FUEL NATION INC.
Employment Agreement
Xxxxxxxxxxx X. Xxxxxxxxx
THIS EMPLOYMENT AGREEMENT is made as of this 1st day of April, 2001,
by and between FUELNATION INC., a Florida corporation (the "COMPANY") whose
current main office address is: 0000 Xxxxx Xxxxx Xxxxxxx, Xxxxx 000, Xxxx Xxxxx,
Xxxxxxx 00000, and, Xxxxxxxxxxx X. Xxxxxxxxx, whose current mailing address is
00000 Xxxxx Xxxx 00xx Xxxxxx, Xxxxxxxx, Xx 00000. (the "EXECUTIVE"). In
consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. EMPLOYMENT, POSITION AND DUTIES Upon the terms and conditions set
forth herein, the Company agrees to employ the Executive, and the Executive
hereby accepts employment with the Company in the capacity of the "Position" and
for the term of the "Employment Period" as defined on the annexed Schedule of
Terms of Employment which is fully incorporated into the text hereof by this
reference. During the Employment Period, Executive shall perform the normal
duties, responsibilities and authority of such Position which shall expressly
include those duties and responsibilities set forth on the annexed Schedule of
Terms of Employment ("Duties and Responsibilities") subject to the power of the
Company's board of directors (the "Board") to expand or limit such duties,
responsibilities and authority and to override actions of officers of the
Company. During the Employment Period, Executive shall report to the Board, or
the Chief Executive Officer, at the Board's election, and shall devote his best
efforts and his full business time and attention to the business and affairs of
the Company, excluding the permitted vacation time and time-off for sickness and
other absences as set forth on the annexed Schedule of Terms of Employment.
Executive shall perform his Duties and Responsibilities to the Company hereunder
to the best of his abilities in a diligent, trustworthy, businesslike and
efficient manner. Nothing in this paragraph shall prohibit Executive from making
passive investments that are not otherwise prohibited in this Agreement, or as
otherwise provided for in the Schedule of Terms of Employment recited below.
2. COMPENSATION AND BENEFITS.
(a) BASE SALARY. During the Employment Period, Executive's initial
base salary shall be the Initial Base Salary set forth in the Schedule of Terms
of Employment per annum or such higher rate as the Board may designate from time
to time (as so adjusted, the "BASE SALARY"), which Base Salary shall be payable
in regular installments in accordance with the Company's general payroll
practices. Failure of Company to promptly pay Executive the regular installments
or bonuses in accordance with the Company's general payroll practices shall be
considered a Termination of Executive without Cause. In addition, during the
Employment Period, Executive shall be entitled to participate in all of the
Company's Executive benefit programs for which similar Executives of the Company
are generally eligible, or as otherwise provided for in the Schedule of Terms of
Employment recited below.
(b) EXPENSES. During the Employment Period, the Company shall
reimburse Executive for all reasonable expenses incurred by him in the course of
performing his duties and responsibilities under this Agreement which are
consistent with the Company's policies in effect from time to time with respect
to travel, entertainment and other business expenses, subject to the Company's
requirements with respect to approval, reporting and documentation of such
expenses.
(c) BONUS. The Board shall develop and adopt a bonus plan which the
Board believes to be customary for businesses in the Company's industry for an
Executive in the position of the Executive (the "Bonus Plan"). In addition to
the Base Salary, the Board shall award a bonus to Executive in accordance with
the Bonus Plan following the end
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of each fiscal year during the Employment Period based upon Executive's
performance and the Company's operating results during such year, or as
otherwise provided for in the Schedule of Terms of Employment.
(d) All amounts payable to Executive as compensation hereunder shall
be subject to customary withholding by the Company.
