|
<PAGE>
EXHIBIT 10.23
SEPARATION AGREEMENT AND RELEASE
This Separation Agreement and Release ("Agreement and Release")
is made as
of October 12, 2006 (the "Execution Date"), by and among Helix
BioMedix, Inc.
("Helix"), and David Drajeske ("Drajeske"). Helix and Drajeske
are sometimes
referred to collectively as the "Parties."
RECITALS
I. On August 12, 2004, Helix and Drajeske entered into an
Employment
Agreement ("Employment Agreement") pursuant to which Helix
agreed to employ
Drajeske, and Drajeske accepted employment, as Vice-President -
Business
Development of Helix.
II. Drajeske and Helix have agreed 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 Drajeske's employment
relationship with
Helix, including but not limited to any possible claims Drajeske
could assert
against Helix and any affiliates, subsidiaries, directors,
officers,
shareholders, employees, agents or anyone else against whom
Drajeske could
assert a claim due to his employment with Helix or its
termination.
AGREEMENT AND RELEASE
Therefore, Helix on the one hand and Drajeske on the other hand,
intending
to be legally bound, agree as follows:
1. NON-ADMISSION; CONFIDENTIALITY OF AGREEMENT AND RELEASE.
Drajeske
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 Drajeske. Drajeske 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 Drajeske agree to
discontinue
Drajeske's employment relationship and terminate the Employment
Agreement
effective October 15, 2006 ("Resignation Date").
3. SEPARATION PAYMENT. As consideration for this Agreement and
Release,
Helix agrees to pay Drajeske an aggregate amount of $100,000,
subject to lawful
deductions, payable in six (6) equal monthly installments. The
payment under
this paragraph 3 will be made after the seventh day after this
Agreement and
Release is signed by Drajeske and delivered to Helix (the
"Effective Date") as
set forth below in paragraph 8.
4. ACKNOWLEDGEMENT OF PAYMENT. Drajeske specifically
acknowledges and
agrees that the consideration identified in paragraph 3 above
exceeds the amount
Drajeske would otherwise be entitled to receive upon termination
of Drajeske's
employment with Helix, and that the consideration set forth
above is in exchange
for entering into this Agreement and Release. Drajeske further
agrees that he
will not at any time in the future seek consideration
Helix - Drajeske - Agreement and Release ____________
Initials
<PAGE>
from Helix other than as set forth in this Agreement and
Release. Drajeske
specifically acknowledges and agrees that Helix has not made any
representations
to Drajeske regarding the tax or legal consequences of any
consideration due to
Drajeske or for his benefit pursuant to this Agreement and
Release.
5. STOCK OPTIONS. Helix and Drajeske acknowledge and agree that
as of the
Resignation Date, Drajeske holds vested options to purchase up
to 164,444 shares
of Helix's common stock. Such vested options shall terminate on
October 15,
2009; any options held by Drajeske that are unvested as of the
Resignation Date
shall terminate in their entirety as of the Resignation
Date.
6. 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 Drajeske. Drajeske 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.
7. RELEASE. Drajeske 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 Drajeske's association with Helix,
including his employment
or its termination. This release by Drajeske 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
Drajeske release any and all claims, of whatever kind or nature,
in exchange for
the undertakings in this Agreement and Release by Helix.
Drajeske 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 Drajeske could assert any of the released
claims) from any
further liability to Drajeske (or to anyone else he has power to
bind in this
Agreement and Release) in connection with such claims.
8. RELEASE OF CLAIMS UNDER THE ADEA. Drajeske 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. Drajeske
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
Helix - Drajeske - Agreement and Release ____________
Initials
2
<PAGE>
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 Drajeske 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, Drajeske 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 Drajeske, addressed to the following
individual at the
following location:
Steve Beatty, President
Helix BioMedix, Inc.
22122 20th Avenue SE, Suite 148
Bothell, WA 98021
Drajeske understands that if Drajeske revokes this Agreement and
Release
pursuant to this paragraph 8, the Agreement and Release will not
become
effective or enforceable and Drajeske will not be entitled to
any of the
benefits set forth in this Agreement and Release.
9. RETURN OF HELIX PROPERTY. Drajeske acknowledges and agrees
that he has
returned to Helix all personal property and equipment furnished
to or prepared
by Drajeske 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. Drajeske also acknowledges and agrees that he has not
retained any
written or other tangible materials containing any proprietary
inform
| 
