Attached files
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| 8-K - DERMA SCIENCES, INC. | v179333_8k.htm |
EXHIBIT
10.01
SEPARATION
AND RELEASE AGREEMENT
This
SEPARATION AND RELEASE
AGREEMENT (the "Agreement') has been made and entered into as of the
31st
day of March, 2010 by and between DERMA SCIENCES, INC. and DERMA FIRST AID PRODUCTS, INC.,
both Pennsylvania corporations having their principal office at 214
Carnegie Center, Suite 300, Princeton, New Jersey 08540 (collectively the
"Employer"), and DANIEL
RIVEST, whose primary residence is _____________,________, Pennsylvania
_____ (the "Employee") (Employer and Employee collectively referred to as the
"Parties").
WITNESSETH:
WHEREAS, the Employee has been
employed by Derma Sciences as the Executive Vice President–First Aid Products
and by Derma First Aid as its President; and
WHEREAS, the Employer has
terminated Employee's employment with Employer; and
WHEREAS, the Parties desire to
set forth their respective rights and obligations in respect of Employee’s
separation of employment from Employer;
NOW, THEREFORE, in
consideration of the covenants and conditions set forth herein, the parties,
intending to be legally bound, agree as follows:
1. Employment
Status.
(a) Employee’s status as an
employee of Employer is hereby terminated effective March 31st, 2010 (the
"Separation Date").
(b) Provided and as such
time as this Agreement becomes effective pursuant to paragraph 8(b), Employer
and Employee agree to enter into the Consulting Agreement annexed as Exhibit A
hereto. If this Agreement does not become effective, then any consulting
services provided to Employer by Employee after the Separation Date shall be
paid for by Employer on a per diem basis based on Employee’s current base
salary.
2. Severance
Benefits. From and after the Separation Date, and provided
this Agreement becomes effective, Employee and Employer hereby agree to the
following severance benefits, subject to the terms and conditions of this
Agreement.
(a) Upon expiration of the
Consulting Agreement, Employer will pay Employee a total of an additional Ninety
Eight Thousand Dollars ($98,000) (less applicable withholdings for federal,
state and local taxes) payable in equal installments on regular payroll dates
during the six month period immediately following expiration of the
Consulting Agreement
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(b) Employee will receive a letter
regarding the terms of continuation of coverage under the Consolidated Omnibus
Budget Reconciliation Act of 1986 ("COBRA"), as set forth in section 4980B of
the Internal Revenue Code of 1986, as amended to
continue medical, dental and prescription drug coverages (collectively, the
"Medical Coverages") beyond the Separation Date. If Employee elects,
under COBRA, to continue the Medical Coverages, Employer agrees to pay the
premiums for such coverage through June 30th, 2010.
(c) Employee hereby acknowledges
and agrees that he is not entitled to any other compensation or benefits of any
kind or description from Employer, or from any affiliate of Employer, other than
as set forth in this Section 2.
3. Non-Disclosure.
(a) In
connection with the performance of Employee's duties for Employer, Employee has
or may have received, obtained or created confidential information with respect
to the business, products, customers, financial condition, salaries, or
personnel information (“Confidential Information”) of Employer or Employer’s
affiliates. Employee agrees that he will hold and treat such
Confidential Information in confidence and will not, directly or indirectly,
divulge, publish or otherwise disclose such Confidential Information to any
person, firm or corporation either prior to or after the Separation Date or use
such Confidential Information except for the benefit of Employer unless: (i)
such Confidential Information becomes generally available to the public other
than as a result of a disclosure by Employee (ii) Employee is legally required
to disclose any of such Confidential Information, but only after Employee shall
have provided the Employer with prompt notice of such requirement so that the
Employer may take appropriate action; or (iii) Employer shall expressly consent
to such disclosure in writing in advance.
(b) Employee further agrees
that he will not disclose the existence or terms of this Agreement to any party
other than his immediate family and confidential financial and legal
advisors. Employee agrees to inform those to whom he has made such
disclosures of the confidential nature of the Agreement and the terms hereof,
and instruct such persons that they are not to disclose the existence or terms
of the Agreement to anyone.
4. Employer Documents
Property.
(a) Employee hereby
represents, warrants, and confirms that he has returned (or will return promptly
upon expiration of the Consulting Agreement) to Employer all originals and
copies, whether in hardcopy or electronic format, of all Employer documents,
memoranda, data, files, correspondence, letters, notes, plans, reports, and all
books and manuals issued by Employer, relating to the Employer’s business
activities that Employee may have possessed, created or have had under his
control, except for Employer’s employee benefit plans and summary plan
descriptions, records relating to the accrual or payment of benefits under
Employer's employee benefit plans (e.g., benefit plan statements issued to
Employee), and records setting forth the amount of compensation the Employee
earned from Employee (e.g. check stubs and W-2 forms).
