BONUS AND GENERAL RELEASE AGREEMENT
Exhibit
10.1
In
exchange for the terms, conditions and releases set forth below, Nektar
Therapeutics (“Nektar” or
the “Company”)
and Xxxxx X. Xxxx (“you”)
hereby agree as follows:
1. Effective
Date. This Agreement will become effective on the eighth day
after you sign and deliver this Agreement to the Company (the “Effective
Date”), provided that you do not revoke this Bonus and General Release
Agreement (this “Agreement”)
before such date pursuant to Paragraph 8(c) below.
2. Resignation. You
hereby resign as an officer, director, employee, member, manager and in any
other capacity with the Company and each of its affiliates, effective as of December 31, 2008 (the
“Separation
Date”). The Company and each of its affiliates hereby accept
such resignation effective as of the Separation Date. You waive any
right or claim to reinstatement as an employee of the Company or any of its
affiliates by which you were previously employed. Following the
Separation Date, you shall not be authorized to transact any business on behalf
of the Company or any its affiliates or subsidiaries.
3. Transaction
Bonus. On October 20, 2008, the Company entered into an asset
purchase agreement with Novartis Pharmaceuticals Corporation (and certain of its
affiliates) pursuant to which the Company had agreed to sell and transfer
certain assets of the pulmonary business unit (the “Transaction”). In
recognition of your leadership role in the Transaction, provided that the
Transaction is finally closed and you comply with all the terms of this
Agreement, the Company will pay you a bonus in the amount of two hundred fifty
thousand dollars ($250,000.00) within the three (3) business days following the
later of the closing of the Transaction or the Separation Date.
4. Separation
Consideration. Provided that you comply with all of the terms
of this Agreement, the Company shall provide you with the following severance
benefits (the “Separation
Benefits”): (a) the Company will make a separation
payment to you within three (3) business days following the Effective Date in
the amount of six hundred thirty thousand two hundred ninety-six dollars
($630,296.00), less all applicable withholdings and standard deductions; (b) all
of your outstanding unvested stock options to purchase the Company’s common
stock will become immediately and automatically vested in full; and (c) all of
your outstanding and vested stock options (including those stock options that
were automatically vested pursuant to this paragraph 4) will remain exercisable
for a period of fifteen (15) months following the Separation Date and, to the
extent not exercised on or before the last day of such period shall terminate at
the close of business on such day; provided, however, that in all events
each of your stock options shall be subject to earlier termination at the end of
the maximum term of such stock option or in connection with a change in control
of the Company as provided in the applicable plan and/or option agreement that
evidences such stock option (please refer to Paragraph 19 regarding the
expiration of any restricted stock unit awards that may be held by you, if any);
and (d) provided that you timely exercise your right to continue your health
insurance coverage under the Consolidated Omnibus Budget Reconciliation Act of
1985 (“COBRA”),
the Company will pay the monthly health insurance coverage premiums for you and
your eligible dependents for a period commencing on the Separation Date and
ending on the earlier to occur of (x) the twelve month anniversary of the
Separation Date, and (y) the date you become eligible to receive health
insurance coverage from a subsequent employer. You shall notify the
Company promptly upon accepting employment with any other person or entity, but
no later than three calendar days prior to commencing such employment, and at
the same time, you shall notify the Company whether you are eligible to receive
health coverage in connection with such employment. To the extent
that the payment of any COBRA premiums pursuant to the foregoing clause (c) is
taxable to you, any such payment shall be made to you on or before the last day
of your taxable year following the taxable year in which the related expense was
incurred, your right to payment of such premiums shall not be subject to
liquidation or exchange for another benefit, and the amount of such benefits
that you receive in one taxable year shall not affect the amount of such
benefits that you receive in any other taxable year. You acknowledge
that the Separation Benefits include payments that you would not otherwise be
entitled to receive, now or in the future, without entering into this Agreement,
and constitute valuable consideration for the promises and undertakings set
forth in this Agreement.
