Attached files
Exhibit 10.16.2
This Separation Agreement (the “Separation Agreement”) is made between Rebecca J. Peterson (“Executive”) and Alkermes, Inc. (the “Company,” together with Executive, the “Parties”).
WHEREAS, Executive has served as the Company’s Senior Vice President, Corporate Communications since July 2012;
WHEREAS, the Parties entered into an Employee Agreement with respect to Inventions and Proprietary Information dated November 30, 2000 (“Confidentiality Agreement”), and an employment agreement dated July 30, 2012 and an amendment to that agreement as of July 22, 2015 (together, “Employee Agreement”). The Confidentiality Agreement and Employee Agreement as amended are hereinafter collectively referred to as the “Employment Documents”;
WHEREAS, Executive entered into a Deed of Indemnification with Alkermes plc dated July 30, 2012 (“Deed”);
WHEREAS, Executive holds restricted shares of the Alkermes plc ordinary stock and options to purchase shares of the Company’s ordinary stock (all of which are unvested) that are governed by the Alkermes plc 2011 Stock Option and Incentive Plan, and associated stock option certificates and restricted stock certificates (collectively “Equity Documents”);
WHEREAS, the Company and the Executive have mutually agreed that the Executive will resign from her employment with the Company;
WHEREAS, the Parties agree that Executive is not entitled to severance or separation benefits under the Employment Documents and that this Agreement shall supersede and replace the Employment Documents, including with respect to compensation, benefits, and severance, except to the extent that certain non-economic provisions and obligations of the Employment Documents are expressly preserved and incorporated by reference into this Separation Agreement; and
WHEREAS, the Company has agreed to provide Executive with, and wishes to set forth clearly the terms and conditions of, certain separation benefits (the “Separation Benefits”) provided that, among other things, the Executive enters into and complies with this Separation Agreement which includes a general release of claims in favor of the Company and related persons and entities;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
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Employment Separation. Executive shall resign and Executive’s employment with the Company shall end on October 21, 2015 (“Separation Date”). In connection |
with the ending of Executive’s employment, the Company shall pay Executive her base salary accrued to Executive through the Separation Date and pay Executive for all accrued but unused vacation time due to Executive through the Separation Date. Executive acknowledges that as of the Separation Date, Executive’s accrued but unused vacation time totaled 564 hours. |
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Separation Benefits. The Parties agree that Executive’s resignation from employment with the Company is not for “Good Reason” as defined in the Employee Agreement. Accordingly, the Parties agree that Executive is not entitled to the “Compensation Upon Termination” described in section 5(b) of the Employee Agreement. Nevertheless, in exchange for, among other things, her signing, delivering and not revoking a General Release of Claims in the form of Exhibit A hereto (the “Release”), the Company agrees to provide Executive with the following Separation Benefits: |
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(a) Severance Amount. The Company shall pay Executive $375,000 which represents an amount equal to one times the sum of the Executive’s current Base Salary (“Severance Amount”). |
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(b) Bonus Amount. The Company shall pay Executive a bonus of $140,623 (“Bonus Amount”). Executive acknowledges and agrees that she is not entitled to any other bonus or incentive compensation. |
Provided Executive enters into and complies with this Separation Agreement and the Release, the Severance Amount and Bonus Amount shall be paid in a lump sum to the Executive within thirty (30) days of the date of signature of the Release. If Executive dies before the payment of the Severance Amount and Bonus Amount, the Severance Amount and Bonus Amount shall be paid to Executive’s spouse; if he is not alive at the time, to Executive’s estate.
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(c) Unemployment. The Company agrees not to contest any claim that Executive has filed or may file asserting that Executive became eligible for unemployment insurance benefits from the Department of Unemployment Assistance of the Commonwealth of Massachusetts (the “DUA”) as a result of the separation of Executive’s employment with the Company. Executive acknowledges that any unemployment insurance eligibility determination shall be made by the DUA. |
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(d) Outplacement. The Company shall pay up to $25,000 of the cost of professional outplacement services utilized by Executive and provided by a legitimate outplacement services firm selected by Executive; provided that Executive begins |
utilizing such services no later than three months after the Separation Date. The Company will pay the outplacement service firm directly. |
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(A) The remaining 2,120 shares of an Incentive Stock Option granted on March 3, 2014 at an exercise price of $47.16 per share; |
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(B) The remaining 44,005 shares of a Non-Qualified Stock Option granted on March 3, 2014 at an exercise price of $47.16 per share; |
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(C) The remaining 2,965 shares of an Incentive Stock Option granted on May 28, 2013 at an exercise price of $33.72 per share; |
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(D) The remaining 37,035 shares of a Non-Qualified Stock Option granted on May 28, 2013 at an exercise price of $33.72 per share; |
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(E) The remaining 6,042 shares of an Incentive Stock Option granted on May 21, 2012 at an exercise price of $16.55 per share; and |
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(F) The remaining 12,708 shares of a Non-Qualified Stock Option granted on May 21, 2012 at an exercise price of $16.55 per share. |
The Parties acknowledge and agree that due to Executive’s separation from employment with the Company, the following Incentive Stock Options shall remain unvested and terminate on the Separation Date: (i) the 1,403 shares of an Incentive Stock Option granted on February 26, 2015 at an exercise price of $71.23 per share; and (ii) the 52,597 shares of a Non-Qualified Stock Option granted on February 26, 2015 at an exercise price of $71.23 per share.
