FORM OF EMPLOYMENT AGREEMENT
Exhibit
10.1
FORM
OF
This
Employment Agreement (“Agreement”), effective as of this _____ day of _______,
2007, 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 ___________, 2007 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 notice of nonextension of the term
is
given by either the Employee or 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.
-1-
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, 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) and shall include any termination of
the
Employee’s employment upon expiration of the term of this Agreement due to the
Company giving written notice of its intention not to extend the term of this
Agreement as provided in paragraph 3(a); or
(ii) Employee’s
resignation from the Company’s employ for Good Reason in accordance with the
terms hereof. “Good Reason” shall mean, unless remedied by the
Company within thirty (30) days after the receipt of written notice from
the Employee as provided below or consented to in writing by the
-2-
Employee,
(A) the material diminution of any material duties or responsibilities of the
Employee; or (B) a material reduction in the Employee's base salary;provided,
however, that the Employee must have given written notice to the Company of
the
existence of any such condition within ninety (90) days after the initial
existence thereof (and the failure to provide such timely notice will constitute
a waiver of the Employee’s ability to terminate employment for Good Reason as a
result of such condition), and the Company will have a period of thirty (30)
days from receipt of such written notice during which it may remedy the
condition; provided further, however, that any termination of employment by
the
Employee for Good Reason must occur not later than one hundred eighty (180)
days
following the initial existence of the condition giving rise to such Good
Reason.
(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 [ ] 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 ____________, ______, 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, and the severance payment described in Section 6(b)(i)(B) shall
be
paid in a lump sum within thirty (30) days of the termination, in each case
subject to the requirements of Section 6(b)(iii) below.
-3-
(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, such
amount to be paid no later than ten (10) days prior to the date such taxes
are
due) of the Employee and Employee’s spouse and eligible dependents under any
group health plans of the Company on the date of such termination 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 Internal Revenue Code of 1986, as amended (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, then such payments or forgiveness, as the case may
be, shall
-4-
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
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 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);
-5-
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 (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.
-6-
(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 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. It is intended that this Agreement
will comply with Section 409A of the Code (and any regulations and guidelines
issued thereunder) to the extent the Agreement is subject thereto, and the
Agreement shall be interpreted on the basis consistent with such
intent.
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
-7-
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
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
|
|
By: Xxxx
X. Xxxxxxxx
Chairman
of the Board, President
and
Chief Executive Officer
|
|
Employee
|
-8-
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 ________, 2007 (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
A-1
of
a
covenant of good faith and fair dealing (both express and implied), promissory
estoppel, negligent 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.
A-2
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
A-3
that
the
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.
A-4
IN
WITNESS WHEREOF, the Parties have executed this Agreement on the respective
dates set forth below.
|
XOMA
(US) LLC
|
|
By:
_______________________________
|
|
Title:
______________________________
|
|
Date:
______________________________
|
|
EMPLOYEE
|
|
Name
_____________________________
|
|
Date:
_____________________________
|
A-5
Terms
of
Individual Executive Officer Employment Agreements
(to
be
read in conjunction with Form of Employment Agreement)
|
Name
|
Title
|
Current
Salary |
Paragraph
6(b)(i) |
Paragraph
6(b)(ii) |
Paragraph
6(b)(iv) |
|||
|
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
|
$310,000
|
.75
|
9
months
|
9
months
|
6
months
|
$8,000
|
|
|
J.
Xxxxx Xxxxx II
|
Vice
President, Finance and Chief Financial Officer
|
$283,000
|
.75
|
9
months
|
9
months
|
6
months
|
$8,000
|
|
