SEPARATION AGREEMENT AND GENERAL RELEASE
EXHIBIT 10(kk)
SEPARATION AGREEMENT AND GENERAL RELEASE
This Separation Agreement and General Release (“Agreement and Release”) is made by and between
Xxxx X. Xxxxxxx (“Xxxxxxx”) and DUSA Pharmaceuticals, Inc. (“DUSA”) as of August 31, 2006.
WHEREAS, Xxxxxxx commenced employment with DUSA on March 30, 2000 and, on July 31, 2000,
assumed the responsibilities of Vice President of DUSA subject to the terms of an Employment
Agreement, a true copy of which is attached hereto as “Exhibit A”; and
WHEREAS, Xxxxxxx voluntarily tendered his resignation from his employment with DUSA in order
to pursue a new opportunity and asked to be completely separated from DUSA effective August 31,
2006; and
WHEREAS, DUSA and Sowyrda wish to confirm the exclusive terms of Xxxxxxx’x separation from his
employment with DUSA, and to settle, release and discharge with prejudice, any and all claims or
issues arising out of Xxxxxxx’x employment with DUSA and his separation from that employment.
NOW THEREFORE, in consideration of the mutual commitments set forth in this Agreement and
Release, DUSA and Xxxxxxx agree as follows:
1. Separation from Employment.
1.1 Xxxxxxx’x employment with DUSA is irrevocably ended, by his voluntary resignation, as of
the close of business on August 31, 2006 (hereinafter the “Separation Date”).
1.2 Except as otherwise specifically provided in this Agreement and Release, any duties or
obligations owed by DUSA and/or all “Released Parties” (as defined below) to Xxxxxxx pursuant to
Xxxxxxx’x employment with DUSA, his separation from that employment, any verbal or written
agreement (including but not limited to the Employment Agreement), or by virtue of his
participation in any benefit plan sponsored or maintained by DUSA or any Released Party shall
hereby be completely extinguished as of the Separation Date. Likewise, all of Xxxxxxx’x duties and
obligations to DUSA will be extinguished as of the Separation Date, with the exception of those
obligations otherwise stated herein including but not limited to the confidentiality and
non-competition restrictions stated in Employment Agreement, which remain in full force and effect
pursuant to their terms.
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2. Payments and Other Benefits to Be Provided by DUSA.
2.1 In exchange for and in consideration of Xxxxxxx’x promises and covenants as set forth in
this Agreement and Release, and contingent upon DUSA’s receipt of an unrevoked original thereof,
fully-executed by Xxxxxxx, XXXX agrees to provide Sowyrda with the following payments and other
consideration on behalf of all Released Parties:
2.1(a) DUSA hereby agrees to make a gross payment to Xxxxxxx in the total amount of Two
Hundred Six Thousand and 00/100 Dollars ($206,000.00), less all applicable federal, state and
local employment taxes, income tax and other required withholdings (the “Severance Payment”),
representing the equivalent of one (1) year of Xxxxxxx’x base salary at DUSA as of his Separation
Date. The Severance Payment will be paid to Xxxxxxx in a lump sum tendered within sixty (60)
days of the Effective Date (defined below) of this Agreement and Release.
2.1(b) DUSA will also make a payment to Xxxxxxx in the amount of Eighteen thousand five
hundred and ninety nine and 71 /100 Dollars ($18,599.71) , less all applicable federal, state and
local employment taxes, income taxes and other required withholdings, representing payment for
187.80 hours of accrued, unused vacation time at the annual salary rate of Two Hundred Six
Thousand and 00/100 Dollars ($206,000.00) (the “Vacation Payment”). This payment shall be made
as of the payroll period following Xxxxxxx’x Separation Date.
2.1(c) As of the close of business on the business day prior to his Separation Date,
Sowyrda will submit all outstanding expense reports related to business conducted on behalf of
DUSA together with all appropriate receipts. DUSA will pay to Xxxxxxx for all appropriate
expenses due. This payment shall be made as of the payroll period following Xxxxxxx’x Separation
Date.
2.2 Xxxxxxx acknowledges and agrees that the Severance Payment and the Vacation Payment,
individually and together, constitute good and adequate consideration to support the promises
contained herein and are substantially greater than any payments, benefits or other consideration
to which he may presently be entitled, including: (1) pursuant to any express or implied
agreement, contract or understanding with DUSA, including the Employment Agreement; or (2) under
any prior or current DUSA policies, practices or employee benefit plans, including but not
limited to compensation, vacation, car allowance, bonus, severance, or other fringe benefit
plans.
