UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of
report (Date of earliest event reported): December 23, 2010
(Exact
Name of Registrant as Specified in Charter)
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Delaware
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0-24006
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94-3134940
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(State
or Other Jurisdiction
of
Incorporation)
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(Commission
File
Number)
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(IRS
Employer
Identification
No.)
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455
Mission Bay Boulevard South
San
Francisco, California 94158
(Address
of Principal Executive Offices and Zip Code)
Registrant’s
telephone number, including area code: (415) 482-5300
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
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¨
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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¨
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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¨
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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¨
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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(b) On
December 23, 2010, Bharatt
M. Chowrira, who serves as Senior Vice President and Chief Operating Officer of
Nektar Therapeutics, a Delaware corporation (the "Company"), agreed with the
Company that he would depart from the Company on January 3, 2011 (the
"Departure Date"). In connection with his departure, Mr. Chowrira
entered into a Separation and General Release Agreement with the Company (the
"Separation Agreement"). The Separation Agreement provides for the
following severance
benefits which are substantially in accordance with the severance benefits
provided in Mr. Chowrira’s offer letter agreement dated December 1, 2008:
(i) the Company will pay Mr. Chowrira a lump sum severance payment of
$600,000, as well as monthly severance payments of $36,533 for up to 6 months
(unless he commences employment with another employer prior to the expiration of
this 6-month period), less all applicable withholdings and standard deductions;
(ii) the Company will be responsible for 12 months of COBRA continuation
coverage for Mr. Chowrira and his eligible dependents (unless he commences
employment with another employer prior to the expiration of this 12-month
period); (iii) Mr. Chowrira’s stock options, to the extent outstanding and
vested as of the Departure Date, will generally remain exercisable for 18 months
following the Departure Date; (iv) Mr. Chowrira covenants not to solicit
the Company's employees for a period of 12 months following the Departure Date;
and (v) Mr. Chowrira provides a general release of all claims,
obligations and liabilities against the Company and its
affiliates. The summary of the Separation Agreement set forth above
is qualified in its entirety by reference to the Separation Agreement, a copy
which is filed with this filing as Exhibit 10.1 and is incorporated herein by
reference.
(e) Reference
is made to Item 5.02(b) with respect to the description of compensatory
arrangement related to the departure of Mr. Chowrira, which description is
incorporated by reference into this Item 5.02(e) in its
entirety.
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Item 9.01
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Financial
Statements and Exhibits.
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(d)
Exhibits:
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Exhibit
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No.
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Description
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10.1
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Separation
and General Release Agreement between Nektar Therapeutics and Bharatt M.
Chowrira, Ph.D., J.D., dated December 23,
2010.
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Pursuant
to the requirement of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned thereunto
duly authorized.
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By:
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/s/ Gil M. Labrucherie
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Gil
M. Labrucherie
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General
Counsel and Secretary
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Date:
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December
30,
2010
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EXHIBIT
INDEX
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Exhibit
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No.
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Description
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10.1
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Separation
and General Release Agreement between Nektar Therapeutics and Bharatt M.
Chowrira, Ph.D., J.D., dated December 23,
2010.
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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 Bharatt M. Chowrira, Ph.D., J.D. (“you”)
hereby agree as follows:
1. 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 Agreement before such date
pursuant to Paragraph 7(c) below and provided that you sign and return this
Agreement to the Company on or before January 15, 2010.
2. Termination of
Employment. Your employment as Senior Vice President and Chief
Operating Officer of the Company, as well as your employment in any other
capacity for the Company or any of its affiliates, shall terminate, effective
January 3, 2011 (the “Termination
Date”). Following the Termination Date, you shall not be
authorized to transact any business on behalf of the Company or any its
affiliates or subsidiaries.
