EXHIBIT 10.1
SEPARATION AGREEMENT
This Separation Agreement (this "AGREEMENT") is executed and delivered
as of July 31, 2003 by and between Xxxx X. Xxxxx ("XX. XXXXX") and Endocare,
Inc., a Delaware corporation (the "COMPANY"). Xx. Xxxxx and the Company each is
referred to herein as a "PARTY," and, collectively, as the "PARTIES."
RECITALS
WHEREAS, Xx. Xxxxx currently is an employee of the Company and the
Chairman of the Company's Board of Directors; and
WHEREAS, Xx. Xxxxx and the Company have mutually decided to end their
employment relationship, upon the terms and conditions set forth in this
Agreement;
NOW, THEREFORE, in consideration of the covenants and promises
contained herein, the Parties agree as follows:
1. AGREEMENT BY EMPLOYEE; SEVERANCE PAYMENT. Xx. Xxxxx hereby
voluntarily resigns from his employment with the Company, effective as of July
31, 2003. In consideration of Xx. Xxxxx' execution and delivery of this
Agreement, the Company shall pay to Xx. Xxxxx on the date of this Agreement
$375,000, less all applicable withholding (the "SEVERANCE PAYMENT").
Notwithstanding anything in this Agreement to the contrary, Xx. Xxxxx shall be
liable to repay to the Company the Severance Payment upon the occurrence of any
of the following events (each, a "Payment Cancellation Event"): (i) the
conviction of Xx. Xxxxx in a court of law, or entering a plea of guilty or no
contest to, any crime directly relating to Xx. Xxxxx' activities on behalf of
the Company during Xx. Xxxxx' employment with the Company; or (ii) successful
prosecution of an enforcement action by the Securities and Exchange Commission
against Xx. Xxxxx.
2. BOARD OF DIRECTORS. Xx. Xxxxx will continue as the Chairman of the
Company's Board of Directors, until the election of his successor or his earlier
resignation or removal.
3. WAGES AND VACATION PAY. The Company shall pay to Xx. Xxxxx all of
his wages and accrued and unused vacation time through July 31, 2003.
4. CONSULTING SERVICES. Concurrently with the Parties' execution and
delivery of this Agreement, the Parties shall execute and deliver a Consulting
Agreement, in the form attached hereto as EXHIBIT A (the "CONSULTING
AGREEMENT").
5. GENERAL RELEASE OF CLAIMS. In consideration of the Company's
execution and delivery of this Agreement and the Consulting Agreement, and the
Company's payment to Xx. Xxxxx of the Severance Payment, Xx. Xxxxx shall execute
and deliver a General Release of Claims, in the form attached hereto as EXHIBIT
B (the "GENERAL RELEASE").
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6. WAIVER OF RIGHTS UNDER SEPARATION BENEFITS PLAN. In consideration of
the Company's execution and delivery of this Agreement and the Consulting
Agreement, and the Company's payment of the Severance Payment, Xx. Xxxxx hereby
waives all rights to which he is or may at any time be entitled under the
Company's Executive Separation Benefits Plan dated July 17, 2002 (the
"SEPARATION BENEFITS PLAN"). The Separation Benefits Plan shall be of no further
force or effect as to Xx. Xxxxx.
7. COVENANT OF CONFIDENTIALITY. Xx. Xxxxx acknowledges that he has
executed a form of the Company's Employee Invention and Confidentiality
Agreement (the "INVENTION AND CONFIDENTIALITY AGREEMENT"), and that,
notwithstanding the termination of his employment, he shall continue to have an
obligation not to disclose or use any "Confidential Information" (as defined
therein) obtained during the course of his employment with the Company on the
terms set forth therein. Xx. Xxxxx further acknowledges and agrees that such
"Confidential Information" includes, without limitation and by way of example,
information regarding the Company's recruitment and hiring of personnel,
information regarding the Company's financing strategies, and information
regarding potential business partnerships and collaborations considered by the
Company.
