EXHIBIT 10.21
MUTUAL GENERAL RELEASE
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This Mutual General Release (this "Agreement") is made and entered into
as of January 27, 2005 by and between Xxxxx X. Xxxxxxxxxxx ("Xx. Xxxxxxxxxxx")
and The RiceX Company (the "Company"). Xx. Xxxxxxxxxxx and the Company are
sometimes referred to herein, individually, as a "Party" and, collectively, as
the "Parties."
RECITALS
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WHEREAS, Xx. Xxxxxxxxxxx is employed by the Company as Senior Vice
President of Global Strategic Operations; and
WHEREAS, Xx. Xxxxxxxxxxx has indicated her desire to resign her
employment by the Company as its Senior Vice President of Global Strategic
Operations concurrently with the execution of this Agreement; and
WHEREAS, Xx. Xxxxxxxxxxx and the Company desire to fully and finally
resolve all matters between them arising out of or related to Xx. Xxxxxxxxxxx'x
employment with, and resignation from, the Company on the terms and conditions
set forth herein.
AGREEMENT
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NOW, THEREFORE, in consideration of the foregoing recitals and the
representations contained herein, and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, Xx. Xxxxxxxxxxx and
the Company agree as follows:
1. RESIGNATION. Effective January 18, 2005 (the "Effective
Date"), Xx. Xxxxxxxxxxx will have resigned her employment with the Company as
Senior Vice President of Global Strategic Operations.
2. SEVERANCE. The Company shall pay Xx. Xxxxxxxxxxx One Hundred
Two Thousand Six Hundred Seventy Six Dollars and No Cents ($102,676.00) in
severance pay, inclusive of any vacation pay or other amounts which may be owed
by the Company to Xx. Xxxxxxxxxxx pursuant to Company policy, contract or
applicable law, on the eighth (8th) day following Xx. Xxxxxxxxxxx'x execution of
this Agreement. The Company will issue the appropriate W-2 form in accordance
with state and federal law, and the regulations of the Internal Revenue Service
on the severance monies paid.
3. STOCK OPTIONS. As set forth in that certain Non-Statutory
Stock Option Agreement (the "Option Agreement"), dated July 19, 2004, Xx.
Xxxxxxxxxxx received options to purchase 200,000 shares of the Company's common
stock pursuant to the Company's 1997 Stock Option Plan (the "Plan"), of which
amount 66,666 options are vested (the "Vested Options") as of the Effective
Date. To the extent not previously exercised, Xx. Xxxxxxxxxxx shall be entitled
to exercise the Vested Options for a period of three (3) years from the
Effective Date, upon and
subject to all other terms and conditions of the Option Agreement and the Plan.
The unvested portion of the option granted in the Option Agreement shall
terminate on the Effective Date.
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4. RELEASE.
(a) Xx. Xxxxxxxxxxx'x Release of the Company. Xx.
Xxxxxxxxxxx, on her own behalf, and on behalf of her heirs, executives,
administrators, successors, and assignees, releases by this Agreement the
Company and each of its past and present agents, employees, representatives,
officers, directors, shareholders, attorneys, accountants, insurers, receivers,
advisors, consultants, partners, partnerships, related companies, parents,
divisions, subsidiaries, assigns, successors, heirs, predecessors-in-interest,
joint venturers, and commonly controlled corporations (collectively,
"Releasees") from all liabilities, causes of action, charges, complaints, suits,
claims, obligations, costs, losses, damages, injuries, rights, judgments,
attorneys' fees, expenses, bonds, bills, penalties, fines, and all other legal
responsibilities of any form whatsoever whether known or unknown, whether
suspected or unsuspected, whether fixed or contingent, including those arising
under any theory of law, whether common, constitutional, statutory or otherwise
of any jurisdiction, foreign or domestic, whether known or unknown, whether in
law or in equity, which she had or may claim to have against any of them by
reason of any and all acts or omissions of Releasees from the beginning of time
to the present, including, but not limited to, those arising out of her
employment with and/or separation from the Company. Xx. Xxxxxxxxxxx specifically
releases claims under all applicable city, county, state and federal laws,
including but not limited to, Title VII of the Civil Rights Act of 1964, as
amended, the Americans with Disabilities Act of 1990, the Age Discrimination in
Employment Act of 1967, the Fair Labor Standards Act, the Rehabilitation Act of
1973, the Family Medical Leave Act, the Employee Retirement Income Security Act,
the Consolidated Omnibus Reconciliation Act of 1986, the California Fair
Employment and Housing Act, California Labor Code, including Sections 200 et
seq., 970, and 132a, the California Constitution and Civil Code, the Workers'
Compensation Act, the Equal Pay Act, and the California Business and Professions
Code; as well as all common law claims, whether arising in tort or contract,
including, but not limited to, wrongful termination in violation of public
policy, breach of contract, breach of the covenant of good faith and fair
dealing, intentional interference with contractual relations, intentional
infliction of emotional distress, and discrimination in violation of public
policy (collectively referred to as "Released Matters").
