EXHIBIT 10.16
CONFIDENTIAL SEVERANCE AGREEMENT
In exchange for the promises and covenants contained herein, Synovis Life
Technologies, Inc. ("Company") and Xxxxxxxx Xxxx Xxxx ("Employee") hereby agree
as follows:
1. Definitions. We intend all words used in this Severance Agreement
("Agreement") to have their plain meanings in ordinary English. Specific terms
we use in this Agreement have the following meanings:
A. Employee, as used herein, shall include the undersigned Employee and
anyone who has obtained any legal rights or claims through the
undersigned Employee.
B. Company, as used herein, shall at all times mean Synovis Life
Technologies, Inc., the parent company, its subsidiaries, successors
and assigns, its affiliated and predecessor companies, their successors
and assigns, their affiliated and predecessor companies and the present
or former directors, officers, employees, representatives and agents
(including, without limitation, its accountants and attorneys) of any
of them, whether in their individual or official capacities, and the
current and former trustees or administrators of any pension or other
benefit plan applicable to employees or former employees of Company, in
their official or individual capacities.
C. Employee's Claims, as used herein, means all of the rights Employee
has now to any relief of any kind from Company whether or not Employee
now knows about those rights, arising out of his employment with
Company, and his employment termination, including, but not limited to,
claims arising under the Age Discrimination in Employment Act, as
amended by the Older Worker Benefit Protection Act; the Minnesota Human
Rights Act; the Americans with Disabilities Act; Title VII of the Civil
Rights Act of 1964, as amended; claims under the Family Medical Leave
Act; or other federal, state or local civil rights laws; claims for
breach of contract; claims to bonus payments under the Company's
incentive bonus plan; fraud or misrepresentation; defamation,
intentional or negligent infliction of emotional distress; breach of
covenant of good faith and fair dealing; promissory estoppel;
negligence; wrongful termination of employment; and any other claims
for unlawful employment practices.
2. Separation. Company and Employee mutually agree that October 31, 2004 shall
be Employee's last day of employment with the Company ("Effective Date").
Company and Employee mutually agree that Employee may be relieved of his job
duties in part or whole prior to October 31, 2004, as determined by the Company.
In the event Employee is relieved of his job duties prior to October 31, 2004,
the Company will continue to pay Employee's wages through October 31, 2004.
3. Company's Obligations and Severance Agreements. In consideration for
Employee's promises contained herein and in the Updated Release (as hereinafter
defined), specifically
including, but not limited to, the release of all claims by Employee, Employee's
promises to refrain from disclosing confidential information and trade secrets
of Company and Employee's non-solicitation promises, Company agrees as follows:
X. Xxxxxxxxx Payment. Company agrees to pay to Employee a Severance
payment of $100,000.00 ("Severance Payment") which is equal to six (6)
months of Employee's salary calculated at Employee's regular rate of
pay as of the date that this Agreement was entered into. This Severance
Payment will be paid in accordance with the Company's regular pay
practices and on the Company's regularly scheduled pay dates after the
expiration of the Rescission Periods contained in the Updated Release
(as hereinafter defined). The Severance Payment shall be subject to
federal and state withholding taxes and FICA.
B. Medical Insurance Benefits. Company, pursuant to federal and state
law, will provide, for a period of eighteen (18) months following the
Effective Date ("COBRA Period"), a continuation of the health and
dental insurance previously provided to the Employee by the Company
(the "COBRA Benefits"). For the first six (6) months of the COBRA
Period, Company will pay that portion of the premium for the COBRA
Benefits that it paid during Employee's employment. For the remaining
twelve (12) months of the COBRA Period, Employee will be required to
pay for the COBRA Benefits for the remainder of the COBRA Period,
should Employee elect to continue COBRA coverage.
C. Incentive Pay. Employee acknowledges and agrees that in exchange for
the Severance Payment and the Benefits listed in Section 3.A. and 3.B.
above that he will not be entitled to receive and Company will not
provide him with any incentive pay for the year 2004 under the
Company's incentive pay plan or any other plan and that he releases any
and all rights he may have to collect such incentive pay. Employee
further acknowledges and agrees that the consideration given to him in
Section 3.A. and 3.B. above are adequate consideration for his promises
in Section 4. below, including his release of rights to receive any
incentive payments.
4. Employee Obligations. As material inducement to Company in entering into this
Agreement and providing the consideration described in Section 3, Employee
hereby agrees as follows:
A. Release. Employee agrees to release all Employee's Claims. Employee
acknowledges that the money and promises received and to be received by
Employee are in exchange for the release of Employee's Claims.
B. Updating of Release. Employee agrees to provide the Company an
updated release through the Effective Date, a copy of which is attached
hereto as Exhibit A (the "Updated Release"), covering any and all
claims or liabilities which may arise from any matter, fact or thing
occurring between the execution date and the effective date in terms
identical to the respective release given by Employee herein. An
executed release shall be delivered by Employee to the Company within
five (5) business days following the Effective Date.
