Exhibit 10.3
AMENDED AND RESTATED
SEVERANCE AGREEMENT AND RELEASE
This AMENDED AND RESTATED AGREEMENT (the "Agreement") is made by and
between Curis, Inc. (the "Company") and Xx. Xxxxx Platika (the "Executive"). All
capitalized words and terms used in this Agreement and not defined herein shall
have the respective meanings ascribed to them in the Letter Agreement dated
January 28, 2002 between the Company and the Executive (the "Letter Agreement").
WHEREAS, the parties wish to resolve amicably the Executive's separation
from the Company and establish the terms of the Executive's severance
arrangement, and
WHEREAS, the parties wish to amend and restate the terms and conditions of
the severance agreement and release attached to the Letter Agreement as Exhibit
A,
NOW, THEREFORE, in consideration of the promises and conditions set forth
herein, the sufficiency of which is hereby acknowledged, the Company and the
Executive agree as follows:
1. Termination Date. The Executive's effective date of termination from the
Company is May 3, 2002 (the "Termination Date").
2. Consideration. In return for the execution by the Executive of this
Agreement and the acknowledgement by the Executive that the Financing
Milestone has not been achieved, the Company hereby agrees to provide the
Executive with the following severance benefits:
(a) Severance Pay. The Company shall provide the Executive with severance
pay at a bi-weekly rate of $14,134.62, less all applicable local,
state and federal taxes and withholdings (the "Salary Continuation"),
from the Termination Date up to and including Friday, August 9, 2002
(the "Severance Period"). The Salary Continuation shall be paid to the
Executive in accordance with the Company's regular payroll practices
(as they may be established or modified from time to time), but in no
event will the first installment of the Salary Continuation under this
section be paid earlier than the eighth (8th) day following the date
the Executive signs this Agreement.
(b) Continuation of Benefits. If the Executive is eligible for and elect
continuation of group health insurance coverage under the federal
COBRA law, the Company shall pay the costs of the Executive's group
health insurance premium payments during the Severance Period.
Thereafter, the Executive will be solely responsible for any and all
payments during the elected period of health insurance coverage under
COBRA. During the Severance Period, the Company will also continue the
Executive's participation in any other benefits that the he enjoyed
immediately prior to his separation of employment, provided that he
meets the eligibility requirements for such benefits under the terms
of any applicable benefit plan documents.
(c) Loan Forgiveness. The 1996 Promissory Note and the 2001 Promissory
Note will be forgiven and discharged in full, and the Pledge Agreement
and Mortgage shall be terminated.
(1) The forgiveness of the 1996 Promissory Note shall be
accompanied by the payment of a bonus in the amount of any federal and
state income tax payable by the Executive as a result of such
forgiveness plus any federal and state income tax payable by the
Executive with respect to such bonus.
(2) The forgiveness of the 2001 Promissory Note shall be accompanied
by the payment of a bonus in the amount of the minimum federal and
state income tax payable by the Executive as a result of such
forgiveness plus the minimum federal and state income tax payable by
the Executive with respect to such bonus. For the avoidance of doubt,
the parties hereby acknowledge that, in connection with the
forgiveness of the 2001 Promissory Note, the Company will report
$799,603.77 as additional compensation to the Executive, which amount
is derived as follows: (i) $500,000 of principal amount of the 2001
Promissory Note forgiven, (ii) $29,737.50 of interest accrued under
the 2001 Promissory Note forgiven and (iii) $269,866.27 of bonus in
the amount of the minimum federal and state income tax payable by the
Executive.
(d) Vested Shares. A total of 250,000 shares under the April 2001 Option
Grant shall be deemed to be vested as of the Termination Date, and the
remaining 250,000 shares under such grant shall cease to be subject to
such option.
(e) Extension of Exercise Date. The exercise period for all outstanding
options held by the Executive shall continue until 5:00 p.m., Eastern
Daylight Time, on Monday, May 5, 2003 (it being understood that if any
incentive stock option is exercised more than 90 days after the
termination date, it shall cease to be treated for tax purposes as an
incentive stock option, but rather shall constitute a so-called
non-statutory stock option).
