SEVERANCE AND RELEASE AGREEMENT
EXHIBIT 10.1
Private and Confidential
SEVERANCE AND RELEASE AGREEMENT
THIS SEVERANCE AND RELEASE AGREEMENT (“Agreement”) is made and entered into as of
February 26, 2007 (the “Effective Date”) by and between Xxxxxxx X. Xxxxxxx (“Employee”) and Xxxxxx
Medical Technology, Inc. (“Company”).
DEFINITIONS:
A. As used herein, the term “Employee” shall mean Xxxxxxx X. Xxxxxxx, Employee’s heirs,
personal representatives, and assigns.
B. As used herein, the term “Company” shall mean Xxxxxx Medical Technology, Inc., its parent,
subsidiaries, affiliates and divisions (including, but not limited to, Xxxxxx Medical Group, Inc.),
its and their respective successors and assigns, and all of the past and present officers,
directors, employees and agents of such entities, 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 the Company
occurring prior to and up to the effective date of this Agreement, including, but not limited to,
any and all breach of contract claims, common law tort claims, claims of discrimination, claims for
compensation and benefits (including claims under the Employee Retirement Income Security Act of
1974, as amended), as well as any and all 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. The Company
represents to the 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 the Employee. The Employee shall be entitled
to indemnification by the Company for acts arising in the course of the Employee’s employment in
accordance with and subject to the indemnification provisions contained in the Certificate of
Incorporation and/or Bylaws of the Company as in effect from time to time.
2. Employee agrees to resign from the position of Senior Vice President and Chief Technology
Officer and as an officer of the Company’s affiliates or subsidiaries as and when requested by the
Company. The Employee’s employment with the Company will be terminated at the close of business on
April 5, 2007 (the “Termination Date”).
3. The Employee certifies that (a) this Agreement is fully understood by the Employee and is
entirely satisfactory to the Employee, (b) the Employee’s signing of this Agreement is the
Employee’s own free and informed act and deed, and (c) the Employee has been given the opportunity
to discuss it with counsel of the 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 agree that each will maintain
the strictest secrecy and will not disclose the terms of this Agreement to any person or entity,
except (a) where such disclosure is required by law or compelled pursuant to legal process, (b) for
reporting purposes to federal, state, or local governmental authorities, or (c) in discussions with
legal and financial advisors and the Employee’s immediate family members. 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. The Company shall not
take any action or make any statement to disparage, demean, or embarrass the Employee. The Company
shall confirm the last job title of Employee and confirm the dates of employment for Employee. The
Company shall provide Employee with a letter of reference which is attached to this Agreement.
6. With respect to the Employment Agreement dated as of November 22, 2005 between the Company
and the Employee (collectively, the “Employment Agreement”), the Employee agrees (a) that the
Employee is not entitled to any compensation or benefits under the Employment Agreement other than
as provided in paragraphs 4, 5, and 6 thereof through the Effective Date; (b) to comply with the
covenants and to perform his obligations in full under the provisions of paragraphs 9, 10 and 11 of
the Employment Agreement; and (c) that in the event of any breach or threatened breach by the
Employee of any provision of paragraphs 9,
10 and 11 of the Employment Agreement, the Company shall
be entitled to any and all rights and remedies available to the Company under paragraphs 11(c) and
12 of the Employment Agreement or otherwise.
7. The Employee hereby delivers to the Company an executed original of the ADEA Release and
Agreement attached hereto as Exhibit A, which releases the Company from any and all liabilities
under the Age Discrimination in Employment Act of 1967, as amended.
8. Upon request by the Company, the Employee agrees to cooperate with the Company during the
Severance Period (as defined herein), without further compensation by the Company other than for
reasonable and necessary expenses, by meeting with and providing information to the Company’s
representatives and others relating to the Employee’s duties performed heretofore or any
governmental or other investigation or litigation involving or affecting the Company. After the
Severance Period, the Employee agrees to further cooperate with the Company as provided above, and
the Company agrees to compensate the Employee for the time and expenses related to such cooperation
on a reasonable and customary basis. The person through whom this information shall be requested
by the Company will be the Employee’s direct report as the date of this Agreement or such person’s
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 arbiter.
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, together with paragraphs 9, 10, 11 and 12 of the Employment Agreement,
reflect the entire agreement of the parties relating to the subject matter hereof and supersede all
prior or contemporaneous oral or written understandings, statements, representations, promises,
arrangements or agreements between the parties. The Confidentiality and Inventions Agreement
between the parties remains in full force and effect.
