AGREEMENT
Exhibit
10.4
AGREEMENT
AGREEMENT
(this “Agreement”)
dated as of October 15, 2008, by and between Xxxxxxx X’Xxxxxx, a resident of the
State of New Jersey (the “Executive”),
and International Energy Inc., a Nevada corporation (the “Company”).
WITNESSETH
WHEREAS, Executive presently
serves as the President, Chief Executive Officer and as a Director of the
Company;
WHEREAS, Executive and the
Company are parties to an Employment Agreement dated July 29, 2008, (the “Employment
Agreement”) and capitalized terms used in this Agreement, but not
otherwise defined, shall have the respective meanings attributed to such terms
in the Employment Agreement;
WHEREAS, the Executive has
tendered his resignation, effective as of 5:00 pm on October 15, 2008 as
the President, Chief Executive Officer and as a Director of the Company (the
“Executive’s
Resignation”);
WHEREAS, the Executive desires
to terminate the Employment Agreement, subject to the terms hereof;
WHEREAS, the Company has
accepted the Executive’s Resignation
NOW, THEREFORE, in
consideration of the premises and the mutual covenants and promises hereinafter
provided and of the actions taken pursuant thereto, the parties agree as
follows:
1.
Effective
Date. This Agreement shall be effective as of 5:00PM (EST) on October 15,
2008 (the “Effective
Date”).
2. Termination
of Employment Agreement. As of the Effective Date, the Employment
Agreement shall be deemed terminated and shall have no further force or
effect.
3. Resignation as a Director of
the Company and the Subsidiaries.
Effective
as of the Effective Date, the Executive shall be deemed to have resigned from
any other positions which the Executive may have held or hold with the Company
and or any of its subsidiaries and shall have submitted his irrevocable
resignation from such positions.
4. Records and Return of
Property.
4.1 Return of
Tangible Property. The Executive hereby certifies that he has
returned to the Employer all property of the Employer in the Executive’s
possession, including, without limitation, cellular telephones, Blackberry
units, computers, printers, peripherals, software, hardware, and any other such
property.
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4.2 Return of
Confidential Information. The Executive hereby further agrees that,
by no later than October 15, 2008 (the “Certification
Date”) he will certify, in writing, that he has returned to the Company
and he will have returned to the Company or have made arrangements
deemed satisfactory by the Company for return to
the Company of all tangible material embodying Confidential
Information in any form whatsoever, including, without limitation, all paper
copy copies, summaries and excerpts of Confidential Information and all
electronic media or records containing or derived from Confidential
Information.
4.3 Pro Rata
Reimbursement of Signing and Other Advances. Anything hereing to the
contrary notwithstanding, the Executive acknowledges that there is due and owing
the Company, in accordance with the terms and conditions of the Employment
Agreement the amount of $3,365.39 plus an additional amount of $4,115,97, or an
aggregate of $7,481.36 (the “Executive’s
Obligation”). It is understood and agreed that the aforesaid
amount will be paid to the company on October 15, 2008; the Executive may offset
against the Executive Obligation the amount of $922.00 provided that he provides
appropriate receipts for the disbursement thereof.
5. Confidentiality;
Non-Solicitation; Non-compete.
For a
period of twelve months following the Effective Date, the Executive expressly
agrees:
5.1 Agreement
not to use or disclose confidential information. Not to use for the
benefit of himself or anyone else, or disclose to anyone else, any Confidential
Information belonging to the Company or its Subsidiaries, without first seeking
and obtaining the express written approval of the Company. For purposes of this
provision, it is mutually agreed that “Confidential Information” is
defined exclusively to mean all information that is not readily known to the
public in usable form and includes, without limitation, all financial,
operational, strategic, corporate, and product information pertaining to the
Company and its subsidiaries.
5.2 Non-compete. Unless
otherwise agreed to in writing by the Company, the Executive, for a period of 24
months from the Effective Date, the Executive will not directly or indirectly on
his own behalf or on behalf of any other party or entity engage in any work or
other activity or render any assistance to any person that would compete with or
negatively affect the Company’s efforts to realize any specific opportunity in
the area of algal biochemistry and photosynthesis.
6.
Stock and
Options. As of the
Effective Date, all of the options granted to the Executive shall be deemed
terminated and of no further force or effect as of the Effective
Date.
7. Statements
Concerning Executive’s Resignation. The Executive and the
Company shall jointly release a press statement, in the form attached hereto as
Exhibit
A, that provides (a) notice of the termination of the Executive’s
employment with the Company (b) stipulates that the Executive has no
disagreement with the management, internal financial or disclosure controls or
accounting policies of the Company, and (c) covers such other matters as
the parties may mutually agree. Both the Executive and the Company shall
otherwise refrain to the extent possible from publicly discussing the
circumstances surrounding the termination of the Executive’s employment with the
Company and shall, in all instances, refrain from making any statements that
could reasonably be interpreted as disparaging of one another or their
respective affiliates.
