AGREEMENT AND RELEASE
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Exhibit
10.1
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CONSULT
WITH AN ATTORNEY BEFORE SIGNING THIS AGREEMENT AND RELEASE. BY SIGNING THIS
AGREEMENT AND RELEASE, YOU GIVE UP AND WAIVE IMPORTANT LEGAL
RIGHTS.
This
is
an agreement and release (the “Agreement”)
between NanoSensors, Inc., its stockholders (solely in their capacity as
stockholders of NanoSensors, Inc.), affiliates, divisions, successors and
assigns, their respective past and present officers, directors, employees,
agents, attorneys, whether as individuals or in their official capacity,
and
each of their respective successors and assigns (hereinafter collectively
referred to as “NanoSensors”
or
the
“Company”)
and by
his own free will, Xxx X. Xxxx (“Xxxx”
or
“Employee”).
As
used herein, the term “Execution
Date”
shall
mean the later of the two dates on which this Agreement has been executed
by
Employee and NanoSensors, as specified on the signature page of this Agreement.
WHEREAS,
Xxxx
has been an employee of NanoSensors and has served as its Chief Executive
Officer, President and Chief Financial Officer, and
WHEREAS,
Xxxx
has been employed pursuant to a written employment agreement dated as of
August
3, 2006 (the “Employment
Agreement”);
and
WHEREAS,
Employee and NanoSensors each desire an amicable cessation of the employment
relationship,
NOW,
THEREFORE,
in
consideration of the covenants and promises contained herein and for other
good
and valuable consideration, receipt of which is hereby acknowledged, Employee
and NanoSensors (who hereinafter collectively may be referred to as the
“Parties”)
hereby
agree as follows:
1. Termination
of Employment; Resignation from Board:
Employee
acknowledges and agrees that effective the close of business on August 31,
2007
(the “Termination
Date”),
Employee’s employment in all capacities with the Company is terminated and the
Employment Agreement is terminated effective as of the Termination Date.
Further, effective on the Termination Date, Employee hereby resigns as Chairman
of the Board of Directors of the Company.
2. Severance
Payment:
In
consideration for Employee’s execution of this Agreement, and in consideration
for the release of claims against NanoSensors, the Company will pay or provide
to Employee the following:
a. Solely
for the purpose of determining the benefits under Section
2.3
of the
Employment Agreement, Employee’s termination shall be deemed a termination
without cause within the contemplation of such section of the Employment
Agreement.
b. An
aggregate amount of Seventy-Two Thousand and 00/100 ($72,000.00) Dollars
(the
“Severance
Payment”),
payable in equal and consecutive and monthly installments over a period of
six
months on each of the Company’s regular pay dates for executives, commencing on
the first regular executive pay date following the Termination Date, but
in no
event prior to the expiration of the seven-day revocation period (the
“Revocation
Period”)
described on the signature page of this Agreement.
c. In
accordance with Section
5.9
of the
Employment Agreement, the conditions to the vesting of any unvested and
outstanding stock options granted to the Employee under any of the Company’s
stock option plans, shall be deemed fully satisfied and all such incentive
awards shall be immediately and fully vested as of the Termination Date.
In
addition, the terms of all outstanding stock options held by Employee as
of the
Termination Date shall be deemed amended to provide that the awards shall
remain
exercisable for a period of two years following the Termination Date. Attached
as Exhibit
“A”
is a
list of options covered by this provision.
d. In
further consideration of Employee’s services to the Company during the term of
the Employment Agreement, the Company agrees to issue to Employee such number
of
shares of the Company’s common stock with a fair market value equal to $6,250 on
the Termination Date. The Company shall cause such additional shares of common
stock to be issued to the Employee (to the address specified in Section 25
of
this Agreement) on the first business day following the expiration of the
Revocation Period. No other bonus or additional amount shall be due or owing
by
the Company to Employee. As used herein, the term “fair market value” shall mean
the average of the closing price of the Company’s common stock as reported on
the OTC Bulletin Board for the five (5) trading days prior to the date of
determination of fair market value.
