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Exhibit 10.5 SEPARATION AGREEMENT AND RELEASE OF
CLAIMS This Separation Agreement and Release of Claims
(this " Agreement ") is made by and between me, Patrick
Spangler, and ev3 Endovascular, Inc. (" ev3 " or the "
Company "). The Company and I have agreed to separate
according to the terms set forth in this Agreement. I do not
believe that I have any claims against the Company, but I
nevertheless have agreed to resolve any actual and potential claims
arising out of my employment with and separation from the Company
by entering into this Agreement. IN CONSIDERATION OF THIS ENTIRE
SEPARATION AGREEMENT AND RELEASE OF CLAIMS, I AGREE AS FOLLOWS:
Definitions . I intend all words used in this
Agreement to have their plain meanings in ordinary English.
Specific terms that I use in this Agreement have the following
meanings:
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A.
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I , me , and my include both me and anyone
who has or obtains any legal rights or claims through me.
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B.
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ev3 or the Company means ev3 Endovascular, Inc.,
formerly known as ev3 Inc., any past or present company related to
ev3 Endovascular, Inc. and their predecessors, successors, parents,
subsidiaries, affiliates, joint venture partners, and divisions;
their present and past officers, directors, committees,
shareholders, and employees, whether in their individual or
official capacities; any company providing insurance to them, in
the present or past; present and past fiduciaries of any employee
benefit plan sponsored or maintained by them (other than
multiemployer plans); their attorneys; and anyone who acted on
their behalf or on instructions from them.
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C.
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Termination Date means the date on which my employment
with the Company ends, as set forth in Exhibit 1 to
this Agreement (Notice of Scheduled Termination Date and Statement
of Special Consideration).
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D.
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My Claims means all of my rights that I now have to any
relief of any kind from the Company, including without
limitation:
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1.
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All claims arising out of or relating to my employment with the
Company or the termination of that employment;
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2.
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All claims, whether asserted on my behalf or on behalf of any
third party, arising out of or relating to the statements, actions,
or omissions of the Company;
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3.
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All claims for any alleged unlawful discrimination, harassment,
retaliation or reprisal, or other alleged unlawful practices
arising under any federal, state, or local statute, ordinance, rule
or regulation, including without limitation, claims under Title VII
of the Civil Rights Act of 1964 (Title VII), the Age Discrimination
in Employment Act (the ADEA), the Older
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Workers Benefit Protection Act of 1990 (the OWBPA), the
Americans with Disabilities Act, 42 U.S.C. § 1981 (the ADA),
the Employee Retirement Income Security Act (ERISA), the Equal Pay
Act (the EPA), the Worker Adjustment Retraining and Notification
Act (WARN), the Family and Medical Leave Act (FMLA), the Minnesota
Human Rights Act (MHRA), the California Labor Code § 1401, the
California Fair Employment and Housing Act, Cal Gov’t Code
§ 12900 et seq., any workers’ compensation
non-interference or non-retaliation statutes, and any other state
or local anti-discrimination, anti-retaliation, and fair employment
practices laws, ordinances, rules and regulations;
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4.
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All claims for alleged: wrongful discharge; breach of contract
(including, but not limited to, claims for breach of any written or
verbal employment agreement); breach of implied contract; failure
to keep any promise; breach of an express or implied covenant of
good faith and fair dealing; breach of fiduciary duty; estoppel;
whistleblower or other illegal retaliation or reprisal; defamation;
infliction of emotional distress; fraud; misrepresentation;
negligence; harassment; constructive discharge; assault; battery;
false imprisonment; invasion of privacy; interference with
contractual or business relationships; any other wrongful
employment practices; and a violation of any other principle of
common law;
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5.
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All claims for compensation of any kind (except those expressly
provided in or excepted from this Agreement), including without
limitation, salary, bonuses, commissions, expense reimbursements,
stock options or other stock-based compensation, used or accrued
vacation pay, personal time pay, personal time reservoir, sick pay,
severance payments under any past, pending or future severance pay
plans, short and/or long term disability benefits, life insurance
benefits, accidental death and disability insurance benefits,
dental, medical and vision benefits, retirement savings or 401(k)
or 403(b) contributions, and payments for any other type of
benefit, leave of absence or time off of work;
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6.
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All claims for back pay, front pay, reinstatement, injunctions
or other equitable relief, compensatory damages, damages for
alleged personal injury, liquidated damages, and punitive damages;
and
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7.
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All claims for attorneys’ fees, disbursements, costs, and
interest.
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However , the term My Claims does not
include any claims that the law does not allow to be waived or any
claims that may arise after the date on which I sign this
Agreement, including my right to claim the following: unemployment
insurance benefits; workers’ compensation benefits related to
any injury I have sustained in the course of my duties for the
Company to the extent that such benefits are awarded by a state
agency or agreed upon consistent with applicable state law; vested
post-termination benefits under any 401(k) or similar retirement
benefit
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plan sponsored by the Company in which I am currently a
participant; vested post-termination benefits to which I am
entitled under any stock option plan; continuation of health
insurance pursuant to COBRA or similar state law; my rights to
assert claims that are based on events occurring after this
Agreement becomes effective; my rights, if any, under the Uniformed
Services Employment and Reemployment Rights Act (USERRA) 38
U.S.C. § 4301, et seq .; and or my rights to enforce
the terms of this Agreement or that certain Consulting Agreement
which I am executing contemporaneous with this Agreement.
