Exhibit 10.1
SEPARATION AGREEMENT
This Separation Agreement (hereinafter "Agreement") is made and
entered into by and between Xxxxx X. Xxxxxxx (hereinafter "Solomon") and Integ
Incorporated (hereinafter "the Company").
WHEREAS, Solomon has been employed by the Company as its President and
Chief Executive Officer; and
WHEREAS, the Company has recently commenced a search for a new
President and Chief Executive Officer; and
WHEREAS, Solomon and the Company wish to affect the termination of
Solomon's employment with the Company on the terms and conditions set forth
herein;
NOW, THEREFORE, in consideration of the provisions and of the mutual
covenants contained herein, the parties agree as follows:
1. Until such time as the Company's new President and Chief Executive
Officer commences employment with the Company or until September 30, 1998,
whichever occurs sooner, Solomon will continue as the Company's President and
Chief Executive Officer. During this period of time, Solomon will have the
duties and responsibilities he exercised prior to the date of this Agreement.
During this period of time, Solomon agrees that he will devote his full time,
attention, knowledge, and skill exclusively to the loyal service of the Company
and will use his best efforts to carry out all of the duties and
responsibilities that are or may be assigned to him. During this period of time,
Solomon will be eligible to participate in any bonus plan or program
adopted by the Company as well as salary increases, stock options, and other
benefits made available on an across the board basis to the Company's executive
management team.
2. Solomon will resign all officer, director, and other positions with
the Company, including, but not limited to, President and Chief Executive
Officer and Director of the Company, as of the close of business on the date the
Company's new President and Chief Executive Officer commences employment with
the Company or September 30, 1998, whichever occurs sooner (hereinafter "the
Resignation Date"). The Company will accept Solomon's resignation of all
officer, director, and other positions with the Company as of such date and
time.
3. After the Resignation Date, Solomon will continue to be a
participant in the retirement and other employee benefit plans sponsored by the
Company in accordance with the terms and conditions set forth in such plans.
Solomon will be entitled to begin receiving benefits under the retirement plans
or to elect to roll-over the amounts in his retirement accounts at the times and
under the terms and conditions set forth in such retirement plans. Nothing in
this Agreement or the General Release attached hereto as Exhibit A will be
construed to limit Solomon's rights under such retirement or other employee
benefit plans.
4. The parties agree that Solomon's employment with the Company may be
terminated prior to the Resignation Date as set forth below:
2
(a) Notwithstanding any other provision contained in this
Agreement, the parties agree that Solomon's employment automatically will
terminate in the event of Solomon's death.
(b) In the event Solomon becomes mentally or physically disabled,
Solomon's employment will terminate as of the date such disability is
established. As used in this Agreement, the term "disabled" means suffering from
any mental or physical condition, other than the abuse of intoxicating beverages
or illegal use of narcotics, which renders Solomon unable to perform
substantially all of his duties and responsibilities in a satisfactory manner
(an "impaired condition") for a period of ninety (90) consecutive days. The date
that Solomon's disability is established will be the ninety-first (91) day on
which the impaired condition exists.
(c) The Company may terminate Solomon's employment for good cause
without notice to Solomon. For purposes of this Agreement, "good cause" means:
(i) any felony conviction;
(ii) abuse of intoxicating beverages or illegal use of
narcotics (following at least one written warning);
(iii) an act or acts of personal dishonesty at the expense
of the Company;
(iv) the willful misconduct or gross negligence of Solomon
in connection with the performance of his duties, responsibilities,
agreements,
3
and covenants hereunder, where such misconduct or gross negligence
continues for a period of thirty (30) days after written notice to
Solomon specifying the details of such misconduct or gross negligence;
(v) failure to fulfill or perform any of the duties and
responsibilities assigned to Solomon, where such failure continues for
a period of thirty (30) days after written notice to Solomon
specifying the details of such failure to fulfill or perform such
duties and responsibilities; and
(vi) willful conduct that is illegal and is materially and
demonstrably injurious to the Company.
(d) Notwithstanding the provisions of subparagraph 4(c) above, the
Company may terminate Solomon's employment for any reason, whether or not such
reason constitutes good cause, so long as the Company complies with the
provisions of paragraph 8 below.
(e) Solomon may terminate his employment with the Company for any
reason upon thirty (30) days written notice to the Company.
