TRANSITION AGREEMENT
Exhibit
10.1
This
Transition Agreement (the “Agreement”) is entered into as of September 27, 2007
(the “Effective Date”), by and between Implant Sciences Corp. (“Implant” or the
“Company”) and Xx. Xxxxxxx Xxxxxx (“Armini”) (collectively, the
“Parties”).
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, the Parties agree as follows:
1. Transition
Period.
Effective September 27, 2007 (the “Transition Date”), Armini has resigned from
(i) his positions as President and Chief Executive Officer of Implant, and
(ii)
all positions, offices and directorships with any subsidiaries of Implant.
Armini agrees not to be nominated or serve as Director of the Company at the
next annual meeting of the stockholders of the Company. Beginning on the
Transition Date and ending on the earlier of September 30, 2009 or a termination
of Armini’s employment pursuant to Paragraph 2 below (the “Transition Period”),
Armini shall be employed by Implant in a non-executive capacity as a Science
Advisor. In that capacity, he shall report solely to Implant’s President
and Chief Executive Officer (“CEO”). During the Transition Period, Armini
shall meet and/or communicate with Company management and senior Company
technical and scientific personnel and provide such information and expertise
as
he may possess for the purpose of transitioning to senior Company technical
and
scientific personnel his knowledge and expertise relating to ion implantation
and semiconductors and related activities conducted by the Company, upon the
CEO’s reasonable request. In addition, Armini will cooperate with the Company in
connection with the OSI Systems Inc. lawsuit, including but not limited to
being
available to meet with the Company’s counsel to prepare for discovery or trial,
providing affidavits as necessary and to testify truthfully as a witness when
reasonably requested by the Company at reasonable times and for reasonable
time
periods. Armini will also assist the Company in the divesture of the brachy
therapy assets and providing such other assistance and advice as are mutually
agreed to. The Parties agree that Armini shall not perform any work or take
any
action on behalf of the Company during the Transition Period except as
explicitly directed and authorized by the CEO and, except for reasonable
transition assistance as specifically set forth above. The Parties further
agree that Armini shall perform all work and provide all assistance hereunder
at
such times and locations as are mutually agreed to by the CEO and Armini and
Armini shall be permitted to work from his home whenever possible. It is
understood that Armini’s position is not full-time and that, with the exception
of the transition assistance specifically set forth above, his services will
be
subject to his availability and other obligations he may then have.
During
the Transition Period, the Company shall compensate Armini at the annual rate
of
$250,000, less applicable taxes and withholdings, to be paid pursuant to
Implant’s normal payroll cycle with a Final Payment of $9,615.38 due upon
execution, delivery and non-revocation of the Release of Claims attached hereto
as Exhibit A (the “Release”), as further described in Paragraph 4. For the
duration of the Transition Period, the Company shall continue to provide Armini
with insurance coverage under its group health, dental and other plans, under
the same terms that applied to Armini on the Transition Date, subject to the
terms of those plans. During the Transition Period, Armini shall not be
eligible for a bonus or other incentive compensation, nor shall he accrue
vacation or sick time and shall not be entitled to the use of a Company car
or
for automobile payments. On the Transition Date the Company shall pay Armini
for
his accrued vacation until the Transition Date.
2. Termination
During the Transition Period.
The Company may not terminate Armini’s employment during the Transition Period
other than for Cause, which shall be defined as (a) material breach in the
performance of his duties under this Agreement or the agreements set forth
in
Section 9 herein which could cause material damage to the Company after a 10-day
written notice and opportunity to cure period or such longer period as is
reasonably required to cure such breach with diligence and good faith efforts;
(b) willful misconduct which is materially injurious to the Company; or (c)
the
conviction of a fraud or felony or criminal offense involving dishonesty or
moral turpitude or breach of trust.
Armini
may terminate this Agreement for any reason on thirty (30) days prior written
notice to the Company. Notwithstanding Armini’s termination of this Agreement he
shall be required to continue to assist the Company in the OSI litigation,
as
before such termination. If the Company terminates Armini’s employment during
the Transition Period with Cause, or if Armini shall terminate this agreement,
Armini shall not be entitled to receive the Payments or benefits set forth
herein, and any entitlement(s) Armini has, might have, had, or might have had
to
compensation, bonuses, wages, or participation in any benefit plan, policy,
program, compensation agreement or practice of the Company shall cease. Such
compensation shall terminate immediately, except as required by law and provided
that his stock options shall be governed by the terms thereof.
3. Separation
From Employment.
