SEPARATION AGREEMENT
[ * * * ] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
EXHIBIT
10.22
This Separation Agreement (this “Agreement”) is dated as of April 15, 2008 (the “Effective
Date”), and is entered into by and between Replidyne, Inc. (the “Company”), and Xxxxx Xxxxxxxx
(“Executive” and, together with the Company, the “Parties”).
RECITALS
WHEREAS, Executive has been employed by the Company as Chief Commercial Officer of the Company
pursuant to an Employment Agreement by and between the Company and Executive dated as of April 4,
2006, as amended, June 15, 2007, (the “Employment Agreement”);
WHEREAS, the parties have determined that Executive shall terminate his employment as Chief
Commercial Officer effective April 15, 2008 (the “Separation Date”), and, in connection with such
separation, the Parties have agreed to settle any and all related agreements between the Parties
and their affiliates in the manner set forth herein; and
WHEREAS, except as expressly set forth herein, the Parties intend that this Agreement shall
supersede and replace all other understandings and agreements, whether oral or written regarding
Executive’s employment with the Company, including but not limited, to the Employment Agreement,
NOW THEREFORE, in consideration of the promises and mutual covenants contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which are expressly
acknowledged, the Parties agree and promise as follows:
Section 1. Termination. Effective on the Separation Date, Executive shall terminate his
employment as the Chief Commercial Officer of the Company.
Section 2. Termination Benefits. Pursuant to Section 10(d) of the Employment Agreement,
upon execution of this Agreement and of the release attached hereto as Exhibit B (“Release”),
Executive shall be entitled to receive the following Severance Benefits:
(a) Severance Payment. The Company shall pay to Executive the equivalent of twelve (12)
months of his Base Salary as in effect immediately prior to the Separation Date, payable on the
same basis and at the same time as previously paid and subject to all applicable tax withholdings
and other deductions, commencing on the first regularly scheduled pay date following the Effective
Date of the Release;
(b) Health Insurance. The Company shall pay the premiums of Executive’s group health
insurance COBRA continuation coverage, including coverage for Executive’s eligible dependents, for
a maximum period of twelve (12) months following the Separation Date; provided, however, that (i)
the Company shall pay premiums for Executive’s eligible dependents
only for coverage for which those eligible dependents were enrolled immediately prior to the
Separation Date; and (ii) the Company’s obligation to pay such premiums shall cease immediately
upon Executive’s eligibility for comparable group health insurance provided by a new employer of
Executive.
(c) Outplacement Services. Although the Company is under no obligation to do so, in further
consideration for the promises and agreements contained herein, the Company agrees to pay the cost
for Executive to participate in up to six (6) months of outplacement services with Right Management
Inc. up to a maximum amount of $7,500 if initiated no later than three (3) months following the
Termination Date of the Consulting Agreement.
(d) Accrued Obligations. On the Separation Date, the Company shall pay Executive all earned
but unpaid Base Salary through the Separation Date and reimburse Executive for any reasonable
unreimbursed expenses incurred in accordance with Company policy. Additionally, Executive shall be
entitled to a payment for all accrued but unused vacation that Executive has accrued through the
Separation Date.
Section 6. Consulting Agreement. The Parties agree that immediately following the
Separation Date, the Company will require the use of Executive’s marketing and commercialization
expertise to assist it in the evaluation of potential partnership opportunities. Accordingly,
Executive agrees to enter into a Consulting Agreement with the Company attached hereto as Exhibit
C.
Section 7. Other Compensation and Benefits. Executive acknowledges that, except as
expressly provided in this Agreement, including the Consulting Agreement, he has not earned and
will not receive any additional pay or salary, incentive compensation, severance, equity interests
or options, or benefits after the Separation Date, with the exception of any vested right he may
have under the express terms of a written ERISA-qualified benefit plan (e.g., 401(k) account). In
particular, but without limitation, Executive agrees that he is not owed any bonus, incentive
compensation, or commissions.
Section 8. Return Of Company Property. By the close of business on the Separation Date,
with the exception of the “Retained Property” (described herein), Executive agrees to return to the
Company all Company documents (and all copies thereof, in whole or in part) and other Company
property which Executive has in his possession or control, including, but not limited to, Company
files, notes, drawings, records, plans, forecasts, reports, studies, analyses, proposals,
agreements, engineering information, test data and materials, financial information, research and
development information, sales and marketing information, customer information and databases,
contact information, operational and personnel information, specifications, code, software,
databases, computer-recorded information, tangible property and equipment (including, but not
limited to, computers, facsimile machines, mobile telephones, servers), credit cards, entry cards,
identification badges and keys; and any materials of any kind which contain or embody any
proprietary or confidential information of the Company (and all reproductions thereof in whole or
in part). Executive agrees that he will make a diligent search to locate any such documents,
property and information within the timeframe referenced above. If Executive has used any
personally owned computer, server, or e-mail system to receive, store, review, prepare or transmit
any Company confidential or proprietary data, materials or information, Executive
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agrees to provide the Company with a computer-useable copy of such information and then permanently
delete and expunge such Company confidential or proprietary information from those systems within
five (5) business days after the Separation Date; and Executive agrees to provide the Company
access to Executive’s system as requested to verify that the necessary copying and/or deletion is
done. Except for the Retained Property described herein, Executive agrees that, after the
Separation Date, Executive will neither use nor possess Company property. For purposes of this
Agreement, Retained Property shall mean all documents, files and other information technology
devices provided to Executive by the Company in order to perform the Consulting Duties as set forth
in Exhibit C of this Agreement. At the conclusion of the Consulting Agreement, Executive shall have
the opportunity to purchase such devices at their depreciated fair market value.
