EXHIBIT 10.24
CONFIDENTIAL
SEPARATION AGREEMENT AND RELEASE OF CLAIMS
THIS CONFIDENTIAL SEPARATION AGREEMENT AND RELEASE OF CLAIMS
("Agreement"), is made between XXXX XXXXX ("Xxxxx"), and Xxxxxxx Laboratories,
Inc. and its divisions and subsidiaries (collectively, "Xxxxxxx" or "the
Company") and shall become effective immediately upon the date signed by Xxxxx
(the "Effective Date").
RECITALS
WHEREAS, Xxxxx has been employed by Xxxxxxx as Executive Vice
President and Chief Operating Officer of Xxxxxxx Laboratories, Inc., and the
parties hereto desire to end that relationship, and to settle, fully, finally
and amicably, all claims against each other, including, but not limited to, any
claims related to the employment of Xxxxx and the termination of that
employment.
NOW, THEREFORE, in order to provide said benefits and in consideration
of the mutual promises, covenants and representations set forth below and other
good and valuable consideration, the parties agree as follows:
1. RELINQUISHMENT OF POSITIONS/EMPLOYMENT
The Effective Date of this Agreement is the date it is signed by
Xxxxx. Pursuant to this Agreement, Xxxxx agrees to resign all of his positions
as an officer and director of the Company, including, without limitation, as a
director of Xxxxxxx Laboratories, Inc., as Chief Operating Officer of Xxxxxxx
Laboratories, Inc., as Executive Vice President of Xxxxxxx Laboratories, Inc.,
and as a Xxxxxxx Laboratories, Inc., employee. Such resignation shall become
effective without further action on a date (Resignation Date) to be determined
by the Chairman after consultation with the new Chief Executive
Officer/President but in no event later than June 1, 1996. Xxxxx agrees to
execute a resignation letter dated appropriately. Such resignation shall take
effect at the time specified therein. Until the effective Resignation Date,
Xxxxx shall continue in his current capacity as Executive Vice President, Chief
Operating Officer and Director of Xxxxxxx Laboratories, Inc. and receive his
current salary and benefits.
2. PAYMENT OF GOOD AND VALUABLE CONSIDERATION
Within 72 hours of the Resignation Date, Xxxxx shall be paid his
final paycheck and all accrued but unused vacation.
x. Xxxxx shall thereafter be paid $13,786 per month without any
deductions or withholdings for a period of
eighteen (18) months commencing on the Resignation Date. Xxxxxxx shall make
these payments between the 1st and 5th of each month and will provide Xxxxx with
a 1099. Except as to the continuing payment, Xxxxx shall not be entitled to any
other cash payments.
x. Xxxxx currently has stock options both in Xxxxxxx
Laboratories, Inc. pursuant to the 1985 plan and in Pure Pulse pursuant to the
1994 plan as set forth in Schedule A attached hereto. Those stock options shall
be converted to non-qualified stock options and shall remain in effect until
their expiration dates as set forth in Schedule X. Xxxxx and Xxxxxxx shall sign
any agreements or papers necessary to effectuate such conversion.
x. Xxxxx is not now and shall not be entitled to any
Supplemental Retirement Annuity after the Resignation Date of this Agreement.
x. Xxxxxxx will continue to provide Xxxxx with the current
benefits for life, disability, dental and medical plans until the earlier of
(i) any coverage under his next employer for medical, disability, dental and
life insurance or (ii) the expiration of 18 months from the Resignation Date.
3. NON-DISCLOSURE OF TRADE SECRETS AND CONFIDENTIAL INFORMATION
Xxxxx understands and agrees that in the course of employment
with Xxxxxxx he has acquired confidential information and trade secrets
concerning the operations of Xxxxxxx and its future plans and methods of doing
business, which information Xxxxx understands and agrees would be damaging to
Xxxxxxx if disclosed to a competitor or made available to any other person or
corporations. Xxxxx understands and agrees that such information has been
divulged to him in confidence, and he understands and agrees that he will keep
such information secret and confidential. Furthermore, Xxxxx agrees that he
will on the date of resignation turn over to Xxxxxxx all Company confidential
files, records, and other documents. In addition, Xxxxx will return all
property in his possession owned by Xxxxxxx.
4. NON-SOLICITATION
Xxxxx further agrees that he will not solicit or participate in
or assist in any way in the solicitation of any person in management,
professional or technical positions at Xxxxxxx for employment by any other
company for a period of 18 months after the Resignation Date. However, Xxxxx
will not violate this provision if said employee pursues a position with Xxxxx'x
future employer without any encouragement or involvement direct or indirect of
Xxxxx.
