EXHIBIT 10.1
SEPARATION AGREEMENT
AND GENERAL RELEASE OF ALL CLAIMS
This Separation Agreement and General Release of All Claims
("Agreement") is made by and between Genetronics, Inc. ("Company") and Xxxxx
Xxxxxx ("Employee") with respect to the following facts:
A. Employee was terminated by Company on January 7, 2002.
B. Company and Employee wish to reach an amicable settlement regarding
Employee's termination.
C. The parties desire to settle all claims and issues that have, or
could have been raised, in relation to Employee's employment with Company and
arising out of or in any way related to the acts, transactions or occurrences
between Employee and Company to date, including, but not limited to, Employee's
employment with Company or the termination of that employment, on the terms set
forth below.
THEREFORE, in consideration of the promises and mutual agreements
hereinafter set forth, it is agreed by and between the undersigned as follows:
1. Severance. Company agrees to pay Employee the equivalent of twelve
(12) weeks' base salary in total, or Six Thousand Nine Hundred Twenty-Three
Dollars and Seven Cents ($6,923.07), less all appropriate federal and state
income and employment taxes ("Severance Payment) every two weeks in accordance
with the Company's normal payroll, a sum to which Employee is not otherwise
entitled. The Severance Payment will begin on the first regularly scheduled
payday following the date this Agreement is signed by Employee and end when
twelve weeks salary has been paid. Additionally, all options of Employee listed
on Exhibit A attached hereto are vested as of the effective date of this
Agreement. Company agrees to extend the period for the exercise of all existing
stock options of Employee from April 7, 2002 until April 30, 2003. The options
not exercised by Employee by April 30, 2003 shall terminate without further
action by the Company. Employee acknowledges and agrees that this Severance
Payment and extension of the period in which to exercise his stock options
constitutes adequate legal consideration for the promises and representations
made by Employee in this Agreement.
2. General Release.
2.1 Employee unconditionally, irrevocably and absolutely releases and
discharges Company, and any parent and subsidiary corporations, divisions and
affiliated corporations, partnerships or other affiliated entities of Company,
past and present, as well as Company's employees, officers, directors, agents,
successors and assigns (collectively, "Released Parties"), from all claims
related in any way to the transactions or occurrences between them to date, to
the fullest extent permitted by law, including, but not limited to, Employee's
employment with Company, the termination of Employee's employment, and all other
losses, liabilities, claims, charges, demands and causes of action, known or
unknown, suspected or unsuspected, arising directly or indirectly out of or in
any way connected with Employee's employment with Company. This release is
intended to have the broadest possible application and includes, but is not
limited to, any tort, contract, common law, constitutional or other statutory
claims, including, but not limited to alleged violations of the California Labor
Code or the federal Fair Labor Standards Act, Title VII
of the Civil Rights Act of 1964 and the California Fair Employment and Housing
Act, the Americans with Disabilities Act, and all claims for attorneys' fees,
costs and expenses.
2.2 Employee acknowledges that Employee may discover facts or law
different from, or in addition to, the facts or law that Employee knows or
believes to be true with respect to the claims released in this Agreement and
agrees, nonetheless, that this Agreement and the release contained in it shall
be and remain effective in all respects notwithstanding such different or
additional facts or the discovery of them.
2.3 Employee declares and represents that Employee intends this
Agreement to be complete and not subject to any claim of mistake, and that the
release herein expresses a full and complete release and, regardless of the
adequacy or inadequacy of the consideration, Employee intends the release herein
to be final and complete. Employee executes this release with the full knowledge
that this release covers all possible claims against the Released Parties, to
the fullest extent permitted by law.
2.4 Employee expressly waives Employee's right to recovery of any type,
including damages or reinstatement, in any administrative or court action,
whether state or federal, and whether brought by Employee or on Employee's
behalf, related in any way to the matters released herein.
3. California Civil Code Section 1542 Waiver. Employee expressly
acknowledges and agrees that all rights under Section 1542 of the California
Civil Code are expressly waived. That section 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.
