EXHIBIT 10.43.2
CHOLESTECH CORPORATION
AMENDED AND RESTATED
CHANGE OF CONTROL SEVERANCE AGREEMENT
This Amended and Restated Change of Control Severance Agreement (the
"Agreement") is made and entered into effective as of March 25, 2004 (the
"Effective Date"), by and between Xxxxxxx X. Xxxxx (the "Employee") and
Cholestech Corporation, a California corporation (the "Company"). Certain
capitalized terms used in this Agreement are defined in Section 2 below.
RECITALS
A. It is expected that the Company from time to time will consider
the possibility of a Change of Control. The Board of Directors of the Company
(the "Board") recognizes that such consideration can be a distraction to the
Employee and can cause the Employee to consider alternative employment
opportunities.
B. The Board believes that it is in the best interests of the
Company and its shareholders to provide the Employee with an incentive to
continue his employment and to maximize the value of the Company upon a Change
of Control for the benefit of its shareholders.
C. In order to provide the Employee with enhanced financial
security and sufficient encouragement to remain with the Company notwithstanding
the possibility of a Change of Control, the Board believes that it is imperative
to provide the Employee with certain severance benefits upon the Employee's
termination of employment following a Change of Control.
D. The Company and the Employee entered into the Change of Control
Severance Agreement effective as of July 31, 2001, as amended January 23, 2003
(the "Change of Control Agreement"), which provides the Employee with certain
severance benefits upon the Employee's termination of employment following a
Change of Control.
E. Pursuant to Section 11(b) of the Change of Control Agreement,
the Change of Control Agreement may be modified in writing signed by the parties
thereto.
F. The parties wish to amend and restate the Change of Control
Agreement in its entirety as set forth herein.
AGREEMENT
In consideration of the mutual covenants herein contained and the
continued employment of the Employee by the Company, the parties agree as
follows:
1. Amendment and Restatement. The Change of Control Agreement is
hereby amended and replaced in its entirety by this Agreement.
2. Definition of Terms. The following terms referred to in this
Agreement shall have the following meanings:
(a) Cause. "Cause" shall mean (i) any act of personal
dishonesty taken by the Employee in connection with his responsibilities as an
employee which is intended to result in substantial personal enrichment of the
Employee, (ii) the Employee's conviction of a felony which the Board reasonably
believes has had or will have a material detrimental effect on the Company's
reputation or business, (iii) a willful act by the Employee which constitutes
misconduct and is injurious to the Company, or (iv) continued willful violations
by the Employee of the Employee's obligations to the Company after there has
been delivered to the Employee a written demand for performance from the Company
which describes the basis for the Company's belief that the Employee has not
substantially performed his duties.
(b) Change of Control. "Change of Control" shall mean the
occurrence of any of the following events:
(i) the approval by shareholders of the Company of a
merger or consolidation of the Company with any other corporation, other than a
merger or consolidation which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) more than fifty percent (50%) of the total voting power
represented by the voting securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation;
(ii) any approval by the shareholders of the Company
of a plan of complete liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all of the Company's assets;
(iii) any "person" (as such term is used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended) becoming the
"beneficial owner" (as defined in Rule 13d-3 under said Act), directly or
indirectly, of securities of the Company representing more than fifty percent
(50%) of the total voting power represented by the Company's then outstanding
voting securities; or
(iv) a change in the composition of the Board, as a
result of which fewer than a majority of the directors are Incumbent Directors.
"Incumbent Directors" shall mean directors who either (A) are directors of the
Company as of the date hereof, or (B) are elected, or nominated for election, to
the Board with the affirmative votes of at least a majority of those directors
whose election or nomination was not in connection with any transaction
described in subsections (i), (ii) or (iii) or in connection with an actual or
threatened proxy contest relating to the election of directors of the Company.
(c) Compensation Continuation Period. "Compensation
Continuation Period" shall mean the period of time commencing with termination
of the Employee's employment as a result of Involuntary Termination at any time
within 12 months after a Change of Control and ending with the date 18 months
following the date of the Employee's Involuntary Termination.
