Exhibit 10.69


 


CONFIDENTIAL—VIA HAND DELIVERY


 


 


February 25, 2005


 


 


Patrick
Murphy


c/o
Abgenix, Inc.


6701
Kaiser Drive


Fremont,
CA 94555


 


 


Re:                             Separation Agreement


 


Dear
Pat:


 


This letter will constitute the
agreement between you and Abgenix, Inc. (“Abgenix” or the “Company”) on
the terms of your separation from employment with the Company.  As set forth in paragraph 14 below, this
agreement will become a binding legal agreement, effective on the eighth day
after you have signed it and returned it to me. 
I encourage you to obtain legal advice before signing it if you desire
to do so.


 


1.                                       Transition and Termination Date.  The
term of this agreement is from March 1, 2005 through February 28,
2006.  We have previously discussed the
termination of your employment at Abgenix. 
As discussed, your employment with Abgenix will continue and will
terminate six (6) months from March 1, 2005, i.e., August 31,
2005 (the “Termination Date”), unless by mutual written consent the consulting
period begins sooner, as discussed below, in which case the Termination Date
will be the date that the consulting period actually begins.  From now until the Termination Date, you
agree that you will assist in performing your job functions, facilitating the
transfer of your duties to other employees or consultants and engaging in any
special projects in keeping with your prior role as may be reasonably required
by Abgenix management.  I will be your
primary contact at Abgenix to coordinate communication regarding your
transition services.  You and I will
agree on when you will be required to be present on site for these services,
and we will certainly be flexible in accommodating your efforts in pursuing new
opportunities.  In that regard, I
understand that you will generally be on-site through March 23, with
reduced time on site thereafter.  You may
be required to provide customary reports or other work product appropriate for
the work undertaken.  From the date of
this letter until the Termination Date, your title will be Senior Vice President,
but your signature on this letter will constitute your resignation as a
corporate officer, effective immediately.


 


2.                                       Continued Pay; Consulting Period.  You
will continue to be paid your salary at the rate of $21,250 per month through
the Termination Date, and will also be paid any accrued and unused vacation pay
or personal time off as of that date, less usual withholding and
deductions.  You will not be eligible for
any further salary action during that period. 
Vacation will not accrue after February 28, 2005.  You will not be eligible for a bonus award
under the Company’s bonus plan for the year 2005.  Following the Termination Date, you will be
paid for consulting services to Abgenix for an additional period beginning on
the Termination Date and ending on February 28, 2006 (the “Consulting
Termination Date”), for services to be provided on mutually agreeable dates,
times and places.  We will continue to
pay you at the rate stated above, regardless of the amount of time spent on any
consulting projects for Abgenix.  We will
mutually agree with you in advance on any expected deliverables or work
product, supporting invoices and the like, which are appropriate for the work
undertaken.  We understand that you may
have other full-time employment during that period and will be very flexible in
any requests for your time and efforts.


 


3.                                       Benefits—Health Insurance.  We
will continue to make benefits payments on your behalf until the earlier of (i) the
Consulting Termination Date, or (ii) the date you start receiving health
insurance benefits under another plan, after which date, you may continue to
receive COBRA benefits at your own expense, to the extent you are
eligible.  During that time we will
deduct benefits payments in your current 


 





















 


amounts
and as currently selected by you from the payments we make to you, unless you
instruct us otherwise in writing.  Any
medical, vision and dental plan coverage (herein referred to as health
insurance) you have will end as of the Termination Date, subject to COBRA continuation
rights from that date. Following the date specified in the first sentence of
this paragraph, you will be responsible for the full amount of any COBRA
continuation premiums for any coverage you may elect.  Nothing in this agreement will impair your
COBRA rights in that regard.  Please
notify us promptly, and we will inquire with you periodically, if you obtain
other employment so that we can coordinate benefit coverage termination if you
desire.  You
will receive by separate cover information regarding your rights to health
insurance continuation (COBRA benefits).


