severance agreement - male 40 or over









Exhibit 10.36




 




SEVERANCE

AGREEMENT




 




This Severance and

Redemption Agreement effective as of the 9th day of February, 2002,

by and between Vital Images, Inc., a Minnesota corporation (“Company”) and

Albert Emola (“Employee”).




 




W I T N E S S E T H:




 




WHEREAS, Employee

was employed by Company pursuant to an Employment Agreement with Company dated

December 27, 1999 (the “Employment Agreement”);




 




WHEREAS, pursuant

to the Employment Agreement, Employee entered into an Incentive Stock Option

Agreement and a Non-Qualified Stock Option Agreement with Company, each dated

December 28, 1999 (collectively, the “Stock Option Agreements”); and




 




WHEREAS, Employee

is a shareholder of Company.




 




NOW, THEREFORE, in

consideration for the promises and covenants contained herein, the receipt and

sufficiency of which the parties acknowledge, the parties hereby agree as

follows:




 




1.             Definitions.  We intend all words used in this Severance

and Redemption Agreement (“Agreement”) to have their plain meanings in ordinary

English.  Specific terms we use in this

Agreement have the following meanings:




 




A.            Employee, as

used herein, shall mean the undersigned Employee, except that with respect to

paragraphs 4.A. and 4.B. it shall also include anyone who has obtained any

legal rights or claims through the undersigned Employee.




 




B.            Company, as

used herein, shall at all times mean Company and its parent companies, its

subsidiaries, successors and assigns, its affiliated and predecessor companies,

its successors and assigns, and the present or former directors, officers,

employees, representatives, and agents (including, without limitation, their

accountants and attorneys) of any of them, whether in their individual or

official capacities, and the current and former trustees or administrators of

any pension or other benefit plan applicable to Employee or former employees of

Company, in their official or individual capacities.




 




C.            Employee’s Claims,

as used herein, means all of the rights Employee has now to any relief of any

kind from Company whether or not Employee now knows about those rights, arising

out of his employment with Company, and his employment termination, including,

but not limited to, claims arising under the Age Discrimination in Employment

Act; the Minnesota Human Rights Act; the Americans with Disabilities Act; Title

VII of the Civil Rights Act of 1964, as amended; or other federal, state or

local civil rights laws; claims for breach of contract; fraud or

misrepresentation; defamation, intentional or negligent infliction of emotional

distress; breach of covenant of good faith and fair dealing; promissory

estoppel; negligence; wrongful termination of employment; and any other claims

for unlawful




 





























 




employment practices; and claims for any compensation, bonus or wages

in addition to those payments set forth in Section 3.




 




D.            Company’s Claims,

as used herein, means all of the rights Company now has to any relief of any

kind from Employee, whether or not Company now knows about those rights,

arising out of Employee’s employment with Company or his status as shareholder

or officer.




 




2.             Termination.  On February 9, 2002, Employee’s employment

with Company was terminated.  Employee

and Company agree Employee will be relieved of his duties with Company after

February 9, 2002.




 




3.             Company’s Obligations And

Severance Agreements.  In

consideration for Employee’s promises contained herein, specifically including,

but not limited to, the release of all Employee’s claims and Employee’s

promises to refrain from disclosing confidential information and trade secrets

of Company, Company agrees as follows:




 




A.            Severance Payment.  Pursuant to Section 4.2 of the Employment

Agreement, Company agrees to pay to Employee a severance payment of $192,000.00

(“Severance Payment”) which is equal to twelve (12) months of Employee’s salary

calculated at Employee’s regular rate of pay as of the date of this

Agreement.  This Severance Payment will

be payable in one lump sum within ten (10) days after the expiration of the

Rescission Periods, as defined herein. 

The Severance Payment shall be subject to federal and state withholding

taxes and FICA.




 




B.            Incentive Compensation.  Employee acknowledges that Company has paid

Employee an Incentive Bonus (“Bonus”) for the 2001 calendar year in the amount

of $85,092.00, and that the Bonus is in full satisfaction of any and all claims

or rights Employee may have to a bonus including, but not limited to, any and

all claims or rights for a bonus under Section 2 of the Employment Agreement.




 




C.            Vacation.  Company agrees that in lieu of all accrued

vacation pay due to Employee, Employee shall be entitled to retain the February

15 and February 28 regular payroll payments made erroneously to Employee.  Employee acknowledges receipt of said

payments.




