Separation Agreement Francis X. McGillin March 12, 2020
EXHIBIT 10.1
Xxxxxxx X. XxXxxxxx
March 12, 2020
This Separation Agreement, including the release of claims, (the "Agreement") is made by and between Xxxxxxx X. XxXxxxxx, an individual, and NeuroMetrix, Inc. a Delaware corporation ("NeuroMetrix").
WHEREAS, NeuroMetrix desires to provide Xx. XxXxxxxx with separation benefits to assist in transition following the separation of Xx. XxXxxxxx’x position with NeuroMetrix; and
WHEREAS, Xx. XxXxxxxx agrees, in exchange for receiving the separation benefits, to waive and release any and all claims that Xx. XxXxxxxx may have against NeuroMetrix except for those claims that cannot be waived as a matter of law and any and all rights and remedies, in law and in equity, to enforce the terms of this Separation Agreement;
NOW THEREFORE, in consideration of the mutual promises and releases contained herein and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties agree as follows:
1. | Salary and Benefits Continuation. Upon the execution of this Agreement, the parties agree as follows: |
• | Xx. XxXxxxxx’x employment with NeuroMetrix shall end on March 31, 2020 (“Separation Date”). Prior to the Separation Date, NeuroMetrix shall continue to provide Xx. XxXxxxxx his regular salary, compensation and all other benefits. Xx. XxXxxxxx is entitled to these payments regardless of whether or not he signs this Separation Agreement. NeuroMetrix shall pay Xx. XxXxxxxx any outstanding accrued, but unused, vacation days in his final paycheck. If Xx. XxXxxxxx will have used more PTO than accrued at that date, Xx. XxXxxxxx will not be required to pay it back. |
• | Additionally, Xx. XxXxxxxx will receive from NeuroMetrix a separation payment of $75,000, reduced by appropriate taxes which shall be paid in one lump sum within 8 calendar days of signing this agreement. |
• | Additionally, Xx. XxXxxxxx will receive an unrestricted separation grant in shares of NeuroMetrix common stock with a value of $75,000, reduced by appropriate taxes to be paid in cash by NeuroMetrix. The number of shares will be set as of the closing price on the business day immediately preceding the signing date. |
• | As Xx. XxXxxxxx elects to continue health insurance coverage under the NeuroMetrix health insurance plan, in accordance with the health care continuation coverage provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"), NeuroMetrix will directly pay to ADP TotalSource the full cost of such insurance during the period from April 1, 2020 through December 31, 2020. Continuation of COBRA coverage beyond this period, if available, will be Xx. XxXxxxxx’x responsibility. NeuroMetrix shall provide Xx. XxXxxxxx with additional information regarding COBRA benefits under separate cover. |
• | Xx. XxXxxxxx agrees that, within fifteen (15) days of the Separation Date, he will submit his final documented expense reimbursement statement reflecting all business expenses he incurred through the Separation Date, if any, for which he seeks reimbursement. NeuroMetrix will reimburse him for these expenses pursuant to its regular business practice. |
2. | Employee Release. In consideration of the agreement of NeuroMetrix, Inc. to make payment and to provide separation benefits to Xx. XxXxxxxx, and for other good and valuable consideration, Xx. XxXxxxxx, for himself and for his agents, heirs, executors, legatees, administrators, successors and assigns, hereby irrevocably and unconditionally releases and discharges NeuroMetrix, Inc. and its current and former shareholders, directors, officers, agents and employees, and their respective successors, assigns, representatives, agents, heirs, executors, and administrators (“Releasees”) of and from any and all claims of any kind (including claims for attorney’s fees and costs), charges, actions and causes of action, whether in law or in equity, with respect to, or arising out of, Xx. XxXxxxxx’x employment by one or more of the Releasees or the cessation of that employment. This includes but is not limited to any and all claims in contract or tort and claims arising under federal, state or other local laws prohibiting discrimination, including age discrimination under the Age Discrimination in Employment Act (“ADEA”). |
3. | Nothing contained in this paragraph and/or this Agreement is intended, nor shall be construed: (i) to waive or release any future claim arising after the date Xx. XxXxxxxx signs this Agreement; (ii) to limit Xx. XxXxxxxx’x right to enforce |
the terms of this Agreement; (iii) to waive or release any claims which cannot be waived as a matter of law; (iv) to waive or release any claims of unemployment benefits, COBRA benefits and/or any claims under Workers Compensation laws; (v) to waive or release any claims and/or rights to Xx. XxXxxxxx’x 401(k) account and/or any retirement account; (vi) to waive or release any claims and/or rights Xx. XxXxxxxx has to any stock, common stock, equity, stock options, grants and/or any other similar rights; and/or, (vii) to waive or release any indemnification rights Xx. XxXxxxxx may have from the NeuroMetrix for claims made against Xx. XxXxxxxx arising out of or in connection with his employment with NeuroMetrix.
4. | Xx. XxXxxxxx agree to provide transitional support to NeuroMetrix as reasonably needed and agreed upon during the period of April 1 to June 30, 2020. At the present time the Company and Xx. XxXxxxxx estimate that this will involve consulting services of one day per week during April and one day per month during May and June 2020. Compensation for this transition support is included within the consideration that NeuroMetrix is providing Xx. XxXxxxxx under this Agreement. |
This General Release is intended to be as broad as permitted by law, but Xx. XxXxxxxx, understands that it is not a release of such rights as he may have to file for unemployment or workers’ compensation benefits, nor does this General Release prevent him from filing, cooperating with, or participating in any proceeding before the Equal Employment Opportunity Commission or any other governmental agency as authorized by law (although Xx. XxXxxxxx acknowledges that he may not recover any monetary benefits in any such proceeding).
