Exhibit 10.15
SEVERANCE AGREEMENT AND
RELEASE
RECITALS
This Severance Agreement and Release
(“Agreement”) is made by and between Wendye Robbins,
M.D. (“Employee”) and NeurogesX, Inc.
(“Company”) (collectively referred to as the
“Parties”):
WHEREAS, Employee was employed by
the Company;
WHEREAS, the Company and Employee
executed an offer letter dated June 21, 2000 (the
“Employment Agreement”);
WHEREAS, On July 15, 2000, the
Company and the Employee entered into an Employee Proprietary
Information and Invention Agreement (the “Invention
Agreement”);
WHEREAS, the Company and Employee
(or entities affiliated with Employee) have entered into the
following agreements for the purchase of shares of Common Stock of
the Company (collectively, the “Plan Stock
Agreements”), subject to the terms and conditions of the
Company’s 2000 Incentive Stock Plan (the “Plan”):
Exercise Notice dated as of January 31, 2003; Investment
Representation Statement dated as of January 31, 2003;
Restricted Stock Purchase Agreement dated as of January 31,
2003; and the Joint Escrow Instructions dated as of
January 31, 2003, Exercise Notice dated as of April 8,
2002; Investment Representation Statement dated as of April 9,
2002, Security Agreement dated as of April 9, 2002 and the
Promissory Note (the “Second Note”) dated as of
April 9, 2002;
WHEREAS, the Company and Employee
have entered into a Founder Stock Purchase Agreement dated as of
July 8, 2000, subject to a Stock Restriction Agreement dated
June 28, 2000, and a Common Stock Purchase Agreement dated as
of September 28, 2000 (collectively, the “Founder Stock
Agreements”) pursuant to which the Employee purchased shares
of the Company’s common stock subject to the terms and
conditions of the Plan;
WHEREAS, the Employee purchased
16,000 shares of Series A Preferred Stock pursuant to that certain
Series A Preferred Stock Purchase Agreement, dated as of
June 28, 2000 (collectively, the “Preferred Stock
Agreement,” along with the Plan Stock Agreements and the
Founder Stock Agreement, collectively, the “Stock
Agreements”);
WHEREAS, the Employee has
transferred shares purchased pursuant to the Stock Agreements to
Craig and Wendye McGahey (Trustees of the Trust of Craig and Wendye
McGahey dated March 19, 1997), which subsequently transferred
such shares to the following trusts for estate planning purposes:
Craig & Wendye McGahey (TTEES of the Trust of
Craig & Wendye McGahey, dtd 3/19/97, as amended 9/17/01;
Craig McGahey, TTEE of McGahey Family Trust dtd 12/26/02 for
primary benefit of Elena Marron McGahey; Craig McGahey, TTEE of
McGahey Family Trust dtd 12/26/02 for primary benefit of Robin
Jenna McGahey; Craig McGahey, TTEE of McGahey Family
Trust dtd 12/26/02 for primary benefit of Simon
Edward McGahey; and Craig McGahey, TTEE of McGahey Family Trust dtd
12/26/02 for primary benefit of Jennifer Robbins Bolding
(collectively, the “Trusts”), with each of such Trusts
agreeing to be bound to the restrictions of Employee set forth
under the Stock Agreements as if such Trusts were the
Employee;
WHEREAS, the Company and Employee
have entered into promissory notes dated September 28, 2000
(the “First Note,” along with the Second Note,
collectively, the “Promissory Notes”). The obligations
under the First Note are secured pursuant to a Security Agreement
dated September 28, 2000, by shares of Company common stock
purchased pursuant to the Common Stock Purchase Agreement dated as
of September 28, 2000;
WHEREAS, the Parties, and each of
them, wish to resolve any and all disputes, claims, complaints,
grievances, charges, actions, petitions and demands that Employee
may have against the Company as defined herein, including, but not
limited to, any and all claims arising or in any way related to
Employee’s employment with, or separation from, the
Company;
NOW THEREFORE, in consideration of
the promises made herein, the Parties hereby agree as
follows:
COVENANTS
1. Consideration .
(a) Employee hereby represents and
warrants that she has executed and delivered to the Company her
resignation as a member of the Board of Directors effective the
date of the Company’s Board of Director’s approval of
this Agreement. The terms and conditions of this Agreement are
expressly contingent upon the execution and delivery of
Employee’s resignation from the Board of Directors.
