Employment Separation Agreement - Liquidmetal Technologies Inc. and Brian McDougall
EMPLOYMENT SEPARATION AGREEMENT
THIS EMPLOYMENT SEPARATION AGREEMENT (this "Agreement") is made and
entered into as of the 31st day of December, 2003 (the "Effective Date"), by and
between LIQUIDMETAL TECHNOLOGIES, INC., a Delaware corporation ("Company"), and
BRIAN MCDOUGALL, an individual ("Employee").
RECITALS:
A. Pursuant to the Employment Agreement, dated May 21,
2001, by and between Company and Employee (the "Employment Agreement"), Employee
is currently employed by Company as Chief Operating and Financial Officer.
B. Employee and Company both desire to terminate
Employee's employment with Company.
C. Employee and Company have reached agreement on the
terms of Employee's departure, and both parties view their separation as
amicable.
NOW, THEREFORE, in consideration of the premises and covenants
contained in this Agreement, the parties hereto, intending to be legally bound,
agree as follows:
1. RECITALS. The above recitals are true and correct and are made
a part hereof.
2. TERMINATION OF EMPLOYMENT AGREEMENT. Company and Employee
hereby agree that, for purposes of this Agreement, the date of notification of
termination and the date of termination of the Employment Agreement shall be the
Effective Date. The Employee will continue to work for the Company in a
transitional capacity as an employee through Feb 27, 2004, at the same monthly
salary as paid in December 2003 and subject to the full benefit package as
provided to similarly situated employees in 2004.
3. SEPARATION PAYMENTS. In consideration of Employee's agreement
to the terms of this Agreement, Company will pay Employee the following amounts
(the "Separation Payments"):
a. For the period beginning on February 28, 2004 and
ending February 28, 2006, (the "Severance Period"), Company will continue to pay
to Employee (or Employee's estate, in the case of his death) a monthly amount
equal to the Employee's monthly base salary of $15,750.00 as in effect as of the
date hereof. Such amount shall continue to be paid in accordance with the
prevailing payroll schedule for Company executives, subject to applicable tax
withholdings and other withholdings required by law. In addition, during the
Severance Period, the Company will pay to Employee in cash, an amount
representing the cost of COBRA payments for the Aetna QPOS plan, family coverage
level, through the end of the severance period.
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b. Pursuant to paragraph 4(d) of the Employment
Agreement dated May 21, 2001 the Employee will be paid for all unused vacation
time since the inception of employment. The unused vacation time due to Employee
at the time of separation is two months vacation time which will be paid to
Employee in a lump sum in the Employee's final regular paycheck (non severance
check).
4. SURVIVAL OF CERTAIN PROVISIONS OF EMPLOYMENT AGREEMENT.
Notwithstanding anything to the contrary set forth in this Agreement, Section 6
and Section 7 of the Employment Agreement shall continue to remain in full force
and effect in accordance with the terms thereof, and Employee shall continue to
be bound by the terms thereof (as well as by any other terms of the Employment
Agreement relating to the enforceability and construction of said Sections 6 and
7).
5. WAIVER AND RELEASE. In consideration of the mutual obligations
and duties set forth herein, Employee and Company agree as follows:
a. Employee and Company hereby knowingly and voluntarily
waive, release and forever discharge the other party from any and all claims,
demands, damages, lawsuits, obligations, promises, and causes of action, both
known and unknown, whether now existing or arising in the future, at law or in
equity, relating to or arising out of Employee's employment with Company, the
Employment Agreement, compensation by Company, or separation of employment from
Company. However, nothing contained herein shall be interpreted to limit
Employee's or Company's right to enforce this Agreement through legal process.
