SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT Between TRULITE, INC. and ERIC J. LADD dated as of March 28, 2006
Exhibit
10.26
SECOND
AMENDED AND RESTATED
Between
TRULITE,
INC.
and
XXXX
X.
XXXX
dated
as
of March 28, 2006
AMENDED
AND RESTATED
This
AMENDED AND RESTATED EMPLOYMENT
AGREEMENT (this
“Agreement”) is made effective as of the 26th
day of
March, 2006 by and between Trulite, Inc., a Delaware corporation (the
“Company”), and Xxxx X. Xxxx (“Employee”).
WITNESSETH:
WHEREAS,
Employee entered into that certain Employment Agreement, dated as of July 28,
2004, with the Company (the “Original Agreement”), and agreed to serve as an
employee of the Company according to the terms of the Original Agreement;
and
WHEREAS,
Employee entered into that certain Amended and Restated Employment Agreement
dated February 4, 2005, with the Company (the “Second Agreement”);
and
WHEREAS,
Employee and
the
Company now wish to further amend the Second Agreement to set forth the terms
under which employee shall be employed on a full-time basis by the Company
rather than one-half time, along with other amendments as set forth herein
below, and to restate in their entirety the terms of employee’s employment by
the Company.
NOW,
THEREFORE, in consideration of the continued employment of employee by the
Company and the payment of salary and other compensation to employee by the
Company, the parties hereto agree as follows:
1.
Employment.
The
Company hereby agrees to continue to employ employee, and employee hereby agrees
to continue to serve the Company, on the terms and conditions set forth
herein.
2.
Term.
Employee shall continue to be employed by the Company as provided in Section
1
and such employment shall continue until January 31, 2007,
unless sooner terminated as herein provided and Employment
is terminable for any reason whatsoever by either the Company or employee upon
thirty (30) days prior written notice to the other party, except that the
Company may terminate this Agreement immediately for Cause, as defined herein
below.
3.
Position
and Duties.
(a)
The
Company agrees to continue to employ employee in the capacity of Controls and
Systems Engineer and employee agrees to continue to be so employed, in such
capacity and having such duties and responsibilities which include, but not
be
limited, to the following:
| · |
Kitty
hawk III and IV controlled design, documentation and
fabrication
|
| · |
Kitty
hawk III and IV Software design, documentation and
programming.
|
| · |
Electrical
Engineering for the Kitty hawk III and IV product
lines
|
| · |
Electrical
Engineering Training and documentation.
|
as
are
assigned to employee from time to time by the Company’s Board of Directors or
such officer of the Company that the Board of Directors designates as
employee’s supervisor.
(b)
Employee agrees to devote all of his full business time and attention to the
business and affairs of the Company and will use his best efforts in performing
faithfully his duties under this Agreement.
(c)
Employee shall use his reasonable best efforts to perform faithfully and
efficiently his duties under this Agreement, and shall not engage in or be
employed by any other business; provided, however, that nothing contained herein
shall prohibit employee from (i) serving as a member of the board of directors,
board of trustees or the like of any for-profit entity that does not compete
with the Company, or performing services of any type for any civic or community
entity, whether or not employee receives compensation therefore, (ii) investing
his assets in such form or manner as shall not require any significant services
on his part in the operation of the business of or property in which such
investment is made as long as such business does not compete with the Company,
or (iii) serving in various capacities with, and attending meetings of, industry
or trade groups and associations, as long as employee’s engaging in any
activities permitted by virtue of clauses (i), (ii) and (iii) above does not
materially interfere with the ability of employee to perform the services and
discharge the responsibilities required of him under this
Agreement.
4.
Compensation
and Related Matters.
(a)
Salary.
During
the term of this Agreement, the Company shall pay to employee an annual salary
of $80,000 in substantially equal installments in accordance with the Company’s
payroll policies.
(b)
Option.
