Exhibit 10.22
Transition Agreement and Mutual Release
This Transition Agreement and Mutual Release ("Agreement") is made by and
between VidaMed, Inc., a Delaware corporation with offices at 00000 Xxxxxxx
Xxxxxxx, Xxxxxxx Xxxxxxxxxx 00000 (the "Company") and Xxxxxxx X. Xxxxxxxxxx
("Xx. Xxxxxxxxxx "), an individual, and is effective seven (7) days after the
date last signed below ("Effective Date").
WHEREAS, Xx. Xxxxxxxxxx was employed by the Company;
WHEREAS, the Company and Xx. Xxxxxxxxxx have entered into an employment
letter agreement dated May 6, 1997 ("Employment Letter Agreement"); and
WHEREAS, the Company and Xx. Xxxxxxxxxx have entered into a Proprietary
Information Agreement, attached hereto and incorporated herein as Exhibit A
containing covenants and acknowledgments of "At Will" employment, confidential
information, invention assignment, and arbitration ("Proprietary Information
Agreement"); and
WHEREAS, the Company and Xx. Xxxxxxxxxx have entered into Stock Option
Agreements on such dates with respect to options to purchase such number of
shares of the Company's Common Stock as stated in Exhibit B, attached hereto and
incorporated herein by reference.
NOW THEREFORE, in consideration of the mutual promises made herein and with
the intent to release each other from any claims arising from or related to the
employment relationship, the Company and Xx. Xxxxxxxxxx (collectively referred
to as "the Parties") hereby agree as follows:
1. Resignation. The Company accepts Xx. Xxxxxxxxxx'x resignation from
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his position as Vice President and Chief Financial Officer as of August 21,
1999 (the "Resignation Date"). Xx. Xxxxxxxxxx'x shall continue as an
employee of the Company through January 3, 2000 (the "Termination Date") as
Vice President of Administration, reporting to the Vice President and Chief
Financial Officer. The duties of this office shall be determined by the
Vice President and Chief Financial Officer or his designee.
2. Consideration for Release. Xx. Xxxxxxxxxx has resigned his position
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with the Company, and the parties acknowledge that the Company has no
obligation to provide any payment in severance to Xx. Xxxxxxxxxx. However,
in consideration of the releases given by Xx. Xxxxxxxxxx, the Company has
agreed:
a) To continue Xx. Xxxxxxxxxx as an officer of the Company in the
capacity of Vice President of Administration at the same salary and
benefit level Xx. Xxxxxxxxxx received in his previous position through
the Termination Date; and
b) To issue to Xx. Xxxxxxxxxx under the terms and conditions stated
herein and in the VidaMed "1999 Nonstatutory Stock Option Plan" (the
"Plan"), the value Sixty Thousand Dollars ($60,000) (hereinafter
called "Plan Value") in registered, fully tradeable common stock of
the Company based upon the closing bid price for VidaMed, Inc common
stock on the Termination Date, to the nearest whole share. The Company
reserves the right to provide, in its sole and absolute discretion, to
pay Xx. Xxxxxxxxxx some or all of the Plan Value offered in cash. The
issuance of the aforementioned stock and / or payment of cash shall
satisfy any obligation the Company has regarding Xx. Xxxxxxxxxx'x
participation in the VidaMed "Performance Improvement Plan" through
the Termination Date.
It is anticipated that Employee shall sell his shares during the week
of January 17, 2000 (hereinafter called "Sales Date"). In the event
the actual selling price of the Company common stock on the Sales Date
returns Employee a value lower than the stated Plan Value, the Company
will pay Employee the difference between the Plan Value and the actual
sales price of the common stock in cash. In the event the actual sales
price of the common stock on the sales date is higher
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than the Plan Value, Employee shall keep any profit gained. Employee
is solely responsible for all taxes and reporting liability for profit
realized from the sale of the common stock. The Company advises
Employee that there are significant risks and tax consequences
associated with holding its common stock obtained under the Plan.
