EMPLOYMENT AGREEMENT
Exhibit 10.1
This Employment Agreement (the “Agreement”), made and entered into this 1st day of
October, 2005, by and between O2Diesel Corporation, a Delaware corporation (the “Company”), and
Xxxxx X. Xxxxxxx (the “Executive”).
WITNESSETH
WHEREAS, the Company desires to hire the Executive and the Executive desires to become
employed by the Company; and
WHEREAS, the Company and the Executive have determined that it is in their respective best
interest to enter into this Agreement on the terms and conditions as set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual covenants and promises
contained herein, and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Employment. The Company hereby agrees to employ the Executive, and the Executive
hereby agrees to serve the Company, upon the terms and conditions set forth herein.
2. Term. The employment of the Executive by the Company pursuant to this Agreement as
provided in Section 1 will commence on October 1, 2005 (the “Effective Date”), and continue until
the Executive’s employment is terminated as provided in Section 6 (the “Term”).
3. Position and Duties. The Executive shall serve as the Chief Financial Officer
(“CFO”), and shall have such responsibilities, duties and authority as are generally associated
with such office and as may from time to time be assigned to the Executive by the Company’s Board
of Directors (the “Board”) and the Company’s Chief Executive Officer that are consistent with such
responsibilities, duties and authority, including, but not limited to, responsibility for the
overall financial health and day-to-day financial operations of the Company on a worldwide basis.
The Executive shall perform his duties diligently and faithfully and shall devote substantially all
his working time and efforts to the business and affairs of the Company and its subsidiaries and
affiliates. The Executive shall, at all times during the Term, report directly to the Chief
Executive Officer. Notwithstanding anything in this Section 3 to the contrary, the Executive shall
not be required to perform any duties or responsibilities that would result in a violation of, or
noncompliance with, any law, regulation, regulatory pronouncement or any other regulatory
requirement applicable to the Company and the conduct of the Company’s business or to the Executive
in his capacity as CFO of the Company.
4. Compensation and Related Matters.
4.1 Base Salary. In consideration of the services rendered to the Company hereunder
by the Executive and the Executive’s covenants hereunder, the Company shall, during the Term,
pay to the Executive an annual base salary at a rate of $177,500 (the “Base Salary”), less
statutory deductions and withholdings, payable in accordance with the Company’s normal payroll
practices. At least annually, the Company will review the Base Salary for competitiveness, the
stage of development of the Company and appropriateness in the industry.
4.2 Annual Bonus. For each calendar year during the Term, the Executive shall be
eligible to receive a cash bonus of 50% of the Base Salary (the “Bonus”). Such Bonus shall be
payable at the sole discretion of the Board.
4.3 Stock Options. The Company shall grant to Executive an option to purchase 450,000
shares of the Company’s common stock (the “Options”). The Options shall vest over 3 years in
accordance with the following vesting schedule: (i) thirty four percent (34%) after one year of
service, and (ii) the remaining sixty six percent (66%) every six months thereafter in equal
increments of sixteen and a half percent (16.5%). The term of the Options shall be ten years from
the Effective Date. The Options shall be issued pursuant to the Company’s 2004 Stock Incentive
Plan and will be evidenced by a Stock Option Grant Agreement, as modified to reflect the terms of
this Agreement. The strike price for the Options shall be $1.50, or as otherwise revised by the
Board. Irrespective of the date of grant, the vesting commencement date for any Options issued in
accordance with this Section 4.3 will be the Effective Date. The Options will be granted, to the
maximum amount of shares currently permitted by law, in the form of incentive stock options and the
remainder in non-qualified options.
