EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT
(“Agreement”) is made as of March 27, 2009 by and between EnerTeck Corporation,
a Delaware corporation (“Company”), and Xxxx X. Xxxx (“Employee”).
WITNESSETH:
WHEREAS, Company is desirous
of contracting to employ Employee in an executive capacity on the terms and
conditions, and for the consideration, hereinafter set forth and Employee is
desirous of contracting to be employed by the Company on such terms
and conditions and for such consideration;
NOW, THEREFORE, for and in
consideration of the mutual promises, covenants and obligations contained
herein, Company and Employee agree as follows:
ARTICLE
1: EMPLOYMENT AND DUTIES
1.1 Employment; Effective
Date. Company agrees to employ Employee and Employee
agrees to be employed by Company, effective as of January 1, 2009
(the “Effective Date”), and continuing for the period of time set forth in
Article 2 of this Agreement, subject to the terms and conditions of this
Agreement.
1.2 Position. During
the term of employment under this Agreement, Company shall employ Employee in
the position of President of the Company, and/or in such other executive
positions with the Company and/or any of its Affiliates (as defined in paragraph
7.3) as the parties mutually may agree.
1.3 Duties and
Services. Employee agrees to serve in the position referred to
in paragraph 1.2 and to perform diligently and to the best of his abilities the
duties and services appertaining to such office as reasonably directed by
Company
1.4 Other
Interests. Employee agrees, during the period of his
employment by Company, to devote his full business time, energy and best efforts
to the business and affairs of Company and its Affiliates, provided that nothing
shall prohibit the Employee from participating on the board of directors of
companies unaffiliated and not in competition with the Company or from
participating in charitable, civic or educational activities or managing his
personal investments without the consent of the Board of Directors of the
Company provided that such activities do not interfere with the Employee’s
performance of his duties and responsibilities hereunder and involve no conflict
of interest with the interests of the Company.
1.5 Duty of
Loyalty. Employee acknowledges and agrees that Employee owes a
fiduciary duty of loyalty, fidelity and allegiance to act at all times in the
best interests of Company and to do no act which would injure the business,
interests, or reputation of Companyor any of its Affiliates. In
keeping with these duties, Employee shall make full disclosure to Company of all
business opportunities pertaining to Company’s business and shall not
appropriate for Employee’s own benefit business opportunities concerning the
subject matter of the fiduciary relationship.
1.6 Conflicts of Interest.
It is agreed that any direct or indirect interest in, connection with, or
benefit from any outside activities, particularly commercial activities, which
interest might in any way adversely affect Company or any of its Affiliates,
involves a possible conflict of interest. In keeping with Employee’s
fiduciary duties to Company, Employee agrees that Employee shall not knowingly
become involved in a conflict of interest with Company or any of its Affiliates,
or upon discovery thereof, allow such a conflict to
continue. Moreover, Employee agrees that Employee shall disclose to
the Company’s outside counsel any facts which might involve such a conflict of
interest that has not been approved by Company’s Board of Directors
(the “Board of Directors”). In some instances, full disclosure of facts by
Employee to the Company’s outside counsel may be all that is necessary to
enable Company or its Affiliates to protect its interests. Employee
agrees that the Company’s determination as to whether a conflict of interest
exists shall be conclusive. Company reserves the right to take such
action as, in its judgment, will end the conflict.
ARTICLE
2: TERM AND TERMINATION OF EMPLOYMENT
2.1 Term. Unless sooner
terminated pursuant to other provisions hereof, Company agrees to employ
Employee for the period (the “Term”) beginning on the Effective Date and ending
on December 31, 2010, and thereafter for such period, if any, as may be agreed
upon in writing by Employee and Company.
