Employment Separation Agreement - Liquidmetal Technologies Inc. and Thomas N. Trotter
EXECUTION COPY
EMPLOYMENT SEPARATION AGREEMENT
THIS EMPLOYMENT SEPARATION AGREEMENT (this "Agreement") is
made and entered into as of the 6th day of November, 2003, by and between
LIQUIDMETAL TECHNOLOGIES, INC., a Delaware corporation ("Company"), and THOMAS
N. TROTTER, an individual ("Employee").
RECITALS:
A. Pursuant to the Employment Agreement, dated December
1, 2002, by and between Company and Employee (the "Employment Agreement"),
Employee is currently employed by Company as Senior Vice President of
Manufacturing of Company.
B. Employee wishes to terminate his 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, except as specifically provided in this Agreement, the
Employment Agreement is terminated effective December 31, 2003, and except as
set forth in Section 5 below and except as otherwise specifically provided in
this Agreement, neither Company nor Employee shall have any further rights,
obligations, or duties under the Employment Agreement as of December 31. 2003.
During the period between the execution of this Agreement and December 31, 2003,
Employee will continue to be available for consultation, guidance, project
completion, and travel to any of the Company locations, if necessary, and as
directed by the Chief Operating Officer.
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. Company will continue to pay to Employee an amount
equal to the Employee's base salary of $8,333.33 semi-monthly as in effect under
the Employment Agreement until December 31, 2003. Such base salary 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, provided that the first payment will not be made
any earlier than the eighth (8th) day following the date Employee executes this
Agreement.
b. On January 1, 2004, or the eighth (8th) day following
the date Employee executes this Agreement, whichever comes last, Company shall
pay to Employee, in a lump sum,
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Seventy Thousand Dollars and 00/100 ($70,000.00), less applicable tax
withholdings, representing the dollar value of the bonus that Employee would
have otherwise been entitled to under the Employment Agreement.
c. As promptly as practicable following the execution of
this Agreement, and in no event later than the eighth (8th) day following the
date Employee executes this Agreement, the Company will, in accordance with the
Company's standard expense reimbursement policies, reimburse Employee for all
appropriately documented travel and other Company expense items submitted by
Employee for reimbursement. Thereafter, the Company will, in accordance with the
Company's standard expense reimbursement policies, promptly reimburse Employee
for any additional Company expenses appropriately incurred by Employee prior to
December 31, 2003.
d. For the period beginning on January 1, 2004 and
ending December 31, 2004, (the "Severance Period"), Company will continue to pay
to Employee (or Employee's estate, in the case of his death) an amount equal to
the Employee's base salary of $8,333.33 semi-monthly as in effect under the
Employment Agreement 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, the Company will pay the premium for health insurance coverage
during the Severance Period for Employee, his spouse, and his children under the
Company's health plan in accordance with the Consolidated Omnibus Budget
Reconciliation Act of 1985 (COBRA).
e. Employee agrees and acknowledges that, in the event
the Company reasonably determines in good faith that Employee has committed a
breach of this Agreement or has breached any of the provisions of the Employment
Agreement that continue to remain in effect pursuant to Section 5 hereof, then
the Company's obligation to make payments under Section 4(a), (b), (c), and (d)
above shall immediately terminate and cease, and Employee will thereafter no
longer be entitled to receive any compensation or payment from the Company.
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 obligations and
duties of Company set forth herein, Employee agrees 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.
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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, costs, losses, damages, injuries,
rights, judgments, attorneys' fees, expenses, 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 the Company. 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 acknowledges that the information in the following
paragraphs is included for the express purpose of complying with the Older
Workers' Benefits Protection Act, 29 U.S.C. Section 626(f):
i. I, Thomas N. Trotter, was over 40 years of
age when I resigned my employment and when I signed this Agreement. I realize
there are many laws and regulations prohibiting employment discrimination or
otherwise regulating employment or claims related to employment pursuant to
which I may have rights or claims, including the Age Discrimination in
Employment Act of 1967, as amended (the "ADEA"). I hereby waive and release any
rights or claims I may have under the ADEA.
ii. By signing this Agreement, I state that I am
receiving compensation and severance benefits to which I was not otherwise
entitled. I am waiving and releasing all claims
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against the Company that I may have based on my age. I am not waiving any claim
or action under the ADEA based upon rights or claims that may arise after the
date I sign this Agreement.
iii. I am being given continued compensation as\
specified in Section 4 hereof in exchange for the release and waiver of all
claims that I am agreeing to herein. This continued compensation is in addition
to anything of value to which I am already entitled in that I am receiving this
continued compensation without having to perform services of an equal value.
iv. I was informed in writing that I could
consult with an attorney before signing this Agreement. I acknowledge that I was
given the opportunity to consider this Agreement for twenty-one (21) days before
signing it, and, if I sign it, to revoke it for a period of seven (7) days
thereafter. Regardless of when I signed this Agreement, I acknowledge that my
seven-day period will not be waived. No payments will be made to me until after
the seven-day revocation period expires.
6. EMPLOYMENT RECOMMENDATIONS; NON-DISPARAGEMENT. 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. In addition, the parties 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
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.
7. RESIGNATION FROM OFFICES. Employee hereby resigns, effective
as of the date hereof, 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 except as provided herein, 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
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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 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.
10. Employee agrees, as consideration for and as a condition to
the execution of this Agreement by Company, to execute on the last day of his
employment with Company the Final Separation Agreement and General Release which
is incorporated as Exhibit 1 to this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first above written.
COMPANY: EMPLOYEE:
LIQUIDMETAL TECHNOLOGIES, INC. THOMAS N. TROTTER
By: /s/ John Kang By: /s/ Thomas Trotter
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John Kang, Chairman, Chief Thomas N. Trotter, individually
Executive Officer, and President
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