SEPARATION PAY AGREEMENT
THIS SEPARATION PAY AGREEMENT (“Agreement”), dated as of March 24, 2022 (the “Effective Date”) is made by and between VAPOTHERM, INC., a Delaware corporation (the “Company”), on behalf of itself and one or more of its Affiliates, and JOHN LANDRY (the “Executive”).
WHEREAS, the Company or one of its Affiliates employs the Executive as Senior Vice President & Chief Financial Officer and recognizes the Executive as performing key functions for the success of the Company and its Affiliates; and
WHEREAS, the Company has determined that it is in the best interests of the Company and its Affiliates to institute formalized separation arrangements for certain executives of the Company, including the Executive, in the event of a separation of employment; and
WHEREAS, the Executive desires to enter into this Agreement.
NOW, THEREFORE, based on the foregoing, and for and in consideration of the mutual covenants contained in this Agreement, the parties hereby agree as follows:
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IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the Effective Date.
AGREED AND ACCEPTED
VAPOTHERM, INC. | EXECUTIVE
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By: /s/ Joe Army
Title: CEO
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/s/ John R. Landry
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EXHIBIT A
GENERAL RELEASE
[●] (the “Executive”), on behalf of the Executive and the Executive’s heirs, executors, administrators, successors and assigns, whether named or referred to below or not, releases, acquits and forever discharges Vapotherm, Inc. (the “Company”), its parent(s), successors and assigns, their agents, servants, and employees, its subsidiaries, divisions, subdivisions, and affiliates (“Released Party”), of and from any and all past, present, and future claims, counterclaims, demands, actions, causes of action, liabilities, damages, costs, loss of services, expenses, compensation, third-party actions, of every nature and description, whether known or unknown, suspected or unsuspected, foreseen, or unforeseen, real or imaginary, actual or potential, and whether arising at law or in equity, under the common law, state, federal or foreign law, or any other law, or otherwise, arising out of or relating to the Executive’s employment with the Company or the termination thereof (collectively “Claims”). The Executive intends to affect a full and final general release of all such Claims. It is expressly understood and agreed that this Release is intended to cover, and does cover, not only all now known injuries, losses, and damages, but also those injuries, losses, and damages not now known or anticipated, but which may later be discovered after the Effective Date (as hereinafter defined as the date when the Executive signs this Release), including all the effects and consequences thereof.
More specifically, by signing this Release, the Executive agrees to release any actual and potential Claims that the Executive has or may potentially have, either as an individual or standing in the shoes of the government, under any foreign, federal, state or local law, administrative regulation or legal principle (except as provided below in this Release) against the Company or any and all other Released Parties. The following listing of laws and types of Claims is not meant to, and shall not be interpreted to, exclude any particular law or type of Claim, law, regulation or legal principle not listed. The Executive understands that the Executive is releasing all the Executive’s Claims against the Company and all Released Parties including, but not limited to, any Claims for expense reimbursement or expenses, Claims for invasion of privacy; breach of written or oral, express or implied, contract; fraud or misrepresentation; Claims for assault, battery, defamation, intentional or negligent infliction of emotional distress, breach of the covenant of good faith and fair dealing, promissory estoppel, negligence, negligent hiring, retention or supervision, retaliation, constructive discharge, violation of whistleblower protection laws, unjust enrichment, violation of public policy, and any Claims under the Age Discrimination in Employment Act of 1967 (“ADEA”), 28 U.S.C. § 626, as amended, the Older Workers Benefit Protection Act of 1990 (“OWBPA”), 29 U.S.C. § 626(f), Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq., the Americans with Disabilities Act (“ADA”), as amended by the ADA Amendments Act of 2008 (“ADAAA”), 29 U.S.C. § 12101, et seq., the Employee Retirement Income Security Act of 1974 (“ERISA”), as amended, 29 U.S.C. §§ 1001, et seq., the Equal Pay Act (“EPA”), 29 U.S.C. § 206(d), the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601, et seq., the Genetic Information Nondiscrimination Act of 2008 (“GINA”), the False Claims Act, 31 U.S.C. § 3729, et seq., Delaware Discrimination in Employment Act, Delaware Persons With Disabilities Employment Protections Act, Minimum Wage Act of the State (Del. Code Ann. tit. 19, §§ 901-914), Delaware Whistleblowers' Protection Act, Delaware False Claims and Reporting Act, Delaware equal pay laws (Del. Code Ann. tit. 19, § 1107A), Delaware meal break
Ex. A-1
laws, Delaware leave laws, New Hampshire Law Against Discrimination, New Hampshire Whistleblowers' Protection Act, New Hampshire Worker Adjustment and Retraining Notification Act, New Hampshire equal pay laws (N.H. Rev. Stat. Ann. §§ 275:36 to 275:41-a), New Hampshire genetic testing laws (N.H. Rev. Stat. Ann. §§ 141-H:1 to 141-H:6), and New Hampshire leave laws, or any other federal, state, or local statute, law, rule, regulation, ordinance or order. This includes, but is not limited to, Claims for violation of any civil rights laws based on protected class status and all other Claims for unlawful employment practices, and all other common law or statutory Claims.
