EXHIBIT 2.3
SEPARATION AGREEMENT
THIS AGREEMENT ("Agreement") is entered into as of the 31st day of
December, 2003, by and between SCOLR, Inc., a Delaware corporation (the
"Company") and Xxxxxx Xxxxx Xxxxx ("Xxxxx") in order to provide the terms and
conditions of Xxxxx'x separation of employment, and to fully and completely
resolve any and all issues that Xxxxx might have in connection with his
relationship with the Company and any related or affiliated Companies and the
termination of such relationships.
NOW, THEREFORE, in consideration of the mutual promises and conditions
contained herein, the parties agree as follows:
1. Termination of Employment Relationship and Separation. Xxxxx'x
employment with the Company shall cease effective as of December 31,
2003 (the "Separation Date"). All of Xxxxx'x wages and employee
benefits (except as otherwise provided herein) will also cease as of
the Separation Date. The parties agree that Xxxxx will be paid accrued
wages through the Separation Date and will be paid for all accrued
vacation, both computed at his current rate of compensation and less
lawfully required witholdings.
2. Resignation. Xxxxx hereby resigns from all employee and officer
positions with the Company and its subsidiaries.
3. Stock Options. Xxxxx has been granted stock options (the "Options")
exercisable for up to 400,000 shares of the Company's common stock as
more fully set forth on Schedule A attached hereto. The terms of the
Options are hereby amended as follows:
3.1 The Options shall become vested and immediately exercisable as
to an aggregate of 400,000 shares ("Vested Options") of the
respective grants and the Company's 1995 Stock Option Plan
(the "Plan").
3.2 The Vested Options shall remain exercisable until the close of
business on December 31, 2006.
4. Waiver of Claims. In return for the benefits conferred by this
Agreement and other related events, Xxxxx, on behalf of himself and his
marital community, heirs, executors, administrators and assigns, hereby
releases in full, and forever discharges, acquits, and holds harmless,
the Company, including any of the Company's past or present parent,
subsidiary or otherwise affiliated (through common ownership to any
extent or otherwise) corporations, partnerships, or other business
enterprises, and all of its or their past or present affiliates,
related entities, partners, subsidiaries, insurers, predecessors,
successors, assigns, directors, officers, shareholders, attorneys,
accountants, representatives, agents and employees (these
entities/persons together with the Company are collectively referred to
as "Associated Persons"), from any and all claims, disputes, suits,
demands, causes of action, liabilities, damages, expenses and
obligations of every nature, character and kind (collectively "Claims")
that Xxxxx may possess, whether known or unknown, which may now exist
or hereafter may be discovered, specifically
including without limitation any and all Claims arising from or
relating to Xxxxx'x employment or relationship with the Company, or the
Separation of such employment; provided that this release does not
include any Claims arising under the express terms of this Agreement
and since it is the Equal Employment Opportunity Commission's position
that a right to file a claim cannot be waived, this release does not
include the right to file a claim with the Equal Employment Opportunity
Commission (although Xxxxx expressly waives his right to obtain any
personal relief or damages related to any EEOC claim or charge). This
release includes, but is not limited to, any Claims that Xxxxx might
have for additional compensation, including without limitation any
Claim for any past, current or future wages, bonuses, incentive
payments, severance or benefits and applies to Claims for damages or
other personal remedies that he might have under federal, state and/or
local law dealing with employment, contract, wage and hour, civil
rights or any other matters, including, by way of example and not
limitation, applicable civil rights laws, Title VII of the Civil Rights
Act of 1965, the Post-War Civil Rights Act of 1964, the Post-War Civil
Rights Acts (42 USC Sections 1981-1988), the Age Discrimination in
Employment Act, the Americans with Disabilities Act, the Family and
Medical Leave Act, the Rehabilitation Act of 1973, the Equal Pay Act of
1963, Executive Order 11246, Washington's Law Against Discrimination,
Chapter 49.60 RCW, and Washington's Minimum Wage Act, Chapter 49.46
RCW, and any regulations under such laws. This release further applies
to any Claims or right to personal damages or other personal legal or
equitable remedies that Xxxxx may have as a result of filing any
complaint, charge or other action before any administrative agency.
