SEVERANCE AGREEMENT
Exhibit
10.1
THIS
SEVERANCE AGREEMENT (the “Agreement”), dated as of December 9, 2009, between
Xxxxxxx X. Xxxxxxxx, an individual (the “Executive”), and Xxxxx Corporation
(“Aceto”), a New York corporation, recites and provides as follows:
WHEREAS,
Executive served as the Chief Executive Officer and Chairman of the Board of
Directors of Aceto and/or its subsidiaries pursuant to an Employment Agreement
dated March 24, 2009 (the “Employment Agreement”); and
WHEREAS,
Executive and Aceto desire to terminate the Employment Agreement and for
Executive to retire from his employment and membership on the Board of Directors
of Aceto and/or of its subsidiaries; and,
WHEREAS,
Aceto and Executive have reached agreement on all matters relating to the
employment of Executive by Aceto, the termination of his Employment Agreement
and/or his retirement from employment and membership on the Board of Directors
of Aceto and/or subsidiaries; and,
WHEREAS,
Aceto and Executive desire to set forth all of the terms and conditions of their
agreement in this Agreement.
NOW,
THEREFORE, based upon their mutual promises and other good and valuable
consideration, Aceto and Executive agree as follows:
1. RESIGNATION:
Executive hereby irrevocably and voluntarily resigns for the purposes of
retirement from his position as Chairman and Chief Executive Officer of Aceto
and from the Board of Directors of Aceto and all of its subsidiaries or
affiliates as of the Effective Date of this Agreement as defined
below. In connection with Executive’s resignation and as of the
Effective Date of this Agreement:
a. NO
DUTIES. As of November 20, 2009 Executive had and shall have no
further obligation or authority to perform duties and functions on behalf of
Aceto and/or its subsidiaries or affiliates and shall refrain from performing
such duties or functions.
b. COOPERATION. Anything
to the contrary in this Agreement notwithstanding, Executive may and must
cooperate with Aceto to and including March 23, 2012 and thereafter as necessary
for business, including legal, matters when requested by the then President,
Chief Executive Officer and/or Chairperson of the Board. If such
cooperation is required, the Company shall compensate him at the rate of $250.00
per hour. The Company shall reimburse him for any approved,
reasonable expenses incurred by Executive as a result of his
cooperation. Executive will take all steps requested by Aceto to
remove him immediately as director, officer or employee of any Aceto-Related
Party, as defined below, and Aceto will take all necessary actions to effectuate
such removal.
c. NO
CONTACT. Except outside the work environment, Executive shall have no
contact with customers, suppliers, Aceto-Related Parties
and current employees of Aceto and Aceto-Related Parties,
except in connection with Executive’s
benefits, compensation, administrative matters or as requested by the
Chairman of the Board of Aceto. With respect to customers and
suppliers of Aceto and Aceto-Related Parties, Executive will not discuss Aceto,
Aceto-Related Parties and those entities respective businesses or
operations.
2. SEVERANCE
COMPENSATION. In consideration of Executive’s undertakings contained
in this Agreement, Aceto shall:
a. Pay
Executive, as soon as practical after the Effective Date of this Agreement, any
accrued base salary and expense reimbursement under Paragraph 2(b) of the
Employment Agreement and remaining unpaid as of the Effective Date of this
Agreement. Any expense reimbursements are subject to Xxxxx’x
practices regarding reimbursements and must be submitted with receipts within
thirty (30) days of the Effective Date of this Agreement to Xx. Xxxxxxxx and
approved in accordance with Xxxxx’x practices before they will be
paid;
b. Pay
Executive the pro-rated amount of Four Hundred Forty-Six Thousand One Hundred
Ninety Dollars ($446,190) per year in equal installments, on a biweekly basis,
commencing on Xxxxx’x first regular pay-period after the Effective Date of this
Agreement, through March 23, 2012. The first and final payment may be
unequal amounts to account for the pro-ration of the Four Hundred Forty-Six
Thousand One Hundred Ninety Dollars ($446,190): Payments under this
Paragraph 2(b) shall cease in the event that Executive materially breaches this
Agreement.
| i. |
In
the event that Executive materially violates the terms of this Agreement,
Aceto shall have no obligation to make further payments as of the date of
such employment, except base pay accrued prior to his
resignation.
