Exhibit 10.72
GENERAL RELEASE AND SEPARATION
AGREEMENT
This General Release and Separation Agreement
(hereafter “ Agreement ”) is entered into
between Michael T. Gluk (the “ Executive ”), and
ArthroCare Corporation (the “ Company ”)
(collectively referred to as the “ Parties ”),
effective eight days after the Executive’s signature (the
“ Effective Date ”), unless he revokes his
acceptance as provided in Paragraph 7(b), below.
WHEREAS, the
Executive was the Senior Vice President and Chief Financial Officer
of the Company;
WHEREAS, the
Executive tendered his resignation, and the Company accepted such
resignation effective as of December 18, 2008;
WHEREAS, the
Company and the Executive now wish to document the termination of
their employment relationship and fully and finally to resolve all
matters between them;
THEREFORE, in
exchange for the good and valuable consideration set forth herein,
the adequacy of which is specifically acknowledged, the Executive
and the Company hereby agree as follows:
1.
Resignation of Employment . The Executive hereby
confirms his resignation of his employment and all positions that
the Executive held as an officer of the Company and all
subsidiaries of the Company, and the Company confirms its
acceptance of such resignations, effective December 18, 2008 (the
“Resignation Date”).
2.
Payment of Accrued Wages and Expenses . The
Executive shall be paid an amount equal to all accrued wages
through the Resignation Date, including accrued, unused vacation or
paid time off, less applicable withholding. The Company shall pay
the Executive these amounts within seven (7) days of the Effective
Date of this Agreement. The Executive shall be promptly
reimbursed for all reasonable and necessary expenses incurred and
submitted for reimbursement on or before December 31, 2008 in
accordance with the Company’s expense reimbursement
policies.
3.
Bonus for the Calendar Year Ending December 31, 2008
. The Executive agrees that he shall not be eligible for
a bonus for the calendar year ending December 31, 2008.
4.
Separation Payment . Within seven (7) days of the
Effective Date, the Company shall pay the Executive $128,900 (one
hundred twenty-eight thousand nine hundred dollars) (the
“Separation Payment”), less applicable
taxes. The Separation Payment shall be dated and
considered paid effective December 31, 2008.
5.
Equity Awards . All equity awards granted to the
Executive shall be treated in accordance with the terms of the
applicable Plan(s), Agreement(s) and Notice(s) of Grant.
6. [Intentionally
Omitted.]
7.
General Release of Claims .
(a) The
Executive, on behalf of himself and his executors, heirs,
administrators, representatives and assigns, hereby agrees to
release and forever discharge the Company and all predecessors,
successors and their respective parent corporations, affiliates,
related, and/or subsidiary entities, and all of their past and
present investors, directors, shareholders, officers, general or
limited partners, employees, attorneys, agents and representatives,
and employee benefit plans in which the Executive is or has been a
participant by virtue of his employment with the Company (the
“Company Parties”), from any and all claims, debts,
demands, accounts, judgments, rights, causes of action, equitable
relief, damages, costs, charges, complaints, obligations, promises,
agreements, controversies, suits, expenses, compensation,
responsibility and liability of every kind and character whatsoever
(including attorneys’ fees and costs), whether in law or
equity, known or unknown, asserted or unasserted, suspected or
unsuspected (collectively, “Claims”), which the
Executive has or may have had against such entities based on any
events or circumstances arising or occurring on or prior to the
date hereof or on or prior to the Resignation Date, arising
directly or indirectly out of, relating to, or in any other way
involving in any manner whatsoever the Executive's employment by
the Company or the separation thereof, and any and all claims
arising under federal, state, or local laws relating to employment,
including without limitation claims of wrongful discharge, breach
of express or implied contract, fraud, misrepresentation,
defamation, or liability in tort, claims of any kind that may be
brought in any court or administrative agency, any claims arising
under Title VII of the Civil Rights Act; the Civil Rights Act of
1866; the Sarbanes-Oxley Act; the Age Discrimination in Employment
Act; the Equal Pay Act; the Fair Labor Standards Act; the Employee
Retirement Income Security Act; the Americans with Disabilities
Act; the Family Medical Leave Act; and/or any other local, state or
federal law governing discrimination in employment and/or the
payment of wages and benefits; and claims arising under the SVP
Continuity Agreement entered into between the Company and the
Executive.
