SEPARATION AGREEMENT AND RELEASE OF CLAIMS
Exhibit 10.2
SEPARATION AGREEMENT AND RELEASE OF CLAIMS
This Separation Agreement and Release of Claims (this “Agreement”) is made by and between
me, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, and ev3 Endovascular, Inc. (“ev3” or the “Company”). The
Company and I have agreed to separate according to the terms set forth in this Agreement. I do not
believe that I have any claims against the Company, but I nevertheless have agreed to resolve any
actual and potential claims arising out of my employment with and separation from the Company by
entering into this Agreement.
IN CONSIDERATION OF THIS ENTIRE SEPARATION AGREEMENT AND RELEASE OF CLAIMS, I AGREE AS FOLLOWS:
Definitions. I intend all words used in this Agreement to have their plain meanings in
ordinary English. Specific terms that I use in this Agreement have the following meanings:
| A. | I, me, and my include both me and anyone who has or obtains any legal rights or claims through me. | ||
| B. | ev3 or the Company means ev3 Endovascular, Inc., formerly known as ev3 Inc., any past or present company related to ev3 Endovascular, Inc. and their predecessors, successors, parents, subsidiaries, affiliates, joint venture partners, and divisions; their present and past officers, directors, committees, shareholders, and employees, whether in their individual or official capacities; any company providing insurance to them, in the present or past; present and past fiduciaries of any employee benefit plan sponsored or maintained by them (other than multiemployer plans); their attorneys; and anyone who acted on their behalf or on instructions from them. | ||
| C. | Termination Date means the date on which my employment with the Company ends, as set forth in Exhibit 1 to this Agreement (Notice of Scheduled Termination Date and Statement of Special Consideration). | ||
| D. | My Claims means all of my rights that I now have to any relief of any kind from the Company, including without limitation: |
| 1. | All claims arising out of or relating to my employment with the Company or the termination of that employment; | ||
| 2. | All claims arising out of or relating to the statements, actions, or omissions of the Company; | ||
| 3. | All claims for any alleged unlawful discrimination, harassment, retaliation or reprisal, or other alleged unlawful practices arising under any federal, state, or local statute, ordinance, rule or regulation, including without limitation, claims under Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act (the ADEA), the Older Workers Benefit Protection Act of 1990 (the OWBPA), the Americans |
| with Disabilities Act, 42 U.S.C. § 1981 (the ADA), the Employee Retirement Income Security Act (ERISA), the Equal Pay Act (the EPA), the Worker Adjustment Retraining and Notification Act (WARN), the Family and Medical Leave Act (FMLA), the Minnesota Human Rights Act (MHRA), the California Labor Code § 1401, the California Fair Employment and Housing Act, Cal Gov’t Code § 12900 et seq., any workers’ compensation non-interference or non-retaliation statutes, and any other state or local anti-discrimination, anti-retaliation, and fair employment practices laws, ordinances, rules and regulations; | |||
| 4. | All claims for alleged: wrongful discharge; breach of contract (including, but not limited to, claims for breach of any written or verbal employment agreement); breach of implied contract; failure to keep any promise; breach of an express or implied covenant of good faith and fair dealing; breach of fiduciary duty; estoppel; whistleblower or other illegal retaliation or reprisal; defamation; infliction of emotional distress; fraud; misrepresentation; negligence; harassment; constructive discharge; assault; battery; false imprisonment; invasion of privacy; interference with contractual or business relationships; any other wrongful employment practices; and a violation of any other principle of common law; | ||
| 5. | All claims for compensation of any kind (except those expressly provided in or excepted from this Agreement), including without limitation, salary, bonuses, commissions, expense reimbursements, stock-based compensation or stock options, used or accrued vacation pay, personal time pay, personal time reservoir, sick pay, severance payments under any past, pending or future severance pay plans, short and/or long term disability benefits, life insurance benefits, accidental death and disability insurance benefits, dental, medical and vision benefits, retirement savings or 401(k) or 403(b) contributions, and payments for any other type of benefit, leave of absence or time off of work; | ||
| 6. | All claims for back pay, front pay, reinstatement, injunctions or other equitable relief, compensatory damages, damages for alleged personal injury, liquidated damages, and punitive damages; and | ||
| 7. | All claims for attorneys’ fees, disbursements, costs, and interest. |
