EXHIBIT 10.3
SEPARATION AND RELEASE AGREEMENT
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THIS AGREEMENT is entered into as of this 3rd day of June, 2002 by and
between Xxxxxxxxx Xxxxxx (hereinafter referred to as "Employee") and Helix
BioMedix, Inc. (hereinafter referred to as "Employer").
RECITALS
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WHEREAS, Employee has been employed by Employer; and
WHEREAS, both parties to this Agreement wish to clearly set forth the terms
and conditions of Employee's separation from employment;
NOW, THEREFORE, for and in consideration of the mutual promises and
covenants contained herein, and for good and valuable consideration, the receipt
and adequacy of which is acknowledged by each of the parties hereto, the parties
agree as follows:
EMPLOYER'S OBLIGATIONS
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1. Payment.
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Employer agrees to pay Employee her base salary through the Separation Date
specified below, subject to applicable withholding. To the extent that Employee
has accrued, unused vacation, Employee agrees to use this time in June 2002. In
addition, as consideration for and subject to Employee's agreement to the terms
set forth in this Agreement, Employer will pay her a sum equal to six month's
base salary, subject to applicable withholding, at regular payroll intervals
beginning on the first payroll date following Employee's execution of this
Agreement ("the Separation Payment"), subject to reduction pursuant to the
provisions of Section 8 below. Except as otherwise provided in this Agreement,
Employee agrees that Employer does not owe Employee for any other payments
except that Employee will be reimbursed for any reasonable business expenses
Employee has incurred prior to the Separation Date for which Employee submits
appropriate documentation pursuant to Employer's reimbursement policies within
30 days of the Effective Date of this Agreement.
2. Medical Coverage.
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Employer will pay the premium for Employee's continued coverage under
Employer's health care plans through the Separation Date. Thereafter, Employee
may elect to continue coverage under Employer's health care plans at her own
expense pursuant to the provisions of COBRA.
3. Stock Options.
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Employer agrees to comply with its obligations regarding stock options
pursuant to Section 3(c) of Employee's Employment Agreement ("Employment
Agreement") and to issue appropriate documentation reflecting all options
granted.
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4. Car Expenses.
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Employer agrees to reimburse Employee for reasonable expenses, up to one
thousand five hundred dollars ($1,500), for transporting Employee's car from
Washington State to Louisiana. Employee agrees to submit appropriate receipts
and documentation to Employer within 30 days of transportation.
5. Apartment Lease.
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Employer agrees to buy out Employee's lease of an apartment located at
00000 00xx Xxxxx XX, #X000, Xxxxxxx, XX 00000.
6. Letter Regarding Employment.
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Employer will provide a letter regarding Employee's employment upon request
by Employee as to a specific prospective employer on Helix letterhead in the
form attached hereto as Exhibit A.
EMPLOYEE'S OBLIGATIONS
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7. Separation Date.
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Employer and Employee agree that Employee's last date of employment is July
1, 2002 ("Separation Date"). Until the Separation Date, Employee agrees to use
her best efforts in the performance of her duties, and to cooperate fully with
Employer in training and working with her replacement, and with other aspects of
her transition out of her position with Employer.
8. Best Efforts to Obtain Other Employment.
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Employee agrees to use her best efforts to obtain other employment within a
reasonable time after separation. Employee agrees to notify Employer when she
accepts other employment. In the event that Employee obtains other employment
within six months of the Separation Date, the Separation Payment referenced in
Section 1 will be reduced by the amount of base salary Employee receives from
her new employment.
9. No Authority.
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Employee understands and agrees that effective as of the Separation Date,
she is no longer authorized to incur any expenses or obligations or liabilities
on behalf of Employer nor represent herself as an employee of Employer.
10. Personal Expense Budget.
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Employee understands and agrees that she is forfeiting any further right to
her personal expense budget with Employer. Any funds or amounts remaining in the
budget following the Separation Date will belong to Employer.
11. Return of Property.
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Employee warrants and represents that as of the Separation Date, she has
returned to the Employer all company-owned property in Employee's possession,
including, but not limited to, credit cards, access cards, keys to company
buildings or property, all company-owned equipment, computers, cell phones and
related equipment, and all company documents and papers, customer lists,
manuals, files, price lists, and all other trade secrets and/or confidential
company information, and all copies thereof, in paper, electronic or other form.
