Attached files
| file | filename |
|---|---|
| 8-K - COLOMBIA ENERGY RESOURCES, INC. | v209725_8k.htm |
| EX-99.2 - COLOMBIA ENERGY RESOURCES, INC. | v209725_ex99-2.htm |
| EX-99.5 - COLOMBIA ENERGY RESOURCES, INC. | v209725_ex99-5.htm |
| EX-99.4 - COLOMBIA ENERGY RESOURCES, INC. | v209725_ex99-4.htm |
| EX-99.3 - COLOMBIA ENERGY RESOURCES, INC. | v209725_ex99-3.htm |
AMENDED
AND RESTATED EMPLOYMENT AGREEMENT
THIS
AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the “Agreement”) is made and entered
into effective as of the 1st day of January, 2011, by and between Colombia Clean
Power & Fuels, Inc., formerly known as Freedom Resource Enterprises Inc., a
Nevada corporation, (the “Company”) and Edward P Mooney (the “Executive”).
This Agreement hereby amends and shall supersede in its entirety the Employment
Agreement dated July 1, 2010, between the parties hereto.
WITNESSETH:
WHEREAS, the Company desires to have
the benefit of the Executive’s efforts and services; and
WHEREAS,
the Company has determined that it is appropriate and in the best interests of
the Company to provide to the Executive the compensation and benefits set forth
herein, and;
Whereas,
the Company also desires to provide protection to the Executive in the event of
certain terminations of the Executive’s employment relationship with the Company
in accordance with the terms and conditions contained herein and the Executive
desires to have such protection.
WHEREAS, the Executive desires to be
employed by the Company in accordance with the terms set forth
below;
NOW, THEREFORE, in consideration of the
foregoing and of the mutual covenants and agreements hereinafter set forth, the
Company and the Executive hereby mutually covenant and agree as
follows:
1. DEFINITIONS. Whenever
used in this Agreement the following terms shall have the meanings set forth
below:
(a) “Accrued
Benefits” shall mean the amount payable not later than ten (10) days following
an applicable Termination Date and which shall be equal to the sum of the
following amounts:
(i) All
salary earned or accrued through the Termination Date;
(ii) Reimbursement
for any and all monies advanced in connection with the Executive’s employment
for reasonable and necessary expenses incurred by the Executive through the
Termination Date;
(iii) Any
and all other cash benefits previously earned through the Termination Date and
deferred at the election of the Executive or pursuant to any deferred
compensation plans then in effect;
(iv) The
full amount of any stated bonus payable to the Executive in accordance with
Section 6(c) herein with respect to the year in which termination
occurs; and
(v) All
other payments and benefits to which the Executive may be entitled under the
terms of any benefit plan of the Company.
(b) “Affiliate”
means, with respect to any natural person or entity (“Person”) (i) any Person
directly or indirectly controlling, controlled by or under common control with
such Person, (i) any officer, director, partner, manager, member or trustee of
such Person, or (iii) any Person who is an officer, director, partner, manager,
member or trustee of any Person described in clauses (i) or (ii) of this
sentence. For purposes of this definition, the terms “controlling,”
“controlled by” or “under common control with” shall mean the possession, direct
or indirect, of the power to direct or cause the direction of the management and
policies of a Person or entity, whether through the ownership of voting
securities, by contract or otherwise, or the power to elect at least 50% of the
directors, managers, general partners, or Persons exercising similar authority
with respect to such Person or entities.