Employee should read the Prospectus and all documents referenced in
the Prospectus and consult his tax adviser before electing to hold any
portion of the issued common stock. THE COMPANY DOES NOT GUARANTEE THE
PRICE OF VIDAMED, INC. COMMON STOCK THAT YOU ELECT TO HOLD FOR
INVESTMENT OR OTHER PURPOSES; and
c) The Company shall make available to Xx. Xxxxxxxxxx Executive-level
Career Transition Services through Interim Career Consulting at
Company expense not to exceed $10,000 ("Not-to-exceed Amount"). Should
Xx. Xxxxxxxxxx wish to continued use of career consulting services
after the Not-to-exceed Amount has been spent, or desire additional
Executive-level Career Transition Services which would cause, in the
aggregate, the total cost to the Company to exceed the above-mentioned
Not-to-exceed Amount, such additional cost shall be at Xx.
Xxxxxxxxxx'x expense.
At the Termination Date Xx. Xxxxxxxxxx shall receive his final paycheck and
the value of any accrued and unused "Paid Time Off" earned up to the Termination
date. All required state and federal withholding shall be deducted from the
above-mentioned consideration as well as from salary and Paid Time Off
compensation.
3. Vesting of Stock. The Parties agree that for purposes of determining
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the number of shares of the Company's common stock that Xx. Xxxxxxxxxx is
entitled to purchase from the Company, Xx. Xxxxxxxxxx will be entitled to
continue vesting of stock until the Termination Date. The exercise of any
stock options shall continue to be subject to the terms and conditions of
the Company's Stock Option Plan and any applicable Stock Option
Agreement(s) between Xx. Xxxxxxxxxx and the Company. A true copy of said
Agreement(s) is attached hereto and incorporated herein by reference.
4. No Benefits After Termination Date. Xx. Xxxxxxxxxx acknowledges and
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agrees and it is the intent of the parties hereto that after the
Termination Date, Xx. Xxxxxxxxxx receive no Company-sponsored benefits from
the Company, either as a consultant or employee. Such benefits include, but
are not limited to, company paid health plans, life insurance and similar
plans, paid vacation, sick leave and 401(k) participation. Xx. Xxxxxxxxxx
may elect to continue coverage by such plans as available from the plan
providers at Xx. Xxxxxxxxxx'x expense, pursuant to applicable law,
including COBRA.
5. Confidential Information; Return of Company Property. Xx. Xxxxxxxxxx
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shall continue to maintain the confidentiality of all confidential and
proprietary information of the Company and shall continue to comply with
the terms and conditions of the Proprietary Information Agreement between
Xx. Xxxxxxxxxx and the Company. Xx. Xxxxxxxxxx agrees to return to the
VidaMed Chief Financial Officer or his designee, by no later than the
Termination Date, all Company property and all Company documents,
including, but not limited to Company confidential and proprietary
information, credit cards, telephone credit cards, unused flight travel and
upgrade coupons, computers, disks or other computer related storage media,
cellular telephones, beepers, customer lists, and the like company
property. Further, Xx. Xxxxxxxxxx agrees not to maintain copies or use any
Company information in any form or for any purpose whatsoever.
6. Payment of Salary. Xx. Xxxxxxxxxx acknowledges and represents that
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the Company has paid all salary, wages, bonuses, and commissions due Xx.
Xxxxxxxxxx as of the Resignation Date of this Agreement, except as provided
in this Agreement.
7. Release of Claims. Xx. Xxxxxxxxxx agrees that the consideration
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described in this Agreement represents settlement in full of all
outstanding obligations owed to Xx. Xxxxxxxxxx by the Company. Xx.
