EXHIBIT 10.10
CONFIDENTIAL SEPARATION AGREEMENT
AND GENERAL RELEASE
THIS CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE (this
"Agreement") is entered into as of November 6, 2002 (the "Effective Date"), by
and between NeoTherapeutics, Inc., a Delaware corporation (the "Company") and
Xxxxxxxx X. Xxxxxx, Ph.D., an individual ("Executive").
RECITALS
WHEREAS, Executive is employed by the Company pursuant to that
certain executive employment agreement dated as of December 1, 2002 (the
"Employment Agreement");
WHEREAS, Executive and the Company (collectively, the "Parties")
have agreed that Executive's employment as an officer and employee of the
Company shall terminate as of the Effective Date;
WHEREAS, the Parties wish to specify the terms of the termination
and resolve any outstanding issues between them.
AGREEMENT
NOW THEREFORE, in consideration of the representations and
agreements contained herein, and of other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and intending to be
bound hereby, the Company and Executive hereby agree to terminate their
employment relationship on the following basis:
1. Termination of the Employment Agreement. The Employment Agreement and
each Party's rights thereunder are hereby terminated, including, without
limitation, Executive's right to receive any "Base Salary" (as defined in the
Employment Agreement), bonus or other compensation, or any entitlement to
severance or other payments upon termination of employment under the Employment
Agreement.
2. Separation. Executive and Company hereby agree that Executive's
employment as Vice President, Scientific Affairs and an employee of the Company
shall terminate as of the Effective Date. Executive understands and agrees that
she is giving up any right or claim to future employment with the Company and
any compensation or benefit of such employment, including any compensation
and/or benefits owed to the Executive pursuant to the Employment Agreement,
except for compensation and/or benefits provided for in this Agreement.
Executive acknowledges that she has received all compensation and benefits due
to her through the Effective Date.
3. Compensation. In consideration of the termination of Executive's
employment pursuant to the terms of this Agreement:
(a) As of the Effective Date, Executive shall be paid the
following: (i) $ 43,269.30 in lieu of severance, (ii) $ 13,411.30 in full
payment of Executive's accrued and unpaid vacation pay, and (iii) $ 2812.50 as
full payment of all deferred salary owed to Executive.
(b) All stock options previously granted to Executive shall
become fully vested as of the Effective Date, and Executive shall be entitled to
exercise such options in whole or in part from time to time during the one year
period commencing on the Effective Date. Executive agrees that, notwithstanding
any other provision in the Company's stock option plan or the stock option
agreements between the Company and Executive, nothing in this Agreement or the
terms of the consulting agreement set forth in Section 5 hereof shall entitle
Executive to exercise any stock options beyond the one year period following the
Effective Date.
(c) As of the Effective Date, the Company hereby transfers to
Executive ownership of (i) the laptop computer and accessories (docking station,
monitor, keyboard, mouse, stand, speakers and printer) provided to her by the
Company in consideration of the payment by Executive to the Company of $150 and
(ii) the cellular telephone provided to her by the Company. After the Effective
Date, Executive agrees to assume and pay all costs of the laptop computer and
cellular telephone or their use.
4. Options. Executive and the Company are parties to certain written
agreements pursuant to which Executive has been granted options to purchase
stock in the Company. Executive acknowledges that although such options might be
identified as incentive stock options, such options may not be qualified for
treatment as incentive stock options, either now or in the future. Executive is
advised to consult with her personal tax advisor to determine whether the
options are qualified for treatment as incentive stock options. Except as set
forth in Section 3(b) and this Section 4, Executive's rights under her existing
option agreements are not intended to be modified by this Agreement in any way.
5. Future Consulting. Executive shall provide consulting services to the
Company as may be reasonably requested by the Company from time to time up to
and through December 31, 2003, such requests to be made on reasonable notice to
Executive and such services to be performed solely during ordinary business
hours. It is the express intent of the parties that Executive shall provide
consulting services to the Company as an independent contractor pursuant to this
Agreement. Executive will not be an employee of the Company after the Effective
Date, and Executive shall not hold herself out to be an employee of the Company,
and shall not have the authority to enter into or bind the Company to any
contract, promise, or obligation under any circumstances. The Company is
interested only in the results to be achieved by Executive under this Agreement,
and the manner and method of performing all services of Executive under this
Agreement, and achieving the desired results, shall be under the exclusive
control of Executive. The Company shall have no right or authority to direct or
control Executive with respect to the performance of Executive's services under
this Agreement, except as otherwise provided by this Agreement.
The Company shall compensate Executive for consulting services
actually rendered hereunder at the rate of $150 per hour and reimburse her for
other amounts actually expended by Executive in the course of performing her
duties as a consultant to the Company, if such amounts are approved in writing
by the Company beforehand and Executive tenders
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receipts or other documentation reasonably substantiating the amounts as
required by the Company.
