Exhibit 10.9
SEPARATION AGREEMENT AND RELEASE
This Separation Agreement and Release (“Agreement”) is made by and between Jonathan Waldern (“Executive”) and Metamaterial Technologies USA Inc. (the “Company”) (collectively referred to as the “Parties” or individually referred to as a “Party”).
RECITALS
WHEREAS, Executive was employed by the Company, a subsidiary of Metamaterial Inc., with an ultimate parent of Meta Materials, Inc. (the “Parent”) (together, with all other affiliates of the Company or the Parent, the “Company Group”);
WHEREAS, Executive signed an Executive Employment Contract with Metamaterial Inc. dated December 16, 2020 (the “Employment Agreement”);
WHEREAS, Executive signed an At-Will Employment, Confidential Information and Invention Assignment Agreement with Metamaterial Inc. dated December 16, 2020 (the “Confidentiality Agreement”);
WHEREAS, the Parent and Executive have entered into Stock Option Agreements granted as of the dates indicated in Exhibit A hereto, pursuant to which Executive was granted the option to purchase shares of the Company’s common stock (each such grant, an “Option Award”) and have entered into Restricted Stock Unit Award Agreements granted as of the dates indicated in Exhibit A hereto, granting Executive the right to receive an award of restricted stock units (each such award, an “RSU Award”), each subject to the terms and conditions of the Company’s Amended and Restated Executive Stock Option Plan (the “Stock Option Plan”) or the Company’s 2021 Equity Incentive Plan (the “2021 Plan” and, together with the Option Plan, the “Plans” and the Plans collectively with the Option Awards and RSU Awards, the “Stock Agreements”).
WHEREAS, the Company terminated Executive’s employment with the Company effective April 21, 2023 (the “Termination Date”); and
WHEREAS, the Parties wish to resolve any and all disputes, claims, complaints, grievances, charges, actions, petitions, and demands that the Executive may have against the Company and any of the Releasees as defined below, including, but not limited to, any and all claims arising out of or in any way related to Executive’s employment with or separation from the Company.
NOW, THEREFORE, in consideration of the mutual promises made herein, the Company and Executive hereby agree as follows:
COVENANTS
a. any and all claims relating to or arising from Executive’s employment relationship with the Company and the termination of that relationship or Executive’s relationship(s) with any member of the Company Group;
b. any and all claims relating to, or arising from, Executive’s right to purchase, or actual purchase of shares of stock of the Parent, including, without limitation, any claims for fraud, misrepresentation, breach of fiduciary duty, breach of duty under applicable state corporate law, and securities fraud under any state or federal law;
c. any and all claims for wrongful discharge of employment, termination in violation of public policy, discrimination, harassment, retaliation, breach of contract (both express and implied), breach of covenant of good faith and fair dealing (both express and implied), promissory estoppel, negligent or intentional infliction of emotional distress, fraud, negligent or intentional misrepresentation, negligent or intentional interference with contract or prospective economic advantage, unfair business practices, defamation, libel, slander, negligence, personal injury, assault, battery, invasion of privacy, false imprisonment, conversion, and disability benefits;
d. any and all claims for violation of any federal, state, or municipal statute, including, but not limited to, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990, the Equal Pay Act, the Fair Labor Standards Act, the Fair Credit Reporting Act, the Age Discrimination in Employment Act of 1967, the Older Workers Benefit Protection Act, the Employee Retirement Income Security Act of 1974, the Worker Adjustment and Retraining Notification Act, the Family and Medical Leave Act, the Immigration Reform and Control Act, the California Family Rights Act, the California Labor Code, the California Workers’ Compensation Act, and the California Fair Employment and Housing Act;
e. any and all claims for violation of the federal or any state constitution;
f. any and all claims arising out of any other laws and regulations relating to employment or employment discrimination;
g. any claim for any loss, cost, damage, or expense arising out of any dispute over the nonwithholding or other tax treatment of any proceeds received by Executive from the Company or any other member of the Company Group; and
h. any and all claims for attorneys’ fees and costs.
Executive agrees that the release set forth in this Section shall be and remain in effect in all respects as a complete general release as to the matters released. This release does not extend to any obligations incurred under this Agreement. This release does not release claims that cannot be released as a matter of law. Any and all disputed wage claims that are released herein shall be subject to binding arbitration in accordance with this Agreement, except as required by applicable law. This release does not extend to any right Executive may have to unemployment compensation benefits.
A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.
Executive, being aware of said code section, agrees to expressly waive any rights Executive may have thereunder, as well as under any other statute or common law principles of similar effect.
“(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the employer’s equipment, supplies, facilities, or trade secret information except for those inventions that either: (1) Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably anticipated research or development of the employer; or (2) Result from any work performed by the employee for the employer. (b) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being required to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable.”
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(a) Executive has read this Agreement;
(b) Executive has a right to consult with an attorney regarding this Agreement, and has been represented in the preparation, negotiation, and execution of this Agreement by an attorney of Executive’s own choice or has elected not to retain an attorney;
(c) Executive understands the terms and consequences of this Agreement and of the releases it contains;
(d) Executive is fully aware of the legal and binding effect of this Agreement; and
(e) Executive has not relied upon any representations or statements made by the Company that are not specifically set forth in this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement on the respective dates set forth below.
Jonathan Waldern, an individual
Dated: /s/ Jonathan Waldern June 14, 2023
Jonathan Waldern
Meta Materials Inc.
Dated: /s/ George Palikaras By May 4, 2023
George Palikaras
President and Chief Executive Officer
Exhibit A
Option and RSU Awards
Options
RSU
Nil
Exhibit B
This Exhibit B lists the job titles and ages of all U.S.-based employees of Metamaterial Inc., Meta Materials, Inc., and Metamaterial Technologies USA, Inc. that were employed as of April 19, 2023, which is the decisional unit for this employment termination program. All listed individuals are covered by and eligible for this employment termination program by virtue of their membership in the decisional unit. An asterisk (*) denotes all employees whose employment was terminated in connection with the reduction in force and therefore, as of April 21, 2023, had been selected for this employment termination program. Two asterisks (**) denote all employees who (as of April 21, 2023) were slated to be terminated as part of this employment termination program after April 20, 2023.
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