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(d) Involuntary Termination. "Involuntary Termination" shall
mean (i) the failure of an acquiring corporation to offer the Employee the
position of the Chief Financial Officer of the acquiring corporation following a
Change of Control; (ii) without the Employee's express written consent, a
substantial reduction, without good business reasons, of the facilities and
perquisites (including office space and location) available to the Employee
immediately prior to such reduction; (iii) without the Employee's express
written consent, a reduction by the Company of the Employee's base salary or
target bonus as in effect immediately prior to such reduction; (iv) without the
Employee's express written consent, a material reduction by the Company in the
kind or level of employee benefits to which the Employee is entitled immediately
prior to such reduction with the result that the Employee's overall benefits
package is significantly reduced; (v) without the Employee's express written
consent, the relocation of the Employee to a facility or a location more than
thirty (30) miles from Dallas, Texas; (vi) any purported termination of the
Employee by the Company which is not effected for Cause or for which the grounds
relied upon are not valid; or (vii) the failure of the Company to obtain the
assumption of this Agreement by any successors contemplated in Section 8 below.
3. Term of Agreement. This Agreement shall terminate upon the date
that all obligations of the parties hereto under this Agreement have been
satisfied or, if earlier, on the date, prior to a Change of Control, the
Employee is no longer employed by the Company.
4. At-Will Employment. The Company and the Employee acknowledge
that the Employee's employment is and shall continue to be at-will, as defined
under applicable law. If the Employee's employment terminates for any reason,
the Employee shall not be entitled to any payments, benefits, damages, awards or
compensation other than as provided by this Agreement, or as may otherwise be
established under the Company's then existing employee benefit plans or policies
at the time of termination.
5. Change of Control and Severance Benefits.
(a) Option Acceleration. If the Employee's employment with
the Company terminates as a result of an Involuntary Termination at any time
within 12 months after a Change of Control, then one hundred percent (100%) of
the shares subject to all options granted to the Employee by the Company and
still outstanding (the "Options") shall immediately become vested and
exercisable in full upon such Involuntary Termination. Such vested shares shall
continue to be subject to the terms and conditions of the Company's stock option
plans and the applicable option agreements between the Employee and the Company.
(b) Termination Following A Change of Control.
(i) Severance Payment Upon Involuntary Termination.
If the Employee's employment with the Company terminates as a result of an
Involuntary Termination at any time within 12 months after a Change of Control,
then the Employee shall be entitled to receive a severance payment in an amount
equal to (i) 18 months of the Employee's base salary as in effect immediately
prior to the Involuntary Termination, (ii) 150% of the Employee's target bonus
as in effect for the fiscal year in which the Involuntary Termination occurs and
(iii) up to 100% of the Employee's target bonus as in effect for the fiscal year
in which the Involuntary Termination occurs, with such amount determined by the
Board in its sole discretion based on the Employee's
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achievement of the management objectives on which such bonus is based and
pro-rated by multiplying such bonus amount by a fraction, the numerator of which
shall be the number of days prior to the occurrence of the Involuntary
Termination during such fiscal year, and the denominator of which shall be 365.
Such severance payment shall be in lieu of any other severance payment to which
the Employee shall be entitled pursuant to any employment agreement, offer
letter or the Company's then existing severance plans and policies. Such
severance payment shall be payable over a period of 18 months commencing on the
date of the Involuntary Termination in accordance with the Company's normal
payment practices. In addition, during the Compensation Continuation Period, the
Company shall continue to make available to the Employee and Employee's spouse
and dependents covered under any group health plans of the Company on the date
of such termination of employment the same level of health (i.e., medical,
vision and dental) coverage and benefits as in effect for the Employee or such
covered dependents on the date immediately preceding the date of the Employee's
termination; provided, however, that (i) the Employee constitutes a qualified
beneficiary, as defined in Section 4980B(g)(1) of the Internal Revenue Code of
1986, as amended; and (ii) the Employee elects continuation coverage pursuant to
the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended
("COBRA"), within the time period prescribed pursuant to COBRA.
(ii) Voluntary Resignation or Termination for Cause.
If the Employee's employment with the Company terminates as a result of the
Employee's voluntary resignation which is not an Involuntary Termination or if
the Employee is terminated for Cause at any time after a Change of Control, then
the Employee shall not be entitled to receive severance or other benefits
hereunder, but may be eligible for those benefits (if any) as may then be
established under the Company's then existing severance and benefits plans and
policies at the time of such termination.
