CONFIDENTIAL SEVERANCE AGREEMENT AND RELEASE OF CLAIMS
CONFIDENTIAL
SEVERANCE AGREEMENT
AND
RELEASE OF CLAIMS
This Confidential Severance Agreement
and Release of Claims (the “Agreement”) is made and entered into by and between
Xxxx Xxxxxxxxx (“Employee”) and BioFuel Technologies, Inc. (“Employer”), as well
as any affiliated or related entities, subsidiaries, or divisions, and the
shareholders, directors, officers, employees, and agents thereof (collectively
referred to as “Employer”).
THE PARTIES acknowledge the
following:
WHEREAS, Employee was employed by
Employer until August 31, 2009, when the employment relationship was terminated
by mutual agreement (the “Termination Date”);
and
WHEREAS, Employee desires to receive
severance benefits provided pursuant to this Agreement, and Employer is willing
to provide these benefits to Employee on the condition that Employee enters into
this Agreement.
THEREFORE, in consideration of the
mutual agreements and promises set forth within this Agreement, the receipt and
sufficiency of which are hereby acknowledged, Employee and Employer agree as
follows:
1. Definitions.
Unless
the context plainly requires otherwise, the term “Employee” includes Xxxx
Xxxxxxxxx, his respective agents, investigators, attorneys, spouse, relatives,
heirs, executors, administrators, successors, and assigns. The term
“Employer” includes BioFuel Technologies, Inc., together with its past, present
and future parent and affiliated companies and entities, as well as the past,
present, and future officers, directors, administrators, shareholders,
employees, agents, successors, subsidiaries, parents, assigns, representatives,
attorneys insureds, and insurers thereof.
2. Severance
Benefits.
|
|
x.
|
Xxxxxxxxx
Payment. In consideration of Employee’s agreements and
promises set forth below, Employer shall pay to Employee the sum of ONE
HUNDRED EIGHTY-FIVE THOUSAND AND NO/100THS ($185,000.00) Dollars (less
standard statutory deductions for federal and state taxes and
withholdings) as severance pay (the “Severance
Payment”), which shall be paid in lump sum pursuant to Employer’s
established payroll procedures as set forth in this
Agreement. The Severance Payment will be made within ten (10)
business days following BioFuel’s receipt of capital commitments totaling
at least TWO MILLION FIVE HUNDRED THOUSAND AND NO/100THS ($2,500,000.00)
Dollars, provided Executive has executed and not revoked this Agreement as
set forth herein. The Severance Payment may not be accelerated
or deferred in any regard.
|
Employee’s
Initials_______
|
|
b.
|
Payment
for Equipment. In further consideration of this
Agreement, Employer shall
pay to Employee the sum of FIFTEEN THOUSAND AND NO/100THS ($15,000.00)
Dollars in payment for certain equipment provided to
Employer. This payment shall be made to Employee simultaneously
with the Severance Payment described in Paragraph 2(a) above, provided
Employee has executed and not revoked this Agreement as set forth
herein.
|
|
|
c.
|
Effect of Payments.
Employee agrees that the payments to him by Employer pursuant to
this Paragraph 2 of the Agreement do not constitute compensation for
purposes of calculating the amount of any benefits Employee may be
entitled to under the terms of any pension or other benefit plan of
Employer, or for the purpose of accruing any benefit, receiving any
allocation of any contribution, or having the right to defer any income in
any employee pension or benefit
plan.
|
|
|
d.
|
Issuance of
Shares. In further consideration of this Agreement,
Employer shall issue to Employee 500,000 shares of Employer’s common stock
(or any successor in interest to BioFuel class of common stock), no par
value per share (the “Restricted
Stock”), following the expiration of the revocation period
described herein. Employee’s rights and obligations with
respect to the Restricted Stock shall be subject to and governed
exclusively by the Investment Representation Letter and Lock Up Leak Out
Agreement attached as Exhibits A and
B,
respectively, to this Agreement, and incorporated herein by
reference. Employer (or any successor in interest to Employer)
shall deliver to Employee a certificate evidencing the Restricted Stock
within sixty (60) days following the expiration of the revocation period
described herein.
