Exhibit 10.4
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY [***], HAS BEEN OMITTED BECAUSE IT IS BOTH (i) NOT MATERIAL AND (ii) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY DISCLOSED.
Separation and General Release Agreement
The remainder of this letter proposes a Separation and General Release Agreement (the “Agreement”) between you and the Company. The purpose of this Agreement is to establish an amicable arrangement for ending your employment relationship, including releasing the Company and related persons or entities from any claims and permitting you to receive separation pay and related benefits.
You acknowledge that you are entering into this Agreement knowingly and voluntarily. It is customary in employment separation agreements for the departing employee to release the employer from any possible claims, even if the employer believes, as is the case here, that no such claims exist. By proposing and entering into this Agreement, the Company is not admitting in any way that it violated any legal obligation that it owed to you.
With those understandings, you and the Company agree as follows:
This confirms that your employment with the Company ended effective on September 30th, 2022 (the “Separation Date”). You acknowledge that as of the Company’s payroll processed on September 30th, 2022, you were fully paid for all earned wages then due to you. You also acknowledge that you have been paid in full for all accrued but unused vacation time due to you in connection with your employment through September 30th, 2022.
ACTIVE/21736753.4
In consideration for your execution and non-revocation of the Separation Agreement, in addition to the Severance Benefits set forth in Section 2 above, the [***] RSUs that are scheduled to vest effective [***] shall accelerate and vest effective on the Separation Date (“Accelerated RSUs”), and shall be settled on or shortly after the Company’s next open trading window, which is expected to begin on November 15, 2022, the day following the public release of the Company’s financial and operation results for the quarter ended September 30, 2022 unless extended or delayed. The Company will treat the Accelerated RSUs as W-2 income and shall sell the required amount of RSUs to cover the associated withholding obligation. All other RSUs that are not vested as of the Separation Date shall lapse on that date and will be void.
You acknowledge that your obligations under the Separation Agreement shall continue in effect, including without limitation your obligations as defined in the Gelesis Insider Trading Policy and Gelesis Special Trading Procedures and to maintain the confidentiality of Confidential Information as defined in the Employee Invention and Non-Disclosure Agreement and the Non-Solicitation Agreement, and to return documents and other property of the Company. A copy of your signed Employee Invention and Non-Disclosure Agreement and your Non-Solicitation Agreement is enclosed as Exhibit B.
In consideration for, among other terms, the Severance Pay, to which you acknowledge you would otherwise not be entitled, you voluntarily release and forever discharge the Company, its affiliated and related entities, its and their respective predecessors, successors and assigns, its and their respective employee benefit plans and fiduciaries of such plans, and the current and former officers, directors, shareholders, employees, attorneys, accountants and agents of each of the foregoing in their official and personal capacities (collectively referred to as the “Releasees”) generally from all claims, demands, debts, damages and liabilities of every name and nature, known or unknown (“Claims”) that, as of the date when you sign this Agreement, you have, ever had, now claim to have or ever claimed to have had against any or all of the Releasees. This release includes, without limitation, all Claims:
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provided, however, that this release shall not affect your rights under this Agreement.
You agree not to accept damages of any nature, other equitable or legal remedies for your own benefit or attorney’s fees or costs from any of the Releasees with respect to any Claim released by this Agreement. As a material inducement to the Company to enter into this Agreement, you represent that you have not assigned any Claim to any third party.
Accordingly:
The Employee is hereby advised in writing to consult with an attorney of his/her own choosing in connection with this Agreement.
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You agree, to the fullest extent permitted by law, to keep all Agreement-Related Information completely confidential. “Agreement-Related Information” means any allegations of wrongful conduct by the Company or any of its representatives, the negotiations leading to this Agreement and the existence and terms of this Agreement. Notwithstanding the foregoing, you may disclose Agreement-Related Information to your spouse, your attorney and your financial advisors, and to them only provided that they first agree for the benefit of the Company to keep Agreement-Related Information confidential. You represent that during the period since the date of the proposal of this Agreement, you have not made any disclosures that would have been contrary to the foregoing obligation if it had then been in effect. Nothing in this section shall be construed to prevent you from disclosing Agreement-Related Information to the extent required by a lawfully issued subpoena or duly issued court order; provided that you provide the Company with advance written notice and a reasonable opportunity to contest such subpoena or court order.
You agree not to make any disparaging statements concerning the Company or any of its affiliates, products, services or current or former officers, directors, shareholders, employees or agents. You represent that during the period since the date of the proposal of this Agreement, you have not made any such disparaging statements. The Company shall direct all employees whom it informs of the terms of this Agreement not to make disparaging statements about you during such employment with the Company.
Nothing contained in this Agreement limits your ability to file a charge or complaint with any federal, state or local governmental agency or commission (a “Government Agency”). In addition, nothing contained in this Agreement limits your ability to communicate with any Government Agency or otherwise participate in any investigation or proceeding that may be conducted by any Government Agency, including your ability to provide documents or other information, without notice to the Company, nor does anything contained in this Agreement apply to truthful testimony in litigation. If you file any charge or complaint with any Government Agency and if the Government Agency pursues any claim on your behalf, or if any other third party pursues any claim on your behalf, you waive any right to monetary or other individualized relief (either individually or as part of any collective or class action); provided that nothing in this Agreement limits any right you may have to receive a whistleblower award or bounty for information provided to the Securities and Exchange Commission. In addition, for the avoidance of doubt, pursuant to the federal Defend Trade Secrets Act of 2016, you shall not be
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held criminally or civilly liable under any federal or state trade secret law or under this Agreement for the disclosure of a trade secret that (a) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (b) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
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Please indicate your agreement to the terms of this Agreement by signing and returning to Mr. Jeff Kagy at jkagy@gelesis.com the original or a PDF copy of this letter within the time period set forth above.
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Sincerely,
GELESIS, INC
By: /s/ Yishai Zohar September 27, 2022
Yishai Zohar Date
Gelesis, Inc
Chief Executive Officer
You are advised to consult with an attorney before signing this Agreement. This is a legal document. Your signature will commit you to its terms. By signing below, you acknowledge that you have carefully read and fully understand all of the provisions of this Agreement and that you are knowingly and voluntarily entering into this Agreement.
By: /s/ David Abraham September 27, 2022
David Abraham Date
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