5. The parties agree that, should Solomon's employment with the
Company be terminated by reason of Solomon's death as set forth in subparagraph
4(a) above, his wife, Xxx X. Xxxxxxx, or if she is not longer living, then his
estate, shall be entitled to receive any salary earned prior to such termination
and a pro rata amount of any bonus
4
earned prior to such termination based upon Solomon's progress toward
achievement of the milestones set forth in the bonus plan or program. In
addition, Xxx X. Xxxxxxx, or if she is no longer living, then Solomon's estate,
shall be eligible to receive the payments and benefits set forth in paragraph 10
below. However, the Company shall have no obligation to provide those payments
or benefits to Xxx X. Xxxxxxx or Xxxxxxx'x estate until Xxx X. Xxxxxxx or a
representative of Solomon's estate executes a general release of claims in a
form acceptable to the Company and until any required rescission and revocation
periods have passed without Xxx X. Xxxxxxx or a representative of Solomon's
estate exercising her or his rescission and revocation rights.
6. The parties agree that, should Solomon's employment with the
Company be terminated by reason of Solomon's disability as set forth in
subparagraph 4(b) above, Solomon shall be entitled to receive any salary earned
prior to such termination and a pro rata amount of any bonus earned prior to
such termination based upon Solomon's progress toward achievement of the
milestones set forth in the bonus plan or program. In addition, Solomon shall be
eligible to receive the payments and benefits set forth in paragraph 10 below.
However, the Company shall have no obligation to provide those payments and
benefits to Solomon until after Solomon has executed the General Release
attached hereto as Exhibit A and until after the rescission and revocation
periods contained in paragraph 2 of the General Release attached hereto as
Exhibit A have passed without Solomon exercising his rescission and revocation
rights. The amount of
5
payments and benefits due under paragraph 10 below shall be reduced by any
payments to which Solomon may be entitled for the same period because of
disability under any disability or pension plan or program of the Company or as
a result of any workers' compensation or non-occupational disability payments
received by Solomon from any governmental entity. Notwithstanding any such
termination, the provisions of this Agreement setting forth restrictions on
Solomon's conduct after the termination of Solomon's employment including, but
not limited to, the provisions set forth in paragraph 11 of this Agreement,
shall remain in full force and effect.
7. The parties agree that, should Solomon's employment with the
Company be terminated for good cause as set forth in subparagraph 4(c) above, no
further payments or benefits shall be required to be paid or provided by the
Company to Solomon under paragraph 10 below or any other provision of this
Agreement except for Solomon's salary earned prior to such termination.
Notwithstanding any such termination, the provisions of this Agreement setting
forth restrictions on Solomon's conduct after the termination of Solomon's
employment including, but not limited to, the provisions set forth in paragraph
11 of this Agreement, shall remain in full force and effect.
8. The parties agree that, should Solomon's employment with the
Company be terminated without good cause as set forth in subparagraph 4(d)
above, Solomon shall be entitled to receive any salary earned prior to such
termination and a pro rata amount of
6
any bonus earned prior to such termination based upon Solomon's progress toward
achievement of the milestones set forth in the bonus plan or program. In
addition, Solomon shall be eligible to receive the payments and benefits
provided for in paragraph 10 below. However, the Company shall have no
obligation to provide those payments and benefits to Solomon until after Solomon
has executed the General Release attached hereto as Exhibit A and until after
the rescission and revocation periods contained in paragraph 2 of the General
Release attached hereto as Exhibit A have passed without Solomon exercising his
rescission and revocation rights. Notwithstanding any such termination, the
provisions of this Agreement setting forth restrictions on Solomon's conduct
after the termination of Solomon's employment including, but not limited to, the
provisions set forth in paragraph 11 of this Agreement, shall remain in full
force and effect.
9. The parties agree that, should Solomon's employment with the
Company be terminated by Solomon as set forth in subparagraph 4(e) above, no
further payments or benefits shall be required to be paid or provided by the
Company to Solomon under paragraph 10 below or any other provision of this
Agreement except for Solomon's salary earned prior to such termination.
Notwithstanding any such termination, the provisions of this Agreement setting
forth restrictions on Solomon's conduct after the termination of Solomon's
employment including, but not limited to, the provisions set forth in paragraph
11 of this Agreement, shall remain in full force and effect.
