Employment Agreement
Exhibit 10.21
This employment
agreement (“Agreement”), executed as of April 30, 2008 (“Effective Date”), by
and between Kreido Biofuels, Inc., a Nevada corporation located at 0000 Xxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxx 00000 and Kreido’s wholly-owned subsidiary, Kreido Laboratories (collectively “Kreido”
or the “Company”) and Xxxx X. Xxxxxxxx, an individual (“Executive”).
Recitals
Whereas Executive currently is employed as Company’s Chief Financial Officer; and
Whereas Kreido wishes to continue to employ Executive as its Chief Financial Officer on an
ongoing basis and Executive wishes to be so employed;
Now, therefore, in consideration of good and valuable consideration, the sufficiency of which
is hereby acknowledged, the parties agree as follows:
Terms and Conditions
| 1. | Executive’s Duties; Title; Location. As of the Effective Date, Executive is employed as
Kreido’s Chief Financial Officer (“CFO”) under the terms and conditions below. Executive
shall do and perform all services, acts and things necessary and advisable to manage and
conduct the business of the Company that are normally associated with the position of CFO. At
all times during his employment, Executive shall report to and be subject to the direction and
policies that are established from time to time by the Company’s Board of Directors (the
“Board”) and Chief Executive Officer (“CEO”). |
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| 2. | Term And Termination. Except as specifically provided herein, the Term of this Agreement
shall commence as of the Effective Date. The Term shall continue through and including April
30, 2009 unless it is terminated earlier as provided herein below or extended by agreement of
the parties. The expiration of this Agreement at the end of its Term shall not constitute a
termination of the employment of Executive. |
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| 3. | Efforts; Location. Executive shall work at Kreido’s Camarillo, California office.
Executive shall not be required routinely to provide services outside of a reasonable
commuting distance from the current Camarillo office except when traveling on Kreido business.
The nature of the Executive’s duties requires flexibility in the days and hours that the
Executive must work. |
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| 4. | Compensation. |
| 4.1 | Cash Compensation. |
| 4.1.1 | Base Salary. Executive shall receive an annual base salary of
$195,000 in accordance with Kreido’s regular payroll practices.
Base salary shall be effective as of April 1, 2008. |
| 4.1.2 | Bonus. Executive shall be entitled to participate in a
performance-based executive bonus plan (“Bonus Plan”), which shall be
promulgated by the Compensation Committee of the Company’s board of directors
each fiscal year. The Bonus Plan will set forth three levels of target
performance goals “TPGs” for fiscal years 2008 and 2009 which, if achieved,
will entitle the Executive to a bonus of between $39,000 and $97,500 depending
upon the level of TPG achieved. The TPGs will consist of a combination of
goals for the Executive’s individual performance and the Company’s
overall performance in a ratio of 75% Company performance and 25% individual
Executive performance.
|
Bonuses paid under the Bonus Plan, if any, will be
paid annually within 60 days after the end of the fiscal year. The
foregoing notwithstanding, so long as Executive’s employment under this
Agreement is not terminated voluntarily by Executive Without Good Reason
pursuant to Section 8.1 of this Agreement, Executive’s bonus shall be no
less than $39,000. In the event Executive’s employment is terminated by
Company Without Cause or by Executive with Good Reason prior to the end of
the applicable fiscal year, Executive shall be entitled to receive a pro
rata portion of the bonus for such fiscal year, subject to a $10,000 minimum
if other executive officers of the Company receive bonuses for such fiscal
year. |
| 4.2 | Stock Options. Executive shall be entitled to participate in the Kreido
Biofuels 2006 Equity Incentive Plan (“Plan”). Executive’s participation in the Plan
shall be governed by the terms and conditions set forth in the applicable Plan
documents to the extent the Plan documents are not inconsistent with the terms of this
Agreement except to the extent required by law. Capitalized words not defined in this
Agreement but used in this Section shall have the meanings ascribed to them in the
Plan. |
| 4.2.1 | Grant of Options. On
the Effective Date, or the Execution Date, if later, the Company will
grant Executive an option to purchase 175,000 shares of the Company’s common
voting stock under the Plan (the “Options”). Subsequently, the Executive shall
be eligible for such additional grants of options and other permissible grants
(collectively “Awards”) under the Plan as the Compensation Committee of the
board of directors of the Company shall determine in its absolute discretion. |
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| 4.2.2 | Option Exercise Price; Term. The per share exercise price of
the Options shall be the final closing price per share of Company common stock
on the date of grant, that being the Execution Date. The Term of the Option
shall be ten years from the date of grant. |
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| 4.2.3 | Vesting and Exercise. The Options shall vest and be