Subject
to the approval of the Company’s Board of Directors or its Compensation
Committee, you will be granted an option to purchase 174,826 shares of the
Company’s common stock. The exercise price per share will be equal to the fair
market value per share on the date the option is granted. The option will be
subject to the terms and conditions applicable to options granted under the
Company’s Stock Option Plan (the “Plan”), as described in the Plan and the
applicable Stock Option Agreement in substantially the form attached hereto
as
Exhibit “A” (the “Option Agreement”). The option shall vest immediately and the
purchased shares will be subject to repurchase by the Company at fair market
value in the event that your service terminates for any reason. The Option
Agreement shall contain such other terms as shall be determined by the Board
of
Directors of the Company.
(c)
Expenses.
During
the term of employee’s employment hereunder, employee shall be entitled to
receive prompt reimbursement for all reasonable and necessary expenses incurred
by employee in performing services hereunder, including all travel and living
expenses while away from home on business or at the request of and in the
service of the Company, cell phone expenses and entertainment expenses incurred
by employee at the request of and in the service of the Company, provided that
such expenses are incurred and accounted for in accordance with the policies
and
procedures established by the Company, as may be amended from time to
time.
(d)
Benefits.
Employee shall be entitled to participate in or receive benefits under any
group
health or other employee benefit plan or arrangement made available by the
Company to its other similarly situated employees who perform the same or
similar duties as employee
in the same location, subject to and on a basis consistent with the terms,
conditions and overall administration of such plans and
arrangements.
(e)
Sick
Leave.
Employee shall be entitled to sick and emergency leave in accordance with the
regular policies and procedures established by the Company. Any additional
sick
or emergency leave over and above paid leave provided by the Company, if any,
shall be unpaid and shall be granted at the sole discretion of the Board of
Directors of the Company.
(f)
Vacations.
Employee shall be excused from rendering his services during reasonable vacation
periods for 10 business days per year plus any additional vacation days that
may
be approved by the Chief Executive Officer of the Company or such other officer
of the Company that the Company’s Board of Directors designates as employee’s
supervisor. Employee shall also be entitled to all paid holidays given by the
Company to its employees generally.
5.
Termination.
Employee’s employment hereunder may be terminated under the following
circumstances:
(a)
Termination
of Employment for Cause.
The
Company may terminate the employment of the employee if the employee
engages in any of the following conduct (termination for “Cause”):
(i)
Breaching
any material provision of this Agreement;
(ii)
Misappropriating
funds or property of the Company;
(iii)
Securing
any personal profit not thoroughly disclosed to and approved by the Company
in
connection with any transaction entered into on behalf of the
Company;
(iv) Engaging
in conduct, even if not in connection with the performance of his duties
hereunder, which might be reasonably expected to result in any effect materially
adverse to the interests of the Company, such as fraud, dishonesty, conviction
of a felony, or other acts of moral turpitude;
(v) Failing
to fulfill and perform the duties assigned to the employee in accordance with
the terms hereof; or
(vi) Failing
to comply with corporate policies of the Company that are promulgated from
time
to time by the Company’s Board of Directors.
(b)
Termination
in the Event of Death or Disability.
(i) The
Employer may terminate this Agreement in the event employee becomes and remains
“Disabled” (as hereinafter defined), either physically, mentally, or otherwise,
for a period of ninety (90) days during any consecutive period. As used herein,
“Disabled” shall mean the continuous inability, whether mental or physical, of
the employee to perform his normal job functions as determined by at least
two
(2) of three medical physicians. For purposes of such determination, the
employee or his designee shall be entitled to appoint one physician, the Company
shall be entitled to appoint one physician, and the two (2) physicians shall
mutually appoint a third physician. Notwithstanding the foregoing, the employee
or his designee and the Company may mutually agree that the employee is Disabled
within the meaning of this Agreement.
(ii) This
Agreement shall immediately terminate upon the death of employee.
(c)
Termination
Without Cause.
