CONFIDENTIAL SEPARATION AGREEMENT AND RELEASE
EXHIBIT 10.1
CONFIDENTIAL
SEPARATION AGREEMENT AND RELEASE
SEPARATION AGREEMENT AND RELEASE
This Separation Agreement and Release (the “Agreement”) is between Xxxxx Xxxxx (“Executive”)
and Synovis Life Technologies (“Synovis”).
RECITALS
A. Executive was employed by Synovis as Chief Operating Officer from June 1, 2004 until the
position was eliminated on May 12, 2010 (“Separation Date”).
B. Executive and Synovis (“the Parties” or individually, “Party”) mutually desire to end their
relationship amicably and eliminate any potential disputes and, therefore, voluntarily enter into
this Confidential Separation Agreement and Release.
AGREEMENTS
Based upon the foregoing, and in consideration of the mutual promises set forth herein, and
other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged,
the Parties agree as follows:
1. Authority & Payments Received. Executive represents that he has full power and
authority to enter into this Agreement and agrees that he has been paid all amounts due and owing
as of the date of execution of this Agreement, including but not limited to, any amounts due under
any contract, all regular salary, expenses, distributions, earned but unused vacation, bonuses and
incentive compensation, and Executive further agrees and acknowledges that such amounts are not
consideration for this Agreement.
2. Consideration & Effective Date. The Parties recognize that, apart from this
Agreement, Synovis is not obligated to provide Executive with any of the benefits set forth
hereunder. The “Effective Date” of this Agreement shall be eighteen (18) calendar days following
the receipt of the original fully executed copy of this Agreement by Xxxxxxx X. Xxxxx, President &
CEO, Synovis Life Technologies, 0000 Xxxxxxxxxx Xxx. X., Xx. Xxxx, XX 00000-0000, provided
Executive does not revoke or rescind this Agreement as stated in Section 9. Synovis’s obligations
under this Agreement are not triggered before the Effective Date. Subject to Executive’s
compliance with the terms and conditions of this Agreement, Synovis agrees to provide Executive the
following consideration:
Synovis will provide Executive with a one-time lump sum payment in the total gross amount of
$174,656.25, less required deductions for tax withholding, representing nine (9) months of
Executive’s most recent salary plus an additional lump sum of $38,937.68. Synovis shall include
this amount on the Executive’s Form W-2 for 2010 (hereinafter both payments shall collectively be
referred to as the “Consideration Payment”). Synovis shall pay Executive the Consideration Payment
on or before the Effective Date.
3. No Rights to Additional Benefits. Executive acknowledges and agrees that, apart
from this Agreement, Synovis is not obligated to provide Executive with any of the benefits set
forth hereunder, including the consideration referenced in Section 2, and that such consideration
is in exchange for entering into this Agreement. Executive will not at any time seek additional
consideration from Synovis.
4. Taxes. It is understood that Synovis makes no representations or warranties with
respect to the tax consequences of the payments referenced in Section 2 to Executive under the
terms of this Agreement. Executive further acknowledges and agrees that the payments set forth
herein may result in taxable income to Executive under applicable federal, state, and/or local tax
laws. Executive acknowledges and agrees that he shall be solely responsible for any taxes that may
be assessed against him relating to the payments made pursuant to this Agreement, including but not
limited to all federal, state, and/or local taxes, and any other liens, obligations, claims, or
consequences to him that may arise from this Agreement. Executive agrees to indemnify and hold
Synovis harmless from any claims, demands, deficiencies, levies, assessments, executions, judgments
or recoveries by any governmental entity against Synovis for any amounts claimed due on account of
this Agreement or pursuant to claims made under any federal or state tax laws, and any costs,
expenses or damages sustained by Synovis by reason of any such claims, including any amounts paid
by Synovis as taxes, attorneys’ fees, deficiencies, levies, assessments, fines, penalties, interest
or otherwise; and that he will not seek any indemnification from Synovis with respect thereto.