2.2 Company’s Right to
Terminate. Notwithstanding the provisions of paragraph 2.1,
Company shall have the right to terminate Employee’s employment under this
Agreement at any time prior to the expiration of the Term for any of the
following reasons:
(i) upon
Employee’s death;
(ii) upon
Employee becoming “Permanently Disabled,” which, for purposes of this Agreement,
shall mean Employee’s becoming disabled so as to render him incapable of
performing the duties associated with his employment;
(iii) for
“Cause,” which, for purposes of this Agreement, shall mean termination by action
of the Board of Directors because of Employee’s (A) conviction of a felony, (B)
willful refusal without proper legal cause to perform Employee’s duties and
responsibilities which remains uncorrected for seven days following written
notice to Employee by Company of such breach, (C) willfully engaging in conduct
that he knows or should know may be materially injurious to Company or any of
its Affiliates, (D) involvement in a conflict of interest as referenced in
paragraph 1.6 for which Company makes a determination to terminate the
employment of Employee which remains uncorrected for 30 days following written
notice to Employee by Company of such breach, (E) material breach of any
material provision of this Agreement or corporate code or policy which remains
uncorrected for 30 days following written notice to Employee by Company of such
breach, or (F) violation of the Foreign Corrupt Practices Act or other
applicable United States law as proscribed by paragraph 6.2; or
(iv) for
any other reason whatsoever, in the sole discretion of the Board of
Directors.
2.3 Employee’s Right to
Terminate. Notwithstanding the provisions of paragraph 2.1,
Employee shall have the right to terminate his employment under this Agreement
at any time prior to the expiration of the Term for any of the following
reasons:
(i) for
“Good Reason,” which for purposes of this Agreement shall mean termination by
employee within 60 days of and in connection with or based upon (A) a transfer
or assignment from Employee’s present position to a position which involves an
overall substantial and material reduction in the nature or scope of Employee’s
duties and responsibilities, (B) a reduction in Employee’s annual base salary as
established pursuant to paragraph 3.1 (including subsequent increases) or the
failure to continue Employee’s participation in any incentive compensation or
employee benefit plan or program (except a compensation or benefit plan or
program that is substantially comparable to an existing compensation or benefit
plan or program) in which Employee is participating or is eligible to
participate prior to such reduction (other than as a result of the expiration of
such plan or program), in each case other than as part of a general program to
reduce compensation or employee benefits on a proportional basis relative to
other employees of Company, (C) a permanent change and relocation of Employee
from the city in which Employee was serving immediately prior to the time of
such change to a place which is more than 50 miles away from such location, (D)
a Change of Control (as such term is defined in paragraph 7.3 hereof), or (E) a
material breach by Company of any material provision of this Agreement which
remains uncorrected for 30 days following written notice of such breach by
Employee to Company; or
(ii) for
any other reason whatsoever, in the sole discretion of Employee.
2.4 Notice of Termination; Delegation to
Board of Directors. If Company or Employee desires to
terminate Employee’s employment hereunder at any time prior to expiration of the
Term pursuant to paragraph 2.2 or 2.3, respectively, it or he shall do so by
giving written notice to the other party that it or he has elected to terminate
Employee’s employment hereunder and stating the effective date and reason for
such termination; provided that no such action shall alter or amend any other
provisions hereof or rights arising hereunder; and, provided further, that
Company shall consult in good faith with Employee and provide a reasonable
opportunity for Employee to be heard prior to terminating Employee’s employment
hereunder for Cause. It is expressly acknowledged and agreed that the decision
as to whether Cause exists for termination of the employment relationship by
Company is delegated to the Board of Directors for determination. If Employee
disagrees with the decision reached by the Board of Directors, then the dispute
will be limited to whether the Board of Directors reached its decision in good
faith.
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ARTICLE
3: COMPENSATION
3.1 Base Salary. During
the period beginning on the Effective Date and ending on December 31, 2010,
Employee shall receive an annual base salary equal to $200,000. Such
annual base salary shall be subject to review each year for possible increase by
the Board of Directors in its sole discretion, provided, however, that it shall
have no obligation to grant any such increases in base
salary. Employee has agreed to accrual of said salary until the
earlier of (i) such time that the Company’s financial condition improves so that
payment of said salary does not cause undue financial burden to the Company
which shall be determined by the Board of Directors at its sole discretion, or
(ii) January 1, 2010. At such time, Employee’s accrued salary shall
be paid in full without interest and the balance of Employee’s annual base
salary shall thereupon be paid in equal installments in accordance with
Company’s standard policy regarding payment of compensation to
executives.
