Transition Agreement and Release
Exhibit 10.1
Transition Agreement and Release
This Transition Agreement and Release (“Agreement”) is made by and between XXXXXXX XXXXXXXXX (“Executive”) and SELECTA BIOSCIENCES, INC. (the “Company”) (collectively referred to as the “Parties” or individually referred to as a “Party”) as of June 25, 2020 (the “Effective Date”). Capitalized terms used but not defined in this Agreement shall have the meanings set forth in the Employment Agreement (as defined below).
1. Separation; Services; Compensation.
(a) Executive’s employment with the Company and its subsidiaries will end on (i) August 18, 2020 or (ii) such earlier date as selected by the Company in accordance with the terms of this Agreement (the actual date of Executive’s separation of employment, the “Separation Date”), provided that if the Company selects a Separation Date that is earlier than August 18, 2020, the Company will pay Executive in Executive’s final paycheck the base salary Executive would have earned during the period commencing on the Separation Date selected by the Company and ending August 18, 2020. As of the Separation Date, Executive will cease to serve as an employee, director, officer or in any other position with the Company and its subsidiaries and will cease to exercise or convey any authority (actual, apparent or otherwise) on behalf of the Company and its subsidiaries. During the period commencing on the Effective Date and ending on the Separation Date (the “Transition Period”), Executive will continue performing substantially the same duties and responsibilities as Executive has historically provided to the Company or as are otherwise reasonably requested by the Company from time to time, including to assist in the orderly transition of Executive’s duties to a successor. Executive will perform Executive’s duties during the Transition Period in substantially the same manner and with substantially the same effort, time commitment and level of care as Executive has historically performed duties for the Company prior to the Effective Date.
(b) During the Transition Period, Executive will continue receiving Executive’s Annual Base Salary at the same rate that applies on the Effective Date and will remain eligible to participate in the Company’s employee benefit plans to the same extent as Executive is eligible as of the Effective Date, subject to the terms and conditions of such employee benefit plans as in effect from time to time.
(c) Executive’s employment with the Company will at all times remain terminable by either Executive or the Company at will and nothing in this Agreement confers upon Executive any right to continue to serve as an employee or other service provider of the Company or interferes with or restricts the rights of the Company to discharge or terminate the services of Executive at any time for any or no reason, with or without Cause, subject to the provisions of Section 2.
2. Severance Payments; Salary and Benefits.
(a) Except as otherwise provided in Section 2(b), if Executive remains continuously employed by the Company through August 18, 2020 or if the Company terminates Executive’s employment on or prior to August 18, 2020 for reasons other than Cause or material breach of this Agreement, then subject to Executive’s continued compliance with the RCA and Executive’s execution and delivery to the Company of the release of claims attached hereto as Addendum 1 (the “Bring-Down Release”) before the later of 30 days following the Separation Date and 45 days following the date this Agreement was first provided to Executive (and the Bring-Down Release becoming effective and irrevocable), Executive will be entitled to the severance payments and benefits provided in Sections 2(a)(i) – (ii).
(i) The Company will pay or provide to Executive the severance payments and benefits described in Section 4(b) of the Employment Agreement (the “Severance Payments”), payable at the times set forth in the Employment Agreement; provided that (A) “Payment Date” as used in the Employment Agreement shall mean the next regular payday following the effective date of the Bring-Down Release and (B) the period for COBRA-related severance benefits in Section 4(b)(iii) of the Employment Agreement will end upon the earliest of (x) December 31, 2021, (y) the date that Executive and/or Executive’s covered dependents become no longer eligible for COBRA or (z) the date Executive becomes eligible to receive medical, dental or vision coverage as applicable, from a subsequent employer; and
(ii) Each vested and exercisable option to purchase shares of the Company’s common stock held by Executive as of the Separation Date (each, a “Vested Option”) will remain outstanding and exercisable in accordance with its terms for a period of two years following the Separation Date, provided that (A) no Vested Option will remain outstanding past the original final expiration date of the Vested Option and (B) each Vested Option will in all events remain subject to earlier termination in connection with a corporate transaction or event as set forth in the documents governing the Vested Option.
(b) Notwithstanding anything in Section 2(a) to the contrary, Executive acknowledges and agrees that if Executive at any time accepts an offer of employment from Swedish Orphan Biovitrum AB (Publ), a Swedish corporation (“SOBI”), or any of its affiliates, Executive shall not be entitled to receive any further Severance Payments and the Company shall entitled to immediately cease paying or providing such Severance Payments.
(c) Upon Executive’s separation of employment for any reason, to the extent not already paid, and subject to the terms and conditions of the Employment Agreement, the Company shall pay or provide to Executive all other payments or benefits described in Section 3(c) of the Employment Agreement, subject to and in accordance with the terms thereof.
