Transition and Separation Agreement
Exhibit 10.1
Via
email
December
15, 2017
Xxxxxx
X. Xxxxxxx
Dear
Xxx,
This
letter sets forth the terms and conditions of our agreement
(“Agreement”)
regarding the separation of your employment with ChromaDex
Corporation and its subsidiaries, including Chromadex, Inc.
(collectively, the “Company”), and
the transition services you will provide. This Agreement will
become effective on the Effective Date as defined in Section 10
herein. Capitalized terms that are used in this Agreement, but not
defined herein, shall have the meanings ascribed to them in the
Amended and Restated Employment Agreement between you and the
Company, dated April 10, 2010 (the “Employment
Agreement”).
You and
the Company hereby agree as follows:
1. Separation.
You resign your employment with the Company effective January 19,
2018 (the “Separation
Date”) and the Company accepts your resignation on
such date. You
agree that
(i) you have used vacation days/paid time off for every business
day from November 28, 2017 through and on the date hereof, and (ii)
you will continue to use vacation days/paid time off for every
business day from the date hereof through the Separation Date, such
that you will have no accrued vacation days/paid time off
immediately following the Separation Date.
2. Transition
Period and Post-employment Consulting. You will continue to
serve through the Separation Date in your current capacity of
Senior Vice President, Finance reporting to the Company’s
Chief Financial Officer (“CFO”)
with your primary responsibility being to execute such transitional
projects and services as assigned by the CFO (the “Transition
Period”). During the Transition Period, you shall
continue to be paid your current base salary and you shall remain
enrolled in such of the Company’s benefits plans as you are
currently enrolled. Immediately following the Transition Period,
for a period of three months, you agree to consult with and provide
information to and/or answer inquiries from the Company with
respect to issues relevant to the Company’s financial
operations, accounting, and financial reporting for up to three
days per month, and up to a maximum of 24 hours per month, upon the
Company’s specific request at such times that do not
unreasonably interfere with your employment with a new employer.
The Company agrees to instruct its executive officers and the
members of its Board of Directors not to provide you any material
non-public information regarding the Company or any of its
subsidiaries during the period following the Transition Period
absent your prior written consent.
3. Separation
Benefits. In accordance with section 7(e) of the Employment
Agreement, which is hereby amended to specify the timing for when
you must execute the waiver and release of claims contained herein,
in exchange for your covenants and releases herein, provided that
you sign this Agreement not later than 21 days after it is
delivered to you and this Agreement becomes effective as specified
in Section 10 below, and provided that you sign the
“Closing
Release” attached hereto as Exhibit A on the
Separation Date or within 21 days thereafter and permit it to
become effective as specified therein, the Company will provide you
with the following separation benefits.
(a) Base
Salary Continuation. The
Company will provide you with continuation of your current base
salary for a period of twenty-four (24) months (the
“Base Salary
Payments”). In accordance
with section 9(i) of the Employment Agreement, the Base Salary
Payments, less required payroll deductions and tax
withholdings, will commence on the first payroll pay date
following the six-month anniversary of the Separation Date, and
shall be paid in accordance with the Company’s payroll
schedule then in effect. The first installment of the Base Salary
Payments shall be a “catch up” payment to include the
total amount that you would have received through such date if the
Base Salary Payments had instead commenced on the first payroll pay
date following the Separation Date.
(b) Benefit
Coverage. Provided that you timely elect COBRA medical
and/or dental insurance continuation coverage, the Company will pay
one hundred percent of the premium cost of such coverage for a
period of twenty-four (24) months following the Separation Date, or
until such time as you are no longer eligible for COBRA
continuation coverage, whichever comes first. Notwithstanding the
foregoing, if at any time the Company determines, in its sole
discretion, that its payment of COBRA premiums on your behalf would
result in a violation of applicable law (including, without
limitation, Section 2716 of the Public Health Service Act), then in
lieu of paying COBRA premiums on your behalf, the Company will pay
you a fully taxable cash payment equal to the COBRA premium for
that month, subject to applicable tax withholding (such amount, the
“Special
Severance Payment”), such Special Severance Payment to
be made without regard to your payment of COBRA premiums.
