Attached files
| file | filename |
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| 8-K - CURRENT REPORT - SANUWAVE Health, Inc. | snwv_8k.htm |
| EX-99.1 - PRESS RELEASE - SANUWAVE Health, Inc. | snwv_ex991.htm |
Exhibit 10.1
SEPARATION AGREEMENT AND GENERAL RELEASE
Shri
Parikh (“You” or “you”) and SANUWAVE
Health, Inc. (the “Company”) (collectively, the
“Parties”) have agreed to enter into this Separation
Agreement and General Release (the “Agreement”) as of
May 14 , 2020 (the
“Effective Date”) on the following terms:
Your
employment with the Company shall terminate effective June
30, 2020 or such
earlier date as mutually agreed by you and the Company (the
“Separation Date”).
To
bring a smooth closure to your relationship with the Company, and
to resolve all disputes between the Parties, the Company is
offering you severance benefits in exchange for a general release
of claims.
Accordingly,
you and the Company incorporate the above recitals into this
Agreement, and agree as follows:
1. Your
employment with the Company shall terminate effective on the
Separation Date. Until the Separation Date, you shall continue to
receive your base salary, less all relevant taxes and withholdings,
which shall be paid in accordance with the Company’s normal
payroll procedures, as well as be entitled to continue to
participate in the Company’s group medical plans. The
Company’s website will continue to reflect that you are the
President of the Company until the Effective Date. For the period
between the Effective Date and the Separation Date, (i) any
substantive communications regarding the Company’s business
that you have with Company contacts (including customers, potential
customers, employees, board members, advisors and investors) shall
require pre-approval by the Company’s Chief Executive Officer
or Chief Financial Officer, and (ii) you shall have no authority to
act on behalf of or otherwise bind the Company in any
manner.
2.
Subject to your compliance with your promises and agreements
contained in this Agreement, and provided you do not revoke this
Agreement, the Company agrees to pay you the gross sum of One
Hundred Fifty Thousand Dollars ($150,000) as severance pay
(“Severance Pay”), within 7 days after the Separation
Date and you have signed the attached Addendum No. 1 and provided
you have taken no action after the Effective Date that would
constitute a material breach of any of the provisions of this
Agreement. The Company shall withhold from the Severance Pay any
amount required to satisfy applicable withholding requirements, and
shall report the payment of the Severance Pay to the appropriate
taxing authorities, all as required by applicable federal, state or
local law. The Company makes no representation to you regarding the
taxability of the Severance Pay. You agree that you are responsible
for and will pay all taxes you owe on the Severance
Pay.
3. The
Parties shall enter into an advisor agreement (the “Advisor
Agreement”) in a form provided by the Company and reasonably
acceptable to you on or prior to the Separation Date pursuant to
which you shall become an advisor to the Company (with no break in
service from your transition from an employee of the Company to an
advisor). The Advisor Agreement shall have an initial term of one
year and shall be renewable, yearly, by mutual agreement of you and
the Company. This Agreement shall also expressly amend the existing
Amended and Restated 2006 Stock Incentive Plan of Sanuwave Health,
Inc. Agreements dated November 23, 2018 and May 31, 2018, between
Company and You, and subsection (c) of section 4 in each of these
agreement shall be deleted in its entirety and replaced with the
following:
“90
days following the date of termination of the Advisor Agreement
between Optionee and Company”
4. In
exchange for the consideration provided in this Agreement, you and
your heirs, executors, representatives, administrators, agents, and
assigns (collectively, the “Releasors”) irrevocably and
unconditionally fully and forever waive, release, and discharge the
Company, including parents, subsidiaries, affiliates, predecessors,
successors, and assigns, and each of its and their respective
officers, directors, employees, in their corporate and individual
capacities (collectively, the “Released Parties”), from
any and all claims, demands, actions, causes of actions, judgments,
rights, fees, damages, debts, obligations, liabilities, and
expenses (inclusive of attorneys' fees) of any kind whatsoever,
whether known or unknown (collectively, “Released
Claims”), that you may have or have ever had against the