5. Mutual Release.
(a) Executive, on behalf of himself, his spouse, successors, heirs, and assigns, hereby
forever releases and discharges Synovis (including its parents, subsidiaries, directors,
officers, employees, agents, predecessors, successors, assigns, shareholders and insurers)
(the “Released Parties”) to the fullest extent permitted by law from, and covenants not to
xxx or otherwise institute or cause to be instituted any legal or administrative proceedings
against Synovis with respect to, any and all claims, debts, liabilities, demands, promises,
agreements, costs and expenses (including but not limited to attorneys’ fees), damages,
including liquidated damages or punitive damages, actions, and causes of action, of whatever
kind or nature, whether known or unknown, fixed or contingent, arising out of any act or
omission occurring before Executive’s execution of this Agreement, including but not limited
to:
(i) any claims based on, arising out of, or related to Executive’s employment
with, or the termination of employment with, Synovis;
(ii) any claims arising from rights under federal, state and/or local laws,
including but not limited to those related to any form of retaliation, harassment or
discrimination on any basis, or any related cause of action, and any labor code
provisions, including but not limited to, any alleged violation of Title VII of the
Civil Rights Act of 1964; The Civil Rights Act of 1991; Sections 1981 through 1988
of Title 42 of the United States Code, as amended; the Americans with Disability Act
of 1990, as amended; the Occupational Safety and Health Act, as amended; the Age
Discrimination in Employment Act; the Older Worker
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Benefits Protection Act; the Worker Adjustment and Retraining Notification Act;
the Family and Medical Leave Act; the Employee Retirement Income Security Act; the
Minnesota Human Rights Act; Minn. §§ 181.81; Minn. Stat. § 176.82; Minn. Stat. §§
181.931, 181.932, 181.935; and/or Minn. Stat. §§ 181.940—181.944;
(iii) any claims grounded in contract or tort theories, including but not
limited to breach of express or implied contract; tortious interference with
contractual relations or prospective economic benefit; promissory estoppel; breach
of promise; breach of manuals or other policies; fraud; misrepresentation;
defamation, including libel, slander, and self-publication defamation; negligence;
negligent hiring, supervision or retention; assault; invasion of privacy; false
imprisonment; infliction of emotional distress; harassment; or any other wrongful or
unlawful acts, omissions, statements or practices; and/or
(iv) any other claim of any kind whatsoever, including but not limited to any
claim for damages or declaratory or injunctive relief of any kind.
Notwithstanding any language contained herein to the contrary, this Agreement has no effect
on any accrued or vested benefits to which Executive is entitled under any employee benefit
plan.
Executive agrees, understands, and acknowledges that, except as expressly stated
herein, any and all claims which Executive has, had, or might have had against any of the
Released Parties are fully released and discharged by this Agreement.
(b) Synovis hereby forever releases and discharges Executive to the fullest extent
permitted by law from, and covenants not to xxx or otherwise institute or cause to be
instituted any legal or administrative proceedings against Executive with respect to, any
and all claims, debts, liabilities, demands, promises, agreements, costs and expenses
(including but not limited to attorneys’ fees), damages, including liquidated damages or
punitive damages, actions, and causes of action, of whatever kind or nature, whether known
or unknown, fixed or contingent, arising out of any act or omission occurring before
Executive’s execution of this Agreement, including but not limited to:
(i) any claims based on, arising out of, or related to Executive’s employment
with and performance of duties on behalf of Synovis;
(ii) any claims grounded in contract or tort theories, including but not
limited to breach of express or implied contract; tortious interference with
contractual relations or prospective economic benefit; promissory estoppel; breach
of promise; breach of manuals or other policies; fraud; misrepresentation;
defamation, including libel, slander, and self-publication defamation; negligence;
harassment; discrimination; or any other wrongful or unlawful acts, omissions,
statements or practices; and/or
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(iii) any other claim of any kind whatsoever, including but not limited to any
claim for damages or declaratory or injunctive relief of any kind related to
Executive’s former employment with Synovis.
6. No Admission of Liability. Executive agrees and acknowledges that nothing
contained in this Agreement shall constitute or be treated as an admission of liability or
wrongdoing by Synovis or any of the Released Parties. Synovis agrees and acknowledges that nothing
contained in this Agreement shall constitute or be treated as an admission of liability or
wrongdoing by Executive.
