EXHIBIT 10 (xix)
SEVERANCE AGREEMENT
AND GENERAL RELEASE
Lumex, Inc., its successors, predecessors, assigns, related
companies, employees, agents, and directors ("Lumex") and Xxxxxx
XxXxxxx ("Xx. XxXxxxx") hereby agree as follows:
Lumex's Promises
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In return for Xx. XxXxxxx'x permanent resignation of his
employment and his waiver of claims contained herein, Lumex makes the
following promises:
1. Lumex shall continue to employ Xx. XxXxxxx in his present
capacity for a period of time hereinafter called the "Transitional
Period", under the same terms and conditions as his current
employment. This Transitional Period will end on September 1, 1996,
except that Lumex may at its option extend the Transitional Period
through March 31, 1997, or through any date between September 1 and
March 31, 1997.
2. Following the Transitional Period, Lumex shall pay Xx.
XxXxxxx severance pay at the rate of $15,750.00 per month, less
appropriate tax withholdings and other applicable payroll deductions,
for a period of twenty-eight (28) months. This 28-month period shall
hereinafter be called the "Severance Period."
3. In addition to the payments described in paragraph 2 above,
Lumex shall pay to Xx. XxXxxxx at the end of the
Transitional Period a supplemental severance bonus in the amount of
$47,250.00, plus payment for any unused accrued vacation time.
4. For the first twelve months of the transitional period,
Lumex shall provide continued health insurance benefits to Xx.
XxXxxxx, provided that Xx. XxXxxxx shall prepay to Lumex the premiums
for such insurance on a monthly basis, in the same manner as former
Lumex employees prepay insurance premiums under the COBRA law. After
this twelve-month period is over, Lumex shall permit Xx. XxXxxxx to
pay the premiums for continued health insurance coverage pursuant to
the COBRA law. Lumex's obligations under this paragraph shall be
deemed fully satisfied if it uses its best efforts to provide
continued health insurance benefits under the conditions set forth in
this paragraph. If for any reason continued health insurance coverage
is not available under the conditions set forth in this paragraph,
despite Lumex's best efforts, then Xx. XxXxxxx shall have no claim
against Lumex under this paragraph. The health insurance benefit to
be provided pursuant to this paragraph shall be the same such benefit
as Lumex provides during the month in question for its highest-ranking
corporate executives.
5. Lumex will pay up to $5,000.00 for outplacement services
provided to Xx. XxXxxxx.
6. In the event that a "Change of Control" occurs, as
hereinafter defined, all payments still required to be made by
Lumex to Xx. XxXxxxx under this Agreement shall be accelerated, and
due within thirty days of the date of the closing of the transaction
that gave rise to the Change of Control. "Change of Control" means
either of the following: (a) a change of control of such a nature that
would be required to be reported in Lumex's proxy statement under the
Securities Exchange Act of 1934, as amended, and that has been
consummated; (b) the approval by Lumex's Board of Directors of a sale
of all or substantially all of Lumex's assets to any unrelated third
party and the consummation of such transaction. Notwithstanding the
above, a sale of Lumex's rehabilitation product line or any part
thereof shall not be deemed a "Change in Control," and no transaction
shall be deemed a "Change in Control" unless and until it has been
consummated through a closing.
7. Lumex will permit Xx. XxXxxxx to revoke this Agreement
within seven (7) days after he signs it, as provided in paragraph 20
below.
8. Lumex shall have no obligation to Xx. XxXxxxx whatsoever
other than as set forth in this Agreement, and as required by law. No
promises have been made to Xx. XxXxxxx other than as set forth in this
Agreement. This Agreement supersedes all other written or oral
agreements between Lumex and Xx. XxXxxxx, except for any
confidentiality and/or noncompetition agreements, which survive
according to their terms to the extent
consistent with this Agreement; provided, that the twelve-month period
of time in Paragraph 2(c) of the September 28, 1995 Technical
Information and Non-Competition Agreement shall be construed to begin
running at the end of the Severance Period.
