Exhibit 10.42
SEPARATION AND CONSULTING AGREEMENT
This Separation and Consulting Agreement ("Agreement") is entered into as
of April 15, 2003, by and among Columbia Laboratories, Inc., a Delaware
corporation having a principal place of business at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
Second Floor - Plaza I, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Company"), ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Consulting, a company organized under the laws of Ireland and having offices at
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇.▇.▇. ▇▇▇▇▇ ("Consultant"), and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ("Executive"), residing at Titmore Green, Little Wymondly,
Hitchen Herts, U.K., who agree as follows:
WHEREAS, Executive has been employed as Chief Science Officer of the
Company and now desires to resign;
WHEREAS, following his resignation, the Company desires to retain the
services of Consultant, of which Executive is a principal owner, as a consultant
to the Company;
WHEREAS, Executive is a principal equity holder of Consultant; and
WHEREAS, Executive agrees to resign his employment with the Company and to
cause Consultant to enter into a consulting relationship with the Company, and
Consultant agrees to enter into such consulting relationship, pursuant to the
terms of this Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. Resignation Effective as of the date first above written (the
"Resignation Date"), Executive hereby voluntarily resigns his position as Chief
Science Officer of the Company and all of his positions as an officer and/or
director with the Company's subsidiaries, Columbia Laboratories (Bermuda) Ltd.,
Columbia Laboratories (France) SA, Columbia Laboratories (UK) Limited, and
Columbia Research Laboratories, Inc., and will cease to have any executive,
operational or managerial duties with the Company and its subsidiaries. The
Executive further agrees not to accept nomination as a director of the Company
or stand for re-election as a director at the annual meeting of the Company to
be held on May 15, 2003. The Company hereby accepts Executive's resignation,
effective as of the Resignation Date.
2. Compensation Upon Resignation and Consulting Compensation and Benefits
(a) The Company will pay Executive all compensation due Executive for his
services as an employee and officer through the Resignation Date.
(b) The Company will provide Executive, at the Company's sole expense,
through and including December 31, 2006, with group hospitalization, health, and
dental care benefits equivalent to the benefits that Executive received from the
Company on the Resignation Date, and life insurance in the face amount of
US$150,000, which is equivalent to the life insurance benefit that Executive
received from the Company on the Resignation Date. Executive acknowledges that
group hospitalization, health, and dental care benefits are available only for
services performed within the United States. If, for any reason, the Company is
not able to maintain any such plan or other benefit or provide benefits
equivalent to those provided to
Executive during his employment, the Company shall reimburse Executive for his
full cost of purchasing equivalent benefits. For the avoidance of doubt, all
such benefits that Executive will continue to be entitled to receive are set
forth on Schedule 2(b) attached hereto.
(c) Commencing as of the business day following the Resignation Date and
lasting for a period ending on October 15, 2004 (the "Consulting Term"), the
Company hereby retains Consultant to act as consultant. So long as Executive has
not died or been disabled, unless otherwise consented in each case in advance by
the Company, the services to be provided by Consultant pursuant to this
Agreement shall be provided exclusively by the Executive. During the Consulting
Term, Consultant will report to, and will cause the Executive to report to, the
Chief Executive Officer of the Company and provide advice and assistance to the
Company as requested on matters relating to Company Technology (as defined in
Section 8(a)). Consultant shall cause Executive and Executive agrees to make
himself available for such services at mutually convenient times and places upon
notice (not less than five (5) business days' notice if his physical presence is
required) from the Company's Chief Executive Officer or his/her authorized
designee. Notwithstanding the foregoing, the Consultant shall not, during any
month, be required to cause the Executive to devote, and Executive shall not be
required to devote, more than 25% of his business time to the affairs of the
Company.
(d) The Company shall pay Consultant a fee for ongoing consulting services
at the rate of five thousand dollars (US$25,000.00) per month during the
Consulting Term. Payment of such fee shall be made monthly, in arrears, subject
to any withholdings required by applicable law. It is understood that Consultant
will perform services at the request of the Company, so such fee is payable
regardless of the extent to which the Company requests consulting services
during any particular month during the Consulting Term.
(e) The Company will reimburse Consultant for all actual, documented, and
reasonable out-of-pocket expenses necessarily incurred in providing the services
of Executive under this Agreement as requested by the Company and, in the case
of international travel, approved in writing in advance by the Chief Executive
Officer of the Company.
