit F-1
1.3. Common Stock. Xxxxx'x options to acquire Common Stock
shall continue to vest in accordance with the vesting schedules set forth in
Xxxxx'x stock option agreements for a period of 12 months from the Separation
Date. Xxxxx agrees that such options (including options that vest during the 12
month period following the Separation Date) must be exercised within 12 months
from the Separation Date or such options will terminate and will no longer be
exercisable.
1.4. Final Paycheck. Notwithstanding anything herein to the
contrary, the Company acknowledges and agrees that (a) Xxxxx shall be entitled
to retain and cash his final paycheck, dated May 10, 2002 (check number 6155) in
the net amount of $6,489.62 and (b) Company shall take no steps or actions to
stop payment on such check.
1.5. Except as otherwise provided in Section 1 of this
Separation Agreement, Xxxxx releases and discharges the Company from any
obligation to provide any other or further salary payments, severance payments,
employee benefits, options or insurance, including any vacation or sick time
accrued, but not used. All payments pursuant to this Section 1 will be subject
to all withholding requirements for Social Security and all applicable taxes.
2. Future Employment. In response to an employment reference
request for Xxxxx, the Company agrees that it will instruct its employees and
Directors that all inquiries must be directed to the chief accounting officer of
the Company and will instruct such chief accounting officer that only the
following shall be provided: name, date of hire, date of separation, titles and
positions held, number of direct reports, compensation as of date of separation
and that the Company has entered into a Settlement Agreement with Xxxxx that
precludes the Company from providing further information. Notwithstanding
anything contained herein to the contrary, in connection with employment being
sought by Xxxxx, if inquiries are made by a new or prospective employer
regarding any of the matters covered by this Separation Agreement or the
Settlement Agreement, Xxxxx shall be entitled to respond to such inquiries by
providing such prospective employers with a copy of the Settlement Agreement
and/or accurately and fully disclosing the contents thereof.
3. Cooperation With the Company. Xxxxx shall cooperate fully
with the Company in its defense of or other participation in any administrative,
judicial, or other proceeding arising from any charge, complaint or other action
which has been or may be filed that relate to Xxxxx'x roles as an officer or
director of the Company. Xxxxx shall also cooperate with any investigation
arising from any charge, complaint or other action which has been or may be
filed that relates to his service as Vice President of Finance and/or Chief
Financial Officer of the Company. The Company shall give Xxxxx reasonable
advance written notice of any request for his cooperation and/or assistance. The
Company shall (a) pay Xxxxx at the rate of $89 per hour for any time Xxxxx
devotes to assisting the Company with any matter referred to in this Section 3,
but only to the extent such assistance is provided (i) more than twelve (12)
months after the Separation Date, or (ii) in excess of 120 hours within twelve
(12) months of the Separation Date; and (b) reimburse Xxxxx for all reasonable
out-of-pocket costs and expenses that Xxxxx incurs in providing such assistance
(including travel (at coach airfare rates) and lodging costs if he is required
to travel at the request of the Company).
4. Age Discrimination in Employment Act. XXXXX ACKNOWLEDGES
THAT IN ACCORDANCE WITH THE OLDER WORKERS BENEFIT PROTECTION ACT OF 1990, XXXXX
IS AWARE OF THE FOLLOWING WITH RESPECT TO HIS RELEASE
Exhibit F-2
OF ANY CLAIMS UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT ("ADEA"):
4.1. He has been advised he should consult and represents
that he has consulted with an attorney before signing this Separation Agreement;
4.2. He has the right to consider this Separation Agreement
for up to twenty-one (21) days; and
4.3. He has seven (7) days after signing this Separation
Agreement to revoke this Separation Agreement, and this Separation Agreement
will not be effective until the eighth (8th) day following the Execution Date.