5. Payment of Salary
and Expenses. On your
Separation Date, the Company will pay to you all accrued and unpaid salary and
any accrued but unused paid time off as of the Separation Date (collectively,
the “Accrued
Obligations”). In the event that you have a negative paid time
off balance, you agree that such amount will be deducted from the Company’s
payment to you of your Accrued Obligations. By signing below, you
acknowledge and represent that, upon receiving the Accrued Obligations, you will
have received all salary, wages, bonuses, accrued vacation and paid time off,
and all other benefits and compensation due to you through the Separation
Date. You agree that, within ten (10) days after the Separation Date,
you will submit your final documented expense reimbursement statement reflecting
all business expenses you incurred through the Separation Date, if any, for
which you seek reimbursement. The Company will reimburse you for
these expenses pursuant to its regular business practice.
6. Return of
Property; Proprietary Information Agreement. Within five days
following the Separation Date, you shall return to the Company any and all
property of the Company or any of its affiliates (collectively, the “Company
Group”), including, but not limited to, documents (in whatever paper or
electronic form they exist), things relating to the business of the Company
Group and all intellectual, electronic and physical property belonging to the
Company Group that is in your possession or control, including but not limited
to any computers, cell phones, blackberries, emails, documents, power point
presentations, business plans, financial plans, personnel information and/or
financial statements belonging to the Company Group or that contain confidential
information of the Company Group; provided that you will be allowed to retain
your company lap top provided that you allow the Company’s IT personnel to make
a copy of the data on the laptop. Your signature below constitutes
your certification that you have returned all documents and other items provided
to you by the Company Group, developed or obtained by you as a result of your
employment with the Company Group, or otherwise belonging to the Company
Group. You hereby reaffirm and agree to observe and abide by the
terms of your Employee Agreement (the “Employee
Agreement”) with the Company, specifically including the provisions
therein regarding assignment of inventions, nondisclosure of the Company’s trade
secrets and confidential and proprietary information, and non-solicitation of
employees of the Company Group. The obligations under the Employee
Agreement that survive the termination of your employment are specifically
incorporated herein by reference.
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7. Release of
Claims. You agree that the foregoing consideration represents
settlement in full of all outstanding obligations owed to you by the Company and
its officers, directors, agents and employees, and is satisfactory consideration
for the release of claims set forth herein. On behalf of yourself,
and your respective heirs, family members, executors and assigns, you hereby
fully and forever release the Company and its past and present subsidiaries and
affiliates, and each of their past, present and future officers, agents,
directors, employees, investors, stockholders, administrators, attorneys,
representatives, affiliates, divisions, subsidiaries, parents, predecessor and
successor corporations, and assigns (the “Releasees”),
from, and agree not to xxx or institute, prosecute or pursue, or cause to be
instituted, prosecuted, or pursued, any claim, cause of action, charge,
controversy, duty, obligation, demand, loss, cost, debt, damages, penalties,
judgment, order, or liability relating to or arising out of any matters of any
kind, whether presently known or unknown, suspected or unsuspected, that you may
possess against any of the Releasees arising from any omissions, acts or facts
that have occurred up until and including the date you sign this Agreement
(collectively “Claims”). The
released Claims include, but are not limited to: (i) any and all
Claims relating to or arising from your employment relationship with the Company
and the termination of that relationship, including any Claims with respect to
wages, bonuses, commissions, vacation pay, or any other form or amount of
compensation, or any Claim arising out of that certain letter agreement between
you and the Company dated September 18, 2007 (the “2007 Letter
Agreement”) and/or the Company’s Change of Control Severance Plan; (ii)
any and all Claims relating to, or arising from, your right to receive or
purchase any form of equity in the Company or any Releasee, 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; (iii) any and all Claims for wrongful discharge of
employment; termination in violation of public policy; discrimination;
harassment; retaliation; breach of contract, both express and implied; breach 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; (iv) any and all Claims
for violation of any federal, state or municipal law, regulation, ordinance,
constitution or common law, 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 Xxxxxxxx-Xxxxx Act; the
California Fair Employment and Housing Act; the California Family Rights Act;
and the California Labor Code, including, but not limited to section 201, et seq,. section 970, et seq., sections 1400-1408;
and all amendments to each such Act as well as the regulations issued
thereunder; and (v) any and all Claims for attorneys' fees and
costs.
