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 John S. Patton, Ph.D. ("
you ") hereby agree as follows:
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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 Separation and General Release Agreement (this "
Agreement ") before such date pursuant to Paragraph
7(c) below.
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Resignation . You hereby resign as an officer,
director, employee, member, manager and in any other capacity with
the Company and each of its affiliates, effective as of November
21, 2008 (the " Termination Date "). The Company and
each of its affiliates hereby accept such resignation effective as
of the Termination Date. You waive any right or claim to
reinstatement as an employee of the Company or any of its
affiliates by which you were previously employed. Following the
Termination Date, you shall not be authorized to transact any
business on behalf of the Company or any its affiliates or
subsidiaries.
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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 five hundred seventy-two thousand nine hundred
seventy-two dollars and fifty cents ($572,972.50), less all
applicable withholdings and standard deductions; (b) subject to the
provisions set forth below in Paragraph 18, your Options, to the
extent outstanding and vested as of the Termination Date, will
remain exercisable for an additional period of time as provided in
Paragraph 18; and (c) provided that you timely exercise 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
premiums for you and your eligible dependents for a period
commencing on the Termination Date and ending on the earlier to
occur of (x) the twelve month anniversary of the Termination Date,
and (y) 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. To the extent that the payment of any COBRA
premiums pursuant to the foregoing clause (c) is taxable to you,
any such payment shall be made to you on or before the last day of
your taxable year following the taxable year in which the related
expense was incurred, your right to payment of such premiums shall
not be subject to liquidation or exchange for another benefit, and
the amount of such benefits that you receive in one taxable year
shall not affect the amount of such benefits that you receive in
any other taxable year. You acknowledge that the Severance Benefits
include payments that you would not otherwise be entitled to
receive, now or in the future, without entering into this
Agreement, and constitute valuable consideration for the promises
and undertakings set forth in this Agreement.
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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.
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Return of Property; Proprietary Information
Agreement. Within five days following the Termination Date,
you shall return to the Company any and all property of the Company
or any of its affiliates (collectively, the " Company
Group "), including, but not limited to, documents (in
whatever paper or electronic form they exist), things relating to
the business of the Company Group and all intellectual, electronic
and physical property belonging to the Company Group that is in
your possession or control, including but not limited to any
computers, cell phones, blackberries, emails, documents, power
point presentations, business plans, financial plans, personnel
information and/or financial statements belonging to the Company
Group or that contain confidential information of the Company
Group. Your signature below constitutes your certification that you
have returned all documents and other items provided to you by the
Company Group, developed or obtained by you as a result of your
employment with the Company Group, or otherwise belonging to the
Company Group. You hereby reaffirm and agree to observe and abide
by the terms of your Employee Agreement (the " Employee
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 employees of the
Company Group. The obligations under the Employee Agreement that
survive the termination of your employment are specifically
incorporated herein by reference.
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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 that certain letter agreement between you and
the Company dated September 18 , 2007 (the " 2007
Letter Agreement ") and/or the Company's Change of Control
Severance Plan; (ii) any and all Claims relating to, or arising
from, your right to receive or purchase any form of equity in the
Company or any Releasee, including, without limitation, any claims
for fraud, misrepresentation, breach of fiduciary duty, breach of
duty under applicable state corporate law, and securities fraud
under any state or federal law; (iii) any and all Claims for
wrongful discharge of employment; termination in violation of
public policy; discrimination; harassment; retaliation; breach of
contract, both express and implied; breach of a covenant of good
faith and fair dealing, both express and implied; promissory
estoppel; negligent or intentional infliction of emotional
distress; negligent or intentional misrepresentation; negligent or
intentional interference with contract or prospective economic
advantage; unfair business practices; defamation; libel; slander;
negligence; personal injury; assault; battery; invasion of privacy;
false imprisonment; and conversion; (iv) any and all Claims for
violation of any federal, state or municipal law, regulation,
ordinance, constitution or common law, including, but not limited
to, Title VII of the Civil Rights Act of 1964; the Civil Rights Act
of 1991; the Age Discrimination in Employment Act of 1967; the
Americans with Disabilities Act of 1990; the Fair Labor Standards
Act; the Employee Retirement Income Security Act of 1974; The
Worker Adjustment and Retraining Notification Act; the
Sarbanes-Oxley Act; the California Fair Employment and Housing Act;
the California Family Rights Act; and the California Labor Code,
including, but not limited to section 201, et seq, . section
970, et seq ., sections 1400-1408; and all amendments to
each such Act as well as the regulations issued thereunder; and (v)
any and all Claims for attorneys' fees and costs.
Notwithstanding the foregoing, nothing
in this Paragraph 6 shall release (i) any obligations owed by the
Company expressly described in this Agreement, (ii) any claims you
may have for indemnification under any indemnification agreement
that you have with the Company, any of the Company's charter
documents, or under California L
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