3.2 Incentive
Compensation. While Employee is actively employed under this
Agreement, Employee shall be entitled to participate in any long term and annual
incentive plans and arrangements presently existing or as may be adopted from
time to time by the Company’s Compensation Committee or Board of
Directors.
3.3 Other Employee
Benefits. While employed by Company, Employee shall be allowed
to participate, on the same basis generally as other employees of Company, in
all general employee benefit plans and programs, including improvements or
modifications of the same, which on the Effective Date or thereafter are made
available by Company to Company’s employees. Such benefits plans, and
programs may include, without limitation, medical, health, and dental care, life
insurance, disability protection, and pension plans. Nothing in this
Agreement is to be construed or interpreted to provide greater rights,
participation, coverage, or benefits under such benefit plans or programs than
provided to similarly situated employees pursuant to the terms and conditions of
such benefit plans and programs. In addition, while the Employee is
actively employed under this Agreement, the Employee shall be entitled to
twenty-five (25) days of vacation pay per year, to be used in accordance with
the Company’s vacation pay policy for executives, provided however, that up to
five (5) days of unused vacation time in a particular year may be carried over
to the subsequent year subject to the reasonable approval of the Board of
Directors.
3.4 Changes
Permitted. Company shall not by reason of paragraphs 3.2 and
3.3 be obligated to institute, maintain, or refrain from changing, amending, or
discontinuing, any of such benefit plans or programs, so long as such actions
are similarly applicable to covered employees generally. Unless specifically
provided for in a written plan document adopted by the Board of Directors, none
of the benefits or arrangements described in this Article shall be secured or
funded in any way, and each shall instead constitute an unfunded and unsecured
promise to pay money in the future exclusively from the general assets of
Company.
3.5 Stock Option Grant
Agreements. Contemporaneously with the execution of this
Agreement, Company shall issue to Employee a Stock Option Grant Agreement
substantially in the form attached hereto as Exhibit A pursuant to which
Employee shall be awarded as of the date hereof an option to purchase 200,000
shares of Company’s common stock at a purchase price per share of $1.00 which
option shall be 25% vested as of the date hereof, become 100% vested on January
1, 2010 and shall expire five years after the Effective Date.
ARTICLE
4: PROTECTION OF INFORMATION
4.1 Disclosure to Employee.
Company shall disclose to Employee, or place Employee in a position to have
access to or develop, trade secrets or confidential information of Company or
its Affiliates; and/or shall entrust Employee with business opportunities of
Company or its Affiliates; and/or shall place Employee in a position to develop
business good will on behalf of Company or its Affiliates.
4.2 Disclosure to and Property of
Company. All information, ideas, concepts, improvements,
discoveries, and inventions, whether patentable or not, which are conceived,
made, developed, or acquired by Employee, individually or in conjunction with
others, during Employee’s employment by Company (whether during business hours
or otherwise and whether on Company’s premises or otherwise) which relate to
Company’s business, products, or services (including, without limitation, all
such information relating to corporate opportunities, research, financial and
sales data, pricing terms, evaluations, opinions, interpretations, acquisition
prospects, the identity of customers or their requirements, the identity of key
contacts within the customer’s organizations or within the organization of
acquisition prospects, or marketing and merchandising techniques, prospective
names, and marks) shall be disclosed to Company and are and shall be the sole
and exclusive property of Company. Moreover, all documents drawings,
memoranda, notes, records, files, correspondence, manuals, models,
specifications, computer programs, E-mail, voice mail, electronic databases,
maps and all other writings or materials of any type embodying any of such
information, ideas, concepts, improvements, discoveries, and inventions are and
shall be the sole and exclusive property of Company. Upon termination
of Employee’s employment by Company, for any reason, Employee promptly shall
deliver the same, and all copies thereof, to Company.
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4.3 No Unauthorized Use or
Disclosure. Employee will not, at any time during or after
Employee’s employment by Company, make any unauthorized disclosure of any
confidential business information or trade secrets of Company or its Affiliates,
or make any use thereof, except in the carrying out of Employee’s employment
responsibilities hereunder. Affiliates of the Company shall be third
party beneficiaries of Employee’s obligations under this
paragraph. As a result of Employee’s employment by Company, Employee
may also from time to time have access to, or knowledge of, confidential
business information or trade secrets of third parties, such as customers,
suppliers, partners, joint venturers, and the like, of Company and its
Affiliates. Employee also agrees to preserve and protect the
confidentiality of such third party confidential information and trade secrets
to the same extent, and on the same basis, as Company’s confidential business
information and trade secrets.
