EXHIBIT 99.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement"), is executed and delivered
effective as of March 3, 2003 (the "Effective Date"), by and between Endocare,
Inc., a Delaware corporation (the "Company"), and Xxxx X. Xxxxxxxxxx, an
individual resident of the State of California ("Employee").
1. POSITION AND RESPONSIBILITIES
A. POSITION. Employee is employed by the Company to render services to the
Company in the position of President, Radiology Division. Employee shall perform
such duties and responsibilities as are normally related to such position, in
accordance with industry standards, and any additional duties now or hereafter
reasonably assigned to Employee by the Company commensurate with such position.
Employee shall abide by the Company's rules, regulations and practices, as
adopted or modified from time to time in the Company's sole discretion.
B. OTHER ACTIVITIES. Except with the prior written consent of the Company,
Employee shall not, during the term of this Agreement, (i) accept any other
employment, or (ii) engage, directly or indirectly, in any other business
activity (whether or not pursued for pecuniary gain) that might interfere with
Employee's duties and responsibilities hereunder or create a conflict of
interest with the Company.
C. NO CONFLICT. Employee represents and warrants that Employee's execution
of this Agreement, Employee's employment with the Company and the performance of
Employee's proposed duties under this Agreement shall not violate any
obligations Employee may have to any prior employer, or any other person or
entity, including, without limitation, any obligations with respect to
proprietary or confidential information of any prior employer, or any other
person or entity.
2. COMPENSATION AND BENEFITS
A. BASE SALARY. In consideration of the services to be rendered under this
Agreement, during the first six (6) months of the Mandatory Access Period (as
defined below), the Company shall pay to Employee a base salary equal to
$220,000 per annum (the "Base Salary"). The Base Salary shall be paid in
accordance with the Company's payroll practices. For periods after the first six
(6) months of the Mandatory Access Period, the Base Salary shall remain payable
to Employee unless renegotiated upwards by Employee and the Company. For
purposes of this Agreement, the term "Mandatory Access Period" shall mean the
period beginning on the Effective Date and ending on the six (6)-month
anniversary of the Effective Date; provided, however, that, subject to the
Company's rights to terminate Employee's employment in accordance with the terms
and conditions of this Agreement, Employee and the Company may mutually elect to
continue the Mandatory Access Period for an additional period of time not to
extend beyond the third anniversary of the Effective Date.
B. BONUS. During the first six (6) months of the Mandatory Access Period,
the level of annualized cash bonus that Employee shall be eligible to receive
from the Company shall equal the level of cash bonus that Employee was eligible
to receive from the Company as of the Effective Date (i.e. 40% of Employee's
Base Salary or $88,000 per annum). For periods after the first six (6) months of
the Mandatory Access Period, the level of cash bonus that Employee shall be
eligible to receive from the Company may be renegotiated upwards by Employee and
the Company.
C. EQUITY. Upon the Effective Date, all of Employee's outstanding options
to acquire shares of the Company's common stock (the "Existing Options") shall
be cancelled and of no further force and effect. Employee acknowledges that,
upon the Effective Date, he shall no longer have any rights to purchase shares
of the Company's common stock pursuant to the Existing Options. In exchange for
the cancellation of the Existing Options, the Company shall grant to Employee
replacement options (the "Replacement Options") subject to the following terms
and conditions:
(i) The Replacement Options will be granted no earlier than six months and
one day after the Effective Date and no later than eight months after the
Effective Date.
(ii) The exercise price of the Replacement Options will be equal to the
fair market value of the Company's common stock on the grant date of the
Replacement Options, as determined in accordance with terms of the stock option
or incentive plan, if any, under with the Replacement Options are granted.
(iii) The number of shares of common stock subject to the Replacement
Options will be equal to the number of shares subject to the Existing Options,
subject to adjustments for any forward or reverse stock splits, stock dividends
and similar events that occur between the Effective Date and the date the
Replacement Options are issued.
(iv) The Replacement Options will be granted pursuant to a new option
agreement between the Employee and the Company issued under the Company's then
existing stock option or incentive plan, if any.
(v) In order to receive the Replacement Options, the Employee need not be
an employee, director or consultant of Company, a successor entity of the
Company or a subsidiary of the Company on the date that the Replacement Options
are issued.
(vi) The Replacement Options will be fully vested and exercisable on the
date of their issuance.