2.3 Xxxxxxx understands and agrees that, in the event he should breach any term of this
Agreement and Release, including but not limited to the continuing confidentiality and
non-competition terms of his Employment Agreement, DUSA, in addition to all other legal and
equitable remedies, shall be entitled to obtain the return of any and all installments of the
Severance Payment made to him hereunder.
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3. Release and Covenant Not to Xxx.
3.1 Upon execution of this Agreement and Release and its Effective Date, and in
consideration of the payments and other benefits described herein, Sowyrda, on behalf of himself,
his spouse, his heirs, executors, administrators, assigns, agents and representatives, hereby
unconditionally releases and completely and forever discharges DUSA, as well as the present and
former officers, directors, employees, attorneys, and agents of each of these entities,
individually and in their official capacities, and any of their employee 401(k) or other employee
benefit plans as well as the administrators, fiduciaries, parties-in-interest, employees, agents,
attorneys and trustees of any such plans (collectively referenced throughout this Agreement and
Release as the “Released Parties”), from any and all of the following claims, prayers for relief
or alleged damages, of whatever nature, known or unknown, existing on or before the date he
executed this Agreement and Release, including but not limited to: (1) any and all claims,
issues, prayers for relief and any other causes of action arising during, from or by virtue of
Xxxxxxx’x employment with and/or separation from employment with any Released Party, whether real
or perceived, including, but not limited to, all claims for common law tort, negligence,
defamation, intentional or negligent infliction of emotional distress, wrongful, retaliatory or
abusive discharge, invasion of privacy, estoppel, fraud, breach of any public policy, express or
implied contract or covenant of good faith and fair dealing as well as employee benefit claims,
or claims relating to any wages or bonus entitlements, or payments of any nature including debts,
accounts, attorneys’ fees, costs, disbursements or reimbursements; and (b) any claims arising
under any federal, state or local laws, statutes, regulations, ordinances or rules prohibiting
unlawful employment discrimination, harassment, retaliation or otherwise relating to Xxxxxxx’x
employment with any Released Party or his separation from that employment, including but not
limited to the Equal Pay Act of 1963, 29 U.S.C. § 206(d) (“EPA”); Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. (“Title VII”); the Age Discrimination in
Employment Act of 1967, as amended, 29 U.S.C. § 621, et seq. (“ADEA”); the Vietnam Era Veterans
Readjustment Assistance Act of 1974, 38 U.S.C. § 2012, et seq. (“VEVRAA”); the Americans With
Xxxxxxxxxxxx Xxx, 00 X.X.X. § 00000, et seq. (“ADA”); the Occupational Safety and Health Act, 29
U.S. § 651, et seq. (“OSHA”); the Older Workers Benefit Protection Act, 29 U.S.C. § 626(f), et
seq. (“OWBPA”); the Consolidated Omnibus Budget Reconciliation Act, 29 U.S.C. § 1161, et seq.
(“COBRA”); the Worker Adjustment and Retraining Notification Act, 29 U.S.C. § 2101, et seq.
(“WARN”); the Federal Family and Medical Leave Act, 29 U.S.C. § 2601, et seq. (“FMLA”); the
Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001, et seq. (“ERISA”); the
Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq.; the Fair Labor Standards Act, 29 U.S.C. §
215(a)(3), et seq. (“FLSA”); the Civil Rights Act of 1991, 42 U.S.C. §§ 1981, 1983, 1985, 1986
and 1988; the Consolidated Omnibus Budget Reconciliation Act, 29 U.S.C. § 1161, et seq.
(“COBRA”); the Worker Adjustment and Retraining Notification Act, 29 U.S.C. § 2101, et seq.
(“WARN”); the Federal Family and Medical Leave Act, 29 U.S.C. § 2601, et seq. (“FMLA”); the
Federal Food Drug & Cosmetics Act, 21 U.S.C. § 321 et seq., the Massachusetts Fair
Employment Practices Act, Mass Gen. Xxxx Xxx. ch. 151B, § 1, et seq. (“FEPA”); the Massachusetts
Whistleblower Statute, Mass Gen. Xxxx Xxx. ch. 149, § 185, et seq.; the Massachusetts Privacy
Act, Mass. Gen. Laws ch. 214, § 1B, et seq.; the Massachusetts Wage and Hour Laws, Mass. Gen.
