Exhibit 10.3
SEPARATION AGREEMENT
This Separation Agreement
(hereinafter “Agreement”) is made and entered into this
31st day of December, 2007 (the “Effective Date”), by
and between ENERGY WEST, INC. (hereinafter “Company”)
and DAVID CEROTZKE (hereinafter “Employee”).
WHEREAS, Company and Employee have
agreed to terminate Employee’s employment, which termination
shall include the termination of all of Employee’s prior
employment contracts as amended on January 1, 2006
(collectively the “Employment Agreement”).
WHEREAS, this Separation Agreement
has been entered into based upon Employee’s termination of
his employment with the Company for “Good Reason” as
provided for under paragraph 4(e) of his June 23, 2004 Employment
Agreement.
NOW THEREFORE, in consideration of
certain benefits provided herein to Employee, and in consideration
of the other promises and agreements contained herein and other
good and valuable consideration, the sufficiency and receipt of
which are hereby acknowledged, and intending to be legally bound,
the Company and Employee agree as follows:
1. Termination of
Employment . Employee and the Company hereby agree that
Employee’s employment with the Company shall cease effective
January 1, 2008, and that the last day Employee shall report
to work will be December 31, 2007. Upon Employee’s
termination, the Company shall pay to Employee a lump sum amount
within thirty (30) days after Employee’s termination
date for the payments due to Employee as set forth in paragraph
5(a) of his June 23, 2004 Employment Agreement which paragraph
is incorporated herein by reference as if fully rewritten
herein.
2. Severance Allowance .
In exchange for the promises contained in this Agreement and the
release of claims and covenants not to sue as set forth below, the
Company shall provide Employee with a severance package equal to
that set forth in Exhibit “A” attached hereto
and incorporated herein as if fully rewritten. The Company will
also agree to provide Employee and his family with Company health
benefits as set forth in the First Amendment to Employee’s
Employment Agreement, after which time the Employee will have
access to COBRA continuation coverage in accordance with Company
policy and federal law. All payments due under the Exhibit
“A” schedule shall be paid in accordance with the
payment schedule set forth in either Exhibit “A”
or, as applicable, paragraph 5(b) of his June 23, 2004
Employment Agreement which provision is incorporated herein by
reference as if fully rewritten herein.
3. Release and Covenant Not
to Sue . Employee, for himself and his dependents, successors,
assigns, heirs, executors, and administrators, and his legal
representative of every kind, hereby releases, dismisses, remises,
and forever discharges the Company, including its predecessors,
parents, subsidiaries, divisions, related or affiliated companies,
officers, directors, stockholders, members, employees, heirs,
successors, assigns, representatives, agents, and counsel from any
and all arbitrations, claims, including claims for attorney’s
fees, demands, damages, suits, proceedings, actions, and/or causes
of action of any kind and every description, whether known or
unknown, which Employee now has or may have had for, upon, or by
reason of any cause whatsoever, and Employee covenants not to sue
or assert any such arbitrations, claims, demands, damages, suits,
proceedings, actions, and/or causes of action of any kind in every
description, whether known or unknown, against the Company,
including but not limited to:
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A. |
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Any and all claims arising out of or relating to
Employee’s employment by or service with the Company; |
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B. |
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Any and all claims arising out of or relating to his Employment
Agreement except as to those claims and agreements contained herein
under paragraph 2 and the Exhibit “A” . |
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C. |
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Any and all claims of discrimination, including but not limited
to claims of discrimination on the basis of sex, race, age,
national origin, marital status, religion, or handicap, including
specifically, but without limiting the generality of the foregoing,
any claims under the Age Discrimination in Employment Act, as
amended, Title VII of the Civil Rights Act of 1964, as amended, the
Americans with Disabilities Act, and all applicable state of
Montana statutes pertaining to any and all employment matters are
causes of actions that could be brought by the Employee against the
Company; |
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C. |
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Any and all claims of wrongdoing or unjust discharge or breach
of any oral or written contract or promise, express or implied,
defamation, promissory estoppel, and any claim based on any
employment policy or practice, and any other common law claim. |
Employee understands and acknowledges that the Company does not
admit any violation of law, liability, or invasion of any of his
rights and that any such violation, liability or invasion is
expressly denied. The consideration provided under this Agreement
is made for the purpose of settling and distinguishing all claims
and rights that Employee ever had or now may have against the
Company to the extent provided for in this Agreement. Employee
further agrees and acknowledges that no representations, promises,
or inducements have been made by the Company other than as appear
in this Agreement. Employee further agrees and acknowledges that
the Release provided for in this paragraph releases claims to and
including the date of this Agreement; excluded from the Release
paragraph are: (i) Employee’s rights to vested benefits
and benefit continuation/conversion rights under the Company
sponsored employee benefits plans and (ii) Employee’s rights
to enforce this Agreement.
4. Execution of
Agreement . Employee has been advised by the Company to consult
with legal counsel prior to the executing this Agreement and the
release provided for herein. Employee has had an opportunity to
consult with and to be advised by legal counsel of his choice, and
fully understands the terms of this Agreement and enters into this
Agreement freely, voluntarily, and intending to be bound. Employee
acknowledges that he has been given a period of twenty-one (21)
days to review and consider the terms of this Agreement, and the
release contained herein, prior to its execution and that he may
use as much of the twenty-one (21) day period as he desires.
Employee may, within seven (7) days after execution, revoke
this Agreement. Revocation shall be made by delive
