Sipex Corporation Separation Agreement and General Release
Exhibit 10.2
Sipex Corporation
Separation Agreement and General Release
This Separation Agreement and General Release (this “Agreement”) is made by and between
Xxxxxx X. Xxxxxxxxxxx (“Employee”) and Sipex Corporation, a Delaware corporation (the “Company”).
Employee and the Company are collectively referred to herein as the “Parties.”
RECITALS
WHEREAS, Employee was employed by the Company;
WHEREAS, the Employee and the Company entered into an offer letter dated September 11, 2002
(“the Offer Letter”);
WHEREAS, the Employee and the Company entered into an Employment Agreement dated September 30,
2002 (“the Confidentiality Agreement”);
WHEREAS, the Company and Employee entered into a Stand-Alone Stock Option Agreement dated
September 30, 2002, as amended by that certain memorandum authored by the Company’s Director of
Human Resources, dated September 23, 2003 and subsequently approved by the Company’s Board of
Directors, and Non-Qualified Stock Option Agreements dated October 1, 2003 and December 20, 2004
granting Employee the option to purchase shares of the Company’s common stock subject to the terms
and conditions of the Company’s 1999 and 2002 Stock Option Plans and the Stock Option Agreements
(collectively, the “Stock Agreements”);
WHEREAS, Employee’s employment with the Company terminated on September 2, 2005;
WHEREAS, the Parties 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 out of, or 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:
AGREEMENT
1. Termination of Employment. Company and Employee acknowledge and agree that
Employee’s employment with the Company terminated on September 2, 2005.
2. Consideration.
(a) The Company agrees to pay Employee $115,000, less applicable withholding, to be paid
periodically in accordance with the Company’s regular payroll practices. The first of these
payments shall not be due until 8 (eight) business days after this agreement is signed. Employee
acknowledges that Company will issue to him a Form W-2 in connection with said payment.
(b) Stock. The Parties agree that for purposes of determining the number of shares
of the Company’s common stock which 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. On the date of Termination 50% of any unvested shares under the Stock Agreements
shall immediately vest and become exercisable and together with all other shares vested as of the
termination date and upon approval of the Company’s board of directors or the Company’s
compensation committee, remain exercisable twelve months from the time the options become
exercisable under the Federal and State security laws until the earlier of (i) the original term of
the option or (ii) twelve (12) months from the date the options become exercisable under the Federal and State security laws. The exercise of any stock
options shall continue to be subject to the terms and conditions of the Stock Agreements and the
1999 and 2002 Stock Option Plans. Company agrees to notify Employee when the options become exercisable.
(c) Benefits. Employee’s health insurance benefits shall cease on September 2, 2005,
subject to Employee’s right to continue his health insurance under COBRA. The Employee has the
option, at the Employee’s own expense, to extend the health insurance coverage currently provided
by the Company for a period of 18 months from the Termination Date pursuant to the terms and
conditions of COBRA. The Employee acknowledges that the Employee has sixty (60) days from the
Termination Date (or receipt of this notice, whichever is later) to notify the Company in writing
of the Employee’s election to so continue such coverage. Your first monthly premium covering the
period September 3, 2005 through September 30, 2005, will be paid by Sipex. Employee’s
participation in all other benefits and incidents of employment (including, but not limited to, the
accrual of vacation and paid time off, and the vesting of stock options) ceased on the Termination
Date.
(d) Tax Treatment. The Company makes no representations or warranties with respect
to the tax consequences of the payment of any sums to Employee under the terms of this Agreement,
including the payment made to Employee’s attorney. Employee agrees and understands that, with the
exception of the employer withholding addressed in paragraph 1(a) above, he is responsible for payment of any local,
state and/or federal taxes on the sums paid hereunder by the Company and any penalties or
assessments thereon. Employee further agrees to indemnify and hold the Company harmless from any
claims, demands, deficiencies, penalties, assessments, executions, judgments, or recoveries by any
government agency against the Company for any amounts claimed due on account of Employee’s failure
to pay federal or state taxes or damages sustained by the Company by reason of any such claims,
including reasonable attorney fees.
3. Confidential Information. Employee shall continue to comply with the terms and
conditions of the Confidentiality Agreement (a copy of which is attached hereto as Exhibit A) and
maintain the confidentiality of all of the Company’s confidential and proprietary information.
Employee shall also return to the Company all of the Company’s property, including all confidential
and proprietary information, and all documents and other information that Employee obtained in
connection with his employment with the Company, on or before the Effective Date of this Agreement.
Such information includes, but is not limited to, all customer lists, equipment, records, data,
notes, reports, proposals, correspondence, specifications, drawings, blueprints, sketches,
materials, or other documents or property belonging to the Company, that were in the Employee’s
possession or control. The Employee represents that the Employee has not retained reproductions or
copies of any of the above, whether in tangible, electronic, or other form.
4. Payment of Salary. Employee acknowledges and represents that the Company has paid
the Employee all salary, wages, bonuses, incentive pay, commissions, profit-sharing, reimbursable
expenses, accrued vacation, interest, stock, stock options, outplacement costs, fees and any and
all other benefits and compensation due to Employee. The Employee acknowledges that the Company
does not owe the Employee any additional amount (other than the consideration provided for in
paragraph 1 of
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this Agreement) and will not owe the Employee any additional amounts based on the
occurrence of any future events.
