EXHIBIT 10.38
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 Xxxxxxxxxx Xxxxxxxx
(hereinafter referred to as "Dr. Maroglou") 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, Dr. Maroglou is employed by Paradigm in the position of Vice
President, Project Management; and
WHEREAS, Dr. Maroglou has voluntarily resigned from Paradigm effective
March 1, 2002; and
WHEREAS, Dr. Maroglou and Paradigm agree it is in the best interest of each
party that the terms and conditions of Dr. Maroglou's voluntary resignation from
employment be expressly set forth;
THEREFORE, in consideration of the mutual covenants made by Dr. Maroglou
and, for other good and valuable consideration, the receipt and sufficiency of
which are hereby expressly acknowledged by Dr. Maroglou and Paradigm, it is
agreed that:
1. Effective upon the execution of this Agreement, Dr. Maroglou will remain an
employee of Paradigm until March 1, 2002. Upon March 1, 2002, (the "Separation
Date"), Dr. Maroglou will perform no further services for Paradigm.
2. Subject to the full acceptance of this Agreement by Dr. Maroglou, Paradigm
agrees to extend the following benefits to Dr. Maroglou as consideration for
execution of this Agreement.
a) Paradigm will continue to pay Dr. Maroglou his current salary and
provide to him his current healthcare benefits for up to twelve (12)
months (less applicable deductions and withholdings) following the
Separation Date. Dr. Maroglou must use diligent documented efforts to
obtain employment and will continue to receive salary and benefits set
forth above during this one (1) year period as long as he is unable to
secure comparable regular, full time employment and compensation in a
business, or consulting capacity of (6) six months or longer.
b) In case Paradigm is acquired or a change of control of ownership with
respect to Paradigm occurs at anytime during the 12 months as set
forth above, all amounts of salary and the cash equivalent of the cost
of the benefits that remain for the rest of the 12 months otherwise
due shall be due and payable to Dr. Maroglou in full.
c) Paradigm will pay Dr. Maroglou his 2001 bonus in full per the
compensation formula.
d) Paradigm will deliver a stock certificate for 13752 exercised and
vested shares.
e) Paradigm will issue a check for $14,369 for buy back of exercised but
unvested shares.
f) Paradigm will issue a check for $5,876.36 due for 62.68 hours of
accrued PTO
g) Paradigm will transfer the cell phone and mobile service currently in
Paradigm's name and in Dr. Maroglou's possession to Dr. Maroglou's
name as the next billing cycle of March 11, 2002 and Dr. Maroglou will
take full responsibility for any charges incurred on this cell phone.
h) Dr. Maroglou will submit a final expense report and paid in full.
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 Dr. Maroglou's promises and agreements herein. 4.
Dr. Maroglou agrees to not sell more than 5,000 shares of Paradigm Genetics,
Inc. stock per month during the time he is receives separation benefits as
outlined in this Agreement.
5. Dr. Maroglou 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. Dr. Maroglou
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 his employment with Paradigm or with regard to
any other transactions or events occurring prior to the date of this Agreement.
Dr. Maroglou 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. Dr. Maroglou also agrees
to indemnify and hold Paradigm harmless from any claims and expenses Paradigm
may incur as a result of any failure by Dr. Maroglou to pay taxes which may be
due as a result of the payment by Paradigm herein.
6. Dr. Maroglou 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. Dr. Maroglou 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, Dr. Maroglou 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.
7. Dr. Maroglou 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, Dr. Maroglou 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 Dr. Maroglou, that it will give a positive
recommendation. Any reference requests must be referred to the Vice President,
Human Resources.
8. Dr. Maroglou 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.
9. Dr. Maroglou 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. Dr. Maroglou 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.
10. Dr. Maroglou 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.
11. Dr. Maroglou understands and agrees that Paradigm's obligation to perform
under this Agreement is constituted upon Dr. Maroglou's performance of all
agreements, releases, and covenants to Paradigm as set forth herein. Dr.
Maroglou 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, Dr.
Maroglou 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 Dr. Maroglou the
entire amount paid to Dr. Maroglou hereunder. Nothing in this Agreement shall be
construed to abridge or limit in any way Dr. Maroglou's 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 Dr. Maroglou
may have for breach thereof. Further, Dr. Maroglou 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 Dr. Maroglou's breach of
this Agreement and its releases or covenants.
12. Dr. Maroglou 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.
13. This Agreement shall endure to and be binding upon the parties hereto, the
respective heirs, legal representatives, successors, and assigns.
14. 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.
15. 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.
16. The terms of this Agreement are contractual and not a mere recital.
17. Dr. Maroglou 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 2nd
day of March, 2002.
/s/ Xxxxxxxxxx Xxxxxxxx
-----------------------------------
Xxxxxxxxxx Xxxxxxxx
STATE OF NORTH CAROLINA
COUNTY OF DURHAM
SWORN TO AND SUBSCRIBED before me this 2nd day of March, 2002.
My Commission Expires: 3/28/05 Notary Public /s/ Xxxxxxx Xxxxxx
-------------------
FOR PARADIGM GENETICS, INC.
By: /s/ Xxxxx X. Xxxxx
---------------------------------------
Title: Vice President Human Resources
-----------------------------------
I acknowledge that I have been advised to consult with an attorney, at my own
expense, prior to signing this Agreement.
Xxxxxxxxxx Xxxxxxxx /s/ Xxxxxxxxxx Xxxxxxxx Date 3/2/02
-----------------------
I acknowledge that I have been advised that I have up to forty-five (45) days to
consider this Agreement and I may revoke my agreement within seven (7) days of
signing.
Xxxxxxxxxx Xxxxxxxx /s/ Xxxxxxxxxx Xxxxxxxx Date 3/2/02
------------------------
