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EXHIBIT 10.13
SEVERANCE AGREEMENT AND RELEASE
THIS SEVERANCE AGREEMENT AND RELEASE is entered into as of
this 27th day of March, 1996, by and between Phillip D. Messinger ("Messinger")
and Medex, Inc. ("Medex").
WHEREAS, the purpose of this Agreement and General Release is
to set forth certain understandings which have been reached between Messinger,
an individual residing in Ohio, and Medex, a corporation organized and existing
under the laws of the State of Ohio, maintaining its headquarters in Hilliard,
Ohio; and
WHEREAS, Messinger has been an employee of Medex and served as
its Chief Executive Officer from March 1993 until October 1995; and
WHEREAS, since 1976, Messinger has served as a Director of
Medex; and
WHEREAS, Messinger desires to resign as a Director for
personal reasons; and
WHEREAS, both Messinger and Medex desire to end all
relationships between them with a minimum of hardship to Messinger and
disruption to Medex and to memorialize their agreement, which settles and
resolves any and all disputes between them.
NOW, THEREFORE, in exchange for and in consideration of the
following promises, and other valuable consideration the receipt and sufficiency
of which is acknowledged by Messinger, the parties agree as follows:
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1. SEVERANCE PAYMENT. Medex will pay Messinger as a severance
payment the sum of Four Hundred Twenty-Eight Thousand Dollars ($428,000), less
all applicable payroll deductions required by law. This payment shall be made no
earlier than April 1, 1996, nor later than April 5, 1996, and shall be sent to
Escrow Account Number 5364401, Bank One, Columbus, NA or to such other account
or entity as directed by the Common Pleas Court of Franklin County, Division of
Domestic Relations in Case No. 93DR-12-6116. This payment shall be deemed to
include all vacation pay, accrued but unused, as of the date of this Agreement.
2. HEALTH INSURANCE. Medex shall provide continued health
insurance coverage for Messinger through the COBRA Termination Date. For
purposes of this Section 2, the "COBRA Termination Date" shall be the earlier
of: (i) the effective date of Messinger's notification to Medex that he no
longer desires COBRA coverage, or (ii) the date upon which COBRA coverage
expires, which date shall be no later than August 1, 1997. Upon the COBRA
Termination Date, Medex shall pay to Messinger the sum of $8,000.00 less $216.78
per month times the number of months elapsed since the date of this Agreement.
If Medex is unable to provide the COBRA coverage for 36
months, Messinger may prefer to obtain coverage elsewhere.
3. ADDITIONAL PAYMENT. Medex shall pay Messinger an additional
lump sum payment of Two Hundred Forty-Two Thousand Six Hundred Thirteen and Six
Tenths Dollars ($242,613.60), less all applicable payroll deductions required by
law, as additional consideration for his Release and promises of
Confidentiality as to this
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Agreement and as to Medex's proprietary information and trade
secrets, described below. This payment shall be made no earlier than April 1,
1996, nor later than April 5, 1996, and shall be sent to Escrow Account Number
5364401, Bank One, Columbus, NA or to such other account or entity as directed
by the Common Pleas Court of Franklin County, Division of Domestic Relations in
Case No. 93DR-12-6116.
4. LIFE INSURANCE POLICY. Medex agrees to transfer its entire
interest in the Great West Split Dollar Key Man Life Insurance Policy (Policy
No. 4205594) to Messinger. Medex shall have no responsibility for any premium
payments due on or after December 1, 1995, in respect of such policy.
5. PERSONAL COMPUTER. Messinger shall retain as his own the
personal computer purchased by Medex and presently in Messinger's possession,
provided, however, that Messinger permit a Medex employee to remove and delete
all files containing confidential or proprietary information from its memory.