Effective on the earlier of Armini’s termination in accordance with Paragraph 2
or September 30, 2009 (the “Separation Date”), Armini’s employment with the
Company shall cease. On or shortly after the Separation Date, the Parties
agree to execute the Release, which shall cover the duration of the Transition
Period.
4. Final
Payment. Upon
the
Separation Date, following the Company’s receipt of the fully-executed Release,
and provided Armini’s employment was not terminated for Cause, or terminated by
Armini for any reason, the Company will issue to Armini final payment of
$9,516.38, less applicable taxes and withholdings (the “Final
Payment”).
5. Health
and Life Insurance Benefits.
Armini may elect to continue his current group medical and/or dental insurance
coverage following the Separation Date, provided he or his eligible dependent(s)
remain eligible for such coverage under the federal law known as COBRA and
provided that he makes the COBRA payments to the Company on or prior to the
time
they are due. Information outlining Armini’s rights and responsibilities under
COBRA will be forwarded to him on or near the Separation Date.
Following
the Separation Date, any entitlement Armini has, might have, had, or might
have
had to compensation, bonuses, wages, or participation in any benefit plan,
policy, program, contract or practice of the Company, shall terminate, except
as
required by federal or state law, by applicable plan terms, or by the express
terms of this Agreement.
6. Stock
Options.
On
September 28, 2007, the Company will xxxxx Xxxxxx qualified stock options to
purchase an aggregate of 200,000 shares of Common Stock of the Company at an
exercise price equal to 110% of the closing price (if he is a 10% shareholder)
on September 28, 2007. The stock options shall vest in equal quarterly
installments of 25,000 options with the first installment vesting on September
28, 2007 and the remaining installments vesting every three months thereafter.
The options shall expire ninety days from the Separation Date. The Parties
acknowledge that Armini has been awarded prior to the date hereof options to
purchase 212,200 shares of the Company’s common stock, 204,200 of which options
are fully vested. The grant dates, vesting dates and exercise prices of
such options are set forth in Exhibit B hereto. Armini shall have the
right to exercise any or all of his option shares until the earlier of (a)
ninety (90) days after the Separation Date or (b) the date they would otherwise
expire by their terms.
7. Property;
Computers.
Armini represents and warrants that no later than September 28, 2007, he will
return to the CFO any and all documents, products, files, notes, memoranda,
records, reports, materials and information related to the Company and its
business that may be at his home or in his possession, including all copies,
extracts and summaries thereof, whether in hard copy or electronic format.
He further agrees that prior to returning these items, he will not disclose
them
or their contents to any person or entity or use them or their contents for
any
purpose except for the benefit of the Company. Armini also agrees that he
will not attempt at any time in the future, for any purpose, to access or use
any of Company’s computers or computer networks or systems, including their
servers and electronic mail system, unless authorized to do so by the
CEO.
Armini
further agrees to return, no later than September 28, 2007, to the CFO all
property and equipment of the Company in his possession, including but not
limited to the Company car, computer equipment,(other than his lap top) cellular
phones, PDAs, access cards and/or keys, passwords or access
codes,
calling cards and credit cards. In turn, the Company agrees that it shall
return to Armini, no later than September 28, 2007, any personal effects
remaining in his Implant office.
For
the
duration of the Transition Period, the Company shall make available to Armini
such information and Company equipment as may be reasonably required to perform
his services for the Company during that Period. In addition, Armini may keep
the Company’s lap top that he was using prior to the Transition Date and his
E-mail account until the Separation Date.
8. Cooperation.
From the execution of this Agreement forward, Armini agrees to reasonably
cooperate with the Company in the defense or prosecution of any threatened
or
actual claims or actions which may be brought by, against or on behalf of the
Company, its predecessors or any of its current or former partners, agents,
employees, directors or affiliates and which relate to events or occurrences
that transpired or are alleged to have transpired during his tenure with the
Company. Such cooperation shall include, without implication of
limitation, being available to meet with the Company’s counsel to prepare for
discovery or trial and to testify truthfully as a witness when reasonably
requested by the Company at reasonable times and for reasonable time
periods.
9. Confidentiality
of Company Information; Restrictive Covenants.
The Parties agree that all of Section 7, Disclosure and Assignment of
Intellectual Property, Section 8, Confidentiality, and Section 9, Restriction,
contained in the Employment Agreement which Armini and the Company entered
into
as of June 30, 2004 are incorporated herein by reference and shall remain in
full force and effect following the execution of this Agreement.
