Exhibit 1.011
-------------
SEPARATION AGREEMENT AND MUTUAL RELEASE
---------------------------------------
This Separation Agreement and Release ("Agreement") is made by and between
Xxxxxx Xxxxxxxxxxxxx ("Employee") and Accelrys, Inc. ("Company") (jointly
referred to as the "Parties").
RECITALS
--------
1) Employee has been employed by the Company as its Senior Vice President
of Corporate Development.
2) Employee's employment has terminated on August 15, 2005 ("Termination
Date");
3) the Parties wish to resolve any and all disputes, claims, complaints,
grievances, charges, actions, petitions and demands that they may have
against each other, including, but not limited to, any and all claims
arising or in any way related to Employee's employment with or
separation from the Company;
NOW THEREFORE, in consideration of the promises made herein, the Parties
hereby agree as follows:
AGREEMENT
---------
1. Effective Date. This Agreement shall become effective and enforceable
eight days after execution by both parties, provided that Employee has not
revoked the Agreement as set forth in Section 7, below (the "Effective Date").
2. Consideration. The Company agrees to pay Employee the sum of one hundred
and seventeen thousand five hundred dollars ($117,500), less applicable
withholdings. This payment will be made in equal installments, commencing on the
Company's first payroll date after the Effective Date of this Agreement and
ending upon the Company's first payroll date after February 15, 2006, provided
that, and for so long as, Employee complies with his obligations set forth in
Section 12, below . In addition, Company shall reimburse Employee for up to six
months of premiums paid under COBRA for medical dental and vision insurance
coverage, at the same level at which Employee held such coverage prior to the
Termination Date, provided that such reimbursement will cease if Employee
obtains other employment with medical coverage within such six month period, and
further provided that Employee will notify Company upon obtaining such coverage.
3. Confidential Information. Employee shall continue to maintain the
confidentiality of all confidential and proprietary information of the Company
and shall continue to comply with the terms and conditions of all
confidentiality and invention assignment agreements previously executed by
Employee ("Confidentiality Agreement"). Employee shall return all of the
Company's property and confidential and proprietary information in his
possession to the Company.
4. Full Satisfaction of Salary, Benefits and Vesting Obligations. Employee
acknowledges and agrees that the Company has paid all salary, wages, bonuses,
accrued vacation (amounting to 163.05 hours), and any and all other benefits due
to Employee. Employee further acknowledges that no medical, dental or other
benefits are owed Employee, and that any options to purchase the Company's stock
have ceased vesting as of the Termination Date. Company acknowledges that
Employee has no obligation to repay amounts he received from the Company as a
sign-on bonus upon accepting employment. The parties acknowledge that Employee
will not be a Section 16 officer after the Termination Date.
5. Release of Claims. Employee agrees that the foregoing consideration
represents settlement in full of all outstanding obligations owed to Employee by
the Company and its affiliates, officers, managers, supervisors, agents and
employees. Employee, on his own behalf, and on behalf of his respective heirs,
family members, executors, agents, and assigns, hereby fully and forever
releases the Company and its officers, directors, employees, agents, investors,
shareholders, administrators, affiliates, divisions, subsidiaries, predecessor
and successor corporations, and assigns, and the Company hereby fully and
forever releases Employee (collectively "the Released parties") from any duty,
obligation or cause of action relating to any matters of any kind, whether
presently known or unknown, suspected or unsuspected, that Employee or Company
may possess arising from any omissions, acts or facts that have occurred up
until and including the Effective Date of this Agreement. Claims released
hereunder include, without limitation, claims relating to Employee's employment
and the termination of employment; claims relating to, or arising from, wrongful
or constructive termination; claims relating to the right to purchase, or actual
purchase of shares of stock of the Company; claims relating to fraud,
misrepresentation, breach of duty, securities claims; breach of contract,
infliction of emotional distress, misrepresentation, unfair business practices,
defamation, libel, slander, negligence, personal injury, and any other tortuous
conduct claims; claims for violation of any federal, state or municipal statute,
including, but not limited to, Title VII of the Civil Rights Act of 1964, the
Civil Rights Act of 1991, the Age Discrimination in Employment Act of 1967, the
Americans with Disabilities Act of 1990, the Fair Labor Standards Act, the
Employee Retirement Income Security Act of 1974, The Worker Adjustment and
Retraining Notification Act, the Older Workers Benefit Protection Act, the
Family and Medical Leave Act, the California Family Rights Act, the California
Fair Employment and Housing Act, and the California Labor Code. Nothing herein
releases the parties' obligations under this Agreement and the Confidentiality
Agreement.
-2-
6. Complete Release. The Company and Employee agree that the release set
forth in this section shall be and remain in effect in all respects as a
complete general release. This release does not extend to any obligations
incurred under this Agreement.
