SEPARATION
AND GENERAL RELEASE AGREEMENT
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This Separation and General Release Agreement must be executed and
returned to Employer in care of Employer's counsel (David M.
Wissert, Lowenstein Sandler, PC, 65 Livingston Avenue, Roseland,
New Jersey 07068; fax 973.597.2561; e-mail:
dwissert@lowenstein.com) on or before April 14, 2008, but not prior
to the Separation Date .
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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
