Settlement Agreement - Invitrogen Corp. and Daryl Faulkner
SETTLEMENT AGREEMENT
This Settlement Agreement (this "Agreement") is entered into by and between
Daryl Faulkner ("Executive") and Invitrogen Corporation, a Delaware Corporation
(the "Company") and is effective as of September 9, 2002 (the "Effective Date").
WHEREAS, Executive entered into a Promotion and Relocation Letter dated May 31,
2002 with the Company (the "Promotion and Relocation Letter"); and
WHEREAS, the Promotion and Relocation Letter provided that Executive would be
entitled to receive an interest free loan of up to $150,000 to assist Executive
in the purchase of a house (the "Relocation Loan"); and
WHEREAS, Executive executed a Secured Promissory Note dated July 18, 2002, in
favor of the Company (the "Note"), with a principal amount of $150,000, to
secure the Relocation Loan; and
WHEREAS, the Relocation Loan secured by the Note has not been funded by the
Company, and the Company has determined that based on recently enacted federal
legislation, the Company is no longer willing to provide Executive with the
Relocation Loan; and
WHEREAS, the Company would like to continue to employ Executive, and Executive
would like to continue to be employed by the Company; and
WHEREAS, Executive and the Company would like to settle all claims arising out
of the Company's decision not to provide Executive with the Relocation Loan; and
WHEREAS, the Company is willing to make certain payments to Executive in
exchange for a release of all claims arising out of the Company's decision not
to provide Executive with the Relocation Loan.
NOW THEREFORE, in consideration of the premises, mutual covenants and agreements
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties intending to be
legally bound, agree as follows:
1. Settlement Payments. Subject to the below provisions regarding the Company's
obligations following the termination of Executive's employment, the Company
agrees to pay to Executive the following settlement payments, which are
collectively referred to as the "Settlement Payments":
a. The sum of $6,917.72 on or before September 30, 2002;
b. Commencing on September 30, 2002, and ending on June 30, 2007,
the sum of $740.13, payable in equal installments (each a
"Relocation Bonus Payment"), in accordance with the Company's
normal payroll practices, on the 15th day and the last day of
each month (each a "Payment Date");
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c. The sum of $108,663.09, payable in three lump sum installments
(each a "Balloon Payment") in the amounts and on the dates
specified below (each a "Payment Date"), less applicable
withholdings as required by law or regulation:
Amount Date
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i. $43,219.18 July 1, 2005
ii. $47,312.89 July 1, 2006
iii. $18,131.02 July 1, 2007
In the event Executive's employment is terminated by the Company for Cause (as
defined below) prior to any Payment Date, then the Company shall have no
obligation to pay any Settlement Payments due to be paid following the Date of
Termination (as defined below) of Executive's employment.
In the event Executive's employment is terminated by the Company without Cause
prior to any Payment Date, then the Company will make all outstanding, unpaid
Balloon Payments to Executive within 30 days of the Date of Termination, but the
Company shall have no obligation to pay any outstanding, unpaid Relocation Bonus
Payments.
In the event Executive's employment is terminated as a result of Executive's
Disability (as defined below) prior to any Payment Date, then the Company will
continue to make each Settlement Payment on its respective Payment Date,
provided that Executive either has been employed by the Company or Disabled
during the entire period beginning on the date of this Agreement and ending on
such Payment Date.
In the event Executive's employment is terminated as a result of Executive's
death prior to any Payment Date, then the Company will make all remaining,
unpaid Settlement Payments to Executive's estate within 30 days of the Date of
Termination.
In the event Executive's employment terminates prior to any Payment Date by
Executive's voluntary resignation, then the Company will continue to pay each
Relocation Bonus Payment on its respective Payment Date for a period of 180 days
following the Date of Termination, but shall have no obligation to pay any
Relocation Bonus Payment which were due to be paid following such 180 days, and
shall have no obligation to pay any remaining, unpaid Balloon Payments due after
the Date of Termination.
2. At-Will. Executive acknowledges that Executive continues to be employed by
the Company as an at-will employee and that nothing in this Agreement is
intended to or should be construed to contradict, modify or alter Executive's
at-will employment status.