7
10. As consideration for Solomon's promises and obligations under this
Agreement, including, but not limited to, Solomon's agreement to release any and
all claims against the Company as provided in paragraph 12 of this Agreement and
Exhibit A to this Agreement, and the covenants set forth in paragraph 11 of this
Agreement, and subject to the terms hereof, the Company agrees as follows:
(a) The Company, after the Resignation Date, will continue, as
separation pay, Solomon's then current gross salary or Two Hundred Twenty-One
Thousand Three Hundred Twenty-Eight and 00/100 Dollars ($221,328.00), whichever
is greater, less legally required deductions, for a period terminating
twenty-seven (27) months after the Resignation Date. This separation pay will be
paid to Solomon at regular, periodic payroll intervals in accordance with the
payroll practices in effect immediately before Solomon's resignation. For the
first twelve (12) months Solomon is receiving the separation pay provided in
this subparagraph 10(a), the amount of the separation pay shall not be reduced
by any compensation earned by Solomon as a result of any employment by any other
employer and/or consulting work. For the last fifteen (15) months Solomon is
receiving the separation pay provided in this subparagraph 10(a), the amount of
separation pay shall be reduced by any compensation earned by Solomon as a
result of any employment by any other employer and/or consulting work. Solomon
agrees to notify the Company of any such employment and/or consulting work and
to provide the Company with information regarding the compensation received by
8
him for such employment and/or consulting work. As used in this subparagraph,
"compensation" means direct cash compensation in the nature of base salary,
consulting fees, and director fees.
(b) Following the Resignation Date, Solomon may voluntarily elect
to continue group health and dental insurance, in accordance with the Company's
policies for employees, for a period not to exceed eighteen (18) months. If
Solomon so elects to continue group health and dental insurance, the Company
will pay the total cost of such insurance directly to the carrier. However, it
is agreed by the parties that, in the event Solomon becomes employed by any
other employer during the eighteen (18) month period following the Resignation
Date, the Company will not be required to provide Solomon with access to its
group health and dental insurance effective on the first day of the month
following or coinciding with Solomon's commencement of eligibility for
comparable group health and dental insurance with such employer.
In the event Solomon does not become employed by any other employer
during the eighteen (18) month period following the Resignation Date, for the
nine (9) month period following that eighteen (18) month period, the Company
will contribute up to five hundred and ninety-two dollars ($592.00) per month
toward the cost of any health insurance actually purchased by Solomon. Solomon
will provide suitable documentation of any such expenses actually incurred.
9
(c) Solomon has previously executed a promissory note dated August
9, 1994, in the amount of Thirty-Seven Thousand Eight Hundred and 12/100 Dollars
($37,812) in favor of and payable to the Company. The entire principal and
accrued interest balance on this promissory note shall be forgiven on November
2, 2000 or upon written notice given to Xxxxxx & Xxxxxxx LLP, holder of 8,333
shares of the Company's common stock as collateral for the promissory note, of
Solomon's intention to sell those shares, whichever occurs sooner. The provision
of the promissory note relating to semi-annual interest payments and the
provision of the promissory note that the promissory note is due and payable
upon the termination of Solomon's employment are hereby terminated.
(d) The Company has granted to Solomon a stock option of 65,000
shares which will vest on the sixteenth (16th) day after Solomon's execution of
Exhibit A to this Agreement, exercisable at the price set forth in the grant.
(e) The Company agrees that all unvested stock options that have
previously been issued to Solomon shall be fully vested and exercisable on the
sixteenth (16th) day after Solomon's execution of Exhibit A to this Agreement.
(f) The Company will extend the exercise period for all stock
options held by Solomon, including, but not limited to, those provided in
subparagraphs 10(d) and 10(e), for a period ending two (2) years from the
sixteenth (16th) day after Solomon's execution of Exhibit A to this Agreement.
10
(g) The Company will reimburse Solomon for reasonable attorneys'
fees actually incurred by him in connection with the review and negotiation of
this Agreement in an amount not to exceed twenty-five hundred ($2,500.00)
dollars upon submission of appropriate documentation.
(h) The Company agrees that, prior to issuing any future written
announcements regarding Solomon's resignation, the Company will permit Solomon
to review such written announcements.
(i) All other items of remuneration or benefit not specifically
mentioned in subparagraphs 10(a) through 10(h) above, including, but not limited
to, unused or accrued vacation, bonuses, and commissions are included in said
separation pay and benefits, and, other than as set forth in paragraphs 5, 6,
and 8 above, Solomon has no further claim to any other items of remuneration or
benefits following the Resignation Date.
(j) Solomon agrees that he was not entitled to any of the payments
and benefits outlined in subparagraphs 10(a) through 10(h) above absent his
execution of this Agreement.
11. As an essential inducement to the Company to enter into this
Agreement, Solomon agrees as follows:
(a) Solomon executed an Agreement entitled "Employee Agreement"
dated February 22, 1991, a copy of which is attached hereto as Exhibit B and by
this
11
reference incorporated herein. Nothing in this Agreement negates or supersedes
the Employee Agreement, and all provisions of the Employee Agreement which by
their terms survive the termination of Solomon's employment with the Company
continue in full force and effect and are not negated or otherwise affected by
this Agreement.
