Unassociated Document


    

      SEPARATION
        AGREEMENT 

      


      THIS
        SEPARATION AGREEMENT (this
        “Agreement”) is entered into as of October 19, 2007 (the “Effective Date”), by
        and between H2Diesel Holdings, Inc. (the “Company”) and Michael Burstein (the
“Executive”). Capitalized terms not otherwise defined herein have the meanings
        set forth in the Employment Agreement (as defined below).

       

      WHEREAS,
        the Executive is currently the Chief Financial Officer (“CFO”) of the Company,
        and 

       

      WHEREAS,
        the
        Company and the Executive desire to establish the terms and conditions of
        Executive’s resignation as CFO on the terms and conditions contained herein and
        certain modifications to the
        Executive’s employment agreement with the Company entered into September 1, 2007
        (the “Employment Agreement”).

       

      NOW,
        THEREFORE,
        for and in consideration of the mutual promises and covenants herein contained
        and for good and valuable consideration, the sufficiency of which is hereby
        acknowledged, the Company and the Executive agree as follows:

       

      1.  Resignation
        and Waiver of Notice.
        The Executive hereby resigns from the Company and all other affiliates of
        the
        Company effective as of the Effective Date. The Company waives the 90-day
        notice
        of termination requirement set forth in Section 5(g) of the Employment
        Agreement. 

       

      2.  Executive
        Agreement.
        In exchange for the waiver as described in Section 1 of this Agreement, the
        Executive hereby agrees to the following provisions set forth in Subsections
        2.1
        through 2.3:

       

      2.1.  Compensation
        and Benefits.
        The Executive hereby unconditionally and irrevocably forfeits any and all
        rights
        applicable to the period on and after the Effective Date under Section 3
        of the
        Employment Agreement, including with regard to Base Salary, Equity Compensation,
        Benefits, Vacation, Business Expenses, Bonus Plan, or Relocation Expenses.
        

       

      2.2.  Options.
        The Executive hereby unconditionally and irrevocably forfeits any and all
        rights
        to all stock options (including without limitation vested options and any
        rights
        to future grants of options) granted pursuant to Section 3.2 of the Employment
        Agreement. 

       

      2.3.  Accrued
        Amounts.
        The Executive hereby unconditionally and irrevocably forfeits any and all
        rights
        to all “Accrued Amounts” as defined in Section 5(a) of the Employment
        Agreement.

       

      3.  General
        Waiver and Release. The
        Executive agrees to execute a General Waiver and Release Agreement on the
        Effective Date in exactly the form provided to the Executive by the Company
        without alteration or addition (the “General
        Waiver and Release Agreement”),
        attached hereto as Exhibit
        A,
        the
        terms and conditions of which are specifically incorporated herein by reference.
        

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      4.  Nondisparagement.
        The parties agree that any public announcement regarding the Executive’s
        separation shall be in the form of or not inconsistent with statements approved
        in writing by an executive officer of the Company.

       

      4.1.  Executive
        Covenant.
        The
        Executive understands and agrees that as a condition for the waiver in Section
        1, he will not make any false, disparaging or derogatory statements to any
        media
        outlet, industry group, financial institution or current or former employee,
        consultant, client or customer of the Company (or any affiliate of the Company),
        or to any other entity or person, regarding the Company or any of its
        affiliates, officers, directors, agents, consultants, employees, customers
        or
        suppliers or about the Company’s (or its affiliate’s) business affairs or
        financial condition; provided, however, that the prohibition in this Section
        3.1
        shall not apply to truthful communications the Executive is required by law
        to
        make to the Board of Directors of the Company or any governmental
        entity.

       

      4.2.  Company
        Covenant.
        The
        Company agrees that no Company officer or director (each a “Managing Person”)
        shall make, or shall direct or authorize any employee, former employee or
        agent
        to make, any false, disparaging or derogatory statements to any media outlet,
        industry group, financial institution, current or former employee (excluding
        Managing Persons), consultant, client or customer of the Company (or any
        affiliate of the Company), or to any other entity or person, regarding the
        Executive; provided, however, that the prohibition in this Section 3.2 shall
        not
        apply to truthful communications the Company or a Managing Person is required
        by
        law to make, or authorize or direct to be made, to any governmental
        entity.

       

      5.  Miscellaneous.

       

      4.1. Notices.
        All
        notices or requests under this Agreement shall be in writing and addressed
        as
        follows:

       

      


       

      
        	
                If
                  to the Company:

                 

                H2Diesel
                  Holdings, Inc.

                11111
                  Katy Freeway, Suite 910

                
                  Houston,
                    Texas 77079

                

                Attention:
                  David A. Gillespie

              	
                with
                  copy to:

                 

                Hogan
                  & Hartson LLP

                555
                  Thirteenth Street, NW 

                Washington,
                  DC 20004

                Attention:
                  Steven Kaufman, Esq.

