EMPLOYMENT AGREEMENT
This
EMPLOYMENT AGREEMENT (the “Agreement”) is made as of July
23, 2009 (the “Effective
Date”), by and among New Generation Biofuels Holdings, Inc., a Florida
corporation (the “Company”), and Xxx X. Xxxxx,
an individual (“Executive”), with respect to
the following facts and circumstances:
RECITALS
WHEREAS,
the Company’s subsidiary, New Generation Biofuels, Inc. (formerly H2Diesel,
Inc.) and Executive entered into an Employment Agreement dated May 5, 2006 and
effective October 20, 2006, (the “Existing Agreement”) pursuant
to which Executive is serving as Chairman of the Board of the
Company;
WHEREAS,
the Company and Executive wish to enter into the Agreement, on the terms and
conditions as set forth herein, effective July 23, 2009, which will supersede
the Existing Agreement.
NOW,
THEREFORE, in consideration of the mutual promises, covenants and agreements set
forth herein, the parties hereto agree as follows:
ARTICLE
1
EMPLOYMENT,
TERM AND DUTIES
1.1 Employment. The
Company shall hereby employ Executive as Chairman of the Board, upon the terms
and conditions set forth in this Agreement.
1.2 Term. This
Agreement shall continue from the Effective Date until July 23, 2010 (the “Term”), unless earlier
terminated under Article 5; provided, that the
Term shall automatically renew for additional one-year periods unless either the
Company or Executive gives notice of non-renewal at least ninety (90) days prior
to expiration of the Term (as it may have been extended by any renewal
period). Prior to the Effective Date, the Existing Agreement shall
remain in effect in accordance with its terms.
1.3 Duties. Executive
shall report to the Company’s board of directors (the “Board”) and shall perform all
the customary duties and obligations reasonably associated with the position of
non-executive Chairman, including leading board meetings and providing general
strategic advice to the Board and management team (“Customary
Duties”). Executive also shall perform such extraordinary
executive duties consistent with the foregoing as are mutually agreed upon by
the Executive and the Board. Such extraordinary duties may include
serving in a leadership role in capital raising and strategic transactions,
interfacing with major Company shareholders, assisting with sales and marketing
and providing executive-level guidance to the Board and other executives
including the Chief Executive Officer (“Extraordinary
Duties”). Executive shall perform the services contemplated
herein faithfully and diligently. While performing both Customary
Duties and Extraordinary Duties as one of the principal executives of the
Company, Executive shall devote substantially all of his business time and
efforts to rendering such services; provided, that
Executive may participate in social, civic, charitable, religious, business,
educational or professional associations, so long as such participation does not
materially interfere with the duties and obligations of Executive
hereunder.
ARTICLE
2
COMPENSATION
2.1 Salary. In
consideration for Executive’s full-time services hereunder as a Company
executive performing both Customary Duties and Extraordinary Duties, the Company
shall pay Executive an annual salary at the rate of $198,000 per year, payable
in accordance with the Company’s regular payroll schedule from time to time
(less any deductions required for Social Security, state, federal and local
withholding taxes, and any other authorized or mandated similar
withholdings). The annual salary shall be reviewed by the
Compensation Committee of the Board (the “Compensation Committee”) no
less frequently than annually and may be increased at the discretion of the
Compensation Committee to reflect additional Extraordinary Duties or decreased
at the discretion of the Compensation Committee to reflect reductions in the
Executive’s Extraordinary Duties; provided that such salary shall not be
decreased as long as the Executive remains employed full-time to perform both
the Customary and Extraordinary Duties set forth in section 1.3.
2.2 Annual Cash
Bonus. Executive shall be entitled to earn bonuses during the
Term (the “Annual Cash
Bonus”), based upon Executive’s achievement of performance objectives set
by the Compensation Committee, with a targeted bonus of fifty percent (50%) of
Executive’s annual salary for such fiscal year (or partial fiscal
year).
2.3 Special Cash
Bonus. Executive shall be entitled to receive a one-time
special cash bonus of up to $160,000 based upon Executive’s assistance and
support in raising equity capital for the Company, at an exact amount to be
determined by the Compensation Committee. Such amount shall be
excluded from any performance-based compensation payable to the Executive based
on achievement of the Company’s 2009 Performance Goals.
2.4 Stock
Options. In consideration of the services to be rendered under
this Agreement:
(a)
Subject to the approval requirements set forth in Section 2.4(c) below, the
Company shall grant to Executive options to purchase 463,060 shares of the
Company’s common stock at a price of $1.05 per share, of which 150,000 shares
shall vest on the date hereof and the remainder shall vest in annual tranches as
follows (collectively, the “Time-Based
Options”):
104,353 shares shall vest on the first
anniversary of the Effective Date;
104,353
shares shall vest on the second anniversary of the Effective Date;
and
104,354 shares shall vest on the third
anniversary of the Effective Date.
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(b) Subject to the approval
requirements specified in Section 2.4(c) below, the Company shall grant to the
Executive options to purchase 469,440 shares of the Company’s common stock at a
price of $1.05 per share which shall vest in annual tranches if certain annual
performance targets (the “Performance Targets”) to be
established in good faith by the Compensation Committee are met, as more fully
set forth below (collectively, the “Performance Options” and
together with the Time-Based Options the “Options”):
156,480
shares if the Performance Options shall vest in respect of the fiscal year
ending December 31, 2009 if the Performance Targets for such year are
met;
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156,480
shares shall vest in respect of the fiscal year ending December 31, 2010
if the Performance Targets for such year are met;
and
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156,480
shares shall vest in respect of the fiscal year ending December 31, 2011 if the
Performance Targets for such year are met.
