SEVERANCE AGREEMENT
Exhibit 10.15
THIS SEVERANCE AGREEMENT is made as of January 21, 2021 (the “Effective Date”), by and between MaxCyte, Inc., a Delaware corporation (the "Company"), and Xxxxxx Xxxxxx (the "Executive").
1. Defined Terms. Definitions of certain capitalized terms used in this Agreement are provided in Section 8 and elsewhere in this Agreement.
2. Term of Agreement. This Agreement shall become effective on the date hereof and shall remain in effect indefinitely thereafter. Notwithstanding the foregoing, this Agreement shall terminate upon the earlier of (i) the Date of Termination, in the event the Executive’s employment is terminated by the Company for Cause or is terminated by the Executive without Good Reason, or (ii) the expiration of the Severance Period.
3. Agreement of The Company. In order to induce the Executive to remain in the employ of the Company, the Company agrees, under the terms and subject to the conditions set forth herein, including timely executing and not revoking the Release Agreement presented by the Company and complying with the notice requirements in Section 6, that, upon the occurrence of a Triggering Event after the Effective Date, provided that such Triggering Event constitutes a “separation from service” (as defined under Treasury Regulation Section 1.409A-1(h), without regard to any alternative definition thereunder, a “Separation from Service”), the Company shall provide to the Executive the benefits described in this Section 3 (collectively, the "Severance Benefits").
(1) The Company will pay to the Executive in equal monthly installments over the Severance Period a severance amount, in cash, equal to (1) the Executive's Annual Base Salary divided by twelve (12) for the duration of the Severance Period, subject to standard payroll deductions and withholdings, plus (2) the Executive’s Target Bonus, prorated for the number of months set forth in the Severance Period, subject to standard payroll deductions and withholding. These payments will begin on the first day of the month that is at least five (5) business days after the Release Effective Date, as defined below.
(2) 100% of the unvested shares subject to any stock options granted to the Executive that remain outstanding and would otherwise not be vested and exercisable as of the Executive’s date of termination will be treated as vested and exercisable as of Executive’s date of termination.
(1) If the Triggering Event occurs at any time prior to a Change of Control, in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination, the Company shall pay to the Executive in equal monthly installments over the Severance Period a severance amount, in cash, equal to the Executive's Annual Base Salary divided by twelve (12) for the duration of the Severance Period, subject to standard payroll deductions and withholdings, and less any amounts paid to the Executive with respect to the Severance Period under the Company’s Short Term or Long Term Disability Plan. These payments will begin on the first day of the month that is at least five (5) business days after the Release Effective Date. For clarity, if the Executive’s employment is terminated for any reason, whether by the Executive or the Company and whether with our without Cause or Good Reason, after twenty-four (24) Months following a Change of Control, the Executive shall not receive, nor be entitled to, any severance pay or benefits under the terms of this Agreement.
(2) If the Triggering Event occurs at any time within one-hundred eighty (180) days prior to a Change of Control, 100% of the unvested shares subject to any stock options granted to the Executive that remain outstanding and would otherwise not be vested and exercisable as of the Executive’s date of termination will be treated as vested and exercisable as of Executive’s date of termination.
- 2 - |
4. Non-Exclusivity of Rights. Nothing in this Agreement shall prevent or limit the Executive’s continuing or future participation in any benefit, bonus, incentive, or other plan or program provided by the Company (except for any severance or termination policies, plans, programs, or practices covered in Section 3(d)) and for which the Executive may qualify, nor shall anything herein limit or reduce such rights as the Executive may have under any other agreements with the Company (except for any severance or termination agreement). Amounts which are vested benefits or which the Executive is otherwise entitled to receive under any plan or program of the Company shall be payable in accordance with such plan or program, except as explicitly modified by this Agreement.
