Exhibit 10.12


 


October 13, 2006


 


Alan L. Crane

25 Quidnic Road

Waban, MA  02468


Dear Alan:


As stated in your letter of August 22, 2006, your
resignation from the position of President of Momenta Pharmaceuticals, Inc.
(hereafter, “Momenta” or the “Company”) occurred on that date and your
resignation from the position of Chief Executive Officer for the Company became
effective September 12, 2006.  However,
you are and shall continue to serve as a member of the Company’s Board of
Directors in accordance with the Company’s By-Laws and you shall have all
rights, responsibilities and privileges (including insurance coverage and other
protections) associated therewith.  In
recognition of your many contributions to the Company, the Company will pay you
the severance benefits described in the “Description of Severance Benefits”
attached as Attachment A if you timely sign and return this letter agreement to
Lisa Carron Shmerling, V.P., Legal Affairs of the Company, by November 4, 2006.  By
signing and returning this letter agreement, you will be agreeing to the terms
and conditions set forth in the numbered paragraphs below, including the
release of claims set forth in paragraph 3. 
You are advised to consult with an attorney before signing this letter
agreement and the attachments hereto and you may take up to twenty-one (21)
days to do so.  If you sign this letter
agreement, you may change your mind and revoke your agreement during the seven
(7) day period after you have signed it by notifying Ms. Shmerling in writing.  If you do not so revoke, this letter
agreement will become a binding agreement between you and the Company upon the
expiration of the seven (7) day period.


If you choose not to sign and return this letter
agreement by November 4, 2006, or if you timely revoke your acceptance in
writing, you shall not receive any severance benefits from the Company.  You will, however, receive payment for any
wages and unused vacation time accrued through your Resignation Date, as defined
below.  Also, even if you decide not to
sign this letter agreement, you may elect to continue receiving group health
insurance pursuant to the federal “COBRA” law, 29 U.S.C. § 1161 et  seq.  All premium costs shall be paid by you on a
monthly basis for as long as, and to the extent that, you remain eligible for
COBRA continuation.  You should consult
the COBRA materials to be provided by the Company for details regarding these
benefits.  All other Company-provided
benefits will cease upon your Resignation Date.


If, after reviewing this letter agreement, you find
the terms and conditions are satisfactory to you, you should sign and return
this letter agreement to Ms. Shmerling by November 4, 2006.


The following numbered paragraphs set forth the terms
and conditions that will apply if you timely sign and return this letter
agreement and do not revoke it in writing within the seven (7) day period:


1.             Resignation Date
- Your effective date of resignation as an employee of the Company was
September 17, 2006 (the “Resignation Date”). 
As of the Resignation Date, all salary payments from the Company ceased
and any benefits you had exclusively by virtue of your status as an employee of
the Company under Company-provided benefit plans, programs, or practices
terminated, except as required by federal or state law, or as otherwise
described herein.



 
 






 



 


2.             Description of
Severance Benefits and Consulting Arrangement - The severance
benefits which will be provided to you if you timely sign, return, and do not
revoke this letter are described in the “Description of Severance Benefits”
attached as Attachment A.  In addition,
due to continuing business needs, you have agreed to provide the Company with
consulting services as set forth on Attachment B.


