SETTLEMENT AGREEMENT AND GENERAL RELEASE
Exhibit 10.1
SETTLEMENT AGREEMENT AND GENERAL RELEASE
XXXXX XXXXXX (hereinafter “XXXXXX” or “Employee”) and THE SPECTRANETICS CORPORATION
(hereinafter “the Company”) (hereinafter collectively referred to as “the Parties”) voluntarily
agree to completely settle and resolve all claims XXXXXX may have against the Company as of the
time XXXXXX executes this Settlement Agreement and General Release, in accordance with the terms of
this Settlement Agreement and General Release, including, but not limited to, all issues related to
or arising out of XXXXXX’X employment with the Company and the cessation of XXXXXX’X employment
with the Company, as follows:
WHEREAS, the Parties want to avoid litigation, costs, legal fees and inconvenience;
NOW, THEREFORE, for and in consideration of the provisions, covenants and mutual promises
contained herein, the Parties hereby agree as follows:
1. Payment Terms. The Company shall pay XXXXXX the amounts set forth below within
seven (7) days after the expiration of the seven (7) day revocation period described in Paragraph
12 below, and after receipt by the Company’s counsel of an original of this Settlement Agreement
and General Release executed and dated by XXXXXX. The payment (“Settlement Payment”) shall be made
in the following manner:
a. The Company will pay and cause to be delivered to XXXXXX a check made payable to XXXXXX as
severance pay in the gross amount of One Hundred Ten Thousand Four Hundred Eleven Dollars and
No Cents ($110,411.00), less required payroll deductions. An IRS Form W-2 will be issued to
XXXXXX by the Company.
b. If XXXXXX elects COBRA coverage, the Company agrees to reimburse XXXXXX up to Nine
Thousand Two Hundred Thirteen Dollars and Twelve Cents ($9,213.12) to assist in covering the
cost of the COBRA coverage. The Company will reimburse XXXXXX after receiving receipts
showing payment made for contributions to his health care coverage by XXXXXX. To be
reimbursable, receipts must be presented by XXXXXX to the Company within 30 days of when the
cost was incurred by him.
c. In addition to the foregoing payment, the Company will pay XXXXXX the sum of Thirty
Thousand Dollars and No Cents ($30,000.00) as non-wage consideration for XXXXXX’X separate
commitments set forth in paragraph 4 below. This amount may be paid, at the Company’s
option, either by separate check made payable to XXXXXX or as an addition to the amount
listed above, and the Company will issue an IRS Form 1099 reflecting this amount.
x. XXXXXX acknowledges that in this Settlement Agreement and General Release, he is receiving
more money, compensation and benefits than he would otherwise be entitled to receive from the
Company.
2. Release.
a. To the greatest extent permitted by law, XXXXXX agrees to release the Company regarding
all claims he has or might have as of the time of execution of this Settlement Agreement and
General Release, whether known or unknown. By way of explanation, but not limiting its
completeness, XXXXXX, hereby fully, finally and unconditionally releases, compromises,
waives and forever discharges the Company from and for any and all claims, liabilities,
suits, discrimination or other charges, personal injuries, demands, debts, liens, damages,
costs, grievances, injuries, actions or rights of action of any nature whatsoever, known or
unknown, liquidated or unliquidated, absolute or contingent, in law or in equity, which was
or could have been filed with any federal, state, local or private court, agency, arbitrator
or any other entity, based directly or indirectly upon XXXXXX’X employment with the Company,
the cessation of his employment, and any alleged act or omission to act by the Released
Parties, whether related or unrelated to his employment, occurring and/or accruing prior to
the execution, by XXXXXX, of this Settlement Agreement and General Release. XXXXXX further
waives any right to any form of recovery, compensation or other remedy in any action brought
by him or on his behalf.
b. Without limiting the foregoing terms, this Settlement Agreement and General Release
specifically includes all claims of XXXXXX. The release includes any tort, and any and all
claims XXXXXX may have arising from any federal, state or local constitution, statute,
regulation, rule, ordinance, order, public policy, contract or common law, and all claims
under the Age Discrimination in Employment Act.
c. This Settlement Agreement and General Release includes and extinguishes all claims XXXXXX
may have for equitable and legal relief, attorneys’ fees and costs. More particularly,
XXXXXX acknowledges that this Settlement Agreement and General Release is intended to be a
resolution of disputed claims and that XXXXXX is not a “prevailing party.” Moreover, XXXXXX
specifically intends and agrees that this Agreement and Release fully contemplates claims
for attorney’s fees and costs, and hereby waives, compromises, releases and discharges any
such claims and liens.
