MANAGEMENT SERVICES AGREEMENT
This
Management Services Agreement (this “Agreement”)
dated
as of September 30, 2007, by and between Energtek Inc., a company duly
registered in the State of Nevada, USA with its address at 00 Xxxx Xxxxxxxxx
Xxxxxx, Xxxxxx Xxxxxx, XX 00000, XXX (the "Company")
and
EuroSpark S.A., a Belgian corporation with address at Xxxxxx Xxxxxx 000,
Xxxxxxxx 0000 Xxxxxxx (the “Provider”;
the
Company and the Provider collectively the “Parties”).
WHEREAS Xx.
Xxx
Xxxxxxxxxx (the “Manager”)
has
been elected President of the Company;
WHEREAS The
Manager had been during several years administrateur delegue of the Provider
and
provides to the Provider services on a continuous basis; and
WHEREAS The
Provider is willing to provide the services of the Manager in accordance
with
the terms set forth herein and the Company desires to receive these services
on
an ongoing basis; and
WHEREAS The
Parties wish to set the terms and obligations of the Parties in this
Agreement
NOW,
THEREFORE, in consideration of the promises and respective covenants and
agreements of the Parties herein contained, and intending to be legally bound,
the Parties hereto agree as follows:
| 1. |
Engagement.
The
Company hereby engages Provider, and Provider hereby accept such
engagement, according to the terms and conditions set forth in
this
Agreement.
|
| 2. |
Position
and Duties.
|
| 2.1. |
The
Provider shall provide the Management Services (as defined in this
clause)
to the Company only through the Manager in
person.
|
| 2.2. |
During
the Term (as defined in Section 3
herein), the Manager will keep his position as President of the
Company
and his other positions in the Companies' subsidiaries,
|
| 2.3. |
The
Provider shall cause the Manager to devote such time as required
to
fulfill his undertakings and provide the Management Services in
accordance
with this Agreement, provided, however, that the Manager shall
not be
required to devote more than two-thirds (2/3) of his business time
to the
performance of the Management Services.
|
| 2.4. |
The
Provider and the Manager agree that the Manager shall perform operational
and financial management of the Company and such other reasonable
duties,
consistent with his position, as may be assigned to him from time
to time
by the Board of Directors (the “Board”)
of the Company (the “Management
Services”).
The Manager shall be subordinate to and report to the Board
and
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1
shall
be
given such authority as is appropriate to carry out the Management Services
described herein.
| 2.5. |
Manager
shall be entitled to thirty (30) days of vacation during each Term
or
Extended Period (as such terms are defined
below).
|
|
3.
|
Term
of Agreement. Subject
to the provisions of Section 8 of this Agreement, the period of
engagement
commences on September 1, 2007 (the “Effective Date”) and ends the first
anniversary thereof (the “Term”) on the terms and subject to the
conditions set forth in this Agreement; provided, however, that
commencing
with such first anniversary and on each subsequent anniversary
(each an
“Extension Date”), the Term shall be automatically extended for an
additional one-year period (the “Extended Period”), unless the Company or
Provider provides written notice to the other party, at least 90
days
prior to Term or the next Extension Date (the “Notice Period”), that the
Term shall not be so extended. All the terms and conditions of
this
Agreement shall apply to any Extended Period, unless agreed otherwise
by
the Parties.
|
| 4. |
Consideration
and Scale of Services. In
consideration for the Management Services to be provided in accordance
with this Agreement, the Company shall pay the Provider, the consideration
as detailed herein ("the
Consideration"):
|
| 4.1. |
A
monthly payment of Six Thousand Six Hundred and 00/100 Euros
(€ 6,600.00) paid to the Provider on or before the last day of each
month, provided, however, that the Company shall withhold any amounts,
which it is obligated to withhold under any tax or other applicable
law.
|
| 4.2. |
The
Provider and/or the Manager shall be entitled to equity based stock
options or equity allocations and/or additional bonuses according
to the
Company's plans and decisions to be adopted from time to time,
commensurate with the Manager’s position and the work
performed.