- 3 - |
6. Notice Requirements in the Event of Termination by the Executive. In consideration of the Company’s agreement to make the payments and to provide the benefits provided for in Section 3 hereof and as an express condition to receiving the Severance Benefits, the Executive agrees (a) to provide the Company with three (3) months’ Notice of Termination of his/her voluntary termination of his/her employment with the Company, other than for Good Reason, and to comply with the notice and cure periods set forth in the definition of Good Reason upon termination for Good Reason (in each case, the “Notice of Termination Period”), (b) to continue to perform his/her duties as an employee of the Company throughout the Notice of Termination Period, (c) to cooperate with the Company in the transfer of his/her duties to a successor employee during the Notice of Termination Period, and (d) notwithstanding any action he/she may take to the contrary, (i) during the Notice of Termination Period he/she shall be deemed to be an employee of the Company and (ii) the Notice of Termination Period shall be deemed to be “during the term of employment” for purposes of the Invention, Non-Disclosure, and non-Competition Agreement entered into between the Executive and the Company.
- 4 - |
- 5 - |
To the Company:
Attention: CEO
00 Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
With a copy to:
Attention: Legal
00 Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
To the Executive:
Name: Xxxxxx Xxxxxx
Address: 000 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
(g) Modification, Waiver. No provision of this Agreement may be modified, waived, or discharged unless such waiver, modification, or discharge is agreed to in writing and signed by the Executive and such officer as may be specifically designated by the Board or its delegee. No waiver by either party hereto at any time of any breach by the other party hereto of, or compliance with, any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time.
(i) Governing Law. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of Maryland without regard to principles of conflicts of laws thereof.
- 6 - |
- 7 - |
8. Definitions.
(a) "Annual Base Salary" means the Executive's total base salary during the twelve (12) month period preceding the Executive's Date of Termination.
(b) "Board" means the Board of Directors of the Company.
(c) “Cause” or for or with “Cause” means with respect to the Executive any of the following as determined by the Board, in its sole discretion, (a) fraud or intentional misrepresentation, (b) embezzlement, misappropriation or conversion of assets or opportunities of the Company, (c) acts or omissions that are in bad faith or constitute gross negligence, or willful or reckless misconduct, or (d) conviction, plea of guilty or nolo contendere, or judicial determination of civil liability, based on a federal or state felony or serious criminal or civil offense.
(d) “Change of Control” means any one of the following events:
(i) The date that any Person (other than the Company, any employee benefit plan of the Company or any entity holding shares of Common Stock or other securities of the Company for or pursuant to the terms of any such plan) in a transaction or series of transactions, has become the beneficial owner, directly or indirectly (with beneficial ownership determined as provided in Rule 13d-3, or any successor rule, under the Exchange Act), of securities of the Company entitling such person to fifty percent (50%) or more of all votes (without consideration of the rights of any class or stock to elect directors by a separate class vote) to which all stockholders of the Company would be entitled in the election of the Board, were an election held on such date; provided, however, notwithstanding the foregoing, a Change of Control will not be deemed to occur (A) on account of the acquisition of securities of the Company directly from the Company, (B) on account of the acquisition of securities of the Company by an investor, any affiliate thereof or any other Person that acquires the Company’s securities in a transaction or series of related transactions the primary purpose of which is to obtain financing for the Company through the issuance of equity securities, or (C) solely because the level of ownership held by any Person (the “Subject Person”) exceeds the designated percentage threshold of the outstanding voting securities as a result of a repurchase or other acquisition of voting securities by the Company reducing the number of shares outstanding, provided that if a Change of Control would occur (but for the operation of this clause) as a result of the acquisition of voting securities by the Company, and after such share acquisition, the Subject Person becomes the owner of any additional voting securities that, assuming the repurchase or other acquisition had not occurred, increases the percentage of the then outstanding voting securities owned by the Subject Person over the designated percentage threshold, then a Change in Control will be deemed to occur;
- 8 - |
(ii) the date, during any period of two consecutive years, when individuals who at the beginning of such period constitute the Board of the Company cease for any reason to constitute at least a majority thereof, unless the election, or the nomination for election by the stockholders of the Company, of each new director was approved by a vote of at least two-thirds of the directors then still in office who were directors at the beginning of such period; or
(iii) the consummation of: (1) a merger or consolidation of the Company with another corporation where the stockholders of the Company, immediately prior to the merger or consolidation, do not beneficially own, immediately after the merger or consolidation, shares of the corporation issuing cash or securities in the merger or consolidation entitling such stockholders to fifty percent (50%) or more of all votes (without consideration of the rights of any class of stock to elect directors by a separate class vote) to which all stockholders of such corporation would be entitled in the election of directors, or where the members of the Board or the Company, immediately prior to the merger or consolidation, do not, immediately after the merger or consolidation, constitute a majority of the board of directors of the corporation issuing cash or securities in the merger or consolidation; or (2) a sale or other disposition of all or substantially all the assets of the Company and its subsidiaries, other than a sale or other disposition to an entity, more than 50% of the combined voting power of the voting securities of which are owned by stockholders of the Company in substantially the same proportions as their ownership of the outstanding voting securities of the Company immediately prior to such sale or other disposition;
but only if the applicable transaction otherwise constitutes a “change in control event” for purposes of Section 409A of the Code and Treas. Reg. §1.409A-3(i)(5).
