EXHIBIT 10.30
Variagenics, Inc.
00 Xxxxxxxxx Xx.
Xxxxxxxxx, XX 00000
EXECUTIVE RETENTION AGREEMENT
CONFIDENTIAL
February 13, 0000
Xxxxxx Xxxxxxx Xxxxxx
00 Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
Dear Xxxxxx:
This letter agreement (the "Amended and Restated Retention
Agreement") shall confirm our agreement with respect to additional
compensation you will receive in connection with your continued service as
the President and Chief Executive Officer of Variagenics, Inc. (the
"Company") during the [________________________] period which commenced on
October 11, 2001 and terminates on [________________] (the "Retention
Period") and amend and restate the Retention Agreement that was executed on
or about November 15, 2001 (the "November 15 Retention Agreement"). To the
extent the Amended and Restated Retention Agreement augments or differs from
the terms of your Employment Agreement dated March 18, 1999 (the "Employment
Agreement"), any of your Stock Option Agreements dated September 22, 1999,
February 11, 2000 or January 3, 2001 (collectively, the "Option Agreements")
or the November 15 Retention Agreement, those agreements are hereby amended
to such extent. The parties hereto acknowledge and agree that the November 15
Retention Agreement shall become null and void upon the execution of this
Amended and Restated Retention Agreement.
In addition to the existing terms and conditions of your Employment
Agreement and Option Agreements, this Amended and Restated Retention
Agreement confirms that if you resign your employment at any time during the
Retention Period, so long as you provide a minimum of two (2) weeks advance
notice in writing, such resignation shall be treated as a resignation for
Good Reason, pursuant to the Employment Agreement, and any cash payments due
pursuant to Section 4(b)(i) of the Employment Agreement shall be paid in a
lump sum upon the termination of your employment with the Company. In
addition, because of the crucial role you have agreed to take on with respect
to certain critical objectives during the Retention Period, you shall receive
the compensation and benefits noted below, subject to the following
conditions:
CASH BONUSES
Apart from continuing to be paid at the rate of $13,541.67 per
semi-monthly pay period as long as you remain employed by the Company, you
will be eligible to receive a total cash
--------------------
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 24b-2 of the Securities Exchange Act of
1934.
bonus of up $162,500 (the "Bonus Potential") if you attain the
following objectives during the Retention Period:
(a) STRATEGIC RELATIONSHIPS--If a letter of intent is executed with
respect to a collaborative transaction with a pharmaceutical or biotech
company or a collaborative relationship with a research institution on
a high-profile clinical study [_______________________________________
________________________________________________________], you shall
receive a payment equal to one-sixth of the total Bonus Potential
within thirty (30) days following execution of such letter of intent.
If a second such letter of intent is executed, you shall receive an
additional payment equal to one-sixth of the total Bonus Potential
within thirty (30) days following execution of such letter of intent;
(b) [________________________]--[____________________________________
_____________________], you shall receive a payment equal to one
third of the total Bonus Potential within thirty (30) days following
execution of such letter of intent; and
(c) BUDGET--If you present to the Board of Directors a reasonably
detailed written budget that demonstrably will [____________________
_______________________] and confer with the Board of Directors
regarding the same in the context of a Board Meeting, you shall
receive a payment equal to one third of the total Bonus Potential
within thirty (30) days following such Board Meeting.
Any cash payments shall be subject to customary federal, state and
local withholdings, and any Bonus Potential amounts actually earned during
the Retention Period that remain unpaid upon the expiration of the Retention
Period shall remain due and payable in accordance with the terms of preceding
paragraphs (a) - (c) in this Cash Bonuses section.
STOCK OPTIONS
(a) EXISTING STOCK OPTIONS--Any stock options that were granted
pursuant to the Option Agreements that have not vested as of the date
of such resignation or termination shall vest and become exercisable
upon the earlier of (i) [___________] or (ii) the date on which you
resign your employment or the Company terminates your employment. To
the extent permitted by law, such options shall remain exercisable for
a period of one hundred eighty (180) days commencing on your final
date of employment with the Company (so long as such exercise period
does not exceed the expiration date of the particular options, as
stated in the stock option agreement subject to which particular
options were granted).
(b) RETENTION STOCK OPTIONS--The Board of Directors, or their
duly-authorized designees, shall grant you 175,500 stock options with
an exercise price of $2.26 per share, subject to the terms of the
Amended 1997 Employee, Director and Consultant Stock Option Plan and a
stock option agreement on the form most recently approved by the Board
of Directors, as qualified by this paragraph (the "Retention Options").
If you are still employed by the Company on March 31, 2002 or your
employment has been
--------------------
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 24b-2 of the Securities Exchange Act of
1934.
