EXECUTIVE SEVERANCE AGREEMENT
EXHIBIT
10.55
THIS
EXECUTIVE SEVERANCE AGREEMENT ("Agreement") by and between
Hydrogen Power Inc., a Delaware corporation (the "Company") headquartered at
Metropolitan Tower, 0000 Xxxxxxxx Xxx. Xxxxx 0000 Xxxxxxx,
Xxxxxxxxxx and Xxxxx Xxxxxx (the "Executive"), is made as of
October 20 , 2005 and effective on the date of the closing of the merger
between
Hydrogen Power Inc. and Equitex.
WHEREAS,
the Board of Directors of the Company (the "Board") has determined
that Executive will play a
critical
role in the operations of the Company;
and
WHEREAS,
the Board has determined that appropriate steps should be taken
to
reinforce and encourage the continued employment and dedication of
the
Executive.
NOW,
THEREFORE, as an inducement for and in consideration of the Executive
remaining in its employ, the Company agrees that the Executive shall receive
the
severance benefits set forth in this Agreement in the event the Executive's
employment with the Company is terminated under the circumstances
described below.
1.
Term
and Termination.
(a). The
Initial Term of the Employment Agreement of the Executive shall be extended
on
the date of the closing of the merger between Hydrogen Power Inc.and Equitex
and
it shall continue in effect for a period of five (5) years. Thereafter, the
Agreement shall be renewed upon the mutual agreement of Executive
and Company.
(b). This
Agreement may be terminated by Executive at Executive's discretion by providing
at least thirty (30) days prior written notice to Company.
In the event of termination by Executive pursuant to this subsection,
Company may immediately relieve Executive of all duties and immediately
terminate this Agreement, provided that Company shall pay Executive at the
then
applicable base salary rate to the termination date included
in Executive's original termination notice.
(c). In
the
event that Executive is in breach of any material obligation owed Company in
this Agreement, habitually neglects the duties to be performed under this
Agreement, engages in any conduct which is dishonest, damages the reputation
or
standing of the Company, or is convicted of any criminal act or engages in
any
act of moral turpitude, then Company may terminate this
Agreement
upon one (1) days notice to Executive. In event of termination of the agreement
pursuant to this subsection, Executive shall be paid only at the then applicable
base salary rate up to and including the date of termination. Executive shall
not be paid any incentive Bonus payments or other compensation, prorated or-
otherwise.
2.
Severance Pay.
(a) Severance
Pay Following a Change in Control. In the event a Change in Control (as defined
below) occurs and, within one (1) year thereafter, the employment of the
Executive is terminated by the Company for a reason other than for Cause (as
defined below) or by the Executive for Good Reason (as defined below), then
the
Company shall pay to the Executive (as severance pay) a lump sum payment equal
to (i) his then current base salary multiplied by two (2), plus (ii) his then
current target bonus multiplied by two (2), within 30 days after the Termination
Date (as defined below). The Executive agrees that after the Termination Date,
but prior to payment of the severance pay and bonus called for by this
paragraph, he shall execute a release, based on the Company's standard form
severance agreement, of any and all claims he may have against the Company
and
its officers, employees, directors, parents and affiliates. Executive
understands and agrees that the payment of the severance pay
and bonus called for by this paragraph are contingent on his execution of the
previously described release of claims.
(b) Severance
Pay Absent a Change in Control. In the event the employment
of the Executive is terminated by the Company for a reason other than for Cause
(as defined below), then the Company shall continue to pay
to
the Executive (as severance pay), (1) his regular base salary as in effect
on
the Executive's last day of employment (exclusive of bonus or any other
compensation), for two (2) years following the Termination Date (as defined
below), plus (ii) at the end of each year, the amount of Executive's
target
bonus as in effect on the Executive's last day of employment. Unless
the
parties agree otherwise, the severance pay provided for in clause
(i)
above
shall be paid in installments, in accordance with the Company's regular payroll
practices, and the severance pay set forth in (ii) above shall be paid within
30
days of the end of the fiscal year to which such amount relates.
The Executive agrees that after the Termination Date, but prior to payment
of the severance pay and bonus called for by this paragraph, he shall
execute a release, based on the Company's standard form severance agreement,
of any and all claims he may have against the Company and its officers,
employees, directors, parents and affiliates. Executive understands and agrees
that the payment of the severance pay and bonus called for by
this
paragraph are contingent on his execution of the previously described
release
of claims.
(c) Sole
Remedy. The payment to the Executive of the amounts payable under
this Section shall constitute the sole remedy of the Executive in the
event
of
a termination of the Executive's employment by the Company or a resignation
by
the Executive that results In payment of benefits under this Section
2.
