EXHIBIT 10.28
SEPARATION AGREEMENT
THIS AGREEMENT ("Agreement") is entered into as of the 7th day of August,
2003, by and between SCOLR, Inc., a Delaware corporation (the "Company") and
Xxxxx X. Xxxxxx ("Xxxxxx") in order to provide the terms and conditions of
Xxxxxx'x separation of employment, and to fully and completely resolve any and
all issues that Xxxxxx might have in connection with his relationship with the
Company and any related or affiliated Companies and the termination of such
relationships.
NOW, THEREFORE, in consideration of the mutual promises and conditions
contained herein, the parties agree as follows:
1. Termination of Employment Relationship and Separation. Xxxxxx'x employment
with the Company shall cease effective August 7, 2003 (the "Separation
Date"). All of Xxxxxx'x wages and employee benefits (except as otherwise
provided herein) will also cease as of the Separation Date. The parties
agree that Xxxxxx will be paid accrued wages through the Separation Date
and will be paid for two weeks of accrued vacation, both computed at his
current rate of compensations and less lawfully required witholdings.
2. Resignation. Xxxxxx hereby resigns from all employee and officer and
Director positions with the Company and its subsidiaries; provided,
however, that Xxxxxx shall continue as a director of the Company for the
remainder of his term or until such time as he determines (in his
discretion) that his resignation would be appropriate.
3. Bonus. Xxxxxx shall receive a bonus of $100,000 in recognition of services
rendered to the Company and in consideration of the execution of this
Agreement.
4. Stock Options. Xxxxxx has been granted stock options (the "Options")
exercisable for up to 800,000 shares of the Company's common stock. The
terms of the Options are hereby amended as follows:
4.1 The Options shall become vested and immediately exercisable as to an
aggregate of 480,000 shares ("Vested Options"). The remaining
320,000 options may be terminated by the Company. Xxxxxx may receive
additional option grants during the period of his service as a
director of the Company and such options shall vest in accordance
with the terms of the respective grants and the Company's 1995 Stock
Option Plan (the "Plan").
4.2 The Vested Options shall remain exercisable until the later of close
of business on December 31, 2004, or until Xxxxxx ceases to serve as
a director of the Company and for such period thereafter as provided
in the applicable Option grant and in the Plan.
4.3 On the later of December 31, 2004, or when Xxxxxx ceases to serve as
a director of the Company and such period thereafter that the
Options are exercisable in accordance with the terms of the Option
grant and the Plan, any portion of the Options remaining unexercised
shall be cancelled and shall revert back to the Plan.
5. Attorney's Fees. The Company shall pay Xxxxxx'x reasonable attorney's fees
incurred in connection with the negotiation, drafting and review of this
Agreement and the Advisory Agreement in an amount not to exceed $2,000
6. Waiver of Claims. In return for the benefits conferred by this Agreement
and other related events, Xxxxxx, on behalf of himself and his marital
community, heirs, executors, administrators and assigns, hereby releases
in full, and forever discharges, acquits, and holds harmless, the Company,
including any of the Company's past or present parent, subsidiary or
otherwise affiliated (through common ownership to any extent or otherwise)
corporations, partnerships, or other business enterprises, and all of its
or their past or present affiliates, related entities, partners,
subsidiaries, insurers, predecessors, successors, assigns, directors,
officers, shareholders, attorneys, accountants, representatives, agents
and employees (these entities/persons together with the Company are
collectively referred to as "Associated Persons"), from any and all
claims, disputes, suits, demands, causes of action, liabilities, damages,
expenses and obligations of every nature, character and kind (collectively
"Claims") that Xxxxxx may possess, whether known or unknown, which may now
exist or hereafter may be discovered, specifically including without
limitation any and all Claims arising from or relating to Xxxxxx'x
employment or relationship with the Company, or the Separation of such
employment; provided that this release does not Claims arising under the
express terms of this Agreement and since it is the Equal Employment
Opportunity Commission's position that a right to file a claim cannot be
waived, this release does not include the right to file a claim with the
Equal Employment Opportunity Commission (although Xxxxxx expressly waives
his right to obtain any personal relief or damages related to any EEOC
claim or charge). This release includes, but is not limited to, any Claims
that Xxxxxx might have for additional compensation, including without
limitation any Claim for any past, current or future wages, bonuses,
incentive payments, severance or benefits and applies to Claims for
damages or other personal remedies that he might have under federal, state
and/or local law dealing with employment, contract, wage and hour, civil
rights or any other matters, including, by way of example and not
limitation, applicable civil rights laws, Title VII of the Civil Rights
Act of 1965, the Post-War Civil Rights Act of 1964, the Post-War Civil
Rights Acts (42 USC Sections 1981-1988), the Age Discrimination in
Employment Act, the Americans with Disabilities Act, the Family and
Medical Leave Act, the Rehabilitation Act of 1973, the Equal Pay Act of
1963, Executive Order 11246, Washington's Law Against Discrimination,
Chapter 49.60 RCW, and Washington's Minimum Wage Act, Chapter 49.46 RCW,
and any regulations under such laws. This release further applies to any
Claims or right to personal damages or other personal legal or equitable
remedies that Xxxxxx may have as a result of filing any complaint, charge
or other action before any administrative agency. This release shall not
affect any reimbursement rights Xxxxxx may have under any medical
insurance or any accrued rights under any retirement savings plan and
shall not affect or include any
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rights he now has or may have in the future as a shareholder or
stockholder of the Company or any related or affiliated company or entity
nor does it nor will it affect or include any rights he has to
indemnification by the Company for claims against him by third parties,
and such indemnification rights shall remain in full force and effect
beyond the term of this Agreement. XXXXXX ACKNOWLEDGES AND AGREES THAT
THROUGH THIS RELEASE HE IS GIVING UP ALL RIGHTS AND CLAIMS OF EVERY KIND
AND NATURE WHATSOEVER, KNOWN OR UNKNOWN, CONTINGENT OR LIQUIDATED, THAT HE
MAY HAVE AGAINST THE COMPANY, INCLUDING ASSOCIATED PERSONS, EXCEPT FOR THE
RIGHTS SPECIFICALLY EXCLUDED ABOVE AND THOSE RIGHTS PROVIDED HEREIN.