Notwithstanding the foregoing, all Options shall vest 100% immediately upon a Change in
Control as defined below. For purposes of this Section, a “Change in Control” shall be deemed to
occur in the event of a change in ownership or control of the Company effected through any of the
following transactions: (i) the acquisition, directly or indirectly, by any person or related group
of persons (other than the Company or a person that immediately before the Change of Control
directly or indirectly controls, or is controlled by, or is under common control with, the Company)
of beneficial ownership (within the meaning of Rule 13d-3 of the Securities Exchange Act of 1934,
as amended) of outstanding securities possessing more than fifty percent (50%) of the total
combined voting power of the Company’s outstanding securities; (ii) the sale, transfer or other
disposition of all or substantially all of the Company’s assets; or (iii) the consummation of a
merger or consolidation of the Company with or into another entity or any other corporate
reorganization, if more than fifty percent (50%) of the combined voting power of the continuing or
surviving entity’s securities outstanding immediately after such merger, consolidation or other
reorganization is owned by persons who were not stockholders of the Company immediately prior to
such merger, consolidation or other reorganization.
4.4 Expenses. The Executive shall be entitled to receive prompt reimbursement for all
reasonable and customary expenses incurred by the Executive in performing services hereunder,
provided that such expenses are incurred and accounted for in accordance with the policies and
procedures established by the Company.
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4.5 Benefits.
(a) The company shall directly pay the insurance carrier for the premium costs of any medical
and dental plans under which Executive is covered during the Term. As
soon as practicable after the Effective Date, the Company agrees to either establish a Company
sponsored dental plan, which the Executive shall be able to participate in, or a provide reasonable
alternative.
(b) The Executive shall be entitled to a car allowance, not to exceed $1,000 per month during
the Term.
(c) The Executive shall be entitled to receive reimbursement for Executive’s certified public
accountant license fees and related continuing education classes not to exceed $2,500 per year
during the Term.
(d) The Executive shall be eligible to participate in any insurance coverage, including
health, dental, life and disability, and 401(k)/profit sharing or pension plans that cover or are
established for similarly situated full-time employees of the Company. The Executive’s
participation in the foregoing benefits will be subject to the terms of the applicable plan
documents and the Company’s generally applied policies, and the Company in its sole discretion may
from time to time adopt, modify or interpret such plans or policies.
(e) The executive shall be entitled to three weeks vacation each year.
5. D&O Insurance. As an officer of the Company, the Executive will be covered under
all of the Company’s Director’s and Officer’s liability insurance policies, which are in place and
updated over time. The Company shall indemnify Executive to the full extent permitted under
Delaware law for claims relating to his service as an officer of the Company.
6. Termination. The Executive’s employment hereunder may be terminated under the
following circumstances:
6.1 Death or Disability. In the event of the Executive’s death or Disability (as
defined below) during the Term of this Agreement, the Executive’s employment hereunder shall
immediately and automatically terminate, and the Company shall have no further obligation or duty
to the Executive or his estate or beneficiaries other than for the Base Salary earned under this
Agreement to the date of termination, reimbursement of corporate expenses to which Executive would
otherwise be entitled, and any payments or benefits due under Company policies or benefit plans
which shall be paid within a reasonable time following death or Disability. For purposes of this
Agreement, “Disability” shall mean the physical or mental infirmity of Executive (including
Executive’s addiction to, or habitual abuse of, narcotics or controlled dangerous substances as
shall be substantiated medically at the industry standard for Executive at the time) which
infirmity causes him to be substantially unable to perform his duties hereunder for any period of
one hundred eighty (180) consecutive days; provided, however, that notwithstanding anything to the
contrary herein and despite any termination of Executive’s employment under this Section 6,
Executive or his estate shall be entitled in the event of a termination on account of death or
Disability: (i) to retain his disability benefits, which amounts shall not be offset by any
disability benefits received by Executive from any other source, (ii) to receive his Base Salary
until such time as he has commenced receiving disability payments under the Company’s policies,
(iii) to receive a prorated portion of the Bonus to which Executive would otherwise have been
entitled for the calendar year through the date of termination (as determined
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by the Board), and
(iv) accrued but unused vacation. Executive or his estate shall have a period of one (1) year
following the termination of his employment pursuant to this Section 6.1 to exercise any vested
Options. After 180 days, the Board may continue to pay Executive his Base Salary at its sole
discretion.