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| ii. |
In
the event that Executive obtains work with a person or entity that
competes with Aceto or an Aceto-Related Party but does not breach this
Agreement, payment under Paragraph 2(b) shall be reduced by the
compensation Executive receives for such employment.
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| iii. |
In
the event Aceto does not learn of the employment identified in Paragraph
2(b)(ii) until after it has made a payment or payments pursuant to this
Paragraph 2(b), Executive shall return any compensation to which he was
not entitled under Paragraph 2(b)(ii) of this
Agreement.
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c. Pay
Executive one million and one dollars ($1,000,001.00) less any legally required
deductions by wire transfer by the close of business on the eighth (8th) day
after the execution of this Agreement, provided Executive complies with the
terms of this Agreement and has not revoked or materially breached
it. The payment made under this Paragraph 2(c) is in consideration
for Executive’s obligations under this Agreement and is not related to prior
services rendered by Executive.
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d. Provide
Executive with the following benefits through March 23, 2012, to the extent
permitted under the particular plan and/or applicable law and in accordance and
under the terms then existing and in effect for all executive employees of Aceto
under the particular plan and/or applicable law:
| i. |
Medical
Insurance, including dental, equivalent to that provided to active
employees at Aceto will be provided to Executive, provided Executive
timely remits the employee share of the premiums, provided, however, that
in the event that Executive obtains medical insurance acceptable to him,
for which Aceto will reimburse Executive up to $29,000 for the cost of
such insurance through March 23, 2012 and Aceto shall have no further
obligation to provide medical insurance coverage;
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| ii. |
Life
Insurance;
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| iii. |
Contributions
to his Supplemental Executive Retirement Plan prorated through the end of
March 23, 2012;
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iv.
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401(k)
contributions in accordance with the applicable 401(k) plan prorated
through the end of the March 23, 2012;
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x.
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Xxxxx
will facilitate Executive’s 401(k) rollover and the Executive’s prompt
receipt of funds from his Supplemental Executive Retirement Plan in
accordance with the applicable law.
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vi.
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In
the event that Executive is not eligible or becomes ineligible to
participate in the benefits set out in Paragraphs 2(d)(iii) and (iv) of
this Agreement, Aceto will pay the cash equivalent annually, when normally
paid to employees.
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x. Xxxxx
agrees to cooperate with Executive and to reasonably assist him in responding to
any claim made by the New York Department of Revenue and Taxation during the
term of this Agreement. Aceto shall withhold from any amounts payable under this
Agreement (such as federal, state or local taxes and contributions for benefits)
as may be required to be withheld pursuant to any applicable law or regulation
or benefit plan or program in which Executive participates under this Agreement,
as well as any sums due from Executive to Aceto.
x. Xxxxx
shall make a contribution of $10,000.00 to the Xxxxxx Torah Foundation, within
10 days of execution of this Agreement.
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3. RELEASES.
a. In
consideration of Xxxxx’x undertakings contained in this Agreement, Executive
shall execute the Release contemporaneous with execution of Agreement, which is
attached hereto as Exhibit A and expressly incorporated into this
Agreement.
b. In
consideration of Executive’s undertakings contained in the Severance Agreement
to which Aceto is not otherwise entitled, Aceto releases Executive from, and
promises and agrees not to xxx Executive for or in respect of, any and all
claims, charges, complaints, liabilities, obligations, promises, agreements,
damages, actions and expenses (including attorney’s fees and costs) of any
nature whatsoever, known or unknown, which Aceto now has or claims to have
against Executive from the beginning of time to the date of this Agreement,
provided, however, that this release shall not bar or waive any claims arising
out of any shareholder or derivative actions against Executive or for business
related willful misconduct, intentional misconduct or criminal
conduct.