12. Waiver and Release of Claims by Employee.
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(a) With the exception of the obligations arising under this
Agreement, Employee knowingly and voluntarily, unconditionally and forever,
waives and releases any and all claims, damages, causes of action and
rights, whether known or unknown, contingent or noncontingent, contractual
or otherwise against Employer or any of its related, affiliated or
subsidiary organizations, and each of its and their respective directors,
officers, agents, representatives and employees, past and present, and each
of their successors and assigns ("Releasees"). Employee makes this
commitment even though Employee understands that she may not, as of this
date, know all of the claims she may lawfully have against the Releasees
and that she is relinquishing the right to pursue any claims which she
could have pursued before courts without having the opportunity to pursue
those claims to a trial and have the damages, if any, set by a judge and/or
jury.
(b) Employee acknowledges that among the claims that she is releasing
are any claims she may have for compensation or benefits, wrongful
discharge, negligent or intentional infliction of emotional distress,
personal injury, defamation, libel, invasion of privacy, fraud, breach of
fiduciary duty, negligent or intentional misrepresentation, breach of
contract, promissory estoppel, wage and hour violations including but not
limited to violations of the Fair Labor Standards Act (FLSA) and Washington
Minimum Wage Act (WMA); discrimination and/or harassment in violation of
any local, state, or federal law such as Title VII of the Civil Rights Act
of 1964, the Equal Pay Act, the Americans with Disabilities Act, the Age
Discrimination in Employment Act, the Older Workers Benefit Protection Act,
the Civil Rights Act of 1991, Section 1981 of the Civil Rights Act of 1866,
and the Washington Law Against Discrimination; claims under the Family and
Medical Leave Act, the Workers Adjustment and Retraining Notification Act,
and the Employment Retirement Income Security Act (ERISA); as well as any
other local, state or federal statutes, administrative regulations or legal
doctrines governing claims arising out of or relating to employment or the
separation thereof. This release includes any claims pursuant to statute or
otherwise for attorneys' fees and costs, and Employee agrees that she will
bear her own attorneys' fees and costs
(c) This waiver and release shall not waive or release claims (i)
where the events in dispute first arise after execution of this waiver and
release; or (ii) relating to Employee's rights to indemnity as a corporate
officer.
13. Nondisclosure.
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Employee agrees to comply fully with all continuing obligations under
Section 8 of the Employment Agreement she signed upon hire, the terms of which
are incorporated by reference herein.
14. Nondisparagement.
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Employee agrees not to make any statements, verbally or in writing, about
the Employer and its officers, directors, employees and agents in any manner
that is intended to, or does, call into question their morality, conduct,
business ability, or business judgment; provided that Employee will respond
accurately and fully to any question, inquiry or request for information when
required by legal process.
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15. Confidentiality.
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Employee agrees that from the date of this Agreement forward she will keep
the terms of this Agreement confidential and will not disclose the fact or terms
to anyone except to members of Employee's immediate family, attorney or
counselor, and persons assisting her in financial planning or income tax
preparation, provided that these people agree to keep such information
confidential. Without limiting the foregoing, Employee agrees that it shall be a
breach of this provision for Employee to in any way disclose, discuss, or
characterize the terms of the Agreement to third parties.
MISCELLANEOUS
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16. Free and Voluntary Act of Employee.
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Employee agrees that she is entering into this Agreement freely and
voluntarily act and that she has been given at least twenty-one (21) days to
decide whether to sign this Agreement, and signs it only after full reflection
and analysis. Employee further acknowledges that she has been advised to obtain
an attorney's independent counsel and advice; that she has read it carefully and
fully understands all of its provisions; and that neither Employer nor its
agents or representatives have made any representations to Employee concerning
the terms or effects of this Agreement other than those contained herein. If
Employee elects to sign this Agreement prior to the expiration of the 21 day
period, Employee acknowledges and agrees that Employee had adequate time and
opportunity to fully consider her rights and this release of them.
