Exhibit 10.5
MANNKIND CORPORATION
EXECUTIVE SEVERANCE AGREEMENT
This Executive Severance Agreement (this "Agreement"), dated and effective as of
August 1, 2003 is between MannKind Corporation, a Delaware corporation (the
"Company"), and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the "Executive").
WHEREAS the board of directors of the Company (the "Board") has determined that
it is in the best interests of the Company and its shareholders to ensure that
the Company will have the continued dedication of the Executive, notwithstanding
the fact that the Executive does not have any form of traditional employment
contract or other assurance of job security;
AND WHEREAS the Board believes it is imperative to diminish any distraction of
the Executive arising from the personal uncertainty and insecurity that arises
in the absence of any assurance of job security by providing the Executive with
reasonable compensation and benefit arrangements in the event of termination of
the Executive's employment by the Company under certain defined circumstances.
NOW THEREFORE, in order to accomplish these objectives, the Board has caused the
Company to enter into this agreement.
1. TERM
The term of this Agreement (the "Term") shall be for a period of two (2) years
from the date of this Agreement as first appearing; provided, however, that the
Term shall automatically renew for additional one (1) year periods, unless
notice of nonrenewal is given by either party to the other party at least ninety
(90) days prior to the end of the initial Term or any renewal Term, at the end
of which this Agreement shall terminate without further action by either the
Company of the Executive.
2. EMPLOYMENT
The Executive and the Company acknowledge that, except as may otherwise be
provided under any other written agreement between the Executive and the
Company, the employment of the Executive by the Company or by any affiliated or
successor company is "at will" and may be terminated by either the Executive or
the Company or its affiliated companies at any time with or without cause,
subject to the termination payments prescribed herein.
3. ATTENTION AND EFFORT
During any period of time that the Executive remains in the employ of the
Company, and excluding any periods of paid time-off to which the Executive is
entitled, the Executive will devote all his productive time, ability, attention,
and effort to the business and affairs of the
1.
Company and the discharge of the responsibilities assigned to him hereunder, and
will seek to perform faithfully and efficiently such responsibilities. It shall
not be a violation of this Agreement for the Executive to (a) serve on
corporate, civic or charitable boards or committees, (b) deliver lectures,
fulfill speaking engagements or teach at educational institutions, (c) manage
personal investments, or (d) engage in activities permitted by the policies of
the Company or as specifically permitted by the Company, so long as such
activities do not significantly interfere with the full time performance of the
Executive's responsibilities in accordance with this Agreement. It is expressly
understood and agreed that to the extent any such activities have been conducted
by the Executive prior to the Term, the continued conduct of such activities (or
the conduct of activities similar in nature and scope thereto) during the Term
shall not thereafter be deemed to interfere with the performance of the
Executive's responsibilities to the Company.
4. TERMINATION
During the Term, employment of the Executive may be terminated as follows, but,
in any case, the nondisclosure provisions set forth in Section 7 hereof shall
survive the termination of this Agreement and the termination of the Executive's
employment with the Company:
4.1 BY THE COMPANY OR THE EXECUTIVE
At any time during the Term, the Company may terminate the employment of the
Executive with or without Cause (as defined below), and the Executive may
terminate his employment for Good Reason (as defined below) or for any reason,
upon giving Notice of Termination (as defined below).
4.2 AUTOMATIC TERMINATION
This Agreement and the Executive's employment shall terminate automatically upon
the death or Disability of the Executive. The term "Disability" as used herein
shall mean the Executive's inability (with such accommodation as may be required
by law and which places no undue burden on the Company), to perform the
Executive's essential duties for a period or periods aggregating twelve (12)
weeks in any three hundred sixty-five (365) day period as a result of physical
or mental illness, loss of legal capacity or any other cause.
4.3 NOTICE OF TERMINATION
Any termination by the Company or by the Executive during the Term shall be
communicated by Notice of Termination to the other party given in accordance
with Section 8 hereof. The term "Notice of Termination" shall mean a written
notice that (a) indicates the specific termination provision in this Agreement
relied upon, and (b) to the extent applicable, sets forth briefly the facts and
circumstances claimed to provide a basis for termination of the Executive's
employment under the provision so indicated. The failure by the Executive or the
Company to set forth in the Notice of Termination any fact or circumstance that
contributed to a showing of Good Reason or Cause shall not waive any right of
the Executive or the Company hereunder or preclude the Executive or the Company
from asserting such fact or circumstance in enforcing the Executive's or the
Company's rights hereunder.