(c) Disability or Death. If the Employee's employment with
the Company terminates due to the Employee's death or disability following a
Change of Control, then the Employee shall not be entitled to receive severance
or other benefits hereunder, except for those (if any) as may be then
established under the Company's then existing severance and benefits plans and
policies at the time of such disability or death. In the event of the Employee's
death or disability after the termination of the Employee's employment with the
Company as a result of an Involuntary Termination within 12 months of a Change
of Control, the Employee's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees shall be
entitled to receive severance or other benefits hereunder.
(d) Accrued Wages and Vacation; Expenses. Without regard to
the reason for, or the timing of, the Employee's termination of employment: (i)
the Company shall pay the Employee any unpaid base salary due for periods prior
to the date of termination; (ii) the Company shall pay the Employee all of the
Employee's accrued and unused vacation through the date of termination; and
(iii) following submission of proper expense reports by the Employee, the
Company shall reimburse the Employee for all expenses reasonably and necessarily
incurred by the Employee in connection with the business of the Company prior to
the date of termination. These payments shall be made promptly upon termination
and within the period of time mandated by law.
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6. Conditional Nature of Severance Payments.
(a) Non-Compete. The Employee acknowledges that the nature
of the Company's business is such that if the Employee were to become employed
by, or substantially involved in, the business of a competitor of the Company
during the 18 months following the termination of the Employee's employment with
the Company, it would be very difficult for the Employee not to rely on or use
the Company's trade secrets and confidential information. Thus, to avoid the
inevitable disclosure of the Company's trade secrets and confidential
information, the Employee agrees and acknowledges that the Employee's right to
receive the severance payments set forth in Section 5 (to the extent the
Employee is otherwise entitled to such payments) shall be conditioned upon the
Employee not directly or indirectly engaging in (whether as an employee,
consultant, agent, proprietor, principal, partner, stockholder, corporate
officer, director or otherwise), nor having any ownership interest in or
participating in the financing, operation, management or control of, any person,
firm, corporation or business that is a customer of the Company or whose
business is the design, production and delivery of diagnostic test systems and
services. Upon any breach of this section, all severance payments pursuant to
this Agreement shall immediately cease.
(b) Non-Disparagement. The Employee agrees to refrain from
any defamation, libel or slander of the Company and its respective officers,
directors, employees, investors, shareholders, administrators, affiliates,
divisions, subsidiaries, predecessor and successor corporations and assigns or
tortious interference with the contracts and relationships of the Company and
its respective officers, directors, employees, investors, shareholders,
administrators, affiliates, divisions, subsidiaries, predecessor and successor
corporations and assigns.
(c) Understanding of Covenants. The Employee represents that
he (i) is familiar with the foregoing covenants not to compete and not to
disparage, and (ii) is fully aware of his obligations hereunder, including,
without limitation, the reasonableness of the length of time, scope and
geographic coverage of the covenant not to compete.
7. Golden Parachute Excise Tax. In the event that the benefits
provided for in this Agreement or otherwise payable to the Employee constitute
"parachute payments" within the meaning of Section 280G of the Internal Revenue
Code of 1986, as amended (the "Code") that are subject to the excise tax imposed
by Section 4999 of the Code (the "Excise Tax"), then the Employee shall receive
(i) a one-time payment from the Company sufficient to pay such excise tax (the
"Excise Tax Gross-Up"), and (ii) an additional one-time payment from the Company
sufficient to pay the additional excise tax and federal and state income taxes
arising from the Excise Tax Gross-Up made by the Company to the Employee
pursuant to this Section (the "Additional Gross-Up"); provided, however, that
the Company shall only pay the Excise Tax Gross-Up and Additional Gross-Up if
the cumulative value of such payments to the Employee equals or exceeds $10,000.
In the event that such payments to the Employee is less than $10,000, then the
Employee's benefits hereunder shall be either (x) delivered in full, or (y)
delivered as to such lesser extent which would result in no portion of such
severance benefits being subject to the Excise Tax, whichever of the foregoing
amounts, taking into account the applicable federal, state and local income and
employment taxes and the Excise Tax, results in the receipt by the Employee on
an after-tax basis, of the greatest amount of severance benefits,
notwithstanding that all or some portion of such benefits may be taxable under
the Excise Tax. Unless the Company and the Employee otherwise agree in writing,
the determination of the Employee's excise tax liability and the amount required
to be paid
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under this Section 7 shall be made in writing in good faith by the accounting
firm serving as the Company's independent public accountants immediately prior
to the Change of Control (the "Accountants"). In the event that the Excise Tax
incurred by the Employee is determined by the Internal Revenue Service to be
greater or lesser than the amount so determined by the Accountants, the Company
and the Employee agree to promptly make such additional payment, including
interest and any tax penalties, to the other party as the Accountants reasonably
determine is appropriate. For purposes of making the calculations required by
this Section 7, the Accountants may make reasonable assumptions and
approximations concerning applicable taxes and may rely on interpretations
concerning the application of the Code for which there is a "substantial
authority" tax reporting position. The Company and the Employee shall furnish to
the Accountants such information and documents as the Accountants may reasonably
request in order to make a determination under this Section 7. The Company shall
bear all costs the Accountants may reasonably incur in connection with any
calculations contemplated by this Section 7.
