EXHIBIT 10.32
SEPARATION AGREEMENT AND
GENERAL MUTUAL RELEASE OF ALL CLAIMS
This Separation Agreement and General Mutual Release of All
Claims is made and entered into this 12th day of October, 2001, by and between
INFORMAX, INC. (hereinafter "InforMax") and XXXXX XXXXXXXXX, M.D. (hereinafter
"Xx. Xxxxxxxxx").
WHEREAS Xx. Xxxxxxxxx was a founder of InforMax and is currently
the InforMax President and Chief Operating Officer and is a member of its Board
of Directors ("Board"),
WHEREAS Xx. Xxxxxxxxx and InforMax have agreed that Xx.
Xxxxxxxxx will resign as InforMax Chief Operating Officer and President and will
resign his position on the Board, and
WHEREAS InforMax and Xx. Xxxxxxxxx have agreed to conclude all
potential disputes between them and provide for an orderly termination of the
employment relationship and Board membership on the basis of the terms and
conditions set forth in this Separation Agreement and General Release of All
Claims.
NOW, THEREFORE, AND IN CONSIDERATION of the mutual promises of
the parties to this Separation Agreement and General Release of All Claims
(hereinafter the "Separation Agreement" or "Agreement"), the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Separation. Xx. Xxxxxxxxx shall resign from his
employment position as Chief Operating Officer effective October 12, 2001, and
shall resign from his employment position as President and shall resign his
membership on the Board of Directors effective December 31, 2001 which shall be
referred to as the "Effective Date of Separation." Unless the parties agree
otherwise, Xx. Xxxxxxxxx'x separation shall be announced on October 15, 2001.
The announcement is attached as Attachment A to this Agreement. Between October
12, 2001 and December 31, 2001, although continuing employment as InforMax
President, Xx. Xxxxxxxxx shall be on leave and shall not exercise any duties as
President, except that he will perform those transition tasks directed by the
InforMax Board of Directors. Xx. Xxxxxxxxx'x base salary as of the date of this
Agreement shall continue in full through December 31, 2001 and as provided in
Section 3 below. Xx. Xxxxxxxxx will receive an additional payment of $50,000 as
his bonus for 2001, which shall be paid on or about the time that bonuses are
paid to other InforMax employees. Xx. Xxxxxxxxx'x benefits shall continue in
full until the Effective Date of Separation, and thereafter shall terminate in
accordance with the terms of the respective benefits plans and InforMax's
standard policies and procedures, except as provided in
Section 3 below. InforMax shall reimburse Xx. Xxxxxxxxx for appropriate and
reasonable expense vouchers and receipts incurred on or before his Effective
Date of Separation, if any, in accordance with InforMax's applicable policy and
procedure. Upon his Effective Date of Separation, Xx. Xxxxxxxxx shall not be
entitled to the receipt of any payments or benefits from InforMax other than
those provided for in this section or section 3 below.
2. Mutual Release.
(a) Xx. Xxxxxxxxx, his attorneys, heirs, executors,
administrators, successors, and assigns does fully release and discharge
InforMax, its parent, subsidiary and affiliate corporations, and related
companies, as well as all predecessors, successors, assigns, directors,
officers, partners, agents, employees, former employees, executors, attorneys,
and administrators (hereinafter "InforMax, et al."), from all grievances, suits,
causes of action, and/or claims of any nature whatsoever, whether known,
unknown, or unforeseen, which he has or may have against InforMax, et al., for
any reason whatsoever, whether in law or in equity, under Federal, state or
other law, whether the same be upon statutory, tort, contract or other basis,
including, but not limited to, all charges, complaints, and claims arising out
of any event, transaction, or matter that occurred before the date of this
Separation Agreement, and specifically including any and all claims arising out
of the Shareholder's Agreement dated September 1, 1990, the First Amendment to
the Shareholders' Agreement dated August 17, 1999, the Second Amendment to
Shareholders' Agreement dated March 29, 2000, the InforMax, Inc. Stock Option
Agreements dated June 14, 1995 and March 19, 1999 or any other stock option
agreement or amendment thereof entered into by InforMax and Xx. Xxxxxxxxx
(collectively "Stock Agreements"). Xx. Xxxxxxxxx covenants that neither he, nor
any person, organization, or other entity on his behalf, will xxx InforMax, et
al., or initiate any type of action on his behalf, judicial, administrative, or
otherwise against InforMax, et al., with respect to any event, transaction, or
matter that occurred before the date of this Separation Agreement, or with
respect to any continuing effects of such prior events, transactions, or
matters, including those arising out any Stock Agreements. It is expressly
agreed and understood that this release is a GENERAL RELEASE.
