Exhibit 10.2
SEVERANCE AGREEMENT AND GENERAL RELEASE
This Severance Agreement and General Release (the "Agreement") is
made effective as of November 1, 2003, between Competitive
Technologies, Inc., a Delaware corporation with an office and
place of business at 0000 Xxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx
("Employer"), and Xxxxx X. XxXxxx, Xx. whose address is currently
00 Xxxxxx Xxxx, Xxxxxxxxxx, XX 00000 ("Employee"). Employer and
Employee agree that:
1.0 Last Day of Employment. Employee's last day of employment
with Employer was November 1, 2003.
2.0 Consideration. In consideration for Employee's entering
into and signing this Agreement and compliance with the promises
made herein, Employer shall provide to Employee the following
severance benefits to which the Employee would not otherwise be
entitled:
(a) Employer shall pay to Employee the sum of One Hundred
Twelve Thousand and Five Hundred Dollars ($112,500.00), less
lawful deductions (the "Severance Payment"). Employer shall make
the Severance Payment to Employee within fourteen (14) days after
Employer's receipt of funds pursuant to that certain Agreement
dated August 1, 1993 (the "UCF Agreement) between The University
of Colorado Foundation, Inc, and Employer (f/k/a University
Patents, Inc.) concerning litigation entitled The University of
Colorado Foundation, Inc., et al. v. American Cyanamid Company,
Docket No. 02-1587 currently pending in the United States Court
of Appeals for the Federal Circuit; provided, however, that
notwithstanding anything to the contrary contained herein, no
Severance Payment shall be due from Employer to Employee unless
and until Employer receives funds pursuant to the UCF Agreement
that are sufficient to make the Severance Payment. However,
should Employer continue to assign portions of the anticipated
Materna award to be received pursuant to the UCF Agreement to
third party purchasers, Employer agrees to pay Employee 3.237% of
future amounts of the Materna award assigned to such third party
purchaser(s) and 3.237% of any balance due to Employer from such
award, within fourteen (14) days after Employer's receipt of
funds pursuant to the UCF Agreement. However, in no event shall
the total amount paid to Employee by Employer under this
subparagraph exceed One Hundred Twelve Thousand Five Hundred
Dollars ($112,500.00).
(b) Employer shall promptly transfer to Employee title to
the 1999 Toyota Camry XLE, VIN4T1BG28K7XU891361 previously
provided by Employer for Employee's use.
(c) Employer shall pay to Employee the sum of Four Thousand
Seven Hundred Three and 70/100 Dollars ($4,703.70), less lawful
deductions, which sum shall be paid to Employee promptly
following Employee's execution and delivery to Employer of both
this Agreement and a letter in the form of Exhibit A attached
hereto (which shall be dated, signed and returned by Employee to
Employer after the expiration of the revocation period described
in Section 4 below).
(d) Employer shall extend the expiration date on stock
option grants issued to the Employee to the earlier of ten (10)
years from the date of issue of the grant or three (3) years from
the Last Day of Employment listed in Section 1 hereof.
3.0 No Consideration Absent Execution of this Agreement.
Employee understands and agrees that Employee would not receive
the consideration specified in Section 2 above except for his
execution of this Agreement and fulfillment of the promises
contained herein.
(a) Effective as of the Last Date of Employment, Employee
agrees to resign from the Board of Directors of any Employer
affiliates and/or subsidiaries, including, but not limited to the
following:
Melanotan Corporation
Innovation Partners International, Inc.
Digital Acorns
Life Sciences Acorns
CTT Acquisition Corp.
Vector Vision, Inc.
University Optical Products
Genetic Technology Management
4.0 Revocation. Employee may revoke his acceptance of this
Agreement for a period of seven (7) days following the day
Employee executes this Agreement (the "revocation period"). If
the last day of the revocation period is a Saturday, Sunday, or
legal holiday in Connecticut, then the revocation period shall
not expire until the next following day which is not a Saturday,
Sunday, or legal holiday. This Agreement shall not become
effective or enforceable until the revocation period has expired
and Employee has executed and returned to Employer both this
Agreement and a letter in the form of Exhibit A attached hereto
(which must be dated, signed and returned by Employee to Employer
after the expiration of the revocation period but no more than
ten (10) days after the date Employee executes this Agreement).
