Exhibit 10.1
SEPARATION, RELEASE AND CONSULTANCY AGREEMENT
This Separation, Release and Consultancy Agreement (this "Agreement"),
dated May 8, 2006 (the "Effective Date"), is entered into by and between DANE
A. MILLER, Ph.D. ("Miller") and BIOMET, INC. (the "Company").
RECITAL
WHEREAS, Miller and the Company desire to reach a mutual understanding
and acceptance of the terms and conditions related to Miller's separation from
employment with the Company.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, it is hereby agreed as follows:
1. Miller shall cease to be a senior executive of the Company and any of
its affiliates as of March 27, 2006 ("Separation Date") and shall be paid
Miller's normal salary and receive normal benefits through such date. On the
eighth day after the Effective Date (assuming no revocation has taken place),
Miller shall be paid any accrued but unused personal and vacation days for
calendar year 2006.
2. (a) Miller agrees to be a consultant for the Company and its
affiliates for a period from the Separation Date until the Termination Date.
In consideration of Miller's acceptance of this Agreement, Miller, or, in the
event of Miller's incapacity or death, his estate, heirs, designee(s),
successors, or assigns, shall receive from the Company (assuming no revocation
has taken place) (i) $4,000,000 on October 1, 2006, (ii) $500,000 on November
30, 2006 and (iii) $500,000 on the last day of each quarter thereafter until
(and including) the last day of the first quarter of fiscal year 2010 (the
"Termination Date"). The Company shall also reimburse Miller (assuming no
revocation has taken place) for the out-of-pocket fees and expenses of the
services of a secretary and the provision of an office (not in the Company's
facilities), for the period beginning as of October 1, 2006 and ending on the
Termination Date, on a yearly basis in an amount not to exceed $100,000, paid
monthly, per fiscal year (pro rated for any partial years). The payments under
this Paragraph 2 shall cease immediately upon the intentional and material
breach by Miller of any provision of this Agreement; provided, however, Miller
shall be entitled to respond and defend any alleged intentional and material
breach of any provision of this Agreement after receiving notice, in writing,
from the Company of the alleged intentional and material breach. Miller and
the Company, upon the Company's receipt of written notice from Miller of
Miller's intention to defend the alleged intentional and material breach,
shall mediate the controversy based upon the asserted intentional and material
breach by Miller of this Agreement through a mediator located in any one of
the counties contiguous to Kosciusko County, Indiana. The costs of mediation
shall be borne equally by Miller and the Company.
(b) Miller's duties as a consultant for the Company, during the period from
the Separation Date until the Termination Date, shall be:
(i) tasks reasonably and customarily fulfilled by a consultant of the
type and nature of Miller, said tasks to be performed during regular
business hours of the Company during the Company's customary work
week, Monday through Friday, with the Company providing Miller
reasonable notice of the tasks which the Company will request Miller
to perform (reasonable notice by the Company to Miller shall be not
less than fifteen (15) days written notice by the Company to Miller
of the tasks which Miller shall perform for and on behalf of the
Company in his capacity as a consultant to the Company), which said
tasks shall be issued from the office of the interim Chief Executive
Officer or the subsequently named permanent Chief Executive Officer
of the Company;
(ii) the foregoing consultant duties of Miller shall not exceed twenty
(20) hours per week, an aggregate of not greater than forty (40)
hours per month, and an aggregate of not greater than four hundred
and eighty (480) hours per year;
(iii) to cooperate in providing information in connection with threatened,
pending or future investigations or litigation, including giving
depositions and appearing for live interviews and proceedings, and
the Company shall be responsible to pay for Miller, outside of the
consultancy compensation set out in Section 2.(a), all expenses for
travel, after submitting a written expense report (travel
arrangements the same as an outside director, first class), lodging,
meals, and related expenses incurred by Miller in providing services
to cooperate in providing information in connection with threatened,
pending, or future investigations or litigation (related to Miller's
duties with the Company up and through the Separation Date); and
(iv) should Miller be required or agrees to perform any such consulting
services after the Termination Date, Miller shall be compensated by
the Company at the rate of $500 per hour plus expenses as referenced
in Subsection 2.(b)(iii).
3. Beginning on the Separation Date, the Company shall provide Miller and
his spouse with coverage under the Company's health care plans in which Miller
is entitled to participate as an outside director of the Company for $570 per
month. Beginning on October 1, 2006 (assuming no revocation has taken place),
the Company shall provide Miller and his spouse with coverage under the
Company's health care plans in which Miller is entitled to participate as an
outside director of the Company or equivalent coverage until Miller and
Miller's spouse turn age 65. If Miller is elected in 2006 as a non-employee
director, Miller shall be entitled to all benefits and reimbursements
available to outside directors under the Company's then existing policies and
procedures.