5. Maintaining Confidential Information. Xxxxx acknowledges
that all proprietary knowledge and information which Xxxxx acquired in the
course of his employment with the Company relating to the Company's financial
status, personnel policies and procedures, business development activities,
services, products, advertising, prices, suppliers, supplier lists, customers,
customer lists, customer needs and requirements, marketing sources, product
designs, ideas, discoveries, creations, developments, improvements, computer
software, manufacturing and processes (hereinafter collectively referred to as
"Confidential Information") are the valuable property of the Company. This
Confidential Information shall be deemed to include information designated by
the Company as "non-public."
5.1. Xxxxx agrees not to disclose, divulge, or publish to
any person or entity, any of the Confidential Information. Xxxxx further agrees
not to use any of the Confidential Information against the Company or any of its
employees, without the express prior written consent of the Company, or
otherwise take any action which is prejudicial in any manner to the interests of
the Company in preserving the Confidential Information. Xxxxx agrees to return
any Confidential Information obtained, developed, or received by him during the
course of his employment with the Company (including, but not limited to, all
originals and copies of any tangible things which refer or relate to the
Company's financial status, operations, products, clients or marketing) within
ten (10) business days after the Effective Date. Xxxxx acknowledges that nothing
in this Separation Agreement alters his obligations contained in a prior written
agreement, if any, with the Company relating to non-disclosure of Confidential
Information. To the extent that Xxxxx has signed such an agreement, Xxxxx hereby
specifically reaffirms all such obligations.
5.2. Xxxxx represents that he shall return to the Company
within ten (10) business days after the Effective Date:
5.2.1. all copies of any business records or documents
of any kind belonging to, or related to, the Company which are or were subject
to his access, custody or control, regardless of the sources from which such
records were obtained. Additionally, Xxxxx shall return likewise to the Company
all keys, security passes and other means of access to the Company's offices,
plants and other facilities.
5.2.2. any and all computer hardware, equipment and
software belonging to the Company, including any and all program and/or data
disks, manuals and all hard copies of Company information and data , and shall
disclose to the Company any and all
Exhibit F-3
passwords utilized by Xxxxx with regard to the Company's computer, hardware and
software so that the Company has immediate, full and complete access to all of
the Company's data and information stored, used and maintained by Xxxxx, or to
which Xxxxx had access.
6. Nonsolicitation. For a period of 12 months from the
Effective Date, Xxxxx shall not (i) solicit, encourage, or take any other action
which is intended to induce any other employee of the Company to terminate his
employment with the Company, or (ii) interfere in any manner with the
contractual or employment relationship between the Company and any such employee
of the Company.
7. Personal Effects. Within ten (10) business days from the
Effective Date, the Company shall return to Xxxxx all of his personal effects
from his office at the Company.
8. D&O Insurance. The Parties acknowledge that Xxxxx is an
"Officer" and/or "Executive Officer" as those terms are defined in the Company's
existing Directors and Officers Liability Policy (the "D&O Policy"). The D&O
Policy is a "claims made" policy. The Company believes that Xxxxx is covered
under the terms and conditions of the Policy for both liability and
representation with respect to all claims asserted against or involving Xxxxx or
the Company to the extent such claims are legally covered by such Policy, and
agrees to refrain from canceling the D&O Policy or changing the terms of the D&O
Policy in any manner that makes the coverage available to Xxxxx less favorable
than the coverage available to the Company's other former officers and directors
with respect to the same period of service as an officer or director, as the
case may be.
9. May 10th Letters. This Separation Agreement supercedes the
two letters from the Company to Xxxxx, both dated May 10, 2002 regarding
termination of Xxxxx'x employment and enclosing his final paycheck for all
amounts due from the Company to Xxxxx for services rendered through May 10,
2002.
10. Authority. Each person executing this Separation Agreement
represents that he or it has read and fully understands this Separation
Agreement and that he or it has the authority to execute this Separation
Agreement in his individual capacity or in the capacity identified on the
signature page below.
11. Governing Law. All disputes arising out of or relating to
this Separation Agreement, or the Parties' rights and obligations hereunder,
shall be interpreted in accordance with and governed by the substantive law of
the State of Delaware.