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(A) The remaining 13,000 shares of the Company’s Common Stock pursuant to a Restricted Stock Award granted on February 26, 2015; |
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(B) The remaining 10,500 shares of the Company’s Common Stock pursuant to a Restricted Stock Award granted on March 3, 2014; |
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(C) The remaining 7,500 shares of the Company’s Common Stock pursuant to a Restricted Stock Award granted on May 28, 2013; and |
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(D) The remaining 2,500 shares of the Company’s Common Stock pursuant to a Restricted Stock Award granted on May 21, 2012. |
imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, then no such payment shall be payable or benefit shall be provided prior to the date that is the earlier of (A) six months after Executive’s separation from service, or (B) Executive’s death, and the initial payment shall include a catch-up amount covering amounts that would otherwise have been paid during the first six-month period but for the applications of this Section 5. The Parties intend that this Agreement will be administered in accordance with Section 409A of the Code and is either exempt from or in compliance with Section 409A of the Code. The Parties agree that this Agreement may be amended, as reasonably requested by either Party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either Party. |
purposes of clarity, by complying with this paragraph, Executive will not be violating any sections of the Employment Documents. |
IN WITNESS WHEREOF, the Parties, intending to be legally bound, have executed this Separation Agreement on the date(s) indicated below.
ALKERMES, INC.
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/s/ Madeline Coffin Madeline Coffin Vice President, Human Resources |
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October 21, 2015 Date |
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/s/ Rebecca J. Peterson Rebecca J. Peterson |
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October 21, 2015 Date |
EXHIBIT A
I, Rebecca J. Peterson, in consideration for, among other terms, the Separation Benefits, to which I acknowledge I would otherwise not be entitled, voluntarily release and forever discharge the Company, its affiliated and related entities, its and their respective predecessors, successors and assigns, its and their respective employee benefit plans and fiduciaries of such plans, and the current and former officers, directors, shareholders, employees, attorneys, accountants and agents of each of the foregoing in their official and personal capacities (collectively referred to as the “Releasees”) generally from all claims, demands, debts, damages and liabilities of every name and nature, known or unknown (“Claims”) that, as of the date when I sign this Agreement, I have, ever had, now claim to have or ever claimed to have had against any or all of the Releasees. This release includes, without limitation, all Claims:
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under any other federal or state statute (including, without limitation, Claims under the Worker Adjustment and Retraining Notification Act or the Fair Labor Standards Act); |
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for damages or other remedies of any sort, including, without limitation, compensatory damages, punitive damages, injunctive relief and attorney’s fees; |
provided, however, that this release shall not affect my vested rights under the Company’s Section 401(k) plan, my rights under the Separation Agreement and the Equity Documents referenced in the Separation Agreement and my rights to indemnification and defense, if any, including but not limited to my rights as set forth in the Deed.
I agree that I shall not accept damages of any nature, other equitable or legal remedies for my own benefit, attorney’s fees, or costs from any of the Releasees with respect to any Claim released hereby. As a material inducement to the Company to provide the Separation Benefits, I represent that I have not assigned to any third party any Claim released hereby.
I have had the opportunity to consider this Release for twenty-one (21) days before signing it. If I have signed this Release within less than twenty-one (21) days of the date of its delivery to me, I acknowledge by signing this Release that such decision was entirely voluntary and that I had the opportunity to consider this Release for the entire twenty-one (21) day period. For the period of seven (7) days from the date when I sign this Release, I have the right to revoke this Release by written notice to Kathryn L. Biberstein, Chief Legal Officer, Alkermes, Inc., 852 Winter St., Waltham, MA 02451. For such a revocation to be effective, it must be delivered so that it is received by the
Company at or before the expiration of the seven (7) day revocation period. This Release shall not become effective or enforceable during the revocation period. This Release shall become effective on the first business day following the expiration of the revocation period.
I understand that this Release is a legally binding document and my signature will commit me to its terms. I acknowledge that I have been advised by the Company to discuss all aspects of this Release with my attorney, that I have carefully read and fully understand all of the provisions of this Release and that I am knowingly and voluntarily signing this Release.
In signing this Release, I am not relying upon any promises or representations made by anyone at or on behalf of the Company, other than the promises set forth in the Separation Agreement.
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Dated: ______________________________
EXHIBIT B
Rebecca Peterson Equity Statement
Stock Options
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Grant Date |
Plan |
Total Shares Unvested |
Price |
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3/3/2014 |
2011/ISO |
2,120 |
$47.16 |
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3/3/2014 |
2011/NQ |
44,005 |
$47.16 |
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5/28/2013 |
2011/ISO |
2,965 |
$33.72 |
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5/28/2013 |
2011/NQ |
37,035 |
$33.72 |
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5/21/2012 |
2011/ISO |
6,042 |
$16.55 |
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5/21/2012 |
2011/NQ |
12,708 |
$16.55 |
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Grant Date |
Plan |
Total Shares Unvested |
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2/26/2015 |
2011 |
13,000 |
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3/3/2014 |
2011 |
10,500 |
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5/28/2013 |
2011 |
7,500 |
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5/21/2012 |
2011 |
2,500 |
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Grant Date |
Plan |
Total Shares Unvested |
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3/3/2014 |
2011 |
5,000 |