EXHIBIT 99.1
RETENTION AGREEMENT
-------------------
July 25, 2006
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
[ADDRESS]
Dear ▇▇▇:
The purpose of this Retention Agreement (hereinafter the Agreement) is to
confirm the terms of your resignation from EPIX Pharmaceuticals, Inc. ("EPIX" or
"Company") and the Company's offer to make certain payments to you. The
Retention Pay described below is contingent on your agreement to and compliance
with the terms of this Agreement. The Effective Date of this Agreement shall be
the eighth day following the day that you sign it.
1. SEPARATION OF EMPLOYMENT. You acknowledge that you have submitted your
resignation as Principal Accounting Officer and Executive Director of Finance,
which resignation shall be effective on August 10, 2006 (the "Separation Date").
Until the Separation Date you shall continue to be eligible to participate in
Company benefits and shall continue to receive your current salary, accrue
vacation time, and vest in your existing option grants. You shall not be
eligible for any bonuses, commissions, or other payments, except as set forth in
this Agreement.
2. RETENTION PAY. In exchange for the covenants set forth in this Agreement
(including your release of claims), and contingent upon your continued
employment and performance of your duties until the Separation Date, the Company
shall pay you the lump sum amount of $68,667, less applicable withholdings, on
the Separation Date. You acknowledge and agree that this payment supersedes and
terminates any right you may have to any other payments relating to retention or
severance. Notwithstanding the foregoing, in the event that, prior to the
Separation Date, your employment is terminated by the Company without Cause or
by you for Good Reason, the Company shall pay you the Retention Bonus on the
first regular pay date following such termination. For purposes of this section,
"Cause" shall mean: (a) your willful and continued failure to substantially
perform your assigned duties; or (b) your willful engagement in illegal conduct
or gross misconduct which is materially injurious to the Company. For purposes
of this Agreement, "Good Reason" shall mean (i) the assignment to you of any
duties materially and obviously inconsistent with your position as Principal
Accounting Officer and Executive Director of Finance; or (ii) a material
reduction in your gross biweekly base salary.
3. CONFIDENTIALITY AND RELATED COVENANTS. You hereby agree and acknowledge
that you remain subject to the Invention and Non-Disclosure Agreement (the
Inventions Agreement) signed by you on March 3, 2003. The terms of the
Inventions Agreement are incorporated herein and shall survive the signing of
this Agreement, and you hereby reaffirm your obligation to fully abide by the
provisions of the Inventions Agreement. You further agree that you otherwise
shall abide by any and all common law and/or statutory obligations relating to
protection and non-disclosure of Company's trade secrets and/or confidential and
proprietary documents and information.
4. RELEASE OF CLAIMS.
(i) You hereby agree and acknowledge that by signing this Agreement
and agreeing to the good and valuable consideration provided for in this
Agreement, you are waiving your right to assert any form of legal claim
against Company(1) whatsoever for any alleged action, inaction or
circumstance existing or arising from the beginning of time through the
date you sign this Agreement. Your waiver and release herein is intended,
to the maximum extent allowed by law. to bar any form of legal claim,
charge, complaint or any other form of action (jointly referred to as
"Claims") against Company 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 Company, for any alleged
action, inaction or circumstance existing or arising through the date you
sign this Agreement.
(ii) Without limiting the foregoing general waiver and release, you
specifically waive and release Company from any releasable Claim arising
from or related to your employment relationship with Company or the
termination thereof, including, without limitation:
** Claims under any state or federal discrimination, fair employment
practices or other employment related statute, regulation or
executive order (as they may have been amended through the
Effective Date) prohibiting discrimination or harassment based
upon any protected status including, without limitation, race,
national origin, age, gender, marital status, disability, veteran
status or sexual orientation.
** Claims under any other state or federal employment related
statute, regulation or executive order (as they may have been
amended through the Effective Date) relating to wages, hours,
compensation, wage payment, or any other terms and conditions of
employment.
** Claims under any state or federal 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.
** Any other Claim arising under state or federal law of any kind.
(iii) Notwithstanding the foregoing, this section does not release the
Company from any obligation expressly set forth in this Agreement, is not
intended to and shall not act as a waiver or release of any claims that
you cannot by law waive or release, and does not waive any of your rights
to indemnification by the Company.
(iv) This section does not prohibit you from challenging the validity
of this release under the federal Age Discrimination in Employment Act
("ADEA"), filing a charge or complaint of age discrimination with the
federal Equal Employment Opportunity Commission ("EEOC"), or
participating in any investigation or proceeding conducted by the EEOC.
