SEPARATION AND GENERAL RELEASE AGREEMENT
EXHIBIT
10.141
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This Separation and General
Release Agreement must be executed and returned to Employer in care of
Employer's counsel (Xxxxx X. Xxxxxxx, Xxxxxxxxxx Xxxxxxx, PC, 00
Xxxxxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxxxx 00000; fax
000.000.0000; e-mail: xxxxxxxx@xxxxxxxxxx.xxx) on or before April 14,
2008, but not prior to the Separation Date.
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This
Separation and General Release Agreement (“Agreement”), dated
March 21, 2008, is entered into by and between Xxxxxxx XxXxxxxx (the “Employee”) and Vyteris Holdings (Nevada), Inc., a
Nevada corporation (the “Employer”), and
together with its parents, subsidiaries, affiliates and each of their respective
officers, directors, employees, shareholders, investors, members, managers,
partners, plans, plan administrators and fiduciaries, representatives,
attorneys, advisors and agents (in both their individual and official
capacities), as well as any predecessors, future successors or assigns or
estates of any of the foregoing (collectively, the “Company”).
1. Separation of
Employment. Employee acknowledges and understands that
Employee’s last day of employment with Employer is March 24, 2008 (the “Separation Date”) and
that Employee has received all compensation and benefits to which Employee is
entitled as a result of Employee’s employment, except for the compensation
provided for in this Agreement. Employee understands that, except as
otherwise provided in this Agreement, Employee is entitled to nothing further
from Company, including reinstatement by Company or any future or deferred
compensation.
2. General
Release. In consideration of the payments and other benefits
set forth in Section 4 below, Employee hereby unconditionally and irrevocably
releases, waives, discharges and gives up, to the fullest extent permitted by
law, any and all Claims (as defined below) that Employee may have against
Company, arising on or prior to the date of Employee’s execution and delivery of
this Agreement to Employer. “Claims” means any and
all actions, charges, complaints, controversies, demands, causes of action,
suits, rights, and/or claims whatsoever, relating to Employee's employment with
the Company and his resignation and termination therefrom, for debts, sums of
money, wages, salary, commissions, bonuses, stock options, severance pay,
vacation pay, sick pay, fees and costs, attorneys’ fees, losses, penalties,
damages, including damages for pain and suffering and emotional harm arising,
directly or indirectly, out of any promise, agreement, offer letter, contract,
understanding, common law, tort, the laws, statutes, and/or regulations of the
States of New York, New Jersey and Nevada or any other state and the United
States, including, but not limited to, and to the extent applicable, federal and
state wage and hour laws, federal and state whistleblower laws, Title VII of the
Civil Rights Act of 1964, the Civil Rights Act of 1991, the Equal Pay Act, the
Americans with Disabilities Act, the Family and Medical Leave Act, the Employee
Retirement Income Security Act (excluding COBRA), the Vietnam Era Veterans
Readjustment Assistance Act, the Fair Credit Reporting Act, the Fair Labor
Standards Act, the Age Discrimination in Employment Act ("ADEA"), the Older
Workers Benefit Protection Act, the Occupational Safety and Health Act, the
Xxxxxxxx-Xxxxx Act of 2002, the New York State Human Rights Law, the New York
City Human Rights Law, the New Jersey Law Against Discrimination, the New Jersey
Family Leave Act, the New Jersey Civil Rights Act, and the New Jersey
Conscientious Employee Protection Act as each may be amended from time to time,
whether arising directly or indirectly from any act or omission, whether
intentional or unintentional. This releases all Claims including
those of which Employee is not aware and those not mentioned in this
Agreement. Employee expressly acknowledges and agrees that, by
entering into this Agreement, Employee is releasing and waiving any and all
Claims, including, without limitation, Claims that Employee may have arising
under ADEA, which have arisen on or before the date of Employee’s execution and
delivery of this Agreement to Employer.
