EXHIBIT 10.15
FORM OF
CHANGE OF CONTROL AGREEMENT
THIS CHANGE OF CONTROL AGREEMENT (the "Agreement"), is made on
this _____ day of , 2004, by and between Animas Corporation (the
"Company") and __________________ (the "Employee").
WHEREAS, the Employee serves as a senior executive of the
Company; and
WHEREAS, the Company and the Employee desire to establish
certain protections for the Employee in the event of his/her termination of
employment.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and promises contained herein, and intending to be bound
hereby, the parties agree as follows:
1. Definitions. As used herein:
1.1. "Base Salary" means, as of any given date, the annual
base rate of salary payable to the Employee by the Company, as then in effect;
provided, however, that in the case of a resignation by the Employee for the
Good Reason described in Section 1.8.4, "Base Salary" will mean the annual base
rate of salary payable to the Employee by the Company, as in effect immediately
prior to the reduction giving rise to the Good Reason.
1.2. "Board" means the Board of Directors of the Company.
1.3. "Cause" means mean, as determined by the Board:
1.3.1. any material breach by the Employee of any of
his/her obligations or representations under this Agreement;
1.3.2. gross negligence in the performance by the
Employee of the duties required by his/her Position, as communicated by the
Chairman,
1.3.3. a material violation, by the Employee, of the
Company's employee policies, as may be amended from time to time,
1.3.4. any conduct of the Employee involving any type
of disloyalty, dishonesty, breach of fiduciary duty, or willful misconduct,
including without limitation fraud, embezzlement, theft or dishonesty in the
course of his/her employment or engagement or the commission by the Employee of
any other action with the intent to materially injure the Company,
1.3.5. the Employee's conviction of, plea of guilty
to, or plea of nolo contendere to any felony, or any crime involving moral
turpitude,
1.3.6. the Employee's failure to satisfactorily pass
any drug screening test required by the Company and, if appropriate, any
supplemental security checks,
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1.3.7. the Employee's refusal, after explicit written
notice, to obey any lawful resolution of or direction by the Board which is
consistent with his/her duties to the Company,
1.3.8. the Employee's chronic absence from work
(excluding vacation, illness or leaves of absence approved by the Board); or
1.3.9. the Employee's unlawful use (including being
under the influence) or possession of illegal drugs on the Company's premises.
If termination for Cause is based upon Sections 1.3.1, 1.3.2, 1.3.3, 1.3.6,
1.3.7 or 1.3.8 and Board determines that the applicable breach, conduct or
violation is capable of being cured, then such applicable breach, conduct or
violation shall constitute a reason for a termination with Cause only if the
Board determines that the Employee has failed to cure such breach, conduct or
violation within thirty (30) days following written notice to Employee from the
Board.
1.4. "Change in Control" shall occur on the date that an event
set forth in any one of the following paragraphs is consummated on or before
December 31, 2006:
1.4.1. Any "person" (as such term is used in Sections
13(d) and 14(d) of the Exchange Act) is or becomes a "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing more than 50% of the combined voting
power of the then outstanding securities of the Company, as determined by the
Board of Directors of the Company; or
1.4.2. The closing of a merger, consolidation or
other form of business combination of the Company, or any direct or indirect
subsidiary of the Company, with another corporation and the shareholders of the
Company, immediately prior to such transaction, will not beneficially own,
immediately after such transaction, shares of the Company or the surviving
entity or any parent thereof, entitling the shareholders of the Company to vote
more than 50% of all shares of the Company, or the surviving entity or any
parent thereof which would be entitled in the election of directors (without
consideration of the rights of any class of stock to elect directors by a
separate class vote), or
1.4.3. Individuals who are Continuing Directors cease
to constitute a majority of the members of the Board. "Continuing Directors" for
this purpose being the members of the Board on the date of adoption of this
Agreement, provided that any person becoming a member of the Board subsequent to
such date whose election or nomination for election was supported by two-thirds
of the Directors who then comprised the Continuing Directors shall be considered
to be a Continuing Director.