Laws ch. 151, § 1, et seq.; the Massachusetts Civil Rights Act,
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Mass. Gen. Laws ch. 12, § 11H, et seq.; the Massachusetts Right-to-Know Law, Mass. Gen. Xxxx
Xxx. ch. 111F, et seq.; the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1, et seq.
(“NJLAD”); the New Jersey Discrimination in Wages Law, N.J.S.A. 10:5-1, et seq.; the New Jersey
Temporary Disability Law, N.J.S.A. 43:21-25, et seq.; the New Jersey Wage Payment Law, N.J.S.A.
34:11-4.1, et seq.; the New Jersey State Wage and Hour Law, N.J.S.A. 34:11-56a, et seq.; the New
Jersey Conscientious Employee Protection Act, N.J.S.A. 34:19-1, et seq. (“CEPA”); the New Jersey
Family Leave Act, N.J.S.A. 34:11B-1, et seq. (“NJFLA”); the New Jersey Civil Rights Act, N.J.S.A.
10:6-1, et seq. (“NJCRA”); and the United States, Massachusetts, and New Jersey Constitutions.
Xxxxxxx understands that the laws set forth above give him important remedies that relate to,
inter alia, claims that he has or may have arising out of or in connection with his employment by
any Released Party or the termination of that employment, and he freely and voluntarily gives up
those remedies and claims after being encouraged to and having had the opportunity to consult
with legal counsel.
3.2 Upon execution of this Agreement and Release and its Effective Date, Xxxxxxx, for full
consideration as recited above and below, and on behalf of himself, his spouse, his heirs,
executors, administrators, assigns, agents and representatives, hereby agrees not to file a
lawsuit or claim against any Released Party in any court of the United States, any state or local
governmental unit thereof, or with any arbitration panel concerning any claim, demand, issue or
cause of action covered by this Agreement and Release. Notwithstanding any other language in
this Agreement and Release, the parties understand that this Agreement does not prohibit Xxxxxxx
from filing any claim or action seeking to enforce the terms of this Agreement and Release. The
parties further understand that this Agreement and Release shall not be construed as prohibiting
Xxxxxxx from filing an administrative charge of alleged employment discrimination or
participating or cooperating with any administrative agency in the investigation of an
administrative charge of alleged employment discrimination under Title VII, the ADEA, the ADA,
the EPA, or FEPA. Xxxxxxx, however, waives his right to any individual monetary, injunctive
relief, or other recovery should any federal, state or local administrative agency pursue any
claims on his behalf arising out of or relating to his employment with and/or separation from
employment with DUSA or any of the Releases in this Separation Agreement. This means that by
signing this Agreement and Release, Xxxxxxx will have waived any right he had to bring a lawsuit
or obtain an individual recovery if an administrative agency pursues a claim against DUSA based
on any actions taken by any of them up to the date of his execution of this Agreement and
Release, and that Xxxxxxx will have released and discharged DUSA of any and all claims of any
nature arising up to the date he has executed this Agreement and Release.
4. Non-Use of DUSA’s Confidential Information.
4.1 Xxxxxxx acknowledges and agrees that all confidential information and other proprietary
business information of DUSA, whether in tangible form or otherwise, including all documents and
records, whether printed, typed, handwritten, videotaped, transmitted, or transcribed on data files
or on any other type of media, and whether or not labeled or identified as confidential and
proprietary, made or compiled by Xxxxxxx, or made available to Xxxxxxx during the period of his
employment with DUSA (the “Confidential Information”), is the sole
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property of DUSA. The Confidential Information includes, but is not be limited to, any and all
customer lists, clients lists, investor lists, computer-stored data, disks, plans, reports,
financial projections, business plans, engineering studies, contracts, agreements, letters, files,
or other information that relates to the business, management or administration of DUSA or any of
the Released Parties as well as all proprietary information and trade secrets, designs, techniques,
inventions and discoveries, concepts, technical, non-technical and business data, business
development plans and strategies, product research and development, formulae, processes and
regulatory data, litigation strategies or information, pricing information, invoices, sales
history, customer contacts, correspondence and preferences, orders, contracts, computer records,
mailing, telephone and customer lists or manufacturing and vendor lists. Confidential Information
also includes tangible and intangible property of DUSA, its predecessors, licensors and customers,
including intellectual property which become known by or disclosed to Xxxxxxx during his employment
with DUSA or any predecessor company, and all methods of operations, know-how, systems and
information related to research, development, manufacturing, purchasing, accounting, marketing,
merchandising and selling, business plans or forecasts, and other related data, whether or not
patentable or copyrightable.
