Exhibit 10.40
EXECUTIVE CHANGE OF CONTROL SEVERANCE AGREEMENT
THIS EXECUTIVE CHANGE OF CONTROL SEVERANCE AGREEMENT dated as
of January 1, 2000 by and between Dura Pharmaceuticals, Inc., (the "Company"),
and _____________ ("Executive");
W I T N E S S E T H:
WHEREAS, the Company desires to create a greater incentive for
Executive to remain in the employ of the Company, particularly in the event of
any possible change or threatened change of control of the Company,
NOW, THEREFORE, in partial consideration of Executive's past
and future services to the Company and the mutual covenants contained herein,
the parties hereto hereby agree as follows:
1. TERMINATION FOLLOWING A CHANGE OF CONTROL.
(a) QUALIFYING TERMINATION. Executive shall be entitled to the
compensation and benefits listed in Paragraph 1(b), in addition to compensation
and benefits to which Executive would otherwise be entitled as of the date of
termination, if Executive's employment with the Company is terminated either (i)
by the Company for any reason other than for Cause or (ii) by Executive for Good
Reason, in each case within two (2) years following the occurrence of any Change
of Control or successive Change of Control that occurs during the Period of
Coverage (in each case a "Qualified Termination") and Executive properly
executes, and does not revoke or attempt to revoke, a release of claims against
the Company, its affiliates and their employees and agents in the form attached
as EXHIBIT A.
(b) COMPENSATION AND BENEFITS.
(i) LUMP SUM PAYMENT OF SALARY AND BONUS. Within ten (ten)
business days after a Qualified Termination (or, if later, the last day of
any period during which the release referred to in Paragraph 3 may be revoked
by Executive), the Company shall make a lump sum cash payment to Executive,
subject to any mandatory tax withholding, equal to ____ times the sum of
Executive's Base Salary and Executive's Average Annual Bonus.
(ii) WELFARE BENEFIT COVERAGE. The Company will, at normal employee
rates, provide Executive and, to the extent available before the Qualified
Termination, Executive's eligible dependents with coverage under the Company's
medical/dental plan, life insurance and accident plan and disability plan until
the earlier of (A) ___________ months after the date of Executive's Qualified
Termination or (B) the first date that Executive is covered under another
employer's program which provides substantially the same level of benefit
coverage without exclusion for pre-existing conditions. After this period of
coverage, Executive (and, if
1.
applicable, Executive's eligible dependents) may elect to continue coverage
under the Company's group medical/dental plan at Executive's own expense in
accordance with the Consolidated Omnibus Budget Reconciliation Act of 1985, as
amended ("COBRA") and, for purposes of determining the maximum period of COBRA
coverage, such maximum period will begin immediately following the end of
Company-subsidized coverage.
(iii) ACCELERATION OF STOCK OPTIONS. Each outstanding Company stock
option which Executive holds at the time of a Qualified Termination, to the
extent not otherwise exercisable for all the shares of Company common stock
subject to that stock option, will immediately become exercisable for all those
option shares and may be exercised for any or all of those shares as fully
vested shares.
(iv) ACCELERATION OF RESTRICTED STOCK. All contractual restrictions
and repurchase rights shall immediately lapse with respect to any shares of
Company restricted stock held by Executive at the time of a Qualified
Termination.
(v) DEFERRED COMPENSATION PLAN. Solely for purposes of
determining the commencement date for the payment of any deferred
compensation to which Executive may be entitled under a Company non-qualified
deferred compensation plan, Executive's employment with the Company will be
deemed to continue for a period of ____ months after a Qualifying
Termination. However, no portion of the payments Executive is entitled to
receive under Section 1 of this Agreement will be eligible for deferral under
such plan.
(vi) CASH-OUT OF AFFILIATE STOCK OPTIONS. Each outstanding option
granted to Executive on stock of ▇▇▇▇▇▇ Development Corporation II, Inc. and any
similar outstanding option granted to Executive on securities of an affiliate of
the Company shall be cancelled as of the date of Executive's Qualified
Termination. With respect to each such option, whether or not vested, Executive
shall be entitled to an immediate cash payment equal to the excess, if any, of
the aggregate Fair Market Value (as defined below) of the securities subject to
such option and the aggregated exercise price of such option.