(c) “Board”
shall mean the Board of Directors of the Company;
(d) “Cause”
shall mean any of the following:
(i) The
engaging by the Executive in fraudulent conduct, as evidenced by a determination
in a binding and final judgment, order or decree of a court or administrative
agency of competent jurisdiction, in effect after exhaustion or lapse of all
rights of appeal, in an action, suit or proceeding, whether civil, criminal,
administrative or investigative, which the Board determines by a majority vote,
has a significant adverse impact on the Company in the conduct of the Company’s
business;
(ii) Conviction
of a felony, as evidenced by a binding and final judgment, order or decree of a
court of competent jurisdiction, in effect after exhaustion or lapse of all
rights of appeal, which the Board determine by a majority vote, has a
significant adverse impact on the Company in the conduct of the Company’s
business;
(iii) Neglect
or refusal by the Executive to perform the Executive’s duties or
responsibilities (unless significantly changed without the Executive’s consent);
or
(iv) A
significant violation by the Executive of the Company’s established policies and
procedures;
Notwithstanding
the foregoing, Cause shall not exist under Sections 1(c)(iii) and (iv) herein
unless the Company furnishes written notice to the Executive of the specific
offending conduct and the Executive fails to correct such offending conduct
within the thirty (30) day period commencing on the receipt of such
notice.
Mooney
Employment Agreement
2
(e) “Base
Salary” shall meant the annual salary paid to the Executive by the Company
pursuant to Section 6(a) hereof.
(f) “Change
of Control” shall mean a change in ownership or managerial control of the
outstanding voting interests, assets or business of the Company resulting from
one or more of the following circumstances:
(i) A
change in ownership of the Company through a transaction or series of
transactions, such that any Person or Persons (other than any current officer of
the Company or member of the Board) is (are) or become(s), in the aggregate, the
beneficial owner(s), directly or indirectly, of securities of the Company
representing thirty percent (30%) or more of the Company’s then outstanding
securities. For purposes of this Agreement, a beneficial owner of a security
includes any person who, directly or indirectly, through any contract,
arrangement, understanding, relationship, or otherwise has or shares
voting power (which includes the power to vote, or to direct the voting of, such
security) and/or, investment power (which includes the power to
dispose, or to direct the disposition of, such security) ;
(ii) Any
acquisition, consolidation or merger of the Company in which the Company is not
the continuing or surviving company or pursuant to which equity interests of the
Company would be converted into cash (other than cash attributable to
dissenters’ rights), securities or other property provided by a Person or
Persons other than the Company, other than an acquisition, consolidation or
merger of the Company in which the holders of the equity of the Company
immediately prior to the acquisition, consolidation or merger have approximately
the same proportionate equity ownership of the surviving company immediately
after the acquisition consolidation or merger; or
(iii) The
Board of the Company approves a sale, transfer, liquidation or other disposition
of all or substantially all of the assets of the Company to a Person or
Persons
(iv)
The Board of the Company approves the hiring of another industry
professional to serve as CEO and the Executive agrees to either a reduced role
and title or voluntarily agrees to resign upon the hiring of the permanent
CEO;
A “Change
of Control” shall be deemed to occur on the actual date on which any of the
foregoing circumstances shall occur.
(g) “Compensation
Committee” shall mean the compensation committee or similar committee created
from time to time by the Board and charged with he responsibility of reviewing
or establishing the compensation payable to the executives of the
Company.
Mooney Employment Agreement
3
(h) “Confidential
Information” means any non-public information that relates to the actual or
anticipated business or research and development of the Company or its
Affiliates, including, but not limited to technical data, trade secrets or
know-how, including, but not limited to, research, product plans or other
information regarding products or services and markets therefor, customer lists
and customers (including, but not limited to, customers of the Company or its
affiliates on whom the Executive called or with whom he became acquainted during
the term of this Agreement), software, developments, inventions, processes,
formulas, technology, designs, drawings, engineering, hardware configuration
information, marketing, finances or other business
information. “Confidential Information” does not include any of the
foregoing items which have become publicly known and made generally available
through no wrongful act of the Executive or of others who were under
confidentiality obligations as to the item or items involved or improvements or
new versions thereof.
