Exhibit 10.37
C ONFIDENTIAL S EPARATION A ND R ELEASE A GREEMENT
September 28, 2005
Sharat Singh
27539 Julietta Lane
Los Altos Hills, CA 94022
Dear Sharat:
This letter sets forth the
Confidential Separation And Release Agreement (the
“Agreement”) that Monogram Biosciences, Inc. (the
“Company”) is offering to you to aid in your employment
transition.
1. Separation
. Your last day of work with the
Company and your employment termination date will be
October 7, 2005 (the “Separation
Date”).
2. Accrued Salary And
Vacation . On the
Separation Date, the Company will pay you all accrued salary, and
all accrued and unused vacation earned through the Separation Date,
subject to standard payroll deductions and withholdings. You are
entitled to these payments by law.
3. Severance
Payments.
(a) If this Agreement becomes effective, then the
Company will pay you severance in the form of base salary
continuation for one year following the Separation Date (at your
current base salary rate of $265,000.00 per annum). These payments
will be made on the Company’s regular payroll cycle beginning
on the first regularly-scheduled payroll date following the
Effective Date of this Agreement (as defined in paragraph 21
below), and will be subject to standard payroll deductions and
withholdings. Notwithstanding the above, payments which pursuant to
this paragraph would otherwise be made between the time period from
March 15, 2006 to the date that is six months from the
Separation Date, will be accelerated and paid as part of the
payment made on the payroll date immediately preceding
March 15, 2006.
(b) If this Agreement becomes effective, in full
payment of any bonuses owed to you, if any, pursuant to the Bonus
Plan adopted by the Company’s Board of Directors on
March 16, 2005 (the “Bonus Plan”) or otherwise,
the Company will also pay you $79,500. Such payment will be made on
January 30, 2006 and will be subject to standard payroll
deductions and withholdings.
(c) If this Agreement becomes effective, you agree
to provide consulting services as requested by the Company for up
to ten hours per week through January 30, 2006, and
thereafter, at the Company’s request, in
order to provide occasional assistance and review in connection
with the Company’s patent prosecution activities, with
payment for the requested consulting services to be $128 per hour
plus reimbursement of reasonable business expenses which are
approved in advance. This provision concerning consulting services
is not intended to and shall not operate to establish an
employer-employee relationship.
(d) If the Supplemental Release Agreement attached
hereto as Exhibit A becomes effective, the Company will pay
you an additional $5,000.00, subject to standard payroll deductions
and withholdings, on the first regularly-scheduled payroll date
after the ADEA Effective Date.
4. Outplacement.
The Company will provide you with
outplacement services through Spherion [408-255-3734] in an amount
not to exceed $15,000.00.
5. Health Insurance.
To the extent provided by the
federal COBRA law or, if applicable, state insurance laws, and by
the Company’s current group health insurance policies, you
will be eligible to continue your group health insurance benefits
at your own expense following the Separation Date. Later, you may
be able to convert to an individual policy through the provider of
the Company’s health insurance, if you wish. You will be
provided with a separate notice describing your rights and
obligations under COBRA. If you elect continued coverage under
COBRA, the Company, as part of this Agreement, will pay for your
COBRA premiums for the one year period following the Effective Date
of this Agreement.
6. Stock Options.
If this Agreement becomes effective,
then any options to purchase the Company’s capital stock that
you held as of the Separation Date shall become 100% vested and any
restrictions on shares in the Company’s capital stock held by
you as of the Separation Date shall lapse. Your right to exercise
any vested shares, and all other rights and obligations with
respect to your stock option(s), will be set forth in your stock
option agreement, grant notice and applicable plan documents. This
Agreement acknowledges that as previously agreed to by Aclara
Biosciences the exercise period applicable to the Stock Options is
eighteen (18) months from the last date of service.
7. Indemnification.
It is acknowledged that this
Agreement does not affect the terms and conditions of the
October 4, 2001 Indemnification Agreement between ACLARA
BioSciences, Inc and you, or any other indemnification rights you
may have, if any.
8. Parachute Payments.
Notwithstanding anything contained
in this Agreement to the contrary, in the event that the benefits
provided for in this Agreement to you together with all other
payments and the value of any benefit received or to be received by
you:
(a) constitute “parachute payments”
within the meaning of Section 280G of the Internal Revenue
Code of 1986, as amended, (the “Code”) and
(b) but for this paragraph 8, would be subject to
the excise tax imposed by Section 4999 of the Code, then your
benefits pursuant to the terms of this Agreement shall be payable
either:
(i) in full, or
2
(ii) as to such lesser amount which would result in
no portion of such benefits being subject to excise tax under
Section 4999 of the Code, whichever of the foregoing amounts,
taking into account the applicable federal, state and local income
taxes and the excise tax imposed by Section 4999, results in
the receipt by you on an after-tax basis, of the greatest amount of
benefits under this Agreement, notwithstanding that all or some
portion of such benefits may be subject to the excise tax imposed
under Section 4999 of the Code. Unless the Company and you
otherwise agree in writing, any determination required under this
paragraph 8 shall be made in writing by the Company’s
independent public accountants (the “ Accountants
”), whose determination shall be conclusive and binding upon
you and the Company for all purposes. For purposes of making the
calculations required by this paragraph 8, the Accountants may
make reasonable assumptions and approximations concerning
applicable taxes and may rely on reasonable, good faith
interpretations concerning the application of Sections 280G and
4999 of the Code. The Company shall cause the Accountants to
provide detailed supporting calculations of its determinations to
you and the Company. You and the Company shall furnish to the
Accountants such information and documents as the Accountants may
reasonably request in order to make a determination under this
paragraph. The Company shall bear all costs the Accountants may
reasonably incur in connection with any calculations contemplated
by this paragraph 8.
9. Other Compensation Or
Benefits. You acknowledge
that, except as expressly provided in this Agreement, you will not
receive any additional compensation, severance, or benefits after
the Separation Date.
10. Expense
Reimbursements. You agree
that, within ten (10) days of the Separation Date, you will
submit your final documented expense reimbursement statement
reflecting all business expenses you incurred through the
Separation Date, if any, for which you seek reimbursement. The
Company will reimburse you for these expenses pursuant to its
regular business practice.
11. Return Of Company
Property . By the
Effective Date, you agree to return to the Company all Company
documents (and all copies thereof) and other Company property that
you have had in your poss
