Unassociated Document


    TARGETED
      GENETICS CORPORATION

     

    SEPARATION
      AGREEMENT AND RELEASE

     

    This
      Separation Agreement and Release (this “Agreement”)
      is
      made by and between Targeted Genetics Corporation, a Washington corporation
      (the
“Company”),
      and
      H. Stewart Parker (“Ms. Parker”
or
      “Employee”)
      on
      November 14, 2008 (the “Agreement
      Date”),
      effective as of the Separation Date (as defined below).

     

    WHEREAS,
      Ms.
      Parker is the Chief Executive Officer and President of the Company up to the
      Separation Date.

     

    WHEREAS,
      the
      Company and Ms. Parker wish to terminate their working relationship as of the
      Separation Date (defined below), and as such Ms. Parker’s employment with the
      Company is being terminated (the “Termination”).

     

    WHEREAS,
      in
      exchange for Ms. Parker’s agreement to release the Company from any and all
      claims arising from or related to the employment relationship, and for agreeing
      to continue to provide consulting services to the Company for a period of six
      (6) months following the Separation Date, the Company shall provide the benefits
      as set forth herein.

     

    NOW,
      THEREFORE,
      in
      consideration of the mutual promises made herein, the Company and Ms. Parker
      (individually referred to as a “Party,”
      collectively referred to as the “Parties”)
      hereby
      agree as follows:

     

    1. Termination
      of Employment.
      Ms.
      Parker and the Company acknowledge and agree that Ms. Parker’s employment with
      the Company shall terminate, as of the close of business, on November 6, 2008
      (the “Separation
      Date”).

     

    2. Separation
      Benefits.
      In
      consideration for the release of claims set forth below and other obligations
      under this Agreement and in full satisfaction of its obligations to Ms. Parker
      under the terms of any agreements Ms. Parker may have with the Company, and
      provided that this Agreement is executed and delivered by Ms. Parker and not
      revoked under Section 6 herein, the Company agrees to provide Ms. Parker
      with the benefits described in Section 3 below.

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    3. Separation
      Consideration.
      

     

    In
      exchange for Ms. Parker’s agreement to the release of claims set forth in
      Section 5, below, the Company agrees to provide Ms. Parker with the
      following benefits (the “Separation
      Benefits”):

     

    (a) Restricted
      Stock Units.
      Ms.
      Parker holds a total of One Hundred Thousand (100,000) restricted stock units
      (the “RSUs”)
      issued
      pursuant to the terms of the Company’s Stock Incentive Plan (the “Plan”)
      and
      related restricted stock unit agreement. As of the Separation Date, Sixteen
      Thousand Six Hundred Sixty-Six (16,666) of such RSUs have vested and have been
      paid out pursuant to the terms of the Plan and the related restricted stock
      unit
      agreement and the remaining Eighty Three Thousand Three Hundred Thirty-Four
      (83,334) of the RSUs are unvested. Ms. Parker agrees that under the terms of
      the
      Plan and related restricted stock unit agreement the unvested RSUs are to be
      immediately forfeited without consideration. Notwithstanding the foregoing,
      in
      exchange for Ms. Parker’s release of claims and her agreement to provide
      consulting services as described in Section 7, the Company shall fully
      accelerate the vesting of such unvested RSUs such that the remaining Eighty
      Three Thousand Three Hundred Thirty-Four (83,334) RSUs shall become fully
      vested. Such accelerated RSUs shall be settled not later then December 31,
      2008,
      provided that this Agreement is effective. 

     

    (b)
      Stock
      Grant.
      In
      exchange for Ms. Parker’s release of claims and agreement to perform
      consulting services as described in Section 7, pursuant to the Plan, the Company
      has made a Stock Grant (as defined in the Plan) to Ms. Parker in the amount
      of
      One Hundred Fifty Thousand (150,000) Shares (as defined in the Plan), subject
      to
      the execution and effectiveness of this Agreement. The Parties shall execute
      a
      Stock Grant Agreement (as defined in the Plan). 

     

    (c) 
      Payment
      of COBRA Continuation Coverage Premiums.
      If Ms.
      Parker timely elects continuation coverage under COBRA, the Company will pay,
      on
      Ms. Parker’s behalf, the applicable COBRA premiums to continue her group health
      insurance coverage through COBRA at the level in effect as of the Separation
      Date (including dependent coverage, if applicable) through May 31, 2009, to
      the extent such coverage remains available. Notwithstanding the foregoing,
      the
      Company’s obligation to pay Ms. Parker’s COBRA premiums will cease immediately
      in the event that she becomes covered under the group health insurance plan
      of a
      new employer at any time during such period, and such coverage is substantially
      equivalent to or superior than such coverage provided by the Company, and Ms.
      Parker agrees to provide prompt written notice to the Company (or its successor)
      if she becomes eligible for such group health insurance coverage during such
      period. 

