EXHIBIT 10.20
CHANGE IN CONTROL AGREEMENT
THIS CHANGE IN CONTROL AGREEMENT (the "Agreement"), is made on this
_____ day of ____________, 2005, by and between Valera Pharmaceuticals, Inc.
(the "Company") and __________________ (the "Employee").
WHEREAS, the Employee serves as a senior executive of the Company;
and
WHEREAS, the Company and the Employee desire to establish certain
protections for the Employee in the event of his/her termination of employment.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and promises contained herein, and intending to be bound hereby, the
parties agree as follows:
1. Definitions. As used herein:
1.1. "Base Salary" means, as of any given date, the annual base rate
of salary payable to the Employee by the Company, as then in effect; provided,
however, that in the case of a resignation by the Employee for the Good Reason
described in Section 1.10.4, "Base Salary" will mean the annual base rate of
salary payable to the Employee by the Company, as in effect immediately prior to
the reduction giving rise to the Good Reason.
1.2. "Board" means the Board of Directors of the Company.
1.3. "Bonus Amount" means:
1.3.1. until the first anniversary of the date hereof, the
Employee's target annual bonus amount, as most recently specified by the
Compensation Committee of the Board; or
1.3.2. after the first anniversary of the date hereof, the
highest annual bonus received by the Employee during the three most recently
completed fiscal years of the Company (or, if the Employee was not employed by
the Company for three full fiscal years, then for such lesser number of full
fiscal years as the Employee was actually employed by the Company; provided,
however, that if the Employee was not employed by the Company for even one full
fiscal year, "Bonus Amount" means the Employee's target annual bonus amount, as
most recently specified by the Compensation Committee of the Board).
1.4. "Cause" means mean, as determined by the Board:
1.4.1. any material breach by the Employee of any of his/her
obligations or representations under this Agreement;
1.4.2. gross negligence in the performance by the Employee of
the duties required by his/her Position, as communicated by the Chairman;
1.4.3. a material violation, by the Employee, of the Company's
employee policies, as may be amended from time to time;
1.4.4. any conduct of the Employee involving any type of
disloyalty, dishonesty, breach of fiduciary duty, or willful misconduct,
including without limitation fraud, embezzlement, theft or dishonesty in the
course of his/her employment or engagement or the commission by the Employee of
any other action with the intent to materially injure the Company;
1.4.5. the Employee's conviction of, plea of guilty to, or
plea of nolo contendere to any felony, or any crime involving moral turpitude;
1.4.6. the Employee's failure to satisfactorily pass any drug
screening test required by the Company and, if appropriate, any supplemental
security checks;
1.4.7. the Employee's refusal, after explicit written notice,
to obey any lawful resolution of or direction by the Board which is consistent
with his/her duties to the Company;
1.4.8. the Employee's chronic absence from work (excluding
vacation, illness or leaves of absence approved by the Board); or
1.4.9. the Employee's unlawful use (including being under the
influence) or possession of illegal drugs on the Company's premises.
If termination for Cause is based upon Sections 1.4.1, 1.4.2, 1.4.3, 1.4.6,
1.4.7 or 1.4.8 and Board determines that the applicable breach, conduct or
violation is capable of being cured, then such applicable breach, conduct or
violation shall constitute a reason for a termination with Cause only if the
Board determines that the Employee has failed to cure such breach, conduct or
violation within thirty (30) days following written notice to Employee from the
Board.
1.5. "Change in Control" means the first to occur of any of the
following after the date hereof:
1.5.1. the direct or indirect acquisition by any person or
related group of persons (other than the Company or a person that directly or
indirectly controls, is controlled by, or is under common control with, the
Company) of beneficial ownership (within the meaning of Rule 13d-3 of the
Securities Exchange Act of 1934, as amended) of securities possessing more than
50% of the total combined voting power of the Company's then outstanding
securities;
1.5.2. a change in the composition of the Board over any
twelve month period such that a majority of the Board members ceases to be
comprised of individuals who either (a) have been board members continuously
since the beginning of such period, or (b) have been elected or nominated for
election as Board members during such period by at least a two-thirds majority
of the Board members described in clause (a) who were still in office at the
time such election or nomination was approved by the Board;
1.5.3. the consummation of any consolidation, share exchange
or merger of the Company in which (a) the stockholders of the Company
immediately prior to such transaction do not own at least a majority of the
voting power of the entity which survives/results from that transaction, or (b)
a shareholder of the Company who does not own a majority of the
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voting stock of the Company immediately prior to such transaction, owns a
majority of the Company's voting stock immediately after such transaction; or
1.5.4. the liquidation or dissolution of the Company, or any
sale, lease, exchange or other transfer (in one transaction or a series of
related transactions) of all or substantially all the assets of the Company,
including stock held in subsidiary corporations or interests held in subsidiary
ventures.
