EXHIBIT 10.27
EMPLOYMENT TERMINATION, RELEASE AND
COOPERATION AGREEMENT
Virbac Corporation ("the Company") and Xxxxxx Xxxxxxxx ("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 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.
The parties agree that the resignation was at the request of and for the benefit
of the Company, and therefore the Company shall not contest the Employee's
eligibility for unemployment compensation. 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 17 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 during such time; and
c) Advance to Employee certain reasonable attorneys fees and expenses
as is more fully described in paragraph 10 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
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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 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 shall provide to the
Company a copy of any written statement so given. Any further provision of
information among and between the parties to this agreement relating to the
Securities Litigation shall be governed by a separate Joint
Defense/Confidentiality Agreement to be executed by the parties.
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.
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.
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 up 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.
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11. As further consideration of the promises made by Employee in this
Agreement, the Company shall continue to advance to Employee reasonable
attorneys 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 agrees that he shall make available for inspection and/or
copying, at the Company's own expense, any and all reports, files, memoranda,
notes,
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records data, recordings, computer disks, computer drives or other computer
memory storage devices, documents or other physical property containing
information of the Company of whatever kind made or compiled by Employee in
whole or part or made available to Employee in connection with his employment
with Company which are in the possession or control of Employee or his agents.
Employee further agrees to return to Company all such documents or information
which is subject to a legitimate claim of attorney-client privilege or other
corporate privilege against disclosure in litigation. Employee further agrees
that if after the Company's initial inspection and copying he should discover
that he has in his possession or control additional Company documents or
information not previously made available, he shall promptly notify the company
and provide an opportunity for inspection and copying.
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
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 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
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Agreement including without limitation its effect as a general release. Employee
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 4-9, 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 Xxxxxxxx
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. Jungle
14. Xxxxx Labs
15. Merial Ltd.
16. Novartis Animal Health
17. Pfizer Animal Health
18. Phoenix Scientific
19. S&M Nutec
20. Schering-Plough Animal Health
21. Sergeants
22. Tetra
23. United Pet Group Companies
24. Vet Solutions
EXHIBIT "B"
Customers/Alliances
1. Walco
2. Vedco
3. Xxxxx
4. Xxxxxx
5. PETsMART
6. Petco
