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Exhibit 10.31
DUPLICATE Original No. ______ of ______
AGREEMENT AND GENERAL RELEASE OF ALL CLAIMS
This Agreement and General Release of All Claims ("Agreement")
is entered into by and between Xxxxxxxx X. XxXxxx ("You" or "Employee") and
Boston Scientific Corporation ("BSC") as of the latest date of execution by the
parties to this Agreement. This Agreement shall not become effective until the
Effective Date (as defined in Paragraph 6(d), below). This Agreement supersedes
and cancels any prior employment agreements or arrangements You may have entered
into with BSC except for the Employee Agreement ("Employee Agreement") signed by
You on November 3, 1997 and attached hereto as Attachment 1 and the Directors
and Officers Indemnification Agreement ("Indemnification Agreement") signed by
you on November 3, 1997 and attached hereto as Attachment 2. Your obligations
under the Employee Agreement shall be in addition or complementary to and shall
not be superseded by this Agreement. However, if there is any conflict in terms
between this Agreement and the Employee Agreement, the terms of this Agreement
prevail.
In consideration of the mutual covenants, agreements, and
representations contained herein, the adequacy of which is hereby acknowledged,
the parties hereto expressly and intentionally bind themselves as follows:
1. TERMINATION OF EMPLOYMENT
You hereby acknowledge and agree that on February 7, 2000
("Notification Date") You were notified that your position as Senior Vice
President and Group President-Vascular and Non-vascular Business and as an
employee of BSC will end on February 29, 2000 ("Termination Date"). For the
period between your Notification Date and Termination Date, You agree to provide
full-time services of BSC. Furthermore, as of March 1, 2000, You agree to
provide and be paid for services as further described in a document titled
"Consulting Agreement between Xxxxxxxx X. XxXxxx and Boston Scientific
Corporation", attached hereto as Attachment 3 (the "Consulting Agreement").
2. PAYMENTS BY BSC
(a) For the period between your Notification Date and
Termination Date, BSC will pay to You on each regular payroll cycle the
bi-weekly portion of your current BSC base annual salary, which is Three Hundred
Eighty Thousand Sixteen Dollars and no cents ($380,016.00), less applicable
payroll withholding for taxes and other applicable deductions. You expressly
acknowledge that upon the occurrence of the Termination Date, You will not be
eligible for any payments or benefits in addition to those described in this
Agreement under any existing BSC Severance Pay Plan and/or Layoff Notification
Plan.
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(b) BSC shall make all necessary arrangements to effectuate
your move from the United States to Geneva, Switzerland, and in connection
therewith, BSC agrees to pay all actual costs associated with the transfer of
your personal goods and effects and your personal travel. You hereby agree that
you are responsible for any tax obligations which may apply to any and all such
payments made by BSC on your behalf.
(c) BSC agrees to assume the costs associated with the lease
You have entered into for your present personal residence located at 00 Xxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx ("32 Xxxxxxxx Street") as follows:
(i) BSC will pay up to Twenty-four Thousand One
Hundred Fifty Dollars and no cents ($24,150.00) (for the period March 1, 2000
through August 31, 2000 at the rate of Four Thousand Twenty-Five Dollars and no
cents ($4,025.00) per month) in connection with BSC's assumption of the lease of
the 00 Xxxxxxxx Xxxxxx premises, such Twenty-four Thousand One Hundred Fifty
Dollars and no cents ($24,150.00) amount to be reduced by Four Thousand
Twenty-Five Dollars and no cents ($4,025.00) per month for each month that the
00 Xxxxxxxx Xxxxxx premises are in fact leased to someone other than You;
(ii) BSC has already paid on your behalf the sum of
Two Thousand One Hundred Dollars and no cents ($2,100.00), which represents
approximately one-half of the 00 Xxxxxxxx Xxxxxx monthly rent required as a
deposit for a portion of the broker's fee assessed in connection with the
attempt to lease the 00 Xxxxxxxx Xxxxxx premises to someone other than You, and
BSC agrees to pay an additional Two Thousand One Hundred Dollars and no cents
($2,100.00) as the remainder of the broker's fee upon the actual lease of those
premises to someone other than You.
