Exhibit 10.21
VidaMed, Inc.
00000 Xxxxxxx xxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
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August 31, 1999
Mr. Xxxxx Xxxxxxxxxxx
Executive Chairman and
Chairman of the Board
VidaMed, Inc,
00000 Xxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Re: Resignation of Employment as Executive Chairman and Consulting
Agreement
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Dear Xx. Xxxxxxxxxxx:
With reference to your agreement with VidaMed, Inc. dated June 26, 1999
("Employment Agreement") regarding your service to the Company as Executive
Chairman, this letter will confirm the terms of your resignation from that
office and the compensation to be paid to you by the Company.
1. Resignation and Acknowledgments. Effective August 31, 1999 (the
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"Resignation Date") Xx. Xxxxxxxxxxx herewith resigns his employment with
VidaMed, Inc. as its Executive Chairman. The Company acknowledges the fine
service of Xx. Xxxxxxxxxxx and confirms that his resignation was
necessitated by the Company's need for additional outside (non-employee)
directors. Xx. Xxxxxxxxxxx shall remain as Chairman of the Company's Board
of Directors. Xx. Xxxxxxxxxxx'x authority and responsibility as a Member
and Chairman of the VidaMed Board of Directors is herewith recognized as
distinct from his role as Executive Chairman and is in no way modified by
this writing.
2. Consulting and Severance Benefits. As a severance for early termination of
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your Employment Agreement and as consideration for the releases granted
herein by Xx. Xxxxxxxxxxx to the Company, the Company has agreed:
(a) To retain Xx. Xxxxxxxxxxx as a consultant on the Resignation Date
through February 15, 2000 ("Termination Date"). Xx. Xxxxxxxxxxx'x
compensation through the consultancy period shall be $56,250.00
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payable in two lump sums of $28,125.00 each; the first payment shall
be made November 1, 1999 and the second February 15, 2000.
(b) As further consideration to Xx. Xxxxxxxxxxx, the Company shall
purchase for Xx. Xxxxxxxxxxx and his dependants, through the
Termination Date, a policy of health insurance equivalent to that the
Company provides its officers and employees, and
(c) To pay Xx. Xxxxxxxxxxx on or before February 1, 2000 his share of the
VidaMed Performance Improvement Plan ("PIP") under such terms accorded
the President and Chief Executive Officer of the Company, prorated
from January 1, 1999 through August 1, 1999. For purposes of
calculating benefits under the PIP, the Operating Plan shall be
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the "Steady Growth Plan" stated in the Minutes of the Board of
Directors dated June 22, 1999; and
(d) On the Termination Date the remaining balance of $62,500.00 loan
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made to Xx. Xxxxxxxxxxx by the Company shall be deemed earned and the
note forgiven.
(e) Xx. Xxxxxxxxxxx'x stock options for an aggregate of 250,000 shares
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which was granted to him on October 9, 1998 (the "10/98 Option") shall
continue to vest on terms set forth in such option until Termination
Date. Thereafter Xx. Xxxxxxxxxxx will have thirty (30) days from said
Termination Date to exercise the shares vested under the 10/98 Option.
The unvested portion of all Xx. Xxxxxxxxxxx'x other unexercised
VidaMed options will be cancelled and returned to the VidaMed stock
option plan.
(f) Reimburse Xx. Xxxxxxxxxxx for reasonable and necessary expenses
incurred on behalf of the Company during the consultancy period, said
reimbursement ending on the Termination Date.
(g) With regard to other agreement between the Company and
Xx. Xxxxxxxxxxx:
(i) Xx. Xxxxxxxxxxx'x Change of Control Agreement with
VidaMed will remain in effect through the Termination Date.
(ii) Xx. Xxxxxxxxxxx Indemnification Agreement with VidaMed will
remain in effect for so long as he continues to serve as a
member of VidaMed's Board of Directors.
(iii) Xx. Xxxxxxxxxxx'x Employee Confidentiality Agreement with
VidaMed will remain in effect in accordance with its terms.
4. Release of Claims. Xx. Xxxxxxxxxxx agrees that the consideration
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described in this Agreement represents settlement in full of all
outstanding obligations owed to Xx. Xxxxxxxxxxx by the Company under any
employment agreement, or other like agreements with the Company. Xx.
Xxxxxxxxxxx on behalf of himself, and his respective heirs, family members
(including domestic partners), executors, heirs and assigns hereby fully
and forever releases VidaMed, Inc., including its officers, directors,
employees, investors, shareholders, administrators, affiliates, divisions,
subsidiaries, predecessor and successor corporations, and assigns, from,
and agrees not to xxx concerning, any claim, duty, obligation or cause of
action relating to any matters of any kind, whether presently known or
unknown, suspected or unsuspected, that any of them may possess arising
from any omissions, acts or facts that have occurred up until and including
the Effective Date of this Agreement. Said release includes, but is not
limited to:
(a) Any and all claims relating to or arising from Xx. Xxxxxxxxxxx'x
employment relationship with the Company and the termination of that
relationship;
(b) Any and all claims relating to, or arising from, Xx. Xxxxxxxxxxx'x
right to purchase, or actual purchase of shares of stock of the
Company, including, without limitation. any claims for fraud,
misrepresentation, breach of fiduciary duty, breach of duty under
applicable state corporate law, and securities fraud under any state
or federal law;
(c) Any and all claims for wrongful discharge of employment; termination
in violation of public policy; discrimination; breach of contract,
both express and implied; breach of a covenant of good faith and fair
dealing, both express and implied; promissory estoppel; negligent or
intentional
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infliction of emotional distress; negligent or intentional
misrepresentation; negligent or intentional interference with contract
or prospective economic advantage; unfair business practices;
defamation; libel; slander; negligence; personal injury; assault;
battery; invasion of privacy; false imprisonment; and conversion;
(d) Any and all claims for violation of any federal, state or municipal
statute, including, but not limited to, Title VII of the Civil Rights
Act of 1964, the Civil Rights Act of 199 1, the Age Discrimination in
Employment Act of 1967, the Americans with Disabilities Act of 1990,
the Fair Labor Standards Act, the Employee Retirement Income Security
Act of 1974, The Worker Adjustment and Retraining Notification Act,
Older Workers Benefit Protection Act; the California Fair Employment
and Housing Act, and Labor Code section 20 1, et seq. and section 970,
et seq.;
(e) Any and all claims for violation of the federal, or any state,
constitution;
(f) Any and all claims arising out of any other laws and regulations
relating to employment or employment discrimination; and
(g) Any and all claims for attorneys' fees and costs.
