Re: Resignation Agreement
Exhibit 10.24
June 25, 0000
Xxxxxxx X. Xxxxxxxx, M.D., Ph.D.
000 Xxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
| Re: | Resignation Agreement |
Dear Ray:
This letter sets forth the substance of the Resignation Agreement (the “Agreement”) that Metabolex, Inc. (the “Company”) is offering you as an alternative to the proposed Termination Agreement of today’s date.
1. Resignation Date. As part of this Agreement you hereby offer your resignation of employment and as an officer of the Company, pursuant to the letter of resignation (a form of which is set forth in Exhibit A) that you agree to execute and return to the Company concurrently with this Agreement. The Company hereby accepts your resignation, effective as of June 11, 2012 (the “Resignation Date”), which became your last day of work with the Company and your employment termination date.
2. Accrued Salary and Vacation. On the Resignation Date, the Company will pay you all accrued salary, and all accrued and unused vacation earned through the Resignation Date, subject to standard payroll deductions and withholdings.
3. Severance. You acknowledge that under the circumstances of your employment termination, you are not eligible for the severance benefits described in the offer letter agreement between you and the Company dated October 3, 2011 (the “Offer Letter Agreement”). As part of this Agreement, the Company agrees to pay you, as severance, $ 184,850 subject to standard payroll deductions and withholdings (“Severance”). Severance will be paid in a lump sum on the first regular payday no earlier than one week after the Effective Date, as defined in paragraph 18 below, provided that you sign this Agreement and do not revoke the ADEA Waiver as defined in paragraph 18.
4. Hiring Bonus. You acknowledge that you were paid the first $20,000 installment of the Hiring Bonus, pursuant to and as defined in the Offer Letter Agreement. As part of this Agreement, you agree and acknowledge that you will not be eligible to receive, and will not earn, the second $20,000 installment of the Hiring Bonus. As part of this Agreement, the Company agrees to waive its right under the Offer Letter Agreement, to repayment by you of any portion of the first installment of the Hiring Bonus.
5. Housing Assistance. You acknowledge that, in accordance with your letter agreement with the Company dated November 18, 2011, the Company has fully performed its obligations under the Offer Letter Agreement to provide you with relocation assistance.
Metabolex, Inc. 0000 Xxx Xxxxxx Xxxxx, Xxxxxxx, XX 00000 Phone: (000) 000-0000 xxx.xxxxxxxxx.xxx
Xxxxxxx X. Xxxxxxxx, M.D., Ph.D.
June 26, 2012
Page 2
6. Discretionary Bonus. You will not be eligible to earn, and will not receive, any bonus award for your service in 2012, under the Company’s annual discretionary bonus program.
7. Unemployment Benefits. As part of this Agreement, the Company agrees not to oppose your claim for unemployment compensation benefits, which will be determined by the State of California. If you wish, you may characterize the separation as a “mutual resignation”.
8. Health Care Continuation Coverage (COBRA). To the extent provided by the federal COBRA law or, if applicable, state insurance laws, and by the Company’s current group health insurance policies, you will be eligible to continue your group health insurance benefits at your own expense. Later, you may be able to convert to an individual policy through the provider of the Company’s health insurance, if you wish.
9. Stock Options. You were granted an option to purchase 650,000 shares of the Company’s common stock, pursuant to the Company’s equity incentive plan (the “Plan”). Under the terms of the Plan and your stock option grant, vesting will cease as of the Resignation Date, as of which date none of your shares will have
10. Other Compensation or Benefits. You acknowledge that, except as expressly provided in this Agreement, you will not receive any additional compensation, bonus, stock option vesting, severance or benefits after the Resignation Date.
11. Expense Reimbursements. You agree that, within five (5) business days of the Resignation Date, you will submit your final documented expense reimbursement statement reflecting all business expenses you incurred through the Resignation Date, if any, for which you seek reimbursement. The Company will reimburse you for these expenses pursuant to its regular business practice.
