Exhibit
10.1


 


SEPARATION
AGREEMENT


 


THIS SEPARATION AGREEMENT (the “Agreement”), is made as of this 11th
day of September, 2008 (the “Effective Date”) by and between Vital Images, Inc.,
a Minnesota corporation (the “Company”) and Susan A. Wood, Ph.D. (the “Executive”).


 


BACKGROUND


 


1.             The
Company and Executive have entered into an Employment Agreement dated September 8,
2005 (the “Employment Agreement”), and a Change in Control Agreement dated September 8,
2005 (the “Change in Control Agreement”).


 


2.             The
Company and Executive have entered into various agreements regarding stock
options and restricted stock.  These
agreements are the following: Non-Statutory Stock Option Agreement dated September 8,
2005; Restricted Stock Award Agreement dated September 8, 2005;
Non-Statutory Stock Option Agreement dated March 9, 2006; Non-Statutory
Stock Option Agreement dated February 2, 2007; Restricted Stock Award
Agreement dated February 28, 2007; and Non-Statutory Stock Option
Agreement dated March 11, 2008.


 


All shares underlying options exercisable by
Executive as of the Termination Date pursuant to the option agreements shall be
referred to as Executive’s “Options” and all shares of restricted stock that
have been granted to Executive pursuant to the restricted stock agreements and
have vested as of the Termination Date shall be referred to as Executive’s “Restricted
Stock.”  The agreements regarding Options
shall collectively be referred to as the “Option Agreements,” and the
agreements regarding Restricted Stock shall collectively be referred to as the “Restricted
Stock Agreements.”  With the exception of
the March 11, 2008 Option Agreement, which was entered into pursuant to
and are governed by the Company’s 2006 Long-Term Incentive Plan (the “2006 Plan”),
all Option Agreements and Restricted Stock Agreements were entered into
pursuant to and are governed by the Company’s 1997 Stock Option and Incentive
Plan (the “1997 Plan”).


 


3.             The
Company and Executive have decided to terminate Executive’s employment with the
Company as of December 4, 2008 (the “Termination Date”).


 


4.             The
Company and Executive desire to resolve all present and potential issues
between them relating to Executive’s employment and termination of Executive’s
employment, and have agreed to a full resolution of any such issues as set
forth in this Agreement.


 


NOW THEREFORE, in consideration of the mutual promises and provisions
contained in this Agreement and in the Release referred to below, the parties,
intending to be legally bound, agree as follows:


 

















 


AGREEMENT


 


1.             Termination
of Employment. Executive’s employment with the Company shall terminate as
of the Termination Date. On the Termination Date, Executive shall cease to be
an employee of the Company without further action by either party.  For purposes of this Agreement “Executive”
shall mean the undersigned Executive and anyone who has obtained any legal
rights or claims through her, and “Company” shall mean Vital Images, Inc.,
its parent company, their subsidiaries, successors and assigns, their
affiliated and predecessor companies, their successors and assigns, their
affiliated and predecessor companies and the present or former directors,
officers, officers, employees, representatives and agents (including, without
limitation, its 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 employees or
former employees of Company, in their official or individual capacities.


 


2.             Earned
Compensation. The Company shall pay Executive all earned base salary
through the Termination Date, as well as the amount accrued for Executive’s
vacation time through the Termination Date. 
Executive will continue to participate in all Executive benefit plans in
which she is currently a participant, in accordance with the terms of such
plans, through the Termination Date.


 


3.             Executive’s
Options and Restricted Stock. All vesting or exercise rights, limitations,
restrictions or other terms or conditions related to Executive’s Options and
Restricted Stock shall remain subject to and governed by the respective
agreements and the 1997 Plan and the 2006 Plan, except that Article 9 of
the Option Agreements and Article 3(d) of the Restricted Stock
Agreements shall be deleted and of no effect as of the Termination Date.


