SEPARATION AGREEMENT
EXHIBIT
10.53
THIS
SEPARATION AGREEMENT (hereinafter
“Agreement”) is made and entered into by and between Xxxxxxx X. Xxxxxxxxxx (“Xx.
Xxxxxxxxxx”) and Chattem, Inc. (“Chattem”) in order to reach an amicable
termination of their employment relationship and to promote harmonious relations
in the future.
1. Resignation. Xx.
Xxxxxxxxxx agrees that his employment with Chattem will terminate by his
resignation effective November 16, 2007 (the “Resignation
Date”). Thereafter, except as otherwise provided herein, no future
compensation, allowances, or benefits will accrue in his favor.
2. Separation
Pay.
a. Provided
that Xx. Xxxxxxxxxx signs this Agreement and does not revoke it, Chattem will
voluntarily pay Xx. Xxxxxxxxxx, the gross amount of Seven Thousand Nine Hundred
Sixty-One and 54/100 ($7,961.54) Dollars per bi-weekly pay period, less
appropriate withholding for FICA, Medicare, and federal and state (if
applicable) taxes (hereinafter “Separation Pay”), for a period of six (6)
consecutive months from the Resignation Date (November 17, 2007 through May
16,
2008), regardless of whether he obtains other employment during that period
of
time.
b. Provided
that Xx. Xxxxxxxxxx is not employed on or before May 16, 2008, he will be
entitled to receive Separation Pay (as referenced above) for up to an additional
six (6) consecutive months subject to the following express
conditions:
i. Xx.
Xxxxxxxxxx must actively seek employment during the period of time commencing
on
the Resignation Date and continuing for the ensuing twelve (12) consecutive
months or until he is employed, whichever occurs first;
ii. Xx.
Xxxxxxxxxx must complete and sign the form attached hereto as Exhibit A beginning during
the
first month following the Resignation Date and continuing during each month
thereafter, and he must submit such form to Chattem’s President by the 15th
of each month to
certify that he is making diligent, good faith efforts to seek employment;
and
iii. Xx.
Xxxxxxxxxx must notify Chattem’s President in writing immediately upon becoming
employed.
c. For
purposes of paragraphs 2 and 4 of this Agreement, the terms “employment” and
“employed” are defined to mean that Xx. Xxxxxxxxxx is performing work or
rendering services on behalf of some other person or entity (other than
Chattem), in exchange for compensation, other than as a self-employed
independent contractor/consultant.
d. In
the event Xx. Xxxxxxxxxx becomes employed before the Resignation Date, or at
any
point during the six (6) consecutive months following the
| _______ Xx. Xxxxxxxxxx |
Chattem
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Resignation
Date, or he fails to meet the express conditions set forth in paragraph 2(b)
of
this Agreement during such six (6) month period, Xx. Xxxxxxxxxx’x Separation Pay
shall cease on May 16, 2008.
e. In
the event Xx. Xxxxxxxxxx is not employed on or before May 16, 2008, but he
becomes employed during the period from May 17, 2008 through November 16, 2008,
Chattem’s obligation to pay Xx. Xxxxxxxxxx’x Separation Pay will immediately
cease on the date Xx. Xxxxxxxxxx becomes employed. Similarly, in the
event Xx. Xxxxxxxxxx fails to meet the express conditions set forth in paragraph
2(b) of this Agreement during the period from May 17, 2008 through
November 16, 2008, Chattem’s obligation to pay Xx. Xxxxxxxxxx’x Separation Pay
will immediately cease.
f. All
payments of Separation Pay hereunder will be made by direct deposit to Xx.
Xxxxxxxxxx’x bank account according to Chattem’s normal payroll procedures and
cycle.
g. The
Separation Pay outlined above will be in addition to Xx. Xxxxxxxxxx’x regular
salary through October 19, 2007 (Xx. Xxxxxxxxxx will be on an unpaid suspension
from October 20, 2007 through the Resignation Date), and fringe benefits and
ten
(10) days of unpaid earned and accrued vacation pay through the Resignation
Date. Xx. Xxxxxxxxxx specifically acknowledges that the Separation
Pay and other consideration specified in this Agreement, supplant any bonus,
commissions, or other pay whatsoever to which he might otherwise be entitled,
except as specifically provided in this Agreement.
