Separation Agreement and General Release of Claims
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EXHIBIT
10.2
May
18, 2009
Xx.
Xxxxx X. Xxxx
Dear
Xxx,
This
letter follows up on our discussion and is an offer of severance benefits
relating to your resignation from Columbia Laboratories, Inc. (the
“Company”).
Separation
and General Release
In
return for your agreement to the attached Separation and General Release
which will only be effective upon execution by you and an officer of the
Company, the Company agrees to provide to you the benefits you would have
been entitled to under your Amended and Restated Employment Agreement with
the Company dated March 11, 2009, had you been terminated by the Company
without cause pursuant to Section 6(f) of that agreement, and the Company
agrees that your stock option grants that are vested on the date hereof,
will remain exercisable until June 11, 2011 (subject to termination based
on the applicable plan provisions other than those related to termination
of employment).
Whether
or not you elect to sign the Separation Agreement and General Release, you
should also be aware of the following:
1. Group Life
Insurance
If
you wish to do so, you may convert the life insurance for which you are
currently enrolled to an individual policy, but you will be required to
pay the full cost of coverage.
2. Long Term Disability
Benefits
Long
Term disability protection ends as of your last day as an active
employee. No conversion to an individual policy is available
for this coverage. 3. 401(k)
Plan
Your
401(k) account may be withdrawn in a lump sum or through other available
options. You may also elect to defer payment until some future
date, but not beyond age 70 1/2. You should be aware that Federal law
requires an automatic 20% Federal Income Tax withholding on any
distributions from a qualified plan if it is not directly rolled
over into an IRA or another qualified plan. You are encouraged to
seek competent tax advice to understand fully the tax consequences
applicable to your distribution options.
4. Stock
Options
If
you elect not to sign the Separation Agreement and General Release, the
options granted to you shall only remain exercisable, if vested, until the
earlier of (i) the date the stock option expires or (ii) the end of the 90
day-period following June 11, 2009, the date of termination of
employment.
You
have up to twenty-one (21) days from the date of receipt of this letter to
review and sign the Separation Agreement and General Release, and to
return the signed and dated Separation Agreement and General Release, to
Xxxxxxxx Xxxxxxx, Columbia Laboratories, Inc., 000 Xxxxxxxxxx Xxxxxxx,
Xxxxxxxxxx, XX 00000.
During
this period you are encouraged to discuss your decision with your attorney
or other adviser of your choice.
If
you have any questions, please feel free to contact Xxxxxxxx Xxxxxxx at
000-000-0000.
Sincerely,
/S/ Xxxxxx X.
Xxxxx
Xxxxxx
X. Xxxxx
President and Chief Executive
Officer
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Separation Agreement
and General Release of
Claims
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In return
for the execution of this Separation Agreement and General Release, I, Xxxxx X.
Xxxx (referred to below as “I”, “me”, “my” or the “Employee”) will receive a
Severance Benefit to which I am not otherwise entitled, that is, the Company
agrees to provide to me the benefits I would have been entitled to under my
Amended and Restated Employment Agreement with the Company dated March 11, 2009,
had I been terminated by the Company without cause pursuant to Section 6(f) of
that agreement and the Company agrees that my stock option grants that are
vested on May 18, 2009, will remain exercisable until June 11,
2011 (subject to termination based on the applicable plan provisions
other than those related to termination of employment).
This
Separation Agreement and Release of Claims will be effective on the later date
of the signatures below.
In
consideration of the receipt of the Severance Benefit described above, I agree
as follows:
1.
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Company
Obligations
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The
Company shall have no other financial obligations to me under any
compensation or benefit plan, program or policy, except that: (1) I shall
have such right to continue group health plan coverage as is provided
under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”)
or a comparable state law; and (2) this Separation Agreement and General
Release is not intended to cover any claim for benefits to which I am
entitled, if any, under the Company’s 401(k)
Plan.
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2.
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Cooperation
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From time
to time the Company finds it necessary or advisable to contact former employees
to discuss matters about which they might have knowledge that are relevant to
ongoing matters of the Company or otherwise related to their employment period.
Accordingly, I agree that I will cooperate in all reasonable respects and
generally make myself available to speak with Company employees and counsel,
give testimony, and provide assistance in connection with any matter
that relates to my employment period, including litigation, arbitration
proceedings, government hearings or investigations involving the Company, or any
other matter, provided that with regard to matters not involving litigation or
potential litigation, this provision shall not apply after one (1) year
from the date hereof. The Company will, to the extent feasible, use reasonable
business efforts to limit itself to telephonic and email inquiries and otherwise
provide me with reasonable notice in the event my assistance is required. In
connection with any cooperation where the Company requires me to be available in
person, the Company will reimburse me for my reasonable travel, meal and lodging
expenses. My entitlement to reimbursement of expenses shall in no way affect
other rights I may have to be indemnified and/or advanced expenses, provided
that in no event shall there be any duplication of indemnification and/or
expense reimbursement. I will not be entitled to any other compensation for
cooperation, except as otherwise provided under my Indemnification Agreement
with the Company dated December 6, 2006.
3.
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Release
of Claims
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A.
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In
exchange for the consideration described above, I agree to release and
forever discharge the Company, its subsidiaries and affiliates and their
parent organizations, predecessors, successors, officers, directors,
employees, agents, attorneys, associates, and employee benefit plans from
all claims, demands or causes of action arising out of facts or
occurrences prior to the date of this Agreement, whether known or unknown
to me, between the Company and me.
