EXHIBIT 10.11
SEPARATION AGREEMENT AND RELEASE
This Separation Agreement and Release ("Agreement and Release") is made as of
November 26, 2003 (the "Execution Date"), by and among Helix BioMedix, Inc., and
Xxxxx Xxxxxx ("Xxxxxx"). Helix and Xxxxxx are sometimes referred to collectively
as the "Parties."
RECITALS
I. Effective January 1, 2003, Helix and Xxxxxx entered into an Employment
Agreement ("Employment Agreement") pursuant to which Helix agreed to
employ Xxxxxx, and Xxxxxx accepted employment, as Chief Financial
Officer of Helix.
II. On November 26, 2003, Xxxxxx desires to voluntarily resign from his
position as the Chief Financial Officer and Helix is willing to accept
Xxxxxx'x resignation and to terminate the Employment Agreement
pursuant to the terms and conditions of this Agreement and Release.
III. The Parties also desire to settle and resolve any and all possible
disputes growing out of or related to Xxxxxx'x employment relationship
with Helix, including but not limited to any possible claims Xxxxxx
could assert against Helix and any affiliates, subsidiaries,
directors, officers, shareholders, employees, agents or anyone else
against whom Xxxxxx could assert a claim due to his employment with
Helix or its termination.
AGREEMENT AND RELEASE
Therefore, Helix on the one hand and Xxxxxx on the other hand, intending to be
legally bound, agree as follows:
1. NON-ADMISSION; CONFIDENTIALITY OF AGREEMENT AND RELEASE
Xxxxxx agrees that this Agreement and Release is not an admission by
Helix that it (or any of its directors, officers, shareholders,
employees or agents) has violated any law or failed to fulfill any
duty to Xxxxxx. Xxxxxx and Helix both agree to keep this Agreement and
Release confidential, except insofar as disclosure may be required for
legal or business reasons.
2. TERMINATION OF EMPLOYMENT
Helix and Xxxxxx agree to discontinue Xxxxxx'x employment relationship
and terminate the Employment Agreement, effective November 26, 2003
("Resignation Date").
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3. SEPARATION PAYMENT
As consideration for this Agreement and Release, Helix agrees to pay
Xxxxxx six (6) months of base pay, subject to lawful deductions,
payable in six (6) equal monthly installments. Helix further agrees to
pay Xxxxxx an additional sum of Three Thousand Dollars ($3,000.00),
subject to lawful deductions, payable in three (3) equal monthly
installments along with the last three (3) monthly installments
identified above in this paragraph 3. The first payment under this
paragraph 3 will be made after the seventh day after this Agreement
and Release is signed by Xxxxxx and delivered to Helix (the "Effective
Date") as set forth below in paragraph 9.
4. ACCELERATE VESTING OF STOCK OPTION GRANT
As additional consideration for entering into this Agreement and
Release, Helix agrees to amend the terms of the stock option grant
referenced in the Employment Agreement Helix agrees that 25,000 of the
option shares will automatically vest and become exercisable on the
Effective Date. These 25,000 shares of common stock shall remain
exercisable for a period of eighteen (18) months after the Resignation
Date. Nothing in this paragraph is intended to or does create any
other rights or obligations of any kind on the part of Helix with
regard to Xxxxxx'x stock option benefits, except those specifically
required by law or the Plan.
5. HEALTH BENEFIT PAYMENT
As additional consideration for entering into this Agreement and
Release, Helix agrees that it will pay Xxxxxx'x continued health
benefit coverage payment under Helix's health care plan, the Premera
Blue Cross Plan (the "Blue Cross Plan"), for a period of up to three
(3) months, to the extent allowed by the Blue Cross Plan. Xxxxxx
understands and agrees that in order for him to be eligible for this
continued coverage under the Blue Cross Plan, he is solely responsible
for completing the Blue Cross Plan's application for such coverage.
The continued coverage amounts described in this paragraph 5 will be
paid directly to Helix's insurance carrier, and Helix agrees to pay
the first monthly installment on December 1, 2003. No other payments
under this paragraph 5 will be paid until after the Effective Date of
this Agreement and Release. If any additional payments are due prior
to the Effective Date for Xxxxxx'x continued health benefit coverage
Xxxxxx is solely responsible for making such payment, subject to
reimbursement as set forth in this paragraph 5.
