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EXHIBIT 10.1(C)
MEMORANDUM OF UNDERSTANDING
THIS MEMORANDUM OF UNDERSTANDING, dated January 4, 2001 by and between XXXX
X. NORTH ("North") an individual having an address at 0000 Xxxxxx Xxxxx, Xxxxxx,
XX 00000, and AMERICAN BIOGENETIC SCIENCES, INC. ("ABS"), a Delaware
corporation, having an address at 0000 Xxxxx Xxxxxx, Xxxxxxxx, XX 00000.
WHEREAS, North and ABS are parties to an Employment Agreement, dated as of
November 2, 1998 (the "Employment Agreement"); and
WHEREAS, North and ABS (i) have mutually agreed to terminate the Employment
Agreement as provided herein, and (ii) have agreed to the other terms and
conditions set forth below.
NOW, THEREFORE, in consideration of the mutual promises, agreements and
premises set forth herein, it is hereby agreed as follows:
1. (a) The Employment Agreement is hereby terminated as of the date hereof
without liability to any party and neither party shall have any further
obligations thereunder, all of which are hereby released by the parties, except
for North's continuing obligations pursuant to paragraph 7 of the Employment
Agreement (Restrictive Covenant) and paragraph 9 of said Employment Agreement
(Confidential Information) all of which shall survive the termination of said
Employment Agreement.
(b) North hereby resigns effective January 4, 2001, for personal
reasons, as an employee, Officer and Director of ABS.
2. Concurrently with the execution hereof, the parties have entered into
the Mutual General Release attached as Annex A hereto.
3. Binding Agreement. This Memorandum of Understanding, sets forth the
parties' complete agreement with respect to the subject matter hereof and
supersedes all prior or contemporaneous agreements or understandings, written or
oral, with respect thereto. The parties intend to be bound hereby and to operate
pursuant hereto. The terms of this Memorandum of Understanding and all
proprietary information of each of the parties is confidential and may not be
disclosed except pursuant to applicable securities laws. This Memorandum of
Understanding may not be amended or modified except by a written instrument
signed by the parties hereto.
4. Counterparts. This Agreement and all other agreements referred to herein
may be executed in one or more counterparts, each of which shall for all
purposes be deemed to be an original and all of which shall constitute the same
instrument, but only one of which need be produced.
5. Applicable Law. This Memorandum of Understanding and any other agreement
entered into in connection herewith shall be governed by, and construed under
and in accordance with, the laws of the State of New York applicable to
contracts made and wholly to be performed therein by residents thereof, without
giving effect to the conflict of laws principles thereof. All actions
proceedings seeking the interpretation and/or enforcement of this Agreement
shall be brought only in the sate or federal courts located in New York County,
all parties hereby submitting themselves to the jurisdiction of such courts for
such purpose. Any process in any action or proceeding commenced in the courts of
the State of New York arising out of any claim, dispute or disagreement, may,
among other methods be served upon any party by delivering or mailing the same,
via registered or certified mail, addressed to such party at the address set
forth above. Any
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such delivery or mail services shall be deemed to have the same force and affect
as personal service within the State of New York, New York county.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
AMERICAN BIOGENETIC SCIENCES, INC.
BY: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Chairman
/s/ Xxxx X. North
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Xxxx X. North
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ANNEX A
MUTUAL
GENERAL RELEASE
American Biogenetic Sciences, Inc. ("ABS") and Xxxx X. North ("North"),
sometimes collectively referred to herein as the "parties," hereby enter into
this Mutual Release Agreement ("Release") as of January 4, 2001.
