Exhibit 10.1
AGREEMENT OF SEPARATION AND RELEASE
THIS AGREEMENT OF SEPARATION AND RELEASE ("Agreement") is made and
entered into as of July 6, 2005 by and between XXXXX X. XXXXXXX, ("Employee")
and ORAGENICS, INC., a Florida corporation (the "Company").
WHEREAS, Employee is employed as the Company's President and Chief
Executive Officer, pursuant to the terms of an Employment Agreement dated
January 1, 2004 (the "Employment Agreement") and is a member of the Company's
Board of Directors;
WHEREAS, the Company and Employee have mutually agreed that it is
desirable to end Employee's employment relationship with the Company on the
terms and conditions set forth in this Agreement;
NOW, THEREFORE, Employee and the Company, intending to be legally bound
hereby and in consideration of the mutual promises contained herein, do hereby
agree as follows:
1. Resignation. Employee and the Company mutually agree that Employee
will resign from his position as President and Chief Executive Officer, and will
resign from his employment with the Company effective as of July 6, 2005 (the
"Resignation Date"); provided, however, he will remain a member of the Company's
Board of Directors. Employee and the Company acknowledge that notwithstanding
the preceding sentence, the Company may from time to time after the Resignation
Date need to discuss certain Company matters with which employee may be familiar
and Employee covenants and agrees to be available to answer questions as
reasonably may be necessary or requested by Company.
2. Accrued Pay. Employee will be paid his accrued salary, if any, for
his services through the close of business on the Resignation Date. The Company
will provide Employee with a check for his accrued salary, less payroll taxes
and other applicable payroll deductions, on the next scheduled pay date.
3. Severance Pay. In exchange for the covenants and release provided by
Employee in this Agreement, the Company will pay Employee severance pay
consisting of twelve equal monthly payments of Fifteen Thousand Dollars
($15,000) each (the "Severance Payments") which shall commence upon expiration
of the seven (7) day revocation period set forth in Section 11 provided that
Employee has not earlier revoked this Agreement. These Severance Payments shall
be subject to such income tax withholding and payroll taxes as the Company may
determine to be required by any applicable federal, state or local law.
4. Medical Insurance. After the Resignation Date, the Company will
provide Employee with a letter advising Employee of his right to continue to
purchase health insurance under the Company's group medical insurance at
Employee's expense for the applicable period provided for under COBRA.
5. Confidential Information. Employee agrees that he shall not disclose
to any third party any confidential information concerning the Company or the
Company's business which was acquired or learned during the course of Employee's
employment with the Company. Employee will not retain without the Company's
express consent any copies of any of the Company's business records, or other
documents which are the property of the Company.
6. Non-Disparagement. Employee and the Company mutually agree that they
shall not at any time (during the term of this Agreement or at any time
thereafter) publicly or privately make or publish any negative, critical or
disparaging comments or statements whether written or oral, about Employee, the
Company or its business, or any of its officers, directors or employees.
Employee and the Company (which shall include the Company's officers, directors
and employees), mutually agree to speak only highly of each other during the
term of this Agreement and thereafter.
7. Injunctive Relief. Employee acknowledges and agrees that it would be
difficult to fully compensate the Company for damages resulting from the breach
or threatened breach of any material provision of this Agreement and accordingly
agrees that the Company shall be entitled to temporary and injunctive relief,
including temporary restraining orders, preliminary injunctions and permanent
injunctions, to enforce such provisions in any action or proceeding instituted
in any United States District Court or in any court in the State of Florida
having subject matter jurisdiction. This provision with respect to injunctive
relief shall not, however, diminish the Company's right to claim and recover
damages.
8. Release of the Company. As consideration for the Severance Payments
and other benefits provided by the Company under this Agreement, Employee, for
himself and his heirs, assigns, executors and administrators, does hereby waive
and release the Company, and its successors, assigns, as well as any subsidiary
of the Company, and their respective officers, directors, shareholders and
employees from any and all claims, actions, causes of action, rights, suits,
demands, obligations, and/or liabilities, joint or several, present, past or
future, known or unknown, of whatever description, both at law and in equity,
including, without limitation, all claims of employment discrimination, unjust
or improper dismissal or treatment, intentional or negligent torts, retaliation,
back pay, front pay, injuries, damages, reinstatement, future employment
opportunities and all other claims relating to his employment or separation from
employment with the Company which he may now have or may ever have had, with the
exception of claims arising directly out of the Company's obligations under this
Agreement, including without limitation, any claims which may be made by him or
on his behalf under the Title VII of the Civil Rights Act of 1964, 42 U.S.C. ss.
