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Exhibit 10.5
FIRST AMENDMENT TO
SEPARATION AND GENERAL RELEASE AGREEMENT
This First Amendment to Separation and General Release Agreement
(this " Agreement ") is made by and between Kensey Nash
Corporation, a Delaware corporation (the " Company ") and
Wendy F. DiCicco (" Executive ") (the Company and Executive
referred to together as the " Parties "), effective as of
December 4, 2008.
WHEREAS , the Parties entered into that certain
employment agreement dated as of May 11, 2006, which was
renewed as of May 11, 2008 pursuant to a notice provided to
Executive on March 12, 2008 (the " Employment Agreement
");
WHEREAS , Executive desires to pursue other
interests;
WHEREAS , Executive voluntarily resigned from her
employment with the Company, effective as of November 15, 2008
(the " Separation Date ") and is not entitled to receive
severance benefits under the Employment Agreement;
WHEREAS , the Parties entered into a Separation and
General Release Agreement effective as of November 15, 2008
(the " Initial Agreement ") to provide for the payment of
certain severance benefits, which the Company agrees to provide
Executive in exchange for other rights and obligations provided for
under this Agreement, and to restate and reaffirm Executive’s
obligations under the restrictive covenant provisions contained in
the Employment Agreement; and
WHEREAS , the Parties desire to amend the Initial
Agreement to permit Executive to become employed by Globus Medical,
Inc.; and
WHEREAS , the Parties wish to avoid litigation and
controversy and fully resolve any and all past, present and future
disputes they may have relating to Executive’s employment
with, or separation of employment from, the Company.
NOW, THEREFORE , in consideration of the promises and the
mutual covenants and agreements set forth below, the receipt and
sufficiency of which are hereby acknowledged, Executive and the
Company hereby agree as follows:
1. Termination . Effective as of the Separation
Date, Executive’s employment with the Company, as well as any
and all positions she held with the Company or any affiliates are
terminated.
2. Accrued Obligations . In accordance with the
Company’s normal mode of executive salary payment, the
Company shall pay Executive any accrued, but unpaid, base salary as
of the Separation Date. Executive acknowledges that with such
payments, as well as the payments set forth below, Executive will
have received all compensation owed to Executive by
the Company. Except as specifically provided
below, Executive shall not be entitled to receive any compensation
from the Company following the Separation Date.
3. Severance . In consideration of Executive
entering into this Agreement and performing her obligations
hereunder, and in lieu of any other termination, severance or other
payment or benefit of any kind whatsoever, the Company shall
provide Executive with the following:
(a) Bonus Payment . A lump sum cash payment equal to
$51,200 to be paid no later than December 12, 2008.
(b) Accelerated Vesting of Stock Options . All of
Executive’s stock options to purchase shares of the
Company’s common stock (" Stock Options ") shall
become 100% vested as of the Separation Date and shall remain
exercisable for a period of twelve (12) months immediately
following the Separation Date, but in no event later than the
original term of the applicable Stock Option agreement. Any Stock
Options that remain unexercised at the end of such twelve-month
period (or, if sooner, at the expiration of the applicable Stock
Option term) will immediately be forfeited to the Company.
(c) Continued Welfare Benefits . All of Executive’s
health, dental and/or vision insurance coverage will cease on the
first day of the month following the Separation Date;
provided , however , that nothing herein will prevent
Executive from electing continuation coverage pursuant to the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended
( i.e. , 4980B of the Internal Revenue Code of 1986, as
amended, and Section 601 et. seq . of the Employee
Retirement Income Security Act of 1974, as amended).
Executive acknowledges and agrees that payment and provision of
all severance benefits under this Paragraph 3 are conditioned upon
Executive executing this Agreement and not rescinding, materially
breaching or threatening to materially breach any of the terms of
this Agreement (including, without limitation, the release of all
claims set forth in Paragraph 4 below).
4. Release of Rights and Agreement Not to Sue
.
