EXHIBIT 10.33
KING PHARMACEUTICALS, INC.
SEVERANCE PAY PLAN: TIER I
WAIVER, RELEASE AND NON-SOLICITATION,
NONCOMPETE AND NONDISCLOSURE AGREEMENT
1. In consideration for the Severance Pay and/or Severance Benefits to
be provided to me under the terms of the King Pharmaceuticals, Inc. Severance
Pay Plan: Tier I ('Plan'), and after having had a full, unhurried opportunity to
consult with an attorney of my choice with respect to this Agreement, including
its consent and final binding effect, I, on behalf of myself and my heirs,
executors, administrators, attorneys and assigns, hereby waive, release and
forever discharge King Pharmaceuticals, Inc. (hereinafter referred to as the
"Company") and its parent (if any), subsidiaries, divisions and Affiliates (as
defined in the Plan), whether direct or indirect, its and their joint ventures
and joint venturers (including its and their respective directors, officers,
employees, shareholders, partners and agents, past, present, and future), and
each of its and their respective successors and assigns (hereinafter
collectively referred to as "Releasees"), from any and all known or unknown
demands, damages, actions, causes of action, claims, losses, or liabilities of
any kind which have or could be asserted against the Releasees arising out of or
related to my employment with and/or the Separation of my employment with the
Company and/or any of the other Releasees and/or any other occurrence from the
beginning of time up to and including the date of this Agreement, including but
not limited to:
(a) All claims, actions, causes of action or liabilities
arising under Title VII of the Civil Rights Act of 1964, as amended,
the Age Discrimination in Employment Act, as amended, the Employee
Retirement Income Security Act, as amended, the Rehabilitation Act of
1973, as amended, the Americans with Disabilities Act, as amended, the
Family and Medical Leave Act, as amended, and/or any other federal,
state, municipal, or local employment discrimination statutes
(including, but not limited to, claims based on age, sex, attainment of
benefit plan rights, race, religion, national origin, marital status,
sexual orientation, ancestry, harassment, parental status, handicap,
disability, retaliation, and veteran status); and/or
(b) All claims, actions, causes of action or liabilities
arising under any other federal, state, municipal, or local statute,
law, ordinance or regulation; and/or
(c) Any and all other claims whatsoever including, but not
limited to, claims for severance pay, claims based upon breach of
contract, wrongful Separation, retaliatory discharge, defamation,
intentional infliction of emotional distress, tort, personal injury,
invasion of privacy, violation of public policy, negligence and/or any
other common law, statutory or other claim whatsoever arising out of or
relating to my employment with and/or the Separation of my employment
with the Company and/or any of the other Releasees.
2. I also agree never to xxx any of the Releasees or become party to a
lawsuit on the basis of any claim of any type whatsoever arising out of or
related to my employment with and/or the Separation of my employment with the
Company and/or any of the other Releasees.
I further agree not to make any public statement or statements, to the
press or otherwise, concerning the Company's Board of Directors, management,
business objectives, status of its securities, its management practices,
products, or other sensitive information, without first receiving the written
consent of the Company's Executive Vice President of Human Resources and its
Chief Executive Officer, and I will not take any action which would cause the
Company, or its employees or agents, embarrassment or humiliation or otherwise
cause or contribute to the Company, or any such person, being held in disrepute
by the general public or the Company's employees, clients, or customers.
3. I further acknowledge and agree in the event that I breach the
provisions of paragraph 2 above and/or the Non-Solicitation, Non-Compete or
Nondisclosure provisions of the Plan, (a) the Company shall not be obligated to
continue payment of the Severance Pay, and the availability of Severance
Benefits to me, (b) I shall be obligated to repay to the Company upon written
demand ninety percent (90%) of the amount of Severance Pay and cost of the
Severance Benefits paid or provided to me, plus simple interest at the rate
often percent (10%) per annum from the date of payment of such pay and/or
benefits, and (c) I shall be obligated to pay the Company its costs and expenses
in enforcing the provisions of this Agreement and the Plan (including court
costs, expenses and reasonable legal fees), and the foregoing shall not affect
the validity of this Agreement and shall not be deemed a penalty or a
forfeiture. In the event I breach the notice requirements of Section 4(b) of the
Plan regarding eligibility for alternate welfare plan coverage after a
Qualifying Separation, I understand and agree that the provisions of the prior
sentence shall apply, but solely with respect to the Severance Benefits for
which such required notice was not timely provided. Executive specifically
acknowledges that the restrictions, prohibitions, and other provisions of this
paragraph and the Non-Solicitation, Non-Compete and Nondisclosure restrictions
of the Plan are reasonable, fair, and equitable in scope, terms, and duration,
and are a material inducement to the Company to provide the benefits described
in the Plan. Executive agrees that the obligations in this Agreement are
necessary in order to protect the Company's legitimate business interests; its
trade secrets and confidential information; its relationships with its customers
and distributors; its investment in its employees; and its goodwill, in light of
the nature and extent of the business conducted by the Company. Executive
further agrees that upon any breach or threatened breach of these obligations,
the Company shall be entitled to injunctive relief, both temporary and
permanent, without the necessity of posting a bond, as well as, and in addition
to, all other available remedies, including such damages as may be permitted by
law, all of which shall be cumulative and not exclusive.
