EXECUTIVE RETENTION AGREEMENT
EXHIBIT
10.1
This
EXECUTIVE RETENTION AGREEMENT ("Agreement"), dated
effective as of December 22, 2010 (the "Effective Date"), is
entered into between Dyax Corp., a Delaware corporation with offices at 000
Xxxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000 ("Dyax" or the "Company") and Xxxxxx
Xxxxxxxxxxx (the "Executive").
WHEREAS,
the Executive is an executive officer and key member of the Dyax management
team.
WHEREAS, Dyax believes that it is in
the best interests of the Company and of its stockholders to provide for the
continuity and retention of its executive officers, including the
Executive.
NOW,
THEREFORE, as an inducement for and in consideration of the Executive remaining
in the employ of the Company and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Company and the
Executive agree that the Executive shall receive the severance payments set
forth in this Agreement in the event the Executive's employment with the Company
is terminated under the circumstances described below.
|
1.
|
DEFINITIONS.
|
Capitalized
terms that are not defined herein shall have the meanings set forth in Exhibit A attached
hereto.
|
2.
|
EMPLOYMENT
STATUS.
|
The
Executive acknowledges that this Agreement does not constitute a contract of
employment or impose on the Company any obligation to retain the Executive as an
employee and that this Agreement does not prevent the Company or the Executive
from terminating his or her employment at any time, for any reason, before or
after a Change in Control.
|
3.
|
TERM
OF AGREEMENT
|
3.1 Term. This
Agreement, and all rights and obligations of the parties hereunder, shall take
effect upon the Effective Date and shall continue through the third anniversary
of the Effective Date (the "Term"); provided, however, that that
the Term shall be extended as follows:
|
|
(a)
|
Annual
Extension. Commencing on third anniversary of the
Effective Date and each anniversary of the Effective Date thereafter (each
hereinafter referred to as a "Renewal Date"),
the Term shall be automatically extended for one additional year so as to
terminate one year after such Renewal Date, unless at least one year prior
to such Renewal Date, the Company shall have given the Executive written
notice that the Term will not be
extended.
|
|
|
(b)
|
Extension Following
Change in Control or Termination of Employment. If a
Change in Control shall have occurred during the Term, then the Term shall
automatically be extended for an additional year until one year after the
closing of the transaction giving rise to the Change in
Control. If either a termination of employment covered by
Section 5.1 or a Change in Control covered by Section 5.2 shall have
occurred during the Term, then the Term shall be extended through the
Severance Period (or to such later date by which the Company has fulfilled
all of its obligations under Section
5).
|
|
4.
|
NOTICE
OF TERMINATION OF EMPLOYMENT.
|
4.1 Notice of
Termination. Any termination of the Executive's employment by
the Company, or by the Executive prior to the first anniversary of a Change in
Control (other than due to the death or Disability of the Executive) shall be
communicated by a written notice to the other party hereto (the "Notice of
Termination"), given in accordance with Section 8.2. Any
Notice of Termination shall: (i) indicate (in the case of a termination by the
Company) whether such termination is for Cause and (in the case of a termination
by the Executive within one (1) year following a Change in Control) whether such
termination is for Good Reason, (ii) to the extent applicable, set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of the Executive's employment for Cause or for Good Reason, and
(iii) specify the Termination Date.
4.2 Timing of
Notice.
|
|
(a)
|
Any
Notice of Termination for Cause given by the Company must be given within
ninety (90) days of the initial existence of the occurrence or condition
that constitutes Cause.
|
|
|
(b)
|
Any
Notice of Termination for Good Reason given by the Executive must be given
within thirty (30) days of the initial existence of the occurrence or
condition that constitutes Good Reason. If the condition is capable of
being corrected, the Company shall have thirty (30) days during which it
may remedy the condition (the "Cure Period").
Notwithstanding the occurrence of any such event or circumstance, such
occurrence shall not be deemed to constitute Good Reason if such event or
circumstance has been fully corrected within the Cure
Period. If the condition is not corrected, the Executive must
leave employment within ninety (90) days after the Company fails to cure
the condition giving rise to the Executive's claim for Good Reason during
the Cure Period.
|
|
5.
|
BENEFITS
TO EXECUTIVE.
|
5.1 Termination Prior to Change
in Control. If, prior to a Change in Control (including a
situation in which a Change in Control never occurs), the Company terminates the
Executive's employment other than for Cause, Disability or death, then
notwithstanding anything to the contrary contained in any prior agreement, the
Executive shall be entitled to benefits described in subsections (a) through (d)
below, the distribution of which shall be subject to the provisions of Sections
5.4, 5.5 and 5.8.