3.             Releases
- In consideration of the payment of the severance benefits as described on
Attachment A, which you acknowledge you would not otherwise be entitled to
receive, you hereby fully, forever, irrevocably and unconditionally release,
remise and discharge the Company, its officers, directors, stockholders, corporate
affiliates, subsidiaries, parent companies, agents and employees (each in their
individual and corporate capacities) (hereinafter, the “Released Parties”) from
any and all claims, charges, complaints, demands, actions, causes of action,
suits, rights, debts, sums of money, costs, accounts, reckonings, covenants,
contracts, agreements, promises, doings, omissions, damages, executions,
obligations, liabilities, and expenses (including attorneys’ fees and costs),
of every kind and nature that you ever had or now have against the Released
Parties, including, but not limited to, any and all claims arising out of or relating to
your employment with and/or separation from the Company, including, but not
limited to,  all employment discrimination claims
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Americans With
Disabilities Act of 1990, 42 U.S.C. § 12101 et  seq., the Age
Discrimination in Employment Act, 29 U.S.C. § 621 et  seq.,
and the Massachusetts Fair Employment Practices Act, M.G.L. c.151B, § 1 et seq., all as amended, all claims
arising out of the Fair Credit Reporting Act, 15 U.S.C. § 1681 et  seq.,
the Family and Medical Leave Act, 29 U.S.C. § 2601 et  seq.,
the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C.
§ 1001 et  seq., the Massachusetts Civil Rights Act, M.G.L. c.12,
§§ 11H and 11I, the Massachusetts Equal Rights Act, M.G.L. c.93,
§ 102 and M.G.L. c.214, § 1C, the Massachusetts Labor and Industries
Act, M.G.L. c.149, § 1 et  seq., the Massachusetts Privacy Act,
M.G.L. c.214, § 1B and the Massachusetts Maternity Leave Act, M.G.L.
c.149, § 105(d), all as amended, all common law claims including, but not
limited to, actions in defamation, intentional infliction of emotional
distress, misrepresentation, fraud, wrongful discharge and breach of contract,
all claims pursuant to your March 15, 2002 Employment Agreement, as amended,
all claims to any non-vested ownership interest in the Company, contractual or
otherwise, including, but not limited to, claims to stock or stock options
(other than non-statutory stock options granted to you in April 2004 that will
continue to vest in accordance with their terms), and any claim or damage
arising out of your employment with and/or separation from the Company (including
a claim for retaliation) under any common law theory or any federal, state or
local statute or ordinance not expressly referenced above; provided, however,
that nothing in this letter agreement prevents you from filing, cooperating
with, or participating in any proceeding before the Equal Employment
Opportunity Commission or a state fair employment practices agency (except that
you acknowledge that you may not be able to recover any monetary benefits in
connection with any such claim, charge or proceeding); provided, further,
that nothing in this letter agreement prevents you from bringing a claim for
indemnification pursuant to the Company’s directors and officers insurance
policies as they exist from time to time or pursuant to the Third Amended and Restated
Certificate of Incorporation of Momenta Pharmaceuticals, Inc. or in any
material way alters any of your rights to insurance coverage or indemnification
relating to your employment with the Company or your continuing service as a
member of the Company’s Board of Directors.



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The Company hereby fully,
forever, irrevocably and unconditionally releases, remises and discharges you
from any and all claims, charges, complaints, demands, actions, causes of
action, suits, rights, debts, sums of money, costs, accounts, reckonings,
covenants, contracts, agreements, promises, doings, omissions, damages,
executions, obligations, liabilities and expenses (including attorney’s fees
and costs), of every kind and nature that the Company ever had or now has
against you as of the date of this letter agreement.


4.             Non-Disclosure and
Non-Competition and Non-Solicitation - You acknowledge and reaffirm your obligation to keep
confidential all non-public information concerning the Company which you
acquired during the course of your employment with the Company, as stated more
fully in the March 15, 2002 Employment Agreement, as amended, you executed at
the inception of your employment which remains in full force and effect.  You further acknowledge and reaffirm your
non-competition and non-solicitation obligations set forth therein that also
remain in full force and effect. 
Notwithstanding the foregoing, the March 15, 2002 Employment Agreement
is hereby amended such that the phrase, “Field of Interest,” shall mean the
field consisting of any
heparin-based therapeutic or glycan-based biogeneric (“biogeneric” is defined
as a protein drug where the drug in the form administered to patients is
intended to have the same label as the reference listed drug).


5.             Return of Company Property - You agree to return within
seven (7) days of the execution of this letter agreement all Company property
including, but not limited to, keys, files, records (and copies thereof),
equipment, (including, but not limited to, computer hardware, software and
printers, wireless handheld devices, cellular phones, pagers, etc.), Company
identification, Company vehicles and any other Company-owned property which is
in your possession or control (except materials relevant to the Sandoz
Collaborations, as defined in Exhibit B hereto, or materials related to your
service as a member of the Company’s Board of Directors).  You further agree to leave intact all
electronic Company documents, including those that you developed or help
develop during your employment.  You also
agree to cancel within seven (7) days, all accounts for your benefit, if any,
in the Company’s name, including but not limited to, credit cards, telephone
charge cards, cellular phone and/or pager accounts and computer accounts.


