SEPARATION AGREEMENT AND RELEASE OF CLAIMS
Exhibit 10.22
SEPARATION AGREEMENT AND RELEASE OF CLAIMS
THIS SEPARATION AND RELEASE AGREEMENT (the “Agreement”), dated December 11, 2002 is entered into by XX. XXXXX X. XXXXX (“Executive”) and NANOGEN, INC., a Delaware corporation (the “Company”).
WHEREAS, Executive and the Company have had a business relationship wherein Executive has been an officer, employee and director of the Company; and
WHEREAS, Executive wishes to resign from the Company as described herein; and
WHEREAS, Executive and the Company wish to end their relationship with all actual and potential disputes between them completely and amicably resolved:
NOW, THEREFORE, in consideration of the mutual covenants contained herein, and in consideration of the amounts to be paid by the Company to Executive under this Agreement, amounts which Executive is not otherwise entitled to receive, Executive and the Company hereby agree as follows:
1. Leave of Absence/Resignation from Company. Executive shall continue to be employed by the Company until December 31, 2002. Effective December 1, 2002 Executive will resign as a member of the Board of Directors of the Company and take a leave of absence from the Company for medical reasons. Until December 31, 2002 he shall continue to be an employee of the Company and be entitled the all of the benefits and obligations connected therewith. Executive shall resign from the Company and shall no longer be employed as an officer, employee and director of the Company on December 31, 2002 (“Severance Date”). Executive agrees that at all times he is employed with the Company, he will fully and faithfully discharge the duties and responsibilities of his position with the Company, as requested by the Company’s Executive Chairman.
2. Severance Compensation.
(a) Lump Sum Payment. The Company will make a lump sum payment of $225,000 to Executive equal to nine (9) months of Executive’s base salary on the Severance Date, minus standard tax, other required deductions and the amount of any money owed by Executive to the Company as described in Section 2(b) below.
(b) Loan Repayment. Executive and the Company had previously entered into a Loan Agreement whereby the Company provided Executive with a loan of $150,000 for which Executive executed a Secured Promissory Note, dated June 4, 2001 (the “Note”) to the Company and that was secured by a mortgage on Executive’s home. As of the Severance Date, the principal and interest due to the Company under the Loan is $167,329.24 (the “Outstanding Note Balance”). Pursuant to the Note, the Company shall deduct the Outstanding Note Balance from the Lump Sum Payment described in Section 2(a). Executive shall use any remaining
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amount from the Lump Sum Payment to pay taxes incurred by his receipt of such amount and for personal purposes.
(c) Extend Exercise Date for Vested Stock Options. As of the Severance Date, Executive has received either incentive stock options or nonqualified stock options to purchase up to 535,000 shares of the Company’s Common Stock as various exercise prices pursuant to the Company’s 1997 Stock Incentive Plan, as amended. Of this amount, 229,894 shall be vested as of the Severance Date and 305,106 shall remain unvested. As of the Severance Date, all of Executive’s unvested shares shall expire and all of Executive’s vested shares remain exercisable for a period of five (5) years from the Severance Date, subject to the restrictions described below in Section 6. Such options shall be subject to the U.S. tax laws and depending on such laws and the number of shares that are exercisable by Executive in any given year, incentive stock options may lose their favorable tax treatment and become nonqualified stock options. Any incentive stock options held by Executive with an exercise price below the closing price of the Company’s Common Stock on the Severance Date shall become nonqualified stock options on the Severance Date and any incentive stock options with an exercise price above the closing price of the Company’s Common Stock on the Severance Date shall remain incentive stock options for up to three (3) months after the Severance Date and thereafter shall become nonqualified stock options. Executive acknowledges and agrees that he must consult with his own tax advisor or attorney regarding the appropriate tax treatment for all of his incentive stock options and nonqualified stock options and that he is not depending on any employee of the Company to provide such advice.
3. Other Benefits. For a period of three months following the Severance Date, the Company shall pay the Executive’s COBRA costs for such benefit plans as may be offered during that time. Currently those plans are Blue Cross PPO, Guardian Dental, VSP Vision Plan and an EAP program. Other than as provided for in this Section 3, following the Severance Date, Executive shall not be eligible to participate in any of the Company’s employee benefit plans (including, without limitation, the 401(k) plan), fringe benefit programs, and group insurance arrangements, except under COBRA, the stock option agreements and stock vesting programs described in Section 2 (c) for the periods described therein.
4. Tax Liability. Executive shall be responsible for all tax liability associated with any payments made pursuant to Section 2, except as described herein.
