EXHIBIT 10.24
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is made between Dr. Gina
Kritchevsky and Nanophase Technologies Corporation ("NTC" or the "Company").
WHEREAS, during the period between February 15, 1999 and December 6,
2002, Dr. Kritchevsky served as a Vice President and Chief Technology Officer of
NTC pursuant to agreements including that certain Employment Agreement between
the Company and Dr. Kritchevsky entered into on or about February 17, 2000 (the
"Employment Agreement"); and
WHEREAS, Dr. Kritchevsky wishes to redirect her professional expertise
and time toward pursuits other than Company business, and NTC wishes to continue
having periodic access to Dr. Kritchevsky's knowledge and expertise; and
WHEREAS, effective December 6, 2002, Dr. Kritchevsky voluntarily
resigned her position as an officer and employee of the Company, and NTC
concurrently accepted her resignation; and
WHEREAS, NTC wishes to engage Dr. Kritchevsky as NTC's consultant and
Dr. Kritchevsky wishes to provide consulting services to NTC upon the terms and
conditions stated in this Consulting Agreement.
NOW, THEREFORE, in consideration of the mutual terms stated below and
other valuable consideration, Dr. Kritchevsky and NTC agree as follows:
1. Consulting Services. Effective December 7, 2002 through December 31,
2003 (the "Term"), Dr. Kritchevsky shall render consulting services to NTC
consisting of: (a) monitoring any patent applications, filings by entities other
than NTC regarding nano particles, nano materials or nano technology, with
confidential written reports of such monitoring submitted bi-weekly by
electronic mail to the Company's President and Chief Executive Officer (with
copies transmitted to NTC's counsel); (b) at the request of NTC's President and
Chief Executive Officer, attending such nano technology conferences as NTC's
representative, and thereafter providing the Company's President and Chief
Executive Officer with written reports of such conferences by electronic mail;
and (c) providing the Company with such other consultation as may be reasonably
requested from time to time by NTC's President and Chief Executive Officer.
Under no circumstances will Dr. Kritchevsky's preceding consulting services
continue after the end of the Term. However, in the Company's sole discretion,
it may notify Dr. Kritchevsky that the Term has ended at any time before
December 31, 2003, providing that such notification will not affect Dr.
Kritchevsky's right to continued receipt of the Consulting Fees described below
in Paragraph 2 of this Agreement.
2. Consulting Fees. Subject to Dr. Kritchevsky's complying with all her
obligations under this Agreement, NTC will pay her consulting fees in the
aggregate amount of $185,000, payable in 26 equal proportionate amounts tendered
on NTC's regular payroll periods beginning January 1, 2003 and continuing
through December 31, 2003 (the "Consulting Fees"). The Company and Dr.
Kritchevsky understand that the Consulting Fees shall be paid by NTC
solely in exchange for Dr. Kritchevsky's agreement to perform consulting
services for NTC. The Consulting Fees are not intended and should not be
construed as NTC's payment to Dr. Kritchevsky of wages, salary or compensation
for her past employment with the Company. NTC will forward Form 1099 to the U.S.
Internal Revenue Service, the Arizona Department of Revenue and any other
applicable taxing authority in connection with the Consulting Fees paid by NTC
under this Agreement.
3. Consulting Expenses. The Company will reimburse Dr. Kritchevsky for
any reasonable expenses she incurs on NTC's behalf in connection with rendering
her consulting services, provided that any such expenses are approved in advance
by NTC's President and Chief Executive Officer and thereafter submitted to the
Company with a written reimbursement request, supported by appropriate
documentation acceptable to NTC, consistent with its customary procedures for
expense reimbursement.
4. Stock Options. All stock options previously granted to Dr.
Kritchevsky shall remain in effect and operate throughout the Term solely
according to the terms of the Company's respective Equity Compensation Plan, its
Amended and Restated 1992 Stock Option Plan (collectively, the "Plans"), and any
Stock Option Agreements between Dr. Kritchevsky and NTC. Subject to Dr.
Kritchevsky's complying with all her obligations under this Agreement, upon the
end of the Term, but not sooner than March 31, 2003, any stock options
previously granted to Dr. Kritchevsky shall become fully vested and shall become
exercisable by Dr. Kritchevsky in accord with the applicable option grant
agreement and the Plans.
