Exhibit 10.1
TRANSITION AGREEMENT
This Transition Agreement (“Agreement”) is entered into by and between Arcadia Biosciences, Inc., a Delaware corporation (“Company”) and Matthew Plavan (“Executive”), effective as of September 3, 2021 (“Effective Date”). The parties agree as follows:
1. Background and Purpose.
1.1 Employment. Executive currently is employed as the Chief Executive Officer of the Company pursuant to that certain Employment Agreement dated October 1, 2019.
1.2 Severance Agreement. As part of his employment, Executive and the Company entered into Severance and Change In Control Agreement dated September 1, 2019 (“Severance Agreement”).
1.3 Transition. In the event Executive’s employment with the Company terminates in 2021, the Company and Executive desire to specify certain consulting services that will be provided by Executive and certain severance rights that will be provided to Executive, on the terms and conditions as set forth in this Agreement.
2. Transition Consulting. If after the Effective Date Executive is terminated by the Company without Cause and the effective date of such termination is a date certain before December 1, 2021, then the Company and Executive shall, no later than the effective date of such termination, enter into a consulting agreement in the form attached hereto as Exhibit A (“Consulting Agreement”).
3. Separation Agreement.
3.1 Company Termination. If after the Effective Date the Company notifies Executive in writing of his termination of employment with the Company (i) without Cause and with an effective date of termination on a date certain before December 1, 2021 or (ii) for any reason with an effective date of termination on a date certain within the month of December 2021, then on the effective date of such termination, the Company and Executive shall execute and deliver to each other a Separation and Release Agreement in the form attached hereto as Exhibit B, in the case of termination pursuant to part (i) of this Section 3.1 (“Pre-December Separation Agreement”), or in the form attached hereto as Exhibit C, in the case of termination pursuant to part (ii) of this Section 3.1 (“December Separation Agreement”).
3.2 Executive Resignation. If Executive notifies the Company in writing on or after November 15, 2021 that he will resign his employment with the Company as of a date certain within the month of December 2021, then on the effective date of such resignation, the Company and Executive shall execute and deliver to each other the December Separation Agreement in the form attached hereto as Exhibit C.
3.3 Other Termination. If Executive’s employment with the Company terminates for a reason or in a manner not described in Section 3.1 and 3.2 above, or if Executive does not execute and deliver the Consulting Agreement, Pre-December Separation Agreement or the December Separation Agreement in the manner required pursuant to Sections 2, 3.1 and 3.2, then any severance or other benefits payable to Executive in connection with such termination shall be governed by the Severance Agreement.
4. Definition of Cause. For purposes of this Agreement, the term “Cause” shall have the meaning given to such term in the Severance Agreement.
5. Miscellaneous.
5.1. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be an original and all of which shall together constitute one and the same document.
5.2. Governing Law. This Agreement shall be governed by the laws of the State of California, notwithstanding its conflict of laws provisions.
5.3. Severability. If any provision of this Agreement is held to be invalid, void or unenforceable for any reason, the remaining provisions shall nevertheless continue in full force and effect.
5.4. Headings. The headings in this Agreement are only for convenience and are not to be considered in construing this Agreement.
5.5 Attorney’s Fees. Each party shall bear its/his own attorney’s fees in the preparation and review of this Agreement. Should suit, action, or arbitration be instituted to enforce any provision of this Agreement, the prevailing party shall be entitled to recover its/his costs and reasonable attorney’s fees.
5.6 Entire Agreement, Modification, Successors. Except as otherwise provided herein, this Agreement contains the entire Agreement between the parties hereto with regard to the subject matters discussed herein and supersedes all prior oral and/or written agreements if any. This Agreement may be modified, and any provision of this Agreement may be waived, only by the further written agreement of the parties hereto. This Agreement will bind the heirs, personal representatives, successors and assigns of the parties, and inure to the benefit of the parties, and their heirs, successors and assigns.
