Exhibit 99.4
SETTLEMENT AGREEMENT
AND RELEASE
THIS SETTLEMENT AGREEMENT AND RELEASE ("Settlement
Agreement") sets out the complete agreement and understanding
between TRIMERIS, INC. (the "Company") and ROBERT
BONCZEK (the "Executive" or "Mr. Bonczek") regarding the
termination of Executive's employment with the Company.
WHEREAS, Mr. Bonczek has been employed by the Company as CFO and
General Counsel, and
WHEREAS, on March 14, 2007, the Company delivered to the
Executive a request for retirement that the parties understood to
constitute a notice of termination without Cause (as defined in
that certain Executive Employment Agreement dated as of the 9th day
of March, 2007 between the Company and Executive (the "Employment
Agreement") terminating the Executive's employment with the Company
on April 30, 2007;
NOW, THEREFORE, in consideration of the promises and conditions
set forth herein, the sufficiency of which is hereby acknowledged,
the Company and the Executive agree as follows:
1.
Separation Date . Mr. Bonczek will cease to be Chief
Financial Officer and General Counsel of the Company as of April
30, 2007 and his employment with the Company shall terminate
effective with the close of business on April 30, 2007 (the
"Separation Date"). Prior to the Separation Date, the Executive
shall continue to perform such executive level and transition
duties with the Company as shall be reasonably requested by the
Chairman of the Company's Board of Directors or the new Chief
Executive Officer of the Company.
2.
Execution of this Settlement Agreement . The Company hereby
advises Mr. Bonczek to consult with an attorney of his own choosing
before signing this Settlement Agreement and he may take
21 calendar days to do so (although Mr. Bonczek may
voluntarily sign this Settlement Agreement before the end of the
21-day period). Mr. Bonczek must execute and return this Settlement
Agreement to Michael Alrutz, c/o Trimeris, Inc., 3500 Paramount
Parkway, Morrisville, NC 27560, no later than 5:00 pm EST on April
5, 2007 and must execute and return the Supplemental Release no
earlier than 5:00 pm EST, but no later than 7:00pm EST, on
April 30, 2007 to the same address.
4.
Payments and Rights .
(a) On the Separation Date, Mr. Bonczek shall be entitled to
receive the Accrued Amounts and Rights (as defined in Section 6(a)
of the Employment Agreement). In addition, Mr. Bonczek may be
entitled to receive a discretionary bonus for 2007.
(b) Assuming Mr. Bonczek executes and does not revoke this
Settlement Agreement and the Supplemental Release, the Company
shall pay and provide Mr. Bonczek the payments and benefits
described in Section 6 of the Employment Agreement. In accordance
with Section 409A of the Internal Revenue Code of 1986, as amended
("Section 409A") payments owed by the Company to the Executive
pursuant to Section 6 of the Employment Agreement will be delayed
to the extent the Company considers necessary to avoid the
imposition of any accelerated or additional tax to the Executive
under Section 409A until the day that is six months plus one day
after the Separation Date or such earlier date as permitted under
Section 409A (the "New Payment Date") and provided that in no event
shall any payments begin sooner than the eighth day following
execution of this Settlement Agreement. (Mr. Bonczek agrees that,
absent new and contrary guidance from the Internal Revenue Service
before the New Payment Date, no amounts in Section 6 of the
Employment Agreement shall be paid before the New Payment Date,
except that the six-month payment delay shall not apply if he dies
before the New Payment Date.) The aggregate of any payments that
otherwise would have been paid to Executive during the period
between the Separation Date and the New Payment Date pursuant to
Section 6 of the Employment Agreement shall be paid to the
Executive in a lump sum on such New Payment Date. Thereafter, the
payments pursuant to Section 6 of the Employment Agreement that
remain outstanding as of the day immediately following the New
Payment Date shall be paid ratably and without delay in accordance
with the Company's regular payroll practices for the remainder of
the period set forth in Section 6 of the Employment Agreement.
Medical coverage will be provided per Section 4(a) and 6(d)(ii) of
the Employment Agreement. During the two years of coverage
beginning as of the Termination Date, the Company will continue to
pay directly the portion of the premiums it paid for him while
employed. The parties anticipate that the direct payment of
premiums will not be taxable to the Executive, but, if Internal
Revenue Service prevails in a position to the contrary, the Company
will pay any income taxes applicable to the payment of the premiums
and the payments pursuant to this sentence (but not interest and
penalties due from Mr. Bonczek); provided that, to the extent
necessary to avoid the imposition of any accelerated or additional
tax to the Executive under Section 409A, such payments of income
taxes shall be delayed until the New Payment Date and the aggregate
of any such payments that otherwise would have been paid to
Executive during the period between the Separation Date and the New
Payment Date shall be paid to the Executive in a lump sum on such
New Payment Date.
