EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made between XXXXXX XXXXXX (the
"Employee" or "you") and AURIGA LABORATORIES, INC., a Delaware corporation,
along with its subsidiaries, parents, affiliated entities, and includes its
successors and assigns or any such related entities (the "Company"). In
consideration set forth below, both parties agree as follows:
1. Term of Employment. Your employment under this Agreement shall commence on
June 23, 2006, and this Agreement shall commence as of that date. The parties
expressly understand that nothing in this Agreement is a guarantee or assurance
of employment for any specific period of time. Rather, you understand that you
are an at-will employee, and that the Company may terminate your employment at
any time, and you are similarly free to resign at any time. The parties also
expressly understand that the terms and conditions in Section 3 below do not
guarantee employment for any specific period of time or otherwise alter your
at-will employment status but are solely included to set forth amounts and
benefits potentially available to you at the cessation of your employment.
2. Nature of Duties. You shall hold the position of "Chief Operations Officer"
and shall receive future wages and employment benefits, payment of which during
the period of your employment is a condition of this Agreement. You shall also
devote your full business time and effort to the performance of your duties for
the Company, which you shall perform faithfully and to the best of your ability.
During your employment, you shall not render services in any capacity to any
other person or entity and shall not act as a sole proprietor or partner of any
other person or entity or as a shareholder owning more than five percent of the
stock of any other corporation, without the prior written approval of the
Company's Board of Directors. You shall be subject to the Company's policies,
procedures and approval practices, as generally in effect from time-to-time.
3. Compensation and Related Matters. In consideration of your execution of this
Agreement, you shall be entitled to the following:
a. Base Salary. The Company shall pay you a base salary at a gross annual
rate of $205,000.00. Base salary shall be paid bi-weekly.
b. Monthly Car Allowance. The Company shall pay you a monthly car
allowance of $700.
c. Bonus: The Company is currently formulating an executive incentive
program. You will be eligible to participate in this incentive program beginning
in 2006 if an once approved by the Company's Board of Directors. Your target
bonus will be up to 40% base salary based on individual and company performance.
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d. Common Stock. You acknowledge that, prior to the execution of this
Agreement, you had no right to any option shares of the Company's Common Stock
that had not vested by the time of your employment termination and that such
shares would be forfeited on your employment termination date. As consideration
for the execution of this Agreement, all option shares that have been granted to
you which have not vested as of your employment termination shall automatically
vest on your termination date, as described in the applicable stock option
agreement, provided your employment is terminated by the Company without Cause.
You shall not be entitled to this benefit should you terminate your employment
with the Company, regardless of the reason, or if the Company terminates your
employment with Cause. For purposes of this Agreement, "Cause" shall mean: (1)
your failure or refusal to follow the Company's reasonable and lawful directions
or your material failure or refusal to perform your essential duties (other than
by reason of physical or mental illness, injury, or condition); (2) your
material failure or refusal to comply with Company policies; (3) your engaging
in conduct that is or may be unlawful or disreputable, to the possible detriment
of the Company's or your own reputation in the industry; or (4) your breach of
this Agreement.
e. Taxes. The Company shall withhold taxes from payments it makes pursuant
to this Agreement as required by applicable law.
f. Non-qualified Stock Option Grant. Subject to the approval of the
Company's Board of Directors, you will be granted an option to purchase 250,000
shares of the Company's Common Stock on a post-split basis. The exercise price
per share will be equal to the closing price of the Company's common stock on
the OTC Bulletin Board on the date of grant. The option will be subject to the
terms and conditions applicable to options granted under the Company's Stock
Plan, as described in that Plan and the applicable stock option agreement. The
option will be immediately exercisable, but the purchased shares will be subject
to repurchase by the Company at the exercise price in the event that your
service terminates before you vest in the shares. You will vest in 25% of the
option shares after 12 months of service, and the balance will vest in three
equal yearly installments over the following three years of service, as
described in the applicable stock option agreement.
g. Indemnification. The Company will indemnify you for your actions in
good-faith on behalf of the Company pursuant to the Company's standard form
indemnification agreement.
h. You acknowledge the receipt and sufficiency of this consideration
4. Existing Agreement. The Company and you agree that this Agreement shall
supersede in its entirety the Proprietary Information and Inventions Agreement
you executed on December 9, 2005, so that such terms and conditions shall have
no further force or effect as of the effective date of this Agreement.
5. Conflict of Interest. You acknowledge you have not entered into, and you
agree you will not enter into, any agreement, either written or oral, in
conflict with this Agreement or your employment with Company. You also
acknowledge you will not violate any agreement with or rights of any third party
or, except as expressly authorized by Company in writing hereafter, use or
disclose your own or any third party's confidential information or intellectual
property when acting within the scope of your employment or otherwise on behalf
of Company. Further, you have not retained anything containing any confidential
information of a prior employer or other third party, whether or not created by
you.
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6. Company Ownership. Company shall own all right, title and interest (including
patent rights, copyrights, Trade Secret rights, sui generis database rights and
all other intellectual and industrial property rights of any sort throughout the
world) relating to any and all inventions (whether or not patentable), works of
authorship, mask works, designs, know-how, ideas and information made or
conceived or reduced to practice, in whole or in part, by you during the term of
your employment with Company to and only to the fullest extent allowed by law
(collectively "inventions"), and you will promptly disclose all inventions to
Company. You hereby made all assignments necessary to accomplish the foregoing.
