SEPARATION AGREEMENT AND WAIVER AND RELEASE OF ALL CLAIMS
Exhibit 10.9
AND
WAIVER AND RELEASE OF ALL CLAIMS
This Separation Agreement and Waiver and Release of all Claims (“Agreement”) is made and
entered into by and between Clarient, Inc. (the “Company”), and Xxxxxxx Land (“Executive” or
“Employee”), who is currently serving as the Senior Vice President and Chief Financial Officer, in
connection with the termination of employment of the Executive.
In resolution of any and all disputes, known and unknown, between the Company and Executive
arising from Executive’s employment with the Company, Executive’s Employment Agreement with the
Company, Executive’s termination from the Company, or otherwise, and in exchange for the
consideration to the Executive made under this Agreement, the Company and Executive covenant and
agree as follows:
1. Termination of Employment. Employment of the Executive with the Company and the
Company’s Affiliates will be terminated effective December 31, 2009 (the “Termination Date”). From
and after the Termination Date, Executive shall no longer be employed by, or act in any capacity
for, the Company or any of its Affiliates. For purposes of this Agreement, “Affiliate” means
Safeguard Scientifics, Inc. and Clarient Pathology Services, Inc.
2. Severance Payments. In exchange for the covenants and promises of Executive, and
subject to all of the terms and conditions contained in this Agreement, the Company agrees as
follows:
a) The Company shall pay to Executive an amount equal to twelve (12) months of Executive’s
base salary in effect as of the date of this Agreement, less applicable federal, state, and local
withholding taxes. Such payments shall be made whether or not Executive obtains new employment
during the period commencing on the Termination Date and ending on the twelve (12) month
anniversary thereof (the “Severance Period”) and will be made in accordance with the Company’s
standard payroll procedures; provided, however, that such payments shall cease immediately if
Executive violates any provision set forth in this Agreement. The first payment under this
provision shall be made by Company on the date when the seven-day release revocation period
expires, as set forth in Section 9.
b) The Executive will be able to exercise any options which have become vested and
exercisable on or before the termination date and until the earlier of (i) the first anniversary of
the date of termination or (ii) the expiration date of the option.
c) Executive shall be eligible to elect continued group health coverage for himself and his
eligible dependents in accordance with the rules and regulations of the Consolidated Omnibus Budget
Reconciliation Act of 1985 (“COBRA”). If Executive chooses such continuation health insurance
coverage, the Executive will only pay the amount paid by Executive during his employment and the
Company will subsidize the remaining costs which are normally the responsibility of the former
employee for twelve months or until the Executive obtains insurance through another employer,
whichever occurs sooner. Thereafter, Executive shall be solely responsible for paying the premiums
for COBRA continuation coverage. If Executive ceases to be eligible for COBRA because the Company
does not pay the premiums for its existing or group insurance policy or the Company ceases to have
a group healthcare plan, the Company will pay Executive, for any portion of the period referred to
above during which Executive’s COBRA eligibility ceases for such reasons, the amount of the premium
it would have had to pay for Executive’s coverage under the then existing, or if none, the most
recently existing, healthcare insurance policy. Executive should consult with the Company’s
Manager of Human Resources concerning the process for assuming ownership of and continued premium
payments for any life insurance policy.
d) Executive shall be paid a “pro rata portion” of his “bonus for the year of termination”
(as those terms are hereinafter defined). “Pro rata portion” means the number of days in the
calendar year of termination up to and including the Termination Date divided by the total number
of days in that full calendar year. The “bonus for the year of termination” means the amount the
Executive would have been likely to earn if he had been employed for the full year, as determined
in good faith by the Board of Directors of the Company or a committee thereof.
