CONFIDENTIAL SEPARATION AGREEMENT
AND MUTUAL GENERAL RELEASE OF ALL CLAIMS
This Confidential Separation
Agreement and Mutual General Release of All Claims
(“Separation Agreement”) is made by and between ImaRx
Therapeutics, Inc. (“ImaRx”) and Evan C. Unger, MD
(“Executive”) with respect to the following
facts:
A. Executive was employed by
ImaRx as the President and Chief Executive Officer
(“CEO”) pursuant to a Second Amended Executive
Employment Agreement dated May 15, 2006 (“Employment
Agreement”).
B. Executive’s employment
ceased effective October 19, 2006 (“Separation
Date”). Executive’s continues to hold a director
position on ImaRx’s Board of Directors. Executive has been
paid all wages due as of the Separation Date.
C. A dispute has arisen
regarding whether Executive has earned any accrued, unused paid
time off (“PTO Dispute”). ImaRx maintains that
Executive, as President and CEO, took vacation and sick leave at
his discretion during his employment and did not accrue any PTO.
Accordingly, ImaRx denies that Executive is owed any accrued,
unused PTO as of the Separation Date. Executive is willing to
resolve the PTO Dispute on the terms set forth in this
agreement.
D. The parties desire to settle
all claims and issues that have, or could have been raised, in
relation to Executive’s employment with ImaRx and arising out
of or in any way related to the acts, transactions or occurrences
between Executive and ImaRx to date, including, but not limited to,
Executive’s employment with ImaRx or the termination of that
employment, on the terms set forth below.
THEREFORE, in consideration of the
promises and mutual agreements hereinafter set forth, it is agreed
by and between the undersigned as follows:
1. Severance Package .
ImaRx agrees to provide Executive with the following payments and
benefits (“Severance Package”) to which he is not
otherwise entitled. Executive acknowledges and agrees that this
Severance Package constitutes adequate legal consideration for the
promises and representations made by him in this Separation
Agreement.
1.1
Severance Payment . ImaRx agrees to pay Executive the
equivalent of one (1) year’s base salary, or
$250,000.00, less all appropriate federal and state income and
employment taxes (“Severance Payment”) in accordance
with the following two sentences. For the first six (6) months
following the Separation Date, the Severance Payment will be made
in twelve (12) equal installments in accordance with
ImaRx’s regular payroll schedule, followed by a one-time lump
sum payment for the remaining six (6) months, on the next
regular payday. This Section 1.1 reflects the benefits
described in Section 6.3(A) of the Employment Agreement, and
is subject to the terms and conditions of this Separation
Agreement. Other than as described in this Section 1.1, no
further benefits or payments are due to Executive under
Section 6.3(A) or any other provision of the Employment
Agreement.
1.2
Continuation of Group Health Benefits . ImaRx agrees to pay
the premiums required to continue Executive’s group health
care coverage through October 31, 2007, under the applicable
provisions of the Consolidated Omnibus Budget Reconciliation Act of
1985 (“COBRA”), provided that Executive elects to
continue and remains eligible for these benefits under COBRA, and
does not obtain health coverage through another employer during
this period. This Section 1.2 provides benefits in addition to
those contemplated under Section 6.3 of the Employment
Agreement, and is subject to the terms and
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conditions of this Separation Agreement. If Executive’s group
health insurance coverage included Executive’s dependents
immediately prior to the Separation Date, such dependents shall
also be covered at ImaRx’s expense.
1.3
Computers and Cellular Phone . ImaRx agrees to allow
Executive to retain the Sony laptop computer, Dell computer and
monitor, and Palm Treo 650 issued to Executive by ImaRx that is
currently in Executive’s possession or control. However, all
confidential or proprietary information in the computers, Palm Treo
650 or on any computer disks within Executive’s possession or
control must be returned in accordance with below paragraph 6 and
its subparts.
1.4
Attorneys’ Fees . ImaRx agrees to pay
Executive’s attorneys’ fees incurred in connection with
the negotiation of this Separation Agreement up to a maximum of
$6,091.00, subject to applicable taxes, if any.
1.5
Consulting Agreement . As additional consideration for
Executive’s acceptance of this Separation Agreement, ImaRx
agrees to retain Executive as a consultant, pursuant to the terms
of the Consulting Agreement between ImaRx and Executive, which
Executive is executing concurrently with this Separation Agreement
(the “Consulting Agreement”).
1.6
Stock Option Vesting . Notwithstanding any provision in the
Employment Agreement (including without limitation Section 6.3
or Section 7) to the contrary, the provisions of Section 6.3
or Section 7 of the Employment Agreement providing for
accelerated vesting of any and all stock options granted to
Executive shall be null and void and of no force or effect. The
vesting of any and all stock options granted to Executive shall be
governed by Section 3.2 of the Consulting
Agreement.
1.7
Amendment to Employment Agreement . Notwithstanding any
provision in the Employment Agreement to the contrary, the entirety
of Section 7 of the Employment Agreement shall be null and
void and of no force or effect. In consideration for the benefits
offered to Executive under this Separation Agreement, Executive
waives and relinquishes any and all rights or claims to any and all
benefits under Section 7 of the Employment
Agreement.
2. Section 409A
Compliance. The parties intend for the Employment Agreement and
the Separation Agreement (collectively, this
“Agreement”) either to satisfy the requirements of
Section 409A of Internal Revenue Code of 1986, as amended and all
applicable guidance promulgated thereunder
(“Section 409A”) or to be exempt from the
application of Section 409A, and this Agreement shall be
construed and interpreted accordingly. If this Agreement either
fails to satisfy the requirements of Section 409A or is not
exempt from the application of Section 409A, then the parties
hereby agree to amend or to clarify this Agreement in a timely
manner so that this Agreement either satisfies the requirements of
Section 409A or is exempt from the application of
Section 409A. This Section 2 shall operate as an
amendment to the Employment Agreement to bring the Employment
Agreement into good faith compliance with Section 409A and
shall replace and supersede any inconsistent provisions of the
Employment Agreement.
2.1
Notwithstanding any provision in this Agreement or in the
Consulting Agreement to the contrary, any termination of employment
contemplated under this Agreement shall satisfy the requirements of
a “separation from service” under
Section 409A.
2.2
Notwithstanding any provision in this Agreement to the contrary, in
the event Executive is a “specified employee,” as
defined in Section 409A, any severance payment, severance
benefits or other amounts payable under this Agreement that would
be subject to the special rule regarding payments to
“specified employees” under Section 409A(a)(2)(B)
of the
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Internal Revenue Code of 1986, as amended (the “Code”),
shall be delayed by six months such that the first payment is made
no earlier than the first date of the seventh month following the
Executive’s separation from service (or the date of
Executive’s death, whichever is earlier).
2.3
Notwithstanding any provision in the Employment Agreement
(including without limitation Section 6.3 or Section 7)
to the contrary, the original exercise periods for any and all
stock options granted to Executive as determined under the original
stock option award agreement(s) shall remain unchanged and shall
not be extended.
2.4 To
ensure satisfaction of the requirements of Section 409A(b)(3)
of the Code, assets shall not be set aside, reserved in a trust or
other arrangement, or otherwise restricted for purposes of the
payment of amounts payable under this Agreement.
2.5
ImaRx hereby informs Executive that the federal, state, local
and/or foreign tax consequences (including without limitation those
tax consequences implicated by Section 409A) of this Agreement
are complex and subject to change. Executive hereby acknowledges
that ImaRx has advised him that he should consult with his own
personal tax or financial advisor in connection with this Agreement
and its tax consequences. Executive understands and agrees
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