EX 10.28
EMPLOYMENT TERMINATION, RELEASE AND
COOPERATION AGREEMENT
Virbac Corporation ("the Company") and Xxxxxx Xxxx ("Employee") agree that
the following sets forth their full and complete agreement and understanding
regarding the termination of the Employee's employment with the Company:
1. As used in this Agreement the following terms shall have the following
meanings.
a) Securities Litigation shall mean the presently pending suits filed
against the Company or the Company and Employee alleging violation of any law
pertaining to securities together with any amendment, refiling or new complaint
or other filing asserting claims based on the same or similar facts. Securities
Litigation shall also include any potential investigation/litigation by the
Securities and Exchange Commission or other governmental body regarding
activities of the Company during the time that Employee was employed by Company
and relating to alleged violation of securities laws.
b) Competitor shall mean any of the companies listed on Exhibit A hereto
together with their parents, subsidiaries and affiliates.
c) Customer or Business Partner shall mean any of the companies listed on
Exhibit B hereto together with their parents, subsidiaries and affiliates.
d) Fully Cooperate / Full Cooperation shall mean for Employee to make
himself available at reasonable times and places for interviews, consultations
and/or testimony during which he will provide to the Company, or its designated
attorneys or agents, any and all information known to him regarding or relating
to the Company or his activities on behalf of the Company in regard to the
subject matter on which cooperation is sought, as well as provide any and all
documents or electronically stored information available to him relating to such
subjects.
e) Confidential Information shall mean any and all information not in the
public domain, in any form, possessed by, used by, under the control of, or
otherwise relating to the Company and treated as confidential by the Company
including but not limited to, any technical or non-technical information, plans
designs, drawings, processes, systems, procedures, formulae, biological
materials, laboratory notebooks, test data, know-how, improvements, inventions,
products, client or customer lists, marketing plans, financial information, or
any other compilation of information relating to the Company's business which
has come into the Employee's possession by virtue of his employment with
Company. Confidential Information shall also include any information not in the
public domain owned by another company or person and entrusted to Company in the
courts of business or research.
2. The Company and the Employee agree that the Employee's employment with
the Company was terminated effective January 27, 2004, and that the Employee
resigned effective that date from any and all positions as an employee or
director held by him with the Company, its subsidiaries, parents and affiliates.
Employee understands and agrees that from and after January 27, 2004 he shall
have no power or authority to bind the Company to any obligations with third
parties or other employees of the Company.
3. In exchange for Employee's resignation, his release of all claims
against the Company and the other promises made by Employee in this Agreement,
the Company shall:
a) Pay to Employee an amount equal to five months of Employee's base
salary in effect as of January 27, 2004. This amount shall be paid to Employee
in equal installments on regularly scheduled payroll dates between January 27,
2004 and November 30, 2004 (the "Severance Period"); provided that no payments
shall be made until after the Revocation Period provided in paragraph 18 shall
have elapsed without Employee revoking this Agreement. All amounts paid shall be
subject to normal and required withholdings;
b) Allow Employee to continue Employee's health insurance (including
Executive Care Plan) during the Severance Period upon the same terms and
conditions as were in effect at the date of Employee's termination, or upon such
terms as may be amended during the Severance Period to apply to all other
participants in the same health plan(s) during such time; and
c) Advance to Employee certain reasonable attorneys fees and expenses as
is more fully described in paragraph 11 of this Agreement.
It is understood and agreed that any period of group health care
continuation of coverage required under 29 U.S.C. Sections 1161-1169 shall
commence as of the end of the Severance Period and not the date of the
Employee's resignation.
4. Employee agrees that during the Severance Period he shall Fully
Cooperate with the Company in regard to all matters relating to the transfer of
his responsibilities and knowledge regarding the Company and its activities to
other employees, consultants or agents of the company.