4. NO
BENEFITS NOT SET OUT IN THIS AGREEMENT. No salary, benefits, vacation
pay, sick pay or other payments or additional monies beyond the sums identified
in Paragraph 2 of this Agreement will be made by Aceto to Executive or on
Executive’s behalf and the parties agree that no salary, benefits, or other
payments beyond the sums identified in Paragraph 2(a) are owing.
5. NO
DISPARAGEMENT.
a. In
consideration of Xxxxx’x undertakings contained in this Agreement to which
Executive is not otherwise entitled, Executive agrees that he and his agents,
family and/or representatives shall refrain from (i) all conduct, verbal or
otherwise, which would materially damage the reputation, goodwill or
standing in the community of Aceto, its affiliates, subsidiaries, divisions,
agents and related parties and their respective principals, owners (direct or
indirect), members, directors, officers, agents, servants, employees, parties,
attorneys and other professionals, successors and assigns (collectively, the
“Aceto Related Parties”) and (ii) referring to or in any way commenting on Aceto
and/or any of the other Aceto Related Parties in or through the general media or
any public domain (including without limitation, internet websites, blogs, chat
rooms and the like), which would materially damage, the reputation, goodwill or
standing in the community of Aceto and/or any of the other Aceto Related
Parties.
b. In
consideration of Executive’s undertakings contained in this Agreement to which
Aceto is not otherwise entitled, Aceto and Aceto Related
Parties agree that they shall refrain from (i) all conduct, verbal or
otherwise, which materially damage the reputation, goodwill or standing in the
community of Executive and (ii) referring to or in any way commenting on
Executive in or through the general media or any public domain (including
without limitation, internet websites, blogs, chat rooms and the like), would
materially damage, the reputation, goodwill or standing in the community of
Executive.
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6. TERMS ARE
CONFIDENTIAL. Until such time as Aceto is required to disclose the
existence and terms of this Agreement, Executive shall keep the terms and
conditions of this Agreement strictly confidential. Executive hereby
agrees not to disclose the existence of this Agreement or any of the terms of
this Agreement (including without limitation the amounts referred to in
Paragraph 2) to any person, including without limitation, any current or former
employee of or applicant for employment with Aceto and/or any of the other Aceto
Related Parties, with the exception of Executive’s attorney, accountant, tax
preparer or spouse or as compelled by legal process, provided Executive’s
attorneys, accountants, tax preparers, or spouses, are informed of this
provision requiring confidentiality and such person agrees to be bound by its
terms.
7. RETURN OF
COMPANY PROPERTY. All documents, records, data, equipment (including,
without limitation: any computer or computers; any electronic storage device;
computer hard drives; flash drives; discs and the like), Aceto charge or credit
cards, any Aceto electronic communication devices (including cellular
telephones, BlackBerry®, PDA and the like) and other physical property, whether
or not pertaining to Confidential Information, which were furnished to Executive
by Aceto or were procured by Executive in connection with Executive’s services
to Aceto and/or is subsidiaries or affiliates will be and remain the sole
property of Aceto. Executive will return to Aceto forthwith all such materials
and property except as provided in Paragraph 8 of this Agreement, .
8. RETURN OF
COMPANY CARS. Aceto shall continue to provide Executive with one
Aceto-provided car through current expiration of the lease on the Aceto provided
car in or about July 2010. Aceto shall provide for the registration,
maintenance and insurance of the vehicle until lease expiration. At
that time the lease expires, Aceto shall purchase the car and transfer its title
to Executive, at which time Executive shall be solely responsible for the car
and its registration, maintenance and insurance and Aceto shall have no other
obligations related to the car. Executive shall be responsible for
any excess charges due on the lease at the time of its expiration.
