EXHIBIT 10.1
SEPARATION AGREEMENT AND FULL RELEASE OF ALL CLAIMS
THIS SEPARATION AGREEMENT AND FULL RELEASE OF ALL CLAIMS (hereinafter
the "Agreement") is entered into by and among MICROTEK MEDICAL HOLDINGS, INC.
(the "Company") and BARBARA J. OSBORNE ("Employee").
WITNESSETH
A. The Company and Employee are parties to that certain Employment
Agreement (the "Employment Agreement") dated as of June 14, 2004.
B. The Company and the Employee have mutually agreed to terminate the
employment of the Employee with the Company.
C. Employee and the Company are terminating their employment relationship
effective March 3, 2005, and desire to settle fully and finally all differences
between them that may arise out of or relate to Employee's employment with the
Company and all other claims Employee has or may have through the date of
execution of this Agreement.
NOW, THEREFORE, in consideration of the recitals, the mutual agreements
contained herein and other good and valuable consideration, the receipt,
adequacy and sufficiency of which is hereby acknowledged, the parties to this
Agreement hereby agree, promise and covenant as to each of the following:
1. Capacity to Execute.
Each of the parties represents and warrants that he or it is legally
viable and competent to enter into this Agreement, is relying on independent
judgment and the advice of legal counsel and has not been influenced, pressured
or coerced to any extent whatsoever in making this Agreement by any
representations or statements made by the Company and/or any person or persons
representing the Company, and that the individuals executing this Agreement on
his or its
behalf are authorized to do so. Each of the parties further represents and
warrants that he or it has not sold, assigned, transferred, conveyed or
otherwise disposed of all or any part of the claims released hereunder, whether
known or unknown.
2. Specific Consideration Provided to Employee.
In exchange for the covenants of Employee hereunder and other good and
valuable consideration, and in addition to the benefits to Employee set forth in
the Employment Agreement (including those benefits set forth in Section 8(c) of
the Employment Agreement) which shall remain in full force and effect subject to
the terms and conditions thereof, Employee shall receive the following forms of
compensation as severance from the Company:
(a) Provided Employee shall not have breached any of the covenants
contained in this Agreement or the Employment Agreement, Employee shall receive:
A lump sum payment in the amount of $157,500 payable within five (5)
days after the Effective Date (as defined in Section 10(e) below) of this
Agreement, less any legally required deductions and withholdings
(b) Bonus for the fourth quarter in the amount of $21,656.25 payable
within five (5) days after the Effective Date (as defined in Section 10(e)
below) of this Agreement, less any legally required deductions and withholdings
(c) The benefits set forth in Section 8(c)(ii) of the Employment
Agreement which provide for twelve months of COBRA coverage for Employee and
Employee's dependents who are currently included in such coverage subject to
COBRA to the extent such benefits otherwise are in effect for Employee under the
Employment Agreement, understanding however that Employee is responsible for
complying with all terms and conditions of any employee benefit plan to obtain
such benefits.
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(d) Executive outplacement services as shall be designated by the
Company for a period of six (6) months from and after March 3, 2005.
The severance obligations set forth in paragraph 2 herein shall
constitute the total payment and severance obligations under this Agreement,
which represent payments and obligations that Employee would not otherwise be
entitled to receive from the Company. Accordingly, Employee understands and
warrants that no amount other than as set forth in this Section 2 (which
includes amounts set forth in the Employment Agreement) is or shall be due or
claimed to be due from the Company and/or from any other person or entity
released in paragraph 3 below with respect to any claim or claims released in
paragraph 3 below, including, but not limited to, any and all claims for
attorneys' fees and the costs of litigation that he may have under any federal,
state or local law, common law or in equity.
