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Exhibit 10.3
SEPARATION AGREEMENT
THIS AGREEMENT is entered into as of the 15th day of January, 2001 by
and between Nutraceutix, Inc., a Delaware corporation, Bio Techniques
Laboratories, Inc., a Washington corporation (the "Company") and Xxxxxxxx St.
Xxxx ("St. Xxxx") in order to provide the terms and conditions of St. John's
separation of employment, and to fully and completely resolve any and all issues
that St. Xxxx might have in connection with her relationship with the Company
and any related or affiliated Companies and the termination of such
relationships.
NOW, THEREFORE, in consideration of the mutual promises and conditions
contained herein, the parties agree as follows:
1. Separation. St. John's employment with the Company shall cease effective
January 15th, 2001 (the "Separation Date"). All of St. John's wages and
employee benefits (except as otherwise provided herein) will also cease
as of the Separation Date. St. Xxxx shall be relieved of all duties as
of January 15, 2001.
2. Resignation. St. Xxxx hereby resigns from all employee, officer and
director positions with the Company and its subsidiaries. Such
resignation shall become effective as of January 15, 2001 and can be
revoked only pursuant to the provisions of Section 15.
3. Severance. Provided St. Xxxx is at all times in compliance with all
terms to this Agreement, the Company shall make monthly payments to her
in the gross amount of seven thousand, eight-three dollars and 33/100
($7,083.33), which is 1/12 of her current yearly base salary of
eight-five thousand dollars ($85,000.00), for the period of January 15,
2001 to January 15, 2002. These payments shall be subject to the general
tax and other withholdings and deductions applicable to wages. Any
payments made by the Company from January 15, 2001 to the date of
execution of this Agreement shall be credited to the payments due under
this Section 3.
4. Medical Insurance. St. Xxxx understands that her wages and benefits
shall cease as of January 15, 2001; provided, however, that any medical
and other insurance benefits for which the premium was paid prior to
January 15, 2001, shall continue until January 31, 2001. For the period
of February 2001 through February 2002, the Company agrees to reimburse
St. Xxxx for her health and dental premium costs incurred as a result of
her electing COBRA continuation coverage. After February 2002, St. Xxxx
shall be solely responsible for the payment of such medical and dental
insurance costs without imposition by the Company of any additional
administrative costs.
5. Stock Options. St. Xxxx has been granted stock options (the "Options")
exercisable for up to 94,000 shares of Nutraceutix, Inc.'s common stock.
The terms of the Options are hereby amended as follows:
5.1. The Options shall become vested and immediately exercisable as
to all shares.
5.2. To the extent the Options were Incentive Stock Options, they are
hereby converted to Nonqualified Stock Options.
5.3. The Options shall remain exercisable until the close of business
on January 31, 2002.
5.4. On January 31, 2002, any portion of the Options remaining
unexercised shall be cancelled and shall revert back to the
Plan.
5.5. St. Xxxx hereby waives any claims to any stock options beyond
the Options. This provision shall not become effective until (a)
approved by Nutraceutix, Inc.'s Board of Directors and (b) the
revocation period set forth in Section 15 has expired.
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6. Waiver of Claims. In return for the benefits conferred by this Agreement
and other related events, St. Xxxx, on behalf of herself and her marital
community, heirs, executors, administrators and assigns, hereby releases
in full, and forever discharges, acquits, and holds harmless, the
Company, including any of the Company's past or present parent,
subsidiary or otherwise affiliated (through common ownership to any
extent or otherwise) corporations, partnerships, or other business
enterprises, and all of its or their past or present affiliates, related
entities, partners, subsidiaries, insurers, predecessors, successors,
assigns, directors, officers, shareholders, attorneys, accountants,
representatives, agents and employees (these entities/persons together
with the Company are collectively referred to as "Associated Persons"),
from any and all claims, disputes, suits, demands, causes of action,
liabilities, damages, expenses and obligations of every nature,
character and kind (collectively "Claims") that St. Xxxx xxx possess,
whether known or unknown, which may now exist or hereafter may be
discovered, specifically including without limitation any and all Claims
arising from or relating to St. John's employment or relationship with
the Company, or the Separation of such employment; provided that this
release does not include any Claims arising under the express terms of
this Agreement and since it is the Equal Employment Opportunity
Commission's position that a right to file a claim cannot be waived,
this release does not include the right to file a claim with the Equal
Employment Opportunity Commission (although St. Xxxx expressly waives
her right to obtain any personal relief or damages related to any EEOC
claim or charge). This release includes, but is not limited to, any
Claims that St. Xxxx might have for additional compensation, including
without limitation any Claim for any past, current or future wages,
