December 14, 2005 VIA HAND DELIVERY Mr. John J. Puisis 811 Lenox Glenview, IL 60025 RE: Severance Agreement and Release Dear John:
Exhibit 10.17
December 14, 2005
VIA HAND DELIVERY
Xx. Xxxx X. Xxxxxx
000 Xxxxx
Xxxxxxxx, XX 00000
000 Xxxxx
Xxxxxxxx, XX 00000
RE: Severance Agreement and Release
Dear Xxxx:
This will confirm our proposal concerning the termination of your employment with Third Wave
Technologies, Inc. (“Company”) on December 14, 2005 (“Separation Date”). In connection with the
separation, the Company offers you the following benefits:
(1) The Company shall provide you with the following:
(A) The Company will pay you your regular wages through the Separation Date;
(B) The Company will pay you for any accrued vacation that you have not used as of the
Separation Date;
(C) If you participated, you will retain all your vested rights in the Company’s 401(k)
plan;
(D) You will receive a severance payment equal to 24 months of your then current Base
Salary, 6/24th of which shall be paid in a lump sum within 3 business days of the
Revocation Date, with the balance to be paid in 18 equal monthly installments (the first
installment due on the first day of the calendar month following the month in which
termination occurs).
(E) All stock options granted to you shall immediately be accelerated and shall be
considered fully vested. Notwithstanding anything contained in the Option Grant Agreements
to the contrary, your vested Non-Qualified Stock Options shall be open for exercise until
the latest date on which those options would expire or are eligible to be exercised under
the Option Grant Agreements, determine without regard to such termination or resignation;
provided, however, that in the event of a conflict between any Option Grant Agreement this
Agreement shall control. You and the Company acknowledge and agree that such extended
exercise period shall not apply to any Incentive Stock Options the exercise periods for
which shall continue to be governed by the terms of the Option Grant Agreements. You
understand and agree that any extended exercise period granted to Incentive Stock Options
issued to Executive on or prior to July 17, 2003 converted those Incentive Stock Options
into Non-Qualified Stock Options.
December 14, 2005
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(F) The Company will provide you and your eligible dependents, with the right to
participate, at your own expense, in the plan in accordance with the mandates of the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”). Unless you
and, if applicable, your eligible dependents exercise these rights in a timely manner,
coverage under the Company’s group health insurance plan will cease as of the last day of
the month in which the Separation Date occurred. In addition, you will receive an amount
equal to 1/12th of 7.6% of your Base Salary payable each month (the first
installment due on the first day of the calendar month following the month in which
termination occurs) in twelve (12) monthly installments, or a monthly amount equal to
1/12th of such greater percentage as may be in effect for senior employees of the
Company immediately prior to your termination; which amount is intended, but not required,
to be used by you to acquire such medical, dental, hospitalization, accident, disability,
life insurance and any other benefits as you may determine. As of the Separation Date, you
will cease to participate in all other Company benefit plans.
(G) You will receive an outplacement consulting package up to a maximum value of
$15,000 that shall be selected at your discretion.
(H) The Company agrees not to contest any claim for unemployment filed after the
Separation Date.
All payments described above, will be subject to normal deductions for income and employment taxes
and will be made to you no later than the time required by applicable law.
(2) Your Undertakings. In exchange for the benefits provided to you under Paragraph
2, above, you agree as follows:
(A) You agree, on behalf of yourself, your heirs, successors and assigns, to release
the Company, its affiliates and subsidiaries and their respective past and present officers,
directors, stockholders, partners, members, agents and employees (collectively “Released
Parties”) from any claims arising on or before the date you sign this agreement. This
includes, but is not limited to, giving up: (i) any claims under the Age Discrimination in
Employment Act (ADEA) of 1967, the Older Worker Benefit Protection Act, the Americans with
Disabilities Act, the Employee Retirement Income Security Act, the Civil Rights Act of 1964,
as amended, or claims under any other federal, state or local employment discrimination or
employee benefit laws, (ii) any defamation, privacy, wrongful discharge or other tort or
breach of contract claims under state law, (iii) any retaliation claims, (iv) any claims for
compensatory, consequential or punitive damages, back pay, front pay, costs, attorneys fees,
interest or other expenses, and (v) any other legal obligation or responsibility arising
from or in respect to your employment or termination of employment except for a claim to
enforce this Agreement. This release of claims includes any claims, whether they are
presently known or unknown, or anticipated or unanticipated by you. You should not construe
references to specific claims as in any way limiting the general and comprehensive nature of
the release of claims provided under this Paragraph 2(A). You agree to waive and give up
any benefit conferred on you by any order or judgment issued in connection with any
proceeding filed against the Released Parties regarding
December 14, 2005
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any claim released in this agreement. This release does not apply to claims for
benefits under any applicable workers’ compensation law;
(B) You agree that, as of the Separation Date, you have or will expeditiously return to
the Company all of its property and all of the property of its present and former officers,
directors, stockholders, partners, members, agents, employees and customers which you
possess or over which you have direct or indirect control, including, but not limited to,
all monies, documents, electronic or otherwise, records and files, credit cards, office
keys, Company vehicles, cellular telephones, and electronically encoded information such as
computer disks, etc. (and all copies of such Company property);
(C) You agree not to engage at any time in any form of conduct or make any statements
or representations, or direct any other person or entity to engage in any conduct or make
any statements or representations, that disparage, criticize or otherwise impair the
reputation of the Company or any of the Released Parties (defined above). Nothing contained
in this Paragraph 2(C) shall preclude you from providing truthful testimony required
pursuant to subpoena or other legal process;
(D) You agree to actively cooperate with the Company, including giving depositions and
as a witness, in connection with the legal proceedings or matters in which the Company is or
may become involved;
(E) You agree that all post-employment obligation set forth in that certain Employment
Agreement, date September 19, 2001, between you and the Company, as amended on July 17, 2003
and June 14, 2004 (the “Employment Agreement”), shall remain in full force and effect
according to the terms of such agreement; and
(F) You understand that the Company has no obligation to rehire you, and you agree not
to seek employment or re-employment from the Company.
