CONFIDENTIAL SETTLEMENT AGREEMENT
WHEREAS,
the
Parties to this Confidential Settlement Agreement (this “Agreement”) are Xxxx
Xxxxxx (“Xxxxxx”), BioSante Pharmaceuticals, Inc. (“BioSante”), BioSante’s Vice
Chairman, President and Chief Executive Officer Xxxxxxx X. Xxxxx (“Xxxxx”),
BioSante’s Chief
Financial Officer, Treasurer and Secretary Xxxxxxx Xxxxxxxxx (“Donenberg”), and
Xxxxxx
Xxxxxxxxxxx, a BioSante director (“Xxxxxxxxxxx” and, together with Xxxxxx,
BioSante, Xxxxx and Donenberg, sometimes referred to herein collectively as
the
“Parties”);
WHEREAS,
Xxxxxx
was employed by BioSante in accordance with the provisions of an Employment
Agreement dated December 15, 2000 (the “Employment Agreement,” a true copy of
which is appended as Appendix 1);
WHEREAS,
certain
disputes have arisen concerning that employment, events allegedly occurring
during the time of that employment, whether within the scope of her employment
or otherwise, and its termination;
WHEREAS
Xxxxxx
has filed an administrative complaint in the United States Department of Labor,
Occupational Safety and Health Administration, Des Plaines, Illinois, against
BioSante, Simes, Donenberg, and Xxxxxxxxxxx designated Case No. 5-2330-06-012
(the “OSHA Complaint”) and a charge with the U.S. Equal Employment Opportunity
Commission (the “EEOC Charge”) (collectively referred to sometimes herein as the
“Complaints”) and BioSante has filed a suit against Xxxxxx in the Circuit Court
of Xxxx County, Illinois, as suit number 2006 L 1818 (the “BioSante Suit” and,
together with the OSHA Complaint and the EEOC Charge, the “Pending
Litigation”);
WHEREAS
no other
suits or claims other than the Pending Litigation have been filed by any of
the
Parties before any court, tribunal, administrative body or otherwise related
to
events allegedly occurring during the period of Xxxxxx’x employment and
termination of that employment;
WHEREAS
Xxxxxx
has reviewed this Agreement with her counsel, Xxxxx X. Xxxxxx, and has had
the
opportunity to fully consult with him and any counsel of her choosing about
it,
and therefore fully understands its effect and consequences;
WHEREAS
Xxxxxx
and all Parties hereto each desire to fully and finally resolve all disputes
between them; and
WHEREAS
the
terms of the Parties’ settlement may be summarized as follows:
The
consideration for Xxxxxx’x agreements is $890,000.00 payable as more fully
provided below, a portion of which is to be secured by an irrevocable letter
of
credit, as more fully provided below, and in addition the return of certain
items of personal property belonging to Xxxxxx and payment of certain
reimbursable business expenses which have previously been identified by letter
from Xxxxxx’x counsel to Ungaretti & Xxxxxx LLP along with appropriate
supporting documentation for such expenses, in the claimed amount of $4,860.21.
Xxxxxx agrees as more fully provided herein to obligations of non-competition
and non-solicitation, and all Parties as further consideration for this
agreement agree to dismiss and enter into stipulations of dismissal of the
Pending Litigation as detailed below.
IT
IS THEREFORE AGREED:
1. The
Parties will voluntarily withdraw and dismiss the Pending Litigation with
prejudice and hereby warrant and agree that they have not filed or asserted,
and
the Parties will not at any time in the future file or assert, any other
complaints, suits, charges or claims with any other agency of government, court
or tribunal, whether Federal, State or local, against the others or any of
their
predecessors, successors, subsidiaries, affiliates, contractors, consultants,
related business entities or assigns, directors, officers, agents,
representatives, spouses, children and/or employees of any of them relating
to
Xxxxxx’x employment by BioSante or any events, incidents, claims, causes of
action or damages arising during the time of Xxxxxx’x employment, whether within
the scope of her employment or otherwise, or in connection with the termination
of that employment, whether anonymously styled, pseudonymously styled, or
otherwise.
2. As
consideration for Xxxxxx’x withdrawal and dismissal of the OSHA Complaint and
the EEOC Charge and of her execution of this Agreement, BioSante will cause
to
be delivered to Xxxxxx or to her counsel, Xxxxx X. Xxxxxx, a payment in the
amount of $110,000.00, from which no sums for withholding tax or any other
tax
will be withheld and with respect to which a Federal Form 1099 will issue,
representing Xxxxxx’x attorney fees in this matter (the “Initial Payment”); and
$780,000.00, to be payable in
equal
installments in accordance with BioSante’s regular payroll cycle for full-time
employees, less applicable payroll taxes and other withholdings required by
law
in
accordance with Xxxxxx’x most current form W-4 on file with BioSante,
from
the next payroll date subsequent to the Effective Date of this Agreement (more
fully defined hereinafter) through December 31, 2007, and
for
which federal forms W-2 will be issued at the close of each respective tax
year
(the “Installment Payments”). If, in the aggregate, the gross amount paid to
Xxxxxx equals $780,000 prior to December 31, 2007, no further Installment
Payments shall be made hereunder after such time as the gross aggregate amount
of Installment Payments paid to Xxxxxx equals $780,000. If, in the aggregate,
the gross amount paid to Xxxxxx as of and including December 31, 2007 is less
than $780,000, in the next regularly scheduled payroll cycle after December
31,
2007, BioSante shall pay to Xxxxxx x xxxxx amount equal to the difference
between $780,000 and the aggregate gross amount of the Installment Payments
paid
up to and including December 31, 2007. To secure the Installment Payments,
BioSante shall obtain and provide to Xxxxxx an irrevocable letter of credit
from
UBS in the amount of $780,000 providing that Xxxxxx may draw upon same only
in
the event that any
bankruptcy or other case or proceeding under any bankruptcy or insolvency law
is
commenced in respect of BioSante, and if such case or proceeding is not
commenced by BioSante, it is not dismissed within 90 days of the date of its
commencement.