The
foregoing General Release does not include, and does not release, the Employee's
right to seek to enforce the terms of this Agreement, including without
limitation the right of Employee to obtain the compensation owed to Employee
under Section 4 below. The foregoing General Release does not
prohibit or limit Employee's right to assert defenses or counterclaims against
any person, group of persons and/or entity who or that is the beneficiary of the
foregoing General Release and who or that asserts a claim or commences a suit or
action against Employee, or to otherwise assert rights of contribution or
indemnification against any person, group of persons and/or entity in connection
with any such claim, suit or action.
The
foregoing General Release does not include, and does not release or in any way
diminish or reduce, any and all rights Employee may currently have or may have
ever had under any of Employer’s insurance policies, including but not limited
to D&O insurance policies. Employee’s rights under said insurance
policies shall survive the execution of this Agreement, subject to the terms of
such policies, the Company's by-laws, and applicable
law. Furthermore, nothing in this General Release or anywhere else in
this Agreement is intended to nor shall it limit in any way Employee’s right and
ability to bring Claims solely against any insurance company for denial of
coverage under any such policy that may provide such coverage to
Employee. To the extent Employee has a dispute with any insurance
company concerning coverage under any of the Employer’s insurance policies,
Employer shall provide Employee with all reasonable requested information
relevant to the dispute (e.g., provide copies of
applicable policies, answer reasonable questions concerning communications with
the insurer), and shall not do anything to unnecessarily or unreasonably
undercut Employee’s effort to obtain coverage.
3. Representations; Covenant
Not to Xxx. Employee hereby represents and warrants to Company
that Employee has not: (A) filed, caused or permitted to be filed any pending
proceeding (nor has Employee lodged a complaint with any governmental or
quasi-governmental authority) against Company, nor has Employee agreed to do any
of the foregoing; (B) assigned, transferred, sold, encumbered, pledged,
hypothecated, mortgaged, distributed, or otherwise disposed of or conveyed to
any third party any right or Claim against Company that has been released in
this Agreement; or (C) directly or indirectly assisted any third party in
filing, causing or assisting to be filed, any Claim against
Company. In addition, Employee represents and warrants that Employee
shall not encourage or solicit or voluntarily assist or participate in any way
in the filing, reporting or prosecution by himself or any third party of a
proceeding or Claim against Company, except as permitted under Section 2 of this
Agreement.
4. Payment and Release from
Non-Compete. As good consideration for Employee’s execution,
delivery, and non-revocation of this Agreement, Employer shall:
(A) Pay
to Employee a lump sum cash amount equal to $152,000 less tax withholding and
other deductions required by law. Such payment shall be made within 5
days after the date that is six months following Employee's "separation from
service" from the Company (within the meaning of Section 409A(a)(2)(B) of the
Internal Revenue Code of 1986, as amended); and
(B) Pay
to Employee a lump sum cash amount equal to $98,000 less tax and withholding and
other deductions required by law, in respect of his fiscal year 2007 annual
bonus, which amount is earned and payable as of the date hereof. Such
payment shall be made within 10 days after the Effective Date; and
(C) Employer
shall not contest any application by Employee for unemployment compensation
insurance coverage, but Employer shall advise the appropriate governmental
authority that Employee is receiving the benefits under Sections 4(A) and
4(B).
Employee
acknowledges that the amount set forth in Section 4(A) above is in excess of the
amount Employee is entitled pursuant to any employment arrangement with
Employer. Employee acknowledges that nothing in this Agreement shall
be deemed to be an admission of liability on the part of
Company. Employee agrees that Employee will not seek anything further
from Company, except as provided for in this Agreement.
5. Expenses and Unpaid
Salary. Employer shall
reimburse Employee for all outstanding reasonable out-of-pocket expenses
incurred by Employee but not yet paid by Employer in connection with the
performance of Employee’s duties at Employer’s request through the Separation
Date in accordance with Employer’s expense reimbursement policy. In
addition, Employer acknowledges that Employee shall be paid any and all accrued
but unpaid base salary, through March 24, 2008, which shall be paid in
accordance with the Company's regular payroll policies and systems.
