SEVERANCE AGREEMENT, WAIVER AND RELEASE
Exhibit
10.2
SEVERANCE
AGREEMENT, WAIVER AND RELEASE
This
Severance Agreement, Waiver and Release (the “Agreement”) is entered into
between Evergreen Energy Inc. (the “Company”), and Xxxxx X. Xxxxxxx (the
“Employee”). The “Effective Date” of this Agreement is as defined
below in Paragraph 7.
In
consideration of the conditions, covenants and agreements set forth below, for
good and valuable consideration, the sufficiency of which is hereby
acknowledged, the Company and the Employee (collectively called the “Parties”)
agree as follows:
1. The
Employee was employed by the Company as President and CEO until his retirement
from the Company on May 31, 2009. The purpose of this Agreement is to
settle all issues relating to his employment and retirement from the
Company.
2. The
Company and the Employee, each without admitting any liability or wrongdoing,
desire to resolve amicably, and in the spirit of compromise, all issues and
differences between them in accordance with and in consideration of the terms of
this Agreement.
3. The
Employee understands and acknowledges that whether or not he signs this
agreement, he is entitled to and has received any earned but unpaid salary
through May 31, 2009, commissions, vacation pay, paid time off, expenses, or
other amounts to which the Employee already is entitled in accordance with the
terms of the Company’s established policy. If the Employee has any
remaining expenses for which he has not yet been reimbursed, he agrees to submit
his claim, if any, for such expenses by June 30, 2009, and the Company agrees to
pay such expenses within one calendar week of the date the claim is received,
subject to approval of the amount and appropriateness of such expenses in
accordance with established company policy.
4. Severance
Payment. Pursuant to approval from the Company’s Board of
Directors, Company agrees to pay the Employee a “Severance Payment” as
follows:
a. Commencing
on June 1, 2009, an amount equivalent to twelve (12) months of salary at his
regular salary rate, less applicable withholding for federal and state taxes and
other deductions required by law and less Eighty Five Thousand Dollars ($85,000)
Employee is expected to receive for service during the year on the Company’s
Board of Directors. The total amount to be received during the twelve
(12) month period is Two Hundred Fifteen Thousand Dollars ($215,000); provided
however, should Employee leave the Board of Directors, Eighty Five Thousand
Dollars ($85,000), less any Board fees received to date (not including fees for
attendance at Board Committee meetings), will be added to the payments over the
remaining period of the twelve (12) month payout. The parties agree
that when the last payment is made to Employee, he shall have received over the
twelve (12) months a total of Three Hundred Thousand Dollars
($300,000). The Company will pay this part of the Severance Payment
(not including the Board fees which shall be paid at the same time as other
Board members are paid) in the same manner as a regular employee through the
regularly scheduled payroll process.
b. Employee
will continue to receive health insurance for eighteen (18) months commencing on
June 1, 2009. To receive his health insurance, Employee is
responsible for completing and delivering the COBRA Agreement according to the
instructions he receives with the COBRA package.
c. Except for
the stock provided for in the Employment Agreement, which will be forfeited when
the Employment Agreement terminates (see section 16 below), all
other stock and/or options which have been granted to Employee and which have
not yet vested will vest on June 1, 2009.
5. Mutual Waiver and Release of
Claims. In exchange for this Agreement and in consideration of the
Severance Payment provided by Paragraph 4 above, which is in addition to
anything of value to which the Employee already is entitled, the Employee hereby
irrevocably and unconditionally releases and forever discharges the Company and
its officers, members, agents, directors, shareholders, supervisors, employees,
representatives, affiliates, and their successors and assigns, and all persons
acting by, through, under, or in concert with any of them, from any and all
charges, complaints, demands, damages, costs, expenses, causes of action,
action, rights, benefits, complaints, claims and liabilities of any kind or
nature whatsoever, known or unknown, suspected or unsuspected, certain or
contingent, which the Employee at any time had or claimed to have regarding
events that occurred up to and including the Effective Date of this Agreement,
including but not limited to any and all such claims arising out of, related to,
or in any manner incidental to the Employee’s employment with the Company or his
separation from employment.