bonuses, incentive payments, severance or benefits and applies to Claims
for damages or other personal remedies that she might have under
federal, state and/or local law dealing with employment, contract, wage
and hour, civil rights or any other matters, including, by way of
example and not limitation, applicable civil rights laws, Title VII of
the Civil Rights Act of 1965, the Post-War Civil Rights Act of 1964, the
Post-War Civil Rights Acts (42 USC Sections 1981-1988), the Age
Discrimination in Employment Act, the Americans with Disabilities Act,
the Family and Medical Leave Act, the Rehabilitation Act of 1973, the
Equal Pay Act of 1963, Executive Order 11246, Washington's Law Against
Discrimination, Chapter 49.60 RCW, and Washington's Minimum Wage Act,
Chapter 49.46 RCW, and any regulations under such laws. This release
further applies to any Claims or right to personal damages or other
personal legal or equitable remedies that St. Xxxx xxx have as a result
of filing any complaint, charge or other action before any
administrative agency. This release shall not affect any reimbursement
rights St. Xxxx xxx have under any medical insurance or any accrued
rights under any retirement savings plan and shall not affect or include
any rights she now has or may have in the future as a shareholder or
stockholder of the Company or any related or affiliated company or
entity, nor does it, nor will it, affect or include any rights she may
have to indemnification by the Company for claims against her by third
party, and such indemnification rights (if any) shall remain in full
force and effect beyond the term of this Agreement. ST. XXXX
ACKNOWLEDGES AND AGREES THAT THROUGH THIS RELEASE SHE IS GIVING UP ALL
RIGHTS AND CLAIMS OF EVERY KIND AND NATURE WHATSOEVER, KNOWN OR UNKNOWN,
CONTINGENT OR LIQUIDATED, THAT SHE MAY HAVE AGAINST THE COMPANY,
INCLUDING ASSOCIATED PERSONS, EXCEPT FOR THE RIGHTS SPECIFICALLY
EXCLUDED ABOVE.
Similarly, in return for the benefits conferred by this Agreement and
other related events, the Company hereby release in full, and forever
discharge, acquit, and hold harmless, St. Xxxx, from any and all claims,
disputes, suits, demands, causes of action, liabilities, damages,
expenses and obligations of every nature, character and kind
(collectively "Claims") that the Company may possess, whether known or
unknown, which may now exist or hereafter may be discovered,
specifically including without limitation any and all Claims arising
from or relating to St. John's employment with the Company, or the
Separation of such employment and/or her role or status as an officer,
director and agent of the Company.
7. Dismissal of Pending Claims. St. Xxxx represents that she has filed no
Claim or other action against The Company, including Associated Persons.
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8. Non-Admission of Liability. The Company is offering these benefits to
St. Xxxx due to its desire to have an amicable separation of employment
with her and in recognition of her past contributions to the Company.
This Agreement shall not be construed as an admission by the Company of
any liability to St. Xxxx, breach of any agreement between the parties,
or violation by the Company of any statute or regulation. St. Xxxx is
accepting these benefits due to her desire to have an amicable
separation of employment from the Company. This Agreement shall not be
construed as an admission by St. Xxxx of any liability to the Company,
breach of any agreement between the parties, or violation by St. Xxxx of
any statute or regulation.
9. Non-Disparagement. The parties are entering into this Agreement, in
part, to ensure an amicable relationship between them. St. Xxxx agrees
not to make any negative or disparaging comments to any person or
entity, publicly or privately, concerning the Company, its products or
services, or its past, present or future officers, directors or
employees. Notwithstanding this provision, she shall be free to make
whatever comments she desires in private to her spouse. Xxxxx Xxxxxx and
Xxxxx Xxxxx agree not to make any negative or disparaging comments to
any person or entity, publicly or privately, concerning St. Xxxx or her
performance as an employee of the Company. The Company agrees to execute
the Letter of Reference attached hereto as Exhibit A at the same time as
the execution of this Agreement. This Agreement shall be shown to the
Board of Directors so that they will be aware of its contents and can
specifically approve it.
10. Continuing Assistance. St. Xxxx agrees to provide reasonable assistance
to the Company and its employees in a timely and reasonably responsive
manner during the period of time during which she is receiving severance
payments for no additional payment from the Company. It shall be the
Company's responsibility through Xxxxx Xxxxxx or other senior management
personnel, to request such assistance when needed. Such requests shall
not require St. Xxxx to perform more than two hours of work per week and
such work shall be limited to that of the type and nature she performed
when employed by the Company. St. Xxxx shall devote her best efforts and
work in the Company's best interests whenever her assistance is
requested pursuant to this Section. Any person requesting assistance
from St. Xxxx will exercise reasonable efforts to avoid the disclosure
of material non-public information to her.
