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)
This Separation
Agreement and Release of Claims (this “Separation
Agreement”) is made by and between ADVENTRX Pharmaceuticals,
Inc. (the “Company”), a Delaware corporation, and
Robert A. Daniel (“Mr. Daniel”) (collectively, the
“Parties”).
WHEREAS, the
Parties have agreed to transition Mr. Daniel’s
responsibilities and duties to the Company in a considered and
professional manner;
WHEREAS,
Mr. Daniel will conclude his employment with the Company, as
described herein;
WHEREAS, after the
conclusion of Mr. Daniel’s employment with the Company,
Mr. Daniel wishes to serve as a consultant to the Company, and
the Company wishes to retain Mr. Daniel as a
consultant;
WHEREAS, the
Parties desire an amicable separation of employment and to resolve
any and all claims, disputes, issues, or matters that were asserted
or could be asserted;
NOW THEREFORE, in
consideration of the promises, covenants and agreements set forth
herein, and subject to the terms and conditions set forth below,
the Parties desire to, and hereby do, agree as follows:
1. Mr. Daniel’s
employment with the Company will terminate effective
February 15, 2007 (the “Termination
Date”);
2. The
Company will retain Mr. Daniel, and Mr. Daniel 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 Mr. Daniel’s employment with the
Company. For clarification, the Parties agree that Mr. Daniel
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
Mr. Daniel his final paycheck for wages and all earned and
unused vacation. This payment is not dependent upon Mr. Daniel
signing this Separation Agreement. In addition, in exchange for
Mr. Daniel 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 Mr. Daniel 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 Mr. Daniel’s current base salary, less
all the required withholdings and taxes; provided however, that
both (a) Mr. Daniel 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 Mr. Daniel’s material breach of the
Consulting Agreement (including the Company’s Confidential
Information and Invention Agreement referenced therein).
3.2 If
Mr. Daniel chooses to elect continuation of coverage under the
federal law known as COBRA, the Company will continue to pay
Mr. Daniel’s 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
Mr. Daniel 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
Mr. Daniel from the Company and (b) but for this
Separation Agreement, Mr. Daniel is not entitled to the
benefits set forth in Sections 3.1 or 3.2 and that, in the
event Mr. Daniel 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
Mr. Daniel, 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, Mr. Daniel’s 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 Mr. Daniel’s
employment with the Company and the termination
2
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 Mr. Daniel’s 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
Mr. Daniel 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,
Mr. Daniel’s 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 Mr. Daniel’s 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 adequac
|
