Exhibit 10.2
SEPARATION AGREEMENT AND
GENERAL RELEASE OF ALL
CLAIMS
This Separation Agreement and
General Release (the “Agreement”) is made between
Robert W. Haines and Nanophase Technologies Corporation
(“NTC”).
Whereas, since January 22,
2001, Mr. Haines has served as Vice-President, Operations
pursuant to that certain Employment Agreement between
Mr. Haines and NTC with a term beginning on January 22,
2001, as amended (“Employment Agreement”);
and
Whereas, Mr. Haines’
employment with NTC will conclude effective February 28, 2009;
and
Whereas, Mr. Haines 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. Haines and NTC agree as follows:
1. Separation Benefits
. Subject to Mr. Haines 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 $237,408.76 (equivalent to 53 weeks of
Mr. Haines’ annual base salary in effect on
February 28, 2009), subject to tax, withholding and all other
required deductions, paid in twenty-six equal bi-weekly
installments of $9,131.08 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 $7,021.91 (equivalent to 11 days of pay at the per
diem rate of Mr. Haines’ annual base salary in effect on
February 28, 2009, with 19 days of Notice Pay being paid to
Mr. Haines during the period from February 9 through
February 28, 2009), 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. Haines 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. Haines and his dependants for so long as the Severance Pay
continues, provided that: (i) Mr. Haines 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. Haines pays a bi-weekly
contribution of $180.00 toward the cost of the premiums for COBRA
coverage under the Plan. In the absence of Mr. Haines and his
dependants electing to continue participating in NTC’s Plan
through COBRA, coverage of Mr. Haines and his dependants under
the Plan will end on February 28, 2009.
D. All unvested stock options
previously granted to Mr. Haines 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. Haines, provided that Mr. Haines shall have until
May 28, 2009 to exercise any or all such stock options. All
unexercised previously vested stock options that have been granted
to Mr. Haines will continue 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. Haines, provided that
Mr. Haines shall have until May 28, 2009 to exercise any
or all such stock options.
E. NTC will not contest any claim
for unemployment insurance benefits that Mr. Haines may file
with the Illinois Department of Employment Security by
March 16, 2009.
F. Mr. Haines acknowledges that
NTC has made no representations to him concerning the tax
consequences, if any, of the Separation Benefits to be provided to
Mr. Haines under Paragraph 1 of this Agreement.
2. General Release .
In consideration of the preceding Separation Benefits provided by
NTC to Mr. Haines, which Separation Benefits are hereby
acknowledged by Mr. Haines to be sufficient, just and
adequate, Mr. Haines, 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. Haines had,
has or may hereafter have, whether known or unknown, from the
beginning of time through the date Mr. Haines signs this
Agreement, arising out of, relating to, or in any manner connected
with any of the following:
A. All matters relating to
Mr. Haines’ employment with, or termination as an
officer 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 suits, claims, charges or
causes of action arising under or in connection with:
(i) Title VII of the Civil Right Act of 1964 as amended (42
U.S.C. §§ 2000e et seq .), the Civil Rights Acts
of 1991, 1866 and 1871 as amended, the Americans With Disabilities
Act of 1990 as amended (42 U.S.C. §§ 12101 et seq
.), the National Labor Relations Act as amended (29 U.S.C.
§§ 151 et seq .), the Employee Retirement Income
Security Act of