Additionally, for a period of twenty-four months following the
Separation Date, the Company will provide you with or reimburse you
for the cost of premiums for long-term disability and life
insurance coverage consistent in value/benefits with the Company
plans in which you are currently enrolled; provided that (i) such
insurance reimbursements will commence on the first payroll date
following the six-month anniversary of the Separation Date, and
(ii) the first installment of such insurance reimbursement shall be
a “catch up” payment to include the total amount that
you would have received through such date if such insurance
reimbursements had instead commenced on the first payroll pay date
following the Separation Date.
(c) Bonus.
The Company will pay you an amount equal to the Maximum Annual
Bonus for which you would have otherwise been eligible pursuant to
the Employment Agreement had you remained in the employ of the
Company through the point in time that would be necessary for you
to be paid the full bonus with respect to employment during all of
calendar year 2017 (the “2017 Bonus”).
The 2017 Bonus will be paid not later than the Company’s
first regularly scheduled payroll date following the six-month
anniversary of the Separation Date.
(d) Vesting
of Stock. Any unvested portions of Company stock awards
which are then outstanding and held by you shall, on the Effective
Date of the Closing Release, accelerate and be immediately
exercisable.
(e) Vesting
of Stock Options. All unvested options to purchase the
common stock of the Company held by you shall vest as of the
Effective Date of the Closing Release.
(f) Tax
Withholding. All compensation described in this
Section 3 will be subject to the Company’s collection of
all applicable federal, state and local income and employment
withholding taxes. The Company will withhold shares subject to
outstanding restricted stock awards that become vested on the
Effective Date of the Closing Release in order to satisfy its
income and employment tax withholding requirements with respect to
such stock awards. The Company makes no representation regarding
the federal or state tax consequences of the compensation described
in this Section 3. You understand and agree that the Company shall
not be responsible for any tax liabilities, interest or penalties
under state or federal law with respect to the compensation
described in this Section 3. You will indemnify and hold the
Company harmless as to any tax liabilities relating to or arising
from your failure to properly report or pay taxes on the
compensation described in this Section 3. You understand and agree
that you will be responsible for the payment of any and all
applicable state and federal taxes with respect to the compensation
described in this Section 3 and shall indemnify and hold harmless
the Company with respect to the payment of any and all such taxes.
Regardless of the determination by any taxing authority as to the
characterization of the payment, this Agreement shall not be
invalidated as a result thereof since the Company and its attorneys
are not guaranteeing or warranting any ultimate tax treatment of
the sum paid.
(g)
Final Expense Report. You
will have thirty (30) days from the Separation Date to submit a
final expense report for business expenses incurred through the
Separation Date, in such form as required by the Company’s
standard practices and procedures. Reimbursement for any such
approved expenses will be made to you within thirty (30) days after
receipt of the expense report.
4. Other
Compensation and Benefits. Except as expressly provided
herein, you acknowledge and agree that you are not entitled to and
will not receive any additional compensation, wages, reimbursement,
severance, or benefits from the Company.
5. Company
Property. You
represent and confirm that no later than the Separation Date you
will return to the Company all Company documents (and all copies
thereof) and other property of the Company in your possession or
control, including, but not limited to, computer security access,
files, business plans, notes, financial information, financial
information, data, computer-recorded information, tangible
property, including entry cards, keys and any other materials of
any nature pertaining to your work with the Company, and any
documents or data of any description (or any reproduction of any
documents or data) containing or pertaining to any proprietary or
confidential material of the Company; provided that i) you shall be
permitted to retain copies of documents relating to the terms and
conditions of your employment with the Company (for example, copies
of Stock Option Agreements); ii) you shall be permitted to keep and
use the Company-issued laptop and mobile phone during the period
you provide post-employment consulting service to the Company; and
iii) during the period you provide post-employment consulting
service to the Company you shall be permitted by the Company to
maintain and refer to certain compliance file materials until such time
as the Company otherwise directs, provided that you shall not
reproduce, copy, transmit, create back-ups, disclose, share, or use
such material for any purpose other than as instructed by the
Company in connection with consulting services requested by the
Company. You must comply with this Section 5 in order to
receive the benefits specified in section 3 hereof.
After the period during which you provide post-employment
consulting service to the Company, you may retain the
Company-issued laptop, but only after all Company information has
been deleted from such laptop.
