SETTLEMENT AGREEMENT AND MUTUAL RELEASE This Settlement Agreement and Mutual Release ("Agreement") is entered into by and between David L. Dunn, M.D., Ph.D. ("Dr. Dunn") and the University of Louisville (the "University") (collectively the "Parties"). This Agreement is made with reference to the following facts: A. WHEREAS, Dr. Dunn was employed by the University from July 1, 2011 to December 12, 2016; B. WHEREAS, Dr. Dunn has notified the University in writing of his resignation, effective December 12, 2016; C. WHEREAS, the Parties wish to fully and forever settle among themselves all claims, issues, and controversies between them relating to Dr. Dunn's employment with the University; and D. WHEREAS, the University is willing to provide Dr. Dunn with certain considerations described below, which it is not ordinarily required to, provided that Dr. Dunn releases his appointment as a tenured faculty member including all rights provided by the University to tenured faculty members under The Redbook and releases the University from any claims that Dr. Dunn has made or could make arising out of his employment with the University and agrees to comply with the other promises and conditions set forth in this Agreement. NOW THEREFORE, in consideration of the covenants and promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the Parties, the Parties agree to be legally bound by the following terms and conditions, which constitute full settlement and discharge of any and all disputes between them: 1. Recitals: The Parties acknowledge that the ''WHEREAS" clauses preceding Paragraph 1 are true and correct, and are incorporated herein as material parts to this Agreement. 2. Definitions: following: Throughout this Agreement, the term the "University" shall include the A. The University of Louisville, the Board of Trustees of the University of Louisville, and any subsidiary, affiliated entity, related entity, operating entity, or division of the University of Louisville, including the University of Louisville Foundation and its subsidiaries, affiliated entities and related entities; and B. Any current or former officer, director, trustee, agent, employee, or insurer of any entity encompassed by subparagraph (A). Page 1of9 c - '=' \ Dr. Dunn's Initial~ 3. Settlement: Dr. Dunn and the University agree that, as consideration for signing this Agreement and compliance with the promises made herein, the University shall pay Dr. Dunn the sum of one million one hundred fifty thousand dollars and no/100 cents ($1,150,000.00) (the "Settlement Amount"). However, the University shall withhold from the Settlement Amount all applicable taxes including wage and FICA, but shall not withhold or deduct from the Settlement Amount any payment toward benefits or retirement or savings. The amount of the Settlement Amount left after the University withholds taxes shall be known as the "Settlement Payment." The Settlement Payment shall be made in a check to be made payable to Dr. Dunn, no later than five (5) working days after the Effective Date of this Agreement (as provided in Paragraph 25 below) . This obligation to pay Dr. Dunn is not contingent upon, voidable, or otherwise avoidable by the University for any reason other than Dr. Dunn's breach of this settlement agreement. 4. Reference: The University agrees to provide Dr. Dunn with a letter of reference drafted and signed by Acting President Neville Pinto. The substance of this letter shall be based upon the annual reviews that Dr. Dunn received that were conducted by the Office of the President from 2011 to 2015 and shall state that Dr. Dunn was in good standing with the University at the time of his resignation. 5. Resignation: The Parties agree and acknowledge that Dr. Dunn voluntarily resigned his employment with the University, including all faculty and administrative appointments, effective December 12, 2016. The Parties also acknowledge that Dr. Dunn was in good standing with the University at the time of his resignation. 6. Consideration: Dr. Dunn understands and agrees that he would not receive the monies, and/ or benefits specified herein, including the Settlement Payment provided in Paragraph 3 and the reference provided in Paragraph 4, but for his execution of this Agreement and the ful£illment of the promises contained herein, and hereby acknowledges the sufficiency of the consideration. 