**Exhibit 10.36**

 

 

March 25, 2005

 

Mr.  Bob Richardson

7072 Eveningsong Dr.

Huntington Beach, CA 92648

 

Re:          Amended andRestated Side Letter regarding transition assistance and Option Vesting onChange of Control

 

Dear Bob:

 

                This letter agreementconfirms our agreement to amend and restate that certain Side Letter Agreement datedAugust 18, 2003 between you and Primal regarding transition assistance andoption vesting upon the occurrence of certain events or conditions.

 

Transition Assistance

 

                As discussed, Primalwould provide you with ninety (90) days transition assistance pay upon theoccurrence of certain events described hereafter.  This would be contingent upon your enteringinto a standard written separation agreement and release with Primal and would bepaid out according to the normal payroll schedule.  This agreement will apply only if youremployment is involuntarily terminated for other than Cause and will not applyif your employment is terminated for Cause or you voluntarily terminate youremployment with Primal.

 

                “Cause” means: (a)your failure to perform (other than by reason of disability) your duties andresponsibilities to Primal in any material respect in the good faithdetermination of the Board of Directors and, after receiving written notice tosuch effect from Primal, fails to cure the problem within ten (10) days ofreceipt of such written notice; (b) your gross negligence or willful misconductin the performance of your duties and responsibilities to Primal, such dutiesand responsibilities not to be unreasonably imposed; (c) your appropriation (orattempted appropriation) of a material business opportunity of Primal’s,including attempting to secure or securing any personal profit in connectionwith any transaction entered into on behalf of Primal; (d) yourmisappropriation (or attempted misappropriation) of any of Primal’s funds orproperty; or (e) the conviction of, or the entering of a guilty plea or plea ofno contest by you with respect to, a felony

 

Option Vesting on Change of Control

 

                As discussed, tothe extent permitted under applicable law, upon the occurrence of (i) a Changeof Control, (ii) you are terminated without Cause, or (iii) you terminate youremployment for Good Reason, all outstanding unvested stock options granted toyou by the Company shall accelerate and vest. Change of Control shall mean a change in the beneficial ownership of 50%or more of the combined voting power of Primal’s then outstanding votingsecurities, excluding a refinancing unless it causes a change in the control ofthe board of 

 

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directors. Good Reason shall mean any of the following: (a) a materialbreach by Primal of any agreement between you and Primal concerning youremployment with Primal; provided, however, that Primal shall have ten (10) daysto remedy the breach after receipt of written notice from you that the breachhas occurred if the breach is susceptible of cure; (b) the assignment withoutyour express and voluntary written consent to a title, status, overallposition, responsibilities, duties, reporting relationship, or general workingenvironment of a materially lesser status or degree of responsibility than yourtitle, status, overall position, responsibilities, duties, reportingrelationship, and general working environment at the effective date of thisletter agreement; (c) the requirement by Primal that you relocate your personalresidence outside the metropolitan Orange County, California area; (d) therelocation by Primal of your office more than 50 miles from its location as ofthe effective date of this letter agreement; (e) any failure by Primal toobtain the assumption of any material written agreement between you and Primalconcerning your employment by any successor of Primal or assignee ofsubstantially all of the business of Primal; or (f) any material change byPrimal in the benefits or incentive compensation offered to you from those inwhich you are participating on the effective date of this letter agreement, orthe taking of any action by Primal which would materially and adversely affectyour participation in or reduce your benefits under any of the benefits orincentive compensation plans of Primal or deprive you of any fringe benefitthen enjoyed by you; provided, however, that nothing contained in this subparagraph(f) shall be deemed to permit termination by you for Good Reason if Primaloffers a range of benefit plans and programs to you which, taken as a whole,are at least comparable to the benefits and incentive compensation in which youare participating on the effective date of this letter agreement.

 

If this arrangement is acceptable to you, please sign the enclosed copyof this letter and return it to me at your earliest convenience.

 
| Very truly yours,                     |    |   |
|---------------------------------------|---------|--------|
|                                  |    |   |
| /s/ Joseph R. Simrell                 |    |   |
| Joseph R. Simrell                     |    |   |
| Chief Executive Officer               |    |   |
|                                  |    |   |
| cc:  Personnel  File             |    |   |
|                                  |    |   |
| I agree to the terms described above: |    |   |
|                                  |    |   |
| /s/ Robert Richardson                 | 3/25/04 |   |
| Signature                             | Date    |   |

 

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