(b) Upon the Resignation Date, Solomon shall deliver promptly to
the Company all records, manuals, books, forms, documents, letters, memoranda,
notes, notebooks, reports, data, computer files, tables, calculations, or copies
thereof (except as expressly agreed to in a writing signed by Xxxx X. Xxxxxxx on
behalf of the Company), that are the property of the Company or which relate in
any way to the business, products, or practices of the Company, and all other
property, including, but not limited to, all documents or databases which in
whole or in part contain any trade secrets or confidential information of the
Company, which are in Solomon's possession or control.
(c) Solomon covenants and agrees that, for a period of twenty-four
(24) months from the Resignation Date, he shall not, directly or indirectly,
engage in any business activity on his own behalf or as a partner, shareholder
(except by ownership of less than five percent (5%) of the outstanding stock of
a publicly held corporation), director, trustee, principal, agent, officer,
employee, consultant, or otherwise of any person or entity the business of which
is the same as, similar to, or competitive with the Company's glucose monitoring
business or which is engaged in the development or production of products
intended to compete with the Company's glucose monitoring
12
business, or assist, solicit, entice, or induce any other person to engage in
any such activity.
Solomon further agrees that, during the term of such covenant, he
shall not directly or indirectly assist, solicit, entice, or induce (or assist
any other person or entity in soliciting, enticing, or inducing) any customer or
potential customer (or agent, employer, or consultant of any customer or
potential customer) with whom Solomon had contact in the course of his
employment with the Company, to deal with a competitor of the Company.
Solomon further agrees that, during the term of such covenant, he
shall not directly or indirectly in any manner solicit, assist, or encourage (or
assist any other person or entity in soliciting or encouraging) any other
officer or employee of the Company to work or otherwise provide services to
Solomon or for any entity in which Solomon participates in the ownership,
management, operation, or control of, or is connected with in any manner as an
independent contractor, consultant, or otherwise.
Solomon acknowledges that a breach or threatened breach of any portion
of this subparagraph will cause irreparable harm to the Company and that the
Company could not be adequately compensated by money damages. Accordingly,
Solomon specifically agrees that the Company shall be entitled to injunctive
relief to enforce the provisions of this subparagraph and that such relief may
be granted without the necessity of proving actual damages. The Company's rights
with respect to obtaining injunctive
13
relief, however, will not diminish its rights to pursue any other available
remedies for such breach or threatened breach, including the recovery of actual
damages.
12. By this Agreement, Solomon intends to settle any and all claims
that he has or may have against the Company as a result of the Company's hiring
Solomon, Solomon's employment with the Company, or the cessation of Solomon's
employment with the Company, or any act, occurrence, or omission occurring prior
to the date of this Agreement. For the consideration expressed herein, Solomon
hereby releases, acquits, satisfies, and forever discharges the Company, its
predecessors, successors, assigns, parents, affiliates, subsidiaries, and
related companies, their officers, directors, shareholders, agents, servants,
employees, and insurers from all liability for damages and agrees not to
institute any claim for damages, nor authorize any other party, governmental or
otherwise, to seek individual remedies for Solomon via administrative or legal
proceedings. Solomon's release of claims is intended to extend to and include,
among other things, claims of any kind arising under or based upon the Minnesota
Human Rights Act, Minn. Stat. (S)(S) 363.01, et seq.; Title VII of the Civil
Rights Act, 42 U.S.C. (S)(S) 2000e, et seq.; the Age Discrimination in
Employment Act, 29 U.S.C. (S)(S) 621, et seq.; the Employee Retirement Income
Security Act of 1973, 29 U.S.C. (S)(S) 1001, et seq.; the Americans with
Disabilities Act, 42 U.S.C. (S)(S) 12101, et seq.; any other federal, state, or
local law, rule, or regulation prohibiting employment discrimination or
otherwise relating to employment; any claims based upon, among other things,
common
14
law theories of recovery, including, but not limited to, those in contract,
quasi contract, or tort; and any claims based upon any other theory, whether
legal or equitable, arising from or related to any matter or fact arising prior
to the signing of this Agreement, including, but not limited to, any matter or
fact arising out of the events giving rise to this Agreement.
13. Solomon has been informed of his right to revoke this Agreement
insofar as it extends to potential claims under the Age Discrimination in
Employment Act, 29 U.S.C. (S)(S) 621, et seq. by informing the Company of his
intent to revoke this Agreement within seven (7) calendar days after his
execution of this Agreement.