Similarly, in consideration of the
rights and obligations created by this Agreement, the Company, and its officers,
members, agents, directors, shareholders, supervisors, employees,
representatives, affiliates, and their successors and assigns, and all persons
acting by, through, under, or in concert with the Company, hereby irrevocably
and unconditionally release and forever discharge the Employee and his heirs,
successors, and assigns from any and all charges, complaints, demands, damages,
costs, expenses, causes of action, action, rights, benefits, complaints, claims
and liabilities of any kind or nature whatsoever, known or unknown, suspected or
unsuspected, certain or contingent, which the Company at any time had or claimed
to have regarding events that occurred up to and including the Effective Date of
this Agreement.
6. Specific Claims
Released. This release includes, but is not limited to, all
claims arising under any federal, state or municipal law, including the
Americans with Disabilities Act, Title VII of the Civil Rights Act of 1964,
Equal Pay Act, Fair Labor Standards Act, Family and Medical Leave Act, Age
Discrimination in Employment Act, National Labor Relations Act, Occupational
Safety and Health Act, Employee Retirement Income Security Act (except as
specified below in this section), Colorado Wage Claim Act, the Colorado
Anti-Discrimination Act, and other statutes and the common law of the state of
Colorado, including claims for tort, breach of express or implied employment
contract, wrongful discharge, intentional infliction of emotional distress, and
defamation or injuries
incurred on the job or upon separation from employment. The Parties
understand and agree that they are waiving and releasing any and all claims that
they now have or might claim to have against each other based on events up to
the Effective Date of this Agreement, regardless of their nature or origin, and
the fact that such claim is not listed above does not mean it is not included in
this release.
This release does not preclude an action by either party to
enforce the specific terms of this Agreement. It does not preclude workers’
compensation claims, if any, that have already been filed or that pertain to
on-the-job injuries that have already been reported. This release
does not preclude claims for benefits in which the Employee has become vested
under the Employee Retirement Income Security Act.
7. ADEA Release; Effective
Date. The Employee acknowledges, understands, and agrees as
follows:
a. He
has carefully read and fully understands all of the provisions of this
Agreement, including the release provisions.
b. He
knowingly and voluntarily agrees to all of the terms set forth in this
Agreement, and he intends to be legally bound by them.
c. Through
this Agreement, he is releasing the Company from any and all claims, including
claims under the Age Discrimination in Employment Act (ADEA) and all other
claims described above in Paragraphs 5 and 6 that he may have against
the Company and the other persons described above.
d. He
understands that rights or claims under the ADEA that may arise after the
Effective Date of this Agreement are not waived.
e. He
has been advised to, and has had the opportunity to, consult with an attorney
before executing this Agreement.
f. By
receiving the Severance Payment specified in this Agreement, he is receiving
valuable consideration in addition to anything to which he already is
entitled.
g. He
has been given the opportunity to have up to twenty-one (21) days in which to
consider this Agreement before signing it, and if he chooses to sign it before
the 21-day period has expired, he does so knowingly, voluntarily, and without
any compulsion from the Company or anyone else.
h. He
has seven (7) days after signing this Agreement to revoke it. This
Agreement will become effective as to both Parties upon the expiration of the
seven-day revocation period (the
“Effective Date”), if the
Employee has not revoked this Agreement. To be effective, revocation
must be in writing and received by Xxxxxxx X. Xxxxxxxx, General Counsel of the
Company, within the seven-day period. The notice of revocation must
be sent or delivered by letter or transmitted via facsimile to Xx. Xxxxxxxx at
the Company’s office in Denver, Colorado, and must be received by him within the
specified period.
9. Covenant
Not to Xxx. The Parties expressly covenant and agree never to
institute or participate in any suit or action, at law or in equity,
arbitration, administrative proceeding, or other proceeding, against each other
by reason of the claims released in this Agreement. This covenant and
agreement specifically includes, without limitation, administrative actions,
arbitrations, actions in court of law and equity, class actions, and any type of
action or proceeding that may be filed in the future, but does not include an
action or claim to enforce the rights and obligations created by this
Agreement.
