EXHIBIT 10.1
SEPARATION AGREEMENT AND
RELEASE
THIS SEPARATION AGREEMENT AND
RELEASE (“Release”), dated November 5, 2008, is
given by Gerard Martino (“EMPLOYEE”) to PAR
PHARMACEUTICAL, INC., and each and any of its parent and subsidiary
corporations, affiliates, departments and divisions (“THE
COMPANY”). The Effective Date of this Release shall be
as set forth in Section 6 herein.
RECITALS
A.
WHEREAS , EMPLOYEE has been employed by THE COMPANY as
Executive Vice President and Chief Operating Officer;
and
B.
WHEREAS , EMPLOYEE signed an Employment Agreement with THE
COMPANY on March 4, 2008 in which EMPLOYEE agreed that all payments
and benefits upon his separation from THE COMPANY were contingent
upon his signing of Separation Agreement and Release against THE
COMPANY within thirty (30) days after the date of separation;
and
C.
WHEREAS , as a result of EMPLOYEE’s separation from THE
COMPANY, the parties wish to fully and finally resolve all issues
concerning EMPLOYEE’s employment relationship with THE
COMPANY and to reiterate certain terms contained in
EMPLOYEE’s Employment Agreement.
NOW, IN CONSIDERATION
of the mutual promises and covenants in
the Employment Agreement and this Release, the sufficiency of which
EMPLOYEE acknowledges, the parties agree as follows:
OPERATIVE PROVISIONS
1.
Separation of Employment
. THE COMPANY and EMPLOYEE agree
that EMPLOYEE shall discontinue active employment from THE COMPANY
effective at the end of business on October 17, 2008. Continuing
October 18, 2008 and continuing through December 31, 2008, EMPLOYEE
shall be deemed an inactive employee and should make himself
available to THE COMPANY at such times and for such purposes as THE
COMPANY shall deem necessary. Effective January 1, 2009,
EMPLOYEE shall separate from THE COMPANY (“Separation
Date”), such separation of employment with THE COMPANY
occurring pursuant to Section 3.2.5 of the Employment Agreement by
and between the parties.
2.
Pay, Benefits and Stock Options Upon
Separation .
(a)
Separation Pay . On account of EMPLOYEE’s separation
from THE COMPANY, THE COMPANY shall pay EMPLOYEE such severance
payment as is
required in accordance with and subject
to the terms of the Employment Agreement except that THE COMPANY
shall pay EMPLOYEE his salary, as detailed in Section 2.1 of the
Employment Agreement, through December 31, 2008, and that the first
installment of severance, as detailed in Section 3.3.2, shall be
paid on February 15, 2009. Said payment(s) shall be subject
to all appropriate federal and state withholding and employment
taxes.
(b)
Benefits/Termination
. In accordance with the terms of
the Employment Agreement, EMPLOYEE will have the opportunity and
responsibility to elect COBRA continuation coverage pursuant to the
terms of that law and will thus be responsible for the execution of
the continuation of coverage forms upon termination of his
insurance coverage. As set forth in Section 3.3.6, THE
COMPANY shall pay EMPLOYEE’s COBRA premiums, except that the
payment of COBRA premiums shall commence on February 15,
2009.
(c)
Equity Awards . Any equity awards granted to EMPLOYEE during
his employment shall vest in accordance with and subject to the
terms of the Employment Agreement and the applicable equity
plans.
(d)
Unused Vacation
. THE COMPANY shall, in a single
lump-sum on February 15, 2009, pay EMPLOYEE for his unused vacation
days, which THE COMPANY and EMPLOYEE agree total 10
days.
(e)
Reimbursement of Expenses
. THE COMPANY and EMPLOYEE agree
that no unpaid expenses are due and owing EMPLOYEE.
(f)
No Other Payments
. EMPLOYEE acknowledges and agrees
that subject to and including those payments referenced herein, he
has been paid in full for all work performed, and has received
reimbursement for all business expenses, and is entitled to no
further payments or bonuses from THE COMPANY whatsoever for
services rendered or any other reason, except as set forth
herein.
(g)
Payment Terms . In accordance with and subject to the
covenants contained in the Employment Agreement, the payments and
benefits contained in this Section 2 are contingent upon
EMPLOYEE’s continued compliance with the terms of the
Employment Agreement, as referenced in Sections 7 and 8
herein.
3.
Consideration .
(a)
No Disparagement
. EMPLOYEE agrees to refrain from
any publication or any type of communication, oral or written, of a
defamatory or disparaging statement pertaining to THE COMPANY, its
past, present and future officers, directors, agents, employees or
representatives. THE COMPANY agrees to refrain from any
publication or any type of communication, oral or written, of a
defamatory or disparaging statement pertaining to EMPLOYEE.