6. Who is
Bound. Employer and Employee are bound by this
Agreement. Anyone who succeeds to Employee’s rights and
responsibilities such as Employee’s heirs and the executors and administrators
of Employee’s estate is bound and anyone who succeeds to Employer’s rights and
responsibilities, such as its successors and assigns is also bound.
7. Other Agreements and
Acknowledgements.
(A) Employee
has previously been granted options to purchase common stock of Employer
pursuant to the Employer's 2005 Stock Option Plan. Each such option,
to the extent not vested and exercisable as of date of this Agreement, shall
immediately and automatically terminate and be cancelled for no
consideration. Each such option, to the extent already vested and
exercisable as of the date of this Agreement (the "Vested Options"), shall
remain vested and exercisable in accordance with its respective terms and
conditions for the post-termination exercise period applicable to such option
(including any provision in any option agreement and/or Section 4.2.1(c) of the
Employment Agreement (as defined below) applicable to any Vested Option that
provides for a 5 year period of exercise from and after termination of
employment) and/or until expired in accordance with its terms. No
provision contained in this Agreement shall amend or alter the existing terms
and conditions of any such option. Attached to this Agreement as an
Exhibit is a schedule of the Vested Options, demonstrating that 1.8 million
options are Vested Options.
(B) Employee
agrees that the terms and conditions of this Agreement are confidential,
including, but not limited to, the amounts paid to or benefits received by
Employee under this Agreement. Employee will not disclose the
existence of this Agreement or any of its terms to any Person except (i) to
Employee’s immediate family and legal and tax advisors and then only after
securing the agreement of such individual to maintain the confidentiality of
this Agreement, (ii) in response to a subpoena or other legal process, after
reasonable notice has been provided to Employer sufficient to enable Employer to
seek an appropriate protective order or other appropriate remedy or (iii) to the
extent necessary for Employee to enforce the terms of this
Agreement. Employer agrees that to the extent the Company publicly
discloses any of the terms or conditions of this Agreement, Employee may
disclose, on a going forward basis, the same information already disclosed by
the Company.
(C) Employee
and Employer are party to that certain Employment Agreement, effective as of
January 1, 2006 (the "Employment Agreement"). Employee and Employer
hereby acknowledge and agree that the Employment Agreement is hereby terminated
and of no further force or effect, and that Employee shall have no rights
thereunder whatsoever; provided, however, that (i)
Employee is, and shall remain, subject to certain restrictive covenants relating
to Non-Solicitation and Noncompetition; Property Rights; and Confidentiality,
pursuant to Sections 5, 6 and 7, respectively, of the Employment Agreement, and
that such restrictive covenants shall remain in effect in accordance with, and
for the periods of time set forth, in the Employment Agreement, (ii) this
Agreement shall not amend, limit or restrict any rights of Employee to
indemnification and/or advancement of legal fees from the Company, if any,
pursuant to Employer's by-laws and subject to applicable law and (iii) Section
4.2.1(c) of the Employment Agreement as noted above in Section 7(C) shall remain
in full force and effect. In addition, any provisions under the
Employment Agreement that provide the Company rights to enforce such restrictive
covenants shall survive the termination of the Employment
Agreement.
(D) Employee
hereby resigns, effective immediately, from each and every position he holds as
an officer and director of Employer and each of its subsidiaries, affiliates,
and other entities or organizations with respect to which he represents the
Company. Upon request from the Company, Employee shall promptly
execute a resignation letter prepared by the Company that states that Employee
has resigned from such positions.
(E) The
Company shall provide Employee with a reasonable opportunity to review and
propose comments, before public disclosure, to any public communication, press
release or filing (including any S.E.C. filing) that names, mentions, refers or
relates to Employee.
(F) Employee
agrees not to make any defamatory or derogatory statements concerning the
Company. The Company agrees not to make any defamatory or derogatory
statements concerning Employee; provided, however, that no
statement or disclosure concerning Employee that is made or set forth in any
S.E.C. filing of the Company shall be deemed to be defamatory or
derogatory. Provided that inquiries are directed to Employer’s Human
Resources Department, Employer shall disclose to prospective employers
information limited to Employee’s dates of employment and last position held by
Employee.