Upon the
payment to Xxxxxx of the final Installment Payment contemplated hereby, Xxxxxx
shall return the letter of credit to Ungaretti & Xxxxxx LLP, counsel for
BioSante. In addition, upon submission to it of a complete and accurate expense
report in the form customarily used by it for like expenses, BioSante shall
pay
directly to Xxxxxx the outstanding expenses claimed by her in the amount of
$4,860.21 and return to her the items of personal property previously identified
to BioSante’s counsel. As further consideration for this Agreement, Xxxxxx
acknowledges
and agrees that Sections 4.3 and 4.4 of her Employment Agreement (respecting
Non-Competition and Non-Solicitation of Employees) are expressly incorporated
into this Agreement but that the restrictions thereof shall expire on June
30,
2007. Xxxxxx
acknowledges and agrees that the foregoing covenants not to compete and not
to
solicit are reasonable in scope, duration and nature, and appropriate and
necessary to protect and safeguard BioSante’s legitimate business interests.
Xxxxxx
acknowledges and agrees that during the term of her employment with BioSante,
and through June 30, 2007, all inventions (as defined in Section 5.2 of the
Employment Agreement) that she had or has, made or makes, conceived or
conceives, reduced or reduces to practice or authored or authors (either alone
or with others) are BioSante’s sole and exclusive property. This shall include
but not be limited to inventions relating to transdermal gel formulations that
incorporate or relate to hormone treatment compounds such as estradiol or
testosterone. Therefore, in keeping with her obligations and duty to cooperate,
Xxxxxx
agrees to perform all acts necessary in BioSante’s sole opinion, and at all
times as in BioSante’s sole opinion may be required, to effect the assignment to
BioSante and recordation and issuance in BioSante’s name (or BioSante’s licensor
or licensee as BioSante may direct) of, any and all patents and patent
applications that list Xxxxxx as an inventor, including, but not limited to,
the
execution and delivery to BioSante and/or its patent counsel of any and all
assignments, certificates, specifications, attestations, applications and the
like, and any other act that in BioSante’s sole opinion may be necessary to
preserve its property rights in inventions (as defined in Section 5.2 of the
Employment Agreement). The
Parties hereto stipulate and agree that each of the terms of this Agreement
including, but not limited to, the scope of the activities prohibited and the
time limitation is reasonable. The Parties further stipulate and agree that
in
the event a court determines contrary to the agreement of the parties herein
that any of the terms of this Agreement are unreasonable or contrary to public
policy, or invalid or unenforceable for any reason in fact, law, or equity,
then
the court shall limit the application of any such provision or term or modify
any provision or term to that which it finds reasonable, valid, or enforceable
and shall enforce this Agreement as so limited or modified.
3. The
sums
to be paid as recited above are the entire monetary consideration for this
Agreement. The Parties hereto understand and agree that the Initial Payment
in
the amount of $110,000 described above is allocable to and paid in consideration
for Xxxxxx’x liability for her attorney’s fees; and the Installment Payments in
the aggregate gross amount of $780,000.00 are allocable to and paid in
consideration for the release herein of all of Xxxxxx’x claims for the loss,
interruption or impairment of wages and benefits. It is further expressly agreed
by and between all Parties hereto that none of the monetary consideration being
paid to Xxxxxx hereunder is allocable to, or paid in consideration for the
release or compromise of any claim, demand, action or cause of action by Xxxxxx
asserting an entitlement to punitive or exemplary damages.
4. All
Parties hereto understand and agree that Xxxxxx bears the sole responsibility
and obligation for determining and for paying any and all income and other
taxes
due on any and all sums to be received by Xxxxxx hereunder. Accordingly, Xxxxxx
agrees that she shall indemnify and hold the other parties hereto harmless
from
any claims made or asserted against it by any taxing body, government or agency
of government for or on account of any unpaid tax, assessment, penalty or fine
or part thereof due and payable from, or alleged to have been due and payable
from Xxxxxx. BioSante shall pay the employer’s share of any applicable taxes,
including, without limitation, social security and Medicare taxes as may be
required by law to be paid by BioSante on the Installment Payments.
