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SEPARATION AGREEMENT

Termination Severance Agreement

SEPARATION AGREEMENT | Document Parties: REPLIDYNE INC You are currently viewing:
This Termination Severance Agreement involves

REPLIDYNE INC

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Title: SEPARATION AGREEMENT
Governing Law: Colorado     Date: 8/5/2008
Industry: Biotechnology and Drugs     Sector: Healthcare

SEPARATION AGREEMENT, Parties: replidyne inc
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[ * * * ]   CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

EXHIBIT 10.22

SEPARATION AGREEMENT

     This Separation Agreement (this “Agreement”) is dated as of April 15, 2008 (the “ Effective Date ”), and is entered into by and between Replidyne, Inc. (the “ Company ”), and Peter Letendre (“ Executive ” and, together with the Company, the “ Parties ”).

RECITALS

     WHEREAS, Executive has been employed by the Company as Chief Commercial Officer of the Company pursuant to an Employment Agreement by and between the Company and Executive dated as of April 4, 2006, as amended, June 15, 2007, (the “ Employment Agreement ”);

     WHEREAS, the parties have determined that Executive shall terminate his employment as Chief Commercial Officer effective April 15, 2008 (the “ Separation Date ”), and, in connection with such separation, the Parties have agreed to settle any and all related agreements between the Parties and their affiliates in the manner set forth herein; and

     WHEREAS, except as expressly set forth herein, the Parties intend that this Agreement shall supersede and replace all other understandings and agreements, whether oral or written regarding Executive’s employment with the Company, including but not limited, to the Employment Agreement,

     NOW THEREFORE, in consideration of the promises and mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are expressly acknowledged, the Parties agree and promise as follows:

Section 1. Termination . Effective on the Separation Date, Executive shall terminate his employment as the Chief Commercial Officer of the Company.

Section 2. Termination Benefits .  Pursuant to Section 10(d) of the Employment Agreement, upon execution of this Agreement and of the release attached hereto as Exhibit B (“ Release ”), Executive shall be entitled to receive the following Severance Benefits:

     (a)  Severance Payment. The Company shall pay to Executive the equivalent of twelve (12) months of his Base Salary as in effect immediately prior to the Separation Date, payable on the same basis and at the same time as previously paid and subject to all applicable tax withholdings and other deductions, commencing on the first regularly scheduled pay date following the Effective Date of the Release;

     (b)  Health Insurance. The Company shall pay the premiums of Executive’s group health insurance COBRA continuation coverage, including coverage for Executive’s eligible dependents, for a maximum period of twelve (12) months following the Separation Date; provided, however, that (i) the Company shall pay premiums for Executive’s eligible dependents

 


 

only for coverage for which those eligible dependents were enrolled immediately prior to the Separation Date; and (ii) the Company’s obligation to pay such premiums shall cease immediately upon Executive’s eligibility for comparable group health insurance provided by a new employer of Executive.

     (c)  Outplacement Services . Although the Company is under no obligation to do so, in further consideration for the promises and agreements contained herein, the Company agrees to pay the cost for Executive to participate in up to six (6) months of outplacement services with Right Management Inc. up to a maximum amount of $7,500 if initiated no later than three (3) months following the Termination Date of the Consulting Agreement.

     (d)  Accrued Obligations.   On the Separation Date, the Company shall pay Executive all earned but unpaid Base Salary through the Separation Date and reimburse Executive for any reasonable unreimbursed expenses incurred in accordance with Company policy.  Additionally, Executive shall be entitled to a payment for all accrued but unused vacation that Executive has accrued through the Separation Date.

Section 6. Consulting Agreement . The Parties agree that immediately following the Separation Date, the Company will require the use of Executive’s marketing and commercialization expertise to assist it in the evaluation of potential partnership opportunities. Accordingly, Executive agrees to enter into a Consulting Agreement with the Company attached hereto as Exhibit C.

Section 7. Other Compensation and Benefits . Executive acknowledges that, except as expressly provided in this Agreement, including the Consulting Agreement, he has not earned and will not receive any additional pay or salary, incentive compensation, severance, equity interests or options, or benefits after the Separation Date, with the exception of any vested right he may have under the express terms of a written ERISA-qualified benefit plan (e.g., 401(k) account). In particular, but without limitation, Executive agrees that he is not owed any bonus, incentive compensation, or commissions.

