EXHIBIT 10.40
SEPARATION AGREEMENT AND GENERAL CLAIMS RELEASE
This Separation Agreement and General Claims Release (hereinafter referred to as
"Agreement") is made and entered into by and between Xxxx Xxxxxx (hereinafter
referred to as "Xx. Xxxxxx") and Paradigm Genetics, Inc., a corporation
organized under the laws of the State of Delaware, its past and present owners,
subsidiaries, affiliates, successors, predecessors and assigns (hereinafter
referred to as "Paradigm").
WHEREAS, Xx. Xxxxxx is employed by Paradigm in the position of Vice
President of Agriculture and Nutrition; and
WHEREAS, the employment relationship between Xx. Xxxxxx and Paradigm will
terminate effective August 12, 2002; and
WHEREAS, Xx. Xxxxxx and Paradigm agree it is in the best interest of each
party that the terms and conditions of Xx. Xxxxxx'x separation from employment
be expressly set forth;
THEREFORE, in consideration of the mutual covenants made by Xx. Xxxxxx
and, for other good and valuable consideration, the receipt and sufficiency of
which are hereby expressly acknowledged by Xx. Xxxxxx and Paradigm, it is agreed
that:
1. Effective upon the execution of this Agreement, Xx. Xxxxxx will remain an
employee of Paradigm until August 12, 2002. Upon August 12, 2002, (the
"Separation Date"), Xx. Xxxxxx will perform no further services for Paradigm.
2. Subject to the full acceptance of this Agreement by Xx. Xxxxxx,
Paradigm agrees to extend the following benefits to Xx. Xxxxxx as consideration
for execution of this Agreement.
(a) Paradigm will pay Xx. Xxxxxx in a lump sum an amount equal to ten
(10) months salary (less applicable deductions and withholdings)
upon the Separation Date. Paradigm will reimburse Xx. Xxxxxx for
COBRA (for both medical and dental insurance) expenses for up to
twelve (12) months or until reemployed with a position providing
benefits.
(b) Paradigm will forgive Xx. Xxxxxx the required reimbursement of the
Relocation Package tier III as stated in his offer letter.
3. The parties agree that Paradigm has no prior legal obligations to provide
the additional monetary payments and other benefits specified in Paragraph 2
above, which are exchanged for Xx. Xxxxxx'x promises and agreements herein.
4. Contingent upon the payment of the amounts due to Xx. Xxxxxx on the
separation date, Xx. Xxxxxx hereby fully and expressly, knowingly, voluntarily
and unconditionally releases, acquits, and forever discharges Paradigm, its past
and present owners, stockholders, agents, directors, officers, employees,
divisions, subsidiaries and affiliates, predecessors, successors and assigns
(collectively referred to as Releasees) from any and all charges, complaints,
claims, liabilities, obligations, promises, agreements, controversies, damages,
actions, causes of action, rights, demands, losses, debts, expenses, and
attorney fees and cost of any nature whatsoever, known or
unknown, with regard to any transaction or event occurring prior to the date of
this Agreement. Xx. Xxxxxx agrees and understands that this release includes,
but is not limited to, all claims under Title VII of the Civil Rights act of
1964, 42 U.S.C. Section 2000e, et. seq., as amended. the Americans with
Disabilities Act of 1990, 42 U.S.C. Section 12101 et. seq., the Rehabilitation
act of 1973, 29 U.S.C. Section 701 et. seq., and all other federal or state laws
and statutes or common law claims arising out of, or relating to her employment
with Paradigm or with regard to any other transactions or events occurring prior
to the date of this Agreement. Xx. Xxxxxx further agrees that he will not file,
commence, prosecute or participate in any charge, claim, or lawsuit against
Paradigm or any Releasees based on or arising from the matters released herein.
Xx. Xxxxxx also agrees to indemnify and hold Paradigm harmless from any claims
and expenses Paradigm may incur as a result of any failure by Xx. Xxxxxx to pay
taxes which may be due as a result of the payment by Paradigm herein. Nothing in
this paragraph would preclude Xx. Xxxxxx from enforcing his rights under this
agreement.
5. Xx. Xxxxxx further agrees and understands that this Agreement includes,
but is not limited to, all claims under the Federal Age Discrimination and
Employment Act of 1967, as amended, 29 U.S.C. Section 621, et. seq., and any
other state or local laws concerning age discrimination, which may have arisen
prior to the date of this Agreement. Xx. Xxxxxx acknowledges that he has been
advised by Paradigm that he has up to twenty-one (21) days to consider this
Agreement and that he may revoke his acceptance of this Agreement within seven
(7) days of signing. Further, Xx. Xxxxxx acknowledges that he is advised to
consult with legal counsel of his own choice and at his own expense to seek
clarification of any of the Agreement's terms prior to signing this Agreement.
6. Xx. Xxxxxx agrees that he will not use for himself nor will he disclose
to any other person, business, company or corporation any trade secret, data,
knowledge or other proprietary information of or about Paradigm or its
affiliates. Further, in accordance with normal ethical and professional
standards, Xx. Xxxxxx will refrain from taking actions or making statements,
written or oral, which disparage or defame the goodwill or reputation of
Paradigm, its affiliates or their present/former directors, officers,
executives, and employees, or make statements which could adversely affect the
morale of other Paradigm employees. Furthermore, Paradigm agrees, when requested
by a prospective employer for Xx. Xxxxxx, will give a positive recommendation.
