May 7, 2010 Mr. Lee S. Rosen Chairman New Generation Biofuels Holdings, Inc. Re: Separation Agreement Dear Lee:
Exhibit
10.1
May 7,
2010
Xx. Xxx
X. Xxxxx
Chairman
Dear
Xxx:
This
separation agreement (this “Agreement”), if
accepted by you, sets forth the terms of the agreement between you and New
Generation Biofuels Holdings, Inc. (the “Company”) in light of your
resignation as Chairman of the Board of the Company. Capitalized
Terms used but not defined herein shall have the meanings set forth in the
Amended and Restated Employment Agreement, dated July 23, 2009, between the
Company and you (the “Xxxxx Employment
Agreement”).
1. Confirmation of
Resignation. The parties hereby confirm your resignation as
Chairman of the Board and as a Director of the Company effective as of May 7,
2010 (the “Separation
Date”).
2. Severance
Benefits. In exchange for your promises in this Agreement and
your signing the Waiver and Release Agreement attached as Exhibit A (the “Release”) within
twenty-one (21) calendar days of the Separation Date and provided you do not
revoke the Release as described below, the Company will provide the
following:
A. Accrued Salary, Vacation Pay and
Expense Reimbursements. Upon the Release Effective Date, the
Company will pay in a single lump sum your annual salary through the Separation
Date and any vacation pay and business expense reimbursements to the extent
earned by you through the Separation Date but not yet paid.
B. Cash Severance
Payment. Upon the Release Effective Date, the Company will pay
you a single lump sum of $95,000, less standard deductions and withholding as
determined by the Company.
C. Cash/Stock
Election. Upon the Release Effective Date, the Company will
provide you the right to receive an additional $105,000 by making a cash/stock
election subject to the following terms:
(i) If
you make a timely election to receive all or a portion of such amount in cash
(the “Cash
Election”), the Company will issue to you a note, in a form reasonably
proposed by the Company, in the amount of the Cash Election with a maturity date
of three years from the date of issuance, an interest rate equal to the interest
rate of a three-year United States Treasury Note plus 2.0% on the date of
issuance and other customary terms and conditions.
(ii) If
you make a timely election to receive all or a portion of such amount in common
stock (the “Stock
Election”), you will be entitled to receive a number of shares of the
Company’s common stock equal to the amount of the Stock Election divided by the
closing price of the Company’s common stock on the Nasdaq Capital Market on the
Election Date, as defined herein (the “Stock Election
Price”). The Company will issue a stock certificate to you for
the appropriate number of shares as reasonably determined by the Company within
two (2) business days of the Election Date.
(iii) You
may make a Cash Election or a Stock Election by notifying the Company in writing
of your election within one (1) business day of the Release Effective
Date. The “Election Date” shall
be the date you provide such written notice to the Company. In no
event may the combined amounts of the Cash and Stock Elections exceed
$105,000.
D. Stock
Options and Stock Grants.
(i) Upon
the Release Effective Date, the following Time-Based Options and Stock Grants
granted under the Omnibus Incentive Plan pursuant to the Xxxxx Employment
Agreement shall vest immediately: (1) options to purchase 104,353 shares of the
Company’s common stock; and (2) 260,833 shares of the Company’s common
stock;
(ii) Upon
the Release Effective Date, 226,316 shares of the Company’s common stock
previously granted pursuant to three-year restricted stock grants under the
Company’s Management Equity Compensation Plan and Omnibus Incentive Plan shall
vest immediately;
(iii) Upon
receipt of shareholder approval of sufficient available shares under the
Company’s Omnibus Incentive Plan, (1) additional Time-Based Options to purchase
208,707 shares of the Company’s common stock shall vest immediately (the “Conditional Options”)
and (2) the stock grant consisting of the number of shares of the Company’s
common stock equal to 521,677, less the number of shares equal to $105,000
divided by the Stock Election Price (the “Conditional Stock
Grant”) shall be made.
(iv) The
Company shall agree to include the Conditional Options and Conditional Stock
Grant in any proposal submitted to Company shareholders to increase available
shares under the Company’s Omnibus Incentive Plan until such shareholder
approval is obtained; provided that the Company is under no obligation to seek
such approval outside of its annual shareholders meeting.
(v) The
stock grants and the shares underlying the options under this section are not
registered under applicable securities laws and presently can only be sold under
an applicable securities law exemption, including Rule 144.
