EXHIBIT 10.1
CONFIDENTIAL SEPARATION AGREEMENT
This Confidential Separation Agreement ("Agreement") is made and entered into
this 15 day of August 2000 by and among Applied Biometrics, Inc. all of its
subsidiaries, affiliates, members and related entities (collectively: "Company"
or "Applied Biometrics"), and Xxxxxx X. Xxxxx ("Xx. Xxxxx") as follows:
Applied Biometrics and Xx. Xxxxx wish to provide for the termination of their
employment relationship and all agreements that may have existed between them,
and fully and finally to settle any and all disputes Xx. Xxxxx may have arising
out of his employment by Applied Biometrics or the termination of that
employment, without any admission of any kind by either party.
All remaining employees of Applied Biometrics are eligible to participate in
this group exit incentive. The offer to participate will remain open until
October 15, 2000. Attached to this Agreement, as Exhibit 1 is a listing of the
job titles and ages of all individuals eligible for this incentive. There are no
remaining employees who are not eligible for this incentive.
THEREFORE, in consideration of the promises and agreements set forth in this
Agreement, Applied Biometrics and Xx. Xxxxx agree as follows:
RELEASE
1. Employment Separation:
a. Separation: Effective on October 31, 2000, or on an earlier date
mutually agreed upon by Xx. Xxxxx and Applied Biometrics, Xx. Xxxxx
shall have no duties and no authority to make any representations or
commitments on behalf of Applied Biometrics as an employee or in any
capacity whatsoever. Thereafter, Xx. Xxxxx shall have no further
rights deriving from his employment by Applied Biometrics, and shall
not be entitled to any further compensation or non-vested benefits,
except as provided in this Agreement.
b. Consideration: In exchange for the promises and release of claims
contained in this Agreement, and subject to its terms, Applied
Biometrics agrees to provide Xx. Xxxxx the following benefits as
consideration. If Xx. Xxxxx elects not to sign the Agreement, Xx.
Xxxxx shall receive only those benefits and payments required by
law.
1) SEVERANCE PAYMENTS.
(a) Applied Biometrics will pay Xx. Xxxxx as xxxxxxxxx a
gross amount equal to twelve months ("Severance Period")
salary and car allowance. This severance payment will be
payable as a lump sum payment, to be paid on the next
regularly scheduled payday following the expiration of
the rescission period described in
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Paragraph 8 of the Agreement, or the last date actually
worked by Xx. Xxxxx, whichever is later. This payment
will be subject to all applicable deductions, including
federal, state, FICA and other taxes. Xx. Xxxxx will not
be eligible for bonus or bonus payments after his last
day of work at the Company. Applied Biometrics will
issue an IRS Form W-2 for this payment.
(b) BENEFITS PAYMENTS. Applied Biometrics will pay Xx. Xxxxx
a lump sum payment in the amount of $8,200, which equals
the cost of maintaining COBRA benefits for Xx. Xxxxx
during the severance period. This payment will be made
on the next regularly scheduled payday following the
expiration of the rescission period described in
Paragraph 8 of the Agreement, or the last date actually
worked by Xx. Xxxxx, whichever is later. To the extent
such payments constitute taxable income to Xx. Xxxxx,
Xx. Xxxxx will pay all associated taxes.
2. Xx. Xxxxx has the option to assume as primary lessee the Company's lease
with Audi Financial Service, account #715119308, ("lease"), associated
with a 1999 Audi A6 VIN XXXXX00X0XX000000 ("vehicle") or purchase the
vehicle from the Company for $31,480.
If Xx. Xxxxx elects to become the primary lessee of the lease, Xx. Xxxxx
agrees to lease the vehicle in an "as is" condition. Xx. Xxxxx agrees to
comply fully with the terms of the lease, including maintaining the
vehicle and making all payments required under the lease. Xx. Xxxxx agrees
to defend and indemnify Applied Biometrics against any and all claims and
complaints arising from his use of the vehicle, failure to properly
maintain the vehicle and/or failure to fully comply with the terms of the
lease. Xx. Xxxxx agrees to maintain insurance on the vehicle as is
required by the lease, naming Applied Biometrics as an additional insured.