12. Return of Company Property. By the Resignation Date, you agree to return to the Company all Company documents (and all copies thereof) and other Company property that you have had in your possession at any time, including, but not limited to, Company files, notes, drawings, records, business plans and forecasts, financial information, specifications, computer-recorded information, tangible property (including, but not limited to, computers, telephone), credit cards, entry cards, identification badges and keys; and, any materials of any kind that contain or embody any proprietary or confidential information of the Company (and all reproductions thereof).
13. Proprietary Information Obligations. You hereby acknowledge your continuing obligations, both during and after your employment, under your Employee Agreement on Confidential Information and Inventions, including your obligations not to use or disclose any confidential or proprietary information of the Company. A copy of your Employee Agreement on Confidential Information and Inventions is attached hereto as Exhibit B.
xxx.xxxxxxxxx.xxx
Xxxxxxx X. Xxxxxxxx, M.D., Ph.D.
June 26, 2012
Page 3
14. Confidentiality. The provisions of this Agreement will be held in strictest confidence by you and the Company and will not be publicized or disclosed in any manner whatsoever; provided, however, that: (a) you may disclose this Agreement to your immediate family; (b) the parties may disclose this Agreement in confidence to their respective attorneys, accountants, auditors, tax preparers, and financial advisors; (c) the Company may disclose this Agreement as necessary to fulfill standard or legally required corporate reporting or disclosure requirements; and (d) the parties may disclose this Agreement insofar as such disclosure may be necessary to enforce its terms or as otherwise required by law. In particular, and without limitation, you agree not to disclose the terms of this Agreement to any current or former Company employee.
15. Nondisparagement. You agree not to disparage the Company or the Company’s officers, directors, employees, shareholders, parents, subsidiaries, affiliates, and agents, in any manner likely to be harmful to them or their business, business reputation or personal reputation; provided that you may respond accurately and fully to any question, inquiry or request for information when required by legal process.
16. Release of Claims. In exchange for Severance, the Company’s waiver of repayment of the Hiring Bonus, and other consideration provided to you by this Agreement that you are not otherwise entitled to receive, you hereby generally and completely release Metabolex, Inc. and its current and former directors, officers, employees, shareholders, partners, agents, attorneys, predecessors, successors, parent and subsidiary entities, insurers, affiliates, and assigns from any and all claims, liabilities and obligations, both known and unknown, that arise out of or are in any way related to events, acts, conduct, or omissions occurring prior to your signing this Agreement. This general release includes, but is not limited to: (1) all claims arising out of or in any way related to your employment with the Company, or the termination of that employment; (2) all claims related to your compensation or benefits from the Company, including salary, bonuses, the Hiring Bonus, commissions, vacation pay, expense reimbursements, relocation assistance, severance pay, severance benefits, fringe benefits, stock, stock options, accelerated vesting of stock options (including without limitation the Acceleration as defined in the Offer Letter Agreement), or any other ownership interests in the Company; (3) all claims for breach of contract, wrongful termination, and breach of the implied covenant of good faith and fair dealing; claims under the Offer Letter Agreement; (4) all tort claims, including claims for fraud, defamation, emotional distress, and discharge in violation of public policy; and (5) all federal, state, and local statutory claims, including claims for discrimination, harassment, retaliation, attorneys’ fees, or other claims arising under the federal Civil Rights Act of 1964 (as amended), the federal Americans with Disabilities Act of 1990, the federal Age Discrimination in Employment Act of 1967 (as amended) (“ADEA”), and the California Fair Employment and Housing Act (as amended).
17. Exceptions. You are not releasing any claim that cannot be waived under applicable state or federal law. You are not releasing any rights that you have to be indemnified (including any right to reimbursement of expenses) arising under applicable law, the certificate of incorporation or by-laws (or similar constituent documents of the Company), any indemnification agreement between you and the Company, or any directors’ and officers’ liability insurance policy of the Company. Nothing in this Agreement shall prevent you from filing, cooperating with, or participating in any proceeding before the Equal Employment
xxx.xxxxxxxxx.xxx
Xxxxxxx X. Xxxxxxxx, M.D., Ph.D.
June 26, 2012
Page 4
Opportunity Commission, the Department of Labor, or the California Department of Fair Employment and Housing, except that you acknowledge and agree that you shall not recover any monetary benefits in connection with any such claim, charge or proceeding with regard to any claim released herein. Nothing in this Agreement shall prevent you from challenging the validity of the release in a legal or administrative proceeding.
