RETIREMENT, CONSULTING AND
GENERAL RELEASE AGREEMENT
This
Retirement, Consulting
and General Release Agreement (“Agreement”)
is made and entered into by and between John R. Julian
,
(“Julian” or “you”), on one side, and
Myogen, Inc.
(“Myogen” or “the Company”), on the other
side, as of the Effective Date defined in Section 13
herein.
Whereas ,
Julian and the Company previously entered into an Employment and
Retention Agreement dated October 2,2003 (“Prior
Employment Agreement”);
Whereas ,
Julian has notified the Company that he will retire and terminate
his employment relationship with the Company effective as of
May 31, 2006 (the “Termination Date”);
Whereas , the
Company has requested that Julian provide certain consulting
services to the Company from the Termination Date through
December 31, 2006 (“Consulting Period”) and Julian
has agreed to provide such services during the Consulting
Period;
Whereas , the
Company accepts Julian’s retirement and termination of
employment notice and his agreement to provide consulting services
to the Company;
Whereas,
Julian and the Company desire to terminate and replace in its
entirety the Prior Employment Agreement with this
Agreement;
Whereas ,
Julian and the Company also desire to confirm the termination of
their employment relationship effective as of the Termination Date
(defined below) and enter into a consulting relationship pursuant
to the terms and conditions of this Agreement during the Consulting
Period.
Whereas ,
during the Consulting Period, Julian and the Company acknowledge
that Julian’s Options (defined below) will continue to vest
pursuant to the vesting schedule rates set forth in the stock
option agreements governing the Options.
Now,
Therefore, in consideration of the foregoing and the
mutual covenants and premises contained in this Agreement, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
(a) Transition Period. Commencing on March 3, 2006
(“the Transition Date”) and continuing through the
Termination Date (May 31, 2006), you will continue to serve as
an employee of the Company, with the title of Senior Advisor,
reporting to the Chief Executive Officer (“Transition
Period”). During the Transition Period, you will be available
to provide services to the Company on a full-time basis. Your
duties will be prescribed by the Chief Executive Officer in writing
and will focus primarily on assisting the Senior Vice President of
Commercial Operations with the set-up of the commercial
infrastructure. During the Transition Period, you must be in
compliance with the appropriate policies and procedures as
indicated in the Employee Handbook, and the Proprietary Information
Agreement. As of the Termination Date, you will cease to be
employed by the Company as Senior Advisor or in any other
capacity.
(b) Salary . The Company will pay you at a rate
equivalent to the annual base salary that you were receiving as of
the Transition Date until the Termination Date. These salary
payments will be made on the Company’s regular payroll dates
subject to standard withholdings and deductions.
(c) Benefits . During the Transition Period, you will
be entitled to continue your participation in the Company’s
employee health insurance and other benefit plans in effect on the
Transition Date.
2. Accrued Salary and Paid Time Off . On the
Termination Date, the Company will pay you all accrued salary, and
all accrued and unused vacation earned through the Termination
Date, subject to standard payroll deductions and withholdings. You
are entitled to these payments regardless of whether or not you
sign this Agreement.
3. Health Insurance. Following the Termination Date and
to the extent provided by the federal COBRA law or, if applicable,
state insurance laws, and by the Company’s current group
health insurance policies, you will be eligible to continue your
group health insurance benefits at your own expense. Later, you may
be able to convert to an individual policy through the provider of
the Company’s health insurance, if you wish. On or about the
Termination Date, the Company or its insurance carrier will provide
you a COBRA notification setting forth your rights and
responsibilities with regard to COBRA coverage.
4. Transition Period Bonus . Upon successful completion
of the Transition Period, the Company will transfer to Julian, and
Julian will receive ownership of, his work laptop computer,
provided , that the Company will remove all confidential
files from such computer and provided further that Julian
signs and dates the “General Release Agreement”
attached as Exhibit E, after May 31, 2006, but before
June 21, 2006.
