AGREEMENT AND GENERAL RELEASE
Exhibit
10.33
AGREEMENT AND GENERAL
RELEASE
Global Resource
Corporation, a Nevada corporation ("Global"), and Xxxxx X.
Xxxxx,
his heirs, executors, administrators, successors, and assigns
(collectively referred to throughout this Agreement and General Release as "Employee"), agree
that:
1. Last Day of Employment.
Employee's last day of employment with Global
was April 17, 2009, as of which date Employee retired from
employment.
2. Consideration. In consideration
for signing this Agreement and General Release
and complying with its terms, and so long as Employee complies with the terms of
this Agreement and General Release, including, without limitation, Section 6
hereof, Global agrees:
a. to
continue to pay to Employee salary for a period of six (6) months
and two (2) weeks from the date set forth in Section 1 above (the "Compensation Period") at Employee's current
annual base rate of pay, less lawful deductions, provided
that Global receives within ten (10) calendar days from the date of Employee's
execution of this Agreement and General Release a letter from Employee signed by
him in the form attached hereto as Exhibit "A";
b. to pay to
Employee any bonuses that would have been payable to Employee
pursuant to Section 3 of his employment letter with Global dated September 23,
2008 (the "Employment Letter") based upon sales made by Global solely to
Biofuels, Inc. as if Employee had remained in the employment of Global at the
time of such sales (for the sake of clarification, bonuses will not be paid on
sales made other than to Biofuels, Inc.);
c. if
Employee properly and timely elects to continue medical coverage
under Global's current health care benefits plan in accordance with the
continuation requirements of COBRA, Global shall pay for the cost of the premium
for such coverage for a period of six (6) months and two (2) weeks beginning on
the last day of employment. Thereafter, Employee shall be entitled to elect to
continue such COBRA coverage for the remainder of the COBRA period, at
Employee's own expense, subject to the provisions of the American Recovery and
Reinvestment Act of 2009; and
d. that
Employee shall be entitled to retain options to purchase 200,000
shares of Global Common Stock previously granted to him and which have already
vested and options to purchase an additional 200,000 shares of Global Common
Stock previously granted to him and which were to vest on September 23, 2009 but
which shall now be immediately vested; provided, however, that the grant of all
such options remains subject to the approval of the stockholders in
accordance with the terms of the original grant thereof and such options may not
be exercised prior to such approval being obtained.
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3. No Consideration Absent Execution of this Agreement and
General Release. Employee understands
and agrees that Employee would not receive the monies and/or benefits specified
in Section 2 above, except for Employee's execution of this Agreement and
General Release and the fulfillment of the promises contained
herein.
4. General Release of Claims.
Employee knowingly and voluntarily releases
and forever discharges Global, its parent corporation, affiliates, subsidiaries,
divisions, predecessors, insurers, successors and assigns, and their current and
former employees, attorneys, officers, directors and agents thereof, both
individually and in their business capacities, and their employee benefit plans
and programs and their administrators and fiduciaries (collectively referred to
throughout the remainder of this Agreement and General Release as
"Releasees"), of and from
any and all claims, known and unknown, asserted or unasserted, which the
Employee has or may have against Releasees as of the date of execution of this
Agreement and General Release, including, but not limited to, any alleged
violation of:
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Title
VII of the Civil Rights Act of
1964;
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Sections
1981 through 1988 of Title 42 of the United States
Code;
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The
Employee Retirement Income Security Act of 1974 ("ERISA") (except for any
vested benefits under any tax qualified benefit
plan);
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The
Immigration Reform and Control Act;
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The
Americans with Disabilities Act of
1990;
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The
Age Discrimination in Employment Act of 1967
("ADEA");
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The
Worker Adjustment and Retraining Notification
Act;
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The
Fair Credit Reporting Act;
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The
Family and Medical Leave Act;
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any
other federal, state (including, without limitation, the State of New
Jersey) or local law, rule, regulation, or
ordinance;
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any
public policy, contract, tort, or common law;
or
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any
basis for recovering costs, fees, or other expenses including attorneys'
fees incurred in these
matters.
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5.
Acknowledgments
and
Affirmations.
Employee
affirms that Employee has not filed, caused to be filed, or presently is a party
to any claim against Global, Employee
affirms that Employee has been paid and/or has received all compensation, wages,
bonuses, commissions, and/or benefits to which Employee may be entitled.
