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Exhibit 10.1
EMPLOYMENT AGREEMENT
Employment Agreement dated as of December 29,
2006 (this " Agreement "), by and between Gecko Energy
Technologies, LLC, a Delaware limited liability company formerly
known as M.C.E. Venture, L.L.C. (the " Company "), and
Ronald J. Kelley, an individual residing in the State of New Jersey
(" Executive ").
In consideration of the employment of Executive
by the Company and the mutual covenants set forth herein, and for
other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as
follows:
1. Term . The Company agrees to employ Executive, and
Executive accepts such employment, under and subject to all of the
terms, conditions and provisions hereof, for the period commencing
on the date hereof and ending on December 31, 2008, unless sooner
terminated in accordance with the terms hereof (the "
Employment Term "). At the end of the Employment Term, this
Agreement shall renew automatically for additional one-month
periods unless either party delivers to the other party
thirty (30) days’ prior written notice of such
party’s election that the Employment Term not be so renewed.
If this Agreement is extended in accordance with the preceding
sentence, the "Employment Term" shall be extended until the end of
the applicable extension period.
2. Position
and Duties . (a) During the Employment Term, Executive shall
serve as the President of the Company and shall have the normal
duties, responsibilities, functions and authorities customarily
exercised by an executive with such title in a company of similar
size and nature as the Company. In addition, during the Employment
Term, Executive shall render such administrative, financial and
other executive and managerial services to the Company which are
consistent with Executive’s position as determined from time
to time by the president (" President ") of Millennium Cell
Inc., the sole member of the Company (" Parent ").
(b) During the
Employment Term, Executive shall report to the President (or any
other executive of Parent designated by Parent) and shall devote
his best efforts and his full business time and attention (except
for permitted vacation periods and reasonable periods of illness or
other incapacity) to the business and affairs of the Company.
Executive shall diligently and faithfully perform his duties,
responsibilities and functions to the Company hereunder to the best
of his abilities in compliance in all material respects with the
Company’s policies and procedures in effect from time to time
and applicable law. During the Employment Term, Executive shall not
serve as an officer or director of, or otherwise perform services
for compensation for, any other entity, provided that
Executive may serve as an officer or director of or otherwise
participate in purely educational, welfare, social, religious and
civic organizations so long as such activities do not materially
interfere with the regular performance of Executive’s duties
and responsibilities under this Agreement.
3. Compensation; Fringe Benefits .
(a) During the
Employment Term, as full and complete compensation for the services
provided by Executive hereunder, Executive shall be entitled to an
annual base salary equal to $144,000 (the " Base Salary ").
The Base Salary shall be payable by the Company in regular
installments in accordance with the Company’s general payroll
practices applicable to senior executives (in effect from time to
time) but in any event no less frequently than monthly. Base Salary
may be adjusted upward from time to time during the Employment Term
in the reasonable discretion of Parent, provided that any decrease
in Executive’s compensation, or any other material amendment
to this Agreement, shall require the consent of the
Executive.
(b) In addition to
the Base Salary payable to Executive pursuant to this
Section 3, Executive shall also be entitled to the following
benefits during the Employment Term, unless otherwise modified (but
not diminished, other than general "across the board" benefit
reductions) by Parent:
(i) participation in
Parent’s retirement plans, health and welfare plans and
disability insurance plans, under the terms of such plans and to
the same extent and under the same conditions such participation
and coverages are provided to other executives of the
Company;
(ii) prompt
reimbursement of all reasonable out-of-pocket expenses incurred by
Executive in carrying out his duties, responsibilities and
functions under this Agreement, subject to presentation of
reasonable documentation in accordance with the Company’s
reimbursement policies; and
(iii) four (4) weeks
paid vacation each calendar year.
4. Termination . Unless earlier terminated in accordance
with this Section 4, the Company shall continue to employ
Executive and Executive shall remain employed by the Company during
the entire Employment Term as set forth in Section 1.
(a) Accrued
Obligations Upon Any Termination . In the case of any
termination of Executive’s employment with the Company
(including without limitation, Executive’s resignation and
any election not to renew this Agreement in accordance with
Section 1), Executive or his estate or legal representative,
as applicable, shall be entitled to receive from the Company, to
the extent not theretofore paid, (i) Executive’s Base
Salary through the effective date of termination, (ii) the
amount of any bonus, incentive compensation, deferred compensation
and other compensation earned or accrued by Executive as of the
effective date of termination under any compensation and benefit
plans, programs or arrangements maintained in force by the Company,
and (iii) any vacation pay, expense reimbursements and other
cash entitlements accrued by Executive, in accordance with Company
policy, as of the effective date of termination (collectively, the
" Accrued Obligations ").