5. The
sums
paid as recited herein and the other undertakings and consideration by any
party
hereto stated herein are not acknowledgments, concessions or admissions by
any
of them of liability to any other party hereto for any of the allegations in
the
Pending Litigation or arising otherwise during the period of her employment,
whether within the scope of her employment or otherwise, or at its termination,
all of which the various parties hereto have expressly and categorically denied
and continue to expressly and categorically deny. The said monetary
consideration provided for in this Agreement is given to comprehensively settle
any and all doubtful and disputed claims arising during the term of her
employment, whether within the scope of her employment or otherwise, and at
its
termination, and the parties hereto do hereby renew and repeat their complete
and categorical denial of any wrongful, tortious, unlawful or discriminatory
act
with respect to each and every other party hereto, whether heretofore alleged
by
her or as yet unasserted. The said monetary consideration provided to Xxxxxx
does not render Xxxxxx a prevailing party in this matter for any purpose,
including for purposes of entitlement of any attorney to legal fees.
6. In
further consideration for the undertakings herein by BioSante, Xxxxx, Donenberg
and Morgenstern, Lehman, for herself, heirs, representatives, legatees, devisees
and assigns, does hereby release and covenant not to xxx BioSante and all
affiliated businesses and entities related thereto, Simes, Donenberg,
Xxxxxxxxxxx, present or former board members, directors, officers, investors,
employees, agents, contractors and consultants, including but not limited to
Lakeshore Staffing, Lakeshore HR Solutions and all affiliated businesses and
entities related thereto, Xxxxx XxXxxxxx, Xxxxxxxxxxx Partners and all
affiliated businesses and entities related thereto, Xxxx
Xxxxxxxxxxx,
ComPsych
Corporation and
all
affiliated businesses and entities related thereto, Xxxxxxx Xxxxxxxxx, M.D.,
and
all employees, agents, and representatives of any of them, including actual,
implied, ostensible or apparent agents, their predecessors, successors,
subsidiaries, affiliates, or assigns and all affiliated, subsidiary, parent
or
related companies, divisions and business entities (collectively all persons
or
entities described above are deemed the “Released Parties”), from any and all
claims of any type or kind whatsoever, including but expressly not limited
to
those arising out of Xxxxxx’x employment by BioSante, those alleged in her
Complaints, and/or from any and all events, circumstances or incidents occurring
or allegedly occurring during the time of her BioSante employment, whether
within the scope of her employment or otherwise, or in connection with the
termination thereof or the non-renewal of Xxxxxx’x employment or that Employment
Agreement dated December 15, 2000 by and between Xxxxxx and BioSante (the
“Employment Agreement”), as claimed in the Complaints or otherwise, through the
date of this Agreement, specifically including but not limited to any and all
claims of wrongful termination, retaliatory discharge, assault, battery,
negligent or intentional infliction of emotional distress, defamation,
discrimination or harassment on any basis, including but not limited to
“whistle-blowing,” disability, race, color, sex, gender, religion, national
origin, and/or age discrimination, under the Xxxxxxxx-Xxxxx
Act of 2002, Americans with Xxxxxxxxxxxx Xxx,
00
X.X.X. §0000 et
seq.,
Title
VII of the Civil
Rights Act
of 1964,
as amended, 42 U.S.C. 2000(e), et
seq.,
The
Age Discrimination in Employment Act,
29
U.S.C. §600 et.
seq.,
The
Older Workers Xxxxxxxxxx Xxx,
00
X.X.X. §000 et
seq.,
the
Fair
Labor Standards Act, the Portal to Portal Act, the
Illinois
Human Rights Act, or
the
common law or other laws, statutes, ordinances or regulations of the United
States, the State of Illinois or any state, county, city, town village or
municipality. Xxxxxx represents that she understands that by signing this
Agreement, she is releasing BioSante, Simes, Donenberg, and Xxxxxxxxxxx and
all
Released Parties, from any and all claims she may have against each and any
of
them, and any combination of two or more of them to the date hereof. With
respect to her waiver of potential age and disability discrimination claims,
Xxxxxx shall have, but need not take, twenty-one (21) days within which to
consider this Agreement, and acknowledges that she is advised to consult with
an
attorney prior to executing this Agreement and has so consulted with her counsel
Xxxxx X. Xxxxxx and any other counsel of her choosing, and shall have seven
(7)
days following the execution of this Agreement within which to revoke, in
writing, her assent to its terms as the same regard the release of any claims
of
age discrimination under any law, statute, ordinance or regulation.
7. In
further consideration for the undertakings herein by Xxxxxx, BioSante, Simes,
Donenberg, and Xxxxxxxxxxx, for themselves, their successors, heirs,
representatives, legatees, devisees and assigns, do hereby release and covenant
not to xxx Xxxxxx from any and all claims, actions, suits or damages of any
type
or kind whatsoever, including but not limited to those arising out of Xxxxxx’x
employment by BioSante, the allegations in the Pending Litigation, and/or any
and all events, circumstances or incidents occurring or allegedly occurring
during the time of her BioSante employment, whether within the scope of her
employment or otherwise, or in connection with the termination thereof or the
non-renewal of her Employment Agreement, through the date of this Agreement,
specifically including but not limited to any and all claims of breach of
fiduciary duty, interference with prospective economic advantage, breach of
contract, abuse of process, extortion, assault, battery, negligent or
intentional infliction of emotional distress, defamation, slander, libel,
wrongful or malicious prosecution, discrimination or harassment, or any claims
or causes of action otherwise arising under the common law or other laws,
statutes, ordinances or regulations of the United States, the State of Illinois
or any state, county, city, town village or municipality. BioSante, Xxxxx,
Donenberg and Xxxxxxxxxxx represent that they understand that by signing this
Agreement, they are releasing Xxxxxx from any and all claims they may have
against her to the date hereof.