Nothing in this Section shall be construed as prohibiting THE
COMPANY from making any disclosures as required by law or statute,
including the release of such information as is required to be
disclosed by THE COMPANY in connection with any legal proceeding,
filing
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with the Securities and Exchange
Commission (“SEC”) under the Securities Exchange Act of
1934, or as otherwise required by law.
(b)
Sufficiency of Consideration. No
Admission of Liability .
The parties agree that the consideration paid to EMPLOYEE by
the terms of this Release is good and sufficient consideration for
this Release. EMPLOYEE acknowledges that neither this
Release, nor any of the payments or benefits tendered in
conjunction herewith, shall be taken or construed to be an
admission or concession of any kind with respect to alleged
liability or alleged wrongdoing by THE COMPANY.
4.
General Release and Waiver of
Claims .
(a)
Solely in connection with
EMPLOYEE’s employment relationship with THE COMPANY, in
accordance with the terms of the Employment Agreement, and in
consideration of the additional promises and covenants made by THE
COMPANY in this Release, EMPLOYEE hereby knowingly and voluntarily
compromises, settles and releases THE COMPANY from any and all
past, present, or future claims, demands, obligations, or causes of
action, whether based on tort, contract, statutory or other
theories of recovery for anything that has occurred up to and
including the date of EMPLOYEE’s execution of this Release.
The released claims include those EMPLOYEE may have or has
against THE COMPANY, or which may later accrue to or be acquired by
EMPLOYEE against THE COMPANY and its predecessors, successors in
interest, assigns, parent and subsidiary organizations, affiliates,
and partners, and its past, present, and future officers,
directors, shareholders, agents, and employees, and their heirs and
assigns.
(b)
By way of specification, but not of
limitation, EMPLOYEE specifically agrees to release and waive all
claims for wrongful termination any claim for retaliation or
discrimination in employment under federal or state law or
regulation including, but not limited to, discrimination based on
age, sex, race, disability, handicap, national origin or any claims
under Title VII of the Civil Rights Act of 1964, the Age
Discrimination in Employment Act of 1967, as amended by the Older
Workers’ Benefits Protection Act (ADEA), the Americans with
Disabilities Act of 1990 (ADA), the New Jersey Law Against
Discrimination (LAD), the Consolidated Omnibus Budget
Reconciliation Act (COBRA), the Employee Retirement Income Security
Act (ERISA), the Immigration Reform and Control Act (IRCA), the
Fair Labor Standards Act (FLSA), the Conscientious Employee
Protection Act (CEPA), the Family Medical Leave Act (FMLA), the New
Jersey Family Leave Act (NJFLA), the New Jersey Wage and Hour Law,
and any other claims under New Jersey or federal law.
5.
Covenant Not to Sue
.
(a)
EMPLOYEE represents and agrees that
EMPLOYEE has not filed any lawsuits or arbitrations against THE
COMPANY, or filed or caused to be filed any charges or complaints
against THE COMPANY with any municipal, state or federal agency
charged with the enforcement of any law or any self-regulatory
organization.
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(b)
EMPLOYEE agrees, not inconsistent with
EEOC Enforcement Guidance on Non-Waivable Employee Rights Under
EEOC-Enforced Statutes dated April 11, 1997, and to the fullest
extent permitted by law, not to sue or file a charge, complaint,
grievance or demand for arbitration against THE COMPANY in any
claim, arbitration, suit, action, investigation or other proceeding
of any kind which relates to any matter that involved THE COMPANY,
and that occurred up, to and including the date of EMPLOYEE’s
execution of this Release, other than those non-employment-related
counterclaims that EMPLOYEE might assert against THE COMPANY if THE
COMPANY were to sue EMPLOYEE, unless required to do so by court
order, subpoena or other directive by a court, administrative
agency, arbitration panel or legislative body, or unless required
to enforce this Release.
(c)
Nothing in this Release shall prevent
EMPLOYEE from (i) commencing an action or proceeding to enforce
this Release, or (ii) exercising EMPLOYEE’s right under the
Older Workers Benefit Protection Act of 1990 to challenge the
validity of EMPLOYEE’s waiver of ADEA claims set forth in
this Release.
6.
Consideration and Revocation
Periods: Effective Date .
EMPLOYEE understands and acknowledges that the ADEA requires
THE COMPANY to provide EMPLOYEE with at least twenty one (21)
calendar days to consider this Release (“Consideration
Period”) prior to its execution. EMPLOYEE also
understands that he is entitled to revoke this Release at any time
during the seven (7) days following EMPLOYEE’s execution of
this Release (“Revocation Period”) by notifying THE
COMPANY in writing of his revocation. This Release shall become
effective on the day after the seven-day Revocation Period has
expired unless timely notice of
EMPLOYEE’s revocation has been delivered to THE COMPANY (the
“Effective Date”).
7.
Confidential Information
. EMPLOYEE
acknowledges that during EMPLOYEE’s employment with THE
COMPANY, EMPLOYEE has had access to Con