4. In accordance with Company policy, Miller agrees that the Company is
authorized to open business mail addressed to Miller in the capacity which
Miller held through the Separation Date. All other mail and e-mail shall be
directed to Miller, at Miller's residence or office address or elsewhere, as
directed by Miller: (a) such mail to remain unopened if it is mail received
through the normal course of business or by overnight mail from an overnight
courier, and (b) all e-mail may be opened by the Company pursuant to Company
policies and procedures (all e-mail shall be forwarded by the Company to
Miller with Miller returning business related e-mail to the Company, to a
person designated by the Company to Miller, for e-mail
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associated with the business operations, in its normal course, of the
Company). Miller shall submit, within seven (7) days after the execution of
this Agreement, an address in writing to the Company for the forwarding of
Miller's mail and Miller's e-mail address, if different from Miller's current
e-mail address. In addition to the foregoing and in an effort to maintain a
continuous flow of information directed by e-mail to Miller, the Company
agrees to continue to keep Miller's business e-mail address active for three
(3) months following the Separation Date and to provide an auto-reply during
such time to external e-mails attaching Miller's forwarding information.
5. The Company agrees that Miller shall continue to be entitled to any
rights to indemnification under the Company's or its affiliates' directors and
officers liability insurance, Articles of Incorporation and Bylaws until the
Termination Date as if Miller had continued to be an actively employed senior
executive of the Company for that purpose, and thereafter with respect to
claims relating to the period prior to the Termination Date.
6. For and in consideration of the payments to be made under Paragraphs 2
and 3 hereof, Miller for Miller, Miller's heirs, executors, administrators and
assigns (the "Miller Releasors"), hereby unconditionally releases, discharges
and acquits the Company, its subsidiaries, parents, and affiliates, and each
of them, and their respective officers, directors, shareholders, partners,
employees, agents, and affiliates, and each of them (hereinafter collectively
referred to as "Company Releasees") from any and all debts, agreements,
promises, liabilities, claims, damages, actions, causes of action, or demands
of any kind or nature including without limitation all claims of wrongful
discharge, breach of contract, intentional infliction of emotional distress,
breach of alleged implied covenant of good faith and fair dealing, invasion of
privacy, defamation, and age or sex discrimination, or discrimination based on
any other ground, including but not limited to those arising under the Age
Discrimination in Employment Act, as amended, Title VII of the Civil Rights
Act of 1964, the Employee Retirement Income Security Act of l974, as amended,
the Fair Labor Standards Act, as amended, the Americans with Disabilities Act
and the Family and Medical Leave Act of 1993 and all other federal, state and
local equal employment, fair employment, civil or human rights laws, codes and
ordinances, the Miller Releasors had, now have or may have against the Company
Releasees, whether known or unknown, for, upon, or by reason of, any matter,
action, omission, course or tuning whatsoever occurring up to the date of this
Agreement, other than (i) the payments described in Paragraphs 2 and 3 above,
along with reasonable attorney's fees and costs if Miller sues the Company and
is successful, (ii) any rights to benefits under the terms of employee benefit
plans maintained by the Company or its affiliates, (iii) rights to
indemnification under the Company's directors and officers liability
insurance, Articles of Incorporation and Bylaws and (iv) any rights or claims
as to which a release is prohibited by law.
7. It is understood and agreed that the release set forth in the
preceding paragraph is intended as and shall be deemed to be a full and
complete release of any and all claims that the Miller Releasors may have
against the Company Releasees arising out of any occurrence arising before the
date of this Agreement and said release is intended to cover and does cover
any and all future damages not now known to the Miller Releasors or which may
later develop or be discovered, including all causes of action therefor and
arising out of or in connection with any occurrence arising before the date of
this Agreement.
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The parties understand and expressly agree that this Agreement extends to
all claims prior to the date of this Agreement of every nature and kind
whatsoever, known or unknown, suspected or unsuspected, past or present.
The provisions of Paragraph 6 and this Paragraph 7 shall remain in full
force and effect notwithstanding the earlier termination of Miller's
consultancy arrangement hereunder but shall not affect any claims arising out
of any occurrence arising after the execution of this Agreement by Miller and
the Company.