6. Confidentiality
Obligations.
You acknowledge the
Employee Confidential Information and Invention Assignment
Agreement between yourself and the Company dated of even date
herewith (the “NDA”)
attached hereto as Exhibit B. You represent that you have complied
with and will continue to comply with the terms of the NDA, and you
acknowledge that such representation is a material inducement to
the Company to enter into this Agreement.
7. Non-Disparagement;
Inquiries. You shall
not make any disparaging comments or statements about the Company,
its services, its products, its work, the members of its Board of
Directors, or executive management. The Company will follow its
standard neutral reference policy in response to any inquiries
regarding you from prospective employers, i.e., only dates of
employment and position(s) held will be disclosed. The
Company’s executive officers and members of the
Company’s Board of Directors, while employed by the Company
or serving on the Company’s Board of Directors, as
applicable, will not make any disparaging comments or statements
about you or your work with the Company. Notwithstanding anything
to the contrary contained herein if either you, the Company’s
executive officers or members of the Company’s Board of
Directors are required to provide testimony in any administrative
or litigation proceeding, the providing of truthful testimony shall
not be deemed to constitute a breach of this Section
7.
8.
Injunctive
Relief. The parties agree that any remedy at law will be
inadequate for any breach by you or the Company of the covenants
under Sections 5, 6, and 7 of this Agreement and that each Party
shall be entitled to an injunction both preliminary and final, and
any other appropriate equitable relief to enforce his or its rights
set forth in these Sections. Such remedies shall be cumulative and
non-exclusive, being in addition to any and all other remedies
either Party may have.
9. Release
of Claims.
(a)
General Release. In exchange
for the consideration provided to you under this Agreement to which
you would not otherwise be entitled, including but not limited to
the Separation Benefits, you hereby generally and completely
release the Company and its current and former directors, officers,
employees, shareholders, partners, agents, attorneys, predecessors,
successors, parent and subsidiary entities, insurers, affiliates,
investors and assigns (collectively, the “Released
Parties”) of and from any and all claims, liabilities and
obligations, both known and known, that arise out of or are in any
way related to events, acts, conduct, or omissions occurring prior
to or on the date you sign this Agreement (collectively, the
“Released
Claims”).
(b)
Scope of Release. The
Released Claims include, but are not limited to: (i) all claims
arising out of or in any way related to your employment with the
Company, or the termination of your employment: (ii) all claims
related to your compensation or benefits from the Company,
including salary, bonuses, commissions, vacation pay, expense
reimbursements, severance pay, fringe benefits, stock, stock
options, or any other ownership interests in the Company: (iii) all
claims for breach of contract, wrongful termination, and breach of
the implied covenant of good faith and fair dealing; (iv) all tort
claims, including claims for fraud, defamation, emotional distress,
wrongful termination, and discharge in violation of public policy;
and (v) all federal, state, and local statutory claims, including
claims for discrimination, harassment, retaliation,
attorneys’ fees, or other claims arising under the federal
Civil Rights Act of 1964 (as amended), the federal Americans with
Disabilities Act of 1990, the Age Discrimination in Employment Act
(“ADEA”), the
federal Family and Medical Leave Act (as amended)
(“FMLA”), the
Illinois Human Rights Act, the Illinois Wage Payment and Collection
Act, the Illinois Equal Pay Act, the Illinois Minimum Wage Law, the
California Family Rights Act (“CFRA”), the
California Labor Code (as amended), the California Xxxxx Act, and
the California Fair Employment and Housing Act (as
amended).
(c)
Excluded Claims.