(3) Acceptance and Revocation Procedures. The Company wishes to ensure that you
voluntarily agree to the terms contained in this agreement and do so only after you fully
understand them. Accordingly, the following procedures shall apply:
(A) You agree and acknowledge that you have read this agreement, understand its
contents, and may agree to the terms of this agreement by signing and dating it and
returning the signed and dated document, via mail, hand delivery, or overnight delivery, so
that it is received by Xxxxx X. Xxxxxx, c/o Xxxxxxx Xxxx & Xxxxxxxxx, LLP, 000 Xxxx
Xxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxxxxxx 00000-0000 on or before 5:00 p.m. Central
Time on the twenty-first (21st) calendar day after you receive it.
(B) You agree and acknowledge that you have been advised by the Company to consult with
an attorney prior to signing this agreement;
December 14, 2005
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(C) You understand that this agreement, at Paragraph 2(A), above, includes a final
general release, including a release of all claims under the Age Discrimination in
Employment Act;
(D) You understand that you have seven (7) calendar days after signing this agreement
within which to revoke your acceptance of it (“Revocation Period”). Such revocation will
not be effective unless written notice of the revocation is, via mail, hand delivery, or
overnight delivery, directed to and received by Xxxxx X. Xxxxxx, c/o Xxxxxxx Xxxx &
Xxxxxxxxx, LLP, 000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxxxxxx 00000-0000 on or
before 5:00 p.m. Central Time.
(E) This agreement will not be binding or enforceable unless you have signed and
delivered it as provided in Paragraph 3(A), above, and have chosen not to exercise your
revocation rights, as described in Paragraph 3(D), above. If you give timely notice of your
intention to revoke your acceptance of the terms set forth in this agreement, this agreement
shall become null and void, and all rights and claims of the parties which would have
existed, but for the acceptance of this agreement’s terms, shall be restored; and
(F) You represent and warrant to the Company that, in the event, you choose to accept
the terms of this agreement by signing it, the date and time appearing above your name on
the last page of this agreement shall be the actual date and time on which you have signed
the agreement.
(4) Miscellaneous. Should you accept the terms of this agreement, its terms will be
governed by the following:
(A) This agreement constitutes the complete understanding between you and the Company
concerning all matters affecting your employment with the Company and the termination
thereof. If you accept this agreement, this agreement supersedes all prior agreements,
understandings and practices concerning such matters, including, but not limited to, any
Company personnel documents, handbooks, policies, incentive or bonus plans or programs, and
any prior customs or practices of the Company; provided, however, that this Paragraph 4(A)
does not apply to any prior confidentiality, non-competition or other restrictive covenant
obligations that you owe to the Company (including, but not limited to, such obligations set
forth in Section 12 [Confidentiality], 13 [Non-Compete; Non-Solicit] and 15 [Intellectual
Property]) which shall survive and remain in full force and effect following the Separation
Date;
(B) This agreement and its interpretation shall be governed and construed in accordance
with the laws of the State of Wisconsin and shall be binding upon the parties hereto and
their respective successors and assigns;
(C) In the event that you breach any provision of this agreement, you agree that the
Company may suspend all additional payments under this agreement, recover any damages
suffered as a result of such breach and recover from you any reasonable attorneys’ fees or
costs it
December 14, 2005
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incurs as a result of your breach. In addition, you agree that the Company may seek
injunctive or other equitable relief as a result of a breach by you of any provisions of
this agreement.
This agreement is intended to resolve all outstanding issues between you and the Company in a
comprehensive manner.
Should you have any questions, please feel free to contact me.
| Very truly yours, THIRD WAVE TECHNOLOGIES, INC. |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Xxxxx X. Xxxxxx | ||||
I agree with and accept the terms contained in
this agreement and agree to be bound by them.
Dated this 20th day of December, 2005.
this agreement and agree to be bound by them.
Dated this 20th day of December, 2005.
| /s/ Xxxx X. Xxxxxx | ||||
| Xxxx X. Puisus | ||||