You shall further fully and promptly assist Company, at Company's expense, to
further evidence, record and perfect such assignments, and to perfect, obtain,
maintain, enforce, and defend any rights specified to be so owned or assigned.
You hereby irrevocably designate and appoint Company as your agent and
attorney-in-fact, coupled with an interest and with full power of substitution,
to act for and in your behalf to execute and file any document and to do all
other lawfully permitted acts to further the purposes of the foregoing with the
same legal force and effect as if executed by you. Without limiting Section 5 or
Company's other rights and remedies, if, when acting within the scope of your
employment, or otherwise on behalf of Company, you use or (except pursuant to
this Section 6) disclose your own or any third party's confidential information
or intellectual property (or if any invention cannot be fully made, used,
reproduced, distributed and otherwise exploited without using or violating the
foregoing), Company will have and you hereby grant Company a perpetual,
irrevocable, worldwide royalty-free, non-exclusive, sub-licensable right and
license to exploit and exercise all such confidential information and
intellectual property rights.
7. To the extent allowed by law, Section 6 includes all rights of integrity,
disclosure and withdrawal and any other rights that may be known as or referred
to as "moral rights," "artist's rights," "droit moral," or the like
(collectively "Moral Rights"). To the extent you retain any such Moral Rights
under applicable law, you hereby ratify and consent to any action that may be
taken with respect to such Moral Rights by or authorized by Company and agree
not to assert any Moral Rights with respect thereto. You will confirm any such
ratifications, consents and agreements from time to time as requested by
Company.
8. Proprietary Information. You agree that all inventions and all other
business, technical and financial information (including, without limitation,
the identity of and information relating to customers or employees) you develop,
learn or obtain during the term of your employment that relate to Company or the
business or demonstrably anticipated business of Company or that are received by
or for Company in confidence, constitute "Proprietary Information." Proprietary
Information shall be promptly and fully disclosed by you to the Company and
shall be the exclusive property of the Company as against you and your
successors, heirs, devisees, legatees and assigns. You hereby assign to the
Company your entire right, title, and interest therein and shall promptly
deliver to the Company all papers, drawings, models, data, and other material
relating to any of the foregoing Proprietary Information conceived, made,
developed, created or reduced to practice by you as aforesaid. Upon termination
of your employment, you will promptly return to Company all items containing or
embodying Proprietary Information (including all copies), except that you may
keep your personal copies of: (i) your compensation records; (ii) materials
distributed to shareholders generally; and (iii) this Agreement. You also
recognize and agree to Company's telecommunications, networking or information
processing systems (including, without limitation, stored computer files, e-mail
messages and voice messages) and that your activity and any files or messages on
or using any of those systems may be monitored at any time without notice.
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9. Restrictive Covenants.
a. Definitions:
(1) "Company's Business" means the highly competitive business of
developing, manufacturing, marketing, distributing, and/or selling
pharmaceutical products and acquiring pharmaceutical products for the
development of new reformulations, applications, and/or enhanced clinical
benefits.
(2) "Competitive Business(es)" include any firm, partnership, joint
venture, corporation and/or any other entity and/or person, and/or any licensee
of such entity, that engages in the Company's Business.
(3) "Confidential Information" means information about the Company
and its Customers, Customer Prospects, and/or Vendors that is not generally
known outside of the Company, which you will learn of in connection with your
employment with the Company. Confidential Information may include, without
limitation: (1) the Company's business policies, finances, and business plans;
(2) the Company's financial projections, including but not limited to, annual
sales forecasts and targets and any computation(s) of the market share of
Customers and/or Customer Prospects; (3) sales information relating to the
Company's product roll-outs; (4) customized software, marketing tools, and/or
supplies that you will be provided access to by the Company and/or will create;
(5) the identity of the Company's Customers, Customer Prospects, and/or Vendors
(including names, addresses, and telephone numbers of Customers, Customer
Prospects, and/or Vendors); (6) any list(s) of the Company's Customers, Customer
Prospects, and/or Vendors; (7) the account terms and pricing upon which the
Company obtains products and services from its Vendors; (8) the account terms
and pricing of sales contracts between the Company and its Customers; (9) the
proposed account terms and pricing of sales contracts between the Company and
its Customer Prospects; (10) the names and addresses of the Company's employees
and other business contacts of the Company; (11) the techniques, methods, and
strategies by which the Company develops, manufactures, markets, distributes,
and/or sells any of the products described in Section 9.a.(1) and (12)
Proprietary Information described in Section 8 above.
(4) "Customers" means any firm, partnership, corporation and/or any
other entity and/or person that purchased or purchases from the Company any of
the products generally described in Section 9.a.(1)
(5) "Customer Prospects" means any firm, partnership, corporation
and/or any other entity and/or person reasonably expected by the Company to be
likely to purchase from the Company any of the products described in Section
9.a.(1)
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(6) "Material Contact" means personal contact, including, but not
limited to, contact made in person, by phone, or through correspondence via
mail, facsimile, or electronic mail, or the supervision of the efforts of those
who have direct personal contact with Customers, Customer Prospects, or Vendors
in an effort to initiate or further a business relationship between the Company
and such Customers, Customer Prospects, or Vendors.
