EXHIBIT 10.25
CONFIDENTIAL SEPARATION AGREEMENT
AND GENERAL RELEASE OF ALL CLAIMS
This Confidential Separation Agreement and General Release of All Claims
("Agreement") is made by and between Genetronics, Inc. ("Genetronics") and Xxxxx
Xxxxxxx, Xx. ("Xxxxxxx") with respect to the following:
X. Xxxxxxx acted as the President and Chief Executive Officer of
Genetronics from May 14, 2001 to September 20, 2001 ("Separation
Date").
B. The parties desire to settle all claims and issues that have, or
could have been raised, in relation to Xxxxxxx'x employment with
Genetronics and arising out of or in any way related to the acts,
transactions or occurrences between Xxxxxxx and Genetronics to
date.
THEREFORE, in consideration of the promises and mutual agreements
hereinafter set forth, it is agreed by and between the undersigned as follows:
A. Automobile. As a benefit of his position with Genetronics,
Xxxxxxx was provided with the use of a Company leased vehicle.
Xxxxxxx agrees to return the vehicle to Genetronics' possession
in San Diego, California no later than midnight, November 30,
2001 or to otherwise assume the remainder of the lease on the
vehicle if Genetronics can secure a release of liability from the
leasing company for such transaction.
B. Apartment Lease. Xxxxxxx entered into a lease for an apartment in
Del Mar, CA on June 1, 2001. This lease was executed in Xxxxxxx'x
personal capacity. In consideration for entering this Agreement,
Genetronics agrees to assume the responsibility for all remaining
lease payments beginning on October 1, 2001 until lease
termination.
C. Stock Options. Xxxxxxx was granted 250,000 vesting incentive
stock options of the Company's stock, at a strike price of $1.35,
50,000 of which vested upon Xxxxxxx beginning employment with the
Company and 50,000 stock options vested at the end of each of the
first four months during which Xxxxxxx served as President and
CEO of the Company under the employment agreement. Xxxxxxx'x
employment was terminated prior to the end of September 2001;
therefore, all options except the 50,000 options for September
2001 are vested. The 50,000 options for September are cancelled
with the remaining 200,000 options vested.
D. Business Expenses. Xxxxxxx has incurred certain business expenses
in his capacity as President and CEO in the amount of $56,376.98.
Genetronics has advanced or paid to Xxxxxxx the amount of
$39,142.62. The remaining balance due to Xxxxxxx is $17, 334.36.
This amount will be reimbursed upon execution of this Agreement.
E. Resignation. Genetronics agrees to characterize Xxxxxxx'x
separation as a voluntary resignation.
F. Resignation from the Board of Directors. Xxxxxxx agrees that by
executing this Agreement he also resigns from the Genetronics and
Genetronics Biomedical Corporation Boards of Directors effective
immediately.
1. General Release.
a. The parties hereto unconditionally, irrevocably and
absolutely release and discharge each other (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, Xxxxxxx'x position with Genetronics, the
termination of Xxxxxxx'x position, 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 Xxxxxxx'x position with Genetronics. 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, the Age Discrimination in
Employment Act of 1967, as amended, and all claims for
attorneys' fees, costs and expenses.
b. The parties acknowledge that they may discover facts or
law different from, or in addition to, the facts or law
that they know or believe to be true with respect to the
claims released in this Agreement and agree, 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.
c. The parties declare and represent that they intend 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, the parties intend the
release herein to be final and complete. The Parties
execute this release with the full knowledge that this
release covers all possible claims against the Released
Parties, to the fullest extent permitted by law.
d. The Parties expressly waive their right to recovery of any
type, including damages or reinstatement, in any
administrative or court action, whether state or federal,
and whether brought by a party or on a party's behalf,
related in any way to the matters released herein.
2. California Civil Code Section 1542 Waiver. The parties expressly
acknowledge and agree 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
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MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
3. Representation Concerning Filing of Legal Actions. The parties represent
that, as of the date of this Agreement, they have not filed any lawsuits,
charges, complaints, petitions, claims or other accusatory pleadings against
each other in any court or with any governmental agency. The parties further
agree that, to the fullest extent permitted by law, they will not prosecute, nor
allow to be prosecuted on their 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 each other related in any way to the matters discharged
herein.