5. Non-Competition. As consideration for the severance compensation described in Section 2 and in order to protect the Company’s trade secret and other “confidential information” of the Company as described below in Section 7, during a period of nine (9) months from the Severance Date, Executive shall not, other than with the prior written consent of the Board of Directors of the Company, engage, directly or indirectly, in any other business activity (whether or not pursued for pecuniary advantage) with a company currently commercializing microarray technology for use in clinical molecular diagnostics, provided that Executive may own less than two percent of the outstanding securities of any such publicly traded competing corporation. Any violation by Executive of this Section 5 shall result in the
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immediate cancellation of the extended exercise period for all options described in Section 2 and the Company may thereafter take whatever other legal steps it deems necessary to enforce this provision and protect the Company’s confidential information.
6. Nonsolicitation. During a period of two (2) years after the Severance Date, Executive will not directly or indirectly engage, encourage or participate in the solicitations of any employee or consultant of the Company to leave the Company for any reason or to devote less than all of any such employee’s efforts to the affairs of the Company.
7. Nondisclosure. During the term of this Agreement and thereafter, Executive shall not, without the prior written consent of management, disclose or use for any purpose (except in the course of his service under this Agreement and in furtherance of the business of the Company) confidential information or proprietary data of the Company, except as required by applicable law or legal process; provided, however, that “confidential information” shall not include any information known generally to the public or ascertainable from public or published information (other than as a result of unauthorized disclosure by Executive) or any information of a type not otherwise considered confidential by persons engaged in the same business or a business similar to that conducted by the Company. Executive agrees to deliver to the Company at the termination of his service, or at any other time that the Company may request, all memoranda, notes, plans, records, reports and other documents (and copies thereof) relating to the business of the Company which he may then possess or have under his control. Executive’s obligations to the Company under the Proprietary Information, Inventions and Dispute Resolution Agreement, dated April __, 2001 by and between the Company and Executive (the “Proprietary Inventions Agreement”) shall remain in full force and effect, notwithstanding the release contained herein, except that Section 2(f) of the Proprietary Inventions Agreement shall be replaced by Section 6 herein.
8. Release. Executive acknowledges that the severance package described herein is given in exchange for his signing this Agreement, and he is not otherwise entitled to receive such benefits from the Company. Executive agrees that the severance package is in full satisfaction of any claims, liabilities, demands or causes of action, known or unknown and he hereby releases and forever discharges the Company and each of its past and present directors, managers, officers, shareholders, agents, consultants, advisers, employees, attorneys, servants, parents, subsidiaries, employee benefit plans, predecessors, successors and assigns, and each of them separately and collectively (the “Releasees”) from any and all claims, liens, demands, causes of action, obligations, damages and liabilities of any nature whatsoever, known or unknown, that he ever had, now has or may hereafter claim to have against the Releasees. The release includes, but is not limited to:
(a) any and all claims relating to mental, physical or emotional injuries sustained from invasion of privacy, to defamation, to interference with prospective economic advantage, to intentional or negligent infliction of emotional distress, to Executive’s employment or nonemployment by the Company, to the termination of his employment, to any status, term or condition in such employment, or to any physical or mental harm or distress from such
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employment or from termination of such employment;:
(b) any and all claims under California statutory or decisional law pertaining to wrongful discharge, discrimination, retaliation or breach of contract or breach of public policy;
(c) any and all claims under the Fair Employment and Housing Act, Title VII of the Civil Rights Act of 1964 or the Americans with Disabilities Act;
(d) any and all claims for costs, expenses or attorneys’ fees;
(e) any claims to rehire rights; provided, however, that claims for vested benefits and claims for workers’ compensation and unemployment insurance benefits are not waived; and
(f) any and all claims relating to the tax obligation for which Executive may become liable as a result of this release or the payment of consideration referred to above.
Execution of this Agreement does not bar any claims for breach of this Agreement. The Company releases Executive from any claims it may have against Executive prior to the date of this Agreement, including (but not limited to) such claims as are specified in this Section 8. This Agreement recognizes the rights and responsibilities of the Equal Employment Opportunity Commission (“EEOC”) to enforce the statutes which come under its jurisdiction and is not intended to prevent Executive from participating in any investigation or proceeding conducted by the EEOC; provided, however, that nothing in this section limits or affects the finality or the scope of the release provided in this Section 8, the waiver provided in Section 9 or the agreement to submit claims to final and binding arbitration.
(g) Opportunity to Revoke. Executive acknowledges that he is aware that he has twenty-one (21) calendar days to decide whether to enter into this agreement and release of claims, and return this executed agreement to the Company. Executive agrees that he was offered twenty-one (21) calendar days to consider this agreement and release. This period is designed to allow Executive to consult with a financial advisor, accountant, attorney or anyone else whose advice Executive needs. Executive should consult appropriate advisors, including an attorney, during this period.
Executive further acknowledges that he is aware that he may revoke this agreement and release of claims within seven (7) business days after it is signed and received by the Company. He further agrees that he is aware that in the event he timely exercises his right of rescission he will have no rights to the severance payment or other rights under this Agreement offered by the Company. If this agreement and release is not revoked in a writing delivered to the Company in the time period set forth above, any severance payments due will be made on or before January 10, 2003.
