SEPARATION AND GENERAL RELEASE AGREEMENT
This Separation and General Release Agreement (“ Agreement ”), dated March 21, 2008, is entered into by and between Timothy McIntyre (the “ Employee ”) and Vyteris Holdings (Nevada), Inc., a Nevada corporation (the “ Employer ”), and together with its parents, subsidiaries, affiliates and each of their respective officers, directors, employees, shareholders, investors, members, managers, partners, plans, plan administrators and fiduciaries, representatives, attorneys, advisors and agents (in both their individual and official capacities), as well as any predecessors, future successors or assigns or estates of any of the foregoing (collectively, the “ Company ”).
1. Separation of Employment . Employee acknowledges and understands that Employee’s last day of employment with Employer is March 24, 2008 (the “ Separation Date ”) and that Employee has received all compensation and benefits to which Employee is entitled as a result of Employee’s employment, except for the compensation provided for in this Agreement. Employee understands that, except as otherwise provided in this Agreement, Employee is entitled to nothing further from Company, including reinstatement by Company or any future or deferred compensation.
2. General Release . In consideration of the payments and other benefits set forth in Section 4 below, Employee hereby unconditionally and irrevocably releases, waives, discharges and gives up, to the fullest extent permitted by law, any and all Claims (as defined below) that Employee may have against Company, arising on or prior to the date of Employee’s execution and delivery of this Agreement to Employer. “ Claims ” means any and all actions, charges, complaints, controversies, demands, causes of action, suits, rights, and/or claims whatsoever, relating to Employee's employment with the Company and his resignation and termination therefrom, for debts, sums of money, wages, salary, commissions, bonuses, stock options, severance pay, vacation pay, sick pay, fees and costs, attorneys’ fees, losses, penalties, damages, including damages for pain and suffering and emotional harm arising, directly or indirectly, out of any promise, agreement, offer letter, contract, understanding, common law, tort, the laws, statutes, and/or regulations of the States of New York, New Jersey and Nevada or any other state and the United States, including, but not limited to, and to the extent applicable, federal and state wage and hour laws, federal and state whistleblower laws, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Equal Pay Act, the Americans with Disabilities Act, the Family and Medical Leave Act, the Employee Retirement Income Security Act (excluding COBRA), the Vietnam Era Veterans Readjustment Assistance Act, the Fair Credit Reporting Act, the Fair Labor Standards Act, the Age Discrimination in Employment Act (" ADEA "), the Older Workers Benefit Protection Act, the Occupational Safety and Health Act, the Sarbanes-Oxley Act of 2002, the New York State Human Rights Law, the New York City Human Rights Law, the New Jersey Law Against Discrimination, the New Jersey Family Leave Act, the New Jersey Civil Rights Act, and the New Jersey Conscientious Employee Protection Act as each may be amended from time to time, whether arising directly or indirectly from any act or omission, whether intentional or unintentional. This releases all Claims including those of which Employee is not aware and those not mentioned in this Agreement. Employee expressly acknowledges and agrees that, by entering into this Agreement, Employee is releasing and waiving any and all Claims, including, without limitation, Claims that Employee may have arising under ADEA, which have arisen on or before the date of Employee’s execution and delivery of this Agreement to Employer.
The foregoing General Release does not include, and does not release, the Employee's right to seek to enforce the terms of this Agreement, including without limitation the right of Employee to obtain the compensation owed to Employee under Section 4 below. The foregoing General Release does not prohibit or limit Employee's right to assert defenses or counterclaims against any person, group of persons and/or entity who or that is the beneficiary of the foregoing General Release and who or that asserts a claim or commences a suit or action against Employee, or to otherwise assert rights of contribution or indemnification against any person, group of persons and/or entity in connection with any such claim, suit or action.
The foregoing General Release does not include, and does not release or in any way diminish or reduce, any and all rights Employee may currently have or may have ever had under any of Employer’s insurance policies, including but not limited to D&O insurance policies. Employee’s rights under said insurance policies shall survive the execution of this Agreement, subject to the terms of such policies, the Company's by-laws, and applicable law. Furthermore, nothing in this General Release or anywhere else in this Agreement is intended to nor shall it limit in any way Employee’s right and ability to bring Claims solely against any insurance company for denial of coverage under any such policy that may provide such coverage to Employee. To the extent Employee has a dispute with any insurance company concerning coverage under any of the Employer’s insurance policies, Employer shall provide Employee with all reasonable requested information relevant to the dispute ( e.g ., provide copies of applicable policies, answer reasonable questions concerning communications with the insurer), and shall not do anything to unnecessarily or unreasonably undercut Employee’s effort to obtain coverage.
3. Representations; Covenant Not to Sue . Employee hereby represents and warrants to Company that Employee has not: (A) filed, caused or permitted to be filed any pending proceeding (nor has Employee lodged a complaint with any governmental or quasi-governmental authority) against Company, nor has Employee agreed to do any of the foregoing; (B) assigned, transferred, sold, encumbered, pledged, hypothecated, mortgaged, distributed, or otherwise disposed of or conveyed to any third party any right or Claim against Company that has been released in this Agreement; or (C) directly or indirectly assisted any third party in filing, causing or assisting to be filed, any Claim against Company. In addition, Employee represents and warrants that Employee shall not encourage or solicit or voluntarily assist or participate in any way in the filing, reporting or prosecution by himself or any third party of a proceeding or Claim against Company, except as permitted under Section 2 of this Agreement.
4. Payment and Release from Non-Compete . As good consideration for Employee’s execution, delivery, and non-revocation of this Agreement, Employer shall:
(A) Pay to Employee a lump sum cash amount equal to $152,000 less tax withholding and other deductions required by law. Such payment shall be made within 5 days after the date that is six months following Employee's "separation from service" from the Company (within the meaning of Section 409A(a)(2)(B) of the Internal Revenue Code of 1986, as amended); and
(B) Pay to Employee a lump sum cash amount equal to $98,000 less tax and withholding and other deductions required by law, in respect of his fiscal year 2007 annual bonus, which amount is earned and payable as of the date hereof. Such payment shall be made within 10 days after the Effective Date; and
(C) Employer shall not contest any application by Employee for unemployment compensation insurance coverage, but Employer shall advise the appropriate governmental authority that Employee is receiving the benefits under Sections 4(A) and 4(B).
Employee acknowledges that the amount set forth in Section 4(A) above is in excess of the amount Employee is entitled pursuant to any employment arrangement with Employer. Employee acknowledges that nothing in this Agreement shall be deemed to be an admission of liability on the part of Company. Employee agrees that Employee will not seek anything further from Company, except as provided for in this Agreement.
5. Expenses and Unpaid Salary . Employer shall reimburse Employee for all outstanding reasonable out-of-pocket expenses incurred by Employee but not yet paid by Employer in connection with the performance of Employee’s duties at Employer’s request through the Separation Date in accordance with Employer’s expense reimbursement policy. In addition, Employer acknowledges that Employee shall be paid any and all accrued but unpaid base salary, through March 24, 2008, which shall be paid in accordance with the Company's regular payroll policies and systems.
6. Who is Bound . Employer and Employee are bound by this Agreement. Anyone who succeeds to Employee’s rights and responsibilities such as Employee’s heirs and the executors and administrators of Employee’s estat