|
|
3.
|
Legal
Obligations.
|
Employer has no prior legal obligations
to make the payments or issue the Restricted Stock as described in Paragraph 2
of this Agreement, which consideration is expressly conditioned upon the
promises of Employee herein. Except as otherwise provided herein,
Employee shall be solely responsible for any and all federal and state tax
liability or consequences (including, but not limited to, taxes, contributions,
withholdings, fines, penalties, and interest) which could arise as a result of
the payment provided to him pursuant to this Agreement.
|
4.
|
Nonadmission.
|
By entering into this Agreement,
Employer does not admit any wrongdoing or that it has breached any obligation
with respect to Employee’s employment.
Employee’s
Initials_______
2
|
5.
|
Full
Release of Claims.
|
Employee hereby releases, acquits,
satisfies and forever discharges Employer from any and all actions, causes of
action, claims, demands, losses, claims for attorneys’ fees, and all other forms
of civil damages, occurrences, and liabilities of any kind whatsoever, both
known or unknown, arising out of any matter, happening, or thing, from the
beginning of time to the date of this Agreement. This full release of
claims specifically includes, but is not limited to: any and all claims related
to the Employee’s employment with Employer and the termination of Employee’s
employment with Employer; claims of age discrimination pursuant to the Age
Discrimination In Employment Act (“ADEA”), any and all claims for unpaid wages,
compensation, bonuses or related damages; and any and all other claims of any
nature whatsoever, whether known or unknown, and whether based on tort, contract
(express or implied), statute, regulation or ordinance, federal, state or
local.
By entering into this Agreement,
Employee does not waive any rights or claims that might arise as a result of any
conduct that occurs after the date this Agreement is signed by the parties, nor
shall this Agreement be interpreted to provide that Employee has entered into
any covenant or promise that would be invalid under applicable federal or state
law.
|
6.
|
Covenant
not to Xxx.
|
Employee
covenants and agrees that he will not bring, commence, institute, maintain,
prosecute, or voluntarily aid or encourage any action or proceeding against
Employer. Employee further agrees that he will not otherwise
prosecute or xxx Employer affirmatively or by way of cross-complaint, defense or
counterclaim, or in any other manner with respect to the claims herein released
and/or waived. Employee likewise agrees to forfeit any benefit which
may accrue to him as a result of such action against Employer.
The
foregoing shall be construed as a covenant not to xxx. This Agreement
may be introduced as evidence at any legal proceeding as a complete defense to
any claims existing as of the date of this Agreement ever asserted by Employee
against Employer.
|
7.
|
No Prior
Assignment.
|
Employee
further warrants and covenants, recognizing that the truth of this warranty and
covenant is material to the above consideration having passed, that he has not
assigned, transferred or conveyed at any time to any individual or entity any
alleged rights, claims or causes of action against Employer.
|
8.
|
No
Employment Relationship.
|
The relationship of employer-employee
terminated effective as of the date of Employee’s Termination Date and the
relationship created by this Agreement is purely contractual and no
employer-employee relationship is intended or inferred from the performance of
the parties’ obligations under this Agreement.
|
9.
|
Nondisparagement.
|
Employee shall not (except as required
by law) communicate to anyone, whether verbally, in writing, or in any other
manner, any statement that is intended to cause or that reasonably would be
expected to cause a person to whom it is communicated to have a lowered opinion
of Employer, including a lowered opinion of any services provided by
Employer.
