Exhibit 10.15
CONFIDENTIAL SEPARATION AGREEMENT
AND RELEASE OF ALL CLAIMS
This Confidential Separation Agreement and Release of Claims
("Agreement") is made between Xx. Xxxx X. Xxxx ("Xx. Xxxx") and Xxxxxxx
Laboratories, Inc. and its divisions and subsidiaries (collectively, "Xxxxxxx"
or "the Company") and shall become effective upon the "Effective Date" as set
forth in paragraph 15d.
RECITALS
WHEREAS, Xx. Xxxx as a founder of Xxxxxxx has worked with the Company
for 26 years and is an employee of Xxxxxxx and a member of Xxxxxxx'x Board of
Directors;
WHEREAS, it is the desire of the parties that Xx. Xxxx continue to
actively assist the President/CEO and his management team through the
development of additional business for Xxxxxxx through his contacts and in-depth
knowledge of the technology and its potential applications; and
WHEREAS, Xx. Xxxx and Xxxxxxx intend to enter into a consulting
relationship for Xx. Xxxx to continue to work with Xxxxxxx;
NOW, THEREFORE, in order to provide benefits to Xx. Xxxx flowing from
his employment relationship with Xxxxxxx, and in consideration of the mutual
promises, covenants and representations set forth below and other good and
valuable consideration, the parties agrees as follows:
1. RELINQUISHMENT OF EXECUTIVE POSITIONS/EMPLOYMENT.
Pursuant to this Agreement, Xx. Xxxx resigns his positions as Chairman
and CEO of Pure Pulse Technologies on the Effective Date of this Agreement.
Additionally, Xx. Xxxx will provide a letter, dated April 26, 1996, resigning
his positions of President and CEO of Xxxxxxx. Xxxxxxx'x Board of Directors
appointed a new President and CEO on April 26, 1996.
2. PAYMENT OF GOOD AND VALUABLE CONSIDERATION.
Upon the expiration of his employment agreement on July 31, 1996, Xx.
Xxxx shall be paid his final paycheck and all accrued but unused vacation and
any other accrued but unpaid benefits.
a. On August 1, 1996, Xx. Xxxx shall thereafter be retained as
a consultant pursuant to the terms of the
Consulting Agreement, a copy of which is attached hereto as Exhibit A (the
"Consulting Agreement").
b. Beginning on August 1, 1996, Xxxxxxx will provide to Xx.
Xxxx life insurance and disability, dental, and medical insurance or coverage
comparable to that provided from time to time to executive officers of Xxxxxxx.
These benefits may be provided to Xx. Xxxx either by allowing Xx. Xxxx to
participate in Xxxxxxx'x plans or by separate coverage or reimbursement and will
continue for 24 months or until July 31, 1998.
c. As of the expiration of Xx. Xxxx'x current employment
contract (31 July 1996), Xx. Xxxx shall no longer be entitled to any
contributions by the Company to his 401(K) account, SERP or Company retirement
programs. The balances then in such account or programs shall become the
property of Xx. Xxxx.
x. Xxxxxxx shall pay to Xx. Xxxx on the last day of his current
employment contract (31 July 1996) the sum of $400,000 as additional
compensation.
e. Xx. Xxxx currently has stock options both in Xxxxxxx
Laboratories, Inc. pursuant to the 1985 plan and in Pure Pulse pursuant to the
1994 plan as set forth in Exhibit B attached hereto. These stock options shall
be converted to non-qualified stock options at the latest possible date
allowable under the plan documents and applicable law, and shall remain in
effect until their respective scheduled expiration dates as set forth in Exhibit
B. Xx. Xxxx and the Company shall sign any agreements or papers necessary to
effectuate the conversion of such options.
f. Except as expressly provided for in the foregoing
subparagraphs and in the Consulting Agreement, Xx. Xxxx shall not be entitled to
any other payments, benefits or perquisites after the expiration date (31 July
1996) of Xx. Xxxx'x employment and any such payments, benefits and perquisites
then in effect shall cease. Any cash payment that may be made to other
Directors of the Company, in their capacity as Directors, during Xx. Xxxx'x
tenure as a Director, shall also be paid to him.
3. INDEMNIFICATION AGAINST CLAIMS.
Xxxxxxx agrees to indemnify and hold Xx. Xxxx harmless from any
liability, claims, demands, costs, expenses and attorneys' fees incurred by him
as a result of any actions by him in the course of his employment, or as a
Director of the Company to the extent Directors and officers of Xxxxxxx would be
so indemnified.
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4. NON-DISCLOSURE OF TRADE SECRETS AND CONFIDENTIAL INFORMATION.
Xx. Xxxx understands and agrees that in the course of employment with
Xxxxxxx he has acquired confidential information and trade secrets concerning
the operations of Xxxxxxx and its future plans and methods of doing business,
which information Xx. Xxxx understands and agrees would be damaging to Xxxxxxx
if disclosed to a competitor or made available to any other person or
corporation. Xx. Xxxx understands and agrees that such information either has
been developed by him or divulged to him in confidence, and he understands and
agrees that he will keep all such information secret and confidential.
