SEPARATION AGREEMENT AND GENERAL RELEASE
Exhibit
10.1
SEPARATION
AGREEMENT AND GENERAL RELEASE
SEPARATION
AGREEMENT AND GENERAL RELEASE (this "Agreement") dated effective as of
October 31, 2007, between XXXX X. XXXXX ("Executive") and SYNTHETECH,
INC., an Oregon corporation ("Synthetech").
RECITAL
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A.
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Executive
has been employed as the Vice President of Operations of
Synthetech.
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B.
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The
Executive's employment relationship with Synthetech has ended,
Executive
will receive certain severance and other payments in connection
therewith
and Executive will release Synthetech and certain other persons
and
entities from claims, all as set forth in this
Agreement.
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AGREEMENT
NOW,
THEREFORE, in consideration of the foregoing and the mutual promises contained
below, and other good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, the parties agree as follows:
1. Last
Day of Employment. The parties agree that Executive's employment
shall terminate effective as of October 31, 2007 (the "Termination
Date"), and the parties hereby agree that Executive's last day of employment
with Synthetech will be the Termination Date. Executive hereby
resigns as an officer of Synthetech effective as of the Termination
Date.
Synthetech
has paid Executive's final paycheck, including accrued vacation pay, on the
Termination Date, net of applicable withholding taxes to be deducted from that
amount. Executive acknowledges and agrees that the amount of his
final paychecks includes all earned but unpaid wages and bonuses, all unused
paid time off pay, reimbursement for all unreimbursed business expenses incurred
by Executive in connection with Executive's employment, and any other
compensation or benefits that Executive is entitled upon cessation of
employment, net of applicable taxes to be withheld.
Executive
agrees to provide reasonable transition assistance to Synthetech as may be
requested from time to time after the Termination Date by Synthetech's
President.
2. Settlement
Payments and Other Consideration. Provided that (a) Executive is
not in breach of any of his obligations to Synthetech under this Agreement
or
Section 8 ("Nonsolicitation") of the Employment Agreement dated as of January
13, 2006 between Synthetech and Executive (the "Employment Agreement") or
The
Proprietary Information and Employee Inventions Agreement and (b) Executive
has not revoked the release of claims set forth in Section 3 of this Agreement,
Synthetech will: (i) pay
Executive the amount of $11,666.67 for each of the six (6) months immediately
following the
Termination Date (as defined in Section 3 of this Agreement), on or
around the last day of each month commencing November 30, 2007 in accordance
with Synthetech's standard payroll practices and net of applicable withholding
taxes to be deducted from such amount (the "Settlement Payments"), settlement
payments are not eligible compensation for deferment or Company matching
contributions pursuant to Synthetech’s 401(K) Profit Sharing Plan; and (ii) pay the
Company’s
portion of any premiums ("the COBRA Payments"), net of applicable
withholding taxes, necessary to continue
Executive’s health insurance coverage under Synthetech's health insurance plan
pursuant to COBRA (provided that Executive timely elects COBRA coverage under
Synthetech's health insurance plan) until the earlier of six (6) months
beginning November 1, 2007, or the first date that Executive is eligible
to be
covered under another health insurance plan or
program. Executive agrees to notify Synthetech at least seven
(7) days in advance of the commencement of such coverage under another health
insurance plan or program.
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3. Release
of Claims by Executive. In connection with his
receipt of the Settlement Payments, the COBRA Payments and other benefits
offered to him under this Agreement (collectively, the "Settlement"), and
in connection with the termination of his employment, Executive agrees to the
following release (this "Release"):
(a) On
behalf of himself, his heirs, executors, administrators, successors and assigns,
Executive hereby fully and forever releases and discharges Synthetech, its
current, former and future parents, subsidiaries, related entities, attorneys,
employee benefit plans, and their fiduciaries, predecessors, successors,
officers, directors, shareholders, agents, employees and assigns (collectively,
the “Released Parties”) from any and all claims, causes of action, and
liabilities arising out of or relating in any way to his employment with
Synthetech, including, but not limited to, the (i) offer and termination of
his employment and (ii) the Employment Agreement.