12. Severability. In the event that any one or more of the
provisions contained in this Separation Agreement shall, for any reason, be held
to be invalid, void, illegal or unenforceable in any respect, such invalidity,
voidness, illegality or unenforceability shall not affect any other provision of
this Agreement, and the remaining portions shall remain in full force.
13. Interpretation. Titles or captions herein are inserted as
a matter of convenience and for reference and in no way define, limit, extend,
or describe the scope of this Separation Agreement or any provision hereof. No
rule of construction disfavoring the drafting Party shall apply in the
interpretation of this Separation Agreement.
Exhibit F-4
14. Entire Agreement. This Separation Agreement sets forth the
entire agreement between the Parties with respect to Xxxxx'x separation and
supercedes any and all prior oral or written agreements or understanding between
the Parties concerning the subject matter. This Separation Agreement may not be
altered, amended, or modified, except by a further written document signed by
the Parties.
15. Party Cooperation. The Parties agree to cooperate fully
and to execute any and all supplementary documents and to take any and all
additional actions that may be necessary or appropriate to give full force to
the basic terms and intent of this Separation Agreement, including without
limitation full and complete dismissal with prejudice of any and all charges and
complaints filed against and Party.
16. Counterparts. This Separation Agreement may be executed in
one or more counterparts, each of which shall be deemed an original, but all of
which shall, together, constitute one and the same document. The Parties shall
not be required to execute the same counterpart(s) of this Separation Agreement
in order for this Separation Agreement to become effective. Delivery of an
executed counterpart of this Separation Agreement by telefacsimile shall be
equally as effective as delivery of a manually executed counterpart of this
Agreement. Any Party delivering an executed counterpart of this Separation
Agreement by telefacsimile shall also deliver a manually executed counterpart of
this Separation Agreement, but the failure to deliver a manually executed
counterpart shall not affect the validity, enforceability, or binding effect of
this Separation Agreement.
17. Disputes. If a Party is required to arbitrate or seek
judicial enforcement of its or his rights under this Separation Agreement, the
substantially prevailing Party in such proceeding shall be entitled to be
reimbursed by the other Party for all of the first Party's reasonable attorneys'
fees and expenses.
Exhibit F-5
18. Effective Upon Occurrence of Effective Date. This
Separation Agreement is only effective upon the occurrence of the Effective
Date.
IN WITNESS WHEREOF, authorized representatives of the Parties,
and each of them, have executed this Separation Agreement on the dates indicated
below.
XXXX XXXXX THE SPECTRANETICS CORPORATION
/s/ XXXX XXXXX By: /s/ XXXXX XXXXXXXXXXXX
--------------------------------- --------------------------------
Xxxx Xxxxx
DATED: June 6, 2002 DATED: June 6, 2002
Exhibit F-6
XXXXXX X. XXXXX
[HOME ADDRESS]
June 6, 0000
XXX XXXXXXXXX
Xxxxx Xxxxxxxxxxxx
Acting Chief Executive Officer
The Spectranetics Corporation
00 Xxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000-0000
RE: RESIGNATION FROM THE SPECTRANETICS CORPORATION ("SPECTRANETICS")
Xx. Xxxxxxxxxxxx:
Reference is hereby made to that certain Agreement of Compromise and
Settlement, by and among the Company and Xxxxx Xxxxxxxxxxxx, on the one hand,
and Xxxx Xxxxx, Xxxxx XxXxxxxx, Xxxxxx Xxxxx, Xxxxx Xxxxx and me, on the other
hand, dated as of June 6, 2002 (the "Settlement Agreement"). Capitalized terms
used herein have the meanings assigned to them in the Settlement Agreement.
I hereby resign my position as Vice President, Corporate Relations,
effective as of the Effective Date.
Sincerely,
/s/ XXXXXX X. XXXXX
Xxxxxx X. Xxxxx
cc: Xxxxx X. Mall, Esq.