10. Accord
and Satisfaction.
Armini agrees that the payments and benefits set forth in this Agreement,
together with all other payments and benefits previously provided to him by
the
Company, are complete payment, settlement, satisfaction and accord with respect
to all obligations and liabilities of the Releasees to Armini, and with respect
to all Claims that could be asserted by Armini against any of the Releasees
regarding any relationship between Armini and the Company, and any change in
or
cessation of any such relationship, including, without limitation, all claims
for wages, salary, expenses, incentive pay, bonuses, business expenses, paid
time off, equity interests, severance pay, attorneys’ fees, compensatory
damages, exemplary damages, or other compensation, benefits, costs or
sums. The Company agrees that Armini’s undertakings in this Agreement, and
the performance of such undertakings, are complete payment, settlement,
satisfaction and accord with respect to all obligations and liabilities of
Armini to the Company. Provided, however, that nothing in this Agreement
is intended to release or discharge any of the Company’s insurance or indemnity
obligations to Armini regarding Armini’s service as President, Chief Executive
Officer and member of the Board of the Company or any other position with the
Company or its subsidiaries he may have held.
11. Non-Disparagement;
References and Other Communications.
From the execution of this Agreement forward, Armini agrees not to make any
statement, written or oral, which disparages the Company, its business and
services, or any of its partners, members, directors, officers, employees,
or
agents. Armini further agrees not to make any statement or take any action
which has the intended or foreseeable effect of harming the business interests
of the Company, and to refrain from engaging in any communications regarding
the
Company with shareholders, research analysts or others in the financial
community. In addition, Armini agrees that he will refrain from
speaking to third parties on behalf of the Company unless requested to do so
by
the CEO.
For
its
part, the Company agrees that its senior executive officers and the members
of
the Company’s Board of Directors will not make any statement, written or oral,
to any person or entity not affiliated with the Company (excluding agents of
the
Company) which disparages Armini, his business reputation and qualifications,
or
his employment as Chief Executive Officer of the Company.
Nothing
in this Paragraph shall prohibit or bar the Parties from providing truthful
testimony in any legal proceeding or in communicating with any governmental
agency or representative or from making any truthful disclosure required under
law; provided, however, that advance written notice is provided by either party
of the intent to make such disclosures and provided that best efforts will
be
used to ensure that this Paragraph is complied with to the maximum extent
possible. Moreover, nothing herein shall prevent Armini from participating
in any proceeding before any federal or state administrative agency to the
fullest extent permitted by applicable law, provided that he will be prohibited
to the fullest extent authorized by law from obtaining monetary damages in
any
agency proceeding in which he does so participate.
The
parties agree to issue a press release in the form attached hereto as Exhibit
C
and agree that any public statements will be in accordance with Exhibit C and/or
with any SEC filings.
12. General
Release by Armini.
Armini, on behalf of himself and his spouse, heirs, children, successors,
current and former agents, representatives, executors, beneficiaries,
administrators, trustees, attorneys and assigns, voluntarily releases and
discharges the Company and its predecessors, successors, and current and
former assigns, agents, officers, partners, members, directors, shareholders,
employees, subsidiaries, representatives, insurers, investors, attorneys,
affiliates, and any other related entities; and all persons acting by, through,
under, or in concert with any of them (any and all of which are referred to
as
“Releasees”), from any and all charges, complaints, claims, liabilities,
obligations, promises, agreements, causes of action, damages, losses, expenses,
and debts of any nature whatsoever, known or unknown (“Claims”), which Armini
has, claims to have, ever had, or ever claimed to have had against Releasees
through the Transition Date. This general release of Claims includes,
without implication of limitation, all Claims relating to Armini’s employment
and separation from employment with the Company; all Claims relating to Armini’s
relationship to, interest, equity or investment in, memberships in, or
partnerships with the Company; all Claims of discrimination, harassment and
retaliation prohibited by any federal, state, or local statute, regulation,
or
ordinance, including without implication of limitation, Title VII of the Civil
Rights Act of 1964, the Age Discrimination in Employment Act, the Americans
With
Disabilities Act, the Family and Medical Leave Act, the Employee Retirement
Income Securities Act and Massachusetts General Laws Chapter 151B; and all
other
statutory or common law Claims. Armini also waives any Claim for
reinstatement, attorneys’ fees, interest, or costs, and all Claims for wages or
other compensation, provided that this Release shall not be construed to (a)
impair his right to enforce the terms of this Agreement, or (b) release or
discharge any of Implant’s insurance or indemnity obligations to Armini
regarding Armini’s service as President, Chief Executive Officer, and member of
the Board of the Company and any subsidiary and such other positions with the
Company as he may have held. Additionally, nothing in this Agreement shall
be interpreted to prohibit Armini from filing an age discrimination claim with
any anti-discrimination agency, or from participating in an age discrimination
investigation or proceeding conducted by any such agency. However, by
signing this Agreement, Armini acknowledges that he is waiving any and all
rights to money damages and any other relief that might otherwise be available
should he or any other entity pursue claims arising out of or relating to his
employment with the Company against the Releasees.
