CONFIDENTIAL SEPARATION AGREEMENT AND RELEASE
THIS CONFIDENTIAL SEPARATION AGREEMENT AND RELEASE ("Agreement") with an
effective date of June ______, 2004 ("Effective Date") is made and entered into
by and between Cytomedix, Inc. ("Cytomedix" or "Company") and Xxxx X. Xxxxx
(hereinafter referred to as "Employee"). This Agreement sets forth the terms
upon which the Company and the Employee have agreed to terminate Employee's
employment with the Company.
1. Termination of Employment:
1.1 Employee hereby tenders his voluntary resignation as President of the
Company as of the Effective Date. The Company hereby accepts such resignation.
2. Resignation as Director:
2.1 Employee hereby tenders his voluntary and irrevocable resignation as a
member of the Company's Board of Directors as of the Effective Date.
3. Consideration:
3.1 Employee agrees that this Agreement contains compensation or benefits
to which the Employee is not otherwise entitled.
3.2 Pursuant to the letter agreement between the Company and the Executive
dated March 25, 2004 ("Employment Agreement") and the Stock Option Grant Notice
issued in conjunction therewith, the Employee received options to purchase
175,000 shares of the Company's common stock at a price of $1.50 per share.
These options were to vest on November 15, 2004, unless the Company terminated
the Employee without cause prior to such date, in which case 1/12th of the
options vested on the 15th day of each month beginning on November 15, 2003, and
continuing until the date of termination. In consideration of this Agreement,
the Company agrees to the following:
(a) Of the 175,000 options awarded to Employee on November 15, 2003,
25,000 shall expire immediately, the remaining 150,000 shall continue to vest as
per the original vesting schedule as provided in the Stock Option Grant Notice.
Accordingly, 12,500 options shall vest on the 15th day of each month beginning
on December 15, 2003. As of June 15, 2003, 87,500 options have vested. As of
November 15, 2004, all 150,000 options shall have vested.
(b) Notwithstanding the language in the Stock Option Agreement between the
Company and the Employee, the options shall remain exercisable for a period of
five years from the date of original grant, so that all options awarded to
Employee shall expire on November 15, 2008.
(c) The shares underlying the options awarded Employee shall be included
on any registration statement filed with the Securities and Exchange Commission
with respect to the shares of common stock underlying the Company's Long-Term
Incentive Plan.
3.3 In consideration of this Agreement, the Employee shall continue to
receive his regular salary from the date of this Agreement until July 31, 2004.
3.4 Premiums for the medical and dental programs that Employee is
currently enrolled in shall continue to be paid by the Company until July 31,
2004; provided, however, that Employee shall continue to pay the employee
portion of such premiums.
4. Confidentiality:
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4.1 Employee agrees that the nature, terms, conditions, and substance of
this Agreement shall be kept confidential by him, his attorneys, and spouse; and
shall not be disclosed at any time to any other person or entity at all without
the prior written consent of Company, except as necessary in the course of: (1)
preparing and filing appropriate tax returns or dealing with federal or state
taxing authorities; and (2) the performance of personal or business financial
planning. In addition, any term of this Agreement may be disclosed during any
lawsuit or other proceeding brought to enforce the terms of this Agreement or as
required by applicable law, legal subpoena or court order.
4.2 Employee agrees that upon the receipt of a subpoena or other legal
request for information contained in or regarding the nature, terms, conditions,
or substance of this Agreement, Employee shall promptly notify Company in
writing of such request and shall give Company the opportunity to object to the
disclosure of such information before responding to any such request. Such
written notification shall be sent to Company via certified mail.
5. No Current Claims:
5.1 Employee warrants and represents that he is not presently a named
plaintiff in any law suit, filed in any jurisdiction, against Company and that
he has not filed a charge with the EEOC or any other administrative agency
against Company. In the event that this warranty and representation is
incorrect, Company shall have the absolute right to terminate this Agreement,
and to demand and have immediately returned to Company all consideration paid by
it to Employee pursuant to this Agreement.
5.2 Company is hereby indemnified and held harmless by Employee for any
breach of the warranty and representation contained in this Section 5, and to
recover from Employee all costs and expenses incurred as a result of Employee's
breach of the warranty and representation contained in this Section 5, and all
costs and expenses incurred in defending any now pending legal or administrative
proceeding, not referenced in this Section 5, in which Employee is a named
plaintiff, claimant or petitioner. Costs and expenses, for purposes of this
Section 5, shall include, but not be limited to, attorneys' fees and other legal
costs.