5. Release of Claims. The Parties agree that the foregoing consideration represents
settlement in full of all outstanding obligations owed by each party to the other, including their
respective current and former: officers, directors, employees, agents, investors, attorneys,
shareholders, administrators, affiliates, divisions, subsidiaries, predecessor and successor
corporations and assigns (the “Releasees”). The Parties, on behalf of themselves and on behalf of
their respective current and former: officers, directors, employees, agents, investors, attorneys,
shareholders, administrators, affiliates, divisions, subsidiaries, predecessor and successor
corporations, heirs, family members, executors, agents, and assigns, hereby fully and forever
release each other and the other Releasees 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 they 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 or the termination of that relationship (with the exception of any claims for
unemployment or workers’ compensation to the extent applicable law provides that those claims may
not be released);
(b) any and all claims relating to, or arising from, Employee’s right to purchase, or actual
purchase of, shares of Company stock, including, but not limited to, 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; harassment; 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; defamation; libel; slander; negligence; personal injury;
assault; battery; invasion of privacy; false imprisonment; and conversion;
(d) any and all claims for violation of the federal, or any state, constitution, and 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 Older Workers Benefit Protection Act, the Americans with Disabilities Act of 1990,
the Rehabilitation Act of 1973, the Fair Labor Standards Act, the Employee Retirement Income
Security Act of 1974, the Family and Medical Leave Act, the Worker Adjustment and Retraining
Notification Act, the Fair Credit Reporting Act, the California Fair Employment and Housing Act,
the California Family Rights Act, and the California Labor Code;
(e) any and all claims arising out of any other laws and regulations relating to employment
or employment discrimination;
(f) any and all claims 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
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(e) 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.
Notwithstanding, the Parties agree that nothing herein shall constitute a waiver or release of any
claims the Company may have against Employee for fraud, embezzlement, or any other criminal
conduct. This release does not extend to any obligations incurred under this Agreement.
6. 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 the 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 twenty-one (21) days within which to consider this Agreement;
(c) he has seven (7) days following his execution of this Agreement to revoke this Agreement;
(d) this ADEA waiver 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 impose any
condition precedent, penalties or costs for doing so, unless specifically authorized by federal
law.
7. Civil Code Section 1542. The Parties represent that they are not aware of any claims
against any of the Releasees. The Parties also acknowledge that they have been advised to consult
with legal counsel and are familiar with the provisions of California Civil Code Section 1542,
which provide 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.
The Parties, being aware of this 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.
8. No Pending or Future Lawsuits. The Parties represent that they have no lawsuits,
claims, or actions pending in their respective names, or on behalf of any other person or entity,
against the other party or any of the other Releasees. The Parties also represent that they do not
intend to
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bring any claims on their own behalf or on behalf of any other person or entity against
the other party or any of the other Releasees.
9. Nondisparagement. The Employee agrees to refrain from any defamation, libel or
slander of the Company or its products, services, officers, directors, employees, or other
representatives. The Employee further agrees to refrain from any tortious interference with the
contracts and relationships of the Company. All inquiries by potential future employers of
Employee will be directed to Sipex’s Human Resources Department, and the Company will only state
the following: Employee’s last position and dates of Employment, and any other information and/or
documentation legally required to be disclosed.
10. No Cooperation With Third Parties. Employee agrees that he 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 Company
and/or any officer, director, employee, agent, representative, shareholder or attorney of Company,
unless under a subpoena or other court order to do so. Employee further agrees to immediately
notify Xxxxxx Xxxxxxx, General Counsel of the Company, upon receipt of any such court order,
subpoena, or any legal discovery device, including any such court order, subpoena or legal
discovery device that seeks or might require the disclosure or production of the existence or terms
of this Agreement. Employee further agrees to furnish, within three (3) business days of its
receipt, a copy of such court order, subpoena or legal discovery device to the Company.
Notwithstanding the foregoing or any other provision of this Agreement, each Party understands and
agrees that both the Company and Employee shall cooperate fully with the Securities and Exchange
Commission with respect to any inquiry or investigation it undertakes in connection with the Matter
of Sipex Corporation (SF2938), any other governmental investigations or actions that might be
brought by the Securities and Exchange Commission or the Department of Justice or any related
issues. Notwithstanding, nothing herein shall be construed so as to limit Employee’s right to
assert any constitutional rights or privileges he may enjoy in connection with said investigations,
actions or matters.
11. Cooperation with Company. Employee agrees that Employee shall cooperate fully
with the Company in the resolution of any matters in which Employee was involved in during the
course of Employee’s employment, or about which Employee has knowledge, including but not limited
to any inquiry or investigation undertaken by the Securities and Exchange Commission with respect
to the Matter of Sipex Corporation (SF2938), any other governmental investigations or actions that
might be brought by the Securities and Exchange Commission or the Department of Justice any other
legal matters, including the defense or prosecution of any claims or actions now in existence or
which may be brought or threatened in the future against or on behalf of the Company, including any
claims or actions against its officers, directors and employees.
