SEPARATION AGREEMENT AND GENERAL RELEASE
SEPARATION AGREEMENT AND GENERAL RELEASE
This SEPARATION AGREEMENT AND GENERAL RELEASE (hereinafter
“Agreement” or “Separation Agreement and General Release”) is made and entered into by and
between XXXXXX XXXXXX (hereinafter “Xx. XXXXXX”) and Enova Systems, Inc. (hereinafter the
“COMPANY”). (Xx. XXXXXX and the COMPANY are hereinafter collectively referred to as the “Parties.”)
RECITALS
A. Xx. XXXXXX’x employment with the Company shall cease effective as of December
31,2010, and shall constitute a separation of employment from the Company without cause as
contemplated in Section 1.1 of the Severance Agreement between Xx. XXXXXX and the Company dated
February 23, 2009 (the “Severance Agreement”).
B. Section 1.1 of the Severance Agreement provides that so long as Xx. XXXXXX “first signs a
Company-prepared separation agreement releasing any and all releasable claims, severance pay from
the date of termination for a period of twelve (12) months after the date of termination (the
“Severance Period”), in an amount equal to the Executive’s salary at the rate in effect immediately
prior to the date of termination, which severance pay shall be payable during the Severance Period
in accordance with the Company’s customary payroll practices” shall be paid to Xx. XXXXXX. In
addition, Xx. XXXXXX agrees to waive his rights under Section 1.1 of the Severance Agreement as it
pertains to health insurance as paid by the COMPANY (3 months COBRA premium to be paid by the
COMPANY) in exchange for continued “employee status” participation in the COMPANY health plan for
the Severance Period, after which Xx. XXXXXX will become eligible to begin COBRA coverage.
C. Pursuant to the Severance Agreement and this Agreement as set forth herein, Xx. XXXXXX has
agreed to accept the severance benefits set forth in Section 1.1of the Severance Agreement, in full
discharge and release of the Company of and from any other obligations to Xx. XXXXXX.
NOW, THEREFORE, in consideration of the premises and promises herein contained, the adequacy
and receipt of which are hereby acknowledged by the Parties, the Parties agree as follows:
AGREEMENTS
1. Employment Cessation, Etc.: Xx. XXXXXX’x employment with the COMPANY shall cease effective
December 31 , 2010 (the “Separation Date”). Also effective as of the Separation Date, Xx. XXXXXX
shall cease to hold any office or title at the COMPANY. He shall be paid through the Separation
Date and shall receive payment in full for any wages accrued as of the Separation Date, including,
but not limited to, any accrued but unused vacation through the Separation Date. In addition, if
not already reimbursed, any of Xx. XXXXXX’x expenses, to the extent reimbursable pursuant to the
COMPANY’s reimbursement policy and practice, shall be reimbursed as well, no later than the
Separation Date.
2. Benefits For Xx. XXXXXX From COMPANY: In consideration for Xx. XXXXXX’x entering into and
complying with this Agreement, Xx. XXXXXX acknowledges that the only benefits, compensation,
consideration, pay, property and/or funds owed to Xx. XXXXXX after the Separation Date shall be
those set forth in Section 1.1 of the Severance Agreement. Mr.
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XXXXXX acknowledges and agrees that it is his intent and understanding that he will be
entitled to no benefits, compensation, consideration, pay, property and/or funds beyond those which
are expressly provided for in the Severance Agreement or have been provided for in the cash bonus
arrangements disclosed in the COMPANY’s March 22, 2010 form 8-K.
