Exhibit

10.22




 




SEPARATION

AGREEMENT AND RELEASE OF CLAIMS




 




THIS SEPARATION

AND RELEASE AGREEMENT (the “Agreement”), dated December 11, 2002 is entered

into by DR. VANCE R. WHITE (“Executive”) and NANOGEN, INC., a Delaware

corporation (the “Company”).




 




WHEREAS, Executive

and the Company have had a business relationship wherein Executive has been an

officer, employee and director of the Company; and




 




WHEREAS, Executive

wishes to resign from the Company as described herein; and




 




WHEREAS, Executive

and the Company wish to end their relationship with all actual and potential

disputes between them completely and amicably resolved:




 




NOW, THEREFORE, in

consideration of the mutual covenants contained herein, and in consideration of

the amounts to be paid by the Company to Executive under this Agreement,

amounts which Executive is not otherwise entitled to receive, Executive and the

Company hereby agree as follows:




 




1.             Leave of Absence/Resignation

from Company.  Executive shall

continue to be employed by the Company until December 31, 2002.  Effective December 1, 2002 Executive will

resign as a member of the Board of Directors of the Company and take a leave of

absence from the Company for medical reasons. 

Until December 31, 2002 he shall continue to be an employee of the

Company and be entitled the all of the benefits and obligations connected

therewith. Executive shall resign from the Company and shall no longer be

employed as an officer, employee and director of the Company on December 31,

2002 (“Severance Date”).  Executive

agrees that at all times he is employed with the Company, he will fully and

faithfully discharge the duties and responsibilities of his position with the

Company, as requested by the Company’s Executive Chairman.




 




2.             Severance Compensation.




 




(a)  Lump Sum Payment.  The Company will make a lump sum payment of

$225,000 to Executive equal to nine (9) months of Executive’s base salary on

the Severance Date, minus standard tax, other required deductions and the

amount of any money owed by Executive to the Company as described in Section

2(b) below.




 




(b)  Loan Repayment.  Executive and the Company had previously

entered into a Loan Agreement whereby the Company provided Executive with a

loan of $150,000 for which Executive executed a Secured Promissory Note, dated

June 4, 2001 (the “Note”) to the Company and that was secured by a mortgage on

Executive’s home.  As of the Severance

Date, the principal and interest due to the Company under the Loan is

$167,329.24 (the “Outstanding Note Balance”). 

Pursuant to the Note, the Company shall deduct the Outstanding Note

Balance from the Lump Sum Payment described in Section 2(a).  Executive shall use any remaining




 




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amount from the Lump Sum Payment to pay taxes incurred by his receipt

of such amount and for personal purposes.




 




(c)  Extend Exercise Date for Vested Stock

Options.  As of the Severance Date,

Executive has received either incentive stock options or nonqualified stock

options to purchase up to 535,000 shares of the Company’s Common Stock as

various exercise prices pursuant to the Company’s 1997 Stock Incentive Plan, as

amended.  Of this amount, 229,894 shall

be vested as of the Severance Date and 305,106 shall remain unvested.   As of the Severance Date, all of

Executive’s unvested shares shall expire and all of Executive’s vested shares

remain exercisable for a period of five (5) years from the Severance Date,

subject to the restrictions described below in Section 6. Such options shall be

subject to the U.S. tax laws and depending on such laws and the number of

shares that are exercisable by Executive in any given year, incentive stock

options may lose their favorable tax treatment and become nonqualified stock

options.  Any incentive stock options

held by Executive with an exercise price below the closing price of the

Company’s Common Stock on the Severance Date shall become nonqualified stock

options on the Severance Date and any incentive stock options with an exercise

price above the closing price of the Company’s Common Stock on the Severance

Date shall remain incentive stock options for up to three (3) months after the

Severance Date and thereafter shall become nonqualified stock options.  Executive acknowledges and agrees that he

must consult with his own tax advisor or attorney regarding the appropriate tax

treatment for all of his incentive stock options and nonqualified stock options

and that he is not depending on any employee of the Company to provide such

advice.