7. Release of Claims Under ADEA. Employee hereby releases and waives any
rights or claims he may have under the Age Discrimination in Employment Act of
1967 ("ADEA"). Employee represents that this waiver and release is knowing and
voluntary. Employee acknowledges that the consideration given for this waiver
and release is in addition to anything of value to which Employee was already
entitled. Employee further acknowledges that he is hereby advised by this
writing that
(a) he should consult with an attorney prior to executing this
Agreement;
(b) he has up to twenty-one (21) days within which to consider this
Agreement;
(c) he has seven (7) days following his/her execution of this
Agreement to revoke the Agreement;
(d) this Agreement shall not be effective until the revocation period
has expired; and
(e) nothing in this Agreement prevents or precludes Employee from
challenging or seeking a determination in good faith of the validity of this
waiver under the ADEA, nor does it impose any condition precedent, penalties or
costs from doing so, unless specifically authorized by federal law.
8. Civil Code Section 1542. the Parties represent that they are not aware
of any claim other than the claims that are released by this Agreement. The
parties acknowledge that they have had the opportunity to be advised by legal
counsel and are familiar with the provisions of California Civil Code Section
1542, which provides as follows:
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, being aware of said code section, agree to expressly waive any
rights they may have thereunder, as well as under any other statute or common
law principles of similar effect.
9. No Pending or Future Lawsuits/Covenant not to Xxx. The parties represent
that they have no lawsuits, claims, or actions pending in their name, or on
behalf of any other person or entity, against the Released Parties. The parties
also represent and agree that they do not intend to bring, and will not bring,
any claims on their own behalf or on behalf of any other person or entity
against the Released Parties, whether in court, in an administrative hearing or
otherwise.
-3-
10. No Cooperation/disparagement. Employee agrees he will not act in any
manner that might damage the business of the Company, including, without
limitation, making any disparaging or untrue statements regarding the Released
Parties. Employee agrees that he will not encourage, counsel or assist any
attorneys or their clients in the presentation or prosecution of any disputes,
differences, grievances, claims, charges, or complaints by any third party
against any of the Released Parties, unless under a subpoena or other court
order to do so. Employee shall inform the Company in writing within three (3)
days of receiving any such subpoena or other court order.
11. Non-Solicitation. Employee agrees that for a period of twelve (12)
months immediately following the Effective Date of this Agreement, Employee
shall not either directly or indirectly solicit, induce, recruit or encourage
any of the Company or its affiliates' employees or consultants to leave their
employment, or attempt to do so, either for himself or any other person or
entity.
12. Non-Competition.
(a) Restrictions. For so long as Employee is receiving benefits
pursuant to section 2, above, Employee shall not, directly or indirectly:
(i) be employed by, engaged in or participate in the ownership,
management, operation or control of, or act in any advisory or
other capacity (including as an individual, principal, agent,
employee, consultant or otherwise) for, any Competing Entity which
conducts its business within the Territory (as the terms Competing
Entity and Territory are hereinafter defined); provided, however,
that notwithstanding any of the foregoing, Employee may make
solely passive investments in any Competing Entity the common
stock of which is "publicly held" and of which Employee shall not
own or control, directly or indirectly, in the aggregate
securities which constitute 5% or more of the voting power of such
Competing Entity;
(ii) solicit or divert any business or any customer or known
prospective customer from the Company or assist any person or
entity in doing so or attempting to do so;
(iii) cause or seek to cause any person or entity to refrain from
dealing or doing business with the Company or assist any person or
entity in doing so; or
(iv) solicit for employment, or advise or recommend to any other
person or entity that he, she or it employ or solicit for
employment or retention as an employee or consultant, any person
who is an employee of, or exclusive consultant to, the Company.
-4-
In the event Employee violates any of the foregoing restrictions, all
payments or benefits being provided pursuant to Sections 2, above, shall
immediately cease, in addition to all other rights and remedies to which Company
may be entitled by law for a violation of this Section 12.
(b) Definitions. For purposes of this Section 12:
(i) "Competing Entity" means any entity which is presently or
hereafter engaged in any business of the type or character engaged
in by the Company or any of its subsidiaries including, without
limitation, (A) the business of developing, marketing or selling
software programs which use molecular simulation or analysis to
predict chemical or biological activities; (B) the business of
developing, marketing or selling software programs that store,
manage or analyze chemical or biological information or (C) any
business which is otherwise competitive with a business conducted
by the Company or any of its subsidiaries; and (ii) "Territory"
means North America, Europe and Japan.
(c) Acknowledgement. Employee acknowledges and agrees that the
covenants set forth in this Section 12 are reasonable and necessary in all
respects for the protection of the Company's legitimate business interests
(including without limitation the Company's confidential, proprietary
information and trade secrets and client good-will, which represents a
significant portion of the Company's net worth and in which the Company has a
property interest). Employee acknowledges and agrees that, in the event that
Employee breaches any of the covenants set forth in this Section 12, the Company
shall be irreparably harmed and shall not have an adequate remedy at law; and,
therefore, in the event of such a breach, the Company shall be entitled to
injunctive relief, in addition to (and not exclusive of) any other remedies
(including monetary damages) to which the Company may be entitled under law. If
any covenant set forth in this Section 12 is deemed invalid or unenforceable for
any reason, it is the parties' intention that such covenants be equitably
reformed or modified to the extent necessary (and only to such extent to) render
it valid and enforceable in all respects. In the event that the time period and
geographic scope referenced above is deemed unreasonable, overbroad, or
otherwise invalid, it is the parties' intention that the enforcing court shall
reduce or modify the time period and/or geographic scope to the extent necessary
(and only to such extent necessary) to render such covenants reasonable, valid
and enforceable in all respects.
