CONSULTING/SEPARATION AGREEMENT AND FULL MUTUAL RELEASE
This Separation Agreement and Full Mutual Release ("Agreement") is made
by and between Xxxxxx X. Xxxxxxxx ("Xxxxxxxx") and Impax Laboratories, Inc.
("Employer" or "the Company"). Xxxxxxxx and the Company are both parties to this
Agreement and are collectively referred to herein as the "Parties." Both
Xxxxxxxx and the Company desire to enter into this Agreement to fully resolve
all questions of compensation, entitlement to benefits, and any and all other
claims, whether known or unknown, which the Parties may have relating to
Xxxxxxxx'x employment with, and retirement from, the Company.
NOW, THEREFORE, in consideration of the mutual promises, agreements and
representations contained herein, and intending to be legally bound hereby, the
Parties agree as follows:
1. Definitions. As used in this Agreement, any reference to Xxxxxxxx
shall include himself, and in their capacities as such, his attorneys, heirs,
administrators, representatives, executors, legatees, successors, agents and
assigns. As used in this Agreement, any reference to the Company shall include
itself, its predecessors, successors, controlling or related entities,
affiliates, divisions, subsidiaries, managing agents, and joint ventures, and,
in their capacities as such, all of their past, present and future
representatives, agents, assigns, attorneys, directors, officers, partners,
shareholders and employees (except Xxxxxxxx).
2. Release. Except as to the promises made in this Agreement, the
Parties hereby fully, forever, irrevocably and unconditionally release, remise,
settle and discharge each other from any and all manner of claims, charges,
complaints, debts, liabilities, demands, actions, causes of action, suits,
rights, covenants, contracts, controversies, agreements, promises, omissions,
damages, obligations and expenses of any kind, including attorneys' fees,
whether known or unknown, which they had, now have, or hereafter may have
against each other arising from, or relating in any way to, Xxxxxxxx'x
employment relationship with the Company, including, but not limited to, Title
VII, the Age Discrimination In Employment Act, the Older Worker Benefit
Protection Act, the Pennsylvania Human Relations Act, and any other federal,
state or local statutes, or common law. It is expressly agreed and understood
that this is a GENERAL RELEASE.
3. Company's Obligations. In consideration for this Agreement, and in
addition to the Release set forth in Paragraph 2 above, the Company agrees that:
(a) it shall, starting April 3, 2005 through March 31, 2006, pay Xxxxxxxx a
base compensation of $204,100 per year, payable weekly in the gross
amount of $3925, although Xxxxxxxx'x services to the Company as CFO and
Secretary shall cease effective April 1, 2005 upon his retirement;
(b) it shall, through the earlier of March 31, 2006, or such time as
Xxxxxxxx finds replacement health care and dental coverage, pay the
COBRA premiums for Xxxxxxxx to continue the health and dental coverage
that he had while actively employed by the Company, after which time,
Xxxxxxxx can continue the COBRA coverage under the terms of COBRA if he
desires to do so. All other benefits Xxxxxxxx enjoyed as an employee
shall cease on April 2, 2005, and Xxxxxxxx shall not be eligible for
any bonus awarded by the Company under any 2005 or 2006 bonus plan or
for any stock options issued in 2005 or 2006;
(c) Xxxxxxxx'x Executive Life Plan shall continue one year beyond the
current term, which expires on October 28, 2005 until October 28, 2006;
(d) Xxxxxxxx'x Executive Long Term Disability Plan shall continue through
the current term, which expires on January 10, 2006;
(e) effective immediately prior to March 31, 2005, all stock options held
by Xxxxxxxx shall automatically become exercisable;
(f) the Compensation Committee of the Board of Directors has determined
that, as a result of becoming a consultant to the company, Xxxxxxxx
will remain in the "Continuous Service" of the Company during the
Consulting Term referenced in P. 4 below and, accordingly, all of
Xxxxxxxx'x outstanding stock options will continue to be exercisable
throughout the Consulting Term and thereafter for a period ending on
the earlier of (i) 180 days after the end of the Consulting Term or
(ii) the Expiration Date of the option;
(g) Xxxxxxxx will be eligible to participate in the Impax Laboratories,
Inc. Executive Non-Qualified Deferred Compensation Plan ("the Plan")
pursuant to the terms of the Plan and subject to the approval of the
Compensation Committee of the Board of Directors; and that he shall be
entitled to matching contributions as provided in the Plan; and that
such contributions shall be forfeited in the event Xxxxxxxx does not
comply with the terms of this Agreement; and
(h) recognizing that the payments for those benefits described in (b), (c)
and (d) above will result in taxable income to Xxxxxxxx, it shall, at
the end of the 2005 tax year, and at the end of the first quarter of
2006, pay Xxxxxxxx an amount equal to the state and federal tax he will
owe as a result of the Company's payment for those benefits.