Solomon has been informed of his right to rescind this Agreement
insofar as it extends to potential claims under the Minnesota Human Rights Act,
Minn. Stat. (S)(S) 363.01, et seq., by written notice to the Company within
fifteen (15) calendar days after his execution of this Agreement. Solomon has
been informed and he understands that any such rescission must be in writing and
delivered to the Company in care of Xxxx X. Xxxxxxx, Ph.D., Chairman of the
Board, by hand or mail within the applicable time period. If delivered by mail,
the rescission must be: (i) postmarked within the applicable period; (ii) sent
by certified mail, return receipt requested; and (iii) addressed as follows:
Xxxx X. Xxxxxxx, Ph.D., Chairman of the Board, Integ Incorporated, 0000 Xxxxxx
Xxxx, Xxxxxxxxx, Xxxxxxxxx 00000.
15
Solomon has also been informed that the terms of this Agreement will
be open for acceptance and execution by him for a period of twenty-one (21) days
during which time he may consult with an attorney and consider whether to accept
this Agreement. Changes to this Agreement, whether material or immaterial, will
not restart the running of this twenty-one (21) day acceptance period.
Solomon understands that the Company will have no obligations under
this Agreement in the event a notice a revocation or rescission by Solomon is
timely delivered, and, in the event Solomon revokes or rescinds this Agreement,
Solomon agrees to repay to the Company any payment made to him or benefits
conferred upon him pursuant to this Agreement prior to the date of revocation or
rescission.
14. As a condition precedent to the rights and benefits conferred
under this Agreement, Solomon agrees to execute, on the Resignation Date, the
General Release attached hereto as Exhibit A and by this reference incorporated
herein. The Company shall have no obligations to Solomon under this Agreement
until after Solomon has executed the General Release attached hereto as Exhibit
A, and until after the rescission and revocation periods contained in paragraph
2 of the General Release attached hereto as Exhibit A have passed without
Solomon exercising his rescission and revocation rights. Solomon understands
that the Company will have no obligations under this Agreement in the event a
notice of rescission or revocation by Solomon is timely delivered, and, in the
event Solomon rescinds or revokes the General Release attached
16
hereto as Exhibit A, Solomon agrees to repay to the Company any payments made to
him or benefits conferred upon him pursuant to this Agreement prior to the date
of rescission or revocation.
15. The Company states that it is not currently aware of any claims
which it has or may have against Solomon as a result of any act, occurrence, or
omission occurring prior to the signing of this Agreement. Following the
execution of this Agreement and until the Resignation Date, the Company agrees
to promptly inform Solomon of any claims which it believes it has or may have
against Solomon. If, prior to the Resignation Date, the Company has not provided
Solomon with such notice and so long as the Company is not otherwise aware of
any claims it has or may have against Solomon as of the Resignation Date, the
Company will provide Solomon with a letter in the form attached hereto as
Exhibit C at the same time as Solomon executes the General Release attached
hereto as Exhibit A.
16. If Solomon breaches any material obligation imposed under this
Agreement, including, but not limited to, the covenants set forth in paragraph
11 of this Agreement, the Company shall have the right to terminate this
Agreement and all further obligations the Company has under this Agreement to
Solomon or to others whose rights may derive from him will cease.
17. The Company shall indemnify Solomon to the full extent permitted
by Minnesota law and the Company's by-laws. Solomon shall cooperate fully, and
without
17
further compensation, with the Company in defense of any action, suit, claim, or
proceedings commenced or threatened against him for which he is indemnified by
the Company and in the defense of any action, suit, claim, or proceeding
commenced or threatened against the Company in conjunction with any action suit,
claim, or proceeding commenced or threatened against him. In addition to the
foregoing, Solomon further agrees to provide assertions to the Company as may be
reasonably requested by the Company or its attorneys in connection with the
defense of any action, suit, claim, or proceeding brought against the Company or
any action, suit claim, or proceeding that the Company may initiate.
18. If any dispute arises between the parties with respect to the
application or interpretation of this Agreement (excluding any dispute that
gives the Company the right to seek injunctive relief against Solomon pursuant
to paragraph 11(c) of this Agreement), then such dispute will be submitted to
arbitration for resolution. The arbitrator will be selected and the arbitration
will be conducted pursuant to the then-current National Rules for the Resolution
of Employment Disputes of the American Arbitration Association ("AAA"). Any
request for arbitration must be made in writing by the party seeking arbitration
and must be delivered by hand or sent by registered or certified mail, return
receipt requested, first class postage prepaid, to both the other party and the
AAA, within 90 days after the date on which the dispute between the parties
first arose. The decision
18
of the arbitrator regarding any such dispute will be final and binding on both
parties, and any court of competent jurisdiction may enter judgment upon the
award.
