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Exhibit
10.1
SEPARATION AND GENERAL
RELEASE AGREEMENT
In exchange for the terms,
conditions and releases set forth below, Nektar Therapeutics
(“ Nektar ” or the “
Company ”) and Tim Harkness (“
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 Agreement before such date pursuant to Paragraph
7(c) below.
2. Termination of
Employment . Your employment as Senior Vice President and
Chief Financial Officer of the Company, as well as your employment
in any other capacity for the Company or any of its affiliates,
shall terminate, effective December 10, 2007 (the “
Termination Date ”). Following the Termination
Date, you shall not be authorized to transact any business on
behalf of the Company or any its affiliates or
subsidiaries.
3.
Consideration . Provided that you comply with all of
the terms of this Agreement, the Company shall provide you with the
following severance benefits (the “ Severance
Benefits ”): (a) the Company will make a
severance payment to you within three (3) business days
following the Effective Date in the amount of $385,000.00, less all
applicable withholdings and standard deductions (the “
First Severance Payment ”); (b) the
Company will also make monthly severance payments to you in the
amount of $27,500.00, less all applicable withholdings and standard
deductions (the “ Monthly Severance Payment
”) commencing on the one month anniversary of the Effective
Date and continuing on each one-month anniversary of the Effective
Date and ending on the twelve month anniversary of the Effective
Date; provided, however, following the first two (2) Monthly
Severance Payments, you shall not be paid, and instead will accrue,
the Monthly Severance Payments until the first business day
following the six month anniversary of the Effective Date when all
previously accrued but unpaid Monthly Severance Payment will be
paid to you, and thereafter, you will be paid Monthly Severance
Payments on or before each monthly anniversary of the Effective
Date; and provided, further that (except as set forth in the next
parenthetical phrase) you shall cease accruing or being entitled to
receive Monthly Severance Payments on the earlier to occur of
(i) the date you commence new employment; or (ii) on the
one-year anniversary of the Effective Date (it being understood
that if you obtain new employment during the one year period after
the Termination Date, you will be entitled to a proportionate
payment at the next regularly scheduled payment date, in respect of
the Monthly Severance Payments, based on the number of days elapsed
since the Termination Date until the date you obtain such new
employment; thus, for example, if you obtain employment on the 95th
day after the Termination Date, you will receive a Monthly
Severance Payment on the six month anniversary of the Termination
Date, equal to $27,500 x 12 x 95/360, less amounts previously paid
to you, i.e., the first two Monthly Severance Payments described
above); (c) in accordance with your offer letter, dated
August 9, 2007 (the “ Offer Letter
”) and as set forth below in Paragraph 17, you shall become
immediately vested in those shares of the Company’s common
stock that would have vested pursuant to your Option (as such term
is defined below in Paragraph 17) as if your Option allowed monthly
vesting during your first year of your employment with the Company;
and (d) in accordance with your Offer Letter and as set forth
below in Paragraph 17, your deadline to exercise your right to
acquire the shares of the Company’s common stock underlying
the vested portion of your Option will be extended to the twelve
month anniversary of the Termination Date; and (e) provided
that you timely exercise
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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 payments
for you and your eligible dependents for a period commencing on the
Termination Date and ending on the earlier to occur of (i) the
twelve month anniversary of the Termination Date, and (b) 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. You acknowledge that the Severance Benefits represent
payments that you would not otherwise be entitled to receive, now
or in the future, without entering into this Agreement, and
constitutes valuable consideration for the promises and
undertakings set forth in this Agreement.
4. Payment of Salary
and Expenses . On your Termination Date, the Company will
pay to you all accrued and unpaid salary and any accrued but unused
paid time off as of the Termination 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 Termination Date. You agree that, within ten
(10) days after the Termination Date, you will submit your
final documented expense reimbursement statement reflecting all
business expenses you incurred through the Termination Date, if
any, for which you seek reimbursement. The Company will reimburse
you for these expenses pursuant to its regular business
practice.
5. Return of Property;
Proprietary Information Agreement . Within five days
following the Termination Date, you shall return to the Company any
and all Company property, including, but not limited to, documents
(in whatever paper or electronic form they exist), things relating
to the business of the Company and all intellectual, electronic and
physical property belonging to the Company that is in your
possession or control, including but not limited to any emails,
documents, power point presentations, business plans, financial
plans, personnel information and/or financial statements belonging
to the Company or that contain confidential information of the
Company. Your signature below constitutes your certification that
you have returned all documents and other items provided to you by
the Company, developed or obtained by you as a result of your
employment with the Company, or otherwise belonging to the Company.
Notwithstanding the foregoing, you may keep your computer and your
cellular telephone (and corresponding telephone number for your
personal use) and the Company will provide to you reasonable IT
assistance in transitioning your calendar and contacts information
from the Company’s network to your personal system; provided,
however, you will, at the earliest practicable date, deliver your
computer to the Company’s IT department for the purpose of
creating a mirror data back-up copy for the Company’s
archival records. You hereby reaffirm and agree to observe and
abide by the terms of your Employment Agreement (the “
Employment 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 Company employees. The obligations under the Employment
Agreement that survive the termination of your employment are
specifically incorporated herein by reference.
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6. 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 sue 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 your offer letter, dated August 24, 2007,
or the Company’s Change of Control Severance Plan;
(ii) any and all Claims relating to,
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