EMPLOYMENT AGREEMENT
Exhibit
99.1
This
Employment Agreement dated as of September 28, 2006 (this “Agreement”) is
entered into by and between Energy King, Inc., a California corporation (the
“Employer”), and Xxxxx Xxxxxx (the “Employee”).
1. Employment.
The
Employer hereby employs the Employee and the Employee hereby accepts employment
with the Employer upon the terms and subject to the conditions set forth
herein.
2. Duties
and Responsibilities.
The
Employee shall initially be employed as a Vice President of Marketing of the
Employer and shall perform the services and functions relating to such position
or otherwise reasonably incident to such position. The Employee shall be subject
to the direction of the President of the Employer and such other officer or
officers of the Employer as the Board of Directors or the President of the
Employer may determine. Notwithstanding the foregoing, the Employee shall not
be
assigned or have any control or authority over the hazardous materials
management or hazardous waste collection or disposal activities of the Company.
The Employee will devote his best efforts and his full time and attention to
the
performance of his duties, except for paid time off as permitted by Employer's
general policies. The employment relationship between the parties shall be
governed by the general employment policies, practices and rules of the
Employer, including without limitation the Employer's employee handbook, except
that when the terms of this Agreement differ from or are in conflict with the
Employer's general employment policies, practices or rules, this Agreement
shall
control.
3. Compensation.
As
compensation for his services under the terms of this Agreement:
(a) The
Employee shall be paid an annual salary of $165,000, payable in accordance
with
the then-current payroll policies of the Employer (such annual salary is herein
referred to as the "Base Salary").
(b) The
Employee may also be selected to participate in certain additional incentive
programs pursuant to which the Employee may receive additional compensation
(the
"Additional Compensation"), payable in accordance with the then-current payroll
policies of the Employer with respect to the types of such
compensation.
The
Employee also shall be entitled to vacation or paid time off and holiday pay
in
accordance with the policies applicable to the Employer’s exempt salaried
employees generally, except that the Employee shall be entitled to 15 days
of
vacation or paid time off each year.
4. Term.
Subject
to earlier termination as provided in this Agreement, the term of the Employee's
employment under this Agreement shall be for a term commencing on the date
of
this Agreement and ending on August 31, 2008, subject to extension thereafter
by
mutual written agreement of the Employer and the Employee. The period commencing
on the date of this Agreement and expiring on the scheduled expiration date
of
this Agreement (including any extension of such date) is referred to herein
as
the "Term."
5. Non-Competition,
Non-Solicitation and Confidentiality.
(a) During
the period the Employee is employed by the Employer or any other Buckeye Company
(as defined below) and for a period of three (3) years after
the Employee ceases to be employed by the Employer or any other Buckeye Company
for any reason, whether before or after the expiration of the
Term,
except
that in the case of a termination of employment pursuant to Section
6(e)
of this
Agreement prior to the date on which the Term is then scheduled to expire,
such
period shall be extended to the date that is three (3) years following the
scheduled expiration of the Term (provided,
however, that notwithstanding the foregoing, the provisions in subsections
(i)
and (ii) of this Section 5(a) shall apply as to any California resident or
as to
any Territory in California only during the period the Employee is employed
by
the Employer or any other Buckeye Company (or, in the case of a termination
of
employment pursuant to Section
6(e)
of this Agreement prior to the date on which the Term is then scheduled to
expire, through the scheduled expiration of the Term) so long as California
law
and/or public policy do not permit the restrictions in such subsections to
be
enforced during the longer time period set forth above),
the
Employee shall not:
(i) Directly
or indirectly accept employment with, or render any service to or on behalf
of,
any person, firm or corporation that is engaged in the heating, air
conditioning, cooling, ventilation or plumbing businesses or any other business
that competes with the Employer or any Related Buckeye Company (as defined
below) (a "Competitive Business") anywhere within the Territory (as defined
below);
(ii) Directly
or indirectly own, manage, operate, finance or control or participate in the
ownership, management, operation, financing or control of, or be connected
as a
principal, agent, representative, consultant, advisor, investor, owner, partner,