The
Performance Targets for each fiscal year shall be established by the
Compensation Committee. The Compensation Committee shall determine
whether the Performance Targets for the preceding fiscal year have been met
after the date that the Company’s audited financial statements in respect of
such fiscal year become available, and if such Performance Targets are
determined to have been met, the Performance Options in respect of such fiscal
year shall be deemed to be vested as of such date of
determination. The Time Based Options and the Performance Options
shall be more fully documented in one or more Stock Option Agreement(s)
containing customary terms and conditions and shall expire on the tenth (10th)
anniversary of the Effective Date.
(c) 521,667 of the Options
(the “Conditional
Options”), consisting of the Time-Based Options vesting on the second and
third anniversary of the Effective Date and the Performance Options vesting in
respect of fiscal years ending December 31, 2010 and 2011, shall be subject to
the following conditions: (i) shareholder approval of additional shares
available under the Company’s Omnibus Incentive Plan, or (ii) Compensation
Committee approval to grant Options from existing shares available under the
Company’s Omnibus Incentive Plan. If such shareholder approval or
Compensation Committee approval is not obtained, Executive shall not be granted
such Conditional Options.
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2.5 Stock Grant. (a)
Subject to the approval requirements set forth in Section 2.5(b)
below, the Company shall grant to Executive 782,500 shares of the
Company’s common stock which shall vest in annual tranches, as follows
(collectively, the “Stock
Grant”):
260,833 shares vest on the first
anniversary of the Effective Date;
260,833 shares vest on the second
anniversary of the Effective Date; and
260,834 shares vest on the third
anniversary of the Effective Date.
The Stock
Grant shall be more fully documented in one or more Stock Agreement(s)
containing customary terms and conditions.
(b)
521,667 shares of such Stock Grant (the “Conditional Stock Grant”),
consisting of the shares vesting on the second and third anniversary of the
Effective Date, shall be subject to the following conditions: (i) shareholder
approval of additional shares available under the Company’s Omnibus Incentive
Plan or (ii) Compensation Committee approval of the remaining Stock Grant from
existing shares available under the Company’s Omnibus Incentive
Plan. If such shareholder approval or Compensation Committee approval
is not obtained, Executive shall not receive the Conditional Stock
Grant.
2.6 Awards Subject to Omnibus
Incentive Plan. All equity awards contemplated by this Agreement
shall be subject to any caps, limitations, restrictions or other terms and
conditions under the Company’s Omnibus Incentive Plan (or other such plan as may
be adopted to supersede the Omnibus Incentive Plan), and the rules and
regulations of the Securities and Exchange Commission and the Nasdaq Capital
Market (or such other exchange on which the Company’s securities may be listed
and traded.)
2.7 Other Performance-Based Cash
or Equity Compensation Awards. The Executive shall be eligible
to participate in the Company’s existing Management Equity Compensation Plan and
in any other performance-based cash or equity compensation plans that include
the other Company executives. The amount of any cash or equity awards
to the Executive and terms and conditions thereof shall be determined by the
Compensation Committee, or such other committee of the Board appointed pursuant
to the plan, or by the Board.
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ARTICLE
3
EXECUTIVE
BENEFITS
3.1 Vacation. Executive
shall be entitled to vacation each calendar year in accordance with the general
policies of the Company applicable generally to other senior executives of the
Company. Unused vacation shall carry over in accordance with the
general policies of the Company.
3.2 Executive
Benefits. Executive shall receive all group insurance and
pension plan benefits and any other benefits on the same basis as are available
to other senior executives of the Company under the Company personnel policies
in effect from time to time. Executive shall receive all other such
fringe benefits as the Company may offer to other senior executives of the
Company generally under the Company personnel policies in effect from time to
time, such as life, health and disability insurance coverage and paid sick
leave.
3.3 Reimbursement for
Expenses. Executive shall be reimbursed by the Company for all
documented reasonable expenses incurred by Executive in the performance of his
duties or otherwise in furtherance of the business of the Company in accordance
with the policies of the Company in effect from time to time. Any
reimbursement under this Section 3.3 that is taxable to Executive shall be
made by December 31 of
the calendar year following the calendar year in which Executive incurred the
expense.
ARTICLE
4
INDEMNIFICATION
4.1
Indemnification. Except
as otherwise provided by applicable law, while the Executive is employed by the
Company and thereafter while potential liability exists (but in no event less
than three (3) years after termination), in the event Executive is made a party
to any threatened, pending, or contemplated action, suit, or proceeding, whether
civil, criminal, administrative, or investigative (other than an action by the
Company against Executive), by reason of the fact that Executive is or was
performing services under this Agreement, then the Company shall indemnify
Executive to the fullest extent permitted by applicable law against all expenses
(including attorneys’ fees), judgments, fines, and amounts paid in settlement,
as actually and reasonably incurred by Executive in connection therewith. In the
event that both Executive and the Company are made a party to the same third
party action, complaint, suit, or proceeding, the Company will engage competent
legal representation, and Executive will use the same representation, provided
that if counsel selected by the Company shall have a conflict of interest that
prevents such counsel from representing Executive, then the Company may engage
separate counsel on Executive’s behalf, and subject to the provisions of this
Section 4, the Company will pay all attorneys’ fees of such separate
counsel.
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ARTICLE
5
TERMINATION
5.1 Grounds for
Termination.
5.1.1 Death or
Disability. Executive’s employment shall terminate immediately
in the event of Executive’s death or Disability. “Disability” means Executive is
unable to engage in
any substantial gainful business activity by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or that has rendered Executive unable effectively to carry out his duties
and obligations under this Agreement or unable to participate effectively and
actively in the management of the Company for a period of ninety (90)
consecutive days or for shorter periods aggregating to one hundred twenty (120)
days (whether or not consecutive) during any consecutive twelve (12) months of
the Term.