6.2 Cause, Without Cause Termination by the Executive. Notwithstanding the provisions
of Section 2 of this Agreement, the Executive’s employment hereunder may terminate under the
following circumstances:
(a) Termination by the Company for Cause. The Board may terminate this Agreement for
Cause (as defined below) at any time, upon written notice to the Executive setting forth in
reasonable detail the nature of such Cause. For purposes of this Agreement, Cause is defined as
(i) the Executive’s material breach of Sections 7, 8, 9, 10 or 12 of this Agreement; (ii) the
Executive’s commission of any felony or any crime involving moral turpitude; or (iii) gross neglect
or willful misconduct by the Executive in connection with the performance of his material duties
hereunder, or his refusal to perform such material duties reasonably requested in the ordinary
course; provided, however, that the Company shall give Executive thirty (30) days’ written notice
and opportunity to cure prior to any termination for Cause based on the grounds specified in (i)
and (iii) above. Upon the termination for Cause of Executive’s employment, the Company shall have
no further obligation or liability to the Executive other than for Base Salary earned under this
Agreement prior to the date of termination, reimbursement for corporate expenses for which
Executive would otherwise be entitled, and any accrued but unused vacation. Executive’s vested but
unexercised Options shall expire immediately upon his termination for Cause pursuant to this
Section 6.2(a).
(b) Termination by the Company Without Cause. The Executive’s employment hereunder
may be terminated without Cause by the Company upon written notice to the Executive, provided,
however, that if the Company terminates the Executive’s employment without Cause, or the Executive
terminates his employment for Good Reason (as defined below) the Company shall (i) continue to pay
the Executive the Base Salary and shall reimburse medical and dental premiums, under the same
conditions as exist at the time of termination, for a severance period of twelve months, (ii) pay
to the Executive a prorated portion of the Bonus to which Executive would otherwise have been
entitled based on performance through the calendar quarter in which the termination has occurred,
(iii) reimburse Executive for corporate expenses for which Executive would otherwise be entitled,
(iv) cause any unvested Options granted to the Executive to immediately vest and (v) pay Executive
for any accrued but unused vacation. The Company’s obligations under this Section 6.2(b) are not
subject to any right of setoff and impose no duty to mitigate on Executive. As a condition of
receiving severance benefits pursuant to this Agreement, the Executive shall execute and deliver to
the Company prior to his receipt of such benefits a general release in substantially the form set
forth in Annex A hereto. The obligations of the Company under this Section 6.2(b) are
subject to Executive’s compliance with Sections 7, 8, 9 and 10 hereof.
(c) Termination by the Executive. The Executive may terminate his employment
hereunder for any reason upon one (1) month’s written notice to the Company (the “Notice Period”).
In the event Executive provides notice of termination pursuant to this Section 6.2(c), the Company
may elect to terminate Executive at any time during the Notice Period
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without such termination being deemed a termination by the Company under this Agreement;
provided that the Company shall nevertheless pay the Executive for any remaining portion of the
Notice Period an amount equal to the Base Salary and benefits at the rate of compensation the
Executive was receiving immediately before the Notice Period. The payments in the preceding
sentence shall be in addition to any other payments Executive is entitled to receive under this
Agreement as a result of the termination by Executive. The Executive may also terminate his
employment hereunder for “Good Reason,” within ninety (90) days after the occurrence of any of the
following events (i) a material breach of this Agreement by the Company; (ii) a material change in
the Executive’s duties or responsibilities inconsistent with his position as CFO, including any
reduction in Base Salary or Bonus opportunity; (iii) a change in the Executive’s reporting
relationship so that he no longer reports directly to the Chief Executive Officer; or (iv) a
relocation of the Executive’s worksite to a location fifty (50) miles or more from its current
location. The Executive shall give the Company thirty (30) days’ written notice and opportunity to
cure prior to any termination for Good Reason based on the grounds specified in (i) through (iii)
above.
