AGREEMENT AND RELEASE
CONSULT WITH AN ATTORNEY BEFORE SIGNING THIS AGREEMENT AND RELEASE.
BY SIGNING THIS AGREEMENT AND RELEASE, YOU GIVE UP AND WAIVE
IMPORTANT LEGAL RIGHTS.
This
is an agreement and release (the “
Agreement ”)
between NanoSensors, Inc., its stockholders (solely in their
capacity as stockholders of NanoSensors, Inc.), affiliates,
divisions, successors and assigns, their respective past and
present officers, directors, employees, agents, attorneys, whether
as individuals or in their official capacity, and each of their
respective successors and assigns (hereinafter collectively
referred to as “
NanoSensors ”
or the “
Company ”)
and by his own free will, Ted L. Wong (“
Wong ”
or “
Employee ”).
As used herein, the term “
Execution Date ”
shall mean the later of the two dates on which this Agreement has
been executed by Employee and NanoSensors, as specified on the
signature page of this Agreement.
WHEREAS ,
Wong has been an employee of NanoSensors and has served as its
Chief Executive Officer, President and Chief Financial Officer,
and
WHEREAS ,
Wong has been employed pursuant to a written employment agreement
dated as of August 3, 2006 (the “
Employment Agreement ”);
and
WHEREAS ,
Employee and NanoSensors each desire an amicable cessation of the
employment relationship,
NOW, THEREFORE ,
in consideration of the covenants and promises contained herein and
for other good and valuable consideration, receipt of which is
hereby acknowledged, Employee and NanoSensors (who hereinafter
collectively may be referred to as the “
Parties ”)
hereby agree as follows:
1.
Termination of Employment; Resignation from Board:
Employee
acknowledges and agrees that effective the close of business on
August 31, 2007 (the “
Termination Date ”),
Employee’s employment in all capacities with the Company is
terminated and the Employment Agreement is terminated effective as
of the Termination Date. Further, effective on the Termination
Date, Employee hereby resigns as Chairman of the Board of Directors
of the Company.
2.
Severance Payment: In
consideration for Employee’s execution of this Agreement, and
in consideration for the release of claims against NanoSensors, the
Company will pay or provide to Employee the following:
a. Solely
for the purpose of determining the benefits under
Section 2.3 of
the Employment Agreement, Employee’s termination shall be
deemed a termination without cause within the contemplation of such
section of the Employment Agreement.
b. An
aggregate amount of Seventy-Two Thousand and 00/100 ($72,000.00)
Dollars (the “
Severance Payment ”),
payable in equal and consecutive and monthly installments over a
period of six months on each of the Company’s regular pay
dates for executives, commencing on the first regular executive pay
date following the Termination Date, but in no event prior to the
expiration of the seven-day revocation period (the
“Revocation Period” )
described on the signature page of this Agreement.
c. In
accordance with
Section 5.9 of
the Employment Agreement, the conditions to the vesting of any
unvested and outstanding stock options granted to the Employee
under any of the Company’s stock option plans, shall be
deemed fully satisfied and all such incentive awards shall be
immediately and fully vested as of the Termination Date. In
addition, the terms of all outstanding stock options held by
Employee as of the Termination Date shall be deemed amended to
provide that the awards shall remain exercisable for a period of
two years following the Termination Date. Attached as
Exhibit “A” is
a list of options covered by this provision.
d. In
further consideration of Employee’s services to the Company
during the term of the Employment Agreement, the Company agrees to
issue to Employee such number of shares of the Company’s
common stock with a fair market value equal to $6,250 on the
Termination Date. The Company shall cause such additional shares of
common stock to be issued to the Employee (to the address specified
in Section 25 of this Agreement) on the first business day
following the expiration of the Revocation Period. No other bonus
or additional amount shall be due or owing by the Company to
Employee. As used herein, the term “fair market value”
shall mean the average of the closing price of the Company’s
common stock as reported on the OTC Bulletin Board for the five (5)
trading days prior to the date of determination of fair market
value.
e. The
Company agrees that Employee shall be entitled to retain the
following items of company property which currently in the
Company’s leased premises located at 1800 Wyatt Drive, Suite
# 2, Santa Clara, California: one laptop computer, telephone
hardware, printer, facsimile machine and the furniture and filing
cabinets presently located on the premises. Company will allow
Employee to retain the laptop computer after the Termination Date
only upon the Company’s satisfaction that Employee has
deleted and permanently purged all Company related files and data
from such laptop computer (Employee agrees that the Company
reserves the right to inspect such laptop computer to ensure
compliance with this requirement).Other than the foregoing,
Employee shall comply with the provisions of
Section 21 of
this Agreement and return to the Company all other Company property
in his possession or custody or under his control.
f. Employee
agrees and acknowledges that the Company’s payment of the
compensation described in
Sections 2(a) - 2(e) of
this Agreement is in lieu of all other compensation to which
Employee may have been entitled pursuant to the Employment
Agreement.
3.
Benefits: On
the first regular executive pay date following the Termination
Date, the Company shall pay the Employee an amount of Five Thousand
One Hundred Twenty Five and 00/100 ($5,125). Dollars for unused
vacation time in accordance with the Company’s current
policy. Except as provided in the immediately preceding sentence,
effective as of the Termination Date, (i) the Company shall have no
obligation to continue Employee’s enrollment or participation
in any benefit plans or programs and (ii) Employee shall not be
entitled to participate in any Company benefit programs, receive
any amounts under any Company benefit programs or otherwise receive
any further benefits.
4.
