Exhibit 10.1
EMPLOYMENT SEPARATION AGREEMENT
AND RELEASE
This Employment Separation Agreement
and Release (the “Agreement”) is made and entered into
as of this 8th day of September, 2009 (the “Execution
Date”), by and between Osiris Therapeutics, Inc., a
Delaware corporation (the “Company”), and Richard W.
Hunt (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 July 2008. His position with the
Company as of September 8, 2009 (the “Separation
Date”) was Chief Financial Officer.
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 resigned from employment, as well as from all
positions with the Company or any affiliated entity, including
without limitation his position as Chief Financial Officer, in each
case effective as of the Separation Date. The
Executive’s termination from employment will be treated as a
voluntary termination under Section 7(iii) of the
Employment Agreement dated as of July 23, 2008 (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. The Executive acknowledges that the following
severance pay and benefits are in addition to anything of value to
which the Executive is or might otherwise be entitled if he did not
sign this Agreement.
(a)
Severance pay in
the total amount of $45,000.00, representing two (2) months of
the Executive’s base salary in effect as of the Separation
Date, to be paid within five days after the Effective Date of this
Agreement. 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 two
months following the Separation Date.
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
July 23, 2008, 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, except for the
stock options for 30,000 shares of the Company’s common stock
which were vested as of the Separation Date and resulted from a
grant dated July 23, 2008, which shall remain exercisable for
a period of 90-days after the Separation Date.
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 laws 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 now has or has had against any of
the Company Released Parties for or by reason of any cause, matter
or event whatsoever, through the date the Executive signs this
Agreement. 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 that cannot be
waived under applicable law (e.g., unemployment compensation
claims), 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. Nothing in this Agreement
precludes the filing of an administrative charge with the Equal
Employment Opportunity Commission (“EEOC”) or the
Executive’s ability to testify, assist or participate in an
investigation, hearing or proceeding conducted by the EEOC, though
the Executive shall not seek or accept any personal or monetary
relief should he or any other person, organization or entity assert
any such claim on his behalf.
(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. Also,
consistent with the provisions of the OWBPA, and as described in
Section 13 of this Agreement, the Company is providing the
Executive with twenty-one (21) days in which to consider and accept
the terms of this Agreement and seven (7) days after he signs
this Agreement to revoke it.
(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 now has or has had against any of the Executive Released
Parties for or by reason of any cause, matter or event whatsoever,
through the date it signs this Agreement. 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 or to claims based on the
Executive’s intentional acts.
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,
publicat
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