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E. COBRA. For an
18-month period beginning on the Release Effective Date, the Company shall
reimburse you for the COBRA premiums above your
employee contribution in order to provide medical, dental, vision and life
insurance benefits to you and/or your family reasonably equivalent to those
which were provided at the Release Effective Date; provided, further, that you
agree to elect COBRA coverage to the extent available under the Company’s health
insurance plans.
3. End of
Benefits. From and after the Separation Date, except as
otherwise provided herein, you shall not be eligible and are not eligible to
participate in any of the Company’s benefits plans, including, but not limited
to, any medical insurance, any retirement plan, vacation leave, sick leave, any
disability insurance, and any life insurance, although you shall be entitled to
any benefits earned or accrued as of the Separation Date in accordance with the
terms of the applicable plans.
4. No Additional
Compensation. You acknowledge and agree that you shall not
receive any other compensation or benefits except as expressly set forth in this
Agreement. You further acknowledge and agree that, once the Company
has provided the payments and benefits set forth in this Agreement, you shall
have been provided all compensation and benefits due and owing under this
Agreement and under any employment or other contract you have or may have had
with the Company or from any other source of entitlement.
5. General Release of
Claims. Upon your signing this Agreement, you also shall sign
the Release, as contemplated by the Xxxxx Employment Agreement, which is a
general release of claims by you against the Company and its related
persons. As the Release provides, you have seven (7) days following
your signing the Release to revoke it, and if you elect to revoke it within this
seven-day period, then this Agreement shall be null and void and have no force
or effect. The date on which your seven-day revocation period expires
without your revoking the Release is the “Release Effective
Date”.
6. Survival of Certain Employment
Agreement Obligations. You acknowledge and agree that your
obligations in Article 6 (relating among other things to confidentiality, trade
secrets, inventions, unfair competition and non-disparagement) of the Xxxxx
Employment Agreement survive the end of your employment with the Company and
remain binding on you and enforceable by the Company, according to their
terms. The Company acknowledges and agrees that its obligations in
Article 4 (relating among other things to indemnification) of the Xxxxx
Employment Agreement survive the end of your employment with the Company and
remain binding on the Company and enforceable by you, according to their
terms. For the avoidance of doubt, the indemnification provisions in
Article 4 shall not extend to claims involving personal matters rather than
Company business.
7. Company
Equipment. You shall return any Company-provided equipment,
including but not limited to any Blackberries or other personal digital
assistants, computers or printers (the “Company
Equipment”). Prior to the Release Effective Date, you shall
save any Company information existing on your own personal computers or other
devices to a “zip” drive or other suitable electronic means, transfer such
information to the Company and remove any Company information from such
equipment.
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8. No Admission. You
and the Company agree that nothing contained in this Agreement shall constitute
or be treated as an admission of liability or wrongdoing by either.
9. Entire
Agreement. This Agreement and its exhibits contain the entire
agreement between you and the Company relating to the subject matter of this
Agreement, and this Agreement may not be altered or amended except by an
instrument in writing signed by both you and the Company. You
represent and acknowledge that, in signing this Agreement, you do not rely and
have not relied upon any representation or statement made by the Company or the
Company’s agents, representatives or attorneys with regard to the subject matter
or effect of this Agreement.
10. Assignment. This
Agreement and the rights and obligations of you and the Company may not be
assigned without the prior written consent of the other, although the Company
may assign this Agreement to any entity affiliated with it without your consent
upon written notice to you.
11. Further
Actions. You and the Company agree to take or cause to be
taken such further actions as may be necessary or as may be reasonably requested
in order to fully effectuate the purposes, terms, and conditions of this
Agreement.
12. Choice of Law. This
Agreement shall be governed by, and construed in accordance with, the laws of
the state of Florida (excluding the choice of law rules thereof). The
language of all parts of this Agreement shall in all cases be construed as a
whole, according to its fair meaning, and not strictly for or against either of
you or the Company.
13. Acknowledgments. You
acknowledge and agree that you have read and understand this Agreement and sign
it voluntarily and without coercion, are being advised in this Agreement in
writing to consult with an attorney prior to signing this Agreement, and have
been given more than sufficient time within which to consider and sign this
Agreement.
* * *
Please
indicate your acceptance of this Agreement by signing below and by signing the
attached Release. Please return the original signed documents to
me. I will have the Company Release signed and will send you a fully
signed copy of the Agreement and the exhibits.
Sincerely,
| By: |
/s/
J.
Xxxxxx Xxxxxxxx, Jr.
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J.
XXXXXX XXXXXXXX, JR.