 


4.             Company’s Obligations and Separation
Agreements.  In consideration for
Executive’s promises contained herein, specifically including, but not limited
to, Executive’s Obligations as set forth in Paragraph 5, Company agrees to
provide Executive with the following benefits:


 


A.    The Company will pay Executive severance pay in the
amount of $185,050.  The severance pay
will be paid in a lump sum on the Company’s first regular payroll date after
the expiration of any applicable rescission periods, as set forth in Paragraph 7.  All payments shall be subject to applicable
taxes and withholding.


 


B.    Executive,
pursuant to federal and state law, may, for a period of eighteen (18) months
following the Termination Date (“COBRA Period”), continue the group medical and
dental insurance coverage previously provided to Executive by Company.  Executive will be required to pay the entire
premium for such benefits for any portion of the COBRA Period that Executive
elects to continue COBRA coverage.


 


C.    Non-Disparagement.  Company agrees that it shall not disparage or
defame Executive in any respect.


 


D.    Indemnification.  Company agrees that Executive shall remain
covered under the terms of the Company’s directors and officers insurance
policies for actions arising through the Termination Date.


 


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E.     Company
shall allow Executive to retain the laptop computer, cell phone and cell phone
number issued by or through the Company to Executive; however, Executive shall
remove or destroy any Company property or information identified by the Company
contained on the laptop computer and cell phone no later than the date of this
Agreement, to the satisfaction of the Company. 
For such purpose, on the date this Agreement is signed by Executive,
Executive shall give access to Company to the laptop computer and cell
phone.  Cell phone expenses after the
Termination Date will be the full responsibility of Executive.


 


5.             Executive’s
Obligations.  As material inducement
to Company in entering into this Agreement and providing the consideration
described in Paragraph 4, Executive hereby agrees as follows:


 


A.    General
Release of Claims. Executive knowingly and voluntarily releases and forever
discharges Company, to the full extent permitted by law, of and from any and
all claims, known and unknown, asserted and unasserted, Executive have or may
have against Company as of the date the Executive signs this Agreement,
including, but not limited to:


 


i.      All claims arising out of or
relating to Executive’s employment with Company and the termination of
Executive’s employment; and


 


ii.     All
claims arising out of or relating to statements, actions, or alleged omissions
of Company; and


 


iii.    All claims for any alleged
unlawful discrimination, harassment, retaliation or reprisal or any other
alleged unlawful practices arising under any federal, state, or local statute,
ordinance, or regulation, including without limitation claims under Title VII
of the Civil Rights Act of 1964, as amended; the Americans with Disabilities
Act, 42 U.S.C. sec. 1981; the Sarbanes-Oxley Act of 2002; the Employee
Retirement Income Security Act of 1974; the Equal Pay Act; the Immigration
Reform and Control Act; the Worker Adjustment and Retraining Notification Act;
the O.C.G.A. and its counterparts; the Fair Credit Reporting Act; and state and
local human rights acts;


 


iv.    All claims for alleged
wrongful discharge; breach of contract; breach of implied contract; breach of a
covenant of good faith and fair dealing; breach of fiduciary duty; estoppel;
Executive’s activities, if any, as a “whistleblower;” defamation; infliction of
emotional distress; fraud; misrepresentation; negligence; harassment; retaliation
or reprisal; constructive discharge; assault; batter; false imprisonment;
invasions of privacy; interference with contractual or business relationships;
any other wrongful employment practices or violation of any common law; and


 


v.     All claims for compensation
of any kind, including without limitation, bonuses, commissions, vacation pay,
and expense reimbursements; and


 


vi.    All claims for back pay, front
pay, reinstatement, other equitable relief, compensatory damages, damages for
alleged personal injury, liquidated damages, and punitive damages; and


 


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vii.   All claims for attorney’s fees,
costs and interest.