Expense
Reimbursement: To
the extent Employee has unreimbursed business expenses,
incurred through the Termination Date, Employee must promptly
submit the expenses with all appropriate documentation; those
expenses which meet the Company’s guidelines will be
reimbursed. Any expense account that Employee has with the
Company terminates effective on the Termination Date, and any
expenses already incurred will be reviewed and processed in
accordance with the policies and procedures of the Company. No
new expenses may be incurred after the Termination Date.
Employee agrees to promptly pay any outstanding balance on
these accounts that represent non-reimbursable expenses.
Company will pay accepted expenses within twenty (20) business
days from the Termination Date, in accordance with the
Company’s expense reimbursement guidelines existing as
of the Execution Date.
Employee
hereby represents that (i) he has not incurred any
reimbursable expenses subsequent to the Termination Date and
(ii) as of the Termination Date he has provided the Company
with appropriately detailed reports covering all reimbursable
expenditures incurred up to the Termination Date.
5.
No
Admission: Employee
understands that this Agreement does not constitute an
admission by the Company of any liability, error or omission,
including without limitation, any: (a) violation of any
statute, law, or regulation; (b) breach of contract, actual or
implied; or (c) commission of any tort.
6.
Acknowledgement:
Employee
acknowledges that the consideration provided in this Agreement
under Sections 2(a), 2(d) and 2(e) exceed that to which
Employee would otherwise be entitled under the normal
operation of any benefit plan, policy or procedure of the
Company or under any previous agreement (written or oral)
between the Parties. Employee further acknowledges that the
agreement by NanoSensors to provide the Severance Payment and
the consideration pursuant to this Agreement beyond
Employee’s entitlement is conditioned upon
Employee’s release of all claims against NanoSensors and
Employee’s compliance with all the terms and conditions
of this Agreement.
7.
No
Other Payments: The
Parties agree that, except as provided for herein, there shall
be no other payments or benefits payable to Employee,
including but not limited to, salary, bonuses, fees,
commissions and/or other payments.
8.
Arbitration:
a. The
Parties specifically, knowingly and voluntarily agree to arbitrate
any claim, controversy or dispute which has arisen or should arise
in connection with Employee’s employment, the cessation of
Employee’s employment, or in any way related to the terms of
this Agreement. The Parties agree to arbitrate any and all such
controversies, disputes, and claims before a single arbitrator in
the State of California in accordance with the Rules of the
American Arbitration Association. The arbitrator shall be selected
by the Association and shall be an attorney-at-law experienced in
the field of corporate law and admitted to practice in the State of
California. The arbitration shall occur in the Association’s
office closes to the Company’s headquarters. In the course of
any arbitration pursuant to this Agreement, the Parties agree (i)
to request that a written award be issued by the arbitrator and
(ii) that each side is entitled to receive any and all relief it
would be entitled to receive in a court proceeding. The Parties
knowingly and voluntarily agree to enter into this arbitration
clause and, except for claims contemplated in
Section 8(b) below,
waive any rights that might otherwise exist to request a jury trial
or other court proceeding. This paragraph is intended to be both a
post-dispute and pre-dispute arbitration clause. Any judgment upon
any arbitration award may be entered in any court, federal or
state, having competent jurisdiction of the Parties. The
Parties’ agreement to arbitrate disputes includes, but is not
limited to, any claims of unlawful discrimination and/or unlawful
harassment under Title VII of the Civil Rights Act of 1964, as
amended, the Age Discrimination in Employment Act 1967, as amended,
the Americans with Disabilities Act, and any other federal, state
or local law relating to discrimination in employment and any
claims relating to wage and hour claims and any other statutory or
common law claims.
b. Notwithstanding
the foregoing, Employee acknowledges and agrees that the breach by
Employee of the non-disparagement, confidentiality,
non-competition, assignment or cooperation obligations (as provided
by
Sections 9 - 15 and 20 of
this Agreement) will cause the Company irreparable injury not
compensable by money damages and therefore, the Company will not
have an adequate remedy at law. Accordingly, the Company may
commence a proceeding for equitable relief in any court of
competent jurisdiction to enforce such rights. If the Company
institutes an action or proceeding to enforce such obligations, it
shall be entitled to injunctive or other equitable relief to
prevent or curtail any such breach, threatened or
actual.
9.
Confidential
Treatment: Employee
and NanoSensors agree that the terms and existence of this
Agreement are and shall remain confidential and agrees not to
disclose any terms or provisions of this Agreement, or to talk
or write about the negotiation, execution or implementation of
this Agreement, without the prior written consent of the
other, except (a) as required by law or by regulatory
authorities, including as may be required under the Securities
Exchange Act of 1934, as amended, and the rules and
regulations of the U.S. Securities and Exchange Commission
promulgated thereunder; (b) as required within NanoSensors to
process this Agreement; or (c) in connection with any
arbitration or litigation arising out of this Agreement.
Anything herein to the contrary notwithstanding, Employee may
disclose the terms of this Agreement to Employee’s
immediate family, accountant or attorney, provided they are
made aware of and agree to the confidentiality
provisions.
10.
Proprietary
Information: Employee
further acknowledges and agrees that the provisions of
Section 6.1 of
the Employment Agreement (
“Confidential and Proprietary Rights”
)
shall remain in full force and effect and acknowledges his
obligations thereunder not to, without limitation, disclose or use
the Company’s Proprietary Information, as such term is
defined in
Section 6.1 of
the Employment Agreement.
11.
Restrictive
Covenants: Employee
agrees and acknowledges that the restrictive covenants set
forth in
Section 6.3 of
the Employment Agreement remain in full force and effect and the
twelve-month restrictive period contemplated by such section shall
commence on the Termination Date. Further, in addition to the
provisions of
Section 6.3 ,
Employee agrees that in consideration for the payments and other
consideration provided in this Agreement, Employee will not, during
the period of non-competition referred to in
Section 6.3 of
the Employment A