9. STOCK
SHARES AND OPTIONS.
a. Executive’s
stock options and restricted shares in Aceto and/or its subsidiaries and
affiliates (“Options” and “Restricted Shares”, respectively) will be guided by
the plans or other vehicles that granted them to him and shall vest according to
their respective terms.
b. Executive’s
ability to exercise all stock options issued to him shall be extended
for a period of two years after the Effective Date of this Agreement, provided
such extension is permitted under the plan and applicable
law. Executive’s ability to exercise any other stock options shall
guided by the plans or other vehicles that granted them to him.
x. Xxxxx
represents that it will remove all of the restrictions pertaining to all of
Executive’s restricted stock as follows: 6,666 shares on December 6, 2009,
10,001 shares upon resignation of Executive from all positions with Aceto and
Aceto-related entities and that Aceto will facilitate Executive’s receipt of a
certificate for such shares.
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10. CONFIDENTIAL
INFORMATION.
a. “Confidential
Information” means any information concerning or referring in any way to the
business of Aceto and/or its subsidiaries and affiliates disclosed to or
acquired by the Executive through or as a consequence of the Executive’s
affiliation as an employee of Aceto and/or member of its and/or its subsidiaries
or affiliates. For purposes of this Agreement, Confidential Information consists
of information proprietary to Aceto and/or its subsidiaries and affiliates which
is not generally known to the public and which in the ordinary course of
business is maintained by Aceto and/or its subsidiaries and affiliates as
confidential. By way of example and without limitation, Confidential Information
consists of computer software, trade secrets, patents, inventions, copyrights,
techniques, designs, and other technical information in any way concerning or
referring to scientific, technical or mechanical aspects of Xxxxx’x and/or its
subsidiaries’ and affiliates’ products, concepts, processes, machines,
engineering, research and development. Confidential Information also includes,
without limitation, information in any way concerning or referring to Xxxxx’x
and/or its subsidiaries’ and affiliates’ business methods, business plans,
forecasts and projections, operations, organizational structure, finances,
customers, funding, pricing, costing, marketing, purchasing, merchandising,
sales, products, product information, suppliers, customers, employees or their
compensation, data processing, software and all other information designated by
Aceto and/or its subsidiaries and affiliates as “confidential.” Confidential
Information shall not include any information or material that is or becomes
generally available to the public other than as a result of a wrongful
disclosure by (a) a person otherwise bound to the provisions hereof, or (b) any
person bound by a duty of confidentiality or similar duty owed to Aceto and/or
its subsidiaries and affiliates.
b. DUTY OF
CONFIDENTIALITY. Executive will maintain in confidence and will not, directly or
indirectly, disclose or use (or allow others to disclose or use) any
Confidential Information belonging to Aceto and/or its subsidiaries and
affiliates, whether in oral, written, electronic or permanent form, except as
directed in writing by the Board of Directors of Aceto and/or its subsidiaries
or affiliates.
c. Executive
shall deliver forthwith to Aceto and/or its subsidiaries and affiliates as the
case may be all original Confidential Information (and all copies thereof) in
Executive’s possession or control belonging to Aceto and/or its subsidiaries and
affiliates and all tangible items embodying or containing Confidential
Information.
d. This
Agreement supersedes any previous Confidentiality and Non-Disclosure Agreement
between the Executive and Aceto and/or its subsidiaries and
affiliates.
e. INJUNCTIVE
RELIEF. Executive acknowledges that a violation or attempted violation on
Executive’s part of any agreement in this Paragraph 10 will cause irreparable
damage to Aceto and/or its subsidiaries and affiliates, and accordingly,
Executive agrees that Aceto and/or its subsidiaries and affiliates as the case
may be shall be entitled as a manner of right to an injunction from any court of
competent jurisdiction restraining any violation or further violation of such
agreement by Executive without the obligation of posting a bond; such right to
an injunction, however, shall be cumulative and in addition to whatever other
remedies that Aceto and/or its subsidiaries and affiliates may
have. The existence of any claim of Executive, whether predicated on
this Agreement or otherwise, shall not constitute a defense to the enforcement
by Aceto of the covenants contained in this Agreement.
