Exhibit 10.14
SETTLEMENT AGREEMENT
AND
GENERAL RELEASE
This Confidential Settlement Agreement and General Release ("Agreement") is
entered into as of this 24th day of October, 2006, by and between Xxxxxxx X.
Xxxxx ("Xxxxx") and Cardiogenesis Corporation (the "Company") (Xxxxx and the
Company are collectively referred to herein as the "Parties").
This Agreement is made with reference to the following facts:
WHEREAS, Xxxxx has made claims against the Company which include
allegations of breach of employment contract and wrongful termination.
WHEREAS, the Company denies that it has injured or damaged Xxxxx in any
manner whatsoever, and denies any liability whatsoever with respect to Xxxxx.
WHEREAS, the Parties desire to compromise and finally settle and resolve
all controversies between them including, but not limited to, claims and
disputes arising out of Xxxxx'x employment with the Company, to bring these
matters to a conclusion and to avoid incurring costs and expenses which would be
incident to the prosecution and defense of claims arising from these disputed
matters.
NOW, THEREFORE, the Parties, for good and adequate consideration, receipt
of which is hereby acknowledged, agree as follows:
1. PAYMENTS AND OTHER CONSIDERATION:
The Company shall pay Xxxxx in the gross amount of $550,000.00 less lawful
deductions and withholding, where applicable as follows:
(a) Four Hundred and Ninety Eight Thousand Six Hundred and
Seventy-Seven Dollars and Fifty Cents ($ 498,677.50), less lawful deductions,
payable in equal installments over (3) three years in accordance with the
Company's standard payroll periods starting promptly following the effective
date of this Agreement as defined below. Should Xxxxx die before the end of this
payment term the remaining payments will be made to his spouse.
(b) Fifty One Thousand Three Hundred and Twenty-Two Dollars and
Fifty Cents ($ 51,322.50), payable to Xxxxxxx Xxxxx, LLP ("Xxxxx'x Attorneys"),
Tax Identification No. 00-0000000 which shall be reported to the appropriate
taxing authorities using a 1099 or similar form.
(c) The Company will extend the exercise date for the following
689,008 stock options previously issued to Xxxxx and identified between the
Parties during the
mediation: 89,008 at $0.32 per share; 150,000 at $0.70; per share; 200,000 at
$0.54 per share and 250,000 at $0.50 per share. The exercise date for these
options will be (3) three years from October 12, 2006.
2. DISMISSAL OF CLAIMS:
Xxxxx agrees to immediately dismiss or withdraw any pending lawsuits,
administrative charges or complaints against the Released Parties (see Paragraph
3.1, below) he has caused to be filed, if any. With regard to any administrative
charges, Xxxxx shall notify the applicable governmental entities that his
"claims and disputes with the Company have been resolved." Xxxxx further
promises and agrees that he will not file, refile, initiate, or cause to be
filed, refiled, or initiated, any claim, charge, suit, complaint, action, or
cause of action based upon, arising out of, or relating to any claims released
herein, nor will he participate, assist or cooperate in any action or proceeding
regarding the Company, whether before a court or administrative agency. Xxxxx
further agrees and understands that if any agency, court, or other forum assumes
jurisdiction of any complaint or charge against the Released Parties (see
Paragraph 3.1, below), and each of them, on behalf of Xxxxx, Xxxxx will
immediately request the dismissal with prejudice and withdrawal of the matter.
