exv10w52



 






Exhibit
10.52




SEPARATION AGREEMENT




          THIS SEPARATION AGREEMENT (this “Agreement”), dated as of October 31, 2005 by and
between NEOSE TECHNOLOGIES, INC. (the “Company”) and MARJORIE A. HURLEY, PHARM.D (“Dr.
Hurley”).




Background




          Dr. Hurley serves as a senior executive of the Company and is a party to a Change of Control
Agreement with the Company dated as of October 7, 2002 (the “COC Agreement”). Dr. Hurley’s
employment with the Company will cease effective as of the date of this Agreement, and, in
connection with that cessation and in recognition of Dr. Hurley’s contributions to the Company, and
in consideration for her relinquishment of her rights under the COC Agreement, the Company has
agreed to provide certain payments and benefits to Dr. Hurley as set forth herein. Except as
otherwise provided herein, this Agreement replaces and supersedes the COC 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 COC Agreement.



     2. Cessation of Employment.



          2.1. Timing. Dr. Hurley’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. Hurley’s
employment:




               2.2.1. the Company will pay Dr. Hurley $95,027.90 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. Hurley (and, if covered
immediately prior to such termination, her spouse and dependents) for a period of 12 months
commencing today at a monthly cost to Dr. Hurley equal to Dr. Hurley’s monthly contribution toward
the cost of such coverage immediately prior to such termination of employment;



               2.2.3. Dr. Hurley (and, if then covered, her 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
31, 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. Hurley
will be solely responsible for the payment of the applicable



 









 




premium due with respect to any COBRA continuation coverage elected by her (or her spouse or
dependents)




               2.2.4. the Company will pay to Dr. Hurley, at the time designated for payment to all Company
employees, a pro rata portion of any bonus earned by Dr. Hurley for 2005 in accordance with the
criteria that would be applicable if she 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. Hurley and that is vested and
exercisable immediately prior to the cessation of her consulting services under Section 3.1 will
remain exercisable until the first anniversary of such cessation and, to the extent not exercised
prior to that time, will then immediately expire; and



               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. Hurley acknowledges that: (a) the payments, rights and
benefits set forth in Section 2 of this Agreement constitute full settlement of all of her rights
with respect to all Restricted Stock Units awarded to her, (b) she has no entitlement under the COC
Agreement or 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 her. Dr. Hurley further acknowledges that, in the absence of her
execution of this Agreement, the payments, rights and benefits specified in this Agreement would
not otherwise be due to her.




     3. Consulting; Cooperation.



          3.1. Consulting. Dr. Hurley will provide consulting services to the Company as
determined from time to time by consensus between her and the Company’s management. It is
initially anticipated that Dr. Hurley will provide 8 hours of services per week between now and
December 31, 2005, as may be extended by mutual agreement. Upon presentation of proper invoice
the Company will pay Dr. Hurley, in addition to the amounts otherwise payable under this Agreement,
$1,500 per day for services performed. This consulting arrangement may be discontinued by Dr.
Hurley or the Company at any time for any reason upon written notice. In performing the consulting
services hereunder, Dr. Hurley will act as an independent contractor for all purposes, including
payroll tax purposes, and will no longer be an employee of the Company for any purpose.




          3.2. Cooperation. Dr. Hurley further agrees that, subject to reimbursement of her
reasonable expenses (but without payment of additional compensation), she will cooperate with the
Company to accomplish an orderly transition of her duties to other employees of the Company, and
with respect to any matter (including litigation, investigations, or governmental proceedings)
which relates to matters with which she was involved during her employment with




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Company. 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. Hurley’s personal and other professional obligations provided that,
unless otherwise agreed to by Dr. Hurley, such services will not require in excess of an aggregate
of 10 hours in any given month. Dr. Hurley’s assistance or cooperation under this Section 3.2 will
not constitute “Service” with respect to any equity incentive granted to her by the Company.




     4. Release and Covenant Not to Sue.



          4.1. Dr. Hurley 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
her 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. Hurley expressly represents that she has not filed a lawsuit or initiated any other
administrative proceeding against the Released Persons and that she has not assigned any claim
against the Released Persons to any other person or entity. Dr. Hurley 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 her 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. Hurley or under any similar agreement or (d) claims solely to enforce the terms of
any stock option award agreement between Dr. Hurley and the Company (as the same may have been
modified by Sections 2.2.2 of this Agreement).




          4.4. This Agreement will not prevent Dr. Hurley 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. Hurley for personal relief in connection with such a charge or investigation (such as
reinstatement or monetary damages) would be barred.




          4.5. Dr. Hurley acknowledges receipt of information regarding the job titles and ages of
employees in her 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.




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     5. Restrictive Covenants. Dr. Hurley agrees and acknowledges that Section 6 of the
COC Agreement (the “Restrictive Covenants”) will survive the cessation of her employment.
The parties agree that the “Restricted Period” for purposes of the application of the Restrictive
Covenants will end on April 7, 2006. Dr. Hurley affirms that the Restrictive Covenants are
reasonable and necessary to protect the legitimate interests of the Company, that she received
adequate consideration in exchange for agreeing to those provisions and that she 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. Hurley or Dr. Hurley’s performance or otherwise take
any action which could reasonably be expected to adversely affect Dr. Hurley’s personal or
professional reputation. Similarly, Dr. Hurley 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. Hurley expressly acknowledges and recites that (a) she has
read and understands this Agreement in its entirety, (b) she has entered into this Agreement
knowingly and voluntarily, without any duress or coercion; (c) she has been advised orally and is
hereby advised in writing to consult with an attorney with respect to this Agreement before
signing it; (d) she was provided 45 calendar days after receipt of this Agreement to consider its
terms before signing it; and (e) she 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. Hurley 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. Hurley’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. Hurley’s compliance with this Agreement and
the Restrictive Covenants. If Dr. Hurley 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. Hurley.



     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. Hurley. There have been no such violations, and the Company
specifically denies any such violations.




          9.2. No Reinstatement. Dr. Hurley agrees that she 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.




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          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
vicarious liability for the Company’s officers and directors. Therefore, intending to be bound by
this provision, Dr. Hurley hereby waives any right to claim payment of amounts owed to her 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. Hurley hereunder are personal
to Dr. Hurley and may not be assigned by her.




          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. Hurley 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:



Marjorie A. Hurley

                                      

                                      



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. Hurley’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 COC
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 	 
	 	 	President & Chief Executive Officer 	 
	 
	 	 MARJORIE A. HURLEY, PHARM.D. 	 
	 	 	 
	 	         /s/
Marjorie A. Hurley	 
	 	 	 
	 




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Exhibit 10.57




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	 







A-1