3. EMPLOYMENT PERIOD. The term of the employment hereunder shall
begin on the "Begin Date" and shall end on the "End Date" as set forth on the
annexed Schedule of Terms of Employment (the "Employment Period") provided that,
the Employment Period shall terminate prior to its expiration upon the
following; (i) the Employment Period shall terminate immediately upon the
effective date of the Executive's resignation, death or permanent mental or
physical disability or incapacity (as determined by the Board in its good faith
judgment); (ii) the Employment Period may be terminated by the Company at any
time prior to such date for Cause (as defined below) or without Cause for any
reason or no reason whatsoever. No later than 150 days prior to the expiration
of each Employment Period, shall automatically be extended for successive
one-year terms following the expiration of the initial Employment Period, and on
each anniversary thereafter, unless terminated sooner pursuant to the provisions
hereof, or unless the Company gives written notice to the Executive within 150
days prior to the expiration of the Employment Period including any renewal
periods thereafter stating its election not to extend the Employment Period for
any additional term thereafter. Except as otherwise provided herein, any
termination of the Employment Period by the Company shall be effective as
specified in a written notice from the Company to Executive. Executive shall
notify the Company at least 60 days prior to the effective date of Executive's
resignation. Except as otherwise expressly provided herein, all of Executive's
rights to salary, bonuses, fringe benefits and other compensation hereunder
which accrue or become payable after the termination or expiration of the
Employment Period shall cease upon such termination or expiration, other than
those expressly required under COBRA. The Company may offset any amounts
Executive owes it (assuming the Executive has outstanding borrowed cash funds
from Company) against any amounts it owes Executive hereunder.
For purposes of this Agreement, "Cause" shall mean (i) the commission
of any felony or any crime involving moral turpitude, or the commission of any
act or omission involving dishonesty or fraud with respect to the Company or any
of its affiliates or any of its or their customers or suppliers, (ii) reporting
to work under the influence of alcohol or illegal drugs or drug or alcohol abuse
(whether or not at the workplace), (iii) conduct causing the Company or any of
its affiliates substantial public disgrace or disrepute or economic harm, (iv)
substantial and repeated failure to perform duties as reasonably directed by the
Board, (v) gross negligence or willful misconduct with respect to the Company or
any of its affiliates or (vi) any material breach of this Agreement or any other
agreement between the Company and Executive (which, in the case of clause (iv),
(v) or (vi) above, is not cured to the Board's reasonable satisfaction within 10
days after written notice thereof from the Board to Executive if the Board
determines in its reasonable discretion that any such matter is subject to
cure).
Upon expiration of the Employment provided or any subsequent renewal
without further extension or if the Employment Period is terminated by the
Company for Cause, Executive shall only be entitled to receive his Base Salary
through the date of termination or expiration and shall not be entitled to any
other salary, compensation or benefits thereafter, and the Company expressly
reserves and retains all other rights and remedies. If the Employment Period is
terminated by the Company due to death, disability or without Cause, Executive
shall be entitled to continue to receive his Base Salary payable in regular
installments for the period set forth on Schedule of Employment Terms, (the
"Severance Period") if and only if the Executive has executed (except in the
case of Executive's death) and delivered to the Company a general release of all
claims against the Company and its stockholders, directors and Executives in
form and substance satisfactory to the Company and only so long as Executive has
not breached and during the Severance period does not breach the provisions of
paragraphs 4, 5 and 6 hereof, which shall extend beyond the Employment Period
and shall survive termination or expiration of this Agreement.
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4. CONFIDENTIAL INFORMATION. Executive acknowledges that the
information, observations and data (including trade secrets) business practices,
methods, sources, contacts and the identities and telephone numbers of
customers, suppliers, vendors, agents and other contacts obtained by him while
employed by the Company (including those obtained while employed by the Company
prior to the date of this Agreement) concerning the business or affairs
of the Company or any of its affiliates ("Confidential Information") are the
property of the Company or such affiliate. Therefore, Executive agrees that he
shall not disclose to any unauthorized person or use for his own purposes any
Confidential Information without the prior consent of the Board or the Chief
Executive Officer, unless and to the extent that the Confidential Information
becomes generally known to and available for use by the public in the same form
or compilation, other than as a result of Executive's acts or omissions, phone
books, logs, Rolodexes, calendars. Executive shall deliver to the Company at the
termination or expiration of the Employment Period, or at any other time the
Company may request, all memoranda, notes, plans, records, reports, computer
tapes, printouts and software and other documents and data in whatever form (and
all copies and reproductions thereof) embodying or relating to the Confidential
Information, Work Product (as defined below) or the business of the Company or
its affiliates which he may then possess, have access to or have under his
control.