As a material inducement to the Company to enter into this Release and in
consideration for the benefits received hereunder, North for himself, his heirs,
executors, administrators, successors and assigns, hereby fully releases,
discharges and acquits the Company, its affiliated and related entities, parent
corporations, subsidiary corporations, present and former officers and
directors, employees, agents, attorneys, representatives, shareholders,
successors and assigns (collectively "Company Releases"), from any and all
claims, charges, demands, sums of money, actions, rights, causes of action,
obligations and liabilities of any kind or nature whatsoever, at law or in
equity, which he may have, had, claim to have had, now have, or claim to have,
which are or may be based upon facts, acts, conduct, representations, omissions,
contracts, claims, events, causes, matters or things of any conceivable kind or
character, whether known or unknown, existing or occurring at any time on or
before the date of this Release relating to the Company, including but not
limited to, (a) any claims arising under Title VII of the Civil Rights Act of
1964, the Americans with Disabilities Act, the Equal Pay Act, the New York State
and City Human Rights Laws and the Rehabilitation Act of 1973, any federal,
state or other governmental statues, ordinances or regulations, (b) any
defamation, fraud, negligence or other tort or common law claims which he may
have, including, without limitation, any claims arising under any implied or
express contracts or agreements (including, without limitation, the Employment
Agreement dated as of November 2, 1998 between the Company and North, (c) any
claims for adjusted compensation, bonus, severance or vacation pay or any other
form of compensation, or benefit relating to North's employment and the
termination thereof, (d) any claims for intentional torts, emotional distress
and pain, and suffering and (e) any claims for compensatory and punitive
damages. Without limiting the generality of the foregoing, specifically included
in the foregoing release are any and all claims of North under or pursuant to
the Age Discrimination in Employment Act of 1967, as amended.
As a material inducement to North to enter into this Release and in
consideration for the benefits received hereunder, the Company, as well as its
affiliated and related entities, parent corporations, subsidiary corporations,
present and former officers and directors, and successors and assigns, hereby
fully releases, discharges and acquits North from any and all claims, charges,
demands, sums of money, actions, rights, causes of action, obligations and
liabilities of any kind or nature whatsoever, at law or in equity, which the
Company may have, had, claim to have had, now have, or claim to have, which are
or may be based upon facts, acts, conduct, representations, omissions,
contracts, claims, events, causes, matters or things of any conceivable kind or
character, whether known or unknown, existing or occurring at any time on or
before the date of this Release relating to the Company, including but not
limited to any claims arising under any federal, state or other governmental
status, ordinances or regulations, any defamation, fraud, negligence or other
tort or common law claims implied or express contracts or agreements (including,
without limitation, the
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Employment Agreement dated as of November 2, 1998 between the Company and
North), and any claims for compensatory and punitive damages.
As a material inducement to the parties to enter into this Release and in
consideration for the benefits received hereunder the parties on behalf of
themselves and their respective heirs, assigns and legal representatives, hereby
covenant and represent that neither of them has instituted, and will not
institute, any complaints, claims, charges or lawsuits, with any governmental
agency or any court, against the other by reason of any claim, present or
future, known or unknown, arising from or related in any way to North's
employment with the Company or any of its affiliates or the termination of such
employment, or any relationship, association, or transaction to date between the
parties hereto or any of their predecessors or their respective agents,
employees or officers, including, without limitation, arising from or related to
the aforementioned Employment Agreement.
Notwithstanding anything to the contrary herein, the foregoing covenant, as
well as the Release provided herein shall not apply to actions for breach of
this Release and Memorandum of Understanding dated January 4, 2001 between ABS,
nor shall they apply to North's continuing obligations pursuant to paragraphs 7
and 9 of his Employment Agreement which shall survive the execution of this
Release.
As a material inducement to North to enter into this Release and in
consideration for the benefits received hereunder, North agrees not to
disparage, or make any disparaging remarks or send any disparaging
communications concerning, the Company, its reputation, its business, and its
officers, directors and employees to any person. The Company similarly agrees
not to disparage, or make any disparaging remarks or send any disparaging
communications concerning North, or his reputation, his business expertise and
his job performance at the Company to any person.
AMERICAN BIOGENETIC SCIENCES, INC.
BY: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Chairman
/s/ Xxxx X. North
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Xxxx X. North
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