Exhibit 10.1
NABI
BIOPHARMACEUTICALS
12276 WILKINS
AVENUE
ROCKVILLE, MD
20852
Dated Effective as of
March 17, 2009
Matthew W. Kalnik, Ph.D.
7620 Old Georgetown Road
Bethesda, MD 20814
Dear Matt:
You have agreed to serve as Senior
Vice President of Strategic Planning & Business Operations
of Nabi Biopharmaceuticals (“Nabi”), which term for
purposes of this Agreement shall include controlled affiliates of
Nabi Biopharmaceuticals. This Agreement supersedes and replaces
your Letter Offer of Employment between you and Nabi dated
June 29, 2007, as amended by the letter agreement dated
July 16, 2008, and your Special Severance Agreement between
you and Nabi dated October 3, 2008. The following are the
terms of such employment:
1. TERM : You will
serve as Senior Vice President of Strategic Planning &
Business Operations for a period beginning on the date hereof and
ending on March 17, 2012, or the date on which your employment
is sooner terminated as provided below (the “Employment
Period”). Upon expiration of the Employment Period or any
extension pursuant to this sentence, it shall be automatically
extended for an additional three-year period unless either party
gives to the other written notice not less than thirty
(30) days prior to the end of the Employment Period that it or
he does not wish to extend the term of this Agreement. In the event
that your employment by Nabi continues beyond the Employment
Period, the terms and conditions of this Agreement shall continue
except that your continued employment by Nabi may be terminated by
either party upon thirty (30) days’ prior notice unless
you and Nabi shall have entered into a written agreement to the
contrary.
2. SALARY: Your salary
will be $300,000 per year, payable in accordance with the usual
payroll practices of Nabi during the Employment Period. Your salary
will be subject to discretionary annual increases as determined by
Nabi’s Board of Directors or the Compensation Committee
thereof.
3. BONUS:
(A) You will be
entitled to participate in Nabi’s VIP Management Incentive
Program or any comparable bonus plan maintained by Nabi (the
“Bonus Plan”). Your target bonus under the plan will be
at least fifty-five percent (55%) of your base salary as of
the end of the end of the applicable Bonus Plan year. Your
participation in the Bonus Plan shall be subject to the terms and
conditions of the Bonus Plan. Payments, if applicable, under the
Bonus Plan shall be payable by the fifteenth (15
th
) day of the
third month after the end of the relevant calendar year.
(B) In addition, Nabi will pay you a
cash bonus in the indicated amount if any of the occur of any of
the following events occur during the Employment Period:
(i) you will receive a one-time bonus of $10,000 upon the
execution of a definitive licensing and partnering agreement by
Nabi pursuant to which all or substantially all of Nabi’s
rights and assets with respect to PentaStaph are successfully
out-licensed to another company; (ii) you will receive a
one-time bonus of $40,000 upon the execution of a definitive
licensing and partnering agreement by Nabi pursuant to which all or
substantially all of Nabi’s rights and assets with respect to
NicVAX are successfully out-licensed to another company; and
(iii) you will receive a one-time bonus of $50,000 upon the
occurrence of a Change of Control (as defined in Sections 4(d)(i),
(ii) and (iii) of your Amended and Restated Change of
Control Severance Agreement with Nabi dated March 17, 2009
(the “Change of Control Agreement”)). Any bonus payable
pursuant to this Section 3(B) shall be paid notwithstanding,
and in addition to, the payment of any Change of Control
compensation pursuant to the Change of Control Agreement.
Notwithstanding any provision to the contrary in this Agreement, in
no event shall the aggregate amount of bonuses paid pursuant to
this Section 3(B) exceed $50,000, and the amount of any bonus
payable under this Section 3(B) shall be reduced to the extent
necessary so that such bonus, when added to any other bonus
previously paid under this Section 3(B), would not exceed
$50,000 in the aggregate.
4. SERP; LIFE
INSURANCE: Annually before July 1 during each full
year period during the Employment Period, Nabi shall pay you
$12,000, grossed up for taxes, so that you can make a contribution
to your Supplemental Executive Retirement Plan. Nabi also will
provide you at Nabi’s cost with term life insurance of
$500,000 in excess of the term life insurance coverage Nabi
provides to its employees generally.
5. DUTIES AND EXTENT OF
SERVICES:
(A) During the Employment Period,
you agree to devote substantially all of your working time, and
such energy, knowledge, and efforts as is necessary to the
discharge and performance of your duties provided for in this
Agreement and such other reasonable duties and responsibilities
consistent with your position as are assigned to you from time to
time by the person to whom you report. You shall be located
primarily in Nabi’s Maryland headquarters facilities, but
shall travel to other locations from time to time as shall be
reasonably required in the course of performance of your
duties.