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4. Xxxxxxxx'x Obligation. In consideration of this Agreement, and in
addition to the release set forth in paragraph 2 above, Xxxxxxxx agrees that he
shall:
(a) make himself available to the Company as a consultant until such time
as he begins employment with another entity, but in no event shall he
be obligated to act as a consultant beyond March 31, 2006 ("the
Consulting Term");
(b) not solicit, on behalf of himself or any other person or entity, any
current employees of the Company; (c) for a period of one (1) year
following the cessation of his employment as CFO for the Company, not
work for, or provide services to, whether directly or indirectly, any
competitor of the Company, and that for one (1) additional year, he
shall not work for or provide services to, whether directly or
indirectly, any directly competitive specialty pharmaceutical company,
unless the Company agrees in writing that Xxxxxxxx may do so;
(d) keep confidential the terms of this Agreement, and not disclose or
publish same, except in response to a subpoena, or except to his
immediate family members, his financial advisor, his attorney, or to
his accountant for the purpose of filing government tax returns;
(e) make no negative or disparaging comments of any kind about the Company
to any person or entity; (f) with the exception of the laptop computer
that Xxxxxxxx was provided by the Company, return to the Company any
equipment or documents that have not already been returned; and (g)
maintain the confidentiality of all proprietary information Xxxxxxxx
obtained about the Company, whether during his time as an employee or
as a Consultant.
5. Acknowledgment. Xxxxxxxx acknowledges that if he materially breaches
any of the provisions of paragraph 4 of this Agreement, in addition to any other
of the Company's rights and remedies, the Company shall immediately cease all
payments or benefits described in paragraph 3 above. Xxxxxxxx further
acknowledges that the consideration being provided by the Company is more than
the Employer is required to provide under its normal policies, practices or
Xxxxxxxx benefit plans and represents benefits to which Xxxxxxxx is not
otherwise entitled.
6. Covenant Not To Xxx. Xxxxxxxx warrants that he has not filed any
complaints, charges or claims for relief against the Company with any local,
state or federal court or administrative agency that are currently outstanding.
Xxxxxxxx further agrees and covenants not to xxx the Company with respect to any
matter arising before the effective date of this Agreement or covered by the
release set forth in paragraph 2 above, and not to assert against the Company in
any action, suit, litigation or proceeding any matter arising before the
effective date of this Agreement or covered by the release set forth in
paragraph 2 above.
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7. No Admission of Liability. It is expressly understood and agreed
that this Agreement, and any acts undertaken hereunder, shall not be construed
as an admission of liability or wrongdoing on the part of either Party under any
law, regulation or ordinance.
8. Controlling Law. This Agreement and all matters arising out of, or
relating to it, shall be governed by, and construed in accordance with, the laws
of the Commonwealth of Pennsylvania.
