syn_ex101-71120.htm


     

    Exhibit
      10.1

     

     

    
      SEPARATION
        AGREEMENT AND GENERAL RELEASE

    

     

    SEPARATION
      AGREEMENT AND GENERAL RELEASE (this "Agreement") dated effective as of
      October 31, 2007, between JOEL D. MELKA ("Executive") and SYNTHETECH,
      INC., an Oregon corporation ("Synthetech").

     

    RECITAL

     

    
      
        	
                A.

              	
                Executive
                  has been employed as the Vice President of Operations of
                  Synthetech.

              


      

    

     

    
      
        	
                B.

              	
                The
                  Executive's employment relationship with Synthetech has ended,
                  Executive
                  will receive certain severance and other payments in connection
                  therewith
                  and Executive will release Synthetech and certain other persons
                  and
                  entities from claims, all as set forth in this
                  Agreement.

              


      

    

     

    
      AGREEMENT

    

     

    
      NOW,
        THEREFORE, in consideration of the foregoing and the mutual promises contained
        below, and other good and valuable consideration, the receipt and sufficiency
        of
        which are hereby acknowledged, the parties agree as follows:

    

     

    1.           Last
      Day of Employment.  The parties agree that Executive's employment
      shall terminate effective as of October 31, 2007 (the "Termination
      Date"), and the parties hereby agree that Executive's last day of employment
      with Synthetech will be the Termination Date.  Executive hereby
      resigns as an officer of Synthetech effective as of the Termination
      Date.

    Synthetech
      has paid Executive's final paycheck, including accrued vacation pay, on the
      Termination Date, net of applicable withholding taxes to be deducted from that
      amount.  Executive acknowledges and agrees that the amount of his
      final paychecks includes all earned but unpaid wages and bonuses, all unused
      paid time off pay, reimbursement for all unreimbursed business expenses incurred
      by Executive in connection with Executive's employment, and any other
      compensation or benefits that Executive is entitled upon cessation of
      employment, net of applicable taxes to be withheld.

    Executive
      agrees to provide reasonable transition assistance to Synthetech as may be
      requested from time to time after the Termination Date by Synthetech's
      President.

     

    
      2.           Settlement
        Payments and Other Consideration.  Provided that (a) Executive is
        not in breach of any of his obligations to Synthetech under this Agreement
        or
        Section 8 ("Nonsolicitation") of the Employment Agreement dated as of January
        13, 2006 between Synthetech and Executive (the "Employment Agreement") or
        The
        Proprietary Information and Employee Inventions Agreement and (b) Executive
        has not revoked the release of claims set forth in Section 3 of this Agreement,
        Synthetech will:  (i) pay
        Executive the amount of $11,666.67 for each of the six (6) months immediately
        following the
        Termination Date (as defined in Section 3 of this Agreement), on or
        around the last day of each month commencing November 30, 2007 in accordance
        with Synthetech's standard payroll practices and net of applicable withholding
        taxes to be deducted from such amount (the "Settlement Payments"), settlement
        payments are not eligible compensation for deferment or Company matching
        contributions pursuant to Synthetech’s 401(K) Profit Sharing Plan; and (ii) pay the
        Company’s
        portion of any premiums ("the COBRA Payments"), net of applicable
        withholding taxes, necessary to continue
        Executive’s health insurance coverage under Synthetech's health insurance plan
        pursuant to COBRA (provided that Executive timely elects COBRA coverage under
        Synthetech's health insurance plan) until the earlier of six (6) months
        beginning November 1, 2007, or the first date that Executive is eligible
        to be
        covered under another health insurance plan or
        program.  Executive agrees to notify Synthetech at least seven
        (7) days in advance of the commencement of such coverage under another health
        insurance plan or program.

    

     

    
      
         

      

      
        -1-

        
          

        

      

      
         

      

    

    3.           Release
      of Claims by Executive.  In connection with his
      receipt of the Settlement Payments, the COBRA Payments and other benefits
      offered to him under this Agreement (collectively, the "Settlement"), and
      in connection with the termination of his employment, Executive agrees to the
      following release (this "Release"):

     

    (a)           On
      behalf of himself, his heirs, executors, administrators, successors and assigns,
      Executive hereby fully and forever releases and discharges Synthetech, its
      current, former and future parents, subsidiaries, related entities, attorneys,
      employee benefit plans, and their fiduciaries, predecessors, successors,
      officers, directors, shareholders, agents, employees and assigns (collectively,
      the “Released Parties”) from any and all claims, causes of action, and
      liabilities arising out of or relating in any way to his employment with
      Synthetech, including, but not limited to, the (i) offer and termination of
      his employment and (ii) the Employment Agreement.