8. In
further consideration for the undertakings by BioSante, Xxxxx, Xxxxxxxxx and
Xxxxxxxxxxx herein, Xxxxxx agrees on behalf of herself and her spouse and family
members and her heirs, representatives, legatees, devisees and assigns to keep
confidential, and to not disclose to any third parties whatsoever, other than
her spouse and children to the extent only that such persons may have heretofore
acquired knowledge of the disputes between the parties hereto and their pending
resolution by virtue of residing in her household, her counsel Xxxxx X. Xxxxxx,
Xxxxxx Xxxxxxxxx, Xxxxxxx Xxxxxx and Xxxxx-Xx Xxxxxxxxxxxxx and Diver, Grach,
Quade & Masini, and her tax preparers (hereinafter “Third Parties”), either
by direct communications or by participation in or cooperation with any printed
or electronic media of any type or kind whatsoever, the allegations of the
Pending Litigation, the fact that such Pending Litigation was brought or the
fact or particular terms of her settlement or of this Agreement. The disclosures
already made to OSHA and EEOC and to Judges of the Circuit Court of Xxxx County,
Illinois, occasioned by the filing of the Pending Litigation and discussions
with OSHA and EEOC personnel necessary to implement the settlement and related
procedures described herein are excluded from the scope of this paragraph.
The
Parties hereto agree that they intend for this confidentiality agreement by
Xxxxxx to extend and apply as broadly as is permissible by law and that
therefore prohibited Third Parties shall include Federal, state, local and
municipal administrative agencies, law enforcement officials, police,
governmental investigators, prosecuting authorities, courts and grand juries,
including but not limited to agents, representatives and officers of the United
States and Illinois Departments of Labor, the Occupational Safety and Health
Administration, the United States Securities and Exchange Commission and the
United States Food and Drug Administration, excepting only where communications
otherwise prohibited hereby are required and compelled by a lawful subpoena
or
other lawful order issued by an agency or court with legal authority and under
color of law. In the case of any such subpoena or other lawful order of an
agency or court to Xxxxxx, Xxxxxx hereby agrees that she shall, as soon as
practicable upon learning of it, provide to BioSante through its counsel, Xxxx
X. Xxxxxxxxxx, Ungaretti & Xxxxxx LLP, 3500 Three First National Plaza, 00
Xxxx Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx, 00000-0000 (telephone 000-000-0000,
telefax 312-977-4405, e-mail: xxxxxxxxxxx@xxxxx.xxx)
both
telephonic and written notice and a complete copy of any such subpoena and
written notice of its issuance to her. Xxxxxx agrees that any breach or
violation of the foregoing confidentiality terms and conditions shall be deemed
a material breach of this Agreement for purposes of Paragraph 9
below.
9. It
is
agreed by the Parties hereto that this Agreement is, and shall operate as,
a
complete bar to any suit, sanction, charge or other cause, whether
administrative or judicial, other than one to enforce its terms, and may be
pled
as such. In the event of a breach of this Agreement by any party hereto,
including but not limited to a breach of the confidentiality requirements stated
in Paragraph 8, above, such breaching party shall be liable to any party damaged
by such breach in the amount of such damaged party’s direct monetary damages
caused by such breach, plus attorney’s fees and costs. In the event of a breach
by BioSante, Xxxxx, Xxxxxxxxx or Xxxxxxxxxxx, Xxxxxx may reinstate her
Complaints and may also pursue any of the remedies available at law or in equity
or in any other forum wherein venue and jurisdiction are otherwise appropriate,
and the parties stipulate that the statutes of limitation shall not begin to
run, and are tolled until, any such event of breach. In
the
event of a breach by Xxxxxx, BioSante may reinstate the BioSante Suit and
BioSante, Xxxxx, Xxxxxxxxx and Xxxxxxxxxxx may also pursue any of the remedies
available at law or in equity or in any other forum wherein venue and
jurisdiction are otherwise appropriate, and the parties stipulate that the
statutes of limitation shall not begin to run, and are tolled until, any such
event of breach. In the event that Xxxxxx reinstates her Complaints, or either
of them, or breaches the terms of this Agreement, BioSante’s obligation to pay
the Installment Payments shall immediately cease, and be of no further force
and
effect and Xxxxxx shall be liable to make immediate restitution to BioSante
of
any and all payments made to her by it prior to such breach or breaches. The
Parties’ execution of this Agreement is expressly conditioned on such rights to
reinstate the Pending Litigation and to pursue other claims and remedies in
the
event of such breach whether anonymously styled, pseudonymously styled, or
otherwise.
