EMPLOYMENT AGREEMENT
Exhibit
10.1
Xxxxxxxxx
Employment Agreement
EMPLOYMENT
AGREEMENT, dated as of February 1, 2007 (this “Agreement”), between THORIUM
POWER, LTD., a Nevada corporation (the “Company”), and XXXX XXXXXXXXX, an
individual (the “Executive”).
BACKGROUND
The
Company wishes to secure the services of the Executive as the Chief Operating
Officer for the Company upon the terms and conditions hereinafter set forth,
and
the Executive wishes to render such services to the Company upon the terms
and
conditions hereinafter set forth.
AGREEMENT
NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants herein
contained and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto, intending
to be
legally bound, agree as follows:
1. Employment
by the Company. The Company agrees to employ the Executive in the position
of Chief Operating Officer for the Company and the Executive accepts such
employment. The Executives’ responsibilities as Chief Operating Officer will
include, but are not limited to, full
responsibility for profit and loss and responsibility for successfully
integrated affiliated companies, managing day-to-day operations globally,
executing a strategic plan to lead the Company to rapid growth, developing
relationships with key customers and strategic partners, and other duties
as
assigned. The Executive will report to the CEO. The
Executive agrees to perform the duties that may be assigned to him as well
as
other duties that are customarily performed in such a position(s) of a similar
company.
2. Term
of Employment. The term of this Employment Agreement (the “Term”) shall
commence on the date hereof and end when terminated by either party as provided
in Section 4 hereof (provided that the provisions of Sections 6 and 7 hereof
shall survive any such termination).
3. Compensation.
As full compensation for all services to be rendered by the Executive to
the
Company and/or its Subsidiaries and/or Affiliates in all capacities during
the
Term, the Executive shall receive the following compensation and
benefits:
3.1 Salary.
An
annual base salary of $200,000 (the “Base Salary”) payable not less frequently
than monthly or at more frequent intervals in accordance with the then customary
payroll practices of the Company. The Board of Directors of the Company shall
review the Executive’s performance on an annual basis and shall suggest
increases (but not decreases) to the Executive’s Base Salary as the Board of
Directors of the Company in its sole discretion deems appropriate.
3.2 Bonus.
The
Executive will be eligible to receive an annual bonus of up to 50% of Base
Salary. Whether a bonus is granted, and the amount of such bonus, lies within
the sole discretion of the Board of Directors, which will consider, among
other
things, the Executive meeting his individual performance goals and the Company
meeting its corporate profit goals. The bonus, if any, will not be distributed
until after the audited results for the fiscal year are reported and is not
deemed to be earned until paid. The Executive must be employed by the Company
on
the day a bonus is actually paid to be eligible to receive it.
3.3 Equity
Participation.
|
a)
|
The
Company shall, upon effective date of this Agreement, grant to
the
Executive one million (1,000,000) shares of the Company’s Common Stock.
The 1,000,000 shares shall vest in accordance with the provisions
of a
separate Stock Agreement which shall be entered into between the
Executive
and the Company on or about the date hereof and which shall provide
for
vesting in equal monthly installments over a three year term
(1/36th
of
the grant vesting each month) with accelerated vesting upon (i)
a Change
of Control (as defined below), (ii) termination of the Executive
by the
Company without Cause (as defined below), or (iii) the cessation
of the
Executive’s employment with the Company for Good Reason (as defined
below). No
portion of the stock or rights granted hereunder may be sold, transferred,
assigned, pledged or otherwise encumbered or disposed of by the
Executive
until such portion of the stock becomes vested. With
respect to vested shares, the Executive shall not have any right
to
receive a cash out or liquidation of such shares from the Company,
unless
specifically agreed to in writing by the Company, in its sole
discretion.
|
|
b)
|
The
Executive shall be eligible to participate in the Company’s 2007 Stock
Plan (the “Plan”). The Executive shall, upon effective date of this
Agreement, be granted options to acquire 1,000,000 shares of Common
Stock,
$0.001 par value, of the Company pursuant to the Plan. Such options
shall
vest and become exercisable in accordance with the provisions of
a
separate Stock Option Agreement which shall be entered into between
the
Executive and the Company on or about the date hereof and which
shall
provide (a) that the options are intended to be nonqualified stock
options, (b) an exercise price equal to the fair market value of
the
Company’s Common Stock on the date of grant, (c) for vesting in equal
monthly installments over a four year term beginning on the six
month
anniversary of the date of grant (provided that 6/48 of the option
will
vest on such six month anniversary) with accelerated vesting upon
(i) a
Change of Control (as defined below), (ii) termination of the Executive
by
the Company without Cause (as defined below), or (iii) the cessation
of
the Executive’s employment with the Company for Good Reason (as defined
below), and (d) for a ten year term. With
respect to vested options, the Executive shall not have any right
to
receive a cash-out or liquidation of such options from the Company,
unless
specifically agreed to in writing by the Company, in its sole
discretion.
|
3.4 Participation
in Employee Benefit Plans; Other Benefits.