(7) Your "Job Duties" are those duties you have performed during the
twelve (12) months preceding the execution date of this Agreement, or since you
commenced your employment with the Company if less than twelve (12) months, as
well as those duties as may from time-to-time reasonably be prescribed by the
Company during the period of your employment with the Company.
(8) "Territory" means the United States.
(9) "Trade Secrets" means Confidential Information which meets the
additional requirements of the Delaware Uniform Trade Secrets Act ("DUTSA"), 6
DEL. CODE XXX. xx.xx. 2001-2011, and/or under any other applicable law.
(10) "Vendors" means any individual and/or entity that provides
goods and services to the Company.
b. You agree that your work for the Company will bring you into close
contact with many of the Company's Customers, Customer Prospects, Vendors, Trade
Secrets, and Confidential information. You further agree that the covenants in
this Section 9 are reasonable and necessary to protect the Company's legitimate
business interests and its Customer, Customer Prospect, and/or Vendor
relationships, Trade Secrets, and Confidential Information.
c. You further agree that, due to your position, your engaging in any
activity that may breach this Agreement is likely to cause the Company great,
immediate and irreparable harm.
d. Duty of Confidentiality. You agree that, during your employment with
the Company and for a period of two (2) years following the termination of such
employment for any reason, you shall not directly or indirectly divulge or make
use of any Confidential Information outside of your employment with the Company
(so long as the information remains confidential) without the prior written
consent of the Company. You shall not directly or indirectly misappropriate,
divulge, or make use of Trade Secrets for so long as the information remains a
Trade Secret as defined by the DUTSA and/or any other applicable law. You
further agree that, if you are questioned about information subject to this
agreement by anyone not authorized to receive such information, you will notify
the Company within 24 hours. You acknowledge that applicable law may impose
longer duties of non-disclosure, especially for Trade Secrets, and that such
longer periods are not shortened by this Agreement.
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e. Return of Confidential Information And Company Property. You agree to
return all Confidential Information and/or Trade Secrets within three (3)
calendar days following the termination of your employment for any reason. To
the extent you maintain Confidential Information and/or Trade Secrets in
electronic form on any computers or other electronic devices owned by you, you
agree to irretrievably delete all such information and to confirm under penalty
of perjury the fact of deletion in writing within three (3) calendar days
following termination of employment with the Company for any reason. You also
agree to return all Company property in your possession at the time of the
termination of the employment with the Company, including but not limited to all
documents, records, tapes, and other media of every kind and description
relating to the Company's Business and its Customers, Customer Prospects, and/or
Vendors, and any copies, in whole or in part, whether or not prepared by you,
all of which shall remain the sole and exclusive property of the Company.
f. Non-Competition. You covenant and agree that, during the term of your
employment with the Company and for twelve (12) months after the termination
thereof, regardless of the reason for the employment termination, you will not,
directly or indirectly, anywhere in the Territory, on behalf of any Competitive
Business perform the same or substantially the same Job Duties.
g. Non-Solicitation of Customers, Customer Prospects, and Vendors. You
covenant and agree that, during the term of your employment with the Company and
for twelve (12) months after the termination thereof, regardless of the reason
for the employment termination, you will not, directly or indirectly, solicit or
attempt to solicit any business from any of the Company's Customers, Customer
Prospects, or Vendors with whom you had Material Contact during the last two (2)
years of your employment with the Company.
h. Non-Solicitation of Employees. You covenant and agree that, during the
term of your employment with the Company and for twelve (12) months after the
termination thereof, regardless of the reason for the employment termination,
you will not, directly or indirectly, on your own behalf or on behalf of or in
conjunction with any person or legal entity, recruit, solicit, or induce, or
attempt to recruit, solicit, or induce, any non-clerical employee of the Company
with whom you had personal contact or supervised while performing your Job
Duties, to terminate their employment relationship with the Company.
10. At-Will Status. You acknowledge and agree that nothing in this Agreement is
a guarantee or assurance of employment for any specific period of time. Rather,
you understand that you are an at-will employee and that the Company may
terminate your employment at any time for any reason. You are similarly free to
resign at any time for any reason.
11. Severance Benefits. If the Company terminates your employment without Cause,
you shall also receive Severance Benefits for no less than 6 months (in an
amount equal to your then base salary over such time period less applicable
withholdings) in exchange for your execution and delivery to the Company of the
General Release attached as Exhibit A hereto. You shall not be entitled to
Severance Benefits if the Company terminates your employment with Cause or if
you resign from the Company for any reason.
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12. Termination of Benefits. You acknowledge that the restrictive covenants
contained in Section 9 are integral to this Agreement and that, if you engage in
any activities prohibited by Section 9, the vesting of any option shares of the
Company's Common Stock shall be voided at the time of your breach of this
Agreement, even if the Arbitrator(s) does not enforce the restrictive covenants
above due to overbreadth. Further, if you engage in any activities prohibited by
Section 9 and are receiving Severance Benefits, the Company shall be entitled to
cease such payments at the time of your breach of this Agreement.
