Exhibit 10.46
SEPARATION AGREEMENT AND RELEASE OF CLAIMS
If you choose to accept Avanir
Pharmaceuticals’ (“the Company”) Severance
Package, please sign and return this Agreement to Jesus Varela,
Director of Human Resources, by no later than 5:00 p.m. on 29
June 2007. You may scan and e-mail the signed Agreement to
Jesus Varela at jvarela@avanir.com and mail the original to
him at the Company’s offices at 101 Enterprise, Suite 300,
Aliso Viejo, California 92656, telephone 949.389.6747.
RECITALS
WHEREAS, Jagadish Sircar
(“Employee”) will conclude his employment with the
Company (collectively the “Parties”), as described
herein;
WHEREAS, after the conclusion of
Employee’s employment with the Company, the Employee wishes
to serve as a consultant to the Company, and the Company wishes to
retain the Employee as a consultant, on the terms and conditions
described herein; and
WHEREAS, each of the Parties to this
Agreement desires an amicable separation of the Employee’s
employment with the Company, and to resolve any and all claims,
disputes, issues, or matters that were asserted or could be
asserted;
NOW THEREFORE, in consideration of
the mutual covenants and agreements herein contained and other good
and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Parties agree as follows:
(a) Termination Date
Employee’s employment with the
Company will terminate effective 29 June 2007 (the
“Termination Date”);
(b) Consulting Services
Employee agrees to provide to the
Company consulting services, defined below, as an independent
contractor for a term of six (6) months following the
Termination Date (the “Consulting Period”) at any
reasonable times requested by the Company; provided that the
Company shall not require the Employee to provide any such services
to an extent that would unreasonably interfere with the
Employee’s search for employment or with any subsequent
employment. Such services include, but are not limited to,
providing advice and assistance pertaining to research
collaborations and patent portfolio, special projects,
conference/meeting appearances or any other matter consistent with
the Employee’s background, skills and experience, as
requested by Keith Katkin, President & Chief Executive Officer
(the “Consulting Services”). Such Consulting Services
shall be limited to a maximum of one (1) full day per week. As
compensation for providing Consulting Services during the
Consulting Period, Employee will receive $1,000.00 per week payable
by the Company within thirty (30) days following its receipt
of an invoice for the Work. The Company shall reimburse Employee
for reasonable expenses, including travel expenses, incurred on
behalf of the Company during the Consulting Period, provided that
such expenses are approved in advance and substantiated in
accordance with Company policies. Employee understands and agrees
that his obligations to the Company under the Employee Invention
Assignment, Patent and Confidential Information Agreement entered
into between Employee and the Company on 15
May 1996, a copy of which is attached to this Agreement, shall
continue through the Consulting Period. The Consulting Period will
terminate on 31 December 2007 unless extended upon mutual
agreement.
If, at any time within the Consulting
Period, the Company enters into a definitive agreement with a
strategic partner pertaining to the development and/or
commercialization of AVP-13358, Xenerex™, and/or RCT,
Employee shall be entitled to an incentive payment in an amount
equal to $15,000.00 (the “Incentive Payment”) for each
transaction. In addition, Employee shall be entitled to an
incentive payment in an amount equal to $5,000.00 for each
additional cytokine inhibitor that is included within the same, or
different, definitive agreement. The Incentive Payment(s) shall be
made to Employee within five (5) days following the execution
of the definitive agreement(s) which triggered such Incentive
Payment(s). Employee acknowledges and agrees that the Company shall
withhold appropriate federal, state, local (and foreign, if
applicable) income and employment taxes from the Incentive
Payment(s).
(c) Severance
In exchange for agreeing to be bound by the terms
of this Agreement, the Company will provide Employee with the
following payments and incentives to which he otherwise would not
be entitled:
| |
a) |
|
The Company will make a cash severance payment to Employee in
an amount equal to thirty-nine (39) weeks of Employee’s
current base salary, less all the required withholdings and taxes,
payable in a lump sum. |
| |
| |
b) |
|
If Employee chooses to elect continuation of coverage under the
federal law known as COBRA, the Company will continue to pay his
medical, dental and vision premiums through 31 March 2008,
unless Employee becomes eligible for coverage under another group
insurance plan before that date, at which time the Company’s
payment obligations would terminate. Effective 01 April 2008,
COBRA payments become Employee’s sole responsibility. |
| |
| |
c) |
|
Right Management Consultants will be available to Employee for
the purpose of providing executive outplacement services, provided
that Employee begins utilizing such services no later than two
(2) months after the date of this Agreement. Included in the
outplacement services offered will be: |
| |
• |
|
Coaching with an Executive Career Management Consultant |
| |
| |
• |
|
Logistics and Support with an Office |
| |
| |
• |
|
Unlimited Access Right Management’s Learning Center |
| |
| |
• |
|
Marketplace Resources |
| |
| |
• |
|
Computer, Phone |
The
payments described in this Section will become due one business day
after the Date of Irrevocability (defined below), provided that
Employee complies with his obligations under this Agreement.
(d) Release
(1) Employee for himself and his
heirs, agents, assigns, executors, successors and each of them,
unconditionally, irrevocably and absolutely releases and discharges
the Company, and any parent and subsidiary corporations, divisions,
and affiliated corporations, partnerships or other affiliated
entities of the Company, past and present, as well as the
Company’s employees, officers, directors, agents,
predecessors, successors 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,
Employee’s employment with the Company, the termination of
his employment, and
2
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 Employee’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
(including, without limitation, claims under the Americans with
Disabilities Act, Title VII of the Civil Rights Act of 1964, Older
Workers Benefit Protection Act and Age Discrimination in Employment
Act, California Fair Employment and Housing Act, state or local
fair empl
|
