Exhibit 10.2.1
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EMPLOYMENT SEPARATION/CONSULTING AGREEMENT
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AND GENERAL RELEASE
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THIS EMPLOYMENT SEPARATION/CONSULTING AGREEMENT AND GENERAL RELEASE
(hereinafter "AGREEMENT") is made and entered into by and between Xxxxxxx X.
Xxxxx (hereinafter "XXXXX") and Synbiotics Corporation (hereinafter "SYNBIOTICS"
or the "Company"), effective as of April 2, 2001, and inures to the benefit of
each of SYNBIOTICS' current, former and future parents, subsidiaries, related
entities, employee benefit plans and their fiduciaries, predecessors,
successors, officers, directors, shareholders, agents, employees and assigns.
RECITALS
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X. XXXXX has been through April 2, 2001 SYNBIOTICS' President and Chief
Executive Officer and a member of SYNBIOTICS' Board of Directors.
B. Notwithstanding and in addition to any other written resignations, by
executing this AGREEMENT, XXXXX resigns from his employment with and from all
his positions as a director, officer and employee of SYNBIOTICS and its
subsidiary Synbiotics Europe SAS effective April 2, 2001.
C. As of April 2, 2001, XXXXX held options under SYNBIOTICS' 1995 Stock
Option/ Stock Issuance Plan (the "Plan") to purchase shares of SYNBIOTICS'
common stock (the "Options"). As of April 2, 2001, XXXXX had acquired vested
interests in 266,875 of such Options (the "Vested Options"), and had not yet
acquired vested rights in 133,125 of such Options (the "Unvested Options").
D. SYNBIOTICS wishes to retain XXXXX as a consultant to the Company
beginning April 4, 2001, and XXXXX wishes to provide personal services to the
Company in return for certain compensation and benefits, as more specifically
identified herein.
THEREFORE, in consideration of the mutual promises and covenants contained
herein, it is hereby agreed by and between XXXXX, on the one hand, and
SYNBIOTICS, on the other, as follows:
1. Incorporation of Recitals. The Recitals and identification of the
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parties to, and beneficiaries of, this AGREEMENT are incorporated by reference
as though fully set forth herein.
2. Compensation for Employment. SYNBIOTICS agrees to pay to XXXXX all of
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his wages (other than his accrued and unused vacation time) accrued through
April 2, 2001 by no later April 4, 2001. The parties agree that this amount is
$2,243.68, before applicable tax withholding. SYNBIOTICS agrees to pay XXXXX all
of his accrued and unused vacation time through April 2, 2001, which the parties
agree amounts to 299.98 hours, at $140.23 per hour, as follows:
$12,153.33 (before applicable withholding) on April 16, 2001;
$12,153.33 (before applicable withholding) on May 1, 2001; and
$17,759.54 (before applicable withholding) on May 16, 2001.
Except as expressly provided in this Section 2, XXXXX hereby waives and
renounces any and all other amounts which are or may become due to him under
SYNBIOTICS' Management Retention Plan, as amended, or any other "stay bonus"
plan, and under his Employee Agreement dated May 7, 1996 (including the
severance provisions thereof), and under any other written or oral compensation
arrangement.
XXXXX acknowledges that effective upon his employment termination he
will be unable to continue his participation in SYNBIOTICS' 401(k) plan, Section
125 cafeteria plan, or, except as allowed by COBRA, any other SYNBIOTICS
perquisite, employee benefit plan or fringe benefit plan.
The parties acknowledge and agree that upon execution and delivery of
this AGREEMENT all of the Unvested Options shall terminate immediately and never
vest. The parties further agree that the Vested Options shall remain exercisable
only for so long after the April 2, 2001 cessation of service as is provided for
by the terms of the Vested Options documentation (i.e., 30 days).
3. COBRA Benefits. XXXXX acknowledges that he has been provided with
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forms by which he may maintain his and his eligible dependents' participation in
SYNBIOTICS' group medical and dental insurance plans pursuant to the terms of
the Consolidated Omnibus Budget Reconciliation Act ("COBRA"). SYNBIOTICS agrees
that if XXXXX timely elects to continue his and his eligible dependents'
participation in the Company's group medical and dental insurance plans pursuant
to COBRA, the Company will pay the employer portion of the COBRA premiums
therefor on behalf of XXXXX and his eligible dependents, until April 2, 2002.
