Exhibit 10.4
SEPARATION AND GENERAL RELEASE
AGREEMENT
This 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
November 15, 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 desire to enter into this
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 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.
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1
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Employee
Initial ___________________
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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:
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(a)
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Cash
Severance Payments . A
cash severance payment equal to $223,800, less applicable
withholdings, to be paid in semi-monthly installment payments of
$9,325 for a period of twelve (12) months. Such installment
payments shall commence on November 30, 2008 and shall be paid
on the fifteenth and the last day of each month for such
twelve-month period in accordance with the Company’s normal
payroll procedures; provided , however , that the
Company shall have no obligation to make such cash severance
payments unless Executive signs and returns this Agreement to the
Company and the applicable seven-day revocation period expires
without revocation by Executive prior to November 22,
2008.
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(b)
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Bonus
Payment . A lump sum cash
payment equal to $51,200 to be paid no later than November 30,
2008.
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(c)
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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.
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(d)
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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).
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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. Executive Release of Rights
and Agreement Not to Sue . 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
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2
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Employee
Initial ___________________
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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 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.
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 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