|
|
(a)
|
The
Company shall pay to the Executive on the Termination Date, in a lump sum,
in cash (less applicable withholdings), (i) all base salary and accrued
vacation pay earned by the Executive through the Termination Date (the
"Accrued
Obligations"); and (ii) the Executive's actual incentive bonus
earned, based on the achievement of corporate and individual goals through
the date of Executive's termination; provided however, that if any portion
of the Executive's actual incentive bonus earned is not determinable as of
the date of termination, Executive shall receive for that portion an
amount equal to the pro rated portion of Executive's annual target bonus,
based upon the number of days during such calendar year that the Executive
had been employed prior to the Termination
Date.
|
|
|
(b)
|
During
the Severance Period, the Company shall continue to pay to the Executive,
in accordance with the Company's regular payroll practices, the
Executive's base salary.
|
|
|
(c)
|
During
the Severance Period, the Company shall continue to provide coverage to
the Executive in accordance with and subject to the terms of the
applicable welfare benefit plans of the Company in effect on the
Termination Date; provided, however, that if the Executive becomes
reemployed with another employer and is eligible to receive a particular
type of benefits (e.g., health insurance benefits) from such employer,
then the Company shall no longer be required to provide those particular
benefits to the Executive.
|
-2-
|
|
(d)
|
With
respect to any stock options granted to the Executive by the Company prior
to the Termination Date:
|
|
|
(i)
|
any
such stock options that are unvested as of the Termination Date shall
continue to vest through the Severance Period;
and
|
|
|
(ii)
|
all
such stock options shall remain exercisable by the Executive for ninety
(90) days following the conclusion of the Severance Period but in no event
beyond the maximum term of any such stock
options.
|
The
Executive acknowledges and agrees that the provisions of this Section 5.1(d)
shall cause all stock options which had previously been qualified as Incentive
Stock Options under Section 422 of the Internal Revenue Code of 1986, as amended
(the "Code",
which term shall include applicable Treasury Regulations) to become
non-qualified options and lose, irrevocably, any tax-advantaged treatment
previously available, except to the extent that the effectiveness of such
provisions would permit such options to qualify as a grant of new Incentive
Stock Options under Section 422 (in which case the exception shall be applied by
the Company to the Options with the lowest exercise prices as Incentive Stock
Options up to the $100,000 limit in Section 422).
5.2 Termination Following Change
in Control. If the Company terminates the Executive's
employment other than for Cause, Disability or death within twelve (12) months
following a Change in Control, or if the Executive terminates his or her
employment for Good Reason within twelve (12) months following a Change in
Control, then notwithstanding anything to the contrary contained in any prior
agreement, the Executive shall be entitled to benefits described in subsections
(a) through (d) below, the distribution of which shall be subject to the
provisions of Sections 5.4, 5.5 and 5.8:
|
|
(a)
|
The
Company shall pay to the Executive on the Termination Date, in a lump sum,
in cash (less applicable
withholdings):
|
|
|
(i)
|
the
Accrued Obligations;
|
|
|
(ii)
|
the
Executive's annual target bonus for the calendar year in which the
termination occurred, pro-rated based upon the number of days during such
calendar year that the Executive had been employed prior to the
Termination Date; and
|
|
|
(iii)
|
an
amount equal to one hundred fifty percent (150%) of the Executive's annual
base salary and target bonus.
|
|
|
(b)
|
During
the Severance Period, the Company shall continue to provide coverage to
the Executive in accordance with and subject to the terms of the
applicable welfare benefit plans of the Company in effect on the
Termination Date; provided, however, that if the Executive becomes
reemployed with another employer and is eligible to receive a particular
type of benefits (e.g., health insurance benefits) from such employer,
then the Company shall no longer be required to provide those particular
benefits to the Executive; and
|
-3-
|
|
(c)
|
With
respect to any stock options granted to the Executive by the Company prior
to the Termination Date:
|
|
|
(i)
|
any
such stock options that are unvested as of the Termination Date shall
become immediately exercisable effective as of the Termination Date;
and
|
|
|
(ii)
|
all
such stock options shall remain exercisable by the Executive for ninety
(90) days following the conclusion of the Severance Period but in no event
beyond the maximum term of any such stock
options.
|
The
Executive acknowledges and agrees that the provisions of this Section 5.1(d)
shall cause any stock options which had previously been qualified as Incentive
Stock Options under Section 422 of the Code to become non-qualified options and
lose, irrevocably, any tax-advantaged treatment previously
available.
