AGREEMENT AND RELEASE
This AGREEMENT AND RELEASE (this "Agreement") is made this ____ day of
November, 1996 between XXXXXXXX X. XXXXX, PH.D., an individual residing at 0000
Xxxx Xxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxx 00000 ("Employee"), and NOVOSTE
CORPORATION, a Florida corporation with offices at 0000-X Xxxxxxxxxxxxx
Xxxxxxxxx, Xxxxxxxx, Xxxxxxx 00000 ("Novoste").
WHEREAS, the parties desire to set forth their agreement regarding the
resignation of Employee as an employee and officer of Novoste and certain
related matters;
NOW, THEREFORE, the parties hereby agree as follows:
1. Employment.
Novoste will continue to employ Employee as its Vice President,
Product Development, and Employee will continue to work for Novoste in such
capacity, through February 28, 1997. Through such date, Novoste will continue to
pay Employee his current semimonthly salary of $5416.67 and provide Employee
with such medical insurance, life insurance, disability insurance and similar
benefits as Employee currently receives. Effective as of such date, Employee
hereby voluntarily resigns as an employee and Vice President, Product
Development of (and from any other position or office he may hold in) Novoste.
Novoste and Employee each acknowledge and agree that Employee shall be
entitled to receive any bonus earned by Employee through December 31, 1996 (but
no bonus with respect to any period thereafter) under the terms of the 1996
Incentive Plan of Novoste (i.e., a bonus equal to 10% of the 1996 Milestone
Pools aggregating $170,000 which are actually distributed to management under
such Plan, or a maximum bonus of $17,000). Novoste agrees to promptly cause a
change in the beneficiary of the life insurance policy currently maintained by
Novoste with respect to Employee from Novoste to Xxxxx X. Xxxxx. Novoste further
agrees to continue to pay the premiums of such policy through the end of its
current term (i.e., January 12, 1997), at which time Novoste agrees to cooperate
in the assignment to Employee of such policy (provided that such assignment is
allowed by the insurer named in such policy).
2. Computer Equipment.
Novoste hereby transfers to Employee all of Novoste's right, title and
interest in and to the computer equipment currently used by Employee which is
described on Exhibit A hereto.
3. Consultancy.
a. Novoste agrees to engage Employee as a consultant for a
sixteen-month period commencing March 1, 1997 and ending June 30, 1998. During
such sixteen-month period, Employee shall provide such consulting services to
Novoste at mutually convenient times, whether in person, by telephone, written
or electronic communication or otherwise, as Novoste shall reasonably request
from time to time. Such consulting services shall include, but not be limited
to, (i) services relating to regulatory matters such as assisting Novoste with
submissions to the FDA or other regulatory authorities and responses to comments
or inquiries from such regulatory authorities and (ii) computer-related services
such as graphic design, video development and animation.
b. Novoste shall pay to Employee the following amounts as consulting
fees on the successive dates indicated below (or next business day should any of
such dates not fall on a business day for Novoste):
$50,000 On the eighth day following
execution and delivery hereof
$30,000 On the eighth day following
execution and delivery of the
2/28/97 Extension of Release
$10,000 On March 31, 1997
$30,000 On June 30, 1997
$30,000 On September 30, 1997
$30,000 On the eighth day following
execution and delivery of the
6/30/98 Extension of Release
4. "Lock-Up".
Employee agrees that he will not, directly or indirectly, sell, offer
for sale, sell short, contract to sell, pledge, grant any option to purchase, or
otherwise dispose of any shares of common stock of Novoste (including, without
limitation, any such shares issued or issuable upon the exercise of stock
options) from the date of this Agreement through June 30, 1998 other than up to
an aggregate of 50,000 such shares during the three-month period from March 1,
1997 through May 31, 1997 and thereafter only up to an aggregate of 20,000 such
shares in any given calendar month during the period from June 1, 1997 through
June 30, 1998. Without limiting any obligations of Employee under this Agreement
or applicable law, the Company represents to Employee that the shares of its
common stock issuable upon exercise of Employee's stock
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options described in Section 5b are covered by a Form S-8 Registration Statement
filed with the SEC.