The
Executive shall be permitted during the Term to participate in all employee
benefit plans, policies and practices now or hereafter maintained by or on
behalf of the Company commensurate with the Executive’s position with the
Company. Such benefit plans may include a group health and dental program,
group
life insurance, short and long term disability insurance, and 401(k) plan.
The
Executive shall receive paid vacation (4 weeks accrued pro rata on a per
pay
period basis), paid sick leave (6 paid days per year accruing on a pro rata
basis on the first day of each quarter - January 1, April 1, July 1, and
October
1), paid holidays and, upon request and when required by applicable laws
or with
the consent of the CEO, unpaid leave. The Company reserves the right in its
sole
discretion from time to time to modify, add or delete any such plans or
programs, and any decisions by the Company to do so shall not create any
right
of compensation for the Executive..
2
3.5 Vacation.
The
Executive shall be entitled to four (4) weeks of paid vacation time per year
which shall accrue per pay period on a pro-rata basis.
3.6 Expenses.
The
Company shall pay or reimburse the Executive for all reasonable and necessary
business expenses actually incurred or paid by the Executive during the Term
in
the performance of the Executive’s duties under this Agreement, upon submission
and approval of expense statements, vouchers or other supporting information
in
accordance with the then customary practices of the Company. However, for
avoidance of doubt, the Executive shall not be entitled to reimbursement
for any
attorney fees or costs associated with obtaining independent legal advice
or
assistance related to the review, evaluation, interpretation or enforcement
of
this agreement, except for the reimbursement of any expenses incurred in
establishing a right to indemnification under this Agreement.
3.7 Withholding
of Taxes.
The
Company may withhold from any benefits payable under this Agreement all federal,
state, city and other taxes as shall be required pursuant to any law or
governmental regulation or ruling.
4. Termination.
4.1 Termination
upon Death.
If the
Executive dies during the Term, this Agreement shall terminate as of the
date of
his death.
4.2 Termination
upon Disability.
If
during the Term the Executive becomes physically or mentally disabled, whether
totally or partially, so that the Executive is unable to perform his essential
job functions hereunder for a period aggregating 180 days during any
twelve-month period, and it is determined by a physician acceptable to both
the
Company and the Executive that, by reason of such physical or mental disability,
the Executive shall be unable to perform the essential job functions required
of
him hereunder for such period or periods, the Company may, by written notice
to
the Executive, terminate this Agreement, in which event the Term shall terminate
10 days after the date upon which the Company shall have given notice to
the
Executive of its intention to terminate this Agreement because of the
disability.
4.3 Termination
for Cause.
The
Company may at any time by written notice to the Executive terminate this
Agreement immediately and, except as provided in Section 5.2 hereof, the
Executive shall have no right to receive any compensation or benefit hereunder
on and after the date of such notice, in the event that an event of “Cause”
occurs. For purposes of this Agreement “Cause” shall mean (a) conviction of a
felony, bad faith or willful gross misconduct that, in any case, results
in
material damage to the business or reputation of the Company; or (b) willful
and
continued failure to perform his duties hereunder (other than such failure
resulting from the Executive’s incapacity due to physical or mental illness or
after the issuance of a notice of termination by the Executive for Good Reason)
within 30 days after the Company delivers to him a written demand for
performance that specifically identifies the actions to be performed. For
purposes of this Section 4.3, no act or failure to act by the Executive shall
be
considered “willful” if such act is done by the Executive in the good faith
belief that such act is or was to be beneficial to the Company or one or
more of
its businesses, or such failure to act is due to the Executive’s good faith
belief that such action would be materially harmful to the Company or one
of its
businesses. Cause shall not exist unless and until the Company has delivered
to
the Executive a copy of a resolution duly adopted by the board of directors
at a
meeting of the board of directors of the Company called and held for such
purpose after reasonable (but in no event less than thirty days’) notice to the
Executive and an opportunity for the Executive, together with his counsel,
to be
heard before the board, finding that in the good faith opinion of the board
that
“Cause” exists and specifying the particulars thereof in detail. This Section
4.3 shall not prevent the Executive from challenging in any court of competent
jurisdiction the board of directors’ determination that Cause exists or that the
Executive has failed to cure any act (or failure to act) that purportedly
formed
the basis for the board of directors’ determination.