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In view of the nature of Xxxxx'x employment and the information and
trade secrets which he has received during the course of his employment, he
likewise agrees that Xxxxxxx would be irreparably harmed by any violation of
paragraphs 3, 4, 5 and 10 of this Agreement and that, therefore, Xxxxxxx shall
be entitled to an injunction prohibiting him from any violation of paragraphs 3,
4, 5 and 10 of this Agreement.
5. NON-COMPETE AND COOPERATION AGREEMENT
x. Xxxxx agrees that during the 18 months after the Resignation
Date, he shall, make every effort to be reasonably available to consult and
provide Xxxxxxx transition assistance at reasonable times as may be requested by
the Chief Executive Officer of Xxxxxxx, provided Xxxxx is reimbursed for any
reasonable out of pocket expenses incurred by him providing such assistance.
Where there are business conflicts for Xxxxx'x time, the CEO and Xxxxx will
agree on a mutually agreeable schedule for his assistance. Xxxxx further agrees
that during this 18 month period he shall not establish any company, or
otherwise work for any company or entity identified on Schedule B hereto.
x. Xxxxx further agrees that during this 18 month period, or
thereafter, he may be asked to and that he will, in fact, cooperate with
Xxxxxxx, its attorneys or experts retained by Xxxxxxx or its attorneys in
connection with any litigation matters involving Xxxxxxx that are pending or
that may arise hereafter. To the extent that such cooperation or assistance is
requested of Xxxxx, he shall be paid at a rate of $100 per hour and any
reasonable out-of-pocket expenses for any such work, provided, however, that he
will not be paid any money for any effort he undertakes in connection with
legally compelled testimony or preparation for such testimony, unless such
testimony is required as a direct result of Xxxxxxx'x designating Xxxxx as an
expert witness or the most knowledgeable corporate person.
6. NO OTHER CLAIMS
Xxxxx represents and warrants that he has not filed against
Xxxxxxx or any of its representatives, any claim, complaint, charge or suit,
with any federal, state or other agency, court, board, office or other forum or
entity, including without limitation, any application for workers compensation
benefits. Xxxxx agrees that he will not, at any time hereafter, file any such
claim, complaint, charge or suit based upon circumstances heretofore arising,
other than a claim arising from a breach by the Company of this Agreement, and
that if any agency, court, board, office, forum or entity assumes jurisdiction
of any such grievance, complaint, charge or suit he will request such entity to
withdraw from the matter.
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7. GENERAL RELEASE
a. As a material inducement to Xxxxxxx to enter into this
Agreement, Xxxxx, on behalf of himself and his heirs, executors, administrators,
successors and assigns, does hereby irrevocably and unconditionally release,
acquit and forever discharge Xxxxxxx, and its owners, stockholders,
predecessors, successors, assigns, agents, directors, officers, employees,
representatives, attorneys, divisions, subsidiaries, affiliates (and agents,
directors, officers, employees, representatives, attorneys, and successors of
such divisions, parents, subsidiaries and affiliates), acting by, through, under
or in concert with any of them, or any of them, from any and all charges,
complaints, grievances, claims, liabilities, obligations, promises, agreements,
controversies, damages, actions, causes of action, suits, rights, demands,
costs, losses, debts and expenses (including attorneys' fees and costs actually
incurred), of any nature whatsoever, known or unknown, suspected or unsuspected,
joint or several, which Xxxxx has had or may hereafter claim to have had,
against Xxxxxxx by reason of any matter, act, omission, cause or event whatever
from the beginning of time to the Resignation Date ("Claims"); other than those
obligations set forth in this Agreement.
This release specifically includes, but without limiting the foregoing
general terms, the following: (1) all Claims arising from or relating in any
way to any act or failure to act by any employee of Xxxxxxx, (2) all Claims
arising from or relating in any way to the employment relationship of Xxxxx with
Xxxxxxx and/or the termination thereof, including any claims which have been
asserted or could have been asserted against Xxxxxxx, together with (3) any and
all Claims which might have been asserted by Xxxxx in any suit, claim, or
charge, for or on account of any matter or things whatsoever that has occurred
up to and including the date of this Agreement, under any and all laws,
statutes, orders, regulations, or any other claim of right(s), including without
limitation, any claim under Title VII of the Civil Rights Act of 1964 and the
California Fair Employment and Housing Act or any Claim in contract or tort.