3. 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 ten (10) business days following the Effective Date in the amount of
$600,000.00, less all applicable withholdings and standard deductions (the “First Severance
Payment”); (b) the Company will also make up to six (6) monthly severance
payments to you in the amount of $36,533.33, less all applicable withholdings
and standard deductions (the “Monthly Severance
Payment”) commencing on January 31, 2011 and with the last of such
payments being made on June 30, 2011; provided that (except as set
forth in the next parenthetical phrase) you shall cease being entitled to
receive Monthly Severance Payments on the earlier to occur of (i) the date you
commence new employment; or (ii) June 30, 2011 (it being understood that if you
obtain new employment during the period ending June 30, 2011, you will be
entitled to a proportionate payment at the next regularly scheduled payment
date, in respect of the Monthly Severance Payments, based on the number of days
elapsed during the month prior to the date you obtained such new employment;
thus, for example, if you obtain employment on the 16th day of January 2011, you
will receive a Monthly Severance Payment for January equal to $17,677.35 (i.e.
$36,533.33 x 15/31) and thereafter you will no longer be entitled to any
additional Monthly Severance Payments; (c) in accordance with your amended and
restated offer letter, dated December 1, 2008 (the “Offer
Letter”), and as set forth below in Paragraph 17, your deadline to
exercise your right to acquire the shares of the Company’s common stock
underlying the vested portion of your Options will be the eighteen (18) month
anniversary of the Termination Date; and (d) 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 payments for you and
your eligible dependents for a period commencing on the Termination Date and
ending on the earlier to occur of (i) the twelve month anniversary of the
Termination Date, and (ii) 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. You acknowledge
that the Severance Benefits represent payments that you would not otherwise be
entitled to receive, now or in the future, without entering into this Agreement,
and constitutes valuable consideration for the promises and undertakings set
forth in this Agreement.
4. 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.
5.
Return of
Property; Proprietary Information Agreement. Within five days following
the Termination Date, you shall return to the Company any and all Company
property, including, but not limited to, documents (in whatever paper or
electronic form they exist), things relating to the business of the Company and
all intellectual, electronic and physical property belonging to the Company that
is in your possession or control, including but not limited to any emails,
documents, power point presentations, business plans, financial plans, personnel
information and/or financial statements belonging to the Company or that contain
confidential information of the Company. Your signature below constitutes your
certification that you have returned all documents and other items provided to
you by the Company, developed or obtained by you as a result of your employment
with the Company, or otherwise belonging to the Company. Notwithstanding the
foregoing, you may keep your computer and your cellular telephone (and
corresponding telephone number for your personal use) and the Company will
provide to you reasonable IT assistance in transitioning your calendar and
contacts information from the Company’s network to your personal system;
provided, however, you will, at the earliest practicable date, deliver your
computer to the Company’s IT department for the purpose of creating a mirror
data back-up copy for the Company’s archival records. You hereby reaffirm and
agree to observe and abide by the terms of your Employment Agreement, executed
by you on November 17, 2009 (the “Employment
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
Company employees. The obligations under the Employment Agreement that survive
the termination of your employment are specifically incorporated herein by
reference.
6.
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 your offer letter, dated May 13, 2008,
and as amended and restated in the Offer Letter, 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 of the Company’s charter documents, or
under California Labor Code Section 2802 or other applicable law, the
indemnification agreement previously entered into between you and the company,
or for coverage under any of the Company’s directors and officers insurance
policies; (iii) your claims for any benefits that are vested as of the
Termination Date under the Company’s health, welfare, 401k or stock option
plans; (iv) your claims for underlying workers’ compensation benefits; or (v)
any claims pursuant to Paragraph 7(e) of this Agreement.
