EXHIBIT 10.9.15
SEPARATION AND RELEASE AGREEMENT
This Separation and Release Agreement
(“Agreement”) is made by and between PAR
PHARMACEUTICAL COMPANIES, INC . and each and any of its parent
and subsidiary corporations, affiliates, departments, divisions,
and/or joint ventures (“THE COMPANY”) and DENNIS
O’CONNOR (“EMPLOYEE”), a specified employee
of THE COMPANY. The Effective Date of this Agreement shall be as
set forth in Paragraph 9 herein.
For and in consideration of the
mutual promises and covenants in this Agreement, and for other good
and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties agree as follows:
1.
Separation of Employment . THE COMPANY and EMPLOYEE agree
that EMPLOYEE shall separate from THE COMPANY effective at the end
of business on September 29, 2006 (“Separation
Date”).
2.
Separation Pay . THE COMPANY agrees to pay EMPLOYEE six
hundred one thousand seven hundred eighty eight dollars
($601,788.00) at the regular payroll cycles, over a period of
eighteen (18) months, with the first payment occurring in the
seventh month after the Separation Date and continuing for
seventeen (17) months thereafter. The aforementioned payments
shall be subject to all appropriate federal and state withholding
and employment taxes. EMPLOYEE hereby agrees that he is entitled to
no other payment from COMPANY as the result of his separation or
during the aforementioned period.
As the above-referenced payments will
constitute deferred compensation payable to EMPLOYEE, which will be
subject to the applicable provisions of Section 409A of the
Internal Revenue Code, EMPLOYEE and THE COMPANY agree that no
change in the timing of such payments shall be permitted by either
EMPLOYEE or THE COMPANY once the payments commence.
3.
Benefits/Termination THE COMPANY shall, for a two
(2) year period from the Separation Date, maintain in effect
for EMPLOYEE coverage under THE COMPANY’S group life
insurance and medical plans in which EMPLOYEE currently
participates (subject to changes in such plans or coverage that are
generally applicable to other employees and to the requirements of
such plans and applicable law), with the employee portion to be
deducted from EMPLOYEE’S continued base salary payments.
Thereafter, EMPLOYEE will have the opportunity to elect
continuation coverage pursuant to COBRA and will thus be
responsible for the execution of the COBRA continuation of coverage
forms. All other benefits, except those in which EMPLOYEE has
vested rights under the terms of an employee benefit plan,
terminate as of EMPLOYEE’s Separation Date.
4.
Stock Options .
a.
Common Stock . EMPLOYEE agrees that certain options to
purchase shares of common stock of THE COMPANY granted to EMPLOYEE
before the Separation Date shall be cancelled, as of the Effective
Date, as follows:
1
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(1) |
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6,250 Shares granted August 29, 2002 |
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(2) |
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15,000 Shares granted October 10, 2003 |
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(3) |
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32,500 Shares granted January 20, 2004 |
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(4) |
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16,613 Shares granted January 6, 2005 |
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(5) |
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7,005 Shares granted January 9, 2006 |
b.
Restricted Stock . EMPLOYEE further agrees that all shares
of restricted stock of THE COMPANY granted to EMPLOYEE before the
Separation Date shall be cancelled, as of the Effective Date, as
follows:
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(1) |
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10,970 Restricted Shares granted January 6, 2005 |
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(2) |
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14,049 Restricted Shares granted January 9, 2006 |
c.
Previously Vested Stock Options. With the exception of those
cancelled options identified in Paragraphs 4a and 4b above,
EMPLOYEE shall have twenty four (24) months from the Effective
Date of this Agreement to redeem previously vested stock options
with THE COMPANY or its designee pursuant to the Stock Option Plan
governing the options at issue. Payment to EMPLOYEE shall be made
in the ordinary course.
5.
Non-Solicitation . THE COMPANY agrees that as of the
Effective Date there shall be no restrictions placed on EMPLOYEE
relative to solicitation of any employee, agent, lessor, lessee,
licensor, licensee, customer, prospective customer or supplier or
prospective supplier of THE COMPANY, except for those
confidentiality obligations set forth herein at Paragraph 11
and imposed by common law.
6.
Sufficiency of Consideration/ No Admission of Liability .
The parties agree that the consideration provided to EMPLOYEE is
good and sufficient consideration for this Agreement. EMPLOYEE
acknowledges that neither this Agreement, nor any consideration
contemplated within this Agreement, shall be taken or construed to
be an admission or concession of any kind with respect to any
liability or alleged wrongdoing by THE COMPANY.
7.
General Release and Waiver of Claims . EMPLOYEE, in
consideration of the promises and covenants made by THE COMPANY in
this Agreement, 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 Agreement. Such 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. EMPLOYEE specifically
agrees to release and waive all claims for wrongful termination and
any claim for retaliation or discrimination in employment under
federal or state law or regulation
2
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 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 Family Medical Leave Act (“FMLA”), the
New Jersey Law Against Discrimination (LAD), the New Jersey
Conscientious Employee Protection Act (CEPA), the New Jersey Family
Leave Act (“NJFLA”), the New Jersey Wage and Hour and
Wage Payment laws, the New York State Human Rights Law, the New
York Executive Law, the New York Wage and Hour Laws, and/or any
other federal, state, or local law (statutory or decisional),
regulation, or ordinance, up to and including the Effective Date of
this Agreement.
8.
Covenant Not to Sue . 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. EMPLOYEE agrees, not inconsistent with EEOC
Enforcement Guidance or Non-Waivable Employee Rights Under
EEOC-Enforced Statutes dated April 11, 1997, and to the fullest
extent permitted by laws, 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 Agreement, 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 Agreement. Provided, nothing in this Agreement
shall prevent EMPLOYEE from (i) commencing an action or
proceeding to enforce this Agreement, 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 Agreement.
9.
Consideration and Revocation Periods: Effective Date .
EMPLOYEE also understands and acknowledges
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