FORM OF EMPLOYMENT AGREEMENT
FORM
OF
This
Employment Agreement (“Agreement”), effective as of this ____ day
of
______, 2006, by and between XOMA (US) LLC (“XOMA” or the “Company”), a Delaware
limited liability company with its principal office at 0000 Xxxxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxx, and ________________________ (“Employee”), an individual
residing at _____________________________________________.
WHEREAS,
the Company wishes to enter into this Agreement to assure the Company of the
continued services of Employee; and
WHEREAS,
Employee is willing to enter into this Agreement and to continue to serve in
the
employ of the Company upon the terms and conditions hereinafter provided;
NOW,
THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto hereby agree as follows:
1. Employment.
The
Company agrees to continue to employ Employee, and Employee agrees to continue
to be employed by the Company, for the period referred to in Section 3 hereof
and upon the other terms and conditions herein provided.
2. Position
and Responsibilities.
The
Company agrees to employ Employee in the position of
_____________________________, and Employee agrees to serve as
_______________________________________, for the term and on the conditions
hereinafter set forth. Employee agrees to perform such services not inconsistent
with her/his position as shall from time to time be assigned to her/him by
the
Chairman of the Board, President and Chief Executive Officer of the Company
(the
“Chairman”).
3. Term
and
Duties.
(a) Term
of
Employment.
This
Agreement shall become effective and the term of employment pursuant to this
Agreement shall commence on __________, 2006 and will continue until
_____________________, ____, and will be automatically extended (without further
action by the parties) for one year thereafter and again on each subsequent
anniversary thereof unless terminated by mutual written consent of Employee
and
the Company more than 90 days prior to the next scheduled expiration date or
unless Employee’s employment is terminated by the Company or he/she resigns from
the Company’s employ as described herein.
(b) Duties.
During
the period of her/his employment hereunder Employee shall serve the Company
as
its _______________________________________, and except for illnesses, vacation
periods and reasonable leaves of absence, Employee shall devote all of her/his
business time, attention, skill and efforts to the faithful performance of
her/his duties hereunder. So long as Employee is
________________________________ of the Company, he/she will discharge all
duties incidental to such office and such further duties as may be reasonably
assigned to her/him from time to time by the Chairman.
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4. Compensation
and Reimbursement of Expenses.
(a) Compensation.
For all
services rendered by Employee as _____________________________________
during her/his employment under this Agreement, the Company shall pay Employee
as compensation a base salary at a rate of not less than $________ per annum.
All taxes and governmentally required withholding shall be deducted in
conformity with applicable laws.
(b) Reimbursement
of Expenses.
The
Company shall pay or reimburse Employee for all reasonable travel and other
expenses incurred by Employee in performing her/his obligations under this
Agreement in a manner consistent with past Company practice. The Company further
agrees to furnish Employee with such assistance and accommodations as shall
be
suitable to the character of Employee’s position with the Company, adequate for
the performance of her/his duties and consistent with past Company practice.
5. Participation
in Benefit Plans.
The
payments provided in Section 4 hereof are in addition to benefits Employee
is
entitled to under any group hospitalization, health, dental care, disability
insurance, surety bond, death benefit plan, travel and/or accident insurance,
other allowance and/or executive compensation plan, including, without
limitation, any senior staff incentive plan, capital accumulation and
termination pay programs, restricted or non-restricted share purchase plan,
share option plan, retirement income or pension plan or other present or future
group employee benefit plan or program of the Company for which key executives
are or shall become eligible, and Employee shall be eligible to receive during
the period of her/his employment under this Agreement, and during any subsequent
period(s) for which he/she shall be entitled to receive payment from the Company
under paragraph 6(b) below, all benefits and emoluments for which key executives
are eligible under every such plan or program to the extent permissible under
the general terms and provisions of such plans or programs and in accordance
with the provisions thereof.
6. Payments
to Employee Upon Termination of Employment.
(a) Termination.
Upon the
occurrence of an event of termination (as hereinafter defined) during the period
of Employee’s employment under this Agreement, the provisions of this paragraph
6(a) and paragraph 6(b) shall apply. As used in this Agreement, an “event of
termination” shall mean and include any one or more of the following:
(i) The
termination by the Company of Employee’s employment hereunder for any reason
other than pursuant to paragraph 6(c); or
(ii) Employee’s
resignation from the Company’s employ for Good Reason, upon not less than thirty
(30) days’ prior written notice.