Notwithstanding
the generality of the foregoing, the Executive does not release the
following claims and rights:
(i) Claims
for unemployment compensation or any state disability insurance
benefits pursuant to the terms of applicable state law;
(ii) Claims
to continued participation in certain of the Company's group
benefit plans pursuant to the terms and conditions of the federal
law known as COBRA;
(iii) The
Executive’s right to file a charge with any state or federal
agency; provided, however, that the Executive does release his
right to secure any damages for the conduct alleged in such charge;
and
(iv) The
Executive’s rights under this Agreement, his rights as a
shareholder, and his right to indemnification from the Company
pursuant to the Company’s Certificate of
Incorporation, its Bylaws, the General Corporation Law of the State
of Delaware, any applicable statute or common law, any applicable
insurance policy, and the terms of the Indemnification Agreement
attached as Exhibit A hereto.
(b) In
accordance with the Older Workers Benefit Protection Act of 1990,
the Executive acknowledges that he is aware of the
following:
(i)
This Section 7, and this Agreement are written in a manner
calculated to be understood by the Executive.
(ii)
The waiver and release of claims under the Age Discrimination in
Employment Act contained in this Agreement does not cover rights or
claims that may arise after the date on which the Executive signs
this Agreement.
(iii) This
Agreement provides for consideration in addition to anything of
value to which the Executive is already entitled.
(iv) The
Executive has been advised to consult an attorney before signing
this Agreement.
(v)
The Executive has been granted forty-five (45) days after he
is presented with this Agreement to decide whether or not to sign
this Agreement. If the Executive executes this Agreement
prior to the expiration of such period, he does so voluntarily and
after having had the opportunity to consult with an attorney, and
hereby waives the remainder of the consideration period.
(vi) The
Executive has the right to revoke this Agreement within seven (7)
days of signing it. In the event this Agreement is
revoked, it will be null and void in its entirety, and the
Executive will not receive the benefits of this Agreement, except
for the payment of accrued wages, unused vacation, and unreimbursed
business expenses as of the Resignation Date.
If the
Executive wishes to revoke this agreement, he must deliver written
notice stating that intent to revoke, in accordance with the notice
provisions of Section 14, on or before 5:00 p.m. on the seventh
(7 th
) day after the date on which the
Executive signs this Agreement.
8.
Nondisparagement . The Executive agrees that
neither he nor anyone acting by, through or in concert with him
shall disparage or otherwise communicate negative statements or
opinions about the Company, its Board members, officers, employees
or business. The Company agrees that neither its Board
members nor its officers shall disparage or otherwise communicate
negative statements or opinions about the
Executive. Notwithstanding the foregoing, nothing herein
shall be construed to prohibit any person from making truthful
statements to any governmental agency or providing truthful
testimony under oath in any legal or administrative
proceeding.
9.
Cooperation . The Executive agrees to give
reasonable cooperation, at the Company’s request and with the
assistance of counsel of his choosing, in any pending or future
litigation or arbitration brought against the Company and in any
investigation the Company may conduct. The Company shall
reimburse the Executive for all expenses (excluding
attorney’s fees) reasonably incurred by him in compliance
with this Section 9. Notwithstanding the foregoing, the
Company shall have no obligation to pay the Executive for time
spent and expenses incurred by the Executive in any pending or
future litigation or arbitration where the Executive is a
co-defendant or party to the arbitration or litigation, unless the
Executive is entitled to indemnification from the Company pursuant
to the Company’s Certificate of Incorporation, its Bylaws,
the General Corporation Law of the State of Delaware, any
applicable statute or common law, any applicable insurance policy,
and the terms of the Indemnification Agreement.
10.
Executive’s Representations and Warranties.
The Executive represents and warrants that:
(a) He
has been paid all wages owed to him by the Company, including all
accrued, unused vacation or paid time off, through the Resignation
Date;
(b) During
the course of the Executive’s employment, he did not sustain
any injuries for which he might be entitled to compensation
pursuant to applicable workers compensation law;
(c) The
Executive has not initiated any adversarial proceedings of any kind
against the Company or against any other person or entity released
herein, nor will he do so in the future, except as specifically
allowed by this Agreement.
11.
Confidential Information; Return of Company Property
. The Executive hereby expressly confirms his continuing
obligations to the Company pursuant to the Employment, Proprietary
Information and Invention Assignment Agreement (the
“Confidentiality Agreement”) executed by the Executive
on December 1, 2004.