5.0 General Release of Claims. Employee knowingly and
voluntarily releases and forever discharges Employer of and from
any and all liabilities, debts, obligations, promises, covenants,
agreements, contracts, controversies, suits, actions, causes of
action, judgments, executions, damages, and/or claims of any
nature whatsoever, whether known and unknown, which Employee has
or may have against Employer as of the date of Employee's
execution of this Agreement, including without limitation any
claims for alleged violations of, or any claims relating to:
- The National Labor Relations Act, as amended;
- Title VII of the Civil Rights Act of 1964, as amended;
- Sections 1981 through 1988 of Title 42 of the United States
Code;
- The Employee Retirement Income Security Act of 1974, as
amended;
- The Immigration Reform Control Act, as amended;
- The Americans With Disabilities Act of 1990, as amended;
- The Age Discrimination in Employment Act of 1967, as
amended;
- The Family and Medical Leave Act of 1993, as amended;
- The Fair Labor Standards Act of 1938, as amended;
- The Occupational Safety and Health Act, as amended;
- The Consolidated Omnibus Budget Reconciliation Act, as
amended;
- The Connecticut Family and Medical Leave Act;
- The Connecticut Human Rights and Opportunities laws, as
amended;
- The Connecticut Fair Employment Practices Act, as amended;
- The Connecticut Minimum Wage Law, as amended;
- The Equal Pay Law for Connecticut, as amended;
- any other federal, state or local civil or human rights law
or any other federal, state or local law, regulation or
ordinance;
- any public policy, contract, tort, or common law; and
- any right to recover costs, fees, or other expenses,
including attorneys' fees, incurred in these matters.
As used in this Section 5, the term "Employer" shall be deemed to
include Employer and Employer's affiliates, subsidiaries,
divisions, successors and assigns, and the current and former
officers, directors, employees, shareholders and agents thereof.
Notwithstanding anything to the contrary contained herein,
nothing in this Agreement shall be deemed to release or affect in
any way the Employee's rights, if any, with respect to (i) any
options granted to Employee under the Competitive Technologies,
Inc. Restated Key Employees' Stock Option Plan or the Competitive
Technologies, Inc. 1997 Employees' Stock Option Plan As Amended
January 24, 2003, (ii) the Competitive Technologies, Inc. 401(k)
Plan; or, (iii) Employee's rights pursuant to the Indemnification
provisions (Section 4.01) of the Company's By-Laws as amended
November 23, 1997.
6.0 No Charges or Complaints. Employee waives his right to file
any charge, complaint or action against Employer, and/or to
participate in any charge, complaint or action against Employer
which may be made by any other person or organization on
Employee's behalf, before any federal, state or local court or
administrative agency. Employee represents that he is not aware
of any factual basis for any such charge, complaint or action,
and should any such charge, complaint or action be filed,
Employee agrees that he will not accept any relief or recovery
therefrom.
7.0 No Disparagement. Employee agrees that he shall not utter
disparaging remarks or defamation, oral or written, with respect
to Employer or concerning the business, affairs, operations,
financial condition, character, performance or any other
information or actions (past, present or future) of Employer.
Employee shall have the right to approve the content of any press
release that Employer may choose to issue concerning the
termination of Employee's employment with Employer, provided,
however, that Employee's prior approval right as set forth herein
shall be exercised reasonably by Employee.
8.0 Non-Disclosure of Confidential Information.
(a) As used in this Agreement, the term "Confidential
Information" means all items, materials and information which
belong to Employer and are not generally known to the public, or
which have been confidentially provided to Employer by its
customers or other third parties, and which are related to the
business and operations of Employer (or its customers or other
third parties) and were disclosed to Employee during the course
of Employee's employment with Employer. Confidential Information
includes, but is not limited to, items, materials and information
concerning: trade secrets (as defined by applicable law);
methods of operation; non-public know-how of Employer or
customers of Employer; customer account information, lists and
data; pricing data, policies and procedures; estimating
procedures; sources of business; marketing plans or strategies;
the existence and contents of agreements; financial information,
data, statements or accounts; technology owned by customers or
third parties and disclosed to, licensed, marketed or otherwise
used by Employer in its business; and all documentation, reports
and data (recorded in any form, electronically or otherwise)
relating to the foregoing. Confidential Information does not
include anything described above (i) which was known to Employee
before his employment with Employer, or (ii) which is generally
known to the public, unless it became generally known through an
act or failure to act of Employee, in which case it shall remain
Confidential Information.
(b) Employee acknowledges that Employer in the ordinary
course of its business develops, possesses, uses and acquires
Confidential Information relating to the business and operations
of Employer, and Confidential Information belonging to customers
of Employer and third parties; that Confidential Information is a
valuable and unique asset of Employer, or of the customers of
Employer or third parties who have furnished it to Employer; and
that such Confidential Information must be maintained under
strict confidentiality in order for Employer to maintain a
competitive position in its business and operations, and attract
and keep customers.
(c) Employee understands and agrees that Confidential
Information was only disclosed to Employee in confidence and for
use by Employee solely in connection with his/her job for
Employer. If Employee is in doubt as to whether any items,
materials or information he/she has received in the course of
his/her job with Employer constitute Confidential Information,
Employee will treat such items, materials or information as
Confidential Information. In the event of a dispute between
Employee and Employer as to whether specific items, materials or
information constitute Confidential Information, the items,
materials or information in dispute shall be presumed to be
Confidential Information, and the Employee shall have the burden
of proving that the items, materials or information in dispute
are not Confidential Information.
