EMPLOYMENT AGREEMENT
Exhibit
10.2
Employment
Agreement dated as of December 29, 2006 (this “Agreement”),
by
and between Gecko Energy Technologies, LLC, a Delaware limited liability company
formerly known as M.C.E. Venture, L.L.C. (the “Company”),
and
Xxxxxx X. Xxxxx, an individual residing in the Commonwealth of Pennsylvania
(“Executive”).
In
consideration of the employment of Executive by the Company and the mutual
covenants set forth herein, and for other good and valuable consideration,
the
receipt and sufficiency of which are hereby acknowledged, the parties agree
as
follows:
1. Term.
The
Company agrees to employ Executive, and Executive accepts such employment,
under
and subject to all of the terms, conditions and provisions hereof, for the
period commencing on the date hereof and ending on December 31, 2008, unless
sooner terminated in accordance with the terms hereof (the “Employment
Term”).
At
the end of the Employment Term, this Agreement shall renew automatically for
additional one-month periods unless either party delivers to the other party
thirty (30) days’ prior written notice of such party’s election that the
Employment Term not be so renewed. If this Agreement is extended in accordance
with the preceding sentence, the “Employment Term” shall be extended until the
end of the applicable extension period.
2. Position
and Duties.
(a)
During the Employment Term, Executive shall serve as the Chief Operating Officer
of the Company and shall have the normal duties, responsibilities, functions
and
authorities customarily exercised by an executive with such title in a company
of similar size and nature as the Company. In addition, during the Employment
Term, Executive shall render such administrative, financial and other executive
and managerial services to the Company which are consistent with Executive’s
position as determined from time to time by the president (“President”)
of
Millennium Cell Inc., the sole member of the Company (“Parent”).
(b) During
the Employment Term, Executive shall report to the President (or any other
executive of Parent designated by Parent) and shall devote his best efforts
and
his full business time and attention (except for permitted vacation periods
and
reasonable periods of illness or other incapacity) to the business and affairs
of the Company. Executive shall diligently and faithfully perform his duties,
responsibilities and functions to the Company hereunder to the best of his
abilities in compliance in all material respects with the Company’s policies and
procedures in effect from time to time and applicable law. During the Employment
Term, Executive shall not serve as an officer or director of, or otherwise
perform services for compensation for, any other entity, provided
that
Executive may serve as an officer or director of or otherwise participate in
purely educational, welfare, social, religious and civic organizations so long
as such activities do not materially interfere with the regular performance
of
Executive’s duties and responsibilities under this Agreement.
3. Compensation;
Fringe Benefits.
(a) During
the Employment Term, as full and complete compensation for the services provided
by Executive hereunder, Executive shall be entitled to an annual base salary
equal to $144,000 (the “Base
Salary”).
The
Base Salary shall be payable by the Company in regular installments in
accordance with the Company’s general payroll practices applicable
to senior executives (in
effect from time to time) but in any event no less frequently than monthly.
Base
Salary may be adjusted upward from time to time during the Employment Term
in
the reasonable discretion of Parent, provided that any decrease in Executive’s
compensation, or any other material amendment to this Agreement, shall require
the consent of the Executive.
(b) In
addition to the Base Salary payable to Executive pursuant to this
Section 3, Executive shall also be entitled to the following benefits
during the Employment Term, unless otherwise modified (but not diminished,
other
than general “across the board” benefit reductions) by Parent:
(i) participation
in Parent’s retirement plans, health and welfare plans and disability insurance
plans, under the terms of such plans and to the same extent and under the same
conditions such participation and coverages are provided to other executives
of
the Company;
(ii) prompt
reimbursement of all reasonable out-of-pocket expenses incurred by Executive
in
carrying out his duties, responsibilities and functions under this Agreement,
subject to presentation of reasonable documentation in accordance with the
Company’s reimbursement policies; and
(iii) four
(4)
weeks paid vacation each calendar year.
4. Termination.
Unless
earlier terminated in accordance with this Section 4, the Company shall
continue to employ Executive and Executive shall remain employed by the Company
during the entire Employment Term as set forth in Section 1.
(a) Accrued
Obligations Upon Any Termination.