| However, the term My Claims does not include any claims that the law does not allow to be waived or any claims that may arise after the date on which I sign this Agreement, including my right to claim the following: unemployment insurance benefits; workers’ compensation benefits related to any injury I have sustained in the course of my duties for the Company to the extent that such benefits are awarded by a state agency or agreed upon consistent with applicable state law; vested post-termination benefits under any 401(k) or similar retirement benefit plan sponsored by the Company in which I am currently a participant; vested |
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| post-termination benefits to which I am entitled under any stock option plan; continuation of health insurance pursuant to COBRA or similar state law; my rights to assert claims that are based on events occurring after this Agreement becomes effective; my rights, if any, under the Uniformed Services Employment and Reemployment Rights Act (USERRA) 38 U.S.C. § 4301, et seq.; and or my rights to enforce the terms of this Agreement or that certain Consulting Agreement which I am executing contemporaneous with this Agreement. | |||
| E. | Special Consideration means the severance pay and other benefits to which I am entitled under the Severance Pay Plan in effect on my Termination Date, as described more fully in Exhibit 1 to this Agreement. | ||
| The term Special Consideration does not include the following amounts which will be paid to me regardless of whether I sign this Agreement: |
| 1. | My base salary for the time I worked through the end of business on the Termination Date; | ||
| 2. | Any accrued but unused PTO to which I am entitled; | ||
| 3. | Any unpaid business expenses incurred by me through the Termination Date in the course of and pursuant to the Company’s expense reimbursement policies and procedures; and | ||
| 4. | Compensation to which I may be entitled pursuant to that certain Consulting Agreement which I am executing contemporaneous with this Agreement. |
Agreement to Release My Claims. In exchange for the Special Consideration to be paid by
the Company and other undertakings of the Company stated in this Agreement, I agree to give up and
release all of My Claims against the Company as defined above. I understand and acknowledge that
the Special Consideration is of significant value to me and that I am not entitled to the Special
Consideration described above unless I sign, and do not revoke, this Agreement. In exchange for
this Special Consideration, I give up all of My Claims against the Company. This means that except
as provided below, I will not bring any lawsuits against the Company or make any demands against
the Company for compensation or damages relating to My Claims. For the purpose of implementing a
full and complete release and discharge of all claims, this Agreement is intended to include,
without limitation, all claims which I may have against the Company but do not know or suspect to
exist in my favor at the time of execution of this Agreement which, if known or suspected, would
materially affect my decision to execute the Agreement.
In exchange for my agreement to release My Claims, I am receiving satisfactory consideration (i.e.
monetary and other compensation) from the Company to which I am not otherwise entitled by law,
contract, or under any Company policy. The Special Consideration I am receiving is a full and fair
payment for the release of all My Claims.
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The Company has made no representations or warranties to me regarding the tax treatment of the
payments provided under this Agreement. I understand that I am solely responsible for all federal,
state, and local income and any other taxes that may be due on account of these payments.
The Company has advised me that it intends that the benefits provided under this Agreement be
exempt from the requirements of Section 409A of the Code by reason of the separation pay exception
under Treas. Reg. Sec. 1.409A-1(b)(9), and that the short term deferral exception under Treas. Reg.
Sec. 1-409A-1(b)(4) and this Agreement will be construed and administered in a manner that is
consistent with and gives effect to such intention. I understand and agree that with respect to
payments under this Agreement, for purposes of Section 409A, each severance payment will be
considered one of a series of separate payments.
Compliance with Prior Agreements. I understand that I remain bound by the terms of any
prior agreement which I previously entered into with the Company, including without limitation any
agreement relating to: (1) confidential, proprietary or trade secret information of the Company and
its affiliates; (2) assignment, disclosure or cooperation with respect to inventions, know-how,
creations or other intellectual property; (3) non-competition with the Company; (4)
non-solicitation of Company employees, agents, customers or prospective customers; or (5) any
similar obligations, all of which do and will continue in full force and effect.
