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EXHIBIT 10.51
October 7, 1998
Xxxxxx X. Xxxxxx, Ph.D.
000 Xxxxxxxxxx Xxxxx
Xxx Xxxxxx, XX 00000
Dear Don:
As we have discussed, the following sets forth the agreements we have
reached related to your resignation as an employee (including any officer
position) of LXR Biotechnology Inc. (the "Company") effective October 9, 1998.
This letter sets forth all of the payments and other benefits to which you are
entitled as a result of your resignation and this letter supersedes and replaces
in its entirety the letter from the Company to you dated September 24, 1996 and
countersigned by you on October 7, 1996 (the "Employment Agreement"). You and
the Company hereby agree that you are voluntarily resigning and that you are
therefore not entitled to severance benefits. We have agreed, however, that in
return for the covenants and promises set forth in this letter, the Company will
provide severance benefits as set forth below.
Severance Payment; Forgiveness of Loan.
The Company hereby agrees to provide you an amount equal to one years
salary, less all applicable withholding obligations, or $145,237.50 ($225,000
salary, less withholding obligations of $79,762.50), under the following terms
(the "Severance Payment"). The Severance Payment will not be paid directly to
you but will be deducted from the amount you owe the Company pursuant to a
Promissory Note in the original principal amount of $175,000 dated December 3,
1997 (the "Note").
The balance due under the Note is currently $145,412.37, after
forgiveness of $25,000 which is subject to Board approval. The $25,000
forgiveness is subject to withholding obligations of $8,862.50. After deducting
the Severance Payment of $145,237.50 from the loan balance of $145,412.37, you
owe the Company $174.87 plus the withholding obligation of $8,862.50, for a
total of $9,037.37. If you wish, the Company will deduct from this amount the
net amount of accrued vacation pay that the Company owes to you. Your net
payment is due and payable within 30 days of receipt of this letter.
If you breach any provision of this letter, all amounts due and payable
under the Note, plus interest at the rate specified in the Note through such
date, shall be immediately due and payable.
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Xxxxxx X. Xxxxxx, Ph.D.
October 7, 1998
Invention Assignment; Confidentiality.
Please take the time to review the obligations set forth in the Employee
Invention Assignment and Confidentiality Agreement attached hereto as EXHIBIT B
(the "Invention and Confidentiality Agreement"), which you have previously
executed and are currently bound by. By signing below, you confirm that you have
been bound by the terms of the Invention and Confidentiality Agreement at all
times during your employment by the Company and that you have continuing
obligations under such agreement. Please examine areas in which you might have
stored Confidential Information (as defined in the Invention and Confidentiality
Agreement), including, among other places, personal computers and computer
disks, saved e-mail communications and personal files, as all Company materials
must be returned to the Company. Also, it is your legal responsibility not to
disclose to anyone any Confidential Information and by signing below you
reaffirm such continuing obligation.
In addition to the foregoing, you shall not discuss the business of the
Company with any current or former employee of the Company or any current or
former consultant to the Company. You may, however, from time to time discuss
the business of the Company with persons that are then officers of the Company
at the request of such officers.
Covenant Not to Compete.
For the next three years, you will not directly or indirectly assist any
person, business or enterprise which is engaged in research or development
related to the field of apoptosis without the express prior written consent of
the Company, which consent will not be unreasonably withheld if the proposed
activity does not compete or interfere with the business of the Company. During
the term of this Letter Agreement you will not in any manner interfere with the
operations, business, research or contractual relations of the Company. For
purposes of this paragraph, to "assist" is defined as follows: (i) to be an
officer, director, employee, partner, shareholder (other than a holder of less
than 1% of the voting power of a public company, where you have no other
relationship to such public company), principal, agent, representative or
consultant for such person or entity, or to carry on any similar activities for
such person or entity, in whatever capacity; (ii) to promote or endorse or allow
your name to be used in any Annual Report, Quarterly Report, Private Placement
Memorandum or advertisement of such entity; or (iii) to solicit or attempt to
solicit business or other opportunities on behalf of such entity. For purposes
of this paragraph, "interfere" shall include but not be limited to taking any
actions detrimental to the Company or its business, disparaging the Company or
its management, questioning the Company's legal rights, including its rights to
assets, or preventing or hindering the Company's employees in the performance of
their duties.
Nothing herein will prohibit you from servicing as an expert in
malpractice cases or on Boards of charitable organizations or from soliciting or
accepting support for research conducted by you at charitable organizations;
provided that such activities do not require or result in the disclosure of any
Confidential Information.