1.6. "COBRA" means the Consolidated Omnibus Budget Reconciliation
Act of 1986, as amended.
1.7. "Code" means Internal Revenue Code of 1986, as amended.
1.8. "Disability" means the Employee's inability, by reason of any
physical or mental impairment, to substantially perform his/her regular duties
as contemplated by this Agreement, as determined by the Board in its sole
discretion (after affording the Employee the opportunity to present his/her
case), which inability is reasonably expected to continue for at least one year
from its commencement and at least 90 days from the date of such determination.
1.9. "First Anniversary Date" is the three hundred and sixty fifth
(365th) day following the date of the consummation of a Change in Control of the
Company.
1.10. "Good Reason" means, without the Employee's prior written
consent, any of the following:
1.10.1. an adverse change in the Employee's title;
1.10.2. a reduction in the Employee's authority, duties or
responsibilities, or the assignment to the Employee of duties that are
inconsistent, in a material respect, with Employee's position;
1.10.3. the relocation of the Employee's principal worksite
more than 50 miles;
1.10.4. a reduction in the Employee's Base Salary, unless the
percentage by which the Base Salary is reduced applies generally to all other
executive officers of the Company;
1.10.5. the Company's failure to pay any compensation due to
Employee.
However, the foregoing events or conditions will constitute Good Reason only if
the Employee provides the Company with written objection to the event or
condition within fifteen (15) days following the occurrence thereof, the Company
does not reverse or otherwise cure the event or condition within thirty (30)
days of receiving that written objection and the Employee resigns his/her
employment within fifteen (15) days following the expiration of that cure
period.
1.11. "Intellectual Property" means (a) all inventions (whether
patentable or unpatentable and whether or not reduced to practice), all
improvements thereto, and all patents
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and patent applications claiming such inventions, (b) all trademarks, service
marks, trade dress, logos, trade names, fictitious names, brand names, brand
marks and corporate names, together with all translations, adaptations,
derivations, and combinations thereof and including all goodwill associated
therewith, and all applications, registrations, and renewals in connection
therewith, (c) all copyrightable works, all copyrights, and all applications,
registrations, and renewals in connection therewith, (d) all mask works and all
applications, registrations, and renewals in connection therewith, (e) all trade
secrets (including research and development, know-how, formulas, compositions,
manufacturing and production processes and techniques, methodologies, technical
data, designs, drawings and specifications), (f) all computer software
(including data, source and object codes and related documentation), (g) all
other proprietary rights, (h) all copies and tangible embodiments thereof (in
whatever form or medium), or similar intangible personal property which have
been or are developed or created in whole or in part by the Employee (i) at any
time and at any place while the Employee is employed by Company and which, in
the case of any or all of the foregoing, are related to and used in connection
with the business of the Company, or (ii) as a result of tasks assigned to the
Employee by the Company.
1.12. "Proprietary Information" means any and all information of the
Company or of any subsidiary or affiliate of the Company. Such Proprietary
Information shall include, but shall not be limited to, the following items and
information relating to the following items: (a) all intellectual property and
proprietary rights of the Company (including without limitation Intellectual
Property) (b) computer codes or instructions (including source and object code
listings, program logic algorithms, subroutines, modules or other subparts of
computer programs and related documentation, including program notation),
computer processing systems and techniques, all computer inputs and outputs
(regardless of the media on which stored or located), hardware and software
configurations, designs, architecture and interfaces, (c) business research,
studies, procedures and costs, (d) financial data, (e) distribution methods, (f)
marketing data, methods, plans and efforts, (g) the identities of actual and
prospective customers, contractors and suppliers, (h) the terms of contracts and
agreements with customers, contractors and suppliers, (i) the needs and
requirements of, and the Company's course of dealing with, actual or prospective
customers, contractors and suppliers, (j) personnel information, (k) customer
and vendor credit information, and (l) any information received from third
parties subject to obligations of non-disclosure or non-use. Failure by the
Company to xxxx any of the Proprietary Information as confidential or
proprietary shall not affect its status as Proprietary Information under the
terms of this Agreement.
