EXHIBIT 10
RESIGNATION AGREEMENT AND RELEASE
THIS RESIGNATION AGREEMENT AND RELEASE ("Agreement") is
entered into as of September 22, 1999 by XXXXXX X. XXXXXXXX
("Xxxxxxxx") and XXXXXXX CORPORATION ("Stryker"). As used in the
Agreement, "Stryker" shall include Stryker, its subsidiaries and
divisions, and its present and past directors, officers,
employees, agents, and representatives.
Xxxxxxxx has been employed by Stryker since September
1, 1975, and presently holds the positions of Vice President of
Stryker Corporation and Group President of the MedSurg Division.
Xxxxxxxx and Stryker have determined that it is in their mutual
best interests to fully and finally resolve and settle Xxxxxxxx'
employment status. The terms and conditions to which Xxxxxxxx
and Stryker have agreed are set forth in this Agreement.
In consideration of the mutual promises and
undertakings of the parties, it is hereby agreed as follows:
1. Resignation. Xxxxxxxx voluntarily resigns as Vice
President of Stryker Corporation and Group President of Stryker's
MedSurg Division effective September 30, 1999. In addition,
Xxxxxxxx resigns from any corporate role as director, officer or
other position of authority formally or informally designated
effective September 30, 1999. From October 1, 1999 through May
31, 2002, Xxxxxxxx shall be employed by Stryker as an advisor to
Stryker's Chief Executive Officer ("CEO") and Board of Directors;
Xxxxxxxx will perform duties as assigned by Stryker's CEO and
will report to the CEO. Xxxxxxxx voluntarily and irrevocably
resigns from his employment with Stryker in any capacity or
position effective May 31, 2002 and waives any claim or request
for reinstatement of his employment in any capacity or position
with Stryker.
2. Compensation.
a. Base Compensation. Stryker agrees to pay
Xxxxxxxx his base salary compensation in effect as of the
date of this Agreement, in monthly installments, in the
amount of Thirty Three Thousand Three Hundred and Thirty-
three Dollars ($33,333.33), less all applicable federal,
state and local withholding taxes, from October 1, 1999
through December 31, 2000. Stryker agrees to pay Xxxxxxxx
One Thousand Dollars ($1,000.00) per month, less all
applicable federal, state and local withholding taxes, as
base salary compensation for the period from January 1, 2001
through May 31, 2002.
b. Compensation - Incentives. Stryker agrees to
pay Xxxxxxxx his full annual 1999 incentive compensation of
$350,000 by no later than February 15, 2000. Such incentive
compensation shall be subject to appropriate federal, state
and local withholding taxes.
c. Compensation - Incidentals. Stryker will
reimburse Xxxxxxxx for all appropriate incidental expenses
related to his employment through May 31, 2002, consistent
with Stryker's policies, as presently constituted or as
amended.
3. Benefits. For the period of October 1, 1999 through May 31,
2002, Stryker will continue to pay its regular share of premiums
for Xxxxxxxx' participation in Stryker's health insurance
program, as presently constituted or as amended. For the period
after May 31, 2002, Xxxxxxxx may continue to participate in
Stryker's health insurance program pursuant to COBRA provided
that he makes timely premium payments in accordance with COBRA.
4. All Other Insurance Benefits. From October 1, 1999 through
May 31, 2002, Xxxxxxxx shall be eligible to receive all other
insurance benefits provided by Stryker to its top level executive
team as presently constituted or as amended. By way of
definition, those insurance benefits cover the following:
a. short term disability
b. long term disability
c. life insurance
5. Retirement Benefits. Xxxxxxxx shall receive
contributions and vesting credit to the following qualified
retirement plans during the term of his employment through May
31, 2002:
x. Xxxxxxx Corporation 401(k) Savings &
Retirement Plan
x. Xxxxxxx Corporation Supplemental Savings &
Retirement Plan
Xxxxxxxx shall participate and receive benefits from these
plans consistent with the plan documents and ERISA.