              
	
                If
                  to the Executive:

                 

                Michael
                  Burstein

                6740
                  Willow Lane

                Dallas,
                  Texas 75230

              	
                with
                  copy to:

                 

                 

              


      

       

      or
        to such other address as may be designated by either party in a notice to
        the
        other. Each notice, demand, request or other communication that shall be
        given
        or made in the manner described above shall be deemed sufficiently given
        or made
        for all purposes three days after it is deposited in the U.S. mail, postage
        prepaid, or at such time as it is delivered to the addressee (with the return
        receipt, the delivery receipt, the answer back or the affidavit of messenger
        being deemed conclusive evidence of such delivery) or at such time as delivery
        is refused by the addressee upon presentation.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      4.2. Representations.
        The Executive agrees to execute any proper oath or verify any proper document
        required to carry out the terms of this Agreement and the General Waiver
        and
        Release Agreement. The Executive represents that performance of all the terms
        of
        this Agreement will not breach any similar agreement. Executive has not entered
        into, and Executive agrees not to enter into, any oral or written agreement
        in
        conflict herewith.

       

      4.3. Severability.
        The invalidity or unenforceability of any one or more provisions of this
        Agreement shall not affect the validity or enforceability of the other
        provisions of this Agreement, which shall remain in full force and
        effect.

       

      4.4. Binding
        Effect.
        This Agreement shall be binding upon the parties hereto and shall inure to
        the
        benefit of the Executive and Company (including, the Company’s successors and
        assigns). The rights and obligations of the Executive under this Agreement
        shall
        not be assignable or delegable by the Executive, except that in the event
        of the
        Executive’s death, the Executive’s estate shall have the right to receive any
        amount owing and unpaid to the Executive hereunder. 

       

      4.5. Amendment;
        Waiver.
        This Agreement shall not be amended, altered or modified except by an instrument
        in writing duly executed by the parties hereto. Neither the waiver by either
        of
        the parties hereto of a breach of or a default under any of the provisions
        of
        this Agreement, nor the failure of either of the parties, on one or more
        occasions, to enforce any of the provisions of this Agreement or to exercise
        any
        right or privilege hereunder, shall thereafter be construed as a waiver of
        any
        subsequent breach or default of a similar nature, or as a waiver of any such
        provisions, rights or privileges hereunder.

       

      4.6. Headings.
        Section and subsection headings contained in this Agreement are inserted
        for
        convenience of reference only, shall not be deemed to be a part of this
        Agreement for any purpose, and shall not in any way define or affect the
        meaning, construction or scope of any of the provisions hereof.

       

      4.7. Governing
        Law. 
        This Agreement, the rights and obligations of the parties hereto, and any
        claims
        or disputes relating thereto, shall be governed by and construed in accordance
        with the laws of the State of Florida (but not including the choice of law
        rules
        thereof).

       

      4.8. Entire
        Agreement.
        This Agreement and the General Waiver and Release Agreement constitute the
        entire agreement between the parties respecting the Employment Agreement,
        there
        being no representations, warranties or commitments except as set forth
        herein.

       

      4.9. Counterparts.
        This Agreement may be executed in two or more counterparts, each of which
        shall
        be an original and all of which shall be deemed to constitute one and the
        same
        instrument.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      4.10. No
        Right to Continued Employment. Nothing
        in this Agreement shall be deemed to give the Executive the right to be retained
        in the employ of the Company, or to interfere with the right of the Company
        to
        discharge the Executive at any time and for any reason.

       

      4.11. Fees
        and Costs.
        In any action relating to or arising from this Agreement, or involving its
        application, the party substantially prevailing shall recover from the other
        party the expenses incurred by the prevailing party in connection with the
        action, including court costs and reasonable attorneys’ fees.

       


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      


      IN
        WITNESS WHEREOF,
        and intending to be legally bound, the parties have duly executed this Agreement
        as of the day and year first herein above written.

       

      
        	 	 	 H2DIESEL
                HOLDINGS, INC
	 	  	 
	 	 	/s/ David A. Gillespie
	 	
                
By:   
David
                A. Gillespie 
	 	Title:
                President and Chief Executive Officer




      
        	 	 	 EXECUTIVE:
	 	 	 
	 	 	 
	 	 	/s/ Michael Burstein
	 	
                
Michael
                Burstein
	 	 


      

       


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      


      EXHIBIT
        A

      GENERAL
        WAIVER AND RELEASE AGREEMENT

      


      THIS
        GENERAL WAIVER AND RELEASE AGREEMENT is entered into as of October 19, 2007
        (the
“Effective Date”), by Michael Burstein (the “Executive”) in consideration of the
        waiver to be provided to the Executive by H2Diesel Holdings, Inc. (the
“Company”) pursuant to the Separation Agreement by and between the Company and
        the Executive, dated as of October 19, 2007 (the “Agreement”).