6. Return of Company Property. Except as expressly provided for herein,
at the Company's request, the Executive will return to the Company all files,
records, credit cards, keys, equipment, and any other property of the Company or
documents maintained by her for the Company's use or benefit, on or before the
Effective Date.
7. Confidentiality. The Parties acknowledge that this Agreement and all
matters relating to or leading up to the negotiation and effectuation of this
Agreement are confidential and shall not be disclosed to any third party except
as follows: the Company may disclose the terms of this Agreement to the public
as required by law, including without limitation, the Securities Act of 1933, as
amended, and the Securities Exchange Act of 1934, as amended; the Company may
disclose the terms of this Agreement to Company employees with a business
purpose for receiving such information; the Parties may disclose the terms of
the Agreement to their respective legal, accounting and tax advisors to the
extent necessary for them to perform services; and the Parties may disclose the
terms of this Agreement to the Internal Revenue Service and the California
Franchise Tax Board as required by law, rule or regulation, or as otherwise
required by law or necessary to enforce the terms of this Agreement. If any
disclosure is made as permitted by this paragraph other than to governmental
authorities as required by law, then such persons or entities shall be cautioned
about the confidentiality obligations imposed by this Agreement.
8. Non-Disclosure, Non-Competition and Non-Solicitation.
(a) Executive agrees that she will not disclose at any time,
other than to an authorized employee, officer, director or agent of the Company,
any information relating to the Company's business, trade, practices, trade
secrets or know-how or proprietary information without the Company's prior
express written consent. Following the Effective Date, Executive shall be
permitted to continue in her usual occupation and shall not be prohibited from
competing with the Company. Executive agrees that until December 31, 2003,
Executive shall not directly or indirectly solicit, induce, recruit or encourage
any of the Company's employees to leave their employment or take away such
employees to leave their employment or take away such employees or attempts to
solicit, induce, recruit, encourage or take away employees of the Company.
(b) Executive understands and agrees that future payments under
this Agreement may be terminated by the Company if she violates this provision
in addition to any other remedies available under applicable law. In the event
the Company terminates payments pursuant to this Section, Executive may
challenge such termination in accordance with Section 15 below. In the event of
any other breach or violation of this Agreement, the party asserting a breach or
violation of the Agreement may seek remedies otherwise available under
applicable law or another provision of this Agreement in accordance with Section
15 below.
9. General Release by Executive.
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(a) Release of Claims. Executive does hereby for herself and her
respective heirs, successors and assigns, release, acquit and forever discharge
the Company, its parents, subsidiaries and affiliates and any of their officers,
directors, managers, employees, representatives, related entities, successors
and assigns, and all persons acting by, through or in concert with them (the
"Company Releasees") of and from any and all claims, actions, charges,
complaints, causes of action, rights, demands, debts, damages, or accountings of
whatever nature, known or unknown which Executive may have against the Company
Releasees, or any of them, based on any actions or events which occurred prior
to the effective date of this Agreement, including, but not limited to, those
related to, or arising from, Executive's employment with the Company or the
termination thereof, including, without limitation, any claims under Title VII
of the Civil Rights Act of 1964, the Americans with Disabilities Act and the
California Fair Employment and Housing Act (collectively, the "Claims" or
individually, "Claim"); provided, however, that the release set forth in this
Section 10(a) shall not be effective with respect to any Company Releasee, other
than the Company, who commences any claim, action or proceeding against
Executive based on any actions or events which occurred prior to the effective
date of this Agreement.
(b) Release of Unknown Claims. In addition, Executive expressly
waives all rights under Section 1542 of the Civil Code of the State of
California, which reads as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH A CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HER MUST HAVE MATERIALLY
AFFECTED HER SETTLEMENT WITH THE DEBTOR.
(c) No Assignment of Claims. Executive represents and warrants to
the Company Releasees that there has been no assignment or other transfer of any
interest in any Claim which Executive may have against the Company Releasees, or
any of them, and Executive agrees to indemnify and hold the Company Releasees
harmless from any liability, claims, demands, damages, costs, expenses and
attorneys' fees incurred as a result of any person asserting any such assignment
or transfer of any rights or Claims if Executive has made such assignment or
transfer from such party.
(d) No Suits or Actions. Executive represents and warrants to the
Company that there have been no claims, suits, actions, complaints, or charges
filed by her against the Company Releasees, or any of them. Executive agrees
that if she hereafter commences, joins in, or in any manner seeks relief through
any suit arising out of, based upon, or relating to any of the Claims released
hereunder, or in any manner asserts against the Company Releasees, or any of
them, any of the Claims released hereunder, then she will pay to the Company
Releasees against whom such claim(s) is asserted, in addition to any other
damages caused thereby, all attorneys' fees incurred by such Company Releasees
in defending or otherwise responding to said suit or Claim.
(e) No Admission. Executive further understands and agrees that
neither the payment of money nor the execution of this Release shall constitute
or be construed as an admission of any liability whatsoever by the Company
Releasees.
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10. General Release by the Company.