(b) The Company's Release of Xx. Xxxxxxxxxxx. The
Company, on its own behalf, and on behalf of its successors and assignees,
releases by this Agreement Xx. Xxxxxxxxxxx and her past and present agents,
representatives, attorneys, accountants, insurers, advisors, consultants,
partners, assigns, successors, heirs, predecessors-in-interest, and joint
venturers (collectively, "Releasees") from all liabilities, causes of action,
charges, complaints, suits, claims, obligations, costs, losses, damages,
injuries, rights, judgments, attorneys' fees, expenses, bonds, bills, penalties,
fines, and all other legal responsibilities of any form whatsoever whether known
or unknown, whether suspected or unsuspected, whether fixed or contingent,
including those arising under any theory of law, whether common, constitutional,
statutory or otherwise of any jurisdiction, foreign or domestic, whether known
or unknown, whether in law or in equity, which it had or may claim to have
against any of them by reason of any and all acts or omissions of Releasees from
the beginning of time to the present, including, but not limited to, those
arising out of Xx. Xxxxxxxxxxx'x employment with and/or separation from the
Company. The Company specifically releases claims under all applicable city,
county, state and federal laws, as well as all common law claims, whether
arising in tort or contract, including, but not limited to, breach of contract,
breach of the covenant of good faith and fair dealing, and intentional
interference with
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contractual relations (also collectively referred to as "Released Matters").
5. NO CLAIMS OR ACTIONS. Xx. Xxxxxxxxxxx and the Company agree
that they will not bring against each other any claim or action, civil or
criminal, before any state or federal agency, court or other tribunal in any
jurisdiction, which relates in any way to any and all matters, including the
Released Matters set forth in Sections 4 through 7 herein, from the beginning of
time to the present, including, but not limited to, Xx. Xxxxxxxxxxx'x employment
with and/or resignation from the Company. In addition, the Parties shall not
authorize, approve or assist any third party to take any action that either
Party is prohibited from taking pursuant to the terms of this Agreement.
6. WAIVER OF UNKNOWN CLAIMS. With respect to the Released Matters
described herein, Xx. Xxxxxxxxxxx and the Company expressly waive any and all
rights under Section 1542 of the California Civil Code, and any like provision
or principal of common law in any foreign jurisdiction. Section 1542 provides as
follows:
SECTION 1542. [CERTAIN CLAIMS NOT AFFECTED BY
GENERAL RELEASE] A GENERAL RELEASE DOES NOT
EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT
KNOW OR SUSPECT TO EXIST IN HER FAVOR AT THE
TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN
BY HER MUST HAVE MATERIALLY AFFECTED HER
SETTLEMENT WITH THE DEBTOR.
7. RELEASE OF DOUBTFUL AND DISPUTED CLAIMS. Notwithstanding the
provisions of Section 1542, and for the purpose of implementing a full and
complete release and discharge of all matters released herein, including the
Released Matters, Xx. Xxxxxxxxxxx and the Company expressly acknowledge that
this Agreement is intended to include, without limitation, claims and causes of
action which they do not know or suspect to exist in their favor at the time of
execution hereof, and that this Agreement contemplates extinguishment of all
such claims and causes of action.
8. THE PARTIES' PREVIOUSLY EXECUTED CONFIDENTIAL INFORMATION
AGREEMENT. Notwithstanding the execution of this fully integrated Agreement, to
the fullest extent permitted by law, the Parties expressly agree to remain bound
by the terms and provisions of the Confidential Information Agreement executed
by the Parties on or about July 12, 2004 except that, as consideration for Xx.
Xxxxxxxxxxx'x covenants and promises contained herein, the Company hereby agrees
to waive any and all contractual rights it possesses pursuant to Section 3(b)(1)
of the aforementioned Confidential Information Agreement, and the Parties agree
that the last sentence of Section 3(b) hereby is deleted. Upon execution of this
Agreement, Section 3(b)(1) of the Confidential Information Agreement shall be
null and void and of no force and effect. Such terms and provisions of the
Confidential Information Agreement are expressly incorporated by reference
herein and a copy of that agreement has been attached hereto as EXHIBIT "A". The
Company expressly reserves any common law or other rights it may have with
respect to the subject matters of the Parties Confidential Information
Agreement, including Section 3(b)(1).
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9. RETURN OF COMPANY PROPERTY. Xx. Xxxxxxxxxxx acknowledges that
in the course and scope of her job responsibilities, she was provided with
certain Company property, including, but not limited to a 2004 BMW X5 automobile
(the "BMW Automobile"). Xx. Xxxxxxxxxxx further acknowledges that she had access
to, and was provided, certain files, in written and software form, pertaining to
the Company, as well as certain books, and/or records of the Company. Xx.
Xxxxxxxxxxx hereby agrees to return to the Company immediately upon execution of
this Agreement the following: (i) the aforementioned Company property,
including, but not limited to, the execution and delivery of an assignment in
form and content acceptable to Xx. Xxxxxxxxxxx and the Company to transfer
leasehold title to the BMW Automobile and the payment obligation therefor to the
Company; (ii) any other equipment or Company property whether or not provided to
her by the Company and whether or not listed herein; (iii) all books, records
and/or files of the Company, in whatever form; and (iv) any other confidential
and/or proprietary documents and/or information in her possession, custody or
control. It is agreed that the Company shall have no obligation to fulfill its
obligations hereunder unless and until Xx. Xxxxxxxxxxx fully complies with the
provisions of this section to the satisfaction of the Company.