Employee’s cooperation in connection with such matters, actions and claims shall include, without
limitation, being available to consult with the Company regarding legal matters in which Employee
has been involved or about which Employee has knowledge; assisting the Company in preparing for any
proceeding related to such matters (including, without limitation, depositions, consultation,
discovery, hearings or trial); to provide affidavits reflecting truthful written testimony; to
assist with any audit, inspection, hearing, proceeding or other inquiry; and to act as a witness to
provide truthful testimony in connection with any hearing, litigation or other legal
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proceeding affecting the Company. Employee further agrees that should Employee be contacted (directly or
indirectly) by any person or entity adverse to the Company, or any representative of such person or
entity, Employee shall promptly (no later than within 48 hours of such contact), notify Xxxxxx
Xxxxxxx, General Counsel at the Company. In the event the Company specifically requests the
Employees assistance in the matters described above, the Employee shall be reimbursed for any
documented and reasonable fees and expenses incurred in connection with providing such cooperation
under this Section. Specifically, the Company agrees that it shall reimburse Employee for his time
at the hourly rate of $200.00 per hour, provided that in order to be reimbursed, the Company must
request such service and the Company’s request for service or assistance must be made in writing.
Notwithstanding, nothing herein shall be construed
so as to limit Employee’s right to assert any constitutional rights or privileges he may enjoy in
connection with said investigations, actions or matters.
12. Non-Solicitation. Employee agrees that for a period of twelve (12) months immediately
following the Effective Date of this Agreement, Employee shall not directly or indirectly solicit
any of the Company’s employees to leave their employment at the Company.
13. 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,
previously or in connection with this Agreement, shall be construed to be: (a) an admission of the
truth or falsity of any claims made, or (b) an admission by either party of any fault or liability
whatsoever to the other party or to any third party. This Agreement will be given the maximum
protection allowable under California Evidence Code Section 1152 and/or any other state or Federal
provisions of similar effect.
14. Breach. The Parties acknowledge and agree that any breach of any provision of
this Agreement, except as permitted by paragraph 6(e), shall constitute a material breach of this
Agreement and shall entitle the Company immediately to recover and/or cease the consideration
provided to Employee under this Agreement.
15. Costs. With the exception of the payment referenced in paragraph 1(b) above, the
Parties shall each bear their own costs, expert fees, attorney fees and other fees incurred in
connection with the preparation of this Agreement.
16. Arbitration. The Parties agree that any and all disputes arising out of, or relating
to, the terms of this Agreement, their interpretation, and any of the matters herein released,
shall be subject to binding arbitration in Santa Xxxxx County before the American Arbitration
Association under its National Rules for the Resolution of Employment Disputes. 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 attorney fees and costs. 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 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.
17. Attorney’s Fees. If any action at law or in equity is brought to interpret or
enforce the terms of this Agreement, the prevailing party will be entitled to recover its costs and
expenses from the other party, including the costs of mediation, arbitration, litigation, court
fees, plus reasonable attorneys’ fees,
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incurred in connection with such action, in addition to any
other relief to which such prevailing party may be entitled.
18. Entire Agreement. This Agreement represents the entire agreement and
understanding between the Parties concerning the subject matter of this Agreement and the
Employee’s relationship with the Company, and supersedes and replaces any and all prior
understandings, negotiations and agreements, written or oral, concerning the subject matter of this
Agreement and Employee’s relationship with the Company, with the exception of the Confidentiality
Agreement, and the Stock Agreements.
19. 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 their authorized representatives.
20. 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.
21. No Waiver. The failure of the Company 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.
22. Severability. In the event that any provision in this Agreement 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.
23. Governing Law. This Agreement shall be construed, interpreted, governed and
enforced in accordance with the laws of the State of California, without regard for choice-of-law
provisions.
24. Effective Date. This Agreement is effective after it has been signed by both parties
and after eight (8) days have passed following the date Employee signed the Agreement, provided
Employee does not revoke the Agreement before that time per paragraph 6(c), (the “Effective Date”).
25. 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.
26. Voluntary Execution of Agreement. This Agreement is executed voluntarily and with the
full intent of releasing all claims, and without any duress or undue influence by any of the
Parties. 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.
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IN WITNESS WHEREOF, the Parties have executed this Agreement on the dates set forth below.
| NAME | Sipex Corporation | |||||||||||
| Dated: September 2, 2005 | Dated: September 2, 2005 | |||||||||||
| /s/ Xxx Xxxxxxxxxxx |
By: | /s/ Xxxxx X. Xxxxxx |
||||||||||
Xxx Xxxxxxxxxxx |
Xxxxx X. Xxxxxx | |||||||||||
| Printed Name | Printed Name and Title | |||||||||||
| Address: | Address: | |||||||||||
00000 Xxxxx Xxxxxx |
||||||||||||
| 000 Xxxxx Xxxxxxxx Xxxxx | ||||||||||||
| Xxxxxxxx XX 00000 | ||||||||||||
| Xxxxxxxx, XX 00000 |
||||||||||||
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