Exhibit 10.32
SETTLEMENT AGREEMENT AND
RELEASE
This AGREEMENT is by and between NMT
Medical, Inc., a Delaware corporation (the “Company”)
and John E. Ahern (the “Executive”).
WHEREAS, the Executive and the
Company previously entered into a Third Amended and Restated
Employment Agreement dated October 18, 2007 (the
“Employment Agreement”), providing for the
Executive’s employment by the Company as its President and
Chief Executive Officer;
WHEREAS the Executive has resigned
from his employment with the Company and from all positions held
including but not limited to President, Chief Executive Officer and
Member of the Board of Directors;
WHEREAS the Company and the
Executive wish to resolve all claims relating to the
Executive’s separation from employment with the Company
including, but not limited to, any claims arising out of either
party’s obligations under the Employment
Agreement.
NOW, THEREFORE, in consideration of
the promises and conditions set forth below, and for other good and
valuable consideration, the sufficiency of which is hereby
acknowledged, the Parties agree as follows:
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1.
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Resignation Date . The Executive agrees that the effective date
of the Executive’s resignation from the Company is
February 9, 2009 (the “Resignation Date”). The
Executive further agrees that as of the Resignation Date, he shall
resign from any and all positions he holds with the Company,
including but not limited to President, Chief Executive Officer and
Member of the Board of Directors of the Company.
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2.
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Consideration . In return for the Executive’s timely
execution of this Agreement, including the release of claims in
section 3 below, and the Executive’s compliance with the
terms of this Agreement, the Company agrees to provide the
Executive with the following severance benefits (“the
Severance Benefits”):
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a. The Company shall
pay the Executive’s salary for a period of twelve
(12) months from the Resignation Date, for a total of
$460,000, less all applicable federal and state taxes, which
amounts shall be payable on a bi monthly payment schedule on the
15 th and the last day of the month
in arrears, in accordance with the Company’s regular payroll
practices;
b. On or about February 28,
2009, the Company shall pay the Executive a bonus for 2008, in the
amount of $55,200, less all applicable federal and state
taxes;
c. Provided the Executive timely
elects and remains eligible to continue receiving health benefits
pursuant to the federal COBRA law, for a period of eighteen
(18) months from the Resignation Date (the “Benefits
Continuation Period”), the Company shall pay the premium for
dental insurance coverage on behalf of the Executive and eligible
family members. If at any
time during the Benefits
Continuation Period, the Executive ceases to remain eligible to
continue such dental coverage pursuant to the federal COBRA law,
for the remaining portion of the Benefits Continuation Period, the
Company shall pay the Executive, in monthly installments, an amount
equal to the premium for dental insurance coverage that the Company
would have paid on the Executive’s behalf had he remained
eligible for COBRA coverage. In addition, notwithstanding anything
to the contrary in this Agreement, for a period of eighteen
(18) months from the Resignation Date, the Company shall
reimburse the Executive on a monthly basis for the amounts paid by
the Executive in connection with continuing certain health
insurance coverage obtained through the Executive’s former
employer, (the “Outside Health Insurance”) net of all
taxes and required deductions, to the same extent that the Company
had been paying for such Outside Health Insurance immediately prior
to the Resignation Date.
d. The Company represents and
warrants that attached as Exhibit A hereto is a true and correct
table setting forth all of the stock options issued to the
Executive (the “Options”). The Company agrees that any
and all Options granted to the Executive that were unvested prior
to the Resignation Date are accelerated and are immediately vested
as of the Resignation Date. The Company agrees that the exercise
period of all Options is extended through July 31, 2010,
notwithstanding anything to the contrary set forth in any agreement
relating to such Options. The Company represents that this
subparagraph (d) shall be deemed to be an amendment to the
Options as if fully set forth in each agreement relating to the
Options; and further that the Company has obtained any and all
approvals and consents necessary to grant the forgoing amendments;
and further that the Company shall promptly take any and all
actions to effectuate the foregoing, if required.
e. The Company shall pay on the date
hereof to the Executive an amount equal to $35,384.62, less all
applicable federal and state taxes, representing all accrued but
unused vacation owed to the Executive.
