exv10w1



 






Exhibit 10.1




EMPLOYMENT AGREEMENT




     This Employment
Agreement (the “Agreement”), made and entered into this 9th day of June 2005,
by and between 02Diesel Corporation, a Delaware corporation (the “Company”), and Richard Roger (the
“Executive”).



WITNESSETH




     WHEREAS, the Company desires to hire the Executive and the Executive desires to become
employed by the Company; and



     WHEREAS, the Company and the Executive have determined that it is in their respective best
interest to enter into this Agreement on the terms and conditions as set forth herein.



     NOW, THEREFORE, in consideration of the premises and the mutual covenants and promises
contained herein, and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:



     1. Employment. The Company hereby agrees to employ the Executive, and the Executive
hereby agrees to serve the Company, upon the terms and conditions set forth herein.



     2. Term. The employment of the Executive by the Company pursuant to this Agreement as
provided in Section 1 will commence on 1st July, 2005 (the “Effective Date”), and
continue until the Executive’s employment is terminated as provided in Section 6 (the “Term”). For
the period from 1st July until 31st December 2005 the Executive shall work a
minimum of 1 day per week and from the 31st December the Executive shall, unless
otherwise agreed by the Company, be required to execute his duties on a full time basis.



     3. Position and Duties. The Executive shall serve as the President and Chief
Operating Officer (“COO”), and shall have such responsibilities, duties and authority as are
generally associated with such office and as may from time to time be assigned to the Executive by
the Chief Executive Officer (CEO) that are consistent with such responsibilities, duties and
authority, including, but not limited to, responsibility for the overall strategic business plan
and day-to-day operations of the Company across all functional areas on a worldwide basis. The
Executive shall perform his duties diligently and faithfully and shall devote substantially all his
working time and efforts to the business and affairs of the Company and its subsidiaries and
affiliates except as otherwise provided herein. The Executive shall, at all times during the Term,
report directly to the CEO. Notwithstanding anything in this Section 3 to the contrary, the
Executive shall not be required to perform any duties or responsibilities that would result in a
violation of, or noncompliance with, any law, regulation, regulatory pronouncement or any other
regulatory requirement applicable to the Company and the conduct of the Company’s business or to
the Executive in his capacity as the President and COO of the Company.



 









 





     4. Compensation and Related Matters.



     4.1 Base Salary. In consideration of the services rendered to the Company hereunder
by the Executive and the Executive’s covenants hereunder, the Company shall, during the Term, pay
to the Executive an annual base salary at a rate of $250,000 (the “Base Salary”), less statutory
deductions and withholdings, payable in accordance with the Company’s normal payroll practices;
provided, however, until Executive commences full time employment the Company shall pay Executive a
salary of $6,000 per month. At least annually, the Company will review the Base Salary for
competitiveness, the stage of development of the Company and appropriateness in the industry.



     4.2 Annual Bonus/Special Bonus. For each calendar year during the Term, the Executive
shall be eligible to receive a cash bonus of up to 100% of the Base Salary (the “Bonus”). The
Bonus shall be determined at the discretion of the Board of Directors on the basis of Executive’s
attainment of goals established by agreement of the Board and Executive from time to time. In
addition, the Company shall pay Executive a special bonus in the sum of $75,000 on or before
February 15, 2007, in respect of the reward of the restricted shares to be made on 1st
January 2007. During the period prior to the Executives full time employment the Executive shall
be entitled to receive a bonus of 3% for any funding that is introduced by the Executive and
accepted by the company provided that such funding is closed within twelve months of the initial
introduction.