5. Release.
a. For purposes of this Agreement, an "Affiliate" of Novoste shall
mean any person, corporation, partnership, firm, association, trust or other
entity, directly or indirectly through one or more intermediaries, controlling,
controlled by or under common control with Novoste or any such person.
b. In consideration of the transfer of computer equipment to Employee
under Section 2 hereof and other good and valuable consideration, Employee, for
and on behalf of himself, his heirs, distributees, executors, administrators,
legal representatives and assigns hereby WAIVES, RELEASES AND FOREVER DISCHARGES
AND ACQUITS Novoste and each of its Affiliates and the officers, directors,
shareholders, partners, employees, agents, attorneys and representatives of each
of Novoste and each of its Affiliates, past, present and future, and the heirs,
distributees, executors, administrators, legal representatives, successors and
assigns of each of the foregoing (Novoste and all of such persons and entities
being collectively referred to as the "Releasees") from any and all actions,
causes of action, suits, debts, demands and claims (including, without
limitation, amounts for attorneys' fees and expenses), known or unknown,
asserted or unasserted, which Employee ever had, now has or hereafter can, shall
or may have against any of the Releasees arising at any time directly or
indirectly out of, or in any way connected with Employee's employment with
Novoste and/or any other association, relationship or dealing with any of the
Releasees from the beginning of such employment (or, if earlier, such other
association, relationship or dealing) to the date of this Agreement, including,
but not limited to:
(1) claims arising out of federal, foreign, state or local
employment discrimination laws, regulations or ordinances, such as for sex, age,
race, color, national origin, marital status, sexual orientation or preference,
disability, religion, handicap or status as a Vietnam or special disabled
veteran, including without limitation, the Federal Age Discrimination in
Employment Act, as amended ("ADEA") (subject to the right of revocation set
forth in Section 7b), the Employee Retirement Income Security Act, the Family
and Medical Leave Act of 1993 and the Georgia Fair
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Employment Practices Act, in each case to the extent applicable to Novoste and
Employee;
(2) claims for wrongful or abusive discharge arising at law or in
equity;
(3) claims for implied or express contracts, personal injury or
tort claims or claims arising under public policy;
(4) claims for workers compensation, claims for continued pay,
accrued vacation pay or any other claim for wages, compensation, fringe benefits
or reinstatement to employment, including but not limited to claims for bonuses
or deferred or incentive compensation;
(5) claims relating to any capital stock or other securities
issued by Novoste;
(6) any other claim, of any kind, nature or description
whatsoever, at law or in equity, which Employee or his heirs, distributees,
executors, administrators, legal representatives, successors or assigns had, now
have or hereafter can, shall or may have, for, upon or by reason of any matter,
cause or thing whatsoever;
provided, however, that nothing in this Section 5 shall be construed as
discharging any obligations of Novoste expressly provided for under this
Agreement or (with respect to the stock options currently held by Employee to
purchase an aggregate of 139,875 shares of common stock of Novoste at $.25 per
share and 7,500 such shares at $3.20 per share) the Amended and Restated Stock
Option Plan of Novoste (the "Stock Option Plan").
6. Extensions of Release; Non-Competition Agreement; Breaches.
a. In consideration of the payments to be paid to Employee under
Section 3 and other good and valuable consideration, Employee agrees to execute
and deliver to Novoste, (i) within seven days after February 28, 1997 and June
30, 1998, a notarized version of the form of Extension of Release attached
hereto as Exhibit B (dated as of February 28, 1997 or June 30, 1998, as the case
may be) and (ii) simultaneously with the execution hereof, a non-competition and
confidentiality agreement in the form attached hereto as Exhibit C (the
"Non-Competition Agreement").
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b. Without limiting any other rights or remedies of Novoste under this
Agreement or the Surviving Agreements (including without limitation the right to
seek damages in arbitration pursuant to Section 10a hereof and equitable relief
under the Non-Competition Agreement), in the event of any breach by Employee of
this Agreement or any of the Surviving Agreements (as defined in Section 7f),
Novoste shall not be entitled to refrain from making any payments to Employee
hereunder (other than the $30,000 consulting fee due on the eighth day following
execution and delivery of the 6/30/98 Extension of Release) unless and until
such breach shall have been determined to have occurred by an arbitrator
pursuant to Section 10a hereof or, if applicable, a court of competent
jurisdiction.