 




3.             Other Benefits.  For a period of three months following the

Severance Date, the Company shall pay the Executive’s COBRA costs for such

benefit plans as may be offered during that time. Currently those plans are

Blue Cross PPO, Guardian Dental, VSP Vision Plan and an EAP program.  Other than as provided for in this Section

3, following the Severance Date, Executive shall not be eligible to participate

in any of the Company’s employee benefit plans (including, without limitation,

the 401(k) plan), fringe benefit programs, and group insurance arrangements,

except under COBRA, the stock option agreements and stock vesting programs

described in Section 2 (c) for the periods described therein.




 




4.             Tax Liability.  Executive shall be responsible for all tax

liability associated with any payments made pursuant to Section 2, except as

described herein.




 




5.             Non-Competition.  As consideration for the severance

compensation described in Section 2 and in order to protect the Company’s trade

secret and other “confidential information” of the Company as described below

in Section 7, during a period of nine (9) months from the Severance Date,

Executive shall not, other than with the prior written consent of the Board of

Directors of the Company,  engage,

directly or indirectly, in any other business activity (whether or not pursued

for pecuniary advantage) with a company currently commercializing microarray

technology for use in clinical molecular diagnostics, provided that Executive

may own less than two percent of the outstanding securities of any such publicly

traded competing corporation.  Any

violation by Executive of this Section 5 shall result in the




 




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immediate cancellation of the extended exercise period for all options

described in Section 2 and the Company may thereafter take whatever other legal

steps it deems necessary to enforce this provision and protect the Company’s

confidential information.




 




6.             Nonsolicitation.  During a period of two (2) years after the

Severance Date, Executive will not directly or indirectly engage, encourage or

participate in the solicitations of any employee or consultant of the Company

to leave the Company for any reason or to devote less than all of any such

employee’s efforts to the affairs of the Company.




 




7.             Nondisclosure. During the

term of this Agreement and thereafter, Executive shall not, without the prior

written consent of management, disclose or use for any purpose (except in the

course of his service under this Agreement and in furtherance of the business of

the Company) confidential information or proprietary data of the Company,

except as required by applicable law or legal process; provided, however, that

“confidential information” shall not include any information known generally to

the public or ascertainable from public or published information (other than as

a result of unauthorized disclosure by Executive) or any information of a type

not otherwise considered confidential by persons engaged in the same business

or a business similar to that conducted by the Company.  Executive agrees to deliver to the Company

at the termination of his service, or at any other time that the Company may

request, all memoranda, notes, plans, records, reports and other documents (and

copies thereof) relating to the business of the Company which he may then

possess or have under his control. 

Executive’s obligations to the Company under the Proprietary

Information, Inventions and Dispute Resolution Agreement, dated April __, 2001

by and between the Company and Executive (the “Proprietary Inventions

Agreement”) shall remain in full force and effect, notwithstanding the release

contained herein, except that Section 2(f) of the Proprietary Inventions

Agreement shall be replaced by Section 6 herein.




 




8.             Release. Executive acknowledges

that the severance package described herein is given in exchange for his

signing this Agreement, and he is not otherwise entitled to receive such

benefits from the Company.  Executive

agrees that the severance package is in full satisfaction of any claims,

liabilities, demands or causes of action, known or unknown and he hereby

releases and forever discharges the Company and each of its past and present

directors, managers, officers, shareholders, agents, consultants, advisers,

employees, attorneys, servants, parents, subsidiaries, employee benefit plans,

predecessors, successors and assigns, and each of them separately and

collectively (the “Releasees”) from any and all claims, liens, demands, causes

of action, obligations, damages and liabilities of any nature whatsoever, known

or unknown, that he ever had, now has or may hereafter claim to have against

the Releasees.  The release includes,

but is not limited to:




 




(a)  any and all claims relating to mental,

physical or emotional injuries sustained from invasion of privacy, to

defamation, to interference with prospective economic advantage, to intentional

or negligent infliction of emotional distress, to Executive’s employment or

nonemployment by the Company, to the termination of his employment, to any

status, term or condition in such employment, or to any physical or mental harm

or distress from such




 




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employment or from termination of such employment;:




 




(b)  any and all claims under California statutory

or decisional law pertaining to wrongful discharge, discrimination, retaliation

or breach of contract or breach of public policy;




 




(c)  any and all claims under the Fair Employment

and Housing Act, Title VII of the Civil Rights Act of 1964 or the Americans

with Disabilities Act;




 




(d)  any and all claims for costs, expenses or

attorneys’ fees;




 




(e)  any claims to rehire rights; provided,

however, that claims for vested benefits and claims for workers’ compensation

and unemployment insurance benefits are not waived; and




 




(f)  any and all claims relating to the tax

obligation for which Executive may become liable as a result of this release or

the payment of consideration referred to above.




