Exhibit 10.1
AGREEMENT AND GENERAL RELEASE AND WAIVER
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ residing at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ (the "Employee") and NUTRITION 21, INC. with its principal
office at ▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Company" or
"Nutrition 21"), on behalf of itself and its officers, directors,
shareholders, employees, agents and parent, affiliates, predecessor,
successor, subsidiary, and other related companies, and each of them
jointly and severally (hereinafter singularly and collectively referred
to as the "Company"), hereby enter into the following Agreement and
General Release and Waiver (the "Agreement"), concerning the Employee's
resignation from the Company.
1. The Employee confirms that on November 3, 2005 she resigned
as a director, officer and employee of the Company and its subsidiaries
and affiliates, and that she was thereafter given at least 21 days to
consider this Agreement and decide for herself whether or not she wants
to sign this Agreement.
2. The Employee consulted with and negotiated through ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ et al., attorneys of her choice, concerning this Agreement
and the implications of Employee signing or not signing the Agreement.
3. The Employee has carefully considered other alternatives to
executing this Agreement and has entered into this Agreement
voluntarily and of the Employee's own free will.
4. The Employee is entitled to change her mind and revoke this
Agreement within seven days after signing it. This Agreement will
become effective only if Employee has not exercised her option to
revoke the Agreement within seven days after its execution and Employee
complies with paragraph eleven (11) of this Agreement.
5. If this Agreement becomes effective:
Nutrition 21 will for the period to end eight months after the date of
her resignation (November 3, 2005) pay to Employee amounts equal to the
salary installments she would have received during this period at the
rate of pay that applied prior to her resignation. For the avoidance of
doubt, these payments will be made retroactive to November 3, 2005. All
such payments shall be net of all applicable Federal and State taxes.
The Company will make these deductions and forward said monies to the
appropriate government agencies.
Nutrition 21 will for the period to end six months after Employee's
resignation (but not past the date, if any, on which Employee obtains
employment that provides medical benefits), continue Employee's
medical, dental and vision benefits.
Nutrition 21 will pay to Employee $10,000 in respect of her legal and
administrative fees and other costs within seven days following the
effectiveness of this agreement..
Nutrition 21 will pay to Employee $3,600 in respect of a car allowance,
against return of her Company car to the Company within seven days
following the effectiveness of this agreement.
Employee may exercise her 1,450,000 vested stock options and her
108,333 vested SAR's only until November 2, 2006. All unexercised
options and SAR's shall expire at the close of business on November 2,
2006. Employee will be permitted to simultaneously exercise her options
and sell the option shares through a broker designated by the Company
who will simultaneously with the sale wire the exercise price to the
Company.
Employee acknowledges that she has no other options or SAR's, and that
all non-vested options and SAR's have expired.
6. The Employee acknowledges that she knows that there are
various State and Federal laws which prohibit employment discrimination
on the basis of age, sex, race, color, creed, national origin, marital
status, religion, disability, veteran status, or other protected
classifications and that these laws are enforced through the Federal
Equal Employment Opportunity Commission, and various state, city,
county and local human rights agencies. In particular, the Employee
knows that she may have rights under the Federal Age Discrimination in
Employment Act, which prohibits companies from discriminating against
employees because of their age. In consideration for the Company making
the payment described in paragraph five (5) of this Agreement, which
the Employee is not otherwise entitled to receive, the Employee intends
to voluntarily give up any rights she may have under these or any other
laws with respect to her prior employment with the Company or
termination of her employment, including her rights under the Age
Discrimination in Employment Act. The Employee agrees that, as of the
date of this Agreement, the Company has not (a) discriminated against
her, (b) breached any express or implied contract with her, or (c)
otherwise acted unlawfully toward her. In this regard, the Employee
acknowledges she has received all compensation and benefits due her.