(f) Because of Consultant's status as an independent contractor, neither
Consultant nor Executive shall be entitled to any payments from the Company
related to employment rights, pension or welfare benefits (other than as
provided in subsection (b) pertaining to continuing benefits above) in
connection with its services as a Consultant hereunder or Executive's services
performed on behalf of Consultant, or to any reimbursement for such benefits as
Consultant shall provide to Executive.
(g) This Agreement shall not constitute or establish an agency, joint
venture, partnership or employment relationship between the parties. Consultant
(and Executive when acting on behalf of Consultant) will perform the consulting
services for the Company under this Agreement as independent contractors. As
independent contractors, neither Consultant nor Executive shall have power or
authority to act for, represent or bind the Company in any manner, and Executive
agrees not to represent himself to be an employee of the Company.
(h) Unless withholding by the Company is required by any applicable law,
Consultant shall be solely responsible for the reporting and payment of any
contributions, taxes (including
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self-employment taxes) or other assessments imposed upon the compensation for
consulting services rendered under this Agreement, including, without
limitation, the withholding of every tax, impost, governmental charge or other
payment, including without limitation, interest and penalties (collectively
"taxes") required to be paid by or on behalf of Executive or Consultant in any
country and under any applicable national state or other local law. Unless
withholding by the Company is required by any applicable law, the Company will
not make withholdings with respect to any such taxes for amounts to be paid
pursuant to this Section 2. Consultant and Executive agree to indemnify fully
and hold the Company harmless from any and all claims made against the Company
as a result of Consultant's or Executive's failure to make any such withholdings
or pay any such taxes, and all related costs and expenses (including any and all
reasonable attorneys' fees and costs of investigation, litigation, settlement
and judgment).
3. Repayment of Loan
(a) Executive hereby affirms and agrees that during 1993 the Company loaned
Executive $110,350, under notes that bear interest at 10% per annum, are
unsecured but with full recourse, and are in default, and Executive further
agrees that at March 30, 2003, the total outstanding balance on the notes,
including principal and interest, was US$213,881. On or before June 30, 2003
(the date of payment being referred to as the "Payment Date"), Executive shall
repay the entire principal amount of such Loan and all interest accrued thereon
through the Payment Date (the "Loan Amount") by any of the following means: (a)
by tendering the entire Loan Amount in cash; (b) by tendering a portion of the
Loan Amount in cash and the balance in common stock of the Company; or (c) by
tendering the entire Loan Amount in common stock of the Company. If all or any
portion of the Loan Amount is tendered in common stock, the number of shares
required to be tendered shall be equal to (x) the portion of the Loan Amount to
be paid in common stock, divided by (y) the average closing price of the common
stock on the American Stock Exchange as of the ten (10) trading days immediately
preceding the date on which the Loan Amount is paid.
(b) Payment of the Loan Amount shall be made on the Payment Date by bank
wire transfer to an account of the Company of which Executive has received
separate written notice for such amount, if any, as is repaid in cash, and by a
tender of certificates for the requisite number of shares of common stock (with
attached stock powers pertaining to the number of shares being tendered) duly
endorsed to the Company, with appropriate signature guarantees, at the principal
offices of the Company. If certificates for a number of shares exceeding the
number to be transferred to the Company are delivered, the Company shall
promptly deliver a balance certificate to the Executive.
(c) If, and solely if, Executive fails to pay the entire Loan Amount on or
before June 30, 2003, the Company shall be entitled immediately to set off
against, and pay from, any and all fees and other amounts then due or thereafter
to become due to Consultant or Executive pursuant to this Agreement the amount
of the Loan Amount that has not been paid.
4. Representations and Warranties
(a) By the Consultant and the Executive: Consultant and Executive represent
and warrant that each is free to enter into this Agreement, that neither of them
has made, prior to the
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Consulting Term, and that neither of them will hereafter make, any agreements
that would be in conflict with this Agreement, without first obtaining the
Company's written approval, which may be granted or denied in the sole
discretion of the Company. During the Consulting Term, Consultant and Executive
will disclose to the Company the general nature of any other employment or
consulting engagement prior to accepting such employment or consulting
engagement. The foregoing shall not be interpreted to limit the covenants set
forth in Section 8 in any way.
(b) By the Company: The Company represents and warrants that all necessary
corporate action has been taken to authorize the execution, delivery and full
and complete performance of the Agreement.