6. Stock Options. Xxxxxxxx currently holds the
options to purchase Stryker Common Stock that are described, as
to grant date, number of shares covered, purchase price and
vesting schedule, on Attachment A hereto (collectively, the
"Options"). The Options were granted to Xxxxxxxx under either
the 1988 Stock Option Plan or the 1998 Stock Option Plan of
Stryker (collectively, the "Plans"), as indicated on Attachment
X. Xxxxxxx agrees that, notwithstanding Xxxxxxxx' voluntary
resignation effective May 31, 2002, the Options shall continue to
vest in accordance with the schedule set forth on Attachment A
and that each Option shall remain exercisable for the period of
ten (10) years from the date of grant thereof indicated on
Attachment A; provided, however, that all Options shall
terminate, and may not thereafter be exercised, in the event that
Xxxxxxxx violates the non-competition provisions of paragraph 13
of this Agreement. The approval of this Agreement by Stryker's
Board of Directors and the Stock Option Committee appointed
pursuant to the Plans constitutes the amendment of the Options
and of the Plans with respect to the Options to the extent that
the foregoing provisions would otherwise be inconsistent
therewith.
7. Personnel Records. Xxxxxxxx' permanent personnel
record at Stryker will reflect his voluntary resignation from the
company effective May 31, 2002.
8. References. The parties agree that as to any
person or entity that seeks an employment reference for Xxxxxxxx,
that Stryker will offer the following information:
a. positions held
b. dates of employment
9. Release. Xxxxxxxx, for himself and for his heirs,
personal representatives, successors and assigns, hereby releases
and forever discharges Stryker from all claims, causes of action,
demands, rights, damages, liability, costs or expenses, of every
kind and description, whether known or unknown, which he now has
or has ever had in the past, of every nature or cause, arising
out of or in any way connected, directly or indirectly, with
Xxxxxxxx' employment with Stryker or the termination of that
employment. This release includes, but is not limited to, claims
of discrimination based on age, race, color, national origin,
ancestry, religion, marital status, sex, citizenship status,
medical condition or disability, height, weight, or any other
legally protected characteristic or preference; claims of sexual,
racial, religious or other harassment; breach of implied or
express contract, including the covenant of good faith and fair
dealing; intentional interference with contractual relations or
prospective economic advantage; negligent or intentional
misrepresentation; negligence; fraud; estoppel or reliance;
defamation, slander, or libel; negligent and intentional
infliction of emotional distress; violation of public policy;
wrongful or constructive discharge; invasion of privacy;
violation of the Fair Labor Standards and applicable state and
local wage and hour laws; violation of the Worker Adjustment and
Retraining Act; and any claim of any type whatsoever, whether
based on contract or tort, or any federal, state or local
statute, regulation, rule or ordinance, including the Michigan
Xxxxxxx-Xxxxxx Civil Rights Act, Title VII of the Civil Rights
Act of 1964, the Employee Retirement Income Security Act, the Age
Discrimination in Employment Act of 1967, as amended 29 U.S.C.
621 et seq., or any theory or law. As used in this paragraph
"Stryker" shall describe collectively Stryker Corporation and its
affiliates, subsidiaries, divisions, parent and sister companies,
trustees, officers, directors, shareholders, representatives,
agents, employees, attorneys, successors, assigns, and any
employee benefit plan or funds established, sponsored or
administered by any of them.
10. Trade Secrets and Confidential and Proprietary
Information. Xxxxxxxx agrees that, except as may otherwise be
required by law, he will at no time disclose to any third party,
nor use for his own benefit or for the benefit of any third
party, any trade secrets, confidential information or proprietary
information concerning the financial and business affairs of
Stryker. "Confidential and proprietary information" includes,
but is not limited to, financial, cost and pricing information;
business, marketing, and sales plans and strategies; information
concerning Stryker's product development and intellectual
property; information concerning Stryker's manufacturing
processes; information concerning Stryker's products that is not
in the public domain; computer programs and software; information
concerning the employment and performance of Stryker's employees;
and any information whatsoever about the business and practices
of Stryker that was obtained by him during the course of his
employment with Stryker. Xxxxxxxx agrees that he shall not
retain any documents or information concerning Stryker and will
return any and all such documents and information directly to
Stryker.
