EXHIBIT 10.49
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into as of the
lst day of August, 1997 between ENERGY RESEARCH
CORPORATION, a New York corporation (the "Company"), and
XXXXX XXXXXXX, an individual with a current mailing
address at 0000 Xxxxxxxxxx Xxxx, Xxxxxxx, Xxxxxxx 00000,
(the "the Employee"). Unless the context otherwise
requires, the term "Company", shall include the Company
and each of its subsidiaries.
W I T N E S E T H
WHEREAS, the Company desires to employ the Employee
as its President and Chief Executive Officer and the
Employee desires to be employed in such capacity in
accordance with the terms and conditions set forth
herein;
NOW, THEREFORE, in consideration of the covenants,
conditions, undertakings and premises contained herein,
the sufficiency which is hereby acknowledged, the Company
and the Employee agree follows:
ARTICLE 1
EMPLOYMENT AND DUTIES
1.1. Employment; Duties
Subject to the terms and conditions set forth
herein, commencing August 4, 1997 (the "Commencement
Date") the Company agrees to employ the Employee and the
Employee agrees to be employed as President and Chief
Executive Officer of the Company. In such position, the
Employee shall perform such duties as are or may be
assigned to the Employee by the Board of Directors of the
Company (the "Board of Directors") from time to time. In
connection therewith, the Employee shall report to and be
subject to the supervision of the Executive Committee of
the Board of Directors.
1.2. Full Time
The Employee shall devote his full working time,
attention, energies, skills and best efforts exclusively
to the performance of his duties hereunder The Employee
shall not during the term of this Agreement engage in any
other business activity whether or not such activity is
pursued for gain, profit or other pecuniary advantage,
except that the Employee, on his own time, (a) may manage
his own investments, and those of his immediate family,
and (b) may serve as a member of the board of directors
of other corporations subject to the restrictions set
forth in Section 5.1, so long as such activity (as
described in either clause (a) or (b) above), does not,
in the reasonable judgment of the Company's Board of
Directors, adversely affect the performance of his duties
hereunder.
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1.3. Board Membership
The Employee, effective upon the Commencement Date,
shall become a member of the Board of Directors and its
Executive Committee. Thereafter, for so long as the
Employee is serving as Chief Executive Officer of the
Company, the Company will nominate the Employee for re-election
as a management nominee of the Board ofDirectors and use its
reasonable best efforts to cause
the Employee to be so re-elected and, if so elected, to
appoint the Employee as a member of the Executive
Committee of the Board of Directors. If at any time the
Employee ceases to serve as President and Chief
Executive Officer of the Company, if the Board of
Directors so requests, the Employee shall immediately
tender his resignation from Board of Directors and shall
automatically be deemed to have so resigned whether or
not such resignation is tendered.
ARTICLE 2
2.1. Term
The term of the Employee's employment by the Company
hereunder shall commence on the Commencement Date and,
except as otherwise provided in this Agreement with
respect to earlier termination, shall continue until
terminated by either party pursuant to Article 7.
ARTICLE 3
COMPENSATION
3.1. Base Salary
For all service to be rendered by the Employee under
this Agreement, including services as a officer, director
and member of any committee, and such other duties as the
Board of Directors or the Executive Committee may assign
to him in accordance with Section 1.1 hereof, the Company
agrees to pay the Employee a base salary of $320,000 per
annum. The Employee's base salary shall be subject to
periodic review and adjustment by the Board of Directors
in its sole discretion, provided that the base salary may
not be reduced below $320,000 per year. The base salary
shall be payable at such times as is customary for
employees of the Company and in accordance with the
normal payroll practices of the Company.
3.2. Incentive Compensation
Commencing with the Company's fiscal year beginning
November 1, 1997, the Employee shall be a participant in
a new Company incentive compensation plan to be developed
by the Employee in consultation with the Compensation
Committee of the Board of Directors, subject to the
approval of the Board of Directors (the "Incentive
Compensation Plan").
3.3. Expenses
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(a) General. In addition to base salary and
incentive compensation, the Company shall reimburse the
Employee for all reasonable and necessary business
expenses actually incurred by him in the performance of
his duties, including, without limitation, expenses for
travel, meals, entertainment and other miscellaneous
business expenses, in accordance with the Company's
policies and practices as may be in effect from time to
time.