Section 9. Confidential Information and Restrictive Covenants. Executive acknowledges that
the confidentiality obligations and restrictive covenants set forth in the Company’s Proprietary
Information and Inventions Agreement, attached to the Employment Agreement and hereto as Exhibit A
shall remain in full force and effect following the Separation Date and Executive further agrees to
comply with the terms of such obligations and restrictive covenants.
Section 8. Release. Notwithstanding anything herein to the contrary, Executive shall not
be entitled to any benefits pursuant to this Agreement prior to the time in which he executes a
full general release of claims against the Company and its affiliates substantially in the form
attached to the Employment Agreement and hereto as Exhibit B.
Section 10. Non-Disparagement. Executive agrees that, except as required by applicable
law, or compelled by process of law, at any time following the date hereof, neither Executive, nor
anyone acting on his behalf, shall hereafter make any derogatory, disparaging or critical statement
about the Company, the Company’s subsidiaries or affiliates, or any of the Company’s current
officers, directors, employees, or shareholders or any persons who were officers, directors,
employees, or shareholders of the Company. The Company agrees that, except as required by
applicable law, or compelled by process of law, neither it, nor anyone acting on its behalf, shall
hereafter make any derogatory, disparaging or critical statement about the Executive.
Section 11. Cooperation by Executive. Following the Separation Date, Executive will
reasonably cooperate in all reasonable respects with the Company and its affiliates in connection
with any and all existing or future litigation, actions or proceedings (whether civil, criminal,
administrative, regulatory, or otherwise) brought by or against the Company or any of its
affiliates, to the extent the Company reasonably deems Executive’s cooperation necessary.
Executive shall be reimbursed for all reasonable out-of-pocket expenses incurred by his as a result
of such cooperation.
Section 12. Indemnification. The Company acknowledges that (a) its by-laws (or those of
one or more of its affiliates) contain provisions indemnifying directors and officers to the
fullest extent permitted by applicable law and (b) Executive is covered by such provisions (as such
provisions are in effect on the Separation Date) to the extent permitted by applicable law even
after the Separation Date with respect to such matters occurring during the course of Executive’s
3
employment before the Separation Date, subject to the terms of such by-law provisions (as such
provisions are in effect on the Separation Date).
Section 13. Confidentiality of Agreement. Executive hereby agrees to keep the terms of
this Agreement confidential; provided, that the obligations of Executive under this Section 13
shall not apply to disclosures required by applicable law, regulation or order of a court or
governmental agency, to Executive’s counsel, or to Executive’s immediate family.
Section 14. Opportunity for Advice. By signing this Agreement, Executive acknowledges that
with the advice of the Company, he has had a reasonable opportunity to consider advice from his
legal counsel. Fully understanding these terms, Executive is entering into this Agreement
knowingly and voluntarily.
Section 15. Entire Agreement. This Agreement, including its Exhibits, represents the
entire agreement of the parties with respect to Executive’s engagement and termination thereof, and
supersedes all prior negotiations, discussions, correspondence, communications, understandings and
agreements between the parties relating to the subject matter of this Agreement, including but not
limited to the Employment Agreement.
Section 16. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF COLORADO APPLICABLE TO CONTRACTS MADE AND TO BE
PERFORMED ENTIRELY WITHIN SUCH STATE.
Section 17. Severability. In the event that any provision or portion of this Agreement
shall be determined to be invalid or unenforceable for any reason, in whole or in part, the
remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force
and effect to the fullest extent permitted by law.
Section 18. Counterparts. This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original and all of which together shall be considered one and the same
agreement.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and year first above
written.
| /s/ Xxxxx Xxxxxxxx | ||||
| Xxxxx Xxxxxxxx | ||||
| REPLIDYNE, INC. | ||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Xxxxxxx X. Xxxxxxx | ||||
| Title: | Chief Executive Officer | |||
5
Exhibit A
MANAGER, EXECUTIVE PERSONNEL OR ASSISTANTS’
PROPRIETARY INFORMATION, INVENTIONS,
NON-COMPETITION, AND NON-SOLICITATION AGREEMENT
PROPRIETARY INFORMATION, INVENTIONS,
NON-COMPETITION, AND NON-SOLICITATION AGREEMENT
This Manager, Executive Personnel or Assistants’ Proprietary Information, Inventions,
Non-competition, and Non-solicitation Agreement (“Agreement”) is made in consideration for my
employment or continued employment by Replidyne, Inc. or its subsidiaries or affiliates (the
“Company”), and the compensation now and hereafter paid to me. I hereby agree as follows:
1. Nondisclosure.
1.1 Recognition of Company’s Rights; Nondisclosure. At all times during my employment and
thereafter, I will hold in strictest confidence and will not disclose, use, lecture upon or publish
any of the Company’s Proprietary Information (defined below), except as such disclosure, use or
publication may be required in connection with my work for the Company, or unless an officer of the
Company expressly authorizes such in writing. I will obtain Company’s written approval before
publishing or submitting for publication any material (written, verbal, or otherwise) that relates
to my work at Company and/or incorporates any Proprietary Information. I hereby assign to the
Company any rights I may have or acquire in such Proprietary Information and recognize that all
Proprietary Information shall be the sole property of the Company and its assigns.
