Exhibit 10.1
SEPARATION AGREEMENT AND
GENERAL RELEASE OF ALL
CLAIMS
This Separation Agreement and
General Release (the “Agreement”) is made between
Richard W. Brotzman, Jr. and Nanophase Technologies Corporation
(“NTC”).
Whereas, since September 26,
2001, Dr. Brotzman has served as an officer of NTC, most
recently in the position of Chief Technology Officer, pursuant to
that certain Employment Agreement between Dr. Brotzman and NTC
dated and effective as of September 26, 2001, as amended
(“Employment Agreement”); and
Whereas, Dr. Brotzman’s
employment with NTC will conclude effective February 28, 2009;
and
Whereas, Dr. Brotzman 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, Dr. Brotzman and NTC agree as follows:
1. Separation Benefits
. Subject to Dr. Brotzman 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 $107,299 (equivalent to 27 weeks of
Dr. Brotzman's annual base salary in effect on
February 28, 2009), subject to tax, withholding and all other
required deductions, paid in twelve equal bi-weekly installments of
$8,941.58 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 $6,227.81 (equivalent to 11 days of pay at the per
diem rate of Dr. Brotzman's annual base salary on
February 28, 2009, with 19 days of Notice Pay being paid to
Dr. Brotzman 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 Dr. Brotzman 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 Dr. Brotzman and
his dependants for so long as the Severance Pay continues, provided
that: (i) Dr. Brotzman 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) Dr. Brotzman pays a bi-weekly contribution of
$180.00 toward the cost of the premiums for COBRA coverage under
the Plan. In the absence of Dr. Brotzman and his dependants
electing to continue
participating in NTC's Plan through
COBRA, coverage of Dr. Brotzman and his dependants under the
Plan will end on February 28, 2009.
D. All unvested stock options
previously granted to Dr. Brotzman 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
Dr. Brotzman, provided that Dr. Brotzman 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 Dr. Brotzman 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 Dr. Brotzman, provided that
Dr. Brotzman 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 Dr. Brotzman may file
with the Illinois Department of Employment Security by
March 16, 2009.
F. Dr. Brotzman acknowledges
that NTC has made no representations to him concerning the tax
consequences, if any, of the Separation Benefits to be provided to
Dr. Brotzman under Paragraph 1 of this Agreement.
2. General Release .
In consideration of the preceding Separation Benefits provided by
NTC to Dr. Brotzman, which Separation Benefits are hereby
acknowledged by Dr. Brotzman to be sufficient, just and
adequate, Dr. Brotzman, 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 Dr. Brotzman
had, has or may hereafter have, whether known or unknown, from the
beginning of time through the date Dr. Brotzman signs this
Agreement, arising out of, relating to, or in any manner connected
with any of the following:
A. All matters relating to
Dr. Brotzman’ 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 3, 7(b)
and 8(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
2
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
