Exhibit 10.5
MACROCHEM CORPORATION
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000-0000
September 12, 2005
BY HAND DELIVERY
Xx. Xxxxx X. Xxxxxx
Vice President and General Counsel
c/o MacroChem Corporation
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000-0000
Dear Xxxxx:
The purpose of this letter is to confirm the agreement between you and
MacroChem Corporation ("MACROCHEM" or the "COMPANY") concerning your remaining
employment, your separation from the Company, and your severance arrangements,
as follows:
1. TRANSITION PERIOD. From the date of this Agreement until November 30, 2005
(the "SEPARATION DATE"), you will continue to be employed by the Company in
your current position (the "TRANSITION PERIOD"). You agree not to resign from
your employment prior to November 30, 2005, without the prior written consent
of the Company, which consent will not be unreasonably withheld.
2. SALARY. Within five (5) business days of the effective date of this
Agreement, as defined below, you will receive a lump sum payment equal to
$25,299.96, which amount consists of (i) $19,384.96 representing pay, at your
rate of pay in effect on August 31, 2005, for the vacation days you have earned
but not used as of the date hereof, PLUS (ii) $5,915.00 representing base
salary, which as of September 1, 2005 shall be $455 per week, for the period
beginning September 1, 2005 and ending November 30, 2005 (the "SALARY
PAYMENT").
3. DUTIES DURING THE TRANSITION PERIOD. During the Transition Period, you
agree to cooperate fully with the Company and to devote to the Company your
best efforts, professional judgment, skill and knowledge, and such professional
time as is necessary to assist the Company in winding down and selling its
business and assets. The Company acknowledges that you will be actively seeking
new employment during the Transition Period and agrees that you may arrange
reasonable time off to pursue such new employment, provided that it does not
interfere with your obligations to the Company under this Agreement .
4. SEVERANCE. In consideration of your acceptance of this Agreement, the
Company will provide you, within five business days of the effective date of
this Agreement, as defined below, with a lump sum severance payment equivalent
to nine (9) months of your base salary in effect on August 31, 2005, LESS an
amount equal to the Salary Payment.
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5. HEALTH AND DENTAL BENEFIT. Subject to your meeting in full your obligations
under this Agreement and executing in a timely manner (and without revocation)
the release of claims attached hereto as EXHIBIT A following, but within
forty-five days of, the Separation Date (or following, but within 45 days of,
such earlier date as may be specified by the Company), the Company will pay you
a lump sum payment on the Separation Date equal to $14,781.60 (the "BENEFIT
PAYMENT"). The Benefit Payment shall be made to you within 5 days of the later
of (i) the effective date of said release of claims (that is, the day after the
expiration of the seven day revocation period provided for in the release) and
(ii) the Company's receipt of a signed release of claims.
6. DEDUCTIONS. All payments by the Company under this Agreement will be
reduced by all taxes and other amounts that the Company is required to withhold
under applicable law and all other deductions authorized by you.
7. ACKNOWLEDGMENT OF FULL PAYMENT, STATUS OF BENEFITS AND OTHER MATTERS.
(a) You agree that except as provided under this Agreement, no further
compensation is owed to you, whether for services provided to the Company
or otherwise. Without limiting the generality of the preceding sentence,
you also acknowledge that you will not be eligible to receive any further
bonus or other incentive compensation. The parties expressly agree that the
Executive Employee Agreement between you and the Company dated as of
December 17, 2004 (the "EMPLOYMENT AGREEMENT"), and the Severance Agreement
between you and the Company dated as of October 25, 2002, and as amended as
of December 17, 2004 (as amended, the "SEVERANCE AGREEMENT) are terminated
and of no further force or effect as of September 1, 2005, and that payment
by the Company in accordance with the terms of this Agreement shall be in
full and complete satisfaction of any and all compensation that may be due
to you in the nature of severance or separation pay, whether pursuant to
the Employment Agreement, the Severance Agreement or otherwise, and that
you shall have no claim to compensation or benefits under the Employment
Agreement, Severance Agreement or any other agreement or arrangement with,
or plan, policy program or practice of, the Company providing compensation
or benefits in the event of termination of employment except as expressly
set forth in this Agreement.
(b) You will not continue to earn vacation or other paid time off after the
date hereof. If you were participating immediately prior to the Transition
Period then, during the Transition Period, the Company will contribute the
full amount of the premium cost of participation for you and your eligible
dependents in the Company's group health and dental plans. Except as
expressly provided herein or by federal or state law, your participation in
all employee benefit plans and programs of the Company will end as of the
Separation Date, in accordance with the terms of those plans and programs.
8. STOCK OPTIONS. Your rights and obligations with respect to any stock
options granted to you by the Company that are exercisable on the Separation
Date shall be governed by the applicable stock option grants, agreements and
plans and other restrictions or provisions generally applicable to options
granted to Company employees, as these may be amended from time to time by the
Company. All stock options, if any, granted to you by the Company which are not
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exercisable on the Separation Date will be forfeited and cancelled as of that
date.
9. CONFIDENTIAL INFORMATION. Notwithstanding anything to the contrary herein,
you and the Company hereby agree the Confidential Information, Inventions and
Noncompetition Agreement, dated as of December 17, 2004, by and between you and
the Company (the "NON-COMPETITION AGREEMENT"), shall remain in full force and
effect following the execution of this Agreement.
10. NON-DISPARAGEMENT AND CONFIDENTIALITY. You agree that you will not
disparage or criticize the Company or its business, product candidates,
officers, directors or employees, and that you will not otherwise do or say
anything that could harm the interests or reputation of the Company or its
employees.