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(a) any and all claims relating to or arising from Executive’s employment or service relationship with the Company or any of its direct or indirect subsidiaries or affiliates and the termination of that relationship;
(b) any and all claims relating to, or arising from, Executive’s right to purchase, or actual purchase of any shares of stock or other equity interests of the Company or any of its affiliates, including, without limitation, any claims for fraud, misrepresentation, breach of fiduciary duty, breach of duty under applicable state corporate law, and securities fraud under any state or federal law;
(c) any and all claims for wrongful discharge of employment; termination in violation of public policy; discrimination; harassment; retaliation; breach of contract, both express and implied; breach of covenant of good faith and fair dealing, both express and implied; promissory estoppel; negligent or intentional infliction of emotional distress; fraud; negligent or intentional misrepresentation; negligent or intentional interference with contract or prospective economic advantage; unfair business practices; defamation; libel; slander; negligence; personal injury; assault; battery; invasion of privacy; false imprisonment; conversion; and disability benefits;
(d) any and all claims for violation of any federal, state, or municipal statute, including, but not limited to, Title VII of the Civil Rights Act of 1964; the Civil Rights Act of 1991; the Rehabilitation Act of 1973; the Americans with Disabilities Act of 1990; the Equal Pay Act; the Fair Credit Reporting Act; the Age Discrimination in Employment Act of 1967; the Older Workers Benefit Protection Act; the Employee Retirement Income Security Act of 1974; the Worker Adjustment and Retraining Notification Act; the Family and Medical Leave Act; and the Xxxxxxxx-Xxxxx Act of 2002;
(e) any and all claims for violation of the federal or any state constitution;
(f) any and all claims arising out of any other laws and regulations relating to employment or employment discrimination;
(g) any claim for any loss, cost, damage, or expense arising out of any dispute over the non-withholding or other tax treatment of any of the proceeds received by Executive as a result of this Agreement;
(h) any and all claims arising out of the wage and hour and wage payment laws and regulations of the state or states in which Executive has provided service to the Company or any of its affiliates (including without limitation the Massachusetts Payment of Wages Law); and
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(i) any and all claims for attorneys’ fees and costs.
Executive agrees that the release set forth in this section shall be and remain in effect in all respects as a complete general release as to the matters released. Notwithstanding anything to the contrary contained in this Agreement, this release does not release claims that cannot be released as a matter of law, including, but not limited to, Executive’s right to report possible violations of federal law or regulation to any governmental agency or entity in accordance with the provisions of and rules promulgated under Section 21F of the Securities Exchange Act of 1934 or Section 806 of the Xxxxxxxx-Xxxxx Act of 2002, or any other whistleblower protection provisions of state or federal law or regulation, Executive’s right to file a charge with or participate in a charge, investigation or proceeding by the Equal Employment Opportunity Commission, or any other local, state, or federal administrative body or government agency that is authorized to enforce or administer laws related to employment, against the Company (with the understanding that Executive’s release of claims herein bars Executive from recovering monetary or other individual relief from the Company or any Releasee in connection with any charge, investigation or proceeding, or any related complaint or lawsuit, filed by Executive or by anyone else on Executive’s behalf before the federal Equal Employment Opportunity Commission or a comparable state or local agency), claims for unemployment compensation or any state disability insurance benefits pursuant to the terms of applicable state law, claims to continued participation in certain of the Company’s group benefit plans pursuant to the terms and conditions of COBRA, claims to any benefit entitlements vested as of the Effective Date, pursuant to written terms of any employee benefit plan of the Company or its affiliates and Executive’s right under applicable law, claims for reimbursement of approved business expenses incurred prior to the Effective Date, rights to vested equity awards under any applicable award agreement issued pursuant to the Company’s 2016 Incentive Award Plan, rights or claims Executive may have as a shareholder of the Company, and any Retained Claims. This release further does not release claims for breach of Section 3(c), Section 4(b) or Section 4(c) of the Employment Agreement or claims arising after the Effective Date.
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[signature page follows]
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EXECUTIVE | ||||
Dated: | 6/25/2020 | /s/ Xxxxxxx Xxxxxxxxx | ||
XXXXXXX XXXXXXXXX | ||||
SELECTA BIOSCIENCES, INC. | ||||
Dated: | 6/25/2020 | By: | /s/ Xxxxxxx Xxxxx | |
Name: Xxxxxxx Xxxxx | ||||
Title: CEO |
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Addendum 1
Release of Claims
Reference is made to the Transition Agreement and Release, dated as of June__, 2020, to which this Release of Claims is attached (the “Agreement”). Capitalized terms used but not defined in this Release of Claims will have the meanings given to them in the Agreement.