(b) Executive
understands and agrees that this Release is a full and complete waiver and
release of all claims, including, but not limited to, claims of wrongful
discharge, breach of contract, breach of the covenant of good faith and fair
dealing, violation of public policy, defamation, personal injury, emotional
distress, claims under Title VII of the 1964 Civil Rights Act, as amended,
the
Equal Pay Act of 1963, as amended, the Age Discrimination in Employment Act
of
1967, as amended, the Older Workers Benefit Protection Act, as amended, the
Americans with Disabilities Act, the Fair Labor Standards Act, the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”), and any other
state, federal or local laws and regulations relating to employment or
employment discrimination. The only exceptions are claims Executive
may have for unemployment compensation and worker’s
compensation. Executive does not presently believe he has suffered
any work-related injury or illness.
(c) Executive
understands and agrees that Synthetech will not provide him with the Settlement
Payments or COBRA Payments unless he agrees to this Release.
(d) Without
limiting the generality of the foregoing release of all claims, Executive
expressly represents and warrants that he is accepting the Settlement in
resolution of any and all actual and/or potential disputes regarding and in
full
satisfaction of any and all claims that he may have against Synthetech for
unpaid compensation, including, without limitation, salary and
bonuses.
(e) Executive
acknowledges that he may discover facts different from or in addition to those
which he now knows or believes to be true and that this Release shall be and
remain effective in all respects even if he discovers new or additional facts
after he signs this Agreement.
(f) As
part of his existing and continuing obligation to Synthetech, he has returned,
or within seven days of the Termination Date, will return to Synthetech all
Synthetech documents, information and property, including, without limitation,
files, records, computer access codes and instruction manuals, as well as any
Synthetech assets or equipment that he has in his possession or under his
control.
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Executive
further agrees not to keep any copies of Synthetech documents or
information. Executive affirms his obligation to keep all Synthetech
Information confidential and not to disclose it to any third party in the
future. Executive understands that the term “Synthetech Information”
includes, but is not limited to, the following: (i) confidential
information, including, without limitation, information received from third
parties under confidential conditions; and (ii) information concerning customers
(including, without limitation, customer lists), as well as other technical,
scientific, marketing, business, product development or financial information,
the use or disclosure of which might reasonably be determined to be contrary
to
the interests of Synthetech.
(g) Executive
represents and warrants that he is the sole owner of any and all claims relating
to his employment with Synthetech, and that he has not assigned or transferred
any claims relating to his employment to any other person or
entity.
(h) Executive
agrees to keep this Release and the other terms of this Agreement confidential
and not to reveal its contents to anyone except his lawyer, his spouse and/or
his financial consultant if they agree to keep such information
confidential.
(i) Executive
understands and agrees that neither this Release nor this Agreement shall be
construed at any time as an admission of liability or wrongdoing by either
himself or any Released Party.
(j) Executive
acknowledges that this Release was presented to him on November 3, 2007 and
that
he is entitled to have twenty-one (21) days’ time after receipt of this Release
within which to review and consider and discuss with an attorney of his own
choosing whether or not to sign this Agreement and agree to this
Release. Executive further understands that, for the period of seven
(7) days after the date he signs this Agreement and agrees to this Release,
he
may revoke it by delivering a written notification of his revocation, no later
than the seventh day to Synthetech as set forth in Section 6(b)
below. Executive further understands that the Effective Date
of this Release will be the eighth day after he has signed this Agreement,
provided that (x) he has delivered an executed copy of this
Agreement to Synthetech and Executive has not revoked this Release during the
seven days after the date he signed this Agreement and (y) Synthetech's
obligations with respect to the Settlement will not be effective until the
Effective Date.