Employee affirms that Employee has been granted any leave to which Employee was
entitled under the Family and Medical Leave Act or related state or local leave
or disability accommodation laws and has not been retaliated against for taking
such leave.
Employee
affirms that, except and to the extent specifically remaining in force pursuant
to provisions of Section 2 hereof, all his existing employment arrangements with
the Company, including, without limitation, pursuant to the Employment Letter,
are terminated and that he is not entitled to any further compensation of any
kind thereunder, including, without limitation, salary, stock options and
post-termination compensation. For the sake of clarification, Employee affirms
that options to purchase an aggregate of 600,000 shares of Global Common Stock
previously granted to him that were to vest beginning September 23, 2010 are
forfeited.
Employee
also affirms that he has resigned in all capacities as an officer of the
Company.
Employee
further affirms that Employee has no known workplace injuries or occupational
diseases.
Employee
also affirms that Employee has not divulged any proprietary or confidential
information of Global and will continue to maintain the confidentiality of such
information consistent with Global's policies and Employee's agreements with
Global and/or common law.
Employee
further affirms that Employee has not been retaliated against for reporting any
allegations of wrongdoing by Global or its officers, including any allegations
of corporate fraud. Both Parties acknowledge that this Agreement and General
Release does not limit either party's right, where applicable, to file or
participate in an investigative proceeding of any federal, state or local
governmental agency. To the extent permitted by law, Employee agrees that if
such an administrative claim is made, Employee shall not be entitled to recover
any individual monetary relief or other individual remedies.
Employee
also affirms that all of Global's decisions regarding Employee's pay and
benefits through the date of Employee's execution of this Agreement and General
Release were not discriminatory based on age, disability, race, color, sex,
religion, national origin or any other classification protected by
law.
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6. Confidentiality
and Return of Property; Non-Competition and Non- Solicitation.
Employee
agrees not to disclose any information regarding the existence or substance of
this Agreement and General Release, except to Employee's spouse, tax advisor,
and/or an attorney with whom Employee chooses to consult regarding Employee's
consideration of this Agreement and General Release, or as otherwise permitted
by law.
Employee
affirms that Employee has returned all of Global's property, documents, and/or
any confidential information in Employee's possession or control. Employee also
affirms that Employee is in possession of all of Employee's property that
Employee had at Global's premises and that Global is not in possession of any of
Employee's property.
Employee
acknowledges that during the course of his employment with the Company, he has
become familiar with the Company's trade secrets and other confidential
information and Employee agrees that during the Compensation Period and for a
six (6) month period thereafter (the "Non-Compete Period"),
Employee shall not directly or indirectly own any interest in, manage,
control, participate in, consult, with, render services for, or in any manner
engage in any business involved in the business of the Company conducted or
contemplated to be conducted by the Company during the period of Employee's
employment within any geographical area in which the Company engaged in such
business or planned to engage in during the period of Employee's employment.
Nothing herein shall prohibit Employee from being a passive owner of not more
than 2% of the outstanding stock of any class of a corporation which is publicly
traded, so long as Employee has no active participation in the business of such
corporation.
During
the Non-Compete Period, Employee shall not, directly or indirectly through
another person or entity, (i) induce or attempt to induce any employee of the
Company to leave the employ of the Company, or in any way interfere with the
relationship between the Company and any employee thereof, (ii) hire any person
who was an employee of the Company at any time during the period of Employee's
employment with the Company, or (iii) induce or attempt to induce any client,
customer, supplier or other business relation of the Company to cease doing
business with the Company or in any way interfere with the relationship between
any such client, customer, supplier or business relation and the
Company.
Further,
at no time shall Employee shall make any negative or disparaging statements or
communications regarding the Company to any third party.
If, at
the time of enforcement of this Section 6, a court holds that the restrictions
stated herein are unreasonable under circumstances then existing, the parties
hereto agree that the maximum period, scope or geographical area reasonable
under such circumstances shall be substituted for the stated period, scope or
area. The parties hereto
agree that money damages
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would not
be an adequate remedy for any breach of this Section 6. Therefore, in the event
of a breach or threatened breach of this Agreement, the Company or its
successors or assigns, in addition to other rights and remedies existing in
their favor, shall be entitled to specific performance and/or injunctive or
other equitable relief from a court of competent jurisdiction in order to
enforce, or prevent any violations of, the provisions hereof (without posting a
bond or other security). In addition, in the event of an alleged breach or
violation by Employee of this Section 6, the Non-Compete Period shall be tolled
until such breach or violation has been duly cured. Employee acknowledges that
the restrictions contained in this Section 6 are reasonable and that Employee
has reviewed the provisions of this Section 6 with his legal
counsel.