“Good
Reason” means, without the Employee's written consent, (A) the material
diminution of any material duties or responsibilities of the Employee without
the same being corrected within ten (10) days after being given written notice
thereof; (B) a material reduction in the Employee's base salary; or (C) the
Company giving written
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notice
of
its intention not to extend the term of this Agreement as provided in paragraph
3(a).
(b) Severance
Pay and Other Benefits.
The
following provisions of this Section 6(b) shall apply upon the occurrence of
an
event of termination under paragraph 6(a).
(i) Cash
Severance Pay.
Upon the
occurrence of an event of termination under paragraph 6(a), the Company shall,
subject to the provisions of Section 7 below, pay Employee, or in the event
of
her/his subsequent death, her/his beneficiary or beneficiaries of her/his
estate, as the case may be, as severance pay or liquidated damages, or both,
(A)
a severance payment in an amount equal to ____ times the Employee’s annual base
salary as in effect immediately prior to the termination, and (B) a severance
payment equal to the sum of (1) ____ times the Employee’s annual target
bonus as in effect for the fiscal year in which the termination occurs, and
(2)
an amount equal to a pro-rated portion of the Employee’s annual target bonus as
in effect for the fiscal year in which the termination occurs calculated by
multiplying the annual target bonus by a fraction, the numerator of which shall
be the number of calendar months (including a portion of any such month) that
the Employee was employed with the Company prior to the occurrence of the
termination during such fiscal year, and the denominator of which shall be
12.
Such severance payments shall be in lieu of any other severance payment to
which
the Employee shall be entitled as a result of such termination pursuant to
this
Agreement, any other employment agreement with or offer letter from the Company
or any of its affiliates or the Company’s or any of its affiliate’s then
existing severance plans and policies, except in those circumstances where
the
provisions of the Change of Control Severance Agreement, effective as of
_______, 2006, between Employee and XOMA Ltd., by such agreement’s express
terms, apply, in which case the provisions of such agreement providing for
severance payment(s) to Employee as a result of such termination shall apply
in
lieu of the provisions of this Agreement relating thereto. The severance payment
described in Section 6(b)(i)(A) shall be paid in monthly installments over
______ months (the “Severance Payment Period”), beginning within thirty (30)
days of the termination, provided, however, if the Employee is employed with
another employer at any time within ______ months following the termination,
then, to the extent permitted under Section 409A of the Internal Revenue Code
of
1986, as amended (the “Code”), and the final rules and regulations promulgated
thereunder, any remaining unpaid installment payments shall be paid in a lump
sum within 30 days of the receipt by the Company of written notice and
confirmation of such new employment. The severance payment described in Section
6(b)(i)(B) shall be paid in a lump sum within thirty (30) days of the
termination.
(ii) Group
Health Coverage and Certain Other Benefits.
In
addition, during a period of ______ months following an event of termination
under paragraph 6(a), (A) the Company shall pay for the full cost of the
coverage (plus an additional amount to pay for the taxes on such payments,
if
any, plus any taxes on such additional amount) of the Employee and Employee’s
spouse and eligible dependents under any group health plans of the Company
on
the date of such termi-
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nation
of
employment at the same level of health (i.e., medical, vision and dental)
coverage and benefits as in effect for the Employee or such covered dependents
on the date immediately preceding the date of the Employee’s termination;
provided,
however,
that
(1) the Employee and Employee’s spouse and eligible dependents each
constitutes a qualified beneficiary, as defined in Section 4980B(g)(1) of
the Code; and (2) the Employee elects continuation coverage pursuant to the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”),
within the time period prescribed pursuant to COBRA; and (B) if Employee is,
at
the time of such termination, an eligible participant in the Company’s mortgage
differential program, the Company shall continue to make mortgage assistance
payments to Employee pursuant to such program as in effect at the time of such
termination. Notwithstanding the foregoing, the payments by the Company for
such
group health coverage and/or mortgage assistance, as applicable, shall cease
prior to the expiration of the ______ month period in this Section 6(b)(ii)
upon
the employment of the Employment by another employer. Furthermore, if, at the
time of the termination of Employee’s employment under paragraph 6(a), Employee
is the obligor of a “forgivable” loan (i.e., a loan which by its terms is to be
considered forgiven by the Company and paid by the obligor in circumstances
other than actual repayment) from the Company, then, notwithstanding any
provisions of such loan to the contrary, such loan shall remain outstanding,
and
the forgiveness thereof shall continue, for a period of ______ months following
such termination in accordance with the terms of such loan in effect at the
time
of such termination; provided,
however, that
at
the end of such period of ______ months, the outstanding balance of such loan
shall be immediately due and payable, together with any accrued and unpaid
interest thereon.