5.7 Notices. Any notice, consent, waiver, and other communication under this Agreement shall be in writing, and any written notice or other document shall be deemed to have been duly given and received (a) if mailed by registered or certified mail, three business days after deposit in the United States mail, postage prepaid, return receipt requested; (b) upon confirmation of a receipt of a facsimile transmission; (c) if hand delivered, upon delivery against receipt or upon refusal to accept the notice; (d) if delivered by a recognized overnight courier,
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one business day after deposit with such courier, postage prepaid, in each case, addressed to such party at the address set forth below or at the most recent address specified through written notice under this provision; or (e) if delivered via email, upon confirmation of receipt. Failure to conform to the requirement that mailing be done by registered mail or certified mail shall not defeat the effectiveness of notice actually received by the addressee. Unless otherwise provided for in this Agreement, notices should be sent to the following addresses:
If to Executive:
E-mail:
If to the Company:
Arcadia Biosciences, Inc.
202 Cousteau Place, Suite 105
Davis, CA 95618
With a copy to Arcadia Corporate Counsel (which shall not constitute notice):
Mike DeAngelis
Weintraub Tobin Chediak Coleman Grodin
400 Capitol Mall, 11th Floor
Sacramento, California 95814
[SIGNATURE PAGE TO FOLLOW]
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The parties have executed this Transition Agreement as of the date first above written.
COMPANY: | EXECUTIVE: |
Arcadia Biosciences, Inc, a Delaware corporation
By: /s/ Kevin Comcowich Kevin Comcowich, Chair of the Board of Directors
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/s/ Matthew Plavan Matthew Plavan |
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Exhibit A
Form of Consulting Agreement
This Consulting Agreement (this “Agreement”), effective as of _________________, 2021 (the “Effective Date”), is by and between ARCADIA BIOSCIENCES, INC. (the “Company”), and MATTHEW PLAVAN (the “Consultant”). The Company and the Consultant are sometimes referred to in this Agreement individually as a “Party” and collectively as the “Parties”.
BACKGROUND
ACCORDINGLY, in consideration of the mutual agreements, covenants, representations and warranties contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which the Parties acknowledge, the Parties agree as follows:
AGREEMENT
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During the Term, and in accordance with the conditions, provisions and terms contained in this Agreement, the Consultant will provide certain consulting services to the Company as outlined in the Statement of Work attached as Exhibit A, or as requested by the CEO of the Company from time to time (the “Consulting Services”). Consultant shall use his best efforts to perform the Consulting Services such that the results are satisfactory to the Company. Consultant will report to the Company’s CEO concerning the Consulting Services performed under this Agreement. The nature and frequency of these reports will be left to the discretion of the Company.
This Agreement will be effective for the period commencing on the Effective Date stated above and ending on November 30, 2021 (the “Term”); provided, however, that the Parties may extend the Term through the execution of a mutually acceptable written amendment to this Agreement.
Notwithstanding the immediately preceding paragraph, Consultant may terminate this Agreement at any time upon twenty (20) days’ written notice. Also, should Consultant default in the performance of the Consulting Services under this Agreement or materially breach any of his duties or obligations under the Agreement, the Company may terminate this Agreement immediately.
In the event of termination: (i) Consultant shall promptly discontinue all work hereunder (unless the notice from the Company provides otherwise); (ii) Consultant shall deliver, or otherwise make available to, the Company, all data, drawings, specifications, reports, estimates, summaries and such other information and materials as may have been created or otherwise accumulated by Consultant in performing the Consulting Services, whether completed or in progress; and (iii) the Company shall compensate Consultant through the termination date for Consulting Services actually performed hereunder in accordance with the rates set forth herein.
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During the Term, and subject to Exhibit A hereto, the Consultant will devote his best abilities, efforts, energies, interest and time to the Company’s affairs and business as needed to provide the Consulting Services and as requested by the Company. While Consultant will make himself reasonably accessible to the Company during the Term of this Agreement, he is not obligated to provide services exclusively to the Company and is free to provide consulting services to others during the Term of the Agreement.