(vii) EXCESS TAX GROSS-UP PAYMENT. If any compensation payable
hereunder, either alone or when aggregated with other compensation payable to
Executive, would constitute a parachute payment that would subject Executive to
an excise tax under Section 4999 of the Internal Revenue Code, Executive shall
be entitled to receive an additional lump sum cash payment, subject to mandatory
tax withholding, which, when added to all compensation payable to Executive that
constitutes a parachute payment, provides Executive with the same after
tax-compensation that he would have received from such parachute payments had
none of such compensation constituted a parachute payment. The procedures for
making such payment are set forth in Section 2 hereof.
(viii) JOB SEARCH ASSISTANCE. The Company will, at its sole
expense, provide Executive with individual outplacement counseling for up to
twelve (12) months by a provider selected by the Company at levels customary for
positions held by Executive.
(ix) LIMITATION ON ACCELERATION. Notwithstanding the above, if it
is reasonably determined by the Company's Board of Directors, upon consultation
with Company management
2.
and the Company's independent auditors, that the acceleration of vesting of
stock options or restricted stock or the acceleration and cash-out of affiliate
options provided under Paragraph 1(b)(iii), (iv) or (vi) above upon a Change in
Control (to the extent that those Paragraphs provide for acceleration or
cash-out that would not otherwise occur under the terms of the instruments
evidencing such options or restricted stock) would preclude accounting for any
proposed business combination of the Company as a pooling of interests, and the
Board of Directors otherwise desires to approve such a proposed business
transaction which requires as a condition to the closing of such transaction
that it be accounted for as a pooling of interests, then, solely to the extent
necessary to permit such accounting, such acceleration or cash-out shall not
occur. The previous sentence shall not limit any acceleration of vesting or
cash-out of any option or restricted stock that would occur, in absence of
Paragraphs 1(b)(iii) (iv) and (vi) above, under the terms of the instruments
underlying such option or restricted stock.
The compensation and benefits payable hereunder shall not be reduced or offset
by any amounts that Executive earns or could earn from any other sources
following Executive's Qualified Termination. However, except to the extent the
Company expressly agrees otherwise in writing, if the Company becomes obligated
to pay Executive any severance pay or severance benefits (excluding any amounts
deemed to be received by Executive on account of the forgiveness of any loan due
by Executive, if applicable) under a separate employment or severance agreement
or arrangement, the benefits payable hereunder shall be reduced by the amount of
benefits payable under such other agreement or arrangement.
(c) TERMINATIONS BY REASON OF SUBSEQUENT TRANSACTIONS. Notwithstanding
the foregoing, if an otherwise Qualifying Termination occurs by reason of the
sale of a subsidiary of the Company or all or a portion or the assets or
business of the Company or one of its subsidiaries and Executive is offered a
Comparable Position (as defined below) with the purchaser or the parent of the
purchaser or the sold subsidiary, then Executive shall not be entitled to any
benefits under this Paragraph 1, whether or not Executive accepts such position.
However, if Executive accepts such position and, within two (2) years following
the Change of Control, Executive's employment is involuntarily terminated
without Cause or by Executive for Good Reason, Executive shall be entitled to
the benefits under Paragraph 1(b), less any severance benefits (excluding any
amounts deemed to be received by Executive on account of the forgiveness of any
loan due by Executive, if applicable) or similar benefits payable by the entity
from which his or her employment is terminated.
2. EXCISE TAX GROSS-UP PROCEDURES.
The amount of any such Tax Gross-Up to which Executive becomes
entitled under Paragraph 1(b)(vii), will be determined pursuant to the
following:
X = Y divided by (1 - (A + B + C)), where
X is the total dollar amount of the Tax Gross-Up
payable to Executive;
Y is the total Excise Tax imposed on Executive;
3.
