**Exhibit10.1**

 

 

July 7, 2009

 

Johan van Walsem

5 Orchard Drive

Acton, MA 01720

 

Re:  Employment Agreement

 

DearJohan:

 

Thisletter is to confirm our understanding with respect to your employment by Metabolix, Inc. (the “Company”).  The terms and conditions agreed to in thisletter are hereinafter referred to as the “Agreement.”  In consideration of the mutual promises andcovenants contained in this Agreement, and for other good and valuableconsideration, the receipt and sufficiency of which are hereby mutuallyacknowledged, we have agreed as follows:

 

1.     Employment.

 

1.1.    General.  The Company will employ you, and you will beemployed by the Company, as Vice President of Strategy and CommercialDevelopment of the Company, reporting to the Company’s Chief Executive Officer,****and you shall have the responsibilities,duty and authority commensurate with that position.  You will also perform such reasonable otherand/or different services for the Company as may be assigned to you from timeto time.  You agree that if youremployment hereunder ends for any reason, you will tender to the Company yourresignation of all offices with the Company as of the date of your termination.

 

1.2.    Devotion to Duties.  While you are employed hereunder, you willuse your best efforts, skills and abilities to perform faithfully all dutiesassigned to you pursuant to this Agreement and will devote your full businesstime and energies to the business and affairs of the Company.  While you are employed hereunder, you willnot undertake any other employment from any person or entity without the priorwritten consent of the Company.

 

2.     Term.  The Company hereby agrees to employ you, andyou hereby accept employment with the Company, upon the terms set forth in thisAgreement, for the period commencing on August 17, 2009 (or such otherdate as the parties shall mutually agree) (the “Commencement Date”) and endingon the first anniversary of the Commencement Date (such period is the “InitialTerm”), subject to earlier termination as provided in Section 4;

 

Metabolix | 21 Erie Street | Cambridge | MA | 02139 |USA

tel: 617 583 1700 | fax: 617 583 1767 | www.metabolix.com

 

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provided, however, that atthe end of such Initial Term and each anniversary date thereafter, the term ofthis Agreement will automatically be extended for an additional year unless,not less than thirty (30) days prior to the end of such Initial Term or one (1) yearextension period, as the case may be, the Company or you shall have givenwritten notice that it or you elects not to have the term extended.  The term of this Agreement as extended anddefined by this Section shall be referred to as the “Agreement Term.”

 

3.     Compensation.

 

3.1.    Base Salary.  While you are employed hereunder, the Companywill pay you a base salary at the annual rate of no less than $240,000 per year(the “Base Salary”).  The Company willpay such Base Salary on a semi-monthly basis in accordance with the Company’snormal payroll practices and will deduct from each monthly salary payment allamounts required to be deducted or withheld under applicable law or under anyemployee benefit plan in which you participate.

 

3.2.    Bonus Opportunity.  You will be eligible to receive an annualcash bonus in an amount of up to 150% of the Base Salary, based upon the Company’sgood faith assessment of your achievement of individual goals, and of theCompany’s achievement of its goals, which assessment shall be done by theCompany’s Compensation Committee in conjunction with the Company’s ChiefExecutive Officer.  Individual goals foreach calendar year will be established, and modified, in good faith by you andthe Chief Executive Officer in conjunction with the Company’s CompensationCommittee.  The Company expects that theannual target bonus opportunity will be in the range of 70% of your Base Salaryfor performance fully meeting those expectations.  To the extent the Company awards you a cashbonus, the bonus, if payable, shall be calculated and paid no later than twoand a half months following the later of the close of the calendar or Companyfiscal year to which such bonus relates. In order to receive an annual bonus, you must be employed at the time ofa timely payment.  For your first year ofemployment, and any other partial year, your cash bonus will be awarded on apro rata basis.