3. Bonus
Participation. To the extent that bonuses are paid to active
employees of Chattem under the fiscal 2007 Chattem Short Term Incentive
Compensation Plan (“Chattem Corporate Bonus Plan”), the parties agree that,
notwithstanding the terms of such Chattem Corporate Bonus Plan, Xx. Xxxxxxxxxx
shall participate in the Chattem Corporate Bonus Plan for all of fiscal 2007
at
the applicable bonus level based on the corporate performance
level. Any bonus payable to Xx. Xxxxxxxxxx under this provision will
be paid to him according to Chattem’s regular time-table for making such bonus
payments to active employees. Xx. Xxxxxxxxxx acknowledges that he
will not be eligible for any other bonus from Chattem under any other program,
plan or policy, including, without limitation, the fiscal 2008 Chattem Corporate
Bonus Plan.
4. Separation
Benefits.
a. Health
Insurance
Benefits. Xx. Xxxxxxxxxx agrees that all of his employee
benefits, including, without limitation, his Chattem group medical and dental
insurance coverages, will cease as of the Resignation Date. Xx.
Xxxxxxxxxx (and his dependents, if any) may be entitled to continue certain
benefits under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”)
following the expiration of his group medical and dental insurance coverage
on
the Resignation Date. Provided that Xx. Xxxxxxxxxx signs this
Agreement and does not revoke it, Chattem will pay the premiums for such
coverage under COBRA for a period of six (6) consecutive months from the
Resignation Date. These Separation Benefits will be available to Xx.
Xxxxxxxxxx regardless of whether he obtains other employment
| _______ Xx. Xxxxxxxxxx |
Chattem
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on
or
before May 16, 2008. Provided that Xx. Xxxxxxxxxx is not employed on
or before May 16, 2008, and provided further that Xx. Xxxxxxxxxx complies with
the express provisions of paragraph 2(b) of this Agreement, Chattem will pay
the
premiums for COBRA continuation coverage for Xx. Xxxxxxxxxx (and his dependents,
if any) for an additional six (6) consecutive month period, from May 17, 2008
through November 16, 2008, or until Xx. Xxxxxxxxxx is employed or until he
fails
to comply with the express provisions of Paragrah 2(b) of this Agreement,
whichever event occurs first. At the point in time Chattem
discontinues paying COBRA premiums for Xx. Xxxxxxxxxx and his dependents, Xx.
Xxxxxxxxxx and his dependents may continue such coverage under COBRA at Xx.
Xxxxxxxxxx'x own expense to the extent that they are otherwise eligible for
such
coverage.
b. Split
Dollar Life
Insurance. Chattem owns New York Life Insurance and Annuity
Corporation Policy No. 56 401 502 (the “Life Insurance Policy”), insuring Xx.
Xxxxxxxxxx’x life, which, as of September 30, 2007, had a death benefit of
$283,519 and a cash value of $6,856.23. To the extent such life
insurance policy is transferable, Chattem will allow Xx. Xxxxxxxxxx to purchase
the Life Insurance Policy for the sum of $6,856.23, provided that Xx. Xxxxxxxxxx
exercises such right of purchase within sixty (60) days following the
Resignation Date. Thereafter, Xx. Xxxxxxxxxx’x right to purchase the
Life Insurance Policy shall expire. Chattem shall have no further
obligation to Xx. Xxxxxxxxxx to pay any premiums in connection with the Life
Insurance Policy. In the event Xx. Xxxxxxxxxx elects to purchase the
Life Insurance Policy, he shall be solely responsible for any taxes assessed
against him as a result of such transaction.
c. Term
Life
Insurance. Nothing in this Agreement will prejudice any right
that Xx. Xxxxxxxxxx may otherwise have to convert his Chattem group term life
insurance policy to an individual policy owned by Xx. Xxxxxxxxxx provided that
Xx. Xxxxxxxxxx pays all costs associated with such conversion.
5. Retirement
Plans. As of the date of this Agreement, Xx. Xxxxxxxxxx may be
participating in various Chattem Retirement Plans, including a 401(k) account
(“Retirement Plans”). For purposes of the Retirement Plans, the
Resignation Date shall be Xx. Xxxxxxxxxx’x Xxxxxxxxx from Employment
Date.