8. Successors.
(a) Company's Successors. Any successor to the Company
(whether direct or indirect and whether by purchase, lease, merger,
consolidation, liquidation or otherwise) to all or substantially all of the
Company's business and/or assets shall assume the Company's obligations under
this Agreement and agree expressly to perform the Company's obligations under
this Agreement in the same manner and to the same extent as the Company would be
required to perform such obligations in the absence of a succession. For all
purposes under this Agreement, the term "Company" shall include any successor to
the Company's business and/or assets which executes and delivers the assumption
agreement described in this subsection (a) or which becomes bound by the terms
of this Agreement by operation of law.
(b) Employee's Successors. Without the written consent of
the Company, the Employee shall not assign or transfer this Agreement or any
right or obligation under this Agreement to any other person or entity.
Notwithstanding the foregoing, the terms of this Agreement and all rights of the
Employee hereunder shall inure to the benefit of, and be enforceable by, the
Employee's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.
9. Notices.
(a) General. Notices and all other communications
contemplated by this Agreement shall be in writing and shall be deemed to have
been duly given when personally delivered or when mailed by U.S. registered or
certified mail, return receipt requested and postage prepaid. In the case of the
Employee, mailed notices shall be addressed to him at the home address that he
most recently communicated to the Company in writing. In the case of the
Company, mailed notices shall be addressed to its corporate headquarters, and
all notices shall be directed to the attention of its Secretary.
(b) Notice of Termination. Any termination by the Company
for Cause or by the Employee as a result of a voluntary resignation or an
Involuntary Termination shall be communicated by a notice of termination to the
other party hereto given in accordance with this Section. Such notice shall
indicate the specific termination provision in this Agreement relied upon,
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shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination under the provision so indicated. The failure by
the Employee to include in the notice any fact or circumstance which contributes
to a showing of Involuntary Termination shall not waive any right of the
Employee hereunder or preclude the Employee from asserting such fact or
circumstance in enforcing his rights hereunder.
10. Execution of Release Agreement upon Termination. As a condition
of entering into this Agreement and receiving the benefits under Section 5, the
Employee agrees to execute and not revoke a release of claims agreement
substantially in the form attached hereto as Exhibit A upon the termination of
his employment with the Company.
11. Arbitration.
(a) Except as provided in Section 11(d) below, any dispute
or controversy arising out of, relating to, or in connection with this
Agreement, or the interpretation, validity, construction, performance, breach,
or termination thereof, shall be settled by binding arbitration to be held in
Palo Alto, California, in accordance with the National Rules for the Resolution
of Employment Disputes then in effect of the American Arbitration Association
(the "Rules"). The arbitrator may grant injunctions or other relief in such
dispute or controversy. The decision of the arbitrator shall be final,
conclusive and binding on the parties to the arbitration. Judgment may be
entered on the arbitrator's decision in any court having jurisdiction.
(b) The arbitrator(s) shall apply California law to the
merits of any dispute or claim, without reference to conflicts of law rules. The
arbitration proceedings shall be governed by federal arbitration law and by the
Rules, without reference to state arbitration law. The Employee hereby consents
to the personal jurisdiction of the state and federal courts located in
California for any action or proceeding arising from or relating to this
Agreement or relating to any arbitration in which the parties are participants.
(c) The Employee understands that nothing in this Section
modifies the Employee's at-will employment status. Either the Employee or the
Company can terminate the employment relationship at any time, with or without
cause.
