Exhibit 10.1
CONFIDENTIAL
CONFIDENTIAL SEPARATION AGREEMENT BETWEEN
SUTURA, INC. AND DAVID TECKMAN
This Separation Agreement is entered
into this 15 day of May, 2008, between David R. Teckman
(“Executive”) and Sutura, Inc. (the
“Company”).
I.
RECITALS
A. Executive was employed by the
Company as its President and Chief Executive Officer until his
employment ended on or about February 26, 2008 (the
“Separation Date”).
B. In connection with his
employment by the Company, Executive was granted 750,000 shares of
the Company’s common stock pursuant to the Written Consent of
the Board of Directors of Sutura, Inc., dated October 3, 2006
(the “2006 Written Consent”).
C. Executive and the Company
desire to resolve all of Executive’s potential claims on the
terms set out in this Separation Agreement.
II.
AGREEMENT
Therefore, in consideration of the
mutual promises and provisions contained in this Separation
Agreement and the Release of Sutura referred to below, the parties,
intending to be legally bound, agree as follows:
1.
Separation. By signing this Agreement, Executive
confirms the termination of his employment as an employee and his
resignation as an officer of the Company, effective at the close of
business on the Separation Date. Executive will sign such other
documents as deemed reasonably necessary to accurately reflect such
termination in the Company’s corporate records.
2. Release by
Executive. At the same time that he executes this
Separation Agreement, Executive shall also execute the release that
is attached to this Separation Agreement as Exhibit A (the
“Release of Sutura”).
3. Release by
Company. Provided Executive signs and does not rescind this
Separation Agreement, the Release of Sutura, the Whitebox
Separation Agreement, and the Release of Whitebox within the
applicable rescission periods, the Company agrees to release
Executive from all claims it may have against Executive as of the
date of this Agreement, provided, however, the Company does not
agree to release any claims that the law does not allow to be
waived, or any claims that may arise after the date of this
Agreement.
4.
Consideration. If Executive executes the Release of
Whitebox and the Release of Sutura and delivers them to the Company
within the times specified in the Release of Whitebox and the
Release of Sutura and the applicable rescission periods expire
without a rescission by Executive, the Executive will receive from
the Company the following severance benefits:
a. The
Company will pay Executive a lump sum payment of $520,699.24, less
applicable withholdings, within 15 days after the expiration
of the applicable rescission periods. Such lump sum payment
represents an amount equal to a bonus for the 2007 calendar year
($255,000.00), twelve months severance in the amount of
Executive’s annual base salary ($250,000.00), and additional
severance in an amount equal to the Company’s share of twelve
months worth of medical benefit premiums for Executive
($15,699.24).
b. The
Company will vest all of Executive’s options to purchase
shares of common stock of the Company, effective the date of the
expiration of the rescission periods, and Executive will have 30
days from the expiration of the rescission periods to exercise such
options before such options will expire and cease to be
outstanding. Executive acknowledges and agrees that the options
listed in this paragraph below are Executive’s only options
to purchase shares of the common stock of the Company.
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Plan |
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Date of Grant |
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Exercise Price |
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Number of Shares |
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| 2006 Written Consent |
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10/03/06 |
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$.06 |
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750,000 |
c. At
the same time as the above payments to Executive, the Company will
pay Executive’s legal counsel, Lindquist & Vennum,
$40,000.00 for legal fees incurred by Executive in the matter of
David R. Teckman v. Sutura, Inc. and Anthony A. Nobles.
5. Right to
Consult with an Attorney. Executive understands and
acknowledges that he is hereby being advised by the Company to
consult with an attorney prior to signing this Separation Agreement
and the Release of Sutura.
6. Consideration
and Rescission. The periods described in the Release of
Sutura during which Executive may consider whether to sign or
rescind the Release of Sutura and the procedures stated in the
Release of Sutura for accepting or rescinding the Release of Sutura
also apply to this Separation Agreement. This Separation Agreement,
the Release of Sutura, the Whitebox Separation Agreement, and the
Release of Whitebox must be accepted or rescinded together.
Rescission of one of these documents will be deemed a rescission of
all of these documents.
7.
Non-Disparagement . Executive will not at any
time disparage, defame or besmirch the reputation, character,
image, products or services of the Company, any of its affiliates,
or the reputation or character of any of their current or former
directors, officers, employees or agents. The Company will cause
the current members of the Board of Directors of the Company and
the current officers of the Company to not at any time disparage,
defame or besmirch the reputation or character of Executive.
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8.
Confidentiality .
a.
General Standard . The provisions of this Separation
Agreement and the Release of Sutura (collectively
“Confidential Separation Information”) will be forever
treated as confidential. Accordingly, Executive and the Company
will not disclose Confidential Separation Information to anyone at
any time, except as provided in paragraph 8.b below.
b.
Exceptions .
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(i) |
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It will not be a violation of this Separation Agreement for
Executive to disclose Confidential Separation Information to his
immediate family, his attorneys or tax advisors, or as required by
law. |
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(ii) |
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It will not be a violation of this Separation Agreement for the
Company representatives to disclose Confidential Separation
Information to its officers, directors, attorneys, auditors,
employees and agents who have a need to know such information in
the course of performing their duties or responsibilities for the
Company. |
9.
Non-Admission. Nothing in this Separation Agreement
or the Release of Sutura is intended to be, nor will be deemed to
be, an admission by the Company that it has violated any law or
that it has engaged in any wrongdoing.
10. Entire
Agreement. This Separation Agreement and the Release of
Sutura supersede all prior oral and written agreements,
representations, and promises between the parties relating to
Executive’s employment with the Company. This Separation
Agreement and the Release constitute the entire agreement between
the parties with respect to Executive’s employment with the
Company and the termination of that employment. Executive
acknowledges that there were no inducements or representations
leading to the execution of this Separation Agreement or the
Release of Sutura, except as stated in this Separation
Agreement.
11. Voluntary and
Knowing Action. The parties acknowledge that they
understand the terms of this Separation Agreement and that they are
voluntarily entering into this Separat
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