(i) “Disability”
shall mean a physical or mental condition whereby the Executive is unable to
perform on a full-time basis the customary duties of the Executive under this
Agreement;
(j) “Good
Reason” shall mean:
(i) The
removal of the Executive from or any failure to reelect or appoint the Executive
to any of the positions held by the Executive as of the date of this Agreement
or any other positions to which the Executive shall thereafter be elected or
assigned except in the event that such removal or failure to reelect relates to
the termination by the Company of the Executive’s employment for Cause or by
reason of death, Disability or voluntary retirement;
(ii) A
significant adverse change, without the Executive’s written consent, in the
nature or scope of the Executive’s authority, powers, functions, duties or
responsibilities, or a material reduction in the level of support services,
staff, secretarial and other assistance, office space and accoutrements
available to a level below that which was provided to the Executive on the day
preceding the date of this Agreement and that which is necessary to perform any
additional duties assigned to the Executive following the date of this
Agreement, which change or reduction is not generally effective for all
executives employed by the Company (or its successor) in the
Executive’s class or category; or
(iii)
Breach or violation of any material provision of
this Agreement by the Company;
(k) “Gross
Income” shall mean the greater of the amounts payable pursuant to paragraph 6 or
the Executive’s average compensation (base salary plus cash bonus) for the prior
two (2) taxable years, plus any other compensation payable to the Executive by
the Company for the same period, whether taxable or non-taxable;
(l) “Notice
of Termination” shall mean the notice described in Section 14
herein;
(m) “Person”
shall mean any individual, partnership, joint venture, association, trust,
corporation or other entity, other than an employee benefit plan of the Company
or an entity organized, appointed or established pursuant to the terms of any
such benefit plan;
Mooney Employment Agreement
4
(n) “Termination
Date” shall mean, except as otherwise provided in Section 14 herein, shall
mean:
(i) The
Executive’s date of death;
(ii) Thirty
(30) days after the delivery of the Notice of Termination terminating the
Executive’s employment on account of Disability pursuant to Section 9 herein,
unless the Executive returns on a full-time basis to the performance of his or
her duties prior to the expiration of such period;
(iii) Thirty
(30) days after the delivery of the Notice of Termination if the Executive’s
employment is terminated by the Executive voluntarily; or
(iv)
Thirty (30) days after the delivery of
the Notice of Termination if the Executive’s employment is terminated by the
Company for any reason other than death or Disability;
(o) “Termination
Payment” shall mean the payment described in Section 12 herein;
(p) “$”
shall mean United States dollars.
2. EMPLOYMENT. The
Company hereby agrees to employ the Executive and the Executive hereby agrees to
serve the Company, on the terms and conditions set forth herein.
3. TERM. The
employment of the Executive by the Company pursuant to the provisions of this
Agreement shall commence on the date hereof and will end on the 2nd
anniversary thereof, unless further extended or sooner terminated as hereinafter
provided. On the last day of each year thereafter, the term of the
Executive’s employment shall, unless sooner terminated as hereinafter provided,
be automatically extended for an additional one year period from the date
thereof unless at least three (3) months before such date the Company shall have
delivered to the Executive or the Executive shall have delivered to the Company
written notice that the term of the Executive’s employment hereunder will not be
extended beyond its existing duration.
4. POSITIONS
AND DUTIES. The Executive shall serve as President and Chief
Executive Officer of the Company and in such additional capacities as set forth
in Section 7
herein. In connection with the foregoing positions, the Executive
shall have such duties, responsibilities and authority as may from time to time
be assigned by the Board. The Executive shall not be required to
manage the Company as his sole and exclusive function and he may have other
business interests and may engage in other activities in addition to those
relating to the Company, so long as they do not impede or interfere with the
Executive’s duties hereunder. The Executive agrees to devote not less
than not less than 50% of his entire business time, attention, skill, and effort
to the performance of his duties under this Agreement.
Mooney Employment Agreement
5
5. PLACE
OF PERFORMANCE. In connection with the Executive’s employment by the
Company, the Executive shall be based at the principal executive offices of the
Company.
6. COMPENSATION
AND RELATED MATTERS.