7. Confidentiality, Disclosure of Information.
(a) The Executive recognizes and acknowledges that the Executive has had and will have access
to Confidential Information (as defined below) relating to the business or interests of the Company
or of persons with whom the Company may have business relationships. Except as permitted herein,
the Executive will not during the Term, or at any time thereafter, use, disclose or permit to be
known by any other person or entity, any Confidential Information of the Company (except as
required by applicable law or as Executive deems necessary in connection with the performance of
the Executive’s duties and responsibilities hereunder). The term “Confidential Information” means
information relating to the Company’s business affairs, proprietary technology, trade secrets,
patented processes, research and development data, know-how, market studies and forecasts,
competitive analyses, pricing policies, employee lists, employment agreements (other than this
Agreement), personnel policies, the substance of agreements with customers, suppliers and others,
marketing arrangements, customer lists, commercial arrangements, or any other information relating
to the Company’s business that is not generally known to the public or to actual or potential
competitors of the Company (other than through a breach of this Agreement). This obligation shall
continue until such Confidential Information becomes publicly available, other than pursuant to a
breach of this Section 7 by the Executive, regardless of whether the Executive continues to be
employed by the Company.
(b) It is further agreed and understood by and between the parties to this Agreement that all
“Company Materials,” which include, but are not limited to, computers, computer software, computer
disks, tapes, printouts, source, HTML and other code, flowcharts, schematics, designs, graphics,
drawings, photographs, charts, graphs, notebooks, customer lists, sound recordings, other tangible
or intangible manifestation of content, and all other documents whether printed, typewritten,
handwritten, electronic, or stored on computer disks, tapes, hard drives, or any other tangible
medium, as well as samples, prototypes, models, products and the like, shall be the exclusive
property of the Company and, upon termination of Executive’s employment with the Company, and/or
upon the request of the Company, all Company
Materials, including copies thereof, as well as all other Company property then in the
Executive’s possession or control, shall be returned to and left with the Company.
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8. Inventions Discovered by Executive. The Executive shall promptly disclose to the
Company any invention, improvement, discovery, process, formula, or method or other intellectual
property, whether or not patentable or copyrightable (collectively, “Inventions”), conceived or
first reduced to practice by the Executive, either alone or jointly with others, while performing
services hereunder (or, if based on any Confidential Information, within fifteen (15) months after
the Term), (a) which pertain to any line of business activity of the Company, whether then
conducted or then being actively planned by the Company, with which the Executive was or is
involved, (b) which is developed using time, material or facilities of the Company, whether or not
during working hours or on the Company premises, or (c) which directly relates to any of the
Executive’s work during the Term, whether or not during normal working hours. The Executive hereby
assigns to the Company all of the Executive’s right, title and interest in and to any such
Inventions. During the Term and for fifteen (15) months thereafter, the Executive shall execute
any documents necessary to perfect the assignment of such Inventions to the Company and to enable
the Company to apply for, obtain and enforce patents, trademarks and copyrights in any and all
countries on such Inventions, including, without limitation, the execution of any instruments and
the giving of evidence and testimony, without further compensation beyond the Executive’s agreed
compensation during the Term of the Executive’s employment; provided, however, that to the extent
Executive is asked to provide these services after the Term, he will be entitled to reasonable
compensation. Without limiting the foregoing, the Executive further acknowledges that all original
works of authorship by the Executive, whether created alone or jointly with others, related to the
Executive’s employment with the Company and which are protectable by copyright, are “works made for
hire” within the meaning of the United States Copyright Act, 17 U.S.C. § 101, as amended, and the
copyright of which shall be owned solely, completely and exclusively by the Company. If any
Invention is considered to be work not included in the categories of work covered by the United
States Copyright Act, 17 U.S.C. § 101, as amended, such work is hereby assigned or transferred
completely and exclusively to the Company. The Executive hereby irrevocably designates counsel to
the Company as the Executive’s agent and attorney-in-fact to do all lawful acts necessary to apply
for and obtain patents and copyrights and to enforce the Company’s rights under this Section. This
Section 8 shall survive the termination of this Agreement. Any assignment of a copyright hereunder
includes all rights of paternity, integrity, disclosure and withdrawal and any other rights that
may be known as or referred to as “moral rights” (collectively “Moral Rights”). To the extent such
Moral Rights cannot be assigned under applicable law and to the extent the following is allowed by
the laws in the various countries where Moral Rights exist, the Executive hereby waives such Moral
Rights and consents to any action of the Company that would violate such Moral Rights in the
absence of such consent. The Executive agrees to confirm any such waivers and consents from time
to time as requested by the Company.