1.13. "Severance Payment" means an amount equal to the sum of the
Base Salary and the Bonus Amount.
1.14. "Release" means a release substantially in the form attached
hereto as Exhibit A.
1.15. "Restrictive Covenants" means the covenants set forth in
Sections 6.1 and 6.2 of this Agreement.
1.16. "Total After-Tax Payments" means the total of all "parachute
payments" (as that term is defined in Section 280G(b)(2) of the Code) made to or
for the benefit of
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Employee (whether made hereunder or otherwise), after reduction for all
applicable federal taxes (including, without limitation, the tax described in
Section 4999 of the Code).
2. Termination in General. The Company may terminate the Employee's
employment at any time. The Employee may terminate his/her employment at any
time; provided that before the Employee may voluntarily terminate his/her
employment with the Company, he/she must provide thirty (30) days prior written
notice (or such shorter notice as is acceptable to the Company) to the Company.
Upon any termination of the Employee's employment with the Company for any
reason: (a) the Employee (unless otherwise requested by the Board) concurrently
will resign any officer or director positions he/she holds with the Company, its
subsidiaries or affiliates; (b) the Company will pay to the Employee all accrued
but unpaid Base Salary through the date of termination; and (c) except as
explicitly provided in Section 3.2 or otherwise pursuant to COBRA, all Base
Salary, other compensation and benefits will cease and the Company will have no
further liability or obligation to the Employee. The foregoing will not be
construed to limit the Employee's right to payment or reimbursement for claims
incurred under any insurance contract funding an employee benefit plan, policy
or arrangement of the Company in accordance with the terms of such insurance
contract.
3. Certain Benefits Following a Change in Control.
3.1. Severance Benefits. If the Employee's employment with the
Company ceases during the period commencing on the thirtieth (30th) day
immediately preceding the date of the consummation of a Change in Control and
ending on the First Anniversary Date due to a termination by the Company without
Cause or a resignation by the Employee for Good Reason, then in addition to the
payments and benefits provided for in Section 2, and subject to reduction or
elimination pursuant to Section 4 and the requirements of Section 5, Employee
will be entitled to:
3.1.1. payment of any bonus earned with respect to a year
ended prior to the date of such cessation of employment;
3.1.2. payment of the Severance Payment; and
3.1.3. waiver of the applicable premium otherwise payable for
COBRA continuation coverage for the Employee (and, to the extent covered
immediately prior to the date of the cessation of employment, his/her spouse and
dependents) for a period of 12 months.
For avoidance of doubt, cessation of employment due to the Employee's death or
Disability will not constitute a termination without Cause. The payments and
benefits described in this Section 3.1 are in lieu of, and not in addition to,
any other severance arrangement maintained by the Company.
4. Parachute Payments.
4.1. Generally. If the Total After-Tax Payments paid to or for the
benefit of the Employee would be increased by the limitation or elimination of
any amount payable to the Employee (whether under this Agreement or otherwise),
then the Company will reduce or, or if
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necessary, eliminate any or all such payments to the extent necessary to
maximize the Total After-Tax Payments.
4.2. Measurements and Adjustments. The determination of the amount
of the payments and benefits paid and payable to the Employee and whether and to
what extent reduction or the elimination of any amounts payable are required to
be made under this Section 4 will be made at the Company's expense by an
independent auditor selected by the Company. Any determination by the auditor
shall be binding upon the Company and the Employee.
4.3. Underpayment or Overpayment. In the event of any underpayment
or overpayment to the Employee (determined after the application of Section
4.1), the amount of such underpayment or overpayment will be, as promptly as
practicable, paid by the Company to the Employee or refunded by the Employee to
the Company, as the case may be.
5. Timing of Payments Following Termination. Notwithstanding any provision
of this Agreement, the payments and benefits described in Section 3 are
conditioned on the Employee's execution and delivery to the Company of a Release
in a manner consistent with the Older Workers Benefit Protection Act and any
similar state law that is applicable. The payments described in Sections 3.1.1
and 3.1.2 will be paid, and the premium waiver described in Section 3.1.3 will
become effective, as soon as the Release becomes irrevocable.