Either
party may terminate the employment of employee without Cause at any time upon
written notice to the other party.
6.
Effect
of
Termination of Employment.
(a)
Termination
for Cause.
In the
event of termination for Cause, the employee shall be entitled to receive his
compensation, as determined in Section 4 of this Agreement, due or accrued
on a
pro rata basis to the date of termination less the amount of actual damages,
if
any, caused to the Company by such breach of this Agreement.
(b)
Termination
upon death or Disability.
In the
event of termination for death or Disability of the employee, the employee
or
his estate shall be entitled to receive his compensation, as determined in
Section 4 of this Agreement, due or accrued on a pro rata basis to the effective
date of termination.
(c)
Termination
Without Cause.
In the
event the Company terminates employee’s employment without Cause, the Company
shall continue making payments to employee in an amount equal to the
compensation of the employee set forth in Section 4(a) of this Agreement, as
if
he were still employed for six (6) months, which shall constitute the full
and
total amount of liquidated damages that the employee shall be entitled to
receive from the Company and its Affiliates and their officers, directors,
and
employees whether arising out of contract, tort or other claims arising out
of
his employment relationship with the Company.
(d)
Company’s
Right to Repurchase Shares.
In the
event that employee’s employment is terminated by the Company for Cause or by
employee’s voluntary departure, the Company shall have the right to repurchase
all Common Stock owned by employee at fair market value, as defined below.
In
the event that employee’s employment is terminated by the Company without Cause,
the employee shall be entitled to retain the stock he owns. The Company shall
have the right to repurchase any unvested portion of the stock subject to the
Option at fair market value, as defined below. “Fair market value,” for the
purposes of this Section 6, shall be determined by a qualified business
valuation or appraisal expert chosen jointly by the employee and the Company’s
Board of Directors.
7.
Confidentiality,
Non-Solicitation, and Non-Competition.
(a)
Confidential
Information.
Employee acknowledges that (i) upon execution of this Agreement and during
the
term of this Agreement and as a part of his employment with the Company and
any
subsidiaries, whether pursuant to this Agreement or otherwise, employee has
been
and will be afforded access to “Confidential Information” as hereinafter
defined; (ii) public disclosure of such Confidential Information could have
a
material adverse impact on the Company and its business; and (iii) as a result
of his access to such Confidential Information, employee will attain substantial
technical expertise, skill and knowledge with respect to the Company’s business.
Employee acknowledges that the provisions of this Section 7(a) are reasonable
and necessary with respect to the improper use or disclosure of Confidential
Information. As used in this Agreement, “Confidential Information” means any
information, knowledge or data of any nature and in any form (including
information that is electronically transmitted or stored on any form of magnetic
or electronic storage media) relating to the past, current or prospective
business or operations of the Company and its Affiliates, that at the time
or
times concerned is not generally known to persons engaged in businesses similar
to those conducted or contemplated by the Company and its Affiliates (other
than
information known by such persons through a violation of an obligation of
confidentiality to the Company), whether produced by the Company and its
Affiliates or any of their consultants, agents or independent contractors or
by
employee, and whether or not marked confidential, including without limitation
information relating to the Company’s or its Affiliates’ products and services,
business plans, business acquisitions, processes, product or service research
and development methods or techniques, inventions and improvements, training
methods and other operational methods or techniques, quality assurance
procedures or standards, operating procedures, files, plans, specifications,
proposals, drawings, charts, graphs, support data, trade secrets, supplier
lists, supplier information, purchasing methods or practices, distribution
and
selling activities, consultants’ reports, marketing and engineering or other
technical studies, maintenance records, employment or personnel data, marketing
data, strategies or techniques, financial reports, budgets, projections, cost
analyses, price lists and analyses, employee lists, customer lists, customer
source lists, proprietary computer software, and internal notes and memoranda
relating to any of the foregoing.
(b)
Non-Disclosure
of Confidential Information.