10. The
effective date of this Agreement shall be the latest to occur of (i) the date
of
receipt by BioSante’s counsel of OSHA’s notice evidencing OSHA’s acceptance of
it and stating that in deferral to the Parties’ settlement, OSHA’s investigation
of the OSHA complaint and OSHA’s action in regard to that Complaint is
concluded, (ii) the date of receipt by BioSante’s counsel of the EEOC’s written
notice informing counsel that the EEOC charge 440 2006 02236 has been withdrawn
at the request of the charging party and the withdrawal terminates processing
of
this matter, but does not affect the investigation of any other charge; and
(iii) expiration of the period of revocation provided in Paragraph 6 above.
BioSante’s obligation to tender the monetary consideration referenced in this
Agreement is effective upon the last to occur of (i) the date of receipt by
either BioSante or its counsel of OSHA’s notice evidencing OSHA’s acceptance of
the Agreement and stating that in deferral to the Parties’ settlement, OSHA’s
investigation of that Complaint is closed and OSHA’s action in regard to that
Complaint is concluded, (ii) the date of receipt by either of them of the EEOC’s
written notice informing counsel that the EEOC charge 440 2006 02236 has been
withdrawn at the request of the charging party and the withdrawal terminates
processing of this matter, but does not affect the investigation of any other
charge; and (iii) expiration of the period of revocation provided in Paragraph
6
above.
11. BioSante
shall issue the $110,000.00 payment provided for in Paragraph 2, above, and
deliver the other items to the attorneys for the respective Parties, upon the
written advice from both Xxxxx X. Xxxxxx and from Ungaretti & Xxxxxx LLP,
that the Parties have received OSHA’s notice evidencing OSHA’s acceptance of it
and stating that in deferral to the Parties’ settlement, OSHA’s investigation of
the Complaint is closed and OSHA’s action in regard to the OSHA Complaint is
concluded and the EEOC’s written notice informing counsel that the EEOC charge
440 2006 02236 has been withdrawn at the request of the charging party and
the
withdrawal terminates processing of this matter, but does not affect the
investigation of any other charge, and copies of orders dismissing with
prejudice and without costs the BioSante Litigation.
12. Xxxxxx
agrees
that she will not apply for employment or otherwise seek to be hired, rehired,
re-employed or reinstated by BioSante
or by
any business entity that is directly or indirectly controlled by BioSante,
and she
further hereby expressly and irrevocably waives the right to apply for, seek,
or
be considered for employment by any business entity of any type or kind
whatsoever that is affiliated with BioSante.
13. The
Parties warrant that, other than the filing of the Pending Litigation, they
have
not, and agree that in the future they will not encourage, aid or assist any
person to file or to prosecute any lawsuit, claim, charge or complaint against
any other Parties hereto or any Released Parties with respect to the Pending
Litigation, Xxxxxx’x employment with BioSante, or the non-renewal of Xxxxxx’x
Employment Agreement. The Parties further warrant that, other than the filing
of
the Pending Litigation, they have not, and agree that in the future they will
not, assist any person who has filed or who may file, a lawsuit, claim, charge
or complaint against any other Party hereto, excepting only that each may,
under
compulsion of law and legal process, respond to a lawful subpoena or order
in
accordance with the provision stated in Paragraph 8 of this Agreement.
14. Xxxxxx
agrees that she will not disparage, denigrate or defame BioSante or any other
party hereto or any Released Parties and/or related persons or any of its/their
business products or services. Xxxxx, Donenberg and
Xxxxxxxxxxx agree
that they shall not disparage, denigrate or defame Xxxxxx. BioSante agrees
that
with respect to all parties inquiring regarding Xxxxxx it will confirm only
the
fact and dates of tenure of her employment and her employment title while
employed by BioSante. In
the
event that BioSante determines, in its sole discretion, to issue a press release
announcing the settlement of any or all the Pending Litigation, it shall provide
Xxxxxx with prior notice of the press release, however nothing herein shall
be
construed or deemed to provide Xxxxxx with any right to approve such release.
Further, nothing herein shall be construed or deemed to provide Xxxxxx with
any
right to approve any 8-K or other filing regarding this Agreement or the
settlement of any or all of the Pending Litigation that BioSante may be required
by law to file, or upon advice of counsel determines that it must file, or
in
its business judgment determines to file. It is expressly agreed and understood
by the Parties that none of the provisions of this Agreement shall in any
fashion pertain to, restrict or inhibit BioSante in the making of such public
disclosures or filings as may be required by law, or such disclosures to its
auditors, accountants, lenders, investors, current or prospective insurers
and/or insurance brokers as it may determine, in its sole discretion, are
necessary, appropriate or desirable.