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(b) Employee hereby confirms
that he has returned (or will return promptly upon expiration of the Consulting
Agreement) to Employer any and all of Employer’s property in his possession,
including but not limited to computers and computer-related equipment including
any computer, software, cellular phone, credit card, security key card,
telephone card, car service card or voucher, and Employer identification
card.
5. Non-Disparagement. Employee
hereby agrees not to make, or cause to be made, any derogatory and/or untruthful
statements about the Employer, and its affiliates, parents and subsidiaries, and
their present and former directors, officers, employees, agents, attorneys,
successors and assigns (collectively, the "Protected Parties"), or the personnel
policies and practices of the Protected Parties, to any customers, competitors,
suppliers, employees, former employees or other persons (including but not
limited to the press or other media). Nothing in this Agreement is
intended to restrict Employee from testifying fully and truthfully in any action
or proceeding in which Employee has been subpoenaed to appear, provided that
Employee shall notify Employer immediately of the receipt of any such subpoena
so that Employer may have an opportunity to contest the same. Employer hereby
agrees not to make, or cause to be made, any derogatory and/or untruthful
statements about the Employee to any employees or prospective employers
(including but not limited to the press or other media). Nothing in
this Agreement is intended to restrict Employer from testifying fully and
truthfully in any action or proceeding in which Employer has been subpoenaed to
appear, provided that Employer shall notify Employee immediately of the receipt
of any such subpoena so that Employee may have an opportunity to contest the
same.
6. Mutual Release of
Claims.
(a) Employee hereby releases
and discharges the Protected Parties from any and all manner of actions and
causes of action, suits, debts, dues, accounts, bonds, covenants, contracts,
agreements, judgments, charges, claims and demands whatsoever which Employee,
his heirs, executors, administrators and assigns has, or may hereafter have
against the Protected Parties, or any of them, arising out of or by reason of
any cause, matter or thing whatsoever from the beginning of the world to the
date hereof, including without limitation any and all matters relating to his
employment by the Employer and the cessation thereof; his employee benefits; and
all matters arising under any federal, state or local statute, rule or
regulation or principle of contract law or common law, including but not limited
to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq., the Age
Discrimination in Employment Act, 29 U.S.C. § 621 et seq., the
Fair Labor Standards Act,. 29 U.S.C. § 201 et seq., the Employee
Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq., the
Reconstruction Era Civil Rights Act, 42 U.S.C. § 1981 et seq., the
Americans with Disabilities Act of 1993, 42 U.S.C. § 12900 et seq., the New
Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq., the
Conscientious Employee Protection Act, N.J.S.A. 34:19-1 et seq., and the New
Jersey Family Leave Act, N.J.S.A. 34:11B-1 et seq.
(b) Employee represents that
he has not filed any claims or causes of action of any kind against the Parties
protected with any local, state or federal agency, court or tribunal, nor does
he have any knowledge or reason to believe that anyone else has filed such a
charge or complaint on his behalf. If Employee should file such a
charge or complaint, or if any agency shall ever assume jurisdiction against the
Releases on behalf of Employee and/or commence any proceedings against the
Company, he will be bound by his waiver and general release herein and he will
not accept any benefit or remedy which may be awarded as a result of such
charge(s) or complaint(s).
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(c) Employer hereby releases
and discharges the Employee from any and all manner of actions and causes of
action, suits, debts, dues, accounts, bonds, covenants, contracts, agreements,
judgments, charges, claims and demands whatsoever (“Claims”) which Employer, its
successors and assigns has, or may hereafter have against the Employee, arising
out of or by reason of any cause, matter or thing whatsoever from the beginning
of the world to the date hereof, including without limitation any and all
matters arising out of or relating to the employment of the Employee by
Employer.
(d) Neither
party releases the other from any Claims arising out of or relating to this
Agreement or the Consulting Agreement arising after the date
hereof.
7. Employee
Covenants.
The
Employee agrees and covenants as follows:
(a) that the Employee will
not, until the expiration of the period commencing on the Separation Date and
ending on the date that is six (6) months after the Separation Date, engage,
either directly or indirectly on Employee’s own account or as agent,
stockholder, owner, employee, employer or otherwise, anywhere in the world, in a
business that is in any way competitive with the first aid product business
conducted by Employer.