No Right to Reemployment. I understand and agree that my employment with the Company is
terminated effective as of the Termination Date and I have no express or implied right or
entitlement to reinstatement or reemployment with the Company following my Termination Date. I
agree that the Company may use this Agreement as the sole reason to reject any inquiry or
application for employment I may make.
Agreement to Cooperate in Transition; Return of Property. In exchange for the Special
Consideration to be paid by the Company and other undertakings of the Company stated in this
Agreement, I also agree to cooperate with the Company in its transition efforts as follows: (1) I
agree to be available, on a reasonable basis, to answer questions that may arise relating to my
employment with or duties to the Company; (2) I shall return, on or before my Termination Date, and
will not retain in any form or format, all Company documents, data, trunk stock, and other property
in my possession or control; (3) after returning these documents, data, and other property, I will
permanently delete from any electronic media in my possession, custody, or control (such as
computers, cell phones, hand-held devices, back-up devices, zip drives, PDAs, etc.) or to which I
have or have had access (such as remote e-mail exchange servers, back-up servers, off-site storage,
etc.), all documents or electronically stored images of the Company, including writings, drawings,
graphs, charts, sound recordings, images, and other data or data compilations stored in any medium
from which such information can be obtained; and (4) I agree to provide the Company a list of any
documents that I created or am otherwise aware that are password-protected and the password(s)
necessary to access such password-protected documents.
For purposes of this Agreement, Company “documents, data, and other property” includes, without
limitation, computers, fax machines, cell phones, access cards, keys, reports, manuals, records,
product samples, trunk stock, correspondence and/or other documents or materials
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related to the business of the Company or its affiliates that I have compiled, generated or
received while working for the Company, including all copies, samples, computer data, disks, or
records of such material.
I understand and agree that the Company’s obligations under this Agreement, including without
limitation, its payment of Special Consideration to me, are contingent upon me returning all
Company documents, data, trunk stock, and other property and cooperating with the Company as set
forth above.
Any time that I spend performing my obligations under this paragraph will be credited as Consulting
Services as defined by and covered by the Consulting Agreement that I am entering with the Company
concurrently with this Agreement.
Agreement to Cooperate in Investigations and Litigation. I agree that I will, at any
future time, be available upon reasonable notice from the Company, with or without a subpoena, to
be interviewed, review documents or things, give depositions, testify, or engage in other
reasonable activities, with respect to matters and/or disputes concerning which I have or may have
knowledge as a result of or in connection with my employment by the Company. In performing my
obligations under this paragraph to testify or otherwise provide information, I will honestly,
truthfully, forthrightly, and completely provide the information requested. I will comply with
this Agreement upon notice from the Company that the Company or its attorneys believe that my
compliance will assist in the resolution of an investigation or the prosecution or defense of
claims. Any time that I spend performing my obligations under this paragraph will be credited as
Consulting Services as defined by and covered by the Consulting Agreement that I am entering with
the Company concurrently with this Agreement.
Waiver of Rights to Additional Recovery. By signing this Agreement, I waive any right I
may have to any form of recovery or compensation from any legal, administrative or other charge,
claim, complaint, or action which has been, is, or may be filed by me or on my behalf based on my
employment with, or termination of employment from, the Company. I warrant, except as provided in
the following paragraph, that I have not filed, otherwise commenced, or caused to be filed or
otherwise commenced, any claims, complaints, or actions against the Employer before any federal,
state, or local administrative agency or court, other than the U.S. Equal Employment Opportunity
Commission (“EEOC”) or any other state or local fair employment or civil rights enforcement
agency.
Exception. I understand that this Agreement permits but does not in any way require me to
refrain from filing, to request dismissal or to request withdrawal of any charges,
grievances, petitions, or complaints that I may have against the Company before the EEOC or
other fair employment or civil rights enforcement agency. I may take or attempt to take any
such action if I so choose.
The Company warrants that, as of the Termination Date, it does not have any knowledge of any claims
against me.
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A. Nothing in this Agreement interferes with my right to file a charge with the EEOC, or
participate in any manner in an EEOC investigation or proceeding under Title VII, the ADA,
the ADEA, or the EPA. I, however, understand that I am waiving my right to recover
individual relief including, but not limited to, back pay, front pay, reinstatement,
compensatory damages, attorneys’ fees, and/or punitive damages, in any administrative or
legal action whether brought by the EEOC, me, or any other party.