 

3.3.    Equity Compensation.  At the first meeting of the Company’sCompensation Committee following the Commencement Date, the Company shall grantyou a stock option under the Metabolix, Inc. 2006 Stock Option andIncentive Plan, as amended and restated (the “2006 Stock Plan”), to purchase 50,000shares of common stock of the Company (the “Option”) at an exercise price equalto the Fair Market Value (as defined in the 2006 Stock Plan) of the Company’scommon stock on the date of such grant. Provided you are employed by the Company on the vesting date, the Optionshall vest in equal installments as to 1/16 of the shares three months afterthe Commencement Date and on the last day of each three (3) month periodfollowing the first vesting date until the Option fully vests. Except asprovided herein, the Option will be subject to the terms and conditions of the2006 Stock Plan and the customary terms and conditions of the Company’sstandard form of stock option agreement. To the extent allowed pursuant to

 

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Section 422 of theInternal Revenue Code of 1986, as amended (the “Code”), such option shall bedeemed to be an incentive stock option.

 

3.4.    Vacation.  You will be entitled to paid vacation andpaid holidays, accrued and used in accordance with the Company’s policies as ineffect from time to time. All vacation days will be taken at times mutuallyagreed by you and the Company and will be subject to the business needs of the Company.

 

3.5.    Fringe Benefits.  You will be entitled to participate inemployee benefit plans which the Company provides or may establish for thebenefit of its senior executives (for example, group life, disability, medical,dental and other insurance, retirement, pension, profit-sharing and similarplans) (collectively, the “Fringe Benefits”). Your eligibility to participate in the Fringe Benefits and receivebenefits thereunder will be subject to the plan documents governing such FringeBenefits.  Nothing contained herein willrequire the Company to establish or maintain any Fringe Benefits.

 

3.6.    Reimbursement of CertainExpenses.  You shallbe reimbursed for reasonable and necessary business expenses incurred by youwhile you are employed by the Company, which are directly related to thefurtherance of the Company’s business.  You must submit any request forreimbursement no later than ninety (90) days following the date that suchbusiness expense is incurred in accordance with the Company’s reimbursementpolicy regarding same, and business expenses must be substantiated byappropriate receipts and documentation.  If a business expensereimbursement is not exempt from Section 409A of the Code, anyreimbursement in one calendar year shall not affect the amount thatmay be reimbursed in any other calendar year and a reimbursement (orright thereto) may not be exchanged or liquidated for another benefit orpayment.  Any business expense reimbursements subject to Section 409Aof the Code shall be made no later than the end of the calendar year followingthe calendar year in which you incur such business expense.

 

4.     Termination.  This Agreement shall terminate upon theoccurrence of any of the following:

 

4.1.    Expiration of the AgreementTerm.  This Agreement shall terminateat the expiration of the Agreement Termas set forth in Section 2.

 

4.2.    Termination for Cause.  This Agreement shall terminate, at theelection of the Company, for Cause upon written notice by the Company toyou.  For the purposes of this Section, “Cause”for termination shall be limited to the following:

 

a)     Your conviction of a felony;or

 

b)    Your commission of fraud, ormisconduct that results in material and demonstrable damage to the business orreputation of the Company; or

 

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c)     Your willful and continuedfailure to perform your duties hereunder (other than such failure resultingfrom your incapacity due to Disability, as defined herein) within 10 businessdays after the Company delivers a written demand for performance to you thatspecifically identifies the actions to be performed.

 

4.3.    Termination by the CompanyWithout Cause or by You for Good Reason.  This Agreement shall terminate at theelection of the Company, without Cause, at any time upon 30 days prior writtennotice by the Company to you or by you for Good Reason (as defined herein).

 

4.4.    Death or Disability.  This Agreement shall terminate upon your deathor disability. If you shall be disabled so as to be unable to perform theessential functions of your position under this Agreement with or withoutreasonable accommodation, the Board may remove you from any responsibilitiesand/or reassign you to another position with the Company during the period ofsuch disability, and such reassignment shall not trigger a Good Reasontermination as provided herein. Notwithstanding any such removal or reassignment, you shall continue toreceive your Base Salary (less any disability pay or sick pay benefits to whichyou may be entitled under the Company’s policies) and benefits under thisAgreement (except to the extent that you may be ineligible for one or more suchbenefits under applicable plan terms) for a period of three months, and youremployment may be terminated by the Company at any time thereafter.  Nothing in this Section shall beconstrued to waive your rights, if any, under existing law including, withoutlimitation, the Family and Medical Leave Act of 1993, 29 U.S.C. §2601 *et seq*. and the Americans withDisabilities Act, 42 U.S.C. §12101 *et seq.*

 

Notwithstanding theforegoing, if and only to the extent that your disability is a trigger for thepayment of deferred compensation, as defined in Section 409A of the Code, “disability”shall have the meaning set forth in Section 409A(a)(2)(C) of theCode.