Xx. Xxxxx has until September 15, 2000 to elect either to assume the lease
or purchase the vehicle from the Company. If Xx. Xxxxx does not choose
either of the above options, Xx. Xxxxx agrees to return the vehicle to
Carousel Automobiles on or before September 30, 2000.
3. Xx. Xxxxx certifies that he has reviewed the Agreement provided by Applied
Biometrics, given to him on or before August 15, 2000.
Xx. Xxxxx has forty-five (45) days to consider whether to accept this
Agreement and enter into this Release, and he has been advised to consult
with legal counsel of his choice. If he chooses to sign before forty-five
(45) days have passed, he understands that it is his decision to execute
the Agreement early and that Applied Biometrics has made the full
forty-five (45) day period available for his to consider the Agreement.
4. Xx. Xxxxx understands that the offer to accept the Agreement remains in
effect for forty-five (45) days after August 15, 2000. After forty-five
(45) days have passed, this offer
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expires and Applied Biometrics will be under no obligation to accept the
release or to provide any benefits under the Agreement.
5. After considering the Agreement and other relevant matters, Xx. Xxxxx
voluntarily agrees to waive any claims he (or anyone acting in his name or
on his behalf) may have against Applied Biometrics relating to his
employment with or separation from Applied Biometrics in exchange for the
consideration described in Paragraph 1. Xx. Xxxxx understands that this is
a full and complete release and waiver of all claims, complaints, causes
of action or demands relating to his employment with and separation from
Applied Biometrics that she/he may have against Applied Biometrics, its
successors, affiliates or related companies, all directors, officers,
employees and agents of Applied Biometrics, as of the date of his signing
the Release (the "Claims") based on events occurring up to the date he
signs this Agreement.
Xx. Xxxxx understands that this Release extends to, but is not limited to,
any Claims which he may have for age discrimination or any other form of
employment discrimination prohibited under Title VII of the Civil Rights
Act of 1964, the Age Discrimination in Employment Act, the Older Workers
Benefit Protection Act, the American with Disabilities Act, ERISA, the
Rehabilitation Act of 1973, the Minnesota Human Rights Act, the Minnesota
Human Rights Act, and any other local state or federal anti-discrimination
law or ordinance, any applicable wage and hour laws, and for wrongful
discharge, breach of contract, breach of any express or implied promise,
retaliation, breach of public policy, defamation, negligence or other
tortious conduct, or any other theory, whether legal or equitable and
including any Claims which could have been asserted to date. Xx. Xxxxx
acknowledges that he has been provided a full opportunity to review and
reflect on the terms of this Agreement and to seek legal counsel of his
choice, and any and all releases and waivers have been made with advice of
counsel. Notwithstanding the provisions of this Paragraph, nothing in this
Agreement shall be construed as a waiver by Xx. Xxxxx or Applied
Biometrics of any claim either may have for insurance coverage for defense
costs and/or indemnity based on actions performed by Xx. Xxxxx during his
employment at Applied Biometrics. Nothing in this agreement shall be
construed as waiving Xx. Xxxxx'x coverage or rights under the Company's
Director and Officers Insurance Policy.
6. Xx. Xxxxx agrees to keep the terms of the Agreement strictly confidential,
except that he may disclose the terms of the Agreement to his spouse, his
attorney and tax advisor, or as required by law, provided each party to
whom disclosure occurs is advised and agrees not to disclose the
information further. Xx. Xxxxx understands and agrees that except as set
forth in this paragraph, disclosure in any fashion of the existence of
this Agreement or any or all of its terms or conditions shall be a
material breach of the Agreement. Xx. Xxxxx agrees that any breach of this
confidentiality provision shall be specifically enforceable by a court of
law or equity, and further agrees to indemnify and hold Applied Biometrics
harmless for any costs, including reasonable attorneys' fees, incurred in
the enforcement of this confidentiality provision.