(b) Termination by the Company other than for Cause . In the
event that the Company terminates Executive’s employment with
the Company for any reason other than for "Cause" (as defined in
Section 4(g)) or due to Executive’s Disability (as
defined in Section 4(g)), Executive shall be entitled to a
lump-sum cash payment, within thirty (30) days following the
effective date of such termination (subject to receipt of the
Release as provided below), equal to the sum of (i) the
Accrued Obligations, and (ii) an amount equal to two (2)
times Executive’s annual Base Salary (as in effect on the
effective date of Executive’s termination). As a condition to
the payment of any severance to Executive hereunder, Executive
shall execute and deliver to the Company the "Release" in the form
attached hereto as Exhibit A .
(c) Termination for Cause, Voluntary Resignation, Death or
Disability, Election Not to Renew . In the event that
(i) Executive’s employment with the Company is
terminated (A) by the Company for Cause, (B) by
Executive’s resignation from the Company for any reason or
(C) as a result of Executive’s death or Disability, or
(ii) either the Company or Executive elects not to renew this
Agreement in accordance with Section 1, then Executive, or his
estate or legal representatives, as applicable, shall be entitled
only to the Accrued Obligations, payable in a lump-sum cash payment
within thirty (30) days following the effective date of such
termination.
(d) No
Other Payments . Except as provided in (a), (b) or (c)
above, all of Executive’s rights to salary, bonuses, employee
benefits and other compensation hereunder which would have accrued
or become payable after the termination or expiration of the
Employment Term shall cease upon such termination or expiration,
other than those expressly required under applicable law (such as
COBRA).
(e) No
Mitigation, No Offset . In the event of Executive’s
termination of employment hereunder for whatever reason, Executive
shall be under no obligation to seek other employment, and there
shall be no offset against amounts due him under this Agreement or
otherwise on account of any remuneration attributable to any
subsequent employment or claims asserted by the Company or any
Person which directly or indirectly through one or more
intermediaries controls, or is controlled by, or is under common
control with, the Company (each, an " Affiliate ");
provided that this provision shall not apply with respect to
any amounts that Executive owes the Company or any Affiliate on
account of any loan, advance or other payment, in respect of any of
which Executive is obligated to make repayment to the Company or
any Affiliate.
(f) Definitions . For purposes of this Agreement, the
following terms have the following meanings:
(i) "
Cause " means one or more of the following: (A) the
conviction of Executive for, or an agreement by Executive to a plea
of nolo contendere to
, any felony or other crime involving moral
turpitude; (B) Executive’s willful and continuing
refusal to substantially perform duties as reasonably directed by
the President under this or any other agreement (after receipt of
written notice from the Parent setting forth such duties and
responsibilities to be performed); (C) in carrying out his
duties, Executive engages in conduct that constitutes gross neglect
or gross misconduct which, in either case, results or could
reasonably be expected to result in demonstrable harm to the
business, operations, prospects or reputation of the Company; or
(D) any other material breach of Section 5 of this
Agreement.
(ii) "
Disability " shall be deemed the reason for the termination
of Executive’s employment, if, as a result of
Executive’s incapacity due to physical or mental disability
or incapacity, Executive shall have been unable to substantially
perform the essential duties, responsibilities and functions of his
position with the Company for a period of six (6) consecutive
months. At any time and from time to time, upon the reasonable
request of the Company, Executive shall submit to reasonable
medical examination for the purpose of determining the existence,
nature and extent of any such Disability.
5. Non-Competition; Non-Solicitation; Non-Disparagement; Corporate
Opportunity . (a) In further consideration of the
compensation to be paid to Executive hereunder, Executive
acknowledges that during the course of his employment with the
Company, he shall become familiar with the Company’s trade
secrets and with other Confidential Information (as defined in this
Agreement) concerning the Company and its Affiliates and that his
services shall be of special, unique and extraordinary value to the
Company and, therefore, Executive agrees that, during the
Employment Term and for a period of one (1) year thereafter (the
" Restricted Period "), he shall not directly or indirectly own
any interest in, manage, control, participate in, consult with,
render services for, be employed in an executive, managerial or
administrative capacity by, or in any manner engage in any company
engaged in a business which competes with the businesses of the
Company or its Affiliates, as such businesses exist or are in
process during the Employment Term or on the date of the
termination or expiration of the Employment Term, within any
geographical area in which the Company or its Affiliates engage or
have definitive plans to engage in such businesses. Nothing in this
Section 5(a) shall prohibit Executive from being a passive
owner of not more than 2% of the outstanding stock of any class of
a corporation which is publicly traded, so long as Executive has no
active participation in the business of such corporation.