In addition, Xx. XxXxxxxx, agrees not to disparage or defame NeuroMetrix in any respect or to make any derogatory comment, whether written or oral, regarding NeuroMetrix that relates to the Company’s business or related activities or relationship between Xx. XxXxxxxx and NeuroMetrix. NeuroMetrix agrees not to disparage or defame Xx. XxXxxxxx in any respect or to make any derogatory comment, whether written or oral, regarding Xx. XxXxxxxx that relates to his performance or related activities or relationship between Xx. XxXxxxxx and NeuroMetrix.
NeuroMetrix and Xx. XxXxxxxx agree to maintain in confidence and not to disclose the terms of this Agreement, including but not limited to the amount of the payments described herein and/or any facts surrounding Xx. XxXxxxxx’x employment and separation from employment. It shall not be considered a breach of the obligation of confidentiality for Xx. XxXxxxxx to make disclosure of the settlement terms and the underlying events to Xx. XxXxxxxx’x immediate family, or to make disclosure of the settlement terms and the underlying events in order to obtain private and confidential legal, tax or financial advice, to enforce this Agreement, to respond to any inquiry from any governmental entity, as part of any filing with any court, or as required/allowed by law and/or court order. It shall not be considered a breach of the obligation of confidentiality for NeuroMetrix to make disclosure of the terms of this Agreement to the extent necessary to obtain approval for, and as required for implementation of, the terms, or for purposes of reporting this Agreement internally, or as part of normal external disclosure of financial information to an auditor, or as required by taxing or other governmental authorities.
Xx. XxXxxxxx and NeuroMetrix agree that this Agreement supersedes and replaces both the employment agreement between Xx. XxXxxxxx and NeuroMetrix dated on or about August 14, 2017 and the NeuroMetrix, Inc. Non-Compete clause between Xx. XxXxxxxx and NeuroMetrix dated on or about August 14, 2017. Xx. XxXxxxxx and NeuroMetrix both agree that the employment agreement between Xx. XxXxxxxx and NeuroMetrix dated on or about August 14, 2017 and the NeuroMetrix, Inc. Non-Compete clause between Xx. XxXxxxxx and NeuroMetrix dated on or about August 14, 2017 are no longer valid or enforceable. For avoidance of doubt, both Xx. XxXxxxxx and NeuroMetrix agree that Xx. XxXxxxxx is not bound by any non-compete provision.
NeuroMetrix shall not contest Xx. XxXxxxxx’x application and/or award of unemployment benefits. NeuroMetrix shall respond truthfully to any inquiry by the Massachusetts Department of Unemployment Assistance and/or any other similar agency.
In response to any inquiry from prospective employers, NeuroMetrix shall only provide Xx. XxXxxxxx’x dates of employment and last position held.
This Agreement shall be governed by Massachusetts law, and the courts of the Commonwealth of Massachusetts, either federal or state, shall have jurisdiction over, and be the proper venue for, any disputes arising out of this Agreement.
This Agreement sets forth the entire understanding and agreement between the Parties and fully supersedes any and all prior contracts or agreements between the Parties pertaining to compensation or severance, and it likewise fully supersedes any and all other conflicting agreements or understandings between the Parties. No statement, representation, warranty, covenant or agreement of any kind not expressly set forth in this Agreement will affect, or be used to interpret, change or restrict, the express terms and provisions of this Agreement.
This Agreement may not be modified or amended except in a writing signed by both NeuroMetrix and Xx. XxXxxxxx. The terms and provisions of this Agreement may be waived, or consent for the departure therefrom granted, only by written document executed by the party entitled to the benefits of such terms or provisions.
This Agreement may be executed in two or more counterparts, and by different parties hereto on separate counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. For all purposes a signature by fax, email and/or other electronic means shall be treated as an original.
Xx. XxXxxxxx acknowledges that he has been advised that in this letter he is giving a release and that Xx. XxXxxxxx should consult with an attorney. In order to accept the offer in this letter, Xx. XxXxxxxx understands that he must sign and return this letter to Xxxxxxxx Xxxxx, Human Resources, at NeuroMetrix, Inc., 0-X Xxxx Xxxxxx, Xxxxxx, XX 00000 within twenty-one (21) days after the date of this letter. Any changes to this letter or the offer in this letter, whether material or not, will not extend this deadline. Further, Xx. XxXxxxxx understands that if he does sign this letter and return it to Xxxxxxxx Xxxxx, he may nevertheless rescind his signature by notifying Xxxxxxxx Xxxxx in writing within 7 days after signing this letter. If Xx. XxXxxxxx does not so rescind his signature, this letter will become a legally binding agreement between Xx. XxXxxxxx and NeuroMetrix on the eighth (8th) day after he signs it. At that time, NeuroMetrix will begin to process the severance, stock health insurance premium payments, and all other payments due to Xx. XxXxxxxx as described above in this letter.
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Xxxxxxx XxXxxxxx
EVP and Chief Commercial Officer
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Date
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Xxxx X. Xxxxxx
President and CEO
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Date