This release and discharge specifically includes, but is not
limited to, all claims for breach of contract, employment discrimination
(including but not limited to, discrimination on the basis of race, sex,
religion, national origin, age, marital status, disability or any other
protected status), including but not limited to claims under Title VII of the
Civil Rights Act, as amended, the Age Discrimination in Employment Act ("ADEA"),
as amended, the Older Workers Benefit Protection Act, the Americans with
Disabilities Act, or any similar federal, state or local law, including but not
limited to Article 49B of the Maryland Code, claims under the Employee
Retirement Income Security Act of 1974, or claims arising out of any
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alleged restrictions on the right of InforMax, et al., to terminate employees,
and/or claims concerning job classification, recruitment, hiring, salary rate,
sick pay, holiday pay, vacation pay, severance pay, wages or benefits due,
overtime pay, stock and stock options, promotions, transfers, employment status,
libel, slander, defamation, promissory estoppel, intentional or negligent
misrepresentation and/or infliction of emotional distress, together with any and
all tort, contract, or other claims which might have been asserted by Xx.
Xxxxxxxxx or on his behalf in any suit, grievance, charge of discrimination, or
claim against InforMax, et al. Xx. Xxxxxxxxx hereby expressly releases and
forever discharges InforMax, et al. from any and all claims, demands, and/or
causes of action that may exist under all written agreements between Xx.
Xxxxxxxxx and InforMax, et al., including but not limited to the Stock
Agreements. Xx. Xxxxxxxxx hereby forever releases InforMax, et al., from any
liability or obligation to reinstate or reemploy him in any capacity and waives
any right to be hired or placed in any position or to any future employment of
any nature with InforMax, et al.
Xx. Xxxxxxxxx represents that he has not filed or joined in any
claims, charges or complaints against InforMax, et al., and that he is aware of
no person entitled to make a claim or file a charge of any kind on his behalf
relating to or arising out of his employment with InforMax, et al.
(b) InforMax, for itself, any parent, subsidiary and
affiliate corporations, related companies, as well as all of its predecessors,
successors, assigns, trustees, and creditors, does fully release and discharge
Xx. Xxxxxxxxx, his attorneys, heirs, executors, administrators, successors,
assigns, trustees, and creditors (hereinafter "Xx. Xxxxxxxxx, et al."), from all
grievances, suits, causes of action, and/or claims of any nature whatsoever,
whether known, unknown, or unforeseen, which it has or may have against Xx.
Xxxxxxxxx, et al., for any reason whatsoever, whether in law or in equity, under
Federal, state or other law, whether the same be upon statutory, tort, contract
or other basis, including, but not limited to, all charges, complaints, and
claims arising out of any event, transaction, or matter that occurred before the
date of this Separation Agreement, and specifically including any and all claims
arising out of the Stock Agreements referenced above. InforMax covenants that
neither it, nor any person, organization, or other entity or representative on
its behalf or in its name, will xxx Xx. Xxxxxxxxx, et al., or initiate any type
of action, judicial, administrative, or otherwise against Xx. Xxxxxxxxx, et al.
with respect to any event, transaction, or matter that occurred before the date
of this Separation Agreement, or with respect to any continuing effects of such
events, transactions, or matters, including those arising out any Stock
Agreements. Notwithstanding the above or any other provisions in this Separation
Agreement, this Release does not include any acts which are the subject of a
suit, cause of action or claim of any nature on behalf of (but not by) InforMax
and for which no indemnification exists pursuant to InforMax's ByLaws.