5.3 Termination for Cause,
Disability or Death. If the Company terminates the Executive's
employment for Cause, Disability or death, whether prior to or following a
Change in Control, then the Company shall pay the Executive (or his or her
estate, if applicable), in a lump sum in cash on the Termination Date, the
Accrued Obligations and (ii) to the extent not previously paid or provided,
timely pay or provide to the Executive any other amounts or benefits required to
be paid or provided or which the Executive is eligible to receive following the
Executive's termination of employment under any plan, program, policy, practice,
contract or agreement of the Company and its subsidiaries (such other amounts
and benefits shall be hereinafter referred to as the "Other Benefits"), the
distribution of which shall be subject to the provisions of Section
5.8.
5.4 Section 280G
Provisions.
|
|
(a)
|
If
the Company undergoes a Change in Ownership or Control (as defined below)
and any portion of the Contingent Compensation Payments (as defined below)
payable to the Executive hereunder would constitute Excess Parachute
Payments (as defined below), then, subject to
Section 5.4(b) below, the Company shall reduce the Contingent Compensation
Payments (as defined below) to the extent necessary to eliminate such
Excess Parachute Payments. For purposes of this Section 5.4,
the Contingent Compensation Payments so eliminated shall be referred to as
the "Eliminated
Payments" and the aggregate amount (determined in accordance with
Treasury Regulation Section 1.280G-1, Q/A-30 or any successor provision)
of the Contingent Compensation Payments so eliminated shall be referred to
as the "Eliminated
Amount."
|
|
|
(b)
|
Notwithstanding
anything to the contrary contained in Section 5.4(a), no such reduction in
Contingent Compensation Payments shall be made if (i) the Eliminated
Amount exceeds (ii) the amount of the excise tax imposed on the Executive
by Section 4999 of the Code with respect to the Excess Parachute Payments.
The override of such reduction in Contingent Compensation Payments
pursuant to this Section 5.4(b) shall be referred to as a "Section 5.4(b)
Override."
|
|
|
(c)
|
For
purposes of this Section 5.4 the following terms shall have the following
respective meanings:
|
|
|
(i)
|
"Change in Ownership or
Control" shall mean a change in the ownership or effective control
of the Company, or in the ownership of a substantial portion of the assets
of the Company, determined in accordance with Section 280G(b)(2) of the
Code.
|
-4-
|
|
(ii)
|
"Contingent
Compensation Payment" shall mean any payment (or benefit) in the
nature of compensation that is made or made available (under this
Agreement or otherwise) to a "disqualified individual" (as defined in
Section 280G(c) of the Code) and that is contingent (within the meaning of
Section 280G(b)(2)(A)(i) of the Code) on a Change in Ownership or Control
of the Company.
|
|
|
(iii)
|
"Excess Parachute
Payment" shall mean a payment described in Section 280G(b)(1) of
the Code (calculated based on the applicable federal rate in effect on the
Effective Date).
|
|
|
(d)
|
Any
payments or other benefits otherwise due to the Executive following a
Change in Ownership or Control that could reasonably be characterized (as
determined by the Company) as Contingent Compensation Payments (the "Potential
Payments") shall not be made until the dates provided for in this
Section 5.4(d).
|
|
|
(i)
|
In
the event that the Company undergoes a Change in Ownership or Control, and
the Executive becomes entitled to receive Contingent Compensation Payments
relating to such Change in Ownership or Control, the Company shall (A)
determine at such time or times as may be necessary to comply with the
requirements under Section 280G of the Code whether such Contingent
Compensation Payments constitute in whole or in part Excess Parachute
Payments and (B) in the event the Company determines that such Contingent
Compensation Payments constitute in whole or in part Excess Parachute
Payments, notify the Executive (within 30 days after each such
determination and with reasonable detail regarding the basis for its
determinations) of the following: (1) which Potential Payments constitute
Contingent Compensation Payments, (2) the Eliminated Amount, and (3)
whether the Section 5.4(b) Override is
applicable.
|
|
|
(ii)
|
Within
thirty (30) days after delivery of such notice to the Executive, the
Executive shall deliver a response to the Company (the "Executive
Response") stating either (A) that the Executive agrees with the Company's
determination pursuant to the preceding sentence, or (B) that the
Executive disagrees with such determination, in which case the Executive
shall set forth (1) which Potential Payments should be characterized as
Contingent Compensation Payments, (2) the Eliminated Amount, or (3)
whether the Section 5.4(b) Override is
applicable.