3. Definitions.
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a. Cause. For purposes of this Agreement, "Cause" shall mean: (i) theft,
dishonesty, misconduct, willful neglect of duties or falsification of any
employment or Company records; (ii) improper use or disclosure of the Company's
confidential or proprietary information; (iii) conviction of any crime that
impairs Executive's ability to perform his/her duties for the Company; or (iv)
any action that has a detrimental effect on the Company's reputation or
business, as determined in the sole and exclusive discretion of the Company.
b. Disability. The term "Disability" means Executive's inability to
perform the essential functions of Executive's job due to a mental or physical
condition, with or without reasonable accommodation. In no event will
Executive's employment be terminated for Disability until 180 consecutive days
has elapsed and Disability has been determined by a physician selected by the
Company or its insurers and acceptable to Executive or Executive's legal
representative (such agreement as to acceptability not to be withheld
unreasonably).
c. Date of Termination. The term "Date of Termination" means the date of
receipt of the Notice of Termination (described below) or any later date
specified therein, as the case may be; provided, however, that: (i) if
Executive's employment is terminated by the Company without Cause, the Date of
Termination shall be the date the Company notifies the Executive of such
termination; and (ii) if Executive's employment is terminated by reason of death
or Disability, the Date of Termination shall be the date of Executive's death or
the effective date of the Disability, as the case may be.
4. Notice of Termination. Any termination by the Company for Cause before June
30, 2007, shall be communicated by "Notice of Termination" to Executive in
accordance with the notice provision contained in Section 11(b) of this
Agreement. The "Notice of Termination" must be in writing and set forth: (a) the
facts and circumstances, in reasonable detail, claimed to provide a basis for
the termination for Cause; (b) if the Date of Termination is other than the date
of receipt of such notice, the termination date (which shall be not more than
thirty (30) days after the giving of such notice). The Company's failure to set
forth in the Notice of Termination any fact or circumstance that contributes to
a showing of Cause shall not waive any right hereunder or preclude the Company
from asserting such fact or circumstance in enforcing the Company's rights
hereunder.
5. Independent Obligations. The Settlement Payments are in settlement of
preexisting contractual claims and shall not: (a) be reduced by any severance
received by Executive, or reduce any severance to be received by Executive, upon
termination of employment under any severance plan, policy, agreement, or
arrangement of the Company applicable to Executive or a group of employees of
the Company including the Executive, whether or not any such severance received
by Executive is payable as a result in whole or in part of a change in control
of the Company prior to such termination of employment; (b) constitute "salary,"
"bonus," or "severance" for purposes of any bonus plan, including the Company's
Incentive Compensation Plan, or any change in control agreement, and
accordingly, shall not increase, decrease, or affect in any way the calculation
of money payable or entitlement to other benefits pursuant to such bonus plan or
change in control agreement; (c) be affected by any set-off, counterclaim,
recoupment, defense or other claim, right or action that the Company may have
against Executive or others; and (d) be subject to any requirement that
Executive seek other employment or take any other action by way of mitigation,
nor will it be offset or otherwise be reduced by reason of Executive's receipt
of compensation from any source other than the Company.
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6. Non-exclusivity of Rights. Nothing in this Agreement shall prevent or limit
Executive's continuing or future participation in any benefit, bonus, incentive
or other plans, programs, policies or practices provided by the Company or any
of its affiliated companies and for which Executive may qualify, nor shall
anything herein limit or otherwise affect such rights as Executive may have
under any other agreements with the Company or any of its affiliated companies.
Amounts that are vested benefits or that Executive is otherwise entitled to
receive under any plan, policy, practice or program of the Company or any of its
affiliated companies at or subsequent to the Date of Termination shall be
payable in accordance with such plan, policy, practice or program. In addition,
nothing in this Agreement is intended to or should be construed to contradict,
modify or alter the terms and conditions of the Promotion and Relocation Letter.
The terms and conditions of Executive's employment shall continue to be governed
by the Promotion and Relocation Letter except as expressly set forth herein.