8. Miller acknowledges that Miller will have knowledge of certain trade
secrets of the Company and its affiliates, including information concerning
the businesses, operations, future plans, methodologies, and customers of the
Company and its affiliates. Miller shall hold in a fiduciary capacity for the
benefit of the Company and its affiliates all secret or confidential
information, knowledge or data relating to the Company and its affiliates and
their respective businesses, which shall have been obtained by Miller during
Miller's prior employment or, in the event the tasks requested to be performed
by Miller, reference Subsection 2.(b)(i), result in trade secret information,
then such information provided to Miller during Miller's consultancy hereunder
and which shall not be or become public knowledge (other than by acts by
Miller or representatives of Miller in violation of this Agreement). Miller
shall not, without the prior written consent of the Company or as may
otherwise be required by law or legal process (provided the Company has been
given notice of any opportunity to challenge or limit the scope of disclosure
purportedly so required), allow others to use to their personal advantage,
communicate or divulge any such information, knowledge or data to anyone other
than the Company and its affiliates and those designated by it or to an
attorney retained by Miller to provide legal advice with respect to this
Paragraph 8 and who has agreed to keep such information confidential. The
provisions of this Paragraph 8 shall remain in full force and effect
notwithstanding the earlier termination of Miller's consultancy agreement
hereunder.
9. While acting as a consultant hereunder for the Company, Miller shall
be provided with all rules and policies of the Company and its affiliates, as
said rules and policies exist as of the Separation Date, along with all
changes to rules and policies of the Company and its affiliates after the
Separation Date through the Termination Date, and, therefore, Miller shall
then comply with the rules and policies of the Company and its affiliates,
including without limitation the Company's code of conduct and compliance
policies.
10. Miller acknowledges that if Miller were to become employed by a
competing organization (competing organization, including affiliates, means an
organization which creates, develops, manufactures, or distributes appliances
or devices currently distributed by the Company or any of the Company's
affiliates), Miller's new job duties and the products, services and technology
of the competing organization would be so similar or related to those
contemplated by this Agreement that it would be very difficult for Miller not
to rely on or use the Company's or its affiliates' trade secrets. Miller
further acknowledges that Miller, and any competing organization, cannot avoid
using the trade secret information, due to the fact that even in the best good
faith, Miller cannot as a practical matter avoid using the knowledge of the
Company's or its affiliates' confidential methods and trade secrets in
Miller's work with a competing organization. Accordingly, Miller will not, (i)
while acting as a consultant hereunder for the Company, and (ii) in the event
that Miller's consultancy arrangement hereunder is
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terminated, for a period until the Termination Date (without the written
consent of the Company); directly or indirectly, own, manage, operate, control
or participate in the ownership, management, operation or control of, or be
connected as an officer, employee, partner, director, member, consultant or
otherwise with, or have any financial interest in, any business that engages
in any business in any of the counties in which the Company or its affiliates
does business (as of the date hereof) that competes with any business actively
conducted by the Company and its affiliates; provided that ownership, for
personal investment purposes only, of less than 5% of the voting stock of any
publicly held corporation shall not constitute a violation hereof. The
provisions of this Paragraph 10 shall remain in full force and effect until
the Termination Date notwithstanding the earlier termination of Miller's
consultancy arrangement hereunder.
11. While acting as a consultant hereunder for the Company and, after
termination of the consultancy arrangement hereunder, for the period until the
Termination Date, Miller shall not, directly or indirectly, on behalf of
himself or any other person, other than Cindy Hepler, solicit for employment
(other than for the Company or any of its affiliates) any person known by
Miller to be employed at the time by the Company or any of its affiliates. The
provisions of this Paragraph 11 shall remain in full force and effect until
the Termination Date notwithstanding the earlier termination of Miller's
consultancy arrangement hereunder.
12. By signing and returning this Agreement, Miller acknowledges that
Miller:
(a) has carefully read and fully understands the terms of this Agreement;
(b) is entering into this Agreement voluntarily and knowing that Miller is
releasing claims that Miller has or believes Miller may have against the
Company;
(c) has hereby been advised by this Agreement that Miller has the right
to consult with an attorney of Miller's choosing prior to signing this
Agreement; and.
(d) is giving this release of claims in return for consideration to which
Miller, or in the event of Miller's death or incapacity to Miller's designated
appointee(s), heirs, successors, or assigns, otherwise would not have been
entitled, to wit, any compensation and benefit enhancements beyond those that
Miller would otherwise be entitled to pursuant to the Company's policies and
practices.
