Exhibit 10.1
SEPARATION AGREEMENT AND
RELEASE
This Separation Agreement and
Release (“ Agreement ”) is made by and
between Gerard A. Wills (“ Employee ”)
and MultiCell Technologies, Inc. (“ Company
”) (collectively referred to as the “
Parties ”):
RECITALS
WHEREAS, Employee provided services
to the Company pursuant to an Employment Offer Letter dated
December 23, 2005 (the “ Offer Letter
”);
WHEREAS, the Company and Employee
have entered into a Stock Option Agreement (the “ Stock
Option Agreement ”) dated January 17, 2006
granting Employee an option to purchase up to 300,000 shares of the
Company’s common stock pursuant to the Company’s 2004
Equity Incentive Plan;
WHEREAS, Employee executed an
Employee Confidentiality and Inventions Assignment Agreement dated
December 23, 2005 (the “ Propriety Information
Agreement ”);
WHEREAS, Employee intends to
terminate his employment with the Company effective as of the date
of this Agreement (the “ Employment Termination
Date ”);
WHEREAS, simultaneously with the
execution of this Agreement, the Company and Employee shall enter
into a Consulting Agreement, in substantially the form attached
hereto as Exhibit A (the “ Consulting
Agreement ”), pursuant to which, among other things,
Employee shall continue to provide services to the Company as an
independent contractor as set forth therein; and
WHEREAS, the Parties wish to resolve
any and all disputes, claims, complaints, grievances, charges,
actions, petitions and demands that the Employee may have against
the Company and any of the Releasees as defined below, including,
but not limited to, any and all claims arising out of, or in any
way related to Employee’s relationship with, or separation as
an employee from, the Company.
NOW THEREFORE, in consideration of
the mutual promises made herein, the Company and Employee hereby
agree as follows:
1. Consideration .
a. Cash .
i. Salary. The Company agrees to pay
Employee all accrued wages and any unused vacation time. This
payment will be made to Employee on the Effective Date of this
Agreement.
ii. Reimbursements. In addition, the
Company agrees to reimburse Employee within ten (10) business
days of receipt by the Company, all expenses properly incurred by
Employee on behalf of the Company through the Effective Date of
this Agreement.
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b. Vesting . The Parties
agree that for purposes of determining the number of shares of the
Company’s common stock that Employee is entitled to purchase
from the Company, pursuant to the exercise of outstanding options,
Employee will be 100% vested in all 300,000 shares of common stock
subject to the Stock Option Agreement. The options will expire and
Employee’s right to exercise such shares therein shall
terminate upon the later of (i) March 30, 2007 and
(ii) 90 days after Employee ceases to be a service provider to
the Company. Employee may not elect to effectuate a cashless
exercise of the options. Other than as set forth herein, the Stock
Option Agreement shall continue to be in full force and
effect.
c. Termination . Other than
as set forth herein and the terms that survive termination, the
Parties hereby mutually terminate the Offer Letter.
d. Benefits .
Employee’s health insurance benefits shall hereby cease upon
the Effective Date, subject to Employee’s right to continue
his health insurance under COBRA. Employee’s participation in
all other benefits and incidents of employment will cease as of the
Effective Date. Employee will cease accruing employee benefits,
including, but not limited to, vacation time and paid time off, as
of the Effective Date.
e. Return of Company Property
. Employee shall return all of the Company’s property and
confidential and proprietary information in his possession to the
Company on the date Employee ceases to be a service provider,
except that Employee may keep any property whose purchase Employee
and the Company have previously agreed upon. The purchase price of
any such property may be deducted from any cash consideration owed
to Employee pursuant to this Section 1.
f. Proprietary Information
Agreement . All of the terms of the Proprietary Information
Agreement that survive termination shall remain in full force and
effect.
2. Consulting Agreement . The
Parties shall enter into the Consulting Agreement upon execution of
this Agreement.
3. Release of Claims .
Employee agrees that the foregoing consideration represents
settlement in full of all outstanding obligations owed to Employee
by the Company and its current and former officers, directors,
employees, agents, investors, attorneys, shareholders,
administrators, affiliates, divisions, subsidiaries, predecessor
and successor corporations and assigns (the “
Releasees ”). Employee, on his own behalf, and
on behalf of his respective heirs, family members, executors,
agents, and assigns, hereby and forever releases the Releasees
from, and agrees not to sue concerning, or in any manner to
institute, prosecute or pursue, any claim, complaint, charge, duty,
obligation or cause of action relating to any matters of any kind,
whether presently known or unknown, suspected or unsuspected, that
Employee may possess against any of the Releasees arising from any
omissions, acts or facts that have occurred up until and including
the Effective Date of this Agreement including, without
limitation,
a. any and all claims relating to or
arising from Employee’s relationship with the Company and the
termination of that relationship;
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b. any and all claims relating to,
or arising from, Employee’s right to purchase, or actual
purchase of shares of stock of the Company, including, without
limitation, any claims for fraud, misrepresentation, breach of
fiduciary duty, breach of duty under applicable state corporate
law, and securities fraud under any state or federal
law;
c. any and all claims for wrongful
discharge of employment; termination in violation of public policy;
discrimination; harassment; retaliation; breach of contract, both
express and implied; breach of a covenant of good faith and fair
dealing, both express and implied; promissory estoppel; negligent
or intentional infliction of emotional distress; fraud; negligent
or intentional misrepresentation; negligent or intentional
interference with contract or prospective economic advantage;
unfair business practices; defamation; libel; slander; negligence;
personal injury; assault; battery; invasion of privacy; false
imprisonment; conversion; workers’ compensation and
disability benefits;
d. any and all claims for violation
of any federal, state or municipal statute, including, but not
limited to, Title VII of the Civil Rights Act of 1964; the
Civil Rights Act of 1991; the Americans with Disabilities Act of
1990; the Fair Labor Standards Act; the Fair Credit Reporting Act;
the Age Discrimination in Employment Act of 1967; the Older Workers
Benefit Protection Act; the Employee Retirement Income Security Act
of 1974; the Worker Adjustment and Retraining Notification Act; the
Family and Medical Leave Act; the Sarbanes-Oxley Act of 2002; the
California Family Rights Act; the