1.2 Proprietary Information. The term “Proprietary Information” shall mean any and all
confidential and/or proprietary knowledge, data or information of the Company. By way of
illustration but not limitation, Proprietary Information includes (a) trade secrets, inventions,
mask works, ideas, processes, formulas, source and object codes, data, programs, other works of
authorship, know-how, improvements, discoveries, developments, designs and techniques (hereinafter
collectively referred to as “Inventions”); and (b) information regarding plans for research,
development, new products, marketing and selling, business plans, budgets and unpublished financial
statements, licenses, prices and costs, suppliers and customers; and (c) information regarding the
skills and compensation of other employees of the Company. Notwithstanding the foregoing, it is
understood that, at all such times, I am free to use information which is generally known in the
trade or industry, which is not gained as result of a breach of this Agreement, and my own, skill,
knowledge, know-how and experience to whatever extent and in whichever way I wish.
1.3 Third Party Information. I understand, in addition, that the Company has received and in the
future will receive from third parties confidential or proprietary information (“Third Party
Information”) subject to a duty on the Company’s part to maintain the confidentiality of such
information and to use it only for certain limited purposes. During the term of my employment and
thereafter, I will hold Third Party Information in the strictest confidence and will not disclose
to anyone (other than Company personnel who need to know such information in connection with their
work for the Company) or use, except in connection with my work for the Company, Third Party
Information unless expressly authorized by an officer of the Company in writing.
1.4 No Improper Use of Information of Prior Employers and Others. During my employment by the
Company I will not improperly use or disclose any confidential information or trade secrets, if
any, of any former employer or any other person to whom I have an obligation of confidentiality,
and I will not bring onto the premises of the Company any unpublished documents or any property
belonging to any former employer or any other person to whom I have an obligation of
confidentiality unless consented to in writing by that former employer or person. I will use in
the performance of my duties only information which is generally known and used by persons with
training and experience comparable to my own, which is common knowledge in the industry or
otherwise legally in the public domain, or which is otherwise provided or developed by the Company.
2. Assignment of Inventions.
2.1 Proprietary Rights. The term “Proprietary Rights” shall mean all trade secret, patent,
copyright, mask work and other intellectual property rights throughout the world.
2.2 Prior Inventions. Inventions, if any, patented or unpatented, which I made prior to the
commencement of my employment with the Company are excluded from the scope of this Agreement. To
preclude any possible uncertainty, I have set forth on Exhibit A (Previous Inventions) attached
hereto a complete list of all Inventions that I have, alone or jointly with others, conceived,
developed or reduced to practice or caused to be conceived, developed or reduced to practice prior
to the commencement of my employment with the Company, that I consider to be my property or the
property of third parties and that I wish to have excluded from the scope of this Agreement
(collectively referred to as “Prior Inventions”). If disclosure of any such Prior Invention would
cause me to violate any prior confidentiality agreement, I understand that I am not to list such
Prior Inventions in Exhibit A but am only to disclose a cursory name for each such invention, a
listing of the party(ies) to whom it belongs and the fact that full disclosure as to such
inventions has not been made for that reason. A space is provided on Exhibit A for such purpose.
If no such disclosure is attached, I represent that there are no Prior Inventions. If, in the
course of my employment with the Company, I incorporate a Prior Invention into a Company product,
process or machine, the Company is hereby granted and shall have a nonexclusive, royalty-free,
irrevocable, perpetual, worldwide license (with rights to sublicense through multiple tiers of
sublicensees) to make, have made, modify, use and sell such Prior Invention. Notwithstanding the
foregoing, I agree that I will not incorporate, or permit to be incorporated, Prior Inventions in
any Company Inventions without the Company’s prior written consent.
2.3 Assignment of Inventions. Subject to Sections 2.4, and 2.6, I hereby assign and agree to
assign in the future (when any such Inventions or Proprietary Rights are first reduced to practice
or first fixed in a tangible medium, as applicable) to the Company all my right, title and interest
in and to any and all Inventions (and all Proprietary Rights with respect thereto) whether or not
patentable or registrable under copyright or similar statutes, made or conceived or reduced to
practice or learned by me, either alone or jointly with others, during the period of my employment
with the Company. Inventions assigned to the Company, or to a third party as directed by the
Company pursuant to this Section 2, are hereinafter referred to as “Company Inventions.”
2.4 Nonassignable Inventions. I recognize that this Agreement will not be deemed to require
assignment of any invention which was developed entirely on my own time without using the Company’s
equipment, supplies, facilities, or trade secrets and neither related to the Company’s actual or
anticipated business, research or development, nor resulted from work performed by me for the
Company (“Nonassignable Inventions”).