3
4.4 Termination
without Cause.
The
Company may terminate this Employment Agreement at any time, without cause,
upon
30 days’ written notice by the Company to the Executive.
4.5 Termination
for Good Reason.
The
Executive may terminate his employment for Good Reason after giving the Company
detailed written notice thereof, if the Company shall have failed to cure
the
event or circumstance constituting Good Reason within 30 business days after
receiving such notice. “Good Reason” shall mean the occurrence of any of the
following without the written consent of the Executive: (a) the assignment
to
the Executive of duties inconsistent with this Agreement or a diminution
in his
titles or authority; (b) any failure by the Company to comply with Section
3
hereof in any material way; (c) the requirement of the Executive to relocate
to
a location that is more than 50 miles from the Executive’s work location on the
effective date of this Agreement (0000 Xxxxxxxxxx Xxxxx, Xxxxx 000, XxXxxx,
XX
22102), (d) any material breach of this Agreement by the Company, or (e)
a
“Change of Control”. For purposes of this Agreement, a “Change of Control” shall
be deemed to have occurred if (i) a tender offer shall be made and consummated
for the ownership of more than 50% of the outstanding voting securities of
the
Company, (ii) the Company shall be merged or consolidated with another
corporation or entity and as a result of such merger or consolidation less
than
50% of the outstanding voting securities of the surviving or resulting
corporation or entity shall be owned in the aggregate by former shareholders
of
the Company, as the same shall have existing immediately prior to such merger
or
consolidation, (iii) the Company shall sell, lease, or otherwise dispose
of, all
or substantially all of its assets to another corporation or entity which
is not
a wholly-owned subsidiary, or (iv) a person, within the meaning of Section
3(a)(9) or Section 13(d)(3) (as in effect on the date hereof) of the Securities
Exchange Act of 1934 shall acquire more than 50% of the outstanding voting
securities of the Company (whether directly, indirectly, beneficially, or
of
record). The Executive’s right to terminate his employment hereunder for Good
Reason shall not be affected by his incapacity due to physical or mental
illness. The Executive’s continued employment shall not constitute consent to,
or a waiver of rights with respect to, any act or failure to act constituting
Good Reason.
4
4.6 Without
Good Reason.
The
Executive shall have the right to terminate his employment hereunder without
Good Reason by providing the Company with 30 days advance written notice
of
termination.
5. Severance
Payments
5.1 Certain
Severance Payments.
If
during the Term this Agreement is terminated pursuant to any of Sections
4.1,
4.2, 4.4 or 4.5, all compensation payable to the Executive under Section
3
hereof shall cease as of the date of termination specified in the Company’s
notice (the “Termination Date”), and the Company shall pay to the Executive,
subject to Section 6 hereof, the following sums: (i) during the first year
of
employment, the Base Salary on the Termination Date for nine (9) months (the
“Severance Period”), payable in installments in accordance with the Company’s
normal payroll practices; after the first year of employment, the severance
payments shall be the Base Salary on the Termination Date for twelve (12)
months, payable in installments in accordance with the Company’s normal payroll
practices; (ii) benefits under group health, dental and life insurance plans
and
such other plans referred to in Section 3.2 that the Executive has participated
in and may continue to participate in as a non-employee through the Severance
Period; and (iii) all previously earned, accrued, and unpaid benefits from
the
Company and its employee benefit plans, including any such benefits under
the
Company’s pension, disability, and life insurance plans, policies, and programs
in which the Executive has participated. If, prior to the date on which the
Company’s obligations under clause (i) of this Section 5.1 cease, the Executive
violates Section 6 hereof, then the Company shall have no obligation to make
any
of the payments that remain payable by the Company under clauses (i) and
(ii) of
this Section 5.1 on or after the date of such violation.
Notwithstanding
the foregoing, if, based on Internal Revenue Service guidance available as
of
the date the payment or provision of any amount or other benefit is specified
to
be made under this Agreement or elsewhere, the Company reasonably determines
that the payment or provision of such amount or other benefit at such specified
time may potentially subject the Executive to “additional tax” under Section
409A(a)(1)(B) of the Code (together with any interest or penalties imposed
with
respect to, or in connection with, such tax, a “409A Tax”) with respect to the
payment of such amount or the provision of such benefit, and if payment or
provision thereof at a later date would likely avoid any such 409A Tax, then
the
payment or provision thereof shall be postponed to the earliest business
day on
which the Company reasonably determines such amount or benefit can be paid
or
provided without incurring any such 409A Tax, but in no event later than
the
first business day after the six-month anniversary of the Executive’s
termination date (the “Delayed Payment Date”). In addition, if the Company
reasonably determines that such 409A Tax with respect to the provision of
a
benefit can likely be avoided by replacing the benefit with the payment of
an
amount in cash equal to the cost of a substantially equivalent benefit then,
in
lieu of providing such benefit, the Company may make such cash payment, subject
to the preceding sentence. The Company and the Executive may agree to take
other
actions to avoid the imposition of such 409A Tax at such time and in such
manner
as permitted under Section 409A. In the event that a delay of any payment
is
required under this provision, such payment shall be accumulated and paid
in a
single lump sum on the Delayed Payment Date together with interest for the
period of delay, compounded monthly, equal to the prime or base lending rate
then used by CitiBank, N.A., in New York City and in effect as of the date
the
payment would otherwise have been provided.
