|
Exhibit 10.1
EXECUTION COPY
SETTLEMENT AGREEMENT AND RELEASE
THIS SETTLEMENT AGREEMENT AND RELEASE ("Settlement Agreement")
sets out the complete agreement and understanding between
TRIMERIS, INC. (the "Company") and STEVEN SKOLSKY
(the "Executive" or "Mr. Skolsky") regarding the termination
of Executive’s employment with the Company.
WHEREAS, Mr. Skolsky has been employed by the Company since
September 8, 2004; and
WHEREAS, on November 14, 2006, the Company delivered to the
Executive a notice of termination without Cause (as defined in that
certain Separation and Severance Agreement dated as of the 8th day
of September, 2004 between the Company and Executive (the
"Severance Agreement") terminating the Executive’s employment
with the Company 60 days thereafter;
NOW, THEREFORE, in consideration of the promises and conditions
set forth herein, the sufficiency of which is hereby acknowledged,
the Company and the Executive agree as follows:
1. Separation Date . Mr. Skolsky ceased to be Chief
Executive Officer of the Company as of November 14, 2006 and
his employment with the Company shall terminate effective with the
close of business on January 15, 2007 (the "Separation Date").
Prior to the Separation Date, the Executive shall continue to
perform such executive level and transition duties with the Company
as shall be reasonably requested by the Chairman of the
Company’s Board of Directors or the new Chief Executive
Officer of the Company.
2. Resignation from Officer and Board Positions .
Mr. Skolsky hereby resigns, effective as of the date hereof,
from his position on the Company’s Board of Directors and
from any and all positions as an officer or director of any of the
Company’s subsidiaries or affiliates.
3. Execution of this Settlement Agreement . The Company
hereby advises Mr. Skolsky to consult with an attorney of his
own choosing before signing this Settlement Agreement and the
Supplemental Release and he may take 21 calendar days to do so
(although Mr. Skolsky may voluntarily sign this Settlement
Agreement before the end of the 21-day period). Mr. Skolsky
must execute and return this Settlement Agreement to Michael
Alrutz, c/o Trimeris, Inc., 3500 Paramount Parkway, Morrisville, NC
27560, no later than 5:00 pm EST on December 19, 2006 and must
execute and return the Supplemental Release no earlier than
5:00 pm EST on January 15, 2007 and no later than 5:00 pm
EST on January 17, 2007, to the same address.
4. Payments and Rights .
(a) On the Separation Date, Mr. Skolsky shall be entitled
to receive the Accrued Amounts and Rights (as defined in
Section 5(c) of the employment agreement between the Executive
and the Company, dated as of September 4, 2004 (the
"Employment Agreement")). The Company shall pay the Executive any
payment portion of the Accrued Amounts and Rights on the Separation
Date; provided that, payment of any bonus for 2006 shall be paid
when bonuses are paid to other senior executives of the Company but
in no event later than March 15, 2007.
(b) The Company shall continue to provide Mr. Skolsky with
his benefits pursuant to Section 4(a) of the Employment
Agreement through the Separation Date (with the medical coverage
provided through continuation health coverage as of
December 1, 2006 because of reduced hours), including, without
limitation, the financial planning and tax preparation provided
therein. In addition, Mr. Skolsky shall continue to accrue
vacation ratably under Section 4(b) of the Employment
Agreement through the Separation Date. No bonus shall be paid for
any service after December 31, 2006.
(c) Mr. Skolsky’s stock options and restricted stock
shall become partially vested on the Separation Date pursuant to
the terms of the applicable grant agreements referenced in
Section 3(c) of the Employment Agreement, any remaining
unvested stock options and restricted stock under Section 3(c)
and otherwise shall then immediately expire and be forfeited, and
all of his then vested stock options shall be exercisable in
accordance with the terms of the applicable grant agreements.
(d) Assuming Mr. Skolsky executes and does not revoke this
Settlement Agreement and the Supplemental Release, the Company
shall pay and provide Mr. Skolsky the payments and benefits
described in Section 3 of the Severance Agreement. In
accordance with Section 409A of the Internal Revenue Code of
1986, as amended ("Section 409A") payments owed by the Company to
the Executive pursuant to Section 3(a) of the Severance
Agreement will be delayed to the extent the Company considers
necessary to avoid the imposition of any accelerated or additional
tax to the Executive under Section 409A until the day that is
six months plus one day after the Separation Date or such earlier
date as permitted under Section 409A (the "New Payment Date")
and provided that in no event shall any payments begin sooner than
the eighth day following execution of this Settlement Agreement.
(Mr. Skolsky agrees that, absent new and contrary guidance from the
Internal Revenue Service before the New Payment Date, no amounts in
Section 3(a) of the Severance Agreement shall be paid before
the New Payment Date, except that the six-month payment delay shall
not apply if he dies before the New Payment Date.) The aggregate of
any payments that otherwise would have been paid to Executive
during the period between the Separation Date and the New Payment
Date pursuant to Section 3(a) of the Severance Agreement shall
be paid to the Executive in a lump sum on such New Payment Date.