 

4.5.    Voluntary Termination by You.  You may terminate this Agreement at yourelection upon not less than 30 days prior written notice to the Company.

 

4.6.    Definition of Good Reason.  As used in this Agreement, ‘Good Reason’means that you have complied with the ‘Good Reason Process’ (hereinafterdefined) following the occurrence of any of the following events:  (i) a material diminution in yourresponsibilities, authority or duties; (ii) a material diminution in yourBase Salary; (iii) a material change in the geographic location at whichyou provide services to the Company; or (iv) the material breach of thisAgreement by the Company.  ‘GoodReason Process’ shall mean that (i) you reasonably determine in goodfaith that a ‘Good Reason’ condition has occurred; (ii) you notify theCompany in writing of the occurrence of the Good Reason condition within 60days of the occurrence of such condition; (iii) you cooperate in goodfaith with the Company’s efforts, for a period not less than 30 days followingsuch notice (the ‘Cure Period’), to remedy the condition; (iv) notwithstanding

 

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suchefforts, the Good Reason condition continues to exist; and (v) youterminate your employment within 60 days after the end of the Cure Period.  If the Company cures the Good Reasoncondition during the Cure Period, Good Reason shall be deemed not to haveoccurred.

 

5.     Effect of Termination.

 

5.1.    Termination for Cause,Death, Disability or Voluntary Resignation.  In the event (i) you are terminated forCause; (ii) you are terminated for death or Disability; or (iii) youvoluntarily resign (other than for Good Reason), unless otherwise specificallyprovided herein, you, or your estate, shall be eligible only to receive (i) theportion of your Base Salary as has accrued prior to the effectiveness of suchtermination and has not yet been paid, (ii) an amount equal to the valueof your accrued unused vacation days, and (iii) reimbursement for expensesproperly incurred by you on behalf of the Company prior to such termination ifsuch expenses are properly documented in accordance with Company policy andpractice and submitted for reimbursement within 30 days of the termination date(collectively, the “Accrued Obligations”). Such amounts will be paid promptly after termination in accordance withapplicable law but in no event more than 45 days after the date on which youremployment terminates.

 

5.2.    Termination Without Cause orResignation for Good Reason.  In the event that (i) you are terminatedwithout Cause; or (ii) you resign for Good Reason, then in addition to theAccrued Obligations, and contingent on your executing a complete release ofclaims against the Company, and provided you do not revoke the release (a fullyeffective release is hereafter, the “Release”) within thirty (30) days afterthe date of termination, you shall be entitled, in addition to the AccruedObligations, to receive continuation of your Base Salary in effect at the timeof termination for a period of twelve (12) months, commencing on the 37th day after the date on which your employmentterminates (provided the Release is effective prior to such date), payable inaccordance with the Company’s normal payroll practices, provided that the firstpayment will include all amounts which would have been paid in the 37 daysfollowing your termination of employment.

 

Inaddition to the foregoing, you shall be entitled to receive payment of COBRApremiums to maintain medical and dental benefits, if any, in effect at the timeof termination for the earlier of (x) 12 months following the terminationand (y) the date you become insured under a medical insurance planproviding similar benefits to that of the Company plan.

 

5.3.    Expiration of Agreement.  In the event the Agreement Term expires andthe Company elects not to extend the Agreement, it shall be considered atermination by the Company without Cause and, in addition to the AccruedObligations, you shall be entitled to the same benefits provided in Section 5.2herein, upon your execution of the Release; provided, that notwithstanding theforegoing, if you continue in the employment of the

 

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Companyafter the expiration of the Agreement Term, this Section 5.3 shall be ofno further force and effect.

 

5.4.    Additional Benefits uponTermination in Connection With a Change of Control.  In the event that your employment isterminated by the Company without Cause or by you for Good Reason (each asdefined herein) within 12 months immediately following or 6 months immediatelyprior to a Change of Control, then, in addition to the Accrued Obligations andthe benefits described in Section 5.2, you shall be entitled to receivefull vesting of all unvested equity, including but not limited to any optionsor restricted stock granted to you under the 2006 Stock Plan or any authorizedsuccessor stock plan, provided that the conditions to vesting other than thepassage of time have been satisfied.

