EXHIBIT 10.15


 


Severance Agreement
Dated August 1, 2005


Between the Company and
Bryan Lampropoulos


 


CONSULTING AGREEMENT AND
RELEASE OF ALL CLAIMS


 


THIS
CONSULTING AGREEMENT AND RELEASE OF ALL CLAIMS (the “Agreement”) is entered
into between Merit Medical Systems, Inc., a Utah corporation (“Employer”),
and Bryan Lampropoulos (“Consultant”) (together the “Parties”).


 


Definitions


 


Employer:  As used herein, the term “Employer” shall
mean and refer to Merit Medical Systems, Inc., a Utah corporation.


 


Affiliate:  As used herein, the term “Affiliate” shall
mean and refer to any officer, director, shareholder, employee, and/or agent of
Employer; and/or any subsidiary, division, or affiliate of Employer (including
without limitation any officer, director, shareholder, employee, and/or agent
of any such subsidiary, division, or affiliate); and/or any entity (including
without limitation any officer, director, shareholder, employee, and/or agent
of such entity) in which Employer owns, directly or indirectly, a legal or
beneficial interest (whether in whole or in part); and/or any individual or
entity (including without limitation any officer, director, shareholder,
employee, and/or agent of such entity) that owns, directly or indirectly, a
legal or beneficial interest (whether in whole or in part) in Employer.


 


Background


 


Employer
terminated Consultant’s employment, effective August 1, 2005 (the “Termination
Date”).  By this Agreement, and the sums
to be paid for the benefit of Consultant, 
the Parties intend to (1) enter into a consulting agreement
effective August 1, 2005 for a one-year term; and (2) to resolve any
and all disputes of any kind or character, if any, between them, including
without limitation any and all disputes arising from or related to Consultant’s
employment with Employer or any Affiliate, the termination of that employment,
or otherwise.  Accordingly, Employer and
Consultant hereby agree as follows:


 


Agreement


 


1.                                      Consulting
Services.  Employer desires to engage
Consultant to provide certain consulting services that pertain to Employer’s
international and OEM business, including without limitation, providing
pricing, customer information, customer introductions, marketing information,
and product configurations and any other related information reasonably
requested by Employer  (“Consulting
Services”).  Consultant agrees to be
available by telephone upon Employer’s reasonable request for the purpose of
transitioning the international and OEM business (“Professional Services”).  Consultant shall perform his obligations
hereunder as an independent contractor, and nothing contained herein shall be
deemed to create a relationship of employer-employee, master-servant, agency,
partnership or joint venture.  Consultant
shall have no authority to bind Employer to any agreements or other
commitments.  Consultant shall not,
explicitly or implicitly, give any appearance of having specific or apparent
authority to bind Employer to any agreements or other commitments.


 


2.                                      Term.  Consultant agrees to perform the Consulting
Services for a one-year period commencing August 1, 2005 until July 31,
2006 (“Term”).


 


3.                                      Payment to
Consultant.


 


a.               Employer shall pay Consultant the
total sum of Four Hundred Fifty Thousand Dollars ($450,000) during the Term (“Payment
Amount”), payable in 26 equal, bi-weekly installments in the amount of
$17,307.70.  The bi-weekly installments
shall commence on Employer’s first regular payroll date immediately following
the Termination Date and continuing thereafter until paid in full (the “Payout
Period”).  The Payment Amount shall be
calculated as follows:  In consideration
for the promises and covenants of Consultant under


 





















 


Sections 7, 8, 9, and 10,
Employer shall pay to Consultant $360,000. 
In consideration for Consulting Services under Section 1, Employer
shall pay Consultant $90,000.


 


b.               If Consultant properly elects
continuation coverage under Employer’s group medical and/or dental insurance
plan pursuant to Sections 601 through 607 of the Consultant Retirement Income
Security Act of 1974, as amended (“COBRA”), Employer will pay that portion of
the premium which Employer paid on behalf of Consultant and Consultant’s
enrolled family members prior to the Termination Date through the earlier of (a) August 31,
2007; (b) the date Consultant first becomes eligible for coverage under
any group health plan maintained by another employer of Consultant or his
spouse; or (c) the date such COBRA continuation coverage otherwise
terminates as to Consultant under the provisions of Employer’s group medical
insurance plan.  Nothing herein shall be
deemed to extend the otherwise applicable maximum period in which COBRA
continuation coverage is provided or supersede the plan provisions relating to
early termination of such COBRA continuation coverage.  Consultant agrees that his portion of the
premium for such coverage, if any, shall be deducted from the payments payable
to Consultant under Section 1.a. above.


