**Exhibit 10.90**

 

**Abgenix, Inc.**

**RESIGNATION AND TRANSITIONAGREEMENT**

 

This Resignationand Transition Agreement (this “Agreement”) is entered into betweenAbgenix, Inc. (the “Company”) and Raymond M. Withy (“Employee”).The purpose of this Agreement is to arrange for Employee’s resignation as theChief Executive Officer and President of the Company as well as for atransition of Employee’s employment with Company on a basis that issatisfactory both to Company and to Employee (collectively, the “Parties”).  In consideration of the promises andobligations set forth herein, the Company agrees to provide certain additionalbenefits to Employee in full satisfaction of its obligations under theemployment relationship between the Parties and Employee agrees to release theCompany from any claims or obligations as set forth herein.

 

1.                                       **Resignation**.  Employee irrevocably resigns from hispositions as Chief Executive Officer and President of the Company effective asof August 30, 2004.

 

2.                                       **Continued Employment for Transition Period**.  After August 30, 2004, Employee shallcontinue providing services as a full-time employee of the Company throughDecember 31, 2004 (“Transition Period”). Employee shall report to the individual who is then serving as theCompany’s Chief Executive Officer, who shall determine Employee’s duties andresponsibilities.

 

Provided that Employee (1) executes thisAgreement and the Exhibits attached hereto, including the release of claimsattached hereto as Exhibit A, (2) does not revoke such release ofclaims, and (3) uses his best efforts to perform the services requested of himduring the Transition Period, Employee shall continue to receive the same basesalary, cash incentive bonus opportunity, benefits, and perquisites as he wasreceiving immediately prior to the effectiveness of his resignation underSection 1 above.  For avoidance of doubt,the Parties agree that the terms of Employee’s annual cash incentive bonus for2004, including but not limited to the performance objectives and target bonusamount, shall remain unchanged.  Thestock options previously granted to Employee by the Company shall continue tovest during the Transition Period, but not thereafter.  Employee agrees to execute the form ofamendments to Employee’s stock option agreements attached hereto as ExhibitB at the same time that he executes this Agreement.

 

Employee understands and agrees that thecompensation and benefits described in this Section 2 are greater than theamounts that the Company would otherwise expect to pay in order to obtainEmployee’s services during the Transition Period, and furthermore agrees thatsuch additional compensation and benefits provide consideration for Employee’sobligations hereunder, including but not limited to execution by Employee of anyrelease of claims described herein and execution of the amendments to Employee’sstock option agreements.

 

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3.                                       **Transition Information**.

#  

# (a)                                  **Separation Date**.  Employee’s employment with the Company andits affiliates will terminate effective as of December 31, 2004 (the “SeparationDate”).  Employee understands andagrees that this termination is effective with respect to all positions he thenholds with the Company and any of its affiliates, except as a member of theBoard of Directors of the Company (“Board”). If requested by the Company in its sole discretion, Employee agrees toexecute a release of claims substantially in the form attached hereto as ExhibitA in order to release any claims arising out of Employee’s service with theCompany through the Separation Date.

 

# Commencing onJanuary 1, 2005, Employee shall be compensated for his services on the Board inaccordance with the Company’s policies for individuals who continue to serve onthe Board after having ceased employment with the Company.  For avoidance of doubt, for service on theBoard in 2005, Employee shall be entitled to payment of a pro-rated annualretainer fee, standard meeting fees, and reimbursement for expenses incurred toattend meetings of the Board or a committee of the Board or to otherwise carryout his responsibilities as a member of the Board.  The Board and Employee agree that Employeewill continue to serve as a member of the Board until at least the expirationof his current term.

 

# (b)                                 **Accrued Benefits**.  On or before the Separation Date, the Companywill have paid Employee all wages due to him, including regular base salarythrough his Separation Date and payment for all accrued and unused vacationcredited to him as of the Separation Date. In addition, the Company will reimburse Employee in a timely fashion forall approved business expenses incurred by Employee prior to the SeparationDate in accordance with normal Company policy.

 

4.                                       **Continuation of Benefits**.

