Exhibit 10.1


 


SEPARATION OF EMPLOYMENT AGREEMENT AND
GENERAL RELEASE


 


THIS SEPARATION OF EMPLOYMENT AGREEMENT AND GENERAL RELEASE  (this “Agreement”), is entered into by
and between Redpoint Bio Corporation (the “Company”) and Robert Bryant (“Employee”).


 


BACKGROUND


 


WHEREAS,
Employee currently serves as the Vice President of Discovery Research of the
Company pursuant to the terms and conditions set forth in an Offer Letter
between the Company and Employee, dated March 15, 2004 (the “Offer
Letter”);


 


WHEREAS,
effective as of January 16, 2009 (the “Separation Date”), Employee
will cease to serve as the Vice President of Discovery Research of the Company;
and


 


WHEREAS, in connection with the
termination of Employee’s employment with the Company, Employee and the Company
desire to evidence the terms of certain agreements that have been reached
between Employee and the Company regarding equity and other compensation and
payments, on the terms and conditions set forth in this Agreement.


 


NOW, THEREFORE, in consideration of the mutual promises set forth in
this Agreement and of other good and valuable consideration the sufficiency of
which Employee acknowledges, and intending to be legally bound hereby, Employee
and the Company agree as follows:


 


SEVERANCE


 


1.             Severance.  Subject in all respects to the
terms of this Agreement and Employee’s execution and non-revocation of this
Agreement (See Section 7 below), the Company will provide Employee with
the severance payment and benefits set forth below.


 


1.1           The Company will pay Employee an amount equal
to ten (10) weeks of Employee’s base salary at the rate in effect
immediately prior to the Separation Date, less applicable tax withholding, (the
“Severance Payment”) which will be paid in equal installments in accordance with
the Company’s normal payroll practices, beginning within thirty (30) days
following the Separation Date.


 


1.2           The
Company will pay Employee the compensation described in the Consulting
Agreement, which is attached hereto as Exhibit A (the “Consulting Agreement”),
for his consulting services following the Separation Date.  Employee and the Company reasonably
anticipate that as of the Separation Date the level of bona fide services
provided by Employee to the Company will be reduced permanently to a level less
than or equal to 20% of average level of services performed by Employee while
employed by the Company during the 36-month period immediately preceding the
Separation Date such that Employee will be considered to have had a “separation
from service” (within the meaning of such term under section 409A of the
Internal Revenue Code of 1986, as amended (the “Code”)), subject to the terms
and conditions of the Consulting Agreement entered into by Employee and the
Company effective as of the Separation Date.


 


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1.3           The
Company shall provide Employee with continued health, dental and vision
coverage at the level in effect as of the Separation Date (or generally
comparable coverage) for Employee and, where applicable, Employee’s spouse and
dependents, on the same terms as such coverage is available to employees of the
Company generally, at the same premium rates and cost sharing as may be charged
from time to time for employees of the Company generally, as if Employee had
continued in employment until the end of the ten (10)-week period following the
Separation Date.  The COBRA health care
continuation coverage period under section 4980B of the Code or any replacement
or successor provision of United States tax law, shall run concurrently with
the period of continued coverage following the Separation Date.


 


1.4           The Compensation Committee of the Board of
Directors of the Company (the “Committee”) has approved by resolution an
extended period of time during which Employee may exercise outstanding stock
options held by Employee that are exercisable as of the Separation Date (such
stock options, the “Vested Stock Options”).  In accordance therewith, Employee may
exercise the Vested Stock Options at any time during the six (6)-month period
following the Separation Date, so that Employee may exercise the Vested Stock
Options through and including July 16, 2009 (the “Option Expiration
Date”).  If Employee fails to
exercise the Vested Stock Options on or before the Option Expiration Date, the
Vested Stock Options shall terminate and Employee shall not have any right to
exercise any portion of the Vested Stock Options after the Option Expiration
Date.  Any stock options held by Employee
that are not exercisable as of the Separation Date shall be forfeited as of the
Separation Date and Employee shall have no further rights with respect thereto.


 


Employee hereby acknowledges and agrees that the
Severance Payment and other benefits described in this Section 1 are being
provided to Employee as consideration for Employee’s execution and
non-revocation of, and in reliance upon Employee’s representations in this
Agreement.  Employee further acknowledges
and agrees that if Employee does not execute or executes and revokes this
Agreement, Employee would not otherwise be entitled to the Severance Payment
and other benefits described in this Section 1 or any other payment, and
such Severance Payment and other benefits are sufficient consideration for
Employee’s execution and non-revocation of this Agreement.