In the
case of any termination of Executive’s employment with the Company (including
without limitation, Executive’s resignation and any election not to renew this
Agreement in accordance with Section 1), Executive or his estate or legal
representative, as applicable, shall be entitled to receive from the Company,
to
the extent not theretofore paid, (i) Executive’s Base Salary through the
effective date of termination, (ii) the amount of any bonus, incentive
compensation, deferred compensation and other compensation earned or accrued
by
Executive as of the effective date of termination under any compensation and
benefit plans, programs or arrangements maintained in force by the Company,
and
(iii) any vacation pay, expense reimbursements and other cash entitlements
accrued by Executive, in accordance with Company policy, as of the effective
date of termination (collectively, the “Accrued
Obligations”).
(b) Termination
by the Company other than for Cause.
In the
event that the Company terminates Executive’s employment with the Company for
any reason other than for “Cause” (as defined in Section 4(g)) or due to
Executive’s Disability (as defined in Section 4(g)), Executive shall be
entitled to a lump-sum cash payment, within thirty (30) days following the
effective date of such termination (subject to receipt of the Release as
provided below), equal to the sum of (i) the Accrued Obligations, and
(ii) an amount equal to two (2) times Executive’s annual Base Salary
(as in effect on the effective date of Executive’s termination). As a condition
to the payment of any severance to Executive hereunder, Executive shall execute
and deliver to the Company the “Release” in the form attached hereto as
Exhibit A.
(c) Termination
for Cause, Voluntary Resignation, Death or Disability, Election Not to
Renew.
In the
event that (i) Executive’s employment with the Company is terminated (A) by
the Company for Cause, (B) by Executive’s resignation from the Company for
any reason or (C) as a result of Executive’s death or Disability, or
(ii) either the Company or Executive elects not to renew this Agreement in
accordance with Section 1, then Executive, or his estate or legal
representatives, as applicable, shall be entitled only to the Accrued
Obligations, payable in a lump-sum cash payment within thirty (30) days
following the effective date of such termination.
(d) No
Other Payments.
Except
as provided in (a), (b) or (c) above, all of Executive’s rights to salary,
bonuses, employee benefits and other compensation hereunder which would have
accrued or become payable after the termination or expiration of the Employment
Term shall cease upon such termination or expiration, other than those expressly
required under applicable law (such as COBRA).
(e) No
Mitigation, No Offset.
In the
event of Executive’s termination of employment hereunder for whatever reason,
Executive shall be under no obligation to seek other employment, and there
shall
be no offset against amounts due him under this Agreement or otherwise on
account of any remuneration attributable to any subsequent employment or claims
asserted by the Company or any Person which directly or indirectly through
one
or more intermediaries controls, or is controlled by, or is under common control
with, the Company (each, an “Affiliate”);
provided
that
this provision shall not apply with respect to any amounts that Executive owes
the Company or any Affiliate on account of any loan, advance or other payment,
in respect of any of which Executive is obligated to make repayment to the
Company or any Affiliate.
(f) Definitions.
For
purposes of this Agreement, the following terms have the following
meanings:
(i) “Cause”
means
one or more of the following: (A) the conviction of Executive for, or an
agreement by Executive to a plea of nolo
contendere
to,
any
felony or other crime involving moral turpitude; (B) Executive’s willful
and continuing refusal to substantially perform duties as reasonably directed
by
the President under this or any other agreement (after receipt of written notice
from the Parent setting forth such duties and responsibilities to be performed);
(C) in carrying out his duties, Executive engages in conduct that
constitutes gross neglect or gross misconduct which, in either case, results
or
could reasonably be expected to result in demonstrable harm to the business,
operations, prospects or reputation of the Company; or (D) any
other
material breach of Section 5 of this Agreement.
(ii) “Disability”
shall
be deemed the reason for the termination of Executive’s employment, if, as a
result of Executive’s incapacity due to physical or mental disability or
incapacity, Executive shall have been unable to substantially perform the
essential duties, responsibilities and functions of his position with the
Company for a period of six (6) consecutive months. At any time and from time
to
time, upon the reasonable request of the Company, Executive shall submit to
reasonable medical examination for the purpose of determining the existence,
nature and extent of any such Disability.
5. Non-Competition;
Non-Solicitation; Non-Disparagement; Corporate Opportunity.
