[ * * * ] 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.
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 ”).
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.
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/s/ Peter
Letendre
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Peter
Letendre
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REPLIDYNE,
INC.
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By:
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/s/ Kenneth J.
Collins
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Kenneth J.
Collins
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Title:
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Chief Executive
Officer
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5
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:
1.1
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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