exercisable as follows: 25,000 options shall vest on the Effective
Date, or the Execution Date if later; and an
additional 12,500 options shall vest on the first day of each of the twelve
months beginning with May, 2008 and ending with April, 2009 (each a
“Monthly Vesting”). Each such Monthly Vesting shall remain exercisable for a
period of ten years from the date of grant, subject to Section 4.2.5(iv). |
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| 4.2.4 | Termination of Service; Accelerated Vesting. |
| (i) | If the Executive’s employment is terminated by
the Company for Cause as such term is defined below in Section 7.1.1,
(1) all unvested Monthly Vestings shall expire immediately effective
the date of termination, and; (2) all vested Monthly Vestings shall
expire ten years following the date of the grant. |
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| (ii) | If the Executive’s employment is terminated
voluntarily by the Executive without Good Reason as such term is
defined below, all unvested Monthly Vestings shall immediately expire
effective the date of termination of employment. Vested Monthly
Vestings, to the extent unexercised, shall expire on the later of ten
years after the date of grant or the expiration of the contractual
Lock-Up Agreement. |
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| (iii) | If the Executive’s employment terminates on
account of death or Disability, as defined below, all unvested Monthly
Vestings shall immediately expire
effective the date of death or termination of employment and all
vested Monthly Vestings to the extent unexercised, shall expire ten
years after the date of the grant unless otherwise limited by
applicable federal or state law. |
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| (iv) | If the Executive’s employment is terminated (A)
in connection with a Change of Control as defined below, (B) by the
Company without Cause, or (C) by the Executive for Good Reason, all
unvested Monthly Vestings shall immediately vest and become exercisable
effective the date of termination of employment, and, to the extent
unexercised, shall expire ten years after the date of grant. |
| 4.2.5 | Payment. The full consideration for shares purchased by the
Executive upon exercise of the Option shall be paid: (a) by delivery of a
certified check payable to the order of the Company; (b) by delivery and
attestation of Mature Shares (valued at their Fair Market Value on the date of
delivery) or (c) by delivery of a properly executed exercise notice with
irrevocable instructions to a broker to deliver to the Company the amount
necessary to pay the exercise price from the sale of proceeds of a loan from
the broker with respect to the sale of such award or a broker loan secured by
Mature Shares. |
| 4.3 | Grant of Restricted
Stock. On the Effective Date (or the Execution Date, if later), the Company will issue
to Executive 75,000 shares of Company common stock under the 2006 Equity Incentive
Plan, which shall be Restricted Stock in that it shall be subject to repurchase by the
Company at the price of $0.01 per share if Executive shall not be in the employ of the
Company through the Term of the Agreement other than due to: (1) the death or
disability of Executive; (2) the termination of Executive’s employment by the Company
Without Cause or due to a Change in Control; or (3) the termination of Executive’s
employment by Executive for Good Reason. The certificate representing the Restricted
Stock shall be held in the custody of the Company or its designee for the account of
the Executive pending delivery to Executive upon the lapse of the restriction. The
parties agree that the value of the Restricted Stock while subject to restriction is
$0.01 per share. The Restricted Stock shall be subject to the restriction described
herein and shall bear an appropriate legend with respect to the restriction. |
| 4.3.1 | Taxes. The Executive shall be liable for any and all taxes,
including withholding taxes, arising out of this grant and the vesting of
Restricted Stock hereunder. When the restriction on the Restricted Stock
lapses, Executive may elect to satisfy Company’s withholding tax obligation by
(1) remitting to Company the amount of Company’s minimum withholding
obligation; (2) having Company retain that portion of the Restricted Stock
having a fair market value equal to the Company’s minimum withholding
obligation; (3) having the Company retain its minimum withholding obligation
from payroll otherwise due and payable to Executive at the time the Restriction
lapses; or (4) a combination of numbers 1 through 3. Executive shall notify
Company of his election under this Section as soon as practicably possible
after the restriction on the Restricted Stock has lapsed. |
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| 4.4 | Additional Benefits. |
| 4.4.1 | Welfare Benefit Plans. Executive shall at all times be
entitled to participate in all benefit, 401(k) and other ERISA-qualified plans
made available to senior management executives of Kreido under the same terms
offered to other senior management executives, including without limitation,
health benefit coverage for Executive’s spouse and dependant children, if any. |
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| 4.4.2 | Expense Reimbursement. Kreido shall reimburse Executive for
all ordinary and necessary expenses reasonably incurred by Executive on
Kreido’s behalf (“Business Expenses”). Business Expenses (including travel
