EXHIBIT 10.8
SEPARATION AGREEMENT
This Separation Agreement and General Release (this "Agreement") is entered
into as of August 31, 2003 between Bone Care International, Inc., a Wisconsin
corporation (the "Company"), and Xxxxxx X. Xxxxxxx (the "Executive").
WHEREAS, the Executive currently serves as Vice President-Finance and Chief
Financial Officer of the Company; and
WHEREAS, the Company and the Executive desire to set forth herein their
mutual agreement with respect to all matters relating to the Executive's
resignation and cessation of employment with the Company and its affiliates and
the Executive's release of claims upon the terms set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and agreements
contained herein, the adequacy and sufficiency of which are hereby acknowledged,
the Company and the Executive hereby agree as follows:
1. RESIGNATION; TERMINATION OF EMPLOYMENT. The Executive hereby resigns as
Vice President-Finance and Chief Financial Officer of the Company, effective
upon the Employment Termination Date (as hereinafter defined), or upon such
earlier date as the Company shall request and hereby resigns from all other
positions (if any) with the Company and its subsidiaries and affiliates as of
the date hereof. The employment of the Executive by the Company shall continue
until the Employment Termination Date, at which time the Executive shall cease
to be an employee of the Company. For purposes of this Agreement, "Employment
Termination Date" shall mean September 30, 2003.
2. PAYMENT AND BENEFITS.
(a) During the period between the date hereof and the Employment
Termination Date (i) the Company shall continue to pay to the Executive the
Executive's current base salary and any expense reimbursements accrued by the
Executive in accordance with Company policy, (ii) the Company shall provide
matching contributions under the Company's 401(k) plan in accordance with the
terms of such plan and (iii) the Company shall provide health, dental, life and
disability insurance coverage and benefits under its PTO policy on the same
basis as provided to executives of the Company, but Executive shall not be
entitled to any bonus or stock option grants or any other employee benefits
except as otherwise provided in this Section 2.
(b) The Company shall pay to the Executive on the regular Company pay
date immediately following the Employment Termination Date all amounts due to
the Executive for salary accrued for services rendered through the Employment
Termination Date, and an amount equal to $3,385 for accrued and unused vacation
as of the Employment Termination Date.
(c) On the Employment Termination Date 25,000 of the unvested stock
options previously granted by the Company to the Executive on July 24, 2002
shall become vested and exercisable and the remainder of the unvested stock
options granted on such date shall expire. Following the Employment Termination
Date, such 25,000 stock options may be exercised, to the extent exercisable
after the Employment Termination Date, for a period of 30 days following the
Employment Termination Date; provided that if during such period the Executive
is prohibited under the Company's xxxxxxx xxxxxxx policy from selling the shares
to be received upon exercise of such stock options, then such period shall be
extended for a period of 30 days following the first date on which the Executive
is not so prohibited.
3. ADDITIONAL PAYMENT. Provided that the Executive complies with the
covenants contained in Sections 6, 7, 8, 9, 10 and 11 hereof, and in
consideration for the general releases contained in Section 11 hereof (the
"Releases"), on the Employment Termination Date the Company shall pay to the
Executive a lump sum cash amount equal to $165,000.
4. FEDERAL AND STATE WITHHOLDING. The Company shall deduct from the amounts
payable to the Executive pursuant to this Agreement the amount of all required
federal and state withholding taxes in accordance with the Executive's Form W-4
on file with the Company and all applicable social security taxes.
5. EMPLOYEE BENEFITS. Pursuant to the Consolidated Omnibus Budget
Reconciliation Act of 1985 ("COBRA"), the Executive may elect to continue
coverage for the Executive and his dependents at the Executive's expense under
the Company's medical and dental plans for a period of up to 18 months following
the Employment Termination Date or as otherwise provided by COBRA and the
Executive shall pay all expenses relating to such coverage in accordance with
COBRA.