Employee’s employment with Company will terminate on or about
February 15, 2004 (the “Termination Date”), at
which time the Company will pay Employee all outstanding salary,
wages, accrued vacation, and submitted reimbursable expenses. Upon
reasonable written request, the Company’s CEO will make
himself or herself reasonably available on a not more than once a
month basis during normal business hours to answer Employee’s
questions concerning the Company’s business until the earlier
of (i) the date the Employee ceases to be a shareholder of the
Company; (ii) that date the Company effectuates an IPO, or
(iii) the sale or merger of the Company, wherein the
Company’s then current shareholders do not maintain a 50%
interest or more in the surviving entity or that involves the sale
or license of all or substantially all of the assets of the
Company. Employee shall be able to keep her current telephone
number and email address at the Company for six (6) months
after the Effective Date of this Agreement. The Company also agrees
to use reasonable efforts to permanently and prominently list
Employee on its website as the sole founder of the Company. On an
ongoing basis, the Company will also use reasonable efforts to
reference the Employee as the sole original founder of the Company
in all other mediums, as appropriate.
(b) Severance . Within 10
days of the Effective Date of this Agreement, the Company agrees to
pay Employee a lump sum payment equivalent to six (6) months
of the Employee’s base
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salary in effect as of the Termination Date,
less applicable withholding (the “Lump Sum”). As
additional consideration for the execution of this Agreement and in
consideration of the services to be provided as set forth in
section 1(c) below, the Company agrees to pay Employee $133,900.00
without any withholding in equal monthly payments over a twelve
month period following February 15, 2004 consistent with the
Company’s regular payroll practices. These payments will be
due and owing regardless of whether the Company requests
utilization of Employee’s services. The first payment will be
made on the first regular payroll date following the Effective Date
of this Agreement and will continue, thereafter, in accordance with
the Company’s regular payroll practices, for the twelve
(12) month period (the “Payment Period”). During
the Payment Period, Employee will not be entitled to accrual of any
employee benefits, including, but not limited to, vesting in stock
options or vacation benefits. Employee and the Company agree that a
1099 shall issue with respect to all payments made during the
Payment Period under this section, other than for the Lump Sum
payment specified above. As further severance, the Company will
continue providing medical insurance for Employee and her family
through February 15, 2005. To the extent that the Company
cannot maintain Employee on the Company’s medical insurance
plan, and the Employee elects to continue her health insurance
under COBRA, the Company will reimburse Employee for payments made
by Employee pursuant to COBRA in accordance with the terms set
forth in Section 1(f) below.
(c) Consulting Relationship .