19. This Agreement, including the attached Exhibits A, B, and C
contains the entire understanding between the parties with respect to the
subject matter of this Agreement. This Agreement terminates, replaces, and
supplants any and all other agreements, whether written or oral, between the
parties relating in any way to the hiring or employment of Solomon by the
Company or the cessation of such employment, including, but not limited to, the
Change in Control Agreement dated May 1, 1996, by and between Solomon and the
Company, but excluding the various stock option agreements between the parties
and employee benefit plans sponsored by the Company in which Solomon is a
participant. However, if prior to the Resignation Date, the Company adopts an
improved change in control agreement applicable to the Company's executive
management team on an across the board basis and the improved change in control
agreement is triggered, and Solomon is otherwise entitled to receive the
payments and benefits provided for in this Agreement, Solomon shall be entitled
to receive, in accordance with the terms of this Agreement, the greater of the
payments and benefits provided for in the improved change in control agreement
or the payments and benefits provided for in paragraph 10 of this Agreement.
However, the Company shall have no obligation to provide payments or benefits
under either the improved change in control agreement or paragraph 10 of this
Agreement until after Solomon has executed the
19
General Release attached hereto as Exhibit A and until after the rescission and
revocation periods contained in paragraph 2 of the General Release attached
hereto as Exhibit A have passed without Solomon exercising his rescission and
revocation rights. Moreover, should Solomon elect to receive the payments and
benefits provided for in the improved change of control agreement rather than
the payments and benefits provided for in paragraph 10 of this Agreement,
Solomon shall still be required to comply with all obligations imposed under
this Agreement including, but not limited to, the covenants set forth in
paragraph 11 of this Agreement.
20. This Agreement may not be modified, altered, or amended except by
an instrument in writing, signed by the parties hereto. No term or condition of
this Agreement shall be deemed to have been waived, nor shall there be any
estoppel against enforcement of any provision of this Agreement, except by
written instrument of the party charged with such waiver or estoppel. No such
written waiver shall be deemed a continuing waiver unless it is specifically
stated therein, and each such waiver shall operate only as to the specific term
or condition waived and shall not constitute a waiver of such term or condition
for the future or as to any act other than that specifically waived.
21. Solomon agrees to keep the terms and existence of this Agreement
(other than the terms of paragraph 11 of this Agreement) confidential and agrees
not to disclose any such information to any person other than his present or
future attorneys,
20
accountants, tax advisors, immediate family, or as may be required in response
to a court order, subpoena, or valid inquiry by a government agency or
regulator. Solomon further agrees that if any information concerning the terms
or existence of this Agreement is revealed as permitted by this paragraph, he
shall inform the recipient of the information that it is confidential.
The Company agrees that it will not disclose the terms or existence of
this Agreement except to Company personnel in the ordinary course and scope of
their duties, to the Company's present and future attorneys, accountants, and
tax advisors, as the Company deems necessary in the course of legal proceedings
or in anticipation of litigation, or as required in response to a court order,
subpoena, or valid inquiry by a government agency or regulator. The Company
further agrees that if any information concerning the terms or existence of this
Agreement is revealed as permitted by this paragraph, it shall inform the
recipient of the information that it is confidential.
22. The validity, interpretation, construction, performance,
enforcement, and remedies of or relating to this Agreement, and the rights and
obligations of the parties hereunder, shall be governed by the laws of the State
of Minnesota.
23. Solomon and the Company agree that this Agreement is not an
admission by the Company of any wrongdoing or of any acts that might be
considered a violation of a federal, state, or local law, rule, or regulation,
with respect to the employment of Solomon or otherwise, and that this Agreement
should not be interpreted as such.
21
24. If any provision of this Agreement is held to be illegal, invalid,
or unenforceable under present or future laws, such provision shall be fully
severable; this Agreement shall be construed and enforced as if such illegal,
invalid, or unenforceable provision had never comprised a part of this
Agreement, and the remaining provisions of this Agreement shall remain in full
force and effect and shall not be affected by the illegal, invalid, or
unenforceable provision or by its severance from this Agreement. Furthermore, in
lieu of such illegal, invalid, or unenforceable provision, there shall be added
automatically as part of this Agreement a provision as similar in terms to such
illegal, invalid, or unenforceable provision as may be possible and be legal,
valid, and enforceable.
25. Solomon may not assign any of his rights, or delegate any of his
duties or obligations under this Agreement. The rights and obligations of the
Company under this Agreement shall inure to the benefit of and be binding upon
the successors (by purchase, merger, consolidation, or otherwise) and assigns of
the Company. In the event Solomon dies before all payments due to him under this
Agreement have been made, then all such payments shall continue to be made to
his wife, Xxx X. Xxxxxxx, or if she is no longer living, then to his estate.
26. Solomon has read this Agreement and agrees to the conditions and
obligations set forth. Further, Solomon agrees that he has had adequate time to
consider the terms of this Agreement, that he is voluntarily entering into this
Agreement with a
22
full understanding of its meaning, and that he has consulted with an attorney
prior to signing this Agreement.