7. Certain Acknowledgements.
Employee acknowledges and agrees that:
a. Employee shall have no authority and shall take no action to bind
or to incur any expense for or on behalf of, or to act in any other manner for
or on behalf of, Novoste during the sixteen-month consulting period set forth in
Section 3 hereof, without the prior written approval of the President or Chief
Financial Officer of Novoste.
b. subject to the provisions set forth in the next two sentences, this
Agreement constitutes a knowing and voluntary waiver of all rights or claims he
may have against Novoste under ADEA, including, but not limited to, all claims
of age discrimination in employment and all claims of retaliation in violation
of ADEA. For a period of seven (7) days following his execution of this
Agreement, Employee may revoke this Agreement by written notice to such effect
to Novoste. In the event of such revocation, this Agreement shall be null and
void ab initio as to all parties. Accordingly, this Agreement shall not become
enforceable until the expiration of such seven-day period occurs without any
such revocation by Employee.
c. Novoste must offer Employee an opportunity to consider the
provisions of this Agreement for up to twenty-one (21) days. Employee
acknowledges and agrees that he has had ample time in which to consider, and
review with an attorney of his choosing, this Agreement prior to its execution
by him.
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d. the Stock Option Plan provides that Employee must exercise options
granted to him thereunder prior to the last day of his employment (i.e.,
February 28, 1997) in order to avoid forfeiture of such options. Employee has
been advised to consult with his tax advisor concerning the tax treatment of any
exercise of such options, and any sale or other transfer of shares of common
stock issued upon any such exercise, and agrees to notify promptly the Chief
Financial Officer of Novoste regarding any sale or other transfer by Employee of
any shares issued upon any such exercise which occurs within one year from the
date of such exercise.
e. any payments, benefits or other consideration provided by Novoste
to Employee under the terms of this Agreement do not constitute an admission by
Novoste that it has, had, or has violated any legal or other obligation to
Employee or has violated any law respecting Employee's employment. Employee
further understands and agrees that all payments made hereunder are subject to
any and all applicable withholding for income taxes, FICA and other such
deductions.
f. nothing in this Agreement shall limit Employee's obligations under
any of the lock-up agreement dated March 25, 1996 executed by Employee in favor
of Novoste and the underwriters of its initial public offering, the Stock Option
Plan, the Non- Competition Agreement or the conflict of interest or business
conduct agreements dated June 2, 1992 (all of the foregoing being collectively
referred to as the "Surviving Agreements"). Employee acknowledges and agrees
that he is bound by the terms and conditions of each of the Surviving Agreements
and that each shall remain in full force and effect until terminated in
accordance with its terms.
8. No Disparagement; Letter of Reference.
Employee agrees not to make any disparaging or derogatory comments to
any person or entity, whether in writing or orally, about Novoste, any aspect of
its business, or its officers, directors, employees, or agents and Novoste
agrees not to make any disparaging or derogatory comments to any person or
entity, whether in writing or orally, about Employee or any aspect of his
performance. The parties acknowledge that it is their intention to prepare a
mutually satisfactory letter of reference relating to Employee for use in
providing information to persons or entities seeking to employ or engage
Employee.
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9. Notices.
All notices under this Agreement shall be in writing and shall be
either personally delivered (including delivery by express couriers such as
Federal Express) or sent by prepaid certified mail, return receipt requested,
addressed to the party to which notice is to be given at the address set forth
at the beginning of this Agreement for such party, or to such other address as
such party may have fixed by notice given in accordance with the terms hereof.
Any notice sent as aforesaid shall be deemed given and effective upon the
earlier of (i) delivery to the address provided for herein and (ii) the date
falling three days after notice of attempted delivery has been left at the
address to which a notice to the intended recipient is to be sent hereunder.
