Exhibit 10.51
SEPARATION AGREEMENT AND GENERAL RELEASE
1. This agreement ("Agreement") is made between Xxxxx Xxxxxxx
("Employee") and Intraop Medical Corporation ("Company") and their owners,
agents, officers, shareholders, employees, directors, attorneys, subscribers,
subsidiaries, affiliates, successors, assigns and co-employer TriNet HR
Corporation ("Releasees").
2. Employee is terminated from Company's employment effective the end
of business day on July 2, 2008. Releasees and Employee desire to conclude the
termination in an amicable way and outline conditions for which separation
compensation may be paid.
3. Company agrees to pay Employee continuing salary and non-recoverable
draw, including current benefits and benefit subsidies, through September 30,
2008, less all applicable state and federal payroll deductions. Employee will
further be entitled to the compensation shown on Exhibit A. This amount will be
paid after the time for revoking this Agreement, as described in Section 13
below, has expired. Employee acknowledges that Employee is receiving the
compensation outlined in this section in consideration for waiving Employee's
right to claims referred to in this Agreement and that Employee would not
otherwise be entitled to payment in the manner outlined herein.
4. Employee acknowledges receipt of all wages owed and, in exchange for
the compensation set forth in paragraph 3, forever gives up, waives and releases
any and all claims, charges, complaints, grievances or promises of any and every
kind Employee may have up to the date of this Agreement against Releasees and
related persons, including any and all claims for wages, overtime wages,
PTO/vacation payments, wage and hour penalties, unreimbursed expenses, age
discrimination, race or national origin discrimination, physical handicap and
medical condition discrimination, breach of contract or wrongful termination
from employment under California and federal laws, including but not limited to
the United States Civil Rights Act as amended, 42 U.S.C. Section 2000e et seq;
the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. Section
621 et seq; and the California Fair Employment and Housing Act, California
Government Code Section 12900 et seq.
5. Employee agrees that by signing this Agreement and accepting the
payment described above, Employee gives up any and all rights Employee may have
to file a claim or complaint of any kind against Releasees or any related
persons. Employee therefore specifically and freely waives any and all rights
Employee may have under California Civil Code section 1542, which states:
"A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor."
6. Employee agrees that this Agreement is private and that Employee
will not discuss the fact that it exists or its terms with anyone else except
Employee's advisor as described in section 8 below, Employee's tax accountant,
or as required by law.
7. Both Employee and Company agree not to disparage the other party,
the other party's officers, directors, employees, shareholders and agents, in
any manner likely to be harmful to them or their business, business reputation,
personal reputation; provided that both Employee and Company will respond
accurately and fully to any question, inquiry, or request for information when
required by legal process.
8. Employee has been advised of Employee's right to consult an attorney
before Employee signs this agreement. Employee has been offered a 21-day period
in which to consider whether to sign this Agreement. Employee signs this
Agreement voluntarily regardless of when during the 21-day period Employee signs
it. This Agreement must be signed by Employee and returned to Company not later
than July 23, 2008 to be valid. If the Agreement is not received by Company by
that date, the offer will be considered expired and withdrawn.
9. Company agrees that Employee may keep and take ownership of the
equipment listed on Exhibit B. Employee warrants and represents that, except as
set forth on Exhibit B, he has returned all property in his possession and that
he no longer has actual or constructive possession of any such property,
including, without limitation, office keys, credit cards, computer equipment,
cell phone, and office equipment and that any equipment which Employee fails to
return shall nonetheless remain property of the Company.
10. Employee acknowledges that due to the position Employee occupied
and the responsibilities Employee had at Company, Employee received confidential
information concerning Company's products, procedures, customers, sales, prices,
contracts, documents relating to the Company's business affairs, trade secrets,
proprietary or confidential information, business opportunities, marketing
plans, price and cost data, finances, customer lists, business methods, business
plans, sales, manufacturing plans, products, processes, services, accounting
records, manufacturing procedures, product specifications, drawings, research,
developments, inventions, engineering documents, employees manuals, letters,
reports and similar documents. All such documents, writings, computer diskettes,
apparatus, equipment, and other property shall at all times remain the property
of the Company. Employee hereby promises and agrees that, unless compelled by
legal process, Employee will not disclose to others and will keep confidential
all such information confidential. Employee specifically confirms that Employee
will continue to comply with the terms of any Proprietary Information and
Inventions Agreement, Non-disclosure Agreement or similar agreement Employee has
executed with the Company. Employee agrees that a violation by Employee of the
foregoing obligations to maintain the confidentiality of Company's confidential
information will constitute a material breach of this Agreement.
11. Employee and Company agree that if any dispute arises concerning
interpretation and/or enforcement of the terms of this Agreement, said dispute
shall be resolved by binding arbitration conducted before a single arbitrator in
accordance with the American Arbitration Association's National Rules for the
Resolution of Employment Disputes then in effect ("AAA's National Rules"). In
the event that such a dispute arises, counsel for both Employee and Company will
attempt to jointly select an arbitrator. If unable to do so, the procedures
outlined in the AAA's National Rules shall govern. Unless otherwise agreed to by
Employee and Company, the arbitration shall take place in AAA's office closest
to the Company's headquarters.
12. This Agreement sets forth the entire Agreement between Employee and
Releasees. No one has promised Employee anything that is different from what is
set forth in this Agreement. No other promises or agreements shall be binding
upon Employee or Releasees with respect to the subject matter of this Agreement
unless separately agreed to in writing.
13. This Agreement has been made in California and California law
applies to it. If any part is found to be invalid, the remaining parts of the
Agreement will remain in effect as if there were no invalid part.
14. Employee has the right to revoke this Agreement within seven (7)
days of signing it. To revoke this Agreement, Employee must send a written
letter by certified mail to: Xxxxxx Goer, Intraop Medical Corporation, 000 Xxx
Xxx Xxxxxx, Xxxxxxxxx, XX 00000. If Employee revokes this Agreement, Employee
will not be entitled to the compensation described in section 3 above.
/s/ Xxxxx Xxxxxxx 7/2/2008
------------------ --------
Xxxxx X. Xxxxxxx Date
Intraop Medical Corporation
/s/ Xxxxxx Goer 7/2/2008
----------------- --------
Xxxxxx X. Goer Date
Chief Scientist
EXHIBIT A
---------
1. Provided that Employee has not materially breached the Agreement, in the
event that firm orders are received from any of the accounts listed below
by 12/31/08, Employee will receive a bonus of $40,000 per account starting
with the second such firm order received (no bonus payment is due on the
first order).
Accounts eligible for bonus payment are:
a) Xxxx Xxxx Hospital
b) Xxxx Memorial Hospital
c) Xxxxxx Hospital, Sacramento
d) Other hospitals on the West Coast that are mutually agreed in writing
will be eligible for the bonus payment.
2. Provided Employee receives prior written consent from an authorized agent
of the Company prior to incurring such expenses, the Company shall
reimburse Employee for all reasonable travel expenses incurred by Employee
in securing these firm orders.
3. Employee shall submit all statements for compensation and expenses in a
form prescribed by the Company and such statements shall be approved by the
contact person listed in the Agreement.
EXHIBIT B
---------
I-phone
Laptop computer, printer, and all home office equipment.
Directories of professional societies
Current issue of Xxxxxxxxx & Xxxxxx text book