This release shall not affect any reimbursement rights Xxxxx may have
under any medical insurance or any accrued rights under any retirement
savings plan and shall not affect or include any rights he now has or
may have in the future as a shareholder or stockholder of the Company
or any related or affiliated company or entity nor does it nor will it
affect or include any rights he has to indemnification by the Company
for claims against him by third parties, and such indemnification
rights shall remain in full force and effect beyond the term of this
Agreement. XXXXX ACKNOWLEDGES AND AGREES THAT THROUGH THIS RELEASE HE
IS GIVING UP ALL RIGHTS AND CLAIMS OF EVERY KIND AND NATURE WHATSOEVER,
KNOWN OR UNKNOWN, CONTINGENT OR LIQUIDATED, THAT HE MAY HAVE AGAINST
THE COMPANY, INCLUDING ASSOCIATED PERSONS, EXCEPT FOR THE RIGHTS
SPECIFICALLY EXCLUDED ABOVE AND THOSE RIGHTS PROVIDED HEREIN.
Similarly, in return for the benefits conferred by this Agreement and
other related events, the Company hereby releases in full, and forever
discharges acquits, and holds harmless, Xxxxx, from any and all claims,
disputes, suits, demands, causes of action, liabilities, damages,
expenses and obligations of every nature, character and kind
(collectively "Claims") that the Company may possess, whether known or
unknown, which may now exist or hereafter may be discovered,
specifically including without limitation any and all Claims arising
from or relating to Xxxxx'x employment with the Company, or the
Separation of such employment and/or his role or status as an officer,
director and agent of the Company.
5. Indemnification. To the fullest extent authorized or permitted by the
laws of the State of Delaware and the Company's Certificate of
Incorporation, the Company shall defend and
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indemnify Xxxxx against liability in connection with any proceeding to
which Xxxxx is made or is threatened to be made a party by reason of
the fact that he is or was an officer or director of the Company.
6. Non-Admission of Liability. The Company is offering these benefits to
Xxxxx due to its desire to have an amicable separation of employment
with him and in recognition of his past contributions to the Company.
This Agreement shall not be construed as an admission by the Company of
any liability to Xxxxx, breach of any agreement between the parties, or
violation by the Company of any statute or regulation. Xxxxx is
accepting these benefits due to his desire to have an amicable
separation of employment from the Company. This Agreement shall not be
construed as an admission by Xxxxx of any liability to the Company,
breach of any agreement between the parties, or violation by Xxxxx of
any statute or regulation.
7. Confidentiality. Xxxxx and the Company executed a Proprietary
Information and Inventions Agreement ("PIIA") dated August 6, 1986,
which remains in full force and effect, provided that as of the
effective date of this Agreement, the PIIA does not apply to
"Confidential Information," as defined under the PIIA, transferred to
the buyer under that certain Assets Purchase Agreement, dated December
31, 2003 ("APA") or as may be necessary for operation of the Business,
as defined in the APA.
8. Reference. The Company agrees to provide Xxxxx a favorable letter of
recommendation executed by the Chairman of the Company's Board of
Directors for Xxxxx'x use with respect to prospective employers, in
such form as the parties shall reasonably agree.
9. Miscellaneous.
9.1 Entire Agreement. This document is the entire, final and
complete agreement and understanding of the parties with
respect to the subject matter hereof, and supersedes and
replaces all written and oral agreements and understandings
heretofore made or existing by and between the parties or
their representatives with respect thereto.
9.2 Waiver. No waiver of any provision of this Agreement shall be
deemed, or shall constitute, a waiver of any other provisions,
whether or not similar, nor shall any waiver constitute a
continuing waiver. No waiver shall be binding unless executed
in writing by the party making the waiver.