costs) in excess of $500 individually or $2,500 in the aggregate shall be
approved in advance except in case of emergency. Additionally, Kreido will
reimburse Executive for all reasonable amounts paid as dues and related
education expenses including qualified courses, conferences and related travel
and lodging to maintain the Executive’s CPA status as active, provided such
dues and expenses are approved in advance by the Chief Executive Officer of
Kreido. Executive shall provide Kreido with documentation for all Business
Expenses at the time reimbursement is requested. In the event it is necessary
for Executive to travel on Kreido’s behalf, Executive shall be entitled to fly
and have travel accommodations on the same level as Kreido’s other most senior
management Executives. |
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| 4.4.3 | Discretionary Time Off. During his employment hereunder,
Executive shall be entitled to accrue Paid Time Off (“PTO”) in accordance with
Kreido’s regular PTO policy for all employees, or at the rate of twenty days
per calendar year, whichever is greater. Executive shall be entitled to
additional PTO of no more than two days per month (four days per month through
June 30, 2008) to attend classes and study in the Executive MBA Program at the
Graduate School of Management at UCLA. Executive shall provide the Company with
a report each month of those days on which he was absent from work to attend
and/or prepare for class. A total of five business days between June 30 and
July 16 that Executive is traveling to, in, through and from the Peoples
Republic of China shall be charged as PTO vacation days while the remaining
Company business days will be paid as qualified work days. |
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| 4.4.4 | Tuition Reimbursement . Company shall reimburse Executive up
to $25,000 of the cost of his tuition at the Executive MBA Program at the
Graduate School of Management at UCLA in which he is currently enrolled so long
as he is employed hereunder provided that he passes the coursework (“Tuition
Reimbursements”) and subject to the Company obtaining additional financing.
The foregoing notwithstanding, in the event that prior to April 30, 2009,
Executive voluntarily terminates his employment without Good Reason as defined
in Section 8.1 of this Agreement, or the Company terminates Executive’s
employment before that date with Cause as defined in
Section 7.1, then a pro rata share (based upon a 12 month
amortization) of the Tuition Reimbursements shall be deemed to have been payroll advances to
Executive (“Payroll Advances”). All such payroll advances shall be recoupable
against any accrued payroll, accrued and minimum bonuses and/or accrued but
unused Paid Time Off due to Executive at the time of the termination of his
employment. If any balance remains thereafter on such Payroll Advances,
Executive agrees to remit the balance to the Company within 10 days after the
termination of his employment. |
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| 5. | Proprietary Covenants of Executive. |
| 5.1 | No Conflicts of Interest. Executive acknowledges that he is bound to use good
judgment, to adhere to the highest ethical standards, and to avoid situations that
create an actual, potential, or apparent conflict of interest. Executive warrants and
represents to Kreido that he is currently unaware of any actual, potential, or apparent
conflicts of interest. He also agrees to immediately disclose to the Chief Executive
Officer or Chairperson of Kreido any and all actual, potential, or apparent conflicts
of interest, should they later arise. In addition, Executive covenants that for so
long as he is employed by the Company, he shall inform the Company of each and every
business opportunity presented to the Executive that could be reasonably feasible
for the Company to undertake that directly or indirectly relate to the alternative
fuels or chemical processing fields or any other area of express interest to the
Company. |
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| 5.2 | Covenant Not to Use or Disclose Confidential Information. |
| 5.2.1 | Definition of Confidential Information. For purposes of this
Agreement, the term Confidential Information means all and any confidential
information and/or trade secrets of Kreido, including without limitation,
scientific discoveries, recipes, formulations, information encompassed in all
advertising and marketing plans, customer lists, costs, pricing information,
information concerning software and all concepts or ideas, in or reasonably
related to the business of Kreido. Confidential Information shall not include
any Kreido information that has been voluntarily disclosed to the public by
Kreido, independently developed and disclosed by others, information about
Kreido that Executive did not obtain by virtue of his employment or fiduciary
relationship with the Company, or information which otherwise enters the public
domain through lawful means. |
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| 5.2.2 | Non-disclosure of Confidential Information. Executive
expressly acknowledges that in the performance of his duties and
responsibilities with the Company prior to the execution of this Agreement, he
has been exposed to Confidential Information and that he will continue to be
exposed to the Confidential Information after the execution of this Agreement.