8. Surrender and Return of
Company Property. Employee represents and warrants that (i)
all documents, records, directories, memoranda, notebooks, plans, models,
components, devices or computer software or codes, including, without
limitation, all copies or reproductions of such documents or materials, tapes,
computer disks, backup copies, and other forms of electronic storage media), all
property belonging to or purchased with the funds of Company and any equipment,
employee or security identification or access cards, or any other material
containing or relating to the Confidential Information (collectively, the “Proprietary Items”)
have been returned to an authorized officer of Employer (ii) he has destroyed
all notes, analyses, studies, forecasts, compilations, summaries,
interpretations and other documents or reports prepared by him that contain,
reflect or are based upon, in whole or in part, Confidential Information or any
other Proprietary Item (including, without limitation, all copies or
reproductions of such documents or materials, tapes, computer disks, backup
copies, and other forms of electronic storage media) and (ii) all Confidential
Information and any other Proprietary Items in electronic form have been deleted
from his computer systems and from all back-up and archive tapes, if such exist,
so that nothing remains in electronic form that constitutes or contains
information based on Confidential Information or any other Proprietary
Item.
9. Severability. If
any term, provision, covenant or restriction contained in this Agreement, or any
part thereof, is held by a court of competent jurisdiction or any foreign,
federal, state, country or local government or any other governmental regulatory
or administrative agency or authority or arbitration panel to be invalid, void
or unenforceable or against public policy for any reason, the remainder of the
terms, provisions, covenants and restrictions in this Agreement shall remain in
full force and effect.
10. Governing Law;
Venue.
This
Agreement shall be governed by and enforced in accordance with the laws of the
State of New Jersey without regard to its conflicts of law principles. The
parties hereto (i) agree that any lawsuit, proceeding or action with respect to
this Agreement may be brought in the courts of the State of New Jersey or of the
United States District Court for the District of New Jersey, (ii) accept the
jurisdiction of such courts, (iii) irrevocably waive any objection, including,
without limitation, any objection to the laying of venue or based on the grounds
of forum non conveniens, which
they may now or hereafter have to the bringing of any lawsuit, proceeding or
action in those jurisdictions, (iv) irrevocably consent to the service of
process of any of the courts referred to above in any lawsuit, proceeding or
action by the mailing of copies of the process, if to Employer to Vyteris
Holdings, Inc., 00-00 Xxxxxxx Xxxxx, Xxxx Xxxx, XX 00000, Attn: Xxxxxx X.
Xxxxxx, Chairman of the Board (with a copy to Xxxxxxxxxx Xxxxxxx, P.C., Attn:
Xxxxx X. Xxxxxxx, at the address set forth in this Agreement), and if to
Employee to his principal residence as last indicated in his personnel records
of the Company or to any subsequent principal residence as to which Employee
gives Employer notice in writing (with a copy to Xxxxxxx Procter LLP, Exchange
Place, Boston, Massachusetts 02109, Attn: Xxxxx X. Xxxxx); and (v) agree that
service effected as provided in the immediately preceding sub-clause (iv) shall
become effective ten (10) calendar days after such mailing of the
process.
11. Headings. The
headings in this Agreement are included for convenience of reference only and
shall not affect the interpretation of this Agreement.
12. Counterparts. This
Agreement may be executed and delivered with facsimile signature and in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
13. No Other Assurances; Entire
Agreement; Modification. Employee acknowledges that in
deciding to sign this Agreement he has not relied on any promises or
commitments, whether spoken or in writing, made to Employee by any Person,
except for what is expressly stated in this Agreement. This Agreement
constitutes the entire understanding and agreement between Employee and the
Company, and replaces and cancels all previous agreements and commitments,
whether spoken or written, in connection with the matters described herein,
except as otherwise provided in this Agreement. This Agreement may be
changed only by a written instrument signed by Employee and an authorized
officer of Employer.