4. Continuing
Obligations of Confidentiality and Nonsolicitation. Executive
acknowledges his continuing obligations under Section 8 of the Employment
Agreement, and agrees that although his employment relationship will terminate
effective as of the Termination Date, Executive will continue to abide by all
of
his covenants and agreements under that Section of the Employment
Agreement.
5. Nondisparagement. Each
party agrees to refrain at all times from making any remarks or statements,
whether oral or written, or taking any action that disparages or is, or could
reasonably be expected to be, detrimental to, the character, goodwill or
reputation of the other party or any of its officers, directors, shareholders,
employees or other affiliates; provided, however, that the foregoing
shall not prohibit either party from giving truthful testimony under oath in
response to a subpoena. Synthetech agrees to use its best efforts to
ensure that Synthetech's executive employees refrain from disparaging
Executive.
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6. Miscellaneous.
(a) The
provisions of this Agreement shall inure to the benefit of, and shall be binding
upon, Synthetech, its successors and assigns, and Executive, the personal
representative of his estate and his heirs and legatees; provided,
however, Executive may not assign, transfer or delegate his rights or
obligations hereunder and any attempt to do so shall be void.
(b) Any
and all notices, demands or other communications required or desired to be
given
hereunder by any party shall be in writing and shall be validly given or made
to
another party if served either personally or, if deposited in the United States
mail, certified or registered, postage prepaid, return receipt
requested. If such notice, demand or other communication shall be
served personally; service shall be conclusively deemed made at the time of
such
personal service. If such notice, demand or other communication is
given by mail, service shall be conclusively deemed made at the time of the
receipt by the party to whom such notice, demand or other communication is
sent.
Any and all notices, demands or other communications shall be delivered to
the
following addresses:
| To Synthetech: | Synthetech, Inc. |
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0000
Xxxxxxxxxx Xxx
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X.X.
Xxx 000
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Xxxxxx,
XX 00000
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Attention: Chief
Executive Officer
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| With a copy to: |
Xxxxxxx
Coie LLP
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0000
XX Xxxxx Xxxxxx, Xxxxx Xxxxx
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Xxxxxxxx,
XX 00000-0000
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Attention: Xxxxx
Xxxxxxxx
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| To Executive: | Xxxx X. Xxxxx |
| 0000 Xxxxxx Xxxxx Xx. | |
| Xxxxxx, XX 00000 | |
(c) No
waiver of any term or provision of this Agreement shall be valid unless such
waiver is in writing signed by the party against whom enforcement of the waiver
is sought. The waiver of any term or provision of this Agreement
shall not apply to any subsequent breach of this Agreement.
(d) This
Agreement may only be amended by a written instrument signed by Executive and
an
authorized officer of Synthetech.
(e) The
provisions of this Agreement shall be construed and interpreted under the laws
of the State of Oregon applicable to contracts made and to be performed in
Oregon by persons domiciled in Oregon. If any provision of this
Agreement as applied to any party or to any circumstance should be adjudged
by a
court of competent jurisdiction to be void or unenforceable for any reason,
the
invalidity of that provision shall in no way affect (to the maximum extent
permitted by law) the application of such provision under circumstances
different from those adjudicated by the court, the application of any other
provision of this Agreement, or the enforceability or invalidity of this
Agreement as a whole. Should any provision of this Agreement become
or be deemed invalid, illegal or unenforceable in any jurisdiction by reason
of
the scope, extent or duration of its coverage, then such provision shall be
deemed amended to the extent necessary to conform to applicable law so as to
be
valid and enforceable or, if such provision cannot be so amended without
materially altering the intention of the parties, then such provision shall
be
stricken and the remainder of this Agreement shall continue in full force and
effect.
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(f) This
Agreement may be executed in more than one counterpart, each of which shall
be
deemed an original, but all of which together shall constitute but one and
the
same instrument.
(g) Each
party acknowledges that such party does not rely upon any representation or
statement by any other party to this Agreement or any such party's
representatives concerning the subject matter of this Agreement, except as
expressly set forth in the text of this Agreement.