13 Governing Law and Remedies. In addition to any other remedies at law or in
equity it may have, each party shall be entitled to seek equitable relief,
including injunctive relief and specific performance, in connection with a
breach of the provisions of this Agreement. The parties acknowledge and agree
that they are bound by their arbitration obligations under Exhibit B attached
hereto, which the parties also hereby agree to execute contemporaneously and is
an integral part of this Agreement. The parties agree and acknowledge that all
provisions of this Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware exclusively and without reference to
principles of conflict of laws. The Federal Arbitration Act ("FAA") will
supersede state laws to the extent inconsistent. The Arbitrator(s) shall have no
authority to apply the law of any other jurisdiction.
_______ YOUR INITIALS TO ACKNOWLEDGE AGREEMENT TO GOVERNING LAW AND REMEDIES
PROVISION IN SECTION 13.
14. Construction of Agreement. The covenants contained herein shall be presumed
to be enforceable, and any reading causing unenforceability shall yield to a
construction permitting enforcement. If any single covenant or clause shall be
found unenforceable, it shall be severed and the remaining covenants and clauses
enforced in accordance with the tenor of the Agreement. In the event the
Arbitrator(s) should determine not to enforce a covenant as written due to
overbreadth, the parties specifically agree that said covenant shall be modified
and enforced to the extent reasonable, whether said modifications are in time,
territory, or scope of prohibited activities.
15. Entire Agreement. This Agreement, which includes Exhibits A and B,
represents the entire understanding between the Company and you on the matters
addressed herein and may not be modified, changed or altered by any promise or
statement by the Company, other than in writing signed by you and an authorized
representative of the Company. The waiver by the Company a breach of any
provision of this Agreement by any employee shall not be construed as a waiver
of rights with respect to any subsequent breach by you.
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YOU ACKNOWLEDGE THAT YOU HAVE CAREFULLY READ AND UNDERSTAND THE PROVISIONS OF
THIS AGREEMENT, AND UNDERSTAND THAT YOU HAVE THE RIGHT TO SEEK INDEPENDENT
ADVICE AT YOUR EXPENSE OR TO PROPOSE MODIFICATIONS PRIOR TO SIGNING THE
AGREEMENT AND HAVE NEGOTIATED PROPOSED MODIFICATIONS TO THE EXTENT YOU DEEMED
NECESSARY. NOTHING CONTAINED IN THIS AGREEMENT CREATES A CONTRACTUAL RIGHT TO A
CONTINUED EMPLOYMENT FOR A DEFINITE TERM. YOU REPRESENT AND WARRANT THAT YOU
HAVE ENTERED INTO THIS AGREEMENT VOLUNTARILY AND AFTER CONSULTING WITH
WHOMSOEVER YOU WISHED.
Executed this 11th day of July, 2006.
(day) (month)
/s/ Xxxxxx Xxxxxx By: /s/ Xxxxxx X. Xxxxx
----------------- ----------------------
XXXXXX XXXXXX AURIGA LABORATORIES, INC.
(Print Name) Xxxxxx Xxxxxx Title: Chief Executive Officer
Social Security #: __________________ -----------------------
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EXHIBIT B - ARBITRATION CLAUSE
(1) In consideration of the benefits described in the Employment Agreement
executed by XXXXXX XXXXXX (the "Employee" or "you") and AURIGA LABORATORIES,
INC., a Delaware corporation, along with its subsidiaries, parents, joint
ventures, affiliated entities, and includes its successors and assigns or any
such related entities (collectively the "Company") on the same date hereto and
into which this Exhibit B is incorporated, ("Agreement"), the Company and you
hereby agree that any controversy or claim arising under federal, state and
local statutory or common or contract law between the Company and you involving
the construction or application of any of the terms, provisions, or conditions
of the Agreement, including, but not limited to, breach of contract, tort,
and/or fraud, must be submitted to arbitration on the written request of either
party served on the other. Arbitration shall be the exclusive forum for any such
controversy. For example, if the Company and you have a dispute concerning the
interpretation or enforceability of one or more restrictive covenants, the
parties will resolve the dispute exclusively through arbitration. The
Arbitrator's decision shall be final and binding on both parties.
(2) If any claim or cause of action at law or in equity is filed by either
party in any state or federal court which results in arbitration being compelled
and/or the claim or cause of action being dismissed, stayed, and/or removed to
arbitration pursuant to this Agreement, the party who instituted the claim or
cause of action in state or federal court, either wholly or in substantial part,
shall, at the discretion of the Arbitrator(s), reimburse the respondent for its
reasonable attorneys' fees, costs, and necessary disbursements to the extent
permitted by law, in addition to any other relief to which it may be entitled,
related to the state or federal court claim or action.
(3) Excluding the initial filing fee, which shall be borne by the
claimant, the cost of arbitration shall be borne by the Company, unless the
Arbitrator determines that any claim(s) brought by you was/were wholly frivolous
or fraudulent. If an arbitration or any action at law or in equity is necessary
to enforce or interpret the terms of this Agreement, the prevailing party,
either wholly or in substantial part, shall, at the discretion of the
Arbitrator, be entitled to its reasonable attorneys' fees, costs, and necessary
disbursements to the extent permitted by law, in addition to any other relief to
which it may be entitled.
(4) The arbitration will be conducted in Atlanta, Georgia and all claims
shall be submitted to and administered by the American Arbitration Association's
Southeast Case Management Center in Atlanta, Georgia.