(iii) Section
409A of the Code.
Notwithstanding the foregoing clauses (i) and (ii), to the extent any of the
severance payments, mortgage assistance payments or loan forgiveness referred
to
therein, or any taxes payable on the health benefits referred to therein, would
be deemed made in connection with a “separation from service” within the meaning
of the term in Section 409A(a)(2)(A)(i) of the Code to a “specified employee”
within the meaning of the term in Section 409A(a)(2)(B(i) of the Code, and
not
exempt from the requirements of Section 409A of the Code, then such payments
or
forgiveness, as the case may be, shall be postponed until six (6) months
following the Employee’s termination from employment as required by Section 409A
of the Code, provided,
however,
if prior
to the expiration of such six-month period, the Employee dies or becomes
“disabled” within the meaning of the term in Section 409A(a)(2)(c) of the Code,
or suffers an “unforeseeable emergency” within the meaning of the term in
Section 409A(a)(2)(B)(ii), or there has occurred a “change in the ownership or
effective control” of the Company or in the “ownership of a substantial portion
of the assets” of the Company within the meaning of such phrases in Section
409A(a)(2)(A)(v) of the Code, then such payments or forgiveness, as the case
may
be, shall commence prior to expiration of the six month period according to
the
original payment schedule for such payments to the extent permitted by Section
409A of the Code. Thus, for example, if the provision in the preceding sentence
applies, the first six (6) monthly installments of the severance payments
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provided
for in clause (i) above shall be paid immediately following the six (6) month
period in a lump sum and the seventh (7th) through ______ installments shall
be
paid according to their original schedule provided that the Employee does not
die, become “disabled,” or suffer an “unforeseeable emergency,”
and
there has not occurred a “change in the ownership or effective control” of the
Company or in the “ownership of a substantial portion of the assets” of the
Company during such six-month period.
(iv) Outplacement
Program.
Upon the
occurrence of an event of termination under paragraph 6(a), the Employee will
immediately become entitled to participate in a ______ month executive
outplacement program provided by an executive outplacement service, at the
Company’s expense not to exceed ______.
(v) Release
of Claims.
As a
condition of entering into this Agreement and receiving the severance benefits
under this Section 6(b), the Employee agrees to execute and not revoke a
release of claims agreement substantially in the form attached hereto as
Exhibit A
upon the
termination of the Employee’s employment with the Company. Such release shall
not, however, apply to the rights and claims of the Employee under this
Agreement, any indemnification agreement between the Employee and XOMA Ltd.
(or
its successor or acquirer), the bye-laws of XOMA Ltd. (or its successor or
acquirer), the share award agreements between the Employee and XOMA Ltd. (or
its
successor or acquirer), or any employee benefit plan of which the Employee
is a
participant and under which all benefits due under such plan have not yet been
paid or provided.
(c) Other
Termination of Employment.
Notwithstanding paragraphs 6(a) and (b) or any other provision of this Agreement
to the contrary, if on or after the date of this Agreement and prior to the
end
of the term hereof:
(i) Employee
has been convicted of any crime or offense constituting a felony under
applicable law, including, without limitation, any act of dishonesty such as
embezzlement, theft or larceny;
(ii) Employee
shall act or refrain from acting in respect of any of the duties and
responsibilities which have been assigned to her/him in accordance with this
Agreement and shall fail to desist from such action or inaction within thirty
(30) days after Employee’s receipt of notice from the Company of such action or
inaction and the Board of Directors determines that such action or inaction
constituted gross negligence or a willful act of malfeasance or misfeasance
of
Employee in respect of such duties; or
(iii) Employee
shall breach any material term of this Agreement and shall fail to correct
such
breach within thirty (30) days after Employee’s receipt of notice from the
Company of such breach (provided such breach can be cured);
then,
and
in each such case, the Company shall have the right to give notice of
termination of Employee’s services hereunder (or pay Employee in lieu of notice)
as of a date
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(not
earlier than fourteen (14) days from such notice) to be specified in such notice
and this Agreement (other than the provisions of Section 7 hereof) shall
terminate on such date.