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3. Severance. Xx. Xxxxxxxxx'x full base annual salary as of
the date this Agreement is executed, which the parties agree is $275,000, shall
be continued through December 31, 2002. These payments shall be made in
accordance with InforMax's usual payroll procedures, including the payroll
periods. Xx. Xxxxxxxxx shall also be allowed to keep his two computers, his palm
pilot and cellular telephone with the understanding that the computer hard
drives shall be replaced by InforMax at its expense. Xx. Xxxxxxxxx'x benefits
shall terminate as of the Effective Date of Separation in accordance with the
terms of the respective benefits plans and InforMax's standard policies and
procedures, except that Xx. Xxxxxxxxx may continue his health insurance benefits
pursuant to the Consolidated Omnibus Budget Reconciliation Act as amended
("COBRA"). In the event Xx. Xxxxxxxxx elects to continue health insurance
coverage under COBRA, InforMax will make payments on behalf of Xx. Xxxxxxxxx
through December 31, 2002 to the same extent it made these payments before his
separation; if Xx. Xxxxxxxxx is unemployed as of December 31, 2002, InforMax
will continue to pay for COBRA coverage until the earlier of his obtaining
employment or June 30, 2002. Xx. Xxxxxxxxx shall not be eligible for any form of
bonus for 2002 or thereafter. Upon his Effective Date of Separation, Xx.
Xxxxxxxxx shall not be entitled to the receipt of any payments or benefits from
InforMax other than those provided for in this section or section 1 above.
4. Stock and Stock Option Agreements. The parties
acknowledge that the Shareholder's Agreement dated September 1, 1990, the First
Amendment to the Shareholders' Agreement dated August 17, 1999, and the Second
Amendment to Shareholders' Agreement dated March 29, 2000 are being terminated
pursuant to a Termination Agreement to be entered by the parties and other
shareholders on or around the date that this Separation Agreement is executed.
The parties acknowledge and agree that, notwithstanding any other provisions of
this Agreement, this Agreement shall not in any way revise or affect the
InforMax, Inc. Stock Option Agreements between InforMax and Xx. Xxxxxxxxx dated
June 14, 1995 and March 19, 1999.
5. Xx. Xxxxxxxxx'x Continuing Obligations to InforMax. Xx.
Xxxxxxxxx continues to owe InforMax those obligations set forth in the
Confidential Information, Non-Competition, Non-Solicitation and Intellectual
Property Agreement that he executed on or about June 22, 1999 ("Confidentiality
Agreement"), and the First Amendment to Confidential Information,
Non-Competition, Non-Solicitation and Intellectual Property Agreement dated 22
June 1999 Between InforMax, Inc. and Xxxxx X. Xxxxxxxxx that he executed on or
about August 15, 2000 ("Amendment to Confidentiality Agreement"), except that
the parties agree the first sentence of paragraph 2 of the Confidentiality
Agreement is hereby amended to include a twelve (12) month, rather than a
twenty-four (24) month, non-competition period. That sentence is hereby amended
to state:
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2. Noncompetition. During the term of Xxxxxxxxx'x
employment by the Company and for a period of twelve (12) months
after termination of such employment (the "Noncompetition
Period"), Xxxxxxxxx shall not, directly or indirectly, as an
officer, director, employee, consultant, owner, shareholder,
adviser, joint venturer, or otherwise, compete with the Company
Business.
Other than as stated in this Section 5, and notwithstanding any other provision
in this Separation Agreement, the Confidentiality Agreement and Amendment to
Confidentiality Agreement shall continue in full force and effect, all
obligations pursuant to such agreements shall continue beyond the termination of
the employment relationship between the parties, and Xx. Xxxxxxxxx shall remain
bound by such obligations.