 




D.            Options.  Company and Employee acknowledge and agree

that the schedule attached hereto as Exhibit A, incorporated herein by

reference, identifies the options granted to Employee and the extent to which

said options have vested through the date of termination.  Employee acknowledges that any of said

vested options that have not been exercised within a period of three months

after termination of employment shall immediately terminate and will not

thereafter be exercisable.




 




E.             Medical

Insurance Benefits.  Company,

pursuant to federal and state law, will provide, for a period of eighteen (18)

months following the effective date of Employee’s termination (“COBRA Period”),

a continuation of the group medical insurance coverage previously provided to

Employee and his spouse  by

Company.  Through February 28, 2002,




 




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Company will pay the premium for the group medical insurance that it

paid during Employee’s employment. 

After such date, Employee will be required to pay for such benefits for

the remainder of the COBRA Period, should Employee elect to continue COBRA

coverage.




 




F.             Outplacement

Payment.  To assist Employee in

obtaining a new position and help defray the cost of outplacement services, the

Company agrees to pay Employee the aggregate sum of Twenty Thousand Dollars

($20,000).  Said payment shall be made

to Employee with the payment due pursuant to paragraph 3A above.




 




G.            Computer/Palm

Pilot.  The Company agrees that

Employee shall be entitled to retain the computer and palm pilot he received on

account of his prior position with the Company.




 




H.            Non-Disparagement.  The Company agrees that its directors,

senior officials and managers shall not knowingly vilify, disparage, slander,

or defame Employee.




 




I.              Confidentiality

Of Agreement.  Company agrees that

it will keep the terms and conditions of this Agreement strictly confidential

except that the Company may disclose the terms and conditions of this Agreement

to its advisors or as required by law.




 




4.             Employee Obligations.  As material inducement to Company in

entering into this Agreement and providing the consideration described in

Section 3, Employee hereby agrees as follows:




 




A.            Release.  Employee agrees to release all Employee’s

Claims, provided, however, that such release is not intended to apply to any

willful misconduct by Company of which Employee does not have present

knowledge.  Employee acknowledges that

the money and promises received and to be received by Employee under Sections 3

are in exchange for the release of Employee’s Claims.




 




B.            Covenant Not To

Sue.  Employee agrees that he will

not initiate any litigation to vindicate any rights he may have  had

if he had not released Employee’s Claims, except as may be necessary to enforce

this Agreement.  Further, Employee

agrees to pay Company’s attorneys fees if Employee breaches the covenant not to

sue contained in this Section 4.B.  




 




C.            Company Property.  Employee will return all property belonging

to Company to Company immediately upon the execution of this Agreement, whether

such property is currently on or off the premises of Company, including,

without limitation, any and all computer hardware or computer software.




 




D.            Confidentiality.  Employee reaffirms his obligations within

paragraphs 3.4, 3.5 and 3.6 of the Employment Agreement.




 




E.             Confidentiality

Of Agreement.  Employee agrees that

he will keep the terms and conditions of this Agreement strictly confidential

except that Employee may disclose the terms and conditions of this Agreement to

his spouse, attorney, tax preparer, government




 




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agencies, or as required by law. 

Employee agrees that in the event that Employee discloses any of the

terms of this Agreement, including the fact of payment other than as set forth

above, he shall be liable to Company as set forth in Section 4.G. of this

Agreement and for any and all injuries or damages sustained by Company

including costs, disbursements and attorneys’ fees incurred by Company as a

direct result of any violation of this paragraph.




 




F.             Non-Disparagement.  Employee agrees that after the term of his

employment with Company, he will not knowingly vilify, disparage, slander or

defame the Company, including Company’s business or business practices.




 




G.            Remedies.  Employee acknowledges that any breach of any

of the promises set forth in Sections 4.C., 4.D., 4.E., and 4.F. will cause

Company irreparable harm for which there is no adequate remedy at law and

Employee therefore consents to the issuance of any injunction in favor of

Company enjoining the breach of any of those promises by any court of competent

jurisdiction.  If any promise made by

Employee in this Section 4 should be held to be unenforceable because of its

scope or duration, or the area or subject matter covered thereby, Employee

agrees that the court making such determination shall have the power to reduce

or modify the scope, duration, subject matter or area of that promise to the

extent that allows the maximum scope, duration, subject matter or area

permitted by applicable law.  Employee

further agrees that the remedies provided for herein are in addition to, and

are not to be construed as replacements for, or a limitation of, rights and

remedies otherwise available to Company.




