Exhibit 10.1
AGREEMENT, RELEASE AND WAIVER
Xxxxxxx X. Xxxxxx, who is a resident of the State of Washington
("Executive") and Nastech Pharmaceutical Company Inc. with offices at 0000 Xxxxx
Xxxxx Xxxxxxx, Xxxxxxx, Xxxxxxxxxx 00000 (the "Company") for good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged have
reached the following Agreement:
1. The termination of Executive's employment is effective September
7, 2005 (the "Date of Termination") pursuant to Executive's resignation of
employment.
2. (a) Subject to the provisions of Section 4 below, the Company
shall pay Executive $140,000 as severance.
(b) Payments to be made to Executive pursuant to Section 2(a)
above shall be paid in monthly installments at the rate of $23,333 per month for
a six (6) month period. The first (1st) payment shall be made once this
Agreement becomes irrevocable pursuant to Section 13 below with further payments
to be made on a monthly basis thereafter commencing thirty (30) days after the
first (1st) payment date.
3. (a) Both the Company and Executive agree that the terms of
Executive's Change-In-Control and Severance Agreement with the Company dated
July 31, 2002 (the "Change-In-Control and Severance Agreement"), are superseded
in their entirety by the terms of this Agreement and that the Change-In-Control
and Severance Agreement is cancelled.
(b) Except as set forth in this Section 3(b), any stock option
grant agreement pursuant to which Executive has been granted options to purchase
shares of the Company shall remain in effect or expire in accordance with the
terms of the applicable grant agreement and any rights Executive may have after
Executive's termination of employment with respect thereto shall be measured
based on Executive's Date of Termination. The stock options granted to
Executive pursuant to the Nastech Pharmaceutical Company Inc. 2002 Stock Option
Plan (the "Stock Option Plan") and pursuant to a stock option agreement between
the Company and Executive dated September 10, 2003, which are scheduled to vest
on September 10, 2005 are hereby converted from incentive stock options to
non-qualified stock options and shall vest on September 10, 2005 during the
Consulting Period (as defined below).
(c) In the event Executive obtains alternate employment during
the period that severance is being paid to Executive, payment of severance
benefits shall continue and not be offset or reduced.
(d) The Company will deduct from all severance payments made to
Executive pursuant to Section 2(a) above, any outstanding travel or other
advances and all federal, state and local withholding taxes and other deductions
which the Company is required by law to make from wage payments to employees.
(e) Executive shall be eligible to elect medical continuation
coverage for Executive and his immediate family under applicable law ("COBRA").
The Company shall pay the employer portion of Executive's medical costs as if
Executive were still an active employee until the earlier of the date Executive
becomes eligible for medical coverage under the plan, program or policy of a new
employer or the date Executive is no longer eligible for severance payments
hereunder.
(f) The Company shall pay up to $5,000.00 directly to an
outplacement agency of Executive's choice upon receipt of an invoice(s) (which
may be addressed to Executive) for outplacement services.
(g) The Company shall pay Executive a lump sum amount equal
to and in full satisfaction of the Company's obligation to pay Executive for
accrued but unused paid time off ("PTO") pursuant to the Company's records. At
this juncture, the Company records reflect Executive has accrued one hundred
fifty-seven (157) hours of unused PTO.
(h) By executing this Agreement both the Company and
Executive hereby acknowledge and agree that the payments made to Executive and
benefits provided to Executive are in full satisfaction of any amounts owed by
the Company to Executive and that Executive is not entitled to any bonus
payments, and no events which may occur after the execution of this Agreement
shall increase the Company's liability to Executive.
4. As a condition of Executive's entitlement to receive severance
hereunder Executive agrees that for the period commencing on September 7, 2005
and ending on December 7, 2005 ("Consulting Period"), Executive will become a
consultant for the Company. At the Company's request, during the Consulting
Period Executive shall from time-to-time meet with the Company's executives,
accounting personnel, and/or representatives and provide them with advice,
information and services, regarding accounting and financial matters involving
the Company. During the Consulting Period, Executive shall provide such
information, cooperate with the Company, and render such services faithfully and
to the best of Executive's abilities. Executive recognizes that payments to be
made to Executive pursuant to Section 2(a) above and Executive's ability to vest
in the September 10, 2005 tranch of options (described in Section 3(b) above)
are conditioned on Executive fully cooperating with the Company pursuant to the
provision of this Section 4.
5. Executive acknowledges and accepts the payments and benefits
described under Section 2 and Section 3 above as full satisfaction and discharge
of any and all amounts owed to Executive under this Agreement or otherwise,
including without limitation any accrued but unpaid vacation days.
6. (a) Pursuant to the terms of this Agreement, Executive shall
not be bound by a covenant not to compete with the Company. However, Executive
shall
not during the one (1) year period following Executive's termination of
employment hire or attempt to hire for employment any person who is employed by
the Company or attempt to influence any such person to terminate his or her
employment with the Company.
(b) Executive acknowledges and agrees that all nonpublic
information concerning the Company's business relating, without limitation, to
its products, customer lists, investor lists, pricing, trade secrets, patents,
business methods, financial and cost data, prospects for approval, and business
plans and strategies (collectively, the "Confidential Information") is and shall
remain the property of the Company. Executive recognizes and agrees that all of
the Confidential Information, whether developed by Executive or made available
to Executive, other than information that is generally known to the public, is a
unique asset of the business of the Company, the disclosure of which would be
damaging to the Company. Executive agrees that he will not at any time after
the termination of employment hereunder, for any reason, directly or indirectly,
disclose to any person any Confidential Information of the Company, other than
information that is already known to the public. Executive agrees to return to
the Company any and all documents, memoranda, drawings, notes and other papers
and items embodying any Confidential Information of the Company which are in the
possession or control of Executive. On or immediately after the Date of
Termination, Executive shall promptly return all Company-owned equipment back to
the Company, including without limitation the office computer, home computer,
laptop, and blackberry.
