EXHIBIT 10.5
SEPARATION AGREEMENT AND GENERAL RELEASE
This SEPARATION AGREEMENT AND GENERAL RELEASE ("Agreement") is entered into
This 1St Day of September, 1999 ("Execution Date") by and between ACCUIMAGE
DIAGNOSTICS CORP, a Nevada corporation, with principal offices located at 000
Xxxxxx Xxxxx Xxxx., Xxxxx 000, Xxxxx Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 ("Company")
and Xxxxx X. Xxxxxxx, Ph.D., an Individual Residing At 0 Xxxxxxxx Xx., Xxx. 000,
Xxx Xxxxxxxxx, XX 00000 ("Poirson").
RECITALS
A. Company has employed Poirson since June 15, 1998, as its President and
CEO. Additionally, Poirson was a Director of the Company for the same period;
and
B. Certain issues have been raised regarding the terms and conditions of
Poirson's employment, which the parties now wish resolve without dispute and
pursuant to the following terms and conditions.
NOW, THEREFORE, in consideration of the mutual promises and undertakings in
this Agreement, it is mutually agreed as follows:
AGREEMENTS
1. TERMINATION OF EMPLOYMENT. Poirson has submitted his resignation, and
Company has accepted Poirson's resignation, effective on August 23, 1999 (the
"Termination Date"). As of that date, Poirson's employment and all positions and
assignments to and/or with the Company as well as all duties, responsibilities
and authorities with the Company terminated.
2. PAYMENT. Effective upon the Termination Date but subject to the
provisions of this Agreement, the parties agree as follows:
a) SEPARATION PAYMENT. Company agrees to pay Poirson a separation
payment consisting in the aggregate of the equivalent of two (2) months of his
current base salary (deemed to be the gross amount of Twenty-Three Thousand
Three Hundred Thirty-three Dollars and Thirty-three Cents ($23,333.33))
("Separation Payment"), payable by Company check on the Execution Date. Poirson
agrees to take all diligent and reasonable efforts to secure alternate
employment during this two month period from August 24, 1999 to October 23,
1999. In the event Poirson has not secured alternate employment as of October
23, 1999, Company agrees to pay Poirson for an additional four months, at the
rate of Five Thousand Eight Hundred Thirty-three Dollars and Thirty-three Cents
($5,833.33) per month (representing 50% of his current annual rate or any
pro-rata portion thereof), payable pursuant to the Company's regularly scheduled
payroll periods and practices ("Additional Separation Payments"), provided that
any portion of such Additional Severance Payments will cease on the earlier of
February 23, 2000 or the date on which Poirson secures alternate employment. All
Additional Separation Payments shall be made by Company check, mailed to the
address listed for Poirson above.
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b) STOCK OPTIONS. Effective as of the Termination Date, Company
grants to Poirson a bonus of 50,000 fully vested options exercisable to purchase
the Company's Common Stock at $0.47 per share in recognition of his services.
This grant is in addition to the 100,000 vested stock options previously granted
on his employment also exercisable at $0.47 per share, plus the 25,000 options
which are vesting in September, 1999 pursuant to his Employment Agreement. The
exercise period regarding all 175,000 stock options shall be extended to three
years following the Termination Date stated above. Poirson acknowledges that if
he exercises any previously granted incentive stock options more that three
months after the Termination Date, the favorable tax treatment afforded to
holders of incentive stock options will not be available to him.
c) DEFERRED COMPENSATION. Company acknowledges that Poirson
previously has deferred Fifty-Five Thousand Three Hundred Eighty-two Dollars and
Eighty-eight Cents ($55,382.88) of his compensation during his employment with
the Company and agrees to pay Poirson this amount, plus 5% interest accruing
from January 1, 1999 (which totals One Thousand Eight Hundred Fifty-five Dollars
and Thirty-two Cents ($1,855.32)), payable by Company check on the Execution
Date.
d) COMPANY AUTOMOBILE. Poirson will promptly transfer the title and
lease on the 1997 BMW 328ic over to Company's name, and Company agrees to pay
all fees incurred in connection with the transfer. Poirson will return the car
to the Company no later than the close of business on October 23, 1999, and
Company agrees to pay all fees, including lease fees and insurance fees, during
this period.
e) HEALTH BENEFITS. Company is not subject to the provisions of the
Consolidated Omnibus Budget Reconciliation Act of 1986, as amended ("COBRA").
Company will offer the coverage and pay the premiums necessary to enable the
Poirson to maintain his health coverage as currently provided under the
Company's group health plan from August 24, 1999 through the earlier of February
23, 2000 or whenever Poirson is eligible to obtain comparable coverage at
comparable cost through a subsequent employer.
f) FINAL EXPENSES. Company agrees to reimburse Poirson for his final
business expenses, which total One Thousand Seven Hundred Twenty Dollars and
Sixty-six Cents ($1,720.66), upon submission of appropriate documentation. This
payment is payable by Company check on the Execution Date. g) Poirson
specifically acknowledges that, as of the Termination Date, and except as
otherwise provided in this Agreement, he has received all salary, bonus,
vacation, commissions, compensation time and other payments to which he is or
may be entitled pursuant to law, any prior agreement, or any of the Company's
policies or programs, and that he accrues no other benefits, including health
insurance, or entitlements on or after the Termination Date, except as otherwise
provided in this Agreement.
3. COMPANY PROPERTY. Poirson represents that he has returned all items of
Company property he had or over which he had control, including, but not limited
to, any equipment belonging to the Company; all code and computer programs and
information of whatever nature; and any other materials, documents or
information, including, but not limited to, confidential information in his
possession or control that the Company owns all or some interest in and that he
will retain no copies thereof.