 


4.                                       Other benefits.  Any
life, long-term disability and accidental death and dismemberment or other
insurance provided by Abgenix will also end on the Termination Date. You may
generally apply to convert this coverage at your expense to an individual
policy within a certain period as described in the first sentence of this
paragraph, subject to requirements of the individual insurers.  If you are presently contributing a portion
of your salary to the Company flex benefit program, you will be permitted to
continue to do so through the Termination Date, at which time your
participation in that program would end. 
The total account value of your vested interest, if any, in the Abgenix
401(k) plan will be available for withdrawal, but does not have to be withdrawn
immediately, after the Termination Date (subject to the requirements of the
plan).  Executive outplacement services
will be made available to you at our expense, not to exceed $10,000.00, through
the DBM Executive Program upon your request. 
Additional information can be obtained through Kristen Metza Anderson in
Human Resources.


 


5.                                       Stock Options.  As
of the date of this letter you will not receive further grants of stock
options.  Your rights with regard to your
existing Abgenix stock options, including those described in the compensation
changes based on your 2004 performance letter, will be determined under the
applicable option agreement.  Please note
that you have a specified period of time to exercise any vested stock
options.  For purposes of the vesting,
exercise and other provisions of those agreements, your employment is
terminated as of the Consulting Termination Date, and your options will
continue to vest through that date, and not thereafter.  You will have the period stated in the
applicable option agreement, typically ninety (90) days after the Consulting
Termination Date, to exercise vested options. 
Nothing in this letter is intended to or shall extend the actual dates for
vesting beyond the Consulting Termination Date, or extend the date for exercise
of any stock options, except to the extent stated in this paragraph.


 


6.                                       Company
Items.  Upon the
Termination Date, you will return to the Company any building keys, security
pass, or other access or identification cards (including any business cards)
and any Company property that is currently in your possession, including any
documents, credit cards, computer equipment and mobile phones. By no later than
the Termination Date, you will also clear all expense accounts and pay all
personal expense amounts, if any, owed on any corporate credit card(s) which
the Company previously issued to you. For purposes of making payments to you under Paragraph 7 below, and so
that we may communicate with you if needed, please provide us with notice if
your personal residence changes.


 


7.                                       Waiver
and Release.  In consideration of
your services under this separation agreement, and the release provided below,
Abgenix will provide you with the continued salary, consulting and COBRA
payments and other benefits contained in this letter.  Each of these benefits is contingent on your
compliance with this agreement.   Therefore,
on behalf of yourself and your representatives, agents, heirs and assigns, you
waive, release, discharge and promise never to assert any and all claims,
liabilities or obligations of every kind and nature, whether known or unknown,
suspected or unsuspected that you ever had, now have or might have as of the
date you sign this agreement, against the Company and its predecessors,
subsidiaries, related entities, and their officers, directors, shareholders,
agents, attorneys, employees, successors, assigns, representatives and heirs.


 


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The released claims include, without
limitation, any claims arising from or related to your employment with the
Company, the separation of your employment with the Company, and/or the
execution of this agreement. The claims also specifically include, without
limitation, any claims arising under any federal, state and local statutory or
common law, such as Title VII of the Civil Rights Act, the Age Discrimination
in Employment Act, the Older Workers’ Benefit Protection Act, the California
Fair Employment and Housing Act, the Americans With Disabilities Act, the
Employee Retirement Income Security Act, the Fair Labor Standards Act, the
California Labor Code (all as amended), the law of contract and tort, and any
claim for attorneys’ fees.


 


You also waive and release and
promise never to assert any such claims, even if you do not know or believe
that you have such claims. You therefore waive your rights under section 1542
of the California Civil Code, which states:


 


A general release does not extend to claims that the creditor does not 

know or suspect to exist in his favor at the time of executing the 

release, which if known to him must have materially affected his 

settlement with the debtor.


 


In short, you agree that you will
not bring any lawsuits or claims of any kind against any of the released
parties identified above and will not accept the benefits of any lawsuits or
claims of any kind brought on your behalf against them.