13. General
Release by the Company.
The Company, on behalf of itself, subsidiaries and its predecessors, successors,
current and former assigns, agents, officers, partners, members, directors,
shareholders, employees, representatives, insurers, investors, attorneys,
affiliates, and any other related entities; and all persons acting by, through,
under, or in concert with any of them, voluntarily releases and discharges
Armini and his spouse, heirs, children, successors, current and former agents,
representatives, executors, beneficiaries, administrators, trustees, attorneys
and assigns, from any and all charges, complaints, claims, liabilities,
obligations, promises, agreements, causes of action, damages, losses, expenses,
and debts of any nature whatsoever, known or unknown, which the Company has,
claims to have, ever had, or ever claimed to have had against Armini, through
the Effective Date, arising out of (a) Armini’s employment relationship with or
service as an employee, officer or director of the Company or the termination
of
such relationship or service or (b) any event, condition, circumstance or
obligation that occurred, existed or arose on or prior to the date the Company
signs this Agreement; provided that this release of claims shall not (i) include
or extend to any claim based upon, arising out of, or relating to any act or
omission by Armini about which the Company did not know as of the date the
Company signs this Agreement, but is discovered within one year from the date
hereof; or (ii) include or extend to any shareholder derivative claims against
Armini; or (iii) be construed to impair the Company’s right to enforce the terms
of this Agreement.
14. Non-Filing
of Complaints or Charges. By
signing this Agreement, the Parties represent that they have not filed any
complaint or charge against each other or against any of the Releasees with
any
local, state or federal agency or court, or assigned any of the released Claims
to any third party.
15. Binding
Nature of Agreement.
This Agreement shall be binding upon, and inure to the benefit of, the Parties
and their respective heirs, administrators, representatives, executors,
successors and assigns. This Agreement may be assigned by the Company, but
may not be assigned by Armini.
16. Remedy
for Breach.
The Parties understand and agree that a material breach of Paragraphs 7, 8,
9,
11, 12, 14 and/or 17 herein could result in irreparable harm to the other Party
and that money damages would not provide an adequate remedy. Therefore,
the Parties agree that in addition to any other rights that either Party may
have, either party shall have the right to seek specific performance and
injunctive relief in the event that the other party materially breaches any
of
those Paragraphs of this Agreement.
17. Voting
Proxy.
Armini
shall provide the Board of Directors with an irrevocable voting proxy in the
form of Exhibit D which will provide that for a period beginning on the
Transition Date and ending on September 30, 2009, all shares of Common Stock
owned by him on the record date of such vote shall be voted in favor of all
resolutions recommended by the Board of Directors. All shares owned by Armini
on
the Transition Date and acquired prior to September 30, 2009 will be subject
to
the proxy. Any shares transferred to a non-affiliate of Armini for fair
consideration shall not be subject to the proxy.
18. Use
of the Agreement as Evidence.
This Agreement may not be used as evidence in any subsequent proceeding of
any
kind, except one in which the Releasees or Armini allege a breach of the terms
of this Agreement or elect to use this Agreement as a defense to any
claim.
19. Entire
Agreement; Modifications.
With the exception of Section 7, Disclosure and Assignment of Intellectual
Property, Section 8, Confidentiality, and Section 9, Restriction, contained
in
the Employment Agreement and the stock option agreements applicable to the
grants set forth herein and in Exhibit B hereto, which will survive and remain
in full force and effect, this Agreement contains the entire agreement among
the
Parties hereto with respect to the matters covered hereby, and supersedes all
prior and contemporaneous communications, e-mails, agreements, representations,
understandings or negotiations between Armini, the Company and/or their agents
and attorneys, including but not limited to the Employment Agreement between
the
Parties dated as of June 30, 2004, other than Section 7, Disclosure and
Assignment of Intellectual Property, Section 8, Confidentiality, and Section
9,
Restriction, contained in the Employment Agreement dated as of June 30, 2004
and
all prior employment agreements. This Agreement may be modified only by a
written agreement signed by an authorized representative of each of the Parties
hereto. No waiver of this Agreement or any provision hereof shall be
binding upon the Party against whom enforcement of such waiver is sought unless
it is made in writing and signed by or on behalf of such Party.