8. NON-DISPARAGEMENT. Xx. Xxxxx shall not disparage or in any way
criticize the Company or its officers, directors, employees, products, services
or technology at any time in the future. Similarly, the Company shall not
disparage or in any way criticize Xx. Xxxxx at any time in the future. Nothing
contained in this SECTION 8 is intended to prevent Xx. Xxxxx or the Company from
testifying truthfully in any legal proceeding, or to prevent Xx. Xxxxx from
performing his duties as a member of the Company's Board of Directors, or as a
consultant to the Company.
9. RETURN OF PROPERTY, ETC.
(a) Except as provided below in SECTION 9(B), Xx. Xxxxx agrees that
all property (including, without limitation, all equipment, tangible proprietary
information, documents, records, notes, contracts and computer-generated
materials) furnished to or created or prepared by Xx. Xxxxx incident to his
employment belongs to the Company and shall be promptly returned to the Company
upon his execution of this Agreement. Notwithstanding the foregoing, for so long
as Xx. Xxxxx continues to serve as a member of the Company's Board of Directors,
Xx. Xxxxx shall be permitted to retain copies of any documents that are
necessary for Xx. Xxxxx to retain in connection with his continued service on
the Company's Board of Directors.
(b) Following his execution of this Agreement, Xx. Xxxxx shall have
the following rights: (i) to purchase his existing Company-provided laptop
computer for $500; (ii) to retain his rolodex and personal files; and (iii) to
have access to his Company voice-mail and e-mail accounts for six (6) months
from the date of this Agreement. In addition, provided that Xx. Xxxxx complies
with all of his obligations under this Agreement, the Consulting Agreement, the
General Release and all other agreements between the Company and Xx. Xxxxx, the
Company shall extend the obligations under Xx. Xxxxx' indemnification agreement
with the Company for a period of seven (7) years from the date of this
Agreement.
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10. CHOICE OF LAW. This Agreement, in all respects, shall be
interpreted, enforced and governed by and under the internal laws of the State
of California, without regard to conflicts of law principles.
11. SUCCESSORS AND ASSIGNS. Xx. Xxxxx shall have no right to assign and
shall not assign or purport to assign any rights or obligations under this
Agreement. This Agreement may be assigned or transferred by the Company; and
nothing in this Agreement shall prevent the consolidation, merger or sale of the
Company or a sale of any or all or substantially all of its assets. Subject to
the foregoing restriction on assignment by Xx. Xxxxx, this Agreement shall inure
to the benefit of and be binding upon each of the Parties; the affiliates,
officers, directors, agents, successors and assigns of the Company; and the
heirs, devisees, spouses, legal representatives and successors of Xx. Xxxxx.
12. ATTORNEYS' FEES. In the event that either Party asserts a claim for
breach of this Agreement or seeks to enforce its terms, the prevailing Party in
any such proceeding shall be entitled to recover costs and reasonable attorneys'
fees.
13. INTERPRETATION. This Agreement shall be construed as a whole,
according to its fair meaning, and not in favor of or against either Party.
Sections and section headings contained in this Agreement are for reference
purposes only, and shall not affect in any manner the meaning or interpretation
of this Agreement. Whenever the context requires, references to the singular
shall include the plural and the plural the singular.
14. AMENDMENTS; WAIVERS; REMEDIES. This Agreement may not be amended or
waived except by a writing signed by Xx. Xxxxx and by a duly authorized officer
of the Company. Failure to exercise any right under this Agreement shall not
constitute a waiver of such right. Any waiver of any breach of this Agreement
shall not operate as a waiver of any subsequent breaches. All rights or remedies
specified for a Party herein shall be cumulative and in addition to all other
rights and remedies of the Party hereunder or under applicable law.
15. INTEGRATION. This Agreement, together with any exhibits attached
hereto, is intended to be the final, complete and exclusive statement of the
Parties' agreement regarding the subject matter hereof and may not be
contradicted by evidence of any prior or contemporaneous statements or
agreements. Notwithstanding the foregoing, this Agreement shall not supersede or
otherwise affect any agreements previously or concurrently executed by Xx. Xxxxx
relating to the Company's proprietary information or intellectual property
rights, or relating to Xx. Xxxxx'x non-interference or non-solicitation
obligations relative to the Company's business or employees. To the extent that
the practices, policies or procedures of the Company, now or in the future,
apply to Xx. Xxxxx and are inconsistent with the terms of this Agreement, the
provisions of this Agreement shall control. Any subsequent change in Xx. Xxxxx'x
duties, position or compensation shall not affect the validity or scope of this
Agreement.
