Exhibit
10.1


 





 


July 7, 2009


 


Johan van Walsem


5 Orchard Drive


Acton, MA 01720


 


Re:  Employment Agreement


 


Dear
Johan:


 


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


 


1.     Employment.


 


1.1.    General.  The Company will employ you, and you will be
employed by the Company, as Vice President of Strategy and Commercial
Development 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 other
and/or different services for the Company as may be assigned to you from time
to time.  You agree that if your
employment hereunder ends for any reason, you will tender to the Company your
resignation of all offices with the Company as of the date of your termination.


 


1.2.    Devotion to Duties.  While you are employed hereunder, you will
use your best efforts, skills and abilities to perform faithfully all duties
assigned to you pursuant to this Agreement and will devote your full business
time and energies to the business and affairs of the Company.  While you are employed hereunder, you will
not undertake any other employment from any person or entity without the prior
written consent of the Company.


 


2.     Term.  The Company hereby agrees to employ you, and
you hereby accept employment with the Company, upon the terms set forth in this
Agreement, for the period commencing on August 17, 2009 (or such other
date as the parties shall mutually agree) (the “Commencement Date”) and ending
on the first anniversary of the Commencement Date (such period is the “Initial
Term”), 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


 

















 


provided, however, that at
the end of such Initial Term and each anniversary date thereafter, the term of
this 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) year
extension period, as the case may be, the Company or you shall have given
written notice that it or you elects not to have the term extended.  The term of this Agreement as extended and
defined by this Section shall be referred to as the “Agreement Term.”


 


3.     Compensation.


 


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


 


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


 


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


 


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


 


3.4.    Vacation.  You will be entitled to paid vacation and
paid holidays, accrued and used in accordance with the Company’s policies as in
effect from time to time. All vacation days will be taken at times mutually
agreed 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 in
employee benefit plans which the Company provides or may establish for the
benefit of its senior executives (for example, group life, disability, medical,
dental and other insurance, retirement, pension, profit-sharing and similar
plans) (collectively, the “Fringe Benefits”). 
Your eligibility to participate in the Fringe Benefits and receive
benefits thereunder will be subject to the plan documents governing such Fringe
Benefits.  Nothing contained herein will
require the Company to establish or maintain any Fringe Benefits.


 


3.6.    Reimbursement of Certain
Expenses.  You shall
be reimbursed for reasonable and necessary business expenses incurred by you
while you are employed by the Company, which are directly related to the
furtherance of the Company’s business.  You must submit any request for
reimbursement no later than ninety (90) days following the date that such
business expense is incurred in accordance with the Company’s reimbursement
policy regarding same, and business expenses must be substantiated by
appropriate receipts and documentation.  If a business expense
reimbursement is not exempt from Section 409A of the Code, any
reimbursement in one calendar year shall not affect the amount that
may be reimbursed in any other calendar year and a reimbursement (or
right thereto) may not be exchanged or liquidated for another benefit or
payment.  Any business expense reimbursements subject to Section 409A
of the Code shall be made no later than the end of the calendar year following
the calendar year in which you incur such business expense.


 


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


 


4.1.    Expiration of the Agreement
Term.  This Agreement shall terminate
at the expiration of the Agreement Term
as set forth in Section 2.


 


4.2.    Termination for Cause.  This Agreement shall terminate, at the
election of the Company, for Cause upon written notice by the Company to
you.  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, or
misconduct that results in material and demonstrable damage to the business or
reputation of the Company; or


 


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c)     Your willful and continued
failure to perform your duties hereunder (other than such failure resulting
from your incapacity due to Disability, as defined herein) within 10 business
days after the Company delivers a written demand for performance to you that
specifically identifies the actions to be performed.