5. INVENTIONS AND PATENTS. Executive acknowledges that all
inventions, innovations, improvements, developments, methods, designs, analysis,
drawings, reports and all similar or related information (whether or not patent
able) which relate to the Company's or its affiliates' actual or anticipated
business, research and development or existing or future products or services
and which are conceived, developed or made by Executive while employed by the
Company (including those obtained while employed by the Company prior to the
date of this Agreement) ("Work Product") belong to the Company are works for
hire and any proprietary rights which the Executive might have under the law or
otherwise are hereby expressly assigned to the Company. Executive shall promptly
disclose such Work Product to the Board and, at the Company's expense, perform
all actions reasonably requested by the Board (whether during or after the
Employment Period) to assign, establish and confirm such ownership (including,
without limitation, executing any assignments, consents, powers of attorney and
other instruments).
6. ENFORCEMENT. If, at the time of enforcement of any provision
hereof by the Company, a court of competent jurisdiction shall hold that the
restrictions stated therein are unreasonable under circumstances then existing,
the parties agree that the maximum duration, scope or area reasonable under such
circumstances shall be substituted for the stated duration, scope or area and
that the court shall be allowed and directed to revise the restrictions
contained therein to cover the maximum period, scope and area permitted by law.
Because Executive's services are unique and because Executive has access to
Confidential Information and Work Product, the parties hereto agree that money
damages would not be an adequate remedy for any breach of this Agreement.
Therefore, in the event of the breach or a threatened breach by Executive of
this Agreement, the Company, in addition and supplementary to other rights and
remedies existing in its favor, shall be entitled to specific performance and/or
injunctive or other equitable relief from any court in order to enforce or
prevent any violations of the provisions hereof (without posting a bond or other
security). In addition, in the event of an alleged breach or violation by
Executive, the Non-compete Period shall be tolled until such breach or violation
has been duly cured. Executive acknowledges that the restrictions contained
herein are reasonable and that he has reviewed the provisions of this Agreement
with his legal counsel.
7. REPRESENTATIONS AND WARRANTIES. Executive hereby represents and
warrants to the Company that (i) the execution, delivery and performance of this
Agreement by Executive do not and shall not conflict with, breach, violate or
cause a default under any contract, agreement, instrument, order, judgment or
decree to which Executive is a party or by which he is bound, (ii) Executive is
not a party to or bound by any employment agreement, non-compete agreement or
confidentiality agreement with any other person or entity and (iii) upon the
execution and delivery of this Agreement by the Company, this Agreement shall be
the valid and binding obligation of Executive, enforceable in accordance with
its terms. The Company hereby represents and warrants to Executive that (i) the
execution, delivery and performance of this Agreement has been duly authorized
by the Company and does not and shall not conflict with, breach, violate or
cause a default under any contract, agreement, instrument, order, judgment or
decree to which the Company is a party or by which it is bound and (ii) upon the
execution and delivery of this Agreement by Executive, this Agreement shall be
the valid and binding obligation of the Company, enforceable against the Company
in accordance with its terms. Executive hereby acknowledges and represents that
he has consulted with independent legal counsel regarding his rights and
obligations under this Agreement and that he fully understands the terms and
conditions contained herein.
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8. SURVIVAL. 4 through 19 shall survive and continue in full force
in accordance with their terms notwithstanding the expiration or termination of
the Employment Period.
9. NOTICES. Any notice given or required under this Agreement shall
be in writing and shall be either personally delivered, sent by reputable
overnight courier service or mailed by first class registered mail, return
receipt requested, if to the Executive to the address set forth on the annexed
Schedule of Terms of Employment, and if to the Company to the address set forth
in the preamble hereof with a copy to each of: Xxxxx Xxxxxxxxx and the Board of
Directors of FuelNation, whose address is1700 X. Xxxxx Xxxxxxx, Xxxxx 000, Xxxx
Xxxxx, Xxxxxxx, or such other address or to the attention of such other person
as either party shall have specified by prior written Notice. Any Notice under
this Agreement shall be deemed to have been given (i) one business day after
receipt by recipient, by overnight courier or by first class registered mail.