10. Non-Disparagement. The
Employee agrees that he will not make any negative, disparaging, derogatory, or
adverse statements, remarks, comments, or other communications, in any form or
format, to any third party regarding the Company; any of its officers,
directors, employees, or agents; or any of its products. The Company
agrees that its officers, directors, and agents will not make any negative,
disparaging, derogatory, or adverse statements, remarks, comments, or other
communications, in any form or format, to any third party regarding the
Employee.
11. Non-Disclosure. The
Employee agrees to keep the circumstances regarding the negotiations, existence,
conditions, and terms of this Agreement strictly confidential. The
Employee agrees that he will not disclose any of these items to any person,
including but not limited to any former, current, or prospective employee of the
Company, with the exceptions that the Employee may disclose the terms of this
Agreement to his financial advisor, attorney(s), accountant, family, or by order
of, or in response to inquiry by, a court of law or administrative
agency. It is further agreed that if the Employee discloses the terms of
this Agreement to any family member, the Employee will be responsible for any
breach of this Agreement by that family member. It is expressly agreed that this
Non-Disclosure provision is an essential and material provision of this
Agreement.
12. Confidential
Information. The Employee agrees that he will not at any time,
during or after the termination of his/her employment, reveal, divulge, or make
known to any person any confidential or proprietary information (“Confidential
Information”) that was made known to him as a result of his/her employment with
the Company. “Confidential Information” shall mean any trade secret
or information of a secret, proprietary, or confidential nature to the Company
and its business operations that the Employee acquired during and as a result of
his employment, including but not limited to all methods, processes, products,
techniques, know-how, marketing strategies and plans, data, financial statements
and projections, business plans, inventions, improvements, or discoveries
(whether or not patentable or copyrightable), price lists, forecasts, customer
lists, customer files, and
customer requirements, unless such information is in the public domain to such an extent as to be readily available to competitors. This section shall survive the termination of this Agreement.
13. Breach of Provisions by
Employee. The Employee and the Company enter into this
Agreement with the understanding that all of the terms and provisions of this
Agreement, including
but not limited to Paragraphs 5 through 11 inclusive, are material and important
terms of this Agreement, and that the amount of the Severance Payment made to
the Employee has been based in part on the value to the Company of these
provisions. In the event that the Employee breaches any of the
provisions of Paragraphs 5 through 11, the Company, in addition to all remedies
available to it at law and equity, shall be released from its obligation to make
any further payments or installments of the Severance
Payment. However, in such event, the Employee’s covenants and
obligations in this Agreement shall remain in full force and
effect. Further, the Employee agrees and acknowledges that any
violation by him/her of Paragraphs 5 through 11 will result in irreparable
damage to the Company and, therefore, the Company may obtain injunctive or other
equitable relief for any breach or threatened breach of these Paragraphs, in
addition to any other remedies available to the Company.
14. Non-Admission of
Liability. This Agreement is not, and shall not be construed
as, an admission by either party of any wrongdoing or liability, or as an
admission by either party of any violation of the rights of any person, or of
any violation of any order, law, statute, duty, or contract.
15. Return of
Property. The Employee acknowledges that he has returned to
the Company all files and documents (whether stored electronically or
otherwise), records, credit cards, keys, electronic access pass or passes,
parking pass, computer equipment, telephones, and other property of the
Company. To the extent that he has not returned all such
property yet, he agrees to return any and all remaining property by June 30,
2009.
16. Employment
Agreement. The Employment Agreement between you and KFx Inc.,
(predecessor in name to Evergreen Energy Inc.), dated October 24, 2005 is hereby
terminated and shall have no further force or effect.
17. Personnel File and Release
of Information. The Parties agree that a copy of this
Agreement shall be maintained in the Employee’s personnel file, and that the
Company shall respond to any inquiries concerning his employment by providing a
neutral reference verifying only his position, dates of employment, final salary
rate and that his position at the Company had been eliminated.
