EXHIBIT 10.20
MUTUAL GENERAL RELEASE
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This Mutual General Release (this "Agreement") is made and entered into
as of January 27, 2005 by and between Xxxxxxxx Xxxxxx ("Xx. Xxxxxx") and The
RiceX Company (the "Company"). Xx. Xxxxxx and the Company are sometimes referred
to herein, individually, as a "Party" and, collectively, as the "Parties."
RECITALS
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WHEREAS, Xx. Xxxxxx is employed by the Company as its Chief Executive
Officer and serves as a director on its Board of Directors; and
WHEREAS, Xx. Xxxxxx has indicated his desire to resign his employment
by the Company as its Chief Executive Officer, and as a director on its Board of
Directors concurrently with the execution of this Agreement; and
WHEREAS, Xx. Xxxxxx and the Company desire to fully and finally resolve
all matters between them arising out of or related to Xx. Xxxxxx'x employment
with, and resignation from, the Company on the terms and conditions set forth
herein.
AGREEMENT
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NOW, THEREFORE, in consideration of the foregoing recitals and the
representations contained herein, and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, Xx. Xxxxxx and the
Company agree as follows:
1. RESIGNATION. Effective January 28, 2005 (the "Effective
Date"), Xx. Xxxxxx will resign from his employment with the Company as Chief
Executive Officer and will resign as a director from the Company's Board of
Directors.
2. SEVERANCE. The Company shall pay Xx. Xxxxxx One Hundred and
Fifty Thousand Dollars and No Cents ($150,000.00) in severance pay, inclusive of
any vacation pay or other amounts which may be owed by the Company to Xx. Xxxxxx
pursuant to Company policy, contract or applicable law, on the eighth (8th) day
following Xx. Xxxxxx'x execution of this Agreement. The Company will issue the
appropriate W-2 form in accordance with state and federal law, and the
regulations of the Internal Revenue Service on the severance monies paid.
3. FORM 8-K DISCLOSURES. Xx. Xxxxxx shall be provided with an
opportunity to review and approve the proposed disclosures that the Company is
required to make on Form 8-K, and file with the United States Securities and
Exchange Commission, that are relevant to his resignation prior to the Company
making such filing. Such approval, however, shall not be unreasonably
conditioned, withheld or delayed. Should Xx. Xxxxxx fail to provide his written
comments by January 27, 2005, he will be deemed to have waived his right to
approve the disclosures referred to above in this section. Additionally, by no
later than January 27, 2005,
Xx. Xxxxxx shall provide the Company and its counsel with a letter addressed to
the Company stating that he agrees (or disagrees) with the statements made by
the Company in the Form 8-K.
4. STOCK OPTIONS. As set forth in that certain Non-Statutory
Stock Option Agreement (the "Option Agreement"), dated June 25, 2004, Xx. Xxxxxx
received options to purchase 300,000 shares of the Company's common stock
pursuant to the Company's 1997 Stock Option Plan (the "Plan"), of which amount
100,000 options are vested (the "Vested Options") as of the Effective Date. To
the extent not previously exercised, Xx. Xxxxxx shall be entitled to exercise
the Vested Options for a period of three (3) years from the Effective Date, upon
and subject to all other terms and conditions of the Option Agreement and the
Plan. The unvested portion of the option granted in the Option Agreement shall
terminate on the Effective Date.
