Separation Agreement and General Release of Claims
Exhibit
10.67
Severance
Benefit
In
return
for the execution of this Separation Agreement and General Release, I, Xxxxx
X.
Xxxxxxxx (referred to below as “I”, “me”, “my” or the “Employee”) will receive a
separation payment to which I am not otherwise entitled that is equal to
my
annual base salary in effect on the date hereof. My separation payment, less
applicable deductions, will be paid out in twenty-four (24) equal payments
over
twelve months, beginning January 15, 2007. In further return for my execution
of
this Separation Agreement and General Release, my stock option grants numbered
440, 522, 523, 630, 761, 824, 919, 907, and 920 that are vested on December
31,
2006, will remain exercisable until their original dates of
expiration and
I
will have the full term from the time of the grant in order to exercise all
vested awards (subject to termination based on the applicable plan provisions
other than those related to termination of employment).
This
Separation Agreement and Release of Claims will be effective on the later
date
of the signatures below.
In
consideration of the receipt of the Severance Benefit described above, I
agree
as follows:
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1.
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Company
Obligations
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Other
than as set forth in the attached letter, the Company shall have no other
financial obligations to me under any compensation or benefit plan, program
or
policy and my participation in the Company compensation and benefit plans,
programs and policies shall cease as of December 31, 2006, except that: (1)
I
shall have such right to continue group health plan coverage as is provided
under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) or a
comparable state law; and (2) this Separation Agreement and General Release
is
not intended to cover any claim for benefits to which I am entitled, if any,
under the Company’s 401(k) Plan.
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2.
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Cooperation
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From
time
to time the Company finds it necessary or advisable to contact former employees
to discuss matters about which they might have knowledge that are relevant
to
ongoing matters of the Company or otherwise related to their employment period.
Accordingly, I agree that I will cooperate in all reasonable respects and
generally make myself available to speak with Company employees and counsel,
give testimony, and provide assistance in connection with any matter that
relates to my employment period, including litigation, arbitration proceedings,
government hearings or investigations involving the Company, or any other
matter, provided that with regard to matters not involving litigation or
potential litigation, this provision shall not apply after one (1) year
from the date hereof. The Company will, to the extent feasible, use reasonable
business efforts to limit itself to telephonic and email inquiries of a total
of
four (4) or fewer hours per week during the initial three months of this
agreement and otherwise provide me with reasonable notice in the event my
assistance is required. In connection with any cooperation where the Company
requires me to be available in person, the Company will reimburse me for
my
reasonable travel, meal and lodging expenses. My entitlement to reimbursement
of
expenses pursuant to this paragraph 16 shall in no way affect other rights
I may
have to be indemnified and/or advanced expenses, provided that in no event
shall
there be any duplication of indemnification and/or expense reimbursement.
I will
not be entitled to any other compensation for cooperation, except as otherwise
provided under my Indemnification Agreement with the Company dated April
8,
2004.
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3.
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Release
of Claims
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A.
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In
exchange for the consideration described above, I agree to release
and
forever discharge the Company, its subsidiaries and affiliates
and their
parent organizations, predecessors, successors, officers, directors,
employees, agents, attorneys, associates, and employee benefit
plans from
all claims, demands or causes of action arising out of facts or
occurrences prior to the date of this Agreement, whether known
or unknown
to me, between the Company and me.
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B.
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I
agree that this release of claims is intended to be broadly construed
so
as to resolve any pending and potential disputes between the Company
and
me that I have up to the date of this Release, whether or not such
disputes are known or unknown to me, including, but not limited
to, claims
based on express or implied contract; any action arising in tort,
including, but not limited to, libel, slander, defamation, intentional
infliction of emotional distress, or negligence; any and all claims
for
wrongful discharge; and any and all claims based on the Age Discrimination
in Employment Act (42 U.S.C. § 621), Title VII of the Civil Rights act of
1964 as amended (42 U.S.C. § 2000e), the Equal Pay Act of 1963 (29 U.S.C.