IN WITNESS WHEREOF, Solomon and the Company, acting through its Board
of Directors after due consideration and authorization, have executed this
Agreement by their signatures below.
Dated: 2/2 , 1998 /s/ Xxxxx X. Xxxxxxx
------------- -------------------------
Xxxxx X. Xxxxxxx
Dated: 2/2 , 1998 INTEG INCORPORATED
-------------
By /s/ Xxxx X. Xxxxxxx
-------------------------
Its Chairman
23
EXHIBIT A
GENERAL RELEASE
This General Release is made and entered into as of the _______ day of
_____________, 1998, by and between Integ Incorporated (hereinafter the
"Company") and Xxxxx X. Xxxxxxx (hereinafter "Solomon").
WHEREAS, Solomon and the Company are parties to a Separation Agreement
(hereinafter "Agreement") dated _____________________, 1998;
WHEREAS, Solomon and the Company intend to settle any and all claims
that Solomon may have against the Company as a result of any act, occurrence, or
omission occurring subsequent to the signing of the Agreement and prior to the
signing of this General Release, including, but not limited to, any matter or
fact arising out of the events giving rise to the Agreement or this General
Release;
WHEREAS, under the terms of the Agreement, which Solomon agrees is
fair and reasonable, Solomon agreed to enter into this General Release as a
condition precedent to the separation payments and benefits conferred under the
Agreement;
NOW, THEREFORE, in consideration of the provisions and of the mutual
covenants contained herein, the parties agree as follows:
1. Release. For the consideration expressed in the Agreement, Solomon
intends to settle any and all claims that he has or may have against the Company
as a result of the Company's hiring Solomon, Solomon's employment with the
Company, or the cessation of Solomon's employment with the Company, or any act,
occurrence, or omission occurring subsequent to the signing of the Agreement and
prior to the signing of this General Release, including, but not limited to, any
matter or fact arising out of the events giving rise to the Agreement or this
General Release. For the consideration expressed in the Agreement, Solomon
hereby releases, acquits, satisfies, and forever discharges the Company, its
predecessors, assigns, parents, affiliates, subsidiaries, and related companies
and their officers, directors, shareholders, agents, servants, employees, and
insurers from all liability for damages and agrees not to institute any claim
for damages, nor otherwise authorize any other party, governmental or otherwise,
to seek individual remedies for Solomon via administrative or legal proceedings.
Solomon's release of claims is intended to extend to and include, among other
things, claims of any kind arising under or based upon the Minnesota Human
Rights Act, Minn. Stat. (S)(S) 363.01, et seq.; Title VII of the Civil Rights
Act, 42 U.S.C. (S)(S) 2000e et seq.; the Age Discrimination in Employment Act,
29 U.S.C. (S)(S) 621, et seq.; the Employee Retirement Income Security Act of
1973, 29 U.S.C. (S)(S) 1001, et seq.; the Americans with Disabilities Act, 42
U.S.C. (S)(S) 12101, et seq.; and any other federal, state, or local law, rule,
or
regulation prohibiting employment discrimination or otherwise relating to
employment; any claims based upon, among other things, common law theories of
recovery, including, but not limited to, those in contract, quasi-contract, or
tort; and any claims based upon any other theory, whether legal or equitable,
arising from or related to any matter or fact arising subsequent to the signing
of the Agreement and prior to the signing of this General Release, including,
but not limited to, any matter or fact arising out of the events giving rise to
the Agreement or this General Release.
2. Rescission. Solomon has been informed of his right to revoke this
Agreement insofar as it extends to potential claims under the Age Discrimination
in Employment Act, 29 U.S.C. (S)(S) 621, et seq., by informing the Company of
his intent to revoke this Agreement within seven (7) calendar days after his
execution of this Agreement.
Solomon has been informed of his right to rescind this Agreement
insofar as it extends to potential claims under the Minnesota Human Rights Act,
Minn. Stat. (S)(S) 363.01, et seq., by written notice to the Company within
fifteen (15) calendar days after his execution of this Agreement. Solomon has
been informed and he understands that any such rescission must be in writing and
delivered to the Company in care of Xxxx X. Xxxxxxx, Ph.D., Chairman of the
Board, by hand or mail within the applicable time period. If delivered by mail,
the rescission must be: (i) post marked within the applicable period; (ii) sent
by certified mail, return receipt requested; and (iii) addressed as follows:
Xxxx X. Xxxxxxx, Ph.D., Chairman of the Board, Integ Incorporated, 0000 Xxxxxx
Xxxx, Xxxxxxxxx, Xxxxxxxxx 00000.