2.5 Obligation to Keep Company Informed. During the period of my employment and for six months
after the last day of my employment with the Company, I will promptly disclose to the Company fully
and in writing all Inventions authored, conceived or reduced to practice by me, either alone or
jointly with others. In addition, I will promptly disclose to the Company all patent applications
filed by me or on my behalf within a year after termination of employment. At the time of each
such disclosure, I will advise the Company in writing of any Inventions that I believe are
Nonassignable Inventions and I will at that time provide to the Company in writing all evidence
necessary to substantiate that belief. The Company will keep in confidence and will not use for
any purpose or disclose to third parties without my consent any confidential information disclosed
in writing to the Company pursuant to this Agreement relating to Inventions that have been
identified as Nonassignable Inventions.
2.6 Government or Third Party. I also agree to assign all my right, title and interest in and to
any particular Invention to a third party, including without limitation the United States, as
directed by the Company.
2.7 Works for Hire. I acknowledge that all original works of authorship which are made by me
(solely or jointly with others) within the scope of my employment and which are protectable by
copyright are “works made for hire,” pursuant to United States Copyright Act (17 U.S.C., Section
101).
2.8 Enforcement of Proprietary Rights. I will assist the Company in every proper way to obtain,
and from time to time enforce, United States and foreign Proprietary Rights relating to Company
Inventions in any and all countries. To that end I will execute, verify and deliver such documents
and perform such other acts (including appearances as a witness) as the Company may reasonably
request for use in applying for, obtaining, perfecting, evidencing, sustaining and enforcing such
Proprietary Rights and the assignment thereof. In addition, I will execute, verify and deliver
assignments of such Proprietary Rights to the Company or its designee. My obligation to assist the
Company with respect to
Proprietary Rights relating to such Company Inventions in any and all countries shall continue
beyond the termination of my employment, but the Company shall compensate me at a reasonable rate
after my termination for the time actually spent by me at the Company’s request on such assistance.
In the event the Company is unable for any reason, after reasonable effort, to secure my signature
on any document needed in connection with the actions specified in the preceding paragraph, I
hereby irrevocably designate and appoint the Company and its duly authorized officers and agents as
my agent and attorney in fact, which appointment is coupled with an interest, to act for and in my
behalf to execute, verify and file any such documents and to do all other lawfully permitted acts
to further the purposes of the preceding paragraph with the same legal force and effect as if
executed by me. I hereby waive and quitclaim to the Company any and all claims, of any nature
whatsoever, which I now or may hereafter have for infringement of any Proprietary Rights assigned
hereunder to the Company.
3. No Conflicts or Solicitation. I acknowledge that during my employment I will
have access to and knowledge of Proprietary Information. I also acknowledge that during my
employment with the Company, I have held and/or will hold a management or executive position or am,
or will be, an assistant to a manager or executive. To protect the Company’s Proprietary
Information, I agree that during the period of my employment by the Company I will not, without the
Company’s express written consent, engage in any other employment or business activity directly
related to the business in which the Company is now involved or becomes involved, nor will I engage
in any other activities which conflict with my obligations to the Company. To protect the
Company’s Proprietary Information, and because of the position in the Company that I hold, I agree
that during my employment with the Company whether full-time or part-time and for a period of one
year after my last day of employment with the Company, I will not (a) directly or indirectly
solicit or induce any employee of the Company to terminate or negatively alter his or her
relationship with the Company or (b) directly or indirectly solicit the business of any client or
customer of the Company (other than on behalf of the Company) or (c) directly or indirectly induce
any client, customer, supplier, vendor, consultant or independent contractor of the Company to
terminate or negatively alter his, her or its relationship with the Company. I agree that the
geographic scope of the non-solicitation should include the “Restricted Territory” (as defined
below). If any restriction set forth in this Section is found by any court of competent
jurisdiction to be unenforceable because it extends for too long a period of time or over too great
a range of activities or in too broad a geographic area, it shall be interpreted to extend only
over the maximum period of time, range of activities or geographic area as to which it may be
enforceable.
4. Covenant Not to Compete. I acknowledge that during my employment I will have
access to and knowledge of Proprietary Information. I also acknowledge that during my employment
with the Company, I have held and/or will hold a management or executive position or am, or will
be, an assistant to a manager or executive. To protect the Company’s Proprietary Information, and
because of the position in the Company that I may hold, I agree that during my employment with the
Company whether full-time or part-time and for a period of one year after my last day of employment
with the Company, I will not directly or indirectly personally participate or engage in (whether as
an employee, consultant, proprietor, partner, director or otherwise), or have any ownership
interest in, or participate in the financing, operation, management or control of, any person,
firm, corporation or business that engages in a “Restricted Business” in a “Restricted Territory”
(as defined below). It is agreed that ownership of (i) no more than one percent (1%) of the
outstanding voting stock of a publicly traded corporation, or (ii) any stock I presently own shall
not constitute a violation of this provision.
4.1 Reasonable. I agree and acknowledge that the time limitation on the restrictions in this
paragraph, combined with the geographic scope, is reasonable. I also acknowledge and agree that
this paragraph is reasonably necessary for the protection of Company’s Proprietary Information as
defined in paragraph 1.2 herein, that through my employment I shall receive adequate consideration
for any loss of opportunity associated with the provisions herein, and that these provisions
provide a reasonable way of protecting Company’s business value which will be imparted to me. If
any restriction set forth in this paragraph 4 is found by any court of competent jurisdiction to be
unenforceable because it extends for too long a period of time or over too great a range of
activities or in too broad a geographic area, it shall be interpreted to extend only over the
maximum period of time, range of activities or geographic area as to which it may be enforceable.