6. NONCOMPETITION; NONSOLICITATION. (a) General. The Executive acknowledges
that in the course of the Executive's
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employment with the Company the Executive has become familiar with trade secrets
and other confidential information concerning the Company and its subsidiaries
and that the Executive's services have been of special, unique and extraordinary
value to the Company and its subsidiaries.
(b) Noncompetition. The Executive agrees that during the period of the
Executive's employment with the Company and for a period of one year thereafter,
the Executive shall not in any manner, directly or indirectly, provide executive
or management services to any person or business entity that competes, directly
or indirectly, with the Company or any of its subsidiaries (it being understood
and agreed that the Executive has performed services and obtained confidential
information with respect to the Company and all such subsidiaries during the
year preceding the Employment Termination Date and prior thereto). This
restriction shall only apply to the Executive's activities in the United States
of America, it being understood and agreed that the Company's business, and the
Executive's activities as an employee of the Company, is not and has not been
limited to any particular region of the United States.
(c) Nonsolicitation. The Executive further agrees that during the period of
the Executive's employment with the Company, and for a period of one year
thereafter, the Executive shall not (i) in any manner, directly or indirectly,
induce or solicit or attempt to induce or solicit any employee of the Company or
any of its subsidiaries to terminate or abandon his or her employment for any
purpose whatsoever or in anyway interfere with the relationship of such employee
with the Company or its subsidiaries or (ii) in connection with any business to
which Section 6(b) applies, call on, service, solicit or otherwise do business
with any then current or prospective customer of the Company or any of its
subsidiaries.
(d) Exceptions. Nothing in this Section 6 shall prohibit the Executive from
being (i) a stockholder in a mutual fund or a diversified investment company or
(ii) an owner of not more than two percent of the outstanding stock of any class
of a corporation, any securities of which are publicly traded, so long as the
Executive has no active participation in the business of such corporation.
(e) Reformation. If, at any time of enforcement of this Section 6, a court
or an arbitrator holds that the restrictions stated herein are unreasonable
under circumstances then existing, the parties hereto agree that the maximum
period, scope or geographical area reasonable under such circumstances shall be
substituted for the stated period, scope or area and that the court or
arbitrator shall be allowed to revise the restrictions contained herein to cover
the maximum period, scope and area permitted by law. This Agreement shall not
authorize a court or arbitrator to increase or broaden any of the restrictions
in this Section 6.
7. NONDISPARAGEMENT. The Executive shall not directly (or through any other
person or entity) make any public or private statements (whether oral or in
writing) that are derogatory or damaging to the Company or any of its
subsidiaries or affiliates or any Released Party (as defined in Section 11),
including, but not limited to, its businesses, activities, operations, affairs,
reputation or prospects or any of their officers, employees, or current or
former directors or shareholders. The Company likewise agrees that none of its
executive officers will directly (or through any other person or entity) make
any public or private statements (whether oral or in writing) that are
derogatory or damaging to the Executive.
8. CONFIDENTIALITY. The Executive shall not, at any time during the
Executive's employment with the Company or thereafter, make use of or disclose,
directly or indirectly, any (i) trade secret or other confidential or secret
information of the Company or any of its subsidiaries or (ii) other technical,
business, proprietary or financial information of the Company or any of its
subsidiaries not available to the public generally ("Confidential Information"),
except to the extent that such Confidential Information (a) becomes a matter of
public record or is published in a newspaper, magazine or other periodical or on
electronic or other media available to the general public, other than as a
result of any act or omission of the Executive, (b) is required to be disclosed
by any law, regulation or order of any court or regulatory commission,
department or agency, provided that the Executive gives prompt notice of such
requirement to the Company to enable the Company to seek an appropriate
protective order, or (c) is required to be used or disclosed by the Executive to
perform properly the Executive's duties under this Agreement. Within five days
following the Employment Termination Date, the Executive shall surrender to the
Company all records, memoranda, notes, plans, reports, computer tapes and
software and other documents and data which constitute Confidential Information
which the Executive may then possess or have under the Executive's control
(together with all copies thereof). Notwithstanding anything to the contrary
contained herein, the provisions of the first sentence of this Section 8 shall
expire on the second anniversary of the Employment Termination Date but only
with respect to information which does not constitute or include information
which is a trade secret under applicable law.