3. Definitions. For
purposes of this Agreement, the following terms shall have
the
following meanings:
(a) "Cause"
shall mean a good faith finding by the Company of: (i) gross negligence
or willful misconduct by Executive in connection with his employment duties,
(ii) failure by Executive to perform his duties or responsibilities required
pursuant to his employment, after written notice and an opportunity to cure,
(iii) mis-appropriation by Executive of the assets or business opportunities
of
the Company, or its affiliates, (iv) embezzlement or other
financial fraud committed by Executive, (v) the Executive knowingly allowing
any third party to commit any of the acts described in any of the preceding
clauses (iii) or (iv), or (vi) the Executive's indictment for, conviction
of, or entry of a plea of no contest with respect to, any felony.
(b) "Good
Reason" shall mean: (i) the unilateral relocation by the Company
of the Executive's principal work place for the Company to a site more
than
60 miles from Seattle, Washington; (ii) a reduction in the Executive's
then current base salary, without the Executive's consent; or (iii) the
Executive's assignment to a position where the duties of the position are
outside
his area of professional competence.
(c) "Change
in Control" shall mean the consummation of any of the following
events: (i) a sale, lease or disposition of all or substantially all of
the
assets of the Company, or (ii) a sale, merger, consolidation, reorganization,
recapitalization, sale of assets, stock purchase, contribution or other similar
transaction (in a single transaction or a series of related transactions) of
the
Company with or into any other corporation or corporations or other entity,
or
any other corporate reorganization, where the stockholders of the Company
immediately prior to such event do not retain (in substantially the same
percentages) beneficial ownership, directly or indirectly, of more than fifty
percent (50%) of the voting power of and interest in the successor entity or
the
entity that controls the successor entity, provided, however, that no Change
in
Control shall be deemed to have occurred due to the conversion or payment of
any
equity or debt instrument
of the Company which is outstanding on the date
hereof.
(d) "Termination
Date" shall mean the Executive's last day on the payroll of
the
Company.
4. Miscellaneous.
(a) Notices.
Any notices delivered under this Agreement shall be deemed duly
delivered four business days after it is sent by registered or certified
mail,
return receipt requested, postage prepaid, or one business day after it
is
sent
for next-business day delivery via a reputable nationwide overnight courier
service, in each case to the address of the recipient set forth in the
introductory paragraph hereto. Either party may change the address to which
notices
are to be delivered by giving notice of such change to the other party.
All
notices to the Company shall also be addressed to the Company's General
Counsel.
(b) Pronouns.
Whenever the context may require, any pronouns used in this
Agreement shall include the corresponding masculine, feminine or neuter forms,
and the singular forms of nouns and pronouns shall include the plural,
and
vice
versa.
(c) Entire
Agreement. This Agreement constitutes the entire agreement between
the parties and supersedes all prior agreements and
understandings,
whether written or oral, relating to the subject matter of this Agreement.
(d) Amendment.
This Agreement may be amended or modified only by a written
instrument executed by both the Company and the Executive.
(e) Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Washington. Any action, suit
or
other
legal matter arising under or relating to any provision of this Agreement
shall be commenced only in a court of the State of Washington. The Company
and
the Executive each hereby irrevocably waive any right to a trial
by
jury in any action, suit or other legal proceeding arising under or relating
to any provision of this Agreement.
(f) Successors
and Assigns. This Agreement shall be binding upon and inure
to
the benefit of both parties and their respective successors and assigns,
including any corporation with which or into which the Company may be merged
or
which may succeed to its assets or business, provided,
06
Nov
2006 11:59AM GLOBAL HYDROFUEL TECHNOLO 000-000-0000
however,
that the obligations of the Executive are personal and shall not be assigned
by him.(g) Waivers.
No delay or omission by the Company in exercising any right under
this Agreement shall operate as a waiver of
that
or
any
other right. A waiver
or
consent given by the Company on any one occasion shall be
effective
only in that instance and shall not
be
construed as a bar or waiver of
any
right on any other occasion.
(h) Captions.
The captions of the sections of this
Agreement are
for
convenience of reference only and in no way define, limit or affect the scope
or
substance of any section of this Agreement.
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(i) Severability.
In case any provision of this Agreement shall be invalid,
illegal
or otherwise unenforceable, the validity,
legality and enforceability of the
remaining provisions shall in no way be affected or impaired
thereby.
THE
EXECUTIVE ACKNOWLEDGES THAT HE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS
AND AGREES TO ALL OF THE PROVISIONS IN
THIS
AGREEMENT.
IN
WITNESS WHEREOF, the parties hereto have
executed this Agreement
as of the day and year set forth above.
|
/s/Xxxxx
Xxxxxx
Title:
Executive Chairman
/s/
Xxxxx
Xxxxxx
|
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