3. Full Release of all Claims by Employee.
In consideration of the payment provided for in paragraph 2 above and
other good and valuable consideration, the receipt, adequacy, and sufficiency of
which is hereby acknowledged, Employee and his heirs, executors, administrators,
agents, assigns, receivers, attorneys, servants, legal representatives,
predecessors and successors in interest, regardless of form, trustees in
bankruptcy or otherwise, wards, and any other representative or entity acting on
his or their behalf, pursuant to, or by virtue of the rights of any of them, do
hereby now and forever unconditionally release, discharge, acquit and hold
harmless the Company and any parent, subsidiary or related companies, and any
and all of their employees, agents, administrators, assigns, receivers,
attorneys, servants, legal representatives, affiliates, insurers, predecessors
and successors in interest, regardless of form, trustees in bankruptcy or
otherwise, insurance benefit plans, and any other representative or entity
acting on its or their behalf (collectively, the "Released Parties"), from
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any and all claims, rights, demands, actions, suits, damages, losses, expenses,
liabilities, indebtedness, and causes of action, of whatever kind or nature that
existed from the beginning of time through the date of execution of this
Agreement, regardless of whether known or unknown, and regardless of whether
asserted by Employee to date, including, but not limited to, all claims for or
relating to assault, battery, negligence, negligent hiring, negligent retention,
negligent supervision, negligent training, negligent or intentional infliction
of emotional distress, false imprisonment, defamation (whether libel or
slander), personal injury, bodily injury, bad faith, pain and suffering, medical
expenses, wage and hour, lost income and earnings (including, but not limited
to, back pay, front pay and any other form of present or future income, benefits
and/or earnings), equitable reinstatement, breach of any express or implied
contract, breach of the covenant of good faith and fair dealing, workers'
compensation, wrongful termination, wrongful demotion, wrongful failure to
promote, wrongful deprivation of a career opportunity, discrimination (including
disparate treatment and disparate impact), hostile work environment, quid pro
quo sexual harassment, retaliation, any request to submit to a drug or polygraph
test, and/or whistleblowing, whether said claim(s) are brought pursuant to Title
VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, 42 U.S.C. ss.
1981, the Employee Retirement Income Security Act, the Equal Pay Act, the
Pregnancy Discrimination Act, the Fair Labor Standards Act, the Age
Discrimination in Employment Act, the Americans with Disabilities Act, the
Family and Medical Leave Act or any other constitutional, federal, regulatory,
state or local law, or under the common law or in equity.
Employee further understands and warrants that this Agreement shall
operate as a fully binding and complete resolution of all claims as to the
parties to this Agreement and all parties represented by or claiming through
such parties, and that he shall not be able to seek any monies for
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any claim, whether known or unknown, against any of the persons or entities
released hereunder other than as provided in paragraph 2 above.
4. Covenant Not-to-Sue.
Employee covenants and agrees not to file or initiate a lawsuit
against any of the Released Parties in regard to any claims, demands, causes of
action, suits, damages, losses and expenses, arising from acts or omissions of
the Company occurring on or before the date of execution of this Agreement, and
Employee will ask no other person or entity to initiate such a lawsuit on his
behalf. If Employee breaches this covenant and agreement, Employee must
immediately repay and refund to the Company all payments he received pursuant to
paragraph 2 above, and Employee shall also indemnify and hold harmless the
Company, any of the Released Parties, and any of their officers, owners,
directors, employees and agents from any and all costs incurred by any and all
of them, including their reasonable attorneys' fees, in defending against any
such lawsuit.
5. No Proceedings Initiated.
Employee represents and warrants that neither he nor anyone acting on
his behalf has filed or initiated any charge or claim against the Company in any
administrative or judicial proceeding.
6. Covenants of Employee.
(a) Employee ratifies and confirms each and every covenant and
agreement of Employee contained in the Employment Agreement. Employee
acknowledges that certain of such covenants and agreement survive the
termination of employment of Employee with the Company and remain in full force
and effect in accordance with their terms.
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(b) Employee agrees that he shall not disparage the Company or
otherwise seek to reduce the goodwill of the Company. The Company agrees not to
disparage Employee or to act in any way to diminish Employee's reputation.
7. No Voluntary Assistance.
Employee hereby covenants and agrees thats he will not voluntarily
assist, support, or cooperate with, directly or indirectly, any entity or person
alleging or pursuing any claim, administrative charge, or cause of action
against the Company, including without limitation, by providing testimony or
other information, audio or video recordings, or documents, except under
compulsion of law. If compelled to testify, nothing contained herein shall in
any way inhibit or interfere with Employee providing completely truthful
testimony. Nor shall anything herein prevent Employee's full cooperation with
any investigation or other proceeding by any federal, state or local
governmental agency.
8. No Admission of Liability.
The parties agree and acknowledge that this Agreement is a full and
complete compromise of the matters released herein between the parties hereto;
that neither the releases nor the negotiations for this Agreement and the
settlement embodied herein, including all statements or communications made to
date, shall be considered admissions by them.
9. Intentionally Omitted.
10. OWBPA Rights.
(a) Employee is advised to seek legal counsel regarding the terms of
this Agreement. Employee acknowledges that she has either sought legal counsel
or has consciously decided not to seek legal counsel, contrary to the Company's
advice, regarding the terms and effect of this Agreement.
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(b) Employee acknowledges that this Agreement releases only those
claims which exist as of the date of Employee's execution of this Agreement.
(c) Employee acknowledges that he may take a period of twenty-one (21)
days from the date of receipt of this Agreement (April 1, 2005) within which to
consider and sign this Agreement.
