Exhibit 10.1
FORM OF EXECUTIVE OFFICER CHANGE IN CONTROL SEVERANCE AGREEMENT
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This Change in Control Severance Agreement ("Agreement") is made
effective as of ________ ("Effective Date"), by and between Ligand
Pharmaceuticals Incorporated, a Delaware corporation (the "Company"),
and ___________ ("Employee").
The parties agree as follows:
1. Definitions. For purposes of this Agreement, the following
terms shall have the following meanings:
(a) ":Cause" shall mean any of the following: (i) Employee's
conviction of, or plea of "guilty" or "no contest" to, a felony under the laws
of the United States or any state thereof; (ii) Employee's willful and material
breach of any obligation or duty under this Agreement, the Company's
Confidentiality and Proprietary Rights Agreement (as defined below) or the
Company's written employment or other written policies that have previously been
furnished to Employee, which breach is not cured within thirty (30) days after
written notice thereof is received by Employee, if such breach is capable of
cure; (iii) Employee's gross negligence or willful misconduct, including without
limitation, fraud, dishonesty or embezzlement, in the performance of his or her
duties; or (iv) Employee's continuing failure or refusal to perform his or her
assigned duties or to comply with reasonable directives of the Board of
Directors that are consistent with Employee's job duties (which directives are
not in conflict with applicable law), which failure is not cured within thirty
(30) days after written notice thereof is received by Employee.
(b) "Change in Control" shall mean a change in ownership or
control of the Company effected through any of the following transactions:
(i) a merger, consolidation or other reorganization
approved by the Company's stockholders, unless securities representing more than
fifty percent (50%) of the total combined voting power of the voting securities
of the successor corporation are immediately thereafter beneficially owned,
directly or indirectly and in substantially the same proportion, by the persons
who beneficially owned the Company's outstanding voting securities immediately
prior to such transaction;or
(ii) the sale, license, transfer or other disposition
(including establishing a royalty trust)of an asset or assets in one transaction
or a series of related transactions which the Board determines, in its sole
discretion, represent more than fifty percent (50%) of the aggregate value of
the Company's assets; or
(iii) the acquisition, directly or indirectly by any
person or related group of persons (other than the Company or a person that
directly or indirectly controls, is controlled by, or is under common control
with, the Company), of beneficial ownership (within the meaning of Rule 13d-3
of the 0000 Xxx) of securities possessing more than fifty percent (50%) of the
total combined voting power of the Company's outstanding securities pursuant to
a tender or exchange offer made directly to the Company's stockholders.
(c) "Good Reason" shall mean the occurrence of any of the
following events or conditions without Employee's written consent:
(i) a material diminution in Employee's authority,
duties or responsibilities;
(ii) a material diminution in Employee's base
compensation;
(iii) a material change in the geographic location at
which Employee must perform his or her duties; or
(iv) any other action or inaction that constitutes a
material breach by the Company or any successor or affiliate of its obligations
to Employee under this Agreement.
Employee must provide written notice to the Company of the occurrence
of any of the foregoing events or conditions without Employee's written consent
within ninety (90) days of the occurrence of such event. The Company or any
successor or affiliate shall have a period of thirty (30) days to cure such
event or condition after receipt of written notice of such event from Employee.
Any voluntary termination of Employee's employment for "Good Reason" following
such thirty (30) day cure period must occur no later than the date that is six
(6) months following the initial occurrence of one of the foregoing events or
conditions without Employee's written consent.
(d) "Permanent Disability" means Employee's inability to
perform the essential functions of his or her position, with or without
reasonable accommodation, for a period of at least 120 consecutive days because
of a physical or mental impairment.
(e) "Stock Awards" means all stock options, restricted stock
and such other awards granted pursuant to the Company's stock option and equity
incentive award plans or agreements and any shares of stock issued upon exercise
thereof.