(a) Base
Salary. The Executive’s annual Base Salary shall be
$48,000. The Base Salary shall be payable in equal installments in
accordance with the Company’s standard payroll practices. The
Executive’s Base Salary shall be reviewed no less frequently than annually for
increases in the discretion of the Compensation Committee and/or Board, taking
into account the compensation level for executives with similar skills and
responsibilities at companies comparable to the Company, the financial condition
of the Company, and the Executive’s value to the Company relative to other
members of the executive management of the Company; provided, however, that at
no time during the term of this Agreement shall the Executive’s Base Salary be
decreased from the Base Salary then in effect except as part of an general
program of salary adjustment by the Company applicable to all vice presidents
and above.
(b) Performance
Compensation. The Executive will be eligible to receive an
annual bonus of a minimum of 50% and a maximum of 100% of the then applicable
Base Salary, less applicable withholding taxes, upon achievement of annual
performance objectives to be determined in good faith by the Compensation
Committee or the Board and the Executive, which objectives for the first year of
this Agreement will be established within thirty (30) days of the Effective
Date. Objectives for subsequent years will be determined as set forth
herein within thirty (30) days of each anniversary of this
Agreement. Bonus payments will be paid to the Employee not later than
thirty (30) days following achievement of annual performance objectives, but in
no event later than thirty (30) days following each anniversary of this
Agreement.
(c) Expenses. The
Executive shall be entitled to receive prompt reimbursement for all reasonable
expenses incurred by the Executive in performing services hereunder, including
all expenses for travel and living expenses while away from home on business or
at the request of and in the service of the Company, provided that such expenses
are incurred and accounted for in accordance with the policies and procedures
established from time to time by the Company.
(d) Other
Benefits. The Company shall provide, or reimburse, Executive
with all other benefits normally provided to an employee of a company similarly
situated to the Company, including being added as a named officer on the
Company’s directors’ and officers’ liability insurance policy (which shall be
obtained and maintained in full force and effect so long as Executive is
employed by the Company, on such terms as are customary for company’s similarly
situated). Except as expressly provided herein, this Agreement shall
not be construed as limiting in any way any rights or benefits the Executive,
his spouse, dependents or beneficiaries may have pursuant to any other employee
benefits plans or programs. At a minimum, the benefits will
include:
(i) Health
Insurance for the Executive and dependents;
Mooney Employment Agreement
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(ii) Disability
Insurance; and
(iii) Paid
vacation.
(e) Withholding
Taxes. The Executive may make any appropriate arrangements to
deduct from all benefits provided hereunder any taxes reasonably determined to
be required to be withheld by any government or government
agency. The Executive shall bear all taxes on benefits provided
hereunder to the extent that no taxes are withheld, irrespective of whether
withholding is required.
(f) Vacations. The
Executive shall be entitled to the number of vacation days in each calendar
year, and to compensation in respect of earned but unused vacation days,
determined in accordance with the Company’s vacation plan, but in no event less
than fifteen (15) business days. The Executive shall also be entitled
to all paid holidays given by the Company to its executives.
7. OFFICES. The
Executive agrees to serve without additional compensation, if elected or
appointed thereto, in one or more executive offices of the Company, or any
affiliate or subsidiary of the Company, or as a member of the board of directors
of any subsidiary or affiliate of the Company; provided, however, that the
Executive is indemnified for serving in any and all such capacities on a basis
no less favorable than is currently provided by the Company’s, or
otherwise.
8. TERMINATION
AS A RESULT OF DEATH. If the Executive shall die during the term of
this Agreement, the Executive’s employment shall terminate on the Executive’s
date of death and the Executive’s surviving spouse, or the Executive’s estate if
the Executive dies without a surviving spouse, shall be entitled to the
Executive’s Accrued Benefits as of the Termination Date.
9. TERMINATION
FOR DISABILITY. If, as a result of the Executive’s Disability, the
Executive shall have been unable to perform the Executive’s duties hereunder on
a full-time basis for four (4) consecutive months and within thirty (30) days
after the Company provides the Executive with a Termination Notice, the
Executive shall not have returned to the performance of the Executive’s duties,
the Company may terminate the Executive’s employment. During the term
of the Executive’s Disability prior to termination, the Executive shall continue
to receive all salary and benefits payable under Section 6 herein, including
participation in all employee benefit plans, programs and arrangements in which
the Executive was entitled to participate immediately prior to the Disability;
provided, however, that the Executive’s continued participation is permitted
under the terms and provisions of such plans, programs and
arrangements. In the event the Executive’s employment is terminated
on account of the Executive’s Disability in accordance with this Section 9, the
Executive shall receive the Executive’s Accrued Benefits as of the Termination
Date and shall remain eligible for all benefits provided by any long-term
disability programs of the Company in effect at the time of such termination.