Released Parties, or any of them, arising out of, or in any way
related to the your hire, benefits, employment, termination, or
separation from employment with the Company by reason of any actual
or alleged act, omission, transaction, practice, conduct,
occurrence, or other matter from the beginning of time up to and
including the date of your execution of this Agreement, including
but not limited to:
(i) any
and all claims under Title VII of the Civil Rights Act of 1964
(Title VII), the Americans with Disabilities Act (ADA), the Family
and Medical Leave Act (FMLA) (regarding existing but not
prospective claims), the Fair Labor Standards Act (FLSA), the Equal
Pay Act, the Employee Retirement Income Security Act (ERISA)
(regarding unvested benefits), the Civil Rights Act of 1991,
Section 1981 of U.S.C. Title 42, the Fair Credit Reporting Act
(FCRA), the Worker Adjustment and Retraining Notification (WARN)
Act, the National Labor Relations Act (NLRA), the Age
Discrimination in Employment Act (ADEA), the Uniform Services
Employment and Reemployment Rights Act (USERRA), the Genetic
Information Nondiscrimination Act (GINA), the Immigration Reform
and Control Act (IRCA), the Georgia Equal Pay Act (GEPA), the
Georgia Prohibition of Age Discrimination in Employment Act and the
Georgia Discriminatory Wage Practices Based on Sex Act, all
including any amendments and their respective implementing
regulations, and any other federal, state, local, or foreign law
(statutory, regulatory, or otherwise) that may be legally waived
and released; however, the identification of specific statutes is
for purposes of example only, and the omission of any specific
statute or law shall not limit the scope of this general release in
any manner;
(ii)
any and all claims arising under tort, contract, and quasi-contract
law, including but not limited to claims of breach of an express or
implied contract, wrongful or retaliatory discharge, fraud,
defamation, negligent or intentional infliction of emotional
distress, tortious interference with a contract or prospective
business advantage, breach of the covenant of good faith and fair
dealing, promissory estoppel, detrimental reliance, invasion of
privacy, false imprisonment, nonphysical injury, personal injury or
sickness, or any other harm;
(iii)
any and all claims for compensation of any type whatsoever,
including but not limited to claims for wages, salary, bonuses,
commissions, incentive compensation, vacation, sick pay, and
severance that may be legally waived and released; and
(iv)
any and all claims for monetary or equitable relief, including but
not limited to attorneys' fees, back pay, front pay, reinstatement,
experts' fees, medical fees or expenses, costs and disbursements,
punitive damages, liquidated damages, and penalties.
5. You
acknowledge that you are waiving and releasing any rights you may
have under the Age Discrimination in Employment Act of 1967
(“ADEA”), and that this waiver and release is knowing
and voluntary. You acknowledge that the consideration given for
this waiver and release is in addition to anything of value to
which you were already entitled. You further acknowledge that you
have been advised by this writing that: (a) you should consult with
an attorney prior to executing this Agreement; (b) you have
twenty-one (21) days within which to consider this Agreement; (c)
you have seven (7) days following your execution of this Agreement
to revoke this Agreement; (d) this Agreement shall not be effective
until after the revocation period has expired; and (e) nothing in
this Agreement prevents or precludes you from challenging or
seeking a determination in good faith of the validity of this
waiver under the ADEA, nor does it impose any condition precedent,
penalties, or costs for doing so, unless specifically authorized by
federal law. In the event you sign this Agreement and returns it to
the Company in less than the 21-day period identified above, you
hereby acknowledges that you have freely and voluntarily chosen to
waive the time period allotted for considering this Agreement. You
acknowledge and understand that revocation must be accomplished by
a written notification to the person executing this Agreement on
the Company’s behalf that is received prior to the effective
date. The Parties agree that changes, whether material or
immaterial, do not restart the running of the 21-day
period.
6. You
represent that you have not initiated, filed, or caused to be filed
and agree not to initiate, file, or cause to be filed, or otherwise
pursue any Released Claims against any of the Released
Parties.