(e) “Code” shall mean the Internal Revenue Code of 1986, as amended.
(f) "Date of Termination" has the meaning assigned to such term in Section 5(a) hereof.
(g) “Exchange Act” means the Securities Exchange Act of 1934, as amended.
(h) "Good Reason" means the occurrence of any of the following events:
(i) any action by the Company which results in a material reduction in Executive’s duties (including responsibilities and/or authorities), excluding for this purpose an isolated and inadvertent action not taken in bad faith that is remedied by the Company promptly after receipt of notice thereof given by the Executive, and provided, however, that a change in job position shall not be deemed a “material reduction” in and of itself unless the Executive’s new duties are materially reduced from the prior duties;
- 9 - |
(ii) a change in the Executive’s title (unless agreed to by Executive) or a reduction by the Company in the Executive's annual base salary as in effect on the date hereof or as the same may be increased from time to time, except for an across the board salary reduction affecting all senior executives of the Company and which is implemented before a Change of Control occurs; and
(iii) the failure by the Company to honor all the terms and provisions of this Agreement or any other agreement between the Executive and the Company;
provided, however, that in order to resign for Good Reason, the Executive must (1) provide written notice to the Company’s [General Counsel] within 30 days after the first occurrence of the event giving rise to Good Reason setting forth the basis for the Executive’s resignation, (2) allow the Company at least 30 days from receipt of such written notice to cure such event, and (3) if such event is not reasonably cured within such period, the Executive’s resignation from all positions the Executive then holds with the Company is effective not later than 90 days after the expiration of the cure period.
(i) “Notice Period” has the meaning ascribed to such term in Section 7(o) hereof.
(j) "Notice of Termination" has the meaning assigned to such term in Section 5(a) hereof.
(k) “Notice of Termination Period” has the meaning assigned to such term in Section 6 hereof.
(l) “Person” means a "person" as used in Sections 3(a)(9) and 13(d) of the Exchange Act, or any group of Persons acting in concert that would be considered “persons acting as a group” within the meaning of Treas. Reg. §1.409A-3(i)(5).
(m) “Severance Benefits” has the meaning assigned to such term in Section 3 hereof.
(n) "Severance Period" means the nine (9) month period following the Date of Termination.
(o) “Target Bonus” means of the greater of (i) the actual bonus amount earned by the Executive under the Company’s bonus plan with respect to the calendar year prior to the calendar year in which the Termination Date occurs, (ii) the actual bonus amount earned by the Executive under the Company’s bonus plan for the calendar year in which the Termination Date occurs, or (iii) the Executive’s target bonus amount under the Company’s bonus plan for the calendar year in which the Termination Date occurs.
(p) "Triggering Event" means (i) the termination of the Executive's employment by the Company, other than a termination for Cause, or (ii) a termination of the Executive's employment by the Executive for Good Reason, in each case prior to a Change of Control or on or within twenty-four months following a Change of Control.