5.1.2 Cause. The
Company shall have the right to terminate Executive’s employment by giving
written notice of such termination to Executive upon the occurrence of any one
or more of the following events (“Cause”):
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(a)
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any
willful act or willful omission, other than as a result of Executive’s
Disability, that represents a breach of any of the terms of this agreement
to the material detriment of the
Company;
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(b)
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bad
faith by Executive in the performance of his duties, consisting of willful
acts or willful omissions, other than as a result of Executive’s
Disability, to the material detriment of the Company;
or
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(c)
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Executive’s
conviction of, or pleading nolo contendere to, a crime that constitutes a
felony involving fraud, conversion, misappropriation, or embezzlement
under the laws of the United States or any political subdivision thereof,
which conviction has become final and
non-appealable.
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5.1.3 Good
Reason. Executive may terminate his employment under this
Agreement by giving written notice to the Company upon the occurrence of any one
or more of the following events within one year following a Change of Control
(as defined in Section 5.1.4) (“Good Reason”):
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(a)
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a
material diminution during the Term in Executive’s Duties at as defined in
Section 1.3 from the time of such Change in
Control;
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(b)
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a
material diminution during the Term in Executive’s annual salary or annual
bonus opportunity from the time of such Change in Control;
or
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(c)
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a
material breach by the Company of any term of the
Agreement.
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5.1.4 Change of
Control. For purposes of this Agreement, a “Change of Control” shall mean
the occurrence of any of the following events:
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(a)
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the
direct or indirect acquisition by an unrelated Person or Group of
Beneficial Ownership (each as defined herein) of stock that, together with
stock already Beneficially Owned by such Person or Group, constitutes more
than 50% of the voting power of the Company’s issued and outstanding
voting stock or more than 50% of the fair market value of the Company’s
issued and outstanding stock;
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(b)
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the
direct or indirect sale or transfer by the Company of substantially all of
its assets to one or more unrelated Persons or Groups in a single
transaction or a series of related
transactions;
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(c)
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the
merger, consolidation or reorganization of the Company with or into
another corporation or other entity in which the Beneficial Owners of more
than 50% of the voting power of the Company’s issued and outstanding
voting securities immediately before such merger, consolidation or
reorganization do not own, directly or indirectly, more than 50% of the
voting power of the issued and outstanding voting securities of the
surviving corporation or other entity immediately after such merger,
consolidation or reorganization; or
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(d)
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during
any consecutive 12-month period, individuals who at the beginning of such
period constituted the Board (together with any new directors whose
election to the Board or whose nomination for election by the stockholders
of the Company was approved by a vote of a majority of the directors on
the Board then still in office who were either directors at the beginning
of such period or whose election or nomination for election was previously
so approved) cease for any reason to constitute a majority of the members
of the Board then in office.
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Notwithstanding the terms of this
Section 5.1.4, none of the foregoing events shall constitute a Change of Control
if such event is not a “Change in Control Event” under Treasury Regulations
Section 1.409A-3(i)(5) or successor guidance of the Internal Revenue
Service.
For purposes of determining whether a
Change of Control has occurred, a Person or Group shall not be deemed to be
“unrelated” if: (a) such Person or Group directly or indirectly has Beneficial
Ownership of more than 50% of the issued and outstanding voting power of the
Company’s voting securities immediately before the transaction in question, (b)
the Company has Beneficial Ownership of more than 50% of the voting power of the
issued and outstanding voting securities of such Person or Group, or (c) more
than 50% of the voting power of the issued and outstanding voting securities of
such Person or Group are owned, directly or indirectly, by Beneficial Owners of
more than 50% of the issued and outstanding voting power of the Company’s voting
securities immediately before the transaction in question.
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The terms “Person,” “Group,” “Beneficial Owner,” and “Beneficial Ownership” shall
have the meanings used in the Securities Exchange Act of 1934, as
amended. Notwithstanding the foregoing, (a) Persons will not be
considered to be acting as a “Group” solely because they purchase or own stock
of the Company at the same time, or as a result of purchases in the same public
offering, (b) Persons will be considered to be acting as a “Group” if they are
owners of a corporation that enters into a merger, consolidation,
reorganization, purchase or acquisition of stock, or similar business
transaction, with the Company, and (c) if a Person, including an entity, owns
stock both in the Company and in a corporation that enters into a merger,
consolidation, reorganization, purchase or acquisition of stock, or similar
transaction, with the Company, such Person shall be considered to be acting as a
Group with other shareholders only with respect to the ownership in such
corporation prior to the transaction.
5.1.5 Opportunity to
Cure. Notwithstanding Sections 5.1.2 and 5.1.3, it shall be a condition precedent to
a party’s right to terminate Executive’s employment for Cause or Good Reason, as
applicable, that (a) such party shall have first given the other party written
notice stating with reasonable specificity the breach on which such termination
is premised within ninety (90) days after the party providing such notice
becomes aware of such breach, and (b) if such breach is susceptible of cure or
remedy, such breach has not been cured or remedied within forty-five (45) days
after receipt of such notice.
5.1.6 Any Other
Reason. Notwithstanding anything to the contrary herein, the
Company shall have the right to terminate Executive’s employment under this
Agreement at any time without Cause by giving written notice of such termination
to Executive, and Executive shall have the right to terminate Executive’s
employment under this Agreement at any time without Good Reason by giving
written notice of such termination to the Company.
5.2 Termination
Date. Except as provided in Section 5.1.1 with respect to Executive’s death or Disability,
and subject to Section 5.1.5, any termination under Section 5.1 shall be effective upon receipt of notice by
Executive or the Company, as the case may be, of such termination or upon such
other later date as may be provided herein or specified by the Company or
Executive in the notice (the “Termination
Date”).
5.3 Effect of
Termination.
5.3.1 Termination with Cause or
Voluntary Resignation without Good Reason Prior to a Change of
Control. If the Company (a) terminates the Executive’s
employment with Cause or (b) the Executive voluntarily resigns prior to a Change
of Control without Good Reason, the Company shall pay all Accrued Obligations to
Executive in a lump sum in cash within ten (10) days after the Termination
Date. “Accrued
Obligations” means the sum of (a) Executive’s annual salary hereunder
through the Termination Date to the extent not yet paid, (b) the amount of any
Annual Cash Bonus and any other cash compensation earned by Executive as of the
Termination Date to the extent but not yet paid, and (c) any vacation pay,
expense reimbursements and other cash entitlements accrued by Executive as of
the Termination Date to the extent but not yet paid; provided, however, vacation pay
will not in any event be based on more than the maximum number of vacation days
that Executive may be entitled to in a single year.