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f. ASSIGNMENT
OF RIGHTS. Executive has disclosed to Aceto any and all designs, intellectual
property, software, inventions, discoveries, or improvements (individually and
collectively, "Inventions") made by Executive as a result or product of his
employment relationship with Aceto and/or its subsidiaries and affiliates.
Executive hereby assigns to Aceto or its relevant subsidiary or affiliate
without additional compensation the entire worldwide right, title and interest
in and to any such Inventions (whether disclosed or not), and related
intellectual property rights and without limitation all copyrights, copyright
renewals or reversions, trademarks, trade names, trade dress rights, industrial
design, industrial model, inventions, priority rights, patent rights, patent
applications, patents, design patents and any other rights or protections in
connection therewith or related thereto, for exploitation in any form or medium,
of any kind or nature whatsoever, whether now known or hereafter devised. To the
extent that any work created by Executive can be a work for hire pursuant to
U.S. Copyright Law, the parties deem such work a work for hire and Executive
should be considered the author thereof. Executive shall, at the request of
Aceto, or its relevant subsidiary or affiliate without additional compensation
execute, acknowledge and deliver to Aceto or its relevant subsidiary or
affiliate such instruments and documents as Aceto or its relevant subsidiary or
affiliate may require to perfect, transfer and vest in Aceto or its relevant
subsidiary or affiliate the entire right, title and interest in and to such
inventions. In the event that Executive does not timely perform such
obligations, Executive hereby makes Aceto or its relevant subsidiary or
affiliate and its officers his attorney-in-fact and gives them the power of
attorney to perform such obligations and to execute such documents on
Executive’s behalf. Executive shall cooperate with Aceto or its relevant
subsidiary or affiliate upon Xxxxx’x or its relevant subsidiary’s or affiliate’s
request and at Xxxxx’x or its relevant subsidiary’s or affiliate’s cost but
without additional compensation in the preparation and prosecution of patent,
trademark, industrial design and model, and copyright applications worldwide for
protection of rights to any Inventions.
11. NON-COMPETE;
NON-SOLICITATION.
a. NON-COMPETE.
For a period commencing on the Effective Date of this Agreement and ending March
23, 2013 (the "Non-Competition Period"), Executive shall not, directly or
indirectly, either for himself or any other person, own, manage, control,
materially participate in, invest in, permit his name to be used by, act as
consultant or advisor to, render material services for (alone or in association
with any person, firm, corporation or other business organization) or otherwise
assist in any manner any business which is a competitor of Aceto and/or its
subsidiaries or affiliates (collectively, a "Competitor"). Nothing herein shall
prohibit Executive from being a passive owner of not more than five percent (5%)
of the equity securities of a Competitor which is publicly traded, so long as he
has no active participation in the business of such Competitor.
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b. NON-SOLICITATION.
During the Non-Competition Period identified in Paragraph 11(a) above, Executive
shall not, directly or indirectly, (i) induce or attempt to induce or aid others
in inducing anyone working at Aceto or its subsidiaries or affiliates to cease
working at Aceto or its subsidiaries or affiliates, or in any way interfere with
the relationship between Aceto or its subsidiaries or affiliates and anyone
working at Aceto or its subsidiaries or affiliates except in the proper exercise
of Executive’s authority or (ii) in any way interfere with the relationship
between Aceto or its subsidiaries or affiliates and any customer, supplier,
licensee or other business relation of Aceto or its subsidiaries or
affiliates.
c. SCOPE.
If, at the time of enforcement of this Paragraph 11, a court shall hold that the
duration, scope, area or other restrictions stated herein are unreasonable under
circumstances then existing, the parties agree that the maximum duration, scope,
area or other restrictions reasonable under such circumstances shall be
substituted for the stated duration, scope, area or other
restrictions.
d. INDEPENDENT
AGREEMENT. The existence of any claim or cause of action of Executive against
Aceto or any of its subsidiaries or affiliates, whether or not predicated upon
the terms of this Agreement, shall not constitute a defense to the enforcement
of these covenants.
