EXHIBIT 10.41
RETIREMENT AGREEMENT
THIS RETIREMENT AGREEMENT (the "Agreement") is made as of January 14,
2002 between Neose Technologies, Inc., a Delaware corporation (the "Company"),
and Edward J. McGuire, Ph.D. ("Employee").
Background
Employee and the Company have agreed that Employee will retire from the
Company effective June 30, 2002 (the "Retirement Date"). The parties are
entering into this Agreement to set forth the terms and conditions of Employee's
retirement.
Terms
NOW, THEREFORE, in consideration of the covenants and conditions set
forth in this Agreement, the parties, intending to be legally bound, agree as
follows:
1. Termination of Employment. Employee's employment with the Company will
terminate as of the Retirement Date. Employee hereby confirms that he
voluntarily and irrevocably will resign, as of the Retirement Date, any and all
positions he holds with the Company, except as set forth in Section 6. Except as
expressly provided in this Agreement, all rights and obligations of the Company
and Employee with respect to such employment will be effectively terminated on
the Retirement Date.
2. Period Through Termination.
2.1 From the date hereof through the Retirement Date, except as
provided in Section 2.2, Employee will remain employed by the Company in his
current capacity of Vice President, Research and Development.
2.2 Employee acknowledges that the Company has begun a search for a
successor Vice President, Research and Development. If a successor is hired or
appointed by the Company prior to the Retirement Date, Employee will resign as
Vice President, Research and Development as of the date of such successor's hire
or appointment, but will remain an employee of the Company through the
Retirement Date.
3. Rights to Retirement Benefits. Employee understands and acknowledges that, in
consideration for signing this Agreement, Employee is receiving rights which he
is not otherwise entitled to receive, and that payments made or to be made and
benefits provided or to be provided hereunder are in lieu of any and all
compensation and benefits due to Employee under the terms of any agreement,
arrangement or understanding (whether written or oral) binding upon the Company
and Employee.
4. Payments and Benefits.
4.1 Annual Retirement Benefit. From and after the Retirement Date,
Neose will pay to Employee, or his applicable heirs or personal representatives,
an annual retirement benefit, payable bimonthly, less applicable withholding, at
the following rates:
4.1.1 From the Retirement Date, through December 31, 2002, at an
annual rate of $175,000.
4.1.2 From January 1, 2003 through December 31, 2003, at an annual
rate of $125,000.
4.1.3 From January 1, 2004 through December 31, 2006, at an annual
rate of $100,000.
4.2 Benefits.
4.2.1 During the period within which the Company must make
available the purchase of continued health insurance under COBRA (pursuant to
Section 4980B of the Internal Revenue Code), such period commencing on the
Retirement Date and ending on December 31, 2003, the Company waive payment of
any applicable premium otherwise due for any group health continuation coverage
elected by the Employee or his or her spouse or dependents under COBRA (29
U.S.C. ss.ss. 1161-1169) to the extent the Company would have paid such premiums
for an employee of the Company. Except as expressly provided in this Agreement,
Employee shall not be entitled to any benefits provided to employees of the
Company after the Retirement Date, other than benefits previously accrued under
the terms of the Company's 401(k) or pension plans, if any. Employee
specifically acknowledges that he is not entitled to participate after the
Retirement Date in any of the Company's benefit plans, including, without
limitation, the Company's life insurance, disability insurance or 401(k) or
pension plans.
4.2.2 From the Retirement Date through December 31, 2006, the
Company will provide Employee with an office comparable to the offices provided
to director-level scientists within the Company.
4.3 Taxes. Employee will be solely responsible for payment of all
federal, state and local taxes in respect of the payments to be made and
benefits to be provided to him under this Agreement including, without
limitation, under Sections 3 and 5. Employee hereby acknowledges that the
Company is responsible for the withholding of income, FICA, FUTA and other
payroll taxes, and the Company is authorized to make such withholdings or to
require that Employee pay to the Company the amount of any such required
withholdings as a condition of any payment or benefit.
2
5. Options. All unvested stock options granted to Employee under the Company's
Amended and Restated 1995 Stock Option/Stock Issuance Plan (the "Plan") will
vest as of the Retirement Date. The exercise period of all outstanding stock
options will be extended through December 31, 2006, but in no event beyond the
expiration date of any such option.
6. Consulting Services. From the Retirement Date through December 31, 2006,
Employee will be available, up to 10 days per month, on reasonable notice, to
provide consulting services to the Company, without further compensation, on
research programs, outside research programs, technology assessment,
publications, facilities, and other matters requested by senior executives of
the Company. In addition, Employee will continue to serve as a member of the
Company's Scientific Advisory Board and the Company's GlycoAdvance(TM) Advisory
Board without further compensation.
