EXHIBIT 10.14
SEVERANCE AND RELEASE AGREEMENT
THIS SEVERANCE AND RELEASE AGREEMENT ("Agreement") is made and entered
into effective August 31, 2004 (the "Effective Date") by and between Xxxx X.
Xxxx ("Employee") and Xxxxxx Medical Technology, Inc. ("Company").
DEFINITIONS:
A. As used herein, the term "Employee" shall mean
Xxxx X. Xxxx, Employee's heirs, personal
representatives, and assigns.
B. As used herein, the term "Company" shall mean
Xxxxxx Medical Technology, Inc., its successors,
assigns, affiliates, divisions, and all of the past and
present officers, directors, employees and agents,
in their individual and representative capacities.
WHEREAS, the Employee and the Company desire to settle and resolve all
matters pertaining to Employee's employment with Xxxxxx Medical Technology, Inc.
and the termination of that employment;
NOW THEREFORE in consideration of the promises, agreements, releases
and obligations as hereinafter set forth, it is agreed by the Employee and the
Company as follows:
1. The Employee unconditionally releases the Company from any and all
causes of action and liability related to the Employee's hire, employment, and
termination of employment at Company occurring prior to and up to the effective
date of this Agreement, including, but not limited to, any breach of contract
claims, common law tort claims, claims of discrimination, claims for benefits
(including claims under the Employee Retirement Income Security Act of 1974), as
well as any claims which the Employee may have under or in connection with any
and all local, state or federal ordinances, statutes, or common law. The only
exclusion from this release is a claim that some term of this Agreement has been
violated. Company represents to Employee that as of the date of this Agreement,
it does not have or know of any claims or causes of actions which it may have
against Employee. Employee shall be entitled to indemnification by the Company
for acts arising in the course of Employee's employment in accordance with and
subject to the indemnification provisions contained in the Articles of
Incorporation and/or Bylaws of the Company as in effect from time to time.
2. The Employee's employment with the Company will be terminated at the
close of business on August 31, 2004.
3. The Employee certifies that this Agreement is fully understood by
Employee, is entirely satisfactory to Employee, and that Employee's signing of
this Agreement is Employee's own free and informed act and deed and that
Employee has been given the opportunity to discuss it with counsel of Employee's
choosing.
4. The Employee acknowledges that they are currently able to work in
their current position without limitations, either physical or mental and
without any accommodation for any physical or mental ailment.
5. To the extent permitted by law, the Employee and the Company agrees
each will maintain the strictest secrecy and will not disclose the terms of this
Agreement to any agency or person except where disclosure is compelled pursuant
to legal process or for reporting purposes to Federal, State, or local taxing
authorities, or in discussions with legal and financial advisors and employee's
immediate family members.
6. The Employee further agrees not to disclose to any person any
matters relating to the confidential business affairs of the Company or the
confidential business affairs or the personal affairs of any officer, director
or employee of the Company, or to take any action or make any written or oral
statement at any time which could tend, in the sole discretion of the Company,
to disparage, demean or embarrass the Company, or its subsidiaries, divisions,
officers, directors or employees.
7. The Employee further agrees to execute Exhibit A, which releases the
Company from any and all liabilities under the Age Discrimination in Employment
Act.
8. The Employee agrees to cooperate with the Company during the
Severance period by providing information, in response to any reasonable
request, relative to the Employee's duties performed heretofore. The person
through whom this information shall be requested will be the Employee's direct
report as the date of this agreement, or their designee.
9. This Agreement, and any dispute arising in connection with its
operation or execution, shall be construed in accordance with and governed by
the statutes and common law of the State of Tennessee and shall be resolved by
binding arbitration in Memphis, Tennessee. Each party to this Agreement will
select one arbiter. The two arbiters so selected shall then select a third.
Decisions of the arbitration panel shall be binding upon the parties hereto. The
prevailing party shall be entitled to have all expenses, including, but not
limited to, attorney fees and any fees submitted by the arbitrators to be paid
by the non-prevailing party.
10. This Agreement reflects the entire agreement of the parties
relative to the subject matter hereof and supersedes all prior or
contemporaneous oral or written understandings, statements, representations or
promises.
11. The parties agree that each provision of this Agreement is
severable and further agree that if any term or provision is held to be invalid,
void, or unenforceable by a court of competent jurisdiction or an administrative
agency for any reason whatsoever, such ruling shall not affect the validity of
the remainder of this Agreement.
12. In exchange for this agreement, ADEA Release and Agreement attached
as Exhibit A the company will provide pay and benefits as follows:
(a). Severance pay equal to 17.33 weeks at the salary rate in
effect at termination payable over the course of the Severance
Period in accordance with the Company's normal payroll
practices.
(b). Earned and unused vacation for 2004, if any.
(c). COBRA paid Group medical, dental, and vision plan coverage
during the time the employee is receiving severance pay (the
"Severance Period").
(d). The attorney's fee for review of the release agreement of up
to, but not to exceed $200.
(e). Any stock options you have are governed by the specific stock
option agreement and the applicable stock option plan. This
Agreement does not supersede those stock related agreements.
