SEVERANCE AGREEMENT AND COVENANTS
1.
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PARTIES.
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The
parties to this Severance Agreement and Covenants (hereinafter “Agreement”)
are
Xxxxxxx X. Xxxxxx (“X. Xxxxxx”) and Biophan Technologies, Inc., a Nevada
corporation (“Biophan”).
1.1 |
X.
XXXXXX.
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For
the
purposes of this Agreement, X. Xxxxxx means X. Xxxxxx, X. Xxxxxx’x heirs,
executors, administrators, assigns, and spouse (as applicable).
1.2 |
BIOPHAN.
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For
purposes of this Agreement “Biophan” means Biophan, and all subsidiaries, and
other business entities thereof, all predecessors and successors of each, and
all of each entity’s
officers, shareholders, directors, employees, agents, or assigns, in their
individual and representative capacities.
2.
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BACKGROUND
AND PURPOSE.
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X.
Xxxxxx
was employed by Biophan pursuant to an employment agreement dated December
1,
2000 (the “Employment Agreement”). X. Xxxxxx’x employment ended effective
October 3, 2007 (the “Termination Date”). The parties are entering into this
Agreement to define the severance relationship and to settle fully and finally,
any and all claims X. Xxxxxx may have against Biophan, whether asserted or
not,
known or unknown, including, but not limited to, claims arising out of or
related to X. Xxxxxx’x Employment Agreement, employment, claim for reemployment,
termination or any other claims whether asserted or not, known or unknown,
past
or future, that relate to X. Xxxxxx’x employment, termination, reemployment, or
application for reemployment.
3. |
ACKNOWLEDGEMENTS
AND REPRESENTATIONS.
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3.1 |
PAYMENT.
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As
full
and final payment for all amounts due to X. Xxxxxx, he shall be paid the sum
of
$100,000 (the “Severance Payment”) and shall be issued $250,000 in shares of
common stock, par value $0.005, of the Company (the “Severance Stock”). The
Severance Payment shall be paid, and the Severance Stock shall be issued, to
X.
Xxxxxx in accordance with Schedule A attached hereto. X. Xxxxxx acknowledges
and
agrees that, notwithstanding anything contained in the Employment Agreement
to
the contrary, he has been paid all earned salary, bonuses or other payments
that
may be owed through the Termination Date and no other amounts are due to him
under the Employment Agreement.
Notwithstanding
the foregoing, X. Xxxxxx shall be entitled to receive payment with respect
to
any vacation which may have been accrued, but remain unused, prior to the
Termination Date. In addition, X. Xxxxxx shall be entitled to continue to
receive all employee fringe benefits currently provided to him for a period
of
one (1) year from the date hereof.
3.2 |
REGISTRATION
RIGHTS.
|
Biophan
hereby agrees that X.
Xxxxxx
will be
entitled to “piggy-back” registration rights with respect to the Severance
Stock, on any registration statement filed by Biophan, the number of shares
proposed to be registered and subject to any limitations pursuant to Rule 415
under
the
Securities Act of 1933, as amended (the “Securities Act”).
Biophan
shall notify X. Xxxxxx in writing at least twenty (20) days prior to filing
any
registration statement under the Securities Act, for purposes of effecting
a
public offering of securities of Biophan and will afford X. Xxxxxx an
opportunity to include in such registration statement all or any part of the
Severance Stock. If X. Xxxxxx desires to include in any such registration
statement all or any part of the Severance Stock X. Xxxxxx shall, within ten
(10) days after receipt of the above-described notice from Biophan, so notify
Biophan in writing, and in such notice shall inform Biophan of the number of
shares of the Severance Stock he wishes to include in such registration
statement. If X. Xxxxxx decides not to include all of his Severance Stock in
any
registration statement thereafter filed by Biophan, X. Xxxxxx shall continue
to
have the right to include his Severance Stock in any subsequent registration
statement or registration statements as may be filed by Biophan with respect
to
offerings of its securities, all upon the terms and conditions set forth
herein.
3.3 |
EMPLOYEE
BENEFITS.
|
X.
Xxxxxx
acknowledges and agrees that he has received information regarding his rights
to
health insurance continuation and retirement benefits. To the extent X. Xxxxxx
has such rights, nothing in this Agreement will impair those rights.
3.4 |
EMPLOYMENT
AGREEMENT COVENANTS.
|
X.
Xxxxxx
acknowledges and agrees that under the Employment Agreement, he is bound by
covenants related to confidentiality and non-solicitation of employees. X.
Xxxxxx understands that Biophan retains the right to enforce its rights under
these and other provisions of the Employment Agreement.
4. |
RELEASES.
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4.1 |
X.
XXXXXX’X RELEASE.
|
X.