e. INJUNCTIVE
RELIEF. Executive acknowledges that a violation or attempted violation on
Executive’s part of any agreement in this Paragraph 11 will cause irreparable
damage to Aceto and/or its subsidiaries or affiliates, and accordingly,
Executive agrees that Aceto and/or its subsidiaries or affiliates shall be
entitled as a manner of right to an injunction from any court of competent
jurisdiction restraining any violation or further violation of such agreement by
Executive without the obligation of posting a bond; such right to an injunction,
however, shall be cumulative and in addition to whatever other remedies that
Aceto and/or its subsidiaries or affiliates may have. The existence of any claim
of Executive, whether predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by Aceto and/or its subsidiaries or
affiliates of the covenants contained in this Agreement.
12. ARBITRATION: No
dispute between one or more Aceto Related Parties and Executive, shall be the
subject of a lawsuit filed in state or federal court. Instead, any such dispute
shall be submitted to binding arbitration before the American Arbitration
Association (“AAA”) or, if Aceto and Executive agree in a separate writing, an
other individual or organization or an individual or organization that a court
appoints. Notwithstanding the above, either Aceto or Executive may file with an
appropriate state or federal court a claim for injunctive relief in any case
where the filing party seeks provisional injunctive relief or where permanent
injunctive relief is not available in arbitration. The filing of a claim for
injunctive relief in state or federal court shall not allow either party to
raise any other claim outside of arbitration. It is understood that both sides
are hereby waiving the right to a jury trial.
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a. The
arbitration shall be initiated in Nassau County, New York and shall be
administered by AAA under its commercial arbitration rules before a single
arbitrator that shall be mutually agreed upon by the parties hereto. If the
parties cannot agree on a single arbitrator, then an arbitrator shall be
selected in accordance with the rules of AAA. The arbitration must be filed
within one (1) year of the act or omission which gives rise to the claim. Each
party shall be entitled to take one deposition, and to take any other discovery
as is permitted by the Arbitrator. In determining the extent of discovery, the
Arbitrator shall exercise discretion, but shall consider the expense of the
desired discovery and the importance of the discovery to a just
adjudication.
b. The
Arbitrator shall render an award that conforms to the facts, as supported by
competent evidence (except that the Arbitrator may accept written declarations
under penalty of perjury, in addition to live testimony), and the law as it
would be applied by a court sitting in the State of New York. The cost of
arbitration shall be advanced equally by the parties. Any party may apply to a
court of competent jurisdiction for entry of judgment on the arbitration
award.
c. PRIOR
AGREEMENTS SUPERSEDED. This Agreement supersedes all previous
Agreements between the Executive and Aceto, including the Employment
Agreement. To the extent that there is any conflict between this
Agreement and any earlier agreement between Aceto and Executive, this Agreement
governs.
13. SUCCESSORS.
a. This
Agreement is personal to Executive and shall not be assignable by Executive. In
the event of Executive’s death on or before March 23, 2012 and in the absence of
his earlier material breach of this Agreement, any payment or benefit due shall
inure to Executive’s estate or beneficiary, as applicable.
b. This
Agreement shall inure to the benefit of Aceto and its successors and assigns.
Aceto may assign this Agreement to any successor or affiliated entity,
subsidiary, sibling, or parent company, provided that such assignee is
financially qualified to fulfill obligations hereunder and in the event of such
assignment, Aceto agrees to guarantee all obligations hereunder.
c. In the
event of Change of Control (as defined hereafter), this Agreement shall continue
to be binding on all parties. For purposes of this Agreement, “Change
of Control” shall mean the event when any entity, or affiliated or related
entity, acquires 20% or more of Aceto stock.
14. MISCELLANEOUS
a. Executive
shall notify Aceto of any and all employment or other compensated work he
obtains during the period October 21, 2009 through and including March 23, 2012
with a person or entity that competes with Aceto or an Aceto-Related Party but
does not breach this Agreement. Such notice shall identify the name
and address of the employer or person or entity that provides the compensation
for the work involved, Executive’s title, duties and responsibilities, and fully
identify all compensation that Executive is to receive in connection with the
work or employment.