In
consideration of the foregoing and of continued employment by the Company and
the compensation and benefits paid or provided and to be paid or provided to
employee by the Company pursuant to this Agreement, employee hereby covenants
and agrees that during the term of this Agreement and for a period of one (1)
year thereafter, employee shall not, without the Company’s prior written consent
or as may be required by law or legal process, disclose, communicate, divulge
or
make available to any person or entity (other than the Company), or use for
any
purpose other than for the exclusive benefit of the Company, any Confidential
Information, whether employee has such information in his memory or embodied
in
writing or other physical form. Upon termination of employee’s employment
hereunder, employee shall deliver promptly to the Company any Confidential
Information in his possession, including any duplicates thereof and any notes
or
other records employee has prepared with respect thereto. In the event that
the
provisions of any applicable law or the order of any court would require
employee to disclose or otherwise make available any Confidential Information
then employee shall give the Company prompt prior written notice of such
required disclosure and an opportunity to contest the requirement of such
disclosure or apply for a protective order with respect to such Confidential
Information by appropriate proceedings. Employee agrees that disclosures made
by
the Company or its affiliates to governmental authorities, to its customers
or
potential customers, to its suppliers or potential suppliers, to its employees
or potential employees, to its consultants or potential consultants or
disclosures made by the Company or its affiliates in any litigation or
administrative or governmental proceedings shall not mean that the matters
so
disclosed are available to the general public. The foregoing, however, shall
not
limit the Company’s authority to determine whether or not any such information
has been so disclosed.
(c)
Protection
of Information.
(i) The
Company shall disclose to employee, or place employee in a position to have
access to or develop, trade secrets or confidential information of the Company;
and/or shall entrust employee with business opportunities of the Company; and/or
shall place employee in a position to develop business good will on behalf
of
the Company.
(ii) Employee
agrees not to disclose or utilize, for employee’s
personal benefit or for the direct or indirect benefit of any other person
or
entity, or for any other reason, whether for consideration or otherwise, during
the term of his employment hereunder or at any time thereafter, any information,
ideas, concepts, improvements, discoveries or 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 the Company
(whether during business hours or otherwise and whether on the Company’s
premises or otherwise) which relate to the business, products, or services
of
the Company (including, without limitation, all such business ideas, prospects,
proposals or other opportunities which are developed by employee during his
employment hereunder, or originated by any third party and brought to the
attention of employee during his employment hereunder, together with information
relating thereto (including, without limitation, data, memoranda, opinions
or
other written, electronic or charted means, or any other trade secrets or other
confidential or proprietary information of or concerning the Company))
(collectively, “Business Information”). Moreover, all documents, drawings,
notes, files, data, records, correspondence, manuals, models, specifications,
computer programs, E-mail, voice mail, electronic databases, maps, and all
other
writings or materials of any type embodying any such Business Information are
and shall be the sole and exclusive property of the Company. Upon termination
of
employee’s employment hereunder, for any reason, employee promptly shall deliver
all Business Information, and all copies thereof, to the Company. As a result
of
knowledge of confidential Business Information of third parties, such as
customers, suppliers, partners, joint ventures, and the like, of the Company,
employee also agrees to preserve and protect the confidentiality of such third
party Business Information to the same extent, and on the same basis, as the
Company’s Business Information.
