Exhibit 10.36
CONFIDENTIAL RELEASE AND WAIVER AGREEMENT
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Xxxxx Xxxxxx ("Employee") and AER Energy
Resources, Inc. (the "Company") agree as follows:
1. No Admission of Liability. In entering into this Confidential
Release and Waiver Agreement (the "Agreement"), the Company does not admit any
present or past liability to Employee in connection with his employment by the
Company or any other matter.
2. Resignation. Employee hereby formally and unconditionally resigns
from employment at the Company as of June 3, 2002. Employee acknowledges and
agrees that he/she has no further employment relationship with the Company after
such date.
3. Amendment of Options Agreement. In exchange for Employees' promises
contained herein, the Company will amend Employees' option agreement to provide
that they will be exercisable until the earlier of July 1, 2006 and their
expiration date, but that any exercise shall be contingent upon Employee being
in compliance with his or her obligations to The Xxxxx-Xxxxxxx Company under
promissory note or notes given by him or her to The Xxxxx-Xxxxxxx Company in
exchange for loans to him or her by it.
4. Special Severance Payment to Employee. In exchange for Employee's
promises contained herein, the Company will pay Employee a Special Severance
Payment of $40,265.62, less applicable state and federal withholding taxes and
garnishments, in full and complete settlement and compromise of any and all
claims which Employee may have against the Company arising out of his or her
employment with the Company. The Special Severance Payment will be paid in
installments on the Company's regular payday and shall end on the earlier to
occur of (i) September 15, 2002; or (ii) the date on which Employee is
reemployed. Installment payments of the Special Severance Payment will continue
to be made your checks will be mailed to you at your home address on record with
the Company unless you request some other arrangement in writing.
It will be the obligation of Employee to promptly notify the Company of his or
her reemployment and to comply with the Company's requests from time to time for
Employee to confirm his or her employment status. "Reemployment" for purposes of
this Agreement shall mean employment with another employer, self-employment,
consultancy, freelancing, independent contract, establishment of a sole
proprietorship, partnership or corporation, or other method or arrangement by
which Employee is gainfully employed for profit or remuneration on a full-time
basis. Part-time employment (i.e., less than 30 hours per week) shall not
constitute re-employment.
Employee acknowledges that the foregoing consideration constitutes value to
which Employee was not already entitled.
5. Confidentiality. Employee agrees that he/she will not, directly or
indirectly, disclose any of the terms of this Agreement to any person other than
his or her spouse, attorney or accountant, unless compelled to do so by court
order or other lawful process.
6. Unemployment; COBRA, Termination of Benefits. Any right Employee may
have to seek unemployment compensation under the laws of Georgia and any right
Employee may have to continuation of health insurance coverage under COBRA are
not affected by this Agreement. Your life, disability, dental, and medical
insurance coverage provided by AER Energy will be terminated on June 30, 2002.
If you wish, you may continue your medical insurance coverage under the
Consolidated Omnibus & Budget Reconciliation Act ("COBRA"). A letter will be
provided to you outlining the details of COBRA election, mailed to your home
address.
7. Confidential Release. Employee, for himself or herself and his or
her heirs, executors, administrators, successors and assigns, does hereby
remise, release and forever discharge the Company, its subsidiaries, affiliates,
successors, assigns, officers, directors, agents, representatives and employees
of and from any and all manner of claims, rights, actions, causes of action,
suits, executions, demands, damages, charges, debts, contracts, agreements,
controversies or complaints of any kind or nature whatsoever, whether in law or
in equity, which Employee has or may have as a result of any acts, events or
facts occurring prior to the execution of this Agreement, and specifically
including, but not limited to (a) any and all claims arising out of, related to
or connected in any way with Employee's employment with the Company or any
agreement or contract of employment with the Company (but not including any
claim for payment pursuant to this Agreement); (b) any and all claims and
actions arising under Title VII of the Civil Rights Act of 1964 (42
U.S.C.ss.ss.2000e et seq.); the Age Discrimination in Employment Act of 1967 and
the Older Workers Benefit Protection Act (29 U.S.C.ss.ss.621 et seq.); the
Americans with Disabilities Act (42 U.S.C.ss.ss.12101 et seq.); or Georgia's
Equal Employment for the Handicapped Code (O.C.G.A. ss.ss.34-6A-1 et seq.); and
(c) any and all claims of race, sex, age, disability, religion, national origin
or other discrimination arising under any local, state, or federal employment
discrimination law.
8. Confidential Information. You also signed a Conditions of Employment
Agreement or Non-Disclosure Agreement that (a) prevents you from disclosing any
of AER Energy's trade secrets for so long as they remain trade secrets, (b)
prevents you from disclosing any of AER Energy's confidential information for
four years from the Termination Date, and (c) prevents you from soliciting any
of AER Energy's employees to leave AER Energy for one year from the Termination
Date. All of these restrictions will continue to apply to you after you leave
AER Energy as set forth in the aforementioned agreement. Pursuant to that
agreement, you are obligated to return all documents, data, records, notes,
drawings, manuals, and other tangible information you have that pertains to AER
Energy and its business. Please review your copy of this agreement to make sure
you understand these restrictions. If you have any questions, you should contact
Xxxxxx Xxxxxxx.
9. Voluntary Execution. By executing this Agreement, Employee
represents that he/she has read this Agreement and understands that this
Agreement contains a waiver of his or her rights and claims that Employee might
otherwise have against the Company as specified above; that he/she has been
advised in writing to consult an attorney of his or her choice prior to signing
this Agreement; that he/she has been given up to forty-five (45) days to
consider this Agreement freely, knowingly, and voluntarily without threat,
duress, coercion or promise of any future consideration.
10. Period of Revocation. Employee shall have seven (7) days following
his or her execution of this Agreement in which to revoke this Agreement, and
this Agreement shall not become effective or enforceable until the revocation
period has expired. In the absence of such revocation, this Agreement shall
become effective and enforceable on the eighth (8th) day following Employee's
execution of this agreement.
IN WITNESS WHEREOF, this Agreement has been executed by the Company on
the 5th day of March, 2002, and by Employee on the 5th day of March, 2002.
EMPLOYEE:
Sworn to and subscribed
before me this 5th day
of March, 2002.
/s/ XXXXX XXXXXX
-----------------------------------
Name: Xxxxx Xxxxxx
/s/ XXXX X. XXXXXX
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Xxxx X. Xxxxxx, Notary Public
My commission expires: 5-23-04
AER ENERGY RESOURCES, INC.
/s/ XXXXX X. XXXXXXX
------------------------------------
By: Xxxxx X. Xxxxxxx
Title: President and CEO