4. ACKNOWLEDGMENT AND RELEASE.
a) In consideration of the promises and undertakings contained in
this Agreement, which Poirson acknowledges exceed any payments, benefits and/or
other things of value to which he might otherwise be entitled under any policy,
plan, practice or procedure of the Company or pursuant to any prior agreement
and/or contract with the Company, Poirson agrees, for himself, his heirs,
executors, administrators
EXHIBIT 10.5
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and assigns to fully release and forever discharge the Company, including any
and all of its related and affiliated entities, employees, agents, attorneys,
shareholders, officers and/or directors, from any and all claims, causes of
action, liabilities, demands, damages, penalties, debts, obligations, whether
now known or unknown, existing, claimed to exist or which can ever arise out of
or result from or in connection with Poirson's employment with or termination
from the Company.
b) Without limiting the generality of the foregoing, Poirson
acknowledges that this Agreement shall operate as a complete bar to any
litigation, charges, complaints, grievances or based upon or in any way related
to (i) any prior employment agreements, incentive agreements or benefits or
retirement plans; (ii) any property, contract or tort claims, including wrongful
discharge, breach of employment contract, breach of the covenant of good faith
and fair dealing, retaliation, intentional or negligent infliction of emotional
distress, tortious interference with existing or prospective economic advantage,
negligence, misrepresentation, breach of privacy, defamation, loss of
consortium, breach of fiduciary duty, violation of public policy or any other
common law claim of any kind; (iii) any violation or alleged violation of Title
VII of the Civil Rights Act of 1964, as amended, the Age Discrimination in
Employment Act, as amended, the Older Workers Benefit Protection Act of 1990,
the Equal Pay Act, as amended, the Fair Labor Standards Act, the Employee
Retirement Income Security Act, the Americans With Disabilities Act, the
Consolidated Omnibus Budget Reconciliation Act, the California Fair Employment
and Housing Act, the California Family Rights Act, any and all provisions of the
California Labor Code, the California Unemployment Compensation Code, and the
California Workers' Compensation Act; (iv) any claims for severance pay, bonus,
sick leave, vacation or holiday pay, life insurance, health, disability or
medical insurance or any other fringe benefit; and (v) any claim relating to or
arising under any other local, state or federal statute or regulation or
principle of common law (whether in contract or in tort) governing the
employment of individuals, discrimination in employment and/or the payment of
wages or benefits.
c) Poirson understands that if any fact with respect to any matter
covered by this Agreement is found to be other than, or different from the facts
now believed by his to be true, he expressly accepts and assumes the risk of
such possible difference in facts and agree that this Agreement shall be, and
remain, in full force and effect notwithstanding such difference in fact.
Poirson acknowledges and warrants that there are no claims or actions currently
filed or pending relating to the subject matter of this Agreement.
5. CONSULTATION. As a material provision of this Agreement, Poirson
agrees, during the period of receiving Separation Payments, to make himself
available, at reasonable times and on a reasonable basis to consult with Company
and its several service providers, specifically including but not limited to the
members of its Board of Directors and Xxxxxx Xxxxxx, and otherwise to provide
advice and professional services reasonably required in order to complete his
current projects and to provide for an orderly transition of Company's
management and administrative activities.
6. GENERAL RELEASE. The release set forth above is a general release and,
except as expressly provided herein, is intended to encompass all known and
unknown, foreseen and unforeseen claims which either party may have against the
other, including all Associated Persons up to and including the date of this
Agreement. It is further understood and agreed that the parties expressly waive
all rights under Section 1542 of the Civil Code of the State of California and
any similar law of any state or territory of the United States. Said section
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."
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7. CONFIDENTIALITY AND PROPRIETARY INFORMATION.
a) CONFIDENTIALITY OF AGREEMENT. The parties specifically agree to
keep the fact and terms of this Agreement confidential. Poirson agrees to
discuss it only with his attorney, advisors, accountant and immediate family.
Company agrees to discuss it only with officers, directors, or agents with a
specific need to know and to specifically instruct such persons regarding the
obligations of this Agreement, including but not limited to the confidentiality
and non-disparagement provisions.
b) CONFIDENTIAL AND PROPRIETARY INFORMATION. Poirson shall forever
hold in strictest confidence and trust all trade secrets and confidential or
proprietary information of any nature and in any form which is treated as
confidential by Company and which is not generally known to the public, and will
not disclose it except for legitimate Company purposes and with the Company's
express written consent. For these purposes, confidential information means all
business information of whatever nature regarding the Company, its employees,
directors, customers and suppliers; its procedures, business methods, financial,
personnel and salary information; and identities and all other information
regarding or otherwise related to its customers and suppliers of goods and
services, any or all of which information is not otherwise generally known to
the public at large.
c) The Parties agree that the remedy at law for any breach of the
foregoing will be inadequate, and that either Party shall be entitled to seek
appropriate injunctive relief in addition to any remedy at law in case of any
breach of these provisions of this Section.
8. AUTHORITY. Both Parties warrant and represent that each has the sole
right and exclusive authority to execute this Agreement and Release, and that
neither is restricted in so doing.
9. COMPLETE AGREEMENT. This Agreement expresses the full and complete
agreement between the parties regarding the subject matter hereof, and any
modification of this Agreement shall not be effective unless it is in a writing
signed by all parties to this Agreement. No party has been or is being
influenced to any extent or is relying upon any representation, covenant or
statement by any other person unless set forth in this Agreement.
10. NO LIABILITY. The Parties agree and understand that the payment of
monies and giving of other consideration, and the execution of this release and
the agreements contained herein do not constitute nor shall be construed as an
admission of any liability whatsoever by the parties thereto, or the admission
of the validity of any claim made by or against either party.
11. GOVERNING LAW. This Agreement shall be governed by the law of the
State of California applicable to contracts executed and wholly performed
therein.
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