16. SEVERABILITY. If any provision of this Agreement shall be held by a
court or arbitrator to be invalid, unenforceable or void, such provision shall
be enforced to the fullest extent permitted by law, and the remainder of this
Agreement shall remain in full force and effect. In the event that the time
period or scope of any provision is declared by a court or arbitrator of
competent jurisdiction to exceed the maximum time period or scope that such
court or arbitrator deems enforceable, then such court or arbitrator shall
reduce the time period or scope to the maximum time period or scope permitted by
law.
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17. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original of this Agreement, but
all of which together shall constitute one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Parties hereby execute this Separation
Agreement as of the date first above written.
ENDOCARE, INC.
By: /s/ Xxxxxxx X. Xxxxx /s/ Xxxx X. Xxxxx
--------------------------------- ------------------------------
Name: Xxxxxxx X. Xxxxx Xxxx X. Xxxxx
Title: President & Chief Operating Officer
[SIGNATURE PAGE TO SEPARATION AGREEMENT]
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EXHIBIT A
---------
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "AGREEMENT") is executed and delivered as of
July 31, 2003 (the "EFFECTIVE DATE"), by and between Endocare, Inc., a Delaware
corporation (the "COMPANY"), and Xxxx X. Xxxxx ("CONSULTANT"). Each of the
Company and Consultant is referred to herein as a "PARTY," and, collectively, as
the "PARTIES."
RECITALS
WHEREAS, concurrently with the execution of this Agreement, the Company
and Consultant are executing and delivering a Separation Agreement (the
"SEPARATION AGREEMENT") pursuant to which the Company and Consultant are
terminating their employment relationship; and
WHEREAS, SECTION 4 of the Separation Agreement provides that the
Parties shall execute and deliver this Agreement;
NOW, THEREFORE, in consideration of the foregoing recitals, and the
representations, warranties, covenants and promises contained herein, the
adequacy and sufficiency of which are hereby acknowledged, the Parties agree as
follows:
AGREEMENT
1. SERVICES. During the Term (as defined below in SECTION 3),
Consultant shall provide consulting services (the "SERVICES") to the Company, as
and when requested by the Company, including, without limitation, requested
consultation regarding strategic transactions in which the Company is involved,
the Company's customers, suppliers, marketing plans, strategies and tactics, the
Company's employees, the Company's historical transactions, the Company's
competitors and other substantive and strategic issues relevant to the Company's
business. Consultant and the Company mutually shall determine the amount of the
Services that Consultant shall provide; PROVIDED, HOWEVER, that Consultant shall
perform the Services for a minimum of eight (8) hours per calendar quarter.
2. COMPENSATION.
(a) CASH COMPENSATION. In consideration of Consultant's execution
and delivery of this Agreement and the performance of the Services, the Company
shall pay to Consultant $375,000 on the Effective Date. Notwithstanding anything
in this Agreement to the contrary, Consultant shall be liable to repay to the
Company all amounts paid to Consultant pursuant to this SECTION 2(A) upon the
occurrence of any of the following events (each, a "Payment Cancellation
Event"): (i) the conviction of Consultant in a court of law, or entering a plea
of guilty or no contest to, any crime directly relating to Consultant's
activities on behalf of the Company during Consultant's employment with the
Company; or (ii) successful prosecution of an enforcement action by the
Securities and Exchange Commission against Consultant.
(b) BENEFITS. In consideration of Consultant's execution and
delivery of this Agreement and the performance of the Services, during the
twenty-four (24) month period immediately following the Effective Date,
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Consultant shall be permitted to continue to participate in the Company's fringe
benefit plans to the extent permitted under applicable law and the terms of such
plans. In the event that continued participation in the Company's insurance
benefit plans is not permissible, then Consultant shall receive a monthly
payment from the Company in an amount sufficient to enable him to purchase
insurance coverage that is substantially equivalent to what he would have
received had he been able to continue to participate in the Company's plans.