e) It is expressly understood by Executive that receipt of all compensation and benefits
described above in (a) through (d) of this Section 2 are contingent upon (i) the release of all
claims as set forth below in Sections 6 and 7; and (ii) Executive not engaging in Solicitation for
a period of one year from the Termination Date as set forth in Section 4. It is further
understood by the Executive that the conditions to receiving severance benefits will not prevent
him from obtaining employment or otherwise earning a living at the same general economic benefit as
reasonably required by him without losing the severance benefits. The Executive also acknowledges
that the provisions contained in this Agreement are reasonable and necessary to protect the
legitimate business interests of the Company and that the Company would not have entered into this
Agreement in the absence of such provisions. Executive will not be required to mitigate the amount
of any payment provided for in this letter by seeking other employment or otherwise. Therefore,
Executive shall be entitled to receive the severance payments provided herein without regard to
whether Executive obtains other employment.
3. Other Payments.
a) Executive shall be paid all accrued and unpaid salary to the Termination Date and accrued
but unused vacation earned through the Termination Date, less applicable federal, state, and local
withholding taxes. Executive shall also be reimbursed for all properly reimbursable expenses
incurred by him through the Termination Date.
4. Non-Solicitation. Executive shall not alone or in concert with others (A) solicit,
entice, or induce any Customer (as defined below) to become a client, customer, OEM, distributor,
or reseller of any other person or, firm or corporation with respect to, or provide, products or
services which are competitive with products or services then sold or under development by the
Company or to cease doing business with the company or authorize or knowingly approve the taking of
such actions by any other person, or (B) solicit, entice, or induce directly or indirectly, or hire
any person who presently is or at any time during the term of this Agreement is an employee of the
Company to become employed by any other person, firm or corporation or to leave his or her
employment with the Company or authorize or approve any such action by any other person or entity
for a period of one year commencing from the Termination Date. Providing a reference for an
employee of the Company will not, however, constitute Solicitation if the employee has decided to
leave the employ of the Company, is seeking other employment and requests the reference. Nothing
in this Section 4 will at any time prohibit Executive from hiring a former employee of the Company
whose employment with the Company was terminated through no act of Executive, and who was not
solicited directly or indirectly by Executive while the employee was employed by the Company.
(i) “Customer” means any person or entity that within the two (2) years prior to the
Termination Date was a client, customer, OEM, distributor, or reseller of the Company or a
bona fide prospect to become any of the foregoing.
5. Release of All Claims. In consideration of Paragraph 2 of this Agreement, and for
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Employee, on behalf of Employee and his heirs, hereby irrevocably, unconditionally
and completely releases, discharges and holds harmless the Company and its Affiliates of and from
any and all causes of actions, suits, debts, claims, and demands whatsoever in law or in equity,
which she ever had, now has, or hereafter may have or which his heirs, executors or administrators
may have, by reason of any matter, cause, or thing whatsoever, from the beginning of his employment
with the Company and/or the Company’s Affiliates to the date of this Agreement, and particularly,
but not without limitation, any claims arising from or relating in any way to his employment or the
separation of his employment relationship with the Company, including, but not limited to:
| • | Breach of express or implied contract, including any contract of employment, and
any employment-related torts or personal injuries (whether physical or mental),
including wrongful termination or discharge, intentional or negligent infliction of
emotional distress, defamation, interference with contractual relations, invasion
of the right to privacy, misrepresentation, negligence, conspiracy or otherwise; |
| • | Any federal or state law, including without limitation Title VII of the Civil
Rights Act of 1964 [42 USC Section 2000e (and following sections)], or any other
federal, state or local law that prohibits discrimination on the basis of race,
color, religion, sex, age, national origin, ancestry or disability, or any other
protected group status; |
| • | The Age Discrimination in Employment Act and the Older Workers Benefit
Protection Act [29 USC Section 621 (and following sections)], which prohibit
discrimination against employees age 40 and above; |
| • | The Family and Medical Leave Act [29 USC Section 2601 (and following sections)]
and the California Family Rights Act; |
| • | The Employee Retirement Income Security Act [29 USC Section 1001 (and following
sections)]; |
| • | The Reconstruction Era Civil Rights Act [42 USC Section 1981 (and following
sections)]; |
| • | The Americans with Disabilities Act [29 USC Section 12101 (and following
sections)]; |
| • | The Worker Adjustment and Retraining Notification Act [29 USC Section 2100 (and
following sections)]; |
| • | Any other Claim(s) in any way related to or arising out of Employee’s employment
with the Company or the termination of that employment. |
Notwithstanding anything to the contrary contained in this Agreement, the release set forth in
this Paragraph 5 (the “Release”) expressly excludes any Claim(s) attributable to or arising from
this Agreement, and it shall not waive any Claim(s) that may arise out of future events beyond the
effective date of this Agreement, including those that may arise under COBRA or those subject to
any pension or welfare benefit plan maintained by the Company, if any.