Employee’s
Initials_______
3
|
10.
|
Nondisclosure.
|
As a material condition of this
Agreement, without which Employer would not have entered into the Agreement,
Employee hereby stipulates and agrees that he shall not at any time, directly or
indirectly, use or disclose to any person, business, firm, corporation,
partnership or other entity, any Trade Secret of Employer, for any reason or
purpose. Employee further stipulates and agrees that for a period of
one (1) year from the date of this Agreement (the “Restricted Period”), he shall
not, directly or indirectly, use or disclose to any person, business, firm,
corporation, partnership or other entity any Confidential Information belonging
to Employer, for any reason or purpose.
For
purposes of this Agreement, “Trade Secret” shall be defined as set forth in the
Georgia Trade Secrets Act of 1990, as amended from time to time. The
term Confidential Information shall mean any information which Employer uses in
its business and which Employer considers to be confidential or proprietary, but
which does not rise to the level of a Trade Secret, including without
limitation, proprietary information regarding Employer’s customers, customer
lists, costs, prices, pricing structures, methodologies and strategies,
earnings, financial results and financial information, systems, operating
procedures, strategic plans, proprietary computer and systems software,
prospective and executed contracts and other business arrangements, sources of
supply, identity of suppliers and business acquisition strategies.
|
11.
|
Property.
|
Employee shall immediately return all
property of Employer which is in his possession. This includes, but
is not limited to, the computer provided for his personal use, all data,
documents, records, correspondence, reports, memoranda, or other property and
shall include all copies thereof, including electronically stored
information.
|
12.
|
Performance.
|
Employer’s obligation to perform under
this Agreement is conditioned upon Employee’s agreements and promises to
Employer as set forth herein. In the event Employee breaches any such
agreements or promises or causes any such agreements or promises to be breached,
Employer’s obligations to perform under this Agreement shall automatically
terminate and Employer shall have no further obligation to
Employee.
|
13.
|
Successors
and Assigns.
|
This Agreement shall inure to and be
binding upon the parties hereto and to their respective heirs, legal
representatives, successors, and assigns.
Employee’s
Initials_______
4
|
14.
|
Governing
Law and Forum Selection.
|
This Agreement shall be construed in
accordance with the laws of the state of Georgia and any applicable federal
laws. Moreover, any dispute between the parties regarding this
Agreement or Employee’s former employment with Employer shall be decided solely
by a court of competent jurisdiction in Xxxxxx County, Georgia.
|
15.
|
Entire
Agreement; Modification.
|
This
Agreement constitutes the entire agreement between the parties hereto and
supersedes and renders null and void all prior agreements, understandings and
arrangements, oral or written, if any, between the parties hereto with respect
to the subject matter hereof, including, without limitation, the Employment
Contract of October 2, 2008. This Agreement may not be changed orally
but only by an agreement in writing signed by the parties or their respective
heirs, legal representatives, successors, and assigns.
|
16.
|
Validity.
|
The provisions of this Agreement shall
be deemed severable and that the invalidity or unenforceability of any paragraph
of this Agreement, or any portion or provision thereof, shall not affect the
validity or enforceability of the other portions or provisions. Any
such provision deemed to be unenforceable shall be stricken and the remaining
provisions shall be appropriately limited and given effect to the extent they
may be enforceable.
|
17.
|
OWBPA.
|
Employee
acknowledges that it is the mutual intent of the Parties that the full release
contained in this Agreement fully complies with the Older Workers Benefit
Protection Act. Accordingly, this Agreement requires, and Employee
acknowledges and agrees that: (1) the consideration provided to Employee under
this Agreement exceeds the nature and scope of any consideration to which he
would otherwise have been legally entitled to receive absent his execution of
this Agreement; (2) execution of this Agreement and the full release herein,
which specifically includes a waiver of any claims under the Age Discrimination
in Employment Act, is his knowing and voluntary act; (3) Employee is hereby
advised to consult with an attorney prior to executing this Agreement; (4)
Employee has twenty-one (21) calendar days within which to consider this
Agreement and his signature on this Agreement prior to the expiration of this
twenty-one (21) day period (should he opt not to take the full period offered)
constitutes an irrevocable waiver of said period or its remainder; (5) in the
event Employee signs this Agreement, he has another seven (7) calendar days to
revoke it by delivering a written notice of revocation to the individual
addressee identified in the Notice provision below (Paragraph 18), and this
Agreement does not become effective until the expiration of this seven-day
period; (6) Employee has read and fully understands the terms of this Agreement;
and (7) nothing contained in this Agreement purports to release any of his
rights or claims under the Age Discrimination in Employment Act that may arise
from acts occurring after the date of the execution of this
Agreement.