 




Execution of this

Agreement does not bar any claims for breach of this Agreement. The Company

releases Executive from any claims it may have against Executive prior to the

date of this Agreement, including (but not limited to) such claims as are

specified in this Section 8.  This Agreement

recognizes the rights and responsibilities of the Equal Employment Opportunity

Commission (“EEOC”) to enforce the statutes which come under its jurisdiction

and is not intended to prevent Executive from participating in any

investigation or proceeding conducted by the EEOC; provided, however, that

nothing in this section limits or affects the finality or the scope of the

release provided in this Section 8, the waiver provided in Section 9 or the

agreement to submit claims to final and binding arbitration.




 




(g)  Opportunity to Revoke.  Executive

acknowledges that he is aware that he has twenty-one (21) calendar days to

decide whether to enter into this agreement and release of claims, and return

this executed agreement to the Company.  Executive agrees that he was

offered twenty-one (21) calendar days to consider this agreement and

release.  This period is designed to allow Executive to consult with a

financial advisor, accountant, attorney or anyone else whose advice Executive

needs.  Executive should consult appropriate advisors, including an

attorney, during this period.




 




Executive further

acknowledges that he is aware that he may revoke this agreement and release of

claims within seven (7) business days after it is signed and received by the

Company.  He further agrees that he is aware that in the event he timely

exercises his right of rescission he will have no rights to the severance

payment or other rights under this Agreement offered by the Company.  If

this agreement and release is not revoked in a writing delivered to the Company

in the time period set forth above, any severance payments due will be made on

or before January 10, 2003.




 




9.             Waiver.  The parties expressly waive all rights under

Section 1542 of the Civil Code




 




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of California which provides:




 




“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.”




 




The parties agree that the possibility that such unknown claims exist

was taken into account in determining the amount of consideration to be paid

for the giving of this Agreement.




 




10.           Covenant Not To Sue.  Executive covenants and agrees that he will

never, individually or with any person or in any way, commence or aid in any

way, except as required by due legal process, prosecute or cause or permit to

be commenced or prosecuted, any action or other proceeding based upon any claim

which is the subject of this Agreement. 

This Agreement shall be deemed breached and a cause of action shall be

deemed to have accrued immediately upon the commencement or prosecution of any

action or proceeding contrary to this Agreement.  Executive agrees that if he brings an action to challenge the

enforceability of this Agreement, he will tender to a neutral escrow, as

designated by the Company, all consideration that he received pursuant to this

Agreement.




 




In the event of

any breach of this Section 10, the Company shall be entitled to recover

not only the amount of judgment which may be awarded against such releasee, but

also all such other damages, costs and expenses as may be incurred by such

releasee, including court costs, attorneys’ fees and all costs and expenses,

taxable or otherwise, in preparing the defense of or defending against, or

seeking or obtaining an abatement of or injunction against, any action or

proceeding brought in violation of this Section 10 and in prosecuting any

claim, counterclaim or cross-claim based hereon.




 




11.           No Assignment; Authority.  The parties represent and warrant that no

other person had or has or claims any interest in the claims referred to in

Section 8 above; that they have the sole right and exclusive authority to

execute this Agreement; that they have the sole right to receive the

consideration paid therefor; and that they have not sold, assigned,

transferred, conveyed or otherwise disposed of any claim or demand relating to

any matter covered by this Agreement.




 




12.           No Admission. The parties

acknowledge that the payment of consideration, referred to herein, is made

solely for the purpose of purchasing peace and eliminating possible involve­ment

in protracted litigation based upon disputed claims that the other could make

and does not constitute an admission or concession of any liability on account

of any of said claims, liability for which is expressly denied by all

releasees.




