exv10w1



 






Exhibit 10.1








WAIVER AND RELEASE AGREEMENT



Douglas Nesbit (“Employee”) and HEI, Inc. (“Employer”) freely and voluntarily enter into this
Waiver and Release Agreement (“Agreement”), intending to be legally bound, according to the terms
set forth below.





	1.  	Recitals: Employee and Employer have agreed to end their employment relationship.
Employee’s last day of employment with Employer was Friday, January 14, 2005 (the “Separation
Date”). Employee acknowledges that he has received all accrued wages and PTO due. The
parties hereto desire to settle all claims and controversies between them under the terms and
conditions of this Agreement.






	2.  	Payment Terms: Employee acknowledges that Employer, in exchange for the agreements set forth
below, agrees to pay the amount of $35,000 (Thirty Five Thousand and no/100 Dollars), less
deductions required by law (“Severance Payment”), lump sum payment which supersedes payment
terms from the agreement of October 1, 2003. The Severance Payment shall be paid to Employee
on the sixteenth (16th) day after receipt of a fully-executed copy of this Agreement by
Employer and if this Agreement has not been revoked by such date.






	3.  	Release by Employee: In consideration of the payment described above, Employee, individually
and on behalf of his spouse, heirs, administrators, executors, assigns, and any and all others
claiming rights through him or acting on his behalf, hereby irrevocably and unconditionally
releases, waives and forever discharges Employer and all of its parents, subsidiaries, or
otherwise affiliated corporations, partnerships or business enterprises, and their respective
present, future and former directors, shareholders, officers, employees, assigns,
representatives, agents, insurers, attorneys, successors, predecessors, and employee benefit
administrators (hereinafter “Released Parties”), from any and all causes of action, actions,
complaints, debts, claims, charges, demands, losses, damages (money or otherwise), costs,
attorneys’ fees, promises, obligations, and liabilities of any kind whatsoever, state,
federal, in law or in equity, whether known or unknown, that he may have or claim to have
against the Released Parties, in any way relating to or arising out of or in any way connected
with Employee’s employment with Employer, or the termination of that employment from the
beginning of time through the date of the execution of this Agreement. This release includes,
but is not limited to:






	 	a.  	All claims for breach of expressed or implied contract, promissory estoppel,
negligent and fraudulent misrepresentation, defamation, unjust enrichment, statutory
claims for wages, vacation, deferred compensation and penalties, discrimination,
wrongful termination, or any other theory of statutory, contract or tort liability;






	 	b.  	All claims for mental anguish, pain and suffering, damage to reputation,
punitive damages, attorneys’ fees, wages, bonuses, penalties, equity, stock, fringe
benefits, deferred compensation, severance pay or any other compensation; and






	 	c.  	All claims under federal, state or local laws prohibiting discrimination or
retaliation, including but not limited to the Age Discrimination in Employment Act of
1967, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the
Family Medical




 









 












	 	   	Leave Act, the Americans with Disabilities Act, the National Labor Relations Act,
the Employee Retirement Income Security Act of 1974; the Fair Labor Standards Act of
1938; the Worker Adjustment and Retraining Act, the Older Workers Benefits and
Protection Act, the Sarbanes-Oxley Act, the Minnesota Human Rights Act, the
Minnesota Whistleblower Statute, and any other federal or state law relating to
employment.




Employee agrees not to pursue or bring before any federal, state or other governmental
authority or court any claim, complaint or charge against any of the Released Parties relating to
any of the matters released hereby, and further, Employee agrees that he is not entitled to any
remedy or relief if he were to pursue any such claim, complaint or charge.





	5.  	Mutual Non-Disparagement: Employee agrees not to make any disclosures, issue any
statements or otherwise cause to be disclosed any information, which is designed, intended, or
might reasonably be anticipated to disparage, criticize or denigrate the Employer, its
business, products or personnel.
	 
	   	Employer agrees that it will not make any comments relating to you which are critical,
derogatory or which may tend to injure your professional reputation. Employer agrees that
if it is contacted by any prospective employers seeking reference information, it shall
provide only dates of employment, position, and salary.






	4.  	Mutual Confidentiality: Employee and Employer agree to keep this Agreement confidential
and will not communicate the terms of this Agreement, or the fact that such Agreement exists,
to any third party except to the immediate family, accountants, legal or financial advisors of
Employee or to Employer’s Board of Directors and Officers of the Company, or as otherwise
appropriate or necessary as required by law or court order.