 




5.             Employee’s

Understandings.  Employee acknowledges

and represents that:




 




A.            Employee understands

that he has the right to consult with an attorney regarding the meaning and

effect of this Agreement.




 




B.            Employee also

understands that he has a period of twenty-one (21) calendar days from the date

on which he receives an unsigned copy of this Agreement in which to consider

whether or not to sign this Agreement and that, having been advised of that

entitlement, he may elect to sign this Agreement at any time prior to the

expiration of that time period.




 




C.            Employee understands

that he may rescind (that is, cancel) within seven (7) calendar days of signing

the Agreement the provisions of Section 4.A. of this Agreement with respect to

claims arising under the Age Discrimination in Employment Act (“ADEA Rescission

Period”) and that he may rescind within fifteen (15) calendar days of signing

the Agreement the provisions of Section 4.A. of this Agreement with respect to

claims arising under the Minnesota Human Rights Act (“MHRA Rescission Period”)

(collectively, “Rescission Periods”). 

To be effective, rescission must be in writing, delivered to Company at

Vital Images, Inc., 3300 Fernbrook Lane N., Suite 200, Plymouth, MN 55447,

within the applicable rescission period, or sent to Company, at such address,

by certified mail, return receipt requested, postmarked within the applicable

rescission period.




 




6.             Cancellation Of

Agreement By Company.  If Employee

exercises his right of rescission under Section 5C of this Agreement, Company

will have the right, exercisable by written notice




 




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delivered to Employee, to terminate this Agreement in its entirety in

which event Company will have no obligation whatsoever to Employee

hereunder.  If Employee exercises his

right of rescission under Section 5.C. of this Agreement, and Company does not

exercise its right to terminate this Agreement hereunder, the remaining

provisions of this Agreement (including specifically the remaining provisions

of Section 5 of this Agreement) shall remain valid and continue in full force

and effect.




 




7.             Performance By Employee and

Company.  Nothing contained herein

shall operate as a waiver or an election of remedies by either party should the

other party fail to perform any duty or obligation imposed upon them

hereunder.  Notwithstanding anything

contained herein to the contrary, this Agreement and the duties and obligations

hereunder shall continue in full force and effect irrespective of any violation

of any term or provision of this Agreement by Employee.




 




8.             No Admission Of Liability.  The parties agree that this Agreement shall

not be considered an admission of liability by Company.  Company expressly denies that it is in any

way liable to Employee or that it has engaged in any wrongdoing with respect to

Employee.




 




9.             Employee Acknowledgments.  Employee acknowledges and represents

that:  (a) he has read this Agreement

and understand its consequences; (b) he has received adequate opportunity to

read and consider this Agreement; (c) he has determined to execute this

Agreement of his own free will and acknowledges that he has not relied upon any

statements or explanations made by Company regarding this Agreement; and (d)

the promises of Company made in this Agreement constitute fair and adequate consideration

for the promises, releases and agreements made by Employee in this Agreement.




 




10.           Entire Agreement.  This Agreement, including any exhibits

attached hereto or documents expressly referred to herein, contains the entire

agreement between Company and Employee and supersedes and cancels any and all

other  prior  agreements, whether oral or in writing,

between Company and Employee with respect to the matters referred to herein.




 




11.           Governing Law.  This Agreement shall be construed and

enforced in accordance with the laws of the State of Minnesota.




 




12.           Effective Date.  This Agreement was originally offered to

Employee on or about February 21, 2002. 

Employee shall have until the close of business on March 14, 2002  to

accept this Agreement.  If Employee

desires to accept this Agreement, Employee shall execute the Agreement and

return the same to Company at the address set forth in Section 5.C.

hereof.  If Employee does not so accept

this Agreement, this Agreement, and the offer contained herein, shall be null

and void as of the close of business on March 14, 2002.




 




13.           Counterparts.  This Agreement may be executed in

counterparts with an executed counterpart to be delivered to the other

party.  Each such executed counterpart

shall be deemed an original but shall constitute one and the same

instrument.  For purposes of execution

of this Agreement, the parties agree a facsimile signature will be treated the

same as an original signature; however, the parties agree to provide one

another with original signatures after execution.




 




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  VITAL IMAGES,

  INC.


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

  Dated:


  	

  March 25, 2002


  	

   


  	

   


  	

  By:


  	

  /s/Douglas M.

  Pihl


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

  Its:


  	

  Chairman


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

  Dated:


  	

  March 14, 2002


  	

   


  	

   


  	

  /s/Albert Emola


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

  Albert Emola


  	

   


  





 




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