EXHIBIT 10.113
SEPARATION, RELEASE AND INDEMNITY AGREEMENT
This Separation, Release and Indemnity Agreement (this
"Agreement") is made as of the dates executed below, to be
effective eight (8) working days after notarized signatures as
provided below, and is made by and between Electrosource, Inc.
("Electrosource) or "the Corporation"), a Delaware corporation
with its principal offices at 3800 "B" Drossett Drive, Austin,
Texas 78744-1131, and Xxxxxxx X. Xxxxxxxxx ("Xxxxxxxxx") an
individual residing at 0000 Xxxxxx Xxxx, XX, Xxxxxxxxxxx, Xxx
Xxxxxx 00000. So that Electrosource and Xxxxxxxxx may each
obtain the benefits given under this Agreement, Xxxxxxxxx on his
own behalf, and on behalf of his heirs and assigns, and
Electrosource enter into this Agreement and agree as follows:
1. RECITALS
(a) In a letter and Clarifying Memorandum dated, October
11, 1994, from Xxxxxxx X. Xxxxxxx, President and Chief Executive
Officer of Electrosource to Xxxxxxx X. Xxxxxxxxx (hereinafter
"the Employment Agreement"), Xxxxxxxxx was offered and accepted a
position as Vice President and Special Assistant to the Chairman
of the Board with responsibilities for capital fundraising,
interacting with the Customer Relations and Marketing
Organization of Electrosource and performing other duties as
assigned;
(b) On or about August 3, 1995, Electrosource made a
payment to Xxxxxxxxx in the gross amount of $48,653.85 and on
August 4, 1995, another payment in the gross amount of $25,926.70
respectively. Electrosource asserts that all and/or a portion of
these payments constituted advance severance payments of
Electrosource pursuant to Xxxxxxxxx'x October 11, 1994,
Employment Agreement and satisfaction of other liabilities or
obligations pursuant to that Employment Agreement while Xxxxxxxxx
asserts that the monies constitute a bonus;
(c) Xxxxxxxxx'x employment with Electrosource ended on
Friday, September 15, 1995, and, Xxxxxxxxx ceased to be an
officer of the corporation and to hold any positions of authority
with the Company effective that date;
(d) Electrosource and Xxxxxxxxx now desire to confirm their
mutual agreements with respect to the cessation of Xxxxxxxxx'x
employment with Electrosource and all positions of authority with
the Company and to resolve all outstanding issues between them;
(e) Xxxxxxxxx has been advised he will be given a period of
time of at least twenty-one (21) days, to review this Separation,
Release and Indemnity Agreement ("Agreement") prior to executing
it and has been advised by Electrosource to seek legal advice
from an attorney of his choice prior to signature and Xxxxxxxxx
has in fact secured legal counsel;
(f) Xxxxxxxxx has made a purely voluntary decision to elect
the benefits under this Agreement which are substantially in
excess of the payments made to departing employees; and
(g) Each of the parties acknowledges that each of the
agreements and obligations of each of the parties to this
Agreement is supported by, good, valuable and adequate
consideration.
2. SEPARATION DATE
(a) Xxxxxxxxx'x employment as an officer and employee of
Electrosource ended on September 15, 1995 (the "Separation
Date"), and Xxxxxxxxx has no authority to act on behalf of the
Corporation after that date; and
(b) Xxxxxxxxx agrees not to seek employment with nor to be
employed by Electrosource after September 15, 1995, nor shall he
represent to any party that he is an Electrosource officer,
employee or agent after that date.