5. Consulting Services . As consideration for the
benefits provided to you under this Agreement, you agree to provide
to the Company consulting services related to the Company’s
business as requested by the Company’s CEO, or with your
prior agreement and consent, the Company’s Senior Vice
President of Commercial Operations (“Consulting
Services”). The Consulting Services requested by the Company
shall not exceed thirty-two (32) hours per month during the
Consulting Period unless you and the Company otherwise agree. The
Consulting Services are to be performed at such times and locations
as shall be mutually convenient to you and the Company. You shall
utilize your best efforts, skills and talents in performing the
Consulting Services.
(a) Compensation . You will be paid $250 per hour for
Consulting Services rendered under this Agreement during the
Consulting Period. Notwithstanding the foregoing, Myogen shall not
be obligated to pay or reimburse Consultant more than $75,000 in
the aggregate for Consulting Services rendered under this Agreement
during the Consulting Period unless Myogen has approved such
additional fees in writing in advance. During the Consulting
Period, you shall submit an invoice to Myogen monthly for such
services, and Myogen will pay you for fees due hereunder within
fifteen (15) days of Myogen’s receipt of the invoice
therefore.
(b) Expense Reimbursement . Myogen will reimburse you
for incidental expenses incurred in performing Consulting Services;
provided, however, that Myogen shall not be obligated to
reimburse you for any such expenses unless (a) Myogen has
approved of the expense in writing in advance and (b) you
provide Myogen with appropriate receipts or other relevant
documentation for all such expenses. Travel expenses will be
subject to Myogen’s then-current travel policy.
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(c) Independent Contractor Status . It is understood
and agreed that during the Consulting Period, you are an
independent contractor and not an employee, agent, joint venturer
or partner of the Company, and you agree not to hold yourself out
as, or give any person reason to believe that you are, an employee,
agent, joint venturer or partner of the Company. You will not be
entitled to any of the benefits which Myogen may make available to
its employees, such as group insurance, profit-sharing or 401(k)
benefits. You will be solely responsible for all tax returns and
payments required to be filed with or made to any federal, state or
local tax authority with respect to your performance of services
and receipt of fees under this Agreement. You will regularly
report amounts paid to you by filing Form 1099-MISC with the
Internal Revenue Service as required by law: Because you are an
independent contractor, Myogen will not withhold or make payments
for social security; make unemployment insurance or disability
insurance contributions; or obtain worker’s compensation
insurance on your behalf. You agree to accept exclusive liability
for complying with all applicable state and federal laws governing
self-employed individuals, including obligations such as payment of
taxes, social security, disability and other contributions based on
fees paid to you, your agents or employees under this
Agreement. You hereby agree to indemnify and defend Myogen
against any and all such taxes or contributions, including
penalties and interest. You are free to enter any contract to
provide services to other business entities, except any contract
which would induce you to violate this Agreement or the Proprietary
Information Agreement.
(d) Proprietary Information . Julian agrees during the
term of the Consulting Period and thereafter that he will take all
steps reasonably necessary to hold Myogen’s Proprietary
Information in trust and confidence, will not use Proprietary
Information in any manner or for any purpose not expressly set
forth in this Agreement, and will not disclose any such Proprietary
Information to any third party without first obtaining
Myogen’s express written consent on a case-by-case basis. By
way of illustration but not limitation “Proprietary
Information” includes (a) trade secrets, inventions,
mask works, ideas, processes, formulas, source and object codes,
data, programs, other works of authorship, know-how, improvements,
discoveries, developments, designs and techniques (hereinafter
collectively referred to as “Inventions”); and
(b) information regarding plans for research, development, new
products, marketing and selling, business plans, budgets and
unpublished financial statements, licenses, prices and costs,
suppliers and customers; and (c) information regarding the
skills and compensation of other employees of Myogen.
Notwithstanding the other provisions of this Agreement, nothing
received by Julian will be considered to be Myogen Proprietary
Information if (1) it has been published or is otherwise
readily available to the public other than by a breach of this
Agreement; (2) it has been rightfully received by Julian from
a third party without confidential limitations; (3) it has
been independently developed for Julian by personnel or agents
having no access to the Myogen Proprietary Information; or
(4) it was known to Julian prior to its first receipt from
Myogen.