(iii) You hereby agree that you are responsible for
any tax obligations which may apply to any and all such payments described in
Paragraphs 2(c)(i) and (ii), above, and made by BSC on your behalf.
(d) If Employee provides BSC with reasonable documentation
establishing the marginal additional tax liability that he has incurred in the
United States as a result of the payments made by BSC pursuant to Paragraphs
2(b) and 2(c)(i) and (ii) above, BSC will make a further payment to Employee
equal to 1.5 times such actual tax liability
(e) BSC will pay You in accordance with applicable
Massachusetts law for two days of unused vacation time accrued by You through
the Termination Date under the terms of your September 24, 1997 offer of
employment letter.
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3. STATUS OF EMPLOYMENT BENEFITS
(a) The Split Dollar Life Insurance Policy currently in place
on your behalf (the "Policy") will remain in place, and all of the terms and
conditions of that Policy will continue to apply through February 28, 2002, as
of which date, BSC will cease paying its portion of the premium for the policy
and You may elect to either:
(i) pay the entire premium necessary to keep the
Policy in effect; or
(ii) take a paid-up policy in an amount of the
Policy's cash value net of BSC contributions to the Policy through February 28,
2002.
(b) You agree and acknowledge that your participation in BSC's
401(k) Plan, Stock Option Plan(s), and Global Employee Stock Option Plan, if
any, Accidental Death and Dismemberment (AD&D), Business Travel Accident, and
Short-Term and Long-Term Disability Plans will terminate as of your Termination
Date, as will your accrual of vacation time under the applicable vacation
schedule. You further agree and acknowledge that You will participate through
the Termination Date in all other benefits and benefit plans in which You are
currently enrolled to the same extent as do active employees and that your
participation in and entitlement to any and all other benefits and benefit plans
in which You are currently enrolled, but which are not otherwise specifically
addressed in this Agreement, terminates on the Termination Date.
(c) As of February 29, 2000 your participation in BSC's
Medical/Dental/Vision Plans (as well as the participation of any of your
dependents who were covered by such Plans one month prior to the Notification
Date) shall continue, on the same terms and conditions as such coverage is made
available from time to time to BSC employees generally as provided by the
Consolidated Omnibus Budget and Reconciliation Act of 1985 ("COBRA"), should You
be eligible for and elect it. To enable BSC to comply with its obligation to
provide notification of any rights you may have to continue
Medical/Dental/Vision Plan coverage, You agree to inform BSC of any change in
address or marital status. You also acknowledge that You understand that the
terms of BSC's Medical/Dental/Vision Plans offered to BSC employees generally
may change from time to time, and that your coverage and associated contribution
costs will be subject to any such change.
(d) Any unvested portions of previously awarded stock option
grants will continue to vest through the Termination Date and will become
exercisable under the terms and conditions contained in the applicable option
agreement(s) and plan documents.
4. EXPENSE REIMBURSEMENT
BSC will reimburse You in accordance with usual BSC policy for
all unreimbursed business travel and other out-of-pocket expenses incurred by
You through the
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Termination Date in the performance of your duties as an employee of BSC. Such
expenses must be submitted no later than March 10, 2000.
5. CONSIDERATION FOR ENTERING INTO THIS AGREEMENT
In addition to recitals made elsewhere in this Agreement,
Employee acknowledges and agrees that BSC's provision of: (i) the payments
described in Paragraphs 2(b) and 2(c), above, and (ii) the treatment of the
Split Dollar Life Insurance Policy under Paragraph 3(a), above, constitute full,
valid and adequate consideration for entering into this Agreement because
Employee would not be entitled to them except for having entered into this
Agreement.