10. TERMINATION
FOR CAUSE. If the Executive’s employment with the Company is
terminated by the Company for Cause, subject to the procedures set forth in
Section 14 herein, the Executive shall be entitled to receive the Executive’s
Accrued Benefits as of the Termination Date.
Mooney Employment Agreement
7
11. OTHER
TERMINATION BY COMPANY. If the Executive’s employment with the
Company is terminated by the Company other than by reason of death, Disability
or Cause, or as described in paragraph 14(d) below, subject to the procedures
set forth in Section 14 herein, the Executive (or in the event of the
Executive’s death following the Termination Date, the Executive’s surviving
spouse or the Executive’s estate if the Executive dies without a surviving
spouse) shall receive the applicable Termination Payment. The
Executive shall not, in connection with any consideration receivable in
accordance with this Section 11, be required to mitigate the amount of such
consideration by securing other employment or otherwise and such consideration
shall not be reduced by reason of the Executive securing other employment or for
any other reason.
12. VOLUNTARY
TERMINATION BY EXECUTIVE. Provided that the Executive furnishes
thirty (30) days prior written notice to the Company, the Executive shall have
the right to voluntarily terminate this Agreement at any time. If the
Executive’s voluntary termination is without Good Reason, the Executive shall
receive the Executive’s Accrued Benefits as of the Termination Date and shall
not be entitled to any Termination Payment. If the Executive’s
voluntary termination (other than a termination described in paragraph 14(d)
below) is for Good Reason, the Executive (or in the event of the Executive’s
death following the Termination Date, the Executive’s surviving spouse or the
Executive’s estate if the Executive dies without a surviving spouse) shall
receive the applicable Termination Payment.
13. TERMINATION
PAYMENT.
(a) If
the Executive’s employment is terminated as a result of death or disability, the
lump sum Termination Payment payable to the Executive shall be equal to the
Executive’s Accrued Benefits as of the Termination Date, plus $50,000, and the
Company shall provide to or reimburse the Executive’s dependents for health and
disability insurance benefits for a period of 18 months following the
termination date.
(b) If
the Executive’s employment is terminated by the Executive for Good Reason or by
the Company for any reason other than death, disability or Cause, the
Termination Payment payable to the Executive by the Company shall be equal to
the Executive’s Accrued Benefits plus $50,000, and the Company shall provide to
or reimburse the Executive’s dependents for health and disability insurance
benefits for a period of 18 months following the termination date.
(c) The
Termination Payment shall be payable in a lump sum not later than ten (10) days
following the Executive’s Termination Date. Such lump sum payment
shall not be reduced by any present value or similar factor. Further,
the Executive shall not be required to mitigate the amount of such payment by
securing other employment or otherwise and such payment shall not be reduced by
reason of the Executive securing other employment or for any other
reason.