11. Consideration. St. Xxxx acknowledges that the compensation and benefits
granted to her hereunder are in excess of that which employees normally
receive upon separation from the Company or to which she would otherwise
be entitled, and that no other wages are due to her. St. Xxxx further
acknowledges that she has had the opportunity to review this Agreement
and to consult with independent counsel regarding its content and
present and future legal effects.
12. Return of Property. St. Xxxx agrees to and hereby represents that she
has returned to the Company all originals and all copies of the
Company's documents and/or the Company's property in her possession or
under her control including, but not limited to, any documents received
or prepared by her in connection with her employment, laptop and key
cards. She agrees to coordinate any visits to the company premises with
Xxxxx Xxxxxx or his designee.
13. Confidentiality. The parties acknowledge that, by virtue of her
employment, St. Xxxx has had access to the Company's trade secrets,
proprietary and confidential information. St. Xxxx agrees to execute the
Business Protection Agreement attached as Exhibit B hereto and
incorporated herein at the same time as the execution of this Agreement.
14. Miscellaneous.
14.1. Entire Agreement. This document is the entire, final and complete
agreement and understanding of the parties with respect to the
subject matter hereof, and supersedes and replaces all written
and oral agreements and understandings heretofore made or
existing by and between the parties or their representatives with
respect thereto. There have been no representations or
commitments by The Company or St. Xxxx to make any payment or
perform any act other than those expressly stated herein.
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14.2. Waiver. No waiver of any provision of this Agreement shall be
deemed, or shall constitute, a waiver of any other provisions,
whether or not similar, nor shall any waiver constitute a
continuing waiver. No waiver shall be binding unless executed in
writing by the party making the waiver.
14.3. Binding Effect. All rights, remedies and liabilities herein
given to or imposed upon the parties shall extend to, inure to
the benefit of and bind, as the circumstances may require, the
parties and their respective heirs, personal representatives,
administrators, successors and permitted assigns. The Company's
merger into another entity where immediately following the
completion of such merger, the Company's shareholders do not
continue to hold more than 50% of the outstanding securities of
the surviving corporation or The Company's sale or transfer of
all or substantially all of its assets shall entitle St. Xxxx to
acceleration and immediate payment of the sum provided for in
Section 3.
14.4. Amendment. No supplement, modification or amendment of this
Agreement shall be valid, unless the same is in writing and
signed by all parties hereto.
14.5. Severability. In the event any provision or portion of this
Agreement is held to be unenforceable or invalid by any court of
competent jurisdiction, the remainder of this Agreement shall
remain in full force and effect and shall in no way be affected
or invalidated thereby.
14.6. Enforcement. In the event that there is a breach of this
Agreement by either party or noncompliance with the terms
contained herein, the nondefaulting or prevailing party shall be
entitled to recovery of any reasonable attorney's fees and costs
incurred in enforcing this Agreement.
14.7. Governing Law and Venue. This Agreement and the rights of the
parties hereunder shall be governed, construed and enforced in
accordance with the laws of the State of Washington, without
regard to its conflict of law principles. Any suit or action
arising out of or in connection with this Agreement, or any
breach hereof, shall be brought and maintained in the federal or
state courts in Seattle, Washington. The parties hereby
irrevocably submit to the jurisdiction of such courts for the
purpose of such suit or action and hereby expressly and
irrevocably waive, to the fullest extent permitted by law, any
objection it may now or hereafter have to the venue of any such
suit or action in any such court and any claim that any such
suit or action has been brought in an inconvenient forum.
14.8. Counterparts. This Agreement may be executed by the parties
individually or in separate counterparts, each of which shall be
an original, and each of which taken together shall constitute
one in the same agreement.
14.9. Further Acts. The parties agree to execute such additional
documents and take such other actions as are reasonably
necessary to implement the terms of this Agreement.
15. No Pressure or Coercion. St. Xxxx acknowledges that she has read this
Agreement and is being given an opportunity to consider it for up to
twenty-one days, although she may sign it and deliver it to the Company
during the twenty-one day period. St. Xxxx has been advised to discuss
it with financial and legal counsel of her choice. The parties further
acknowledge that she may revoke this Agreement within seven (7) days
after she has signed and delivered it. Only after that seven-day period
has passed, will the obligations under this Agreement become effective.
IN WITNESS WHEREOF, the parties have executed this agreement freely,
voluntarily and with a complete understanding of its terms and present and
future effect as of the date set forth above.
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XXXXXXXX ST. XXXX NUTRACEUTIX, INC.
/s/ Xxxxxxxx X. St. Xxxx By: /s/ Xxxxx X. Xxxxxx
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Title: President & CEO
Date: March 23, 2001 ---------------------------------
Date: 3/24/01
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BIO TECHNIQUES LABORATORIES, INC.
By: Xxxxx X. Xxxxxx
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Title: President
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Date: 3/24/01
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