- 10 - |
[signature page follows]
MAXCYTE, INC. | ||
By: | /s/ Xxxxxxx X. Xxxxxxxx | |
Xxxxxxx X. Xxxxxxxx | ||
President & CEO | ||
EXECUTIVE | ||
By: | /s/ Xxxxxx Xxxxxx | |
Xxxxxx Xxxxxx | ||
CFO |
- 11 - |
Exhibit A
In consideration of the agreement of MaxCyte, Inc. (the “Company”) to enter into that certain MaxCyte, Inc. Severance Agreement, dated as of , 20 (the “Severance Agreement”), with and the promises and covenants of the Company and the undersigned made thereunder, the undersigned, on behalf of himself and his respective heirs, representatives, executors, family members, and assigns hereby fully and forever releases and discharges the Company, and its past, present and future directors, officers, employees, agents, attorneys, investors, administrators, affiliates, divisions, subsidiaries, predecessors, successors, and assigns (collectively the “Company Parties”) from and against, and agrees not to xxx or otherwise institute or cause to be instituted any legal, alternative dispute resolution, or administrative proceeding concerning, any claim, duty, obligation, or cause of action relating to any matters of any kind, whether presently known or unknown, suspected or unsuspected, that he may possess arising from any omissions, acts, or facts that have occurred through the date his employment terminates, including without limitation (individually a “Claim” and collectively “Claims”):
1. Any and all claims relating to or arising from his employment by the Company and the termination of such employment, including allegations that any of the Company Parties has violated its personnel policies, handbooks, contracts of employment, or covenants of good faith and fair dealing;
2. Any and all claims under the Severance Agreement or any other agreement or understanding governing the service relationship between the Company and the undersigned;
3 Any and all claims against any of the Company Parties for wrongful discharge, termination in violation of good policy, discrimination, breach of contract, both expressed or implied, covenants of good faith or fair dealing, both expressed or implied, promissory estoppel, negligent or intentional infliction of emotional distress, negligent or intentional misrepresentation, negligent or intentional interference with contract or prospective economic advantage, unfair business practice, defamation, libel, slander, negligence, personal injury, assault, battery, invasion of privacy, false imprisonment, or conversion;
4. Any and all claims against any of the Company Parties has discriminated against the Undersigned on the basis of age, race, color, sex (including sexual harassment), national origin, ancestry, disability, religion, sexual orientation, marital status, parental status, source of income, entitlement to benefits, any union activities or other protected category or has otherwise violated any federal, state or municipal statute, including, without limitation, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Age Discrimination in Employment Act of 1967, the Americans with Disabilities Act of 1990, the Fair Labor Standards Act, the Employee Retirement Income Security Act of 1974, the Worker Adjustment and Retraining Notification Act, the Equal Pay Act, the Genetic Information Nondiscrimination Act, the Family and Medical Leave Act, the Fair Employment Practice Act of Maryland, Md. Code Xxx., State Government, tit. 20, the Older Workers Benefit Protection Act, the anti-retaliation provisions of the Xxxxxxxx-Xxxxx Act, or any other federal or state law regarding whistleblower retaliation, the Xxxxx Xxxxxxxxx Fair Pay Act, the Uniformed Services Employment and Reemployment Rights Act, the Fair Credit Reporting Act, the National Labor Relations Act; and all amendments to each such Acts as well as the regulations issued there under;