     

    (d)
      Cell
      Phone.
      Ms.
      Parker shall be permitted to keep the cell phone she currently uses and the
      Company shall continue pay the expenses for such cell phone for a period of
      thirty (30) days commencing on the Separation Date. Ms. Parker shall personally
      assume the contract for such cell phone and become personally liable for any
      expenses related to such cell phone upon the expiration of such thirty-day
      period. 

     

    (e)
      Payment of Attorney’s Fees.
      The
      Company shall pay Ms. Parker’s documented attorneys' fees and expenses incurred
      as a result of negotiating this Agreement, in an amount not to exceed Three
      Thousand Dollars ($3,000).

     

    4. No
      Other Payments Due.
      Ms.
      Parker acknowledges that, on the Agreement Date, the Company provided her a
      final paycheck for all accrued salary, any commissions or bonuses that may
      have
      accrued or may accrue, unused accrued vacation and other sums that were due
      to
      Ms. Parker through the Separation Date. Except as specifically provided in
      Sections 3 and 8 hereof, Ms. Parker acknowledges and agrees that she
      shall not be entitled to earn or receive payment of any commission or other
      incentive compensation from the Company. 

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        



    

    5. Release
      of Claims.
      In
      consideration for the benefits set forth in this Agreement, the Company and
      Ms.
      Parker, on behalf of themselves and each of their respective heirs, executors,
      administrators, predecessor and successor corporations and assigns, each hereby
      fully and forever releases Ms. Parker and the Company and its affiliates and
      subsidiaries, and each of their respective heirs, executors, officers,
      directors, employees, investors, stockholders, administrators, predecessor
      and
      successor corporations and assigns, respectively (collectively, the
“Released
      Parties”),
      of
      and from any claim, duty, obligation or cause of action relating to any matters
      of any kind, whether presently known or unknown, suspected or unsuspected,
      that
      any of them may possess arising from any omissions, acts or facts that have
      occurred up until and including the Separation Date including, without
      limitation:

     

    (a) any
      and
      all claims relating to or arising from Ms. Parker’s employment relationship with
      the Company and the Termination;

     

    (b) except
      for the rights granted in Section 3(a) - (b) hereof (and the rights
      appurtenant thereto), any and all claims relating to or arising from the RSUs
      or
      any other right to purchase shares of the Company’s stock;

     

    (c) any
      and
      all claims for sales commissions, performance bonuses or similar
      payments;

     

    (d) any
      and
      all claims for wrongful discharge of employment; breach of contract, both
      express and implied; breach of a covenant of good faith and fair dealing, both
      express and implied, negligent or intentional infliction of emotional distress;
      negligent or intentional misrepresentation; negligent or intentional
      interference with contract or prospective economic advantage; negligence; and
      defamation;

     

    (e) any
      and
      all claims for violation of any federal, state or municipal statute, including,
      but not limited to, Title VII of the Civil Rights Act of 1964, the Civil
      Rights Act of 1991, the Americans with Disabilities Act of 1990, the Age
      Discrimination in Employment Act of 1967, the California Fair Employment and
      Housing Act, and any family and medical leave acts; 

     

    (f) any
      and
      all claims relating to or arising out of any other laws and regulations relating
      to employment or employment discrimination; and

     

    (g) except
      as
      provided in Section 3(e), any and all claims for attorneys’ fees and
      costs.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        



    

    The
      Company and Ms. Parker agree that the release set forth in this Section 5
      shall be and remain in effect in all respects as a complete general release
      as
      to the matters released. This release does not extend to any actions of
      enforcement by the Securities and Exchange Commission against Ms. Parker in
      her
      capacity as an officer or member of the Board of Directors of the Company,
      fraud
      perpetrated by Ms. Parker, willful misconduct by Ms. Parker that resulted in
      injury to the Company , payments or benefits receivable, or obligations incurred
      or specified under this Agreement or to any right of indemnification Ms. Parker
      had as an officer or member of the Board of Directors of the Company, or to
      any
      benefits to which Ms. Parker is entitled under any 401(k), profit sharing or
      other employee benefit plan maintained by the Company to which she is entitled
      or vested prior to and as of the Separation Date. The Company shall defend
      and
      indemnify Ms. Parker as required and to the fullest extent permitted by its
      Articles of Incorporation and Bylaws.

