Exhibit 10.43
TRANSITION
AGREEMENT
This Transition Agreement (this
“ Agreement ”), is made by and between Gregory
J. Mossinghoff, an individual (“ Mr. Mossinghoff
”), and Inspire Pharmaceuticals, Inc. (“ Inspire
”) (Mr. Mossinghoff and Inspire to be hereinafter referred to
individually as a “ Party ” and collectively as
the “ Parties ”).
BACKGROUND
WHEREAS, Mr. Mossinghoff has been
employed by Inspire since June 1998 in various capacities and
currently holds the position of President of Inspire, employed
“at will” and subject to termination at any time and
for any reason, with or without notice or cause;
WHEREAS, the Parties acknowledge
that Mr. Mossinghoff has submitted a letter of resignation (“
Letter of Resignation ”) stating that he wishes to
separate from employment with Inspire effective as of June 30,
2005; and
WHEREAS, Inspire wishes to change
Mr. Mossinghoff’s “at-will” employment status and
guarantee him employment for a period which may be terminated by
Inspire only “for cause”, commencing upon the “
Effective Date ” defined within this Agreement and
ending on June 30, 2005 (the “ Transition Period
”); and
WHEREAS, the Parties wish to confirm
the exclusive terms of this Agreement.
NOW, THEREFORE, in consideration of
the mutual commitments set forth in this Agreement, inclusive of
Mr. Mossinghoff’s change of “at-will” status and
guarantee of employment during the Transition Period, and intending
to be legally and forever bound, Inspire and Mr. Mossinghoff agree
as follows:
TERMS
1. Definitions .
(a) The term “ Stock
Options ”, shall mean the outstanding stock options
issued to Mr. Mossinghoff by Inspire pursuant to the Stock Plan (as
hereinafter defined) and listed on the attached “
Schedule A ”.
(b) The term “ Stock
Plan ” shall mean Inspire’s Amended and Restated
1995 Stock Plan, as amended.
(c) The term “ Execution
Date ”, as used throughout this Agreement, shall mean the
date Mr. Mossinghoff executed this Agreement, as set forth below
under Mr. Mossinghoff’s signature on the final page of this
Agreement.
(d) The term “ Effective
Date ” shall have the meaning assigned to such term in
Paragraph 4(c) of this Agreement.
(e) All other capitalized or bolded
terms shall have the meanings assigned to such terms within the
text of this Agreement.
2. Benefits to be Conferred upon
Mr. Mossinghoff in Consideration of this Agreement .
(a) In exchange for and in
consideration of Mr. Mossinghoff’s promises, covenants and
general release stated herein, Inspire agrees to employ Mr.
Mossinghoff in the capacity of President from the Effective Date
through and including June 30, 2005 (defined herein as the “
Transition Period ”), under the following
conditions:
(i) In the capacity of President,
Mr. Mossinghoff shall diligently perform such duties and
obligations in such manner and at such location(s) as may be
reasonably assigned to Mr. Mossinghoff from time to time by the
Chief Executive Officer of Inspire.
(ii) During the Transition Period,
Inspire agrees to compensate Mr. Mossinghoff at his current base
salary rate, payable in accordance with Inspire’s customary
payroll schedule, at all times during Mr. Mossinghoff’s
continued employment with Inspire.
(iii) At all times during his
continued employment with Inspire, Mr. Mossinghoff shall be covered
by such major medical, health benefit, disability insurance
benefit, 401(k), and pension plans made available generally by
Inspire to its employees. Further, during his continued employment
with Inspire throughout the Transition Period, Mr. Mossinghoff will
be provided such other employee benefits as are made available
generally by Inspire to its employees, except for any bonus
payments which would be paid under any policy or practice of
Inspire. Mr. Mossinghoff shall also be reimbursed by Inspire, in
accordance with its discretionary policies, which may be changed
from time to time, for ordinary and reasonable business expenses
that are approved by the Chief Executive Officer of Inspire in
advance.
