EXHIBIT 10.22
SEPARATION AND RELEASE AGREEMENT
This Separation and Release Agreement (this "AGREEMENT") is made and
entered into as of Sepember 29, 2003, by and between BioSource International,
Inc., a Delaware Corporation (the "COMPANY") and Xxxxxxx Xxxxxxxxxxx
("EXECUTIVE").
RECITALS:
A. On October 15, 2001, Executive commenced his employment with
the Company, serving as the Company's President and Chief Executive Officer,
pursuant to that certain Executive Employment Agreement between Executive and
the Company dated September 24, 2001 (the "EMPLOYMENT AGREEMENT").
B. Executive has suffered a disability and has requested that he
be entitled to commence an indefinite leave of absence from his employment with
the Company, and the Company has accepted Executive's request without any
obligation of continued employment following such leave of absence.
C. Without committing to any future obligations in respect of
Executive's future employment by the Company, and in full and final settlement
of all actual and potential differences between Executive and the Company
relating to Executive's employment with the Company and Executive's desire to
commence an indefinite leave of absence, the Company desires to compensate
Executive on the basis set forth herein and Executive is willing to release the
Company from any and all liability arising out of or relating to Executive's
employment with the Company, all on the terms and subject to the conditions set
forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and Executive agree as
set forth below.
DISABILITY LEAVE OF ABSENCE FROM EMPLOYMENT.
1. The Company and Executive acknowledge that Executive will
commence a disability leave effective as of the date of this Agreement and until
December 31, 2004 (the "LEAVE PERIOD"), and that following the Leave Period, the
Company will have no obligation to restore or continue Executive's employment
with Company.
2. The Company and Executive agree that the Employment Agreement
is terminated, and that Executive's leave of absence shall be governed
exclusively by the terms and conditions of this Agreement. In addition,
Executive hereby resigns his position as President and Chief Executive Officer
and as a member of the Board of Directors of the Company, effective as of the
date of this Agreement.
3. During the portion of the Leave Period commencing on the date
of this Agreement and ending at the close of business on December 31, 2003:
3.1. the Company will pay to Executive the difference
between Executive's current base salary and any amount received by Executive
under the Company's disability insurance plans and pursuant to any governmental
disability benefits;
3.2. the Company will continue to pay the Company's
portion of Executive's Blue Cross and Kaiser health insurance benefits, and will
continue to do so until March 31, 2004;
3.3. the Company will continue to provide Executive with
the same life insurance benefits currently provided to Executive and will
continue to do so until March 31, 2004; and
3.4. no "special terminating event," as that term is
defined in Executive's Stock Option Agreements identified on Schedule A hereto
(the "OPTIONS"), shall be deemed to have occurred with respect to any of
Executive's Options, such that the Options, to the extent not fully vested on
the date hereof, will continue to vest.
4. During the portion of the Leave Period commencing on January
1, 2004 and ending at the close of business on December 31, 2004:
4.1 the Company will pay to Executive the difference
between sixty percent (60%) of Executive's current base salary and any amount
received by Executive under the Company's disability insurance plans and
pursuant to any governmental disability benefits;
4.2 on or before April 1, 2004, the Company shall deliver
a notice to Executive and Executive shall thereafter have the right to make an
election to continue Executive's Blue Cross and Kaiser health insurance benefits
through the provisions of the Consolidated Omnibus Budget Reconciliation Act of
1985 ("COBRA"), and for the period from April 1, 2004 through December 31, 2004,
the Company will pay all costs associated with the continuation of such COBRA
benefits to Executive; PROVIDED, that effective January 1, 2005 through
September 30, 2005, Executive will pay all costs associated with the
continuation of such COBRA benefits to Executive;
4.3 on or between April 1, 2004 and September 30, 2004,
Executive must apply for a Waiver of Premium Extension, as defined under the
terms of the Company's life insurance policy, and provide the Company with such
Waiver in the form contained in a notice which shall be delivered to Executive
on or before April 1, 2004, and provided that the Company's insurer determines
that Executive's disability is continuing, Executive will continue to receive
the life insurance benefits currently provided to Executive until the earlier of
the date the Company's insurer determines Executive to no longer be disabled,
and the date Executive reaches the age of seventy (70);
4.4 on September 30, 2005,; if Executive is still
suffering from a disability, the Company shall deliver a notice to Executive and
Executive shall thereafter have the right to make an election to further
continue Executive's Blue Cross and Kaiser health
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insurance benefits through the provisions of COBRA for the period from October
1, 2005 through August 31, 2006; PROVIDED, that effective Executive will pay all
costs associated with the continuation of such COBRA benefits to Executive
during such period; and
4.5 as of December 31, 2003, a "special terminating
event" shall be deemed to have occurred with respect to the Options, such that
the Options, to the extent not fully vested on the date hereof, will cease to
vest, and thereafter be exercisable pursuant to their terms for a period of one
year.