10. SEVERABILITY. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any action in any other jurisdiction, but this Agreement
shall be reformed, construed and enforced in such jurisdiction as if such
invalid, illegal or unenforceable provision had never been contained herein.
11. COMPLETE AGREEMENT; HEADINGS. This Agreement, those documents
expressly referred to herein and other documents of even date herewith embody
the complete agreement and understanding among the parties and supersede and
preempt any prior understandings, agreements or representations by or among the
parties, written or oral, which may have related to the subject matter hereof in
any way. Captions, headings and sections are used for convenience purposes only
and shall not construed to limit or expand the language of any provision hereof
or the entire Agreement
12. NO STRICT CONSTRUCTION. The language used in this Agreement
shall be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction shall be applied against any
party.
13. COUNTERPARTS. This Agreement may be executed in separate
counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.
14. SUCCESSORS AND ASSIGNS. This Agreement is intended to bind and
inure to the benefit of and be enforceable by Executive, the Company and their
respective heirs, successors and assigns, except that Executive may not assign
his rights or delegate his duties or obligations hereunder without the prior
written consent of the Company.
15. CHOICE OF LAW. All issues and questions concerning the
construction, validity, enforcement and interpretation of this Agreement and the
exhibits and schedules hereto shall be governed by, and construed in accordance
with, the laws of the State of Florida, without giving effect to any choice of
law or conflict of law rules or provisions (whether of the State of Florida or
any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Florida.
16. AMENDMENT AND WAIVER. The provisions of this Agreement may be
amended or waived only with the prior written consent of the Company (as
approved by the Board) and Executive, and no course of conduct or failure or
delay in enforcing the provisions of this Agreement shall affect the validity,
binding effect or enforceability of this Agreement or be deemed to be an implied
waiver of any provision of this Agreement.
17. ARBITRATION. Except with respect to disputes or claims under
paragraphs 4, 5 and 6 hereof (which may be pursued in any court of competent
jurisdiction as specified below and with respect to which each party shall bear
the cost of its own attorney's fees and expenses), each party hereto agrees that
the arbitration procedure set forth herein shall be the sole and exclusive
method for resolving any claim or dispute ("Claim") arising out of or relating
to the rights
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and obligations acknowledged and agreed to in this Agreement and the employment
of Executive by the Company (including, without limitation, disputes and claims
regarding employment discrimination, sexual harassment, termination and
discharge), whether such Claim arose or the facts on which such Claim is based
occurred prior to or after the execution and delivery of this Agreement. The
parties agree that the result of any arbitration hereunder shall be final,
conclusive and binding on all of the parties. Nothing in this paragraph shall
prohibit a party hereto from instituting litigation to enforce any Final
Determination as defined below. Each party hereto further agrees that each other
party hereto may initiate litigation in any court of competent jurisdiction to
execute any judicial judgment enforcing a Final Determination.
18. SCHEDULE OF TERMS OF EMPLOYMENT. The following special terms and
conditions are incorporated into this Employment Agreement as follows:
Name of Executive: Xxxxxxxxxxx X. Xxxxxxxxx,
Social Security Number: (Tax ID#, on-file)
Address for Notice: 00000 Xxxxx Xxxx 00xx Xxxxxx, Xxxxxxxx, Xx 00000.
Telephone: 000-000-0000, Fax 000-000-0000
E-mail: xxxxxxxxxx@xxxxxxxxxx.xxx
Position and Title: Board Chairman, Chief Executive Officer, and
President shall serve on the Board of Directors and
serve as a Director of the Company and its
affiliate Companies, for terms commensurate with
the terms of this Employment Agreement. Errors,
Omissions, and Director's insurance shall be
obtained and paid for by the Company.
