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Exhibit 10.1
GENERAL RELEASE AND SEPARATION
AGREEMENT
This General Release and Separation Agreement (hereafter
"Agreement") is entered into between Bradford S. Goodwin (the
"Executive"), and Novacea, Inc. (the "Company"), effective eight
days after the date of the Executive’s signature (the
"Effective Date"), unless he revokes his acceptance as provided in
Paragraph 7(c), below.
WHEREAS, the Executive is the Chief Executive Officer of the
Company;
WHEREAS, the parties entered into an Executive Severance
Benefits Agreement dated April 13, 2006, pursuant to which the
Executive is entitled to payment of certain benefits upon a
termination of his employment by the Company other than for
Cause;
WHEREAS, the Company and Executive both wish to terminate the
Executive’s employment other than for Cause, effective
January 1, 2007;
WHEREAS, the Company and the Executive now wish to document the
termination of their employment relationship and fully and finally
to resolve all matters between them;
THEREFORE, in exchange for the good and valuable consideration
set forth herein, the adequacy of which is specifically
acknowledged, the Executive and the Company hereby agree as
follows:
1. Separation of Employment . The Executive resigned all
positions that the Executive held as an officer and member of the
Board of Directors of the Company, and of all subsidiaries of the
Company, effective December 7, 2006. The Executive’s
employment shall terminate effective January 1, 2007 (the
"Separation Date").
2. Payment of Accrued Wages and Expenses . On the
Separation Date, the Executive shall be paid an amount equal to
accrued wages, including any remaining accrued, unused Vacation,
through the Separation Date, less applicable taxes and other
authorized withholding. The Company shall promptly reimburse the
Executive for all reasonable and properly documented business
expenses incurred through the Separation Date that are submitted by
him on or before January 1, 2007, in accordance with the
Company’s travel and expense policies. As of the Separation
Date, the Executive shall no longer have the right to participate
in any Company benefit plans, except as required by law. The
Executive shall be permitted to participate in the Company’s
401(k) Plan in calendar year 2007, to the full extent permitted by
law.
3. Bonus for the Fiscal Years Ending December 31, 2006
and December 31, 2007 .
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(a) The Executive shall be paid a bonus for the fiscal year
ending December 31, 2006, in the amount of fifty-six percent
(56%) of the Executive’s FY 2006 bonus target. The bonus
shall be paid in a lump sum no later than thirty (30) days
following the Separation Date, less applicable taxes and other
authorized withholding. In no event shall the Executive have the
ability to affect the timing of the payment of compensation by
acceleration, deferral, or otherwise under this
Section 3(a).
(b) For the fiscal year ending December 31,
2007, the Executive shall be paid a bonus equal to fifty percent
(50%) of the Executive’s FY 2006 bonus target. The bonus
shall be paid in a single lump sum on a date which is no earlier
than six (6) months and two days following the Separation
Date, but no later than July 31, 2007, less applicable taxes
and other authorized withholding. The payment of this bonus is
intended to comply with the requirements of Internal Revenue Code
Sections 409A(a)(2(A)(i) and 409A(a)(2)(B)(i) and the proposed or
final Treasury regulations promulgated thereunder. In no event
shall the Executive have the ability to affect the timing of the
payment of compensation by acceleration, deferral, or otherwise
under this Section 3(b).
4. Stock Options .
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(a) Executive has been granted the options to purchase shares of
the Company’s common stock described in Exhibit A hereto
(collectively, the "Options"). As of the Separation Date, the
Executive shall be vested in that number of shares of the
Company’s common stock set forth next to each such Option
(the "Vested Options"), which includes an amount equal to vesting
that would have occurred over the twelve-month period following the
Separation Date, had the Executive remained continuously employed
by the Company during such period. Except as otherwise provided in
this Agreement, the Executive acknowledges and agrees that the
portion of each Option that is unvested as of the Separation Date
is forfeited and shall cease to be exercisable as of the Separation
Date. The Executive may exercise the Vested Options in accordance
with their original terms of grant as modified by this Paragraph
4.