If, at any time during the three (3) month period described above,
Xxxxxx secures equivalent benefits through another position, Helix's
payment of Xxxxxx'x continued coverage (should any exist) will
automatically cease. Xxxxxx agrees that he will promptly notify Helix
in the event he obtains equivalent benefits through another position.
In addition, in the event Helix discontinues health care coverage for
its employees, any payments by Helix of Xxxxxx'x medical coverage will
automatically cease. Nothing in this paragraph is intended to or does
create any other rights or obligations of any kind on
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the part of Helix with regard to Xxxxxx'x health benefit or medical
coverage, except those specifically required by law.
6. ACKNOWLEDGEMENT OF PAYMENT
Xxxxxx specifically acknowledges and agrees that the consideration
identified in paragraphs 3, 4 and 5 above exceeds the amount Xxxxxx
would otherwise be entitled to receive upon termination of Xxxxxx'x
employment with Helix, and that the payments and benefits set forth
above are in exchange for entering into this Agreement and Release.
Xxxxxx further agrees that he will not at any time in the future seek
consideration from Helix other than as set forth in this Agreement and
Release. Xxxxxx specifically acknowledges and agrees that Helix has
not made any representations to Xxxxxx regarding the tax or legal
consequences of any consideration due to Xxxxxx or for his benefit
pursuant to this Agreement and Release.
7. NON-DISPARAGEMENT
Helix agrees that neither it, nor anyone acting on its behalf, will
make any negative, derogatory, or disparaging statements, whether oral
or written, regarding Xxxxxx. Xxxxxx agrees that neither he, nor
anyone acting on his behalf, will make any negative, derogatory, or
disparaging statements, whether oral or written, regarding Helix, or
any of its directors, officers, or employees.
8. RELEASE
Xxxxxx accepts the undertakings of Helix in this Agreement and Release
as full settlement of any and all claims, known or unknown, arising
out of or related to Xxxxxx'x association with Helix, including his
employment or its termination. This release by Xxxxxx includes, but is
not limited to, any claims for damages or attorney's fees, breach of
contract, lost equity-based compensation or lost salary or other
benefits, and specifically includes, but is not limited to claims
under the Age Discrimination in Employment Act ("ADEA"), Title VII of
the Civil Rights Act of 1964, the Americans with Disabilities Act, the
Older Workers' Benefit Protection Act, the Fair Labor Standards Act,
the Family and Medical Leave Act, the Employee Retirement Income
Security Act of 1974 (other than claims for vested benefits), the
Washington Law Against Discrimination in Employment, RCW Ch. 49.60.010
et. seq., Washington's wage and hour laws, all as amended, and the
civil rights, employment and labor laws of any city, locality, state
and the United States. These claims are examples, not a complete list,
of the released claims, as it is the Parties' intent that Xxxxxx
release any and all claims, of whatever kind or nature, in exchange
for the undertakings in this Agreement and Release by Helix. Xxxxxx
realizes that this constitutes a full and final settlement of any and
all claims, and except for obligations arising under this Agreement
and Release, this releases Helix (and its directors, officers,
shareholders and employees of Helix, and anyone else against whom
Xxxxxx could assert any of the released claims) from any further
liability to Xxxxxx (or to anyone else he has power to bind in this
Agreement and Release) in connection with such claims.
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9. RELEASE OF CLAIMS UNDER THE ADEA
Xxxxxx acknowledges that he is waiving and releasing any rights he may
have under the ADEA and that this waiver and release is knowing and
voluntary. The Parties agree that this waiver and release does not
apply to any rights or claims that may arise under the ADEA after the
execution of this Agreement and Release. Xxxxxx acknowledges and
agrees that he has been advised by this writing that (a) this waiver
and release does not apply to any rights or claims that may arise
after the Execution Date of this Agreement and Release; (b) he should
consult with an attorney prior to executing this Agreement and
Release; (c) he has twenty-one (21) days within which to consider this
Agreement and Release (although he may choose to voluntarily execute
this Agreement and Release earlier and waive such period of
consideration); (d) he has seven (7) days following the execution of
this Agreement and Release to revoke this Agreement and Release; (e)
this Agreement and Release shall not be effective until the revocation
period has expired (as set forth above, the Effective Date); and (f)
nothing in this Agreement prevents or precludes Xxxxxx from
challenging or seeking a determination in good faith of the validity
of this waiver and release under the ADEA, nor does it impose any
condition precedent, penalties or costs for doing so, unless
specifically authorized by federal law. To cancel this Agreement and
Release, Xxxxxx understands that he must give a written revocation
which must be received by Helix by 5:00 p.m. on the seventh day after
this Agreement and Release is signed by Xxxxxx, addressed to the
following individual at the following location:
Xxxxx Xxxxxx, President
Helix BioMedix, Inc.
