Exhibit 10.53


 


EMPLOYMENT SEPARATION AGREEMENT


 


THIS EMPLOYMENT
SEPARATION AGREEMENT (this “Agreement”) is made and entered
into as of the 30th day of September, 2005 (the “Effective Date”),
by and between LIQUIDMETAL TECHNOLOGIES,
INC., a Delaware corporation (“Company”), and DAVID G. BINNIE, an individual (“Employee”).


 


RECITALS:


 


A.            Pursuant to the
Employment Agreement, dated October 1, 2001, by and between Company and
Employee (the “Employment Agreement”), Employee is currently employed by
Company as Senior Vice President of Administration and Corporate Secretary.


 


B.            Employee and Company
both desire to terminate Employee’s employment with Company.


 


C.            Employee and Company
have reached agreement on the terms of Employee’s departure, and both parties
view their separation as amicable.


 


NOW, THEREFORE, in
consideration of the premises and covenants contained in this Agreement, the
parties hereto, intending to be legally bound, agree as follows:


 


1.  Recitals.  The above
recitals are true and correct and are made a part hereof.


 


2.  Termination of Employment Agreement. Company and Employee
hereby agree that, for purposes of this Agreement, the date of notification of
termination and the date of termination of the Employment Agreement shall be
the Effective Date.


 


3.  Separation Payments. 
In consideration of Employee’s agreement to the terms of this Agreement,
Company will pay Employee the following amounts (the “Separation Payments”):


 


a.  For the period beginning on October 1, 2005 and
ending October 31, 2006, (the “Severance Period”), Company will continue
to pay to Employee (or Employee’s estate, in the case of his death) a monthly
amount equal to the Employee’s monthly base salary of $12,500 as in effect as
of the date hereof.  Such amount shall
continue to be paid in accordance with the prevailing payroll schedule for
Company executives, subject to applicable tax withholdings and other
withholdings required by law.  In
addition, during the Severance Period, the Company will pay to Employee in
cash, $566.92 per month, an amount representing 100% of the cost of Employee’s
payments for the Humana HMO coverage of the Hillsborough County School Board
Retiree Health Insurance Plan for Employee, and 50% of the cost of dependent
coverage level, through the end of the severance period.


 


b.  This amount will account for
all outstanding commitments that the company has to the employee including any
unpaid vacation pay and other accrued expenses.


 





















 


4.  Survival of Certain Provisions of Employment Agreement.  Notwithstanding anything to the contrary set
forth in this Agreement, Section 6 and Section 7 of the Employment
Agreement shall continue to remain in full force and effect in accordance with
the terms thereof, and Employee shall continue to be bound by the terms thereof
(as well as by any other terms of the Employment Agreement relating to the
enforceability and construction of said Sections 6 and 7).


 


5.  Waiver and Release. 
In consideration of the mutual obligations and duties set forth herein,
Employee and Company agree as follows:


 


a.  Employee and Company hereby knowingly and voluntarily
waive, release and forever discharge the other party from any and all claims,
demands, damages, lawsuits, obligations, promises, and causes of action, both
known and unknown, whether now existing or arising in the future, at law or in
equity, relating to or arising out of Employee’s employment with Company, the
Employment Agreement, compensation by Company, or separation of employment from
Company.  However, nothing contained herein
shall be interpreted to limit Employee’s or Company’s right to enforce this
Agreement through legal process.


 


b.  Employee shall not disclose, either directly or
indirectly, any information whatsoever regarding any of the terms or the
existence of this Agreement to any person or organization, including but not
limited to members of the press and media, present and former employees of
Company, and persons or companies who do business with Company.  The only exceptions to Employee’s promise of
confidentiality herein is that Employee may reveal such terms of this Agreement
(i) as is necessary to comply with a request made by the Internal Revenue
Service; (ii) as otherwise compelled by a court or agency of competent
jurisdiction; (iii) as required by law; (iv) as is necessary to
comply with requests from Employee’s accountants, attorneys, financial
advisors, or other professional advisors for legitimate business purposes or
personal financial planning, (v) to his immediately family members solely
for personal planning purposes (provided that such immediate family members
undertake to maintain the complete confidentiality of this Agreement), or (vi) when
and if this Agreement is included by the Company as a part of a securities law
filing that is actually filed with the Securities and Exchange Commission.


