|
Exhibit 10.2
STOCK GRANT AND
GENERAL RELEASE AGREEMENT
This
Stock Grant and General Release Agreement ("Agreement") is entered
into effective this 21st day of November, 2006 (the "Effective
Date") by and between Material Technologies, Inc., a Delaware
corporation ("MaTech"), and Robert M. Bernstein, an individual
("Bernstein"). MaTech and Bernstein shall each be referred to
as a "Party" and collectively as the "Parties."
RECITALS
WHEREAS,
Bernstein has recently signed a new employment agreement with Ma
Tech for a three (3) year term (the "Employment Agreement");
WHEREAS,
the Board of Directors of MaTech (the "Directors") wishes to issue
to Bernstein shares of MaTech’s Class A common stock in
appreciation of his work over the past several years, as well as a
bonus for signing the Employment Agreement;
WHEREAS,
the Directors and Bernstein have agreed that a forfeiture
restriction will be placed on any and all shares of its Class A
common stock issued under this Agreement such that if Bernstein is
not employed continuously from the Effective Date and for the next
thirty six (36) months, then he will forfeit the shares back to
MaTech, unless such termination of employment is without cause or
Bernstein is forced to resign for good reason, as defined
herein;
NOW,
THEREFORE, for good and adequate consideration, the receipt of
which is hereby acknowledged, without admitting or denying any
wrongdoing by any Party hereto, the Parties wish to resolve the
dispute in full and therefore, covenant, promise and agree as
follows:
AGREEMENT
1.
Issuance of MaTech Shares. As a bonus for
Bernstein’s past work and his execution of the Employment
Agreement, MaTech agrees to issue to Bernstein, as soon as
possible, Thirty Million (30,000,000) shares of MaTech Class A
common stock, restricted in accordance with Rule 144 and has set
forth in Section 3, below (the "MaTech
Shares").
2.
Consideration of Bernstein . In exchange for the
MaTech Shares, Bernstein agrees that any outstanding amounts that
are currently due and owing to Bernstein from MaTech will be
considered satisfied in their entirety and fully releases MaTech
for all such amounts as set forth herein.
3.
Vesting of MaTech Shares.
(a) The
MaTech Shares will be "unvested shares" until the date which is
thirty six (36) months from the Effective Date (the "Forfeiture
Period"). If Bernstein is not continuously employed by MaTech
during and at the end of the Forfeiture Period, then Bernstein will
be forced to forfeit the MaTech Shares to MaTech upon the cessation
of his employment (a "Share Forfeiture").
1
(b) Notwithstanding
the above, if Bernstein ceases to be employed by MaTech as the
result of a "Termination Without Cause" or a "Resignation For Good
Reason," as defined herein, then he will not be required to forfeit
the MaTech Shares upon termination of his employment.
(c) Under
the terms of Bernstein’s Employment Agreement with MaTech
dated October 1, 2006, MaTech is entitled to terminate
Bernstein’s employment at any time with or without
cause. For the purposes of this Agreement, MaTech’s
termination of Bernstein is a "Termination For Cause" if it is due
to Bernstein: i) committing any material act of dishonesty, ii)
disclosing Confidential Information, (as defined in the Employment
Agreement), iii) is guilty of gross carelessness or gross
misconduct, iv) engages in unfair competition (as defined in
the Employment Agreement), or v) unjustifiably and materially
neglects his duties under the Employment Agreement. Any
termination by MaTech of Bernstein’s employment for any
reason other than those delineated in this Section will be
considered a "Termination Without Cause."
(d) If
Bernstein resigns from his employment with MaTech, then his
resignation will be deemed a "Resignation for Good Reason" under
the terms of this Agreement if, and only if, one or more of the
following conditions occur and such condition(s) is (are) not fully
corrected within ten (10) business days after written notice from
Bernstein to MaTech:
(i) the
assignment to Bernstein of any duties or responsibilities
materially inconsistent with the job description outlined in
Section 2 of the Employment Agreement; or
(ii) the
failure by MaTech to either pay Bernstein any salary or bonus due
hereunder within ten (10) business days of the date that such
payment is due and/or to provide any employment benefits as
required by his Employment Agreement.
4.
Shareholder Rights. During the Forfeiture Period,
Bernstein (or any successor in interest) shall have all stockholder
rights (including voting, dividend and liquidation rights) with
respect to the MaTech Shares, subject, however, to the forfeiture
restrictions discussed herein.
5.
Representation and Warranties of Bernstein . Bernstein
hereby represents and warrants that:
(a) Bernstein
is an individual with authority to execute and deliver this
Agreement, and to carry out the provisions of this Agreement.
(b) The
Agreement, when executed and delivered, will create valid and
binding obligations of Bernstein, enforceable in accordance with
their terms, except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws
2
of general application affecting enforcement of creditors’
rights, and (ii) general principles of equity that restrict
the availability of equitable remedies.
(c) Bernstein
acknowledges that by executing this Agreement he is extinguishing
all debts and/or other obligations owed to him by MaTech as of the
date of this Agreement.
(d) Bernstein
acknowledges and represents that in executing this Agreement,
Bernstein has not relied on any inducements, promises, or
representations made by any Party or any party representing or
serving such Party, unless expressly set forth herein.
(e) The
MaTech Shares will be held in Bernstein’s own account, and
not as a nominee or agent, and not with a view to the resale or
distribution of all or any part of the MaTech Shares. Bernstein is
prepared to hold the MaTech Shares for an indefinite period and has
no present intention of selling, granting any participating
interest in, or otherwise distributing any of the MaTech Shares.
Bernstein does not have any contract, undertaking, agreement
or arrangement with any person to sell, transfer or grant a
participating interest in, any of the MaTech Shares.
(f) Bernstein
has a preexisting business relationship with MaTech, which is of a
nature and duration sufficient to make Bernstein aware of the
character, business acumen and general business and financial
circumstances of the. In addition, Bernstein has been
furnished with, and has had access to, such information concerning
MaTech’s business, management and financial condition as he
considers necessary or appropriate for deciding whether to accept
the MaTech Shares, and Bernstein has had an opportunity to ask
questions and receive answers from MaTech regarding the terms and
conditions of the issuance of the MaTech Shares.
(g) Bernstein
is fully aware of: (i) the speculative nature of the MaTech Shares;
(ii) the lack of liquidity for the MaTech Shares and (iii) the
transfer restrictions and repurchase rights applicable to the
MaTech Shares.
(h) Bernstein
is aware the MaTech Shares have not been registered under the 1933
Act and are being issued to Bernstein in reliance upon the
exemption from such registration provided by Section 4(2) of the
1933 Act. Bernstein hereby confirms that he has been informed
that the MaTech Shares are restricted securities under the 1933 Act
and may not be resold or transferred unless the MaTech Shares are
first registered under the Federal securities laws or unless an
exemption from such registration is available. Accordingly,
Bernstein hereby acknowledges that Bernstein is prepared to hold
the MaTech Shares for an indefinite period and that Bernstein is
aware that SEC Rule 144 issued under the 1933 Act which exempts
certain resales of unrestricted securities is not presently
available to exempt the resale of the MaTech Shares from the
registration requirements of the 1933 Act.
3
6.
Representations and Warranties of MaTech .
(a) MaTech
is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware. MaTech has
all requisite corporate power and authority to own and o
|