4.2 As further material consideration in exchange for the benefits he is to receive hereunder,
Xxxxxxx represents and agrees that he has not, and will not, directly or indirectly, at any time,
use for his own benefit or the benefit of any third party, or disclose to any third party the
Confidential Information of DUSA.
4.3 Xxxxxxx agrees that should he hereinafter be subject to any request, court or
administrative order or compulsory process seeking the disclosure of any of the information
described in Paragraph 4.1, he shall immediately notify DUSA of such request, order or process and
consent to its intervention in the matter.
4.4 Xxxxxxx agrees that upon his breach of this Paragraph 4 and/or any of its subparagraphs,
any other provision of this Agreement and Release, and/or the confidentiality or non-competition
provisions of his Employment Agreement, DUSA or any other Released Party expressly authorized by
DUSA may commence an action for damages, as well as for equitable relief to prevent future breaches
or to ameliorate the impact of any prior breach.
5. Return of Confidential Information and Other DUSA Property.
5.1 Xxxxxxx warrants and represents that, as of the close of business on his Separation Date,
he will deliver all originals and copies of DUSA’s Confidential Information previously in his
possession, regardless of format, to Xxxxxxxx Xxxxxx (“Xx. Xxxxxx”) or Xx. Xxxxxx’x express
designee. Xxxxxxx further expressly represents and warrants that he has not made, retained or
transferred to himself or any third party any typed, handwritten, photostatic, software, floppy
disc or other computerized or digitized copies of such documents, information or materials.
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5.2 Xxxxxxx warrants and represents that, as of the close of business on his Separation Date,
he will return to DUSA any and all other property owned or leased by DUSA including but not limited
to the laptop computer, computer docking station and router, computer desktop monitor, printer,
personal digital assistant (Blackberry), company credit cards (AMEX), office keys and other
equipment.
6. No Admission of Liability.
6.1 Xxxxxxx acknowledges and agrees that DUSA’s entry into this Agreement and Release is not
to be construed as, and is not admission that, DUSA or any Released Party violated any duties or
obligations owed to Sowyrda, or treated Sowyrda improperly, unlawfully or unfairly in any manner
whatsoever, or are liable to him in any way. Neither shall this Agreement and Release be construed
to be, or be admissible in any proceedings as, evidence of any such admission by DUSA as to any
alleged violation of any federal, state or local law, common law, agreement, rule, regulation or
order.
7. Non-Disparagement.
7.1 Xxxxxxx agrees that he shall not, now or ever in the future, publicly or privately, make,
in any way, any disparaging, derogatory, unkind, unflattering or otherwise inflammatory remarks
about DUSA or any other Released Party, the conduct, operations, financial condition or business
practices, policies or procedures of DUSA or any other Released Party, or the management personnel
of DUSA or any other Released Party to any third party, and that he will not in any way make or
solicit any comments, statements or the like to the media or to others that may be considered
derogatory or detrimental to the good name or business reputation of DUSA or any of the Released
Parties.
8. Other Provisions.
8.1 The parties acknowledge and agree that this Agreement and Release contains the full,
final and complete agreement, understandings and representations of the parties with respect to
the topics contained herein, including but not limited to Xxxxxxx’x employment and the terms of
his separation from employment with any Released Party, and it supersedes and extinguishes all
prior or contemporaneous written or oral contracts, negotiations, agreements, representations,
inducements or policies between Xxxxxxx and DUSA or any other Released Party, except the
confidentiality and non-competition provisions of the Employment Agreement which remain in full
force and effect. The parties further acknowledge and agree that this Agreement and Release
supersedes and extinguishes all other prior or contemporaneous written or oral negotiations,
contracts, agreements, representations, inducements or policies between Xxxxxxx and XXXX or any
other Released Party.
8.2 The parties agree that this Agreement and Release is to be governed by, construed and
enforced, in all respects, in accordance with the laws of the Commonwealth of
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Massachusetts, exclusive of any choice of law rules. Any dispute concerning this Agreement and
Release shall be brought in, and the parties hereby consent to the personal jurisdiction of the
courts of the Commonwealth of Massachusetts (to the extent that subject matter jurisdiction
exists only).
8.3 This Agreement and Release may be modified, altered or terminated only by an express
written agreement between DUSA and Xxxxxxx, which agreement must be signed by both parties or their
duly authorized agents, and expressly reference and attach a copy of this Agreement and Release to
be effective.
