AGREEMENT
EXHIBIT
10.1
AGREEMENT
AGREEMENT
(this “Agreement”)
dated as of October 15, 2008, by and between Xxxxxxxx Xxxxxxxxx, a resident of
the State of Michigan (the “Executive”),
and Octillion Corp., a Nevada corporation (the “Company”).
WITNESSETH
WHEREAS, Executive presently
serves as the President and Chief Executive Officer of the Company;
WHEREAS, Executive and the
Company are parties to an Employment Agreement dated September 4, 2007,
(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, each of the Company
and the Executive desires to terminate the Employment Agreement, subject to the
terms hereof;
WHEREAS, the Executive
currently serves as a Director and as the President and Chief Executive Officer
of the Company (the “Executive’s
Positions”);
WHEREAS, subject to the
execution of this agreement, the executive has tendered his resignation from the
executive’s positions effective as of 5:00PM (EST) on October 15,
2008.
WHEREAS, each of the Company
and the Executive believes that it is in their respective best interest to
provide for severance payments to be made by the Company to the Executive as a
result of the decision to terminate the Employment Agreement;
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.
Executive and the Company agree that there are no existing defaults by either
party under the Employment Agreement and that, as of the Effective Date, each
party had fully performed all of its obligations to the other party under the
Employment Agreement.
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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 the Executive’s Positions (and 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 Company, or has made arrangements deemed satisfactory by the
Company for return to the Company, all property of the Company in the
Executive’s possession.
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.
5.
Confidentiality;
Non-Solicitation;
Non-compete.
5.1 Agreement
not to use or disclose confidential information. For a period of twelve
(12) months following the Effective Date, the Executive expressly agrees 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 Agreement
not to solicit employees or parties. For a period of
twenty-four (24) months from the Effective Date, the Executive agrees to
not, affirmatively and knowingly, solicit or cause to be solicited any then
current employees of the Company to terminate their employment with the Company.
In addition, for a period of twenty-four (24) months from the Effective Date, if
any then current employee of the Company makes unsolicited inquiries about
employment opportunities with the Executive or a business affiliated with the
Executive, the Executive shall notify the Company in writing of such inquiry and
shall not hire any such employee without the Company’s prior written consent.
Furthermore, for a period of twenty-four (24) months from the Effective Date,
the Executive shall not affirmatively and knowingly solicit or cause to be
solicited any parties to terminate their business dealings with the Company
and/or start or increase their business dealings with any other person or entity
pursuing the development of a transparent photovoltaic or the development of
roadway kinetic energy capture systems.
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5.3
Non-compete. For
a period of twelve (12) months following the Effective Date, the Executive
expressly agrees not to 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 that relates to the
development of a transparent photovoltaic or the development of roadway kinetic
energy capture systems and was identified or pursued by or on behalf of the
Company while Executive was employed by the Company.
6.
Severance
Payment.
6.1
Amount. The
Company will pay Executive severance in the aggregate amount of $50,000 less
applicable withholding (the “Severance
Payment”) within seven (7) calendar days of the Effective
Date.
6.2
Waiver of
Other Payments and Benefits; Acknowledgment.
The Severance Payment set forth in this Agreement is in lieu of any rights or
claims that the Executive may have with respect to severance or other benefits,
or any other form of remuneration from the Company or any of its subsidiaries or
affiliates, other than benefits under any tax-qualified employee pension benefit
plans subject to the Employee Retirement Income Security Act of 1974, and
without limiting the generality of the foregoing, the Executive hereby expressly
waive any right or claim that he may have or could assert to payment for salary,
bonuses, medical, dental or hospitalization benefits, payments under
supplemental retirement plans and incentive plans, life insurance benefits,
expenses and attorneys’ fees, except as otherwise provided in this Agreement or
as mandated under applicable law. Without limiting any other remedies
available to the Company, the Company shall be entitled to withhold any unpaid
portion of payments contemplated by this Agreement if the Executive fails to
comply in any material respect with any of the material terms of this
Agreement
6.3
No Duty
to Mitigate. Executive will not be required to mitigate the amount of any
payment contemplated by this Agreement, nor will any earnings that Executive may
receive from any other source reduce any such payment.
