Exhibit 10.36
RESIGNATION AGREEMENT AND GENERAL RELEASE
THIS RESIGNATION AGREEMENT AND GENERAL RELEASE, made and entered into as of
this 21st day of June, 1996, by and between DAVID J. BIRKENSHAW (hereinafter
referred to as the "Employee") and ATLAS CORPORATION, a corporation organized
under the laws of Delaware (hereinafter referred to as the "Company").
W I T N E S S E T H :
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WHEREAS, the Employee has been employed by the Company as its Chairman and
Chief Executive Officer, pursuant to the provisions of an employment agreement
between the Company and the Employee dated September 22, 1993 as the same has
been amended from time to time (the "Employment Agreement"); and
WHEREAS, the Employee and the Company deem it to be in their mutual
interest that Employee's employment with the Company shall terminate; and
WHEREAS, the Employee and the Company desire to settle fully and finally
all outstanding matters between them, including, but in no way limited to, any
outstanding matters that might arise out of the Employment Agreement, Employee's
employment with the Company and the termination thereof;
NOW, THEREFORE, in consideration of the premises and mutual promises herein
contained, it is agreed as follows:
1. Termination Date. The parties agree that the Employee's employment by
the Company shall terminate effective as of June 21, 1996 (the "Termination
Date"). Employee understands and agrees that, effective as of the Termination
Date, he is no longer authorized to incur any expenses, obligations or
liabilities on behalf of the Company. Employee acknowledges that he has
submitted, and has been paid in full, for all outstanding expenses incurred or
claimed by him through such date.
2. Resignation. The execution of this Agreement shall serve as the
resignation by the Employee as an officer, director and employee of the Company
and of each "Affiliate" of the Company (as that term is defined by Paragraph
15(c) of this Agreement) and as a trustee, fiduciary or administrator of any
employee benefit plan of the Company or an Affiliate, effective as of the
Termination Date.
3. Terms of Separation. In consideration of the agreements by Employee
provided herein, including without limitation the release by the Employee in
Paragraph 4 hereof, the Company agrees to provide the following payments and
benefits to the Employee [as soon as
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practicable after this Agreement becomes irrevocable pursuant to the provisions
of Section 10 hereof:]
(a) The Company shall pay to the Employee in full satisfaction of any
claims by him against the Company or any Affiliate for salary, bonus, vacation,
holiday, [expense or similar reimbursement,] pension or profit sharing benefits,
separation or severance pay and any other claim for compensation or benefits of
any kind whatsoever under the Employment Agreement or otherwise, (i) a single
lump sum payment of $337,500 (less applicable withholding for payroll and other
taxes), which amount shall be applied in payment of those expenses, advances,
loans, other amounts owed to the Company and its Affiliates and other items
listed in Exhibit D hereto which are presently known to the Company, and (ii) an
additional payment totaling $112,500 to be paid in six equal monthly
installments of $18,750 (less applicable withholdings for payroll and other
taxes), which amount shall be reduced by the amount of any expenses, advances,
loans, other amounts owed to the Company and its Affiliates or similar items
which the Company or its Affiliates may become obligated to pay after the date
hereof but which are not presently known to the Company and its Affiliates. Such
payments shall be made by depositing such amount to the Employee's checking
account or such other account, or by check, as Employee may authorize in
writing.
(b) The Company and the Employee agree that any stock options and
restricted stock or other awards which may have been granted to Employee under
the Company's Long Term Incentive Plan are hereby canceled and the Employee
hereby waives any claims to or in respect of such stock options or stock awards.
Immediately following the Termination Date, the Company agrees that it shall
award to Employee an option to purchase an aggregate of 200,000 shares of the
Company's common stock at an exercise price of $1.50 per share, which option
shall be exercisable in whole or in part at any time prior to June 20, 1999. If
not exercised by June 20, 1999, such stock option shall expire. The terms and
conditions of such stock option award shall reflected in a written option
agreement between the Company and the Employee in the form attached hereto as
Exhibit C.
(c) The Employee shall be placed on an unpaid personal leave of
absence as an employee through December 18, 1996. During such leave of
absence, Employee shall not have any duties or responsibilities, shall not have
the authority to bind the Company in any way or to incur any liabilities on
behalf of the Company or to hold himself out as acting for or on behalf of the
Company in any way.
(d) The Company shall make available to the Employee through June 20,
1997 coverage under the Company's medical benefits plan for himself and his
dependents under the same terms and conditions, including required
contributions, as apply to active employees. Thereafter, the Employee may
purchase, if eligible, continuation medical benefits coverage to the extent and
for the period provided by federal law.