2. Severance.
(a) If Employee's employment is terminated by the Company
without Cause or by Employee for Good Reason within twenty-four (24) months
following a Change in Control, Employee shall be entitled to receive, in lieu of
any severance benefits to which Employee may otherwise be entitled under any
severance plan or program of the Company, the benefits provided below:
(i) The Company shall pay to Employee his or her
fully earned but unpaid base salary, when due, through the date of termination
at the rate then in effect, plus all other amounts to which Employee is entitled
under any compensation plan or practice of the Company at the time of
termination;
(ii) Subject to Employee's continued compliance with
Section 3, Employee shall be entitled to receive severance pay in an amount
equal to the sum of:
(A) Employee's monthly base salary as in effect
immediately prior to the date of termination for the [For Chief Executive
Officer: twenty-four (24)][For other executives: twelve (12)] month period
following the date of termination, plus
(B) [For Chief Executive Officer: Two (2)times]
[For other executives: An amount equal to] the greater of (A) Employee's maximum
target bonus for the fiscal year during which the date of termination occurs or
(B) Employee's maximum target bonus for the fiscal year during which the Change
in Control occurs,
payable in a lump sum within five (5) days following the effective date of
Employee's Release, but in no event later than two and one-half (2 1/2) months
following the last day of the calendar year in which the date of Employee's
termination of employment occurs;
(iii) Subject to Employee's continued compliance with
Section 3, Employee shall be entitled to receive a lump sum cash payment equal
to (A) [For Chief Executive Officer: twenty-four (24)][For other executives:
twelve (12)] multiplied by (B) the monthly premium Employee would be
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required to pay for continuation coverage pursuant to the Consolidated Omnibus
Budget Reconciliation Act of 1985, as amended ("COBRA") for Employee and his or
her eligible dependents who were covered under the Company's health plans as of
the date of Employee's termination such that Employee's premiums are the same as
for active employees (calculated by reference to the premium as of the date of
termination) (provided that Employee shall be solely responsible for all matters
relating to his or her continuation of coverage pursuant to COBRA, including,
without limitation, his or her election of such coverage and his or her timely
payment of premiums), which payment shall be paid within five (5) days following
the effective date of Employee's Release, but in no event later than two and
one-half (2 1/2) months following the last day of the calendar year in which the
date of Employee's termination of employment occurs;
(iv) The vesting and/or exercisability of any
outstanding unvested portions of Employee's Stock Awards shall be automatically
accelerated on the effective date of Employee's Release. In addition,
[For Xxxxxxxxxxxx and Xxxxxxxxx only: with respect to Employee's Stock Awards
granted on or after the Effective Date,] Employee's Stock Awards may be
exercised by Employee (or Employee's guardian or legal representative)
until (A) the date that is nine (9) months following the date of termination, or
(B) such longer period as may be specified in the applicable stock award
agreement; provided, however, that in no event shall any Stock Award remain
exercisable beyond the original outside expiration date of such Stock Award.
[For Xxxxxxxxxxxx and Xxxxxxxxx only: In addition, with respect to Employee's
Stock Awards granted prior to the Effective Date, such Stock Awards may be
exercised by Employee (or Employee's guardian or legal representative) until (A)
the later of (1) the fifteenth (15th) day of the third (3rd) month following the
date the Stock Award would otherwise have expired following Employee's
termination or (2) the December 31 first occurring following the date the Stock
Award would otherwise have expired following Employee's termination, or (B) such
longer period as may be specified in the applicable stock award agreement;
provided, however, that in no event shall any such Stock Award remain
exercisable beyond the original outside expiration date of such Stock Award.]
The foregoing provisions are hereby deemed to be a part of each Stock Award and
to supersede any less favorable provision in any agreement or plan regarding
such Stock Award.
(b) Other Terminations. If Employee's employment is
terminated by the Company without Cause or by Employee for Good Reason prior to
a Change in Control or more than twenty-four (24) months following a Change in
Control, or at any time by the Company for Cause, by Employee without Good
Reason, or as a result of Employee's death or Permanent Disability, the Company
shall not have any other or further obligations to Employee under this Agreement
(including any financial obligations) except that Employee shall be entitled to
receive (i)Employee's fully earned but unpaid base salary, through the date of
termination at the rate then in effect, and (ii) all other amounts or benefits
to which Employee is entitled under any compensation, retirement or benefit plan
or practice of the Company at the time of termination in accordance with the
terms of such plans or practices, including, without limitation, any
continuation of benefits required by COBRA or applicable law and any rights
Employee may have to severance under the Company's standard severance policy. In
addition, all vesting of Employee's unvested Stock Awards previously granted to
him by the Company shall cease and none of such unvested Stock Awards shall be
exercisable following the date of such termination. The foregoing shall be in
addition to, and not in lieu of, any and all other rights and remedies which may
be available to the Company under the circumstances, whether at law or in
equity.
