SEPARATION AND GENERAL RELEASE
AGREEMENT
This
Separation and General Release Agreement (this “
Agreement ”) is being entered into as of this 10th day
of March, 2009, by and between Biolase Technology, Inc. (the
“ Company ”), and Jake P. St. Philip, an
individual (“ Employee ”) (each of the Company
and Employee is sometimes hereinafter referred to individually, as
a “ Party ” and collectively, as the “
Parties ”).
WHEREAS,
Employee and the Company are parties to that certain Employment
Agreement, dated as of January 2, 2008 (the “
Employment Agreement ”).
WHEREAS,
the Parties wish to provide for severance benefits in lieu of any
severance benefits provided under the Employment Agreement on the
terms and conditions set forth below.
WHEREFORE
in consideration of the foregoing premises and the terms and
conditions set forth below, the Parties agree as
follows:
1.
Termination of Employment .
a.
The Company has terminated Employee’s employment, effective
as of March 5, 2009 (the “ Effective Date
”). The Company terminated Employee from his position as the
Chief Executive Officer, effective as of the Effective Date.
Employee hereby acknowledges receipt of the Company’s notice
of termination, and resigns as a member of the Board of Directors
of the Company, and from each position as a director, officer
and/or employee of the Company or any subsidiary or affiliate of
the Company, effective as of the Effective Date.
b.
Employee acknowledges that he has been paid all salary and wages
through and including the Effective Date, including without
limitation, and any accrued unused vacation benefits, and Employee
has been reimbursed for all business expenses. Except as otherwise
provided for in this Agreement, the rights and obligations of
Employee and the Company under the Employment Agreement terminated
on the Effective Date and shall have no further force or effect
after the Effective Date.
c.
Provided that within twenty-one days of the date on which Employee
receives this Agreement, Employee executes and delivers to the
Company the Termination Certification attached hereto as
Exhibit A and the Mutual Release and Waiver of Claims
(the “ Release ”) attached hereto as
Exhibit B , and further provided that Employee does not
revoke the Release in accordance with its terms and conditions, the
Company shall provide to Employee, in lieu of any compensation or
benefits under the Employment Agreement, the following severance
benefits:
(1) The
Company shall pay to Employee $350,000.00, subject to applicable
tax withholding, payable (i) one-half on May 9, 2009, and
(ii) one-half in twelve (12) consecutive equal monthly
installments, commencing on June 1, 2009. The Company shall
pay such amount as wages, and report such amount as wages paid on
each payment date and shall remit the amount of the required tax
withholding to the relevant tax authorities.
(2) The
Company shall pay COBRA premiums for Employee (and his eligible
dependents) under the Company’s medical and dental benefit
plans, as in effect from time to time, for the twelve (12) month
period following the Effective Date. The benefits under such plans
shall be provided through insurance maintained by the
Company.
(3) To
the extent that it is permissible by law and in compliance with all
plan rules, the Company shall pay Employee’s premiums under
the Company’s group life insurance, accidental death and
dismemberment and disability benefit plans during the twelve
(12) month period following the Effective Date. The benefits
under such plans shall be provided through insurance maintained by
the Company.
d.
Except as provided for in this Agreement, Employee understands and
agrees that he is giving up any right or claim to further
compensation from the Company. Employee and the Company have no
further rights or obligations under the Employment Agreement,
except as otherwise specified in this Agreement.
2.
No Admission . Employee and the Company further understand
and agree that neither the payment of money nor the execution of
this Agreement, including the Release, shall constitute or be
construed as an admission of any liability whatsoever by either
Party.
3.
Severability . The provisions of this Agreement are
severable, and if any part of this Agreement is found to be
unenforceable, the other paragraphs (or portions thereof) shall
remain fully valid and enforceable.
4.
No Encouragement of Actions/Cooperation with the Company .