4. I further waive my right to any monetary recovery should any
federal, state, or local administrative agency pursue any claims on my behalf
arising out of or related to my employment with and/or separation from
employment with the Company and/or any of the other Releasees.
5. I further waive, release, and discharge Releasees from any
reinstatement rights which I have or could have and I acknowledge that I have
not suffered any on-the-
job injury for which I have not already filed a claim; and I hereby
unconditionally agree that I shall not now or at any time in the future, either
individually or through others, as an independent contractor or otherwise in any
capacity, directly or indirectly, apply for or otherwise seek employment or any
other arrangement with the Company and/or any of the other Releasees to provide
services to or on behalf of any of the same, without the prior written consent
of the Executive Vice President of Human Resources of the Company.
6. I acknowledge that I have been given at least forty-five (45) days
to consider this Waiver and Release Agreement thoroughly and I was advised to
consult with my personal attorney, if desired, before signing below.
7. I understand that I may revoke this Agreement within seven (7) days
after its signing and that any revocation must be made in writing and submitted
within such seven day period to the Plan Administrator. I further understand
that if I revoke this Agreement, I shall not receive Severance Pay or Severance
Benefits.
8. I FURTHER UNDERSTAND THAT THIS AGREEMENT INCLUDES A RELEASE OF ALL
KNOWN AND UNKNOWN CLAIMS.
9. I understand that nothing in this Agreement shall affect any
obligation which the Company may have to indemnify me pursuant to Section 9 of
the Company's charter or Article VII of the Company's bylaws.
10. I acknowledge and agree that this Agreement is given in exchange
for consideration in addition to anything of value to which I am already
entitled.
11. I acknowledge and agree that if any provision of this Agreement is
found, held or deemed by a court of competent jurisdiction to be void, unlawful
or unenforceable under any applicable statute or controlling law, the remainder
of this Agreement shall continue in full force and effect. If any portion of
this Agreement or the Plan relating to Non-Solicitation, Non-Compete or
Nondisclosure is held by a court of competent jurisdiction to be unreasonable,
unenforceable, arbitrary, or against public policy, then such portion shall be
considered divisible as to time, geographical area, and prohibited activities,
and the remaining provisions shall remain in effect, and the parties agree to
reasonable modification, including but not limited to modifications as to time,
geographical area, and prohibited activities, as the court shall decide in order
to reflect the intent of the parties.
12. This Agreement is deemed made and entered into in the State of
Tennessee, and in all respects shall be interpreted, enforced and governed under
the internal laws of the State of Tennessee, to the extent not preempted by
applicable federal law.
Jurisdiction and venue over any dispute under this Agreement shall lie
solely in the Law Court for Xxxxxxxx County, Tennessee, Bristol Division.
13. I further acknowledge and agree that I have carefully read and
fully understand all of the provisions of this Agreement and that I voluntarily
and knowingly enter into this Agreement by signing below. No modification of
this Agreement shall be effective unless made in writing and signed by both
Executive and the Company.
14. ACKNOWLEDGMENT OF COMPLIANCE
Because this Agreement includes a release and waiver as to claims under
the AGE DISCRIMINATION IN EMPLOYMENT ACT ("ADEA"), your signature below
acknowledges that it complies with the Older Worker Benefit Protection Act
("OWBPA") of 1990 and further acknowledges that you confirm, understand, and
agree to the terms and conditions of this Agreement; that these terms are
written in lay person terms, and that you have been fully advised of your right
to seek the advice and assistance of consultants, including an attorney, as well
as tax advisors, to review this agreement.
It also acknowledges that you do not waive any rights or claims under
the ADEA that may arise after the date this Agreement is signed by you, and
specifically, that under this Agreement, you are receiving consideration beyond
anything of value to which you are already entitled. It is understood by you
that you have been advised to consult with an attorney of your choice before
signing. You also understand that you have up to forty-five (45) full days to
consider whether to sign this release and agreement. By signing this release on
the date shown below, you knowingly and voluntarily elect to forego waiting the
portion then remaining of the forty-five (45) full days to consider whether to
sign this release and agreement.
15. RIGHT OF REVOCATION
Your signature also acknowledges that, in compliance with the OWBPA
condition above, you have been fully advised by the Company of your right to
revoke and nullify this release and agreement, which right must be exercised, if
at all, within seven (7) days of the date of your signature. Any revocation of
this Agreement must be in writing, addressed to the Company, to the attention of
the Plan Administrator of the King Pharmaceuticals, Inc. Severance Pay Plan:
Tier I, and the Company must be notified within the foregoing seven (7) day
period. This Agreement will not become effective or enforceable until the
expiration of the 7-day period.
16. BINDING EFFECT
Upon signing this agreement, it will become effective and binding upon
you and the Company and upon the respective successors, assigns, heirs and
personal representatives as is discussed in paragraph 1 above.
Xxxx Xxxxxxx
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Name of Eligible Executive -- Please Print
/s/ Xxxx Xxxxxxx
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(Signature of Eligible Executive)
14 December 2005
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(Date)
PLEASE RETURN TO:
Plan Administrator
King Pharmaceuticals, Inc.
Severance Pay Plan: Tier I
