AGREEMENT AND GENERAL RELEASE
Exhibit
10.4
AGREEMENT
AND GENERAL RELEASE
For
good
and valuable consideration, rendered to resolve and settle finally, fully and
completely all matters or disputes that now or may exist between them, the
parties below enter this Agreement and General Release:
1. Parties.
The
parties to this Agreement are Xxxxxx Xxxxxxxx, his heirs, representatives,
successors and assigns (hereinafter referred to collectively as “Xx. Xxxxxxxx”)
and Alpha Innotech Corp., and/or any of its successors, subsidiaries,
affiliates, parties and related companies (hereinafter referred to collectively
as “Alpha Innotech”).
2. Release
Of Claims By Xx. Xxxxxxxx.
In
exchange for the promises contained in this Agreement and to the extent
permitted by law, Xx. Xxxxxxxx hereby waives, releases and forever discharges,
and agrees that he will not in any manner institute, prosecute or pursue, any
and all complaints, claims, charges, liabilities, claims for relief, demands,
suits, actions or causes of action, whether in law or in equity, which he
asserts or could assert, at common law or under any statute, rule, regulation,
order or law, whether federal, state, or local, or on any grounds whatsoever,
including but not limited to, any claims under Title VII of the 1964 Civil
Rights Act, the Age Discrimination in Employment Act, the California Fair
Employment and Housing Act, Government Code §12900 et seq.,
the
California Labor Code, the Americans with Disabilities Act, the California
Family Leave Act, and the Employee Retirement Income Security Act of 1974
against Alpha Innotech and any of its current or former owners, officials,
directors, officers, shareholders, affiliates, agents, employee benefit plans,
representatives, servants, employees, attorneys, subsidiaries, parents,
divisions, branches, units, successors, predecessors, and assigns (collectively
referred to as “Released Parties”) with respect to any event, matter, claim,
damage or injury arising out of Xx. Xxxxxxxx’x employment relationship with
Alpha Innotech, and the termination of such employment relationship, and with
respect to any other claim, matter, or event related to Xx. Xxxxxxxx’x
employment at Alpha Innotech Corporation.
3. Civil
Code § 1542 Waiver.
As a
further consideration and inducement for this Agreement, Xx. Xxxxxxxx hereby
waives any and all rights under Section 1542 of the California Civil Code or
any
similar state, local, or federal law, statute, rule, order or regulation he
may
have with respect to Alpha Innotech and any of the Released
Parties.
Section
1542 provides:
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.
Xx.
Xxxxxxxx expressly agrees that this Agreement shall extend and apply to all
unknown, unsuspected and unanticipated injuries and damages as well as those
that are now disclosed.
4. Outstanding
Claims.
As
further consideration and inducement for this Agreement, Xx. Xxxxxxxx represents
that he has not filed or otherwise pursued any charges, complaints or claims
of
any nature which are in any way pending against Alpha Innotech or any of the
Released Parties, with any local, state or federal government agency or court
with respect to any matter covered by this Agreement and, to the extent
permitted by law, he will not do so in the future. If any government agency
or
court assumes jurisdiction of any charge, complaint, cause of action or claim
covered by this Agreement against Alpha Innotech or any of the Released Parties,
on behalf of or related to Xx. Xxxxxxxx, he will withdraw from and/or dismiss
the matter with prejudice, as to any claims they might have. Xx. Xxxxxxxx agrees
he will not participate or cooperate in such matter(s) except as required by
law.
5. Consideration
for Release.
In
consideration of the promises contained herein, Alpha Innotech agrees that
it
will provide Xx. Xxxxxxxx with the severance payment outlined in the April
6,
2005 Amendment to his May 11, 2001 Employment Agreement. Under this severance
payment plan, Alpha Innotech will continue to pay Xx. Xxxxxxxx’x salary at his
current base rate of $150,000 per year paid bi-weekly (less applicable
withholdings and deductions) through October 6, 2007. By signing below, Xx.
Xxxxxxxx acknowledges that he is receiving the severance payment outlined in
the
April 6, 2005 Amendment to his May 11, 2001 Employment Agreement (Paragraph
2.4,
Termination other than for Cause, Death, Disability or Good Reason) in
consideration for waiving his rights to claims referred to in this Agreement,
and without such waiver, Xx. Xxxxxxxx would not otherwise be entitled to the
severance payment.
