This Agreement sets forth the terms and conditions pursuant to which the Employee is
separating from employment with the Company.
of Employment. In consideration of the foregoing, and for other
good and valuable consideration, the sufficiency of which is hereby acknowledged, the Employee
shall separate from employment with the Company effective June 30, 2007 (the “Separation Date”) and
shall resign his position as vice president of finance, treasurer, secretary and chief financial
officer effective as of June 4,2007.
2. Severance Pay. From the day immediately following the Separation Date
November 30,2007 (the “Severance Period”), the Company will pay Employee an amount equal to the
base salary at the rate as of the Separation Date ($7,846.15 per pay period) that
Employee would have received had Employee remained in the employ of the Company during the
Severance Period on a full-time basis, less all ordinary deductions for local, state and federal
taxes which are required by law to be withheld and any other deductions previously authorized by
Employee related to participation in employee benefit plans in which
Employee is enrolled as
of the Separation Date, as discretionary severance pay (“Severance Pay”), which amount shall
be distributed in accordance with the Company’s regular payroll schedule. If at the end of the
Severance Period, Employee is without employment and not self-employed whereby self-employment
equals or exceeds an amount that reasonably replaces the “Severance Pay”, the Company will pay
Employee additional Severance Pay on a month-by-month basis for a period not to exceed the earlier
of 3 months or such time as Employee has found full-time employment or becomes
self-employed, as described immediately above, provided that the Employee can demonstrate to the
Company’s satisfaction that he has made reasonable efforts to obtain employment.
3. Group Health Insurance Benefits. From the Separation Date through the earliest
of (i) the end of the Severance Period, as it may be extended per Section 2 above, or
(ii) the date on which Employee becomes covered as the primary insured under another
group health plan with no pre-existing condition limitation or exclusion, Employee shall be
entitled to Company paid group heath insurance coverage under the Company’s group health insurance
plan (as such plan, and employee benefit cost sharing structure, is then in effect and as it may be
amended at any time and from time to time during the period of
coverage). Employee agrees to notify
the Company if prior to the end of the Severance Period, as it may be extended per Section 2 above,
Employee becomes covered as the primary insured under another group health plan with no pre-
existing condition limitation or exclusion. The
period during which Employee is being provided with health insurance pursuant to this
Agreement shall be credited against Employee’s period of COBRA coverage, if any. If Employee is
entitled to continuing health insurance coverage under COBRA, the costs associated with Employee’s
election of COBRA benefits after termination of any health insurance coverage provided by the
Company pursuant to this Agreement shall be the Employee’s responsibility.
4. Stock Options. Vesting of stock options held by Employee will cease on June 1,
2007 in accordance with the Company’s stock option agreements and plan. The Company extends the
option deadline for exercise by Employee until December 31,2007.
5. No Further Obligations. Except for the obligations expressly set forth in this
Agreement, the Company shall make no further payments or contributions on behalf of the Employee or
Employee’s family members, whether for salary, vacation, sick days, life insurance, long term
disability insurance or any other form of insurance or for any other compensation or benefits
following the Separation Date.
