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Exhibit 10.1
SEPARATION AND RELEASE AGREEMENT
This
SEPARATION AND RELEASE AGREEMENT (this
“Agreement”) is made and entered into as of the date
set forth below, by and between Bennet P. Tchaikovsky
(“Tchaikovsky”) and Innovative Card Technologies, Inc.
(“Company”). Tchaikovsky and the Company may be
collectively referred to hereafter as the “Parties” or
individually as the “Party.”
WHEREAS ,
Tchaikovsky has been employed by the Company since July 6,
2004;
WHEREAS ,
Company and Tchaikovsky mutually desire to end Tchaikovsky ’s
employment with Company; and
WHEREAS ,
Tchaikovsky and Company further desire to settle fully and finally
all differences between them, including, but in no way limited to,
any difference arising out of Tchaikovsky ’s employment with
Company and the termination thereof;
NOW, THEREFORE ,
in consideration of the premises and mutual promises herein
contained, the parties hereby agree as follows:
1.
Tchaikovsky
acknowledges and agrees that his employment with the Company
shall be terminated effective on the date of Tchaikovsky
‘s signature on this agreement (the “Termination
Date”). From the Termination Date, Tchaikovsky
acknowledges he shall no longer be included as an insured
person or as a Company employee under the Company’s
insurance policies.
2.
Tchaikovsky
acknowledges and agrees that the following constitutes the
entire amounts owed by Company to Tchaikovsky as of the
Termination Date:
Regular
Pay: $4,401.04 gross amount, less amounts required to be
withheld by law or authorized by Tchaikovsky to be
withheld.
Accrued
Vacation: $2,626,34 gross amount, less amounts required to be
withheld by law or authorized by Tchaikovsky to be
withheld.
3.
In
exchange for Tchaikovsky’s release of the Company from
any past and future obligations (if any), whether monetary or
otherwise, allegedly owed by the Company to Tchaikovsky
based
upon Tchaikovsky
’s
employment (as delineated in Section 7 below),
Company
has agreed to immediately vest Tchaikovsky in the remainder of
Tchaikovsky’s 60,000 unvested options. However,
Tchaikovsky acknowledges and agrees that he may not trade any
shares of common stock of the Company presently held by
Tchaikovsky, including, but not limited to common stock
underlying any and all options and warrants held by
Tchaikovsky, for a period of 90 (ninety) days from the
Termination Date. As further consideration for
Tchaikovsky
’s
release, Tchaikovsky
will
be entitled to keep the computer and related accessories
issued to him by the Company. Additionally, the 90-day
termination provision for the 150,000 options previously
granted to Tchaikovsky is hereby waived by the
Company.
4.
Subject
to any other agreements
with
the Company, Tchaikovsky shall be entitled to such
continuation of health care coverage as is required under, and
subject to, applicable law, of which Tchaikovsky has been
notified in writing, provided Tchaikovsky timely exercises
Tchaikovsky ’s rights in accordance
therewith.
5.
Tchaikovsky
must turn over to Company all files, memoranda, records,
credit cards and other documents and physical or personal
property that Tchaikovsky received from Company and that are
the property of Company, unless expressly provided for or
consented to otherwise by the Company.
6.
Tchaikovsky
understands and agrees that in the course of employment with
Company, Tchaikovsky may have acquired and/or had access to
confidential information, including trade secrets, proprietary
data and/or non-public information concerning the business,
professional and/or personal affairs, activities and
operations of Company. Tchaikovsky will not divulge any such
information. In addition, Tchaikovsky agrees to continue to
honor all confidentiality commitments of Company known to him
to any third parties. The obligations of this paragraph
not to disclose the Information shall not apply to the extent
that Tchaikovsky is required by law to respond to any demand
for the Information from any court, governmental entity or
governmental agency. If Tchaikovsky is required by law
to so respond, Tchaikovsky agrees to provide Company with
prompt notice thereof so that Company may seek a protective
order or other appropriate remedy.
7.
Complete Release by Tchaikovsky
(a)
Waiver of All Claims. Tchaikovsky
agrees that he is not entitled to receive, will not claim and
expressly waives any entitlement to rights, benefits or
compensation from the Company arising out or related to his
employment with the Company, other than as expressly set forth in
this Agreement.
(b)
Release. Tchaikovsky
irrevocably and unconditionally releases all of the claims
described in subsection (c) of this Section 7 that Tchaikovsky may
now have against the following persons or entities (the
“Releasees”): the Company, all of its past and present
employees, officers, directors, stockholders, owners,
representatives, assigns, attorneys, agents, insurers, employee
benefit programs (and the trustees, administrators, fiduciaries and
insurers of such programs) and any other persons acting by,
through, under or in concert with any of the persons or entities
listed in this subsection.
(c)
Claims Released. The
claims released include all claims, promises, debts, causes of
action or similar rights of any type or nature Tchaikovsky has or
had which in any way relate to (i) Tchaikovsky’s employment
with the Company, or the termination of that employment, such as
claims for compensation, bonuses, commissions, lost wages or unused
accrued vacation or sick pay, (ii) the design or administration of
any employee benefit program or Tchaikovsky’s entitlement to
benefits under any such program, (iii) any claims to
attorneys’ fees and/or other legal costs, and (iv) any other
claims or demands Tchaikovsky may on any basis have. The claims
released include, but are not limited to, claims arising under any
of the following statutes or common law doctrines:
(
1
)
Anti-Discrimination Statutes ,
such as the Age Discrimination in Employment Act, which prohibits
age discrimination in employment; the Civil Rights Act of 1991,
Title VII of the Civil Rights Act of 1964, and §1981 of the
Civil Rights Act of 1866, which prohibit discrimination based on
race, color, national origin, religion or sex; the Equal Pay Act,
which prohibits paying men and women unequal pay for equal work;
the Americans With Disabilities Act, which prohibits discrimination
against the disabled; the California Fair Employment and Housing
Act, which prohibits discrimination in employment based upon race,
color, national origin, ancestry, physical or mental disability,
medical condition, martial status, sex, or age; and any other
federal, state or local laws or regulations prohibiting employment
discrimination.
(
2
)
Federal Employment Statutes ,
such as the Employee Retirement Income Security Act of 1974, which,
among other things, protects pension or health plan benefits; and
the Fair Labor Standards Act of 1938, which regulates wage and hour
matters.
(
3
)
Other Laws ,
such as any federal, state or local laws restricting an
employer’s right to terminate employees or otherwise
regulating employment; any federal, state or local law enforcing
express or implied employment contracts
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