SEPARATION AGREEMENT AND RELEASE OF ALL CLAIMS
Exhibit 10.1
SEPARATION
AGREEMENT AND RELEASE OF ALL CLAIMS
THIS
SEPARATION AGREEMENT AND RELEASE OF ALL CLAIMS (the “Agreement”) is entered into
between Altair Nanotechnologies, Inc., a Canadian corporation (“Altair”), and
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, PhD (“▇▇. ▇▇▇▇▇▇▇”), an individual.
Definitions
▇▇.
▇▇▇▇▇▇▇: As used herein, the term “▇▇. ▇▇▇▇▇▇▇” shall mean and
refer to ▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
Affiliate: 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, or division of Altair (including without limitation any
officer, director, shareholder, member, employee, attorney and/or agent of any
such subsidiary, or division); 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.
Background
Pursuant
to the Altair Executive Employment Agreement entered into between ▇▇. ▇▇▇▇▇▇▇,
Altair and Altair Nanomaterials, Inc. as of February 17, 2006, as amended by an
Amendment dated August 17, 2007 (the “Employment Agreement”), ▇▇. ▇▇▇▇▇▇▇ served
as the Chief Executive Officer and President of Altair and its various
subsidiaries, and he rendered services to Altair and Altair Nanomaterials,
Inc. Altair has terminated ▇▇. ▇▇▇▇▇▇▇’▇ employment with Altair and
its Affiliates pursuant to Section 6.2 of the Employment Agreement, which allows
▇▇. ▇▇▇▇▇▇▇ to receive certain separation benefits, all as more fully set forth
in the Employment Agreement, said termination effective March 14, 2008 (the
“Termination Date”). To resolve certain disputes, if any, between
them arising from ▇▇. ▇▇▇▇▇▇▇’▇ employment with Altair and the termination of
that employment, and to clarify certain ambiguities in the Employment Agreement
and other documents concerning the terms of ▇▇. ▇▇▇▇▇▇▇'▇ employment with and
compensation from Altair, Altair and ▇▇. ▇▇▇▇▇▇▇ hereby agree as
follows:
Agreement
1. Payment to ▇▇.
▇▇▇▇▇▇▇. Pursuant to the terms of the Employment Agreement,
and in exchange for ▇▇. ▇▇▇▇▇▇▇’▇ execution of this Agreement and the covenants
and promises contained herein, Altair shall pay ▇▇. ▇▇▇▇▇▇▇ the separation
payments as more fully set forth in Section 7.3 of the Employment Agreement (as
the same are modified and clarified hereby).
Page 1 of
8
a. To
effectuate ▇▇. ▇▇▇▇▇▇▇’▇ continued participation in the company health benefit
plan, as contemplated by Section 7.3 of the Employment Agreement, ▇▇. ▇▇▇▇▇▇▇
has completed and returned 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 ▇▇.
▇▇▇▇▇▇▇. Said health benefit coverage shall continue until the
earlier of (a) twelve (12) months from the Termination Date; or (b) the date ▇▇.
▇▇▇▇▇▇▇ first becomes eligible for coverage under any group health plan
maintained by another employer of ▇▇. ▇▇▇▇▇▇▇ or his spouse. Nothing
herein shall be deemed to extend the otherwise applicable maximum period in
which COBRA continuation coverage may be provided under the plan
provisions. Altair shall be solely responsible for payment of the
premium payments required to be paid to ensure maintenance of ▇▇. ▇▇▇▇▇▇▇'▇
COBRA continuation coverage under the plan and shall promptly reimburse ▇▇.
▇▇▇▇▇▇▇ for any payments he may himself be required to make to ensure the
coverage.
b. If
▇▇. ▇▇▇▇▇▇▇ 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 ▇▇. ▇▇▇▇▇▇▇ an amount equal to
the premium payments that Altair would have paid on behalf of ▇▇. ▇▇▇▇▇▇▇ 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.
2. Review and
Revocation. ▇▇. ▇▇▇▇▇▇▇ understands and agrees that he has 21
days from the date he receives this Agreement to consider the terms of and to
sign this Agreement. ▇▇. ▇▇▇▇▇▇▇ understands that, in his sole and
absolute discretion, ▇▇. ▇▇▇▇▇▇▇ may sign this Agreement prior to the expiration
of the 21-day period.
▇▇.