7. Release.
7.1 In consideration of the foregoing (including without limitation the
promises and payments as described in Sections 4 and 5, which are in excess of
that to which Employee would have otherwise been entitled upon termination of
employment), Employee hereby knowingly, willingly and voluntarily remises,
waives, releases and forever discharges the Company and its subsidiaries and
affiliates, the directors, officers, employees, advisors and agents of the
Company and its subsidiaries and affiliates, and the heirs, executors,
administrators, predecessors, successors, joint venture partners, and assigns of
such parties (collectively referred to as the "Releasees"), of and from any and
all manner of actions and causes of action, suits, debts, dues, accounts, bonds,
covenants, contracts, agreements, judgments, claims and demands whatsoever in
law or equity which Employee, his heirs, executors, administrators or assigns
has, had or may hereafter have against the Releasees or any of them from or by
reason of any cause, matter or thing whatsoever from the beginning of his
employment with the Company to the Retirement Date, excepting only claims
against the Company relating to its obligations under Sections 4 and 5 of this
Agreement, and including any claims arising from or relating in any way to his
employment relationship with the Company, the termination of that relationship,
the terms and conditions of that employment relationship, including, but not
limited to, any claims arising under the Age Discrimination in Employment Act,
29 U.S.C. ss. 621 et seq., Title VII of the Civil Rights Act of 1964, 42 U.S.C.
ss. 2000e-1 et seq., as amended, the Americans with Disabilities Act, 42 U.S.C.
ss.12101 et seq., the Employee Retirement Income Security Act, 29 U.S.C. ss.
1001 et seq., the Family and Medical Leave Act, the Fair Labor Standards Act,
and any and all state statutory analogues; and any other any federal or state
common law or statutory claims now existing or hereinafter recognized including,
but not limited to, claims for breach of contract, defamation, wrongful
discharge, intentional and/or negligent infliction of emotional distress,
outrageous conduct, invasion of privacy, promissory estoppel and attorney's fees
and costs.
3
7.2 Covenant Not to Sue. Employee agrees and covenants that neither he,
nor any person, organization, or other entity on his behalf, will file, charge,
claim, sue or cause or permit to be filed, charged or claimed, any civil action,
suit, or legal proceeding for personal relief (including any action for damages,
injunctive, declaratory, monetary, or other relief) against Neose involving any
matter occurring at any time in the past up to and including the date of this
Separation Agreement and General Release or involving any continuing effects of
any acts or practices which may have arisen or occurred prior to the date of
this Agreement. Employee further agrees that if any person, organization, or
other entity should bring a claim against Neose involving any such matter,
Employee will not accept any personal relief in any such action.
8. Confidential Information.
8.1 Existing Agreement. Employee acknowledges that, upon, and as a
condition of, first becoming an employee of the Company, he executed and
delivered to the Company the Company's standard form of noncompete and
confidentiality agreement, dated April 30, 1992 (the "Confidentiality
Agreement"). In consideration of the provisions of this Agreement, Employee (i)
is reaffirming the Confidentiality Agreement contemporaneously with the
execution of the Agreement, thereby confirming that he is and shall be legally
bound by its terms and (ii) acknowledges that the terms of the Confidentiality
Agreement are valid, binding and enforceable, and that he is and shall remain
legally bound thereby at all times after the Retirement Date regardless of
termination of his employment by the Company. Employee agrees that he will
provide, and that the Company may similarly provide, a copy of the
Confidentiality Agreement to any business or enterprise (i) which he may
directly or indirectly own, manage, advise, operate, finance, join, control or
participate in the ownership, management, operation, financing or control of or
(ii) with which he may be connected with as an officer, director, advisor,
employee, partner, principal, agent, representative, consultant or otherwise, or
in connection with which he may use or permit his name to be used.
8.2 Third Party Information. Employee recognizes that the Company has
received from third parties their confidential or proprietary information
subject to a duty on the Company's part to maintain the confidentiality of such
information and to use it only for certain limited purposes. Employee shall hold
all such confidential or proprietary information in the strictest confidence and
shall not disclose it to any person or entity or use it except as consistent
with the Company's agreements with such third parties.