(c) Delay of Payments. If at the time of Employee's
termination of employment with the Company Employee is a "specified employee" as
defined in Section 409A of the Internal Revenue Code of 1986, as amended (the
"Code") , as determined by the Company in accordance with Section 409A of the
Code, and the deferral of the commencement of any payments or benefits otherwise
payable hereunder as a result of such termination of employment is necessary in
order to prevent any accelerated or additional tax under Section 409A of the
Code, then the Company will defer the commencement of the payment of any such
payments or benefits hereunder (without any reduction in such payments or
benefits ultimately paid or provided to Employee) until the date that is at
least six (6) months following Employee's termination of employment with the
Company (or the earliest date as is permitted
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under Section 409A of the Code).
(d) Release. As a condition to Employee's receipt of any
post-termination benefits pursuant to Section 1(a) above, Employee shall execute
and not revoke a general release of all claims in favor of the Company (the
"Release") in the form attached hereto as Exhibit A. Employee's Release shall be
deemed effective on the day following the expiration of any applicable
revocation period. In the event Employee does not sign and not revoke the
Release within fifty-five (55) day period following the date of Employee's
termination of employment, Employee shall not be entitled to the aforesaid
payments and benefits.
(e) Exclusive Remedy. Except as otherwise expressly required
by law (e.g., COBRA) or as specifically provided herein, all of Employee's
rights to salary, severance, benefits, bonuses and other amounts hereunder (if
any) accruing after the termination of Employee's employment shall cease upon
such termination. In the event of a termination of Employee's employment with
the Company, Employee's sole remedy shall be to receive the payments and
benefits described in this Section 2.
(f) No Mitigation. Employee shall not be required to
mitigate the amount of any payment provided for in this Section 2 by seeking
other employment or otherwise, nor shall the amount of any payment or benefit
provided for in this Section 2 be reduced by any compensation earned by Employee
as the result of employment by another employer or self-employment or by
retirement benefits; provided, however, that loans, advances or other amounts
owed by Employee to the Company may be offset by the Company against amounts
payable to Employee under this Section 2.
(g) Return of the Company's Property. If Employee's
employment is terminated for any reason, the Company shall have the right, at
its option, to require Employee to vacate his or her offices prior to or on the
effective date of termination and to cease all activities on the Company's
behalf. Upon the termination of his or her employment in any manner, as a
condition to Employee's receipt of any post-termination benefits described in
this Agreement, Employee shall immediately surrender to the Company all lists,
books and records of, or in connection with, the Company's business, and all
other property belonging to the Company, it being distinctly understood that all
such lists, books and records, and other documents, are the property of the
Company. Employee shall deliver to the Company a signed statement certifying
compliance with this Section 2(g) prior to the receipt of any post-termination
benefits described in this Agreement.
(h) Best Pay Provision.
(i) If any payment or benefit Employee would receive
under this Agreement, when combined with any other payment or benefit Employee
receives pursuant to the termination of Employee's employment with the Company
("Payment"), would (A) constitute a "parachute payment" within the meaning of
Section 280G of the Code, and (B) but for this sentence, be subject to the
excise tax imposed by Section 4999 of the Code (the "Excise Tax"), then such
Payment shall be either (1) the full amount of such Payment or (2) such lesser
amount (with cash payments being reduced before stock option compensation) as
would result in no portion of the Payment being subject to the Excise Tax,
whichever of the foregoing amounts, taking into account the applicable federal,
state and local employment taxes, income taxes, and the Excise Tax, results in
Employee's receipt, on an after-tax basis, of the greater amount of the Payment
notwithstanding that all or some portion of the Payment
may be subject to the Excise Tax.