7. Release.
a. Executive fully and unconditionally releases and discharges all
claims and causes of action that Executive or Executive's heirs, personal
representatives, successors, or assigns ever had, now have, or hereafter may
have against the Company, and any subsidiary corporations, divisions and
affiliated corporations, partnerships or other affiliated entities of the
Company, past and present, as well as the Company's employees, officers,
directors, agents, shareholders, successors and assigns (collectively, "Released
Parties") on account of any claims and/or causes of action arising out of or
relating to the Company's decision not to provide the Executive with the
Relocation Loan, and any other document relating thereto or delivered in
connection with the transactions contemplated thereby.
b. Executive declares and represents that Executive intends this
Agreement to be complete and not subject to any claim of mistake, and that the
release herein expresses a full and complete release of all claims, known and
unknown, suspected or unsuspected arising out of or relating to the Company's
decision not to provide Executive with the Relocation Loan, and any other
document relating thereto or delivered in connection with the transactions
contemplated thereby and, regardless of the adequacy or inadequacy of the
consideration, Executive intends the release herein to be final and complete.
Executive executes this Agreement with the full knowledge that the release
covers all possible claims against the Released Parties arising out of or
relating to the Company's decision not to provide Executive with the Relocation
Loan, to the fullest extent permitted by law. Executive further agrees that this
release is to be interpreted broadly and includes the waiver of all rights under
California Civil Code section 1542, which provides that "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 by him must have
materially affected his settlement with the debtor."
c. The Company fully and unconditionally releases and discharges all
claims and causes of action that the Company ever had, now has, or hereafter may
have against Executive, on account of any claims and/or causes of action arising
out of or relating to the Note, and any other document relating thereto or
delivered in connection with the transactions contemplated thereby.
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8. Termination of Settlement Agreement; Release. Simultaneous with the payment
of the last installment of the Settlement Payments, Executive agrees to sign a
release similar to the release set forth in Section 7(b) above that acknowledges
that the Company has fully performed and satisfied all of its obligations under
this Agreement and that releases all claims or causes of action arising out of
or relating to this Agreement.
9. Arbitration. Any dispute, controversy or claim arising out of or relating to
this Agreement, or any breach thereof, shall be determined and settled by
arbitration to be held in the City of San Diego pursuant to the employment rules
of the American Arbitration Association or any successor organization. Any award
rendered there under shall be final, conclusive and binding on the parties.
10. Successors.
a. This Agreement is personal to Executive and without the prior written
consent of the Company shall not be assignable by Executive otherwise than by
will or the laws of descent and distribution. This Agreement shall inure to the
benefit of and be enforceable by Executive's legal representatives.
b. This Agreement shall inure to the benefit of and be binding upon the
Company and its successors and assigns.
c. The Company will require any successor (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or substantially all of
the business and/or assets of the Company to assume expressly and agree to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession had taken place.
As used in this Agreement, "Company" shall mean the Company as herein defined
and any successor to its business and/or assets as aforesaid that assumes and
agrees to perform this Agreement by operation of law, or otherwise.
11. General Provisions.
a. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California, without reference to
principles of conflict of laws. The captions of this Agreement are not part of
the provisions hereof and shall have no force or effect. This Agreement may not
be amended or modified otherwise than by a written agreement executed by the
parties hereto or their respective successors and legal representatives.
b. Notices. All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party or by registered
or certified mail, return receipt requested, postage prepaid, to the addresses
set forth below or to such other address as either party shall have furnished to
the other in writing in accordance herewith. Notice and communications shall be
effective when actually received by the addressee.
c. Severability. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
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d. Waiver. Either party's failure to insist upon strict compliance with
any provision hereof in any particular instance shall not be deemed to be a
waiver of such provision or any other provision thereof.
e. Counterparts. This Agreement may be signed in two counterparts, each
of which together shall constitute one and the same Agreement, binding on the
parties as if each had signed the same document.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of
the date first written above.
INVITROGEN CORPORATION Daryl Faulkner
By:/s/ L. James Runchey /s/ Daryl Faulkner
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Printed Name: L. James Runchey 2867 Rancho Diamonte
Carlsbad, California 92009
Title: Vice President, Human Resources
Address: Invitrogen Corporation
1600 Faraday Avenue
Carlsbad, CA 92008
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