(a) In
further consideration of the compensation to be paid to Executive hereunder,
Executive acknowledges that during the course of his employment with the
Company, he shall become familiar with the Company’s trade secrets and with
other Confidential Information (as defined in this Agreement) concerning the
Company and its Affiliates and that his services shall be of special, unique
and
extraordinary value to the Company and, therefore, Executive agrees that, during
the Employment Term and for a period of one (1) year thereafter (the
“Restricted
Period”),
he
shall not directly or indirectly own any interest in, manage, control,
participate in, consult with, render services for, be employed in an executive,
managerial or administrative capacity by, or in any manner engage in any company
engaged in a business which competes with the businesses of the Company or
its
Affiliates, as such businesses exist or are in process during the Employment
Term or on the date of the termination or expiration of the Employment Term,
within any geographical area in which the Company or its Affiliates engage
or
have definitive plans to engage in such businesses. Nothing in this
Section 5(a) shall prohibit Executive from being a passive owner of not
more than 2% of the outstanding stock of any class of a corporation which is
publicly traded, so long as Executive has no active participation in the
business of such corporation.
(b) During
the Restricted Period, other than in the course of Executive’s performance of
his duties, responsibilities and functions hereunder on behalf of the Company,
Executive shall not for any reason, directly or indirectly through another
Person, (i) induce or attempt to induce any officer, director, employee,
contractor, consultant or advisor (collectively, “Personnel”)
of the
Company or any of its Affiliates to end or terminate its relationship with
the
Company or such Affiliate, or in any way interfere with the relationship between
the Company or such Affiliate and any of their Personnel, (ii) knowingly
hire or assist a third party in hiring, or solicit for hire, any member of
the
Personnel of the Company or any of its Affiliates until six (6) months
after such individual’s relationship with the Company and/or such Affiliate has
been terminated or (iii) induce or attempt to induce any client, customer,
supplier, vendor, licensor, licensee or other business relation of the Company
or any of its Affiliates to cease doing business with the Company or such
Affiliate, or in any way interfere with the relationship between any such
client, customer, supplier, vendor, licensor, licensee or business relation
and
the Company or such Affiliate.
(c) During
the Restricted Period, Executive agrees not to make any disparaging comment
or
statement about the Company, any of its Affiliates, or any of the Company’s
products or technology, whether or not true, including but not limited to,
comments which could adversely affect the conduct of the business of the Company
or its Affiliates, or any of their respective plans, prospects, business names
or reputations.
(d) During
the Employment Term, Executive shall submit to the Company and Parent all
business, commercial and investment opportunities or offers presented to
Executive that relate to the business of planar fuel cell technology
(“Corporate
Opportunities”),
if
Executive wishes to accept or pursue, directly or indirectly, such Corporate
Opportunities on Executive’s own behalf. This Section shall not apply to
purchases of publicly traded stock by Executive.
6. Confidential
Information.
(a)
Executive recognizes and acknowledges that the products, services and
technology, both current and under development, promotion and marketing
programs, lists, trade secrets and other confidential and Proprietary
Information (as defined below) of the Company or any of its Affiliates (all
the
foregoing is referred to herein as the “Confidential
Information”),
are
valuable, special and unique assets of the Company’s and its Affiliates’
businesses, the access to and knowledge of which are essential to the
performance of the duties of Executive hereunder. Executive agrees that during
the Employment Term and at all times thereafter, he will not, in whole or in
part, without the prior written consent of the Company, (x) use any
Confidential Information for his own benefit and purposes or for the benefit
of
any Person except the Company, under any circumstances, or (y) disclose,
publish or make available any Confidential Information to any Person for any
reason or purpose whatsoever, except as required in connection with Executive’s
duties to the Company and except to the Company’s Personnel and similar
representatives who are aware of the confidential nature thereof and are bound
by a duty of confidentiality with respect thereto. Notwithstanding the
foregoing, Executive may disclose (i) information in the public domain not
as a
result of a breach of this Agreement, (ii) information lawfully received from
a
third party who had the right to disclose such information and was not violating
an obligation to the Company in connection therewith and (iii) information,
other than Proprietary Information, learned through Executive’s own independent
skill, knowledge, know-how and experience to whatever extent and in whatever
way
Executive wishes, in each case consistent with Executive’s obligations under
this Agreement.
(b) In
the
event that Executive is requested or required (by oral questions, deposition,
interrogatories, requests for information or documents, subpoena, civil
investigative demand or other process) to disclose all or any part of any
Confidential Information, Executive shall provide the Company with prompt notice
of such request or requirement so that the Company may seek an appropriate
protective order or waive compliance with the provisions of this Section 6,
as well as notice of the terms and circumstances surrounding such request or
requirement. In any such case, Executive shall discuss with the Company the
advisability of pursuing any such order or other legal action or available
steps
to resist or narrow such request or requirement. If, failing the entry of a
protective order or the receipt of a waiver hereunder, Executive is legally
compelled to disclose Confidential Information, Executive may disclose that
portion of the Confidential Information which Executive is legally compelled
to
disclose. In any event, Executive shall use reasonable efforts to cooperate
with
the Company’s efforts to obtain and shall not oppose action by the Company to
obtain, an appropriate protective order or other reliable assurance that
confidential treatment will be accorded the disclosure of such
information.