7. Post-Termination
Obligations.
All
payments and benefits to Employee under this Agreement shall be subject to
Employee’s compliance with the following provisions during the term of her/his
employment and for the Severance Payment Period:
(a) Confidential
Information and Competitive Conduct.
Employee
shall not, to the detriment of the Company, disclose or reveal to any
unauthorized person any trade secret or other confidential information relating
to the Company or its affiliates or to any businesses operated by them, and
Employee confirms that such information constitutes the exclusive property
of
the Company. Employee shall not otherwise act or conduct her/himself to the
material detriment of the Company or its affiliates, or in a manner which is
inimical or contrary to the interests thereof, and, for a period of twelve
(12)
months following an event of termination under paragraph 6(a), shall not,
directly or indirectly, engage in or render any service (whether to a person,
firm or business) in direct competition with the Company; provided,
however,
that
Employee’s ownership of less than five percent (5%) of the outstanding stock of
a corporation shall not be itself be deemed to constitute such competition.
Employee recognizes that the possible restrictions on her/his activities which
may occur as a result of her/his performance of her/his obligations under this
paragraph 7(a) are required for the reasonable protection of the Company and
its
investments. For purposes hereof, “in direct competition” means engaged in the
research, development and/or production of biological materials intended for
use
as therapeutic, prophylactic or diagnostic products in one or more of the same
indications, and that utilize one or more of the same scientific bases (e.g.,
in
the case of a therapeutic antibody, targets the same signal initiating pathway),
as a product or product candidate the research, development and/or production
of
which is an active part of the Company’s business plan at the time of Employee’s
termination.
(b) Non-Disparagement.
The
Employee and the Company agree to refrain from any defamation, libel or slander
of the other and its respective officers, directors, employees, representatives,
investors, shareholders, administrators, affiliates, divisions, subsidiaries,
predecessor and successor corporations and assigns or tortious interference
with
the contracts and relationships of the other and its respective officers,
directors, employees, representatives, investors, shareholders, administrators,
affiliates, divisions, subsidiaries, predecessor and successor corporations
and
assigns.
(c) Failure
of Employee to Comply.
If, for
any reason other than death or disability, Employee shall, without written
consent of the Company, fail to comply with the provisions of paragraphs 7(a)
or
7(b) above, her/his rights to any future payments or other benefits hereunder
shall terminate, and the Company’s obligations to make such payments and provide
such benefits shall cease.
(d) Remedies.
Employee
agrees that monetary damages would not be adequate compensation for any loss
incurred by the Company by reason of a breach of the
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provisions
of this Section 7 and hereby agrees to waive the defense in any action for
specific performance that a remedy at law would be adequate.
8. Effect
of Prior Agreements.
This
Agreement contains the entire understanding between the parties hereto and
supersedes any prior employment agreements between the Company and Employee,
but
shall not supersede the Change of Control Severance Agreement referred to above,
any indemnification agreement between the Employee and XOMA Ltd. (or its
successor or acquirer), the share award agreements between the Employee and
XOMA
Ltd. (or its successor or acquirer), or any employee benefit plan of which
the
Employee is a participant and under which all benefits due under such plan
have
not yet been paid or provided.
9. General
Provisions.
(a) Binding
Agreement.
This
Agreement shall be binding upon, and inure to the benefit of, Employee and
the
Company and their respective permitted successors and assigns.
(b) Legal
Expenses.
In the
event that Employee incurs legal expenses in contesting any provision of this
Agreement and such contest results in a determination that the Company has
breached any of its obligations hereunder, Employee shall be reimbursed by
the
Company for such legal expenses.
(c) Compliance
with Section 409A of the Code.
Any
payments under this Agreement which would be subject to Section 409A of the
Code
shall be administered in compliance with the requirements of Section 409A of
the
Code.
10. Successors
and Assigns.
(a) Assignment
by the Company.