 


c.               Payment of any monies to or on
behalf of Employer under this Section 3 shall be subject to all applicable
federal, state and local payroll withholding taxes.


 


d.               Consultant will not be reimbursed
for any expenses incurred in connection with the performance of this Agreement,
unless approved in advance and in writing by an authorized representative of Merit.


 


4.                                      Review and Revocation.  Consultant understands and agrees
that he has 21 days from the date he receives this Agreement to consider the
terms of and to sign this Agreement. 
Consultant understands that, at his sole and absolute discretion, he may
sign this Agreement prior to the expiration of the 21-day period.


 


Consultant
further acknowledges and understands that he may revoke this Agreement for a
period of up to 7 days after he signs it (not counting the day it was signed)
and that the Agreement shall not become effective or enforceable until the 7-day
revocation period has expired.  To revoke
this Agreement, Consultant must give written notice stating that he wishes to
revoke the Agreement to General Counsel, Merit Medical Systems, Inc., 1600
Merit Drive, South Jordan, UT 84095, Telefax: 801/208-4302.  If Consultant mails a notice of revocation to
Employer, it must be postmarked no later than 7 days following the date on
which he signed this Agreement (not counting the day it was signed) or such revocation
shall not be effective.


 


5.                                      Release of All Claims.  In consideration for the payments
stated in Section 3 and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Consultant, for
himself and his heirs, assigns, and all persons and entities claiming by,
through, or under him, hereby irrevocably, unconditionally, and completely
releases, discharges, and agrees to hold Employer and its Affiliates,
individually or in any combination thereof (hereinafter collectively referred
to as “Releasees”), harmless of and from any and all claims, liabilities,
charges, demands, grievances, and causes of action of any kind or nature
whatsoever, including without limitation claims for contribution, subrogation,
or indemnification, whether direct or indirect, liquidated or unliquidated,
known or unknown, which Consultant had, has, or may claim to have against
Releasees (hereinafter collectively referred to as “Claim(s)”).


 


The
release, discharge, and agreement to hold harmless set forth in this Section 5
includes without limitation any Claim(s) that Consultant has, had, or may claim
to have against Releasees (a) for wrongful termination or discharge,
negligent or intentional infliction of emotional distress, breach of express or
implied contract of employment, any other written or oral agreement of any type
or kind, or otherwise, breach of the covenant of good faith and fair dealing,
defamation, breach of privacy, whistleblowing, employment-related torts,
negligence, or personal injury (whether physical or mental); (b) for any
Claim(s) arising under federal or state law, including without limitation Title
VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the
Americans with Disabilities Act, the Age Discrimination in Employment Act, the
Utah Antidiscrimination Act, or any other federal, state, or local law
prohibiting discrimination or harassment on the basis of race, color, religion,
sex, age, national origin, disability, or any other protected group status; (c) for
any Claim(s) arising under the Consultant Retirement Income Security Act (“ERISA”),
(d) for any Claim(s) arising under the Family and Medical Leave Act or any
similar family, medical, school, or other leave law under any Utah state,
county, or city law or ordinance; (e) for any Claim(s) for attorney’s fees
or costs, and (f) for any other Claim(s) in any way related to or arising
out of Consultant’s employment with Employer or the termination of that
employment.


 


Nothing
in this Agreement waives Consultant’s rights, if any, to continue Consultant’s
participation in Employer’s group health insurance plan, as allowed by COBRA
and the terms, conditions, and limitations of the plan.


 


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6.                                      Full and Complete Release.  Consultant understands and agrees that he is
releasing and waiving Claim(s) that he does not know exist or may exist in his
favor at the time he signs this Agreement which, if known by him, would
materially affect his decision to sign this Agreement.  Nonetheless, for the purpose of implementing
a full and complete release and discharge of Releasees, Consultant expressly
acknowledges that the release set forth in Section 3 is intended to
include in its effect, without limitation, all Claim(s) which Consultant does
not know or suspect to exist in his favor and that the release set forth in Section 5
contemplates the extinguishment of any such Claim(s).