4. Nondisparagement. The parties agree that they will not make any
voluntary statements, written or oral, or cause or encourage others to make any
such statements that defame, disparage or in any way criticize the personal
and/or business reputations, practices or conduct of each other.
5. Confidentiality and Return of Genetronics Property.
a. Confidential Separation Information. The parties agree that the
terms and conditions of this Agreement, as well as the
discussions that led to the terms and conditions of this
Agreement (collectively referred to as the "Confidential
Separation Information") are intended to remain confidential
between Xxxxxxx and Genetronics. The parties further agree that
they will not disclose the Confidential Separation Information to
any other persons, except that they may disclose such information
to to their attorney(s) and accountant(s), if any, to the extent
needed for legal advice or income tax reporting purposes and
Xxxxxxx may disclose the terms of this Agreement with his wife.
When releasing this information to any such person, the parties
shall advise the person receiving the information of its
confidential nature. Neither party, nor anyone to whom the
Confidential Separation Information has been disclosed will
respond to, or in any way participate in or contribute to, any
public discussion, notice or other publicity concerning the
Confidential Separation Information. Without limiting the
generality of the foregoing, the parties specifically agree that
neither they, their attorneys nor their accountants, if any,
shall disclose the Confidential Separation Information to any
current, former or prospective employee of Genetronics, except
for those who have a need to know the Information. Nothing in
this section will preclude the parties from disclosing
information required in response to a subpoena duly issued by a
court of law or a government agency having jurisdiction or power
to compel such disclosure, or from giving full, truthful and
cooperative answers in response to a duly issued subpoena.
b. Confidential or Proprietary Information. Xxxxxxx also agrees that
he will not use, remove from Genetronics' premises, make
unauthorized copies of or disclose any confidential or
proprietary information of Genetronics or any affiliated or
related entities, including but not limited to, their trade
secrets, copyrighted information, customer lists, any information
encompassed in any research and development, reports, work in
progress, drawings, software,
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computer files or models, designs, plans, proposals, marketing
and sales programs, financial projections, and all concepts or
ideas, materials or information related to the business or sales
of Genetronics and any affiliated or related entities that has
not previously been released to the public by an authorized
representative of those companies.
c. Continuing Obligations. If Xxxxxxx has signed a Confidentiality
or Proprietary Rights Agreement (or any other agreement
protecting the confidentiality of Genetronics information),
Xxxxxxx understands that certain terms and conditions of that
agreement survive the termination of Xxxxxxx'x employment and as
such Xxxxxxx agrees to abide by such surviving provisions of the
agreement.
d. Return of Company Property. Xxxxxxx understands and agrees that
as a condition of this Agreement , all Company property must be
returned to Genetronics on or before the Separation Date. By
signing this Agreement, Xxxxxxx represents and warrants that he
will have returned to Genetronics on or before the Separation
Date, all Genetronics property, including all confidential and
proprietary information, and all materials and documents
containing trade secrets and copyrighted materials, including all
copies and excerpts of the same.
e. Non-Solicitation. Xxxxxxx understands and agrees that
Genetronics' employees and customers and any information
regarding Genetronics employees and/or customers is confidential
and constitutes trade secrets. As such, for a period of one year
following the Separation Date, Xxxxxxx agrees not to, directly or
indirectly, separately or in association with others:
1. Interfere with, impair, disrupt or damage Genetronics'
relationship with any of its customers or prospective
customers by soliciting, or encouraging or causing others
to solicit or encourage, any of them for the purpose of
diverting or taking away the business such customers have
with Genetronics; or
2. Interfere with, impair, disrupt or damage Genetronics'
business by soliciting, encouraging or causing others to
solicit or encourage any of Genetronics' employees or
consultants to discontinue their employment or consulting
relationship with Genetronics.