 

(a)                                  **Group Health Insurance**.  Employee’scurrent coverage under the Company’s standard group health insurance programswill terminate on December 31, 2004. Employee may then have the opportunity to elect continuation coverageunder the Company’s group health insurance programs as permitted pursuant tothe Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”).  Employee will be provided with informationregarding, and an opportunity to elect, such coverage following the SeparationDate.

 

(b)                                 **Other Benefits**.  Employeeacknowledges and agrees that Employee will have no right, title, interest, orclaim in or to participation in, or any benefits provided under, any of theCompany’s employee benefit programs or policies following the Separation Date.

 

5.                                       **Equity Benefits**.  Exhibit B to this Agreement sets forthEmployee’s rights to purchase shares of the Company’s capital stock as of theSeparation Date (assuming that Employee continues to be employed by the Companythrough the Separation Date), reflecting

 

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the amendments toEmployee’s stock option agreements included as part of Exhibit B.  Employee acknowledges and agrees that exceptas set forth on Exhibit B and in those stock option agreements asamended that govern Employee’s rights to the 

shares described on ExhibitB, Employee has no other right, title, interest, or claim in or to anyshares of the Company’s capital stock, other than any shares he might own thatare unencumbered by any contractual restrictions in favor of the Company.

 

6.                                       **No Other Payments Due**.  Employee acknowledges and agrees that, uponpayment of those amounts set forth in this Agreement, he will have received allsalary, accrued vacation, bonuses, wages, compensation or other such sums dueto him as of the Separation Date other than amounts, if any, to be paid afterthe Separation Date pursuant to this Agreement.

 

7.                                       **Covenants**.

 

(a)                                  **Confidential and Proprietary Information. **Employee represents and warrants that atall times prior to the date on which he executes this Agreement he has been infull compliance with his obligation to maintain the confidentiality of allconfidential and proprietary information of the Company.  Employee understands and agrees that theprovisions of the Company’s standard form of proprietary information andinventions agreement shall continue in full force and effect following hisSeparation Date, such that the Company shall continue to hold all remediesavailable to it, whether at law or in equity, in order to enforce Employee’scompliance with such agreement.

 

(b)                                 **Return of Company Property**.  As a condition of the Company entering intothis Agreement, Employee is required to return all of the Company’s property,including but not limited to any confidential or proprietary information, inhis possession, on or before the Separation Date, except for any property thatthe Company expressly agrees Employee may retain or any property that has beenmade available to members of the Board in order to allow them to perform theirduties in that capacity.

 

(c)                                  **Non-Disparagement**.  Employee agrees to refrain from making anyderogatory, disparaging and/or detrimental statements to any other person orthird parties about the Company or any of the Released Parties, including butnot limited to the Company’s directors, officers, investors, employees,products, or services.  The Companyagrees to direct each of the current members of its Board of Directors (otherthan Employee) and its current named executive officers to refrain from makingany derogatory, disparaging and/or detrimental statements to any other personor third parties about Employee.

 

8.                                       **Taxes**. Any payments or benefits provided pursuant to this Agreement will besubject to applicable tax withholdings. Employee expressly permits the Company to deduct from any amounts duehereunder such amounts as necessary to satisfy any withholding or employmenttax obligations arising in connection with the termination of his employment,including, but not limited to, the cancellation of any debt, the payment of anyamount or the provision of any benefit hereunder.

 

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9.                                       **Entire Agreement**.  This Agreement (including the Exhibitshereto) sets forth the entire agreement between the Company and Employee, andsupersedes any prior agreements or understanding, whether oral or written,concerning the subject matter set forth herein. This Agreement may not be altered or amended except by a writtendocument signed by the Parties.  Employeeexpressly agrees that, except as set forth herein, the terms of this Agreementsupersede the terms of any individual agreement or understanding with theCompany relating to Employee’s rights as an employee of the Company, includingbut not limited to that certain Amended and Restated Change of ControlSeverance Agreement between the Parties dated as of April 24, 2003.  Employee acknowledges that he is executingthis Agreement voluntarily and knowingly and that he has not relied upon anyrepresentation or statement made by the Company, the Released Parties (as thatterm is defined in Exhibit A) or their respective agents with respect tothe subject matter, basis or effect of this Agreement, other than thosespecifically stated in this written Agreement.

