EXHIBIT 10.19
SEVERANCE AGREEMENT AND RELEASE
RECITALS
This Severance Agreement and Release ("Agreement") is made by and
between Xxxxxx Xxxxxxxxx ("Employee") and Argonaut Technologies, Inc.
("Company"), collectively referred to as the ("Parties"):
WHEREAS, Employee was employed by the Company;
WHEREAS, the Company and Employee have entered into an Employee
Proprietary Information Agreement (the "Confidentiality Agreement");
WHEREAS, the Company and Employee have entered into Stock Option
Agreements dated December 18, 2001, January 30, 2002, April 11, 2003, and March
17, 2004 granting Employee the option to purchase shares of the Company's common
stock subject to the terms and conditions of the Company's 2000 Stock Option
Plans and the Stock Option Agreement (the "Stock Agreements");
WHEREAS, the Employee's has resigned his position as Senior Vice
President of Sales, Service and Marketing effective April 16, 2004 (The
"Termination Date").
WHEREAS, the Parties, and each of them, wish to resolve any and all
disputes, claims, complaints, grievances, charges, actions, petitions and
demands that the Employee may have against the Company as defined herein,
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.
(a) As consideration for the promises made by Employee in
this Agreement, the Company agrees to pay Employee 6 months of Employee's
current base salary. The parties agree that this payment is consideration to
Employee above and beyond anything of value to which Employee is already
entitled.
(b) Payment. The Company will tender the payment in
accordance with the Company's regular payroll practices, less applicable
withholding, made payable to Employee. The parties agree that this payment is
consideration to Employee above and beyond anything of value (salary, wages,
accrued Personal Time Off (PTO), floating holidays, and any and all other
benefits due to Employee) to which Employee is already entitled.
(c) Stock. The Parties agree that for purposes of
determining the number of shares of the Company's common stock that Employee is
entitled to purchase from the Company, pursuant to the exercise of outstanding
options, the Employee will be considered to have vested only up to the
Termination Date. Employee acknowledges that as of the Termination Date, he will
have vested in 106,892 options and no more. The exercise of any stock options
shall continue to be subject to the terms and conditions of the Stock Agreements
with the exception that Employee shall have the right to purchase vested stock
options for 90 days after the Termination Date.
(d) Benefits. Employee shall have the right to convert
his health insurance benefits to individual coverage pursuant to COBRA.
2. 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 on the Effective Date of this
Agreement.
3. Payment of Salary. Employee acknowledges and represents that
the Company has paid all salary, wages, accrued Personal Time Off (PTO),
floating holidays, and any and all other benefits due to Employee once the above
noted payments and benefits are received.
4. Release of Claims. Employee agrees that the foregoing
consideration represents settlement in full of all outstanding obligations owed
to Employee by the Company. Employee, on his own behalf, and on behalf of his
respective heirs, family members, executors, and assigns, hereby fully and
forever releases the Company and its officers, directors, employees, investors,
shareholders, administrators, affiliates, divisions, subsidiaries, predecessor
and successor corporations, and assigns, 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;
(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;
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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, Older Workers Benefit
Protection Act; the California Fair Employment and Housing Act, and Labor Code
section 201, et seq. and section 970, et seq.;
(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.
5. 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:
(a) he should consult with an attorney prior to executing
this Agreement;
(b) he has up to forty-five (45) days within which to
consider this Agreement;
(c) he has seven (7) days following his 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
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impose any condition precedent, penalties or costs for doing so, unless
specifically authorized by federal law.
6. Civil Code Section 1542. The Parties represent that they are
not aware of any claim by either of them other than the claims that are released
by this Agreement. Employee and the Company acknowledge that they have been
advised by legal counsel and are familiar with the provisions of California
Civil Code Section 1542, which provides as follows:
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 and the Company, being aware of said code section, agree to
expressly waive any rights they may have thereunder, as well as under any other
statute or common law principles of similar effect.
7. 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.
8. 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 reasonable best efforts to maintain in
confidence the existence of this Agreement, the contents and terms of this
Agreement, the consideration for this Agreement, and any allegations relating to
the Company or his employment with the Company except as otherwise provided for
in 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 both Parties
agree that there will be no publicity, directly or indirectly, concerning any
Settlement Information. Employee agrees to take every precaution to disclose
Settlement Information only to those attorneys, accountants, governmental
entities, and family members who have a reasonable need to know of such
Settlement Information. The Parties agree that an enforcement action shall be
arbitrated pursuant to this Agreement and that, if Company proves that Employee
breached this Confidentiality provision, it shall be entitled to an award of its
costs spent enforcing this provision, including all reasonable attorneys' fees
associated with the enforcement action, without regard to whether the Company
can establish actual damages from the breach by Employee.