This coverage also shall extend to the spouse and dependents of Consultant who
were covered by the relevant fringe benefit plan on the Effective Date.
Notwithstanding the foregoing, the Company shall not be obligated to provide to
Consultant any fringe benefits that are otherwise available to Consultant from
another source (e.g., a subsequent employer).
(c) TREATMENT OF STOCK OPTIONS. In consideration of Consultant's
execution and delivery of this Agreement and the performance of the Services,
all stock options that the Company granted to Consultant prior to January 1,
2002 automatically shall continue to be subject to the option agreements that
govern such options. In consideration of the Company's execution and delivery of
this Agreement, Consultant agrees that the 200,000 stock options that the
Company granted to Consultant on June 26, 2002 shall be terminated, effective as
of the Effective Date.
(d) COSTS AND EXPENSES. The Company shall bear all costs and
expenses incurred in connection with Consultant's performance of the Services;
PROVIDED, HOWEVER, that Consultant shall not incur aggregate expenses in excess
of $10,000 without the Company's prior written consent.
3. TERM AND TERMINATION. The term of this Agreement (the "TERM") shall
commence on the Effective Date and shall continue until the first anniversary of
the Effective Date, unless terminated by either Party in accordance with this
SECTION 3. Either Party may terminate this Agreement immediately upon giving
written notice thereof to the other Party if the other Party materially breaches
any provision of this Agreement and fails to cure such breach within thirty (30)
days after receipt of written notice from the other Party of such breach.
4. SURVIVAL. The provisions of SECTIONS 2(B) (Benefits), SECTION 4
(Survival), SECTION 5 (Confidentiality), SECTION 6 (Non-Disclosure of Third
Party Information), SECTION 8 (Relationship of the Parties), SECTION 9 (Taxes),
SECTION 10 (Choice of Law), SECTION 11 (Successors and Assigns), SECTION 12
(Attorneys' Fees), SECTION 13 (Interpretation), SECTION 14 (Amendments; Waivers;
Remedies), SECTION 15 (Integration), SECTION 16 (Severability) and SECTION 17
(Counterparts) shall survive any termination of this Agreement. Consultant
agrees that all property (including, without limitation, all equipment, tangible
proprietary information, documents, records, notes, contracts and
computer-generated materials) furnished to or created or prepared by Consultant
incident to Consultant's engagement belongs to the Company and shall be promptly
returned to the Company upon termination of this Agreement. Consultant also
shall cooperate with the Company in the defense of any action brought by any
third party against the Company that relates to Consultant's engagement by the
Company or the Services.
5. CONFIDENTIALITY. Consultant understands that Consultant's work for
the Company will involve access to and creation of confidential, proprietary and
trade secret information and materials of the Company (collectively,
"CONFIDENTIAL INFORMATION"). Confidential Information includes, without
limitation, any confidential information, ideas or materials of a technical or
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creative nature, such as designs and specifications, patent applications and
other confidential materials and concepts relating to the Company's products,
services, processes, technology or other intellectual property rights.
Consultant shall not (a) use Confidential Information for any purpose whatsoever
other than the performance of the Services, or (b) disclose Confidential
Information to any third party.
6. NON-DISCLOSURE OF THIRD PARTY INFORMATION. Consultant represents and
warrants and covenants that Consultant shall not disclose to the Company, or
use, or induce the Company to use, any proprietary information or trade secrets
of others at any time, including but not limited to any proprietary information
or trade secrets of any former employer, if any; and Consultant acknowledges and
agrees that any violation of this provision shall be grounds for Consultant's
immediate termination and could subject Consultant to substantial civil
liabilities and criminal penalties. Consultant further specifically and
expressly acknowledges that no officer or other employee or representative of
the Company has requested or instructed Consultant to disclose or use any such
third-party proprietary information or trade secrets.