17. No Admission of Liability.
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This Separation and Release Agreement shall not be construed as an
admission by Employer or Employee of any wrongdoing, improper conduct,
liability, breach of any agreement between Employer or Employee, or violation by
Employer or Employee of any statute, law or regulation. Both parties agree that
neither this Agreement nor any of its terms or conditions will be offered or
received in evidence in any proceeding or used in any manner as an admission of
wrongdoing or liability on either party's part.
18. Governing Law and Venue.
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Interpretation and enforcement of this Agreement shall be governed by the
substantive laws which exist in the State of Washington on the date of execution
of this Agreement. In any dispute arising out of or relating to this Agreement,
the parties agree that venue shall be had in King County, Washington.
19. Revocation.
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This Agreement may be revoked by Employee by returning written notice of
revocation to Xxxxx Xxxxxx at the following address within seven (7) days of
Employee's execution of the Agreement: Helix BioMedix, Inc., 00000 00xx Xxxxxx
XX, Xxxxxxx XX 00000. Unless revoked in accordance with this paragraph, the
Agreement will become final and irrevocable on the 8th day following Employee's
execution of the Agreement.
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20. Changes to Agreement.
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This Agreement may not be changed orally, but only in writing signed by all
parties.
21. Entire Agreement.
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This Agreement and Sections 3(c) and 8 of the Employment Agreement
constitute the entire agreement between the parties and it fully replaces and
supersedes all prior arrangements, discussions, negotiations and agreement
between the parties, including but not limited to the remaining provisions of
the Employment Agreement.
22. Enforcement.
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In any action to enforce any of the provisions of this Agreement, the
prevailing party shall be entitled to recover its reasonable attorney's fees and
costs, in addition to any other damages and remedies available at law or in
equity
23. Arbitration.
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Any controversies or claims out of or relating to this Agreement shall be
fully and finally settled by arbitration in the City of Seattle, Washington in
accordance with the rules of the American Arbitration Association then in effect
("the AAA Rules"), conducted by one arbitrator either mutually agreed upon by
the Company and Executive or chosen in accordance with the AAA Rules, except
that the parties shall have any right to discovery as would be permitted by the
Federal Rules of Civil Procedure for a period of 90 days following the
commencement of such arbitration, and the arbitrator shall resolve any dispute
that arises in connection with such discovery. Judgment upon the award rendered
by the arbitrator may be entered in any court having jurisdiction.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the
date first set forth above.
EMPLOYER: HELIX BIOMEDIX, INC.
By: /s/ R. Xxxxxxx Xxxxxx
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Its: President
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Date: 06/03/02
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EMPLOYEE: Xxxxxxxxx Xxxxxx
Date: 06/03/02
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EXHIBIT A
July 6, 2002
To Whom It May Concern:
I have known Xxx. Xxx Xxxxxx since 1997 when we met in an executive program for
MBAs. During our year and a half of classes together, I was very impressed with
Xxx. Xxxxxx'x leadership and management skills.
In 1999, I approached her to join me at Helix BioMedix, Inc., a public
biotechnology company, as one of four executives charged with re-inventing the
company over a two year period. Until Xxx. Xxxxxx resigned in July 2002, she was
Vice President of the company responsible for most non-science operations. These
responsibilities included (1) managing and coordinating our regulatory reports
including our SEC reports and the various record keeping requirements of
successful private placements in 1999 and 2002; (2) developing and implementing
our corporate marketing plan; and (3) jointly coordinating the move of our
corporate headquarters from New Orleans, Louisiana, to Bothell, Washington.
During Xxx. Xxxxxx'x tenure at Helix BioMedix, the company grew from a single
employee company with a handful of patents to a company with eight employees
plus numerous consultants, and over 30 patents. In addition, the company has
negotiated one license, and is well on its way to negotiating additional
licenses that are projected to generate the first substantial revenue in the
history of the company.
As President and CEO of the company and the person to whom Xxx. Xxxxxx reported
throughout her career at Helix BioMedix, I can state unequivocally that she made
major contributions to the success we have had over the past three years.
Sincerely,
/s/ R. Xxxxxxx Xxxxxx
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R. Xxxxxxx Xxxxxx
President & CEO
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