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b. This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York, without reference to the 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 contains the full and complete
understanding between the parties hereto and supersedes all prior
understandings, whether written or oral pertaining to the subject matter hereof.
This Agreement may not be amended or modified otherwise than by written
agreement executed by Executive and by the designated representative of the
Board.
c. 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, reputable overnight courier (such as
Federal Express or UPS), or by facsimile, or by e-mail, or by hand delivery to
such address as either party shall have furnished to the other in writing in
accordance herewith. Notice may be given to Aceto or Executive as
follows:
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For
Aceto:
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For
Executive:
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Xx.
Xxxxxx X. Xxxxxxxx
Aceto
Corporation
Xxx
Xxxxxx Xxxx
Xxxx
Xxxxxxx, XX 00000-0000
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c/o
Xxxxx X. Xxxxxxxx
Law
Offices of Xxxxx X. Xxxxxxxx LLC
000
Xxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx, XX 00000
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With
a Copy to:
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Xxxxxx
X. Xxxxxx
Xxxxxxx
Xxxx & XxXxxxx, LLP
000
Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxx
Xxxx, Xxx Xxxx 00000
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d. The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this
Agreement.
e. The
failure of either party to insist upon strict compliance with any provision of
this Agreement, or the failure to assert any right either party may have
hereunder, shall not be deemed to be a waiver of such provision or right or any
other provision or right of this Agreement.
f. This
Agreement shall become effective on the seventh (7th) day after the Executive
executes the General Release attached as Exhibit “A” to this Agreement, provided
the Executive does not exercise his right to revoke the General Release
(“Effective Date”).
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IN WITNESS WHEREOF, Executive
has hereunto set Executive’s hand and, pursuant to the authorization from its
Board of Directors, Aceto has caused these presents to be executed in its name
on its behalf, all as of the day and year first above written.
| ACETO
CORPORATION, a New York Corporation |
EXECUTIVE | ||||
| By: |
/s/
Xxxxxx X. Xxxxxxxx
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/s/
Xxxxxxx X. Xxxxxxxx
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XXXXXX
X. XXXXXXXX
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XXXXXXX
X. XXXXXXXX
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RELEASE
THIS
Release dated as of December 9, 2009, between Xxxxxxx X. Xxxxxxxx, an individual
(the “Executive”), and Aceto Corporation (“Aceto”), a New York corporation,
recites and provides as follows:
WHEREAS,
Executive serves or served as the Chief Executive Officer and Chairman of the
Board of Directors of Aceto and/or its subsidiaries pursuant to an Employment
Agreement dated March 24, 2009 (the “Employment Agreement”); and
WHEREAS,
Executive and Aceto desire to terminate the Employment Agreement and Executive
has resigned his employment and membership on the Board of Directors of Aceto
and/or of its subsidiaries; and,
WHEREAS,
Aceto and Executive have reached agreement on all matters relating to the
employment of Executive by Aceto, the termination of his Employment Agreement
and his retirement from employment and membership on the Board of Directors of
Aceto and/or subsidiaries; and,
WHEREAS,
Aceto and Executive have set the terms and conditions of their agreement in the
Severance Agreement dated December 9, 2009 (“Severance Agreement”) to which this
Release is Exhibit “A”; and,
WHEREAS,
the Severance Agreement obligates Executive to execute this
Release;
NOW,
THEREFORE, based upon their mutual promises and other good and valuable
consideration contained in the Severance Agreement, Executive agrees as
follows:
1. In
consideration of Xxxxx’x undertakings contained in the Severance Agreement to
which Executive is not otherwise entitled, Executive releases Aceto, its
affiliates, subsidiaries, divisions, agents and related parties and their
respective principals, owners (direct or indirect), members, directors,
officers, agents, servants, employees, parties, attorneys and other
professionals, successors and assigns (collectively, the “Aceto Related
Parties”) from, and promises not to xxx Xxxxx and/or any of the other Aceto
Related Parties for or in respect of, any and all claims, charges, complaints,
liabilities, obligations, promises, agreements, damages, actions and expenses
(including attorney’s fees and costs) of any nature whatsoever, known or
unknown, which Executive now has or claims to have against Aceto and/or any of
the other Aceto Related Parties jointly, severally or singly from the beginning
of time to the date of this Agreement, including, without limitation, claims
relating to Executive’s employment with Aceto or the termination of his
employment; claims based in contract, tort, constitutional, statutory or common
law, and claims under any federal, state, or local statute, order, law or
regulation, governing terms or conditions of employment, including but not
limited to wages, benefits or discrimination in employment on the basis of any
protected characteristic. This release applies to rights and claims
arising under the Age Discrimination in Employment Act of 1967 (29 U.S.C. §§621,
et
seq.). This release does not release Aceto or Aceto-Related
Parties from obligations under the Severance Agreement.