4.4 Ownership by
Company. If, during Employee’s employment by Company, Employee
creates any work of authorship fixed in any tangible medium of expression which
is the subject matter of copyright (such as videotapes, written presentations,
or acquisitions, computer programs, E-mail, voice mail, electronic databases,
drawings, maps, architectural renditions, models, manuals, brochures, or the
like) relating to Company’s business, products, or services, whether such work
is created solely by Employee or jointly with others (whether during business
hours or otherwise and whether on Company’s premises or otherwise), Company
shall be deemed the author of such work if the work is prepared by Employee in
the scope of Employee’s employment; or, if the work is not prepared by Employee
within the scope of Employee’s employment but is specially ordered by Company as
a contribution to a collective work, as a part of a television commercial,
internet interview or other audiovisual work, as a translation, as a
supplementary work, as a compilation, or as an instructional text, then the work
shall be considered to be work made for hire and Company shall be the author of
the work.
ARTICLE
5: NON-COMPETITION OBLIGATIONS
5.1 In General. As part
of the consideration for the compensation and benefits to be paid to Employee
hereunder; to protect the trade secrets and confidential information of Company
and its Affiliates that have been and will in the future be disclosed or
entrusted to Employee, the business good will of Company and its Affiliates that
has been and will in the future be developed in Employee, or the business
opportunities that have been and will in the future be disclosed or entrusted to
Employee by Company and its Affiliates; and as an additional incentive for
Company to enter into this Agreement, Company and Employee agree to the
non-competition obligations hereunder: Employee will not, directly or
indirectly for Employee or for others, in any geographic area or market where
Company or any of its Affiliates are conducting any business as of the date of
termination of the employment relationship or have during the previous 12 months
conducted such business:
(i) engage
in any business similar or related to or competitive with the business conducted
by Company or any of its Affiliates herein described as performance improvement
catalysts for diesel engine applications and any other new business affairs
entered into by the Company prior to termination of this Employment
contract.
(ii) render
advice or services to, or otherwise assist, any other person, association, or
entity who is engaged, directly or indirectly, in any business similar or
related to or competitive with the core business of Company;
(iii) transact
any business in any manner pertaining to suppliers or customers of Company or
any of its Affiliates which, in any manner, would have, or is likely to have, an
adverse effect upon Company or any of its Affiliates; or
(iv) induce
any employee of Company or any of its Affiliates to terminate his or her
employment with Company or any of its Affiliates, or hire or assist in the
hiring of any such employee by any person, association, or entity not affiliated
with Company. These non-competition obligations shall be applicable during the
Term and extend for a period of one year following the later of (A) termination
of the employment relationship, or (B) the time Employee is receiving a salary
or benefits pursuant to paragraph 7.1 hereof. If Company abandons a
particular aspect of the core business of Company, that is, ceases such aspect
of its business with the intention to permanently refrain from such aspect of
its business, then this post-employment non-competition covenant shall not apply
to such former aspect of Company’s business.
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5.2 Enforcement and Remedies.
Employee understands that the restrictions set forth in Article 4 and this
Article 5, in view of the nature of the business in which the Company is
engaged, are reasonable and necessary to protect the legitimate interests of the
Company. Employee acknowledges that money damages would not be
sufficient remedy for any breach of such restrictions by Employee, and Company
shall be entitled to enforce the provisions of Article 4 and this Article 5 by
terminating any payments then owing to Employee under this Agreement and/or to
specific performance and injunctive relief as remedies for such breach or any
threatened breach. Such remedies shall not be deemed the exclusive
remedies for a breach of such restrictions, but shall be in addition to all
remedies available at law or in equity to Company, including, without
limitation, the recovery of damages from Employee and Employee’s agents involved
in such breach and remedies available to Company pursuant to other agreements
with Employee.