Nothing herein shall limit the right of SYNBIOTICS to change the provider and/or
the terms of its group medical and/or dental insurance plan at any time
hereafter.
4. No Employment Agreement. The parties acknowledge and agree that
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this AGREEMENT is not an employment agreement, that the employment relationship
between the parties has terminated, and that all prior agreements concerning
employment and/or consultancy, whether oral or written, are superseded by this
AGREEMENT.
5. Consulting Agreement.
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5.1 Term. Subject to its rights to terminate this AGREEMENT
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earlier pursuant to the termination provisions contained in Section 8 hereof,
SYNBIOTICS agrees that commencing upon April 4, 2001, and continuing through
March 15, 2002, it shall retain XXXXX as an independent contractor consultant
(the "Consulting Period"). XXXXX agrees to assist SYNBIOTICS as an independent
contractor consultant during the Consulting Period.
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5.2 Compensation. During the Consulting Period, SYNBIOTICS shall
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pay to XXXXX for his consulting services the gross sum of $1 for the period from
April 4, 2001 through May 16, 2001, and thereafter at the rate of $24,961.76 per
full month for the remaining duration of the Consulting Period. The consulting
fee shall be due and payable to XXXXX in arrears semimonthly.
5.3 Duties. During the Consulting Period, XXXXX agrees to make
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himself available to provide oral or written advice and input on SYNBIOTICS
business matters, as may be requested of him from time to time by the President
and Chief Executive Officer and/or the Company's Board of Directors. XXXXX shall
report only to the President and Chief Executive Officer and/or the Chair of the
Company's Board of Directors, and shall communicate only with such persons,
unless specifically directed otherwise by the President/CEO and/or Chair. XXXXX
shall comply with all applicable laws in the course of his work. All works of
authorship made by XXXXX in the course of his duties shall be "works made for
hire." XXXXX agrees that SYNBIOTICS shall own the copyright on such works of
authorship with no license back to XXXXX, and that SYNBIOTICS shall own the
patent rights on all inventions made by XXXXX in the course of his duties (again
with no license back to XXXXX). XXXXX shall provide all reasonable assistance to
SYNBIOTICS in evidencing and prosecuting SYNBIOTICS' copyright and patent rights
in such works of authorship and inventions.
5.4 Time Commitment. During the Consulting Period, XXXXX shall
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make himself available to SYNBIOTICS to perform consulting duties on a
reasonable, part-time, as-needed basis as requested by the Company. SYNBIOTICS
agrees to provide XXXXX with reasonable advance notice of its need for his
services. XXXXX agrees to provide the Company with at least one week's advance
notice of any vacation or other planned absence in which XXXXX will be
unavailable to render consulting services for the Company. SYNBIOTICS and XXXXX
shall use reasonable efforts to coordinate any scheduling conflicts between
XXXXX'x other activities and engagements and the services to be performed by
XXXXX for SYNBIOTICS.
5.5 Independent Contractor. XXXXX acknowledges that he is an
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independent contractor, is not an agent or employee of the Company, is not
entitled to any Company employment rights or benefits and is not authorized to
act on behalf of the Company. XXXXX shall be solely responsible for any and all
tax obligations of XXXXX, including but not limited to, all city, state and
federal income taxes, social security withholding tax and other self employment
tax incurred by XXXXX, and for providing workers' compensation insurance. In the
event that any taxing authority seeks to collect taxes, interest and/or
penalties from SYNBIOTICS on the consulting compensation paid to XXXXX under
this AGREEMENT, XXXXX will hold SYNBIOTICS harmless from any and all claims for
such taxes, interest and/or penalties and will indemnify SYNBIOTICS against any
such claims. SYNBIOTICS shall not dictate the work hours of XXXXX during the
term of this AGREEMENT. The parties hereby acknowledge and agree that SYNBIOTICS
shall have no right to control the manner, means, or method by which XXXXX
performs the services called for by this AGREEMENT. Rather, SYNBIOTICS shall be
entitled only to direct XXXXX with respect to the elements of services to be
performed by XXXXX and the results to be derived by SYNBIOTICS, to inform XXXXX
as to where and when such services shall be performed, to limit and identify the
persons at SYNBIOTICS with whom XXXXX may communicate, and to review and assess
the
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performance of such services by XXXXX for the purposes of assuring that such
services have been performed and confirming that such results were satisfactory.