(vii) If the Company is acquired whether by sale, transfer of assets,
merger or similar transaction during the time period between the date the
Existing Options are cancelled and the date the Replacement Options are granted,
the Company's Board of Directors will make it a condition of the transaction
that the acquirer or successor company, as the case may be, either (A) grants
the Employee options to purchase stock of the acquirer or the successor company,
as
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the case may be, on the date the Replacement Options would have been granted or
(B) provides the Employee with participation in an equivalent cash incentive
program.
(viii) The grant of the Replacement Options shall be subject to
stockholder approval if required by The Nasdaq National Market or the stock
exchange or national market system on which the common stock of the Company is
listed provided, however, the Company shall use reasonable good faith efforts of
shares reserved under a stockholder approved plan to issue the Replacement
Options. In addition, the grant of the Replacement Options shall be subject to
compliance with applicable state and federal securities laws.
(ix) If the Existing Options are incentive stock options, the Replacement
Options will be granted as incentive stock options to the extent they qualify.
For options to qualify as incentive stock options, the value of shares subject
to options that first become exercisable by the option holder in any calendar
year cannot exceed $100,000, as determined using the option exercise price. The
excess value is deemed to be a non-qualified stock option. If the exercise price
of the Replacement Options that vest in any one calendar year is less than
$100,000, with such $100,000 reduced by the exercise price of any other
incentive stock options that vest in that calendar year, the new options should
qualify as incentive stock options. If the exercise price of the Replacement
Options that vest in any one calendar year is higher than $100,000, reduced by
the exercise price of any other incentive stock options that vest in that
calendar year, or if the Employee receives additional incentive stock options
after the cancellation of the Existing Options but before the grant of the
Replacement Options, a portion of the Replacement Options may exceed the limits
for incentive stock options. When calculating the vested portion of new
incentive stock options, any incentive stock options that become exercisable
between January 1, 2003 and the date the Replacement Options are granted must
also be accounted for. Any excess value is reallocated as non-qualified stock
options.
d. Benefits. Effective as of the Effective Date, Employee shall be
eligible to participate in the benefits made generally available by the Company
to similarly-situated employees, in accordance with the benefit plans
established by the Company, as such plans may be amended from time to time in
the Company's sole discretion.
3. AT-WILL EMPLOYMENT
A. AT-WILL TERMINATION BY COMPANY. The employment of Employee shall be
"at-will" at all times. The Company may terminate Employee's employment with the
Company at any time, without any advance notice, for any reason or no reason at
all, notwithstanding anything to the contrary contained in or arising from any
statements, policies or practices of the Company relating to the employment,
discipline or termination of its employees. Upon and after the date of such
termination, all obligations of the Company shall cease, except as set forth
below in Section 3(c).
B. AT-WILL TERMINATION BY EMPLOYEE. Employee may terminate employment with
the Company at any time for any reason or no reason at all, upon two weeks'
advance written notice. During such notice period Employee shall continue to
diligently perform all of Employee's duties
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hereunder. The Company shall have the option, in its sole discretion, to make
Employee's termination effective at any time prior to the end of such notice
period as long as the Company pays Employee all compensation to which Employee
is entitled up through the last day of the two-week notice period. Thereafter
all obligations of the Company shall cease, except as set forth below in Section
3(c).
C. QUALIFIED TERMINATION.
(i) Employee shall become entitled to the following benefits in the event
of the occurrence of a Qualified Termination (as defined below):
(A) a cash payment payable within three (3) business days following
the date of the Qualified Termination equal to two hundred percent (200%)
of both (1) Employee's base salary ($220,000) and (2) Employee's maximum
bonus eligibility for fiscal year 2002 equal to $88,000 (for a total of
$616,000);
(B) continued participation in the Company's fringe benefit plans
for twenty-four (24) months to the extent permitted under applicable law
and the terms of such plans. In the event that continued participation in
the Company's insurance benefit plans is not permissible, then Employee
shall receive a monthly payment from the Company in an amount sufficient
to enable him to purchase insurance coverage that is substantially
equivalent to what he would have received had he been able to continue to
participate in the Company's plans. This coverage also shall extend to the
spouse and dependents of the Participant who were covered by the relevant
fringe benefit plan on the Effective Date;
(C) Employee shall have no duty to mitigate either the cash payment
payable pursuant to Section 3(c)(i)(A) or the fringe benefits provide
pursuant to Section 3(c)(i)(B); provided, however, that the Company shall
not be obligated to provide to Employee any fringe benefits that are
otherwise available to Employee from another source, e.g., a subsequent
employer;
(D) The period in which the Replacement Options which are
non-qualified options may be exercised shall be extended until the second
anniversary of the Qualified Termination; and
(E) As soon as reasonably possible following the date of the
Qualified Termination, Employee will receive a $50,000 relocation
allowance (the "Relocation Allowance") and an additional payment in an
amount such that after payment by him of all taxes imposed upon the
Relocation Allowance, he retains an amount equal to $50,000. For this
purpose, it will be assumed that he is in the highest tax brackets.