B. Nothing in this Agreement interferes with my right to challenge whether I knowingly and
voluntarily agreed to waive my rights under the ADEA as provided for in the OWBPA.
C. I agree that the Company reserves any and all defenses, which it has or might have
against any claims brought by me. This includes, but is not limited to, the Company’s right
to seek available costs and attorneys’ fees, and to have any monetary award granted to me,
if any, reduced by the amount of money that I received in consideration for this Agreement.
D. Nothing in this Agreement interferes with my rights to indemnification that I may have
pursuant to the Certificate of Incorporation or By-laws of the Company or any
indemnification agreement between me and the Company.
Advice to Consult with an Attorney. I understand and acknowledge that I hereby am being
advised by the Company to consult with an attorney prior to signing this Agreement. My decision
whether to sign this Agreement is my own voluntary decision made with full knowledge that the
Company has advised me to consult with an attorney. The Company will not advance or reimburse any
attorneys fees, costs, or expenses incurred by me in connection with any such review.
Rights and Procedure for Accepting or Revoking this Agreement. I have been advised that
this Agreement shall be executed by me no earlier than my Termination Date and no later than
twenty-one (21) days after my Termination Date. I understand that insofar as this Agreement
relates to my rights, if any, under the ADEA, it shall not become effective or enforceable until
seven (7) days after I sign it. I further understand that insofar as this Agreement relates to my
rights, if any, under the Minnesota Human Rights Act (MHRA), it shall not become effective or
enforceable until fifteen (15) days after I sign it. I understand that I have the right to revoke
the release in this Agreement, insofar as it extends to my claims, if any, under the ADEA, by
written notice of such to the Company within seven (7) calendar days following my signing this
Agreement. I understand that I have the right to rescind the release in this Agreement insofar as
it extends to my claims, if any, under the MHRA, by written notice to the Company within fifteen
(15) calendar days of my signing this Agreement. Any such revocation or rescission must be in
writing and hand-delivered to ev3’s Senior Vice President, Human Resources, Mr. ▇▇▇▇ ▇▇▇▇▇▇▇▇, or,
if sent by mail:
| A. | post-marked within the seven (7) or fifteen (15) day revocation or rescission period; | ||
| B. | properly addressed to Mr. ▇▇▇▇ ▇▇▇▇▇▇▇▇, Senior Vice President, Human |
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| Resources, ev3 Endovascular, Inc., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; and | |||
| C. | sent by certified mail, return receipt requested. |
I understand that the Special Consideration I am receiving for settling and releasing My Claims is
contingent upon my agreement to be bound by the terms of this Agreement. Accordingly, if I decide
to revoke or rescind this Agreement, I understand that I am not entitled to the Special
Consideration offered in this Agreement. I further understand that if I attempt to revoke my
release of ADEA claims or rescind my release of MHRA claims, I must immediately return to the
Company any Special Consideration I have received under this Agreement.
No Admission of Wrongdoing. Even though the Company will provide the Special Consideration
for me to settle and release My Claims, the Company does not admit that it is responsible or
legally obligated to me. In fact, the Company denies that it is responsible or legally obligated
to me for My Claims, denies that it engaged in any unlawful or improper conduct toward me, and
denies that it treated me unfairly.
Successors and Assigns. I agree that the promises in this Agreement benefit the Company
and also any successor or assignee of the Company’s business or operations. The Company agrees
that its promises in this Agreement shall be binding on any successor or assignee of its business
or operations. I warrant and represent that I have not assigned or transferred in any manner, or
purported to assign or transfer in any manner, to any person or entity, any claim or interest that
is the subject of this Agreement.
Entire Agreement/Merger; Other Written Agreements. Subject to my agreement, as set forth
above, to abide by other agreements with the Company, and that certain Consulting Agreement that I
have executed contemporaneously with this Agreement, this is the entire Agreement between me and
the Company relating to my employment and my termination from employment. Except as expressly
provided otherwise in this Agreement, this Agreement supersedes all prior oral and written
agreements and communications between the parties. This Agreement shall not be modified, amended,
or terminated except by a written agreement manually signed by both parties.
