EXHIBIT 10.55
SEPARATION AGREEMENT AND RELEASE
This Separation Agreement and Release (hereafter the "Agreement")
is made effective as of the eighth (8th) day after this Agreement has been
signed by both parties, by and between BIOJECT MEDICAL TECHNOLOGIES INC.,
BIOJECT MEDICAL SYSTEMS LTD. and BIOJECT INC. (hereafter collectively referred
to as "Bioject") on the one hand, and Xxxxx X. Xxxxxx ("Employee") on the other
hand. The purpose of this Agreement is to set forth the terms of Employee's
voluntary resignation from employment with Bioject. For purposes of this
Agreement, the "parties" refers to Bioject and Employee. Nothing contained in
this Agreement shall constitute an admission of wrongdoing or liability by any
of the parties to this Agreement.
The parties do hereby acknowledge and agree:
1. On March 9, 1998, Employee voluntarily tendered her resignation
to Bioject. Employee's employment with Bioject will end on April 30, 1998.
Bioject agrees to continue providing normal salary and employee benefits to
which Employee would otherwise be entitled including 401(k) matching
contributions through April 30, 1998. Bioject acknowledges and confirms that on
April 30, 1998, Employee will receive all wages and accrued and untaken vacation
pay (known as FTO) earned through April 30, 1998.
The public announcement of Employee's departure from Bioject will
be approved and agreed upon between the parties before publication.
Bioject, including Xxxxx X. X'Xxxx, agrees to provide excellent
references to prospective employers of Employee, upon Employee's request and
authorization to release such information.
2. In addition, for good and due consideration recited herein, the
parties agree to the following:
Bioject will provide Employee the following severance pay and
benefits after the effective date of this Agreement and within the time periods
specified below:
a. On April 30, 1998, a lump sum payment in an amount equal to
4 months of Employee's current salary, less applicable
federal, state and local taxes;
b. Employee's current salary pro-rated for a period of 2 months
to be paid to Employee during the period May and June 1998,
consistent
with Employer's current bi-weekly payment schedule, less
applicable federal, state and local taxes;
c. Bioject will pay Employee's premium payment (102% of the
Employer's contribution) for Employee's health and dental
insurance under COBRA during the period May l, 1998 through
October 31, 1998; and
d. The parties acknowledge that Employee currently has Bioject
common stock and options to purchase Bioject common stock in
the amounts, prices and subject to the conditions set forth
in the statement of Stock and Option Ownership dated
November 24, 1997 (hereafter "Stock and Option Statement"
and attached hereto as Attachment B). The parties further
acknowledge and agree that all of the stock options listed
on Attachment B are currently vested except for the 25,000
options granted on June 11, 1997 (subject to performance
vesting at 3/31/98) and the 25,000 options granted on
September 19, 1997 (subject to one-third vesting on
September 19, 1998, 1999 and 2000). Under Section 5 of the
Employee's Bioject Officer/Insider Stock Option Agreement
(the "Stock Option Agreement") dated September 19, 1997
(attached hereto as Attachment C), Employee's vested 130,000
stock options will expire and terminate one-year after April
30, 1998 (i.e., April 30, 1999).
In consideration for this Agreement, and within thirty (30)
calendar days after its effective date, Bioject will cause
the Stock Option Committee of Bioject Medical Technologies
Inc. ("BMT") to exchange Employee's 130,000 currently vested
stock options as identified in Attachment B for 130,000
vested stock options with an expiration date of April 30,
2000. The exercise price per share of all of the foregoing
options will remain as stated on Attachment B.
In consideration for Employee's cooperation in the
transition to a new chief financial officer (defined to mean
Employee's telephone consultation and assistance, to be
reasonably scheduled in advance, but limited on-site work
effort from May 1, 1998 through September 1, 1998, with
hours not to exceed 40 in the aggregate and 8 hours in any
one week) and within thirty (30) calendar days after the
effective date of this Agreement, Bioject will cause the
Stock Option Committee of BMT to exchange the September 19,
1997, 25,000 unvested options identified in Attachment B for
25,000 stock options which will vest at 5,000 per month
beginning May 1, 1998,
and which will have an exercise date identical to their
vesting date and an expiration date of April 30, 2000.
However, in the event that Employee fails to so cooperate,
any unvested options shall be forfeited. The exercise price
per share of all of the foregoing options will remain as
stated on Attachment B.
In consideration for this Agreement, Employee agrees to
waive and forfeit any right to the June 11, 1997, 25,000
unvested options identified in Attachment B.
An appropriate amendment to the Stock Option Agreement will
be executed by the parties reflecting this change in stock
options. All other obligations of the Employee under the
Stock Option Agreement shall remain enforceable.