 

5.5.    Excise Tax.  You agree that the payments and benefitshereunder, and under all other contracts, arrangements or programs that applyto you (the “Company Payments”), shall be reduced to an amount that is onedollar less than the amount that would trigger an excise tax under Section 4999of the Code, as determined in good faith by the Company’s independent publicaccountants, provided, however, that the reduction shall occuronly if the reduced Company Payments received by you (after taking into accountfurther reductions for applicable federal, state and local income, socialsecurity and other taxes) would be greater than the unreduced Company Paymentsto be received by you minus (i) the excise tax payable with respect tosuch Company Payments under Section 4999 of the Code; and (ii) allapplicable federal, state and local income, social security and other taxes onsuch Company Payments.  You and theCompany agree to cooperate in good faith with each other in connection with anyadministrative or judicial proceedings concerning the existence or amount ofgolden parachute penalties with respect to payments or benefits that youreceive. In the event that such payments are required to be reduced pursuant tothis Section, such payments shall be reduced in the following order:  (1) cash payments not subject to Section 409Aof the Code; (2) cash payments subject to Section 409A of the Code; (3) equity-basedpayments and acceleration; and (4) non-cash forms of benefits, and to theextent any payment is to be made over time (e.g., in installments, etc.), thenthe payments shall be reduced in reverse chronological order.

 

5.6.    “Change of Control”.  As used herein, a “Change of Control” shalloccur or be deemed to have occurred only upon any one or more of the followingevents:

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#### a)     any “person” (as such termis used in Sections 13(d) and 14(d)(2) of the Securities Exchange Actof 1934, as amended (the “Exchange Act”)) becomes a “beneficial owner” (as suchterm is defined in Rule 13d-3 promulgated under the Exchange Act) (otherthan the Company, any trustee or other fiduciary holding securities under anemployee benefit plan of the Company, or any corporation owned, directly orindirectly, by the stockholders of the Company, in substantially the sameproportions as their ownership of stock of the Company), directly orindirectly, of securities of the

 

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Company,representing fifty percent (50%) or more of the combined voting power of theCompany’s then outstanding securities; or

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#### b)    persons who, as of the CommencementDate, constituted the Company’s Board of Directors (the “Incumbent Board”)cease for any reason including, without limitation, as a result of a tenderoffer, proxy contest, merger, consolidation or similar transaction, to constituteat least a majority of the Board of Directors, provided that any personbecoming a director of the Company subsequent to the Commencement Date whoseelection was approved by at least a majority of the directors then comprisingthe Incumbent Board shall, for purposes of this Section, be considered a memberof the Incumbent Board; or

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#### c)     the consummation of a mergeror consolidation of the Company with any other corporation or other entity,other than (1) a merger or consolidation which would result in the votingsecurities of the Company outstanding immediately prior thereto continuing torepresent (either by remaining outstanding or by being converted into votingsecurities of the surviving entity) more than fifty percent (50%) of thecombined voting power of the voting securities of the Company or such survivingentity outstanding immediately after such merger or consolidation or (2) amerger or consolidation effected to implement a recapitalization of the Company(or similar transaction) in which no “person” (as hereinabove defined) acquiresmore than fifty percent (50%) of the combined voting power of the Company’sthen outstanding securities; or

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#### d)    the stockholders of theCompany approve a plan of complete liquidation of the Company or an agreementfor the sale or disposition by the Company of all or substantially all of theCompany’s assets.

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5.7.    Separation from Service.  Notwithstanding anything set forth inSections 4 and 5 of this Agreement, a termination of employment shall be deemednot to have occurred until such time as you incur a “separation from service”with the Company in accordance with Section 409A(a)(2)(A)(i) of theCode and the applicable provisions of Treasury Regulation Section 1.409A-1(h).