 


4.3.    Termination by the Company
Without Cause or by You for Good Reason.  This Agreement shall terminate at the
election of the Company, without Cause, at any time upon 30 days prior written
notice 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 death
or disability. If you shall be disabled so as to be unable to perform the
essential functions of your position under this Agreement with or without
reasonable accommodation, the Board may remove you from any responsibilities
and/or reassign you to another position with the Company during the period of
such disability, and such reassignment shall not trigger a Good Reason
termination as provided herein. 
Notwithstanding any such removal or reassignment, you shall continue to
receive your Base Salary (less any disability pay or sick pay benefits to which
you may be entitled under the Company’s policies) and benefits under this
Agreement (except to the extent that you may be ineligible for one or more such
benefits under applicable plan terms) for a period of three months, and your
employment may be terminated by the Company at any time thereafter.  Nothing in this Section shall be
construed to waive your rights, if any, under existing law including, without
limitation, the Family and Medical Leave Act of 1993, 29 U.S.C. §2601 et seq. and the Americans with
Disabilities Act, 42 U.S.C. §12101 et seq.


 


Notwithstanding the
foregoing, if and only to the extent that your disability is a trigger for the
payment 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 the
Code.


 


4.5.    Voluntary Termination by You.  You may terminate this Agreement at your
election 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’ (hereinafter
defined) following the occurrence of any of the following events:  (i) a material diminution in your
responsibilities, authority or duties; (ii) a material diminution in your
Base Salary; (iii) a material change in the geographic location at which
you provide services to the Company; or (iv) the material breach of this
Agreement by the Company.  ‘Good
Reason Process’ shall mean that (i) you reasonably determine in good
faith that a ‘Good Reason’ condition has occurred; (ii) you notify the
Company in writing of the occurrence of the Good Reason condition within 60
days of the occurrence of such condition; (iii) you cooperate in good
faith with the Company’s efforts, for a period not less than 30 days following
such notice (the ‘Cure Period’), to remedy the condition; (iv) notwithstanding


 


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such
efforts, the Good Reason condition continues to exist; and (v) you
terminate your employment within 60 days after the end of the Cure Period.  If the Company cures the Good Reason
condition during the Cure Period, Good Reason shall be deemed not to have
occurred.


 


5.     Effect of Termination.


 


5.1.    Termination for Cause,
Death, Disability or Voluntary Resignation.  In the event (i) you are terminated for
Cause; (ii) you are terminated for death or Disability; or (iii) you
voluntarily resign (other than for Good Reason), unless otherwise specifically
provided herein, you, or your estate, shall be eligible only to receive (i) the
portion of your Base Salary as has accrued prior to the effectiveness of such
termination and has not yet been paid, (ii) an amount equal to the value
of your accrued unused vacation days, and (iii) reimbursement for expenses
properly incurred by you on behalf of the Company prior to such termination if
such expenses are properly documented in accordance with Company policy and
practice 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 with
applicable law but in no event more than 45 days after the date on which your
employment terminates.


 


5.2.    Termination Without Cause or
Resignation for Good Reason.  In the event that (i) you are terminated
without Cause; or (ii) you resign for Good Reason, then in addition to the
Accrued Obligations, and contingent on your executing a complete release of
claims against the Company, and provided you do not revoke the release (a fully
effective release is hereafter, the “Release”) within thirty (30) days after
the date of termination, you shall be entitled, in addition to the Accrued
Obligations, to receive continuation of your Base Salary in effect at the time
of termination for a period of twelve (12) months, commencing on the 37th day after the date on which your employment
terminates (provided the Release is effective prior to such date), payable in
accordance with the Company’s normal payroll practices, provided that the first
payment will include all amounts which would have been paid in the 37 days
following your termination of employment.


 


In
addition to the foregoing, you shall be entitled to receive payment of COBRA
premiums to maintain medical and dental benefits, if any, in effect at the time
of termination for the earlier of (x) 12 months following the termination
and (y) the date you become insured under a medical insurance plan
providing similar benefits to that of the Company plan.


 


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


 


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Company
after the expiration of the Agreement Term, this Section 5.3 shall be of
no further force and effect.