(c) Executive shall at no time have or claim the right, title
or interest in any trade name, trademark, patent, copyright, or other similar
rights belonging to or used by the Company and shall never have or claim any
rights, title or interest in any material or matter of any sort prepared for or
used in connection with the business or any part thereof or promotion of the
Company, whether produced, prepared or published in whole or in part by the
Company.
(d) Executive shall not disparage or make any statement which
might adversely affect the reputation of the Company or any related entity, or
their directors, officers, employees or representatives. Neither the Company
nor any related entity, or their directors, officers, employees, or
representatives shall disparage or make any statement which might adversely
affect the reputation of Executive. For the purpose of this subsection,
disparagement shall include, without limitation, any statement accusing the
aforesaid individuals or entities of acting in violation of any law or
governmental regulation or of condoning any such action, or otherwise acting in
an unprofessional, dishonest, disreputable, improper, incompetent or negligent
manner.
7. In consideration for the severance payment, which Executive
acknowledges to be good and valuable consideration, and except for enforcing
Executive's rights under this Agreement, Executive knowingly and voluntarily
releases and forever discharges the Company, any of its parent, subsidiary,
division, and related companies, and any of its past and present directors,
managers, officers, shareholders, partners, employees, agents, attorneys and
servants, and each of their predecessors, successors and assigns (the
"Releasees") from any and all claims, or causes of action,
of any nature whatsoever, known or unknown (the "Release"). This Agreement
includes, without limitation, any rights or claims relating in any way to
Executive's employment relationship with any of the Releasees, or the
termination thereof, or arising under any statute or regulation, including, but
not limited to, any rights or claims Executive may have under the Age
Discrimination in Employment Act, which prohibits age discrimination in
employment; Title VII of the Civil Rights Act of 1964, as amended, which
prohibits discrimination in employment based on race, color, national origin,
religion, or sex; the Equal Pay Act, which prohibits paying men and women
unequal pay for equal work; the Americans With Disabilities Act, which prohibits
discrimination in employment by reason of disability; the Employee Retirement
Income Security Act, which protects employee's interests in certain health and
retirement benefits, the Fair Labor Standards Act, which protects employees'
wages and regulates hours, or any other federal, state, or local laws or
regulations prohibiting employment discrimination. This Agreement also includes
a release by Executive of any claims for wrongful discharge, defamation,
intentional tort, and breach of contract, implied or otherwise. This Agreement
includes both claims that Executives knows about and those Executive may not
know about. Executive represents that as of the date of execution of this
Agreement, Executive has incurred no disability or injury in relation to or as a
result of his employment and asserts no claim for any form of compensation for
such disability, injury or job-related condition. Executive agrees to execute
this Agreement after review and due consideration.
8. Except for enforcement of the Company's rights under this
Agreement, the Company hereby releases Executive from all known claims or
demands that the Company may have in connection with Executive's employment or
service as an officer with the Company.
9. Except as required by applicable law, the parties agree not to
disclose the amount or nature of the benefits being paid under this Agreement to
anyone other than Executive's immediate family and their respective attorneys
and/or tax advisors, should any be consulted.
10. The parties shall be responsible for their own tax liability
with respect to the payments made, and benefits provided under this Agreement
and neither party shall be responsible for the others tax liability.
11. This is the entire Agreement between Executive and the Company
regarding the termination of Executive's employment with the Company. Executive
acknowledges that the Company has made no promises to him other than those
contained in this Agreement.
12. Executive understands that the Company has given him a period of
twenty-one (21) days to review and consider this Agreement before signing it.
Executive further understands that he may use as much of this twenty-one (21)
day period as he wishes prior to signing. Executive further understands that
the Company has encouraged him to consult his own attorney with respect to his
review of the provisions of this Agreement.
13. Executive may revoke this Agreement within seven(7) days of the
date on which he signs it by delivering a written notice of revocation to Xx.
Xxxxx Xxxxx Director, Human Resources, Nastech Pharmaceutical Company Inc., 0000
Xxxxx Xxxxx Xxxxxxx, Xxxxxxx, Xxxxxxxxxx 00000 no later than the close of
business on the seventh (7th) day after Executive signs and delivers this
Agreement to the Company. If Executive revokes this Agreement, it shall be not
be effective or enforceable, and Executive shall not be entitled to any benefits
provided herein.
14. At the Company's request, Executive shall sign and deliver any
and all documents required to effectuate the provisions of this Agreement.
15. This Agreement shall be governed and interpreted in all respects
by the law of the State of Washington.
16. In case any one or more of the provisions of this Agreement shall
be invalid, illegal or unenforceable in any respect or to any extent, the
validity, legality and enforceability of the remaining provisions contained
herein shall not be affected or impaired thereby. Furthermore, if any one or
more of the provisions contained in this Agreement shall for any reason be
determined by a court of competent jurisdiction to be excessively broad as to
activity or subject, it shall be construed without further action by the parties
hereto, by limiting or reducing it, so as to be enforceable to the extent
compatible with then applicable law.
Executive acknowledges that he has carefully read this Agreement,
understands it, and is voluntarily entering into it of his own free will,
without duress or coercion, after due consideration of its terms and conditions.
Executive further acknowledges that except as stated in this Agreement, the
Company has made no representations or promises to him.
NASTECH PHARMACEUTICAL
COMPANY INC.
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Title: Chairman of the Board, President
and Chief Executive Officer
Date: September 7, 2005
ACCEPTED AND AGREED:
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx, Executive
Date: September 7, 2005