5. Releases of Claims
(a) As a condition of the Company's willingness to enter into this
Agreement and to engage Consultant as a consultant hereunder (which engagement
would not be required in the absence of this Agreement), and in consideration
for the agreements of the Company contained in this Agreement, Executive, with
the intention of binding himself, Consultant, his heirs, beneficiaries,
trustees, administrators, executors, assigns and legal representatives
(collectively, hereinafter, the "Executive Releasors") hereby releases and
forever discharges (i) the Company; (ii) all parent, affiliated and subsidiary
entities of the Company and all of its or their successors or assigns, and (iii)
all of its or their current, former and future officers, directors,
shareholders, employees, agents, attorneys, independent contractors, and legal
representatives (whether acting as agents for the Company or in individual
capacities (collectively, hereinafter, the "Company Releasees") from, and hereby
acknowledges full accord and satisfaction of, any and all claims, demands,
causes of action, and liabilities of any kind whatsoever (upon any legal or
equitable theory, whether contractual, at common law, statutory, under federal,
state or local law of the United States or any other jurisdiction, or
otherwise), whether known or unknown, asserted or unasserted, by reason of any
act, omission, transaction, agreement or occurrence that the Executive Releasors
ever had, now have or hereafter may have against the Company Releasees up to and
including the date of the execution of this Agreement. Without limiting the
generality of the foregoing, the Executive Releasors hereby release and forever
discharge the Company Releasees from:
(i) any and all claims relating to or arising from Executive's
employment with the Company, the terms and conditions of such employment, and
the termination of such employment;
(ii) any and all claims of employment discrimination under any
federal, state or local statute or ordinance, public policy or the common law,
including, without limitation, any and all claims under Title VII of the Civil
Rights Act of 1964, the Civil Rights Act of 1991, the Civil Rights Act of 1866,
the Employee Retirement Income Security Act, the Age Discrimination in
Employment Act, as amended by the Older Workers Benefit Protection Act, the
Americans with Disabilities Act, the Family and Medical Leave Act, the Equal Pay
Act, the Rehabilitation Act of 1973, the New York State Executive Law, the New
York City Administrative Code, the New Jersey Law Against Discrimination, the
New Jersey
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Conscientious Employee Protection Act, the New Jersey Equal Pay Act, and the New
Jersey Family Leave Act, as such laws have been or may be amended;
(iii) any and all claims under federal or state securities laws and
regulations, including, without limitation, the Securities Act of 1933, as
amended, the Securities Exchange Act of 1934, as amended, and the ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act of 2002;
(iv) any and all claims for slander, libel, defamation, negligent or
intentional infliction of emotional distress, prima facie tort, invasion of
privacy, negligence, compensatory or punitive damages, or any other claim for
damages or injury of any kind whatsoever; and
(v) any and all claims for monetary recovery, including, without
limitation, attorneys' fees, experts' fees, medical fees or expenses, costs and
disbursements and the like.
(b) In no event shall Executive be deemed by this Section 5 to have
released (i) any rights or claims he may have for payments or benefits under
this Agreement, including payments due to Consultant hereunder and (ii) his
right to indemnification or contribution as provided by law or the certificate
of incorporation, bylaws or policies of the Company or to protection under any
directors' and officers' liability insurance policies maintained by the Company.
The Company agrees that the protections accorded to Executive under its
Certificate of Incorporation and/or Bylaws will not be reduced, except as
required by the mandatory application of revisions of applicable law, and
Executive will be entitled to such protection under the directors' and officers'
liability insurance policies maintained by the Company from time to time on an
equal basis with other persons who are serving as officers and/or directors on
the date hereof.
