Exhibit 10.1
SEPARATION AND GENERAL RELEASE
AGREEMENT
This Separation
and General Release Agreement (“ Agreement ”),
dated July 16, 2008, is entered into by and between Una S.
Ryan, Ph.D. (the “ Employee ”) and AVANT
Immunotherapeutics, Inc., a Delaware corporation (the “
Employer ”), its parents, subsidiaries and affiliates,
a complete and exhaustive list of which is attached as
Exhibit A to this Agreement, and each of their respective
officers, directors, employees, shareholders, investors, members,
managers, partners, plans, plan administrators and fiduciaries,
representatives, attorneys, advisors and agents (each in their
official capacities with the Employer), as well as any
predecessors, future successors or assigns or estates of any of the
foregoing (collectively, including without limitation the Employer,
the “ Company ”).
WHEREAS, Employee
served as Employer’s President and Chief Executive Officer
pursuant to an Amended and Restated Employment Agreement dated as
of August 20, 1998 and as amended by a First Amendment dated
as of December 23, 2002, a Second Amendment dated as of
September 18, 2003, and a Third Amendment dated as of
October 19, 2007 (collectively, the “ Employment
Agreement ”);
WHEREAS, Employee
and Employer mutually agree that Employee should no longer serve as
Employer’s President and Chief Executive Officer and that
Employee’s employment with Employer should cease;
and
WHEREAS, each of
the parties hereto believes it to be in their respective best
interests to enter into an agreement to set forth the terms of
their respective rights and obligations relating to the cessation
of Employee’s employment with Employer.
NOW THEREFORE, in
consideration of the foregoing premises, the mutual covenants and
agreements contained herein, and other good and valuable
consideration the receipt and sufficiency of which is hereby
acknowledged, the parties hereto, intending to be legally bound,
hereby agree as follows:
1.
Separation of Employment . Employee acknowledges and
understands that Employee’s last day of work with Employer
was May 7, 2008 (the “ Separation Date ”),
but that Employee has continued to be paid and provided with
benefits through June 7, 2008, and that Employee has received
all compensation and benefits to which Employee is entitled as a
result of Employee’s employment, except for the compensation
provided for in this Agreement. Employee understands that,
except as otherwise provided in this Agreement, Employee is
entitled to nothing further from the Employer, including
reinstatement by the Employer or any future or deferred
compensation.
2.
Employee Release of Company .
(A)
In consideration of the release, payments and other benefits set
forth in Sections 4, 5, 6, and 7 below, Employee hereby
unconditionally and irrevocably releases, waives, discharges and
gives up, to the fullest extent permitted by law, any and all
Claims (as defined below) that Employee may have against the
Company arising on or prior to the date of Employee’s
execution and delivery of this Agreement to Employer. “
Claims ” means any and all actions, charges,
complaints, controversies, demands, causes of action, suits,
rights, and/or claims whatsoever, arising out of Employee’s
employment with or position as an officer, director or employee of
the Company and her termination from her employment with or
position as an officer, director or employee of the Company,
including without limitation, for debts, sums of money, wages,
salary, commissions, bonuses, stock options, severance pay,
vacation pay, sick pay, fees and costs, attorneys’ fees,
losses, penalties, damages, including damages for pain and
suffering and emotional harm arising, directly or indirectly, out
of any promise, agreement, offer letter, contract, understanding,
common law, tort, the laws, statutes, and/or regulations of the
Commonwealth of Massachusetts, and any other federal, state or
local civil rights law, regulation or ordinance, including, but not
limited to, and to the extent applicable, federal and state wage
and hour laws, federal and state whistleblower laws, Title VII of
the Civil Rights Act of 1964, the Civil Rights Act of 1991, the
Equal Pay Act, the Americans with Disabilities Act, the Family and
Medical Leave Act, the Employee Retirement Income Security Act
(excluding COBRA), the Vietnam Era Veterans Readjustment Assistance
Act, the Fair Credit Reporting Act, the Age Discrimination in
Employment Act (“ ADEA ”), the Older Workers
Benefit Protection Act, the Occupational Safety and Health Act, the
Sarbanes-Oxley Act of 2002, and the Massachusetts Fair Employment
Practices Act (M.G.L. § 151B, et. seq. ) as each may be
amended from time to time, whether arising directly or indirectly
from any act or omission, whether intentional or
unintentional. This Section 2(A) releases all
Claims including those of which Employee is not aware and those not
mentioned in this Agreement up to the date of Employee’s
execution and delivery of this Agreement to Employer.
Employee expressly
acknowledges and agrees that, by entering into this Agreement,
Employee is releasing and waiving the Claims, including, without
limitation, Claims that Employee may have arising under ADEA, which
have arisen on or before the date of Employee’s execution and
delivery of this Agreement to Employer .
(B)
The foregoing Release does not include, and does not release, the
Employee’s right to seek to enforce the terms of this
Agreement, including without limitation the right of Employee to
obtain the payments and benefits under Sections 6 and 7
below.
