Re: Severance Agreement and Release
Exhibit 10.1
February 11, 2010
Xx. Xxxxxxx X. Xxxxxxxx
Re: Severance Agreement and Release
Dear Xxxxx:
This letter agreement (the “Agreement”) summarizes the terms of your planned separation of employment from Helicos BioSciences Corporation (the “Company”). The purpose of this Agreement is to establish an amicable arrangement for ending your employment relationship with the Company, to release legal claims between you and the Company, to provide you certain severance benefits that you are not otherwise entitled to.
With these understandings and in exchange for the promises by you and the Company as set forth below, you and the Company agree as follows.
1. Employment Status, Severance Pay and Benefits:
(a) You agree that your separation of employment from the Company shall be effective as of the date written above (the “Resignation Date”). During the remainder of your employment, you shall perform any reasonably requested responsibilities to assist in the transition of your duties. You have agreed, separate and apart from this Agreement, to resign from the Board of Directors of the Company. You acknowledge and agree that your resignation from the Board of Directors of the Company is final and may not be revoked by you in any manner.
(b) In exchange for, and in consideration of, your full execution of and adherence to this Agreement, the Company agrees to pay you the amount of your regular base salary at the gross annual rate of $375,000.00 that you would have earned after the Resignation Date if your employment had continued to and including August 31, 2010 (the “Severance Amount”). The Severance Amount shall be paid to you in two equal installments, subject to regular deductions and withholdings (each, an “Installment”). The first Installment shall be paid to you on the Company’s first regular payroll date after the seven-day revocation period set forth in Section 12 has expired. The second Installment shall be paid to you on the Company’s last regular payroll date in April, 2010 (which is expected to be April 21, 2010). Your participation in all Company benefit programs in which you currently participate shall continue up to and including the Resignation Date. Effective on the Resignation Date, your participation in all such Company benefit programs shall end pursuant to program terms, except with respect to the Company’s group medical and dental plans, which shall be subject to continuation pursuant to Section 1(c) below. To the extent permitted by and under the Company’s life insurance and long term disability policies, you may be eligible to elect to extend your coverage under such policies after the Resignation date at your own cost and expense. On the Resignation Date, your
employment and your affiliations with the Company and any of its subsidiaries in any and all other capacities you may hold with the Company or any subsidiary shall terminate. Without limiting the generality of the foregoing, effective as of the Resignation Date, you hereby resign from all officer positions with the Company and any of its subsidiaries or affiliates. Notwithstanding the foregoing, nothing in this Agreement shall be construed to affect your right to receive pay for all vacation pay that is accrued, unused and otherwise available to you as of the Resignation Date. Any such vacation pay to the extent not theretofore paid, shall be paid in a lump sum in cash within ten (10) business days after the Resignation Date. You acknowledge and agree that you previously received a reimbursement payment from the Company in the amount of $1,305.70 in connection with a hotel reservation for a business conference that was scheduled for February 2010 that you will not be attending on behalf of the Company. You agree that such reimbursement amount shall be deducted from the first Installment payment described in this Section 1(b).
(c) The Resignation Date shall be the date of the “qualifying event” under the Company’s group medical and dental plans for the purpose of continuation of coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”). The Company will present you with information on COBRA under separate cover. If you timely elect continuation of coverage under COBRA, the Company shall pay the premiums for coverage of you under the Company’s group medical and dental plans in which you are currently participating (“Group Health Plans”) at the coverage levels that currently apply to you (i.e. yourself and your wife), subject to premium contributions by you to the same extent as premium contributions are required for active employees with the same coverage levels, effective until the earlier of (i) December 31, 2010 or (ii) the date when you become eligible for coverage under another group medical plan as a result of other employment. You shall notify the Company in writing if you become eligible for coverage under another group medical plan before December 31, 2010 and you shall respond promptly to any reasonable requests for information relevant to your rights under this Section 1(c). You acknowledge that the Company may deduct your premium contributions for coverage under Group Health Plans from your severance Installment payments pursuant to Section 1(b). Nothing in this Agreement shall affect your right to continue participating in Group Health Plans pursuant to COBRA after December 31, 2010 at your own premium cost subject to the terms of COBRA.