Consultant shall at all times perform his Consulting Services with a high degree of professional skill and diligence and in accordance with all applicable law, statutes, and regulations. Consultant shall be responsible, to the level of competency presently maintained by others in the profession performing the same type of work, for the professional and technical soundness, accuracy and adequacy of all work and materials furnished under this Agreement. In providing Consulting Services, Consultant shall also conduct himself in relation to all of the Company’s employees, clients, affiliates, and agents, in a professional and respectful manner. Consultant shall comply with all applicable laws and shall not harass, discriminate, retaliate, defame, disparage, or in any other way engage in inappropriate conduct toward any employee, client, affiliate, or agent of the Company. Consultant shall not use or disclose, or suffer or permit any of his employees or agents to use or disclose, any information received from the Company during the performance of the Consulting Services, for his own benefit, profit, or gain, or the benefit, profit, or gain by another individual or entity. Consultant shall issue no public announcement or press release relating to his retention by the Company hereunder without the express prior agreement of the Company.
As compensation for the Consulting Services, the Company will pay Consultant according to the compensation schedule set forth in Exhibit A. No compensation for travel, meals, mileage, or per diem allowances shall be payable to Consultant unless shown on Exhibit A or otherwise approved by the Company in advance of any expense being incurred. Consultant otherwise is responsible for all costs and expenses he incurs in the performance of the Consulting Services under this Agreement. Unless otherwise specified in Exhibit A, Consultant shall submit invoices to the Company each month for the Consulting Services rendered hereunder, which invoices shall be paid within fifteen (15) days of receipt by the Company. Should the Company dispute any part of an invoice submitted by Consultant, the basis of such dispute shall be delivered by the Company to Consultant, in writing, within five (5) calendar days of the subject invoice transmittal date. If no such notice from the Company is received by Consultant, the invoice shall be deemed approved by the Company.
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The Consultant acknowledges, agrees and understands that the Company’s respective intellectual property rights are exclusively and solely the property of the Company and/or the Company’s clients or affiliates, as applicable, and that all use of such intellectual property rights inures to the benefit of the Company and/or the Company’s clients or affiliates. The Consultant acknowledges, agrees and understands that the Company owns all contracts entered into among and by the Company and any other person.
At his sole cost, Consultant shall procure, carry, and maintain in force continuously during the life of this Agreement, all forms of insurance, if any, applicable to his profession and business as related to the Consulting Services provided to the Company. Examples of such insurance that may be applicable are: a) workers’ compensation insurance, as may be required by law if he has
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employees; b) the minimum auto liability insurance required under California law; and c) any professional errors and omissions insurance.
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If to Consultant:
Matthew Plavan
____________________________
____________________________
If to Company:
Arcadia Biosciences, Inc.
202 Cousteau Place, Suite 105
Davis, CA 95618
With a copy to Arcadia Corporate Counsel:
Mike DeAngelis
Weintraub Tobin Chediak Coleman Grodin
400 Capitol Mall, 11th Floor
Sacramento, California
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By signing below, the Parties agree to be bound by the obligations set forth in this Agreement, as well as the Statement of Work attached as Exhibit A.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.
COMPANY:
ARCADIA BIOSCIENCES, INC.
By:__________________________________
Title:_________________________________
CONSULTANT:
_______________________________________
MATTHEW PLAVAN
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EXHIBIT “A”
STATEMENT OF WORK
Consulting Services:
Consultant shall provide the following Consulting Services to the Company:
provide professional business consulting and advisory services in support of the Company’s strategic initiatives as requested and directed from time to time by the Company’s Chief Executive Officer.
Consultant’s Fees:
$30,833 per month for Consulting Services, pro-rated for partial months of Consulting Services.
Pursuant to Section 6 of the Consulting Agreement, Consultant must submit an invoice to the Company each month during the Term of the Consulting Agreement reflecting the Consulting Services provided during that month, and the corresponding amount of time spent on such Consulting Services.
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Exhibit B
Form of Separation Agreement With Consulting Agreement
This Separation and Release Agreement ("Agreement") is entered into by and between MATTHEW PLAVAN (“Plavan” or “Employee”) on the one hand and ARCADIA BIOSCIENCES, INC., a Delaware corporation (“Arcadia” or “Company”) on the other hand. The parties may hereinafter be referred to individually as a "Party" or collectively as the "Parties."