6. Covenant Not to Xxx and Release:
6.1 Except for the rights and obligations provided by or arising under
this Agreement, Employee hereby releases, acquits, withdraws, retracts and
forever discharges any and all claims, manner of actions, causes of action, in
law or in equity, suits, judgments, debts, liens, contracts, agreements,
promises, liabilities, demands, damages, losses, costs, expenses or disputes,
known or unknown, fixed or contingent, which he now has or may have hereafter,
directly or indirectly, personally or in a representative capacity, against
Company, and its predecessors, successors, administrators, attorneys,
fiduciaries, officers, directors, shareholders, representatives, agents,
employees, and all persons acting through or in connection with Company, by
reason of any act, omission, matter, cause or thing whatsoever, from the
beginning of time to, and including, the Effective Date. This General Release
includes, but is not limited to, all claims, manner of actions, causes of action
in law or in equity, suits, judgments, debts, liens, contracts, agreements,
promises, liabilities, demands, damages, losses, costs, expenses or disputes,
known or unknown, fixed or contingent, which arise under the Employment
Agreement; Title VII of the Civil Rights Act of 1964, as amended; The Age
Discrimination in Employment Act of 1967, as amended; The Americans with
Disabilities Act; The Rehabilitation Act of 1973, as amended; The Family and
Medical Leave Act, as amended; 42 U.S.C. xx.xx. 1981 through 1988, as amended;
the Arkansas Constitution or Arkansas statutory law, as amended; any federal,
state or local statute or ordinance, all as amended; common law claims of breach
of contract, intentional or negligent infliction of emotional distress,
negligent hiring, breach of the covenant of good faith and fair dealing,
promissory estoppel, negligence, wrongful termination or employment,
interference with prospective economic advantage, violation of civil rights and
all other claims of any type or nature including any claims for attorneys' fees.
The parties intend that this release shall discharge all claims against the
released parties to the extent permitted by law.
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6.2 Employee represents and warrants that he has not heretofore assigned
or transferred, or purported to assign or transfer, to any person or entity, any
claim that is a subject of this Agreement or any portion thereof or interest
therein, and agrees to indemnify, defend, and hold Company harmless from any and
all claims based on or arising out of any such assignment or transfer, or
purported assignment or transfer, of any claims, or any portion thereof or
interest therein.
6.3 Nothing in this Agreement is or should be construed as a release by
Employee of, or an agreement by Employee not to xxx on, any charges, complaints,
claims, liabilities, obligations, promises, agreements, controversies, damages,
costs, losses, debts, or expenses arising out of any matter, cause, acts,
conduct, claims, or events which may occur after the Effective Date.
7. No Admission of Liability or Wrongdoing:
7.1 Company and Employee agree and acknowledge that this Agreement is the
result of a compromise and shall never at any time for any purpose be construed
as an admission of any liability or wrongdoing on the part of any party. Company
specifically disclaims any liability to Employee or to any other person or
entity.
8. Confidentiality of Trade Secrets; Covenant Not to Compete
8.1 During the term of Employee's employment by Company, Employee has
acquired knowledge of confidential and proprietary information regarding, among
other things, Company's products and intellectual property, Company's present
and future operations, its current or potential customers, pricing strategies,
its compensation and incentive programs for employees and the methods used by
Company and its employees. Employee hereby agrees that he shall not directly or
indirectly use or disclose, any of the Company's Trade Secrets, as defined
hereinafter, that he may have acquired during the term of his employment. The
term "Trade Secret" as used in this Agreement shall mean information including,
but not limited to, technical or non-technical data, a formula, a pattern, a
compilation, a program, a device, a method, a technique, a drawing, a process,
financial data, financial plans, product plans, or a list of actual or potential
customers which:
(a) derives economic value, actual or potential, from not being generally
known to, and not being readily ascertainable by proper means by, other persons
who can obtain economic value from its disclosure or use; and
(b) is the subject of reasonable efforts by the Company to maintain its
secrecy.
8.2 Employee agrees and acknowledges that the confidentiality and
non-compete provisions contained in Exhibit A to the Employment Agreement shall
continue to apply to Employee as provided therein.
8.3 Employee agrees and acknowledges that, if a violation of any covenant
contained in Section 8 and Exhibit A to the Employment Agreement occurs or is
threatened, such violation or threatened violation will cause irreparable injury
to Company, that the remedy at law for any such violation or threatened
violation will be inadequate and that Company shall be entitled to appropriate
equitable relief.
