SEPARATION AGREEMENT
Exhibit
10.52
I,
Xxxxxxx X. Xxxxxxx ("Employee," "me" or "I"), understand that I ceased to be
an
officer of American Technology Corporation (the "Company") on December 16,
2005
(the "Termination Date"). I will remain an employee of the Company from the
Termination Date through January 3, 2006 (the "Separation Date"). The Company
has agreed that in exchange for my covenants in this Agreement, including my
execution of the Release attached as Exhibit C, and the promises, releases,
and
covenants herein, the Company will pay me severance in the amount of $46,250
(Forty Six Thousand and Two Hundred and Fifty Dollars and No Cents) payable
in
accordance with the Company's regular payroll practices at the rate of my base
compensation in effect immediately prior to the Separation Date, until such
cash
benefit has been paid in full, and will be subject to standard withholdings
and
deductions. Notwithstanding the foregoing, all amounts which are or will be
unpaid as of March 15, 2006, will be paid on or before that date, subject to
standard withholding and deductions. The Company will also pay on my behalf
the
premiums for continuing health benefits under COBRA, until the earlier to occur
of my being eligible for health care coverage through my next employer, or
March
31, 2006. The benefits described in the preceding two sentences are referred
to
in this Agreement as the "Severance Benefits." I understand that I am not
entitled to the Severance Benefits unless and until I sign the Release in the
form attached hereto as Exhibit C (the "Release") within
21 days after the Separation Date,
and the
revocation period has expired without being exercised. I further understand
that
I am not entitled to the Severance Benefits unless I remain an employee of
the
Company continuously from the Termination Date through the Separation Date.
I
understand and agree that in addition to these Severance Benefits, the Company
will pay me all of my accrued salary and vacation, to which I am entitled by
law.
I
acknowledge my continuing obligations under my American Technology Corporation
Proprietary Information and Inventions Agreement for Employees (attached as
Exhibit A). Pursuant to the American Technology Corporation Proprietary
Information and Inventions Agreement for Employees, I understand that among
other things, I must not use or disclose any confidential or proprietary
information of the Company and I must immediately return all Company property
and documents (including all embodiments of proprietary information) and all
copies thereof in my possession or control. I acknowledge that I have acquired
no rights by license or otherwise in any ["Confidential Information"] as such
term is defined in the American Technology Corporation Proprietary Information
and Inventions Agreement for Employees. I also acknowledge the Mutual Agreement
to Arbitrate (attached as Exhibit B) between myself and the Company dated June
19, 2004, and agree to that Mutual Agreement to Arbitrate's validity and
application to any disputes arising under this Agreement. I also agree that
any
arbitration regarding this Agreement shall take place in San Diego County,
California.
I
agree
not to make any statement or take any action which would damage the reputation
or promotion of the Company or its products.
If
either
I or the Company commences an action against the other party to enforce any
of
the terms hereof or in the Release or because of the breach by such other party
of any of the terms hereof or in the Release, the prevailing party shall be
entitled, in addition to any other relief granted, to all actual out-of-pocket
costs and expenses incurred by such prevailing party in connection with such
action and the enforcement and collection of any judgment rendered therein,
including, without limitation, all reasonable attorneys' fees, consultant fees
and expert witness fees, and a right to such costs and expenses shall be deemed
to have accrued upon the commencement of such action and shall be enforceable
whether or not such action is prosecuted to judgment.
This
Agreement, including Exhibits A, B and C hereto, constitutes the complete,
final
and exclusive embodiment of the entire agreement between the Company and me
with
regard to the subject matter hereof. I am not relying on any promise or
representation by the Company that is not expressly stated herein. This
Agreement may only be modified by a writing signed by both me and a duly
authorized officer of the Company.