Exhibit G-1
SEPARATION AGREEMENT
This Separation Agreement (the "Separation Agreement") is
entered into by and between The Spectranetics Corporation, a Delaware
corporation ("Spectranetics" or the "Company"), and Xxxxxx Xxxxx ("Sweet") (each
a "Party" and, collectively, the "Parties") with reference to that certain
Agreement of Compromise and Settlement dated as of June 6, 2002 (the "Settlement
Agreement"). This Separation Agreement shall only be effective upon the
occurrence of the Effective Date, as defined in the Settlement Agreement.
Capitalized terms not otherwise defined in this Separation Agreement shall have
the meanings set forth in the Settlement Agreement.
FOR AND IN CONSIDERATION of the mutual covenants contained
herein, the Parties, intending to be legally bound hereby, agree as follows:
1. Conditioned upon Sweet's continuing performance of
all of her obligations under this Separation Agreement and the Settlement
Agreement, Sweet will receive the following benefits:
1.1. Severance. Sweet's separation from the Company as of
the Execution Date is hereby confirmed. The Parties agree that Spectranetics
will pay Sweet her salary in accordance with the Company's normal payroll
practices through the Effective Date. Following the Effective Date,
Spectranetics will pay Sweet severance equal to $57,440 (the "Severance"). The
Severance shall be payable in equal installments over the six (6) months
following the Effective Date in accordance with the Company's normal payroll
practices.
1.2. Medical and Dental Insurance. COBRA coverage shall be
provided for Sweet through the earlier of eighteen (18) months after the
Effective Date or the date on which Sweet commences other full time employment.
The Company shall pay a portion of the cost of such COBRA coverage for the first
six (6) months following the Effective Date, or the date Sweet commences other
full time employment, whichever is earlier (the "Coverage Period") in an amount
equal to the cost which the Company would have incurred for Sweet's medical and
dental insurance had she been employed during the Coverage Period. Sweet agrees
to fund (through periodic deductions from Sweet's Severance payments ("Periodic
Deductions") during the Coverage Period and thereafter by check payable to the
Company), the remainder of the cost of the COBRA coverage during the Coverage
Period, including the employee-paid portion of the cost of the medical and
dental coverage provided to the Company's executives, and the differential
between the cost of COBRA coverage and the cost of the Company's medical and
dental coverage for employees, as well as the entire cost of the COBRA coverage
after the Coverage Period. Sweet acknowledges that she has been advised that the
Company's current policy for COBRA coverage expires in October of 2002, and that
COBRA premiums may increase thereafter. Notwithstanding anything herein to the
contrary, Sweet may terminate future Periodic Deductions by giving written
notice (a "Termination Notice") to the Company. The Company shall have no
obligation or duty to provide, or to fund or advance any cost of, any medical or
dental insurance for Sweet's benefit following receipt by the Company of a
Termination Notice from Sweet.
1.3. Common Stock. Sweet's options to acquire Common Stock
shall continue to vest in accordance with the vesting schedules set forth in
Sweet's stock option
Exhibit H-1
agreements for a period of 6 months from the Effective Date. Sweet agrees that
such options (including options that vest during the 6 month period following
the Effective Date) must be exercised within 12 months from the Effective Date
or such options will terminate and will no longer be exercisable.
1.4. Except as otherwise provided in Section 1 of this
Separation Agreement, Sweet releases and discharges the Company from any
obligation to provide any other or further salary payments, severance payments,
employee benefits, options or insurance, including any vacation or sick time
accrued, but not used. All payments pursuant to this Section 1 will be subject
to all withholding requirements for Social Security and all applicable taxes.