5
5.2 Payments
upon Termination for Cause or Termination without Good Reason.
If this
Employment Agreement is terminated by the Company pursuant to Section 4.3
hereof
or by the Executive pursuant to Section 4.6 hereof, the Executive shall receive
only the amounts specified in clause (iii) of Section 5.1 hereof.
5.3 Release.
Executive agrees, if his employment is terminated under circumstances entitling
him to any payments under Section 5.1 of this Agreement, that in consideration
for such payments as described in Section 5.1, he will execute a General
Release
in substantially the form of Exhibit A attached hereto, through which Executive
releases the Company from any and all claims as may relate to or arise out
of
his employment relationship or the termination thereof (excluding claims
Executive may have under any “employee pension plan” as described in Section
3(3) of ERISA or under this Agreement, and rights Executive may be entitled
to
under surviving Sections 6 and 7 hereof). The form of the Release may be
modified as needed to reflect changes in the applicable law or regulations
that
are needed to provide a legally enforceable and binding Release to the Company
at the time of execution.
6. Certain
Covenants of the Executive.
6.1 Covenants.
The
Executive acknowledges that: (i) his work for the Company and its Subsidiaries
and Affiliates, will bring him into close contact with many confidential
affairs, documents, and information not readily available to the public;
and
(ii) the covenants contained in this Section 6 will not involve a substantial
hardship upon his future livelihood. In order to induce the Company to enter
into this Employment Agreement, the Executive covenants and agrees
that:
6.2 Non-Compete.
During
the Term and for a period of twelve (12) months following the termination
of the
Executive’s
employment with the Company or any of its Subsidiaries or Affiliates (the
“Restricted Period”), the Executive shall not, directly or indirectly, (i) in
any manner whatsoever engage in any capacity with any business competitive
with
the Company, any of its Subsidiaries or any of its Affiliates (the “Company’s
Business”) for the Executive’s own benefit or for the benefit of any person or
entity other than the Company or any Subsidiary or Affiliate; or (ii) have
any
interest as owner, sole proprietor, shareholder, partner, lender, director,
officer, manager, employee, consultant, agent or otherwise in any business
competitive with the Company’s Business; provided,
however,
that
the Executive may hold, directly or indirectly, solely as an investment,
not
more than two percent (2%) of the outstanding securities of any person or
entity
which are listed on any national securities exchange or regularly traded
in the
over-the-counter market notwithstanding the fact that such person or entity
is
engaged in a business competitive with the Company’s Business. In addition,
during the Restricted Period, the Executive shall not develop any property
or
invention for use in the Company’s Business on behalf of any person or entity
other than the Company, its Subsidiaries and Affiliates.
6.3 Confidential
Information.
During
the Restricted Period, the Executive shall not, directly or indirectly, disclose
to any person or entity who is not authorized by the Company or any Subsidiary
or Affiliate to receive such information, or use or appropriate for his own
benefit or for the benefit of any person or entity other than the Company
or any
Subsidiary or Affiliate, any documents or other papers relating to the Company’s
Business or the customers of the Company or any Subsidiary or Affiliate,
including, without limitation, files, business relationships and accounts,
pricing policies, customer lists, computer software and hardware, or any
other
materials relating to the Company’s Business or the customers of the Company or
any Subsidiary or Affiliate or any trade secrets or confidential information,
including, without limitation, any business or operational methods, drawings,
sketches, designs or product concepts, know-how, marketing plans or strategies,
product development techniques or plans, business acquisition plans, financial
or other performance data, personnel and other policies of the Company or
any
Subsidiary or Affiliate, whether generated by the Executive or by any other
person, except as required in the course of performing his duties hereunder
or
with the express written consent of the Company; provided,
however,
that
the confidential information shall not include any information readily
ascertainable from public or published information, or trade sources (other
than
as a direct or indirect result of unauthorized disclosure by the
Executive).
6
6.4 Employees
of and Consultants to the Company.