(b) Moving Expenses. The Company agrees to pay for
or reimburse the Employee, in an amount not to exceed
$75,000 in the aggregate (the "Moving Expense Cap"), for
all reasonable out-of-pocket expenses incurred by him in
connection with his relocation (including the relocation
of his family (spouse and minor children)) from Atlanta,
Georgia to the vicinity of the Company headquarters
location (the "Company Location"), including, without
limitation, (i) reasonable moving company expenses and
storage fees, (ii) reasonable fees and expenses incurred
in connection with the sale of his home in Georgia, (iii)
reasonable fees and expenses incurred in connection with
his purchase of a home in the vicinity of the Company
Location, (iv) reasonable expenses associated with visits
by the Employee's spouse to the Company Location to
assist in the purchase of the new residence, and (v)
reasonable interim living expenses to maintain an
apartment in the vicinity of the Company Location through
the earlier to occur of the Employee's purchase of his
new residence or March 31, 1998. It is further
understood and agreed that the Employee's family may
remain located in Georgia until up to March 31, 1998 and
that relocation expenses, subject to the Moving Expense
Cap, shall also include the Employee's reasonable travel
expenses to and from Georgia to visit his family
(excluding business travel) during this interim period.
The Employee shall coordinate all travel through the
Company
(c) Documentation. Reimbursement or payment by the
Company of the Employee's expenses as set forth in this
Section 3.3 shall be subject to the Employee's submission
of written, itemized expense accounts and such additional
substantiation and justification as the Company may
reasonably request consistent with the Company's
reimbursement policies generally applicable for its
salaried employees.
ARTICLE 4
COMPANY BENEFITS
4.1. Vacation
The Employee shall be entitled to receive four weeks
of paid vacation per calendar year (pro rated for any
partial year), which shall be taken at such time or times
as will not unreasonably hinder or interfere with the
Company's business or operations.
4.2. Death Benefit and Life Insurance
(a) The Employee is entitled to participate in any
life insurance, accidental death and dismemberment and
travel accident plans maintained by the Company for its
employees, on terms no less favorable than those extended
to any other senior executives of the Company.
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(b) The Company may, if it so chooses, apply for
and procure in its own name, and for its own benefit,
additional life insurance and disability insurance on the
Employee, and the Employee shall have no right, title or
interest therein.
(c) The Employee agrees to submit to any reasonable
medical or other examination, and to execute any
application or other instrument reasonably necessary to
obtain any policy of insurance under this Article.
4.3. Liability Insurance
The Company will obtain and maintain at all times
directors' and officers' liability insurance for the
Employee, so long as such insurance can be obtained on
terms acceptable to the Company's Board of Directors.
4.4. Indemnification
The Company agrees to defend and shall indemnify and
hold the Employee harmless to the fullest extent
permitted by law from any and all liability, costs, and
expenses which may be assessed against the Employee by
reason of the performance of his responsibilities and
duties under the terms of this Agreement, provided such
liability does not result from willful misconduct or
gross negligence of the Employee.
4.5. Retirement Plan
The Employee is entitled to participate in any
retirement plan maintained by the Company for its
employees (including, without limitation, pension,
annuity, profit-sharing and deferred compensation plans).
4.6. Severance Benefit
If at any time prior to the fifth anniversary of the
Commencement Date (the "Severance Period"), the Employee
ceases to be employed by the Company as a result of the
Company's termination of the Employee pursuant to Section
7.4 (which shall not include any termination that is
otherwise within Article 6) or the Employee's termination
of his employment pursuant to Section 7.1, the Company
shall pay the Employee as a severance benefit, (a) two
times his then base salary plus (b) an amount equal to
the Employee's bonus from the Company, if any, for the
immediately preceding year. This severance benefit shall
be payable by the Company through (i) the continuation of
the Employee's base salary for a period of one year and
(ii) the payment of the balance in four equal quarterly
installments, with the first such payment due three
months after the termination and the final payment due
one year after the termination. The severance obligation
set forth in this Section 4.6 shall be in lieu of and not
in addition to any other severance benefits made
available to other employees of the Company. After the
termination of the Severance Period, the severance
benefit, if any, payable to the Employee upon his
termination shall be in accordance with the Company's
then existing severance policy, if any, for its salaried
employees.
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4.7. Stock Options
(a) Effective on the execution of this Agreement,
the Company shall issue to the Employee an option to
purchase 250,000 shares of the Company's Common Stock
with an exercise price equal to the closing price of the
Company's Common Stock on the American Stock Exchange on
the date hereof, pursuant to an Option Agreement in the
form set forth as Exhibit A to this Agreement.
(b) Notwithstanding anything to the contrary in the
foregoing, the Employee acknowledges and agrees that
there are only 149,000 shares available for issuance
under the Company's 1988 Stock Option Plan, as amended,
and that, as a result, the option to purchase 101,000 of
the 250,000 shares will be subject to stockholder
approval in connection with a proposed increase in the
number of shares of Common Stock available for issuance
under the 1988 Plan or the adoption of a new stock option
plan at the Company's next annual meeting of
stockholders. The Company hereby undertakes to cause
such a proposal to be presented for stockholder approval
at such meeting and to use its reasonable best efforts to
cause such a proposal to be adopted. The option to
purchase shares in excess of that permitted under the
1988 Plan shall be of no force and effect unless and
until such additional shares are approved. In the event
that such additional shares are not authorized, the
Company shall grant the Employee so called phantom stock,
stock appreciation rights or such other rights as shall
provide the Employee with benefits substantially
equivalent to the benefits that the Employee would have
received with respect to that portion of the option which
has been nullified.