7. Acknowledgment of
Waiver of Claims under ADEA. You acknowledge that you are
waiving and releasing any rights you may have under the Age Discrimination in
Employment Act of 1967 (“ADEA”) and
that this waiver and release is knowing and voluntary. You and the Company agree
that this waiver and release does not apply to any rights or claims that may
arise under the ADEA after the Effective Date of this Agreement. You
acknowledge that the consideration given for this waiver and release Agreement
is in addition to anything of value to which you were already
entitled. You further acknowledge that you have been advised by this
writing that:
(a) you
should consult with an attorney prior to executing
this Agreement;
(b) you
have at least twenty-one (21) days within which to consider this
Agreement;
(c) you
have seven (7) days following the date that you sign this Agreement to revoke
the Agreement; provided, however, that any such revocation must be in writing
and delivered to Howard W. Robin at the Company’s principal office, by close of
business on or before the seventh day from the date that you sign this
Agreement;
(d) this
Agreement shall not be effective until the eighth day after you execute and do
not revoke this Agreement; and
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(e) nothing
in this Agreement prevents or precludes you from challenging or seeking a
determination in good faith of the validity of this waiver under the ADEA, nor
does it impose any condition precedent, penalties or costs from doing so, unless
specifically authorized by federal law.
8. Civil Code
Section 1542/Unknown Claims. Each party represents that such
party is not aware of any claims against the other party other than the claims
that are released by this Agreement. Each party acknowledges that
such party has had the opportunity to be advised by legal counsel and is
familiar with the provisions of California Civil Code 1542, below, which
provides as follows:
A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH
IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH
THE DEBTOR.
Being
aware of said code section, each party agrees to expressly waive any rights such
party may have thereunder, as well as under any statute or common law principles
of similar effect.
9.
No Pending
or Future Lawsuits. Each party represents that such party has no
lawsuits, claims, or actions pending in such party’s name, or on behalf of any
other person or entity, against the other party or any of the Releasees. Each
party also represents that such party does not intend to bring any claims on
such party’s own behalf
or on behalf of any other person or entity against the other party or any of the
Releasees. You also promise to opt out of any class or representative action and
to take such other steps as you have the power to take to disassociate yourself
from any class or representative action seeking relief against the Company
and/or any other Releasee regarding any of the claims released in this
Agreement.
10. Confidentiality
of Agreement. You agree to keep terms of this Agreement in the strictest
confidence and, except as required by law, not reveal the terms of this
Agreement to any persons except your immediate family, your attorney, and your
financial advisors (and to them only provided that they also agree to keep the
information completely confidential), and the court in any proceedings to
enforce the terms of this Agreement.
11. Non-Disparagement. Each
party agrees not to make any oral or written statement that disparages or
criticizes the other party, and in your case, the Company’s management,
employees, products or services, or damages the other party’s reputation or
impairs the other party’s normal operations; provided, however, that nothing in
this Agreement shall prohibit either party from providing truthful information
or testimony in response to any court order, subpoena, or government
investigation, or in connection with any legal proceeding between the Company
and you. For the purposes of this Section 11, the reference to the
Company as a party to this Agreement includes only the Company’s Section 16(b)
officers and the members of its Board of Directors.
12. Entire Agreement.
Except for the Employment Agreement and Equity Award Agreements (as
defined below in Paragraph 17), the terms of which are specifically incorporated
herein as set forth herein in Paragraphs 5 and 17, this Agreement constitutes
the entire agreement between you and the Company concerning your employment with
and separation from the Company and all the events leading thereto and
associated therewith, and supersedes and replaces any and all prior agreements
and understandings, both written and oral, concerning your relationship with the
Company.
13. No Admission of
Liability. Each party understands and acknowledges that this
Agreement constitutes a compromise and settlement of any and all potential
disputed claims. No action taken by the either party hereto, either
previously or in connection with this Agreement, shall be deemed or construed to
be: (a) an admission of the truth or falsity of any potential claims; or (b) an
acknowledgment or admission by such party of any fault or liability whatsoever
to the other party or to any third party.
14.
Authority.
The Company represents and warrants that the undersigned has the authority to
act on behalf of the Company and to bind the Company and all who may claim
through it to the terms and conditions of this Agreement. Similarly, you
represent and warrant that you have the capacity to act on your own behalf and
on behalf of all who might claim through you to bind them to the terms and
conditions of this Agreement. The Company and you each warrant and represent
that there are no liens or claims of lien or assignments in law or equity or
otherwise of or against any of the claims or causes of action released
herein.
