Exhibit 10.90


 


Abgenix, Inc.


RESIGNATION AND TRANSITION
AGREEMENT


 


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


 


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


 


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


 


Provided that Employee (1) executes this
Agreement and the Exhibits attached hereto, including the release of claims
attached hereto as Exhibit A, (2) does not revoke such release of
claims, and (3) uses his best efforts to perform the services requested of him
during the Transition Period, Employee shall continue to receive the same base
salary, cash incentive bonus opportunity, benefits, and perquisites as he was
receiving immediately prior to the effectiveness of his resignation under
Section 1 above.  For avoidance of doubt,
the Parties agree that the terms of Employee’s annual cash incentive bonus for
2004, including but not limited to the performance objectives and target bonus
amount, shall remain unchanged.  The
stock options previously granted to Employee by the Company shall continue to
vest during the Transition Period, but not thereafter.  Employee agrees to execute the form of
amendments to Employee’s stock option agreements attached hereto as Exhibit
B at the same time that he executes this Agreement.


 


Employee understands and agrees that the
compensation and benefits described in this Section 2 are greater than the
amounts that the Company would otherwise expect to pay in order to obtain
Employee’s services during the Transition Period, and furthermore agrees that
such additional compensation and benefits provide consideration for Employee’s
obligations hereunder, including but not limited to execution by Employee of any
release of claims described herein and execution of the amendments to Employee’s
stock option agreements.


 





















 


3.                                       Transition Information.


 


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


 


Commencing on
January 1, 2005, Employee shall be compensated for his services on the Board in
accordance with the Company’s policies for individuals who continue to serve on
the Board after having ceased employment with the Company.  For avoidance of doubt, for service on the
Board in 2005, Employee shall be entitled to payment of a pro-rated annual
retainer fee, standard meeting fees, and reimbursement for expenses incurred to
attend meetings of the Board or a committee of the Board or to otherwise carry
out his responsibilities as a member of the Board.  The Board and Employee agree that Employee
will continue to serve as a member of the Board until at least the expiration
of his current term.


 


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


 


4.                                       Continuation of Benefits.


 


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


 


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


 


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


 


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


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


 


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


 


7.                                       Covenants.


 


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


 


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


 


(c)                                  Non-Disparagement.  Employee agrees to refrain from making any
derogatory, disparaging and/or detrimental statements to any other person or
third parties about the Company or any of the Released Parties, including but
not limited to the Company’s directors, officers, investors, employees,
products, or services.  The Company
agrees to direct each of the current members of its Board of Directors (other
than Employee) and its current named executive officers to refrain from making
any derogatory, disparaging and/or detrimental statements to any other person
or third parties about Employee.


 


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


 


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9.                                       Entire Agreement.  This Agreement (including the Exhibits
hereto) sets forth the entire agreement between the Company and Employee, and
supersedes 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 written
document signed by the Parties.  Employee
expressly agrees that, except as set forth herein, the terms of this Agreement
supersede the terms of any individual agreement or understanding with the
Company relating to Employee’s rights as an employee of the Company, including
but not limited to that certain Amended and Restated Change of Control
Severance Agreement between the Parties dated as of April 24, 2003.  Employee acknowledges that he is executing
this Agreement voluntarily and knowingly and that he has not relied upon any
representation or statement made by the Company, the Released Parties (as that
term is defined in Exhibit A) or their respective agents with respect to
the subject matter, basis or effect of this Agreement, other than those
specifically stated in this written Agreement.


 


10.                                 Severability.  If any one or more of the provisions of this
Agreement, including, without limitation, Employee’s obligations described in
Section 7 herein, shall be or become invalid, illegal or unenforceable in any
respect or to any degree, the validity, legality and enforceability of the
remaining provisions of this Agreement shall not be affected thereby and said
illegal, unenforceable or invalid provisions shall be deemed not to be a part
of this Agreement.


 


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


 


12.                                 Counterparts.  This Amendment may be executed in
counterparts, each of which shall be deemed to be an original and together
shall 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., until
September 16, 2004) in which to accept its terms, although he may accept it at
any time within those twenty-one (21) days;


 


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


 


(c)                                  He is, through this
Agreement, releasing the Released Parties from any and all claims he may have
against them;


 


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


 


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


 


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


 


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


 


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


 


 


IN WITNESS WHEREOF, the
Parties 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’s
Release of All Claims


 