6. Return of Proprietary Information. Xx. Xxxxxxxxx
represents that, pursuant to Section 1(c) of the Confidential Information,
Non-Competition, Non-Solicitation and Intellectual Property Agreement, he has
returned to InforMax all documents and other tangibles, including but not
limited to diskettes and other electronic or storage media, that contain
InforMax confidential and/or proprietary information, as defined in Section 1 of
that Agreement.
7. Non-Disparagement. Xx. Xxxxxxxxx expressly agrees that
he will not make any knowingly false, disparaging, or derogatory comments, in
public or in private, about InforMax, et al., about the business affairs or
financial condition of InforMax, et al., or about any employee, director or
officer of InforMax, et al. InforMax agrees that its officers and directors
shall not make any knowingly false, disparaging, or derogatory comments
concerning Xx. Xxxxxxxxx to any third parties.
8. Confidentiality.
(a) Except as provided by subsection (d) below, Xx.
Xxxxxxxxx and InforMax agree not to disseminate or disclose to any person or
entity the fact of or terms of this Separation Agreement, the discussions
leading to this Separation Agreement, or any subsidiary undertakings required by
this Separation Agreement, except that Xx. Xxxxxxxxx may disclose such
information to his spouses, attorney and accountant or as otherwise required by
law, and InforMax may disclose such information to its officers, directors,
attorneys, accountants, and as necessary to fulfill its obligations to the U.S.
Securities and Exchange Commission and to its investors or as otherwise required
by law.
(b) Except as provided by subsection (d) below, and as
necessary to enforce the terms of this Separation Agreement, Xx. Xxxxxxxxx and
InforMax further agree that no part of this Separation Agreement is to be
construed as, used
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as, or admitted into evidence in any proceeding of any character, judicial,
administrative or otherwise, now pending or subsequently instituted.
(c) Except as provided in subsection (d) below, Xx.
Xxxxxxxxx and InforMax further agree that they will not provide any form of
assistance, support, or information, including but not limited to documents,
testimony, or written or oral statements, to any person that is asserting,
investigating or intending to assert any claims against InforMax, et al. or
against Xx. Xxxxxxxxx, et al.
(d) No provision of this Separation Agreement shall be
construed as prohibiting the provision of truthful and accurate information by
Xx. Xxxxxxxxx or InforMax in response to a subpoena issued by a court of
competent jurisdiction or other duly authorized entity. However, Xx. Xxxxxxxxx
agrees to notify InforMax, et al., and InforMax agrees to notify Xx. Xxxxxxxxx,
et al., promptly before complying with such a subpoena so that the parties may
protect their interests, including moving to quash the subpoena.
9. No Other Consideration. Xx. Xxxxxxxxx affirms that the
terms stated herein are the only consideration for signing this Separation
Agreement and that no other representations, promises, or agreements of any kind
have been made by any person or entity to cause him to sign this Separation
Agreement. Xx. Xxxxxxxxx has accepted the terms of this Separation Agreement
voluntarily and without coercion.
10. Modification. This Separation Agreement may not be
released, discharged, abandoned, supplemented, changed, or modified in any
manner, orally or otherwise, except by an instrument in writing signed and duly
executed by each of the parties hereto.
11. Entire Agreement. This Separation Agreement along with
the Confidentiality Agreement and Amendment to Confidentiality Agreement as
modified herein and the Stock Option Agreements, contain and constitute the
entire understanding and agreement on the matters set forth herein between the
parties and supersedes and cancels all previous negotiations, agreements,
commitments, and writings in connection herewith.
12. Waiver. Failure to insist upon strict compliance with
any term, covenant, or condition of this Separation Agreement shall not be
deemed a waiver of such term, covenant, or condition, nor shall any waiver or
relinquishment of any right or power under this Separation Agreement at any time
or times be deemed a waiver or relinquishment of such right or power at any
other time or times.