5. Executive acknowledges and expressly agrees that the foregoing
compensation is in lieu of the payment of all salary, bonus, management
incentive payments, accrued vacation pay, accrued PTO time, and all other monies
and benefits from the Company to which Executive is entitled, and that the
Company shall have no further obligation to Executive except as expressly set
forth in this Agreement.
6. Executive acknowledges and agrees that other than as set forth
in the Options with respect to the exercisability thereof, the benefits payable
to Executive hereunder are personal, and are not payable to Executive's heirs or
estate.
GENERAL RELEASE BY EXECUTIVE. Executive hereby agrees as follows:
1. Executive, for and on behalf of himself, his agents, heirs,
executors, administrators, and assigns, does hereby release and forever
discharge the Company and its successors and assigns, and all of its respective
agents, shareholders, directors, officers, partners, employees, representatives,
insurers, attorneys, parent companies, subsidiaries, affiliates, and joint
venturers, and each of them, from any and all claims that are based upon acts or
events that occurred on or before the date on which this Agreement becomes
enforceable, including any claim arising under any state or federal statute or
common law, including without limitation all claims relating to Executive's
employment with the Company and the termination thereof, and all claims for or
under, among other things, Title VII of the Civil Rights Act of 1964, as amended
(42 U.S.C. sections 2000e, et seq.), the Fair Labor Standards Act, including the
Equal Pay Act (29 U.S.C. section 206(d) and interpretive regulations), the
Employment Retirement Income Security Act of 1974 (29 U.S.C. sections 100, et
seq.), the Family and Medical Leave Act (29 U.S.C. sections 2601, et seq. and 29
C.F.R. Part 825), the Americans with Disabilities Act (42 U.S.C. sections 12101,
et seq.), the Age Discrimination in Employment Act, including the Older Worker
Benefits Protection Act (29 U.S.C. sections 623, et seq.), the Worker Adjustment
and Retraining Notification Act (29 U.S.C. sections 2101, et seq.), the
California Fair Employment and Housing Act (California Government Code sections
12940, et seq.), the California Family Rights Act (California Government Code
section 12945.2), the California Labor Code (expressly including Sections 203,
206, 218.5 and the Equal Pay Act, Section 1197.5), the United States and
California Constitutions, and any other federal or state law, whether statutory
or common law (the "Claims"). Executive expressly waives any and all rights
under Section 1542 of the Civil Code of the State of California 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
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the release, which if known by him must have materially
affected his settlement with the debtor.
2. Executive waives and releases any right or benefit that he has
or may have under any similar law or rule of any other jurisdiction pertaining
to the Claims. It is the intention of Executive, through this Agreement, fully,
finally, and forever to settle and release all such matters and claims relative
thereto which have existed, do now exist or may exist between the parties
arising out of or related to the Claims. In furtherance of such intention, the
release herein given shall be, and remain in effect as, a full and complete
release of such matters notwithstanding the discovery of the existence of any
additional Claims or facts relating thereto.
ADEA CLAIMS. Executive acknowledges and agrees that this Agreement
constitutes a voluntary waiver of any and all rights and claims Executive may
have as of this date, including rights or claims arising under the ADEA.
Executive has waived rights or claims pursuant to this Agreement in exchange for
consideration, the value of which exceeds payment or remuneration to which
Executive was entitled, and a portion of such additional consideration is
attributable to this ADEA portion of the Agreement. Executive has been advised
that he may consult with the attorney of his choosing concerning this Agreement
prior to executing it. Executive also has been allowed a period of at least 21
days to consider the terms of this Agreement, and in the event Executive decides
to execute this Agreement in fewer than 21 days, he has done so with the express
understanding that he has been given and declined the opportunity to consider
this Agreement for a full 21 days. Executive also understands that he may revoke
the release contained in this Agreement regarding claims under the ADEA at any
time during the seven (7) days following the date of execution of this
Agreement, and such release shall not become effective or enforceable until such
revocation period has expired.
CONFIDENTIALITY. The terms of this Agreement shall be considered
confidential and except for such disclosures as the Company may be advised by
counsel should be made in order to discharge its obligations as a public
company, the terms and conditions of this Agreement will not be publicly
released by any party without the prior written consent of the other.
GENERAL PROVISIONS.
