EXHIBIT 10.24
July 20, 2006
Xx. Xxxxxx Xxxxxxx
c/o Metabolix, Inc.
00 Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Re: EMPLOYMENT AGREEMENT
Dear Xxxxxx:
This letter is to confirm our understanding with respect to your employment
by Metabolix, Inc. (the "Company"). The terms and conditions agreed to in this
letter are hereinafter referred to as the "Agreement". In consideration of the
mutual promises and covenants contained in this Agreement, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
mutually acknowledged, we have agreed as follows:
1. EMPLOYMENT.
(a) GENERAL. The Company will employ you, and you will be employed by
the Company, as the Chief Scientific Officer and Vice President, Research
of the Company, reporting to the Chief Executive Officer, and you shall
have the responsibilities, duty and authority commensurate with that
position. You will also perform such other and/or different services for
the Company as may be assigned to you from time to time. You agree that if
your employment hereunder ends for any reason, you will tender your
resignation to the Company.
(b) DEVOTION TO DUTIES. While you are employed hereunder, you will use
your best efforts, skills and abilities to perform faithfully all duties
assigned to you pursuant to this Agreement and will devote your full
business time and energies to the business and affairs of the Company.
While you are employed hereunder, you will not undertake any other
employment from any person or entity without the prior written consent of
the Company.
2. EMPLOYMENT AT WILL. Your employment hereunder will be on an "at-will"
basis and may be terminated by the Company or by you at any time for any reason
or for no reason.
3. COMPENSATION.
(a) BASE SALARY. While you are employed hereunder, the Company will
pay you a base salary at the annual rate of $16,666.66 per month
(annualized at $200,000.00) (the "Base Salary"). This Base Salary is
effective July 1, 2006, and may be subject to upward
(but not downward) adjustment from time to time in the discretion of the
Company. The Company will deduct from each monthly salary payment all
amounts required to be deducted or withheld under applicable law or under
any employee benefit plan in which you participate.
(b) BONUSES.
(i) As soon as practicable, but no later than July 31, 2006 after
the execution of this Agreement, the Company shall pay you a bonus of
$75,000, less all amounts required to be deducted or withheld under
applicable law or under any employee benefit plan in which you participate.
(ii) Subject to your continued employment with the Company on the
date of completion of an initial public offering (an "IPO") of the
Company's common stock, as soon as practicable following the IPO, but
in no event later than 2 months following the IPO, the Company shall
pay you an additional bonus of $75,000, less all amounts required to
be deducted or withheld under applicable law or under any employee
benefit plan in which you participate.
(iii) In addition to the foregoing, the Company on or before
December 31, 2006, will establish a formalized bonus scheme and pay you an
annual bonus in an amount to be determined by the Company's Compensation
Committee. The amount will be based on several criteria, including the
financial condition of the Company and its overall performance for the
year, but will be strongly influenced by your contributions toward the
achievement of established corporate goals and objectives, as well as other
contributions that add recognizable value to the Company. The present
target for executive bonuses is 50% of Base Salary (the "Target Bonus").
This Target Bonus will be subject to revision from time to time by the
Compensation Committee. In order to receive an annual bonus, you must be
employed at the time of a timely payment, which will be paid on or before
March 15 of the year following the year in which it is earned.
(c) EQUITY COMPENSATION. The Company, in the Board's sole discretion,
may from time to time grant to you stock options, restricted stock or other
forms of equity compensation pursuant to the Metabolix, Inc. 2005 Stock
Plan or any other authorized stock plan in effect at the time.
(d) VACATION. You will be entitled to paid vacation and paid holidays,
accrued and used in accordance with the Company's policies as currently in
effect. For the purpose of clarity the current policy for an individual
with ten (10) years of service is five (5) weeks. All vacation days will be
taken at times mutually agreed by you and the Company and will be subject
to the business needs of the Company.
(e) FRINGE BENEFITS. You will be entitled to participate in employee
benefit plans which the Company provides or may establish for the benefit
of its senior executives
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generally (for example, group life, disability, medical, dental and other
insurance, retirement, pension, profit-sharing and similar plans)
(collectively, the "Fringe Benefits"). Your eligibility to participate in
the Fringe Benefits and receive benefits thereunder will be subject to the
plan documents governing such Fringe Benefits. Nothing contained herein
will require the Company to establish or maintain any Fringe Benefits.
