Exhibit 11.01
SEVERANCE AGREEMENT
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THIS AGREEMENT ("Agreement") is made by and between IGI, INC. ("IGI"),
a Delaware corporation, with its principal place of business at 000 Xxxxxxx
Xxxxxx, Xxxxx, Xxx Xxxxxx 00000, and XXXX X. XXXXXXX ("Xxxxxxx") residing at
00 Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000.
RECITALS
WHEREAS, Xxxxxxx was employed by IGI as its President and Chief
Operating Officer from September 2000 to May 2001, and as IGI's President and
Chief Executive Officer from May 2001 to August 15, 2003; and
WHEREAS, the parties hereto mutually agreed to the termination of
Xxxxxxx'x employment with IGI as of August 15, 2003; and
WHEREAS, Xxxxxxx and IGI wish to resolve by this Agreement any and all
claims and/or disputes of any kind whatsoever that may exist between them
relating to Xxxxxxx'x employment with IGI, the termination of Xxxxxxx'x
employment with IGI and/or any other matter; and
WHEREAS, the parties agree that any and all payments and/or other
benefits of any kind whatsoever, if any, that Xxxxxxx is or may claim to be
entitled to receive from IGI in conjunction with his employment with IGI
and/or the termination thereof shall be exclusively and conclusively governed
by the terms of this Agreement, and Xxxxxxx agrees that in accordance with
the terms hereof he shall be forever prohibited from seeking and/or claiming
any additional compensation, benefits, damages, remedies and/or any other
payments of any kind whatsoever from IGI,
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which is acknowledged by the parties hereto, IGI and Xxxxxxx
agree as follows:
1. Incorporation of Recitals. The Recitals set forth above are
hereby incorporated into and made a part of this Agreement.
2. Effective Date. Subject to the terms of Paragraph 15 of this
Agreement and Xxxxxxx' rights thereunder, the parties expressly
acknowledge and agree that the effective date of this Agreement
is August 15, 2003 (the "Effective Date"), irrespective of the
date upon which it was formally executed by the parties.
3. Employment Termination Date. The parties expressly acknowledge
and agree that Xxxxxxx'x employment with IGI is terminated as of
August
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15, 2003. As of August 15, 2003, Xxxxxxx resigns from any and all
officerships and directorships he holds with IGI, and thereby
waives, relieves, relinquishes, renounces and surrenders as of
August 15, 2003, any and all rights, powers, obligations,
authorities and/or benefits of any kind whatsoever with respect
thereto. Xxxxxxx agrees to fully cooperate with IGI to accomplish
such resignations, including without limitation, execution of any
and all documents as may be necessary to effectuate such
resignations. Xxxxxxx further agrees, warrants and represents
that as of August 15, 2003, and forever thereafter, he shall not
represent and/or hold himself out as an employee, officer and/or
director of IGI.
4. Payments to Xxxxxxx.
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A. On the Effective Date, IGI shall pay Xxxxxxx a lump sum gross
amount of $173,250.00 (less any and all applicable taxes,
withholdings, contributions and other deductions), which amount
represents 90% of Xxxxxxx'x xxxxx annual salary in effect
immediately prior to the termination of his employment with IGI.
B. The parties expressly acknowledge and agree that any and all
payments to be made by IGI to Xxxxxxx under Paragraphs 4(A) shall
be paid, treated and reported by IGI and Xxxxxxx as W-2 income,
and that Xxxxxxx shall be solely responsible for the payment of
any and all federal, state and/or local income taxes, penalties
and/or interest with respect to thereto.
5. Reimbursement of Business Expenses.
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On or before September 30, 2003, Xxxxxxx shall submit to IGI a
final Business Expense Report ("Final Expense Report") to request
reimbursement for any and all costs, expenses, and/or
expenditures he had incurred as of August 15, 2003, in performing
his employment with IGI. The Final Expense Report shall be
submitted, reviewed, approved/declined and paid in accordance
with the IGI's rules and procedures relative to such matters as
currently in effect as of August 15, 2003.
6. Continuation of Health/Medical Insurance Coverage For Xxxxxxx and
Dependents. For a period of twelve (12) months commencing August
31, 2003 and ending Xxxxxx 00, 0000, XXX shall continue to
provide Xxxxxxx and his dependents with health, medical and
dental Insurance coverage benefits under the IGI,
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Inc. Aetna, Inc. Group Health Insurance Plan and/or any other
employer (IGI) provided plan or policy, if any. As of August 31,
2004, Xxxxxxx and his dependents shall no longer be entitled to
nor be permitted to participate in any and all insurance coverage
and/or other benefits provided under the IGI, Inc. Aetna, Inc.
