SEVERANCE AGREEMENT AND GENERAL RELEASE
Exhibit 10.32
SEVERANCE AGREEMENT AND GENERAL RELEASE
This SEVERANCE AGREEMENT AND GENERAL RELEASE (“Agreement”) is made and entered into by Xxxxxxx
Xxxxxx (“Employee”) and BioCryst Pharmaceuticals, Inc. (“the Company”).
The Company currently employs Employee as Vice President, Finance. The parties desire to
terminate the employment relationship effective December 31, 2008. Employee also desires severance
benefits. The parties have agreed upon acceptable terms as described herein. Employee represents
that he has carefully read the entire Agreement, understands its consequences, and voluntarily
enters into it.
In consideration of the above and the mutual promises set forth below, Employee and the
Company agree as follows:
1. SEPARATION. Employee’s employment with the Company will terminate, effective
December 31, 2008.
2. SEVERANCE BENEFITS. The Company will:
(i) pay Employee severance pay in the amount of $161,713 (less applicable
withholdings) payable in a lump sum on the first regular payday after the revocation period
set forth in paragraph 8 below expires;
(ii) reimburse Employee for the COBRA premiums that he actually pays to continue his
coverage under the Company’s group health/dental plan during the 12-month period immediately
following the effective termination date. Nothing in this Agreement shall constitute a
guarantee of COBRA continuation coverage or benefits. Employee shall be solely responsible
for all obligations in electing COBRA continuation coverage and taking all steps necessary
to qualify for such coverage. In the event that he receives a reimbursement check for a
COBRA premium that he did not actually pay, then he shall return the reimbursement check
immediately to the Company; and
(iii) provide Employee with an executive outplacement assistance package, package and
provider to be chosen by the Company.
The severance benefits afforded under this Agreement are in lieu of any other compensation or
benefits to which Employee otherwise might be entitled.
3. ACCRUED VACATION. The Company will pay Employee for any accrued but untaken
vacation.
4. RELEASE. In consideration of the benefits conferred by this Agreement, EMPLOYEE
(ON BEHALF OF HIMSELF AND HIS ASSIGNS, HEIRS AND OTHER
REPRESENTATIVES) RELEASES THE COMPANY, ITS
PREDECESSORS, SUCCESSORS AND ASSIGNS AND ITS AND/OR THEIR PAST, PRESENT AND FUTURE OWNERS, PARENTS,
SUBSIDIARIES, AFFILIATES, PREDECESSORS, SUCCESSORS, ASSIGNS, OFFICERS, DIRECTORS, EMPLOYEES,
EMPLOYEE BENEFIT PLANS (TOGETHER WITH ALL PLAN ADMINISTRATORS, TRUSTEES, FIDUCIARIES AND INSURERS)
AND AGENTS (“RELEASEES”) FROM ALL CLAIMS AND WAIVES ALL RIGHTS KNOWN OR UNKNOWN, HE
MAY HAVE OR CLAIM TO HAVE RELATING TO HIS EMPLOYMENT WITH THE COMPANY, ITS PREDECESSORS,
SUBSIDIARIES OR AFFILIATES OR HIS SEPARATION THEREFROM arising before the execution of the
Agreement, including but not limited to claims: (i) for discrimination, harassment or
retaliation arising under federal, state or local laws prohibiting age (including but not limited
to claims under the Age Discrimination in Employment Act of 1967 (ADEA), as amended), sex, national
origin, race, religion, disability, veteran status or other protected class discrimination,
harassment or retaliation for protected activity; (ii) for compensation and benefits (including but
not limited to claims under the Employee Retirement Income Security Act of 1974, as amended,
(“ERISA”), Fair Labor Standards Act of 1934 (FLSA), as amended, and similar federal, state, and
local laws; (iii) under federal, state or local law of any nature whatsoever (including but not
limited to constitutional, statutory, tort, express or implied contract or other common law); and
(iv) for attorneys’ fees. The release of claims set forth in this paragraph does not apply to
claims for workers’ compensation benefits or unemployment benefits filed with the applicable state
agencies.
5. AGENCY CHARGES/INVESTIGATIONS. Nothing in this Agreement shall prohibit Employee
from filing a charge or participating in an investigation or proceeding conducted by the U.S. Equal
Employment Opportunity Commission or other governmental agency with jurisdiction concerning the
terms, conditions and privileges of his employment; provided, however, that by signing this
Agreement, Employee waives his right to, and shall not seek or accept, any monetary or other relief
of any nature whatsoever in connection with any such charges, investigations or proceedings.
6. COVENANT NOT TO XXX. Employee will not xxx Releasees on any matters relating to
his employment arising before the execution of this Agreement, including but not limited to claims
under the ADEA, or join as a party with others who may xxx Releasees on any such claims; provided,
however, this paragraph will not bar a challenge under the Older Workers Benefit Protection Act of
1990 (OWBPA), to the enforceability of the waiver and release of ADEA claims set forth in this
Agreement, claims for workers’ compensation or unemployment benefits referenced in paragraph 4
above, or where otherwise prohibited by law. If Employee does not abide by this paragraph, then
(i) he will return all monies received under this Agreement and indemnify Releasees for all
expenses they incur in defending the action, and (ii) Releasees will be relieved of its obligations
hereunder.