 


7.                                      Covenant of Confidentiality.  Consultant agrees that, as a
material term of this Agreement and to protect the goodwill, the Confidential
Information (as defined below), and the business of Employer, Consultant shall
not, from the date of this Agreement through the end of the Payout Period or at
any time thereafter, without the express, prior written consent of the
President of Employer: (i) ever reveal, disclose, furnish, make
accessible, or disseminate any of Employer’s Confidential Information or any
other matter concerning the business affairs of Employer or of any customer or
vendor of Employer or (ii) ever use or exploit any of Employer’s
Confidential Information or any other matter concerning the business affairs of
Employer or of any customer or vendor of Employer for the personal and/or
financial use, gain, or benefit of Consultant or of any other person or entity
or for any other purpose.


 


For
purposes of this Agreement, “Confidential Information” means individually or in
any combination thereof, all names, addresses, telephone numbers, contact
persons, and other identifying and confidential information about persons,
firms, corporations, and/or other entities that are or become customers,
accounts, licensors, vendors, and/or suppliers of goods or services to or of
Employer; customer lists; details of client or consultant contracts; details of
customer usage; non-public pricing policies; operational methods; marketing
plans or strategies; product and program developments and plans; research
projects; technology and technical processes; business acquisition plans;
personnel information and plans, including without limitation compensation and
contract terms; methods of production; inventions; improvements; designs;
original works of authorship; derivative works; formulas; processes;
compositions of matter; computer software and related information, including
without limitation programs, code, concepts, methods, routines, formulas,
algorithms, designs, specifications, architectures, or inventions embodied
therein, as well as all data, documentation, and copyrights related thereto;
patent applications; databases; mask works; trade secrets; know-how; ideas;
service marks; planned or proposed Website ideas and plans, including but not
limited to look and feel; and other intellectual property or proprietary
information rights and any and all rights, applications, extensions and
renewals in connection therewith (either proposed, filed, or in preparation for
filing); and financial information and general confidential business
information of the Employer.  Such
information is confidential and unique, not generally known in the industry,
and gives the Employer a competitive advantage and significantly enhances the
Employer’s goodwill.


 


Notwithstanding
the foregoing, Confidential Information excludes information not protected by
trademark, copyright, patent, or other similar state, federal, or worldwide
protection and that, through no fault of Consultant, is generally known to the
public, is generally employed in the medical device or equipment manufacturing
industry at or after the time Consultant first learns of such information, or
generic information or knowledge which the Consultant would have learned in the
course of similar employment or work elsewhere in the medical device or
equipment manufacturing industry; provided, however, that Consultant shall bear
the burden of proving that any information disclosed or used by Consultant does
not meet the definition of Confidential Information set forth above and/or that
the disclosure or use of Confidential Information occurred through no fault of
Consultant.


 


8.                                      Covenant Not to Provide Services / Solicit
Existing Customers. 
Consultant acknowledges the character of Employer’s business and the
substantial amount of time, money, and effort that Employer has spent and will
spend in recruitment of clients, customers, and/or accounts.  As a material term of this Agreement and to
protect the goodwill, the Confidential Information, and the business of
Employer, Consultant covenants that, from the date of this Agreement for a period
of two (2) years, Consultant shall not, anywhere in the United States,
either individually or on behalf of or with any person or entity, directly or
indirectly (a) provide services relating to the manufacture or sale of
medical devices or equipment of the type and kind manufactured and/or sold by
Employer to any individual or entity that was a customer, client, or account of
Employer at the time Consultant’s employment with Employer terminated or at any
time during two (2) year period immediately preceding such termination, (b) solicit
or otherwise attempt to sell medical devices or equipment of the type and kind
manufactured and/or sold by Employer to any individual or entity that was a
customer, client, or account of Employer at the time Consultant’s employment
with Employer terminated or at any time during the two (2) year period
immediately preceding such termination, (c) solicit or otherwise attempt
to sell medical devices or equipment of the type and kind manufactured and/or
sold by Employer to any individual or entity that was a prospective customer,
client, or account whose business Consultant solicited as a representative of
or on behalf of


 


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Employer or with whom
Consultant became acquainted or whose identity Consultant learned of as a
consequence of his employment with Employer within the six (6) month
period immediately preceding the termination of Consultant’s employment with
Employer, (d) solicit or otherwise deal with any clients, vendors, or
independent contractors of Employer in any manner designed to (or that
reasonably could) divert business from Employer, and/or (e) solicit or
otherwise induce any employee of Employer to terminate his/her employment with
Employer.