During
the Restricted Period, the Executive shall not, directly or indirectly (other
than in furtherance of the business of the Company), initiate communications
with, solicit, persuade, entice, induce or encourage any individual who is
then
or who has been within the 12-month period preceding the Executive’s termination
of employment with the Company, an employee of or consultant to the Company
or
any of its Subsidiaries or Affiliates to terminate employment with, or a
consulting relationship with, the Company or such Subsidiary or Affiliate,
as
the case may be, or to become employed by or enter into a contract or other
agreement with any other person, and the Executive shall not approach any
such
employee or consultant for any such purpose or authorize or knowingly approve
the taking of any such actions by any other person.
6.5 Solicitation
of Customers.
During
the Restricted Period, the Executive shall not, directly or indirectly, initiate
communications with, solicit, persuade, entice, induce, encourage (or assist
in
connection with any of the foregoing) any person within the Washington DC
Metropolitan Area who is then or has been within the 12-month period preceding
the Executive’s termination of employment with the Company a customer or account
of the Company or its Subsidiaries or Affiliates, or any actual customer
leads
whose identity the Executive learned during the course of his employment
with
the Company, to terminate or to adversely alter its contractual or other
relationship with the Company or its Subsidiaries or Affiliates.
6.6 Rights
and Remedies Upon Breach.
If the
Executive breaches, or threatens to commit a breach of, any of the provisions
of
Section 6 hereof (collectively, the “Restrictive Covenants”), the Company and
its Subsidiaries and Affiliates shall, in addition to the rights set forth
in
this Employment Agreement, have the right and remedy to seek from any court
of
competent jurisdiction specific performance of the Restrictive Covenants
or
injunctive relief against any act which would violate any of the Restrictive
Covenants, it being acknowledged and agreed that any such breach or threatened
breach will cause irreparable injury to the Company and its Subsidiaries
and
Affiliates and that money damages will not provide an adequate remedy to
the
Company and its Subsidiaries and Affiliates.
7
6.7 Severability
of Covenants.
If any
of the Restrictive Covenants, or any part thereof, is held by a court of
competent jurisdiction or any foreign, federal, state, county or local
government or other governmental, regulatory or administrative agency or
authority to be invalid, void, unenforceable or against public policy for
any
reason, the remainder of the Restrictive Covenants shall remain in full force
and effect and shall in no way be affected, impaired or invalidated, and
such
court, government, agency or authority shall be empowered to substitute,
to the
extent enforceable, provisions similar thereto or other provisions so as
to
provide to the Company and its Subsidiaries and Affiliates, to the fullest
extent permitted by applicable law, the benefits intended by such
provisions.
6.8 Enforceability
in Jurisdictions.
The
parties intend to and hereby confer jurisdiction to enforce the Restrictive
Covenants upon the courts of any jurisdiction within the geographical scope
of
such Covenants. If the courts of any one or more of such jurisdictions hold
the
Restrictive Covenants wholly invalid or unenforceable by reason of the breadth
of such scope or otherwise, it is the intention of the parties that such
determination not bar or in any way affect the Company’s right to the relief
provided above in the courts of any other jurisdiction within the geographical
scope of such Restrictive Covenants, as to breaches of such Restrictive
Covenants in such other respective jurisdictions, such Restrictive Covenants
as
they relate to each jurisdiction being, for this purpose, severable into
diverse
and independent covenants.
7. Indemnification.
7.1 General.
The
Company agrees that if the Executive is made a party or is threatened to
be made
a party to any action, suit or proceeding, whether civil, criminal,
administrative or investigative (a “Proceeding”), other than a Proceeding
initiated by the Company or the Executive to enforce their rights under this
Agreement, by reason of the fact that the Executive is or was a trustee,
director or officer of the Company, or any predecessor to the Company or
any of
their Affiliates or is or was serving at the request of the Company, any
predecessor to the Company, or any of their affiliates as a trustee, director,
officer, member, employee or agent of another corporation or a partnership,
joint venture, limited liability company, trust or other enterprise, including,
without limitation, service with respect to employee benefit plans, whether
or
not the basis of such Proceeding is alleged action in an official capacity
as a
trustee, director, officer, member, employee or agent while serving as a
trustee, director, officer, member, employee or agent, the Executive shall
be
indemnified and held harmless by the Company to the fullest extent authorized
by
Nevada law, as the same exists or may hereafter be amended, against all Expenses
incurred or suffered by the Executive in connection therewith, and such
indemnification shall continue as to the Executive even if the Executive
has
ceased to be an officer, director, trustee or agent, or is no longer employed
by
the Company and shall inure to the benefit of his heirs, executors and
administrators. Notwithstanding the foregoing, the Executive shall not be
entitled to indemnification by the Company in respect of, and to the extent
that, any Expenses arising as a result of the bad faith, willful misconduct
or
gross negligence of the Executive, or the Executive’s conviction of a felony.