|
|
|
(iii)
|
If
and to the extent that any Contingent Compensation Payments are required
to be treated as Eliminated Payments pursuant to this Section 5.4 and the
Section 5.4(b) Override is not applicable, then the Payments shall be
reduced or eliminated, as determined by the Company, in the following
order: (A) any cash payments, (B) any vesting of equity awards, (C) any
taxable benefits, and (D) any nontaxable benefits, in each case beginning
with payments or benefits that are to be paid the farthest in time from
the date that triggers the applicability of the excise tax, to the extent
necessary to maximize the Eliminated
Payments.
|
-5-
|
|
(iv)
|
If
the Executive fails to deliver an Executive Response on or before the
required date, the Company's initial determinations shall be final, and
the Company shall make the Potential Payments (other than the Eliminated
Payments) to the Executive within ten (10) business days following the due
date for delivery to the Company of the Executive Response (except for any
Potential Payments which are not due to be made until after such date,
which Potential Payments shall be made on the date on which they are
due).
|
|
|
(v)
|
If
the Executive states in the Executive Response that he or she agrees with
the Company's determinations, the Company's initial determinations shall
be final, the Contingent Compensation Payments that shall be treated as
Eliminated Payments shall be as set forth in the Executive Response, and
the Company shall make the Potential Payments (other than the Eliminated
Payments) to the Executive within ten (10) business days following
delivery to the Company of the Executive Response (except for any
Potential Payments which are not due to be made until after such date,
which Potential Payments shall be made on the date on which they are
due).
|
|
|
(vi)
|
If
the Executive states in the Executive Response that he or she disagrees
with the Company's determinations, then, for a period of thirty (30) days
following delivery of the Executive Response, the Executive and the
Company shall use good faith efforts to resolve such dispute. If such
dispute is not resolved within such thirty (30) day period, such dispute
shall be settled exclusively by arbitration in Boston, Massachusetts, in
accordance with the rules of the American Arbitration Association then in
effect. Judgment may be entered on the arbitrator's award in any court
having jurisdiction. The Company shall, within ten (10) business days
following delivery to the Company of the Executive Response, make to the
Executive those Potential Payments as to which there is no dispute between
the Company and the Executive regarding whether they should be made
(except for any such Potential Payments which are not due to be made until
after such date, which Potential Payments shall be made on the date on
which they are due). The balance of the Potential Payments (other than
Eliminated Payments) shall be made within ten (10) business days following
the resolution of such dispute.
|
|
|
(vii)
|
Subject
to the limitations contained in Sections 5.4(a) and (b) hereof, the amount
of any payments to be made to the Executive following the resolution of
such dispute shall be increased by amount of the accrued interest thereon
computed at the prime rate announced from time to time by Bank of America,
compounded monthly from the date that such payments originally were
due.
|
|
|
(viii)
|
In
the event the Company is required to perform a redetermination in
accordance with Treas. Reg. 1.280G-1 Q/A-33(b) with respect to any
Contingent Compensation Payments, this Section 5.4(d) shall apply with
respect to such redetermination and the parties shall make such
adjustments as may be necessary as a result of such redetermination
including, if appropriate, the payment by the Company of Contingent
Compensation Payments previously treated as Eliminated Payments if the
Section 5.4(b) Override applies as a result of such
redetermination.
|
-6-
|
|
(e)
|
The
provisions of this Section 5.4 are intended to apply to any and all
payments or benefits available to the Executive under this Agreement or
any other agreement or plan of the Company under which the Executive
receives Contingent Compensation
Payments.
|
5.5 Release. The
obligation of the Company to make the payments and provide the benefits to the
Executive under Section 5.1, 5.2 or 5.3 is conditioned upon the Executive
signing a release of claims in the form attached hereto as Exhibit B, or such
other form as may be agreed to by the Company and the Executive (the "Employee Release"),
within twenty-one (21) days (the "Release Period")
following the Termination Date and upon the Executive not revoking the Employee
Release in a timely manner thereafter. Provided that the Employee Release has
become binding, the payments to the Executive under Section 5.1 or 5.2 shall be
payable or shall commence on the 30th day following the Termination Date.
Notwithstanding the foregoing, the provisions of benefits under Section 5.1(c)
and 5.2(c) shall continue during the Release Period and any applicable
revocation period.
5.6 Exclusive Severance
Benefits. The making of the payments and the provision of the
benefits by the Company to the Executive under Section 5.1, 5.2 or 5.3 shall
constitute the entire obligation of the Company to the Executive as a result of
the termination of his or her employment under the circumstances set forth in
such Sections, and the Executive shall not be entitled to additional payments or
benefits under any other plan, program, policy, practice, contract or agreement
of the Company or its subsidiaries.
