Exhibit 10.28
Nabi
Biopharmaceuticals
5800 Park of Commerce Boulevard,
N.W.
Boca Raton, FL 33487
Change of Control Severance
Agreement
Effective as of August 21,
2007
Paul Kessler, M.D.
10604 Avonlea Hills Court
Hagerstown, MD 21742
Dear Paul:
The Board of Directors of Nabi
Biopharmaceuticals (the “Corporation”) and the
Compensation Committee (the “Committee”) of the Board
have determined that it is in the best interests of the Corporation
and its shareholders for the Corporation to agree, as provided
herein, to pay you termination compensation in the event you should
leave the employ of the Corporation under the circumstances
described below.
The Board and the Committee
recognize that the continuing possibility of a sale or change of
control of the Corporation is unsettling to you and other key
employees of the Corporation. Therefore, these arrangements are
being made to help assure a continuing dedication by you to your
duties to the Corporation by diminishing the inevitable distraction
to you from the personal uncertainties and risks created by the
potential of a change of control of the Corporation. In particular,
the Board and the Committee believe it important, should the
Corporation receive proposals from third parties with respect to
its future, to enable you, without being influenced by the
uncertainties of your own situation, to assess and advise the Board
whether such proposals would be in the best interests of the
Corporation and its shareholders and to take such other action
regarding such proposals as the Board might determine to be
appropriate, including being available to assist in any transition
should there be a change of control of the Corporation.
1. In view of the foregoing and in
further consideration of your continued employment with the
Corporation, the Corporation will pay you as termination
compensation an amount, determined as provided below, in the event
that within twelve months following a Change of Control (as defined
below) (a) you terminate your employment with the Corporation
for Good Reason (as defined below) or (b) your employment with
the Corporation is terminated by the Corporation for any reason
other than Cause (as defined below), death or disability. The
compensation so payable (hereinafter referred to as the
“Severance Amount”) shall be an amount equal to two
times the sum of (a) the higher of (i) your current
annual base salary or (ii) your base salary immediately prior
to the Change of Control plus (b) the target bonus you could
have earned for the fiscal year in which the Change of Control
occurred. The Severance
Amount shall be paid to you ratably over the
twenty-four month period commencing on the date of the termination
of your employment with the Corporation (the “Termination
Date”) in accordance with the normal payroll practices of the
Corporation, but in any event no less frequently than semimonthly.
Notwithstanding the foregoing, if it is necessary in order to
satisfy the requirements of the American Jobs Creation Act, the
parties agree that the payments to which you would otherwise be
entitled under this Agreement on account of your separation from
service (within the meaning of Section 409A(2)(A)(i) of the
Internal Revenue Code of 1986, as amended) from the Corporation
during the six-month period commencing on the Termination Date
shall be accumulated and paid on the first regular payroll date for
employees following such six-month period.
2. In addition, in the event your
employment with the Corporation terminates under circumstances
entitling you to receive the Severance Amount:
(a) Any compensation and other
amounts previously deferred by you, to which you are entitled, and
any accrued vacation pay and accrued paid leave bank amounts not
yet paid by the Corporation, shall be paid to you within five
business days of the Termination Date.
(b) All other amounts accrued or
earned by you through the date of such termination and amounts
otherwise owing under the Corporation’s plans and policies
shall be paid to you in accordance with the terms of those plans
and policies.
(c) The Corporation shall maintain
in full force and effect, for the continued benefit of you and/or
your family for twelve months after the Termination Date, all
employee welfare benefit plans and any other employee benefit
programs or arrangements (including, without limitation, medical
and dental insurance plans and disability and life insurance plans)
in which you were entitled to participate immediately prior to the
Change of Control, provided that your continued participation is
possible under the general terms and provisions of such plans and
programs.
(d) All outstanding stock options
which you hold shall vest immediately upon a Change of Control and
shall be exercisable for (i) the remainder of the option
term(s) or (ii) a period of two years from the Termination
Date, whichever is shorter.
(e) The Corporation shall provide
outplacement services for you by its designated organization at a
level consistent with the Corporation’s career transition
policy.
(f) You shall not be required to
mitigate the amount of any payment provided for in this Agreement
by seeking other employment or otherwise, nor shall the amount of
any payment provided for in this Agreement be reduced by any
compensation earned by you as the result of employment by another
employer after the Termination Date, or otherwise.
2
3. Any termination by you for Good
Reason shall be communicated by a written notice given within 120
days of your having actual notice of the events giving rise to a
right to terminate for Good Reason and which (i) sets forth in
reasonable detail the facts and circumstances claimed to provide a
basis for termination for Good Reason and (ii), if the Termination
Date is other than the date of receipt of such notice, specifies
the Termination Date (which date shall not be more than 15 days
after the giving of such notice). Your failure to set forth in the
notice of termination any fact or circumstance which contributes to
a showing of Good Reason shall not waive any right of yours
hereunder or preclude you from asserting such fact or circumstance
in enforcing your rights hereunder.
4. Anything in this Agreement not
withstanding, you and the Corporation agree that you will not
terminate your employment with the Corporation for Good Reason
within six months following a Change of Control, or for any reason
within the period beginning on the sixth monthly anniversary of a
Change of Control and ending on the twelfth monthly anniversary
thereof, and seek, obtain or retain any compensation pursuant to
Sections 1 and 2 of this Agreement if you become employed by or
otherwise provide services to the company that was involved in the
Change of Control by acquiring assets or securities of the
Corporation or merging or consolidating with the Corporation or any
Affiliate of that company during the twelve months following the
Change of Control.
5. For purposes of this
Agreement:
(a) “Bonus” means annual
bonus or incent