 


However, by
signing this Agreement Executive does not waive any claims that may arise after
the date on which Executive signs this Agreement,  the right to take legal action to enforce the
terms of this Agreement, or any claims that the law does not allow Executive to
waive in a private agreement such as this, 
including, without limitation, the right to file a charge with or
participate in any investigation conducted by the Equal Employment Opportunity
Commission (“EEOC”) or any state or local human rights agency.  Executive agrees to waive, however, her right
to any monetary recovery should the EEOC or any state or local human rights
agency pursue any claims on Executive’s behalf in a private agreement such as
this.


 


Should
Executive bring any claims against Company, Executive agrees to immediately
return all payments made to Executive under Paragraph 4 of this Agreement,
other than the payments provided in exchange for the release of claims under
the ADEA.  Executive further agrees that
if Executive fails to do so, the payments made in Paragraph 4 of this
Agreement, other than those provided in exchange for the release of claims
under the ADEA, may be offset against any payments that Company is ordered by a
court or administrative agency to make to Executive.


 


B.    Covenant
Not To Sue.  Executive agrees that she
will not initiate any litigation to pursue claims which Executive released in
this Paragraph 5.  This covenant does not
apply to litigation challenging the validity of this Paragraph 5.  Further, Executive agrees to pay Company’s
attorney’s fees if Executive breaches the covenant not to sue contained in this
Section 5.B.


 


C.    Company Property.  Subject to Section 4.E of this
Agreement, Executive will return all property belonging to Company no later
than two weeks after the Termination Date, whether such property is currently
on or off the premises of Company, including, without limitation, any and all
computer hardware or computer software. 
The company will turn off access to the Company network on the
Termination Date.


 


D.    Confidentiality
and Loyalty.  Executive acknowledges
and reaffirms her continuing obligations to Company regarding confidentiality
and loyalty pursuant to the Employment Agreement and as exist by operation of
law.  Executive also agrees not to
disclose the terms and conditions of this Agreement, except the provisions of
this Section D and Paragraph 6, other than to Executive’s spouse or
significant other, attorneys, tax preparer, and other individuals or entities
that need to know the terms and conditions to provide services on Executive’s
behalf or as required by law.


 


E.     Non-Disparagement.  Executive agrees that she shall not disparage
or defame Company in any respect.


 


F.     Expense
Reimbursement.  Executive shall have
sixty (60) days from the Termination Date to submit Executive’s last expense
report.  Company reserves its right to
review and deny payment on any expenses submitted by Executive that do not
comply with Company policies and procedures regarding expense reimbursement.


 


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G.    Bring-down
Release.  Executive agrees to provide
a “bring down” release in the form attached hereto as Schedule A and
incorporated herein by this reference. 
This bring-down release will be signed by Executive on the Termination
Date, except in the event of her death or disability prior to the Termination
Date.  Executive acknowledges that the
money and benefits  received and to be
received by Executive by entering into this Agreement are beyond what Executive
would receive if she did not enter into the Agreement and  that they are provided by Company  in exchange for the releases and agreements
provided by Executive herein and in Schedule A.


 


H.    Transition
Services. Executive agrees to perform the regular duties of her position
through the Termination Date, provided that Company agrees that Executive may
perform such duties remotely, so long as Executive is present in person at all
reasonably required headquarters events and is able to participate fully in all
other company activities. Executive acknowledges that Executive’s agreement to
perform the transition services is a material inducement for the Company to
enter into this Agreement and provide the benefits set forth herein.


 


I.      Remedies.  Executive acknowledges that any breach of any
of the promises set forth in this Paragraph 5 or Section 6 will cause
Company irreparable harm for which there is no adequate remedy at law and
Executive therefore consents to the issuance by any court of competent
jurisdiction of any injunction in favor of Company enjoining the breach of any
of those promises.  If any promise made
by Executive in this Paragraph 5 or Paragraph 6 should be held to be
unenforceable because of its scope or duration, or the area or subject matter
covered thereby, Executive 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.  Executive 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.