(ii) All determinations required to be made under
this Section 2(h), including whether and to what extent the Payments shall be
reduced and the assumptions to be utilized in arriving at such determination,
shall be made by the nationally recognized certified public accounting firm used
by the Company immediately prior to the effective date of the Change in Control
or, if such firm declines to
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serve, such other nationally recognized certified public accounting firm as may
be designated by the Company(the "Accounting Firm"). The Accounting Firm shall
provide detailed supporting calculations both to Employee and the Company at
such time as is requested by the Company. All fees and expenses of the
Accounting Firm shall be borne solely by the Company. For purposes of making the
calculations required by this Section 2(h), the Accounting Firm may make
reasonable assumptions and approximations concerning applicable taxes and may
rely on reasonable, good-faith interpretations concerning the application of
Sections 280G and 4999 of the Code.
3. Confidentiality and Proprietary Rights. Employee and the
Company have executed the Company's Confidentiality and Proprietary Rights
Agreement, a copy of which is attached to this Agreement as Exhibit B and
incorporated herein by reference. The Company shall be entitled to cease all
severance payments to Employee in the event of his or his or her breach of this
Section 3.
4. Dispute Resolution.
(a) Mediation. In the event of any dispute, claim or
controversy based on, arising out of or relating to Employee's employment or
this Agreement (a "Dispute"), the parties shall attempt to resolve the dispute
in non-binding mediation in accordance with the National Rules for the
Resolution of Employment Disputes (the "Rules") of the American Arbitration
Association ("AAA"). If the parties are unable to agree upon a mediator, one
shall be appointed by the AAA in accordance with its Rules. Each party shall pay
the fees of its own attorneys and all other expenses connected with presenting
its case. Other costs of the mediation, including the cost of any record or
transcripts of the mediation, AAA's administrative fees, the fee of the
mediator, and all other fees and costs, shall be borne by the Company. If the
matter has not been resolved pursuant to the aforesaid mediation procedure
within thirty (30) days of the commencement of such procedure, or such other
period as the parties agree, either party may submit the dispute to arbitration
pursuant to Section 4(b) below.
(b) Arbitration. Any Dispute not settled pursuant to Section
4(a) above shall be settled by final and binding arbitration in San Diego,
California, before a single neutral arbitrator in accordance with the Rules of
the AAA, and judgment on the award rendered by the arbitrator may be entered in
any court having jurisdiction. Arbitration may be compelled pursuant to the
California Arbitration Act (Code of Civil Procedure xx.xx. 1280 et seq.). If the
parties are unable to agree upon an arbitrator, one shall be appointed by the
AAA in accordance with its Rules. Each party shall pay the fees of its own
attorneys, the expenses of its witnesses and all other expenses connected with
presenting its case; however, Employee and the Company agree that, to the extent
permitted by law, the arbitrator shall award reasonable attorneys' fees to the
prevailing party. Other costs of the arbitration, including the cost of any
record or transcripts of the arbitration, AAA's administrative fees, the fee of
the arbitrator, and all other fees and costs, shall be borne by the Company.
(c) Other Relief. This Section 4 is intended to be the
exclusive method for resolving any and all claims by the parties against each
other for payment of damages under this Agreement or relating to Employee's
employment; provided, however, that neither this Agreement nor the submission to
mediation or arbitration shall limit the parties' right to seek provisional
relief, including without limitation injunctive relief, in any court of
competent jurisdiction pursuant to California Code of Civil Procedure ss. 1281.8
or any similar statute of an applicable jurisdiction. Seeking any such relief
shall not be deemed to be a waiver of such party's right to compel arbitration.
Both Employee and the Company expressly waive their right to a jury trial.
5. At-Will Employment Relationship. Employee's employment with the
Company is at-will and not for any specified period and may be terminated at any
time, with or without Cause or advance notice, by either Employee or the
Company. Any change to the at-will employment relationship must be by specific,
written agreement signed by Employee and an authorized representative of the
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Company. Nothing in this Agreement is intended to or should be construed to
contradict, modify or alter this at-will relationship.
