CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE
Exhibit 10.1
THIS CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE (“Agreement”) is entered into by
and between Unilife Corporation, its subsidiaries, including Unilife Medical Solutions Limited,
Unilife Medical Solutions, Inc., a Delaware corporation formerly known as Integrated BioSciences,
Inc. (“IBS”), its affiliates, successors, assigns, owners, directors and agents, located at 000
Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000 (collectively “Unilife” or “Company”) and
Xxxxxx Xxxxxxx (“Xxxxxxx”).
WHEREAS, Xxxxxxx was employed by Australian-based Unilife Medical Solutions Limited on
December 2, 2008, pursuant to an Offer of Employment, dated November 12, 2008; and
WHEREAS, Unilife and Xxxxxxx executed an Employment Agreement (“Employment Agreement”),
effective November 10, 2009; and
WHEREAS, Xxxxxxx and Unilife wish to end their employment relationship on mutually agreeable
terms, as set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements and covenants hereinafter set forth,
the above Recitals which are incorporated below, and for other good and valuable consideration, the
parties agree as follows:
1. Termination of Employment. Xxxxxxx has issued a resignation letter, resigning from
all positions with Unilife, including director and officer positions, which resignation Unilife has
accepted. Xxxxxxx and Unilife agree that Xxxxxxx will continue his employment through a transition
period to end no sooner than June 30, 2010 and no later than July 31, 2010, except that either
party may elect to terminate the transition period earlier upon two (2) weeks notice. The last day
of employment shall become the “Effective Date”. Prior to the Effective Date, the terms of the
Employment Agreement shall remain in effect.
2. Purpose. This Agreement is entered into to provide Xxxxxxx with certain severance
benefits while avoiding litigation and resolving any and all claims or differences arising out of
Xxxxxxx’x employment.
3. Severance Amount. For consideration of the promises set forth in this Separation
Agreement and General Release, Unilife shall:
a. pay Xxxxxxx xxxxxxxxx in the total gross sum of Eighty Thousand Dollars ($80,000.00), less
all appropriate withholdings and deductions required by law (“Severance Amount”). The Severance
Amount represents six (6) months of Xxxxxxx’x Base Compensation. The Severance Amount shall be
paid out over a period of six (6) months (the “Severance Period”), in accordance with Unilife’s
standard payroll procedures. These payments shall begin on the first payroll date following the
Effective Date.
b. pay Xxxxxxx’x monthly health insurance premiums during the Severance Period, in the event
Xxxxxxx elects coverage under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”);
however, the obligation to pay such premiums shall cease in the event Xxxxxxx obtains alternative
coverage through new or self-employment.
c. It is understood that, except as specifically set forth in Section 3a. and b. above, no
other post-separation severance payments shall be provided to Xxxxxxx following termination of
employment.
4. Other Payments. In fulfillment of its other obligations to Xxxxxxx, Unilife shall:
a. pay Xxxxxxx two (2) weeks of unused, accrued vacation. This payment shall be paid on the
first payroll date following the Effective Date.
b. fulfill all of Xxxxxxx’x vested stock options exercisable no later than three months after
the last day of Xxxxxxx’x employment, those options being the 500,000 options which vested on
December 2, 2008 and the 500,000 options which vested on December 2, 2009 (as they have been
converted to either CDIs or common shares under the Share Scheme of
Arrangement). Any actions taken by Xxxxxxx to exercise these stock options shall be governed
by the terms of the applicable plan documents.
c. Unilife has provided Xxxxxxx with certain outplacement benefits, the receipt of which
Xxxxxxx acknowledges.
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5. Unemployment Compensation. For consideration of the promises set forth in this
Agreement, Unilife agrees that it will not contest Xxxxxxx’x application for unemployment
compensation benefits. Xxxxxxx acknowledges that eligibility for such benefits is not determined
by Unilife.
6. Other Employee Benefits. Except as expressly set forth in this Agreement, Xxxxxxx
confirms and acknowledges that he will not be entitled to any additional employee benefits, bonus
payments, additional severance pay, or other payments whatsoever, from Unilife following the
Effective Date.
7. Admission. Nothing contained herein shall be construed as an admission by Unilife
of any liability of any kind to Xxxxxxx; any liability is expressly denied. Further, nothing
contained herein shall be construed as an admission by Xxxxxxx of any liability of any kind to
Unilife; any liability is expressly denied.