5. GENERAL RELEASE.
a. Xx. Xxxx, on behalf of himself and his heirs, executors,
administrators, successors and assigns, does hereby irrevocably and
unconditionally release, acquit and forever discharge Xxxxxxx, and its
divisions, subsidiaries, affiliates and all owners, stockholders, predecessors,
successors, assigns, agents, directors, officers, employees, representatives,
and attorneys, acting by, through, under or in concert with Xxxxxxx or any
parent, subsidiary or related entity, from any and all charges, complaints,
grievances, claims, liabilities, obligations, promises, agreements,
controversies, damages, actions, causes of action, suits, rights, demands,
costs, losses, debts and expenses (including attorneys' fees and costs actually
incurred), of any nature whatsoever, known or unknown, suspected or unsuspected,
joint or several, which Xx. Xxxx has had or may hereafter claim to have had,
against Xxxxxxx by reason of any matter, act, omission, cause or event whatever
from the beginning of time to the Effective Date ("Xxxx Claims"); other than
those obligations set forth in this Agreement and the Consulting Agreement.
x. Xxxxxxx, and all predecessors, successors, assigns, agents,
representatives, and attorneys, acting by, through, under or in concert with
Xxxxxxx does hereby irrevocably and unconditionally release, acquit and forever
discharge Xx. Xxxx, on behalf of himself and his heirs, executors,
administrators, successors and assigns, from any and all charges, complaints,
grievances, claims, liabilities, obligations, promises, agreements,
controversies, damages, actions, causes of action, suits, rights, demands,
costs, losses, debts and expenses (including attorneys' fees and costs actually
incurred), of any nature whatsoever, known or unknown, suspected or unsuspected,
joint or several, which Xxxxxxx has had or may hereafter claim to have had,
against Xx. Xxxx by reason of any matter, act, omission, cause or event whatever
from the beginning of time to the Effective Date ("Xxxxxxx Claims"); other than
those obligations set forth in this Agreement and the Consulting Agreement.
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The Xxxx Claims and the Xxxxxxx Claims are collectively referred to
herein as the "Claims."
c. This release and waiver of Claims specifically includes, but
without limiting the foregoing general terms, the following: (1) all Claims
arising from or relating in any way to any act or failure to act by any employee
of Xxxxxxx, (2) all Claims arising from or relating in any way to the employment
relationship of Xx. Xxxx with Xxxxxxx and/or the termination thereof, including
any claims which have been asserted or could have been asserted against Xxxxxxx
or Xx. Xxxx, together with (3) any and all Claims which might have been asserted
by Xx. Xxxx or Xxxxxxx in any suit, claim, or charge, for or on account of any
matter or things whatsoever that has occurred up to and including the effective
date of this Agreement, under any and all laws, statutes, orders, regulations,
or any other claim or right(s); including without limitation, any claim under
Age Discrimination in Employment Act of 1967, as amended, Title VII of the Civil
Rights Act of 1964, as amended, and the California Fair Employment and Housing
Act or any Claim in contract or tort.
Xx. Xxxx and Xxxxxxx each waive their rights under section 1542 of the
Civil Code of California which states:
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 the release,
which if known to him must have materially affected his settlement with the
debtor.
6. CONFIDENTIALITY OF TERMS OF AGREEMENT.
The parties to this Agreement agree that as of the Effective Date of
this Agreement, each of them, and their counsel, will keep the terms, amount and
fact that this Agreement exists completely confidential and will not disclose
any information about this Agreement to anyone, except those provided herein,
with the exception for legal, financial, or tax advisors for Xx. Xxxx and
Xxxxxxx and the officers and directors of Xxxxxxx.
7. BINDING AGREEMENT.
This Agreement will be binding upon Xx. Xxxx and Xxxxxxx and their
respective heirs, administrators, representatives, executors, successors and
assigns and shall inure to the benefit of the parties hereto and their
representatives, and each of them, and to their heirs, administrators,
representatives, executors, successors and assigns.
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8. DISPUTES.
Any dispute or difference arising out of this Agreement, or involving
a question of fact which is not settled by mutual agreement and settlement of
which is not otherwise provided for herein, shall be decided by Xxxxxxx. Such
decision shall be reduced to writing and furnished to Consultant within thirty
(30) days after receipt of such decision. Consultant may notify Xxxxxxx, within
thirty (30) days, in writing of his disagreement with such decision, and in the
absence of such notice, Xxxxxxx'x decision shall be final. In the event
Consultant gives such notice of disagreement the dispute shall be settled and
finally determined by arbitration in the City of San Diego, in the following
manner:
a. Both parties to this Agreement shall appoint an arbitrator.
