Exhibit 10.5





Exhibit 10.5




SEPARATION AGREEMENT AND GENERAL RELEASE




THIS SEPARATION AGREEMENT AND GENERAL RELEASE (“Agreement”) is entered into by and between
Unilife Corporation, its subsidiaries, including Unilife Medical Solutions Limited, Unilife Medical
Solutions, Inc. and Integrated BioSciences, Inc. (“IBS”), affiliates, successors, and assigns
(collectively “Unilife” or “Company”) and Bernhard Opitz (“Opitz”).



WHEREAS, Opitz has been employed by Unilife pursuant to an Employment Agreement (“Employment
Agreement”) entered into as of November 10, 2009; and



WHEREAS, Opitz and Unilife wish to end their employment relationship on mutually agreeable
terms, as set forth in this Agreement.



NOW, THEREFORE, in consideration of the mutual agreements and covenants hereinafter set forth,
and intending to be legally bound, the parties agree as follows:



1. Termination of Employment. Unilife has eliminated the position of Senior Vice
President, Operations. Opitz has resigned from all positions with Unilife, including director and
officer positions, which resignation Unilife has accepted, effective as of December 31, 2010 (the
“Termination Date”) on which date Opitz’s employment will terminate. Prior to the Termination
Date, the terms of the Employment Agreement shall remain in effect. Through the Termination Date,
Opitz will continue to receive his regular base salary, as well as continue to participate in
Unilife’s employee benefit plans. Effective immediately and through the Termination Date (the
“Transition Period”), Opitz will be expected to cooperate and assist with the transition of
functions and responsibilities, as may be requested by the Chief Executive Officer, General
Counsel, or Vice President, Human Resources of the Company. The Termination Date shall be
construed as the date on which Opitz incurs a “separation from service” for purposes of Section
409A of the Internal Revenue Code of 1986, as amended. Unilife will communicate that Opitz’s
resignation was triggered by the elimination of his position as Senior Vice President,
Operations.


 


 









 





2. Purpose. This Agreement is entered into for the purpose of complying with the
terms of the Employment Agreement and providing Opitz with certain severance benefits while
avoiding future litigation and resolving any and all claims or differences arising out of Opitz’
employment or the termination thereof.



3. Severance Benefits. Unilife will pay Opitz, on the first payroll date after the
Termination Date, any unused, accrued 2010 vacation. In addition, for consideration of the
promises set forth in this Separation Agreement and General Release, Opitz will be eligible to
receive the following payments (the “Severance Payments”) from Unilife, subject to the terms and
conditions set forth in this Agreement:




	 	a.	 	A cash severance benefit in the aggregate gross amount of One
Hundred Fifty Seven Thousand Five Hundred Dollars ($157,500.00), less all
appropriate withholdings and deductions required by law. This amount
represents nine (9) months of Opitz’s base salary as in effect on the
Termination Date. This cash severance benefit will be paid out in
substantially equal installments over a period of nine (9) months (the
“Severance Period”), in accordance with Unilife’s standard payroll
procedures. These payments will begin on the first payroll date following
the Effective Date, as defined in Section 16(d) of this Agreement.







	 	b.	 	Reimbursement, less all appropriate withholdings and deductions
required by law, of Opitz’s monthly health insurance premiums incurred
during the nine (9) month period that commences on the Termination Date, if
Opitz is a participant in Unilife’s health insurance plan as of the
Termination Date and he timely elects coverage under the Consolidated
Omnibus Budget Reconciliation Act (“COBRA”).






The Severance Payments represent the entire extent of any and all money due to Opitz and is
consideration for the execution of this Agreement and releasing any and all claims against Unilife
arising up to and including the date of execution of this Agreement. Unilife’s obligations to pay
the Severance Payments shall immediately terminate upon Opitz’s material breach of this Agreement.


 


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4. Unemployment Compensation. For consideration of the promises set forth in this
Agreement, Unilife agrees that it will not contest Opitz’s application for unemployment
compensation benefits. Opitz acknowledges that eligibility for such benefits is not determined by
Unilife.



5. Other Employee Benefits. Opitz acknowledges the receipt from Unilife of all
compensation earned and accrued through the date hereof. Except as expressly set forth in this
Agreement, Opitz confirms and acknowledges that he will not be entitled to any additional employee
benefits, bonus payments, additional severance pay, or other payments whatsoever, from Unilife
following the Effective Date.



