Exhibit
10.1


 


FINAL
AGREEMENT AND GENERAL RELEASE


 


This Final Agreement and
General Release (the “Final Agreement”) is made by and between Peter Chakoutis
(“Chakoutis”) and DUSA Pharmaceuticals, Inc. (“DUSA”).


 


WHEREAS,
Chakoutis has remained employed by DUSA from the period of time from January 1,
2005 through March 31, 2005, and has faithfully executed his duties as assigned
to him by DUSA during this time period;


 


WHEREAS,
DUSA and Chakoutis wish to confirm the exclusive terms of Chakoutis’
resignation and final separation from employment with DUSA, and to settle,
release and discharge with prejudice, any and all claims or issues arising out
of Chakoutis’ employment with DUSA and his final separation from that
employment.


 


NOW
THEREFORE, in consideration of the mutual commitments set
forth in this Final Agreement, and intending to be legally and forever bound,
DUSA and Chakoutis agree as follows:


 


1.             Separation from Employment.


 


1.1           Chakoutis’
employment with DUSA, for all purposes, is ended effective March 31, 2005.  As of the close of business on March 31,
2005, Chakoutis will cease to be an employee and officer of DUSA or any
Released Party and Chakoutis hereby resigns from his officer position and his
employment with DUSA as of March 31, 2005.


 


1.2           Accordingly,
after March 31, 2005, Chakoutis will not accrue or be entitled to any form of
compensation, wages, commissions, bonuses, severance, vacation, sick time or
other paid time off, expense accounts, health, accident, welfare, disability or
life insurance, or participation in any employee benefit plans including but
not limited to pension, retirement, deferred compensation, salary continuation,
stock option, stock ownership, stock appreciation, incentive or other form of
employee fringe or other benefit plan, policy or practice.


 


1.3           Except
as otherwise specifically provided in this Final Agreement, any duties or
obligations of DUSA pursuant to Chakoutis’ employment or his separation from
that employment, whether by written agreement or otherwise, are and were
completely extinguished as of March 31, 2005. Additionally, nothing in this
Final Agreement may be relied upon as in any way modifying, altering or
changing the terms of any applicable health, life, medical dental or other
employee benefit or long term incentive plans. 
Moreover, nothing in this Final Agreement is intended to reduce, in any
manner, Chakoutis’ rights with regard to insurance conversion under any
applicable federal, state or local law or regulation.


 





















 


1.4           Notwithstanding
anything contained in this Final Agreement, the non-compete, confidentiality
and indemnification obligations more fully set forth in Paragraphs 9 and 12 of
Chakoutis’ Employment Agreement dated January 1, 2004 remain in full force and
effect pursuant to their terms.


 


2.             Payments and Other Benefits to Be Provided by DUSA
in Consideration of this Final Agreement.


 


2.1           In
exchange for and in consideration of Chakoutis’ promises and covenants as set
forth in this Final Agreement, and contingent upon DUSA’s receipt of an unrevoked
original thereof, fully-executed by Chakoutis, DUSA agrees to provide
Chakoutis, on behalf of all Released Parties, with a Supplemental Severance
Payment and other benefits, as further defined herein, which Chakoutis agrees
constitute good and adequate consideration in exchange for his promises
contained herein.


 


2.2           In
exchange for and in consideration of Chakoutis’ promises, covenants and general
release set forth in this Final Agreement, subject to the terms stated herein
and within fourteen (14) calendar days following the Effective Date (as defined
herein) of this Final Agreement, DUSA agrees to provide Chakoutis with a gross
payment in the amount of $33,750, less all
applicable federal, state and local taxes and other required or elected withholdings,
representing an amount equal to three (3) months of pay at the annualized
salary rate of One Hundred Thirty-Five Thousand and 00/100 ($135,000) per year
(the “Supplemental Severance Payment”).


 


2.3           In
further consideration of Chakoutis’ promises, covenants and general release set
forth in this Final Agreement, DUSA will also make a payment to Chakoutis for
all vacation time accrued but unused as of March 31, 2005, in accordance with
DUSA’s policies and practices (the “Supplemental Vacation Payment”). The hourly
rate on this unused vacation time will be $64.90 per hour based on the annual
salary rate of One Hundred Thirty-Five Thousand and 00/100 ($135,000).


