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.
WHEREAS, Employee and IsoTis SA were the parties to that certain Employment Agreement (the
“2006 Employment Agreement”) dated as of May 17, 2006, and Employee’s position with IsoTis SA was
Vice President of Sales.
WHEREAS, the Company acquired IsoTis SA in or about January 2007.
WHEREAS, Employee and the Company are the parties to that certain Employment Agreement dated
as of January 31, 2007, as amended by that certain Amendment to Employment Agreement dated as of
February 22, 2007 (collectively, the “2007 Employment Agreement” and with the superseded 2006
Employment Agreement, the “Employment Agreements”). Terms not defined herein and defined in the
2007 Employment Agreement shall have the meanings ascribed to them in the 2007 Employment
Agreement.
WHEREAS, Employee is currently employed by the Company as Senior Vice President of Sales (the
“Position”).
WHEREAS, the Parties wish to terminate their employment relationship subject to 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.
a. Termination Date. Employee hereby voluntarily resigns his Position and his employment with
the Company as of April 5, 2007 (the “Termination Date”). Except as otherwise provided for in this
Agreement, the rights and obligations of Employee and the Company under the Employment Agreements
shall terminate on the Termination Date and shall have no further force or effect after the
Termination Date.
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.
c. No Future Compensation or Benefits. 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, and that he has no further rights, and the Company has no further obligations under the
Employment Agreements.
d. Announcements. Employee and the Company agree that the Company may release an internal
announcement of Employee’s departure from the Company and external announcements as required by law
and/or as it deems appropriate for business purposes. With regard to the circumstances of
Employee’s departure, the announcements shall state that Employee resigned his employment with the
Company and his resignation was accepted. To the extent required by law, the Company shall report
the terms of separation.
2. Releases by Employee.
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.
3. 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 provided for in
Section 2, shall constitute or be construed as an admission of any liability whatsoever by either
Party.
4. 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.
5. No Encouragement of Actions. 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 Termination Date; provided, however, that this Section 5 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.
6. No Disparagement By Employee. Employee shall not make, or cause to be made, any
untrue statements to any person or entity that disparage, are inimical to, or damage the reputation
of, the Company, its officers, directors, employees, or agents; provided that, if a
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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.
7. No Disparagement by the Company. The Company shall not make, or cause to be made
any untrue statements to any person or entity that disparage, are inimical to, or damage the
reputation of Employee. Following Employee’s departure from the Company, the Company shall
instruct its employees to advise any third parties requesting Employee by name that Employee is no
longer with the Company and to provide the appropriate contact information for Employee.
8. Confidential Information. Employee’s obligations under Section 6 of the 2007
Employment Agreement with respect to Confidential Information of the Company shall remain in full
force and effect and shall survive the termination of the Employment Agreements.
9. 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 the Company Equipment
(excluding the Apple computer referred to in Section 1.b.(1) of this Agreement) to the Company on
or before the Termination Date.
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.
11. Sole and Entire Agreement. This Agreement represents 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, excluding any agreements concerning arbitration of disputes, confidentiality,
trade secret information, or assignment of intellectual property rights. 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.
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.
13. Headings. 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.
14. Construction of Agreement. Both Parties have been represented by, or had the
opportunity to be represented by counsel in connection with this Agreement. Any rule of
construction to the effect that ambiguities are to be resolved against the drafting party shall not
be applied in the construction or interpretation of this Agreement.
15. 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.
16. Authority to Execute this Agreement. The person or persons executing this
Agreement on behalf of a Party warrants and represents that he or she 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.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties have entered into this Separate and General Release Agreement
as of the date first set forth above.
“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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