Xx. XxXxxxx'x Promises
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In return for Lumex's promises set forth above, Xx. XxXxxxx makes
the following promises and assurances:
9. Xx. XxXxxxx hereby resigns from his employ at Lumex,
effective at the end of the Transitional Period.
10. Xx. XxXxxxx'x resignation is final and irrevocable, except
to the extent that Xx. XxXxxxx revokes this Agreement pursuant to
paragraph 20 below.
11. Immediately upon the end of the Transitional Period, Xx.
XxXxxxx agrees to return to Lumex all property owned or leased by
Lumex that is in his possession or control, including but not limited
to all keys, computer printouts, customer lists, manuals,
correspondence, memoranda, and all other documents.
12. Xx. XxXxxxx agrees not to use or to disclose to any person
any confidential information obtained by him in the course of his
employment with Lumex. This information includes, but is not limited
to, the identity and location of Lumex's customers, customer ordering
history, pricing information, product development plans, information
concerning manufacturing processes, and other trade secrets.
13. During the Transitional Period, Xx. XxXxxxx shall continue
to devote his full working energies to his duties and his
responsibilities.
14. Xx. XxXxxxx agrees to be available on a consulting basis,
without additional compensation, to aid in the 1996 year-end audit and
in l0(k) filings. It is understood that such services shall not be
full-time.
15. Xx. XxXxxxx agrees that he shall cooperate with Lumex fully
with regard to Lumex's defense of any legal claim brought or
threatened against it or any of its agents by Xxxxxxx Xxxxxxxxxxxx,
Xxxxxxx Xxxxx, or any other person or entity, if such lawsuit relates
to events or decisions, actual or alleged, occurring during Xx.
XxXxxxx'x employment by Lumex. Such cooperation shall include, but
not be limited to: a) providing truthful and comprehensive testimony
in depositions, arbitrations, hearings, trials, and other proceedings,
as requested by Lumex counsel; b) providing truthful and comprehensive
affidavits as requested by Lumex counsel; c) meeting with Lumex
counsel and employees as requested to prepare for such testimony, to
facilitate the preparation of such affidavits, and/or to aid Lumex
otherwise in defending any such claim. The obligations agreed to in
this paragraph shall survive indefinitely. In order to enable Lumex
to contact Xx. XxXxxxx for the purposes set forth in this paragraph,
Xx. XxXxxxx shall
keep Lumex informed at all times of his addresses and telephone
numbers at home and at work. To the extent permitted by the
exigencies of litigation and the schedules of other persons involved,
Lumex shall give Xx. XxXxxxx reasonable notice of the times when he
will be required to fulfill his obligations under this paragraph.
Lumex shall reimburse Xx. XxXxxxx for any out-of-pocket expenses
incurred by him in complying with this paragraph.
16. Xx. XxXxxxx freely relinquishes and waives all possible
claims against Lumex which may have arisen from the time of his first
contacts with Lumex through the date of his signature on this
Agreement. "All possible claims" includes, but is not limited to, any
claims under Title VII of the Civil Rights Act of 1964, the Equal Pay
Act, the Americans With Disabilities Act, the Civil Rights Acts of
1866, 1871, and 1991, the Age Discrimination in Employment Act, the
Family and Medical Leave Act, the New York Human Rights Law, and all
other federal, state, or local laws. These laws prohibit
discrimination in employment on the basis of sex, race, color,
religion, age, national origin, or disability. This waiver also
includes any claims for wrongful discharge, breach of contract,
infliction of emotional distress, or any other tort, common law, or
contract claim. This waiver includes claims now known to Xx. XxXxxxx,
as well as all currently existing claims that are not now known to
him.