This
Agreement shall be binding upon and inure to the benefit of the successors
and
assigns of the Company and, unless clearly inapplicable, reference herein to
the
Company shall be deemed to include its successors and assigns.
(b) Assignment
by Employee.
Employee
may not assign this Agreement in whole or in part.
11. Modification
and Waiver.
(a) Amendment
of Agreement.
This
Agreement may not be modified or amended except by an instrument in writing
signed by the parties hereto.
(b) Waiver.
No term
or condition of this Agreement shall be deemed to have been waived except by
written instrument of the party charged with such waiver. No such written waiver
shall be deemed a continuing waiver unless specifically stated therein, and
each
such waiver shall operate only as to the specific term or condition waived.
12. Severability.
In the
event any provision of this Agreement or any part hereof is held invalid, such
invalidity shall not affect any remaining part of such provision or any
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other
provision. If any court construes any provision of this Agreement to be illegal,
void or unenforceable because of the duration or the area or matter covered
thereby, such court shall reduce the duration, area or matter of such provision,
and, in its reduced form, such provision shall then be enforceable and shall
be
enforced.
13. Governing
Law.
This
Agreement has been executed and delivered in the State of California, and its
validity interpretation, performance, and enforcement shall be governed by
the
laws of said State.
IN
WITNESS
WHEREOF, XOMA has caused this Agreement to be executed by its duly authorized
officer, and Employee has signed this Agreement, all as of the day and year
first above written.
|
XOMA
(US) LLC
/s/
Xxxx X. Xxxxxxxx
By:
Xxxx X. Xxxxxxxx
Chairman
of the Board, President
and
Chief Executive Officer
_______________________________
Employee
|
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EXHIBIT
A
FORM
RELEASE OF CLAIMS AGREEMENT
This
Release of Claims Agreement (this “Agreement”) is made and entered into by and
between XOMA (US) LLC (the “Company”) and ________ (the
“Employee”).
WHEREAS,
the Employee was employed by the Company; and
WHEREAS,
the Company and the Employee have entered into an employment agreement effective
as of ________, 2006 (the “Employment Agreement”).
NOW
THEREFORE, in consideration of the mutual promises made herein and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Employee (collectively referred to as the
“Parties”) desiring to be legally bound do hereby agree as follows:
1. Termination.
The
Employee’s employment with the Company terminated on ___________,
20__.
2. Consideration.
Subject
to and in consideration of the Employee’s release of claims as provided herein,
the Company has agreed to pay the Employee certain benefits and the Employee
has
agreed to provide certain benefits to the Company, both as set forth in the
Employment Agreement.
3. Release
of Claims.
The
Employee agrees that the foregoing consideration represents settlement in full
of all currently outstanding obligations owed to the Employee by the Company.
The Employee, on the Employee’s own behalf and the Employee’s respective heirs,
family members, executors and assigns, hereby fully and forever releases the
Company and its past, present and future officers, agents, directors, employees,
investors, shareholders, administrators, affiliates, divisions, subsidiaries,
parents, predecessor and successor corporations, and assigns, from, and agrees
not to xxx or otherwise institute or cause to be instituted any legal or
administrative proceedings concerning any claim, duty, obligation or cause
of
action relating to any matters of any kind, whether presently known or unknown,
suspected or unsuspected, that the Employee may possess arising from any
omissions, acts or facts that have occurred up until and including the Effective
Date (as defined below) of this Agreement including, without
limitation:
(a) any
and
all claims relating to or arising from the Employee’s employment relationship
with the Company and the termination of that relationship;
(b) any
and
all claims relating to, or arising from, the Employee’s right to purchase, or
actual purchase of shares of stock of the Company, including, without
limitation, any claims for fraud, misrepresentation, breach of fiduciary duty,
breach of duty under applicable state corporate law and securities fraud under
any state or federal law;
(c) any
and
all claims for wrongful discharge of employment, termination in violation of
public policy, discrimination, breach of contract (both express and implied),
breach of a covenant of good faith and fair dealing (both express and implied),
promissory estoppel, negli-
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gent
or
intentional infliction of emotional distress, negligent or intentional
misrepresentation, negligent or intentional interference with contract or
prospective economic advantage, unfair business practices, defamation, libel,
slander, negligence, personal injury, assault, battery, invasion of privacy,
false imprisonment and conversion;
(d) any
and
all claims for violation of any federal, state or municipal statute, including,
but not limited to, Title VII of the Civil Rights Act of 1964, the Civil
Rights Act of 1991, the Age Discrimination in Employment Act of 1967, the
Americans with Disabilities Act of 1990, the Fair Labor Standards Act, the
Employee Retirement Income Security Act of 1974, The Worker Adjustment and
Retraining Notification Act, the California Fair Employment and Housing Act,
and
Labor Code Section 201, et
seq.