2.
4.4 DATE OF TERMINATION
"Date of Termination" means (a) if the Executive's employment is terminated by
reason of death, the date of death, (b) if the Executive's employment is
terminated by reason of Disability, immediately upon a determination by the
Company of the Executive's Disability, and (c) in all other cases, upon the
giving of the Notice of Termination. Notwithstanding the foregoing, the party
giving the notice in the case of (c) above will have the right, but not the
obligation, to have the termination be effective upon the expiration of any
period specified in the Notice of Termination. In that event the Executive's
employment and performance of services will continue during the specified period
unless the other party (the Company in the event of a termination by the
Executive or the Executive in the event of a termination by the Company)
thereafter elects to terminate the employment of the Executive pursuant to
Section 2 and that termination is as of an earlier date. Notwithstanding the
foregoing, the Company may, upon notice to the Executive and without reducing
the Executive's compensation during such period, excuse the Executive from any
or all of his duties during such period.
5. TERMINATION PAYMENTS
In the event of termination of the Executive's employment during the Term, all
compensation and benefits shall terminate, except as specifically provided in
this Section 5.
5.1 TERMINATION BY THE COMPANY OTHER THAN FOR CAUSE OR BY THE EXECUTIVE FOR GOOD
REASON
If during the Term the Company terminates the Executive's employment other than
for Cause or the Executive terminates his employment for Good Reason, the
Executive shall be entitled to:
(a) Payment of the following accrued obligations (the "Accrued
Obligations"):
(i) the Executive's then current annual base salary
through the Date of Termination to the extent not
theretofore paid; and
(ii) if the performance criteria for earning the annual
bonus for the full fiscal year of termination have
been fully satisfied at the time of termination
(excluding any requirement that the Executive be
employed by the Company at the end of the fiscal
year), the product of (x) the amount of the annual
bonus for that year and (y) a fraction the numerator
of which is the number of days in the current fiscal
year through the Date of Termination and the
denominator of which is three hundred sixty-five
(365);
(iii) if the performance criteria for earning the annual
bonus for the full fiscal year of termination have
not been fully satisfied and the Board of Directors
of the Company determines that all such criteria
could not have been satisfied if the Executive
remained employed for the full fiscal year, no amount
for the annual bonus; and
3.
(iv) if neither (ii) nor (iii) apply, the product of (x)
the Three-Year Average Annual Bonus and (y) a
fraction the numerator of which is the number of days
in the current fiscal year through the Date of
Termination and the denominator of which is three
hundred sixty-five (365). "Three-Year Average Annual
Bonus" shall mean the average of bonuses paid or
payable to the Executive by the Company for each of
the three fiscal years immediately preceding the year
of termination (including the annualized amount of
any such bonus paid or payable for any partial year,
but not stock options or stock awards, which became
fully vested and any deferred compensation earned
during any of those years and excluding any sign-on
or other one-time-only bonus). If the Executive has
not been an executive officer of the Company during
the entire three-year period referred to above or was
not offered a bonus during any of those years, then
the Three-Year Average Annual Bonus shall be
calculated for such shorter time that he or she was
an executive officer of the Company and had been
offered a bonus; and
(v) any compensation previously deferred by the Executive
(together with accrued interest or earnings thereon,
if any) and any accrued paid time-off that would be
payable under the Company's standard policy, in each
case to the extent not theretofore paid.
(b) For eighteen (18) months after the Date of Termination or
until the Executive qualifies for comparable medical and
dental insurance benefits from another employer, whichever
occurs first, and subject to the satisfactory execution by the
Executive (including the expiration of any revocation period)
of an agreement substantially in the form of Exhibit A hereof,
the Company shall pay the Executive's premiums for
(i) health insurance benefit continuation for the
Executive and his family members, if applicable, that
the Company provides to the Executive under the
provisions of the federal Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended ("COBRA"), to
the extent that the Company would have paid such
premiums had the Executive remained employed by the
Company (such continued payment is hereinafter
referred to as "COBRA Continuation"); and
(ii) additional health coverage (such as Exec-U-Care),
life, accidental death and disability and other
insurance programs for the Executive and his family
members, if applicable, to the extent such programs
existed on the Date of Termination.
