SEPARATION AGREEMENT
Exhibit 10.1
This Separation Agreement (this “Agreement”) is being entered into as of this 6th day
of July, 2010 (the “Date of this Agreement”), by and between Biolase Technology, Inc. (the
“Company”), and Xxxxx X. Xxxxx, an individual (“Employee”) (each of the Company and
Employee is sometimes hereinafter referred to individually, as a “Party” and collectively,
as the “Parties”).
WHEREAS, Employee and the Company are parties to that certain Employment Agreement, dated as
of July 13, 2009 (the “Employment Agreement”).
WHEREAS, the Parties wish to provide for severance benefits in lieu of any severance benefits
provided under the Employment Agreement on the terms and conditions set forth below.
WHEREFORE in consideration of the foregoing premises and the terms and conditions set forth
below, the Parties agree as follows:
1. Termination of Employment.
a. The Company has terminated Employee’s employment, effective as of July 6, 2010
(the “Effective Date”). The Company terminated Employee from his position as the Chief
Financial Officer, effective as of the Effective Date. Employee hereby acknowledges receipt of the
Company’s notice of termination, and resigns from each position as a director, officer and/or
employee of the Company or any subsidiary or affiliate of the Company, effective as of the
Effective Date.
b. Employee acknowledges that he is entitled to be paid all salary and wages
through and including the Effective Date, including without limitation, and any accrued unused
vacation benefits, which will be paid by the Company on the Effective Date, and Employee will be
reimbursed for all reasonably business expenses incurred upon submission of evidence of such
expenses. Except as otherwise provided for in this Agreement, the rights and obligations of
Employee and the Company under the Employment Agreement terminated on the Effective Date and shall
have no further force or effect after the Effective Date.
c. Provided that within twenty-one days of the date on which Employee receives this
Agreement, Employee executes and delivers to the Company the Termination Certification attached
hereto as Exhibit A and the Mutual Release and Waiver of Claims (the “Release”)
attached hereto as Exhibit B, and further provided that Employee does not revoke the
Release in accordance with its terms and conditions, the Company shall provide to Employee, in lieu
of any compensation or benefits under the Employment Agreement, the following severance benefits:
(1) The Company shall pay to Employee $17,500, subject to applicable tax
withholding, payable in two consecutive installments, commencing on the first regular pay period
following the expiration and non-revocation of the revocation period contained in the Release. The
Company shall report such amount as wages paid on each payment date and shall remit the amount of
the required tax withholding to the relevant tax authorities.
(2) The Company shall pay COBRA premiums for Employee (and his eligible dependents) under the
Company’s medical and dental benefit plans, as in effect from time to time, for a three (3) month
period commencing on August 1, 2010. The benefits under such plans shall be provided through
insurance maintained by the Company.
(3) To the extent that it is permissible by law and in compliance with all plan rules, the
Company shall pay Employee’s premiums under the Company’s group life insurance, accidental death
and dismemberment and disability benefit plans during the three (3) month period following the
Effective Date. The benefits under such plans shall be provided through insurance maintained by the
Company.
d. Except as provided for in this Agreement, Employee understands and agrees that
he is giving up any right or claim to further compensation from the Company. Employee and the
Company have no further rights or obligations under the Employment Agreement, except as otherwise
specified in this Agreement.
2. No Admission. Employee and the Company further understand and agree that neither
the payment of money nor the execution of this Agreement, including the Release, shall constitute
or be construed as an admission of any liability whatsoever by either Party.
3. Severability. The provisions of this Agreement are severable, and if any part of
this Agreement is found to be unenforceable, the other paragraphs (or portions thereof) shall
remain fully valid and enforceable.
4. No Encouragement of Actions/Cooperation with the Company. Employee agrees that he
will not assist any person or entity in bringing or pursuing legal action against the Company, its
agents, successors, representatives, employees and related and/or affiliated companies, based on
events occurring prior to the Effective Date; provided, however, that this
Section 4 shall not apply to any legal action arising from or related to this Agreement or to any
conduct compelled by or pursuant to applicable law, nor shall it prohibit, in any way, Employee
from responding to a subpoena or taking any other action required by law. To the extent Employee
is subpoenaed or otherwise requested or required to provide any documents, testimony or other
information concerning the Company, he shall notify the Company as soon as practicable, and
cooperate with the Company in opposing any such request or requirement to the extent permitted by
applicable law. Employee shall also provide information requested by the Company, and make himself
available at reasonable time upon reasonable request to assist the Company in defending or
prosecuting any legal action or arbitration to the extent it concerns events occurring during his
employment or events as to which he may have knowledge. The Company shall reimburse Employee for
any reasonable out of pocket expenses incurred and shall compensate Employee for Employee’s actual
time spent, including travel time, providing information or assistance to the Company, under the
immediately preceding sentence, at the rate of $250.00 per hour.