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(5) The arbitration shall comply with and be governed by the American
Arbitration Association's Commercial Arbitration Rules ("Rules") effective as of
the execution date below, to the extent such Rules are not contrary to the
express provisions of this Agreement. The parties also agree that the American
Arbitration Association Optional Rules for Emergency Measures of Protection
("Emergency Rules") shall apply to proceedings brought by either party. The
above Rules and Emergency Rules can be found at the following page of the
American Arbitration Association's website, xxx.xxx.xxx:
xxxx://xxx.xxx.xxx/xx.xxx?xxx00000. You acknowledge that you should read these
Rules and Emergency Rules and that it is your responsibility to be familiar with
them prior to signing the Agreement. If you are unable to access the Rules
and/or Emergency Rules at the above website, you should request a copy of them
from a Company official prior to signing the Agreement.
(6) The parties agree and acknowledge that all provisions of this
Agreement shall be governed by and construed in accordance with the laws of the
State of Delaware exclusively and without reference to principles of conflict of
laws. The Federal Arbitration Act ("FAA") will supersede state laws to the
extent inconsistent. Any claim(s) involving the construction or application of
this Agreement must be submitted to arbitration within the statute of
limitations period for such claim(s) under Delaware state law and shall be
dismissed if the statute of limitations period is not met. The Arbitrator(s)
shall have no authority to apply the law of any other jurisdiction.
(7) The dispute shall be heard and determined by one Arbitrator, unless
both parties mutually consent in writing signed by you and an authorized
representative of Company to a panel of three (3) Arbitrators. Unless both
parties mutually consent otherwise, the parties agree and request that the
Arbitrator(s) issue a reasoned award in accordance with Commercial Arbitration
Rule R-42(b). WE UNDERSTAND THAT BY SIGNING THIS AGREEMENT WE ARE GIVING UP OUR
RESPECTIVE RIGHTS TO A JURY TRIAL.
Executed this ____11th_______day of _________JULY________________, 2006.
(day) (month)
/s/ Xxxxxx Xxxxxx By: /s/ Xxxxxx X. Xxxxx
-------------------------- ------------------------------
XXXXXX XXXXXX AURIGA LABORATORIES, INC.
(Print Name) Xxxxxx Xxxxxx Title: Chief Executive Officer
Social Security #:________
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EXHIBIT A
GENERAL RELEASE AND SEVERANCE AGREEMENT
AURIGA LABORATORIES, INC., a Delaware corporation, (the "Company"), and
XXXXXX XXXXXX (the "Employee"), of _____________________________, hereby enter
into this General Agreement and Severance Agreement ("Agreement") and agree as
follows:
1. SEPARATION DATE. The parties agree that Employee's last day of employment
with the Company is ___________________________ (the "Separation Date").
2. EFFECTIVE DATE. Employee may accept this Agreement only by signing,
initialing each page, and dating this Agreement in the spaces provided and
delivering the Agreement to Auriga Laboratories, Inc., Attention:
______________________________________________________
_____________________________________________________, so that the Company
receives it no later than the Company's normal close of business on the later of
(a) the twenty-sixth (26th) day following the Separation Date, or (b) if the
twenty-sixth (26th) day following the Separation Date is a Saturday, Sunday, or
legal holiday, the next day that is not a Saturday, Sunday, or legal holiday.
The "Effective Date" of this Agreement shall be ten (10) days after the date on
which Employee signs and timely delivers the Agreement pursuant to this Section,
so long as Employee has not revoked the Agreement pursuant to Section 3, below.
3. REVOCATION. Employee has seven (7) days after executing and delivering this
Agreement in which to revoke this Agreement. If Employee chooses to revoke,
Employee must give notice of Employee's decision in writing, delivered to Auriga
Laboratories, Inc., Attention:
____________________________________________________________________ by
facsimile (______________________) and registered mail, with the Company
receiving the notice within seven (7) days of the date of Employee's execution.
If Employee revokes, Employee understands Employee will not receive any of the
benefits described herein.
4. SEPARATION BENEFITS. Although Employee is not otherwise entitled to benefits
under this Section 4 and provided that Employee satisfies the conditions of this
Agreement and does not revoke this Agreement, the Company will do the following:
(a) Pay to Employee the gross amount of $ ______________________, which
equals six (6) months of severance pay at a rate of $ _________________per week
("Separation Benefits"). This amount, less legal deductions, will be paid in
accordance with Employee's current pay schedule for a period from
___________________ to ___________________ (the "Severance Pay Period"),
provided that the first payment shall not be made until after the expiration of
the revocation period, and which first payment will include any missed payments
between the first payment due date and the expiration of the revocation period.