6.             Business
Expenses and Compensation - You acknowledge that you have been
reimbursed by the Company for all business expenses incurred in conjunction
with the performance of your employment and that no other reimbursements are
owed to you.  You further acknowledge
that you have received payment in full for all services rendered in conjunction
with your employment by the Company and that no other compensation is owed to
you.


7.             Continued Assistance
- You agree that after the Resignation Date you will provide services to the Company
in accordance with the Consulting Agreement attached as Exhibit B hereto; and,
during the period covered by the Consulting Agreement, provide all reasonable
cooperation to the Company, including but not limited to, assisting the company
transition your job duties, assisting the Company in defending against and/or
prosecuting any litigation or threatened litigation, and performing any other
tasks as reasonably requested by the Company, up to a total of twenty (20)
hours per month exclusive of any time related to your service as a member of
the Board.  You shall not be required to
provide any assistance to the Company beyond such twenty (20) hours in a month
during the period covered by the Consulting Agreement or provide any
cooperation beyond de minimis assistance (e.g., a brief phone call or
responding briefly to an



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email) following the end
of the period covered by the Consulting Agreement unless you and the Company
agree upon the extent and terms of such assistance in advance and in writing.


8.             Amendment - This letter agreement
shall be binding upon the parties and may not be modified in any manner, except
by an instrument in writing of concurrent or subsequent date signed by duly
authorized representatives of the parties hereto.  This letter agreement is binding upon and
shall inure to the benefit of the parties and their respective agents, assigns,
heirs, executors, successors and administrators.


9.             Waiver of
Rights - No delay or omission by the Company in exercising any
right under this letter agreement shall operate as a waiver of that or any
other right.  A waiver or consent given
by the Company on any one occasion shall be effective only in that instance and
shall not be construed as a bar or waiver of any right on any other occasion.


10.           Validity - Should any provision of this letter agreement
be declared or be determined by any court of competent jurisdiction to be
illegal or invalid, the validity of the remaining parts, terms or provisions
shall not be affected thereby and said illegal or invalid part, term or
provision shall be deemed not to be a part of this letter agreement.


11.           Nature of Agreement
- You understand and agree that this letter agreement is a severance agreement
and does not constitute an admission of liability or wrongdoing on the part of you, the Company, or any other person.


12.           Acknowledgments - You acknowledge that you have been
given at least twenty-one (21) days to consider this letter agreement,
including Attachment A, and that the Company advised you to consult with an attorney
of your own choosing prior to signing this letter agreement.  You understand that you may revoke this
letter agreement for a period of seven (7) days after you sign this letter
agreement by notifying Ms. Shmerling in writing, and the letter agreement shall
not be effective or enforceable until the expiration of this seven (7) day
revocation period.  You understand and
agree that by entering into this letter agreement, you are waiving any and all
rights or claims you might have under the Age Discrimination in Employment Act,
as amendment by the Older Workers Benefits Protection Act, and that you have
received consideration beyond that to which you were previously entitled.


13.           Voluntary Assent
- You affirm that no other promises or agreements of any kind have been made to
or with you by any person or entity whatsoever to cause you to sign this letter
agreement, and that you fully understand the meaning and intent of this letter
agreement.  You state and represent that
you have had an opportunity to fully discuss and review the terms of this
letter agreement with an attorney.  You
further state and represent that you have carefully read this letter agreement,
including Attachments A and B, understand the contents herein, freely and
voluntarily assent to all of the terms and conditions hereof, and sign your
name of your own free act.


14.           Applicable Law
- This letter agreement shall be interpreted and construed by the laws of the
Commonwealth of Massachusetts, without regard to conflict of laws provisions.  You hereby irrevocably submit to and
acknowledge and recognize the jurisdiction of the courts of the Commonwealth of
Massachusetts, or if appropriate, a federal court located in Massachusetts
(which courts, for purposes of this letter agreement, are the only courts of
competent jurisdiction), over any



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suit, action or other
proceeding arising out of, under or in connection with this letter agreement or
the subject matter hereof.