x. XXXXXX agrees that this release includes all claims and potential claims against the
Company and any affiliated companies, including their parents, subsidiaries, divisions,
partners, joint ventures, sister corporations, and as intended third-party beneficiaries,
their predecessors, successors, heirs and assigns, and their past, present and future
owners, directors, officers, members, agents, attorneys, representatives, trustees,
administrators, fiduciaries and insurers, jointly and severally, in their individual,
fiduciary and corporate capacities (collectively referred to as the “Released Parties”).
x. XXXXXX promises and covenants that he will not file any lawsuit against the Released
Parties based upon any claim covered under the foregoing release, except that XXXXXX is not
prohibited from bringing any claim under the Age Discrimination in Employment Act, as
amended, wherein XXXXXX seeks to challenge whether he knowingly and voluntarily entered into
this Settlement Agreement and General Release.
f. Nothing in this release restricts XXXXXX’X right to enforce this Settlement Agreement and
General Release and the promises set forth herein.
x. XXXXXX acknowledges that he has (or prior to expiration of the revocation period in
paragraph 12 he has) received all compensation due him, including base pay, commissions,
reimbursement of expenses, vacation pay, other PTO, or the like.
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3. Nonassignment. XXXXXX expressly promises the Company that he has not assigned or
transferred, or purported to assign or transfer, and will not assign or otherwise transfer: (a) any
claims, or portions of claims, against the Released Parties (as defined in Paragraph 2); (b) any
rights that he has or may have had to assert claims on his behalf or on behalf of others against
the Released Parties; and (c) any right he has or may have to the Settlement Payment. XXXXXX
promises that any monies, benefits or other consideration he receives from the Company are not
subject to any liens, garnishments, mortgages or other charges, and no one else has any claim to
any portion of the Settlement Payment.
4. Non-Compete/Non-Solicitation of Employees. For good and valuable consideration, as
set forth in paragraph 1(c) above, the receipt and sufficiency of which is hereby acknowledged, and
intending to be legally bound thereby, XXXXXX agrees that for a period of two years following his
separation from employment from the Company, he will not, directly or indirectly, accept employment
or fees or compensation, of any kind, as an employee, contractor, consultant or otherwise, with the
following companies, their parents, affiliates, subsidiaries, divisions, partners, joint ventures
or sister corporations: Ev3, CSI or Pathway Medical. As soon as XXXXXX becomes aware (whether he
becomes aware on, before, or after his last day of employment) of prospective new employment that
he may wish to take, Employee shall submit to the Company sufficient information concerning
Employee’s prospective new employment so that the Company can determine whether its interests
should be protected by the imposition of post-termination employment restrictions upon Employee.
Employee further agrees that Employee shall provide a copy of this Agreement to any prospective
employer before accepting employment with that entity or individual. Employee acknowledges that
the purpose of this Paragraph is to protect the Company’s Trade Secrets.
XXXXXX further agrees not to recruit, solicit, discuss, encourage, or in any way, directly or
indirectly, participate in discussions or any process which may be reasonably understood to lead to
the solicitation of any then current Spectranetics employee to work for any person, business or
entity with which XXXXXX has an employment or other professional relationship for an eighteen month
period beginning on XXXXXX’X last day of employment with the Company.
5. Confidentiality. XXXXXX agrees that neither he nor his agents will disclose
anything relating to his employment, or his separation from employment, except to his attorneys,
tax advisors and immediate family, and those such persons shall be told that the information must
be kept confidential. XXXXXX represents further that in negotiating the terms of this potential
agreement, XXXXXX has not already disclosed the proposed terms to any third-parties.
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6. Non Disparagement. Generally, Spectranetics will respond to inquiries concerning
XXXXXX that come from private entities or individuals by providing only the following information:
dates of hire and separation, position history, and salary. The Parties also generally agree that
neither will provide private entities or individuals with any negative information concerning the
other party. Both parties, however, reserve the right, to provide all truthful information to any
properly inquiring governmental body (including the Colorado Department of Labor and Unemployment)
or to a private party under compulsion of a subpoena or other order of a court or tribunal of
competent jurisdiction.