3. RELEASES AND COVENANTS NOT TO XXX:
3.1 General Release Of The Company. Except for his right to enforce
the provisions of this Agreement, Xxxxx hereby generally releases and covenants
not to xxx, on his own behalf and on behalf of any dependents, heirs, successors
and assigns, the Company and its past, present and future parent company or
companies, affiliated companies, partnerships, other affiliated entities,
subsidiaries, shareholders, partners, employees, agents, independent
contractors, insurers, attorneys and representatives, officers and directors,
including without limitation Xxxxxx Xxxxxxx, XX , Dr. Xxxx Xxxxx, Xx. Xxxxxx
Xxxxxxx and Xxxxxx Xxxxxxxxx and each of them (collectively the "Released
Parties"), from any and all claims, demands, causes of action, charges,
obligations, damages, breaches, claims for attorneys' fees, penalties, costs and
liabilities of any nature whatsoever, whether or not now known, suspected or
claimed, which Xxxxx now holds or has at any time heretofore owned or held
against the Released Parties, including, but not limited to:
(a) Claims for breach of contract, tort, wrongful discharge,
defamation, or interference with contract, and any claims under Title VII of the
Civil Rights Act, the Americans with Disabilities Act, California Family Rights
Act, the Family and Medical Leave Act, the California Fair Employment and
Housing Act, ERISA, and any other federal, state, and local law prohibiting
discrimination on the basis of race, religion, national origin, sex, pregnancy,
marital status, age, handicap, disability or any other prohibited criteria; and
(b) Claims for punitive, compensatory and consequential damages,
equitable relief, wages, lost earnings, benefits or attorneys' fees or other
expenses incurred by Xxxxx.
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3.2 Xxxxx acknowledges and agrees that:
(a) This Agreement constitutes a voluntary waiver of any and all
rights and claims he has against the Released Parties as of the date of his
execution of this Agreement under the Federal Age Discrimination in Employment
Act of 1986, 29 U.S.C. Section 621, et seq.;
(b) He has waived rights or claims pursuant to this Agreement in
exchange for consideration to be received from the Company, the value of which
exceeds wages or remuneration to which he already was entitled by law;
(c) He has been advised and has had the opportunity to consult
with an Attorney concerning this Agreement prior to executing it;
(d) He was given 21 days to consider the terms of this Agreement
and voluntarily chose to sign the Agreement prior to the expiration of the
21-day period; and
(e) He may revoke this Agreement at any time during the seven (7)
days following his execution of this Agreement and that this Agreement does not
become effective or enforceable until the revocation period has expired, which
will be the effective date of this Agreement.
3.3 General Release of Xxxxx. Except for its right to enforce the
provisions of this Agreement, the Company hereby generally releases and
covenants not to sue, Quinn, Xxxxx'x Attorneys and representatives, from any and
all claims, demands, causes of action, charges, obligations, damages, breaches,
attorneys' fees, penalties, costs and liabilities of any nature whatsoever,
whether or not now known, suspected or claimed, which the Company now holds or
has at this time heretofore owned or held or may at this time own or hold
against Xxxxx, Xxxxx'x Attorneys or representatives, including, but not limited
to, claims, actions, suits or charges arising out of or relating to Xxxxx'x
employment with the Company, his employment contract and its termination.
3.4 Release of Unknown Claims. It is a further condition of the
consideration herein and is the intention of the Parties in executing this
instrument that the same shall be effective as a bar as to each and every claim,
demand and cause of action hereinabove specified and, in furtherance of this
intention, Xxxxx hereby expressly waives any and all rights or benefits
conferred by the provisions of SECTION 1542 OF THE CALIFORNIA CIVIL CODE and of
any similar rule of law adopted by statute or otherwise in any other of the
United States, and expressly consents that this Agreement shall be given full
force and effect according to each and all of its express terms and conditions,
including those relating to unknown and unsuspected claims, demands and causes
of actions, if any, as well as those relating to any other claims, demands and
causes of actions hereinabove specified. SECTION 1542 provides:
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
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OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE
DEBTOR.
The Parties acknowledges that they may hereafter discover claims or facts
in addition to or different from those which they now know or believe to exist
with respect to the subject matter of this Agreement and which, if known or
suspected at the time of executing this Agreement, may have materially affected
this settlement. Nonetheless, the Parties hereby waives any right, claim or
causes of action that might arise as a result of such different or additional
claims or facts.
4. REPRESENTATIONS AND WARRANTIES:
4.1 Factual Investigation: Each Party hereto has made such
investigation of the facts pertaining to the releases set forth herein and of
all the matters pertaining thereto as he/it, as the case may be, deems
necessary.
4.2 Wages: Xxxxx acknowledges and agrees that he has been paid all
wages due and owing to him, if any, including vacation pay. This Agreement shall
not affect Xxxxx'x rights to any sums or benefits already vested at the time of
this Agreement under any pension plan the Company might have.