5. Any and all claims based on the violation of the federal or any state constitution;
- 12 - |
6. Any and all claims for attorneys’ fees and costs.
Notwithstanding the foregoing, other than events expressly contemplated by this Release the Undersigned does not waive or release rights or Claims that may arise from events that occur after the date this waiver is executed, nor any right under the Severance Agreement, and the Undersigned is not releasing any right of indemnification he may have for any liabilities arising from his actions within the course and scope of his employment with the Company. Also excluded from this Release are any Claims which cannot be waived by law, including, without limitation, any rights the Undersigned may have under applicable workers’ compensation laws and his/her right, if applicable, to file or participate in an investigative proceeding of any federal, state or local governmental agency. Nothing in this Release shall prevent the Undersigned from filing, cooperating with, or participating in any proceeding or investigation before the Equal Employment Opportunity Commission, United States Department of Labor, the National Labor Relations Board, the Occupational Safety and Health Administration, the Securities and Exchange Commission or any other federal government agency, or similar state or local agency (“Government Agencies”), or exercising any rights pursuant to Section 7 of the National Labor Relations Act. The Undersigned further understands this Release does not limit his ability to voluntarily communicate with any Government Agencies or otherwise participate in any investigation or proceeding that may be conducted by any Government Agency, including providing documents or other information, without notice to the Company. While this Release does not limit the Undersigned’s right to receive an award for information provided to the Securities and Exchange Commission, the Undersigned understands and agrees that, he is otherwise waiving, to the fullest extent permitted by law, any and all rights he may have to individual relief based on any Claims that he has released and any rights he has waived by signing this Release. If any Claim is not subject to release, to the extent permitted by law, the Undersigned waives any right or ability to be a class or collective action representative or to otherwise participate in any putative or certified class, collective or multi-party action or proceeding based on such a Claim in which any of the Company Parties is a party. This Release does not abrogate the Undersigned existing rights under any Company benefit plan or any plan or agreement related to equity ownership in the Company; however, it does waive, release and forever discharge Claims existing as of the date the Undersigned executes this Release pursuant to any such plan or agreement.
The Undersigned acknowledges and agrees that (i) the consideration given to the Undersigned in exchange for the waiver and release in this Release is in addition to anything of value to which the Undersigned was already entitled, and (ii) that the Undersigned has been paid for all time worked, has received all the leave, leaves of absence and leave benefits and protections for which the Undersigned is eligible, and has not suffered any on-the-job injury for which the Undersigned has not already filed a Claim. The Undersigned affirms that all of the decisions of the Company Parties regarding his pay and benefits through the date of his execution of this Release were not discriminatory based on age, disability, race, color, sex, religion, national origin or any other classification protected by law. The Undersigned affirms that he has not filed or caused to be filed, and is not presently a party to, a Claim against any of the Company Parties. The Undersigned further affirms that he has no known workplace injuries or occupational diseases. The Undersigned acknowledges and affirms that he has not been retaliated against for reporting any allegation of corporate fraud or other wrongdoing by any of the Company Parties, or for exercising any rights protected by law, including any rights protected by the Fair Labor Standards Act, the Family Medical Leave Act or any related statute or local leave or disability accommodation laws, or any applicable state workers’ compensation law.
- 13 - |
The undersigned acknowledges that (i) he has been advised by Company to consult a lawyer of his own choice prior to executing this release and has done so or voluntarily declined to seek such counsel, (ii) he has read this release and understands the terms and conditions hereof and the binding nature hereof, (iii) he has had at least twenty-one (21) days within which to consider the terms of this release and executed this release voluntarily and without duress or undue influence on the part of the Company, (iv) he has seven (7) days to revoke his execution of this release and that such execution shall not be effective until seven (7) days following delivery to the Company, and (v) he understands that his right to receive payments under Paragraph 3 of the Severance Agreement is subject to and conditioned on the undersigned’s signing and delivering this release to Company and its becoming effective.
Initially capitalized terms used in this release and defined in the Severance Agreement shall have the meanings given to such terms under the Severance Agreement.
Printed Name | ||
Signature | ||
Date: |
State of ______________
County of_____________
On this ___ day of ____, 20__, personally appeared before me, a Notary Public, the above named ________________________________, known to me, or satisfactorily proven, to be the person whose name is subscribed to the above instrument and who acknowledged that he executed the same for the purposes therein contained.
WITNESS my hand and official seal
(notary signature) | ||
My Commission Expires: |
- 14 - |