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E.
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Special Consideration means the severance pay and other
benefits to which I am entitled under the Severance Pay Plan in
effect on my Termination Date, as described more fully in
Exhibit 1 to this Agreement.
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The term Special Consideration does not include the
following amounts which will be paid to me regardless of whether I
sign this Agreement:
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1.
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My base salary for the time I worked through the end of business
on the Termination Date;
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2.
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Any accrued but unused PTO to which I am entitled;
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3.
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Any unpaid business expenses incurred by me through the
Termination Date in the course of and pursuant to the
Company’s expense reimbursement policies and procedures;
and
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4.
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The Annual Incentive Bonus to which I am entitled with respect
to 2008 provided I remain in the Company’s employ through
December 31, 2008.
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Resignation of Employment and of Status as Officer
. I understand and agree that this Agreement is contingent upon
my tender to the Company, on or before January 9, 2009, in a
form designated by the Company, of my written resignation of my
position as Senior Vice President and Chief Financial Officer of
ev3 Inc., from any and all other officer and director positions I
may hold with ev3 Inc. and any of its subsidiaries and as an
employee of ev3 Endovascular, Inc., in each case effective as of
January 19, 2009 (the "Effective Date"). I understand that
this requirement does not compel me to sign this Agreement prior to
the 21 day time to consider period referenced below.
Agreement to Release My Claims and Covenant Not to Sue
. In exchange for the Special Consideration to be paid by the
Company and other undertakings of the Company stated in this
Agreement, I agree to give up and release all of My Claims against
the Company as defined above. I understand and acknowledge that the
Special Consideration is of significant value to me and that I am
not entitled to the Special Consideration described above unless I
sign, and do not revoke, this Agreement. In exchange for this
Special Consideration, I give up all of My Claims against the
Company. The Special Consideration I am receiving is a full and
fair payment for the release of all My Claims. In exchange for my
agreement to release My Claims, I am receiving satisfactory
consideration ( i.e. monetary and other compensation) from
the Company to which I
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am not otherwise entitled by law, contract, or under any Company
policy. For the purpose of implementing a full and complete release
and discharge of all claims, this Agreement is intended to include,
without limitation, all claims which I may have against the Company
but do not know or suspect to exist in my favor at the time of
execution of this Agreement which, if known or suspected, would
materially affect my decision to execute the Agreement. Except as
provided below, I will not, directly or indirectly, whether on
behalf of myself or any third party, bring any lawsuits against the
Company or make any demands against the Company for any kind
compensation, damages, or other relief. If I do institute any claim
that is not excepted or excluded as provided in this Agreement, I
agree that the Company will be entitled to cease all payments to me
of any unpaid portion of the Special Consideration, to recoup from
me the Special Consideration already paid under this Agreement, to
recover all costs and expenses of defending against the suit
incurred by the Company, including reasonable attorneys’
fees, and to recover any costs and fees, including attorneys’
fees, incurred in connection with the recoupment of the Special
Consideration. The Company has made no representations or
warranties to me regarding the tax treatment of the payments
provided under this Agreement. I understand that I am solely
responsible for all federal, state, and local income and any other
taxes that may be due on account of these payments. The Company has
advised me that it intends that the benefits provided under this
Agreement be exempt from the requirements of Section 409A of
the Code by reason of the separation pay exception under Treas.
Reg. Sec. 1.409A-1(b)(9), and that the short term deferral
exception under Treas. Reg. Sec. 1-409A-1(b)(4) and this Agreement
will be construed and administered in a manner that is consistent
with and gives effect to such intention. I understand and agree
that with respect to payments under this Agreement, for purposes of
Section 409A, each severance payment will be considered one of
a series of separate payments. Waiver of Rights to Additional
Recovery. Subject to the exceptions and exclusions set
forth below, by signing this Agreement, I waive any right I may
have to any form of recovery or compensation from the Company,
whether related to my employment or otherwise, arising out of or
related to any legal, administrative or other charge, claim,
complaint, or action which has been, is, or may be filed by me, on
my own behalf or on behalf of any third party, or which has been,
is, or may be filed by any third party on my behalf. I warrant,
except as provided in the following paragraph , that I have
not filed, otherwise commenced, or caused to be filed or otherwise
commenced, any claims, complaints, or actions against the Employer
before any federal, state, or local administrative agency or court,
other than the U.S. Equal Employment Opportunity Commission ("
EEOC ") or any other state or local fair employment or civil
rights enforcement agency. Exception. I understand
that this Agreement permits but does not in any way require
me to refrain from filing, to request dismissal or to request
withdrawal of any charges, grievances, petitions, or complaints
that I may have against the Company before the EEOC or other fair
employment or civil rights enforcement agency. I may take or
attempt to take any such action if I so choose.
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The Company warrants that, as of the
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