Exhibit 10.37
[EXEGENICS LOGO]
January 10, 2003
Xx. Xxxxxx X. Xxxxxx
00000 Xxxxx Xxxx
Xxxxxx, XX 00000
Re: Separation from Employment with eXegenics, Inc.
Dear Xx. Xxxxxx:
The purpose of this letter agreement (the "Agreement") is to set forth the
terms of your separation from employment with eXegenics, Inc. (the "Company").
Payment of the Separation Pay and Benefits described below is contingent on your
agreement to and compliance with the terms and conditions of this Agreement, as
set forth below.
1. SEPARATION OF EMPLOYMENT. Your separation of employment with the
Company is effective January 10, 2003 (the "Separation Date"). You
acknowledge that from and after the Separation Date, you shall have no
authority to, and shall not, represent yourself as an employee or
agent of the Company.
2. SEPARATION PAY, BENEFITS AND STOCK OPTIONS. In exchange for the mutual
promises set forth in this Agreement, and following your execution of
this Agreement, the Company agrees to provide you with the following
Separation Pay and Benefits:
(a) The Company shall provide you with a lump sum payment of
$268,000, which includes payment of your current salary and car
allowance at your regular rate of pay through November 30, 2003.
This payment, less applicable taxes and withholdings (the
"Separation Pay") will be paid to you by January 14, 2003.
(b) You shall be entitled to continuation of your participation in
the Company's medical insurance coverage plan through November
30, 2003, to the same extent that such coverage is extended to
current Company employees, and on the same terms as such
insurance coverage is presently extended to you. You will have
the right, subject to all the requirements of COBRA, to continue
your medical and dental insurance thereafter pursuant to the
provisions of the Consolidated Omnibus Budget Reconciliation Act
of 1985.
(c) You shall receive payment for your accrued but untaken vacation
days as of your Separation Date in the gross amount of $19.230,
less applicable taxes and withholdings, which is payment in full
for 20 days.
(d) The Company has agreed that all of your unvested options will
vest as of your Separation Date, and the term of exercise for all
such options will be extended to three years from your Separation
Date, except for the options that will expire prior to December
31, 2005 as a result of the 10-year exercise period limitation. A
schedule of your outstanding options is attached hereto.
You acknowledge and agree that the Separation Pay, Benefits and agreement
regarding options are not otherwise due or owing to you under any the Company
employment agreement (oral or written) or the Company policy or practice and
that the Company owes you no other wages, payments, money or benefits other
than specially provided for in this Agreement.
3. OTHER AGREEMENTS/SURVIVAL OF OTHER AGREEMENTS.
(A) You have agreed that, at the time you execute this Agreement, you
shall resign as a member of the Board of Directors of the
Company, effective December 31, 2002. You will submit such
resignation in writing to the Board.
(B) The Company has agreed that you may utilize your office at the
Company for a period of six months commencing on the Separation
Date. You will have limited access to the Company computer
network; thus, you will need to make arrangements for an Internet
email address. You agree that you will not hold yourself out as
affiliated with the Company during the time you have use of the
Company office. Your use of the Company office is at your sole
risk and liability and shall not be covered under the Company
insurance policy in any respect.
(C) You expressly acknowledge and agree that all information relating
in any way to this Agreement, including the terms and amount of
financial consideration provided for in this Agreement, shall be
held confidential by you and shall not be publicized or disclosed
to any person (other than an immediate family member, legal
counsel or financial advisor, provided that any such individual
to whom disclosure is made agrees to be bound by these
confidentiality obligations), business entity or government
agency (except as mandated by state or federal law), except that
nothing in this paragraph shall prohibit you from participating
in an investigation with a state or federal agency if requested
by the agency to do so.
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(D) You further agree that you will not make any statements
that are professionally or personally disparaging about, or
adverse to, the interests of the Company (including its officers,
directors, employees and consultants) including, but not limited
to, any statements that disparage any person, product, service,
finances, financial condition, capability or any other aspect of
the business of the Company, and that you will not engage in any
conduct which could reasonably be expected to harm professionally
or personally the reputation of the Company (including its
officers, directors, employees and consultants).
(E) It is the Company's policy to provide no information regarding
its employees to third parties, and consistent with this policy,
in the event the Company is contacted by a prospective employer,
the Company will only provide information relating to your
position, title, period of employment and salary.