6. Restrictive Covenants. As consideration for all of the payments to be
made to the Employee pursuant to Section 3 of this Agreement, the Employee
agrees to be bound by the Restrictive Covenants set forth in this Section 6. The
Restrictive Covenants will apply without regard to whether any termination of
the Employee's employment is initiated by the Company or the Employee, and
without regard to the reason for that termination.
6.1. Confidentiality. The Employee recognizes and acknowledges that
the Proprietary Information is a valuable, special and unique asset of the
business of the Company. As a result, both during the Employee's employment by
the Company and thereafter, the Employee will not, without the prior written
consent of the Company, for any reason either directly or indirectly divulge to
any third-party or use for his/her own benefit, or for any purpose other than
the exclusive benefit of the Company, any Proprietary Information; provided,
however, that the Employee may during his/her employment by the Company disclose
Proprietary Information to third parties as may be necessary or appropriate to
the effective and efficient discharge of his/her duties as an employee hereunder
(provided that the third party recipient has signed the Company's then-approved
confidentiality or similar agreement) or as such disclosures may be required by
law. If the Employee or any of his/her representatives becomes legally compelled
to disclose any of the Proprietary Information, the Employee will provide the
Company with prompt written notice so that the Company may seek a protective
order or other appropriate remedy. The non-disclosure and non-use obligations
with respect to Proprietary Information set forth in this Section 6.1 shall not
apply to any information that is in or becomes part of the public domain through
no improper act on the part of the Employee.
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6.2. Property of the Company.
6.2.1. Proprietary Information. All right, title and interest
in and to Proprietary Information will be and remain the sole and exclusive
property of the Company. The Employee will not remove from the Company's offices
or premises any documents, records, notebooks, files, correspondence, reports,
memoranda or similar materials of or containing Proprietary Information, or
other materials or property of any kind belonging to the Company unless
necessary or appropriate in the performance of his/her duties to the Company. If
the Employee removes such materials or property in the performance of his/her
duties, the Employee will return such materials or property to their proper
files or places of safekeeping as promptly as possible after the removal has
served its specific purpose. The Employee will not make, retain, remove and/or
distribute any copies of any such materials or property, or divulge to any third
person the nature of and/or contents of such materials or property or any other
oral or written information to which he may have access or become familiar in
the course of his/her employment, except to the extent necessary in the
performance of his/her duties. Upon termination of the Employee's employment
with the Company, he will leave with the Company or promptly return to the
Company all originals and copies of such materials or property then in his/her
possession.
6.3. Acknowledgements. The Employee acknowledges that the
Restrictive Covenants are reasonable and necessary to protect the legitimate
interests of the Company. The Employee further acknowledges that the Restrictive
Covenants are included herein in order to induce the Company to enter into this
Agreement and that the Company would not have entered into this Agreement in the
absence of the Restrictive Covenants.
6.4. Remedies and Enforcement Upon Breach.
6.4.1. Specific Enforcement. The Employee acknowledges that
any breach by him/her, willfully or otherwise, of the Restrictive Covenants will
cause continuing and irreparable injury to the Company for which monetary
damages would not be an adequate remedy. The Employee shall not, in any action
or proceeding to enforce any of the provisions of this Agreement, assert the
claim or defense that such an adequate remedy at law exists. In the event of any
such breach by the Employee, the Company shall have the right to enforce the
Restrictive Covenants by seeking injunctive or other relief in any court,
without any requirement that a bond or other security be posted, and this
Agreement shall not in any way limit remedies of law or in equity otherwise
available to the Company.
6.4.2. Judicial Modification. If any court determines that any
of the Restrictive Covenants, or any part thereof, is unenforceable because of
the scope of such provision, such court shall have the power to modify such
provision and, in its modified form, such provision shall then be enforceable.
6.4.3. Accounting. If the Employee breaches any of the
Restrictive Covenants, the Company will have the right and remedy to require the
Employee to account for and pay over to the Company all compensation, profits,
monies, accruals, increments or other benefits derived or received by the
Employee as the result of such breach. This right and remedy
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will be in addition to, and not in lieu of, any other rights and remedies
available to the Company under law or in equity.