(c) In consideration of the foregoing release and the further undertakings
of Executive and Consultant set forth in this Agreement, the Company, for itself
and on behalf of its current, former and future officers, directors,
shareholders, employees, agents, attorneys, independent contractors, and legal
representatives, parents, subsidiaries, affiliates, successors and assigns
(whether acting as agents for the Company or in individual capacities
(collectively, hereinafter, the "Company Releasors") hereby release and forever
discharge the Executive, his heirs, successors and assigns ("Executive
Releasees") from, and hereby acknowledges full accord and satisfaction of, any
and all claims, demands, causes of action, and liabilities of any kind
whatsoever (upon any legal or equitable theory, whether contractual, at common
law, statutory, under federal, state or local law of the United States or any
other jurisdiction, or otherwise), whether known or unknown, asserted or
unasserted, by reason of any act, omission, transaction, agreement or occurrence
that Company Releasors ever had, now have or hereafter may have against the
Executive up to and including the date of the execution of this Agreement. In no
event, however, shall the Executive Releasees be deemed by this Section 5 to
have been released in respect of (i) any obligations undertaken by Executive or
Consultant pursuant to this Agreement, including, without limitation, repayment
of the loan as provided in Section 3, (ii) any violations of securities law, or
(iii) any act or inaction constituting fraud or willful misconduct. Without
limiting the generality of the foregoing, the Company Releasors hereby release
and forever discharge the Executive Releasees from:
(i) any and all claims relating to or arising from Executive's
employment the Company;
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(ii) any and all claims for slander, libel, defamation, negligent or
intentional infliction of emotional distress, prima facie tort, invasion of
privacy, negligence, compensatory or punitive damages, or any other claim for
damages or injury of any kind whatsoever; and
(iii) any and all claims for monetary recovery, including, without
limitation, attorneys' fees, experts' fees, medical fees or expenses, costs and
disbursements and the like.
6. Confidential Information Executive and Consultant (hereafter in this
Section 6 and Sections 7 and 8 sometimes collectively referred to for
convenience as the "Executive") agree that all Confidential Information that has
come into Executive's possession by reason of Executive's employment with the
Company, or comes into Executive's possession by reason of the consulting
services performed for the Company pursuant to this Agreement, is the exclusive
property of the Company and shall not be used except in the course of providing
consulting services for Company's exclusive benefit. Further, Executive shall
not, during the Consulting Term or thereafter, disclose or acknowledge the
content of any Confidential Information to any person who is not an agent,
employee, officer, or director of the Company authorized to possess such
confidential information. "Confidential Information" means all proprietary
information reasonably relating to the business and operations of the Company.
Confidential Information includes by way of illustration and without limitation:
trade secrets, business plans, marketing plans and strategies, pricing
information, financial data, customer and supplier information, regulatory
approval strategies, new products, and other proprietary information that was
developed, assembled, gathered by, or originated with the Company for its own
private use. "Non-Confidential Information" means all information concerning the
business and operations of the Company that does not constitute Confidential
Information. The Company agrees that during the Consulting Term it will use good
faith efforts to designate as Non-Confidential Information all materials
delivered or made available to Executive which the Company deems to not
constitute Confidential Information. Nothing herein is intended to preclude the
use or disclosure of Confidential Information by Executive as is necessary to
the performance of consulting duties under this Agreement and in furtherance of
the Company's best interests, as required by applicable law, or as otherwise
authorized by the Company. Executive agrees that upon the termination of his
employment with the Company and upon termination of the Consulting Term,
Executive will return all documents, writings, electronic storage devices, and
other tangible things containing any Confidential Information then in
Executive's possession to the Company without making or retaining copies,
excerpts, or notes of such information. Under no circumstances, however, shall
this Section 6 be interpreted in any way to restrict or otherwise prevent
Executive from fully performing his consulting duties for the Company.
Confidential Information shall exclude any information that (i) is independently
developed by Executive without the use of any Confidential Information (as
evidenced by written records maintained in the ordinary course of business),
(ii) is received without an obligation of nondisclosure by Executive from a
third party who has a lawful right to so disclose, (iii) is currently in the
public domain, or (iv) hereafter comes into the public domain through no action
or fault on the part of Executive.
7. Obligations Regarding Inventions
(a) Executive represents, warrants and covenants that as of (i) the
Resignation Date, and (ii) the date on which the Consulting Term terminates,
Executive will have disclosed to the
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Company, or any persons designated by it, and that Executive will not have used
himself or disclosed to anyone else and will not use himself or disclose to
anyone else at any time thereafter, except in performing the consulting services
hereunder, without the prior written consent of the Company, all inventive
compositions, formulations, methods, processes, techniques, improvements,
know-how, and data, whether or not patentable, that are made, conceived, reduced
to practice, or learned by him either alone or jointly with others, during the
period of his employment and provision of consulting services pursuant to this
Agreement that are related to Company Technology (collectively "Inventions").