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9. Property:
9.1 Employee agrees, warrants and represents that within seven days of
execution of this Agreement he will return all records, files, memoranda,
reports, price lists, customer lists, employee lists, employee files, drawings,
plans, sketches, documents, and the like (together with all copies thereof)
relating to the business of the Company, which Employee shall have used or
prepared or come in contact with in the course of, or as a result of, his
employment and agrees that he shall not hereafter cause removal of such
materials from the premises of the Company. Employee further agrees that upon
execution of this Agreement he will return all files, notes, documents and the
like related to his employment, including but not limited to any audio tapes of
conversation(s) with any current of former Company employee(s). Employee further
warrants and represents that within seven days of execution of this Agreement he
will return all office equipment and other items, all Company credit cards,
keys, parking cards, and all other property of every type and description
belonging to Company.
10. No Disparaging Statement:
10.1 Company and Employee shall refrain from making any disparaging
statement about the other or about any of Company's personnel.
11. Voluntary Agreement:
11.1 Employee represents and agrees that he has had a full and adequate
opportunity to discuss and consider any claims against the Company. Further,
Employee represents and agrees that: (1) this Agreement is written in a manner
that he understands; (2) this Agreement and the promises made in this Agreement
by Employee are granted in exchange for the consideration which is granted to
Employee in this Agreement; (3) Employee has been advised to and has had an
opportunity to consult with an attorney prior to deciding whether to enter into
this Agreement; and (4) Employee has been given at least twenty-one days within
which to consider this Agreement.
11.2 This Agreement is executed with the full knowledge and understanding
on the part of Employee that there may be more serious consequences, damages or
injuries, which are not now known, and that any payment or benefits conferred
herein to Employee in consideration of this Agreement are accepted as final.
Employee further agrees and represents that it is within his contemplation that
he may have claims against Company of which, at the time of the execution of
this Agreement, he has no knowledge or suspicion, but he agrees and represents
that this Agreement extends to all claims in any way based upon, connected with
or related to the matters released herein, whether or not known, claimed or
suspected by him.
11.3 Company and Employee represent and acknowledge that in executing this
Agreement, they did not rely upon and have not relied upon any written or oral
representations or statements not expressly a part hereof that have been made by
any party to this Agreement, or by the agents, representatives, or attorneys of
any party with regard to the subject matter, basis, or effect of this Agreement.
12. Advised to Consult an Attorney:
12.1 EMPLOYEE SHOULD CONSULT WITH AN ATTORNEY PRIOR TO SIGNING THIS
AGREEMENT.
13. Period for Review and Consideration:
13.1 Employee acknowledges that he received a copy of this Agreement and
was given a period of twenty-one days in which to review, consider and accept
the Agreement.
14. Employee's Right to Revoke:
14.1 Employee is advised that he may revoke this Agreement within seven
days of signing it. Revocation must be made by delivering written notice of the
revocation to Xx. Xxxxxxx Xxxxx. If this Agreement is revoked by Employee in
this seven day period, the Agreement will not be effective and enforceable as it
relates to the Employees resignation as President of the Company.
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15. Reserved
16. Entire Agreement:
16.1 This Agreement sets forth the complete and exclusive statement of the
terms of the agreement between the parties hereto and fully supersedes any and
all prior agreements (oral or in writing) or understandings between the parties
hereto pertaining to the subject matter hereof.
17. Successors:
17.1 This Agreement shall be binding upon Employee and upon his heirs,
administrators, representatives, executors, and assigns. This Agreement shall
inure to the benefit of Company and its successors, and past, current and future
fiduciaries, officers, directors, shareholders, administrators, agents,
employees, and assigns.
18. Governing Law:
18.1 This Agreement shall be construed in accordance with the laws of the
State of Arkansas.
19. Modifications:
19.1 This Agreement may be amended or modified only by a written
instrument, signed by Company and Employee, that expressly sets forth the
parties' intention to amend or modify this Agreement. No condition, term, or
provision of this Agreement may be waived by any party except in writing, signed
by the party or its authorized representative, that expressly sets forth the
party's intention to waive a condition, term or provision of this Agreement.
20. Severability:
20.1 Should any provision of this Agreement be declared or be determined
by any court to be illegal or invalid, the validity of the remaining parts,
terms, or provisions shall be deemed not to be affected.
21. Authority to Execute Agreement:
21.1 Company represents and warrants that this instrument is a valid and
binding corporate action and that the person executing this instrument on behalf
of Company is duly authorized to do so on behalf of the Company.
EMPLOYEE COMPANY
CYTOMEDIX, INC.
/s/ Xxxx X. Xxxxx /s/ Xxxxxxx Xxxxx
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Xxxx X. Xxxxx Xxxxxxx Xxxxx
Chief Executive Officer
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