9. Waiver. The parties expressly waive all rights under Section 1542 of the Civil Code
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of California which 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.”
The parties agree that the possibility that such unknown claims exist was taken into account in determining the amount of consideration to be paid for the giving of this Agreement.
10. Covenant Not To Xxx. Executive covenants and agrees that he will never, individually or with any person or in any way, commence or aid in any way, except as required by due legal process, prosecute or cause or permit to be commenced or prosecuted, any action or other proceeding based upon any claim which is the subject of this Agreement. This Agreement shall be deemed breached and a cause of action shall be deemed to have accrued immediately upon the commencement or prosecution of any action or proceeding contrary to this Agreement. Executive agrees that if he brings an action to challenge the enforceability of this Agreement, he will tender to a neutral escrow, as designated by the Company, all consideration that he received pursuant to this Agreement.
In the event of any breach of this Section 10, the Company shall be entitled to recover not only the amount of judgment which may be awarded against such releasee, but also all such other damages, costs and expenses as may be incurred by such releasee, including court costs, attorneys’ fees and all costs and expenses, taxable or otherwise, in preparing the defense of or defending against, or seeking or obtaining an abatement of or injunction against, any action or proceeding brought in violation of this Section 10 and in prosecuting any claim, counterclaim or cross-claim based hereon.
11. No Assignment; Authority. The parties represent and warrant that no other person had or has or claims any interest in the claims referred to in Section 8 above; that they have the sole right and exclusive authority to execute this Agreement; that they have the sole right to receive the consideration paid therefor; and that they have not sold, assigned, transferred, conveyed or otherwise disposed of any claim or demand relating to any matter covered by this Agreement.
12. No Admission. The parties acknowledge that the payment of consideration, referred to herein, is made solely for the purpose of purchasing peace and eliminating possible involvement in protracted litigation based upon disputed claims that the other could make and does not constitute an admission or concession of any liability on account of any of said claims, liability for which is expressly denied by all releasees.
13. Confidentiality. The parties covenant and agree to maintain the confidentiality of the existence and terms of this Agreement, including (without limitation) the nature and payment of consideration referred to in this Agreement and to make no voluntary statement,
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except as may be necessary for the purposes of audit, taxation returns or other disclosures required by law.
14. Miscellaneous Provisions.
(a) Notice. 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. certified mail, return receipt requested and postage prepaid. In the case of Executive, mailed notices shall be addressed to him at the home address which 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 Assistant Secretary.
(b) Waiver. No provision of this Agreement shall be modified, waived or discharged unless the modification, waiver or discharge is agreed to in writing and signed by Executive and by an authorized officer of the Company. 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) Whole Agreement. No agreements (including any employment agreement), representations or understandings (whether oral or written and whether express or implied) which are not expressly set forth in this Agreement have been made or entered into by either party with respect to the subject matter hereof, except that the Proprietary Inventions Agreement shall remain in full force and effect.
(d) Choice of Law. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of California (other than choice-of-law provisions).
(e) Arbitration. Any dispute arising out of or relating to this Agreement, or the breach termination or validity thereof (including the determination of the interpretation or scope of this agreement to arbitrate), shall be resolved first by mediation pursuant to the Employment Mediation Rules of the American Arbitration Association. If mediation is not successful, then the dispute shall be resolved by a single neutral arbitrator in binding arbitration administered by the American Arbitration Association under its Rules for the Resolution of Employment Disputes. The arbitration shall take place in San Diego, California, and judgment upon the award rendered by the arbitrator may be entered by any court having jurisdiction thereof. The Company shall bear the costs of arbitration if Executive prevails. If the Company prevails, Executive shall pay half the cost of the arbitration or $500.00, whichever is less. Each party shall pay its own attorneys’ fees, unless the arbitrator orders otherwise, pursuant to applicable law, except as provided in Section 10.
(f) Consultation with Counsel. Executive acknowledges that he has been
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advised and had the opportunity to consult legal counsel prior to signing this Agreement and that he is entering into this Agreement knowingly and voluntarily.
(g) Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision hereof, which shall remain in full force and effect.
(h) Assignment and Successors. Neither party shall assign any right or delegate any obligation hereunder without the other party’s written consent, and any purported assignment or delegation by a party hereto without the other party’s written consent shall be void. This Agreement shall be binding upon and inure to the benefit of the Company and its successors and Executive, his heirs, executors, administrators and legal representatives.
IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case of the Company by its duly authorized officer.
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By: |
/s/ XX. XXXXX X. XXXXX |
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Xx. Xxxxx X. Xxxxx |
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NANOGEN, INC. |
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By: |
/s/ XXXXXX X. XXXXXXXX |
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Xxxxxx X. Xxxxxxxx |
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Executive Chairman |
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