EXHIBIT 99.2
SEPARATION AGREEMENT AND RELEASE
RECITALS
This Separation Agreement and Release ("Agreement") is made by and
between Walid Maghribi ("Employee") and Sipex Corporation (the "Company")
(jointly referred to as the "Parties"):
WHEREAS, Employee was employed by the Company;
WHEREAS, the Company and Employee entered into a Confidential
Information Agreement (the "Confidentiality Agreement");
WHEREAS, Employee resigned as President and Chief Executive Officer of
the Company and from the Board of Directors of the Company on December 6, 2004
(the "Termination Date") and Employee's employment with the Company ceased as of
the Termination Date;
WHEREAS, the Company and Employee have entered into a Stock Option
Agreement dated August 19, 2002 granting Employee the option to purchase up to
1,700,000 shares of the Company's common stock for $3.15 per share subject to
the terms and conditions of the Stock Option Agreement (the "2002 Stock Option
Agreement");
WHEREAS, the Company and Employee have entered into a Stock Option
Agreement dated August 11, 2003 granting Employee the option to purchase up to
400,000 shares of the Company's common stock for $6.16 per share subject to the
terms and conditions of the Company's 1997 Stock Option Plan and the Stock
Option Agreement (the "2003 Stock Option Agreement" and, together with the 2002
Stock Option Agreement, the "Stock Option Agreements"); and
WHEREAS, the Parties wish to resolve any and all disputes, claims,
complaints, grievances, charges, actions, petitions and demands that the
Employee may have against the Company, 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:
COVENANTS
1. Consideration. The Company agrees to pay Employee within five (5)
business days of the Effective Date one lump sum payment equal to the equivalent
of seven and one-half (7.5) months of his base salary, less applicable
withholding. After the Termination Date, Employee will not be entitled to
accrual of any employee benefits, including, but not limited to, vesting in
stock options or vacation benefits, except as provided in sections 2 and 3
below.
2. Stock. The Parties agree that for purposes of determining the number
of shares of the Company's common stock which Employee is entitled to purchase
from the Company pursuant to the Stock Option Agreements (the "Options"),
Employee shall, as of the Termination Date, be vested as to 956,248 shares
pursuant to the 2002 Stock Option Agreement and 66,668 shares pursuant to the
2003 Stock Option Agreement (together, the "Vested Options"). In addition, as of
the Effective Date, an additional 371,876 shares pursuant to the 2002 Stock
Option Agreement and an additional 166,666 shares pursuant to the 2003 Stock
Option Agreement shall accelerate and become immediately exercisable (together,
the "Accelerated Options"). Employee acknowledges and agrees that, as of the
Effective Date, he will have vested in the sum of the Vested Options and the
Accelerated Options (1,561,458 shares) and no more and that such Options shall
be exercisable until December 6, 2005. The Options, including all shares thereof
purchased by Employee, shall continue to be governed by the terms and conditions
of the Stock Option Agreements and, if applicable, the 1997 Stock Option Plan,
except as expressly modified above.
3. Benefits. Employee's health insurance benefits will cease on
December 31, 2004, subject to Employee's right to continue his health insurance
under COBRA through June 30, 2005, the premiums for which will be paid by the
Company. Employee's participation in all other benefits and incidents of
employment ceased on the Termination Date. Employee ceased accruing employee
benefits, including, but not limited to, vacation time and paid time off, as of
the Termination Date.
4. 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 the
Confidentiality Agreement between Employee and the Company. Employee shall
return all of the Company's property and confidential and proprietary
information in his possession to the Company. By signing this Agreement,
Employee represents and declares under penalty of perjury under the laws of the
State of California that he has returned all Company property.
5. Payment of Salary. Employee acknowledges and represents that the
Company has paid all salary, wages, bonuses, accrued vacation, commissions and
any and all other benefits due to Employee, except for the consideration and
benefits set forth in Sections 1, 2, 3 and 17 of this Agreement.
6. 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 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 ("the Releasees"), from, and agree not to xxx
concerning, any claim, duty, obligation or cause of action relating to any
matters of any kind, whether presently known or unknown, suspected or
unsuspected, that Employee may possess arising from any omissions, acts or facts
that have occurred up until and including the Effective Date of this Agreement
including, without limitation:
(a) any and all claims relating to or arising from Employee's
employment relationship with the Company and the termination of that
relationship;
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(b) any and all claims relating to, or arising from,
Employee's right to purchase, or actual purchase of shares of stock of the
Company, including, without limitation, any claims for fraud, misrepresentation,
breach of fiduciary duty, breach of duty under applicable state corporate law,
and securities fraud under any state or federal law;
(c) any and all claims under the law of any jurisdiction
including, but not limited to, wrongful discharge of employment; constructive
discharge from employment; termination in violation of public policy;
discrimination; breach of contract, both express and implied; breach of a
covenant of good faith and fair dealing, both express and implied; promissory
estoppel; negligent or intentional infliction of emotional distress; negligent
or intentional misrepresentation; negligent or intentional interference with
contract or prospective economic advantage; unfair business practices;
defamation; libel; slander; negligence; personal injury; assault; battery;
invasion of privacy; false imprisonment; and conversion;
(d) any and all 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,
including, but not limited to Labor Code sections 1400-1408;
(e) any and all claims for violation of the federal, or any
state, constitution;
(f) any and all claims arising out of any other laws and
regulations relating to employment or employment discrimination;
(g) any claim for any loss, cost, damage, or expense arising
out of any dispute over the non-withholding or other tax treatment of any of the
proceeds received by Employee as a result of this Agreement; and
(h) any and all claims for attorneys' fees and costs.