10. NON-DISPARAGEMENT. The Parties on their own behalf and on
behalf of their respective successors and assignees agree that they will not
publish or communicate in any way any information or opinions intended or likely
to damage the business or personal reputations of the other Party.
11. FULL AND INDEPENDENT KNOWLEDGE. Xx. Xxxxxxxxxxx represents
that she has thoroughly read this Agreement; that she fully understands all of
the provisions of this Agreement; that she agrees to its terms; and that she is
voluntarily entering into this Agreement.
12. NO RELIANCE. Xx. Xxxxxxxxxxx represents and acknowledges that
in executing this Agreement, she does not rely and has not relied upon any
representations or statements made by the Company, or by any of its agents,
representatives or attorneys, with regard to the subject matter, basis or effect
of this Agreement or otherwise, other than as specifically stated in this
written Agreement.
13. NO ADMISSION OF WRONGDOING. This Agreement effects the
settlement of any actual or potential disputes between the Parties which are
denied and contested, and nothing contained herein should be construed as an
admission by either Party of any liability of any kind whatsoever with respect
thereto. All such liability is expressly denied.
14. BINDING. This Agreement shall be binding upon Xx. Xxxxxxxxxxx
and upon her heirs, administrators, representatives, executors, successors and
assigns, and shall inure to the benefit of Releasees, and each of them, and to
their heirs, administrators, representatives, executors, successors and assigns,
upon whom this Agreement shall also be binding.
15. CONSTRUCTION OF THIS AGREEMENT.
(a) Choice of Law. This Agreement is made and entered
into in the State of California, and shall in all respects be interpreted,
enforced and governed by and under the laws of the State of California.
(b) No Modifications Unless In Writing. The Parties to
this Agreement agree
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that any modification of this Agreement must be in writing signed by Xx.
Xxxxxxxxxxx and the Company, and must refer specifically to this Agreement and
the provisions modified. No other modifications will be valid.
(c) Invalid Agreement Provisions. Should any provision of
this Agreement and/or any attachments hereto become legally unenforceable, no
other provision of this Agreement and/or any attachments hereto shall be
affected, and this Agreement and any attachments shall be construed as if they
had never included the unenforceable provision.
(d) No Other Agreements. Except as expressly set forth
herein, this Agreement, including any attachments hereto, shall be and
constitute a full, complete, unconditional and immediate substitution for any
and all rights, claims, demands and causes of action whatsoever, which
heretofore existed or might have existed on behalf of any Party against any
other Party and their successors, predecessors, subsidiaries, affiliates,
parents, shareholders, partners, employees, agents, officers and directors.
Except as expressly set forth herein, this Agreement, including any attachments
hereto, supersedes any and all agreements, whether written or oral, that may
have previously existed between the Parties and constitutes the entire and
complete agreement of the Parties relating in any way to the subject matter
hereof. No statements, promises or representations have been made by any Party
to any other, or relied upon, and no consideration has been offered, promised,
expected or held out other than as may be expressly provided herein.
(e) Attorneys' Fees. Each Party is to bear their own
attorneys' fees and costs in connection with the negotiation and the preparation
of this Agreement and the matters related thereto. If any action or proceeding
is brought to enforce or interpret the terms of this Agreement, the Party who is
determined to be the prevailing party in such matter shall be entitled to
reasonable attorneys' fees, costs and necessary disbursements, in addition to
any other relief to which that Party may be entitled.
(f) Further Assurances. The Parties shall execute,
acknowledge and deliver all such additional instruments, and shall take such
further actions, as may be necessary or appropriate to make effective the
matters contemplated by this Agreement.
(g) Headings. Headings contained in this Agreement are
for convenience only and shall not be used in the interpretation of this
Agreement. Unless otherwise specified, references herein to sections are to be
sections of this Agreement. As used herein, the singular includes the plural,
and vice versa.
(h) Practices Inconsistent with this Agreement. No
provision of this Agreement shall be modified or construed by any practice that
is inconsistent with such provision, and failure by Xx. Xxxxxxxxxxx or Releasees
to comply with any provision, or to require another Party to comply with any
provision, shall not affect the rights of any Party thereafter to comply or
require the other to comply.
(i) Agreement Jointly Negotiated. Each of the Parties
acknowledge that this Agreement was jointly negotiated and reviewed and approved
by them and their respective attorneys of record. The Agreement shall not be
construed by any court of law or equity against
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any Party solely by virtue of any Party having drafted this Agreement.
16. EXECUTION IN COUNTERPARTS. This Agreement may be executed and
delivered in two or more counterparts, each of which, when so executed and
delivered, shall be the original, but such counterparts together shall
constitute but one and the same instrument.
IN WITNESS WHEREOF, the Parties have executed this instrument on the
dates indicated below.
Xxxxx X. Xxxxxxxxxxx
THE RICEX COMPANY
By: /s/ XXX XXXXX
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Its: CEO
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