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5.3.2 Termination without Cause,
Termination by Company through Notice of Non-Renewal of Term or Voluntary
Resignation with Good Reason after a Change of Control. If (a)
the Company terminates the Executive’s employment without Cause, (b) the Company
terminates the Executive’s employment by notice of non-renewal of the Term
pursuant to section 1.2, or (c) the Executive voluntarily resigns with Good
Reason after a Change of Control:
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(a)
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the
Company shall pay all Accrued Obligations to Executive in a lump sum in
cash within ten (10) days after the Termination
Date;
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(b)
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the
Company shall accelerate the vesting on all Time-Based Options and Stock
Grants and, if the conditions have been met on or before the Termination
Date, on the Time-Based Conditional Options and Conditional Stock
Grants;
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(c)
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the
Company shall vest any Performance Options (including any
performance-based Conditional Options if the conditions have been met on
or before the Termination Date) on a pro-rata basis at the end of the
performance period once the Compensation Committee determines that the
performance targets have been
achieved;
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(d)
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the
Company shall pay to Executive, in a lump sum in cash no later than the
Severance Payment Deadline (as defined in Section 5.3.4), an amount equal to the sum of
(a) Executive’s Annual Salary as in effect on the Termination Date
and (b) the average of the two (2) highest Annual Cash Bonuses (but not
Special Cash Bonus) earned by Executive for
the three (3) prior years or, if Executive has not been employed for three
(3) years, the target Annual Cash Bonus for the year of the Termination
Date; and
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(e)
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for
an 18 month period beginning on the Termination Date, the Company shall
reimburse Executive for the COBRA premiums above Executive’s employee
contribution in order to provide medical, dental, vision and life
insurance benefits to Executive and/or Executive’s family at least equal
to those which were provided at the Termination Date; provided, further, that
Executive agrees to elect COBRA coverage to the extent available under the
Company’s health insurance plans. Any payment or reimbursement
under this Section 5.3.2(b) that is taxable
to Executive or any of his family members shall be made (subject to the provisions of such
health care plans that may require earlier payment) by December 31
of the calendar year following the calendar year in which Executive or
such family member incurred the
expense.
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“Annual Salary” shall mean
Executive’s highest annual salary over the 12 months prior to the Termination
Date.
5.3.3 Termination Due to Death or
Disability. In the event that Executive’s employment is
terminated due to Executive’s death or Disability the Company shall pay all
Accrued Obligations to Executive or Executive’s estate in a lump sum in cash
within ten (10) days after the Termination Date.
5.3.4 Waiver and Release
Agreement. In consideration of the severance payments and
other benefits described in clauses (b), (c) and (d) of Section 5.3.2, to which severance payments and benefits
Executive would not otherwise be entitled, and as a precondition to Executive
becoming entitled to such severance payments and other benefits under this
Agreement, Executive agrees to execute and deliver to the Company within fifty
(50) days after the applicable Termination Date a Waiver and Release Agreement
in the form attached hereto as Exhibit A without alteration or addition other
than to include the date (the “Release”). If
Executive fails to execute and deliver the Release within fifty (50) days after
the applicable Termination Date, or if Executive revokes such Release as
provided therein, the Company shall have no obligation to provide any of the
severance payments and other benefits described in clauses (b), (c) and (d) of
Section 5.3.2. The timing of severance
payments under clause (c) of Section 5.3.2 upon
Executive’s execution and delivery of the Release shall be further governed by
the following provisions (the last date on which such payments may be made, the
“Severance Payment
Deadline”):
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(a)
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in
any case in which the Release (and the expiration of any revocation rights
provided therein) could only become effective in a particular tax year of
Executive, payments conditioned on execution of the release shall be made
within ten (10) days after the Release becomes effective and such
revocation rights have lapsed.
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(b)
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in
any case in which the Release (and the expiration of any revocation rights
provided therein) could become effective in one of two (2) taxable years
of Executive depending on when Executive executes and delivers the
Release, payments conditioned on execution of the Release shall be made
within ten (10) days after the Release becomes effective and such
revocation rights have lapsed, but not earlier than the first business day
of the later of such tax years.
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5.4 Required Delay For Certain
Deferred Compensation and Section 409A. In the event that any
compensation with respect to Executive’s termination is “deferred compensation”
within the meaning of Section 409A, the stock of the Company or any affiliate is
publicly traded on an established securities market or otherwise, and Executive
is determined to be a “specified employee,” as defined in Section
409A(a)(2)(B)(i) of the Code, payment of such compensation shall be delayed as
required by Section 409A. Such delay shall last six (6) months from
the date of Executive’s “separation from service” (within the meaning of Treas.
Reg. Section 1.409A-1(h)) with the Company, except in the event of Executive’s
death. On the first day of the seventh month following the date of
separation from service with the Company, or, if earlier, Executive’s death, the
Company will make a catch-up payment to Executive equal to the total amount of
such payments that would have been made during the six (6)-month period but for
this Section 5.4. Such catch-up payment shall bear simple
interest at the prime rate of interest as published by The Wall
Street Journal’s bank survey as of the first day of the
six (6)-month period, which such interest shall be paid with the catch-up
payment. Wherever payments under this Agreement are to be made
in installments, each such installment shall be deemed to be a separate payment
for purposes of Section 409A. Whenever a payment under this Agreement
specifies a payment period with reference to a number of days (e.g., “payment shall
be made within thirty (30) days after termination of employment”), the actual
date of payment within the specified period shall be within the sole discretion
of the Company.