2. Future Employment. In response to an employment reference
request for Sweet, the Company agrees that it will instruct its employees and
Directors that all inquiries must be directed to the chief accounting officer of
the Company and will instruct such chief accounting officer that only the
following shall be provided: name, date of hire, date of separation, titles and
positions held, number of direct reports, compensation as of date of separation
and that the Company has entered into a Settlement Agreement with Sweet that
precludes the Company from providing further information. Notwithstanding
anything contained herein to the contrary, in connection with employment being
sought by Sweet, if inquiries are made by a new or prospective employer
regarding any of the matters covered by this Separation Agreement or the
Settlement Agreement, Sweet shall be entitled to respond to such inquiries by
providing such prospective employers with a copy of the Settlement Agreement
and/or accurately and fully disclosing the contents thereof.
3. Cooperation With the Company. Sweet shall cooperate fully
with the Company in its defense of or other participation in any administrative,
judicial, or other proceeding arising from any charge, complaint or other action
which has been or may be filed that relate to Sweet's roles as an officer or
director of the Company. Sweet shall also cooperate with any investigation
arising from any charge, complaint or other action which has been or may be
filed that relates to her service as Vice President of Corporate Relations of
the Company. The Company shall give Sweet reasonable advance written notice of
any request for her cooperation and/or assistance. The Company shall (a) pay
Sweet at the rate of $100 per hour for any time Sweet devotes to assisting the
Company with any matter referred to in this Section 3, but only to the extent
such assistance is provided (i) more than six (6) months after the Effective
Date, or (ii) in excess of 60 hours within six (6) months of the Effective Date;
and (b) reimburse Sweet for all reasonable out-of-pocket costs and expenses that
Sweet incurs in providing such assistance (including travel (at coach airfare
rates) and lodging costs if she is required to travel at the request of the
Company).
4. Age Discrimination in Employment Act. SWEET ACKNOWLEDGES
THAT IN ACCORDANCE WITH THE OLDER WORKERS BENEFIT PROTECTION ACT OF 1990, SWEET
IS AWARE OF THE FOLLOWING WITH RESPECT TO HER RELEASE OF ANY CLAIMS UNDER THE
AGE DISCRIMINATION IN EMPLOYMENT ACT ("ADEA"):
4.1. She has been advised she should consult and represents
that she has consulted with an attorney before signing this Separation
Agreement;
Exhibit H-2
4.2. She has the right to consider this Separation
Agreement for up to twenty-one (21) days; and
4.3. She has seven (7) days after signing this Separation
Agreement to revoke this Separation Agreement, and this Separation Agreement
will not be effective until the eighth (8th) day following the Execution Date.
5. Maintaining Confidential Information. Sweet acknowledges
that all proprietary knowledge and information which Sweet acquired in the
course of her employment with the Company relating to the Company's financial
status, personnel policies and procedures, business development activities,
services, products, advertising, prices, suppliers, supplier lists, customers,
customer lists, customer needs and requirements, marketing sources, product
designs, ideas, discoveries, creations, developments, improvements, computer
software, manufacturing and processes (hereinafter collectively referred to as
"Confidential Information") are the valuable property of the Company. This
Confidential Information shall be deemed to include information designated by
the Company as "non-public."
5.1. Sweet agrees not to disclose, divulge, or publish to
any person or entity, any of the Confidential Information. Sweet further agrees
not to use any of the Confidential Information against the Company or any of its
employees, without the express prior written consent of the Company, or
otherwise take any action which is prejudicial in any manner to the interests of
the Company in preserving the Confidential Information. Sweet agrees to return
any Confidential Information obtained, developed, or received by her during the
course of her employment with the Company (including, but not limited to, all
originals and copies of any tangible things which refer or relate to the
Company's financial status, operations, products, clients or marketing) within
ten (10) business days after the Effective Date. Sweet acknowledges that nothing
in this Separation Agreement alters her obligations contained in a prior written
agreement, if any, with the Company relating to non-disclosure of Confidential
Information. To the extent that Sweet has signed such an agreement, Sweet hereby
specifically reaffirms all such obligations.