Executive also represents, warrants, and covenants that, during the period of
his employment and during the Consulting Term, Executive has maintained and will
maintain appropriate records to document the Inventions and to provide all such
records or other information in his possession regarding the Inventions to the
Company or, if appropriate, to the Company's intellectual property attorneys. On
or prior to the Resignation Date Executive shall have turned over to the Company
all records Executive has prepared with respect to the Inventions. Upon
termination of the Consulting Term, Executive will turn over any additional such
records he may prepare during the Consulting Term.
(b) Executive agrees that the Inventions are the sole property of the
Company and its assigns, and the Company and its assigns are the sole owner of
all patents, copyrights, trade secrets, and other intellectual property rights
(collectively, "IP Rights") in connection therewith. Executive hereby assigns to
the Company all right, title and interest he may have or acquire in the
Inventions.
(c) Executive further agrees as to the Inventions to assist the Company in
every reasonable and proper way (but at the Company's expense) to obtain and
from time to time enforce IP Rights regarding the Inventions in any and all
countries, and to that end Executive will execute all documents relating to
inventorship or his inventive contributions for use in applying for and
obtaining such IP Rights thereon and enforcing same, as the Company may desire,
together with any assignments thereof to, or other documents evidencing
ownership by, the Company or entities or persons designated by it. If, for any
reason, the Company is unable to obtain Executive's signature to any such
document, Executive hereby irrevocably designates and appoints the Chief
Executive Officer of the Company as his agent and attorney-in-fact to execute
and file any such documents, with the same legal force and effect as if
Executive had executed them. Executive agrees that these obligations to assist
the Company in obtaining and enforcing IP Rights in any and all countries shall
continue beyond the termination of Executive's employment and the Consulting
Term, in return for which assistance the Company shall compensate Executive at a
reasonable rate for time actually spent and expenses reasonably incurred by him
at the Company's request on such assistance.
8. Restrictive Covenants
(a) During the time that Consultant is receiving payments from the Company
pursuant to this Agreement, neither Executive nor Consultant will compete
directly with the Company anywhere in the world by rendering services or
providing assistance with respect to its business, which is the sustained and or
controlled delivery of drugs using bioadhesive formulations that attach to
epithelial and/or mucosal surfaces (collectively referred to as "Company
Technology"). The term "compete" as used herein means that Executive or
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Consultant engages in research, development, design, consulting, manufacturing,
marketing, promotion, or sales with respect to the Company Technology for a
third party or for its or their own interest.
(b) Executive and Consultant also agree that during the period stated in
subsection (a) above, neither of them will (i) directly solicit or encourage in
any manner the resignation of any employee of the Company or any of its
subsidiaries; or (ii) directly or indirectly solicit or divert customers,
vendors, or business of the Company or any of its subsidiaries (provided that
Executive and Consultant may deal with any such customers or vendors in any
manner which does not violate the provisions of subsection (a) above); or (iii)
attempt to influence, directly or indirectly, any person or entity to cease,
reduce, alter or rearrange any business relationship with the Company or any of
its subsidiaries.
(c) Executive and Consultant acknowledge and agree that they consider the
restrictions set forth in this Section 8 to be reasonable both individually and
in the aggregate, and that the duration, geographic scope, extent and
application of each of these restrictions are no greater than is necessary for
the protection of the Company's legitimate interests. It is the desire and
intent of Executive, Consultant and the Company that the provisions of this
Section 8 shall be enforced to the fullest extent possible under the laws and
public policies of the State of New York. The Company, Executive and Consultant
further agree that if any particular provision or portion of this Section 8
shall be adjudicated to be invalid or unenforceable, such adjudication shall
apply only with respect to the operation of such provision in the particular
jurisdiction in which such adjudication is made. The Company, Executive and
Consultant further agree that in the event that any restriction herein shall be
found to be void or unenforceable but would be valid or enforceable if some part
or parts thereof were deleted or the period or area of application reduced, such
restriction shall apply with modification as may be necessary to make it valid,
and Executive, Consultant and the Company empower a court of competent
jurisdiction to modify, reduce or otherwise reform such provision(s) in such
fashion as to carry out the parties' intent to grant the Company the maximum
allowable protection consistent with the applicable law and facts and the
express exceptions contained herein.
