SEPARATION AGREEMENT
AND FULL AND FINAL RELEASE
Xxxxxxxxxx Laboratories, Inc. ("Xxxxxxxxxx") and Xxxxxxxxxxx X.
Record ("Record") make this agreement (the "Agreement"), and hereby
agree as follows:
1. Resignation from All Offices and Termination of Employment.
Record hereby voluntarily resigns (i) from his offices of Vice
President, Business Development, and Secretary, and any and all other
offices held with Xxxxxxxxxx and any subsidiaries or affiliates of
Xxxxxxxxxx, effective April 30, 1998; and (ii) from his employment
with Xxxxxxxxxx, effective February 14, 1999 (the "Separation Date").
2. Interim Employment Status. Effective May 1, 1998, and
continuing through February 14, 1999 (the "Interim Period"), unless
earlier terminated by reason of Record's death or for Cause,
Xxxxxxxxxx will employ Record in the capacity of Special Advisor,
with such duties as may be assigned to Record from time to time by
Xxxxxxxxxx (which may include those duties Record has customarily
performed in his prior capacities as Vice President, Business
Development, Secretary, and General Counsel). For purposes of this
Paragraph, the term "Cause" shall mean any of the following: (a)
conduct by Record that (i) constitutes willful misconduct or gross
negligence in the performance of his assigned duties as an employee,
(ii) is in derogation of his duties or obligations under this
Agreement, or (iii) constitutes fraud, dishonesty, or a criminal act,
whether or not with respect to Xxxxxxxxxx; or (b) Record's willful
and continued failure to substantially perform his assigned duties as
an employee of Xxxxxxxxxx. Record will at all times during the
Interim Period remain subject to Xxxxxxxxxx'x established personnel
policies, practices, and procedures as applicable to his new position
and assigned duties.
3. Authority. During the Interim Period, Record is not
authorized, and shall not hold himself out as being authorized, to
make any representations, enter into any contracts, commitments, or
obligations, or perform any other acts of any kind whatsoever on
behalf of Xxxxxxxxxx, unless specifically authorized by the President
and CEO of Xxxxxxxxxx.
4. Salary and Benefits During the Interim Period. Record's
salary during the Interim Period shall be the total sum of
$62,500.00, payable as follows: (i) May-August, 1998: $12,500.00 per
month; (ii) September, 1998: $7,100.00; October, 1998-January, 1999:
$1,200.00 per month; and February 1-14, 1999: $600.00. The foregoing
sums are gross amounts, and are subject to lawful deductions.
Payment for all of Record's earned and accrued but unused vacation
shall be made by Xxxxxxxxxx at the conclusion of the first pay period
after April 30, 1998. Record shall remain eligible during the
Interim Period to participate in any group insurance, stock purchase
plans, and other benefits offered by Xxxxxxxxxx, subject to the terms
of each such plan and provided he timely pays any cost that he is
required as an employee to pay in connection therewith. Unless
earlier terminated in accordance with the terms of any such plan,
Record's participation in all such plans and other benefits shall
terminate on the Separation Date, except to the extent, if any, that
Record is entitled, and elects, to extend health insurance coverage
thereafter at his own expense pursuant to the Consolidated Omnibus
Budget Reconciliation Act of 1985. Provided, however, that (a) no
additional days of vacation, sick leave, or other earned benefit that
is based upon actual work performed shall accrue to Record after
April 30, 1998, and (b) no further compensation shall be paid and no
further benefits eligibility (except as otherwise provided under the
terms of the applicable benefit plan or other controlling instrument)
shall be provided hereunder if Record's employment with Xxxxxxxxxx is
terminated prior to the Separation Date (i) by his own action for
whatever reason, (ii) by Xxxxxxxxxx for Cause, or (iii) by reason of
Record's death.
5. Return of Property. Record acknowledges his obligation to
return to Xxxxxxxxxx any and all items of its property, including
without limitation keys, computers, software, calculators, equipment,
credit cards, forms, files, manuals, correspondence, business
records, personnel data, lists of employees, salary and benefits
information, customer lists and files, lists of suppliers and
vendors, price lists, contracts, contract information, marketing
plans, brochures, catalogs, training materials, product samples,
computer tapes and diskettes or other portable media, computer-
readable files and data stored on any hard drive or other installed
device, and data processing reports, and any and all other documents
or property which he has had possession of or control over during the
course of his employment with Xxxxxxxxxx. Such of Xxxxxxxxxx'x
property as is not needed for the conduct of Record's duties during
the Interim Period will be returned by not later than May 10, 1998;
and all other items will be returned by not later than the Separation
Date or, if earlier, the last date of Record's employment.