Similarly, in return for the benefits conferred by this Agreement and
other related events, the Company hereby releases in full, and forever
discharges acquits, and holds harmless, Xxxxxx, from any and all claims,
disputes, suits, demands, causes of action, liabilities, damages, expenses
and obligations of every nature, character and kind (collectively
"Claims") that the Company may possess, whether known or unknown, which
may now exist or hereafter may be discovered, specifically including
without limitation any and all Claims arising from or relating to Xxxxxx'x
employment with the Company, or the Separation of such employment and/or
his role or status as an officer, director and agent of the Company.
7. Indemnification. To the fullest extent authorized or permitted by the laws
of the State of Delaware and the Company's Certificate of Incorporation,
the Company shall defend and indemnify Xxxxxx against liability in
connection with any proceeding to which Xxxxxx is made or is threatened to
be made a party by reason of the fact that he is or was an officer or
director of the Company.
8. Non-Admission of Liability. The Company is offering these benefits to
Xxxxxx due to its desire to have an amicable separation of employment with
him and in recognition of his past contributions to the Company. This
Agreement shall not be construed as an admission by the Company of any
liability to Xxxxxx, breach of any agreement between the parties, or
violation by the Company of any statute or regulation. Xxxxxx is accepting
these benefits due to his desire to have an amicable separation of
employment from the Company. This Agreement shall not be construed as an
admission by Xxxxxx of any liability to the Company, breach of any
agreement between the parties, or violation by Xxxxxx of any statute or
regulation.
9. Confidentiality. Xxxxxx and the Company executed a Proprietary Information
and Invention Agreement dated June 8, 2000 which remains in full force and
effect.
10. Reference. The Company agrees to provide Xxxxxx a favorable letter of
recommendation executed by the Chairman of the Company's Board of
Directors for Xxxxxx'x use with respect to prospective employers, in such
form as the parties shall reasonably agree.
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11. Miscellaneous.
11.1 Entire Agreement. This document is the entire, final and complete
agreement and understanding of the parties with respect to the
subject matter hereof, and supersedes and replaces all written and
oral agreements and understandings heretofore made or existing by
and between the parties or their representatives with respect
thereto.
11.2 Waiver. No waiver of any provision of this Agreement shall be
deemed, or shall constitute, a waiver of any other provisions,
whether or not similar, nor shall any waiver constitute a continuing
waiver. No waiver shall be binding unless executed in writing by the
party making the waiver.
11.3 Binding Effect. All rights, remedies and liabilities herein given to
or imposed upon the parties shall extend to, inure to the benefit of
and bind, as the circumstances may require, the parties and their
respective heirs, personal representatives, administrators,
successors and permitted assigns.
11.4 Amendment. No supplement, modification or amendment of this
Agreement shall be valid, unless the same is in writing and signed
by all parties hereto.
11.5 Severability. In the event any provision or portion of this
Agreement is held to be unenforceable or invalid by any court of
competent jurisdiction, the remainder of this Agreement shall remain
in full force and effect and shall in no way be affected or
invalidated thereby.
11.6 Enforcement. In the event that there is a breach of this Agreement
by either party or noncompliance with the terms contained herein,
the nondefaulting or prevailing party shall be entitled to recovery
of any reasonable attorney's fees and costs incurred in enforcing
this Agreement.
11.7 Governing Law and Venue. This Agreement and the rights of the
parties hereunder shall be governed, construed and enforced in
accordance with the laws of the State of Washington, without regard
to its conflict of law principles. Any suit or action arising out of
or in connection with this Agreement, or any breach hereof, shall be
brought and maintained in the federal or state courts in Seattle,
Washington. The parties hereby irrevocably submit to the
jurisdiction of such courts for the purpose of such suit or action
and hereby expressly and irrevocably waive, to the fullest extent
permitted by law, any objection it may now or hereafter have to the
venue of any such suit or action in any such court and any claim
that any such suit or action has been brought in an inconvenient
forum.
11.8 Counterparts. This Agreement may be executed by the parties
individually or in separate counterparts, each of which shall be an
original, and each of which taken together shall constitute one in
the same agreement.
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11.9 Further Acts. The parties agree to execute such additional documents
and take such other actions as are reasonably necessary to implement
the terms of this Agreement.
12. No Pressure or Coercion. Xxxxxx acknowledges that he has read this
Agreement and is being given an opportunity to consider it for up to
twenty-one days, although he may sign it and deliver it to the Company
during the twenty-one day period. Xxxxxx has been advised to discuss it
with financial and legal counsel of his choice. The parties further
acknowledge that he may revoke this Agreement within seven (7) days after
he has signed and delivered it. Only after that seven-day period has
passed, will the obligations under this Agreement become effective.
IN WITNESS WHEREOF, the parties have executed this agreement freely,
voluntarily and with a complete understanding of its terms and present and
future effect as of the date set forth above.
XXXXX X. XXXXXX SCOLR, INC.
/s/ XXXXX X. XXXXXX /s/ Xxxxxx X. Xxxx
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By: Xxxxxx X. Xxxx
Title: Director and Chairman of
Compensation Committee
Date: Date:
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