1981, which prohibits discrimination in employment based on race, color,
national origin, religion or sex; the federal Age Discrimination in Employment
Act, 29 U.S.C. ss.621 et seq., which prohibits age discrimination in employment;
the Equal Pay Act, which prohibits unequal pay for equal work; the Americans
with Disabilities Act, which prohibits discrimination on the basis of
disability, and any other federal, state or local laws or regulations
prohibiting employment discrimination. This release is a general release and the
parties intend and agree that it shall be interpreted, construed and enforced as
such.
9. Release of Employee. As consideration for the covenants provided by
Employee under this Agreement, the Company, for itself and its successors and
assigns, does hereby waive and release Employee, and his heirs and assigns, from
any and all claims, actions, causes of action, rights, suits, demands and/or
liabilities, known or unknown, both at law or in equity, relating to Employee's
employment with the Company or Employee's obligations under any agreements with
the Company, which Employee may now have or may ever have had, with the
exception of claims arising directly out of Employee's obligations under this
Agreement. This release is a general release and the parties intend and agree
that it shall be interpreted, construed and enforced as such.
10. Confidentiality and Non-Disclosure. Employee and the Company
mutually agree to keep confidential and not disclose the existence or the terms
of this Agreement to any other person or discuss the terms of this settlement
with any other person provided that Employee may disclose with his accountant
and his attorney, provided they also agree to keep the terms confidential and
provided that the Company and the Employee shall not be precluded from
disclosing the existence and terms of this Agreement to the extent required by
any applicable law or regulation or by the order of a court of competent
jurisdiction.
11. Right to Revoke Release. Employee has a full seven (7) calendar
days following the execution of this Agreement to revoke this Agreement and has
been and hereby is advised in writing that this Agreement shall not become
effective or enforceable and Employee will not receive the Severance Payments
described in Section 3 of this Agreement, until the seven (7) day revocation
period has expired provided that Employee has not earlier revoked this
Agreement. This Agreement shall become irrevocable automatically upon the
expiration of the revocation period if it is not revoked by Employee during the
aforesaid seven (7) day revocation period, provided however that the foregoing
shall not apply to Employee's separation of association with the Company which
shall be effective as of the Resignation Date.
12. Separability. If any provision of this Agreement shall be declared
to be invalid or unenforceable, in whole or in part, such invalidity or
unenforceability shall not affect the remaining provisions hereof which shall
remain in full force and effect.
13. Entire Agreement. This Agreement and the terms of any other
agreements referenced or incorporated herein, constitutes the entire agreement
between Employee and the Company. The Employment Agreement is terminated in all
respects other than the provisions set forth in Section 18 of the Employment
Agreement including the non-compete and non-solicitation provisions contained
therein which shall survive such termination and is incorporated herein.
Accordingly, this Agreement supersedes all other agreements, oral understandings
or other agreements or representations between Employee and the Company which
have not been incorporated herein.
14. Full Review and Consideration of the Agreement. The Employee
further states that he has carefully read the within and foregoing "Agreement of
Separation and Release," that he is aware that he has the right to review this
Agreement for a period of up to twenty-one (21) days, that he has been
encouraged to review the same with an attorney of his choice, and that he knows
and understands the contents of the foregoing "Agreement of Separation and
Release" and that he executes the same as his own free act and deed. The
Employee understands that if Employee signs this Agreement before the twenty-one
(21) day period has expired then Employee shall be deemed to have waived the
twenty-one (21) day consideration period.
IN WITNESS WHEREOF, the Employee and the Company have set their hands
and seals to this Agreement of Separation and Release as of the date set forth
above.
EMPLOYEE:
/s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
ORAGENICS, INC.
/s/ Xxxxx X. Xxxx
Xxxxx X. Xxxx
Chairman of the Board of Directors