7. NON-COMPETITION COVENANT.
(a) In consideration of the Company's execution and delivery of
this Agreement, during the Term Consultant shall not engage in any Competitive
Activity (as defined below) in the Restricted Territory (as defined below).
(b) The term "COMPETITIVE ACTIVITY" shall mean: (i) any activity
specifically utilizing argon-based cryosurgical equipment or technology that
directly competes with the Company's argon-based cryosurgical equipment
products; or (ii) soliciting for employment or recommending for employment any
person employed by the Company during such person's employment with the Company
(or any affiliate of the Company) or for one (1) year thereafter.
(c) The term "RESTRICTED TERRITORY" shall mean every state,
territory, country or jurisdiction in which the Company carries on business as
of the Effective Date.
(d) Notwithstanding the foregoing, the provisions of this SECTION 7
shall not prevent Consultant from beneficially owning up to one percent (1%), on
a fully-diluted basis, of the total shares of all classes of stock outstanding
of any corporation having securities listed on the New York Stock Exchange or
the American Stock Exchange, or traded on Nasdaq.
(e) It is the understanding of the Parties that the scope of the
covenants contained in this Section 7, both as to time and area covered, are
necessary to protect the rights of the Company. It is the Parties' intention
that these covenants be enforced to the greatest extent (but to no greater
extent) in time, area and degree of participation as is permitted by the law of
that jurisdiction whose law is found to be applicable to any acts in breach of
these covenants. It being the purpose of this Agreement to govern competition by
Consultant in the Restricted Territory, these covenants shall be governed by and
construed according to that law (from among those jurisdictions arguably
applicable to this Agreement and those in which a breach of this Agreement is
alleged to have occurred or to be threatened) that best gives them effect. Each
prohibition set forth above in this SECTION 7 shall be deemed, and shall be
construed as, separate and independent agreements between Consultant and the
Company. If any such agreement or any part of such agreement is held invalid,
void or unenforceable by any arbitrator or court of competent jurisdiction, such
invalidity, voidness or unenforceability shall in no way render invalid, void or
unenforceable any other part of them or any separate agreement not declared
invalid, void or unenforceable; and this Agreement shall in such case be
construed as if the invalid, void or unenforceable provisions were omitted.
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(f) The Parties agree that the covenants of Consultant not to
compete contained in this SECTION 7 may be assigned by the Company to any person
to whom the Company may transfer all or part of its business or any portion
thereof after the date of this Agreement, whether by sale, merger, operation of
law or otherwise. It is the Parties' intention that these covenants shall inure
to the benefit of any person that may succeed to the Company's business or any
portion thereof with the same force and effect as if these covenants were made
directly with such successor.
(g) The Parties agree that, in the event of breach or threatened
breach of Consultant's covenants in this SECTION 7, the damage or imminent
damage to the value and the goodwill of the Company will be irreparable and
extremely difficult to estimate, making any remedy at law or in damages
inadequate. Accordingly, the Parties agree that the Company shall be entitled to
injunctive relief against Consultant in the event of any breach or threatened
breach of any of such covenants by Consultant, in addition to any other relief
(including, without limitation, damages) available to the Company under this
Agreement or under applicable law.
8. RELATIONSHIP OF THE PARTIES. This Agreement shall not be construed
as creating an agency, partnership, joint venture or any other form of
association, for tax purposes or otherwise, between the Parties; and the Parties
shall at all times be and remain independent contractors. Except as expressly
agreed by the Parties in writing, neither Party shall have any right or
authority, express or implied, to assume or create any obligation of any kind,
or to make any representation or warranty, on behalf of the other Party or to
bind the other Party in any respect whatsoever. Neither Party shall have any
obligation or duty to the other Party except as expressly and specifically set
forth herein, and no such obligation or duty shall be implied by or inferred
from this Agreement or the conduct of the Parties hereunder. Except as provided
above in SECTION 2 (Compensation), Consultant shall not be entitled to any of
the benefits that the Company may make available to its employees, such as group
health, life, disability or worker's compensation insurance, profit-sharing or
retirement benefits, and the Company shall not withhold or make payments or
contributions therefor or obtain such protection for Consultant.