3. RELEASE OF ELECTROSOURCE AND AFFILIATES
In accepting the consideration noted in Paragraph 5 below,
Xxxxxxxxx, on behalf of himself, his heirs and assigns, agrees to
and hereby does release, acquit and forever discharge
Electrosource and its current and former officers, directors,
employees, agents, shareholders, subsidiaries, attorneys
affiliates, successors and assigns (collectively, "the
Affiliates") from any and all claims, counterclaims, debts,
liabilities, demands, actions causes of action, suits, expenses
and liabilities of every kind and character whether suspected or
unsuspected, whether known or unknown, whether now existing or
hereinafter arising, whether arising in tort or in contract, by
statute or by legislation, or otherwise express or implied,
whether at law or in equity, and whether fixed or contingent,
which Xxxxxxxxx ever had or now has or may have or claim to have
against any one or more of the Affiliates, jointly and severally
or jointly or severally including without limitation, any and all
claims and liabilities arising out of or in connection with his
Employment Agreement, his employment, the termination of an/or
separation from his employment by Electrosource, and any and all
entitlement to severance pay or other monies including reasonable
attorney fees, expenses or any other equitable or monetary relief
(hereinafter "Claims"). Xxxxxxxxx hereby promises not to file
any lawsuit against the Electrosource or its Affiliates to assert
any such Claims. This release includes, but is not limited to,
any Claims arising under any employment relations or wage payment
laws, any Claims arising under any federal, state, or local law
or regulation or executive order that prohibit discrimination on
account of age, sex, race, color, sexual orientation, national
origin, religion, handicap, disability or veteran status,
including claims under the Civil Rights Act of 1991 and the Age
Discrimination in Employment Act of 1967, as amended, to the date
of this Agreement, any Claims arising under federal or state
securities laws, any wrongful termination Claims at law or in
equity, in contract or in tort whether known or unknown. This
release does not have any effect on (i) statutory indemnification
rights Xxxxxxxxx enjoys as a corporate officer under Section
145(c) of the General Corporate Law of the State of Delaware or
(ii) on any future claim Xxxxxxxxx may have against Electrosource
that is solely with respect to, or that arises solely out of, any
act by the Corporation that takes place after the date of execute
of this Agreement, including any claim against Electrosource for
breach of its obligation to pay the salary and benefits described
in Paragraph 5 below. This release does extend to and include,
however, without limitation, any present or future consequences,
damages or injuries, or Claims with respect thereto, arising or
that may arise out of any events that occurred on or before the
date of execution of this Agreement.
4. RELEASE OF XXXXXXXXX
In consideration of the promises and representations made by
Xxxxxxxxx under this Agreement, Electrosource on behalf of itself
and its successors and assigns, hereby releases Xxxxxxxxx from
any and all known claims, known counterclaims, known debts, known
liabilities, known demands, known actions, known causes of
action, known suits, know expenses and known liabilities through
the date of execution of this Agreement.
5. PAYMENT TO XXXXXXXXX
In full consideration of Xxxxxxxxx signing this Agreement
and for the promises contained herein, Electrosource, on behalf
of itself and its Affiliates hereby agrees to pay Xxxxxxxxx as
follows:
(a) No later than eight (8) working days after Xxxxxxxxx
and his spouse have executed this Agreement in the presence of a
notary provided Xxxxxxxxx has not exercised in the interim his
revocation rights under paragraph 13 of this Agreement,
Electrosource, on behalf of itself and its Affiliates shall pay
to Xxxxxxxxx in one lump sum in certified funds the gross amount
of FIFTY-SIX THOUSAND AND NO/100 DOLLARS ($56,000.00) less
applicable taxes and withholding resulting in a net amount of
THIRTY-NINE THOUSAND FIVE HUNDRED AND EIGHT AND NO/100 DOLLARS
($39,508.00). All monies due under this Agreement shall be
delivered to Xxxxxxxxx'x attorneys, Small Xxxxx & Werkenthin,
P.C., at 000 Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000.
(b) Until his Separation Date, Xxxxxxxxx was a participant
in a group life insurance plan of Electrosource. Xxxxxxxxx'x
group coverage terminated September 15, 1995. Xxxxxxxxx shall
have the right, on his timely payment of premiums to convert his
life insurance coverage to a permanent life individual policy
pursuant to the terms and time limits of the group policy's
conversion provision. Electrosource has requested a copy of the
continuation form and shall forward it to Xxxxxxxxx on or before
the effective date of this Agreement. Xxxxxxxxx acknowledges
receipt of the conversion form(s) and agrees that once received,
completion and mailing of the appropriate forms and timely
payment of all premium is his sole responsibility.
