exv10w51



 






Exhibit 10.51




SEPARATION AGREEMENT




          THIS
SEPARATION AGREEMENT (this “Agreement”), dated as of
October 31, 2005 by and between
NEOSE TECHNOLOGIES, INC. (the “Company”) and JOSEPH J. VILLAFRANCA, PH.D. (“Dr.
Villafranca”).




Background




          Pursuant to the Employment Agreement dated as of September 12, 2002 between Dr. Villafranca
and the Company (the “Employment Agreement”), Dr. Villafranca serves as a senior executive
of the Company. Dr. Villafranca’s employment with the Company is terminating, effective as of the
date of this Agreement, and, in connection with the termination of his employment and in
recognition of Dr. Villafranca’s contributions to the Company, and in consideration for his
relinquishment of his rights under the Employment Agreement, the Company has agreed to provide
certain payments, rights and benefits to Dr. Villafranca as set forth herein. Except as otherwise
provided herein, this Agreement replaces and supersedes the Employment Agreement.




Terms




          NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and promises
contained herein, and intending to be bound hereby, the parties agree as follows:




     1. Definitions. Unless otherwise defined herein, capitalized terms used in this
Agreement have the same meaning as defined in the Employment Agreement.



     2. Terms.



          2.1. Cessation of Employment. Dr. Villafranca’s employment with the Company will
cease as of the date of this Agreement.




          2.2. Payments, Rights and Benefits. In connection with the cessation of Dr.
Villafranca’s employment:




               2.2.1. the Company will pay Dr. Villafranca a total of $157,976, in twelve substantially equal
installments, with the first such installment to be paid as soon as administratively practicable
following the date this Agreement becomes irrevocable;



               2.2.2. the Company will continue to provide medical benefits to Dr. Villafranca (and, if
covered immediately prior to such termination, his spouse and dependents) for a period of 12 months
commencing today at a monthly cost to Dr. Villafranca equal to Dr. Villafranca’s monthly
contribution toward the cost of such coverage immediately prior to such termination of employment;



               2.2.3. Dr. Villafranca (and, if then covered, his spouse and dependents) will be deemed to
have a COBRA qualifying event as a result of the termination of his (or their) medical benefits on
October 7, 2006 (or earlier pursuant to Section 3 below) and, subject to the limitations and
requirements of COBRA, may elect COBRA continuation coverage at that time;



 









 







provided, however, that
Dr. Villafranca will be solely responsible for the payment of the applicable premium due with
respect to any COBRA continuation coverage elected by him (or his spouse or dependents);



               2.2.4. the Company will pay to Dr. Villafranca, at the time designated for payment to all
Company employees, a pro rata portion of any bonus earned by Dr. Villafranca for 2005 in accordance
with the criteria that would be applicable if he remained employed at the time of consideration;



               2.2.5. notwithstanding any contrary provisions of any other agreement or plan, the portion of
any option to purchase common stock of the Company held by Dr. Villafranca and that is vested and
exercisable immediately prior to the cessation of his employment will remain exercisable until the
first anniversary of the date of this Agreement and, to the extent not exercised prior to that
time, will then immediately expire;



               2.2.6. pursuant to Section 2 of the Restricted Share Unit Agreements dated March 3, 2005,
effective immediately upon termination of employment, all otherwise unvested Restricted Stock Units
issued pursuant to such Agreements (“RSUs”) will become vested, and all RSUs issued under such
Agreements will be settled pursuant to Section 5 of such Agreements.



          2.3. Acknowledgements. Dr. Villafranca acknowledges that: (a) the payments, rights
and benefits set forth in Section 2 of this Agreement constitute full settlement of all of his
rights with respect to all Restricted Stock Units awarded to him, (b) he has no further entitlement
under the Employment Agreement or under any other severance or similar arrangement maintained by
the Company, and (c) except as otherwise provided specifically in this Agreement, the Company does
not and will not have any other liability or obligation to him. Dr. Villafranca further
acknowledges that, in the absence of his execution of this Agreement, the payments, rights and
benefits specified in this Agreement would not otherwise be due to him.




     3. Transition Assistance; Cooperation.



          3.1. Dr. Villafranca further agrees that, subject to reimbursement of his reasonable expenses
(but without payment of additional compensation), he will cooperate with the Company:




               3.1.1. to accomplish an orderly transition of his duties to other employees of the Company;
and



               3.1.2. with respect to any matter (including litigation, investigations, or governmental
proceedings) which relates to matters with which he was involved during his employment with
Company.



          3.2. The Company agrees to provide reasonable advance notice of the need for such assistance
and/or cooperation and will exercise reasonable efforts to schedule such matters so as to avoid
interfering with Dr. Villafranca’s personal and other professional obligations, provided that,
unless otherwise agreed to by Dr. Villafranca, such services will not require more than an average
of 10 hours in any given month. Dr. Villafranca’s assistance or cooperation




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under this paragraph
will not constitute “Service” with respect to any equity incentive granted to him by the Company.