6. Job
Reference and
Non-Disparagement. In the event that an Authorized
Representative of Chattem (for purposes of this paragraph "Authorized
Representative" means an officer of Chattem or any member of Chattem’s Human
Resources Department) is contacted by any person or entity concerning Xx.
Xxxxxxxxxx’x employment by Chattem, such Authorized Representative of Chattem
will refer such inquiry to Chattem’s President/Chief Operating Officer or Chief
Executive Officer who will divulge Xx. Xxxxxxxxxx’x dates of employment,
position held and rate of pay, as well as other information that is generally
consistent with the letter of reference attached as Exhibit B, an original, signed
version of which will be provided to Xx. Xxxxxxxxxx provided he signs this
Agreement and does not revoke it. Xx. Xxxxxxxxxx agrees that he will
not, directly or indirectly, make any disparaging, negative, or unfavorable
verbal or written statements of any nature whatsoever about Chattem, its
management, operations, products, services, directors, officers, employees
or
agents.
| _______ Xx. Xxxxxxxxxx |
Chattem
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7. Stock
Options. In
accordance with the terms of Chattem’s Non-Statutory Stock Option Plans, the
currently vested and exercisable options previously granted to Xx. Xxxxxxxxxx,
and Twelve Thousand Five Hundred (12,500) options granted to him in April 2005
and vested on an accelerated basis in November 2005, but subjected at that
time
to transfer restrictions due to expire in 2008 and 2009, may be exercised and
the underlying stock sold free of the transfer restrictions, at any time on
or
before thirty (30) days after the Resignation Date, after which date all such
vested and unexercised options shall expire. All other stock options
previously granted to Xx. Xxxxxxxxxx that are not vested as of the Resignation
Date shall expire and terminate on such Resignation Date in accordance with
the
terms of Chattem's Non-Statutory Stock Option Plans.
8. Restricted
Stock. On January 26, 2005, Xx. Xxxxxxxxxx was granted 3,000
shares of restricted stock (the “Restricted Stock”). As of the
Resignation Date, 1,500 shares of the Restricted Stock will have vested and
forfeiture restrictions will have terminated. The
remaining 1,500 shares of Restricted Stock, as to which restrictions will
not have lapsed as of the Resignation Date, shall immediately be forfeited
and
cancelled, and Xx. Xxxxxxxxxx shall tender to Chattem, for cancellation,
certificates representing such shares.
9. Xx.
Xxxxxxxxxx’x
Services. Xx. Xxxxxxxxxx agrees that, upon request by Chattem,
he will respond fully to requests for information from Chattem, its attorneys
or
accountants, from the Resignation Date through the period of time during which
he continues to receive Separation Pay. Xx. Xxxxxxxxxx acknowledges
that he will receive no additional compensation in connection with his
performance of these duties for Chattem, unless such duties require more than
ten (10) hours in any week, in which case Chattem shall pay Xx. Xxxxxxxxxx
at
the rate of One Hundred Fifty and No/100 ($150.00) Dollars per hour for all
such
hours exceeding ten in such week.
10. General
Release. In
consideration for the benefits conferred upon Xx. Xxxxxxxxxx as outlined in
this
Agreement, Xx. Xxxxxxxxxx agrees to release Chattem and each of its officers,
directors, employees, agents, attorneys, subsidiaries and affiliates from any
and all charges, complaints, claims, liabilities, obligations, actions, causes
of action, suits, demands, costs, losses, damages and expenses, of any nature
whatsoever, known or unknown, including, but in no way limited to, any claims
under Title VII of the Civil Rights Act of 1964 (Title VII); The Age
Discrimination in Employment Act (ADEA); the Americans with Disabilities Act
(ADA); the Employee Retirement Income Security Act of 1974, as amended (ERISA)