(c) Until his Separation Date, Xxxxxxxxx was a participant
in a group disability insurance plan of Electrosource.
Xxxxxxxxx'x group disability coverage terminated September 15,
1995, and there is not right of conversion on this policy.
(d) Electrosource has paid to Xxxxxxxxx, sixty (60) hours
of accrued and unused vacation pay in the gross amount of FOUR
THOUSAND ONE HUNDRED FIFTY-FIVE AND 91/100 DOLLARS ($4,155.91)
and final wages for September 10-15, 1995, in the gross amount of
TWO THOUSAND SEVEN HUNDRED SIXTY-NINE AND 20/100 DOLLARS
($2,769.20). Xxxxxxxxx acknowledges and agrees that
Electrosource has paid him all vacation pay and final wages that
he is due.
(e) Xxxxxxxxx was offered and declined the opportunity to
participate in the 401(k) Plan of Electrosource and its group
health and dental plans. Xxxxxxxxx acknowledges and agrees that
has (i) no vested monies in the 401(k) Plan of Electrosource and
(ii) no continuation rights to group health or dental coverage
under Electrosource plans.
(f) Pursuant to Plan terms and applicable I.R.S.
regulations, Xxxxxxxxx is a participant in that certain 1994
Stock Option Plan of Electrosource, Inc. ("the Plan") dated
November 2, 1994, attached hereto as Exhibit A-1, and an
Incentive Stock Option Agreement dated November 16, 1994 for
75,000 shares at a strike price of $3.50, 25,000 of which
Xxxxxxxxx has the present right to exercise, attached hereto as
Exhibit A-2, and an Incentive Stock Option Agreement dated May
31, 1995, for 11,107 shares at a price of $3.375 per share
attached hereto as Exhibit A-3 and a Non-Incentive Stock Option
Agreement also dated May 31, 1995, for 18,891 shares at a price
of $3.375 per share, attached hereto as Exhibit A-4. Xxxxxxxxx
has no present right to exercise the shares in either of the May
31, 1995, options described herein.
(g) Electrosource has leased office space at 0000 Xxxx
Xxxx, X.X., Xxxxx 0, in Albuquerque, New Mexico. On execution of
an appropriate assignment and assumption and payment of all
leasehold responsibilities by Xxxxxxxxx, Electrosource will
permit Xxxxxxxxx to continue to utilize this space at his sole
expense from September 16, 1995, forward, provided the lessor of
the premises agrees. Electrosource agrees to work in good faith
to effect the transfer as promptly as possible after the
effective date of this Agreement. The telephone number of the
space, (000) 000-0000, shall not be transferred to Xxxxxxxxx by
Electrosource.
(h) Xxxxxxxxx has submitted business expense reimbursement
requests in amounts not to exceed $150.00. Electrosource agrees
to reimburse Xxxxxxxxx for these expenses in accordance with the
Corporation's normal business expense reimbursement practices no
later than the effective date of this Agreement.
6. NO OTHER PAYMENTS
Except as specifically described in Xxxxxxxxx 0, Xxxxxxxxx
shall not be entitled to, and hereby waives any Claims with
respect to, any other salary, bonuses, costs, severance payments,
referral payments, monies, business expenses, options, property,
benefits, attorneys' fees, vacation payments or other
considerations from Electrosource and/or its Affiliates.
7. NONASSIGNMENT
Xxxxxxxxx and his spouse, Xxxxxx X. Xxxxxxxxx, each
represent and warrant that he or she has not pledged, transferred
or assigned to any party or otherwise encumbered any Claims each
may have against Electrosource or its Affiliates, that no other
person, organization or entity has any interest in any Claims
settled hereby, and that Xxxxxxxxx and Xxxxxx X. Xxxxxxxxx each
has full power and authority to enter into and perform under this
Agreement.
8. NONADMISSION
Xxxxxxxxx acknowledges and agrees that this Agreement is not
and shall not be construed to be an admission by Electrosource of
any violation of any federal, state or local law or regulation or
of any duty owed by any one or more of Electrosource and its
Affiliates to Xxxxxxxxx and that his execution of this Agreement
is a voluntary act to provide an amicable conclusion to
Xxxxxxxxx'x employment relationship with Electrosource.