3. Releases.
(a) Executive Release. The Executive hereby fully, forever,
irrevocably and unconditionally releases, remises and discharges the
Company, its officers, directors, stockholders, corporate affiliates,
subsidiaries, parent companies, agents, employees and successors (the
"Released Parties") from any and all claims, charges, complaints, demands,
actions, causes of action, suits, rights, debts, sums of money, costs,
accounts, covenants, contracts, agreements, promises, doings, omissions,
damages, executions, obligations, liabilities, and expenses (including
attorneys' fees and costs), of every kind and nature which he ever had or
now has against any or all of the Released Parties arising out of his
employment with or separation from the Company including, but not limited
to, all employment discrimination claims under Title VII of the Civil
Rights Act of 1964, 42 U.S.C.(S)2000e et seq., the Age Discrimination in
Employment Act, 29 U.S.C., (S)621 et seq., the Americans With
Disabilities Act of 1990, 42 U.S.C.,(S)12101 et seq., and the Family and
Medical Leave Act, 29 U.S.C.(S)2601 et seq., all as amended, and
similar state and local statutes including but not limited to the
Massachusetts Fair Employment Practices Act, M.G.L. c.151B,(S)1 et
seq., all as amended, and all claims arising out of the Fair Credit
Reporting Act, 15 U.S.C.(S)1681 et seq., the Employee Retirement
Income
Security Act of 1974 ("ERISA"), 29 U.S.C.(S)1001 et seq., the Massachusetts
Civil Rights Act, M.G.L. c.12(S)(S)11H and 11I, the Massachusetts Equal
Rights Act, M.G.L. c.93(S)102 and M.G.L. c.214,(S)1C, the Massachusetts
Labor and Industries Act, M.G.L. c. 149,(S)1 et seq., and the Massachusetts
Privacy Act, M.G.L. c.214,(S)1B, all as amended, and all common law claims
including, but not limited to, actions in tort, defamation and breach of
contract, any 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, and any claim or damage arising out of the
Executive's employment with or separation from the Company (including a
claim for retaliation) under any common law theory or any federal, state or
local statute or ordinance not expressly referenced above; provided,
however, that nothing in this Agreement prevents the Executive from (i)
filing, cooperating with, or participating in any discrimination proceeding
before the EEOC or a state Fair Employment Practices Agency (except that
the Executive acknowledges that he may not be able to recover any monetary
benefits in connection with any such claim, charge or proceeding) or (ii)
bringing any legal action for the purposes of enforcing any obligations of
the Company to the Executive under this Agreement or the Letter Agreement.
The Executive does not release the Company from any obligation to indemnify
the Executive to the fullest extent provided in the Company's By-Laws and
Certificate of Incorporation.
(b) Company Release. The Company hereby fully, forever, irrevocably
and unconditionally releases, remises and discharges the Executive from any
and all claims, charges, complaints, demands, actions, causes of action,
suits, rights, debts, sums of money, costs, accounts, covenants, contracts,
agreements, promises, doings, omissions, damages, executions, obligations,
liabilities, and expenses (including attorneys' fees and costs), of every
kind and nature arising out of his employment with and separation from the
Company; provided, however, that nothing in this section 3(b) shall release
the Executive from any obligation expressly set forth in this Agreement or
any claims arising out of or related to the Executive's commission of acts
involving fraud, criminal activity or misconduct committed during his
employment with the Company.
4. Non-Disclosure and Non-Competition. The Executive acknowledges his
obligation to keep confidential all non-public information concerning the
Company which he acquired during the course of his employment with the
Company. The Executive further acknowledges and reaffirms his obligations
under the Invention and Non-Disclosure Agreement and the Non-Compete and
Non-Solicitation Agreement he executed at the commencement of his
employment with the Company, the terms of which remain in full force and
effect.
5. Return of Company Property. The Executive agrees to return, within seven
(7) days of his execution of this Agreement, all Company property in his
possession or control, including, but not limited to, keys, files, records
(and copies thereof), computer hardware and software, cellular phones and
pagers. The Executive further agrees to leave intact all electronic Company
documents, including those which he developed or help develop during his
employment.