During his employment and for three years thereafter, Executive shall regard
and preserve as confidential all Confidential Information pertaining to Kreido
and its affiliates that have been or may be obtained by Executive in any way by
reason of Executive’s employment by Kreido. Executive shall not, without the
prior and specific written consent of Kreido, or unless ordered to do so by
court order or subpoena (i) use, publicize, release or disclose to others,
either during or after the period of employment, Confidential Information or
(ii) take, retain or copy any Kreido executive compensation plans, Executive
benefit plans, business plans, customer lists, costs, pricing information,
documents, reports, information encompassed in advertising and marketing plans,
or other concepts or ideas, in or reasonably related to the business of Kreido.
Executive agrees to notify Kreido’s Board of Directors within two (2)
business days of receipt of any court order or subpoena which calls for
information deemed Confidential under this Agreement and to give Kreido
reasonable opportunity to contest the subpoena. The foregoing notwithstanding,
nothing contained in this Section 5.2.2 shall be construed to prevent Executive
from using or disclosing Confidential Information when it is necessary for him
to do so in the course of conducting his regular employment duties. |
Page 5
| 5.3 | Covenant Not to Interfere With Kreido’s Business Relationships. During his
employment and for a period of 12 months after the termination of his employment,
executive shall not, whether for Executive’s own account or for the account of a
third-party, solicit or endeavor to entice any employee or vendor of Kreido to end any
business and/or contractual relationship with Kreido. In addition, Executive will not
use any of Company’s Confidential Information in order to induce any client or customer
of Kreido to end its relationship with the Company. |
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| 5.4 | Ownership and Use of Materials. |
| 5.4.1 | Kreido Materials. Executive agrees that all information
encompassed in all executive compensation plans, Executive benefit plans,
business plans, advertising plans and marketing materials and other
Confidential Information concerning Kreido, its Executives and shareholders,
customer lists, costs, pricing information, documents, reports, plans,
proposals or other items made or created by Executive or that come into
Executive’s possession during the Term are the property of Kreido and shall not
be used by Executive in any way after the Agreement is terminated. |
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| 5.4.2 | Delivery of Materials. Upon termination of this Agreement,
Executive shall promptly deliver to Kreido or destroy all of its executive
compensation plans, Executive benefit plans, business plans, advertising plans
and marketing materials and other Confidential Information concerning Kreido,
its Executives and shareholders, customer lists, costs, pricing information,
documents, reports, plans, proposals or other items made or created by
Executive during the period of employment. |
| 6. | Termination Due to Death or Disability. If Executive dies during the employment, Executive’s
employment shall automatically cease and terminate as of the date of Executive’s death. In
the event of Executive’s disability for a period of 120 consecutive days during any 365-day
period, Company shall thereafter have the right, upon written notice to Executive, to
terminate this Agreement, in which case the date of termination shall be the date of such
written notice to Executive. As used herein, “disability” shall have the meaning provided in
the Company’s disability insurance policy. |
|
In the event of the termination of Executive’s employment due to his death or Disability,
Executive’s estate and/or Executive shall be entitled to receive: (i) a lump sum cash
payment, payable within ten (10) business days after the date of death equal to the sum of
any accrued but unpaid salary and bonus as of the date of death; and (ii) earned Executive
benefits, perquisites and reimbursements described in Section 4 inclusive, if any, as to
which Executive may be entitled hereunder or under Executive benefit plans, programs and
arrangements of Kreido through the date of death. In the event of the termination of
Executive’s employment due to Disability, Executive shall not be entitled to any severance
pay. |
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| 7. | Termination by Kreido. |
| 7.1 | Termination for Cause. |
| 7.1.1 | Definition of Cause. The term “Cause” for purposes of this
Agreement means the following, which will constitute a material breach of this
Agreement (“Material Breach”): Executive’s conviction of or plea of nolo
contendere to any felony or any offense involving moral turpitude. |
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| 7.1.2 | Entitlements Upon a Termination for Cause. In the event of
the termination of the Executive’s employment hereunder due to a termination by
the Company for Cause, on the date of termination Executive shall be entitled
to receive: (i) a lump sum cash payment, payable immediately upon the
termination of Executive’s employment, equal to the sum of any accrued but
unpaid base salary and bonus as of the date of such termination plus any
properly incurred but unpaid expense reimbursements and (ii) earned Executive
benefits, as described in Section 4 of this Agreement, as to which Executive
may be entitled hereunder or under Executive benefit plans, programs and
arrangements of Kreido. |