7.
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.
8.
Indemnification and
Insurance.
The
Company acknowledges that its Certificate of Incorporation and By-Laws and the
charters and by-laws of certain of its Subsidiaries include provisions designed
to provide to former officers and directors indemnification in respect of
threatened and commenced actions, suits and proceedings in which an individual
is a party or is threatened to be made a party by reason of the fact that he is
or was an officer or director of the Company or such Subsidiaries. The Company
shall, and shall cause such Subsidiaries to, continue to provide indemnification
to Executive under such provisions to the extent applicable to the Executive and
to the maximum extent permitted by applicable law and the Company’s Certificate
of Incorporation and By-Laws. Regardless of whether or not the Company
maintained or maintains Director’s and Officer’s insurance, Company will defend
and indemnify Executive for any actions taken in any capacity while in the
employment of the Company provided that such actions are subject to any
applicable indemnification provisions in the Company’s Certificate of
Incorporation or By-Laws.
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9.
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.
10.
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.
11.
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.
12.
No
Admissions.
Nothing contained in this Agreement or the General Releases incorporated herein
shall be considered an admission by either party of any wrongdoing under any
Federal, state or local statute, public policy, tort law, contract law, common
law or otherwise.
13.
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.
14.
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
The Company agrees and acknowledges that the consideration received by it for
this Agreement and the Limited Release attached hereto as Exhibit
C
and incorporated herein (the “Company
Release”), and for the execution hereof and thereof, shall constitute
full payment, satisfaction, discharge, compromise and release of and from all
matters for which it is providing a release herein and in such Limited Release.
The Company Release and the Executive Release are collectively herein referred
to as the General Release.
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15.
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.
16. 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.
17. Voluntary
Execution; Interpretation. The parties hereto declare
that they have completely read this Agreement, fully understand its terms and
contents, and freely, voluntarily and without coercion enter 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.
18
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.
19.
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.
21.
Releases
and Effectiveness. This Agreement and the Executive Release which is
incorporated herein by reference have been executed by Executive on the dates
shown opposite his signatures below, and this Agreement and the Executive
Release are effective as of the Effective Date. The Agreement and the Company
Release which is incorporated herein by reference have been executed by the
Company on the dates shown opposite its signatures below, and this Agreement and
the Company Release are effective as of the Effective Date.
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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
And
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To
Executive:
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And
his attorney:
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Xxxxxxxx
X. Xxxxxxxxx
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Hertz
Xxxxxx PC
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0000
Xxxxxxx Xxxx Xxxx
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0000
Xxxxx Xxxxxxxxx Xxxx, Xxxxx 000
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Xxxx
Xxxxx, XX 00000
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Xxxxxxxxxx
Xxxxx, XX 00000-0000
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Attn:
Xxxxx Xxxxx, Esq.
24.
Governing
Law. This Agreement shall be
construed and enforced in accordance with the internal laws (excluding conflict
of laws rules and principles) of the State of New York
25.
Arbitration. Any dispute or
difference arising out of or in connection with this Agreement shall be
determined by the appointment of a single arbitrator to be agreed between the
parties, or failing agreement within fourteen days, after either party has given
to the other a written request to concur in the appointment of an arbitrator, by
an arbitrator to be appointed by the President or a Vice President of the
Chartered Institute of Arbitrators.
[SIGNATURES
APPEAR ON THE NEXT PAGE]
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IN WITNESS WHEREOF, each of
the parties hereto has executed this Agreement as of the date first written
above.