SYNBIOTICS shall be entitled to exercise broad general power of supervision and
control over the results of work performed by XXXXX to ensure satisfactory
performance, including the right to inspect, the right to stop work, the right
to make suggestions or recommendations as to the details of the work, and the
right to propose modifications to the work.
5.6 No Agency Relationship. Nothing herein shall be deemed to
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create an agency relationship between the parties hereto. XXXXX understands and
agrees that, except as specifically and in writing directed to do so by the
President and Chief Executive Officer and/or the Company's Board of Directors,
he is not authorized to bind or to act on behalf of SYNBIOTICS, and he agrees
not to purport otherwise.
5.7 Business Expenses. It is expressly understood and agreed
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that during the Consulting Period, XXXXX shall not incur any business expenses
without the prior approval of the President and Chief Executive Officer and/or
the Board of Directors of the Company. To the extent such business expenses have
been approved in advance, SYNBIOTICS shall reimburse XXXXX for reasonable
business expenses incurred by him as a necessary consequence of his performance
of his consulting duties on SYNBIOTICS' behalf. XXXXX shall submit written
requests for reimbursement of said business expenses, together with supporting
receipts, on or before the last day of each month of the Consulting Period.
Reimbursement of XXXXX'x business expenses shall be paid in the time and manner
which are consistent with the Company's policy concerning employee/consultant
business expenses.
5.8 Outside Activities. Except as prohibited by the provisions
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of Section 7, below, it is expressly understood and agreed that during the
Consulting Period, XXXXX may accept other employment. XXXXX may also engage in
civic and not-for-profit activities, except as limited by the provisions of
Section 7.
6. Proprietary Information Obligations
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6.1 Agreement. XXXXX acknowledges that he is a party to and
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bound by the terms and conditions of that certain confidentiality Agreement by
and between SYNBIOTICS and him dated May 17, 1996 (the "Proprietary Information
Agreement").
6.2 Remedies. XXXXX understands that his duties under the
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Proprietary Information Agreement survive the termination of his employment with
SYNBIOTICS and continue to remain in effect during his consultancy to the
Company, and will survive the expiration or termination of this AGREEMENT. XXXXX
acknowledges that a remedy at law for any breach or threatened breach by him of
the provisions of the Proprietary Information Agreement would be inadequate, and
he therefore agrees that the Company shall be entitled to injunctive relief in
case of any such breach or threatened breach.
7. Trade Secrets and Confidential Information/Non-Competition.
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7.1 Valuable Confidential Information. XXXXX acknowledges that
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SYNBIOTICS has invested substantial time, money and resources in the development
and retention of its inventions, confidential information (including trade
secrets), customers, accounts
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and business partners, and further acknowledges that during the course of his
employment with the Company XXXXX had access to the Company's inventions and
confidential information (including trade secrets), and was introduced to
existing and prospective customers, accounts and business partners of the
Company. The parties acknowledge that in connection with XXXXX'x provision of
consulting services to SYNBIOTICS, he may continue to have access to the
Company's inventions and confidential information (including trade secrets).
XXXXX acknowledges and agrees that any and all "goodwill" associated with any
existing or prospective customer, account or business partner belongs
exclusively to SYNBIOTICS, including, but not limited to, any goodwill created
as a result of direct or indirect contacts or relationships between XXXXX and
any existing or prospective customers, accounts or business partners.