(d) Employee acknowledges that she will have seven (7) days from the
date of signing this Agreement to revoke the Agreement in writing in its
entirety ("Revocation Period"). Employee acknowledges that the Agreement will
not become effective or enforceable until the Revocation Period has expired. In
the event the Employee chooses to revoke this Agreement, within the Revocation
Period, she will:
1. Revoke the entire Agreement in a signed writing, delivered to
the following person on or before the seventh (7th) day after he executed the
Agreement:
Mr. Jeff Stearns
Microtek Medical Holdings, Inc.
13000 Deerfield Parkway, Suite 300
Alpharetta, Georgia 30004
2. Forfeit all severance and other consideration from the Company
that are contemplated by this Agreement; and
3. Return the full amount of consideration received, if any, to
the Company along with the signed writing.
(e) The Effective Date of this Agreement shall be the eighth (8th) day
after the date Employee signs the Agreement, assuming the Employee has not
revoked the Agreement in writing within the Revocation Period.
(f) Employee expressly acknowledges that the payments and the other
consideration that he is receiving under this Agreement constitute material
consideration for his
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execution of this Agreement, and represent valuable consideration to which he
would not otherwise be entitled.
11. Jurisdiction/Choice of Forum.
The laws of the State of Georgia shall govern this Agreement, unless
pre-empted by any applicable federal law controlling the review of this
Agreement. The parties further stipulate and agree that any litigation regarding
this Agreement shall be brought in the state or federal courts for the Northern
District of Georgia and neither party will object to personal jurisdiction or
venue in any of these courts.
12. Advice of Attorneys.
The parties acknowledge that they have fully read, understood and
unconditionally accepted this Agreement after consulting with their attorneys or
having the opportunity to consult with an attorney, and acknowledge that this
Agreement is mutual and binding upon all parties hereto regardless of the extent
of damages allegedly suffered by any of the parties hereto.
13. Counterparts.
This Agreement may be signed in counterpart originals with the same
force and effect as if signed in a single original document.
14. Cooperation of the Parties.
The parties to this Agreement agree to cooperate fully and to execute
any and all supplementary documents and to take all additional actions that may
be necessary or appropriate to give full force and effect to the basic terms and
intent of this Agreement and the settlement embodied herein. Employee further
agrees to fully cooperate with the Company in any and all investigations,
inquiries or litigation whether in any judicial, administrative, or public,
quasi-public or private forum, in which the Company is involved, whether or not
Employee is a defendant in
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such investigations, inquiries, proceedings or litigation. Employee shall
provide truthful and accurate testimony, background information, and other
support and cooperation as the Company may reasonably request. The Company will
compensate Employee for all travel expenses, attorney's fees, and preparation
expenses and lost wages associated with pursuit of actions necessary to comply
with Section 14.
15. Modification in Writing Only.
Neither this Agreement nor any provision of this Agreement may be
modified or waived in any way except by an agreement in writing signed by each
of the parties hereto consenting to such modification or waiver.
16. Construction of this Agreement.
The parties agree that they each have participated in the drafting of
this Agreement, and that, as a result, this Agreement shall not be construed in
favor of or against any party hereto.
17. No False Statements or Misrepresentation.
The Company and Employee hereby warrants and represents that they have
not made any false statements or misrepresentations in connection with this
Agreement.
18. Headings and Captions; Pronouns.
The headings and captions used in the Agreement are for convenience of
reference only, and shall in no way define, limit, expand, or otherwise affect
the meaning or construction of any provision of this Agreement. The use of any
word in any gender shall be deemed to include any other gender and the use of
any word in the singular shall be deemed to include the plural where the context
requires.
19. Entire Agreement.
This Agreement contains the entire agreement of the parties concerning
the subject
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matter hereof, and is intended and shall be construed as an integrated
Agreement. Each party understands, acknowledges and hereby represents and
warrants that this Agreement supersedes any and all prior or contemporaneous
understandings, agreements, representations and/or promises, whether oral or
written, which are not expressly set forth herein or expressly referred to in
this Agreement, and no understanding, agreement, representation, warranty,
promise or inducement has been made concerning the subject matter of this
Agreement other than as set forth in this Agreement, and that each party enters
into this Agreement without any reliance whatsoever upon any understanding,
agreement, representation, warranty or promise not set forth herein.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto, jointly and severally, and the past, present and future heirs,
executors, administrators, agents, employees, servants, attorneys, affiliated
persons and entities, predecessors and successors in interest and assigns,
regardless of form, trustees in bankruptcy or otherwise, and any other
representative or entity acting on behalf of, pursuant to, or by virtue of the
rights of each.
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Signatures contained on following page]
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IN WITNESS WHEREOF, the undersigned have executed this Separation Agreement
and Full Release of All Claims.
EMPLOYEE:
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Barbara J. Osborne
Date:
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MICROTEK MEDICAL HOLDINGS, INC.:
By:
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Its:
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Date:
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