5.2. Sweet represents that she shall return to the Company
within ten (10) business days after the Effective Date:
5.2.1. all copies of any business records or documents
of any kind belonging to, or related to, the Company which are or were subject
to her access, custody or control, regardless of the sources from which such
records were obtained. Additionally, Sweet shall return likewise to the Company
all keys, security passes and other means of access to the Company's offices,
plants and other facilities.
5.2.2. any and all computer hardware, equipment and
software belonging to the Company, including any and all program and/or data
disks, manuals and all hard copies of Company information and data , and shall
disclose to the Company any and all passwords utilized by Sweet with regard to
the Company's computer, hardware and software so that the Company has immediate,
full and complete access to all of the Company's data and information stored,
used and maintained by Sweet, or to which Sweet had access.
6. Nonsolicitation. For a period of 12 months from the
Effective Date, Sweet shall not (i) solicit, encourage, or take any other action
which is intended to induce any other
Exhibit H-3
employee of the Company to terminate her employment with the Company, or (ii)
interfere in any manner with the contractual or employment relationship between
the Company and any such employee of the Company.
7. Personal Effects. Within ten (10) business days from the
Effective Date, the Company shall return to Sweet all of her personal effects
from her office at the Company. The Company shall permit Sweet to make
arrangements within ten (10) business days after the Effective Date to enter her
office at the Company, at a time and date on the weekend or after hours mutually
acceptable by the Parties, to retrieve her personal effects. Sweet, or her
designated representative, shall be accompanied by a representative of the
Company's choice.
8. D&O Insurance. The Parties acknowledge that Sweet is an
"Officer" and/or "Executive Officer" as those terms are defined in the Company's
existing Directors and Officers Liability Policy (the "D&O Policy"). The D&O
Policy is a "claims made" policy. The Company believes that Sweet is covered
under the terms and conditions of the Policy for both liability and
representation with respect to all claims asserted against or involving Sweet or
the Company to the extent such claims are legally covered by such Policy, and
agrees to refrain from canceling the D&O Policy or changing the terms of the D&O
Policy in any manner that makes the coverage available to Sweet less favorable
than the coverage available to the Company's other former officers and directors
with respect to the same period of service as an officer or director, as the
case may be.
9. Authority. Each person executing this Separation Agreement
represents that she or it has read and fully understands this Separation
Agreement and that she or it has the authority to execute this Separation
Agreement in her individual capacity or in the capacity identified on the
signature page below.
10. Governing Law. All disputes arising out of or relating to
this Separation Agreement, or the Parties' rights and obligations hereunder,
shall be interpreted in accordance with and governed by the substantive law of
the State of Delaware.
11. Severability. In the event that any one or more of the
provisions contained in this Separation Agreement shall, for any reason, be held
to be invalid, void, illegal or unenforceable in any respect, such invalidity,
voidness, illegality or unenforceability shall not affect any other provision of
this Agreement, and the remaining portions shall remain in full force.
12. Interpretation. Titles or captions herein are inserted as
a matter of convenience and for reference and in no way define, limit, extend,
or describe the scope of this Separation Agreement or any provision hereof. No
rule of construction disfavoring the drafting Party shall apply in the
interpretation of this Separation Agreement.
13. Entire Agreement. This Separation Agreement sets forth the
entire agreement between the Parties with respect to Sweet's separation and
supercedes any and all prior oral or written agreements or understanding between
the Parties concerning the subject matter. This Separation Agreement may not be
altered, amended, or modified, except by a further written document signed by
the Parties.
Exhibit H-4
14. Party Cooperation. The Parties agree to cooperate fully
and to execute any and all supplementary documents and to take any and all
additional actions that may be necessary or appropriate to give full force to
the basic terms and intent of this Separation Agreement, including without
limitation full and complete dismissal with prejudice of any and all charges and
complaints filed against and Party.
