Exhibit 10.320
SEPARATION
AGREEMENT
This Separation Agreement (this
“ Agreement ”) is entered into between Zofia E.
Dziewanowska, M.D., Ph.D., an individual (“ Executive
”), and Ligand Pharmaceuticals Incorporated, (the “
Company ”), effective as of the Effective Date (as
defined below).
WHEREAS, Executive is currently
employed by the Company as its Vice President, Clinical Research
and Regulatory;
WHEREAS, both the Executive and the
Company have determined that it is in their mutual best interests
formally and finally resolve all matters between them;
and
WHEREAS, Executive and the Company
desire to set forth the terms and conditions of the foregoing
arrangement.
NOW, THEREFORE, in consideration of
the mutual promises herein contained, the parties agree as
follows:
1. Effective Date; Termination of
Employment .
(a) Effective Date . This
Agreement shall become effective upon the occurrence of both of the
following events: (i) execution of the Agreement by the
Parties; and (ii) expiration of the revocation period
applicable under the Release (as defined in Section 2(g)
below) without any party thereto having given notice of revocation.
The date of the last to occur of the foregoing events shall be
referred to in this Agreement as the “ Effective Date
.” Until and unless both of the foregoing events occur, this
Agreement shall be null and void.
(b) Termination of Employment
Status . Executive’s employment by the Company shall
terminate effective as of March 31, 2009 (the “
Termination Date ”), including her position as Vice
President, Clinical Research and Regulatory (and any other titles
or officer positions she may hold) of the Company (and any of its
affiliates and subsidiaries).
(c) Consulting Agreement .
Following the Termination Date, Executive and the Company intend to
enter into a consulting agreement (the “ Consulting
Agreement ”) pursuant to which Executive will continue to
provide certain services to the Company, on the terms and
conditions set forth therein.
2. Compensation .
(a) Compensation Through
Termination Date . On the Termination Date, the Company shall
issue Executive her final paycheck, reflecting (i) her earned
but unpaid base salary through March 31, 2008, and
(ii) all accrued, unused PTO (vacation and sick leave) due
Executive through the Termination Date. Subject to Sections 2(b)
and (c) below, Executive acknowledges and agrees that with her
final check, the payment of any outstanding expense reimbursements,
and the payment of any amounts payable under any of the employee
benefit plans of the Company in accordance with the terms of such
plans, Executive will have received all monies, bonuses,
commissions, expense reimbursement, vacation pay, or other
compensation she earned or was due during her employment by the
Company.
(b) Compensation on Effective
Date . On the Effective Date, in consideration for the Release
and her continued compliance with Section 3 below, Executive
shall be entitled to receive a cash lump sum payment of $499,200,
consisting of (i) $332,800, representing Executive’s
annual base salary as in effect immediately prior to the
Termination Date, and (ii) $166,400, representing
Executive’s maximum target bonus for 2009. In addition, for a
period of twelve (12) months following the Termination Date
(or such earlier date on which the Executive becomes employed by
another employer offering substantial similar medical benefit
coverage) (the “ COBRA Coverage Period ”), the
Company shall pay the monthly premium Executive would be required
to pay for continuation coverage pursuant to the Consolidated
Omnibus Budget Reconciliation Act of 1985, as amended (“
COBRA ”) for Executive and her eligible dependents who
were covered under the Company’s health plans as of the
Termination Date such that Executive’s premiums are the same
as for active employees. Executive shall be solely responsible for
all matters relating to her continuation of coverage pursuant to
COBRA, including, without limitation, her election of such coverage
and her timely payment of the employee portion of any COBRA
premiums. Following the COBRA Coverage Period, the Executive will
then be responsible for paying the full cost of continuation
coverage under COBRA for the Executive and her eligible dependents
should the Executive elect to continue coverage after such
period.