I
accept
and agree to the terms and conditions stated above:
|
December
23, 2005
|
/s/
Xxxxxxx Xxxxxxx
|
|||||
|
Date
|
Xxxxxxx
X. Xxxxxxx
|
|||||
| December 23, 2005 |
AMERICAN
TECHNOLOGY CORPORATION
|
|||||
|
Date
|
||||||
|
By:
|
/s/ Xxxx X. Xxxxxx | ||||
|
Title:
|
President and Chief Operating Officer and | ||||
| Interim Chief Financial Officer | |||||
EXHIBIT
C
Release
In
exchange for the consideration provided to me by the Separation Agreement dated
December 23, 2005 (the "Separation Agreement") that I am not otherwise entitled
to receive, I hereby unconditionally and completely release the Company and
its
directors, officers, employees, shareholders, partners, agents, attorneys,
predecessors, successors, parent and subsidiary entities, insurers, affiliates,
and assigns from any and all claims, liabilities and obligations, both known
and
unknown, that arise out of or are in any way related to events, acts, conduct,
or omissions occurring prior to the Separation Date (as defined in the
Separation Agreement). This general release includes, but is not limited to:
(1)
all claims arising out of or in any way related to my employment with the
Company or the termination of that employment; (2) all claims related to my
compensation or benefits from the Company, including salary, bonuses,
commissions, vacation pay, expense reimbursements, severance pay, fringe
benefits, stock, stock options, or any other ownership interests in the Company;
(3) all claims for breach of contract, wrongful termination, and breach of
the implied covenant of good faith and fair dealing; (4) all tort claims,
including claims for fraud, defamation, emotional distress, and discharge in
violation of public policy; and (5) all federal, state, and local statutory
claims, including claims for discrimination, harassment, retaliation, attorneys’
fees, or other claims arising under the federal Civil Rights Act of 1964 (as
amended), the federal Americans with Disabilities Act of 1990, the federal
Age
Discrimination in Employment Act of 1967 (as amended) (“ADEA”), and the
California Fair Employment and Housing Act (as amended) and other analogous
state and local laws or regulations.
In
giving
this release, which includes claims which may be unknown to me at present,
I
hereby acknowledge that I have read and understand Section 1542 of the Civil
Code of the State of California which reads as follows:
A
general release does not extend to claims which the creditor does not know
or
suspect to exist in his favor at the time of executing the release, which if
known by him must have materially affected his settlement with the
debtor.
I
hereby
expressly waive and relinquish all rights and benefits under Section 1542 and
any law or legal principle of similar effect in any jurisdiction with respect
to
claims released hereby.
I
acknowledge that I am knowingly and voluntarily waiving and releasing any rights
I may have under the federal Age Discrimination in Employment Act of 1967,
as
amended ("ADEA"). I also acknowledge that the consideration given for the waiver
in the above paragraph is in addition to anything of value to which I was
already entitled. I have been advised by this writing, as required by the ADEA
that: (a) my waiver and release do not apply to any claims that may arise after
my executing of this Release; (b) I should consult with an attorney prior to
executing this Release; (c) I have twenty-one (21) days within which to consider
this Release (although I may choose to voluntarily execute this Release
earlier); and (d) as set forth in the following paragraph, I have seven (7)
calendar days following the execution of this Release to revoke the Release,
in
which case I will not be entitled to the Severance Benefits set forth in the
Separation Agreement.
C-1
Within
three (3) calendar days of signing and dating this Release, I agree to deliver
the executed original of this Release to Xxxxx Xxxxx, American Technology
Corporation, 00000 Xxxxxxx Xxxxx Xxxxx Xxxxx, Xxx Xxxxx, XX 00000. However,
I
and the Company acknowledge and agree that I may revoke this Release for up
to
seven (7) calendar days following my execution of this Release and it shall
not
become effective or enforceable until the revocation period has expired. I
and
the Company further acknowledge and agree that such revocation must be in
writing addressed to and received by Xxxxx X. Xxxxxxx not later than midnight
on
the 7th
day
following execution of this Release by me. Should I revoke this Release under
this paragraph, this Release shall not be effective or enforceable and I will
not receive the Severance Benefits set forth in the Separation
Agreement.
I
accept
and agree to the terms and conditions stated above:
|
December
23, 2005
|
/s/
Xxxxxxx Xxxxxxx
|
||
|
Date
|
Xxxxxxx
X. Xxxxxxx
|
||
C-2