7. Miscellaneous.
7.1. No Liability of Officers and Directors for Severance Upon
Insolvency. Notwithstanding any other provision of the Agreement and intending
to be bound by this provision, the Employee hereby (a) waives any right to claim
payment of amounts owed to him/her, now or in the future, pursuant to this
Agreement from directors or officers of the Company if the Company becomes
insolvent, and (b) fully and forever releases and discharges the Company's
officers and directors from any and all claims, demands, liens, actions, suits,
causes of action or judgments arising out of any present or future claim for
such amounts.
7.2. Successors and Assigns. The Company may assign this Agreement
to any successor to all or substantially all of its assets and business by means
of liquidation, dissolution, merger, consolidation, transfer of assets, or
otherwise. The rights of the Employee hereunder are personal to the Employee and
may not be assigned by him/her.
7.3. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New Jersey without regard
to the principles of conflicts of laws.
7.4. Enforcement. Any legal proceeding arising out of or relating to
this Agreement will be instituted in the United States District Court for the
District of New Jersey, or if that court does not have or will not accept
jurisdiction, in any court of general jurisdiction in the State of New Jersey,
and the Employee and the Company hereby consent to the personal and exclusive
jurisdiction of such court(s) and hereby waive any objection(s) that they may
have to personal jurisdiction, the laying of venue of any such proceeding and
any claim or defense of inconvenient forum.
7.5. Waivers; Reparability. The waiver by either party hereto of any
right hereunder or any failure to perform or breach by the other party hereto
shall not be deemed a waiver of any other right hereunder or any other failure
or breach by the other party hereto, whether of the same or a similar nature or
otherwise. No waiver shall be deemed to have occurred unless set forth in a
writing executed by or on behalf of the waiving party. No such written waiver
shall be deemed a continuing waiver unless specifically stated therein, and each
such waiver shall operate only as to the specific term or condition waived. If
any provision of this Agreement shall be declared to be invalid or
unenforceable, in whole or in part, such invalidity or unenforceability shall
not affect the remaining provisions hereof which shall remain in full force and
effect.
7.6. Notices. All notices and communications that are required or
permitted to be given hereunder shall be in writing and shall be deemed to have
been duly given when delivered personally or upon mailing by registered or
certified mail, postage prepaid, return receipt requested, as follows:
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If to the Company, to:
Valera Pharmaceuticals, Inc.
0 Xxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxx X. Xxxxxxx, M.D., Chief Executive Officer
Fax: (000) 000-0000
With a copy to:
Xxxxxx Xxxxxxxx LLP
000 Xxxxxx Xxxx
000 Xxxxxxx Xxxx
Xxxxxx, XX 00000-0000
Attn: Xxxxxxxxxxx Xxxxxx, Esquire
Fax: (000) 000-0000
If to Employee: to the address on file with the Company,
or to such other address as may be specified in a notice given by one party to
the other party hereunder.
7.7. Entire Agreement; Amendments. This Agreement and the attached
exhibit contain the entire agreement and understanding of the parties relating
to the provision of Change in Control benefits, and merges and supersedes all
prior and contemporaneous discussions, agreements and understandings of every
nature relating to that subject. This Agreement may not be changed or modified,
except by an Agreement in writing signed by each of the parties hereto.
7.8. Withholding. The Company will withhold from any payments due to
Employee hereunder, all taxes, FICA or other amounts required to be withheld
pursuant to any applicable law.
7.9. Compliance with Section 409A of the Code. Notwithstanding any
other provision of this Agreement, no payment will be made hereunder other than
on a date consistent with Section 409A of the Code or related guidance.
7.10. Headings Descriptive. The headings of sections and paragraphs
of this Agreement are inserted for convenience only and shall not in any way
affect the meaning or construction of any provision of this Agreement.
7.11. Counterparts. This Agreement may be executed in multiple
counterparts, each of which will be deemed to be an original, but all of which
together will constitute but one and the same instrument.
[signature page follows]
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IN WITNESS WHEREOF AND INTENDING TO BE LEGALLY BOUND, the parties
hereto have executed this Agreement on the date and year first above written.
VALERA PHARMACEUTICALS, INC.
________________________________
By:
Title:
EMPLOYEE
________________________________
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EXHIBIT A
RELEASE AND NON-DISPARAGEMENT AGREEMENT
THIS RELEASE AND NON-DISPARAGEMENT AGREEMENT (this "Release") is
made as of the ___ day of _______, _____ by and between ____________________
(the "Employee") and Valera Pharmaceuticals, Inc. (the "Company").