18. ADEA Waiver. You acknowledge that you are knowingly and voluntarily waiving and releasing any rights you may have under the ADEA (“ADEA Waiver”). You also acknowledge that the consideration given for the ADEA Waiver is in addition to anything of value to which you were already entitled. You further acknowledge that you have been advised by this writing, as required by the ADEA, that: (a) your ADEA Waiver does not apply to any rights or claims that arise after the date you sign this Agreement; (b) you should consult with an attorney prior to signing this Agreement; (c) you have twenty-one (21) days to consider this Agreement (although you may choose to voluntarily sign it sooner); (d) you have seven (7) days following the date you sign this Agreement to revoke the ADEA Waiver, with such revocation to be effective only if you deliver written notice of revocation to the Company within the seven (7)-day period; and (e) the ADEA Waiver will not be effective until the date upon which the revocation period has expired unexercised, which will be the eighth day after you sign this Agreement (“Effective Date”).
19. Section 1542 Waiver. YOU UNDERSTAND THAT THIS AGREEMENT INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS. In giving the release herein, which includes claims which may be unknown to you at present, you acknowledge that you have read and understand Section 1542 of the California Civil Code, which reads as follows:
“A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”
You hereby expressly waive and relinquish all rights and benefits under that section and any law of any other jurisdiction of similar effect with respect to your release of any unknown or unsuspected claims herein.
20. Representations. You hereby represent that you have been paid all compensation owed and for all hours worked, have received all the leave and leave benefits and protections for which you are eligible, pursuant to the Family and Medical Leave Act or otherwise, and have not suffered any on-the-job injury for which you have not already filed a claim.
21. General. This Agreement including Exhibits A and B, constitutes the complete, final and exclusive embodiment of the entire agreement between you and the Company with regard to this subject matter. It is entered into without reliance on any promise or representation, written or oral, other than those expressly contained herein, and it supersedes any other such promises, warranties or representations. This Agreement may not be modified or amended
xxx.xxxxxxxxx.xxx
Xxxxxxx X. Xxxxxxxx, M.D., Ph.D.
June 26, 2012
Page 5
except in a writing signed by both you and a duly authorized officer of the Company. This Agreement will bind the heirs, personal representatives, successors and assigns of both you and the Company, and inure to the benefit of both you and the Company, and each party’s heirs, successors and assigns. If any provision of this Agreement is determined to be invalid or unenforceable, in whole or in part, this determination will not affect any other provision of this Agreement and the provision in question will be modified by the court so as to be rendered enforceable to the fullest extent permitted by law, consistent with the intent of the parties. This Agreement will be deemed to have been entered into and will be construed and enforced in accordance with the laws of the State of California as applied to contracts made and to be performed entirely within California.
If you choose to accept this Agreement instead of the Termination Agreement, please sign below and on Exhibit A, and return the originals to me.
I wish you good luck in your future endeavors.
Sincerely,
| METABOLEX, INC. | ||
| By: |
| |
| Xxxxxx Van Wart | ||
| Chief Executive Officer | ||
Exhibit A – Resignation Letter
Exhibit B – Employee Agreement on Confidential Information and Inventions
| AGREED: | ||
| ||
| Xxxxxxx X. Xxxxxxxx, M.D., Ph.D. | ||
| June 25, 2012 | ||
| Date | ||
xxx.xxxxxxxxx.xxx
EXHIBIT A
Xxxxx X. Xxxxx, M.D., Ph.D.
Chairman, Board of Directors
Metabolex, Inc.
Dear Chairman Xxxxx:
I hereby tender my resignation as an employee, and as Chief Medical Officer of Metabolex, Inc., effective as of June 11, 2012.
Dated: June 26, 0000
|
| ||
| Xxxxxxx X. Xxxxxxxx, M.D., Ph.D. | ||
xxx.xxxxxxxxx.xxx
EXHIBIT B
[Employee Agreement on Confidential Information and Inventions]
xxx.xxxxxxxxx.xxx