A is the Excise Tax rate in effect at the time;
B is the highest combined marginal federal income and
applicable state income tax rate in effect for
Executive, after taking into account the
deductibility of state income taxes against federal
income taxes to the extent allowable, for the
calendar year in which the Tax Gross-Up is paid; and
C is the applicable Hospital Insurance (Medicare) Tax
Rate in effect for Executive for the calendar year in
which the Tax Gross-Up is paid;
provided if there is a change in the tax laws after the date hereof that would
render the amount determined above insufficient to fully reimburse Executive on
an after-tax basis for the amount of any Excise Tax, Executive shall be entitled
to such additional amount as may be necessary to provide him with such
reimbursement.
Within ninety (90) days after a determination is made by the
Internal Revenue Service or Executive's tax advisor that an item of compensation
or benefit payable hereunder constitutes a parachute payment under Code Section
280G for which Executive is liable for an Excise Tax, Executive shall identify
the nature of the payment to the Company and submit to the Company the
calculation of the Excise Tax attributable to that payment and the Tax Gross-Up
to which Executive is entitled with respect to such tax liability. The Company
will pay such Tax Gross-Up to Executive (net of all applicable withholding
taxes, including any taxes required to be withheld under Code Section 4999)
within ten (10) business days after Executive's submission of the calculation of
such Excise Tax and the resulting Tax Gross-Up, provided such calculations
represent a reasonable interpretation of the applicable law and regulations.
In the event that Executive's actual Excise Tax liability is
determined by a Final Determination to be greater than the Excise Tax liability
previously taken into account for purposes of the Tax Gross-Up paid to Executive
pursuant to this Section 2, then within ninety (90) days following the Final
Determination, Executive shall submit to the Company a new Excise Tax
calculation based upon the Final Determination. Within ten (10) business days
after receipt of such calculation, the Company shall pay Executive the
additional Tax Gross-Up attributable to such excess Excise Tax liability.
In the event that Executive's actual Excise Tax liability is
determined by a Final Determination to be less than the Excise Tax liability
previously taken into account for purposes of the Tax Gross-Up paid to Executive
pursuant to this Section 2, then Executive shall refund to the Company, promptly
upon receipt, any federal or state tax refund attributable to the Excise Tax
overpayment.
For purposes of this Paragraph 2, a "Final Determination"
means an audit adjustment by the Internal Revenue Service that is either (i)
agreed to by both Executive (or his estate) and the Company (such agreement by
the Company to be not unreasonably withheld) or
4.
(ii) sustained by a court of competent jurisdiction in a decision with which
Executive and the Company concur (such concurrence by the Company to be not
unreasonably withheld) or with respect to which the period within which an
appeal may be filed has lapsed without a notice of appeal being filed.
3. FAILURE TO EXECUTE A RELEASE.
All compensation and benefits under Paragraph 1 above are in
consideration for Executive's execution of a release of claims against the
Company, its affiliates and their employees and agents in the form attached as
EXHIBIT A hereto, which release Executive does not subsequently revoke or
attempt to revoke. If Executive doesn't properly execute such a release or if
Executive attempts to revoke such release, Executive will not be entitled to any
of the benefits provided under Paragraph 1.
4. DEFINITIONS.
(a) AVERAGE ANNUAL BONUS. "Average Annual Bonus" means, at any
time, the greatest of (i) the average of the annual bonuses
paid to Executive in each of the two (2) years prior to the
Change of Control, (ii) the average of the annual bonuses paid
to Executive in each of the two (2) years prior to the
Qualifying Termination or (iii) in the event Executive is
entitled to receive an annual bonus under a written agreement
for the year during which the Qualifying Termination occurs,
the annual bonus to which Executive is entitled under such
written agreement. In the event Executive, at the time of the
Qualifying Termination, has received only one (1) annual
bonus, the Average Annual Bonus for such Executive shall be
the amount of such bonus.
(b) BASE SALARY. "Base Salary" means the greater of the annual
rate of base salary in effect for Executive at the time of
Executive's Qualified Termination or the annual rate of base
salary in effect for Executive immediately before the Change
of Control.