|
| 4.3. |
The
Company will promptly reimburse the Manager and/or the Provider
for any
and all reasonable direct expenses incurred by the Manager and/or
the
Provider on behalf of the Company and/or in connection with the
performance of the Management Services, subject to the policy of
reporting
and approval to be agreed upon by the Parties.
|
| 5. |
Relationship
between the Parties (Independent Contractor; No Employer-Employee
Relationship). It
is agreed upon and declared that the Manager and the Provider are
providing the Management Services as independent contractors, and
there
shall not be any employee-employer relationship between the Company
on one
hand and the Manager and/or the Provider on the other
hand.
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2
| 6. |
Termination
of Agreement. The
Provider and Manager’s employment hereunder may be terminated as
follows:
|
| 6.1. |
This
Agreement shall terminate in accordance with the provisions of
Section
3;
|
| 6.2. |
At
any time, each Party can terminate this Agreement without cause
upon 180
days prior written notice to the other
Party;
|
| 6.3. |
At
any time this Agreement may be terminated by the Company for cause
as
defined in clause 6.5 below.
|
| 6.4. |
At
any time this Agreement may be terminated by the Provider for cause
as
defined in clause 6.5 below.
|
| 6.5. |
|
| 6.5.1. |
The
term "cause" in the event of termination of the Manager's engagement
by
the Company means (i) any breach of Sections 10 of this Agreement
by the
Manager which has a material adverse effect on the Company
and which is
not or cannot be cured within thirty (30) days after notice
from the Board
of Managers of the Company thereof; (ii) commission of any
act of fraud,
embezzlement or dishonesty by the Manager that is materially
and
demonstrably injurious to the Company; (iii) any other intentional
misconduct by the Manager adversely affecting the business
or affairs of
the Company in a material manner. The term "intentional misconduct
by the
Manager adversely affecting the business or affairs of the
Company" shall
mean such misconduct that is detrimental to the business or
the reputation
of the Company as it is perceived both by the general public
and the
natural gas industry.
|
| 6.5.2. |
The
term "cause" in the event of termination of the Manager's engagement
by
the Provider means (i) the change in job responsibilities of the
Manager
resulting in a reduction or constraint of the position, responsibilities
or compensation of the Manager , which demotion is caused by something
other than would be cause for termination of the Manager's engagement
by
the Company for cause (ii) any breach of Sections 2 or 4 of this
Agreement
by the Company and which is not or cannot be cured within thirty
(30) days
after notice from the Provider;
|
| 6.6. |
In
the event Manager is unable to perform the Management Services
for a
period of greater than 15 working
days;
|
| 6.7. |
Notwithstanding
anything herein to the contrary, each Party shall be entitled to
terminate
this Agreement by 30 day written notice to cure, in any of the
following
events:
|
| 6.7.1. |
A
material breach of this Agreement that has not been cured within
the said
30 day period.
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3
| 6.7.2. |
Upon
the filing of a petition for bankruptcy, insolvency or a similar
action
not discharged within 60 days.
|
| 7. |
Cooperation
after Termination. Following
termination of the Agreement, upon request of the Company, the
Provider
and Manager shall reasonably cooperate with the Company in all
matters
relating to the winding up of pending work on behalf of the Company
and
the orderly transfer of work to other employees of the Company.
The
Manager and Provider shall also reasonably cooperate in the defense
of any
action brought by any third party against the Company that relates
in any
way to the Provider and/or Manager’s acts or omissions while employed by
the Company.
|
|
8.
|
Company
Policies.
|
| 8.1. |
Provider
and Manager understand that the provisions of any employee handbooks,
personnel manuals and any and all other written statements of or
regarding
personnel policies, practices or procedures that are or may be
issued by
the Company or any official or department thereof from time to
time (the
“Company Policies”) do not and shall not constitute a contract of
employment and do not and shall not create any vested rights; that
any
such provisions may be changed, revised, modified, suspended, canceled,
or
eliminated by the Company at any time, in its sole discretion,
with or
without notice; and that such provisions constitute guidelines
only and
may be disregarded either in individual or company-wide situations
when,
in the sole opinion and judgment of the Company, circumstances
so
require.
|
| 8.2. |
Provider
and Manager shall comply with all applicable Company Policies,
which may
be in effect from time to time during the term of this Agreement.