20. Further
Assurances.
The Parties agree to execute, acknowledge (if necessary), and deliver such
documents, certificates or other instruments and take such other actions as
may
be reasonably required from time to time to carry out the intents and purposes
of this Agreement, provided they do not create any material additional
obligations upon either Party.
21.
Notice and Right to Consider.
Armini has been advised to consult with and has consulted with an attorney
before executing this Agreement. He acknowledges that he has been given
the opportunity, if so desired, to consider this Agreement for twenty-one (21)
days before executing it. The Parties agree that any changes to this
Agreement, whether material or not, will not re-start the 21-day period.
If Armini does not sign this Agreement and return it to the Company so that
it
is received within the 21-day period, it will not be valid. In the event
that Armini executes this Agreement within less than twenty-one (21) days,
he
acknowledges that such decision was entirely voluntary and that he had the
opportunity to consider this Agreement for the entire 21-day period. The
Parties acknowledge that, for a period of seven (7) days from the date that
Armini signs this Agreement (the “Revocation Period”), he will retain the right
to revoke this Agreement by written notice to the Company received before the
end of the Revocation Period, and that this Agreement will not become effective
or enforceable until the expiration of the Revocation Period.
22. Acknowledgments
and Other Terms.
Armini agrees that he has carefully read and understands all of the provisions
of this Agreement, that he has been advised to consult with and has consulted
with an attorney, and that he is voluntarily entering this Agreement.
Armini further represents and acknowledges that in executing this Agreement,
he
is not relying and has not relied upon any representation or statement made
by
the Company (including its partners, members, agents, representatives,
directors, employees and attorneys) with regard to the subject matter, basis
or
effect of this Agreement.
23. Interpretation.
The language of all parts of this Agreement shall in all cases be construed
as a
whole, according to its fair meaning, and not strictly for or against any of
the
Parties. This Agreement shall be interpreted in such a manner as to be
effective and valid under applicable law, but if any provision hereof shall
be
prohibited or invalid under any such law, such provision shall be ineffective
to
the extent of such prohibition or invalidity without invalidating or nullifying
the remainder of such provision or any other provisions of this Agreement.
The captions of the sections of this Agreement are for convenience of reference
only, and in no way define, limit or affect the scope or substance of any
section of this Agreement.
24. Counterparts.
This Agreement may be executed in any number of counterparts and may be
delivered by facsimile, each of which shall be deemed to be an original but
all
of which together shall constitute one and the same instrument.
25. Governing
Law.
This Agreement shall take effect as an instrument under seal and shall be
governed and construed in accordance with the laws of Massachusetts, without
regard to its conflicts of laws principles. Except as otherwise provided
in Paragraph 12 of this Agreement, any disputes and claims arising under or
relating to this Agreement and/or the rights, obligations and performance of
the
Parties hereunder shall be settled by a single arbitrator sitting in Boston,
Massachusetts under the applicable Employment Arbitration Rules and Procedures
of the American Arbitration Association. In the event arbitration is
brought with respect to this Agreement by either Party, the prevailing Party
shall be entitled to recover from the losing Party his or its reasonable
attorneys’ fees and expenses.
IN
WITNESS WHEREOF, the Parties hereto have executed this Agreement as an
instrument under seal as of September 27, 2007.
|
|
|||
|
|
|
|
|
|
By:
|
/s/ Xxxxx X. Xxxx |
|
|
|
|
|
|
|
|
Name
and Title:
|
Xxxxx X. Xxxx, VP and CFO |
|
|
|
|
|
|
|
| /s/ Xxxxxxx X. Xxxxxx |
|
||
|
XXXXXXX
XXXXXX
|
|
||
|
|
|
|
|
Exhibit
A
RELEASE
OF CLAIMS
This
Release of Claims (this “Release”) is entered into as of the last date indicated
on the signature page of this Release by and between Implant Sciences Corp.
(“Implant” or the “Company”) and Xxxxxxx Xxxxxx (“Armini”). Armini and
Implant agree as follows:
1.
Release by Armini.