(h) This
Agreement, together with The Proprietary Information and Employee Inventions
Agreement and Section 8 of the Employment Agreement, set forth
the entire understanding among the parties and their affiliates with respect
to
the subject matter hereof and, subject to the following sentence, supersede
any
prior agreements or understandings, express or implied, pertaining to the terms
of Executive's employment with Synthetech and the termination of the employment
relationship. The parties hereby agree that on the Effective Date the
Employment Agreement (other than Section 8, which shall survive the
Effective Date), shall terminate and be of no further force or
effect.
(i) All
payments and benefits provided herein shall be less applicable deductions and
withholdings.
(j) Except
as set forth in Section 6(k) below, any controversy or claim arising out of
or relating to this Agreement shall be fully and finally settled by arbitration
in Portland, Oregon in accordance with the rules of the American Arbitration
Association then in effect (the "AAA Rules"), conducted by one arbitrator
who shall be an attorney in the Portland, Oregon area and shall be mutually
agreed upon by the parties. If the parties are unable to agree
mutually as to the arbitrator within 30 days, each party shall, within 10 days
after the end of such 30-day period, designate an attorney in the Portland,
Oregon area who together shall mutually select a single arbitrator within 15
days after the designation of the last such designee. Such
arbitration shall not be conducted by the American Arbitration
Association. The prevailing party shall be entitled to costs,
expenses and reasonable attorneys' fees, and judgment upon the award rendered
by
the arbitrator may be entered in any court having jurisdiction
thereof.
(k) The
parties agree that, as the damages to either party resulting from a breach
of
obligations under Section 4 or 5 of this Agreement, The Proprietary
Information and Employee Inventions Agreement or under Section 8 of the
Employment Agreement are and would be impossible to determine with reasonable
certainty, the parties shall have the right, in the event of a breach of any
of
the other party's obligations or covenants thereunder, to specific enforcement
thereof. The remedies for breach by either party of any
representation, warranty, covenant or agreement hereunder shall be cumulative,
and the right of specific performance granted hereby shall not be deemed to
foreclose or limit any other remedy or right under this Agreement, The
Proprietary Information and Employee Inventions Agreement or the Employment
Agreement, at law or in equity.
(l) The
parties agree, at any time and from time to time after the date hereof, to
execute and deliver all such further agreements, documents or instruments,
and
promptly to take and forbear from all such action, as may be reasonably
requested in order more effectively to confirm or carry out the provisions
of
this Agreement.
(m) In
the event of any action to enforce or interpret this Agreement, the prevailing
party shall be entitled to recover, in addition to all other costs, damages
and
awards, its reasonable costs and attorneys' fees, both at and in preparation
for
trial, and in any appeal or review (including in connection with any petition
for review).
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7. Voluntary
Execution of Agreement. Executive warrants that (a) he has
read this Agreement, (b) he has been advised to seek independent legal counsel
regarding this Agreement, (c) he has had full opportunity to consult independent
counsel prior to signing this Agreement, and (d) he understands the meaning
and
intent of this Agreement. Executive further warrants that his
decision to sign this Agreement has been made intelligently, knowingly and
voluntarily, without duress or coercion and with the full intent of releasing
the Released Parties of and from any and all claims.
[Remainder
of Page Intentionally Left Blank]
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PLEASE
READ CAREFULLY. THIS AGREEMENT INCLUDES A RELEASE OF ALL KNOWN AND
UNKNOWN CLAIMS.
IN
WITNESS WHEREOF, the parties have duly executed this SEPARATION AGREEMENT AND
GENERAL RELEASE as of the dates indicated below.
| EXECUTIVE | SYNTHETECH, INC. | |||
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/s/
Xxxx X.
Xxxxx
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/s/ Xxxx
Xxxxx
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XXXX
X.
XXXXX
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Name:
Xxxx
Xxxxx
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Title
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Title:
Vice
President of Finance
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Dated: November
11, 2007
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Dated: November 20, 2007 |