     

    6. Acknowledgment
      of Waiver of Claims under ADEA.
      Ms.
      Parker acknowledges that she is waiving and releasing any rights she may have
      under the Age Discrimination in Employment Act of 1967 (“ADEA”)
      and
      that this waiver and release is knowing and voluntary. Ms. Parker and the
      Company agree that this waiver and release does not apply to any rights or
      claims that may arise under ADEA after the date of this Agreement. Ms. Parker
      acknowledges that the consideration given for this waiver and release Agreement
      is in addition to anything of value to which Ms. Parker was already entitled.
      Ms. Parker further acknowledges that she has been advised by this writing that
      (a) she should consult with an attorney prior
      to
      executing this Agreement; (b) she has at least twenty-one (21) days within
      which to consider this Agreement; (c) she has seven (7) days following
      her execution of this Agreement to revoke the Agreement (the “Revocation
      Period”).
      This
      Agreement shall not be effective until the Revocation Period has expired.
      Nothing in this Agreement prevents or precludes Ms. Parker from challenging
      or
      seeking a determination in good faith of the validity of this waiver under
      the
      ADEA, nor does it impose any condition precedent, penalties or costs for doing
      so, unless specifically authorized by federal law.

     

    7. Consulting
      Services.
      For a
      period of six (6) months following the Separation Date, Ms. Parker agrees to
      provide consulting services to the Company in order to provide transition
      assistance to the interim or newly hired Chief Executive Officer of the Company,
      as reasonably required by the Company, not to exceed ten hours per month, at
      such times as are mutually agreed to by Ms. Parker and the Company. Ms. Parker
      shall be paid Five Thousand Dollars ($5,000) per month, payable at the Company’s
      normal payroll intervals, in return for her consulting services, with partial
      months being pro-rated. In the event Ms. Parker incurs any expenses directly
      related to the provision of such consulting services, the Company agrees to
      reimburse Ms. Parker for reasonable documented business expenses in accordance
      with its standard reimbursement policy. Ms. Parker’s termination of employment
      is intended to constitute a separation from service as such term is defined
      in
      Treasury Regulation Section 1.409A-1(h)(1).

     

    8. Benefits.
      Ms.
      Parker’s health insurance benefits will cease on the Separation Date, subject to
      her right (and her qualified beneficiaries’ rights) to COBRA continuation
      coverage. As set forth in Section 3 above, the Company shall pay the
      applicable COBRA premium set forth above. Ms. Parker’s participation in all
      other employee benefits and incidents of employment cease on the Separation
      Date. Ms. Parker ceases accruing employee benefits, including, but not limited
      to, vacation time and paid time off and stock option and RSUs vesting as of
      the
      Separation Date. Nothing herein is in any way intended to apply to Ms. Parker’s
      401(k) voluntary contributions prior to the Separation Date. 

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        



    

    


     

    9. Covenants.
      

     

    (a) Confidential
      Information.
      Ms.
      Parker represents, warrants and agrees that: (i) she properly signed,
      returned and became a party to the Invention Disclosure and Confidentiality
      Agreement with the Company (the “Confidentiality
      Agreement”),
      (ii) the Confidentiality Agreement remains binding and enforceable between
      the parties; and (iii) Ms. Parker has not breached any of her obligations
      to the Company under the terms of the Confidentiality Agreement.

     

    (b) Mutual
      Non-Disparagement.
      Ms.
      Parker agrees that she will not engage in conduct or undertake
      speech
      (written
      or oral)
      derogatory to or otherwise disparage the Company, any officer of the Company,
      any member of its Board of Directors as of the date of this agreement, or their
      products or services. The Company agrees that its officers and Board of
      Directors will not engage in conduct or undertake speech (written or oral)
      that
      is derogatory to or otherwise disparage Ms. Parker.

     

    (c) Computer
      Access.
      Ms.
      Parker shall be permitted to keep her computer, provided, however, that the
      Company shall remove any non-personal data, programs, or other information
      from
      such Computer. 

     

    (d) Return
      of Company Property.
      Ms.
      Parker represents, warrants and agrees that she has returned to the Company
      all
      property or data of the Company of any type whatsoever that has been in her
      possession or control including the transfer of all passwords, access cards,
      keys or signatory authority controlled by her on behalf of the
      Company.

     

    (e) Resignation
      from the Board of Directors.
      Upon
      the effective date of this Agreement, Ms. Parker shall resign as a member of
      the
      board of directors of the Company. Such resignation shall be effective
      immediately as of the date thereof. 

     

    10. Breach
      of this Agreement.
      The
      Parties acknowledge that upon material breach of any provision of this
      Agreement, the Company its officers and directors, on the one hand, and Ms.
      Parker on the other hand, would sustain irreparable harm from such breach,
      and,
      therefore, the Parties agree that in addition to any other remedies which a
      Party may have for any material breach of this Agreement or otherwise, such
      Party shall be entitled to obtain equitable relief including specific
      performance, injunctions and restraining the other Party from committing or
      continuing any such violation of this Agreement. 