4.2 As used herein, the terms:
(i) “Restricted Business” shall mean the design, development, marketing, commercialization or
sales of any anti-infective products, anti-bacterials, or other biopharmaceutical products that
directly compete in the marketplace with any such product then sold by the Company or then in
development by the Company and projected to be sold within one (1) year of my last day of
employment with the Company.
(ii) “Restricted Territory” shall mean any state, county, or locality in the United States in
which the Company conducts business and any other country, city, state, jurisdiction, or territory
in which the Company does business.
5. Records. I agree to keep and maintain adequate and current records (in the
form of notes, sketches, drawings and in any other form that may be required by the Company) of all
Proprietary Information developed by me and all Inventions made by me during the period of my
employment at the Company, which records shall be available to and remain the sole property of the
Company at all times.
6. No Conflicting Obligation. I represent that my performance of all the terms
of this Agreement and as an employee of the Company does not and will not breach any agreement to
keep in confidence information acquired by me in confidence or in trust prior to my employment by
the Company. I have not entered into, and I agree I will not enter into, any agreement either
written or oral in conflict herewith.
7. Return Of Company Materials. When I leave the employ of the Company, I will
deliver to the Company any and all drawings, notes, memoranda, specifications, devices, formulas,
and documents, together with all copies thereof, and any other material containing or disclosing
any Company Inventions, Third Party Information or Proprietary Information of the Company. I
further agree that any property situated on the Company’s premises and owned by the Company,
including disks and other storage media, filing cabinets or other work areas, is subject to
inspection by Company personnel at any time with or without notice.
8. Legal And Equitable Remedies. Because my services are personal and unique and
because I may have access to and become acquainted with the Proprietary Information of the Company,
the Company shall have the right to enforce this Agreement and any of its provisions by injunction,
specific performance or other equitable relief, without bond and without prejudice to any other
rights and remedies that the Company may have for a breach of this Agreement.
9. Notices. Any notices required or permitted hereunder shall be given to the
appropriate party at the address specified below or at such other address as the party shall
specify in writing. Such notice shall be deemed given upon personal delivery to the appropriate
address or if sent by certified or registered mail, three days after the date of mailing.
10. Notification Of New Employer. In the event that I leave the employ of the
Company, I hereby consent to the notification of my new employer of my rights and obligations under
this Agreement.
11. General Provisions.
11.1 Governing Law; Consent to Personal Jurisdiction and Exclusive Forum. This Agreement will be
governed by and construed according to the laws of the State of Colorado without regard to
conflicts of law principles. I hereby expressly understand and consent that my employment is a
transaction of business in the State of Colorado and constitutes the minimum contacts necessary to
make me subject to the personal jurisdiction of the federal courts located in the State of
Colorado, and the state courts located in the County of Boulder County, Colorado, for any lawsuit
filed against me by Company arising from or related to this Agreement. I agree and acknowledge
that any controversy arising out of or relating to this Agreement or the breach thereof, or any
claim or action to enforce this Agreement or portion thereof, or any controversy or claim requiring
interpretation of this Agreement must be brought in a forum located within the State of Colorado.
11.2 Severability. In case any one or more of the provisions contained in this Agreement shall,
for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect the other provisions of this Agreement, and this
Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been
contained herein. If moreover, any one or more of the provisions contained in this Agreement shall
for any reason be held to be excessively broad as to duration, geographical scope, activity or
subject, it shall be construed by limiting and reducing it, so as to be enforceable to the extent
compatible with the applicable law as it shall then appear.
11.3 Successors and Assigns. This Agreement will be binding upon my heirs, executors,
administrators and other legal representatives and will be for the benefit of the Company, its
successors, and its assigns.
11.4 Survival. The provisions of this Agreement shall survive the termination of my employment and
the assignment of this Agreement by the Company to any successor in interest or other assignee.
11.5 No Employment Rights. I agree and understand that my employment is at-will which means I or
the company each have the right to terminate my employment at will, with or without advanced notice
and with or without cause. I further agree and understand that nothing in this Agreement shall
confer any right with respect to continuation of employment by the Company, nor shall it interfere
in any way with my right or the Company’s right to terminate my employment at any time, with or
without cause.
11.6 Waiver. No waiver by the Company of any breach of this Agreement shall be a waiver of any
preceding or succeeding breach. No waiver by the Company of any right under this Agreement shall
be construed as a waiver of any other right. The Company shall not be required to give notice to
enforce strict adherence to all terms of this Agreement.
11.7 Entire Agreement. The obligations pursuant to Sections 1 through 4 and Sections 6 and 7
(including all subparts) of this Agreement shall apply to any time during which I was previously
employed, or am in the future employed, by the Company as a consultant if no other agreement
governs nondisclosure and assignment of inventions during such period. This Agreement is the
final, complete and exclusive agreement of the parties with respect to the subject matter hereof
and supersedes and merges all prior discussions between us. No modification of or amendment to
this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in
writing and signed by the party to be charged. Any subsequent change or changes in my duties,
salary or compensation will not affect the validity or scope of this Agreement
This Agreement shall be effective as of the first day of my employment with the Company,
namely: March 17, 2005.