15. Solicitation of
Employees. You agree that for a period of twelve (12) months
immediately following the Termination Date, you shall not either directly or
indirectly solicit, induce, recruit or encourage any of the Company's employees
to terminate their employment with the Company, or attempt to solicit, induce,
recruit, or encourage employees of the Company to become employed or engaged as
a consultant, either for yourself or for any other person or
entity. Furthermore, you understand and acknowledge that the Company
may at its sole discretion notify any new employer of your ongoing rights and
obligations under this Agreement and the Employment Agreement.
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16. Material Breaches
of Agreement. You acknowledge and agree that any breach of
Paragraphs 5, 6, 7, 9, 11, or 15 shall constitute a material breach of the
Agreement and in the case of a breach by you, shall entitle the Company
immediately to recover the consideration discussed in Paragraph 3 above, except
as prohibited by applicable law. In the event that the Company or you
brings an action to enforce or effect their rights under this Agreement, the
prevailing party shall be entitled to recover their reasonable attorneys’ fees
and expenses incurred in connection with such an action.
17. Equity
Interests. The Company has previously granted you various
stock options to acquire 745,000 shares of the Company’s common stock (the
“Options”). As
of the termination date, 425,832 shares of the Company’s common stock underlying
the Options are vested (the “Vested Option
Shares”). Your deadline to exercise your right to acquire all
or any portion of the Vested Option Shares is date which is eighteen months
following the Termination Date. The remaining 319,168 shares of the
Company’s common stock underlying the Options are hereby forfeited by you in
accordance with the terms of your stock option agreement and related stock
option notice and the applicable equity incentive plan of the Company
(collectively, the “Equity Award
Agreements”). You hereby acknowledge and waive that, except as
set forth in Paragraph 3 and in this Paragraph 17, you have no further right or
benefits under any agreement to receive or acquire any security or derivative
security in or with respect to the Company or any of its affiliates or
subsidiaries.
18. Waivers;
Modifications. No waiver of any provision or consent to any
exception to the terms of this Agreement shall be effective unless in writing
and signed by the party to be bound and, then, only to the specific purpose,
extent and instance so provided. This Agreement may not be modified,
amended, altered or supplemented except by the execution and delivery of a
written agreement executed by you and an authorized representative of the
Company.
19. Severability. If
any provision of the Agreement or the application thereof is held invalid, such
invalidity shall not affect other provisions or applications of the Agreement
which can be given effect without the invalid provisions or
application.
20. Counterparts. The
Agreement may be executed in counterparts, and each counterpart when executed
shall have the efficacy of a signed original. Photographic copies of
such signed counterparts may be used in lieu of the originals for any
purpose.
21. Choice of
Law. The Agreement shall be construed and enforced in
accordance with, and governed by, the laws of the State of California (without
regard to choice of law principles).
22. Public
Statements. In its public statements regarding your departure,
the Company will state only that: “Bharatt Chowrira has left the
Company” and explain generally that the parties entered into this Agreement to
the extent required by applicable securities laws and regulations.
23. Voluntary
Execution of Agreement. This Agreement is executed voluntarily
and without any duress or undue influence on the part or behalf of the parties
hereto, with the full intent of releasing all claims. The parties
acknowledge that: (a) they have read this Agreement; (b) they
understand the terms and consequences of this Agreement and of the releases it
contains; and (c) they are fully aware of the legal and binding effect of this
Agreement.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
set forth below.
AGREED
AND ACCEPTED:
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Nektar
Therapeutics
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Bharatt
M. Chowrira, Ph.D., J.D.
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/s/
Dorian Rinella
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/s/
Bharatt M. Chowrira
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By: Dorian
Rinella
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Bharatt
M. Chowrira Ph.D, J.D.
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Title:
SVP, Human Resources
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Date: December
23, 2010
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Date: December
23, 2010
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