Contract
EXHIBIT
10.1
THIS
SEPARATION AGREEMENT AND RELEASE OF ALL CLAIMS (the “Agreement”) is entered into
between Altair Nanotechnologies, Inc., a Canadian corporation (“Altair”), and
Xxxxxxx X. XxXxxxxx (“Xx. XxXxxxxx”), an individual, effective as of September
6, 2008 (the “Termination Date”).
Background
Altair
has employed Xx. XxXxxxxx as Vice President and Chief Patent Counsel pursuant to
the Employment Agreement entered into as of March 10, 2008 (the “Employment
Agreement”) among Altair, Altairnano, Inc. and Xx.
XxXxxxxx. Capitalized terms used but not defined herein have the
meaning set forth for such terms in the Employment Agreement.
Altair
has asked Xx. XxXxxxxx to resign and, in exchange for his agreement to resign,
Altair has agreed to provide Xx. XxXxxxxx with the termination benefits
described in Section 7.4 of the Employment Agreement, subject to the terms and
conditions set forth therein. In order to resolve all issues related
to the employment of Xx. XxXxxxxx with, and the separation of Xx. XxXxxxxx from,
Altair and its Affiliates (whether under the Employment Agreement or otherwise),
Altair and Xx. XxXxxxxx hereby agree as follows:
Agreement
1. Payment to Xx.
XxXxxxxx. In exchange for Xx. XxXxxxxx’x execution of this
Agreement and the covenants and promises contained herein and in the Employment
Agreement, and subject to the terms and conditions set forth in this Agreement
and the Employment Agreement, Altair shall pay Xx. XxXxxxxx the separation
payments required under Section 7.4 of the Employment Agreement in connection
with a termination by Altair of Xx. XxXxxxxx’x employment without Cause during
the Term.
2. Review and
Revocation. Xx. XxXxxxxx understands and agrees that he has 21
days from the date Xx. XxXxxxxx receives this Agreement to consider the terms of
and to sign this Agreement. Xx. XxXxxxxx understands that, in his
sole and absolute discretion, Xx. XxXxxxxx may sign this Agreement prior to the
expiration of the 21-day period.
Xx.
XxXxxxxx further acknowledges and understands that he may revoke this Agreement
for a period of up to 7 days after he signs it (not counting the day it is
signed) and that this Agreement shall not become effective or enforceable until
the 7-day revocation period has expired and shall be void ab initio if revoked by Xx.
XxXxxxxx during the 7-day revocation period. To revoke this
Agreement, Xx. XxXxxxxx must give written notice stating that he wishes to
revoke the Agreement to Xxxx Xxxxxxx, Chief Financial Officer, Altair
Nanotechnologies, Inc., 000 Xxxxxx Xxx, Xxxx, Xxxxxx 00000, Facsimile
No. (000) 000-0000. If Xx. XxXxxxxx mails a notice of revocation to
Altair, it must be postmarked no later than 7 days following the date on which
Xx. XxXxxxxx signed this Agreement (not counting the day it was signed) or such
revocation shall not be effective.
3. Payments and Benefits After
Revocation Period.
a. Extended
Medical Coverage.
(1) To
effectuate Xx. XxXxxxxx’x continued participation in the company health benefit
plan, as contemplated by Section 7.4(b) of the Employment Agreement, Xx.
XxXxxxxx shall complete and return to Altair those forms necessary to elect
continuation coverage under Altair’s group medical insurance plan pursuant to
Sections 601 through 607 of the Employee Retirement Income Security Act of 1974,
as amended (“COBRA”), which election forms shall be provided by Altair to Xx.
XxXxxxxx. Said health benefit coverage shall continue until the
earlier of (a) eighteen (18) months from the Termination Date; (b) the date Xx.
XxXxxxxx first becomes eligible for coverage under any group health plan
maintained by another employer of Xx. XxXxxxxx or his spouse; or (c) the date
such COBRA continuation coverage otherwise terminates as to Xx. XxXxxxxx under
the provisions of Altair’s group medical insurance plan. Nothing
herein shall be deemed to extend the otherwise applicable maximum period in
which COBRA continuation coverage is provided or supersede the plan provisions
relating to early termination of such COBRA continuation coverage.
(2) If
Xx. XxXxxxxx does not elect COBRA continuation coverage or provides Altair with
notice that he no longer wishes to receive or is ineligible to receive COBRA
continuation benefits, then Altair shall pay to Xx. XxXxxxxx an amount equal to
the premium payments that Altair would have paid on behalf of Xx. XxXxxxxx under
Section 1.a., which amount shall be paid in a lump sum within thirty (30) days
after Altair’s receipt of notice under this paragraph. Any such
payment shall be subject to all applicable federal and state payroll withholding
laws.