5.6 Mitigation. The
Executive shall not be required to mitigate the amount of any payment or
benefits provided for in Section 5.1, 5.2 or 5.3 by seeking other employment or
otherwise. Further, except as provided in Section 5.1(c) and 5.2(c), the amount
of any payment or benefits provided for in Section 5.1, 5.2 or 5.3 shall not be
reduced by any compensation earned or benefits received by the Executive as a
result of employment by another employer.
5.8 Section
409A. A termination of employment shall not be deemed to have
occurred for purposes of any provision of this Agreement providing for the
payment of any amounts or benefits that is considered deferred compensation upon
or following a termination of employment unless such termination of employment
is also a "separation from service" within the meaning of Code Section
409A. If the Executive is a "specified employee" on the date of
termination within the meaning of that term under Code Section 409A(a)(2)(B),
then with regard to any payment or the provision of any benefit that is
considered deferred compensation under Code Section 409A payable on account of a
"separation from service," such payment or benefit shall be made or provided at
the date which is the earlier of (i) the expiration of the six (6) month period
measured from the date of the Executive's "separation from service", and (ii)
the date of the Executive's death (the "Delay
Period"). Upon the expiration of the Delay Period, all
payments and benefits delayed pursuant to this provision shall be paid or
reimbursed to the Executive in a lump sum in cash.
5.9 Potential Recovery of
Incentive Compensation. Notwithstanding any other provision of
this Agreement or the Certificate of Incorporation or by-laws of the Company
(including for this purpose any provision for indemnification), any compensation
paid to the Executive pursuant to this Agreement or in accordance with its terms
shall be subject to any policy or arrangement regarding recovery of
incentive-based compensation (which may include stock options awarded as
compensation and may exclude indemnification of the Executive for any such
recovery) hereafter adopted by the Board of Directors of the
Company in order to comply with (i) Section 954 of the Xxxx-Xxxxx Xxxx
Street Reform and Consumer Protection Act of 2010, or any law of similar
effect for recovery of incentive-based compensation previously paid, and (ii)
any regulations promulgated pursuant to any such law.
-7-
|
6.
|
ADDITIONAL
COVENANTS
|
6.1 Non-Competition. During
the Restricted Period, the Executive shall not, without the Company's prior
written consent, directly or indirectly, as principal, employee, consultant,
partner or stockholder of, or in any capacity with, any business enterprise
(other than as a holder of not more than 1% of the combined voting power of the
outstanding stock of a publicly held company):
|
|
(a)
|
engage
in the research, development, production, marketing, or sale of a product
that competes (or, upon commercialization, will compete) with any product
that was marketed or sold by the Company prior to the termination of the
Executive's employment and on which the Executive worked or about which
the Executive acquired Confidential
Information;
|
|
|
(b)
|
engage
in the research, development, production, marketing, or sale of a product
that competes (or, upon commercialization, will compete) with any product
of the Company that had entered into a Phase 2 clinical trial prior to the
termination of the Executive's employment and on which the Executive
worked or about which the Executive acquired Confidential Information;
or
|
|
|
(c)
|
engage
in the research, development, design or commercialization of any display
technology which is licensed or sold (or marketed for license or sale) in
a manner that competes with the Company's phage display technology
licensing and funded research
program.
|
6.2 Non-Solicitation. During
the Restricted Period, the Executive shall not, without the Company's prior
written consent, directly or indirectly, as principal, employee, consultant,
partner or stockholder of, or in any capacity with, any business enterprise
(other than as a holder of not more than 1% of the combined voting power of the
outstanding stock of a publicly held company): (i) solicit, take away or hire
any employees or exclusive consultants of the Company; (ii) solicit or divert
any of the business being conducted by the Company; (iii) solicit, divert or
accept any business that is being actively pursued by the Company with any
customer or partner; or (iv) divert investors or potential investors from the
Company.
6.3 Non-Disparagement. During
the Term of this Agreement and at all times thereafter, the Executive shall not
make any disparaging remarks to any third party concerning the Company or any of
its officers, directors, agents, employees, successors and assigns which might
damage or adversely affect their respective reputations, goodwill, or
businesses.
|
7.
|
SETTLEMENT
OF DISPUTES; ARBITRATION.
|
All
claims by the Executive for benefits under this Agreement shall be directed to
the Board and shall be in writing. Any denial by the Board of a claim for
benefits under this Agreement shall be delivered to the Executive in writing and
shall set forth the reasons for the denial and the provisions of this Agreement
relied upon. Any further dispute or controversy arising under or in connection
with this Agreement shall be settled exclusively by arbitration in Boston,
Massachusetts, in accordance with the rules of the American Arbitration
Association then in effect. Judgment may be entered on the arbitrator's award in
any court having jurisdiction.