     4.3 Stock/Stock Options. The option currently held by Executive to purchase 200,000
shares of the Company’s common stock shall vest 100% on the Effective Date. As soon as practicable
after the Effective Date, the Company shall (a) grant to the Executive 500,000 shares of Restricted
Stock at par value, to vest annually in equal amounts over three years commencing on the
1st of January 2006, with payment of the first award of 166,667 shares to be made on
1st January 2007, the second award of 166,667 shares to be made on January
1st 2008 and the third award of 166,666 shares to be made on 1st of January
2009 (b) grant to the Executive an option to purchase 1,000,000 shares of the Company’s common
stock and (c) effect the transfer from Alan Rae to Executive of an option to purchase 250,000
shares of the Company’s common stock (collectively the options in the aforesaid subparagraphs (b)
and (c), the “Options”). The Options shall vest over 3 years in accordance with the following
vesting schedule: (i) 34% on the first anniversary of the Effective Date, and (ii) the remaining
66% every six months thereafter in equal increments of 16.5%. The term of the Options shall be ten
years from the Effective Date. The Options shall be issued pursuant to the Company’s Stock
Incentive Plan and will be evidenced by a Stock Option Grant Agreement, as modified to reflect the
terms of this Agreement. The strike price for the Options that are non-qualified options shall be
$1.50 and for incentive stock options shall be 100% of the Fair Market Value, as defined in the
Company’s Stock Incentive Plan, as amended, of the Company’s common stock on the date of grant.
Irrespective of the date of grant, the vesting commencement date for any Options issued in
accordance with this Section 4.3 will be the Effective Date. The Options will be granted, to the
maximum amount of shares currently permitted by law, in the form of incentive stock options and the
remainder in non-qualified options.



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Notwithstanding the foregoing, all Restricted stock grants and Options shall vest 100%
immediately upon a Change in Control as defined below. For purposes of this Section, a
“Change in Control” shall be deemed to occur in the event of a change in ownership or control
of the Company effected through any of the following transactions: (i) the acquisition, directly or
indirectly, by any person or related group of persons (other than the Company or a person that
immediately before the Change of Control directly or indirectly controls, or is controlled by, or
is under common control with, the Company) of beneficial ownership (within the meaning of Rule
13d-3 of the Securities Exchange Act of 1934, as amended) of outstanding securities possessing more
than fifty percent (50%) of the total combined voting power of the Company’s outstanding
securities; or (ii) the sale, transfer or other disposition of all or substantially all of the
Company’s assets; or (iii) the consummation of a merger or consolidation of the Company with or
into another entity or any other corporate reorganization, if more than fifty percent (50%) of the
combined voting power of the continuing or surviving entity’s securities outstanding immediately
after such merger, consolidation or other reorganization is owned by persons who were not
stockholders of the Company immediately prior to such merger, consolidation or other
reorganization.



     4.4 Expenses. The Executive shall be entitled to receive prompt reimbursement for all
reasonable and customary expenses incurred by the Executive in performing services hereunder,
provided that such expenses are incurred and accounted for in accordance with the policies and
procedures established by the Company. In addition, the Company shall pay Executive an amount
equal to the attorney fees Executive incurs in connection with the negotiation of this Agreement.



     4.5 Benefits.



          (a) The Executive shall be entitled to receive full reimbursement for the premium costs of any
medical and dental plans under which Executive is covered during the Term.




          (b) The Executive shall be entitled to a car allowance of $1,000 per month of the Term.




          (c) The Executive shall be eligible to participate in any insurance coverage, including
health, dental, life and disability, and 401(k)/profit sharing or pension plans that cover or are
established for similarly situated full-time employees of the Company. The Executive’s
participation in the foregoing benefits will be subject to the terms of the applicable plan
documents and the Company’s generally applied policies, and the Company in its sole discretion may
from time to time adopt, modify or interpret such plans or policies.




          (d) The Executive shall be entitled to four weeks vacation each year.




     5. Director of the Company; D&O Insurance.



          (a) At the next annual election of directors, or sooner, in the event of a vacancy in a
non-independent director’s seat on the board of directors, the Company shall use its best efforts
to obtain the nomination of Executive as a candidate and election to the board of
directors of the Company. During the Term the Executive will serve without additional
compensation as a director of the Company.




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          (b) As an officer of the Company, the Executive will be covered under all of the Company’s
Director’s and Officer’s liability insurance policies, which are in place and updated over time.
The Company shall indemnify Executive to the full extent permitted under Delaware law for claims
relating to his service as a director or officer of the Company.