15.           Entire Agreement - This letter
agreement, including Attachments A and B, contains and constitutes the entire
understanding and agreement between the parties hereto with respect to your
severance benefits and the resolution of any potential claims against the
Company and cancels all previous oral and written negotiations, agreements,
commitments, writings in connection with severance benefits and the resolution
of any potential claims between you and the Company.  Nothing in this paragraph, however, shall modify, cancel or supersede
your obligations set forth in paragraph 4 herein.


If you have any questions about the matters covered in
this letter, please contact Ms. Shmerling.


	
  

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Peter Barrett

  
	
   

  	
   

  	
  Peter
  Barrett

  
	
   

  	
   

  	
  Board
  Member

  
	
   

  	
   

  	
  Momenta
  Pharmaceuticals, Inc.

  



 


I hereby agree to the terms and conditions set forth
above and in Attachments A and B.  I have
been given at least twenty-one (21) days to consider this letter agreement
(including Attachments A and B) and I have chosen to execute this on the date
below.  I intend that this letter
agreement and the attachments hereto will become a binding agreement between me
and the Company if I do not revoke my acceptance in seven (7) days.


	
    /s/ Alan L. Crane

  	
   

  	
   

  	
  October 12, 2006

  
	
  Alan L.
  Crane

  	
  Date

  	
   

  



 


To be returned to Lisa Shmerling on or before November
4, 2006.



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ATTACHMENT A


DESCRIPTION OF SEVERANCE BENEFITS


The Company will pay you an amount equal to
$315,000.00, less all applicable state and federal taxes (the “Severance Pay”).  This Severance Pay will be paid in one
lump-sum on the Company’s first regular pay day after this letter agreement
becomes binding upon you.


In addition, the Company will not unreasonably narrow
the scope and extent of coverage of its current Directors’ and Officers’
Insurance coverage during the five year period commencing on the date of this
letter agreement unless such narrowing or change of coverage is consistent with
regard to all Company directors and officers.



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ATTACHMENT
B


CONSULTING
AGREEMENT


As you know, Momenta will
require your assistance with regard to certain transaction activities,
including, but not limited to service as one of Momenta’s members of the joint
steering committees contemplated in (1) the Memorandum of Understanding dated
as of July 25, 2006 by and between Momenta and Sandoz AG (the “2006 Sandoz
Collaboration”) and (ii) the Collaboration and License Agreement, dated
November 1, 2003, by and among Sandoz N.V. (formerly Biochemie West Indies,
N.V.), Sandoz Inc. (formerly Geneva Pharmaceuticals, Inc.) and Momenta (the “2003
Sandoz Collaboration,” and together with the 2006 Sandoz Collaboration, the “Sandoz
Collaborations”).  You and the Company
have agreed to enter into this Consulting Agreement in order to secure your
assistance with the Sandoz Collaborations as well as with certain other
services deemed necessary by the Company. 
You and the Company, therefore, agree as follows:


1.                                       DEFINITIONS


“Confidential Information” means all trade secrets, proprietary
information, know-how, data, designs, specifications, processes, customer lists
and other technical or business information (and any tangible evidence, record
or representation thereof), whether prepared, conceived or developed by an
employee or consultant of the Company (including you) or received by the Company
or you from an outside source (including Company collaborators), which is in
the possession of the Company (whether or not the property of the Company,
which in any way relates to the present or future business of the Company, or
its business relationships, collaborative relationships, strategic plans, or
financial affairs, which is maintained in confidence by the Company, or which
might permit the Company or its affiliates, suppliers, licensors, licensees,
partners, collaborators or customers to obtain a competitive advantage over
competitors who do not have access to such trade secrets, proprietary
information, or other data or information. 
Without limiting the generality of the foregoing, Confidential Information
shall include information pertaining to: (i) any idea, improvement, invention,
innovation, development, technical data, design, formula, device, pattern,
concept, art, method, process, product, product specification, plan for a new
or revised product, formulations, technologies, techniques, methodologies,
algorithms, notation systems, computer programs, computer security systems and
processes, procedures, tests, documentation, reports, sources of supply,
know-how, patent positioning, research, development, manufacturing,
commercialization, compilation of information, or work in process, and any and
all revisions and improvements relating to any of the foregoing , as well as
information pertaining to sugars, polysaccharides, heparinases, enzymes,
reagents, glycoproteins, proteins, peptide mixtures, peptides, glycoconjugates,
primers, plasmids, vectors, expression systems, cells, cell lines, antibodies,
organisms, chemical compounds and assay systems (in each case whether or not
reduced to tangible form); and (ii) the name of any employee, consultant,
customer or prospective customer, or any other customer or prospective customer
information, any sales plan, marketing material, plan or survey, business plan
or opportunity, business proposal, strategic plan, financial record, or
business record or other record or information relating to the present or
proposed business of the Company or any customer.  Notwithstanding the foregoing, the term
Confidential Information shall not apply to information which the Company has
voluntarily disclosed to the