Duties and Responsibilities: To oversee a variety of functions, departments,
divisions, affiliates, and projects of the Company
at an executive level, reporting to the Board of
Directors of the Company, with the working location
to be at the National Office in Boca Raton,
Florida. If the duties and responsibilities are
changed by the Company, or the work location is not
at the National Office located in Broward or Palm
Beach County, this would constitute a termination
without cause by the Company.
Vacation & Sickness Time: Total paid time off days (PTO-days)shall not exceed
6 weeks per year (which equates to 30 PTO-days).
Executive may freely exchange vacation and sick
leave time as they deem appropriate; Unused PTO
days may be saved for future years, for extended
sick leave, extended vacation, or personal time
off.
Initial Base Salary: $240,000.00 (annual, paid in 24 equal
installments), where said base salary shall
increase annually at (the greater of) the National
CPI index or $15,000 annually; Said salary shall
commence on April 1, 2001.
Stock Option Plan: A Company Stock Option Incentive Plan shall be
immediately provided by the Company to the
Executive by the full execution of this agreement,
where the Executive is granted common stock options
of the Company in an amount equating to 8.0% of the
total issued and outstanding shares of all classes
of stock and options on a fully diluted basis, with
an option exercise price equating to $0.01 per
share, where said stock options shall be fully
transferrable, have an exercise period of 10 years
from granting, shall be non-dilutive (meaning that
as any additional stock, options, or warrants are
sold by the Company, or issued from its treasury,
or the total shares of all classes of stock of the
Company increase due to any merger or acquisition
activity), then Executive's total number of options
shall increase so that the resultant total options
held by Executive shall remain constant at 8.0% of
the total issued and outstanding shares of the
Company including all stock, options, warrants,
including all classes of common and preferred stock
of the Company on a fully diluted basis. The full
execution of this agreement shall constitute a
valid and binding
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Stock Option Incentive Plan between the Company and
the Executive. If the Company terminates the
Executive with or without cause at any time, then
no options granted to Executive will be returned to
the Company, however, the non-dilutive provision
will be terminated, and no further options will be
granted to Executive. If the Executive resigns at
any time, then no options granted to Executive will
be returned to the Company, however, the
non-dilutive provision will be terminated, and no
further options will be granted to Executive. All
options recited above shall be granted to Executive
at inception of employment, with the exception of
those options that are granted to satisfy the
non-dilutive provision. As of January 18, 2001,
pursuant to information provided in the Company's
Private Placement Memorandum, page 29 thereof, the
company has Issued or committed to issue all
classes of capital stock, options, and warrants in
amounts equating to 164,082,466 shares on a fully
diluted basis; therefor as of that date Executive's
options granting would equate to 13,126,597 options
issued on a non-dilutive basis.
Bonus Plan (incentives): Executive to be paid annually a minimum of 5.0% of
the EBIDA pre-tax, net-income of the Company, paid
annually on January 31st of each calendar year and
if necessary, adjusted on March 31st of each year
following the company's annual audit, if performed.
The Board of Directors may increase or add to this
Executive's Bonus Plan as it deems appropriate, in
keeping with competitive market conditions and
objectives of the Company.
Employment Period: The initial term of employment shall be for 3
years, with a beginning date of 1st day of April,
2000, with an ending date of 31st day of March,
2004, subject to successive automatic two-year
renewal periods, unless not extended by the
provisions of the Employment Agreement.
Severance Payments: Termination for Death:
Base Salary for: 6 months
Termination for Disability:
Base Salary for: 12 months
Termination Without Cause:
Base Salary for: 18 months
Voluntary Termination due: Total Annualized
to Change of Control
W-2 compensation: 24 months
Change of Control. (a) For the purposes of this Agreement, a "Change
of Control" shall be deemed to have taken place if:
(i) any person, including a "group" as defined in
Section 13(d)(3) of the Securities Exchange Act of
1934 as amended, becomes the owner or beneficial
owner of Company securities, after the date of this
Agreement, having 20% or more of the combined
voting power of the then outstanding securities of
the Company that may be cast for the election of
directors of the Company (other than as a result of
an issuance of securities initiated by the Company,
or open market purchases approved by the Board, as
long as the majority of the Board approving the
purchases is the majority at the time the purchases
are made), or (ii) the persons who were directors
of the Company before such transactions shall cease
to constitute a majority of the Board of the
Company, or any successor to the Company, as the
direct or indirect result of, or in connection
with, any cash tender or exchange offer, merger or
other business combination, sale of assets or
contested election, or any combination of the
forgoing transactions.