(c) Continuation of the Executive's then current annual base
salary for the fiscal year in which the Date of Termination
occurs for a period of eighteen (18) months after the Date of
Termination, subject to payment and potential reduction as set
forth in Section 5.5 hereof and further subject to the
satisfactory execution by the Executive (including the
expiration of any revocation period) of an agreement
substantially in the form of Exhibit A hereof.
4.
(d) An amount equal to the Three-Year Average Annual Bonus,
subject to the satisfactory execution by the Executive
(including the expiration of any revocation period) of an
agreement substantially in the form of Exhibit A hereof.
(e) The provision of any agreement evidencing any outstanding,
vested stock option causing such vested option to terminate
within a specified period of time after the termination of
employment shall be extended until eighteen (18) months after
the Date of Termination except that nothing herein shall
extend any such vested option beyond its original term or
shall affect its termination for any reason other than
termination of employment. The provisions of this clause (e)
are subject to the satisfactory execution by the Executive
(including the expiration of any revocation period) of an
agreement substantially in the form of Exhibit A hereof.
5.2 TERMINATION FOR CAUSE OR OTHER THAN FOR GOOD REASON
If during the Term the Executive's employment shall be terminated by the Company
for Cause or by the Executive for other than Good Reason, this Agreement shall
terminate without further obligation on the part of the Company to the
Executive, other than the Company's obligation to pay the Executive the amounts
in Section 5.1(a) (i) and (v).
5.3 EXPIRATION OF TERM
In the event the Executive's employment is not terminated prior to expiration of
the Term and notice of non-renewal is given pursuant to Section 1, this
Agreement shall terminate without further obligation on the part of the Company
to the Executive.
5.4 TERMINATION BECAUSE OF DEATH OR DISABILITY
Upon the Executive's death or Disability, this Agreement shall terminate
automatically without further obligation on the part of the Company to the
Executive or his legal representatives under this Agreement, other than the
Company's obligation, if any, to pay the Executive the benefits in Section
5.1(a) to (e).
5.5 PAYMENT SCHEDULE AND OFFSET FOR OTHER EARNINGS
All payments, or any portion thereof, payable pursuant to Section 5.1, shall be
made to the Executive within ten (10) working days of the Date of Termination
except that
(a) any amount payable to the Executive pursuant to Section
5.1(a)(ii), (iii) or (iv) or Section 5.1(d) shall be paid to
Executive when his or her bonus would have been paid if he or
she were still employed; and
(b) any payments payable to the Executive pursuant to Section
5.1(c) hereof shall be made to the Executive in the form of
salary continuation payable at normal payroll intervals during
the eighteen (18) month severance period on the dates when the
Executive would have received his or her payments of salary if
he or she were still employed and in the amounts he or she
would have received, subject to offset during the final six
(6) months of such severance period for other earnings
received by the Executive as follows:
5.
(i) The Executive shall have an affirmative duty to seek
other employment or otherwise mitigate lost earnings
during the final fifteen (15) months of the eighteen
(18) month severance period;
(ii) The Executive shall disclose to the Company any
earnings received (or that the Executive had the
right to receive) from employment or consulting
during the final fifteen (15) months of the eighteen
(18) month severance period, and the source(s) of
such earnings;
(iii) The disclosures of earnings shall be made by
Executive within two (2) weeks of any period of time
in which Executive received payment from Company and
also received earnings from another source (or had a
right to receive earnings);
(iv) The Company, in each payroll period that a severance
payment is due, shall have the right to offset on a
dollar-for-dollar basis all such earnings that the
Executive received or had the right to receive during
that payroll period.
5.6 CAUSE
For purposes of this Agreement, termination of the Executive's employment shall
be for "Cause" if it is for any of the following:
(a) A refusal to carry out any material lawful duties of the
Executive or any directions or instructions of the Board or
senior management of the Company reasonably consistent with
those duties;
(b) Failure to perform satisfactorily any lawful duties of the
Executive or any directions or instructions of the Board or
senior management reasonably consistent with those duties;
provided, however, that the Executive has been given notice
and has failed to correct any such failure within (10) days
thereafter (unless any such correction by its nature cannot be
done in 10 days, in which event the Executive will have a
reasonable time to correct failures), and provided further
that the Company shall have no obligation to give notice and
the Executive will have no such opportunity to correct more
than two times in any twelve calendar month period;
(c) Violation by the Executive of a local, state or federal law
involving the commission of a crime, other than minor traffic
violations, or any other criminal act involving moral
turpitude;
(d) The Executive's gross negligence, willful misconduct or breach
of his or her duty to the Company involving self-dealing or
personal profit;
(e) Current abuse by the Executive of alcohol or controlled
substances; deception, fraud, misrepresentation or dishonesty
by the Executive; or any incident materially compromising the
Executive's reputation or ability to represent the Company
with investors, customers or the public;
6.