4.3 Knowledge and Consent of Parties: The Parties mutually warrant and
represent that they have read and understand this Agreement and that this
Agreement is executed voluntarily and without duress or undue influence on the
part of or on behalf of any Party hereto. The Parties hereby acknowledge that
they have been represented in negotiations and for the preparation of this
Agreement by counsel of their own choice, that they have read this Agreement and
have had it fully explained to them by such counsel, and that they are fully
aware of the contents of this Agreement and of the legal effect of each and
every provision thereof.
4.4 Resignation from Board; Indemnification and Cooperation: Xxxxx has
previously submitted his formal written resignation from the Company's Board of
Directors and hereby acknowledges and agrees that the effective date of such
resignation was October 12, 2006. The Company agrees that it shall provide that
statutory indemnification as well as any indemnification required by the Company
Bylaws with respect to any liability arising from Xxxxx'x employment or service
as a member of the Board of Directors. Xxxxx agrees that he will reasonably
cooperate with the Company in connection with any litigation.
4.5 No Prior Assignment: No Party to this Agreement has heretofore
assigned, transferred, or granted, or purported to assign, transfer or grant,
any of the claims, demands, and cause or causes of action released pursuant to
this Agreement. Each Party represents that he/it, as the case may be, is the
owner of the claims, demands and cause or causes of action that such Party is
releasing.
4.6 No Prior Claims: Xxxxx represents and warrants that he has not
filed any claims or complaints of any type except his claim for unemployment
against the Company, including administrative claims.
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4.7 Authority: Each Party who signs this Agreement warrants that he/it
has full authority to enter into the Agreement and will defend, indemnify, and
hold harmless all other Parties if that authority is later challenged.
4.8 Capacity: Each Party who signs this Agreement specifically
represents that he/it has the capacity to enter into this Agreement.
5. SETTLEMENT: This Agreement affects the settlement of claims which are
denied and contested, and nothing contained herein shall be construed as an
admission by the Parties or any of liability of any kind. The Parties deny any
liability in connection with any claims and intend merely to avoid the expenses
inherent in litigation.
6. FEES AND COSTS: Each Party shall pay and be responsible for the
attorneys' fees and costs incurred by such Party in connection with any claim
herein released, including without limitation, the negotiation and preparation
of this Agreement.
7. RETURN OF COMPANY PROPERTY AND DOCUMENTS: Xxxxx warrants that he has
made a diligent search and has returned all confidential material to the Company
as required by the Confidentiality and Intellectual Property Agreement executed
by him on October 30, 2005, which agreement shall survive the expiration of this
Agreement. To the extent he has not already done so, Xxxxx shall return to the
Company all copies of any and all materials, or copies of such materials,
created by the Company.
8. EMPLOYMENT OF XXXXX BY RELEASED PARTIES: Xxxxx hereby waives any rights
he may have to employment with the Company, its successors or assigns and agrees
that he will not apply for or seek future employment with the, Company, its
successors or assigns and, if he does so, he may be terminated without recourse.
9. NON DISPARAGEMENT: The Parties agree not to defame or disparage one
another.
10. MISCELLANEOUS:
10.1 Enforcement Costs: In the event any Party or Parties shall
institute an action or proceeding to enforce this Agreement, or any term(s) or
provision(s) hereof, or for a declaration of rights hereunder, the prevailing
Party shall be entitled to recover its attorneys' fees and costs (including but
not limited to the fees and expenses of expert witnesses) at arbitration and on
appeal.
10.2 Jurisdiction and Arbitration: This Agreement shall be construed
in accordance with and governed by the laws of the State of California. Any
controversy or claim arising out of or relating to this Agreement, or the terms
and conditions thereof, shall be settled by binding and confidential arbitration
in Los Angeles, California before Justice Xxxxxxx Xxxx or Xx. Xxxxxxx Xxxxxx of
the Judicial Arbitration and Mediation Services (JAMS) pursuant to the rules of
JAMS, and judgment upon the award rendered by the arbitrator(s) may be entered
in any court having jurisdiction thereof. The Parties agree to have any
objections to their service as the result of their service as mediators in this
matter. The Parties and their counsel, have participated in the preparation of
this Agreement and this Agreement is the result of the joint efforts of the
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Parties. Any uncertainty or ambiguity existing in this Agreement shall not be
interpreted against any Party as a result of the manner of the preparation of
this Agreement.