Notwithstanding the foregoing, in the event of a conflict between
any such
Company Policies and the terms of this Agreement, the terms of
this
Agreement shall govern. If a provision in any policy conflicts
with this
Agreement, the terms of this Agreement shall prevail.
|
|
9.
|
Creations
and Ideas.
|
| 9.1. |
The
Provider and Manager will maintain current and adequate written
records on
the development of, and disclose to the Company all Creations (as
herein
defined). The Provider and Manager have attached hereto, as Exhibit
A, a
list describing all Creations which were made by the Provider and
Manager
prior to his engagement with the Company (collectively referred
to as
“Prior Inventions”), which belong to the Provider and/or Manager, which
relate to the Company’s proposed business, products or research and
development, and which are not assigned to the Company hereunder
or were
not assigned to the Company before; or, if no such list is attached,
the
Provider and Manager represent that there are no such Prior Inventions.
The above mentioned Exhibit A addresses the Company's activities
in the
field of Natural Gas Transportation, Natural Gas vehicles and Natural
Gas
Storage. Should the Company enter new fields of activities, business,
products and/or research and development the Company will ask the
Manager
and the Provider to supply an additional list of Prior Inventions
in the
relevant new area.. If in the course of the Manager’s employment with the
Company, the Manager incorporates into a Company product, process
or
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4
machine
a
Prior Invention owned by the Provider and/or Manager or in which the Provider
and/or Manager have an interest, the Company is hereby granted and shall
have a
nonexclusive, royalty-free, irrevocable, perpetual, worldwide license to
make,
have made, modify, use and sell such Prior Invention as part of or in connection
with such product, process or machine. For purposes of this Agreement,
“Creations” shall mean all ideas, potential marketing and sales relationships,
inventions, experiments, copyrightable expression, research, plans for products
or services, marketing plans, reports, strategies, processes, computer software
(including, without limitation, source code), computer programs, original
works
of authorship, characters, know-how, trade secrets, information, data,
developments, discoveries, improvements, modifications, technology, algorithms,
database schema, designs, and drawings, whether or not subject to patent
or
copyright protection, made, conceived, expressed, developed, or actually
or
constructively reduced to practice by the Provider and/or Manager solely
or
jointly with others prior to the Agreement with the Company or during the
Agreement, which refer to, are suggested by, or result from any work which
(i)
the Provider and/or Manager have performed prior to the Term of this Agreement,
(ii) the Provider and/or Manager may perform during the Agreement, or (iii)
from
any information obtained from the Company or any affiliate of the Company.
| 9.2. |
Except
as set forth above, the Creations shall be the exclusive property
of the
Company, and the Provider and Manager acknowledge that all of said
Creations shall be considered as “work made for hire” as that term is
defined in the United States Copyright Act (17 USCA, Section 101)
belonging to the Company. To the extent that any such Creations,
under
applicable law, may not be considered work made for hire by the
Provider
and/or Manager for the Company, the Provider and Manager hereby
agree to
assign and, upon its creation, automatically and irrevocably assigns
to
the Company, without any further consideration, all right, title
and
interest in and to such materials, including, without limitation,
any
copyright, other intellectual property rights, moral rights, all
contract
and licensing rights, and all claims and causes of action of any
kind with
respect to such materials. The Company shall have the exclusive
right to
use the Creations, whether original or derivative, for all purposes
without additional compensation to the Manager or Provider. The
Provider
and Manager will assist the Company in every proper way to perfect
the
Company’s rights in the Creations and to protect the Creations throughout
the world, including, without limitation, executing in favor of
the
Company or any designee(s) of the Company patent, copyright, and
other
applications and assignments relating to the Creations.