1. NOTICES. All notices, requirements, requests, demands, claims
or other communications hereunder shall be in writing. Any notice, requirement,
request, demand, claim or other communication herender shall be deemed duly
given (i) if personally delivered, when so delivered, (ii) if mailed, two (2)
business days after having been sent by registered or certified mail,
return-receipt requested, postage prepaid and addressed to the intended
recipient as set forth below or (iii) if sent through an overnight delivery
service under circumstances by which such service guarantees next day delivery,
the date following the date so sent:
If to the Company, to: BioSource International, Inc.
000 Xxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Chief Executive Officer
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with a copy to: Xxxxxx Xxxxxxxx & Markiles, LLP
00000 Xxxxxxx Xxxx., Xxxxx 000
Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxx, Esq.
If to Executive, to: the address set forth on the signature page hereof.
Any party may change the address to which notices, requests, demands, claims and
other communications hereunder are to be delivered by giving the other party
notice in the manner herein set forth.
2. ASSIGNMENT. This Agreement and the benefits hereunder are
personal to Executive and are not assignable or transferable, even by operation
of the laws of intestacy. The Company may not assign this Agreement to any
person, firm or company; PROVIDED HOWEVER, that this Agreement and the benefits
hereunder may be assigned by the Company to any corporation into which the
Company may be merged or consolidated, and this Agreement and the benefits
hereunder will automatically be deemed assigned to any such corporation.
3. ENTIRE AGREEMENT. This Agreement and the Options contain the
entire agreement among the parties hereto with respect to the subject matter
hereof and supersedes any and all other previous written or oral negotiations,
commitments, understandings, agreements and any other writings or communications
in respect of such subject matter.
4. AMENDMENTS. This Agreement may be modified, amended,
superseded or terminated only by a writing duly signed by both parties.
5. SEVERABILITY. Any provision of this Agreement which is
invalid, illegal or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability, without affecting in any way the remaining provisions hereof
in such jurisdiction or rendering that or any other provision of this Agreement
invalid, illegal or unenforceable in any other jurisdiction.
6. NO WAIVER. Any waiver by either party of a breach of any
provisions of this Agreement shall not operate as or be construed to be a waiver
of any other breach of such provision or of any breach of any other provision of
this Agreement. The failure of either party to insist upon strict adherence to
any term of this Agreement on one or more occasions shall not be considered a
waiver or to deprive such party of the right thereafter to insist upon strict
adherence to that term or any other term of this Agreement.
7. BINDING EFFECT. This Agreement shall be binding on, and shall
inure to the benefit of, the parties hereto and their permitted assigns,
successors and legal representatives.
8. COUNTERPARTS. This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which when taken together shall constitute one and
the same document.
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9. GOVERNING LAW. This Agreement has been negotiated and entered
into in the State of California and shall be construed in accordance with the
laws of the State of California, without regard to conflicts of law principles
thereof.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed on its behalf by its duly authorized officer and Executive has executed
the same as of the day and year first above written.
THE "COMPANY"
BIOSOURCE INTERNATIONAL, INC.
By: /s/ Xxxxxxx X. Best
-----------------------------------
Name: Xxxxxxx X. Best
Title: Chief Financial Officer
"EXECUTIVE"
/s/ Xxxxxxx Xxxxxxxxxxx
-----------------------------------------
Xxxxxxx Xxxxxxxxxxx
HOME ADDRESS:
0000 Xxxxx Xxxx
Xx Xxxxxx, XX 00000-0000
Mailing Address:
XX Xxx 0000
Xx Xxxxxx, XX 00000-0000
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SCHEDULE A
OPTIONS AS OF 9/30/03
GRANT DATE EXPIRATION GRANT NUMBER OF OPTION OPTIONS OPTIONS
DATE TYPE OPTIONS EXERCISE OUTSTANDING VESTED
GRANTED PRICE
1/1/1995 1/1/2005 Non-Qualified 10,000 $2.13 8,000 8,000
9/4/1996 9/4/2006 Non-Qualified 10,000 $7.53 10,000 10,000
1/1/1997 1/1/2007 Non-Qualified 4,000 $7.63 4,000 4,000
1/1/1998 1/1/2008 Non-Qualified 4,000 $6.38 4,000 4,000
12/17/1998 12/17/2008 Non-Qualified 25,000 $2.56 25,000 25,000
12/17/1999 12/17/2009 Non-Qualified 4,000 $3.69 4,000 4,000
12/15/2000 12/15/2010 Non-Qualified 4,000 $16.56 4,000 4,000
10/15/2001 10/15/2011 Non-Qualified 280,000 $5.19 280,000 134,165
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