(ii) The term "Qualified Termination" shall mean any of the following
events: (A) the Company terminates Employee's employment other than for Cause
(as defined below); (B) Employee terminates his employment for Good Reason (as
defined below); (C) Employee terminates his employment during the thirty
(30)-day period following the expiration of the
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Mandatory Access Period, even if such termination was not for Good Reason; or
(D) Employee's employment terminates during the Mandatory Access Period because
of the death or Disability (as defined below) of Employee.
(iii) The Company's termination of Employee's employment shall be for
"Cause" if the Company terminates Employee's employment for any of the following
reasons: (A) the willful misappropriation by Employee of the funds or property
of the Company; (B) the conviction of Employee in a court of law of, or entering
a plea of guilty or no contest to, any felony; or (C) the commission in bad
faith by Employee of any act that materially injures or could reasonably be
expected to materially injure the reputation, business or business relationships
of the Company. An event shall not constitute "Cause" unless the Company
terminates Employee within thirty (30) days of learning of the event. Also,
events that transpired prior to the Effective Date shall not be taken into
account in determining whether Employee was terminated for Cause with the sole
exception of material events brought to the Company's attention of which the
Company and its representatives are unaware and have not previously reviewed or
investigated.
(iv) Employee's termination of his employment shall be for "Good Reason"
if Employee terminates his employment for any of the following reasons: (A) the
material diminution or change of position, duties, responsibilities, authority,
or the assignment of duties materially inconsistent with Employee's prior
position; (B) the material reduction in Employee's compensation or benefits; (C)
the relocation of Employee's principal business location to an area outside of a
thirty (30)-mile radius of its current location; or (D) the failure of any
successor entity to assume in writing any obligations arising out of any
agreement between the Company and Employee upon the entity becoming a successor,
including the obligations arising under this Agreement. An event shall not
constitute "Good Reason" unless Employee voluntarily resigns within thirty (30)
days of learning of the event. Also, the Company's hiring of a new Chief
Operating Officer or Chief Financial Officer shall not be considered "Good
Reason."
(v) For purposes of this Agreement, the term "Disability" shall mean a
situation where Employee is substantially incapable, because of illness or
incapacity, to perform the essential functions of his job pursuant to this
Agreement with reasonable accommodation for a period of ninety (90) days out of
any consecutive one hundred and eighty (180)-day period.
(vi) Employee's right to receive any payments or other benefits under this
Section 3(c) is expressly conditioned upon: (A) Employee's execution of a
general release of all claims as of the date of Employee's termination, in
substantially the form attached to this Agreement as Exhibit A (the "General
Release"); and (B) Employee's compliance with his obligations under this
Agreement, the General Release and all other agreements between Employee and the
Company.
(vii) Notwithstanding anything in this Agreement to the contrary, Employee
shall be liable to repay to the Company all amounts paid by the Company to
Employee pursuant to this Section 3(c) upon either: (A) the conviction of
Employee in a court of law, or entering a plea of guilty or no contest to, any
crime directly relating to Employee's activities on behalf of the Company; or
(B) successful prosecution of an enforcement action by the Securities and
Exchange Commission against Employee relating to Employee's activities on behalf
of the Company.
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(viii) Employee acknowledges that he is beneficiary participant in that
certain Separation Benefits Plan of Endocare, Inc. dated July 17, 2002 (the
"Separation Plan"). Should a "Change of Control" (as defined in the Separation
Plan) occurs such that benefits are payable to Employee under the Separation
Plan, Employee acknowledges and agrees that the cash payments made pursuant to
Section 3(c)(i)(A) shall be reduced on a dollar-for-dollar basis by cash
benefits paid pursuant to the Separation Plan and that the Company shall not be
obligated to provide Employee any fringe benefits that are otherwise available
to Employee under the Separation Plan.