9.3 Binding Effect. All rights, remedies and liabilities herein
given to or imposed upon the parties shall extend to, inure to
the benefit of and bind, as the circumstances may require, the
parties and their respective heirs, personal representatives,
administrators, successors and permitted assigns.
9.4 Amendment. No supplement, modification or amendment of this
Agreement shall be valid, unless the same is in writing and
signed by all parties hereto.
9.5 Severability. In the event any provision or portion of this
Agreement is held to be unenforceable or invalid by any court
of competent jurisdiction, the remainder of
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this Agreement shall remain in full force and effect and shall
in no way be affected or invalidated thereby.
9.6 Enforcement. In the event that there is a breach of this
Agreement by either party or noncompliance with the terms
contained herein, the nondefaulting or prevailing party shall
be entitled to recovery of any reasonable attorney's fees and
costs incurred in enforcing this Agreement.
9.7 Governing Law and Venue. This Agreement and the rights of the
parties hereunder shall be governed, construed and enforced in
accordance with the laws of the State of Washington, without
regard to its conflict of law principles. Any suit or action
arising out of or in connection with this Agreement, or any
breach hereof, shall be brought and maintained in the federal
or state courts in Seattle, Washington. The parties hereby
irrevocably submit to the jurisdiction of such courts for the
purpose of such suit or action and hereby expressly and
irrevocably waive, to the fullest extent permitted by law, any
objection it may now or hereafter have to the venue of any
such suit or action in any such court and any claim that any
such suit or action has been brought in an inconvenient forum.
9.8 Counterparts. This Agreement may be executed by the parties
individually or in separate counterparts, each of which shall
be an original, and each of which taken together shall
constitute one in the same agreement.
9.9 Further Acts. The parties agree to execute such additional
documents and take such other actions as are reasonably
necessary to implement the terms of this Agreement.
10. No Pressure or Coercion. Xxxxx acknowledges that he has read this
Agreement and is being given an opportunity to consider it for up to
twenty-one days, although he may sign it and deliver it to the Company
during the twenty-one day period. Xxxxx has been advised to discuss it
with financial and legal counsel of his choice. The parties further
acknowledge that he may revoke this Agreement within seven (7) days
after he has signed and delivered it. Only after that seven-day period
has passed, will the obligations under this Agreement become effective.
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.
SIGNATURE PAGE TO FOLLOW.
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IN WITNESS WHEREOF, the parties have executed this agreement freely, voluntarily
and with a complete understanding of its terms and present and future effect as
of the date set forth above.
XXXXXX X. XXXXX SCOLR, INC.
/s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxx
_________________________________ ____________________________________
Title: President & CEO
_________________________________
Date: 1/15/04 Date: 1/15/04
____________________________ __________________________________
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SCHEDULE A
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VESTING SCHEDULE
----------------
DATE OF PRICE/ NO. OF VESTED AS OF: TERMINATION
EMPLOYEE GRANT SHARE SHARES 9/5/2003 12/31/01 12/31/02 12/31/03 DATE
-------- -------- ------ ------ -------- ------------- -------- -------- -----------
XXXXX, XXXXX 04/06/95 $ 0.25 40,000 40000 40,000 40,000 40,000 11/16/04
11/22/96 $ 0.78 10,000 10000 10,000 10,000 10,000 11/22/06
04/21/97 $ 0.32 30,000 30000 30,000 30,000 30,000 04/21/07
01/30/98 $ 1.00 10,000 10000 10,000 10,000 10,000 01/30/08
09/24/99 $ 0.50 20,000 20000 13,333 20,000 20,000 09/24/09
02/09/01 $ 0.66 100,000 66667 16,667 33,333 66,667 02/09/11
05/24/01 $ 0.56 10,000 6667 1,667 3,333 6,667 05/24/11
11/26/02 $ 1.20 60,000 10000 -- -- 20,000 11/26/12
05/15/03 $ 1.05 100,000 100000 100,000 05/13/13
11/11/03 $ 1.97 20,000 11/11/13