Notwithstanding the foregoing, the following are not included in
the Released Claims (the “Excluded
Claims”): (i) any rights or claims for indemnification
you may have pursuant to any written indemnification agreement with
the Company to which you are a party, the charter, bylaws, or
operating agreements of the Company, or under applicable law,
including but not limited to the indemnification agreement dated as
of December 13, 2016, by and between you and the Company, which
remains in full force and effect subject to the terms and
conditions set forth therein; (ii) any rights or claims which are
not waivable as a matter of law; (iii) any claims for breach of
this Agreement; and (iv) any rights or claims to coverage under
insurance policies maintained by the Company for directors,
executives, and/or officers. In addition, although nothing herein
prevents you from filing a claim or charge with, cooperating with,
or participating in any proceeding before the Equal Employment
Opportunity Commission, the National Labor Relations Board, the
Department of Labor, or any other local, state, or federal agency,
you hereby waive your right to receive any monetary or other
benefits in connection with any such claim, charge or proceeding;
provided however, that this Agreement does not limit your right to
receive an award for information provided to the Securities and
Exchange Commission. You represent and warrant that, other than the
Excluded Claims, you are not aware of any claims you have or might
have against any of the Released Parties that are not included in
the Released Claims.
(d)
Acknowledgements. You
acknowledge that (i) the consideration given to you in exchange for
the waiver and release in this Agreement is in addition to anything
of value to which you were already entitled; (ii) that you have
been paid for all time worked, have received all the leave, leaves
of absence and leave benefits and protections for which you are
eligible, and have not suffered any on-the-job injury for which you
have not already filed a claim; (iii) you have been given
sufficient time to
consider this Agreement and to consult an attorney or advisor of
your choosing; and (iv) you are knowingly and voluntarily executing
this Agreement waiving and releasing any claims you may have as of
the date you execute it.
10. ADEA
Waiver. You knowingly
and voluntarily waive and release any rights you may have under the
ADEA (defined above). You also acknowledge that the consideration
given for your releases in this Agreement is in addition to
anything of value to which you were already entitled. You are
advised by this writing that: (a) your waiver and release do not
apply to any claims that may arise after you sign this Agreement;
(b) you should consult with an attorney prior to executing this
Agreement; (c) you have twenty-one (21) days within which to
consider this Agreement (although you may choose to voluntarily
execute this Agreement earlier); (d) you have seven (7) days
following the execution of this Agreement to revoke this Agreement;
and (e) this Agreement will not be effective until the eighth day
after you sign this Agreement, provided that you have not earlier
revoked this Agreement (the “Effective
Date”). You will not be entitled to receive any of the
benefits specified by this Agreement unless and until it becomes
effective.
11. Section
1542 Waiver. In
giving the applicable releases set forth herein, which include
claims which may be unknown at present, you acknowledge that you
have read and understand Section 1542 of the Civil Code of the
State of California which reads as follows:
A
general release does not extend to claims which the creditor does
not know or suspect to exist in his or her favor at the time of
executing the release, which if known by him or her must have
materially affected his or her settlement with the
debtor.
You
expressly waive and relinquish all rights and benefits under this
section and any law or legal principle of similar effect in any
jurisdiction with respect to claims released hereby.
12. No
Admissions. The parties hereto hereby acknowledge that this
is a compromise settlement of various matters, and that the
promised payments in consideration of this Agreement shall not be
construed to be an admission of any liability or obligation by
either party to the other party or to any other person
whomsoever.
13. Entire
Agreement. This
Agreement constitutes the complete, final and exclusive embodiment
of the entire Agreement between you and the Company with regard to
the subject matter hereof. It is entered into without reliance on
any promise or representation, written or oral, other than those
expressly contained herein. It may not be modified except in
writing signed by you and the Chief Executive Officer of the
Company. Each party has carefully read this Agreement, has been
afforded the opportunity to be advised of its meaning and
consequences by his or its respective attorneys, and signed the
same of his or its free will.
14. Successors
and Assigns. This Agreement shall bind the heirs, personal
representatives, successors, assigns, executors, and administrators
of each party, and inure to the benefit of each party, its agents,
directors, officers, employees, servants, heirs, successors and
assigns.
15. Applicable
Law. This Agreement shall be deemed to have been entered
into and shall be construed and enforced in accordance with the
laws of the State of California as applied to contracts made and to
be performed entirely within California.
16. Severability.
If a court or arbitrator of competent jurisdiction determines that
any term or provision of this Agreement is invalid or
unenforceable, in whole or in part, the remaining terms and
provisions hereof shall be unimpaired. Such court or arbitrator
will have the authority to modify or replace the invalid or
unenforceable term or provision with a valid and enforceable term
or provision that most accurately represents the parties’
intention with respect to the invalid or unenforceable term or
provision.