7.
Governing Law and
Interpretation. This Agreement and General Release
shall be governed and conformed in accordance with the laws of the state in
which Employee worked at the time of Employee's last day of employment without
regard to its conflict of laws provision. In the event of a breach of any
provision of this Agreement and General Release, either party may institute an
action specifically to enforce any term or terms of this Agreement and General
Release and/or to seek any damages for breach. Should any provision of this
Agreement and General Release be declared illegal or unenforceable by any court
of competent jurisdiction and cannot be modified to be enforceable, excluding
the general release language, such provision shall immediately become null and
void, leaving the remainder of this Agreement and General Release in full force
and effect.
8. Non-Admission of Wrongdoing.
The Parties agree that neither this Agreement
and General Release nor the furnishing of the consideration for this Agreement
and General Release shall be deemed or construed at any time for any purpose as
an admission by Releasees of wrongdoing or evidence of any liability or unlawful
conduct of any kind.
9. Amendment. This Agreement and
General Release may not be modified, altered
or changed except in writing and signed by both Parties wherein specific
reference is made to this Agreement and General Release.
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10.
Entire
Agreement. This
Agreement and General Release sets forth the entire
agreement between the Parties hereto, and fully supersedes any prior agreements
or understandings between the Parties. Employee acknowledges that Employee has
not relied on any representations, promises, or agreements of any kind made to
Employee in connection with Employee's decision to accept this Agreement and
General Release, except for those set forth in this Agreement and General
Release.
EMPLOYEE
IS ADVISED THAT EMPLOYEE HAS UP TO TWENTY- ONE (21) CALENDAR DAYS TO CONSIDER
THIS AGREEMENT AND GENERAL RELEASE. EMPLOYEE ALSO IS ADVISED TO CONSULT WITH AN
ATTORNEY PRIOR TO EMPLOYEE'S SIGNING OF THIS AGREEMENT AND GENERAL
RELEASE.
EMPLOYEE
MAY REVOKE THIS AGREEMENT AND GENERAL RELEASE FOR A PERIOD OF SEVEN (7) CALENDAR
DAYS FOLLOWING THE DAY EMPLOYEE SIGNS THIS AGREEMENT AND GENERAL RELEASE. ANY
REVOCATION WITHIN THIS PERIOD MUST BE SUBMITTED, IN WRITING, TO GLOBAL TO THE
ATTENTION OF XXXX XXXXX AND STATE, "I HEREBY REVOKE MY ACCEPTANCE OF OUR
AGREEMENT AND GENERAL RELEASE." THE REVOCATION MUST BE PERSONALLY DELIVERED TO
XXXX XXXXX OR HIS/HER DESIGNEE, OR MAILED TO XXXX XXXXX AND POSTMARKED WITHIN
SEVEN (7) CALENDAR DAYS AFTER EMPLOYEE SIGNS THIS AGREEMENT AND GENERAL
RELEASE.
EMPLOYEE
AGREES THAT ANY MODIFICATIONS, MATERIAL OR OTHERWISE, MADE TO THIS AGREEMENT AND
GENERAL RELEASE DO NOT RESTART OR AFFECT IN ANY MANNER THE ORIGINAL UP TO
TWENTY-ONE (21) CALENDAR DAY CONSIDERATION PERIOD.
EMPLOYEE
FREELY AND KNOWINGLY, AND AFTER DUE CONSIDERATION, ENTERS INTO THIS AGREEMENT
AND GENERAL RELEASE INTENDING TO WAIVE, SETTLE AND RELEASE ALL CLAIMS EMPLOYEE
HAS OR MIGHT HAVE AGAINST RELEASEES.
The
Parties knowingly and voluntarily sign this Agreement and General Release as of
the date(s) set forth below:
| GLOBAL RESOURCE CORPORATION | ||
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By:
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Employee
Name: Xxxxx X.
Xxxxx
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Title:
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Date
4/27, 2009
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Date:
May 9, 2009
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