7. Indemnification. XXXXXX agrees to indemnify and hold each of the Released Parties
harmless from and against any and all loss, cost, damage or expense, including, without limitation,
attorneys’ fees, incurred by the Released Parties, or any of them, arising out of any breach of
this Settlement Agreement and General Release by XXXXXX, the fact that any representation made
herein by XXXXXX was false when made, or the Company’s successful enforcement of this Settlement
Agreement and General Release against XXXXXX, except that this paragraph shall not apply to a
lawsuit challenging the validity of
this Settlement Agreement and General Release under the Age Discrimination in Employment Act,
as amended.
8. Neutral Construction. The language of all parts of this Settlement Agreement and
General Release shall in all cases be construed as a whole, according to its fair meaning, and not
strictly for or against any of the Parties, regardless of who drafted the Agreement.
9. Complete Agreement. This Settlement Agreement and General Release sets forth all
of the terms and conditions of the agreement between the Parties concerning the subject matter
hereof and any prior oral communications are superseded by this Settlement Agreement and General
Release. The Parties understand and agree that all of the terms and promises of this Settlement
Agreement and General Release, other than the “Whereas” clauses which are informational, are
contractual and not a mere recital.
10. Effect on Previous Agreements. This Settlement Agreement and General Release
supersedes any and all prior agreements, understandings and communications between the Parties,
except for that certain Confidentiality Agreement entered into the by the parties on or about March
1, 2006, which agreement remains in full force and effect according to its terms, except as
modified by paragraph 4, above.
11. Amendment. This Settlement Agreement and General Release may be amended only by a
written document signed by XXXXXX and an authorized Executive Officer of the Company.
12. Severability. In the event that any of the provisions of this Settlement
Agreement and General Release are found by a judicial or other tribunal to be unenforceable, the
remaining provisions of this Settlement Agreement and General Release will, at the Company’s
discretion, remain enforceable.
13. Nonadmission. This Settlement Agreement and General Release is being entered into
solely for the purpose of resolving any potential claims and shall not be construed as: (a) an
admission by the Released Parties of any (i) liability or wrongdoing to XXXXXX, (ii) breach of any
agreement, or (iii) violation of a statute, law or regulation; or (b) a waiver of any defenses as
to those matters within the scope of this Settlement Agreement and General Release. The Company
specifically denies any liability or wrongdoing, and XXXXXX agrees that he will not state, suggest
or imply the contrary to anyone, either directly or indirectly, whether through counsel or
otherwise.
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14. Time To Consider Agreement. XXXXXX understands that he has been given forty-five
(45) days to consider and sign this Settlement Agreement and General Release (the “consideration
period”), and XXXXXX acknowledges and agrees that this consideration period has been reasonable and
adequate. XXXXXX will have seven (7) days from the date he signs this Settlement Agreement and
General Release to revoke it if he so desires. This Settlement Agreement and General Release shall
not become effective or enforceable until this seven (7) day revocation period has expired, without
revocation, provided the Parties have also continued to meet all of the conditions in this
Settlement Agreement and General Release. If XXXXXX has not communicated his acceptance of this
offer to the Company before the expiration of this consideration period, this offer automatically
expires at that time, and the Company is not required to take any further action to rescind or
otherwise withdraw the terms of this Agreement.
15. Right to Counsel. XXXXXX acknowledges that he was informed that he has the right
to consult with an attorney before signing this Settlement Agreement and General Release and that
this paragraph shall constitute written notice of the right to be advised by legal counsel.
Additionally, XXXXXX acknowledges that he has been advised by competent legal counsel of his own
choosing in connection with the review and execution of this Settlement Agreement and General
Release and that he has had an opportunity to and did negotiate over the terms of this Settlement
Agreement and General Release.
16. XXXXXX Acknowledgment. XXXXXX declares that he has completely read this
Settlement Agreement and General Release and acknowledges that it is written in a manner calculated
to be understood by XXXXXX. XXXXXX fully understands its terms and contents, including the rights
and obligations hereunder, and freely, voluntarily and without coercion enters into this Settlement
Agreement and General Release. Further, XXXXXX agrees and acknowledges that he has had the full
opportunity to investigate all matters pertaining to his claims and that the waiver and release of
all rights or claims he may have under any local, state or federal law is knowing and voluntary.
PLEASE READ CAREFULLY. THIS DOCUMENT INCLUDES
XXXXX XXXXXX’X RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
| THE SPECTRANETICS CORPORATION | ||||||||
/s/ Xxxxx Xxxxxx
|
By: | /s/ Xxxxx Xxxxxxxxxx | ||||||
Vice President |
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Date: August 8, 2008
|
Date: August 8, 2008 | |||||||
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