7.2 No Competition During Consulting Period. During the
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Consulting Period, XXXXX agrees that he will not, directly or indirectly,
whether as an officer, director, stockholder, partner, proprietor, associate,
representative, consultant, or in any capacity whatsoever engage in, become
financially interested in, be employed by, provide services to, or have any
business connection with, any other person, corporation, firm, partnership or
other entity whatsoever which competes directly or indirectly with the Company
throughout the world, in any line of business now engaged in (or planned to be
engaged in) by the Company. XXXXX agrees that if he is proposing an affiliation
of any sort with any other person, corporation, firm, partnership or other
entity which might reasonably be considered to compete with SYNBIOTICS, he shall
notify SYNBIOTICS in writing so that a determination may be made as to whether
such person, corporation, firm, partnership or other entity competes directly or
indirectly with SYNBIOTICS. Any such determination will be made by the Board of
Directors of SYNBIOTICS in good faith. However, notwithstanding anything above
to the contrary, XXXXX may own, as a passive investor, securities of any
publicly traded competitor corporation, so long as his direct holdings in any
one such corporation shall not in the aggregate constitute more than 1% of the
voting stock of such corporation.
7.3 Non-Solicitation. During the Consulting Period, XXXXX agrees
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not to interfere with the business of the Company by soliciting, inducing, or
otherwise causing (i) any employee or consultant of the Company to terminate his
or her employment or engagement with the Company, or to reduce his or her time
commitment or scope of services provided to the Company, or (ii) any customer or
client of the Company to purchase or obtain the products or services of any firm
or business organization which competes with the Company. The foregoing
restrictions shall apply to XXXXX regardless of whether he is acting directly or
indirectly, alone or in concert with others. XXXXX understands and agrees that
he cannot and will not do indirectly that which he cannot do directly.
7.4 Non-Competitive Board Service. During the Consulting Period,
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XXXXX may serve as a member of the board of directors of any other unaffiliated
company that is not in competition with SYNBIOTICS, provided that such service
does not interfere with the performance of his duties or responsibilities under
this or any other agreement between him and SYNBIOTICS. XXXXX'x service as a
member of the board of directors of any other company which might reasonably be
considered to compete with SYNBIOTICS shall be subject in every case to the
approval of the Board of Directors of SYNBIOTICS, which approval shall not be
unreasonably withheld.
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7.5 Savings Clause. If any restriction set forth above within this
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section is held to be unreasonable, then XXXXX agrees, and hereby submits, to
the reduction and limitation of such prohibition to such area or period as shall
be deemed reasonable. XXXXX agrees that during the Consulting Period, he will
not engage in any employment, business, or activity that is in any way
competitive with the business or proposed business of the Company, and he will
not assist any other person or organization in competing with SYNBIOTICS or in
preparing to engage in competition with the business or proposed business of
SYNBIOTICS.
7.6 Injunctive Relief. XXXXX expressly agrees that the covenants set
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forth in this Section 7 are reasonable and necessary to protect the Company and
its legitimate business interests, and to prevent the unauthorized dissemination
of confidential information to competitors of the Company. XXXXX also agrees
that the Company will be irreparably harmed and that damages alone cannot
adequately compensate the Company if there is a violation of the provisions of
this Section 7 by XXXXX, and that injunctive relief against XXXXX is essential
for the protection of the Company. Therefore, in the event of any such breach,
it is agreed that, in addition to any other remedies available, SYNBIOTICS shall
be entitled as a matter of right to injunctive relief in any court of competent
jurisdiction, plus attorneys' fees actually incurred for the securing of such
relief.
8. Termination Provisions. In the event that SYNBIOTICS terminates
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XXXXX'x services for cause, as defined hereafter, XXXXX'x consulting
compensation shall cease immediately. A termination by SYNBIOTICS "for cause"
shall mean a termination based on the Board's good faith and reasonable belief
that one or more of the following has occurred:
(i) XXXXX'x indictment for or conviction of any felony or of any
crime involving dishonesty or moral turpitude.
(ii) XXXXX'x participation in any fraud against SYNBIOTICS or its
investors.
(iii) XXXXX'x breach of any obligations or duties owed to the
Company, whether arising under this AGREEMENT or any other binding agreement,
including but not limited to the Proprietary Information Agreement. If XXXXX'x
breach is curable, it is agreed that the Company will provide XXXXX with written
notice of said breach, and seven (7) business days within which to cure said
breach.