6. RELEASE BY EMPLOYEE
Employee hereby releases and forever discharges BSC and its
subsidiaries, affiliates, successors, and assigns and the Directors, officers,
shareholders, employees, representatives and agents of each of the foregoing
(collectively "Releasees") of and from the following as of the date of execution
of this Agreement:
(a) Any and all claims, demands, and liabilities whatsoever of
every name and nature (other than those arising directly out of this Agreement
and/or the Indemnification Agreement between the parties effective as of
November 3, 1997 attached as Attachment 2, and/or the Consulting Agreement
between the parties executed contemporaneously herewith and attached as
Attachment 3), including (without limitation) any claim in the nature of
so-called whistleblower complaints to the extent permitted by applicable law,
and any and all claims, demands and liabilities with respect to Employee's
employment or the terms and conditions or termination of his employment,
benefits or compensation which Employee has against Releasees, or ever had;
(b) As included in the above, without limitation, all claims
known or which reasonably could have been known for tortious injury, breach of
contract, and wrongful discharge (including without limitation, any claim for
constructive discharge), all claims for infliction of emotional distress, all
claims for slander, libel, or defamation of character, all claims of
retaliation, and all claims for attorneys' fees, as related to Employee's
employment by BSC, or the terms and conditions or termination of his employment,
benefits, or compensation; and
(c) Employee specifically releases and forever discharges
Releasees from any and all claims based upon any allegation of employment
discrimination, including (without limitation) discrimination on the basis of
race, color, sex, sexual orientation, age (including any claim pursuant to the
Federal Age Discrimination in Employment Act ("ADEA")), religion, disability or
national origin.
(d) Employee acknowledges that he has been given the
opportunity, if he so desires, to consider this Agreement for twenty-one (21)
days before executing it. In the event
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that Employee executes the Agreement within less than twenty-one (21) days of
the date of its delivery to him, he acknowledges that such decision was entirely
voluntary and that he had the opportunity to consider this Agreement for the
entire twenty-one (21) day period. Employee agrees that any modifications,
material or otherwise, made to this Agreement do not restart or affect in any
manner the original twenty-one (21) day consideration period. BSC acknowledges
that for a period of seven (7) days from the date of the execution of this
Agreement, Employee shall retain the right to revoke this Agreement by written
notice to BSC, c/o Xxxxxx X. XxxXxxx, Senior Vice President, Human Resources,
Boston Scientific Corporation, Xxx Xxxxxx Xxxxxxxxxx Xxxxx, Xxxxxx, XX 00000
("Xx. XxxXxxx"), or his successor, and that this express Agreement shall not
become effective or enforceable until the date such revocation period expires
(the "Effective Date"). Therefore, no BSC obligations will be met and payments
called for by BSC under Paragraphs 2(b), 2(c) and 3(a), above or under the
Consulting Agreement, shall not be made until the Effective Date.
7. NO DAMAGES SOUGHT; FUTURE ACTIONS
(a) Employee represents and states that he has not and will
not seek any damages in connection with any complaints or charges filed against
Releasees with any local, state, federal or foreign agency or court, and
Employee agrees that if any complaint or charge is filed on his behalf, he shall
take all reasonable steps necessary to refuse any compensation in connection
with any damages claimed in connection therewith.
(b) In addition, to the extent permitted by applicable law,
Employee represents and warrants that he has not previously recommended or
suggested, and he will not recommend or suggest, to any foreign, federal, state
or local governmental agency or any potential claimants against or employees of
the Releasees, that they initiate any claim or lawsuit against the Releasees,
and, again to the extent permitted by applicable law, Employee will not
voluntarily aid, assist or cooperate with any claimants against or employees of
the Releasees in bringing such claims or lawsuits; provided, however, that
nothing in this Paragraph 7 will be construed to prevent Employee from giving
truthful testimony in response to direct questions asked pursuant to a lawful
subpoena or other legal process during any future legal proceeding involving the
Releasees.
8. NO LIABILITY ADMITTED
Employee acknowledges that neither BSC's execution of this
Agreement nor BSC's performance of any of its terms shall constitute an
admission by BSC of any wrongdoing by any of the Releasees.