Employee acknowledges and agrees that after executing this
Agreement, she will have no Bioject stock options other than
the 130,000 vested options with an expiration date of April
30, 2000 and the 25,000 unvested options which will vest at
5,000 per month beginning May 1, 1998 and expire on April
30, 2000, as described above. The parties acknowledge and
agree that Employee's remaining 25,000 unvested stock
options (granted June 11, 1997) are deemed terminated, as of
the effective date of this Agreement. Employee further
acknowledges and agrees that she is not entitled to any
options in the future beyond the exchanged options stated
herein.
Bioject acknowledges that it has obtained all necessary approvals
and authorizations from Bioject's Boards of Directors and appropriate committees
for the consideration granted Employee in paragraph 2 herein.
3. Employee acknowledges and warrants that by April 30, 1998, she
will have submitted any and all vouchers, bills and receipts verifying all
out-of-pocket business expenses necessarily incurred by Employee during her
employment with Bioject. Bioject agrees to reimburse Employee in a timely manner
for all such out-of-pocket business expenses in accordance with Bioject's
reimbursement policies.
4. The parties acknowledge that BMT is a reporting company within
the requirements of the Securities and Exchange Commission ("SEC"). Employee
expressly agrees to fully comply with all applicable reporting and trading
restrictions in exercising or trading any of the stock options provided herein,
including Section 16(b) of the Securities Exchange Act of 1934.
5. Employee accepts Bioject's undertakings in this Agreement as
full settlement of any and all claims, known or unknown, arising out of, or
related to, Employee's employment with Bioject, or its termination, including,
but not limited to, any claims of discrimination or wrongful discharge. This
includes, but is not limited to, claims under the Age Discrimination in
Employment Act of 1967 ("ADEA"), 29 U.S.C. ss. 621 et seq, the Americans with
Disabilities Act of 1990 ("ADA"), 42 U.S.C. ss. 12101 et seq, Title VII of the
Civil Rights Act of 1964, 42 U.S.C. ss. 1981, and Chapters 652 and 659 of the
Oregon Revised Statutes. These claims are examples, not a complete list, of the
released claims, as it is the parties' intent that Employee release any and all
claims, of whatever kind or nature, in exchange for the severance arrangements
set forth in paragraph 2 above. Employee realizes this constitutes a full and
final settlement of any and all such claims, and except for obligations arising
under this Agreement, this settlement releases Bioject and any related companies
(and their owners, officers, directors, employees, and anyone else against whom
Employee could assert a claim based on her employment or termination thereof)
from any further liability to Employee (or to anyone else Employee has power to
bind in this settlement) in connection with such claims.
In exchange for Employee's agreements and obligations herein,
Bioject, on behalf of themselves and their officers and directors, hereby
releases, acquits, and forever discharges Employee and her past, current and
future agents, assigns, attorneys, representatives and affiliates from any and
all claims, demands, damages, costs, attorney fees, liabilities, claims for
contribution, and claims for indemnity, of every kind and nature, whether known
or unknown, fixed or contingent, including but not limited to, any and all
claims arising out of, or in any way related to, Employee's employment with
Bioject through April 30, 1998.
6. Tender and delivery of the wages, severance pay and benefits as
described in paragraphs 1-2 herein shall constitute full satisfaction by Bioject
of any and all claims by Employee for wages, vacation pay (FTO), severance pay,
and any other compensation, benefits or leave of any kind to which Employee may
be entitled.
7. Employee acknowledges that her obligations under the parties'
Executive Employment Contract dated January 18, 1993 (hereafter "Executive
Employment Contract" and attached hereto as Attachment A) shall continue
following her separation from employment with Bioject. These obligations
specifically include, but are not limited to, the restrictions imposed on
Employee regarding competition with Bioject and involvement with conflicting
organizations, products and services, as fully set forth in section 6.1 of the
Executive Employment Contract, and Employee's obligations with respect to
patents and copyrights, as fully set forth in section 6.2 of the Executive
Employment Contract. These obligations are in addition to any obligations
imposed under federal or state law.
8. Bioject acknowledges that its indemnity obligations under the
parties' Executive Employment Contract (section 6.6) shall survive Employee's
separation from employment with Bioject and continue indefinitely. These
obligations are in addition to obligations imposed by state law, Bioject's
by-laws, and Bioject's directors and officers' and other insurance policies.
9. Employee agrees to keep confidential all confidential or
proprietary information disclosed directly or indirectly by Bioject and agrees
that she will not, directly or indirectly, use, disclose, or divulge for any
purpose such confidential or proprietary information obtained during her
employment with Bioject or at any other time without the prior written approval
of Bioject. Such confidential and proprietary information includes, but is not
limited to, the agenda, decisions or other information relating to meetings or
discussions held by and between Bioject's officers, directors or board of
directors, any and all employment information relating to any past or present
Bioject employees or prospective employees including salaries, severance, and
disciplinary actions, Bioject's product design and development information,
proprietary production processes, research and development strategies,
scientific and technological data, formulae or prototypes, non-public financial
information, business or marketing strategies, customer lists and information
regarding Bioject's past, present, prospective and future customers.