5. No Disparagement. The Company and Employee agree that for a period of ten (10)
years after Employee’s employment with the Company ceases, they will not, in any communication with
any person or entity, including any actual or potential customer, client, investor, vendor,
distributor, or business partner of the Company, or any third party media outlet, make any
derogatory or disparaging or critical negative statements — orally, written or otherwise — against
the other, or against the Employee’s affiliates, or any of the Company’s directors, officers, or
agents (in the case of any of Employee’s affiliates, at such time as they are affiliated with
Employee or, in the case of any of the Company’s directors, officers or agents, at such time as
they are employed by, or acting for, the Company). The parties acknowledge and agree that the
obligation on the part of the Company not to make any derogatory statements as set forth in this
paragraph shall only apply to the Company’s officers and directors.
6. Company Property. Employee agrees to search his/her home, office and all other
storage areas for all property owned by the Company and to return all Company property and
equipment to the Company within ten (10) days of his receipt of this Agreement.
7. Choice of Law and Venue. The Parties acknowledge and agree that this Agreement
shall be interpreted in accordance with California law. If any claims or actions arising out of or
relating to this Agreement or Employee’s service with the Company are determined by an arbitrator
not to be subject to Section 9, they shall be filed in either the Superior Court of the State of
California for the County of Orange, or the Federal District Court for the Central District of
California.
8. Sole and Entire Agreement; Obligations of Employee. With the exception of the
terms and conditions of the Release, the Proprietary Information Agreement, Termination
Certification, and the non-solicitation provisions set forth in Section 6 of the Employment
Agreement, this Agreement and the exhibits hereto represent the sole and entire agreement among the
Parties and supersedes all prior agreements (including, without limitation, the Employment
Agreement), negotiations, and discussions between the Parties hereto and/or their respective
counsel. The non-solicitation provisions of Section 6 of the Employment Agreement shall remain in
full force and effect and shall survive the termination of Employee’s employment with the Company
and the termination of the Employment Agreement, and Employee acknowledges and agrees that the
Company shall have the right to communicate with any future or prospective employer of Employee
concerning Employee’s obligations under this Agreement, the Proprietary Information Agreement, and
the non-solicitation provisions of Section 6 of the Employment Agreement. Employee is not relying
on any promise or representation by the Company that is not expressly stated herein and the Company
is not relying on any promise or representation by Employee that is not expressly stated herein.
Any agreement amending or superseding this Agreement must be in writing, signed by duly authorized
representatives of the Parties, specifically reference this Agreement; and state the intent of the
Parties to amend or supersede this Agreement. This Agreement may only be modified by a writing
signed by both Employee and a duly authorized officer of the Company.
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9. Arbitration. The Parties hereby agree to submit any claim or dispute arising out
of or relating to the terms of this Agreement to private and confidential arbitration by a single
neutral arbitrator. Subject to the terms of this Section, the arbitration proceedings shall be
governed by the rules of the Judicial Arbitration and Mediation Service (“JAMS”) applicable
to employment disputes as they may be in effect from time to time, and shall take place in Orange
County, California. The arbitrator shall be appointed by agreement of the Parties hereto or, if no
agreement can be reached, by the JAMS pursuant to its rules. The decision of the arbitrator shall
be rendered in writing and be final and binding on all Parties to this Agreement, and judgment
thereon may be entered in any court having jurisdiction. The arbitrator’s fees and/or any other
fees payable to JAMS shall be shared in accordance with the rules of JAMS; provided, however, that
Employee shall not be required to pay any such fees that are unique to arbitration and/or would
exceed the cost of filing the same claim(s) in a court of competent jurisdiction, and any shortfall
shall be borne by the Company. The Parties shall each bear their own attorneys’ fees, witness
expenses, expert fees and other costs, except to the extent they may be awarded otherwise by the
arbitrator in accordance with applicable law. This arbitration procedure is intended to be the
sole and exclusive method of resolving any claim between the Parties, and each of the Parties
hereby waives any right to a jury trial with respect to such claims.
10. Headings; Construction of Agreement. The headings in this Agreement are provided
solely for the Parties’ convenience, and are not intended to be part of, nor to affect or alter the
interpretation or meaning of this Agreement. Both Parties have been represented by, or had the
opportunity to be represented by, counsel in connection with this Agreement.
