EXHIBIT 10.1
Private and Confidential
SEVERANCE AND RELEASE AGREEMENT
THIS SEVERVANCE AND RELEASE AGREEMENT ("Agreement") is made and entered
into as of October 31, 2004 (the "Effective Date") by and between Xxxxxx X.
Xxxxxxxxx ("Employee") and Xxxxxx Medical Technology, Inc. ("Company").
DEFINITIONS:
A. As used herein, the term "Employee" shall mean Xxxxxx
X. Xxxxxxxxx, Employee's heirs, personal
representatives and assigns.
B. As used herein, the term "Company" shall mean Xxxxxx
Medical Technology, Inc., its successors, assigns,
affiliates, divisions, and all of the past and
present officers, directors, employees and agents, in
their individual and representative capacities.
WHEREAS, the Employee and the Company desire to settle and resolve all
matters pertaining to Employee's employment with Xxxxxx Medical Technology,
Inc. and the termination of that employment;
NOW THEREFORE in consideration of the promises, agreements, releases
and obligations as hereinafter set forth, it is agreed by the Employee and the
Company as follows:
1. The Employee unconditionally releases the Company from any and
all causes of action and liability related to the Employee's hire, employment,
and termination of employment at Company occurring prior to and up to the
effective date of this Agreement, including, but not limited to, any breach of
contract claims, common law tort claims, claims of discrimination, claims for
benefits (including claims under the Employee Retirement Income Security Act of
1974), as well as any claims which the Employee may have under or in connection
with any and all local, state or federal ordinances, statutes, or common law.
The only exclusion from this release is a claim that some term of this Agreement
has been violated. Company represents to Employee that as of the date of this
Agreement, it does not have or know of any claims or causes of actions which it
may have against Employee. Employee shall be entitled to indemnification by the
Company for acts arising in the course of Employee's employment in accordance
with and subject to the indemnification provisions contained in the Articles of
Incorporation and/or Bylaws of the Company as in effect from time to time.
Severance and Release Agreement PRIVATE AND CONFIDENTIAL
October 31, 2004
Page 2
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2. The Employee's employment with the Company will be terminated
at the close of business on October 31, 2004.
3. The Employee certifies that this Agreement is fully understood
by Employee, is entirely satisfactory to Employee, and that Employee's signing
of this Agreement is Employee's own free and informed act and deed and that
Employee has been given the opportunity to discuss it with counsel of Employee's
choosing.
4. The Employee acknowledges that they are currently able to work
in their current position without limitations, either physical or mental and
without any accommodation for any physical or mental ailment.
5. To the extent permitted by law, the Employee and the Company
agrees each will maintain the strictest secrecy and will not disclose the terms
of this Agreement to any agency or person except where disclosure is compelled
pursuant to legal process or for reporting purposes to Federal, State, or local
taxing authorities, or in discussions with legal and financial advisors and
employee's immediate family members.
6. The Employee further agrees not to disclose to any person any
matters relating to the confidential business affairs of the Company or the
confidential business affairs or the personal affairs of any officer, director
or employee of the Company, or to take any action or make any written or oral
statement at any time which could tend, in the sole discretion of the Company,
to disparage, demean or embarrass the Company, or its subsidiaries, divisions,
officers, directors or employees.
7. The Employee further agrees to execute Exhibit A, which
releases the Company from any and all liabilities under the Age Discrimination
in Employment Act.
8. The Employee agrees to cooperate with the Company during the
Severance period by providing information, in response to any reasonable
request, relative to the Employee's duties performed heretofore. The person
through whom this information shall be requested will be the Employee's direct
report as the date of this agreement, or their designee.