(d) As part of the consideration for the payments and benefits following the Resignation Date pursuant to Sections 1(b) and 1(c), you agree that during the period from the day following the Resignation Date to and including August 31, 2010, you shall provide up to five (5) hours per calendar month of transitional assistance by telephone or email. You shall provide such assistance at any reasonable times requested by the Company; provided that the Company shall not require you to provide transitional assistance at any time that would unreasonably interfere with personal or professional commitments. Transitional assistance pursuant to this Section 1(d) may include but shall not be limited to services within the scope of Section 10.
2. Stock/Change in Control Agreements:
(a) Stock and Stock Options: Your rights to stock and stock options of the Company shall be governed by the Helicos BioSciences Corporation 2003 Stock Option and Incentive Plan
and the 2007 Stock Option and Incentive Plan (the “Stock Option Plans”) and your equity award agreements for the following awards (the “Equity Award Agreements”) based on your employment to the Resignation Date:
RESTRICTED STOCK AWARDS
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Grant |
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As of 1/1/2010 |
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Number |
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Date |
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Plan |
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Type |
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Granted |
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Price |
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Vested |
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Unvested |
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127 |
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8/8/2006 |
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2003 |
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RSA |
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166,666 |
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$ |
0.5850 |
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149,305 |
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17,361 |
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130 |
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7/27/2007 |
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2007 |
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RSA |
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12,778 |
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$ |
0.0000 |
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7,986 |
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4,792 |
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533 |
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1/28/2009 |
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2007 |
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RSA |
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87,500 |
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$ |
0.0000 |
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43,750 |
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43,750 |
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266,944 |
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201,041 |
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65,903 |
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STOCK OPTIONS
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Grant |
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As of 1/1/2010 |
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Number |
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Date |
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Plan |
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Type |
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Granted |
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Price |
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Vested |
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Unvested |
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213/214 |
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2/22/2007 |
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2003 |
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ISO/NQ |
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166,666 |
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$ |
11.0700 |
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121,525 |
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45,141 |
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246/247 |
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11/20/2007 |
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2007 |
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ISO/NQ |
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250,000 |
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$ |
10.7500 |
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135,416 |
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114,584 |
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403/404 |
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8/18/2008 |
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2007 |
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ISO/NQ |
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150,000 |
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$ |
4.4000 |
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53,124 |
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96,876 |
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458/459 |
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1/28/2009 |
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2007 |
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ISO/NQ |
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175,000 |
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$ |
1.0400 |
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87,500 |
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87,500 |
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741,666 |
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397,565 |
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344,101 |
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Notwithstanding anything to the contrary in this Section 2(a), you shall further be entitled to vesting as of the Resignation Date of such additional stock and options set forth in award numbers 127, 130, 533 and 458/459 noted above (the “Accelerated Awards”) that would have vested if your employment had continued to and including August 31, 2010. Subject only to that modification of vesting rights with respect to the Accelerated Awards, all of your rights and obligations to stock and/or stock options, including exercise, expiration and the Company’s purchase of unvested stock, are governed by the terms and conditions of the Stock Plans and the Equity Award Agreements.
(b) Change in Control Agreement: You agree that you shall have no further rights under the Amended and Restated Change in Control Agreement dated as of August 18, 2008 between you and the Company (the “Change in Control Agreement”), and that as of the Resignation Date, the Change in Control Agreement shall be null and void.
3. Mutual Releases:
(a) In exchange for the Company’s promises set forth herein, and other good and valuable consideration, the sufficiency of which is hereby acknowledged, you, on your own behalf and on behalf of your heirs, executors, administrators, attorneys and assigns, hereby unconditionally and irrevocably release, waive and forever discharge the Company and each of its affiliates, parents, successors, predecessors, and the subsidiaries, directors, owners, members, shareholders, officers, agents, and employees of the Company and its affiliates, parents, successors, predecessors, and subsidiaries (collectively, all of the foregoing are referred to as the “Company Releasees”), from any and all causes of action, claims and damages, whether known or unknown, foreseen or unforeseen, presently asserted or otherwise arising through the date of your signing of the Agreement, concerning your employment, Board membership or separation from
employment and your resignation from your Board membership. This release includes, but is not limited to, any claim or entitlement to salary, bonuses, any other payments, benefits or damages arising under any federal law (including, but not limited to, Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Employee Retirement Income Security Act of 1974, the Americans with Disabilities Act, Executive Order 11246, the Family and Medical Leave Act, and the Worker Adjustment and Retraining Notification Act, each as amended); any claim arising under any state or local laws, ordinances or regulations (including, but not limited to, any state or local laws, ordinances or regulations requiring that advance notice be given of certain workforce reductions); and any claim arising under any common law principle or public policy, including, but not limited to, all suits in tort or contract, such as wrongful termination, defamation, emotional distress, invasion of privacy or loss of consortium, and any claim for attorneys’ fees.