 


c.  Employee agrees to release and forever discharge by this
Agreement the Company from all liabilities, causes of actions, charges,
complaints, suits, claims, obligations, losses, damages, injuries, rights, judgments,
attorneys’ fees, , bonds, bills, penalties, fines, and all other legal
responsibilities of any form whatsoever whether known or unknown, whether
suspected or unsuspected, whether fixed or contingent, whether in law or in
equity, including but not limited to those arising from any acts or omissions
occurring prior to the effective date of this Agreement, including those
arising by reason of any and all matters from the beginning of time to the
present, arising out of his past employment with, compensation during, and
resignation from the Company.  The
Employee will have three months following the termination date to submit for
reimbursement all non-reimbursed cost and expense items that were personally
expended by the Employee in the due course of conducting business for the
Company prior to separation.  Upon
presentation of such costs and expenses to the


 


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Company, Employee will be promptly
reimbursed. Employee specifically releases claims under all applicable state
and federal laws, including but not limited to, Title VII of the Civil Rights
Act of 1964 as amended, the Fair Labor Standards Act, the Rehabilitation Act of
1973, the Family Medical Leave Act, the Employee Retirement Income Security Act,
the Consolidated Omnibus Reconciliation Act of 1986, the Americans with
Disabilities Act, the Florida Civil Rights Act of 1992, the Workers’
Compensation Act, the Equal Pay Act, the Age Discrimination in Employment Act
of 1967 (Title 29, United States Code, Section 621, et seq.) (“ADEA”), as well as all common
law claims, whether arising in tort or contract.


 


d.  In addition to the other provisions in this Agreement,
Employee hereby makes the following acknowledgments for the express purpose of
complying with the Older Workers’ Benefits Protection Act, 29 U.S.C. §626(f):


 


(1)  Employee was over 40 years of age when he was terminated
without cause and when he signed this Agreement.  Employee realizes there are many laws and
regulations prohibiting employment discrimination or otherwise regulating
employment or claims related to employment pursuant to which Employee may have
rights or claims, including the Age Discrimination in Employment Act of 1967,
as amended (the “ADEA”). Employee hereby waives and release any rights or
claims he may have under the ADEA.


 


(2)  Employee was informed in writing that he could consult
with an attorney before signing this Agreement. Employee acknowledges that he
was given the opportunity to consider this Agreement for twenty-one (21) days
before signing it, and, if he signs it, to revoke it for a period of seven (7) days
thereafter. Regardless of when Employee signed this Agreement, Employee
acknowledges that his seven-day period will not be waived. No payments will be
made to Employee under Section 3 above until after the seven-day
revocation period expires.


 


6.  Employment Recommendations; Non-disparagement.


 


a.  Company
hereby agrees that, in the event that a future prospective employer of Employee
seeks information from Company regarding the competence, experience, or
abilities of Employee, Company shall follow its standard human resource
guidelines, policies, and practices with respect to such inquiry.


 


b.  The parties to this Agreement shall each refrain from
making any written or oral statement or taking any action, directly or
indirectly, which the parties know or reasonably should know to be disparaging
or negative concerning Company or Employee, except as required by law.  The parties hereto shall also refrain from
suggesting to anyone that any written or oral statements be made which the
parties know or reasonably should know to be disparaging or negative concerning
Company or Employee, or from urging or influencing any person to make any such
statement. This provision shall include, but not be limited to, the requirement
that the parties refrain from expressing any disparaging or negative opinions
concerning Company or Employee, Employee’s resignation from Company, any of
Company’s officers, directors, or employees, or other matters relative to
Company’s reputation as an employer or any other matters relative to Employee’s
reputation as an employee or executive. 
Company’s and Employee’s promises in this subsection, however,


 


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shall not apply to any judicial or
administrative proceeding in which Employee or Company is a party or in which
Employee or Company has been subpoenaed to testify under oath by a government
agency or by any third party.  It
addition, the promises in this subsection shall also not apply to any
statements made by Employee in good faith in response to a request for
information from an authorized officer, agent, director, attorney, or other
representative of the Company.