For and in consideration of the receipt of the Final Payment and other benefits
set forth in the September 27, 2007 Transition Agreement between Armini and
Implant (the “Agreement”), which is hereby incorporated by reference, the
sufficiency of which is hereby acknowledged, Armini, on behalf of himself and
his spouse, heirs, children, successors, current and former agents,
representatives, executors, beneficiaries, administrators, trustees, attorneys
and assigns, voluntarily releases and discharges Implant, its subsidiaries
and
its predecessors, successors, and current and former assigns, agents,
officers, partners, members, directors, shareholders, employees,
representatives, insurers, investors, attorneys, affiliates, and any other
related entities; and all persons acting by, through, under, or in concert
with
any of them (any and all of which are referred to as “Releasees”), from any and
all charges, complaints, claims, liabilities, obligations, promises, agreements,
causes of action, damages, losses, expenses, and debts of any nature whatsoever,
known or unknown (“Claims”), which Armini has, claims to have, ever had, or ever
claimed to have had against Releasees through the date last written below.
This general release of Claims includes, without implication of limitation,
all
Claims relating to Armini’s employment and separation from employment with
Implant; all Claims relating to Armini’s relationship to, interest, equity or
investment in, memberships in, or partnerships with Implant; all Claims of
discrimination, harassment and retaliation prohibited by any federal, state,
or
local statute, regulation, or ordinance, including without implication of
limitation, Title VII of the Civil Rights Act of 1964, the Age Discrimination
in
Employment Act, the Americans With Disabilities Act, the Family and Medical
Leave Act, the Employee Retirement Income Securities Act and Massachusetts
General Laws Chapter 151B; and all other statutory or common law Claims.
Armini also waives any Claim for reinstatement, attorneys’ fees, interest, or
costs, and all Claims for wages or other compensation, provided that this
Release shall not be construed to (a) impair his right to enforce the terms
of
the Agreement and this Release, or (b) release or discharge any of Implant’s
insurance or indemnity obligations to Armini regarding Armini’s service as
President, Chief Executive Officer, Treasurer and member of the Board of the
Company and such other positions with the Company as he may have held.
Additionally, nothing in this Release shall be interpreted to prohibit Armini
from filing an age discrimination claim with any anti-discrimination agency,
or
from participating in an age discrimination investigation or proceeding
conducted by any such agency. However, by signing this Release, Armini
acknowledges that he is waiving any and all rights to money damages and any
other relief that might otherwise be available should he or any other entity
pursue claims arising out of or relating to his employment with Implant against
the Releasees.
2.
Release by Implant.
The Company, on behalf of itself, its subsidiaries and its predecessors,
successors, current and former assigns, agents, officers, partners, members,
directors, shareholders, employees, representatives, insurers, investors,
attorneys, affiliates, and any other related entities; and all persons acting
by, through, under, or in concert with any of them, voluntarily releases and
discharges Armini and his spouse, heirs, children, successors, current and
former agents, representatives, executors, beneficiaries, administrators,
trustees, attorneys and assigns, from any and all charges, complaints, claims,
liabilities, obligations, promises, agreements, causes of action, damages,
losses, expenses, and debts of any nature whatsoever, known or unknown, which
the Company has, claims to have, ever had, or ever claimed to have had against
Armini, through the date last written below, arising out of (a) Armini’s
employment relationship with or service as an employee, officer or director
of
the Company or the termination of such relationship or service or (b) any event,
condition, circumstance or obligation that occurred, existed or arose on or
prior to the date the Company signs this Agreement; provided that this release
of claims shall not (i) include or extend to any claim based upon, arising
out
of, or relating to any act or omission by Armini about which the Company did
not
know as of the date the Company signs this Release, but was discovered within
one year of such date ; (ii) include or extend to any shareholder derivative
claims against Armini; or (iii) be construed to impair the Company’s right to
enforce the terms of this Release or the Agreement.
3.
Consideration.
In
consideration of Armini’s execution of this Release, the Company will provide
him with the consideration set forth in the Agreement, which consideration
Employee would not otherwise be entitled to receive. Except as set forth
in this Paragraph 3, and subject to any right or claim Employee may have under
Paragraph 1, it is expressly agreed that the Company does not have any
obligation to provide Employee at any time in the future with any payments,
benefits or other consideration. This Release shall not supersede any
continuing obligations the Employee may have under the terms of the
Agreement.
4.
Non-Filing of Complaint or Charges.
By
signing this Agreement, the Parties represent that they have not filed any
complaint or charge against each other or against any of the Releasees with
any
local, state or federal agency or court, or assigned any of the released Claims
to any third party.