6. Admission. Nothing contained herein shall be construed as an admission by Unilife
of any liability of any kind to Opitz; any liability is expressly denied. Further, nothing
contained herein shall be construed as an admission by Opitz of any liability of any kind to
Unilife; any liability is expressly denied.



7. Non-Disclosure of Confidential Information. Opitz acknowledges that, in the course
of his employment with Unilife, he may have acquired access to and became acquainted with certain
information about the professional, business, technological and financial affairs of Unilife that
may be non-public, competitively sensitive, confidential and proprietary in nature (“Confidential
Information”). Confidential Information includes, but is not limited to, manufacturing processes
or techniques, information concerning its customers, suppliers, products, operations, safety or
industrial hygiene practices, business plans and objectives, management practices, marketing plans,
software and computer programs, data processing systems and information contained therein,
inventions, product and other designs, technologies, financial statements, policies and any other
trade secrets or confidential or proprietary information of or about Unilife that is not already
available to the public. Opitz agrees that he will not make any statements or communications to
any individual or entity, including but not limited to any current or former employee or consultant
of Unilife, concerning the Company’s
Confidential Information, unless such individual or entity already possesses such Confidential
Information from a source other than Opitz or unless such Confidential Information is already
available to the public. Any breach of this provision shall be deemed a material breach of this
Agreement.


 


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8. Return of Property. No later than the Termination Date, Opitz agrees to return
promptly to Unilife any and all things in his possession and control that are owned or leased by
Unilife or otherwise relate to Unilife’s business, including but not limited to all computer
equipment, telephone equipment, books, manuals, memoranda, policy statements, correspondence,
minutes of meetings, agendas, interoffice communications, forecasts, analyses, working papers,
charts, expense reports, ledgers, journals, financial statements, data compilations, records,
reports, notes, computer disks, drives, documents and software, contracts, customer lists, keys,
advertising and marketing materials, and other documents, proprietary information and equipment
furnished to or prepared by Opitz in the course of or incident to his employment with Unilife
(except the Blackberry telephone provided to him by Unilife, which Optiz will transfer into his
name and assume responsibility for all charges no later than January 31, 2011). No later than the
Termination Date, Opitz shall promptly deliver to Unilife any documents, files and/or records
containing Confidential Information, as that term is defined in this Agreement, that are in his
possession. Opitz agrees that he will not engage in any activities that might alter, modify or
destroy any property, equipment of Confidential Information that is in his possession.



9. General Release and Waiver of Claims. In consideration of the monetary benefits
extended to Opitz under the terms of this Agreement, Opitz agrees for himself, his heirs,
executors, administrators, successors and assigns to forever release and discharge Unilife and its
parents, subsidiaries, affiliates, officers, directors, agents, contractors, consultants and
employees, past and present, collectively or individually (the “Released Parties”), from any and
all claims, demands, causes of actions, losses and expenses of every nature whatsoever,
known or unknown, arising up to and including the date on which Opitz executes this Agreement,
including but not limited to any claims arising out of or in connection with his employment or
separation from employment with Unilife. These claims include, but are not limited to, breach of
express or implied contract, intentional or negligent infliction of emotional harm, libel, slander,
claims under the Age Discrimination in Employment Act (ADEA), Title VII of the Civil Rights Act of
1964, as amended, the Americans With Disabilities Act, the Family and Medical Leave Act of 1993
(“FMLA”), the Employee Retirement Income Security Act of 1974, as amended, the Pennsylvania Human
Relations Act, the Pennsylvania Wage Payment Collection Law (as well as any claims related to
unpaid wages, bonuses or benefits), any tort claim, or any other federal, state or municipal
statute or ordinance relating to employment or unlawful discrimination, including any wrongful
discharge claim which may be cognizable under the laws of any state or country; but do not include
rights to previously vested stock options, reimbursement of allowable expenses incurred through the
Termination Date, or any other rights or claims that, as a matter of law, cannot be released or
waived.