5.5 Non-Exclusivity of
Rights. Nothing in this Agreement shall prevent or limit
Executive’s continuing or future participation in any plan, program, policy or
practice provided by the Company or its subsidiaries and for which Executive may
qualify, nor shall anything herein limit or otherwise affect such rights as
Executive may have under any other contract or agreement with the Company or its
subsidiaries at or subsequent to the Termination Date, which shall be payable in
accordance with such plan, policy, practice or program or contract or agreement,
except as explicitly modified by this Agreement.
5.6 No Set-Off or
Mitigation. The Company’s obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any setoff, counterclaim, recoupment,
defense, or other claim, right or action that the Company may have against
Executive or others, except to the extent of the mitigation and setoff
provisions provided for in this Agreement. In no event shall
Executive be obligated to seek other employment or take any other action by way
of mitigation of the amounts payable to Executive under any of the provisions of
this Agreement and such amounts shall not be reduced whether or not Executive
obtains other employment.
ARTICLE
6
RESTRICTIVE
COVENANTS
6.1 Confidential Information and
Trade Secrets.
6.1.1 Obligation to Maintain
Confidentiality. Executive acknowledges that, by reason of
Executive’s employment by the Company, Executive will have access to trade
secrets and other confidential, proprietary, and non-public information
concerning the business or affairs of the Company, and their respective
subsidiaries (collectively, the “Companies”), including but not
limited to methods or systems of their operation or management, any information
regarding their financial matters, or any other material information (including
member, subscriber, and provider lists and identifying information regarding
members and subscribers) concerning the business of the Companies, their manner
of operation, or their plans or other material data (collectively, “Confidential
Information”). Executive acknowledges that such trade secrets
and Confidential Information are valuable and unique assets of the Companies and
covenants that, both during and after the Term, Executive shall not disclose any
trade secrets or Confidential Information to any person or entity (except as
Executive’s duties as a director, officer or executive of the Company require)
without the prior written authorization of the Board. The obligation
of confidentiality imposed by this Section 6.1
shall not apply to trade secrets or Confidential Information that otherwise
become known to the public through no act of Executive in breach of this
Agreement or which are required to be disclosed by court order, applicable law
or regulatory requirements, nor shall it apply to Executive’s disclosure of
trade secrets or Confidential Information to his attorneys and advisors in
connection with a dispute between Executive and the Company.
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6.1.2 Company
Property. All records, designs, business plans, financial
statements, customer lists, manuals, memoranda, lists, research and development
plans, Intellectual Property and other property delivered to or compiled by
Executive by or on behalf of the Company or its providers, clients or customers
that pertain to the business of the Company shall be and remain the property of
the Company and be subject at all times to its discretion and
control. Likewise, all correspondence, reports, records, charts,
advertising materials and other similar data pertaining to the business,
activities, research and development, Intellectual Property or future plans
of the Company that is collected by Executive shall be delivered
promptly to the Company without request by it upon termination of Executive’s
employment. For purposes of this Section 6.1.2, “Intellectual Property” shall
mean patents, copyrights, trademarks, trade dress, trade secrets, other such
rights, and any applications therefor.
6.2 Inventions. Executive
is hereby retained in a capacity such that Executive’s responsibilities may
include the making of technical and managerial contributions of value to the
Company. Executive hereby assigns to the applicable the Company all
rights, title and interest in such contributions and inventions made or
conceived by Executive alone or jointly with others during the Term that relate
to the business of the Company. This assignment shall include (a) the
right to file and prosecute patent applications on such inventions in any and
all countries, (b) the patent applications filed and patents issuing thereon,
and (c) the right to obtain copyright, trademark or trade name protection for
any such work product. Executive shall promptly and fully disclose
all such contributions and inventions to the Company and assist the Company, as
the case may be, in obtaining and protecting the rights therein (including
patents thereon), in any and all countries; provided, however, that said
contributions and inventions shall be the property of the Company, whether or
not patented or registered for copyright, trademark or trade name protection, as
the case may be. Notwithstanding the foregoing, the Company shall not
have any right, title or interest in any work product or copyrightable work
developed outside of work hours and without the use of the Company’s resources
that does not relate to the business of the Company and does not result from any
work performed by Executive for the Company.
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6.3 Unfair
Competition.
6.3.1 Scope of
Covenant. Executive acknowledges that in the course of
employment with the Company, Executive has had access to
and gained knowledge of the trade secrets and other
Confidential Information of the Company;
has had substantial relationships with the Company’s customers; and has
performed services of special, unique, and extraordinary value to the
Company. Therefore, and in consideration of the severance payments
and other benefits described in clauses (b), (c) and (d) of Section 5.3.2, to which severance payments and benefits
Executive would not otherwise be entitled, and as a precondition to Executive
becoming entitled to such severance payments and other benefits under this
Agreement, Executive agrees that notwithstanding any termination or non-renewal
of this Agreement, during any period Executive is employed by the Company and
for a period of one (1) year after termination of employment, Executive shall not,
directly or indirectly, for himself or on behalf of or in conjunction with any
other person or entity, without the prior written consent of the
Board:
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(a)
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work
for, become employed by, or provide services to (whether as an employee,
consultant, independent contractor, officer, director, or board member)
any business that sells, markets, or provides any benefits or services
within any state in which the Company is doing business at the time
Executive ceases to be employed by the Company that are in direct
competition with the benefits or services provided by the Company in such
state, where Executive’s position or service for such business is
competitive with or otherwise similar to any of Executive’s positions or
services for the Company;
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(b)
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induce
or solicit any employee of the Company to leave the employ of the Company,
or recruit or hire any employee or former employee of the Company, unless
such former employee has not been employed by the Company for a period in
excess of six (6) months; provided, however, that
the provisions of this clause (b) shall not apply to any member of
Executive’s immediate family;
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(c)
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call
upon any provider, customer, or agent of the Company about whom Executive
has gained Confidential Information or with whom Executive, by virtue of
his/her employment with the Company, has established a relationship or had
frequent contact, for the purpose of soliciting or selling
benefits or services similar to those benefits or services that the
provider, customer, or agent provides to or purchases from the Company;
provided however, that the provisions of this clause (c) only apply to
those persons or entities who are providers, customers, or agents of the
Company at the time Executive ceases to be employed by the Company or who
were providers, customers, or agents of the Company during the one-year
period prior to the date Executive ceases to be employed by the Company;
or
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(d)
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induce,
solicit, request, or advise any provider, customer, or agent of the
Company about whom Executive has gained Confidential Information or with
whom Executive, by virtue of his/her employment with the Company, has
established a relationship or had frequent contact, to withdraw, curtail,
or cancel its business dealings with the
Company;
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provided, however, that nothing
in this Section 6.3.1 shall be construed to
preclude Executive from making any investment in the securities of any business
enterprise whether or not engaged in competition with the Company, to the extent
that such securities are actively traded on a national securities exchange or in
the over-the-counter market in the United States or on any foreign securities
exchange, but only if such investment does not exceed two percent (2%) of the
outstanding voting securities of such enterprise, provided that such permitted
activity shall not relieve Executive from any other provisions of this
Agreement.