The Executive
shall deliver to the Company within 10 days of the Resignation Date
all originals and copies of correspondence, drawings, manuals,
letters, notes, notebooks, reports, programs, plans, proposals,
financial documents, or any other documents concerning the
Company’s customers, business plans, marketing strategies,
products, processes or business of any kind and/or which contain
proprietary information or trade secrets which are in the
possession or control of the Executive or his agents or
representatives.
The Executive
shall return to the Company within 10 days of the Resignation Date
all equipment of the Company in his possession or
control. However, the Company agrees that the Executive
shall be entitled to retain possession of the cell phone he was
using as of the Resignation Date.
12.
In the Event of a Claimed Breach . All
controversies, claims and disputes arising out of or relating to
this Agreement, including without limitation any alleged violation
of its terms, shall be resolved final and binding arbitration
before a single neutral arbitrator in Austin, Texas in accordance
with the Employment Dispute Resolution Rules of the American
Arbitration Association (“AAA”). The arbitration shall
be commenced by filing a demand for arbitration with the AAA within
14 (fourteen) days after the filing party has given notice of such
breach to the other party. The arbitrator shall award
the prevailing party attorneys’ fees and expert fees, if
any. Notwithstanding the foregoing, it is acknowledged
that it will be impossible to measure in money the damages that
would be suffered if the parties fail to comply with any of the
obligations imposed on them under Section 11(a) and (b) hereof, and
that in the event of any such failure, an aggrieved person will be
irreparably damaged and will not have an adequate remedy at
law. Any such person shall, therefore, be entitled to
injunctive relief, including specific performance, to enforce such
obligations, and if any action shall be brought in equity to
enforce any of the provisions of Section 11(a) and (b) of this
Agreement, none of the parties hereto shall raise the defense that
there is an adequate remedy at law..
13.
Choice of Law . This Agreement shall in all
respects be governed and construed in accordance with the laws of
the State of Texas, including all matters of construction, validity
and performance, without regard to conflicts of law
principles.
14.
Notices . All notices, demands or other
communications regarding this Agreement shall be in writing and
shall be sufficiently given if either personally delivered or sent
by facsimile or overnight courier, addressed as follows:
15.
Severability . Except as otherwise specified
below, should any portion of this Agreement be found void or
unenforceable for any reason by a court of competent jurisdiction,
the parties intend that such provision be limited or modified so as
to make it enforceable, and if such provision cannot be modified to
be enforceable, the unenforceable portion shall be deemed severed
from the remaining portions of this Agreement, which shall
otherwise remain in full force and effect. If any
portion of this Agreement is so found to be void or unenforceable
for any reason in regard to any one or more persons, entities, or
subject matters, such portion shall remain in full force and effect
with respect to all other persons, entities, and subject
matters. This paragraph shall not operate, however, to
sever the Executive's obligation to provide the binding release to
all entities intended to be released hereunder.
16.
Understanding and Authority . The parties
understand and agree that all terms of this Agreement are
contractual and are not a mere recital, and represent and warrant
that they are competent to covenant and agree as herein
provided.
17.
Integration Clause . This Agreement contains the
entire agreement of the parties with regard to the separation of
the Executive's employment, and supersedes any prior agreements as
to that matter. This Agreement may not be changed or modified, in
whole or in part, except by an instrument in writing signed by the
Executive and an authorized officer of the Company.
18.
Execution in Counterparts . This Agreement may be
executed in counterparts with the same force and effectiveness as
though executed in a single document.
The parties
have carefully read this Agreement in its entirety; fully
understand and agree to its terms and provisions; and intend and
agree that it is final and binding on all parties.
IN WITNESS
WHEREOF, and intending to be legally bound, the parties have
executed the foregoing on the dates shown below.
EXHIBIT A
INDEMNIFICATION
AGREEMENT
This Indemnification Agreement (the “
Agreement ”) is made as of December 17, 2008 by and
between ArthroCare Corporation, a Delaware corporation (the “
Company ”), and Michael T. Gluk (the “
Indemnitee ”), with effect as of the first date of the
Indemnitee’s employment with the Company.
RECITALS
The Company and Indemnitee recognize the
increasing difficulty in obtaining liability insurance for
directors, officers and key employees, the significant
increas