(f) LEGAL FEES. The Company shall reimburse you for all legal fees and
expenses incurred by you in connection with the negotiation of this
Agreement; PROVIDED that the Company's reimbursement obligation with
respect to such legal fees and expenses shall not exceed $3,000.
4. TERMINATION.
(a) GENERAL. As an at-will employee, your employment may be terminated
at any time for any reason or for no reason. Upon termination, unless
otherwise specifically provided herein, you shall be eligible only to
receive (i) the portion of your Base Salary as has accrued prior to such
termination and has not yet been paid, (ii) an amount equal to the value of
your accrued unused vacation days, and (iii) reimbursement for expenses
properly incurred by you on behalf of the Company prior to such termination
if such expenses are properly documented in accordance with Company policy
and practice and submitted for reimbursement within thirty (30) days of the
termination date (collectively, the "Accrued Obligations"). Such amounts
will be paid promptly after termination in accordance with applicable law.
(b) TERMINATION WITHOUT CAUSE OR WITH GOOD REASON. Except as provided
in Section 4(c) hereof, in the event that your employment is terminated by
the Company without Cause or by you with Good Reason (each, as defined
below), in addition to the Accrued Obligations, and contingent on your
provision of a timely and complete release of claims against the Company,
you shall be entitled to receive: (i) a lump-sum cash payment equal to
twenty-four (24) months of your Base Salary, and (ii) a pro rata Target
Bonus for the year in which such termination occurs, each of the clause (i)
and (ii) amounts to be payable (A) on the first business day following the
six (6) month anniversary of the effective date of termination, to the
extent required by Section 409A of the Internal Revenue Code of 1986, as
amended (the "Code"), or (B) if Section 409A of the Code is not then
applicable, promptly following the date of termination. In addition to the
foregoing, you shall be entitled to receive payment of COBRA premiums to
maintain medical and dental benefits, if any, in effect at the time of
termination for the period of twenty-four (24) months following the
termination.
(c) TERMINATION WITHOUT CAUSE OR WITH GOOD REASON BEFORE OR AFTER A
CHANGE OF CONTROL.
(i) In the event that your employment is terminated by the
Company without Cause or by you for Good Reason (each, as defined below)
within the twenty-four (24) month period immediately following or the two
month period immediately prior to a
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Change of Control (as defined below), in addition to the Accrued
Obligations, and contingent on your provision of a timely release of claims
against the Company, you shall be entitled to receive:
(A) a lump-sum cash payment equal to two times the sum of
(I) your then-current Base Salary plus (II) 50% of your then-current Target
Bonus, such amount to be payable (x) on the first business day following
the six (6) month anniversary of the effective date of termination, to the
extent required by Section 409A of the Code, or (y) if Section 409A of the
Code is not then applicable, promptly following the date of termination;
and
(B) continued payment of COBRA premiums to maintain medical
and dental benefits, if any, in effect at the time of termination for the
period of twenty-four (24) months following the termination; and
(C) full vesting of all options granted to you under the
Metabolix Inc. 1995 Stock Plan, the Metabolix Inc. 2005 Stock Plan or any
authorized successor stock plan provided that the conditions to vesting
other than the passage of time have been satisfied.
(ii) You agree that the payments and benefits hereunder, and
under all other contracts, arrangements or programs that apply to you (the
"Company Payments"), shall be reduced to an amount that is one dollar less
than the amount that would trigger an excise tax under Section 4999 of the
Code, as determined in good faith by the Company's nationally recognized
independent auditors, PROVIDED, HOWEVER, that the reduction shall occur
only if the reduced Company Payments received by you (after taking into
account further reductions for applicable federal, state and local income,
social security and other taxes) would be greater than the unreduced
Company Payments to be received by you minus (i) the excise tax payable
with respect to such Company Payments under Section 4999 of the Code; and
(ii) all applicable federal, state and local income, social security and
other taxes on such Company Payments. You and the Company agree to
cooperate in good faith with each other in connection with any
administrative or judicial proceedings concerning the existence or amount
of golden parachute penalties with respect to payments or benefits that you
receive.
(d) "CAUSE". As used herein, "Cause" shall be defined as (i) your
conviction for, or plea of nolo contendere, to a felony or a crime
involving moral turpitude, (ii) your commission of a material act of
personal dishonesty or a breach of fiduciary duty involving personal profit
in connection with your employment by the Company, (iii) your commission of
an act which the Board of Directors shall reasonably have found to have
involved willful misconduct or gross negligence on your part in the conduct
of your duties under this Agreement, (iv) your habitual absenteeism, (v)
your material breach of any material provision of this Agreement continuing
for thirty days after your receipt of written notice thereof from the
Company, or (vi) the willful and continued failure by you
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to perform substantially your duties with the Company (other than any such
failure resulting from your incapacity due to physical or mental illness).