5.3 Reformation. It is
expressly understood and agreed that Company and Employee consider the
restrictions contained in this Article to be reasonable and necessary to protect
the proprietary information of Company. Nevertheless, if any of the
aforesaid restrictions are found by a court having jurisdiction to be
unreasonable, or overly broad as to geographic area or time, or otherwise
unenforceable, the parties intend for the restrictions therein set forth to be
modified by such courts so as to be reasonable and enforceable and, as so
modified by the court, to be fully enforced.
ARTICLE
6: STATEMENTS CONCERNING COMPANY; UNITED
STATES
FOREIGN
CORRUPT PRACTICES ACT AND OTHER LAWS
6.1 Statements Concerning
Company. Employee shall refrain, both during the employment
relationship and after the employment relationship terminates, from publishing
any oral or written statements about Company, any of its Affiliates, or any of
such entities’ officers, employees, agents or representatives that are
slanderous, libelous, or defamatory; or that disclose private or confidential
information about Company, any of its Affiliates, or any of such entities’
business affairs, officers, employees, agents, or representatives; or that
constitute an intrusion into the seclusion or private lives of Company, any of
its Affiliates, or any of such entities’ officers, employees, agents, or
representatives; or that give rise to unreasonable publicity about the private
lives of Company, any of its Affiliates, or any of such entities’ officers,
employees, agents, or representatives; or that place Company, any
of its Affiliates, or any of such entities’ officers, employees,
agents, or representatives in a false light before the public; or that
constitute a misappropriation of the name or likeness of Company, any of its
Affiliates, or any of such entities’ officers, employees, agents, or
representatives. A violation or threatened violation of this
prohibition may be enjoined by the courts. The rights afforded the Company and
its Affiliates under this provision are in addition to any and all rights and
remedies otherwise afforded by law.
6.2 United States Foreign Corrupt
Practices Act and Other Laws. Employee shall at all times
comply with United States laws applicable to Employee’s actions on behalf of
Company, including specifically, without limitation, the United States Foreign
Corrupt Practices Act, generally codified in 15 U.S.C. 78 (the “FCPA”), as the
FCPA may hereafter be amended, and/or its successor statutes. If Employee pleads
guilty to or nolo contendere or admits civil or criminal liability under the
FCPA or other applicable United States law, or if a court finds that Employee
has personal civil or criminal liability under the FCPA or other applicable
United States law, or if a court finds that Employee committed an action
resulting in Company or any of its Affiliates having civil or criminal liability
or responsibility under the FCPA or other applicable United States law with
knowledge of the activities giving rise to such liability or knowledge of facts
from which Employee should have reasonably inferred the activities giving rise
to liability had occurred or were likely to occur, such action or finding shall
constitute “Cause” for termination under this Agreement unless the Board of
Directors determines that the actions found to be in violation of the FCPA or
other applicable United States law were taken in good faith and in compliance
with all applicable policies of Company.
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ARTICLE
7: EFFECT OF TERMINATION ON COMPENSATION
7.1 In General. If
Employee’s employment hereunder shall terminate upon expiration of the Term or
if such employment shall be terminated by Employee or by Company prior to the
expiration of the Term for any reason whatsoever, then, upon such termination,
regardless of the reason, all compensation and all benefits to Employee
hereunder shall terminate contemporaneously with the termination of such
employment, except that if Employee’s employment is terminated (i) by the
Company for any reason (other than Cause, or due to the Employee’s death or
becoming Permanently Disabled) prior to the expiration of the Term, or (ii) by
the Employee for Good Reason prior to the expiration of the Term, then Employee
shall be entitled to receive the following benefits although Employee’s active
employment shall cease :
(i) All
payments of the annual base salary under paragraph 3.1 (in the amount in effect
on the date Employee’s employment is terminated) and, if applicable, bonus
payments under any long term and annual incentive plans and arrangements then
existing (based upon Employee’s most recent bonus payment amount received prior
to the date Employee’s employment is terminated) at such time and in such manner
provided for in Article 3 hereof for the remainder of the Term as if Employee’s
employment had continued through the Term; and
(ii) Employee
may participate in all general benefit plans and programs made available by
Company to Company’s employees provided for in paragraph 3.3 for the remainder
of the Term as if Employee’s employment had continued through the
Term.