(c) CAUSE. "Cause" means Executive's conviction of any felony,
Executive's commission of any act of fraud or embezzlement, or
Executive's unauthorized use or disclosure of confidential
information or trade secrets of the Company or its
subsidiaries.
(d) CHANGE OF CONTROL. A "Change of Control" shall have occurred
if:
(i) a majority of the directors of the Company are
persons other than persons: (A) for whose election
proxies shall have been solicited by the Board of
Directors of the Company, or (B) who are then serving
as directors appointed by the Board of Directors to
fill vacancies on the Board of Directors caused by
death or resignation (but not by removal) or to fill
newly-created directorships; or
(ii) thirty percent (30%) or more of the outstanding
voting power of the Company shall have been acquired
or beneficially owned (as defined in
5.
Rule 13d-3 under the 1934 Act or any successor rule
thereto) by any person or group of two or more
persons acting as a partnership, limited partnership,
syndicate, or other group acting in concert for the
purpose of acquiring, holding or disposing of voting
stock of the Company; or
(iii) a reorganization, merger, consolidation or other
corporate transaction or sale or other disposition of
all or substantially all of the assets of the Company
occurs (other than (i) a transaction with a
subsidiary of the Company or (ii) a transaction in
which the holders of voting stock of the Company
immediately before the merger as a class continue to
hold immediately after the merger more than fifty
percent (50%) of all outstanding voting power of the
surviving or resulting corporation or its parent
(including, without limitation, a company which owns
directly or indirectly the Company or all or
substantially all of its pre-acquisition assets) in
substantially the same proportion as their ownership
of common stock of the Company immediately before the
transaction); or
(iv) the Company's shareholders approve the complete
liquidation or dissolution of the Company.
(e) COMPARABLE POSITION. A Comparable Position, for purposes of
this Agreement, means a position with a successor to part or
all of the business of the Company if the terms of the
position do not differ from Executive's prior position with
the Company in any manner that would constitute Good Reason,
assuming that the terms of Executive's employment were changed
to the terms of such position with the successor.
(f) FAIR MARKET VALUE. For purposes of Paragraph 1(b)(vi), "Fair
Market Value" per unit of a security subject to an option on
any relevant date shall be determined under the terms of the
instruments evidencing the option, if such instrument provides
an objective method for determining such fair market value or,
if such instrument does not so provide, shall be determined in
accordance with the following provisions:
(i) If the security is not at the time listed or admitted to
trading on any Stock Exchange but is traded on the NASDAQ
National Market System, the Fair Market Value shall be the
closing selling price per unit of security on the date in
question, as the price is reported by the National Association
of Securities Dealers through the NASDAQ National Market
System or any successor system. If there is no closing selling
price for the security on the date in question, then the Fair
Market Value shall be the closing selling price on the last
preceding date for which such quotation exists; or
(ii) If the security is at the time listed or admitted to
trading on any Stock Exchange, then the Fair Market Value
shall be the closing selling price per unit of security on the
date in question on the Stock Exchange determined by the Plan
Administrator to be the primary market for the security, as
such price is officially
6.
quoted in the composite tape of transactions on such exchange.
If there is no closing selling price for the security on the
date in question, then the Fair Market Value shall be the
closing selling price on the last preceding date for which
such quotation exists; or
(iii) If the security is at the time neither listed nor
admitted to trading on any Stock Exchange nor traded on the
NASDAQ National Market System, then such Fair Market Value
shall be determined pursuant to an appraisal made by an
independent appraiser mutually agreed to by the Company and
Executive.
(g) GOOD REASON. "Good Reason" means (i) a material reduction in
Executive's level of duties or responsibilities or the nature
of Executive's functions or (ii) a reduction in Executive's
base salary or a reduction in Executive's total cash
compensation (consisting of base salary and target bonus), or
(iii) the failure to provide Executive with employee benefits
(including medical/dental, disability and life insurance) that
are substantially equivalent to the benefits provided to
Executive immediately before the Change of Control, or (iv) a
relocation of Executive's principal place of employment by
more than thirty (30) miles, if the new location is both (A)
more than thirty (30) miles from Executive's principal
residence and (B) farther from Executive's principal residence
than Executive's principal place of employment immediately
before such relocation, or (v) the breach of the terms of any
compensation agreement or arrangement between the Company and
Executive or (vi) the repudiation or failure by the Company or
its successor to acknowledge (upon Executive's written
request) or to comply with any of its obligations under this
Agreement.