9. This Agreement, and any dispute arising in connection with its
operation or execution, shall be construed in accordance with and governed by
the statutes and common law of the State of Tennessee and shall be resolved by
binding arbitration in Memphis, Tennessee. Each party to this Agreement will
select one
Severance and Release Agreement PRIVATE AND CONFIDENTIAL
October 31, 2004
Page 3
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arbiter. The two arbiters so selected shall then select a third. Decisions of
the arbitration panel shall be binding upon the parties hereto. The prevailing
party shall be entitled to have all expenses, including, but not limited to,
attorney fees and any fees submitted by the arbitrators to be paid by the
non-prevailing party.
10. This Agreement reflects the entire agreement of the parties
relative to the subject matter hereof and supersedes all prior or
contemporaneous oral or written understandings, statements, representations or
promises.
11. The parties agree that each provision of this Agreement is
severable and further agree that if any term or provision is held to be
invalid, void, or unenforceable by a court of competent jurisdiction or an
administrative agency for any reason whatsoever, such ruling shall not affect
the validity of the remainder of this Agreement.
12. In exchange for this agreement, ADEA Release and Agreement
attached as Exhibit A the Company will provide pay and benefits as follows:
(a). Severance pay equal to five months at the salary
rate in effect at termination payable over the course
of the Severance Period in accordance with the
Company's normal payroll practices.
(b). Earned and unused vacation for 2004, if any.
(c). Professional re-employment services provided by
Xxxxxxx, Xxxxxxxxxx & Associates at the Executive
Career Transition Program level.
(d). COBRA paid group medical, dental, and vision plan
coverage during the time the employee is receiving
severance pay (the "Severance Period").
(e). The attorney's fee for review of the release
agreement of up to, but not to exceed $200.
(f). Any stock options you have are governed by the
specific stock option agreement and the applicable
stock option plan. This Agreement does not supersede
those stock related agreements. The following points
generally apply to your options: (1) options that
have not yet vested at the time of termination shall
expire and no further vesting shall occur with
respect to those options; (2) vested options remain
exercisable until
Severance and Release Agreement PRIVATE AND CONFIDENTIAL
October 31, 2004
Page 4
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the earlier of the Expiration Date or the date that is ninety
(90) days after termination if the termination is without
cause; (3) if the termination is voluntary, other than for
reasons of disability or retirement, or if the termination is
for cause, then all of the options, to the extent not
exercised prior to termination, whether exercisable or not,
shall immediately lapse and be cancelled. Check your stock
option agreement and the applicable stock option plan for the
specific terms that apply to your stock options.
THE EMPLOYEE ACKNOWLEDGES THAT EMPLOYEE READ THIS SEVERANCE AND RELEASE
AGREEMENT, THAT EMPLOYEE UNDERSTANDS ALL OF ITS TERMS AND EXECUTES IT
VOLUNTARILY AND WITH FULL KNOWLEDGE OF ITS SIGNIFICANCE AND THE CONSEQUENCES
THEREOF.
AGREED AND ACCEPTED as of the Effective Date.
EMPLOYEE: XXXXXX MEDICAL TECHNOLOGY, INC.
/s/ Xxxxxx X. Xxxxxxxxx By: /s/ Xxxxx X. Xxxx
----------------------- -----------------------------
Xxxxxx X. Xxxxxxxxx Xxxxx X. Xxxx, Vice President
Title: General Counsel and Secretary
-----------------------------
PRIVATE AND CONFIDENTIAL
EXHIBIT A
ADEA RELEASE AND AGREEMENT
As a material inducement to Xxxxxx Medical Technology, Inc.