1.5. "COBRA" means the Consolidated Omnibus Budget
Reconciliation Act of 1986, as amended.
1.6. "Code" means Internal Revenue Code of 1986, as amended.
1.7. "Disability" means the Employee's inability, by reason of
any physical or mental impairment, to substantially perform his/her regular
duties as contemplated by this
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Agreement, as determined by the Board in its sole discretion (after affording
the Employee the opportunity to present his/her case), which inability is
reasonably contemplated to continue for at least one year from its commencement
and at least 90 days from the date of such determination.
1.8. "Equity Plans" means the Animas Corporation 1996
Incentive Stock Plan, the Animas Corporation 1998 Equity Compensation Plan, the
Animas Corporation 2004 Equity Compensation Plan and any other equity-based
compensation plan that may be adopted by the Company for the purpose of
compensating its employees, directors and consultants generally.
1.9. "First Anniversary Date" is the three hundred and sixty
fifth (365th) day following the date of the consummation of a Change of Control
of the Company.
1.10. "Good Reason" means, without the Employee's prior
written consent, any of the following:
1.10.1. an adverse change in the Employee's title;
1.10.2. a reduction in the Employee's authority,
duties or responsibilities, or the assignment to the Employee of duties that are
inconsistent, in a material respect, with Employee's position;
1.10.3. the relocation of the Company's headquarters
more than twenty five (25) miles from West Chester, Pennsylvania, unless such
move reduces the Employee's commuting time;
1.10.4. a reduction in the Employee's Base Salary,
unless the percentage by which the Base Salary is reduced applies generally to
all other executive officers of the Company;
1.10.5. the Company's failure to pay or make
available any material payment or benefit due under this Agreement or any other
material breach by the Company of this Agreement.
However, the foregoing events or conditions will constitute Good Reason only if
the Employee provides the Company with written objection to the event or
condition within fifteen (15) days following the occurrence thereof, the Company
does not reverse or otherwise cure the event or condition within thirty (30)
days of receiving that written objection and the Employee resigns his/her
employment within fifteen (15) days following the expiration of that cure
period.
1.11. "Intellectual Property" means (a) all inventions
(whether patentable or unpatentable and whether or not reduced to practice), all
improvements thereto, and all patents and patent applications claiming such
inventions, (b) all trademarks, service marks, trade dress, logos, trade names,
fictitious names, brand names, brand marks and corporate names, together with
all translations, adaptations, derivations, and combinations thereof and
including all goodwill associated therewith, and all applications,
registrations, and renewals in connection therewith, (c) all copyrightable
works, all copyrights, and all applications, registrations, and renewals in
connection therewith, (d) all mask works and all applications, registrations,
and renewals in connection therewith, (e) all trade secrets (including research
and development,
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know-how, formulas, compositions, manufacturing and production processes and
techniques, methodologies, technical data, designs, drawings and
specifications), (f) all computer software (including data, source and object
codes and related documentation), (g) all other proprietary rights, (h) all
copies and tangible embodiments thereof (in whatever form or medium), or similar
intangible personal property which have been or are developed or created in
whole or in part by the Employee (i) at any time and at any place while the
Employee is employed by Company and which, in the case of any or all of the
foregoing, are related to and used in connection with the business of the
Company, or (ii) as a result of tasks assigned to the Employee by the Company.
