Separation Agreement and General Release
Exhibit 10.1
Separation Agreement and General Release
This Separation Agreement and General Release (this “Agreement”) is entered into on October
19, 2010, by and between Xxxxxxxxxxx Xxxxxxx, X.Xx. (the “Executive”) and Impax Laboratories, Inc.
(the “Company”).
In consideration of the mutual promises, agreements and representations contained herein, and
intending to be legally bound hereby, the Executive and the Company agree as follows:
1. Confirmation of Termination. The Executive’s employment with the Company will
terminate as of October 19, 2010 (the “Termination Date”). The Executive acknowledges that the
Termination Date is the termination date of his employment for purposes of participation in and
coverage under all benefit plans and programs sponsored by or through the Company except as
otherwise set forth in this Agreement. The Executive acknowledges and agrees that the Company
shall not have any obligation to rehire the Executive, nor shall the Company have any obligation to
consider him for employment, after the Termination Date. The Executive agrees that he will not
seek employment with the Company at any time in the future.
2. Resignation. Effective as of the Termination Date, the Executive hereby resigns as
an officer of the Company and any of its affiliates and from any positions held with any other
entities at the direction or request of the Company or any of its affiliates. The Executive agrees
to promptly execute and deliver such other documents as the Company shall reasonably request to
evidence such resignations. In addition, the Executive hereby agrees and acknowledges that the
Termination Date shall be date of his termination from all other offices, positions, trusteeships,
committee memberships and fiduciary capacities held with, or on behalf of, the Company or any of
its affiliates.
3. Termination Benefits. Upon the Executive’s execution and delivery of this
Agreement and failure to revoke it within the time specified in Section 10 below, then, subject to
Section 9 below, the Executive will be entitled to receive the following payments and benefits (the
"Termination Benefits”) from the Company, subject to taxes and all applicable withholding
requirements:
(a) $650,000, to be paid in a lump sum on or before November 30, 2010, which payment
the Executive and the Company believe constitutes a short term deferral within the meaning
of Section 409A of the Internal Revenue Code;
(b) the immediate vesting of those unvested stock options and restricted stock
previously granted to the Executive that are scheduled to vest within 12 months following
the Termination Date, which the Executive acknowledges consists of 26,875 stock options and
10,750 shares of restricted stock;
(c) the right to exercise all vested stock options held by the Executive for six
months following the Termination Date, notwithstanding any provision to the contrary in the
related option agreements; and
(d) for a period of 12 months following the Termination Date, all group life,
disability, hospital, surgical and major medical insurance benefits received by the
Executive immediately prior to the Termination Date.
Notwithstanding anything herein to the contrary, the Executive’s right to receive the Amounts
and Benefits (as defined in the Employment Agreement effective as of January 1, 2010 between the
Company and the Executive (the “Employment Agreement”) shall not be subject to Executive’s
execution and delivery of this Agreement. The Executive acknowledges and agrees that the
Termination Benefits exceed any payment, benefit, or other thing of value to which the Executive
might otherwise be entitled under any policy, plan or procedure of the Company and/or any agreement
between the Executive and the Company, except as provided above.
4. General Releases and Waiver. (a) In consideration of the Termination Benefits,
and for other good and valuable consideration, receipt of which is hereby acknowledged, the
Executive for himself and for his heirs, executors, administrators, trustees, legal representatives
and assigns (collectively, the “Releasors”), hereby releases, remises, and acquits the Company and
its affiliates and all of their respective past, present and future parent entities, subsidiaries,
divisions, affiliates and related business entities, any of their successors and assigns, assets,
employee benefit plans or funds, and any of their respective past and/or present directors,
officers, fiduciaries, agents, trustees, administrators, managers, supervisors, shareholders,
investors, employees, legal representatives, agents, counsel and assigns, whether acting on behalf
of the Company or its affiliates or, in their individual capacities (collectively, the “Releasees”
and each a “Releasee”) from any and all claims, known or unknown, which the Releasors have or may
have against any Releasee arising on or prior to the date of this Agreement and any and all
liability that any such Releasee may have to the Executive, whether denominated claims, demands,
causes of action, obligations, damages or liabilities arising from any and all bases, however
denominated, including (a) any claim under the Age Discrimination in Employment Act of 1967, the
Americans with Disabilities Act of 1990, the Family and Medical Leave Act of 1993, the Civil Rights
Act of 1964, the Civil Rights Act of 1991, Section 1981 of the Civil Rights Act of 1866, the Equal
Pay Act, the Immigration Reform and Control Act of 1986, the Employee Retirement Income Security
Act of 1974, (excluding claims for accrued, vested benefits under any employee benefit or pension
plan of the Company, subject to the terms and conditions of such plan and applicable law), the
Xxxxxxxx-Xxxxx Act of 2002, all as amended; (b) any claim under the California Fair Employment and
Housing Act and any other provision of the California Labor Law, all as amended; (c) any claim
under any other Federal, state, or local law and any workers’ compensation or disability claims
under any such laws; and (d) any claim for attorneys’ fees, costs, disbursements and/or the like
related to such claims. The foregoing release includes any and all claims arising from or relating
to the Executive’s employment relationship with Company and his service relationship as an officer
of the Company, or as a result of the termination of such relationships. The Executive further
agrees that he will not file or permit to be filed on his behalf any such claim. Notwithstanding
the preceding sentence or any other provision of this Agreement, the foregoing release is not
intended to interfere with the Executive’s right to file a charge with the Equal Employment
Opportunity Commission (“EEOC”) in connection with any claim he believes he may have against any
Releasee. However, by executing this Agreement, the Executive hereby waives the right to recover
in any proceeding he may bring before the EEOC or any state human rights commission or in any
proceeding brought by the EEOC or any state human rights commission on his behalf. The
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foregoing release is for any relief, no matter how denominated, including injunctive relief,
wages, back pay, front pay, compensatory damages, or punitive damages; provided, however, that the
release shall not apply to (i) the obligation of the Company to provide the Executive with the
Amounts and Benefits and the Termination Benefits; (ii) the Executive’s rights to indemnification
from the Company or rights to be covered under any applicable insurance policy with respect to any
liability the Executive incurred or might incur as an employee, officer or director of the Company
including the Executive’s rights under Section 8 of the Employment Agreement; (iii) any right
Executive may have to be defended from, and to be indemnified for, any costs of defense against any
claim or action, by a private or governmental agency or party, arising from or related to the
Executive’s service with the Company, or any events transpiring or actions taken during or related
to the Executive’s period of service with the company, whether such actions were by the Executive
or others; or (iv) any right the Executive may have to obtain contribution as permitted by law in
the event of entry of judgment against the Executive as a result of any act or failure to act for
which the Executive, on the one hand, and Company or any other Releasee, on the other hand, are
jointly liable.