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| 7.2 | Termination Without Cause. Kreido may terminate Executive’s employment
hereunder without Cause at any time by providing Executive written notice of such
termination. If
Executive’s employment is terminated without Cause, the termination shall take
effect on the effective date of written notice of such termination to Executive
(pursuant to Section 11.10). |
| 7.2.1 | Entitlements Upon a Termination Without Cause. In the event
of the termination of Executive’s employment hereunder due to a termination by
Kreido without Cause (other than due to Executive’s death), Executive shall be
entitled to: (i) a lump sum cash payment, payable immediately upon the
termination of Executive’s employment, equal to the sum of any accrued but
unpaid base salary and bonus as of the date of such termination plus any
properly incurred but unpaid expense reimbursements; (ii) earned Executive
benefits, as described in Section 4 of this Agreement, as to which Executive
may be entitled hereunder or under Executive benefit plans, programs and
arrangements of Kreido through the date of his termination; and (iii) severance
pay on the date of the Termination without Cause equal to Executive’s
then-current base salary for nine months. |
| 8. | Termination by Executive. |
| 8.1 | Termination Without Good Reason. Executive shall have the right to terminate
Executive’s employment hereunder at any time without Good Reason (as defined below)
upon written notice of such termination to Kreido. A voluntary termination by
Executive in accordance with this Section 8.1 shall not be deemed a breach of this
Agreement. Upon any voluntary termination of employment by Executive pursuant to this
Section 8.1, Executive shall have the same entitlements as provided in Section 7.1.2 in
the case of a termination by Kreido for Cause. |
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| 8.2 | Termination With Good Reason. The following events constitute grounds for
Executive to terminate his employment for good reason (“Good Reason”): |
| (i) | removal of Executive from the position specified in Section 1
without Cause; |
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| (ii) | material diminution in Executive’s salary, duties or title; |
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| (iii) | assignment to Executive of duties that are materially
inconsistent with his position or that materially impair his ability to perform
his duties; |
Page 7
| (iv) | Change of Control. For purposes of this Agreement, “Change of
Control” means the occurrence of: (A) any consolidation or merger of the
Company pursuant to which the stockholders of the Company immediately before
the transaction do not retain immediately after the transaction, in
substantially the same proportions as their ownership of shares of the
Company’s voting stock immediately before the transaction, direct or indirect
beneficial ownership of more than 50% of the total combined voting power of the
outstanding voting securities of the surviving business entity; (B) any sale,
lease, exchange or other transfer (in one transaction or a series of related
transactions) of all, or substantially all, of the assets of the Company other
than any sale, lease, exchange or other transfer to any company where the
Company owns, directly or indirectly, 100% of the outstanding voting securities
of such company after any such transfer; (C) the direct or indirect sale or
exchange in a single or series of related transactions by the stockholders of
the Company of more than 50% of the voting stock of the Company; (D) any sale,
lease, exchange or other transfer of stock (in one transaction or a series of
transactions) which results in a single shareholder having more than 50% of the
voting stock of the Company. |
| (v) | the foregoing notwithstanding, i, ii, and iii above will not
constitute Good Reason unless Executive first notifies Kreido in writing
describing the event(s) that constitutes Good Reason (Executive’s Notice of
Good Reason ) and unless Kreido thereafter fails to cure such event(s) within
fifteen business days after Executive delivers Executive’s Notice of Good
Reason to Kreido (“Kreido’s Cure Period”). It will be incumbent upon Executive
to deliver Executive’s Notice of Good Reason to Kreido within fifteen business
days after making a good faith determination that an event constituting Good
Reason has occurred. |
| 8.2.1 | Entitlements Upon a Termination for Good Reason. Upon
Executive’s termination of his employment hereunder for Good Reason in
accordance with Section 8.2 hereof, Executive shall have the same entitlements
as provided under Section 7.2 for a termination by Kreido Without Cause. |
| 9. | Right to Assign. This Agreement shall be assignable only by Kreido. |
|
| 10. | Miscellaneous Terms. |
| 10.1 | Post-Termination Defense of Claims. In the event that Executive and/or Kreido
are named as defendants in any legal proceeding arising from the operation of Kreido’s
business, Kreido shall defend, indemnify and hold Executive harmless to the full extent
required by law. Kreido shall provide Executive with defense counsel of Kreido’s
choosing, but who is also reasonably acceptable to Executive. In the event Executive’s
interests in the proceeding are adverse to Kreido’s interests, Kreido shall provide
Executive with the reasonable costs and fees of an attorney of Executive’s choosing. |
| 10.2 | Alternative Dispute Resolution; Mediation Before Arbitration. |
| 10.2.1 | Arbitrable Disputes. To the fullest extent allowed by law, any controversy,
claim, or dispute between Executive and Kreido (and/or any of its directors,