6. RELEASE BY MESSINGER. In consideration of the benefits
provided in paragraphs 1 through 5 above and the other promises in this
Agreement and General Release, Messinger, for himself, his family, heirs,
executors, administrators, and assigns, fully and forever releases, acquits, and
discharges Medex, any and all of its operating companies, or entities,
subsidiary companies or entities, parent companies or entities, and affiliate
companies or entities, and their respective officers, directors, employees, and
agents of and from any and all claims, demands, damages, expenses, liabilities,
judgments, and causes of action, including claims for attorneys' fees, which
Messinger now has or may have arising under any federal, state, or local
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statutory or common law, whether in law or in equity, whether in any federal or
state court or before an administrative agency of any federal, state, county or
municipal government.
7. SCOPE OF RELEASE BY MESSINGER. The Release by Messinger
extends, without limitation, to rights and claims related to Messinger's
treatment by Medex during the course of and in connection with Messinger's
employment and separation from his employment with Medex and his treatment by
Medex as a Director of Medex, including but not limited to any claims Messinger
may have under the Age Discrimination in Employment Act (as amended by the Older
Workers Benefit Protection Act). The Release by Messinger does not extend to
rights or claims arising after the execution of this Severance Agreement and
Release, does not extend to the enforcement of Messinger's rights under this
Agreement and does not extend to Messinger's rights under the Medex, Inc.
Employee Profit Sharing Plan. Further, notwithstanding anything to the contrary
in this Severance Agreement and Release, Messinger does not release or discharge
Medex from any claim which Messinger may hereafter have against Medex for
indemnification under Ohio Revised Code Section 1701.13, or under Medex's
Articles of Incorporation, Code of Regulations, or any agreement, vote of
shareholders or disinterested directors or otherwise with respect to
indemnification of directors and/or officers. Additionally, Medex hereby agrees
to indemnify Messinger to the fullest extent permitted or permissible by Section
1701.13, or under its Articles of Incorporation, Code of Regulations, any
agreement, a vote of
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shareholders or disinterested directors or otherwise with respect to
indemnification of directors and/or officers.
8. RIGHTS TO COUNSEL AND REVOCATION. Messinger has been
advised that he (a) should consult with his attorney before signing this
Severance Agreement Release; (b) has twenty-one days within which to consider
signing this Severance Agreement and Release; and (c) may revoke this Severance
Agreement and Release at any time before the expiration of seven days after he
signs it. Messinger acknowledges that he has been consulting with Attorney
Richard A. Barnhart, Esq. for a period in excess of 21 days on all legal matters
pertaining to this Agreement and General Release.
9. RELEASE BY MEDEX. In consideration of the promises herein,
Medex, for itself, its affiliates and assigns, fully and forever releases,
acquits, and discharges Messinger, of and from any and all claims, demands,
damages, expenses, liabilities, judgments, and causes of action, including
claims for attorneys' fees, which Medex now has or may have arising under any
federal, state, or local statutory or common law, whether in law or in equity,
whether in any federal or state court or before an administrative agency of any
federal, state, county or municipal government, relating directly or indirectly
to or resulting directly or indirectly from Messinger's employment, or his
separation from employment, with Medex, and any loan obligations by Messinger to
Medex for certain stock options, the balance of which as of March 31, 1996, is
$7,386.40.
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10. SCOPE OF RELEASE BY MEDEX. The Release by Medex does not
extend to rights or claims arising after the execution of this Severance
Agreement and Release, and does not extend to the enforcement of Medex's rights
under this Agreement.
11. CONFIDENTIALITY. Messinger agrees not to, at any time,
talk about, write about or otherwise publicize the terms of this Severance
Agreement and Release which were negotiated, executed or implemented, including,
but not limited to, the existence and amount of the benefits, except with: (1)
his attorney or tax advisor; (2) his immediate family, provided his attorney,
tax advisor and his immediate family agree in advance to keep such information
confidential and not to disclose it to others; and (3) upon proper request by
any court of competent jurisdiction, the Internal Revenue Service or other
governmental agency, such court or agency. The provisions of this paragraph
concerning Messinger's confidentiality obligations constitute material
consideration for Medex's obligations under this Severance Agreement and
Release. Notwithstanding the foregoing, if Medex makes public this Agreement
(other than by proper request by a court of competent jurisdiction, the IRS or
other government agency other than the Securities and Exchange Commission), then
Messinger shall not have any duty of confidentiality under this Section 11.