(B) You shall have such duties as
are delegated to you by the person to whom you report provided that
such duties shall be reasonably consistent with those duties
assigned to executive officers having similar titles in
organizations comparable to Nabi.
6.
TERMINATION:
(A) You may terminate the Employment
Period (a) thirty (30) days after you provide written
notice of termination to Nabi, (b) by your death or
(c) upon your written notice to Nabi that of “Good
Reason,” which is defined as any material breach of this
Agreement by Nabi, or the occurrence of any one or more of the
following without your prior express written consent: (i) a
material diminution in your authority, duties or responsibilities,
(ii) a requirement that you report to any person or entity
other than Nabi’s Chief Executive Officer, or (iii) a
change of more than twenty-five (25) miles in your primary
office location from Nabi’s Rockville, Maryland facility;
provided, however, that a termination for Good Reason by you can
occur only if (x) you have given Nabi written notice of the
existence of a condition giving rise to Good Reason within ninety
(90) days after you learn of such condition, (y) Nabi not
fully cured the condition giving rise to Good Reason within thirty
(30) days after receipt of such notice, and (z) you
provide written notice to Nabi of your termination for Good Reason
within ninety (90) days after the end of such 30-day
period.
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(B) Nabi may terminate the
Employment Period (a) in the event Nabi reasonably determines
that you are unable to perform the essential functions of your
position, with or without reasonable accommodation, for any three
(3) consecutive months as the result of mental or physical
incapacity or (b) for “Cause,” which is defined as
(i) acts of fraud or embezzlement or other felonious acts by
you, (ii) your refusal to comply with reasonable directions in
connection with the performance of your duties as provided for in
Section 5 of this Agreement after notice of such failure is
delivered to you, (iii) failure to comply with the provisions
of Section 8 or 9 of this Agreement or (iv) your gross
negligence or intentional misconduct in connection with the
performance of your duties as provided for in this Agreement
including your failure to comply with the written policies of Nabi,
provided that, in the event of a proposed termination under clause
(ii) or clause (iv) of this clause (B), you shall receive
ten (10) days’ prior written notice of such proposed
termination and within such period you shall be afforded an
opportunity to be heard by Nabi’s Board of Directors or a
duly appointed committee of the Board as to whether grounds for
termination under these clauses exists.
(C) Nabi may otherwise terminate the
Employment Period upon thirty (30) days’ prior notice to
you.
(D) Your confidentiality and
non-competition agreements set forth in Sections 8 and 9 below and
your agreement to cooperate set forth in Section 10 below
shall survive the termination of your employment regardless of the
reasons therefor.
7.
SEVERANCE:
(A) In the event that your
employment terminates (a) pursuant to Section 6(C)
(termination without Cause), (b) pursuant to
Section 6(A)(c) (termination for Good Reason) or (c) upon
or following the expiration of the Employment Period if Nabi has
given notice of non-extension pursuant to Section 1, you shall
receive the benefits set forth in Sections 7(B), 7(C), 7(D) and
7(E). In the event your employment terminates pursuant to
Section 6(B)(a) (incapacity), or as a result of your death,
you or your estate shall receive the benefits set forth in
Section 7(E). Notwithstanding the foregoing provisions of this
Section 7(A), in the event your employment terminates under
circumstances that entitle you to receive compensation and other
benefits pursuant to your Change of Control Agreement, you shall
not receive the benefits set forth in Section 7(B), 7(C), 7(D)
and 7(E).
(B) Subject to Section 7(A),
Nabi will pay you your base salary as of the effective date of such
termination (“Severance Pay”) and maintain in effect
your benefits under Section 4 of this Agreement and such other
benefits provided by Nabi to you as of the
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effective date of such termination to the extent
that Nabi continues to maintain those benefits for other similarly
situated employees (to the extent allowed under, and subject to the
limitations of, applicable plans) for eighteen (18) months.
Severance Pay shall be made in accordance with the usual payroll
practices of Nabi.
(C) Subject to Section 7(A),
Nabi shall pay for executive outplacement services up to $18,000 by
an organization selected by Nabi in its sole discretion.
(D) Subject to Section 7(A), if
the Employment Period ends during a calendar year, Nabi shall pay
you incentive compensation under the Bonus Plan for such
c