(other than any claim for benefits, vested or accrued, through the Severance
from Employment date specified above, under a qualified retirement plan or
welfare benefit plan); 42 U.S.C. §1981; the Occupational Safety and Health Act,
29 U.S.C. §651 et seq.
(OSHA); the federal False Claims Act; the Tennessee Human Rights Act; the
Tennessee Public Protection Act; any claim based on express or implied contract;
any claims of promissory estoppel; any action arising in tort, including, but
in
no way limited to, libel, slander, defamation, intentional infliction of
emotional distress, or negligence; any claim for wrongful discharge, any
constitutional claims, or any claim under all laws relating to the violation
of
public policy, retaliation or compensation; any claims arising under employment
or disability discrimination or whistleblower laws; or any claims under other
applicable federal, state or local law, regulation, ordinance or order, at
common law or otherwise arising out of their employment relationship or the
termination of their employment
| _______ Xx. Xxxxxxxxxx |
Chattem
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relationship,
which Xx. Xxxxxxxxxx now has, owns or holds, or claims to have, own or hold,
or
which he at any time heretofore had, owned or held, or claimed to have, own
or
hold against them. It is agreed that this is a general release and it
is to be broadly construed as a release of all claims; provided that, this
paragraph expressly does not include a release of any claims that cannot be
released hereunder by law. Xx. Xxxxxxxxxx hereby acknowledges that he
has received from Chattem all wages and compensation which he is owed by Chattem
or to which he is entitled by law as of his last pay period. Xx.
Xxxxxxxxxx hereby acknowledges that Chattem has in no way interfered with his right
to take any leave
to which he may have been entitled by law or under Chattem’s
policies. Xx. Xxxxxxxxxx further acknowledges that Chattem has
allowed him to take any such leave for which he was eligible and which he
requested. Xx. Xxxxxxxxxx further acknowledges that he has reported
any and all workplace injuries that he has incurred or suffered to
date.
11. Confidentiality
of
Agreement. In further consideration for the above Separation
Pay and Separation Benefits, Xx. Xxxxxxxxxx agrees that he will keep the terms
and amount of this Agreement completely confidential, and that he will not
hereafter disclose any information concerning this Agreement to any person
or
entity other than his attorneys, his tax advisors and his spouse, except as
required by law; provided, that those individuals will be deemed to be his
agents and, therefore, also bound by this Agreement. Xx. Xxxxxxxxxx
further recognizes and acknowledges that strict confidentiality is of the
essence of this Agreement, and that Chattem would suffer immediate and
irreparable harm in the event of any breach of that
confidentiality. Nothing in this Agreement shall prevent Xx.
Xxxxxxxxxx from responding to a subpoena or court order issued by any agency
or
court of competent jurisdiction. Further, without divulging any other
information concerning this Agreement, Xx. Xxxxxxxxxx may disclose to any
prospective employers the existence and terms of any restrictive covenants
contained in paragraphs 12, 14 and 15 of this Agreement. It is
acknowledged that Chattem may be obligated to disclose the contents of this
Agreement under applicable securities laws, NASDAQ rules and certain contractual
relationships or as otherwise required by law; issue a press release and deal
with the media in connection with the announcement of this Agreement; and
respond to inquiries from shareholders, analysts and other appropriate
parties.
12. Non-disclosure
of Confidential
Information. As further consideration for the benefits
conferred upon Xx. Xxxxxxxxxx by this Agreement, Xx. Xxxxxxxxxx agrees that
he
will not divulge, furnish or make accessible to anyone or use in any way any
confidential or secret knowledge or information of Chattem that Xx. Xxxxxxxxxx
has acquired or become acquainted with during his employment by Chattem, whether
communicated orally or in writing, and whether developed by himself or by
others, concerning any products, product launches, financial information,
techniques, data, ideas, trade secrets, confidential or secret designs,
processes, formulae, plans, devices or material (whether or not patented or
patentable) directly or indirectly useful in any aspect of the business of
Chattem; any customer information, marketing information, media buying
techniques and strategies, business plans, merchandising information, pricing
information, strategies, or supplier lists of Chattem; any confidential or
secret development or research work of Chattem; any other confidential
information or secret aspects of the business of Chattem; any past or currently
contemplated brand acquisition or divestiture, licensing opportunity or business
transaction; or any information relating to personal or personnel matters,
stock
ownership, contracts, investments, legal matters or business affairs of
| _______ Xx. Xxxxxxxxxx |
Chattem
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Chattem
which are of a proprietary or confidential nature, or maintained as information
not generally disclosed to the public, whether communicated orally or in writing
(collectively, the “Confidential Information”). Xx. Xxxxxxxxxx
acknowledges that Confidential Information constitutes a unique and valuable
asset of Chattem and represents a substantial investment of time and expense
by
Chattem, and that any disclosure or other use of such Confidential Information
other than for the sole benefit of Chattem would be wrongful and would cause
irreparable harm to Chattem. Xx. Xxxxxxxxxx will refrain from any
acts or omissions that would reduce the value of such Confidential Information
to Chattem. Xx. Xxxxxxxxxx further acknowledges that this provision
is of the essence of this Agreement, and that Chattem would suffer irreparable
harm in the event of any breach of this provision.