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(e) Distributions or payments to Employee shall be made under any
tax-qualified employee benefit plans of the Company in which the Employee
participated prior to the Termination Date, to the extent provided by such
plans.
(f) Subject to Employee providing the Company with documentation and
records satisfactory to the Company, the Company agrees to treat certain
Canadian securities trades undertaken by Employee in the name of the Company in
securities of Kyrgoil Corp. as for the account of the Employee individually. At
such time as the Company shall receive the proceeds of any such trades, it shall
remit to Employee the net amount received by the Company less all taxes,
expenses, fees and similar charges of any kind which may be incurred by the
Company. Employee represents that such securities trades were undertaken for his
own account and without any prior knowledge by any officer or director of the
Company.
(g) In exchange for the release of any and all claims by Employee for
personal and business moving, relocation or similar expenses, and for the other
agreements of the Employee hereunder, the Company agrees to forgive the
repayment of the $60,000 unsecured housing loan, and any accrued but unpaid
interest thereon, which the Company made to the Employee in connection with his
relocation to Denver, Colorado.
4. Release by Employee. In consideration for the promises contained
herein, Employee hereby irrevocably and unconditionally releases, acquits and
forever discharges for himself and his heirs, executors, administrators,
successors and assigns, the Company and each of the Company's parent companies,
stockholders, predecessors, successors, assigns, agents, directors, officers,
employees, representatives, attorneys, divisions, subsidiaries, Affiliates (and
stockholders, agents, directors, officers, employees, representatives and
attorneys of such, parent companies, divisions, subsidiaries and Affiliates),
and all persons acting by, through, under or in concert with any of them
(collectively, the "Company Releasees"), or any of them, from any and all
charges, complaints, claims, liabilities, obligations, promises, agreements,
controversies, damages, actions, causes of action, suits, rights, demands,
costs, losses, debts and expenses (including attorneys' fees and costs actually
incurred) of any nature whatsoever, known or unknown, suspected or unsuspected,
including, but not limited to, claims arising directly or indirectly out of the
Employee's employment by the Company, and the termination of the Employee's
employment, claims under the Employment Agreement, claims under the Long Term
Incentive Plan, claims for compensation of any kind, claims for workers'
compensation, claims in equity or law for wrongful discharge, claims arising in
tort, personal injury, defamation, mental anguish, emotional distress, injury to
health and reputation, claims under federal, state or local laws prohibiting
discrimination on account of age, national origin, race, sex, handicap, religion
and similar classifications, claims under the Civil Rights Acts of 1866 and
1871, as amended; the Civil Rights Act of 1964, Title VII, as amended; the Civil
Rights Act of 1991; the Age Discrimination in Employment Act of 1967, as
amended; the Employee Retirement Income Security Act of 1974, as amended; the
Americans with Disabilities Act of 1990; similar Colorado laws, including
Colorado Rev. Stat. (S) 24-34-402(1)(a), (S) 24-34-301(1)(1994), and similar
claims under the laws of Canada and any province or political
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subdivision thereof ("Claim" or "Claims"), which Employee now has, or ever
claimed to have, or could claim against each or any of the Company Releasees.
Employee hereby agrees to forego any right to file any charges or complaints
with any governmental agencies or a lawsuit against the Company Releasees under
any of the laws referenced in this paragraph or with respect to any matters
covered by the release in this paragraph. Notwithstanding the foregoing, the
release by the Employee in this paragraph shall not limit the right of the
Employee to seek to enforce the provisions of this Agreement.
5. Confidentiality and Non-Disclosure Agreements. (a) Employee
acknowledges that any confidentiality, proprietary rights or nondisclosure
agreement(s) in favor of the Company or the Company Releasees, including without
limitation, those agreements contained in Paragraph 7 of the Employment
Agreement, which he may have entered into in connection with his employment
("Nondisclosure Agreement(s)") with the Company, is understood to survive, and
does survive, any termination of such employment, and accordingly nothing in
this Agreement shall be construed as terminating, limiting or otherwise
affecting any such Nondisclosure Agreement(s) or Employee's obligations
thereunder. Without limiting the generality of the foregoing, no time period set
forth in this Agreement shall be construed as shortening or limiting the term of
any such Nondisclosure Agreement(s), which term shall continue as set forth
therein.