13. Breach. Employee acknowledges and agrees that any breach of any
provision of this Agreement shall constitute a material breach of this Agreement
and shall entitle the Company immediately to recover the severance benefits
provided to Employee under this Agreement.
14. No Admission of Liability. The Parties understand and acknowledge that
this Agreement constitutes a compromise and settlement of actual or potential
disputed claims. No action taken by the Parties hereto shall be deemed or
construed to be an admission of any fault or liability whatsoever to the other
party or to any third party.
-5-
15. Costs. The Parties shall each bear their own costs, expert fees,
attorneys' fees and other fees incurred in connection with this Agreement,
except as provided herein.
16. Arbitration. The Parties agree that any and all disputes arising out of
the terms of this Agreement, their interpretation, and any of the matters herein
released, shall be subject to binding arbitration in San Diego County before the
American Arbitration Association under its National Rules for the Resolution of
Employment Disputes, supplemented by the California Code of Civil Procedure. The
Parties agree that the prevailing party in any arbitration shall be entitled to
injunctive relief in any court of competent jurisdiction to enforce the
arbitration award. The Parties agree that the prevailing party in any
arbitration shall be awarded its reasonable attorneys' fees and costs. The
Parties hereby agree to waive their right to have any dispute between them
resolved in a court of law by a judge or jury. This paragraph will not prevent
either party from seeking injunctive relief (or any other provisional remedy)
from any court having jurisdiction over the Parties and the subject matter of
their dispute relating to Employee's obligations under this Agreement and the
Confidentiality Agreement.
17. Authority. Each party represents and warrants that it has the authority
to act to enter into and effectuate the terms of this Agreement.
18. No Representations. Each party represents that it has had the
opportunity to consult with an attorney, and has carefully read and understands
the scope and effect of the provisions of this Agreement. In entering into this
Agreement, neither party has relied upon any representations or statements made
by the other party hereto which are not specifically set forth in this
Agreement.
19. Severability. In the event that any provision, or any portion thereof,
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision or portion of said provision.
20. Entire Agreement. This Agreement represents the entire agreement and
understanding between the Company and Employee concerning the subject matter of
this Agreement and Employee's relationship with the Company, and supersedes and
replaces any and all prior agreements and understandings between the Parties
concerning the subject matter hereof, with the exception of the terms of the
Confidentiality Agreement.
21. No Waiver. The failure of either party to insist upon the performance
of any of the terms and conditions in this Agreement, or the failure to
prosecute any breach of any of the terms and conditions of this Agreement, shall
not be construed as a subsequent waiver of any such terms or conditions. This
entire Agreement shall remain in full force and effect as if no such forbearance
or failure of performance had occurred.
22. No Oral Modification. This Agreement may only be amended in a writing
signed by Employee and the Chief Executive Officer of the Company.
-6-
23. Governing Law. This Agreement shall be construed, interpreted,
governed, and enforced in accordance with the laws of the State of California,
without regard to choice-of-law provisions. Employee hereby consents to personal
and exclusive jurisdiction and venue in the State of California.
24. Counterparts. This Agreement may be executed in counterparts, and each
counterpart shall have the same force and effect as an original and shall
constitute an effective, binding agreement on the part of each of the
undersigned.
25. Taxes. Employee will be responsible for the payment of any tax
liability incurred as a result of this Agreement, including, without limitation,
any taxes and penalties that may arise under Section 409A of the Internal
Revenue Code.
26. Voluntary Execution. This Agreement is executed voluntarily and without
any duress or undue influence on the part or behalf of the Parties hereto, with
the full intent of releasing all claims. The Parties acknowledge that; they have
read this Agreement; they have been represented in the preparation, negotiation,
and execution of this Agreement by legal counsel of their own choice or that
have voluntarily declined to seek such counsel; they understand the terms and
consequences of this Agreement and of the releases therein; and they are fully
aware of the legal and binding effect of this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement on the
respective dates set forth below.
ACCELRYS, INC.
Dated: 10/4/2005 By: /s/ Xxxx Xxxxxx
----------------------------- ------------------------------
Xxxx Xxxxxx
Chief Executive Officer
Xxxxxx Xxxxxxxxxxxxx, an individual
Dated: 10/4/2005 /s/ Xxxxxx Xxxxxxxxxxxxx
----------------------------- -----------------------------------
Xxxxxx Xxxxxxxxxxxxx
-7-