financier, manager or joint venturer with, or permit his name to be used by
or
in connection with, any Competitive Business anywhere in the Territory;
provided,
however,
that the
Employee may (A) invest as an investor in the voting securities of any person
that is a reporting company under the Securities Exchange Act of 1934, as
amended, so long as (1) the aggregate amount of such securities that the
Employee owns directly or indirectly is less than two percent (2%) of the total
outstanding voting securities of such person, and (2) the Employee has no other
affiliation with such person, and (B) own shares of stock of Buckeye Ventures,
Inc., a Michigan corporation ("Buckeye");
(iii) Contact,
deal with or in any way solicit any person or entity that at any time during
the
period of three (3) years before the date of the Employee's termination was
a
customer of any Related Buckeye Company with which the Employee had actual
contact or actual knowledge while in the employ of the Employer or any Related
Buckeye Company or which was a customer of the Employer in an effort to (A)
cause or induce, or act in a manner that has the effect of causing or inducing,
such person or entity to purchase or otherwise obtain the benefit or use of
any
products or services within the area in which any such Buckeye Company does
business or within the Territory that are provided by any Related Buckeye
Company or the Employer from a person or entity that is other than a Buckeye
Company, or (B) disrupt, damage, impair or interfere with, or act in any manner
that has the effect of disrupting, damaging, impairing or interfering with,
any
existing or potential (1) agreement, (2) arrangement, (3) course of dealing,
or
(4) negotiations between any Related Buckeye Company and any such person or
entity; or
(iv) Solicit
the employment of any person who, at any time within one (1) year before or
after the date of the Employee's termination, is employed by the Employer or
any
Related Buckeye Company, or contact any such person in an effort to or in any
manner that suggests that such person should terminate or consider terminating
such person’s employment or other relationship with the Employer or with any
Related Buckeye Company.
The
parties acknowledge that nothing in this Section 5 is intended or shall be
deemed to prohibit the Employee after the Employee ceases to be employed or,
if
later, after the period for which the Employee is paid by the Employer pursuant
to Section 6(e)) from providing consulting services to Competitive Businesses
which are located and conduct their businesses outside of the Territory;
provided such consulting services do not involve solicitations of or contact
with customers of any Related Buckeye Company with which the Employee had actual
contact or knowledge or solicitations of or contacts with customers of the
Employer in violation of the provisions in clause (iii) above or solicitations
of or contacts with employees or former employees in violation of clause (iv)
above.
The
term
"Competitive Business" shall include in any event any business that the Employee
knows is conducted in any material respect in the Territory by the Employer
or
any Related Buckeye Company. The Employee acknowledges that the Employer will
have a business location at the date hereof in Sacramento, California and that
the Employer currently provides, or has or will have the ability to provide
goods and services to customers within a fifty (50) mile radius of its current
location. The term "Buckeye Company" shall mean the Employer and its direct
and
indirect affiliates, including without limitation Buckeye and each parent,
subsidiary, partnership, limited liability company, joint venturer or other
related entity or any other entity directly or indirectly controlled by Buckeye;
the term "Related Buckeye Company" shall mean any Buckeye Company where the
Employee at any time during his employment by the Employer or any such Buckeye
Company has performed significant services or was assigned or had any
supervisory, managerial or other operational responsibility; and the term
“Territory” shall mean the area that consists of Sacramento, California, a fifty
(50) mile radius of Sacramento, California or any other city in which the
Employer or any Related Buckeye Company has a business location and fifty (50)
mile radius any such business location.
(b) It
is the
desire and intent of each of the parties that the provisions of Section
5(a)
of this
Agreement shall be enforced to the fullest extent permissible under applicable
law. Accordingly, if any particular portion of Section
5(a)
shall be
adjudicated to be invalid or unenforceable, Section
5(a)
shall be
deemed amended to (i) reform the particular portion to provide for such maximum
restrictions as will be valid and enforceable, or if that is not possible,
then
(ii) delete therefrom the portion thus adjudicated to be invalid or
unenforceable.
