EXHIBIT 10.38
December 18, 2001
Xxxxx X. Xxxxxxxx
00000 Xxxxxxxxxx Xx.
Xxxxxxx Xxxxx, XX 00000
Re: Severance Agreement
Dear Xxxxx:
The purpose of this agreement is to document the terms and conditions of the
severance package to which you shall be entitled to should your employment with
Radiance Medical Systems Inc. (the "Company") terminate for any reason other
than cause.
You may terminate your employment with the Company and still be entitled to
receive the severance outlined in this agreement if the termination is for good
reason.
1) Termination for Good Reason means your employment pursuant to this Agreement
is terminated by you as a result of any of the following:
a) Without your prior written consent, a reduction in your then current
Base Salary;
b) Without your prior written consent, a relocation of your place of
employment outside of Orange County, California;
c) A material reduction in your duties and responsibilities following a
Change in Control or Corporate Transaction;
d) The Company materially breaches any provision of this Agreement:
i) In no event shall Termination for Good Reason be deemed to occur
should your employment terminate by reason of your permanent
disability as defined under the Company's long-term disability
program or your death.
2) We would expect you to cooperate in assuring a smooth and orderly transition
of your duties and responsibilities as requested by the Company. You also
agree to refrain from making any disparaging comments about the Company, its
products, and its personnel. In response to any inquiries about you from
prospective employers, the Company will confirm only your dates of
employment, title, final rate of pay, and the fact that your position was
eliminated, provided you direct all such inquiries to the CEO.
3) We will expect to be able to contact you after your last day, then during
the term of the severance benefits, on any necessary documents and items
related to your position.
4) In consideration for this agreement, the Company will provide the following
severance benefits when this agreement takes effect:
i) The Company will continue paying your current base salary for 6-months
after your termination date through its regular bi-weekly payroll, minus
appropriate withholding and payroll deductions.
5) Since these benefits go beyond what you are entitled to under the Company's
policies, you agree that this severance agreement constitutes a full and
final settlement of any and all claims, known or unknown, of any kind that
you or your spouse or dependents may have to date against the Company or any
of its affiliated companies or any of their officers, directors,
shareholders, employees, insurers, agents, successors, or assigns, and you
agree to dismiss and never to bring any legal or administrative action
based on any such claim. This includes but is not limited to claims arising
from your hiring, employment, compensation, or termination, or arising under
equal employment laws such as Title VII of the Civil Rights Act of 1964, the
Age Discrimination in Employment Act, the Older Workers Benefit Protection
Act, the Americans with Disabilities Act, the California Fair Employment and
Housing Act, but excludes any actions necessary to enforce this agreement.
6) You agree to keep this agreement, including the fact and amount of pay and
benefits, strictly confidential to the fullest extent allowed by law, but
you may disclose it to your attorney or accountant.
7) You acknowledge that you are entering into this agreement freely and
voluntarily, with a full understanding of its terms including the release of
all claims. I would advise you to consult an attorney if you so desire
before executing this agreement.
8) This Agreement constitutes a valid obligation of the Company, and is legally
binding on and enforceable against the Company in accordance with its term
except as such enforceability may be limited by (i) bankruptcy, insolvency,
moratorium or other similar laws affecting employee rights or creditors'
rights and (ii) general principles of equity relating to the availability of
equitable remedies (regardless of whether such agreements are sought to be
enforced in a proceeding at law or in equity).
9) This Agreement shall inure to the benefit of and shall be binding upon the
Company, its successors and assigns.
10) You agree that this letter sets forth all of the terms of your agreement
with the Company and that no other promises or assurances were made to
induce you to sign this agreement. This letter supersedes all other
agreements, except that any other agreements you have with the Company
concerning confidential information or assignment of inventions, and the
Company's At-will policy shall remain in effect.
11) NO EMPLOYMENT OR SERVICE CONTRACT: Nothing in this Agreement is intended to
provide you with any right to continue in the employ of the Company (or any
subsidiary) for any period of or interfere with or otherwise restrict in any
way your rights or the rights of the Company (or any subsidiary), which
rights are hereby expressly reserved by each. The Company reserves the right
to terminate your employment at any time for any reason whatsoever, with or
without cause, except as otherwise provided in any written employment
agreement between you and the Company.
If you elect not to sign this letter, it shall be null and void.
Sincerely, I agree to the terms stated in this letter.
/s/ XXXXXXX XXXXX /s/ XXXX XXXXXXXX
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Xxxxxxx Xxxxx Xxxx Xxxxxxxx Date 12/18/01
President/CEO ----------
