CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT, dated
this 30 day of March, 2010 is
between Conmed Corporation, with offices at 000 Xxxxxx Xxxx, Xxxxx, Xxx
Xxxx 00000 ("Conmed") and
Xxxxx
X. Xxxxxxx, with a residence at 0000 Xxxxxxxxxx Xxxxx, Xxxxxxx, Xxx
Xxxx 00000 ("Consultant").
WITNESSETH:
WHEREAS,
Consultant has resigned his employment from COMMED effective March 30,
2010;
WHEREAS,
Consultant has knowledge and relevant experience in the area relevant to
Conmed’s manufacturing operations and supply chain initiatives; and
WHEREAS,
in light of the foregoing, Conmed desires to retain Consultant to render
Services (as such term is hereinafter defined) to it, and Consultant desires to
render Services to Conmed.
NOW,
THEREFORE, in consideration of the above premises and of the mutual agreement
and undertakings hereinafter set forth, Conmed and Consultant agree as
follows:
1. Scope of
Work. Consultant shall be available via telephone to consult
with Conmed on issues related to the manufacturing operations, supply chain,
and/or distribution as the need may arise (“Services”). Consultant
shall render Services to Conmed, in accordance with and subject to the terms and
provisions of this Agreement.
2 Independent
Contractor. Consultant shall be deemed to be, and function as,
an independent contractor, not an employee or agent of Conmed, under this
Agreement without the capacity to bind Conmed or commit Conmed to any course of
conduct. Neither this Agreement nor Consultant's Services hereunder
shall entitle Consultant to participate in any employee benefit plan or
arrangement of Conmed. Consultant expressly acknowledges that
Consultant is not entitled to participate in any benefit plans of
Conmed. Consultant hereby expressly waives any claim for benefits
coverage in relation to the Services provided under this Agreement.
3. Representations and
Warranties of Consultant. Consultant represents and warrants
to Conmed that: (i) Consultant will use Consultant’s best efforts and such
working time and energy as may be required for the performance of the Services,
in accordance with the requests and instructions of Conmed; (ii) Consultant is
not a party to any agreement or understanding, oral or written, effective on the
date first written above or applicable during the Term restricting or limiting
Consultant’s ability to observe and perform the terms and provisions hereof on
Consultant’s part to be observed and performed; (iii) Consultant will not become
a party to any such agreement or understanding during the Term without Conmed's
prior written consent; and (iv) Consultant will comply with all applicable laws,
rules and regulations in performing Consultant’s obligations
hereunder.
4. Ownership of
Information. Any and all work prepared by Consultant for
Conmed or developed in the course of providing the Services shall belong to
Conmed. Consultant shall not circulate, disseminate or provide these
materials to any other party without the prior written consent of
Conmed.
5. Consulting
Fees. In consideration for the Services, a Certification in
form identified in Exhibit A signed weekly (the “Certification”), and
Consultant’s unrevoked Waiver and Release of Claims set forth in Exhibit B,
Conmed shall pay Consultant Five Thousand Six Hundred Thirty-Two and 35/100
dollars ($5,632.35) weekly, beginning April 15, 2010. As additional
consideration, Conmed will pay such fees as identified on Exhibit
C.
6. Confidentiality. Consultant
acknowledges that certain information not in the public domain, and proprietary
to Conmed (and any information disclosed by a third party to Conmed under an
obligation of confidentiality) including, without limitation, information
relating to current or future finances, budgets, products, processes, equipment,
services, research, development, patent applications, manufacturing,
engineering, sales information, marketing plans and policies of Conmed
("Confidential Information") may be made available to Consultant or developed by
Consultant during Consultant’s term of engagement with Conmed. During
the Term and thereafter, Consultant will treat as trade secrets of Conmed all
Confidential Information acquired or developed by Consultant during the course
of Consultant’s engagement with Conmed, and will not use any such Confidential
Information for Consultant’s own benefit nor disclose (orally or in writing) any
such Confidential Information to any third party, except as previously
authorized in writing by Conmed. Consultant will not reveal to Conmed
any confidential information of a third party that Consultant is prohibited from
disclosing to Conmed. Consultant further agrees not to enter any
Company premises without the knowledge and consent of the VP of Corporate Human
Resources. In addition to any other remedies, if you breach this
agreement, the Company, as liquidated damages, will be relieved of any
obligation to make the payment contemplated hereunder.