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(b) The Company and Executive hereby agree that, if
Executive is in the employ of the Company on the
date on which a Change of Control occurs (the
"Change of Control Date") the Company (or, if
Executive is employed by a subsidiary, the
subsidiary) will continue to employ Executive and
Executive will remain in the employ of the Company
(or subsidiary), for the period commencing on the
Change of Control Date and ending on the earlier to
occur of (1) the second anniversary of such date,
or (2) the expiration of the Employment Period, to
exercise such authority and perform such Executive
duties as are commensurate with the authority being
exercised and duties be performed by the Executive
immediately prior to the Change of Control Date. If
the duties and responsibilities are changed by the
Company, or the work location is not at the
National Office located in Broward or Palm Beach
County, as a result of a Change of Control of the
Company, then the Executive at his election may
consider this event a Termination without cause,
and the Executive would be entitled to the amount
as stipulated in paragraph (d) below, in lump sum
within 5 days of the change of control. However, at
each (or any) event of change of control, the
Executive has the exclusive right to waive his
rights to his voluntary termination, pursuant to
the Change of Control, and where the Executive is
required to change his place of employment, the
Company will reimburse the Executive for his
reasonable relocation expenses, including without
limitation, moving expenses, temporary living and
travel expenses for up to one year while arranging
to move his residence to the changed locations,
closing costs, real estate commissions, if any,
associated with the sale of his existing residence
and the purchase of a replacement residence at the
changed location, plus an additional amount
representing a gross-up of any state or federal
taxes payable by Executive as a result of any such
reimbursements, and pay Executive a moving bonus
equating to 25% of the Executive's last 12 months
total gross annual compensation as would be defined
on Executive's W-2 form.
(c) During the remaining Employment Period after
the change of Control Date, the Company (or
subsidiary) will (i) continue to pay Executive a
salary at not less than the level applicable to
Executive on the Change of Control Date, (ii) pay
Executive bonuses and income tax incentive bonuses
in the amounts not less in amount than those paid
during the twelve month period preceding the Change
of Control Date, and (iii) continue Executive
benefit programs as to Executive at levels in
effect on the Change of Control Date.
(d) If during the remaining Employment Period after
the Change of Control Date (i) Executive's
employment is terminated by the Company (or
subsidiary), or (ii) there shall have occurred any
reduction in Executive's compensation or employment
related benefits, or any change in Executive's
status, working conditions or management
responsibilities, and Executive voluntarily
terminates employment within sixty (60) days of any
such occurrence, or the last in a series of
occurrences, then Executive shall be entitled to
receive, subject to the provisions of subparagraphs
(e) and (f) below, a lump sum payment equal to 200%
of Executive's "base period income" as determined
under (e) below. Such amount will be paid to
Executive within 5 business days after his
termination of employment.
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(e)The Executive's "base period income" shall be
his base salary, however such base salary shall not
be less than that as defined in paragraph 3(a)
above, and all annual incentive and income tax
bonuses, paid or payable to him during or with
respect to the twelve month period preceding the
date of his termination of employment. If Executive
has not been employed for 12 months at the time of
his termination of employment, his "base period
income" shall be his annualized base salary as
defined in paragraph 3(a) above, at the rate then
in effect and any annual incentive bonus paid to
Executive prior to the date of his termination of
employment or payable to Executive with respect to
his period of employment.