(b) Employee will cease to be eligible to participate under any bonus,
incentive compensation, commission, medical, vision, dental, life insurance,
retirement, and other compensation or benefit plans of the Company or any
affiliate on the Separation Date. Thereafter, Employee will have no rights under
any of those plans, except as follows:
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i) If Employee was enrolled in the Company's medical, vision, and/or
dental plans on the Separation Date, Employee may elect to continue Employee's
participation and that of Employee's qualified dependents in those plans in
accordance with the federal law known as "COBRA." If Employee does so by signing
and returning the COBRA election form in a timely manner, then, through the end
of the Severance Pay Period, or, if earlier, until the date Employee begins new
employment (including without limitation self-employment or engaging in an
enterprise as a sole proprietor or partner), if Employee is eligible to
participate in group medical and dental plans in connection with such new
employment, the Company will contribute to the premium cost of Employee's
coverage and that of Employee's qualified dependents under its medical, vision,
and dental plans at the same rate that it contributes to the premium cost of
coverage of active employees and their qualified dependents. To be eligible for
these premium contributions, however, Employee must pay the remainder of the
premium costs by deductions from Employee's severance payments. After the
Severance Pay Period when the Company's contributions end, Employee may continue
coverage for the remainder of the COBRA period, if any, by paying the full
premium cost plus an administrative fee.
ii) Employee will retain vested benefits under all qualified
retirement plans of the Company, and all rights associated with such benefits,
as determined under the official terms of those plans.
(c) Employee is responsible for paying any taxes on amounts Employee
receives in connection with this Agreement. Employee agrees to indemnify and
hold harmless the Company for all expenses, penalties, or interest charges the
Company incurs as a result of not paying taxes on, or withholding taxes from,
amounts paid under this Agreement. Employee further agrees not to make any claim
against the Company or any other person based on how the Company reports amounts
paid under this Agreement to tax authorities, or if an adverse determination is
made as to the tax treatment of any amounts payable under this Agreement. In
addition, Employee understands and agrees that the Company has no duty to try to
prevent such an adverse determination.
5. COMPLETE AGREEMENT
(a) CLAIMS RELEASED BY EMPLOYEE: In consideration of the Separation
Benefits set forth in Section 4, the Employee irrevocably and unconditionally
releases all the Claims defined herein that Employee may now have against the
Released Parties defined in Section 5.(b), except that Employee is not releasing
any Claim that relates to: (1) Employee's right to enforce this Agreement, or
(2) any rights or claims that arise after Employee signs this Agreement. Subject
only to the exceptions just noted, Employee is releasing all known and unknown
claims, promises, causes of action, or similar rights of any type that Employee
may have with respect to any Released Parties ("Claims"). Employee understands
that the Claims Employee is releasing might arise under many different laws
(including statutes, regulations, other administrative guidance, and common law
doctrines), such as the following:
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Anti-discrimination statutes, such as, but not limited to, the Age
Discrimination in Employment Act ("ADEA") and Executive Order 11,141,
which prohibit age discrimination in employment; Title VII of the Civil
Rights Act of 1964, which prohibits discrimination and harassment based on
race, color, national origin, religion, gender, pregnancy, and prohibits
retaliation; the Equal Pay Act, which prohibits paying men and women
unequal pay for equal work; the Americans With Disabilities Act and
Sections 503 and 504 of the Rehabilitation Act of 1973, which prohibit
discrimination based on disability; Section 1981 of the Civil Rights Act
of 1866, which prohibits discrimination on the basis of race, color or
national origin and any other federal, state, or local laws prohibiting
employment discrimination.
Federal employment statutes, such as, but not limited to, the WARN Act,
which requires that advance notice be given of certain work force
reductions; the Employee Retirement Income Security Act of 1974, which,
among other things, protects employee benefits; the Fair Labor Standards
Act of 1938, which regulates wage and hour matters; the Family and Medical
Leave Act of 1993 ("FMLA"), which requires employers to provide leaves of
absence under certain circumstances; and any other federal laws relating
to employment, such as veterans' reemployment rights laws.
Actions relating to the Company's business and/or your purchase and
ownership of Company equity, such as, but not limited to, actions and
claims brought under any federal, state, or local law, including without
limitation: (i) any of the Company representations, warranties,
obligations, duties or covenants arising under any agreement pursuant to
which you were granted a right to acquire or actually acquired the
Company's securities or under any rights you may have as a stockholder of
the Company; (ii) the operating or financial performance of the Company,
including but not limited to, the terms, conditions and circumstances of
any capital-raising transaction or the failure to raise capital, or any
acquisition or the failure to consummate an acquisition; (iii) the
existence or execution of, or failure to execute, any element of the
Company business plans, financing plans, or strategies, or any amendment,
revision, modification or termination of such plans or strategies; and
(iv) any claim of breach of fiduciary duty, breach of duty of care, breach
of contract, negligence, mismanagement, malfeasance, negligent
misrepresentation, fraud, fraud in the inducement and/or other tortious
conduct.
Other laws and rights of action, such as, but not limited to, any federal,
state, or local laws providing workers' compensation benefits, restricting
an employer's right to terminate employees, or otherwise regulating
employment; any federal, state, or local law enforcing express or implied
employment contracts or requiring an employer to deal with employees
fairly or in good faith; any other federal, state, or local laws providing
recourse for alleged wrongful discharge, improper garnishment, assignment,
or deduction from wages, health and/or safety violations, improper drug
and/or alcohol testing, tort, physical or personal injury, emotional
distress, fraud, negligence, negligent misrepresentation, defamation,
abusive litigation, and similar or related claims.