11. Counterparts. For the convenience of the Parties hereto, this Agreement may be
executed in any number of counterparts, each such counterpart being deemed to be an original
instrument, and all such counterparts shall together constitute the same agreement.
12. Authority to Execute this Agreement. The person or persons executing this
Agreement on behalf of a Party warrants and represents that he has the authority to execute this
Agreement on behalf of the Party and has the authority to bind that Party to the performance of its
obligations hereunder.
IN WITNESS WHEREOF, the parties have entered into this Separation and General Release
Agreement as of the date first set forth above.
“COMPANY”
BIOLASE TECHNOLOGY, INC.
| By: | /s/ Xxxxx X. Xxxxxx | ||
| Name: | Xxxxx X. Xxxxxx | ||
| Title: | Chairman and Chief Executive Officer | ||
“EMPLOYEE”
| /s/ Xxxxx X. Xxxxx | |||
| Xxxxx X. Xxxxx | |||
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EXHIBIT A
BIOLASE TECHNOLOGY, INC.
TERMINATION CERTIFICATION
This is to certify that based on a reasonably diligent search by me, and to the best of my
knowledge, I do not have in my possession, nor have I failed to return, any devices, records, data,
notes, reports, proposals, lists, correspondence, specifications, drawings, blueprints, sketches,
materials, equipment, other documents or property, or reproductions of any aforementioned items
which is a trade secret and/or proprietary information belonging to BioLase Technology, Inc., its
subsidiaries, affiliates, successors or assigns (together, the “Company”).
I further certify that, to the best of my knowledge, I have complied with all the terms of the
Company’s Employee Proprietary Information Agreement signed by me.
I further agree that, in compliance with the Employee Proprietary Information Agreement, I will
preserve as confidential all trade secrets, confidential knowledge, data or other proprietary
information relating to products, processes, know-how, designs, formulas, developmental or
experimental work, computer programs, data bases, other original works of authorship, customer
lists, business plans, financial information or other subject matter pertaining to any Business of
the Company or any of its clients, consultants or licensees which is proprietary and/or
confidential information to the Company.
Date:
| Xxxxx X. Xxxxx | |||
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EXHIBIT B
GENERAL RELEASE AND WAIVER OF CLAIMS
In consideration of the payments and other benefits set forth in the Separation and General
Release Agreement, dated as of July 6, 2010, by and between Executive and the Company (the
“Agreement”), to which this form shall be deemed to be attached, Xxxxx X. Xxxxx (“Executive”)
hereby agrees to the following general release and waiver of claims (“General Release”).
In exchange for the consideration provided to Executive by the Agreement that Executive is not
otherwise entitled to receive, Executive hereby generally and completely releases Biolase
Technology, Inc. (the “Company”) and its directors, officers, employees, shareholders, partners,
agents, attorneys, predecessors, successors, parent and subsidiary entities, insurers, affiliates,
and assigns from any and all claims, liabilities and obligations, both known and unknown, that
arise out of or are in any way related to events, acts, conduct, or omissions occurring from the
beginning of the world to my signing of this General Release. This general release includes, but is
not limited to: (1) all claims arising out of or in any way related to Executive’s employment with
the Company or the termination of that employment; (2) all claims related to Executive’s
compensation or benefits from the Company, including salary, bonuses, commissions, vacation pay,
expense reimbursements, severance pay, fringe benefits, stock, or any other ownership interests in
the Company; (3) all claims for breach of contract, wrongful termination, and breach of the implied
covenant of good faith and fair dealing; (4) all tort claims, including claims for fraud,
defamation, emotional distress, and discharge in violation of public policy; and (5) all federal,
state, and local statutory claims, including claims for discrimination, harassment, retaliation,
attorneys’ fees, or other claims arising under Title VII of the 1964 Civil Rights Act, as amended,
the Age Discrimination in Employment Act, the California Fair Employment and Housing Act, the Equal
Pay Act of 1963, as amended, the provisions of the California Labor Code, the Americans with
Disabilities Act, the Fair Labor Standards Act, the Employee Retirement Income Security Act of
1974, as amended (“ERISA”), the Xxxxxxxx-Xxxxx Act of 2002, and any other state, federal, or local
laws and regulations relating to employment and/or employment discrimination. The only exceptions
are claims Executive may have for unemployment compensation and worker’s compensation, Base Salary
(through the date of termination), outstanding business expenses, and unused vacation earned
through the date of termination of Executive.