6.3.2 Nondisparagement. Executive
agrees that he will not talk about or otherwise communicate to any third parties
in a malicious, disparaging, or defamatory manner regarding the Company, and
will not make or authorize to be made any written or oral statement that may
disparage or damage the reputation of the Company or their past or present
employees, officers or other representatives.
6.3.3 Reasonableness. It
is agreed by the parties that the foregoing covenants in this Section 6.3 impose a reasonable restraint on Executive in
light of the activities and business of the Company. Executive
acknowledges that the covenants in this Section 6.3
shall not prevent Executive from earning a livelihood upon the termination of
employment hereunder, but merely prevent unfair competition with the Company for
a limited period of time.
6.3.4 Severability. The
covenants in this Section 6.3 are severable and
separate, and the unenforceability of any specific covenant shall not affect the
provisions of any other covenant or of any other provision of this
Agreement. In the event any court of competent jurisdiction shall
determine that any provision of this Section 6.3 is invalid, illegal, or
unenforceable, then it is the intention of the parties that such restrictions be
enforced to the fullest extent that such court deems reasonable, and this
Agreement shall thereby be reformed.
6.3.5 Enforcement by the Company
not Limited. All of the covenants in this Section 6.3 shall be construed as an agreement independent of
any other provision in this Agreement, and the existence of any claim or cause
of action of Executive against the Company, whether predicated in this Agreement
or otherwise, shall not constitute a defense to the enforcement by the Company
of such covenants.
6.4 Breach of Restrictive
Covenants. The parties agree that a breach or violation of
this Article 6 will result in immediate and
irreparable injury and harm to the innocent party, and that the Company shall
have, in addition to any and all remedies of law and other consequences under
this Agreement, the right to seek a temporary, preliminary, or permanent
injunction, specific performance, or other equitable relief to enforce the
obligations hereunder or prevent the violation of the obligations
hereunder. In addition, in the event of an alleged breach or
violation by Executive of the obligations in Section 6.3, the one-year period
shall be tolled until such breach or violation has been cured.
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ARTICLE
7
ARBITRATION
7.1 General. Except
for an action for equitable relief that is permitted to be sought pursuant to
Section 6.4, any controversy,
dispute, or claim between the parties to this Agreement, including any claim
arising out of, in connection with, or in relation to the formation,
interpretation, performance or breach of this Agreement shall be settled
exclusively by arbitration, before a single arbitrator, in accordance with this
Article 7 and the then most applicable rules of the
American Arbitration Association. Judgment upon any award rendered by
the arbitrator may be entered by any state or federal court having jurisdiction
thereof. Such arbitration shall be administered by the American
Arbitration Association. Arbitration shall be the exclusive remedy
for determining any such dispute, regardless of its
nature. Notwithstanding the foregoing, either party may in an
appropriate matter apply to a court for provisional relief, including a
temporary restraining order or a preliminary injunction, on the ground that the
award to which the applicant may be entitled in arbitration may be rendered
ineffectual without provisional relief. Any arbitration shall take
place in Florida.
7.2 Selection of
Arbitrator. In the event the parties are unable to agree upon
an arbitrator, the parties shall select a single arbitrator from a list of nine
arbitrators drawn by the parties at random from the “Independent” (or “Gold
Card”) list of retired judges or, at the option of Executive, from a list of
nine persons (which shall be retired judges or corporate or litigation attorneys
experienced in executive employment agreements) provided by the office of the
American Arbitration Association having jurisdiction over the location agreed
upon in Section 7.1. If the parties are unable to agree upon an
arbitrator from the list so drawn, then the parties shall each strike names
alternately from the list, with the first to strike being determined by
lot. After each party has used four strikes, the remaining name on
the list shall be the arbitrator. If such person is unable to serve
for any reason, the parties shall repeat this process until an arbitrator is
selected.
7.3 Applicability of
Arbitration; Remedial Authority. This agreement to resolve any
disputes by binding arbitration shall extend to claims against any parent,
subsidiary or affiliate of each party, and, when acting within such capacity,
any officer, director, stockholder, employee or agent of each party, or of any
of the above, and shall apply as well to claims arising out of state and federal
statutes and local ordinances as well as to claims arising under the common
law. In the event of a dispute subject to this paragraph the parties
shall be entitled to reasonable discovery subject to the discretion of the
arbitrator. The remedial authority of the arbitrator (which shall
include the right to grant injunctive or other equitable relief) shall be the
same as, but no greater than, would be the remedial power of a court having
jurisdiction over the parties and their dispute. The arbitrator
shall, upon an appropriate motion, dismiss any claim without an evidentiary
hearing if the party bringing the motion establishes that he or it would be
entitled to summary judgment if the matter had been pursued in court
litigation. In the event of a conflict between the applicable rules
of the American Arbitration Association and these procedures, the provisions of
these procedures shall govern.