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Examples of released Claims include, but are not limited to, the following
(except to the extent explicitly preserved by Section 5.(a) of this
Agreement): (i) Claims that in any way relate to Employee's employment
with the Company, or the termination of that employment, such as Claims
for compensation, bonuses, commissions, lost wages, or unused accrued
vacation or sick pay, including, but not limited to, claims arising under
any express or implied employment contract; (ii) Claims that in any way
relate to allegations of alleged racial or sexual harassment, race or
gender or age discrimination, or retaliation; (iii) Claims that in any way
relate to any state law tort causes of action, and (iv) any Claims to
attorneys' fees or other indemnities with respect to Claims Employee is
releasing.
(b) RELEASED PARTIES: The "Released Parties" are the Company, all current,
future and former parents, subsidiaries, related companies, partnerships, or
joint ventures, and, with respect to each of them, their predecessors and
successors; and, with respect to each such entity, all of its past, present, and
future employees, officers, directors, stockholders, owners, representatives,
assigns, attorneys, agents, and any other persons acting by, through, under or
in concert with any of the persons or entities listed in this Section, and their
successors.
(c) PURSUIT OF RELEASED CLAIMS: Employee represents and warrants that he
has not filed or caused to be filed any lawsuit, complaint, or charge with
respect to any claim this Agreement purports to waive, and Employee promises
never to file or prosecute any lawsuit, complaint, or charge based on such
claims. Should any governmental entity pursue a claim on Employee's behalf,
Employee shall request that the government cease immediately. Employee will not
accept any monetary or other relief that any governmental entity or party may
seek or obtain on Employee's behalf from the Released Parties.
(d) OWNERSHIP OF CLAIMS: Employee represents and warrants that he has not
assigned or transferred any Claim he is purporting to release, nor has Employee
attempted to do so. Employee expressly represents and warrants that Employee has
the full legal authority to enter into this Agreement for Employee and
Employee's estate, and does not require the approval of anyone else.
(e) FMLA RIGHTS HONORED: Employee agrees he has received all FMLA leave
and other benefits to which Employee believes Employee is entitled, that he has
no pending request for FMLA leave with the Company, nor has the Company
mistreated Employee in any way on account of any illness or injury to Employee
or any immediate family member.
(f) UNKNOWN CLAIMS: Employee understands that Employee is releasing the
Released Parties from Claims that Employee may not know about. That is
Employee's KNOWING AND VOLUNTARY INTENT, even though Employee recognizes that
someday Employee might learn that some or all of the facts Employee currently
believes to be true are untrue and even though Employee might then regret having
signed this Agreement. Nevertheless, Employee is assuming that risk and agrees
that this Agreement shall remain effective in all respects in any such case.
Employee expressly waives all rights Employee might have under any law that is
intended to protect Employee from waiving unknown claims. Employee understands
the significance of doing so.
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6. FALSE CLAIMS REPRESENTATIONS, COOPERATION, AND PROMISES: With this Agreement,
Employee acknowledges that Employee has disclosed to the Company any information
Employee has concerning any conduct involving the Company that Employee has any
reason to believe may be unlawful. Employee promises to cooperate fully with
Company in any investigation the Company undertakes into matters which occurred
during Employee's employment with Company. If requested by Company, Employee
will promptly and fully respond to all inquiries from Company and its
representatives relating to any claims or lawsuits which relate to matters which
occurred during Employee's employment with Company. Employee will not
voluntarily participate in any proceeding, agency investigation, litigation or
arbitration against the Company. If Employee is contacted to participate in any
way in any claim or in any litigation at any time, Employee agrees to provide
the Company's General Counsel with prompt written notice, and in no event shall
such notice be delivered to the Company later than one (1) day after receipt by
Employee, thus providing the Company with the opportunity to object to and/or be
present at or participate in the proceeding. This Section does not prohibit
Employee's participation as a witness if Employee is compelled to appear through
an enforceable subpoena or an enforceable court order, but does require that
Employee provide Company with notice and the opportunity to object and/or
participate. Before Employee discloses any Company information or engages in any
other activity that could possibly violate the promises Employee has made
herein, Employee promises that Employee will discuss Employee's proposed actions
with the Company's General Counsel, who will advise Employee whether the
proposed actions would violate these promises.
7. NO ADMISSION. Employee agrees not to assert that this Agreement constitutes
an admission by the Released Parties of any guilt, wrongdoing, and/or liability,
and Employee understands and agrees that the Released Parties expressly deny any
guilt, wrongdoing, and/or liability.
8. NO DISPARAGEMENT. Employee will not make any disparaging or defamatory
statements, whether written or verbal, regarding the Company and any of its
employees, compelled truthful testimony under oath being expressly excepted.
9. No Waiver. Employee acknowledges and agrees that this Agreement shall not act
as or constitute a waiver, release or compromise of any action, claim or cause
of action which the Company may have against the Employee, whether now existing
or hereafter arising, under this Agreement or otherwise.
10. GOVERNING LAW AND REMEDIES. In addition to any other remedies at law or in
equity it may have, each party shall be entitled to seek equitable relief,
including injunctive relief and specific performance, in connection with a
breach of the provisions of this Agreement. The parties acknowledge and agree
that they are bound by their arbitration obligations under Exhibit B attached
hereto, which is an integral part of this Agreement. The parties agree and
acknowledge that all provisions of this Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware exclusively and
without reference to principles of conflict of laws. The Federal Arbitration Act
("FAA") will supersede state laws to the extent inconsistent. The Arbitrator(s)
shall have no authority to apply the law of any other jurisdiction.