8. Employment
References.
Nothing in this Agreement shall prevent either party from stating the fact that
Executive was employed by the Company, the address of his work location, the
dates of his employment, his job titles and job duties, his rate of pay, or that
he resigned from his position as the Chief Executive Officer and President and
as a Director of the Company, and the termination of the Employment Agreement
on the Effective Date.
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9. Non
Confidentiality of Agreement. Parties acknowledge that this Agreement
shall be filed as an exhibit to the Company’s Form 8-K to be filed with the
United States Securities and Exchange Commission.
10. No
Admissions.
Nothing contained in this Agreement or the General Release incorporated herein
shall be considered an admission by the Executive of any wrongdoing
under any Federal, state or local statute, public policy, tort law, contract
law, common law or otherwise.
11. No Third
Party Claims. Each party represents and warrants that no other person or
entity has, or to the best knowledge of such party claims, any interest in any
potential claims, demands, causes of action, obligations, damages or suits
released pursuant to this Agreement; that it or he is the owner of all other
claims, demands, causes of action, obligations, damages or suits so released;
that it or he has full and complete authority to execute this Agreement; and
that it or he has not sold, assigned, transferred, conveyed or otherwise
disposed of any claim, demand, cause of action, obligation or liability subject
to this Agreement and the General Releases contemplated hereby.
12. Releases.
Executive agrees and acknowledges that the consideration received by him for
this Agreement and the General Release attached hereto as Exhibit
B and incorporated herein (the “Executive
Release”), and for the execution hereof and thereof, shall constitute
full payment, satisfaction, discharge, compromise and release of and from all
matters for which he is providing a release herein and in such General
Release.
13. Expenses. Each party shall pay its own
costs incident to the negotiation, preparation, performance, execution, and
enforcement of this Agreement, and all fees and expenses of its or his counsel,
accountants, and other consultants, advisors and representatives for all
activities of such persons undertaken in connection with this
Agreement.
14. No Third
Party Beneficiaries. Except as expressly stated herein, the parties do
not intend to make any person or entity who is not a party to this Agreement a
beneficiary hereof, and this Agreement should not be construed as being made for
the benefit of any person or entity not expressly provided for
herein.
15. Voluntary
Execution; Interpretation. The parties hereto declare
that they have completely read this Agreement fully understands its terms and
contents, and freely, voluntarily and without coercion enters into this
Agreement and are not aware of any matter that would adversely affect the
enforceability of this Agreement by the other party hereto. Each of the parties
hereto have been apprised of their opportunity to have this agreement reviewed
by independent counsel and such other advisors as they may deem appropriate. The
language used in this Agreement will be deemed to be the language chosen by the
parties to express their mutual intent, and no rules of strict construction will
be applied against any party.
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16. Entire
Agreement. This
Agreement constitutes the entire agreement of the parties with respect to the
subject matter hereof, and all prior negotiations and representations are merged
herein or replaced hereby. No amendments or modifications of the terms of this
Agreement shall be valid unless made in writing which specifically states that
it is intended to amend or modify a provision hereof and is signed by all of the
parties hereto.
17.
Severability. Should any provision of this
Agreement be declared or be determined by any court to be unenforceable or
invalid as drafted, it may and shall be reformed or modified by a court of
competent jurisdiction to the form of an enforceable and valid provision that
achieves, to the greatest extent possible, the result intended by the parties in
drafting and agreeing to the unenforceable and invalid provision. Should a court
of competent jurisdiction decline to so reform or modify such a provision or
determine that no enforceable and valid provision can be created to achieve the
intended result, the unenforceability and invalidity of the remaining parts,
terms or provisions of this Agreement shall not be affected thereby and said
unenforceable or invalid part, term, or provision shall be deemed not to be a
part of this Agreement.
20.
Counterparts. This Agreement may be
executed in counterparts, all of which shall be considered one and the same
agreement, and shall become effective on the Effective Date.
22.
Notices. All notices, requests and
other communications under this Agreement will be in writing (including
facsimile or similar writing) and shall be sent by hand delivery, overnight
express carrier or facsimile transmission to the parties at the following
addresses or such other addresses as the parties may later designate in writing
pursuant hereto:
To
the Company:
C/x
Xxxxxxxx & Company, LLP
000 Xxxx
00xx
Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Tel.