(b) Employee agrees that, except to the extent compelled by law or legal
process, he (i) will not hereafter disclose or communicate confidential
information of the Company, its Affiliates or their customers to any third party
(including as a third party for this purpose, employees and former employees of
the Company, its Affiliates and governmental agencies), (ii) will not make use
of confidential information of the Company, its Affiliates or their customersfor
his own behalf, or on behalf of any third party, and (iii) will not facilitate,
assist, persuade or attempt to facilitate, assist or persuade any third party to
commence or prosecute any legal proceedings against the Company, its Affiliates
and their customers and any Company Releasee. In the event Employee receives, is
notified of or is served with a subpoena, summons, complaint, order, notice,
notice of deposition or any other legal process or documents (collectively,
"Legal Process") in connection with any legal or quasi-legal proceeding,
including but not limited to any action at law or equity, arbitral,
administrative proceeding or governmental investigation (collectively,
"Litigation"), relating to the performance of his services as an employee,
officer or director of the Company or its Affiliates or which, if complied with
by Employee, might compel or lead to the disclosure by Employee of confidential
information of the Company, its Affiliates or their customers, the Employee
shall promptly, but in no event later than 2 business days after receipt unless
2 business days is not reasonable under the circumstances, provide the Company
with a copy of the same, and shall in no event and under no circumstances
disclose any such information prior to the last date specified in the Legal
Process for making such disclosure. If the Company wishes Employee to contest
such Legal Process or to be represented by counsel selected by it, the Company
shall as soon as possible, but in no event later than 1 day prior to the date
specified in such Legal Process for complying with the same, (i) notify Employee
in writing that it wishes Employee to contest such Legal
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Process and agree to pay Employee the costs and expenses of attorneys' fees
incurred by the Employee in connection with contesting such Legal Process, not
to exceed $5,000, or (ii) notify Employee that counsel selected by the Company
shall, at the sole expense of the Company, participate in or control the
response of the Employee to such Legal Process insofar as such response relates
to the Employee's performance of services for the Company or the possible
disclosure of confidential information of the Company, its Affiliates or their
customers. Employee agrees to take such lawful action in connection with
contesting any such Legal Process as the Company shall reasonably request from
time to time. Employee agrees to promptly notify the Company of any action taken
or proposed to be taken from time to time in connection with any Legal Process
or Litigation which might lead to the disclosure of the confidential information
of the Company, its Affiliates or their customers, and to make available to the
Company any Legal Process of documents related thereto. The Employee further
agrees to cooperate with the Company by providing a reasonable amount of
testimony relating to any Litigation, to the extent requested by the Company.
6. Company Property and Information. Employee has returned or will
immediately return to the Company all Company Information and related reports,
customer lists, trade secrets notes, maps, files, blueprints, drawings,
memoranda, manuals, and records; credit cards, cardkey passes; door and file
keys; automobiles, computer access codes, computer discs, magnetic media or
business information in any form; software; other business information of the
Company Releasees; and other physical or personal property which Employee
received or prepared or helped prepare in connection with his employment; and
Employee has not retained and will not retain any copies, duplicates,
reproductions, or excerpts thereof in any form. The term "Company Information"
as used in this Agreement includes, without limitation, information received
from third parties, other confidential business or financial information, and
other materials and information described in this paragraph.
7. Confidentiality of this Agreement. Employee represents and agrees that
he will keep the terms and fact of this Resignation Agreement and General
Release completely confidential, and that he will not hereafter disclose any
information concerning this Resignation Agreement and General Release to anyone,
except to his immediate family and his legal and tax advisors; provided that
such persons agree to keep such information confidential and not disclose it to
others.
8. Consideration. Employee acknowledges that the Company is not otherwise
required to enter into this Agreement, that the payments and agreements in this
Agreement are in addition to anything of value to which he is already entitled,
that the consideration to be received by him under this Agreement is adequate,
and that such promises and agreements are made by the Company because of his
agreement to provide the releases in Paragraph 4 hereof.
9. Receipt of Agreement. Employee acknowledges receiving this Agreement on
June 21, 1996 and that he has twenty-one (21) days from that date to consider
the terms of this Agreement.
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10. REVOCABILITY. This Agreement is revocable by Employee for seven (7)
days after it is signed by him. This Agreement shall not be effective or
enforceable until the period for revocation has expired.