1
2. Notwithstanding
Paragraph 1 of this Release, Executive may bring a claim for breach of the
Severance Agreement . If any claim covered in Paragraph 1 of this
Release, other than for a breach of the Severance Agreement or to enforce his
rights under the Severance Agreement, is brought by Executive, to the greatest
extent permitted by applicable law, Aceto and/or the other Aceto Related Parties
shall be entitled to its and/or their attorney’s fees and costs upon prevailing
on such claim.
3. Executive
acknowledges the following:
a. He has
read and understands this Release and the Severance Agreement;
b. Before
executing this Release and the Severance Agreement he has been offered at least
forty-five (45) days to consider his rights and obligations under this Release
and the Severance Agreement;
c. The
period of time he has to consider his rights and obligations under this Release
and the Severance Agreement is reasonable;
d. Before
executing this Release and the Severance Agreement, Aceto advised him in writing
to consult with an attorney;
e. He has
knowingly and voluntarily elected to enter into this Release and the Severance
Agreement and releases Aceto from any and all claims, subject to the stated
limitations in this Release, in exchange for valuable consideration which is in
addition to anything of value to which he is already entitled;
f. The
Release constitutes a waiver of all rights and claims he may have under the Age
Discrimination in Employment Act of 1967 (29 U.S.C. §§621, et seq.);
g. This
Release does not waive any rights or claims by Executive that may arise after
this Release is finally accepted and executed; and,
h. For a
period of seven (7) days following the execution of this Release and the
Severance Agreement, Executive may revoke this Release and the Severance
Agreement by sending written notice of same to Aceto, addressed to Xx. Xxxxxx X.
Xxxxxxxx, Xxx Xxxxxx Xxxx, Xxxx Xxxxxxx, XX 00000-0000. For the
revocation to be effective, Aceto must receive the written notice by not later
than the close of business on the seventh day after Executive signs this
Release. This Release shall not become effective or enforceable until
this seven (7) day revocation period has expired without Executive having
exercised his right to revoke.
2
| ACETO
CORPORATION, a New York Corporation |
EXECUTIVE | ||||
| By: |
/s/
Xxxxxx X. Xxxxxxxx
|
/s/
Xxxxxxx X. Xxxxxxxx
|
|||
|
XXXXXX
X. XXXXXXXX
|
XXXXXXX
X. XXXXXXXX
|
||||
On the
9th day of December in the year 2009 before me, the undersigned, personally
appeared Xxxxxx X. Xxxxxxxx, personally known to me or proved to me on the basis
of satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
capacity and with the authority of Xxxxx Corporation, and that by his signature
on the instrument, the corporation upon which the individual acted executed the
instrument.
|
|
||
|
Notary
Signature
|
On the
9th day of December in the year 2009 before me, the undersigned, personally
appeared Xxxxxxx X. Xxxxxxxx, personally known to me or proved to me on the
basis of satisfactory evidence to be the individual whose name is subscribed to
the within instrument and acknowledged to me that he executed the same in his
capacity, and that by his signature on the instrument the individual executed
the instrument.
|
|
||
|
Notary
Signature
|
3