6. General Provisions.
6.1 Successors and Assigns. The rights of the Company under
this Agreement may, without the consent of Employee, be assigned by the Company,
in its sole and unfettered discretion, to any person, firm, corporation or other
business entity which at any time, whether by purchase, merger or otherwise,
directly or indirectly, acquires all or substantially all of the assets or
business of the Company. The Company will require any successor (whether direct
or indirect, by purchase, merger or otherwise) to all or substantially all of
the business or assets of the Company expressly to assume and to agree to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession had taken place;
provided, however, that no such assumption shall relieve the Company of its
obligations hereunder. As used in this Agreement, the "Company" shall mean the
Company as hereinbefore defined and any successor to its business and/or assets
as aforesaid which assumes and agrees to perform this Agreement by operation of
law or otherwise. Employee shall not be entitled to assign any of Employee's
rights or obligations under this Agreement. This Agreement shall inure to the
benefit of and be enforceable by Employee's personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees and
legatees.
6.2 Severability. In the event any provision of this
Agreement is found to be unenforceable by an arbitrator or court of competent
jurisdiction, such provision shall be deemed modified to the extent necessary to
allow enforceability of the provision as so limited, it being intended that the
parties shall receive the benefit contemplated herein to the fullest extent
permitted by law. If a deemed modification is not satisfactory in the judgment
of such arbitrator or court, the unenforceable provision shall be deemed
deleted, and the validity and enforceability of the remaining provisions shall
not be affected thereby.
6.3 Interpretation; Construction. The headings set forth in
this Agreement are for convenience only and shall not be used in interpreting
this Agreement. This Agreement has been drafted by legal counsel representing
the Company, but Employee has participated in the negotiation of its terms.
Furthermore, Employee acknowledges that Employee has had an opportunity to
review and revise the Agreement and have it reviewed by legal counsel, if
desired, and, therefore, the normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall not be employed
in the interpretation of this Agreement. Either party's failure to enforce any
provision of this Agreement shall not in any way be construed as a waiver of any
such provision, or prevent that party thereafter from enforcing each and every
other provision of this Agreement.
6.4 Governing Law and Venue. This Agreement will be governed
by and construed in accordance with the laws of the United States and the State
of California applicable to contracts made and to be performed wholly within
such State, and without regard to the conflicts of laws principles thereof. Any
suit brought hereon shall be brought in the state or federal courts sitting in
San Diego, California, the Parties hereby waiving any claim or defense that such
forum is not convenient or proper. Each party hereby agrees that any such court
shall have in personam jurisdiction over it and consents to service of process
in any manner authorized by California law.
6.5 Notices. Any notice required or permitted by this
Agreement shall be in writing and shall be delivered as follows with notice
deemed given as indicated: (a) by personal delivery when delivered personally;
(b) by overnight courier upon written verification of receipt; (c) by telecopy
or facsimile transmission upon acknowledgment of receipt of electronic
transmission; or (d) by certified or registered mail, return receipt requested,
upon verification of receipt. Notice shall be sent to Employee at the address
set forth on the signature page below and to the Company at its principal place
of business, or such other address as either party may specify in writing.
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6.6 Survival. Sections 1 ("Definitions"), 2 ("Severance"),
3 ("Confidentiality and Proprietary Rights"), 4 ("Dispute Resolution") and 6
("General Provisions") of this Agreement shall survive termination of Employee's
employment by the Company.
6.7 Entire Agreement. This Agreement and the Company
Confidentiality and Proprietary Rights Agreement incorporated herein by
reference together constitute the entire agreement between the parties in
respect of the subject matter contained herein and therein and supersede all
prior or simultaneous representations, discussions, negotiations, and
agreements, whether written or oral. [For Xxxxxxxxxxxx and Xxxxxxxxx only:
Notwithstanding the foregoing, nothing in this Agreement shall supersede the
severance provisions set forth in that certain offer letter dated as of _____,
between Employee and the Company.] This Agreement may be amended or modified
only with the written consent of Employee and an authorized representative of
the Company. No oral waiver, amendment or modification will be effective under
any circumstances whatsoever.