     6. Termination. The Executive’s employment hereunder may be terminated under the
following circumstances:




     6.1 Death or Disability. In the event of the Executive’s death or Disability during
the Term of this Agreement, the Executive’s employment hereunder shall immediately and
automatically terminate, and the Company shall have no further obligation or duty to the Executive
or his estate or beneficiaries other than for the Base Salary earned under this Agreement to the
date of termination, reimbursement of corporate expenses to which Executive would otherwise be
entitled, and any payments or benefits due under Company policies or benefit plans which shall be
paid within a reasonable time following death or Disability. For purposes of this Agreement,
“Disability” shall mean the physical or mental infirmity of Executive (including Executive’s
addiction to, or habitual abuse of, narcotics or controlled dangerous substances as shall be
substantiated medically at the industry standard for Executive at the time) which infirmity causes
him to be substantially unable to perform his duties hereunder for any period of one hundred eighty
(180) consecutive days; provided, however, that notwithstanding anything to the contrary herein and
despite any termination of Executive’s employment under this Section 6, Executive or his estate, as
the case may be, shall be entitled in the event of a termination on account of death or Disability:
(i) to retain his disability benefits, (ii) to receive his Base Salary until such time as he has
commenced receiving disability payments under the Company’s policies, (iii) to receive a prorated
portion of the Bonus to which Executive would otherwise have been entitled for the calendar year
through the date of termination (as determined by the Board), and (iv) accrued but unused vacation.
Executive or his estate, as the case may be, shall have a period of one (1) year following the
termination of his employment pursuant to this Section 6.1 to exercise any vested Options. In the
event of Executive’s Disability, the Board may continue to pay Executive his Base Salary at its
sole discretion.




     6.2 Cause, Without Cause Termination by the Executive. Notwithstanding the provisions
of Section 2 of this Agreement, the Executive’s employment hereunder may terminate under the
following circumstances:




          (a) Termination by the Company for Cause. The Board may terminate this Agreement for
Cause at any time, upon written notice to the Executive setting forth in reasonable detail the
nature of such Cause. For purposes of this Agreement, Cause is defined as (i) the Executive’s
material breach of Sections 7, 8, 9, 10 or 12 of this Agreement; (ii) the Executive’s conviction of
any felony or any crime involving moral turpitude; or (iii) gross neglect or willful misconduct by
the Executive in connection with the performance of his material duties hereunder, or his refusal
to perform such material duties reasonably requested in the ordinary course; provided, however,
that the Company shall give Executive thirty (30) days’ written notice and opportunity to cure
prior to any termination for Cause based on the grounds specified




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in (i) and (iii) above. Upon the termination for Cause of Executive’s employment, the Company shall
have no further obligation or liability to the Executive other than for Base Salary earned under
this Agreement prior to the date of termination, reimbursement for corporate expenses for which
Executive would otherwise be entitled, and any accrued but unused vacation. Executive’s vested but
unexercised Options shall expire immediately upon his termination for Cause pursuant to this
Section 6.2(a).



          (b) Termination by the Company Without Cause. The Executive’s employment hereunder
may be terminated without Cause by the Company upon written notice to the Executive, provided,
however, that if the Company terminates the Executive’s employment without Cause, or the Executive
terminates his employment for Good Reason, as defined below, the Company shall, provided that the
Executive is executing his duties on a full time basis (i) continue to pay the Executive the Base
Salary and shall reimburse medical and dental premiums, under the same conditions as exist at the
time of termination, for a severance period of twelve months, (ii) pay to the Executive a prorated
portion of the Bonus to which Executive would otherwise have been entitled based on performance
through the calendar quarter in which the termination has occurred, (iii) cause any unvested
Options and Restricted Stock granted to the Executive to immediately vest, and (iv) pay Executive
for any accrued but unused vacation. In the case of termination under the terms of this section the
Company shall reimburse Executive for corporate expenses for which Executive would otherwise be
entitled. The Company’s obligations under this Section 6.2(b) are not subject to any right of
setoff and impose no duty to mitigate on Executive. As a condition of receiving severance benefits
pursuant to this Agreement, the Executive shall execute and deliver to the Company prior to his
receipt of such benefits a general release in substantially the form set forth in Annex a hereto.
The obligations of the Company under this Section 6.2(b) are subject to Executive’s compliance with
Sections 7, 8, 9 and 10 hereof.