 


6.             Non-Compete Restrictions. 
In exchange for the Company’s agreements, covenants and promises set
forth in this Agreement, which Executive acknowledges are adequate
consideration for her obligations in this Paragraph 6, Executive agrees that
Executive shall not, directly or indirectly, on behalf of herself or a third
party, do any of the following:


 


1.     For a period of six (6) months from the date of Executive’s
termination of employment with the Company, irrespective of the reasons for
termination, Executive shall not, directly or indirectly, and regardless of whether
Executive is acting as owner, partner, stockholder, employee, broker, agent,
principal, trustee, corporate officer, director, consultant or in any other
capacity, (1) develop, market, or
distribute any products competitive with the Company’s products, with
the exception of computer-aided detection or computer-aided diagnosis products, or (2) provide services for any person or
entity that is developing, marketing or distributing products competitive with
the Company’s products, with the exception of computer-aided detection
or computer-aided diagnosis products, provided,
however, that this Agreement will not prevent Executive from holding for
passive investment purposes up to 1% of any class of stock or other securities
of a publicly held company with 


 


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products that
are competitive with the Company’s products. 
The term “employment” for purposes of this Paragraph 6 means to enter into an
arrangement for services as a full-time or part-time employee, independent
contractor, agent or otherwise. Executive and the Company agree that this
provision is reasonably enforced as to any geographic area in which the Company
conducts its business.  For the purposes of this agreement,
computer-aided detection or computer-aided diagnosis (CAD) refers to
sophisticated pattern recognition software that identifies and analyzes
features on medical images and brings the information to the attention of users
of medical software either in a first, second or concurrent reading paradigm;
and


 


2.     For a period of eighteen (18) months from the Termination
Date,
solicit the business of, or have contact with for the purpose of doing business
with, any person,
firm, corporation or other entity who is or who was a customer or account of
Company or any of Company’s affiliates and subsidiaries while Employee was
employed by Company, including but not limited to resellers or distributors,
including Toshiba Medical and McKesson, of Company products or services, or
accept business from any person, firm, corporation or other entity who is or
who was a customer or account of Company or any of Company’s affiliates and
subsidiaries while Executive was employed by Company, for the purpose of
selling to such customer or account any Competitive Product or Service, with
the exception of computer-aided detection or computer-aided diagnosis products
(as defined above) in 6.1; and


 


3.        For a period of eighteen (18) months from the Termination
Date,
induce or seek to
induce any person employed with Company or its affiliates as of the Separation
Date to discontinue that person’s employment with Company and/or solicit,
recruit, hire or participate in any other person’s or entity’s effort to hire
an employee of Company.


 


4.     The
payments described in Sections 4A are contingent upon Executive strictly
complying with the terms of Sections 5 and 6. 
Should Executive breach any provision of Paragraph 5 or 6, the Company
shall be permitted to cease making payments under Sections 4A, and Executive
shall return all such payments previously made. 
Notwithstanding the cessation of payments pursuant to this Section 6.4,
Executive’s obligations under Paragraphs 5 and 6 shall continue for the
duration of the covenants therein. 
Nothing herein shall be construed as prohibiting the Company from
pursuing any other legal or equitable remedies that may be available to it for
any such breach or threatened breach.


 


7.             Executive’s
Understandings. Executive acknowledges and represents that:


 


A.    Executive
understands that she has the right to consult with an attorney regarding the
meaning and effect of this Agreement and is hereby advised by the Company to do
so.


 


B.    Executive
also understands that she has  twenty-one
(21) calendar days from the date on which she receives an unsigned copy of this
Agreement in which to consider whether or not to sign this Agreement. Executive
further understands that she need 


 


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not use the
full twenty-one (21) calendar days, and that if she signs this Agreement before
the expiration of the twenty-one (21) day period she does so voluntarily and of
her own free will.  Executive agrees that
the date on which she received this Agreement is accurately reflected in
Paragraph 15 of this Agreement.


