Exhibit 10.5
SEPARATION AND RELEASE AGREEMENT
This Separation and Release Agreement (“Agreement”) is made and entered into by Aspen Aerogels, Inc. (“Aspen” or the “Company”) and Kelley Conte, on behalf of herself, her heirs, executors, administrators, successors and assigns (collectively referred to throughout this Agreement as “Employee,” and, together with Aspen, the “Parties”). The Parties agree that:
limitations of Section 6(a) of that certain Amended and Restated Executive Employment Agreement dated as of January 1, 2023 (the “Executive Agreement”).
(iii) waiving all of Employee’s claims (except as provided in this Agreement) and releasing Aspen and certain other parties, all as further described below in this Agreement; and (iv) waiving and releasing any rights or entitlements to severance or similar post-termination payments or benefits, other than those provided in this Agreement, Aspen will provide Employee with the following “Separation Benefit”:
allegations of corporate fraud;
information regarding any of the Company’s business partners and its services, including names, representatives, proposals, bids, contracts and their contents and parties, the type and quantity of products and services received by the Company, and other non-public information relating to business partners; (v) information regarding personnel, employee lists, compensation, and employee skills; (vi) any other non-public information which a competitor of the Company could use to the competitive disadvantage of the Company; and (vii) any other scientific, technical or trade secrets of the Company or of any third party provided to the Employee or the Company under a condition of confidentiality, provided that Confidential Information shall not include information that was (a) known to the Employee prior to joining the Company, (b) general industry knowledge,
(c) required to be disclosed by Employee in connection with a judicial, special or arbitral proceeding or pursuant to court order or subpoena, (d) is in the public domain other than through any fault or act by the Employee, or (e) is approved for release with the Company’s written authorization;
Company Group property not returned or returned in a damaged condition as well as any monies paid by the Company on Employee’s behalf;
Company or its designee without charge by Employee. If the Company is unable, after reasonable
effort, to secure Employee’s signature on any such papers and/or other documents, Employee hereby irrevocably designates and appoints each officer of the Company as Employee’s agent and attorney-in-fact to execute any such papers on Employee’s behalf, and to take any and all actions as the Company may deem necessary or desirable in order to protect its rights and interests in any Invention;
Notwithstanding the foregoing, and in its discretion as provided pursuant to Section 8(c) of the Executive Agreement, the Company has chosen not to enforce the Covenant Not-To-Compete and
hereby waives any right to enforce the Covenant Not-To-Compete. Accordingly, Employee acknowledges and agrees that Employee shall have no right to receive any “Special Consideration” as defined in Section 8(e) of the Executive Agreement. Further, Employee acknowledges and agrees that Employee is bound by and will comply with the terms of the Restrictive Covenants as set out in the Executive Agreement, other than the Covenant Not-To-Compete, which Restrictive Covenants by their terms survive the termination of Employee’s employment with Aspen.
Massachusetts Privacy Statute; The Massachusetts Sexual Harassment Statute; The Massachusetts Wage Act; The Massachusetts Minimum Fair Wages Act; The Massachusetts Equal Pay Act; The Massachusetts Paid Family and Medical Leave Law; any and all state or local laws addressing
matters similar to those addressed by the foregoing federal and state laws; any other federal, state or local law, rule, regulation, or ordinance; any public policy, contract claim, tort, or common law; and any basis for recovering costs, fees, or other expenses including attorneys’ fees incurred in these matters. This release covers both claims Employee knows about and those Employee may not know about, and is binding upon Employee and Employee’s successors, assigns and heirs. Employee also represents that Employee has not pledged, given or sold any portion of any claim discussed in this Agreement to anyone else. If any claim is not subject to release, to the extent permitted by law, Employee waives any right or ability to be a class or collective action representative or to otherwise participate in any putative or certified class, collective or multi-party action or proceeding based on such a claim in which Aspen or any other Releasee identified in this Agreement is a party.