(iii) Employee
agrees that, during his employment, any inventions (whether or not patentable),
concepts, ideas, expressions, discoveries, or improvements, including, without
limitation, products, processes, methods, publications, works of authorship,
software programs, designs, trade secrets, technical specifications, algorithms,
technical data, know-how, internal reports and memoranda, marketing plans and
any other patent or proprietary rights conceived, devised, developed, or reduced
to practice, in whole or in part, by employee during the term of his employment
by the Company that pertain to hydrogen fuel technology and fuel cell system
technology (the “Developments”) are the sole and exclusive property of the
Company on a worldwide basis as works made for hire or otherwise, and further
that any revenue or other consideration obtained from the sale, license or
other
transfer or conveyance of any such Development, or a product or service
incorporating such Development, is solely for the benefit of and becomes the
property of the Company. To the extent a Development may not be considered
work
made by employee for hire for the Company, employee agrees to assign, and
automatically assigns at the time of creation of the Development, without any
requirement of further consideration, any and all right, title and interest
he
may have in such Development. Employee shall preserve each such Development
as
confidential and proprietary information of the Company. Employee shall promptly
disclose each such Development and shall, upon demand, at the Company’s expense,
execute and deliver to the Company such documents, instruments, deeds, acts
and
things as the Company may request to evidence or maintain the Company’s
ownership of the Development, in any and all countries of the world, or to
effect enforcement thereof, and to assign all rights, if any, of employee in
and
to each of such Developments. In addition, employee agrees not to publish or
seek to publish any information whatsoever concerning any Development without
the prior written consent of the Company, which may be withheld in its sole
and
absolute discretion.
(iv) Any
inventions relating to the business of the Company that pertain to hydrogen
fuel
technology and fuel cell system technology conceived or reduced to practice
after employee leaves the employ of the Company shall be conclusively deemed
to
have been conceived and/or reduced to practice during the period of the
employment if conceived and/or reduced to practice within six months from
termination of employment, and shall be subject to the terms of this Section
7(c).
(d)
Non-Recruitment
of Other Company Employees.
During
the term of employee’s
employment under this Agreement and for a period of one (1) year thereafter,
employee will not directly or indirectly (i) recruit, solicit, encourage or
induce any employee of the Company or any of its Affiliates to terminate such
employment, (ii) otherwise disrupt any such employee’s relationship with the
Company or its Affiliates, or (iii) whether individually or as owner, agent,
employee, consultant or otherwise, hire, employ or offer employment to any
person who is or was employed by the Company or an Affiliate thereof, whether
or
not such engagement is solicited by employee.
(e)
Non-Solicitation
of Customers or Other Persons.
(i)
During
the term of employee’s employment under this Agreement and for a period of one
(1) year thereafter, employee shall not solicit, induce, or attempt to induce
any past, current or potential customer of the Company or its Affiliates to
(A)
cease doing business in whole or in part with or through the Company or its
Affiliates or otherwise disrupt any previously established relationship existing
between such customer and the Company or its Affiliates, or (B) do business
with
any other person or entity which performs services materially similar to or
competitive with those provided by the Company or its Affiliates.
(ii) During
the term of employee’s employment under this Agreement and for a period of one
(1) year thereafter, employee shall not solicit, induce, or attempt to induce
any supplier, lessor, licensor, or other person who has a business relationship
with the Company or its Affiliates, or who on the date employee’s employment
hereunder is terminated is engaged in discussions or negotiations to enter
into
a business relationship with the Company or its Affiliates, to discontinue
or
reduce the extent of such relationship with the Company or its
Affiliates.
(f)
Non-Competition
with the Company.
Employee acknowledges and agrees that the services which have been and will
be
performed by employee for the Company or its Affiliates, whether during his
employment with the Company or any Affiliates otherwise than pursuant to this
Agreement, include services of a special, unique, unusual, extraordinary and
intellectual character. Employee further acknowledges that the business of
the
Company and its subsidiaries is worldwide in scope, that employee has been
and
will be an integral part of conceiving, developing, marketing and selling such
products and services on a worldwide basis, and that the Company and its
subsidiaries compete with other organizations that are or could be located
in
any part of the world. Employee further acknowledges that, by virtue of the
character of his services employee will be deemed to have worked for the Company
or its subsidiaries at any and every location and geographic area in which
employee’s services have been or will be applied on behalf of the Company or any
subsidiary during his employment by the Company or any subsidiary whether
pursuant to this Agreement or otherwise, irrespective of whether or not employee
was physically present at such location or geographic area. Therefore, employee
hereby covenants and agrees that during the term of employee’s employment
hereunder and for a period of one (1) year thereafter, employee will not
directly or indirectly engage or invest in, own, manage, operate, control or
participate in the ownership, management, operation or control of, be employed
by, associated or connected with, or render services or advice to, any other
business whose services, products or activities compete in whole or in part
with
the services, products or activities of the Company relating to Company’s
hydrogen fuel technology and fuel cell system technology or its subsidiaries,
within all geographic areas worldwide in which employee’s services were applied
by the Company or its subsidiaries at any time during employee’s by the Company
or its subsidiaries otherwise than pursuant to this Agreement.
