SEPARATION AGREEMENT
THIS
SEPARATION AGREEMENT (this
“Agreement”) is entered into as of October 19, 2007 (the “Effective Date”), by
and between H2Diesel Holdings, Inc. (the “Company”) and Xxxxxxx Xxxxxxxx (the
“Executive”). Capitalized terms not otherwise defined herein have the meanings
set forth in the Employment Agreement (as defined below).
WHEREAS,
the Executive is currently the Chief Financial Officer (“CFO”) of the Company,
and
WHEREAS,
the
Company and the Executive desire to establish the terms and conditions of
Executive’s resignation as CFO on the terms and conditions contained herein and
certain modifications to the
Executive’s employment agreement with the Company entered into September 1, 2007
(the “Employment Agreement”).
NOW,
THEREFORE,
for and in consideration of the mutual promises and covenants herein contained
and for good and valuable consideration, the sufficiency of which is hereby
acknowledged, the Company and the Executive agree as follows:
1. Resignation
and Waiver of Notice.
The Executive hereby resigns from the Company and all other affiliates of
the
Company effective as of the Effective Date. The Company waives the 90-day
notice
of termination requirement set forth in Section 5(g) of the Employment
Agreement.
2. Executive
Agreement.
In exchange for the waiver as described in Section 1 of this Agreement, the
Executive hereby agrees to the following provisions set forth in Subsections
2.1
through 2.3:
2.1. Compensation
and Benefits.
The Executive hereby unconditionally and irrevocably forfeits any and all
rights
applicable to the period on and after the Effective Date under Section 3
of the
Employment Agreement, including with regard to Base Salary, Equity Compensation,
Benefits, Vacation, Business Expenses, Bonus Plan, or Relocation Expenses.
2.2. Options.
The Executive hereby unconditionally and irrevocably forfeits any and all
rights
to all stock options (including without limitation vested options and any
rights
to future grants of options) granted pursuant to Section 3.2 of the Employment
Agreement.
2.3. Accrued
Amounts.
The Executive hereby unconditionally and irrevocably forfeits any and all
rights
to all “Accrued Amounts” as defined in Section 5(a) of the Employment
Agreement.
3. General
Waiver and Release. The
Executive agrees to execute a General Waiver and Release Agreement on the
Effective Date in exactly the form provided to the Executive by the Company
without alteration or addition (the “General
Waiver and Release Agreement”),
attached hereto as Exhibit
A,
the
terms and conditions of which are specifically incorporated herein by reference.
4. Nondisparagement.
The parties agree that any public announcement regarding the Executive’s
separation shall be in the form of or not inconsistent with statements approved
in writing by an executive officer of the Company.
4.1. Executive
Covenant.
The
Executive understands and agrees that as a condition for the waiver in Section
1, he will not make any false, disparaging or derogatory statements to any
media
outlet, industry group, financial institution or current or former employee,
consultant, client or customer of the Company (or any affiliate of the Company),
or to any other entity or person, regarding the Company or any of its
affiliates, officers, directors, agents, consultants, employees, customers
or
suppliers or about the Company’s (or its affiliate’s) business affairs or
financial condition; provided, however, that the prohibition in this Section
3.1
shall not apply to truthful communications the Executive is required by law
to
make to the Board of Directors of the Company or any governmental
entity.
4.2. Company
Covenant.
The
Company agrees that no Company officer or director (each a “Managing Person”)
shall make, or shall direct or authorize any employee, former employee or
agent
to make, any false, disparaging or derogatory statements to any media outlet,
industry group, financial institution, current or former employee (excluding
Managing Persons), consultant, client or customer of the Company (or any
affiliate of the Company), or to any other entity or person, regarding the
Executive; provided, however, that the prohibition in this Section 3.2 shall
not
apply to truthful communications the Company or a Managing Person is required
by
law to make, or authorize or direct to be made, to any governmental
entity.
5. Miscellaneous.
4.1. Notices.
All
notices or requests under this Agreement shall be in writing and addressed
as
follows:
|
If
to the Company:
00000
Xxxx Xxxxxxx, Xxxxx 000
Xxxxxxx,
Xxxxx 00000
Attention:
Xxxxx X. Xxxxxxxxx
|
with
copy to:
Xxxxx
& Xxxxxxx LLP
000
Xxxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx,
XX 00000
Attention:
Xxxxxx Xxxxxxx, Esq.
|
|
If
to the Executive:
Xxxxxxx
Xxxxxxxx
0000
Xxxxxx Xxxx
Xxxxxx,
Xxxxx 00000
|
with
copy to:
|
or
to such other address as may be designated by either party in a notice to
the
other. Each notice, demand, request or other communication that shall be
given
or made in the manner described above shall be deemed sufficiently given
or made
for all purposes three days after it is deposited in the U.S. mail, postage
prepaid, or at such time as it is delivered to the addressee (with the return
receipt, the delivery receipt, the answer back or the affidavit of messenger
being deemed conclusive evidence of such delivery) or at such time as delivery
is refused by the addressee upon presentation.