(f) Any other material violation of any provision of this
Agreement by the Executive not described in (a) or (b) above,
subject to the same notice and opportunity to correct
provisions as are set forth in (b) above; or
(g) The Executive reaching a mandatory retirement age established
by the Company.
5.7 GOOD REASON
For purposes of this Agreement, "Good Reason" means:
(a) Reduction of the Executive's annual base salary to a level
below the level in effect on the date of this Agreement,
regardless of any change in the Executive's duties or
responsibilities;
(b) Any material diminution in Executive's position, authority,
duties or responsibilities or any other action by the Company
that results in a material diminution in such position,
authority, duties or responsibilities, excluding for this
purpose an isolated and inadvertent action not taken in bad
faith and that is remedied by the Company within ten (10) days
after receipt of notice thereof is provided to the Company by
the Executive;
(c) The Company's requiring the Executive to be based at any
office or location more than fifty (50) miles from the
location of the Executive's assigned worksite prior to the
Date of Termination and the Executive's residence at any such
time such requirement is imposed;
(d) Any non-renewal by the Company of this Agreement; provided,
however, that the Executive may only utilize this paragraph
(d) during the 30-day period immediately following his receipt
of the notice of non-renewal given by the Company pursuant to
Section 1 hereof;
(e) Any failure by the Company to comply with and satisfy Section
9 hereof; provided, however, that the Company's successor has
received at least ten (10) days' prior written notice from the
Company or the Executive of the requirements of Section 9
hereof; or
(f) Any other material violation of any provision of this
Agreement by the Company.
Notwithstanding the foregoing, no basis for a termination for Good Reason will
be deemed to exist unless the Executive notifies the Company in writing of any
event in (a) through (f) above and the Company or its successor fails to cure
any such event within thirty (30) days after receipt of the notice.
5.8 WITHHOLDING TAXES
Any payments provided for in this Agreement shall be paid net of any applicable
withholding required under federal, state or local law.
7.
5.9 WARN ACT
Notwithstanding the provisions of Section 5.1 through 5.5, in the event the
Executive is entitled, by operation of any act or law, to unemployment
compensation benefits or benefits under the Work Adjustment and Retraining Act
of 1988 (known as the "WARN Act") in connection with the termination of his or
her employment in addition to those required to be paid to him or her under this
Agreement, then to the extent permitted by applicable law governing severance
payments or notice of termination of employment, the Company shall be entitled
to offset against the amount payable hereunder the amounts of any such mandated
payments.
6. REPRESENTATIONS AND WARRANTIES
In order to induce the Company to enter into this Agreement, the Executive
represents and warrants to the Company that neither the execution nor the
performance of this Agreement by the Executive will violate or conflict in any
way with any other agreement by which the Executive may be bound.
7. NONDISCLOSURE; RETURN OF MATERIALS; NONSOLICITATION
7.1 NONDISCLOSURE
Except as required by his employment with the Company, the Executive will not,
at any time during the term of employment with the Company, or at any time
thereafter, directly, indirectly or otherwise, use, communicate, disclose,
disseminate, lecture upon or publish articles relating to any confidential,
proprietary or trade secret information without the prior written consent of the
Company. The Executive understands that the Company will be relying on this
covenant in continuing the Executive's employment, paying him compensation,
granting him any promotions or raises, or entrusting him with any information
that helps the Company compete with others.
7.2 RETURN OF MATERIALS
All documents, records, notebooks, notes, memoranda, drawings, computer files or
other documents made or compiled by the Executive at any time while employed by
the Company, or in his possession, including any and all copies thereof, shall
be the property of the Company and shall be held by the Executive in trust and
solely for the benefit of the Company, and shall be delivered to the Company by
the Executive upon termination of employment or at any other time upon request
by the Company.
7.3 NONSOLICITATION
During the period that Executive is receiving the payments described in Section
5.1(c) he or she will not actively solicit any employees of the Company or its
Affiliates to accept employment from any other person or entity. "Affiliate" is
defined as any entity controlling, controlled by or under common control with
the Company within the meaning of Rule 405 of the Securities and Exchange
Commission under the Securities Act of 1933.