     

    (b)           Executive
      understands and agrees that this Release is a full and complete waiver and
      release of all claims, including, but not limited to, claims of wrongful
      discharge, breach of contract, breach of the covenant of good faith and fair
      dealing, violation of public policy, defamation, personal injury, emotional
      distress, claims under Title VII of the 1964 Civil Rights Act, as amended,
      the
      Equal Pay Act of 1963, as amended, the Age Discrimination in Employment Act
      of
      1967, as amended, the Older Workers Benefit Protection Act, as amended, the
      Americans with Disabilities Act, the Fair Labor Standards Act, the Employee
      Retirement Income Security Act of 1974, as amended (“ERISA”), and any other
      state, federal or local laws and regulations relating to employment or
      employment discrimination.  The only exceptions are claims Executive
      may have for unemployment compensation and worker’s
      compensation.  Executive does not presently believe he has suffered
      any work-related injury or illness.

     

    (c)           Executive
      understands and agrees that Synthetech will not provide him with the Settlement
      Payments or COBRA Payments unless he agrees to this Release.

     

    (d)           Without
      limiting the generality of the foregoing release of all claims, Executive
      expressly represents and warrants that he is accepting the Settlement in
      resolution of any and all actual and/or potential disputes regarding and in
      full
      satisfaction of any and all claims that he may have against Synthetech for
      unpaid compensation, including, without limitation, salary and
      bonuses.

     

    (e)           Executive
      acknowledges that he may discover facts different from or in addition to those
      which he now knows or believes to be true and that this Release shall be and
      remain effective in all respects even if he discovers new or additional facts
      after he signs this Agreement.

     

    (f)           As
      part of his existing and continuing obligation to Synthetech, he has returned,
      or within seven days of the Termination Date, will return to Synthetech all
      Synthetech documents, information and property, including, without limitation,
      files, records, computer access codes and instruction manuals, as well as any
      Synthetech assets or equipment that he has in his possession or under his
      control.  

     

    
      
         

      

      
        -2-

        
          

        

      

      
         

      

    

    Executive
      further agrees not to keep any copies of Synthetech documents or
      information.  Executive affirms his obligation to keep all Synthetech
      Information confidential and not to disclose it to any third party in the
      future.  Executive understands that the term “Synthetech Information”
includes, but is not limited to, the following:  (i) confidential
      information, including, without limitation, information received from third
      parties under confidential conditions; and (ii) information concerning customers
      (including, without limitation, customer lists), as well as other technical,
      scientific, marketing, business, product development or financial information,
      the use or disclosure of which might reasonably be determined to be contrary
      to
      the interests of Synthetech.

     

    (g)           Executive
      represents and warrants that he is the sole owner of any and all claims relating
      to his employment with Synthetech, and that he has not assigned or transferred
      any claims relating to his employment to any other person or
      entity.

     

    (h)           Executive
      agrees to keep this Release and the other terms of this Agreement confidential
      and not to reveal its contents to anyone except his lawyer, his spouse and/or
      his financial consultant if they agree to keep such information
      confidential.

     

    (i)           Executive
      understands and agrees that neither this Release nor this Agreement shall be
      construed at any time as an admission of liability or wrongdoing by either
      himself or any Released Party.

     

    (j)           Executive
      acknowledges that this Release was presented to him on November 3, 2007 and
      that
      he is entitled to have twenty-one (21) days’ time after receipt of this Release
      within which to review and consider and discuss with an attorney of his own
      choosing whether or not to sign this Agreement and agree to this
      Release.  Executive further understands that, for the period of seven
      (7) days after the date he signs this Agreement and agrees to this Release,
      he
      may revoke it by delivering a written notification of his revocation, no later
      than the seventh day to Synthetech as set forth in Section 6(b)
      below.  Executive further understands that the Effective Date
      of this Release will be the eighth day after he has signed this Agreement,
      provided that (x) he has delivered an executed copy of this
      Agreement to Synthetech and Executive has not revoked this Release during the
      seven days after the date he signed this Agreement and (y) Synthetech's
      obligations with respect to the Settlement will not be effective until the
      Effective Date.

     

    4.           Continuing
      Obligations of Confidentiality and Nonsolicitation.  Executive
      acknowledges his continuing obligations under Section 8 of the Employment
      Agreement, and agrees that although his employment relationship will terminate
      effective as of the Termination Date, Executive will continue to abide by all
      of
      his covenants and agreements under that Section of the Employment
      Agreement.