6. Non-Disparagement. The Executive understands and agrees that as a condition
for payment to him of the consideration described herein, he will not make
any false, disparaging or derogatory statements to any media outlet,
industry group, financial institution or current or former employee,
consultant, client or customer of the Company regarding the Company or any
of its directors, officers, employees, agents or representatives or about
the Company's business affairs and financial condition. The Company agrees
to direct its officers directors, agents and employees not to make any
false, disparaging, derogatory or defamatory statements in public or in
private regarding the Executive or the Executive's employment with the
Company.
7. Confidentiality. To the extent permitted by law, the Executive understands
and agrees that as a condition for payment to him of the consideration
herein described, the terms and contents of this Agreement, and the
contents of the negotiations and discussions resulting in this Agreement,
shall be maintained as confidential by the Executive, his agents and
representatives and none of the above shall be disclosed except to the
extent required by federal or state law or as otherwise agreed to in
writing by the Company.
8. Nature of Agreement. The Executive understands and agrees that this
Agreement is a severance agreement and release and does not constitute an
admission of liability or wrongdoing on the part of the Company.
9. Amendment. This Agreement shall be binding upon the parties and may not be
abandoned, supplemented, changed or modified in any manner, orally or
otherwise, except by an instrument in writing of concurrent or subsequent
date signed by a duly authorized representative of the parties. This
Agreement is binding upon and shall inure to the benefit of the parties and
their respective agents, assigns, heirs, executors, successors and
administrators.
10. Waiver of Rights. No delay or omission by the Company or the Executive in
exercising any rights under this Agreement shall operate as a waiver of
that or any other right. A waiver or consent given by the Company or the
Executive on any one occasion shall be effective only in that instance and
shall not be construed as a bar or waiver of any right on any other
occasion.
11. Validity. Should any provision of this Agreement be declared or be
determined by any court of competent jurisdiction to be illegal or invalid,
the validity of the remaining parts, terms, or provisions shall not be
affected thereby and said illegal or invalid part, term or provision shall
be deemed not to be a part of this Agreement.
12. Applicable Law. This Agreement shall be governed by the laws of the
Commonwealth of Massachusetts, without regard to conflict of laws
provisions. The parties hereby irrevocably submit to the jurisdiction of
the courts of the Commonwealth of Massachusetts, or if appropriate, a
federal court located in Massachusetts (which courts, for purposes of this
Agreement, are the only courts of competent jurisdiction), over any suit,
action or other proceeding arising out of, under, or in connection with
this Agreement or its subject matter.
13. Acknowledgments. The Executive acknowledges that he has been given
twenty-one (21) days to consider this Agreement and that he has been
advised by his counsel, Xxxxx Xxxxx of Xxxxx and Xxxxxxx, LLP, Boston,
throughout the negotiation of the Letter Agreement and this Agreement.
Further, the Executive acknowledges that he may revoke this Agreement for a
period of seven (7) days after the execution of this Agreement, and the
Agreement shall not be effective or enforceable until the expiration of
this seven (7) day revocation period.
14. Voluntary Assent. The Executive affirms that no other promises or
agreements of any kind (other than the Letter Agreement) have been made to
or with him by any person or entity whatsoever to cause him to sign this
Agreement, and that he fully understands the meaning and intent of this
Agreement. The Executive states and represents that he has had an
opportunity to fully discuss and review the terms of this Agreement with an
attorney. The Executive further states and represents that he has carefully
read this Agreement, understands the contents herein, freely and
voluntarily assents to all of the terms and conditions hereof, and signs
his name of his own free act.
15. Entire Agreement. This Agreement and the Letter Agreement contain and
constitute the entire understanding and agreement between the parties with
respect to severance benefits and supersede all previous oral and written
negotiations, agreements, commitments, and writings in connection
therewith. Nothing in this section shall, however, modify, cancel or
supersede the Executive's obligations as set forth in section 4 above.
16. Counterparts. This Agreement may be executed in two (2) signature
counterparts, each of which shall constitute an original, but all of which
taken together shall constitute but one and the same instrument.
IN WITNESS WHEREOF, all parties have set their hand and seal to this Agreement.
CURIS, INC.
By: /s/ Xxxxxx X. Xxxxxxx Date: 9/19/02
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Xxxxxx X. Xxxxxxx
President and CEO
/s/ Doros Platika Date: 9/19/02
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Xx. Xxxxx Platika
