SEVERANCE AND CONSULTING AGREEMENT AND GENERAL RELEASE
Exhibit
10.1
SEVERANCE
AND CONSULTING AGREEMENT AND GENERAL RELEASE
This Severance and Consulting Agreement
and General Release is made and entered into by and between Xxxx X. Xxxxx,
acting on his own behalf (“Price”) and RBC Life Sciences USA, Inc., and all
parent, subsidiary, and affiliated companies and divisions, including all
officers, directors, agents, and employees (collectively “RBC Life Sciences”)
(collectively the “Agreement”).
WHEREAS,
Price was employed by RBC Life Sciences and served as an officer and director of
RBC Life Sciences; and
WHEREAS,
Price and RBC Life Sciences no longer desire the continuation of the employment,
officer and director relationships;
WHEREAS, Price agrees to resign his
employment with RBC Life Sciences effective June 11, 2010 (“Termination Date”);
and
WHEREAS,
Price and RBC Life Sciences mutually wish to fully and finally resolve any
existing or potential disputes arising out of the employment relationship
between Price and RBC Life Sciences;
WHEREAS,
RBC Life Sciences desires to retain Price as a Consultant for the period running
from June 14, 2010 until December 31, 2010;
WHEREAS,
Price is willing to provide the consulting services described in this Agreement
in consideration of affirmative covenants made by RBC Life Sciences including,
without limitation, certain payments to be made to Price;
WHEREAS, under the terms set forth in
this Agreement, the Effective Date of this Agreement shall be eight days after
the date on which Price executes the Agreement (the “Effective
Date”);
NOW THEREFORE, in consideration of the
mutual promises herein contained it is agreed as followed:
1. Resignation. Contemporaneously
with his execution of this Agreement, Price shall tender his resignation from
all positions and titles that he holds as an employee of RBC Life Sciences,
including without limitation his positions as President and CEO, which
resignation will be effective on June 11, 2010 (such date being referred to as
the “Employment Resignation Date”). Price also shall, contemporaneously with his
execution of this Agreement, tender his resignation as a member of the Board of
Directors of RBC Life Sciences, effective as of June 17, 2010 (hereafter the
“Director Resignation Date”). Price agrees to tender such
resignations in the form and substance set forth in the attached Exhibit “A” to
this Agreement. RBC Life Sciences shall accept Price’s
resignations. Price agrees that he shall not issue any press release
or initiate any communication to the press or media relating to his resignation
or consulting status unless he first obtains RBC Life Sciences’ written
consent. As consideration for his agreement to this provision, RBC
Life Sciences agrees that it will not contest Price’s right to seek unemployment
compensation.
2. Payment of Salary and Earned
Benefits. Within five business days of the Employment
Resignation Date, RBC Life Sciences shall pay to Price all accrued salary and
accrued, but unused, vacation leave to which Price is entitled as of the
Employment Resignation Date. Any outstanding reimbursable expenses as
of the Resignation Date will be paid to Price upon submission and approval of
those expenses in accordance with RBC Life Sciences’ customary
practices.
3. Severance Payments and Other
Actions. In consideration of this Agreement (including,
without limitation, the Services provided pursuant to Section 4, the
continuation of the covenants and agreements previously made by Price and listed
in Section 3(d) below, the Releases contained in Section 5 and 6, and the
covenants listed in Sections 7 and 8), and as a material inducement for Price to
execute this Agreement, and in full and complete settlement of any and all
claims (including any Price may have for attorneys’ fees and costs), RBC Life
Sciences and Price agree to do the following.
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(a)
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Severance Payments. Unless
Price exercises his right under Section 5(e) below, RBC Life Sciences will
pay Price the total amount of One Hundred Seventy Eight Thousand Seven
Hundred Fifty and No/100 ($178,750.00) (the “Severance Amount”) in
installments, as follows:
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1.
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The
first installment, in the amount of Sixteen Thousand Two Hundred Fifty
Dollars ($16,250.00), shall be paid not earlier than the eighth day nor
later than the thirteenth day following Price’s execution of this
Agreement; and
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2.