7. Dr. Dunn's General Release of Claims and Agreement Not to Sue: In exchange for, and in consideration of, the payment and other commitments and/ or benefits described above, Dr. Dunn, for himself and for each of his heirs, executors, administrators, and assigns, hereby fully releases, acquits, and forever discharges the University and each of its predecessors, successors and assigns, officers, directors, trustees, partners, employees, attorneys and agents, past and present, of each of the aforesaid entities of and from any and all claims, liabilities, causes of action, appeals, damages, costs, attorneys' fees, expenses, and compensation whatsoever, of whatever kind or nature, in law, equity or otherwise, whether known or unknown, vested or contingent, suspected or unsuspected, that Dr. Dunn may now have or has ever had relating to his employment with or resignation from the University, including, but not limited to, claims for wages; back pay; front pay; reinstatement; repayment, damages; or other benefits. Dr. Dunn also releases any and all claims he may have that arose prior to the date of this Agreement, and hereby specifically waives and releases all claims, including, but not limited to, those arising under Title VII of the Civil Rights Act of 1964; as amended, the Civil Rights Act of 1991; the Equal Pay Act, as amended; the Americans With Disabilities Act of 1990, as amended; the Rehabilitation Act of 1973, as amended; the Age Discrimination in ~ ('\ Page2of9 Dr. Dunn's Initi~ Employment Act ("ADEA'') as amended; Sections 1981 through 1988 of Title 42 of the United States Code, as amended; the Immigration Reform and Control Act, as amended; the Workers Adjustment and Retraining Notification Act, as amended; the Occupational Safety and Health Act, as amended; the Sarbanes-Oxley Act of 2002; the Consolidated Omnibus Budget Reconciliation Act (COBRA); the Employee Retirement Income Security Act of 1974, as amended; the National Labor Relations Act; the Family and Medical Leave Act: the Kentucky Civil Rights Act, KRS Ch. 344 et seq.; the Kentucky Wage and Hour Law, KRS Ch. 337 et seq., the Kentucky Equal Opportunities Act, KRS Ch. 207 et seq., the Kentucky Patient Safety Act, KRS 216B et seq., the Kentucky Whistleblower Act; any claim arising under the Medicare Secondary Payer Statute and/or 42 U.S.C. § 1395y(b)(3)(A) thereof; and any and all federal, state or local statutes, ordinances, or regulations, as well as all claims arising under federal, state, or local law involving any tort, employment contract (express or implied), fraud, fraudulent misrepresentation, quantum meruit, promissory estoppel, breaches of fiduciary duty, conversion, intentional infliction of emotional distress, harassment, hostile work environment, constructive discharge, defamation, public policy, wrongful discharge, claims pertaining to employment or employment discrimination, false imprisonment, or any other claim. Dr. Dunn further agrees not to file any requests with the University pursuant to the Kentucky Open Records Act or the Kentucky Open Meetings Act. The parties acknowledge that it may become necessary for Dr. Dunn to initiate an open records request with the University in connection with the prosecution or defense of legal actions involving third parties. Therefore, it shall not be considered a violation of this Agreement for Dr. Dunn to initiate an open records request with the University to the extent it is necessary for him to do so to obtain information relating to his employment with the University to assist him in the prosecution or defense of any legal actions involving third parties in situations where securing such information via subpoena is not an option. Except as otherwise provided herein, Dr. Dunn understands and agrees that he is releasing the University from any and all claims, by which he is giving up the opportunity to recover any compensation, damages, or any other form of relief in any proceeding brought by Dr. Dunn or on Dr. Dunn's behalf. Dr. Dunn further promises and agrees not to file suit, institute any legal or administrative proceedings, or otherwise pursue or prosecute a lawsuit, or other legal or administrative action seeking damages, compensation, benefits, attorney fees or any other remedy or relief, based upon any rights, claim or cause of action described above or otherwise arising out of his employment with and resignation from the University. 8. The University's General Release of Claims and Agreement Not to Sue: In exchange for, and in consideration of, the release given by Dr. Dunn in paragraph 7 herein, and other commitments and/ or benefits described herein, the University, for itself and for each of its successors, predecessors, administrators, assigns, subsidiaries, affiliates and any current or former officer, director, trustee, partners, agent, employee, attorney, or insurer, all in their official University capacities, hereby fully releases, acquits, and forever discharges Dr. Dunn and each of his heirs, executors, administrators, partners and assigns, past and present, from any and all claims, liabilities, causes of action, appeals, damages, costs, attorneys' fees, and expenses whatsoever, of whatever kind or nature, in law, equity or otherwise, whether known or unknown, vested or contingent, suspected or unsuspected, that the University may now have or has ever had relating to Dr. Dunn's employment with or resignation from the Page3of9 ~~ Dr. Dunn's Initial~ University, including, but not limited to, releasing Dr. Dunn from claims for payment or indemnity related to any