7.2 Expenses.
As used
in this Agreement, and except as otherwise specifically excluded or made
inapplicable herein, the term “Expenses” shall include, without limitation,
damages, losses, judgments, liabilities, fines, penalties, excise taxes,
settlements, and costs, attorneys’ fees, accountants’ fees, and disbursements
and costs of attachment or similar bonds, investigations, and any expenses
of
establishing a right to indemnification under this Agreement.
8
7.3 Enforcement.
If a
claim or request under this Section 7 is not paid by the Company or on its
behalf, within thirty (30) days after a written claim or request has been
received by the Company, the Executive may at any time thereafter bring suit
against the Company to recover the unpaid amount of the claim or request and if
successful in whole or in part, the Executive shall be entitled to be paid
also
the expenses of prosecuting such suit. All obligations for indemnification
hereunder shall be subject to, and paid in accordance with, applicable
Nevada law.
7.4 Partial
Indemnification.
If the
Executive is entitled under any provision of this Agreement to indemnification
by the Company for some or a portion of any Expenses, but not, however, for
the
total amount thereof, the Company shall nevertheless indemnify the Executive
for
the portion of such Expenses to which the Executive is entitled.
7.5 Advances
of Expenses.
Expenses incurred by the Executive in connection with any Proceeding shall
be
paid by the Company in advance upon written request of the Executive that
the
Company pay such Expenses, but only in the event that the Executive shall
have
delivered in writing to the Company (i) an undertaking to reimburse the Company
for Expenses with respect to which the Executive is not entitled to
indemnification and (ii) a statement of his good faith belief that the standard
of conduct necessary for indemnification by the Company has been
met.
7.6 Notice
of Claim.
The
Executive shall promptly give to the Company notice of any claim made against
him for which indemnification will or could be sought under this Agreement.
In
addition, the Executive shall give the Company such information and cooperation
as it may reasonably require and as shall be within the Executive’s power and at
such times and places as are convenient for the Executive.
7.7 Defense
of Claim.
With
respect to any Proceeding as to which the Executive notifies the Company
of the
commencement thereof:
(a) The
Company will be entitled to participate therein at its own expense;
(b) Except
as
otherwise provided below, to the extent that it may wish, the Company will
be
entitled to assume the defense thereof, with counsel reasonably satisfactory
to
the Executive, which in the Company’s sole discretion may be regular counsel to
the Company and may be counsel to other officers and directors of the Company
or
any subsidiary. The Executive also shall have the right to employ his own
counsel in such action, suit or proceeding if he reasonably concludes that
failure to do so would involve a conflict of interest between the Company
and
the Executive, and under such circumstances the fees and expenses of such
counsel shall be at the expense of the Company.
(c) The
Company shall not be liable to indemnify the Executive under this Agreement
for
any amounts paid in settlement of any action or claim effected without its
written consent. The Company shall not settle any action or claim in any
manner
which would impose any penalty that would not be paid directly or indirectly
by
the Company or limitation on the Executive without the Executive’s written
consent. Neither the Company nor the Executive will unreasonably withhold
or
delay their consent to any proposed settlement.
9
(d) Non-exclusivity.
The
right to indemnification and the payment of expenses incurred in defending
a
Proceeding in advance of its final disposition conferred in this Section
7 shall
not be exclusive of any other right which the Executive may have or hereafter
may acquire under any statute or certificate of incorporation or by-laws
of the
Company or any subsidiary, agreement, vote of shareholders or disinterested
directors or trustees or otherwise.
8. Other
Provisions.
8.1 Notices.
Any
notice or other communication required or which may be given hereunder shall
be
in writing and shall be delivered personally, telecopied, telegraphed or
telexed, or sent by certified, registered or express mail, postage prepaid,
to
the parties at the addresses specified on the signature page hereto, or at
such
other addresses as shall be specified by the parties by like notice, and
shall
be deemed given when so delivered personally, telecopied, telegraphed or
telexed, or if mailed, two days after the date of mailing, to the addresses
specified on the signature page hereto, or, in the case of the Company, to
such
other address as the Company may specify as the address for its executive
offices in any reports filed by the Company with the Securities and Exchange
Commission.
8.2 Entire
Agreement.
This
Agreement contains the entire agreement between the parties with respect
to the
subject matter hereof and supersedes all prior contracts and other agreements,
written or oral, with respect thereto.
8.3 Waivers
and Amendments.