(iv) XXXXX'x unauthorized disclosure or use of Company
proprietary or confidential information. It is expressly understood and agreed
by the parties that an unauthorized disclosure or use of Company proprietary or
confidential information shall not be considered a "curable breach", as
described in subsection (iii) above.
(v) XXXXX'x violation of any of the non-competition provisions
of this AGREEMENT. It is expressly understood and agreed by the parties that any
violation of the non-competition provisions of this AGREEMENT shall not be
considered a "curable breach", as described in subsection (iii) above.
(vi) XXXXX'x failure to make himself available at the Company's
reasonable request to provide consulting services hereunder.
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(vii) XXXXX'x intentional, reckless or grossly negligent action
materially detrimental to the best interest of SYNBIOTICS.
9. General Release.
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9.1 General Release. XXXXX for himself, and his relatives, heirs,
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executors, administrators, assigns and successors, fully and forever releases
and discharges SYNBIOTICS and each of its current, former and future parents,
subsidiaries, related entities, employee benefit plans and its and their
fiduciaries, predecessors, successors, officers, directors, shareholders,
agents, employees and assigns (collectively, "Releasees"), with respect to any
and all claims, liabilities, causes of action, suits, debts, contracts,
agreements, promises, demands, losses, settlements, diminutions in value,
judgments, damages, penalties, costs and expenses (including, without
limitation, attorneys' fees) of every nature, kind and description, in law,
equity or otherwise (collectively, "Claims"), which have arisen, occurred or
existed at any time before the signing of this AGREEMENT, including, without
limitation, any and all Claims arising out of or relating to XXXXX'x employment
with SYNBIOTICS or the cessation of that employment or his Employment Agreement;
provided, however, that XXXXX'x Vested Options (as amended by Section 2), Claims
under his Indemnification Agreement and the Proprietary Information Agreement,
and enforcement of this AGREEMENT are not released.
9.2 Knowing Waiver of Employment Related Claims. XXXXX understands and
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agrees that, without limitation, he is waiving and releasing any and all rights
he may have had, now has, or in the future may have, to pursue against any of
the Releasees any and all remedies available to him under any employment-related
Claims and causes of action, including without limitation, claims of wrongful
discharge, breach of contract, breach of the covenant of good faith and fair
dealing, fraud, violation of public policy, defamation, discrimination, personal
injury, physical injury, emotional distress, claims under Title VII of the Civil
Rights Act of 1964, as amended, the Age Discrimination in Employment Act, the
Americans With Disabilities Act, the Federal Rehabilitation Act, the Family and
Medical Leave Act, the California Fair Employment and Housing Act, the
California Family Rights Act, the Equal Pay Act of 1963, the provisions of the
California Labor Code and any other federal, state or local laws and regulations
relating to employment, conditions of employment (including wage and hour laws)
and/or employment discrimination.
9.3 Waiver of Civil Code (S). 1542. XXXXX expressly waives any and all
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rights and benefits conferred upon him by Section 1542 of the Civil Code of the
State of California, which states as follows, and under all federal, state
and/or common-law statutes or principles of similar effect:
"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."
XXXXX expressly agrees and understands that the release given by him pursuant to
this AGREEMENT applies to all unknown, unsuspected and unanticipated Claims
which XXXXX may have against SYNBIOTICS or any of the other Releasees.
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9.4 No Prior Assignments. XXXXX represents and warrants that there has
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been no assignment or other transfer of any interest in any Claim which XXXXX
may have against SYNBIOTICS or any of the other Releasees, or any of them, and
XXXXX agrees to defend, indemnify and hold SYNBIOTICS and the other Releasees,
and each of them, harmless from any liability, claims, demands, damages,
settlements, judgments, penalties, costs, expenses and attorneys' fees incurred
by SYNBIOTICS or any of the other Releasees, or any of them, as a result of any
person asserting any such assignment or transfer. It is the intention of the
parties that this indemnity does not require payment as a condition precedent to
recovery by SYNBIOTICS and the other Releasees under the indemnity, and that
this indemnity shall be payable as incurred and on demand.