Thereafter, the payments pursuant to Section 3 of the
Severance Agreement that remain outstanding as of the day
immediately following the New Payment Date shall be paid ratably
and without delay in accordance with the Company’s regular
payroll practices for the remainder of the period set forth in
Section 3 of the Severance Agreement. The medical coverage
provided in Section 3(b) of the Severance Agreement will
consist of COBRA continuation coverage for the period COBRA applies
(beginning, as indicated above in Section 4(b) of this
Settlement Agreement at December 1, 2006 and running until
May 14, 2008 or such earlier date as of which
- 2 -
he ceases to be eligible under COBRA (or
extended, as applicable for a second qualifying event under Code
Section 4980B). During such coverage (but not beyond the
Salary Continuation Period as defined in the Severance Agreement),
the Company will pay directly the portion of the premiums it paid
for him while employed. The parties anticipate that the direct
payment of premiums will not be taxable to the Executive, but, if
Internal Revenue Service prevails in a position to the contrary,
the Company will pay any income taxes applicable to the payment of
the premiums and the payments pursuant to this sentence (but not
interest and penalties due from Mr. Skolsky); provided that,
to the extent necessary to avoid the imposition of any accelerated
or additional tax to the Executive under Section 409A, such
payments of income taxes shall be delayed until the New Payment
Date and the aggregate of any such payments that otherwise would
have been paid to Executive during the period between the
Separation Date and the New Payment Date shall be paid to the
Executive in a lump sum on such New Payment Date.
5. Release and Waiver . For and in partial consideration
of the severance benefits payments described in Section 4(d)
above, Executive hereby releases, waives and forever discharges the
Company, its parent, affiliates and subsidiaries, and all of its
benefit plans, plan administrators, trustees, agents, subsidiaries,
affiliates, employees, officers, directors, shareholders,
successors and assigns (hereafter the "Releasees") from any and all
liability, actions, charges, causes of action, demands, damages,
attorneys’ fees or claims for relief or remuneration of any
kind whatsoever, whether known or unknown at this time, arising out
of or in any way connected with Executive’s employment, or
the termination of employment, with the Company. These include, but
are not limited to, any claim (including related attorneys’
fees and costs) under the Age Discrimination in Employment Act,
Title VII of the Civil Rights Act of 1964, the Americans with
Disabilities Act, the Worker’s Adjustment and Retraining
Notification Act, the Equal Pay Act, the Corporate and Criminal
Fraud Accountability Act of 2002 (Sarbanes-Oxley whistleblower
provision), the North Carolina Equal Employment Practices Act, the
North Carolina Persons With Disabilities Protection Act, the North
Carolina Human Relations Commission Bias law, the North Carolina
Hazardous Chemicals Right to Know Act and the North Carolina
Retaliatory Employment Discrimination Act, all as amended, or any
other federal, state or local law or ordinance, and any claim for
benefits or other claims under the Employee Retirement Income
Security Act of 1974, as amended (except as expressly provided
below). This waiver, release and discharge also includes without
limitation, any wrongful or unlawful discharge claims, discipline
or retaliation claims, any claims relating to any contract of
employment, whether express or implied, any claims related to
promotions or demotions, any claims for or relating to relocation,
compensation including commissions, short term or long term
incentives, the Company’s Executive benefit plans and the
management thereof (except as expressly provided below), any claims
for defamation, slander, libel, invasion of privacy,
misrepresentation, fraud, infliction of emotional distress, any
claims based on stress to the extent permitted by law, any claims
for breach of any covenant of good faith and fair dealing, and any
other claims relating to the Executive’s employment with the
Company and termination thereof. This Settlement Agreement does not
apply to any claims or rights that may arise under the Age
Discrimination in Employment Act after the date that this
Settlement Agreement is signed; and provided further that nothing
in this Settlement Agreement prevents Executive from filing,
cooperating with or participating in any proceeding before the
Equal Employment Opportunity Commission or a state Fair Employment
Practices Agency (except that he acknowledges that he may not be
able to recover any monetary benefits in connection with any such
claim, charge or proceeding).
- 3 -
Executive expressly waives all claims,
including those that he does not know or suspect to exist in his
favor as of the date of this Settlement Agreement. As used in
this Settlement Agreement, the parties understand the word "claims"
to include all actions, claims and grievances, whether actual or
potential, known or unknown, and specifically but not exclusively
including all claims against the Releasees arising from
Executive’s employment with the Company, the termination
thereof or any other conduct by the Releasees occurring on or prior
to the date Executive signs this Settlement Agreement. All such
claims are forever barred by this Settlement Agreement whether they
arise in contract or tort or under a statute or any other
law.
Executive also understands and agrees that this release
extinguishes all claims, whether known or unknown, foreseen or
u
|