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 as to the matters released. This release does not extend to any
obligations incurred under this Agreement.
7. Acknowledgement of Waiver of Claims Under ADEA. Employee
acknowledges that he is waiving and releasing any rights he may have under the
Age Discrimination in Employment Act of 1967 ("ADEA") and that this waiver and
release is knowing and voluntary. Employee and the Company agree that this
waiver and release does not apply to any rights or claims that may arise under
ADEA after the Effective Date of this Agreement. Employee acknowledges that the
consideration given for this waiver and release Agreement is in addition to
anything of value to which Employee was already entitled. Employee further
acknowledges that he has been advised by this writing that:
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(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. Unknown Claims. Employee represents that he is not aware of any
claim by him other than the claims that are released by this Agreement. Employee
acknowledges that he has had the opportunity to be advised by legal counsel and
is familiar with the following principle:
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.
Employee, being aware of said code section, agrees to expressly waive
any rights he may have thereunder, as well as under any other statute or common
law principles of similar effect.
9. No Pending or Future Lawsuits. Employee represents that he has no
lawsuits, claims, or actions pending in his name, or on behalf of any other
person or entity, against the Company or any other person or entity referred to
herein. Employee also represents that he does not intend to bring any claims on
his own behalf or on behalf of any other person or entity against the Company or
any other person or entity referred to herein.
10. Application for Employment. While Company may offer to re-hire
Employee, Employee understands and agrees that, as a condition of this
Agreement, he shall not be entitled to any employment with the Company, and he
hereby waives any right, or alleged right, of employment or re-employment with
the Company. Employee further agrees that he/she will not apply for employment
with the Company.
11. Confidentiality. The Parties acknowledge that Employee's agreement
to keep the terms and conditions of this Agreement confidential was a material
factor on which all parties relied in entering into this Agreement. Employee
hereto agrees to use his/her best efforts to maintain in confidence the
existence of this Agreement, the contents and terms of this Agreement, and the
consideration for this Agreement (hereinafter collectively referred to as
"Settlement Information"). Employee agrees to take every reasonable precaution
to prevent disclosure of any Settlement Information to third parties, and agrees
that there will be no publicity, directly or indirectly, concerning any
Settlement Information. Employee agrees to take every precaution to disclose
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Settlement Information only to those attorneys, accountants, governmental
entities, and family members who have a reasonable need to know of such
Settlement Information.
12. No Cooperation. Employee agrees he will not act in any manner that
might damage the business of the Company. 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 Releasees, 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.
13. Non-Disparagement. Employee agrees to refrain from any defamation,
libel or slander of the Releasees, and any tortious interference with the
contracts, relationships and prospective economic advantage of the Releasees.
Employee agrees that he shall direct all inquiries by potential future employers
to Xxx Xxxxxx, the Company's Chief Financial Officer.
14. [Intentionally omitted].
15. Breach. Employee acknowledges and agrees that any breach of any
provision of this Agreement, except as permitted by paragraph 7(e), shall
constitute a material breach of this Agreement and shall entitle the Company
immediately to recover and/or cease the severance benefits provided to Employee
under this Agreement.
16. 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, or either of
them, either previously or in connection with this Agreement shall be deemed or
construed to be:
(a) an admission of the truth or falsity of any claims made or
any potential claims; or
(b) an acknowledgment or admission by either party of any
fault or liability whatsoever to the other party or to any third party.
17. Costs. The Parties shall each bear their own costs, expert fees,
attorneys' fees and other fees incurred in connection with this Agreement,
except as set forth in Section 18 below and except that the Company will pay
Employee $2,000 within five (5) business days of the Effective Date for legal
fees and expenses in connection with the review of this Agreement.
18. 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 Santa Xxxxx 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
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Parties and the subject matter of their dispute relating to Employee's
obligations under this Agreement and the Confidentiality Agreement.
19. Authority. The Company represents and warrants that the undersigned
has the authority to act on behalf of the Company and to bind the Company and
all who may claim through it to the terms and conditions of this Agreement.
Employee represents and warrants that he has the capacity to act on his own
behalf and on behalf of all who might claim through him to bind them to the
terms and conditions of this Agreement. Each party warrants and represents that
there are no liens or claims of lien or assignments in law or equity or
otherwise of or against any of the claims or causes of action released herein.
20. 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.
21. 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.
22. 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 of this Agreement and Employee's relationship with
the Company, with the exception of the Confidentiality Agreement and the Stock
Option Agreements.
23. No Waiver. The failure of the Company 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 thereafter as a 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.
24. No Oral Modification. This Agreement may only be amended in a
writing signed by Employee and the Chief Executive Officer of the Company.
25. 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.
26. Effective Date. This Agreement is effective after it has been
signed by both parties and after seven (7) days have passed since Employee has
signed the Agreement.
27. 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.
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28. Voluntary Execution of Agreement. 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:
(a) They have read this Agreement;
(b) They have been represented in the preparation,
negotiation, and execution of this Agreement by legal counsel of their own
choice or that they have voluntarily declined to seek such counsel;
(c) They understand the terms and consequences of this
Agreement and of the releases it contains; and
(d) 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.
SIPEX CORPORATION
Dated: December 17, 2004 By: /s/ Xxxxxxx XxXxxxxx
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Name: Xxxxxxx XxXxxxxx
Title: Chairman
WALID MAGHRIBI, an individual
Dated: December 17, 2004 By: /s/ Walid Maghribi
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