6. Use of Confidential Information. Record acknowledges that
(i) he is a party to an existing agreement entitled Employee's
Confidentiality and Invention Agreement, a copy of which is attached
hereto as Exhibit A and is hereby reconfirmed and ratified, his
obligations under which continue in full force and effect and
undiminished in any way by this Agreement; and (ii) all of the
documents and information to which he presently has or will during
the Interim Period have had access during his employment, including
but not limited to all information pertaining to any specific
business transactions in which Xxxxxxxxxx or any of the other
Released Parties (as defined in Paragraph 7 below) were, are, or may
be involved, all information concerning salary and benefits paid to
current or former employees of Xxxxxxxxxx or any of the other
Released Parties, all personnel information relating in any way to
current or former employees of Xxxxxxxxxx or those of any of the
other Released Parties, all information pertaining in any way to
customers and suppliers of Xxxxxxxxxx or those of any of the other
Released Parties, pricing information, all financial and budgetary
information, information regarding Xxxxxxxxxx'x sales methods and
techniques, information regarding Xxxxxxxxxx'x training methods and
techniques, all other information specified in Paragraph 5 above, and
in general, the business and operations of Xxxxxxxxxx or any of the
other Released Parties are considered confidential and are not to be
disseminated or disclosed by Record to any other parties, except as
may be required by law or judicial process. In the event it appears
that Record will be compelled by law or judicial process to disclose
such confidential information, to avoid potential liability Record
should notify Xxxxxxxxxx'x President and CEO in writing immediately
upon his receipt of a subpoena or other legal process.
7. General Release. In consideration of the remuneration
provided and paid in full pursuant to Paragraph 4 hereof, Record and
his family members, heirs, successors, and assigns (hereinafter
referred to collectively as the "Releasing Parties") hereby release,
acquit and forever discharge Xxxxxxxxxx and its shareholders,
officers, directors, fiduciaries, agents, servants, employees,
representatives, attorneys, insurers, successors, and assigns
(hereinafter referred to collectively as the "Released Parties") from
any and all claims, demands, and causes of action of every kind and
character, whether vicarious, derivative, or direct, that any of the
Releasing Parties now has or may hereafter have or assert against any
or all of the Released Parties growing out of, resulting from, or
connected in any way with Record's employment or the termination of
his employment with Xxxxxxxxxx, including but not limited to any
and all claims for damages (actual, exemplary, liquidated, or
unliquidated), back pay, future pay, deferred compensation, bonuses,
commissions, severance payments, vacation and leave benefits,
unreimbursed business expenses, overtime compensation, reinstatement
or priority placement, past and future medical or other employee
benefits for Record or his dependents, employee retirement benefits,
contributions to company sponsored 401(k) plans (except as presently
vested in any savings plan sponsored by Xxxxxxxxxx in which Record is
a participant), medical and counseling costs, injunctive relief,
declaratory relief, attorney's fees, costs of court, disbursements,
interest, or any other form whatsoever of legal or equitable relief
to which any of the Releasing Parties claims or might claim
entitlement as a result of any alleged act or omission of any of the
Releasing Parties, including but not limited to any alleged unlawful
age discrimination or any other form of unlawful employment
discrimination, retaliation, wrongful termination, breach of contract
(express or implied), tortious interference with contract, promissory
estoppel, detrimental reliance, negligent or intentional infliction
of emotional distress, negligent hiring and supervision, assault,
battery, defamation of character, any alleged act of harassment or
intimidation, negligent or intentional misrepresentation or fraud,
invasion of privacy, or any other intentional or negligent tort, or
any alleged violation of the Age Discrimination in Employment Act of
1967, Title VII of the Civil Rights Act of 1964, the Texas Commission
on Human Rights Act, the Americans With Disabilities Act, the
Employee Retirement Income Security Act of 1974, the public policy
of the United States, the State of Texas, or any other state, or any
other federal or state statutory or common law, or any other alleged
adverse employment action by any of the Released Parties, and all
other loss, expense, or detriment of every kind and character,
whether past or future, that any of the Releasing Parties may have
sustained or may hereafter sustain by reason of any act or omission
of any of the Released Parties growing out of, resulting from, or
connected in any way with Record's employment or the termination of
his employment with Xxxxxxxxxx. This General Release applies and is
fully enforceable with respect to all rights or claims existing on or
before the date this Agreement is originally executed; and with
respect to its later renewal and ratification, to all rights or
claims existing on or before the date of execution of the renewal and
ratification form. In neither event does this General Release act to
waive any rights or claims that arise after the date of execution.