8.
8. FORM OF NOTICE
Every notice required by the terms of this Agreement shall be given in writing
by serving the same upon the party to whom it was addressed personally or by
registered or certified mail, return receipt requested, at the address set forth
below or at such other address as may hereafter be designated by notice given in
compliance with the terms hereof:
If to the Executive: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to the Company: MannKind Corporation
Attn: President
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
or such other address as shall be provided in accordance with the terms hereof.
Except as set forth in Section 4.4 hereof, if notice is mailed, such notice
shall be effective upon mailing. Notices sent in any other manner specified
above shall be effective upon receipt.
9. ASSIGNMENT
This Agreement is personal to the Executive and shall not be assignable by the
Executive.
The Company shall assign to and require any successor (whether by purchase of
assets, merger or consolidation) to all or substantially all the business and/or
assets of the Company to assume expressly and agree to perform this Agreement in
the same manner and to the same extent that the Company would be required to
perform it if no such succession had taken place. As used in this Agreement, the
"Company" shall mean MannKind Corporation and any affiliated company or
successor to its business and/or assets as aforesaid that assumes and agrees to
perform this Agreement by contract, operation of law or otherwise; and as long
as such successor assumes and agrees to perform this Agreement, the termination
of the Executive's employment by one such entity and the immediate hiring and
continuation of the Executive's employment by the succeeding entity shall not be
deemed to constitute a termination or trigger any severance obligation under
this Agreement. All the terms and provisions of this Agreement shall be binding
upon and insure to the benefit of and be enforceable by the parties hereto and
their respective successors and permitted assigns.
10. WAIVERS
No delay or failure by any party hereto in exercising, protecting or enforcing
any of its rights, titles, interests or remedies hereunder, and no course of
dealing or performance with respect thereto, shall constitute a waiver thereof.
The express waiver by a party hereto of any right, title, interest or remedy in
a particular instance or circumstance shall not constitute a waiver thereof in
any other instance or circumstance. All rights and remedies shall be cumulative
and not exclusive of any other rights or remedies.
9.
11. AMENDMENTS IN WRITING
No amendment, modification, waiver, termination or discharge of any provision of
this Agreement, or consent to any departure therefrom by either party hereto,
shall in any event be effective unless the same shall be in writing,
specifically identifying this Agreement and the provision intended to be
amended, modified, waived, terminated or discharged and signed by the President
or Chief Executive Officer of the Company and the Executive, and each such
amendment, modification, waiver, termination or discharge shall be effective
only in the specific instance and for the specific purpose for which given. No
provision of this Agreement shall be varied, contradicted or explained by any
oral agreement, course of dealing or performance or any other matter not set
forth in an agreement in writing and signed by the Company and the Executive.
12. APPLICABLE LAW
This Agreement shall in all respects, including all matters of construction,
validity and performance, be governed by, and construed and enforced in
accordance with, the laws of the State of California without regard to any rules
governing conflicts of laws.
13. ARBITRATION; ATTORNEYS' FEES
Except in connection with enforcing Section 7 hereof, for which legal and
equitable remedies may be sought in a court of law, any dispute arising under
this Agreement shall be subject to arbitration. The arbitration proceeding shall
be conducted in accordance with the Employment Arbitration Rules of the American
Arbitration Association (the "AAA Rules") then in effect, conducted by one (1)
arbitrator either mutually agreed upon or selected in accordance with the AAA
Rules. The arbitration shall be conducted in Los Angeles County, California,
under the jurisdiction of the Los Angeles office of the American Arbitration
Association. The arbitrator shall have authority only to interpret and apply the
provisions of this Agreement, and shall have no authority to add to, subtract
from or otherwise modify the terms of this Agreement. Any demand for arbitration
must be made within sixty (60) days of the event(s) giving rise to the claim
that this Agreement has been breached. The arbitrator's decision shall be final
and binding, and each party agrees to be bound by the arbitrator's award,
subject only to an appeal therefrom in accordance with the laws of the State of
California. Either party may obtain judgment upon the arbitrator's award in the
Superior Court of Los Angeles County, California.
If it becomes necessary to pursue or defend any legal proceeding, whether in
arbitration or court, in order to resolve a dispute arising under this
Agreement, the prevailing party in any such proceeding shall be entitled to
recover costs and attorneys' fees.