13. Enforcement. Xx. Xxxxxxxxx agrees that the restrictions
contained in this Agreement, the Confidentiality Agreement and Amendment to
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Confidentiality Agreement are reasonable and necessary to protect the business
of InforMax and that any violation of his obligations under these Agreements
would cause InforMax substantial irreparable injury. Accordingly, Xx. Xxxxxxxxx
agrees that a remedy at law for any breach of the obligations in these
Agreements would be inadequate and that InforMax, in addition to any other
remedies available, shall be entitled to obtain preliminary and permanent
injunctive relief to secure specific performance of such obligations and to
prevent a breach or threatened breach of these Agreements without the necessity
of proving actual damage and without the necessity of posting bond or security,
which he expressly waives. Xx. Xxxxxxxxx agrees to provide InforMax a full
accounting of all proceeds and profits received by him as a result of or in
connection with a breach of these Agreements. Unless prohibited by law, InforMax
shall have the right to retain any amounts otherwise payable by the Company to
him to satisfy any of his obligations as a result of any breach of these
Agreements. InforMax shall also have the right to immediately terminate any
payments due to Xx. Xxxxxxxxx under this Separation Agreement in the event of a
material breach of any of the Agreements. Xx. Xxxxxxxxx further agrees to
indemnify and hold harmless InforMax from and against any damages incurred by
InforMax as assessed by a court of competent jurisdiction as a result of any
breach of these Agreements by him. He agrees that each of his obligations
specified in these Agreements is a separate and independent covenant that shall
survive termination of his employment for any reason.
14. Severability. Invalidity or unenforceability of any
provision of this Separation Agreement shall in no way affect the validity of
enforceability of any other provision.
15. Assignability. InforMax may, with reasonable advance
notice but without the consent of Xx. Xxxxxxxxx, assign its rights and
obligations under this Separation Agreement to any successor entity.
16. Choice of Law and Forum Selection. The terms of this
Separation Agreement shall be governed by the laws of the State of Maryland. Xx.
Xxxxxxxxx agrees and submits to the exclusive jurisdiction of any court in the
State of Maryland where there is proper venue or any federal court sitting in
Maryland, in any action or proceeding arising out of or relating to this
Separation Agreement or the transactions contemplated herein, and agrees that
all claims in respect of any such action or proceeding may be heard or
determined in such Maryland or Federal Court. Xx. Xxxxxxxxx understands and
agrees that any action or proceeding arising out of or relating to this
Separation Agreement or the transactions contemplated herein shall be within the
exclusive jurisdiction of the State of Maryland or any federal court sitting in
Maryland.
17. Counterparts. This Separation Agreement may be executed
in two or more counterparts, each of which shall be deemed to be an original,
but all of which together will constitute one and the same Separation Agreement.
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18. Indemnification. Xx. Xxxxxxxxx shall have those rights
to indemnification in his capacity as a former director and officer set forth in
the InforMax, Inc. ByLaws.
19. Revocation Period. Xx. Xxxxxxxxx acknowledges that he
has the opportunity of twenty-one (21) days to consider this Separation
Agreement and that he has been encouraged by InforMax to consult with legal
counsel. The parties recognize that Xx. Xxxxxxxxx may elect to sign this
Separation Agreement prior to the expiration of the twenty-one (21) day
consideration period specified above, and Xx. Xxxxxxxxx agrees that if he elects
to do so he shall manifest such election by signing Attachment B hereto.
Further, he understands that for a period of seven (7) days following execution
of this Separation Agreement, he has the right to revoke it, including his
waiver of claims under the ADEA, a federal statute that prohibits employers from
discriminating against its employees who are at least 40 years of age
("Revocation Period"). He agrees that if he elects to revoke this Separation
Agreement within this seven (7) day period, he must inform InforMax by
delivering a written notice of revocation to InforMax no later than 5:00 p.m. on
the seventh calendar day after he signs the release. Such notice must be
delivered to Xxx Xxxxxx, InforMax, Inc., 0000 Xxxxxxxxx Xxxxxx, Xxxxx #0000,
Xxxxxxxx, XX 00000. Xx. Xxxxxxxxx agrees that if he elects to exercise this
revocation right, this Separation Agreement shall, at the option of InforMax be
completely void and Xx. Xxxxxxxxx shall not be entitled to receive the benefits
described in this Separation Agreement.