Xxxxxxxxxx on behalf of himself, and his respective heirs, family members
(including domestic partners), executors, heirs and assigns hereby fully
and forever releases VidaMed, Inc., including its officers, directors,
employees, investors, shareholders, administrators, affiliates, divisions,
subsidiaries, predecessor and successor corporations, and assigns, from,
and agrees not to xxx concerning, any claim, duty, obligation or cause of
action relating to any matters of any kind, whether presently known or
unknown, suspected or
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unsuspected, that any of them may possess arising from any omissions, acts
or facts that have occurred up until and including the Effective Date of
this Agreement. Said release includes, but is not limited to:
(a) Any and all claims relating to or arising from Xx. Xxxxxxxxxx'x
employment relationship with the Company and the termination of that
relationship;
(b) Any and all claims relating to, or arising from, Xx. Xxxxxxxxxx'x
right to purchase, or actual purchase of shares of stock of the
Company, including, without limitation. any claims for fraud,
misrepresentation, breach of fiduciary duty, breach of duty under
applicable state corporate law, and securities fraud under any state
or federal law;
(c) Any and all claims for wrongful discharge of employment; termination
in violation of public policy; discrimination; breach of contract,
both express and implied; breach of a covenant of good faith and fair
dealing, both express and implied; promissory estoppel; negligent or
intentional infliction of emotional distress; negligent or intentional
misrepresentation; negligent or intentional interference with contract
or prospective economic advantage; unfair business practices;
defamation; libel; slander; negligence; personal injury; assault;
battery; invasion of privacy; false imprisonment; and conversion;
(d) Any and all claims for violation of any federal, state or municipal
statute, including, but not limited to, Title VII of the Civil Rights
Act of 1964, the Civil Rights Act of 199 1, the Age Discrimination in
Employment Act of 1967, the Americans with Disabilities Act of 1990,
the Fair Labor Standards Act, the Employee Retirement Income Security
Act of 1974, The Worker Adjustment and Retraining Notification Act,
Older Workers Benefit Protection Act; the California Fair Employment
and Housing Act, and Labor Code section 20 1, et seq. and section 970,
et seq.;
(e) Any and all claims for violation of the federal, or any state,
constitution;
(f) Any and all claims arising out of any other laws and regulations
relating to employment or employment discrimination; and
(g) Any and all claims for attorneys' fees and costs.
VidaMed, Inc., on behalf of itself, its officers, directors, employees,
investors, shareholders, administrators, affiliates, divisions, subsidiaries,
predecessor and successor corporations, and assigns, hereby agrees not to xxx
and fully and forever releases and discharges Xx. Xxxxxxxxxx, his heirs,
assigns, agents and attorneys from any and all claims, demands, actions, causes
of action, obligations, costs, expenses, damages, acts or omissions, losses or
liabilities, of whatever kind or nature whatsoever, in law, equity or otherwise,
whether known or unknown, which it may now have or has ever had against Xx.
Xxxxxxxxxx, up to and including the Effective Date of this Agreement.
The Company and Xx. Xxxxxxxxxx agree that the release set forth in this
section shall be and remains in effect in all respects as a complete general
release as to the matters released. This release does not extend to any
obligations incurred under this Agreement or arising after the effective date of
this Agreement.
8. Acknowledgment of Waiver of Claims under ADEA. Xx. Xxxxxxxxxx
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acknowledges that he is waiving and releasing any rights he may have under the
Age Discrimination in Employment Act of 1967 ("ADEA") and that this waiver and
release is knowing and voluntary. Xx. Xxxxxxxxxx and the Company agree that this
waiver and release does not apply to any rights or claims that may arise under
ADEA after the Effective Date of this Agreement. Xx. Xxxxxxxxxx acknowledges
that the consideration given for this waiver and release is in addition to
anything of value to which Xx. Xxxxxxxxxx was already entitled. Xx. Xxxxxxxxxx
further acknowledges that he has been advised by this
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writing that:
(a) He should consult with an attorney prior to executing this Agreement;
(b) He has twenty-one (21) days within which to consider this Agreement;
(c) He least seven (7) days following the execution of this Agreement by
the parties to revoke the Agreement; and
(d) This Agreement shall not be effective until the revocation period has
expired.