Employee agrees that he will not assist any person or entity in
bringing or pursuing legal action against the Company, its agents,
successors, representatives, employees and related and/or
affiliated companies, based on events occurring prior to the
Effective Date; provided , however , that this
Section 4 shall not apply to any legal action arising from or
related to this Agreement or to any conduct compelled by or
pursuant to applicable law, nor shall it prohibit, in any way,
Employee from responding to a subpoena or taking any other action
required by law. To the extent Employee is subpoenaed or otherwise
requested or required to provide any documents, testimony or other
information concerning the Company, he shall notify the Company as
soon as practicable, and reasonably cooperate with the Company in
opposing any such request or requirement to the extent permitted by
applicable law. Employee shall also provide information requested
by the Company, and make himself available at reasonable times upon
reasonable request to assist the Company in defending or
prosecuting any legal action or arbitration to the extent it
concerns events occurring during his employment or events as to
which he may have knowledge. The Company shall reimburse Employee
for any reasonable out of pocket expenses incurred and shall
compensate Employee for Employee’s actual time spent,
including travel time, providing information or assistance to the
Company, under the immediately preceding sentence, at the rate of
$250.00 per hour.
5.
No Disparagement . The Company and Employee agree that for a
period of ten (10) years after Employee’s employment with the
Company ceases, they will not, in any
2
communication
with any person or entity, including any actual or potential
customer, client, investor, vendor, distributor, or business
partner of the Company, or any third party media outlet, make any
derogatory or disparaging or critical negative statements —
orally, written or otherwise — against the other, or against
the Employee’s affiliates, or any of the Company’s
directors, officers, or agents (in the case of any of
Employee’s affiliates, at such time as they are affiliated
with Employee or, in the case of any of the Company’s
directors, officers or agents, at such time as they are employed
by, or acting for, the Company). The parties acknowledge and agree
that the obligation on the part of the Company not to make any
derogatory statements as set forth in this paragraph shall only
apply to the Company’s officers and directors.
6.
Company Property . Employee agrees to search
Employee’s home, office and all other storage areas for all
property owned by the Company and to return or destroy and/or
delete any located Company property and equipment to the Company
within fifteen (15) days of Employee’s execution of this
Agreement. In the event Employee discovers Company property or
equipment in his possession after such time, Employee shall deliver
such materials to the Company immediately upon
discovery.
7.
Choice of Law and Venue . The Parties acknowledge and agree
that this Agreement shall be interpreted in accordance with
California law. If any claims or actions arising out of or relating
to this Agreement or Employee’s service with the Company are
determined by an arbitrator not to be subject to Section 9,
they shall be filed in either the Superior Court of the State of
California for the County of Orange, or the Federal District Court
for the Central District of California.
8.
Sole and Entire Agreement; Obligations of Employee . With
the exception of the terms and conditions of the Release, the
Proprietary Information Agreement, and the non-solicitation
provisions set forth in Section 6 of the Employment Agreement,
this Agreement and the exhibits hereto represent the sole and
entire agreement among the Parties and supersedes all prior
agreements (including, without limitation, the Employment
Agreement), negotiations, and discussions between the Parties
hereto and/or their respective counsel. The non-solicitation
provisions of Section 6 of the Employment Agreement shall
remain in full force and effect and shall survive the termination
of Employee’s employment with the Company and the termination
of the Employment Agreement, and Employee acknowledges and agrees
that the Company shall have the right to communicate with any
future or prospective employer of Employee concerning
Employee’s obligations under this Agreement, the Proprietary
Information Agreement, and the non-solicitation provisions of
Section 6 of the Employment Agreement. Employee is not relying
on any promise or representation by the Company that is not
expressly stated herein and the Company is not relying on any
promise or representation by Employee that is not expressly stated
herein. Any agreement amending or superseding this Agreement must
be in writing, signed by duly authorized representatives of the
Parties, specifically reference this Agreement; and state the
intent of the Parties to amend or supersede this Agreement. This
Agreement may only be modified by a writing signed by both Employee
and a duly authorized officer of t
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