Group Health Insurance Plan and/or any under other employer (IGI)
provided plan or policy, if any. Any and all coverage and/or
benefits previously afforded to Xxxxxxx and/or his dependents
thereunder shall terminate on August 31, 2004, subject to any and
all rights by Xxxxxxx and/or his dependents to elect to continue
participation therein under COBRA and/or any other applicable
laws, and Xxxxxxx and/or his dependents shall be solely
responsible for the payment of any and all costs and expenses
relating thereto, including, without limitation, premium costs
and expenses for continued coverage under COBRA and/or any other
applicable law.
7. Termination of 401K Plan Benefits. In accordance with the terms
and conditions of the IGI, Inc. 401K Retirement Savings Plan
("401K Plan"), Xxxxxxx'x eligibility to participate therein
terminated on August 15, 2003, and from that date onward Xxxxxxx
shall not be permitted to make any further contributions to the
401K Plan nor is he entitled to any employer matching
contributions made by IGI after such date. Any and all account
balances in the 401K Plan for the benefit of Xxxxxxx shall be
held in such account and/or distributed to Xxxxxxx in accordance
with the terms of the 401K Plan and notice to IGI of Xxxxxxx'x
compliance with any and all requirements contained therein.
Xxxxxxx shall be solely responsible for any and all federal,
state and/or local taxes, penalties and/or interest that may be
assessed in relation to any and all distributions to Xxxxxxx from
and under the 401K Plan. Xxxxxxx agrees and acknowledges that he
is in possession of a complete and current copy of the 401K Plan
and is fully familiar with and has been fully advised as to his
rights there under.
8. Termination of Life Insurance Benefits. As of August 31, 2003,
Xxxxxxx shall no longer be entitled to nor be permitted to
participate in any and all life insurance coverage and/or other
benefits provided by IGI under its life insurance plan and/or
under any other employer (IGI) provided plan or policy, if any.
Any and all coverage and/or benefits previously afforded to
Xxxxxxx thereunder shall terminate on August 31, 2003, without
any further notice by IGI to Xxxxxxx, unless otherwise required
by law.
9. Termination of Unexercised Stock Options. Xxxxxxx hereby agrees
as of the Effective Date to release, relinquish and forever
discharge any and all rights, title, interest and claims in and
to any and all 400,000 stock options granted to him under the
IGI, Inc. 1999 Stock Option Plan, the IGI, Inc. 1998 Stock Option
Plan and/or otherwise. As such, irrespective of the exercise date
stated in and/or on any stock option grant or other document
relating thereto, all of Xxxxxxx'x 400,000 stock options shall
automatically terminate on the Effective
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Date without further notice and/or action by IGI unless as
otherwise required by law.
10. Return of IGI Property. Xxxxxxx represents and warrants that as
of the Effective Date, he has returned to IGI any and all
equipment, property, manuals, materials and/or any other
documents belonging to IGI and/or that were provided to or came
into Xxxxxxx'x possession as the result of his employment with
IGI, including, without limitation, any and all documents that
contain trade secrets of IGI and/or proprietary and/or
confidential information relating to IGI and/or its business.
Xxxxxxx further represents and warrants that he has not copied,
duplicated and/or otherwise reproduced any such manuals,
materials, documents and/or information. Xxxxxxx expressly agrees
that he shall not use for and/or in conjunction with any future
business and/or employment purposes and/or disclose to any other
individual, corporation, person, partnership (general or
limited), limited liability company and/or other business entity,
IGI's trade secrets and/or confidential/proprietary information
of IGI that Xxxxxxx may have acquired at any time during his
employment with IGI, including, without limitation, client lists,
price lists, manufacturing processes, manufacturing costs and
business plans.
11. Non-Disclosure of Confidential Information.
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A. For the purposes of and as used in Paragraph 11(B) or
otherwise in this Agreement, the term "Confidential Information"
shall be defined as and mean as follows: IGI's trade secrets and
proprietary information, as well as any and all information of a
business and/or technical nature disclosed to, revealed,
discovered, learned and/or developed by Xxxxxxx at any time
during and/or in the course of his employment with IGI, which
information relates in any way whatsoever to the business of IGI,
to the business of any customer of IGI, and/or to the business of
any other person and/or entity which consults with IGI in any way
whatsoever in conjunction with IGI's business, which such
information is generally unknown in the industry. Confidential
Information shall include, but not limited to, information and
knowledge relating to IGI's computer and/or IT systems, programs,
software, passwords and/or other specifications relating thereto,
Novasome(R) technologies, formulations, manufacturing processes,
procedures, packaging, developments, improvements, methods or
operation, sales, pricing and profit margins, customers, clients
credit and other financial information about IGI and/or IGI's
customers and/or relationships between IGI and its customers,
clients and other who have dealings with the Company.