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B.
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I
agree that this release of claims is intended to be broadly construed so
as to resolve any pending and potential disputes between the Company and
me that I have up to the date of this Release, whether or not such
disputes are known or unknown to me, including, but not limited to, claims
based on express or implied contract; any action arising in tort,
including, but not limited to, libel, slander, defamation, intentional
infliction of emotional distress, or negligence; any and all claims for
wrongful discharge; and any and all claims based on the Age Discrimination
in Employment Act (42 U.S.C. § 621), Title VII of the Civil Rights act of
1964 as amended (42 U.S.C. § 2000e), the Equal Pay Act of 1963 (29 U.S.C.
§ 206(d)), the Civil Rights Acts of 1866 and 1871 (42 U.S.C. § 1981), the
Worker Adjustment and Retraining Notification Act (29 U.S.C. § 1651), the
Employee Retirement Income Security Act (29 U.S.C. § 1001), the Family and
Medical Leave Act (29 U.S.C. §2601), the Americans with Disabilities Act
(42 U.S.C. § 12,101), the Occupational Safety and Health Act (29 U.S.C. §
651), or any other federal, state or local statute prohibiting
discrimination on the basis of age, race, creed, color, religion, national
origin, sex, disability, marital status or any other protected
classification which I have, or at any time had, including but not limited
to all claims for attorneys fees.
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C.
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If
I breach or challenge the enforceability of this Agreement, I acknowledge
that I will reimburse the Company for any monetary consideration
previously received by me under this Agreement and agree to pay reasonable
attorneys’ fees and costs incurred by the Company in collection and
enforcement of this Agreement; provided that this paragraph shall have no
application to me with respect to a claim asserting that my separation was
due to unlawful age discrimination in violation of the Age Discrimination
in Employment Act.
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4.
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Non-Admission
of Liability
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This
General Release shall not in any way be construed as an admission by the
Company that it has acted wrongfully with respect to me or any other
person, or that I have any rights whatsoever against the Company, and the
Company specifically denies any liability to or wrongful acts against me
or any other person, on the part of itself, its employees and its
agents.
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5.
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Additional
Understandings
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X. X
acknowledge and agree as follows:
(1)
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The
benefits provided to me under this Agreement exceed the nature and scope
of that to which I would otherwise have been entitled to receive from the
Company and constitute adequate consideration for my promises
herein;
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(2)
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I
agree that on or before my last work day with the Company, I will return
to the Company all notes, reports, plans, keys, security cards and/or
identification cards, charge cards, customer and investor lists, computer
or other files, passwords, product information and other documents and
property which were created, developed, generated or received by me during
my employment or which are the property of the Company, whether or not
such items are confidential to the
Company.
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(3)
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I
acknowledge that, before signing this Release, I was given a period of at
least twenty-one (21) calendar days to consider this Release and I waive
any right I might have to additional time beyond this twenty-one (21) day
consideration period within which to consider this
Release;
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(4)
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I
have read and understand this Agreement in its entirety, including the
waiver of rights under the Age Discrimination in Employment
Act;
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(5)
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I
have been advised by the Company to consult with an attorney before
signing this Agreement and this paragraph constitutes such advice in
writing;
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(6)
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For
a period of seven (7) days following my execution of this Agreement, I may
revoke this Agreement by notifying Xxxxxxxx Xxxxxxx, Columbia
Laboratories, Inc., 000 Xxxxxxxxxx Xxxxxxx, Xxxxxxxxxx, XX, and it shall
not become effective or enforceable until the 7-day revocation period has
expired;
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(7)
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I
enter into this Agreement knowingly and voluntarily, without duress or
reservation of any kind, and after having given the matter full and
careful consideration.
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B.
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Nothing
in this Agreement shall be construed to prohibit me from filing any charge
or complaint with the Equal Employment Opportunity Commission (EEOC) or
participating in any investigation or proceeding conducted by the EEOC,
nor shall any provision of this Agreement adversely affect my right to
engage in such conduct. Notwithstanding the foregoing, I intend
that the Company shall have the right, to the full extent permitted by
law, to enforce this Agreement and to pursue any and all legal or
equitable remedies against me in the event I violate this
Agreement.
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6.
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No
Representations
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I
represent and acknowledge that in executing this document, I do not rely
and have not relied upon any representation or agreement not set forth in
this Separation Agreement and General Release with regard to its subject
matter, basis or effect.
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7.
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Severability
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The
provisions of this Separation Agreement and General Release are severable, and
if any part is found to be unenforceable, the other paragraphs shall remain
fully valid and enforceable.
8.
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Governing
Law
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This
Separation Agreement and General Release will be construed under the law of the
State of New Jersey and, where applicable, under federal law.
PLEASE
READ CAREFULLY. THIS SEPARATION AGREEMENT AND GENERAL RELEASE
INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
/S/
Xxxxx X. Xxxx
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May
18, 2009
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Signature:
Xxxxx X. Xxxx
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(Date)
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Columbia
Laboratories, Inc.
/S/
Xxxxxx X. Xxxxx
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May
18, 2009
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Signature:
Xxxxxx X. Xxxxx
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(Date)
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