7. You
also agree that this Agreement, and each of its terms, including
the negotiations leading up to it, are confidential and you will
not discuss the Agreement, or any of its terms or the negotiations
leading up to it, with anyone except your attorney, spouse, or tax
advisors without the Company’s prior written
consent.
8. Each
Party agrees that neither Party will make or publish, either orally
or in writing, any disparaging statement regarding the other Party.
This includes any and all disparagements of the Company, its
business or products, any of its guests, vendors, employees,
officers, directors, or customers, or in any way wrongfully
impeding or interfering with the Company’s customer
relationships.
9.
Except for operation of a mobile health services company, which may
use certain Company products and related product information, all
of which shall be expressly permitted by Company, You agree that
you remain bound by your promises and obligations under the
Company’s Confidentiality and Non-Compete Agreement that you
signed at the start of your employment with the Company and which
is attached hereto. Except as noted above, You acknowledge and
agree that the Company’s obligations to provide the Severance
Pay are subject to your continued compliance with your obligations
under the Confidentiality and Non-Compete Agreement. For the
purposes of compliance with the Confidentiality and Non-Compete
Agreement, the Parties agree that “Business” shall mean
Extracorporeal Shock Wave Technology (ESW), ultrasound and
electro-stimulation to help the human body heal.
10.
Notwithstanding anything to the contrary in this Agreement, nothing
in this Agreement prohibits you from exercising protected rights,
including rights under the National Labor Relations Act, to file a
charge with the Equal Employment Opportunity Commission, or to
report possible violations of law or participate in an
investigation by any federal, state or local government agency or
commission such as the National Labor Relations Board, the
Department of Labor, OSHA, the Department of Justice or the SEC.
You do, however, waive any right to receive any monetary award or
benefit resulting from such a charge, report, or investigation
related to Released Claims, except that you may receive and fully
retain a monetary award from a government-administered
whistleblower award program. You and the Company further
acknowledge and agree that this Agreement shall not be construed as
a waiver of any rights that are not subject to waiver by private
agreement or otherwise cannot be waived as a matter of law. You
also acknowledge that you have been advised that under 18 U.S.C.
§ 1833(b):
“An
individual shall not be held criminally or civilly liable under any
Federal or State trade secret law for the disclosure of a trade
secret that—(A) is made—(i) in confidence to a Federal,
State, or local government official, either directly or indirectly,
or to an attorney; and (ii) solely for the purpose of reporting or
investigating a suspected violation of law; or (B) is made in a
complaint or other document filed in a lawsuit or other proceeding,
if such filing is made under seal.”
Accordingly,
notwithstanding anything to the contrary in this Agreement, you
understand that you have the right to disclose in confidence trade
secrets to federal, state, and local government officials, or to an
attorney, for the sole purpose of reporting or investigating a
suspected violation of law. You understand that you also have the
right to disclose trade secrets in a document filed in a lawsuit or
other proceeding, but only if the filing is made under seal and
protected from public disclosure. You understand and acknowledge
that nothing in this Agreement is intended to conflict with 18
U.S.C. § 1833(b) or create liability for disclosures of trade
secrets that are expressly allowed by 18 U.S.C. §
1833(b).
11. The
Parties agree that any communications regarding your status as an
employee or officer of the Company shall be consistent with a
script to be mutually agreed between you and the Company’s
Chief Executive Officer.
12. As
a material inducement to the Company to enter into this Agreement,
you hereby acknowledge and agree that the Company has no obligation
to consider you for employment or to hire or employ you in any
capacity at any time now or in the future and you hereby agree to
forever waive any claim of right and/or entitlement to such
employment or reemployment.