 


7.  Resignation From Offices. 
Employee hereby resigns, effective as of September 30, 2005, from
all offices which Employee holds with Company and any subsidiary or affiliate
of Company, unless otherwise requested by the Chief Executive Officer of the
Company and agreed to by Employee in writing.


 


8.  Litigation Cooperation. 
Beginning on the date of this Agreement and continuing at all times
hereafter, Employee and Company shall, without any additional compensation,
provide each other with full cooperation and reasonable assistance in connection
with Company’s defense of any litigation against Company, its officers, its
subsidiaries, or its affiliates arising out of or relating to any circumstance,
fact, event, or omission alleged to occur while Employee was employed by
Company. Employee shall at all times promptly be reimbursed by the Company for
any and all out-of-pocket expenses, including travel expenses, that may be
incurred by Employee in providing such cooperation and assistance, and to the
extent that Employee provides any such assistance or cooperation after the
Severance Period, the Employee also shall be compensated for his time in
providing such cooperation and assistance at a rate equivalent to a per diem
based upon his base salary as in effect under the Employment Agreement as of
the date hereof.  Such cooperation and
assistance shall include, but not be limited to, access for research, being
available for consultation, for deposition and trial testimony, and for
availability and execution of discovery-related documents such as
interrogatories, affidavits, requests for production, requests for admissions,
and responses to each, as deemed necessary. 
Employee and Company further agree to provide their good will and good
faith in providing honest and forthright cooperation in all other aspects of
their defense of any such litigation


 


9.  Miscellaneous.


 


a.  In the event any provision of this Agreement is found to
be unenforceable, void, invalid or unreasonable in scope, such provision shall
be modified to the extent necessary to make it enforceable, and as so modified,
this Agreement shall remain in full force and effect.


 


b.  The paragraph headings in this Agreement are for
convenience only and do not form any part of or affect the interpretation of
this Agreement.


 


c.  This Agreement may be executed in counterparts, each of
which shall be deemed an original of this Agreement and all of which, when
taken together, shall be deemed to constitute one and the same Agreement.


 


d.  The waiver by any party of a breach of any condition of this
Agreement by the other party shall not be construed as a waiver of any
subsequent breach.  No waiver of any right
hereunder shall be effective unless in writing and signed by the party against
whom the waiver is sought to be enforced.


 


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e.  The rights and obligations of the parties under this
Agreement shall inure to the benefit of, and shall be binding upon, their
respective heirs, executors, administrators, successors, assigns, subsidiaries,
affiliates, directors, officers, employees, representatives and agents, as
applicable.


 


f.  This Agreement constitutes the entire agreement of the
parties with respect to the subject matter hereof and supersedes any previous
employment agreements or contracts, whether written or oral, between Company
and Employee.


 


g.  This Agreement shall be construed under, and governed by,
the laws of the State of Florida.


 


h.  Employee and Company acknowledge that each has had the
opportunity to read, study, consider and deliberate upon this Agreement, and to
consult with legal counsel, and both parties fully understand and are in
complete agreement with all of the terms of this Agreement.


 


i.  Nothing set forth herein shall be construed as
terminating or diminishing Employee’s rights under that certain Indemnity
Agreement, dated January 3, 2003, between Company and Employee, and
Employee shall at all times hereafter continue to have the rights set forth in
said Indemnity Agreement.  Additionally,
Employee shall at all times hereafter continue to have the maximum
indemnification rights provided under the Delaware General Corporation Law for
Company officers.


 


IN WITNESS WHEREOF, the
parties have executed this Agreement as of the day and year first above
written.


 


	
  COMPANY:

  	
  EMPLOYEE:

  
	
   

  	
   

  
	
  LIQUIDMETAL TECHNOLOGIES, INC.

  	
  DAVID G. BINNIE

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ John
  Kang

  	
   

  	
  By:

  	
  /s/ David Binnie

  	
   

  
	
   

  	
  John Kang,
  Chairman, Chief

  	
   

  	
  David G. Binnie, individually

  
	
   

  	
  Executive
  Officer, and President

  	
   

  	
   

  



 


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