e. The
Company agrees that Employee shall be entitled to retain the following items
of
company property which currently in the Company’s leased premises located at
0000 Xxxxx Xxxxx, Xxxxx # 0, Xxxxx Xxxxx, Xxxxxxxxxx: one laptop computer,
telephone hardware, printer, facsimile machine and the furniture and filing
cabinets presently located on the premises. Company will allow Employee to
retain the laptop computer after the Termination Date only upon the Company’s
satisfaction that Employee has deleted and permanently purged all Company
related files and data from such laptop computer (Employee agrees that the
Company reserves the right to inspect such laptop computer to ensure compliance
with this requirement).Other than the foregoing, Employee shall comply with
the
provisions of Section
21
of this
Agreement and return to the Company all other Company property in his possession
or custody or under his control.
f. Employee
agrees and acknowledges that the Company’s payment of the compensation described
in Sections
2(a) - 2(e)
of this
Agreement is in lieu of all other compensation to which Employee may have
been
entitled pursuant to the Employment Agreement.
3. Benefits:
On
the
first regular executive pay date following the Termination Date, the Company
shall pay the Employee an amount of Five Thousand One Hundred Twenty Five
and
00/100 ($5,125). Dollars for unused vacation time in accordance with the
Company’s current policy. Except as provided in the immediately preceding
sentence, effective as of the Termination Date, (i) the Company shall have
no
obligation to continue Employee’s enrollment or participation in any benefit
plans or programs and (ii) Employee shall not be entitled to participate
in any
Company benefit programs, receive any amounts under any Company benefit programs
or otherwise receive any further benefits.
4. Expense
Reimbursement:
To the
extent Employee has unreimbursed business expenses, incurred through the
Termination Date, Employee must promptly submit the expenses with all
appropriate documentation; those expenses which meet the Company’s guidelines
will be reimbursed. Any expense account that Employee has with the Company
terminates effective on the Termination Date, and any expenses already incurred
will be reviewed and processed in accordance with the policies and procedures
of
the Company. No new expenses may be incurred after the Termination Date.
Employee agrees to promptly pay any outstanding balance on these accounts
that
represent non-reimbursable expenses. Company will pay accepted expenses within
twenty (20) business days from the Termination Date, in accordance with the
Company’s expense reimbursement guidelines existing as of the Execution Date.
Employee
hereby represents that (i) he has not incurred any reimbursable expenses
subsequent to the Termination Date and (ii) as of the Termination Date he
has
provided the Company with appropriately detailed reports covering all
reimbursable expenditures incurred up to the Termination Date.
2
5. No
Admission:
Employee
understands that this Agreement does not constitute an admission by the Company
of any liability, error or omission, including without limitation, any: (a)
violation of any statute, law, or regulation; (b) breach of contract, actual
or
implied; or (c) commission of any tort.
6. Acknowledgement:
Employee
acknowledges that the consideration provided in this Agreement under Sections
2(a), 2(d) and 2(e) exceed that to which Employee would otherwise be entitled
under the normal operation of any benefit plan, policy or procedure of the
Company or under any previous agreement (written or oral) between the Parties.
Employee further acknowledges that the agreement by NanoSensors to provide
the
Severance Payment and the consideration pursuant to this Agreement beyond
Employee’s entitlement is conditioned upon Employee’s release of all claims
against NanoSensors and Employee’s compliance with all the terms and conditions
of this Agreement.
7. No
Other
Payments:
The
Parties agree that, except as provided for herein, there shall be no other
payments or benefits payable to Employee, including but not limited to, salary,
bonuses, fees, commissions and/or other payments.