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Notwithstanding
the foregoing, nothing in this Paragraph 7 shall release (i) any obligations
owed by the Company expressly described in this Agreement, (ii) any claims you
may have for indemnification under any indemnification agreement that you have
with the Company, any of the Company’s charter documents, or under California
Labor Code Section 2802 or other applicable law, or for coverage under any of
the Company’s directors’ and officers’ liability insurance policies; (iii) your
claims for any benefits that are vested as of the Separation Date under the
Company’s health, welfare or 401(k) plans; (iv) your rights with respect to your
vested equity awards referenced in Paragraph 4; (v) your claims for underlying
workers’ compensation benefits; or (vi) any claims pursuant to Paragraph 8(e) of
this Agreement.
8. Acknowledgment of
Waiver of Claims under ADEA. You acknowledge that you are
waiving and releasing any rights you may have under the Age Discrimination in
Employment Act of 1967 (“ADEA”) and
that this waiver and release is knowing and voluntary. You 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. You
acknowledge that the consideration given for this waiver and release Agreement
is in addition to anything of value to which you were already
entitled. You further acknowledge that you have been advised by this
writing that:
(a) you
should consult with an attorney prior to executing
this Agreement;
(b) you
have at least twenty-one (21) days within which to consider this Agreement and,
if you wish to execute this Agreement prior to expiration of such 21-day period,
you should execute the Acknowledgement and Waiver attached hereto as Exhibit
A;
(c) you
have seven (7) days following the date that you sign this Agreement to revoke
the Agreement; provided, however, that any such revocation must be in writing
and delivered to the Company’s General Counsel at the Company’s principal
office, by close of business on or before the seventh day from the date that you
sign this Agreement;
(d) this
Agreement shall not be effective until the eighth day after you execute and do
not revoke this Agreement; and
(e) nothing
in this Agreement prevents or precludes you from challenging or seeking a
determination in good faith of the validity of this waiver under the ADEA, nor
does it impose any condition precedent, penalties or costs from doing so, unless
specifically authorized by federal law.
9. Civil Code
Section 1542/Unknown Claims. You represent that you are not
aware of any claims against the Releasees other than the claims that are
released by this Agreement. You acknowledge that you have had the
opportunity to be advised by legal counsel and are familiar with the provisions
of California Civil Code 1542, below, 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, you agree to expressly waive any rights you may have
thereunder, as well as under any statute or common law principles of similar
effect.
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10. No Pending or
Future Lawsuits. You represent that you have no lawsuits,
claims, or actions pending in your name, or on behalf of any other person or
entity, against any of the Releasees. You also represent that you do
not intend to bring any claims on your own behalf or on behalf
of any other person or entity against any of the Releasees. You also
promise to opt out of any class or representative action and to take such other
steps as you have the power to take to disassociate yourself from any class or
representative action seeking relief against the Company and/or any other
Releasee regarding any of the claims released in this Agreement.
11. Confidentiality
of Agreement. You agree to keep the existence and terms of this Agreement
in the strictest confidence and, except as required by law, not reveal the
existence or terms of this Agreement to any persons except your immediate
family, your attorney, and your financial advisors (and to them only provided
that they also agree to keep the information completely confidential), and the
court in any proceedings to enforce the terms of this
Agreement.