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The
balance shall be paid in equal monthly installments of Twenty-Seven
Thousand Eighty-Three and 33/100 Dollars ($27,083.33), to be paid on the
first business day of each month, with the first payment due and payable
on July 1, 2010, and the last payment due and payable on December 1,
2010.
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3.
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RBC
Life Sciences shall also pay directly to Xxxxxxx Xxxx on behalf of Price
the sum of $1000 for legal services in connection with the preparation of
this Agreement.
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(b)
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Income
Tax. Price agrees to pay all income taxes due for
payments made to Price or on Price’s behalf pursuant to this
Agreement. Price further agrees to indemnify and hold RBC Life
Sciences harmless for any claim by any taxing authority for any taxes,
penalties, interest or attorneys’ fees
due.
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(c)
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To
the extent permitted by applicable law, Price shall be eligible for
COBRA health and dental insurance continuation benefits at his
expense.
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(d)
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Price
agrees that RBC Life Sciences had no prior obligation to make the payments
described herein, that these are payments to which he would not otherwise
be entitled, and that the payments being made are made as a material
inducement to Price to sign this Agreement and accept the terms contained
herein.
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(e)
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Price
agrees to continue to be bound by and does hereby reaffirm and incorporate
by reference the terms, conditions and restrictions set forth in Sections
7 and 13(c) of that certain Amended and Restated Employment Agreement by
and between the Company and Price (“Employment Agreement”) executed by
Price during his employment with RBC Life Sciences. Price and
Employer agree that all other rights and obligations of either party under
the Employment Agreement are terminated and of no further force or
effect.
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(f)
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As
a condition to receiving the amounts described in this Section 3, Price
agrees and understands that he must return any and all property belonging
to RBC Life Sciences, including, but not limited to, computers, copiers,
fax machines, telephones, credit cards, files, and other equipment, as well as documents
and electronic data and information, that he obtained during his
employment at RBC Life Sciences. The failure to return said
equipment shall be considered a breach of a condition precedent to this
Agreement triggering RBC Life Sciences’
obligations.
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4.
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Consulting
Agreement.
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(a) General Consulting
Services. Notwithstanding the foregoing, during the period
running from June 14, 2010 through December 31, 2010 (the “Consulting Period”),
Price shall serve as a consultant to RBC Life Sciences. Provided, however, Price
shall in no case be deemed to be an employee of RBC Life Sciences but instead
shall serve as an independent contractor for all purposes. Price
agrees to hold himself available for consulting upon the reasonable request of
RBC Life Sciences by telephone and/or in person, during normal business hours
and, if by mutual agreement at times other than during normal business
hours. In connection with the services to be rendered by Price to RBC
Life Sciences under this Section 4 (the “Services”), Price will not, without the
consent or direction of RBC Life Sciences, act or attempt to act or represent
himself, directly or by implication, as an officer, director, agent or employee
of RBC Life Sciences or in any manner assume or create, or attempt to create,
any obligation on behalf of, or in the name of RBC Life
Sciences. Other than as set forth in subsections (b) and (c) to this
Section, Price shall not undertake to perform any Services unless and until he
is requested or directed to do so by RBC Life Sciences. In the event
RBC Life Sciences requests Price to incur any expenses in connection with the
Services, RBC Life Sciences agrees to pay, in accordance with RBC Life Sciences’
normal reimbursement policies, all reasonable expenses actually incurred by
Price in connection with providing the Services, including without limitation,
travel, meals and lodging expenses. During the Consulting Period,
Price may engage in employment or other consulting activities for other
entities.
(b) Litigation
Assistance. Price further agrees that following the Employment
Resignation Date, Price will reasonably provide historical and factual
information as reasonably necessary to assist RBC Life Sciences in the
prosecution or defense of any litigation save and except any litigation in which
RBC Life Sciences and Price are adversarial parties.
(c) Consideration. The
cash and other consideration paid to Price under Section 3 shall constitute
sufficient consideration for the Services pursuant to this Section 4, for the
Releases in Section 5 and 6, for the covenants and agreements in Sections 3(e),
7, and 8, and generally for all of Price’s promises and agreements
herein. RBC Life Sciences shall have no other compensation obligations to
Price with respect to the Services.