 




13.           Confidentiality. The parties

covenant and agree to maintain the confidentiality of the existence and terms

of this Agreement, including (without limitation) the nature and payment of

consideration referred to in this Agreement and to make no voluntary statement,




 




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except as may be necessary for the purposes of audit, taxation returns

or other disclosures required by law.




 




14.       Miscellaneous

Provisions.




 




(a)  Notice.  Notices and all other communications contemplated by this

Agreement shall be in writing and shall be deemed to have been duly given when

personally delivered or when mailed by U.S. certified mail, return receipt

requested and postage prepaid.  In the

case of Executive, mailed notices shall be addressed to him at the home address

which he most recently communicated to the Company in writing.  In the case of the Company, mailed notices

shall be addressed to its corporate headquarters, and all notices shall be

directed to the attention of its Assistant Secretary.




 




(b)  Waiver.  No provision of this Agreement shall be modified, waived or

discharged unless the modification, waiver or discharge is agreed to in writing

and signed by Executive and by an authorized officer of the Company.  No waiver by either party of any breach of,

or of compliance with, any condition or provision of this Agreement by the other

party shall be considered a waiver of any other condition or provision or of

the same condition or provision at another time.




 




(c)  Whole Agreement.  No agreements (including any employment

agreement), representations or understandings (whether oral or written and

whether express or implied) which are not expressly set forth in this Agreement

have been made or entered into by either party with respect to the subject

matter hereof, except that the Proprietary Inventions Agreement shall remain in

full force and effect.




 




(d)  Choice of Law.  The validity, interpretation, construction

and performance of this Agreement shall be governed by the laws of the State of

California (other than choice-of-law provisions).




 




(e)  Arbitration.  Any dispute arising out of or relating to

this Agreement, or the breach termination or validity thereof (including the

determination of the interpretation or scope of this agreement to arbitrate),

shall be resolved first by mediation pursuant to the Employment Mediation Rules

of the American Arbitration Association. 

If mediation is not successful, then the dispute shall be resolved by a

single neutral arbitrator in binding arbitration administered by the American

Arbitration Association under its Rules for the Resolution of Employment

Disputes.  The arbitration shall take

place in San Diego, California, and judgment upon the award rendered by the

arbitrator may be entered by any court having jurisdiction thereof.  The Company shall bear the costs of

arbitration if Executive prevails.  If

the Company prevails, Executive shall pay half the cost of the arbitration or

$500.00, whichever is less.  Each party

shall pay its own attorneys’ fees, unless the arbitrator orders otherwise,

pursuant to applicable law, except as provided in Section 10.




 




(f)  Consultation with Counsel.   Executive acknowledges that he has been




 




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advised and had the opportunity to consult legal counsel prior to

signing this Agreement and that he is entering into this Agreement knowingly

and voluntarily.




 




(g)  Severability.  The invalidity or unenforceability of any

provision of this Agreement shall not affect the validity or enforceability of

any other provision hereof, which shall remain in full force and effect.




 




(h)  Assignment and Successors.  Neither party shall assign any right or

delegate any obligation hereunder without the other party’s written consent,

and any purported assignment or delegation by a party hereto without the other

party’s written consent shall be void. 

This Agreement shall be binding upon and inure to the benefit of the

Company and its successors and Executive, his heirs, executors, administrators

and legal representatives.




 




IN WITNESS WHEREOF,  each of the

parties has executed this Agreement, in the case of the Company by its duly

authorized officer.




 




 




	

   


  	

   


  	

  By:


  	

  /s/ DR. VANCE R. WHITE


  	

   


  
	

   


  	

   


  	

   


  	

  Dr. Vance R.

  White


  
	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

  NANOGEN, INC.


  
	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

  By:


  	

  /s/ HOWARD C. BIRNDORF


  	

   


  
	

   


  	

   


  	

   


  	

  Howard C.

  Birndorf


  
	

   


  	

   


  	

   


  	

  Executive

  Chairman


  





 




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