8. Arbitration:
a. The
Parties specifically, knowingly and voluntarily agree to arbitrate any claim,
controversy or dispute which has arisen or should arise in connection with
Employee’s employment, the cessation of Employee’s employment, or in any way
related to the terms of this Agreement. The Parties agree to arbitrate any
and
all such controversies, disputes, and claims before a single arbitrator in
the
State of California in accordance with the Rules of the American Arbitration
Association. The arbitrator shall be selected by the Association and shall
be an
attorney-at-law experienced in the field of corporate law and admitted to
practice in the State of California. The arbitration shall occur in the
Association’s office closes to the Company’s headquarters. In the course of any
arbitration pursuant to this Agreement, the Parties agree (i) to request
that a
written award be issued by the arbitrator and (ii) that each side is entitled
to
receive any and all relief it would be entitled to receive in a court
proceeding. The Parties knowingly and voluntarily agree to enter into this
arbitration clause and, except for claims contemplated in Section
8(b)
below,
waive any rights that might otherwise exist to request a jury trial or other
court proceeding. This paragraph is intended to be both a post-dispute and
pre-dispute arbitration clause. Any judgment upon any arbitration award may
be
entered in any court, federal or state, having competent jurisdiction of
the
Parties. The Parties’ agreement to arbitrate disputes includes, but is not
limited to, any claims of unlawful discrimination and/or unlawful harassment
under Title VII of the Civil Rights Act of 1964, as amended, the Age
Discrimination in Employment Xxx 0000, as amended, the Americans with
Disabilities Act, and any other federal, state or local law relating to
discrimination in employment and any claims relating to wage and hour claims
and
any other statutory or common law claims.
b. Notwithstanding
the foregoing, Employee acknowledges and agrees that the breach by Employee
of
the non-disparagement, confidentiality, non-competition, assignment or
cooperation obligations (as provided by Sections
9 - 15 and 20
of this
Agreement) will cause the Company irreparable injury not compensable by money
damages and therefore, the Company will not have an adequate remedy at law.
Accordingly, the Company may commence a proceeding for equitable relief in
any
court of competent jurisdiction to enforce such rights. If the Company
institutes an action or proceeding to enforce such obligations, it shall
be
entitled to injunctive or other equitable relief to prevent or curtail any
such
breach, threatened or actual.
3
9. Confidential
Treatment:
Employee
and NanoSensors agree that the terms and existence of this Agreement are
and
shall remain confidential and agrees not to disclose any terms or provisions
of
this Agreement, or to talk or write about the negotiation, execution or
implementation of this Agreement, without the prior written consent of the
other, except (a) as required by law or by regulatory authorities, including
as
may be required under the Securities Exchange Act of 1934, as amended, and
the
rules and regulations of the U.S. Securities and Exchange Commission promulgated
thereunder; (b) as required within NanoSensors to process this Agreement;
or (c)
in connection with any arbitration or litigation arising out of this Agreement.
Anything herein to the contrary notwithstanding, Employee may disclose the
terms
of this Agreement to Employee’s immediate family, accountant or attorney,
provided they are made aware of and agree to the confidentiality
provisions.
10. Proprietary
Information:
Employee
further acknowledges and agrees that the provisions of Section
6.1
of the
Employment Agreement (“Confidential
and Proprietary Rights”)
shall
remain in full force and effect and acknowledges his obligations thereunder
not
to, without limitation, disclose or use the Company’s Proprietary Information,
as such term is defined in Section
6.1
of the
Employment Agreement.
11. Restrictive
Covenants:
Employee
agrees and acknowledges that the restrictive covenants set forth in Section
6.3
of the
Employment Agreement remain in full force and effect and the twelve-month
restrictive period contemplated by such section shall commence on the
Termination Date. Further, in addition to the provisions of Section
6.3,
Employee agrees that in consideration for the payments and other consideration
provided in this Agreement, Employee will not, during the period of
non-competition referred to in Section
6.3
of the
Employment Agreement, either directly or indirectly, solicit any person or
entity who is retained by the Company as a consultant or advisor (or who
was so
retained by the Company within six months of the Termination Date) in connection
with any Competitive Business. As used herein the term “Competitive
Business”
shall
mean the manufacture, development and/or distribution of sensor devices to
detect e. coli and salmonella. The Company agrees that the foregoing definition
of the term “Competitive Business” shall supersede the definition of such term
as provided in Section 6.3 of the Employment Agreement.
12. Assignment
of Work Product:
Employee
further acknowledges and agrees that the provisions of Section
6.2
of the
Employment Agreement (“Assignment
of Inventions”)
shall
remain in full force and effect and Employee acknowledges, and hereby reaffirms
his agreement to perform, his obligations thereunder.