       

      1.  Waiver
        and Release. 

       

      1.1  By
        the Executive.
        The
        Executive, on his own behalf and on behalf of his heirs, executors,
        administrators, attorneys and assigns, hereby unconditionally and irrevocably
        releases, waives and forever discharges (a)
        the Company and each of its affiliates, parents and subsidiaries, (b) the
        successors and predecessors of the Company and each of its affiliates, parents
        and subsidiaries, and (c) the directors, owners, members, shareholders,
        officers, agents, and employees of the Company and each of its affiliates,
        parents, subsidiaries, successors and predecessors (collectively, all of
        the
        foregoing described in (a), (b) and (c) are referred to as the
“Employer”)
        from any
        and all causes of action, claims and damages, including attorneys’ fees, whether
        known or unknown, foreseen or unforeseen, presently asserted or otherwise
        arising through the date of his signing of this Agreement, concerning his
        employment or separation from employment, except for claims arising under
        this
        Agreement. This release includes, but is not limited to, any claim or
        entitlement to salary, bonuses, any other payments, benefits or damages arising
        under any federal law (including, but not limited to, Title VII of the Civil
        Rights Act of 1964, the Age Discrimination in Employment Act, the Employee
        Retirement Income Security Act of 1974, the Americans with Disabilities Act,
        Executive Order 11246, the Family and Medical Leave Act, and the Worker
        Adjustment and Retraining Notification Act, each as amended); any claim arising
        under any state or local laws, ordinances or regulations (including, but
        not
        limited to, workers’ compensation retaliation) or any state or local laws,
        ordinances or regulations requiring that advance notice be given of certain
        workforce reductions); and any claim arising under any common law principle
        or
        public policy, including, but not limited to, all suits in tort or contract,
        such as wrongful termination, defamation, emotional distress, invasion of
        privacy or loss of consortium.

       

      2.1  By
        the Employer.
        The
        Employer hereby unconditionally and irrevocably releases, waives and forever
        discharges the Executive from any and all causes of action, claims and damages,
        including attorneys’ fees, whether known or unknown, foreseen or unforeseen,
        presently asserted or otherwise arising through the date of his signing of
        this
        Agreement, concerning his employment or separation from employment, except
        for
        claims arising under this Agreement. 

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      


      2.  Acknowledgements.
        In
        accordance with the Older Workers Benefit Protection Act of 1990, the Executive
        represents and acknowledges that:

       

      (a)  This
        Agreement is written in a manner he understands;

       

      (b)  By
        execution of this Agreement, he does not waive rights or claims under the
        ADEA
        that arise after the date of its execution;

       

      (c)  He
        has had the opportunity to consult an attorney prior to the execution of
        this
        Agreement;

       

      (d)  He
        waives all rights under the ADEA in return for the consideration provided
        for in
        this Agreement, which is in excess of anything of value to which he is already
        entitled;

       

      (e)  He
        has been given a reasonable time to consider whether to sign this Agreement;
        and

       

      (f)  He
        understands that with respect to the waiver of claims under the ADEA only,
        he
        has seven (7) days after signing this Agreement to revoke this waiver, after
        which time the waiver becomes binding and enforceable. The Executive further
        agrees and understands that if he chooses to exercise his right of revocation
        under this Section, he must notify
        the
        Company
        of his intent to do so in a signed writing delivered to the Company before
        the
        end of this seven (7) day period.

       

      3.  Entire
        Agreement.
        There
        are no other agreements of any nature between the Executive and the Company
        with
        respect to the matters discussed in this General Waiver and Release Agreement,
        and that in signing this General Waiver and Release Agreement, he is not
        relying
        on any agreements or representations, except those expressly contained in
        this
        General Waiver and Release Agreement.

       

      4.  Execution.
        It is
        not necessary that the Company sign this General Waiver and Release Agreement
        following the Executive's full and complete execution of it for it to become
        fully effective and enforceable.

       

      5.  Severability.
        If any
        provision of this General Waiver and Release Agreement is found, held or
        deemed
        by a court of competent jurisdiction to be void, unlawful or unenforceable
        under
        any applicable statute or controlling law, the remainder of this General
        Waiver
        and Release Agreement shall continue in full force and effect.

       

      6.  Governing
        Law.
        This
        General Waiver and Release Agreement shall be governed by the laws of the
        State
        of Florida, except for the provisions of Florida law that would refer
        jurisdiction to another state.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      7.  Headings.
        Section
        and subsection headings contained in this General Waiver and Release Agreement
        are inserted for the convenience of reference only. Section and subsection
        headings shall not be deemed to be a part of this General Waiver and Release
        Agreement for any purpose, and they shall not in any way define or affect
        the
        meaning, construction or scope of any of the provisions hereof.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      IN
        WITNESS WHEREOF, the undersigned has duly executed this Agreement as of the
        day
        and year first herein above written.

       

       

      
        

          
            	 	 	 EXECUTIVE:
	 	 	 
	 	 	 
	 	 	/s/ Michael Burstein
	 	
                    
Michael
                    Burstein
	 	 


          

           

        

        
          	 	 	 H2DIESEL
                  HOLDINGS, INC
	 	  	 
	 	 	/s/ David A. Gillespie
	 	
                  
By:   
David
                  A. Gillespie 
	 	Title:
                  President and Chief Executive Officer