9. TAXES. Consultant shall be solely responsible for all tax returns
and payments required to be filed with or made to any federal, state or local
tax authority with respect to Consultant's performance of the Services and
receipt of compensation under this Agreement. Consultant acknowledges and agrees
that it shall be Consultant's obligation to report as income all compensation
received by Consultant pursuant to this Agreement and to pay any withholding
taxes, self-employment taxes, and social security, unemployment or disability
insurance or similar items, including interest and penalties thereon, in
connection with any payments made to Consultant by the Company pursuant to this
Agreement. Consultant agrees to indemnify, hold harmless and, at the Company's
discretion, defend the Company against any and all liability related thereto,
including, without limitation, any taxes, penalties and interest the Company may
be required to pay as a result of Consultant's failure to report such
compensation or make such payments.
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10. CHOICE OF LAW. Except as otherwise provided in SECTION 7
(Non-Competition Covenant), this Agreement, in all respects, shall be
interpreted, enforced and governed by and under the internal laws of the State
of California, without regard to conflicts of law principles.
11. SUCCESSORS AND ASSIGNS. Consultant shall have no right to assign
and shall not assign or purport to assign any rights or obligations under this
Agreement. This Agreement may be assigned or transferred by the Company; and
nothing in this Agreement shall prevent the consolidation, merger or sale of the
Company or a sale of any or all or substantially all of its assets. Subject to
the foregoing restriction on assignment by Consultant, this Agreement shall
inure to the benefit of and be binding upon each of the Parties; the affiliates,
officers, directors, agents, successors and assigns of the Company; and the
heirs, devisees, spouses, legal representatives and successors of Consultant.
12. ATTORNEYS' FEES. In the event that either Party asserts a claim for
breach of this Agreement or seeks to enforce its terms, the prevailing Party in
any such proceeding shall be entitled to recover costs and reasonable attorneys'
fees.
13. INTERPRETATION. This Agreement shall be construed as a whole,
according to its fair meaning, and not in favor of or against either Party.
Sections and section headings contained in this Agreement are for reference
purposes only, and shall not affect in any manner the meaning or interpretation
of this Agreement. Whenever the context requires, references to the singular
shall include the plural and the plural the singular.
14. AMENDMENTS; WAIVERS; REMEDIES. This Agreement may not be amended or
waived except by a writing signed by Consultant and by a duly authorized officer
of the Company. Failure to exercise any right under this Agreement shall not
constitute a waiver of such right. Any waiver of any breach of this Agreement
shall not operate as a waiver of any subsequent breaches. All rights or remedies
specified for a Party herein shall be cumulative and in addition to all other
rights and remedies of the Party hereunder or under applicable law.
15. INTEGRATION. This Agreement, together with any exhibits attached
hereto, is intended to be the final, complete and exclusive statement of the
Parties' agreement regarding the subject matter hereof and may not be
contradicted by evidence of any prior or contemporaneous statements or
agreements. Notwithstanding the foregoing, this Agreement shall not supersede or
otherwise affect any agreements previously or concurrently executed by
Consultant relating to the Company's proprietary information or intellectual
property rights, or relating to Consultant's non-interference or
non-solicitation obligations relative to the Company's business or employees. To
the extent that the practices, policies or procedures of the Company, now or in
the future, apply to Consultant and are inconsistent with the terms of this
Agreement, the provisions of this Agreement shall control. Any subsequent change
in Consultant's duties, position or compensation shall not affect the validity
or scope of this Agreement.
16. SEVERABILITY. If any provision of this Agreement shall be held by a
court or arbitrator to be invalid, unenforceable or void, such provision shall
be enforced to the fullest extent permitted by law, and the remainder of this
Agreement shall remain in full force and effect. In the event that the time
period or scope of any provision is declared by a court or arbitrator of
competent jurisdiction to exceed the maximum time period or scope that such
court or arbitrator deems enforceable, then such court or arbitrator shall
reduce the time period or scope to the maximum time period or scope permitted by
law, except as otherwise provided in SECTION 7 (Non-Competition Covenant).