(c) During
the period during which the Employee is employed by the Employer or by any
other
Buckeye Company and
at all times thereafter
(regardless of the reason for termination of employment), the Employee will
not
divulge or appropriate to his own use or to the use of others any secret,
confidential or proprietary information (the "Confidential Information")
pertaining to the business of, or acquired from other persons or entities by,
the Employer, Buckeye or any other Buckeye Company. Such Confidential
Information includes, without limitation, trade secrets; customer lists;
customer prospect lists; acquisition target lists; names, addresses, contact
persons and other identifying information of customers, prospective customers
and acquisition targets; the needs and preferences of customers and prospective
customers; knowledge that customers or prospective customers possess or may
possess a willingness to use the types of products or services offered by
Employer, Buckeye or any other Buckeye Company; business methods, plans and
strategies; marketing methods, plans and strategies; financial data; pricing
information; other terms (including expiration dates) of customer contracts;
and
cost information, obtained by the Employee as a consequence of his employment,
affiliation, agreements or position with the Employer, Buckeye or any other
Buckeye Company. For purposes of this Agreement, Confidential Information does
not include any information that is or becomes generally available to and known
by the public (other than as a result of an unpermitted disclosure directly
or
indirectly by the Employee). The Employee will not remove any item of
Confidential Information from the premises of any Buckeye Company except as
the
Employee's duties as an employee shall require or as otherwise authorized by
the
Employer, and upon any termination of the Employee's employment, the Employee
shall immediately return all items (including without limitation all copies
thereof) of Confidential Information, whether in printed, computer or other
form, as well as all analyses, compilations, studies, reports, manuals,
memoranda, notes, correspondence, charts, diagrams, designs, computer programs,
sales formats, supplier lists and other documents (including without limitation
all copies thereof), whether in printed, computer or other form, prepared by
or
for the Employee or in the Employee's possession or control that contain or
are
based in whole or in part upon such information, to Employer, or as otherwise
directed by the Employer.
(d) The
Employee acknowledges that Section
5(a)
and
Section
5(c)
of this
Agreement are expressly for the benefit of the Employer, that the Employer
would
be irreparably injured by a violation of Section
5(a)
or
Section
5(c),
and
that the Employer would have no adequate remedy at law in the event of such
violation. Therefore, the Employee acknowledges and agrees that, in addition
to
any other remedies available, injunctive relief, specific performance or
any
other appropriate equitable remedy (without any bond or other security being
required) are appropriate remedies to enforce compliance with Section
5(a)
and
Section
5(c).
(e) The
Employee further acknowledges that the covenants contained in Section
5(a)
and
Section
5(c)
of this
Agreement are of the essence of this Agreement, and agrees that the existence
of
any breach by the Employer of any provision of this Agreement, or the existence
of any claim or cause of action of the Employee against the Employer, whether
predicated on this Agreement or otherwise, shall not constitute a defense to
the
enforcement by the Employer of the provisions of Section
5(a)
or
Section
5(c).
Instead, in the event of any breach by Employer of any provision of this
Agreement, the Employee's remedy shall be to bring an independent action for
breach of contract against the Employer (except in the case of a dispute that
is
the subject of Section
7,
in
which case the Employee's remedy is to invoke the dispute resolution mechanism
set forth therein).
(f) THE
PROVISIONS OF THIS SECTION
5
SHALL CONTINUE IN EFFECT PURSUANT TO THEIR TERMS, NOTWITHSTANDING THE EXPIRATION
OF THE TERM OR ANY OTHER TERMINATION OF THIS AGREEMENT.
No
restriction contained in any part of this Section
5
is
intended or shall be deemed to limit any other provision contained in this
Section
5
or any
other rights or remedies of the Employer or any other Buckeye Company, whether
under this Agreement, any other agreement, or by law or otherwise.
6. Termination
of Employment.
(a) For
Due Cause.