12. RESIGNATION OF MESSINGER AS A MEDEX DIRECTOR; STOCK
OPTIONS. Messinger shall resign as a Director of Medex pursuant to the form of
letter attached as Exhibit A. Messinger shall be paid directors' fees for the
first quarter of 1996 totaling $2,250. For purposes of this Agreement,
Messinger's employment by Medex shall be
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deemed to have terminated on January 15,1996. Messinger has options to purchase
Medex common shares under three Option Plans which are exercisable as follows:
Option Plan Number Exercisable Until
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Administrative Plan II 22,500 April 15, 1996
Executive 17,300 August 24, 1999
Key Employee Non Statutory 10,000 January 15, 1999
Messinger agrees to timely make all Securities and Exchange
Commission filings required by the rules and regulations under Section 16 of the
Securities Exchange Act of 1934, as amended, and to furnish Medex copies of the
same.
13. RETURN OF COMPANY CAR AND CREDIT CARDS. Messinger shall
return the car used by him and paid for by Medex to Medex on or before the
eighth day after execution of this Agreement. Messinger shall also return all
Medex credit cards whether active or cancelled and agrees to reimburse Medex for
any personal expenses charged on such cards.
14. EXECUTION OF AFFIDAVIT AND DISCLOSURE OF INVENTIONS.
Messinger shall execute and deliver to Medex the accompanying Affidavit (Exhibit
B) concerning the hiring of Don Barry. Messinger shall fully disclose on Exhibit
C all inventions or improvements made or conceived by him, solely or with
others, during his employment with Medex. Where the subject matter of such
inventions or improvements results from or is suggested by any work which
Messinger may have done for or on behalf of Medex or relates in any way to
Medex's business (or that of its affiliated companies), Medex shall have all
rights to such inventions and improvements, whether they are patentable
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or not. The fact that such inventions and improvements were made or conceived by
Messinger outside of Medex's facilities or other than during Messinger's working
hours with Medex shall not diminish Medex's rights with respect to such
inventions or improvements. At the request of Medex, Messinger shall execute or
join in executing all papers or documents required for the filing of patent
applications in the United States and such foreign countries as Medex may elect,
and Messinger shall assign all such patent applications to Medex or its nominee,
and shall provide Medex or its agents or attorneys with all reasonable
assistance in the preparation and prosecution of patent applications, drawings,
specifications, and ;the like, all at the expense of Medex, and shall do all
that may be necessary to establish, protect and maintain the rights of Medex or
its nominee in the inventions, patent applications, and Letters Patent in
accordance with the spirit of this Agreement.
15. CONFIDENTIALITY OF PROPRIETARY INFORMATION AND TRADE
SECRETS. Messinger shall keep and maintain Confidential Information of Medex
confidential and shall not, at any time, either directly or indirectly, use any
Confidential Information for his benefit or to the benefit of any other person
or entity, and shall not divulge, disclose or reveal or otherwise communicate
any Confidential Information to any person or entity in any manner whatsoever,
except as required by law. For purposes of this Agreement, "Confidential
Information of Medex" means any and all non-public, confidential and proprietary
information and trade secrets of Medex, which includes without limitation:
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(a) any business plans, processing information,
financial information, purchasing data, supplier data, accounting data, or other
financial or processing information;
(b) any inventions, technical information, drawings
or designs, production techniques, patents, patent applications, copyrights or
copyright applications (in any case, whether registered or to be registered in
the United States or any foreign country);
(c) any marketing or sales information, sales
records, customer lists, prices, sales projections or other listing of names,
addresses, or telephone numbers, or other sales information;
(d) trade secrets and confidential matter or
information as relating to Medex and its business defined by the statutory and
common law of the State of Ohio; and
(e) trade secrets and confidential matter or
information to which Medex is under an obligation to a third party.