 


To my knowledge, there are no known
claims by the Company against you, and we have no present intention of pursuing
any claims.


 


8.                                       Non-disparagement.  You agree to refrain from making any
derogatory or disparaging statements to any person or third parties about the
Company or any of its officers, directors, products or services.  The Company agrees to direct each of the
current members of its Board of Directors, its current named executive
officers, and its human resources and legal departments, to refrain from making
any derogatory or disparaging statements to any person or third parties about
you, and the Company takes responsibility for their compliance with this
non-disparagement promise.


 


9.                                       Confidentiality;
non-solicitation.  Unless required by
court order or law, you will not disclose to anyone any information regarding
the terms of this agreement, the benefits being paid to you under it or the
fact that a payment was made to you, except that you may disclose this
information to your spouse, attorney, accountant or other professional advisor
to whom you must make the disclosure in order for them to render professional
services to you.  You may also disclose
this information to the State of California’s Employment Development
Department, Workers’ Compensation Appeals Board, and Fair Employment and
Housing Commission or Department of Fair Employment and Housing, and/or to the
United States Equal Employment Opportunity Commission.  In such circumstances, however, you will
instruct them to maintain the confidentiality of this information just as you
must.  You may also disclose the existence
of the employment and/or consulting arrangement to any prospective employer or
client. Abgenix will not disclose any information regarding terms of this
agreement to anyone other than required by law (or to obtain professional
advice on this agreement).  Further, you
will not disclose to anyone any confidential or proprietary information
regarding the Company’s practices, procedures, trade secrets, customer lists or
marketing strategies, without prior written permission from the CEO of the
Company or unless required by court order. 
You acknowledge the highly confidential nature of confidential or
proprietary information regarding the Company’s customers, affiliates and
employees. You agree that, for a period of one year following the Effective Date,
you will not solicit for employment, divert or take away, or attempt to solicit
for employment, divert or take away, any employees of the Company with whom you
became acquainted as a result of your employment with the Company.


 


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10.                                 Change
of Control and Company’s Successors.  In the event of a Change of Control of the
Company or the coming into existence of a Successor to the Company’s business,
the Company agrees that all terms of this agreement shall remain in full force
and effect and shall continue to bind the Company as well as binding any entity
existing after a Change of Control and/or any Successor entity, which entities
shall be required by the Company to execute and deliver an assumption agreement
agreeing to assume the obligations in this agreement to the extent that the
successor does not become bound by operation of law; notwithstanding any such
assumption agreement by any entity existing after a Change of Control or any
Successor entity, the obligations under this agreement shall remain the Company’s
obligations and the Company guarantees compliance with those obligations in the
event of any failure to comply by any entity existing after a Change of Control
or any Successor entity.  For purposes of
this agreement, the terms “Change of Control”, “Successor” and “assumption
agreement” shall be defined as defined or described in paragraphs 1(b) and
6(a) of the Abgenix, Inc. Change of Control Severance Agreement
entered into as of May 15, 2000 between Patrick M. Murphy and Abgenix.


 


11.                                 Employment
Verification: Upon receiving a request for employment verification or a
reference check, in addition to typical information provided by the Company
(dates of employment, position/title held, confirmation of compensation), the
information in Attachment A will be offered by the Company to the inquiring
party. All such requests or reference checks will be directed to Kristen Metza
Anderson, Senior Vice President of Human Resources.


 


12.                                 Remedies.  In the event that you or the Company breach
any of your or its obligations under this agreement or as otherwise imposed by
law and you or the Company are/is adjudged by an arbitrator or court of
competent jurisdiction to have so breached, the Company (in the event of your
adjudged breach) will be entitled to discontinue your separation pay and you
(in the event of the Company’s adjudged breach) will be entitled to cease
complying with your obligations under this agreement, and the Parties may each
obtain injunctive relief and all other relief provided by law or equity.  Any dispute over a breach of this agreement
will not affect the validity and enforceability of your releases and waivers
contained herein.