2
terminated at the directive of the Board of Directors prior thereto,
87,750 of such stock options shall vest and become exercisable as of
that date. The remaining 87,500 shall vest and become exercisable as
follows, assuming you remain employed by the Company on each vesting
date: (i) 21,938 on April 30, 2002; (ii) 21,938 on May 31, 2002;
(iii) 21,937 on June 30, 2002; and (iv) 21,937 on July 10, 2002. To
the extent permitted by law, any such stock options shall remain
exercisable for a period of one hundred eighty (180) days commencing
on your final date of employment with the Company (so long as such
exercise period does not exceed the expiration date of such options,
as stated in the stock option agreement subject to which such options
may be granted).
(c) PERFORMANCE STOCK OPTIONS--If, at a time when you are still
employed by the Company during the Retention Period, the Company (i)
[_____________________]or (ii) [_______________________________] or
[________________________________], the Board of Directors, or their
duly-authorized designees, shall grant you 115,500 stock options with
an exercise price of $2.26 per share, subject to the terms of the
Amended 1997 Employee, Director and Consultant Stock Option Plan and a
stock option agreement on the form most recently approved by the Board
of Directors, as qualified by this paragraph. All such performance
stock options shall vest and become exercisable upon the grant date.
To the extent permitted by law, any such stock options shall remain
exercisable for a period of one hundred eighty (180) days commencing
on your final date of employment with the Company (so long as such
exercise period does not exceed the expiration date of such options,
as stated in the stock option agreement subject to which such options
may be granted).
For the purpose of determining the period for which the any of
the aforementioned options may be exercised, the expiration date of
such options shall be deemed to be the expiration date set forth in the
relevant agreement governing such options but disregarding the
provisions for early termination of the options for any reason other
than termination for "cause" as defined in such option agreement. In
addition, the one hundred eighty (180) day period commencing on your
final date of employment with the Company shall supersede any provision
in the relevant agreement governing such options setting forth an
exercise period for the options of less than one hundred eighty (180)
days after your final date of employment with the Company.
Pursuant to the terms of the Amended 1997 Employee, Director
and Consultant Stock Option Plan, you will be permitted to exercise the
options noted above by using a cashless exercise program.
All shares of the Company's stock owned by you shall be subject to any
restrictions imposed by law, and, [___________________________________________
______________________________________________________________]
--------------------
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 24b-2 of the Securities Exchange Act of
1934.
3
NON-COMPETITION
You hereby agree that the companies set forth on SCHEDULE A to this
Amended and Restated Retention Agreement, together with their respective
affiliates, successors and related entities, shall be the only entities to be
considered a Competing Business for purposes of Section 5 of the Employment
Agreement.
EXPENSES
The Company shall reimburse you for up to $5,000 in legal fees
relating to the negotiation of the November 15 Retention Agreement, within
thirty (30) days following presentation of appropriate invoices to Xxxxxx
Xxxxxxxxx.
RELEASE AND WAIVER OF CLAIMS
Your receipt of any cash, stock options or expense reimbursements
pursuant to the terms of the Amended and Restated Retention Agreement is
conditioned on your execution of a full and complete release and waiver of
claims with respect to the Company, its directors, officers and shareholders
(and its and their successors and assigns) in a form satisfactory to (and
provided by) the Company upon the earlier of (i) [_______________] or (ii)
the date of the termination of your employment with the Company for any
reason. A current example of a full and complete release is attached hereto
as Exhibit A for your review. Failure to execute and return such release and
waiver of claims to the Company within twenty-one (21) days of receipt, shall
subject any stock options granted hereunder to forfeiture and shall require
you to repay any cash payments provided hereunder upon the expiration of such
twenty-one (21) day period.
DISPUTE RESOLUTION
To the extent that any disputes regarding this Amended and Restated
Retention Agreement may arise, they shall be resolved in accordance with the
terms of Section 10 of the Employment Agreement.
We hope that you appreciate the unique nature of this arrangement
and we are pleased to recognize the important role we anticipate you will
play during the Retention Period. In order to accept this offer, you must
execute this letter where provided below and return it to Xxxxxx Xxxxxxxxx,
by no later than February __, 2002.
VARIAGENICS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxxxx
Director
ACCEPTED AND AGREED:
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Date: 2/13/02
----------------------
--------------------
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 24b-2 of the Securities Exchange Act of
1934.