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3.
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Release
. In consideration of the benefits
provided by the Company in Section 2 of this Agreement, the
Executive hereby fully, forever, irrevocably and unconditionally
releases, remises and discharges the Company and its current and
former officers, directors, owners, stockholders, agents,
employees, attorneys, corporate affiliates, parents, and
subsidiaries (collectively, the “Released Parties”),
from any and all claims, charges, complaints, suits, demands,
actions, causes of action, rights, debts, sums of money, costs,
accounts, reckonings, covenants, contracts, agreements, promises,
doings, omissions, damages, executions, obligations, liabilities,
and expenses (including attorneys’ fees and costs), of every
kind and nature which he ever had or now has against the Released
Parties including, but not limited to, those claims arising out of
the Executive’s employment with and/or separation from the
Company, including, but not limited to, all claims under Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq ., the Americans With Disabilities Act of 1990, 42
U.S.C. § 12101 et seq ., the Family and Medical
Leave Act, 29 U.S.C. § 2601 et seq ., the Worker
Adjustment and Retraining Notification Act (“WARN”), 29
U.S.C. § 2101 et seq ., Section 806 of the
Corporate and Criminal Fraud Accountability Act of 2002, 18 U.S.C.
§ 1514(A), the Rehabilitation Act of 1973, 29 U.S.C. §
701 et seq ., Executive Order 11246, Executive Order
11141, the Fair Credit Reporting Act, 15 U.S.C. § 1681
et seq ., the Employee Retirement Income Security Act
of 1974 (“ERISA”), 29 U.S.C. § 1001 et
seq ., the Massachusetts Fair
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Employment Practices Act., M.G.L. c.
151B, § 1 et seq ., the Massachusetts Civil
Rights Act, M.G.L. c. 12, §§ 11H and 11I, the
Massachusetts Equal Rights Act, M.G.L. c. 93, § 102 and M.G.L.
c. 214, § 1C, the Massachusetts Labor and Industries Act,
M.G.L. c. 149, § 1 et seq ., the Massachusetts
Privacy Act, M.G.L. c. 214, § 1B, and the Massachusetts
Maternity Leave Act, M.G.L. c. 149, § 105D, all as amended;
all common law claims including, but not limited to, actions in
tort, defamation and breach of contract, including any claims under
the Employment Agreement; and any claim or damage arising out of
the Executive’s employment with or separation from the
Company (including a claim for retaliation) under any common law
theory or any federal, state or local statute or ordinance not
expressly referenced above; provided, however, that nothing in this
Agreement prevents the Executive from filing, cooperating with, or
participating in any proceeding before the EEOC, a state Fair
Employment Practices Agency, or before any other administrative,
state or federal agency (except that the Executive acknowledges
that the Executive may not be able to recover any monetary benefits
in connection with any such claim, charge or proceeding). Nothing
in this Agreement or in the foregoing release shall be construed to
modify, limit, release or otherwise affect any indemnification
obligations that the Company has to the Executive in his capacity
as an officer, director, consultant, employee and agent of the
Company and, to the extent applicable, each subsidiary of the
Company, under the Certificate of Incorporation of the Company, the
Bylaws, Section 145 of the Delaware General Corporation Law,
and under any applicable Directors and Officers Insurance
policy.
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Likewise, the Company fully,
forever, irrevocably and unconditionally releases, remises and
discharges the Executive from any and all claims, charges,
complaints, suits, demands, actions, causes of action, rights,
debts, sums of money, costs, accounts, reckonings, covenants,
contracts, agreements, promises, doings, omissions, damages,
executions, obligations, liabilities, and expenses (including
attorneys’ fees and costs), of every kind and nature which it
ever had or now has against the Executive including, but not
limited to, those claims arising out of the Executive’s
employment with and/or separation from the Company; provided,
however, that nothing in this Agreement prevents the Company
f
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