5. RELEASE.
(a) Xx. Xxxxxx'x Release of the Company. Xx. Xxxxxx, on
his own behalf, and on behalf of his heirs, executives, administrators,
successors, and assignees, releases by this Agreement the Company and each of
its past and present agents, employees, representatives, officers, directors,
shareholders, attorneys, accountants, insurers, receivers, advisors,
consultants, partners, partnerships, related companies, parents, divisions,
subsidiaries, assigns, successors, heirs, predecessors-in-interest, joint
venturers, and commonly controlled corporations (collectively, "Releasees") from
all liabilities, causes of action, charges, complaints, suits, claims,
obligations, costs, losses, damages, injuries, rights, judgments, attorneys'
fees, expenses, bonds, bills, penalties, fines, and all other legal
responsibilities of any form whatsoever whether known or unknown, whether
suspected or unsuspected, whether fixed or contingent, including those arising
under any theory of law, whether common, constitutional, statutory or otherwise
of any jurisdiction, foreign or domestic, whether known or unknown, whether in
law or in equity, which he had or may claim to have against any of them by
reason of any and all acts or omissions of Releasees from the beginning of time
to the present, including, but not limited to, those arising out of his
employment with and/or separation from the Company. Xx. Xxxxxx specifically
releases claims under all applicable city, county, state and federal laws,
including but not limited to, Title VII of the Civil Rights Act of 1964, as
amended, the Americans with Disabilities Act, the Age Discrimination in
Employment Act, the Fair Labor Standards Act, the Rehabilitation Act of 1973,
the Family Medical Leave Act, the Employee Retirement Income Security Act, the
Consolidated Omnibus Reconciliation Act of 1986, and the California Fair
Employment and Housing Act, California Labor Code, including Sections 200 et
seq., 970, and 132a, the California Constitution and Civil Code, the Workers'
Compensation Act, the Equal Pay Act, and the California Business and Professions
Code; as well as all common law claims, whether arising in tort or contract,
including, but not limited to, wrongful termination in violation of public
policy, breach of contract, breach of the covenant of good faith and fair
dealing, intentional interference with contractual relations, intentional
infliction of emotional distress, and discrimination in violation of public
policy (collectively referred to as "Released Matters").
(b) Release of ADEA Claims. The general release above
includes a waiver of rights and claims which Xx. Xxxxxx may have arising under
the Age Discrimination in Employment Act of 0000 (Xxxxx 00, Xxxxxx Xxxxxx Code,
Sections 621, et seq.) ("ADEA"). Xx. Xxxxxx is advised to consult with his
attorney regarding his waiver of rights and claims
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under ADEA. Xx. Xxxxxx understands that by signing this release, he waives his
rights and claims under ADEA. Xx. Xxxxxx understands that he is not waiving his
rights or claims under ADEA that may arise after the effective date of this
fully executed Agreement.
Xx. Xxxxxx further understands that:
(i) He has a period of up to twenty-one (21)
days from receipt of this Agreement to consider whether he wishes to execute
this Agreement; and
(ii) He has a period of seven (7) days,
commencing with the day after the date of his signature on this Agreement, to
revoke his signature and cancel his agreement to waive his rights under ADEA.
Xx. Xxxxxx understands that this Agreement shall not be effective until the
seven-day period has expired.
(c) The Company's Release of Xx. Xxxxxx. The Company, on
its own behalf, and on behalf of its successors and assignees, releases by this
Agreement Xx. Xxxxxx and his past and present agents, representatives,
attorneys, accountants, insurers, advisors, consultants, partners, assigns,
successors, heirs, predecessors-in-interest, and joint venturers (collectively,
"Releasees") from all liabilities, causes of action, charges, complaints, suits,
claims, obligations, costs, losses, damages, injuries, rights, judgments,
attorneys' fees, expenses, bonds, bills, penalties, fines, and all other legal
responsibilities of any form whatsoever whether known or unknown, whether
suspected or unsuspected, whether fixed or contingent, including those arising
under any theory of law, whether common, constitutional, statutory or otherwise
of any jurisdiction, foreign or domestic, whether known or unknown, whether in
law or in equity, which it had or may claim to have against any of them by
reason of any and all acts or omissions of Releasees from the beginning of time
to the present, including, but not limited to, those arising out of Xx. Xxxxxx'x
employment with and/or separation from the Company. The Company specifically
releases claims under all applicable city, county, state and federal laws, as
well as all common law claims, whether arising in tort or contract, including,
but not limited to, breach of contract, breach of the covenant of good faith and
fair dealing, and intentional interference with contractual relations (also
collectively referred to as "Released Matters").
6. NO CLAIMS OR ACTIONS. Xx. Xxxxxx and the Company agree that
they will not bring against each other any claim or action, civil or criminal,
before any state or federal agency, court or other tribunal in any jurisdiction,
which relates in any way to any and all matters, including the Released Matters
set forth in Sections 5 through 8 herein, from the beginning of time to the
present, including, but not limited to, Xx. Xxxxxx'x employment with and/or
resignation from the Company. In addition, the Parties shall not authorize,
approve or assist any third party to take any action that either Party is
prohibited from taking pursuant to the terms of this Agreement.