(3) The
parties confirm and agree that Altair currently pays 85% of the cost of
providing medical benefits to Xx. Xxxxxx and 50% of the cost of providing
medical benefits to his spouse/family, with the remaining percentage of the cost
of such benefits being paid by Xx. XxXxxxxx through payroll
deductions. The parties agree that, during the period of the medical
severance benefit under Section 7.4(b), each party shall continue to pay the
same percent of Altair’s actual cost of providing the medical severance benefit
(which cost is expected to increase as a result of the termination of the
employment relationship and as a result of inflation). During the
period that Xx. XxXxxxxx continues to receive a severance salary benefit under
Section 7.4(a) of the Employment Agreement, Altair shall continue to deduct any
portion of the cost of the medical severance benefit payable by Xx. XxXxxxxx
from the periodic severance salary payments. If Xx. XxXxxxxx
continues to be entitled to the medical severance benefit beyond such period,
Xx. XxXxxxxx shall pay the entire premium associated with the continuing medical
severance benefit directly to the provider. Following payment, Xx.
XxXxxxxx shall submit to Altair reasonable evidence of payment and a request for
reimbursement of Altair’s share of such premium. Within then (10)
business days of receipt of reasonable evidence of payment and request for
reimbursement, Altair shall reimburse Xx. XxXxxxxx in an amount equal to
Altair’s share of such premium.
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b.
Salary-Based Severance. Xx. XxXxxxxx understands and agrees that,
assuming continuing satisfaction of all conditions precedent, the payments based
upon his annual salary (as more fully set forth under Section 7.4(a) of the
Employment Agreement) shall commence on Altair’s next regular payroll following
the expiration of the 7-day revocation period set out in Section
2. Xx. XxXxxxxx understands that, pursuant to Section 7.6 of the
Employment Agreement, Xx. XxXxxxxx is not entitled to any payments or benefits
under Section 7.4 of the Employment Agreement prior to his execution and
delivery of this Agreement (and the passing of the 7-day revocation period) and
during any period during which there is a Covenant Breach (as defined in the
Employment Agreement).
c. Prospectus
Bonus-Based Severance. Xx. XxXxxxxx understands and agrees that, assuming
continuing satisfaction of all conditions precedent set forth in this Agreement
and the Employment Agreement, the payment linked to his prospective bonus (as
more fully set forth under Section 7.4(iii) of the Employment Agreement) shall
be a one-time bonus occurring during January 2009 paid 100% in cash rather than
the cash/stock split as specified in Xx. XxXxxxxx’x Employment
Agreement.
d. After
the 7-day revocation period, Altair and Xx. XxXxxxxx agree to negotiate a
consulting agreement in good faith, whereby Xx. XxXxxxxx would provide services
to Altair in connection with the transition of Altair projects on which he was
most recently working. In such capacity, Xx. XxXxxxxx would only
communicate with Xxxxx Xxxxxxxx, Xxxx Xxxxxxx or any other person designated by
Messers. Xxxxxxxx or Fallini. Xx. XxXxxxxx further understands that
the agreement would terminate after one (1) month. In the furtherance
of this objective, Xx. XxXxxxxx will provide Xx. Xxxxxxx a status report
by no later than September 6, 2008 listing all the open projects and
activities upon which he is working. This report will list, at a
minimum, the issue, its current status, main contacts, planned next steps,
etc. This report will serve as one of the major inputs for the
negotiation of the above described consulting agreement.
4. Release of All
Claims. In consideration of the payments stated in Section 7.4
of the Employment Agreement and Section 1 above and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, Xx.
XxXxxxxx, for himself and for his heirs, assigns, and all persons and entities
claiming by, through, or under him, hereby irrevocably, unconditionally, and
completely releases, discharges, and agrees to hold Altair and its Affiliates
(hereinafter referred to, both individually and collectively, as “Releasees”),
harmless of and from any and all claims, liabilities, charges, demands,
grievances, and causes of action of any kind or nature whatsoever, including
without limitation claims for contribution, subrogation, or indemnification,
whether direct or indirect, liquidated or unliquidated, known or unknown, which
Xx. XxXxxxxx had, has, or may claim to have against Releasees (hereinafter
collectively referred to as “Claim(s)”).
