EXHIBIT 10.1
CONFIDENTIAL SEPARATION AGREEMENT
AND GENERAL RELEASE OF ALL CLAIMS
This Confidential Separation Agreement and General Release of All Claims
("Agreement") is made by and between Genetronics, Inc. ("Genetronics") and
Martin Nash ("Nash") with respect to the following facts:
A. Nash is currently employed by Genetronics as the Chief Executive Officer.
B. Nash's employment will cease effective May 14, 2001 ("Separation Date").
C. Nash is the recipient of certain stock option grants of Genetronics'
stock as evidenced by the Grant Detail Report attached hereto as Exhibit
A. All such options that were fully vested as of May 14, 2001 shall
remain exercisable until January 15, 2002. Any vested but unexercised
options shall expire at 5 p.m on January 15, 2002
D. The parties desire to settle all claims and issues that have, or could
have been raised, in relation to Nash's employment with Genetronics and
arising out of or in any way related to the acts, transactions or
occurrences between Nash and Genetronics to date, including, but not
limited to, Nash's employment with Genetronics or the separation of that
employment, on the terms set forth below.
THEREFORE, in consideration of the promises and mutual agreements
hereinafter set forth, it is agreed by and between the undersigned as follows:
1
SEVERANCE PACKAGE. GENETRONICS AGREES TO PROVIDE NASH WITH THE FOLLOWING
PAYMENTS AND BENEFITS ("SEVERANCE PACKAGE") TO WHICH HE IS NOT OTHERWISE
ENTITLED. NASH ACKNOWLEDGES AND AGREES THAT THIS SEVERANCE PACKAGE CONSTITUTES
ADEQUATE LEGAL CONSIDERATION FOR THE PROMISES AND REPRESENTATIONS MADE BY HIM IN
THIS AGREEMENT.
Severance Payment. Genetronics agrees to pay Nash the equivalent of twelve
months' base salary, less all appropriate federal and state income and
employment taxes ("Severance Payment"). The Severance Payment will be made in
accordance with Genetronics' regular payroll schedule beginning on the first
payday following the Effective Date as described in paragraph 0, below.
Continuation of Group Health Benefits. Nash will continue to receive group
health insurance benefits on the same terms as during Nash's employment for
twelve (12) months following the Separation Date, provided Genetronics'
insurance carrier allows for such benefits continuation. In the event
Genetronics' insurance carrier does not allow such coverage continuation,
Genetronics agrees to pay the premiums required to continue Nash's group health
care coverage for the twelve (12) month period, under the applicable provisions
of the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"),
provided that Nash elects to continue and remains eligible for these benefits
under COBRA, and does not obtain health coverage through another employer during
this period.
Stock Options. Nash shall have until January 15, 2002 to exercise any vested
stock options.
Automobile Lease. As a benefit of his employment with Genetronics, Nash was
provided with the use of a leased vehicle pursuant to agreement dated November
30, 1998. Nash agrees that, as a condition of this Severance Package Genetronics
shall deduct from the Severance Payment above the monthly lease payments for
said vehicle. At the termination of the Severance Payment, Nash shall be
responsible for any continuing payments under the lease agreement.
1.5 Resignation. Genetronics agrees to characterize Nash's
separation as a voluntary resignation.
TRANSITION ASSISTANCE. FROM THE DATE OF THIS AGREEMENT UNTIL NOVEMBER 15, 2001 ,
NASH AGREES TO MAKE HIMSELF AVAILABLE, AS NEEDED, WITHOUT ANY ADDITIONAL
COMPENSATION, TO ANSWER BUSINESS-RELATED QUESTIONS BY TELEPHONE OR IN PERSON AT
MUTUALLY CONVENIENT TIMES AS DEEMED NECESSARY BY GENETRONICS. IN ORDER TO EFFECT
THIS ASSISTANCE, NASH AGREES TO EXECUTE A CONSULTING AGREEMENT, THE FORM OF
WHICH IS ATTACHED HERETO AS EXHIBIT B.
GENERAL RELEASE.