 


9.                                      Return of Goods to Employer.  Consultant covenants and represents
that he has returned to Employer all Confidential Information, the cellular
phone provided to him by Employer, all company credit cards, office keys, etc.
that he obtained or that were made available to him as a consequence of his
employment with Employer. 
Notwithstanding the foregoing, Consultant may retain the laptop computer
provided for his use by Employer after Employer has had the opportunity to
erase all Confidential Information or other matters Employer deems appropriate
from such laptop computer.


 


10.                               Limited Covenant Not to
Compete.  As a material term of this Agreement and to
protect the goodwill, the Confidential Information, and/or the business of
Employer, and Employer’s investment in the training and education of
Consultant, Consultant agrees that, during the “Covenant Period” (as defined
below), Consultant shall not, anywhere within the State of Utah, directly or
indirectly, either individually or on behalf of or with any person or entity: (i) compete
with or against Employer or engage in any aspect of the medical device industry
in competition with Employer; (ii) directly or indirectly own, manage,
operate, control, be employed by, or provide management or consulting services
to any person or entity (other than Employer or any affiliate of Employer) that
competes with, or is a competitor of, Employer (“Competing Entity”); (iii) discuss
the possibility of employment or other relationship with any Competing Entity; (iv) render
or provide any services to or for any Competing Entity; or (v) discuss or
otherwise deal with any client or vendor of Employer regarding the extent or
nature of the present or future business of any client or vendor with
Employer.  For purposes of this
Agreement, “Covenant Period” means the period beginning on the date of this
Agreement and continuing for two years (2) years.


 


11.                               Remedies.  In the event that Consultant fails to perform any obligations set forth
in Section 7  “Covenant of
Confidentiality,” Section 8 “Covenant Not to Provide Services / Solicit
Existing Customers,”  Section 10 “Limited
Covenant Not to Compete,” or Section 15 “Nondisparagement,” then
Consultant agrees that he will reimburse Employer for all amounts paid by
Employer.  The foregoing remedies are in
addition to other remedies that may be available to Employer under law.


 


12.                               Resignation as Officer.  Consultant hereby resigns as an
officer of Employer or any Affiliate, effective August 1, 2005.


 


13.                               Wages and Commissions Paid in Full.  Except as specifically set forth in Section 1
above, Consultant acknowledges that he has received all monies due and owing to
Consultant from Employer, including without limitation any monies due and owing
to Consultant for wages, accrued but unused vacation benefits, commissions, or
otherwise and that he has no claim against Employer whatsoever for the payment
of any further wages, commissions, vacation benefits, or other monies except as
specifically set forth in Section 1. 
Consultant acknowledges and agrees that he shall not be eligible for
vacation, sick leave, retirement, life insurance, disability insurance, worker’s
compensation, or any other benefit that is or may become available to employees
of Employer.


 


14.                               Agreement Confidential.  This Agreement is confidential
information owned by Employer.  Consultant
agrees that he shall not disclose the terms of this Agreement except to the
extent required by law.  Notwithstanding
the foregoing, Consultant may disclose the terms of this Agreement to his
spouse, attorney, and/or tax advisor.  If
Consultant discloses the terms of this Agreement to his spouse, attorney,
and/or tax advisor, he will advise such person that, as a condition of such
disclosure, they must not disclose the terms of this Agreement except to the
extent required by law.  Consultant
acknowledges that Employer may be legally required to disclose the terms of
this Agreement.


 


15.                               Nondisparagement.  Consultant covenants that, as an agreed
on material term of this Agreement, he will not make any disparaging remarks
about Employer, or any director, officer, or employee of Employer, and shall
refrain from saying or doing anything that could in any way hold Employer or
any director, officer, or employee of Employer up to disrepute in the eyes of
any other person or entity or that could in any way interfere with Employer’s
current or future business plans or activities.