(a) Release of Claims. The Company does hereby for itself and its
respective successors and assigns, release, acquit and forever discharge
Executive and her heirs, estates, successors and assigns, and all persons acting
by, through or in concert with them (the "Executive Releasees") of and from any
and all claims, actions, charges, complaints, causes of action, rights, demands,
debts, damages, or accountings of whatever nature, known or unknown which the
Company may have against the Executive Releasees, or any of them, based on any
actions or events which occurred prior to the effective date of this Agreement,
including, but not limited to, those related to, or arising from, Executive's
employment with the Company or the termination thereof (collectively, the
"Claims" or individually, "Claim").
(b) Release of Unknown Claims. In addition, the Company expressly
waives all rights under Section 1542 of the Civil Code of the State of
California, which reads as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH A CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HER MUST HAVE MATERIALLY
AFFECTED HER SETTLEMENT WITH THE DEBTOR.
(c) No Assignment of Claims. The Company represents and warrants
to the Executive Releasees that there has been no assignment or other transfer
of any interest in any Claim which the Company may have against the Executive
Releasees, or any of them, and the Company agrees to indemnify and hold the
Executive Releasees harmless from any liability, claims, demands, damages,
costs, expenses and attorneys' fees incurred as a result of any person asserting
any such assignment or transfer of any rights or Claims if the Company has made
such assignment or transfer from such party.
(d) No Suits or Actions. The Company agrees that if it hereafter
commences, joins in, or in any manner seeks relief through any suit arising out
of, based upon, or relating to any of the Claims released hereunder, or in any
manner asserts against the Executive Releasees, or any of them, any of the
Claims released hereunder, then it will pay to the Executive Releasees against
whom such claim(s) is asserted, in addition to any other damages caused thereby,
all attorneys' fees incurred by such Executive Releasees in defending or
otherwise responding to said suit or Claim.
(e) No Admission. The Company further understands and agrees that
neither the payment of money nor the execution of this Release shall constitute
or be construed as an admission of any liability whatsoever by the Executive
Releasees.
11. Nondisparagement. The Parties shall not make any disparaging or
derogatory comments, public or otherwise, concerning each other, and Executive
shall refrain from making any disparaging comments, public or otherwise,
concerning any employees, officers or directors of the Company.
12. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto and their
respective successors and assigns.
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Notwithstanding the foregoing, neither this Agreement nor any rights hereunder
may be assigned to any party by the Company or Executive without the prior
written consent of the other party hereto.
13. Entire Agreement/No Oral Modification. This Agreement contains all
of the terms, promises, representations, and understandings, oral or written,
made between the Company and Executive with respect to the subject matter hereof
and supersedes all prior representations, understandings, or agreements, oral or
written, between the Company and Executive, with respect to such matters, which
the Parties acknowledge have been merged into this Agreement. This Agreement may
not be modified other than with a writing executed by both parties and stating
an intent to modify this agreement.
14. Governing Law. This Agreement shall be governed by the laws of the
State of California, without regard for conflict of law principles.
15. Arbitration; Waiver of Jury Trial. Except for claims for equitable
or injunctive relief which cannot be timely addressed through arbitration (which
claims may be brought in any state or federal court in Orange County,
California), the parties hereby agree to submit any claim or dispute arising out
of the terms of this Agreement, including, without limitation, claims regarding
confidentiality under Section 8 of this Agreement and/or any dispute arising out
of or relating to Executive's employment or consulting relationship with the
Company in any way, to private and confidential arbitration by a single neutral
arbitrator through JAMS. All arbitration proceedings shall be governed by the
then current JAMS rules governing employment disputes, and shall take place in
Orange County, California. The decision of the arbitrator shall be rendered in
writing and shall be final and binding on all parties to this Agreement.
Judgment thereon may be entered in any court having jurisdiction. The Company
shall advance the arbitrator's fee and all costs of services provided by the
arbitrator and arbitration organization; however, all costs of the arbitration
proceeding or litigation to enforce this Agreement, including attorneys' fees
and witness expenses, may be awarded to the prevailing party in addition to such
other relief as the arbitrator may determine. Except for claims for equitable or
injunctive relief which cannot be timely addressed through arbitration (which
claims may be brought in any state or federal court in Orange County,
California), this arbitration procedure is intended to be the exclusive method
of resolving any claim relating to the obligations set forth in this Agreement.
Executive hereby waives any right to a jury trial on any dispute or claim
covered by this paragraph.
16. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute the same instrument.
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IN WITNESS WHEREOF, this Agreement is executed by the parties set
forth below as of the date first indicated above.
THE COMPANY EXECUTIVE
NEOTHERAPEUTICS, INC. XXXXXXXX X. XXXXXX, PH.D.,
a Delaware corporation an individual
By: /s/ Xxxx X. XxXxxxx /s/ Xxxxxxxx X. Xxxxxx
--------------------------------- ----------------------------------
Title: V.P. Strategic Planning &
Finance
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