(b) that the Employee shall
not, until the expiration of the period commencing on the Separation Date and
ending on the date that is one (1) year from the Separation Date, either
directly or indirectly for Employee’s own individual purposes or those of
another (i) directly or indirectly hire or employ any employee of the Employer
without regard to his/her location, or contact or approach, any such employee of
the Employer, for the purpose of attempting to or actually soliciting or hiring
that employee for Employee’s own account or for the account of another or (ii)
directly or indirectly contact or approach any of the current customers of the
First Aid Division with the purpose of soliciting sales of products that compete
with products offered by the First Aid Division.
(c) The Employee further
agrees that the covenants contained in paragraphs 7(a) and (b) are reasonable as
to geographic space, time and scope, protect the legitimate interests of the
Employer and present no undue hardship to the Employee. Employee
hereby waives any defenses which contest the reasonableness of the covenants
contained in paragraphs 7(a) and 7(b). If nonetheless a court of
competent jurisdiction believes under the circumstances that the covenants are
too broad, or unreasonable or unenforceable, in whole or in part, said court may
modify the covenants so that same are enforceable to the maximum extent
permissible by law.
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(d) It is the intent of the
parties that each of paragraphs 7(a) and (b) be a separate and distinct promise
and that unenforceability of any one paragraph shall have no effect on the
enforceability of the other.
(e) It is understood and
agreed by and between the parties hereto that the rights and privileges granted
to Employer by Employee under paragraphs 7(a) and (b) are of a special, unique
and extraordinary character, which gives them a peculiar value, the loss of
which cannot be reasonably or adequately compensated in damages in any action at
law, and that a breach by Employee of any of the provisions contained in this
Agreement will cause Employer great and irreparable injury and
damage. Employee hereby expressly agrees that Employer shall be
entitled to the remedies of injunction, specific performance and other equitable
relief to prevent a breach of this Agreement by Employee. This
provision shall not, however, be construed as a waiver of any of the rights
which Employer may have for damages or otherwise.
(f) Employee agrees to
perform services in accordance with the Consulting Agreement.
8. Effective
Date. This Agreement is valid only if signed by Employee on or
after Employee's Separation Date and received by Employer within thirty-one (31)
days of Employee's Separation Date.
(a) Employee acknowledges
that Employer has provided him with at least twenty–one (21) days from the date
upon which this Agreement is delivered to him within which to consider the terms
and effect of this Agreement. Employee voluntarily waives any right
he/she may have, prior to signing this Agreement, to additional time with which
to consider the Agreement. Employee represents that if he signs this Agreement
before the expiration of the twenty-one (21) day period, it is because he has
decided voluntarily that he does not need any additional time to decide whether
to sign the Agreement.
(b) Employee has seven days
following the date he signs the Agreement during which he may revoke the
Agreement by notifying the Employer in writing of such action. The
Agreement will not be effective until the eighth day following Employer’s
receipt of the Agreement signed by Employee, and no payments shall be due, owing
or paid by Employer unless and until this Agreement becomes
effective. Employee may revoke this Agreement by giving written
notice of such revocation to:
Derma
Sciences, Inc.
214 Carnegie Center
Suite 300
Princeton, New Jersey
08540
Attn: Human Resources
Department Head
ANY SUCH
REVOCATION SHALL BE DELIVERED BY OVERNIGHT MAIL AND MUST BE POSTMARKED WITHIN
THE REVOCATION PERIOD. If the seventh day falls on a Saturday or
Sunday or legal holiday in the state in which the Employee was employed at the
time of his last day of employment, then the revocation period shall not expire
until the next following day which is not a Saturday, Sunday or legal
holiday.
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9. General.
(a) This Agreement contains
the entire agreement and understanding of the parties with respect to the
subject matter hereof, and supersedes all prior agreements and understandings,
if any, with respect hereto and cannot be modified, amended, waived or
terminated, in whole or in part, except in writing signed by the party to be
charged.
(b) The covenants,
agreements, representations and warranties contained in or made pursuant to this
Agreement shall survive this Agreement.
(c) Employee agrees that any
breach of the obligations set forth in Sections 3, 4, 5, 7(a), 7(b)
and 7(f) shall be considered a material breach of this Agreement; provided that
with respect to Section 4, the breach shall only be considered material if
Employee refuses to return Employer property within three (3) days of a request
by Employer. Upon a breach of any of these provisions by Employee,
and due to the difficulties in calculating the damages that might be sustained
(directly or indirectly) as a result of such breach, Employee shall forfeit his
right to any and all benefits or payments to be provided pursuant to Section 2
of this Agreement. Employer may withhold any payments otherwise due
under this Agreement pending final adjudication of any such claim of material
breach.