(g)
Reasonableness
of Covenants.
It is
understood and agreed by the parties hereto that the covenants by employee
set
forth in this Section 7 are essential elements of this Agreement and that but
for employee’s agreement to comply with such covenants, the Company would not
have entered into this Agreement. The parties also acknowledge that the time,
scope, geographic area and other provisions of Section 7(b) through 7(f) have
been specifically negotiated at arm’s length by sophisticated commercial parties
with peculiar knowledge of the Company’s business. It is further agreed that all
such provisions are reasonable under the circumstances pertaining to the
Company’s business and employee’s key role therein, and necessary for the
protection of the Company’s legitimate business interests. The Company and
employee have independently consulted their respective legal counsel and have
been advised in all respects concerning the reasonableness and propriety of
such
covenants, with specific regard to the nature of the businesses conducted by
the
Company and its subsidiaries.
(h)
Injunctive
Relief and Other Remedies with Respect to Covenants.
Employee acknowledges and agrees that the covenants and obligations of employee
as set forth in this Section 7 relate to special, unique and extraordinary
matters and that a violation of any of the terms of such covenants and
obligations will cause the Company irreparable injury for which adequate
remedies are not available at law. Employee further agrees that if, at any
time,
despite express agreement of the parties hereto, a court of competent
jurisdiction holds that any portion of Section 7(b) through 7(f) of this
Agreement is unenforceable for any reason, the maximum permissible restrictions
of time, scope or geographic area as determined by such court, will be
substituted for any such restrictions held unenforceable. In the event
employee’s
breach (or threatened breach in the case of clause (i) below) of any of the
covenants and obligations set forth in this Section 7, employee agrees that
the
Company will (i) be entitled to an injunction, restraining order or such other
equitable relief restraining employee from violating such covenants and
obligations contained in this Section 7, without requiring the Company to post
any bond or surety therefore, and (ii) have no further obligation to make any
payments to employee hereunder. These remedies are cumulative and are in
addition to any other rights and remedies the Company may have at law or in
equity, including, but not limited to, recovery of costs and expenses such
as
reasonable attorneys’ fees by reason of any such breach, actual damages
sustained by the Company as a result of any such breach, and cancellation of
any
unpaid salary, bonus, commissions or reimbursements otherwise outstanding at
such time.
(i)
Applicability
of Certain Sections.
Notwithstanding the foregoing, the parties agree that Sections 7(d), 7(e) and
7(f) shall be binding upon employee only in the event that employee voluntarily
terminates his employment hereunder during the term of this Agreement without
the consent of the Company and in the event that employee is discharged by
the
Company for Disability or Cause.
8.