I have read this Agreement carefully and understand its terms. I have completely filled
out exhibit a to this Agreement.
| Dated: April 4, 2006 | |||
| /s/ Xxxxx Xxxxxxxx | |||
| Signature | |||
| Xxxxx X. Xxxxxxxx | |||
| Printed Name | |||
| Accepted and agreed to: | |||
EXHIBIT B
RELEASE
In exchange for the consideration provided to me by this Agreement that I am not otherwise entitled
to receive, I hereby generally and completely release the Company and its directors, officers,
employees, shareholders, partners, agents, attorneys, predecessors, successors, parent and
subsidiary entities, insurers, affiliates, and assigns from any and all claims, liabilities and
obligations, both known and unknown, that arise out of or are in any way related to events, acts,
conduct, or omissions related to my employment with the Company or the termination of that
employment, including, but not limited to: (1) all claims related to my compensation or benefits
from the Company, including salary, bonuses, commissions, vacation pay, expense reimbursements,
severance pay, fringe benefits, stock, stock options, or any other ownership interests in the
Company; (2) all claims for breach of contract, wrongful termination, and breach of the implied
covenant of good faith and fair dealing; (3) all tort claims, including claims for fraud,
defamation, emotional distress, and discharge in violation of public policy; and (4) all federal,
state, and local statutory claims, including claims for discrimination, harassment, retaliation,
attorneys’ fees, or other claims arising under the federal Civil Rights Act of 1964 (as amended),
the federal Americans with Disabilities Act of 1990, the federal Age Discrimination in Employment
Act of 1967 (as amended) (“ADEA”), and the Colorado state law (as amended).
Notwithstanding the foregoing, nothing contained in this Release is intended to release the
Company from any claim arising out of or with regard to: (i) any payment to be made to me by the
Company in connection the termination of employment as contemplated by the Employment Agreement, or
(ii) any statutory obligation that the Company may have with regard to the continuation of
benefits.
ADEA Waiver and Release. I acknowledge that I am knowingly and voluntarily waiving and releasing
any rights I may have under the ADEA, as amended. I also acknowledge that the consideration given
for the waiver and release in the preceding paragraph hereof is in addition to anything of value to
which I was already entitled. I further acknowledge that I have been advised by this writing, as
required by the ADEA, that: (a) my waiver and release does not apply to any rights or claims that
may arise after the execution date of this Agreement; (b) I have been advised that I have the right
to consult with an attorney prior to executing this Agreement; (c) I have been given twenty-one
(21) days to consider this Agreement; (d) I have seven (7) days following the execution of this
Agreement by the parties to revoke the Agreement; and (e) this Agreement will not be effective
until the date upon which the revocation period has expired, which will be the eighth day after
this Agreement is executed by you, provided that the Company has also executed this Agreement by
that date (“Effective Date”). The parties acknowledge and agree that revocation by you of the ADEA
Waiver and Release is not effective to revoke your waiver or release of any other claims pursuant
to this Agreement.
By: /s/ Xxxxx Xxxxxxxx
|
Date: April 15, 2008 |
7
EXHIBIT C
REPLIDYNE, INC.
CONSULTANT AGREEMENT FOR
Xxxxx Xxxxxxxx
CONSULTANT AGREEMENT FOR
Xxxxx Xxxxxxxx
This Consultant Agreement (“Agreement”) is entered into by and between Xxxxx
Xxxxxxxx, an individual (“Consultant”), and Replidyne, Inc., (the “Company”), effective as of April
16, 2008 (“Effective Date”).
Whereas, the Company is a biopharmaceutical company currently focused on developing
and commercializing innovative anti-infective products, including but not limited to faropenem
medoxomil (collectively, the “Products”);
Whereas, Consultant, having been involved with the Company since 2005 and serving as
the Company’s Chief Commercial Officer, is a significant source of knowledge and expertise about
the Company’s business and its potential clinical development and commercialization strategies for
the Products;
Whereas, the parties have agreed that Consultant shall be retained as a Consultant to
allow the Company to retain the benefit of Consultant’s knowledge and expertise; and
Whereas, the Company terminated Consultant’s full time employment with the Company
effective April 15, 2008 pursuant to a Separation Agreement with an Effective Date of April 15,
2008 and the parties hereby desire to mutually agree upon the terms and conditions of Consultant’s
consulting relationship with the Company.
Now, Therefore, in consideration of the mutual promises and covenants contained
herein, it is agreed by and between the parties as follows:
1. Consulting Relationship.
1.1 Consulting Services. As part of the services provided by Consultant to the Company
pursuant to this Agreement, Consultant will:
(a) Advise and consult with the Company on strategic planning and partnership opportunities
related to the Products; and
(b) Participate in discussions and negotiations with potential partnership prospects;
(c) Perform such other services that relate to Consultant’s areas of expertise and which the
Company’s executive officers believe would be beneficial to the Company (collectively, the
“Consulting Services”).