b. Employee shall not disclose, either directly or
indirectly, any information whatsoever regarding any of the terms or the
existence of this Agreement to any person or organization, including but not
limited to members of the press and media, present and former employees of
Company, and persons or companies who do business with Company. The only
exceptions to Employee's promise of confidentiality herein is that Employee may
reveal such terms of this Agreement (i) as is necessary to comply with a request
made by the Internal Revenue Service; (ii) as otherwise compelled by a court or
agency of competent jurisdiction; (iii) as required by law; (iv) as is necessary
to comply with requests from Employee's accountants, attorneys, financial
advisors, or other professional advisors for legitimate business purposes or
personal financial planning, (v) to his immediately family members solely for
personal planning purposes (provided that such immediate family members
undertake to maintain the complete confidentiality of this Agreement), or (vi)
when and if this Agreement is included by the Company as a part of a securities
law filing that is actually filed with the Securities and Exchange Commission.
c. Employee agrees to release and forever discharge by
this Agreement the Company from all liabilities, causes of actions, charges,
complaints, suits, claims, obligations, , losses, damages, injuries, rights,
judgments, attorneys' fees, , bonds, bills, penalties, fines, and all other
legal responsibilities of any form whatsoever whether known or unknown, whether
suspected or unsuspected, whether fixed or contingent, whether in law or in
equity, including but not limited to those arising from any acts or omissions
occurring prior to the effective date of this Agreement, including those arising
by reason of any and all matters from the beginning of time to the present,
arising out of his past employment with, compensation during, and resignation
from
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the Company. The Employee will have three months following the termination date
to submit for reimbursement all non-reimbursed cost and expense items that were
personally expended by the Employee in the due course of conducting business for
the Company prior to separation. Upon presentation of such costs and expenses to
the Company, Employee will be promptly reimbursed. Employee specifically
releases claims under all applicable state and federal laws, including but not
limited to, Title VII of the Civil Rights Act of 1964 as amended, the Fair Labor
Standards Act, the Rehabilitation Act of 1973, the Family Medical Leave Act, the
Employee Retirement Income Security Act, the Consolidated Omnibus Reconciliation
Act of 1986, the Americans with Disabilities Act, the Florida Civil Rights Act
of 1992, the Workers' Compensation Act, the Equal Pay Act, the Age
Discrimination in Employment Act of 1967 (Title 29, United States Code, Section
621, et seq.) ("ADEA"), as well as all common law claims, whether arising in
tort or contract.
d. In addition to the other provisions in this
Agreement, Employee hereby makes the following acknowledgments for the express
purpose of complying with the Older Workers' Benefits Protection Act, 29 U.S.C.
Section 626(f):
(1) Employee was over 40 years of age
when he was terminated without cause and when he signed this Agreement. Employee
realizes there are many laws and regulations prohibiting employment
discrimination or otherwise regulating employment or claims related to
employment pursuant to which Employee may have rights or claims, including the
Age Discrimination in Employment Act of 1967, as amended (the "ADEA"). Employee
hereby waive and release any rights or claims he may have under the ADEA.
(2) Employee was informed in writing
that he could consult with an attorney before signing this Agreement. Employee
acknowledges that he was given the opportunity to consider this Agreement for
twenty-one (21) days before signing it, and, if he signs it, to revoke it for a
period of seven (7) days thereafter. Regardless of when Employee signed this
Agreement, Employee acknowledges that his seven-day period will not be waived.
No payments will be made to Employee under Section 3 above until after the
seven-day revocation period expires.
6. EMPLOYMENT RECOMMENDATIONS; NON-DISPARAGEMENT.
a. Company hereby agrees that, in the event that a
future prospective employer of Employee seeks information from Company regarding
the competence, experience, or abilities of Employee, Company shall follow its
standard human resource guidelines, policies, and practices with respect to such
inquiry.
b. The parties to this Agreement shall each refrain from
making any written or oral statement or taking any action, directly or
indirectly, which the parties know or reasonably should know to be disparaging
or negative concerning Company or Employee, except as required by law. The
parties hereto shall also refrain from suggesting to anyone that any written or
oral statements be made which the parties know or reasonably should know to be
disparaging or negative concerning Company or Employee, or from urging or
influencing any person to make any such statement. This provision shall include,
but not be limited to, the requirement that the parties refrain from expressing
any disparaging or negative opinions concerning Company or
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Employee, Employee's resignation from Company, any of Company's officers,
directors, or employees, or other matters relative to Company's reputation as an
employer or any other matters relative to Employee's reputation as an employee
or executive. Company's and Employee's promises in this subsection, however,
shall not apply to any judicial or administrative proceeding in which Employee
or Company is a party or in which Employee or Company has been subpoenaed to
testify under oath by a government agency or by any third party. It addition,
the promises in this subsection shall also not apply to any statements made by
Employee in good faith in response to a request for information from an
authorized officer, agent, director, attorney, or other representative of the
Company.