6. Full and Complete Release. Employee acknowledges that the Release extends to all
causes of action, suits, debts, claims and demands referred to in Section 6, known or unknown,
suspected or unsuspected. By signing this Agreement, Employee expressly waives all rights under
Section 1542 of the California Civil Code, which reads in full as follows:
“A General Release does not extend to claims which the creditor does not know or
suspect to exist in his or her favor at the time of executing the release, which if
known by him or her must have materially affected his or her settlement with the
debtor.”
7. Review Period. Employee acknowledges and understands that Employee has been given
twenty-one (21) days from the Termination Date to consider and review the terms of this Agreement
prior to signing it, and releasing Employee’s claims. Employee understands that Employee may
execute this Agreement in Employee’s sole and absolute discretion, prior to the expiration of said
twenty-one (21) day period; however, Employee may not sign this Agreement prior to the Termination
Date.
8. Right of Revocation. Employee acknowledges and understands that Employee may
revoke this Agreement for a period of up to seven (7) days after Employee executes it (not counting
the day it is signed). To revoke this Agreement, Employee must give written notice to the Company
stating that Employee wishes to revoke this Agreement by providing notice by hand-delivery, mail or
facsimile to:
If Employee mails a notice of revocation to the Company, it must be postmarked no later than
seven (7) days following the date on which Employee signed this Agreement (not counting the day it
was signed) or the revocation will not be effective.
9. Covenant Not to Xxx. Employee agrees and covenants not to xxx or to bring, or
assign to any third person, any claims or charges against the Company or any Company Affiliate with
respect to any known matter arising before the date of this Release or covered by the Release and
not to assert against the Company or any Company Affiliate in any action, grievance, suit,
litigation or proceeding on any known matter before the date of this Release or covered by the
release. Employee agrees that in the event of a breach of any covenant of this Release by
Employee, the Company or any Company Affiliate damaged as a result of such breach shall be entitled
to recover attorneys’ fees and costs in an action relating to such breach, in addition to
compensatory damages.
10. Confidentiality.
a) Except to the extent required by law, including SEC disclosure requirements, the Employee
agrees that the terms of this Agreement will be kept confidential by Employee, except that Employee
may advise his family and confidential advisors.
b) Employee agrees that he will not knowingly reveal to any person or entity any of the trade
secrets or confidential information of the Company or that of the Company Affiliates or of any
third party which the Company is under an obligation to keep confidential (including, but not
limited to, trade secrets or confidential information respecting inventions, products, designs,
methods, know-how, techniques, systems, processes, software programs, works of authorship, customer
lists, projects, plans, and proposals), and Employee shall keep secret all confidential matter
relating to the Company or the Company Affiliates and shall not use or attempt to use any such
confidential information in any manner which injures or causes loss or may reasonably be
calculated to injure or cause loss whether directly or indirectly to the Company or the Company
Affiliates. These restrictions contained in this sub-paragraph (b) shall not apply to: (i)
information that at the time of disclosure is in the public domain through no fault of Employee;
(ii) information received from a third party outside of the Company that was disclosed without a
breach of any confidentiality obligation; (iii) information approved for release by written
authorization of the Company or the Company Affiliates; or (iv) information that may be required by
law or an order of the court, agency or proceeding to be disclosed; provided, Employee shall
provide the Company notice of any such required disclosure once Employee has knowledge of it and
will help the Company at the Company’s expense to the extent reasonable to obtain an appropriate
protective order.