The two arbitrators so appointed shall thereupon select a third arbitrator. The
arbitrators shall meet and give opportunity to each party to this Agreement to
present its case and witnesses (if any) in the presence of the other, and shall
then make their award. Decision in writing of the three arbitrators, or any two
of them, shall be final and binding upon the parties thereto, and judgment may
be entered therein in any court having jurisdiction. Such decision shall
include the fixing of the expenses of the arbitration and the assessment of the
same against either or both parties. If either party shall fail to appoint its
arbitrator within thirty days after receipt of notice in writing requiring it to
do so, the arbitrator appointed by the other party shall act for both, and his
decision in writing shall be final and binding on both parties, as if he had
been appointed by consent. Pending final decision of a dispute hereunder and,
if performance has not been completed, Consultant shall proceed diligently in
accordance with Xxxxxxx'x instructions from the President/CEO.
b. If, in an appropriate case, the arbitrators appointed by the
parties shall fail to select a third arbitrator within two weeks of their
appointment, a third arbitrator shall be selected in accordance with the then
current rules and regulations of the American Arbitration Association.
9. ATTORNEYS' FEES.
Each Party will pay their own respective attorney's fees, both as they
occur for this agreement and for any litigation that may occur concerning this
Agreement.
10. NON-RELIANCE.
Other than as expressly set forth in this Agreement, Xx. Xxxx and
Xxxxxxx represent and acknowledge that in executing this Agreement they did not
rely upon and they have not relied upon any representation nor statement made by
any of the parties hereto or by any of their agents, representatives or
attorneys
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with regard to the subject matter, basis or effect of this Agreement or
otherwise.
11. AGREEMENT OBLIGATES, EXTENDS AND INURES.
The provisions of this Agreement shall be deemed to obligate, extend
and inure to the benefit of the legal successors, assigns, transferees,
grantees, heirs, shareholders, officers and directors of each signatory party
hereto, and to those who may assume any or all of the above-described capacities
subsequent to the execution and Effective Date of this Agreement.
12. METHOD OF EXECUTION.
This Agreement may be executed in counterparts and each counterpart
shall be deemed a duplicate original.
13. APPLICABLE LAW.
This Agreement is deemed to have been made and entered into in the
State of California and shall in all respects be interpreted, enforced and
governed under the laws of said State.
14. SEVERABILITY.
The provisions of this Agreement are severable, and should any
provision of this Agreement be declared or be determined by any arbitrator or
court to be illegal or invalid, any such provision shall be stricken, and the
validity of the remaining parts, terms or provisions shall not be affected.
15. OLDER WORKERS BENEFIT PROTECTION ACT.
The Release contained in paragraph 5 is intended to release and
discharge any and all claims of Xx. Xxxx against Xxxxxxx as set forth above,
including but not limited to, any claims arising under the Age Discrimination in
Employment Act, 29 U.S.C. Section 621 ET. SEQ. It is the intent of Xx. Xxxx and
Xxxxxxx that such Release satisfy the requirements of the Older Workers Benefit
Protection Act, Public Law 101-433, codified at 29 U.S.C. Section 626(f). The
following general provisions, along with the other provisions of such Release,
are agreed to for this purpose:
a. Xx. Xxxx acknowledges and agrees that he has read and he
understands the terms of this Agreement;
b. Xx. Xxxx acknowledges that he has been given a full
opportunity to consult with a lawyer with respect to the matters referenced in
such Release, and that Xx. Xxxx has obtained and considered such legal counsel
as he deems necessary, such that Xx. Xxxx is entering into such Release freely,
knowingly and willingly;
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c. Xx. Xxxx acknowledges that he has been given at least
twenty-one days in which to consider whether or not to enter into this
Agreement;
d. This Agreement shall not become effective or enforceable
until the eighth day after Xx. Xxxx signs this Agreement (the eighth day after
Xx. Xxxx signs this Agreement being the "Effective Date") unless Xx. Xxxx has
revoked this Agreement in writing during the seven days after signing this
Agreement.
16. ENTIRE AGREEMENT.
This Agreement, together with the Consulting Agreement, sets forth the
entire agreement between the parties and fully supersedes any and all prior
agreements or understandings between the parties pertaining to the relationship
between them and the other matters covered hereby, except that Employment
Agreement between Xxxxxxx and Xx. Xxxx dated June 20, 1989 shall remain in
effect until July 31, 1996 at which time it shall be terminated and superseded.
Further, this Agreement may not be changed except by explicit written agreement
by the parties hereto.
Xx. Xxxx states that he has carefully read the foregoing Agreement,
has had the opportunity to consult with an attorney, knows and understands its
contents, and voluntarily executes this Agreement.
Dated: June 21, 1996 /s/ Xxxx X. Xxxx
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Xx. Xxxx X. Xxxx
Dated: June 25, 1996 /s/ Xxxx X. Starry
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Xxxx Xxxxxx on behalf of
Xxxxxxx Laboratories, Inc.
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