-8-
|
8.
|
MISCELLANEOUS.
|
8.1 Successors. This
Agreement shall be binding upon the Company and its successors and assigns. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
personal or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If the Executive should die while any
amount would still be payable to the Executive or his or her family hereunder if
the Executive had continued to live, all such amounts, unless otherwise provided
herein, shall be paid in accordance with the terms of this Agreement to the
executors, personal representatives or administrators of the Executive's
estate.
8.2 Notice. All
notices, instructions and other communications given hereunder or in connection
herewith shall be in writing. Any such notice, instruction or communication
shall be sent either (i) by registered or certified mail, return receipt
requested, postage prepaid, or (ii) prepaid via a reputable nationwide overnight
courier service, in each case addressed as follows:
|
If
to the Company, to:
|
|
|
000
Xxxxxxxxxx Xxxxxx
|
|
|
Xxxxxxxxx,
Xxxxxxxxxxxxx 00000
|
|
|
Attention: Director
of Human Resources
|
|
|
Attention: Corporate
Counsel
|
|
|
If
to the Executive, to:
|
Xxxxxx
Xxxxxxxxxxx
|
|
0
Xxxxxxxxx Xxxx
|
|
|
Xxxxxxxxx,
XX 00000
|
or to
such other address as either the Company or the Executive may have furnished to
the other in writing in accordance herewith). Any such notice, instruction or
communication shall be deemed to have been delivered five business days after it
is sent by registered or certified mail, return receipt requested, postage
prepaid, or one business day after it is sent via a reputable nationwide
overnight courier service. Either party may give any notice, instruction or
other communication hereunder using any other means, but no such notice,
instruction or other communication shall be deemed to have been duly delivered
unless and until it actually is received by the party for whom it is
intended.
8.3 Employment by
Subsidiary. For purposes of this Agreement, the Executive's
employment with the Company shall not be deemed to have terminated solely as a
result of the Executive continuing to be employed by a wholly-owned subsidiary
of the Company.
8.4 Executive's
Cooperation. During the Term and thereafter, in the latter
case subject to the Company's payment of the Executive's reasonable
out-of-pocket expenses that have been approved in advance, the Executive shall,
at reasonable times and subject to the Executive's other obligations, reasonably
cooperate with the Company and its subsidiaries in any internal investigation,
any administrative, regulatory or judicial proceeding or any dispute with a
third person as reasonably requested by the Company or any of its subsidiaries
(including the Executive being available to the Company and its subsidiaries
upon reasonable notice for interviews and factual investigations, appearing at
the Company's or any of its subsidiaries' request to give testimony without
requiring service of a subpoena or other legal process, volunteering to the
Company and its subsidiaries all pertinent information and turning over to the
Company and its subsidiaries all relevant documents which are or may come into
the Executive's possession with respect to which the Executive does not owe a
countervailing duty of confidentiality or nonuse, all at times and on schedules
that are reasonably consistent with the Executive's other permitted activities
and commitments).
-9-
8.5 Severability. The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this Agreement,
which shall remain in full force and effect.
8.6 Governing
Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the internal laws of the
Commonwealth of Massachusetts, without regard to conflicts of law
principles.
8.7 Waivers. No
waiver by the Executive at any time of any breach of, or compliance with, any
provision of this Agreement to be performed by the Company shall be deemed a
waiver of that or any other provision at any subsequent time.
8.8 Counterparts. This
Agreement may be executed in counterparts, each of which shall be deemed to be
an original but both of which together shall constitute one and the same
instrument.
8.9 Tax
Withholding. Any payments provided for hereunder shall be paid
net of any applicable tax withholding required under federal, state or local
law.
8.10 Entire
Agreement. This Agreement sets forth the entire agreement of
the parties hereto in respect of the subject matter contained herein and
supersedes all prior agreements, promises, covenants, arrangements,
communications, representations or warranties, whether oral or written, by any
officer, employee or representative of any party hereto in respect of the
subject matter contained herein; and any prior agreement of the parties hereto
in respect of the subject matter contained herein is hereby terminated and
cancelled, including without limitation that certain Employment Letter Agreement
between the Company and the Executive, dated as of April 26,
2007. Notwithstanding the foregoing, the Company's Employee
Confidentiality Agreement as in effect from time to time between the Company and
the Executive, shall not be superseded by or modified by the terms of this
Agreement and shall remain in full force and effect.
8.11 Amendments. This
Agreement may be amended or modified only by a written instrument executed by
both the Company and the Executive.
