SEVERANCE AGREEMENT AND COVENANTS
1.
PARTIES.
The
parties to this Severance Agreement and Covenants (hereinafter “Agreement”)
are
XXXXX XXXX (“TORO”) and SOLAR THIN FILMS, INC., a Delaware corporation f/k/a
American United Global, Inc. (“SOLAR”).
1.1 XXXXX
XXXX.
For
the
purposes of this Agreement, TORO means XXXXX XXXX, TORO’s heirs, executors,
administrators, assigns, and spouse (as applicable).
1.2 THE
COMPANY.
For
purposes of this Agreement the “Company”
means
SOLAR THIN FILMS, INC., and all subsidiaries, affiliated companies and other
business entities thereof, all predecessors and successors of each, and all
of
each entity’s
officers, shareholders, directors, employees, agents, or assigns, in their
individual and representative capacities.
2.
BACKGROUND
AND PURPOSE.
TORO
was
employed by SOLAR. TORO’s employment ended effective June 1, 2007 (the
“Termination Date”). The parties are entering into this Agreement to define the
severance relationship and to settle fully and finally, any and all claims
TORO
may have against Company, whether asserted or not, known or unknown, including,
but not limited to, claims arising out of or related to TORO’s employment, claim
for reemployment, board membership, board observation rights, any termination
or
any other claims whether asserted or not, known or unknown, past or future,
that
relate to TORO’s employment, termination, reemployment, or application for
reemployment.
3.
ACKNOWLEDGEMENTS
AND REPRESENTATIONS.
3.1 PAYMENT.
TORO
acknowledges and agrees that he has been paid all earned salary and accrued
vacation pay that is owed through the Termination Date.
3.2 EMPLOYEE
BENEFITS.
TORO
acknowledges and agrees that he has received information regarding his rights
to
health insurance continuation and retirement benefits. Toro acknowledges that
such rights, if any, have been terminated.
3.3 AGREEMENT
COVENANTS.
TORO
acknowledges and agrees that under the Executive Employment Agreement dated
October 31, 2006 (the “Employment Agreement”), he has been, and will be, for an
indefinite period, bound by a covenant involving Confidential Information (as
defined in the Employment Agreement). In addition, TORO acknowledges and agrees
that, under the Employment Agreement, he has and will be, until the one year
anniversary of the Termination Date, bound by a noncompete provision and during
such period, he is bound by a non-solicit provision. In regards to the
noncompete provision, the parties to this agreement hereby mutually agree that
the definition Competing Business as originally utilized in the Employment
Agreement shall hereinafter be limited to the business of Kraft Projects Zrt.
or
its affiliates (“Competitor”). TORO understands that COMPANY retains the right
to enforce its rights under the original noncompete provision as applicable
to
Competitor and all other remaining provisions of the Employment Agreement,
including the non-solicit provision.
4.
RELEASES.
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4.1 TORO’S
RELEASE.
TORO
waives, acquits, forever discharges and hereby releases Company from any and
all
claims, demands, actions, or causes of action, whether known or unknown, arising
from or related in any way to any employment of or past or future failure or
refusal to employ TORO by Company, or any other past or future claim (except
as
reserved by this Agreement or where expressly prohibited by law) that relates
in
any way to TORO’s employment, employment contract, board membership, board
observation rights, any termination, compensation, benefits, reemployment or
application for employment, with the exception of any claim either party may
have for enforcement of this Agreement. This release includes any and all
claims, direct or indirect, which might otherwise be made under any applicable
local, state or federal authority, including but not limited to any claim
arising under the state or local statutes where TORO was employed by Company
dealing with employment, discrimination in employment, Title VII of the Civil
Rights Act of 1964, the Civil Rights Act of 1991, the Americans With
Disabilities Act, the Family and Medical Leave Act of 1993, the Equal Pay Act
of
1963, Executive Order 11246, the Rehabilitation Act of 1973, the Uniformed
Services Employment and Reemployment Rights Act of 1994, the Age Discrimination
in Employment Act, the Older Workers Benefit Protection Act, the Fair Labor
Standards Act, wage and hour statutes of the state where employed, all as
amended, any regulations under such authorities, or any other applicable
statutory contract, tort, or common law theories, except that TORO does not
release SOLAR from its obligations under this Agreement, its contribution and
indemnification
obligations, if any, or from any coverage under any policy of insurance
providing indemnity and related costs for the benefit of TORO.