c) Employee represent that, except as necessary and appropriate to perform his employment
duties, Employee has not taken, used or knowingly permitted to be used by any third party any
notes, memorandum, reports, lists, records, drawings, sketches, specification, software programs,
data, documentation, or other materials of any nature relating to any matter within the scope of
the business of the Company, the Company Affiliates, or their partner companies or concerning any
of the Company’s dealings. Employee shall not, after the Termination Date, use or knowingly permit
to be used by any third party any such notes, memoranda, reports, lists, records, drawings,
sketches, specification, software program, data, documentation, or other materials of any nature
relating to any matter within the scope of the business of the Company, the Company Affiliates, or
their partner companies or concerning any of the Company’s dealings, it being agreed that all of
the foregoing shall be and remain the sole and exclusive property of the Company, the Company
Affiliates or client of the Company as the case may be, and that Employee has delivered all of the
foregoing, and all copies thereof, except for a laptop computer and Employee’s personal contacts
list, to the Company at its main office.
11. Non-Disparagement. In consideration of the mutual promises and covenants
contained in this Agreement, the Employee and the Company hereby expressly agree that they will not
make statements to or initiate or participate in discussions with any other person that would
defame or disparage the other, or make to, or solicit for, the media or others, any comments,
statements (whether written or oral), and the like that may be considered to be derogatory or
detrimental to the good name or business reputation of either party. It is understood and agreed
that the Company’s obligation under this paragraph extends only to the
conduct of the Company’s employees who as of the date of this Agreement hold titles that are
at or above the level of Director, as that term is used within the Company. The only exception to
the foregoing shall be in those circumstances in which Employee or the Company is obligated to
provide information in response to an investigation by a duly authorized governmental entity or in
connection with legal proceedings. In the event that either Company or Employee discovers that the
other has disparaged them, the disparaged party shall be entitled to liquidated damages in the
amount of fifty thousand dollars ($50,000) per incident. Moreover, should Employee disparage
Company during the twelve (12) month period in which Employee is receiving severance pay and
benefits as set forth in Paragraph 2 above, all such severance pay and benefits, other than those
required to be paid under state and federal law, shall immediately cease. Company and Employee
waive the right to claim this liquidated damages amount unreasonable and challenge it in any way.
12. No Admission. This Agreement does not constitute an admission by the Company or
by any Affiliate, and the Company and each Affiliate specifically deny, that the Company or any
Affiliate has violated any contract, law, or regulation or that it has discriminated against
Employee or otherwise infringed on Employee’s rights or privileges or done any other wrongful act.
13. General. This Agreement constitutes the entire understanding between the parties
on the subject matter contained herein and supersedes all negotiations, representations, prior
discussions, and preliminary agreements between the parties with respect to such subject matter,
including the Executive’s Employment Agreement with the Company dated May 28, 2008. No promise,
representation, warranty, or covenant not included in this Agreement has been or is relied upon by
either party. Notwithstanding any statute or case law to the contrary, this Agreement may not be
modified except by a written instrument signed by each of the parties, whether or not such
modification is supported by separate consideration. This Agreement shall be binding upon and be
for the benefit of the Company, its Affiliates, and their successors and assigns, and Employee and
his personal representatives, executors and heirs. If Executive dies while any amount payable
under this Agreement remains unpaid, all such amounts will be paid to the parties legally entitled
thereto. Employee warrants that Employee has not assigned any Claim(s) released by this Agreement,
or any interest therein, to any third party. Any waiver by any party hereto of any breach of any
kind or character whatsoever by any other party, whether such waiver be direct or implied, shall
not be construed as a continuing waiver of, or consent to, any subsequent breach of this Agreement
on the part of the other party. In addition, no course of dealing between the parties, or any
delay in exercising any rights or remedies hereunder or otherwise, shall operate as a waiver of any
of the rights or remedies of the parties. The provisions of this Agreement are severable. If any
part of this Agreement is found to be unenforceable, the other provisions shall remain fully valid
and enforceable. It is the intention and agreement of the parties that all of the terms and
conditions hereof be enforced to the fullest extent permitted by law.