The Executive is not releasing, and “Claims” shall not include, any rights or Claims the Executive has (1) pursuant to the Separation Pay Agreement between the Company and the Executive, any equity award granted to the Executive by Vapotherm, Inc. or the Indemnification Agreement between the Company or its affiliates and the Executive; (2) to be indemnified and advanced expenses in accordance with applicable law, or the Company’s and its affiliates’ corporate documents or be covered under any applicable directors’ and officers’ liability insurance policies; (3) with respect to any rights which have accrued or become vested as of the date of this Release, including any rights to any outstanding equity awards; and (4) with respect to any Claims which arise after the date this Release is executed by the Executive.
The Executive represents and warrants that the Executive is aware of no facts, evidence, allegations, claims, liabilities, or demands relating to alleged or potential violations of law that may give rise to a claim or liability on the part of any Released Party under the Securities Exchange Act of 1934, the Sarbanes–Oxley Act of 2002, the Dodd-Frank Wall Street Reform and Consumer Protection Act, or any other federal, state, local or international law, statute or regulation providing for protection and/or recovery to whistleblowers. Nothing in this General Release interferes with the Executive’s right to file a complaint, charge or report with any law enforcement agency, with the Securities Exchange Commission (“SEC”) or other regulatory body, or to participate in any manner in an SEC or other governmental investigation or proceeding under any such law, statute or regulation, nor does it require notification to or prior approval by the Company of any such a complaint, charge or report. Executive understands and agrees, however, that Executive waives Executive’s right to recover any whistleblower award under Section 21F of the Securities Exchange Act of 1934 or other individual relief in any administrative or legal action whether brought by the SEC or other law enforcement agency, Executive, or any other party, unless and to the extent that such waiver is contrary to law. Executive agrees that Company reserves any and all defenses which it has or might have against any such claims brought by Executive or on Executive’s behalf.
The Executive declares that the Executive understands, covenants, and agrees that except to the extent explicitly permitted by this General Release, the Executive will not make any Claims or demands, or file any legal proceedings against any Released Party or join any Released Party as a party with respect to any Claims released by the Executive, nor shall the Executive proceed against any other person, firm, or corporation on the Claims released above except as is necessary to enforce the terms and conditions of this Release and the Separation Pay Agreement. Notwithstanding the foregoing, nothing in this Release or the Separation Pay Agreement should be construed as interfering with the Executive’s right or ability to file a charge, report, claim or complaint with, or to otherwise participate in any manner in an investigation or proceeding before, any civil rights, fair employment practices, securities regulation or other governmental regulatory
Ex. A-2
or law enforcement agency or entity, including without limitation, the Equal Employment Opportunity Commission (“EEOC”). The Executive further declares that the Executive is voluntarily forfeiting any right to recover or receive compensation in any form resulting from a legal action or demand against the Company by any other person or persons with respect to the Claims released by the Executive herein. The Executive agrees that the Released Parties reserve any and all defenses which they have against any such claims.