8.12 Executive's
Acknowledgements. The Executive acknowledges that he or she:
(a) has read this Agreement; (b) has been represented in the preparation,
negotiation, and execution of this Agreement by legal counsel of the Executive's
own choice or has voluntarily declined to seek such counsel; and (c) understands
the terms and consequences of this Agreement.
IN
WITNESS WHEREOF, the parties hereto have executed this Executive Retention
Agreement as an instrument under seal of the date first set forth
above.
|
EXECUTIVE
|
|||
|
By:
|
/s/ Xxxxx
Xxxxxxxxxx-Xxxxxxxx
|
/s/ Xxxxxx Xxxxxxxxxxx
|
|
|
|
Name: Xxxxx Xxxxxxxxxx-Xxxxxxxx |
Xxxxxx
Xxxxxxxxxxx
|
|
|
|
Title:
Executive Vice President Corporate Development
and General Counsel
|
||
-10-
EXHIBIT
A
DEFINED
TERMS
|
Board
|
"Board"
shall mean the Board of Directors of the
Company
|
|
Change in
Control
|
"Change
in Control" shall mean an event or occurrence set forth in any one or more
of subsections (a) through (d)
below:
|
|
|
(a)
|
any
"person," as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") (other
than the Company, any trustee or other fiduciary holding securities under
an employee benefit plan of the Company, or any corporation owned directly
or indirectly by the stockholders of the Company in substantially the same
proportion as their ownership of stock in the Company) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly (other than as a result of acquisitions of such
securities from the Company), of securities of the Company representing
fifty percent (50%) or more of the combined voting power of the Company's
then outstanding securities entitled to vote generally in the election of
directors;
|
|
|
(b)
|
individuals
who, as of the date hereof, constitute the Board (the "Incumbent Board")
cease for any reason to constitute at least a majority of the Board,
provided that any person becoming a director subsequent to the date hereof
whose election, or nomination for election by the Company's stockholders,
was approved by a vote of at least a majority of the directors then
comprising the Incumbent Board (other than an election or nomination of an
individual whose initial assumption of office is in connection with an
actual or threatened election contest relating to the election of
directors of the Company) shall be, for purposes of this Agreement,
considered to be a member of the Incumbent
Board;
|
|
|
(c)
|
the
consummation of a merger, share exchange or consolidation of the Company
or any subsidiary of the Company with any other entity (each a "Business
Combination"), other than (A) a Business Combination that would result in
the voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being
converted into voting securities of another entity) beneficial ownership,
directly or indirectly, of a majority of the combined voting power of the
Company or the surviving entity (including any person that, as a result of
such transaction, owns all or substantially all of the Company's assets
either directly or through one or more subsidiaries) outstanding
immediately after such Business Combination or (B) a merger, share
exchange or consolidation effected to implement a recapitalization of the
Company (or similar transaction) in which no "person" (as defined above)
is or becomes the beneficial owner of fifty percent (50%) or more of the
combined voting power of the Company's then outstanding securities;
or
|
|
|
(d)
|
the
stockholders of the Company approve (A) a plan of complete liquidation of
the Company; or (B) an agreement for the sale or disposition by the
Company of all or substantially all of the Company's assets but excluding
a sale or spin-off of a product line, business unit or line of business of
the Company if the remaining business is significant as determined by the
Company's board of directors in its sole
discretion.
|
Exhibit
A
|
Cause
|
"Cause"
shall mean:
|
|
|
(a)
|
the
willful and continued failure by the Executive to perform his or her
duties with the Company (other than any such failure resulting from
incapacity due to physical or mental illness or any failure resulting from
the Executive's termination of his or her employment with the Company for
Good Reason), as determined by the Company;
or
|
|
|
(b)
|
any
act of material misconduct (including insubordination) or the commission
of any act of dishonesty or moral turpitude in connection with the
Executive's employment, as determined by the Company;
or
|
|
|
(a)
|
the
Executive's conviction or plea of nolo contendere of a
felony or a crime involving moral
turpitude.
|
|
Disability
|
"Disability"
shall mean the Executive shall have been deemed "disabled" by the
institution appointed by the Company to administer the Company's Long-Term
Disability Plan (or successor
plan).
|
|
Good
Reason
|
"Good
Reason" shall mean the occurrence, without the Executive's written
consent, of any of the following events or
circumstances:
|
|
|
(a)
|
The
material diminution of the Executive's duties with the Company from that
immediately prior to the Change in Control;
or
|
|
|
(b)
|
A
material reduction by the Company (other than across-the-board reductions
applicable to all similarly situated employees of the Company and the
acquiror of the Company), in the Executive's base salary in effect
immediately prior to the Change in Control;
or
|
|
|
(c)
|
Any
requirement by the Company that the location at which the Executive
performs his or her principal duties for the Company be changed to a new
location that is more than fifty (50) miles from the location at which the
Executive performs his or her principal duties for the Company immediately
prior to the Change in Control.