5. Employee agrees that he shall Fully Cooperate with the Company in
regard to any internal investigation, SEC investigation or Securities Litigation
for so long as any such matters shall be pending. Employee further agrees that
he will not voluntarily provide any statement or other assistance to a party to
a dispute or litigation with the Company, other than the Company, without the
prior written consent of the Company. Employee also agrees that if he is ever
subpoenaed or otherwise required by law to provide any statement or other
assistance to a party to a dispute or litigation with the Company, other than
the Company, then he will provide written notice of the circumstances requiring
such statement or other assistance, including where applicable a copy of the
subpoena or other legal writ, in such a manner and at such a time that allows
the Company to respond. Nothing herein shall prevent the Employee from
cooperating
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with co-defendants in litigation or with inquiry from the government without a
need to obtain prior consent or approval from the company; however, the Employee
shall provide prompt notice of any voluntary giving of oral or written
statements to such parties, and provide to the Company a copy of any written
statement so given or a summary of any oral statement provided.
6. Company shall reimburse Employee for reasonable and necessary
out-of-pocket expenses incurred by Employee in fulfilling his obligations under
paragraphs 4 and 5 hereof. Company shall also reimburse Employee for legal
expense not to exceed $5,000 incurred in reviewing and drafting changes to this
Agreement, but not for consultation between Employee and his counsel.
7. Employee agrees that he will not, without the prior written permission
of the Company, become employed by, or otherwise provide services as an
employee, consultant, owner, volunteer or other capacity to any Customer or
Business Partner listed on Exhibit B hereto during the Severance Period, nor for
any Competitor listed on Exhibit A for a period of one year following the
termination of his Employment. Such restrictions shall be removed at the sole
discretion of the Board.
8. Employee agrees that he shall not use any Confidential Information for
the benefit of himself or others without the prior written consent of the
Company for so long as such information has not entered the public domain. In
the event Employee is called upon to divulge confidential information in the
course of the Securities Litigation or other judicial or regulatory proceeding,
Employee shall provide the Company with as much notice of the need or
possibility of the need to divulge Confidential Information as is practicable
under the circumstances. However, nothing herein shall be interpreted to impose
or imply a limitation upon Employee's ability to provide truthful testimony in
the course of any judicial or regulatory proceeding or investigation.
9. Employee agrees that, for a period of one (1) year following the
termination of his employment, he shall not on his own behalf or on behalf of
any other person, firm or entity, solicit or cause to be solicited any employee
of the Company for employment. Employee understands that this restriction
precludes him from making available the names, phone numbers or backgrounds of
persons currently employed by the Company or lists thereof to any person for the
purpose of solicitation.
10. Employee agrees not to make any unfavorable, derogatory or disparaging
comments about the Company, its parents, subsidiaries, affiliates, managers,
directors, supervisors, operations, policies, or products. Employee further
agrees that he will not provoke, xxxxxx or encourage any acts of ill will on the
part of the Company's other employees. Nothing in this paragraph 10 shall be
deemed to limit or imply any limitation upon the Employee's offering of truthful
testimony in any judicial or regulatory proceeding or investigation.
11. As further consideration of the promises made by Employee in this
Agreement, the Company shall continue to advance to Employee reasonable
attorneys
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fees and reasonable expenses incurred by Employee in regard to the Securities
Litigation. Such obligation of the Company shall continue unless and until the
Board of Directors of the Company shall determine in its sole discretion that
Employee did not act in good faith or in a manner reasonably believed by him to
be in or not opposed to the best interests of the Company. In the event the
Board ultimately determines that Employee is not entitled to be indemnified by
the Company, the Employee shall promptly repay to the Company any amounts
previously advanced under this paragraph.