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1.2 Performance. As and when requested from time to time by the Company’s President and Chief
Executive Officer, Xxxxxxx Xxxxxxx or his delegates, Consultant agrees to provide services to the
Company under this Agreement. The time commitment required for Consulting Services under this
Agreement will generally not exceed 40 hours per month from April 16, 2008 until July 31, 2008
(“Initial Consulting Period”) and will generally not exceed 20 hours per month from August 1, 2008
until December 31, 2008 or at such earlier or later date as agreed to by the Company and Consultant
pursuant to Section 6.1 herein (“Termination Date”), although the time commitment required during
any specific monthly period may vary from the time commitment required in other periods.
Consultant will render the Consulting Services to the best of his ability. The manner and means by
which Consultant chooses to perform the Consulting Services are in Consultant’s sole discretion and
control. Consultant agrees to exercise the highest degree of professionalism, and to utilize his
best efforts, skills, expertise and creative talents in performing such Consulting Services. In
performing Consulting Services, Consultant agrees to provide his own equipment, tools and other
materials in addition to the Retained Property provided to him by the Company. Consultant shall
perform his Consulting Services in a timely and professional manner consistent with industry
standards. Consultant agrees to provide the Consulting Services at the times reasonably requested
by the Company; provided that, the Company will reasonably cooperate with Consultant in the event
that he has conflicts in connection with other obligations, whether such obligations are work
related or personal. Consultant may not subcontract or otherwise delegate his obligations under
this Agreement without the Company’s prior written consent.
2. Compensation.
2.1 Consulting Fees. In consideration of his agreement to provide the Consulting Services
hereunder, during the Initial Consulting Period, Consultant will be paid an amount equal to $10,000
for each full month of Consulting Services rendered to the Company during the Initial Consulting
Period. Consulting Fees shall be pro rated for any partial months of work during the Initial
Consulting Period. From the end of the Initial Consulting Period through the Termination Date, and
for any hours in excess of forty hours per month during the Initial Consulting Period, Consultant
will be compensated at a rate of $300 per hour. Consultant agrees to submit a monthly invoice to
the Company for approval detailing all consulting hours worked in the prior month.
2.2 Stock Options. As further consideration of his agreement to provide Consulting Services
hereunder, subject to the approval of the Company’s Compensation Committee, the Company will
provide Consultant with a non-qualified stock option grant to purchase up to 40,000 shares of
Company common stock at the fair market value of the stock as of the date of grant pursuant to the
Company’s 2006 Equity Incentive Plan (“Consulting Option”). The Consulting Option shall vest over
the course of the Consulting Agreement in eight (8) equal monthly installments and shall have an
exercise period of up to three (3) years from Termination Date of this Consulting Agreement. The
stock options previously granted to Consultant during his employment with the Company shall
continue to vest for so long as Consultant continues to provide Continuous Service to the Company
as defined in the Company’s 2006 Equity Incentive Plan. Consultant understands and acknowledges
that on July 15, 2008, all options previously granted to Consultant shall become NonQualified
Options. Consultant is advised to seek
9
independent tax or accounting advice with regard to the exercise and tax treatment of any
vested options.
2.3 Partnering Bonus. In the event that prior to the Termination Date, the Company concludes
a faropenem partnership with [ * * * ], Consultant will be eligible to receive a one time lump sum
Partnering Bonus equal to $250,000, provided that Consultant is actively providing Consulting
Services through the date of the execution of the partnering agreement with [ * * * ].
2.4 Expenses. Consultant shall receive, against presentation of proper receipts and vouchers,
reimbursement for direct and reasonable out-of-pocket expenses incurred by him in connection with
the performance of services hereunder, according to the policies of the Company.
3. Independent Contractor Status.
Consultant’s relationship with the Company will be that of an independent contractor and
nothing in this Agreement should be construed to create a partnership, joint venture, or
employer-employee relationship. Consultant is not the agent of the Company and is not authorized
to make any representation, contract, or commitment on behalf of the Company. Consultant will not
be entitled to any of the benefits that the Company may make available to its employees. Because
Consultant is an independent contractor, the Company will not withhold or make payments for income
taxes; social security; make unemployment insurance or disability insurance contributions; or
obtain workers’ compensation insurance on Consultant’s behalf with respect to any payment made
pursuant to this Agreement. Consultant agrees to accept exclusive liability for complying with
applicable state and federal laws governing self-employed individuals, including obligations such
as payment of taxes, social security, disability and other contributions based on compensation paid
to Consultant. Consultant hereby agrees to indemnify and defend the Company against any and all
claims for such taxes or contributions, including penalties and interest due with respect to all
payments under this Agreement.
4. Proprietary Information Obligations. Consultant understand and agrees that the terms
of his Proprietary Information Agreement, attached as Exhibit A to the Separation Agreement of even
date, remain in full force and effect during the term of this Consulting Agreement and are fully
incorporated herein by reference.
5. Other Activities.
5.1 Other Services. Consultant is free to enter any contract to provide services to other
business entities, except any contract that would tend to induce Consultant to violate this
Agreement. Further, during the term of this Agreement, Consultant will not, without the prior
written consent of the Company, perform any services related to the development, preparation,
manufacture, marketing or sale of any drugs or therapeutics that may reasonably be considered to
compete with any Products, whether on behalf of his own interest or that of any other person or
entity.
10
6. Term; Termination.
6.1 Term. Unless sooner terminated in accordance with this Section 6 or mutually extended,
the term of this Agreement shall commence on the Effective Date and shall terminate on December 31,
2008. Notwithstanding the foregoing, this Agreement shall automatically terminate immediately upon
(i) Just Cause (as defined below) or (ii) consummation of a Change in Control.