11. ARBITRATION. In the event there shall arise any question or dispute
between the parties with respect to the provisions of this Resignation Agreement
and General Release or its interpretation, such dispute shall be settled
exclusively by arbitration in Denver, Colorado in accordance with the commercial
rules then in effect of the American Arbitration Association. Judgment upon an
award rendered by the arbitrator(s) may be entered in any court of competent
jurisdiction, including courts in the state of Colorado. Any award so rendered
shall be final and binding upon the parties hereto. All costs and expenses of
the arbitrator(s) and all costs and expenses of experts, attorneys, witnesses
and other persons retained by the parties shall be borne by them respectively.
In the event that injunctive relief shall become necessary under this Agreement,
either of the parties shall have the right to seek provisional remedies prior to
an ultimate resolution by arbitration.
12. NO ADMISSION. This Resignation Agreement and General Release shall
not in any way be construed as an admission by the Company that it has acted
wrongfully with respect to the Employee in connection with his employment by the
Company or the termination thereof. Except with respect to the compensation
payable to Employee under Paragraph 3 hereof, the Company specifically disclaims
any liability to the Employee, and wrongful acts against Employee, on the part
of itself, and the Company Releasees.
13. VOLUNTARY AGREEMENT. Employee represents and agrees that he fully
understands his right to discuss all aspects of this Resignation Agreement and
General Release with his private attorney, that he has availed himself of this
right, that he has carefully read and fully understands all of the provisions of
this Resignation Agreement and General Release, and that he is voluntarily
entering into this Resignation Agreement and General Release.
14. PRESS RELEASE. The termination of the Employee's employment with the
Company shall be announced in a notice to employees of the Company and a press
release in the form annexed to this Agreement as Attachments A and B,
respectively. Except as set forth in Attachment A, or as required by law or
legal process, neither the Company nor the Employee shall issue any press
release, or make any statements to or grant any interview to any press or media
representative relating to the termination of the Employee's employment with the
Company or any matter referred to in this Agreement. Without limitation of the
foregoing, the Employee further agrees that he will not make any statements to
any party that could reasonably be construed as damaging to the business, image
or reputation of the Company, its Affiliates or their respective management.
15. GENERAL. (a) Employee represents and acknowledges that in executing
this Resignation Agreement and General Release, he does not rely and has not
relied upon any representation, inducement agreement or statement not set forth
herein made by any of the
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Company Releasees or by any of the Company Releasees' agents, representatives,
or attorneys with regard to the subject matter, basis or effect of this
Resignation Agreement and General Release or otherwise.
(b) The provisions of this Resignation Agreement and General Release
are severable, and if any part of it is found to be unenforceable, the other
paragraphs shall remain fully valid and enforceable. This Resignation Agreement
and General Release shall survive the termination of any arrangements contained
herein.
(c) As used herein, the term "Affiliate" shall mean any corporation
or business entity controlling, controlled by or under common control with the
Company, including as an Affiliate, Granges Inc., Phoenix Financial Holdings
Inc. and Zamora Gold Corporation and the affiliates of each of such companies.
(d) The Employee represents that he has not assigned or transferred
or purported to assign or transfer any claim or matter released herein.
(e) This Resignation Agreement and General Release sets forth the
entire agreement between the parties hereto, and fully supersedes any and all
prior agreements or understandings between the parties hereto pertaining to the
subject matter hereof.
(f) The effect, intent and construction of this Agreement shall be
governed by the laws of Colorado, without giving effect to the conflict of laws
rules thereof.
IN WITNESS WHEREOF, the parties have duly executed this Resignation
Agreement and General Release as of the date first set forth above.
/s/ David J. Birkenshaw
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DAVID J. BIRKENSHAW
ATLAS CORPORATION
By: /s/ J.H. Dunnett
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Name: James H. Dunnett
Title: Director
EXHIBIT A
EMPLOYEE ANNOUNCEMENT
June 21, 1996
TO: All Employees
FROM: Gary E. Davis
Today David Birkenshaw resigned as CEO and Chairman of the Company. As
further discussed in the attached press release which was just released, David
has decided to leave the Company so he can dedicate more time to the pursuit of
other business interests.
Since David's association with Atlas in 1993, the Company has significantly
strengthened its balance sheet and made several notable acquisitions, including
the Granges control block, the Doby George gold property and the Phoenix public
shell through which we intend to pursue development of industrial minerals.
Given the ongoing efforts to restart Gold Bar, pending the signing of an
appropriate gold hedging program, and the resulting commitment of both monies
and manpower to this, it was David's opinion that this new direction was
better left to others for implementation.
I am sure you will join me in thanking David and in wishing him the best in
his new endeavors.