This Separation Agreement (“Agreement”) and Release, which is attached hereto and incorporated by reference as Exhibit A (“Release”), are made by and between Wesley G. Peterson on behalf of himself, his agents, heirs, executors, administrators, and attorneys (“Peterson” or “Employee”) and Optical Sensors Incorporated d/b/a väsamed and its related corporations, parent corporation, subsidiaries, successors and assigns, present or former officers, directors, shareholders, agents, assigns, employees, and attorneys, delegates, benefit plans and plan administrators, and insurers, whether in their individual or official capacities (“Employer” or “väsamed”).
WHEREAS, the parties to this Agreement have mutually agreed to settle and resolve all actual and potential claims, threatened causes of action, and matters arising out of Employee’s employment with and separation from Employer, and which have been or could be brought against Employer; and
WHEREAS, the parties to this Agreement have considered their rights, options and alternatives under this Agreement and the attached Release.
NOW, THEREFORE, in consideration of the foregoing recitals and all of the terms and conditions set forth herein, the parties agree as follows:
1. Separation Date . By this Agreement, the Parties jointly agree that Employee’s last date of employment with Employer shall be effective at the end of business on March 31, 2006 (“Separation Date”). Until the Separation Date, Employee will continue to receive his full current salary, and will continue his full current participation in the Employer’s employee benefit plans, consistent with the terms of those plans.
2. Release . The Employee will execute the Release attached hereto as Exhibit A on March 31, 2006, or such other date mutually agreed upon in writing by the parties.
3. Payment and other Consideration . The Employer will, after receipt of an executed Agreement and Release, and after the expiration of all rescission periods regarding that Release, provide the Employee with the following consideration:
The foregoing Severance Payment shall be subject to legally required state and federal income tax withholding, employee FICA contributions, and any other deductions from gross pay required by law.
4. Compliance with Prior Agreements and Employer Policies Regarding Confidentiality . The Employee remains bound by the continuing obligations to which he agreed under his Employee Non-Compete Agreement and Employee Confidentiality and Assignment of Inventions Agreement, the terms of which are hereby incorporated by reference into this Agreement.
5. Employee Warranties and Covenant Not to Sue . Employee warrants and represents that he has not heretofore assigned or transferred in any manner, or purported to assign or transfer in any manner, to any person or entity, any claim or portion thereof or interest therein that is the subject of this Agreement. Employee further warrants that he has not filed nor caused to be filed any claims, complaints, or actions against Employer before any federal, state, or local court, administrative agency, arbitration organization, or other forum. Employee further understands that he will not have any right to receive or retain the payments described in Section 3 of this Agreement if he commences or is part of a legal action that is based on any claim waived under the Release. Upon the occurrence of any such event (aside from an action brought to challenge the validity of a release of claims covered by the Age Discrimination in Employment Act or the Older Worker’s Benefit Protection Act), the Employee will forfeit to the Employer the payments described in Section 3 of this Agreement, and the value of any other consideration he received pursuant to this Agreement. Employee will also be liable to Employer for attorneys fees and costs directly incurred by the Employer in defending any claim released by Employee under this Agreement.
This covenant not to sue does not apply to an action brought to challenge the validity of a release of claims covered by the Age Discrimination in Employment Act or the Older Worker’s Benefit Protection Act.
6. Non-Disparagement . The parties to this Agreement agree that they will make no disparaging comments regarding the other parties in any respect or make any comments concerning any aspect of their relationship or the conduct or events which precipitated Employee’s separation or negotiation of this Agreement. Furthermore, each party agrees not to assist or encourage in any way any individual or group of individuals to bring or pursue a lawsuit, charge, complaint, or grievance, or make any other demands against the other party. In any and all future proceedings of whatever nature, each party agrees that he/it will testify truthfully and will testify against the other party to this Agreement only to the extent that he/it is compelled to do so by a lawfu