(c) Upon
written notice by the Company, Executive shall promptly redeliver to the
Company, or, if requested by the Company, promptly destroy, all written,
electronic or otherwise tangible Confidential Information of the Company and
any
other written, electronic or otherwise tangible material containing any
information included in the Confidential Information of the Company (whether
prepared by the Company or a third party), and will not retain any copies,
extracts or other reproductions in whole or in part of such written Confidential
Information of the Company (and upon request certify such redelivery or
destruction to the Company in a written instrument reasonably acceptable to
the
Company and its counsel).
7. Ownership
of Proprietary Information.
Executive acknowledges and agrees that all information that has been created,
discovered or developed by the Company or its subsidiaries, Affiliates,
licensors, licensees, strategic partner, successors or assigns (collectively,
the “Developers”)
(including, without limitation, information relating to the development of
the
Company’s business created, discovered, developed or made known to the Company
or its Affiliates by Executive during the Employment Term and information
relating to the Company’s or a Developer’s customers, suppliers and consultants)
and/or in which property rights have been assigned or otherwise conveyed to
the
Company or such Developer, shall be the sole property of the Company or such
Developer, as applicable, and the Company or such Developer, as applicable,
shall be the sole owner of all patents, patent rights, licenses and other
proprietary rights in connection therewith, including, but not limited to,
the
right to file applications for statutory protection. All of the aforementioned
information is hereinafter called “Proprietary
Information”.
By way
of illustration, but not limitation, Proprietary Information includes trade
secrets, processes, discoveries, structures, designs, ideas, works of
authorship, copyrightable works, trademarks, copyrights, formulas, data,
know-how, show-how, improvements, inventions, product concepts, techniques,
marketing plans, strategies, forecasts, blueprints, sketches, records, notes,
devices, drawings, customer lists, patent applications, continuation
applications, continuation-in-part applications, file wrapper continuation
applications and divisional applications and information about Personnel
(including, without limitation, the compensation, responsibility and performance
of such Personnel).
8. Disclosure
and Ownership of Inventions.
(a)
During the Employment Term, Executive agrees that he will promptly disclose
to
the Company, or any Person designated by the Company, any and all Proprietary
Information made or conceived or reduced to practice or learned by Executive
in
connection with Executive’s duties, responsibilities and functions hereunder,
either alone or jointly with others, during the Employment Term (collectively,
“Inventions”).
(b) Executive
agrees that all Inventions shall be the sole property of the Company to the
maximum extent permitted by applicable law and to the extent permitted by law
shall be “works made for hire” as that term is defined in the United States
Copyright Act (17 USCA, Section 101). To the extent that any Inventions are
not
deemed “works made for hire”, Executive hereby agrees to assign such Invention
to the Company. The Company shall be the sole owner of all patents, copyrights,
trademarks, trade secret rights and other intellectual property or other rights
in connection therewith. Executive hereby agrees to assign to the Company all
right, title and interest Executive may have or acquire in all Inventions.
Executive further agrees to assist the Company in every proper way (but at
the
Company’s expense) to obtain and from time to time enforce patents, copyrights,
trademarks or other rights on said Inventions in any and all countries, and
to
that end Executive will execute all documents necessary:
(i) to
apply
for, obtain and vest in the name of the Company alone (unless the Company
otherwise directs) letters patent, copyrights, trademarks or other analogous
protection in any country throughout the world and when so obtained or vested
to
renew and restore the same; and
(ii) to
defend
any opposition proceedings in respect of such applications and any opposition
proceedings or petitions or applications for revocation of such letters patent,
copyright, trademark or other analogous protection.
(c) Executive’s
obligation to assist the Company in obtaining and enforcing patents, copyrights
and trademarks for the Inventions in any and all countries shall continue beyond
the Employment Term, provided that such assistance will not require an
unreasonable amount of Executive’s time. The Company agrees to compensate
Executive at a reasonable rate after the expiration of the Employment Term
for
time actually spent by Executive at the Company’s request in connection with
such assistance.