. For and in consideration of the Severance Pay, the payments and other benefits
provided for in this Agreement, and the other covenants of the Company made herein, Employee agrees
that by executing this Agreement Employee does hereby, on behalf of Employee, Employee’s heirs,
executors, administrators, representatives, successors and assigns, irrevocably and unconditionally
release and forever discharge the Company, all affiliated or related entities, successors,
predecessors, assigns or representatives, and any present and former officers, directors, trustees,
board members, employees, agents, attorneys, and insurers, and all persons acting for, by, through,
under or in concert with any of them (hereinafter “Released Parties”), of and from any and all
claims, demands, liabilities, actions, causes of action, rights, obligations, suits, debts,
accounts, claims for attorneys’ fees, interest, expenses and costs, damages, judgments, and
executions of any nature whatsoever, which Employee, Employee’s heirs, executors, administrators,
representatives, successors, or assigns, had, now have, or may hereafter have, from the beginning
of time to the date hereof, against any of the Released Parties, whether based on federal or state
statute, common law, rule or regulation, whether in law or in equity, contract or tort, whether
liquidated or unliquidated, whether known or unknown, related to Employee’s employment with the
Company and/or the termination therefrom. This general release includes but is not limited to
claims arising out of or in connection with: (i) any allegation that the Company wrongfully or
unlawfully terminated, discharged, or laid off Employee; (ii) any allegation of violation of the
Age Discrimination in Employment Act, the Americans with Disabilities Act, Title VII of
the Civil Rights Act of 1964, as amended, the Civil Rights Acts of 1866, 1871, and 1991, including Sections 1981 and 1983 of the Civil Rights Act, the Worker’s Adjustment and Retraining Notification Act, the National Labor
Relations Act, the Rehabilitation Act of 1973, the Corporate and Criminal Fraud Accountability Act
of 2002, Title VIII of the Xxxxxxxx-Xxxxx Act of 2002, the Illinois
Human Rights Act,
and the Illinois
Whistleblower Act; (iii) any allegation of defamation, intentional or
negligent infliction of emotional distress, workplace harassment, discrimination, or retaliation,
invasion of privacy, violation of public policy, negligence, or any other tort; (iv) any allegation
of a breach of any contract of employment, express or implied, or of a violation of any Company
policy or procedure, the provisions of the Constitution of the United States or of any other state,
and/or any other law, rule, regulation or ordinance pertaining to employment and/or the termination
of employment; and/or (v) any other statutory or common law cause of action. This release is not
intended to release any claim arising out of any breach by the Company of any of the
terms and conditions of this Agreement, Employee’s right to challenge the validity of this
Agreement, or any claims that cannot be waived or released as a matter of law.
7. Covenant Not To Xxx. Employee covenants and agrees that Employee will not file any lawsuit
against any of the Released Parties with respect to any claims that Employee
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may have up to and including the date of this Agreement. The Parties agree that to the extent,
if any, Employee may have an unwaivable right to file or participate in a claim or charge against
any of the Released Parties, this Agreement shall not be intended to waive such a right. However,
even if Employee has a right to file or participate in a claim or charge against any of the
Released Parties, Employee agrees that Employee shall not obtain, and hereby waives Employee’s
right to, any relief of any kind from such a claim or charge.
8. No Admission. Employee understands and agrees that the payment of monies and
other consideration set forth in this Agreement does not constitute an admission of liability or
violation of any applicable law, regulation, or agreement, and in fact the Released Parties
expressly deny any such liability or violation.
9. Return of Property. Employee agrees, to the extent Employee has previously
failed to do so, to return immediately all documents, reports, files, financial information,
customer lists, keys, credit cards, keycards, employee identification cards, pagers, remote
computer access tokens, computers, programs, software and discs, including, but not by way of
limitation, those programs, software, and discs generated during Employee’s employment with the
Company, and all other items which are the property of the Company, or contain information which
belongs to the Company or any of the Released Parties. Employee agrees that Employee will not
retain any copies, duplicates, reproductions or excerpts of any of the foregoing.
10. Confidentiality of Agreement. Employee agrees to keep the terms and existence of this
Agreement strictly confidential and agrees that Employee will not
disclose to anyone (including but not limited to any current or former employee of the
Company) any information concerning the existence and terms of this Agreement or the negotiations
specifically leading to this Agreement, except as may be required to consult with legal counsel or
for tax or accounting consultation or advice or unless required to do so by court order
or subpoena, or as otherwise required by law. Employee assumes responsibility for any disclosure by
anyone Employee informs, pursuant to this paragraph, about the existence and terms of this
Agreement or the negotiations specifically leading to this Agreement. Employee further acknowledges
and agrees that the covenants made in this paragraph are material to this Agreement, and violation
of the terms of this paragraph by Employee will result in damages to the Company which are
difficult to assess. In such an event, pursuit of both monetary and injunctive relief are
appropriate, and that the Company’s entitlement to injunctive relief shall be in addition to any
11. Proprietary Information. Employee hereby agrees that Employee shall not use
for Employee’s own benefit or for the benefit of any third party, nor shall Employee disclose to
any third party any proprietary, non-public, or otherwise confidential information of or regarding
the Company or its operations, products, manufacturing processes or procedures, services, financial
information, data, or reports, pricing, customers, prospective customers, suppliers, or employees,
computer programs, marketing information and procedures, including but not limited to sales,
pricing policies, operational methods, business plans and plans for future development, and other
business information which is not readily available to the public.