 

10.                                 **Severability**.  If any one or more of the provisions of thisAgreement, including, without limitation, Employee’s obligations described inSection 7 herein, shall be or become invalid, illegal or unenforceable in anyrespect or to any degree, the validity, legality and enforceability of theremaining provisions of this Agreement shall not be affected thereby and saidillegal, unenforceable or invalid provisions shall be deemed not to be a partof this Agreement.

 

11.                                 **Governing Law**.  This Agreement shall be governed by the lawsof the State of California, without regard to its conflicts of law provisions.

 

12.                                 **Counterparts**.  This Amendment may be executed incounterparts, each of which shall be deemed to be an original and togethershall be deemed to be one and the same document.

 

13.                                 **Voluntary Execution**.  Employee hereby understands and agrees that:

 

(a)                                  He has been given twenty-one(21) days from the date that this Agreement was delivered to him (i.e., untilSeptember 16, 2004) in which to accept its terms, although he may accept it atany time within those twenty-one (21) days;

 

(b)                                 He has carefully read andfully understands all of the terms of the Agreement;

 

(c)                                  He is, through thisAgreement, releasing the Released Parties from any and all claims he may haveagainst them;

 

(d)                                 He was advised and is herebyadvised in writing to consult with an attorney of his choice prior to executingthis Agreement;

 

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(e)                                  He has so consulted with anattorney of his choice or knowingly declined to do so;

 

(f)                                    He knowingly and voluntarilyagrees to all of the terms set forth in this Agreement with full appreciationthat he is forever foreclosed from pursuing any of the rights waived herein;

 

(g)                                 He has a period of 7 daysafter signing this Agreement within which to revoke his consent to thisAgreement and that neither the Company nor any other person is obligated toprovide any payment or benefit to him until 8 days have passed since hissigning of this Agreement without his signature having been revoked in awriting received by the Company within the seven day revocation period; and

 

(h)                                 He is under no disability orimpairment that affects his decision to sign this Agreement and knowingly andvoluntarily intends to be legally bound by this Agreement.

 

 

IN WITNESS WHEREOF, theParties hereto have duly executed this Agreement.

 

 
|   | **Abgenix, Inc.:**           |
|--------|------------------------------|
|   |                         |
|   |                         |
|   | By:                          |   /s/ R. Scott Greer |
|   | Name: R. Scott Greer         |
|   | Title:    Chairman |
|   |                         |
|   |                         |
|   | **EMPLOYEE:**                |
|   |                         |
|   | /s/ Raymond M. Withy         |
|   | Raymond M. Withy             |
|   |                         |
|   | August 26, 2004              |
|   | Date                         |

 

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EXHIBIT A

 

**Employee’sRelease of All Claims**

 