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public without
restriction, or which has otherwise lawfully entered the public domain.  You understand that the Company from time to
time has in its possession information which is claimed by customers,
collaborators, and others to be proprietary and which the Company has agreed to
keep confidential.  You agree that all
such information shall be Confidential Information for purposes of this
Consulting Agreement.


“Development” means ideas, concepts,
discoveries, inventions, developments, improvements, know-how, trade secrets,
methodologies, biological substances, materials, devices, equipment,
algorithms, notation systems, computer software and hardware, data,
documentation and reports (whether or not protectible under state, federal or
foreign patent, trademark, copyright or similar laws) that are developed or
conceived or reduced to practice by you (a) during the term of this Consulting
Agreement and (b) (i) in performance of the consulting services rendered under
this Consulting Agreement, (ii) by use of the Company ‘s intellectual property,
equipment or facilities or (iii) otherwise at the Company ‘s expense.


2.                                       SERVICES


                2.1  For a
period commencing on September 18, 2006 and ending on December 31, 2007, or any
longer period as agreed to in writing by you and the Company, the Company
hereby retains you as a consultant and you agree to perform the consulting
services with regard to the Sandoz Collaborations and any other projects agreed
to in writing (including email) by you and the Company, provided, however,
the Company may terminate this Consulting Agreement after twelve (12) months
without any further obligation to you. 
You agree to provide up to twenty (20) hours of consulting time per
month for which the Company shall pay you a monthly fee of $10,000, in
arrears.  Including any time pursuant to
Section 7 of the October 13, 2006 letter agreement between you and the Company
(“Continued Assistance”), you shall not be obligated to provide a total of more
than twenty (20) hours of services to the Company in any month; provided,
however, nothing herein shall limit the time necessary to the
performance of your duties and responsibilities as a member of the Board of
Directors or any duties or incident thereto.


                2.2  You
represent that you are under no contractual or other obligation or restriction
which is inconsistent with your performance of the consulting services
contemplated by this Consulting Agreement. 
You will arrange to provide the consulting services contemplated by this
Consulting Agreement in such manner and at such times that the rendering of the
consulting services under this Consulting Agreement will not conflict with your
responsibilities under any other agreement, arrangement or understanding or
pursuant to any employment relationship you have at any time with any third
party.


                2.3  You
represent that the performance of the consulting services contemplated by this
Consulting Agreement does not and will not breach any agreement which obligates
you to keep in confidence any confidential or proprietary information of any
third party or to refrain from competing with the business of any third party.


                2.4  In performing the consulting services
contemplated by this Consulting Agreement, you agree to comply with all
business conduct, regulatory and health and safety



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guidelines or regulations
established by the Company or any governmental authority with respect to the
business of the Company.


                2.5  You
represent, warrant and agree that you have not been, and during the term of
this Consulting Agreement, will not be, debarred by the Food and Drug
Administration from working in or providing services to any pharmaceutical or
biotechnology company under the Federal Food, Drug and Cosmetic Act, or under
any other applicable law.  You agree you
will immediately notify the Company if you become aware of any such
circumstances during the term of this Consulting Agreement.


                2.6  In
addition to your ongoing obligations, pursuant to the Employment Agreement, during the term of this Consulting Agreement
and for a period of one year thereafter, you shall not provide consulting
services to any business or entity with respect to a project or product in the
Field of Interest (as defined in Section 4 of the October 13, 2006 letter
agreement between you and the Company) which competes with a project or product
of the Company and for which you are or were providing consulting services
under this Consulting Agreement.