     

    5.           Nondisparagement.  Each
      party agrees to refrain at all times from making any remarks or statements,
      whether oral or written, or taking any action that disparages or is, or could
      reasonably be expected to be, detrimental to, the character, goodwill or
      reputation of the other party or any of its officers, directors, shareholders,
      employees or other affiliates; provided, however, that the foregoing
      shall not prohibit either party from giving truthful testimony under oath in
      response to a subpoena.  Synthetech agrees to use its best efforts to
      ensure that Synthetech's executive employees refrain from disparaging
      Executive.

     

    
      
         

      

      
        -3-

        
          

        

      

      
         

      

    

    6.           Miscellaneous.

     

    (a)           The
      provisions of this Agreement shall inure to the benefit of, and shall be binding
      upon, Synthetech, its successors and assigns, and Executive, the personal
      representative of his estate and his heirs and legatees; provided,
      however, Executive may not assign, transfer or delegate his rights or
      obligations hereunder and any attempt to do so shall be void.

     

    (b)           Any
      and all notices, demands or other communications required or desired to be
      given
      hereunder by any party shall be in writing and shall be validly given or made
      to
      another party if served either personally or, if deposited in the United States
      mail, certified or registered, postage prepaid, return receipt
      requested.  If such notice, demand or other communication shall be
      served personally; service shall be conclusively deemed made at the time of
      such
      personal service.  If such notice, demand or other communication is
      given by mail, service shall be conclusively deemed made at the time of the
      receipt by the party to whom such notice, demand or other communication is
      sent.
      Any and all notices, demands or other communications shall be delivered to
      the
      following addresses:

     

     

    
      	To
              Synthetech: 	Synthetech,
              Inc.
	 	
              1290
                Industrial Way

            
	 	
              P.O.
                Box 646

            
	 	
              Albany,
                OR  97321

            
	 	
              Attention:  Chief
                Executive Officer

            
	 	 
	With
              a copy to:	
              Perkins
                Coie LLP

            
	 	
              1120
                NW Couch Street, Tenth Floor

            
	 	
              Portland,
                OR  97209-4128

            
	 	
              Attention:  David
                Matheson

            
	 	 
	To
              Executive:	Joel
              D. Melka
	 	4105
              Sunset Hills Dr.
	 	Turner,
              OR 97392
	 	 


    

     

    (c)           No
      waiver of any term or provision of this Agreement shall be valid unless such
      waiver is in writing signed by the party against whom enforcement of the waiver
      is sought.  The waiver of any term or provision of this Agreement
      shall not apply to any subsequent breach of this Agreement.

     

    (d)           This
      Agreement may only be amended by a written instrument signed by Executive and
      an
      authorized officer of Synthetech.

     

    (e)           The
      provisions of this Agreement shall be construed and interpreted under the laws
      of the State of Oregon applicable to contracts made and to be performed in
      Oregon by persons domiciled in Oregon.  If any provision of this
      Agreement as applied to any party or to any circumstance should be adjudged
      by a
      court of competent jurisdiction to be void or unenforceable for any reason,
      the
      invalidity of that provision shall in no way affect (to the maximum extent
      permitted by law) the application of such provision under circumstances
      different from those adjudicated by the court, the application of any other
      provision of this Agreement, or the enforceability or invalidity of this
      Agreement as a whole.  Should any provision of this Agreement become
      or be deemed invalid, illegal or unenforceable in any jurisdiction by reason
      of
      the scope, extent or duration of its coverage, then such provision shall be
      deemed amended to the extent necessary to conform to applicable law so as to
      be
      valid and enforceable or, if such provision cannot be so amended without
      materially altering the intention of the parties, then such provision shall
      be
      stricken and the remainder of this Agreement shall continue in full force and
      effect.

     

    
      
         

      

      
        -4-

        
          

        

      

      
         

      

    

    (f)           This
      Agreement may be executed in more than one counterpart, each of which shall
      be
      deemed an original, but all of which together shall constitute but one and
      the
      same instrument.

     

    (g)           Each
      party acknowledges that such party does not rely upon any representation or
      statement by any other party to this Agreement or any such party's
      representatives concerning the subject matter of this Agreement, except as
      expressly set forth in the text of this Agreement.