5. COBRA Continuation. Subject to Dr. Kritchevsky's continuation
election and eligibility for COBRA continuation coverage under the terms of
NTC's group health insurance plans, the Company will deduct Dr. Kritchevsky's
monthly insurance premiums for January, February and March 2003 from the
respective Consulting Fees otherwise payable to Dr. Kritchevsky for those
months. Thereafter, Dr. Kritchevsky will be responsible for tendering her own
monthly insurance premium payments pursuant to COBRA.
6. No Other Benefits. During the Term, Dr. Kritchevsky will not be
entitled to nor receive any benefits under any employee welfare or retirement
plan sponsored by NTC, except in her capacity as a former employee as provided
under Paragraph 5 of this Agreement.
7. Tax Consequences. Dr. Kritchevsky acknowledges that NTC has made no
representations or warranties to her concerning the tax consequences, if any, of
the Consulting Fees or any other monies paid to or on behalf of Dr. Kritchevsky
under this Agreement. NTC and Dr. Kritchevsky each shall bear their own tax
consequences, if any, and all related applicable tax reporting or filing
obligations.
8. General Release. In consideration of the preceding benefits provided
by NTC to Dr. Kritchevsky, which benefits are hereby acknowledged by Dr.
Kritchevsky to be sufficient, just and adequate, Dr. Kritchevsky, for herself
and her heirs, executors, administrators, legal representatives, agents,
attorneys, successors and assigns irrevocably and unconditionally hereby
releases and forever discharges NTC, all its respective officers, directors,
shareholders, predecessors, successors, affiliates, employees, insurers, benefit
plans, legal representatives, agents, attorneys and assigns, of and from any and
all administrative, judicial or other claims,
actions, charges, suits, debts, dues, accounts, contracts, plans, controversies,
agreements, promises, representations, warranties, damages and judgments, in law
or equity, which Dr. Kritchevsky had, has or may hereafter have, whether known
or unknown, from the beginning of time to and including the effective date of
this Agreement, arising out of, relating to, or in any manner connected with any
of the following:
A. All matters relating to Dr. Kritchevsky's employment with,
or resignation as an officer and employee of, NTC.
B. All rights or claims to any compensation or benefits from
the Company (specifically including any claim for severance benefits as
provided in Section 7(b) of the Employment Agreement, except as
expressly provided in this Agreement.
C. All suits, claims, charges or causes of action arising
under or in connection with: (i) Title VII of the Civil Rights Act of
1964 as amended (42 U.S.C. ss.ss. 2000e et seq.), the Civil Rights Act
of 1991, the Americans With Disabilities Act (42 U.S.C. ss.ss. 12101 et
seq.) the National Labor Relations Act as amended (29 U.S.C. ss.ss. 151
et seq.) the Employee Retirement Income Security Act of 1974 as amended
(29 U.S.C. ss.ss. 1001 et seq.), the Occupational Safety and Health Act
of 1970 as amended (29 U.S.C. ss.ss. 651 et seq.), the Fair Labor
Standards Act as amended (29 U.S.C. ss.ss. 201 et seq.); (ii) any
federal, state or local law, statute, ordinance, regulation, order or
any public policy affecting or relating to the claims and rights of
employees, or any claims arising out of or in relation to any contract
or common law right including without limitation any claim in tort or
contract relating to the breach of an oral, written or implied
contract, breach of the implied covenant of good faith and fair
dealing, misrepresentation, defamation, interference with contract,
interference with prospective economic advantage, retaliation,
harassment, conspiracy, wrongful termination, intentional or negligent
infliction of emotional or psychological injury, mental or emotional
distress, mental anguish, negligence, humiliation, embarrassment, pain
and suffering, loss of personal or professional reputation, loss of
career opportunities, stigmatization or loss of job status or
satisfaction; (iii) any employment-related claims for compensatory,
consequential or punitive damages, equitable relief, attorneys' fees or
litigation costs, back-pay, front-pay, past or prospective benefits
from individual, group or other insurance coverage or any other source,
loss of salary, net accumulations, wages, expense reimbursements,
vacations, earnings, interest or loss of any other incidents, terms or
conditions of employment; and (iv) any claim for attorneys' fees.
