[ANIKA THERAPEUTICS LETTERHEAD]
Exhibit 10.27
June 15, 2001
PERSONAL & CONFIDENTIAL
Xx. Xxxxxxx X. Xxxxxx
00 Xxxxxx Xxxxx
Xxxxx Xxxxxxx, XX 00000
Dear Xxxxxxx:
This letter notifies you in writing of the termination of your employment
with Xxxxx Therapeutics, Inc. (the "Company"). This letter also proposes an
agreement between you and the Company.
Your employment will terminate effective June 15, 2001. The Company shall
pay you your current base salary through June 15, 2001. In addition, the Company
will pay you for all accrued but unused vacation time through June 15, 2001,
which will be based on 122.54 hours of accrued but unused vacation time. The
Company also will provide you with the gross payment of $20,000.00, constituting
your 2001 "Spot/Stay Bonus" payment, which shall be sent to you by mail on the
date on which the Company regularly distributes the "Spot/Stay Bonus" to its
eligible employees. Finally, the Company will also provide you with the right to
continue group medical and dental insurance coverage under the terms of the law
known as "COBRA". The termination of other benefits will be addressed in
separate correspondence. For further details refer to Section 3a.
The payment and other terms set forth above will not be affected by
whether or not you agree to the terms set forth below.
The remainder of this letter proposes an agreement (the "Agreement")
between you and the Company. The purpose of this Agreement is to establish an
amicable arrangement for ending your employment relationship, to release the
Company and related persons or entities from any claims and to permit you to
receive fair and reasonable separation pay and related benefits.
If you agree to the terms of this Agreement, you acknowledge that you are
entering into this Agreement voluntarily. It is customary in employment
separation agreements that provide for severance pay for the departing employee
to release the employer from any possible claims, even if the employer believes,
as is the case here, that no such claims exist. You understand that you are
giving up your right to bring any and all possible legal claims against the
Company. Neither the Company nor you want your employment relationship to end
with a legal dispute. By entering into this Agreement, you understand that the
Company is not admitting in any way that it violated any legal obligation that
it owed to you. To the contrary, the Company's
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June 15, 2001
Page 2
willingness to enter into this Agreement demonstrates that it is continuing to
deal with you fairly and in good faith.
With those understandings, you and the Company agree as follows:
1. TERMINATION
As we have discussed, you understand that your employment with the
Company as its Vice President of Operations and from any and all other positions
that you may hold with the Company will terminate effective June 15, 2001 (the
"Termination Date"). You agree that up to and including June 15, 2001, you shall
work diligently and responsibly in performing the duties associated with your
current position as Vice President of Operations.
2. SEVERANCE PAY
If this Agreement becomes effective, the Company will not assert that
your employment was terminated for "cause" (as construed under Massachusetts
common law for employment contracts) and shall agree to provide severance pay
("Severance Pay") to you consisting of the continuation of your current base
salary rate of $166,800.00 per year for the six-month period beginning June 16,
2001 (the "Salary Continuation Period"), payable on the Company's regular
bi-weekly payroll dates. The Company will suspend the payment of Severance Pay
until such time as the Agreement becomes effective in accordance with Section
15. If the Agreement becomes effective, the Company will reinstate you to the
payroll and shall provide any suspended payroll payments to you no later than
the second payroll date after this Agreement becomes effective.
3. BENEFITS
a. MEDICAL AND DENTAL BENEFITS
By agreeing to this Agreement, you elect to continue your medical and
dental insurance coverage under COBRA. Your COBRA period will commence on June
15, 2001. Provided that you remain eligible for COBRA continuation coverage, the
Company shall continue to pay the premiums for your group medical and dental
insurance coverage on the same basis as if you continued to be employed during
the Salary Continuation period. Thereafter, you may continue coverage at your
own expense for the remainder of the COBRA period to the extent you remain
eligible.
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June 15, 2001
Page 3
b. STOCK AND STOCK OPTION PLANS
Nothing in this Agreement is intended to reduce or expand your rights
under the Company's Stock Option Plan dated March 3, 1993, as amended (the
"Plan"), or the agreements you entered into pursuant to the Plan.
c. OTHER BENEFITS
Your eligibility to participate in any other employee benefit plans and
programs sponsored by or made available to employees of the Company or its
affiliated or related entities ceases effective on or after your Termination
Date in accordance with applicable benefit plan terms and benefit practices.