8. Renewal and Ratification of General Release. Record agrees
that on the Separation Date (or, should Record elect to terminate his
employment during the Interim Period before such date, on the last
day of his employment), he will re-execute this Agreement in renewal
and ratification of his General Release as set forth in Paragraph 7
above, by signing in the appropriate space provided below. Such
renewal and ratification will not become effective and enforceable
until the expiration of seven days after its execution. At any time
before the expiration of such period, Record may revoke his renewal
and ratification; but if he does, he will not receive any unpaid
amounts or unvested benefits specified in Paragraph 4 above and may
be required to repay any of such amounts already received, and
Xxxxxxxxxx may seek any other lawful remedies available to it for
breach of this Agreement, including costs and attorney's fees.
9. Confidentiality, Nonprosecution, Nondisparagement, and
Cooperation.
(a) T h e terms of this Agreement shall be and remain
confidential, and shall not be disclosed by Record to any
persons other than the Releasing Parties and Record's attorney
and accountant or tax return preparer if such persons have
agreed to keep such information confidential. If any
confidential information is released by Record, such release
shall be grounds for immediate termination of all benefits
listed herein. Notwithstanding the foregoing, either Record or
Xxxxxxxxxx may make any disclosures concerning the terms of this
Agreement that are required by law.
(b) Except as requested by Xxxxxxxxxx or as compelled by law or
judicial process, Record will not assist, cooperate with, or
supply information of any kind to any individual or private-
party litigant or their agents or attorneys (i) in any
proceeding, investigation, or inquiry raising issues under the
Age Discrimination in Employment Act of 1967, Title VII of the
Civil Rights Act of 1964, the Americans with Disabilities Act of
1990, the Family and Medical Leave Act of 1993, the Employee
Retirement Income Security Act of 1974, the Fair Labor Standards
Act, the Fair Credit Reporting Act, the Texas Commission on
Human Rights Act, the Texas Wage Payment Statute, or any other
federal, state, or local law involving the formation,
continuation, or termination of Record's employment
relationship, or the employment of other persons, by Xxxxxxxxxx
or any of the other Released Parties; or (ii) in any other
litigation against Xxxxxxxxxx or any of the other Released
Parties.
(c) Except as permitted by law, Record will not initiate any
investigation or inquiry, or any other action of any kind,
including an administrative charge with any governmental agency,
with respect to Xxxxxxxxxx'x facilities, employment practices,
or business operations, relating to the termination of his
employment as provided for in this Agreement.
(d) Neither Record nor Xxxxxxxxxx (including the Released
Parties) will make to any other parties any statement, oral or
written, which directly or indirectly impugns the quality,
reputation or integrity of each other's business or employment
practices, or any other disparaging or derogatory remarks about
each other, their officers, directors, stockholders, managerial
personnel, or other employees.
(e) It shall not be a breach of the obligations set forth in
this Paragraph 9 for Record, his spouse, or his attorneys to
state to any person that any differences, if he believes any to
exist, between Record and Xxxxxxxxxx have been settled or
satisfactorily resolved.
(f) During the Interim Period and after the termination of his
employment with Xxxxxxxxxx, Record agrees to cooperate fully and
completely with Xxxxxxxxxx, or any of the other Released Parties
in any matter related to Xxxxxxxxxx'x business or activities, as
follows: (i) to be available at mutually agreeable times,
personally or by telephone, as necessary, at such reasonable
times and without unreasonable interference with his future
employment or personal activities, to provide such information
as may be from time to time requested by Xxxxxxxxxx in its sole
discretion in connection with various matters in which Record
was involved during his employment with Xxxxxxxxxx; and (ii) in
all pending and future litigation involving Xxxxxxxxxx or any of
the other Released Parties, which obligation includes promptly
meeting with counsel for Xxxxxxxxxx or the other Released
parties at reasonable times upon their request, and providing
testimony in court or upon deposition that is truthful,
accurate, and complete, according to information known to him.
If Record appears as a witness in any pending or future
litigation at the request of Xxxxxxxxxx or any of the other
Released Parties, Xxxxxxxxxx agrees to reimburse Record, upon
submission of substantiating documentation, for necessary and
reasonable expenses, including actual lost earnings, incurred by
him as a result of his testifying.
10. Agreement Regarding Solicitation of Employees, Customers,
and Suppliers. For a period of one year following the Separation
Date, and thereafter to the extent provided by law, Record will not
directly or indirectly, for his own account or for the benefit of any
other person or party:
(a) Solicit, induce, entice, or attempt to entice any employee,
contractor, or subcontractor of Xxxxxxxxxx to terminate his or
her employment or contract with Xxxxxxxxxx; or
(b) Solicit, induce, entice, or attempt to entice any customer
or supplier of Xxxxxxxxxx, including any firms that have been
customers or suppliers of Xxxxxxxxxx within one year preceding
the Separation Date, to terminate its business relationship with
Xxxxxxxxxx.