          (c) Termination by the Executive. The Executive may terminate his employment
hereunder for any reason upon one (1) month’s written notice to the Company (the “Notice Period”).
In the event Executive provides notice of termination pursuant to this subsection 6.2(c), the
Company may elect to terminate Executive at any time during the Notice Period without such
termination being deemed a termination by the Company under this Agreement; provided that the
Company shall nevertheless pay the Executive for any remaining portion of the Notice Period an
amount equal to the Base Salary and benefits at the rate of compensation the Executive was
receiving immediately before the Notice Period. The payments in the preceding sentence shall be in
addition to any other payments Executive is entitled to receive under this Agreement as a result of
the termination by Executive. The Executive may also terminate his employment hereunder for “Good
Reason,” within ninety (90) days after the occurrence of any of the following events (i) a material
breach of this Agreement by the Company; (ii) a material change in the Executive’s duties or
responsibilities inconsistent with his position as President and COO, including any reduction in
Base Salary or Bonus opportunity; or (iii) a relocation of the Executive’s worksite to a location
50 miles or more from its current location. The Executive shall give the Company thirty (30) days’
written notice and opportunity to cure prior to any termination for Good Reason based on the
grounds specified in (i) above.




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     7. Confidentiality, Disclosure of Information.



          (a) The Executive recognizes and acknowledges that the Executive has had and will have access
to Confidential Information (as defined below) relating to the business or interests of the Company
or of persons with whom the Company may have business relationships. Except as permitted herein,
the Executive will not during the Term, or at any time thereafter, use, disclose or permit to be
known by any other person or entity, any Confidential Information of the Company (except as
required by applicable law or as Executive deems necessary in connection with the performance of
the Executive’s duties and responsibilities hereunder). The term “Confidential Information” means
information relating to the Company’s business affairs, proprietary technology, trade secrets,
patented processes, research and development data, know-how, market studies and forecasts,
competitive analyses, pricing policies, employee lists, employment agreements (other than this
Agreement), personnel policies, the substance of agreements with customers, suppliers and others,
marketing arrangements, customer lists, commercial arrangements, or any other information relating
to the Company’s business that is not generally known to the public or to actual or potential
competitors of the Company (other than through a breach of this Agreement). This obligation shall
continue until such Confidential Information becomes publicly available, other than pursuant to a
breach of this Section 7 by the Executive, regardless of whether the Executive continues to be
employed by the Company.




          (b) It is further agreed and understood by and between the parties to this Agreement that all
“Company Materials,” which include, but are not limited to, computers, computer software, computer
disks, tapes, printouts, source, HTML and other code, flowcharts, schematics, designs, graphics,
drawings, photographs, charts, graphs, notebooks, customer lists, sound recordings, other tangible
or intangible manifestation of content, and all other documents whether printed, typewritten,
handwritten, electronic, or stored on computer disks, tapes, hard drives, or any other tangible
medium, as well as samples, prototypes, models, products and the like, shall be the exclusive
property of the Company and, upon termination of Executive’s employment with the Company, and/or
upon the request of the Company, all Company Materials, including copies thereof, as well as all
other Company property then in the Executive’s possession or control, shall be returned to and left
with the Company.




     8. Inventions Discovered by Executive. The Executive shall promptly disclose to the
Company any invention, improvement, discovery, process, formula, or method or other intellectual
property, whether or not patentable or copyrightable (collectively, “Inventions”), conceived or
first reduced to practice by the Executive, either alone or jointly with others, while performing
services hereunder (or, if based on any Confidential Information, within fifteen months after the
Term), (a) which pertain to any line of business activity of the Company, whether then conducted or
then being actively planned by the Company, with which the Executive was or is involved, (b) which
is developed using time, material or facilities of the Company, whether or not during working hours
or on the Company premises, or (c) which directly relates to any of the Executive’s work during the
Term, whether or not during normal working hours. The Executive hereby assigns to the Company all
of the Executive’s right, title and interest in and to any such Inventions. During the Term and
for fifteen months thereafter, the Executive shall execute any documents necessary to perfect the
assignment of such Inventions to the Company and to enable the Company to apply for, obtain and
enforce patents, trademarks and copyrights in any and all countries on such Inventions, including,
without limitation, the execution of any instruments and the giving of evidence and testimony,
without



