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Exhibit
10.38
AGREEMENT AND GENERAL
RELEASE
For good and valuable
consideration, rendered to resolve and settle finally, fully and
completely all matters that now or may exist between them, the
parties below enter this Agreement and General Release.
1. Parties . The
parties to this Agreement are Kevin Kaster, his heirs,
representatives, successors and assigns (hereinafter referred to
collectively as “Mr. Kaster”) and Threshold
Pharmaceuticals, Inc. and/or any of its successors, subsidiaries,
affiliates, parents, and related companies (hereinafter referred to
collectively as “Threshold”).
2. Termination of
Employment . Mr. Kaster acknowledges and agrees that his
employment relationship with Threshold will end, effective
November 2, 2007 (the “Termination Date”).
Mr. Kaster shall continue to receive his current salary and
benefits up to and including the Termination Date.
3. Severance Benefits
. As consideration for the promises and covenants of
Mr. Kaster set forth in this Agreement, Threshold shall
provide Mr. Kaster with the following benefits (the
“Severance Benefits”):
a. Severance Payment .
In light of the Change of Control Severance Agreement
Mr. Kaster executed on 04/02/07 (the “Severance
Agreement”), Threshold shall provide Mr. Kaster with a
severance payment in the amount of $ 185,500.08, which is
equivalent to twelve (12) months of Mr. Kaster’s
regular pay, less applicable withholding taxes, in a lump sum (the
“Severance Payment”). Said Severance Payment shall be
delivered to Mr. Kaster within fourteen (14) calendar
days following Threshold’s receipt of the signed and dated
Agreement.
b. Continued Medical
Insurance . In addition to the Separation Payment, Threshold
will pay the applicable premiums for Mr. Kaster and his
eligible dependents to provide coverage for the four month period
following Mr. Kaster’s termination month (December 1,
2007-March 31, 2008) if Mr. Kaster makes a timely and
accurate election and is and remains eligible to continue his
current group medical insurance coverage pursuant to the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended,
(“COBRA”).
4. Consultant Services
. As consideration for the promises and covenants set forth in this
Agreement, Mr. Kaster agrees to assist Threshold as a
consultant following the Termination Date (the “Consulting
Period”) at an annual rate of $100,000. During the Consulting
Period, Mr. Kaster agrees to provide assistance to Threshold
as an independent contractor and not as an agent or an employee of
Threshold. Either party has the right to terminate the consulting
relationship at any time. .To the extent allowable under the
applicable stock option plan, the parties intend that
Mr. Kaster’s unvested stock options will continue to
vest and the right of repurchase by the Company with respect to
certain shares of the Company’s common stock held by
Mr. Kaster will continue to lapse, in accordance with their
respective terms during the Consulting Period.
5. No Other Payments
Due . Mr. Kaster acknowledges and agrees that he has
received all salary, accrued vacation, bonuses, or other such sums
due to him other than the Severance Benefits to be provided by
Paragraph 3 of this Agreement.
6. Release of Claims by
Mr. Kaster . In exchange for the promises contained in
this Agreement, Mr. Kaster hereby waives, releases and forever
discharges, and agrees that he will not in any manner institute,
prosecute or pursue, any and all complaints, claims, charges, or
causes of action, whether in law or in equity, which he asserts or
could assert, at common law or under any statute, rule, regulation,
order or law, whether federal, state, or local, or on any grounds
whatsoever, including but not limited to, any claims under Title
VII of the 1964 Civil Rights Act, the Age Discrimination in
Employment Act, the California Fair Employment and Housing Act,
Government Code §12900 et seq. , the California
Labor Code, the Americans with Disabilities Act, the California
Family Leave Act, and the Employment Retirement Income Security Act
of 1974, against Threshold and any of its or their current or
former, owners, shareholders, agents, employee benefit plans,
representatives, servants, employees, attorneys, successors,
predecessors, and assigns (collectively referred to as
“Released Parties”) with respect to any event, matter,
claim, damage or injury arising out of Mr. Kaster’s
employment relationship with Threshold, and the termination of such
employment relationship, under or relating to any other agreement,
express or implied, and with respect to any other claim, matter, or
event arising prior to execution of this Agreement by
Mr. Kaster. This Agreement does not release claims that cannot
be released as a matter of law, including, but not limited to,
claims under Division 3, Article 2 of
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