11. Stryker Property. Within seven (7) days of
September 30, 1999, Xxxxxxxx will return to Stryker any and all
property in his possession which belongs to Stryker, including
the following: all keys and security and credit cards; all
strategic plans, budget books, and other financial, planning,
marketing, strategic, and product development documents; all
equipment, products, samples, inventory, tools, computers and
software; all customer files, customer lists account files, price
lists, product information, and training manuals; all information
relating to the performance and employment of Stryker employees;
financial information in any form; and all other documents
relating to Stryker's business, products, personnel and
customers.
12. Communications. The parties agree that, at all
times, they will refrain from taking any actions or making any
statements, oral or written, which have the purpose or effect of
(a) injuring or in any way detracting from the reputations of
Xxxxxxxx or of Stryker, its subsidiaries and divisions, and its
present and former directors, officers, and employees, or (b)
causing any person or entity to refrain from or cease any
employment or business relationship with each other.
13. Non-competition.
13.1 Purpose. In the course of Xxxxxxxx'
employment with Stryker, Xxxxxxxx had and continues to have
access to information concerning Stryker's strategic plans
and business and marketing strategies; financial, cost, and
pricing information; products and product development
activities; customers; manufacturing and operating
techniques and practices; employees and their performance
with Stryker; as well as other confidential and proprietary
information. Xxxxxxxx recognizes that Stryker has made a
substantial investment in him, that the information provided
to Xxxxxxxx has been confidential and provides Stryker an
advantage. Further, Xxxxxxxx recognizes that Stryker's
relationships with its customers, vendors, and other
business relationships are of substantial value to the
corporation. Therefore, Xxxxxxxx acknowledges that the
following restrictions are reasonable to protect Stryker's
legitimate business interest in its strategic plans,
business information, customers, customer relationships,
employment relationships and other business relationships,
and that Xxxxxxxx will be able to earn a living without
violating the restrictions of this Agreement.
13.2 Restrictions. During the period from October
1, 1999 through May 31, 2002, Xxxxxxxx will not work for or
provide assistance to any business that is in competition
with Stryker. This promise not to compete includes, but is
not limited to, the promise that Xxxxxxxx will not engage in
any of the following activities:
a. Work, as an employee, officer, director,
consultant, partner, joint venture participant, or in
any other fashion, for any competitor of Stryker;
b. Attempt to persuade any customer,
supplier, or potential customer or supplier of Stryker
that they should not do any business with Stryker or
should reduce their purchases of Stryker's products or
services, or interfere in any way with the business
relationship between Stryker and any of its customers,
suppliers or potential customers or suppliers;
c. Solicit, encourage or persuade any
employee of Stryker to terminate his or her employment
with Stryker and work for, or become associated with,
any competitor of Stryker.
13.3 Non-competition Period. The term of this non-
competition period is from October 1, 1999 through May 31,
2002. Xxxxxxxx understands and agrees that this non-
competition provision (paragraph 13) shall be binding upon
Xxxxxxxx irrespective of the nature or duration of Xxxxxxxx'
employment by Stryker or the amount of Xxxxxxxx' salary or
wages during this period.
13.4 Consideration. Xxxxxxxx acknowledges the
receipt of the compensation provided under this Agreement as
sufficient consideration for entering into this Agreement,
and particularly for entering into the non-competition
provisions of paragraph 13 of this Agreement.
14. No Admission of Liability. The parties agree that
nothing contained in this Agreement and no actions taken by
either party with respect to this Agreement shall be construed as
an admission by either party of any liability or obligation, all
such liability or obligation being expressly denied.