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4.2 NO
ADMISSION OF LIABILITY.
It
is
understood and agreed that the acts done and evidenced hereby and the release
granted hereunder is not an admission of liability on the part of TORO, SOLAR
or
Company, by whom liability has been and is expressly denied.
5. CONSIDERATION.
After
receipt of this Agreement properly and fully endorsed by TORO, SOLAR will be
obligated to pay to TORO: Thirty Four Thousand dollars ($34,000.00) (less proper
withholding), payable upon execution.
As
additional consideration for entering into this Agreement, TORO hereby agrees
to
terminate those certain options granted to TORO pursuant to the Employment
Agreement.
6. MUTUAL
NONDISPARAGEMENT.
TORO
agrees that TORO will not disparage or make false statements about Company.
SOLAR should report to TORO any actions or statements that are attributed to
TORO that SOLAR believes are disparaging or false. SOLAR may take actions
consistent with the provision for breach of the agreement should it determine
that TORO has disparaged or made false statements about Company.
SOLAR
agrees that its officers and directors will not disparage or make false
statements about TORO. TORO should report to SOLAR any actions or statements
that are attributed to SOLAR’s officers or directors which TORO believes are
disparaging or false. TORO may take actions consistent with the provision for
breach of this Agreement should TORO determine that SOLAR’s officers or
directors have disparaged or made false statements about TORO.
7. CONFIDENTIAL,
PROPRIETARY AND TRADE SECRET INFORMATION.
TORO
acknowledges the continuing duties under the Employment Agreement signed by
TORO
and agrees not to use or disclose confidential, proprietary or trade secret
information learned while an employee of SOLAR or its predecessors, including
the terms of this Agreement, and covenants not to breach that duty (except
as
required by law). Should TORO, TORO’s attorney or agents be requested in any
judicial, administrative, or other proceeding or investigation to disclose
confidential, proprietary or trade secret information TORO learned while an
employee of SOLAR or its predecessors, TORO shall promptly notify SOLAR of
such
request.
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8. COVENANTS.
8.1
COVENANT
NOT TO PROSECUTE OR MAINTAIN ANY ACTION OR
PROCEEDING.
In
exchange for the Consideration, TORO covenants as to Company, not to prosecute
or hereafter maintain or institute any action at law, suit or proceeding in
equity, administrative or any proceeding of any kind or nature whatsoever for
any reason related in any way to any claim released herein. TORO further
covenants and agrees that TORO will not raise any claim against Company, by
way
of defense, counterclaim or cross-claim or in any other manner, on any alleged
claim, demand, liability or cause of action released herein. At the time of
his
execution of this Agreement, TORO represents that there are no claims,
complaints or charges pending against Company in which TORO is a party or
complainant. Further, TORO acknowledges and agrees there are no unasserted
workers’ compensation claims through the date of his execution of this
Agreement.
8.2 COVENANT
TO RETURN ALL COMPANY PROPERTY.
TORO
agrees to return all property of SOLAR or Company, if any, within seven (7)
days
after TORO’s execution of this Agreement. For the purposes of this Agreement,
property includes, but is not limited to, credit cards, keys, card keys,
computers, computer files, all originals and copies of all documents, cell
phone, palm pilot, equipment, supplies, and any other property belonging to
SOLAR or Company. TORO further covenants that, since May 1, 2007, TORO has
no
personal charges nor unauthorized business charges on the credit cards to be
returned or otherwise and agrees to reimburse SOLAR if TORO is
mistaken.
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8.3 COOPERATION
IN DEFENSE OF COMPANY; CONSULTATION.
TORO
agrees to reasonably provide specific operations information to SOLAR as
requested in a reasonable, timely and clear manner to allow SOLAR to continue
and/or complete job tasks, activities, assignments, to continue effective
relationships with business partners by responding to reasonable inquiries
as
needed by telephone (“Consulting Services”). Through August 31, 2007, these
Consulting Services will be at no additional cost to SOLAR beyond what is
provided in this Agreement. Thereafter, SOLAR agrees to pay to TORO $350 per
hour plus reasonable travel and out-of-pocket expenses for any such Consulting
Services.
8.5 RESIGNATION
FROM BOARD OF DIRECTORS.