9. CONFIDENTIALITY
Xxxxxxxxx agrees that he will maintain the confidentiality
of any and all confidential information that he has received by
virtue of his employment with Electrosource and will refrain from
using such information or disclosing it to anyone other than
Electrosource or its designees. For purposes of this Agreement,
confidential information is information which Electrosource or
its Affiliates endeavor to keep confidential, including, without
limitation, employee lists, the terms of contracts and policies,
marketing plans, products and/or program designs, products,
technology, trade secrets, proprietary and financial information,
and any information provided by a third party to any one or more
of Electrosource or its Affiliates in confidence. Xxxxxxxxx
agrees that on execution of this Agreement or otherwise upon
request of the Electrosource, he will return to Electrosource any
records in his possession containing confidential information of
Electrosource or records that are the property of Electrosource
or of any of its Affiliates.
10. NO CHARGES
Xxxxxxxxx represents that he has not filed any complaints or
charges against Electrosource or its Affiliates with the Equal
Employment Opportunity Commission, the Texas Commission on Human
Rights, the New Mexico Commission on Human Rights, or with any
other local, state or federal agency or court, that Xxxxxxxxx
will not do so at any time hereafter, and that if any such agency
or court assumes jurisdiction of any complaint or charge against
Electrosource on behalf of Xxxxxxxxx, he will request such agency
or court to withdraw immediately from the matter.
11. NONDISCLOSURE
Xxxxxxxxx hereby agrees that neither Xxxxxxxxx nor any
person, organization, or entity acting on his behalf will
communicate or permit to be communicated, either directly or
indirectly, any information regarding the financial or other
terms of this Agreement except to his counsel, his accountant,
governmental agencies, or to any court involved in any action
brought by either party to enforce the terms of this Agreement.
12. OWBPA COMPLIANCE
Xxxxxxxxx acknowledges that he has read and understands all
of the terms of this Agreement. Xxxxxxxxx acknowledges that he
has been informed he may have at least twenty-one (21) days to
consider this Agreement prior to his executing it and that
Electrosource has advised Xxxxxxxxx to consult with an attorney
of his choice prior to executing this Agreement. Xxxxxxxxx
acknowledges that he signs this Agreement in exchange for the
consideration to be given to him which Xxxxxxxxx acknowledges is
adequate and satisfactory, and that neither Electrosource nor any
of its Affiliates have made any representations to Xxxxxxxxx
concerning the terms or effects of this Agreement other than
those contained in this Agreement. Xxxxxxxxx acknowledges and
agrees that if he signs this Agreement prior to the twenty-one
(21) day period he has freely and voluntarily waived his rights
under O.W.B.P.A. for the longer time period stated above.
13. REVOCATION
Xxxxxxxxx may revoke this Agreement within seven (7) days
after he signs it, and this Agreement shall be of no force or
effect with respect to either Electrosource or Xxxxxxxxx until
this seven (7) day period has expired. Any revocation must be in
writing, signed by Xxxxxxxxx and received by Electrosource by
5:00 p.m. on the seventh day after this Agreement has been signed
by Xxxxxxxxx to be effective. Such revocation must be sent by
certified mail as provided by paragraph 22 or hand-delivered to
the same address as the address to which this Agreement is to be
sent or delivered, which address is:
Electrosource, Inc.
ATTN: Xx. Xxxxx Xxxxx, General Counsel
0000 "X" Xxxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
14. CORPORATION RECORDS, FILES, AND OTHER ASSETS
Xxxxxxxxx agrees to leave with, and promptly turn over to,
the Corporation at its offices in Xxxxxx County, Texas, any and
all records (including financial and client records), books of
account, client files and materials, computer files, keys, credit
cards beepers, portable phones, furniture, fixtures, equipment,
and other assets of the Corporation now in the possession and
control of Xxxxxxxxx; provided, however, that Xxxxxxxxx shall be
entitled to keep and retain his personal letters, files, and
records maintained by Xxxxxxxxx as an employee and officer of the
Corporation. If Xxxxx Rents agrees, and upon appropriate payment
and execution of all documents, Xxxxxxxxx may continue to rent
the office furniture in the lease space described in paragraph
5(g) at his sole expense from September 16, 1995, forward.