 

5.8.    Section 409A.  Anything in this Agreement to the contrarynotwithstanding, if at the time of your ‘separation from service,’ the Companydetermines that the you are a ‘specified employee’ within the meaning of Section 409A(a)(2)(B)(i) ofthe Code, then to the extent any payment or benefit that you become entitled tounder this Agreement on account of your separation from service would beconsidered deferred compensation subject to the 20 percent additional taximposed pursuant to Section 409A(a) of the Code as a result of theapplication of Section 409A(a)(2)(B)(i) of the Code, such paymentshall not be payable and such benefit shall not be provided until the date thatis the earlier of (A) six months and one day after your separation fromservice, or (B) your death.  If anysuch delayed cash payment is otherwise payable on an installment basis, thefirst

 

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payment shall include a catch-up payment covering amounts that wouldotherwise have been paid during the six-month period but for the application ofthis provision, and the balance of the installments shall be payable inaccordance with their original schedule. Solely for purposes of Section 409A of the Code, each installmentpayment described in Section 5 is considered a separate payment.

 

6.     Taxes.  All payments required to be made by theCompany to you under this Agreement shall be subject to the withholding of suchamounts for taxes and other payroll deductions as the Company may reasonablydetermine it should withhold pursuant to any applicable law or regulation.  To the extentapplicable, it is intended that this Agreement be exempt from, or comply with, the provisions of Section 409A ofthe Code, and this Agreement shall be construed and applied in a mannerconsistent with this intent.  In theevent that any severance payments or benefits hereunder are determined by theCompany to be in the nature of nonqualified deferred compensation payments, youand the Company hereby agree to take such actions as may be mutually agreed toensure that such payments or benefits comply with the applicable provisions of Section 409Aof the Code and the official guidance issued thereunder.  Notwithstanding the foregoing, theCompany does not guarantee the tax treatment or tax consequences associatedwith any payment or benefit arising under this Agreement.

 

7.     Noncompetition,Confidentiality and Inventions Obligations.  You agree to execute the enclosed EmployeeNoncompetition, Confidentiality and Inventions Agreement simultaneously withthe execution of this Agreement.

 

8.     Disclosure to FutureEmployers.  You willprovide, and the Company, in its discretion, may similarly provide, a copy ofthe covenants contained in the Employee Noncompetition, Confidentiality andInventions Agreement to any business or enterprise which you may, directly orindirectly, own, manage, operate, finance, join, control or in which you mayparticipate in the ownership, management, operation, financing, or control, orwith which you may be connected as an officer, director, employee, partner,principal, agent, representative, consultant or otherwise.

 

9.     Representations.  You hereby represent and warrant to theCompany that you understand this Agreement, that you enter into this Agreementvoluntarily and that your employment under this Agreement will not conflictwith any legal duty owed by you to any other party.

 

10.   General.

 

10.1.    Notices.  Whenever any notice is required hereunder, itshall be given in writing addressed as follows:

 

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| To  Company:       |   | Metabolix, Inc.

21  Erie Street

Cambridge,  MA 02139

Attention:  General  Counsel |
|--------------------|--------|-----------------------------------------------------------------------------------------------------|
|               |   |                                                                                                |
| To  the Executive: |   | Johan van Walsem

5 Orchard Drive

Acton, MA 01720                                                  |

 

Allnotices, requests, consents and other communications hereunder which arerequired to be provided, or which the sender elects to provide, in writing,will be addressed to the receiving party’s address set forth above or to suchother address as a party may designate by notice hereunder, and will be either (i) deliveredby hand, (ii) sent by overnight courier, or (iii) sent by registeredor certified mail, return receipt requested, postage prepaid.  All notices, requests, consents and othercommunications hereunder will be deemed to have been given either (i) ifby hand, at the time of the delivery thereof to the receiving party at theaddress of such party set forth above, (ii) if sent by overnight courier,on the next business day following the day such notice is delivered to thecourier service, or (iii) if sent by registered or certified mail, on the5th business day following the day such mailing ismade.

 

10.2.        Entire Agreement.  This Agreement, together with any StockOption Agreements executed by you and the Company (either prior to or inconjunction with this Agreement) and the Employee Noncompetition,Confidentiality and Inventions Agreement, embody the entire agreement andunderstanding between the parties hereto with respect to the subject matterhereof and supersedes all prior oral or written agreements and understandingsrelating to the subject matter hereof. No statement, representation, warranty, covenant or agreement of anykind not expressly set forth in this Agreement will affect, or be used tointerpret, change or restrict, the express terms and provisions of thisAgreement.