6.8 Code Section 409A Exempt. The compensation and benefits
payable under this Agreement, including without limitation the severance
benefits described in Section 4, are not intended to constitute "nonqualified
deferred compensation" within the meaning of Section 409A of the Code. To the
extent applicable, this Agreement shall be interpreted in accordance with Code
Section 409A and Department of Treasury regulations and other interpretive
guidance issued thereunder. If the Company and Employee determine that any
compensation or benefits payable under this Agreement may be or become subject
to Code Section 409A and related Department of Treasury guidance, the Company
and Employee agree to amend this Agreement or adopt other policies or procedures
(including amendments, policies and procedures with retroactive effect), or take
such other actions as the Company and Employee deem necessary or appropriate to
(a) exempt the compensation and benefits payable under this Agreement from Code
Section 409A and/or preserve the intended tax treatment of the compensation and
benefits provided with respect to this Agreement, or (b) comply with the
requirements of Code Section 409A and related Department of Treasury guidance.
6.9 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
(Signature Page Follows)
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THE PARTIES TO THIS AGREEMENT HAVE READ THE FOREGOING AGREEMENT
AND FULLY UNDERSTAND EACH AND EVERY PROVISION CONTAINED HEREIN. WHEREFORE, THE
PARTIES HAVE EXECUTED THIS AGREEMENT ON THE DATES SHOWN BELOW.
LIGAND PHARMACEUTICALS INCORPORATED
Dated: -------------------- By: -----------------------------
Name: ---------------------------
Title: --------------------------
EMPLOYEE
Dated: ------------------- -------------------------------
Address: ------------------
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EXHIBIT A
GENERAL RELEASE OF CLAIMS
[The language in this Release may change based on legal developments
and evolving best practices; this form is provided as an example of what will be
included in the final Release document.]
This General Release of Claims ("Release") is entered into as of this
_____ day of ________, ____, between ________ ("Employee"), and Ligand
Pharmaceuticals Incorporated, a Delaware corporation (the "Company")
(collectively referred to herein as the "Parties").
WHEREAS, Employee and the Company are parties to that certain Change in
Control Severance Agreement dated as of ________, 2007 (the "Agreement");
WHEREAS, the Parties agree that Employee is entitled to certain
severance benefits under the Agreement, subject to Employee's execution of this
Release; and
WHEREAS, the Company and Employee now wish to fully and finally to
resolve all matters between them.
NOW, THEREFORE, in consideration of, and subject to, the
severance benefits payable to Employee pursuant to the Agreement, the adequacy
of which is hereby acknowledged by Employee, and which Employee acknowledges
that he or she would not otherwise be entitled to receive, Employee and the
Company hereby agree as follows:
1. General Release of Claims by Employee.
(a) Employee, on behalf of himself or herself and his or her
executors, heirs, administrators, representatives and assigns, hereby agrees to
release and forever discharge the Company and all predecessors, successors and
their respective parent corporations, affiliates, related, and/or subsidiary
entities, and all of their past and present investors, directors, shareholders,
officers, general or limited partners, employees, attorneys, agents and
representatives, and the employee benefit plans in which Employee is or has been
a participant by virtue of his or her employment with or service to the Company
(collectively, the "Company Releasees"), from any and all claims, debts,
demands, accounts, judgments, rights, causes of action, equitable relief,
damages, costs, charges, complaints, obligations, promises, agreements,
controversies, suits, expenses, compensation, responsibility and liability of
every kind and character whatsoever (including attorneys' fees and costs),
whether in law or equity, known or unknown, asserted or unasserted, suspected or
unsuspected (collectively, "Claims"), which Employee has or may have had against
such entities based on any events or circumstances arising or occurring on or
prior to the date hereof or on or prior to the date hereof, arising directly or
indirectly out of, relating to, or in any other way involving in any manner
whatsoever Employee's employment by or service to the Company or the termination
thereof, including any and all claims arising under federal, state, or local
laws relating to employment, including without limitation claims of wrongful
discharge, breach of express or implied contract, fraud, misrepresentation,
defamation, or liability in tort, and claims of any kind that may be brought in
any court or administrative agency including, without limitation, claims under
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Section 2000,
et seq.; the Americans with Disabilities Act, as amended, 42 U.S.C. ss. 12101
et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. ss. 701 et seq.;
the Civil Rights Act of 1866, and the Civil Rights Act of 1991; 42 U.S.C.