 


AGREEMENTS OF EMPLOYEE


 


2.             Acknowledgements.  Employee agrees and represents that the
following are true and correct:


 


2.1           Employee’s employment with the Company
permanently ended on the Separation Date, and the Company has no future obligation
to re-employ Employee, other than engaging Employee as a consultant pursuant to
the Consulting Agreement.


 


2.2           The Company will pay to Employee all amounts
due from the Company through the Separation Date including but not limited to
the following: (a) all wages earned, (b) payment for all accrued but
unused paid vacation time as recorded in accordance with the Company’s vacation
policy, and (c) reimbursement for all reasonable and necessary business
travel and entertainment expenses incurred on behalf of the Company through the
Separation Date.  No 


 


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other amounts are due to
Employee from the Company, except under this Agreement and only if this
Agreement becomes effective and enforceable.


 


2.3           Employee has returned to the Company all
items of property provided by the Company for Employee’s use during employment
with the Company.


 


2.4           Employee has returned to the Company all
documents and materials (in electronic, paper or other form) created or received
by Employee in the course of employment with the Company, except Employee’s
personal copies of documents evidencing (a) Employee’s hire, compensation
rate and payments, benefits, (b) stock options, restricted stock, and
documents received as a stockholder and (c) the Offer Letter.


 


2.5           Employee hereby acknowledges and agrees that
Employee previously entered into an Agreement Regarding Confidentiality and
Inventions, dated April 6, 2004, (the “Confidentiality Agreement”).  Even if Employee did not sign this Agreement,
Employee would still have continuing obligations under the Confidentiality
Agreement.


 


3.             General Waiver & Release.  Except as described in
Sections 3.3 and 3.4 below, Employee waives and releases any and all claims,
whether or not now known to Employee, against the Company, its parent,
subsidiary and affiliated companies, and all of their past and present
officers, directors, employees, agents and assigns (collectively, “Releasees”),
arising from or relating to any and all acts, events and omissions occurring
prior to the date Employee signs this Agreement.


 


3.1           Included Claims.  The
claims being waived and released include, without limitation:


 


(a)           any and all claims arising from or relating
to Employee’s recruitment, hire, employment and termination of employment with
the Company;


 


(b)           any and all claims of wrongful discharge,
emotional distress, defamation, misrepresentation, fraud, detrimental reliance,
breach of contractual obligations, promissory estoppel, negligence, assault and
battery, violation of public policy;


 


(c)           any and all claims of unlawful
discrimination, harassment and retaliation under applicable federal, state and
local laws and regulations;


 


(d)           any and all claims of violation of any
federal, state and local law relating to recruitment, hiring, terms and
conditions of employment, and termination of employment;


 


(e)           any and all claims for monetary damages and
any other form of personal relief; and


 


(f)            any and all claims under the federal Age
Discrimination in Employment Act, as amended (“ADEA”).


 


3.2           Unknown Claims.  In
waiving and releasing any and all claims against the Releasees, whether or not now known to Employee, Employee understands
that this means that, 


 


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if Employee later discovers
facts different from or in addition to those facts currently known by Employee,
or believed by Employee to be true, the waivers and releases of this Agreement
will remain effective in all respects — despite such different or additional facts
and Employee’s later discovery of such facts, even if Employee would not have
agreed to this Agreement if Employee had prior knowledge of such facts.


 


3.3           Exceptions.  The only claims that are not
being waived and released by Employee under this Section 3 are claims
Employee may have for:


 


(a)           unemployment, state disability and/or paid
family leave insurance benefits pursuant to the terms of applicable state law;


 


(b)           continuation of existing participation in
Company-sponsored group health benefit plans, at Employee’s full expense, under
the federal law known as “COBRA” and/or under an applicable state
counterpart law;


 


(c)           any benefit entitlements that are vested as
of the Separation Date pursuant to the terms of a Company-sponsored benefit
plan governed by the federal law known as “ERISA;”


 


(d)           vested shares of common stock and/or vested
option shares pursuant to the written terms and conditions of Employee’s
existing stock and stock option grants and agreements, existing as of the
Separation Date;


 


(e)           violation of any federal, state or local
statutory and/or public policy right or entitlement that, by applicable law, is
not waivable; and


 


(f)            any wrongful act or omission occurring after
the date Employee signs this Agreement.