B. Except as expressly required by law, Xxxxxxx hereby agrees
that
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he will not at any time whatsoever from the Effective Date of
this Agreement and forever thereafter, without the express prior
written consent of IGI: (1) disclosure directly and/or indirectly
any Confidential Information to any person, entity and/or other
third-party not a signatory to this Agreement; and/or (2) use
directly and/or indirectly any Confidential Information for the
benefit of himself and/or any other person, entity and/or other
third-party not a signatory to this Agreement.
X. Xxxxxxx represents and warrants that as of the Effective Date
he has not without the prior written consent of IGI: (1)
disclosed directly and/or indirectly any Confidential Information
to any person, entity and/or other third-party not a signatory to
this Agreement; and/or (2) use directly and/or indirectly any
Confidential Information for the benefit of himself and/or any
other person, entity and/or other third-party not a signatory to
this Agreement.
X. Xxxxxxx further acknowledges and agrees that any violation of
the terms of this Paragraph 11 shall be deemed a breach of this
Agreement entitling IGI to any and all rights and remedies under
this Agreement, as well as any and all rights and remedies
available at law and/or equity.
12. No Admission of Liability. Xxxxxxx expressly agrees and
acknowledges that IGI has voluntarily agreed as a business
decision to enter into this Agreement with Xxxxxxx, and that IGI
is neither required nor obligated, by law, contract or otherwise,
to enter into this Agreement with Xxxxxxx and/or to pay Xxxxxxx
any of the amounts and/or benefits provided for herein. IGI
disputes any claim by Xxxxxxx that IGI is obligated and/or
otherwise liable to him for any monetary amounts, benefits and/or
other damages arising from the termination of his employment with
IGI and/or with respect to any other matter. Neither the
execution of this Agreement nor any of the terms contained herein
shall be construed and/or interpreted as an admission of
liability by IGI with respect to any claims by Xxxxxxx relating
to his employment with IGI and/or the termination of his
employment with IGI. Neither this Agreement nor any term hereof
shall be admissible in any judicial, administrative and/or
arbitration proceeding to which IGI now or hereafter may be a
party, except any judicial, administrative and/or arbitration
proceeding relating to this Agreement.
13. Xxxxxxx Release. Except as expressly provided in Paragraph 14 of
this Agreement, Xxxxxxx, on behalf of himself and his heirs,
executors, administrators, and assigns, does hereby remise,
release and forever discharge IGI and its affiliates,
subsidiaries and/or its past and present agents, attorneys,
representatives, officers, directors, employees, successors,
administrators, shareholders and assigns, of
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and from any and all claims, liabilities, complaints, rights,
injuries, damages, judgments, torts, causes of action, demands,
suits, debts, losses, costs, expenses, fees, penalties,
assessments, fines and interest, of any kind whatsoever, whether
direct or indirect, absolute, fixed or contingent, liquidated or
unliquidated, past or present, known or unknown, that Xxxxxxx
had, now has or may have against IGI, its subsidiaries,
affiliates and/or its past and present agents, attorneys,
representatives, officers, directors, employees, successors,
administrators, shareholders and assigns relating to or arising
out of Xxxxxxx' employment with and/or termination of employment
with IGI and/or any other matter, including, without limitation,
any and all rights or claims relating to or arising under (i)
federal and/or state common law; (ii) the Rehabilitation Act of
1973; (iii) the Federal Age Discrimination in Employment Act of
1967, as amended; (iv) the American With Disabilities Act; (v)
Title VII of the Civil Rights Act of 1964, as amended; (vi) the
Family Leave and Medical Act, (vii) the Employment Retirement
Income Security Act of 1974, as amended, (viii) any and all
federal, state, and/or local laws, statutes, ordinances,
regulations and/or executive orders protecting the rights against
discrimination upon the basis of age, race, sex, national origin,
religion, non-job related disability, sexual preference and other
types of discrimination; (ix) New Jersey Conscientious Employee
Protection Act; (x) any and all any federal, state, and/or local
laws, statutes, ordinances, regulations and/or executive orders
protecting employees against sexual harassment and/or hostile
work place environment; (xi) the Warn Act and/or any other
similar state or federal laws, statutes, ordinances, regulations
and/or executive orders requiring, among other things, advance
notice to employees of certain workforce reductions; and (xii)
any and all legal restrictions of any type whatsoever on IGI's
right to terminate its employees, including Xxxxxxx. Xxxxxxx also
agrees not to initiate, commence and/or file a lawsuit and/or any
other judicial, administrative and/or arbitration proceeding in
any jurisdiction whatsoever against IGI, its subsidiaries,
affiliates and/or its past and present agents, attorneys,
representatives, officers, directors, employees, successors,
administrators, shareholders and assigns, with respect to,
relating to and/or otherwise seeking to assert any claim released
by Xxxxxxx under the terms of this Agreement.