In consideration of the benefits to be provided to Employee by the
Company as set forth in this Agreement to which this Release of All Claims is
an Exhibit, Employee, on behalf of himself, his spouse, domestic partner,
agents, attorneys, successors, assigns, heirs and executors hereby fully and
forever releases and discharges Abgenix, Inc., and its current and former
officers, directors, shareholders, partners, members, investors,
administrators, employees, contractors, agents, attorneys, insurers,
affiliates, successors, predecessors, subsidiaries, assigns and fiduciaries in
their individual and/or representative capacities (collectively, the “Released
Parties”) from any and all claims, suits, agreements, promises, damages,
disputes, controversies, contentions, differences, judgments, debts, dues, sums
of money, accounts, reckonings, bonds, causes of action, bills, covenants,
contracts, variances, trespasses, extents, executions and demands of any kind
whatsoever, which Employee or his spouse, domestic partner, agents, attorneys,
successors, assigns, heirs and executors ever had, now have or may have against
the Released Parties or any of them, in law, admiralty or equity, for, upon, or
by reason of, any matter, action, omission, course or thing whatsoever
occurring up to the date this Agreement is signed by Employee, including,
without limitation, in connection with or in relationship to Employee’s
employment or other service relationship with the Company or its affiliates,
Employee’s resignation as the Chief Executive Officer and President of the
Company, the termination of any such employment or service relationship and any
applicable employment, compensatory or equity arrangement with the Company or
its respective affiliates; provided that such released claims shall not
include (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 of
the Company’s employee benefit plans, programs and arrangements, and (3) any
rights to indemnification from the Company that Employee may possess relating
to his service with the Company, whether under the Company’s Articles of
Incorporation, By-laws, the Indemnification Agreement executed by Company and
Employee or otherwise (such released claims are collectively referred to herein
as the “Released Claims”).  
Employee understands and agrees that the release set forth in this
Exhibit 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 with
respect to his entitlement to any wages, bonuses, severance benefits or other
forms of compensation; any claims with respect to his purchase of, or right to
purchase, 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, the
Fair Labor Standards Act, the California Fair Employment and Housing Act, the
Equal Pay Act of 1963, the Americans With Disabilities Act, California Labor
Code Section 1197.5, the Civil Rights Act of 1991, the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”) as related to
severance benefits, any family and medical leave acts; and any claims under any
other federal, state, and local laws and regulations relating to employment or
employment discrimination. Employee agrees that the benefits provided to him
pursuant to this Agreement are in full satisfaction and settlement of any such
Released Claims.  Employee represents and
warrants that he has not filed, and he will not file, any lawsuit or institute
any proceeding, charge, complaint or action


 


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asserting any such
claim before any federal, state, or local administrative agency or court
against any Released Party, concerning any event occurring prior to the signing
of the Agreement.  Nothing in the
Agreement, however, shall be construed as prohibiting Employee from filing a
charge 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 nothing
contained in this Release shall constitute or be treated as an admission of
liability or wrongdoing by any of the Released Parties.


 


ADEA.  Employee represents that he is knowingly and
voluntarily waiving any and all rights that he currently may have arising under
the Age Discrimination in Employment Act of 1967, as amended.  Employee understands that he has the right to
consult with an attorney before signing this Agreement.  Employee also understands that he may have
twenty-one (21) days after his receipt of this Agreement within which he may
review and consider, discuss with an attorney of his own choosing, and decide
to execute or not execute it.  Employee
further understands that for a period of seven (7) days after he signs this
Agreement, he may revoke his release of all claims.   In order to revoke his release, Employee
must deliver to the President and Chief Executive Officer of the Company, by no
later than seven (7) days after he executes this Agreement, a letter stating
that he is revoking it.  Employee
understands and agrees that if he revokes his release, he will have no right to
receive, and the Company will have no obligation to provide, any of the benefits
described in this Agreement.  If Employee
does not deliver such a letter, then this Agreement shall become effective upon
the expiration of the seventh day after he executes this Agreement.  If Employee executes this Agreement prior to
the twenty-first (21) day after its delivery to him, Employee hereby
acknowledges that his decision to execute this Agreement prior to the
expiration of such twenty-one (21) day period was entirely voluntary.


 


Civil
Code Section 1542. 
Employee hereby expressly waives any and all rights and benefits
conferred upon him by the provisions of Section 1542 of the Civil Code of the
State of California (as well as under any other statute or common law
principles of similar effect), which states as follows:


 


“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 BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR.”


 


Employee hereby executes this Release of All Claims on this 30th
day 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”), and
Raymond M. Withy, Ph.D. (the “Employee”) (collectively, the “Parties”).


 


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


 


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


 


NOW, THEREFORE, in consideration of the promises and
mutual covenants herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties agree as
follows:


 


1.                                                                                       All
terms with initial capitals that are used herein and that are not specifically
defined herein shall have the defined meanings set forth in the option
agreements for each Option.


 


2.                                                                                       Amendment
to Options.  Section 2(a) of the
option agreement for each of the Options is amended and restated in its entirety
as follows:


 


“(a)                            Right
of Exercise.  This Option may be
exercised during its term in accordance with the Vesting Schedule set out in
the Notice of Grant and the applicable provisions of the Plan and this Option
Agreement; provided, however,
that after December 31, 2004,  (i) no
additional shares subject to the Option shall become exercisable if such shares
are not exercisable on December 31, 2004, and (ii) this Option may not be
exercised with regard to any shares that are not exercisable on December 31,
2004.”


 


3.                                                                                       Continuing
Effect.  This Amendment shall be
effective for all purposes as of the Effective Date.  Except as otherwise expressly modified by
this Amendment, the Agreement shall remain in full force and effect in
accordance with its terms.


 


4.                                                                                       Governing
Law.  This Amendment shall be
governed by, interpreted and construed in accordance with the laws of the State
of California, without regard to conflicts of laws principles.


 


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


 


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IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement 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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Attachment
A


 


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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