17. Indemnification.
You will indemnify and save harmless the Company from any loss
incurred directly or indirectly by reason of the falsity or
inaccuracy of any representation made by you herein. The Company
will indemnify and save harmless you from any loss incurred
directly or indirectly by reason of the falsity or inaccuracy of
any representation made by it herein.
18. Authorization.
You and the Company warrant and represent that there are no liens
or claims of lien or assignments in law or equity or otherwise of
or against any of the claims or causes of action released herein
and, further, that each of them are fully entitled and duly
authorized to give their complete and final general release and
discharge.
19. Counterparts.
This Agreement may be executed in two counterparts, each of which
shall be deemed an original, all of which together shall constitute
one and the same instrument.
20. Section
Headings. The section and paragraph headings contained in
this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this
Agreement.
21. Photocopies.
A photocopy of this executed Agreement shall be as valid, binding,
and effective as the original Agreement.
22. Deadline.
This offer shall remain open to you until 5:00 p.m. Pacific
Standard Time on the twenty-first day following the delivery of
this Agreement to you (the “Expiration
Date”). If you have not signed and returned this
Agreement to me by the Expiration Date, this offer will
automatically lapse and be null and void.
Please
confirm your assent to the foregoing terms and conditions of our
Agreement by signing below and returning the signed Agreement to
me.
Rest of
Page Intentionally Left Blank
Sincerely,
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Chromadex Corporation |
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By:
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/s/ Xxxxx X. Xxxxxx, Xx.
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Xxxxx X. Xxxxxx,
Xx.
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Chief
Executive Officer
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Having read and reviewed the foregoing, I hereby agree to and
accept the terms and conditions of this Agreement as stated
above.
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/s/
Xxxxxx X. Xxxxxxx
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12/15/2017
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Xxxxxx
X. Xxxxxxx
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Date
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Exhibit A
CLOSING RELEASE AND WAIVER OF CLAIMS
DO NOT SIGN PRIOR
TO THE SEPARATION DATE
TO BE SIGNED AND RETURNED ON THE SEPARATION DATE OR WITHIN
21 DAYS THEREAFTER
CLOSING RELEASE AND WAIVER OF CLAIMS
TO BE SIGNED ON OR WITHIN 21
DAYS FOLLOWING THE SEPARATION DATE
In
consideration of the payments and other benefits set forth in the
Transition & Separation Agreement (the
“Agreement”), to which this form is attached, I, Xxxxxx
X. Xxxxxxx, hereby furnish ChromaDex Corporation and its
subsidiaries, including Chromadex, Inc. (collectively, the
“Company”), with the following release and waiver of
claims (“Closing Release”).
General Release. In exchange for the consideration provided
to me under the Agreement to which I would not otherwise be
entitled, including but not limited to the Separation Benefits, I
hereby generally and completely release the Company and its current
and former directors, officers, employees, shareholders, partners,
agents, attorneys, predecessors, successors, parent and subsidiary
entities, insurers, affiliates, investors and assigns
(collectively, the “Released Parties”) of and from any
and all claims, liabilities and obligations, both known and known,
that arise out of or are in any way related to events, acts,
conduct, or omissions occurring prior to or on the date I sign this
Agreement (collectively, the “Released
Claims”).
Scope of Release. The Released Claims include, but are not
limited to: (i) all claims arising out of or in any way related to
my employment with the Company, or the termination of my
employment: (ii) all claims related to my compensation or benefits
from the Company, including salary, bonuses, commissions, vacation
pay, expense reimbursements, severance pay, fringe benefits, stock,
stock options, or any other ownership interests in the Company:
(iii) all claims for breach of contract, wrongful termination, and
breach of the implied covenant of good faith and fair dealing; (iv)
all tort claims, including claims for fraud, defamation, emotional
distress, wrongful termination, and discharge in violation of
public policy; and (v) all federal, state, and local statutory
claims, including claims for discrimination, harassment,
retaliation, attorneys’ fees, or other claims arising under
the federal Civil Rights Act of 1964 (as amended), the federal
Americans with Disabilities Act of 1990, the Age Discrimination in
Employment Act (“ADEA”), the federal Family and Medical
Leave Act (as amended) (“FMLA”), the Illinois Human
Rights Act, the Illinois Wage Payment and Collection Act, the
Illinois Equal Pay Act, the Illinois Minimum Wage Law, the
California Family Rights Act (“CFRA”), the California
Labor Code (as amended), the California Xxxxx Act, and the
California Fair Employment and Housing Act (as
amended).