7. In exchange for the money and option exercise rights set
forth in this Agreement, the Employee, her heirs, personal
representatives, successors and assigns, hereby releases and discharges
the Company, its successors, subsidiaries, and their officers,
directors and employees ("Releasees") from all claims, liabilities,
demands or causes of action, known or unknown, arising out of or in any
way connected with or related to the Employee's employment and the
termination thereof with the Company from the beginning of the world up
to and including the effective date of this Agreement, except for
rights granted under this Agreement and except for any indemnification
rights under the Company's certificate of incorporation and by-laws.
This includes, but is not limited to, claims of entitlement to change
of control payments or to options and SAR's not referred to herein,
wrongful discharge, breach of any implied or express contract, whether
oral or written, fraud, misrepresentation, or any other tort. This also
includes any claims based on any local, state or federal statute
relating to age, sex, race, or any other form of discrimination such
as, but not limited to, the Age Discrimination In Employment Act, Title
VII of the Civil Rights Act of 1964, and other similar state and local
anti-discrimination laws.
8. Cooperation
Employee agrees to provide Nutrition 21 from time to time telephone
consultation, and if deemed necessary by Nutrition 21, consultation in
person at mutually agreeable times, which agreement on the part of
Employee will not be unreasonably withheld, concerning her work for
Nutrition 21. For the avoidance of doubt, Nutrition 21 is not requiring
any substantive work from Employee. The consultation relates
exclusively to such matters as, for example, interpreting handwritten
notes that may be illegible, locating hard copy or computer files, etc.
Employee also agrees to promptly sign and return documents that require
Employee's signature, and have such documents notarized and/or
witnessed if required, e.g. patent assignment documents.
Employee will for no compensation cooperate fully and at reasonable
times with the Company and its subsidiaries in all litigations and
regulatory proceedings on which the Company or any subsidiary seeks
Employee's assistance and as to which Employee had any knowledge or
involvement. Without limiting the generality of the foregoing, Employee
will be available to testify at such litigations and other proceedings,
and will cooperate with counsel to the Company in preparing materials
and offering advice in such litigations and other proceedings. Except
as required by law and then only upon reasonable prior written notice
to the Company, Employee will not in any way cooperate or assist any
person or entity in any matter which is adverse to the Company or which
is adverse to any person who at any time is or was an officer or
director of the Company. Notwithstanding the foregoing, the Company
will reimburse Employee for out of pocket expenses incurred in
connection with attendance at litigation matters that require travel.
9. Employee agrees that at no time after November 3, 2005 will
she disclose or use any confidential information received or acquired
during the Employee's employment, including but not limited to trade
secrets and any proprietary information. Employee agrees that until
November 3, 2006, she will not directly or indirectly compete with
Nutrition 21 or engage in or participate in any business (in whatever
capacity, whether as owner, consultant, adviser, employee or
otherwise), which competes with the business of Nutrition 21. The
preceding sentence does not prohibit Employee from passively owning up
to 2% of the voting securities of any entity that files public reports
under the Securities Exchange Act of 1934; nor does it prohibit her
from being employed by an entity that has a division that competes with
the Company, so long as she is employed by a division of the entity
that does not compete with the Company and she has no contact with
divisions of the entity that do compete with the Company. This Section
9 may be enforced by injunction (without posting bond or other
security), as well as by other remedies.
10. Employee will promptly advise the Company in writing
should she at any time be contacted by any person or entity (including,
without limitation, any private investigator) who seeks any information
whatsoever with respect to the Company, or any of its employees,
directors or officers, or any of its products, services or procedures,
and she will shall forthwith furnish to the Company a complete and
accurate report of all communications by or with any such person or
entity. Employee confirms and acknowledges that she is aware of no
publicly undisclosed information regarding the Company or its officers
or directors which may be material to investors in the Company, lenders
to the Company, or licensing, rating or regulatory entities. "Publicly
undisclosed information" means information which is not contained in
periodic reports filed by the Company under the Securities Exchange Act
of 1934. Except as otherwise required by law (and then only upon 10
days' prior written notice to the Company), neither party will from and
after the date hereof in any way or to any person, denigrate or
derogate the Company or any of its subsidiaries, or any person who was
at any time an employee, officer or director of the Company, or any
products, services or procedures, whether or not such denigrating or
derogatory statements shall be true and are based on acts or omissions
which were learned or are learned by heretofore or from and after the
date hereof or on acts or omissions which occurred at any time
heretofore or which occur at any time from and after the date hereof,
or otherwise.