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further compensation beyond the Executive’s agreed compensation during the course of the
Executive’s employment; provided, however, that to the extent Executive is asked to provide these
services after the Term, he will be entitled to reasonable compensation. Without limiting the
foregoing, the Executive further acknowledges that all original works of authorship by the
Executive, whether created alone or jointly with others, related to the Executive’s employment with
the Company and which are protectable by copyright, are “works made for hire” within the meaning of
the United States Copyright Act, 17 U.S.C. § 101, as amended, and the copyright of which shall be
owned solely, completely and exclusively by the Company. If any Invention is considered to be work
not included in the categories of work covered by the United States Copyright Act, 17 U.S.C. § 101,
as amended, such work is hereby assigned or transferred completely and exclusively to the Company.
The Executive hereby irrevocably designates counsel to the Company as the Executive’s agent and
attorney-in-fact to do all lawful acts necessary to apply for and obtain patents and copyrights and
to enforce the Company’s rights under this Section. This Section 8 shall survive the termination
of this Agreement. Any assignment of copyright hereunder includes all rights of paternity,
integrity, disclosure and withdrawal and any other rights that may be known as or referred to as
“moral rights” (collectively “Moral Rights”). To the extent such Moral Rights cannot be assigned
under applicable law and to the extent the following is allowed by the laws in the various
countries where Moral Rights exist, the Executive hereby waives such Moral Rights and consents to
any action of the Company that would violate such Moral Rights in the absence of such consent. The
Executive agrees to confirm any such waivers and consents from time to time as requested by the
Company.



     9. Non-Competition and Non-Solicitation. The Executive acknowledges that the Company
has invested substantial time, money and resources in the development and retention of its
Inventions, Confidential Information (including trade secrets), customers, accounts and business
partners, and further acknowledges that during the course of the Executive’s employment with the
Company the Executive will have access to the Company’s Inventions and Confidential Information
(including trade secrets), and will be introduced to existing and prospective customers, accounts
and business partners of the Company. The Executive acknowledges and agrees that any and all
“goodwill” associated with any existing or prospective customer, account or business partner
belongs exclusively to the Company, including, but not limited to, any goodwill created as a result
of direct or indirect contacts or relationships between the Executive and any existing or
prospective customers, accounts or business partners. Additionally, the parties acknowledge and
agree that Executive possesses skills that are special, unique or extraordinary and that the value
of the Company depends upon his use of such skills on its behalf.



     In recognition of this, the Executive covenants and agrees that:



          (a) During the Term, and for a period of twelve months thereafter, the Executive may not,
without the prior written consent of the Board, (whether as an employee, agent, owner, partner,
consultant, independent contractor, representative, stockholder or in any other capacity
whatsoever) participate in any business that offers clean diesel fuel-related products or services
competitive with those offered by the Company or that were under active development by the Company
during the Term (a “Competitive Business”), provided that nothing herein shall prohibit the
Executive from (i) employment by a business that engages in a




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Competitive Business as long as Executive does not directly engage in or have responsibility
for the activities that constitute a Competitive Business or (ii) owning securities of corporations
which are listed on a national securities exchange or traded in the national over-the-counter
market in an amount which shall not exceed 5% of the outstanding shares of an such corporation.



          (b) During the Term, and for a period of twelve months thereafter, the Executive may not
entice, solicit or encourage any Company employee to leave the employ of the Company or any
independent contractor to sever its engagement with the Company, absent prior written consent to do
so from the Board.




          (c) During the Term, and for a period of twelve months thereafter, the Executive may not,
directly or indirectly, entice, solicit or encourage any existing customer or customer identified
as an active prospect of the Company at the time of Executive’s termination to cease doing business
with the Company, reduce its relationship with the Company or refrain from establishing or
expanding a relationship with the Company.




     Provided, however, that this Section 9 shall not apply if the Company terminates the Executive
Without Cause or Executive terminates this Agreement for Good Reason.



     10. Non-Disparagement. The Executive hereby agrees that during the Term, and for
twelve months thereafter, the Executive will not make any statement that is disparaging about the
Company, any of its officers, directors, or shareholders (in their capacity as shareholders of the
Company), including, but not limited to, any statement that disparages the products, services,
finances, financial condition, capabilities or other aspect of the business of the Company.