Executive expressly waives and relinquishes any and all rights and benefits Executive now has
or may have in the future under the terms of Section 1542 of the Civil Code of the State of
California, which sections reads in full as follows:
A general release does not extend to claims which the creditor does not know or
suspect to exist in his or her favor at the time of executing the release, which if
known by him or her must have materially affected his or her settlement with the
debtor.
Notwithstanding said Code Section, Executive knowingly and voluntarily waives the provisions of
Section 1542 as well as any other statutory or common law provisions of similar effect and
acknowledges and agrees that this waiver is an essential part of this General Release.
Executive acknowledges that, among other rights, Executive is waiving and releasing any rights
Executive may have under ADEA, that this General Release is knowing and voluntary, and that the
consideration given for this General Release is in addition to anything of value to which Executive
was already entitled as an executive of the Company. Executive further acknowledge that Executive
has been advised, as required by the Older Workers Benefit Protection Act, that: (a) the General
Release granted herein does not relate to claims under the ADEA which may arise after this General
Release is executed; (b) Executive has the right to consult with an attorney prior to executing
this General Release (although Executive may choose voluntarily not to do so); and (c) Executive
has twenty-one (21) days from the date of termination of Executive’s employment with the Company in
which to consider this General Release (although Executive may choose voluntarily to execute this
General Release earlier, in which case he voluntarily waives the remainder of the twenty-one (21)
day period); (d) Executive has seven (7) days
following the execution of this General Release to revoke his consent to this General Release;
and (e) this General Release shall not be effective until the seven (7) day revocation period has
expired.
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Executive acknowledges his continuing obligations under the Proprietary Information and
Inventions Agreement and the non-solicitation provisions set forth in Section 6 of that certain
Employment Agreement, dated July 13, 2009, by and between the Executive and the Company (the
“Employment Agreement”). Nothing contained in this General Release shall be deemed to modify, amend
or supersede the obligations set forth in such agreements.
By signing this General Release, Executive hereby represents that he is not aware of any
affirmative conduct or the failure to act on the part of the Company, its officers, directors,
and/or employees concerning the Company’s business practices, its reporting obligations, its
customers and/or prospective customers, its products, and/or any other any other aspect of the
Company’s business, which Executive has any reason to believe rises to the level of unfair,
improper and/or unlawful conduct pursuant to any state or federal law, rule, regulation or order,
including, but not limited to, any rule, regulation or decision promulgated or enforced by the
Securities and Exchange Commission, or which has been promulgated or enforced by any other state or
federal office or administrative body pursuant to the Xxxxxxxx-Xxxxx Act of 2002.
With the exception of the terms set forth in the Proprietary Information Agreement, the
Agreement, and the non-solicitation provisions set forth in the Employment Agreement, this General
Release constitutes the complete, final and exclusive embodiment of the entire agreement between
the Company and Executive with regard to the subject matter hereof. Executive is not relying on any
promise or representation by the Company that is not expressly stated herein and the Company is not
relying on any promise or representation by Executive that is not expressly stated herein. This
General Release may only be modified by a writing signed by both Executive and a duly authorized
officer of the Company.
The Company and Executive agree that for a period of ten (10) years after Executive’s
employment with the Company ceases, they will not, in any communication with any person or entity,
including any actual or potential customer, client, investor, vendor, distributor, or business
partner of the Company, or any third party media outlet, make any derogatory or disparaging or
critical negative statements — orally, written or otherwise — against the other, or against the
Executive’s estate or affiliates, any of the Company’s directors, officers or employees. The
parties acknowledge and agree that the obligation on the part of the Company not to make any
derogatory statements as set forth in this paragraph shall only apply to the Company’s officers and
directors.
The parties agree that this General Release does not in any way compromise or lessen
Executive’s rights to be indemnified by the Company pursuant to that certain Indemnification
Agreement dated July 14, 2009, pursuant to the Company’s by-laws or certificate of incorporation,
or otherwise be covered under any applicable insurance policies that Executive would otherwise be
entitled to receive and/or be covered by.
The parties agree that in no way does this General Release preclude Executive from enforcing
his ownership rights pertaining to any stock or stock options which may have been purchased by
Executive or granted to Executive by the Company pursuant to a written stock option grant and/or as
memorialized in a written Board Resolution (and as reported periodically in the Company’s proxy
statements).
BIOLASE TECHNOLOGY, INC.
| By: | |||
| Name: | Xxxxx X. Xxxxxx | ||
| Title: | Chairman and Chief Executive Officer | ||
| Xxxxx X. Xxxxx | ||
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