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EXHIBIT 10.21
October 20, 2004
Dave Nuti
5764 Auburn Drive
Madison, WI 53711
Dear Dave:
The following are the terms of an agreement
between you and Third Wave
Technologies, Inc.
AGREEMENT
1.
TRANSITION
PERIOD.
a. You
agree that you will continue serving as TWT's Chief
Financial Officer through the end of
business October 29, 2004, and that,
without limiting the foregoing, you will
participate in TWT's earnings call
scheduled for October 27, 2004 and if
completed, sign required lawful and
appropriate SEC filings for TWT's third
quarter financial results by October 29,
2004. Effective October 30, 2004, you will
cease serving as TWT's Chief
Financial Officer. TWT agrees that it will
pay you 100% of your accrued and
unused PTO through October 31, 2004 in your
pay check for the period ending
October 31, 2004. You will not accrue
additional PTO after October 30, 2004.
b. You
agree that the transition period for your orderly
departure from TWT will commence October
30, 2004, and will conclude December
31, 2004 ("Transition Period"), subject to
termination of the Transition Period
after October 30, 2004 and prior to
December 31, 2004 if you start a new job
during that period. During the Transition
Period, you will be employed as a
full-time financial advisor to TWT with
respect to non-forward-looking financial
data. You agree you will come to the work
site and make yourself available to
work during the Transition Period, as
directed by John Puisis or his designee,
on financial advisory projects specified by
John Puisis or his designee
consistent with the prior sentence. You
will be paid your current salary of
$220,000 per year on a prorata basis during
the Transition Period, to be paid in
accordance with TWT's regular payroll
schedule and less all deductions currently
in place and for taxes required by law.
Your existing benefits will continue
through December 31, 2004 (unless you
obtain alternative employment and
terminate the Transition Period
earlier).
2.
SEVERANCE
PAY. TWT will pay you non-cancelable severance payments
for six (6) months in the pre-tax amount of
$15,000 per month ($7,500/paycheck *
2 paychecks/month * 6 months).
Non-cancelable severance payments will commence
on the earlier of (i) January 1, 2005 or
(ii) the date between October 30, 2004
and December 31, 2004 that you terminate
the Transition Period as a result of
you starting a new job, and will end six
months thereafter (the "Severance
Period"). Subject to Paragraph 4 below,
severance will be payable in
installments on TWT's regular payroll
dates. Each installment will occur in the
amount stated above each payroll period.
Each severance payment will be subject
to deductions for income and payroll taxes.
You understand that TWT has made
this offer with the intent that you will
not receive unemployment compensation
until after the Severance Period ends and
you agree not to apply for
unemployment benefits until after the
Severance Period ends. TWT agrees it will
not affirmatively challenge your
entitlement to unemployment compensation
benefits after the Severance Period
ends.
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October 20, 2004
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TWT may,
in its sole discretion, elect to make cancelable severance
payments for an additional six (6) months
commencing on July 1, 2005 or at the
end of the six (6) month severance period,
if you have not secured alternative
employment by that date. Any such payments
shall not be deemed to extend the
"Severance Period" for purposes of TWT's
obligation to pay family health and
dental insurance premiums as described in
the immediately following paragraph.
TWT also
agrees to pay 100% of the insurance premiums for family health
and dental coverage during the Severance
Period, subject to the same insurance
policy co-payments currently in place, if
you elect continuation coverage
through TWT's group health policy pursuant
to COBRA (the "Insurance Payment").
You are responsible for paying the premiums
for any insurance coverage for you
or your family after the Severance Period
for health and dental, whether through
TWT's group health policy pursuant to COBRA
continuation rights or through any
other employer or individual plan. You
understand that your COBRA continuation
rights begin on the first day of the
Severance Period for health and dental
insurance, even though TWT agrees to pay
the premiums through the end of the
Severance Period for health and dental
insurance. You agree that TWT will in no
way be responsible for damages resulting
from any lapse in such coverage.
3.
SPECIAL
EQUITY. TWT will give you accelerated vesting on select
unvested stock options as identified in the
attached Exhibit A, which is
incorporated herein by this reference.