 


5.4.    Additional Benefits upon
Termination in Connection With a Change of Control.  In the event that your employment is
terminated by the Company without Cause or by you for Good Reason (each as
defined herein) within 12 months immediately following or 6 months immediately
prior to a Change of Control, then, in addition to the Accrued Obligations and
the benefits described in Section 5.2, you shall be entitled to receive
full vesting of all unvested equity, including but not limited to any options
or restricted stock granted to you under the 2006 Stock Plan or any authorized
successor stock plan, provided that the conditions to vesting other than the
passage of time have been satisfied.


 


5.5.    Excise Tax.  You agree that the payments and benefits
hereunder, and under all other contracts, arrangements or programs that apply
to you (the “Company Payments”), shall be reduced to an amount that is one
dollar less than the amount that would trigger an excise tax under Section 4999
of the Code, as determined in good faith by the Company’s independent public
accountants, provided, however, that the reduction shall occur
only if the reduced Company Payments received by you (after taking into account
further reductions for applicable federal, state and local income, social
security and other taxes) would be greater than the unreduced Company Payments
to be received by you minus (i) the excise tax payable with respect to
such Company Payments under Section 4999 of the Code; and (ii) all
applicable federal, state and local income, social security and other taxes on
such Company Payments.  You and the
Company agree to cooperate in good faith with each other in connection with any
administrative or judicial proceedings concerning the existence or amount of
golden parachute penalties with respect to payments or benefits that you
receive. In the event that such payments are required to be reduced pursuant to
this Section, such payments shall be reduced in the following order:  (1) cash payments not subject to Section 409A
of the Code; (2) cash payments subject to Section 409A of the Code; (3) equity-based
payments and acceleration; and (4) non-cash forms of benefits, and to the
extent any payment is to be made over time (e.g., in installments, etc.), then
the payments shall be reduced in reverse chronological order.


 


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


 


a)     any “person” (as such term
is used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act
of 1934, as amended (the “Exchange Act”)) becomes a “beneficial owner” (as such
term is defined in Rule 13d-3 promulgated under the Exchange Act) (other
than the Company, any trustee or other fiduciary holding securities under an
employee benefit plan of the Company, or any corporation owned, directly or
indirectly, by the stockholders of the Company, in substantially the same
proportions as their ownership of stock of the Company), directly or
indirectly, of securities of the


 


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


 


b)    persons who, as of the Commencement
Date, constituted the Company’s Board of Directors (the “Incumbent Board”)
cease for any reason including, without limitation, as a result of a tender
offer, proxy contest, merger, consolidation or similar transaction, to constitute
at least a majority of the Board of Directors, provided that any person
becoming a director of the Company subsequent to the Commencement Date whose
election was approved by at least a majority of the directors then comprising
the Incumbent Board shall, for purposes of this Section, be considered a member
of the Incumbent Board; or


 


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


 


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


 


5.7.    Separation from Service.  Notwithstanding anything set forth in
Sections 4 and 5 of this Agreement, a termination of employment shall be deemed
not 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 the
Code and the applicable provisions of Treasury Regulation Section 1.409A-1(h).


 


5.8.    Section 409A.  Anything in this Agreement to the contrary
notwithstanding, if at the time of your ‘separation from service,’ the Company
determines that the you are a ‘specified employee’ within the meaning of Section 409A(a)(2)(B)(i) of
the Code, then to the extent any payment or benefit that you become entitled to
under this Agreement on account of your separation from service would be
considered deferred compensation subject to the 20 percent additional tax
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, such payment
shall not be payable and such benefit shall not be provided until the date that
is the earlier of (A) six months and one day after your separation from
service, or (B) your death.  If any
such delayed cash payment is otherwise payable on an installment basis, the
first


 


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


 


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


 


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


 


8.     Disclosure to Future
Employers.  You will
provide, and the Company, in its discretion, may similarly provide, a copy of
the covenants contained in the Employee Noncompetition, Confidentiality and
Inventions Agreement to any business or enterprise which you may, directly or
indirectly, own, manage, operate, finance, join, control or in which you may
participate in the ownership, management, operation, financing, or control, or
with 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 the
Company that you understand this Agreement, that you enter into this Agreement
voluntarily and that your employment under this Agreement will not conflict
with any legal duty owed by you to any other party.