You understand that by signing this Agreement you are not waiving any claims or administrative charges which cannot be waived by law. You are waiving, however, any right to monetary recovery or individual relief should any federal, state or local agency (including the Equal Employment Opportunity Commission) pursue any claim on your behalf arising out of or related to your employment, Board membership with and/or separation from employment and Board membership with the Company.
Notwithstanding anything to the contrary provided herein, nothing herein shall affect your rights under the Company’s certificate of incorporation and bylaws with respect to indemnification or the Indemnification Agreement, dated August 18, 2008, between the Company and you.
(b) In exchange for the release set forth in Section 3(a) above, and other good and valuable consideration, the sufficiency of which is hereby acknowledged, the Company unconditionally and irrevocably hereby release, waive and forever discharge you from any and all causes of action, claims and damages, whether known or unknown, foreseen or unforeseen, presently asserted or otherwise arising out of your employment with, change in employment status with, and/or separation of employment from, the Company. This release is intended by the Company to be all encompassing and to act as a full and total release of any claims, whether specifically enumerated herein or not, that the Company may have or have had against you arising from conduct occurring up to and through the date of this Agreement, including, but not limited to, any claims arising from any federal, state or local law, regulation or constitution dealing with either employment or employment benefits; any contract, whether oral or written, express or implied, including without limitation, any letter offering employment and any stock option agreement(s), any tort; any claim for equity or other benefits; or any other statutory and/or common law claim. Notwithstanding the foregoing, nothing herein shall be deemed to release or waive (i) any civil claims the Company may have arising from any acts or omissions by you that would satisfy the elements of a criminal offense or (ii) any claims arising from this Agreement.
4. Waiver of Rights and Claims Under the Age Discrimination in Employment Act of 1967:
Since you are 40 years of age or older, you are being informed that you have or may have specific rights and/or claims under the Age Discrimination in Employment Act of 1967 (ADEA) and you agree that:
(a) in consideration for the Company’s promises set forth herein, you specifically and voluntarily waive such rights and/or claims under the ADEA you might have against the Company Releasees to the extent such rights and/or claims arose prior to the date this Agreement was executed;
(b) you understand that rights or claims under the ADEA which may arise after the date this Agreement is executed are not waived by you;
(c) you are advised that you may take at least twenty-one (21) days within which to consider the terms of this Agreement, subject to Section 5(a) below, and you are advised to consult with an attorney of your choice prior to executing this Agreement, and you acknowledge that you have not been subject to any undue or improper influence interfering with the exercise of your free will in deciding whether to consult with counsel;
(d) you have carefully read and fully understand all of the provisions of this Agreement, and you knowingly and voluntarily agree to all of the terms set forth in this Agreement; and
(e) in entering into this Agreement you are not relying on any representation, promise or inducement made by the Company or its attorneys with the exception of those promises described in this document.
5. Period for Review and Consideration of Agreement:
(a) You acknowledge that you were informed and understood that you had twenty-one (21) days from January 25, 2010 (i.e., to and including February 19, 2010) to review and consider a preceding version of this Agreement before signing it. You further acknowledge and agree that the revisions to such preceding version that are reflected in this Agreement do not extend that twenty-one (21) day period. If you sign this Agreement before February 19, 2010, you acknowledge that such decision was entirely voluntary.
(b) The 21-day review period will not be affected or extended by any revisions, whether material or immaterial, that might be made to this Agreement.
6. Accord and Satisfaction: The payments set forth herein shall be complete and unconditional payment, settlement, accord and/or satisfaction with respect to all obligations and liabilities of the Company Releasees to you, including, without limitation, all claims for back wages, salary, vacation pay, draws, incentive pay, bonuses, stock and stock options, commissions, severance pay, reimbursement of expenses, motor vehicle expenses, moving expenses, any and all other forms of compensation or benefits, attorney’s fees, or other costs or sums.
