SEPARATION AND GENERAL RELEASE AGREEMENT
EXHIBIT 10.1
This Separation and General Release Agreement (this “Agreement”) is being entered into as of
this 20th day of March 2007, by and between IsoTis, Inc., a Delaware corporation (the “Company”),
and Xxxx Xxxxx, an individual (“Employee”) (each of the Company and Employee is sometimes
hereinafter referred to individually as a “Party” and collectively as the “Parties”), with respect
to the following facts.
WHEREFORE in consideration of the foregoing premises and the terms and conditions set forth
below, the Parties agree as follows:
b. In lieu of any compensation, benefits or severance under the Employment Agreements, the
Company and Employee agree as follows:
(1) Employee may retain the Apple computer provided to him by the Company, provided that
Employee removes any Company information or data.
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(2) On the Termination Date, the Company shall pay to Employee the 2006 Bonus Payment that
would have paid on June 1, 2006 had he remained employed through that date in the amount of one
hundred twenty thousand dollars ($120,000), less applicable withholding.
a. Employee Release. In exchange for the consideration set forth in this Agreement,
Employee does hereby release and forever discharge the “Company Releasees” herein, consisting of
the Company, its parent, subsidiary and affiliate corporations, and each of their respective past
and present parents, subsidiaries, affiliates, associates, owners, members, stockholders,
predecessors, successors, assigns, employees, agents, directors, officers, partners,
representatives, lawyers, and all persons acting by, through, under, or in concert with them, or
any of them, of and from any and all manner of claims or causes of action, in law or in equity, of
any nature whatsoever, known or unknown, fixed or contingent (hereinafter called “Claims”), that
Employee now has or may hereafter have against the Company Releasees by reason of any and all acts,
omissions, events or facts occurring or existing prior to the date hereof. The Claims released
hereunder include, without limitation, any alleged breach of any express or implied agreement
(including, without limitation, the Employment Agreements); any alleged torts or other alleged
legal restrictions relating to Employee’s employment by the Company and the termination thereof;
and any alleged violation of any federal, state or local statute or ordinance including, without
limitation, Title VII of the Civil Rights Act of 1964, as amended, 42 USC Section 2000, et
seq.; Americans with Disabilities Act, as amended, 42 U.S.C. § 12101 et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 701 et seq.;
Civil Rights Act of 1866, and Civil Rights Act of 1991; 42 USC Section 1981, et
seq.; Equal Pay Act, as amended, 29 USC Section 206(d); regulations of the Office of
Federal Contract Compliance, 41 CFR Section 60, et seq.; The Family and Medical
Leave Act, as amended, 29 U.S.C. § 2601 et seq.; the Fair Labor Standards Act of
1938, as amended, 29 U.S.C. § 201 et seq.; the Employee Retirement Income Security
Act, as amended, 29 U.S.C. § 1001 et seq.; and the California Fair Employment and
Housing Act, California Government Code Section 12940, et seq. This release shall
not apply to the Company’s obligations under this Agreement or to the Company’s obligations under
applicable law, including, without limitation, California Labor Code Section 2802, to indemnify,
defend, and hold Employee harmless from and against any claims asserted by any person or entity
against Employee arising from or related to Employee’s employment with the Company.
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b. Unknown Claims.
Employee acknowledges that Employee is 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 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.”
Employee, being aware of said code section, hereby expressly waives any rights Employee may have
thereunder, as well as under any other statutes or common law principles of similar effect.
c. No Assignment. Employee represents and warrants to the Company Releasees that
there has been no assignment or other transfer of any interest in any Claim. Employee agrees to
indemnify and hold harmless the Company Releasees from any liability, claims, demands, damages,
costs, expenses and attorneys’ fees incurred as a result of any person asserting such assignment or
transfer of any right or claims under any such assignment or transfer from Employee.
d. No Actions. Employee agrees that if Employee hereafter commences, joins in, or in
any manner seeks relief through any suit arising out of, based upon, or relating to any of the
Claims released hereunder or in any manner asserts against the Company Releasees any of the Claims
released hereunder, then Employee will pay to the Company Releaseees against whom such Claim(s) is
asserted, in addition to any other damages caused thereby, all attorneys’ fees incurred by such
Company Releasees in defending or otherwise responding to said suit or Claim.
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legitimate inquiry is made to Employee, he may state that he formerly was associated with the
Company, identify his association and responsibilities and give the dates of his association.
10. Choice of Law and Venue. The Parties acknowledge and agree that this Agreement
shall be interpreted in accordance with California law. Any actions arising out of or relating to
this Agreement or Employee’s service with the Company 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, unless subject to arbitration, in which case they shall be filed in
accordance with the Parties’ arbitration agreement.
12. 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
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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.
[Remainder of Page Intentionally Left Blank]
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| “COMPANY” IsoTis, Inc., a Delaware corporation |
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| By: | /s/ Xxxxxx Xxxxxxx | |||
| Name: | Xxxxxx Xxxxxxx | |||
| Title: | CEO | |||
| |
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| “EMPLOYEE” |
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| /s/ Xxxx X. Xxxxx | ||||
| Xxxx Xxxxx | ||||
[Signature Page to Separation and General Release Agreement]
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