1.12. "Proprietary Information" means any and all information
of the Company or of any subsidiary or affiliate of the Company. Such
Proprietary Information shall include, but shall not be limited to, the
following items and information relating to the following items: (a) all
intellectual property and proprietary rights of the Company (including without
limitation Intellectual Property) (b) computer codes or instructions (including
source and object code listings, program logic algorithms, subroutines, modules
or other subparts of computer programs and related documentation, including
program notation), computer processing systems and techniques, all computer
inputs and outputs (regardless of the media on which stored or located),
hardware and software configurations, designs, architecture and interfaces, (c)
business research, studies, procedures and costs, (d) financial data, (e)
distribution methods, (f) marketing data, methods, plans and efforts, (g) the
identities of actual and prospective customers, contractors and suppliers, (h)
the terms of contracts and agreements with customers, contractors and suppliers,
(i) the needs and requirements of, and the Company's course of dealing with,
actual or prospective customers, contractors and suppliers, (j) personnel
information, (k) customer and vendor credit information, and (l) any information
received from third parties subject to obligations of non-disclosure or non-use.
Failure by the Company to xxxx any of the Proprietary Information as
confidential or proprietary shall not affect its status as Proprietary
Information under the terms of this Agreement.
1.13. "Severance Payment" means an amount equal to one-year of
the Employee's Base Salary.
1.14. "Release" means a release substantially in the form
attached hereto as Exhibit A.
1.15. "Restrictive Covenants" means the covenants set forth in
Sections 6.1 and 6.2 of this Agreement.
1.16. "Total After-Tax Payments" means the total of all
"parachute payments" (as that term is defined in Section 280G(b)(2) of the Code)
made to or for the benefit of Executive (whether made hereunder or otherwise),
after reduction for all applicable federal taxes (including, without limitation,
the tax described in Section 4999 of the Code).
2. Termination in General. The Company may terminate the Employee's
employment at any time. The Employee may terminate his/her employment at any
time; provided that before the Employee may voluntarily terminate his/her
employment with the Company, she must provide thirty (30) days prior written
notice (or such shorter notice as is acceptable to the Company) to the Company.
Upon any termination of the Employee's employment with the
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Company for any reason: (a) the Employee (unless otherwise requested by the
Board) concurrently will resign any officer or director positions she holds with
the Company, its subsidiaries or affiliates, and (b) the Company will pay to the
Employee all accrued but unpaid Base Salary through the date of termination, and
(c) except as explicitly provided in Section 3.2, or otherwise pursuant to
COBRA, all Base Salary, other compensation and benefits will cease and the
Company will have no further liability or obligation to the Employee. The
foregoing will not be construed to limit the Employee's right to payment or
reimbursement for claims incurred under any insurance contract funding an
employee benefit plan, policy or arrangement of the Company in accordance with
the terms of such insurance contract.
3. Certain Benefits Following a Change in Control.
3.1. Acceleration of Option Vesting. Subject to reduction or
elimination pursuant to Section 4, on the date of a consummation of a Change of
Control, (a) to the extent that an option award that has been issued to Employee
under the Equity Plans is subject to a vesting and/or unexercisability period
that extends longer than twenty-four (24) months from such date, then that
portion of the entire option award that is then unvested and/or unexercisable
and that would have become vested and/or exercisable in the final twenty-four
(24) months of such vesting and/or unexercisability period shall become vested
and immediately exercisable on the date of a Change of Control and (b) to the
extent that an option award that has been issued to the Employee under the
Equity Plans is subject to a vesting and/or non-exercisability period that is
shorter than twenty-four (24) months from such date, then all of the option
award shall become vested and immediately exercisable on the date of a Change of
Control.
3.2. Severance Benefits. If the Employee's employment with the
Company ceases during the period commencing on or after the thirtieth (30th) day
immediately preceding the date of the consummation of a Change of Control and
ending on the First Anniversary Date as a direct result of a termination by the
Company without Cause or a resignation by the Employee for Good Reason, then in
addition to the payments and benefits provided for in Section 2 and subject to
reduction or elimination pursuant to Section 4 and the requirements of Section
5, the Company will pay to the Employee the Severance Amount no later than forty
five (45) days following such date of termination.
3.3. Retention Benefit. If the Employee has remained employed
by the Company from the date of the consummation of a Change of Control through
the day immediately following the First Anniversary Date, the Company will pay
to the Employee the Severance Amount no later than forty five (45) days
following the First Anniversary Date.