Section 8. Return Of Company Property . By the close of business on the Separation Date, with the exception of the “ Retained Property ” (described herein), Executive agrees to return to the Company all Company documents (and all copies thereof, in whole or in part) and other Company property which Executive has in his possession or control, including, but not limited to, Company files, notes, drawings, records, plans, forecasts, reports, studies, analyses, proposals, agreements, engineering information, test data and materials, financial information, research and development information, sales and marketing information, customer information and databases, contact information, operational and personnel information, specifications, code, software, databases, computer-recorded information, tangible property and equipment (including, but not limited to, computers, facsimile machines, mobile telephones, servers), credit cards, entry cards, identification badges and keys; and any materials of any kind which contain or embody any proprietary or confidential information of the Company (and all reproductions thereof in whole or in part). Executive agrees that he will make a diligent search to locate any such documents, property and information within the timeframe referenced above. If Executive has used any personally owned computer, server, or e-mail system to receive, store, review, prepare or transmit any Company confidential or proprietary data, materials or information, Executive

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agrees to provide the Company with a computer-useable copy of such information and then permanently delete and expunge such Company confidential or proprietary information from those systems within five (5) business days after the Separation Date; and Executive agrees to provide the Company access to Executive’s system as requested to verify that the necessary copying and/or deletion is done. Except for the Retained Property described herein, Executive agrees that, after the Separation Date, Executive will neither use nor possess Company property. For purposes of this Agreement, Retained Property shall mean all documents, files and other information technology devices provided to Executive by the Company in order to perform the Consulting Duties as set forth in Exhibit C of this Agreement. At the conclusion of the Consulting Agreement, Executive shall have the opportunity to purchase such devices at their depreciated fair market value.

Section 9. Confidential Information and Restrictive Covenants .  Executive acknowledges that the confidentiality obligations and restrictive covenants set forth in the Company’s Proprietary Information and Inventions Agreement, attached to the Employment Agreement and hereto as Exhibit A shall remain in full force and effect following the Separation Date and Executive further agrees to comply with the terms of such obligations and restrictive covenants.

Section 8. Release .  Notwithstanding anything herein to the contrary, Executive shall not be entitled to any benefits pursuant to this Agreement prior to the time in which he executes a full general release of claims against the Company and its affiliates substantially in the form attached to the Employment Agreement and hereto as Exhibit B.

Section 10. Non-Disparagement .  Executive agrees that, except as required by applicable law, or compelled by process of law, at any time following the date hereof, neither Executive, nor anyone acting on his behalf, shall hereafter make any derogatory, disparaging or critical statement about the Company, the Company’s subsidiaries or affiliates, or any of the Company’s current officers, directors, employees, or shareholders or any persons who were officers, directors, employees, or shareholders of the Company.  The Company agrees that, except as required by applicable law, or compelled by process of law, neither it, nor anyone acting on its behalf, shall hereafter make any derogatory, disparaging or critical statement about the Executive.

Section 11. Cooperation by Executive . Following the Separation Date, Executive will reasonably cooperate in all reasonable respects with the Company and its affiliates in connection with any and all existing or future litigation, actions or proceedings (whether civil, criminal, administrative, regulatory, or otherwise) brought by or against the Company or any of its affiliates, to the extent the Company reasonably deems Executive’s cooperation necessary.  Executive shall be reimbursed for all reasonable out-of-pocket expenses incurred by his as a result of such cooperation.

Section 12. Indemnification .  The Company acknowledges that (a) its by-laws (or those of one or more of its affiliates) contain provisions indemnifying directors and officers to the fullest extent permitted by applicable law and (b) Executive is covered by such provisions (as such provisions are in effect on the Separation Date) to the extent permitted by applicable law even after the Separation Date with respect to such matters occurring during the course of Executive’s

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employment before the Separation Date, subject to the terms of such by-law provisions (as such provisions are in effect on the Separation Date).

Section 13. Confidentiality of Agreement .  Executive hereby agrees to keep the terms of this Agreement confidential; provided, that the obligations of Executive under this Section 13 shall not apply to disclosures required by applicable law, regulation or order of a court or governmental agency, to Executive’s counsel, or to Executive’s immediate family.