6. Arbitration of Disputes. The parties agree to arbitrate any and all
disputes arising out of or relating to the enforcement of this Agreement, or for
the breach hereof, or the interpretation hereof. The arbitration shall be before
a single, neutral arbitrator selected by the parties. If the parties are unable
to agree on a single neutral arbitrator, the arbitrator shall be selected in
accordance with the rules of the American Arbitration Association for Employment
Disputes. The arbitrator shall have the power to enter any award that could be
entered by a judge of a trial court of the State of California, and only such
power, and shall follow the law. In the event the arbitrator does not follow the
law, the arbitrator will have exceeded the scope of his or her authority and the
parties may, at their option, file a motion to vacate the award in court. The
parties agree to abide by and perform any award rendered by the arbitrator. The
arbitrator
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shall issue the award in writing and therein state the essential findings and
conclusions on which the award is based. Judgment on the award may be entered in
any court having jurisdiction thereof. In no event shall the demand for
arbitration be made after the date when institution of legal or equitable
proceedings based on such claim, dispute or other matter in question would be
barred by the applicable statute of limitations. This agreement to arbitrate
shall be specifically enforceable under the prevailing arbitration law, and
shall be in accordance with the procedures established for arbitration in the
California Code of Civil Procedure. The parties understand that by agreeing to
arbitrate their disputes, they are giving up their right to have their disputes
heard in a court of law and, if applicable, by a jury.
7. 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.
8. Older Workers' Benefit Protection Act. This Agreement is intended to
satisfy the requirements of the Older Workers' Benefit Protection Act, 29 U.S.C.
sec. 626(f). The following general provisions, along with the other provisions
of this Agreement, are agreed to for this purpose:
x. Xxxxxxx acknowledges and agrees that he has read and understands
the terms of this Agreement.
x. Xxxxxxx acknowledges that this Agreement advises him in writing
that he may consult with an attorney before executing this
Agreement, and that he has obtained and considered such legal
counsel as he deems necessary, such that he is entering into this
Agreement freely, knowingly, and voluntarily.
x. Xxxxxxx acknowledges that he has been given at least twenty-one
(21) days in which to consider whether or not to enter into this
Agreement. Xxxxxxx understands that, at his option, Xxxxxxx may
elect not to use the full 21-day period.
d. This Agreement shall not become effective or enforceable until
the eighth day after Xxxxxxx signs this Agreement. In other
words, Xxxxxxx may revoke his acceptance of this Agreement within
seven (7) days after the date he signs it. Xxxxxxx'x revocation
must be in writing and received by the Genetronics representative
designated to sign this Agreement by 5:00 p.m. P.D.T. on the
seventh day in order to be effective. If Xxxxxxx does not revoke
acceptance within the seven (7) day period, Xxxxxxx'x acceptance
of this Agreement shall become binding and enforceable on the
eighth day ("Effective Date").
1. This Agreement does not waive or release any rights or
claims that Employee may have under the Age Discrimination
in Employment Act that arise after the execution of this
Agreement.
9. Severability. In the event an arbitrator or a court of competent
jurisdiction shall find any provision of this Agreement unenforceable, the
provision shall be deemed modified to the extent necessary to allow
enforceability of the provision as so limited.
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10. 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.
11. Binding on Successors. The parties agree that this Agreement shall be
binding on, and inure to the benefit of, his or its successors, heirs and/or
assigns.
12. 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 Xxxxxxx in
breach hereof. Xxxxxxx 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.
13. 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.
14. Entire Agreement; Modification. This Agreement, including the Stock
Option Plan and associated grant documents herein incorporated by reference and
any confidentiality or proprietary rights agreement signed by Xxxxxxx, 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 Xxxxxxx'x separation of employment with Genetronics 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.
15. Counterparts and Authority to Execute: This Agreement may be executed in
counterparts and facsimile signatures are, for purposes of this Agreement,
deemed to have the full force and effect of original signatures. The individuals
executing this Agreement have the full requisite authority to bind the
respective parties they represent.
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: November 20, 2001 By: /s/ Xxxxx Xxxxxxx Xx.
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Xxxxx Xxxxxxx
Dated: November 20, 2001 By: /s/ Xxxxx Xxxxxxx
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Genetronics
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