     4. Release and Covenant Not to Sue.



          4.1. Dr. Villafranca hereby fully and forever releases and discharges the Company and its
parents, affiliates and subsidiaries, including all predecessors and successors, assigns, officers,
directors, trustees, employees, agents and attorneys, past and present (collectively, the
“Released Persons”), from any and all claims, demands, liens, agreements, contracts,
covenants, actions, suits, causes of action, obligations, controversies, debts, costs, expenses,
damages, judgments, orders and liabilities, of whatever kind or nature, direct or indirect, in law,
equity or otherwise, whether known or unknown, arising through the date of this Agreement, out of
his employment by the Company or the cessation thereof, including, but not limited to, any claims
for relief or causes of action under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et
seq., the Pennsylvania Human Relations Act, 43 P.S. §951 et seq. or any other federal, state or
local statute, ordinance or regulation regarding discrimination in employment and any claims,
demands or actions based upon alleged wrongful or retaliatory discharge or breach of contract under
any state or federal law.




          4.2. Dr. Villafranca expressly represents that he has not filed a lawsuit or initiated any
other administrative proceeding against the Released Persons and that he has not assigned any claim
against the Released Persons to any other person or entity. Dr. Villafranca further promises not
to initiate a lawsuit or to bring any other claim against the Released Persons arising out of or in
any way relating to his employment by the Company or the cessation of that employment.




          4.3. The forgoing will not be deemed to release the Company from (a) claims solely to enforce
this Agreement, (b) claims solely to enforce Section 2.2 of this Agreement, (c) claims for
indemnification under the Company’s By-Laws, under any indemnification agreement between the
Company and Dr. Villafranca or under any similar agreement or (d) claims solely to enforce the
terms of any stock option award agreement between Dr. Villafranca and the Company (as the same may
have been modified by Sections 2.2.2 and 2.2.3 of this Agreement).




          4.4. This Agreement will not prevent Dr. Villafranca from filing a charge with the Equal
Employment Opportunity Commission (or similar state agency) or participating in any investigation
conducted by the Equal Employment Opportunity Commission (or similar state agency); provided,
however, that any claims by Dr. Villafranca for personal relief in connection with such a charge or
investigation (such as reinstatement or monetary damages) would be barred.




          4.5. Dr. Villafranca acknowledges receipt of information regarding the job titles and ages of
employees in his organizational unit whose employment is and is not expected to
cease on or about the date of this Agreement, which information is provided in accordance with
the requirements of federal law and is summarized on the attached Exhibit A.




     5. Restrictive Covenants. Dr. Villafranca agrees and acknowledges that Section 7 of
the Employment Agreement (the “Restrictive Covenants”) will survive the cessation of his



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employment. Dr. Villafranca affirms that the provisions of Section 7 of the Employment Agreement
are reasonable and necessary to protect the legitimate interests of the Company, that he received
adequate consideration in exchange for agreeing to those provisions and that he will abide by those
provisions.



     6. Non-Disparagement. The Company (meaning, solely for this purpose, Company’s
directors and executive officers and other individuals authorized to make official communications
on Company’s behalf) will not disparage Dr. Villafranca or Dr. Villafranca’s performance or
otherwise take any action which could reasonably be expected to adversely affect Dr. Villafranca’s
personal or professional reputation. Similarly, Dr. Villafranca will not disparage Company or any
of its directors, officers, agents, employees or affiliates or otherwise take any action which
could reasonably be expected to adversely affect the reputation of the Company or the personal or
professional reputation of any of the Company’s directors, officers, agents, employees or
affiliates.



     7. Rescission Right. Dr. Villafranca expressly acknowledges and recites that (a) he
has read and understands this Agreement in its entirety, (b) he has entered into this Agreement
knowingly and voluntarily, without any duress or coercion; (c) he has been advised orally and is
hereby advised in writing to consult with an attorney with respect to this Agreement before
signing it; (d) he was provided 45 calendar days after receipt of this Agreement to consider its
terms before signing it; and (e) he is provided seven (7) calendar days from the date of signing to
terminate and revoke this Agreement, in which case this Agreement shall be unenforceable, null and
void. Dr. Villafranca may revoke this Agreement during those seven (7) days by providing written
notice of revocation to the Company at the address specified below in Section 9.8. In the event of
such revocation, Dr. Villafranca’s employment will remain terminated, and the applicable provisions
of Employment Agreement will be in full force and effect.