5.
Voluntary Waiver and Acknowledgement.
Armini acknowledges that he has consulted with the attorney of his choice in
connection with executing this Release, and that he has been given the
opportunity, if so desired, to consider this Release for twenty-one (21) days
before executing it. If Armini does not sign this Agreement and return it
to the CEO at Implant so that it is received within twenty-one (21) days of
the
Separation Date as defined in the Agreement, it will not be valid. In the
event that Armini executes this Release within less than 21 days, he
acknowledges that such decision was entirely voluntary and that he had the
opportunity to consider this Release for the entire 21-day period. The
Parties acknowledge that, for a period of seven (7) days from the date that
Armini signs this Release (the “Revocation Period”), he will retain the right to
revoke this Release by written notice to the CEO at Implant, received before
the
end of the Revocation Period, and that this Release will not become effective
or
enforceable until the expiration of the Revocation Period.
6.
Other Terms.
The Parties acknowledge that the performance of the promises of each are
contingent upon the fulfillment of the obligations of the other Party as set
forth in this Release and the Agreement. The Parties agree that this
Release is not, and shall not be construed to be, an admission of any violation
of any federal, state or local statute or regulation, or of any duty owed by
either Party. This Release shall take effect as an instrument under seal
and shall be governed and construed in accordance with Massachusetts law.
If any provision of this Release is deemed invalid, the remaining provisions
shall not be affected and shall be enforced to the maximum extent permitted
by
law.
IN
WITNESS WHEREOF, the Parties have executed this Release as of the date last
written below.
|
/s/
Xxxxxxx X. Xxxxxx
|
|
9/27/07
|
||
|
XXXXXXX
XXXXXX
|
|
DATE
|
||
|
|
|
|
||
|
|
|
|||
|
|
|
|
||
|
By
|
/s/
Xxxxx X. Xxxx
|
|
9/27/07
|
|
|
Title:
|
VP
and CFO
|
|
DATE
|
|
|
|
|
|
|
|
Exhibit
B
Armini
Stock Option Grants
|
Grant Date
|
Term
(yrs)
|
Option
Price
|
Vesting
Rate
|
Option
Grant
|
Option
Balance
|
Vested
Balance
|
|
|
11/11/2002
|
5
|
4.65
|
50%
/ 3 yrs
|
50,000
|
48,000
|
48,000
|
|
|
3/4/2003
|
5
|
2.31
|
100%
|
12,200
|
6,200
|
6,200
|
|
|
8/22/2003
|
5
|
6.96
|
3
years
|
50,000
|
50,000
|
50,000
|
|
|
12/13/2005
|
5
|
4.50
|
100%
|
100,000
|
100,000
|
100,000
|
|
Exhibit
C
IMPLANT
SCIENCES CORPORATION APPOINTS NEW PRESIDENT AND CEO
XX.
XXXXXXX XXXXXX, FOUNDER AND CHAIRMAN, RETIRES AS PRESIDENT AND CEO AFTER
TWENTY-THREE YEARS OF DISTINGUISHED SERVICE
WAKEFIELD,
MA…October 1, 2007…Implant
Sciences Corporation (AMEX: IMX)
today
announced Xx. Xxxxxxx X. Xxxxxx has stepped down as President and CEO of Implant
Sciences approximately twenty three years after founding the Company. In
connection with Xx. Xxxxxx’x retirement, the Company’s Chief Operating Officer,
Xxxxxxx X. Xxxxxx, has been appointed President and CEO. Xx. Xxxxxx will serve
as the Chairman of the Board of the Company until the 2007 annual meeting of
stockholders when his current term is completed later this year.
Commenting
on his retirement, Xx. Xxxxxx, stated, “Over a year ago, the Company embarked
upon a multi-pronged strategy to focus on its security business, streamline
operations, and build a management team to execute its business plan. As part
of
this strategy, and in preparation for my retirement, Xxxx Xxxxxx joined our
management team as COO in March of this year. During the past seven months,
he
has taken on increased responsibilities in the execution of our corporate plan.
His demonstrated success in leading the business has made this transition all
the easier. I hand over the reins of the Company to him with the utmost
confidence that he will continue to execute on the plan, grow the Company and
increase shareholder value.”
Xx.