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C. Covenant Not To Xxx. Employee agrees that he will not initiate any
litigation to pursue claims which Employee released in this Sections
4.A. or 4.B. This covenant does not apply to litigation challenging the
validity of Sections 4.A. or 4.B. Further, Employee agrees to pay
Company's attorneys fees if Employee breaches the covenant not to xxx
contained in this Section 4.C.
D. Company Property. Employee will return all property belonging to
Company immediately upon the earlier of the Effective Date or the date
that the Employee is requested to leave by the Company in accordance
with Section 2., whether such property is currently on or off the
premises of Company, including, without limitation, any and all
computer hardware or computer software.
E. Non-Solicitation. Employee shall not, directly or indirectly,
through October 31, 2006:
1. solicit customers, or the business of any person, firm,
corporation or any entity who is or has been a customer or
account of any office or location of Company or its affiliates or
successors (whether currently in existence or opened during
Employee's employment), for the purpose of selling to such
customer or account any product or service which is or has been
sold by Company or any of Company's affiliates; or
2. induce or attempt to induce any employee of or consultant to
Company or any of Company's affiliates or successors to do any of
the foregoing or to discontinue such person's association with
Company.
F. Confidentiality. For all time hereafter forever, Employee will not
use or make available or divulge to any person, firm, corporation or
other entity any information of or regarding Company including, without
limitation, trade secrets, customer lists, business policies, financial
information, technical information, methods of operation, marketing
programs, customer price lists or any other confidential or secret
information concerning the business and affairs of Company or any of
its affiliates.
G. Confidentiality of Agreement. Employee agrees that he will keep the
terms and conditions of this Agreement strictly confidential except
that Employee may disclose the terms and conditions of this Agreement
to his spouse, if any, attorney, tax preparer, government agencies, or
as required by law. Employee agrees that in the event that Employee
discloses any of the terms of this Agreement, including the fact of
payment other than as set forth above, he shall be liable to Company as
set forth in Section 4.J. of this Agreement and for any and all
injuries or damages sustained by Company including costs, disbursements
and attorneys' fees incurred by Company as a direct result of
Employee's disclosure. Nothing contained in this section shall restrict
the Company's ability to disclose the terms and conditions of this
Agreement if it in its sole discretion determines such disclosure to be
appropriate.
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H. Non-Disparagement. Parties agree that they shall not disparage or
defame each other in any respect. If either party provides testimony or
any sworn statements in connection with any litigation relating to
Employee's employment with Company, this provision does not limit
Parties' obligation to testify truthfully.
I. Cooperation and Continuing Assistance From Employee. Employee agrees
to cooperate with Company in the defense of claims and litigation filed
against Company relating to the period of Employee's employment with
Company and of which Employee has knowledge, including, but not limited
to, the complaint filed against the Company by Xxxxx Xxxxxx, Xxxxxxx
Xxxxxxx, and Xxxxxxx Xxxxxxxxx in Minnesota District Court, Xxxxxx
County, case number 62-CX-03-004572 (the "Xxxxxx Litigation"), the
complaint filed against the Company by Xxxxxx X. Xxxxxx in the United
States District Court, District of Minnesota case number
04-cv-03008-ADM-AJB (the "Xxxxxx Litigation"), any other securities
litigation that may arise against the Company and any other future
claims against Company, its subsidiaries, affiliates, successors and
assigns, present or former directors, officers, employees,
representatives and agents. Employee's time in the defense of claims
and litigation filed against Company shall not be reimbursed by the
Company; however, Employee 's reasonable costs and expenses in
assisting Company in the defense of claims and litigation filed against
the Company will be paid by Company. Employee and Company agree that
only reasonable amounts of time and effort will be required of Employee
in assisting Company with the above litigation matters and should
parties mutually agree that the time and effort spent by Employee has
become excessive parties mutually agree that they will negotiate an
agreeable reimbursement plan for Employee's time. Employee further
agrees and acknowledges that Company will hire an individual or
individuals to perform certain of the duties that he currently performs
or has performed at the Company. Employee agrees to cooperate with
reasonable requests by the Company to assist Company with the transfer
of Employee's files and job duties to such employees. To the extent
Company requests assistance from Employee as a consultant after the
Severance Period, Company and Employee agree to negotiate mutually
acceptable terms of compensation for any consulting services provided
by Employee to Company.