This
Agreement may be amended, modified, superseded, cancelled, renewed or extended,
and the terms and conditions hereof may be waived, only by a written instrument
signed by the parties or, in the case of a waiver, by the party waiving
compliance. No delay on the part of any party in exercising any right, power
or
privilege hereunder shall operate as a waiver thereof, nor shall any waiver
on
the part of any party of any right, power or privilege hereunder, nor any
single
or partial exercise of any right, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, power
or
privilege hereunder.
8.4 Governing
Law.
This
Agreement shall be governed by, and construed in accordance with and subject
to,
the laws of the State of Nevada applicable to agreements made and to be
performed entirely within such state.
8.5 Binding
Effect; Benefit.
This
Agreement shall inure to the benefit of and be binding upon the parties hereto
and any successors and assigns permitted or required by Section 8.6 hereof.
Nothing in this Agreement, expressed or implied, is intended to confer on
any
person other than the parties hereto or such successors and assigns, any
rights,
remedies, obligations or liabilities under or by reason of this
Agreement.
10
8.6 Assignment.
This
Agreement, and the Executive’s rights and obligations hereunder, may not be
assigned by the Executive. The Company may assign this Agreement and its
rights,
together with its obligations, hereunder in connection with any sale, transfer
or other disposition of all or substantially all of its assets or business,
whether by merger, consolidation or otherwise.
8.7 Definitions.
For
purposes of this Agreement:
(a) “Affiliate”
shall
mean a person that, directly or indirectly, controls or is controlled by,
or is
under common control with the Company:
(b) ;“Control”
(including, with correlative meaning, the terms “controlled by” and “under
common control with”) as used with respect to any person or entity, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management;
(c) “Subsidiary”
shall
mean any person or entity as to which the Company, directly or indirectly,
owns
or has the power to vote, or to exercise a controlling influence with respect
to, fifty percent (50%) or more of the securities of any class of such person,
the holders of which class are entitled to vote for the election of directors
(or persons performing similar functions) of such person.
8.8 D&O
Insurance.
During
the term of this Agreement, the Company shall maintain customary Director’s
&Officer’s liability insurance with the level of coverage of at least $5
million. As Chief Operating Officer, Executive shall be covered under this
policy to the maximum extent as determined by the insurer or a court of
law.
8.9 Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original but all of which together shall constitute one and the
same
instrument.
8.10 Headings.
The
headings in this Agreement are for reference purposes only and shall not
in any
way affect the meaning or interpretation of this Employment
Agreement.
[Continued
on next page]
11
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date
first
above written.
| Thorium Power, LTD. | ||
| |
|
|
| By: | /s/ Seth Grae | |
|
Seth Grae |
||
| Chief Executive Officer | ||
|
Address: 0000
Xxxxxxxxxx Xxxxx, Xxxxx 000
XxXxxx,
XX 00000
|
||
| EXECUTIVE: | ||
| |
|
|
| By: | /s/ Xxxx Xxxxxxxxx | |
|
Xxxx Xxxxxxxxx |
||
|
Address: 0000
00xx
Xxxxxx, XX
Xxxxxxxxxx,
XX 00000
|
||
12
EXHIBIT
A
NOTICE.
Various laws, including Title VII of the Civil Rights Act of 1964, the Civil
Rights Act of 1866, the Pregnancy Discrimination Act of 1978, the Equal Pay
Act,
the Civil Rights Act of 1991, the Age Discrimination in Employment Act, the
Rehabilitation Act of 1973, the Americans With Disabilities Act, the Employee
Retirement Income Security Act and the Uniformed Services Employment and
Reemployment Rights Act (all as amended from time to time), prohibit employment
discrimination based on sex, race, color, national origin, religion, age,
disability, eligibility for covered employee benefits and veteran status.
You
may also have rights under laws such as the Older Worker Benefit Protection
Act
of 1990, the Worker Adjustment and Retraining Act of 1988, the Fair Labor
Standards Act, the Family and Medical Leave Act, the Occupational Health
and
Safety Act and other federal, state and/or municipal statutes, orders or
regulations pertaining to labor, employment and/or employee benefits. These
laws
are enforced through the United States Department of Labor and its agencies,
including the Equal Employment Opportunity Commission (EEOC), and various
state
and municipal labor departments, fair employment boards, human rights
commissions and similar agencies.
This
General Release is being provided to you in connection with the Employment
Agreement between you and Thorium Power dated February 1, 2007 (the
“Agreement”). The federal Older Worker Benefit Protection Act requires that you
have at least twenty-one (21) days, if you want it, to consider whether you
wish
to sign a release such as this one in connection with a special, individualized
severance package. You have until the close of business twenty-one (21) days
from the date you receive this General Release to make your decision. You
may
not sign this General Release until, at the earliest, your official date
of
separation from employment, _________________.