14. Exception to Xxxxxxx Release. Notwithstanding the terms of
Paragraph 13 above, the parties acknowledge and agree that by
this Agreement Xxxxxxx does not waive, release and/or relinquish
(i) any and all rights and claims he may have under the Federal
Age Discrimination in Employment Act of 1967, as amended,
relating to events that may occur and/or facts that made known to
Xxxxxxx after the Effective Date, or (ii) his right to file a
charge with or cooperate in
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an investigation with the Equal Employment Opportunity Commission
after the Effective Date.
15. Rights and Remedies.
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A. In the event of a material breach of this Agreement by
Xxxxxxx, and in addition to any and all rights, remedies and
damages available to IGI hereunder and/or otherwise by law or
equity, IGI shall immediately and automatically be forever
relieved from that date forward, without any further action by
IGI, from any and all obligations to Xxxxxxx under this
Agreement.
X. Xxxxxxx acknowledges and agrees that his breach of any of the
terms and/or covenants contained in Paragraphs 10, 11, and/or
17(A) of this Agreement can cause irreparable damage to IGI for
which the remedy at law would not be adequate. Accordingly, in
addition to any other remedy available to IGI under this
Agreement and/or as otherwise provided by law or equity, IGI
shall be entitled to injunctive relief restraining Xxxxxxx from
any actual or threatened violation of any of the terms of
Paragraphs 10, 11, and/or 17(A) or any other appropriate decree
of specific performance (without any bond or other security being
required).
C. In the event either party is required to incur legal fees
and/or costs in seeking enforcement of this Agreement, the
prevailing party shall be entitled to recover from the other
party any and all such legal fees and/or costs so incurred.
16. Waiting Period and Revocation Rights. Xxxxxxx represents and
warrants that he has been advised by IGI to consult with an
attorney prior to executing this Agreement. Xxxxxxx further
represents and warrants that he understands that he shall have
twenty-one (21) days from the date this Agreement has been
executed by IGI and delivered to Xxxxxxx to decide whether to
sign this Agreement and relinquish the legal claims as provided
for herein. Xxxxxxx further represents and warrants that he has
been advised by IGI that he shall have a period of seven (7) days
following his execution of this Agreement to revoke it so that it
has no continuing or past legal effect. Xxxxxxx represents and
warrants that he understands that to revoke this Agreement during
such seven (7) day period he must provide IGI with written notice
revoking the same and deliver such notice to IGI in accordance
with the terms hereof prior to the expiration of the seven (7)
days revocation period.
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17. Non-Disparagement.
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X. Xxxxxxx agrees that neither he nor any person or entity on his
behalf shall, directly or indirectly, make, orally or in writing,
any comments, statements, and/or remarks of any kind whatsoever
disparaging to IGI, its business, and/or its affiliates,
subsidiaries and/or its past and present agents, attorneys,
representatives, officers, directors, employees, administrators,
and/or shareholders. Xxxxxxx further acknowledges and agrees that
any violation of the terms of this Paragraph 17(A) shall be
deemed a material breach of this Agreement, entitling IGI to any
and all rights and remedies hereunder, as well as otherwise
available at law or equity.
B. IGI agrees that neither it nor any person or entity on its
behalf shall, directly or indirectly, make, orally or in writing,
any comments, statements, and/or remarks of any kind whatsoever
disparaging to Xxxxxxx. Unless otherwise mutually agreed in
writing by IGI and Xxxxxxx, in the event IGI is contacted by a
third-party for a recommendation and/or any other information
related to Xxxxxxx' employment with IGI and/or the termination
thereof, IGI shall not provide any information and/or make any
statements in response thereto other than confirmation of the
position held by Xxxxxxx at IGI and the dates of employment.
Irrespective of the foregoing, Xxxxxxx acknowledges and aggress
that nothing contained herein requires IGI to provide any
information, statements and/or recommendations to any inquiring
third-party other than that which is expressly set forth in this
Paragraph 17(B).