13. Surrender
of Materials Upon
Resignation. Xx. Xxxxxxxxxx hereby agrees that, upon the
Resignation Date, he will immediately surrender to Chattem all personal notes,
drawings, manuals, documents, photographs, computer programs, disks or the
like,
including all copies thereof, comprising or including any Confidential
Information. In addition, Xx. Xxxxxxxxxx agrees to return to Chattem,
immediately upon the Resignation Date, all Chattem property, including, but
not
limited to, credit cards, computer hardware, computer software, cell phones,
pagers, office and plant keys or cards, and office supplies.
14. Agreement
Not to Interfere or
Solicit. Xx. Xxxxxxxxxx agrees that, for a period of twelve
(12) months following the Resignation Date (the “Non-Solicitation Period”), he
will not, directly or indirectly, either for the benefit of himself or for
the
benefit of any other person, firm, corporation, or other entity, without the
prior written consent of Chattem, which consent may be withheld by Chattem
in
its sole discretion, induce or attempt to induce any supplier, customer, client,
business partner, or prospective acquisition candidate and/or licensing partner
of Chattem to withdraw, curtail or cease doing business with
Chattem. Xx. Xxxxxxxxxx also agrees that, during the Non-Solicitation
Period, he will not, directly or indirectly, induce or attempt to induce any
employee of Chattem to leave the employ of Chattem. Finally, Xx.
Xxxxxxxxxx agrees that, during the Non-Solicitation Period, he will not,
directly or indirectly, assist or encourage any other person in carrying out
any
activity that would be prohibited by the foregoing provisions of this paragraph
14, if such activity were carried out by Xx. Xxxxxxxxxx either directly or
indirectly.
15. Non-Compete. For
a
period of twelve (12) months from the Resignation Date, Xx. Xxxxxxxxxx covenants
and agrees that he will not directly or indirectly, offer or provide any
marketing services, including on a consulting basis, to any person, company,
partnership, joint venture or other entity in a capacity involving, in whole
or
in part, over-the-counter drugs, functional toiletries or dietary supplements
which are competitive with the product categories of Chattem listed in Exhibit C to this
Agreement. This provision applies only to persons or entities selling
the above specified products in competition with Chattem in any Food, Drug
and
Mass merchandiser stores in the United States.
16. Standstill. For
a
period of five (5) years from the Resignation Date (“the Standstill Period”),
Xx. Xxxxxxxxxx shall not, directly or indirectly, and Xx. Xxxxxxxxxx shall
cause
any affiliate of his not to: (i) except pursuant to currently held
stock options and restricted stock described in paragraphs 7 and 8 herein,
acquire, or offer or agree to acquire, directly or
| _______ Xx. Xxxxxxxxxx |
Chattem
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indirectly,
by purchase or otherwise, any securities of Chattem (or direct or indirect
rights or options to acquire any securities of Chattem), except by way of stock
dividends or other distributions made on a pro rata basis with respect to
securities of Chattem acquired by Xx. Xxxxxxxxxx prior to the date of this
Agreement; (ii) solicit proxies or consents or become a "participant" in a
"solicitation" (as such terms are defined in Regulation 14A under the Securities
Exchange Act of 1934, as amended) of proxies or consents with respect to
securities of Chattem with regard to any matter; (iii) seek to control or
influence the management, Board of Directors or policies of Chattem, or seek
to
advise, encourage or influence any person with respect to the voting of any
securities of Chattem, or induce, attempt to induce or in any manner assist
any
other person in initiating any shareholder proposal or a tender or exchange
offer for securities of Chattem or any change of control of Chattem, or for
the
purpose of convening a shareholders' meeting of Chattem; (iv) make any public
announcement or make any written or oral proposal or invitation to discuss
any
possibility, intention, plan or arrangement, relating to a tender or exchange
offer for securities of Chattem or a business combination (or other similar
transaction which would result in a change of control), sale of assets,
liquidation or other extraordinary corporate transaction between Xx. Xxxxxxxxxx
or any of his affiliates and Chattem or take any action which might require
Chattem to make a public announcement regarding any of the foregoing; or (v)
form, join or in any way participate in a partnership, limited partnership,
syndicate or other group (or otherwise act in concert with any other person)