BACKGROUND
For and in consideration of the mutual promises and covenants in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
TERMS OF AGREEMENT
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5. Health Insurance Benefits. Plavan’s right to continue to participate in any of the health insurance benefit plans and programs of Arcadia in effect as of the Separation Date shall be determined according to the terms and provisions of such programs and plans and applicable law. To the extent provided by the federal COBRA law or, if applicable, state insurance laws, and by the Company's current group health insurance policies, Plavan will be eligible to continue his
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group health insurance benefits should he chose to do so and the Company will provide him with a separate notice describing his rights and obligations under COBRA. Should Plavan elect to continue health insurance benefits under COBRA, Arcadia shall pay the premium payments for such benefits through the earlier of May 31, 2022, or such time as Plavan and/or his eligible dependents become covered under another health insurance plan. Plavan shall have a duty to notify Arcadia if he and/or his eligible dependents become covered under another health insurance plan prior to May 31, 2022, at which time Arcadia shall have the right to terminate further COBRA premium payments. Also, should Plavan not elect COBRA, this severance benefit shall be forfeited and Arcadia shall have no obligation to pay Plavan the value of the COBRA premium payment
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a. In exchange for executing this Agreement, Plavan is receiving separate consideration beyond that which he is otherwise entitled to.
b. By signing this Agreement, Plavan is waiving, among other rights, all claims and rights under the Age Discrimination in Employment Act ("ADEA") and the Older Workers' Benefit Protection Act ("OWBPA"), 29 U.S.C. §621, et seq. Accordingly, Plavan understands that he has twenty one (21) days to consider this Agreement, but need not take the full twenty one (21) day period if he does not wish to do so. If Plavan signs this Agreement before the expiration of the twenty-one (21) day period, he acknowledges and represents that he did so voluntarily.
c. Plavan has seven (7) days to revoke his waiver under the ADEA and OWBPA after signing this Agreement. For Plavan’s revocation to be effective, he must give written notice of his revocation to the Company (in care of, and addressed to, the attention of the Company’s corporate counsel, Mike DeAngelis of Weintraub Tobin Chediak Coleman Grodin, at the address listed in Section 24 of this Agreement) prior to the expiration of the seven (7) day period (“Revocation Period”). Plavan understands and acknowledges that if he revokes his acceptance of this Agreement within the Revocation Period, he will not be entitled to, and Arcadia will not be obligated to provide him with, any of the Separation Benefits outlined in Sections 3-6 of this Agreement. In such circumstance, if payments or benefits to Plavan have already begun, Arcadia may immediately cease any further payments or benefits.
d. Plavan acknowledges that: i) he has carefully read this Agreement; ii) he understands its final and binding effect; iii) he has been advised, by the language of this provision, of his right to consult with an attorney prior to signing the Agreement; and iv) he understands the provisions of this Agreement and knowingly and voluntarily agrees to be legally bound by them.
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If to Plavan:
____________________________
____________________________
If to Arcadia:
Arcadia Biosciences, Inc.
202 Cousteau Place, Suite 105
Davis, CA 95618
With a copy to Arcadia Corporate Counsel:
Mike DeAngelis
Weintraub Tobin Chediak Coleman Grodin
400 Capitol Mall, 11th Floor
Sacramento, California 95814
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The Parties hereto have each duly executed this Separation and Release Agreement as of the Signature Date set forth below.
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Dated:______________, 2021 __________________________________________
MATTHEW PLAVAN
Dated:______________, 2021 ARCADIA BIOSCIENCES, INC.
By:______________________________________
Title:_____________________________________
[SIGNATURE PAGE TO SEPARATION AND RELEASE AGREEMENT]
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Exhibit A
CONSULTING AGREEMENT
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Exhibit B
STOCK OPTIONS
Grant Date | Shares Subject to Stock Options | Exercise Price Per Share |
9/12/2016 | 6,250 | $43.80 |
6/8/2017 | 11,250 | $14.00 |
9/18/2018 | 47,200 | $4.63 |
6/3/2019 | 26,000 | $5.04 |
2/3/2020 | 76,000 | $4.91 |
1/21/2021 | 250,000 | $3.05 |
Total | 416,700 |
|
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Exhibit C
Form of Separation Agreement Without Consulting Agreement
This Separation and Release Agreement ("Agreement") is entered into by and between MATTHEW PLAVAN (“Plavan” or “Employee”) on the one hand and ARCADIA BIOSCIENCES, INC., a Delaware corporation (“Arcadia” or “Company”) on the other hand. The parties may hereinafter be referred to individually as a "Party" or collectively as the "Parties."
