AGREEMENT AND RELEASERelease Agreement |
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Exhibit
10.1
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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.
2
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.
3
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 Agreement, either directly or indirectly, solicit any person or
entity who is retained by the Company as a consultant or advisor (or who
was so
retained by the Company within six months of the Termination Date) in connection
with any Competitive Business. As used herein the term “Competitive
Business”
shall
mean the manufacture, development and/or distribution of sensor devices to
detect e. coli and salmonella. The Company agrees that the foregoing definition
of the term “Competitive Business” shall supersede the definition of such term
as provided in Section 6.3 of the Employment Agreement.
12. Assignment
of Work Product:
Employee
further acknowledges and agrees that the provisions of Section
6.2
of the
Employment Agreement (“Assignment
of Inventions”)
shall
remain in full force and effect and Employee acknowledges, and hereby reaffirms
his agreement to perform, his obligations thereunder.
13. No
Disparagement:
Employee
agrees that commencing on the Execution Date and for a period of three years
thereafter, Employee shall not make any negative or derogatory statements
in
verbal, written, electronic or any other form about the Company, or its
officers, employees and directors including, but not limited to, a negative
or
derogatory statement made in, or in connection with, any article or book,
on a
website, in a chat room or via the internet. The Company agrees not to issue,
and will advise its executive officers and directors not to make, any negative
or derogatory statements in verbal, written, electronic or any other form
about
Employee during the three-year period described in the first sentence of
this
paragraph.