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17. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original of this Agreement, but
all of which together shall constitute one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Parties hereby execute this Consulting
Agreement as of the date first above written.
ENDOCARE, INC.
By:
------------------------------ ------------------------------
Name: Xxxxxxx X. Xxxxx Xxxx X. Xxxxx
Title: President & Chief Operating Officer
[SIGNATURE PAGE TO CONSULTING AGREEMENT]
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EXHIBIT B
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FORM OF GENERAL RELEASE OF CLAIMS
THIS GENERAL RELEASE OF CLAIMS (this "RELEASE") is executed and delivered as of
September __, 2003, by and between Endocare, Inc., a Delaware corporation (the
"COMPANY"), and the individual named on the signature page hereof (the
"Releasor"). Each of the Company and the Releasor is referred to herein as a
"PARTY," and, collectively, as the "PARTIES."
RECITALS
WHEREAS, concurrently with the execution of this Release, the Company
and the Releasor are executing and delivering a Separation Agreement (the
"SEPARATION AGREEMENT");
WHEREAS, pursuant to the terms and conditions of the Separation
Agreement, the Releasor is entitled to a cash payment and certain other
benefits, subject to, among other things, Releasor's execution and delivery of
this Release; and
WHEREAS, by execution hereof, the Releasor acknowledges and agrees
that: (i) this Release is a compromise of doubtful and disputed claims, if any,
which remain untested; (ii) there has not been a trial or adjudication of any
issue of law or fact herein; (iii) the terms and conditions of this Release are
in no way to be construed as an admission of liability on the part of the
Company; and (iv) the Company denies any liability and intends merely to avoid
litigation with this Release;
NOW, THEREFORE, in consideration of the foregoing recitals, and the
representations, warranties, covenants and promises contained herein, the
adequacy and sufficiency of which are hereby acknowledged, the Parties agree as
follows:
AGREEMENT
1. RELEASE OF THE COMPANY BY THE RELEASOR.
(a) The Releasor does hereby unconditionally, irrevocably and
absolutely release and discharge the Company, and its affiliates, directors,
officers, employees, agents, attorneys, representatives, stockholders, insurers,
divisions, successors and/or assigns and any related holding, parent or
subsidiary corporations, from any and all loss, liability, claims, costs
(including, without limitation, attorneys' fees), demands, causes of action, or
suits of any type, whether in law and/or in equity, related directly or
indirectly or in any way connected with any transaction, affairs or occurrences
between them and arising on or prior to the date of this Release, including, but
not limited to, the Releasor's employment with the Company, the termination of
said employment and claims of emotional or physical distress related to such
employment or termination. This Release specifically applies to any claims for
discrimination in employment, including, without limitation, any claims arising
under any statutes or laws that govern discrimination in employment.
(b) The Releasor irrevocably and absolutely agrees that he will not
prosecute nor allow to be prosecuted on his behalf in any administrative agency,
whether federal or state, or in any court, whether federal or state, any claim
or demand of any type related to any of the matters released above, it being an
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intention of the Parties that with the execution by the Releasor of this
Release, the Company, its officers, directors, employees, agents, attorneys,
representatives, successors and/or assigns, and any related holding, parent and
subsidiary corporations, will be absolutely, unconditionally and forever
discharged of and from all obligations to or on behalf of the Releasor related
in any way to the matters released above.
(c) The Releasor does expressly waive all of the benefits and rights
granted to him pursuant to any applicable law or regulation to the effect that:
A general release does not extend to claims which the creditor
does not know of 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.
(d) The Releasor does certify that he has read all of this Release, and
that he fully understands all of the same. The Releasor hereby expressly agrees
that this Release shall extend and apply to all unknown, unsuspected and
unanticipated injuries and damages, as well as those that are now known.
(e) The Releasor further declares and represents that no promise,
inducement or agreement not herein expressed has been made to him and that this
Release contains the full and entire agreement between the Parties relating to
the Releasor's release of claims, and that the terms of this Release are
contractual and not a mere recital.