3.4. No Double Benefits. Without limiting the generality of
Section 3.2 and Section 3.3, in no event shall the Employee be entitled to
receive payments under both Section 3.2 and Section 3.3. If amounts paid or
payable to the Employee pursuant to Section 3.2, no amounts shall be paid or
payable to Employee pursuant to Section 3.3. If amounts paid or payable to the
Employee pursuant to Section 3.3, no amounts shall be paid or payable to
Employee pursuant to Section 3.2.
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4. Parachute Payments.
4.1. Generally. All amounts payable to the Employee under this
Agreement will be made without regard to whether the deductibility of such
payments (considered together with any other entitlements or payments otherwise
paid or due to the Employee) would be limited or precluded by Section 280G of
the Code and without regard to whether such payments would subject the Employee
to the excise tax levied under Section 4999 of the Code; provided, however, that
if the Total After-Tax Payments (as defined below) paid to or on for the benefit
of the Executive would be increased by the limitation or elimination of any
amount payable under this Agreement, then the Board will reduce or, or if
necessary, eliminate any or all amounts payable under this Agreement to the
extent necessary to maximize the Total After-Tax Payments.
4.2. Measurements and Adjustments. The determination of the
amount of the payments and benefits paid and payable to the Employee and whether
and to what extent reduction or the elimination of any amounts payable under
Section 4.1 are required to be made will be made at the Company's expense by an
independent auditor selected by the Company, which auditor shall provide
Employee and the Company with detailed supporting calculations with respect to
its determination within fifteen (15) business days of the receipt of notice
from the Employee or the Company that the Employee has received or will receive
a payment that is potentially subject to the Parachute Excise Tax. Any
determination by the auditor shall be binding upon the Company and the Employee.
4.3. Underpayment or Overpayment. In the event of any
underpayment or overpayment to the Employee (determined after the application of
Section 4.1), the amount of such underpayment or overpayment will be, as
promptly as practicable, paid by the Company to the Employee or refunded by the
Employee to the Company, as the case may be.
5. Timing of Payments Following Termination. Notwithstanding provision
of this Agreement, the payments and benefits described in Sections 3 and 4 are
conditioned on the Employee's execution and delivery to the Company of a Release
in a manner consistent with the Older Workers Benefit Protection Act and any
similar state law that is applicable. The amounts described in Section 3 will
begin to be paid (as required by Section 3), as soon as the Release becomes
irrevocable following the Employee's execution and delivery of the Release.
6. Restrictive Covenants. As consideration for all of the payments to be
made to the Employee pursuant to Section 3 of this Agreement and in addition to
his/her obligations under the Confidentiality and Restrictive Covenant Agreement
by and between the Employee and the Agreement dated ______ (the "Confidentiality
Agreement"), the Employee agrees to be bound by the Restrictive Covenants set
forth in this Section 6. The Restrictive Covenants will apply without regard to
whether any termination of the Employee's employment is initiated by the Company
or the Employee, and without regard to the reason for that termination.
6.1. Confidentiality. The Employee recognizes and acknowledges
that the Proprietary Information is a valuable, special and unique asset of the
business of the Company. As a result, both during the Employee's employment by
the Company and thereafter, the Employee will not, without the prior written
consent of the Company, for any reason either
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directly or indirectly divulge to any third-party or use for his/her own
benefit, or for any purpose other than the exclusive benefit of the Company, any
Proprietary Information; provided, however, that the Employee may during his/her
employment by the Company disclose Proprietary Information to third parties as
may be necessary or appropriate to the effective and efficient discharge of
his/her duties as an employee hereunder (provided that the third party recipient
has signed the Company's then-approved confidentiality or similar agreement) or
as such disclosures may be required by law. If the Employee or any of his/her
representatives becomes legally compelled to disclose any of the Proprietary
Information, the Employee will provide the Company with prompt written notice so
that the Company may seek a protective order or other appropriate remedy. The
non-disclosure and non-use obligations with respect to Proprietary Information
set forth in this Section 6.2 shall not apply to any information that is in or
becomes part of the public domain through no improper act on the part of the
Employee.
