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EXHIBIT 10.1
SEPARATION AGREEMENT AND
GENERAL RELEASE OF ALL CLAIMS
This Separation Agreement and General Release (the "Agreement")
is made between Joseph E. Cross and Nanophase Technologies
Corporation ("NTC").
Whereas, since December 1998, Mr. Cross has served as
President and Chief Executive Officer of NTC pursuant to agreements
most recently including that certain Employment Agreement between
Mr. Cross and NTC dated and effective as of November 9,
1999, as amended ("Employment Agreement"); and
Whereas, Mr. Crass resigned his employment with NTC
effective August 13, 2008; and
Whereas, Mr. Cross and NTC wish both to provide for an
orderly transition that serves their mutual interests, and to
resolve any past, present or future disputes between them.
Now, therefore, in consideration of the release, covenants,
representations and obligations stated below, Mr. Cross and
NTC agree as follows:
1. Separation Benefits . Subject to Mr. Cross
complying with all his obligations under Paragraphs 2, 3, 5, 7, 8,
9 and 11 of this Agreement, NTC will provide him with the following
benefits (collectively, the "Separation Benefits"):
A. Severance Pay, in the aggregate gross amount of $366,923.07,
subject to tax, withholding and all other required deductions, paid
in twenty-six equal bi-weekly installments of $14,112.43 each. The
preceding installments shall begin on NTC’s first regular
payday for salaried employees that occurs five days after the end
of the "Revocation Period" (as defined in Paragraph 3.E of this
Agreement), provided that NTC, in its discretion, may accelerate
any or all installments of the Severance Pay.
B. Notice Pay, in the aggregate gross amount of $29,589.04,
subject to tax, withholding and all other required deductions, paid
in full on NTC’s first regular payday for salaried employees
that occurs five days after the end of the Revocation Period.
C. If Mr. Cross and his dependents elect to continue
participating in NTC’s group health insurance plan (the
"Plan") through COBRA, NTC will pay the monthly insurance premiums
for such participation by Mr. Cross and his dependants for so
long as the Severance Pay continues, provided that:
(i) Mr. Cross and his dependants remain eligible to
participate in the Plan, subject to all the terms and conditions of
the Plan as may be in effect from time to time; and
(ii) Mr. Cross pays a bi-weekly contribution of $169.00
toward the cost of the premiums for COBRA coverage under the Plan.
In the absence of Mr. Cross and his dependants electing to
continue participating in NTC’s Plan through COBRA, coverage
of Mr. Cross and his dependants under the Plan will end on
August 31, 2008.
D. NTC will pay to the aggregate gross amount of $10,000,
subject to tax, withholding and all other required deductions, for
outplacement services provided to, and outplacement expenses
incurred by, Mr. Cross. This amount will be paid in full on
NTC’s first regular payday for salaried employees that occurs
five days after the end of the Revocation Period.
E. All unvested stock options previously granted
to Mr. Cross will become fully vested and will become
immediately exercisable, with such exercise continuing to be
governed by all the terms and conditions of the respective grant
instruments and the applicable stock option or equity compensation
plan under which such options were awarded to Mr. Cross,
provided that Mr. Cross shall have until August 13, 2009
to exercise any or all such stock options. All unexercised
previously vested stock options that have been granted to
Mr. Cross will continued to be governed by all the terms and
conditions of the respective grant instruments and the applicable
stock option or equity compensation plan under which such options
were awarded to Mr. Cross, provided that Mr. Cross shall
have until August 13, 2009 to exercise any or all such stock
options.
F. NTC will not contest any claim for unemployment insurance
benefits that Mr. Cross may file with the Illinois Department
of Employment Security by September 15, 2008.
G. Mr. Cross acknowledges that NTC has made no
representations to him concerning the tax consequences, if any, of
the Separation Benefits to be provided to Mr. Cross under
Paragraph 1 of this Agreement.
2. General Release . In consideration of the
preceding Separation Benefits provided by NTC to Mr. Cross,
which Separation Benefits are hereby acknowledged by Mr. Cross
to be sufficient, just and adequate, Mr. Cross, for himself
and his heirs, executors, administrators, legal representatives,
agents, attorneys, successors and assigns, irrevocably and
unconditionally hereby releases and forever discharges NTC, all its
respective officers, directors, shareholders, predecessors,
successors, affiliates, employees, insurers, benefit plans, equity
compensation plans, legal representatives, agents, attorneys and
assigns, of and from any and all administrative, judicial or other
claims, actions, charges, suits, debts, dues, accounts, contracts,
plans, controversies, agreements, promises, representations,
warranties, damages and judgments, in law or equity, which
Mr. Cross had, has or may hereafter have, whether known or
unknown, from the beginning of time through the date Mr. Cross
signs this Agreement, arising out of, relating to, or in any manner
connected with any of the following:
A. All matters relating to Mr. Cross’ employment
with, or termination as an officer, director and employee of,
NTC.
B. All rights or claims to any compensation or benefits from NTC
(specifically including any claim for severance pay or notice pay
as provided under Sections 6(b) and 7(b) of the Employment
Agreement), except as otherwise expressly provided in this
Agreement.
C. All suit
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