00000 00xx Xxxxxx XX
Xxxxxxx, XX 00000
Xxxxxx understands that if Xxxxxx revokes this Agreement and Release
pursuant to this paragraph 9, the Agreement and Release will not
become effective or enforceable and Xxxxxx will not be entitled to any
of the benefits set forth in this Agreement and Release.
10. RETURN OF HELIX PROPERTY
Xxxxxx acknowledges and agrees that he has returned to Helix all
personal property and equipment furnished to or prepared by Xxxxxx in
the course of or incident to his employment by Helix, including,
without limitation, computers, cell phones, keys, all books, manuals,
memoranda, records, reports, notes, contracts, lists, blueprints, and
other documents, or materials, or copies thereof (including computer
files), and all other proprietary information belonging or relating to
the business of Helix or any affiliate. Xxxxxx also acknowledges and
agrees that he has not retained any written or other tangible
materials containing any proprietary information of Helix or any
affiliate.
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11. RESTRICTIVE COVENANTS
(a) Confidentiality of Information.
i. Definition. Xxxxxx and Helix agree that "Confidential
Information" shall mean any and all trade secrets, ideas,
suggestions, innovations, conceptions, discoveries, strategies,
improvements, technological developments, methods, processes,
specifications, formulae, compositions, techniques, systems,
computer software and programs, notes, memoranda, work sheets,
lists of actual or potential customers and suppliers, pricing
information and policies, works of authorship, products, data,
and information in any form, which concern or relate to any
aspect of the actual or contemplated business of Helix and which
may be stamped "confidential" or are otherwise treated as
confidential by Helix, except for such items as Xxxxxx can prove
through clear and convincing evidence were in the public domain,
being publicly and openly known, prior to the date of
commencement of Xxxxxx'x employment by Helix or, subsequent to
such date, became a part of the public domain, being publicly and
openly known, through lawful and proper means.
ii. Scope. Xxxxxx agrees that he shall not at any time take or use,
or otherwise disclose to anyone, any Confidential Information,
except as required by any court or governmental agency after
receipt by Xxxxxx of a lawful subpoena or court order. Xxxxxx
further agrees that in the event he is served with a subpoena of
court order, he will immediately notify Helix, in the manner set
forth in paragraph 9 above, of his receipt of the subpoena or
court order.
iii. Restrictions. Xxxxxx agrees that the restrictions set forth in
this paragraph are reasonable and necessary to protect Helix.
iv. Common Law Obligations. This paragraph is not intended to, and
does not, limit in any way Xxxxxx'x duties and obligations to
Helix under statutory and common law not to disclose or make
personal use of any Confidential Information of Helix.
(b) Assignment of Inventions.
i. Definition of Inventions. "Inventions" means discoveries, works
of authorship, mask works, developments, concepts, ideas and
information made or conceived or reduced to practice, methods,
designs, improvements, inventions, formulas, processes,
techniques, programs, know-how and data, whether or not
patentable or registerable under copyright or similar statutes,
except any of the foregoing that (a) is not related to the
business of Helix, or Helix's actual or demonstrable research or
development; (b) did not involve the use of any equipment,
supplies, facility or Confidential Information of Helix; (c) was
developed entirely on Xxxxxx'x own time; and (d) did not result
from any work performed by Xxxxxx
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for Helix. To the extent allowed by law, Inventions will also
include all "moral rights" "artist's rights" or the like.
ii. Assignment. Xxxxxx agrees to and hereby does assign to Helix,
without further consideration, all of his right, title and
interest in any and all Inventions he may have made during his
association with Helix. To the extent that Xxxxxx retains any
moral or artist's rights, he ratifies and consents to any action
that may be taken with respect to such rights by or authorized by
Helix and agrees not to assert any such rights with respect
thereto.