9. INVENTIONS. The Executive agrees to disclose fully and promptly to the
Company in writing, upon the Company's request, all discoveries and
improvements, patentable or otherwise, trade secrets and ideas, writings and
copyrightable material which may be conceived by the Executive or developed or
acquired by the Executive during the Executive's employment with the Company or
the six-month period following the Employment Termination Date and which may
pertain directly or
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indirectly to the business of the Company or any of its subsidiaries
(collectively, "Inventions"). All Inventions shall constitute works made for
hire owned by the Company and shall be the exclusive property of the Company. To
the extent any Invention does not constitute a work made for hire, the Executive
hereby assigns to the Company, without further consideration, the Executive's
entire right, title and interest in and to such Invention, under patent,
copyright, trade secret and trademark law, in perpetuity or for the longest
period otherwise permitted by law. The Executive shall, upon the Company's
request, execute, acknowledge and deliver to the Company all instruments and do
all other acts which are necessary or in the Company's opinion desirable to
evidence more fully transfer of ownership of any Invention to the Company, or to
enable the Company or any of its subsidiaries to file and prosecute applications
for, and to acquire, maintain and enforce, all patents, trademarks and
copyrights in all countries.
10. SCOPE OF COVENANTS; REMEDIES. Without limiting the right of the Company
to pursue all other legal and equitable remedies available for violation by the
Executive of the covenants contained in Sections 6, 7, 8 and 9 hereof, it is
expressly agreed by the Executive and the Company that such other remedies
cannot fully compensate the Company for any such violation and that the Company
shall be entitled to a restraining order and injunctive relief to prevent any
such violation or any continuing violation thereof.
11. GENERAL RELEASES. (a) The Executive, on behalf of himself and anyone
claiming through him, hereby agrees not to xxx the Company or any of its
divisions, subsidiaries, affiliates or other related entities (whether or not
such entities are wholly owned) or any of the past or present directors,
officers, administrators, trustees, fiduciaries, employees, agents or attorneys
of the Company or any of such other entities, or the predecessors, successors or
assigns of any of them (hereinafter referred to as the "Released Parties"), and
agrees to release and discharge, fully, finally and forever, the Released
Parties from any and all claims, causes of action, lawsuits, liabilities, debts,
accounts, covenants, contracts, controversies, agreements, promises, sums of
money, damages, judgments and demands of any nature whatsoever, in law or in
equity, both known and unknown, asserted or not asserted, foreseen or
unforeseen, which the Executive ever had or may presently have against any of
the Released Parties arising from the beginning of time up to and including the
effective date of this Agreement, including, without limitation, all matters in
any way related to the Executive's employment by the Company or any of its
affiliates, the terms and conditions thereof, any failure to promote the
Executive and the termination or cessation of the Executive's employment with
the Company or any of its affiliates, and including, without limitation, any and
all claims arising under the Civil Rights Act of 1964, as amended, the Civil
Rights Act of 1991, the Civil Rights Act of 1866, the Age Discrimination in
Employment Act, the Older Workers' Benefit Protection Act, the Family and
Medical Leave Act, the Americans With Disabilities Act, the Employee Retirement
Income Security Act of 1974, the Wisconsin Fair Employment Act, the Wisconsin
Family Leave Act or any other federal, state, local or foreign statute,
regulation, ordinance or order, or pursuant to any common law doctrine;
provided, however, that nothing contained in this Section 11 shall apply to, or
release the Company from, any obligation of the Company contained in this
Agreement or any obligation of the Company to indemnify the Executive pursuant
to the Company's charter or by-laws or any indemnification agreement between the
Company and the Executive. The consideration offered herein is accepted by the
Executive as being in full accord, satisfaction, compromise and settlement of
any and all claims or potential claims, and the Executive expressly agrees that
he is not entitled to, and shall not receive, any further recovery of any kind
from the Company or any of the other Released Parties, and that in the event of
any further proceedings whatsoever based upon any matter released herein,
neither the Company nor any of the other Released Parties shall have any further
monetary or other obligation of any kind to the Executive, including any
obligation for any costs, expenses or attorneys' fees incurred by or on behalf
of the Executive. The Executive agrees that he has no present or future right to
employment with the Company or any of the other Released Parties and that he
will not apply for or otherwise seek employment with any of them.
