SEPARATION AGREEMENT AND RELEASE OF CLAIMS (initially provided to Mr. Daniel on January 22, 2007) (provided to Mr. Daniel as amended on January 30, 2007) (provided to Mr. Daniel as further amended on February 1, 2007)
Exhibit 10.2
SEPARATION AGREEMENT AND RELEASE OF CLAIMS
(initially provided to Xx. Xxxxxx on January 22, 2007)
(provided to Xx. Xxxxxx as amended on January 30, 2007)
(provided to Xx. Xxxxxx as further amended on February 1, 2007)
(initially provided to Xx. Xxxxxx on January 22, 2007)
(provided to Xx. Xxxxxx as amended on January 30, 2007)
(provided to Xx. Xxxxxx as further amended on February 1, 2007)
This Separation Agreement and Release of Claims (this “Separation Agreement”) is made by
and between ADVENTRX Pharmaceuticals, Inc. (the “Company”), a Delaware corporation, and Xxxxxx X.
Xxxxxx (“Xx. Xxxxxx”) (collectively, the “Parties”).
1. Xx. Xxxxxx’x employment with the Company will terminate effective February 15, 2007 (the
“Termination Date”);
2. The Company will retain Xx. Xxxxxx, and Xx. Xxxxxx agrees to provide, services as an
independent contractor on the terms provided in the independent contractor agreement attached
hereto as Exhibit A (including the Company’s Confidential Information and Invention Assignment
Agreement referenced therein) (the “Consulting Agreement”). The Parties agree that, concurrent with
the signing of this Separation Agreement, they will sign the Consulting Agreement and that the
effectiveness of the Consulting Agreement will be concurrent with the effectiveness of the
termination of Xx. Xxxxxx’x employment with the Company. For clarification, the Parties agree that
Xx. Xxxxxx will remain in Continuous Service (as defined in the Company’s 2005 Equity Incentive
Plan) to the Company for so long as the Consulting Agreement remains in effect but in no event
beyond March 30, 2007.
3. On the Termination Date, the Company will make available to Xx. Xxxxxx his final paycheck
for wages and all earned and unused vacation. This payment is not dependent upon Xx. Xxxxxx
signing this Separation Agreement. In addition, in exchange for Xx. Xxxxxx agreeing to be bound by
the terms of this Separation Agreement and the Consulting Agreement and performing his obligations
hereunder and thereunder (including, without limitation, granting the release set forth in Section
4), the Company will provide Xx. Xxxxxx with the following benefits to which he otherwise would not
be entitled:
3.1 Six (6) months of pay, payable in a lump sum on March 30, 2007, based on Xx. Xxxxxx’x
current base salary, less all the required withholdings and taxes; provided however, that both (a)
Xx. Xxxxxx has not terminated the Consulting Agreement prior to March 30, 2007 and (b) the Company
has not terminated the Consulting Agreement prior to March 30, 2007 as a result of Xx. Xxxxxx’x
material breach of the Consulting Agreement (including the Company’s Confidential Information and
Invention Agreement referenced therein).
3.2 If Xx. Xxxxxx chooses to elect continuation of coverage under the federal law known
as COBRA, the Company will continue to pay Xx. Xxxxxx’x medical, dental and vision premium through
September 30, 2007, unless he becomes eligible for coverage under another group insurance plan
before that date.
3.3 Xx. Xxxxxx acknowledges and agrees that, (a) upon his receipt of the final paycheck
described in Section 3, the Company has paid all salary, wages, bonuses, commissions, vacation pay,
floating holiday pay and other benefits or compensation due Xx. Xxxxxx from the Company and (b) but
for this Separation Agreement, Xx. Xxxxxx is not entitled to the benefits set forth in Sections 3.1
or 3.2 and that, in the event Xx. Xxxxxx fails to fully perform under this Separation Agreement or
the Consulting Agreement, the Company has no obligation to provide, or continue to provide, such
benefits.
4.1 Xx. Xxxxxx, for himself and his heirs, agents, assigns, executors, administrators,
representatives, successors and each of them, unconditionally, irrevocably and absolutely releases
and discharges the Company, and each of its current, former and future parents, subsidiaries,
divisions, partnerships, employee benefit plans and other related and affiliated entities of the
Company and their respective employees, officers, directors, agents, predecessors, successors,
fiduciaries, consultants, attorneys and assigns (collectively “Released Parties”), from all claims
related in any way to the transactions or occurrences between them to date, to the fullest extent
permitted by law, including, but not limited to, Xx. Xxxxxx’x employment with the Company, the
termination of his employment, and all other losses, liabilities, claims, demands and causes of
action, known or unknown, suspected or unsuspected, arising directly or indirectly out of or in
any way connected with Xx. Xxxxxx’x employment with the Company and the termination
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of that
employment. This release is intended to have the broadest possible application
permitted by law and includes, but is not limited to, any tort, contract, common law,
constitutional or statutory claims and all claims for attorneys’ fees, costs and expenses.
Notwithstanding the foregoing, this release shall not serve as a waiver of Xx. Xxxxxx’x rights to:
(i) vested benefits due to his employment with the Company, (ii) workers compensation or
unemployment benefits, (iii) statutorily-required indemnification under California Labor Code
Section 2802 or any comparable provisions of other states’ laws, or (iv) any other benefits or
claims that cannot be released as a matter of law.
