SEVERANCE AGREEMENT AND GENERAL RELEASE
Exhibit 10.105
SEVERANCE AGREEMENT AND GENERAL RELEASE
1. Purpose of Agreement. The purpose of this Severance Agreement and General Release
(“Agreement”) is to confirm the terms of separation of Xxxxx Xxxxxx (“Xx. Xxxxxx”) from his
employment with InterMune, Inc. (“InterMune”) (collectively the “Parties”).
2. Separation Date. Xx. Xxxxxx’x separation date is January 6, 2006. Xx. Xxxxxx
acknowledges that he has been paid all wages, except for his 2005 annual cash bonus, and accrued,
unused vacation through the Separation Date. The 2005 annual cash bonus will be paid upon the
approval of bonuses for the entire Executive Committee by the Compensation Committee of the
InterMune Board of Directors and at the same time that bonuses are paid to the remaining members of
the Executive Committee. The corporate component of the bonus will be in the amount approved by
the Compensation Committee and the individual component shall be determined in the discretion of
the Chief Executive Officer of InterMune, but in no event shall the total bonus be less than
$100,000.00, less required withholding.
3. Preserving Confidentiality Of InterMune Proprietary Information. Xx. Xxxxxx
acknowledges and agrees that he has a continuing obligation after the Separation Date to preserve
the confidentiality of all InterMune proprietary information and he shall continue to comply with
the terms and conditions of the Employee Proprietary Information and Inventions Agreement between
him and InterMune. Xx. Xxxxxx further acknowledges that he has returned to InterMune all InterMune
property and confidential and proprietary information in his possession.
4. Consideration. In exchange for a general release of claims as provided in this
Agreement, InterMune agrees to provide Xx. Xxxxxx with the following consideration.
a. InterMune will provide Xx. Xxxxxx a xxxxxxxxx payment equivalent to 18 months’ base salary,
totaling $518,250.00, less required withholding. This payment shall be made in a lump sum on the
Effective Date (as defined in Paragraph 13 of this Agreement).
b. InterMune will pay the cost of Xx. Xxxxxx’x COBRA premiums for 18 months after the
Separation Date or until he obtains comparable health insurance coverage through a new employer,
whichever is shorter.
c. InterMune shall permit the acceleration of all stock options awarded to Xx. Xxxxxx as of
the date of this Agreement that otherwise would have vested within the eighteen (18) months
immediately following the Separation Date. Xx. Xxxxxx shall have until December 31, 2006 to
exercise all vested options.
d. InterMune will provide Xx. Xxxxxx an incentive payment of $400,000.00, less required
withholding, in recognition of the Tango transaction. This payment shall be made on January 6,
2006.
Xx. Xxxxxx agrees that the payments and benefits set forth above are not otherwise due to him
and constitute consideration for the releases provided in this Agreement. The consideration paid
under this Paragraph is subject to the terms and conditions of the InterMune Severance Plan, except
as otherwise provided in this Agreement.
5. General Release of All Claims. In exchange for the consideration provided in
Paragraph 4, Xx. Xxxxxx and his representatives, heirs and assigns completely release and forever
discharge InterMune, its predecessors and successors, its parent, subsidiary and affiliated
companies, and their respective officers, agents, directors, and employees, attorneys and insurers
from all claims, rights, demands, actions, obligations, and causes of action of any and every kind,
nature and character, known or unknown, which he may now have, or has ever had, against them,
arising from or in any way connected with the employment relationship between the Parties, and the
termination of his employment, including but not limited to all wrongful discharge claims, all
claims related to any contracts of employment, express or implied; all claims arising from the
covenant of good faith and fair dealing, express or implied; all tort claims of any nature; all
claims arising under any federal, state, or municipal statute or ordinance; all claims under the
California Fair Employment and Housing Act, Title VII of the Civil Rights Act, the Age
Discrimination In Employment Act, the Americans with Disabilities Act, Family and Medical Leave
Act, the California Family Rights Act, the Employee Retirement Income Security Act, the Fair Labor
Standards Act, the California Labor Code, the federal and California Worker Adjustment and
Retraining Notification Act, and any other laws and regulations relating to employment
discrimination; and any and all claims for compensation, bonuses, severance pay, attorneys’ fees
and costs. This general release of claims applies to all claims arising as of the Effective Date
of this Agreement, with the following exceptions. This general release includes claims of
discrimination or retaliation on the basis of workers’ compensation status, but does not include
workers’ compensation claims. This general release does not include claims for unemployment
benefits or for benefits under COBRA.
6. Waiver of Unknown Claims. Xx. Xxxxxx expressly waives the provisions of California
Civil Code Section 1542 which provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING
THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR.
Xx. Xxxxxx understands that Section 1542 gives him the right not to release existing claims of
which he is not now aware, unless he voluntarily chooses to waive this right. Having been so
apprised, he voluntarily elects to waive the rights described in Section 1542, and elects to assume
all risks for claims that now exist in his favor, known or unknown.
7. Compliance With Older Workers Benefit Protection Act. Xx. Xxxxxx acknowledges that
InterMune hereby advises him (1) to consult with an attorney prior to signing this Agreement; (2)
that he has forty-five (45) days in which to consider whether to sign the Agreement; (3) that if he
signs the Agreement he has seven (7) days thereafter to revoke it; and
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(4) that the Agreement will not become effective, and no payments will be made, until after
this seven-day revocation period elapses. Xx. Xxxxxx further acknowledges that he has received
Older Workers Benefit Protection Act disclosures.
8. Cal-WARN Notice. Xx. Xxxxxx acknowledges that he received notice of a mass layoff
pursuant to the California Worker Adjustment and Retraining Notification Act on November 28, 2005.
He further acknowledges that he has received pay in lieu of notice for the period between the
Separation Date and the end of the WARN period.
9. Dispute Resolution. InterMune and Xx. Xxxxxx agree that any and all disputes
arising out of this Agreement and any of the matters herein released shall be subject to binding
arbitration in San Francisco, California before the American Arbitration Association under the
applicable rules. The Parties agree and hereby waive their rights to a jury trial as to matters
arising out of this Agreement and any matters herein released to the extent permitted by law. The
Parties agree that the prevailing party in any arbitration shall be entitled to injunctive relief
in any court of competent jurisdiction to enforce the arbitration award and is further entitled, to
the extent permitted by law, to recover all costs and attorneys’ fees arising from and related to
the arbitration.
10. Severability. The provisions of this Agreement are contractual and severable. If
any part of this Agreement is at any time held invalid, that part will remain in effect to the
extent allowed by law and all other provisions shall remain in full force and effect.
11. Governing Law. This Agreement is governed by and construed in accordance with the
laws of the State of California.
12. Entire Agreement. This Agreement constitutes a single, integrated written
contract expressing the entire agreement between Xx. Xxxxxx and InterMune concerning the subject
matter of this Agreement. There is no other agreement, written or oral, express or implied,
between Xx. Xxxxxx and InterMune with respect to the subject matter of this Agreement. This General
Release may not be modified except in a writing signed by Xx. Xxxxxx and the Chief Executive
Officer of InterMune.
13. Effective Date. This Agreement shall become effective on the eighth day following
the date on which it is signed by Xx. Xxxxxx, unless he revokes his approval of the Agreement
within seven (7) days after signing it.
| XXXXX XXXXXX | ||||||
Dated: January 6, 2006
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| INTERMUNE, INC. | ||||||
Dated: January 5, 2006
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