7. WAIVER OF UNKNOWN CLAIMS. With respect to the Released Matters
described herein, Xx. Xxxxxx and the Company expressly waive any and all rights
under Section 1542 of the California Civil Code, and any like provision or
principal of common law in any foreign jurisdiction. Section 1542 provides as
follows:
SECTION 1542. [CERTAIN CLAIMS NOT AFFECTED BY GENERAL RELEASE]
A GENERAL RELEASE DOES NOT
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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.
8. RELEASE OF DOUBTFUL AND DISPUTED CLAIMS. Notwithstanding the
provisions of Section 1542, and for the purpose of implementing a full and
complete release and discharge of all matters released herein, including the
Released Matters, Xx. Xxxxxx and the Company expressly acknowledge that this
Agreement is intended to include, without limitation, claims and causes of
action which they do not know or suspect to exist in their favor at the time of
execution hereof, and that this Agreement contemplates extinguishment of all
such claims and causes of action.
9. THE PARTIES' PREVIOUSLY EXECUTED CONFIDENTIAL INFORMATION
AGREEMENT. Notwithstanding the execution of this fully integrated Agreement, to
the fullest extent permitted by law, the Parties expressly agree to remain bound
by the terms and provisions of the Confidential Information Agreement executed
by the Parties on or about June 14, 2004 except that, as consideration for Xx.
Xxxxxx'x covenants and promises contained herein, the Company hereby agrees to
waive any and all contractual rights it possesses pursuant to Section 3(b)(1) of
the aforementioned Confidential Information Agreement, and the parties agree
that the last sentence of Section 3(b) hereby is deleted. Upon execution of this
Agreement, Section 3(b)(1) of the Confidential Information Agreement shall be
null and void and of no force and effect. Such terms and provisions of the
Confidential Information Agreement are expressly incorporated by reference
herein and a copy of that agreement has been attached hereto as EXHIBIT "A". The
Company expressly reserves any common law or other rights it may have with
respect to the subject matters of the Parties Confidential Information
Agreement, including Section 3(b)(1).
10. RETURN OF COMPANY PROPERTY. Xx. Xxxxxx acknowledges that in
the course and scope of his job responsibilities, he was provided with certain
Company property, including, but not limited to, the following: a 2004 BMW 745
series automobile (the "BMW Automobile"), a laptop computer, a flat screen
monitor, a computer stand and a replicator. Xx. Xxxxxx further acknowledges that
he had access to, and was provided, certain files, in written and software form,
pertaining to the Company, as well as certain books, and/or records of the
Company. Xx. Xxxxxx hereby agrees to return to the Company immediately upon
execution of this Agreement the following: (i) the aforementioned Company
property, including, but not limited to, the execution and delivery of an
assignment in form and content acceptable to Xxxxxx and the Company to transfer
leasehold title to the BMW Automobile and the payment obligation therefor to the
Company; (ii) any other equipment or Company property whether or not provided to
him by the Company and whether or not listed herein; (iii) all books, records
and/or files of the Company, in whatever form; and (iv) any other confidential
and/or proprietary documents and/or information in his possession, custody or
control. It is agreed that the Company shall have no obligation to fulfill its
obligations hereunder unless and until Xx. Xxxxxx fully complies with the
provisions of this section to the satisfaction of the Company.
11. NON-DISPARAGEMENT. The Parties on their own behalf and behalf
of successors and assignees agree that they will not publish or communicate in
any way any information or
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opinions intended or likely to damage the business or personal reputations of
the other Party.
12. FULL AND INDEPENDENT KNOWLEDGE. Xx. Xxxxxx represents that he
has thoroughly read this Agreement; that he fully understands all of the
provisions of this Agreement; that he agrees to its terms; and that he is
voluntarily entering into this Agreement.
13. NO RELIANCE. Xx. Xxxxxx represents and acknowledges that in
executing this Agreement, he does not rely and has not relied upon any
representations or statements made by the Company, or by any of its agents,
representatives or attorneys, with regard to the subject matter, basis or effect
of this Agreement or otherwise, other than as specifically stated in this
written Agreement.