14. Acknowledgments. Employer
and Employee acknowledge and agree that:
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(A) By
entering in this Agreement, Employee does not waive any rights or Claims
that may arise after the time and date that Employee executes and deliver
this Agreement to Employer;
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(B) This
Agreement shall not affect the rights and responsibilities of the Equal
Employment Opportunity Commission (the “EEOC”) to
enforce the ADEA and other laws, and further acknowledge and agree that
this Agreement shall not be used to justify interfering with Employee’s
protected right to file a charge or participate in an investigation or
proceeding conducted by the EEOC. Accordingly, nothing in this
Agreement shall preclude Employee from filing a charge with, or
participating in any manner in an investigation, hearing or proceeding
conducted by, the Equal Employment Opportunity Commission, but Employee
hereby waives any and all rights to recover under, or by virtue of, any
such investigation, hearing or
proceeding;
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(C)
Notwithstanding anything set forth in this Agreement to the contrary,
nothing in this Agreement shall affect or be used to interfere with
Employee’s protected right to test in any court, under the Older Workers’
Benefit Protection Act, or like statute or regulation, the validity of the
waiver of rights under ADEA set forth in this Agreement;
and
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(D) Nothing
in this Agreement shall preclude Employee from exercising Employee’s
rights, if any (i) under Section 601-608 of the Employee Retirement Income
Security Act of 1974, as amended, popularly known as COBRA, or (ii)
Employer’s 401(k) plan or other plan of Employer that is qualified under
Section 401(a) of the Code.
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15. Opportunity For
Review.
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(A)
Employee represents and warrants that Employee (i) has had
sufficient opportunity to consider this Agreement, (ii) has read this
Agreement, (iii) understands all the terms and conditions hereof, (iv) is
not incompetent or had a guardian, conservator or trustee appointed for
Employee, (v) has entered into this Agreement of Employee’s own free will
and volition, (vi) has duly executed and delivered this Agreement, (vii)
understands that Employee is responsible for Employee’s own attorneys’
fees and costs, (viii) has had the opportunity to review this Agreement
with counsel of his choice or has chosen voluntarily not to do so, (ix)
understands that Employee has been given twenty-one (21) days to review
this Agreement before signing this Agreement and understands that he is
free to use as much or as little of the 21-day period as he wishes or
considers necessary before deciding to sign this Agreement, (x)
understands that if Employee does not sign and return this Agreement to
Employer’s counsel (Attn.: Xxxxx X. Xxxxxxx, Xxxxxxxxxx Xxxxxxx PC, 00
Xxxxxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxxxx 07068) on or before April 14, 2008
(but not prior to the Separation Date), Employer shall have no obligation
to enter into this Agreement, Employee shall not be entitled to receive
the payments provided for under Section 4 of this Agreement, and the
Separation Date shall be unaltered; and (xi) understands that this
Agreement is valid, binding, and enforceable against the parties hereto in
accordance with its terms.
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(B)
This Agreement shall be effective and enforceable on the eighth (8th) day
after execution and delivery to Employer’s counsel by Employee (the
"Effective Date"). The parties hereto understand and agree that
Employee may revoke this Agreement after having executed and delivered it
to Employer’s counsel, in writing, provided such writing is received by
Employer’s counsel (Attn.: Xxxxx X. Xxxxxxx, Xxxxxxxxxx Xxxxxxx, PC, 00
Xxxxxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxxxx 00000; fax 000.000.0000; e-mail
xxxxxxxx@xxxxxxxxxx.xxx) no later than 11:59 p.m. on the seventh (7th) day
after Employee’s execution and delivery of this Agreement to Employer’s
counsel. If Employee revokes this Agreement, it shall not be
effective or enforceable and Employee shall not be entitled to receive the
payments provided for under Section 4 of this Agreement, and the
Separation Date shall be unaltered.
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Agreed to
and accepted by, on this 21st day of March, 2008
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EMPLOYEE:
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/s/
Xxxxxxx
XxXxxxxx
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Xxxxxxx
XxXxxxxx
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Agreed to
and accepted by, on this 21st day of March, 2008
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EMPLOYER:
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By:
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Name:
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Title:
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