(c) Stock Awards . On the
Effective Date, the vesting and/or exercisability of any
outstanding unvested portions of Executive’s Stock Awards (as
defined below) shall be automatically accelerated. Following the
Termination Date, the vested Stock Awards shall be exercisable by
Executive in accordance with the terms of the Company equity
plan(s) and stock award agreements pursuant to which they were
granted. With respect to Executive’s Stock Awards granted on
or after August 17, 2007, such Stock Awards may be exercised
by Executive (or Executive’s guardian or legal
representative) until (i) the date that is nine
(9) months following the Termination Date, or (ii) such
longer period as may be specified in the applicable stock award
agreement; provided , however , that in no event
shall any Stock Award remain exercisable beyond the original
outside expiration date of such Stock Award. In addition, with
respect to Executive’s Stock Awards granted prior to
August 17, 2007, such Stock Awards may be exercised by
Executive (or Executive’s guardian or legal representative)
until (i) December 31, 2009 first occurring following the
date the Stock Award would otherwise have expired following
Executive’s termination, or (ii) such longer period as
may be specified in the applicable stock award agreement;
provided , however , that in no event shall any such
Stock Award remain exercisable beyond the original outside
expiration date of such Stock Award. For purposes of this
Agreement, “ Stock Awards ” means all stock
options, stock appreciation rights, restricted stock and such other
awards granted pursuant to the Company’s stock option and
equity incentive award plans or agreements and any shares of stock
issued upon exercise thereof.
(d) Exclusive Remedy . Except
as otherwise expressly required by law (e.g., COBRA) or as
specifically provided herein, all of Executive’s rights to
compensation, benefits, and other amounts hereunder (if any)
accruing after the termination of Executive’s employment by
or service to the Company shall cease upon such termination. In
addition, Executive acknowledges and agrees that she is not
entitled to any reimbursement by the Company for any taxes payable
by her as a result of the payments and benefits received by her
pursuant to this Section 2, including, without limitation, any
excise tax imposed by Section 4999 of the Code.
(e) No Mitigation . Executive
shall not be required to mitigate the amount of any payment
provided for in this Section 2 by seeking other employment or
otherwise, nor shall the amount of any payment or benefit provided
for in this Section 2 be reduced by any compensation earned by
Executive as the result of employment by another employer or
self-employment or by retirement benefits; provided ,
however , that loans, advances (other than salary advances)
or other amounts owed by Executive to the Company under a written
agreement may be offset by the Company against amounts payable to
Executive under this Section 2.
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(f) Company Property .
Executive shall immediately surrender to the Company all lists,
books and records of, or in connection with, the Company’s
business, and all other property belonging to the Company, it being
distinctly understood that all such lists, books and records, and
other documents, are the property of the Company, other than any
such property that the Company determines is necessary for
Executive’s provision of consulting services pursuant to the
Consulting Agreement. The Company expressly agrees that Executive
continued access to her computer, files and office are necessary
for her provision of consulting services pursuant to the Consulting
Agreement.
(g) Release .
Executive’s right to receive any of the payments or other
compensation to be made to Executive pursuant to Sections 2(b) and
(c) shall be contingent on Executive providing to the Company
(and failing to revoke) a full and complete general release in the
form attached hereto as Exhibit A (the “
Release ”) within fifty-five (55) days following
the Termination Date. In the event the Release does not become
effective (and the revocation period thereunder expired) within the
fifty-five (55) day period following the Termination Date,
Executive shall not be entitled to the aforesaid payments and
benefits.
3. Certain Covenants .
Executive hereby expressly reaffirms her obligations under the
Company’s Confidentiality and Proprietary Rights Agreement, a
copy of which is attached to this Agreement as Exhibit B and
incorporated herein by reference, and agrees that such obligations
shall survive the Termination Date and any termination of her
services to the Company. The Company shall be entitled to cease all
severance payments to Executive in the event of her breach of this
Section 3.