7. Term and
Termination. This Agreement shall commence on April 12, 2010,
and shall terminate on February 7, 2011 (“Term”) or such earlier date if
Consultant is unable to provide a Certification. Additionally, if
Consultant breaches this Agreement or the Certification, Conmed may terminate
this Agreement immediately upon written notice to
Consultant. In the event this Agreement is terminated prior
February 7, 2011, Consultant shall be compensated for Services provided up to
the effective date of termination, provided, however, that if this Agreement is
terminated by Conmed for based upon a breach of the agreement by Consultant,
Consultant shall not be compensated for any Services provided that involved a
breach of this Agreement. Upon termination of this Agreement for any reason,
Consultant shall promptly, but in no case later than five (5) days after said
termination, return to Conmed all Confidential Information, and all materials
supplied to Consultant by Conmed and copies
thereof. Notwithstand the foregoing, Consultant will receive
consulting fees through May 7, 2010 regardless of employment
status.
8.
Non-solicitation. Consultant
agrees that he will not, for a period of one (1) year following the termination
of this Agreement, directly or indirectly attempt to solicit or induce any
employee of Conmed or any of its affiliates to leave the employment of Conmed of
any of its affiliates.
10. Waiver. The
failure of either party to exercise its right to offset or indemnification with
regard to any liability incurred in its performance of the Agreement shall not
prevent such party from exercising any such right regarding such or any
subsequent liability.
11. Survival. All
terms and provisions hereof which by their terms are expressly required to be
observed and performed by Conmed or Consultant after the termination of this
Agreement shall continue thereafter in full force and effect.
12. Notices. Any
notice or communication required to be given hereunder may be delivered by hand,
deposited with an overnight courier, sent by confirmed facsimile, or mailed
postage prepaid, if to Consultant to the address above, and if to Conmed to the
address above with a copy to Conmed Corporation, 000 Xxxxxx Xxxx, Xxxxx,
XX 00000 Attention: VP of Corporate Human Resources, or at such other
address as may hereafter be furnished in writing by either party hereto to the
other. Such notice shall be deemed to have been given as of the date
it is delivered, mailed or sent, whichever is earlier.
13. Assignment. This
Agreement may not be assigned by Consultant without Conmed’s written
consent.
14. Force
Majeure. Either party's failure to observe and perform any
term or provision of this Agreement on their respective parts to be observed and
performed shall be excused in the event, to the extent and only during the
period that same arises from or is incident to unforeseen causes beyond the
excused party's control not resulting from the excused party’s fault or
negligence, including, but not limited to, acts of a public enemy, government or
God, strikes and lockouts, priorities, allocations, and unavailability of
materials at a reasonable cost.
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15. Successors and
Assigns. This Agreement shall be binding upon and inure to the
benefit of Conmed and Consultant, and their respective successors and permitted
assigns.
16. Controlling
Law. This Agreement shall be deemed to have been made in the
State of New York and shall be governed, construed and enforced under the
internal laws of said State without regard to its rules on conflicts of
law.
17. Invalidity. The
invalidity or unenforceability of any term or provision of this Agreement shall
not affect the other terms and provisions, and such invalid or unenforceable
term or provision shall, in all events, be construed and enforced to the fullest
extent permissible under law.
18. Sole
Agreement. This Agreement constitutes the entire agreement
between Conmed and Consultant respecting the subject matter hereof and the same
may not be changed or modified except by an instrument in writing executed by
both parties hereto which states that it is an amendment hereto.
[SIGNATURE
PAGE TO FOLLOW]
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IN
WITNESS WHEREOF, Conmed and Consultant have executed or caused this Agreement to
be executed as of the date and year first above mentioned.
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Xxxxx
X. Xxxxxxx
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Conmed
Corporation
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Signature: /s/ Xxxxx X.
Xxxxxxx
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By: /s/ Xxxx X.
Xxxxxxx
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Name:
Xxxx X. Xxxxxxx
Title: Vice
President
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Date: 3-30-2010
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Date: 3-30-2010
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EXHIBIT
A
CERTIFICATION
CONMED
Corporation
Attn: VP
Corp HR
000
Xxxxxx Xxxx
Xxxxx,
Xxx Xxxx 00000
Dear
Xxxxxxx,
This letter shall serve to confirm that
since February 5, 2010, I am and have not been employed or otherwise
earning income or any other form of compensation (including equity and/ or debt
interests), whether as a consultant, agent, independent contractor or in any
other capacity, since I was employed at Conmed Corporation. I
agree to notify you when I am employed or otherwise earning income or any other
form of compensation (including any equity and/or debt interest) within three
(3) business days of such an event.
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Sincerely,
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/s/ Xxxxx X.