▇▇▇▇▇▇▇ 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 the Agreement shall not become effective or enforceable until
the 7-day revocation period has expired. To revoke this Agreement,
▇▇. ▇▇▇▇▇▇▇ must give written notice stating that he wishes to revoke the
Agreement to ▇▇▇▇ ▇▇▇▇▇▇▇, Chief Financial Officer, Altair Nanotechnologies,
Inc., ▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, Facsimile No. (▇▇▇)
▇▇▇-▇▇▇▇. If ▇▇. ▇▇▇▇▇▇▇ mails a notice of revocation to Altair, it
must be postmarked no later than 7 days following the date on which ▇▇. ▇▇▇▇▇▇▇
signed this Agreement (not counting the day it was signed) or such revocation
shall not be effective.
3. Payment After Revocation
Period.
a.
▇▇. ▇▇▇▇▇▇▇ understands and agrees that the payments in the total amount of
$425,000, based upon his annual salary will be paid pursuant to Section 7.3(i)
of the Employment Agreement and Section 1 above in equal installments every two
weeks commencing on Altair’s next regular payroll following the expiration of
the 7-day revocation period set out in Section 2, above.
Page 2 of
8
b. The
parties desire to clarify their rights and obligations under Section 7.3(iii) of
the Employment Agreement, and accordingly, agree as follows (which provisions
shall supersede the terms of Section 7.3(iii) of the Employment
Agreement): Altair shall pay a single lump-sum payment of $240,000
within ten business days following the expiration of the 7-day revocation period
set out in Section 2, above.
4. Rights to Exercise Vested Stock
Options. During the course of his employment with Altair, ▇▇.
▇▇▇▇▇▇▇ was granted certain options to purchase shares of the stock of Altair
Nanotechnologies Inc. (the "Options"), which Options are set forth in Exhibit A
hereto. For purposes of calculating option-exercise, vesting and
early-termination periods only, and notwithstanding ▇▇. ▇▇▇▇▇▇▇'▇ agreement to
resign as a director of Altair pursuant to Section 12 of this Agreement, the
date of termination of ▇▇. ▇▇▇▇▇▇▇'▇ service for purpose of the option-exercise,
vesting and early-termination periods of the Options will be considered to be
May 29, 2008. Other than as expressly set forth in the preceding
sentence, nothing in this Agreement or Exhibit A shall alter or amend any term
or condition of any of the Options, including without limitation, terms
providing for the early termination of said Options a specified time period
following the date the optionee ceases to provide services to
Altair.
5. Release of All
Claims. In consideration of the payments stated in Sections 1
and 3, above, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, ▇▇. ▇▇▇▇▇▇▇, 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 whether
direct or indirect, liquidated or unliquidated, known or unknown, which ▇▇.
▇▇▇▇▇▇▇ had, has, or may claim to have against Releasees arising prior to the
date of this Agreement (hereinafter collectively referred to as
“Claim(s)”).
The
release, discharge, and agreement to hold harmless set forth in this Section 5
includes without limitation any Claim(s) that ▇▇. ▇▇▇▇▇▇▇ 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
▇▇. ▇▇▇▇▇▇▇'▇ 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.
The
release, discharge and agreement to hold harmless set forth in this Section 5
shall not abrogate, limit, or reduce ▇▇. ▇▇▇▇▇▇▇'▇ rights to indemnification and
advancement of expenses, if any, pursuant to the By-Laws of Altair, the Canada
Business Corporations Act, and other applicable law.
Page 3 of
8
6. Full and Complete
Release. ▇▇. ▇▇▇▇▇▇▇ 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, ▇▇. ▇▇▇▇▇▇▇ expressly acknowledges that the release set forth in
Section 5 is intended to include in its effect, without limitation, all Claim(s)
which ▇▇. ▇▇▇▇▇▇▇ does not know or suspect to exist in his favor and that the
release set forth in Section 5 contemplates the extinguishment of any such
Claim(s).
7. Wages and Commissions Paid in
Full. Except (1) as specifically set forth in Sections 1 and 3
above, and (2) for ▇▇. ▇▇▇▇▇▇▇'▇ final expense reimbursement requests (to be
submitted to Altair on or before April 21, 2008 and which Altair agrees to
process and pay pursuant to its regular expense-reimbursement policy), ▇▇.
▇▇▇▇▇▇▇ 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
Sections 1 and 3 of this Agreement.
8. Restriction on
Disclosure. This Agreement is confidential information owned
by Altair. ▇▇. ▇▇▇▇▇▇▇ agrees that, unless and until such time as the
terms of this Agreement are disclosed in a public filing or release by Altair,
he shall not disclose the terms of this Agreement except to the extent required
by law. Notwithstanding the foregoing, ▇▇. ▇▇▇▇▇▇▇ may disclose the
terms of this Agreement to his wife, his immediate family, his attorneys and/or
his tax advisors. If ▇▇. ▇▇▇▇▇▇▇ discloses the terms of this
Agreement to his attorneys and/or tax advisors, ▇▇. ▇▇▇▇▇▇▇ 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.