9. Injunction.
Executive agrees that his failure to perform the obligations provided by
Sections 5 and 6 of this Agreement will result in material irreparable injury
to
the Company for which there is no adequate remedy at law and that it will not
be
possible to measure damages for such injuries precisely. Accordingly, Executive
agrees that if he breaches, or proposes to breach, any portion of Sections
5 and
6 of this Agreement, the Company shall be entitled, in addition to all other
remedies that it may have and without the posting of a bond or other security,
to a temporary restraining order and/or an injunction, specific performance
or
other appropriate equitable relief to restrain any such breach without showing
or proving any actual damage to the Company.
10. Acknowledgment;
Enforceability.
Executive hereby acknowledges that the type and periods of restriction imposed
in the provisions of this Agreement are fair and reasonable and are reasonably
required for the protection of the Company’s Proprietary Information,
Confidential Information and the goodwill associated with the Company’s
business. Executive hereby further acknowledges that the provisions of this
Agreement shall be enforced to the fullest extent permissible under the laws
and
public policies applied in each jurisdiction in which enforcement is sought.
Accordingly, if any portion or provision of this Agreement is to any extent
declared illegal, invalid or unenforceable by a court of competent jurisdiction,
then this Agreement shall be deemed amended to modify or delete therefrom the
portion thus declared illegal, invalid or unenforceable, and the remainder
of
this Agreement, or the application of such portion or provision in circumstances
other than those as to which it is so declared illegal, invalid or
unenforceable, will not be affected thereby, and each portion and provision
of
this Agreement shall be valid and enforceable to the fullest extent permitted
by
law. In the event that any provision of this Agreement is determined by any
court of competent jurisdiction to be unenforceable by reason of excessive
scope, geographic area, or temporal or functional coverage, such provision
will
be deemed to extend only over the maximum scope, geographic area or temporal
and
functional coverage as to which it may be enforceable, and the court shall
revise the restriction contained in this Agreement to cover such maximum scope,
geographic area and temporal and functional coverage. Any provision of this
Agreement which is prohibited or unenforceable in any jurisdiction shall, as
to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or
render unenforceable such provision in any other jurisdiction.
11. Indemnification
of Executive.
(a) The
Company agrees that (i) if Executive is made a party, or is threatened to be
made a party, to any threatened or actual action, suit or proceeding, whether
civil, criminal, administrative, investigative, appellate or other (each, a
“Proceeding”)
by
reason of the fact that he is or was a director, officer, employee, agent,
manager, consultant or representative of the Company or is or was serving at
the
request of the Company as a director, officer, member, employee, agent, manager,
consultant or representative of another entity or (ii) if any claim,
demand, request, investigation, dispute, controversy, threat, discovery request
or request for testimony or information
(each, a
“Claim”)
is
made, or threatened to be made, that arises out of or relates to Executive’s
service in any of the foregoing capacities, then Executive shall promptly be
indemnified and held harmless by the Company to the fullest extent legally
permitted or authorized by the Company’s organization documents or resolutions
of Parent in its capacity as the sole member of the Company or, if greater,
by
the laws of the State of New York, against any and all costs, expenses,
liabilities and losses (including, without limitation, attorney’s fees,
judgments, interest, expenses of investigation, penalties, fines, ERISA excise
taxes or penalties and amounts paid or to be paid in settlement) incurred or
suffered by Executive in connection therewith, and such indemnification shall
continue as to Executive even if he has ceased to be a director, member,
employee, agent, manager, consultant or representative of the Company or other
entity and shall inure to the benefit of Executive’s heirs, executors and
administrators. The Company shall advance to Executive all costs and expenses
incurred by him in connection with any such Proceeding or Claim within
fifteen (15) days after receiving written notice requesting such an
advance. Such notice shall include, to the extent required by applicable law,
an
undertaking by Executive to repay the amount advanced if he is ultimately
determined by a court of competent jurisdiction not to be entitled to
indemnification against such costs and expenses.
(b) Neither
the failure of the Company (including independent legal counsel or Parent as
its
sole member) to have made a determination in connection with any request for
indemnification or advancement under Section 11(a) that Executive has
satisfied any applicable standard of conduct, nor a determination by the Company
(including independent legal counsel or Parent as its sole member) that
Executive has not met any applicable standard of conduct, shall create a
presumption that Executive has or has not met an applicable standard of
conduct.
12. Miscellaneous.
(a) Withholdings.