15 OTHER REPRESENTATIONS
(a) Xxxxxxxxx agrees that the Corporation shall have the
right, from time to time, to communicate the fact of Xxxxxxxxx'x
separation from employment with the Corporation to such
employees, clients, and other persons, and in such truthful
manner as the Corporation in its sole discretion deems
appropriate; and
(b) The Corporation agrees that Xxxxxxxxx shall have the
right, from time to time, to communicate the fact of Xxxxxxxxx'x
separation from employment with the Corporation in such truthful
manner as Xxxxxxxxx in his sole discretion deems appropriate.
16. SPOUSE'S SIGNATURE
This Agreement has been executed below y Xxxxxx X.
Xxxxxxxxx, the spouse of Xxxxxxxxx, in order to evidence her
consent to and joinder in the execution and delivery by Xxxxxxxxx
of this Agreement, and by so executing this Agreement, she shall
be bound to all of the terms hereof to the extent of any
interest, community or otherwise, in any of the property or
assets of Xxxxxxxxx, including, without limitation, the payment
described in paragraph 5(a).
17. SEVERABILITY
If any provision of this Agreement, or the application
thereof to any party or under any circumstances, shall be invalid
or unenforceable to any extent, the remainder of this Agreement
and the application of such provision to other persons or
circumstances shall not be affected thereby and shall be enforced
to the greatest extent permitted by law.
18. COMPLETE AGREEMENT
This Agreement, together with attached Exhibits X-0, X-0, X-
0, and A-4 contains the entire Agreement of the parties with
respect to the subject matter hereof, supersede any prior or
contemporaneous discussions and agreements and may be modified
only by a written instrument duly executed by all parties hereto.
Xxxxxxxxx has carefully read and fully understands all the
provisions of this Agreement and acknowledges that he has not
relied upon any representations or statement, written or oral,
not set forth in this Agreement.
19. GOVERNING LAW
It is understood and agreed that this Agreement is made and
entered into in the State of Texas and shall be governed by,
construed and enforced in accordance with, ad subject to, the
laws of the State of Texas and is performable in Xxxxxx County,
Texas. The parties agree that any actions to enforce this
Agreement or relating to Xxxxxxxxx'x employment or the
termination of such employment with Electrosource shall be
brought in Xxxxxx County, Texas.
20. ATTORNEYS' FEES
In the event of any suit, action, or proceeding between the
parties with respect to this Agreement, including, without
limitation, any suit to enforce, interpret, or construe this
Agreement or seeking of declaration of rights and/or remedies
available hereunder or damages for the breach hereof, the
prevailing party or parties in any such action shall be entitled
to recover from the non prevailing party or parties reasonable
attorneys' fees, expenses, and court costs.
21. NOTICES
All notices required or permitted to be given under this
Agreement shall be given in writing and shall be deemed given
upon the first to occur on either (a) actual delivery to the
party charged with such notice, or (b) deposit in the United
States mail, certified mail, return receipt requested, postage
prepaid, in an envelope or of the container addressed to the
party charged with such notice at the address for such party set
forth below:
Corporation: Electrosource, Inc.
0000 "X" Xxxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxx
Xxxxxxxxx: 0000 Xxxxxx Xxxx, XX
Xxxxxxxxxxx, Xxx Xxxxxx 00000
22. BINDING EFFECT
This Agreement shall be binding upon Xxxxxxxxx, Xxxxxx X.
Xxxxxxxxx, and each of their respective heirs, and assigns and
Electrosource and its assigns.
23. COUNTERPARTS
This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which shall
together constitute one and the same instrument.
24. REPRESENTATIONS
The representations, warranties, and agreements of the
parties contained in this Agreement shall survive the execution
of this Agreement and the consummation of the transactions
contemplated hereby.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the dates stated below in 1995, consisting of 17
pages and Exhibits X-0, X-0, X-0, and A-4, to be effective the
eighth working day after Xxxxxxxxx has executed this Agreement in
the presence of a notary, provided he has not revoked his
acceptance in the interim, as provided in paragraph 13.