7. Company Files, Documents and Other Property: You agree that on or before the Resignation Date you will return to the Company all Company property and materials, including but not limited to, (if applicable) personal computers, laptops, palm pilots and their equivalent, fax
machines, scanners, copiers, cellular phones, Company credit cards and telephone charge cards, manuals, building keys and passes, courtesy parking passes, diskettes, intangible information stored on diskettes, software programs and data compiled with the use of those programs, software passwords or codes, tangible copies of trade secrets and confidential information, sales forecasts, names and addresses of Company customers and potential customers, customer lists, customer contacts, sales information, sales forecasts, memoranda, sales brochures, business or marketing plans, reports, projections, and any and all other information or property previously or currently held or used by you that is or was related to your employment with the Company (“Company Property”). You represent that you have not and will not take by download or otherwise any Company Property. You agree that in the event that you discover any Company Property in your possession, whether in electronic form or otherwise, after the Resignation Date, you will immediately return such materials to the Company.
Following your return of your Company issued laptop (the “Laptop”), the Company will remove all Company information from the Laptop and will then transfer the Laptop to you for you to keep for your own personal use together with the docking station and two (2) monitors previously used by you in your office at the Company.
8. No Liability or Wrongdoing: Nothing in this Agreement, nor any of its terms and provisions, nor any of the negotiations or proceedings connected with it, constitutes, will be construed to constitute, will be offered in evidence as, received in evidence as, and/or deemed to be evidence of, an admission of liability or wrongdoing by any and/or all of the Company Releasees, and any such liability or wrongdoing is hereby expressly denied by each of the Company Releasees.
9. Future Conduct:
(a) Nondisparagement: You agree not to make disparaging statements to any person or entity concerning the Company, its officers, directors or employees; the products, services or programs provided or to be provided by the Company; the business affairs, operation, management or the financial condition of the Company; or the circumstances surrounding your employment and/or separation of employment from the Company. The Company shall direct all current Directors, the current CEO and current Vice Presidents of the Company not to make any disparaging statements concerning you.
(b) Confidentiality of this Agreement: You agree that you shall not disclose, divulge or publish, directly or indirectly, any information regarding the substance, terms or existence of this Agreement and/or any discussion or negotiations relating to this Agreement, including any assertions made in the course of such negotiations, to any person or organization other than your immediate family and accountants or attorneys when such disclosure is necessary for the accountants or attorneys to render professional services. Prior to any such disclosure that you may make, you shall secure from your attorney or accountant their agreement to maintain the confidentiality of such matters. Notwithstanding the foregoing, you may make disclosure concerning this Agreement to the same extent as the Company makes public disclosure for securities law reporting purposes, after the Company has made any such disclosure.
(c) Disclosures: Nothing herein shall prohibit or bar you from providing truthful testimony in any legal proceeding or in communicating with any governmental agency or representative or from making any truthful disclosure required, authorized or permitted under law; provided, however, that in providing such testimony or making such disclosures or communications, you will use your best efforts to ensure that this section is complied with to the maximum extent possible. Notwithstanding the foregoing, nothing in this Agreement shall bar or prohibit you from contacting, seeking assistance from or participating in any proceeding before any federal or state administrative agency to the extent permitted by applicable federal, state and/or local law. However, you nevertheless will be prohibited to the fullest extent authorized by law from obtaining monetary damages in any agency proceeding in which you do so participate.
(d) Nondisclosure and Developments Agreement: You agree that the Employee Nondisclosure and Developments Agreement between you and the Company (“Nondisclosure and Developments Agreement”), provide restrictions regarding your conduct following the termination of your employment. You agree that the agreements referenced in the preceding sentence are valid and enforceable, and that you shall comply in all respects with the terms of such agreements.