8. Non-Disclosure of Confidential Information.
x. Xxxxxxx acknowledges that, in the course of his employment with Unilife, he may have
acquired access to and became acquainted with certain information about the professional, business,
technological and financial affairs of Unilife that may be non-public, competitively sensitive,
confidential or proprietary in nature (“Confidential Information”). Confidential Information
includes, but is not limited to, manufacturing processes or techniques, information concerning its
customers, suppliers, products, operations, safety or industrial hygiene practices, business plans
and objectives, management practices, marketing plans, software and computer programs, data
processing systems and information contained therein, inventions, product and other designs,
technologies, financial statements, policies and any other
trade secrets or confidential or proprietary information of or about Unilife that is not
already available to the public.
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b. Except as permitted or directed by Unilife’s Chief Executive Officer or as required by law
or court order but in accordance with paragraph 8.c. below, Xxxxxxx shall not divulge, furnish or
make accessible to anyone or use in any way any Unilife Information which Xxxxxxx has acquired,
regardless of the original form of receipt of such Unilife Information. Xxxxxxx warrants that he
shall not retain possession of any Unilife memoranda, notes, records, reports or other documents
(or copies thereof) relating to Unilife’s business and or Unilife Information. In the event
Xxxxxxx locates any such documents or information, Xxxxxxx agrees that he shall immediately return
such documents or information to Unilife’s designated representative.
c. Compelled Disclosure. In the event that Xxxxxxx is requested or required (by
interrogatory, request for information or documents by a regulatory agency or other governmental
authority, subpoena, civil investigative demand or other legal process) to disclose any
Confidential Information of Unilife, Xxxxxxx shall provide Unilife with prompt notice of any such
request or requirement so that Unilife may seek an appropriate protective order or waive compliance
with the provisions of this Agreement. If, failing the entry of a protective order or the receipt
of a waiver hereunder, Xxxxxxx is, in the opinion of his counsel, compelled to disclose
Confidential Information, Xxxxxxx may disclose that portion of the Confidential Information which
his counsel advises is compelled to be disclosed. In any event, Xxxxxxx will render reasonable
cooperation to Unilife in Unilife’s effort to obtain an appropriate protective order or other
reliable assurance that confidential treatment will be accorded the Confidential Information.
d. Any intentional breach of this Section 8 shall be deemed a material breach of this
Agreement.
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9. Return of Property. No later than the Effective Date, Xxxxxxx agrees to return
promptly to Unilife any and all things in his possession and control that are owned or leased by
Unilife or otherwise relate to Unilife’s business, including but not limited to all computer
equipment, telephone equipment, books, manuals, memoranda, policy statements, correspondence,
minutes of meetings, agendas, interoffice communications, forecasts, analyses, working papers,
charts, expense reports, ledgers, journals, financial statements, data compilations, records,
reports, notes, computer disks, drives, documents and software, contracts, customer lists, keys,
advertising and marketing materials, and other documents, proprietary information and equipment
furnished to or prepared by Xxxxxxx in the course of or incident to his employment with Unilife.
No later than the Effective Date, Xxxxxxx shall promptly deliver to Unilife any documents, files
and/or records containing Confidential Information, as that term is defined in this Agreement, that
are in his possession. Xxxxxxx agrees that he will not engage in any activities that might alter,
modify or destroy any property, equipment of Confidential Information that is in his possession.
10. Release.
a. In consideration of the monetary benefits extended to Xxxxxxx under the terms of
Section 3.a. and b. of this Agreement, Xxxxxxx agrees for himself, his heirs, executors,
administrators, successors and assigns to forever release and discharge Unilife and its parents,
subsidiaries, affiliates, officers, directors, agents, contractors, consultants and employees, past
and present, collectively or individually, from any and all claims, demands, causes of actions,
losses and expenses of every nature whatsoever, known or unknown, arising up to and including the
date on which Xxxxxxx executes this Agreement, including but not limited to any claims arising out
of or in connection with his employment or separation from employment with Unilife.
i. These claims include, but are not limited to, breach of express or implied contract,
intentional or negligent infliction of emotional harm, libel, slander, claims under the Age
Discrimination in Employment Act (ADEA), Title VII of the Civil Rights Act, the Americans With
Disabilities Act, the Family and Medical Leave Act, the Pennsylvania Human Relations Act, the
Pennsylvania Wage Payment Collection Law (as well as any claims related to unpaid wages,
bonuses or benefits), any tort claim, any federal, state or municipal statute or ordinance
relating to unlawful discrimination, including any wrongful discharge claim which may be cognizable
under the laws of any state or country.