Market
Stand-Off. In connection with any public offering by the Company of its
equity securities pursuant to an effective registration statement filed under
the Securities Act of 1933, including the Company’s first public offering, the
Employee shall not directly or indirectly sell, make any short sale of, loan,
hypothecate, pledge, offer, grant or sell any option or other contract for
the
purchase of, purchase any option or other contract for the sale of, or otherwise
dispose of or transfer, or agree to engage in any of the foregoing transactions
with respect to, any equity securities of the Company without the prior written
consent of the Company or its underwriters, if any. Such restriction (the
“Market Stand-Off”) shall be in effect for such period of time following the
date of the final prospectus for the offering as may be requested by the Company
or such underwriters, if any. In no event, however, shall such period exceed
the
shortest such period required of any stockholder holding five percent (5%)
or
more of the Company’s common stock on the date hereof. The Market Stand-Off
shall in any event terminate two (2) years after the date of the Company’s first
public offering following the date hereof. In the event of the declaration
of a
stock dividend, a spin-off, a stock split, an adjustment in conversion ratio,
a
recapitalization or a similar transaction affecting the Company’s outstanding
securities without receipt of consideration, any new, substituted or additional
securities which are by reason of such transaction distributed with respect
to
any equity securities of the Company subject to the Market Stand-Off, or into
which such equity securities of the Company thereby become convertible, shall
immediately be subject to the Market Stand-Off. In order to enforce the Market
Stand-Off, the Company may impose stop-transfer instructions with respect to
the
equity securities of the Company until the end of the applicable stand-off
period. The Company’s underwriters, if any, shall be beneficiaries of the
agreement set forth in this Subsection (c).
9.
Successors; Binding Agreement.
The
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and permitted
assigns. Neither this Agreement nor any rights, interests or obligations
hereunder may be assigned by any party hereto without the prior written consent
of the other parties hereto; provided that the Company may assign any rights,
interests or obligations
hereunder to any successor (whether direct or indirect, by merger, purchase,
consolidation or otherwise) to all or substantially all of the business and/or
assets of the Company.
10.
Notice.
All
notices hereunder must be in writing and shall be deemed to have given upon
receipt
of
delivery by: (a) personal delivery to the designated individual, (b) certified
or registered mail, postage prepaid, return receipt requested, (c) a nationally
recognized overnight courier service with confirmation of receipt or (d)
facsimile transmission with confirmation of receipt. All such notices must
be
addressed as follows or such other address as to which any party hereto may
have
notified the other in writing. For the purpose 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 prepared, addressed as follows:
To
the
Company:
0
Xxxxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxx 00000
Attention:
Xxxx Xxxxxxx
To
Employee:
Xxxx
X.
Xxxx
0000
Xxxx
Xxxxxxxx Xxxx
Xxxx
Xxxxxx, Xxxx 00000
or
to
such other address as any party may have furnished to the others in writing
in
accordance herewith, except that notices of change of address shall be effective
only upon receipt.
11.
Miscellaneous.
No
provisions of this Agreement may be modified, waived or discharged unless such
waiver, modification or discharge is agreed to in writing signed by employee
and
such officer of the Company as may be specifically designated by the Chief
Executive Officer of the Company. 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.
12.
Validity.
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 effect.
13.
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 shall constitute one and
the
same instrument.
14.
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
canceled.
15.
Governing
Law.
This
Agreement , the entire relationship of the parties hereto, and any litigation
between the parties (whether grounded in contract, tort, statute, law or equity)
shall be governed by, construed in accordance with, and interpreted pursuant
to
the laws of the State of Texas, without giving effect to its choice of laws
principles. Exclusive venue for any litigation between the parties hereto shall
be in Xxxxxx County, Texas, and shall be brought in the State District Courts
of
Xxxxxx County, Texas, or in the United States District Court for the Southern
District of Texas, Houston Division. The parties hereto waive any challenge
to
personal jurisdiction or venue (including without limitation a challenge based
on inconvenience) in Xxxxxx County, Texas, and specifically consent to the
jurisdiction of the State District Courts of Xxxxxx County and the United States
District Court for the Southern District of Texas, Houston
Division.
[signatures
appear on the following page]
IN
WITNESS WHEREOF, the parties have executed this Agreement on the date and year
first above written.
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COMPANY:
TRULITE,
INC.
By:
 Name:
Xxxx Xxxxxxx
Title:
President
EMPLOYEE:
/s/
Xxxx X.
Xxxx
Xxxx
X. Xxxx
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