     

    11. Authority.
      The
      Company represents and warrants that the undersigned has the authority to act
      on
      behalf of the Company and to bind the Company and all who may claim through
      it
      to the terms and conditions of this Agreement. Ms. Parker represents and
      warrants that she has the capacity to act on her own behalf and on behalf of
      all
      who might claim through her to bind them to the terms and conditions of this
      Agreement. Each Party warrants and represents that there are no liens or claims
      of lien or assignments in law or equity or otherwise of or against any of the
      claims or causes of action released herein.

     

    12. No
      Representations.
      Neither
      Party has relied upon any representations or statements made by the other Party
      hereto which are not specifically set forth in this Agreement.

     

    13. Severability.
      In the
      event that any provision hereof becomes or is declared by a court or other
      tribunal of competent jurisdiction to be illegal, unenforceable or void, this
      Agreement shall continue in full force and effect without said
      provision.

     

    14. Arbitration.
      The
      Parties shall attempt to settle all disputes arising in connection with this
      Agreement through good faith consultation. In the event no agreement can be
      reached on such dispute within fifteen (15) days after notification in writing
      by either Party to the other concerning such dispute, the dispute shall be
      settled by binding arbitration to be conducted in King County, Washington before
      the American Arbitration Association under its under its Employment Arbitration
      Rules and Mediation Procedures, or by a judge to be mutually agreed upon. The
      Company shall pay the costs of the arbitration proceeding, provided however
      that
      each Party shall bear its or her own attorneys' fees and expenses, unless
      otherwise determined by the arbitrator, who shall have the authority
      to award payment of attorneys' fees and costs as provided under any
      applicable Washington statute or regulation. The arbitration decision shall
      be final, conclusive and binding on both Parties and any arbitration award
      or
      decision may be entered in any court having jurisdiction. The Parties agree
      that
      the prevailing Party in any arbitration shall be entitled to injunctive relief
      in any court of competent jurisdiction to enforce the arbitration award. This
      Section 14 shall not apply to any breach of or efforts to enforce the
      Confidentiality Agreement. The
      Parties hereby waive any rights they may have to trial by jury in regard to
      arbitrable claims.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        



    

    15. Entire
      Agreement.
      This
      Agreement, along with the other agreements referenced herein, represents the
      entire agreement and understanding between the Company and Ms. Parker concerning
      Ms. Parker’s separation from the Company, and supersedes and replaces any and
      all prior agreements and understandings concerning Ms. Parker’s employment
      relationship with the Company.

     

    16. Withholding
      Taxes.
      All
      amounts payable pursuant to this Agreement shall be subject to applicable
      withholding taxes.

     

    17. No
      Oral Modification.
      This
      Agreement may only be amended in writing signed by Ms. Parker and the
      Company.

     

    18. Effective
      Date.
      This
      Agreement is effective upon the expiration of the Revocation Period described
      in
      Section 6.

     

    19. Governing
      Law.
      This
      Agreement shall be governed by the laws of the state of Washington, without
      regard to its conflicts of law provisions.

     

    20. Counterparts.
      This
      Agreement may be executed in counterparts, and each coun-terpart shall have
      the
      same force and effect as an original and shall constitute an effective, binding
      agreement on the part of each of the undersigned.

     

    21. Assignment.
      This
      Agreement may not be assigned by Ms. Parker without the prior written consent
      of
      the Company.

     

    22. Voluntary
      Execution of Agreement.
      This
      Agreement is executed voluntarily and without any duress or undue influence
      on
      the part or behalf of the Parties hereto, with the full intent of releasing
      all
      claims. The Parties acknowledge that: 

     

    (a) they
      have
      read this Agreement; 

     

    (b) they
      have
      been represented in the preparation, negotiation, and execution of this
      Agreement by legal counsel of their own choice or that they have voluntarily
      declined to seek such counsel; 

     

    (c) they
      understand the terms and consequences of this Agreement and of the releases
      it
      contains; and 

     

    (d) they
      are
      fully aware of the legal and binding effect of this Agreement.

     

    [Signature
      Page Follows]

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        



    

    IN
      WITNESS WHEREOF, the Parties have executed this Separation Agreement and Release
      on the respective dates set forth below.

     

    TARGETED
      GENETICS
      CORPORATION


    
      	 	 	 	 
	/s/ Jeremy
              L.
              Curnock Cook 	 	 	 
	
              
Its: Executive
              Chairman	 	 	
            
	Dated:
              November 14, 2008	 	 	 


    

     

    H.
      STEWART PARKER

    
      	 	 	 	 
	/s/ 
H.
              Stewart Parker	 	 	 
	
              
Dated:
              November 14, 2008