5. Age Discrimination in
Employment Act. Price irrevocably and unconditionally waives,
releases, and forever discharges RBC Life Sciences and its respective
subsidiaries, affiliates, officers, directors, shareholders, managers,
employees, representatives, successors, assigns, agents, and attorneys from any
and all claims, demands, suits, damages, liabilities, losses, controversies,
debts, benefits and rights, and causes of action, based on the Age
Discrimination in Employment Act, 29 U.S.C. §621, or the Older Workers Benefit
Protection Act. Price hereby acknowledges and agrees that this
Agreement and the termination of Price’s employment are in compliance with the
Age Discrimination in Employment Act and the Older Workers’ Benefits Protection
Act. Price further acknowledges and agrees that:
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(a)
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The
release given by Price in this Section 5 is given solely in exchange for
the consideration set forth in this Agreement, and such consideration from
RBC Life Sciences is in addition to anything of value that Price was
entitled to receive prior to entering into this
Agreement;
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(b)
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By
entering into this Agreement, Price does not waive rights or claims that
may arise after the Effective Date of this
Agreement;
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(c)
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Price
is advised to consult with an attorney prior to executing this Agreement,
and this provision of this Agreement satisfies the requirement of the
Older Workers’ Benefit Protection Act that Price be so advised to consult
an attorney in writing;
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(d)
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Price
has been offered twenty-one (21) days from receipt of this Agreement
within which to consider this Agreement;
and
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(e)
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For
a period of seven (7) days following execution of this Agreement, Price
may revoke this Agreement, and this Agreement shall not become effective
or enforceable until such seven-day period has expired. The
first installment set forth at Section 3(a) will be paid not earlier than
the eighth day nor later than the thirteenth day following Price’s
execution of this Agreement, if Price does not revoke this Agreement as
set forth herein. Revocation must be in writing and provided to
RBC Life Sciences within seven (7) days following Price’s execution of
this Agreement, as provided in Section 11
below.
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6. General Release of RBC Life
Sciences. In consideration for the special arrangements
provided by RBC Life Sciences, as described herein, and as a material inducement
for RBC Life Sciences to enter into this Agreement, and for other valuable
consideration which is hereby acknowledged, Price agrees as
follows:
Price
irrevocably and unconditionally waives, releases, and forever discharges RBC
Life Sciences and its respective subsidiaries, affiliates, officers, directors,
shareholders, managers, employees, representatives, successors, assigns, agents,
and attorneys (the “Released Parties”) from any and all claims, demands, suits,
damages, liabilities, losses, controversies, debts, benefits and rights, and
causes of action, in law or in equity, of any kind whatsoever, known or unknown,
which Price has or may have had against RBC Life Sciences including, but not
limited to, any claims, rights, or causes of action based on wrongful
termination, defamation, invasion of privacy, or other tort, breach of contract,
express or implied, or based on federal, state or local laws, statutes,
ordinances, public policy or executive orders, such as Title VII of the Civil
Rights Act of 1964, as amended, the Equal Pay Act of 1963, as amended, the Civil
Rights Acts of 1966, 1971, and 1991 (race, color, creed, national origin, gender
sex discrimination), the Americans with Disabilities Act of 1990, as amended
(disabilities discrimination), the Fair Labor Standards Act of 1974, as amended
(wage and hour claims), the Price Retirement Income Security Act (ERISA); the
TEX. LAB. CODE XXX. §659.001 et seq. (Texas’s Equal Pay Act); TEX. LAB. CODE
XXX. §§821.1 et seq., 821.41 et seq., 821.21 et seq. (Texas’s Pay Day Rules);
TEX. LAB. CODE XXX. §21.001 et seq. (Texas’s general anti-discrimination
statutes); TEX. LAB. CODE XXX. §451.001 et seq. (Texas’s workers’ compensation
retaliation provision); and any other applicable state, city or local ordinance,
or any other state or federal constitutional claim, right, public policy, or
cause of action. This release and waiver does not apply to any rights
or claims that cannot be waivered under federal or state law.