funding, procurement or expenditure decisions made by Dr. Dunn during his employment at the University. Except as otherwise provided herein, the University agrees that it is releasing Dr. Dunn from any and all claims, by which it is giving up the opportunity to recover any indemnity, recovery, damages, or any other form of relief in any proceeding brought by or behalf of the University. The University further promises and agrees not to file suit, institute any legal or administrative proceedings, or otherwise pursue or prosecute a lawsuit, or other legal or administrative action against Dr. Dunn seeking damages, compensation, benefits, attorney fees or any other remedy or relief, based upon any rights, claim or cause of action described above or other claims against Dr. Dunn relating to or arising out of Dr. Dunn's employment with or resignation from the University. 9. Dr. Dunn's Medicare Benefits: Dr. Dunn hereby warrants and represents that he is not, nor has he ever been, enrolled in the Medicare program and that he has not received Medicare benefits for personal medical services or items related to, arising from, or in connection with any claims against the University. Dr. Dunn further understands and agrees that the University is relying on the veracity and accuracy of the foregoing representations about his Medicare status and that the representations are material and non-waivable terms of this Agreement. Dr. Dunn also warrants and represents that there are no known liens or rights of reimbursement related to the claims being settled in the Agreement and agrees that it is his sole responsibility to pay, compromise or otherwise satisfy any such liens or rights out of the funds paid in connection with the Agreement. To the extent that Dr. Dunn's representations and warranties related to his Medicare status and/ or receipt of medical services and items related to claims are inaccurate, not current, or misleading, Dr. Dunn agrees to indemnify and hold the University harmless from any and all claims, demands, liens, subrogated interests, and causes of action related in any way to Dr. Dunn's personal Medicare benefits that have been or may in the future be asserted by Medicare and/ or persons or entities acting on behalf of Medicare, or any other person or entity, arising from or related to this Agreement, the payment of the Settlement Amount, any Conditional Payments made by Medicare, or any medical expenses or payments arising from or related to any claim that is subject to this Agreement or the release set forth herein, including but not limited to: (a) all claims and demands for reimbursement of Conditional Payments or for damages or double damages based upon any failure to reimburse Medicare for Conditional Payments; (b) all claims and demands for penalties based upon any failure to report, late reporting, or other noncompliance with or violation of Section 111 of :MMSEA that is based in whole or in part upon late, inaccurate, or inadequate information provided to the University by Dr. Dunn or Dr. Dunn's counsel or upon any failure of Dr. Dunn or Dr. Dunn's counsel to provide information; and (c) all liens for medical care, health expenses, Social Security payments, disability, insurance subrogation claims, Medicare liens or rights of reimbursement, and any other form of lien which has arisen or may arise as a result of payments made, or to be made in the future, by or on behalf of Dr. Dunn. This indemnification obligation includes all damages, double damages, fines, penalties, attorneys' Page 4of9 . "al0,~ Dr. Dunn's Irutl ls~ fees, costs, interest, expenses, and judgments incurred by or on behalf of the University in connection with such claims, demands, subrogated interests, or causes of action. In consideration of the payments set forth in this Agreement, Dr. Dunn waives, releases, and forever discharges the University from any obligations for any claim, known or unknown, arising out of the failure of the University to provide for a primary payment or appropriate reimbursement pursuant to 42 U.S.C. 1395y(b)(3)(A) of the Medicare Secondary Payer Act. Dr. Dunn understands this settlement may impact, limit or preclude his right or ability to receive future Medicare benefits arising out of any alleged injuries released in this Agreement, and nevertheless wishes to proceed with the settlement. 10. Affirmations: Dr. Dunn represents and affirms that he has been paid and/or received all leave (paid or unpaid), compensation, wages, bonuses, commissions, and/ or benefits to which he may be entitled and that no other leave (paid or unpaid), compensation, wages, bonuses, commissions, and/ or benefits are due him, except as provided for in this Agreement. Dr. Dunn also represents and affirms that he is not aware of any legal, compliance, or regulatory issues or violations by or at the University other than those that he may have previously disclosed to the University. Dr. Dunn also affirms that he is represented by Barnes & Thornburg LLP, that he has consulted with his attorney regarding this Agreement and that he has been given a sufficient period of time to consider this Agreement. 