11. RETURN OF DOCUMENTS. In signing this Agreement, you give the Company
assurance that you will return to it, no later than the Separation Date, any
and all documents, materials and information related to the business, whether
present or otherwise, of the Company and all keys and other property of the
Company in your possession or control. Further, you agree that after the
Separation Date, you will not, for any purpose, attempt to access or use any
computer or computer network or system of the Company, including without
limitation their electronic mail systems. Further, you acknowledge that you
have disclosed to the Company all passwords necessary or desirable to enable
the Company to access all information which you have password-protected on its
computer network or system.
12. ENTIRE AGREEMENT. This Agreement and the Noncompetition Agreement contain
the entire agreement between you and the Company and replace all prior and
contemporaneous agreements, communications and understandings, whether written
or oral, with respect to your employment and its termination and all related
matters, including, without limitation, the Employment Agreement and the
Severance Agreement.
13. RELEASE OF CLAIMS.
(a) In order to be certain that this Agreement will resolve any and all
concerns that you might have, the Company requests that you carefully
consider its terms, including the release of claims set forth below, and,
in that regard encourages you to seek the advice of an attorney before
signing this Agreement.
(b) For and in consideration of the special pay and benefits to be provided
to you under this Agreement, and as a condition of your receipt of such
benefits, to which you would not otherwise be entitled, you, on your own
behalf and on behalf of your heirs, beneficiaries, executors,
administrators, representatives and assigns, and all others connected with
or claiming through you, hereby release and forever discharge the Company
and all of its past, present and future officers, directors, shareholders,
general and limited partners, joint venturers, members, managers,
employees, agents, predecessors, successors and assigns, and all others
connected with any of them, and any and all benefit plans maintained by the
Company and all past, present and future representatives, agents, trustees,
fiduciaries and administrators of such plans, both individually and in
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their official capacities, from any and all causes of action, rights or
claims of any name or nature whatsoever (all, collectively, "Claims"),
whether known or unknown, which you had in the past, now have, or might now
have, through the date on which you sign this Agreement, including without
limitation Claims in any way resulting from, arising out of or connected
with your employment or its termination or pursuant to any federal, state
or local law, regulation or other requirement, including without limitation
Title VII of the Civil Rights Act of 1964, the Age Discrimination in
Employment Act, the Americans with Disabilities Act and the fair employment
practices statutes of the state or states in which you have provided
services to the Company.
(c) This Agreement, including the release of claims set forth the paragraph
immediately above, creates legally binding obligations and the Company
therefore encourages and advises you to consult an attorney before signing
this Agreement. In signing this Agreement, you give the Company assurance
that you have signed it voluntarily and with a full understanding of its
terms; that you have had sufficient opportunity, before signing this
Agreement, to consider its terms and to consult with an attorney, if you
wished to do so, or to consult with any other legal or tax advisors or
members of your immediate family; and that, in signing this Agreement, you
have not relied on any promises or representations, express or implied,
that are not set forth expressly in this Agreement.
If the terms of this Agreement are acceptable to you, please sign, date
and return it to me within 45 days of the date you receive it. You may revoke
this Agreement at any time during the seven-day period immediately following the
date of your signing by sending written revocation to the Company's Board of
Directors. If you do not do so, then, at the expiration of that seven-day
period, this letter will take effect as a legally-binding agreement between you
and the Company on the basis set forth above. The enclosed copy of this letter,
which you should also sign and date, is for your records.
Sincerely,
MACROCHEM CORPORATION
By: /s/ Xxxxxx X. XxXxxxxx
Accepted and agreed:
Signature: /s/ Xxxxx Xxxxxx
Date: 9/12/05
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EXHIBIT A
RELEASE OF CLAIMS
For and in consideration of the Benefit Payment, as defined in the
Agreement between me and MacroChem Corporation (the "COMPANY") dated September
___, 2005, and as a condition of my receipt of such benefits, to which I would
not otherwise be entitled, I, on my own behalf and on behalf of my heirs,
beneficiaries, executors, administrators, representatives and assigns, and all
others connected with or claiming through me, hereby release and forever
discharge the Company and all of its past, present and future officers,
directors, shareholders, general and limited partners, joint venturers, members,
managers, employees, agents, predecessors, successors and assigns, and all
others connected with any of them, and any and all benefit plans maintained by
the Company and all past, present and future representatives, agents, trustees,
fiduciaries and administrators of such plans, both individually and in their
official capacities, from any and all causes of action, rights or claims of any
name or nature whatsoever (all, collectively, "CLAIMS"), whether known or
unknown, which I had in the past, now have, or might now have, through the date
on which I sign this Release of Claims, including without limitation Claims in
any way resulting from, arising out of or connected with my employment or its
termination or pursuant to any federal, state or local law, regulation or other
requirement, including without limitation Title VII of the Civil Rights Act of
1964, the Age Discrimination in Employment Act, the Americans with Disabilities
Act and the fair employment practices statutes of the state or states in which I
have provided services to the Company .
In signing this Release of Claims, I acknowledge that I have had at
least forty five (45) days from the later of the date I received it or the date
I gave or received notice of termination of my employment to consider the terms
of this Release of Claims; that I have signed it following my last day of
employment with the Company; that I am advised and encouraged by the Company to
seek the advice of an attorney prior to signing this Release of Claims; and that
I am signing this Release of Claims voluntarily and with a full understanding of
its terms. I understand that I may revoke this Release of Claims at any time
within seven (7) days of the date of my signing by written notice to the Board
of Directors of the Company and that this Release of Claims will take effect
only upon the expiration of such seven-day revocation period and only if I have
not timely revoked it.
Intending to be legally bound, I have signed this Release of Claims
under seal as of the date written below.
Signature: ________________________________________
Date Signed: ______________________________________
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