14. NO ADMISSION OF WRONGDOING. This Agreement effects the
settlement of any actual or potential disputes between the Parties which are
denied and contested, and nothing contained herein should be construed as an
admission by either Party of any liability of any kind whatsoever with respect
thereto. All such liability is expressly denied.
15. BINDING. This Agreement shall be binding upon Xx. Xxxxxx and
upon his heirs, administrators, representatives, executors, successors and
assigns, and shall inure to the benefit of Releasees, and each of them, and to
their heirs, administrators, representatives, executors, successors and assigns,
upon whom this Agreement shall also be binding.
16. CONSTRUCTION OF THIS AGREEMENT.
(a) Choice of Law. This Agreement is made and entered
into in the State of California, and shall in all respects be interpreted,
enforced and governed by and under the laws of the State of California.
(b) No Modifications Unless In Writing. The Parties to
this Agreement agree that any modification of this Agreement must be in writing
signed by Xx. Xxxxxx and the Company, and must refer specifically to this
Agreement and the provisions modified. No other modifications will be valid.
(c) Invalid Agreement Provisions. Should any provision of
this Agreement and/or any attachments hereto become legally unenforceable, no
other provision of this Agreement and/or any attachments hereto shall be
affected, and this Agreement and any attachments shall be construed as if they
had never included the unenforceable provision.
(d) No Other Agreements. Except as expressly set forth
herein, this Agreement, including any attachments hereto, shall be and
constitute a full, complete, unconditional and immediate substitution for any
and all rights, claims, demands and causes of action whatsoever, which
heretofore existed or might have existed on behalf of any Party against any
other Party and their successors, predecessors, subsidiaries, affiliates,
parents, shareholders, partners, employees, agents, officers and directors.
Except as expressly set forth herein, this Agreement, including any attachments
hereto, supersedes any and all agreements, whether written or oral, that may
have previously existed between the Parties and constitutes the entire and
complete agreement of the Parties relating in any way to the subject matter
hereof. No statements, promises or representations have been made by any Party
to any other, or relied
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upon, and no consideration has been offered, promised, expected or held out
other than as may be expressly provided herein.
(e) Attorneys' Fees. Each Party is to bear their own
attorneys' fees and costs in connection with the negotiation and the preparation
of this Agreement and the matters related thereto. If any action or proceeding
is brought to enforce or interpret the terms of this Agreement, the Party who is
determined to be the prevailing party in such matter shall be entitled to
reasonable attorneys' fees, costs and necessary disbursements, in addition to
any other relief to which that Party may be entitled.
(f) Further Assurances. The Parties shall execute,
acknowledge and deliver all such additional instruments, and shall all take such
further actions, as may be necessary or appropriate to make effective the
matters contemplated by this Agreement.
(g) Headings. Headings contained in this Agreement are
for convenience only and shall not be used in the interpretation of this
Agreement. Unless otherwise specified, references herein to sections are to be
sections of this Agreement. As used herein, the singular includes the plural,
and vice versa.
(h) Practices Inconsistent with this Agreement. No
provision of this Agreement shall be modified or construed by any practice that
is inconsistent with such provision, and failure by Xx. Xxxxxx or Releasees to
comply with any provision, or to require another Party to comply with any
provision, shall not affect the rights of any Party thereafter to comply or
require the other to comply.
(i) Agreement Jointly Negotiated. Each of the Parties
acknowledge that this Agreement was jointly negotiated and reviewed and approved
by them and their respective attorneys of record. The Agreement shall not be
construed by any court of law or equity against any Party solely by virtue of
any Party having drafted this Agreement.
17. EXECUTION IN COUNTERPARTS. This Agreement may be executed and
delivered in two or more counterparts, each of which, when so executed and
delivered, shall be the original, but such counterparts together shall
constitute but one and the same instrument.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first set forth above.
/s/ XXXXXXXX XXXXXX
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Xxxxxxxx Xxxxxx
THE RICEX COMPANY
By: /s/ XXX XXXXX
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Its: CEO
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