10. Future Cooperation:
You agree to cooperate reasonably with the Company (including its outside counsel) in connection with the contemplation, prosecution and defense of all phases of existing, past and future litigation about which the Company believes you may have knowledge or information. You further agree to make yourself available at mutually convenient times during and outside of regular business hours as reasonably deemed necessary by the Company’s counsel. The Company shall not utilize this Section 10 to require you to make yourself available to an extent that would unreasonably interfere with full-time employment responsibilities that you may have. You agree to appear without the necessity of a subpoena to testify truthfully in any legal proceedings in which the Company calls you as a witness. The Company shall compensate you at the rate of $200.00 per hour for services provided by you pursuant to this Section 10; provided that (i) the Company shall not be required to provide compensation for services that also come within the scope of your obligations to provide transitional assistance pursuant to Section 1(d) (which obligations are subject to the time period and hours limitation applicable to services pursuant to Section 1(d)), and (ii) the Company shall not be obligated to compensate you for any time that you could be compelled to expend if you were subpoenaed by the Company. The Company shall also reimburse you for any pre-approved reasonable business travel expenses that you incur on the Company’s behalf as a result of your litigation cooperation services, after receipt of appropriate documentation consistent with the Company’s business expense reimbursement policy.
11. Representations, Governing Law and Other Terms:
(a) This Agreement sets forth the complete and sole agreement between the parties and supersedes any and all other agreements or understandings, whether oral or written, except the Stock Option Plans, Equity Agreements, Change in Control Agreement (subject to its termination pursuant to this Agreement), and Nondisclosure and Developments Agreement. This Agreement may not be changed, amended, modified, altered or rescinded except upon the express written consent of the Company and you.
(b) If any provision of this Agreement, or part thereof, is held invalid, void or voidable as against public policy or otherwise, the invalidity shall not affect other provisions, or parts thereof, which may be given effect without the invalid provision or part. To this extent, the provisions and parts thereof of this Agreement are declared to be severable. Any waiver of any provision of this Agreement shall not constitute a waiver of any other provision of this Agreement unless expressly so indicated otherwise. The language of all parts of this Agreement shall in all cases be construed according to its fair meaning and not strictly for or against either of the parties.
(c) This Agreement and any claims arising out of this Agreement (or any other claims arising out of the relationship between the parties) shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts and shall in all respects be interpreted, enforced and governed under the internal and domestic laws of Massachusetts, without giving effect to the principles of conflicts of laws of such state.
(d) You represent that you have not been subject to any retaliation or any other form of adverse action by the Company Releasees for any action taken by you as an employee of the Company or resulting from your exercise of or attempt to exercise any statutory rights recognized under federal, state or local law.
(e) You may not assign any of your rights or delegate any of your duties under this Agreement. The rights and benefits of this Agreement shall inure to the benefit of the Company’s successors and assigns.
(f) This Agreement may be executed in counterparts. When both parties have executed their respective counterparts, this Agreement shall be considered to be fully executed and the counterparts shall together be considered one and the same Agreement.
12. Effective Date: After signing this Agreement, you may revoke this Agreement for a period of seven (7) days following said execution, by submitting a written revocation to counsel for the Company, Xxxx X. Xxxxxxxx, VP and General Counsel. The Agreement shall not become effective or enforceable and no payments will be made pursuant to this Agreement until this revocation period has expired (“Effective Date”).
If this letter correctly states the agreement and understanding we have reached, please indicate your acceptance by countersigning the enclosed copy and returning it to me.
Finally, Xxxxx, I want to thank you personally for your efforts and professionalism to help Helicos achieve its goals. I wish you the very best in the future.
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Very truly yours, |
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HELICOS BIOSCIENCES CORPORATION |
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By: |
/s/ Xxxxxx X. Xxxx |
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Xxxxxx X. Xxxx |
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Chief Executive Officer |
I REPRESENT THAT I HAVE READ THE FOREGOING AGREEMENT, THAT I FULLY UNDERSTAND THE TERMS AND CONDITIONS OF SUCH AGREEMENT AND THAT I AM KNOWINGLY AND VOLUNTARILY EXECUTING THE SAME. IN ENTERING INTO THIS AGREEMENT, I DO NOT RELY ON ANY REPRESENTATION, PROMISE OR INDUCEMENT MADE BY THE COMPANY OR ITS REPRESENTATIVES WITH THE EXCEPTION OF THE CONSIDERATION DESCRIBED IN THIS DOCUMENT.
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Accepted and Agreed to: |
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/s/ Xxxxxxx X. Xxxxxxxx |
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Xxxxxxx X. Xxxxxxxx |
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