4.2. Representations.
The Executive agrees to execute any proper oath or verify any proper document
required to carry out the terms of this Agreement and the General Waiver
and
Release Agreement. The Executive represents that performance of all the terms
of
this Agreement will not breach any similar agreement. Executive has not entered
into, and Executive agrees not to enter into, any oral or written agreement
in
conflict herewith.
4.3. Severability.
The invalidity or unenforceability of any one or more provisions of this
Agreement shall not affect the validity or enforceability of the other
provisions of this Agreement, which shall remain in full force and
effect.
4.4. Binding
Effect.
This Agreement shall be binding upon the parties hereto and shall inure to
the
benefit of the Executive and Company (including, the Company’s successors and
assigns). The rights and obligations of the Executive under this Agreement
shall
not be assignable or delegable by the Executive, except that in the event
of the
Executive’s death, the Executive’s estate shall have the right to receive any
amount owing and unpaid to the Executive hereunder.
4.5. Amendment;
Waiver.
This Agreement shall not be amended, altered or modified except by an instrument
in writing duly executed by the parties hereto. Neither the waiver by either
of
the parties hereto of a breach of or a default under any of the provisions
of
this Agreement, nor the failure of either of the parties, on one or more
occasions, to enforce any of the provisions of this Agreement or to exercise
any
right or privilege hereunder, shall thereafter be construed as a waiver of
any
subsequent breach or default of a similar nature, or as a waiver of any such
provisions, rights or privileges hereunder.
4.6. Headings.
Section and subsection headings contained in this Agreement are inserted
for
convenience of reference only, shall not be deemed to be a part of this
Agreement for any purpose, and shall not in any way define or affect the
meaning, construction or scope of any of the provisions hereof.
4.7. Governing
Law.
This Agreement, the rights and obligations of the parties hereto, and any
claims
or disputes relating thereto, shall be governed by and construed in accordance
with the laws of the State of Florida (but not including the choice of law
rules
thereof).
4.8. Entire
Agreement.
This Agreement and the General Waiver and Release Agreement constitute the
entire agreement between the parties respecting the Employment Agreement,
there
being no representations, warranties or commitments except as set forth
herein.
4.9. Counterparts.
This Agreement may be executed in two or more counterparts, each of which
shall
be an original and all of which shall be deemed to constitute one and the
same
instrument.
4.10. No
Right to Continued Employment. Nothing
in this Agreement shall be deemed to give the Executive the right to be retained
in the employ of the Company, or to interfere with the right of the Company
to
discharge the Executive at any time and for any reason.
4.11. Fees
and Costs.
In any action relating to or arising from this Agreement, or involving its
application, the party substantially prevailing shall recover from the other
party the expenses incurred by the prevailing party in connection with the
action, including court costs and reasonable attorneys’ fees.
IN
WITNESS WHEREOF,
and intending to be legally bound, the parties have duly executed this Agreement
as of the day and year first herein above written.
| H2DIESEL HOLDINGS, INC | ||
| /s/ Xxxxx X. Xxxxxxxxx | ||
|
By: Xxxxx X. Xxxxxxxxx |
||
| Title: President and Chief Executive Officer | ||
| EXECUTIVE: | ||
| /s/ Xxxxxxx Xxxxxxxx | ||
|
Xxxxxxx Xxxxxxxx |
||
EXHIBIT
A
GENERAL
WAIVER AND RELEASE AGREEMENT
THIS
GENERAL WAIVER AND RELEASE AGREEMENT is entered into as of October 19, 2007
(the
“Effective Date”), by Xxxxxxx Xxxxxxxx (the “Executive”) in consideration of the
waiver to be provided to the Executive by H2Diesel Holdings, Inc. (the
“Company”) pursuant to the Separation Agreement by and between the Company and
the Executive, dated as of October 19, 2007 (the “Agreement”).
1. Waiver
and Release.
1.1 By
the Executive.