Confidentiality. I acknowledge my current obligations to the Company pertaining to trade
secrets and confidentiality of information and property, and agree that those obligations shall
continue to apply following the execution of this Agreement.
Interpretation of the Agreement. This Agreement should be interpreted as broadly as
possible to achieve my intention to resolve all of My Claims against the Company. If this
Agreement is held by a court to be inadequate to release a particular claim encompassed within My
Claims, this Agreement will remain in full force and effect with respect to all the rest of My
Claims. In case any one or more of the provisions of this Agreement shall be held invalid, illegal
or unenforceable in any respect, the validity, legality and enforceability of the remaining
provisions will not in any way be affected or impaired.
Governing Law and Venue. I understand and that ev3’s principal place of business is
Plymouth, Minnesota, and accordingly, I agree that this Agreement shall be governed by, and
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construed and enforced in accordance with Minnesota law, without reference to choice of law, except
to the extent it is pre-empted by federal law. I agree that any dispute relating to this Agreement
must be brought in state or federal courts within the State of Minnesota, Hennepin County.
Remedies. In the event that I breach my obligations under this Agreement or the Company
learns that my representations and warranties contained in this Agreement are false, the Company
shall have the right to bring a legal action for appropriate equitable relief as well as damages,
including reasonable attorneys’ fees, and shall also have to right to suspend payment of the
Special Consideration set forth in this Agreement and/or to recover, in addition to any equitable
relief and damages allowed by law, the Special Consideration I have received under this Agreement.
Change in Control Agreement. For the avoidance of doubt, I acknowledge and agree that the
Change in Control Agreement, dated April 3, 2006, by and among ev3 Inc., Micro Therapeutics, Inc.
and me will terminate on the Termination Date in accordance with Section 2 of such Change in
Control Agreement, and effective on that Termination Date, I will no longer have the right to any
benefits under that Change in Control Agreement.
For the purpose of implementing a full and complete release and discharge of all claims, I
expressly waive the protection provided by Section 1542 of the California Civil Code which
provides:
A general release does not extend to claims which the creditor does not know or
suspect to exist in his/her favor at the time of executing the release, which if
known by him/her must have materially affected his/her settlement with the debtor.
I acknowledge that I have had the opportunity to seek legal counsel with regard to my rights under
Section 1542. I represent that I have read and understand the provisions of California Civil Code
Section 1542. I acknowledge and agree that: (a) this Agreement is intended to include within its
effect, without limitation, all claims which I have against the Company but do not know or suspect
to exist in my favor at the time of execution of this Agreement which, if known or suspected, would
materially affect my decision to execute the Agreement; and (b) this Agreement contemplates the
extinguishment of any such claim or claims, and that all rights under Section 1542 of the
California Civil Code are hereby expressly waived.
I understand that this Agreement is subject to the Older Workers Benefit Protection Act of 1990
(OWBPA) which provides that I cannot waive a right or claim under the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, unless the waiver is knowing and voluntary. I have
been advised of this law, and I agree that I am signing this Agreement voluntarily, and with full
knowledge of its consequences.
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I agree that the above terms, including the Special Consideration set forth in Exhibit 1
are consistent with my right to benefits under the Company’s Severance Pay Policy. I have no
additional rights under any other employment, severance, separation, retention, exit incentive,
employment termination, or similar plan, policy, program or practice with Employer. I agree that
the Special Consideration set forth in this Agreement and Exhibit 1 is over and above
anything owed to me by law or contract, or under the policies of the Company (other than the
Severance Pay Plan), and it is provided to me in exchange for, and specifically contingent upon, me
entering into this Agreement.
I represent that I have carefully read this entire Agreement and understand all of its terms. I
represent that no promise or inducement has been offered to me except as set forth herein, and that
this Agreement is executed without reliance upon any statement or representation by the Company or
any representative or agent of the Company. I warrant that I have full legal authority to release
any and all claims as specified herein and to undertake all other obligations as specified herein.