9. Nondisparagement by
Altair. To the full extent allowed by law, Altair covenants
that, as an agreed on material term of this Agreement, it will not make any
disparaging remarks about ▇▇. ▇▇▇▇▇▇▇ and shall refrain from saying or doing
anything that could in any way hold ▇▇. ▇▇▇▇▇▇▇ up to disrepute in the eyes of
any other person or entity or that could in any way interfere with ▇▇. ▇▇▇▇▇▇▇’▇
ability to obtain or maintain gainful employment. For purposes of
this Section 9, remarks of Altair shall only include remarks made or actions of
Altair taken by Altair’s President, any member of the Board of Directors of
Altair, Altair’s Chief Financial Officer and any “Level 12” executive officer of
Altair. ▇▇. ▇▇▇▇▇▇▇ shall direct all requests for employment
information or references to ▇▇▇▇ ▇▇▇▇▇▇▇, who shall provide only ▇▇. ▇▇▇▇▇▇▇’▇
dates of employment and position held except as otherwise required by
law. Notwithstanding the foregoing, nothing set forth in this Section
9 shall prohibit Altair from enforcing its rights under this Agreement or the
surviving provisions of the Employment Agreement, from complying with lawfully
issued legal process or from initiating, prosecuting or defending any claims
Altair or its Affiliates may have, or come to have, against ▇▇.
▇▇▇▇▇▇▇. The provisions of this Section 9 shall survive for a period
of two (2) years.
Page 4 of
8
10. Nondisparagement by ▇▇.
▇▇▇▇▇▇▇. To the full extent allowed by law, ▇▇. ▇▇▇▇▇▇▇
covenants that, as an agreed on material term of this Agreement, he will not
make any disparaging remarks about any Altair or any Affiliate and shall refrain
from saying or doing anything that could in any way hold Altair or any Affiliate
up to disrepute in the eyes of any other person or entity or that could in any
way interfere with the current or future business plans or activities of Altair
or of any Affiliate. Notwithstanding the foregoing, nothing set forth
in this Section 10 shall prohibit ▇▇. ▇▇▇▇▇▇▇ from enforcing his rights under
this Agreement or the surviving provisions of the Employment Agreement, from
complying with lawfully issued legal process or from initiating, prosecuting or
defending any claims (other than claims released and discharged pursuant to
Section 5) he may have, or come to have, against Altair or its
Affiliates). The provisions of this Section 10 shall survive for a
period of two (2) years.
11. Affirmation of Employment
Agreement. As a condition of his employment with Altair, ▇▇.
▇▇▇▇▇▇▇ executed the Employment Agreement. ▇▇. ▇▇▇▇▇▇▇ 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), 10
(Inventions), 20 (Disputes; Governing Law; Arbitration); and any other provision
of the Employment Agreement which by its terms is intended to survive the
termination of ▇▇. ▇▇▇▇▇▇▇’▇ employment with Altair, all as set forth more fully
in the Employment Agreement. In addition, except as specifically set
forth above in Section 4, above, nothing in this Agreement limits or alters ▇▇.
▇▇▇▇▇▇▇’▇ rights under any stock option agreement between ▇▇. ▇▇▇▇▇▇▇ and
Altair.
12. Irrevocable
Resignation. To the extent applicable, effective as of the
date of this Agreement, ▇▇. ▇▇▇▇▇▇▇ hereby irrevocably resigns as an officer
and/or director of Altair and/or of any Affiliate.
13. Subpoena; Court Order; Other Legal
Requirement.
a. If
▇▇. ▇▇▇▇▇▇▇ 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 Confidential Information (as
defined in the Employment Agreement), (ii) the fact that the Confidential
Information has been made available to ▇▇. ▇▇▇▇▇▇▇, or (iii) any of the terms,
conditions, or other facts with respect to ▇▇. ▇▇▇▇▇▇▇’▇ employment with the
Altair, the services provided by ▇▇. ▇▇▇▇▇▇▇ to Altair, or the termination of
▇▇. ▇▇▇▇▇▇▇’▇ employment with Altair, ▇▇. ▇▇▇▇▇▇▇ 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; and
(3) cooperate with Altair, at the request of Altair, and at Altair’s expense, in
its efforts to obtain an order excusing the Confidential Information from
disclosure, or an order or other reliable assurance that confidential treatment
will be accorded to that portion of the Confidential Information that is
required to be disclosed.
b. Except
as allowed under Section 13.a, and to the full extent allowed by law, ▇▇.