|
| 9.3. |
Should
the Company be unable to secure the Provider and/or Manager’s signature on
any document necessary to apply for, prosecute, obtain, or enforce
any
patent, copyright, or other right or protection relating to any
Creation,
whether due to the Manager’s mental or physical incapacity or any other
cause, Provider and Manager hereby irrevocably designate and appoint
the
Company and each of its duly authorized officers and agents as
the
Provider and Manager’s agent and attorney in fact, to act for and in the
Manager’s behalf and stead and to execute and file any such document, and
to do all other lawfully permitted acts
to
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5
further
the prosecution, issuance, and enforcement of patents, copyrights, or other
rights or protections with the same force and effect as if executed and
delivered by the Provider and/or Manager. The Company will use these faculties
only upon duly applying a care analysis of the Creation, properly documented,
in
order to ensure that it will not register rights that may pertain to the
Provider or the Manager. The use of the faculties as per this clause will
be
used by the Company only upon approval of the CEO and the Board of
Directors.
| 9.4. |
The
Provider and Manager agree that they will not, during the Term
or in any
Extended Period, improperly use or disclose any proprietary information
or
trade secrets of any former company or other person or entity and
that the
Manager will not bring onto the premises of the Company any unpublished
document or proprietary information that belongs to any such company,
person or entity unless consented to in writing by such previous
company,
person or entity.
|
|
10.
|
Non-Competition;
Non-Solicitation; Confidentiality.
|
| 10.1. |
Non-Competition.
The Provider and Manager agree that during the Term, in each Extended
Period and for a period of one (1) year immediately following such
termination, Provider and Manager will not engage, directly or
indirectly,
either as principal, agent, consultant, proprietor, creditor, stockholder,
director, officer or employee, or participate in the ownership,
management, operation or control of any business which directly
or
indirectly competes with the business of the Company. The term
"indirectly" will be applied under a constraining interpretation,
applying
to the specific market in which the company operates, without addressing
other alternative energies (like solar energy, wind energy, bio-fuels,
etc,). The Provider and Manager acknowledge and agree that the
current
market for the Company's business extends throughout the world
and that it
is therefore reasonable to prohibit the Provider and Manager from
competing with the Company anywhere in such territory. This Section
shall
not apply to the Provider and/or Manager’s ownership of less than ten
percent (10%) of the capital stock of a company having a class
of capital
stock which is traded on any national stock exchange or on the
over-the-counter market. This Section shall not apply to the activities
of
MoreGasTech SARL (formerly Societe Holding Xxxxxx SARL) in France,
Belgium
and Germany.
|
| 10.2. |
Non-Solicitation.
During the Term and for the period of two (2) years thereafter,
the
Provider and Manager agree that they will not, directly or indirectly,
(i)
solicit, divert or recruit or encourage any of the employees of
the
Company, or any person who was an employee of the Company during
the Term
and each Extended Period, to leave the employ of the Company or
terminate
or alter their contractual relationship in a way that is adverse
to the
Company's interests, (ii) solicit or divert business from the Company,
or
assist any person or entity in doing so or attempting to do so
or (iii)
cause or seek to cause any person or entity to refrain from dealing
or
doing business with the Company or assist any person or entity
in doing so
or attempting to do so.
|
| 10.3. |
Confidential
and Proprietary Information.