4. TERMINATION OBLIGATIONS
a. RETURN OF PROPERTY. Except as provided below in Section 4(c), Employee
agrees that all property (including, without limitation, all equipment, tangible
proprietary information, documents, records, notes, contracts and
computer-generated materials) furnished to or created or prepared by Employee
incident to Employee's employment belongs to the Company and shall be promptly
returned to the Company upon termination of Employee's employment.
b. COOPERATION. Following any termination of his employment, Employee
shall perform any and all acts requested by the Company to ensure the orderly
and efficient transition of Employee's duties. Such acts may include, but are
not limited to: (i) participating in meetings or telephone conferences; (ii)
reviewing, preparing or executing documents; and (iii) providing assistance in
connection with any litigation, investigation or audit involving the Company, or
any of its affiliates, directors, officers, employees, agents, attorneys,
representatives, stockholders, insurers, divisions, successors and/or assigns
and any related holding, parent or subsidiary corporations. Employee's
cooperation pursuant to this Section 4(b) shall not unreasonably interfere with
any future employment or business endeavors of Employee, and the Company shall
reimburse Employee for all expenses reasonably incurred in connection with such
cooperation.
c. MISCELLANEOUS BENEFITS. Following any termination of his employment,
Employee shall have the following rights: (i) to purchase his existing
Company-provided laptop computer for $500; (ii) to retain his rolodex and
personal files; and (iii) to have access to his Company voice-mail and e-mail
accounts for six (6) months from the date of such termination. In addition, the
parties acknowledge and agree that they are parties to that certain
Indemnification Agreement dated October 30, 2001 ("Indemnification Agreement"),
and acknowledge and agree that the Indemnification Agreement remains in full
force and effect and survives the termination of Employee's employment with the
Company. Provided that Employee executes the General Release and complies with
all of his obligations under this Agreement, the General Release and all other
agreements between the Company and Employee, the Company's obligations under the
Employee's Indemnification Agreement shall continue for a period of at least
seven (7) years from the date of the termination of his employment or the term
provided for by the Indemnification Agreement, whichever time period is longer.
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5. NON-DISCLOSURE OF THIRD-PARTY INFORMATION
Employee represents and warrants and covenants that Employee shall not disclose
to the Company, or use, or induce the Company to use, any proprietary
information or trade secrets of others at any time, including but not limited to
any proprietary information or trade secrets of any former employer, if any; and
Employee acknowledges and agrees that any violation of this provision shall be
grounds for Employee's immediate termination and could subject Employee to
substantial civil liabilities and criminal penalties. Employee further
specifically and expressly acknowledges that no officer or other employee or
representative of the Company has requested or instructed Employee to disclose
or use any such third-party proprietary information or trade secrets.
6. NONINTERFERENCE; NONSOLICITATION
Employee acknowledges and agrees that the Company's relationships with its
employees, consultants, customers, vendors and service providers are valuable
business assets. Accordingly, Employee agrees that, during his employment with
the Company and for a period of two (2) years after the date of any termination
of such employment, he will not (for himself or for any third party) divert or
attempt to divert from the Company any business, employee, consultant, customer,
vendor or service provider, through solicitation or otherwise, or otherwise
interfere with the Company's business or the Company's relationships with its
employees, consultants, customers, vendors and service providers.
Notwithstanding anything herein to the contrary, the parties acknowledge and
agree that Employee may lawfully compete with the Company at any time following
the termination of his employment with the Company.
7. AMENDMENTS; WAIVERS; REMEDIES
This Agreement may not be amended or waived except by a writing signed by
Employee and by a duly authorized officer of the Company. Failure to exercise
any right under this Agreement shall not constitute a waiver of such right. Any
waiver of any breach of this Agreement shall not operate as a waiver of any
subsequent breaches. All rights or remedies specified for a party herein shall
be cumulative and in addition to all other rights and remedies of the party
hereunder or under applicable law.