(iv) Mr. Mossinghoff’s
employment with Inspire during the Transition Period shall be
changed from that of an “at-will” employee and,
pursuant to this Agreement, may be terminated by Inspire’s
Board of Directors “for cause” only, which shall mean
exclusively: (A) Mr. Mossinghoff’s conviction from which no
further appeals may be taken for, or plea of nolo contendere to, a
felony or a crime involving moral turpitude, (B) Mr.
Mossinghoff’s commission of a breach of fiduciary duty
involving personal profit in connection with his employment by
Inspire, (C) Mr. Mossinghoff’s commission of an act which the
Board of Directors of the Company shall reasonably have found to
have involved willful and material misconduct on the part of Mr.
Mossinghoff in the conduct of his duties hereunder, (D) chronic
alcoholism or any other form of addiction on the part of Mr.
Mossinghoff that impairs his ability to perform the essential
functions of his job, provided that such termination shall be made
in accordance with any applicable laws, inclusive of the Americans
with Disabilities Act of 1990, 42 U.S.C. §12101, et.
seq. , or (E)
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Mr. Mossinghoff’s material breach of any
material provision of this Agreement which remains uncured for a
period of ten (10) days following notice by Inspire. With respect
to the matters set forth in subsections (C), (D) and (E) hereof,
the Board of Directors of Inspire may not terminate Mr.
Mossinghoff’s employment unless Mr. Mossinghoff has first
been given notice of the conduct forming the cause for such
termination and an opportunity to explain such conduct to the Board
of Directors or a committee thereof.
(b) In further consideration of this
Agreement, and presuming that Mr. Mossinghoff has faithfully
executed the duties and obligations of his employment with Inspire
and continued in Inspire’s employment through the expiration
of the Transition Period, Inspire agrees to present and offer to
Mr. Mossinghoff, on or about June 30, 2005 or at such time as his
employment with Inspire ends, a Separation Agreement and General
Release (which shall include an offer of a severance payment in the
gross amount of five thousand dollars ($5,000)) for Mr.
Mossinghoff’s consideration, acceptance and execution
thereafter in accordance with its terms, which Separation Agreement
and General Release shall contain release of claim language that is
substantially similar to the release of claim language contained in
this Agreement.
(c) In further consideration of this
Agreement, Inspire also agrees that in the event Mr. Mossinghoff
dies or becomes legally incompetent prior to the expiration of the
Transition Period (June 30, 2005), Inspire will offer to Mr.
Mossinghoff’s estate, legal guardian or representative, for
consideration, acceptance and execution thereafter in accordance
with its terms, an agreement to provide the major medical and
health benefits to Mr. Mossinghoff’s dependents as are made
available generally by Inspire to the dependents of its employees.
In exchange for the aforementioned benefits, the agreement offered
to Mr. Mossinghoff’s estate, legal guardian or representative
will include (and receipt of the medical and health benefits will
be contingent upon) the execution of a release of claims by Mr.
Mossinghoff’s estate substantially similar to that contained
in Paragraph 3 of this Agreement.
(d) In the event Mr. Mossinghoff
accelerates his resignation or otherwise voluntarily leaves
Inspire’s employment prior to June 30, 2005, payment of
compensation to Mr. Mossinghoff shall cease effective as of the
date of any such separation. All other benefits, to the extent not
explicitly addressed within this Agreement, shall be paid in
accordance with Inspire’s discretionary practices.