9. NONDISCLOSURE OF CONFIDENTIAL INFORMATION
(a) Employee shall keep entirely secret and confidential, and
shall not disclose to any person or entity, in any fashion or for any purpose
whatsoever, any information that is (i)
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not available to the general public, and/or (ii) not generally known outside
BSC, regarding Releasees to which he has had access or about which he heard
during the course of his employment by BSC, including (without limitation) any
information relating to BSC's business or operations; it plans, strategies,
prospects or objectives; its products, technology, processes or specifications;
its research and development operations or plans; its customers and customer
lists; its manufacturing, distribution, procurement, sales, service, support and
marketing practices and operations; its financial conditions and results of its
operations; its operational strengths and weaknesses; and its personnel and
compensation policies, procedures and transactions.
(b) Employee agrees to return to BSC, on or before the
Termination Date, documents or media of whatever nature, including summaries
containing any of the data referred to in the immediately preceding paragraph
whatsoever, including all documents, data, material, details and copies thereof
in any form. Employee agrees to return to BSC, on or before the Termination
Date, all BSC property, including (without limitation) all computer equipment,
property passes, keys, credit cards, business cards, identification badges, and
all sample and demonstration products. Employee may purchase his computer and
fax from BSC for One Thousand Dollars ($1,000.00).
10. NO DETRIMENTAL COMMUNICATIONS
Employee agrees that he will not disclose or cause to be
disclosed any negative, adverse or derogatory comments or information about
Releasees, about any product or service provided by Releasees, or about
Releasees' prospects for the future. Furthermore, Employee hereby represents to
BSC that he has made no such communication to any public official, to any person
associated with the media, or to any other person or entity. Employee
acknowledges that BSC relies upon this representation in agreeing to enter into
this Agreement.
11. FUTURE ASSISTANCE
BSC may seek the assistance, cooperation or testimony of
Employee in connection with any investigation, litigation, patent application or
prosecution, or intellectual property or other proceeding arising out of matters
within the knowledge of Employee and/or related to his position as an employee
of BSC, and in any such instance, Employee shall provide such assistance,
cooperation or testimony and BSC shall pay Employee's reasonable costs and
expenses in connection therewith.
12. HIRING OF BSC'S EMPLOYEES
During the period beginning as of the date You sign this
Agreement and for twenty-four (24) months thereafter, You shall not attempt to
or actually solicit for hire any individual who was an employee of BSC or any of
the Releasees within the twelve (12) month period immediately preceding the
Termination Date, assist in the hiring away of any such employee by another
person, or encourage any such employee to terminate his or her
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employment with BSC or any of the Releasees, whether directly or indirectly,
unless the President of BSC or his designee shall have given prior written
approval.
13. POST-SEPARATION NON-COMPETITION RESTRICTION
During the period beginning as of the date You sign this
Agreement, and for twenty-four (24) months thereafter, You agree that You shall
not, directly or indirectly, without the written consent of an Executive Officer
of BSC, engage in any activity in the area of medical device development, line
or staff operations, manufacturing, marketing or sales which is competitive with
BSC as it relates to any of the work You performed or with which You were
familiar as an employee of BSC.
14. CONFIDENTIALITY
Employee agrees to keep confidential the existence of this
Agreement, as well as all of its terms and conditions, and not to disclose to
any person or entity the existence, terms or conditions of this Agreement except
to his attorney, financial advisors and/or members of his immediate family
provided they agree to keep confidential the existence, terms and conditions of
this Agreement. In the event that Employee believes he is compelled by law to
divulge the existence, terms or conditions of this Agreement, he will notify BSC
(by notifying BSC's Legal Department) of the basis for the belief before
actually divulging the information. Employee hereby confirms that as of the date
of signing this Agreement, he has not disclosed the existence, terms or
conditions of this Agreement, except as permitted by this Paragraph 14. In the
event of a breach of this Agreement or the Employee Agreement, Employee shall
repay to BSC all of the amounts paid under Paragraphs 2(b), 2(c) and 3(a),
above, and shall be liable, moreover, for any damages which a court may
determine and shall be subject to injunctive relief, damages, and any other
relief which a court may award.