11. No Further Employment: Dr. Dunn acknowledges that his employment with the University terminated with his voluntary resignation effective December 12, 2016. Dr. Dunn waives any and all rights he may have to obtain or resume employment with the University or any of its related or affiliated entities. 12. Return of University Property: Dr. Dunn agrees to return all University property, information, and documents which he has in his possession in any form, including but not limited to documents, communications, and information, in their original and in any other existing and prior forms within five (5) calendar days of the execution of this Agreement, with the exception of copies of documents retained on the advice of his counsel on the basis that they may be relevant to their representation of him in pending or reasonably anticipated legal matters. Dr. Dunn also agrees to permanently delete and eliminate from his possession in any form all electronic records, documents, communications, and information, currently in his possession in their original and in any other existing and prior forms, with the exception of copies of documents retained on the advice of his counsel on the basis that they may be relevant to their representation of him in pending or reasonably anticipated legal matters. Dr. Dunn shall certify to the University within five (5) calendar days of the execution of this Agreement that he has complied with his obligations under this paragraph . Dr. Dunn further agrees that he will hold any documents retained on the advice of counsel in strict confidence and share such documents with third parties only when his counsel has advised him to do so. Dr. Dunn further agrees that, when any currently pending legal matters related to him have concluded, he will promptly and permanently return to the University, delete and/ or eliminate from his possession or control in any form all University Page 5of9 Dr. Dunn's Initi~ records, documents, communications, and information that he had retained on the advice of counsel. 13. Confidentiality: In consideration of the obligations under this Agreement, the parties agree that the fact of this Agreement and the terms and conditions hereof, are intended to be confidential, and that neither Dr. Dunn nor his heirs, spouse or significant other, agents, executors, administrators, attorneys, legal representatives or assigns shall disclose or disseminate or publish, directly or indirectly, any information concerning the fact or any terms of this Agreement to any third person(s), including, but not limited to, representatives of the media or other present or former employees of the University. The University agrees that Dr. Dunn may disclose the terms of this Agreement to his attorney, spouse or significant other, accountant, tax advisor, the Internal Revenue Service, or as otherwise required by law (collectively "Third Parties"); provided, however, that the Third Parties to whom such disclosure is made shall agree in advance to be bound by the terms of this Paragraph 13 and all of its subparts. Nothing in this provision shall limit Dr. Dunn's or the University's ability to truthfully respond to media inquiries concerning the circumstances surrounding Dr. Dunn's resignation and the fact that the University has negotiated a buy-out of Dr. Dunn's tenure. Both parties agree that any response to media inquiries will be consistent with the recitals and other statements contained herein. Nor shall it be deemed a breach of this Agreement for the University to produce this Agreement in connection with a valid request under the Kentucky Open Records Act. To the extent permissible by law, the Parties agree that it is their intention that the individual terms, conditions, and mutual considerations of this Agreement remain confidential and agree that neither Party shall voluntarily disclose the individual terms, conditions, and mutual considerations contained therein, except as expressly provided in this Paragraph 13. 14. No Admission of Liability: 15. Non-Disparagement: The Parties agree that neither this Agreement nor the furnishing of the consideration for this Agreement shall be deemed or construed at any time for any purpose as an admission by either the University or Dr. Dunn of any liability or unlawful conduct of any kind. The Parties agree that, on or after the Effective Date of this Agreement, they will not voluntarily provide any information, issue statements, or take any action, directly or indirectly, that would cause the other to be held in disrepute. The following shall be bound by this Paragraph 15 of the Agreement: A. David Dr. Dunn and all of his agents, actors, attorneys, and representatives; B. Counsel of record for the parties; C. University President, Vice Presidents, and Deans; D. The following individual University