12. Prior Agreements. Employee affirms Employee’s awareness of and obligations under
Employee’s Agreement with the Company dated October 22, 2003 and his Employment Offer dated October
1, 2003, including but not limited to, the non-competition,
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non-solicitation and confidentiality covenants contained therein. Employee acknowledges that his
obligations under these agreements survive the termination of his employment with the Company.
13. Non-Disparagement. Employee agrees that Employee will not say, write or cause
to be said or written any statement that is, directly or indirectly (by implication or otherwise),
disparaging to the Company.
14. No Reemployment. Employee agrees to waive any employment rights with any of the Released
Parties that Employee might otherwise have now or in the future, including reinstatement or
reemployment. Employee agrees that Employee will not apply for employment with the Company or with
any of its divisions, subsidiaries, or successors, at any time in the future.
15. Compensation Paid. Employee acknowledges that he is not entitled to any
other compensation except as specifically set forth in this Agreement.
16. Prior Charges or Complaints. Employee represents that if Employee has filed, with any
administrative agency or court, any complaint or charge against the Company or any of the Released
Parties involving any events up to and including the date of this Agreement, Employee has disclosed
such complaint or charge, in writing, to the Company’s Human Resources Department.
17. Non-Assignment. Employee represents that Employee has not assigned or otherwise
transferred to any party any claim that is being released pursuant to this Agreement.
18. Outstanding Expenses and Other Advances. Employee represents that Employee has
submitted all outstanding expenses and has cleared all advances. Employee acknowledges that any
advances that are unaccounted for shall be offset against the Severance Pay described above.
19. No Other Promises. Employee represents that in executing this Agreement, no
promise or inducement has been made to Employee except as set forth in this Agreement and that
Employee is entering into this Agreement without any threat or coercion and without reliance on any
statement or representation, written or oral, made by any person representing the Company, except
as expressly set forth in this Agreement.
Agreement. This Agreement constitutes the entire and complete agreement
between the parties. No other promises or agreements, either express or implied, shall be binding
unless in writing and signed by all parties.
21. Severability. Each of the terms of this Agreement is deemed severable in whole
or in part and if any term or provision, or the application
thereof, in any circumstance should be illegal, invalid, or unenforceable, the remaining terms and
provisions shall not be affected thereby and shall remain in full force and effect.
22. Governing Law
. Except to the extent preempted by federal law, this Agreement
is made and entered into in the State of Illinois
and in all respects the rights and obligations of
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the parties shall be interpreted, enforced, and governed in accordance with the laws of the State
which are applicable to contracts made and to be performed in that state and without
regard to the principles of conflict of laws. Any and all lawsuits, legal actions or proceedings
against either party arising out of this Agreement or Employee’s employment with the Company shall
be brought in any court of appropriate jurisdiction sitting in the City of Chicago, Illinois
each party hereby submits to and accepts the exclusive jurisdiction of such courts for the purpose
of such suit, legal action or proceeding. Each party hereby irrevocably waives any
objection it may now have or hereafter have to this choice of venue of any suit, legal action or
proceeding in any such court and further waives any claim that any suit, legal action
or proceeding brought in any such court has been brought in an inappropriate forum.
23. Successors and Assigns. This Agreement shall be binding on and inure to the
benefit of the parties and their legal representatives, transferees, successors and assigns.
24. Employee Acknowledgement. Employee acknowledges that Employee has entered into this
Agreement freely and voluntarily, and that Employee has had adequate time to read this Agreement
and to consult with Employee’s attorney on its terms and to reflect upon the consequences of
Employee’s execution thereof. Employee acknowledges that the Company offered Employee twenty-one
(21) days within which to consider this Agreement, and that the Company advises
Employee to consult with an attorney prior to executing this Agreement. The Parties agree that the
twenty-one day period started on the date that Employee first received this Agreement from the
Company, and that any changes made to the Agreement since that date, whether material or
immaterial, have not restarted the running of the twenty-one day period. Further, Employee
is advised that Employee has seven (7) days following Employee’s
execution of the Agreement to revoke it, and this Agreement shall not become effective or
enforceable until this seven-day revocation period has expired. Any such revocation must be in
writing and delivered to Xxxxxxx X. Xxxxxxx, President and Chief Executive Officer at
Nanosphere, Inc., 0000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx, 00000,
within such seven-day period. In the event Employee exercises Employee’s right
of revocation, this Agreement shall be null and void.
||June 4, 2007
||June 4, 2007
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