|
EXHIBIT
10.1
SEPARATION AND
RETIREMENT AGREEMENT
THIS RETIREMENT AGREEMENT
(this “ Agreement ”) is made as of May 31,
2007 by and between BIOMET, INC., an Indiana corporation (“
Company ”), and Garry L. England (“
Executive ”).
WHEREAS, Executive has
elected to retire from the Company and to resign all his positions
with the Company effective as of May 31, 2007;
WHEREAS, the Company is
currently negotiating a sale that would result in a Change in
Control Event should the sale be consummated;
WHEREAS, the parties have
agreed to resolve certain matters related to Executive’s
retirement;
NOW, THEREFORE, in
consideration of the foregoing premises and the respective
agreements hereinafter set forth and the mutual benefits to be
derived herefrom, Company and Executive hereby agree as
follows:
1. Retirement and
Resignation . Effective as of May 31, 2007 (the “
Separation Date ”), Executive hereby retires from the
Company and, as a consequence, voluntarily resigns his employment
and all positions with the Company and all of its affiliates,
including without limitation Executive’s position as Senior
Vice President, Chief Operating Officer, Domestic Operations,
Biomet, Inc.
2. Severance . The
parties acknowledge and agree that Executive’s termination of
employment constitutes a “Qualified Termination” under
the Biomet, Inc. Executive Severance Plan (the “ Severance
Plan ”). Commencing on the Effective Date (as defined
below), Executive shall be entitled to receive the applicable
payments and benefits specified in the Severance Plan until the
occurrence of a Change in Control Event, at which point Executive
shall no longer have any rights to benefits or payments thereunder;
provided that in lieu of the payment specified in
Section 5.01(d) of the Severance Plan, Executive shall be
entitled to receive for the fiscal year ending May 31, 2007
the annual bonus that would have been paid to him but for his
termination of employment; provided further that in lieu of
the provisions regarding options provided in 5.01(e) of the
Severance Plan, the vesting of and exercisability of
Executive’s options shall be covered exclusively by
Section 3 of this Agreement. Executive and the Company hereby
agree that (i) the Change in Control Agreement dated as of
September 20, 2006 by and between Executive and the Company
(the “ CIC Agreement ”) will continue in effect
for the six-month period following the Separation Date (the “
Tail Period ”); (ii) Executive’s
termination of employment will be considered to be an Anticipatory
Termination (as defined in Section 3.04(a) of the CIC
Agreement) if a Change in Control (as defined in the CIC Agreement)
occurs during the Tail Period (a “ Change in Control
Event ”); and (iii) Executive shall be entitled to
the payments and benefits (as modified by this Agreement)
applicable under the CIC Agreement in the event of an Anticipatory
Termination if a Change in Control Event occurs
upon the terms and conditions specified
in the CIC Agreement (including, without limitation, execution,
delivery and non-revocation of the release contemplated by the CIC
Agreement). In the event of a Change in Control Event, the payments
and benefits to which Executive is entitled under the CIC Agreement
shall be modified as follows:
(a) Executive shall not be
entitled to any payment or benefits pursuant to
Section 3.01(a)(i), Section 3.01(c),
Section 3.01(d), or Section 3.04(b)(E) of the CIC
Agreement.
(b) The amount Executive is
eligible to receive pursuant to Section 3.01(a)(ii) of the CIC
Agreement shall be reduced by the payments Executive previously
received pursuant to Section 5.01(a) and (c) of the
Severance Plan.
(c) Executive’s Date of
Termination (within the meaning of the CIC Agreement) shall be
deemed to be the Separation Date.
(d) Executive shall be
entitled to reimbursement for annual dues to Stonehenge Country
Club for the year that includes in the Separation Date and the
subsequent year in an amount not to exceed $5,000 per
year.
3. Treatment of
Options . Executive acknowledges that the Company is conducting
an investigation (the “ Investigation ”) to
determine the extent to which compensatory options previously
granted by the Company were granted with an exercise price lower
than the fair market value of the Company’s common stock on
the applicable date of grant. The Company and Executive hereby
agree to the following with respect to options granted to him by
the Company.
(a) Previously Exercised
Options . Executive shall repay to the Company in accordance
with this Section 3(a) the aggregate amount (the “
Discount ”) by which the exercise price of any or all
compensatory options granted to Executive by the Company that
Executive exercised prior to the date hereof was less than the fair
market value of the Company’s common stock on the applicable
date of grant of each such option. The Company shall determine the
amount of the Discount in good faith and, absent manifest error,
the Company’s determination shall be final, binding and
conclusive. Executive shall pay the amount of the Discount to the
Company promptly after, but in any event within thirty days after,
receipt of a written notice from the Company setting out in
reasonable detail the calculation of the Discount. Without in any
way limiting Executive’s obligation to repay the Discount
directly, Executive hereby authorizes the Company to withhold the
Discount from any and all amounts otherwise payable to Executive
hereunder or otherwise in the event Executive fails within thirty
days of receipt of the written notice specified above to pay the
Discount.