Solomon understands that neither Solomon nor the Company will have any
obligations under the Agreement in the event a notice of revocation or
rescission by Solomon is timely delivered, and, in the event Solomon revokes or
rescinds this General Release, Solomon agrees to repay to the Company any
payments made to him or benefits conferred upon him pursuant to the Agreement
prior to the date of rescission.
3. Breach. If Solomon violates any material obligation imposed under
either this General Release or the Agreement, including, but not limited to, the
covenants set forth in paragraph 11 of the Agreement, the Company shall have the
right to terminate the Agreement and all further obligations the Company has or
may have under the Agreement to Solomon or to others whose rights may derive
from him will cease.
4. Binding Agreement. This General Release shall be binding upon, and
inure to the benefit of, Solomon and the Company and their respective successors
and permitted assigns.
2
5. Opportunity to Review. Solomon hereby acknowledges and states that
he has read this General Release and has been advised to consult with an
attorney prior to signing this General Release. Solomon further represents that
this General Release is written in language which is understandable to him, that
he fully appreciates the meaning of its terms, and that he enters into this
General Release freely and voluntarily.
IN WITNESS WHEREOF, Solomon, after due consideration, has authorized,
executed, and delivered this General Release all as of the date first written
above.
---------------------
Xxxxx X. Xxxxxxx
3
EXHIBIT B
EMPLOYEE AGREEMENT
The undersigned employee ("Employee") of InoMet, Inc. (hereafter "Employer")
acknowledges that Employer is a party to a Mutual Consulting Agreement
originally entered into between CorTrak Medical, Inc., Diametrics Medical, Inc.
and InoMet, Inc. providing for a mutual exchange of information between
employees and consultants of the Parties to the Mutual Consulting Agreement.
Employee acknowledges that as part of his or her employment obligations for
Employer, Employee will be providing information, ideas or consulting services
to the other Parties to the Mutual Consulting Agreement unless instructed to the
contrary by Employer.
1. Confidentiality
Employee acknowledges that all information received from Employer or from any of
the Parties to the Mutual Consulting Agreement (including Parties added
subsequent to the effective date of that Agreement) is confidential. Employee
will treat as confidential all such information and agrees not to disclose such
information or use such information without the prior written consent of the
party from whom such information was received. The obligations of
confidentiality shall not apply to any information which was in the public
domain, which was previously known by the Employee (and not subject to any
confidentiality restriction) or which, in the future, becomes part of the public
domain through no fault of the Employee.
2. Assignment
a. The Employee agrees to assign to Employer or its designee any and all
inventions, ideas, designs, works of authorship, copyrights, discoveries and
improvements (collectively "Inventions") (except those expressly excluded in
paragraph 2.b., below), whether sole or joint, patentable or unpatentable, made
or conceived by Employee during the course of any employment with Employer or
made or conceived using the trade secrets or other confidential business
information, equipment, supplies or facilities of Employer or of any signatory
to the Mutual Consulting Agreement. The rights assigned hereunder shall include
all U.S. and foreign patent or design rights or copyrights and Employee agrees
to cooperate (both during the course of employment and thereafter) with Employer
or its designee in applying for or perfecting such rights in the U.S. or any
foreign country.
b. This Agreement shall not apply to any invention for which no equipment,
supplies, facilities or trade secret information of Employer was used and which
was developed entirely on Employee's own time, and (1) which does not relate (a)
directly to the business of Employer or (b) to Employer's actual or demonstrably
anticipated research or development, or (2) which does not result from any work
performed by Employee for Employer.
c. All work product of the Employee (including all notebooks, files and other
tangible products) made, compiled or otherwise produced during the course of
employment as part of work performed by Employee for Employer is the property of
Employer.
d. Employee expressly acknowledges that communications with, development work,
idea exchange and idea and product development with signatories to the Mutual
Consulting Agreement is the business of Employer and is part of the work
required by Employee for Employer. Any invention made or conceived while
providing information sharing or assistance with a signatory to the Mutual
Consulting Agreement is an invention related to the business of Employer and is
part of the work performed by Employee for Employer.
The terms and conditions of this Agreement and the resolution of any disputes
arising out of it shall be governed by and interpreted in accordance with the
laws of the State of Minnesota.
By /s/ Xxxxx X. Xxxxxxx (Employee)
Date 2/22/91
2
EXHIBIT C
Xxxxx Xxxxxxx
-----------------------
-----------------------
Dear Xx. Xxxxxxx:
This is to inform you that, as of the date of this letter, Integ
Incorporated is not currently aware of any claims which it has or may have
against you as a result of any act, occurrence, or omission occurring prior to
the date of this letter.
INTEG INCORPORATED
By__________________________
