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EXHIBIT 10.5
SEVERANCE AGREEMENT AND RELEASE
This Severance Agreement and Release (the "Agreement") is entered into
as of December 23, 1998, among Xxxxxxx Medical Products, a Utah corporation
(the "Company"), Xxxxxxxx-Xxxxx Corporation, a Delaware corporation
("Xxxxxxxx-Xxxxx"), and Xxxx X. Xxxxxxx (the "Executive").
WHEREAS, the Executive is presently a director of the Company, and is
presently employed by the Company in the capacity of Chairman of the Board,
Chief Executive Officer and President; and
WHEREAS, the Company, Xxxxxxxx-Xxxxx, and Jazz Acquisition Corp., a
Utah corporation and a wholly-owned subsidiary of Xxxxxxxx-Xxxxx ("Merger
Sub"), have entered into an Agreement and Plan of Merger dated as of the date
hereof (as amended or supplemented from time to time, the "Merger Agreement"),
pursuant to which Merger Sub will be merged with and into the Company and the
Company will become a wholly-owned subsidiary of Xxxxxxxx-Xxxxx, subject to the
terms and conditions thereof; and
WHEREAS, the parties hereto have entered into a Consulting Agreement
(the "Consulting Agreement") and a Noncompetition Agreement (collectively the
"Other Agreements") as of the date hereof; and
WHEREAS, the Executive will cease to be a director, officer and
employee of the Company and of all its subsidiaries and affiliates, effective
as of the Effective Time of the Merger (as such terms are defined in the Merger
Agreement); and
WHEREAS, the Company, Xxxxxxxx-Xxxxx and the Executive desire to make
appropriate arrangements for the release by the Executive of any and all claims
he may have against the Company and Xxxxxxxx-Xxxxx, except as set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and agreements
contained herein, and in consideration of the execution of the Other
Agreements, and the consulting services to be provided to the Company by
Executive pursuant to the Consulting Agreement, and the compensation and
benefits incident thereto, the adequacy and sufficiency of which are hereby
acknowledged, the Company, Xxxxxxxx-Xxxxx and the Executive hereby agree as
follows:
1. Voluntary Act. The Executive hereby represents to the Company and
Xxxxxxxx-Xxxxx that this Agreement is entered into voluntarily, and with a full
understanding of and agreement with its terms, for the purpose of receiving
additional benefits from the Company and releasing the claims set forth in
Section 3 hereof.
2. Cessation of Employment. The Executive's employment with the
Company and with all of its subsidiaries and affiliates will cease as of the
Effective Time of the Merger.
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3. Agreements and Acknowledgment. Effective as of the Effective Time
of the Merger, the Executive, for him and his attorneys, heirs, executors,
administrators, successors and assigns, fully, finally and forever releases and
discharges the Company and Xxxxxxxx-Xxxxx, and all subsidiary and/or affiliated
companies and businesses thereof, as well as their successors, assigns,
officers, owners, directors, agents, representatives, attorneys, and employees,
of and from all claims, demands, actions, causes of action, suits, damages,
losses, and expenses, of any and every nature whatsoever, whether known or
unknown, asserted or unasserted, as a result of actions or omissions occurring
through the date of this Agreement, including without limitation any and all
claims of alleged employment discrimination, either as a result of the
negotiated and specifically agreed to separation of the Executive's employment
or otherwise, under the Age Discrimination in Employment Act, Title VII of the
Civil Rights Act of 1964, the Americans with Disabilities Act, any other
federal, state or local statute, rule, ordinance, or regulation, as well as any
claims for alleged wrongful discharge, negligent or intentional infliction of
emotional distress, breach of contract, fraud, or any other unlawful behavior,
the existence of which is specifically denied. Nothing contained herein shall
relieve the Company or Xxxxxxxx-Xxxxx from any obligation under this Agreement,
any employee benefit plan in which the Executive is a participant or under
which the Executive is entitled to benefits, the Other Agreements, or the
Merger Agreement or the transactions contemplated thereby. Executive
acknowledges that he is not entitled to severance or any similar arrangement
under any other severance plan, program or arrangement maintained by the
Company or Xxxxxxxx-Xxxxx.
4. Consultation with Attorney. The Executive represents that he was
advised to consult with an attorney before signing this Agreement, and that he
has consulted with an attorney and/or other persons to the extent the Executive
desired to do so before signing this Agreement.