 


2.4           Chakoutis
acknowledges that the payments and benefits afforded to him through this Final
Agreement, including the Supplemental Severance Payment, are greater than any
payments, benefits or other consideration to which he may presently be
entitled, including: (1) pursuant to any express or implied agreement, contract
or understanding with DUSA; or (2) under any prior or current DUSA policies,
practices or employee benefit plans, including but not limited to compensation,
vacation, bonus, severance, or other fringe benefit plans. In addition, DUSA
acknowledges that the transition period and offer to remain employed during the
Extended Employment Period is significant and exceeds what would normally be
provided as notice.


 





















 


3.             Release and Covenant Not to Sue.


 


3.1           Upon
execution of this Final Agreement and its Effective Date, and in consideration of
the payments and other benefits described herein, Chakoutis, on behalf of
himself, his spouse, his heirs, executors, administrators, assigns, agents and
representatives, hereby unconditionally releases and completely and forever
discharges DUSA, as well as the present and former officers, directors,
employees, attorneys, and agents of each of these entities, individually and in
their official capacities, and any of their employee 401(k) or other employee
benefit plans as well as the administrators, fiduciaries, parties-in-interest,
employees, agents, attorneys and trustees of any such plans (collectively
referenced throughout this Final Agreement as the “Released Parties”), from any
and all of the following claims, prayers for relief  or alleged damages that arose or existed
before the date Chakoutis executes this Final Agreement for:  (1) 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
(2) any and all claims, issues, prayers for relief and any other causes of
action arising under any federal, state and/or local employment laws,
regulations or ordinances, including, but not limited to, claims under the
Employee Retirement Income Security Act, 29 U.S.C. 1001, et seq.
(“ERISA”), Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §
2000 (e), et seq. (“Title VII”); the Civil Rights Act of 1991, 42 U.S.C. §§ 1981, 1983,
1985, 1986 and 1988; the Age Discrimination in Employment Act, 29 U.S.C. § 621,
et seq. (“ADEA”); the Vietnam Era
Veterans Readjustment Assistance Act of 1974, 38 U.S.C. § 2012, et seq. (“VERRAA”); the Americans With Disabilities Act, 42
U.S.C. § 12101, et seq. (“ADA”); the Occupational
Safety and Health Act, 29 U.S. § 651, et seq. (“OSHA”);
the Older Workers Benefit Protection Act, 29 U.S.C. § 626(f), et seq. (“OWBPA”); the Consolidated Omnibus Budget
Reconciliation Act, 29 U.S.C. § 1161, et seq. (“COBRA”);
the Worker Adjustment and Retraining Notification Act, 29 U.S.C. § 2101, et seq. (“WARN”); the Federal
Family and Medical Leave Act, 29 U.S.C. §2601, et seq.
(“FMLA”); the Equal Pay Act of 1963, et seq. (“EPA”);
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 Massachusetts Fair Employment Practices Act, Mass Gen. Laws Ann.
ch. 151B, § 1, et seq. (“FEPA”), the
Massachusetts Whistleblower Statute, Mass Gen. Laws Ann. ch. 149, § 185, et seq.; the Massachusetts Privacy Act, Mass. Gen. Laws ch.
214, § 1B, et seq.; the Massachusetts Wage and
Hour Laws, Mass. Gen. Laws ch. 151, § 1, et seq.; the
Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12, § 11H, et seq.; the Massachusetts Right-to-Know Law, Mass. Gen.
Laws Ann. ch. 111F, et seq.; the
United States and Massachusetts Constitutions; and all claims under any other
federal, state or local statute, regulation, ordinance, law or judicial
decision establishing or 


 





















 


providing any other employment-related
or civil right which Chakoutis may have on or before the date he signs this
Final Agreement, including those claims which he knows about and those claims
which he may not know about.  Chakoutis
understands that these laws give him important remedies that relate to claims
he has or may have arising out of or in connection with his employment by any
Released Party or the termination of that employment, and he freely and
voluntarily gives up those remedies and claims after being encouraged to and
having had the opportunity to consult with legal counsel.