18. Unemployment Claims.
The Company agrees not to contest any claim for unemployment benefits made by
the employee to the State of Colorado and agrees that a claim for unemployment
benefits would not violate the release provisions of Paragraphs 5 through
8. The parties understand that despite the Non-Disclosure provisions
of Paragraph 11 of this Agreement, the
Employee may provide, or
may be required by the unemployment agency to provide, information regarding the
existence and amount of the Severance Payment provisions of this Agreement in
connection with his claim for unemployment benefits.
19. Authority and
Non-Assignment. The Parties represent and warrant that they
have full authority to enter into this Agreement and that they have not assigned
or otherwise transferred,
to any other person or entity, any interest in any claim, demand, action and/or
cause of action that they have, may have, or may claim to have against each
other.
20. Accord and
Satisfaction. The Parties expressly acknowledge that the
Severance Payment made pursuant to Paragraph 4 and the promises made herein
constitute a full accord and satisfaction of any and all claims between the
Parties.
21. Warranties and
Acknowledgments. The Parties expressly warrant and represent
to each other the following: (a) that no promise or inducement
has been offered except as expressly provided in this Agreement; (b) that
this Agreement is not in violation of or in conflict with any other agreement of
the Parties; and (c) that the Parties have had the opportunity to resolve
all questions concerning the meaning, legal nature, and binding effect of this
Agreement with counsel of their choosing.
22. Cooperation with the
Company. The Employee agrees to make himself available at
reasonable times by telephone or otherwise to assist the management of the
Company in connection with their requests, investigations, or inquiries
concerning events or matters relevant to the period of time the Employee was
with the Company and related to the scope of his duties. The Employee
shall fully cooperate with the Company in the defense or prosecution of any
claims or demands related to the period of time he was with the
Company. This cooperation would include voluntarily submitting to
interviews, providing information, or appearing in court or discovery
proceedings as requested by attorneys or other authorized representatives of the
Company.
23. Miscellaneous.
a. Successors and
Assigns. This Agreement shall be binding in all respects upon,
and shall inure to the benefit of, the heirs, successors, and assigns of the
Parties.
b. Severability. In
the event that a court of competent jurisdiction enters a final judgment holding
invalid any material provision of this Agreement, the remainder of this
Agreement shall be fully enforceable.
c. Integration. This
Agreement constitutes the entire agreement of the Parties and a complete merger
of prior negotiations and agreements. This Agreement shall not be modified
except in writing signed by the Parties or their authorized
representatives.
d. Waiver. No
term or condition of this Agreement shall be deemed to have been waived, nor
shall there be an estoppel against the enforcement of any provision of this
Agreement, except in a written document signed by the party charged with the
waiver or estoppel. No written waiver shall be deemed a continuing
waiver unless specifically stated herein, and the written waiver shall operate
only as to the specific term or condition waived.
e. Mistake. The Company and the Employee each forever waive all rights to assert that this Agreement, or any provision of it, was the result of a mistake in law or in fact. Further, they forever waive all rights to assert that any or all of the legal theories or factual assumptions used for negotiating purposes are for any reason inaccurate or inappropriate, or that this Agreement is incomplete or otherwise unenforceable, in any respect.
f. Fees and
Costs. In any action to enforce, interpret, or seek damages
for violation of this Agreement, the prevailing party shall recover all
reasonable attorney fees, litigation expenses, and court costs.
g. Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado and, where applicable, of the
United States.
h. Counterparts;
Facsimile. This Agreement may be signed in counterparts, and
it shall be as effective when counterparts have been executed by the Parties as
if each party had signed the same counterpart. This Agreement
may be delivered by facsimile.
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Xxxxx
X. Xxxxxxx
/s/
Xxxxx X. Xxxxxxx
Signature
Dated:
May 22, 2009
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By
/s/ Xxxxxx X. Xxxxxx,
Xx.
Name:
Xxxxxx X. Xxxxxx, Xx.
Dated:
May 22, 2009
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