Should Record breach this obligation, Xxxxxxxxxx will be
entitled to enforce the provisions of this Paragraph by seeking
injunctive relief in addition to recovering any monetary damages
Xxxxxxxxxx may sustain as a result of such breach, and Record may be
required to repay any amounts provided to him under the provisions of
Paragraph 4 of this Agreement.
11. Effect and Use of Agreement. This Agreement does not in
any manner constitute an admission of liability or wrongdoing on the
part of Xxxxxxxxxx or any of the other Released Parties, but
Xxxxxxxxxx expressly denies any such liability or wrongdoing.
Except to the extent necessary to enforce this Agreement, neither
this Agreement nor any part of it may be construed, used, or admitted
into evidence in any judicial, administrative, or arbitral proceeding
as an admission of any kind by Xxxxxxxxxx or any of the other
Released Parties.
12. Authority to Execute. Record represents and warrants that
he has the authority to execute this Agreement on behalf of all the
Releasing Parties. Record further agrees to indemnify fully and hold
harmless Xxxxxxxxxx and any of the other Released Parties from any
and all claims brought by the Releasing Parties or derivative of his
own with respect to the subject matter of this Agreement, including
the amount of any such claims Xxxxxxxxxx or any of the other Released
Parties are compelled to pay, and the costs and attorney's fees
incurred in defending against all such claims.
13. Governing Law and Interpretation. This Agreement and the
rights and duties of the parties under it shall be governed by and
construed in accordance with the laws of the State of Texas. If any
provision of this Agreement is held to be unenforceable, such
provision shall be considered separate, distinct, and severable from
the other remaining provisions of this Agreement, and shall not
affect the validity or enforceability of such other remaining
provisions, and that, in all other respects, this Agreement shall
remain in full force and effect. If any provision of this Agreement
is held to be unenforceable as written but may be made to be
enforceable by limitation thereof, then such provision shall be
enforceable to the maximum extent permitted by applicable law. The
language of all parts of this Agreement shall in all cases be
construed as a whole, according to its fair meaning, and not strictly
for or against any of the parties.
14. Effect of Breach. Record acknowledges and agrees that
should he or any of the other Releasing Parties breach any of their
obligations set forth in this Agreement, (i) Xxxxxxxxxx will have no
further obligation to comply with its undertakings in Paragraphs 2 or
4 hereof, but that all of the other provisions of this Agreement
shall remain in full force and effect; (ii) Record may be required to
repay any payments made to him and reimburse Xxxxxxxxxx for any
payments made on his behalf or for his benefit pursuant to Paragraphs
2 and 4 hereof.
15. Time for Consideration, Consultation with Attorney, and
Knowing and Voluntary Action. Record acknowledges that (i) he has
had the opportunity to consider the terms of the General Release
contained in Paragraph 7 above, including its waiver of any claims
under the Age Discrimination in Employment Act, for more than 21
days; (ii) he has been advised by Xxxxxxxxxx of his right to consult
an attorney of his choosing in connection with his consideration of
the terms of this Agreement, including such General Release and
waiver; and (iii) his execution of this Agreement is knowing and
voluntary.
16. Effective Date. This Agreement will become effective and
enforceable upon the expiration of seven days after Record's
execution of it ("Effective Date"). At any time before the Effective
Date of this Agreement, Record may revoke his acceptance.
17. Entire Agreement. This Agreement contains and constitutes
the entire understanding and agreement between Record and Xxxxxxxxxx,
and may be modified only by a writing of contemporaneous or
subsequent date executed by both Record and an authorized official of
Xxxxxxxxxx.
SIGNED on the dates shown below.
XXXXXXXXXX LABORATORIES, INC.
Dated: _________________, 1998 By:
Xxxxxxx X. Xxxxxx
President & CEO
Dated: _________________, 1998
XXXXXXXXXXX X. RECORD
RENEWAL AND RATIFICATION OF GENERAL RELEASE
AND RECEIPT FOR CURRENT WAGES
THE FOLLOWING IS TO BE COMPLETED ONLY ON FEBRUARY 14, 1999
(or the last day of employment, if earlier):
1. Renewal and Ratification of General Release. In
consideration of the full payment of the remuneration specified in
Paragraph 4 above, I hereby renew and ratify my General Release as
set forth in Paragraph 7 of this Agreement.
2. Receipt of Prior or Contemporaneous Payments. I
acknowledge that I have received wages and other benefits
attributable to all time actually worked for Xxxxxxxxxx, through my
last day of employment on February 14, 1999 [or enter earlier date
here, if applicable: ___________________________].
_______________________________
XXXXXXXXXXX X. RECORD
Date Signed:___________________
(only the date of February 14, 1999, or earlier date of
termination of employment, if applicable, may be entered)
