Exhibit 10.1
SEPARATION AGREEMENT AND
RELEASE
This Separation Agreement and
Release (“ Agreement ”) is made by and
between Edward Wilson (“ Employee ”) and
Akesis Pharmaceuticals, Inc. (“ Company
”) (collectively referred to as the “
Parties ”):
RECITALS
WHEREAS, Employee provided services
to the Company pursuant to an Employment Offer Letter dated
December 13, 2004 (the “ Offer Letter
”);
WHEREAS, the Company and Employee
have entered into a Stand-Alone Stock Option Agreement (the “
Stock Option Agreement ”) dated
January 24, 2005 granting Employee an option to purchase up to
862,499 shares of the Company’s common stock;
WHEREAS, Employee executed an
Employee Confidentiality and Inventions Assignment Agreement (the
“ Propriety Information Agreement
”);
WHEREAS, Employee intends to
terminate his employment with the Company; and
WHEREAS, the Parties wish to resolve
any and all disputes, claims, complaints, grievances, charges,
actions, petitions and demands that the Employee may have against
the Company and any of the Releasees as defined below, including,
but not limited to, any and all claims arising out of, or in any
way related to Employee’s relationship with, or separation as
an employee and director from, the Company.
NOW THEREFORE, in consideration of
the mutual promises made herein, the Company and Employee hereby
agree as follows:
1. Consideration .
a. Cash .
i. Salary. The Company agrees to pay
Employee all accrued wages. This payment will be made to Employee
within ten (10) business days of the Effective Date of this
Agreement.
ii. Reimbursements. In addition, the
Company agrees to reimburse Employee within ten (10) business
days of receipt by the Company, all expenses properly incurred by
Employee on behalf of the Company through the Effective Date of
this Agreement.
b. Stock Option Agreement
Termination . The Parties agree that as of the Effective Date
of this Agreement, the Stand-Alone Stock Option Agreement dated as
of January 24, 2005 is hereby cancelled and that all rights to
purchase any shares (including any and all vested shares) are
hereby terminated, notwithstanding the terms and conditions of the
Stock Option Agreement to the contrary.
c. Warrant . The Company
shall issue a warrant to Employee in substantially the form
attached hereto as Exhibit A as of the Effective Date of
this Agreement to purchase 250,000 shares at an exercise price per
share equal to the ten-day trailing average closing price of the
Company’s common stock as reported on the Over-The-Counter
Bulletin Board on the date the Board approves such issuance. The
aggregate purchase price of the Warrant shall be $2,500.00 payable
by Employee to the Company on the date hereof.
d. Offer Letter Termination .
Other than as set forth herein and the terms that survive
termination, the Parties hereby mutually terminate the Offer
Letter.
e. Return of Company Property
. Employee shall return all of the Company’s property and
confidential and proprietary information in his possession to the
Company on the date Employee ceases to be a service provider,
except that Employee may keep any property whose purchase Employee
and the Company have previously agreed upon. The Company agrees to
sell, and Employee agrees to buy, furniture and equipment from the
office of the Company formerly in Phoenix, Arizona currently under
the control of Employee, for the purchase price of $100.00. The
purchase price of any such property may be deducted from any cash
consideration owed to Employee pursuant to this
Section 1.
f. Proprietary Information
Agreement . All of the terms of the Proprietary Information
Agreement that survive termination shall remain in full force and
effect.
2. Release of Claims .
Employee agrees that the foregoing consideration represents
settlement in full of all outstanding obligations owed to Employee
by the Company and its current and former officers, directors,
employees, agents, investors, attorneys, shareholders,
administrators, affiliates, divisions, subsidiaries, predecessor
and successor corporations and assigns (the “
Releasees ”). Employee, on his own behalf, and
on behalf of his respective heirs, family members, executors,
agents, and assigns, hereby and forever releases the Releasees
from, and agrees not to sue concerning, or in any manner to
institute, prosecute or pursue, any claim, complaint, charge, duty,
obligation or cause of action relating to any matters of any kind,
whether presently known or unknown, suspected or unsuspected, that
Employee may possess against any of the Releasees arising from any
omissions, acts or facts that have occurred up until and including
the Effective Date of this Agreement including, without
limitation,
a. any and all claims relating to or
arising from Employee’s relationship with the Company and the
termination of that relationship;
b. any and all claims relating to,
or arising from, Employee’s right to purchase, or actual
purchase of shares of stock of the Company, including, without
limitation, any claims for fraud, misrepresentation, breach of
fiduciary duty, breach of duty under applicable state corporate
law, and securities fraud under any state or federal
law;
c. any and all claims for wrongful
discharge of employment; termination in violation of public policy;
discrimination; harassment; retaliation; breach of contract, both
express and implied; breach of a covenant of good faith and fair
dealing, both express and implied; promissory estoppel; negligent
or intentional infliction of emotional distress; fraud; negligent
or intentional misrepresentation; negligent or intentional
interference with contract or prospective
economic advantage; unfair business
practices; defamation; libel; slander; negligence; personal injury;
assault; battery; invasion of privacy; false imprisonment;
conversion; workers’ compensation and disability
benefits;
d. any and all claims for violation
of any federal, state or municipal statute, including, but not
limited to, Title VII of the Civil Rights Act of 1964; the
Civil Rights Act of 1991; the Americans with Disabilities Act of
1990; the Fair Labor Standards Act; the Fair Credit Reporting Act;
the Age Discrimination in Employment Act of 1967; the Older Workers
Benefit Protection Act; the Employee Retirement Income Security Act
of 1974; the Worker Adjustment and Retraining Notification Act; the
Family and Medical Leave Act; the Sarbanes-Oxley Act of 2002; the
California Family Rights Act; the California Labor Code, except as
prohibited by law; the California Workers’ Compensation Act;
and the California Fair Employment and Housing Act;
e. any and all claims for violation
of the federal, or any state, constitution;
f. any and all claims arising out of
any other laws and regulations relating to employment or employment
discrimination;
g. any claim for any loss, cost,
damage, or expense arising out of any dispute over the
non-withholding or other tax treatment of any of the
procee