15. Acknowledgments. Xxxxxxxx expressly acknowledges
the following:
a. He hereby has been advised in writing to
consult with an attorney before signing this Agreement.
b. He hereby has been advised that this
Agreement provides for the release by Xxxxxxxx of any claim
that he may have under the Age Discrimination in Employment
Act of 1967, as amended, 29 U.S.C. 621, et seq., along with
the release of other claims that he may have as described
and agreed in paragraph 9 of this Agreement.
c. He has been given at least twenty-one (21)
days to consider this Agreement before signing it.
d. He understands that this Agreement will not
become effective or enforceable until seven (7) days after
he signs it and that he may revoke this Agreement during the
seven-day period by contacting Xxxxxx X. Xxxxxx, Vice
President, Administration, of Stryker Corporation. If
Xxxxxxxx properly revokes this Agreement, he understands
that he will not receive any of the payments and benefits to
which he was not otherwise entitled. Xxxxxxxx further
understands that seven days after execution of this
Agreement, this Agreement will become effective and
enforceable without any further action by Xxxxxxxx or
Stryker.
e. He agrees that the payments and benefits to
be provided to him under this Agreement are payments and
benefits to which he would not otherwise have been entitled
if he did not enter into this Agreement.
16. Review and Consultation. Xxxxxxxx and Stryker
acknowledge that they have each had sufficient opportunity to
review the terms of this Agreement and to consult with advisors
and attorneys of their choice concerning its terms and
conditions. Xxxxxxxx acknowledges that he fully and completely
understands the terms of this Agreement and their significance,
and that he accepts those terms and enters into this Agreement
freely and voluntarily thereby binding himself, his heirs,
successors, personal representatives and assigns.
17. Attorneys Fees. Nothing contained herein shall be
interpreted to render any party a prevailing party for any
reason, including but not limited to an award of costs or
attorneys fees.
18. Choice of Law, Forum Selection, and Remedies.
This Agreement shall in all respects be governed by the laws of
the State of Michigan. Any legal action or claim relating to the
terms of this Agreement shall be filed, heard and decided
exclusively in the Circuit Court for the County of Kalamazoo,
Michigan, and the parties hereby consent to the personal
jurisdiction and venue of that Court. The parties further agree
that: (a) any breach or threatened breach of paragraph 10 (Trade
Secrets and Confidential and Proprietary Information), paragraph
12 (Communications), and paragraph 13 (Non-competition) of this
Agreement would cause irreparable harm to Stryker; (b) a remedy
at law or in damages would be inadequate to remedy such a breach
or threatened breach; (c) the provisions of paragraphs 10, 12,
and 13 of this Agreement may be enforced by way of a restraining
order or injunction, in addition to any other remedies which may
be available by law; and (d) the non-prevailing party in any
action to enforce these provisions shall be liable for the
reasonable attorneys fees and costs incurred by the prevailing
party.
19. Severability. All agreements and covenants set
forth within this Agreement are severable. In the event any of
them shall be held to be invalid by any competent court, this
Agreement shall be interpreted as if such invalid agreement or
covenant were not contained within this Agreement and such
invalid agreement or covenant shall be interpreted and applied so
that it is enforceable to the fullest extent allowable by law.
20. Waivers. Xxxxxxxx reserves any rights he may have
to claim workers' compensation, unemployment compensation, COBRA
benefits, and other vested benefits. Xxxxxxxx waives any
procedural requirements or rights created by any bylaws,
personnel policies, benefit statements or summaries, or contracts
of employment (written or unwritten), except as set forth in this
Agreement.
21. Confidentiality. The parties shall keep the terms
and provisions of this Agreement confidential, and shall not
disclose or discuss any of the terms of this Agreement to or with
other persons or entities except as required by law or in order
to enforce the terms of this Agreement.
22. Entire Agreement. This Agreement and the
Employment Agreement contains the entire understanding of the
parties, and there are no additional promises, representations,
assurances, terms or provisions between the parties. This
Agreement may not be amended except in writing signed by Xxxxxxxx
and a duly authorized officer of Company.
STRYKER CORPORATION
____________________________________ By:_________________________
Xxxxxx X. Xxxxxxxx
Its:_________________________