(d) Without limiting the foregoing, Executive will not be deemed to be in
competition with the Company by reason of his employment by an enterprise
("Subsequent Employer") whose businesses include both (i) activities that
involve the Company Technology ("Covered Business") and (ii) activities that do
not involve the Company Technology ("Excluded Business") upon satisfaction of
the following conditions: (A) Executive delivers to the Subsequent Employer a
copy of this Agreement or an extract thereof setting forth fully and completely
the restrictions set forth in Section 6 and this Section 8; (B) the Subsequent
Employer executes and delivers to the Company a written agreement in which, as a
condition to Executive's employment, the Subsequent Employer (1) acknowledges
receipt of such restrictions, (2) agrees to employ Executive only in the
Excluded Business, (3) agrees to cause the executive in charge of the Covered
Business to acknowledge such restrictions in writing and agree that Executive
will not be permitted to participate in the Covered Business, (4) agrees to
establish reasonable internal policies and procedures to prevent violation of
such restrictions or disclosure by Executive to personnel engaged in the Covered
Business, and (5) agrees that the Company shall be entitled to enforce such
agreement directly against the Subsequent Employer;
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and (C) Executive and the Subsequent Employer perform their obligations pursuant
to this Agreement and such agreement.
9. Duty of Cooperation Without limiting the provisions of Section 7(c),
both during and following the Consulting Term, Executive and Consultant will
cooperate reasonably with the Company, upon request, in relation to the defense,
prosecution or other involvement in any continuing or future claims, lawsuits,
charges, and internal or external investigations which arise out of events or
business matters which either have occurred, or will occur, during Executive's
employment by the Company or the Consulting Term, and of which Executive has or
had knowledge. Such continuing duty of cooperation shall include making
Executive available to the Company, upon reasonable notice, for depositions,
interviews, and appearance as a witness, and furnishing information to the
Company and its legal counsel upon request. The Company will reimburse actual
documented reasonable out-of-pocket expenses necessarily incurred in assisting
the Company in this manner, such as travel, lodging and meals. Company will also
compensate Executive at a reasonable rate for time actually spent by him at the
Company's request fulfilling Executive's obligations under this Section 9.
10. No Commencement of Legal Proceedings Executive represents that he has
not commenced or caused to be commenced, or participated, aided or cooperated
in, any action, charge, complaint, proceeding of any kind (on his behalf or on
behalf of any other person or as a member of any alleged class of persons) that
is presently pending in any court or before any administrative, regulatory or
investigative body or agency, against or involving the Company or the Company
Releasees. Further, Executive agrees that he will not recover upon, or otherwise
enforce or accept monies from any judgment, decision or award upon any claim
released by Executive in Section 4 of this Agreement.
11. No Disparagement Executive agrees that he will not disparage or
encourage or induce others to disparage the Company or any of the Company
Releasees. For the purposes of this Agreement, "disparage" includes, without
limitation, comments or statements to any person or entity, including but not
limited to the press and/or media, employees, officers, directors, or
shareholders of the Company or any entity with which the Company has a business
relationship, which could reasonably be expected to adversely affect in any
manner (a) the conduct of the business of the Company or any of the Company
Releasees (including but not limited to any business plans or prospects), or (b)
the reputation of the Company or any of the Company Releasees. The Company
agrees that it and its agents will not disparage Executive.
12. No Admissibility The making of this Agreement is not intended, and
shall not be construed, as an admission that the Company, or any person now or
previously employed by or associated with the Company, has violated any federal,
state or local law, ordinance, regulation, public policy or common law rule, or
has committed any wrong whatsoever against Executive.
13. Shares Owned by Executive Executive affirms that on the Resignation
Date he is the beneficial owner of 3,128,310 shares of the Company's common
stock, which includes (i) 20,570 shares issuable upon conversion of 1,000 shares
of Series B Preferred Stock, (ii) 71,428 shares issuable upon conversion of 250
shares of Series C Preferred Stock, (iii) 1,298,750 shares issuable upon
exercise of options and warrants which are currently exercisable, and (iv)
498,062 shares beneficially owned by Executive's spouse. Executive shall comply
with all applicable laws in
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connection with every offer, sale, or other transfer of such shares. Executive
acknowledges and agrees that (i) the United States securities laws prohibit any
person who has material non-public information about a company from purchasing
or selling securities of such company, or from communicating such information to
any other person under circumstances in which it is reasonably foreseeable that
such person is likely to purchase or sell such securities, (ii) that on the
Resignation Date Executive directly or indirectly beneficially owns more than
five percent (5%) of the Company's issued and outstanding common stock, (iii)
that so long as he directly or indirectly beneficially owns more than five
percent (5%) of the Company's issued and outstanding common stock, he will be
subject to periodic reporting obligations pursuant to the U.S. Securities
Exchange Act of 1934, as amended, and (iv) he will comply with his obligations
pursuant to such laws.