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_______ YOUR INITIALS TO ACKNOWLEDGE AGREEMENT TO GOVERNING LAW AND REMEDIES
PROVISION IN SECTION 10.
11. CONFIDENTIAL AGREEMENT. Employee agrees that the terms of this Agreement are
confidential. Unless required or otherwise permitted by law to do so, Employee
will not disclose to others any information concerning the terms of the
Agreement, the benefits paid under it or the fact of its payment, except that
Employee may disclose this information to Employee's immediate family members,
Employee's attorney, accountant or other professional advisor to whom the
disclosure is necessary for them to provide professional services to Employee.
12. NOTICE.
(a) TO THE COMPANY. Employee will send all communications to the Company
in writing, addressed as follows (or in any other manner the Company notifies
Employee to use):
IF MAILED: ___________________________________
IF FAXED: ____________________________________
(b) TO EMPLOYEE. All communications from the Company to the Employee
relating to this Agreement must be sent to the Employee in writing at his home
address, which he is obligated and agrees to keep current with the Company.
13. GENERAL
(a) This Agreement contains the entire agreement of the Company with
Employee with respect to the matters contained herein. The parties further agree
that no amendment or modification of this Agreement shall be valid or binding
upon any of them unless made in writing and signed by all parties hereto.
(b) This Agreement shall be binding upon and inure to the benefits of the
parties hereto and their respective heirs, administrators, representatives,
executors, successors, transferees, attorneys, and assigns forever. This
Agreement shall not be assignable by Employee but shall be freely assignable by
the Company.
(c) The covenants contained herein shall be presumed to be enforceable,
and any reading causing unenforceability shall yield to a construction
permitting enforcement. If any single covenant or clause shall be found
unenforceable, it shall be severed and the remaining covenants and clauses
enforced in accordance with the tenor of the Agreement.
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(d) This Agreement shall be construed as a whole according to its fair
meaning. It shall not be construed strictly for or against Employee or any
Released Party. Unless the context indicates otherwise, the term "or" shall be
deemed to include the term "and" and the singular or plural number shall be
deemed to include the other. Captions are intended solely for convenience of
reference and shall not be used in the interpretation of this Agreement.
(e) This Agreement may be executed in any number of counterparts, each of
which shall constitute an original and all of which, when taken together, shall
constitute one agreement.
14. CONSIDERATION OF AGREEMENT/ADEA AGREEMENT REQUIREMENTS HAVE BEEN SATISFIED:
Employee understands that this Agreement has to meet certain requirements to
validly release any Age Discrimination in Employment Act ("ADEA") claims
Employee might have had, and Employee represents and warrants that all such
requirements are satisfied. Employee acknowledges that, before signing this
Agreement, Employee was given twenty-one (21) days to consider this Agreement.
Employee further acknowledges that: (a) Employee took advantage of this period
to consider this Agreement before signing it; (b) Employee carefully read this
Agreement; (c) Employee fully understands it; (d) Employee's entering into this
Agreement has been knowing and voluntary (i.e., free from fraud, duress,
coercion, or mistake of fact); (e) this Agreement is in writing and is
understandable; (f) in this Agreement, Employee waives current ADEA claims; (g)
Employee has not waived future ADEA claims; (h) Employee is receiving valuable
consideration in exchange for execution of this Agreement that Employee would
not otherwise be entitled to receive; and (i) the Company encouraged Employee in
writing to discuss this Agreement with Employee's attorney (at Employee's own
expense) before signing it, and that Employee did so to the extent Employee
deemed appropriate. Employee further acknowledges that Employee has seven (7)
days after executing and delivering this Agreement in which to revoke this
Agreement by written notice as set forth in Section 3.
15. GENERAL CONSEQUENCES. Should Employee violate any provision of this
Agreement, including and especially Employee's restrictive covenant obligations
set forth in his Employment Agreement the Employee executed on
_____________________, Employee shall not be entitled to any Separation
Benefits, and the Company shall be entitled to cease such payments. In addition
to any other remedies or relief that may be available, Employee also agrees to
pay the reasonable attorneys' fees and any damages the Company may incur as a
result of Employee breaching a promise made in this Agreement (such as by
Employee's suing a Released Party over a released Claim) or if any
representation made in this Agreement was false when made. Employee further
agrees that the Company will be irreparably harmed by any actual or threatened
violation of Section 11, that involves disclosure of the existence, terms, or
amount payable under this Agreement, and that the Company will be entitled to an
injunction prohibiting Employee from committing any such violation.
Page vii of ii
================================================================================
TAKE THIS RELEASE HOME, READ IT, AND CAREFULLY CONSIDER ALL OF ITS
PROVISIONS BEFORE SIGNING IT: IT INCLUDES A RELEASE OF KNOWN AND UNKNOWN
CLAIMS. IF EMPLOYEE WISHES, EMPLOYEE SHOULD TAKE ADVANTAGE OF THE FULL
CONSIDERATION PERIOD AFFORDED BY SECTION 14, AND EMPLOYEE SHOULD CONSULT
EMPLOYEE'S ATTORNEY.
================================================================================
AURIGA LABORATORIES, INC.
By: ___________________________ Date: __________________
EMPLOYEE:
________________________________ Date: __________________
XXXXXX XXXXXX
Social Security No: ___________
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