(e) Third Party Information . Julian understands that
Myogen has received and will in the future receive from third
parties confidential or proprietary information (“Third Party
Information”) subject to a duty on Myogen’s part to
maintain the confidentiality of such information and use it only
for certain limited purposes. Julian agrees to hold Third Party
Information in confidence and not to disclose to anyone (other than
Myogen personnel who need to know such information in connection
with their work for Myogen) or to use, except in connection with
Julian ‘s work for Myogen, Third Party Information unless
expressly authorized in writing by an officer of Myogen.
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(f) No Conflict of Interest . Julian agrees during the
term of the Consulting Period he will not to accept work or enter
into a contract or accept an obligation that is expressly
prohibited by this Agreement or directly competitive with Julian
‘s obligations under this Agreement or the scope of services
rendered for Myogen. Julian warrants that to the best of his
knowledge, there is no other existing contract or duty on
Julian’s part inconsistent with this Agreement, unless a copy
of such contract or a description of such duty is attached to this
Agreement as Exhibit B. Julian further agrees not to disclose
to Myogen, or bring onto Myogen’s premises, or induce Myogen
to use any confidential information that belongs to anyone other
than Myogen or Julian.
(g) Disclosure of Work Product . As used in this
Agreement, the term “Work Product” means any Invention,
whether or not patentable, and all related know-how, designs, mask
works, trademarks, formulae, processes, manufacturing techniques,
trade secrets, ideas, artwork, software or other copyrightable or
patentable works. Julian agrees to disclose promptly in writing to
Myogen, or any person designated by Myogen, all Work Product which
is solely or jointly conceived, made, reduced to practice, or
learned by Julian in the course of any work performed for Myogen
(“Myogen Work Product”). Julian represents that any
Work Product relating to Myogen’s business or any Project
which Julian has made, conceived or reduced to practice at the time
of signing this Agreement (“Prior Work Product”) has
been disclosed in writing to Myogen and attached to this Agreement
as Exhibit C. If disclosure of any such Prior Work Product
would cause Julian to violate any prior confidentiality agreement,
Julian understands that he is not to list such Prior Work Product
in Exhibit C but he will disclose a cursory name for each such
invention, a listing of the party(ies) to whom it belongs, and the
Fact that full disclosure as to such Prior Work Product has not
been made for that reason. A space is provided in Exhibit C
for such purpose.
(h) Ownership of Work Product . Julian shall
specifically describe and identify in Exhibit C all technology
which (a) Julian intends to use in performing under this
Agreement, (b) is either owned solely by Julian or licensed to
Julian with a right to sublicense and (c) is in existence in
the form of a writing or working prototype prior to the Consulting
Period (“Background Technology”). Julian agrees that
any and all Inventions conceived, written, created or first reduced
to practice in the performance of work under this Agreement shall
be the sole and exclusive property of Myogen.
(i) Assignment of Myogen Work Product . Except for
Julian’s rights in the Background Technology, Julian
irrevocably assigns to Myogen all right, title and interest
worldwide in and to the Myogen Work Product and all applicable
intellectual property rights related to the Myogen Work Product,
including without limitation, copyrights, trademarks, trade
secrets, patents, moral rights, contract and licensing rights (the
“Proprietary Rights”). Except as set forth below,
Julian retains no rights to use the Myogen Work Product and agrees
not to challenge the validity of Myogen’s ownership in the
Myogen Work Product. Julian hereby grants to Myogen a
non-exclusive, royalty-free, irrevocable and world-wide right, with
rights to sublicense through multiple tiers of sublicensees, to
distribute, reproduce, make derivative works of, publicly perform,
and publicly display in any form or medium, whether now known or
later developed, make, have made, use, sell, import and offer for
sale the Background Technology and any Prior Work Product
incorporated or used in the Myogen Work Product for the purpose of
developing and marketing Myogen products but not for the purpose of
marketing Background Technology or Prior Work Products separate
from Myogen products.
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(j) Waiver or Assignment of Other Rights . If Julian
has any rights to the Myogen Work Product that cannot be assigned
to Myogen, Julian unconditionally and irrevocably waives the
enforcement of such rights, and all claims and causes of action of
any kind against Myogen with respect to such rights, a
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