13. Civil Code Section 1542. The Parties represent that they are not aware of
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any claim by either of them other than the claims that are released by this
Agreement. Xx. Xxxxxxxxxx and the Company acknowledge that legal counsel
has advised them and are familiar with the provisions of California Civil
Code Section 1542, which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
Xx. Xxxxxxxxxx and the Company, being aware of said code section, agree to
expressly waive any rights they may have thereunder, as well as under any other
statute or common law principles of similar effect.
14. No Pending or Future Lawsuits. Xx. Xxxxxxxxxx represents that he has no
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lawsuits, claims, or actions pending in his name, or on behalf of any other
person or entity, against the Company its officers, directors, employees,
investors, shareholders, administrators, affiliates, divisions,
subsidiaries, predecessor and successor corporations, and assigns or any
other person or entity referred to herein. Xx. Xxxxxxxxxx also represents
that he does not intend and henceforth forswears any right to bring any
claims on his own behalf or on behalf of any other person or entity against
the Company or its officers, directors, employees, investors, shareholders,
administrators, affiliates, divisions, subsidiaries, predecessor and
successor corporations, and assigns or any other person or entity referred
to herein.
15. Confidentiality. The Parties hereto each agree to use their best efforts to
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maintain in confidence the existence of this Agreement, the contents and
terms of this Agreement, and the consideration for this Agreement
(hereinafter collectively referred to as "Settlement Information"). Each
Party hereto agrees to take every reasonable precaution to prevent
disclosure of any Settlement Information to third parties, and each agrees
that there will be no publicity, directly or indirectly, concerning any
Settlement Information. The Parties hereto agree to take every precaution
to disclose Settlement Information only to those employees, officers,
directors, attorneys, accountants, governmental entities, and family
members who have a reasonable need to know of such Settlement Information.
16. No Cooperation. Xx. Xxxxxxxxxx agrees he will not act in any manner that
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might damage the business or reputation of the Company. Xx. Xxxxxxxxxx
agrees that he will not counsel or assist any attorneys or their clients in
the presentation or prosecution of any disputes, differences, grievances,
claims, charges, or complaints by any third Party against the Company
and/or any officer, director, employee, agent, representative, shareholder
or attorney of the Company, unless under a subpoena or other court order to
do so.
17. Non-Disparagement. Each Party agrees to refrain from any defamation,
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libel or slander of the other, or tortious interference with the contracts
and relationships of the other.
18. Indemnification. The Company will provide Xx. Xxxxxxxxxx indemnification
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pursuant to California Law with regard to indemnification of employees
acting within the course and scope of their employment and any applicable
policies of Directors and Officer liability insurance.
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19. Tax Consequences. The Company makes no representations or warranties with
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respect to the tax consequences of the payment of any compensation to Xx.
Xxxxxxxxxx under the terms of this Agreement. Xx. Xxxxxxxxxx agrees and
understands that he is responsible for payment, if any, of any local, state
and/or federal taxes on the compensation paid hereunder by the Company and
any penalties or assessments thereon. Xx. Xxxxxxxxxx further agrees to
indemnify and hold the Company harmless from any claims, demands,
deficiencies, penalties, assessments, executions, judgments, or recoveries
by any government agency against the Company for any amounts claimed due on
account of Xx. Xxxxxxxxxx'x failure to pay federal or state taxes or
damages sustained by the Company by reason of any such claims, including
reasonable attorneys' fees. Xx. Xxxxxxxxxx agrees and understands that,
with respect to the compensation to be paid to Xx. Xxxxxxxxxx under this
Agreement, the Company will make applicable withholding only with respect
to the compensation described in Paragraphs1 and 2 hereof.
20. No Admission of Liability. The Parties understand and acknowledge that this
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Agreement constitutes a compromise and settlement of disputed claims. No
action taken by the Parties hereto, or either of them, either previously or
in connection with this Agreement shall be deemed or construed to be:
(a) An admission of the truth or falsity of any claims heretofore made, or
(b) An acknowledgment or admission by either Party of any fault or
liability whatsoever to the other Party or to any third Party.
