Exhibit
10.1
GENERAL RELEASE AND SEPARATION
AGREEMENT
This General Release and Separation
Agreement (hereafter “ Agreement ”) is entered
into as of April 3, 2009, between Joel Jung (the “
Executive ”), and Celera Corporation (the “
Company ”), effective eight days after the
Executive’s signature (the “ Effective Date
”), unless he revokes his acceptance as provided in
Section 4(c), below.
WHEREAS, the Executive was the Chief
Financial Officer of the Company, and the Executive tendered his
resignation, and the Company accepted such resignation effective as
of April 3, 2009 (the “ Resignation Date
”); and
WHEREAS, the Company and the
Executive now wish to document the termination of their employment
relationship and fully and finally to resolve all matters between
them;
THEREFORE, in exchange for the good
and valuable consideration set forth herein, the adequacy of which
is specifically acknowledged, the Executive and the Company hereby
agree as follows:
1. Resignation of Employment
. As of the Resignation Date, the Executive hereby confirms his
resignation of all positions that the Executive held as an officer
of the Company and all subsidiaries of the Company, and all
positions that the Executive held on the boards of directors of any
of the Company’s subsidiaries, and the Company confirms its
acceptance of such resignations, effective as of the Resignation
Date.
2. Payment of Accrued Wages and
Expenses . The Executive acknowledges payment of an amount
equal to all accrued wages through the Resignation Date, including
accrued vacation, less applicable withholding, and further
acknowledges that he has been reimbursed for all expenses incurred
by him on behalf of the Company. The Executive acknowledges and
agrees that he shall not be eligible for a bonus for the fiscal
year ending December 26, 2009.
3. Separation Benefits . The
Company shall provide the Executive with the following separation
benefits set forth in this Section 3, provided that the
Executive executes (and does not revoke) this Agreement within
thirty (30) days following the Resignation Date.
(a) Severance Payment . The
Company shall pay the Executive a lump sum amount equal to nine
(9) months of his current base salary (as in effect
immediately prior to the Resignation Date) as soon as practicable
following the Effective Date (and no later than its first regularly
scheduled payroll date following the Effective Date).
(b) Continued Benefits . In
addition, in the event that the Executive elects to continue health
and dental benefits pursuant to the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended (“ COBRA
”), the Company will make the COBRA premium payments (for
Executive and his eligible dependents) for a period of nine months
following the Effective Date (or until the Executive becomes
eligible to participate in another employer health plan, if
earlier). The Executive shall promptly inform the Company of his
acceptance of other employment.
1
(c) Equity Awards; Additional
Payment . The Executive acknowledges that no acceleration of
vesting of any options to purchase shares of the Company’s
common stock or any other compensatory awards with respect to the
Company’s securities shall occur as a result of his
resignation, and such awards shall continue to be subject to the
terms and conditions of the applicable plan and agreement
evidencing such award. In recognition of the estimated value of the
Executive’s equity-based awards which would have vested
during the nine-month period following the Resignation Date, the
Company agrees to pay the Executive a lump sum amount of One
Hundred Thousand Dollars ($100,000) as soon as practicable
following the Effective Date (and no later than its first regularly
scheduled payroll date following the Effective Date).
(d) Outplacement Services .
The Executive will be eligible to receive outplacement assistance,
at the Company’s expense, for a period of twelve
(12) months following the Resignation Date; the type of
assistance shall be determined by the Company.
4. General Release of Claims by
the Executive .
(a) The Executive, on behalf of
himself and his executors, heirs, administrators, representatives
and assigns, hereby agrees to release and forever discharge the
Company and all predecessors, successors and their respective
parent corporations, affiliates, related, and/or subsidiary
entities, and all of their past and present investors, directors,
shareholders, officers, general or limited partners, employees,
attorneys, agents and representatives, and employee benefit plans
in which the Executive is or has been a participant by virtue of
his employment with the Company, from any and all claims, debts,
demands, accounts, judgments, rights, causes of action, equitable
relief, damages, costs, charges, complaints, obligations, promises,
agreements, controversies, suits, expenses, compensation,
responsibility and liability of every kind and character whatsoever
(including attorneys’ fees and costs), whether in law or
equity, known or unknown, asserted or unasserted, suspected or
unsuspected (collectively, “ Claims ”), which
the Executive has or may have had against such entities based on
any events or circumstances arising or occurring on or prior to the
date hereof or on or prior to the Resignation Date, arising
directly or indirectly out of, relating to, or in any other way
involving in any manner whatsoever the Executive’s employment
by the Company or the separation thereof, and any and all claims
arising under federal, state, or local laws relating to employment,
including without limitation claims of wrongful discharge, breach
of express or implied contract, fraud, misrepresentation,
defamation, or liability in tort, claims of any kind that may be
brought in any court or administrative agency, any claims arising
under Title VII of the Civil Rights Act of 1964, the Age
Discrimination in Employment Act (the “ ADEA ”),
the Americans with Disabilities Act, the Older Workers Benefit
Protection Act, the Fair Labor Standards Act, the Employee
Retirement Income Security Act, the Family and Medical Leave Act,
and similar state or local statutes, ordinances, and
regulations.
2
Notwithstanding the generality of
the foregoing, the Executive does not release the following claims
and rights:
(i) Claims for unemployment
compensation or any state disability insurance benefits pursuant to
the terms of applicable state law;
(ii) Claims to continued
participation in certain of the Company’s group benefit plans
pursuant to the terms and conditions of COBRA;
(iii) Claims to any benefit
entitlements vested as the date of separation of employment,
pursuant to written terms of any Company employee benefit
plan;
(iv) The Executive’s right to
bring to the attention of the Equal Employment Opportunity
Commission claims of discrimination; provided, however, that the
Executive does release his right to secure any damages for alleged
discriminatory treatment; and
(v) The Executive’s right, if
any, to indemnification from the Company under California Labor
Code Section 2802.
(b) THE EXECUTIVE ACKNOWLEDGES THAT
HE HAS BEEN ADVISED OF AND IS FAMILIAR WITH THE PROVISIONS OF
CALIFORNIA CIVIL CODE SECTION 1542, WHICH PROVIDES AS
FOLLOWS:
“A GENERAL RELEASE DOES NOT
EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR
HER SETTLEMENT WITH THE DEBTOR.”
BEING AWARE OF SAID CODE SECTION,
THE EXECUTIVE HEREBY EXPRESSLY WAIVES ANY RIGHTS HE MAY HAVE
THEREUNDER, AS WELL AS UNDER ANY OTHER STATUTES OR COMMON LAW
PRINCIPLES OF SIMILAR EFFECT.
(c) In accordance with the Older
Workers Benefit Protection Act of 1990, the Executive acknowledges
that he is aware of the following:
(i) This section, and this
Agreement, are written in a manner calculated to be understood by
the Executive.
(ii) The waiver and release of
claims under the ADEA contained in this Agreement does not cover
rights or claims that may arise after the date on which the
Executive signs this Agreement.
(iii) This Agreement provides for
consideration in addition