(b) Consistent with the other terms of the Plan(s) under which
the options were issued, the Executive shall be permitted, subject
to subparagraph (d) below, to exercise Vested Options on or
before December 31, 2007.
(c ) In the event that the Separation Date falls within the
Change of Control Benefits Period, as defined in the Executive
Severance Benefits Agreement dated April 13, 2006 (the "April
13 Agreement"), the vesting and/or exercisability of each of
Executive’s stock awards shall be immediately accelerated
100%.
(d) Notwithstanding anything in the Agreement to the contrary,
within 29 days of the execution of this Agreement, the Executive
will inform the Company whether or not the Executive elects to
accept any of the benefits of an extended exercisability period
with respect to all or any portion of his Incentive Stock Options.
Any failure of the Executive to so notify the Company shall be
treated as an acceptance of such extended exercisability
period.
5. Severance . Beginning on the date which is no earlier
than six (6) months and two days following the Separation
Date, but no later than July 31, 2007, the Company shall:
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(a) Pay to the Executive in a single lump sum six
(6) months of salary at the Executive’s final base rate,
less applicable taxes and other authorized withholding;
and
(b) Commencing on July 3, 2007, pay to the Executive in
accordance with the Company’s normal payroll practices, six
(6) months of salary at the Executive’s final base rate, less
applicable taxes and other authorized withholding.
The payments of severance detailed under this Section 5 are
intended to comply with the requirements of Internal Revenue Code
Sections 409A(a)(2(A)(i) and 409A(a)(2)(B)(i) and the proposed or
final Treasury regulations promulgated thereunder.
6. COBRA . Executive’s health care coverage shall
continue until January 31, 2007. Thereafter, the Executive
shall be eligible to continue, at his own cost, health care
benefits in accordance with the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended ("COBRA"). The Executive
shall receive detailed instructions regarding his COBRA rights
following the Separation Date.
7. General Release of Claims by the Executive .
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(a) The Executive, on behalf of himself and his executors,
heirs, administrators, representatives and assigns, hereby releases
and forever discharges the Company and all predecessors, successors
and their respective parent corporations, affiliates, related,
and/or subsidiary entities, and all of their past and present
investors, directors, shareholders, officers, general or limited
partners, employees, attorneys, agents and representatives, and
employee benefit plans in which the Executive is or has been a
participant by virtue of his employment with the Company (the
"Company Releasees"), from any and all claims, debts, demands,
accounts, judgments, rights, causes of action, equitable relief,
damages, costs, charges, complaints, obligations, promises,
agreements, controversies, suits, expenses, compensation,
responsibility and liability of every kind and character whatsoever
(including attorneys’ fees and costs), whether in law or
equity, known or unknown, asserted or unasserted, suspected or
unsuspected (collectively, "Claims"), which the Executive has or
may have had against such entities based on any events or
circumstances arising or occurring on or prior to the date hereof
or on or prior to the Separation Date, arising directly or
indirectly out of, relating to, or in any other way involving in
any manner whatsoever the Executive’s employment by the
Company or the separation thereof, and any and all claims arising
under federal, state, or local laws relating to employment,
including without limitation claims of wrongful discharge, breach
of express or implied contract, fraud, misrepresentation,
defamation, or liability in tort, claims of any kind that may be
brought in any court or administrative agency, any claims arising
under Title VII of the Civil Rights Act of 1964, the Age
Discrimination in Employment Act, the Americans with Disabilities
Act, the Older Workers Benefit Protection Act, the Fair Labor
Standards Act, the Employee Retirement Income Security Act, the
Family and Medical Leave Act, the California Fair Employment and
Housing Act, the California Family Rights Act, the California Labor
Code and similar state or local statutes, ordinances, and
regulations. Notwithstanding the generality of the foregoing, the
Executive does not release the following claims and rights:
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