3. Taxes: Xx. XXXXXX acknowledges and agrees that the COMPANY has made no representations to
him regarding the tax consequences of any amounts received by him pursuant to the Severance
Agreement or otherwise. Xx. XXXXXX agrees to bear sole responsibility to pay federal and/or state
taxes, if any, that are required by law to be paid with respect to this Agreement and the Severance
Agreement. Xx. XXXXXX further agrees to indemnify and hold the COMPANY, and all of its employees,
principals and agents, harmless from any claims, demands, deficiencies, levies, assessments,
executions, judgments or recoveries by any governmental entity against the COMPANY for any amounts
claimed due on account of this Agreement or the Severance Agreement or pursuant to claims made
under any federal or state tax laws, and any costs, expenses or damages sustained by the COMPANY or
its employees or principals by reason of any such claims, including any amounts paid by them as
taxes, attorneys’ fees, deficiencies, levies, assessments, fines, penalties, interest or otherwise.
4. General Release Of All Claims:
As a material inducement to the COMPANY and as required by the Severance Agreement, Xx.
XXXXXX, on behalf of himself, his heirs, and assigns, hereby releases and forever discharges the
COMPANY, any and all of its affiliates, and the present and former owners, officers, directors,
trustees, employees, agents, representatives, attorneys, and insurers of any of them , and all
persons or entities acting by, through, under or in concert with any of them (collectively
“Releasees”), of and from any and all liabilities, claims, obligations, promises, agreements,
demands, damages, actions, charges, complaints, costs, losses, debts and expenses (including
attorney’s fees and costs actually incurred), causes of action of every kind, known or unknown,
disclosed or undisclosed, matured or unmatured, which Xx. XXXXXX may have now or in the future
arising from any act or omission or condition arising prior to his signing this Agreement,
including, but not limited to, all claims under state, federal, or common law, whether based in
contract, tort, statute or otherwise, and including, but not limited to , claims arising from or
relating to his employment or the cessation thereof; provided, however, that this Separation
Agreement and General Release does not release any claims that cannot lawfully be released by this
Agreement, and does not impact any vested right that he may have pursuant to any COMPANY retirement
or stock option plans, if any, and the two performance-based cash bonus arrangements disclosed in
the COMPANY’s March 22, 2010 Form 8-K in accordance with the provisions disclosed therein as determined and implemented by the Board of Directors. (All claims released hereby are
hereinafter collectively referred to as the “Claims.”)
5. No Complaints: Xx. XXXXXX represents that he has not filed any complaints, claims, or
actions against the Company, its officers, agents, directors, supervisors, employees, or
representatives with any state, federal, or local agency or court or any other forum.
6. Waiver Of Unknown Claims: Xx. XXXXXX understands and agrees that the released Claims
include not only Claims presently known to Xx. XXXXXX but also include all unknown or unanticipated
Claims. Xx. XXXXXX knowingly and voluntarily waives any and all rights or benefits that he may now
have, or in the future may have, under the terms of Section 1542 of the California Civil Code,
which provides as follows:
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A general release does not extend to claims which the creditor
does not know or suspect to exist in his or her favor at the time
of executing the release, which if known by him or her must have
materially affected his or her settlement with the debtor.
7. Non-Disparagement: Xx. XXXXXX agrees not to disparage any of the Releasees.
8. No Future Employment: Xx. XXXXXX hereby waives any right he may have to reinstatement or
future employment with the COMPANY and/or any of its affiliates, and Xx. XXXXXX agrees not to seek
such employment and not to perform any work for such entities.
