EXHIBIT
10.1
CONFIDENTIAL SEPARATION
AGREEMENT
AND GENERAL RELEASE OF ALL
CLAIMS
This Confidential Separation
Agreement and General Release of All Claims (the “
Agreement ”) is made by and between Northstar
Neuroscience, Inc. (“ Northstar ”) and Deborah
Sheffield (“ Employee ”) with respect to the
following facts:
A. Employee is currently employed by
Northstar pursuant to an Executive Employment Agreement dated
September 15, 2008, as amended by First Amendment to Executive
Employment Agreement dated January 27, 2009 (as amended,
“ Employment Agreement ”). Pursuant to
Employee’s Employment Agreement, Employee is entitled to
severance benefits in the event his employment is terminated under
certain circumstances.
B. Northstar is ceasing operations
and liquidating its assets. As a result, Employee’s
employment will cease effective April 30, 2009 or such earlier
date as Northstar and Employee may mutually agree (the “
Separation Date ”). Northstar wishes to reach an
amicable separation with Employee and assist Employee’s
transition to other employment.
C. Pursuant to the Employment
Agreement, the parties are entering into this Agreement. The
parties desire to settle all claims and issues that have, or could
have been raised, by Employee in relation to Employee’s
employment with Northstar and arising out of or in any way related
to the acts, transactions or occurrences between Employee and
Northstar to date, including, but not limited to, Employee’s
employment with Northstar or the termination of that employment, on
the terms set forth below.
THEREFORE, in consideration of the
promises and mutual agreements hereinafter set forth, it is agreed
by and between the undersigned as follows:
1. Agreement .
1.1 Termination of Employment
. Employee’s employment with Northstar is terminated by
Northstar, pursuant to Section 7.3 of the Employment
Agreement, effective on the Separation Date.
1.2 Severance Package .
Northstar agrees to provide Employee with the severance benefits
described in Section 7.3 of the Employment Agreement and in
this paragraph 1.2 (the “Severance Package”). Northstar
agrees to pay the severance payment provided for in the Employment
Agreement in a lump sum on the first regularly scheduled Northstar
pay day following the Effective Date of this Agreement as described
in paragraph 9.2 below. As a point of clarification regarding the
COBRA benefits described in the Severance Package, after
May 31, 2009, Northstar’s group health plan will
terminate and COBRA coverage will no longer be available.
Accordingly, if by May 1, 2009 Employee will not become
eligible to obtain health coverage through another employer by
June 1, 2009, Northstar will provide Employee with a lump sum
payment in the amount of $7,018 in an effort to help defray the
cost that Employee will incur in securing Employee’s own
health insurance coverage after May 31, 2009. The lump
sum payment will be made on or before May 31, 2009 and will be
subject to all applicable taxes. Employee acknowledges that
this lump sum payment made pursuant to this Paragraph is in full
satisfaction of any pre-existing Northstar obligation to provide
Employee with continued health insurance coverage after termination
of employment. Employee acknowledges and agrees that this Severance
Package constitutes adequate legal consideration for the promises
and representations made by Employee in this Agreement.
1.3 No Bonus for 2009 Service
. Employee acknowledges that she will not be entitled to a bonus
for any services rendered in 2009.
2. General Release
.
2.1 Employee unconditionally,
irrevocably and absolutely releases and discharges Northstar, and
any parent and subsidiary corporations, divisions and affiliated
corporations, partnerships or other affiliated entities of
Northstar, past and present, as well as Northstar’s
employees, officers, directors, agents, shareholders, successors
and assigns (collectively, “ Released Parties
”), from all claims related in any way to the transactions or
occurrences between them, directly or indirectly, to date, to the
fullest extent permitted by law, including, but not limited to,
Employee’s employment with Northstar, the termination of
Employee’s employment, Employee’s ownership of
Northstar stock, and all other losses, liabilities, claims,
charges, demands and causes of action, known or unknown, suspected
or unsuspected, arising directly or indirectly out of or in any way
connected with Employee’s employment with Northstar or
Employee’s status as a Northstar stockholder. This release is
intended to have the broadest possible application and includes,
but is not limited to, any securities-related claims and any claims
for breach of contract, wrongful termination, defamation,
employment discrimination, harassment, retaliation, and any other
tort, contract, common law, constitutional or other statutory
claims, arising under state, federal or local law, including, but
not limited to alleged violations of the federal Fair Labor
Standards Act, Title VII of the Civil Rights Act of 1964, the
Americans with Disabilities Act, the Age Discrimination in
Employment Act of 1967, as amended, and all claims for
attorneys’ fees, costs and expenses. However, this general
release is not intended to bar any claims that, by statute, may not
be waived, such as any challenge to the validity of
Employee’s release of claims under the Age Discrimination in
Employment Act of 1967, as amended, as set forth in this
Agreement.
2.2 Employee acknowledges that
Employee may discover facts or law different from, or in addition
to, the facts or law that Employee knows or believes to be true
with respect to the claims released in this Agreement and agrees,
nonetheless, that this Agreement and the release contained in it
shall be and remain effective in all respects notwithstanding such
different or additional facts or the discovery of them.
2.3 Employee declares and represents
that Employee intends this Agreement to be complete and not subject
to any claim of mistake, that the release herein expresses a full
and complete release of all claims known and unknown, suspected and
unsuspected and that, regardless of the adequacy or inadequacy of
the consideration, Employee intends the release herein to be final
and complete. Employee executes this release with the full
knowledge that this release covers all possible claims against the
Released Parties, to the fullest extent permitted by
law.
2.4 Employee expressly waives
Employee’s right to recovery of any type, including damages
or reinstatement, in any administrative or court action, whether
state or federal, and whether brought by Employee or on
Employee’s behalf, related in any way to the matters released
herein.
3. Representation Concerning
Filing of Legal Actions . Employee represents that, as of the
date of this Agreement, Employee has not filed any lawsuits,
charges, complaints, petitions, claims or other accusatory
pleadings against Northstar or any of the other Released Parties in
any court or with any governmental agency.
4. Mutual Nondisparagement .
Employee agrees that Employee will not make any voluntary
statements, written or oral, or cause or encourage others to make
any such statements that defame, disparage or in any way criticize
the personal and/or business reputations, practices or
conduct of Northstar or any of the other
Released Parties. Accordingly, Northstar agrees that its officers
and directors will not make any voluntary statements, written or
oral, or cause or encourage others to make any such statements that
defame, disparage or in any way criticize the personal and/or
business reputations, practices or conduct of Employee.
5. Confidentiality and Return of
Northstar Property .
5.1 Confidential Separation
Information . Employee agrees that the terms and conditions of
this Agreement, as well as the discussions that led to the terms
and conditions of this Agreement (collectively referred to as the
“ Confidential Separation Information ”) are
intended to remain confidential between Employee and Northstar.
Employee further agrees that Employee will not disclose the
Confidential Separation Info