	5.  	ADEA Waiver and Release by Employee: Employee acknowledges that Employee is knowingly and
voluntarily waiving and releasing any rights Employee may have under the federal Age
Discrimination in Employment Act of 1967, as amended, and the Older Workers Benefit Protection
Act, as amended, (“ADEA Waiver and Release”). The ADEA Waiver and Release does not apply to
any claims under the ADEA that may arise after the date Employee signs this Agreement. BY
SIGNING THIS AGREEMENT, EMPLOYEE ACKNOWLEDGES THAT EMPLOYER HAS ADVISED HIM TO DISCUSS THIS
ADEA WAIVER AND RELEASE AGREEMENT WITH AN ATTORNEY BEFORE SIGNING THIS AGREEMENT. Employee
acknowledges and agrees that the Employer are not responsible for any of his costs, expenses,
and attorneys’ fees, if any, incurred in connection with the review and signing of this
Agreement. In addition, Employee acknowledges and states that he has been given a period of at
least twenty-one (21) days in which to consider the terms of this Agreement. If Employee
chooses to waive the twenty-one (21) day period, he hereby represents that he has done so
voluntarily without any pressure by Employer.






	6.  	Right to Rescind this Agreement: Employee acknowledges that he has the right to rescind this
Agreement for any reason within fifteen (15) calendar days after he signs it “Rescission
Period”. This Agreement will not become effective or enforceable unless and until the Employee
has not rescinded the Agreement and the rescission period has expired. To effectively rescind
the Agreement, the rescission must be in writing and hand-delivered or mailed to Employer. If
hand-delivered, the rescission must be (a) addressed to Human Resources at HEI, Inc., and (b)
delivered to Human Resources within the Rescission Period. If mailed, the rescission must be
(a)





 









 











	 	postmarked within day Rescission Period, (b) addressed to Human Resources at 4801 North
63rd Street, Boulder CO, 80301, and (c) sent by certified-mail, return receipt
requested. The rescission period begins to run on the date the Employee received this
Agreement, which was Friday, January 14, 2005.
	 
	7.  	Non-Disclosure: The terms of the existing non-disclosure and/or confidentiality agreement
previously entered into by Employee and attached hereto as Exhibit A shall survive the
termination of Employee’s employment relationship.
	 
	8.  	Company Property: Employee represents and warrants that he has returned all property of the
Released Parties in his possession, including but not limited to, documents, manuals,
pertinent business contacts (names and addresses), shareholder lists, software, computers and
computer disks, notes, keys, cellular phone, and other articles or equipment.
	 
	9.  	Unemployment Compensation: Employer agrees not to contest or dispute Employee’s application
for unemployment compensation.
	 
	10.  	Non-Liability: The parties agree that this Agreement is a compromise of potential claims,
and that this Agreement does not constitute an admission of liability or an admission against
interest of any party.
	 
	11.  	Mutual Costs for Breach: In the event Employee made a false representation in this Agreement
or at some time violates or otherwise breaches this Agreement, he shall be subject to legal
and injunctive relief and shall be liable for the reasonable costs and expenses (including
attorneys’ fees) incurred by Employer in the event Employer, whether by arbitration or in a
court of law, prevails in any action to enforce this Agreement.
	 
	   	In the event Employer made a false representation in this Agreement or at some time violates
or otherwise breaches this Agreement, Employer shall be subject to legal and injunctive
relief and shall be liable for the reasonable costs and expenses (including attorneys’ fees)
incurred by Employee in the event Employee, whether by arbitration or in a court of law,
prevails in any action to enforce this Agreement.
	 
	12.  	Severability: If any provision of this Agreement is declared by any court of competent
jurisdiction to be invalid for any reason, such invalidity shall not affect the remaining
provisions of this Agreement, which shall be fully severable, and given full force and effect.
	 
	13.  	Choice of Law: The parties agree that the laws of the State of Minnesota shall govern this
Agreement.
	 
	14.  	Acknowledgment by Employee: Employee acknowledges and states that he has thoroughly reviewed
this Agreement in its entirety, fully understands its meaning and effect, and agrees with its
terms. Employee has executed this Agreement voluntarily and without any threat, intimidation,
coercion, force or other type of pressure by Employer or any other person. Employee agrees
that Employer has not made any promise or offered any other agreement, except those expressed
in this document, to induce or persuade her to enter into this Agreement.
	 
	15.  	Termination of All Other Agreements: This Agreement terminates all other agreements between
the Employer and Employee, excluding any non-disclosure or non-compete obligations that may
survive Employee’s employment such as Exhibit A. Employee is not entitled to any other
benefits as a result of his termination other than as provided in this Agreement.




 









 











	 	 	 
	EMPLOYEE:

	 	HEI, INC.
	 
	 	 
	/S/Douglas Nesbit

	 	/S/ Mack Traynor
	Name:

	 	Name:
	Dougls Nesbit

	 	Mack Traynor
	 
	 	 
	Date: January 26, 2005

	 	Date: January 26, 2005
	 
	 	 
	

	 	Title:
	

	 	CEO
	Exhibit A: Agreement