2
The parties hereto unconditionally, irrevocably and absolutely release and
discharge each other (collectively, "Released Parties"), from all claims related
in any way to the transactions or occurrences between them to date, to the
fullest extent permitted by law, including, but not limited to, Nash's
employment with Genetronics, the termination of Nash's employment, and all other
losses, liabilities, claims, charges, demands and causes of action, known or
unknown, suspected or unsuspected, arising directly or indirectly out of or in
any way connected with Nash's employment with Genetronics. This release is
intended to have the broadest possible application and includes, but is not
limited to, any tort, contract, common law, constitutional or other statutory
claims, including, but not limited to alleged violations of the California Labor
Code or the federal Fair Labor Standards Act, Title VII of the Civil Rights Act
of 1964 and the California Fair Employment and Housing Act, the Americans with
Disabilities Act, the Age Discrimination in Employment Act of 1967, as amended,
and all claims for attorneys' fees, costs and expenses.
The parties acknowledge that they may discover facts or law different from, or
in addition to, the facts or law that they know or believe to be true with
respect to the claims released in this Agreement and agree, nonetheless, that
this Agreement and the release contained in it shall be and remain effective in
all respects notwithstanding such different or additional facts or the discovery
of them.
The parties declare and represent that they intend this Agreement to be complete
and not subject to any claim of mistake, and that the release herein expresses a
full and complete release and, regardless of the adequacy or inadequacy of the
consideration, the parties intend the release herein to be final and complete.
The Parties execute this release with the full knowledge that this release
covers all possible claims against the Released Parties, to the fullest extent
permitted by law.
The Parties expressly waive their right to recovery of any type, including
damages or reinstatement, in any administrative or court action, whether state
or federal, and whether brought by a party or on a party's behalf, related in
any way to the matters released herein.
CALIFORNIA CIVIL CODE SECTION 1542 WAIVER. THE PARTIES EXPRESSLY ACKNOWLEDGE AND
AGREE THAT ALL RIGHTS UNDER SECTION 1542 OF THE CALIFORNIA CIVIL CODE ARE
EXPRESSLY WAIVED. THAT SECTION PROVIDES:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR.
3
REPRESENTATION CONCERNING FILING OF LEGAL ACTIONS. THE PARTIES REPRESENT THAT,
AS OF THE DATE OF THIS AGREEMENT, THEY HAVE NOT FILED ANY LAWSUITS, CHARGES,
COMPLAINTS, PETITIONS, CLAIMS OR OTHER ACCUSATORY PLEADINGS AGAINST EACH OTHER
IN ANY COURT OR WITH ANY GOVERNMENTAL AGENCY. THE PARTIES FURTHER AGREE THAT, TO
THE FULLEST EXTENT PERMITTED BY LAW, THEY WILL NOT PROSECUTE, NOR ALLOW TO BE
PROSECUTED ON THEIR BEHALF, IN ANY ADMINISTRATIVE AGENCY, WHETHER STATE OR
FEDERAL, OR IN ANY COURT, WHETHER STATE OR FEDERAL, ANY CLAIM OR DEMAND OF ANY
TYPE RELATED TO THE MATTERS RELEASED ABOVE, IT BEING THE INTENTION OF THE
PARTIES THAT WITH THE EXECUTION OF THIS RELEASE, THE RELEASED PARTIES WILL BE
ABSOLUTELY, UNCONDITIONALLY AND FOREVER DISCHARGED OF AND FROM ALL OBLIGATIONS
TO OR ON BEHALF OF EACH OTHER RELATED IN ANY WAY TO THE MATTERS DISCHARGED
HEREIN.
NONDISPARAGEMENT. THE PARTIES AGREE THAT THEY WILL NOT MAKE ANY VOLUNTARY
STATEMENTS, WRITTEN OR ORAL, OR CAUSE OR ENCOURAGE OTHERS TO MAKE ANY SUCH
STATEMENTS THAT DEFAME, DISPARAGE OR IN ANY WAY CRITICIZE THE PERSONAL AND/OR
BUSINESS REPUTATIONS, PRACTICES OR CONDUCT OF EACH OTHER.
CONFIDENTIALITY AND RETURN OF GENETRONICS PROPERTY.
Confidential Separation Information. The parties agree that the terms and
conditions of this Agreement, as well as the discussions that led to the terms
and conditions of this Agreement (collectively referred to as the "Confidential
Separation Information") are intended to remain confidential between Nash and
Genetronics. The parties further agree that they will not disclose the
Confidential Separation Information to any other persons, except that they may
disclose such information to immediate family members an their attorney(s) and
accountant(s), if any, to the extent needed for legal advice or income tax
reporting purposes and Nash may disclose the terms of this Agreement with his
wife. When releasing this information to any such person, the parties shall
advise the person receiving the information of its confidential nature. Neither
party, nor anyone to whom the Confidential Separation Information has been
disclosed will respond to, or in any way participate in or contribute to, any
public discussion, notice or other publicity concerning the Confidential
Separation Information. Without limiting the generality of the foregoing, the
parties specifically agree that neither they, their attorneys nor their
accountants, if any, shall disclose the Confidential Separation Information to
any current, former or prospective employee of Genetronics, except for those who
have a need to know the Information. Nothing in this section will preclude the
parties from disclosing information required in response to a subpoena duly
issued by a court of law or a government agency having jurisdiction or power to
compel such disclosure, or from giving full, truthful and cooperative answers in
response to a duly issued subpoena.