In accordance with the Older Workers Benefit Protection Act of 1990, as amended, Executive agrees as follows:
RIGHT TO REVOKE
The Executive understands that insofar as this Release relates to the Executive’s rights under the ADEA, it shall not become effective or enforceable until seven (7) days after the Executive signs it. The Executive also has the right to revoke this Release only insofar as it extends to potential Claims under the ADEA by written notice to the Company within seven (7) calendar days following the Executive’s signing of this Release. Any such revocation must be in writing, must explain that the revocation is applicable to the Executive’s ADEA Claims, and must be either hand-delivered to the Company or, if sent by mail, postmarked within the applicable time period (below), sent by certified mail, return receipt requested, as follows:
(a) post-marked within the applicable seven (7) day period;
(b) properly addressed to:
President and Chief Executive Officer
Vapotherm, Inc.
100 Domain Drive
Exeter, NH 03833; and
(c) sent by certified mail, return receipt requested.
The Executive declares that the Executive understands, covenants, and agrees that the Executive will not make any Claims or demands, or file any legal proceedings against the
Ex. A-3
Company or join the Company as a party with respect to any Claims released by the Executive, nor shall the Executive proceed against any other Released Party, person, firm, or corporation on the Claims released above except as is necessary to enforce the terms and conditions of this Release and the Separation Pay Agreement between the Executive and the Company. The Executive further declares that the Executive is voluntarily forfeiting any right to recover or receive compensation in any form resulting from a legal action or demand against the Company by any other person or persons with respect to the Claims released by the Executive herein.
The filing of any claim, demand or any and all other legal proceedings by the Executive against the Company with respect to Claims released by the Executive shall be deemed to be a material breach of the terms of this Release. Such breach shall immediately terminate Company’s duty to pay any further sums to the Executive.
It is further understood and agreed that the Company will pay and the Executive is accepting severance payments and benefits more fully described in the Separation Pay Agreement between the parties in full accord and satisfaction of any obligations, Claims, and/or disputes that the Executive may have with the Company with respect to the Executive’s released Claims.
The Executive declares, understands, covenants, and agrees that the terms of the Separation Pay Agreement, and the severance payments and benefits stated therein, are the sole consideration for this Release and that the Executive voluntarily accepts that consideration for the purpose of making a full and final compromise, adjustment, and release of all Claims.
The Executive understands and agrees that this is the full and complete understanding of the parties, that it is the integrated memorial of their agreement, and that there are no other written or oral understandings, agreements, covenants, promises or arrangements, directly or indirectly connected with this Release, that are not incorporated herein. The terms of this Release are contractual and are not mere recitals.
Notwithstanding the foregoing, nothing in this Release shall release any party from obligations resulting from the Separation Pay Agreement nor prohibit any party from seeking the enforcement of the Separation Pay Agreement.
The Executive understands that the consideration the Executive is receiving for settling and releasing the Executive’s Claims is contingent upon the Executive’s agreement to be bound by the terms of this Release. Accordingly, if the Executive attempts to revoke this Release as provided above, the Executive understands that the Executive is not entitled to the post-termination payments and benefits, other than the Accrued Obligations, offered in the Separation Pay Agreement. The Executive further understands that if the Executive attempts to revoke the Executive’s release of the Executive’s ADEA Claims, the Executive must immediately return to Company the post-termination payments and benefits, other than the Accrued Obligations, that the Executive may have received under the Executive’s Separation Pay Agreement; provided however, that if the Executive decides to challenge the knowing and voluntary nature of this Release under the ADEA and/or the OWBPA, the Executive is not required to return to Company any consideration that the Executive received under the Executive’s Separation Pay Agreement.
Ex. A-4
AGREED AND ACCEPTED
The Company has advised the Executive of the Executive’s right to review this Release with the Executive’s own attorney. The Executive has had the opportunity to carefully read this Release and understands all its terms. In agreeing to sign this Release, the Executive has not relied on any oral statements or explanations made by the Company or any other Released Party, including their employees or attorneys. The Executive understands and agrees to be bound by this Release. This Release shall be effective as of the date signed by the Executive (“Effective Date”).
EXECUTIVE:
Dated: , 20__
(Effective Date) Signature
Name:
Ex. A-5
EXHIBIT B
MODIFIED 280G CUTBACK
Notwithstanding anything to the contrary in this Agreement, in any other agreement between or among the Executive, the Company or any of its Affiliates or in any plan maintained by the Company or any Affiliate, if there is a 280G Change in Control (as defined in Section (g)(i) below), the following rules shall apply:
Ex. B-1
Ex. B-2
Ex. B-3