Release of Claims. For and in consideration of the payment to me of the benefits described in Section 2(a) of the Agreement, I, on my own behalf and on behalf of the Employee Parties, hereby and forever release the Releasees from any matters of any kind, whether presently known or unknown, suspected or unsuspected, that I may possess against any of the Releasees arising from any omissions, acts, facts, or damages that have occurred up until and including the date I execute this Release of Claims, provided that this Release of Claims does not release claims that cannot be released as a matter of law, including, but not limited to, my right to report possible violations of federal law or regulation to any governmental agency or entity in accordance with the provisions of and rules promulgated under Section 21F of the Securities Exchange Act of 1934 or Section 806 of the Xxxxxxxx-Xxxxx Act of 2002, or any other whistleblower protection provisions of state or federal law or regulation, my right to file a charge with or participate in a charge, investigation or proceeding by the Equal Employment Opportunity Commission, or any other local, state, or federal administrative body or government agency that is authorized to enforce or administer laws related to employment, against the Company (with the understanding that my release of claims herein bars me from recovering monetary or other individual relief from the Company or any Releasee in connection with any charge, investigation or proceeding, or any related complaint or lawsuit, filed by me or by anyone else on my behalf before the federal Equal Employment Opportunity Commission or a comparable state or local agency), claims for unemployment compensation or any state disability insurance benefits pursuant to the terms of applicable state law, claims to continued participation in certain of the Company’s group benefit plans pursuant to the terms and conditions of COBRA, claims to any benefit entitlements vested as of the Separation Date, pursuant to written terms of any employee benefit plan of the Company or its affiliates and my rights under applicable law, claims for reimbursement of approved business expenses incurred prior to the Separation Date, rights to vested equity awards under any applicable award agreement issued pursuant to the Company’s 2016 Incentive Award Plan, rights or claims I may have as a shareholder of the Company, and any Retained Claims (collectively, the “Executive’s Retained Claims”).
Acknowledgement of Waiver of Claims Under ADEA. I have read this Release of Claims carefully and have been advised to consult with any attorney and any other advisors of my choice prior to executing this Release of Claims, and I fully understand that by signing below I am voluntarily giving up any right which I may have to xxx or bring any claims against the Releasees other than the Executive’s Retained Claims. I understand and acknowledge that I am waiving and releasing any rights that I may have under the Age Discrimination in Employment Act of 1967 (the “ADEA”), and that this waiver and release is knowing and voluntary. I understand and agree that this Release of Claims does not apply to any rights or claims that may arise under the ADEA after the date I sign this Release of Claims. I understand and acknowledge that the consideration given for this Release of Claims is in addition to anything of value to which I was already entitled. I further understand and acknowledge that I have been advised by this writing that: (a) I have 45 days within which to consider this Release of Claims and the Demographic Notice provided herewith and I expressly agree that such time period to review these documents shall not be extended upon any material or immaterial changes to this Release of Claims; (b) I have 7 business days following my execution of this Release of Claims to revoke this Release of Claims by delivering written notice to the Company’s Vice President, Human Resources; (c) this Release of Claims will not be effective until after the foregoing revocation period has expired; and (d) nothing in this Release of Claims prevents or precludes me from challenging or seeking a determination in good faith of the validity of this waiver under the ADEA, nor does it impose any condition precedent, penalties, or costs for doing so, unless specifically authorized by federal law. In the event that I sign this Release of Claims and return it to the Company in less than the 45 day period identified above, I hereby acknowledge that I have freely and voluntarily chosen to waive the time period allotted for considering this Release of Claims. I have not been forced or pressured in any manner to sign this Release of Claims, and I agree to all of its terms voluntarily.
Effective Date. I acknowledge and agree that I have 7 business days after I sign this Release of Claims to revoke it, and this Release of Claims will become effective on the 8th business day after I sign this Release of Claims, so long as it has been signed by the Parties and has not been revoked by either Party before such date.
Voluntary Execution of Release of Claims. I understand and agree that I executed this Release of Claims voluntarily, without any duress or undue influence on the part or behalf of the Company or any third party, with the full intent of releasing all of my claims against the Company and any of the other Releasees. I acknowledge that: (a) I have read this Release of Claims; (b) I have not relied upon any representations or statements made by the Company that are not specifically set forth in this Release of Claims; (c) I have been represented in the preparation, negotiation, and execution of this Release of Claims by legal counsel of my own choice or have elected not to retain legal counsel; (d) I understand the terms and consequences of this Release of Claims and of the releases it contains; and (e) I am fully aware of the legal and binding effect of this Release of Claims.
This Release of Claims is final and binding and may only be amended in a writing signed by me and a duly authorized officer of the Company. This Agreement shall be subject to the provisions of Sections 9(a) and 9(c) of the Employment Agreement.
For the avoidance of doubt, this Release of Claims does not replace or in any way limit the general release and waiver in Section 3 of the Agreement.
Executed: ___________ __, 2020 | |
XXXXXXX XXXXXXXXX |
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