Xxxxxx
waives, acquits, forever discharges and hereby releases Biophan from any and
all
claims, demands, actions, or causes of action, whether known or unknown, arising
from or related in any way to any employment of or past or future failure or
refusal to employ X. Xxxxxx by Biophan, or any other past or future claim
(except as reserved by this Agreement or where expressly prohibited by law)
that
relates in any way to X. Xxxxxx’x employment, employment contract, any
termination, compensation, benefits, reemployment or application for employment,
with the exception of any claim either party may have for enforcement of this
Agreement. This release includes any and all claims, direct or indirect, which
might otherwise be made under any applicable local, state or federal authority,
including but not limited to any claim arising under the state or local statutes
where X. Xxxxxx was employed by Biophan dealing with employment, discrimination
in employment, Title VII of the Civil Rights Act of 1964, the Civil Rights
Act
of 1991, the Americans With Disabilities Act, the Family and Medical Leave
Act
of 1993, the Equal Pay Act of 1963, Executive Order 11246, the Rehabilitation
Act of 1973, the Uniformed Services Employment and Reemployment Rights Act
of
1994, the Age Discrimination in Employment Act, the Older Workers Benefit
Protection Act, the Fair Labor Standards Act, wage and hour statutes of the
state where employed, all as amended, any regulations under such authorities,
or
any other applicable statutory contract, tort, or common law theories, except
that X. Xxxxxx does not release Biophan from its obligations under this
Agreement, its contribution and indemnification obligations, if any, or from
any
coverage under any policy of insurance providing indemnity and related costs
for
the benefit of X. Xxxxxx.
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4.2 |
BIOPHAN’
RELEASE.
|
Biophan
waives, acquits, forever discharges and hereby releases X.
Xxxxxx from
any
and all claims, demands, actions, or causes of action, whether known or unknown,
arising from or related in any way to any employment of X. Xxxxxx by Biophan,
or
any other past or future claim (except as reserved by this Agreement or where
expressly prohibited by law) that relates in any way to X. Xxxxxx’x employment,
Employment Agreement, with the exception of any claim Biophan may have for
enforcement of this Agreement. This release includes any and all claims, direct
or indirect, which might otherwise be made under any applicable local, state
or
federal authority, including but not limited to any claim arising under the
state or local statutes where X. Xxxxxx was employed by Biophan dealing with
employment, or any other applicable statutory contract, tort, or common law
theories, except that Biophan does not release X. Xxxxxx from his obligations
under this Agreement, or contribution and indemnification obligations, if
any.
4.3 |
NO
ADMISSION OF LIABILITY.
|
It
is
understood and agreed that the acts done and evidenced hereby and the releases
granted hereunder are not an admission of liability on the part of X. Xxxxxx
or
Biophan, by whom liability has been and is expressly denied.
5. |
MUTUAL
NONDISPARAGEMENT.
|
X.
Xxxxxx
agrees that X. Xxxxxx will not disparage or make false statements about Biophan.
Biophan should report to X. Xxxxxx any actions or statements that are attributed
to X. Xxxxxx that Biophan believes are disparaging or false. Biophan may take
actions consistent with the provision for breach of the agreement should it
determine that X. Xxxxxx has disparaged or made false statements about
Biophan.
Biophan
agrees that its officers and directors will not disparage or make false
statements about X. Xxxxxx. X. Xxxxxx should report to Biophan any actions
or
statements that are attributed to Biophan’s officers or directors which X.
Xxxxxx believes are disparaging or false. X. Xxxxxx may take actions consistent
with the provision for breach of this Agreement should X. Xxxxxx determine
that
Biophan’s officers or directors have disparaged or made false statements about
X. Xxxxxx.
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6. |
CONFIDENTIAL,
PROPRIETARY AND TRADE SECRET
INFORMATION.
|
X.
Xxxxxx
acknowledges the continuing duties under the Employment Agreement signed by
X.
Xxxxxx and agrees not to use or disclose confidential, proprietary or trade
secret information learned while an employee of Biophan or its predecessors,
including the terms of this Agreement, and covenants not to breach that duty
(except as required by law). Should X. Xxxxxx, X. Xxxxxx’x attorney or agents be
requested in any judicial, administrative, or other proceeding or investigation
to disclose confidential, proprietary or trade secret information X. Xxxxxx
learned while an employee of Biophan or its predecessors, X. Xxxxxx shall
promptly notify Biophan of such request.
7. |
COVENANTS.
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7.1 |
COVENANT
NOT TO PROSECUTE OR MAINTAIN ANY ACTION OR
PROCEEDING.
|
In
exchange for the payments made hereunder, X. Xxxxxx covenants as to Biophan,
not
to prosecute or hereafter maintain or institute any action at law, suit or
proceeding in equity, administrative or any proceeding of any kind or nature
whatsoever for any reason related in any way to any claim released herein.
X.
Xxxxxx further covenants and agrees that X. Xxxxxx will not raise any claim
against Biophan, by way of defense, counterclaim or cross-claim or in any other
manner, on any alleged claim, demand, liability or cause of action released
herein. At the time of his execution of this Agreement, X. Xxxxxx represents
that there are no claims, complaints or charges pending against Biophan in
which
X. Xxxxxx is a party or complainant. Further, X. Xxxxxx acknowledges and agrees
there are no unasserted workers’ compensation claims through the date of his
execution of this Agreement.
