Exhibit 10.1
EMPLOYMENT SEPARATION AGREEMENT AND
RELEASE
This Employment Separation Agreement and
Release (the “Agreement”) is made and entered into this
23rd day of November, 2007 (the “Execution Date”), by
and between Osiris Therapeutics, Inc., a Delaware corporation (the
“Company”), and Cary J. Claiborne (the
“Executive”). The Company and the Executive are
sometimes referred to as the “Parties” or individually
as a “Party” to this Agreement.
RECITALS
The
Executive has been employed by the Company since December
2004. His positions with the Company as of November 23, 2007
(the “Separation Date”) were Chief Financial Officer
and Corporate Secretary.
The
Executive has submitted his resignation effective on the Separation
Date and the Company has accepted that resignation. The
Executive and the Company now desire to confirm the resignation of
Executive and set forth the terms of severance and release.
.
NOW, THEREFORE, in consideration of the
foregoing, the promises and covenants contained in this Agreement,
and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the Parties, the
Parties agree as follows:
1.
Incorporation of Recitals
. The Recitals set forth above are incorporated by reference
as part of this Agreement.
2.
Separation of Employment
. The Executive hereby confirms that he previously resigned
from employment, as well as from all positions with the Company or
any affiliated entity, including without limitation his positions
as Chief Financial Officer and Corporate Secretary, in each case
effective as of the Separation Date. The Executive’s
termination from employment will be treated as a voluntary
termination under Section 8(e) of the Employment Agreement dated as
of December 3, 2004 (the “Employment Agreement”)
between the Executive and the Company.
3.
Severance Pay and Benefits
. The Company shall provide the following severance benefits
and make the following payments to the Executive (the
“Separation Benefits”), in addition to the other
benefits generally available to Company employees on termination of
employment, in consideration for entering into this Agreement and
providing the release set forth in Section 5:
(a) Severance pay in the total amount of
$158,333.30, representing ten (10) months of the
Executive’s base salary in effect as of the Separation
Date. To the extent required by law, the Company shall
withhold from any payments due Executive under this Agreement any
applicable federal, state or local taxes and such other deductions
as are prescribed by law or Company policy;
(b) plus all
medical, life, and disability benefits, if any, Executive had been
receiving immediately preceding the Separation Date for the a
period of one year following the Separation Date; provided,
however, that the Company’s obligation to continue to
provide the Executive with
medical, life, or disability benefits pursuant to this clause
(b) shall cease at
such time as the Executive first becomes eligible to participate in generally similar benefit
arrangements as a result of the Executive’s subsequent
employment, whether as part of an organization or as an independent
consultant.
4.
Impact on Employment Agreement/
Stock Options and Other Rights . Without the need for
any further action on the part of the Executive or the Company,
effective on the Separation Date, the Employment Agreement, dated
December 3, 2004, between the Company and the Executive shall
terminate and be of no further force and effect. In addition,
the Executive agrees that all rights of the Executive in and to any
outstanding stock options, warrants, restricted stock or other
rights in and to equity or other securities of the Company, whether
or not exercisable (but excluding shares of Common Stock held
outright by the Executive free of restrictions other than
securities law restrictions) are terminated and the Executive
waives any and all rights thereunder or thereunto.
5.
General Release of Claims
.
(a)
The Executive, for himself and his heirs, executors, administrators
and assigns, if any, and anyone purporting to claim by or through
the Executive, does hereby waive, release and forever discharge the
Company, its subsidiaries, predecessors, successors, assigns,
employee benefit plans and trusts, if any, and each of their past,
present and future managers, members, directors, officers,
partners, agents, employees, attorneys, representatives,
fiduciaries, plan sponsors, administrators and trustees, if any,
(hereinafter collectively “the Company Released
Parties”), of and from any and all actions, causes of action,
claims (including without limitation, any claim for wrongful
discharge or breach of contract and claims under the federal, state
or local employment discrimination law such as Title VII of the
Civil Rights Act, the Americans with Disabilities Act, the Age
Discrimination in Employment Act and other similar laws) suits,
demands, rights, damages, accounts, judgments, wages, commissions,
executions, debts, obligations, attorneys’ fees, costs and
all other liabilities of any kind or description whatsoever, either
at law or in equity, whether known or unknown, suspected or
unsuspected and whether or not based on his employment or the
termination of his employment, that the Executive ever had, now has
or may have or claim to have in the future against any of the
Company Released Parties for or by reason of any cause, matter or
event whatsoever, from the beginning of time to the date of this
Agreement. The Executive further agrees that he will not
bring any law suit or arbitration against any of the Company
Released Parties for any claims hereby released.
Notwithstanding anything to the contrary set forth in this Section,
this Release shall not apply to claims relating to the validity or
enforcement of this Agreement, claims for any accrued benefit under
the terms of any employee benefit plan within the meaning of the
Employee Retirement Income Security Act maintained by the Company
(except that it will apply to any severance benefits that otherwise
might be payable outside of this Agreement) or claims for
indemnification or defense to which the Executive is entitled under
the Certificate of Incorporation, the Bylaws and/or any insurance
policy of the Company or its subsidiaries.
2
(b)
Because the Executive is at least forty (40) years of age, he has
specific rights under the Older Workers Benefit Protection Act
(“OWBPA”), which prohibits discrimination on the basis
of age. It is the Company’s desire and intent to make
certain the Executive fully understand the provisions and effect of
this Agreement. To that end, the Executive is encouraged, and
has been given the opportunity, to consult with legal counsel for
the purpose of reviewing the terms of this Agreement. As
required by the OWBPA, the Company has attached to this Agreement
as Exhibit A information
regarding the job titles and ages of other employees in the
Executive’s job classification or organizational unit who are
not eligible for separation pay and benefits. Also,
consistent with the provisions of the OWBPA, and as described in
Section 14 of this Agreement, the Company is providing the
Executive with forty-five (45) days in which to consider and accept
the terms of this Agreement.
(c)
The Company does hereby waive, release and forever discharge the
Executive, his heirs, executors, administrators and assigns, if any
(the “Executive Released Parties”), of and from any and
all actions, causes of action, claims, suits, demands, rights,
damages, accounts, judgments, wages, commissions, executions,
debts, obligations, attorneys’ fees, costs and all other
liabilities of any kind or description whatsoever, either at law or
in equity, whether known or unknown, suspected or unsuspected, that
the Company ever had, now has or may have or claim to have in the
future against any of the Executive Released Parties for or by
reason of any cause, matter or event whatsoever, from the beginning
of time to the date of this Agreement. The Company further
agrees that it will not bring any law suit or arbitration against
any of the Executive Released Parties for any claims hereby
released. Notwithstanding anything to the contrary set forth
in this Section, this Release shall not apply to claims relating to
the validity or enforcement of this Agreement, claims for
reimbursement of amounts paid in indemnification, if it is finally
determined by a court of competent jurisdiction that the
Company’s indemnification of the Executive was improper and
for claims under Section 16 of the Securities Exchange Act of 1934,
as amended, or for claims under any insider trading
law.
6.
Return of Company Property
. All information and documents relating to the Company shall
be the exclusive property of the Company and the Executive shall
use his best efforts to prevent any publication or disclosure
thereof. By the Execution Date, the Executive shall have
delivered to the Company all Company property of any kind or
character, which shall include, but not be limited to, all Company
identification and credit cards, any Company equipment, books,
keys, journals, records, publications, files, computers and
computer disks, memoranda and documents of any kind or description,
or any other Company property that ma
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