|
| 10.3.1. |
The
Provider and Manager will not disclose or use, at any time
either
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during
or
after the Term of this Agreement, any Extended Period, and for a three (3)
year
period following termination of this Agreement, except in the context of
the
duties of the Manager or at the request of the Company or an affiliate of
the
Company, any Confidential and Proprietary Information (as herein defined)
except
to the extent disclosure is or may be required by a statute, by a court of
law,
by any governmental agency having supervisory authority over the business
of the
Company or by any administrative or legislative body (including a committee
thereof) with jurisdiction to order him to divulge, disclose or make accessible
such information, provided, however, that the Provider and/or Manager shall
give
the Company notice of any such request or demand for such information upon
receipt of same and the Provider and Manager shall reasonably cooperate with
the
Company in any application the Company may make seeking a protective order
barring disclosure by the Provider and/or Manager. The Provider and Manager
each
acknowledge that the Confidential and Proprietary Information constitutes
a
unique and valuable asset of the Company and each affiliate of the Company,
and
that any disclosure or other use of the Confidential and Proprietary Information
other than for the sole benefit of the Company or the affiliates of the Company
could cause irreparable harm to the Company or the affiliates of the Company,
as
the case may be. “Confidential and Proprietary Information” shall mean all of
the Company’s (or any affiliate or subsidiary’s) proprietary information,
technical data, trade secrets, and know-how, including, without limitation,
schematics, research, product plans, customer lists, information and plans
about
costs, profits, markets and sales, software, developments, development tools,
inventions, discoveries, processes, ideas, formulas, algorithms, technology,
designs, drawings, business strategies and financial data and information,
including but not limited to Creations, whether or not marked as “Confidential”
or “Proprietary”. “Confidential or Proprietary Information” shall also mean any
and all information received by the Company (or any affiliate) from customers
of
the Company (or an affiliate) or other third parties subject to a duty to
be
kept confidential.
| 10.3.2. |
The
Provider and Manager hereby acknowledge and agree that all personal
property, including, without limitation, Confidential and Proprietary
Information, all books, manuals, records, reports, notes, contracts,
lists, blueprints, and other documents, or materials, or copies
thereof,
and equipment furnished to or prepared by the Provider and/or Manager
in
the course of or incident to this Agreement, including, without
limitation, records and any other materials pertaining to Creations,
belong to the Company. Immediately following the termination of
this
Agreement, the Provider and Manager shall promptly return to the
Company
all such materials, and certify to the Company in writing that
he has not
retained any written or other tangible or electronic material containing
any Confidential and Proprietary Information or other information
pertaining to the Company or any
Creation.
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| 10.4. |
Remedies.
Provider
and Manager agree and acknowledge that the foregoing restrictions
and the
duration and the territorial scope thereof as set forth in this
Section 10
are under all of the circumstances reasonable and necessary for
the
protection of the Company and its business. In the event that the
Provider
or Manager shall breach any of the provisions of Section 9 or 10,
in
addition to and without limiting or waiving any other remedies
available
to the Company, at law or in equity, the Company shall be entitled
to
immediate injunctive relief in any court, domestic or foreign,
having the
capacity to grant such relief, to restrain any such breach or threatened
breach and to enforce the provision of this Agreement.
|
|
11.
|
Responsibility
and Insurance
|
| 11.1. |
The
Company acknowledges that the Manager, who is already an officer
of the
Company, shall provide services to the Company in such capacity.
The
Company undertakes that the Manager shall be insured in a Directors
and
Officers liability policy, on the same terms as are in effect for
the
directors and officers of the Company, in amounts customary in
the
industry in which the Company operates, and that all payments required
to
be paid for such policy are paid.
|
| 11.2. |
The
Provider shall not bear any responsibility regarding the actions
of the
Manager, as he shall be an office holder of the Company and shall
have a
direct duty to the Company.
|
| 12. |
Taxes.
The
Parties shall each be responsible for and shall bear their respective
taxes and other compulsory payments as required by applicable law.
It is
understood and agreed that the Company shall not bear any tax,
applicable
to the Provider and/or Manager, including, but not limited to,
income tax,
social security and health tax.
|
|
13.
|
General
Provisions.
|
| 13.1. |
Governing
Law.
This Agreement shall in all respects be interpreted, enforced and
governed
under the laws of the State of New York, without regard to conflict
of law
rules applied in such State. The language of all parts of this
Agreement
shall in all cases be construed as a whole, according to its fair
meaning,
and not strictly for or against any of the parties.
|
| 13.2. |
Severability;
Amendment.