13. No
Disparagement:
Employee
agrees that commencing on the Execution Date and for a period of three years
thereafter, Employee shall not make any negative or derogatory statements
in
verbal, written, electronic or any other form about the Company, or its
officers, employees and directors including, but not limited to, a negative
or
derogatory statement made in, or in connection with, any article or book,
on a
website, in a chat room or via the internet. The Company agrees not to issue,
and will advise its executive officers and directors not to make, any negative
or derogatory statements in verbal, written, electronic or any other form
about
Employee during the three-year period described in the first sentence of
this
paragraph.
4
14. Litigation:
a. Employee
shall cooperate fully with the Company in the prosecution or defense, as
the
case may be, of any and all actions, governmental inquiries or other legal
or
regulatory proceedings in which Employee’s assistance may be reasonably
requested by the Company. Reasonable expenses arising from the cooperation
will
be advanced or reimbursed within the Company’s guidelines. Consistent with the
Company’s Certificate of Incorporation and By-Laws, each as amended to date, the
Company will hold harmless and indemnify Employee from and against any expenses
(including attorneys’ fees), fines, judgments and amounts paid in settlement
arising from any claim, suit or other action against Employee by any third
party, on account of any action or inaction by Employee taken or omitted
to be
taken by Employee on behalf of NanoSensors during the course of his employment,
up to the Termination Date, provided that such action or inaction by Employee
was within the scope of Employee’s employment, consistent with the Company’s
policies and procedures and not within any of the applicable exceptions set
forth in Section
8
of the
Employment Agreement. In accordance with Section
8
of the
Employment Agreement, the Company further agrees to use commercially reasonable
efforts to maintain such insurance, including, but not limited to, directors’
and officers’ liability insurance, and liability insurance, as is necessary and
reasonable to protect the Employee from any and all claims arising from or
in
connection with his employment by the Company for a period of six (6) years
after the Termination Date.
b. Except
if
required by applicable law, Employee agrees that he will not provide support
or
assistance, directly or indirectly, to any individual, corporation, or other
non-governmental entity in connection with any claim, action, suit or proceeding
involving the Company or any of its affiliates unless required to do so by
law
(in which case Employee agrees to promptly notify the Company of such legal
requirement).
c. Employee
acknowledges that he has advised the Company completely and candidly of all
facts of which he is aware that may give rise to legal matters.
15. References:
Employee
shall direct all requests for references to be forwarded in writing to the
Company, attention: Office of the President. The Company will state in response
to such inquiries your dates of employment and positions held. The Company
shall
not be responsible for responses to reference requests sought or obtained
other
than under the procedures set forth in this paragraph. The Company shall
direct
employees authorized to make communications concerning Employee not to convey
negative or derogatory statements regarding Employee if contacted for a
reference.
16. Release
of Claims:
a. Release.
Employee
has executed the General Release appended as Exhibit B to this Agreement,
which
General Release is hereby incorporated into this Agreement by
reference.
b. Employee
Right. Employee
and Company hereby agree that solely in the event the Company commences a
legal
proceeding against Employee, Employee shall have the option to void the General
Release appended to this Agreement, subject to the condition precedent that
he
repays to the Company all amounts paid by the Company to the Employee pursuant
to Section 2 of this Agreement (the “Repayment
Amount”).
In
the event the Employee elects to exercise this option and deliver the Repayment
Amount to the Company, the General Release contemplated in Section 16(a)
hereof
and appended as Exhibit B to this Agreement shall be deemed void and
unenforceable, effective upon the Company’s receipt of the Repayment Amount in
immediately available U.S. funds. Notwithstanding the foregoing, the right
granted to Employee pursuant to this Section 16(b) shall not be exercisable
with
respect to any: (i) any rights, remedies, or claims Company may have in
enforcing the terms of this Agreement or (ii) claim (including counterclaims)
that the Company may have in an action or proceeding commenced by the Employee
that is excluded from the scope of the General Release.