6.2. Property of the Company.
6.2.1. Proprietary Information. All right, title and
interest in and to Proprietary Information will be and remain the sole and
exclusive property of the Company. The Employee will not remove from the
Company's offices or premises any documents, records, notebooks, files,
correspondence, reports, memoranda or similar materials of or containing
Proprietary Information, or other materials or property of any kind belonging to
the Company unless necessary or appropriate in the performance of his/her duties
to the Company. If the Employee removes such materials or property in the
performance of his/her duties, the Employee will return such materials or
property to their proper files or places of safekeeping as promptly as possible
after the removal has served its specific purpose. The Employee will not make,
retain, remove and/or distribute any copies of any such materials or property,
or divulge to any third person the nature of and/or contents of such materials
or property or any other oral or written information to which he may have access
or become familiar in the course of his/her employment, except to the extent
necessary in the performance of his/her duties. Upon termination of the
Employee's employment with the Company, he will leave with the Company or
promptly return to the Company all originals and copies of such materials or
property then in his/her possession.
6.3. Acknowledgements. The Employee acknowledges that the
Restrictive Covenants are reasonable and necessary to protect the legitimate
interests of the Company and its affiliates and that the duration and geographic
scope of the Restrictive Covenants are reasonable given the nature of this
Agreement and the position the Employee holds within the Company. The Employee
further acknowledges that the Restrictive Covenants are included herein in order
to induce the Company to enter into this Agreement and that the Company would
not have entered into this Agreement in the absence of the Restrictive
Covenants.
6.4. Remedies and Enforcement Upon Breach.
6.4.1 Specific Enforcement. The Employee acknowledges
that any breach by him/her, willfully or otherwise, of the Restrictive Covenants
will cause continuing and irreparable injury to the Company for which monetary
damages would not be an adequate remedy. The Employee shall not, in any action
or proceeding to enforce any of the provisions of this Agreement, assert the
claim or defense that such an adequate remedy at law exists. In the
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event of any such breach by the Employee, the Company shall have the right to
enforce the Restrictive Covenants by seeking injunctive or other relief in any
court, without any requirement that a bond or other security be posted, and this
Agreement shall not in any way limit remedies of law or in equity otherwise
available to the Company.
6.4.2. Judicial Modification. If any court determines
that any of the Restrictive Covenants, or any part thereof, is unenforceable
because of the duration of such provision, such court shall have the power to
modify such provision and, in its modified form, such provision shall then be
enforceable.
6.4.3. Accounting. If the Employee breaches any of
the Restrictive Covenants, the Company will have the right and remedy to require
the Employee to account for and pay over to the Company all compensation,
profits, monies, accruals, increments or other benefits derived or received by
the Employee as the result of such breach. This right and remedy will be in
addition to, and not in lieu of, any other rights and remedies available to the
Company under law or in equity.
7. Miscellaneous.
7.1. No Liability of Officers and Directors for Severance Upon
Insolvency. Notwithstanding any other provision of the Agreement and intending
to be bound by this provision, the Employee hereby (a) waives any right to claim
payment of amounts owed to him/her, now or in the future, pursuant to this
Agreement from directors or officers of the Company if the Company becomes
insolvent, and (b) fully and forever releases and discharges the Company's
officers and directors from any and all claims, demands, liens, actions, suits,
causes of action or judgments arising out of any present or future claim for
such amounts.
7.2. Effective Date; Termination. Notwithstanding any other
provision of this Agreement to the contrary, this Agreement shall become
effective on the date the Company's registration statement on a Form S-1 is
declared effective by the Securities and Exchange Commission (the "Effective
Date"); provided, however, that the Agreement shall immediately become null and
void if such Effective Date does not occur on or prior to June 30, 2004.