15. Xxxxxx
agrees that as of the tender of this Agreement to OSHA and EEOC for approval
she
will tender to BioSante, all BioSante property or documents, records, recordings
or other materials reflecting interpersonal communications between and among
Xxxxxx and any of the Parties that is in her possession, custody or control,
or
to which she has or can obtain access, including, without limitation, all keys,
computer hardware and software, materials, manuals, reports, documents,
protocols, INDs, preclinical and clinical results, study reports, papers, books,
files, records, policies, customer information and lists, vendor lists, sales
and marketing information, data base information and lists, mailing lists,
notes, computer software and programs, methods of designing such programs,
data,
plans, drawings, proposals, designs, product information, confidential
purchasing and market research information, e-mail messages or communications,
and any other property or information that she may have or secure access
relating to BioSante, Xxxxx, Xxxxxxxxx or Xxxxxxxxxxx, their respective
families, customers, employees, agents, contractors and consultants, policies,
or practices (whether those materials are in paper or computer -stored form),
including but not limited to all such materials and items referenced in any
of
the Pending Litigation and including all personal data or information derived
from any BioSante electronic information system, including but not limited
to
BioSante computers, external hard-drives, telephones or voicemail systems,
Xxxxxx’x personal computers, telephones, cell phones or voicemail systems and
all Confidential Information (as defined in Section 4.2 of the Employment
Agreement). Xxxxxx warrants and agrees that following the tender of such
materials, data and information she will not maintain, preserve or hold
duplicates or copies thereof whether in paper or computer-stored form, either
personally or through any other person or entity. Xxxxxx further warrants and
agrees that she has a continuing obligation to tender to BioSante any and all
of
the foregoing which she does not initially tender pursuant to this Agreement
discovered in her possession as a result of accident, mistake or inadvertence,
or which comes into her possession or under her control after this Agreement
is
executed.
16. Xxxxxx
acknowledges and agrees that during the term of her employment with BioSante
she
was obligated to retain the confidentiality of certain information disclosed
to
her (Confidential Information as defined in Section 4.2 of the Employment
Agreement) and the security of BioSante’s property entrusted to her. Therefore,
except as has been necessary to prepare and file the Complaints herein and
defend the BioSante Suit, and any disclosures occasioned thereby, at all times
during and subsequent to the conclusion of Xxxxxx’x employment with BioSante,
Xxxxxx will regard and preserve all such Confidential Information (as defined
in
Section 4.2 of the Employment Agreement) and will not disclose such Confidential
Information to others and will refrain from harming any BioSante property.
In
the course of preparing the Complaints and defending the BioSante Suit, and
in
considering and evaluating other claims or counterclaims against some or all
of
the BioSante Parties, Xxxxxx and her attorneys have interviewed certain
witnesses; such previous interviews are excluded from the scope of the
confidentiality terms of this Agreement, as are any knowledge of the disputes
between the Parties gained by Xxxxxx’x spouse or children residing in her
household. Any and all notes, memoranda, transcripts, abstracts or summaries
of
interviews of or statements by witnesses, together with all copies thereof,
shall be tendered by Xxxxxx to BioSante.
17. Xxxxxx
agrees that she or anyone on her behalf, whether or not authorized by her,
will
not enter the premises of BioSante without BioSante’s prior written consent,
which consent may only be given in writing on behalf of BioSante by its counsel
Xxxx X. Xxxxxxxxxx, Ungaretti
& Xxxxxx LLP, 3500 Three First National Plaza, 00 Xxxx Xxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx, 00000-0000 (telephone 000-000-0000, telefax 312-977-4405,
e-mail: xxxxxxxxxxx@xxxxx.xxx).
Xxxxxx
further agrees that neither she, nor anyone acting on her behalf, whether or
not
authorized by her, shall intentionally come within 500 yards of Simes,
Donenberg, or Xxxxxxxxxxx, their respective spouses, children or other family
members, or any of their personal residences. The restrictions imposed by this
paragraph 17 may not be waived or rescinded except in a writing signed by each
and all of the Parties hereto. Xxxxxx further agrees that neither she, nor
anyone acting on her behalf, whether or not authorized by her, shall
intentionally initiate, participate in initiating or participate in any direct
contact or communications with BioSante, Simes, Donenberg, or Xxxxxxxxxxx,
or
their respective spouses, children or other family members, by any means, manner
or method of communications including, but not limited to, e-mail, telephone,
cellular telephone, correspondence or memoranda, whether anonymously styled,
pseudonymously styled, or otherwise.
Xxxxx,
Xxxxxxxxx and Xxxxxxxxxxx each agrees for himself that neither he, nor anyone
acting on his behalf, whether or not authorized by him, shall intentionally
come
within 500 yards of Xxxxxx, her spouse, children or other family members, or
her
personal residence. The restrictions imposed by this paragraph 17 may not be
waived or rescinded except in a writing signed by each and all of the Parties
hereto. Xxxxx, Xxxxxxxxx and Xxxxxxxxxxx each further agrees for himself that
neither he, nor anyone acting on his behalf, whether or not authorized by him,
shall intentionally initiate, participate in initiating or participate in any
direct contact or communications with Xxxxxx, or her spouse, children or other
family members, by any means, manner or method of communications including,
but
not limited to, e-mail, telephone, cellular telephone, correspondence or
memoranda, whether anonymously styled, pseudonymously styled, or
otherwise.
18. This
Agreement contains the entire agreement and understanding between the
Parties hereto
concerning the matters described herein and supersedes all prior agreements,
discussions, negotiations, understandings and proposals of the Parties. The
terms of this Agreement cannot be changed except in a subsequent document signed
by Xxxxxx,
the
Chairman of the Board of BioSante,
and
the
other
Parties hereto.
This
Agreement binds and is for the benefit of all Parties as well as their
respective heirs, personal representatives, successors and assigns.
19. This
Agreement may be signed in counterparts and, if so executed, each counterpart
shall have the same binding force and effect as if all Parties had executed
a
single, original version of it.