shareholders, officers, Executives, representatives or agents) relating to or
arising out of his employment or the termination of that employment
(“Arbitrable Dispute”) will be submitted to final and binding arbitration in
Ventura County, California. Executive agrees to execute the Mutual Agreement
to Arbitrate attached hereto as Exhibit “A” and incorporated herein by
reference. |
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| 10.2.2 | Mediation Before Arbitration. The foregoing provisions regarding Arbitration
notwithstanding, before any Arbitrable Dispute is submitted to arbitration, the
Parties agree to mediate such dispute in good faith with a professional
mediator in Ventura County who is also a licensed attorney experienced in the
area of employment law. If the parties cannot agree on the choice of a
mediator, each party shall select a mediator, the two of whom will then select
a third mediator who alone will conduct the mediation. In the event one party
makes a demand on the other for mediation to which such party fails to respond
for a period of thirty days, the party demanding mediation may then submit the
dispute directly to Arbitration pursuant to the Mutual Agreement to Arbitrate. |
| 10.3 | Limitation of Claims. To the fullest extent allowed by law, every controversy,
claim, or dispute between Executive and Kreido (and/or its directors, shareholders,
officers, Executives, representatives and agents) relating to or arising out of his
employment or the termination of that employment (“Claim”) shall be asserted in
writing, with a specific demand first to mediate
and then, if still necessary, to arbitrate the Claim, by the party asserting such
Claim (“Claimant”) and delivered to the non-asserting party no later than twelve
months after the Claimant knows or should have known of the existence of the Claim
or the Claim will be forever barred. The foregoing notwithstanding, any such Claim
that has a statutory limitations period shorter than twelve months will be subject
to the shorter statutory limitations period. |
| 10.4 | Executive’s Fiduciary Duty to Company. No term contained herein is intended to
nor shall be construed to limit or reduce Executive’s fiduciary duties to the Company. |
| 11. | General Terms and Conditions. |
| 11.1 | Waiver. The waiver by any party hereto of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any prior or subsequent
breach; provided, however, that either party to this Agreement may waive any obligation
owed to such party, if such waiver is in writing signed by an authorized signer. |
| 11.2 | Integration; Modification. This Agreement constitutes the entire understanding
and agreement between Kreido and Executive regarding its subject-matter and supersedes
all prior negotiations and agreements between them with respect to its subject-matter
whether oral or written. This Agreement may not be modified except by a writing signed
by Executive and the Chief Executive Officer or Chairperson of Kreido. |
| 11.3 | Enforceability; Severability. If any provision of this Agreement shall be
deemed invalid or unenforceable in whole or in part, such provision shall be deemed to
be modified or restricted to the extent and in the manner necessary to render the same
valid and enforceable, or shall be deemed excised from this Agreement, as the case may
require, and this Agreement shall be construed and enforced to the maximum extent
permitted by law as if such provision had been originally incorporated herein as so
modified or restricted, or as if such provision had not been originally incorporated
herein, as the case may be. |
| 11.4 | Binding Effect. All the terms and conditions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns. |
| 11.5 | Descriptive Headings. The paragraph and section headings in this Agreement are
for convenience only and shall not control or affect the meaning or construction of any
provision of this Agreement. |
Page 9
| 11.6 | Counterparts and Facsimile Signatures. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, and all such
counterparts together shall constitute but one agreement. Facsimile signatures on this
Agreement shall be treated as original signatures. |
| 11.7 | Third-Party Beneficiaries. No person shall be a third-party beneficiary of
this Agreement and no person other than the parties hereto and their permitted
successors and assigns shall receive any of the benefits of this Agreement. |
| 11.8 | Applicable Law and Jurisdiction. This Agreement shall be governed by and
construed in accordance with the laws of the State of California without regard to
conflicts of laws principles. |
| 11.9 | Arms Length Agreement. This Agreement has been negotiated at arms length
between persons knowledgeable in the matters dealt with herein. Accordingly, any rule
of law or any
statute, legal decision, or common law principle of similar effect that would
require interpretation of any ambiguity in this Agreement against the party that
drafted it is of no application and is hereby expressly waived. |
| 11.10 | Notices. All notices, statements and other documents that any party is
required or desires to give to the other party hereunder shall be given in writing and
shall be served in person, by express mail, by certified mail, by overnight delivery or
by facsimile at the respective addresses of the parties as set forth below, or at such
other addresses as may be designated in writing by such party in accordance with the
terms of this Section 11.10. |
| If to Kreido: | Kreido Biofuels, Inc. | |||
| 0000 Xxxxx Xxxxxx | ||||
| Xxxxxxxxx, Xxxxxxxxxx 00000 | ||||
| Attention: Xxxxx Xxxxx, Chair of the Board and | ||||
G.A.