9.5 Denial of Liability and Obligation. This AGREEMENT is not intended
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to and shall not constitute any admission or concession of any kind by
SYNBIOTICS or any other person as to the existence of any liability or
obligation to XXXXX under any Claim. SYNBIOTICS and the other Releasees
specifically deny the existence of any such liability or obligation to XXXXX.
10. Promise to Refrain from Suit or Administrative Action. XXXXX promises
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and agrees that he will never xxx SYNBIOTICS or any of the other Releasees, or
otherwise institute or participate in any legal or administrative proceedings
against SYNBIOTICS or any of the other Releasees (or aid anyone else to do so),
with respect to any Claim covered by the release provisions of this AGREEMENT.
XXXXX agrees that if XXXXX violates this Section 10 in any manner or in any
manner asserts again SYNBIOTICS or any of the other Releasees, or any of them,
any of the Claims released hereunder, then XXXXX will pay to SYNBIOTICS and the
other Releasees, and each of them, in addition to any other damages caused to
SYNBIOTICS and the other Releasees thereby, all attorneys' fees incurred by
SYNBIOTICS and the other Releasees in defending or otherwise responding to said
Claim.
11. Full Defense. It is specifically understood and agreed that this
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AGREEMENT may be pleaded as a full and complete defense to and may be used as
the basis for an injunction against any action, arbitration, suit, or other
proceeding which may be instituted, prosecuted or attempted in breach of this
AGREEMENT.
12. Assumption of Risk as to Facts. The parties both understand that if the
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facts with respect to which they are executing this AGREEMENT are later found to
be other than or different from the facts both or either of them now believe to
be true, they expressly accept and assume the risk of such possible difference
in fact and agree that this AGREEMENT shall remain effective despite any
difference of fact.
13. No Outside Representations. No representation, warranty, condition,
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promise, understanding or agreement of any kind with respect to the subject
matter hereof has been made by either party or by anyone else, nor shall any
such be relied upon by either party, except those contained herein. There were
no inducements to enter into this AGREEMENT, except for what is expressly set
forth in this AGREEMENT.
14. Severability of Release Provisions. All provisions contained herein are
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severable and in the event that any of them shall be held to be to any extent
invalid or otherwise
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unenforceable by any court of competent jurisdiction, such provision shall be
construed as if it were written so as to effectuate to the greatest possible
extent the parties' expressed intent; and in every case the remainder of this
AGREEMENT shall not be affected thereby and shall remain valid and enforceable,
as if such affected provision were not contained herein.
15. Integrated Agreement. The parties acknowledge and agree that no
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promises or representations were made to them concerning the subject matter of
this AGREEMENT which do not appear written herein and that this AGREEMENT
contains the entire agreement of the parties on the subject matter hereof and
supersedes any and all prior or contemporaneous oral and written negotiations,
agreements, promises, commitments and understandings; provided, that the
Proprietary Information Agreement and the Indemnification Agreement are in no
way superseded. The parties further acknowledge and agree that parol evidence
shall not be required to interpret the intent of the parties.
16. Voluntary Execution. The parties hereby acknowledge that they have read
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and understand this AGREEMENT and that they sign this AGREEMENT voluntarily and
without coercion.
17. Waiver, Amendment and Modification of AGREEMENT. The parties agree that
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no waiver, amendment or modification of any of the terms of this AGREEMENT shall
be effective unless in writing and signed by all parties affected by the waiver,
amendment or modification. No waiver of any term, condition or default of any
term of this AGREEMENT shall operate or be construed as a waiver of any
preceding or succeeding breach of the same or any other term or provision, or a
waiver of any contemporaneous breach of any other term or provision, or a
continuing waiver of the same or any other term or provision. No failure or
delay by a party in exercising any right, power, or privilege hereunder or other
conduct by a party shall operate as a waiver thereof, in the particular case or
in any past or future case, and no single or partial exercise thereof shall
preclude the full exercise or further exercise of any right, power, or
privilege. No action taken pursuant to this AGREEMENT shall be deemed to
constitute a waiver by the party taking such action of compliance with any
representations, warranties, covenants or agreements contained herein.