5.
Release and Waiver . For and in partial consideration of the
severance benefits payments described in Section 4(c) above,
Executive hereby releases, waives and forever discharges the
Company, its parent, affiliates and subsidiaries, and all of its
benefit plans, plan administrators, trustees, agents, subsidiaries,
affiliates, employees, officers, directors, shareholders,
successors and assigns (hereafter the "Releasees") from any and all
liability, actions, charges, causes of action, demands, damages,
attorneys' fees or claims for relief or remuneration of any kind
whatsoever, whether known or unknown at this time, arising out of
or in any way connected with Executive's employment, or the
termination of employment, with the Company. These include, but are
not limited to, any claim (including related attorneys' fees and
costs) under the Age Discrimination in Employment Act, Title VII of
the Civil Rights Act of 1964, the Americans with Disabilities Act,
the Worker's Adjustment and Retraining Notification Act, the Equal
Pay Act, the Corporate and Criminal Fraud Accountability Act of
2002 (Sarbanes-Oxley whistleblower provision), the North Carolina
Equal Employment Practices Act, the North Carolina Persons With
Disabilities Protection Act, the North Carolina Human Relations
Commission Bias law, the North Carolina Hazardous Chemicals Right
to Know Act and the North Carolina Retaliatory Employment
Discrimination Act, all as amended, or any other federal, state or
local law or ordinance, and any claim for benefits or other claims
under the Employee Retirement Income Security Act of 1974, as
amended (except as expressly provided below). This waiver, release
and discharge also includes without limitation, any wrongful or
unlawful discharge claims, discipline or retaliation claims, any
claims relating to any contract of employment, whether express or
implied, any claims related to promotions or demotions, any claims
for or relating to relocation, compensation including commissions,
short term or long term incentives, the Company's Executive benefit
plans and the management thereof (except as expressly provided
below), any claims for defamation, slander, libel, invasion of
privacy, misrepresentation, fraud, infliction of emotional
distress, any claims based on stress to the extent permitted by
law, any claims for breach of any covenant of good faith and fair
dealing, and any other claims relating to the Executive's
employment with the Company and termination thereof; provided that
this Settlement Agreement does not apply to any claims or rights
that may arise after the date that this Settlement Agreement is
signed; and provided further that nothing in this Settlement
Agreement prevents Executive from filing, cooperating with or
participating in any proceeding before the Equal Employment
Opportunity Commission or a state Fair Employment Practices Agency
(except that he acknowledges that he may not be able to recover any
monetary benefits in connection with any such claim, charge or
proceeding).
Executive expressly waives all claims , including those that he
does not know or suspect to exist in his favor as of the date of
this Settlement Agreement . As used in this Settlement
Agreement, the parties understand the word "claims" to include all
actions, claims and grievances, whether actual or potential, known
or unknown, and specifically but not exclusively including all
claims against the Releasees arising from Executive's employment
with the Company, the termination thereof or any other conduct by
the Releasees occurring up to the Executive's execution of this
Settlement Agreement. All such claims are forever barred by this
Settlement Agreement whether they arise in contract or tort or
under a statute or any other law.
Executive also understands and agrees that this release
extinguishes all claims, whether known or unknown, foreseen or
unforeseen, and expressly waives any rights or benefits under any
law or judicial decision providing that, in substance, a general
release does not extend to claims which a creditor does not know or
suspect to exist in his favor at the time of executing the release,
which if known by him must have materially affected his settlement
with a debtor. It is expressly understood and agreed by the parties
that this Settlement Agreement is in full accord, satisfaction and
discharge of any and all doubtful and/or disputed claims by
Executive against the Releasees, and that this Settlement Agreement
has been signed with the express intent of extinguishing all
claims, obligations, actions or causes of action as herein
described.
The Executive's waiver of claims relating to or arising under the
Employee Retirement Income Security Act of 1974, as amended, or the
Company's 401(k) Plan , shall not be construed as a waiver
of the Executive's right to Accrued Amounts and Rights as set forth
in the Employment Agreement or to a discretionary bonus, if the
Board provides one for him, for 2007, to receive his vested
benefits under the 401(k) plan, if any, in accordance with the
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