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ii. Notwithstanding the foregoing, the definition of claims as set forth in this Section 9
shall not include a breach of contract claim Xxxxxxx may assert arising from any breach by Unilife
of any terms of this Separation Agreement.
x. Xxxxxxx warrants and represents that he has not, prior to signing this Agreement, filed any
form of claim, charge, or complaint against Unilife. Xxxxxxx acknowledges that the General Release
and Waiver of Claims set forth above will completely bar any recovery or relief obtained on his
behalf, whether monetary or otherwise, by any person or entity with respect to any of the claims
that he has released.
c. Further, in consideration of Xxxxxxx’x foregoing release and waiver of claims, Unilife
warrants and represents for itself and its parents, subsidiaries, affiliates, officers, directors,
agents, contractors, consultants and employees, past and present, to forever release and discharge
Xxxxxxx and his heirs, executors, administrators, successors and assigns, collectively or
individually, from any and all claims, demands, causes of actions, losses and expenses of every
nature whatsoever, known or unknown, arising up to and including the date on which Unilife executes
this Agreement. Further, Unilife agrees it shall defend, indemnify and hold Xxxxxxx harmless for
any and all actions undertaken by Xxxxxxx during the course of his employment as Chief Financial
Officer for Unilife, such defense and indemnity to include the payment of attorneys’ fees where
applicable.
11. Further Covenants.
(a) The parties to this Agreement agree that they will take no action that would cause any
embarrassment or humiliation to the other or otherwise cause or contribute to the other being held
in disrepute by the general public or its employees, customers, prospective employers or suppliers.
As part of this covenant, the parties to this Agreement agree that they
will not make statements to any third parties about each other and/or their affiliates,
products, owners, employees, or representatives, that are in any way disparaging or negative. This
paragraph shall not be construed to prohibit Xxxxxxx or Unilife from cooperating with any
government agency in an official investigation or to prohibit Unilife from making the public
filings required when a Chief Financial Officer resigns or otherwise required by law or corporate
bylaws. Any breach of this provision shall be deemed a material breach of this Agreement.
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(b) To the extent that Xxxxxxx is not a potentially adverse party and/or to the extent that
the issues do not potentially subject him to criminal charges or penalties, Xxxxxxx agrees that he
will provide reasonable assistance and cooperation with Unilife and/or other persons engaged by
Unilife in the investigation, prosecution, and/or defense of any threatened or asserted litigation,
or investigations initiated by or involving Unilife or any person or entity affiliated with it, and
truthfully testify in connection with any such investigation or proceeding. Xxxxxxx understands
that he was employed as a management representative of the Company, and except as specifically
required by law, he will not assist any person or entity in any matter adverse to the Company
without first providing written notice.
(c) Xxxxxxx agrees that if Unilife requests his assistance after the Effective Date, that
Xxxxxxx may, at his discretion, provide ongoing assistance to Unilife as a contractor at the rate
of Two Hundred Dollars ($200.00) per hour.
12. Non-Solicitation and Non-Disclosure. Xxxxxxx remains bound by the noncompete
provisions of the Confidentiality and Non-Compete Agreement he signed when hired and of his
Employment Agreement. For a period of two (2) years following termination of employment, Xxxxxxx
will not, directly or indirectly:
(i) render services to, become employed by, be engaged as a consultant by, own, or have a
financial or other interest in (either as an individual, partner, joint venture, owner, manager,
employee, partner, officer, director, independent contractor, or other similar role) any
domestic or foreign business that manufactures or distributes syringes. Unilife’s Chief
Executive Officer may waive this provision in his sole written discretion.