I warrant that I enter into this Agreement voluntarily and with full knowledge and understanding of
my legal rights and obligations. I understand that this Agreement will have a final and binding
effect and that by executing this Agreement he may be giving up legal rights. I intend this
Agreement to be legally binding.
| Dated: July 18, 2008 | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | |||
| Signature |
||||
| ▇▇▇▇▇▇▇ Jenusaitus | ||||
Accepted by ev3 Endovascular, Inc.:
By:
|
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
Its
|
Senior Vice President, Human Resources |
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EXHIBIT 1
This document, which is Exhibit 1 to the Separation Agreement and Release of Claims between
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ (“Employee”) and ev3 Endovascular, Inc. (“Agreement”),
constitutes the statement of the Special Consideration that Employee will receive pursuant to the
terms of the Agreement provided Employee signs and does not revoke the Agreement, and if Employee
otherwise complies with the terms and conditions of the Agreement.
Termination
Date: July 18, 2008 Full Years of Service: 2 years
1. Severance Pay. Severance pay in the gross amount of Three Hundred Twenty-Three Thousand
Six Hundred Forty-Four Dollars and no/cents ($323,644.00), paid in the form of continuation
of salary for the twelve (12) month period beginning July 19, 2008 and ending July 18, 2009,
less payroll withholdings that the Company reasonably believes are required by law or
elected by Employee for state and federal income taxes, FICA, and other applicable payroll
deductions, payable in accordance with the Company’s normal payroll practices. The first
installment(s) will be payable on the first payroll date after (i) Employee has provided
Employer with an original executed Separation Agreement and Release; (ii) the applicable
Revocation Period set forth in the Separation Agreement and Release has expired and Employee
has not revoked or attempted to revoke the Separation Agreement and Release; and (iii)
Employee has returned of the Employer’s property pursuant to the Separation Agreement.
2. Prorated Bonus. At such time as other senior management employees are paid their
respective Annual Incentive Bonus payments, if any, Company will pay Employee, based on
business results, a prorated bonus for 2008, which bonus (if any) amount will be based on
the Annual Incentive Bonus payment Employee would have received had he remained in the
Company’s employ thorough 2008; provided, however, that the bonus amount payable to Employee
will be prorated by a factor of 0.545 representing the duration of Employee’s service during
the 2008 year.
3. Health Insurance Benefits. If Employee timely and properly elects continued coverage
under the Company’s group medical plan, group dental, or group vision plan pursuant to
section 4980B of the Code, as amended (“COBRA”), in accordance with ordinary plan practices,
from the Termination Date through the earlier of (A) December 31, 2009, or (B) the date
Employee and/or Employee’s eligible dependents is/are no longer eligible to receive
continuation coverage pursuant to COBRA, the Company will reimburse Employee for the same
level of company-paid medical, group dental, or group vision coverage and benefits as in
effect on the Termination Date for Employee and Employee’s eligible dependents. COBRA
reimbursements will be made to Employee within 90 days of the date the COBRA payment is
incurred.
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4. Reimbursement for Executive Coaching Services. The Company will reimburse Employee for
the services of Employee’s executive coach, ▇▇▇ ▇▇▇▇▇▇▇, for three months starting July 19,
2008 (for an aggregate maximum amount of 15 hours of service). Employee understands that
Company’s reimbursement for such services must be and will be treated and reported as
taxable income to Employee.
5. Other Benefits. The Company will provide the following additional benefits to Employee:
| A. | Following the Termination Date, Employee will be entitled retain and own Employee’s work laptop computer, subject to that computer first being reviewed by the Company’s IT group and scrubbed of Company records, files, and other data. | ||
| B. | For a six month period commencing on the Termination Date, Employee will be entitled to limited services (no more than 10 hours per month) from his current administrative assistant for the performance of routine personal administrative and office tasks. |
Conditions. The Special Consideration stated above will be paid only if: (i) Employee has
provided the Company with an original executed Separation Agreement and Release of Claims;
(ii) any applicable revocation or rescission period set forth in the Agreement has expired
and Employee has not revoked, rescinded or attempted to revoke or rescind the Release; and
(iii) Employee has returned all of the Employer’s property.
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