The
Company shall be entitled to deduct or withhold from any amounts owing from
the
Company to Executive any federal, state, local or foreign withholding taxes,
excise tax, or employment taxes (“Taxes”)
imposed with respect to Executive’s compensation or other payments from the
Company. In the event the Company does not make such deductions or withholdings
at the written request of Executive, Executive shall indemnify the Company
and
its Affiliates for any amounts paid with respect to any such Taxes, together
with any interest, penalties and related expenses thereto.
(b) Notices.
Any
notice, communication or request provided for in this Agreement shall be in
writing and shall be either personally delivered (with a written acknowledgement
of receipt), sent by facsimile (with receipt confirmation), sent by nationally
recognized overnight courier service (with a written acknowledgement of receipt
by the overnight courier) or mailed by certified or registered mail, return
receipt requested, to the Company at Xxx Xxxxxxxxxx Xxx Xxxx, Xxxxxxxxx, XX
00000, Facsimile: (000) 000-0000, or to Executive at the most recent address
of
Executive as set forth in the books and records of the Company, or in each
case
to such other address as shall be provided in writing to the other party. Any
notice, communication or request under this Agreement shall be deemed effective
upon personal delivery against receipt therefor; one (1) day after being
sent by overnight courier; or three (3) days after being mailed by
registered or certified mail, postage prepaid, and properly addressed to the
party to be notified.
(c) Entire
Agreement.
This
Agreement and those documents expressly referred to in this Agreement contain
the entire understanding between the parties concerning the subject matter
contained in this Agreement. There are no representations, agreements,
arrangements or understandings, oral or written, between the parties hereto,
relating to the subject matter of this Agreement, that are not fully expressed
in this Agreement or in those documents expressly referred to in this
Agreement.
(d) Successors
and Assigns; Assignment.
This
Agreement shall be binding upon and inure to the benefit of the beneficiaries,
heirs and representatives of Executive and the successors and assigns of the
Company. The rights and obligations of the Company under this Agreement shall
be
transferable to any successor thereto. Executive may not assign his rights
(except by will or the laws of descent and distribution) or delegate his duties
or obligations hereunder. Except as provided by this Section, this Agreement
is
not assignable by any party and no payment to be made hereunder shall be subject
to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance
or
other charge.
(e) Governing
Law.
This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of New York (without regard to such State’s conflict of laws
doctrines).
(f) Submission
to Jurisdiction.
Any and
all suits, legal actions or proceedings against any party hereto arising out
of
this Agreement shall be brought in any United States federal court sitting
in
the State of New York or any other court of appropriate jurisdiction sitting
in
the State of New York, as the party bringing such suit may elect in its sole
discretion, and each party hereby submits to and accepts the exclusive
jurisdiction of such courts for the purpose of such suit, legal action or
proceeding, each party hereto waives personal service of any summons, complaint
or other process and agrees that service thereof may be made by certified or
registered mail. Each party hereto hereby irrevocably waives any objection
which
it may now hereafter have to the laying of venue of such suit, legal action
or
proceeding in any such court and hereby further waives any claim that any such
suit, legal action or proceeding brought in any such court has been brought
in
an inconvenient forum.
(g) No
Waiver of Rights; Remedies Cumulative.
No
failure or delay on the part of any party in the exercise of any power or right
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such power or right preclude other or further exercise thereof
or of any other right or power. The waiver by any party or parties hereto of
a
breach of any provision of this Agreement shall not operate or be construed
as a
waiver of any other or subsequent breach hereunder. No remedy conferred upon
either party by this Agreement is intended to be exclusive of any other remedy,
and each and every such remedy shall be cumulative and shall be in addition
to
any other remedy given hereunder or now or hereafter existing at law or in
equity.
(h) Construction.
The
language used in this Agreement shall be deemed to be the language chosen by
the
parties hereto to express their mutual intent, and no rule of strict
construction shall be applied against any party. Whenever used in this
Agreement, the masculine or neuter gender shall include the masculine, feminine
or neuter gender. The headings of the Sections of this Agreement have been
inserted for purposes of convenience and shall not be used for interpretive
purposes.
(i) Amendments
and Waivers.
The
parties hereto may, by written agreement signed by the parties, modify any
of
the covenants or agreements or modify the time for the performance of any of
the
obligations contained in this Agreement or in any document delivered pursuant
to
this Agreement. Any party hereto may waive, by written instrument signed by
such
party, compliance by the other party, with any of the other party’s obligations
contained in this Agreement.
(j) Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed to be an original, but both of which together shall constitute one and
the same instrument.
(k) Executive
Acknowledgment.
Executive hereby acknowledges that he has reviewed this Agreement in its
entirety, has had an opportunity to obtain the advice of counsel prior to
executing this Agreement and fully understands all provisions of this Agreement.