The following points generally apply to your options: (1)
options that have not yet vested at the time of termination
shall expire and no further vesting shall occur with respect
to those options; (2) vested options remain exercisable until
the earlier of the Expiration Date or the date that is ninety
(90) days after termination if the termination is without
cause; (3) if the termination is voluntary, other than for
reasons of disability or retirement, or if the termination is
for cause, then all of the options, to the extent not
exercised prior to termination, whether exercisable or not,
shall immediately lapse and be cancelled. Check your stock
option agreement and the applicable stock option plan for the
specific terms that apply to your stock options.
THE EMPLOYEE ACKNOWLEDGES THAT EMPLOYEE READ THIS SEVERANCE AGREEMENT,
THAT EMPLOYEE UNDERSTANDS ALL OF ITS TERMS AND EXECUTES IT VOLUNTARILY AND WITH
FULL KNOWLEDGE OF ITS SIGNIFICANCE AND THE CONSEQUENCES THEREOF.
Signed this 31st day of August, 2004.
/s/ Xxxx X. Xxxx
-----------------------------
Xxxx X. Xxxx
XXXXXX MEDICAL TECHNOLOGY, INC.
/s/ Xxxxx X. Xxxx
-------------------------------
(Officer)
EXHIBIT A
PRIVATE AND CONFIDENTIAL
ADEA RELEASE AND AGREEMENT
As a material inducement to employer (hereinafter referred to as Xxxxxx Medical
Technology, Inc.) to enter into this Release, Xxxx X. Xxxx (hereinafter referred
to as "Employee") (for Employee, Employee's heirs, executors, administrators and
assigns) hereby unconditionally releases and forever discharges Xxxxxx Medical
Technology, Inc. and each of the Xxxxxx Medical Technology, Inc. stockholders,
predecessors, successors, assigns, agents, directors, officers, employees,
representatives, attorneys, divisions, subsidiaries, affiliates and all persons
acting by, through, under, or in concert with any of them from any and all
charges, complaints, claims, liabilities, obligations, promises, agreements,
controversies, damages, actions, causes of action, suits, rights, demands,
costs, losses, debts and expenses (including attorney's fees and costs actually
incurred) of any nature whatsoever, known or unknown, suspected or unsuspected,
including, but not limited to, rights, under the Age Discrimination in
Employment Act of 1967, and other federal, state, or local laws prohibiting
discrimination, any claims the employee may have with regard to Employee's
hiring, employment, or electing the re-employment program and termination of
employment claims growing out of any legal restrictions on Xxxxxx Medical
Technology's right to terminate its employees ("Claim" or "Claims"), which the
employee now has, owns or holds, or claims to have owned or held, or which the
employee at any time hereinafter may have owned or held or claimed to have owned
or held against Xxxxxx Medical Technology.
To comply with the Older Workers Benefit Protection Act of 1990, the Release and
Agreement has advised employee of the legal requirements of this Act and fully
incorporates the legal requirements by reference into this Agreement as follows:
a. This Agreement is written in xxxxxx'x terms, and the employee
understands and comprehends its terms;
b. Employee has been advised of Employee's rights to consult an
attorney to review the agreement;
c. Employee does not waive any rights or claims that may arise
after the date the Release is executed;
d. Employee is receiving consideration beyond anything of value
to which he already is entitled;
e. Employee has been given a reasonable period of time to
consider this Agreement.
As consideration for this Release, Xxxxxx Medical Technology, Inc. agrees to
provide the items listed previously in paragraph 12 of The Release Agreement
dated August 31,2004. The employee enters into this Release with full knowledge
of its contents and enters into this Agreement voluntarily.
ADEA Agreement Page 1 of 2
I acknowledge that I fully understand and agree that this Agreement may be
pleaded by Xxxxxx Medical Technology, Inc. as a complete defense to any claim
which hereafter may be asserted by me or a claim against Xxxxxx Medical
Technology, Inc. for or on account of any matter or thing whatsoever arising out
of the employment relationship or my termination from active employment.
IN WITNESS WHEREOF, the parties have executed this Release.
/s/ Xxxx X. Xxxx
-----------------------
Xxxx X. Xxxx
SUBSCRIBED AND SWORN TO, before me, a Notary Public, in my presence this 31st
day of August, 2004
(SEAL) /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Notary Public In and For
SHELBY County,
My Commission Expires:
XXXXXX MEDICAL TECHNOLOGY, INC.
By: /s/ Xxxxx X. Xxxx
--------------------------
(Officer)
SUBSCRIBED AND SWORN TO, before me, a Notary Public, in my presence this 31st
day of August, 2004
(SEAL)
Notary Public In and or
SHELBY County,
My Commission Expires:
February 6, 2006
NOTE: EMPLOYEE IS HEREBY ADVISED OF THEIR RIGHT TO RESCIND AND NULLIFY THIS
AGREEMENT, WHICH RIGHT MUST BE EXERCISED, IF AT ALL, WITHIN SEVEN (7) DAYS OF
THE DATE OF EMPLOYEE'S SIGNATURE. EMPLOYEE MUST REVOKE RELEASE BY LETTER TO
XXXXXX MEDICAL TECHNOLOGY, INC. WITHIN SEVEN (7) DAYS. NO CONSIDERATION SHALL BE
CONVEYED UNTIL SUCH TIME PERIOD HAS EXPIRED.
ADEA Agreement Page 2 of 2