8.4 Any party’s waiver of a breach of any provision hereof shall not operate or be construed
as a waiver of any subsequent breach by any party.
8.5 The article headings contained herein are for convenience only and shall not in any way
affect the interpretation, construction or enforceability of any provision of this Agreement and
Release.
8.6 If any provision of this Agreement is determined to be invalid or unenforceable, either in
whole or in part, in any jurisdiction or forum, the parties hereby waive such provision to the
extent that it is found to be invalid and unenforceable. Such provision shall, to the extent
allowable by law, be modified, so that it becomes enforceable. Any such modification shall not
affect the validity or enforceability of any other provision of this Agreement, all of which shall
remain in full force and effect.
8.7 This Agreement and Release may be executed in more than one counterpart, and each
counterpart shall be considered an original, but all of which together shall constitute one and the
same.
8.8 This Agreement and Release shall not be assignable by Sowyrda but it shall be binding upon
his heirs, estate, executors, administrators and legal representatives. This Agreement and Release
shall be freely assignable by DUSA without restriction and without the need for any additional
consent from Xxxxxxx and shall be deemed automatically assigned by DUSA upon the company’s purchase
by, or merger or consolidation with, any other entity.
8.9 Xxxxxxx further warrants that he has had the opportunity to review and consider this
Agreement and Release for twenty-one (21) days, and that any material or immaterial changes to
this Agreement and Release will not restart the running of the twenty-one (21) day period.
Xxxxxxx also acknowledges and agrees that, by this writing, he has been advised to seek the
guidance and advice of legal counsel in considering the terms and effect of this Agreement and
Release, and that he has had been provided with the opportunity to do so prior to executing this
Agreement and Release. Xxxxxxx also acknowledges by signing this Agreement and Release that he
has carefully read this Agreement and Release, that he understands completely its contents, that
he has had an opportunity to have an attorney explain
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those contents to him, and that he has executed this Agreement and Release of his own free will,
act and deed.
8.10 To the extent Xxxxxxx signs the Agreement and Release prior to the expiration of the
twenty-one (21) day period and delivers an executed original to DUSA, he additionally
acknowledges and warrants that he has voluntarily and knowingly waived the twenty-one (21) day
review period and that the decision to accept such a shortened period of time is not induced by
DUSA or any Released Party through fraud, misrepresentation, a threat to withdraw or alter the
offer prior to the expiration of the twenty-one (21) day time period, or by providing different
terms to workers who sign releases prior to the expiration of such time period.
8.11 Xxxxxxx understands and expressly agrees that, following his execution of this
Agreement and Release and delivery of same to DUSA, he shall have a period of seven (7) days
during which time he may revoke the Agreement and Release by delivering written notification to
DUSA, no later than the close of business on the seventh (7th) calendar day after he
signs this Agreement and Release, and that this Agreement and Release shall not be effective or
enforceable prior to the expiration of that period. This Agreement and Release shall be forever
binding and enforceable once the seven (7) day period has expired. For purposes of this
Agreement and Release, the term “Effective Date” referenced throughout this Agreement and Release
shall mean the eighth (8th) calendar day after Xxxxxxx executes this Agreement and
Release and DUSA receives an effective, unrevoked original copy. If Xxxxxxx revokes this
Agreement and Release, the Agreement and Release will not be effective and enforceable and he
will not receive the benefits described in this Agreement and Release.
8.12 All notices, requests, demands and other communications hereunder to DUSA must be in
writing and shall be deemed to have been given if delivered by hand or sent via regular and
certified mail, return receipt requested, addressed as follows:
If to DUSA:
Xxxxxxxx Xxxxxx
XXXX Pharmaceuticals, Inc.
00 Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
XXXX Pharmaceuticals, Inc.
00 Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
If to Xxxxxxx:
Xxxx X. Xxxxxxx
0 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000
0 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000
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IN WITNESS WHEREOF, intending to be forever legally bound hereby and for full consideration,
the parties have executed this Agreement and Release, being nine (9) pages in length, on the
date(s) set forth below.
| DUSA Pharmaceuticals, Inc. | ||||||
/s/ Xxxx X. Xxxxxxx
|
By: | /s/ Xxxxxxx X. O’Dell
|
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Date 8/29/06
|
Date 8/29/06 | |||||
Witness: |
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Xxxxxxxx Xxxxxx
|
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Xxxxxxxx Xxxxxx Date 8/29/06 |
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