9. Jurisdiction. Any action arising out of, or relating to, any of the
provisions of this Agreement may, at the election of the Company, be brought and
prosecuted only in the courts of, or located in, the Commonwealth of
Pennsylvania, and in the event of such election, the Parties consent to the
jurisdiction and venue of said courts.
10. Entire Agreement. The Parties understand that no promise,
inducement, or other agreement not expressly contained herein has been made
conferring any benefit upon them; that the Agreement contains the entire
Agreement between the Parties; and that the terms of the Agreement are
contractual and not recitals only.
11. Severability. If any provision of this Agreement is construed to be
invalid, illegal or unenforceable, then the remaining provisions hereof shall
not be affected thereby and shall be enforceable without regard thereto, except
that, if the release set forth in Paragraph 2 above is held for any reason t to
be invalid or unenforceable, Xxxxxxxx acknowledges and agrees that he shall be
obligated to return any consideration already provided by the Company in
exchange for said Release, and that the Company shall have no obligation to
provide any further consideration.
12. Section Headings. Section and subsection headings in this Agreement
are for convenience of reference only and shall neither constitute a part of
this Agreement nor affect its interpretation.
13. Amendment. The Parties agree that this Agreement may not be
altered, amended, or modified, in any respect, except by a writing duly executed
by both Parties
14. XXXXXXXX ACKNOWLEDGES THAT HE WAS GIVEN A PERIOD OF 21 DAYS,
COMMENCING ON FEBRUARY 25, 2005 IN WHICH TO CONSIDER THIS AGREEMENT BEFORE
SIGNING IT; THAT HE MAY USE AS MUCH OF THIS 21-DAY PERIOD AS HE WISHES PRIOR TO
SIGNING; THAT HE MAY REVOKE THIS AGREEMENT WITHIN SEVEN (7) DAYS OF SIGNING IT;
AND THAT FOR SUCH REVOCATION TO BE EFFECTIVE, WRITTEN NOTICE MUST BE RECEIVED IN
WRITING BY XXXXX X. XXXXXXX, IMPAX LABORATORIES, INC., 000 XXX XXXXXXX
XXXXXXXXX, XXXXXXXX, XX 00000, NO LATER THAN THE CLOSE OF BUSINESS ON THE
SEVENTH DAY AFTER XXXXXXXX HAS SIGNED THIS AGREEMENT. IF XXXXXXXX REVOKES THIS
AGREEMENT, IT SHALL NOT BE EFFECTIVE OR ENFORCEABLE, AND XXXXXXXX WILL NOT
RECEIVE THE CONSIDERATION DESCRIBED IN PARAGRAPH 3 ABOVE. IF XXXXXXXX MATERIALLY
BREACHES ANY PROVISION OF THIS AGREEMENT AFTER IT HAS BECOME EFFECTIVE, XXXXXXXX
SHALL NOT RECEIVE ANY REMAINING CONSIDERATION THAT HAS NOT YET BEEN PAID AT THE
TIME OF THE BREACH.
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XXXXXXXX REPRESENTS THAT HE HAS READ THE TERMS OF THIS AGREEMENT; THAT
HE HAS HAD AN OPPORTUNITY TO FULLY DISCUSS AND REVIEW THE TERMS OF THIS
AGREEMENT WITH HIS ATTORNEY; THAT HE UNDERSTANDS THE CONTENTS HEREOF; AND THAT
HE FREELY AND VOLUNTARILY ASSENTS TO ALL THE TERMS AND CONDITIONS HEREOF, AND
SIGNS THE SAME AS HIS OWN FREE ACT, AND WITH THE INTENTION OF RELEASING THE
COMPANY FROM EACH AND EVERY CLAIM RELATING IN ANY WAY TO HIS EMPLOYMENT WITH THE
COMPANY.
IN WITNESS WHEREOF, and intending to be legally bound, the Parties
agree to the terms of this Agreement. For Impax Laboratories, Inc.
Date: 2/28/05 By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
Chief Executive Officer
Date: 2/28/05 /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
