Exhibit 99.1
SETTLEMENT AGREEMENT, INDEMNIFICATION AND MUTUAL RELEASE
This Settlement Agreement, Indemnification and Mutual Release
("Agreement"), effective April 24, 2009, is by and among Malcolm Skolnick, an
individual residing at 8993 Briar Forest Drive, Houston, Texas 77024 ("Skolnick"
or "Employee"), and CytoGenix, Inc., a Nevada corporation having its principle
place of business located at 3100 Wilcrest Drive, Houston, Texas 77042
("CytoGenix" or "Company").
WHEREAS, on August 18, 2008, Employee resigned as the Chief Executive
Officer, President, and Chairman and member of the Board of Directors, an
officer and an employee of CytoGenix; and
WHEREAS, following his resignations as Officer and Director, Skolnick
has asserted certain claims relating to his employment with CytoGenix, including
past due wages, Skolnick's rights and obligations under his employment agreement
with CytoGenix and CytoGenix's obligations under a Secured Loan Agreement For
Services Rendered between CytoGenix and Skolnick executed prior to Skolnick's
resignations; and
WHEREAS, the parties hereto, in an effort to prevent disputes and avoid
controversy, expense and delay, desire to settle and compromise the claims
asserted, or that could have been asserted.
NOW, THEREFORE, for and in consideration of the mutual obligations and promises
herein contained, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. CONSIDERATION.
(a) CytoGenix shall pay Skolnick the sum of $10.00, due at the time of
execution of this Agreement.
(b) CytoGenix intends to negotiate a consulting agreement with Skolnick
according to the non-binding terms incorporated herein in Attachment
A.
(c) Upon execution of this Agreement by all parties, any and all actual
and potential claims that have been raised or which could have been
raised at the time of execution of this Agreement existing between the
parties shall be dismissed.
(d) For all matters and controversies arising from this Agreement,
CytoGenix and Skolnick shall each be responsible for their own
attorneys' fees and costs.
2. RELEASE - Skolnick.
Skolnick, his heirs, executors, administrators, attorneys, successors and
assigns, as well as any person or entity claiming by, through or under any of
the foregoing, hereby RELEASE, ACQUIT AND FOREVER DISCHARGE CytoGenix, its
current and former officers, directors, employees, shareholders, agents, legal
representatives, attorneys, successors and assigns, from any and all claims,
causes of action, suits, damages (actual, compensatory, exemplary or punitive),
debts, secured loans, obligations, benefits, wages, bonuses, compensation, back
pay, front pay, vacation pay, sick pay, medical bills and expenses, and demands,
of any kind, nature or description whatsoever, whether known or unknown, whether
at law or in equity, whether:
(a) in contract or in tort (including but not limited to claims for
wrongful discharge, constructive termination, discrimination,
retaliation, interference with protected rights, interference with
present or prospective contractual relations, breach of contract,
defamation, invasion of privacy, intentional or negligent infliction
of emotional distress, fraud, misrepresentation, personal injury,
negligence, intentional conduct, misconduct or interference with
present or prospective business relations or contracts),
(b) arising under federal or state statutory or common law (including, but
not limited to: Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. ss. 2000e et seq., the Civil Rights Act of 1866, 42 U.S.C.
ss. 1981 et seq., the Equal Pay Act, 29 U.S.C. ss. 206; the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), 29
U.S.C. ss. 1001 et seq. (non-vested rights); the Americans with
Disabilities Act, 42 U.S.C. ss. 12101 et seq.; the Age Discrimination
Employment Act of 1967, as amended by the Older Worker Benefit
Protection Act ("ADEA"), 29 U.S.C. ss. 621 et seq.; the Fair Labor
Standards Act, as amended, 29 U.S.C. ss. 201 et seq.; the National
Labor Relations Act, 29 U.S.C. ss.ss. 151 et seq.; the Family and
Medical Leave Act of 1993, 29 U.S.A. ss. 2601 et seq.; the Worker
Adjustment and Retraining Notification Act (WARN), 29 U.S.C., ss. 2101
et seq.; the Occupational Safety and Health Act, as amended, Chapter
21 of the Texas Labor Code (the Texas Commission on Human Rights Act),
Texas Labor Code ss. 21.001 et seq.; the Texas Payday Act, Texas Labor
Code, ss. 61.01 et seq.; the Texas Workers' Compensation Statute,
Texas Labor Code ss. 451.0001 et seq.; the Sarbanes-Oxley Act; and any
other employment or civil rights act),
(c) any and all claims for past or future employment benefits, including,
but not limited to, wages, severance pay, bonuses, stock options or
grants of rights to acquire shares of common stock, vacation pay,
medical or dental insurance coverage, short or long term disability
benefits, and/or other benefits which may hereafter accrue or which
have accrued as a result of Skolnick's employment and/or affiliation
with, and/or termination and/or separation from the Company;
(d) any and all claims arising out of any previous Employment Agreement
with Skolnick which Skolnick asserted, or could have asserted, against
the Company; and
(e) any and all claims arising out of or relating in any way to Skolnick's
employment and/or affiliation with and/or resignation or separation
from the Company, which Skolnick asserted, or could have asserted,
relating to or arising out of the employment relationship between the parties,
as well as the matters that were asserted, in any current, actual or potential
claim or complaint. This release applies to all claims and causes of action that
exist or could have been asserted on or before the effective date of this
Agreement.