(d) THE EMPLOYEE HAS READ AND UNDERSTANDS THIS SECTION,
WHICH DISCUSSES ARBITRATION. THE EMPLOYEE UNDERSTANDS THAT SUBMITTING ANY CLAIMS
ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT, OR THE
INTERPRETATION, VALIDITY, CONSTRUCTION, PERFORMANCE, BREACH OR TERMINATION
THEREOF TO BINDING ARBITRATION TO THE EXTENT PERMITTED BY LAW, AND THAT THIS
ARBITRATION CLAUSE CONSTITUTES A WAIVER OF THE EMPLOYEE'S RIGHT TO A JURY TRIAL
AND RELATES TO THE RESOLUTION OF ALL DISPUTES RELATING TO ALL ASPECTS OF THE
EMPLOYER/EMPLOYEE RELATIONSHIP, INCLUDING BUT NOT LIMITED TO, THE FOLLOWING
CLAIMS:
(i) ANY AND ALL CLAIMS FOR WRONGFUL DISCHARGE OF
EMPLOYMENT; BREACH OF CONTRACT, BOTH EXPRESS AND IMPLIED; BREACH OF THE COVENANT
OF GOOD FAITH AND FAIR DEALING, BOTH EXPRESS AND IMPLIED;
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NEGLIGENT OR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS; NEGLIGENT OR
INTENTIONAL MISREPRESENTATION; NEGLIGENT OR INTENTIONAL INTERFERENCE WITH
CONTRACT OR PROSPECTIVE ECONOMIC ADVANTAGE; AND DEFAMATION.
(ii) ANY AND ALL CLAIMS FOR VIOLATION OF ANY FEDERAL
STATE OR MUNICIPAL STATUTE, INCLUDING, BUT NOT LIMITED TO, TITLE VII OF THE
CIVIL RIGHTS ACT OF 1964, THE CIVIL RIGHTS ACT OF 1991, THE AGE DISCRIMINATION
IN EMPLOYMENT ACT OF 1967, THE AMERICANS WITH DISABILITIES ACT OF 1990, THE FAIR
LABOR STANDARDS ACT, THE CALIFORNIA FAIR EMPLOYMENT AND HOUSING ACT, AND LABOR
CODE SECTION 201, et seq;
(iii) ANY AND ALL CLAIMS ARISING OUT OF ANY OTHER LAWS
AND REGULATIONS RELATING TO EMPLOYMENT OR EMPLOYMENT DISCRIMINATION.
12. Miscellaneous Provisions.
(a) Mitigation. The Employee shall not be required to
mitigate the amount of any payment contemplated by this Agreement, nor shall any
such payment be reduced by any earnings that the Employee may receive from any
other source. However, the Employee shall not be entitled to receive the health
coverage and benefits contemplated by this Agreement in the event that the
Employee receives similar health coverage and benefits as a result of new
employment during the Compensation Continuation Period.
(b) Waiver. No provision of this Agreement may be modified,
waived or discharged unless the modification, waiver or discharge is agreed to
in writing and signed by the Employee and by an authorized officer of the
Company (other than the Employee). No waiver by either party of any breach of,
or of compliance with, any condition or provision of this Agreement by the other
party shall be considered a waiver of any other condition or provision or of the
same condition or provision at another time.
(c) Integration. This Agreement represents the entire
agreement and understanding between the parties with respect to the subject
matter herein and supersedes all prior or contemporaneous agreements, offer
letters, resolutions of the Company's Board of Directors, understandings and
arrangements, whether written or oral, regarding the same.
(d) Choice of Law. The validity, interpretation,
construction and performance of this Agreement shall be governed by the internal
substantive laws, but not the conflicts of law rules, of the State of
California.
(e) Severability. The invalidity or unenforceability of any
provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision hereof, which shall remain in full force
and effect.
(f) Employment Taxes. All payments made pursuant to this
Agreement shall be subject to withholding of applicable income and employment
taxes.
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(g) Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together will constitute one and the same instrument.
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IN WITNESS WHEREOF, each of the parties has executed this Agreement, in
the case of the Company by its duly authorized officer, as of the day and year
first above written.
COMPANY: CHOLESTECH CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx XX
-------------------------------------------
Xxxxxx X. Xxxxxxxx XX
President and Chief Executive Officer
EMPLOYEE: /s/ Xxxxxxx X. Xxxxx
----------------------------------------------
Xxxxxxx X. Xxxxx
EXHIBIT A
FORM RELEASE OF CLAIMS AGREEMENT
This Release of Claims Agreement (this "Agreement") is made and entered
into by and between Cholestech Corporation (the "Company") and Xxxxxxx X. Xxxxx
(the "Employee").