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Xxxxxx X. Xxxxxx, Ph.D.
October 7, 1998
Release, Etc.
You agree that the Company has satisfied all obligations to you. You
and your representatives, heirs, successors and assigns, do hereby release,
acquit and forever discharge the Company, and its affiliates, subsidiaries,
divisions and related companies, and the past, present and future employees,
agents, officers, directors, stockholders, partners, heirs, executors,
administrators, successors and assigns of all of the foregoing (all hereinafter
"Releasees"), from and against any and all claims, rights, demands, actions,
obligations, liabilities and causes of action -- whether asserted or unasserted,
whether known or unknown, and/or whether brought directly by or on behalf of you
or brought derivatively or in some other representative capacity by you on
behalf of the Company or others -- of any and every kind, nature and character
whatsoever, known or unknown, that you (or persons you may purport to represent)
may now have, that you (or persons you may purport to represent) has ever had or
that you (or persons you may purport to represent) may in the future claim to
have against Releasees, or any of them, including but not limited to claims
arising under the Civil Rights Act of 1964, the Age Discrimination in Employment
Act of 1967, California's Fair Employment and Housing Act, and any claims of
discrimination arising under any federal, state or local law, and those arising
from or in any way connected with or related to the employment of you by
Releasees, or any of them, the termination of that employment, the lack of such
employment, or any claims of discrimination or retaliation, and all acts or
omissions of Releasees, or any of them, whatsoever heretofore occurring or
arising.
As to the matters released above, you waive all rights or benefits
under Section 1542 of the California Civil Code, which provides as follows: "A
general release does not extend to claims which the creditor does not know or
suspect to exist in his favor at the time of executing the release, which if
known by him must have materially affected his settlement with the debtor."
By signing below, you agree, for yourself and for each of your
representatives, heirs, successors and assigns, not to assert any claims,
rights, demands, actions, obligations, liabilities or causes of action --
whether brought directly by or on behalf of you, or brought derivatively by you
on behalf of the Company or others -- of any and every kind, nature and
character whatsoever, that you may now have, that you have ever had or that may
exist in the future, or that you believe the Company or others may now have,
have ever had or may in the future have, against Releasees, except claims based
on breach of this letter by the Company.
By signing below, you expressly state that you have been given a period of at
least 21 days within which to consider the release set forth above. You are
advised to consult with an attorney prior to signing below. Your release does
not become effective until 7 days after you sign below. You understand that you
may revoke the release at any time during the 7 days following the date you sign
below. It is agreed that any such revocation must be received in writing by the
Company within said 7 day period in order to be effective. If you revoke the
release, as of the date of such revocation all amounts due under the Note shall
be immediately due and payable.
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Xxxxxx X. Xxxxxx, Ph.D.
October 7, 1998
Miscellaneous.
Except for agreements related to (i) Confidential Information of, and
any assignment of inventions to, the Company, (ii) the Note other than as
modified herein, and (iii) agreements related to the grant and exercise of
options to purchase Common Stock of the Company, this letter supersedes and
replaces all prior understandings and agreements between you and the Company.
You acknowledge that the Company will have no adequate remedy at law if
you violate your obligations set forth in this agreement under the captions
"Invention Assignment; Confidential Information" and "Covenant Not to Compete."
In such event, the Company will have the right, in addition to any other rights
it may have, to obtain in any court of competent jurisdiction injunctive relief
to restrain any breach or threatened breach of this letter.
Any notice required or permitted hereunder will be given in writing and
will be deemed effectively given as follows: (a) upon personal delivery; (b)
three days after deposit in the United States mail by certified or registered
mail (return receipt requested); (c) one business day after its deposit with any
return receipt express courier (prepaid); or (d) one business day after
transmission by fax or telecopier, addressed to the other party at its address
(or facsimile number, in the case of transmission by telecopier) as shown on the
first page hereof or on the records of the Company, or to such other address as
such party may designate in writing from time to time to the other party. Any
notice to the Company shall be addressed to the President.
The terms of this letter will be construed and enforced in accordance
with the internal laws of the State of California, excluding that body of laws
pertaining to conflict of laws. If any provision of this letter is determined by
a court of law to be illegal or unenforceable, then such provision will be
enforced to the maximum extent possible and the other provisions will remain in
full force and effect.
Sincerely,
Xxxx Xxxxxxxx
Chief Executive Officer
AGREED AND ACCEPTED:
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Xxxxxx X. Xxxxxx, Ph.D.
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