10. The parties agree to keep the terms and conditions of this
Agreement confidential and not disclosed to any individual or entity that is not
a party to this Agreement except as required by law or provided herein. Employee
may disclose the fact and terms of this Agreement to her immediate family
members, attorney, tax advisor, accountant and financial consultant and to
Bioject's internal financial management, outside auditors and legal counsel as
may be required to fulfill Employee's duties as Chief Financial Officer and
agrees to instruct them to make no further disclosures, except as required by
law. Bioject may disclose the fact and terms of this Agreement to its officers,
directors, internal financial management, outside auditors, legal counsel and as
required by law as a publicly traded company.
11. The parties to this Agreement expressly agree to refrain from
making any disparaging, misleading or false remarks concerning each other or any
of the entities or individuals released in paragraph 5 above and will conduct
themselves in a manner that does not damage or undermine the reputation of each
other or any entity or person identified in paragraph 5 above.
12. Employee warrants that upon her departure, she will return to
Bioject all company property in her possession, including documents and all
materials of any nature pertaining to her work with Bioject whether or not they
contain confidential or
proprietary information.
13. Employee expressly waives and will not assert any claim of
right to reinstatement of employment with Bioject or its related entities.
14. The parties acknowledge and agree that any breach of this
Agreement by either party shall subject that party to liability for the actual
and consequential damages resulting from the breach. The non-breaching party
shall also be entitled to all available equitable relief as a result of the
breach, including imposition of an injunction. This provision applies to any
breach of this Agreement.
15. The parties agree that this Agreement shall be construed and
interpreted according to the laws of the State of Oregon (excluding choice of
law provisions). The parties agree that the forum for resolution of any dispute
arising out of or relating to: (1) Employee's employment with Bioject; (2)
Employee's termination of employment with Bioject; or (3) any breach of this
Agreement will be by final and binding arbitration in Multnomah County, Oregon,
utilizing the mediation services of Arbitration Service of Portland, Inc.
("ASP") or other mutually agreed upon arbitration service. The arbitrator shall
have the same authority to award remedies and damages as provided to a judge
and/or jury under applicable law. The arbitrator shall apply Oregon State law
(excluding choice of law provisions) and applicable federal law in deciding all
substantive aspects of the dispute, and all procedural issues not covered by the
ASP arbitration rules. The arbitrator shall not have the power to alter, amend,
or modify any provision of this Agreement. The prevailing party shall be
entitled to recover reasonable attorney fees and other costs of the arbitration
from the other party. Judgment on the award rendered pursuant to such
arbitration may be entered in any court having jurisdiction thereof.
16. The parties agree that this Agreement supersedes any and all
other prior agreements or understandings, both oral and written, except the
Employer's and Employee's obligations under the Agreements attached hereto and
referenced herein. The parties further agree that this Agreement cannot be
modified without the express written consent and agreement of both parties
hereto.
17. The parties agree that the provisions in this Agreement are
separable and that in the event any provision is deemed ineffective or
unenforceable, they are separable from the remaining provisions of the
Agreement, which provisions shall remain binding on the parties.
18. Employee confirms that she has carefully read this Agreement.
Employee acknowledges that she has been advised to consult with an attorney, and
has in fact done so, before signing this Agreement, which Employee has been
given
twenty-one (21) days to consider, and which she may revoke within seven (7) days
after signing. Employee acknowledges that she has signed this Agreement of her
own free will and with the advice of counsel. This offer expires on the 22nd day
after it has been extended to Employee by Bioject.
/S/ Xxxxx X. Xxxxxx 3/9/98
_________________________________ Dated: ____________________
Xxxxx X. Xxxxxx
BIOJECT MEDICAL TECHNOLOGIES INC.
/s/ Xxxxx X. X'Xxxx 3/9/98
__________________________________ Dated: ____________________
By: Xxxxx X. X'Xxxx
Title: Chairman, President and
Chief Executive Officer
BIOJECT MEDICAL SYSTEMS LTD.
/s/ Xxxxx X. X'Xxxx 3/9/98
__________________________________ Dated: ____________________
By: Xxxxx X. X'Xxxx
Title: President
BIOJECT INC.
/s/ Xxxxx X. X'Xxxx 3/9/98
__________________________________ Dated: ____________________
By: Xxxxx X. X'Xxxx
Title: Chairman, President and
Chief Executive Officer