 


16.                               Not an Admission.  This Agreement does not constitute an
admission by Releasees, and Releasees specifically deny, that Releasees have
violated any contract, law, or regulation or that they, it, or s/he


 


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has discriminated against
Consultant or otherwise infringed on Consultant’s rights and privileges or done
any other wrongful act.


 


17.                               Severability.  If a court of competent jurisdiction shall
find that the provisions of Sections 5,7,8 and 10 of this Agreement are
unenforceable, whether in whole or in part, then Employer shall have the right,
at its sole option and to the extent allowed by applicable law, to rescind this
Agreement and to cease any payments due and/or to recover from Consultant all
sums paid by Employer to Consultant under Section 1 of this
Agreement.  Except as set forth in the
immediately preceding sentence, if any part of this Agreement is found to be
unenforceable, the other provisions shall remain fully valid and
enforceable.  It is the intention and
agreement of the parties that all of the terms and conditions hereof be
enforced to the fullest extent permitted by law.


 


18.                               Entire Agreement.  This Agreement constitutes the entire
integrated understanding between the parties regarding the subject matter
hereof and supersedes all negotiations, representations, prior discussions, and
preliminary agreements between the parties with respect to the subject matter
hereof.  No promise, representation,
warranty, or covenant not included in this Agreement has been or is relied upon
by either party.  Notwithstanding any
statute or case law to the contrary, this Agreement may not be modified except
by a written instrument signed by each of the parties, whether or not such
modification is supported by separate consideration.


 


19.                               Governing Law.  Notwithstanding any conflict of laws
provisions to the contrary, this Agreement shall be governed by the laws of the
State of Utah, and each party hereby expressly submits itself or himself to the
exclusive, personal jurisdiction of the courts situate in the State of Utah
with respect to any and all claims, demands, and/or causes of action asserted
or filed by any party in any way relating to, or arising out of, this Agreement
or the subject matter hereof.


 


20.                               Waiver.  Any waiver by any party hereto of any breach
of any kind or character whatsoever by any other party, whether such waiver be
direct or implied, shall not be construed as a continuing waiver of, or consent
to, any subsequent breach of this Agreement on the part of the other
party.  In addition, no course of dealing
between the parties, nor any delay in exercising any rights or remedies
hereunder or otherwise, shall operate as a waiver of any of the rights or
remedies of the parties.


 


21.                               Binding Nature.  This Agreement shall inure to and
bind the heirs, devisees, executors, administrators, personal representatives,
successors, and assigns (as applicable) of the respective parties hereto.


 


22.                               Headings.  The headings contained in this Agreement are
for ease of reference only and shall not limit or otherwise affect the
interpretation of this Agreement


 


23.                               Entire Agreement.  This Agreement contains the entire
integrated understanding of the parties with respect to the subject matter of
this Agreement and shall not be modified other than by an instrument in writing
signed by both Employer and Consultant.


 


24.                               Attorney’s Fees.  If a civil action or other proceeding is
brought to enforce this Agreement, the prevailing party shall be entitled to
recover reasonable attorney’s fees, costs, and expenses incurred, in addition
to any other relief to which such party may be entitled.


 


25.                               Knowing and Voluntary Execution.  Consultant acknowledges that he has read this
Agreement carefully and fully understands the meaning of the terms of this
Agreement.  Consultant acknowledges that
he has signed this Agreement voluntarily and of his own free will and that he
is knowingly and voluntarily releasing and waiving all Claim(s) that he has or
may have against Releasees.  Consultant further acknowledges that he has been
advised, by this Agreement, to consult with an attorney of his choice prior to
signing this Agreement.  Each
party agrees that he or it shall be solely responsible for any attorney’s fees
incurred by that party in the negotiation and execution of this Agreement.


 


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  “EMPLOYEE”

  
	
   

  
	
  DATED:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Bryan
  Lampropoulos

  
	
   

  	
   

  
	
   

  	
  “EMPLOYER”

  
	
   

  	
   

  
	
   

  	
  Merit Medical Systems, Inc.,

  
	
   

  	
    a
  Utah corporation,

  
	
   

  	
   

  
	
  DATED:

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
  Its:

  	
   

  	
   

  	
   

  
										



 


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