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The
release, discharge, and agreement to hold harmless set forth in this Section 4
includes, without limitation, any Claim(s) that Xx. XxXxxxxx has, had, or may
claim to have against Releasees: (a) for wrongful termination or discharge,
negligent or intentional infliction of emotional distress, promissory estoppel,
fraudulent or negligence inducement, interference with contract or business
expectations, breach of express or implied contract of employment, termination
in violation of public policy, whistleblowing, defamation, employment-related
torts, or personal injury (whether physical or mental); (b) for any
Claim(s) arising under federal, state, or local law, including without
limitation Title VII of the Civil Rights Act of 1964, the Civil Rights Act of
1991, the Nevada Fair Employment Practices Act, or any other federal, state, or
local law prohibiting discrimination on the basis of race, color, religion, sex,
sexual orientation, age, national origin, disability, or any other protected
group status; (c) for any Claim(s) arising under the Age Discrimination in
Employment Act, which protects employees age 40 and over; (d) for any Claim(s)
for attorney’s fees and/or costs; (e) for any Claim(s) arising from or relating
in any respect to Xx. XxXxxxxx'x employment with Altair or with any Affiliate or
the termination of that employment; and (f) for any Claim(s) arising from or
relating to the Employment Agreement.
As used
herein, the term “Affiliate” shall mean and refer to any officer, director,
shareholder, employee, attorney and/or agent of Altair; and/or any direct or
indirect subsidiary, division, or affiliate of Altair (including without
limitation any officer, director, shareholder, member, employee, attorney and/or
agent of any such subsidiary, division, or affiliate); and/or any entity
(including without limitation any officer, director, shareholder, member,
employee, attorney and/or agent of such entity) in which Altair owns, directly
or indirectly, a legal or beneficial interest (whether in whole or in part);
and/or any individual or entity (including without limitation any officer,
director, member, shareholder, employee, attorney and/or agent of such entity)
that owns, directly or indirectly, a legal or beneficial interest (whether in
whole or in part) in Altair, including without limitation, Altairnano Inc., a
Nevada corporation, Altair U.S. Holdings, Inc., a Nevada corporation, and all
consolidated subsidiaries of Altair.
5. Full and Complete
Release. Xx.
XxXxxxxx understands and agrees that he is releasing and waiving Claim(s) that
he does not know exist or may exist in his favor at the time he signs this
Agreement which, if known by him, would materially affect his decision to sign
this Agreement. Nonetheless, for the purpose of implementing a full
and complete release and discharge of Releasees, Xx. XxXxxxxx expressly
acknowledges that the release set forth in Section 4 is intended to include in
its effect, without limitation, all Claim(s) which Xx. XxXxxxxx does not know or
suspect to exist in his favor and that the release set forth in Section 4
contemplates the extinguishment of any such Claim(s). Without
limiting the generality of the foregoing, Xx. XxXxxxxx expressly waives and
relinquishes all rights and benefits afforded by Section 1542 of the Civil Code
of the State of California and does so understanding and acknowledging the
significance of such specific waiver of Section 1542. Section 1542 of
the Civil Code of the State of California states as follows:
A general
release does not extend to claims which the creditor does not know or suspect to
exist in his or her favor at the time of executing the release, which if known
by him or her must have materially affected his or her settlement with the
debtor.
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Thus,
notwithstanding the provisions of Section 1542, and for the purposes of
implementing a full and complete release and discharge of Releasees, Xx.
XxXxxxxx expressly acknowledges that the release set forth in Section
4 is intended to include in its effect, without limitation, all Claim(s) which
Xx. XxXxxxxx does not know or suspect to exist in his favor at the time of
execution hereof and that the release set forth in Section 4 contemplates the
extinguishment of any such Claim(s).
6. Wages and Commissions Paid in
Full. Except as specifically set forth in Section 1 above, Xx.
XxXxxxxx acknowledges that he has received all monies due and owing to him from
Altair or any Affiliate, including without limitation any monies due and owing
to him for wages, accrued but unused vacation benefits, bonuses, commissions,
expense reimbursements, or otherwise and that he has no claim against Altair or
any Affiliate whatsoever for the payment of any further wages, commissions,
bonuses, vacation benefits, or other monies except as specifically set forth in
Section 1.
7. Restriction on
Disclosure. This Agreement is confidential information owned
by Altair. Xx. XxXxxxxx agrees that he shall not disclose the terms
of this Agreement except to the extent required by
law. Notwithstanding the foregoing, Xx. XxXxxxxx may disclose the
terms of this Agreement to his attorney and/or tax advisor. If Xx.