5
c. Waiver
of Civil Code Section 1542. Employee
represents, warrants, and agrees that it has been informed of, has read,
is
familiar with, understands, and does hereby expressly waive all rights that
it
has or may have under Section 1542 of the California Civil Code and all other
similar rights in other states or territories of the United States of America,
or any other jurisdiction, as said Section may apply to the releases in this
Agreement only. Said Section 1542 provides:
A
GENERAL
RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT
TO
EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY
HIM,
MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
17. Governing
Law:
This
Agreement shall be deemed to have been made within the State of California,
and
shall be interpreted and construed and enforced in accordance with the laws
of
the State of California without regard to its conflicts of law
provision.
18. Right
to
Review:
Employee
is hereby advised of Employee’s rights to review this Agreement with counsel of
Employee’s choice. Employee has had the opportunity to consult with an attorney
and/or other advisor of Employee’s choosing before signing the Agreement, and
was given a period of twenty-one (21) days to consider the Agreement. Employee
is permitted, at his discretion, to return the Agreement prior to the expiration
of this twenty-one (21) day period. Employee acknowledges that in signing
this
Agreement, Employee has relied only on the promises written in this Agreement,
and not on any other promise made by the Company or any other entity or
person.
19. No
Claims:
Employee
represents that Employee has not filed any complaints, charges or claims
against
NanoSensors with any local, State, or Federal agency or court, or with any
other
forum. Employee represents and warrants that he is the sole and lawful owner
of
all rights, titles and interest in and to every claim and other matters which
he
releases herein, and that no other person, individual, or entity has received
any assignment or other right of substitution or subrogation to any matters
relating to or arising out of any such claim.
20. Company
Representation:
The
Company acknowledges that it has advised Employee completely and candidly
of all
facts of which it is aware that may give rise to legal matters. The Company
is
not aware of any claims or any facts giving rise to a claim against the Employee
by the Company, nor does the Company have any present intention, based on
its
current awareness, to make any claim against Employee. Nothing herein however
shall be construed as a waiver or release by the Company to pursue any legal
or
equitable remedy it may have against Employee under any statute, contract
or
applicable law.
21. Return
of Property:
Except
as specified in Section
2(e)
of this
Agreement, on or before the Termination Date, Employee shall return any Company
property in his possession or custody or under his control, no matter where
located including, but not limited to, I.D. or security cards, corporate
credit
card, keys, computer disks, equipment, furniture, computers, peripherals
and
other electronic devices, and any written or electronic material prepared
or
received during his employment with the Company, including without limitation,
memoranda, reports, files, correspondence, manuals, notes, specifications,
data,
whether existing in hard copy or other media.
22. Performance
of Agreement:
In the
event Employee materially breaches this Agreement, Employee agrees to forfeit
the entire consideration given for this release and to pay the Company any
actual damages caused by Employee’s breach. In the event the Company materially
breaches this Agreement, all amounts due hereunder will be accelerated and
become due immediately.
6
23. Severability:
If any
provision of this Agreement, or any part thereof, is held to be invalid or
unenforceable because of the scope or duration of or the area covered by
such
provision, the Parties agree that the court or other appropriate decision-making
authority making such determination shall reduce the scope, duration and/or
area
of such provision (and shall substitute appropriate provisions for any such
invalid or unenforceable provisions) in order to make such provision enforceable
to the fullest extent permitted by law and/or shall delete specific words
and
phrases, and such modified provision shall then be enforceable and shall
be
enforced. In the event that any court or other appropriate decision-making
authority determines that the time period or the area, or both, are unreasonable
and that any of the covenants is to that extent invalid or unenforceable,
the
Parties hereto agree that such covenants will remain in full force and effect,
first, for the greatest time period, and second, in the greatest geographical
area that would not render them unenforceable. If any provision of this
Agreement is held to be invalid or unenforceable, the remaining provisions
of
this Agreement shall nonetheless survive and be enforced to the fullest extent
permitted by law.
24. Separate
Counsel:
The
Parties acknowledge that NanoSensors has been represented in this transaction
by
Xxxxxx & Xxxxxxxxx, LLP. Employee hereby expressly acknowledges that he has
been advised that he has not been represented by the Company’s attorneys in this
matter and that Employee has been advised and urged to seek separate legal
counsel for advice in this matter.