BACKGROUND
For and in consideration of the mutual promises and covenants in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
TERMS OF AGREEMENT
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5. Health Insurance Benefits. Plavan’s right to continue to participate in any of the health insurance benefit plans and programs of Arcadia in effect as of the Separation Date shall be determined according to the terms and provisions of such programs and plans and applicable law. To the extent provided by the federal COBRA law or, if applicable, state insurance laws, and by the Company's current group health insurance policies, Plavan will be eligible to continue his group health insurance benefits should he chose to do so and the Company will provide him with a separate notice describing his rights and obligations under COBRA. Should Plavan elect to
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continue health insurance benefits under COBRA, Arcadia shall pay the premium payments for such benefits through the earlier of May 31, 2022, or such time as Plavan and/or his eligible dependents become covered under another health insurance plan. Plavan shall have a duty to notify Arcadia if he and/or his eligible dependents become covered under another health insurance plan prior to May 31, 2022, at which time Arcadia shall have the right to terminate further COBRA premium payments. Also, should Plavan not elect COBRA, this severance benefit shall be forfeited and Arcadia shall have no obligation to pay Plavan the value of the COBRA premium payment
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a. In exchange for executing this Agreement, Plavan is receiving separate consideration beyond that which he is otherwise entitled to.
b. By signing this Agreement, Plavan is waiving, among other rights, all claims and rights under the Age Discrimination in Employment Act ("ADEA") and the Older Workers' Benefit Protection Act ("OWBPA"), 29 U.S.C. §621, et seq. Accordingly, Plavan understands that he has twenty one (21) days to consider this Agreement, but need not take the full twenty one (21) day period if he does not wish to do so. If Plavan signs this Agreement before the expiration of the twenty-one (21) day period, he acknowledges and represents that he did so voluntarily.
c. Plavan has seven (7) days to revoke his waiver under the ADEA and OWBPA after signing this Agreement. For Plavan’s revocation to be effective, he must give written notice of his revocation to the Company (in care of, and addressed to, the attention of the Company’s corporate counsel, Mike DeAngelis of Weintraub Tobin Chediak Coleman Grodin, at the address listed in Section 24 of this Agreement) prior to the expiration of the seven (7) day period (“Revocation Period”). Plavan understands and acknowledges that if he revokes his acceptance of this Agreement within the Revocation Period, he will not be entitled to, and Arcadia will not be obligated to provide him with, any of the Separation Benefits outlined in Sections 3-6 of this Agreement. In such circumstance, if payments or benefits to Plavan have already begun, Arcadia may immediately cease any further payments or benefits.
d. Plavan acknowledges that: i) he has carefully read this Agreement; ii) he understands its final and binding effect; iii) he has been advised, by the language of this provision, of his right to consult with an attorney prior to signing the Agreement; and iv) he understands the provisions of this Agreement and knowingly and voluntarily agrees to be legally bound by them.
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If to Plavan:
____________________________
____________________________
If to Arcadia:
Arcadia Biosciences, Inc.
202 Cousteau Place, Suite 105
Davis, CA 95618
With a copy to Arcadia Corporate Counsel:
Mike DeAngelis
Weintraub Tobin Chediak Coleman Grodin
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400 Capitol Mall, 11th Floor
Sacramento, California 95814
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The Parties hereto have each duly executed this Separation and Release Agreement as of the Signature Date set forth below.
Dated:______________, 2021 __________________________________________
MATTHEW PLAVAN
Dated:______________, 2021 ARCADIA BIOSCIENCES, INC.
By:______________________________________
Title:_____________________________________
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[SIGNATURE PAGE TO SEPARATION AND RELEASE AGREEMENT]
Exhibit A
STOCK OPTIONS
Grant Date | Shares Subject to Stock Options | Exercise Price Per Share |
9/12/2016 | 6,250 | $43.80 |
6/8/2017 | 11,250 | $14.00 |
9/18/2018 | 47,200 | $4.63 |
6/3/2019 | 26,000 | $5.04 |
2/3/2020 | 76,000 | $4.91 |
1/21/2021 | 250,000 | $3.05 |
Total | 416,700 |
|
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