J. Remedies. Employee acknowledges that any breach of any of the
promises set forth in Sections 4.C, 4.D., 4.E., 4.F., 4.G., 4.H. and
4.I. will cause Company irreparable harm for which there is no adequate
remedy at law and Employee therefore consents to the issuance of any
injunction in favor of Company enjoining the breach of any of those
promises by any court of competent jurisdiction. If any promise made by
Employee in this Section 4 should be held to be unenforceable because
of its scope or duration, or the area or subject matter covered
thereby, Employee agrees that the court making such determination shall
have the power to reduce or modify the scope, duration, subject matter
or area of that promise to the extent that allows the maximum scope,
duration, subject matter or area permitted by applicable law. Employee
further agrees that the remedies provided for herein are in addition
to, and are not to be construed as replacements for, or a limitation
of, rights and remedies otherwise available to Company.
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5. Employee's Understandings. Employee acknowledges and represents that:
A. Employee understands that he has the right to consult with an
attorney regarding the meaning and effect of this Agreement.
B. Employee also understands that he has a period of twenty-one (21)
calendar days from the date on which he receives an unsigned copy of
this Agreement in which to consider whether or not to sign this
Agreement and that, having been advised of that entitlement, he may
elect to sign this Agreement at any time prior to the expiration of
that time period.
C. Employee understands that he may rescind (that is, cancel) within
seven (7) calendar days of signing the Agreement the provisions of
Section 4.A. of this Agreement with respect to claims arising under the
Age Discrimination in Employment Act ("ADEA Rescission Period") and
that he may rescind within fifteen (15) calendar days of signing the
Agreement the provisions of Section 4.A. of this Agreement with respect
to claims arising under the Minnesota Human Rights Act ("MHRA
Rescission Period") (collectively, "Rescission Periods"). To be
effective, rescission must be in writing, delivered to Company at
Synovis Life Technologies, Inc., Attn: Xxxxx Xxxxx, 0000 Xxxxxxxxxx
Xxxxxx Xxxx; Xxxxx 000, Xx. Xxxx, XX 00000-0000, within the applicable
rescission period, or sent to Company, at such address, by certified
mail, return receipt requested, postmarked within the applicable
rescission period.
D. Employee understands and Company warrants that the Company will
indemnify Employee for any claims or complaints against Employee
personally which arise form Employee's employment with Company in
accordance with the indemnification provision of the Company's bylaws
for the Officers and Directors of the Company.
6. Cancellation of Agreement By Company. If Employee exercises his right of
rescission under Section 5.C. of this Agreement, Company will have the right,
exercisable by written notice delivered to Employee, to terminate this Agreement
in its entirety, in which event Company will have no obligation whatsoever to
Employee hereunder. If Employee exercises his right of rescission under Section
5.C. of this Agreement, and Company does not exercise its right to terminate
this Agreement hereunder, the remaining provisions of this Agreement (including
specifically the remaining provisions of Section 4 of this Agreement) shall
remain valid and continue in full force and effect.
7. Performance By Employee. Nothing contained herein shall operate as a waiver
or an election of remedies by Company should Employee fail to perform any duty
or obligation imposed upon him hereunder. Notwithstanding anything contained
herein to the contrary, this Agreement and the duties and obligations of
Employee hereunder shall continue in full force and effect irrespective of any
violation of any term or provision of this Agreement by Employee.
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8. No Admission Of Liability. The parties agree that this Agreement shall not be
considered an admission of liability by Company. Company expressly denies that
it is in any way liable to Employee or that it has engaged in any wrongdoing
with respect to Employee.
9. Employee Acknowledgments. Employee acknowledges and represents that: (a) he
has read this Agreement and understands its consequences; (b) he has received
adequate opportunity to read and consider this Agreement; (c) he has determined
to execute this Agreement of his own free will and acknowledges that he has not
relied upon any statements or explanations made by Company regarding this
Agreement; and (d) the promises of Company made in this Agreement constitute
fair and adequate consideration for the promises, releases and agreements made
by Employee in this Agreement.
10. Entire Agreement. This Agreement, including any exhibits attached hereto or
documents expressly referred to herein, contains the entire agreement between
Company and Employee and supersedes and cancels any and all other agreements,
whether oral or in writing, between Company and Employee with respect to the
matters referred to herein.
11. Governing Law. This Agreement shall be construed and enforced in accordance
with the laws of the State of Minnesota.
12. Effective Date. This Agreement was originally offered to Employee on or
about August 16, 2004. Employee shall have until the close of business on
September 6, 2004 to accept this Agreement. If Employee desires to accept this
Agreement, Employee shall execute the Agreement and return the same to Company
at the address set forth in Section 5.C. hereof. If Employee does not so accept
this Agreement, this Agreement, and the offer contained herein, shall be null
and void as of the close of business on September 6, 2004.
13. Counterparts. This Agreement may be executed in counterparts with an
executed counterpart to be delivered to the other party. Each such executed
counterpart shall be deemed an original but shall constitute one and the same
instrument.
SYNOVIS LIFE TECHNOLOGIES, INC.
Dated: By:
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Its:
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Dated:
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Xxxxxxxx Xxxx Xxxx
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