25. Notices:
Any
notices hereunder shall be sent to the Company and to Employee at their
respective addresses set forth below. Any notice shall be given by certified
mail, return receipt requested, postage prepaid, overnight courier or personal
delivery. Notices shall be deemed to have been given when deposited in the
United States mail or delivered to a nationally-recognized courier service.
Either Party may designate any other address to which notice shall be given,
by
giving written notice to the other of such change of address in the manner
herein provided.
|
If
to the Company:
NanoSensors,
Inc.
0000
Xxxxx Xxxxx, Xxxxx 0
Xxxxx
Xxxxx, XX 00000
Attention:
Chief Executive Officer
|
If
to Employee:
Xxx
X. Xxxx
c/o
Xxx X. Xxxx, Esq.
Xxxxx
Xxxxxx, LLP
Xxx
Xxxxxx, Xxxxx Xxxxx, Xxxxx 0000
Xxx
Xxxxxxxxx, XX 00000-0000
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26. Entire
Agreement; Modifications:
Except
as otherwise expressly provided herein, this Agreement and Release, together
with the General Release constitute the entire agreement between the Parties
and
supersede any and all prior agreements, whether written or oral. This Agreement
may not be modified or changed, except in a written agreement signed by both
Parties. The failure
of either party at any time to require performance by the other party of
any
provision hereof shall in no way affect the full right to require such
performance at any time thereafter. Nor shall the waiver by either party
of a
breach of any provision hereof constitute a waiver of any succeeding breach
of
the same or any other such provision nor constitute a waiver of the provision
itself. The Agreement may be executed in multiple counterparts, each of which
shall be considered an original but all of which shall constitute one
agreement.
[Remainder
of Page Intentionally Left Blank]
7
IN
WITNESS WHEREOF, the Parties have executed this Agreement as of the dates
set
forth below.
I
have read this Agreement, and I understand all of its terms. I enter into
and
sign this Agreement knowingly and voluntarily with full knowledge of what
it
means. I understand that I have twenty-one (21) days to consider this Agreement
and return it to NANOSENSORS. I also understand that I have seven (7) days
to
revoke this Agreement in writing after I sign it. I understand that a revocation
will become effective only if I furnish NANOSENSORS with written notice,
within
such seven (7) day period. This Agreement will not become effective or
enforceable until NANOSENSORS’s receipt back of Employee’s executed Agreement
and the expiration of the seven day revocation period.
|
Employee:
/s/
Xxx X. Xxxx
Xxx
X. Xxxx
|
NanoSensors,
Inc.:
By:
/s/
Xxxxxx Xxxxx
Name:
Xxxxxx Xxxxx
Title:
Authorized Representative
|
|
Date:
September 6, 2007
|
Date:
September 9, 2007
|
8
Exhibit
A
|
Original
Issuance Date:
|
Number:
|
Exercise
Price:
|
Expiration
Date:
|
|||
|
December
13, 2006
|
5,000,000
|
$0.049
|
August
13, 2016
|
|||
|
December
13, 2006
|
13,000,000
|
$0.049
|
August
13, 2016
|
|||
|
TOTAL
OPTIONS
|
18,000,000
|
|||||
|
Vesting:
All of the above options will become fully vested on the Termination
Date
|
||||||
9
EXHIBIT
B
CONSULT
WITH AN ATTORNEY BEFORE SIGNING GENERAL RELEASE. BY SIGNING THIS GENERAL
RELEASE, YOU GIVE UP AND WAIVE IMPORTANT LEGAL RIGHTS.
GENERAL
RELEASE
I,
Xxx X.
Xxxx, understand and, of my own free will, enter into this General
Release.
