SEPARATION AGREEMENT AND MUTUAL
RELEASE
This
SEPARATION AGREEMENT AND MUTUAL RELEASE (hereinafter referred
to as the “Agreement” and/or “Separation
Agreement and Mutual Release”) is made and entered into
by and between Timothy Neher (hereinafter referred to as "Mr.
Neher") and Wherify Wireless, Inc. (hereinafter referred to as
"WHERIFY") on the date appearing next to Mr. Neher’s
name on the final page hereof (the “Effective
Date”). (Mr. Neher and WHERIFY are hereinafter
collectively referred to as the
“Parties.”)
RECITALS
A.
Mr. Neher, who is employed by WHERIFY, and WHERIFY have
mutually decided not to enter into an employment contract
extension and he is therefore resigning.
B.
In order to smooth Mr. Neher’s transition and in order
to provide closure for the Parties, WHERIFY desires to provide
Mr. Neher with certain benefits and Mr. Neher desires to
accept such benefits, all on the terms and conditions set
forth below.
NOW,
THEREFORE, in consideration of the premises and promises
herein contained, the adequacy and receipt of which are hereby
acknowledged by both Parties, the Parties agree as
follows:
AGREEMENTS
1.
Resignation :
Mr. Neher hereby resigns his employment as of the Effective Date
and thereafter shall cease to hold any office or title at WHERIFY.
In addition, he hereby acknowledges that the agreement covers all
compensation, including vacation, earned by him during his
employment with WHERIFY. Mr. Neher also acknowledges that he
remains subject to all SEC laws and regulations, including but not
limited to section 144, regarding his ownership in
WHERIFY.
2.
Monetary Separation Benefits From WHERIFY
: In
consideration for Mr. Neher’s signing and complying with this
Agreement, WHERIFY shall:
(a)
Pay
to Mr. Neher continuation pay in the amount of $282,000
(“the Amount”) through normal payroll processing
such that the Amount shall be paid in twenty-six (26) payments
in the gross amount of $10,846, payable every two weeks
beginning November 23, 2007 and ending November 14, 2008,
subject to regular payroll deductions and withholding;
provided ,
however ,
that if WHERIFY has more than $2,500,000 cash in company bank
accounts , Mr. Neher will receive any then-remaining payments on an
accelerated basis.
(b)
Reimburse
Mr. Neher, to the same extent as for employees, for any
premiums paid by him through December 31, 2008, to continue
his WHERIFY employee medical benefits pursuant to the laws
known as COBRA and/or Cal-COBRA.
(c)
Mr.
Neher may retain the personal computer provided to him by
WHERIFY.
d)
Notwithstanding
the terms of any award or granting agreement or instrument,
Mr. Neher shall have ninety (90) days from the date of
the last payment of this agreement to exercise any and all
Vested Options .
Mr.
Neher acknowledges that it is his intent and understanding
that he is entitled to no additional severance or separation
benefits other than as expressly provided for in this
Agreement.
3.
Taxes
: Mr.
Neher acknowledges and agrees that WHERIFY has made no
representations to him regarding the tax consequences of any
amounts or benefits received by his pursuant to this Agreement. Mr.
Neher also acknowledges that he is solely responsible for payment
of all taxes, state, federal and/or local, if any, for which he may
be liable on the amounts or benefits he receives pursuant to this
Agreement. He also agrees to indemnify and hold harmless WHERIFY,
and all of its employees, principals and agents, from and against
any and all loss, cost, damage, or expense, including, but not
limited to, attorney’s fees incurred by any of them, arising
out of his failure to pay the taxes, if any, for which he is
liable.
4.
Mutual Release Of Claims
:
(a)
As
a material inducement to Mr. Neher to enter into this
Agreement, WHERIFY (on behalf of itself, its successors, and
assigns) hereby releases and forever discharges Mr. Neher and
his heirs, assigns, representatives, attorneys, insurers, and
all persons or entities acting by, through, under or in
concert with any of them, of and from any and all liabilities,
claims, obligations, promises, agreements, demands, damages,
actions, charges, complaints, costs, losses, debts and
expenses (including attorney’s fees and costs actually
incurred), and causes of action of every kind, known or
unknown, disclosed or undisclosed, matured or unmatured, which
WHERIFY may have now or in the future arising from any act or
omission or condition arising prior to its signing this
Agreement, including, but not limited to, all claims under
state, federal, or common law, whether based in contract,
tort, statute or otherwise, and including, but not limited to,
claims in any way related to Mr. Neher's employment by WHERIFY
or the termination of such employment; provided, however, that
this Separation Agreement and Mutual Release does not release
any claims that cannot lawfully be released by this Agreement,
and does not impact any right that it may have pursuant to any
WHERIFY benefit plan, including any stock option
plan.
(b)
As
a material inducement to WHERIFY to enter into this Agreement,
Mr. Neher (on behalf of himself, his heirs, and assigns)
hereby releases and forever discharges WHERIFY and its former,
current, and future owners, officers, directors, trustees,
employees, agents, assigns, representatives, attorneys,
insurers, and all persons or entities acting by, through,
under or in concert with any of them (collectively
“Releases”), of and from any and all liabilities,
claims, obligations, promises, agreements, demands, damages,
actions, charges, complaints, costs, losses, debts and
expenses (including attorney’s fees and costs actually
incurred), and causes of action of every kind, known or
unknown, disclosed or undisclosed, matured or unmatured, which
Mr. Neher may have now or in the future arising from any act
or omission or condition arising prior to his signing this
Agreement, including, but not limited to, all claims under
state, federal, or common law, whether based in contract,
tort, statute or otherwise, and including, but not limited to,
claims of discrimination and claims in any way related to Mr.
Neher's employment by WHERIFY or the termination of such
employment. Notwithstanding the foregoing, this Separation
Agreement and Mutual Release does not release any claims that
cannot lawfully be released by this Agreement,
and
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