 


3.2       Upon
execution of this Final Agreement and its Effective Date, Chakoutis, for full
consideration as recited above and below, and on behalf of himself, his spouse,
his heirs, executors, administrators, assigns, agents and representatives,
hereby agrees not to file a lawsuit or claim against any Released Party in any
court of the United States, any state or local governmental unit thereof, or
with any arbitration panel concerning any claim, demand, issue or cause of
action covered by this Final Agreement. 
Notwithstanding any other language in this Final Agreement, the parties
understand that this Agreement does not prohibit Chakoutis from filing any claim
or action seeking to enforce the terms of this Final Agreement.  The parties further understand that this
Final Agreement shall not be construed as prohibiting Chakoutis from filing an
administrative charge of alleged employment discrimination or participating or
cooperating with any administrative agency in the investigation of an
administrative charge of alleged employment discrimination under Title VII, the
ADEA, the ADA, the EPA or FEPA. 
Chakoutis, however, waives his right to any individual monetary,
injunctive relief, or other recovery should any federal, state or local
administrative agency pursue any claims on his behalf arising out of or
relating to his employment with and/or separation from employment with DUSA or
any of the Releases in this Separation Agreement.  This means that by signing this Final
Agreement, Chakoutis will have waived any right he had to bring a lawsuit or
obtain an individual recovery if an administrative agency pursues a claim
against DUSA based on any actions taken by any of them up to the date of
Chakoutis’ execution of this Final Agreement, and that Chakoutis will have
released and discharged DUSA of any and all claims of any nature arising up to
the date he has executed this Final Agreement.


 


4.             Return of Confidential Information.


 


4.1           Chakoutis
acknowledges and agrees that all confidential information and other proprietary
business information (collectively referenced as “Confidential Information”) of
DUSA and other documents and records, whether printed, typed, handwritten,
videotaped, transmitted or transcribed on data files or on any other type of
media, and whether or not labeled or identified as confidential or proprietary,
made or compiled by Chakoutis, or made available to Chakoutis during the period
of his employment with DUSA, is the sole property of DUSA.  Chakoutis warrants and represents that, as of



 





















 


March
31, 2005, he has delivered all originals and copies of such Confidential
Information, regardless of format, to Marianne Mullin of DUSA, or her
successor.


 


5.             Confidentiality of Terms.


 


5.1           As
further material consideration for DUSA’s promises herein and except as
specifically provided in Paragraph 3 above, Chakoutis agrees not to disclose to
any person or entity the terms and conditions of this Final Agreement, unless
compelled to do so by an order issued by a court of competent
jurisdiction.  However, nothing in this
Final Agreement shall prohibit Chakoutis from disclosing or discussing the
terms and conditions of this Final Agreement with his: (a) current spouse; (b)
attorneys; or (c) financial or tax advisors, providing that such advisors
regularly provide advice to the general public and that said individuals are
instructed not to further disclose the information.


 


6.             Cooperation.


 


6.1           Chakoutis
further agrees to cooperate fully and in good faith in assisting in defending
any and all pending or future lawsuits against DUSA which arose or may arise
from activities which occurred during the course of his employment.  If any such lawsuits arise subsequent to
Separation Date, DUSA will compensate Chakoutis at a rate of $100 per hour plus
reasonable expenses, as necessary.  If
any such lawsuits occur during the Extended Employment Period, compensation
paid during this Extended Employment Periods will be deducted from such lawsuit
compensation.


 


7.             No Admission of Liability.


 


7.1           Chakoutis
acknowledges and agrees that DUSA’s entry into this Final Agreement is not to
be construed as, and is not admission that, any Released Party violated any
duties or obligations owed to Chakoutis, or treated Chakoutis improperly,
unlawfully or unfairly in any manner whatsoever.  Neither shall this Final Agreement be
construed to be, or be admissible in any proceedings as, evidence of any such
admission by DUSA as to any alleged violation of any federal, state or local law,
common law, agreement, rule, regulation or order.


 


8.             Other Provisions.


 


8.1           The
parties agree and acknowledge that this Final Agreement contains the full,
final and complete agreements, understandings and representations of the
parties with regard to the subject matter stated herein, and that no other
terms or obligations exist between them which are not expressly set forth
herein.