14. SEVERABILITY
If any provision of this Agreement shall be held invalid, illegal or
unenforceable in any jurisdiction, for any reason, including, without
limitation, the duration of such provision, its geographical scope or the extent
of the activities prohibited or required by it, then, to the full
10.
extent permitted by law: (a) all other provisions hereof shall remain in full
force and effect in such jurisdiction and shall be liberally construed in order
to carry out the intent of the parties hereto as nearly as may be possible, (b)
such invalidity, illegality or unenforceability shall not affect the validity,
legality or enforceability of any other provision hereof, and (c) any court or
arbitrator having jurisdiction thereover shall have the power to reform such
provision to the extent necessary for such provision to be enforceable under
applicable law.
15. COORDINATION WITH CHANGE OF CONTROL AGREEMENT
The Company and the Executive are contemporaneously with this Agreement entering
into a Change of Control Agreement (the "Change of Control Agreement"), which
agreement provides for certain forms of severance and benefit payments in the
event of termination of Executive's employment under certain defined
circumstances. This Agreement is in addition to the Change of Control Agreement,
providing certain assurances to the Executive in circumstances that the Change
of Control Agreement does not cover, and in no way supersedes or nullifies the
Change of Control Agreement. Nevertheless, it is possible that a termination of
employment by the Company or by the Executive may fall within the scope of both
agreements. In such event, payments made to the Executive under Section 5.1
hereof shall be coordinated with payments made to the Executive under Section
8.1 of the Change of Control Agreement as follows:
(a) Accrued Obligations under this Agreement shall be paid first,
in which case the obligations under Section 8.1(a) of the
Change of Control Agreement need not be paid;
(b) COBRA Continuation under this Agreement shall be provided
first, in which case the obligations under Section 8.1(b) of
the Change of Control Agreement need not be provided; and
(c) The severance payments required under Sections 8.1(c) and
8.1(d) of the Change of Control Agreement shall be paid first,
in which case any severance payment required under Sections
5.1(c) and 5.1(d) hereof need not be provided.
16. EXCESS PARACHUTE PAYMENTS
If any portion of the payments or benefits under this Agreement, taken together
with any other agreement or benefit plan of the Company (including stock
options), would be characterized as an "excess parachute payment" to the
Executive under Section 280G of the Internal Revenue Code of 1986, as amended
(the "Code"), the payments and benefits shall be reduced to the extent necessary
to avoid the imposition of any tax that would otherwise be owed under Section
4999 of the Code. Such reductions shall first be made to the bonus payments
referred to in Section 5.1(a)(ii), (iii) or (iv), whichever is applicable, then
to the salary continuation payments referred to in Section 5.1(c) and then to
the salary payments under Section 5.1(a)(i). The determination of whether and
the extent to which payments and benefits are to be reduced pursuant to this
Section 16 shall be made in writing by tax accountants and/or tax lawyers
selected by the Company and reasonably acceptable to the Executive.
11.
17. ENTIRE AGREEMENT
Except as described in Section 15 hereof, this Agreement constitutes the entire
agreement between the Company and the Executive with respect to the subject
matter hereof, and all prior or contemporaneous oral or written communications,
understandings, or agreements between the Company and the Executive with respect
to such subject matter are hereby superseded and nullified in their entireties,
except that the agreement relating to proprietary information and inventions
between the Executive and the Company shall continue in full force and effect.
18. COUNTERPARTS
This Agreement may be executed in counterparts, each of which counterpart shall
be deemed an original, but all of which together shall constitute one and the
same instrument.
IN WITNESS WHEREOF, the parties have executed and entered into this Agreement
effective on the date first set forth above.
MANNKIND CORPORATION EXECUTIVE
By: /s/ ▇▇▇▇▇▇▇ Page /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------- -------------------------------
Its: Vice Chairman & CEO ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
12.
EXHIBIT A
GENERAL RELEASE AND SETTLEMENT AGREEMENT
The parties to this General Release and Settlement Agreement ("Release") between
________________________________ ("Employee") and MannKind Corporation ("the
Company") state that:
The parties desire to terminate their employment relationship. Both parties
desire to fully and finally resolve all differences and disputes without further
costs;
THEREFORE, the parties agree:
1. In consideration of the payments to Employee as provided in the Executive
Severance Agreement between the Employee and the Company dated August 1,
2003, Employee does forever release and discharge the Company and all its
parent, subsidiary and affiliated entities and all their past, present and
future directors, officers, agents, employees, or representatives from all
claims, damages, liabilities, and demands of whatever kind and character
up to the date she/he signs below ("disputes"), including, but not limited
to, arising out of or in any way related to any of the circumstances of
Employee's employment or termination of employment with the Company.