Section 14. Opportunity for Advice .  By signing this Agreement, Executive acknowledges that with the advice of the Company, he has had a reasonable opportunity to consider advice from his legal counsel.  Fully understanding these terms, Executive is entering into this Agreement knowingly and voluntarily.

Section 15. Entire Agreement .  This Agreement, including its Exhibits, represents the entire agreement of the parties with respect to Executive’s engagement and termination thereof, and supersedes all prior negotiations, discussions, correspondence, communications, understandings and agreements between the parties relating to the subject matter of this Agreement, including but not limited to the Employment Agreement.

Section 16. Governing Law .  THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF COLORADO APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.

Section 17. Severability .  In the event that any provision or portion of this Agreement shall be determined to be invalid or unenforceable for any reason, in whole or in part, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by law.

Section 18. Counterparts .  This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall be considered one and the same agreement.

[Remainder of page intentionally left blank.]

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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and year first above written.

 

 

 

 

 

 

 

/s/ Peter Letendre

 

 

 

 

 

Peter Letendre

 

 

 

 

 

 

 

REPLIDYNE, INC.

 

 

 

 

 

 

 

By:

 

/s/ Kenneth J. Collins

 

 

 

 

 

 

 

 

 

Kenneth J. Collins

 

 

Title:

 

Chief Executive Officer

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Exhibit A

MANAGER, EXECUTIVE PERSONNEL OR ASSISTANTS’
PROPRIETARY INFORMATION, INVENTIONS,
NON-COMPETITION, AND NON-SOLICITATION AGREEMENT

     This Manager, Executive Personnel or Assistants’ Proprietary Information, Inventions, Non-competition, and Non-solicitation Agreement (“ Agreement ”) is made in consideration for my employment or continued employment by Replidyne, Inc. or its subsidiaries or affiliates (the “ Company ”), and the compensation now and hereafter paid to me. I hereby agree as follows:

1. Nondisclosure.

1.1 Recognition of Company’s Rights; Nondisclosure. At all times during my employment and thereafter, I will hold in strictest confidence and will not disclose, use, lecture upon or publish any of the Company’s Proprietary Information (defined below), except as such disclosure, use or publication may be required in connection with my work for the Company, or unless an officer of the Company expressly authorizes such in writing. I will obtain Company’s written approval before publishing or submitting for publication any material (written, verbal, or otherwise) that relates to my work at Company and/or incorporates any Proprietary Information. I hereby assign to the Company any rights I may have or acquire in such Proprietary Information and recognize that all Proprietary Information shall be the sole property of the Company and its assigns.

1.2 Proprietary Information. The term “ Proprietary Information ” shall mean any and all confidential and/or proprietary knowledge, data or information of the Company. By way of illustration but not limitation, Proprietary Information includes (a) trade secrets, inventions, mask works, ideas, processes, formulas, source and object codes, data, programs, other works of authorship, know-how, improvements, discoveries, developments, designs and techniques (hereinafter collectively referred to as “ Inventions ”); and (b) information regarding plans for research, development, new products, marketing and selling, business plans, budgets and unpublished financial statements, licenses, prices and costs, suppliers and customers; and (c) information regarding the skills and compensation of other employees of the Company. Notwithstanding the foregoing, it is understood that, at all such times, I am free to use information which is generally known in the trade or industry, which is not gained as result of a breach of this Agreement, and my own, skill, knowledge, know-how and experience to whatever extent and in whichever way I wish.

1.3 Third Party Information. I understand, in addition, that the Company has received and in the future will receive from third parties confidential or proprietary information (“ Third Party Information ”) subject to a duty on the Company’s part to maintain the confidentiality of such information and to use it only for certain limited purposes. During the term of my employment and thereafter, I will hold Third Party Information in the strictest confidence and will not disclose to anyone (other than Company personnel who need to know such information in connection with their work for the Company) or use, except in connection with my work for the Company, Third Party Information unless expressly authorized by an officer of the Company in writing.