(hereinafter referred to as "Xxxxxx" or "Employer") to enter into this ADEA
Release and Agreement (the "Release" or "Agreement") with Xxxxxx X. Xxxxxxxxx
(hereinafter referred to as "Employee") (for Employee, Employee's heirs,
executors, administrators and assigns), Employee hereby unconditionally
releases and forever discharges Xxxxxx and each of the Xxxxxx'x stockholders,
predecessors, successors, assigns, agents, directors, officers, employees,
representatives, attorneys, divisions, subsidiaries, affiliates and all persons
acting by, through, under, or in concert with any of them from any and all
charges, complaints, claims, liabilities, obligations, promises, agreements,
controversies, damages, actions, causes of action, suits, rights, demands,
costs, losses, debts and expenses (including attorney's fees and costs actually
incurred) of any nature whatsoever, known or unknown, suspected or unsuspected,
including, but not limited to, rights, under the Age Discrimination in
Employment Act of 1967, as amended from time to time, and other federal, state,
or local laws prohibiting discrimination, any claims the employee may have with
regard to Employee's hiring, employment, or electing the re-employment program
and termination of employment claims growing out of any legal restrictions on
Xxxxxx'x right to terminate its employees ("Claim" or "Claims"), which the
Employee now has, owns or holds, or claims to have owned or held, or which the
Employee at any time hereinafter may have owned or held or claimed to have owned
or held against Xxxxxx.
To comply with the Older Workers Benefit Protection Act of 1990, as
amended from time to time, the Release and Agreement has advised Employee of
the legal requirements of this Act and fully incorporated the legal
requirements by reference into this Agreement as follows:
a. This Agreement is written in xxxxxx'x terms, and the Employee
understands and comprehends its terms;
b. Employee has been advised of Employee's rights to consult an
attorney to review the Agreement;
c. Employee does not waive any rights or claims that may arise
after the date the Release is executed;
d. Employee is receiving consideration beyond anything of value
to which he already is entitled;
e. Employee has been given a reasonable period of time to
consider this Agreement.
As consideration for this Release, Xxxxxx agrees to provide the items
listed previously in paragraph 12 of the Severance and Release Agreement dated
October 31, 2004. The Employee enters into this Release with full knowledge of
its contents and enters into this Agreement voluntarily.
ADEA Release and Agreement PRIVATE AND CONFIDENTIAL
October 31, 2004
Page 2
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AGREED AND ACCEPTED
EMPLOYEE: XXXXXX MEDICAL TECHNOLOGY, INC.
I acknowledge that I fully understand and
agree that this Agreement may be pleaded by
Xxxxxx Medical Technology, Inc. as a complete
defense to any claim which hereafter may be asserted
by me or a claim against Xxxxxx Medical Technology, Inc.
for or on account of any matter or thing whatsoever
arising out of the employment relationship or my
termination from active employment.
/s/ Xxxxxx X. Xxxxxxxxx
------------------------------------------- By: /s/ Xxxxx X. Xxxx
Xxxxxx X. Xxxxxxxxx --------------------------------
Xxxxx X. Xxxx, Vice President
Title: General Counsel and Secretary
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SWORN TO AND SUBSCRIBED, before me, a SWORN TO AND SUBSCRIBED, before me, a
Notary Public, in my presence this 11th day of Notary Public, in my presence this 17th day of
November, 2004 November, 2004
/s/ Xxxxx Xxxx Xxxxxxx X. Xxxxxxxx
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Notary Public Notary Public
County of Xxxxxx Xxxxxx County
State of Tennessee Tennessee
My Commission Expires: 7-11-06 My Commission Expires: _____________________
NOTE: EMPLOYEE IS HEREBY ADVISED OF THEIR RIGHT TO RESCIND AND NULLIFY THIS
AGREEMENT, WHICH RIGHT MUST BE EXERCISED, IF AT ALL, WITHIN SEVEN (7) DAYS OF
THE DATE OF EMPLOYEE'S SIGNATURE. EMPLOYEE MUST REVOKE RELEASE BY LETTER TO
XXXXXX MEDICAL, TECHNOLOGY, INC., ATTENTION: GENERAL COUNSEL, 0000 XXXXXXX XXXX,
XXXXXXXXX, XX (ZIP CODE ILLEGIBLE), WITHIN SEVEN (7) DAYS. NO CONSIDERATION
SHALL BE CONVEYED UNTIL SUCH TIME PERIOD HAS EXPIRED.