     11. Provisions Necessary and Reasonable.



          (a) The Executive agrees that (i) the provisions of Sections 7, 8, 9 and 10 of this Agreement
are necessary and reasonable to protect the Company’s Confidential Information, Inventions, and
goodwill; (ii) the specific temporal, geographic and substantive provisions set forth in Section 9
of this Agreement are reasonable and necessary to protect the Company’s business interests; and
(iii) in the event of any breach of any of the covenants set forth herein, the Company would suffer
substantial irreparable harm and would not have an adequate remedy at law for such breach. In
recognition of the foregoing, the Executive agrees that in the event of a breach or threatened
breach of any of these covenants, in addition to such other remedies as the Company may have at
law, without posting any bond or security, the Company shall be entitled to seek and obtain
equitable relief, in the form of specific performance, and/or temporary, preliminary or permanent
injunctive relief, or any other equitable remedy which then may be available. The seeking of such
injunction or order shall not affect the Company’s right to seek and obtain damages or other
equitable relief on account of any such actual or threatened breach.




          (b) If any of the covenants contained in Sections 7, 8, 9 and 10 hereof, or any part thereof,
are hereafter construed to be invalid or unenforceable, the same shall not affect the remainder of
the covenant or covenants, which shall be given full effect without regard to the invalid portions.




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          (c) If any of the covenants contained in Sections 7, 8, 9 and 10 hereof, or any part thereof,
are held to be unenforceable by a court of competent jurisdiction because of the
temporal or geographic scope of such provision or the area covered thereby, the parties agree
that the court making such determination shall have the power to reduce the duration and/or
geographic area of such provision and, in its reduced form, such provision shall be enforceable.




     12. Representations Regarding Prior Work and Legal Obligations.



          (a) The Executive represents that the Executive has no agreement or other legal obligation
with any prior employer, or any other person or entity, that restricts the Executive’s ability to
accept employment with, or to perform any function for, the Company. The Company acknowledges
that Executive is party to an Employment Agreement with Performance Logistics Group, Inc. (“PTS”)
dated July 21, 2003, and consents to Executive’s continued employment by PTS through December 31,
2005 and thereafter his service as a member of the board of directors of PTS.




          (b) The Executive has been advised by the Company that at no time should the Executive divulge
to or use for the benefit of the Company any trade secret or confidential or proprietary
information of any previous employer. The Executive expressly acknowledges that the Executive has
not divulged or used any such information for the benefit of the Company.




          (c) The Executive acknowledges that the Executive has not and will not misappropriate any
Invention that the Executive played any part in creating while working for any former employer.




          (d) The Executive acknowledges that the Company is basing important business decisions on
these representations, and affirms that all of the statements included herein are true.




     13. Successors; Binding Agreement. This Agreement and all rights of the Executive
hereunder shall inure to the benefit of and be enforceable by the Executive’s personal or legal
representatives, executors, administrators, successors, heirs, distributees, devisees and legatees.
If the Executive should die, all amounts due following the Executive’s death, unless otherwise
provided herein, shall be paid in accordance with the terms of this Agreement to the Executive’s
devisee, legatee, or other designee or, if there is no such designee, to the Executive’s estate.



     14. Notice. For the purposes of this Agreement, notices, demands and all other
communications provided for in this Agreement shall be in writing and shall be deemed to have been
duly given when delivered or (unless otherwise specified) mailed by United States certified or
registered mail, return receipt requested, postage prepaid, addressed as follows:


If to the Executive:



Richard Roger

15 White Oak Drive

West Grove, PA 19390



PERSONAL AND CONFIDENTIAL




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If to the Company:


02Diesel Corporation

100 Commerce Drive

Suite 301

Newark, Delaware 19713


Attn: Corporate Secretary



     or to such other address as any party may have furnished to the other in writing in accordance
herewith, except that notices of change of address shall be effective only upon receipt.



     15. Miscellaneous. No provisions of this Agreement may be amended, modified, waived
or discharged unless such amendment, waiver, modification or discharge is agreed to in writing
signed by the Executive and such officer of the Company as may be specifically designated by the
Board. No waiver by either party hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time. No agreements or representations, oral or otherwise, express or implied,
with respect to the subject matter hereof have been made by either party which are not set forth
expressly in this Agreement. This Agreement shall be binding on all successors to the Company.