and
Section 970, et
seq.
and all
amendments to each such Act as well as the regulations issued
thereunder;
(e) any
and
all claims for violation of the federal or any state constitution;
(f) any
and
all claims arising out of any other laws and regulations relating to employment
or employment discrimination; and
(g) any
and
all claims for attorneys’ fees and costs.
The
Employee agrees that the release set forth in this Section 4 shall be and
remain in effect in all respects as a complete general release as to the matters
released. Notwithstanding the foregoing, this release does not extend to any
obligations now or subsequently incurred under this Agreement, the Employment
Agreement, the Indemnification Agreement between the Employee and the Company
(or its successor or acquirer), the outstanding stock award agreements between
the Employee and the Company (or its successor or acquirer), or any employee
benefit plan of which the Employee is a participant and under which all benefits
due under such plan have not yet been paid or provided.
4. Acknowledgment
of Waiver of Claims under ADEA.
The
Employee acknowledges that the Employee is waiving and releasing any rights
the
Employee may have under the Age Discrimination in Employment Act of 1967
(“ADEA”) and that this waiver and release is knowing and voluntary. The Employee
and the Company agree that this waiver and release does not apply to any rights
or claims that may arise under the ADEA after the Effective Date of this
Agreement. The Employee acknowledges that the consideration given for this
waiver and release agreement is in addition to anything of value to which the
Employee was already entitled. The Employee further acknowledges that the
Employee has been advised by this writing that (a) the Employee should
consult with an attorney prior
to
executing this Agreement; (b) the Employee has at least twenty-one (21)
days within which to consider this Agreement; (c) the Employee has seven
(7) days following the execution of this Agreement by the Parties to revoke
the
Agreement; and (d) this Agreement shall not be effective until the
revocation period has expired. Any revocation should be in writing and delivered
to the Company by the close of business on the seventh (7th)
day from
the date that the Employee signs this Agreement.
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5. Civil
Code Section 1542.
The
Employee represents that the Employee is not aware of any claims against the
Company other than the claims that are released by this Agreement. The Employee
acknowledges that the Employee has been advised by legal counsel and is familiar
with the provisions of California Civil Code Section 1542, which provides
as follows:
A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW
OR
SUSPECT TO EXIST IN HER OR HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH
IF KNOWN BY HER OR HIM MUST HAVE MATERIALLY AFFECTED HER OR HIS SETTLEMENT
WITH
THE DEBTOR.
The
Employee, being aware of said code section, agrees to expressly waive any rights
the Employee may have thereunder, as well as under any other statute or common
law principles of similar effect.
6. No
Pending or Future Lawsuits.
The
Employee represents that the Employee has no lawsuits, claims or actions pending
in the Employee’s name, or on behalf of any other person or entity, against the
Company or any other person or entity referred to herein. The Employee also
represents that the Employee does not intend to bring any claims on the
Employee’s own behalf or on behalf of any other person or entity against the
Company or any other person or entity referred to herein except, if necessary,
with respect to the agreements listed in the last sentence of Section 4 of
this
Agreement.
7. Confidentiality.
The
Employee agrees to use the Employee’s best efforts to maintain in confidence the
existence of this Agreement, the contents and terms of this Agreement, and
the
consideration for this Agreement (hereinafter collectively referred to as
“Release Information”). The Employee agrees to take every reasonable precaution
to prevent disclosure of any Release Information to third parties and agrees
that there will be no publicity, directly or indirectly, concerning any Release
Information. The Employee agrees to take every precaution to disclose Release
Information only to those attorneys, accountants, governmental entities and
family members who have a reasonable need to know of such Release
Information.
8. No
Adverse Cooperation.