3. General Release of
Claims
(a) Through his execution of this
Agreement, Mr. Mossinghoff, for full and adequate consideration as
recited above, and on behalf of himself, his spouse, dependents,
heirs, estate, executors, family members, successors, assigns,
administrators, agents and representatives, hereby unconditionally
releases and forever discharges Inspire, and their present and
former successors and assigns, affiliates, parents, members,
subsidiaries, partnerships, divisions and related persons or
entities, as well as the present and former officers, directors,
members, owners, shareholders, principals, partners,
consultants,
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in-house and outside attorneys, insurance
carriers, agents and employees of all of these persons or entities,
individually and in their official capacities, and any of their
pension, retirement, 401(k), stock ownership, stock appreciation,
stock option, profit sharing plans, the Stock Plan, and any other
employee benefits plans as well as the administrators, trustees,
fiduciaries, employees, attorneys, insurance carriers, agents and
parties-in-interest of any such plans, whether formerly or
presently sponsored or maintained by any of the above-described
Persons or entities (each of the foregoing a “ Released
Party ”, and hereinafter collectively referred to as the
“ Released Parties ”), from all of the following
claims, prayers for relief, causes of action or alleged damages and
all obligations or duties, whether real or perceived, fixed or
contingent, accrued or unaccrued, which arose or existed on or
before the Effective Date:
(i) any and all claims, issues,
prayers for relief and any other causes of action including, but
not limited to, all claims relating to common law tort, harassment,
retaliation, promissory or equitable estoppel, negligence, wrongful
or constructive discharge, defamation, tortious interference with
economic advantage, negligent or intentional infliction of
emotional distress, invasion of privacy, breach of any express or
implied agreement, contract, policy or other understanding, breach
of any covenant of good faith and fair dealing, breach of public
policy, loss of consortium, fraud, battery, assault, medical,
physical, emotional and psychological injuries or damages,
including all claims for attorneys’ fees and costs;
and
(ii) any and all claims, issues,
prayers for relief, causes of action or damages Mr. Mossinghoff has
or may ever have against any Released Party, including all claims
whether known or unknown, which Mr. Mossinghoff has or could claim
on or before the Effective Date. This release includes, without
limitation, all claims arising during Mr. Mossinghoff’s
employment or as a result of his resignation and all claims arising
under federal, state, or local laws prohibiting employment
discrimination based upon age, race, sex, religion, handicap,
national origin, or any other protected characteristic, including,
but not limited to, the Equal Pay Act of 1963, 29 U.S.C.
§206(d) (the “EPA”), Title VII of The Civil Rights
Act of 1964, as amended, 42 U.S.C. §2000e, et seq. ,
(“Title VII”), the Family and Medical Leave Act of
1993, 29 U.S.C. §2611, et seq. , the Older Workers
Benefit Protection Act, 29 U.S.C. § 626(f), et seq.
(the “OWBPA”), the Age Discrimination in Employment Act
of 1967, as amended, 42 U.S.C. §621, et seq. (the
“ADEA”), the Employee Retirement Income Security Act of
1974, 29 U.S.C. §1001, et. seq. (“ERISA”),
the Rehabilitation Act of 1973, 29 U.S.C. §701, et. seq
., the Fair Labor Standards Act, 29 U.S.C. §215(a)(3), et.
seq. (“FLSA”), the Americans with Disabilities Act
of 1990, 42 U.S.C. §12101, et. seq. (the
“ADA”), the Civil Rights Act of 1990, 42 U.S.C.
§§1981, 1983, 1985 and 1988, the North Carolina Equal
Employment Practices Act, N.C. Gen. Stat. §§143-422.2
(1988), the United States Constitution, North Carolina’s
State Constitution, North Carolina’s Wage and Hour and Wage
Payment Laws, N.C. Gen. Stat. §§95-25.20, 241,
§95-252, §95-243, §95-25.7,
§§95-25.7-25.13 (1997), §95-25.2(16) (1988), et
seq. , and the Worker Adjustment and Retraining Notification
Act, 29 U.S.C. §2101, et seq.
(“WARN”).
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(iii) any and all claims, issues,
prayers for relief or causes of action relating to any form of
employee benefit or employment benefit plan, understanding or
agreement, including but not limited to medical, accident, dental,
pension, retirement, stock, stock appreciation, the Stock Options,
incentive, severance, salary continuation, deferred compensation,
short term or long term disability, l