Any reference requests must be referred to the Vice President, Human Resources.
7. Xx. Xxxxxx agrees that the only consideration for signing this Agreement
are the terms stated herein and that no other promises or assurances of any kind
have been made to him by Paradigm, its attorneys, or any other person as
inducement to sign this Agreement. Therefore, this Agreement constitutes the
entire understanding of the parties, and no representation, promise or
inducement not included herein shall be binding upon the parties.
8. Xx. Xxxxxx agrees that he will not disclose matters relating to the
contents of this Agreement, including the amount of monetary payments and other
benefits, to anyone other than his spouse, attorneys, and accountants or
financial advisors for professional counseling. Xx. Xxxxxx also agrees that he
will take every precaution to ensure that his spouse, attorneys, accountants or
financial advisors maintain the confidentiality provisions of this Agreement
before any disclosure is made as permitted by this subparagraph.
9. Xx. Xxxxxx and Paradigm agree that neither this Agreement nor any of its
terms constitute any admission or wrongdoing by Paradigm and no past or present
wrongdoing on the part of Paradigm shall be implied by the payments specified
herein.
10. Xx. Xxxxxx understands and agrees that Paradigm's obligation to perform
under this Agreement is constituted upon Xx. Xxxxxx'x performance of all
agreements, releases, and
covenants to Paradigm as set forth herein. Xx. Xxxxxx acknowledges and
recognizes that his violation of this Agreement and its release or covenants
will cause Paradigm irreparable damage and Paradigm will have no adequate remedy
at law for such violation. Accordingly, Xx. Xxxxxx agrees that Paradigm shall be
entitled as a matter of right to an injunction out of any court of competent
jurisdiction, restricting any further violation of the Agreement or covenants
contained therein. Such right to injunctive relief shall be cumulative and in
addition to any other remedies Paradigm may have at law, including the right to
recover from Xx. Xxxxxx the entire amount paid to Xx. Xxxxxx hereunder. Nothing
in this Agreement shall be construed to abridge or limit in any way Xx. Xxxxxx'x
ability to enjoy the benefits of this Agreement, nor shall any terms of this
Agreement be construed to limit any resource, right or remedy at law or in
equity which Xx. Xxxxxx may have for breach thereof. Further, Xx. Xxxxxx hereby
agrees to indemnify and hold Paradigm and each of the Releasees harmless from
and against all loss, damage or expense, including without limitation,
attorneys' fees and costs incurred by Paradigm, or any Releasee arising out of
Xx Xxxxxx'x breach of this Agreement and its releases or covenants.
11. Xx. Xxxxxx acknowledges that he possesses sufficient education and
experience to fully understand the terms of this Agreement as it has been
written, the legal and binding effect of this Agreement, and the exchange of
monetary payments and other benefits for promises herein.
12. This Agreement shall endure to and be binding upon the parties hereto,
the respective heirs, legal representatives, successors, and assigns.
13. This Agreement is made and entered into in the State of North Carolina
and shall in all respects be construed, enforced, and governed in accordance
with the laws of North Carolina, except as federal laws may apply.
14. In the event that one or more of the provisions, or portions thereof, of
this Agreement is determined to be illegal or unenforceable, the remainder of
this Agreement shall not be affected thereby, and each remaining provision or
portion thereof shall continue to be valid and effective and shall be
enforceable to the fullest extent permitted by law.
15. The terms of this Agreement are contractual and not a mere recital.
16. Xx. Xxxxxx further states that he has carefully read the foregoing
Agreement, that the terms are fully understood, and that he voluntarily accepts
these terms and signs the same as his own free act.
In witness whereof, I have hereunto signed my name and affixed my seal this 9th
day of August 2002.
/s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
I acknowledge that I have been advised to consult with an attorney, at my own
expense, prior to signing this Agreement.
Xxxx Xxxxxx /s/ Xxxx Xxxxxx Date 8/9/02
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I acknowledge that I have been advised that I have up to twenty-one (21) days to
consider this Agreement and I may revoke my agreement within seven (7) days of
signing.
Xxxx Xxxxxx /s/ Xxxx Xxxxxx Date 8/9/02
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NOTARY PUBLIC
STATE OF NORTH CAROLINA
COUNTY OF DURHAM
I, Xxxxxxx Xxxxxx, a Notary Public for said County and State, do hereby certify
that Xxxx Xxxxxx personally appeared before me this day and acknowledged the due
executive of the foregoing instrument. Witness my hand and official seal, this
the 9th day of August, 2002.
/s/ Xxxxxxx Xxxxxx
expires 3/28/05
FOR PARADIGM GENETICS, INC. By: Xxxxx X. Xxxxx
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Title: Vice President Human Resources
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NOTARY PUBLIC
STATE OF NORTH CAROLINA
COUNTY OF DURHAM
I, Xxxxxxx Xxxxxx, a Notary Public for said County and State, do hereby certify
that Xxxxx X. Xxxxx personally appeared before me this day and acknowledged the
due executive of the foregoing instrument. Witness my hand and official seal,
this the 9th day of August, 2002.
/s/ Xxxxxxx Xxxxxx
expires 3/28/05