12. Employee, on behalf of himself and on behalf of his heirs, executors,
administrators, personal representatives, successors and assigns does hereby
irrevocably release, acquit, exonerate and forever discharge Company and each of
its affiliates, subsidiaries, successors, predecessors, assigns, trustees,
officers, directors, stockholders, agents, attorneys, servants, representatives,
employees and any employment benefit plans (including the trustees, fiduciaries
and committee members of such plans) (hereinafter individually and collectively
sometimes called "RELEASEES"), of and from all and every manner of action and
actions, cause and causes of actions, grievances, arbitrations, obligations,
damages, demands, liabilities, defenses, suits, debts, dues, sums of monies,
accounts, reckonings, bonds, bills, specialties, covenants, contracts,
controversies, agreements, promises, variances, libels, slanders, trespasses,
damages, judgments, expenses, executions and claims whatsoever, known or
unknown, in law and/or equity, mixed or otherwise, which the Employee ever had,
now has or hereafter can, shall or may have against the RELEASEES, individually,
collectively, jointly or severally, for, upon, or by reason of any matter, act,
occurrence, omission, transaction or cause or thing whatsoever, from the
beginning of time to the date of this Agreement, including but not limited to
any claim or action, cause or causes of action, known or unknown, which Employee
ever had, now has, or hereafter can, shall or may have against the RELEASEES,
individually, jointly, severally or collectively, arising out of, as a
consequence of, or by reason of, resulting from, or connected in any way with
Employee's employment by RELEASEES or termination of that employment,
specifically including but not limited to, claims of discrimination based on
race, sex, age, national origin, religion, marital status, status as a
handicapped or disabled individual, or veteran status, under the Age
Discrimination in Employment Act (29 U.S.C. Section 621, et seq.), Title VII of
the Civil Rights Act of 1964 (42 U.S.C. Section 2000(e), et seq.), the Employee
Retirement Income Security Act (29 U.S.C. Section 1001, et seq.), the Americans
with Disabilities Act (42 U.S.C. Section 1201, et seq.), the Family and Medical
Leave Act (29 U.S.C. Section 2601, et seq.), the Texas Human Rights Act, or any
other federal, state or local statute, ordinance or common law relating to
employment, employment discrimination, termination of employment, contracts of
employment or wrongful discharge. Employee acknowledges, understands and
expressly agrees that this Agreement is a General Release. Nothing in this
Agreement shall prohibit Employee of Company from filing suit or seeking
remedies for any breach of this Agreement itself.
13. Employee warrants that he has not retained, and has returned to the
Company, any reports, files, memoranda, notes, records, data, recordings,
computers, computer software, computer access codes, computer disks, computer
drives or other computer memory storage devices, other physical property, or
documents of any kind of
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the Company, as well as all copies and reproductions of whatever kind thereof
made or compiled by Employee in whole or part or made available to Employee
during the term of his employment with Company or to which Employee was exposed
by any means during the course of his relationship with the Company. Employee
further agrees that should he later discover that despite this warranty he has
retained any of the above mentioned items of Company property that he shall
promptly notify the Company and return such property. Employer will upon
reasonable request by Employee or his counsel make available for inspection and
copying such documents or other information which are not privileged from
discovery in civil or criminal proceedings and would otherwise be obtainable by
subpoena or discovery request in a civil suit.
14. Employee warrants and represents that he has not assigned or
transferred, or purported to assign or transfer to any person, firm or entity
any claim against the RELEASEES or portion thereof or interest therein.
15. Employee and Company agree that this Agreement supersedes any prior
agreements which may have existed between them, that it contains and comprises
the entire agreement between them, and that there are no additional promises or
terms of the Agreement among the parties other than those contained herein, and
that this Agreement shall not be modified except in a writing signed by each of
the parties hereto.
16. The parties agree that the existence of this Agreement or any of its
parts is not, shall not be interpreted as, and shall not be offered as evidence
of an admission of liability or wrongdoing by any person or party. Each party
further agrees that nothing in this Agreement may be interpreted to render
either party a prevailing party for any purpose, including but not limited to,
the assessment of attorneys fees or costs under any statute or law.