15. Counterparts. This Separation Agreement may be executed in
one or more counterparts, each of which shall be deemed an original, but all of
which shall, together, constitute one and the same document. The Parties shall
not be required to execute the same counterpart(s) of this Separation Agreement
in order for this Separation Agreement to become effective. Delivery of an
executed counterpart of this Separation Agreement by telefacsimile shall be
equally as effective as delivery of a manually executed counterpart of this
Agreement. Any Party delivering an executed counterpart of this Separation
Agreement by telefacsimile shall also deliver a manually executed counterpart of
this Separation Agreement, but the failure to deliver a manually executed
counterpart shall not affect the validity, enforceability, or binding effect of
this Separation Agreement.
16. Disputes. If a Party is required to arbitrate or seek
judicial enforcement of its or her rights under this Separation Agreement, the
substantially prevailing Party in such proceeding shall be entitled to be
reimbursed by the other Party for all of the first Party's reasonable attorneys'
fees and expenses.
Exhibit H-5
17. Effective Upon Occurrence of Effective Date. This
Separation Agreement is only effective upon the occurrence of the Effective
Date.
IN WITNESS WHEREOF, authorized representatives of the Parties,
and each of them, have executed this Separation Agreement on the dates indicated
below.
XXXXXX XXXXX THE SPECTRANETICS CORPORATION
/s/ XXXXXX XXXXX By: /s/ XXXXX XXXXXXXXXXXX
--------------------------------- --------------------------------
Xxxxxx Xxxxx
DATED: June 6, 2002 DATED: June 6, 0000
Xxxxxxx X-0
XX XXX XXXXXX XXXXXX DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
----------------------------------------
THE SPECTRANETICS CORPORATION,
a Delaware corporation,
Plaintiff,
v.
XXXXXX X. XXXXXX, an individual; XXXX Civil Action No. 02-452-SLR
X. XXXXX, an individual, XXXXXX
XXXXX, an individual; XXXXXXXX
XXXXXXXX, an individual; XXXXXX
XXXXX, an individual; and DOES 1
THROUGH 15 INCLUSIVE,
Defendants.
----------------------------------------
NOTICE OF VOLUNTARY DISMISSAL
Pursuant to Fed. R. Civ. Pro. 41(a)(1), plaintiff The
Spectranetics Corporation, by its undersigned attorneys, hereby dismisses the
above-captioned action with prejudice.
Of Counsel:
-----------------------------------
Xxxxxxxxxxx X. Xxxxxxx Xxxxx X. Xxxxxx
Xxxxxx & Xxxxxxx Xxxxx X. Xxxxx
000 Xxxxxxxxxxxx Xxxxx Xxxxx X. Xxxxx
Xxxxx Xxxx, XX 00000 Xxxxxxxx, Xxxxxx & Finger P.A.
(000) 000-0000 One Xxxxxx Square
X.X. Xxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
(000) 000-0000
Attorneys for Plaintiff
Dated: June __, 2002
Exhibit I-1
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
)
THE SPECTRANETICS CORPORATION, )
and XXXXX X. XXXXXXXXXXXX, )
)
Plaintiffs, )
)
v. ) Civil Action No. 02-452-SLR
)
XXXXXX X. XXXXXX, and XXXX X. )
XXXXX, )
)
Defendants. )
)
NOTICE OF VOLUNTARY DISMISSAL
Pursuant to Chancery Court Rule 41(a)(1), plaintiffs The
Spectranetics Corporation and Xxxxx X. Xxxxxxxxxxxx, by their undersigned
attorneys, hereby dismiss the above-captioned action with prejudice.
Of Counsel:
-----------------------------------
Xxxxxxxxxxx X. Xxxxxxx Xxxxx X. Xxxxxx
Xxxxxx & Xxxxxxx Xxxxx X. Xxxxx
000 Xxxxxxxxxxxx Xxxxx Xxxxx X. Xxxxx
Xxxxx Xxxx, XX 00000 Xxxxxxxx, Xxxxxx & Finger P.A.
(000) 000-0000 One Xxxxxx Square
X.X. Xxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
(000) 000-0000
Attorneys for Plaintiff
Dated: June __, 2002
Exhibit J-1