Your rights to benefits, if any, are governed by the terms of those benefit
plans and programs.
4. PROMISSORY NOTE FORGIVENESS
You acknowledge that on or about September 29, 2000, you entered into a
Demand Promissory Note (the "Note") with the Company pursuant to which you
borrowed the principal sum of twenty-nine thousand dollars ($29,000.00),
together with interest, which is payable upon the Termination Date. The Company
hereby forgives any repayment obligations owed by you as of the Termination Date
under the terms of the Note. You acknowledge and agree that you are solely
responsible for any tax consequences resulting from the Company's forgiveness of
the Note.
5. TAX TREATMENT
The Company shall undertake to make deductions, withholdings and tax
reports with respect to payments and benefits under this Agreement to the extent
that it reasonably and in good faith believes that it is required to make such
deductions, withholdings and tax reports. Payments under this Agreement shall be
in amounts net of any such deductions or withholdings. Nothing in this Agreement
shall be construed to require the Company to make any payments to compensate you
for any adverse tax effect associated with any payments or benefits or for any
deduction or withholding from any payment or benefit.
6. RELEASE OF CLAIMS
In consideration for, among other terms, the payments and benefits
described in Sections 2, 3 and 4, to which you otherwise would not be entitled,
you voluntarily release and forever discharge the Company, its affiliated and
related entities, its and their respective predecessors, successors and assigns,
and each of their current and former officers, directors, shareholders,
employees, attorneys, accountants and agents in their official and personal
capacities (collectively referred to as the "Releasees") generally from all
claims, demands, debts, damages and liabilities of every name and nature, known
or unknown, that, as of the date that you sign
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June 15, 2001
Page 4
this Agreement, you now have, ever had, now claim to have or ever claimed to
have had against any or all of the Releasees ("Claims"). This release includes,
without limitation, all Claims relating to your employment by and termination of
employment with the Company; all Claims of wrongful discharge; all Claims of
breach of contract; all Claims of retaliation or discrimination under federal,
state or local law (including, without limitation, Claims of age discrimination
under the Age Discrimination in Employment Act); all Claims of defamation or
other torts; all Claims of violation of public policy; all Claims for wages,
bonuses, incentive compensation, vacation pay or any other compensation or
benefits; and all Claims for damages of any sort, including, without limitation,
compensatory damages, punitive damages and attorneys fees; provided, however,
that this release shall not affect your right to enforce this Agreement.
You agree that you shall not seek or accept reinstatement with any
Releasees. You also agree that you shall not seek damages of any nature,
equitable or legal remedies, attorney's fees, or costs from any of the Releasees
with respect to any Claim. As a material inducement to the Company to enter into
this Agreement, you hereby represent that you have not heretofore assigned to
any third party and you have not heretofore filed with any agency or court any
Claim released by this Agreement.
7. RETURN OF PROPERTY
You will return all Company property that is in your possession, custody
or control, including, without limitation, computer equipment, software,
cellular telephones, keys and access cards, credit cards, files and any other
documents (including computerized data and any copies made of any computerized
data or software) containing information concerning the Company, its business or
customer relationships (in the latter two cases, actual or prospective), no
later than the date when this Agreement becomes effective.
8. COOPERATION
You agree that, at any time in the future, you shall cooperate fully with
the Company as reasonably requested in all regulatory matters and in the defense
or prosecution of any legal claims or actions that already have been brought or
that may be brought in the future against or on behalf of the Company that
related to events or occurrences that transpired during your employment with the
Company. Your full cooperation in connection with such regulatory matters,
claims, actions or disputes shall include, without limitation, being available
to meet with representatives of the Company to prepare for regulatory processes
and counsel to prepare for discovery or trial and to testify truthfully as a
witness when reasonably requested by the Company. The Company will reimburse you
for any reasonable out-of-pocket expenses (which shall not be construed to
include your personal attorney's fees) that you incur in connection with such
cooperation, provided that you provide the Company reasonable documentation of
such out-of-pocket expenses. In addition, with the exception of any time spent
by you actually testifying as a witness, the Company shall reimburse you at a
rate of $100.00 per hour for each hour that you spend cooperating with the
Company in accordance with this Section.
