Exhibit 10.1
SEPARATION AGREEMENT
AND
GENERAL RELEASE OF ALL
CLAIMS
This Separation Agreement and
General Release (the “Agreement”) is made between Kevin
J. Wenta and Nanophase Technologies Corporation
(“NTC”).
Whereas, since January 8, 2007,
Mr. Wenta has served as Executive Vice President, Sales and
Marketing of NTC pursuant to that certain Employment Agreement
between Mr. Wenta and NTC dated and effective as of
January 8, 2007 (“Employment Agreement”);
and
Whereas, Mr. Wenta’
employment with NTC concluded effective August 13,2008;
and
Whereas, Mr. Wenta 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. Wenta and NTC agree as follows:
1. Separation Benefits
. Subject to Mr. Wenta complying with all his obligations
under Paragraphs 2, 3, 4, 6, 7, 8 and 10 of this Agreement, NTC
will provide him with the following benefits (collectively, the
“Separation Benefits”):
A. Severance Pay, in the aggregate
gross amount of $281,003.21 (contractual severance pay of $282,000,
less $996.79 that Mr. Wenta owes to NTC for net amount of
expense reimbursement overpayment), subject to tax, withholding and
all other required deductions, paid in twenty-six equal bi-weekly
installments of $10,850 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 $34,767, 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. Wenta 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. Wenta and his dependants for so long as the Severance Pay
continues, provided that: (i) Mr. Wenta 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. Wenta 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. Wenta and his
dependants electing to continue participating in NTC’s Plan
through COBRA, coverage of Mr. Wenta and his dependants under
the Plan will end on August 31, 2008.
D. NTC will pay up to $10,000 for
outplacement services provided to Mr. Wenta by Kensington
International (“Kensington,”), provided that:
(i) such payments are
made directly to Kensington by NTC
and supported by invoices from Kensington; and (ii) the
invoices reflect that Kensington began providing its outplacement
services to Mr. Wenta by September 15, 2008.
E. All unvested stock options
previously granted to Mr. Wenta 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. Wenta, provided that Mr. Wenta 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. Wenta 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. Wenta, provided that
Mr. Wenta 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. Wenta may file
with the Illinois Department of Employment Security by September
15, 2008.
G. Mr. Wenta acknowledges that
NTC has made no representations to him concerning the tax
consequences, if any, of the Separation Benefits to be provided to
Mr. Wenta under Paragraph I of this Agreement.
2. General Release .
In consideration of the preceding Separation Benefits provided by
NTC to Mr. Wenta, which Separation Benefits are hereby
acknowledged by Mr. Wenta to be sufficient, just and adequate,
Mr. Wenta, 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. Wenta had,
has or may hereafter have, whether known or unknown, from the
beginning of time through the date Mr. Wenta signs this
Agreement, arising out of, relating to, or in any manner connected
with any of the following:
A. All matters relating to
Mr. Wenta’ empl