20. This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Illinois.
[signature
page attached]
WITNESSED:
/s/
Xxxx
Xxxxxx
/s/ Xxxxx
Xxxxxx
signed
and dated this 16th day
signed
and dated this 16th day
of
May
2006
of
May
2006
Xxxx
Xxxxxx Xxxxx
X.
Xxxxxx
For
Law Offices of Xxxxx X. Xxxxxx
Tax
ID No.: _______________________
/s/Dr.
Xxxxx
Xxxxxxxx
/s/ Xxxx X
Xxxxxxxxxx
signed
and dated this 24th
day
signed
and dated this 24th day
of
May
2006,
of
May 2006,
BioSante
Pharmaceuticals, Inc., by Xxxx
X.
Xxxxxxxxxx
Dr.
Xxxxx
Xxxxxxxx, its Chairman for
Ungaretti & Xxxxxx LLP
/s/
Xxxxxxx X.
Xxxxx
/s/
Xxxx X
Xxxxxxxxxx
signed
and dated this 25th day
signed
and dated this 25th day
of
May
2006,
of
May 2006,
Xxxxxxx
X.
Xxxxx
Xxxx
X.
Xxxxxxxxxx
for
Ungaretti & Xxxxxx LLP
/s/Xxxxxxx
X.
Xxxxxxxxx
/s/Xxxx
Xxxxxxxxxx
signed
and
dated this 25th
day
signed
and dated this 25th day
of
May
2006,
of
May
2006,
Xxxxxxx
Xxxxxxxxx
Xxxx
X.
Xxxxxxxxxx
for
Ungaretti & Xxxxxx LLP
/s/Xxxxxx Xxxxxxxxxxx
/s/
Xxxx X
Xxxxxxxxxx
signed
and dated this 24th
day
signed
and dated this 24th day
of
May
2006,
of
May
2006,
Xxxxxx
Xxxxxxxxxxx
Xxxx X Xxxxxxxxxx
for
Ungaretti & Xxxxxx LLP
FIRST
AMENDMENT
TO
This
First Amendment to Confidential Settlement Agreement (this
“Amendment”) is made and entered into as of July14, 2006, by and among
Xxxx
Xxxxxx
(“Xxxxxx”), BioSante
Pharmaceuticals, Inc.,
a
Delaware corporation (“BioSante”), Xxxxxxx
X. Xxxxx
(“Xxxxx”), Xxxxxxx
Xxxxxxxxx
(“Xxxxxxxxx”), and Xxxxxx
Xxxxxxxxxxx
(“Xxxxxxxxxxx” and together with Xxxxxx, BioSante, Xxxxx and Xxxxxxxxx,
sometimes referred to herein collectively as the “Parties”).
Recitals:
A. The
Parties have entered into that certain Confidential Settlement Agreement
dated
as of May 25, 2006 (the “Settlement Agreement”), pursuant to which the Parties
agree to mutually release and forever discharge all claims against each other
in
exchange for the consideration provided therein.
B. Pursuant
to the terms and conditions of the Settlement
Agreement, BioSante’s obligation to tender the monetary consideration thereunder
is contingent upon acceptance of the Settlement Agreement by both the Equal
Employment Opportunity Commission (the “EEOC”) and the Occupational Safety and
Health Administration (“OSHA”).
C. The
EEOC
has approved the Settlement Agreement.
D. OSHA
has
required that certain provisions of the Settlement Agreement be clarified
and
amended as provided herein.
E. The
Parties desire to amend the Settlement Agreement as provided herein.
Agreement:
Now,
Therefore,
for
good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
1. Paragraph
8. Paragraph
8 of the Settlement Agreement is hereby amended to henceforth read as follows
(amendments have been highlighted for reference purposes only; amendment
shall
read as revised):
“In
further consideration for the undertakings by BioSante, Xxxxx, Donenberg
and
Xxxxxxxxxxx herein, Xxxxxx agrees on behalf of herself and her spouse and
family
members and her heirs, representatives, legatees, devisees and assigns to
keep
confidential, and to not disclose to any third parties whatsoever, other
than
her spouse and children to the extent only that such persons may have heretofore
acquired knowledge of the disputes between the parties hereto and their pending
resolution by virtue of residing in her household, her counsel Xxxxx X. Xxxxxx,
Xxxxxx Xxxxxxxxx, Xxxxxxx Xxxxxx and Xxxxx-Xx Xxxxxxxxxxxxx and Diver, Grach,
Quade & Masini, and her tax preparers (hereinafter “Third Parties”), either
by direct communications or by participation in or cooperation with any printed
or electronic media of any type or kind whatsoever, the allegations of the
Pending Litigation, the fact that such Pending Litigation was brought or
the
fact or particular terms of her settlement or of this Agreement. The disclosures
already made to OSHA and EEOC and to Judges of the Circuit Court of Xxxx
County,
Illinois, occasioned by the filing of the Pending Litigation and discussions
with OSHA and EEOC personnel necessary to implement the settlement and related
procedures described herein are excluded from the scope of this paragraph.