(b) The Executive agrees that he shall execute the general release in
the form of Exhibit A hereto (the "Release") on the Employment Termination Date.
12. AUTHORITY. The Executive expressly represents and warrants that he is
the sole owner of the actual and alleged claims, demands, rights, causes of
action and other matters that are released herein; that the same have not been
transferred or assigned or caused to be transferred or assigned to any other
person, firm, corporation or other legal entity; and that he has the full right
and power to grant, execute and deliver the general release, undertakings and
agreements contained herein.
13. COOPERATION. The Executive agrees that, for the period commencing on
the Employment Termination Date and ending 90 days following the Employment
Termination Date, the Executive will be reasonably available to the Company to
respond to requests by the Company for information pertaining to or relating to
the Company, and its subsidiaries and affiliates which may be within the
knowledge of the Executive. The Executive will cooperate fully with the Company
in connection with any and all existing or future litigation or investigations
brought by or against the Company or any of their respective subsidiaries and
affiliates, whether administrative, civil or criminal in nature, in which and to
the extent the Company deems
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the Executive's cooperation necessary. The Executive understands that the
Company will reimburse the Executive for reasonable out-of-pocket expenses
incurred as a result of such cooperation. Nothing herein shall prevent the
Executive from communicating with or participating in any government
investigation. The Executive will act in good faith to furnish the information
and cooperation required by this Section 13 and the Company will act in good
faith so that the requirement to furnish such information and cooperation does
not create a hardship for the Executive or materially interfere with the
Executive's ability to serve as an employee or independent contractor.
14. REPRESENTATION. The Executive represents and warrants to the Company
that to the best of his knowledge he has disclosed to the Chief Executive
Officer of the Company all material facts of which he has knowledge relating to
the Company, including without limitation the operations and financial condition
of the Company.
15. ARBITRATION. Except as provided in Section 10 hereof, any dispute or
controversy between the Company and the Executive, whether arising out of or
relating to this Agreement, the breach of this Agreement, or otherwise, shall be
settled by arbitration in the State of Wisconsin, administered by the American
Arbitration Association, with any such dispute or controversy arising under this
Agreement being so administered in accordance with its Commercial Rules then in
effect, and judgment on the award rendered by the arbitrator may be entered in
any court having jurisdiction thereof. The arbitrator shall have the authority
to award any remedy or relief that a court of competent jurisdiction could order
or grant, including, without limitation, the issuance of an injunction. However,
either party may, without inconsistency with this arbitration provision, apply
to any court having jurisdiction over such dispute or controversy and seek
interim provisional, injunctive or other equitable relief until the arbitration
award is rendered or the controversy is otherwise resolved. Except as necessary
in court proceedings to enforce this arbitration provision or an award rendered
hereunder, or to obtain interim relief, neither a party nor an arbitrator may
disclose the existence, content or results of any arbitration hereunder without
the prior written consent of the Company and the Executive. The Company and the
Executive acknowledge that this Agreement evidences a transaction involving
interstate commerce. Notwithstanding any choice of law provision included in
this Agreement, the United States Federal Arbitration Act shall govern the
interpretation and enforcement of this arbitration provision.
16. SUCCESSORS; BINDING AGREEMENT. This Agreement shall inure to the
benefit of and be enforceable by the Executive and by his personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. In the event of the death of the Executive while any
amounts are payable to the Executive hereunder, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the terms of this
Agreement to such person or persons designated in writing by the Executive to
receive such amounts or, if no person is so designated, to the Executive's
estate.