7. COMPANY INFORMATION AND PROPERTY. Except as necessary to perform post-termination
consulting services to the Company, Employee shall not at any time
after his employment terminates disclose, use or aid third parties in obtaining or using any
confidential or proprietary Company information or such information of its parents, subsidiaries or
affiliates. Confidential or proprietary information is information relating to the Company,
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parent, subsidiaries or affiliates or any aspect of its business which is not generally available
to the public, the Company’s competitors, or other third parties, or ascertainable through common
sense or general business or technical knowledge. Nothing in this Agreement shall relieve him from
any obligations under any previously or contemporaneously executed confidentiality, proprietary
information or secrecy agreements.
All records, files or other materials maintained by or under the control, custody or
possession of the Company or its agents in their capacity as such shall be and remain the Company’s
property. Employee shall: (i) return all Company property (including, but not limited to, credit
cards; keys; company car, records, files, documents, company manuals, and other documents in
whatever form they exist, whether electronic, hard copy or otherwise and all copies, notes or
summaries thereof) which he received in connection with his employment, with the sole exception of
property that the Company authorizes him to retain during any period in which he is providing
post-termination consulting services to the company; (ii) bring all such records, files, and other
materials up to date before returning them; and (iii) fully cooperate with the Company in winding
up his work and transferring that work to those individuals designated by the Company.
8. RIGHT TO REVIEW AND REVOKE. The Company delivered this Agreement and the Older
Workers Benefit Protection Act Disclosure notice to Employee on December 8, 2008 by e-mail and
desires that he have adequate time and opportunity to review and understand the consequences of
entering into the Agreement. Accordingly, the Company advises him to consult with his attorney
prior to executing it and that he has 45 days within which to consider it. Additionally, he may
not execute this Agreement prior to the effective termination date. In the event that he does not
return an executed copy of the Agreement to Xxxxxx Xxxxxx, Vice President, Human Resources,
BioCryst Pharmaceuticals, Inc., 0000 Xxxxxxxx Xxxx Xxxx, Xxxxx 000, Xxxx, XX 00000 by no later than
the 46th calendar day after receiving it or his effective termination date (whichever occurs
later), it and the obligations of the Company herein shall become null and void, Employee’s
employment will terminate on the effective termination date and he will receive his salary through
that date and pay for accrued but untaken vacation and nothing else. Employee may revoke the
Agreement during the seven (7) day period immediately following his execution of it. The Agreement
will not become effective or enforceable until the revocation period has expired. To revoke the
Agreement, a written notice of revocation must be delivered to Xxxxxx Xxxxxx at the above address.
9. CONFIDENTIALITY AND NONDISPARAGEMENT. Employee represents and warrants that since
receiving this Agreement, he (i) has not made, and going forward will not make, disparaging,
defaming or derogatory remarks about the Company or its products, services, business practices,
directors, officers, managers or employees to anyone; nor (ii) taken, and going forward will not
take, any action that may impair the relations between the Company and its vendors, customers,
employees, or agents or that may be detrimental to or interfere with, the Company or its business.
10. STIPULATION. Employee acknowledges, agrees and hereby stipulates to the following
facts: (i) During his employment with the Company, Employee was allowed to take all leave and
afforded all other rights to which he was entitled under the Family and Medical Leave Act (FMLA);
and (ii) The Company has not in any way interfered with, restrained or
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denied Employee’s exercise
of (or attempt to exercise) any FMLA rights, nor terminated or otherwise discriminated against
Employee for exercising (or attempting to exercise) any such rights.
11. OTHER. Except as expressly provided in this Agreement, this Agreement and, the
Consulting Agreement simultaneously executed and dated December 31, 2008 supersede all other
understandings and agreements, oral or written, between the parties and constitute the sole
agreement between the parties with respect to their subject matter. Each party acknowledges that
no representations, inducements, promises or agreements, oral or written, have been made by any
party or by anyone acting on behalf of any party, which are not embodied in these agreements and no
agreement, statement or promise not contained in these agreements shall be valid or binding on the
parties unless such change or modification is in writing and is signed by the parties. Employee’s
or the Company’s waiver of any breach of a provision of this Agreement shall not waive any
subsequent breach by the other party. If a court of competent jurisdiction holds that any
provision or sub-part thereof contained in this Agreement is invalid, illegal or unenforceable,
that invalidity, illegality or unenforceability shall not affect any other provision in this
Agreement.
This Agreement is intended to avoid all litigation relating to Employee’s employment with the
Company and his separation therefrom; therefore, it is not to be construed as the Company’s
admission of any liability to him — liability which the Company denies.
This Agreement shall apply to, be binding upon and inure to the benefit of the parties’
successors, assigns, heirs and other representatives.
IN WITNESS WHEREOF, the parties have entered into this Agreement on the day and year written
below.
EMPLOYEE REPRESENTS THAT HE HAS CAREFULLY READ THE ENTIRE AGREEMENT, UNDERSTANDS ITS
CONSEQUENCES, AND VOLUNTARILY ENTERS INTO IT.
| /s/ Xxxxxxx Xxxxxx | 12/31/08 | ||||
| Xxxxxxx Xxxxxx | Date | ||||
| BioCryst Pharmaceuticals, Inc. |
|||||
| By: | /s/ Xxxxx X. Xxxxxx | 12/31/08 | |||
| Title: General Counsel | Date | ||||
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