2. REVIEW. The Releasor represents, acknowledges and agrees that: (i)
the Company has advised him, in writing, to discuss this Release with an
attorney, and that to the extent, if any, that the Releasor has desired, the
Releasor has done so; (ii) that no promise, representation, warranty or
agreements not contained herein have been made by or with anyone to cause him to
sign this Release; (iii) that he has read this Release in its entirety, and
fully understands and is aware of its meaning, intent, contents and legal
effect; and (iv) he is executing this Release voluntarily, and free of any
duress or coercion.
3. FULL AND COMPLETE DEFENSE. This Release may be pleaded as a full and
complete defense and may be used as the basis for an injunction against any
action, suit or proceeding that may be prosecuted, instituted or attempted by
the Releasor against the Company.
4. AMENDMENTS, ETC. This Release may not be amended or waived except by
a writing signed by the Releasor and by a duly authorized officer of the
Company. Failure to exercise any right under this Release shall not constitute a
waiver of such right. Any waiver of any breach of this Release shall not operate
as a waiver of any subsequent breaches. All rights or remedies specified for a
Party herein shall be cumulative and in addition to all other rights and
remedies of the Party hereunder or under applicable law.
5. ASSIGNMENT; BINDING EFFECT. The Releasor agrees that he shall have
no right to assign and shall not assign or purport to assign any rights or
obligations under this Release. This Release may be assigned or transferred by
the Company; and nothing in this Release shall prevent the consolidation, merger
or sale of the Company or a sale of any or all or substantially all of its
assets. Subject to the foregoing restriction on assignment by Employee, this
Release shall inure to the benefit of and be binding upon each of the Parties;
the affiliates, officers, directors, agents, successors and assigns of the
Company; and the heirs, devisees, spouses, legal representatives and successors
of Employee.
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6. SEVERABILITY. If any provision of this Release shall be held by a
court or arbitrator to be invalid, unenforceable or void, such provision shall
be enforced to the fullest extent permitted by law, and the remainder of this
Release shall remain in full force and effect. In the event that the time period
or scope of any provision is declared by a court or arbitrator of competent
jurisdiction to exceed the maximum time period or scope that such court or
arbitrator deems enforceable, then such court or arbitrator shall reduce the
time period or scope to the maximum time period or scope permitted by law.
7. GOVERNING LAW. This Release shall be governed by and construed in
accordance with the internal laws of the State of California, without regard to
conflicts of law principles.
8. INTERPRETATION. This Release shall be construed as a whole,
according to its fair meaning, and not in favor of or against any Party.
Sections and section headings contained in this Release are for reference
purposes only, and shall not affect in any manner the meaning or interpretation
of this Release. Whenever the context requires, references to the singular shall
include the plural and the plural the singular.
9. COUNTERPARTS. This Release may be executed in any number of
counterparts, each of which shall be deemed an original of this Release, but all
of which together shall constitute one and the same instrument.
10. AUTHORITY. Each Party represents and warrants that such Party has
the right, power and authority to enter into and execute this Release and to
perform and discharge all of the obligations hereunder; and that this Release
constitutes the valid and legally binding agreement and obligation of such Party
and is enforceable in accordance with its terms.
11. ENTIRE AGREEMENT. This Release is intended to be the final,
complete and exclusive statement of the terms set forth herein and may not be
contradicted by evidence of any prior or contemporaneous statements or
agreements.
12. OPPORTUNITY TO CONSULT LEGAL COUNSEL. The Releasor acknowledges
that he has had the opportunity to consult legal counsel concerning this
Release, that he has read and understands this Release, that he is fully aware
of its legal effect and that he has entered into this Release freely based on
his own judgment and not on any representations or promises other than those
contained in this Release.
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IN WITNESS WHEREOF, the Parties hereby execute this Release as of the
date first above written.
ENDOCARE, INC. RELEASOR:
By:
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Name: Signature
Title:
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Print Name
[SIGNATURE PAGE TO GENERAL RELEASE OF CLAIMS]
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