 

10.3.        Modifications and Amendments.  The terms and provisions of this Agreementmay be modified or amended only by written agreement executed by the partieshereto.

 

10.4.        Waivers and Consents.  The terms and provisions of this Agreementmay be waived, or consent for the departure therefrom granted, only by writtendocument executed by the party entitled to the benefits of such terms orprovisions.  No such waiver or consentwill be deemed to be or will constitute a waiver or consent with respect to anyother terms or provisions of this Agreement, whether or not similar.  Each such waiver or consent will be effectiveonly in the specific instance and for the purpose for which it was given, andwill not constitute a continuing waiver or consent.

 

10.5.        Assignment.  The Company shall cause its rights andobligations hereunder to be assumed by any person or entity that succeeds toall or substantially all of the

 

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Company’sbusiness or that aspect of the Company’s business in which you are principallyinvolved and may assign its rights and obligations hereunder to any Company affiliate.  You may not assign your rights andobligations under this Agreement without the prior written consent of theCompany and any such attempted assignment by you without the prior writtenconsent of the Company will be void; provided, however, in the event of yourdeath, your rights, compensation and benefits under this Agreement shall inureto the benefit of your estate, such that, for example, stock issuable to you,and awards and payments payable to you, shall be issued and paid to yourestate.

 

10.6.        Governing Law.  This Agreement and the rights and obligationsof the parties hereunder will be construed in accordance with and governed bythe law of Massachusetts, without giving effect to the conflict of lawprinciples thereof.

 

10.7.        Jury Waiver. You and theCompany agree to waive trial by jury in connection with any action arising fromor relating to this Agreement.

 

10.8.        Severability.  The parties intend this Agreement to beenforced as written.  However, if anyportion or provision of this Agreement is to any extent declared illegal orunenforceable by a duly authorized court having jurisdiction, then theremainder of this Agreement, or the application of such portion or provision incircumstances other than those as to which it is so declared illegal orunenforceable, will not be affected thereby, and each portion and provision ofthis Agreement will be valid and enforceable to the fullest extent permitted bylaw.

 

10.9.        Headings and Captions.  The headings and captions of the varioussubdivisions of this Agreement are for convenience of reference only and willin no way modify or affect the meaning or construction of any of the terms orprovisions hereof.

 

10.10.      Acknowledgments.  You recognize and agree that the enforcementof the Noncompetition, Nondisclosure and Inventions Agreement is necessary toensure the preservation, protection and continuity of the business, trade secretsand goodwill of the Company.  You agreethat, due to the proprietary nature of the Company’s business, the restrictionsset forth in the Noncompetition, Confidentiality and Inventions Agreement arereasonable as to time and scope.

 

10.11.      Counterparts.  This Agreement may be executed in two or morecounterparts, and by different parties hereto on separate counterparts, each ofwhich will be deemed an original, but all of which together will constitute oneand the same instrument.

 

10.12.      Conditions.  This Agreement is subject to and contingentupon the Company’s receipt of proof that you have appropriate authorization towork in the United States as required by U.S. laws and regulations, and uponsatisfactory completion of a background check.

 

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Ifthe foregoing accurately sets forth our agreement, please so indicate bysigning and returning to us the enclosed copy of this Agreement.

 
|                      |   | Very  truly yours, |
|---------------------------|--------|--------------------|
|                      |   |               |
|                      |   | METABOLIX,  INC.   |
|                      |   |               |
|                      |   |               |
|                      |   | By:                | /s/  Richard P. Eno |
|                      |   | Name:              | Richard  P. Eno |
|                      |   | Title:             | President &  CEO |
|                      |   |               |
| **Accepted  and Agreed:** |   |               |
|                      |   |               |
|                      |   |               |
| /s/  Johan van Walsem     |   | 07/09/2009         |   |
| Johan  van Walsem         |   | Date               |   |
|                           |        |                    |  |  |

 

 

**Enclosure:**

EmployeeNoncompetition, Confidentiality and Inventions Agreement

 

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