13. Miller and the Company each agree not to make any statement which a
reasonable person would consider disparaging to the Company, its officers or
its directors on the one hand and Miller on the other. The provisions of this
Paragraph 13 shall expire on the Termination Date and shall remain in full
force and effect until the Termination Date notwithstanding the earlier
termination of Miller's consultancy arrangement hereunder.
14. Except as specifically set forth in this Agreement to the contrary,
Miller agrees to return all Company property in Miller's possession to the
Company on or before thirty (30) days following the Separation Date.
15. Miller acknowledges and agrees that any breach of the restrictive
covenants contained in Paragraphs 8, 10, 11, and 13 (collectively referred to
as the "Restrictive
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Covenants") will result in irreparable injury to the Company. The Company
would not have agreed to the terms and the provisions of this Agreement but
for the Restrictive Covenants. Miller agrees that, in the event of such a
violation or threatened violation, in addition to any remedies at law, the
Company shall be entitled to seek equitable relief in the form of specific
performance, temporary restraining order, temporary or permanent injunction or
any other equitable remedy which may then be available. If any court
determines that any of the covenants contained in this Agreement, including,
without limitation, any of the Restrictive Covenants, or any part thereof, is
unenforceable because of the duration, geographical scope of such provision,
or such other reason as determined by a court, as the case may be, then said
covenant or covenants shall be reduced/modified so that such unenforceable
provision becomes enforceable and, in its reduced/modified form, such
provision shall be enforced.
16. This Agreement sets forth the entire agreement between the parties
regarding Miller's separation from the Company, supersedes any prior written,
oral or implied agreement between the parties hereto regarding the subject
matter hereof and may only be amended by a written agreement signed by the
parties hereto.
17. Miller agrees and understands that neither the content nor the
execution of this Agreement shall constitute or be construed as any implied or
actual admission by the Company of any liability to or of the validity of any
claim by Miller that Miller is entitled to additional compensation or a
continuation of consultancy arrangement hereunder or that the Company engaged
in any wrongdoing.
18. Miller hereby represents and agrees that in entering into this
Agreement, Miller has relied solely upon Miller's own judgment, belief and
knowledge and Miller's own legal and other professional advisors and that no
statement made by or on behalf of the Company has in any way influenced Miller
in such regard.
19. Miller hereby represents and warrants to the Company that Miller has
not assigned any claim Miller may or might have against the Company to any
third party.
20. Each party shall pay its own attorneys' fees, costs and expenses
related to this Agreement.
21. This Agreement shall be governed by and construed in accordance with
the laws of the State of Indiana.
22. It is agreed by each of the parties hereto that they have read the
above and fully understand the terms of this Agreement which they voluntarily
execute in good faith and deem to be a full and equitable settlement of this
matter.
23. The provisions of this Agreement are severable. If any provision of
the Agreement is declared invalid or unenforceable, the ruling will not affect
the validity and enforceability of any other provision of the Agreement.
24. Miller may review and consider this Agreement for a period of up to
twenty-one (21) days from the date of submission to Miller of the signature
form of this Agreement, May 8, 2006, Miller agrees and understands that
Miller's failure to execute this Agreement and to return
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this signed document on or before twenty-one (21) days after the date of
submission to Miller of the signature form of this Agreement will release the
Company from any obligation to enter into this Agreement.
25. As a consultant, Miller shall be an independent contractor and not an
employee of the Company; however, Miller's status as a non-employee director
of the Company shall continue as reflected in Section 3 hereof with all of the
related benefits, including, but not limited to, health care coverage and
expense reimbursement, as an outside director.
26. Miller and the Company acknowledge and agree that Miller shall retain
his cellular phone, PDA, and laptop computer, along with the vehicle in
Miller's possession for which the Company paid for a monthly lease amount of
$300 through September 30, 2006 at which time the assets will be transferred
to Miller. Effective upon thirty (30) days written notice to Miller by the
Company, the aircraft lease between the Company, on the one hand, and Miller
or his affiliate, on the other hand, shall be terminated.
27. Furthermore, Miller shall be entitled to revoke this Agreement within
seven (7) days after Miller's timely execution of same (which execution may be
as late as May 29, 2006), by delivering a written revocation to the Company.
If Miller so revokes or if Miller fails to execute this document, this
Agreement shall be null and void and of no force and effect.
Agreed and Accepted:
/s/ DANE A. MILLER
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DANE A. MILLER
Agreed and Accepted for BIOMET, INC.
/s/ DANIEL P. HANN
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Name: DANIEL P. HANN
Title: Interim President and Chief Executive Officer