for
the purpose of acquiring, holding, voting or disposing of securities of Chattem
or taking any other actions restricted or prohibited under clauses (i) through
(iv) of this paragraph 16, or announce an intention to do, or enter into any
arrangement or understanding with others to do, any of the actions restricted
or
prohibited under clauses (i) through (iv) of this paragraph
16. Notwithstanding the foregoing, the parties agree that Xx.
Xxxxxxxxxx’x ownership of less than a two percent (2%) interest in a mutual fund
registered under the Investment Company Act of 1940, as amended, shall not
be a
violation of clauses (i) through (iv) of this paragraph 16. The
parties further agree that Xx. Xxxxxxxxxx’x acquisition or ownership of shares
of Chattem stock shall not be a violation of paragraph 16 of this Agreement
so
long as his total holdings of Chattem stock do not exceed 20,000
shares.
17. Litigation. Xx.
Xxxxxxxxxx agrees that it is an essential term and condition of this Agreement
that he cooperate with Chattem and its counsel in any claims and/or lawsuits
involving Chattem of which he may have particular knowledge or in which he
may
be a witness. Such cooperation includes meeting with Chattem
representatives and counsel to disclose such facts as Xx. Xxxxxxxxxx may know;
preparing with Chattem counsel for any deposition, trial, hearing or other
proceeding; attending any deposition, trial, hearing or other proceeding to
provide truthful testimony; and providing other assistance to Chattem and to
Chattem’s counsel in the defense or prosecution of litigation as may, in the
judgment of Chattem’s counsel, be necessary. Chattem agrees to
reimburse Xx. Xxxxxxxxxx for reasonable and necessary expenses incurred by
Xx.
Xxxxxxxxxx in the course of complying with this obligation of
cooperation.
18. Remedies. Xx.
Xxxxxxxxxx agrees that the covenants specifically set forth in paragraphs 6,
7,
8, 9, 10, 11, 12, 13, 14, 15, 16 and 17 of this Agreement are of the essence
of
this Agreement; that each of such covenants is reasonable and necessary to
protect and preserve the interests and properties of Chattem; and that
irreparable loss and damage will be suffered by Chattem should Xx. Xxxxxxxxxx
breach any of such covenants. In the event of a breach of any
| _______ Xx. Xxxxxxxxxx |
Chattem
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7
of
these
provisions, this Agreement shall not be void; however, Chattem will thereafter
have no further obligations to Xx. Xxxxxxxxxx pursuant to this Agreement, and
Chattem may bring an action in a court of appropriate jurisdiction to enforce
the applicable provision and to recover appropriate damages and attorney
fees. The parties further agree that the covenants contained in
paragraphs 14, 15 and 16 of this Agreement are of particular importance to
Chattem. In the event of a breach of any of the restrictive covenants
contained in paragraphs 14, 15 or 16 of this Agreement, this Agreement shall
not
be void; however, Xx. Xxxxxxxxxx agrees that, in addition to the remedies
provided above, upon demand by Chattem, he will be under an obligation to
immediately return and/or refund seventy-five percent (75%) of the Separation
Pay (specified in paragraph 2) and bonus (specified in paragraph 3) previously
paid by Chattem hereunder and that Chattem will thereafter have no further
obligations to him pursuant to this Agreement. In addition, Xx.
Xxxxxxxxxx agrees and consents that, in addition to all other remedies provided
at law or in equity, Chattem shall be entitled to a temporary restraining order
and temporary and permanent injunctions to prevent a breach or contemplated
breach of any of the aforementioned covenants. The existence of any
claim, demand, action or cause of action of Xx. Xxxxxxxxxx against Chattem
shall
not constitute a defense to the enforcement by Chattem of any of the covenants
or agreements herein.