4
RELEASE
You hereby agree and acknowledge that by signing this Release, you
are waiving your right to assert any form of legal claim against Variagenics,
Inc. ("Variagenics" or the "Company")(1) whatsoever for any alleged action,
inaction or circumstance existing or arising from the beginning of time
through the date on which you sign this Release. Your waiver and release
herein is intended to bar any form of legal claim, charge, complaint or any
other form of action (jointly referred to as "Claims") against Variagenics
seeking any form of relief including, without limitation, equitable relief
(whether declaratory, injunctive or otherwise), the recovery of any damages
or any other form of monetary recovery whatsoever (including, without
limitation, back pay, front pay, compensatory damages, emotional distress
damages, punitive damages, attorneys fees and any other costs) against
Variagenics for any alleged action, inaction or circumstance existing or
arising through the date on which you sign this Release.
Without limiting the foregoing general waiver and release, you
specifically waive and release Variagenics from any Claims arising from or
related to your employment relationship with the Company or the termination
thereof, including without limitation:
(i) Claims under any local, state, federal or foreign
discrimination, fair employment practices or other employment
related statute, regulation or executive order (as they may
have been amended through the date on which you sign this
Release) prohibiting discrimination or harassment based upon
any protected status including, without limitation, race,
religion, citizenship, national origin, age, gender, genetic
carrier status, marital status, disability, veteran status or
sexual orientation. Without limitation, specifically included
in this paragraph are any Claims arising under the federal Age
Discrimination in Employment Act, the Older Workers Benefit
Protection Act, the Civil Rights Acts of 1866 and 1871, Title
VII of the Civil Rights Act of 1964, the Civil Rights Act of
1991, the Equal Pay Act, the Immigration Reform and Control
Act, the Americans With Disabilities Act and any similar
local, state, federal or foreign statute or law.
(ii) Claims under any other local, state, federal or foreign
employment related statute, regulation or executive order (as
they may have been amended through the date on which you sign
this Release) relating to wages, hours or any other terms and
----------------
(1) For the purposes of this Section the parties agree that the phrase,
"Variagenics, Inc.", shall include Variagenics, Inc., its divisions,
affiliates, parents and subsidiaries, and its and their respective officers,
directors, employees, agents and assigns.
--------------------
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 24b-2 of the Securities Exchange Act of
1934.
5
conditions of employment. Without limitation, specifically
included in this paragraph are any Claims arising under the
Fair Labor Standards Act, the Family and Medical Leave Act of
1993, the National Labor Relations Act, the Employee
Retirement Income Security Act of 1974, the Consolidated
Omnibus Budget Reconciliation Act of 1985 ("COBRA") and any
similar local, state, federal or foreign statute or law.
(iii) Claims under any local, state, federal or foreign common law
theory including, without limitation, wrongful discharge,
breach of express or implied contract, promissory estoppel,
unjust enrichment, breach of a covenant of good faith and fair
dealing, violation of public policy, defamation, interference
with contractual relations, intentional or negligent
infliction of emotional distress, invasion of privacy,
misrepresentation, deceit, fraud or negligence.
(iv) Claims under any local, state or federal securities law,
including, without limitation, the Securities Act of 1933, as
amended, the Securities Exchange Act of 1934, as amended, and
any Massachusetts, Delaware or other state or local securities
statutes and regulations.
(v) Any other Claim arising under local, state or federal law.
You acknowledge and agree that but for providing this waiver and
release, you would not be receiving the consideration provided to you by the
Company through the Retention Agreement between you and the Company.
Because you are more than forty (40) years of age, you have specific
rights under the Older Workers Benefits Protection Act ("OWBPA"), which
prohibits discrimination on the basis of age, and that the releases set forth
herein are intended to release any right that you may have to file a claim
against the Company alleging discrimination on the basis of age.
It is the Company's desire and intent to make certain that you fully
understand the provisions and effects of this letter. To that end, you have
been encouraged and given the opportunity to consult with legal counsel for
the purpose of reviewing the terms of this Release. Consistent with the
provisions of OWBPA, your signature below confirms that the Company has
provided you with at least twenty-one (21) days in which to consider and
accept the terms of this Release. In addition, you may rescind your assent to
this Agreement if, within seven (7) days after you sign this Agreement, you
deliver a written
--------------------
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 24b-2 of the Securities Exchange Act of
1934.
6
notice of rescission to the Company's Board of Directors. To be effective,
such rescission must be in writing and must be hand-delivered or post-marked
within the seven (7) day period and sent by certified mail to Variagenics in
care of Xxxxxx Xxxxxxxxx.
Confirmed and Agreed: Variagenics, Inc.
__________________________________ By: _______________________________
Xxxxxx X. Xxxxxx
Dated: _____________________, 2002 Dated: ______________________, 2002
--------------------
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 24b-2 of the Securities Exchange Act of
1934.
7
Schedule A
COMPETING BUSINESSES
[________]
[____]
[____]
[________]
[____]
[____]
[________]
[____]
[____]
[____]
[________]
--------------------
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 24b-2 of the Securities Exchange Act of
1934.
8