 


3.4           Government Agency Claims Exception. 
Nothing in this Section 3, or elsewhere in this Agreement, prevents
or prohibits Employee from filing a claim with a government agency, such as the
U.S. Equal Employment Opportunity Commission, that is responsible for enforcing
a law on behalf of the government. 
However, Employee understands that, because Employee is waiving and
releasing all claims “for monetary damages and any other form of personal
relief” (per Section 3.1(e) above), Employee may only seek and
receive non-personal forms of relief through any such claim.


 


4.             Confidentiality of this Agreement.  Employee shall not disclose to
others the fact or terms of this Agreement, except Employee
may disclose such information to Employee’s spouse or domestic/civil union
partner and to Employee’s attorney or accountant (in order for such individuals
to render professional services to Employee), so long as such individuals agree
to keep such information confidential. 
Nothing in this Section 4, or elsewhere in this Agreement, is
intended to prevent or prohibit Employee from (a) providing information
regarding Employee’s former employment relationship with the Company, as may be
required by law or legal process, or (b) cooperating, participating or
assisting in any government entity investigation or proceeding.


 


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AGREEMENTS OF THE COMPANY & EMPLOYEE


 


5.             Mutual Non-Disparagement.  Employee shall not disparage
the Company, its subsidiaries and parents, and their respective directors,
investors, employees, and agents, and its and their respective successors and
assigns, heirs, executors, and administrators, or make any public statement
reflecting negatively on the Company, its subsidiaries and parents, and their
respective officers, directors, investors, employees, and agents, and its and
their respective successors and assigns, heirs, executors, and administrators,
to third parties including, but not limited to, any matters relating to the
operation or management of the Company, irrespective of the truthfulness or
falsity of such statement, except as may otherwise be required by applicable
law or compelled by process of law.  The
Company shall not disparage Employee or make any public statement reflecting
negatively on Employee to third parties, irrespective of the truthfulness or
falsity of such statement, except as may otherwise be required by applicable
law or compelled by process of law.


 


6.             No Admission.  Nothing about the fact or content of this
Agreement shall be considered to be or treated by Employee or the Company as an
admission of any wrongdoing, liability or violation of law by Employee or by
any Releasee.


 


7.             Consideration & Revocation Periods; Effective Date. 
Employee has been given twenty-one (21) calendar days after the date
Employee received this Agreement (“21-day Consideration Period”) within
which to review and consider this Agreement, to discuss the Agreement with an
attorney of Employee’s own choosing, and to decide whether or not to sign this
Agreement.  The Company hereby advises
Employee to consult with an attorney of Employee’s own choosing during this
21-day Consideration Period.


 


7.1           In addition, for the period of seven (7) calendar
days after the date Employee signs this Agreement (“7-day Revocation Period”),
Employee may revoke it by delivering written notice of revocation to the
Company by hand-delivery or by facsimile or e-mail transmission (and retaining
proof of successful transmission) using the street, facsimile or e-mail address
for the Company stated in Section 7 below.


 


7.2           Because of this 7-day Revocation Period, this
Agreement will not become effective and enforceable until the eighth calendar
day after the date Employee signed it, provided that Employee has delivered
Employee’s signed Agreement to the Company, and Employee did not revoke the
Agreement per Section 7.1 above (“Effective Date”).


 


8.             Delivery to the Company.  Employee should return this
Agreement, signed by Employee (and any notice of revocation, if applicable per Section 7
above) to:


 


Redpoint Bio Corporation


Attn: Chief Executive Officer


7 Graphics Drive


Ewing, New Jersey 08628


 


9.             Judicial Interpretation/Modification; Severability.  In
the event that, any one or more provisions (or portion thereof) of this
Agreement is held to be invalid, unlawful or unenforceable 


 


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for any reason, the invalid,
unlawful or unenforceable provision (or portion thereof) shall be construed or
modified so as to provide Releasees with the maximum protection that is valid,
lawful and enforceable, consistent with the intent of the Company and Employee
in entering into this Agreement.  If such
provision (or portion thereof) cannot be construed or modified so as to be
valid, lawful and enforceable, that provision (or portion thereof) shall be
construed as narrowly as possible and shall be severed from the remainder of
this Agreement (or provision), and the remainder shall remain in effect and be
construed as broadly as possible, as if such invalid, unlawful or unenforceable
provision (or portion thereof) had never been contained in this Agreement.