Nothing
herein shall prevent the Employer from terminating, without prior notice, the
Employee for "Due Cause" (as hereinafter defined), in which event the Employee
shall be entitled to receive his Base Salary on a pro rata basis to the date
of
termination and any Additional Compensation that has been awarded to or earned
by the Employee but not yet paid. In the event of such termination for Due
Cause, all other rights and benefits the Employee may have under any benefit
plans or programs of the Employer shall be determined in accordance with the
terms and conditions of such plans or programs as if the Employee had
voluntarily terminated his employment (e.g.,
he shall
be entitled to any vested amounts under the 401(k) plan and to be paid for
any
accrued and unpaid vacation through the date of termination). The term "Due
Cause" shall mean (i) the Employee has (A) committed a willful serious act,
such
as fraud, embezzlement or theft, (B) committed any act against the Employer
or
any other Buckeye Company intending to enrich himself at the expense of the
Employer or any Buckeye Company, or (C) made any unauthorized use or disclosure
of any trade secret or other confidential information (including any
Confidential Information), whether pertaining to the business of the Employer
or
any Buckeye Company or otherwise, (ii) the Employee has been convicted of a
felony or commits an act constituting a felony, (iii) the Employee has engaged
in conduct which has caused or could cause material, significant or serious
injury, whether monetary or otherwise, to the Employer or any other Buckeye
Company, (iv) the Employee, in carrying out his duties hereunder, has been
guilty of negligence or willful misconduct, (v) in the good faith determination
of the Employer, the Employee’s performance, or the performance of the business
operations for which the Employee is responsible, has failed to meet the goals
and expectations established by the Employer, provided that such goals and
expectations have been communicated to the Employee and the Employee has been
provided with a specified period of time, as determined in good faith by the
Employer, to achieve or accomplish such goals and expectations and, if the
Employee fails to achieve or accomplish such goals and expectations but is
diligently attempting to cure such failure, such failure has not been cured
within a reasonable period of time not to exceed thirty (30) days after receipt
of written notice from the Employer specifying in reasonable detail the nature
of the failure, (vi) in the good faith determination of the Employer, the
Employee has violated in any material way any of the Employer's rules, policies
or procedures (including without limitation those set forth in the Employer's
employee handbook or applied to Buckeye Companies generally), or (vii) in the
good faith determination of the Employer, the Employee has otherwise materially
breached this Agreement (including, without limitation, any failure to perform
the duties assigned to him in accordance with this Agreement) and has not
remedied such breach within five business days (or such longer period of time
not to exceed thirty (30) days if the cure is commenced within five (5) business
days, is diligently pursued in good faith and reasonably requires more than
five
(5) business days to remedy) after receipt of written notice from the Employer
specifying in reasonable detail the nature of the breach.
(b) Due
to
Death.
In the
event of the death of the Employee, this Agreement shall terminate on the date
of death and the estate of the Employee shall be entitled to receive the
Employee's Base Salary (on a pro rata basis) through the end of the month in
which he died and any Additional Compensation that has been awarded to or earned
by the Employee but not yet paid. In the event of such termination due to death,
all other rights and benefits the Employee (or his estate) may have under any
benefit plans or programs of the Employer shall be determined in accordance
with
the terms and conditions of such plans or programs as if the Employee had
voluntarily terminated his employment (e.g.,
his
estate shall be entitled to any vested amounts under the 401(k) plan and to
be
paid for any accrued and unpaid vacation through the date of
death).
(c) Disability.