b. As a material inducement to Xxxxx to enter into this Agreement,
Xxxxxxx, on behalf of itself and its subsidiaries, affiliates, divisions,
directors, officers, shareholders, employees, representatives, attorneys,
agents, predecessors, successors and assigns, does hereby irrevocably and
unconditionally release, acquit and forever discharge Xxxxx, and his heirs,
executors, administrators, successors, assigns, agents, representatives and
attorneys, acting by, through, under or in concert with any of them, or any of
them, from any and all charges, complaints, grievances, claims, liabilities,
obligations, promises, agreements, controversies, damages, actions, causes of
action, suits, rights, demands, costs, losses, debts and expenses (including
attorneys' fees and costs actually incurred), of any
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nature whatsoever, known or unknown, suspected or unsuspected, joint or several,
which Xxxxxxx has had or may hereafter claim to have had, against Xxxxx by
reason of any matter, act, omission, cause or event whatever from the beginning
of time to the Resignation Date ("Claims"); other than those obligations set
forth in this Agreement. Provided, however, this release does not extend to any
actions brought against Xxxxx as an individual defendant as opposed to as an
officer or director of Xxxxxxx with regard to any claims outside the course and
scope of his employment.
8. RELEASE OF UNKNOWN OR UNSUSPECTED CLAIMS
For the purpose of implementing a full and complete release and
discharge of the parties hereto, Xxxxx and Xxxxxxx expressly acknowledge that
this Agreement is intended to include in its effect, without limitation, all
Claims which the parties have against one another but do not know or suspect to
exist in their favor at the time of execution hereof, which if known or
suspected by them would materially affect their decision to execute this
release; that this Agreement contemplates the extinguishment of any such Claim
or Claims, and that all rights under Section 1542 of the California Civil Code
are hereby expressly waived. Section 1542 of the Civil Code 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 materially affected his
settlement with the debtor."
The parties represent that they have read and understood the
provisions of California Civil Code Section 1542.
9. INDEMNITY FOR BREACH OR FALSE REPRESENTATION
As a further material inducement to Xxxxxxx to enter into this
Agreement, Xxxxx hereby agrees to indemnify and hold harmless Xxxxxxx and their
representatives from and against any and all loss, cost, damage or expense,
including, without limitation, attorneys' fees, caused by any prior claims filed
by Xxxxx.
10. CONFIDENTIALITY OF SETTLEMENT AGREEMENT
Xxxxx represents and agrees that since he first received the
proposed agreement on March 12, 1996, he has not disclosed the terms of the
agreement and he will keep the terms, amounts and all other specific facts of
this Agreement completely confidential and that he will not disclose any
information concerning this Agreement to any person or entity, other than that
which is legally required and his immediate family and professional
representatives or to any prospective employer to the extent
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necessary to inform such employer of Xxxxx'x obligation pursuant to this
Agreement; provided that disclosure to his immediate family or professional
representatives is conditioned on the fact that they agree to keep said
information confidential and not disclose it to others. Provided, however,
disclosures made to the Company's general counsel or officers and directors of
the Company prior to the effective date of this Agreement are not subject to
this confidentiality clause. Xxxxx acknowledges that a major and significant
consideration on behalf of Xxxxxxx in entering into this Agreement is the
assurance that there will be no publicity of this Agreement and that all terms
and conditions and the very fact thereof shall remain confidential. In the
event Xxxxx discloses the alleged facts upon which this Agreement is based, the
amount of consideration tendered to him, or the terms of the Agreement in
violation of this Agreement, Xxxxxxx shall be entitled to terminate any payment
due under this Agreement or take any other action legally allowable. Xxxxx
agrees that any direct dispute, controversy or claim among the parties to this
Agreement arising out of or relating to this paragraph, or any breach or
asserted breach thereof, shall be determined and settled by arbitration in
accordance with the rules for dispute resolution of JAMS/ENDISPUTE. The
prevailing party in such arbitration shall be entitled to its reasonable costs
and expenses (including reasonable attorneys' fees in such arbitration as part
of the award. Judgment on the award may be entered in any court having
jurisdiction thereof, and the parties specifically reserve all rights to appeal
such judgment as if it were rendered in a court of law. If Xxxxxxx discloses
any information concerning this Agreement or Xxxxx'x employment and termination
from Xxxxxxx to the general shareholders who are not otherwise associated with
the Company or members of the public, Xxxxx is automatically released from any
and all obligations contained in this paragraph.
11. RIGHT TO APPROVE PRESS RELEASE
On the Resignation Date, Xxxxxxx shall issue a mutually agreed
upon press release to the public concerning Xxxxx'x resignation. No other press
release can be made concerning Xxxxx'x resignation or the circumstances
concerning his departure from the Company.