4. Nondisparagement;
Confidentiality . Executive agrees that neither she nor anyone
acting by, through, under or in concert with her shall disparage or
otherwise communicate negative statements or opinions about the
Company, its board members, officers, employees or business. The
Company agrees that neither its board members nor officers shall
disparage or otherwise communicate negative statements or opinions
about Executive. Except as may be required by law, neither
Executive, nor any member of Executive’s family, nor anyone
else acting by, through, under or in concert with Executive will
disclose to any individual or entity (other than Executive’s
legal or tax advisors) the terms of this Agreement.
5. Dispute Resolution
.
(a) Mediation . In the event
of any dispute, claim or controversy based on, arising out of or
relating to Executive’s employment or this Agreement (a
“ Dispute ”), the parties shall attempt to
resolve the dispute in non-binding mediation in accordance with the
National Rules for the Resolution of Employment Disputes (the
“ Rules ”) of the American Arbitration
Association (“ AAA ”). If the parties are unable
to agree upon a mediator, one shall be appointed by the AAA in
accordance with its Rules. Each party shall pay the fees of its own
attorneys and all other expenses connected with presenting its
case. Other costs of the mediation, including the cost of any
record or transcripts of the mediation, AAA’s administrative
fees, the fee of the mediator, and all other fees and costs, shall
be borne by the Company. If the matter has not been resolved
pursuant to the aforesaid mediation procedure within thirty
(30) days of the commencement of such procedure, or such other
period as the parties agree, either party may submit the dispute to
arbitration pursuant to Section 5(b) below.
(b) Arbitration . Any Dispute
not settled pursuant to Section 5(a) above shall be settled by
final and binding arbitration in San Diego, California, before a
single neutral arbitrator in accordance with the Rules of the AAA,
and judgment on the award rendered by the arbitrator may be entered
in any court having jurisdiction. Arbitration may be compelled
pursuant to the California Arbitration Act (Code of Civil Procedure
§§ 1280 et seq .). If the parties are
unable to agree upon an arbitrator, one shall be appointed by the
AAA in accordance with its Rules. Each party shall pay the fees of
its own attorneys, the expenses of
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its witnesses and
all other expenses connected with presenting its case;
provided , however , Executive and the Company agree
that, to the extent permitted by law, the arbitrator shall award
reasonable attorneys’ fees to the prevailing party;
provided , further , that the prevailing party shall
be reimbursed for such fees, costs and expenses within sixty
(60) days following any such award; provided ,
further , that the parties’ obligations pursuant to
the foregoing provisos shall terminate on the tenth (10
th
) anniversary
of the Termination Date. Other costs of the arbitration, including
the cost of any record or transcripts of the arbitration,
AAA’s administrative fees, the fee of the arbitrator, and all
other fees and costs, shall be borne by the Company.
(c) Other Relief . This
Section 5 is intended to be the exclusive method for resolving
any and all claims by the parties against each other for payment of
damages under this Agreement or relating to Executive’s
employment; provided , however , that neither this
Agreement nor the submission to mediation or arbitration shall
limit the parties’ right to seek provisional relief,
including without limitation injunctive relief, in any court of
competent jurisdiction pursuant to California Code of Civil
Procedure § 1281.8 or any similar statute of an applicable
jurisdiction. Seeking any such relief shall not be deemed to be a
waiver of such party’s right to compel arbitration. Both
Executive and the Company expressly waive their right to a jury
trial.
6. Litigation Cooperation .
Executive agrees to provide reasonable assistance to the Company
(including the board of directors and any committees thereof) and
its counsel and accountants in any financial audits or internal
investigation involving securities, financial, accounting, or other
matters, and in its defense of, or other participation in, any
administrative, judicial, or other proceeding arising from any
charge, complaint or other action which has been or may be filed
relating to the period during which Executive was employed by the
Company. The Company agrees to reimburse Executive for her
reasonable expenses incurred in connection with such cooperation
within thirty (30) days after receipt of an invoice from
Executive setting forth in reasonable detail such expenses.
Notwithstanding the foregoing, the Company shall have no obligation
by virtue of this Section 6 to pay Executive for time spent by
Executive in any pending or future litigation or arbitration where
Executive is a co-defendant or party to the arbitration or
litigation or with respect