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



     17. Dispute Resolution. Any controversy or claim arising out of this Agreement or any
aspect of the Executive’s relationship with the Company including the cessation thereof (other than
disputes with respect to alleged violations of the covenants contained in Sections 7, 8, 9 or 10
hereof), shall be resolved by arbitration in accordance with the then existing Employment Dispute
Resolution Rules of the American Arbitration Association, in Wilmington, Delaware, and judgment
upon the award rendered may be entered in any court having jurisdiction thereof. The parties shall
split equally the costs of arbitration, except that each party shall pay its own attorneys’ fees.
The parties agree that the award of the arbitrator shall be final and binding.



     18. Governing Law. The validity, interpretation, construction and performance of this
Agreement shall be governed by and construed and enforced in accordance with the internal laws of
the State of Delaware without regard to the principle of conflicts of laws.



     19. Counterparts. This Agreement may be executed in two counterparts, each of which
shall be deemed to be an original but both of which together will constitute one and the same
instrument.



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     20. Survivorship. The respective rights and obligations of the parties to this
Agreement shall survive the termination of this Agreement or the Executive’s employment
hereunder for any reason to the extent necessary to the intended preservation of such rights
and obligations.



     21. Representation. The Company represents and warrants that it is fully authorized
and empowered to enter into this Agreement and that the performance of its obligations hereunder
shall not violate any agreement between the Company and any other person, firm or organization.



     22. Entire Agreement. This Agreement sets forth the entire agreement of the parties
hereto in respect of the subject matter contained herein and supersedes all prior agreements,
promises, covenants, arrangements, communications, representations or warranties, whether oral or
written, by any officer, employee or representative of any party hereto; and any prior agreement of
the parties hereto in respect of the subject matter contained herein is hereby terminated and
cancelled.



     23. Headings. The parties acknowledge that the headings in this Agreement are for
convenience of reference only and shall not control or affect the meaning or construction of this
Agreement.



     24. Advice of Counsel. The Executive and the Company hereby acknowledge that each
party has had adequate opportunity to review this Agreement, to obtain the advice of counsel with
respect to this Agreement, and to reflect upon and consider the terms and conditions of this
Agreement. The parties further acknowledge that each party fully understands the terms of this
Agreement and has voluntarily executed this Agreement.



[Signatures appear on following page]




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     IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and year first
above written.




	 	 	 
	EXECUTIVE

	 	02DIESEL CORPORATION
	 
	 

	 	By: /s/ Alan Rae
	 

	 	 
	 
	 	 
	 /s/ Richard Roger
	 	 
	 

	 	 
	Richard Roger

	 	Title: Chief Executive Officer
	 

	 	 
	 
	Dated: 6/9/2005

	 	Dated: 6/9/2005






SIGNATURE PAGE TO EMPLOYMENT AGREEMENT

OF RICHARD ROGER




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Annex A — Form of Release





	 	 	Employee hereby expressly waives, releases, acquits and forever discharges the Company and its
divisions, subsidiaries, affiliates, parents, related entities, partners, officers, directors,
shareholders, investors, executives, managers, employees, agents, attorneys, representatives,
successors and assigns (hereinafter collectively referred to as “Releases”), from any and all
claims, demands, and causes of action which Employee has or claims to have, whether known or
unknown, of whatever nature, which exist or may exist on Employee’s behalf from the beginning of
time up to and including the date of this Agreement. As used in this paragraph, “claims,”
“demands,” and “causes of action” include, but are not limited to, claims based on contract,
whether express or implied, defamation, wrongful termination, estoppels, equity, tort, retaliation,
intellectual property, personal injury, spoliation of evidence, emotional distress, public policy,
wage and hour law, statute or common law, claims for severance pay, claims related to stock options
and/or fringe benefits, claims for attorneys’ fees, vacation pay, debts, accounts, compensatory
damages, punitive or exemplary damages, liquidated damages, and any and all claims arising under
any federal, state, or local statute, law, or ordinance prohibiting discrimination on account of
race, color, sex, age, religion, sexual orientation, disability or national origin, including but
not limited to, the Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964
as amended, the Americans with Disabilities Act, the Family and Medical Leave Act or the Employee
Retirement Income Security Act.






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