5. No Representations or Inducements. The Executive agrees that no
promises, representations or inducements have been made which caused the
Executive to sign this Agreement other than those expressly set forth above.
6. Successors; Binding Agreement. This Agreement shall inure to the
benefit of and be enforceable by the Executive and by his personal or legal
representatives, executors, administrators, heirs, distributees, devisees and
legatees, and by the Company and Xxxxxxxx-Xxxxx and their respective successors
and assigns.
7. Notices. All notices and other communications required or permitted
under this Agreement shall be in writing and shall be deemed to have been duly
given when personally delivered, when delivered by facsimile or by courier or
overnight express service or five days after having been sent by certified or
registered mail, postage prepaid, addressed: (a) if to the Executive, to the
Executive's address set forth in the records of the Company, or if to the
Company or Xxxxxxxx-Xxxxx, to Xxxxx X. Xxxxxx, President-Professional Health
Care Sector, Xxxxxxxx-Xxxxx Corporation, 0000 Xxxxxxx Xxxxxx Xxxx, Xxxxxxx, XX
00000, Fax: (000) 000-0000, with a copy to O. Xxxxxx Xxxxxxxx, Senior Vice
President-Law and Government Affairs, Xxxxxxxx-Xxxxx Corporation, 000 Xxxxxx
Xxxxx, Xxxxxx, XX 00000, Fax: (000) 000-0000, or (b) to such other address as
any party may have furnished to the other parties in writing in accordance
herewith, except that notices of change of address shall be effective only upon
receipt.
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8. Governing Law; Validity. The interpretation, construction and
performance of this Agreement shall be governed by and construed and enforced
in accordance with the internal laws of the State of Utah without regard to
principles of conflicts of laws. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provisions of this Agreement, which other provisions shall remain in
full force and effect.
9. Review Period. The Executive represents that he was given at least
twenty-one (21) days to consider the terms of this Agreement. If the Executive
has signed this Agreement before the end of the this twenty-one (21) day
period, it is because he freely chose to do so after carefully considering its
terms.
10. Revocation. The Executive has seven (7) days from the signing of
this Agreement to revoke this Agreement. If the Executive does not revoke this
Agreement in writing delivered to O. Xxxxxx Xxxxxxxx within seven (7) days of
the date of this Agreement, this Agreement will become final and binding.
11. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same instrument.
12. Miscellaneous. No provision of this Agreement may be modified or
waived unless such modification or waiver is agreed to in writing and executed
by the Executive and by a duly authorized officer of the Company and of
Xxxxxxxx-Xxxxx. No waiver by any party hereto at any time of any breach by
another party hereto of, or failure to comply with, any condition or provision
of this Agreement to be performed or complied with by such other party shall be
deemed a waiver of any similar or dissimilar conditions or provisions at the
same or at any prior or subsequent time. Failure by the Executive, the Company
or Xxxxxxxx-Xxxxx to insist upon strict compliance with any provisions of this
Agreement or to assert any right which the Executive, the Company or
Xxxxxxxx-Xxxxx may have hereunder shall not be deemed to be a waiver of such
provision or right or any other provision of or right under this Agreement.
13. Effectiveness. The provisions of Section 2 and 3 hereof shall be
effective only upon the Effective Time of the Merger, and shall be null and
void if the Merger Agreement is terminated and the Merger shall not become
effective pursuant to the terms thereof. The Executive agrees to reaffirm the
provisions of this Agreement through the Effective Time of the Merger with
respect to all matters relating to his employment with the Company and all
officerships and directorships held by the Executive with respect to the
Company and its subsidiaries. If the Executive does not reaffirm such
provisions of this Agreement as provided herein, the Executive will forfeit the
financial consideration set forth in Section 4 of the Consulting Agreement.
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IN WITNESS WHEREOF, each of the Company and Xxxxxxxx-Xxxxx has caused
this Agreement to be executed by its duly authorized officer and the Executive
have executed this Agreement as of the day and year first above written.
XXXXXXX MEDICAL PRODUCTS
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Executive Vice President
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XXXXXXXX-XXXXX CORPORATION
By /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
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Title: Senior Vice President and Chief
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Financial Officer
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EXECUTIVE:
/s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
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