9. No Cooperation. Both Parties agree that they will not 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 the other and/or any officer, director, employee,
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agent, representative, shareholder, attorney, heir, family member, executor or
assign of the other , unless under a subpoena or other court order to do so.
Both Parties further agree both to (i) immediately notify the other upon receipt
of any court order, subpoena, or any legal discovery device that seeks or might
require the disclosure or production of the existence or terms of this
Agreement, and to (ii) furnish, within three (3) business days of its receipt, a
copy of such subpoena or legal discovery device to the other.
10. Non-Disparagement. Employee agrees to refrain from any
defamation, libel or slander of the Company or tortious interference with the
contracts and relationships of the Company. The officers and directors of the
Company agree to refrain from any defamation, libel or slander of the Employee
or tortious interference with the contracts and relationships of the Employee.
All inquiries by potential future employers of Employee will be directed to the
Company's Human Resources department. Upon inquiry, the Company's Human
Resources department shall only state the following: Employee 's last position
and dates of employment.
11. Non-Solicitation. Employee agrees that for a period of twelve
(12) months immediately following the Effective Date of this Agreement, Employee
shall not either directly or indirectly solicit, induce, recruit or encourage
any of the Company's employees to leave their employment, or take away such
employees, or attempt to solicit, induce, recruit, encourage, take away or hire
employees of the Company, either for himself or any other person or entity.
12. No Admission of Liability. The Parties understand and
acknowledge that this Agreement constitutes a compromise and settlement of
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
heretofore made or
(b) an acknowledgment or admission by either party of any
fault or liability whatsoever to the other party or to any third party.
13. Costs. The Parties shall each bear their own costs, expert
fees, attorneys' fees and other fees incurred in connection with this Agreement.
14. 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 San Mateo
County, California before the American Arbitration Association under its
Employment Dispute Resolution Rules, or by a judge to be mutually agreed upon.
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 up to the
cash severance benefit identified in 1(b) of this Agreement. 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 section will not prevent either party from
seeking injunctive relief (or any other provisional remedy) from any court
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having jurisdiction over the parties and the subject matter of their dispute
relating to the parties' obligations under this Agreement and the agreements
incorporated herein by reference.
15. 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/her 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.
16. 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. Neither party has
relied upon any representations or statements made by the other party hereto
which are not specifically set forth in this Agreement.
17. Severability. In the event that any provision hereof 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 so long as the remaining provisions remain intelligible and continue
to reflect the original intent of the Parties.
18. Entire Agreement. This Agreement, and the agreements
incorporated herein by reference to the extent they are consistent with this
Agreement, constitute the entire agreement and understanding between the Parties
concerning the subject matter of this Agreement and all prior representations,
understandings, and agreements concerning the subject matter of this Agreement
have been merged into this Agreement.
19. No Waiver. The failure of any party 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.
20. No Oral Modification. Any modification or amendment of this
Agreement, or additional obligation assumed by either party in connection with
this Agreement, shall be effective only if placed in writing and signed by both
Parties or by authorized representatives of each party. No provision of this
Agreement can be changed, altered, modified, or waived except by an executed
writing by the Parties.
21. Governing Law. This Agreement shall be deemed to have been
executed and delivered within the State of California, and it shall be
construed, interpreted, governed, and enforced in accordance with the laws of
the State of California, without regard to choice of law principles.
22. Attorneys' Fees. In the event that either Party brings an
action to enforce or effect its rights under this Agreement, the prevailing
party shall be entitled to recover its costs and expenses,
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including the costs of mediation, arbitration, litigation, court fees, plus
reasonable attorneys' fees, incurred in connection with such an action up to the
cash severance benefit identified in 1(b) of this Agreement.
23. Effective Date. This Agreement is effective after it has been
signed by both parties and after eight (8) days have passed since Employee has
signed the Agreement (the "Effective Date"), unless revoked by Employee within
seven (7) days after the date the Agreement was signed by Employee.
24. 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.
25. 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.
Argonaut Technologies, Inc.
Dated: April 2, 2004 By /s/ Xxxxx X. Xxxxxxxxxxx
---------------------------------
Xxxxx X. Xxxxxxxxxxx
President and CEO
Xxxxxx Xxxxxxxxx, an individual
Dated: April 2, 2004 /s/ Xxxxxx Xxxxxxxxx
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XXXXXX XXXXXXXXX
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