13. You
further acknowledge that this Agreement, the Confidentiality and
Non-Compete Agreement and the Amended and Restated 2006 Stock
Incentive Plan of Sanuwave Health, Inc. Agreements dated November
23, 2018 and May 31, 2018 between Company and You, represent the
entire agreement and understanding between the Parties regarding
its subject matter, supersedes and replaces any and all prior
agreements and understandings regarding its subject matter, and
shall not be modified in any way except in writing executed by the
you and the Chief Executive Officer of the Company; provided,
however, that if the Company is in breach of this Agreement for
failing to timely pay the Severance Pay and you have signed the
attached Addendum No. 1 on or following the Separation Date and
have taken no action after the Agreement Effective Date that would
constitute a material breach of any of the provisions of this
Agreement, you shall be entitled to seek recovery of any amounts
that you would otherwise be entitled to pursuant to that certain
Offer Letter entered into between you and the Company dated April
11, 2018. This Agreement shall be governed by the laws of the State
of Georgia, without giving effect to provisions governing the
choice of law. You also agree that if any term or portion of this
Agreement is found to be unenforceable under applicable law, such
finding shall not invalidate the whole Agreement, but the Agreement
shall be construed as not containing the particular term or portion
held to be invalid and the rights and obligations of the parties
shall be construed and enforced accordingly. This Agreement is
severable.
14. You
understand and agree that this Agreement is not an admission of
guilt or wrongdoing by the Company or you and that neither the
Company nor you believes or admits that it/you has done anything
wrong.
15. You
agree to return to the Company, or have already returned to the
Company, any and all files or other property of the Company
(including, but not limited to, all Company documents, including,
without limitation, financial documents, personnel records,
marketing and business plans, actual or prospective client lists;
computers, laptops, smartphones or other telephones, company-issued
electronic devices, identification and security cards, keys,
contracts, office equipment and supplies, records, computer discs,
emails and other electronic files) without retaining any
copies.
16.
Except as provided in this Agreement you will not receive any
benefits or compensation from the Company. You acknowledge that you
are not entitled to any benefits or compensation from the Company
which you have not already received except as provided in this
Agreement. You also acknowledge that you are not aware of any
injury you have suffered at work for which you have not already
submitted a claim.
17. The
Parties agree that any and all disputes arising out of the terms of
this Agreement, their interpretation, and any of the matters herein
released, shall be subject to binding arbitration in Gwinnett
County, Georgia before the American Arbitration Association under
its Employment Dispute Resolution Rules, or by a judge to be
mutually agreed upon. The Parties agree that the prevailing party
in any arbitration shall be entitled to injunctive relief in any
court of competent jurisdiction to enforce the arbitration award.
You expressly acknowledge that you are waiving any right to a jury
trial for any and all claims covered by this
Agreement.
18. All
the terms and provisions of this Agreement shall be binding upon,
inure to the benefit of and be enforceable by the respective
successors and assigns of the parties hereto. You may not assign
any of your rights or obligations under this Agreement without the
Company’s prior written consent.
19.
This Agreement may be executed in counterparts, and each
counterpart shall have the same force and effect as an original and
shall constitute an effective, binding agreement on the part of
each of the undersigned.
20.
Prior to execution of this Agreement, you were advised to seek
counsel from advisors and attorneys of your own selection regarding
the matters contemplated by this Agreement, including any tax
matters relating thereto. You acknowledge that you have been
afforded every opportunity to and have read this Agreement, are
fully aware of its contents and legal effect after consulting with
counsel, and have chosen to enter into this Agreement freely,
without coercion, and based on your own judgment. You further
represent that in entering into this Agreement, you are not relying
on any statements or representations made by the Company, its
affiliates or, where applicable, any of their respective directors,
officers, employees or agents that are not expressly set forth
herein, and that you are relying only upon your own judgment and
any advice provided by your attorney.
IN
WITNESS WHEREOF, the Parties have executed this Agreement on the
respective dates set forth below.
By:
/s/ Shri
Parikh
Name:
Shri Parikh
Date of
Signature: May 15,
2020
By:
/s/ Kevin A. Richardson II
Name:
Kevin A. Richardson II
Title:
Chief Executive Officer at SANUWAVE Health, Inc.
Date of
Signature: May 15,
2020
ADDENDUM NO. 1 TO SEPARATION AGREEMENT AND GENERAL
RELEASE
By
executing this Acknowledgment, and in exchange for the Severance
Pay, I understand and agree that all the terms of the preceding
Separation Agreement and General Release are effective as of the
date set forth below.
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Date:
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By:
______________________________
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Name: Shri
Parikh
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