(h) PERIOD OF COVERAGE. The "Period of Coverage" shall be the
period commencing with the date of this Agreement and ending
ten (10) years thereafter, unless either (i) the Company, by
written action of its Board of Directors, extends the period
or (ii) the Company has entered into a definitive agreement to
consummate a transaction that would constitute a Change of
Control, in which case the period of coverage will continue
until the date specified by the Board of Directors or the date
on which the pending transaction is consummated or abandoned,
respectively.
5. ARBITRATION.
Except as otherwise provided in Paragraph 2, any controversy
between Executive and the Company involving the construction or application of
any of the terms, provisions, or conditions of this Agreement or otherwise
arising out of or relating to this Agreement shall be settled by binding
arbitration in accordance with the then current applicable rules of the American
Arbitration Association, and judgment on the award rendered by the arbitrator(s)
may be entered by any court having jurisdiction thereof. The location of the
arbitration shall be in San Diego, California. The expenses incurred by both
parties in settling such controversy, including the expenses of arbitration and
reasonable attorney fees, shall be born by the Company.
7.
6. MISCELLANEOUS.
(a) CAPTIONS. The captions in this Agreement are not part of the
provisions hereof, are merely for the purpose of reference and
shall have no force or effect.
(b) GOVERNING LAW. This Agreement is made in, and shall be
governed by and construed in accordance with the laws of, the
State of California, to the extent not preempted by the
Employee Retirement Income Security Act of 1974, as amended.
This Agreement, to the extent that it provides for severance
benefits, together with similar agreements with other
executives of the Company, is intended, for purposes of ERISA,
to qualify as an employee welfare benefit plan for a select
group of management or highly compensated employees.
(c) AMENDMENT OR MODIFICATION. This Agreement contains the entire
agreement of the parties with respect to the subject matter
hereof and no amendment or modification shall be effective
unless made in writing executed by an authorized officer of
the Company and Executive.
(d) SUCCESSORS AND BENEFICIARIES. This Agreement shall be binding
on and inure to the benefit of the successors, assigns, heirs,
devisees and personal representatives of the parties,
including any successor to the Company by merger or
combination and any purchaser of all or substantially all of
the assets of the Company. Should Executive die before receipt
of all benefits to which Executive becomes entitled under this
Agreement, the payment of such benefits will be made, on the
due date or dates hereunder had Executive survived, to the
executors or administrators of Executive's estate.
(e) NOTICES. All notices given hereunder shall be in writing and
shall be sent by registered or certified mail or delivered by
hand and, if intended for the Company, shall be addressed to
it (if sent by mail) or delivered to it (if delivered by hand)
at its principal office for the attention of the Secretary of
the Company or at such other address and for the attention of
such other person of which the Company shall have given notice
to Executive in the manner herein provided; and, if intended
for Executive, shall be delivered personally or shall be
addressed (if sent by mail) at the then current residence
address as reflected in the personnel records of the Company,
or at such other address or to such designee of which
Executive shall have given notice to the Company in the manner
herein provided. Each such notice shall be deemed to be given
on the date received at the address of the addressee or, if
delivered personally, on the date so delivered.
(f) DISTRIBUTIONS. The benefits to which Executive may become
entitled under this Agreement will be paid, when due, from the
general assets of the Company. Executive's right (or the right
of the executors or administrators of Executive's estate) to
receive any such payments will at all times be that of a
general creditor of the Company and will have no priority over
the claims of other general creditors of the Company. The
benefits provided under this Agreement are
8.
intended to be unfunded for purposes of the Employee
Retirement Security Act of 1974.