ACKNOWLEDGMENT
I hereby verify that the foregoing Separation, Release and
Indemnity Agreement is true and correct to the best of my
knowledge.
ELECTROSOURCE, INC.
By: /s/
XXXXXXX X. XXXXXXX as
CHIEF EXECUTIVE OFFICER AND
AND CHAIRMAN OF THE BOARD
THE STATE OF TEXAS
COUNTY OF XXXXXX
BEFORE ME, the undersigned Notary Public, personally
appeared XXXXXXX X. XXXXXXX, as Chief Executive Officer and
Chairman of the Board of Electrosource, Inc., known to me to be
the person whose name is subscribed to the foregoing instrument
and acknowledged to me that he executed the instrument for the
purposes and consideration therein expressed; that he executed
the instrument as his free and voluntary act and deed after
reading it fully and having conferred with his attorney; that the
instrument was executed by him without any threat, force, fraud
or duress; and that XXXXXXX X. XXXXXXX, at the time of the
execution of this Separation, Release and Indemnity Agreement,
was completely sober, sane and capable of understanding the
character of his acts and deeds and was in complete control of
his faculties and capable of executing this instrument and
understanding the significance of his acts.
Given under my hand and seal of office this 22nd day of
September, 1995
/s/
NOTARY PUBLIC, STATE OF TEXAS
Xxxxxx X. Xxxxxxx
(Printed name of notary)
8/31/1996
Date commission expires
ACKNOWLEDGMENT
I hereby verify that the foregoing Separation, Release and
Indemnity Agreement is true and correct to the best of my
knowledge.
XXXXXXX X. XXXXXXXXX
By: /s/
XXXXXXX X. XXXXXXXXX
THE STATE OF NEW MEXICO
COUNTY OF BERNALILLO
BEFORE ME, the undersigned Notary Public, personally
appeared XXXXXXX X. XXXXXXXXX, known to me to be the person whose
name is subscribed to the foregoing instrument and acknowledged
to me that he executed the instrument for the purposes and
consideration therein expressed; that he executed the instrument
as his free and voluntary act and deed after reading it fully and
having conferred with his attorney; that the instrument was
executed by him without any threat, force, fraud or duress; and
that XXXXXXX X. XXXXXXXXX, at the time of the execution of this
Separation, Release and Indemnity Agreement, was completely
sober, sane and capable of understanding the character of his
acts and deeds and was in complete control of his faculties and
capable of executing this instrument and understanding the
significance of his acts.
Given under my hand and seal of office this 23 day of
September, 1995
/s/
NOTARY PUBLIC, STATE OF NEW MEXICO
Xxxx Xxxxxx
(Printed name of notary)
June 30, 1999
Date commission expires
ACKNOWLEDGMENT
I hereby verify that the foregoing Separation, Release and
Indemnity Agreement is true and correct to the best of my
knowledge.
XXXXXX X. XXXXXXXXX
By: /s/
XXXXXX X. XXXXXXXXX
THE STATE OF NEW MEXICO
COUNTY OF BERNALILLO
BEFORE ME, the undersigned Notary Public, personally
appeared XXXXXX X. XXXXXXXXX, known to me to be the person whose
name is subscribed to the foregoing instrument and acknowledged
to me that she executed the instrument for the purposes and
consideration therein expressed; that she executed the instrument
as her free and voluntary act and deed after reading it fully and
having conferred with her attorney; that the instrument was
executed by her without any threat, force, fraud or duress; and
that XXXXXX X. XXXXXXXXX, at the time of the execution of this
Separation, Release and Indemnity Agreement, was completely
sober, sane and capable of understanding the character of her
acts and deeds and was in complete control of her faculties and
capable of executing this instrument and understanding the
significance of her acts.
Given under my hand and seal of office this 23 day of
September, 1995
/s/
NOTARY PUBLIC, STATE OF NEW MEXICO
Xxxx Xxxxxx
(Printed name of notary)
June 30, 1999
Date commission expires