In addition, nothing in this release or this Agreement shall limit EPIX's
right to seek immediate dismissal of such charge or complaint on the
-----------
(1) For the purposes of this Section 4, "Company" shall include EPIX
Pharmaceuticals, Inc. and any of its divisions, affiliates, subsidiaries,
holding companies, and all other related entities, and its and their directors,
officers, employees, trustees, agents, successors and assigns.
2
basis that your signing of this Agreement constitutes a full release of
any individual rights under the ADEA or other laws, or seek recovery from
you, to the extent permitted by law, of the consideration provided to you
under this Agreement in the event that you successfully challenge the
validity of this release and prevail on the merits of a claim under the
ADEA or other laws.
(v) You acknowledge and agree that, but for providing this waiver and
release, you would not be receiving the consideration being provided to
you under the terms of this Agreement.
5. SUPPLEMENTAL RELEASE. You agree that as a condition of receiving the
Retention Pay, you will execute the attached Supplemental Release of Claims on
or about the Separation Date.
6. ADEA CONSIDERATION AND RESCISSION PERIODS. You and EPIX acknowledge that
you are 40 years of age or older and that you, therefore, have specific rights
under the ADEA, which prohibits discrimination on the basis of age. You and the
Company further acknowledge and agree that the release set forth above is
intended to release any right you may have to file a claim against Company
alleging discrimination on the basis of age. Consistent with the provisions of
the ADEA, you shall have twenty-one (21) days (the "Consideration Period") from
your receipt of this Agreement to consider and accept its terms by signing
below, and you are advised to consult with an attorney prior to signing this
Agreement. In addition, you may rescind your assent to this Agreement if, within
seven (7) days after the date you sign this Agreement (the "Rescission Period"),
you deliver a notice of rescission to ▇▇▇▇▇▇ ▇▇▇▇▇, EPIX Pharmaceuticals, Inc.,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. To be effective, such rescission must be
hand delivered or postmarked within the seven (7) day period.
7. VOLUNTARY AGREEMENT. You acknowledge that you have been given sufficient
time and opportunity to consult with legal counsel for the purpose of reviewing
the terms of this Agreement. By executing this Agreement, you are acknowledging
that you have been afforded sufficient time to understand the terms and effects
of this Agreement, that your agreements and obligations hereunder are made
voluntarily, knowingly and without duress, and that neither Company nor its
agents or representatives have made any representations inconsistent with the
provisions of this Agreement.
8. ENTIRE AGREEMENT/CHOICE OF LAW/FULL AGREEMENT. Except as expressly
provided for herein, this Agreement supersedes any and all prior oral and/or
written agreements and sets forth the entire agreement between you and Company
(but does not supersede or terminate the Consulting Agreement dated July 25,
2006 or the Inventions Agreement). No variations or modifications hereof shall
be deemed valid unless reduced to writing and signed by the parties hereto. This
Agreement shall take effect as an instrument under seal and shall be governed by
and construed in accordance with the laws of Massachusetts. The provisions of
this Agreement are severable, and if for any reason any part hereof shall be
found to be unenforceable, the remaining provisions shall be enforced in full.
3
If the foregoing correctly sets forth our understanding, please sign,
date and return the enclosed copy of this Agreement to ▇▇▇▇▇▇ ▇▇▇▇▇ at EPIX
Pharmaceuticals, Inc. within 21 days of the date of this letter.
Very truly yours,
EPIX Pharmaceuticals, Inc.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Confirmed and Agreed:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Dated: July 25, 2006
4
SUPPLEMENTAL RELEASE OF CLAIMS
I, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, hereby agree and acknowledge that for the good and
valuable consideration set forth in the Retention Agreement dated July 25, 2006,
I am waiving my right to assert any form of legal claim against Company(1)
whatsoever for any alleged action, inaction or circumstance existing or arising
from the beginning of time through the date I sign this Supplemental Release of
Claims. I hereby affirm the release I agreed to as part of the Retention
Agreement and further agree that such release is valid for all claims existing
or arising through the date I am executing this Supplemental Release of Claims.
My 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
Company 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 Company,
for any alleged action, inaction or circumstance existing or arising through the
date I sign this Supplemental Release.
_________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Date: __________________________
--------------
(1) For the purposes of this Supplemental Release, "Company" shall include
EPIX Pharmaceuticals, Inc. and any of its divisions, affiliates, subsidiaries,
holding companies, and all other related entities, and its and their directors,
officers, employees, trustees, agents, successors and assigns.
5