In consideration of the benefits to be provided to Employee by theCompany as set forth in this Agreement to which this Release of All Claims isan Exhibit, Employee, on behalf of himself, his spouse, domestic partner,agents, attorneys, successors, assigns, heirs and executors hereby fully andforever releases and discharges Abgenix, Inc., and its current and formerofficers, directors, shareholders, partners, members, investors,administrators, employees, contractors, agents, attorneys, insurers,affiliates, successors, predecessors, subsidiaries, assigns and fiduciaries intheir individual and/or representative capacities (collectively, the “ReleasedParties”) from any and all claims, suits, agreements, promises, damages,disputes, controversies, contentions, differences, judgments, debts, dues, sumsof money, accounts, reckonings, bonds, causes of action, bills, covenants,contracts, variances, trespasses, extents, executions and demands of any kindwhatsoever, which Employee or his spouse, domestic partner, agents, attorneys,successors, assigns, heirs and executors ever had, now have or may have againstthe Released Parties or any of them, in law, admiralty or equity, for, upon, orby reason of, any matter, action, omission, course or thing whatsoeveroccurring up to the date this Agreement is signed by Employee, including,without limitation, in connection with or in relationship to Employee’semployment or other service relationship with the Company or its affiliates,Employee’s resignation as the Chief Executive Officer and President of theCompany, the termination of any such employment or service relationship and anyapplicable employment, compensatory or equity arrangement with the Company orits respective affiliates; provided that such released claims shall notinclude (1) any claims to enforce Employee’s rights under, or with respect to,this Agreement, (2) Employee’s rights to employee benefits under the terms ofthe Company’s employee benefit plans, programs and arrangements, and (3) anyrights to indemnification from the Company that Employee may possess relatingto his service with the Company, whether under the Company’s Articles ofIncorporation, By-laws, the Indemnification Agreement executed by Company andEmployee or otherwise (such released claims are collectively referred to hereinas the “Released Claims”).  Employee understands and agrees that the release set forth in thisExhibit A to this Agreement is a full and complete waiver of all claims,whether known or unknown by him, including, but not limited to, any claims withrespect to his entitlement to any wages, bonuses, severance benefits or otherforms of compensation; any claims with respect to his purchase of, or right topurchase, any capital stock of the Company; any claims of wrongful discharge,breach of contract, breach of the covenant of good faith and fair dealing,violation of public policy, defamation, personal injury, emotional distress;any claims under Title VII of the Civil Rights Act of 1964, as amended, theFair Labor Standards Act, the California Fair Employment and Housing Act, theEqual Pay Act of 1963, the Americans With Disabilities Act, California LaborCode Section 1197.5, the Civil Rights Act of 1991, the Employee RetirementIncome Security Act of 1974, as amended (“ERISA”) as related toseverance benefits, any family and medical leave acts; and any claims under anyother federal, state, and local laws and regulations relating to employment oremployment discrimination. Employee agrees that the benefits provided to himpursuant to this Agreement are in full satisfaction and settlement of any suchReleased Claims.  Employee represents andwarrants that he has not filed, and he will not file, any lawsuit or instituteany proceeding, charge, complaint or action

 

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asserting any suchclaim before any federal, state, or local administrative agency or courtagainst any Released Party, concerning any event occurring prior to the signingof the Agreement.  Nothing in theAgreement, however, shall be construed as prohibiting Employee from filing acharge or complaint with the Equal Employment Opportunity Commission (“EEOC”)or participating in an investigation or proceeding conducted by the EEOC.  Employee also hereby agrees that nothingcontained in this Release shall constitute or be treated as an admission ofliability or wrongdoing by any of the Released Parties.

 

**ADEA**.  Employee represents that he is knowingly andvoluntarily waiving any and all rights that he currently may have arising underthe Age Discrimination in Employment Act of 1967, as amended.  Employee understands that he has the right toconsult with an attorney before signing this Agreement.  Employee also understands that he may havetwenty-one (21) days after his receipt of this Agreement within which he mayreview and consider, discuss with an attorney of his own choosing, and decideto execute or not execute it.  Employeefurther understands that for a period of seven (7) days after he signs thisAgreement, he may revoke his release of all claims.   In order to revoke his release, Employeemust deliver to the President and Chief Executive Officer of the Company, by nolater than seven (7) days after he executes this Agreement, a letter statingthat he is revoking it.  Employeeunderstands and agrees that if he revokes his release, he will have no right toreceive, and the Company will have no obligation to provide, any of the benefitsdescribed in this Agreement.  If Employeedoes not deliver such a letter, then this Agreement shall become effective uponthe expiration of the seventh day after he executes this Agreement.  If Employee executes this Agreement prior tothe twenty-first (21) day after its delivery to him, Employee herebyacknowledges that his decision to execute this Agreement prior to theexpiration of such twenty-one (21) day period was entirely voluntary.

 

**CivilCode Section 1542**. Employee hereby expressly waives any and all rights and benefitsconferred upon him by the provisions of Section 1542 of the Civil Code of theState of California (as well as under any other statute or common lawprinciples of similar effect), which states as follows:

 

**“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THATTHE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OFEXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HISSETTLEMENT WITH THE DEBTOR.”**

 

Employee hereby executes this Release of All Claims on this 30thday of August 2004.