employees: Dr. Kelly McMasters, Dr. Donald Miller, Dr. Greg Postel, Dr. Gerard Rabelais, Dr. David Richardson, and Dr. Charles Scoggins; E. Board of Trustees of the University of Louisville; and, F. Dr. Kelli Dunn. Page 6of9 Dr. Dunn's Initial~ Further, the persons identified provide any information, issue would cause Dr. Kelli Dunn to omissions occurring prior to the in subparts A through E above agree not to voluntarily statements, or take any action, directly or indirectly, that be held in disrepute as the result of any of her actions or date this Agreement is signed. Nothing in this Agreement is intended to prohibit the Parties from truthfully responding to any inquiry from a regulatory or compliance entity or providing evidence, discovery or testimony in a legal or administrative proceeding. 16. Governing Law and Jurisdiction: This Agreement shall be governed and construed in accordance with the laws of the Commonwealth of Kentucky. 17. No Assignment: The Parties represent and warrant that no person other than the signatories hereto had or has any interest in the matters referred to in this Agreement, that the Parties have the sole right and exclusive authority to execute this Agreement, and that the Parties have not sold, assigned, transferred, conveyed, or otherwise disposed of any claim, demand or legal right that is the subject of this Agreement. 18. Modification of Agreement: This Agreement may not be amended, revoked, changed, or modified in any way, except in writing executed by all Parties. No waiver of any provision of this Agreement will be valid unless it is in writing and signed by the party against whom such waiver is charged. 19. Interpretation: The language of all parts of this Agreement shall in all cases be construed as a whole, according to its fair meaning, and not strictly for or against any of the Parties. This Agreement has been negotiated by and between attorneys for the Parties and shall not be construed against the "drafter" of the Agreement. 20. Headings: The headings of the provisions herein are intended for convenient reference only, and the same shall not be, nor be deemed to be, interpretative of the contents of such provision. 21. Severability: The Parties explicitly acknowledge and agree that the provis10ns of this Agreement are both reasonable and enforceable. However, if any portion or provision of this Agreement (including, without implication of limitation, any portion or provision of any section of this Agreement) is determined to be illegal, invalid, or unenforceable by any court of competent jurisdiction and cannot be modified to be legal, valid, or enforceable, the remainder of this Agreement shall not be affected by such determination and shall be valid and enforceable to the fullest extent permitted by law, and said illegal, invalid, or unenforceable portion or provision shall be deemed not to be a part of this Agreement. 22. Binding Nature of Agreement: This Agreement shall be binding upon each of the Parties and upon their respective heirs, administrators, representatives, executors, successors, and assigns, and shall inure to the benefit of each party and to their respective heirs, administrators, representatives, executors, successors, and assigns. 23. Selective Enforcement: The Parties agree that the failure of any party to enforce or exercise any right, condition, term, or provision of this Agreement shall not be construed as Page 7 of 9 Dr. Dunn's ""'~ Initial~~ or deemed a relinquishment or waiver thereof, and the same shall continue in full force and effect. 24. Compliance with the Older Workers Benefit Protection Act: Dr. Dunn understands that the releases set forth in Paragraph 7 include a release of any claims he may have against the University, up to the date this Agreement is executed, under the Age Discrimination in Employment Act ("ADEA''), as amended by the Older Workers Benefit Protection Act ("OWBPA") . Dr. Dunn understands and acknowledges that: 25. A. The University provided him, at his option, twenty-one (21) days from the date this Agreement was first presented to him to consider the Agreement; B. He has carefully read and fully understands all of the terms and provisions of the Agreement; C. He understands that the ADEA is a federal statute that prohibits discrimination on the basis of age in employment, benefits, and benefit plans; D. He is, through this Agreement, waiving, releasing, and forever giving up any and all claims that he may have against the University that may have existed on or prior to the date upon which he executes the Agreement; E. He knowingly and voluntarily agrees to all of the terms and provisions of the Agreement; F. He knowingly and voluntarily intends to be legally bound by all of the terms and provisions of the Agreement; G. He has hereby been advised to consult with an attorney of his choice in writing before executing the Agreement; H. He is receiving consideration for his waiver of any and all claims under the