Section 1981, et seq.; the Age Discrimination in Employment Act, as amended,
29 U.S.C. Section 621, et seq. (the "ADEA"); the Equal Pay Act, as amended,
29 U.S.C. Section 206(d); regulations of the Office of Federal Contract
Compliance, 41 C.F.R. Section 60, et seq.; the Family and Medical Leave Act, as
amended, 29 U.S.C. ss. 2601 et seq.; the Fair Labor Standards Act of 1938, as
amended, 29 U.S.C. ss. 201 et seq.; the Employee Retirement Income Security Act,
as amended, 29 U.S.C. ss. 1001 et seq.; and the California Fair Employment and
Housing Act, California Government Code Section 12940, et seq.
Notwithstanding the generality of the foregoing, Employee does not
release the following claims:
(i) Claims for unemployment compensation or any state
disability insurance benefits pursuant to the terms of applicable state
law;
(ii) Claims for workers' compensation insurance benefits under
the terms of any worker's compensation insurance policy or fund of the
Company;
(iii) Claims pursuant to the terms and conditions of the
federal law known as COBRA;
(iv) Claims for indemnity under the bylaws of the Company, as
provided for by Delaware law or under any applicable insurance policy
with respect to Employee's liability as an employee, director or
officer of the Company;
(v) Claims based on any right Employee may have to enforce the
Company's executory obligations under the Agreement; and
(vi) Claims Employee may have to vested or earned compensation
and benefits.
(b) EMPLOYEE ACKNOWLEDGES THAT HE OR SHE HAS BEEN
ADVISED OF 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 HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM OR HER, MUST HAVE MATERIALLY
AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR."
BEING AWARE OF SAID CODE SECTION, EMPLOYEE HEREBY EXPRESSLY WAIVES ANY
RIGHTS HE OR SHE MAY HAVE THEREUNDER, AS WELL AS UNDER ANY OTHER STATUTES OR
COMMON LAW PRINCIPLES OF SIMILAR EFFECT.
(c) Employee acknowledges that this Release was presented to
him or her on the date indicated above and that Employee is entitled to have
twenty-one (21) days' time in which to consider it. Employee further
acknowledges that the Company has advised him or her that he or she is waiving
his or her rights under the ADEA, and that Employee may obtain advice concerning
this Release from an attorney of his or her choice, and Employee has had
sufficient time to consider the terms of this Release. Employee represents and
acknowledges that if Employee executes this Release before twenty-one (21) days
have elapsed, Employee does so knowingly, voluntarily, and upon the advice and
with the approval of Employee's legal counsel (if any), and that Employee
voluntarily waives any remaining consideration period.
(d) Employee understands that after executing this Release,
Employee has the right to revoke it within seven (7) days after his or her
execution of it. Employee understands that this Release will not become
effective and enforceable unless the seven (7) day revocation period passes and
Employee does not revoke the Release in writing. Employee understands that this
Release may not be revoked after the seven (7) day revocation period has passed.
Employee also understands that any revocation of this Release must be made in
writing and delivered to the Company at its principal place of business within
the seven (7) day period.
(e) Employee understands that this Release shall become
effective, irrevocable, and binding upon Employee on the eighth (8th) day after
my execution of it, so long as Employee has not revoked it within the time
period and in the manner specified in clause (d) above. Employee further
understands that Employee will not be given any severance benefits under the
Agreement until the effective date of this Release.
2. No Assignment. Employee represents and warrants to the Company
Releasees that there has been no assignment or other transfer of any interest in
any Claim that Employee may have against the Company Releasees, or any of them.