(e) "CHANGE OF CONTROL". As used herein, a "Change of Control" shall
occur or be deemed to have occurred only upon any one or more of the
following events:
(i) a merger or consolidation of the Company other than a merger
or consolidation which 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 the
surviving entity or the parent of such corporation) at least fifty percent
(50%) of the total voting power represented by the voting securities of the
Company or such surviving entity or parent of such corporation outstanding
immediately after such merger or consolidation;
(ii) the sale or disposition by the Company of all or
substantially all of the Company' s assets; or
(iii) any one person, entity or group, who is not a shareholder
at time of execution of this Agreement, acquires ownership of capital stock
of the Company that, together with the capital stock of the Company already
held by such person, entity or group, constitutes more than 50% of the
total fair market value or total voting power of the capital stock of the
Company; provided, however, if any one person, entity or group is
considered to own more than 50% of the total fair market value or total
voting power of the capital stock of the Company, the acquisition of
additional capital stock by the same person, entity or group shall not be
deemed to be a Change of Control, and further provided that the foregoing
shall not be deemed a Change of Control if the average stock price paid for
each share of stock held by the person, entity or group is less than
$8.00/share.
(f) "Good Reason" shall be defined as, in the absence of a cure by the
Company within 30 days after written notice by you to the Board, a (i) a
change in title of Chief Scientific Officer and Vice President, Research,
(ii) a material diminution of responsibilities, duties or powers, (iii) a
reduction in Base Salary, Target Bonus, vacation or other benefits, except
that benefits need only be substantially equivalent, or (iv) a requirement
that you relocate your principal place of employment to (or that you travel
more than 50 days in any calendar year to the Company's principal place of
business in) a location more than 50 miles from its current location in
Cambridge, Massachusetts, PROVIDED THAT you must provide the Company with
at least thirty (30) days advance written notice of your intent to
terminate your employment hereunder and an opportunity to cure.
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5. NONCOMPETITION, NONDISCLOSURE AND INVENTIONS OBLIGATIONS. Your Employee
Noncompetition, Nondisclosure and Inventions Agreement dated 5 April 1994 as
amended on July 20, 2006 shall continue in full force and effect in accordance
with its terms.
6. DISCLOSURE TO FUTURE EMPLOYERS. You will provide, and the Company, in
its discretion, may similarly provide, a copy of the covenants contained in The
Employee Noncompetition, Nondisclosure and Inventions Agreement to any business
or enterprise which you may, directly or indirectly, own, manage, operate,
finance, join, control or in which you may participate in the ownership,
management, operation, financing, or control, or with which you may be connected
as an officer, director, employee, partner, principal, agent, representative,
consultant or otherwise.
7. REPRESENTATIONS. You hereby represent and warrant to the Company that
you understand this Agreement, that you enter into this Agreement voluntarily
and that your employment under this Agreement will not conflict with any legal
duty owed by you to any other party.
8. GENERAL.
(a) NOTICES. All notices, requests, consents and other communications
hereunder which are required to be provided, or which the sender elects to
provide, in writing, will be addressed to the receiving party's address set
forth above or to such other address as a party may designate by notice
hereunder, and will be either (i) delivered by hand, (ii) sent by overnight
courier, or (iii) sent by registered or certified mail, return receipt
requested, postage prepaid. All notices, requests, consents and other
communications hereunder will be deemed to have been given either (i) if by
hand, at the time of the delivery thereof to the receiving party at the
address of such party set forth above, (ii) if sent by overnight courier,
on the next business day following the day such notice is delivered to the
courier service, or (iii) if sent by registered or certified mail, on the
fifth business day following the day such mailing is made.
(b) ENTIRE AGREEMENT. This Agreement, together with any Stock Option
Agreements executed by you and the Company (either prior to or in
conjunction with this Agreement), the Employee Noncompetition,
Nondisclosure and Inventions Agreement and the other agreements
specifically referred to herein, embodies the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior oral or written agreements and
understandings relating to the subject matter hereof. No statement,
representation, warranty, covenant or agreement of any kind not expressly
set forth in this Agreement will affect, or be used to interpret, change or
restrict, the express terms and provisions of this Agreement.