14. Return of Property Executive will promptly remove from the Company's
premises all personal property of Executive and return to the Company the items
of personal property belonging to the Company listed on the attached Schedule
14. Executive represents and warrants that the items of personal property listed
on Schedule 14 are all of the items of personal property belonging to the
Company that Executive has in his possession.
15. General
(a) Enforcement/Severability/Reformation: The parties agree that a breach
or threatened breach of any protective or restrictive provisions contained in
Section 6, Section 7 or Section 8 will cause immediate irreparable harm to the
Company for which legal remedies alone are inadequate to compensate. Therefore,
Executive agrees that those provisions shall be enforceable in equity by
specific performance, temporary restraining order, temporary or permanent
injunction or otherwise in addition to, but without limitation of, any monetary
damages, sanctions or other legal remedies available, plus recovery by the
Company of its reasonable attorneys' fees and expenses incurred in enforcing
those provisions. The parties further agree that in the event that any
provisions of this Agreement are declared invalid or unenforceable, as written,
the remaining provisions shall not be abridged or affected.
(b) Notice: Any notice or other communication required or permitted under
this Agreement by either party hereto to the other will be in writing, and will
be deemed effective upon (i) personal delivery, if delivered by hand, (ii) three
days after the date of deposit in the mails, postage prepaid, if mailed by
certified or registered mail, or (iii) the next business day, if sent by a
prepaid overnight courier service, and in each case addressed as follows:
If to Executive:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Titmore Green
Little Wymondly
Hitchen Herts, UK
If to the Consultant:
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If to Company:
President
Columbia Laboratories, Inc.
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Second Floor - Plaza I
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With a copy to:
General Counsel
Columbia Laboratories, Inc.
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Second Floor - Plaza I
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Either party may change the address or addresses to which notices are to be
sent by giving notice of such change of address in the manner provided by this
Section 15(b).
(c) Assignability: Neither this Agreement nor any rights or obligations
hereunder may be assigned by one party without the written consent of the other,
except that the Company may assign this Agreement to any subsidiary, parent or
affiliate entity, and this Agreement shall inure to the benefit of any successor
of the Company, whether by merger, consolidation, sale of assets or otherwise,
and reference herein to the Company shall be deemed to include any such
successor or successors. The obligations of Executive hereunder shall be binding
upon him and his heirs, successors and assigns.
(d) Interpretation: Should any provision of this Agreement require
interpretation or construction, it is agreed by the parties that the entity
interpreting or construing this Agreement shall not apply a presumption that the
provisions hereof shall be more strictly construed against one party by reason
of the rule of construction that a document is to be construed more strictly
against the party who prepared the Agreement, it being agreed that both parties
(by their respective attorneys) have participated in the preparation of this
Agreement.
(e) Counterparts: This Agreement may be executed in counterparts, and each
counterpart when executed shall have the efficacy of a signed original.
Photographic copies of such signed counterparts may be used in lieu of the
originals for any purpose.
(f) Governing Law; Submission to Jurisdiction:
(i) This Agreement will be governed by and construed in accordance
with the substantive laws of the State of New York, without application of its
conflict or choice of law provisions.
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(ii) Each party agrees that any suit, action or proceeding with
respect to this Agreement, and the performance of the parties hereunder shall
only be brought in the courts of the State of New York in the County of New
York, City of New York, or in the United States District Court for the Southern
District of New York. Accordingly, each party submits irrevocably to the
exclusive jurisdiction of each such court for the purpose of any such suit,
action or proceeding and waives irrevocably both any right which it may have to
bring any such suit, action or proceeding in any forum other than a court of the
State of New York in the County of New York, City of New York, or in the United
States District Court for the Southern District of New York, and any defense
which it may have to the enforcement of this provision, whether based on the
inconvenience of the forum or otherwise. Each party acknowledges that service of
process in any such suit, action or proceeding may be effected in the manner
provided in Section 15(b), as well as in any manner then permitted, as the case
may be, under the New York Civil Practice Law and Rules or the Federal Rules of
Civil Procedure of the United States of America.