In
consideration of the payments, benefits, agreements, and other consideration
to
be provided by NanoSensors, Inc. (“NanoSensors”) as described in the agreement
of which this General Release is a part (such agreement, this General Release,
together, the “Agreement”), Xxx X. Xxxx, for himself and for his heirs,
executors, administrators, and their respective successors and assigns
(collectively, “Employee”), HEREBY
RELEASES AND FOREVER DISCHARGES,
to the
maximum extent permitted by law, NanoSensors, Inc., its stockholders (solely
in
their capacity as stockholders of NanoSensors), subsidiaries, affiliates,
divisions, successors and assigns, their respective current and former officers,
directors, employees, agents, attorneys, whether as individuals or in their
official capacity, and each of their respective successors and assigns
(hereinafter collectively referred to as “NanoSensors”) of and from all or any
manner of actions, causes and causes of action, suits, debts, obligations,
damages, complaints, liabilities, losses, covenants, contracts, controversies,
agreements, promises, variances, trespasses, judgments and expenses (including
attorneys’ fees and costs), extents, executions, claims and demands whatsoever
at law or in equity (“claims”), specifically including by way of example but not
limitation, Title VII of the Civil Rights Acts of 1964 and 1991, as amended;
the
Civil Rights Act of 1866; the Employee Retirement Income Security Act of
1974,
as amended; the National Labor Relations Act, as amended; the Americans with
Disabilities Act of 1990; the Age Discrimination in Employment Act of 1967,
as
amended; the Worker Adjustment and Retraining Notification Act; the Pregnancy
Discrimination Act; and all Federal, State and local statutes, regulations,
decisional law and ordinances and all human rights, fair employment, contract
and tort laws relating to Employee’s employment with NanoSensors and/or the
termination and any civil rights or human rights law, as well as all claims
for
wrongful discharge, breach of contract, personal injury, defamation, mental
anguish, injury to health and reputation, and sexual harassment, which Employee
ever had, now has, or which Employee hereafter can, shall or may have for,
upon
or by reason of any matter, cause or thing whatsoever arising out of Employee’s
employment by NanoSensors or the termination thereof, provided that this
General
Release shall not extend to (i) any rights, remedies, or claims Employee
may
have in enforcing the terms of this Agreement; (ii) any rights Employee may
have
to receive vested amounts under NanoSensors’ stock option plan, 401(k) or
pension plans; (iii) Employee’s rights to medical benefit continuation coverage,
on a self-pay basis, pursuant to federal law (COBRA); and (iv) claims for
indemnification (whether under state law, the Company’s by-laws or otherwise)
for acts performed as an officer or director of the Company or any of its
affiliates. Employee takes this action fully aware of Employee’s rights arising
under the laws of the United States (and any State or local governmental
entity
thereof) and voluntarily waives and releases all such rights or claims under
these or other laws, but does not intend to, nor is Employee waiving any
rights
or claims that may arise after the date that this Agreement is signed by
Employee. The provisions of any laws providing in substance that releases
shall
not extend to claims which are at the time unknown to or unsuspected by the
person executing such release, are hereby waived.
10
Waiver
of Civil Code Section 1542. Employee
represents, warrants, and agrees that it has been informed of, has read,
is
familiar with, understands, and does hereby expressly waive all rights that
it
has or may have under Section 1542 of the California Civil Code and all other
similar rights in other states or territories of the United States of America,
or any other jurisdiction, as said Section may apply to the releases in this
Agreement only. Said Section 1542 provides:
A
GENERAL
RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT
TO
EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY
HIM,
MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR
Employee
represents that Employee has been advised to and has had an opportunity to
consult with an attorney and/or any other advisors of Employee’s choosing before
signing this Agreement, and was given a period of twenty-one (21) days to
consider this Agreement. Employee is permitted, at his discretion, to return
the
Agreement prior to the expiration of this 21-day period. Employee has relied
only on the promises written in the Agreement, and not on any other promise
made
by NanoSensors or any other entity or person.
Employee
has seven (7) days to revoke the Agreement after Employee signs it. The
Agreement will not become effective or enforceable until NanoSensors’s receipt
back of Employee’s executed Agreement and the expiration of the seven day
revocation period.
Employee
has read and understood the Agreement and enters into it knowingly and
voluntarily.
IN
WITNESS WHEREOF, Xxx X. Xxxx has set his hand this 6th day of September,
2007
having had the opportunity to review this with counsel of his or her
choice.
|
/s/
Xxx X.
Xxxx
Xxx
X. Xxxx
|
11