The
Parties hereto agree that they intend for this confidentiality agreement
by
Xxxxxx to extend and apply as broadly as is permissible by law. The Parties
agree that nothing in this Agreement is intended to or shall prevent, impede
or
interfere with Xxxxxx providing truthful testimony and information in the
course
of an investigation or proceeding authorized by law, initiated and conducted
by
an agency of the United States government. In the case of any such investigation
or proceeding, Xxxxxx hereby agrees that she shall, as soon as practicable
upon
learning of it, provide to BioSante through its counsel, Xxxx X. Xxxxxxxxxx,
Xxxxxxxxx & Xxxxxx LLP, 3500 Three First National Plaza, 00 Xxxx Xxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx, 00000-0000 (telephone 000-000-0000, telefax
312-977-4405, e-mail: xxxxxxxxxxx@xxxxx.xxx)
both
telephonic and written notice and a complete copy of any such subpoena and
written notice of its issuance to her. Xxxxxx agrees that any breach or
violation of the foregoing confidentiality terms and conditions shall be
deemed
a material breach of this Agreement for purposes of Paragraph 9
below.”
2. Paragraph
13.
Paragraph
13 of the Settlement Agreement is hereby amended to henceforth read as follows
(amendments have been highlighted for reference purposes only; amendment
shall
read as revised):
“The
Parties warrant that, other than the filing of the Pending Litigation, they
have
not, and agree that in the future they will not encourage, aid or assist
any
person to file or to prosecute any lawsuit, claim, charge or complaint against
any other Parties hereto or any Released Parties with respect to the Pending
Litigation, Xxxxxx’x employment with BioSante, or the non-renewal of Xxxxxx’x
Employment Agreement. The Parties further warrant that, other than the filing
of
the Pending Litigation, they have not, and agree that in the future they
will
not, assist any person who has filed or who may file, a lawsuit, claim, charge
or complaint against any other Party hereto, excepting only that each may,
under
compulsion of law and legal process, respond to a lawful subpoena or order
in
accordance with the provision stated in Paragraph 8 of this Agreement. The
Parties agree that nothing in this Agreement is intended to or shall prevent,
impede or interfere with Xxxxxx providing truthful testimony and information
in
the course of an investigation or proceeding authorized by law, initiated
and
conducted by an agency of the United States government.”
3. Effect
on Settlement Agreement; General Provisions. Except
as
set forth in this Amendment, the terms and provisions of the Settlement
Agreement are hereby ratified and declared to be in full force and effect.
This
Amendment shall be governed by the provisions of the Settlement Agreement
regarding choice of law, attorneys’ fees and successors and assigns. This
Amendment shall become effective upon its execution, which may occur in one
or
more counterparts, each of which shall be deemed an original, but all of
which
together shall constitute one and the same instrument. Captions and paragraph
headings are used herein for convenience only, are not a part of this Amendment
or the Settlement Agreement as amended by this Amendment and shall not be
used
in construing either document. On and after the date hereof, each reference
in
the Settlement Agreement to “this Agreement,” “hereunder,” “hereof,” “herein,”
or words of like import, and each reference in the other documents and
agreements relating to the Settlement Agreement, shall mean and be a reference
to the Settlement Agreement as amended hereby.
SIGNATURE
PAGES FOLLOW
In
Witness Whereof,
the
parties hereto have caused this Amendment to be executed in multiple originals,
all as of the day and year first above written.
WITNESSED:
/s/
Xxxx
Xxxxxx
/s/ Xxxxx
Xxxxxx
signed
and dated this 14th day
signed
and dated this 14th day
of July
2006
of July
2006
Xxxx
Xxxxxx Xxxxx
X.
Xxxxxx
For
Law Offices of Xxxxx X. Xxxxxx
Tax
ID No.: _______________________
/s/Dr.
Xxxxx
Xxxxxxxx
/s/ Xxxx X
Xxxxxxxxxx
signed
and dated this 14th
day
signed
and dated this 14th day
of July
2006, of July
2006,
BioSante
Pharmaceuticals, Inc.,
by
Xxxx
X.
Xxxxxxxxxx
Dr.
Xxxxx
Xxxxxxxx, its
Chairman
for
Ungaretti & Xxxxxx LLP
/s/
Xxxxxxx X.
Xxxxx
/s/
Xxxx X
Xxxxxxxxxx
signed
and dated this 17th
day
signed
and dated this 17th day
of July
2006, of July
2006,
Xxxxxxx
X.
Xxxxx
Xxxx
X.
Xxxxxxxxxx
for
Ungaretti & Xxxxxx LLP
/s/Xxxxxxx
X.
Xxxxxxxxx
/s/Xxxx
Xxxxxxxxxx
signed
and
dated this 17th
day
signed
and dated this 17th day
of July
2006,
of July
2006,
Xxxxxxx
Xxxxxxxxx
Xxxx
X.
Xxxxxxxxxx
for
Ungaretti & Xxxxxx LLP
/s/Xxxxxx Xxxxxxxxxxx
/s/
Xxxx X
Xxxxxxxxxx
signed
and dated this 14th
day
signed
and dated this 14th day
of July
2006,
of July
2006,
Xxxxxx
Xxxxxxxxxxx
Xxxx X Xxxxxxxxxx
for
Ungaretti & Xxxxxx LLP