WHEREAS, the Employee's employment as an executive of the Company
has terminated; and
WHEREAS, pursuant to Section 3 of the Change in Control Agreement by
and between the Company and the Employee dated as of __________ ___, 2005 (the
"Change in Control Agreement"), the Company has agreed to pay the Employee
certain amounts and to provide her with certain rights and benefits, subject to
the execution of this Release.
NOW THEREFORE, in consideration of these premises and the mutual
promises contained herein, and intending to be legally bound hereby, the parties
agree as follows:
SECTION 1. Consideration. The Employee acknowledges that: (a) the payments,
rights and benefits set forth in Section 3 of the Change in Control Agreement
constitute full settlement of all of his/her rights under the Change in Control
Agreement, (b) he/she has no entitlement under any other severance or similar
arrangement maintained by the Company, and (c) except as otherwise provided
specifically in this Release, the Company does not and will not have any other
liability or obligation to the Employee. The Employee further acknowledges that,
in the absence of his/her execution of this Release, the payments and benefits
specified in Section 3 of the Change in Control Agreement would not otherwise be
due to the Employee.
SECTION 2. Release and Covenant Not to Xxx. The Employee hereby fully and
forever releases and discharges the Company and its parents, affiliates and
subsidiaries, including all predecessors and successors, assigns, officers,
directors, trustees, employees, agents and attorneys, past and present, from any
and all claims, demands, liens, agreements, contracts, covenants, actions,
suits, causes of action, obligations, controversies, debts, costs, expenses,
damages, judgments, orders and liabilities, of whatever kind or nature, direct
or indirect, in law, equity or otherwise, whether known or unknown, arising
through the date of this Release, out of his/her employment by the Company or
the termination thereof, including, but not limited to, any claims for relief or
causes of action under the Age Discrimination in Employment Act, 29 U.S.C.
Section 621 et seq., or any other federal, state or local statute, ordinance or
regulation regarding discrimination in employment and any claims, demands or
actions based upon alleged wrongful or retaliatory discharge or breach of
contract under any state or federal law. The Employee expressly represents that
he/she has not filed a lawsuit or initiated any other administrative proceeding
against the Company (including for purposes of this Section 2, its parents,
affiliates and subsidiaries), and that he/she has not assigned any claim against
the Company (or its parents, affiliates and subsidiaries) to any other person or
entity. The Employee further promises not to initiate a lawsuit or to bring any
other claim against the Company (or its parents, affiliates and subsidiaries)
arising out of or in any way related to his/her employment by the Company or the
termination of that employment. The forgoing will not be deemed to release the
Company from (a) claims solely to enforce this Release, (b) claims solely to
enforce Section 3 of the Change in Control Agreement, (c) claims for
indemnification under the Company's By-Laws, or (d) claims solely to enforce the
terms of any equity incentive award agreement between the Employee and the
Company.
This Release will not prevent the Employee from filing a charge with the Equal
Employment Opportunity Commission (or similar state agency) or participating in
any investigation conducted by the Equal Employment Opportunity Commission (or
similar state agency); provided, however, that any claims by the Employee for
personal relief in connection with such a charge or investigation (such as
reinstatement or monetary damages) would be barred.
SECTION 3. Restrictive Covenants. The Employee acknowledges that the terms of
Section 6 of the Change in Control Agreement will survive the termination of
his/her employment. The Employee affirms that the restrictions contained in
Section 6 of the Change in Control Agreement are reasonable and necessary to
protect the legitimate interests of the Company, that he/she received adequate
consideration in exchange for agreeing to those restrictions and that he/she
will abide by those restrictions.
SECTION 4. Non-Disparagement. The Company (meaning, solely for this purpose,
Company's directors and executive officers and other individuals authorized to
make official communications on Company's behalf) will not disparage the
Employee or the Employee's performance or otherwise take any action which could
reasonably be expected to adversely affect the Employee's personal or
professional reputation. Similarly, the Employee will not disparage Company or
any of its directors, officers, agents or employees or otherwise take any action
which could reasonably be expected to adversely affect the reputation of the
Company or the personal or professional reputation of any of the Company's
directors, officers, agents or employees.