(v) Employee may, at Employee’s sole option, revoke Employee’s assent to this Agreement within seven (7) days after signing it, upon return of the written notice included as Exhibit B to this Agreement by delivering it, via first class mail and e-mail, to:
Virginia H. Johnson
Chief Legal Officer, General Counsel & Corporate Secretary Aspen Aerogels, Inc.
26 Forest Street, Suite 200
Marlborough, MA 01752
E-mail: gjohnson@aerogel.com
(vi) this Agreement will not become effective until this 7-day period has expired and will be void if Employee revokes it within such period; and (vii) the eighth (8th) day following Employee’s signing of this Agreement is the “Effective Date” of this Agreement.
EMPLOYEE ACKNOWLEDGES THAT THE COMPANY PROVIDED EMPLOYEE WITH A COPY OF THIS AGREEMENT ON SEPTEMBER 5, 2023.
EMPLOYEE IS ADVISED THAT EMPLOYEE HAS UP TO TWENTY- ONE (21) CALENDAR DAYS TO CONSIDER THIS AGREEMENT, WHICH MEANS EMPLOYEE MAY EXECUTE THIS AGREEMENT ANY TIME UNTIL AND THROUGH SEPTEMBER 26, 2023 AND ABSENT SUCH EXECUTION, THIS AGREEMENT WILL BECOME NULL AND VOID.
EMPLOYEE ACKNOWLEDGES AND AGREES THAT ANY MODIFICATIONS, MATERIAL OR OTHERWISE, MADE TO PRIOR VERSIONS OF THIS AGREEMENT DID NOT RESTART OR AFFECT IN ANY MANNER THE ORIGINAL TWENTY-ONE (21) CALENDAR DAY CONSIDERATION PERIOD.
EMPLOYEE FREELY AND KNOWINGLY, AND AFTER DUE CONSIDERATION, ENTERS INTO THIS AGREEMENT INTENDING TO WAIVE, SETTLE AND RELEASE ALL CLAIMS EMPLOYEE HAS OR MIGHT HAVE AGAINST RELEASEES. NEITHER ASPEN NOR ITS AGENTS, REPRESENTATIVES OR ATTORNEYS, MADE ANY REPRESENTATIONS CONCERNING THE TERMS OF THIS AGREEMENT OTHER THAN THOSE CONTAINED HEREIN.
(Signature Page Follows)
The Parties knowingly and voluntarily sign this Agreement as of the date(s) set forth below:
EMPLOYEE |
| COMPANY | ||
Kelley Conte |
| Aspen Aerogels, Inc. | ||
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By: | /s/ Kelley Conte |
| By: | /s/ Donald Young |
Name: | Kelley Conte |
| Name: | Donald Young |
Date: | August 21, 2023 |
| Date: | August 20, 2023 |
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Return Address for Signed Agreement
Virginia H. Johnson
Chief Legal Officer, General Counsel & Corporate Secretary Aspen Aerogels, Inc.
26 Forest Street, Suite 200
Marlborough, MA 01752
E-mail: gjohnson@aerogel.com
EXHIBIT A
CONSULTING AGREEMENT
EXHIBIT B
NOTICE TO REVOKE CONFIDENTIAL SEPARATION AND RELEASE AGREEMENT DATE:
Virginia H. Johnson
Chief Legal Officer, General Counsel & Corporate Secretary Aspen Aerogels, Inc.
26 Forest Street, Suite 200
Marlborough, MA 01752
E-mail: gjohnson@aerogel.com
Re: Seven Day Notice To Revoke
Dear Ms. Johnson:
I hereby exercise my right to revoke the CONFIDENTIAL SEPARATION AND RELEASE AGREEMENT executed and delivered to you. I understand this revocation must be signed and delivered to Virginia Johnson within seven (7) calendar days from the date the CONFIDENTIAL SEPARATION AND RELEASE AGREEMENT was signed by me.
Very truly yours,
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