 


10.   General.


 


10.1.    Notices.  Whenever any notice is required hereunder, it
shall 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

  



 


All
notices, requests, consents and other communications hereunder which are
required 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 such
other address as a party may designate by notice hereunder, and will be either (i) delivered
by hand, (ii) sent by overnight courier, or (iii) sent by registered
or certified mail, return receipt requested, postage prepaid.  All notices, requests, consents and other
communications hereunder will be deemed to have been given either (i) if
by hand, at the time of the delivery thereof to the receiving party at the
address 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 the
courier service, or (iii) if sent by registered or certified mail, on the
5th business day following the day such mailing is
made.


 


10.2.        Entire Agreement.  This Agreement, together with any Stock
Option Agreements executed by you and the Company (either prior to or in
conjunction with this Agreement) and the Employee Noncompetition,
Confidentiality and Inventions Agreement, embody the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior oral or written agreements and understandings
relating to the subject matter hereof. 
No statement, representation, warranty, covenant or agreement of any
kind not expressly set forth in this Agreement will affect, or be used to
interpret, change or restrict, the express terms and provisions of this
Agreement.


 


10.3.        Modifications and Amendments.  The terms and provisions of this Agreement
may be modified or amended only by written agreement executed by the parties
hereto.


 


10.4.        Waivers and Consents.  The terms and provisions of this Agreement
may be waived, or consent for the departure therefrom granted, only by written
document executed by the party entitled to the benefits of such terms or
provisions.  No such waiver or consent
will be deemed to be or will constitute a waiver or consent with respect to any
other terms or provisions of this Agreement, whether or not similar.  Each such waiver or consent will be effective
only in the specific instance and for the purpose for which it was given, and
will not constitute a continuing waiver or consent.


 


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


 


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Company’s
business or that aspect of the Company’s business in which you are principally
involved and may assign its rights and obligations hereunder to any Company affiliate.  You may not assign your rights and
obligations under this Agreement without the prior written consent of the
Company and any such attempted assignment by you without the prior written
consent of the Company will be void; provided, however, in the event of your
death, your rights, compensation and benefits under this Agreement shall inure
to 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 your
estate.


 


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


 


10.7.        Jury Waiver. You and the
Company agree to waive trial by jury in connection with any action arising from
or relating to this Agreement.


 


10.8.        Severability.  The parties intend this Agreement to be
enforced as written.  However, if any
portion or provision of this Agreement is to any extent declared illegal or
unenforceable by a duly authorized court having jurisdiction, then the
remainder of this Agreement, or the application of such portion or provision in
circumstances other than those as to which it is so declared illegal or
unenforceable, will not be affected thereby, and each portion and provision of
this Agreement will be valid and enforceable to the fullest extent permitted by
law.


 


10.9.        Headings and Captions.  The headings and captions of the various
subdivisions of this Agreement are for convenience of reference only and will
in no way modify or affect the meaning or construction of any of the terms or
provisions hereof.


 


10.10.      Acknowledgments.  You recognize and agree that the enforcement
of the Noncompetition, Nondisclosure and Inventions Agreement is necessary to
ensure the preservation, protection and continuity of the business, trade secrets
and goodwill of the Company.  You agree
that, due to the proprietary nature of the Company’s business, the restrictions
set forth in the Noncompetition, Confidentiality and Inventions Agreement are
reasonable as to time and scope.


 


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


 


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


 


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If
the foregoing accurately sets forth our agreement, please so indicate by
signing 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:


Employee
Noncompetition, Confidentiality and Inventions Agreement


 


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