4
Confidential or Proprietary Information. Nash also agrees that he will not use,
remove from Genetronics' premises, make unauthorized copies of or disclose any
confidential or proprietary information of Genetronics or any affiliated or
related entities, including but not limited to, their trade secrets, copyrighted
information, customer lists, any information encompassed in any research and
development, reports, work in progress, drawings, software, computer files or
models, designs, plans, proposals, marketing and sales programs, financial
projections, and all concepts or ideas, materials or information related to the
business or sales of Genetronics and any affiliated or related entities that has
not previously been released to the public by an authorized representative of
those companies.
Continuing Obligations. If Nash has signed a Confidentiality or Proprietary
Rights Agreement (or any other agreement protecting the confidentiality of
Genetronics information), Nash understands that certain terms and conditions of
that agreement survive the termination of Nash's employment and as such Nash
agrees to abide by such surviving provisions of the agreement.
Return of Company Property. Nash understands and agrees that as a condition of
receiving the Severance Package in paragraph 0, all Company property must be
returned to Genetronics on or before the Separation Date. By signing this
Agreement, Nash represents and warrants that he will have returned to
Genetronics on or before the Separation Date, all Genetronics property,
including all confidential and proprietary information, as described in
paragraph 0 above and all materials and documents containing trade secrets and
copyrighted materials, including all copies and excerpts of the same.
NON-SOLICITATION. NASH UNDERSTANDS AND AGREES THAT GENETRONICS' EMPLOYEES AND
CUSTOMERS AND ANY INFORMATION REGARDING GENETRONICS EMPLOYEES AND/OR CUSTOMERS
IS CONFIDENTIAL AND CONSTITUTES TRADE SECRETS. AS SUCH, FOR A PERIOD OF ONE YEAR
FOLLOWING THE SEPARATION DATE, NASH AGREES NOT TO, DIRECTLY OR INDIRECTLY,
SEPARATELY OR IN ASSOCIATION WITH OTHERS:
Interfere with, impair, disrupt or damage Genetronics' relationship with any of
its customers or prospective customers by soliciting, or encouraging or causing
others to solicit or encourage, any of them for the purpose of diverting or
taking away the business such customers have with Genetronics; or
Interfere with, impair, disrupt or damage Genetronics' business by soliciting,
encouraging or causing others to solicit or encourage any of Genetronics'
employees to discontinue their employment with Genetronics.
ENFORCEMENT. IF NASH BREACHES ANY OF THE TERMS IN PARAGRAPHS 0, 0, OR 0 ABOVE OR
THEIR SUBPARTS, GENETRONICS WILL IMMEDIATELY CEASE MAKING THE SEPARATION
PAYMENTS DESCRIBED IN SUBPARAGRAPH 0 ABOVE, TO THE EXTENT THOSE PAYMENTS HAVE
NOT YET BEEN MADE. THIS SHALL IN NO WAY LIMIT GENETRONICS' RIGHT TO PURSUE ALL
LEGAL AND EQUITABLE REMEDIES AVAILABLE TO IT AS A RESULT OF NASH'S BREACH OF
THIS AGREEMENT.