The
Executive:
/s/ Xxxxxxxx
Xxxxxxxxx
Xxxxxxxx
Xxxxxxxxx
The
Company:
By: /s/
Xxxxxxx
Xxxxx
Xxxxxxx
Xxxxx
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EXHIBIT
A
STATEMENT
The
Company and Xx. Xxxxxxxxx acknowledge that:
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·
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Xx. Xxxxxxxxx
resigned as the Company’s President and Chief Executive officer and
Director in order pursue other
interests;
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·
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The
Employment Agreement was mutually terminated (the “Termination”) as of
5:00PM (EST) on October 15, 2008 (the “Effective
Date”);
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·
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Xx. Xxxxxxxxx
resigned his positions as a Director of the Company and as a Director and
officer of each of the Company’s subsidiaries as of the Effective
Date;
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·
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The
Termination of the Employment Agreement was a mutual decision and not the
result of, any disagreement with the management, internal
financial, disclosure controls, or accounting policies of the
Company;
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·
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The
Company thanks Xx. Xxxxxxxxx for his efforts and contributions to the
Company’s continued development during his tenure and wishes him continued
success with his future endeavors.
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EXHIBIT
B
GENERAL
RELEASE
I, Xxxxxxxx Xxxxxxxxx, 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 Octillion Corp.
(“Octillion”) and myself
(the “Agreement”) and
the execution of a Limited Release by Octillion of even date herewith,
effective as of October 15, 2008 hereby release and forever discharge
Octillion 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
Octillion dated September 4, 2007; (b) any claim relating to a
sales commission or otherwise arising out Octillion revenues, or (c) any
other claim arising out of or relating to my employment with Octillion,
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 Octillion from any of its obligations under the Agreement or
from vested obligations under any Octillion benefit plans in which I
participate. For purposes of this General Release, Octillion 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, spousal, 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 Octillion).
I
understand and agree that nothing contained in this Release is to be considered
an admission by Octillion 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.
_____________________________________
Xxxxxxxx
Xxxxxxxxx
Subscribed
and sworn to before me this 15th day of October 2008.
/s/
___________________________________
Notary
My
commission expires:
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EXHIBIT
C
LIMITED
RELEASE
Octillion
Corp. (“Octillion”), on
behalf of Octillion and all of its current, former or future affiliated
entities, subsidiaries, departments, officers, directors, Executives,
representatives, agents, attorneys, successors and assigns, in consideration of
the terms of the Agreement effective as of 5:00PM (EST) on October
15, 2008, by and between Xxxxxxxx Xxxxxxxxx (“Executive”) and Octillion (the
“Agreement”) and the execution of a General Release (“Release”) by Executive, and
subject to the continued enforceability of such Agreement and Release, with
effect as of October 15, 2008 , hereby releases and forever discharges Executive
and his heirs, successors, agents, executors, administrators, attorneys and
assigns, from any and all claims, rights and causes of action, of which
Octillion has actual knowledge as of the date of this Limited Release, that
Octillion has or may in the future have against him, 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 or similar contract, any employment statute or regulation,
contract law, tort law; and common law, including but not limited to any actions
for fraud and breach of contract; provided, however , that
Octillion does not hereby release Executive from (a) any of his obligations
under the Agreement, or (b) any claims of which Octillion does not have
actual knowledge as of the date of this Limited Release.
Octillion
will not xxx or otherwise institute or cause to be instituted or in any way
voluntarily participate in the prosecution of any complaints or charges against
Executive or the other persons 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 Octillion’s business, legal or tax
affairs (in which case disclosure shall be on a confidential basis to the extent
practicable), Octillion agrees not to disclose the terms or provisions of this
Release to any person or entity.
Octillion
understands and agrees that nothing contained in this Release is to be
considered an admission by Executive of any wrongdoing under any Federal, state,
or local statute, public policy, tort law, contract law, or common
law.
Octillion
acknowledges that subject to the foregoing, this Release can only be altered,
revoked or rescinded with the express written permission of
Executive.
This
Release is executed in connection with, and is subject to the terms of, the
Agreement.
By:
_______________________________
Name:
Title:
Its Duly Authorized Representative
Subscribed
and sworn to before me this 15th day of October, 2008.
/s/
________________________________________
Notary
My
commission expires:
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