7. No Lawsuits. Executive warrants and represents that he has not filed any claims,
charges, complaints or actions against Synovis, or assigned or transferred or purported to assign
or transfer to any person or entity all or any part of or any interest in any claim released under
this Agreement. Executive also agrees that if any claim is prosecuted in his name before any court
or administrative agency that he waives and agrees not to take any award or other damages from such
suit. If any agency or court assumes jurisdiction of any complaints, claims, or actions against
Synovis or any of the Released Parties by or on behalf of Executive, he will direct that agency or
court to withdraw the matter or to dismiss the matter in its entirety, with prejudice, and will
execute all necessary documents to effect such withdrawal and/or dismissal with prejudice. To the
extent required by law, nothing contained in this Section will be interpreted to prevent Executive
from filing a charge with a governmental agency or participating in or cooperating with an
investigation conducted by a governmental agency.
8. ADEA Waiver. Executive specifically agrees and acknowledges: (a) that his waiver
of rights under this Agreement is knowing and voluntary as required under the Age Discrimination in
Employment Act (“ADEA”) and the Older Workers Benefit Protection Act (“OWBPA”); (b) that he
understands the terms of this Agreement; (c) that Synovis advises Executive to consult with an
attorney prior to executing this Agreement; (d) that Synovis has given him a period of up to
twenty-one (21) days within which to consider this Agreement; and (e) that, following his execution
of this Agreement, he has fifteen (15) days in which to rescind this Agreement as specified in
Section 9, and that, if he chooses not to so rescind, the Agreement shall then become effective and
enforceable and the payment listed above shall then be made to him in accordance with the terms of
this Agreement. Executive represents that if he signs this Agreement before the expiration of the
21-day review period, it is because Executive does not need any additional time to decide whether
to sign this Agreement.
9. Rescission. Executive may rescind this agreement by delivering written notice of
such rescission within fifteen (15) calendar days following his execution of this Agreement.
Executive understands that any such revocation must be in writing and delivered by hand or by
certified mail, return receipt requested, within the applicable period to the attention of Xxxxxxx
X. Xxxxx, President & CEO, Synovis Life Technologies, 0000 Xxxxxxxxxx Xxx. X., Xx. Xxxx, XX
00000-0000. Executive understands that if he exercises his right to rescind, then Synovis will
have no obligations under this Agreement to Executive or to others whose rights derive from him.
The Agreement shall not become effective or enforceable until the fifteen (15) day rescission
period identified above has expired. The terms of this Agreement shall be open for acceptance by
Executive for a period of twenty-one (21) days, and he understands that he should and Synovis
hereby advises him to, consult with legal counsel regarding the releases contained
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herein and to consider whether to accept Synovis’s offer and sign the Agreement. Revocation
or rescission by Executive will have no effect upon Executive’s termination.
10. Continuing Obligations. Notwithstanding any other provision in this Agreement,
this Agreement does not affect Executive’s continuing obligations under any confidentiality
agreement or intellectual property agreement that he has signed with Synovis, including but not
limited to Executive’s Employee Patent and Confidential Information Agreement, signed December 5,
2008; Executive’s Employee Confidentiality and Work For Hire Agreement, signed March 29, 2004; and
Executive’s Employee Patent and Confidential Information Agreement, signed December 23, 1997.
Other than as set forth herein, Synovis acknowledges that it is unaware of any other agreements
between Executive and Synovis whereby Executive is bound by continuing confidentiality or
intellectual property obligations.
11. Cooperation and Assistance. Upon request, Executive agrees to be reasonably
available for consultation by telephone and correspondence over the period from the Separation Date
until July 31, 2010, and will give reasonable assistance and cooperation in any matter relating to
Executive’s expertise, experience, or job duties at Synovis. Executive agrees that he shall not be
entitled to any compensation for any such assistance or cooperation.Synovis shall make reasonable
efforts in the context of any consultation with Executive to prevent the disclosure to Executive of
confidential, proprietary or other information, the disclosure of which would impose restrictions
on Executive’s ability to exercise or sell his vested stock options in compliance with legal
requirements.