Notwithstanding any other provision of this Agreement to the contrary, this
Agreement shall terminate and no amounts shall be paid hereunder if a Change of
Control is not consummated on or prior to December 31, 2006.
7.3. Successors and Assigns. The Company may assign this
Agreement to any successor to all or substantially all of its assets and
business by means of liquidation, dissolution, merger, consolidation, transfer
of assets, or otherwise. The rights of the Employee hereunder are personal to
the Employee and may not be assigned by him/her.
7.4. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Pennsylvania
without regard to the principles of conflicts of laws.
7.5. Enforcement. Any legal proceeding arising out of or
relating to this Agreement will be instituted in the United States District
Court for the Eastern District of Pennsylvania, or if that court does not have
or will not accept jurisdiction, in any court of general
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jurisdiction in the Commonwealth of Pennsylvania, and the Employee and the
Company hereby consent to the personal and exclusive jurisdiction of such
court(s) and hereby waive any objection(s) that they may have to personal
jurisdiction, the laying of venue of any such proceeding and any claim or
defense of inconvenient forum.
7.6. Waivers; Reparability. The waiver by either party hereto
of any right hereunder or any failure to perform or breach by the other party
hereto shall not be deemed a waiver of any other right hereunder or any other
failure or breach by the other party hereto, whether of the same or a similar
nature or otherwise. No waiver shall be deemed to have occurred unless set forth
in a writing executed by or on behalf of the waiving party. No such written
waiver shall be deemed a continuing waiver unless specifically stated therein,
and each such waiver shall operate only as to the specific term or condition
waived. If any provision of this Agreement shall be declared to be invalid or
unenforceable, in whole or in part, such invalidity or unenforceability shall
not affect the remaining provisions hereof which shall remain in full force and
effect.
7.7. Notices. All notices and communications that are required
or permitted to be given hereunder shall be in writing and shall be deemed to
have been duly given when delivered personally or upon mailing by registered or
certified mail, postage prepaid, return receipt requested, as follows:
If to the Company, to:
Animas Corporation
000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Chief Financial Officer
Fax: 000-000-0000
With a copy to:
Xxxxxx Xxxxxxxx LLP
3000 Two Xxxxx Square
00xx & Xxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx, Esquire
Fax: 000-000-0000
If to Employee, to the address on file with the Company
or to such other address as may be specified in a notice given by one party to
the other party hereunder.
7.8. Entire Agreement; Amendments. This Agreement and the
attached exhibit and the Confidentiality Agreement contain the entire agreement
and understanding of the parties relating to the provision of change of control
benefits, and merges and supersedes all prior and contemporaneous discussions,
agreements and understandings of every nature relating to that
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subject. This Agreement may not be changed or modified, except by an Agreement
in writing signed by each of the parties hereto.
7.9. Withholding. The Company will withhold from any payments
due to Employee hereunder, all taxes, FICA or other amounts required to be
withheld pursuant to any applicable law.
7.10. Headings Descriptive. The headings of sections and
paragraphs of this Agreement are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Agreement.
7.11. Counterparts. This Agreement may be executed in multiple
counterparts, each of which will be deemed to be an original, but all of which
together will constitute but one and the same instrument.
IN WITNESS WHEREOF AND INTENDING TO BE LEGALLY BOUND, the
parties hereto have executed this Agreement on the date and year first above
written.
ANIMAS CORPORATION
___________________________________
By:
Title:
EMPLOYEE
___________________________________
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Exhibit A
RELEASE AND NON-DISPARAGEMENT AGREEMENT
THIS RELEASE AND NON-DISPARAGEMENT AGREEMENT (this "Release") is made
as of the ___ day of _______, _____ by and between ____________________ (the
"Employee") and Animas Corporation (the "Company").