 


C.    Executive
understands that she may rescind (that is, cancel) within seven (7) calendar
days of signing the Agreement and the Bring-Down Release with respect to claims
arising under the Age Discrimination in Employment Act (“ADEA Rescission Period”)
and that she may rescind within fifteen (15) calendar days of signing the Agreement
or the Bring-Down Release, as applicable, with respect to claims arising under
the Minnesota Human Rights Act (“MHRA Rescission Period”) (collectively, “Rescission
Periods”).  To be effective, the
rescission must be in writing, delivered to Company at 5850 Opus Parkway, Suite 300,
Minnetonka, MN 55343-4414 ATTN: Vice President, Human Resources, within the
applicable rescission period, or sent to Company, at such address, by certified
mail, return receipt requested, postmarked within the applicable rescission
period.


 


8.             Cancellation
of Agreement By Company.  If
Executive exercises her right of rescission under Paragraph 7.C. of this
Agreement, Company will have the right, exercisable by written notice delivered
to Executive, to terminate this Agreement in its entirety, in which event
Company will have no obligation whatsoever to Executive hereunder.  If Executive exercises her right of
rescission under Paragraph 7.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 Paragraph 5 and Paragraph 6 of this Agreement) shall remain valid and
continue in full force and effect.


 


9.             Performance
By Executive.  Nothing contained
herein shall operate as a waiver or an election of remedies by Company should
Executive fail to perform any duty or obligation imposed upon her
hereunder.  Notwithstanding anything
contained herein to the contrary, this Agreement and the duties and obligations
of Executive hereunder shall continue in full force and effect irrespective of
any violation of any term or provision of this Agreement by Executive.


 


10.           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 Executive or that it has engaged in any wrongdoing
with respect to Executive.


 


11.           Executive’s
Acknowledgments.  Executive
acknowledges and represents that:  (a) she
has read this Agreement and understands its consequences; (b) she has
received adequate opportunity to read and consider this Agreement; (c) she
has received adequate opportunity to consult an attorney regarding this
Agreement, and either has consulted an attorney or decided of her own free will
not to consult an attorney; (d) she has determined to execute this
Agreement of her own free will and acknowledges that she has not relied upon
any statements or explanations made by Company regarding this Agreement; (e) the
promises of Company made in this Agreement constitute fair and adequate
consideration for the promises, releases and agreements made by Executive in
this Agreement and Schedule A; (f) she is the legal party in interest in
this Agreement, with legal title to all rights and claims asserted and hereby
released; and (g) she has not filed for bankruptcy or assigned or
transferred any rights against Company to any other person or entity.


 


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12.           Entire
Agreement.  Except with regard to the
Option Agreements and the Restricted Stock Agreements, as such as governed by
the 1997 Plan and the 2006 Plan, as the case may be, and as modified herein,
and Paragraphs 3.4, 3.5, 3.6, 3.8, 4.5 and 4.6 of the Employment Agreement,
this Agreement contains the entire agreement between Company and Executive and
supersedes and cancels any and all other agreements, including the Change in
Control Agreement and any other agreement, whether oral or in writing, between
Company and Executive with respect to Executive’s employment with the Company,
the termination of Executive’s employment and the subject matter referred to
herein.


 


13.           Invalidity
and Severability.  The invalidity or
unenforceability of any particular provision of this Agreement shall not affect
the enforceability of other provisions hereof, and this Agreement shall be
construed in all respects as if such invalid or unenforceable provisions were
omitted.  If a court determines any part
of this Agreement to be invalid, it may modify that part to make it valid and
enforceable and to carry out the parties’ intentions to the fullest extent
permitted by law.  A court interpreting
this Agreement shall not construe it against either party, including the party
that drafted it.


 


14.           Governing
Law.  This Agreement shall be
construed and enforced in accordance with the laws of the State of Minnesota.
All actions regarding this Agreement shall be brought in a state or federal
court in the State of Minnesota.


 


15.           Notices.
All notices required or permitted to be given under this Agreement shall be
given by certified mail, return receipt requested, to the parties at the
following addresses or to such other addresses as either may designate in
writing to the other party:


 


	
   

  	
  If to Company:

  	
  Vital Images, Inc.