12. Proprietary Information and Return of Synovis Property. As a free and voluntary
act, and as a condition precedent to the payments payable pursuant to this Agreement, Executive
agrees to immediately return, and in the case of documents, data or information retain no copy of,
all Synovis property, if any, in his possession, including but not limited to personal property,
documents, data, or confidential and/or proprietary information, no later than two (2) days after
the execution of this Agreement. Executive understands, acknowledges and agrees that whether or
not Executive signs this Agreement, he has a common law obligation to protect the confidentiality
of Synovis’s confidential and trade secret information after the termination of Executive’s
employment for so long as the information remains confidential.
13. Successors and Assigns. Executive represents and warrants that he has not
assigned or transferred any portion of any claim or rights he has or may have to any other person,
firm, corporation or any other entity, and that no other person, firm, corporation, or other entity
has any lien or interest in any such claim. Executive further understands and agrees that this
Agreement is personal to Executive and may not be assigned by him without the written agreement of
Synovis. The rights and obligations of this Agreement shall inure to the successors and assigns of
Synovis.
14. Entire Agreement. This Agreement contains the sole offer and full agreement
between Executive and Synovis relating to Executive’s employment with Synovis and the termination
of such employment and may not be modified, altered, or changed in any way except by written
Agreement signed by both Parties. The Parties agree that this Agreement supersedes and terminates
any and all other written and oral agreements and understandings between the parties with respect
to Executive’s employment, including, but not limited to any such
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agreements and/or understandings concerning benefits to which Executive may otherwise have
been eligible or entitled, except as otherwise expressly stated herein. The Parties agree this
resolves all of Executive’s claims to any compensation and benefits owed to Executive and that
Executive shall have no claim with respect to payments under the Management Incentive Plan (or
MIP), and 2010 Major Business Objectives (MBO), or any other incentive program and no claim to any
unvested stock options or other equity awards.
15. Severability. Whenever possible, each provision of this Agreement shall be
interpreted in such a manner as to be effective and valid under applicable law and to carry out
each provision herein to the greatest extent possible, but if any provision of this Agreement is
held to be void, voidable, invalid, illegal or for any other reason unenforceable, the validity,
legality and enforceability of the remaining provisions of this Agreement will not be affected or
impaired thereby, and will be interpreted so as to effect, as closely as possible, the intent of
the Parties hereto.
16. Non-Reliance on Other Parties. Except for statements expressly set forth in this
Agreement, neither of the Parties has made any statement or representation to any other Party
regarding a fact relied on by the other Party in entering into this Agreement, and no Party has
relied on any statement, representation, or promise of any other Party, or attorney for any other
Party, in executing this Agreement or in making the settlement provided for in this Agreement.
17. Negotiated Agreement. The terms of this Agreement are contractual, not a mere
recital, and are the result of negotiations between the Parties. Accordingly, neither of the
Parties shall be deemed to be the drafter of this Agreement.
18. Applicable Law. This Agreement shall be construed in accordance with, and
governed by, the laws of the State of Minnesota without taking into account conflict of law
principles.
19. Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together constitute one and the same
instrument, binding on the Parties.
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VOLUNTARY AND KNOWING AGREEMENT: EXECUTIVE ACKNOWLEDGES AND AGREES THAT EXECUTIVE HAS
CAREFULLY READ AND FREELY AND VOLUNTARILY SIGNED THIS AGREEMENT; THAT EXECUTIVE HAS HAD AT LEAST 21
DAYS TO CONSIDER AND REVIEW THE AGREEMENT; THAT EXECUTIVE HAS HAD AN OPPORTUNITY TO CONSULT WITH AN
ATTORNEY OF EXECUTIVE’S CHOICE; AND THAT EXECUTIVE SIGNS THIS AGREEMENT WITH THE INTENT OF
RELEASING SYNOVIS FROM ANY AND ALL ACTUAL OR POTENTIAL CLAIMS.
ACCEPTED AND AGREED TO:
| May 25, 2010 | May 25, 2010 | |||||
| SYNOVIS LIFE TECHNOLOGIES | EXECUTIVE | |||||
| By: | /s/ Xxxxxxx X. Xxxxx | /s/ Xxxxx Xxxxx | ||||
| Name: Xxxxxxx X. Xxxxx | Name: Xxxxx Xxxxx | |||||
| Its: President & CEO | Address: | |||||
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