Mooney Employment Agreement
8
14. TERMINATION
NOTICE AND PROCEDURE. Any termination by the Company or the Executive
of the Executive’s employment during the Employment Period shall be communicated
by written Notice of Termination to the Executive, if such Notice of Termination
is delivered by the Company, and to the Company, if such Notice of Termination
is delivered by the Executive, all in accordance with the following
procedures:
(a) The
Notice of Termination shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the facts and
circumstances alleged to provide a basis for termination;
(b) Any
Notice of Termination by the Company shall be approved by a resolution duly
adopted by a majority of the directors of the Company then in
office;
(c) If
the Executive shall in good faith furnish a Notice of Termination for Good
Reason and the Company notifies the Executive that a dispute exists concerning
the termination, within the fifteen (15) day period following the Company’s
receipt of such notice, the Executive shall continue the Executive’s employment
during such dispute. If it is thereafter determined that (i) Good
Reason did exist, the Executive’s Termination Date shall be the earlier of (A)
the date on which the dispute is finally determined, either by mutual written
agreement of the parties or pursuant to Section 18, (B) the date of the
Executive’s death or (C) one day prior to the second (2nd) anniversary of a
Change of Control, and the Executive’s Termination Payment, if applicable, shall
reflect events occurring after the Executive delivered the Executive’s Notice of
Termination; or (ii) Good Reason did not exist, the employment of the Executive
shall continue after such determination as if the Executive had not delivered
the Notice of Termination asserting Good Reason; and
(d) If
the Executive gives notice to terminate his or her employment for Good Reason
and a dispute arises as to the validity of such dispute, and the Executive does
not continue his employment during such dispute, and it is finally determined
that the reason for termination set forth in such Notice of Termination did not
exist, if such notice was delivered by the Executive, the Executive shall be
deemed to have voluntarily terminated the Executive’s employment other than for
Good Reason.
15. NONDISCLOSURE
OF PROPRIETARY INFORMATION. Recognizing that the Company is presently
engaged, and may hereafter continue to be engaged, in the research and
development of processes, the manufacturing of products or performance of
services, which involve experimental and inventive work and that the success of
its business depends upon the protection of the processes, products and services
by patent, copyright or by secrecy and that the Executive has had, or during the
course of his engagement may have, access to Proprietary Information, as
hereinafter defined, of the Company or
other information and data of a secret or
proprietary nature of the Company which the
Company wishes to keep confidential and
the Executive has furnished, or during the course of his
engagement may furnish, such information to the Company, the Executive agrees
that:
Mooney Employment Agreement
9
(a) “Proprietary
Information” shall mean any and all methods, inventions, improvements or
discoveries, whether or not patentable or copyrightable, and any other
information of a similar nature related to the business of the Company disclosed
to the Executive or otherwise made known to him as a consequence of or through
his engagement by the Company (including information originated by the
Executive) in any technological area previously developed by the Company or
developed, engaged in, or researched, by the Company during the term of the
Executive’s engagement, including, but not limited to, trade secrets, processes,
products, formulae, apparatus, techniques, know-how, marketing plans, data,
improvements, strategies, forecasts, customer lists, and technical requirements
of customers, unless such information is in the public domain to such an extent
as to be readily available to competitors;
(b) The
Executive acknowledges that the Company has exclusive property rights to all
Proprietary Information and the Executive hereby assigns all rights he might
otherwise possess in any Proprietary Information to the
Company. Except as required in the performance of his duties to the
Company, the Executive will not at any time during or after the term of his
engagement, which term shall include any time in which the Executive may be
retained by the Company as a consultant, directly or indirectly use,
communicate, disclose or disseminate any Proprietary Information or any other
information of a secret, proprietary, confidential or generally undisclosed
nature relating to the Company, its products, customers, processes and services,
including information relating to testing, research, development, manufacturing,
marketing and selling;
(c) All
documents, records, notebooks, notes, memoranda and similar repositories of, or
containing, Proprietary Information or any other information of a secret,
proprietary, confidential or generally undisclosed nature relating to the
Company or its operations and activities made or compiled by the Executive at
any time or made available to him or her prior to or during the term of his
engagement by the Company, including any and all copies thereof, shall be the
property of the Company, shall be held by him or her in trust solely for the
benefit of the Company, and shall be delivered to the Company by him or her on
the termination of his or her engagement or at any other time on the request of
the Company; and
(d) The
Executive will not assert any rights under any inventions, copyrights,
discoveries, concepts or ideas, or improvements thereof, or know-how related
thereto, as having been made or acquired by him or her prior to his or her being
engaged by the Company or during the term of his engagement if based on or
otherwise related to Proprietary Information.
16. ASSIGNMENT
OF INVENTIONS.