(f)The amounts payable to Executive under any other
compensation arrangement maintained by the Company
(or a subsidiary) which became payable, after
payment of the lump sum provided for in (a), upon
or as a result of the exercise by Executive of
rights which are contingent on a Change of Control
(and would be considered a "parachute payment"
under Internal Revenue Code 280G and regulations
thereunder), shall be reduced to the extent
necessary so that such amounts, when added to such
lump sum, do not exceed 299% of the Executive's
"base amount" (as computed in accordance with
Internal Revenue Code provisions and regulations)
for determining whether Executive has received an
excess parachute payment. If Executive has not been
employed by the Company (or a subsidiary of the
Company) during one or more calendar years
immediately preceding the Change of Control Date,
this paragraph (f) shall not apply.
Other Special Terms: FUEL AMERICA, LLC, Although said company shall
remain operative, Executive shall not spend
significant time away from the Company nor be
distracted from his duties and responsibilities as
outlined herein.
Arbitration Procedure:
1. NOTICE OF CLAIM. A party asserting a Claim (the "Claimant") shall
deliver written notice to each party against whom the Claim is asserted
(collectively, the "Opposing Party"), with a copy to the persons required to
receive copies of notices under the Agreement (the "Additional Notice Parties"),
specifying the nature of the Claim and requesting a meeting to resolve same. The
Additional Notice Parties shall be given reasonable notice of and invited and
permitted to attend any such meeting. If no resolution is reached within 10
business days after delivery of such notice, the Claimant or the Opposing Party
may, within 45 days after giving such notice, invoke the arbitration procedure
provided herein by delivering to each Opposing Party and the Additional Notice
Parties a Notice of Arbitration, which shall specify the Claim as to which
arbitration is sought, the nature of the Claim, the basis for the Claim, and the
nature and amount of any damages or other compensation or relief sought. Each
party agrees that no punitive damages may be sought or recovered in any
arbitration, judicial proceeding or otherwise. Failure to file a Notice of
Arbitration within 45 days shall constitute a waiver of any right to relief for
the matters asserted in the notice of claim. Any Claim shall be forever barred,
and no relief may be sought therefor, if written notice of such Claim is not
made as provided above within one year of the date such claim accrues.
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2. SELECTION OF ARBITRATOR. Within 20 business days after receipt of
the Notice of Arbitration, the Executive and the Board shall meet and attempt to
agree on an arbitrator to hear and decide the Claim. If the Executive and the
Board cannot agree on an arbitrator within ten business days, then they shall
request the American Arbitration Association (the "AAA") to appoint an
arbitrator experienced in the area of dispute who does not have an ongoing
business relationship with any of the parties to the dispute. If the arbitrator
selected informs the parties he cannot hear and resolve the Claim within the
time-frame specified below, the Executive and the Board shall request the
appointment of another arbitrator by the AAA subject to the same requirements.
3. ARBITRATION PROCEDURE. The following procedures shall govern the
conduct of any arbitration under this section. All procedural matters relating
to the conduct of the arbitration other than those specified below shall be
discussed among counsel for the parties and the arbitrator. Subject to any
agreement of the parties, the arbitrator shall determine all procedural matters
not specified herein.
(a) Within 30 days of the service after a Notice of Arbitration, each
party shall afford the other, or its counsel, with reasonable access to
documents relating directly to the issues raised in the Notice of Arbitration.
All documents produced and all copies thereof shall be maintained as strictly
confidential, shall be used for no purpose other than the arbitration hereunder,
and shall be returned to the producing party upon completion of the arbitration.
There shall be no other discovery except that, if a reasonable need is shown,
limited depositions may be allowed in the discretion of the arbitrator, it being
the expressed intention and agreement of each party to have the arbitration
proceedings conducted and resolved as expeditiously, economically and fairly as
reasonably practicable, and with the maximum degree of confidentiality.
(b) All written communications regarding the proceeding sent to the
arbitrator shall be sent simul taneously to each party or its counsel, with a
copy to the Additional Notice Parties. Oral communications between any of the
parties or their counsel and the arbitrator shall be conducted only when all
parties or their counsel are present and participating in the conversation.