Employee’s
Initials_______
5
|
18.
|
Notice.
|
All
communications or notices required or permitted by this Agreement shall be made
by Employee to Employer in writing and shall be delivered and addressed as
follows:
Xxx
Xxxxxxxxx
BioFuel
Technologies, Inc.
000
Xxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxx 00000
|
19.
|
Arbitration.
|
Any and all disputes arising out of or
in any way related to this Agreement, Employee’s employment with and separation
from employment, or the payments and benefits described herein, shall be settled
by binding arbitration before a single arbitrator in accordance with the
applicable rules of the American Arbitration Association. Employee
shall not be restricted in terms of the remedies available and shall not be
subject to any costs greater than he would otherwise have incurred in state or
federal court in Georgia.
|
PLEASE
READ THIS AGREEMENT CAREFULLY. IT CONTAINS A RELEASE OF ALL
KNOWN AND UNKNOWN CLAIMS.
YOU
AGREE THAT YOU RECEIVED VALUABLE CONSIDERATION IN EXCHANGE FOR ENTERING
INTO THIS AGREEMENT AND THAT THE COMPANY ADVISED YOU IN WRITING TO CONSULT
AN ATTORNEY PRIOR TO SIGNING THIS AGREEMENT. YOU PROMISE THAT
NO REPRESENTATIONS OR INDUCEMENTS HAVE BEEN MADE TO YOU EXCEPT AS SET
FORTH HEREIN, AND THAT YOU HAVE SIGNED THE SAME KNOWINGLY AND
VOLUNTARILY.
|
|
YOU
HAVE BEEN PROVIDED AT LEAST TWENTY-ONE (21) DAYS WITHIN WHICH TO CONSIDER
THIS AGREEMENT AND WAIVE AND RELEASE ALL CLAIMS AND RIGHTS INCLUDING, BUT
NOT LIMITED TO, THOSE ARISING UNDER THE AGE DISCRIMINATION IN EMPLOYMENT
ACT. YOU SHALL HAVE SEVEN (7) DAYS WITHIN WHICH TO REVOKE THIS
AGREEMENT AND THIS AGREEMENT SHALL NOT BECOME EFFECTIVE OR ENFORCEABLE
UNTIL THAT REVOCATION PERIOD HAS EXPIRED. ANY SUCH REVOCATION
MUST BE IN WRITING AND RECEIVED BY
THE COMPANY, IN ACCORDANCE WITH THE NOTICE PROVISIONS SET FORTH IN
PARAGRAPH 18 HEREIN, PRIOR TO THE END OF THE REVOCATION
PERIOD.
|
[Signature
Page Follows]
Employee’s
Initials_______
6
IN
WITNESS WHEREOF, the undersigned have set their hands and seals, or caused their
duly authorized agent to set their hand and seal, on the day and year written
above.
As To
Employee:
|
July 20, 2010
|
/s/ Xxxx Xxxxxxxx
|
||
|
Date
|
Xxxx
Xxxxxxxxx
|
||
|
For
Employer:
|
BIOFUEL
TECHNOLOGIES, INC.
|
||
|
July 20, 2010
|
By:
|
/s/ Xxxxxxx Xxxxxxxxx
|
|
|
Date
|
|||
|
Its:
|
President
|
||
Employee’s
Initials_______
7