 





















 


8.2           The
parties agree that this Final Agreement is to be governed by, construed and
enforced, in all respects, in accordance with the laws of the Commonwealth of
Massachusetts, exclusive of any choice of law rules.  Any dispute concerning this Final Agreement
shall be brought in, and the parties hereby consent to the personal jurisdiction
of the courts of the Commonwealth of Massachusetts (to the extent that subject
matter jurisdiction exists only).


 


8.3           The
parties also agree that the terms and provisions of this Final Agreement are
severable and that if any term or provision herein is found unenforceable by a
court of competent jurisdiction, the remaining terms shall remain in full force
and effect.  The parties further agree
that the terms and provisions of this Final Agreement shall not be construed
against the drafter in any respect.


 


8.4           Chakoutis
further warrants that he has had the opportunity to review and consider this
Final Agreement for twenty-one (21) days, and that any material or immaterial
changes to this Final Agreement will not restart the running of the twenty-one
(21) day period.  Chakoutis also
acknowledges and agrees that, by this writing, he has been advised to seek the
guidance and advice of legal counsel in considering the terms and effect of
this Final Agreement, and that he has had been provided with the opportunity to
do so prior to executing this Final Agreement. 
Chakoutis also acknowledges by signing this Final Agreement that he has
carefully read this Final Agreement, that he understands completely its
contents, that he has had an opportunity to have an attorney explain those
contents to him, and that he has executed this Final Agreement of his own free
will, act and deed.


 


8.5           To
the extent Chakoutis signs the Final Agreement prior to the expiration of the
twenty-one (21) day period and delivers an executed original to DUSA, he
additionally acknowledges and warrants that he has voluntarily and knowingly
waived the twenty-one (21) day review period and that the decision to accept
such a shortened period of time is not induced by DUSA or any Released Party
through fraud, misrepresentation, a threat to withdraw or alter the offer prior
to the expiration of the twenty-one (21) day time period, or by providing
different terms to workers who sign releases prior to the expiration of such
time period.


 


8.6           Chakoutis
understands and expressly agrees that, following his execution of this Final
Agreement and delivery of same to DUSA, he shall have a period of seven (7)
days during which time he may revoke the Final Agreement by delivering written
notification to DUSA, no later than the close of business on the seventh (7th)
calendar day after he signs this Final Agreement, and that this Final Agreement
shall not be effective or enforceable prior to the expiration of that
period.  This Final Agreement shall be
forever binding and enforceable once the seven (7) day period has expired.  


 





















 


For purposes of this
Final Agreement, the term “Effective Date” referenced throughout this Final
Agreement, shall mean the eighth (8th) calendar day after Chakoutis
executes this Final Agreement and DUSA receives an effective, unrevoked
original copy.  If Chakoutis revokes this
Final Agreement, the Final Agreement will not be effective and enforceable and
he will not receive the benefits described in this Final Agreement.


 


8.7           All
notices, requests, demands and other communications hereunder to DUSA must be
in writing and shall be deemed to have been given if delivered by hand or sent via regular and certified mail, return receipt requested,
addressed as follows:


 


Marianne Mullin


DUSA Pharmaceuticals,
Inc.


25 Upton Drive


Wilmington, Massachusetts
01887


 


IN WITNESS WHEREOF,
intending to be forever legally bound hereby and for full consideration, the
parties have executed this Final Agreement, being seven (7) pages in length, on
the date(s) set forth below.


 


 


	
  /s/ Peter Chakoutis

  	
   

  	
  DUSA Pharmaceuticals,
  Inc.

  
	
  Peter Chakoutis

  	
   

  
	
   

  	
   

  
	
  Date 3/31/05

  	
  /s/ Robert F. Doman

  	
   

  
	
   

  	
  By:  Robert
  F. Doman,

  
	
  Witness:

  	
  President
  and Chief Operating Officer

  
	
   

  	
   

  
	
  /s/ Marianne Mullin

  	
   

  	
   

  
	
   

  	
   

  
	
  Date

  	
  3/31/05

  	
   

  	
  Date 4/4/05