WHEREAS, the Employee's employment as an executive of the Company has
terminated; and
WHEREAS, pursuant to Section 3 of the Change of Control Agreement by
and between the Company and the Employee dated as of __________ ___, 2004 (the
"Change of Control Agreement"), the Company has agreed to pay the Employee
certain amounts and to provide her with certain rights and benefits, subject to
the execution of this Release.
NOW THEREFORE, in consideration of these premises and the mutual
promises contained herein, and intending to be legally bound hereby, the parties
agree as follows:
SECTION 1. Consideration. The Employee acknowledges that: (a) the payments,
rights and benefits set forth in Section 3 of the Change of Control Agreement
constitute full settlement of all of her rights under the Change of Control
Agreement, (b) he/she has no entitlement under any other severance or similar
arrangement maintained by the Company, and (c) except as otherwise provided
specifically in this Release, the Company does not and will not have any other
liability or obligation to the Employee. The Employee further acknowledges that,
in the absence of her execution of this Release, the payments and benefits
specified in Section 3 of the Change of Control Agreement would not otherwise be
due to the Employee.
SECTION 2. Release and Covenant Not to Xxx. The Employee hereby fully and
forever releases and discharges the Company and its parents, affiliates and
subsidiaries, including all predecessors and successors, assigns, officers,
directors, trustees, employees, agents and attorneys, past and present, from any
and all claims, demands, liens, agreements, contracts, covenants, actions,
suits, causes of action, obligations, controversies, debts, costs, expenses,
damages, judgments, orders and liabilities, of whatever kind or nature, direct
or indirect, in law, equity or otherwise, whether known or unknown, arising
through the date of this Release, out of her employment by the Company or the
termination thereof, including, but not limited to, any claims for relief or
causes of action under the Age Discrimination in Employment Act, 29 U.S.C.
Section 621 et seq., or any other federal, state or local statute, ordinance or
regulation regarding discrimination in employment and any claims, demands or
actions based upon alleged wrongful or retaliatory discharge or breach of
contract under any state or federal law. The Employee expressly represents that
he/she has not filed a lawsuit or initiated any other administrative proceeding
against the Company (including for purposes of this Section 2, its parents,
affiliates and subsidiaries), and that he/she has not assigned any claim against
the Company (or its parents, affiliates and subsidiaries) to any other person or
entity. The Employee further promises not to initiate a lawsuit or to bring any
other claim against the Company (or its parents, affiliates and subsidiaries)
arising out of or in any way related to her employment by the Company or the
termination of that employment. The forgoing will not be deemed to release the
Company from (a) claims solely to enforce this Release, (b) claims solely to
enforce Section 3 of the Change of Control Agreement, (c) claims for
indemnification under the Company's By-Laws, under any indemnification agreement
between the Company and the Employee or under any similar agreement or (d)
claims solely to enforce the terms of any equity incentive award agreement
between the Employee and the
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Company. This Release will not prevent the Employee from filing a charge with
the Equal Employment Opportunity Commission (or similar state agency) or
participating in any investigation conducted by the Equal Employment Opportunity
Commission (or similar state agency); provided, however, that any claims by the
Employee for personal relief in connection with such a charge or investigation
(such as reinstatement or monetary damages) would be barred.
SECTION 3. Restrictive Covenants. The Employee acknowledges that the terms of
Section 6 of the Change in Control Agreement will survive the termination of her
employment. The Employee affirms that the restrictions contained in Section 6 of
the Change in Control Agreement are reasonable and necessary to protect the
legitimate interests of the Company, that he/she received adequate consideration
in exchange for agreeing to those restrictions and that he/she will abide by
those restrictions.