 


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Opitz warrants and represents that he has not, prior to signing this Agreement, filed any form
of claim, charge, or complaint against Unilife or any entity released above. Except with respect
to any lawsuit to enforce his rights under this Agreement, Opitz agrees not to file, join in or
prosecute any lawsuits against the Company or any of the other Released Parties, concerning any
matter, act, occurrence, or transaction which arose on or before the date he signs this Agreement.
By signing this Agreement, Opitz also expressly acknowledges and represents that he (i) has
suffered no injuries or occupational diseases arising out of or in connection with his employment
with Unilife; (ii) has received all wages to which he was entitled as an employee of Unilife; (iii)
has received all leave to which he was entitled under the FMLA; and (iv) is not currently aware of
any facts or circumstances constituting a violation of the FMLA or the Fair Labor Standards Act.
Opitz further understands that the General Release and
Waiver of Claims set forth above will completely bar any recovery or relief obtained on his
behalf, whether monetary or otherwise, by any person or entity with respect to any of the claims
that he has released.



Further, in consideration of Opitz’s foregoing claims pursuant to his Employment Agreement,
Unilife agrees for itself and its parents, subsidiaries, affiliates, officers, directors, agents,
contractors, consultants and employees, past and present, to forever release and discharge Opitz
and his heirs, executors, administrators, successors and assigns, collectively or individually,
from any and all claims, demands, causes of actions, losses and expenses of every nature
whatsoever, known or unknown, arising up to and including the date on which Unilife executes this
Agreement.


 


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10. Further Covenants.




	 	(a)	 	The parties to this Agreement agree that they will take no
action that would cause any embarrassment or humiliation to the other or
otherwise cause or contribute to the other being held in disrepute by the
general public or its employees, customers, prospective employers or
suppliers. As part of this covenant, the parties to this Agreement agree
that they will not make statements to any third parties about each other
and/or their affiliates, products, owners, employees, or representatives
that are in any way disparaging or negative. This paragraph shall not be
construed to prohibit Opitz or Unilife from cooperating with any government
agency in an official investigation or to prohibit Unilife from making the
public filings required when an executive officer resigns or otherwise
required by law or corporate by-laws. Any breach of this provision shall
be deemed a material breach of this Agreement.







	 	(b)	 	To the extent that Opitz is not a potentially adverse party
and/or to the extent that the issues do not potentially subject him to
criminal charges or penalties, Opitz agrees that he will provide reasonable
assistance and cooperation with Unilife and/or other persons engaged by
Unilife in the investigation, prosecution, and/or defense of any threatened
or asserted litigation, or investigations initiated by or involving Unilife
or any person or entity affiliated with it, and truthfully testify in
connection with any such investigation or proceeding. Opitz understands
that he was employed as a management representative of the Company, and
except as specifically required by law, he will not assist any person or
entity in any matter adverse to the Company without first providing written
notice.




 


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11. Non-Solicitation and Agreement Not To Compete. Opitz remains bound by the
non-solicitation and non-compete provisions of his Employment Agreement, which are restated herein.
For a period of two (2) years following termination of employment, Opitz will not, directly or
indirectly:




(i) render services to, become employed by, be engaged as a consultant by, own, or
have a financial or other interest in (either as an individual, partner, joint
venture, owner, manager, employee, partner, officer, director, independent
contractor, or other similar role) any business that is engaged in any business
activity that is in competition with the activities of Unilife.




(ii) induce, offer, assist, encourage, or suggest that another business or
enterprise offer employment to or enter into a consulting arrangement with any
individual who is employed by Unilife, or induce, offer, assist, encourage, or
suggest that any Unilife employee terminate his or her employment with Unilife, or
accept employment with any other business or enterprise; provided however, Opitz may
employ a Unilife employee who responds to a general advertisement for positions with
Opitz’s future employer without violating this provision.



In the event that Opitz commits any breach of these provisions, Opitz acknowledges that
Unilife would suffer substantial and irreparable harm and damages. Accordingly, Opitz hereby
agrees that in such event, Unilife shall be entitled to temporary and/or permanent injunctive
relief, without the necessity of proving damage, to enforce the provisions of this Section, all
without prejudice to any and all other remedies that Unilife may have at law or in equity and that
Unilife may elect or invoke. Opitz agrees that if any of the provisions of this Section are or
become unenforceable, the remainder hereof shall nevertheless remain binding upon him to the
fullest extent possible, taking into consideration the purposes and spirit of this agreement. Any
invalid or unenforceable provision is to be reformed to the maximum time, geographic and/or
business limitations permitted by applicable laws, so as to be valid and enforceable.



