Exhibit 10.36


 


 


March 25, 2005


 


Mr.  Bob Richardson


7072 Eveningsong Dr.


Huntington Beach, CA 92648


 


Re:          Amended and
Restated Side Letter regarding transition assistance and Option Vesting on
Change of Control


 


Dear Bob:


 


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


 


Transition Assistance


 


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


 


                “Cause” means: (a)
your failure to perform (other than by reason of disability) your duties and
responsibilities to Primal in any material respect in the good faith
determination of the Board of Directors and, after receiving written notice to
such effect from Primal, fails to cure the problem within ten (10) days of
receipt of such written notice; (b) your gross negligence or willful misconduct
in the performance of your duties and responsibilities to Primal, such duties
and responsibilities not to be unreasonably imposed; (c) your appropriation (or
attempted appropriation) of a material business opportunity of Primal’s,
including attempting to secure or securing any personal profit in connection
with any transaction entered into on behalf of Primal; (d) your
misappropriation (or attempted misappropriation) of any of Primal’s funds or
property; or (e) the conviction of, or the entering of a guilty plea or plea of
no contest by you with respect to, a felony


 


Option Vesting on Change of Control


 


                As discussed, to
the extent permitted under applicable law, upon the occurrence of (i) a Change
of Control, (ii) you are terminated without Cause, or (iii) you terminate your
employment for Good Reason, all outstanding unvested stock options granted to
you 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 voting
securities, excluding a refinancing unless it causes a change in the control of
the board of 


 





















 


directors. Good Reason shall mean any of the following: (a) a material
breach by Primal of any agreement between you and Primal concerning your
employment with Primal; provided, however, that Primal shall have ten (10) days
to remedy the breach after receipt of written notice from you that the breach
has occurred if the breach is susceptible of cure; (b) the assignment without
your express and voluntary written consent to a title, status, overall
position, responsibilities, duties, reporting relationship, or general working
environment of a materially lesser status or degree of responsibility than your
title, status, overall position, responsibilities, duties, reporting
relationship, and general working environment at the effective date of this
letter agreement; (c) the requirement by Primal that you relocate your personal
residence outside the metropolitan Orange County, California area; (d) the
relocation by Primal of your office more than 50 miles from its location as of
the effective date of this letter agreement; (e) any failure by Primal to
obtain the assumption of any material written agreement between you and Primal
concerning your employment by any successor of Primal or assignee of
substantially all of the business of Primal; or (f) any material change by
Primal in the benefits or incentive compensation offered to you from those in
which you are participating on the effective date of this letter agreement, or
the taking of any action by Primal which would materially and adversely affect
your participation in or reduce your benefits under any of the benefits or
incentive compensation plans of Primal or deprive you of any fringe benefit
then enjoyed by you; provided, however, that nothing contained in this subparagraph
(f) shall be deemed to permit termination by you for Good Reason if Primal
offers 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 you
are participating on the effective date of this letter agreement.


 


If this arrangement is acceptable to you, please sign the enclosed copy
of 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