(a) For
purposes of this Section 16, the term “Inventions” shall mean discoveries,
concepts, and ideas, whether patentable or copyrightable or not, including but
not limited to improvements, know-how, data, processes, methods, formulae, and
techniques, as well as improvements thereof or know-how related thereto,
concerning any past, present or prospective activities of the Company which the
Executive makes, discovers or conceives (whether or not during the hours of his
engagement or with the use of the Company’s facilities, materials or personnel),
either solely or jointly with others during his or her engagement by the Company
or any affiliate and, if based on or related to Proprietary Information, at any
time after termination of such engagement. All Inventions shall be
the sole property of the Company, and Executive agrees to perform the provisions
of this Section 16 with respect thereto without the payment by the Company of
any royalty or any consideration therefor other than the regular compensation
paid to the Executive in the capacity of an employee or consultant.
Mooney Employment Agreement
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(b) The
Executive hereby assigns to the Company all of his rights to such Inventions,
and to applications for United States and/or foreign letters patent or
copyrights and to United States and/or foreign letters patent or copyrights
granted upon such Inventions.
(c) The
Executive shall acknowledge and deliver promptly to the Company, without charge
to the Company, but at its expense, such written instruments (including
applications and assignments) and do such other acts, such as giving testimony
in support of the Executive’s inventorship, as may be necessary in the opinion
of the Company to obtain, maintain, extend, reissue and enforce United States
and/or foreign letters patent and copyrights relating to the Inventions and to
vest the entire right and title thereto in the Company or its
nominee. The Executive acknowledges and agrees that any copyright
developed or conceived of by the Executive during the term of Executive’s
employment which is related to the business of the Company shall be a “work for
hire” under the copyright law of the United States and other applicable
jurisdictions.
(d) No
provisions of this Section shall be deemed to limit the restrictions applicable
to the Executive under Section 15.
(e) No
provisions of this Section shall be deemed or construed to require the Executive
to assign to the Company any rights or intellectual property with respect to any
invention which (i) is created by the Executive entirely on his own time, (ii)
does not constitute an “employment invention” as defined in the Utah Employment
Inventions Act, and (iii) is not exempted from the application of the Utah
Employment Inventions Act.
17. SHOP
RIGHTS. The Company shall also have the royalty-free right to use in
its business, and to make, use and sell products, processes and/or services
derived from any inventions, discoveries, concepts and ideas, whether or not
patentable, including but not limited to processes, methods, formulas and
techniques, as well as improvements thereof or know-how related thereto, which
are not within the scope of Inventions as defined in Section 16 but which are
conceived or made by the Executive during the period he or she is engaged by the
Company or with the use or assistance of the Company’s facilities, materials or
personnel.
18. CONFIDENTIAL
INFORMATION. The Executive agrees at all times during the term of
this Agreement and thereafter, to hold in strictest confidence, and not to use,
except for the benefit of the Company, or to disclose to any person, firm or
corporation without written authorization of the Board, any Confidential
Information, except under a non-disclosure agreement duly authorized and
executed by the Company.
Mooney Employment Agreement
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19. INDEMNIFICATION. The
Company and the Executive agree to enter into the Indemnification Agreement in
the form attached hereto as Exhibit A.
20. REMEDIES
AND JURISDICTION.
(a) The
Executive hereby acknowledges and agrees that a breach of the agreements
contained in this Agreement will cause irreparable harm and damage to the
Company, that the remedy at law for the breach or threatened breach of the
agreements set forth in this Agreement will be inadequate, and that, in addition
to all other remedies available to the Company for such breach or threatened
breach (including, without limitation, the right to recover damages), the
Company shall be entitled to injunctive relief for any breach or threatened
breach of the agreements contained in this Agreement.
(b) All
claims, disputes and other matters in question between the parties arising under
this Agreement, shall, unless otherwise provided herein, be decided by
arbitration in California, in accordance with the Employment Arbitration
Procedures of the American Arbitration Association (including such procedures
governing selection of the specific arbitrator or arbitrators), unless the
parties mutually agree otherwise. The Company shall pay the costs of
any such arbitration. The award by the arbitrator or arbitrators
shall be final, and judgment may be entered upon it in accordance with
applicable law in any state or Federal court having jurisdiction
thereof.