Excluded Claims. Notwithstanding the foregoing, the
following are not included in the Released Claims (the
“Excluded
Claims”): (i) any rights or claims for indemnification
I may have pursuant to any written indemnification agreement with
the Company to which I am a party, the charter, bylaws, or
operating agreements of the Company, or under applicable law,
including but not limited to the indemnification agreement by and
between me and the Company, dated December 13, 2016, which remains
in full force and effect subject to the terms and conditions set
forth therein; (ii) any rights or claims which are not waivable as
a matter of law; (iii) any claims for breach of this Agreement; and
(iv) any rights or claims to coverage under insurance policies
maintained by the Company for directors, executives, and/or
officers. In addition, although nothing herein prevents me from
filing a claim or charge with, cooperating with, or participating
in any proceeding before the Equal Employment Opportunity
Commission, the National Labor Relations Board, the Department of
Labor, or any other local, state, or federal agency, I hereby waive
my right to receive any monetary or other benefits in connection
with any such claim, charge or proceeding; provided however, that
this Agreement does not limit my right to receive an award for
information provided to the Securities and Exchange Commission. I
represent and warrant that, other than the Excluded Claims, I am
not aware of any claims I have or might have against any of the
Released Parties that are not included in the Released
Claims.
Acknowledgements. I acknowledge that (i) the consideration
given to me in exchange for the waiver and release in this Closing
Release is in addition to anything of value to which I was already
entitled; (ii) that I have been paid for all time worked, have
received all the leave, leaves of absence and leave benefits and
protections for which I am eligible, and have not suffered any
on-the-job injury for which I have not already filed a claim; (iii)
I have been given sufficient time to consider this Closing Release
and to consult an attorney or advisor of my choosing; and (iv) I am
knowingly and voluntarily executing this Closing Release waiving
and releasing any claims I may have as of the date I execute
it.
ADEA Waiver. I
knowingly and voluntarily waive and release any rights I may have
under the ADEA (defined above). I acknowledge that the
consideration given for my releases in this Closing Release is in
addition to anything of value to which I was already entitled. I am
advised by this writing that: (a) my waiver and release do not
apply to any claims that may arise after I sign this Closing
Release; (b) I should consult with an attorney prior to executing
this Closing Release (and I have done so); (c) I have twenty-one
(21) days within which to consider this Closing Release (although I
may choose to voluntarily execute this Closing Release earlier);
(d) I have seven (7) days following the execution of this Closing
Release to revoke this Closing Release; and (e) this Closing
Release will not be effective until the eighth day after I sign
this Closing Release, provided I have not earlier revoked this
Closing Release (the “Effective Date”). I will not be
entitled to receive any of the benefits specified by this Closing
Release unless and until it becomes effective.
Section 1542 Waiver.
In giving the applicable releases set forth herein, which include
claims which may be unknown at present, I acknowledge that I have
read and understand Section 1542 of the Civil Code of the State of
California which reads as follows:
A
general release does not extend to claims which the creditor does
not know or suspect to exist in his or her favor at the time of
executing the release, which if known by him or her must have
materially affected his or her settlement with the
debtor.
I
expressly waive and relinquish all rights and benefits under this
section and any law or legal principle of similar effect in any
jurisdiction with respect to claims released hereby.
I
acknowledge my continuing obligations under Section 6 of the
Agreement. I understand that among other things, I must not use or
disclose any confidential or proprietary information of the Company
and I must immediately return all Company property and documents
(including all embodiments of proprietary information) and all
copies thereof in my possession or control.
This
Release and Waiver constitutes the complete, final and exclusive
embodiment of the entire agreement between the Company and me with
regard to the subject matter hereof. I am not relying on any
promise or representation by the Company that is not expressly
stated herein. This Release and Waiver may only be modified by a
writing signed by both me and a duly authorized officer of the
Company.
Date:
____________
By:
___________________________________
Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