7. Administrative
Claims. Price understands that he is releasing and does hereby release,
any claims for damages, by charge or otherwise, whether brought by Price or on
his behalf by any other party, governmental or otherwise; Price agrees not to
institute any claims for damages via administrative or legal proceedings against
any of the Released Parties. Although Price may under some
circumstances be entitled to file an administrative charge with a governmental
agency (which Price does not waive), Price acknowledges and agrees that by this
Agreement, Price waives and releases any and all rights to money damages or
other personal legal relief awarded by any governmental agency related to any
charge or other claim involving any of the Released Parties to the maximum
extent permitted by law. Price represents and warrants that Price has
not instituted any lawsuit, charge or demand against or has otherwise sued on
any claim released in this Agreement and Price agrees not to institute any such
lawsuits except as expressly permitted by this Agreement.
8. Confidentiality. Price
agrees to keep the terms and existence of this Agreement confidential and will
not disclose any of its terms to a third party, other than his immediate family,
counsel retained by Price to review and provide advice on this Agreement (who
shall, prior to review, affirmatively agree to be bound by this Section 8), or
as otherwise compelled or authorized by law.
9. Breach of
Confidentiality. Price agrees that a breach of Price of the
promises of confidentiality and nondisclosure set forth in this Agreement, for
which RBC Life Sciences will suffer damages and may seek legal damages
(including the return of any consideration provided to Price under this
Agreement), including attorney’s fees and costs, injunctive relief and other
appropriate relief against Price in a court of law.
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10. No Access to Computer or
Networks. Effective June 11, 2010, Price agrees not to access
any computer network or hard drive data or information without the express,
prior written approval of RBC Life Sciences, or as necessary to assist Price in
connection with Services to be provided under Section 4(a) of this
Agreement.
11. Notices. All
notices contemplated to be given by Price to RBC Life Sciences under this
Agreement shall be effective only if sent by certified mail, return receipt
requested, or by hand delivery, to the following address:
Attention: Chairman
of the Board
0000
Xxxxx Xx
Xxxxxx,
XX 00000.
12. Governing Law; No
Modifications; Venue. This Severance and Consulting Agreement
and General Release shall be governed by and construed in accordance with the
laws of the State of Texas, without regard to principles of conflicts of laws,
and cannot be amended, modified, or supplemented except by a written agreement
entered into by all parties hereto. Any action or suit to enforce or
interpret this Severance Agreement and General Release shall be filed in Dallas
County, Texas.
13. Severability; Survival of
Terms. In the event any provision of this Severance Agreement
and General Release is invalidated by a court of competent jurisdiction, then
all of the remaining provisions of this Severance Agreement and General Release
shall continue unabated and in full force and effect. All obligations
of a continuing nature created by this Severance Agreement and General Release
shall survive its expiration or termination.
14. Performance;
Breach. Price understands and agrees that the obligations of
RBC Life Sciences to perform under this Agreement are conditioned on the Price’s
performance of all agreements, releases, and covenants as set forth
herein. In the event a breach of this Agreement is proven (including
but not limited to breach of confidentiality which shall be considered a
material breach of this Agreement), the non-breaching party may recover, in
addition to damages, the reasonable costs and fees, including attorneys fees,
incurred in establishing the breach and securing judicial relief. In
the event that the provisions of this Agreement are breached, the non-breaching
party may recover damages for the breach without waiving the right to insist on
the breaching party’s continued fulfillment of all other obligations of this
Agreement.
15. No Assignment; Binding
Effect. Price warrants and represents that he has not assigned
or transferred any rights or claims against RBC Life Sciences. In
addition, this Agreement shall apply to Price and any of his assigns and
transferees. This Agreement shall inure to the benefit of and be
binding on the Parties hereto and their respective heirs, representatives,
successors, transferees, and assigns.
The
parties being in complete and full agreement of the aforesaid matters affix
their signatures below.
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RBC
Life Sciences
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Xxxx
X. Xxxxx
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By:
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/s/ Xxxxxx X.
Xxxxx
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By:
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/s/ Xxxx X.
Xxxxx
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Its:
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Chief Financial Officer
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Print:
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Xxxx X. Xxxxx
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Title
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Date:
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June
16, 2010
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Date:
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June 16,
2010
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