(000) 000-0000
Fax (000)
000-0000
Attention:
Xxxxxx Xxxxxxxx, Esq.
And
To
Executive:
Xxxxxxx
X’Xxxxxx
000
Xxxxxxxx Xxxxxx
Xx.
000
Xxxxxx,
Xxx Xxxxxx 00000
24. Governing
Law. This Agreement shall be
construed and enforced in accordance with the internal laws (excluding conflict
of laws rules and principles) as is the Employment Agreement.
IN WITNESS WHEREOF, each of
the parties hereto has executed this Agreement as of the date first written
above.
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The
Executive:
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/s/
Xxxxxxx X’Xxxxxx
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Xxxxxxx
X’Xxxxxx
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The
Company:
International
Energy Corp.
/s/ Xxxxx X.
Xxxxxx
Xx. Xxxxx
X. Xxxxxx, Director and Authorized Signatory
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EXHIBIT
A
STATEMENT
The
Company and Xx. X’Xxxxxx acknowledge that:
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Xx.
X’Xxxxxx resigned as the Company’s President and
Chief Executive officer and as a director of the Company for personal
health reason and in conjunction therewith his Employment
Agreement with the Company was terminated (the “Termination”) as of
5:00PM (EST) on October 15, 2008 (the “Effective
Date”);
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Neither
Xx. X’Xxxxxx’x resignation nor the termination of his employment agreement
was the result of, any disagreement with
the management, internal financial, disclosure controls,
or accounting policies of the
Company;
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The
Company thanks Xx. X’Xxxxxx for his efforts and contributions to the
Company’s continued development during his tenure.
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EXHIBIT
B
GENERAL
RELEASE
I, Xxxxxxx X’Xxxxxx, having
resigned on behalf of myself and my heirs, successors, agents, executors,
administrators, attorneys and assigns, in consideration of the terms of the
Agreement effective as of 5:00PM (EST) on October 15, 2008 by and between
International Energy, Inc. (“International Energy”) and
myself (the “Agreement”)
hereby release and forever discharge International Energy and any and all of its
present, former and future direct and indirect affiliates, subsidiaries,
departments, officers, directors, Executives, representatives, agents,
attorneys, successors and assigns, from any and all claims, rights and causes of
action (whether known or unknown, accrued or unaccrued) which I have or may in
the future have against them based on facts and circumstances existing on or
prior to the date hereof, in law or equity, relating to or arising under:
Federal, Michigan, or other state or local law; any employment contract; any
employment statute or regulation; any employment discrimination law, including
but not limited to Title VII of the Civil Rights Act of 1964, as amended, and
the Age Discrimination in Employment Act of 1967, as amended; the Executive
Retirement Income Security Act of 1974, as amended; any other Federal, state, or
local civil rights, pension or labor law; contract law; tort law; and common
law, including but not limited to (a) any claim arising out of or relating
in any manner to my Employment Agreement with International Energy
dated September 4, 2007; (b) any claim relating to a sales
commission or otherwise arising out International Energy revenues, or
(c) any other claim arising out of or relating to my employment with
International Energy, including any claim for wrongful discharge, constructive
discharge, unintentional or intentional torts, or misrepresentation or
infliction of emotional distress; provided, however, that I do
not hereby release International Energy from any of its obligations under the
Agreement. For purposes of this General Release, International Energy shall be
deemed to include each and every one of its affiliated entities described in the
Agreement.
I further
agree not to xxx or otherwise institute or cause to be instituted or in any way
voluntarily participate in the prosecution of any complaints or charges against
any persons or entities released herein in any Federal, state, or other court,
administrative agency or other forum concerning any claims released
herein.
Except as
required by law or as necessary to fulfill the terms of the Agreement or this
Release, or as necessary in connection with personal business, legal or tax
affairs (in which case disclosure shall be on a confidential basis to the extent
practicable), I agree not to disclose the terms or provisions of this Release to
any person or entity (including Executives of International
Energy).
I
understand and agree that nothing contained in this Release is to be considered
an admission by International Energy of any wrongdoing under any Federal, state,
or local statute, public policy, tort law, contract law, or common
law.
I
acknowledge that I have been advised to consult with an attorney prior to
executing this Release and I have voluntarily elected to freely execute this
Release and waive any applicable review periods.
This
Release is executed in connection with, and is subject to terms of, the
Agreement.
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/s/
Xxxxxxx X’Xxxxxx
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Xxxxxxx
X’Xxxxxx
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Subscribed
and sworn to before me this 15th day of October 2008.
/S/Xxxxxx
Xxxxxxxx
Notary
Qualified in the State and County of New York
My
commission expires: 02/23/2010
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