(d) The headings used in
this Agreement are solely for the convenience of reference and shall not be
given any effect in the construction or interpretation of this
Agreement. This Agreement shall be construed without regard to any
presumption or any other rule requiring construction against the party causing
this Agreement to be drafted.
(e) EMPLOYEE AND EMPLOYER
WAIVE TRIAL BY JURY IN ANY LITIGATION IN ANY COURT WITH RESPECT TO, IN
CONNECTION WITH, OR ARISING OUT OF, THIS AGREEMENT OR THE VALIDITY, PROTECTION,
INTERPRETATION, OR ENFORCEMENT THEREOF.
(f) Employee agrees that if he ever
challenges the validity of this Agreement, Employee will return all money paid
to Employee pursuant to Section 2 by certified check delivered to the
Employer.
(g) Should any provision of
this Agreement be declared illegal or unenforceable by any court of competent
jurisdiction and cannot be modified to be enforceable, excluding the general
release language, such provision shall immediately become null and void, leaving
the remainder of this Agreement in full force and effect.
(h) This Agreement may be
executed in any number of counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
(i) This Agreement shall be
governed by the laws of the State of New Jersey without giving effect to
principles of conflicts of laws.
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EMPLOYEE
HEREBY ACKNOWLEDGES THAT, BEFORE ENTERING INTO THIS AGREEMENT, HE HAS RECEIVED A
REASONABLE PERIOD OF TIME WITHIN WHICH TO CONSIDER ALL OF THE PROVISIONS
CONTAINED IN THIS AGREEMENT, THAT HE HAS FULLY READ AND UNDERSTANDS ALL OF THE
TERMS, CONTENTS, CONDITIONS AND EFFECTS OF ALL PROVISIONS OF THIS AGREEMENT,
THAT NO PROVISION OR REPRESENTATION OF ANY KIND HAS BEEN MADE, EXCEPT THOSE
EXPRESSLY STATED IN THIS AGREEMENT, AND THAT HE ENTERS INTO THIS AGREEMENT
KNOWINGLY AND VOLUNTARILY. EMPLOYEE FURTHER ACKNOWLEDGES THAT HE HAS
BEEN ENCOURAGED TO CONSULT WITH AN ATTORNEY OF HIS OWN CHOOSING CONCERNING ALL
OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THE EMPLOYEE’S SEPARATION FROM
EMPLOYER PRIOR TO EXECUTING THIS AGREEMENT.
[SIGNATURES
ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, the
parties hereto have executed this Agreement as of the date first appearing
above.
| DERMA SCIENCES, INC. | |||
|
By:
|
/s/ Edward J. Quilty | ||
| Name: Edward J. Quilty | |||
|
Title:
President and CEO
|
|||
| DERMA FIRST AID PRODUCTS, INC. | |||
|
By:
|
/s/ Edward J. Quilty | ||
|
Name:
Edward J. Quilty
|
|||
| Title: President and CEO | |||
| /s/ Daniel Rivest | |||
| Daniel Rivest | |||
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EXHIBIT
A
CONSULTING
AGREEMENT
THIS CONSULTING AGREEMENT
(this “Agreement”) is made as of the 31st day of March, 2010 by and between
DANIEL RIVEST (the
“Consultant”), and DERMA
SCIENCES, INC. and DERMA
FIRST AID PRODUCTS, INC., both Pennsylvania corporations having their
principal office at 214 Carnegie Center, Suite 300, Princeton, New Jersey
08540 (collectively, the “Company”).
RECITALS:
WHEREAS, pursuant to a
Separation and Release Agreement dated March 31st, 2010 (the “Separation
Agreement”), the Company desires to retain the Consultant to render consulting
services to the Company with regard to assisting the Company’s executive
management team with a smooth transition of his responsibilities within the
Company’s First Aid division and the Consultant wishes to render such services,
all as provided below.
NOW, THEREFORE, in
consideration of the premises and the mutual agreements contained in this
Agreement, and of other consideration (the receipt and sufficiency of which are
acknowledged by each party), the parties agree as follows:
ARTICLE
1
CONSULTING
SERVICES
1.1 Consulting
Services
(a) The
Company hereby retains the Consultant as an independent contractor and the
Consultant hereby agrees to be retained in such capacity and perform certain
services for the Company, to promote the interests of the Company.