3. RELEASE - CytoGenix.
CytoGenix, its current and former officers, directors, employees, agents, legal
representatives, attorneys, successors and assigns, as well as any person or
entity claiming by, through or under any of the foregoing, hereby RELEASE,
ACQUIT AND FOREVER DISCHARGE Skolnick, his respective heirs, executors,
administrators, attorneys, successors and assigns, from any and all claims and
causes of action as legally allowed by law, in equity, statutory or otherwise,
including, without limitation, all claims and causes of action relating to or
arising out of the employment relationship between the parties, as well as the
matters that were asserted, or could have been asserted, in any current, actual
or potential claim or complaint. This release applies to all claims and causes
of action that exist or could have been asserted on or before the effective date
of this Agreement.
(a) Recognizing that Skolnick was an employee and officer of CytoGenix, the
Company agrees to indemnify and hold harmless Skolnick, his heirs and
assigns (the "Indemnified Parties"), from and against any and all loss,
charge, claim, damage, expense and liability related to or arising in any
manner out of, based upon, or in connection with Skolnick's employment
with CytoGenix, hereunder (hereinafter referred to as a "Matter" or
"Matters") to the limits provided by the Company's current Directors and
Officers' insurance policy and will reimburse Skolnick for all covered
expenses (including reasonable fees and expenses of legal counsel) as
incurred in connection with the investigation of, preparation for or
defense of any pending or threatened Claim related to or arising in any
manner out of any Matter hereunder, or any action or proceeding arising
therefrom (collectively, "Proceedings") up to the limits provided by the
insurance policy, whether or not Skolnick is a formal party to any such
Proceeding.
(b) Notwithstanding the foregoing, the Company shall not be liable in
respect of any Claims resulting from the gross negligence, willful
misconduct or criminal conduct of Skolnick during his employment by the
Company.
(c) The indemnity, reimbursement and contribution obligations of the
Company set forth herein shall be in addition to any liability which the
Company may otherwise have and shall be binding upon and inure to the
benefit of any successors, assigns, heirs and personal representatives of
the Company or an Indemnified Party.
(d) The indemnity, reimbursement and contribution provisions set forth
herein shall remain operative and in full force and effect regardless of
any other provision of this Agreement and shall survive this Agreement.
4. Non-Admission
This Agreement shall not in any way be construed as an admission by the Company
of any act of discrimination or other unlawful act whatsoever against Skolnick
or any other person, and the Company specifically disclaims any liability to or
discrimination against Skolnick or any other person on the part of itself, its
employees or its agents.
5. Non-disparagement
Skolnick agrees that he will act at all times hereafter, in a manner consistent
with the best interests of Company and with respect to the Company's Board of
Directors, employees, agents and third parties, and that he will not engage in
any act or make any comments (written or oral), which are intended or which may
reasonably be expected to harm the missions, reputations or other interests of
the Company, its Board members or its employees. Similarly, the officers and
directors of the Company and its Board of Directors agree not to engage in any
act or make any comments (written or oral), which are intended to or which may
reasonably be expected to harm Skolnick's reputation or employment prospects.
Nothing in this section of the Agreement prevents Skolnick or Company from
engaging in any act (written or oral) that is necessary for Skolnick or Company
to respond to any request made or statutorily required by any governmental
agency, or appear in any proceedings before a court of law.
6. Confidential and Proprietary Information
Skolnick acknowledges that, during his employment with CytoGenix, Skolnick had
access to confidential and proprietary business, technical, financial
information and materials that constitute valuable and unique properties of the
Company. For purposes of this Agreement, "Confidential Information" means and
includes CytoGenix' confidential, financial and/or proprietary information
including but not limited to trade secrets that have been and/or will be
developed or used which cannot be obtained readily by third parties from outside
sources.