  
	
   

  	
   

  	
  5850 Opus Parkway

  
	
   

  	
   

  	
  Suite 300

  
	
   

  	
   

  	
  Minnetonka, MN 55343-4414

  
	
   

  	
   

  	
  Attention: General Counsel

  
	
   

  	
   

  	
   

  
	
   

  	
  If to Executive:

  	
  Susan A. Wood, Ph.D.

  
	
   

  	
   

  	
  4804 Sunnyside Road

  
	
   

  	
   

  	
  Edina, MN 55424

  



 


16.           Effective
Date.  This Agreement was provided to
Executive on August 11, 2008.  If
Executive desires to accept this Agreement, Executive shall execute the
Agreement and return the same to Company at the address set forth in Paragraph
15.


 


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17.           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.


 


IN WITNESS WHEREOF, the parties have executed this Agreement the date
and year first above written.


 


	
   

  	
   

  	
  VITAL IMAGES, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  September 11, 2008 

  	
   

  	
  By

  	
  /s/ Michael H. Carrel

  
	
  Dated: 

  	
   

  	
  Michael H. Carrel

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Its:

  	
  President and Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
  September 11, 2008 

  	
   

  	
  /s/ Susan A. Wood

  
	
  Dated: 

  	
   

  	
  Susan A. Wood, Ph.D.

  



 


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Schedule A


 


Executive’s “Bring-down”
Release


 


This Bring-down Release Agreement is entered into as of                   ,
2008 by Susan A. Wood, Ph.D., a resident of the State of Minnesota (“Executive”).


 


1.             Definitions.  We intend all words used in this Bring-down
Release to have their plain meanings in ordinary English.  Specific terms we use in this Bring-down
Release have the following meanings:


 


A.            Executive, as
used herein, shall include the undersigned Executive and anyone who has
obtained any legal rights or claims through the undersigned Executive.


 


B.            Company, as
used herein, shall at all times mean Vital Images, Inc., its parent
company, its subsidiaries, successors and assigns, their affiliated and
predecessor companies, their successors and assigns, their affiliated and
predecessor companies and the present or former directors, officers,
Executives, 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 employees or former employees
of Company, in their official or individual capacities.


 


C.            Executive’s Claims,
as used herein, means all of the rights Executive, has on or prior to the date
hereof, to any relief of any kind from Company, whether or not Executive now
knows about those rights, arising out of or relating to Executive’s employment
with Company and the termination of Executive’s employment; all claims arising
out of or relating to statements, actions, or alleged omissions of Company; all
claims for any alleged unlawful discrimination, harassment, retaliation or
reprisal or any other alleged unlawful practices arising under any federal,
state, or local statute, ordinance, or regulation, including without limitation
claims under Title VII of the Civil Rights Act of 1964, as amended; the Americans
with Disabilities Act, 42 U.S.C. sec. 1981; the Sarbanes-Oxley Act of 2002; the
Employee Retirement Income Security Act of 1974; the Equal Pay Act; the
Immigration Reform and Control Act; the Worker Adjustment and Retraining
Notification Act; the O.C.G.A. and its counterparts; the Fair Credit Reporting
Act; state and local human rights acts; 
all claims for alleged wrongful discharge; breach of contract; breach of
implied contract; breach of a covenant of good faith and fair dealing; breach
of fiduciary duty; estoppel; Executive’s activities, if any, as a “whistleblower;”
defamation; infliction of emotional distress; fraud; misrepresentation;
negligence; harassment; retaliation or reprisal; constructive discharge;
assault; battery; false imprisonment; invasion of privacy; interference with
contractual or business relationships; any other wrongful employment practices
or violation of any common law; all claims for compensation of any kind,
including without limitation, bonuses, commissions, vacation pay, and expense
reimbursements; all claims for back pay, front pay, reinstatement, other
equitable relief, compensatory damages, damages for alleged personal injury,
liquidated damages, and punitive damages; and all claims for attorney’s 


 


10

















 


fees, costs and interest; and any other claims for unlawful employment
practices arising on or prior to the date hereof; provided, however, that the
term “Executive’s Claims” shall in no event include Executive’s rights to
receive the payments, benefits and continuing protections provided under the (date
signed) Separation Agreement between Executive and Company.