(b) The
term of this Agreement shall be from March 31, 2010 to June 30, 2010 (the
“Term”). During the Term, the Consultant shall report to the
Company’s office on a regular basis or otherwise perform services for the
Company for at least 25 hours per week and during such time provide the Company
with advice as is reasonably requested by the Company, including but not limited
to cooperating with and assisting the Company’s executive management team with a
smooth transition of his responsibilities within the Company’s First Aid
division.
(c) The
Consultant shall follow the direction of and report to the Chief Executive
Officer of Derma Sciences, Inc., Edward J. Quilty.
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1.2 Compensation
(a)
In consideration for the services to be rendered by the Consultant to the
Company pursuant to this Agreement, the Company shall pay to the Consultant for
the Term the sum of Forty Nine Thousand Dollars ($49,000), less any amounts
earned by and paid to Consultant during the period between the Separation Date
and the Effective Date of the Separation Agreement, payable in equal
installments on the Company’s regular payroll dates during the
Term.
(b) Consultant acknowledges that as an
independent contractor he will be responsible for and will pay all applicable
federal, state and local taxes with respect to the consulting payments made
hereunder.
(c) Consultant will also be
reimbursed for reasonable and necessary business expenses incurred in performing
the services in accordance with the Company’s usual policies and
procedures.
1.3 Benefits
During the Term, Consultant shall not
be entitled to any Company benefits; provided, however, that the Company agrees
to pay the COBRA premiums for Consultant’s Medical Coverages as set forth in
Section 2 of the Separation Agreement.
ARTICLE
2
GENERAL
|
2.1
|
Interpretation
and Enforcement
|
(a) The
benefits of this Agreement shall inure to the parties hereto, their respective
successors and assigns and to the indemnified parties hereunder and their
respective successors and assigns and representatives, and the obligations and
liabilities assumed in this Agreement by the parties hereto shall be binding
upon their respective successors and assigns.
(b) If
it is found in a final judgment by a court of competent jurisdiction (not
subject to further appeal) that any term or provision hereof is invalid or
unenforceable, (i) the remaining terms and provisions hereof shall be unimpaired
and shall remain in full force and effect and (ii) the invalid or unenforceable
provision or term shall be replaced by a term or provision that is valid and
enforceable and that comes closest to expressing the intention of such invalid
or unenforceable term or provision.
(c) This
Agreement embodies the entire agreement and understanding of the parties hereto
and supersedes any and all prior agreements, arrangements and understanding
relating to the matters provided for herein. No alteration, waiver,
amendment, change or supplement hereto shall be binding or effective unless the
same is set forth in writing signed by a duly authorized representative of each
party.
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(d) This
Agreement does not create, and shall not be construed as creating, rights
enforceable by any person or entity not a party hereto, except those entitled
thereto by virtue of the indemnification provisions hereof. The
Company acknowledges and agrees that with respect to the services to be rendered
by the Consultant, the Consultant is not and shall not be construed as a
fiduciary of the Company and shall have no duties or liabilities to the equity
holders or creditors of the Company or any other person by virtue of this
Agreement and the retention of the Consultant hereunder, all of which are hereby
expressly waived. The Company also agrees that the Consultant shall
not have any liability (including without limitation, liability for losses,
claims, damages, obligations, penalties, judgments, awards, liabilities, costs,
expenses or disbursements resulting from any act or omission of the Consultant,
whether direct or indirect, in contract, tort or otherwise) to the Company or to
any person (including, without limitation, equity holders and creditors of the
Company) claiming through the Company for or in connection with the engagement
of the Consultant, this Agreement and the transactions contemplated hereby,
except for liabilities which arise as a result of the gross negligence or
willful misconduct of Consultant. The Company acknowledges that the
Consultant was induced to enter into this Agreement by, inter alia, the provisions of
this Section.
2.2 Applicable
Law
The
validity and interpretation of this Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of New Jersey
applicable to agreements made and to be fully performed therein (excluding such
state’s conflicts of laws rules).
2.3 Counterparts
This
Agreement may be executed in any number of counterparts. Each
executed counterpart shall be deemed to be an original. All executed
counterparts taken together shall constitute one Agreement.
IN WITNESS OF their agreement,
the parties have duly executed this Agreement as of the date first written
above.
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|
DERMA
SCIENCES, INC.
|
|||
|
|
By:
|
||
| Name: | |||
| Title: | |||
|
DERMA
FIRST AID PRODUCTS, INC.
|
|||
|
By:
|
|||
| Name: | |||
| Title: | |||
| DANIEL RIVEST | |||
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