7.2 Incentive and Deferred
Compensation. This Agreement governs the rights and
obligations of Employee and Company with respect to Employee’s base salary and
certain perquisites of employment. Employee’s rights and obligations
both during the term of his employment and thereafter with respect to stock
options, restricted stock, performance units, life insurance policies insuring
the life of Employee, and other benefits under the plans maintained by Company
shall be governed by the separate agreements, plans and other documents and
instruments governing such matters; provided, however, that upon Employee’s
termination of employment hereunder for any reason whatsoever, the benefits
payable to Employee shall be paid, when distributable, within 90 days of
termination of employment.
7.3 Certain Defined Terms.
For purposes of this Agreement, the following terms shall have the meanings
ascribed to them below:
(i) “Affiliate”
shall mean any entity which owns or controls, is owned or controlled by, or is
under common ownership or control with, Company.
(ii) “Beneficial
Owner” shall be defined by reference to Rule 13(d)-3 under the Securities
Exchange Act of 1934, as in effect on the date hereof; provided, however, and
without limitation, any individual, corporation, partnership, group, association
or other person or entity which has the right to acquire any Voting Stock at any
time in the future, whether such right is contingent or absolute, pursuant to
any agreement, arrangement or understanding or upon exercise of conversion
rights, warrants or options, or otherwise, shall be the Beneficial Owner of such
Voting Stock.
(iii) “Change
of Control” shall mean (A) Company merges or consolidates with any
other corporation (other than one of Company’s wholly owned subsidiaries) and is
not the surviving corporation (or survives only as the subsidiary of another
corporation), (B) Company sells all or substantially all of its assets to any
other person or entity, (C) Company is dissolved, (D) any third person or entity
(other than the trustee or committee of any qualified employee benefit plan of
Company) together with its Affiliates and associates shall become, directly or
indirectly, the Beneficial Owner of at least 30% of the Voting Stock of Company,
or (E) the individuals who constitute the members of the Board of Directors (the
“Incumbent Board”) cease for any reason to constitute at least a majority
thereof, provided that any person becoming a director whose election or
nomination for election by Company stockholders was approved by a vote of at
least 80% of the directors comprising the Incumbent Board (either by a specific
vote or by approval of the proxy statement of Company in which such person is
named as a nominee for director, without objection to such nomination) shall be,
for purposes of this clause (E), considered as though such person were a member
of the Incumbent Board.
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(iv) “Voting
Stock” shall mean all outstanding shares of capital stock of Company entitled to
vote generally in elections for directors, considered as one class; provided,
however, that if Company has shares of Voting Stock entitled to more or less
than one vote for any such share, such reference to a proportion of shares of
Voting Stock shall be deemed to refer to such proportion of the votes entitled
to be cast by such shares.
7.4 Liquidated
Damages. In light of the difficulties in estimating the
damages for an early termination of this Agreement, Company and Employee hereby
agree that the payments, if any, to be received by Employee pursuant to
paragraph 7.1 or paragraph 7.2 shall be received by Employee as liquidated
damages.
ARTICLE
8: MISCELLANEOUS
8.1 Notices. For
purposes of this Agreement, notices and all other communications provided for
herein shall be in writing and shall be deemed to have been duly given when
personally delivered, delivered by reputable overnight courier, or when mailed
by United States registered or certified mail, return receipt requested, postage
prepaid, addressed as follows:
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If
to Company to:
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EnerTeck
Corporation
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00000
Xxxxxxxxx Xxxxx
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Xxxxx
000
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Xxxxxxxx,
XX 00000
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Attention: Chief
Executive Officer
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If
to Employee to:
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Xxxx
X. Xxxx
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0000
Xxxxx Xxxxxx Xxxx
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Xxxxxxx,
XX 00000
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or to
such other address as either party may furnish to the other in writing in
accordance herewith, except that notices of changes of address shall be
effective only upon receipt.
8.2 Applicable
Law. This Agreement is entered into under, and shall be
governed for all purposes by, the laws of the State of Texas, excluding any
conflict-of-law rule or principle that might refer the construction of this
Agreement to the laws of another State or country. The parties agree
that this Agreement is to be at least partially performed in Houston, Xxxxxx
County, Texas.