Employee agrees to indemnify and hold harmless the Company Releasees from any
liability, claims, demands, damages, costs, expenses and attorneys' fees
incurred as a result of any such assignment or transfer from Employee.
3. Severability. In the event any provision of this Release is found to
be unenforceable by an arbitrator or court of competent jurisdiction, such
provision shall be deemed modified to the extent necessary to allow
enforceability of the provision as so limited, it being intended that the
parties shall receive the benefit contemplated herein to the fullest extent
permitted by law. If a deemed modification is not satisfactory in the judgment
of such arbitrator or court, the unenforceable provision shall be deemed
deleted, and the validity and enforceability of the remaining provisions shall
not be affected thereby.
4. Interpretation; Construction. The headings set forth in this Release
are for convenience only and shall not be used in interpreting this Agreement.
This Release has been drafted by legal counsel representing the Company, but
Employee has participated in the negotiation of its terms. Furthermore, Employee
acknowledges that Employee has had an opportunity to review and revise the
Release and have it reviewed by legal counsel, if desired, and, therefore, the
normal rule of construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in the interpretation
of this Release. Either party's failure to enforce any provision of this Release
shall not in any way be construed as a waiver of any such provision, or prevent
that party thereafter from enforcing each and every other provision of this
Release.
5. Governing Law and Venue. This Release will be governed by and
construed in accordance with the laws of the United States of America and the
State of California applicable to contracts made and to be performed wholly
within such State, and without regard to the conflicts of laws principles
thereof. Any suit brought hereon shall be brought in the state or federal courts
sitting in San Diego, California, the Parties hereby waiving any claim or
defense that such forum is not convenient or proper. Each party hereby agrees
that any such court shall have in personam jurisdiction over it and consents to
service of process in any manner authorized by California law.
6. Entire Agreement. This Release and the Agreement constitute the
entire agreement of the Parties in respect of the subject matter contained
herein and therein and supersede all prior or simultaneous representations,
discussions, negotiations and agreements, whether written or oral. This Release
may be amended or modified only with the written consent of Employee and an
authorized representative of the Company. No oral waiver, amendment or
modification will be effective under any circumstances whatsoever.
7. Counterparts. This Release may be executed in multiple counterparts,
each of which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
(Signature Page Follows)
IN WITNESS WHEREOF, and intending to be legally bound, the Parties have
executed the foregoing Release as of the date first written above.
EMPLOYEE LIGAND PHARMACEUTICALS INCORPORATED
By: --------------------------------
----------------------------------
Print Name: --------------------- Print Name: ------------------------
Title: -----------------------------
EXHIBIT B
COMPANY CONFIDENTIALITY AND PROPRIETARY RIGHTS AGREEMENT
[Attached]
SCHEDULE TO EXHIBIT 10.1
The preceding form of Executive Officer Change in Control Severance
Agreement was entered into between the Company and the following persons as of
August 17, 2007:
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Name of Executive Title
------------------------------------------------ -----------------------------------------------------------
------------------------------------------------ -----------------------------------------------------------
Xxxx X. Xxxxxxx Chief Executive Officer and President
------------------------------------------------ -----------------------------------------------------------
------------------------------------------------ -----------------------------------------------------------
Xxxxxxx X. Xxxxxxx, X.X. Vice President, General Counsel and Secretary
------------------------------------------------ -----------------------------------------------------------
------------------------------------------------ -----------------------------------------------------------
Xxxxx X. Xxxxxxxxxxxx, M.D., Ph.D. Vice President, Clinical Research
------------------------------------------------ -----------------------------------------------------------
------------------------------------------------ -----------------------------------------------------------
Xxxx Xxxxx, Ph.D., M.B.A. Vice President, Business Development
------------------------------------------------ -----------------------------------------------------------
------------------------------------------------ -----------------------------------------------------------
Xxxxxx X. Xxxxxxxxx, Ph.D. Vice President, Discovery Research
------------------------------------------------ -----------------------------------------------------------
------------------------------------------------ -----------------------------------------------------------
Xxxx Xxxxx, C.P.A. Vice President, Finance and Chief Financial Officer
------------------------------------------------ -----------------------------------------------------------