(F) You and the Company acknowledge that your Employment Agreement
with the Company dated March 1, 1992 is hereby terminated in all
respects except that paragraphs 6, 7, and 8 shall survive in all
respects. Notwithstanding the foregoing, the Company understands
that you may make a proposal to the Company for the purchase of
certain Company assets. The Company agrees that such a proposal
shall not be deemed to violate any of your surviving obligations
under the Employment Agreement.
4. YOUR RELEASE OF CLAIMS. You hereby agree and acknowledge that by
signing this Agreement and accepting the Separation Pay and
Benefits discussed in Section 2, and for other good and valuable
consideration, you are waiving your right to assert any and all
forms of legal Claims against the Company(1/) of any kind
whatsoever, whether known or unknown, arising from the beginning
of time through the date you execute this Agreement (the
"Execution Date"). Your waiver and release herein is intended to
bar any form of legal claim, charge, complaint or any other form
of action (jointly referred to as "Claims") against the Company
seeking any form of relief including, without limitation,
equitable relief (whether declaratory, injunctive or otherwise),
the recovery of any damages, or any other form of monetary
recovery whatsoever (including, without limitation, back pay,
front pay, compensatory damages, emotional distress damages,
punitive damages, attorneys fees and any other costs) against the
Company, for any alleged action, inaction or circumstance
existing or arising through the Execution Date.
____________________
1/ For purposes of this paragraph, the Company includes the Company, its
predecessors and successors, and any of its divisions, affiliates (which means
all persons and entities directly or indirectly controlling, controlled by or
under common control with the Company), subsidiaries and all other related
entities, and its and their directors, officers, employees, trustees, agents,
successors and assigns.
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Without limiting the foregoing general waiver and release, you specifically
waive and release the Company from any Claim arising from or related to your
employment relationship with the Company or the termination thereof, including,
without limitation:
** Claims under any state or federal discrimination, fair employment
practices or other employment related statute, regulation or executive
order prohibiting discrimination or harassment based upon any
protected status including, without limitation, race, national origin,
age, gender, marital status, disability, veteran status or sexual
orientation.
** Claims under any other state or federal employment-related statute,
regulation or executive order relating to wages, hours or any other
terms and conditions of employment.
** Claims under the Federal Age Discrimination in Employment Act.
** Claims under any state or federal common law theory including, without
limitation, wrongful discharge, breach or express or implied contract,
promissory estoppel, unjust enrichment, breach of a covenant of good
faith and fair dealing, violation of public policy, defamation,
interference with contractual relations, intentional or negligent
infliction of emotional distress, invasion of privacy,
misrepresentation, deceit, fraud or negligence.
** Any other Claim arising under state or federal law, including any
statutory or common law entitlement to attorneys' fees or costs.
Notwithstanding the foregoing, this section does not release the Company
from any obligation expressly set forth in this Agreement. You acknowledge and
agree that, but for providing this waiver and release, you would not be
receiving the economic benefits being provided to you under the terms of this
Agreement.
IT IS THE COMPANY'S DESIRE AND INTENT TO MAKE CERTAIN THAT YOU FULLY
UNDERSTAND THE PROVISIONS AND EFFECTS OF THIS AGREEMENT. TO THAT END, YOU HAVE
BEEN ENCOURAGED AND GIVEN THE OPPORTUNITY TO CONSULT WITH LEGAL COUNSEL FOR THE
PURPOSE OF REVIEWING THE TERMS OF THIS AGREEMENT.