10.3 Injunctive Relief: In the event the Parties and each or any of
them breach any of the provisions, covenants or promises set forth in this
Agreement, the other Party will be entitled, notwithstanding Paragraph 11.2
above, to injunctive relief from a court of competent jurisdiction, enjoining
the breaching Party, his/its counsel, and all others acting on his/its behalf
from any further disclosure or dissemination of information or any activity in
breach of any provision of this Agreement, as the Parties agree that such
disclosure or dissemination would result in substantial, immediate, and
irreversible harm.
10.4 Successors: This Agreement and each and all of the
representations, warranties and covenants of the Parties made herein are binding
upon the Parties and each and all of their respective successors, assigns, heirs
and representatives.
10.5 Third-Party Beneficiaries: To the extent that this Agreement
releases and/or benefits persons or entities not signatory hereto, this
Agreement hereby is declared to be made for each of their express benefits and
uses.
10.6 Entire Agreement: This Agreement contains the sole and entire
agreement and understanding of the Parties with respect to the entire subject
matter hereof, and any and all prior discussions, negotiations, commitments or
understandings related thereto, if any, are hereby merged herein and therein. No
representations, oral or otherwise, express or implied, other than those
specifically referred to in this Agreement have been made by any Party hereto.
No other agreements not specifically contained or referenced herein, or
otherwise, shall be deemed to exist or to bind any of the Parties hereto with
the exception of the Confidentiality and Intellectual Property Agreements and
Policy Against Xxxxxxx Xxxxxxx executed by Xxxxx.
10.7 No Reliance: The Parties hereby represent and acknowledge that in
executing this Agreement, they have not relied upon any representation or
statement made by any of the Parties or their agents or representatives with
regard to the subject matter, basis or effect of this Agreement except as those
specifically stated in this written Agreement.
10.8 Severability: If any provision of this Agreement or the
application thereof is held invalid, the invalidity shall not affect other
provisions or applications of the Agreement, which can be given effect without
the invalid provisions or application and to this end the provisions of this
Agreement are declared to be severable.
10.9 Waiver, Modification and Amendment: No provision hereof may be
waived unless in writing signed by all Parties hereto. Waiver of any one
provision herein shall not be deemed to be a waiver of any other provision
herein. This Agreement may be amended or modified only by a written agreement
executed by all of the Parties hereto.
10.10 Binding Effect: This Agreement is binding upon and shall inure
to the benefit of the Parties hereto, and their respective agents, employees,
representatives, officers, directors, divisions, subsidiaries, affiliates,
assigns, beneficiaries, heirs, successors, and shareholders.
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10.11 Titles and Captions: Paragraph titles or captions contained in
this Agreement are inserted only as a matter of convenience and for reference
and in no way define, limit, extend or describe the scope of this Agreement or
the intent of any provision hereof.
10.12 Counterparts and Effective Date: This Agreement may be executed
in counterparts, and when each Party has signed and delivered at least one such
counterpart, each counterpart shall be deemed an original, and, when taken
together with the other signed counterparts, shall constitute one agreement,
which shall be binding and effective as to all Parties. This Agreement shall be
effective on the eighth day following the date last executed by one of the
Parties hereto if so executed in counterparts ("Effective Date"). This Agreement
shall not be effective unless signed by all Parties, as provided below.
10.13 Execution Via Facsimile: This Agreement may be executed by
signature via facsimile.
PLEASE READ CAREFULLY. THIS GENERAL AND SPECIAL RELEASE AND SETTLEMENT AGREEMENT
INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
The undersigned parties have read the foregoing Agreement and accept and
agree to the provisions it contains and hereby execute it voluntarily with full
understanding of its consequences.
DATED: October 24, 2006 /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
Cardiogenesis Corporation
DATED: October 24, 2006 /s/ Xxxxxx X. Xxxxxxx, XX
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By: Xxxxxx X. Xxxxxxx, XX,
Interim Chairman and CEO
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