21. Arbitration. The Parties agree that any and all disputes arising out of
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the terms of this Agreement, their interpretation, and any of the matters
herein released, shall be subject to binding arbitration in Alameda County,
California before the American Arbitration Association under its California
Employment Dispute Resolution Rules before a judge to be mutually agreed
upon. The Parties agree that the prevailing party in any arbitration shall
be entitled to injunctive relief in any court of competent jurisdiction to
enforce the arbitration award. The prevailing Party shall also be entitled
to reimbursement of their costs and reasonable attorneys' fees.
22. Authority. The Company represents and warrants that the undersigned has
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the authority to act on behalf of the Company and to bind the Company and
all who may claim through it to the terms and conditions of this Agreement.
Xx. Xxxxxxxxxx represents and warrants that he has the capacity to act on
his own behalf and on behalf of all who might claim through him to bind
them to the terms and conditions of this Agreement. Each Party warrants and
represents that there are no liens or claims of lien or assignments in law
or equity or otherwise of or against any of the claims or causes of action
released herein.
23. No Representations. Each Party represents that it has had the opportunity
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to consult with an attorney, and has carefully read and understands the
scope and effect of the provisions of this Agreement. Neither Party has
relied upon any representations or statements made by the other Party
hereto which are not specifically set forth in this Agreement.
24. Assignment. Xx. Xxxxxxxxxx'x rights and obligations under this Agreement
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shall not be assignable. The Company's rights and obligations under this
Agreement shall be assignable by the Company.
25. Successors. This Agreement shall be binding upon and inure to the benefit
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of, and shall be enforceable by Xx. Xxxxxxxxxx and the Company, their
respective heirs, executors, administrators and assigns. In the event the
Company is merged, consolidated, liquidated by a parent corporation. or
otherwise combined into one or more corporations, the provisions of this
Agreement shall be binding upon and inure to the benefit of the parent
corporation or the corporation resulting from such merger or to which the
assets shall be sold or transferred, which corporation from and after the
date of such merger, consolidation, sale or transfer shall be deemed to be
the Company for purposes of this Agreement.
26. Headings. The headings of sections herein arc included solely for
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convenience of reference and shall not control the meaning or
interpretation of any of the provisions of this Agreement.
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27. Severability. In the event that any provision hereof becomes or is
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declared by a court of competent jurisdiction to be illegal, unenforceable
or void, this Agreement shall continue in full force and effect without
said provision.
28. Entire Agreement. This Agreement represents the entire agreement and
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understanding between the Company and Xx. Xxxxxxxxxx concerning his
separation from the Company, and supersedes and replaces any and all prior
agreements, including the Employment Letter Agreement, and understandings
concerning Xx. Xxxxxxxxxx'x relationship with the Company and his
compensation by the Company.
29. No Oral Modification. This Agreement may only be amended in writing
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signed by Xx. Xxxxxxxxxx and the President of the Company.
30. Governing Law. The laws of the State of California shall govern this
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Agreement.
31. Effective Date. This Agreement is effective seven days after both Parties
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have signed it.
32. Counterparts. This Agreement may be executed in counterparts, and each
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counterpart shall have the same force and effect as an original and shall
constitute an effective, binding agreement on the part of each of the
undersigned.
33. Voluntary Execution of Agreement. This Agreement is executed voluntarily
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and without any duress or undue influence on the part or behalf of the
Parties hereto, with the full intent of releasing all claims. The Parties
acknowledge that:
(1) They have read this Agreement;
(b) They have been represented in the preparation, negotiation, and
execution of this Agreement by legal counsel of their own choice or
that they have voluntarily declined to seek such counsel;
(c) They understand the terms and consequences of this Agreement and of
the releases it contains;
(d) They are fully aware of the legal and binding effect of this
Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement on the
respective dates set for the below.
VIDAMED, INC.
Dated: 9/10/99 By: /s/
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XXXXX XXXXXXXX
President and Chief Executive Officer
Dated: 9/9/99 By: /s/
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XXXXXXX X. XXXXXXXXXX
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