In the
event the Employee suffers a "Disability" (as hereinafter defined), this
Agreement shall terminate on the date on which the Disability occurs and the
Employee shall be entitled to receive his Base Salary (on a pro rata basis)
through the end of the month in which his employment is terminated due to the
Disability and any Additional Compensation that has been awarded to or earned
by
the Employee but not yet paid. In the event of such termination due to
Disability, all other rights and benefits the Employee may have under any
benefit plans or programs of the Employer shall be determined in accordance
with
the terms and conditions of such plans or programs as if the Employee had
voluntarily terminated his employment (e.g.,
he shall
be entitled to any vested amounts under the 401(k) plan and to be paid for
any
accrued and unpaid vacation through the date of termination). For purposes
of
this Agreement, "Disability" shall mean the inability or incapacity (by reason
of a medically determinable physical or mental impairment) of the Employee
to
perform the duties and responsibilities related to the job or position with
the
Employer described in Section
2
of this
Agreement for a period that lasts, or that can be reasonably expected to last,
more than 180 days. Such inability or incapacity shall be documented to the
reasonable satisfaction of the Employer by appropriate correspondence from
an
independent, qualified registered physician or physicians mutually selected
by
the Employer and the Employee within twenty (20) days of any request for the
selection of a physician or physicians or, if the parties are unable or fail
to
agree upon a physician or physicians within such twenty (20) day period,
selected by the Employer and reasonably acceptable to the Employee, and the
Employee agrees to submit to an examination by such physician or physicians
for
the purpose of making such determination.
(d) Voluntary
Termination.
The
Employee may voluntarily terminate his employment under this Agreement at any
time by providing at least ninety days' prior written notice (or such shorter
period as the Employer may elect) to the Employer. In such event, the Employee
shall be entitled to receive his Base Salary until the date his employment
terminates and any Additional Compensation that has been awarded to or earned
by
the Employee but not yet paid and all other rights and benefits the Employee
may
have under any benefit plans or programs of the Employer shall be determined
in
accordance with the terms and conditions of such plans or programs applicable
in
the case of employees who voluntarily terminate their employment (e.g.,
he shall
be entitled to any vested amounts under the 401(k) plan and to be paid for
any
accrued and unpaid vacation through the date of termination).
(e) Constructive
Termination Prior to Expiration of Term.
(i) If,
prior
to the expiration of the Term, the Employer:
(A) terminates
the employment of the Employee for any reason other than (1) for Due Cause,
(2)
as a result of the death of the Employee or (3) because of a
Disability;
(B) decreases
the Employee's Base Salary below the level provided for by the terms of
Section
3(a)
of this
Agreement; or
(C) materially
breaches any provision of this Agreement and such breach is not cured by the
Employer within fifteen days (or such longer period not to exceed thirty (30)
days if the cure is being diligently pursued in good faith and reasonably
requires longer than fifteen days to cure) after receipt of written notice
from
the Employee specifying in reasonable detail the nature of such
breach,
then
such
action by the Employer, unless consented to in writing by the Employee, shall
be
deemed to be a constructive termination by the Employer of the Employee's
employment ("Constructive Termination"); provided,
however,
that
except in the case of a termination by the Employer pursuant to clause (A)
above, no Constructive Termination shall be deemed to have occurred unless
the
Employee notifies the Employer of the Employee's election to treat such event
as
a Constructive Termination within thirty (30) days of the occurrence of such
event.
(ii) In
the
event of a Constructive Termination:
(A) the
Employee may terminate his employment without being in breach hereof, and the
Employee shall be entitled to receive any Additional Compensation that has
been
awarded to or earned by the Employee but not yet paid and his Base Salary
through the balance of the Term, payable in a lump sum (but discounted by a
reasonable factor as mutually determined by the Employer and the Employee)
or in
accordance with the then-current payroll policies of the Employer, at the option
of the Employer; and
(B) all
other
rights and benefits the Employee may have under any benefit plans or programs
of
the Employer shall be determined in accordance with the terms and conditions
of
such plans or programs as if the Employee had voluntarily terminated his
employment (e.g.,
he shall
be entitled to any vested amounts under the 401(k) plan and to be paid for
any
accrued and unpaid vacation through the date of termination).
(iii) In
the
event of the death or Disability of the Employee following a Constructive
Termination, the amounts set forth in Section
6(e)(ii)
of this
Agreement shall continue to be owing and shall be paid to the estate of the
Employee or to the Employee, as applicable.
7. Arbitration
of Certain Disputes.