8. ASSIGNMENT; BINDING EFFECT
a. ASSIGNMENT. The performance of Employee is personal hereunder, and
Employee agrees that Employee shall have no right to assign and shall not assign
or purport to assign any rights or obligations under this Agreement. This
Agreement may be assigned or transferred by the Company; and nothing in this
Agreement shall prevent the consolidation, merger or sale of the Company or a
sale of any or all or substantially all of its assets.
b. BINDING EFFECT. Subject to the foregoing restriction on assignment by
Employee, this Agreement shall inure to the benefit of and be binding upon each
of the parties; the affiliates,
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officers, directors, agents, successors and assigns of the Company; and the
heirs, devisees, spouses, legal representatives and successors of Employee.
9. NOTICES
All notices or other communications required or permitted hereunder shall be
made in writing and shall be deemed to have been duly given if delivered: (a) by
hand; (b) by a nationally recognized overnight courier service; or (c) by United
States first class registered or certified mail, return receipt requested, to
the principal address of the other party, as set forth below on the signature
page of this Agreement. The date of notice shall be deemed to be the earlier of
(i) actual receipt of notice by any permitted means, or (ii) three business days
following dispatch by overnight delivery service or the United States mail.
Employee shall be obligated to notify the Company in writing of any change in
Employee's address. Notice of change of address shall be effective only when
provided in accordance with this Section 9.
10. SEVERABILITY
If any provision of this Agreement shall be held by a court or arbitrator to be
invalid, unenforceable or void, such provision shall be enforced to the fullest
extent permitted by law, and the remainder of this Agreement shall remain in
full force and effect. In the event that the time period or scope of any
provision is declared by a court or arbitrator of competent jurisdiction to
exceed the maximum time period or scope that such court or arbitrator deems
enforceable, then such court or arbitrator shall reduce the time period or scope
to the maximum time period or scope permitted by law.
11. TAXES
All amounts paid under this Agreement (including, without limitation, the Base
Salary) shall be paid less all applicable state and federal tax withholdings.
12. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
internal laws of the State of California, without regard to conflicts of law
principles.
13. INTERPRETATION
This Agreement shall be construed as a whole, according to its fair meaning, and
not in favor of or against any party. Sections and section headings contained in
this Agreement are for reference purposes only, and shall not affect in any
manner the meaning or interpretation of this Agreement. Whenever the context
requires, references to the singular shall include the plural and the plural the
singular.
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14. OBLIGATIONS SURVIVE TERMINATION OF EMPLOYMENT
Employee agrees that any and all of Employee's obligations under this Agreement
shall survive the termination of his or her employment and the termination of
this Agreement.
15. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original of this Agreement, but all of which together shall
constitute one and the same instrument.
16. AUTHORITY
Each party represents and warrants that such party has the right, power and
authority to enter into and execute this Agreement and to perform and discharge
all of the obligations hereunder; and that this Agreement constitutes the valid
and legally binding agreement and obligation of such party and is enforceable in
accordance with its terms.
17. ENTIRE AGREEMENT
This Agreement is intended to be the final, complete and exclusive statement of
the terms of Employee's employment by the Company and may not be contradicted by
evidence of any prior or contemporaneous statements or agreements.
Notwithstanding the foregoing, this Agreement shall not supersede or otherwise
affect any agreements previously or concurrently executed by Employee relating
to the Company's proprietary information or intellectual property rights, or
relating to Employee's non-interference or non-solicitation obligations relative
to the Company's business or employees. To the extent that the practices,
policies or procedures of the Company, now or in the future, apply to Employee
and are inconsistent with the terms of this Agreement, the provisions of this
Agreement shall control. Any subsequent change in Employee's duties, position or
compensation shall not affect the validity or scope of this Agreement.
18. EMPLOYEE ACKNOWLEDGEMENT
Employee acknowledges that Employee has had the opportunity to consult legal
counsel concerning this Agreement, that Employee has read and understands this
Agreement, that Employee is fully aware of its legal effect and that Employee
has entered into this Agreement freely based on Employee's own judgment and not
on any representations or promises other than those contained in this Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereby execute this Agreement as of the
Effective Date.
ENDOCARE, INC. EMPLOYEE:
By: /s/ Xxxxxxx X. Xxxxx /s/ Xxxx X. Xxxxxxxxxx
--------------------------- -------------------------
Name: Xxxxxxx X. Xxxxx Xxxx X. Xxxxxxxxxx
Title: President
Address for notices: Address for notices:
000 Xxxxxxxxxx Xxxxx -------------------------
Xxxxxx, XX 00000 -------------------------
Attention: President -------------------------
[SIGNATURE PAGE TO EMPLOYMENT AGREEMENT]
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EXHIBIT A
FORM OF GENERAL RELEASE OF CLAIMS
THIS GENERAL RELEASE OF CLAIMS (this "Release") is executed and delivered as of
[___________], 2003, by and between Endocare, Inc., a Delaware corporation (the
"Company"), and the individual named on the signature page hereof (the
"Releasor"). Each of the Company and the Releasor is referred to herein as a
"Party," and, collectively, as the "Parties."