18. Representation by Counsel. The parties acknowledge that they have the
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right to have been represented in by counsel of their own choosing, and that
they have entered into this AGREEMENT voluntarily, without coercion, and based
upon their own judgment and not in reliance upon any representations or promises
made by the other party or parties or any undersigned attorneys, other than
those contained within this AGREEMENT. The parties further agree that if any of
the facts or matters upon which they now rely in making this AGREEMENT hereafter
prove to be otherwise, this AGREEMENT will nonetheless remain in full force and
effect. XXXXX acknowledges that Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP, SYNBIOTICS'
lawyers, has represented SYNBIOTICS only and has not represented or advised him
in connection with this AGREEMENT.
19. California Law. The parties agree that this AGREEMENT and its terms
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shall be construed under California law.
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20. Agreement to Arbitrate Claims Arising from AGREEMENT. The parties agree
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that with the exception of disputes and claims identified below, if any dispute
arises concerning interpretation and/or enforcement of the terms of this
AGREEMENT, said dispute shall be resolved by binding arbitration conducted
before a single arbitrator in San Diego, California in accordance with the
American Arbitration Association's National Rules for the Resolution of
Employment Disputes, effective June 1, 1997 and in accordance with the
guidelines delineated by the California Supreme Court in Xxxxxxxxxx v.
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Foundation Health Psychcare Services, Inc. (2000). Notwithstanding this
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agreement to arbitrate, neither party shall be precluded from seeking injunctive
relief in a judicial forum.
21. Drafting. The parties agree that this AGREEMENT shall be construed
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without regard to the drafter of the same and shall be construed as though each
party to this AGREEMENT participated equally in the preparation and drafting of
this AGREEMENT.
22. Counterparts. This AGREEMENT may be signed in counterparts and said
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counterparts shall be treated as though signed as one document.
23. Return of Company Property. XXXXX has returned to SYNBIOTICS his
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Company credit card. It is understood and agreed that XXXXX shall return all
other property in his possession which belongs to or was leased to SYNBIOTICS
(or leased to him on SYNBIOTICS' account) immediately upon demand therefor.
XXXXX specifically promises and agrees that he shall not retain copies of any
company documents or files.
24. Period to Consider Terms of AGREEMENT. XXXXX acknowledges that this
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AGREEMENT was first presented to him on March 30, 2001, that the terms of this
AGREEMENT have been negotiated by both parties, and that he is entitled to have
21 days' time in which to consider the AGREEMENT. XXXXX acknowledges that he
understands that he has the right to obtain the advice and counsel from the
legal representative of his choice, and that he executes this AGREEMENT having
had sufficient time within which to consider its terms. XXXXX represents that if
he executes this AGREEMENT before 21 days have elapsed, he does so voluntarily,
and that he voluntarily waives any remaining consideration period.
25. Revocation of AGREEMENT. XXXXX understands that after executing this
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AGREEMENT, he has the right to revoke it within seven (7) days after his
execution of it. XXXXX understands that this AGREEMENT will not become effective
and enforceable unless the seven day revocation period passes and XXXXX does not
revoke the AGREEMENT in writing. XXXXX understands that this AGREEMENT may not
be revoked after the seven day revocation period has passed. XXXXX understands
that any revocation of this AGREEMENT
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must be made in writing and delivered to SYNBIOTICS within the seven day period,
and that if he does so revoke the AGREEMENT, he shall not be entitled to receive
any of the benefits described herein.
26. Effective Date. This AGREEMENT shall become effective (as of April 2,
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2001) on the eighth (8th) day after execution by XXXXX, so long as XXXXX has not
revoked it within the time and in the manner specified in Section 25 of this
AGREEMENT.
Dated: April 2, 2001 /s/ Xxxxxxx X. Xxxxx
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XXXXXXX X. XXXXX
SYNBIOTICS CORPORATION
Dated: April 2, 2001 By /s/ Xxxx X. Rosinack
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Xxxx X. Rosinack
President
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