7. RESIGNATION FROM OFFICES. Employee hereby agrees to resign,
effective as of February 28, 2004, from all offices which Employee holds with
Company and any subsidiary or affiliate of Company.
8. LITIGATION COOPERATION. Beginning on the date of this
Agreement and continuing at all times hereafter, Employee and Company shall,
without any additional compensation, provide each other with full cooperation
and reasonable assistance in connection with Company's defense of any litigation
against Company, its officers, its subsidiaries, or its affiliates arising out
of or relating to any circumstance, fact, event, or omission alleged to occur
while Employee was employed by Company. Employee shall at all times promptly be
reimbursed by the Company for any and all out-of-pocket expenses, including
travel expenses, that may be incurred by Employee in providing such cooperation
and assistance, and to the extent that Employee provides any such assistance or
cooperation after the Severance Period, the Employee also shall be compensated
for his time in providing such cooperation and assistance at a rate equivalent
to a per diem based upon his base salary as in effect under the Employment
Agreement as of the date hereof. Such cooperation and assistance shall include,
but not be limited to, access for research, being available for consultation,
for deposition and trial testimony, and for availability and execution of
discovery-related documents such as interrogatories, affidavits, requests for
production, requests for admissions, and responses to each, as deemed necessary.
Employee and Company further agree to provide their good will and good faith in
providing honest and forthright cooperation in all other aspects of their
defense of any such litigation
9. MISCELLANEOUS.
a. In the event any provision of this Agreement is found
to be unenforceable, void, invalid or unreasonable in scope, such provision
shall be modified to the extent necessary to make it enforceable, and as so
modified, this Agreement shall remain in full force and effect.
b. The paragraph headings in this Agreement are for
convenience only and do not form any part of or affect the interpretation of
this Agreement.
c. This Agreement may be executed in counterparts, each
of which shall be deemed an original of this Agreement and all of which, when
taken together, shall be deemed to constitute one and the same Agreement.
d. The waiver by any party of a breach of any condition
of this Agreement by the other party shall not be construed as a waiver of any
subsequent breach. No waiver of any right
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hereunder shall be effective unless in writing and signed by the party against
whom the waiver is sought to be enforced.
e. The rights and obligations of the parties under this
Agreement shall inure to the benefit of, and shall be binding upon, their
respective heirs, executors, administrators, successors, assigns, subsidiaries,
affiliates, directors, officers, employees, representatives and agents, as
applicable.
f. This Agreement constitutes the entire agreement of
the parties with respect to the subject matter hereof and supersedes any
previous employment agreements or contracts, whether written or oral, between
Company and Employee.
g. This Agreement shall be construed under, and governed
by, the laws of the State of Florida.
h. Employee and Company acknowledge that each has had
the opportunity to read, study, consider and deliberate upon this Agreement, and
to consult with legal counsel, and both parties fully understand and are in
complete agreement with all of the terms of this Agreement.
i. Nothing set forth herein shall be construed as
terminating or diminishing Employee's rights under that certain Indemnity
Agreement, dated May 21, 2003, between Company and Employee, and Employee shall
at all times hereafter continue to have the rights set forth in said Indemnity
Agreement. Additionally, Employee shall at all times hereafter continue to have
the maximum indemnification rights provided under the Delaware General
Corporation Law for Company officers.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
COMPANY: EMPLOYEE:
LIQUIDMETAL TECHNOLOGIES, INC. R. BRIAN MCDOUGALL
By: /s/ John Kang By: /s/ Brian McDougall
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John Kang, Chairman, Chief R. Brian McDougall, individually
Executive Officer, and President
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