CONFIDENTIAL SEPARATION AGREEMENT
AND RELEASE
THIS
AGREEMENT is made and entered into between Marc R. Sportsman
(“Employee”) and ATS MEDICAL, INC. (“the
Company”).
WHEREAS,
the Employee was employed by the Company; and
WHEREAS,
the Employee signed an Employment Agreement dated April 15,
2003, and
WHEREAS,
the Employee’s employment is being terminated, and
WHEREAS,
the purpose of this Separation Agreement is to set forth the terms
and conditions under which the Employee and the Company will sever
their employment relationship.
NOW,
THEREFORE, in consideration of the recitals stated above and the
mutual agreements, covenants, and provisions contained in this
Separation Agreement, the parties agree as follows:
Termination . The Employee and the Company agree that the
effective date of the Employee’s termination is
February 2, 2007. Employee will, however, be paid through
February 16, 2007.
As consideration for the terms contained in this
Agreement, including the Employee’s release of claims, his
agreement to maintain the confidentiality of the Agreement, and his
promise to abide by the restrictive covenants in his Employment
Agreement, the Employee will receive 26 biweekly payments of nine
thousand five hundred forty and 64/100 dollars ($9,540.86). The
total amount of such payments will be two hundred forty eight
thousand sixty two and 36/100 dollars ($248,062.36), less
applicable withholdings for taxes.
The Company will also pay health insurance
premiums for the Employee through February 2008, consistent
with Employee’s current compensation program.
Employee shall have no right to any
compensation, benefits, salary or bonus beyond that referenced in
the preceding subparagraphs of this Section 2. These sums will
only be paid, however, provided the rescission period referred to
in Section 7 has expired without rescission of this Agreement
by the Employee.
The Company will pay the Employee and the
Employee will accept from the Company, in full and final
settlement, the above-referenced consideration.
Employee agrees
that he is solely responsible for any and all liability created
under the federal and state tax laws and agrees to indemnify the
Company and hold it harmless for all such liability or obligations,
if any. Further, the Company makes no warranty concerning
the
treatment of
any sums paid hereunder under said laws and employee has not relied
upon any such warranty.
The Employee
understands that no additional money is to be paid or other
consideration given to him on account of his employment or
termination of employment with the Company other than the
consideration referenced in this Agreement.
Full
Compensation . The payments that will be made on
Employee’s behalf to the Employee for his benefit pursuant to
this Separation Agreement will compensate him for and extinguish
any and all of his claims arising out of his employment with the
Company or his employment termination, including but not limited to
claims for attorneys’ fees and costs, and any and all claims
for any type of legal or equitable relief.
Benefits . The Employee is a participant in various
employee benefit plans sponsored by the Company. The payment of
benefits, including the amounts and the timing thereof, will be
governed by the terms of the employee benefit plans, except to the
extent those rights have been explicitly extended in this
Agreement. The Company will answer any reasonable questions that
the Employee may have from time to time and will offer him the same
assistance given other participants in employee benefit plans so
long as he is entitled to benefits thereunder.
Records,
Documents and Property . Employee will return to the Company
all its property, including any keys, cell phones, computers, and
any documents or property of the Company. The Employee will also
confirm that he has no duplicates of any documents or items
returned.
General
Release . In consideration of the payments and other
undertakings stated herein, the Employee will sign a separate
Release in the form attached hereto as Exhibit A at the time
he signs this Separation Agreement. This Separation Agreement shall
not be interpreted or construed to limit the General Release in any
manner, or vice versa.
Rescission . Employee will have up to 21 days to
consider this Separation Agreement before signing it. Once this
Agreement is executed, Employee may rescind this Separation
Agreement within seven (7) calendar days to reinstate federal
Age Discrimination in Employment Act claims and within fifteen
(15) calendar days to reinstate Minnesota Human Rights Act
claims under state law. To be effective, any rescission within the
relevant time periods must be in writing and delivered to the
Employer, in care of Ms. Barb Searle, ATS Medical, Inc., 3905
Annapolis Lane, Suite 105, Minneapolis, Minnesota, 55447,
either by hand or by mail within the 15-day period. If sent by
mail, the rescission must be (1) postmarked within the 15-day
period; (2) properly addressed to the Employer; and
(3) sent by certified mail, return receipt
requested.
If the Employee
gives notice of rescission within the 15-day time period, he shall
no longer be entitled to the payments or benefits referred to in
Section 2, and his original involuntary termination shall
remain as stated above.
Confidentiality of Terms . The terms of this Separation
Agreement and Release will be treated as confidential by the
Employee and he shall not disclose its terms to anyone except the
Employee may disclose the terms of this Agreement to his legal
counsel,
professional
accountant, tax or professional financial advisor, spouse or as may
be required by law or court order.
Restrictions of Employment Agreement . The restrictions
on the use of inventions, confidential information, competitive
activities, and the provisions dealing with the enforcement of
those r
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