-15-
7.4 Fees and
Costs. The Company and the Executive shall be responsible for
their own respective costs and fees of the arbitration until a final
determination is made by the arbitrator. The prevailing party in such
arbitration, as determined by the arbitrator, and in any enforcement or other
court proceedings, shall be entitled, to the extent permitted by law, to
reimbursement from the other party for all of the prevailing party’s costs
(including but not limited to the arbitrator’s compensation), expenses, and
attorneys’ fees, subject to the requirement that such costs, expenses and
attorneys’ fees are reasonable, as determined by the arbitrator.
7.5 Award Final and
Binding. The arbitrator shall render an award and written
opinion, and the award shall be final and binding upon the
parties. If any of the provisions of this paragraph, or of this
Agreement, are determined to be unlawful or otherwise unenforceable, in whole or
in part, such determination shall not affect the validity of the remainder of
this Agreement, and this Agreement shall be reformed to the extent necessary to
carry out its provisions to the greatest extent possible and to insure that the
resolution of all conflicts between the parties, including those arising out of
statutory claims, shall be resolved by neutral, binding
arbitration. If a court should find that the arbitration provisions
of this Agreement are not absolutely binding, then the parties intend any
arbitration decision and award to be fully admissible in evidence in any
subsequent action, given great weight by any finder of fact, and treated as
determinative to the maximum extent permitted by law.
ARTICLE
8
MISCELLANEOUS
8.1 Amendments. The
provisions of this Agreement may not be waived, altered, amended or repealed in
whole or in part except by the signed written consent of the parties sought to
be bound by such waiver, alteration, amendment or repeal.
8.2 Entire
Agreement. This Agreement, the Indemnification Agreement, any
agreements pertaining to restricted stock and options and any agreements
pertaining to any other equity awards granted to Executive constitute the total
and complete agreement of the parties with respect to the subject matter hereof
and thereof and supersede all prior and contemporaneous understandings and
agreements heretofore made, and there are no other representations,
understandings or agreements. For the avoidance of doubt, this Agreement shall,
from and after the Effective Date, supersede the Existing
Agreement.
8.3 Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original, but all of which shall together constitute one and the same
instrument.
-16-
8.4 Severability. Each
term, covenant, condition or provision of this Agreement shall be viewed as
separate and distinct, and in the event that any such term, covenant, condition
or provision shall be deemed by an arbitrator or a court of competent
jurisdiction to be invalid or unenforceable, the court or arbitrator finding
such invalidity or unenforceability shall modify or reform this Agreement to
give as much effect as possible to the terms and provisions of this
Agreement. Any term or provision which cannot be so modified or
reformed shall be deleted and the remaining terms and provisions shall continue
in full force and effect.
8.5 Waiver or
Delay. The failure or delay on the part of the Company or
Executive to exercise any right or remedy, power or privilege hereunder shall
not operate as a waiver thereof. A waiver, to be effective, must be
in writing and signed by the party making the waiver. A written
waiver of default shall not operate as a waiver of any other default or of the
same type of default on a future occasion.
8.6 Successors and
Assigns. This Agreement shall be binding on and shall inure to
the benefit of the parties to it and their respective heirs, legal
representatives, successors and assigns, except as otherwise provided
herein. Neither this Agreement nor any of the rights, benefits,
obligations or duties hereunder may be assigned or transferred by Executive
except by operation of law. Without the prior written consent of
Executive, this Agreement shall not be assigned by the Company. The
Company shall require any successor (whether direct or indirect by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
and/or assets of the Company to assume expressly and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform if no such succession had taken place.
8.7 Necessary
Acts. Each party to this Agreement shall perform any further
acts and execute and deliver any additional agreements, assignments or documents
that may be reasonably necessary to carry out the provisions or to effectuate
the purpose of this Agreement.
8.8 Governing
Law. This Agreement shall be governed by and interpreted,
construed and enforced in accordance with the laws of the State of
Florida.
8.9 Notices. All
notices, requests, demands and other communications to be given under this
Agreement shall be in writing and shall be deemed to have been duly given on the
date of service, if personally served on the party to whom notice is to be
given, or 48 hours after mailing, if mailed to the party to whom notice is to be
given by certified or registered mail, return receipt requested, postage
prepaid, and properly addressed to the party at his address set forth as follows
or any other address that any party may designate by written notice to the other
parties:
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To
Executive:
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Address
on file with the Company
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To
the Company:
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New Generation Biofuels Holdings, Inc. |
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0000
Xxxxxxx Xxxxxxxxx, Xxxxx 0000
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Xxxx
Xxxx, Xxxxxxx 00000
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| Attn: Chief Executive Officer | |
| Facsimile: (000) 000-0000 |
-17-
8.10 Headings and
Captions. The headings and captions used herein are solely for
the purpose of reference only and are not to be considered as construing or
interpreting the provisions of this Agreement.
8.11 Construction. All
terms and definitions contained herein shall be construed in such a manner that
shall give effect to the fullest extent possible to the express or implied
intent of the parties hereby.
8.12 Counsel. Executive
has been advised by the Company that he should consider seeking the advice of
counsel in connection with the execution of this Agreement and the other
agreements contemplated hereby and Executive has had an opportunity to do
so. Executive has read and understands this Agreement, and has sought
the advice of counsel to the extent he has determined appropriate.
8.13 Withholding of
Compensation. Executive hereby agrees that the Company may
deduct and withhold from the compensation or other amounts payable to Executive
hereunder or otherwise in connection with Executive’s employment any amounts
required to be deducted and withheld by the Company under the provisions of any
applicable Federal, state and local statute, law, regulation, ordinance or
order.
-18-
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered as of the date first above written.