17. NOTICES. All notices and other communications required or permitted
under this Agreement shall be in writing and shall be deemed to have been duly
given by a party hereto when delivered personally or by overnight courier that
guarantees next day delivery or five days after deposit in the United States
mail, postage prepaid to the following address of the other party hereto (or to
such other address of such other party as shall be furnished in accordance
herewith):
If to the Company, to:
Bone Care International, Inc.
0000 Xxxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Chief Executive Officer
With a copy to:
Sidley Xxxxxx Xxxxx & Xxxx
Bank One Plaza
00 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxxxx
If to the Executive, to:
Xxxxxx X. Xxxxxxx
---------------------------------
---------------------------------
---------------------------------
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18. GOVERNING LAW; VALIDITY. The interpretation, construction and
performance of this Agreement shall be governed by and construed and enforced in
accordance with the internal laws of the State of Wisconsin without regard to
the principle of conflicts of laws.
19. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and
understanding between the parties with respect to the subject matter hereof and
supersedes and preempts any prior understandings, agreements or representations
by or between the parties, written or oral, which may have related in any manner
to the subject matter hereof.
20. COUNTERPARTS. This Agreement may be executed in two counterparts, each
of which shall be deemed to be an original and all of which together shall
constitute one and the same instrument.
21. MISCELLANEOUS. No provision of this Agreement may be modified or waived
unless such modification or waiver is agreed to in writing and executed by the
Executive and by a duly authorized officer of the Company. No waiver by either
party hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. Failure by the
Executive or the Company to insist upon strict compliance with any provision of
this Agreement or to assert any right which the Executive or the Company 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.
22. NO ADMISSION. Nothing in this Agreement or the Releases is intended to,
or shall be construed as, an admission by the Company, any of the other Released
Parties or Executive that any of them has violated any law, interfered with any
right, breached any obligation or otherwise engaged in any improper or illegal
conduct with respect to any individual or entity or otherwise. The Executive and
the Company, for itself and the other Released Parties, hereby expressly denies
any such illegal or wrongful conduct.
23. ACKNOWLEDGMENT BY EXECUTIVE. BY EXECUTING THIS AGREEMENT, THE EXECUTIVE
EXPRESSLY ACKNOWLEDGES THAT HE HAS READ THIS AGREEMENT CAREFULLY, THAT HE FULLY
UNDERSTANDS ITS TERMS AND CONDITIONS, THAT HE HAS BEEN ADVISED TO CONSULT WITH
AN ATTORNEY PRIOR TO EXECUTING THIS AGREEMENT, THAT HE HAS BEEN ADVISED THAT HE
HAS 21 DAYS WITHIN WHICH TO DECIDE WHETHER OR NOT TO EXECUTE THIS AGREEMENT AND
THAT HE INTENDS TO BE LEGALLY BOUND BY IT. DURING A PERIOD OF SEVEN DAYS
FOLLOWING THE DATE OF HIS EXECUTION OF THIS AGREEMENT, THE EXECUTIVE SHALL HAVE
THE RIGHT TO REVOKE THE RELEASE CONTAINED IN SECTION 11 OF THIS AGREEMENT OF
CLAIMS UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT BY SERVING WITHIN SUCH
PERIOD WRITTEN NOTICE OF REVOCATION. IF THE EXECUTIVE EXERCISES HIS RIGHTS UNDER
THE PRECEDING SENTENCE, HE SHALL FORFEIT THE AMOUNT PAYABLE TO HIM PURSUANT TO
SECTION 3 OF THIS AGREEMENT.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by
a duly authorized officer of the Company and the Executive has executed this
Agreement as of the day and year first above written.
BONE CARE INTERNATIONAL, INC.
By: /S/ Xxxx X. Xxxxx.
---------------------------------------
Name: Xxxx X. Xxxxx
Title: President and CEO
EXECUTIVE:
/S/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
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