RECITALS
WHEREAS, the Company and the Releasor previously executed and delivered an
Employment Agreement (the "Employment Agreement");
WHEREAS, pursuant to terms and conditions of the Employment Agreement, the
Releasor is entitled to certain severance payments in specific circumstances,
subject to, among other things, Releasor's execution and delivery of this
Release; and
WHEREAS, by execution hereof, the Releasor acknowledges and agrees that:
(i) this Release is a compromise of doubtful and disputed claims, if any, which
remain untested; (ii) there has not been a trial or adjudication of any issue of
law or fact herein; (iii) the terms and conditions of this Release are in no way
to be construed as an admission of liability on the part of the Company; and
(iv) the Company denies any liability and intends merely to avoid litigation
with this Release;
NOW, THEREFORE, in consideration of the foregoing recitals, and the
representations, warranties, covenants and promises contained herein, the
adequacy and sufficiency of which are hereby acknowledged, the Parties agree as
follows:
AGREEMENT
1. Release of the Company by the Releasor.
(a) The Releasor does hereby unconditionally, irrevocably and absolutely
release and discharge the Company, and its affiliates, directors, officers,
employees, agents, attorneys, representatives, stockholders, insurers,
divisions, successors and/or assigns and any related holding, parent or
subsidiary corporations, from any and all loss, liability, claims, costs
(including, without limitation, attorneys' fees), demands, causes of action, or
suits of any type, whether in law and/or in equity, related directly or
indirectly or in any way connected with any transaction, affairs or occurrences
between them and arising on or prior to the date of this Release, including, but
not limited to, the Releasor's employment with the Company, the termination of
said employment and claims of emotional or physical distress related to such
employment or termination. This Release specifically applies to any claims for
age discrimination in employment, including, without limitation, any claims
arising under the Age
Discrimination In Employment Act or any other statutes or laws that govern
discrimination in employment.
(b) The Releasor irrevocably and absolutely agrees that he will not
prosecute nor allow to be prosecuted on his behalf in any administrative agency,
whether federal or state, or in any court, whether federal or state, any claim
or demand of any type related to any of the matters released above, it being an
intention of the Parties that with the execution by the Releasor of this
Release, the Company, its officers, directors, employees, agents, attorneys,
representatives, successors and/or assigns, and any related holding, parent and
subsidiary corporations, will be absolutely, unconditionally and forever
discharged of and from all obligations to or on behalf of the Releasor related
in any way to the matters released above.
(c) The Releasor does expressly waive all of the benefits and rights
granted to him pursuant to any applicable law or regulation to the effect that:
A general release does not extend to claims which the creditor does
not know of or suspect to exist in his favor at the time of
executing the release, which if known by him must have materially
affected his settlement with the debtor.
(d) The Releasor does certify that he has read all of this Release, and
that he fully understands all of the same. The Releasor hereby expressly agrees
that this Release shall extend and apply to all unknown, unsuspected and
unanticipated injuries and damages, as well as those that are now known.
(e) The Releasor further declares and represents that no promise,
inducement or agreement not herein expressed has been made to him and that this
Release contains the full and entire agreement between the Parties relating to
the Releasor's release of claims, and that the terms of this Release are
contractual and not a mere recital.
2. Review and Revocation Periods. The Releasor represents, acknowledges
and agrees that: (i) the Company has advised him, in writing, to discuss this
Release with an attorney, and that to the extent, if any, that the Releasor has
desired, the Releasor has done so; (ii) the Company has given the Releasor
twenty-one (21) days to review and consider this Release before signing it, and
the Releasor understands that he may use as much of this twenty-one (21) day
period as he wishes prior to signing; (iii) that no promise, representation,
warranty or agreements not contained herein have been made by or with anyone to
cause him to sign this Release; (iv) that he has read this Release in its
entirety, and fully understands and is aware of its meaning, intent, contents
and legal effect; and (v) he is executing this Release voluntarily, and free of
any duress or coercion. The Parties acknowledge that for a period of seven (7)
days following the execution of this Release, the Releasor may revoke this
Release, and this Release shall not become effective or enforceable until the
revocation period has expired. This Release shall become effective eight (8)
days after it is signed by the Parties, and in the event the Parties do not sign
on the same date, then this Release shall become effective eight (8) days after
the date it is signed by the Releasor.