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By:
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/s/ Xxxx X. Xxxx | |
| Name: Xxxx X. Xxxx | |||
| Title: Director | |||
| EXECUTIVE | |||
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/s/ Xxx X. Xxxxx | ||
| Xxx X. Xxxxx | |||
-19-
EXHIBIT
A
FORM OF WAIVER AND RELEASE
AGREEMENT
THIS WAIVER AND RELEASE AGREEMENT (this
“Release”) is entered into as of [______________] (the “Effective
Date”), by [Name] (“Executive”) in consideration of
severance pay and benefits
(the “Severance
Payment”) provided to Executive by New
Generation Biofuels Holdings, Inc., a Florida corporation (the “Company”), pursuant to clauses (b) and (c) of
Section 5.3.2 of the Amended and Restated Employment Agreement by and
between the Company and
Executive (the “Employment
Agreement”).
1. Waiver
and Release. Subject to the last sentence of the
first paragraph of this Section 1, Executive, on his own behalf and on
behalf of his heirs, executors, administrators, attorneys and assigns, hereby unconditionally and
irrevocably releases, waives and forever discharges the Company and each of its
affiliates, parents, successors, predecessors, and the subsidiaries, directors,
owners, members, shareholders, officers, agents, and employees of the Company and its affiliates,
parents, successors, predecessors, and subsidiaries (collectively, all of the
foregoing are referred to as the “Employer”), from any and all causes of action,
claims and damages, including attorneys’ fees, whether known or unknown, foreseen or unforeseen,
presently asserted or otherwise arising through the date of his signing of this
Release, concerning his employment or separation from
employment. Subject to the last sentence of the first paragraph of
this Section 1, this Release includes, but is not
limited to, any payments, benefits or damages arising under any federal law
(including, but not limited to, Title VII of the Civil Rights Act of 1964, the
Age Discrimination in Employment Act, the Employee Retirement Income Security Act of 1974, the Americans
with Disabilities Act, Executive Order 11246, the Family and Medical Leave Act,
and the Worker Adjustment and Retraining Notification Act, each as amended); any
claim arising under any state or local laws, ordinances or regulations (including, but not
limited to, any state or local laws, ordinances or regulations requiring that
advance notice be given of certain workforce reductions); and any claim arising
under any common law principle or public policy, including, but not limited to, all suits in tort or
contract, such as wrongful termination, defamation, emotional distress, invasion
of privacy or loss of consortium. Notwithstanding any other
provision of this Release to the contrary, this Release does not encompass, and
Executive does not release, waive or discharge, the obligations of the Company
(a) to make the payments and provide the other benefits contemplated by the
Employment Agreement, or (b) under any restricted stock agreement, option
agreement or other agreement pertaining to Executive’s equity ownership, or (c)
under any indemnification or similar agreement with Executive.
Executive understands that by signing
this Release, he is not waiving any claims or administrative charges which
cannot be waived by law. He is waiving, however, any
right to monetary recovery or individual relief should any federal, state or
local agency (including the Equal Employment Opportunity Commission) pursue any
claim on his behalf arising out of or related to his employment with and/or separation from employment with
the Company.
-20-
Executive further agrees without any
reservation whatsoever, never to xxx the Employer or become a party to a lawsuit
on the basis of any and all claims of any type lawfully and validly released in
this
Release.
2. Acknowledgments. Executive is signing this Release
knowingly and voluntarily. He acknowledges that:
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(a)
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He is hereby advised in writing to
consult an attorney before signing this Release
Agreement;
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(b)
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He has relied solely on his own
judgment and/or that
of his attorney regarding the consideration for and the terms of this
Release and is signing this Release Agreement knowingly and voluntarily of
his own free will;
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(c)
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He is not entitled to the
Severance Payment unless he agrees to and honors the terms of this
Release;
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(d)
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He has been given at least
twenty-one (21)
calendar days to
consider this Release, or he or she expressly waives his right to have at
least twenty-one
(21) days to consider this
Release;
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(e)
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He may revoke this Release
within seven (7)
calendar days after signing it by submitting a written notice of
revocation to the Employer. He further understands that this
Release is not effective or enforceable until after the seven (7) day
period of revocation has expired without revocation, and that if he or she
revokes this Release within the seven (7) day revocation period, he will
not receive the Severance
Payment;
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(f)
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He has read and understands the
Release and further understands that, subject to the limitations contained
herein, it includes a
general release of any and all known and unknown, foreseen or unforeseen
claims presently asserted or otherwise arising through the date of his
signing of this Release that he may have against the Employer;
and
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(g)
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No statements made or conduct by the Employer has in any
way coerced or unduly influenced him or her to execute this
Release.
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3. No
Admission of Liability. This Release does not constitute an
admission of liability or wrongdoing on the part of the Employer, the Employer
does not admit there has
been any wrongdoing whatsoever against Executive, and the Employer expressly
denies that any wrongdoing has occurred.
4. Entire
Agreement. There are no other agreements of any
nature between the Employer and Executive with respect to the matters discussed in this Release
Agreement, except as expressly stated herein, and in signing this Release,
Executive is not relying on any agreements or representations, except those
expressly contained in this Release.
-21-
5. Execution. It is not necessary that the Employer sign this Release
following Executive’s full and complete execution of it for
it to become fully effective and enforceable.
6. Severability. If any provision of this Release is
found, held or deemed by a court of competent jurisdiction to be void, unlawful or unenforceable
under any applicable statute or controlling law, the remainder of this Release
shall continue in full force and effect.
7. Governing
Law. This Release shall be governed by the
laws of the State of Florida, excluding the choice of law rules
thereof.
8. Headings. Section and subsection headings
contained in this Release are inserted for the convenience of reference
only. Section and subsection headings shall not be deemed to be a
part of this Release for any purpose, and they shall not in any way define or
affect the meaning, construction or scope of any of the provisions
hereof.
IN
WITNESS WHEREOF, the undersigned has duly executed this Agreement as of the day
and year first herein above written.
| EXECUTIVE: | |||
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-22-