(d) During the period of his employment with Employer and
for an additional period ending three (3) years after the
termination of Employee's employment with Employer, Employee
shall not, without the prior written authorization of Employer,
use for Employee's own benefit or disclose to any person or
entity, either directly or indirectly, any and all Confidential
Information.
9.0 Non-Solicitation of Customers; No Work For Customers.
(a) For a period ending six (6) months after the date of
termination of Employee's employment with Employer, Employee will
not, either directly or indirectly, solicit on behalf of any
person or entity other than Employer (including but not limited
to the Employee himself), the business of any customer or
prospective customer of Employer (i) whose needs became known to
Employee during the term of his employment with the Corporation,
or (ii) with whom Employee had any dealings as a result of his
employment with Employer at any time during the two (2) years
immediately preceding the termination of Employee's employment
with Employer, wherein such solicitation involves any service or
product that is similar to or in competition with any service or
product of Employer either existing or in the process of being
developed at the time of the termination of Employee's employment
with Employer.
(b) For a period ending six (6) months after the date of
termination of Employee's employment with Employer, Employee will
not, either directly or indirectly, perform work for any customer
or prospective customer of Employer (i) whose needs became known
to the Employee during the term of his employment with Employer,
or (ii) with whom Employee had any dealings as a result of his
employment with Employer at any time during the two (2) years
immediately preceding the termination of Employee's employment
with Employer, wherein such work involves any service or product
that is similar to or in competition with any service or product
of Employer either existing or in the process of being developed
at the time of the termination of Employee's employment with
Employer.
10.0 Confidentiality of Agreement. Employee and Employer agree
that the existence and substance of this Agreement shall remain
confidential, and that the existence or substance of this
Agreement may be only be disclosed: (i) as evidence in a
subsequent proceeding in which any of the parties allege a breach
of this Agreement, or in any proceeding in which this Agreement
provides a defense thereto; (ii) in response to a valid subpoena
or court order; (iii) in response to any lawful request of the
Internal Revenue Service or other governmental agency; (iv) in
connection with the usual legal, accounting or auditing
requirements of Employer; and (v) by the parties to their legal
counsel. Except as provided herein, Employer, Employee and their
counsel shall not publicize or disclose to anyone the fact of,
the terms of, or the amounts of payments made pursuant to this
Agreement. In the event of any breach of the obligations set
forth in this paragraph by Employee or Employee's
representatives, Employee shall immediately reimburse and repay
to Employer all amounts paid by Employer to Employee pursuant to
this Agreement.
11.0 Governing Law and Jurisdiction. This Agreement and the
rights and obligations of the parties hereunder shall in all
respects be governed by and construed and enforced in accordance
with the laws of the State of Connecticut (without giving effect
to Connecticut's principles of conflicts of law). Employee
consents to the jurisdiction and exclusive venue of the State
and/or federal courts in Connecticut in any litigation concerning
this Agreement or its enforcement.
12.0 Severability. Both Employee and Employer acknowledge and
agree that the restrictions and obligations imposed on the
Employee by virtue of this Agreement are, in light of the
circumstances, fair and reasonable, and are reasonably required
for the protection of Employer. Furthermore, it is the intent of
the parties that this Agreement be enforceable to the fullest
extent permitted by applicable law. Accordingly, if any provision
of this Agreement as presently written should be construed to be
illegal, invalid or unenforceable, said illegal, invalid or
unenforceable provision shall be deemed to be amended and
construed to have the broadest scope permissible (Employee and
Employer intending and agreeing that any provision of this
Agreement may be reformed to have the broadest scope permitted by
applicable law), and if no validating amendment or construction
is possible, shall be severable from the rest of this Agreement,
and the validity, legality, and enforceability of the remaining
provisions of this Agreement shall not in any way be affected or
impaired thereby; provided, however, that if any portion of the
general release language contained in Section 5 of this Agreement
should be ruled unenforceable as a result of any action by or on
behalf of Employee, Employee shall immediately return to Employer
the consideration paid to Employee by Employer under this
Agreement.
13.0 Entire Agreement; Modification; Binding Effect.
(a) This Agreement, consisting of eight (8) pages (which
includes the signature page and Exhibit A), sets forth the entire
agreement of the parties concerning its subject matter and shall
supersede the terms of any other agreement, representation or
understanding (whether oral or written) between Employee and
Employer concerning the subject matter of this Agreement.
(b) This Agreement may only changed or modified in a
writing signed by both the Employee and the President or General
Counsel of Employer wherein specific reference is made to this
Agreement.