The
Executive, on his own behalf and on behalf of his heirs, executors,
administrators, attorneys and assigns, hereby unconditionally and irrevocably
releases, waives and forever discharges (a)
the Company and each of its affiliates, parents and subsidiaries, (b) the
successors and predecessors of the Company and each of its affiliates, parents
and subsidiaries, and (c) the directors, owners, members, shareholders,
officers, agents, and employees of the Company and each of its affiliates,
parents, subsidiaries, successors and predecessors (collectively, all of
the
foregoing described in (a), (b) and (c) are referred to as the
“Employer”)
from any
and all causes of action, claims and damages, including attorneys’ fees, whether
known or unknown, foreseen or unforeseen, presently asserted or otherwise
arising through the date of his signing of this Agreement, concerning his
employment or separation from employment, except for claims arising under
this
Agreement. This release includes, but is not limited to, any claim or
entitlement to salary, bonuses, any other payments, benefits or damages arising
under any federal law (including, but not limited to, Title VII of the Civil
Rights Act of 1964, the Age Discrimination in Employment Act, the Employee
Retirement Income Security Act of 1974, the Americans with Disabilities Act,
Executive Order 11246, the Family and Medical Leave Act, and the Worker
Adjustment and Retraining Notification Act, each as amended); any claim arising
under any state or local laws, ordinances or regulations (including, but
not
limited to, workers’ compensation retaliation) or any state or local laws,
ordinances or regulations requiring that advance notice be given of certain
workforce reductions); and any claim arising under any common law principle
or
public policy, including, but not limited to, all suits in tort or contract,
such as wrongful termination, defamation, emotional distress, invasion of
privacy or loss of consortium.
2.1 By
the Employer.
The
Employer hereby unconditionally and irrevocably releases, waives and forever
discharges the Executive from any and all causes of action, claims and damages,
including attorneys’ fees, whether known or unknown, foreseen or unforeseen,
presently asserted or otherwise arising through the date of his signing of
this
Agreement, concerning his employment or separation from employment, except
for
claims arising under this Agreement.
2. Acknowledgements.
In
accordance with the Older Workers Benefit Protection Act of 1990, the Executive
represents and acknowledges that:
(a) This
Agreement is written in a manner he understands;
(b) By
execution of this Agreement, he does not waive rights or claims under the
ADEA
that arise after the date of its execution;
(c) He
has had the opportunity to consult an attorney prior to the execution of
this
Agreement;
(d) He
waives all rights under the ADEA in return for the consideration provided
for in
this Agreement, which is in excess of anything of value to which he is already
entitled;
(e) He
has been given a reasonable time to consider whether to sign this Agreement;
and
(f) He
understands that with respect to the waiver of claims under the ADEA only,
he
has seven (7) days after signing this Agreement to revoke this waiver, after
which time the waiver becomes binding and enforceable. The Executive further
agrees and understands that if he chooses to exercise his right of revocation
under this Section, he must notify
the
Company
of his intent to do so in a signed writing delivered to the Company before
the
end of this seven (7) day period.
3. Entire
Agreement.
There
are no other agreements of any nature between the Executive and the Company
with
respect to the matters discussed in this General Waiver and Release Agreement,
and that in signing this General Waiver and Release Agreement, he is not
relying
on any agreements or representations, except those expressly contained in
this
General Waiver and Release Agreement.
4. Execution.
It is
not necessary that the Company sign this General Waiver and Release Agreement
following the Executive's full and complete execution of it for it to become
fully effective and enforceable.
5. Severability.
If any
provision of this General Waiver and Release Agreement is found, held or
deemed
by a court of competent jurisdiction to be void, unlawful or unenforceable
under
any applicable statute or controlling law, the remainder of this General
Waiver
and Release Agreement shall continue in full force and effect.
6. Governing
Law.
This
General Waiver and Release Agreement shall be governed by the laws of the
State
of Florida, except for the provisions of Florida law that would refer
jurisdiction to another state.
7. Headings.
Section
and subsection headings contained in this General Waiver and Release Agreement
are inserted for the convenience of reference only. Section and subsection
headings shall not be deemed to be a part of this General Waiver and Release
Agreement for any purpose, and they shall not in any way define or affect
the
meaning, construction or scope of any of the provisions hereof.
IN
WITNESS WHEREOF, the undersigned has duly executed this Agreement as of the
day
and year first herein above written.
| EXECUTIVE: | ||
| /s/ Xxxxxxx Xxxxxxxx | ||
|
Xxxxxxx Xxxxxxxx |
||
| H2DIESEL HOLDINGS, INC | ||
| /s/ Xxxxx X. Xxxxxxxxx | ||
|
By: Xxxxx X. Xxxxxxxxx |
||
| Title: President and Chief Executive Officer | ||