Xxx Xxxxxxxxx, CEO |
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| Fax: (000) 000-0000 | ||||
| If to Executive: | Xxxx Xxxxxxxx | |||
| INFORMATION ON FILE |
Delivery shall be deemed conclusively made (i) at the time of service, if personally
served, (ii) when deposited in the United States mail, properly addressed and
postage prepaid, if delivered by express mail or certified mail, (iii) upon deposit
with the private overnight deliverer, if served by overnight delivery, and (iv) at
the time of electronic facsimile transmission (as confirmed in writing), provided a
copy is mailed within twenty-four (24) hours after such transmission. |
Page 10
IN WITNESS WHEREOF, Kreido and Executive have executed this Agreement this
_____
day of April,
2008.
This Agreement is subject to an arbitration agreement, which is attached hereto and incorporated
herein by reference.
| KREIDO BIOFUELS, INC., a Nevada corporation and KREIDO LABORATORIES, a California corporation | EXECUTIVE: | |||||||
By: |
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Page 11
EXHIBIT A
MUTUAL AGREEMENT
TO
ARBITRATE CLAIMS
MUTUAL AGREEMENT
TO
ARBITRATE CLAIMS
This Agreement is between Kreido Biofuels, Inc. (“Company”) and Xxxxxx X. Xxxxxxxxx (referred
to as “I” or “me”). While I am employed by the Company or thereafter, disputes may arise between
the Company and me related to my employment. By entering into this Agreement, both the Company and
I anticipate that we will benefit by resolving these disputes through binding arbitration.
Arbitration is a fair and impartial procedure that in most cases is faster and less expensive
than civil litigation. References to “the Company” in this Agreement include Kreido Biofuels,
Inc., its parents, subsidiaries, shareholders, partners, directors, and all affiliates of Kreido
Biofuels, Inc., together with all benefit plans of Kreido Biofuels, Inc. and the sponsors,
fiduciaries and administrators of such benefit plans.
Claims Covered by This Agreement: Except as described in the next paragraph, this Agreement
applies to all disputes between the Company and me, all claims the Company may have against me, and
all claims I may have against the Company or its agents, arising out of my employment with the
Company or the termination of my employment (referred to as Claims). This Agreement will apply to
Claims asserted during my employment with the Company or after it has ended. Claims covered by
this Agreement include but are not limited to: claims for breach of express or implied contract or
covenant; claims for the commission of any intentional or negligent tort; claims for violation of
any federal, state or local law, ordinance, regulation or rule; claims for wages, benefits or other
compensation due; claims for wrongful termination, demotion or disciplinary action; and claims of
discrimination or harassment under the Fair Employment and Housing Act and Title VII of the Civil
Rights Act, as amended.
Claims Not Covered by This Agreement: This Agreement does not apply to the following claims:
Claims for worker’s compensation or unemployment compensation benefits; Claims or charges before
any administrative agency having jurisdiction of the Claim, if private dispute resolution
procedures cannot be compelled as to such Claim; or Claims for benefits under a benefit plan which
has a claim procedure inconsistent with this Agreement.
Exclusive Remedy: All Claims must be resolved according to the procedures in this Agreement,
and not otherwise except for the provision for Mediation before Arbitration as provided in the
Employment Agreement between me and the Company of even date herewith (the “Employment Agreement”).
Neither the Company nor I will file or prosecute any lawsuit or administrative action in any way
related to any Claim, except as expressly permitted by this Agreement and the Employment Agreement.
Either the Company or I may bring an action in any court of competent jurisdiction to compel
arbitration under this Agreement. The parties understand and agree that they are waiving any right
to a jury trial by entering into this Agreement.