|
|
Restricted
Period
|
"Restricted
Period" shall mean: (i) with respect to any termination that occurs under
Section 5.1 or 5.2, the period of twenty-one (21) months immediately
following the Termination Date; or (ii) with respect to any termination
that occurs under Section 5.3, the period of twelve (12) months
immediately following the Termination
Date.
|
|
Severance
Period
|
"Severance
Period" shall mean the period of eighteen (18) months immediately
following the Termination Date.
|
|
Termination
Date
|
"Termination
Date" shall mean the close of business on the date specified in the Notice
of Termination (which date may not be less than fifteen (15) business days
or more than one hundred twenty (120) days after the date of delivery of
such Notice of Termination), in the case of a termination other than one
due to the Executive's Disability or death, or the date of the Executive's
Disability or death, as the case may
be.
|
Exhibit
A
EXHIBIT
B
RELEASE
In
consideration of the payment to me of the severance benefits pursuant to my
Executive Severance Benefit Agreement with Dyax Corp. (the "Company") dated
___________________, 2010 (the "Agreement"), I hereby
agree as follows:
1.
I, on behalf of myself and my representatives, agents, estate,
heirs, successors and assigns, hereby irrevocably and unconditionally release,
remise and discharge the Company, its officers, directors, stockholders,
affiliates (within the meaning of the Securities Act of 1933), attorneys, agents
and employees, and their respective predecessors, successors and assigns
(collectively, the "Company Releasees"),
from any and all actions or causes of action, suits, claims, complaints,
liabilities, contracts, torts, debts, damages, controversies, rights and
demands, whether existing or contingent, known or unknown, arising up to and
through the date of this Release out of my employment, or the termination of my
employment, with the Company, including, but not limited to, all employment
discrimination claims under the Age Discrimination in Xxxxxxxxxx Xxx, 00 X.X.X.
§000 et seq., Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq., the Americans With Disabilities Act of 1990, 42 U.S.C. § 12101 et seq.,
the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq., the Worker
Adjustment and Retraining Notification Act ("WARN"), 29 U.S.C. §
2101 et seq., the Massachusetts Fair Employment Practices Act, M.G.L. c.151B, §
1 et seq., the Massachusetts Civil Rights Act, M.G.L. c.12, §§ 11H and 11I, the
Massachusetts Equal Rights Act, M.G.L. c.93, § 102 and M.G.L. c.214, § 1C, the
Massachusetts Labor and Industries Act, M.G.L. c.149, § 1 et seq., and the
Massachusetts Privacy Act, M.G.L. c.214, § 1B, all as amended, and all claims
arising out of the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. and the
Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §
1001 et seq., all as amended; and all claims to any non-vested ownership
interest in the Company, contractual or otherwise, including, but not limited
to, claims to stock or stock options. Notwithstanding the foregoing, (a) nothing
in this Release prevents me from filing, cooperating with, or participating in
any proceeding before the EEOC or a state Fair Employment Practices Agency
(except that I acknowledge that I may not recover any monetary benefits in
connection with any such claim, charge or proceeding), (b) this Release does not
extend to any rights I have that arise after the date hereof under the Agreement
and (c) this Release does not extend to any rights I may have to indemnification
as an officer or director of the Company under the provisions of the Company's
By-laws or applicable law.
2.
I have been advised by the Company to consult with
counsel before signing this Release, and have been given the opportunity to
consult with my own counsel prior to signing this Release.
3.
I have been given up to twenty-one (21) days from
the receipt of this Release to consider whether to execute this
Release.
4.
I have been advised that even after I sign this
Release, I may revoke it within seven (7) days of the date of my signing by
delivering a signed revocation notice to the Company. Delivery by ordinary mail
will effectively revoke my assent to this Release if it is postmarked no later
than seven days after I sign this Release.
5.
This Release shall not become effective and in force
until eight days after I sign, provided I have not timely revoked my
acceptance.
6.
I acknowledge and reaffirm my obligations under the Dyax
Corp. Employee Confidentiality Agreement.
7.
No representation, promise or inducement has been
offered or made to induce me to enter into this Release, and I am competent to
execute this Release and accept full responsibility therefor.
|
Signature:
|
|
|
|
Name:
|
|
Exhibit
B