Employee agrees to remain with the Company as a consultant from the
Termination Date through February 15, 2005 (the
“Consulting Period”). It is the express intention of
the Company that Employee performs services during the Consulting
Period as an independent contractor to the Company. Nothing in this
Agreement shall in any way be construed to constitute Employee as
an agent, employee or representative of the Company. Without
limiting the generality of the foregoing, Employee is not
authorized to bind the Company to any liability or obligation or to
represent that Employee has any such authority. Employee
acknowledges and agrees that Employee is obligated to report as
income all compensation received by Employee pursuant to this
Agreement. Employee agrees to and acknowledges the obligation to
pay all self-employment and other taxes on such income. During the
Consulting Period, upon the request of the Company’s then
current CEO, Employee shall be required to provide up to two days
of service per month to the Company, without carryovers. Should the
Company’s then current CEO reasonably request that Employee
provide additional days of service beyond the two days in any given
calendar month, Employee will be compensated at the rate of two
thousand dollars ($2,000) per day for each day beyond the two days
specified herein. During the Consulting Period, the Company shall
reimburse Employee for travel related expenses incurred and
submitted during the Consulting Period, provided however that the
total amount reimbursed during the Consulting Period shall not
exceed six thousand dollars ($6,000.00), unless the Company
consents in writing otherwise. Employee shall be permitted to
accept other employment or consulting relationships during the
Consulting Period. However, Employee agrees that, during the
Consulting Period, she will not, without the prior written consent
of the Company, (i) serve as a partner, employee, consultant,
officer, director, manager, agent, associate, investor, or
(ii) directly or indirectly, own, purchase, or organize, or
(iii) build, design, finance, acquire, lease, operate, manage,
invest in, work or consult for or otherwise affiliate
himself/herself with any business, in competition with the
Company’s business in the peripheral neuropathic
pain/capsaicin space, which shall be more specifically defined
as
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involving any work concerning the TRPV1
(formerly known as the VR1) receptor, capsaicin, capsaincinoids, or
other molecules active at this TRPV1 receptor on peripheral nerves.
Subject to the Company’s removal of any Company property and
proprietary information contained in such devices, Employee shall
be allowed to keep the Company’s laptop computer and
blackberry device currently used by her upon termination of the
Consulting Period.
(d) Stock . The Parties agree
that for purposes of determining the number of shares of the
Company’s common stock which have been released from the
Company’s Repurchase Option under the Stock Agreements (the
“Released Shares”) as of the Effective Date the
Employee shall be considered to have vested in, and the
Company’s Repurchase Option shall be considered to have been
terminated as to, 100% of the total shares subject to the Stock
Agreements and purchased by the Employee. Notwithstanding anything
to the contrary in this Agreement, all shares, including those no
longer subject to the Repurchase Option, shall continue to be
subject to all other terms of the Stock Agreements, as
applicable.
(e) Bonus Payment . Within 10
days of the Effective Date of this Agreement, the Company agrees to
pay to the Employee a lump sum payment in the total amount of forty
thousand dollars ($40,000.00.)
(f) Benefits .
Employee’s health insurance benefits will cease at the end of
February 2004, subject to Employee’s right to continue her
health insurance under COBRA. Should Employee elect COBRA, the
Company shall reimburse Employee for up to 12 months of health care
coverage under COBRA, upon submission to the Company. Reimbursement
shall be grossed up if necessary to ensure that Employee is fully
reimbursed for any COBRA premium and any tax incurred on the part
of Employee in connection with the reimbursement payment.
Employee’s participation in all other benefits and incidents
of employment ceased on the Termination Date. Employee ceased
accruing employee benefits, including, but not limited to, vacation
time and paid time off, as of the Termination Date.
(g) C101 Article . The
Company and Employee hereby agree that with respect to authorship
of the C101 article submitted by the Company to the journal
“Pain,” that Alan Basbaum (the “Reviewer”)
shall review the C101 article and the contributions to such article
made by the various authors of such contributions and determine
whether the Employee should be considered the senior author of such
article. The Company and Employee hereby agree to be bound by the
decisions of the Reviewer. If Mr. Basbaum notifies the Company
and the Employee that he cannot serve as the Reviewer, then the
Company and the Employee shall choose a person to fill the role of
the Reviewer that is mutually acceptable to the Company and the
Employee.
2. Repayment of Promissory
Notes . Within thirty (30) days of the Effective Date of
this Agreement, Employee agrees to fully repay all principal and
interest on the Promissory Notes executed by Employee in favor of
the Company.
3. Stock Ownership . Employee
hereby represents and warrants that: (i) all stock owned by
Employee and the Trusts is as set forth on Exhibit A ;
(ii) Employee has