(l) Survival
of Provisions.
Notwithstanding anything in this Agreement to the contrary, the following
provisions of this Agreement shall survive the termination of this
Agreement: Sections 4 through 12(a) - (i) and all other terms and
provisions of this Agreement that by their nature extend beyond the termination
of this Agreement.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the parties hereto have executed and delivered this Employment
Agreement as of the day and year first set forth above.
Gecko
Energy Technologies, LLC
By:
Millennium Cell Inc., its sole member
By: /s/
Xxxx X. Xxxxxx
Name:
Xxxx X. Xxxxxx
Title:
Chief Financial Officer
/s/
Xxxxxx X. Xxxxx
Xxxxxx
X. Xxxxx
EXHIBIT
A
RELEASE
In
consideration of the payments (the “Severance Payment”) to be paid to me in
accordance with Section 4(b) of my Employment Agreement with Gecko Energy
Technologies, LLC (the “Company”) dated December 29, 2006 (the “Agreement”), on
behalf of myself, and my heirs, executors, administrators, successors, and
assigns, I hereby fully and forever RELEASE and DISCHARGE Gecko Energy
Technologies, LLC, its affiliates and their respective officers, directors,
agents, employees, representatives, successors and assigns (hereinafter,
collectively called the “Company”), from any and all claims and causes of action
arising out of or relating in any way to my employment with the Company,
including, but not limited to, the offer of employment and termination of my
employment, and I agree that I will not in any manner institute, prosecute
or
pursue any complaints, claims, charges, liabilities, claims for relief, demands,
suits, actions or causes of action against the Company that are covered by
this
RELEASE.
Notwithstanding
the foregoing, expressly excluded from this RELEASE are any claims or causes
of
action which I may have (i) seeking enforcement of my rights under the
Agreement, including, without limitation, Section 4 thereof, or any other
plan, policy or arrangement of the Company, (ii) seeking to obtain contribution
as permitted by applicable law in the event of the entry of judgment against
me
as a result of any act or failure to act for which both I and the Company are
held to be jointly liable, (iii) arising out of or relating in any way to acts
or omissions after the date of this RELEASE or otherwise not covered by this
RELEASE, and (iv) which cannot be waived by applicable law. I shall also retain
the right to seek indemnification from the Company, to the extent permitted
under applicable law and Section 11 of the Agreement.
1.
I
understand and agree that, except as specifically provided above, this RELEASE
is a full and complete waiver of all claims relating to my employment with
the
Company, including, but not limited to, claims of wrongful discharge, breach
of
contract, breach of the covenant of good faith and fair dealing, violation
of
public policy, defamation, personal injury and emotional distress, claims under
Title VII of the Civil Rights Act of 1964, as amended, the Civil Rights Act
of
1991, the Age Discrimination in Employment Act of 1967, as amended by the Older
Workers Benefit Protection Act of 1990, the Americans With Disabilities Act,
the
Rehabilitation Act of 1973, as amended, the Equal Pay Act of 1963, Section
1981
of the Civil Rights Act of 1866, any of the New York State employment laws,
the
Fair Labor Standards Act of 1938, as amended, the Family and Medical Leave
Act
of 1993, and the Employee Retirement Income Security Act of 1974, as amended,
and claims arising from any legal restrictions on the Company’s right to
terminate employees (including, without limitation, claims arising under various
contract, tort, public policy or wrongful discharge theories under any federal,
state or local law, or under the federal Worker Adjustment and Retraining
Notification Act of 1988, as amended, or any similar state or local
law).
2.
I
understand that I have received or will receive, regardless of the execution
of
this RELEASE, the Accrued Obligations (as defined in Section 4(a) of the
Agreement). I further understand and agree that the Company will not pay me
the
Severance Payment unless I execute this RELEASE. In consideration of the
execution of this RELEASE, I will be entitled to receive the Severance Payment
in accordance with the applicable terms of Section 4 of the
Agreement.
3.
In
addition, and in further consideration of the foregoing, I acknowledge and
agree
that if I hereafter discover facts different from or in addition to those which
I now know or believe to be true that this RELEASE shall be and remain effective
in all respects notwithstanding such different or additional facts or the
discovery thereof. I understand that this RELEASE does not waive or release
any
rights or claims (i) that I may have under the Age Discrimination in
Employment Act of 1967, as amended, which arise after the date I sign this
RELEASE or (ii) arising out of any willful fraudulent act or omission of
the Company, whether occurring before or after the date I sign this RELEASE.