21. ATTORNEYS’
FEES. In the event that either party hereunder institutes any legal
proceedings in connection with its rights or obligations under this Agreement,
the prevailing party in such proceeding shall be entitled to recover from the
other party, all costs incurred in connection with such proceeding, including
reasonable attorneys’ fees, together with interest thereon from the date of
demand at the rate of twelve percent (12%) per annum.
22. SUCCESSORS. This
Agreement and all rights of the Executive shall inure to the benefit of and be
enforceable by the Executive’s personal or legal representatives, estates,
executors, administrators, heirs and beneficiaries. In the event of
the Executive’s death, all amounts payable to the Executive under this Agreement
shall be paid to the Executive’s surviving spouse, or the Executive’s estate if
the Executive dies without a surviving spouse. This Agreement shall
inure to the benefit of, be binding upon and be enforceable by, any successor,
surviving or resulting company or other entity to which all or substantially all
of the business and assets of the Company shall be transferred whether by
merger, consolidation, transfer or sale.
23. ENFORCEMENT. The
provisions of this Agreement shall be regarded as divisible, and if any of said
provisions or any part hereof are declared invalid or unenforceable by a court
of competent jurisdiction, the validity and enforceability of the remainder of
such provisions or parts hereof and the applicability thereof shall not be
affected thereby.
24. AMENDMENT
OR TERMINATION. This Agreement may not be amended or terminated
during its term, except by written instrument executed by the Company and the
Executive.
Mooney Employment Agreement
12
25. SURVIVABILITY. The
provisions of Sections 15, 16, 17, 18, 19, 20, and 21 shall survive termination
of this Agreement.
26. ENTIRE
AGREEMENT. This Agreement sets forth the entire agreement between the
Executive and the Company with respect to the subject matter hereof, and
supersedes all prior oral or written agreements, negotiations, commitments and
understandings with respect thereto.
27. GOVERNING
LAW. This Agreement and the Executive’s and Company’s respective
rights and obligations hereunder shall be governed by and construed in
accordance with the laws of the State of California without giving
effect to the provisions, principles, or policies thereof relating to choice or
conflicts of laws.
28. NOTICE. Notices
given pursuant to this Agreement shall be in writing and shall be deemed given
when received, and if mailed, shall be mailed by United States registered or
certified mail, return receipt requested, addressee only, postage prepaid, if to
the Company, to:
Company:
Colombia
Clean Power & Fuels Inc.
181
3rd
Street
Suite
150-B
San
Rafael, CA 94901
Executive: Edward
Mooney
1503
Smokey Mountain Drive
Petaluma,
CA 94954
or to
such other address as the Company shall have given to the Executive or, if to
the Executive, to such address as the Executive shall have given to
the Company.
29. NO
WAIVER. No waiver by either party at any time of any breach by the
other party of, or compliance with, any condition or provision of this Agreement
to be performed by the other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same time or any prior or subsequent
time.
30. HEADINGS. The
headings herein contained are for reference only and shall not affect the
meaning or interpretation of any provision of this Agreement.
31. COUNTERPARTS. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed to be an original but all of which together will constitute one and the
same instrument.
Mooney Employment Agreement
13
IN
WITNESS WHEREOF, each of the parties hereto has executed this Amended and
Restated Employment Agreement the respective day and year set forth
below.
|
“COMPANY”
|
||
|
Colombia
Clean Power & Fuels, Inc.
|
||
|
Date: December
31, 2010
|
By:
|
/s/ Daniel Carlson
|
|
Daniel
Carlson, Chief Financial
Officer
|
||
|
“EXECUTIVE”
|
||
|
Date: December
31, 2010
|
/s/ Edward
P Mooney
|
|
|
Edward
P Mooney
|
||
Mooney Employment Agreement
14