Opitz expressly acknowledges and agrees that the restrictive covenants set forth in Section 7
and Section 11 of this Agreement are absolutely necessary to protect the legitimate business
interests of Unilife, because he is employed in a position of trust and confidence and is provided
with extensive access to Unilife’s most confidential and proprietary trade secrets, and has
significant involvement in important business relationships, which constitute the goodwill of
Unilife. Opitz further agrees and acknowledges that the restrictive covenants set forth in Section
7 and Section 11 of this Agreement are reasonable, will not restrict him from earning a
livelihood following the termination of employment, and are intended by the parties to be
enforceable following termination of employment for any reason.


 


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In the event that Unilife must bring legal action to enforce or seek a remedy for any breach
of the provisions of Section 7 or Section 11 of this Agreement and Opitz is found by a court to
have breached any of these provisions, Opitz agrees to reimburse Unilife for any and all expenses,
including attorneys’ fees and court costs, incurred by it in enforcing the terms of these Sections
of the Agreement. In addition, Opitz remains bound by the Proprietary Information and Inventions
Agreement that he entered into. Any breach of these provisions will constitute a material breach
of this Agreement.



12. Other Agreements. This Agreement represents the entire agreement between the
parties. It may not be modified or superseded except in writing, signed by both parties and
referencing this Agreement. Opitz’s stock options shall be governed by the terms of his stock
option grants and the corresponding plan document.



13. Severability and Non-waiver. Each provision of this Agreement is severable and
distinct from, and independent of, every other provision hereof. If one provision hereof is
declared void, the remaining provisions shall remain in full force and effect. Any provision of
this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective only to the extent of such prohibition or unenforceability without
invalidating or affecting the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction. A waiver of any provision of this Agreement by either party shall not
prevent either party from enforcing that provision or any other provision hereof.



14. Amendment. This Agreement may not be modified or amended except by a written
document signed by both Opitz and an authorized representative of Unilife.


 


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15. Governing Law. This Agreement shall be construed in accordance with and be
governed by the laws of the Commonwealth of Pennsylvania without giving effect to provisions
thereof regarding conflict of laws.




16. Acknowledgements. Opitz represents and acknowledges to Unilife as follows:




	 	a.	 	that he has been advised to consult with an attorney of his
choosing concerning the legal significance of this Agreement;







	 	b.	 	that he has been offered twenty-one (21) days to review and
consider all of the terms and provisions of this Agreement, and he has had
ample opportunity to review all of the provisions of this Agreement;







	 	c.	 	that the Severance Payments offered under this Agreement shall
be forfeited if he does not sign this Agreement within the twenty-one (21)
day review period described above;







	 	d.	 	that he is competent to understand the content and effect of
this Agreement and he has entered into this Agreement knowingly, by his
free will and choice without any compulsion, duress, or undue influence
from anyone; and







	 	e.	 	that he has been advised that during the seven (7) day period
following his execution of this Agreement, he may revoke his acceptance of
this Agreement by delivering written notice of revocation to J. Christopher
Naftzger, Esq., Unilife Medical Solutions, 250 Cross Farm Lane, York, PA
17406 and that this Agreement shall not become effective or enforceable
until after the revocation period has expired. This Agreement shall become
effective on the eighth day after Opitz’ execution and delivery of this
Agreement to Unilife (the “Effective Date”) if he does not duly revoke his
acceptance of this Agreement in the manner described herein.






IN WITNESS WHEREOF, Opitz has hereunto set his hand, and Unilife has caused this Agreement to
be executed by its duly authorized agent, all as of the dates set forth below.




EXECUTED in multiple copies, each having the same effect as the original.



	 	 	 	 	 	 	 	 	 
	Witness:

	 	/s/ Stefanie Opitz
 

	 	 	 	/s/ Bernhard Opitz
 

BERNHARD OPITZ
	 	 
	 
	 	 	 	 	 	 	 	 
	Date:

	 	12-31-2010	 	 	 	 	 	 





 


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	 	UNILIFE CORPORATION

 	 
	 	By:  	/s/ Cynthia M. Lighty
 	 
	 	 	Name:  	Cynthia M. Lighty 	 
	 	 	Title:  	Vice President, Human Resources
	 
	 	
Date: 31/December/2010 	 




 


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