8.3 No Waiver. No
failure by either party hereto at any time to give notice of any breach by the
other party of, or to require compliance with, any condition or provision of
this Agreement shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time.
8.4 Severability. It is
a desire and intent of the parties that the terms, provisions, covenants and
remedies contained in this Agreement shall be enforceable to the fullest extent
permitted by law. If any such term, provision, covenant, or remedy of
this Agreement or the application thereof to any person, association, or entity
or circumstances shall, to any extent, be construed to be invalid or
unenforceable in whole or in part, then such term, provision, covenant, or
remedy shall be construed in a manner so as to permit its enforceability under
the applicable law to the fullest extent permitted by law. In any
case, the remaining provisions of this Agreement or the application thereof to
any person, association, or entity or circumstances other than those to which
they have been held invalid or unenforceable, shall remain in full force and
effect.
8.5 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 Agreement.
8.6 Withholding of Taxes and Other
Employee Deductions. Company may withhold from any benefits
and payments made pursuant to this Agreement all federal, state, city and other
taxes as may be required pursuant to any law or governmental regulation or
ruling and all other normal employee deductions made with respect to Company’s
employees generally.
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8.7 Headings. The
paragraph headings have been inserted for purposes of convenience and shall not
be used for interpretive purposes.
8.8 Gender and Plurals. Wherever
the context so requires, the masculine gender includes the feminine or neuter,
and the singular number includes the plural and conversely.
8.9 Assignment. This
Agreement shall be binding upon and inure to the benefit of Company and any
successor of Company, by merger or otherwise. Except as provided in the
preceding sentence, this Agreement, and the rights and obligations of the
parties hereunder, are personal andneither this Agreement, nor any right,
benefit, or obligation of either party hereto, shall be subject to voluntary or
involuntary assignment, alienation or transfer, whether by operation of law or
otherwise, without the prior written consent of the other party.
8.10 Term. This
Agreement has a term co-extensive with the Term as provided in paragraph 2.1.
Termination shall not affect any right or obligation of any party which is
accrued or vested prior to such termination. Without limiting the scope of the
preceding sentence, the provisions of Articles 4, 5, and 6 shall survive any
termination of the employment relationship and/or of this
Agreement.
8.11 Entire
Agreement. Except as provided in (i) written company policies
promulgated by Company dealing with issues such as securities trading, business
ethics, governmental affairs and political contributions, consulting fees,
commissions or other payments, compliance with law, investments and outside
business interests as officers and employees, reporting responsibilities,
administrative compliance, and the like, (ii) the written benefits, plans, and
programs referenced in paragraphs 3.2 and 3.3, and (iii) any signed written
agreements contemporaneously or hereafter executed by Company and Employee this
Agreement constitutesthe entire agreement of the parties with regard to such
subject matters, and contains all of the covenants, promises, representations,
warranties, and agreements between the parties with respect to Employee’s
employment relationship with Employer and the term and termination of such
relationship, and replaces and merges previous agreements and discussions
pertaining to the employment relationship between Employer and
Employee.
8.12 Choice of
Counsel. Employee agrees that Xxxx Xxxxxx Xxxxx Xxx &
Xxxxxxxxx, LLP, the draftsperson of this Agreement, has prepared this Agreement
on behalf of the Company and is not representing the Employee in an individual
capacity in the negotiation and consummation of the transactions hereunder. The
Employee further agrees that he has participated in the preparation of this
Agreement and has read and fully understands this Agreement and has been advised
and has had the opportunity to retain independent counsel of his own choosing
and has done so to the extent he has deemed necessary.
8.13 Negotiated
Agreement. This is a negotiated
agreement. This Agreement shall not be construed against the Company
by reason of this Agreement being prepared by counsel to the
Company.
IN WITNESS WHEREOF, the
parties hereto have executed this Agreement as of the date first above written,
to be effective as of the Effective Date.
| ENERTECK CORPORATION | |||
|
|
By:
|
/s/ Xxxxxx Xxxxx | |
| Name: | Xxxxxx Xxxxx | ||
| Title: | Chief Executive Officer | ||
|
|
|
/s/ Xxxx X. Xxxx | |
|
XXXX X.
XXXX
|
|
||
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