     

    (h)           This
      Agreement, together with The Proprietary Information and Employee Inventions
      Agreement  and Section 8 of the Employment Agreement, set forth
      the entire understanding among the parties and their affiliates with respect
      to
      the subject matter hereof and, subject to the following sentence, supersede
      any
      prior agreements or understandings, express or implied, pertaining to the terms
      of Executive's employment with Synthetech and the termination of the employment
      relationship.  The parties hereby agree that on the Effective Date the
      Employment Agreement (other than Section 8, which shall survive the
      Effective Date), shall terminate and be of no further force or
      effect.

     

    (i)           All
      payments and benefits provided herein shall be less applicable deductions and
      withholdings.

     

    (j)           Except
      as set forth in Section 6(k) below, any controversy or claim arising out of
      or relating to this Agreement shall be fully and finally settled by arbitration
      in Portland, Oregon in accordance with the rules of the American Arbitration
      Association then in effect (the "AAA Rules"), conducted by one arbitrator
      who shall be an attorney in the Portland, Oregon area and shall be mutually
      agreed upon by the parties.  If the parties are unable to agree
      mutually as to the arbitrator within 30 days, each party shall, within 10 days
      after the end of such 30-day period, designate an attorney in the Portland,
      Oregon area who together shall mutually select a single arbitrator within 15
      days after the designation of the last such designee.  Such
      arbitration shall not be conducted by the American Arbitration
      Association.  The prevailing party shall be entitled to costs,
      expenses and reasonable attorneys' fees, and judgment upon the award rendered
      by
      the arbitrator may be entered in any court having jurisdiction
      thereof.

     

    (k)           The
      parties agree that, as the damages to either party resulting from a breach
      of
      obligations under Section 4 or 5 of this Agreement, The Proprietary
      Information and Employee Inventions Agreement or under Section 8 of the
      Employment Agreement are and would be impossible to determine with reasonable
      certainty, the parties shall have the right, in the event of a breach of any
      of
      the other party's obligations or covenants thereunder, to specific enforcement
      thereof.  The remedies for breach by either party of any
      representation, warranty, covenant or agreement hereunder shall be cumulative,
      and the right of specific performance granted hereby shall not be deemed to
      foreclose or limit any other remedy or right under this Agreement, The
      Proprietary Information and Employee Inventions Agreement or the Employment
      Agreement, at law or in equity.

     

    (l)           The
      parties agree, at any time and from time to time after the date hereof, to
      execute and deliver all such further agreements, documents or instruments,
      and
      promptly to take and forbear from all such action, as may be reasonably
      requested in order more effectively to confirm or carry out the provisions
      of
      this Agreement.

     

    (m)           In
      the event of any action to enforce or interpret this Agreement, the prevailing
      party shall be entitled to recover, in addition to all other costs, damages
      and
      awards, its reasonable costs and attorneys' fees, both at and in preparation
      for
      trial, and in any appeal or review (including in connection with any petition
      for review).

    


    
      
         

      

      
        -5-

        
          

        

      

      
         

      

    

    7.           Voluntary
      Execution of Agreement.  Executive warrants that (a) he has
      read this Agreement, (b) he has been advised to seek independent legal counsel
      regarding this Agreement, (c) he has had full opportunity to consult independent
      counsel prior to signing this Agreement, and (d) he understands the meaning
      and
      intent of this Agreement.  Executive further warrants that his
      decision to sign this Agreement has been made intelligently, knowingly and
      voluntarily, without duress or coercion and with the full intent of releasing
      the Released Parties of and from any and all claims.

     

    
      [Remainder
        of Page Intentionally Left Blank]

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

      
        
           

        

        
          -6-

          
            

          

        

        
           

        

      

    

     

    PLEASE
      READ CAREFULLY.  THIS AGREEMENT INCLUDES A RELEASE OF ALL KNOWN AND
      UNKNOWN CLAIMS.

    


    IN
      WITNESS WHEREOF, the parties have duly executed this SEPARATION AGREEMENT AND
      GENERAL RELEASE as of the dates indicated below.

     

    
      	EXECUTIVE	 	 	SYNTHETECH,
              INC.	 
	 	 	 	 	 
	
              /s/
                Joel D.
                Melka

            	 	 	
              /s/ Gary
                Weber

            	 
	
              JOEL
                D.
                MELKA

            	 	 	
              Name:
                Gary
                Weber

            	 
	
              Title 

            	 	 	
              Title:
                Vice
                President of Finance

            	 
	 	 	 	 	 
	
              Dated:  November
                11, 2007

            	 	 	Dated:
              November 20, 2007