20. Acknowledgements. Xx. Xxxxxxxxx has fully discussed the
terms of this Separation Agreement with the counsel of his choosing and has
fully reviewed with counsel any potential claims against InforMax, et al. BASED
UPON DISCUSSIONS WITH COUNSEL OF HIS CHOICE, XX. XXXXXXXXX HEREBY ACKNOWLEDGES
THAT HE UNDERSTANDS THE TERMS OF THIS SEPARATION AGREEMENT AND GENERAL RELEASE.
XX. XXXXXXXXX FURTHER ACKNOWLEDGES THAT HE HAS CAREFULLY READ
AND FULLY UNDERSTANDS THE PROVISIONS OF THIS SEPARATION AGREEMENT AND GENERAL
RELEASE, INCLUDING THE RELEASE OF ALL CLAIMS, THAT HE HAS HAD THE OPPORTUNITY TO
FULLY DISCUSS IT WITH COUNSEL, THAT HE KNOWS THE CONTENTS OF THE SEPARATION
AGREEMENT, THAT HE HAS BEEN GIVEN A PERIOD OF TWENTY-ONE (21) DAYS WITHIN WHICH
TO CONSIDER THIS SEPARATION AGREEMENT, AND THAT HE UNDERSTANDS THAT HE HAS THE
RIGHT TO REVOKE THE SEPARATION AGREEMENT WITHIN SEVEN (7) DAYS OF THE DATE HE
SIGNS IT, AFTER WHICH IT BECOMES FULLY ENFORCEABLE.
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XX. XXXXXXXXX FURTHER ACKNOWLEDGES THAT HE IS SIGNING THE
SEPARATION AGREEMENT VOLUNTARILY AND WITHOUT COERCION BECAUSE HE BELIEVES THAT
IT IS FAIR AND REASONABLE AND FOR NO OTHER REASON. XX. XXXXXXXXX FREELY AND
VOLUNTARILY AGREES TO ALL THE TERMS AND CONDITIONS OF THE SEPARATION AGREEMENT,
AND SIGNS THE SAME AS HIS OWN FREE ACT.
IN WITNESS WHEREOF, the parties have duly executed this
Separation Agreement and General Release of All Claims by their signatures
below:
XX. XXXXXXXXX INFORMAX, INC.
/S/ Dr. Xxxxx Xxxxxxxxx /S/ Xxxx X. Xxxxx
----------------------------- --------------------------------
By: Xxxx X. Xxxxx
Title: EVP, Finance & Administration
Date: 10/12/2001 Date: 10/12/2001
WITNESS: WITNESS:
/S/ Xxxxx Xxxxxx /S/ Illegible
----------------------------- ------------------------------------
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ATTACHMENT A
ANNOUNCEMENT OF RESIGNATION FROM POSITIONS
AS PRESIDENT AND CHIEF OPERATING OFFICER
ATTACHMENT B
ELECTION TO EXECUTE PRIOR TO EXPIRATION OF
TWENTY-ONE DAY CONSIDERATION PERIOD
I, Xxxxx X. Xxxxxxxxx, M.D., understand that I have at least
twenty-one (21) days within which to consider and execute the foregoing
Separation Agreement and General Release of All Claims. However, after having an
opportunity to consult counsel, I have freely and voluntarily elected to execute
the Separation Agreement before the twenty-one (21) day period has expired.
10/12/2001 /S/ Dr. Xxxxx Xxxxxxxxx
----------------------------- -----------------------
Date Xx. Xxxxxxxxx