(b) During the
Restricted Period, other than in the course of Executive’s
performance of his duties, responsibilities and functions hereunder
on behalf of the Company, Executive shall not for any reason,
directly or indirectly through another Person, (i) induce or
attempt to induce any officer, director, employee, contractor,
consultant or advisor (collectively, " Personnel ") of the
Company or any of its Affiliates to end or terminate its
relationship with the Company or such Affiliate, or in any way
interfere with the relationship between the Company or such
Affiliate and any of their Personnel, (ii) knowingly hire or
assist a third party in hiring, or solicit for hire, any member of
the Personnel of the Company or any of its Affiliates until
six (6) months after such individual’s relationship with
the Company and/or such Affiliate has been terminated or (iii)
induce or attempt to induce any client, customer, supplier, vendor,
licensor, licensee or other business relation of the Company or any
of its Affiliates to cease doing business with the Company or such
Affiliate, or in any way interfere with the relationship between
any such client, customer, supplier, vendor, licensor, licensee or
business relation and the Company or such Affiliate.
(c) During the
Restricted Period, Executive agrees not to make any disparaging
comment or statement about the Company, any of its Affiliates, or
any of the Company’s products or technology, whether or not
true, including but not limited to, comments which could adversely
affect the conduct of the business of the Company or its
Affiliates, or any of their respective plans, prospects, business
names or reputations.
(d) During the
Employment Term, Executive shall submit to the Company and Parent
all business, commercial and investment opportunities or offers
presented to Executive that relate to the business of planar fuel
cell technology (" Corporate Opportunities "), if Executive
wishes to accept or pursue, directly or indirectly, such Corporate
Opportunities on Executive’s own behalf. This Section shall
not apply to purchases of publicly traded stock by
Executive.
6. Confidential Information . (a) Executive recognizes and
acknowledges that the products, services and technology, both
current and under development, promotion and marketing programs,
lists, trade secrets and other confidential and Proprietary
Information (as defined below) of the Company or any of its
Affiliates (all the foregoing is referred to herein as the "
Confidential Information "), are valuable, special and unique
assets of the Company’s and its Affiliates’ businesses,
the access to and knowledge of which are essential to the
performance of the duties of Executive hereunder. Executive agrees
that during the Employment Term and at all times thereafter, he
will not, in whole or in part, without the prior written consent of
the Company, (x) use any Confidential Information for his own
benefit and purposes or for the benefit of any Person except the
Company, under any circumstances, or (y) disclose, publish or
make available any Confidential Information to any Person for any
reason or purpose whatsoever, except as required in connection with
Executive’s duties to the Company and except to the
Company’s Personnel and similar representatives who are aware
of the confidential nature thereof and are bound by a duty of
confidentiality with respect thereto. Notwithstanding the
foregoing, Executive may disclose (i) information in the public
domain not as a result of a breach of this Agreement, (ii)
information lawfully received from a third party who had the right
to disclose such information and was not violating an obligation to
the Company in connection therewith and (iii) information, other
than Proprietary Information, learned through Executive’s own
independent skill, knowledge, know-how and experience to whatever
extent and in whatever way Executive wishes, in each case
consistent with Executive’s obligations under this
Agreement.
(b) In the event
that Executive is requested or required (by oral questions,
deposition, interrogatories, requests for information or documents,
subpoena, civil investigative demand or other process) to disclose
all or any part of any Confidential Information, Executive shall
provide the Company with prompt notice of such request or
requirement so that the Company may seek an appropriate protective
order or waive compliance with the provisions of this
Section 6, as well as notice of the terms and circumstances
surrounding such request or requirement. In any such case,
Executive shall discuss with the Company the advisability of
pursuing any such order or other legal action or available steps to
resist or narrow such request or requirement. If, failing the entry
of a protective order or the receipt of a waiver hereunder,
Executive is legally compelled to disclose Confidential
Information, Executive may disclose that portion of the
Confidential Information which Executive is legally compelled to
disclose. In any event, Executive shall use reasonable efforts to
cooperate with the Company’s efforts to obtain and shall not
oppose action by the Company to obtain, an appropriate protective
order or other reliable assurance that confidential treatment will
be accorded the disclosure of such information.
(c) Upon written
notice by the Company, Executive shall promptly redeliver to the
Company, or, if requested by the Company, promptly destroy, all
written, electronic or otherwise tangible Confidential Information
of the Company and any other written, electronic or otherwise
tangible material containing any information included in the
Confidential
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