ADEA that is in addition to anything of value to which he is already entitled; I. He has a period of seven (7) days following his execution of this Agreement to revoke the Agreement ("Revocation Period") by delivering a letter of revocation to the University's coun~el, Donna King Perry, no later than 5 p.m. on the seventh day after executing this Agreement; and J. He has been advised in writing that this Agreement shall not become effective until the Revocation Period has expired. Effective Date: The Parties agree that this Agreement will become effective only if (i) Dr. Dunn signs this Agreement and delivers it to counsel for the University, and (ii) the Revocation Period has expired. The effective date of the Agreement will be the eighth (8th) calendar day after Dr. Dunn executes the Agreement without revocation. 26. Notice Requirements: Each notice ("Notice") provided for under this Agreement, must comply with the requirements as set forth in this paragraph. Each Notice shall be in writing and sent by facsimile or depositing it with a nationally recognized overnight courier service that obtains receipts (such as Federal Express or UPS Next Day Air), addressed to the appropriate party (and marked to a particular individual's attention, if so indicated) as hereinafter provided. Each Notice shall be effective upon being so telecopied or deposited, Page 8of9 Dr. Dunn's Initia~ but the time period in which a response to any notice must be given or any action taken with respect thereto shall commence to run from the date of receipt of the Notice by the addressee thereof, as evidenced by the return receipt. Rejection or other refusal by the addressee to accept or the inability to deliver because of a changed address of which no Notice was given shall be deemed to be the receipt of the Notice sent. Any party shall have the right from time to time to change the address or individual's attention to which notices to it shall be sent by giving to the other party at least ten (10) days prior Notice thereof. The Parties' addresses for providing Notices hereunder shall be as follows: The University of Louisville c/ o Donna I<:ing Perry Dinsmore & Shohl LLP 101 South Fifth Street, Suite 2500 Louisville, Kentucky 40202 Telephone: (502) 581-8000 David Dunn, MD., Ph.D. c/ o Meredith Thornburgh White Barnes & Thornburg LLP 11 South Meridian Street Indianapolis, Indiana 46204 Telephone: (317) 231-6417 27. Entire Agreement: This Agreement sets forth the entire Agreement between the Parties hereto, and fully supersedes any prior obligation of the University to Dr. Dunn. Dr. Dunn acknowledges that he has not relied on any representations, promises, or agreements of any kind made to him in connections with his decision to accept this Agreement, except for those set forth in this Agreement. 28. Execution in Counterparts: This Agreement may be executed in one or more counterparts, each of which may be signed and transmitted electronically, including by email, and shall have the same validity as if it were an original ink-signed document. ACCEPTED AND AGREED: By: ~, arJ~ .-\:(4~,/C-uJ-£~ t __ DAVID L. DUNN, M.D., PH.D. By: UNIVERSITY OF LOUISVILLE Date Title Page 9of9 27. 28. but the time period in which a response to any notice must be given or any action taken with respect thereto shall commence to run from the date of receipt of the Notice by the addressee thereof, as evidenced by the return receipt. Rejection or other refusal by the addressee to accept or the inability to deliver because of a changed address of which no Notice was given shall be deemed to be the receipt of the Notice sent. Any party shall have the right from time to time to change the address or individual?s attention to which notices to it shall be sent by giving to the other party at least ten (10) days prior Notice thereof. The Parties? addresses for providing Notices hereunder shall be as follows: The University of Louisville c/o Donna King Perry Dinsmore Shohl LLP 101 South Fifth Street, Suite 2500 Louisville, Kentucky 40202 Telephone: (502) 581-8000 David Dunn, M.D., c/o Meredith Thornburgh White Barnes 8.: Thornburg LLP 11 South Meridian Street Indianapolis, Indiana 46204 Telephone: (317) 231-6417 Entire Agreement: This Agreement sets forth the entire Agreement between the Parties hereto, and fully supersedes any prior obligation of the University to Dr. Dunn. Dr. Dunn acknowledges that he has not relied on any representations, promises, or agreements of any kind made to him in connections with his decision to accept this Agreement, except for those set forth in this Agreement. Execution in Counterparts: This Agreement may be executed in one or more counterparts, each of which may be signed and transmitted electronically, including by email, and shall have the same validity as if it were an original ink-signed document. ACCEPTED AND AGREED: By: DAVID L. DUNN, M.D., PHI). Date Rat; UNIVERSITY OF LOUISVILLE Date ACTING ?Paesmem- Title Page 9 of 9 Dr. Dunn?s Initials