iii. Duty to Assist. Xxxxxx agrees to provide all assistance
reasonably requested by Helix in the preservation of Helix's
interests in the Inventions including obtaining patents in any
country throughout the world. Such services will be for
reasonable compensation and subject to Xxxxxx'x reasonable
availability. If Helix cannot, after reasonable effort, secure
Xxxxxx'x signature on any document or documents needed to apply
for or prosecute any patent, copyright, or other right or
protection relating to an Invention, whether because of his
physical or mental incapacity or for any other reason whatsoever,
Xxxxxx hereby irrevocably designates and appoints Helix and its
duly authorized officers and agents as his agent and
attorney-in-fact, to act for and in his behalf and in his name
and xxxxx for the purpose of executing and filing any such
application or applications and taking all other lawfully
permitted actions to further the prosecution and issuance of
patents, copyrights, or similar protections thereon, with the
same legal force and effect as if executed by him.
iv. Ownership of Copyrights. Xxxxxx agrees that any work prepared for
Helix, which is eligible for copyright protection under the laws
of the United States or any other country, is work made for hire
and ownership of all copyrights (including all renewals and
extensions) therein vests in Helix. If any such work is deemed
not to be a work made for hire for any reason, Xxxxxx hereby
grants, transfers and assigns all right, title and interest in
such work and all copyrights in such work and all renewals and
extensions thereof to the establishment, preservation and
enforcement of Helix's copyright in such work, such assistance to
be provided at Helix's expense. Xxxxxx agrees and does hereby
waive the enforcement of all moral rights with respect to the
work developed or produced as set forth in this Agreement and
Release, including without limitation any and all rights of
identification of authorship and any and all rights of approval,
restriction or limitation on use or subsequent modifications.
v. Litigation. Xxxxxx agrees to render assistance and cooperation to
Helix at its request regarding any matter, dispute or controversy
with which Helix may become involved and of which Xxxxxx has or
may have reason to have knowledge, information or expertise. Such
services will be for reasonable compensation and subject to his
reasonable availability.
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(c) Covenants Not to Compete.
i. Noncompetition and Nonsolicitation. Xxxxxx acknowledges and
agrees for a period of two (2) years after the Effective Date of
this Agreement and Release, Xxxxxx will not, directly or
indirectly, as principal, agent, employee, officer, shareholder,
consultant or otherwise, engage in any business that competes
directly with Helix, and will not solicit or aid in soliciting,
endeavor to obtain as a customer or client, accept sales,
marketing, financial, or consulting business from, or perform
sales, marketing, consulting or related business for any person,
firm, corporation, association or other entity: (i) that is or
was a Helix customer for whom Xxxxxx performed any services for
or with whom Xxxxxx maintained substantial business contacts with
at any time during the term of his employment with Helix; or (ii)
whose business Xxxxxx solicited, either alone or in conjunction
with others, on behalf of Helix or any of its subsidiaries,
during the term of his employment with Helix.
ii. Nonsolicitation of Employees. Xxxxxx agrees that Helix has
invested substantial time and effort in assembling its workforce.
Accordingly, Xxxxxx agrees that for a period of two (2) years
after the Resignation Date of this Agreement and Release, Xxxxxx
will not, directly or indirectly, employ, solicit or induce or
attempt to influence any employee of Helix or any affiliate, to
terminate his or her employment with Helix or any affiliate, or
to work for Xxxxxx or any other person or entity.
iii. Severability and Modification of Any Unenforceable Covenant. It
is the Parties' intent that each of the covenants set forth in
this Agreement and Release be read and interpreted with every
reasonable inference given to its enforceability. However, it is
also the Parties' intent that if any term, provision or condition
of such covenants is held by an arbitrator or court of competent
jurisdiction to be invalid, void or unenforceable, the remainder
of the provisions will remain in full force and effect and will
in no way be affected, impaired or invalidated. Finally, it is
also the Parties' intent that if an arbitrator or court should
determine any of the covenants set forth herein are unenforceable
because of over breadth, then the arbitrator or court will modify
said covenant so as to make it as broad as is reasonable and
enforceable under the prevailing circumstances.