Confidential Information includes but is not limited to the following:
information regarding past, current, and prospective customers, investors,
business affiliates, employees, contractors and the industry which is not
generally known to the public; financial information critical to the workings of
the Company; technical information such as strategies, methods, books, records
and documents; technical information concerning products, equipment, services
and processes; procurement procedures; pricing schedules and pricing techniques;
contacts including names, services provided, pricing, type and amount of
services used, financial data; pricing strategies and price curves; business
position and competitive analysis; plans or strategies for expansion or
acquisitions; budgets; research; financial and sales data; trading methodologies
and terms; communications information; evaluations, opinions and interpretations
of information and data; marketing and merchandising techniques; electronic
databases; models; specifications; computer programs; contracts; bids or
proposals; technologies and methods; information regarding synDNA and gene
targets, ssDNA expression technology, anti-herpes technology and/or the
Company's anti-microbial and biotin technology; personnel information; payments
or rates paid to consultants or other service providers; and other such
confidential or proprietary information. Skolnick acknowledges that CytoGenix'
business is highly competitive, that this Confidential Information constitutes a
valuable, special and unique asset of the Company, and that protection of such
Confidential Information against unauthorized disclosure and use is of critical
importance to CytoGenix.
Skolnick acknowledges that disclosure of this information would cause
substantial and irreparable harm, loss of goodwill, and injury to the Company.
Skolnick agrees that he has not and will not, directly or indirectly; disclose
any confidential or proprietary information or documents relating to the
Company, unless with written authorization by the Company. The Company
acknowledges that Skolnick has returned to the Company all of Company property
formerly in his possession.
Skolnick understands and acknowledges that the consideration set forth herein is
provided solely in consideration of this release, except as may be explicitly
stated herein. Skolnick understands, agrees and intends that upon payment of the
consideration set forth, that he will have received full and complete
satisfaction of any and all claims, whether known, suspected or unknown that he
may have or have had against the Company as of the date of this Agreement.
Skolnick hereby waives any and all relief not explicitly provided for herein.
7. No Right to Reinstatement
Skolnick waives any right to reinstatement or any future employment, but may
assume an independent contractor relationship with the Company. Skolnick shall
at no time following the Separation Date, represent himself as being affiliated
with the Company in any capacity other than what is provided herein.
8. Miscellaneous
(a) None of the releases set forth herein are intended to release any of
the rights and obligations established by this Agreement. The rights
duties and obligations set forth herein shall survive the release of
claims set forth herein.
(b) The parties hereto acknowledge that this Agreement is being made by
each party of its own free choice. The parties further state that in
entering into this Agreement, each party has been advised by an
attorney of that party's choice and selection, and has had the
opportunity to consult with such attorney regarding the benefits and
detriments of entering into this Agreement. Skolnick, who is himself
an attorney, has chosen to act as an attorney on his own behalf.
(c) This Agreement contains the full and complete agreement of the parties
hereto, and all prior negotiations and agreements pertaining to the
subject matter hereof are merged into and superseded by this
Agreement. No change, amendment, waiver or discharge of any provision
of all or any part of this Agreement shall be valid unless such
change, amendment, waiver or discharge is in writing and duly executed
by all parties to this Agreement, or their authorized agents.
(d) This Agreement may be executed in more than one counterpart, each of
which shall be an original, but all of which, taken together, shall be
and remain one instrument.
(e) The parties hereto warrant and represent that none of them has sold,
assigned, granted, or otherwise transferred to anyone not a party
hereto any right, privilege, claim or cause of action, or any part
thereof, arising out of or otherwise connected with the subject matter
of this Agreement.
(f) This Agreement is entered into and is performable in Harris County,
Texas, and shall be governed by, construed, interpreted, and enforced
in accordance with the laws of the State of Texas.
(g) The persons signing this Agreement on behalf of any of the parties
hereto hereby warrant and represent that they are authorized to sign
this Agreement on behalf of themselves or their respective entities
and that such persons have the power to bind themselves and/or their
respective entities.
(h) This Agreement is a result of substantial negotiations between the
parties and their counsel. Accordingly, the fact that counsel for one
party or another drafted this Agreement shall not be material to the
interpretation of this Agreement. As an attorney, Skolnick acted as
his own counsel during these negotiations.
(i) All parties to this Agreement have read the Agreement and fully
understand and comprehend its meaning and binding effect.
(j) If any portion of this Agreement is found to be null, void or
unenforceable, the remainder of this Agreement shall remain in full
force and effect.
(k) The headings of the several sections of this Agreement are inserted
for convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
(l) This Agreement shall be effective upon full execution and delivery of
the Agreement by each of the parties hereto. This Agreement may be
executed by fax, and in multiple counterparts or copies, each of which
shall be deemed to be an original for all purposes.
(m) The execution of this Agreement will warrant public announcement by
CYGX. A draft of the proposed Press Release is incorporated herein as
Attachment B.
IN WITNESS WHEREOF, the parties hereto have caused this Separation
Agreement to be executed as of the day and year set forth above.
CytoGenix Employee
/s/ Lex M> Cowsert, PhD /s/ Malcolm Skolnick, PhD, JD
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Lex M. Cowsert, PhD Malcolm Skolnick, PhD, JD
President & CEO
/s/ Randy Moseley April 24, 2009
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Randy Moseley Date
Chairman of the Board