 


2.             Executive’s
Obligations.  As material inducement
to Company in entering into the Separation Agreement, and specifically in
consideration for the payments and benefits, as set forth in more detail in the
Separation Agreement, Executive hereby agrees as follows:


 


A.            Release.  Executive agrees to release all Executive’s
Claims.  However, by signing this
Bring-down Release Executive does not waive any claims that may arise after the
date on which Executive signs this Bring-down Release,  the right to take legal action to enforce the
terms of this Bring-down Release, or any claims that the law does not allow
Executive to waive in a private agreement such as this, including, without
limitation, the right to file a charge with or participate in any investigation
conducted by the Equal Employment Opportunity Commission (“EEOC”) or any state
or local human rights agency.  Executive
agrees to waive, however, her right to any monetary recovery should the EEOC or
any state or local human rights agency pursue any claims on Executive’s behalf.


 


B.            Covenant Not To Sue.  Executive agrees that she will not initiate
any litigation to pursue claims which Executive released in Section 2.A.  This covenant does not apply to any
litigation challenging the validity of this Section 2.  Further, Executive agrees to pay Company’s
attorneys’ fees if Executive breaches the covenant not to sue contained in this
Section 2.B.


 


3.             Executive’s
Understandings.  Executive
acknowledges and represents that:


 


A.            Executive has the right to
consult with an attorney regarding the meaning and effect of this Bring-down
Release and is hereby advised by the Company to do so.


 


B.            Executive acknowledges that she
was offered a period of twenty-one (21) calendar days from the date on which she
received an unsigned copy of this Bring-down Release in which to consider
whether or not to sign this Bring-down Release and that, having been advised of
that entitlement, such period has expired.


 


C.            Executive may rescind (that is,
cancel) within seven (7) calendar days of signing the Bring-down Release,
the provisions of Section 2.A. of this Bring-down Release with respect to
claims arising under the Age Discrimination in Employment Act (“ADEA Rescission
Period”) and that she may rescind within fifteen (15) calendar days of signing
the Bring-down Release the provisions of Section 2.A. of this Bring-down
Release 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 5850 Opus Parkway, Suite 300, Minnetonka,
MN  55343, ATTN:  Vice President, Human Resources, within the
applicable Rescission 


 


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Period, or sent to Company, at such address, by certified mail, return
receipt requested, postmarked within the applicable Rescission Period.


 


4.             Executive’s
Acknowledgements.   Executive
acknowledges and represents that:  (a) she
has read this Agreement and understands its consequences; (b) she has
received adequate opportunity to read and consider this Agreement; (c) she
has received adequate opportunity to consult an attorney regarding this
Agreement, and either has consulted an attorney or decided of her own free will
not to consult an attorney; (d) she has determined to execute this
Agreement of her own free will and acknowledges that she has not relied upon
any statements or explanations made by Company regarding this Agreement;  (e) the promises of Company made in this
Bring-down Release constitute fair and adequate consideration for the promises,
releases and agreements made by Executive in this Bring-down Release and the
(date signed) Agreement between Executive and Company,  (f) she is the legal party in interest
in this Agreement, with legal title to all rights and claims asserted and
hereby released; and (g) she has not filed for bankruptcy or assigned or
transferred any rights against Employer to any other person or entity.


 


5.             Governing
Law.  This Bring-down Release shall
be construed and enforced in accordance with the laws of the State of
Minnesota.  All actions regarding this
Bring-down Release shall be brought in a state or federal court within the
State of Minnesota.


 


6.             Effective
Date.  This Bring-down Release shall
be effective upon the date set forth below.


 


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Susan A. Wood, Ph.D.

  



 


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