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(ii) Unilife acknowledges that after the termination of Xxxxxxx’x employment with Unilife,
Xxxxxxx may alone, or in conjunction with another entity or person, engage in or perform services
for some other commercial activity. Xxxxxxx agrees that from the date of termination and
thereafter for a period of two (2) years, Xxxxxxx will not interfere with the employment or
advantageous business relationship which Unilife has with any current Unilife employees,
shareholders, directors, customers, vendors, competitors, financial institution clients, or any
other people or entities with whom Unilife has a business or employment relationship. Xxxxxxx
expressly agrees not to solicit, on Xxxxxxx’x own behalf or on behalf of another, any of Unilife’s
employees to resign from their employment with Unilife in order to go to work elsewhere during this
period.
In the event that Xxxxxxx commits any breach of this Section 12, Xxxxxxx acknowledges that
Unilife would suffer substantial and irreparable harm and damages. Accordingly, Xxxxxxx hereby
agrees that in such event, Unilife shall be entitled to temporary and/or permanent injunctive
relief, without the necessity of proving damage, to enforce the provisions of this Section, all
without prejudice to any and all other remedies that Unilife may have at law or in equity and that
Unilife may elect or invoke. Xxxxxxx agrees that if any of the provisions of this Section are or
become unenforceable, the remainder hereof shall nevertheless remain binding upon him to the
fullest extent possible, taking into consideration the purposes and spirit of this agreement. Any
invalid or unenforceable provision is to be reformed to the maximum time, geographic and/or
business limitations permitted by applicable laws, so as to be valid and enforceable.
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Xxxxxxx expressly acknowledges and agrees that these restrictive covenants are absolutely
necessary to protect the legitimate business interests of Unilife, because he is employed in a
position of trust and confidence and is provided with extensive access to Unilife’s
most confidential and proprietary trade secrets, and has significant involvement in important
business relationships, which constitute the goodwill of Unilife. Xxxxxxx further agrees and
acknowledges that these restrictive covenants are reasonable, will not restrict him from earning a
livelihood following the termination of employment, and are intended by the parties to be
enforceable following termination of employment for any reason.
13. Other Agreements. This Agreement represents the entire agreement between the
parties. It may not be modified or superseded except in writing, signed by both parties and
referencing this Agreement. Xxxxxxx’x stock options shall be governed by the terms of his stock
option grants and the corresponding plan document.
14. Severability. In the event that any provision of this Agreement shall be held to
be void, voidable or unenforceable, the remaining portions hereof shall remain in full force and
effect.
15. Governing Law. This Agreement shall be construed in accordance with and be
governed by the laws of the Commonwealth of Pennsylvania.
16. Acknowledgements. Xxxxxxx represents and acknowledges to Unilife as follows:
a. | that he has been advised to consult with an attorney of his
choosing concerning the legal significance of this Agreement; |
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b. | that he has been offered twenty-one (21) days to review and
consider all of the terms and provisions of this Agreement, and he has had
ample opportunity to review all of the provisions of this Agreement; |
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c. | that he is competent to understand the content and effect of
this Agreement and he has entered into this Agreement knowingly, by his own
free will and choice and without any compulsion, duress, or undue influence
from anyone; and |
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d. | that he has been advised that during the seven (7) day period
following his execution of this Agreement, he may revoke his acceptance of
this Agreement by delivering written notice of revocation to Xxxxx X.
Xxxxxxx, Esq., XxXxxx Xxxxxxx & Xxxxxx LLC, XX Xxx 0000, Xxxxxxxxxx, XX
00000-0000, and that this Agreement
shall not become effective or enforceable until after the revocation period
has expired. |
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IN WITNESS WHEREOF, Xxxxxxx has hereunto set his hand, and Unilife has caused this Agreement
to be executed by its duly authorized agent, all as of the dates set forth below.
EXECUTED in multiple copies, each having the same effect as the original.
Witness: |
/s/ Xxxxxxx X. Xxxxxx | /s/ Xxxxxx Xxxxxxx | ||||||||
XXXXXX XXXXXXX | ||||||||||
Date: |
June 28, 2010 | |||||||||
UNILIFE CORPORATION, ET AL | ||||||||||
Witness:
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/s/ Xxxxxx Xxxxxxx | By: | /s/ Xxxxxxx X. Xxxxxx | |||||||
Name: Xxxxxxx X. Xxxxxx | ||||||||||
Date:
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June 28, 2010 | Title: Director, HR & Legal Services | ||||||||
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