9. Age Claim Release. Dr. Kritchevsky specifically agrees that:
A. She is releasing any and all claims for age discrimination
under the Age Discrimination in Employment Act of 1967 (29 U.S.C.
Sections 621 et seq.), as amended by the Older Workers Benefit
Protection Act, and related state law, arising up to the date of her
execution of this Agreement;
B. The consideration she will receive under this Agreement is
greater than normally provided by the policies of NTC to a person of
her length of service and responsibility.
C. She has been advised to consult with an attorney of her
choice before she signs this Agreement.
D. She has been given twenty-one calendar days from the date
she received this Agreement to decide whether to sign it;
E. She has seven calendar days from the date she signs this
Agreement to revoke its execution. Dr. Kritchevsky agrees that if she
revokes her execution of this Agreement, she will immediately provide
NTC with written notice of the revocation, transmitted to NTC by
overnight delivery or messenger. In the event of such revocation, all
obligations of NTC under this Agreement shall cease immediately.
10. No Admissions. Dr. Kritchevsky acknowledges that the benefits
provided by NTC, and its execution of this Agreement, are not an admission of
wrongdoing of any kind on the part of the entities and persons hereby released,
by whom wrongdoing of any kind is expressly denied.
11. Confidentiality. Dr. Kritchevsky agrees to keep strictly
confidential all terms of this Agreement. Dr. Kritchevsky also agrees not to
disclose any proprietary business information or trade secret information
belonging to NTC. Dr. Kritchevsky confirms the enforceability of her obligations
under that certain Confidential Information And Proprietary Rights Agreement
between NTC and her entered into on or about February 15, 1999. Dr. Kritchevsky
agrees that if she is ever required by subpoena or order of any court or
administrative agency to disclose any information concerning NTC, including its
confidential or proprietary information of any kind, she will first notify NTC
in writing of such subpoena or order before making any disclosure.
12. Continued Rights and Obligations.
A. Dr. Kritchevsky confirms the enforceability of her
obligations under Sections 8 and 18 of the Employment Agreement.
B. NTC and Dr. Kritchevsky confirm that nothing in this
Agreement is intended, nor should be construed as, a waiver of any
rights to indemnification in connection with her prior acts or
omissions as an officer of NTC that Dr. Kritchevsky now has or
subsequently may have under any insurance policy or provision of
applicable law.
C. Dr. Kritchevsky acknowledges that as the Company's former
Chief Technology Officer, she became familiar with all NTC's
proprietary technology and know-how. In view of her knowledge of the
Company's confidential information and business strategies, and in
consideration of the Consulting Fees payable by NTC under this
Agreement, Dr. Kritchevsky agrees that during the Term, and throughout
the Non-Competition Period as defined in Paragraph 8(b) of the
Employment Agreement, she will not directly or indirectly, whether on
her own behalf or on behalf of any other person or entity, in any
manner render consulting services of any kind to or for any person or
entity other than NTC with respect to any aspect of nanotechnology or
nanomaterials.
13. Return of NTC Property. Upon the Company's request, Dr. Kritchevsky
shall immediately return to NTC any of its property in her possession or
control, including, without limitation, any written or computer-based materials
and any copies, excerpts, summaries or compilations thereof.
14. No Assignment. Dr. Kritchevsky warrants that she has not assigned
any claim, cause of action, suit, contract, controversy, promise or damages
which she had, has or hereafter may have arising from any matters connected in
any way with her employment by NTC or any claims released in this instrument.
15. Integration and Voluntary Signing. Dr. Kritchevsky acknowledges
that all the benefits provided by NTC, and its execution of this Agreement, are
described in this instrument; that no other promise or agreement of any kind has
been made to or with her by any person or entity to cause her to sign this
Agreement; that except as specifically stated herein, this instrument
constitutes the entire agreement between the parties; and that she has knowingly
signed the Agreement of her own free will.
16. Governing Law. This Agreement shall be construed in accord with and
governed by the laws of the State of Illinois.
Nanophase Technologies Corporation
/s/ Gina Kritchevsky By: /s/ Joseph Cross
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Gina Kritchevsky Its: President & CEO
Date: 12/12/02 Date: 12/12/02