(c) Within 20 days after selection of the arbitrator, the Claimant
shall submit to the arbitrator a copy of the Notice of Arbitration, along with a
supporting memorandum and any exhibits or other documents supporting the Claim.
(d) Within 20 days after receipt of the Claimant's submission, the
Opposing Party shall submit to the arbitrator a memorandum supporting its
position and any exhibits or other supporting documents. If the Opposing Party
fails to respond to any of the issues raised by the Claimant within 20 days
after receipt of the Claimant's submission, then the arbitrator may find for the
Claimant on any such issue and bar any subsequent consideration of the matter.
(e) Within 20 days after receipt of the Opposing Party's response, the
Claimant may submit to the arbitrator a reply to the Opposing Party's response,
or notification that no reply is forthcoming.
(f) Within 10 days after the latest submission as provided above, the
arbitrator shall notify the parties and the Additional Notice Parties of the
date of the hearing on the issues raised by the Claim. Scheduling of the hearing
shall be within the sole discretion of the arbitrator, but in no event more than
30 days after the last submission by the parties, and shall take place within 50
miles of the corporate headquarters of the Company at a place selected by the
arbitrator or such other place as is mutually agreed. Both parties shall be
granted substantially equal time to present evidence at the hearing. The hearing
shall not exceed one business day, except for good cause shown.
(g) Within 30 days after the conclusion of the hearing, the arbitrator
shall issue a written decision to be delivered to both parties and the
Additional Notice Parties (the "Final Determination"). The Final Determination
shall address each issue disputed by the parties, state the arbitrator's
findings and reasons therefor, and state the nature and amount of any damages,
compensation or other relief awarded.
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(h) The award rendered by the arbitrator shall be final and
non-appealable and judgment may be entered upon it in accordance with applicable
law in such court as has jurisdiction thereof.
4. COSTS OF ARBITRATION. As part of the Final Determination, the
arbitrator shall determine the allocation of the costs and expenses of the
arbitration, including the arbitrator's fee and both parties' attorneys' fees
and expenses, based upon the extent to which each party prevailed in the
arbitration. In the event that any relief which is awarded is non-monetary, then
such costs and expenses shall be allocated in any manner as may be determined by
the arbitrators.
5. SATISFACTION OF AWARD. If any party fails to pay the amount of the
award, if any, assessed against it within 30 days after the delivery to such
party of the Final Determination, the unpaid amount shall bear interest from the
date of such delivery at the lesser of (i) the prime lending rate reported by
the Wall Street Journal plus three hundred basis points and (ii) the maximum
rate permitted by applicable usury laws. In addition, such party shall promptly
reimburse the other party for any and all costs or expenses of any nature or
kind whatsoever (including attorneys' fees) reasonably incurred in seeking to
collect such award or to enforce any Final Determination.
6. CONFIDENTIALITY OF PROCEEDINGS. The parties hereto agree that all of
the arbitration proceedings provided for herein, including any notice of claim,
the Notice of Arbitration, the submissions of the parties, and the Final
Determination issued by the arbitrator, shall be confidential and shall not be
disclosed at any time to any person other than the parties, their
representatives, the arbitrator and the Additional Notice Parties; PROVIDED THAT
this provision shall not prevent the party prevailing in the arbitration from
submitting the Final Determination to a court for the purpose of enforcing the
award, subject to comparable confidentiality protections if the court agrees;
and PROVIDED FURTHER that the foregoing shall not prohibit disclosure to the
minimum extent reasonably necessary to comply with (i) applicable law (or
requirement having the force of law), court order, judgment or decree,
including, without limitation, disclosures which may be required pursuant to
applicable securities laws, and (ii) the terms of contractual arrangements (such
as financing arrangements) to which the Company or any Additional Notice Party
may be subject so long as such contractual arrangements were not entered into
for the primary purpose of permitting disclosure which would otherwise be
prohibited hereunder.
IN WITNESS WHEREOF, the parties hereto have executed this Employment Agreement
as of the date first written above.
FUELNATION INC.
By:
By:______________________
Executive
By:
By: _______________________
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