The
Employee agrees the Employee will not act in any manner that might damage the
business of the Company. The Employee agrees that the Employee will not counsel
or assist any attorneys or their clients in the presentation or prosecution
of
any disputes, differences, grievances, claims, charges or complaints by any
third party against the Company and/or any officer, director, employee, agent,
representative, shareholder or attorney of the Company, unless compelled under
a
subpoena or other court order to do so.
9. Costs.
The
Parties shall each bear their own costs, expert fees, attorneys’ fees and other
fees incurred in connection with this Agreement.
10. Authority.
The
Company represents and warrants that the undersigned has the authority to act
on
behalf of the Company and to bind the Company and all who may claim through
it
to the terms and conditions of this Agreement. The Employee represents and
warrants that the
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Employee
has the capacity to act on the Employee’s own behalf and on behalf of all who
might claim through the Employee to bind them to the terms and conditions of
this Agreement.
11. No
Representations.
The
Employee represents that the Employee has had the opportunity to consult with
an
attorney, and has carefully read and understands the scope and effect of the
provisions of this Agreement. Neither party has relied upon any representations
or statements made by the other party hereto which are not specifically set
forth in this Agreement.
12. Severability.
In the
event that any provision hereof becomes or is declared by a court of competent
jurisdiction to be illegal, unenforceable or void, this Agreement shall continue
in full force and effect without said provision.
13. Entire
Agreement.
This
Agreement and the Employment Agreement and the agreements and plans referenced
therein represent the entire agreement and understanding between the Company
and
the Employee concerning the Employee’s separation from the Company, and
supersede and replace any and all prior agreements and understandings concerning
the Employee’s relationship with the Company and the Employee’s compensation by
the Company. This Agreement may only be amended in writing signed by the
Employee and an executive officer of the Company.
14. Governing
Law.
This
Agreement shall be governed by the internal substantive laws, but not the choice
of law rules, of the State of California.
15. Effective
Date.
This
Agreement is effective eight
(8)
days after it has been signed by the Parties (the “Effective Date”) unless it is
revoked by the Employee within seven (7) days of the execution of this Agreement
by the Employee.
16. Counterparts.
This
Agreement may be executed in counterparts, and each counterpart shall have
the
same force and effect as an original and shall constitute an effective, binding
agreement on the part of each of the undersigned.
17. Voluntary
Execution of Agreement.
This
Agreement is executed voluntarily and without any duress or undue influence
on
the part or behalf of the Parties hereto, with the full intent of releasing
all
claims. The Parties acknowledge that:
(a) they
have
read this Agreement;
(b) they
have
been represented in the preparation, negotiation and execution of this Agreement
by legal counsel of their own choice or that they have voluntarily declined
to
seek such counsel;
(c) they
understand the terms and consequences of this Agreement and of the releases
it
contains; and
(d) they
are
fully aware of the legal and binding effect of this Agreement.
-13-
IN
WITNESS
WHEREOF, the Parties have executed this Agreement on the respective dates set
forth below.
XOMA
(US) LLC
By:
___________________________________
Title:
_________________________________
Date:
_________________________________
EMPLOYEE
______________________________________
Name
Name
Date:
_________________________________
-14-
Terms
of
Individual Executive Officer Employment Agreements
(to be read in conjuntion with Form of Employment Agreement)
(to be read in conjuntion with Form of Employment Agreement)
|
Name
|
Title
|
Current
Salary |
Paragraph
6(b)(i)
|
Paragraph
6(b)(ii) |
Paragraph
6(b)(iv)
|
||
|
Xxxx
X. Xxxxxxxx
|
Chairman
of the Board, President and Chief Executive Officer
|
$500,000
|
1.5
|
18
months
|
18
months
|
12
months |
$15,000
|
|
Xxxxxxx
X. Xxxxxxx, MD, PhD
|
Chief
Biotechnology Officer
|
$360,000
|
.75
|
9
months
|
9
months
|
6
months |
$8,000
|
|
Xxxxxxxxxxx
X. Xxxxxxxx
|
Vice
President, General Counsel and Secretary
|
$300,000
|
.75
|
9
months
|
9
months
|
6
months |
$8,000
|
|
J.
Xxxxx Xxxxx II
|
Vice
President, Finance and Chief Financial Officer
|
$260,000
|
.75
|
9
months |
9
months
|
6
months |
$8,000
|
-15-