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DIRECTOR
AND CHAIRMAN
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COMPENSATION
COMMITTEE
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| ACCEPTED AND AGREED: | |||||
| /s/ Xxx X. Xxxxx |
5/7/2010
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| Xxx X. Xxxxx | Date | ||||
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Exhibit 10.1
EXHIBIT
A
WAIVER AND RELEASE
AGREEMENT
THIS WAIVER AND RELEASE AGREEMENT (this
“Release”) is entered into as of [______________] (the “Effective
Date”), by Xxx X. Xxxxx (“Executive”) in consideration of severance pay and
benefits (the “Severance
Payment”) provided to Executive by New
Generation Biofuels Holdings, Inc., a Florida corporation (the “Company”), pursuant to the Separation Agreement by
and between the Company and
Executive (the “Separation
Agreement”).
1. Waiver
and Release. Subject to the last sentence of the
first paragraph of this Section 1, 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 the Company and each of its
affiliates, parents, successors, predecessors, and the subsidiaries, directors,
owners, members, shareholders, officers, agents, and employees of the Company and its affiliates,
parents, successors, predecessors, and subsidiaries (collectively, all of the
foregoing 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
Release, concerning his employment or separation from
employment. Subject to the last sentence of the first paragraph of
this Section 1, this Release includes, but is not limited
to, any 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, 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. Notwithstanding any other
provision of this Release to the contrary, this Release does not encompass, and
Executive does not release, waive or discharge, the obligations of the Company
(a) to make the payments and provide the other benefits contemplated by the
Employment Agreement, or (b) under any restricted stock agreement, option
agreement or other agreement pertaining to Executive’s equity ownership, or (c)
under any indemnification or similar agreement with Executive.
Executive understands that by signing
this Release, he is not waiving any claims or administrative charges which
cannot be waived by law. He is waiving, however, any right to
monetary recovery or individual relief should any federal, state or local agency
(including the Equal Employment Opportunity Commission) pursue any claim on his
behalf arising out of or related to his employment with and/or separation from employment with the
Company.
Executive further agrees without any
reservation whatsoever, never to xxx the Employer or become a party to a lawsuit
on the basis of any and all claims of any type lawfully and validly released in
this Release.
2. Acknowledgments. Executive is signing this Release
knowingly and voluntarily. He acknowledges that:
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(a)
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He is hereby advised in writing to
consult an attorney before signing this Release
Agreement;
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(b)
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He has relied solely on his own
judgment and/or that
of his attorney regarding the consideration for and the terms of this
Release and is signing this Release Agreement knowingly and voluntarily of
his own free will;
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(c)
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He is not entitled to the
Severance Payments unless he agrees to and honors the terms of this
Release;
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(d)
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He has been given at least
twenty-one (21)
calendar days to
consider this Release, or he expressly waives his right to have at least
twenty-one
(21) days to consider this
Release;
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(e)
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He may revoke this Release within
seven (7) calendar
days after signing it by submitting a written notice of revocation to the
Employer. He further understands that this Release is not
effective or enforceable until after the seven (7) day period of
revocation has expired without revocation, and that if he or she revokes this
Release within the seven (7) day revocation period, he will not receive
the Severance Payments;
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(f)
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He has read and understands the
Release and further understands that, subject to the limitations contained
herein, it includes a
general release of any and all known and unknown, foreseen or unforeseen
claims presently asserted or otherwise arising through the date of his
signing of this Release that he may have against the Employer;
and
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(g)
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No statements made or conduct
by the Employer has
in any way coerced or unduly influenced him or her to execute this
Release.
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3. No
Admission of Liability. This Release does not constitute an
admission of liability or wrongdoing on the part of the Employer, the Employer
does not admit there has
been any wrongdoing whatsoever against Executive, and the Employer expressly
denies that any wrongdoing has occurred.
4. Entire
Agreement. There are no other agreements of any
nature between the Employer and Executive with respect to the
matters discussed in this
Release Agreement, except as expressly stated herein, and in signing this
Release, Executive is not relying on any agreements or representations, except
those expressly contained in this Release.
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5. Execution. It is not necessary that the Employer sign this Release following
Executive’s full and complete execution of it for
it to become fully effective and enforceable.
6. Severability. If any provision of this Release 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 Release shall
continue in full force and effect.
7. Governing
Law. This Release shall be governed by the
laws of the State of Florida, excluding the choice of law rules
thereof.
8. Headings. Section and subsection headings
contained in this Release are inserted for the convenience of reference
only. Section and subsection headings shall not be deemed to be a
part of this Release 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 | |||||
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Xxx X.
Xxxxx
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