(C)
The foregoing Release does not include, and does not release or in
any way diminish or reduce, any and all rights (including but not
limited to rights to indemnification) that Employee may currently
have or may have ever had under any of Employer’s insurance
policies, including but not limited to D&O insurance policies,
under Employer’s Bylaws, Certificate of Incorporation or
other corporate documents with
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respect to any such
rights, or under Massachusetts, Delaware or any other applicable
statute, law, ordinance, or regulation. Employee’s
rights under such documents shall survive the execution of this
Agreement, subject to the terms of such documents and applicable
law. Furthermore, nothing in this General Release or anywhere
else in this Agreement is intended to nor shall it limit in any way
Employee’s right and ability to bring Claims solely against
any insurance company for denial of coverage under any such policy
that may provide such coverage to Employee. To the extent
Employee has a dispute with any insurance company concerning
coverage under any of the Employer’s insurance policies,
Employer shall provide Employee with all reasonable requested
information relevant to the dispute ( e.g ., provide copies
of applicable policies, answer reasonable questions concerning
communications with the insurer), and shall not do anything to
unnecessarily or unreasonably undercut Employee’s effort to
obtain coverage.
(D)
The foregoing Release does not include, and does not release or in
any way diminish or reduce, the rights reserved to Employee under
Sections 20(A)-(D), inclusive, below.
3.
Employee Representations; Covenant Not to Sue .
Employee hereby represents and warrants to Employer that Employee
has not: (i) filed, caused or permitted to be filed any
pending proceeding (nor has Employee lodged a complaint with any
governmental or quasi-governmental authority) against Company, nor
has Employee agreed to do any of the foregoing; (ii) assigned,
transferred, sold, encumbered, pledged, hypothecated, mortgaged,
distributed, or otherwise disposed of or conveyed to any third
party any right or Claim against Company that has been released in
this Agreement; or (iii) directly or indirectly assisted any
third party in filing, causing or assisting to be filed, any Claim
against Company. In addition, Employee represents and
warrants that Employee shall not encourage or solicit or
voluntarily assist or participate in any way in the filing,
reporting or prosecution by herself or any third party of a
proceeding or Claim against Company, except as permitted under
Sections 2 and 20 of this Agreement.
4.
Company Release of Employee. As additional
consideration for Employee’s execution, delivery and
non-revocation of this Agreement, the Company hereby
unconditionally and irrevocably releases, waives, discharges and
gives up any and all Company Claims (as defined below) that the
Company may have against Employee arising on or prior to the date
of the Company’s execution and delivery of this Separation
Agreement to Employee. “ Company Claims ”
means any and all actions, charges, controversies, demands, causes
of action, suits, rights, and/or claims whatsoever that the Company
may have against Employee arising out of: (i) Employee’s
employment with, or position as an officer, director or employee of
the Company or the termination of Employee’s employment with,
or position as an officer, director or employee of the Company; or
(ii) by reason of any other matter, cause, or thing whatsoever
from the date of Employee’s employment with Company to the
date this Agreement is executed by Company and delivered to
Employee, whether any or all of the foregoing Company Claims arise
directly or indirectly from any act or omission, whether
intentional or unintentional. This Section 4 releases
all Company Claims including those of which Company is not aware
and those not mentioned in this Agreement up to the date of
Company’s execution and delivery of this Agreement
to
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Employee.
Notwithstanding the foregoing, nothing in this Section 4
shall be deemed to release Employee from (i) Employee’s
obligations under the sections of the Employment Agreement
incorporated into this Agreement as set forth in Section 11
below, (ii) actions and claims by the Company against Employee
for contribution and/or indemnification of any action or claim
brought by any third party person arising out of Employee’s
willful misconduct or gross negligence while employed by, or
serving as an officer or director of, the Company, or
(iii) actions or claims by the Company to enforce the terms of
this Agreement.
5.
Company Representations; Covenant Not to Sue. Company hereby
represents and warrants to Employee that Company has not:
(i) filed, caused or permitted to be filed any pending
proceeding (nor has Company lodged a complaint with any
governmental or quasi-governmental authority) against Employee, nor
has Company agreed to do any of the foregoing; (ii) assigned,
transferred, sold, encumbered, pledged, hypothecated, mortgaged,
distributed, or otherwise disposed of or conveyed to any third
party any right or Company Claim against Employee that has been
released in this Agreement; or (iii) directly or indirectly
assisted any third party in filing, causing or assisting to be
filed, any Company Claim against Employee. In addition,
Company represents and warrants that Company shall not encourage or
solicit or voluntarily assist or participate in any way in the
filing, reporting or prosecution by itself or any third party of a
proceeding or Company Claim against Employee, except as permitted
under Section 4 of this Agreement.
6.
Severance Payments and Benefits . As good
consideration for Employee’s execution, delivery, and
non-revocation of this Agreement, Employer shall:
(A)
Pay to Employee a lump sum cash payment in the amount of
$1,323,203, plus interest in the amount of $10,784.10 and any
Gross-Up Payment to which Employee may be entitled pursuant to
Section 6.f.(ii) and (iii) of the Employment
Agreement (the “ Severance Payment ”), which
Severance Payment is earned and payable as of the date
hereof. The Severance Payment shall be made on
November 8, 2008, which is the day that i
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