SECTION 5. Cooperation. The Employee further agrees that, subject to
reimbursement of his/her reasonable expenses, he/she will cooperate fully with
the Company and its counsel with respect to any matter (including litigation,
investigations, or governmental proceedings) which relates to matters with which
the Employee was involved during his/her employment with Company. The Employee
shall render such cooperation in a timely manner on reasonable notice from the
Company.
SECTION 6. RESCISSION RIGHT. THE EMPLOYEE EXPRESSLY ACKNOWLEDGES AND RECITES
THAT (A) HE/SHE HAS READ AND UNDERSTANDS THIS RELEASE IN ITS ENTIRETY, (B)
HE/SHE HAS ENTERED INTO THIS RELEASE KNOWINGLY AND VOLUNTARILY, WITHOUT ANY
DURESS OR COERCION; (C) HE/SHE HAS BEEN ADVISED ORALLY AND IS HEREBY ADVISED IN
WRITING TO CONSULT WITH AN ATTORNEY WITH RESPECT TO THIS RELEASE BEFORE SIGNING
IT; (D) HE/SHE WAS PROVIDED 21 CALENDAR DAYS AFTER RECEIPT OF THE RELEASE TO
CONSIDER ITS TERMS BEFORE SIGNING IT (OR SUCH LONGER PERIOD AS IS REQUIRED FOR
THIS RELEASE TO BE EFFECTIVE UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT OR
ANY SIMILAR STATE LAW); AND (E) HE/SHE IS PROVIDED SEVEN (7) CALENDAR DAYS FROM
THE DATE OF SIGNING TO TERMINATE AND REVOKE THIS RELEASE, IN WHICH CASE THIS
RELEASE SHALL BE UNENFORCEABLE, NULL AND VOID. THE EMPLOYEE MAY REVOKE THIS
RELEASE DURING THOSE SEVEN (7) DAYS BY PROVIDING WRITTEN NOTICE OF REVOCATION TO
THE COMPANY AT THE ADDRESS LISTED IN SECTION 7.6 OF THE CHANGE IN CONTROL
AGREEMENT.
SECTION 7. Challenge. If the Employee violates or challenges the enforceability
of any provisions of this Release, no further payments, rights or benefits under
Section 3 of the Change in Control Agreement will be due to the Employee.
SECTION 8. Miscellaneous.
8.1. No Admission of Liability. This Release is not to be construed
as an admission of any violation of any federal, state or local statute,
ordinance or regulation or of any duty owed by
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the Company to the Employee. There have been no such violations, and the Company
specifically denies any such violations.
8.2. No Reinstatement. The Employee agrees that he/she will not
apply for reinstatement with the Company or seek in any way to be reinstated,
re-employed or hired by the Company in the future.
8.3. Successors and Assigns. This Release shall inure to the benefit
of and be binding upon the Company and the Employee and their respective
successors, executors, administrators and heirs. The Employee may not make any
assignment of this Release or any interest herein, by operation of law or
otherwise. The Company may assign this Release to any successor to all or
substantially all of its assets and business by means of liquidation,
dissolution, merger, consolidation, transfer of assets or otherwise.
8.4. Severability. Whenever possible, each provision of this Release
will be interpreted in such manner as to be effective and valid under applicable
law. However, if any provision of this Release is held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
will not affect any other provision, and this Release will be reformed,
construed and enforced as though the invalid, illegal or unenforceable provision
had never been herein contained.
8.5. Entire Agreement; Amendments. Except as otherwise provided
herein, this Release contains the entire agreement and understanding of the
parties hereto relating to the subject matter hereof, and merges and supersedes
all prior and contemporaneous discussions, agreements and understandings of
every nature relating to the subject matter hereof. This Release may not be
changed or modified, except by an Agreement in writing signed by each of the
parties hereto.
8.6. Governing Law. This Release shall be governed by, and enforced
in accordance with, the laws of the State of New Jersey without regard to the
application of the principles of conflicts of laws.
8.7. Counterparts and Facsimiles. This Release may be executed,
including execution by facsimile signature, in one or more counterparts, each of
which shall be deemed an original, and all of which together shall be deemed to
be one and the same instrument.
IN WITNESS WHEREOF, the Company has caused this Release to be
executed by its duly authorized officer, and the Employee has executed this
Release, in each case as of the date first above written.
VALERA PHARMACEUTICALS, INC.
_________________________________
By:
Title:
EMPLOYEE
________________________________
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