9. No Use of Confidential/Proprietary Information: Xx. XXXXXX represents and warrants that he
has returned to the COMPANY any files, keys, credit cards, cell phones, computers, and any other
property belonging to the COMPANY and/or its affiliates. Such property includes, but is not limited
to, files, documents, letters, notes, programs, software, media, photographs, lists, manuals,
records, notebooks, and similar repositories of “Confidential Information,” including all copies
thereof, whether prepared by Xx. XXXXXX or others. Xx. XXXXXX agrees not, directly or indirectly,
to use, disseminate, disclose, lecture upon, or publish any Confidential Information, unless
specifically authorized in writing by the CEO of the COMPANY. The term “Confidential Information”
means all of the valuable, confidential, and proprietary information relating to the COMPANY, in
whatever form, whether oral, written, or electronic, to which Xx. XXXXXX has, or is given (or has
had or been given), access. Such Confidential Information includes, without limitation, non-public
information regarding marketing and sales, pricing, business plans, customer lists, personnel,
labor-management issues, and operations, as well as any other non-public information relating to
the management, well-being and products of the COMPANY. This restriction shall not apply to any
Confidential Information that (a) becomes known generally to the public through no fault of Xx. XXXXXX; (b) is required by applicable law, legal process, or any order or mandate of a court
or other governmental authority to be disclosed; or (c) is reasonably believed by Xx. XXXXXX, based
upon the advice of legal counsel, to be required to be disclosed in defense of a lawsuit or other
legal or administrative action brought against Xx. XXXXXX;
provided, that in the case of clauses
(b) or (c) above, Xx. XXXXXX shall give the CEO of the COMPANY reasonable advance written notice of
not fewer than 10 business days of the Confidential Information intended to be disclosed and the
reasons and circumstances surrounding such disclosure, in order to permit the COMPANY to seek a
protective order or other appropriate request for confidential treatment of the applicable
Confidential Information.
10. Indemnification And Forfeiture In The Event Of Breach: As a further material inducement to
the COMPANY, Xx. XXXXXX hereby agrees to indemnify and hold the Releasees harmless from and against
any and all loss, cost, damage or expense, including, but not limited to, attorney’s fees incurred
by them, arising out of any breach of this Agreement by Xx. XXXXXX, and the term “breach” shall
include, without limitation, any false representation made by Xx. XXXXXX herein.
11. No Reliance On Other Representations: Xx. XXXXXX represents and acknowledges that in
executing this Agreement, he does not rely and has not relied upon any representation or statements
made by any of the Releasees with regard to the subject matter, basis, or effect of this Agreement
or otherwise beyond those expressly contained herein. Xx. XXXXXX represents that he has carefully
read and fully understands all provisions of this
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Agreement, and that he is voluntarily entering into this Agreement after adequate time to consider
its terms and to consult with legal counsel if he so chose.
12. Miscellaneous: In further consideration of this Agreement, Xx. XXXXXX and the COMPANY
agree as follows:
(a) The terms mentioned in the preceding paragraphs of this Agreement are the entire
and only consideration for it, and each of the Parties hereto shall be responsible for
payment of his or its own attorney’s fees, costs, and legal expenses, if any;
(b) 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 the Parties
hereto, or any of the Parties released hereby;
(c) This Agreement is entered into in the State of California and shall be construed
and interpreted in accordance with its law;
(d) The various provisions of this Agreement are severable and if any is
unenforceable, at law or in equity, that provision may be severed, leaving the others
remaining in full force and effect if such severance does not cause a material detriment to
the party desiring enforcement of such provision;
(e) Paragraph headings contained in this Agreement are for convenience only and shall
not be considered for any purpose in construing the Agreement;
(f) This Agreement may only be modified by a written agreement identified as an
amendment/modification to this Agreement and signed by the Parties hereto; and
(g) This Agreement contains the entire agreement between the Parties to it with regard
to the matters set forth in it and shall be binding upon and inure to the benefit of the
executors, administrators, personal representatives, heirs, successors and assigns of each.
This Agreement fully supersedes any and all negotiations, and all prior written, oral, or
implied agreements or understandings between the Parties hereto pertaining to the subject
matters hereof except for any existing confidentiality agreements or similar non-disclosure
agreements.
PLEASE READ CAREFULLY. THIS SEPARATION
AGREEMENT AND GENERAL RELEASE INCLUDES
A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
AGREEMENT AND GENERAL RELEASE INCLUDES
A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
| DATED: December 10, 2010 | /s/ Xxxxxx Xxxxxx |
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| XXXXXX XXXXXX | ||||
| DATED: December 10, 2010 | Enova Systems, Inc. | |||
| By: | /s/ Xxxx Xxxxxx |
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| XXXX XXXXXX | ||||
| President and CEO | ||||
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