(g) RIGHTS AND REMEDIES. All rights and remedies provided pursuant
to this Agreement or by law will be cumulative, and no such
right or remedy will be exclusive of any other. A party may
pursue any one or more rights or remedies hereunder or may
seek damages or specific performance in the event of another
party's breach hereunder or may pursue any other remedy by law
or equity, whether or not stated in this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
DURA PHARMACEUTICALS, INC.
By
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Cam ▇. ▇▇▇▇▇▇
Chairman and Chief Executive Officer
EXECUTIVE:
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9.
[LOGO]
EXHIBIT A
SEPARATION AGREEMENT AND GENERAL RELEASE
In consideration of the severance benefits to be provided to ______
("Employee") under the Executive Change of Control Severance Agreement (the
"Severance Agreement"), dated as of January 1, 2000, by and between Dura
Pharmaceuticals, Inc., a Delaware corporation ("Dura") and Employee, this
General Release (the "Release") is entered into as of ___________, 20__, by
and between Dura and Employee with respect to the following:
(a) Employee has been employed as a _______________ for Dura.
(b) The employment relationship was terminated effective ______________
, 20__.
(c) Dura and Employee desire to enter into an agreement with regard to
termination of that employment relationship to resolve any and all known or
unknown claims between them, neither party admitting any liability or fault.
THE PARTIES THEREFORE HEREBY AGREE AND PROMISE in consideration of all
of the following terms and conditions as follows:
1. Employee's employment with Dura is terminated effective
____________, 20__ .
2. As contemplated by the Severance Agreement, and in
consideration of the severance benefit (excluding any amounts
deemed to be received by Employee on account of the
forgiveness of any loan due by Employee, if applicable) to be
provided to Employee under the Severance Agreement, Employee
irrevocably and unconditionally releases forever Dura and each
of its stockholders, predecessors, successors, assigns,
agents, directors, officers, employees, representatives,
affiliates, and all persons acting by, through, under, or in
concert with any of them (collectively referred to as
"Releases"), from any and all claims, complaints, liabilities,
obligations, agreements, damages, and actions of any nature,
known or unknown, suspected or unsuspected, that he/she ever
had, now has, or hereafter may have by reason of any matter,
cause, or thing relating in any way to his/her employment
relationship or the termination of his/her employment
relationship with Dura.
3. Employee further waives any an all claims based on state or
federal statutes prohibiting discrimination involving age,
sex, race, color, national origin, physical or mental
impairment, marital status, or religion, including but not
limited to Title VII, the Equal Pay Act, or the Fair
Employment and Housing Act, whether such claim be based upon
an action filed by the Employee or by a governmental agency.
1
4. Employee expressively waives and relinquishes all rights and
benefits afforded by Section 1542 of the Civil Code of the
State of California, and does so understanding and
acknowledging the significance of this waiver of Section 1542.
Section 1542 of the Civil Code of the State of California
states as follows:
"A General release does not extend to claims which the
creditor does not know or suspect to exist in his/her favor at
the time of the executing the release, which if known by
his/her must have materially affected his/her settlement with
the debtor."
Thus, notwithstanding the provisions of Section 1542, and for
the purpose of implementing a full and complete release and
discharge of the Releasees, Employee expressly acknowledges
that this Agreement is intended to include in its effect,
without limitation, all claims that Employee does not know or
suspect to exist in his/her favor at the time of execution,
and the extinguishment of any of these claims.
5. Employee hereby reaffirms his/her obligations under the
Confidentiality Agreement and Acknowledgement of
Confidentiality previously executed by Employee.
6. This Agreement shall be governed by and interpreted according
to the laws of the State of California without regard to its
conflict of laws provisions. Any controversy or claim arising
out of or relating to this Agreement, or the breach thereof,
shall be settled by binding arbitration in San Diego County,
California, administered by the American Arbitration
Association in accordance with its applicable rules. Judgment
on the award rendered by the arbitrator may be entered in any
court having jurisdiction thereof.
7. Should any provision of this Agreement be declared or be
determined by a court to be illegal or invalid, the validity
of the remaining parts, terms, and provisions shall not be
affected thereby and said illegal or invalid part, term, or
provision shall be deemed not to be a part of this Agreement.