Xxxxxxx
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Xxxxx
X. Xxxxxxx
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EXHIBIT
B
WAIVER
AND RELEASE OF CLAIMS
Consultant, personally and on behalf of
his heirs, executors, trustors, trustees, administrators, personal
representatives, beneficiaries, successors, and assigns, hereby releases Conmed
and its current and former officers and directors, as well as Conmed’s current
and former employees, consultants, contractors and representatives (in both
their individual and representative capacities) from any and all demands,
charges, claims or causes of action which he may have against them, whether
known or unknown, relating to any matter whatsoever, including but not limited
to his employment with or separation from Conmed as of the date this Waiver and
Release is executed, including, but not limited to, all claims for relief under
any local, state or federal law, statute, rule, regulation or
enactment. Except as specifically provided for in the following
paragraph below, this Waiver and Release shall include, but is not limited to,
any charges, claims or causes of action which Consultant may have for relief
under any law, statute, rule, regulation or enactment dealing with employment
discrimination and/or harassment, including, but not limited to all claims under
the applicable Federal and State statutes, such as Title VII of the Civil Rights
Act, the Age Discrimination in Employment Act, the New York Human Rights Law,
the New York Labor Law, the Americans With Disabilities Act, the Xxxxxxxx-Xxxxx
Act, the Family and Medical Leave Act, the Fair Labor Standards Act, the
Employee Retirement Income Security Act or any other applicable federal, state,
or local law, as well as all claims or causes of action for wages, bonuses, or
other payments, wrongful discharge, discrimination, tort, libel, or slander,
retaliation, or breach of contract arising under the statutory or common law of
any jurisdiction, and claims for attorney fees. Consultant
understands that this Waiver and Release is an essential and material term of
the Consulting Agreement and that, without this Waiver and General Release, no
agreement would have been reached by the parties. This Waiver and
Release is intended to be a general release and cover any claim in any way
arising out of Consultant’s relationship with and separation from employment
with Conmed, including any and all rights or claims of unlawful retaliation,
discrimination or harassment on the basis of age, race, sex, gender, marital
status, disability, national origin, religion, military leave or any other basis
under federal, state, or local law. Consultant is not waiving any
rights or claims which may arise after the date he signs this Waiver and
Release.
Consultant understands that nothing in
this Waiver and Release prevents him from filing a charge (including a challenge
to the validity of this Waiver and Release) with the Equal Employment
Opportunity Commission (the “EEOC”) or participating in any investigation or
proceeding conducted by the EEOC. However, Consultant understands and
agrees that he is waiving any right to recover any monetary or other personal
relief as a result of any such EEOC proceedings or any subsequent legal action
brought by the EEOC on his behalf.
Older
Worker Benefit Protection Act Disclosure. Consultant acknowledges
that:
(a) He
has read this entire Waiver and Release and fully understands its
terms;
(b) He
is receiving payment and other consideration that he would not otherwise be
entitled to;
(c) He
understands and acknowledges that he has twenty-one (21) days from the date of
receipt of this Waiver and Release to consider its terms;
(d) He
was advised to consult with an attorney prior to signing this Waiver and Release
and has had the opportunity to review it with an attorney;
(e) He
understands that in order to receive the retiree health insurance benefits under
the CONMED Corporation Healthcare Plan, he must sign and return this Waiver and
Release, and that he shall not execute it prior to his last day of
employment;
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(f) He
is voluntarily entering into this Waiver and Release with the exception of final
expense reports covering October 2009 through January 2010 and his car allowance
for March 2010;
(g) He
is not waiving any rights or claims which may arise after the date of this
Waiver and Release; and
(h) He
has seven (7) days following execution of this Waiver and Release to revoke it
by notifying in writing, VP of Corporate Human Resources at Conmed Corporation,
000 Xxxxxx Xxxx, Xxxxx, XX 00000xx his revocation and this Waiver and Release
will not be effective or enforceable until the seven (7) day period has
expired.
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/s/ Xxxxx X.
Xxxxxxx
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3-30-2010
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Xxxxx
X. Xxxxxxx
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Date
signed
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STATE OF
NEW
YORK )
) ss.:
COUNTY OF
ONONDAGA )
On the
30th day
of March in the year 2010 before me, the undersigned, a notary public in and for
said State, personally appeared Xxxxx X. Xxxxxxx, personally known to me or
proved to me on the basis of satisfactory evidence to be the individual whose
name is subscribed to the within instrument and acknowledged to me that he
executed the same.
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/s/ Xxxxxxx X.
Xxxxxx
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Notary
Public
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7
Exhibit
C
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·
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Outplacement
services to be with an agreed upon vendor for a period of six (6) months
under terms to be negotiated between Conmed and the vendor, fees not to
exceed $30,000.
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·
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2010
installment of Consultant’s initiation fees for the Onondaga country club
of $5,751 00
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[end of
list]
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Xxxxxxx
X. Xxxxx
VP
Corporate Human Resources
and
Deputy General Counsel
CONMED
Corporation
000
Xxxxxx Xxxx
Xxxxx,
XX 00000
Re: Resignation of
Employment
This
letter serves as my resignation from employment with CONMED Corporation,
effective March 30, 2010 and acceptance of the terms of this Consulting
Agreement.
Sincerely,
/s/ Xxxxx X.
Xxxxxxx
Xxxxx X.
Xxxxxxx
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