(c) MODIFICATIONS AND AMENDMENTS. The terms and provisions of this
Agreement may be modified or amended only by written agreement executed by
the parties hereto.
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(d) WAIVERS AND CONSENTS. The terms and provisions of this Agreement
may be waived, or consent for the departure therefrom granted, only by
written document executed by the party entitled to the benefits of such
terms or provisions. No such waiver or consent will be deemed to be or will
constitute a waiver or consent with respect to any other terms or
provisions of this Agreement, whether or not similar. Each such waiver or
consent will be effective only in the specific instance and for the purpose
for which it was given, and will not constitute a continuing waiver or
consent.
(e) ASSIGNMENT. The Company may assign its rights and obligations
hereunder to any person or entity that succeeds to all or substantially all
of the Company's business or that aspect of the Company's business in which
you are principally involved or to any Company Affiliate. You may not
assign your rights and obligations under this Agreement without the prior
written consent of the Company and any such attempted assignment by you
without the prior written consent of the Company will be void.
(f) GOVERNING LAW. This Agreement and the rights and obligations of
the parties hereunder will be construed in accordance with and governed by
the law of placeStateMassachusetts, without giving effect to the conflict
of law principles thereof.
(g) JURISDICTION, VENUE AND SERVICE OF PROCESS. Any legal action or
proceeding with respect to this Agreement will be brought in the courts of
placeStateMassachusetts or of the placecountry-regionUnited States of
America for the District of Massachusetts. By execution and delivery of
this Agreement, each of the parties hereto accepts for itself and in
respect of its property, generally and unconditionally, the exclusive
jurisdiction of the aforesaid courts.
(h) SEVERABILITY. The parties intend this Agreement to be enforced as
written. However, if any portion or provision of this Agreement is to any
extent declared illegal or unenforceable by a duly authorized court having
jurisdiction, then the remainder of this Agreement, or the application of
such portion or provision in circumstances other than those as to which it
is so declared illegal or unenforceable, will not be affected thereby, and
each portion and provision of this Agreement will be valid and enforceable
to the fullest extent permitted by law.
(i) HEADINGS AND CAPTIONS. The headings and captions of the various
subdivisions of this Agreement are for convenience of reference only and
will in no way modify or affect the meaning or construction of any of the
terms or provisions hereof.
(j) ACKNOWLEDGMENTS. You hereby acknowledge and recognize that the
enforcement of any of the provisions in this Agreement and the
Noncompetition, Nondisclosure and Inventions Agreement may potentially
interfere with your ability to pursue a proper livelihood. You represent
that you are knowledgeable about the business of the Company. You recognize
and agree that the enforcement of the Noncompetition, Nondisclosure and
Inventions Agreement is necessary to ensure the preservation, protection
and continuity of the business, trade secrets and goodwill of the Company.
You agree that, due to the proprietary nature of the Company's business,
the restrictions set forth in the
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Noncompetition, Nondisclosure and Inventions Agreement are reasonable as to
time and scope.
(k) TAXES. All payments required to be made by the Company to you
under this Agreement shall be subject to the withholding of such amounts
for taxes and other payroll deductions as the Company may reasonably
determine it should withhold pursuant to any applicable law or regulation.
To the extent applicable, it is intended that this Agreement comply with
the provisions of Section 409A of the Code, and this Agreement shall be
construed and applied in a manner consistent with this intent. In the event
that any severance payments or benefits hereunder are determined by the
Company to be in the nature of nonqualified deferred compensation payments,
you and the Company hereby agree to take such actions as may be mutually
agreed to ensure that such payments or benefits comply with the applicable
provisions of Section 409A of the Code and the official guidance issued
thereunder. Notwithstanding the foregoing, the Company does not guarantee
the tax treatment or tax consequences associated with any payment or
benefit arising under this Agreement.
(l) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, and by different parties hereto on separate counterparts,
each of which will be deemed an original, but all of which together will
constitute one and the same instrument.
If the foregoing accurately sets forth our agreement, please so indicate by
signing and returning to us the enclosed copy of this Agreement.
Very truly yours,
Metabolix, Inc.
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: President & CEO
ACCEPTED AND APPROVED:
XXXXXX XXXXXXX 7/20/06
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Print Name: Xxxxxx Xxxxxxx Date