 


13.                                 Choice
of law.  This agreement will
in all respects be interpreted and governed under the laws of the State of
California.


 


14.                                 Revocation
Right.  Pursuant to the Older Workers Benefit Protection Act,
you acknowledge that you have up to 21 days from the date of this letter to
consider and accept the terms of this agreement (although you may accept it at
any time within those 21 days) and that you were advised to consult with an
attorney about this agreement before signing it. To accept the agreement,
please date and sign this letter and return it to me.  Once you do so, you will have an additional
seven days in which to revoke your acceptance. 
To revoke, you must send me a written statement of revocation by a
signed notice by fax or overnight courier, in either case received within that
seven-day period. If you do not timely revoke, the eighth day after the date of
your signature will be the “Effective Date” of this agreement.


 


15.                                 Integration.  Except as set forth in this agreement, there
are no representations, promises or understandings between you and the Company
about or pertaining to the termination of your employment with the Company, or
the Company’s obligations to you with respect to your employment or any other
matter mentioned above.  This agreement
therefore supersedes any prior written or oral representations, promises,
agreements and understandings regarding any of the matters discussed above,
except for any agreements that expressly have continuing effect following the
Termination Date as set forth in this agreement 
(including your Employment, Confidential Information and Inventions
Agreement with the Company, a copy of which will be provided on your request,
the Indemnification Agreement dated May 15, 2000, and any stock option
agreements between the Company and you). 
This agreement, once effective, cannot be amended or modified by you without the prior written consent of the
undersigned or 


 


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Abgenix’s
General Counsel, which consent must refer specifically to this paragraph of
this agreement.


 


16.                                 Disputes.  We agree that any future
disputes between you and the Abgenix Parties, including but not limited to,
disputes arising out of or related to this agreement, shall be identified in
writing by the complaining party to the other party, and if not resolved after
good faith discussion between us, shall be resolved exclusively by binding
arbitration to be conducted in San Francisco, California before the American
Arbitration Association under the California Employment Dispute Resolution
Rules.  The arbitrator(s) shall not have
the authority to modify, change or refuse to enforce the terms of this
agreement.   The Company shall pay all
arbitrator fees relating to any such arbitration.  However, each party shall pay its own costs,
including reasonable attorneys’ fees and costs, of any such arbitration,
regardless of the outcome.


 


17.                                 Interpretation.  Section headings
are included for convenience only, and shall not be used in the interpretation
of this agreement.  If any part of this
agreement is held to be invalid, void or unenforceable, then the rest of the
agreement shall remain in full force and effect, and the parties shall use
their best efforts to reach a mutually acceptable alternative to achieve the
nearest possible result.


 


18.                                 Expiration.  This letter will remain open
for the twenty-one day period stated above, i.e., through March 18, 2005,
unless revoked by Abgenix in writing ahead of that time.  Your return of a signed original to me (or
fax to my attention received at 510-608-6547, followed by original hard copy by
overnight courier for next day delivery) no later than 5:00 p.m. on that
date will constitute acceptance of this agreement.  If we have not received your signed
acceptance by that time, this offer of an agreement will expire without further
notice or action.


 


The Company and I
appreciate your cooperation during this transition, Pat, and wish you every
success in your future endeavors.


 


Sincerely,


 


	
  /s/ William R. Ringo

  	
   

  	
   

  
	
  William R. Ringo

  	
   

  
	
  President and CEO

  	
   

  



 


 


My signature below signifies
my agreement with the above terms. 
Further, I acknowledge that I have read and understand this agreement
and that I sign this release of all claims voluntarily, with full understanding
that at no time in the future may I pursue any of the rights I have waived in
this agreement.


 


 


	
  /s/ Patrick M. Murphy

  	
   

  	
   

  	
  March 18, 2005

  	
   

  
	
  Patrick M. Murphy

  	
   

  	
  Date

  



 


c/o
Abgenix, Inc.


6701
Kaiser Drive


Fremont,
CA 94555


 


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