4.2 The Company, and each of its current, former and future parents, subsidiaries, divisions,
partnerships, employee benefit plans and other related and affiliated entities of the Company and
their respective employees, officers, directors, agents, predecessors, successors, fiduciaries,
consultants, attorneys and assigns and each of them, unconditionally, irrevocably and absolutely
releases and discharges Xx. Xxxxxx and his heirs, agents, assigns, executors, administrators,
representatives, successors (collectively, “Releasees”) from all claims related in any way to the
transactions or occurrences between them to date, to the fullest extent permitted by law, including
but not limited to, Xx. Xxxxxx’x employment with the Company, the termination of his employment,
and all other losses, liabilities, claims, demands and causes of action, known or unknown,
suspected or unsuspected, arising directly or indirectly out of or in any way connected with Xx.
Xxxxxx’x employment with the Company and the termination of that employment. This release is
intended to have the broadest possible application permitted by law and includes, but is not
limited to, any tort, contract, common law, constitutional or statutory claims and all claims for
attorneys’ fees, costs and expenses.
4.3 Each of the Parties declares and represents that it intends this Separation Agreement to
be complete and not subject to any claim of mistake, and that the release herein expresses a full
and complete release and, regardless of the adequacy or inadequacy of the consideration, the
Parties intend the releases to be final and complete. The Parties execute this Separation
Agreement with the full knowledge that the releases contained in it covers all possible claims
against the Released Parties and the Releasees, as applicable, to the fullest extent permitted by
law.
5. Acknowledgement of Understanding. Each of the Parties acknowledges that it may
discover facts or law different from, or in addition to, the facts or law that it knows or believes
to be true with respect to the claims released in this Separation Agreement and agrees,
nonetheless, that this Separation Agreement and the releases contained in it shall be and remain
effective in all respects notwithstanding such different or additional facts or the discovery of
them. Each of the Parties expressly acknowledges and agrees that its rights under Section 1542 of
the California Civil Code and any comparable provisions of other states’ and federal law are
expressly waived. That section provides:
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A general release does not extend to claims which the creditor does not know or
suspect to exist in his or her favor at the time of executing the
release, which if known by him or her must have materially affected his or her
settlement with the debtor.
Each of the Parties expressly acknowledges, agrees and understands that the general release
give in Section 4 applies to all unknown, unsuspected and unanticipated claims, liabilities and
causes of action that it may have against any of the Released Parties or the Releasees, as
applicable.
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10.1 Xx. Xxxxxx and the Company agree to resolve any claims they may have against each other
or that Xx. Xxxxxx has with any of the other Released Parties through final and binding
arbitration. This agreement to arbitrate applies to any and all disputes about the validity,
interpretation, or effect of this Separation Agreement or alleged violations of it and whether a
particular claim is covered by this Separation Agreement. Except as provided in Section 10.2 and
Section 10.3, arbitration shall be the exclusive remedy for any such claim or dispute, and the
Parties expressly waive their rights to a jury trial on any such claim or dispute. However, either
party may bring an action in court to compel arbitration under this Separation Agreement or to
enforce an arbitration award. The Parties agree that a neutral arbitrator from the American
Arbitration Association will administer any such arbitration(s) pursuant to its National Rules for
the Resolution of Employment Disputes. The arbitrator shall issue a written decision with the
essential findings and conclusions on which the decision is based.
10.2 The requirement to arbitrate disputes shall not preclude either of the Parties from
filing a charge or claim with a state or federal government agency. However, Xx. Xxxxxx
acknowledges that he is not entitled to any other monies other than those payments described in
this Separation Agreement.
10.3 Nothing in this Section 10 shall preclude either Party from seeking interim or
provisional relief in the form of a temporary restraining order, preliminary injunction, or other
interim relief concerning a dispute prior to or during an arbitration pursuant to this Section 10
necessary to protect the interests of such Party.
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11.1 Xx. Xxxxxx acknowledges and agrees that he has read and understands the terms of this
Separation Agreement.
11.2 Xx. Xxxxxx acknowledges that this Separation Agreement advises him in writing that he may
consult with an attorney before executing this Separation Agreement, and that he has obtained and
considered such legal counsel as he deems necessary, such that he is entering into this Separation
Agreement freely, knowingly and voluntarily.
11.3 Xx. Xxxxxx acknowledges that he has been given at least twenty-one (21) days in which to
consider whether or not to enter into this Separation Agreement. Xx. Xxxxxx understands that, at
his option, he may elect not to use the full twenty-one (21) day period.
11.4 Xx. Xxxxxx shall have seven (7) full calendar days after signing this Separation
Agreement to revoke this Separation Agreement. This Separation Agreement will not become effective
until the expiration of the revocation period. Xx. Xxxxxx’x revocation of this Separation
Agreement must be in writing and received by Xxxxxxx Xxxxx, General Counsel, no later than Noon on
the eighth day in order to be effective. If Xx. Xxxxxx does not revoke acceptance within the seven
(7) day period, this Separation Agreement will become fully effective and enforceable on the eighth
day after the Separation Agreement is signed (the “Effective Date”).
11.5 Xx. Xxxxxx does not waive or release any rights or claims that he may have under the Age
Discrimination in Employment Act that arise after the execution of this Separation Agreement. Xx.
Xxxxxx is not waiving his right to file a complaint or charge with the EEOC (including a challenge
to the validity of this Separation Agreement) or participate in any investigation or proceeding
conducted by the EEOC.
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Date
|
February 2, 2007 | /s/ Xxxxxx X. Xxxxxx | ||
Xxxxxx X. Xxxxxx | ||||
Date
|
Feb 2, 2007 | /s/ Xxxxxxx X. Xxxxxx | ||
ADVENTRX Pharmaceuticals, Inc. |
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EXHIBIT A
CONSULTING AGREEMENT
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