Arbitration: All Claims must be resolved through final and binding arbitration. The
arbitrator must be a neutral arbitrator chosen by the parties. Arbitration will take place at a
location determined by the arbitrator in Los Angeles County, California. The arbitration will be
administered in compliance with (a) the Federal Arbitration Act, U.S. Code, Tit. 9, § 1 et seq.,
California Arbitration Act, or such other state or federal law as may be adopted, (b) the
procedures set forth below and, (c) to the extent not inconsistent with such procedures, the then
existing AAA California Employment Dispute Resolution Rules. Any dispute about the interpretation,
applicability, enforceability or validity of this Agreement, or whether any issue is subject to
arbitration under this Agreement, will be determined by the arbitrator.
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Arbitration Procedures; Discovery:
5.1 A deposition is a chance for each party to ask questions of a witness, and the witness
must answer the questions under oath, with a court reporter present. Each party may take the
deposition of whatever persons they elect to depose. Additional depositions may be ordered by the
arbitrator. At or before the final Arbitration Management Conference, each party will provide the
other with copies of all non-privileged documents in their possession or control which they intend
to introduce as exhibits at the hearing or on which they rely to support their positions.
5.2 Interrogatories, Requests to Produce, and Requests to Admit are written methods that the
parties may use to learn about the other party’s case. These discovery methods will be allowed in
the manner permitted under California Arbitration Act, Calif. Code of Civil Proc. § 1283.05.
5.3 The arbitrator may rule on pre-hearing disputes and hold such pre-hearing conferences by
telephone or in person as he or she may determine. Either party may make motions to dismiss, for
summary judgment and/or for summary adjudication of issues.
5.4 Either party may submit, or the arbitrator may order either or both parties to submit, a
brief before the arbitration hearing. Either party, at its own expense, may arrange for a court
reporter to provide a stenographic record of proceedings at the hearing. The arbitrator will apply
the substantive law and the law of remedies of the State of California or the United States, as
applicable to the Claims.
5.5 After the end of the arbitration hearing, either party may file a post-hearing brief
within a time set by the arbitrator.
5.6 The arbitrator shall issue a written award, which shall include a statement of the
essential findings and conclusions on which the award is based. The award will be final and
binding on the parties to the arbitration. The arbitrator’s award may be reviewed by a court of
competent jurisdiction.
Arbitration Costs: the Company will pay the costs of arbitration, including reasonable fees
imposed by the AAA and the arbitrator. I will be responsible for the costs of discovery initiated
by me or on my behalf, any depositions noticed by me or on my behalf, expert witnesses retained by
me or on my behalf and for any out-of-pocket expenses incurred by me or on my behalf.
Legal Representation: In any arbitration under this Agreement, both the Company and I may be
represented by legal counsel of our own choosing. Each of us will be responsible for the fees of
our own counsel, provided that an arbitrator may award attorneys’ fees to the prevailing party
under any applicable statute or written agreement to the same extent that attorneys’ fees could be
awarded in standard civil litigation. This provision for the award of attorneys’ fees is subject to
the provisions of the Employment Agreement requiring Mediation before Arbitration.
Integrated Agreement; Amendment: This Agreement contains the final and complete expression
and understanding between the Company and me with respect to the subjects covered hereby. This
Agreement cannot be amended or modified except in writing, signed by an authorized representative
of Kreido Biofuels, Inc. and by me.
Severability: If any provision of this Agreement is held invalid, in whole or part, such
invalidity will not affect the remainder of such provision or the remaining provisions of this
Agreement.
Headings: The headings in this Agreement are inserted for convenience only and do not affect
the meaning or interpretation of this Agreement or any provision hereof.
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Successors and Assigns: This Agreement will be binding upon, and inure to the benefit of, the
Company, me and our respective heirs, executors, administrators, representatives, successors and
assigns.
Governing Law: I acknowledge that the Company is engaged in interstate commerce and that this
Agreement is covered by the provisions of the Federal Arbitration Act. This Agreement is to be
construed, and the rights and obligations of the parties hereunder determined, in accordance with
the laws of the United States and the State of California.
IMPORTANT
I agree that I have been given a reasonable opportunity to read this Agreement carefully, I have
read it, understand it and I am signing it voluntarily. I have not been promised anything for
signing it that is not described in this Arbitration Agreement and the Employment Agreement. The
Company encourages me to discuss this Agreement with my legal advisor if I wish before signing it.
In Witness Whereof, Kreido and Executive have executed this Agreement this
_____
day of April, 2008 (the “Execution Date”).
| KREIDO BIOFUELS, INC. | EXECUTIVE: | |||||||
By: |
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