3.                                       DEVELOPMENTS


                3.1  All
Developments shall be “works made for hire” and the exclusive property of the
Company.  You shall promptly and fully
disclose to the Company all Developments. 
You shall keep and maintain complete records of all Developments and of
all work carried out by you under the terms of this Consulting Agreement.  These records shall also be “works made for
hire” and the exclusive property of the Company.  You assign to the Company all of your rights,
title and interest in and to any and all Developments.  During and after the term of this Consulting
Agreement, you will cooperate fully in obtaining patent and other proprietary
protection for any and all Developments, all in the name of the Company and at
the Company ‘s cost and expense, and, without limitation, shall execute and
deliver all requested applications, assignments and other documents, and take
such other measures as the Company shall reasonably request, in order to
perfect and enforce the Company’s rights in any and all Developments.  You hereby appoint the Company your
attorney-in-fact to execute and deliver any such documents on behalf of you in
the event you shall fail to do so.


                3.2  You shall
not use any third party intellectual property in performing the consulting
services contemplated by this Consulting Agreement or engage in any other
activities that would result in a third party having an ownership interest in
any Developments.


4.                                       CONFIDENTIALITY


                4.1  During the term of this Consulting Agreement
and thereafter, you shall not directly or indirectly publish, disseminate or
otherwise disclose, use for your own benefit or for the benefit of a third
party, or deliver or make available to any third party any Confidential
Information, other than in furtherance of the purposes of this Consulting



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Agreement and only then
with the prior written consent of the Company. 
Notwithstanding the foregoing, if required, you may disclose
Confidential Information to a governmental authority or by order of a court of
competent jurisdiction, provided that you have provided the Company with
reasonable notice and opportunity to seek protection from such disclosure to
the extent practical under the circumstances. 
During the term of this Consulting Agreement and thereafter, you shall
exercise all commercially reasonable precautions to physically protect the
integrity and confidentiality of the Confidential Information and shall not
remove any Confidential Information.


5.                                       INDEMNIFICATION


                5.1  The
Company shall indemnify, defend and hold harmless you, your heirs and assigns
(the “Indemnittees”) against any liability, damage, loss or expense (including
reasonable attorneys’ fees and expenses of litigation) incurred by, threatened
against or imposed upon the Indemnittees or any one of them, in connection with
any threatened or actual claims, suits, actions, demands or judgments arising
from your good faith performance of this Consulting Agreement, your provision
of any services pursuant to Section 7 of the October 13, 2006 letter agreement
between you and the Company (“Continued Assistance”).  


6.                                       MISCELLANEOUS


                6.1  All
consulting services contemplated under this Consulting Agreement shall be
rendered by you as an independent contractor. 
You shall have no right to receive any employee benefits, such as health
and accident insurance, sick leave or vacation which are accorded to employees
of the Company.  However, in accordance
with Company policy, the Company shall reimburse you for all reasonable travel,
lodging, sustenance and other out-of-pocket expenses incurred by you in the
course of performing hereunder.


                6.2  You shall
pay all required taxes on your income under this Consulting Agreement.  You shall provide all required tax
information, including without limitation, the IRS Form W-9 “Request for
Taxpayer Identification Number and Certification.”


                6.3  This
Consulting Agreement is a personal services agreement.  The rights and obligations under this
Consulting Agreement may not be assigned or transferred by either party without
the prior written consent of the other party, except that the Company may
assign this Consulting Agreement to an affiliated Company or in connection with
the merger, consolidation, sale or transfer of all or substantially all of the
business to which this Consulting Agreement relates.


                6.4  This
Consulting Agreement constitutes the entire agreement of the parties with
regard to its subject matter and supersedes all previous oral or written
representations, agreements and understandings between you and the Company
regarding its subject matter.  This
Consulting Agreement may be changed only by a writing signed by both parties.


                6.5  In the event that any one or more provisions
of this Consulting Agreement shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, such invalidity,



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illegality or
unenforceability shall not affect any other provision of this Consulting Agreement,
and all other provisions shall remain in full force and effect.  If any of the provisions are held to be
excessively broad, any such provision shall be reformed and construed by
limiting and reducing it so as to be enforceable to the maximum extent
permitted by law.


                6.6  This Consulting Agreement shall in all events
and for all purposes be governed by and construed in accordance with the law of
the Commonwealth of Massachusetts, without regard to any choice of law
principle that would dictate the application of the law of another
jurisdiction.



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