ALSO, CONSISTENT WITH THE PROVISIONS OF CERTAIN DISCRIMINATION LAWS,
NOTHING IN THIS RELEASE SHALL BE DEEMED TO PROHIBIT YOU FROM CHALLENGING THE
VALIDITY OF THIS RELEASE UNDER APPLICABLE DISCRIMINATION LAWS (THE
''DISCRIMINATION LAWS'') OR FROM FILING A CHARGE OR COMPLAINT OF
EMPLOYMENT-RELATED DISCRIMINATION WITH THE EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION (''EEOC'') OR APPLICABLE STATE AGENCY, OR FROM PARTICIPATING IN ANY
INVESTIGATION OR PROCEEDING CONDUCTED BY THE EEOC. FURTHER, NOTHING IN THIS
RELEASE OR AGREEMENT SHALL BE DEEMED TO LIMIT THE COMPANY'S RIGHT TO SEEK
IMMEDIATE DISMISSAL OF SUCH CHARGE OR COMPLAINT ON THE BASIS THAT YOUR SIGNING
OF THIS AGREEMENT CONSTITUTES A FULL
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RELEASE OF ANY INDIVIDUAL RIGHTS UNDER THE DISCRIMINATION LAWS, OR TO SEEK
RESTITUTION TO THE EXTENT PERMITTED BY LAW OF THE ECONOMIC BENEFITS PROVIDED TO
YOU UNDER THIS AGREEMENT IN THE EVENT THAT YOU SUCCESSFULLY CHALLENGE THE
VALIDITY OF THIS RELEASE AND PREVAIL IN ANY CLAIM UNDER THE DISCRIMINATION LAWS.
5. MATTERS RELATING TO YOUR RELEASE OF CLAIMS.
(a) You acknowledge that you have been advised to consult
with an attorney regarding this Agreement and that you have been
given an opportunity to discuss this Agreement with an attorney.
You also acknowledge that you have been given at least twenty-one
(21) calendar days from receipt of this Agreement to consider and
decide whether or not to enter into this Agreement. You further
acknowledge that you have had reasonable and sufficient time to
review this Agreement, discuss it with an attorney, and are
voluntarily signing it without duress or coercion on the date
indicated below. You acknowledge that you have read this
Agreement in its entirety and understand its meaning and effect.
(b) This Agreement will not become effective or enforceable until
the eighth calendar day after you have signed it (such eighth
calendar day is the "Effective Date"). You understand that if you
wish to revoke this Agreement for any reason or for no reason at
all, you may do so during the first seven (7) calendar days
following your signing it by delivering written notice of such
revocation to XxXxxx X. Xxxxxxxxx, Director HR & Administration
for the Company, at 0000 Xxxxxxxx Xxx, Xxxxxx, Xxxxx 00000 or by
telecopying such written notice to Xx. Xxxxxxxxx at (214)
353-0294. You also understand that if no such notice of
revocation is received by the date and time indicated, this
Agreement shall become effective and enforceable as of the eighth
day following your signing it.
6. ENTIRE AGREEMENT/MODIFICATION/WAIVER/CHOICE OF
LAW/ENFORCEABILITY. You acknowledge and agree that, with the
exception of the terms of Employment Agreement that are specific
above, and the terms of any stock option agreements, this
Agreement supersedes any and all prior or contemporaneous oral
and/or written agreements between you and the Company, and sets
forth the entire agreement between you and the Company. No
variations or modifications hereof shall be deemed valid unless
reduced to writing and signed by the parties hereto. The failure
of the Company to seek enforcement of any provision of this
Agreement in any instance or for any period of time shall not be
construed as a waiver of such provision or of the Company's right
to seek enforcement of such provision in the future. This
Agreement shall be governed by and construed in accordance with
the laws of Texas, without giving effect to conflict of law
principles. You agree that any action, demand, claim or
counterclaim relating to the terms and provisions of this
Agreement, or to its breach, shall be commenced in Texas in a
court of competent jurisdiction, and you further acknowledge that
venue for such actions shall lie exclusively in Texas and that
material witnesses
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and documents would be located in Texas. Both parties hereby waive and
renounce in advance any right to a trial by jury in connection with
such legal action. The provisions of this Agreement are severable, and
if for any reason any part hereof shall be found to be unenforceable,
the remaining provisions shall be enforced in full.
By executing this Agreement, you are acknowledging that you have been
afforded sufficient time to understand the terms and effects of this Agreement,
that your agreements and obligations hereunder are made voluntarily, knowingly
and without duress, and that neither the Company nor its agents or
representatives have made any representations inconsistent with the provisions
of this Agreement.
eXegenics, Inc.
By: XXXXXX X. XXXXX
-----------------------------
Xx. Xxxxxx X. Xxxxx
Its: President & CEO
Dated: 1/10/03
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Confirmed, Agreed and Acknowledged:
XXXXXX X. XXXXXX
------------------------------------
Xx. Xxxxxx X. Xxxxxx
Date Executed: 1-10-03
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