Additionally, for stock options already
vested on October 30, 2004, TWT will
provide an extended exercise date beyond
the ninety (90) day limitation up to two
years from October 30, 2004. The 10,000
options on the accelerated vesting
schedule, as identified on Exhibit A, will
vest on October 30, 2004, and may be
exercised within two years upon vesting.
Except for the 10,000 options, TWT may
revoke extended exercise provisions
provided within this paragraph at any time
at TWT's sole discretion for your
failure, in TWT's sole judgment, to act in
accordance with your obligations
hereunder or to act in the best interests
of TWT. In the event of such
revocation, you will receive written notice
from TWT and you will be able to
exercise only those options that were
vested per their original vesting schedule
as of October 30, 2004 provided such
exercise is completed within ninety (90)
calendar days of the date of TWT's notice
of revocation. You agree that you will
not trade any TWT security in violation of
any insider trading laws.
4.
RELEASE OF
CLAIMS. In exchange for the severance payments and other
consideration described in this Agreement,
you agree--for yourself, your heirs,
your beneficiaries and all other
representatives--to waive and release and, with
this Agreement, you do waive and release
all past or present claims of any
nature against TWT. Further, you agree not
to institute or cause to be
instituted in any state or federal court
any such action or claim. This waiver
and release of claims applies to any claims
against TWT or anyone associated
with or representing TWT--including, but
not limited to, its officers,
directors, partners, employees, attorneys,
or agents (the "Releasees").
a. Claims
Released. The claims you are waiving in exchange for
the payments and other consideration
described in this Agreement include, but
are not limited to, claims under federal,
state or local law including but not
limited to, the Civil Rights Act of 1964,
as amended; the Family Medical Leave
Act, the Americans with Disabilities Act;
the Wisconsin Fair Employment
Practices Act and if applicable, the Age
Discrimination in Employment Act, for
discrimination of any kind, tort, breach of
contract, wrongful discharge, lost
wages, compensatory damages, punitive
damages, attorneys' fees, and all other
claims of any type or nature, whether known
or unknown, matured or unmatured,
direct or indirect. Other claims you
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October 20, 2004
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are waiving are those that relate to
ownership of any intellectual property or
trade secrets developed during the term of
your employment. You acknowledge your
lab books and those of individuals who have
worked for or with you are complete
and you acknowledge that all intellectual
property and trade secrets conceived
or developed by you during the term of your
employment are solely the property
of TWT.
b. Your
Representation and Waiver. You represent that you have
not filed any such action or claim in any
court or before any state, federal or
other governmental agency. You forever
waive any right to recover money damages
or any other form of relief for any and all
claims waived under this Agreement.
You further agree to waive your rights to
and not accept any benefits which
might be conferred upon you in any
administrative court or other legal
proceeding concerning any claim released by
this Paragraph 4. You understand and
agree that this release forever bars you
from suing, arbitrating or otherwise
asserting a claim against TWT on any
released claim.
c. ADEA
Release and Waiver. In exchange for the amounts paid to
you under this Agreement, you specifically
waive any claims you may have under
the Age Discrimination in Employment Act of
1967, the Older Workers Benefit
Protection Act, or any similar law. You are
not waiving any rights or claims
that may arise after the date of this
Agreement. You further acknowledge that
you have been advised by this writing (i)
to consult with an attorney prior to
executing this Agreement; (ii) that you
have up to twenty-one (21) days to
review this Agreement and to decide whether
to accept it; (iii) that you have
seven (7) days after signing it to cancel
and revoke this Agreement; and (iv)
that this Agreement will not become
effective until the seven-day time period
has passed. If you give notice of
revocation before the end of the seven (7) day
period, this Agreement will become null and
void. TWT is not required to provide
any portion of any payment or other benefit
described in the Agreement before
the seven-day time period has passed.
d.
Consideration for the Release of Claims. You acknowledge that
the payments and other consideration TWT
has agreed to give under this Agreement
are benefits to which you would not have
been entitled if you did not sign this
Agreement and that TWT has agreed to
provide the consideration only if you sign
this Agreement and give up the c