12. Non-Disparagement. Each
party agrees not to make any oral or written statement that disparages or
criticizes the other party, and in your case, the Company’s management,
employees, products or services, or damages the other party’s reputation or
impairs the other party’s normal operations; provided, however, that nothing in
this Agreement shall prohibit either party from providing truthful information
or testimony in response to any court order, subpoena, or government
investigation, or in connection with any legal proceeding between the Company
and you. For the purposes of this Section 12, the reference to the
Company as a party to this Agreement includes only the Company’s officers that
are subject to Section 16(b) of the Securities Exchange Act of 1934, as amended,
and the members of its Board of Directors.
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13. Litigation/Audit
Cooperation. Following the Separation Date, you shall
reasonably cooperate with the Company or any other member of the Company Group
in connection with: (a) any internal or governmental investigation or
administrative, regulatory, arbitral or judicial proceeding involving any member
of the Company Group with respect to matters relating to your employment with or
service as a member of the board of directors of any member of the Company Group
(collectively, “Litigation”);
or (b) any audit of the financial statements of any member of the Company Group
with respect to the period of time when you were employed by any member of the
Company Group (“Audit”). You
acknowledge that such cooperation may include, but shall not be limited to, your
making yourself available to the Company or any other member of the Company
Group (or their respective attorneys or auditors) upon reasonable notice for:
(i) interviews, factual investigations, and providing declarations or affidavits
that provide truthful information in connection with any Litigation or Audit;
(ii) appearing at the request of the Company or any member of the Company Group
to give testimony without requiring service of a subpoena or other legal
process; (iii) volunteering to the Company or any member of the Company Group
pertinent information related to any Litigation or Audit; (iv) providing
information and legal representations to the auditors of the Company or any
member of the Company Group, in a form and within a time frame requested by the
Company’s Board of Directors, with respect to the Company or any member of the
Company Group’s opening balance sheet valuation of intangibles and financial
statements for the period in which you were employed by the Company or any
member of the Company Group; and (v) turning over to the Company or any member
of the Company Group any documents relevant to any Litigation or Audit that are
or may come into your possession. The Company shall reimburse you for
reasonable travel expenses incurred in connection with providing the services
under this Paragraph 13, including lodging and meals, upon your submission of
receipts. In the event your assistance to the Company under
this Paragraph 13 exceeds 10 hours in any given calendar month, the Company
shall pay you at a rate of $150 per hour for all time that you incur in
providing the services described in this Paragraph 13 exceeding 10 hours in any
given calendar month. You shall submit an invoice to the Company on
the 15th day of each month following any month in which you provide services
that details the date, amount of time and a description of the services for each
day that you provides services pursuant to this Paragraph 13.
14. Entire
Agreement. Except for the Employee Agreement and the written
awards agreements that evidence your Options and RSUs and any indemnification
agreement you have with the Company, this Agreement constitutes the entire
agreement between you and the Company concerning your employment with and
separation from the Company and all the events leading thereto and associated
therewith, and supersedes and replaces any and all prior agreements and
understandings, both written and oral, concerning your relationship with the
Company (including, without limitation, the 2007 Letter Agreement).
15. No Admission of
Liability. Each party understands and acknowledges that this
Agreement constitutes a compromise and settlement of any and all potential
disputed claims. No action taken by the either party hereto, either
previously or in connection with this Agreement, shall be deemed or construed to
be: (a) an admission of the truth or falsity of any potential claims; or (b) an
acknowledgment or admission by such party of any fault or liability whatsoever
to the other party or to any third party.
16. 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. Similarly,
you represent and warrant that you have the capacity to act on your own behalf
and on behalf of all who might claim through you to bind them to the terms and
conditions of this Agreement. The Company and you each warrant and
represent that there are no liens or claims of lien or assignments in law or
equity or otherwise of or against any of the claims or causes of action released
herein.