 


10.           Changes to Agreement.  No changes to this Agreement can be effective
except by another written agreement
signed by Employee and by the Company’s Chief Executive Officer.


 


11.           Complete Agreement.  Except for the agreements and benefit plans
noted in Sections 2.4 and 3.3 above, and any promissory note(s) or other
debt obligation(s) of Employee in favor of the Company, as of the
Effective Date, this Agreement cancels, supersedes and replaces any and all
prior agreements (written, oral or implied-in-fact or in-law) between Employee
and the Company regarding all of the subjects covered by this Agreement.  This Agreement is the full, complete and
exclusive agreement between Employee and the Company regarding all of the
subjects covered by this Agreement, and neither Employee nor the Company is
relying on any representation or promise that is not expressly stated in this
Agreement.


 


12.           Section 409A of the Code.


 


12.1         This Agreement is
intended to comply with the requirements of section 409A of the Code, and
specifically, with the separation pay exemption and short-term deferral
exemption of section 409A of the Code, and shall in all respects be
administered in accordance with section 409A of the Code.  If any payment or benefit hereunder cannot be
provided or made at the time specified herein without incurring sanctions on
Employee under section 409A of the Code, then such payment or benefit shall be
provided in full at the earliest time thereafter when such sanctions will not
be imposed.  For purposes of section 409A
of the Code, all payments to be made upon a termination of employment under
this Agreement may only be made upon a “separation from service” under section
409A of the Code, each payment made under this Agreement shall be treated as a
separate payment, the right to a series of installment payments under this
Agreement is to be treated as a right to a series of separate payments, and if
a payment is not made by the designated payment date under this Agreement, the
payment shall be made by December 31 of the calendar year in which the
designated date occurs.  To the extent
that any provision of the Agreement would cause a conflict with the
requirements of section 409A of the Code, or would cause the administration of
the Agreement to fail to satisfy the requirements of section 409A, such
provision shall be deemed null and void to the extent permitted by applicable
law.  In no event shall Employee,
directly or indirectly, designate the calendar year of payment.


 


12.2         All reimbursements
provided under this Agreement shall be made or provided in accordance with the
requirements of section 409A of the Code, including, where applicable, the
requirement that (a) any reimbursement shall be for expenses incurred
during Employee’s lifetime (or during a shorter period of time specified in
this Agreement), (b) the amount of expenses eligible for reimbursement
during a calendar year may not affect the expenses eligible 


 


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for reimbursement in any other calendar year, (c) the
reimbursement of an eligible expense will be made on or before the last day of
the calendar year following the year in which the expense is incurred and (d) the
right to reimbursement is not subject to liquidation or exchange for another
benefit.


 


IN WITNESS WHEREOF, and
intending to be legally bound hereby, Employee and the Company hereby execute
the foregoing Separation of Employment Agreement and General Release as of the
dates set forth below.


 


 


	
   

  	
  REDPOINT
  BIO CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
  Dated:
  January 9, 2009

  	
  By

  	
    /s/ F.
  Raymond Salemme

  
	
   

  	
   

  	
  F. Raymond Salemme, Ph.D.

  
	
   

  	
   

  	
  President and Chief Executive Officer

  
	
   

  	
   

  	
  Redpoint Bio Corporation

  



 


I HAVE READ THIS AGREEMENT.  I
UNDERSTAND THAT I AM GIVING UP IMPORTANT RIGHTS PER SECTION 3 ABOVE.   I AM AWARE OF MY RIGHT TO CONSULT WITH AN
ATTORNEY OF MY OWN CHOOSING DURING THE 21-DAY CONSIDERATION PERIOD, AND THAT
THE COMPANY HAS ADVISED ME TO UNDERTAKE SUCH CONSULTATION BEFORE SIGNING THIS
AGREEMENT.  I SIGN THIS AGREEMENT FREELY
AND VOLUNTARILY, WITHOUT DURESS OR COERCION.


 


 


	
   

  	
  EMPLOYEE

  
	
   

  	
   

  
	
   

  	
   

  
	
  Dated: January 9, 2009

  	
    /s/ Robert Bryant

  
	
   

  	
  Robert Bryant

  



 


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