 

 
| /s/ Raymond M. Withy |   |
|----------------------|--------|
|                 |
| Raymond  M. Withy    |

 

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Exhibit B:

 

Stock Option Amendments and Stock Option Summary

 

 

[in the forms attached]

 

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**AGREEMENT AMENDING OPTIONS**

 

This Agreement Amending Options****(the “Agreement”)****is entered into as of August 26, 2004 (the “Effective Date”),by and between Abgenix, Inc., a Delaware corporation (the “Company”), andRaymond M. Withy, Ph.D. (the “Employee”) (collectively, the “Parties”).

 

WHEREAS,the Company previously has granted stock options to Employee under 1996Incentive Stock Plan (the “Plan”) for the purpose of providing equitycompensation to Employee and aligning his interests with those of thestockholders of the Company.

 

WHEREAS, the Parties desire to amend theoptions listed in Attachment A hereto (the “Options”) to provide that theOptions shall continue to vest until December 31, 2004, but not thereafter.

 

NOW, THEREFORE, in consideration of the promises andmutual covenants herein and for other good and valuable consideration, thereceipt and sufficiency of which are hereby acknowledged, the Parties agree asfollows:

 

1.                                                                                       Allterms with initial capitals that are used herein and that are not specificallydefined herein shall have the defined meanings set forth in the optionagreements for each Option.

 

2.                                                                                       Amendmentto Options.  Section 2(a) of theoption agreement for each of the Options is amended and restated in its entiretyas follows:

 

“(a)                            Rightof Exercise.  This Option may beexercised during its term in accordance with the Vesting Schedule set out inthe Notice of Grant and the applicable provisions of the Plan and this OptionAgreement; *provided, however*,that after December 31, 2004,  (i) noadditional shares subject to the Option shall become exercisable if such sharesare not exercisable on December 31, 2004, and (ii) this Option may not beexercised with regard to any shares that are not exercisable on December 31,2004.”

 

3.                                                                                       ContinuingEffect.  This Amendment shall beeffective for all purposes as of the Effective Date.  Except as otherwise expressly modified bythis Amendment, the Agreement shall remain in full force and effect inaccordance with its terms.

 

4.                                                                                       GoverningLaw.  This Amendment shall begoverned by, interpreted and construed in accordance with the laws of the Stateof California, without regard to conflicts of laws principles.

 

5.                                                                                       Counterparts.  This Amendment may be executed incounterparts, each of which shall be deemed to be an original and togethershall be deemed to be one and the same document.

 

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IN WITNESS WHEREOF, the parties have executed and delivered thisAgreement as of the date first above written.

 
| **COMPANY:**       |           | **EMPLOYEE:**        |     |
|--------------------|----------------|----------------------|----------|
| ** **         |           | ** **           |     |
| /s/ R. Scott Greer |           | /s/ Raymond M. Withy |     |
| *[Name].*          | * *       | *[Name]*             | * * |
| By:                | R. Scott Greer |                 | By:      | Raymond M. Withy |   |
| Title:             | Chairman       |                 |     |   |
|                    |                |                      |          |  |  |  |

 

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**AttachmentA**

 

The Options subject to this agreement to amend options are:

 
| 1.  | Incentive Stock Options to buy 2,089 shares granted  1/8/2001

        |
|-----|-----------------------------------------------------------------------------|
| 2.  | Non-Qualified Stock Options to buy 97,911 shares  granted 1/8/2001

   |
| 3.  | Incentive Stock Options to buy 2,607 shares granted  2/11/2002

       |
| 4.  | Non-Qualified Stock Options to buy 67,393 shares  granted 2/11/2001

  |
| 5.  | Incentive Stock Options to buy 5,172 shares granted  5/6/2002

        |
| 6.  | Non-Qualified Stock Options to buy 164,828 shares  granted 5/6/2002

  |
| 7.  | Incentive Stock Options to buy 2,919 shares granted  4/2/2003

        |
| 8.  | Non-Qualified Stock Options to buy 137,081 shares  granted 4/2/2003

  |
| 9.  | Incentive Stock Options to buy 6,401 shares granted  1/14/2004

       |
| 10. | Non-Qualified Stock Options to buy 68,599 shares  granted 1/14/2004         |

 

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