WHEREAS, the Employee was employed by the Company; and
WHEREAS, the Company (or the Company's predecessor) and the Employee
have entered into an Amended and Restated Change of Control Severance Agreement
effective as of March 25, 2004 (the "Severance Agreement").
NOW THEREFORE, in consideration of the mutual promises made herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Company and the Employee (collectively referred to as
the "Parties") desiring to be legally bound do hereby agree as follows:
1. Termination. The Employee's employment with the Company
terminated on ___________, 20__.
2. Consideration. Subject to and in consideration of the Employee's
release of claims as provided herein, the Company has agreed to pay the Employee
certain benefits and the Employee has agreed to provide certain benefits to the
Company, both as set forth in the Severance Agreement.
3. Payment of Salary. The Employee acknowledges and represents that
the Company has paid all salary, wages, bonuses, accrued vacation, commissions
and any and all other benefits due to the Employee.
4. Release of Claims. The Employee agrees that the foregoing
consideration represents settlement in full of all outstanding obligations owed
to the Employee by the Company. The Employee, on his own behalf and his
respective heirs, family members, executors and assigns, hereby fully and
forever releases the Company and its past, present and future officers, agents,
directors, employees, investors, shareholders, administrators, affiliates,
divisions, subsidiaries, parents, predecessor and successor corporations, and
assigns, from, and agrees not to xxx or otherwise institute or cause to be
instituted any legal or administrative proceedings concerning any claim, duty,
obligation or cause of action relating to any matters of any kind, whether
presently known or unknown, suspected or unsuspected, that he may possess
arising from any omissions, acts or facts that have occurred up until and
including the Effective Date (as defined below) of this Agreement including,
without limitation:
(a) any and all claims relating to or arising from the
Employee's employment relationship with the Company and the termination of that
relationship;
(b) any and all claims relating to, or arising from, the
Employee's right to purchase, or actual purchase of shares of stock of the
Company, including, without limitation, any claims for fraud, misrepresentation,
breach of fiduciary duty, breach of duty under applicable state corporate law
and securities fraud under any state or federal law;
(c) any and all claims for wrongful discharge of employment,
termination in violation of public policy, discrimination, breach of contract
(both express and implied), breach of a covenant of good faith and fair dealing
(both express and implied), promissory estoppel, negligent or intentional
infliction of emotional distress, negligent or intentional misrepresentation,
negligent or intentional interference with contract or prospective economic
advantage, unfair business practices, defamation, libel, slander, negligence,
personal injury, assault, battery, invasion of privacy, false imprisonment and
conversion;
(d) any and all claims for violation of any federal, state
or municipal statute, including, but not limited to, Title VII of the Civil
Rights Act of 1964, the Civil Rights Act of 1991, the Age Discrimination in
Employment Act of 1967, the Americans with Disabilities Act of 1990, the Fair
Labor Standards Act, the Employee Retirement Income Security Act of 1974, The
Worker Adjustment and Retraining Notification Act, the California Fair
Employment and Housing Act, and Labor Code Section 201, et seq. and Section 970,
et seq. and all amendments to each such Act as well as the regulations issued
thereunder;
(e) any and all claims for violation of the federal or any
state constitution;
(f) any and all claims arising out of any other laws and
regulations relating to employment or employment discrimination; and
(g) any and all claims for attorneys' fees and costs.
The Employee agrees that the release set forth in this Section 4
shall be and remain in effect in all respects as a complete general release as
to the matters released. This release does not extend to any obligations
incurred under this Agreement.
5. Acknowledgment of Waiver of Claims under ADEA. The Employee
acknowledges that he is waiving and releasing any rights he may have under the
Age Discrimination in Employment Act of 1967 ("ADEA") and that this waiver and
release is knowing and voluntary. The Employee and the Company agree that this
waiver and release does not apply to any rights or claims that may arise under
the ADEA after the Effective Date of this Agreement. The Employee acknowledges
that the consideration given for this waiver and release agreement is in
addition to anything of value to which the Employee was already entitled. The
Employee further acknowledges that he has been advised by this writing that (a)
he should consult with an attorney prior to executing this Agreement; (b) he has
at least twenty-one (21) days within which to consider this Agreement; (c) he
has seven (7) days following the execution of this Agreement by the Parties to
revoke the Agreement; and (d) this Agreement shall not be effective until the
revocation period has expired. Any revocation should be in writing and delivered
to the Company by the close of business on the seventh (7th) day from the date
that the Employee signs this Agreement.