5
ARBITRATION OF DISPUTES. THE PARTIES AGREE TO ARBITRATE ANY AND ALL DISPUTES
ARISING OUT OF OR RELATING TO THE ENFORCEMENT OF THIS AGREEMENT, OR FOR THE
BREACH HEREOF, OR THE INTERPRETATION HEREOF. THE ARBITRATION SHALL BE BEFORE A
SINGLE, NEUTRAL ARBITRATOR SELECTED BY THE PARTIES. IF THE PARTIES ARE UNABLE TO
AGREE ON A SINGLE NEUTRAL ARBITRATOR, THE ARBITRATOR SHALL BE SELECTED IN
ACCORDANCE WITH THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION FOR EMPLOYMENT
DISPUTES. THE ARBITRATOR SHALL HAVE THE POWER TO ENTER ANY AWARD THAT COULD BE
ENTERED BY A JUDGE OF A TRIAL COURT OF THE STATE OF CALIFORNIA, AND ONLY SUCH
POWER, AND SHALL FOLLOW THE LAW. IN THE EVENT THE ARBITRATOR DOES NOT FOLLOW THE
LAW, THE ARBITRATOR WILL HAVE EXCEEDED THE SCOPE OF HIS OR HER AUTHORITY AND THE
PARTIES MAY, AT THEIR OPTION, FILE A MOTION TO VACATE THE AWARD IN COURT. THE
PARTIES AGREE TO ABIDE BY AND PERFORM ANY AWARD RENDERED BY THE ARBITRATOR. THE
ARBITRATOR SHALL ISSUE THE AWARD IN WRITING AND THEREIN STATE THE ESSENTIAL
FINDINGS AND CONCLUSIONS ON WHICH THE AWARD IS BASED. JUDGMENT ON THE AWARD MAY
BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. IN NO EVENT SHALL THE
DEMAND FOR ARBITRATION BE MADE AFTER THE DATE WHEN INSTITUTION OF LEGAL OR
EQUITABLE PROCEEDINGS BASED ON SUCH CLAIM, DISPUTE OR OTHER MATTER IN QUESTION
WOULD BE BARRED BY THE APPLICABLE STATUTE OF LIMITATIONS. THIS AGREEMENT TO
ARBITRATE SHALL BE SPECIFICALLY ENFORCEABLE UNDER THE PREVAILING ARBITRATION
LAW, AND SHALL BE IN ACCORDANCE WITH THE PROCEDURES ESTABLISHED FOR ARBITRATION
IN THE CALIFORNIA CODE OF CIVIL PROCEDURE. THE PARTIES UNDERSTAND THAT BY
AGREEING TO ARBITRATE THEIR DISPUTES, THEY ARE GIVING UP THEIR RIGHT TO HAVE
THEIR DISPUTES HEARD IN A COURT OF LAW AND, IF APPLICABLE, BY A JURY.
NO ADMISSIONS. BY ENTERING INTO THIS AGREEMENT, THE RELEASED PARTIES MAKE NO
ADMISSION THAT THEY HAVE ENGAGED, OR ARE NOW ENGAGING, IN ANY UNLAWFUL CONDUCT.
THE PARTIES UNDERSTAND AND ACKNOWLEDGE THAT THIS AGREEMENT IS NOT AN ADMISSION
OF LIABILITY AND SHALL NOT BE USED OR CONSTRUED AS SUCH IN ANY LEGAL OR
ADMINISTRATIVE PROCEEDING.
OLDER WORKERS' BENEFIT PROTECTION ACT. THIS AGREEMENT IS INTENDED TO SATISFY THE
REQUIREMENTS OF THE OLDER WORKERS' BENEFIT PROTECTION ACT, 29 U.S.C. SEC.
626(F). THE FOLLOWING GENERAL PROVISIONS, ALONG WITH THE OTHER PROVISIONS OF
THIS AGREEMENT, ARE AGREED TO FOR THIS PURPOSE:
Nash acknowledges and agrees that he has read and understands the terms of this
Agreement.
Nash acknowledges that this Agreement advises him in writing that he may consult
with an attorney before executing this Agreement, and that he has obtained and
considered such legal counsel as he deems necessary, such that he is entering
into this Agreement freely, knowingly, and voluntarily.
6
Nash acknowledges that he has been given at least twenty-one (21) days in which
to consider whether or not to enter into this Agreement. Nash understands that,
at his option, Nash may elect not to use the full 21-day period.
This Agreement shall not become effective or enforceable until the eighth day
after Nash signs this Agreement. In other words, Nash may revoke his acceptance
of this Agreement within seven (7) days after the date he signs it. Nash's
revocation must be in writing and received by the Genetronics representative
designated to sign this Agreement by 5:00 p.m. P.D.T. on the seventh day in
order to be effective. If Nash does not revoke acceptance within the seven (7)
day period, Nash's acceptance of this Agreement shall become binding and
enforceable on the eighth day ("Effective Date"). The payments and benefits
described in the Severance Package above shall become due and payable in
accordance with the terms and conditions described in paragraph 0 above and its
subparts, provided this Agreement has not been revoked.