9. Non-Competition and Non-Solicitation. The Executive acknowledges that the Company
has invested substantial time, money and resources in the development and retention of its
Inventions, Confidential Information (including trade secrets), customers, accounts and business
partners, and further acknowledges that during the course of the Executive’s employment with the
Company the Executive will have access to the Company’s Inventions and
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Confidential Information (including trade secrets), and will be introduced to existing and
prospective customers, accounts and business partners of the Company. The Executive acknowledges
and agrees that any and all “goodwill” associated with any existing or prospective customer,
account or business partner belongs exclusively to the Company, including, but not limited to, any
goodwill created as a result of direct or indirect contacts or relationships between the Executive
and any existing or prospective customers, accounts or business partners. Additionally, the
parties acknowledge and agree that Executive possesses skills that are special, unique or
extraordinary and that the value of the Company depends upon his use of such skills on its behalf.
In recognition of this, the Executive covenants and agrees that:
(a) During the Term, and for a period of twelve (12) months thereafter, the Executive may not,
without the prior written consent of the Board, (whether as an employee, agent, owner, partner,
consultant, independent contractor, representative, stockholder or in any other capacity
whatsoever) participate in any business that offers products or services competitive in any way to
those offered by the Company or that were under active development by the Company during the Term,
provided that nothing herein shall prohibit the Executive from owning securities of corporations
which are listed on a national securities exchange or traded in the national over-the-counter
market in an amount which shall not exceed five percent (5%) of the outstanding shares of an such
corporation.
(b) During the Term, and for a period of twelve (12) months thereafter, the Executive may not
entice, solicit or encourage any Company employee to leave the employ of the Company or any
independent contractor to sever its engagement with the Company, absent prior written consent to do
so from the Board.
(c) During the Term, and for a period of twelve (12) months thereafter, the Executive may not,
directly or indirectly, entice, solicit or encourage any customer or prospective customer of the
Company to cease doing business with the Company, reduce its relationship with the Company or
refrain from establishing or expanding a relationship with the Company.
Provided, however, that this Section 9 shall not apply if the Company terminates the Executive
Without Cause or Executive terminates this Agreement for Good Reason.
10. Non-Disparagement. The Executive hereby agrees that during the Term, and for
twelve (12) months thereafter, the Executive will not make any statement that is disparaging about
the Company, any of its officers, directors, or shareholders (in their capacity as shareholders of
the Company), including, but not limited to, any statement that disparages the products, services,
finances, financial condition, capabilities or other aspect of the business of the Company.
11. Provisions Necessary and Reasonable. (a) The Executive agrees that (i) the
provisions of Sections 7, 8, 9 and 10 of this Agreement are necessary and reasonable to protect the
Company’s Confidential Information, Inventions, and goodwill; (ii) the specific temporal and
substantive provisions set forth in Section 9 of this Agreement are reasonable and necessary to
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protect the Company’s business interests; and (iii) in the event of any breach of any of the
covenants set forth herein, the Company would suffer substantial irreparable harm and would not
have an adequate remedy at law for such breach. In recognition of the foregoing, the Executive
agrees that in the event of a breach or threatened breach of any of these covenants, in addition to
such other remedies as the Company may have at law, without posting any bond or security, the
Company shall be entitled to seek and obtain equitable relief, in the form of specific performance,
and/or temporary, preliminary or permanent injunctive relief, or any other equitable remedy which
then may be available. The seeking of such injunction or order shall not affect the Company’s
right to seek and obtain damages or other equitable relief on account of any such actual or
threatened breach.