4. Representation Concerning Filing of Legal Actions. Employee
represents that, as of the date of this Agreement, Employee has not filed any
lawsuits, charges, complaints, petitions, claims or other accusatory pleadings
against Company or any of the other Released Parties in any court or with any
governmental agency. Employee further agrees that, to the fullest extent
permitted by law, Employee will not prosecute, nor allow to be prosecuted on
Employee's behalf, in any administrative agency, whether state or federal, or in
any court, whether state or federal, any claim or demand of any type related to
the matters released above, it being the intention of the parties that with the
execution of this release, the Released Parties will be absolutely,
unconditionally and forever discharged of and from all obligations to or on
behalf of Employee related in any way to the matters discharged herein.
5. No Admissions. By entering into this Agreement, the Released Parties
make no admission that they have engaged, or are now engaging, in any unlawful
conduct. The parties understand and acknowledge that this Agreement is not an
admission of liability and shall not be used or construed as such in any legal
or administrative proceeding.
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6. Severability. In the event any provision of this Agreement shall be
found unenforceable by an arbitrator or a court of competent jurisdiction, the
provision shall be deemed modified to the extent necessary to allow
enforceability of the provision as so limited, it being intended that Company
shall receive the benefits contemplated herein to the fullest extent permitted
by law. If a deemed modification is not satisfactory in the judgment of such
arbitrator or court, the unenforceable provision shall be deemed deleted, and
the validity and enforceability of the remaining provisions shall not be
affected thereby.
7. Applicable Law. The validity, interpretation and performance of this
Agreement shall be construed and interpreted according to the laws of the United
States of America and the State of California.
8. Binding on Successors. The parties agree that this Agreement shall
be binding on, and inure to the benefit of, Employee or its successors, heirs
and/or assigns.
9. Full Defense. This Agreement may be pled as a full and complete
defense to, and may be used as a basis for an injunction against, any action,
suit or other proceeding that may be prosecuted, instituted or attempted by
Employee in breach hereof. Employee agrees that in the event an action or
proceeding is instituted by the Released Parties in order to enforce the terms
or provisions of this Agreement, the Released Parties shall be entitled to an
award of reasonable costs and attorneys' fees incurred in connection with
enforcing this Agreement.
10. Good Faith. The parties agree to do all things necessary and to
execute all further documents necessary and appropriate to carry out and
effectuate the terms and purposes of this Agreement.
11. Entire Agreement; Modification. This Agreement is intended to be
the entire agreement between the parties and supersedes and cancels any and all
other and prior agreements, written or oral, between the parties regarding this
subject matter. It is agreed that there are no collateral agreements or
representations, written or oral, regarding the terms and conditions of
Employee's separation of employment with Company and settlement of all claims
between the parties other than those set forth in this Agreement. This Agreement
may be amended only by a written instrument executed by all parties hereto.
THE PARTIES TO THIS AGREEMENT HAVE READ THE FOREGOING AGREEMENT AND FULLY
UNDERSTAND EACH AND EVERY PROVISION CONTAINED HEREIN. WHEREFORE, THE PARTIES
HAVE EXECUTED THIS AGREEMENT ON THE DATES SHOWN BELOW.
Dated: April 17, 2002 By: /s/ Xxxxx Xxxxxx
----------------- ----------------------------------------
XXXXX XXXXXX
Genetronics, Inc.
Dated: April 17, 2002 By: /s/ Xxxxx Xxxxxxx
----------------- ----------------------------------------
XXXXX XXXXXXX, M.D.
PRESIDENT AND CEO
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EXHIBIT A: GRANT DETAIL REPORT
As of 4/19/2002
--------------------------------------------------------------------------------
Xxxxx Xxxxxx
00000 Xxxxxx Xxxxxxxx
Xxx Xxxxx, XX 00000
SSN: ###-##-####
Options Option Options Options Options
Grant Date Expiration Date Plan ID Grant Type Granted Price Outstanding Vested Exercisable
------------------------------------------------------------------------------------------------------------------------------
8/1/2000 4/30/2003 00 Incentive 100,000 $1.25 100,000 100,000 100,000
8/25/2000 4/30/2003 00 Incentive 2,000 $1.50 2,000 2,000 2,000
5/17/2001 4/30/2003 00 Incentive 25,000 $1.57 25,000 25,000 25,000
10/24/2001 4/30/2003 00 Incentive 30,000 $0.45 30,000 30,000 30,000
------------------------------------------------------------------------------------------------------------------------------
Optionee Total 157,000 157,000 157,000 157,000
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