For its part, VidaMed, Inc agrees not to xxx and fully and forever releases, Xx.
Xxxxxxxxxxx, his heirs and assigns from any claim, duty, obligation or cause of
action relating to any matters of any kind, whether presently known or unknown,
suspected or unsuspected, that the Company may possess arising from any
omissions, acts or facts that have occurred up until and including the
Termination Date.
The Company and Xx. Xxxxxxxxxxx agree that the releases set forth in this
section shall be and remain in effect in all respects as a complete general
release as to the matters released. This release does not extend to any
obligations incurred under this Agreement or arising after the effective date of
this Agreement.
5. Acknowledgment of Waiver of Claims Under ADEA. Xx. Xxxxxxxxxxx
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acknowledges that he is waiving and releasing any rights he may have under
the Age Discrimination in Employment Act of 1967 ("ADEA") and that this
waiver and release is knowing and voluntary. Xx. Xxxxxxxxxxx and the
Company agree that this waiver and release does not apply to any rights or
claims that may arise under ADEA after the Resignation Date. Xx.
Xxxxxxxxxxx acknowledges that the consideration given to him for his waiver
and release is in addition to anything of value to which Xx. Xxxxxxxxxxx
was already entitled. Xx. Xxxxxxxxxxx further acknowledges that he has been
advised by this writing that:
(a) He should consult with an attorney prior to executing this Agreement;
(b) He has twenty-one (21) days within which to consider this Agreement;
(c) He least seven (7) days following the execution of this Agreement by
the parties to revoke the Agreement; and
(d) This Agreement shall not be effective until the revocation period has
expired.
6. Civil Code Section 1542. The Parties represent that they are not aware of
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any claim by either of them other than the claims that are released by this
Agreement. Xx. Xxxxxxxxxxx and the Company acknowledge that legal counsel
has advised them and are familiar with the provisions of California Civil
Code Section 1542, which provides as follows:
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A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR.
Xx. Xxxxxxxxxxx and the Company, being aware of said code section, agree to
expressly waive any rights they may have thereunder, as well as under any other
statute or common law principles of similar effect.
7. No Pending or Future Lawsuits. Xx. Xxxxxxxxxxx represents that he has no
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lawsuits, claims, or actions pending in his name, or on behalf of any other
person or entity, against the Company its officers, directors, employees,
investors, shareholders, administrators, affiliates, divisions,
subsidiaries, predecessor and successor corporations, and assigns or any
other person or entity referred to herein. Xx. Xxxxxxxxxxx also represents
that he does not intend and henceforth forswears any right to bring any
claims on his own behalf or on behalf of any other person or entity against
the Company or its officers, directors, employees, investors, shareholders,
administrators, affiliates, divisions, subsidiaries, predecessor and
successor corporations, and assigns or any other person or entity referred
to herein.
8. No Cooperation. Xx. Xxxxxxxxxxx agrees he will not act in any manner that
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might damage the business or reputation of the Company. Xx. Xxxxxxxxxxx
agrees that he will not counsel or assist any attorneys or their clients in
the presentation or prosecution of any disputes, differences, grievances,
claims, charges, or complaints by any third Party against the Company
and/or any officer, director, employee, agent, representative, shareholder
or attorney of the Company, unless under a subpoena or other court order to
do so.
9. Non-Disparagement. Each Party agrees to refrain from any defamation,
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libel or slander of the other, or tortious interference with the contracts
and relationships of the other.
11. Consulting Agreement Xx. Xxxxxxxxxxx shall be assigned consulting tasks by
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the President and Chief Executive Officer of the Company related to (i)
participating in development of financing strategies (ii) participating in
business development activities as directed by the President and CEO, and
(iii) such other duties of a similar nature as may be assigned by the
President and Chief Executive Officer of the Company. The term of your
consulting service will continue through the Termination Date, unless
modified by mutual agreement in writing.
12. General Provisions.
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(a) This letter will be governed by the laws of the State of California,
applicable to agreements made and to be performed entirely within such
state.
(b) This letter agreement sets the entire agreement and understanding
between VidaMed and you relating to your service as Executive Chairman
and supersedes all prior verbal discussions between us.
(c) This agreement will be binding upon your heirs, executors,
administrators and other legal representatives and will be for the
benefit of VidaMed and its respective successors and assigns.
Please acknowledge and confirm your acceptance of this letter by signing
and returning the enclosed copy of this letter as soon as possible.
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VIDAMED, INC.
By /s/
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Xxxxx Xxxxxxxx
President and Chief Executive Officer
Member of Board of Directors
Agreed to and accepted this 31st day of August 1999.
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By /s/
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Xxxxx X. Xxxxxxxxxxx
Executive Chairman
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