(a) If any of the covenants contained in Sections 7, 8, 9 and 10 hereof, or any part thereof,
are hereafter construed to be invalid or unenforceable, the same shall not affect the remainder of
the covenant or covenants, which shall be given full effect without regard to the invalid portions.
(b) If any of the covenants contained in Sections 7, 8, 9 and 10 hereof, or any part thereof,
are held to be unenforceable by a court of competent jurisdiction because of the temporal scope of
such provision or the area covered thereby, the parties agree that the court making such
determination shall have the power to reduce the duration of such provision and, in its reduced
form, such provision shall be enforceable.
12. Representations Regarding Prior Work and Legal Obligations.
(a) The Executive represents that the Executive has no agreement or other legal obligation
with any prior employer, or any other person or entity, that restricts the Executive’s ability to
accept employment with, or to perform any function for, the Company.
(b) The Executive has been advised by the Company that at no time should the Executive
divulge to or use for the benefit of the Company any trade secret or confidential or proprietary
information of any previous employer. The Executive expressly acknowledges that the Executive has
not divulged or used any such information for the benefit of the Company.
(c) The Executive acknowledges that the Executive has not and will not misappropriate any
Invention that the Executive played any part in creating while working for any former employer.
(d) The Executive acknowledges that the Company is basing important business decisions on
these representations, and affirms that all of the statements included herein are true.
13. Successors; Binding Agreement. This Agreement and all rights of the Executive
hereunder shall inure to the benefit of and be enforceable by the Executive’s personal or legal
representatives, executors, administrators, successors, heirs, distributees, devisees and legatees.
If the Executive should die, all amounts due following the Executive’s death, unless otherwise
provided herein, shall be paid in accordance with the terms of this Agreement to the Executive’s
devisee, legatee, or other designee or, if there is no such designee, to the Executive’s estate.
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14. Notice. For the purposes of this Agreement, notices, demands and all other
communications provided for in this Agreement shall be in writing and shall be deemed to have been
duly given when delivered or (unless otherwise specified) mailed by United States certified or
registered mail, return receipt requested, postage prepaid, addressed as follows:
If to the Executive:
Xxxxx Xxxxxxx
000 Xxxxx Xxxxx
Xxxxx
XX, 00000
Tel: x0 000 000 0000
000 Xxxxx Xxxxx
Xxxxx
XX, 00000
Tel: x0 000 000 0000
PERSONAL AND CONFIDENTIAL
If to the Company:
O2Diesel Corporation
000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxx
Fax: 000-000-0000
000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxx
Fax: 000-000-0000
or to such other address as any party may have furnished to the other in writing in accordance
herewith, except that notices of change of address shall be effective only upon receipt.
15. Miscellaneous. No provisions of this Agreement may be amended, modified, waived
or discharged unless such amendment, waiver, modification or discharge is agreed to in writing
signed by the Executive and such officer of the Company as may be specifically designated by the
Board. No waiver by either party hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time. No agreements or representations, oral or otherwise, express or implied,
with respect to the subject matter hereof have been made by either party which are not set forth
expressly in this Agreement. This Agreement shall be binding on all successors to the Company.
16. Severability. The invalidity or unenforceability of any provision or provisions
of this Agreement shall not affect the validity or enforceability of any other provision of this
Agreement, which shall remain in full force and affect.