"Confidential Information of Medex" does not include, however, information
generally available to and known by the public and information that is or
becomes available to Messinger on a non-confidential basis from a source other
than Medex or Medex employees or agents and information independently acquired
or developed by Messinger without violating any of his obligations under this
Agreement. Additionally, "Confidential Information of Medex" does not include
any information which does not satisfy both of the following:
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(1) It derives independent economic value, actual or potential,
from not being generally known to, and not being readily
ascertainable by proper means by, other persons who can obtain
economic value from its disclosure or use, and
(2) It is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.
Medex hereby agrees that any claim by it that Messinger has
breached the covenants of this Section 15 shall not entitle it to an award of
damages based upon a theory of rescission of this Agreement or any recovery of
the amounts paid to Messinger hereunder, but shall only entitle Medex to recover
damages directly incurred as a result of Messinger's conduct which is violative
of this Section 15, as well as such injunctive relief as a court of competent
jurisdiction may grant.
16. TERMINATION OF DISPUTES. Messinger and Medex agree that
each party intends to avoid litigation and controversy. As a condition precedent
to Medex's obligations under this Agreement, Messinger shall effectuate a
dismissal of Medex with prejudice in the litigation, styled Messinger v.
Messinger, et al., Case No. 93DR-12-6116 pending in the Court of Common Pleas of
Franklin County, Ohio, Division of Domestic Relations, and a dismissal of the
Restraining Order in such case concerning Medex. This Severance Agreement and
Release is not to be construed as an admission of liability for any wrongful
conduct on the part of either Messinger or Medex.
16. GOVERNING LAW. This Severance Agreement and Release shall
be governed by and construed in accordance with the laws of the State of Ohio.
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17. EXECUTION IN PARTS. This Severance Agreement and Release
may be executed in multiple counterparts, each of which shall constitute an
original, and all of which shall constitute a single memorandum.
18. INTEGRATION CLAUSE. This Severance Agreement and Release
sets forth the entire agreement between Messinger and Medex with respect to its
subject matter and supersedes and replaces any and all prior or contemporaneous
representations or agreements, whether oral or written.
19. ENFORCEABILITY. This Severance Agreement and Release shall
be construed and interpreted so as to be enforceable to the fullest extent
permitted by law and to the extent that any provision shall be deemed
unenforceable or invalid in any jurisdiction, such invalidity and
unenforceability shall not affect its validity or enforceability in any other
jurisdiction, nor shall it affect the enforceability or validity of any other
provision hereof.
20. AMENDMENT. This Severance Agreement and Release may not be
amended or modified, except by a written memorandum executed by both Messinger
and Medex.
21. VOLUNTARY ACTS. Both Messinger and Medex acknowledge that
each has carefully read this Severance Agreement and Release and knowingly and
voluntarily agree to execute it.
PHILLIP D. MESSINGER ACKNOWLEDGES THAT HE HAS CAREFULLY READ AND FULLY
UNDERSTANDS ALL THE PROVISIONS OF THIS SEVERANCE AGREEMENT AND RELEASE, THAT HE
HAS BEEN GIVEN AT LEAST TWENTY-ONE DAYS WITHIN WHICH TO CONSIDER SIGNING THIS
AGREEMENT AND
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RELEASE, THAT HE HAS BEEN ADVISED TO CONSULT WITH HIS ATTORNEY, THAT HE MAY
REVOKE THIS AGREEMENT AND RELEASE WITHIN SEVEN DAYS AFTER HE SIGNS IT, AND THAT
HE KNOWINGLY AND VOLUNTARILY HAS ENTERED INTO THIS AGREEMENT AND RELEASE IN
EXCHANGE FOR VALUABLE CONSIDERATION, INCLUDING THE BENEFITS IDENTIFIED IN
PARAGRAPHS 1 THROUGH 5 HEREOF.
IN WITNESS WHEREOF, the parties hereby execute this Severance
Agreement and Release as of the day and year first above written.
WITNESSES:
/s/ /s/ Phillip D. Messinger
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PHILLIP D. MESSINGER
/s/
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WITNESSES: MEDEX, INC.
/s/
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By /s/ Terry L. Sanborn
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/s/
- -------------------- Its Senior VP & COO
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