12. INDEMNIFICATION AGAINST CLAIMS
Xxxxxxx agrees to indemnify and hold Xxxxx harmless from any
liability, claims, demands, costs, expenses and attorneys' fees incurred by him
as a result of any actions by him in the course of his employment, or as a
director of the Company to the extent other directors would be so indemnified.
Xxxxxxx further agrees to indemnify and hold Xxxxx harmless from any liability,
claims, demands, costs, expenses, and attorneys' fees incurred by him as a
result of any actions by him, specifically in connection with providing
transition assistance to Xxxxxxx.
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13. BINDING AGREEMENT
This Agreement shall be binding upon Xxxxx and Xxxxxxx and their
respective heirs, administrators, representatives, executors, successors and
assigns and shall inure to the benefit of the parties hereto and their
representatives, and each of them, and to their heirs, administrators,
representatives, executors, successors and assigns.
14. ATTORNEY'S FEES
Each party hereto will bear its own costs and attorneys' fees
incurred in achieving the settlement and release of this matter. If any party
defaults under the terms of this Agreement, and the other party employs an
attorney to enforce or interpret the terms of this Agreement, or to obtain a
declaration of rights under this Agreement, whether or not legal proceedings are
commenced, then such other party shall be entitled to recover from the
defaulting party all attorneys' fees, costs and expenses incurred. If a party
commences an action against the other to enforce or interpret the terms of this
Agreement, or to obtain a declaration of rights under this Agreement, the
prevailing party shall be entitled to all attorneys' fees, costs and expenses
incurred in such action or any appeal or enforcement of such action.
15. NON-RELIANCE
Other than as expressly set forth in this Agreement, Xxxxx and
Xxxxxxx represent and acknowledge that in executing this Agreement they did not
rely upon and they have not relied upon any representation nor statement made by
any of the parties hereto or by any of their agents, representatives or
attorneys with regard to the subject matter, basis or effect of this Agreement
or otherwise.
16. AGREEMENT OBLIGATES, EXTENDS AND INURES
The provisions of this Agreement shall be deemed to obligate,
extend and inure to the benefit of the legal successors, assigns, transferees,
grantees, heirs, shareholders, officers and directors of each signatory party
hereto, and to those who may assume any or all of the above-described capacities
subsequent to the execution and Resignation Date of this Agreement.
17. NON-ADMISSION OF LIABILITY
This Agreement shall not in any way be construed as an admission
by Xxxxxxx that it has acted in any manner in violation of the common law or in
violation of any federal, state or local statute or regulation.
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18. METHOD OF EXECUTION
This Agreement may be executed in counterparts and each
counterpart shall be deemed a duplicate original.
19. APPLICABLE LAW
This Agreement is deemed to have been made and entered into in
the State of California and shall in all respects be interpreted, enforced and
governed under the laws of said State. The language of all part is this
Agreement shall in all causes be construed as a whole, according to its fair
meaning, and not strictly for or against any of the parties.
20. SEVERABILITY
The provisions of this Agreement are severable, and should any
provision of this Agreement be declared or be determined by any arbitrator or
court to be illegal or invalid, any such provision shall be stricken, and the
validity of the remaining parts, terms or provisions shall not be affected.
21. ENTIRE AGREEMENT
This Agreement sets forth the entire agreement between the
parties and fully supersedes any and all prior agreements or understandings
between the parties pertaining to the same subject matter, further, this
Agreement may not be changed except by explicit written agreement by the parties
hereto.
XXXXX states that he has carefully read the foregoing Agreement, knows
and understands its contents, and voluntarily executes this Agreement.
Date: March 14, 1996 /s/ Xxxx Xxxxx
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At 4:20 pm (PST) Xxxx Xxxxx
Date: March 15, 1996 /s/ Xxxx X. Starry
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At 10:20 am (EST) Xxxx Xxxxxx on behalf of
Xxxxxxx Laboratories, Inc.
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SCHEDULE A
Xxxxxxx (Pursuant to 1985 Plan)
-------------------------------
NO. OF SHARES EXPIRATION DATE
7,350 May 31, 1998
20,000 September 30, 1999
10,000 August 31, 2000
Pure Pulse (Pursuant to 1994 Plan)
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NO. OF SHARES EXPIRATION DATE
600 August 31, 2000
The foregoing shares shall be converted to non-qualified stock
options and shall expire at the respective times as set forth above.
A-1
SCHEDULE B
XXXXXXX COMPETITORS
AVX
Aerovox
Beta Physics - Titan
Deltek
DTI
Jaycor
LCC - France
NWL
Physics International
PSI - Titan
SAIC - only with those divisions which have in the past competed
directly with Xxxxxxx
Texas Microsystems - Sequoia
B-1