By
executing Exhibit
A
concurrently with this Agreement, TORO hereby tenders his resignation as an
officer and a director of SOLAR effective June 1, 2007. Further, TORO hereby
agrees to waive any and all rights to notice and attendance at all regular
and
special meetings of TORO’s board of directors.
9.
ARBITRATION
OF CERTAIN DISPUTES; CLAIMS FOR IRREPARABLE HARM;
VENUE.
Except
as
provided below, TORO and SOLAR agree that should any dispute arise between
the
parties whether or not arising out of this Agreement, the issue shall be
submitted to arbitration in New York, New York, before one arbitrator pursuant
to the then current employment rules of the American Arbitration Association.
In
such event, each party shall pay its own costs and attorneys’
fees.
Notwithstanding the above, in the event either party wishes to obtain equitable
relief for violations of paragraphs 6, 7, or 8 including, without limitation,
specific performance, immediate issuance of a temporary restraining order or
preliminary injunction enforcing this Agreement, it may bring a claim for such
relief in arbitration or in an action in an applicable court in New York, New
York.
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10.
SCOPE
OF AGREEMENT.
The
provisions of this Agreement shall be deemed to obligate, extend to, and inure
to the benefit of the parties: Company’s
affiliates, successors, predecessors, assigns, directors, officers, and
employees; and each parties insurers, transferees, grantees, legatees, agents
and heirs, including those who may assume any and all of the above-described
capacities subsequent to the execution and effective date of this
Agreement.
11.
OPPORTUNITY
FOR ADVICE OF COUNSEL.
TORO
acknowledges that TORO has been encouraged by SOLAR to seek advice of counsel
with respect to this Agreement and has had the opportunity to do
so.
12.
SEVERABILITY.
Every
provision of this Agreement is intended to be severable. In the event any term
or provision of this Agreement is declared to be illegal or invalid for any
reason whatsoever by an arbitrator or a court of competent jurisdiction or
by
final and unappealed order of an administrative agency of competent
jurisdiction, such illegality or invalidity should not affect the balance of
the
terms and provisions of this Agreement, which terms and provisions shall remain
binding and enforceable.
13.
NO
WAIVER.
Failure
of either party to enforce any term of this Agreement shall not constitute
a
waiver of the party’s
right
to enforce that term or any other term of this Agreement.
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14.
COSTS
AND ATTORNEY’S
FEES.
The
parties each agree to bear their own costs and attorneys’
fees
which have been or may be incurred in connection with any matter herein or
in
connection with the negotiation and consummation of this Agreement or any action
to enforce the provisions of this Agreement.
15.
GOVERNING
LAW.
The
rights and obligations of the parties under this Agreement shall in all respects
be governed by the laws of the United States and the State of New
York.
16. PAYMENT
TORO
acknowledges that the Agreement provides severance pay and benefits which SOLAR
would otherwise not be obligated to provide. Upon receipt of TORO’s
properly-signed Agreement, payment by SOLAR as provided herein will be forwarded
by mail in a timely manner.
17. ENTIRE
AGREEMENT: MODIFICATION.
This
Agreement and the Employment Agreement signed by TORO contain the entire
agreement and understanding among the parties as to TORO’s separation as an
employee and director. This Agreement supersedes and replaces all other prior
negotiations and proposed agreements, written or oral as to TORO’s separation.
TORO and SOLAR acknowledge that no other party, nor agent nor attorney of any
other party, has made any promise, representation, or warranty, express or
implied, not contained in this Agreement concerning the subject matter of this
Agreement or to induce this Agreement, and TORO and SOLAR acknowledge that
they
have not executed this Agreement in reliance upon any such promise,
representation, or warranty not contained in this Agreement.
No
modification or waiver of any of the provisions or any future representation,
promise or addition shall be binding upon the parties unless made in writing
and
signed by the parties.
[SIGNATURE
PAGE FOLLOWS]
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IN
WITNESS WHEREOF, the undersigned has executed this Severance Agreement and
Convenants as of the 1st
day of
June, 2007.
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Xxxxx
Xxxx
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By:
_______________________________
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Its:
_______________________________
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On
behalf of “SOLAR”
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and
“Company”
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Exhibit
A
RESIGNATION
The
undersigned, Xxxxx Xxxx, effective as of June 20, 2007, hereby resigns from
his
positions as officer and director of Solar Thin Films, Inc., a Delaware
corporation.
_________________________________
Xxxxx
Xxxx
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