15. GOVERNING LAW; SEVERABILITY
This Agreement is entered into and shall be construed under
the laws of the Commonwealth of Massachusetts, without regard to its conflict of
laws rules and as an instrument under seal. In the event any provision of this
Agreement is determined to be illegal or unenforceable by a duly authorized
court of competent jurisdiction, then the remainder of this Agreement shall not
be affected thereby, it being the intention of the parties that each provision
of this Agreement shall be valid and enforceable to the fullest extent permitted
by law. However, if any portion of the Release language in Paragraph 6, above,
were ruled to be unenforceable for any reason, Employee shall return the
consideration provided under Paragraphs 2(b), 2(c) and 3(a), above, to BSC upon
demand by BSC, which demand shall be made if Employee were to file any claim
against BSC in violation of this Agreement, especially Paragraph 7.
16. WAIVERS; AMENDMENTS
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The failure of either party to require the performance of any
term or obligation of this Agreement, or the waiver by either party of any
breach of this Agreement, shall not prevent any subsequent enforcement of such
term or obligation and shall not be deemed a waiver of any subsequent breach. No
modification, alteration, or change or waiver of any provision of this Agreement
shall be effective unless in writing and signed by both parties wherein specific
reference is made to this Agreement.
17. NO OTHER INDUCEMENTS
This Agreement sets forth the entire understanding of the
parties in connection with its subject matter. Any and all prior negotiations
are merged in this Agreement. Neither of the parties has made any settlement,
representation or warranty in connection with the issues addressed in this
Agreement (except those expressly set forth in this Agreement) which has been
relied upon by the other party, or which acted as an inducement for the other
party to enter into this Agreement.
18. PERSONS BOUND BY THE AGREEMENT
This Agreement shall be binding upon and inure to the benefit
of Employee and to the benefit of BSC and its respective successors and assigns.
19. ASSIGNMENT OF INTERESTS
Employee warrants that he has not assigned, or transferred or
purported to assign or transfer any claim against Releasees.
20. PREVAILING PARTY ENTITLED TO FEES
In the event that any action or proceeding is initiated to
enforce or interpret the provisions of this Agreement, or to recover for a
violation of the Agreement, the prevailing party in any such action or
proceeding shall be entitled to its costs (including reasonable attorneys'
fees).
21. REFERENCE
BSC agrees to provide Employee with a reference in the form
attached hereto as Attachment 4. With permission of Employee, Xx. XxxXxxx shall
provide a copy of Attachment 4 in response to an inquiry that he receives as to
Employee's employment relationship with BSC. BSC's only contractual undertakings
with respect to supplying Employee with a reference are those set forth above
which Xx. XxxXxxx has agreed to perform on behalf of BSC. BSC further agrees to
instruct those members of senior management who are made aware of this Agreement
to refer inquiries about Employee's employment relationship with BSC to Xx.
XxxXxxx.
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Employee acknowledges that BSC has numerous directors, officers, employees and
agents, any of whom may be contacted or may offer a view about Employee's
employment relationship with BSC, and he further acknowledges and agrees that
BSC has made no contractual undertaking as to how any of those directors,
officers, employees or agents other than Xx. XxxXxxx may comment about Employee.
21. REPRESENTATION
Employee represents that, prior to executing this Agreement, he had the
opportunity to review the provisions of this Agreement with counsel of his
choice.
The parties have read the foregoing Agreement and know its
contents, and know that its terms are contractual and legally binding. The
parties further agree that they enter this Agreement voluntarily and that they
have not been pressured or coerced in any way into signing this Agreement.
IN WITNESS WHEREOF, the parties hereby agree.
By:
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Xxxxxxxx X. XxXxxx Date
BOSTON SCIENTIFIC CORPORATION
By:
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Xxxxxx X. XxxXxxx Date
Senior Vice President
Human Resources
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