8. This Agreement and all of its provisions shall be binding
upon, and inure to the benefit of, any successors, assigns,
personal representatives or heirs of the parties hereto.
9. Employee represents and acknowledges that in executing this
Agreement, he/she does not rely and has not relied upon any
representation or statement not set forth herein made by any
of the Releasees, their agents or representatives. Employee
confirms that he/she has been encouraged to and has had the
opportunity to seek the advice of legal counsel with respect
to executing this Agreement. The parties acknowledge that each
has read this Agreement, that each fully understands their
rights, privileges and duties under this Agreement, and that
each enters into this Agreement voluntarily and without
coercion or duress.
10. [INCLUDE FOR EMPLOYEES AGE 40+] Employee acknowledges he/she
is entitled to twenty-one (21) days' time in which to consider
this Agreement. Employee acknowledges that he/she has obtained
or had the opportunity to obtain the advice and counsel from
the legal representative of his/her choice and that he/she
executes this
2
Agreement having had sufficient time within which to consider
its terms. Employee represents that if he/she executes this
Agreement before twenty-one (21) days have elapsed, he/she
does so voluntarily, upon the advice and with the approval of
his/her legal counsel, and that he/she voluntarily waives any
remaining consideration period.
11. [INCLUDE FOR EMPLOYEES AGE 40+] Employee understands that
after executing this Agreement, he/she has the right to revoke
it within seven (7) days after his/her execution of it.
Employee understands that this Agreement will not become
effective and enforceable unless the seven (7) day revocation
period passes and Employee does not revoke the Agreement in
writing. Employee understands that this Agreement may not be
revoked after the seven (7) day revocation period has passed.
Employee understands that any revocation of this Agreement
must be in writing and delivered to Dura within the seven (7)
day period.
PLEASE READ CAREFULLY. THIS AGREEMENT INCLUDES
A RELEASE OF ALL KNOWN OR UNKNOWN CLAIMS.
Executed as of the date first written above at ___________________.
(City and State)
After signature by Employee, an original of this Separation
Agreement and General Release is to be forwarded to the Human Resources
Development Department.
DURA PHARMACEUTICALS, INC. EMPLOYEE
By:
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Name: (Employee name)
--------------------------------
Title:
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DURA PHARMACEUTICALS, INC.
EXECUTIVE CHANGE OF CONTROL SEVERANCE AGREEMENTS
ENTERED INTO JANUARY 1, 2000
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SECTION 1(b)(i) SECTION 1(b)(ii)
(b) Lump Sum Payment of WELFARE BENEFIT
NAME TITLE Salary and Bonus COVERAGE
------------------------------------ ------------------------- ----------------------------------- -----------------------------
------------------------------------ ------------------------- ----------------------------------- -----------------------------
Cam ▇. ▇▇▇▇▇▇ Chairman and CEO 2.0 times the sum of Base Salary Continuation for 24 months
plus Average Annual Bonus following a Qualified
Termination
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ President 1.5 times the sum of Base Salary Continuation for 18 months
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ President plus Average Annual Bonus following a Qualified
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇. Vice President Termination
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇. Vice President
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇. Vice President
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▇▇▇▇ ▇. ▇▇▇▇ Vice President .75 times the sum of Base Salary Continuation for 9 months
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Vice President plus Average Annual Bonus following a Qualified
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Vice President Termination
▇▇▇▇▇ ▇. ▇▇▇▇▇ Vice President
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Vice President
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Vice President
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Vice President
▇▇▇▇ ▇. ▇▇▇▇ Vice President
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ Vice President
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Vice President
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Vice President
▇▇▇▇▇ ▇. ▇▇▇▇▇ Vice President
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Vice President
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SECTION 1(b)(v)
DEFERRED COMPENSATION PLAN
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Cam ▇. ▇▇▇▇▇▇ Continuation as a non-employee participant
for 24 months following a Qualified
Termination
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Continuation as a non-employee participant
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ for 18 months following a Qualified
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Termination
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇ Continuation as a non-employee participant
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ for 9 months following a Qualified
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Termination
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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