Exhibit 10.60
February 26, 2003
Xx. Xxxxxxxxx Xxx
000 Xxxxxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
Re: Separation Agreement
Dear Augustine:
This letter, upon your signature, will constitute the agreement between you
and Deltagen, Inc. ("Deltagen") on the terms of your separation from employment
with Deltagen.
1. Your employment terminates effective February 26, 2003 (the "separation
date"). After that date, you therefore will no longer represent to anyone that
you are still an employee of Deltagen and you will not say or do anything
purporting to bind Deltagen or any of its affiliates.
2. On February 26, 2003 you will be paid your earned salary, accrued
vacation pay and personal leave pay (160 hours and 24 hours, respectively), and
all other amounts Deltagen owed to you through the separation date.
3. You have received or will receive by separate cover information
regarding your rights to health insurance continuation and your retirement
benefits. To the extent that you have such rights, nothing in this agreement
will impair those rights.
4. You have returned or will immediately return to Deltagen any building
key(s), security pass, or other access or identification cards (including
business cards) and any Deltagen property that is currently in your possession,
including any credit cards, computer equipment, mobile phones, documents, and
any information you have about Deltagen's practices, procedures, trade secrets,
customer lists, or product marketing. By no later than March 21, 2003, you will
submit all expenses for reimbursement that you have accrued related to your
Deltagen expense accounts and you will pay all amounts owed on any corporate
credit card(s) previously issued to you.
5. In consideration of your acceptance of this Separation Agreement,
Deltagen will provide you with a severance payment of $40,000 which is
equivalent to your current base rate of pay for the period of two months.
Payment of this amount will be made on Deltagen's regular pay dates between
February 28, 2003 and April 30, 2003. Payments shall be direct-deposited into
your checking account on file at Deltagen. The customary payroll deductions
shall be made from this severance payment.
Xxxxxxxxx Xxx
February 26, 2003
Page 2
6. You waive and release and promise never to assert any and all claims
that you have or might have against Deltagen and its predecessors, subsidiaries,
related entities, officers, directors, shareholders, agents, attorneys,
employees, successors, or assigns, arising from or related to your employment
with Deltagen and/or the termination of your employment with Deltagen.
These claims include, but are not limited to, claims arising under federal,
state and local statutory or common law, such as the Age Discrimination in
Employment Act, Title VII of the Civil Rights Act of 1964, the Americans with
Disabilities Act, the California Fair Employment and Housing Act, the Employee
Retirement and Income Security Act, and the law of contract and tort.
You also waive and release and promise never to assert any such claims,
even if you do not believe that you have such claims. You therefore waive your
rights under (S) 1542 of the Civil Code of California which states:
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 to him must have materially affected his settlement with the
debtor.
You understand and agree that claims or facts in addition to or different from
those which are now known or believed by you to exist may hereafter be
discovered, but it is your intention to release all claims you have or may have
against Deltagen, its officers, directors, employees or agents, whether known,
unknown, suspected, or unsuspected. However, your release shall not release any
of your rights or claims that you have (a) in any employee benefit(s) plans
(including but not limited to stock or stock option agreements and plans), (b)
to indemnification to the extent permitted under Deltagen's bylaws or
pre-existing indemnification agreements or as permitted by California or
Delaware law or as may be available to you under Deltagen's directors' and
officers' liability insurance coverage, and (c) under the Loan Repayment
Agreement or other loan agreements.
Deltagen, in further consideration for you signing this Separation Agreement,
releases and forever discharges you from all actions, causes of action,
liabilities, disputes, judgments, damages and claims in any manner related to
your employment with Deltagen except as provided by any loan agreements with you
and under Deltagen's bylaws or pre-existing indemnification agreements.
7. You will not, unless required or otherwise permitted by law, disclose to
others any information regarding the following:
Xxxxxxxxx Xxx
February 26, 2003
Page 3
a. Any information regarding Deltagen's practices, procedures, trade
secrets, customer lists, or product marketing. You acknowledge that,
because of your position with Deltagen, you have specific knowledge of many
types of information which is proprietary to Deltagen, including, without
limitation, its current and planned technology; its current and planned
corporate strategies; strategic customers and business partners; and the
identity, skills and interest of its employees. You agree to keep and treat
all such proprietary information as confidential. You acknowledge and
reaffirm your obligations to Deltagen under the Proprietary Information and
Invention Agreement signed by you, wherein you agreed to keep and treat all
such proprietary these obligations survive your termination of employment
with Deltagen. You also agree that for a period of one year following the
effective termination date, you will not, directly or indirectly, on behalf
of yourself or any other person or entity, solicit or recruit any employees
of Deltagen, to leave Deltagen and/or perform work or services for another
employer.
b. The terms of this Separation Agreement, the benefit being paid
under it or the fact of its payment, except that you may disclose this
information to your attorney, accountant or other professional advisor to
whom you must make the disclosure in order for them to render professional
services to you. You will instruct them, however, to maintain the
confidentiality of this information just as you must.
8. You agree that you will not do or say anything that damages or impairs
in any way the business organization, goodwill, or reputation of Deltagen or any
of its affiliates or related entities.
9. You agree to assist Deltagen with Corporate Development projects for a
period of up to twenty (20) days during the month following your Separation
Date, as required. Deltagen shall reimburse you for pre-approved, reasonable
out-of-pocket expenses incurred by you in performing services for Deltagen upon
production of supporting receipts and documentation.
10. In the event that you breach any of your material obligations under
this Separation Agreement or as otherwise imposed by law, Deltagen will be
entitled to recover the benefit paid under the Agreement and to obtain all other
relief provided by law or equity.
11. You and Deltagen reserve the right to enforce this Separation
Agreement. You and Deltagen will submit any disputes relating to this Agreement
(other than those relating to intellectual property) to binding arbitration
conducted by the American Arbitration Association in Santa Xxxxx County,
California.
Xxxxxxxxx Xxx
February 26, 2003
Page 4
12. If a court of competent jurisdiction invalidates any part of this
Agreement, the remaining portions will remain in force.
13. This Agreement contains the entire agreement between you and Deltagen
with respect to the subject matter hereof and all prior agreements,
understandings, representations, oral agreements and writings are expressly
superseded hereby and are of no further force and effect. Neither party has
relied upon any representations or promises that are not contained in this
Agreement. This Agreement is entered into and governed by the laws of the State
of California.
14. This Separation Agreement shall inure to the benefit of and be binding
upon the successors and assigns, of each of the parties to it.
15. Deltagen shall pay for your reasonable legal fees incurred with respect
to the review of this Separation Agreement. Such fees shall not exceed $500 and
shall be supported by invoices to Deltagen that provide sufficient documentation
of the legal work performed.
16. You have up to two (2) business days from the date of this letter, or
February 28, 2003, to accept the terms of this Separation Agreement, although
you may accept it at any time within those two (2) days. You are advised to
consult an attorney about the Agreement.
To accept the Agreement, please sign and date this letter and return it to
me. (An extra copy for your files is enclosed.) The date you signed and dated
this letter will be the "effective date" of the Agreement.
Augustine, Deltagen and I wish you every success in your future endeavors.
Sincerely,
Xxxxxxx X. Xxxxxxx
Chief Financial Officer
Enclosure
Xxxxxxxxx Xxx
February 26, 2003
Page 5
By signing this letter, I acknowledge that I have had the opportunity to
review this Separation Agreement carefully with an attorney of my choice; that I
understand the terms of the Agreement; and that I voluntarily agree to them.
Date: ______________________________
____________________________________
Xxxxxxxxx Xxx