17. Solicitation of
Employees. You agree that for a period of twelve (12) months
immediately following the Separation Date, you shall not either directly or
indirectly solicit, induce, recruit or encourage any of the Company’s employees
to terminate their employment with the Company, or attempt to solicit, induce,
recruit, or encourage employees of the Company to become employed or engaged as
a consultant, either for yourself or for any other person or
entity. Furthermore, you understand and acknowledge that the Company
may at its sole discretion notify any new employer of your ongoing rights and
obligations under this Agreement and the Employee Agreement.
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18. Material Breaches
of Agreement. You acknowledge and agree that any breach of
Paragraphs 6, 7, 8, 10, 12, or 17 shall constitute a material breach of the
Agreement and in the case of a breach by you, shall entitle the Company
immediately to recover the consideration described in Paragraph 4 above, except
as provided by law and except for $10,000 of such amount which, in any event,
the parties agree is good and adequate consideration (in and of itself) for the
releases set forth in Paragraph 7. In the event that the Company or
you brings an action to enforce or effect their rights under this Agreement, the
prevailing party shall be entitled to recover their reasonable attorneys’ fees
and expenses incurred in connection with such an action.
19. Restricted Stock
Units. In the event you hold any restrict stock unit awards
that are unvested as of the Separation Date, such awards are hereby cancelled as
of the Separation Date and you have no further rights with respect thereto or in
respect thereof. You hereby acknowledge and agree that, except for
the terms related to your stock options set forth above in Paragraph 4, you have
no further right or benefits under any agreement to receive or acquire any
security or derivative security in or with respect to the Company or any of its
affiliates or subsidiaries.
20. Waivers;
Modifications. No waiver of any provision or consent to any
exception to the terms of this Agreement shall be effective unless in writing
and signed by the party to be bound and, then, only to the specific purpose,
extent and instance so provided. This Agreement may not be modified,
amended, altered or supplemented except by the execution and delivery of a
written agreement executed by you and an authorized representative of the
Company.
21. Severability. If
any provision of the Agreement or the application thereof is held invalid, such
invalidity shall not affect other provisions or applications of the Agreement
which can be given effect without the invalid provisions or
application.
22. Counterparts. The
Agreement may be executed in counterparts, and each counterpart when executed
shall have the efficacy of a signed original. Photographic copies of
such signed counterparts may be used in lieu of the originals for any
purpose.
23. Choice of
Law. The Agreement shall be construed and enforced in
accordance with, and governed by, the laws of the State of
California.
24. Voluntary
Execution of Agreement; Legal Counsel. You and the Company
each recognize that this is a legally binding contract and acknowledge and agree
that each party has had the opportunity to consult with legal counsel of their
choice. Each party has cooperated in the drafting, negotiation and
preparation of this Agreement. Hence, in any construction to be made
of this Agreement, the same shall not be construed against either party on the
basis of that party being the drafter of such language. You agree and
acknowledge that you have read and understand this Agreement, are entering into
it freely and voluntarily, and have been advised to seek counsel prior to
entering into this Agreement and have had ample opportunity to do
so.
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IN WITNESS WHEREOF, the parties hereto
have executed this Agreement as of the date set forth below.
AGREED
AND ACCEPTED:
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/s/
Xxxxxx Xxxxxxx
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/s/
Xxxxx X. Xxxx
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By: Xxxxxx
Xxxxxxx
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Xxxxx
X. Xxxx
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Title:
SVP, Human Resources
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| Date: December 26, 2008 | Date: December 27, 2008 |
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EXHIBIT
A
ACKNOWLEDGEMENT
AND WAIVER
I, Xxxxx
X. Xxxx, hereby acknowledge that I was given 21 days to consider the foregoing
Separation and General Release Agreement and voluntarily chose to sign the
Separation and General Release Agreement prior to the expiration of the 21-day
period.
I declare
under penalty of perjury under the laws of the state of California, that the
foregoing is true and correct.
EXECUTED
this 29th day of December 2008.
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By:
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/s/ Xxxxx X. Xxxx | |
| Xxxxx X. Xxxx | |||
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