(b) Vested Options .
Executive agrees that, with respect to all unexercised options
previously granted to Executive that are vested and exercisable on
the date hereof (the “ Vested Options ”), the
Company may, without any further need for Executive’s
consent, increase the exercise price of such options to an amount
the Company determines in good faith is equal to the fair market
value of the Company’s common stock on the date such options
were originally granted. Absent manifest error, the Company’s
determination of the appropriate exercise price shall be final,
binding and conclusive. Executive agrees to execute
- 2 -
any document related to such adjustment
reasonably requested by the Company. In the event Executive
exercises any options described in this Section 3(b) prior to
any adjustment contemplated hereby, such options shall be treated
in accordance with Section 3(a). Vested Options shall
otherwise be exercisable after the Separation Date in accordance
with their terms, it being agreed that the Vested Options shall
remain exercisable until the earlier of (i) the date such
Accelerated Options would otherwise expire (in the absence of
Executive’s retirement), (ii) the fifth anniversary of
the Separation Date, or (iii) the date such options are cashed
out in connection with a Change in Control Event.
(c) Unvested Options .
Effective as of the Effective Date, the Company agrees to
accelerate the vesting and exercisability of the options described
on Exhibit A (the “ Accelerated Options ”),
which Accelerated Options shall then remain exercisable after the
Separation Date in accordance with their terms, it being agreed
that the Accelerated Options shall remain exercisable until the
earlier of (i) the date such Accelerated Options would
otherwise expire (in the absence of Executive’s retirement),
(ii) the fifth anniversary of the Separation Date, or
(iii) the date such options are cashed out in connection with
a Change in Control Event. Executive acknowledges and agrees that
he will not be entitled to, and hereby waives and entitlement he
might otherwise have to, accelerated vesting of any other options
other than the Accelerated Options as a consequence of his
retirement from the Company.
(d) If the Company agrees to
accept liability for or otherwise reimburse all other present or
former executive officers for adverse tax consequences resulting
from the mispricing of stock options, the Company agrees to provide
the same benefit to Executive.
4. Release of Claims
.
(a) General Release .
In consideration of the Company’s obligations hereunder and
acceptance of Executive’s retirement and resignation,
Executive, on behalf of himself and Executive’s heirs,
successors, and assigns, hereby knowingly and voluntarily releases
and forever discharges the Company and its subsidiaries and
affiliates, together with all of their respective current and
former officers, directors, consultants, agents, representatives
and employees, and each of their predecessors, successors and
assigns (collectively, the “ Releases ”), from
any and all debts, demands, actions, causes of actions, accounts,
covenants, contracts, agreements, claims, damages, omissions,
promises, and any and all claims and liabilities whatsoever, of
every name and nature, known or unknown, suspected or unsuspected,
both in law and equity (“ Claims ”), which
Executive ever had, now has, or may hereafter claim to have against
the Releases by reason of any matter, cause or thing whatsoever
arising from the beginning of time to the time Executive executes
this Agreement (the “ General Release ”). This
General Release of Claims shall apply to any Claim of any type,
including, without limitation, any and all Claims of any type that
Executive may have arising under the common law, under
Title VII of the Civil Rights Act of 1964, the
Civil Rights Act of 1991, the Age Discrimination in
Employment Act (“ADEA”), the Older Workers Benefit
Protection Act, the Americans With Disabilities Act, the Family and
Medical Leave Act, the Employee Retirement Income Security Act
(“ERISA”), the Sarbanes–Oxley Act of 2002 or the
California Fair Employment and Housing Act, the California Family
Rights Act, or the California Labor Code section 1400
et seq. , each as amended, and any other
Federal, state or local statutes, regulations, ordinances
or
- 3 -
common law, or under any policy,
agreement, contract, understanding or promise, written or oral,
formal or informal, between any of the Releases and Executive, and
shall further apply, without limitation, to any and all Claims in
connection with, related to or arising out of Executive’s
employment, or the termination of Executive’s employment,
with the Company; provided , however , that this
General Release shall not apply to or impair (i) claims for
vested benefits pursuant to any other Company employee benefit
plan, as defined in ERISA, in which Executive were a participant
before the Separation Date; (ii) any rights to indemnification
Executive may have under the charter, by–laws of the Company
or applicable law; or (iii) any claims that may arise from any
violation or breach of this Agreement (collectively, “
Excluded Claims ”). For the purpose of implementing a
full and complete release, Executive understands and agrees that
this Agreement is intended to include all claims, if any, which
Executive may have and which Executive does not now know or suspect
exist in Executive’s favo
|