7.2 |
COVENANT
TO RETURN COMPANY PROPERTY.
|
X.
Xxxxxx
agrees to return the Specified Property of Biophan, within seven (7) days after
X. Xxxxxx’x execution of this Agreement. For the purposes of this Agreement,
Specified Property includes, credit cards, keys, card keys, computer files,
all
originals and copies of all documents, and any other property belonging to
Biophan. X. Xxxxxx may retain his cell phone, palm pilot and laptop computer.
X.
Xxxxxx further covenants that X. Xxxxxx has no personal charges nor unauthorized
business charges on the credit cards to be returned or otherwise and agrees
to
reimburse Biophan if X. Xxxxxx is mistaken.
7.3 |
COOPERATION
IN DEFENSE OF COMPANY;
CONSULTATION.
|
X.
Xxxxxx
covenants now and in the future that X. Xxxxxx will reasonably cooperate with
Biophan to the best of X. Xxxxxx’x ability in the defense of any claim brought
against Biophan of which X. Xxxxxx has any personal knowledge (“Defense
Services”) at no additional cost to Biophan beyond what is provided by this
Agreement. Biophan agrees it will reimburse X. Xxxxxx’x reasonable out-of-pocket
expenses in providing such Defense Services. In addition, X. Xxxxxx agrees
to
reasonably provide specific operations information to Biophan as requested
in a
reasonable, timely and clear manner to allow Biophan to continue and/or complete
job tasks, activities, assignments, to continue effective relationships with
business partners by responding to reasonable inquiries as needed by
telephone.
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8.
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ARBITRATION
OF CERTAIN DISPUTES; CLAIMS FOR IRREPARABLE HARM;
VENUE.
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Except
as
provided below, X. Xxxxxx and Biophan agree that should any dispute arise
between the parties whether or not arising out of this Agreement, the issue
shall be submitted to arbitration in New York, New York, before one arbitrator
pursuant to the then current employment rules of the American Arbitration
Association. In such event, each party shall pay its own costs and
attorneys’
fees.
Notwithstanding the above, in the event either party wishes to obtain equitable
relief for violations of paragraphs 5, 6, or 7 including, without limitation,
specific performance, immediate issuance of a temporary restraining order or
preliminary injunction enforcing this Agreement, it may bring a claim for such
relief in arbitration or in an action in an applicable court in New York, New
York.
9.
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SCOPE
OF AGREEMENT.
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The
provisions of this Agreement shall be deemed to obligate, extend to, and inure
to the benefit of the parties: Biophan’s
affiliates, successors, predecessors, assigns, directors, officers, and
employees; and each parties insurers, transferees, grantees, legatees, agents
and heirs, including those who may assume any and all of the above-described
capacities subsequent to the execution and effective date of this
Agreement.
10.
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OPPORTUNITY
FOR ADVICE OF COUNSEL.
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X.
Xxxxxx
acknowledges that X. Xxxxxx has been encouraged by Biophan to seek advice of
counsel with respect to this Agreement and has had the opportunity to do
so.
11.
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SEVERABILITY.
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Every
provision of this Agreement is intended to be severable. In the event any term
or provision of this Agreement is declared to be illegal or invalid for any
reason whatsoever by an arbitrator or a court of competent jurisdiction or
by
final and unappealed order of an administrative agency of competent
jurisdiction, such illegality or invalidity should not affect the balance of
the
terms and provisions of this Agreement, which terms and provisions shall remain
binding and enforceable.
12. |
NO
WAIVER.
|
Failure
of either party to enforce any term of this Agreement shall not constitute
a
waiver of the party’s
right
to enforce that term or any other term of this Agreement.
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13. |
COSTS
AND ATTORNEY’S
FEES.
|
The
parties each agree to bear their own costs and attorneys’
fees
which have been or may be incurred in connection with any matter herein or
in
connection with the negotiation and consummation of this Agreement or any action
to enforce the provisions of this Agreement.
14.
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GOVERNING
LAW.
|
The
rights and obligations of the parties under this Agreement shall in all respects
be governed by the laws of the United States and the State of New
York.
15. |
ENTIRE
AGREEMENT: MODIFICATION.
|
This
Agreement and the Employment Agreement signed by X. Xxxxxx contain the entire
agreement and understanding among the parties as to X. Xxxxxx’x separation as an
employee. This Agreement supersedes and replaces all other prior negotiations
and proposed agreements, written or oral as to X. Xxxxxx’x separation. X. Xxxxxx
and Biophan acknowledge that no other party, nor agent nor attorney of any
other
party, has made any promise, representation, or warranty, express or implied,
not contained in this Agreement concerning the subject matter of this Agreement
or to induce this Agreement, and X. Xxxxxx and Biophan acknowledge that they
have not executed this Agreement in reliance upon any such promise,
representation, or warranty not contained in this Agreement.
No
modification or waiver of any of the provisions or any future representation,
promise or addition shall be binding upon the parties unless made in writing
and
signed by the parties.
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