4.
As
part of my existing and continuing obligation to the Company, I have returned
or, within seven (7) days of my termination will return to the Company all
Confidential Information (as defined in Section 6(a) of the Agreement) in
accordance with the terms of the Agreement. I affirm my obligation to keep
all
Confidential Information confidential and not to use it or disclose it to any
third party as required by Section 6 of the Agreement.
5.
I
agree not to disclose, either directly or indirectly, any information whatsoever
regarding (i) any of the terms or the existence of this RELEASE and my
benefits under the Agreement or (ii) any other claim I may have against the
Company, to any person or entity, including but not limited to members of the
press and media, present and former employees of the Company, companies who
do
business with the Company, or other members of the public. Notwithstanding
the
preceding sentence, I may reveal such terms of this RELEASE and the Severance
Payment to my spouse, accountants or attorneys or as are necessary to comply
with a request made by the Internal Revenue Service, as otherwise compelled
by a
court or agency of competent jurisdiction, as allowed and/or required by
law.
6.
This
RELEASE shall be governed by the laws of the State of New York.
7.
This
RELEASE contains the entire agreement between the Company and me with respect
to
any matters referred to in the RELEASE and shall supersede any all other
agreements, whether written or oral, with respect to such matters. I understand
and agree that this RELEASE shall not be deemed or construed at any time as
an
admission of liability or wrongdoing by either myself or the Company.
Notwithstanding the foregoing, it is understood and agreed that my termination
will be treated for all purposes as a termination [without Cause/under Section
4(d)] under the Agreement and that I shall be entitled to all payments and
benefits under the Agreement consistent with such a termination.
8.
If any
one or more of the provisions contained in this RELEASE is, for any reason,
held
to be unenforceable, that holding will not affect any other provision of this
RELEASE, but, with respect only to the jurisdiction holding the provision to
be
unenforceable, this RELEASE shall then be construed as if such unenforceable
provision or provisions had never been contained in this RELEASE.
9.
Before
executing this RELEASE, I obtained sufficient information to intelligently
exercise my own judgment about the terms of the RELEASE. The Company has
informed me in writing to consult an attorney before signing this RELEASE,
if I
wish.
I
also
understand for a period of fifteen (15) days after I sign this RELEASE, I may
revoke this RELEASE and that the RELEASE will not become effective until fifteen
(15) days after I sign it, and only then if I do not revoke it. In order to
revoke this RELEASE, I must deliver, or cause to be delivered, to MCE Ventures,
LLC, Xxx Xxxxxxxxxx Xxx Xxxx, Xxxxxxxxx, XX 00000, Facsimile: (000) 000-0000,
by
First Class mail, overnight courier or facsimile, by no later than fifteen
(15)
days after I execute this RELEASE, a letter stating that I am revoking
it.
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10.
My
severance and other benefits under the Agreement will be paid in accordance
with
the terms of the Agreement. If I choose to revoke this RELEASE within fifteen
(15) days after I sign it, such benefits will not be due and payable, and the
RELEASE will have no effect.
11.
A
failure to comply with the terms of this RELEASE (except as set forth below),
including, but not limited to, my agreement not to institute, prosecute or
pursue any complaints, claims, charges, liabilities, claims for relief, demands
suits or causes of actions against the Company or a material and willful failure
to comply with the terms of Sections 4 and 5 of this RELEASE will, result in
my
forfeiture of the Severance Payment.
EMPLOYEE’S
ACCEPTANCE OF RELEASE
BEFORE
SIGNING MY NAME TO THIS RELEASE, I STATE THAT: I HAVE READ IT; I UNDERSTAND
IT
AND KNOW THAT I AM GIVING UP IMPORTANT RIGHTS; I AM AWARE OF MY RIGHT TO CONSULT
WITH AN ATTORNEY BEFORE SIGNING IT; AND I HAVE SIGNED IT KNOWINGLY AND
VOLUNTARILY. EXCEPT FOR THE MATTERS EXPRESSLY STATED IN THIS RELEASE, THE
COMPANY HAS NEITHER MADE ANY REPRESENTATION NOR OFFERED ME ANY INDUCEMENT TO
SIGN THIS RELEASE.
By:________________________________
Date:
December 29, 2006.
Agreed
to
and accepted:
Gecko
Energy Technologies, LLC
By:
Millennium Cell Inc., its sole member
By:________________________________
Name:
Title:
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