17. Employee and Company agree that the terms, provisions, and conditions
of this Agreement and the negotiations in pursuance thereof are strictly
confidential. Employee shall not disclose information pertaining thereto to any
person or entity other than Employee's spouse, legal counsel and any financial
advisor except as specifically requested by a governmental agency or in
connection with the Securities Litigation. The Company shall not disclose such
information to third parties other than its tax advisors, legal counsel,
auditors and other persons having a legitimate business reason to gain access to
the information except as may be requested by a governmental agency or in
connection with the Securities Litigation. If either party is compelled by any
such request to disclose any one or more of the provisions of this Agreement, he
shall inform the other in writing of the circumstances requiring such
disclosure.
18. Employee represents that he has fully reviewed the terms of this
Agreement with legal counsel of his choosing and has been encouraged by the
Company to seek legal counsel. Employee expressly acknowledges that he has been
given ample time to consider his decision and is acting of his own free will.
Employee hereby acknowledges that he fully and completely understands and
accepts the terms of this Agreement including without limitation its effect as a
general release. Employee
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understands that he has twenty-one (21) days to consider the Agreement before
signing it. For a period of seven (7) days following his signature of this
Agreement, not including the date upon which it is signed ("Revocation Period"),
Employee may revoke it and the Agreement shall not become effective or
enforceable. No payments hereunder shall be made until the Revocation Period has
expired without Employee having exercised his right of revocation.
19. Employee agrees that any material breach by him of the obligations
contained in paragraphs 4-9, inclusive, of this Agreement are certain to cause
damage to the Company, and that the exact nature and amount of the damages
likely to be so incurred will be highly difficult to ascertain and/or quantify.
Accordingly, Employee agrees that in the event of his material breach of
paragraphs 4-10, inclusive, the Company may, in addition to any other relief or
remedy granted in law, enforce said provisions by obtaining equitable and
injunctive relief without the posting of a bond, guarantee or other surety, and
that such equitable/injunctive relief is appropriate.
20. If for any reason any provision of this Agreement shall be deemed to
be legally invalid or unenforceable, the validity, legality and enforceability
of the remainder of this Agreement shall not be affected. The parties expressly
authorize any court of competent jurisdiction to enforce any provision, or
portion thereof, or to modify any such provision, or portion thereof, so that
any such provision, or portion thereof, shall be enforced by the court to the
fullest extent permitted by law.
21. Employee represents that he has read this Agreement, that he
understands all of its terms, that he has had the opportunity to fully discuss
and disclose the terms of this Agreement with any attorney of his choice as
reflected in Paragraph 18 above. Employee also represents that he enters into
this Agreement voluntarily, of his own free will and with knowledge of its
meaning and effect including, without limitation, its effect as a general
release.
22. The Company warrants and represents that the individual signing below
on its behalf has full authority to enter into and execute this Agreement, and
that any resolutions of the Board of Directors as may be necessary to establish
that authority have been duly passed.
Virbac Corporation Xxxxxx Xxxx
By: _____________________________ By: _________________________
Its: ____________________________ Date: _______________________
Date: ___________________________
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EXHIBIT "A"
Competitors
1. Aquarium Pharmaceuticals
2. Aquatronics
3. Central Garden Companies
4. Church & Xxxxxx
5. Denta-Clen
6. Derma Pet
7. DVM Pharmaceuticals
8. Farnam Companies
9. Xxxxx
10. Xxxxx Mountain
11. Heska Corp.
12. INOBYS
13. Xxxxx Labs
14. Merial Ltd.
15. Novartis Animal Health
16. Pfizer Animal Health
17. Phoenix Scientific
18. S&M Nutec
19. Schering-Plough Animal Health
20. Sergeants
21. Tetra
22. United Pet Group Companies
23. Vet Solutions
EXHIBIT "B"
Customers/Alliances
1. Vedco
2. Xxxxx
3. Xxxxxx
4. PETsMART
5. Petco
Effective Tuesday January 27, 2004, I, Xxxxxx Xxxx, hereby resign my position as
President of Virbac Corporation, as well as any other positions or directorships
held by me with Virbac or any of its subsidiaries or affiliates.
____________________________
Xxxxxx Xxxx