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7. Xx. Xxxxx agrees to refrain from making, or encouraging others to make,
any disparaging remarks about Applied Biometrics, including Applied
Biometrics' divisions, subsidiaries, affiliates, officers, directors,
employees, agents, and locations worldwide.
8. Xx. Xxxxx acknowledges that he has been provided a full opportunity to
review and reflect on the terms of the Agreement and to seek the legal
counsel of his choice. Xx. Xxxxx further acknowledges that he fully
understands and accepts the terms of the Agreement, and that he has
voluntarily and knowingly given it to Applied Biometrics.
9. Xx. Xxxxx realizes that he may cancel the Agreement at any time on or
before the fifteenth (15th) day following the date on which he signs this
Agreement. He understands that if he cancels the Agreement, the Agreement
shall not become effective or enforceable and he further understands that
Applied Biometrics shall not pay his the consideration set forth in
Paragraph 1. To be effective, the decision to cancel must be in writing
and delivered to Applied Biometrics personally or by certified mail, to
the attention of:
Board of Directors
Applied Biometrics, Inc.
000 Xxxx Xxxxxxx 00, Xxxxx 000
Xxxxxxxxxx, XX 00000
10. Proprietary Information. Nothing in this Agreement shall be interpreted as
releasing Xx. Xxxxx from compliance with any Applied Biometrics
Confidentiality Agreement (or similar titled agreement) that Xx. Xxxxx may
have executed. Xx. Xxxxx agrees not to disclose, in any manner to any
person, any Applied Biometrics Confidential Information. Xx. Xxxxx agrees
to return all originals and copies of documents containing Confidential
Information as well as all documents generated by Xx. Xxxxx on behalf of
Applied Biometrics and all documents relating to the business of Applied
Biometrics from any source whatsoever. For purposes of this Agreement,
"Applied Biometrics Confidential Information" means any information that
Xx. Xxxxx learned or developed during the course of employment with
Applied Biometrics that derives independent economic value from not being
generally known, or not being readily ascertainable by proper means, by
other persons who can obtain economic value from the disclosure or use of
such information. Such information includes, but is not limited to Applied
Biometrics' sales information, information about new or future products,
Applied Biometrics' marketing plans and goals, lists of Applied
Biometrics' customers and the identities of preferred customers,
information about customer purchases and preferences, information
regarding research and development, information regarding management
systems and any other confidential information which provides Applied
Biometrics with a competitive advantage.
11. Miscellaneous. Except for agreements described in Paragraph 9, this
Agreement constitutes the entire agreement among the parties hereto as to
the subject matter hereof and supersedes all other previous written or
oral agreements or understandings as to such subject matter. This
Agreement may be modified, and the performance of it may be waived only by
a writing signed by each of the parties hereto. No parol or other evidence
may be offered to add to, contradict or otherwise interpret this
Agreement, which all
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parties agree is clear and concise as to its meaning. This Agreement may
be signed in any number of counterparts with the same effect as if the
signatures and all such counterparts were on the same instrument. This
Agreement shall be construed and enforced in accordance with, and the laws
of the State of Minnesota shall govern all questions concerning the
construction, validity, interpretation and performance of this Agreement
without giving effect to provisions thereof regarding conflict of laws.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of this 15 day of August 2000.
Date: August 24, 2000 Date: August 24, 2000
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/s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxxx Xxxxx
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Xx. Xxxxxx X. Xxxxx Director
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Applied Biometrics, Inc.
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LISTING OF JOB TITLES AND AGES OF ALL EMPLOYEES THAT ARE ELIGIBLE FOR THIS
INCENTIVE
JOB TITLE AGE
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President & Chief Executive Officer 43
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