9. Time Allowed to Review this Agreement: In compliance with the Older Workers
Benefit Protection Act ("OWBPA"), Employee has twenty-one (21) days to consider
this Agreement and is hereby advised to consult an attorney prior to signing the
Agreement. If Employee signs the Agreement, Employee will have the right to
revoke or cancel the Agreement within seven (7) days after Employee signs the
Agreement by submitting written notice of revocation to Sandra Keller, Neose
Technologies, Inc., 102 Witmer Road, Horsham, PA 19044. If Employee signs the
Agreement and does not revoke the Agreement, the Agreement becomes binding,
irrevocable, and enforceable at the expiration of such seven (7) day revocation
period. Employee is not obligated to sign this Agreement, and refusal to do so
will not jeopardize Employee's right to benefits to which Employee is already
entitled.
4
10. Governing Law. This Agreement shall be governed by and interpreted under the
laws of the Commonwealth of Pennsylvania, without giving effect to the
principles of conflicts of law thereof.
11. Confidentiality. The parties agree that, except as required by law, the
terms and conditions of this Agreement shall be kept confidential, and shall not
be published, revealed, publicized, communicated, or otherwise made public in
any manner or form.
12. No Admission of Liability. This Agreement is not to be construed as an
admission of any violation of any federal, state or local statute, ordinance or
regulation or of any duty owed by the Company (or any of its agents) to
Employee. There have been no such violations, and the Company specifically
denies any such violations.
13. Preservation of Privilege. Employee will assist and cooperate with the
Company in holding, preserving and not waiving any privilege or protection of
the Company, including without limitation the attorney-client privilege and work
product doctrine, as to any matter.
14. Section 16 Compliance. Employee represents and confirms that all
transactions reportable on Form 3, 4, or 5 under Section 16 of the Securities
Exchange Act of 1934, as amended, have been so reported.
15. Notices. All notices that are permitted or required to be given under this
Agreement shall be hand-delivered or sent by registered or certified mail,
nationally recognized overnight delivery service, or by facsimile to each party
at the following addresses:
If to Neose, to: Neose Technologies, Inc.
102 Witmer Road
Horsham, PA 19044
Attention: General Counsel
Fax: (215) 441-5896
If to Employee, to: Edward J. McGuire, Ph.D.
3065 Cloverly Drive
Furlong, PA 18925
Fax: _____________
or to such other names or addresses as the Company or Employee, as the case may
be, shall designate by notice to the other in the manner specified in this
Section.
5
16. Miscellaneous.
16.1 Compensation Committee Approval. This Agreement is conditioned
upon, and shall not be effective until, the approval of the Compensation
Committee of the Board of Directors of the Company.
16.2 Entire Agreement. This Agreement supersedes all prior agreements
and sets forth the entire understanding among the parties hereto with respect to
the subject matter hereof, except that this Agreement shall not supersede and
shall be in addition to the Confidentiality Agreement. This Agreement may not be
changed, modified, extended or terminated except upon written amendment executed
by Employee and approved by the board of directors of the Company and executed
on behalf of the Company by a duly authorized officer. Without limitation of the
foregoing, Employee and the Company acknowledge that the effect of this
provision is that no oral modifications of any nature whatsoever to this
Agreement shall be permitted.
16.3 Successors and Assigns. All of the terms and provisions of this
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the respective heirs, executors, administrators, legal representatives,
successors and assigns of the parties hereto.
16.4 Severability. If any provision of this Agreement is held invalid
or unenforceable in any jurisdiction, the remaining provisions shall remain in
full force and effect.
16.5 Remedies Cumulative; No Waiver. No remedy conferred upon the
Company by this Agreement or the Confidentiality Agreement is intended to be
exclusive of any other remedy, and each and every such remedy shall be
cumulative and shall be in addition to any other remedy given hereunder or now
or hereafter existing at law or in equity. No delay or omission by the Company
in exercising any right, remedy or power hereunder or existing at law or in
equity shall be construed as a waiver thereof, and any such right, remedy or
power may be exercised by the Company from time to time and as often as may be
deemed expedient or necessary by the Company in its sole discretion.
17. Consultation with Legal Counsel. Employee and the Company acknowledge that
no promise or inducement for this Agreement has been made except as set forth
herein. Employee acknowledges that this Agreement is executed without Employee's
reliance upon any statement or representation by or on behalf of the Company;
that Employee has had an opportunity to discuss this Agreement with his
attorney, and that Employee is legally competent to and does voluntarily execute
this Agreement and accept full responsibility therefor.
6
IN WITNESS WHEREOF, the undersigned, intending to be legally bound
hereby, have executed this Agreement as of the date first written above.
NEOSE TECHNOLOGIES, INC.
By: /s/ P. Sherrill Neff
-------------------------------------
P. Sherrill Neff
President and Chief Operating Officer
/s Edward J. McGuire
----------------------------------------
Edward J. McGuire, Ph.D.
7