(g) No Debarment: Executive warrants and represents that he has never been,
and is not currently, an individual who has been debarred by the United States
Food and Drug Administration ("FDA") pursuant to 21 U.S.C. (S)335a (a) or (b)
("Debarred Individual") from providing services in any capacity to a person that
has an approved or pending drug product application. Consultant and Executive
further warrant and represent that Executive will personally perform all
services to be performed under this agreement and will not obtain advice or
assistance from any Debarred Individual or from any corporation, partnership, or
association that has been debarred by the FDA pursuant to 21 U.S.C. (S)335a (a)
or (b) ("Debarred Entity") from submitting or assisting in the submission of a
drug product application. Executive and Consultant further warrant and represent
that they have no knowledge of any circumstances that may affect the accuracy of
the foregoing warranties and representations, including, but not limited to, FDA
investigations of, or debarment proceedings against, Executive, Consultant or
any person or entity with which either is associated or that provides services
to either of them, and Executive and Consultant will immediately notify the
Company if either becomes aware of any such circumstances during the term of
this Agreement.
(h) Survival: Executive's obligations set forth in Sections 6, 7, 8 and 11
represent independent covenants by which Executive and Consultant are and will
remain bound notwithstanding any breach or claim of breach by the Company, and,
together with the provisions of Section 9 and this Section 15, will survive the
termination or expiration of this Agreement; provided, however, that the
obligations set forth in Section 8 shall terminate if the Company fails to make
any payment of any installment of the consulting fees provided in Section 2(d)
and such failure shall continue for a period of ten (10) days after written
notice of such failure is delivered to the Company.
(i) Headings: The headings contained in this Agreement are for reference
purposes only, and will not affect the meaning or interpretation of this
Agreement.
(j) Entire Agreement: This Agreement, including the recitals hereto,
contains the entire agreement and understanding between the Company and
Executive relating to his separation from employment and his engagement by the
Company as a consultant, and is intended to supersede all prior communications,
negotiations and agreements proposed or otherwise, whether written or oral,
concerning the subject matter hereof. This is an integrated
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document. Without limiting the foregoing, it is acknowledged and agreed that
each of (i) the Employment Agreement between the Executive and the Company,
dated as of January 1, 1996, as amended, (ii) the employment agreement between
the Company and Executive, dated April 30, 1992 and (iii) the employment
agreement between the Company and Executive, dated January 1, 1990, has
terminated and is of no effect whatsoever.
16. Acknowledgement and Certification Executive acknowledges and certifies
that he:
(a) Has read and understands all of the terms of this Agreement and does
not rely on any representation or statement, written or oral, not set forth in
this Agreement;
(b) Has had a reasonable period of time to consider this Agreement;
(c) Is signing this Agreement knowingly and voluntarily;
(d) Has been advised to consult with an attorney before signing this
Agreement;
(e) Has had the opportunity to consider the terms of this Agreement for at
least twenty-one days, and that if he took fewer than twenty-one days, he agrees
that he had ample and reasonable time in which to review it; and
(f) Has the right to revoke this Agreement within seven days after signing
it, by providing written notice of revocation to the Company, in care of its
General Counsel, in which event this Agreement becomes null and void in its
entirety.
[Signature Page Follows]
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IN WITNESS WHEREOF, intending to be legally bound, the parties have
executed this Agreement as of the date first set forth below above.
COLUMBIA LABORATORIES, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President Illegible
EXECUTIVE
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ CONSULTING
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
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SCHEDULE 2(B)
CONTINUING INSURANCE BENEFITS
1. Medical benefits in accordance with the Company's group health insurance
plan, currently with Oxford Health Insurance, Inc., subject to geographic
limitations, co-payment and other terms and conditions of such plan.
2. Dental benefits in accordance with the Company's group health insurance
plan, currently with Met Life, subject to geographic limitations,
co-payment and other terms and conditions of such plan.
3. Life insurance, with death benefit of $150,000, in accordance with the
Company's group life insurance policy, currently underwritten by UNUM Life
Insurance, subject to the terms and conditions of such policy.
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SCHEDULE 14
COMPANY-OWNED PERSONAL PROPERTY BEING RETURNED
1. Two Visa cards;
2. Electronic key for Paris office;
3. VAIO laptop computer
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