XxXxxxxx discloses the terms of this Agreement to his attorney and/or tax
advisor, Xx. XxXxxxxx will obtain such person’s agreement that, as a condition
of such disclosure, he or she will not disclose the terms of this Agreement
except to the extent required by law.
8. Affirmation of Employment Agreement
and Attorney Client Privilege. As a condition of his continued
employment with Altair, Xx. XxXxxxxx executed the Employment
Agreement. Xx. XxXxxxxx understands and agrees that nothing in this
Agreement limits or excuses his continuing responsibilities and obligations
under Sections 7.5 (Return of Company Property), 8 (Covenant Not to Compete), 9
(Confidential Information, Invention Assignment, Etc.), 19 (Disputes; Governing
Law; Arbitration); and any other provision of the Employment Agreement which by
its terms is intended to survive the termination of Xx. XxXxxxxx’x employment
with Altair, all as set forth more fully in the Employment
Agreement. In addition, nothing in this Agreement limits or alters
Xx. XxXxxxxx’x rights under any stock option agreement between Xx. XxXxxxxx and
Altair or limits or alters his continuing obligations under the Proprietary
Information Agreement.
Xx.
XxXxxxxx was engaged by Altair in the capacity of legal counsel and, as such,
all nonpublic information generated or communicated from or to Xx. XxXxxxxx in
the course of his employment with Altair (any such information, “Privileged
Information”) is protected by the attorney-client privilege. Altair
is the holder of such privilege and Altair has not, does not, and does not in
the future intend to waive such privilege, except that Altair, in its sole
discretion, may waive such privilege by means of a written waiver signed by an
authorized officer of Altair.
9. Irrevocable
Resignation. To the extent applicable, Xx. XxXxxxxx hereby
irrevocably resigns as an employee, officer and/or director of Altair and of all
Affiliates of Altair.
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10. Subpoena; Court Order; Other Legal
Requirement.
a. If
Xx. XxXxxxxx is requested, under the terms of a subpoena or order or other
compulsory instrument issued by or under the authority of a court or
arbitrator(s) of competent jurisdiction or by a governmental agency, or is
advised in writing by counsel for any such party that there is otherwise a legal
obligation to disclose (i) all or any part of the Privileged Information or the
Confidential Information (as defined in the Employment Agreement and, together
with the Privileged Information, referred to herein as “Confidential or
Privileged Information”), (ii) the fact that the Confidential or Privileged
Information has been made available to Xx. XxXxxxxx, or (iii) any of the terms,
conditions, or other facts with respect to Xx. XxXxxxxx’x employment with the
Altair, the services provided by Xx. XxXxxxxx to Altair, or the termination of
Xx. XxXxxxxx’x employment with Altair, Xx. XxXxxxxx agrees to, at Altair’s
expense: (1) provide Altair with prompt written notice of the existence, terms,
and circumstances surrounding such request or requirement; (2) consult with
Altair on the advisability of taking steps to resist or narrow that request; (3)
if disclosure of Confidential or Privileged Information is required, furnish
only such portion of the Confidential or Privileged Information as Xx. XxXxxxxx
is advised in writing by Altair’s counsel is legally required to be disclosed;
and (4) cooperate with Altair, at the request of Altair, and at Altair’s
expense, in its efforts to obtain an order excusing the Confidential or
Privileged Information from disclosure, or an order or other reliable assurance
that confidential treatment will be accorded to that portion of the Confidential
or Privileged Information that is required to be disclosed.
b. Except
as allowed under Section 10.a, and to the full extent allowed by law, Xx.
XxXxxxxx agrees that he shall not act as a consultant to or provide any
information to any third party or otherwise assist any third party, either
directly or indirectly, in pursuing any claim or cause of action of any kind or
nature against the Company, whether civil or criminal and whether pursued
through court, arbitration, administrative, investigatory, or other
procedures.
11. Not an
Admission. This Agreement does not constitute an admission by
either party hereto that either has violated any contract, law, or regulation or
that it or he has discriminated against the other or otherwise infringed on the
other’s rights and privileges or done any other wrongful act.
12. Entire
Agreement. Except as set forth in Section 8 and other Sections
of the Employment Agreement referenced herein, this Agreement is the entire,
integrated agreement between the parties with respect to the subject matter
hereof. No other promises or agreements have been made to Xx.
XxXxxxxx other than those contained in this Agreement.