The provisions of this Agreement are contractual, not mere recitals,
and
shall be construed severably such that, should any part, term or
provision
of this Agreement be declared or be determined by any court to
be illegal
or invalid, the validity of the remaining parts, terms or provisions,
shall not be affected thereby and said illegal or invalid part,
term or
provision shall be modified by the court so as to be legal or,
if not
reasonably feasible, shall be deleted. This Agreement sets forth
the
entire agreement concerning the subject matter herein, and may
not be
modified except by a signed writing by the Parties or the duly
authorized
representatives of the Parties.
|
| 13.3. |
Reliance
Upon Counsel.
Each
of the Parties hereto acknowledges and agrees that (a) such Party
has not
relied on any representations, promises, or agreements of any kind
made to
him or it in connection with their decision to enter into and accept
the
Agreement except for those set forth herein; (b) such Party has
been
advised to consult an attorney before signing this Agreement, and
that
such Party has had the opportunity to consult with an attorney;
(c) such
Party does not feel that he or it is being coerced to sign this
Agreement
or that his or its signing would for any reason not be voluntary;
and (d)
such Party has thoroughly reviewed and understands the effects
of this
Agreement before signing it.
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| 13.4. |
Binding
Effect.
This
Agreement shall be binding upon each of Parties hereto and their
respective partners, officers, directors, stockholders, employees,
agents,
representatives, personal representatives, heirs, assigns, successors
and
affiliates, and shall inure to the benefit of the other Parties
hereto.
|
| 13.5. |
Authority.
The
undersigned representative for each Party certifies that he or
it is fully
authorized by the Party whom he or it represents to enter into
the terms
and conditions of this Agreement and to commit fully and bind such
Party
according to the provisions hereof, including, but not limited,
to
Provider’s authority and to bind Manager to the performance of the
Management Services as set forth
herein.
|
| 13.6. |
No
Waiver.
Failure
of a Party to enforce a right under this Agreement shall not act
as a
waiver of that right or the ability to later assert that right
relative to
the particular situation involved.
|
| 13.7. |
Counterparts.
This
Agreement may be signed in any number of counterparts including
by
facsimile, each of which shall be an original, but all of which
together
shall constitute one instrument, and shall be binding and effective
immediately upon the execution by all Parties of one or more
counterparts.
|
| 13.8. |
Construction
and Joint Preparation.
This
Agreement shall be construed together to effectuate the mutual
intent of
the Parties. The Parties and their counsel have cooperated in the
drafting
and preparation of this Agreement, and this Agreement therefore
shall not
be construed against any Party by virtue of its role as the drafter
thereof. No drafts of this Agreement shall be offered by any Party,
nor
shall any draft be admissible in any proceeding, to explain or
construe
this Agreement. The headings contained in this Agreement are intended
for
convenience of reference only and are not intended to be a part
of or to
affect the meaning or interpretation of this
Agreement.
|
| 13.9. |
Entire
Agreement.
This
Agreement constitutes and contains the entire understanding and
agreement
of the Parties respecting the subject matter hereof and supersedes
any and
all other prior and contemporaneous negotiations, correspondence,
understandings and agreements between the Parties, whether oral
or
written, regarding such subject matter. No agreements altering or
supplementing the terms hereof may be made except by means of a
written
document signed by the duly authorized representatives of the
Parties.
|
| 13.10. |
Further
Assurances. Each
party will cooperate, take such further reasonable action and execute
and
deliver such further documents as may be reasonably requested by
any of
the parties in order to effectuate the intent and purposes of this
Agreement and the parties.
|
| 13.11. |
Survival.
Sections
7,
9,
10,
11,
12
and 13
shall survive the termination of this
Agreement.
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9
IN
WITNESS WHEREOF, the undersigned has executed and delivered this Agreement
on
the day and year first written above.
EUROSPARK
S.A.
By:
/s/
Yochanan Yuval
Name:
Yochanan Yuval
Title:
Director
ENERGTEK
INC.
By:
/s/
Xxxxx
Xxxxx
Name:
Xxxxx Xxxxx
Title:
Chief
Executive Officer
Agrees
to
the terms of the Agreement relevant to his performance and
obligations:
/s/
Xxx
Xxxxxxxxxx
XXX
XXXXXXXXXX
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