In the
event that the Employer advises the Employee that he is being terminated for
Due
Cause pursuant to Section
6(a)
and the
Employee disputes such determination and instead claims that he is being
terminated pursuant to Section
6(e),
the
Employee must notify the Employer of his disagreement regarding the grounds
for
termination within thirty (30) days following the date of termination. The
Employee agrees that if he fails to deliver such notice within such thirty
(30)
day period, he will lose the right to dispute whether the termination was
pursuant to Section
6(e),
and he
shall be limited to the rights and remedies provided for in Section
6(a).
In the
event that the Employee notifies the Employer of his disagreement within such
thirty (30) day period, the dispute shall be resolved in accordance with the
following provisions:
(a) The
Employee shall, within ten (10) days of notifying the Employer of his
disagreement, file a demand for arbitration with the American Arbitration
Association.
(b) The
dispute shall be resolved by a confidential, binding arbitration pursuant to
the
National Rules for the Resolution of Employment Disputes of the American
Arbitration Association, as modified by the agreement of the parties as set
forth below.
(c) The
dispute shall be resolved by a single neutral arbitrator, who shall be selected
by agreement of the parties, or selected in accordance with American Arbitration
Association procedures if the parties cannot agree.
(d) The
Employer and the Employee agree to engage in expedited discovery (including
both
document production and depositions) so that each party can obtain disclosure
of
relevant, non-privileged materials in a manner that will permit the close of
discovery, and then the hearing on the merits, to occur within sixty (60) days
after the filing of the arbitration demand, unless the parties mutually agree
to
extend such period.
(e) The
sole
issue to be resolved by the arbitrator shall be whether the termination was
for
Due Cause. If the arbitrator rules that the termination was not for Due Cause,
the relief to be ordered by the arbitrator shall be limited to ordering the
Employer to comply with the provisions of Section
6(e)(ii).
(f) Each
party shall bear its own expenses (including without limitation the fees and
expenses of legal counsel and accountants) in connection with such arbitration
and the Employer and the Employee shall each bear one-half of the arbitrator's
fees and expenses.
The
Employee agrees that, pending the resolution of any dispute described in this
Section
7,
he
shall continue to be bound by the provisions of Section
5
(including Section
5(a)),
as if
the termination was pursuant to Section
6(a).
The
Employee further agrees that, following the resolution of any dispute described
in this Section
7,
he
shall continue to be bound by the provisions of Section
5,
with
the duration of the period provided for in Section
5(a)
determined by the outcome of the arbitration.
8. Withholding.
All
payments and benefits under this Agreement for which withholding is required
under applicable law will be made subject to the required
withholding.
9. Notices.
All
notices, requests, demands and other communications given under or by reason
of
this Agreement shall be in writing and shall be deemed given when delivered
in
person or when mailed, by certified mail (return receipt requested), postage
prepaid, addressed as follows (or to such other address as a party may specify
by notice pursuant to this provision):
(a) If
to the
Employer, addressed to it at:
Energy
King, Inc.
0000
Xxxxxxxx Xxx.
Xxxxxxxxxx,
XX 00000
Attn: President
with
a
copy to Buckeye, addressed to it at:
0000
Xxxxxx Xxxxxx
Xxxxx
0
Xxx
Xxxxx, XX 00000
Attn: President
(b) If
to the
Employee, addressed to him at:
Xxxxx
Xxxxxx
000
Xxxxxxxxx Xx.
Xxxxxxxxx,
XX 00000
10. Controlling
Law.
The
execution, validity, interpretation and performance of this Agreement shall
be
governed by and construed in accordance with the internal laws (and not the
conflicts of law provisions) of the State of California.
11. Additional
Instruments.
The
Employee and the Employer shall execute and deliver any and all additional
instruments and agreements that may be necessary or proper to carry out the
purposes of this Agreement. Without limiting the generality of the foregoing,
in
the event that the Employer so requests, the Employee agrees to sign acknowledge
and confirm from time to time his obligations under Section
5.