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13. Miscellaneous. Notwithstanding
any Nevada law to the contrary, this Agreement may not be modified except by a
document signed by Altair and Xx. XxXxxxxx, whether or not any such claimed
modification is supported by separate consideration. Xx. XxXxxxxx
warrants that he has not assigned any Claim(s) released by this Agreement, or
any interest therein, to any third party. Any waiver by any party
hereto of any breach of any kind or character whatsoever by any other party,
whether such waiver be direct or implied, shall not be construed as a continuing
waiver of, or consent to, any subsequent breach of this Agreement on the part of
the other party. In addition, no course of dealing between the
parties, nor any delay in exercising any rights or remedies hereunder or
otherwise, shall operate as a waiver of any of the rights or remedies of the
parties. This Agreement shall inure to and bind the heirs, devisees,
executors, administrators, personal representatives, successors, and assigns, as
applicable, of the respective parties hereto. The section and other
headings contained in this Agreement are for the convenience of the parties only
and are not intended to be a part hereof or to affect the meaning or
interpretation hereof.
14. Severability. If
any part of this Agreement is found to be unenforceable, the other provisions
shall remain fully valid and enforceable. It is the intention and
agreement of the parties that all of the terms and conditions hereof be enforced
to the fullest extent permitted by law.
15. Attorney's Fees. If
a civil action or other proceeding is brought to enforce this Agreement, the
prevailing party shall be entitled to recover reasonable attorney's fees, costs,
and expenses incurred, in addition to any other relief to which such party may
be entitled.
16. Knowing and Voluntary
Execution. Xx. XxXxxxxx acknowledges that he has read this
Agreement carefully and fully understands the meaning of the terms of this
Agreement. Xx. XxXxxxxx acknowledges that he has signed this
Agreement voluntarily and of his own free will and that he is knowingly and
voluntarily releasing and waiving all Claim(s) that he has or may have against
Releasees.
17. Disputes; Governing Law;
Arbitration.
a. Except
as provided in Section 11 and Section 8.5 of the Employment Agreement, any
dispute concerning the interpretation or construction of this Agreement or the
Employment Agreement or any related matters, shall be resolved by confidential
mediation or binding arbitration in Reno, Nevada. The parties shall
first attempt mediation with a neutral mediator agreed upon by the
parties. If mediation is unsuccessful or if the parties are unable to
agree upon a mediator within thirty (30) days of a request for mediation by any
party, the dispute shall be submitted to arbitration pursuant to the procedures
of the American Arbitration Association (“AAA”) or other procedures agreed to by
the parties. All arbitration proceedings shall be conducted by a
neutral arbitrator mutually agreed upon by the parties from a list provided by
AAA. The decision of the arbitrator shall be final and binding on all
parties. The costs of mediation and arbitration shall be borne
equally by the parties.
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(b) This
Agreement shall be construed in accordance with and governed by the statutes and
common law of the State of Nevada (other than any provisions that would cause
the provisions of any other laws to apply). To the extent this
Agreement expressly permits any dispute to be resolved other than through
arbitration or mediation, except as set forth in Section 8.5 of the Employment
Agreement, the exclusive venue for any such action shall be the state and
federal courts located in Reno, Nevada, and the parties each hereby submit to
the jurisdiction of such courts for purposes of this Agreement and the
Employment Agreement.
18. Counterparts;
Facsimile. This Agreement may be executed in multiple
counterparts, all of which taken together shall form a single
Agreement. A facsimile copy of this Agreement or any counterpart
thereto shall be valid as an original.
19. Opportunity to Consult with
Counsel. Xx.
XxXxxxxx further acknowledges that he has been advised by this Agreement, and
has had the opportunity if he so chooses, to consult with an attorney of his
choice prior to signing this Agreement. Each party agrees that
he or it shall be solely responsible for any attorney's fees incurred by that
party in the negotiation and execution of this Agreement.
[Intentionally
left blank; signature page follows]
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In
witness thereof, duly authorized and intending to be bound, Xx. XxXxxxxx and
Altair have each executed this Separation Agreement and Release of All
Claims.
"Xx. XxXxxxxx" | |
DATED: September 5, 2008 | /s/ Xxxxxxx X. XxXxxxxx |
Xxxxxxx X. XxXxxxxx | |
"Altair"
Altair
Nanotechnologies, Inc.
A
Canadian corporation
|
|
DATED: September 5, 2008 | By: /s/ Xxxx Xxxxxxx |
Its: Chief Financial Officer |
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