Employee releases all disputes relating to or arising out of any state,
municipal, or federal statute, ordinance, regulation, order, contract,
tort, or common law, including, but not limited to, the Age Discrimination
in Employment Act. The parties intend that the disputes released herein be
construed as broadly as possible.
2. This Release also extends to all disputes by Employee against the Company
whether known or unknown, suspected or unsuspected, past or present, and
whether or not they arise out of or are attributable to the circumstances
of Employee's employment or termination of employment with the Company.
Specifically, Employee hereby expressly waives any and all rights under
Section 1542 of the California Civil Code, which reads in full as follows:
SECTION 1542. GENERAL RELEASE. A GENERAL RELEASE DOES NOT EXTEND TO
CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS
FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM
MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
3. Employee further understands and agrees that neither the payment nor the
execution of this Release, or any part of it, shall constitute or be
construed as an admission of any alleged liability or wrongdoing
whatsoever by the Company. The Company expressly denies it has committed
any alleged liability or wrongdoing.
4. All films, files, books, computer files, correspondence, lists, equipment,
manuals, other written and graphic records and the like and all copies
thereof, affecting or relating to the business of Company which Employee
shall have prepared, used, constructed, observed, possessed or controlled,
shall be and remain the Company's sole property. Employee agrees to
deliver promptly to the Company all such property relating to the Company,
which are or have been in his possession or under his control. Employee
also agrees to continue to abide by his confidentiality of information and
inventions agreement with the Company.
13.
5. Employee agrees not to seek reemployment with the Company or any of its
affiliates.
6. This Release shall be governed by the substantive law of the State of
California. In the event of any dispute concerning the interpretation of
this Release or in any way related to Employee's employment or termination
of employment, the dispute shall be resolved by arbitration within the
County of Los Angeles, California, in accordance with the then existing
rules for employment dispute arbitration of the American Arbitration
Association, and judgment upon any arbitration award may be entered by any
state or federal court having jurisdiction thereof. The parties intend
this arbitration provision to be valid and construed as broadly as
possible. The prevailing party in such arbitration shall recover its
reasonable costs and attorneys' fees.
7. If any provision of this General Release and Settlement Agreement is
determined to be invalid or unenforceable, all of the other provisions
shall remain valid and enforceable notwithstanding, unless the provision
found to be unenforceable is of such material effect that this Release
cannot be performed in accordance with the intent of the parties in the
absence thereof.
8. No promise or agreement other than that expressed herein has been made.
This General Release and Settlement Agreement constitutes a single
integrated contract expressing the entire agreement of the parties hereto.
There are no other agreements, written or oral, express or implied,
between the parties concerning the subject matter hereof, except the
provisions set forth in this Release. This Release supersedes all previous
agreements and understandings, whether written or oral. This Release can
be amended, modified or terminated only by a writing executed by both
Employee and the President of the Company.
9. In compliance with the Olders Workers Benefit Protection Act, Employee has
been given twenty-one (21) days to review this Release before signing it.
Employee also understands that he may revoke this General Release and
Settlement Agreement within seven (7) days after it has been signed and
that it is not enforceable or effective until the seven (7) day revocation
period has expired. Additionally, employee has been advised in this
writing to consult with an attorney before executing this General Release
and Settlement Agreement.
10. THE EMPLOYEE STATES THAT HE/SHE IS IN GOOD HEALTH AND FULLY COMPETENT TO
MANAGE HIS/HER BUSINESS AFFAIRS, THAT HE/SHE HAS CAREFULLY READ THIS
GENERAL RELEASE AND SETTLEMENT AGREEMENT, THAT HE/SHE FULLY UNDERSTANDS
ITS FINAL AND BINDING EFFECT, THAT THE ONLY PROMISES MADE TO HIM/HER TO
SIGN THIS RELEASE ARE THOSE STATED AND CONTAINED IN THIS RELEASE, AND THAT
HE/SHE IS SIGNING THIS AGREEMENT KNOWINGLY AND VOLUNTARILY.
AGREED AND ACCEPTED this _______ day of __________, _______:
MANNKIND CORPORATION EXECUTIVE
By: __________________________________ __________________________________
Its: _________________________________
14.