▇▇▇▇▇▇▇ 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,
concerning events occurring during ▇▇. ▇▇▇▇▇▇▇'▇ employment with the Company,
unless he is compelled to do so by lawfully issued legal process.
Page 5 of
8
14. 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.
15. Entire
Agreement. Except as set forth in Section 9, 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 ▇▇.
▇▇▇▇▇▇▇ other than those contained in this Agreement.
16. Miscellaneous. Notwithstanding
any conflict of laws provisions to the contrary, this Agreement shall be
governed by the laws of the State of Nevada. Notwithstanding any
Nevada law to the contrary, this Agreement may not be modified except by a
document signed by Altair and ▇▇. ▇▇▇▇▇▇▇, whether or not any such claimed
modification is supported by separate consideration. ▇▇. ▇▇▇▇▇▇▇
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.
17. 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.
18. Attorneys’ 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.
19. Knowing and Voluntary
Execution. ▇▇. ▇▇▇▇▇▇▇ acknowledges that he has read this
Agreement carefully and fully understands the meaning of the terms of this
Agreement. ▇▇. ▇▇▇▇▇▇▇ 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.
20. Opportunity to Consult with
Counsel. ▇▇.
▇▇▇▇▇▇▇ 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.
Page 6 of
8
|
|
“▇▇.
▇▇▇▇▇▇▇”
|
|
DATED:
April 17, 2008
|
/s/ ▇▇▇▇
▇▇▇▇▇▇▇
|
|
▇▇▇▇
▇▇▇▇▇▇▇
|
|
|
“Altair”
|
|
|
Altair
Nanotechnologies, Inc.
|
|
|
A
Canadian corporation
|
|
|
DATED:
April 18, 2008
|
By:
/s/ ▇▇▇▇▇
▇▇▇▇▇▇▇▇
|
|
|
Its:
President
|
Page 7 of
8
Exhibit
A
To
Separation
Agreement and Release of All Claims
|
Shares
|
Exercise
|
Date
of
|
Expiry
|
Outstanding
Unexercised
|
||||
|
Description
|
Granted
|
Price
|
Grant
|
Date*
|
Total
|
Vested
|
Vesting*
|
|
|
Options
- 1998 Plan
|
300,000
|
1.0200
|
8/16/2004
|
8/16/2014
|
300,000
|
200,000
|
100,000
vest if market price equals or exceeds $2.50 for at least 15 consecutive
trading days from 8/16/04 to 8/16/05, 100,000 vest if market price equals
or exceeds $3.50 for at least 15 consecutive trading days from 8/16/04 to
8/16/06, 100,000 vest if market price equals or exceeds $4.50 for at least
15 consecutive trading days from 8/16/04 to 8/16/09
|
|
|
Options
- 1998 Plan
|
100,000
|
3.6200
|
4/8/2005
|
4/8/2015
|
100,000
|
100,000
|
All
vest on 4/8/06
|
|
|
Options
- 2005 Plan
|
66,802
|
3.4200
|
3/10/2006
|
3/10/2016
|
66,802
|
66,802
|
Vested
on date of grant
|
|
|
Options
- 2005 Plan
|
100,000
|
3.4200
|
3/10/2006
|
3/10/2016
|
100,000
|
75,000
|
25%
vest on each of 3/10/06, 3/10/07, 3/10/08 and 3/10/09
|
|
|
Options
- 2005 Plan
|
99,672
|
2.6300
|
1/15/2007
|
1/15/2017
|
99,672
|
99,672
|
Options
vest on date of grant
|
|
|
Options
- 2005 Plan
|
200,000
|
2.6300
|
1/15/2007
|
1/15/2017
|
200,000
|
133,332
|
33%
vest on date of grant, 33% on 1/15/08, 34% on 1/15/09
(66,666,66,666,66,668)
|
|
|
Options
- 2005 Plan
|
283,000
|
3.7200
|
1/15/2008
|
1/15/2018
|
283,000
|
0
|
70,750
vest on 1/15/2009, 70,750 vest on 1/15/2010, 70,750 vest on 1/15/2011, and
70,750 vest on 1/15/2012
|
|
|
Total
Stock Option
|
1,149,474
|
674,806
|
||||||
|
*
Nothing in this Exhibit A shall alter any provisions of the governing
option agreement or plan providing that
|
||||||||
|
an
option ceases to vest, or termination a specified time period after, the
termination of the optionee's service
with
the company, as such agreements or plans may be modified by Section 4 of
this Agreement (specifically,
that
the date of termination of ▇▇. ▇▇▇▇▇▇▇'▇ employment and/or service shall
be considered to be May 29, 2008).
|
||||||||
Page
8 of 8