Xx. Xxxxxxx X. Xxxxxx
June 15, 2001
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9. CONFIDENTIALITY OF AGREEMENT
You agree to keep the existence and terms of this Agreement in the
strictest confidence and to not reveal, unless legally compelled to do so, the
existence or terms of this Agreement to any persons except your attorney and
your financial advisors, provided that they also agree to keep such information
confidential. You shall be considered to have breached this Agreement if any of
those individuals fails to keep such information completely confidential.
Nothing in this Section 10 shall be construed to prevent you from disclosing
such matters to the extent required by a lawfully issued subpoena or duly issued
court order; PROVIDED that you provide the Company with advance written notice
as soon as is practicable and a reasonable opportunity to contest such subpoena
or court order. Nothing contained herein shall be deemed to limit your rights
under applicable law, including 29 U.S.C. ss. 626(f)(4).
10. VALIDITY OF NON-DISCLOSURE AND NON-COMPETITION AGREEMENT
You acknowledge and agree that you remain bound by the terms of the
Company's Non-Disclosure and Non-Competition Agreement that was executed by you
on February 10, 1998.
11. NON-DISPARAGEMENT
You will refrain from making any disparaging statements, taking any
actions, or conducting yourself in any way that adversely affects the reputation
or goodwill of the Company and/or its affiliated entities and the current and
former officers, directors, shareholders, employees and agents of any of them.
These non-disparagement obligations shall not in any way affect your obligation
to testify truthfully in any legal proceeding.
12. CONSIDERATION OF THE AGREEMENT
This Agreement is a legally binding document. Provided that you do not
revoke this Agreement in accordance with Section 15 below, your signature will
commit you to the terms of this Agreement. You acknowledge that you have been
advised to discuss all aspects of this Agreement with your attorney, that you
have carefully read and fully understand all of the provisions of this Agreement
and that you are voluntarily entering into this Agreement.
13. CONSENT TO JURISDICTION
You and the Company hereby consent to the jurisdiction of the Superior
Court of the Commonwealth of Massachusetts and the United States District Court
for the District of Massachusetts with respect to any claim of violation of this
Agreement. With respect to any such court action you (a) submit to the
jurisdiction of such courts, (b) consent to service of process, and (c) waive
any other requirement (whether imposed by statute, rule of court or otherwise)
with respect to personal jurisdiction or venue.
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June 15, 2001
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14. OTHER PROVISIONS
You acknowledge that you have been given the opportunity to consider this
Agreement for twenty-one (21) days before signing it. If you sign this Agreement
within less than twenty-one (21) days of the date of its delivery to you, you
acknowledge that such decision was entirely voluntary and that you had the
opportunity to consider this Agreement for the entire twenty-one (21) day
period. To accept this Agreement, you must provide the fully signed Agreement to
the undersigned by the end of the twenty-one (21) day period. For a period of
seven (7) days from the date you sign this Agreement, you have the right to
revoke this Agreement by written notice to the undersigned. If you do not revoke
this Agreement, it shall become effective on the eighth (8th) day after you sign
it. This Agreement shall not become effective or enforceable until the
expiration of the seven (7) day revocation period (the "Effective Date").
This Agreement constitutes the entire agreement regarding the termination
of your employment with the Company. This Agreement supersedes any previous
agreements or understandings between us, except for any agreements under the
Company's Stock Option Plan, as described in Section 3(b) and the Non-Disclosure
and Non-Competition Agreement described in Section 10. In signing this
Agreement, you are not relying upon any oral promises or representations made by
anyone at or on behalf of the Company.
This Agreement will be interpreted and enforced under the laws of the
Commonwealth of Massachusetts, without regard to conflict of law principles. In
the event of any dispute, this Agreement will be construed as a whole, will be
interpreted in accordance with its fair meaning, and will not be construed
strictly for or against either you or the Company. This Agreement is executed
under seal. Please indicate your agreement to the terms of this Agreement by
signing and returning to me a copy of this letter. You are advised to consult
with an attorney before signing this Agreement.
Sincerely,
ANIKA THERAPEUTICS, INC.
By: /s/ XXXXXXX X. XXXXXX
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Accepted and agreed to: Xxxxxxx X. Xxxxxx
Chief Executive Officer and
Chief Financial Officer
/s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
Date: June 20, 2001