10. Arbitration; Governing Law; Severability
a. In the event of any dispute between the parties hereunder or
otherwise arising out of or relating to this Agreement or the Surviving
Agreements (other than the Non-Competition Agreement), the parties hereto
covenant and agree that such dispute will be resolved only by arbitration,
conducted in Atlanta, Georgia by the American Arbitration Association ("AAA"),
pursuant to its Employment Dispute Resolution Rules, as the same may be amended
from time to time. Each party hereto agrees to participate therein diligently
and in good faith. The determination made in any such arbitration shall be
binding on the parties hereto and may be entered for judgment in any court of
competent jurisdiction. The arbitrator shall award to the prevailing party, if
any (as determined by the arbitrator), all of such party's Costs and Fees (as
defined in the next sentence); provided, however, that unless and until the
arbitrator shall make such award, Novoste and Employee shall share equally the
fees and expenses of the arbitrator and administrative fees of the arbitration
and shall bear its own other Costs and Fees itself. As used in this Section, the
term "Costs and Fees" shall refer to all reasonable pre-award expenses of the
arbitration, including the arbitrator's fees, administrative fees, travel
expenses, out-of-pocket expenses such as copying and telephone, court costs,
witness fees and attorneys' fees.
b. This Agreement shall be governed by and construed in accordance
with the internal laws of the State of Georgia.
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c. If any provision of this Agreement shall be determined by an
arbitrator pursuant to Section 10a or a court of competent jurisdiction to be
invalid or unenforceable, in whole or in part, this Agreement shall be deemed
amended to delete or modify, as necessary, the offending provision and to alter
the balance of this Agreement in order to render this Agreement valid and
enforceable to the fullest extent permitted under applicable law.
11. Complete Agreement; Modification
Without limiting Section 7f, this Agreement constitutes the complete
understanding between Employee and Novoste with respect to the subject matter
hereof and supersedes any and all prior agreements between them with respect
thereto. This Agreement may not be modified unless such modification is set
forth in a writing signed by the party against whom or which enforcement of such
modification is sought.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement on
the date first above written.
NOVOSTE CORPORATION
__________________________ By:______________________________
XXXXXXXX X. XXXXX Xxxxxx X. Xxxxxx
President
STATE OF GEORGIA )
) ss.:
COUNTY OF GWINNETT )
On this _____ day of November, 1996, before me personally came
Xxxxxxxx X. Xxxxx, to me known to be the individual described in and who
executed the foregoing instrument and he did duly acknowledge to me that he
executed same.
_______________________________________
Notary Public
My commission expires:_________________
STATE OF GEORGIA )
) ss.:
COUNTY OF GWINNETT )
On the _____ day of November, 1996, before me personally came Xxxxxx
X. Xxxxxx, to me known, who, being by me duly sworn, did depose and say that he
is the President of Novoste Corporation, the corporation described in and which
executed the foregoing instrument, and that he signed his name thereto on behalf
of said corporation.
_______________________________________
Notary Public
My commission expires: _________________
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EXHIBIT A
DESCRIPTION OF COMPUTER EQUIPMENT
See attached list of computer equipment.
EXHIBIT B
EXTENSION OF RELEASE
[Insert February 28, 1997 or June 30, 1998]
Novoste Corporation
0000-X Xxxxxxxxxxxxx Xxxx.
Xxxxxxxx, Xxxxxxx 00000
Ladies and Gentlemen:
Reference is made to the Agreement and Release, dated November ___,
1996, between Novoste Corporation and the undersigned. The phrase originally
reading "the date of this Agreement" in Section 5b of such Agreement and Release
is hereby amended to read "[Insert February 28, 1997 or June 30, 1998]" (without
modifying any other provision of such agreement).
Sincerely,
Xxxxxxxx X. Xxxxx, Ph.D.
STATE OF GEORGIA )
) ss.:
COUNTY OF GWINNETT )
On this ____ day of ___________, 199_, before me personally came
Xxxxxxxx X. Xxxxx, to me known to be the individual described in and who
executed the foregoing instrument and he did duly acknowledge to me that he
executed same.
_______________________________________
Notary Public
My commission expires: ________________
EXHIBIT C
NON-COMPETITION AGREEMENT
See attached form of non-competition agreement.