(a) Executive (defined for purposes of this Paragraph 4 as
Executive and Executive’s agents, representatives, attorneys,
assigns, heirs, executors, and administrators) fully and
unconditionally releases the Company, its subsidiaries and
affiliates, and any of their past or present employees, agents,
insurers, attorneys, administrators, officers, directors,
shareholders, divisions, predecessors, successors, employee benefit
plans, and the sponsors, fiduciaries, or administrators of such
employee benefit plans (collectively, the " Released Parties
") from, and agrees not to bring any action, proceeding or suit
against any of the Released Parties regarding, any and all
liability, claims, demands, actions, causes of action, suits,
grievances, debts, sums of money, agreements, promises, damages,
back and front pay, costs, expenses, attorneys’ fees, and
remedies of any type, including without limitation those arising or
that may have arisen out of or in connection with Executive’s
employment with or termination of employment from the Company,
including, but not limited to, claims, actions or liability
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under: (a) Title VII of the Civil Rights Act
of 1964, the Civil Rights Act of 1991, the Civil Rights Act of
1866, the Age Discrimination in Employment Act, the Americans with
Disabilities Act, the Fair Labor Standards Act, the Family and
Medical Leave Act, the Workers Adjustment and Retraining
Notification Act, the Employee Retirement Income Security Act of
1974, the Pennsylvania Human Relations Act, and the Pennsylvania
Wage Payment and Collection Law, in each case as such act may be
amended; (b) any other federal, state or local statute,
ordinance, or regulation regarding employment, termination of
employment, or discrimination in employment; and (c) the
common law of any state relating to employment contracts, wrongful
discharge, defamation, wages or any other matter; provided ,
however , that said release and agreement not to sue shall
not prohibit Executive from bringing an action, proceeding or suit
arising out of the Company’s breach of any representation,
warranty, or obligation set forth in this Agreement.
(b) Company (defined for purposes of this Paragraph 4 as Company
and Company’s subsidiaries and affiliates, and any of their
past or present employees, agents, insurers, attorneys,
administrators, officers, directors, shareholders, divisions,
predecessors, successors, employee benefit plans) fully and
unconditionally releases the Executive and her agents,
representatives, attorneys, assigns, heirs, executors and
administrators, and the sponsors, fiduciaries, or administrators of
such employee benefit plans (collectively, the " Released
Parties ") from, and agrees not to bring any action, proceeding
or suit against any of the Released Parties regarding, any and all
liability, claims, demands, actions, causes of action, suits,
grievances, debts, sums of money, agreements, promises, damages,
back and front pay, costs, expenses, attorneys’ fees, and
remedies of any type, including without limitation those arising or
that may have arisen out of or in connection with Executive’s
employment with or termination of employment from the Company,
provided, however, that said release and agreement not to sue shall
not prohibit Company from bringing an action, proceeding or suit
arising out of the Executive’s breach of any representation,
warranty, or obligation set forth in this Agreement.
5. Revocation Period . Executive has the right to
revoke her release of claims under the Age Discrimination in
Employment Act described in Paragraph 4 (the " ADEA Release
") for up to seven days after Executive signs it. In order to do
so, Executive must sign and send a written notice of her revocation
decision to the Company with a copy to Katten Muchin Rosenman LLP
at the addresses provided in Paragraph 16, and such written notice
must be received by the Company no later than the eighth day after
Executive signs this Agreement. If Executive revokes the ADEA
Release, Executive will not be entitled to any payments or benefits
from the Company described in Paragraph 3 above.
6. Inventions . Executive agrees, on behalf of
herself, her heirs and personal representatives, that she will
promptly communicate, disclose and transfer to the Company free of
all encumbrances and restrictions (and will execute and deliver any
papers and take any action at any time deemed necessary by the
Company to further establish such transfer) all inventions and
improvements relating to the Company’s business originated or
developed by Executive solely or jointly with others during the
term of her employment with the Company. Such inventions and
improvements shall belong to the Company whether or not they are
patentable
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and whether or not patent applications are filed
thereon. Such transfer shall include all patent rights (if any) to
such inventions or improvements in the United States and in all
foreign countries. Executive further agrees, at the request of
Company, to execute and deliver, at any time after the effective
date of this Agreement, all assignments and other lawful papers
(which will be prepared at the Company’s expense) relating to
any aspect of the prosecution of such patent applications and
rights in the United
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