17. Xx. XxXxxxx agrees not to file any claim or bring any
lawsuit for any claim waived in paragraph 16, or to permit anyone else
to do so on his behalf. If Xx. XxXxxxx breaches this or any other
provision of this Agreement, Lumex will be entitled to an immediate
return or forfeiture of the money paid under paragraphs 2, 3, 5, and 6
of this Agreement, as well as reimbursement for any reasonable
attorneys' fees and/or court costs it is required to expend in its
defense.
18. Xx. XxXxxxx acknowledges that his choice to resign and to
waive any potential claims in return for the benefits set forth above
was made after careful thought, and after opportunity to consult with
a lawyer, which Lumex has advised him to do.
19. Xx. XxXxxxx acknowledges that he has been granted twenty-one
days to read and consider this Agreement carefully before signing it,
that this was ample time for him to do so, and that he fully
understands and agrees to all of its terms.
20. Xx. XxXxxxx may revoke this Agreement within seven (7) days
after he signs it. Revocation can be made by delivering written
notice of revocation to Lumex's chief executive officer. For this
revocation to be effective, the written notice must be received by the
chief executive officer's office no later than the close of business
on the seventh calendar day after Xx. XxXxxxx signs the Agreement; or
else the chief executive officer's office must be notified by
telephone by that day that
the written notice has been mailed, and the notice must be received no
later than five days thereafter with a postmark consistent with that
notification. Although not required, it is recommended that such
notice be sent by certified mail, return receipt requested. If Xx.
XxXxxxx revokes this Agreement, the Agreement shall be rescinded in
its entirety, and Lumex will be under no obligation to pay the monies
set forth in paragraphs 2, 3, 5, and 6.
21. If, during the period of time between Xx. XxXxxxx'x signing
of this Agreement and the effective date of his resignation, Xx.
XxXxxxx believes or suspects that Lumex is mistreating him in any way,
Xx. XxXxxxx agrees to so notify Lumex's chief executive officer, and
its chairman of the board, immediately by telecopy, with copies sent
by certified mail, return receipt requested.
General
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22. The language of all parts of this Agreement shall be
construed as a whole, according to its fair meaning, and not strictly
for or against either party, regardless of who drafted it.
23. Neither Lumex nor Xx. XxXxxxx admits by the signing of this
Agreement any wrongdoing whatsoever.
24. In this Agreement, "Lumex" shall also mean any or all of its
related companies, successors, predecessors, assigns, employees,
agents, and directors. "Xx. XxXxxxx" shall also mean
any or all of his heirs, testators, agents, estates, and
representatives.
25. This Agreement, including this paragraph, may not be altered
except by a signed writing. This Agreement may not be changed orally.
NOTICE
THIS AGREEMENT CONTAINS A WAIVER OF ALL KNOWN OR UNKNOWN LEGAL
CLAIMS. READ THIS ENTIRE AGREEMENT CAREFULLY BEFORE SIGNING.
YOU HAVE TWENTY-ONE DAYS TO THINK THIS AGREEMENT OVER BEFORE
SIGNING, AND YOU HAVE SEVEN DAYS TO REVOKE IT AFTER YOU SIGN IT.
DO NOT SIGN THIS AGREEMENT UNLESS YOU UNDERSTAND AND AGREE WITH
ALL OF ITS TERMS.
/s/ Xxxxxx XxXxxxx /s/ Xxxx X. Xxxxxx
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Xxxxxx XxXxxxx Lumex, Inc.
By:
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Sworn to before me this 22 Sworn to before me this 13
day of August, 1996 day of August 1996
/s/ Xxxxxxxx Xxxxxxx /s/ Xxxxxxxx Xxxxxxx
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Notary Public Notary Public
Xxxxxxxx Xxxxxxx Xxxxxxxx Xxxxxxx
Notary Public, State of New York Notary Public, State of New York
No. 4837182, Suffolk County No. 4837182, Suffolk County
Term Expires August 31, 1997 Term Expires August 31, 1997
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