EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made this 16th day of
December, 2005 by Laser Energetics, Inc., an Oklahoma corporation (the
"Employer"), and Xxxx X. XxXxxxxx, M.D. (the "Executive").
The parties, intending to be legally bound, agree as follows:
1. Employment. The Company hereby employs the Executive as Medical
Director, and the Executive hereby accepts such employment, subject to the terms
and conditions hereinafter set forth.
2. Term. The term of the Executive's employment hereunder shall commence
on January 1, 2006 and shall continue to December 31, 2008, subject to earlier
termination as provided herein or unless extended by mutual consent of both
parties in writing prior to the end of the term of this Agreement or any
extension thereof.
3. Duties. The Executive agrees that the Executive will serve the Company
as the Medical Director of the Company subject to the general supervision of the
Board of Directors of the Company, agrees diligently and competently to devote
such time, skill and attention to such services as the Board of Directors deems
necessary. The Executive agrees to serve as a director of the Company and/or of
any parent, subsidiary or affiliate of the Company if the Executive is elected
to such directorship. Upon the termination of this Agreement pursuant to Section
5 below, the Executive shall resign as an officer and director of the Company
and any of its subsidiaries.
4. Compensation.
(a) In consideration of the services to be rendered by the Executive
hereunder, including, without limitation, any services rendered by the Executive
as director of the Company or of any parent, subsidiary or affiliate of the
Company, the Company agrees to pay the Executive, and the Executive agrees to
accept fixed compensation at the rate One Hundred Twenty Thousand ($120,000),
subject to all required federal, state and local payroll deductions, that shall
increase on the anniversary date of January 1, 2006 and upon every annual
anniversary thereafter, at the rate of ten percent (10%) (the "Compensation").
(b) The payment of the Executive's Compensation shall be deferred until
December 31, 2008, at which time all Compensation earned by the Executive
pursuant to this Agreement shall be paid by the Company, at the option of the
Company, in cash or in shares of Class A Common Stock at the then current fair
market value per share on December 31, 2008. The Compensation is subject to
reduction to reflect applicable withholding and payroll taxes.
(c) Except as set forth above, the Executive shall not be entitled to any
other compensation or benefits from the Company unless determined by the Board
of Directors in its sole discretion.
-1-
5. Termination. The Executive's employment with the Company is "AT WILL".
The Company shall have the right, at any time before the expiration of the Term
of this Agreement, to terminate this Agreement and to discharge the Executive
for any reason, with or without cause, immediately upon written notice to the
Executive, in which case all Compensation to the Executive shall cease to accrue
upon such termination. The Executive shall have the right, before the expiration
of the Term of this Agreement, to resign and terminate this Agreement for any
reason upon sixty (60) days prior written notice to the Company, in which case
the Company shall be completely discharged from any further obligations to the
Executive (including, without limitation, any obligation to pay to or on behalf
of the Executive any accrued or further Compensation).
6. Non-Disclosure of Confidential Information and Non- Competition.
(a) The Executive acknowledges that the Executive has been informed that
it is the policy of the Company to maintain as secret and confidential all
information (i) relating to the products, processes, designs and/or systems used
by the Company and (ii) relating to the customers and employees of the Company
(all such information hereafter referred to as "confidential information"), and
the Executive further acknowledges that such confidential information is of
great value to the Company. The parties recognize that the services to be
performed by the Executive are special and unique, and that by reason of his
employment by the Company, the Executive has and will acquire confidential
information as aforesaid. The parties confirm that it is reasonably necessary to
protect the Company's goodwill, and accordingly the Executive does agree that
the Executive will not directly or indirectly (except where authorized by the
Board of Directors of the Company for the benefit of the Company), at any time
during his employment by the Company or after the Executive ceases to be
employed by the Company, divulge to any persons, firms or corporations, other
than the Company (hereinafter referred to collectively as "third parties"), or
use or allow or cause or authorize any third parties to use, any such
confidential information.