6.2 Termination for Just Cause. The Company may terminate this Agreement immediately in its
sole discretion for Just Cause. In the event the Company terminates this Agreement pursuant to
this Section 6.2, the Company shall be entitled to cease any further payments under the terms of
this Consulting Agreement and shall reimburse Consultant for any business expenses that were
incurred but not reimbursed as of the date of termination. As used in this Agreement, “Just Cause”
shall mean the occurrence of one or more of the following: (i) Consultant’s conviction of a felony
or a crime involving moral turpitude or dishonesty; (ii) Consultant’s participation in a fraud or
act of dishonesty against the Company; (iii) Consultant’s intentional and material damage to the
Company’s property; (iv) Consultant’s material breach of any provision of this Agreement that is
not remedied by Consultant within fourteen (14) days of written notice of such breach from the
Board of Directors; (v) Consultant’s failure to perform the Consulting Services in accordance with
Section 1.2 hereof at the times reasonably requested by the Company; or (vi) Consultant’s failure
to execute the Separation Agreement, including Exhibit B, within twenty-one (21) days of receipt of
the Separation Agreement.
6.3 Termination by Consultant. Consultant may terminate this Agreement at his convenience upon
ten (10) days prior written notice to the Company. In the event the Consultant terminates this
Agreement pursuant to this Section 6.3, the Company shall be entitled to cease any further payments
under the terms of this Consulting Agreement and shall reimburse Consultant for any business
expenses that were incurred but not reimbursed as of the date of termination
6.4 Change in Control. In the event that the Company consummates a Change in Control (as
defined in the 2006 Equity Incentive Plan) prior to the Termination Date of this Agreement, then,
notwithstanding anything contained in Consultant’s stock option agreements or the Company’s 2006
Equity Incentive Plan to the contrary, the vesting of all of Consultant’s then outstanding stock
options shall be accelerated in full and such options shall become fully vested and exercisable in
accordance with the Company’s 2006 Equity Incentive Plan.
6.5 Return of Company Property. Upon termination of the Agreement or earlier as requested by
the Company, Consultant will deliver to the Company any and all drawings, notes, photographs,
memoranda, specifications, samples, formulas, and documents, together with all copies thereof, and
any other material containing or disclosing any Company Work Product or Proprietary Information of
the Company. Consultant further agrees that any property situated on the Company’s premises and
owned by the Company, including work and storage areas or filing cabinets, is subject to inspection
by Company personnel at any time with or without notice.
11
7. General Provisions.
7.1 Notices. Any notices provided hereunder must be in writing and will be deemed effective
upon the earlier of personal delivery (including personal delivery by facsimile), the third day
after mailing by first class mail, or the day following delivery by overnight courier, to the
Company at its primary office location and to Consultant at his address and facsimile number as
provided by Consultant to the Company in writing.
7.2 Severability. Whenever possible, each provision of this Agreement will be interpreted in
such manner as to be effective and valid under applicable law, but if any provision of this
Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law
or rule in any jurisdiction, such invalidity, illegality or unenforceability will not affect any
other provision or any other jurisdiction, but this Agreement will be reformed, construed and
enforced in such jurisdiction to the extent possible in conformance with the intent of the parties
expressed herein.
7.3 Waiver. If either party should waive any breach of any provisions of this Agreement, he
or it will not thereby be deemed to have waived any preceding or succeeding breach of the same or
any other provision of this Agreement.
7.4 Complete Agreement. This Agreement constitutes the complete, final, and exclusive
embodiment of the entire agreement between Consultant and the Company with regard to the subject
matter contained herein. It is entered into without reliance on any promise or representation, and
it cannot be modified or amended except in a writing signed by an officer of the Company and
Consultant. Each party has carefully read this Agreement, has been afforded the opportunity to be
advised of its meaning and consequences by his or its respective attorneys, and signed the same of
his or its own free will.
7.5 Counterparts. This Agreement may be executed in two counterparts, each of which need not
contain signatures of more than one party, but all of which taken together will constitute one and
the same Agreement.
7.6 Headings. The headings of the sections hereof are inserted for convenience only and will
not be deemed to constitute a part hereof nor to affect the meaning thereof.
7.7 Successors and Assigns. This Agreement is intended to bind and inure to the benefit of
and be enforceable by Consultant and the Company, and their respective successors, assigns, heirs,
executors and administrators, except that Consultant may not assign any of his duties hereunder and
he may not assign any of his rights hereunder without the written consent of the Company, which
will not be withheld unreasonably.
7.8 Attorney Fees. If either party brings any action to enforce his or its rights hereunder,
the prevailing party in any such action will be entitled to recover his or its reasonable attorneys
fees and costs incurred in connection with such action.
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7.9 Choice of Law. All questions concerning the construction, validity and interpretation of
this Agreement will be governed by the law of the State of Colorado.
| Xxxxx Xxxxxxxx, | Replidyne, Inc. | |||||
an Individual |
||||||
Sign:
|
/s/ Xxxxx Xxxxxxxx | By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Xxxxxxx X. Xxxxxxx | ||||||
| President & Chief Executive Officer | ||||||
Date:
April 15, 2008 |
||||||
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