(b) In consideration of the Executive’s general release, and for other good and valuable
consideration, receipt of which is hereby acknowledged, the Company hereby releases, remises, and
acquits the Executive from any and all claims, known or unknown, which the Company has or may have
against the Executive arising on or prior to the date of this Agreement (including any claim for
recovery of a portion of Executive’s hiring bonus pursuant to the Company’s offer of employment
dated November 12, 2008) and any and all liability that the Executive may have to the Company,
whether denominated claims, demands, causes of action, obligations, damages or liabilities arising
from any and all bases, however denominated.
5. Continuing Covenants of Executive. The Executive acknowledges and agrees that he
remains subject to the provisions of Section 7 of the Employment Agreement, which shall remain in
full force and effect for the periods set forth therein.
6. Additional Covenant of the Company. The Company agrees to take such steps as may
reasonably be required to enable the Executive to retain for his personal use the mobile telephone
number (000) 000-0000.
7. Heirs and Assigns. The terms of this Agreement shall be binding upon and inure to
the benefit of the parties named herein and their respective successors and permitted assigns.
8. Miscellaneous. This Agreement will be construed and enforced in accordance with
the laws of the State of Delaware without regard to the principles of conflicts of law. If any
provision of this Agreement is held by a court of competent jurisdiction to be illegal, void or
unenforceable, such provision shall have no effect; however, the remaining provisions will be
enforced to the maximum extent possible. The parties acknowledge and agree that, except as
otherwise set forth herein, this Agreement constitutes the complete understanding between the
parties with regard to the matters set forth herein and, except as otherwise set forth herein,
supersedes any and all agreements, understandings, and discussions, whether written or oral,
between the parties. No other promises or agreements are binding unless in writing and signed by
each of the parties after the Agreement Effective Date (as defined below). Should any provision of
this Agreement require interpretation or construction, it is agreed by the parties that the entity interpreting or construing this Agreement shall not apply a presumption against one
party by reason of the rule of construction that a document is to be construed more strictly
against the party who prepared the document.
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9. Knowing and Voluntary Waiver. The Executive acknowledges that he: (a) has
carefully read this Agreement in its entirety; (b) has had an opportunity to consider it for at
least 21 days; (c) is hereby advised by the Company in writing to consult with an attorney of his
choosing in connection with this Agreement; (d) fully understands the significance of all of the
terms and conditions of this Agreement and has discussed them with his independent legal counsel,
or had a reasonable opportunity to do so; (e) has had answered to his satisfaction any questions he
has asked with regard to the meaning and significance of any of the provisions of this Agreement
and has not relied on any statements or explanations made by any Releasee or their counsel; (f)
understands that he has seven days within which to revoke this Agreement (as described in Section
10) after signing it and (g) is signing this Agreement voluntarily and of his own free will and
agrees to abide by all the terms and conditions contained herein.
10. Effective Time of Agreement. The Executive may accept this Agreement by signing
it and delivering it to the Company within 21 days of his receipt hereof. After executing this
Agreement, the Executive will have seven days (the “Revocation Period”) to revoke this Agreement by
indicating his desire to do so in writing delivered to the Company by no later than 5:00 p.m. EST
on the seventh day following the date on which he executes and delivers this Agreement. The
effective date of this Agreement shall be the eighth day after the Executive executes and delivers
this Agreement (the “Agreement Effective Date”). If the last day of the Revocation Period falls on
a Saturday, Sunday or holiday, the last day of the Revocation Period will be deemed to be the next
business day. If the Executive does not execute this Agreement or exercises his right to revoke
hereunder, he shall forfeit his right to receive any of the Termination Benefits, and to the extent
such Termination Benefits have already been provided, the Executive agrees that he will immediately
reimburse the Company for the amounts of such payment.
| IMPAX LABORATORIES, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxx | |||
| Senior Vice President, Finance | ||||
| /s/ Xxxxxxxxxxx Xxxxxxx | ||||
| Xxxxxxxxxxx Xxxxxxx, X.Xx. | ||||
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