Xxxxxx added, “I joined Implant Sciences with very specific objectives for the
Company in mind. These included improving our market share within the security
products and services arena, increase revenues and profitability, and
significantly improve our balance sheet, all intended to maximize shareholder
value. I have enjoyed working with Xx. Xxxxxx over these past seven months
as we
endeavored to execute our business strategy. On behalf of everyone at Implant
Sciences, I want to thank him for his lifelong dedication to the Company. His
personal investments of time and money, accompanied by many personal sacrifices
along the way, have created a firm foundation to build upon.”
About
Implant Sciences
Implant
Sciences develops, manufactures and sells products through its primary business
units: (i) explosives trace detection (ETD) systems for homeland security,
defense, and other security related applications and (ii) state of the art
services for the medical and semiconductor industries. The Company has developed
proprietary technology used in its commercial portable and bench-top ETD
systems, which ship to a growing number of locations around the world and
domestically, and is developing several next-generation ETD
systems.
The
Company’s ETD products and developments address many important security needs in
aviation, cargo, transportation, and other related elements of the government
and commercial infrastructure. In addition to its security market focus, the
Company provides high technology coatings for a variety of medical products
at
its main facility in Wakefield, Massachusetts and provides ion implantation
services to the semiconductor industry in a state-of-the-art facility in
Sunnyvale, California. For further details on the Company and its products,
please visit the Company’s new website at xxx.xxxxxxxxxxxxxxx.xxx.
Implant
Sciences believes this press release contains forward-looking statements as
that
term is defined in the Private Securities Litigation Reform Act of 1995. Such
forward-looking statements are subject to risks and uncertainties. Such
statements are based on management's current expectations and are subject to
facts that could cause results to differ materially from the forward-looking
statements.
For
further information you are encouraged to review Implant Sciences’ filings with
the Securities and Exchange Commission, including its Annual Report on Form
10K
for the period ended June 30, 2006 and Quarterly Reports on Form 10Q for the
periods ended September 30, 2006, December 31, 2006 and March 31, 2007. The
Company assumes no obligation to update the information contained in this press
release.
For
further information contact:
Implant
Sciences Corporation
Investor
Relations
(000)
000-0000 or (000) 000-0000
xxxxx@xxxxxxxxxxxxxxx.xxx
xxx.xxxxxxxxxxxxxxx.xxx
Catalyst
Financial Resources
Xxxxxx
X.
X’Xxxxx, 000-000-0000
Xxxxxx@xxxxxxxxxxxxxxxx.xxx
Exhibit
D
Form
of
Proxy
IRREVOCABLE
PROXY
The
undersigned stockholder of Implant Sciences, Corp., a Massachusetts corporation
(the "Company"), hereby irrevocably (to the fullest extent permitted by law)
appoints and constitutes the Board of Directors of the Company, the attorneys
and proxies of the undersigned with full power of substitution and
re-substitution, to the full extent of the undersigned's rights with respect
to
(i) the shares of stock of the Company owned by the undersigned as of the date
of this proxy, and (ii) any and all other shares of stock of the Company which
the undersigned may acquire after the date hereof until September 30, 2009
(the
“Termination Date”). (The shares of the capital stock of the Company referred to
in clauses (i) and (ii) of the immediately preceding sentence are collectively
referred to as the "Shares.") Upon the execution hereof, all prior proxies
given
by the undersigned with respect to any of the Shares are hereby revoked, and
no
subsequent proxies will be given with respect to any of the Shares.
This
proxy is irrevocable, is coupled with an interest and is granted in connection
with the Transition Agreement, dated as of the date hereof, between the Company
and the undersigned (the "Agreement"), and is granted in consideration of the
Company entering into the Agreement. Capitalized terms used but no otherwise
defined in this proxy have the meanings ascribed to such terms in the
Agreement.
The
attorney and proxy named above will be exclusively empowered, and may exercise
this proxy, to vote the Shares in favor of any resolution or nomination approved
by the Board of Directors of the Company, at any meeting of the stockholders
of
the Company however called, and at any adjournment thereof, or in any written
action by consent of stockholders of the Company, where the record date of
the
meeting of Stockholders is between the date hereof and the Termination
Date.
This
proxy shall not apply to shares that the undersigned sells to a non-affiliated
person in an arms length sale for valid consideration. Other than as stated
in
the forging sentence, any obligation of the undersigned hereunder shall be
binding upon the heirs, successors and assigns of the undersigned (including
any
transferee of any of the Shares).
This
proxy shall terminate upon the Termination Date.
Dated:
September 27, 2007
/s/
Xxxxxxx X. Xxxxxx
Name:
Xxxxxxx Xxxxxx
Number
of
Shares of Company
Common
Stock: ____________