17. Dispute Resolution. Any controversy or claim arising out of this Agreement or any
aspect of the Executive’s relationship with the Company including the cessation thereof (other than
disputes with respect to alleged violations of the covenants contained in Sections 7, 8,
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9 or 10 hereof), shall be resolved by arbitration in accordance with the then existing
Employment Dispute Resolution Rules of the American Arbitration Association, in Newark, Delaware,
and judgment upon the award rendered may be entered in any court having jurisdiction thereof. The
parties shall split equally the costs of arbitration, except that each party shall pay its own
attorneys’ fees. The parties agree that the award of the arbitrator shall be final and binding.
18. Governing Law. The validity, interpretation, construction and performance of this
Agreement shall be governed by and construed and enforced in accordance with the internal laws of
the State of Delaware without regard to the principle of conflicts of laws.
19. Counterparts. This Agreement may be executed in two counterparts, each of which
shall be deemed to be an original but both of which together will constitute one and the same
instrument.
20. Survivorship. The respective rights and obligations of the parties to this
Agreement shall survive the termination of this Agreement or the Executive’s employment hereunder
for any reason to the extent necessary to the intended preservation of such rights and obligations.
21. Representation. The Company represents and warrants that it is fully authorized
and empowered to enter into this Agreement and that the performance of its obligations hereunder
shall not violate any agreement between the Company and any other person, firm or organization.
22. Entire Agreement. This Agreement sets forth the entire agreement of the parties
hereto in respect of the subject matter contained herein and supersedes all prior agreements,
promises, covenants, arrangements, communications, representations or warranties, whether oral or
written, by any officer, employee or representative of any party hereto; and any prior agreement of
the parties hereto in respect of the subject matter contained herein is hereby terminated and
cancelled.
23. Headings. The parties acknowledge that the headings in this Agreement are for
convenience of reference only and shall not control or affect the meaning or construction of this
Agreement.
24. Advice of Counsel. The Executive and the Company hereby acknowledge that each
party has had adequate opportunity to review this Agreement, to obtain the advice of counsel with
respect to this Agreement, and to reflect upon and consider the terms and conditions of this
Agreement. The parties further acknowledge that each party fully understands the terms of this
Agreement and has voluntarily executed this Agreement.
[Signatures appear on following page]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and year first
above written.
EXECUTIVE
|
O2DIESEL CORPORATION | |||
/s/ Xxxxx X. Xxxxxxx
|
/s/ Xxxx X. Xxx | |||
Xxxxx Xxxxxxx
|
Name: Xxxx Xxx | |||
| Title: Chief Executive Officer | ||||
Dated: October, 1st 2005
|
Dated: October, 1st 2005 |
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Annex A
Form of Release
Form of Release
Employee hereby expressly waives, releases, acquits and forever discharges the Company and its
divisions, subsidiaries, affiliates, parents, related entities, partners, officers, directors,
shareholders, investors, executives, managers, employees, agents, attorneys, representatives,
successors and assigns (hereinafter collectively referred to as “Releasees”), from any and all
claims, demands, and causes of action which Employee has or claims to have, whether known or
unknown, of whatever nature, which exist or may exist on Employee’s behalf from the beginning of
time up to and including the date of this Agreement. As used in this paragraph, “claims,”
“demands,” and “causes of action” include, but are not limited to, claims based on contract,
whether express or implied, fraud, stock fraud, defamation, wrongful termination, estoppel, equity,
tort, retaliation, intellectual property, personal injury, spoliation of evidence, emotional
distress, public policy, wage and hour law, statute or common law, claims for severance pay, claims
related to stock options and/or fringe benefits, claims for attorneys’ fees, vacation pay, debts,
accounts, compensatory damages, punitive or exemplary damages, liquidated damages, and any and all
claims arising under any federal, state, or local statute, law, or ordinance prohibiting
discrimination on account of race, color, sex, age, religion, sexual orientation, disability or
national origin, including but not limited to, the Age Discrimination in Employment Act, Title VII
of the Civil Rights Act of 1964 as amended, the Americans with Disabilities Act, the Family and
Medical Leave Act or the Employee Retirement Income Security Act.
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