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6. Civil Code Section 1542. The Employee represents that he is not
aware of any claims against the Company other than the claims that are released
by this Agreement. The Employee acknowledges that he has been advised by legal
counsel and is familiar with the provisions of California Civil Code Section
1542, which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
The Employee, being aware of said code section, agrees to
expressly waive any rights he may have thereunder, as well as under any other
statute or common law principles of similar effect.
7. No Pending or Future Lawsuits. The Employee represents that he
has no lawsuits, claims or actions pending in his name, or on behalf of any
other person or entity, against the Company or any other person or entity
referred to herein. The Employee also represents that he does not intend to
bring any claims on his own behalf or on behalf of any other person or entity
against the Company or any other person or entity referred to herein.
8. Confidentiality. The Employee agrees to use his best efforts to
maintain in confidence the existence of this Agreement, the contents and terms
of this Agreement, and the consideration for this Agreement (hereinafter
collectively referred to as "Release Information"). The Employee agrees to take
every reasonable precaution to prevent disclosure of any Release Information to
third parties and agrees that there will be no publicity, directly or
indirectly, concerning any Release Information. The Employee agrees to take
every precaution to disclose Release Information only to those attorneys,
accountants, governmental entities and family members who have a reasonable need
to know of such Release Information.
9. No Cooperation. The Employee agrees he will not act in any
manner that might damage the business of the Company. The Employee agrees that
he will not counsel or assist any attorneys or their clients in the presentation
or prosecution of any disputes, differences, grievances, claims, charges or
complaints by any third party against the Company and/or any officer, director,
employee, agent, representative, shareholder or attorney of the Company, unless
under a subpoena or other court order to do so.
10. Costs. The Parties shall each bear their own costs, expert fees,
attorneys' fees and other fees incurred in connection with this Agreement.
11. Authority. The Company represents and warrants that the
undersigned has the authority to act on behalf of the Company and to bind the
Company and all who may claim through it to the terms and conditions of this
Agreement. The Employee represents and warrants that he has the capacity to act
on his own behalf and on behalf of all who might claim through him to bind them
to the terms and conditions of this Agreement.
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12. No Representations. The Employee represents that he has had the
opportunity to consult with an attorney, and has carefully read and understands
the scope and effect of the provisions of this Agreement. Neither party has
relied upon any representations or statements made by the other party hereto
which are not specifically set forth in this Agreement.
13. Severability. In the event that any provision hereof becomes or
is declared by a court of competent jurisdiction to be illegal, unenforceable or
void, this Agreement shall continue in full force and effect without said
provision.
14. Entire Agreement. This Agreement and the Severance Agreement and
the agreements and plans referenced therein represent the entire agreement and
understanding between the Company and the Employee concerning the Employee's
separation from the Company, and supersede and replace any and all prior
agreements and understandings concerning the Employee's relationship with the
Company and his compensation by the Company. This Agreement may only be amended
in writing signed by the Employee and an executive officer of the Company.
15. Governing Law. This Agreement shall be governed by the internal
substantive laws, but not the choice of law rules, of the State of California.
16. Effective Date. This Agreement is effective eight (8) days after
it has been signed by the Parties (the "Effective Date").
17. Counterparts. This Agreement may be executed in counterparts,
and each counterpart shall have the same force and effect as an original and
shall constitute an effective, binding agreement on the part of each of the
undersigned.
18. Voluntary Execution of Agreement. This Agreement is executed
voluntarily and without any duress or undue influence on the part or behalf of
the Parties hereto, with the full intent of releasing all claims. The Parties
acknowledge that:
(a) They have read this Agreement;
(b) They have been represented in the preparation,
negotiation and execution of this Agreement by legal counsel of their own choice
or that they have voluntarily declined to seek such counsel;
(c) They understand the terms and consequences of this
Agreement and of the releases it contains; and
(d) They are fully aware of the legal and binding effect of
this Agreement.
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IN WITNESS WHEREOF, the Parties have executed this Agreement on the
respective dates set forth below.
CHOLESTECH CORPORATION
By:
-----------------------------------------
Title:
--------------------------------------
Date:
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EMPLOYEE
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Xxxxxxx X. Xxxxx
Date:
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