BEFORE
EXECUTING THIS GENERAL RELEASE YOU SHOULD REVIEW THESE DOCUMENTS CAREFULLY
AND
CONSULT WITH YOUR ATTORNEY.
You
may
revoke this General Release within seven (7) days after you sign it and it
shall
not become effective or enforceable until that revocation period has expired.
If
you do not accept the severance package and sign and return this General
Release, or if you exercise your right to revoke the General Release after
signing it, you will not be eligible for the special, individualized severance
package. Any revocation must be in writing and must be received by Thorium
Power
Attention: Seth Grae, 0000 Xxxxxxxxxx Xxxxx, Xxxxx 000, XxXxxx, XX 00000,
within
the seven-day period following your execution of this General
Release.
______________________________________________________________________________
13
GENERAL
RELEASE
In
consideration of the special, individualized severance package offered to
me by
Thorium Power, Ltd. and the separation benefits I will receive as reflected
in
the Employment Agreement between me and Thorium Power, Ltd, dated February
1,
2007 (the “Agreement”), I hereby release and discharge Thorium Power, Ltd. and
its predecessors, successors, affiliates, parent, subsidiaries and partners
and
each of those entities’ employees, officers, directors and agents (hereafter
collectively referred to as the “Company”) from all claims, liabilities,
demands, and causes of action, known or unknown, fixed or contingent, which
I
may have or claim to have against the Company either as a result of my past
employment with the Company and/or the severance of that relationship and/or
otherwise, and hereby waive any and all rights I may have with respect to
any
such claims.
This
General Release includes, but is not limited to, claims arising under Title
VII
of the Civil Rights Act of 1964, the Civil Rights Act of 1866, the Pregnancy
Discrimination Act of 1978, the Equal Pay Act, the Civil Rights Act of 1991,
the
Age Discrimination in Employment Act, the Rehabilitation Act of 1973, the
Americans With Disabilities Act, the Employee Retirement Income Security
Act or
1974 and the Uniformed Services Employment and Reemployment Rights Act (all
as
amended from time to time). This General Release also includes, but is not
limited to, any rights I may have under the Older Workers Benefit Protection
Act
of 1990, the Worker Adjustment and Retraining Act of 1988, the Fair Labor
Standards Act, the Family and Medical Leave Act, the Occupational Health
and
Safety Act and any other federal, state and/or municipal statutes, orders
or
regulations pertaining to labor, employment, wages, and/or employee benefits.
This General Release also applies to any claims or rights I may have growing
out
of any legal or equitable restrictions on the Company’s rights not to continue
an employment relationship with its employees, including any express or implied
employment contracts, and to any claims I may have against the Company for
fraudulent inducement or misrepresentation, defamation, wrongful termination
or
other retaliation claims in connection with workers’ compensation or alleged
“whistleblower” status or on any other basis whatsoever.
It
is
specifically agreed, however, that this General Release does not have any
effect
on any rights or claims I may have against the Company which arise after
the
date I execute this General Release or on any vested rights I may have under
any
of the Company’s qualified or non-qualified benefit plans or arrangements as of
or after my last day of employment with the Company, or on any of the Company’s
obligations under the Agreement or as otherwise required under the Consolidated
Omnibus Budget and Reconciliation Act of 1985 (COBRA). It is further agreed
that
this General Release shall not bar any claims Executive may have under those
provisions of Sections 7 of his Employment Agreement that survive the
termination of such Employment Agreement.
I
have
carefully reviewed and fully understand all the provisions of the Agreement
and
General Release, including the foregoing Notice. I have not relied on any
representation or statement, oral or written, by the Company or any of its
representatives, which is not set forth in those documents.
The
Agreement and this General Release, including the foregoing Notice, set forth
the entire agreement between me and the Company with respect to this subject.
I
understand that my receipt and retention of the separation benefits covered
by
the Agreement are contingent not only on my execution of this General Release,
but also on my continued compliance with my other obligations under the
Agreement. I acknowledge that the Company gave me twenty-one (21) days to
consider whether I wish to accept or reject the separation benefits I am
eligible to receive under the Agreement in exchange for this General Release.
I
also acknowledge that the Company advised me to seek independent legal advice
as
to these matters, if I chose to do so. I hereby represent and state that
I have
taken such actions and obtained such information and independent legal or
other
advice, if any, that I believed were necessary for me to fully understand
the
effects and consequences of the Agreement and General Release prior to signing
those documents.
| Dated this ___ day of __________, ____. | |||
|
Xxxx Xxxxxxxxx |
|||
-2-