6. Additional
Payments. Xx.
Xxxxxxxx understands and agrees that he will receive payment in the amount
of
$114,743.34 less applicable withholdings and deductions, from the Alpha Innotech
Accrued Compensation Plan on or before November 30, 2006. Xx. Xxxxxxxx further
agrees that this is the entire amount to which he is entitled under the Accrued
Compensation Plan.
Xx.
Xxxxxxxx understands that his rights under the Alpha Innotech Corp. Bonus Plan
will continue to the extent set forth in the Alpha Innotech Corp. Bonus Plan
documents.
7. Business
Opportunities. The
Company agrees and acknowledges that Xx. Xxxxxxxx has informed the Company,
including its Board of Directors, of his
intention
to pursue business opportunities with respect to instruments, software,
reagents, and related products in the Polymerase Chain Reaction (PCR) and
Quantitative Polymerase Chain Reaction (QPCR) research and diagnostic markets.
The Company further agrees and acknowledges that these opportunities will not
compete with the Company’s business or result in the inevitable disclosure of
the Company’s trade secrets, or otherwise constitute a breach of Section 4.1 of
the Employee’s May 11, 2001 Employment Agreement or the April 6, 2005 Amendment
thereto.
8. Time
To Sign And Revoke Agreement.
Xx.
Xxxxxxxx acknowledges and agrees that he was advised that he has twenty-one
(21)
calendar days from the date he received this Agreement to consider the terms
of
this Agreement. Xx. Xxxxxxxx is advised to consult with an attorney prior to
signing this Agreement.
Xx.
Xxxxxxxx also understands and has been advised that he has seven (7) calendar
days to revoke his agreement hereto. He further understands that the Agreement
shall not become effective and enforceable until after the passage of this
seven
(7) day period.
9. No
Admission Of Liability.
By
entering into this Agreement, Alpha Innotech and all Released Parties do not
admit any liability whatsoever to Xx. Xxxxxxxx or to any other person arising
out of any claims heretofore or hereafter asserted by Xx. Xxxxxxxx, and Alpha
Innotech, for itself and all Released Parties, expressly denies any and all
such
liability.
10. Joint
Participation In Preparation Of Agreement.
The
parties hereto participated jointly in the negotiation and preparation of this
Agreement. Accordingly, it is agreed that no rule of construction shall apply
against any party or in favor of any party. This Agreement shall be construed
as
if the parties jointly prepared this Agreement, and any uncertainty or ambiguity
shall not be interpreted against any one party and in favor of the
other.
11. Attorneys’
Fees And Costs.
As
further mutual consideration of the promises set forth herein, Alpha Innotech
and Xx. Xxxxxxxx agree that they each are responsible for their own attorneys’
fees and costs. Each agrees that they will not seek from the other reimbursement
for attorneys’ fees and/or costs incurred in this action or relating to any
matters addressed in this Agreement.
12. Section
Headings.
Section
headings in this Agreement are included for convenience of reference only and
shall not be considered a part of this Agreement for any other
purpose.
13. Scope
Of Agreement.
Xx.
Xxxxxxxx hereby affirms and acknowledges that he has read the foregoing
Agreement, and that he fully understands and appreciates the meaning of each
of
its terms, and that it is a voluntary, full and final compromise,
release
and settlement of all claims, known or unknown, with respect to the claims
identified and referred to herein. The parties to this Agreement represent
that
this Agreement may be used as evidence in any subsequent proceeding in which
any
of the parties alleges a breach of this Agreement or seeks to enforce its terms,
provisions or obligations.
14. Entire
Agreement.
This
Agreement hereto constitutes the complete understanding between Xx. Xxxxxxxx
and
Alpha Innotech and supersedes any and all prior agreements, promises,
representations, or inducements, no matter its or their form, concerning its
subject matter. No promises or agreements made subsequent to the execution
of
this Agreement by these parties shall be binding unless reduced to writing
and
signed by these parties or authorized representatives.
Dated:
October 26, 2006
/s/
Xxxxxx Xxxxxxxx
Xxxxxx
Xxxxxxxx
Dated:
October 27, 2006
By
/s/
Xxx Xxxxxxxxx
Name
Xxx
Xxxxxxxxx
Title
CEO