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 consideration and exchange for this Agreement and the ADEA Release and Agreement, the
Company shall provide to the Employee the following:
(a) an amount in cash equal to the Base Salary (as defined in the Employment Agreement) of the
Employee with respect to a period of twelve (12) months after the Termination Date (the “Severance
Period”), which amount (after deduction of applicable payroll taxes) shall be paid to the Employee
in accordance with the Company’s customary payroll practices in effect from time to time and with a
final payment of the remaining balance on March 10, 2008;
(b) an amount in cash equal to the Base Salary equivalent of the Employee’s earned and unused
vacation for 2007, if any, which amount (after deduction of applicable payroll taxes) shall be paid
to the Employee within thirty (30) days after the Termination Date;
(c) an amount in cash equal to the total premiums payable by the Employee for continued group
medical, dental and vision plan coverage under COBRA at the current COBRA rate during the twelve
(12) month period immediately following the Termination Date, which amount (after deduction of
applicable payroll taxes) shall be paid to the Employee within thirty (30) days after the
Termination Date;
(d) professional outplacement services provided by Xxxxxxx, Xxxxxxxxxx & Associates at the
Executive Career Transition Program; and
(e) the attorney’s fee for review of this Agreement and the ADEA Release and Agreement of up
to $200, which amount shall be paid to the Employee within thirty (30) days after the Effective
Date.
Any stock options that the Employee has are governed by the specific stock option agreement
and the applicable stock option plan, and this Agreement does not supersede those stock option
agreements and plans. The Employee is urged to review such stock option agreements and plans for
the specific terms that apply to his stock options.
THE EMPLOYEE ACKNOWLEDGES THAT EMPLOYEE READ THIS SEVERANCE AND RELEASE AGREEMENT, THAT
EMPLOYEE UNDERSTANDS ALL OF ITS TERMS AND EXECUTES IT VOLUNTARILY AND WITH FULL KNOWLEDGE OF ITS
SIGNIFICANCE AND THE CONSEQUENCES THEREOF.
AGREED AND ACCEPTED as of the Effective Date.
| EMPLOYEE: | XXXXXX MEDICAL TECHNOLOGY, INC. | |||||
/s/ Xxxxxxx X. Xxxxxxx
|
By: | /s/ Xxxxx X. Xxxx
|
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Xxxxxxx X. Xxxxxxx
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Xxxxx X. Xxxx, Vice President | |||||
| Title: | General Counsel and Secretary | |||||
| Mar 30 2007 | ||||||
Private and Confidential
EXHIBIT A
ADEA RELEASE AND AGREEMENT
As a material inducement to Xxxxxx Medical Technology, Inc. (hereinafter referred to as
“Xxxxxx” or “Employer”) to enter into this ADEA Release and Agreement (the “Release or “Agreement”)
with Xxxxxxx X. Xxxxxxx (hereinafter referred to as “Employee”) (for Employee, Employee’s heirs,
executors, administrators and assigns), Employee hereby unconditionally releases and forever
discharges Xxxxxx and each of the Xxxxxx’x 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, as amended from time to time, 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’x 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.
To comply with the Older Workers Benefit Protection Act of 1990, as amended from time to time,
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 agrees to provide the items listed previously in
paragraph 12 of the Severance and Release Agreement dated February 26, 2007. The Employee enters
into this Release with full knowledge of its contents and enters into this Agreement voluntarily.
ADEA Release and Agreement February 26, 2007 Page 2 |
Private and Confidential |
AGREED AND ACCEPTED
| EMPLOYEE: | XXXXXX MEDICAL TECHNOLOGY, INC. | |||||||
| 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. | ||||||||
| /s/ Xxxxxxx X. Xxxxxxx | By: | /s/ Xxxxx X. Xxxx | ||||||
| Xxxxxxx X. Xxxxxxx | Xxxxx X. Xxxx, Vice President | |||||||
| Title: | General Counsel and Secretary | |||||||
| SWORN TO AND SUBSCRIBED, before me, a Notary Public, in my presence this 22nd day of March, 2007 | SWORN TO AND SUBSCRIBED, before me, a Notary Public, in my presence this 30th day of March, 2007 | |||||||
(SEAL)
|
/s/ Xxxxx Xxxxxx
|
/s/ Xxxxxx X. XxXxxxxxxx
|
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| County of Xxxxxx | Xxxxxx County (SEAL) Tennessee |
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| State of Tennessee | ||||||||
| My Commission Expires: July 28, 2009 | My Commission Expires: 1-29-2008 | |||||||
NOTE: EMPLOYEE IS HEREBY ADVISED OF THE 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., ATTENTION: GENERAL COUNSEL, 0000
XXXXXXX XXXX, XXXXXXXXX, XX 00000, WITHIN SEVEN (7) DAYS. NO CONSIDERATION SHALL BE CONVEYED UNTIL
SUCH TIME PERIOD HAS EXPIRED.