SECTION 4. Non-Disparagement. The Company (meaning, solely for this purpose,
Company's directors and executive officers and other individuals authorized to
make official communications on Company's behalf) will not disparage the
Employee or the Employee's performance or otherwise take any action which could
reasonably be expected to adversely affect the Employee's personal or
professional reputation. Similarly, the Employee will not disparage Company or
any of its directors, officers, agents or employees or otherwise take any action
which could reasonably be expected to adversely affect the reputation of the
Company or the personal or professional reputation of any of the Company's
directors, officers, agents or employees.
SECTION 5. Cooperation. The Employee further agrees that, subject to
reimbursement of her reasonable expenses, he/she will cooperate fully with the
Company and its counsel with respect to any matter (including litigation,
investigations, or governmental proceedings) which relates to matters with which
the Employee was involved during her employment with Company. The Employee shall
render such cooperation in a timely manner on reasonable notice from the
Company.
SECTION 6. Rescission Right. The Employee expressly acknowledges and recites
that (a) he/she has read and understands this Release in its entirety, (b)
he/she has entered into this Release knowingly and voluntarily, without any
duress or coercion; (c) he/she has been advised orally and is hereby advised in
writing to consult with an attorney with respect to this Release before signing
it; (d) he/she was provided 21 calendar days after receipt of the Release to
consider its terms before signing it (or such longer period as is required for
this Release to be effective under the Age Discrimination in Employment Act or
any similar state law); and (e) he/she is provided seven (7) calendar days from
the date of signing to terminate and revoke this Release (or such longer period
required by applicable state law), in which case this Release shall be
unenforceable, null and void. The Employee may revoke this Release during those
seven (7) days (or such longer period required by applicable state law) by
providing written notice of revocation to the Company.
SECTION 7. Challenge. If the Employee violates or challenges the enforceability
of any provisions of the Noncompetition Agreement or this Release, no further
payments, rights or benefits under Section 3 of the Change of Control Agreement
will be due to the Employee.
SECTION 8. Miscellaneous.
8.1. No Admission of Liability. This Release is not to be construed
as an admission of any violation of any federal, state or local statute,
ordinance or regulation or of any duty owed by
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the Company to the Employee. There have been no such violations, and the Company
specifically denies any such violations.
8.2. No Reinstatement. The Employee agrees that he/she will not
apply for reinstatement with the Company or seek in any way to be reinstated,
re-employed or hired by the Company in the future.
8.3. Successors and Assigns. This Release shall inure to the
benefit of and be binding upon the Company and the Employee and their respective
successors, executors, administrators and heirs. The Employee may make any
assignment of this Release or any interest herein, by operation of law or
otherwise. The Company may assign this Release to any successor to all or
substantially all of its assets and business by means of liquidation,
dissolution, merger, consolidation, transfer of assets, or otherwise.
8.4. Severability. Whenever possible, each provision of this
Release will be interpreted in such manner as to be effective and valid under
applicable law. However, if any provision of this Release is held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability will not affect any other provision, and this Release will be
reformed, construed and enforced as though the invalid, illegal or unenforceable
provision had never been herein contained.
8.5. Entire Agreement; Amendments. Except as otherwise provided
herein, this Release contains the entire agreement and understanding of the
parties hereto relating to the subject matter hereof, and merges and supersedes
all prior and contemporaneous discussions, agreements and understandings of
every nature relating to the subject matter hereof. This Release may not be
changed or modified, except by an Agreement in writing signed by each of the
parties hereto.
8.6. Governing Law. This Release shall be governed by, and enforced
in accordance with, the laws of the Commonwealth of Pennsylvania without regard
to the application of the principles of conflicts of laws.
8.7. Counterparts and Facsimiles. This Release may be executed,
including execution by facsimile signature, in one or more counterparts, each of
which shall be deemed an original, and all of which together shall be deemed to
be one and the same instrument.
IN WITNESS WHEREOF, the Company has caused this Release to be
executed by its duly authorized officer, and the Employee has executed this
Release, in each case as of the date first above written.
ANIMAS CORPORATION
___________________________________
By:
Title:
EMPLOYEE
___________________________________
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