18. New Jersey Law Governs. This Agreement shall be executed,
governed, enforced, construed and interpreted in accordance with
the laws of the State of New Jersey. The parties hereto consent
to the exclusive jurisdiction of the state and federal courts of
New Jersey for the judicial resolution of any and all disputes
that may arise under this Agreement, including without limitation
enforcement of this Agreement and damages relating to a breach
thereof.
19. Entire Agreement. This Agreement incorporates the understandings
and agreements of the parties hereto, and each party acknowledges
that in executing this Agreement they are not relying upon prior
written or oral discussions or statements made by either party.
This Agreement contains the entire understanding of the parties
hereto and there are no representations, warranties, covenants or
undertakings other than those expressly set forth herein. Except
as expressly provided for in this Agreement, Xxxxxxx acknowledges
and agrees that he shall not be entitled to receive from IGI, nor
shall IGI be required to pay and/or provide Xxxxxxx, with any
benefits, monetary amounts, stock options, health, medical, life
and/or disability insurance
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coverage, auto allowance and/or compensation of any kind
whatsoever, by virtue of, under, relating to and/or with respect
to Xxxxxxx'x employment with IGI and/or the termination of
Xxxxxxx'x employment with IGI.
20. Modification/Waiver. A modification or waiver of any of the
provisions of this Agreement shall be effective only if made in
writing and executed by the parties with the same formality as
this Agreement. The failure of any party to insist upon strict
performance of any of the provisions of this Agreement shall not
be construed as a waiver, release and/or discharge of any
subsequent default and/or breach of the same or similar nature.
21. Product of Negotiations. This Agreement is the product of
negotiations between the parties and shall be construed
neutrally, without regard to the identity of the party who drew
it.
22. Headings. The parties expressly acknowledge and agree that
paragraph headings contained in this Agreement are for
convenience purposes only and shall not be considered part of the
terms and conditions of the Agreement.
23. Interpretation Provisions. All references in this Agreement to
the plural shall also mean the singular and to the singular shall
also mean the plural unless the context otherwise requires. The
words "hereof", "herein", "hereunder", "this Agreement", "the
Agreement" and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not any
particular provision of this Agreement unless the context
otherwise requires. The word "including" when used in this
Agreement shall mean "including, without limitation". "And" and
"or" as used in this Agreement shall be interpreted conjunctively
and shall not be interpreted disjunctively to exclude any
information otherwise within the scope thereof.
24. Invalid or Unenforceable Provisions. In the event any provision
of this Agreement shall be determined to be invalid or
unenforceable in any respect, the remaining provisions of this
Agreement shall not be affected thereby and shall continue in
full force and effect.
25. Parties Bound. This Agreement shall be binding upon the parties
hereto and their respective heirs, successors and assigns.
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26. Legal Advice of Counsel. The parties have obtained legal advice
concerning this Agreement from the attorneys of their own
choosing and have not relied on anything the other party or the
other party's attorneys have said in deciding to sign this
Agreement.
27. Voluntary Agreement. Xxxxxxx represents and warrants that he has
read and fully understands the terms of this Agreement. Xxxxxxx
further represents and warrants that he has executed this
Agreement voluntarily without coercion, undue influence or
duress, with full knowledge of the nature, consequences and legal
effect of this Agreement. Xxxxxxx further acknowledges and agrees
that the terms hereof are a fair and adequate resolution of any
and all claims, if any, he may have against IGI relating to his
employment with IGI and/or the termination of his employment with
IGI.
28. Notices. Any and all notices required and/or permitted to be
given under this Agreement to be effective must be sent via hand-
delivery or via Federal Express or other reliable overnight
delivery service to the addresses set forth below, unless
otherwise advised in writing by the other party in accordance
with the terms hereof of a change of address. Any and all notices
under this Agreement shall be deemed made on the date upon which
it is actually delivered to the party to whom it is directed.
(a) To Xxxxxxx:
Xxxx X. Xxxxxxx
00 Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
(b) To IGI:
Xxxxx Xxxxxxx, Chairman
IGI, Inc.
000 Xxxxxxx Xxx.
Xxxxx, XX 00000
With Copy To:
Xxxxx X. Xxxxxxxx, Esq.
Xxxxx & Associates, P.C.
1776 On the Green - 0xx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
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IN WITNESS WHEREOF, the parties have signed this Agreement on August
18, 2003, effective as of August 15, 2003.
EMPLOYER
IGI, INC.
By: /s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
Chairman
EMPLOYEE
Witnessed:
/s/ Xxxxx Xxxxxxxx /s/ Xxxx X. Xxxxxxx
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An Attorney At Law Xxxx X. Xxxxxxx
of the State of New Jersey
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