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3. Full and Complete Defense. This Release may be pleaded as a full and
complete defense and may be used as the basis for an injunction against any
action, suit or proceeding that may be prosecuted, instituted or attempted by
the Releasor against the Company.
4. Tax Indemnification. As part of this Release, the Releasor agrees to
indemnify, hold harmless, and, at the Company's request, defend the Company and
its affiliates, directors, officers, employees, agents, attorneys,
representatives, stockholders, insurers, divisions, successors and/or assigns
and any related holding, parent or subsidiary corporations, from and against any
and all loss, liability, claims, costs (including, without limitation,
attorneys' fees), demands, causes of action, or suits of any type, whether in
law and/or in equity, related directly or indirectly or in any way connected
with any federal or state income or other taxes payable or claimed to be payable
as a result of any consideration that the Company pays to the Releasor pursuant
to this Release or the Employment Agreement.
5. Amendments, etc. This Release may not be amended or waived except by a
writing signed by the Releasor and by a duly authorized officer of the Company.
Failure to exercise any right under this Release shall not constitute a waiver
of such right. Any waiver of any breach of this Release shall not operate as a
waiver of any subsequent breaches. All rights or remedies specified for a Party
herein shall be cumulative and in addition to all other rights and remedies of
the Party hereunder or under applicable law.
(a) Assignment; Binding Effect. The Releasor agrees that he shall have no
right to assign and shall not assign or purport to assign any rights or
obligations under this Release. This Release may be assigned or transferred by
the Company; and nothing in this Release shall prevent the consolidation, merger
or sale of the Company or a sale of any or all or substantially all of its
assets. Subject to the foregoing restriction on assignment by Employee, this
Release shall inure to the benefit of and be binding upon each of the parties;
the affiliates, officers, directors, agents, successors and assigns of the
Company; and the heirs, devisees, spouses, legal representatives and successors
of Employee.
7. Severability. If any provision of this Release shall be held by a court
or arbitrator to be invalid, unenforceable or void, such provision shall be
enforced to the fullest extent permitted by law, and the remainder of this
Release shall remain in full force and effect. In the event that the time period
or scope of any provision is declared by a court or arbitrator of competent
jurisdiction to exceed the maximum time period or scope that such court or
arbitrator deems enforceable, then such court or arbitrator shall reduce the
time period or scope to the maximum time period or scope permitted by law.
8. Governing Law. This Release shall be governed by and construed in
accordance with the internal laws of the State of California, without regard to
conflicts of law principles.
9. Interpretation. This Release shall be construed as a whole, according
to its fair meaning, and not in favor of or against any Party. Sections and
section headings contained in this Release are for reference purposes only, and
shall not affect in any manner the meaning or interpretation of this Release.
Whenever the context requires, references to the singular shall include the
plural and the plural the singular.
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10. Counterparts. This Release may be executed in any number of
counterparts, each of which shall be deemed an original of this Release, but all
of which together shall constitute one and the same instrument.
11. Authority. Each Party represents and warrants that such Party has the
right, power and authority to enter into and execute this Release and to perform
and discharge all of the obligations hereunder; and that this Release
constitutes the valid and legally binding agreement and obligation of such Party
and is enforceable in accordance with its terms.
12. Entire Agreement. This Release is intended to be the final, complete
and exclusive statement of the terms set forth herein and may not be
contradicted by evidence of any prior or contemporaneous statements or
agreements.
13. Opportunity to Consult Legal Counsel. The Releasor acknowledges that
he has had the opportunity to consult legal counsel concerning this Release,
that he has read and understands this Release, that he is fully aware of its
legal effect and that he has entered into this Release freely based on his own
judgment and not on any representations or promises other than those contained
in this Release.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Parties hereby execute this Release as of the date
first above written.
ENDOCARE, INC. RELEASOR:
By:
------------------------------ -------------------------
Name: Signature
Title:
-------------------------
Print Name
[SIGNATURE PAGE TO GENERAL RELEASE OF CLAIMS]
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