12. Entire
Agreement; Amendments; Waivers; Termination.
This
Agreement contains the entire agreement of the Employee and the Employer
relating to the matters contained herein and supersedes all prior agreements
and
understandings, oral or written, between the Employee and the Employer with
respect to the subject matter hereof, excluding any existing records of the
Employer (or any predecessor of the Employer) relating to the Employee's
employment, which records may continue to be considered by the Employer in
making any determinations permitted or provided for hereunder. This Agreement
is
being executed in connection with, and nothing herein is intended to alter,
impair or supersede the terms and provisions or rights of the parties under,
the
Agreement and Plan of Merger dated as of even date herewith among Buckeye,
the
Employer, EK Acquisition Corp., a Delaware corporation, the Employee and certain
other persons (the “Merger Agreement”) or any of the other documents executed in
connection therewith, including without limitation the Pledge Agreement or
the
Promissory Notes (as such terms are defined in the Merger Agreement). This
Agreement may be amended, modified or supplemented, but only in writing signed
by each of the parties hereto. Any term of this Agreement may be waived only
with the written consent of the party sought to be bound, and the waiver by
either party to this Agreement of a breach of any provision of the Agreement
by
the other party shall not operate or be construed as a waiver by such party
of
any subsequent breach by such other party. Pursuant to certain arrangements
entered into in connection with this Agreement, the Employee and certain other
individuals have obtained a security interest in the shares of the Employer.
In
the event as a result of the exercise of the Employee’s and other individuals
rights with respect to such security interest, the Employee or such other
persons become the owners of all of the shares of stock of the Employer, the
provisions in Section 5 shall automatically terminate as they relate to the
Employer, but not as they relate to the customers, employees or Confidential
Information of any other any other Buckeye Company.
13. Reformation
and Severability.
In case
any provision of this Agreement shall be invalid, illegal or unenforceable,
it
shall, to the extent possible, be modified in such manner as to be valid, legal
and enforceable but so as to most nearly retain the intent of the parties,
and
if such modification is not possible, such provision shall be severed from
this
Agreement, and in either case the validity, legality and enforceability of
the
remaining provisions of this Agreement shall not in any way be affected or
impaired thereby.
14. Assignments.
The
Employer may assign this Agreement to any affiliate of Buckeye or the Employer
or any person or entity succeeding to all or substantially all of the business
interests of Buckeye or the Employer by merger or otherwise. The rights and
obligations of the Employee under this Agreement are personal to him, and no
such rights, benefits or obligations shall be subject to voluntary or
involuntary alienation, assignment or transfer, except as otherwise expressly
contemplated in Section
6(b)
and
Section
6(e)(iii)
of this
Agreement.
15. Effect
of Agreement.
Subject
to the provisions of Section
14
of this
Agreement with respect to assignments, this Agreement shall be binding upon
the
Employee and his heirs, executors, administrators, legal representatives and
assigns and upon the Employer and its respective successors and assigns, except
as otherwise contemplated hereby.
16. Exercise
of Rights and Remedies.
The
rights and remedies in this Agreement shall not be exclusive, but are intended
to be cumulative with all other rights and remedies of the Employer and
each
other Buckeye Company, whether under this Agreement, any other agreement,
law or
otherwise. No delay of or omission in the exercise of any right, power
or remedy
accruing to any party as a result of any breach or default by any other
party
under this Agreement shall impair any such right, power or remedy, nor
shall it
be construed as a waiver of or acquiescence in any such breach or default,
or of
any similar breach or default occurring later.
17. Execution.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original and all of which together shall constitute but one and the
same instrument.
IN
WITNESS WHEREOF,
the
Employee and the Employer have executed this Agreement effective as of the
date
first above written.
| Employer: | Employee: |
|
ENERGY KING, INC.
|
|
| By: /s/ Xxxxx Xxxxxxxxx | /s/ Xxxxx Xxxxxx |
|
Xxxxx
Xxxxxxxxx
Treasurer
|
Xxxxx Xxxxxx |