     8. Challenge. Notwithstanding any provision of this Agreement, the payments, rights
and benefits described herein are conditioned on Dr. Villafranca’s compliance with this Agreement
and the Restrictive Covenants. If Dr. Villafranca violates or challenges the enforceability of any
provisions of this Agreement or the Restrictive Covenants, no further payments, rights or benefits
under this Agreement will be due to Dr. Villafranca.



     9. Miscellaneous.



          9.1. 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 to Dr. Villafranca. There have been no such violations, and the Company
specifically denies any such violations.




          9.2. No Reinstatement. Dr. Villafranca agrees that he will not apply for
reinstatement with the Company or seek in any way to be reinstated, re-employed or hired by the
Company in the future.




          9.3. No Liability of Officers and Directors. The obligations of the Company under
this Agreement are intended to its obligations alone and are not intended to give create any




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vicarious liability for the Company’s officers and directors. Therefore, intending to be bound by
this provision, Dr. Villafranca hereby waives any right to claim payment of amounts owed to him
pursuant to this Agreement, now or in the future, from directors or officers of the Company if the
Company becomes insolvent.




          9.4. Successors and Assigns. The Company may assign this Agreement to any successor to
all or substantially all of its assets and business by means of liquidation, dissolution, merger,
consolidation, transfer of assets, or otherwise. The rights of Dr. Villafranca hereunder are
personal to Dr. Villafranca and may not be assigned by him.




          9.5. Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Pennsylvania without regard to the principles of conflicts of
laws.




          9.6. Enforcement. Any legal proceeding arising out of or relating to this Agreement
will be instituted in the United States District Court for the Eastern District of Pennsylvania, or
if that court does not have or will not accept jurisdiction, in any court of general jurisdiction
in the Commonwealth of Pennsylvania, and Dr. Villafranca and the Company hereby consent to the
personal and exclusive jurisdiction of such courts and hereby waive any objections that they may
have to personal jurisdiction, the laying of venue of any such proceeding and any claim or defense
of inconvenient forum.




          9.7. Waivers; Separability. The waiver by either party hereto of any right hereunder
or any failure to perform or breach by the other party hereto shall not be deemed a waiver of any
other right hereunder or any other failure or breach by the other party hereto, whether of the same
or a similar nature or otherwise. No waiver shall be deemed to have occurred unless set forth in a
writing executed by or on behalf of the waiving party. No such written waiver shall be deemed a
continuing waiver unless specifically stated therein, and each such waiver shall operate only as to
the specific term or condition waived. 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 will remain in full force and effect.




          9.8. Notices. All notices and communications that are required or permitted to be
given hereunder shall be in writing and shall be deemed to have been duly given when delivered
personally or upon mailing by registered or certified mail, postage prepaid, return receipt
requested, as follows:



If to the Company, to:



Neose Technologies, Inc.

102 Witmer Road

Horsham PA 19044

Attn: General Counsel

Fax: 215-315-9100




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If to Employee, to:



Joseph J. Villafranca

                                      

                                      

                                      




or to such other address as may be specified in a notice given by one party to the other party
hereunder.




          9.9. Entire Agreement; Amendments. This Agreement contains the entire agreement and
understanding of the parties relating to the cessation of Dr. Villafranca’s employment with the
Company and merges and supersedes all prior and contemporaneous discussions, agreements and
understandings of every nature relating to that subject, including (except as otherwise provided
herein) the Employment Agreement. This Agreement may not be changed or modified, except by an
agreement in writing signed by each of the parties hereto.




          9.10. Withholding. The Company will withhold from any payments due to Employee
hereunder, all taxes or other amounts required to be withheld pursuant to any applicable law.




          9.11. Headings Descriptive. The headings of sections and paragraphs of this Agreement
are inserted for convenience only and shall not in any way affect the meaning or construction of
any provision of this Agreement.




          9.12. Counterparts. This Agreement may be executed in multiple counterparts, each of
which will be deemed to be an original, but all of which together will constitute but one and the
same instrument.




          IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first
above written.




	 	 	 	 	 	 	 
	 	 	NEOSE TECHNOLOGIES, INC.	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ C. Boyd Clarke	 	 
	 

	 	 	 	 

C. Boyd Clarke
	 	 
	 

	 	 	 	Chairman and Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	JOSEPH J. VILLAFRANCA, PH.D.	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	/s/ Joseph J. Villafranca	 	 
	 	 	 	 	 





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Exhibit 10.56




Exhibit A




Required ADEA Disclosures



The job titles and ages of employees who have been selected are as follows:




	 	 	 
	Vice President/Senior Vice President

	 	46, 58

	Executive Vice President

	 	61





The job titles and ages of employees in the same job classifications who have not been selected are
as follows:




	 	 	 
	Vice President,/Senior Vice President

	 	38, 47, 52
	Executive Vice President

	 	44, 63







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