1.4 No Improper Use of Information of Prior Employers and Others. During my employment by the Company I will not improperly use or disclose any confidential information or trade secrets, if any, of any former employer or any other person to whom I have an obligation of confidentiality, and I will not bring onto the premises of the Company any unpublished documents or any property belonging to any former employer or any other person to whom I have an obligation of confidentiality unless consented to in writing by that former employer or person. I will use in the performance of my duties only information which is generally known and used by persons with training and experience comparable to my own, which is common knowledge in the industry or otherwise legally in the public domain, or which is otherwise provided or developed by the Company.

2. Assignment of Inventions.

2.1 Proprietary Rights. The term “ Proprietary Rights” shall mean all trade secret, patent, copyright, mask work and other intellectual property rights throughout the world.

2.2 Prior Inventions. Inventions, if any, patented or unpatented, which I made prior to the

 


 

commencement of my employment with the Company are excluded from the scope of this Agreement. To preclude any possible uncertainty, I have set forth on Exhibit A (Previous Inventions) attached hereto a complete list of all Inventions that I have, alone or jointly with others, conceived, developed or reduced to practice or caused to be conceived, developed or reduced to practice prior to the commencement of my employment with the Company, that I consider to be my property or the property of third parties and that I wish to have excluded from the scope of this Agreement (collectively referred to as “ Prior Inventions ”). If disclosure of any such Prior Invention would cause me to violate any prior confidentiality agreement, I understand that I am not to list such Prior Inventions in Exhibit A but am only to disclose a cursory name for each such invention, a listing of the party(ies) to whom it belongs and the fact that full disclosure as to such inventions has not been made for that reason. A space is provided on Exhibit A for such purpose. If no such disclosure is attached, I represent that there are no Prior Inventions. If, in the course of my employment with the Company, I incorporate a Prior Invention into a Company product, process or machine, the Company is hereby granted and shall have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license (with rights to sublicense through multiple tiers of sublicensees) to make, have made, modify, use and sell such Prior Invention. Notwithstanding the foregoing, I agree that I will not incorporate, or permit to be incorporated, Prior Inventions in any Company Inventions without the Company’s prior written consent.

2.3 Assignment of Inventions. Subject to Sections 2.4, and 2.6, I hereby assign and agree to assign in the future (when any such Inventions or Proprietary Rights are first reduced to practice or first fixed in a tangible medium, as applicable) to the Company all my right, title and interest in and to any and all Inventions (and all Proprietary Rights with respect thereto) whether or not patentable or registrable under copyright or similar statutes, made or conceived or reduced to practice or learned by me, either alone or jointly with others, during the period of my employment with the Company. Inventions assigned to the Company, or to a third party as directed by the Company pursuant to this Section 2, are hereinafter referred to as “ Company Inventions .”

2.4 Nonassignable Inventions. I recognize that this Agreement will not be deemed to require assignment of any invention which was developed entirely on my own time without using the Company’s equipment, supplies, facilities, or trade secrets and neither related to the Company’s actual or anticipated business, research or development, nor resulted from work performed by me for the Company (“Nonassignable Inventions”).

2.5 Obligation to Keep Company Informed. During the period of my employment and for six months after the last day of my employment with the Company, I will promptly disclose to the Company fully and in writing all Inventions authored, conceived or reduced to practice by me, either alone or jointly with others. In addition, I will promptly disclose to the Company all patent applications filed by me or on my behalf within a year after termination of employment. At the time of each such disclosure, I will advise the Company in writing of any Inventions that I believe are Nonassignable Inventions and I will at that time provide to the Company in writing all evidence necessary to substantiate that belief. The Company will keep in confidence and will not use for any purpose or disclose to third parties without my consent any confidential information disclosed in writing to the Company pursuant to this Agreement relating to Inventions that have been identified as Nonassignable Inventions.

2.6 Government or Third Party. I also agree to assign all my right, title and interest in and to any particular Invention to a third party, including without limitation the United States, as directed by the Company.

2.7 Works for Hire. I acknowledge that all original works of authorship which are made by me (solely or jointly with others) within the scope of my employment and which are protectable by copyright are “works made for hire,” pursuant to United States Copyright Act (17 U.S.C., Section 101).

2.8 Enforcement of Proprietary Rights. I will assis


 
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