(c) This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs,
executors, administrators, personal or legal representatives,
successors and assigns.
14.0 Non-Waiver. Any delay or failure by either party to
exercise any right under this Agreement, or any party's partial
exercise of any right under this Agreement, shall not constitute
a waiver of such right or any other right. The waiver by either
party of any particular breach of this Agreement or right
hereunder shall not operate or be construed as a waiver of any
other breach of this Agreement or right hereunder, and no such
waiver shall be effective unless set forth in writing by the
Employee or the President or General Counsel of Employer.
15.0 Miscellaneous Provisions.
(a) Any caption contained in this Agreement is for
convenience only and shall not be deemed a substantive part of
this Agreement. As used herein, the masculine, feminine or
neuter gender, and the singular or plural number, shall each be
deemed to include the others whenever the context so indicates.
(b) This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all
of which together shall constitute one and the same Agreement.
16.0 Cooperation.
(a) In connection with any lawsuit, administrative
proceeding or other dispute that in any way involves Employee's
conduct, activities or knowledge of matters arising during
Employee's employment with Employer, Employee shall cooperate
with Employer and upon Employer's request shall provide complete
and truthful information (by way of testimony, affidavits or
otherwise as may reasonably be requested by Employer) concerning
Employee's conduct, activities or knowledge of matters arising
during Employee's employment with Employer. Employer agrees to
reimburse Employee for any reasonable out-of-pocket expenses
incurred by Employee in providing such cooperation.
(b) Employer and/or members of the Employer's Board of
Directors agree to cooperate with Employee and, if required,
shall provide complete and truthful information (by way of
testimony, affidavits, etc.) in connection with the SEC
investigation in the matter of trading in the Company's stock.
17.0 No Admission of Wrongdoing. Employee agrees that neither
this Agreement nor the furnishing of the consideration for this
Agreement shall be deemed or construed at any time for any
purpose as an admission by Employer of any liability or any
unlawful conduct of any kind.
18.0 NO JURY TRIAL.
EMPLOYEE WAIVES ANY RIGHT TO A JURY TRIAL IN ANY LITIGATION
CONCERNING THIS AGREEMENT INCLUDING, BUT NOT LIMITED TO, ANY
LITIGATION CONCERNING A BREACH OF THIS AGREEMENT OR ENFORCEMENT
OF ITS TERMS OR CONDITIONS.
19.0 Agreement Read and Understood. Employee acknowledges that
he has read and understands this Agreement, and that he
understands that this Agreement includes a full and final release
of all of his claims and potential claims against Employer as of
the date of this Agreement.
EMPLOYEE HAS BEEN ADVISED THAT HE HAS AT LEAST TWENTY-ONE (21)
DAYS TO CONSIDER THIS AGREEMENT AND HAS BEEN ADVISED IN WRITING
TO CONSULT WITH AN ATTORNEY PRIOR TO EXECUTION OF THIS AGREEMENT.
HAVING ELECTED TO EXECUTE THIS AGREEMENT, TO FULFILL THE PROMISES
SET FORTH HEREIN, AND TO RECEIVE THEREBY THE SUMS AND BENEFITS
SET FORTH ABOVE, EMPLOYEE FREELY AND KNOWINGLY, WITHOUT COERCION
OR DURESS, AND AFTER DUE CONSIDERATION, ENTERS INTO THIS
AGREEMENT INTENDING TO WAIVE, SETTLE AND RELEASE ANY AND ALL
CLAIMS HE HAS OR MIGHT HAVE AGAINST EMPLOYER.
IN WITNESS WHEREOF, the parties hereto knowingly and voluntarily
execute this Agreement as of the dates set forth below:
EMPLOYEE:
Dated: 12/9/03 By: s/Xxxxx X. XxXxxx, Xx.
Xxxxx X. XxXxxx, Xx.
COMPETITIVE TECHNOLOGIES, INC.
Dated: 12/4/03 By: s/Xxxx X. Nano
Xxxx X. Nano
President and Chief Executive
Officer
EXHIBIT A
Competitive Technologies, Inc.
Attn.: Xxxx X. Nano
President and CEO
0000 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Dated: ______________
Re: Severance Agreement and General Release
Dear Xxxx:
On ____________________ [INSERT DATE], I executed a
Severance Agreement and General Release (the "Agreement") between
Competitive Technologies, Inc. ("CTT") and me. I was advised by
CTT in writing to consult with an attorney of my choosing prior
to executing the Agreement.
More than seven (7) days have passed since I executed the
Agreement. I have at no time revoked my acceptance of the
Agreement, and I hereby reaffirm my acceptance of the Agreement.
Therefore, in accordance with the terms of the Agreement, I
request payment of the severance benefits described in the
Agreement.
Very truly yours,
Xxxxx X. XxXxxx, Xx.