(b) The Executive agrees that, upon the termination of his employment by
the Company for any reason, the Executive shall forthwith deliver up to the
Company any and all records, drawings, notebooks, keys and other documents and
material, and copies thereof in his possession or under his control which is the
property of the Company or which relate to any confidential information or any
discoveries of the Company.
(c) The Executive agrees that any breach or threatened breach by the
Executive of any provision of this Section 6 shall entitle the Company, in
addition to any other legal remedies available to it, to enjoin such breach or
threatened breach through any court of competent jurisdiction. The parties
understand and intend that each restriction agreed to by the Executive herein
above shall be construed as separable and divisible from every other
restriction, and that the unenforceability, in whole or in part, of any
restriction will not affect the enforceability of the remaining restrictions,
and that one or more or all of such restrictions may be enforced in whole or in
part as the circumstances warrant.
-2-
(d) For the purposes of this Section, the term "Company" shall mean and
include any and all subsidiaries, parents and affiliated corporations of the
Company in existence from time to time.
7. Successors; Binding Agreement. Neither this Agreement nor any right or
interest hereunder shall be assignable by the Executive (except by will or
intestate succession) or any successor to the Executive's interest, but this
Agreement shall inure to the benefit of and be enforceable by the Executive's
personal or legal representative, executors, administrators, successors, heirs,
distributees, devisees and legatees.
8. Miscellaneous. No provision of this Agreement may be modified, waived
or discharged unless such waiver, modification or discharge is agreed to in
writing and signed by the Executive and such officer as may be specifically
designated by the Board. No waiver by either 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 that are not set forth in
this Agreement. Any payments provided for hereunder shall be paid net of any
applicable withholding required under federal, state or local law.
9. Severance and Validity. The invalidity or unenforceability of any
provision 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.
10. Counterparts. This Agreement may be executed in several counterparts,
each of which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
11. Entire Agreement. This Agreement contains the entire understanding of
the parties with respect to the subject matter hereof, supersedes any prior
agreement between the parties, and may not be changed or terminated orally. No
change, termination or attempted waiver of any of the provisions hereof shall be
binding unless in writing and signed by the party to be bound; provided,
however, that the Executive's compensation and benefits may be increased at any
time by the Company without in any way affecting any of the other terms and
conditions of this Agreement, which in all other respects shall remain in full
force and effect.
12. Negotiated Agreement. This Agreement has been negotiated and shall not
be construed against the party responsible for drafting all or parts of this
Agreement.
13. Notices. For the purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered personally or received by United
States registered or certified mail, return receipt requested, postage prepaid,
or by nationally recognized overnight delivery service providing for a signed
return receipt, addressed to the Executive at the Executive's home address set
forth in the Company's records and to the Company at the address set forth on
the first page of this Agreement, provided that all notices to the Company shall
-3-
be directed to the attention of the Board with a copy to counsel to the Company,
at Xxxxx & Xxxxx, X.X. Xxx 0000, Xxxxxxxxx, Xxx Xxxxxx 00000-0000, Attention:
Xxxxxx Xxxxx, Esq., or to such other address as either party may have furnished
to the other in writing in accordance herewith, except that notice of change of
address shall be effective only upon receipt.
14. Governing Law and Resolution of Disputes. All matters concerning the
validity and interpretation of and performance under this Agreement shall be
governed by the laws of the State of New Jersey. Any dispute or controversy
arising under or in connection with this Agreement shall be settled exclusively
by arbitration in Trenton, New Jersey in accordance with the rules of the
American Arbitration Association ("AAA") then in effect. Any judgment rendered
by the arbitrator as above provided shall be final and binding on the parties
hereto for all purposes and may be entered in any court having jurisdiction.
-4-
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the date above first written above.
Employer: LASER ENERGETICS, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------
XXXXXX X. XXXXXX,
President & CEO
Executive:
/s/ Xxxx X. Xxxxxxxx
--------------------------------
XXXX X. XxXXXXXX, M.D.
-5-