19. Opportunity
to
Review. Xx. Xxxxxxxxxx represents and acknowledges that he has
carefully read and understands all of the provisions of this Agreement, and
that
he is voluntarily entering into this Agreement. Xx. Xxxxxxxxxx represents
and acknowledges that he has been advised in writing to, and has been afforded
the right and opportunity to consult with an attorney prior to executing this
Agreement; that he has twenty-one (21) days within which to consider this
Agreement; that he has seven (7) days following its execution within which
to
revoke this Agreement; and that this Agreement, and any consideration due
hereunder, will not become effective until after the revocation period has
expired. Xx. Xxxxxxxxxx further acknowledges and confirms that
the only consideration for him signing this Agreement are the terms and
conditions stated in writing in this Agreement, and that no other promise or
agreement of any kind, other than those set out in writing in this Agreement,
has been made to him by any person to cause him to sign this
Agreement.
20. Indemnification.
In further
consideration for the above, Xx. Xxxxxxxxxx agrees to indemnify and hold Chattem
harmless from and against any and all loss, cost, damage or expense, including,
without limitation, attorney fees, incurred by Chattem arising out of any breach
of this Agreement by Xx. Xxxxxxxxxx. Chattem agrees to indemnify and
hold Xx. Xxxxxxxxxx harmless from and against any and all loss, cost, damage
or
expense, including, without limitation, attorney fees, incurred by Xx.
Xxxxxxxxxx arising out of any breach of this Agreement by Chattem.
21. Non-admission. This
Agreement will not in any way be construed as an admission by Chattem of any
acts of discrimination or misconduct whatsoever against Xx. Xxxxxxxxxx or any
other person, and Chattem specifically disclaims any liability to or
discrimination against Xx. Xxxxxxxxxx or any other person, on the part of
itself, its employees or its agents. Similarly, this Agreement will
not in any way be construed as an admission by Xx. Xxxxxxxxxx of any acts of
misconduct whatsoever against Chattem or any other person or
entity,
| _______ Xx. Xxxxxxxxxx |
Chattem
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|
8
and
Xx.
Xxxxxxxxxx specifically disclaims any liability to or misconduct against Chattem
or any other person or entity.
22. Governing
Law. This
Agreement is made and entered into in the State of Tennessee, and will in all
respects be interpreted, enforced and governed under the laws of that
State.
23. Binding
Effect. All
covenants, representations, and agreements made by or on behalf of Xx.
Xxxxxxxxxx and Chattem contained in the Agreement will be binding upon the
parties and their respective spouses, successors, representatives, assigns,
heirs and estates.
24. Entire
Agreement. This Agreement sets forth the entire agreement
between the parties, and fully supersedes any and all prior agreements or
understandings between them pertaining to the subject matter
hereof. It is agreed that this Agreement may be modified only by a
subsequent, written agreement, executed by both parties.
25. Arbitration. Xx.
Xxxxxxxxxx and Chattem expressly waive any right to a jury trial or to go to
court concerning any and all disputes arising regarding the interpretation,
enforcement, or performance of this Agreement, other than for injunctive relief
pursuant to paragraph 18 of this Agreement. Any and all disputes
arising regarding the interpretation, enforcement, or performance of this
Agreement shall be resolved by binding, confidential arbitration in Chattanooga,
Tennessee, which arbitration shall be governed by the Arbitration Rules
established by the American Arbitration Association. The arbitrator
shall have full authority to enforce the Agreement, including injunctive or
other equitable relief.
This
Agreement includes a waiver and general
release of all known and unknown claims. Xx. Xxxxxxxxxx acknowledges
that he has carefully read and understands this Agreement. Xx.
Xxxxxxxxxx is advised to consult an attorney before executing this waiver and
general release of all claims.
The
undersigned have executed this
Agreement on the dates reflected by their signatures.
| CHATTEM, INC. | ||||
|
By:
|
By:
|
|||
|
Xxxxxxx
X.
Xxxxxxxxxx
|
Xxxxxx
X.
Xxxxxxxx
|
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|
|
President
and
Chief Operating Officer
|
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| Date: | Date: |
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