§ 206(d)), the Civil Rights Acts of 1866 and 1871 (42 U.S.C. § 1981), the
Worker Adjustment and Retraining Notification Act (29 U.S.C. § 1651), the
Employee Retirement Income Security Act (29 U.S.C. § 1001), the Family and
Medical Leave Act (29 U.S.C. §2601), the Americans with Disabilities Act
(42 U.S.C. § 12,101), the Occupational Safety and Health Act (29 U.S.C. §
651), or any other federal, state or local statute prohibiting
discrimination on the basis of age, race, creed, color, religion,
national
origin, sex, disability, marital status or any other protected
classification which I have, or at any time had, including but
not limited
to all claims for attorneys fees..
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C.
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If
I breach or challenge the enforceability of this Agreement, I acknowledge
that I will reimburse the Company for any monetary consideration
previously received by me under this Agreement and agree to pay
reasonable
attorneys’ fees and costs incurred by the Company in collection and
enforcement of this Agreement; provided that this paragraph shall
have no
application to me with respect to a claim asserting that my separation
was
due to unlawful age discrimination in violation of the Age Discrimination
in Employment Act.
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4.
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Non-Admission
of Liability
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This
General Release shall not in any way be construed as an admission by the
Company
that it has acted wrongfully with respect to me or any other person, or that
I
have any rights whatsoever against the Company, and the Company specifically
denies any liability to or wrongful acts against me or any other person,
on the
part of itself, its employees and its agents.
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5.
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Additional
Understandings
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A. I
acknowledge and agree as follows:
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(1)
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The
payments and other benefits provided to me under this Agreement
exceed the
nature and scope of that to which I would otherwise have been entitled
to
receive from the Company and constitute adequate consideration
for my
promises herein;
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(2)
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I
agree that on or before my last work day with the Company, I will
return
to the Company all notes, reports, plans, keys, security cards
and/or
identification cards, charge cards, customer and investor lists,
computer
or other files, passwords, product information and other documents
and
property which were created, developed, generated or received by
me during
my employment or which are the property of the Company, whether
or not
such items are confidential to the
Company.
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(3)
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I
acknowledge that, before signing this Release, I was given a period
of at
least twenty-one (21) calendar days to consider this Release and
I waive
any right I might have to additional time beyond this twenty-one
(21) day
consideration period within which to consider this
Release;
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(4)
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I
have read and understand this Agreement in its entirety, including
the
waiver of rights under the Age Discrimination in Employment
Act;
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(5)
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I
have been advised by the Company to consult with an attorney before
signing this Agreement and this paragraph constitutes such advice
in
writing;
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(6)
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For
a period of seven (7) days following my execution of this Agreement,
I may
revoke this Agreement by notifying Xxxxxxxx Xxxxxxx, Columbia
Laboratories, Inc., 000 Xxxxxxxxxx Xxxxxxx, Xxxxxxxxxx, XX, and
it shall
not become effective or enforceable until the 7-day revocation
period has
expired;
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(7)
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I
enter into this Agreement knowingly and voluntarily, without duress
or
reservation of any kind, and after having given the matter full
and
careful consideration.
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B.
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Nothing
in this Agreement shall be construed to prohibit me from filing
any charge
or complaint with the Equal Employment Opportunity Commission (EEOC)
or
participating in any investigation or proceeding conducted by the
EEOC,
nor shall any provision of this Agreement adversely affect my right
to
engage in such conduct. Notwithstanding the foregoing, I intend
that the
Company shall have the right, to the full extent permitted by law,
to
enforce this Agreement and to pursue any and all legal or equitable
remedies against me in the event I violate this
Agreement.
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6.
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No
Representations
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I
represent and acknowledge that in executing this document, I do not rely
and
have not relied upon any representation or agreement not set forth in this
Separation Agreement and General Release with regard to its subject matter,
basis or effect.
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7.
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Severability
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The
provisions of this Separation Agreement and General Release are severable,
and
if any part is found to be unenforceable, the other paragraphs shall remain
fully valid and enforceable.
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8.
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Governing
Law
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This
Separation Agreement and General Release will be construed under the law
of the
State of New Jersey and, where applicable, under federal law.
PLEASE
READ CAREFULLY. THIS SEPARATION
AGREEMENT
AND
GENERAL RELEASE INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
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/S/
Xxxxx X. Xxxxxxxx
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12/11/06
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Signature:
Xxxxx X. Xxxxxxxx
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(Date)
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Columbia
Laboratories, Inc.
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/S/
Xxxxxx X. Xxxxx
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12/12/06
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Signature:
Xxxxxx X. Xxxxx
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(Date)
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