14. Indemnity.
a) The Release in this Agreement shall not release the Company or any of its insurance
carriers from any obligation it or they might otherwise have to defend and/or indemnify Employee
and hold him harmless from any claims made against him arising out of his activities as director or
officer of the Company, to the same extent as the Company or its insurance carriers are or may be
obligated to defend and/or indemnity and hold harmless any other director or officer and the
Company affirms its obligation to provide indemnification to Employee as a director, officer,
former director, or former officer of the Company, as set forth in the Company’s bylaws and charter
documents in effect on the date of this Agreement.
b) Employee agrees that Employee will personally provide reasonable assistance and cooperation
to the Company, at the Company’s expense, in activities related to the prosecution or defense of
any pending or future lawsuits or claims involving the Company.
15. Knowing and Voluntary Execution. Employee acknowledges that Employee has read
this Agreement carefully and fully understands the meaning of the terms of this Agreement.
Employee acknowledges that Employee has signed this Agreement voluntarily and of Employee’s own
free will and that Employee is knowingly and voluntarily releasing and waiving all claim(s) that
Employee has or may have against the Company or any Affiliate.
16. Consultation with Attorney. The Company advises Employee to consult with an
attorney of Employee’s choosing prior to signing this Agreement. Except as set forth in Paragraph
2(a) (i) of this Agreement, Employee will be solely responsible for any attorneys’ fees incurred by
Employee in connection with this Agreement.
17. Employee Representations. Employee represents and warrants that: (a) Employee is over the
age of majority and of sound mind and has the exclusive power and authority to execute and deliver
this Agreement; (b) this Agreement has been duly executed and delivered by Employee, after Employee
having been advised in writing to seek legal counsel and having the opportunity to consult with
legal counsel, and it constitutes Employee’s legal, valid, and binding obligation in accordance
with its terms; (c) Employee is the exclusive owner of all rights and claims Employee may have or
assert against Employer and no person or entity is now, or shall be, subrogated to any claims or
rights that Employee has or may have against the Company; and (d) except as expressly set forth in
this Agreement, no promises, representations or inducements have been made by the Company to
Employee to cause Employee to sign this Agreement.
18. Miscellaneous. All matters pertaining to the validity, construction, interpretation, and
effect of this Agreement shall be governed by the laws of the State of California. If for any
reason this Agreement is not executed or otherwise consummated, this Agreement shall not constitute
any evidence in any proceeding or be used in discovery in any way.
I HAVE BEEN AFFORDED THE OPPORTUNITY TO REVIEW AND CONSIDER THIS DOCUMENT FOR AT LEAST
TWENTY-ONE (21) DAYS.
I UNDERSTAND THAT I HAVE SEVEN (7) DAYS FROM THE DATE GIVEN BELOW TO REVOKE THIS RELEASE AND
WAIVER.
I HAVE READ AND UNDERSTAND THIS DOCUMENT. I HAVE SIGNED THIS DOCUMENT FREELY AND OF MY OWN
ACCORD AFTER HAVING BEEN GIVEN AMPLE OPPORTUNITY AND HAVING BEEN ADVISED TO SECURE THE ADVICE AND
COUNSEL OF AN ATTORNEY OF MY CHOOSING.
Executed this 5th day of January 2010.
| EXECUTIVE |
||||
| /s/ XXXXXXX LAND | ||||
| Xxxxxxx Land | ||||
| CLARIENT, INC. |
||||
| /s/ XXX XXXXXXX | ||||
| Xxx Xxxxxxx, President | ||||