12. AUTHORITY TO ENTER AGREEMENT
Xxxxxx represents and warrants that he is the true party in interest, that
he is fully authorized to execute this Agreement and Release, and that he
has not sold, assigned, transferred, conveyed, or otherwise disposed of any
rights surrendered by virtue of this Agreement and Release.
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13. BINDING EFFECT
This Agreement and Release shall be binding upon and inure to the benefit
of any heirs, legal representatives, successors and assigns of Xxxxxx and
Helix.
14. DISPUTE RESOLUTION
(a) With respect to disputes under this Agreement and Release that
are not resolved by the Parties pursuant upon written request by
one party to the other party, the Parties shall promptly
negotiate in good faith to appoint a mutually acceptable
disinterested, conflict-free individual not affiliated with any
party, with relevant contract experience necessary to resolve
such dispute (an "Arbitrator"). If the Parties are not able to
agree within three (3) days after the receipt by a party of the
written request in the immediately preceding sentence, the
American Arbitration Association ("AAA") shall be responsible for
selecting an Arbitrator within seven (7) days of being approached
by a party. The fees and costs of the Arbitrator and the AAA
shall be shared equally by the Parties.
(b) Within fifteen (15) days after the designation of the Arbitrator,
the Parties shall each simultaneously submit to the Arbitrator
and one another a written statement of their respective positions
on such disagreement. The Parties shall have two (2) days from
receipt of the filing party's submission to submit a written
response thereto. The Arbitrator shall have the right to meet
with the Parties, either alone or together, as necessary to make
a determination.
(c) No later than fifteen (15) days after the designation of the
Arbitrator, the Arbitrator shall make a determination by
selecting the resolution proposed by one of the Parties that as a
whole is the most fair and reasonable to the Parties in light of
the totality of the circumstances and shall provide the Parties
with a written statement setting forth the basis of the
determination in connection therewith. The decision of the
Arbitrator shall be final and conclusive, absent manifest error.
(d) Notwithstanding other provisions of this paragraph 14, Xxxxxx
acknowledges and agrees that any violation, breach, or threatened
breach by Xxxxxx of paragraph 11 of this Agreement and Release,
would cause Helix irreparable harm which would not be adequately
compensated by monetary damages and that a temporary restraining
order, permanent restraining order or injunction may be granted
by any court or courts having jurisdiction, restraining Xxxxxx
from violation, breach or threatened breach of paragraph 11 of
this Agreement and Release. This paragraph 14(d) shall not be
construed to limit Helix from any other relief or damages to
which it may be entitled as a result of Xxxxxx'x breach of
paragraph 11 of this Agreement and Release. Xxxxxx also agrees
that a violation of paragraph 11 of this Agreement and Release
would entitle Helix, in addition to all other remedies available
at law or equity, to recover from
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Xxxxxx all funds remaining to be paid out under paragraphs 3 and
4 of this Agreement and Release, and will be held in trust by
Helix.
15. WASHINGTON LAW TO APPLY
This Agreement and Release shall in all respects be governed by the laws of
the State of Washington. Venue for any action to enforce any provision of
this Agreement shall be exclusively in King County with an arbitrator from
King County, Washington. The Parties, by their signatures below, agree to
submit to said arbitrator's jurisdiction and to waive all defenses related
to jurisdiction and venue. Except as prohibited by law, the prevailing
party in any arbitration or litigation brought to enforce this Agreement
and Release shall be entitled to recover its costs including reasonable
attorneys' fees.
16. GENERAL
This Agreement and Release: (i) represents the entire understanding of the
Parties with respect to the subject matter covered; (ii) supersedes all
prior and contemporaneous oral understandings with respect to such subject
matter; (iii) may only be amended in a writing signed by the Parties; and
(iv) shall be executed in two or more counterparts so that each party may
retain a fully executed original.
17. KNOWING AND VOLUNTARY WAIVER
Xxxxxx acknowledges that he has been advised to consult with an attorney,
and has had the opportunity to do so before signing this Agreement and
Release, which Xxxxxx has been given a reasonable period of time to
consider and which Xxxxxx may revoke within seven (7) days after signing.
Executed as of the Execution Date written above.
HELIX, INC. XXXXXX:
By /s/ R. Xxxxxxx Xxxxxx
Its Pres. and CEO /s/ Xxxxx Xxxxxx (11-26-03)
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Xxxxx Xxxxxx
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