This Agreement does not waive or release any rights or claims that Employee may
have under the Age Discrimination in Employment Act that arise after the
execution of this Agreement.
SEVERABILITY. IN THE EVENT AN ARBITRATOR OR A COURT OF COMPETENT JURISDICTION
SHALL FIND ANY PROVISION OF THIS AGREEMENT UNENFORCEABLE, THE PROVISION SHALL BE
DEEMED MODIFIED TO THE EXTENT NECESSARY TO ALLOW ENFORCEABILITY OF THE PROVISION
AS SO LIMITED.
APPLICABLE LAW. THE VALIDITY, INTERPRETATION AND PERFORMANCE OF THIS AGREEMENT
SHALL BE CONSTRUED AND INTERPRETED ACCORDING TO THE LAWS OF THE UNITED STATES OF
AMERICA AND THE STATE OF CALIFORNIA.
BINDING ON SUCCESSORS. THE PARTIES AGREE THAT THIS AGREEMENT SHALL BE BINDING
ON, AND INURE TO THE BENEFIT OF, HIS OR ITS SUCCESSORS, HEIRS AND/OR ASSIGNS.
FULL DEFENSE. THIS AGREEMENT MAY BE PLED AS A FULL AND COMPLETE DEFENSE TO, AND
MAY BE USED AS A BASIS FOR AN INJUNCTION AGAINST, ANY ACTION, SUIT OR OTHER
PROCEEDING THAT MAY BE PROSECUTED, INSTITUTED OR ATTEMPTED BY NASH IN BREACH
HEREOF. NASH AGREES THAT IN THE EVENT AN ACTION OR PROCEEDING IS INSTITUTED BY
THE RELEASED PARTIES IN ORDER TO ENFORCE THE TERMS OR PROVISIONS OF THIS
AGREEMENT, THE RELEASED PARTIES SHALL BE ENTITLED TO AN AWARD OF REASONABLE
COSTS AND ATTORNEYS' FEES INCURRED IN CONNECTION WITH ENFORCING THIS AGREEMENT.
GOOD FAITH. THE PARTIES AGREE TO DO ALL THINGS NECESSARY AND TO EXECUTE ALL
FURTHER DOCUMENTS NECESSARY AND APPROPRIATE TO CARRY OUT AND EFFECTUATE THE
TERMS AND PURPOSES OF THIS AGREEMENT.
7
ENTIRE AGREEMENT; MODIFICATION. THIS AGREEMENT, INCLUDING THE STOCK OPTION PLAN
AND ASSOCIATED GRANT DOCUMENTS HEREIN INCORPORATED BY REFERENCE AND ANY
CONFIDENTIALITY OR PROPRIETARY RIGHTS AGREEMENT SIGNED BY NASH, IS INTENDED TO
BE THE ENTIRE AGREEMENT BETWEEN THE PARTIES AND SUPERSEDES AND CANCELS ANY AND
ALL OTHER AND PRIOR AGREEMENTS, WRITTEN OR ORAL, BETWEEN THE PARTIES REGARDING
THIS SUBJECT MATTER. IT IS AGREED THAT THERE ARE NO COLLATERAL AGREEMENTS OR
REPRESENTATIONS, WRITTEN OR ORAL, REGARDING THE TERMS AND CONDITIONS OF NASH'S
SEPARATION OF EMPLOYMENT WITH GENETRONICS AND SETTLEMENT OF ALL CLAIMS BETWEEN
THE PARTIES OTHER THAN THOSE SET FORTH IN THIS AGREEMENT. THIS AGREEMENT MAY BE
AMENDED ONLY BY A WRITTEN INSTRUMENT EXECUTED BY ALL PARTIES HERETO.
19. Counterparts and Authority to Execute: This Agreement may be
executed in counterparts and facsimile signatures are, for purposes of this
Agreement, deemed to have the full force and effect of original signatures. The
individuals executing this Agreement have the full requisite authority to bind
the respective parties they represent.
THE PARTIES TO THIS AGREEMENT HAVE READ THE FOREGOING AGREEMENT AND
FULLY UNDERSTAND EACH AND EVERY PROVISION CONTAINED HEREIN. WHEREFORE, THE
PARTIES HAVE EXECUTED THIS AGREEMENT ON THE DATES SHOWN BELOW.
Dated: By: /s/ Martin Nash
---------------------------- --------------------------------------
Martin Nash
Dated: July 17, 2001 By: /s/ Grant W. Denison
---------------------------- --------------------------------------
Genetronics Inc.
8