11. If she has not already done so, the Employee will
forthwith return to the Company all Company property, proprietary
documents and materials in the Employee's possession. Such property,
documents, and materials include, but are not limited to, an
automobile, computer hardware, telephones, keys, correspondence, notes
and notebooks, drawings, prints, photographs, tape recordings,
marketing information, sales information, customer information,
customer lists, computer software disks and other written, typed,
printed or recorded materials to which the Employee had access or which
the Employee developed during the course of her employment with the
Company and all copies thereof. The Employee will forthwith provide the
Company with an inventory of the Company's property in her possession.
12. The Employee affirms that no promise, inducement or
agreement not expressed in this Agreement has been made, and this
Agreement contains the entire agreement of the parties.
13. This Agreement does not constitute an admission by the
Company of any wrongful action or violation of any federal or state
statute or common law rights, including those relating to the
provisions of any law or statute concerning employment actions, or any
other possible or claimed violation of law or rights. The federal and
state courts sitting in the State of New York shall have exclusive
jurisdiction with respect to this Agreement. Trial by jury is waived.
14. If a court of competent jurisdiction finds any provisions
of this Agreement unenforceable under applicable law, the
enforceability of all other provisions shall not be affected by such
partial unenforceability, and the remainder shall continue to be
binding and in full force and effect.
15. The Employee hereby agrees and acknowledges that since
November 3, 2005 she has no longer been employed by the Company and
further agrees and acknowledges that she will make no further attempt,
at any time, to seek employment with the Company and/or any affiliated
company, subsidiary, or division.
16. This Agreement shall not be interpreted in favor of or
against either party on account of such party having drafted this
Agreement.
17. If any party to this Agreement breaches any of the terms
of this Agreement, then that party shall pay to the non-defaulting
party all of the non-defaulting party's costs and expenses, including
attorney's fees, incurred by that party in enforcing the terms of this
Agreement.
18. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of
which shall together constitute one and the same Agreement.
19. The parties shall execute any other instruments and/or
documents that are reasonable or necessary to implement this Agreement.
20. The Employee agrees to keep this Agreement confidential
and not to reveal its contents to anyone except her attorney or her
financial consultant.
21. This Agreement constitutes the entire agreement between
the Employee and the Company and it may only be modified, altered or
changed in writing, signed by both the Company and the Employee. It may
be signed in counterparts and by facsimile.
22. This Agreement shall be subject to and governed by the
laws of the State of New York.
BY SIGNING THIS AGREEMENT AND GENERAL RELEASE AND WAIVER, THE
EMPLOYEE STATES THAT: SHE HAS READ IT; SHE UNDERSTANDS IT AND KNOWS
THAT SHE IS GIVING UP IMPORTANT RIGHTS; SHE AGREES WITH EVERYTHING IN
IT; SHE WAS TOLD, IN WRITING, TO CONSULT AN ATTORNEY BEFORE SIGNING IT;
SHE HAS BEEN GIVEN THE OPPORTUNITY TO REVIEW THE AGREEMENT FOR 21 DAYS
AND THINK ABOUT WHETHER OR NOT SHE WANTED TO SIGN IT; AND SHE HAS
SIGNED IT KNOWINGLY AND VOLUNTARILY.
THEREFORE, the Employee and the Company now voluntarily and
knowingly execute the Agreement and General Release and Waiver as of
this 30th day of November 2005.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
NUTRITION 21, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