4.8. Other Benefit Plans
The Employee shall further be entitled to
participate in and receive benefits under any accident,
disability, health and dental insurance, profit sharing,
or similar plans generally made available to its
employees.
ARTICLE 5
RESTRICTIONS
5.1. Non-Competition
(a) So long as the Employee is employed by the
Company, serving as a director of the Company or is
receiving payments from the Company hereunder (whether in
connection with the Employee's employment hereunder or as
a result of the termination of the Employee's employment
hereunder) or otherwise in connection with the Employee's
employment with the Company after the termination of this
Agreement, and for a period of two years thereafter (the
"Noncompetition Period"), the Employee shall not,
directly or indirectly, whether as owner, partner,
shareholder, director, consultant, agent, employee,
guarantor, surety or otherwise, or through any person,
consult with or in any way aid or assist any competitor
of the Company or engage or attempt to engage in any
employment, consulting or other activity which directly
or indirectly competes with the Business of the Company.
For purposes of this Agreement, the term "employment"
shall include the performance of services by Employee as
an employee,
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consultant, agent, independent contractor or otherwise
and the term "Business" shall mean the research,
development, manufacture, sale or distribution of fuel
cells, batteries or related products and any other
business engaged in, planned or under development by the
Company with respect to which the Employee has had access
to Company Information or Customer Information (as such
terms are defined in Section 5.3) during the
Noncompetition Period. The Employee acknowledges that
his participation in the conduct of any such Business
alone or with any person other than the Company will
materially impair the Business and prospects of the
Company.
(b) In addition to and without limiting the
foregoing, during the Noncompetition Period, Employee
shall not knowingly do, attempt to or assist any other
person in doing or attempting to do any of the following:
(i) hire any director, officer, employee, or agent of the
Company (a "Company Employee") or encourage any such
person to terminate such relationship with the Company,
as the case may be (for purposes hereof, the Employee
shall be deemed to have so encouraged a Company Employee
to terminate such relationship with the Company if the
Employee hires or otherwise assists any person in hiring
any such Company Employee within six months after the
Company Employee terminates his or her relationship with
the Company), (ii) encourage any customer, client,
supplier or other business relationship of the Company to
terminate or alter such relationship, whether contractual
or otherwise, to the disadvantage of the Company; (iii)
encourage any prospective customer or supplier not to
enter into a business relationship with the Company; (iv)
impair or attempt to impair any relationship, contractual
or otherwise, written or oral, between the Company and
any customer, supplier or other business relationship of
the Company; or (v) sell or offer to sell or assist in or
in connection with the sale to any customer or
prospective customer of the Company any products of the
type sold or rendered by the Company.
(c) Nothing in this Agreement shall preclude
Employee from making passive investments of not more than
2% of a class of securities of any business enterprise
registered under the Securities Exchange Act of 1934.
5.2. Intellectual Property
(a) The Employee agrees to promptly disclose to the
Company all ideas and suggestions coming within the scope
of the business of the Company, whether now existing or
hereafter arising and wherever located, which were
conceived or refined by him during his employment with
the Company, whether or not conceived or made during
regular working hours, and all such ideas and suggestions
shall be the sole property of the Company. In the event
that any such idea or suggestion is deemed by the Company
to be an invention of patentable nature, the Employee,
whether or not in the employ of the Company, will assist
the Company in obtaining, maintaining and enforcing
patents for the invention in the United States of America
and in any and all foreign countries. In addition, the
Employee will supply evidence, give testimony, sign and
execute all papers and do all other legal and proper
things which the Company reasonably may deem necessary
for obtaining, maintaining, and enforcing patents for
said invention and for vesting in the Company full title
thereto. The foregoing obligations of the Employee shall
be further subject to the Employee being reimbursed for
his reasonable out-of-
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pocket expenses in connection with services rendered by
him pursuant to the previous two (2) sentences.
(b) The Employee acknowledges that all works of
authorship (including, without limitation, works of
authorship that contain software program code) relating
to the business of the Company and produced during
Employee's employment with the Company, whether they are
or are not created on the Company's premises or during
regular working hours, are works made for hire and are
the property of the Company, and that copyrights in those
works of authorship are the property of the Company. If
for any reason the Company is not the author of any such
work of authorship for copyright purposes, the Employee
hereby expressly assigns all of his rights in and to that
work to the Company and agrees to sign any instrument of
specific assignment requested.
5.3. Confidentiality.
The Employee recognizes that the Company is engaged
in a continuous program of research and development
relating to its business opportunities, market
forecasting, data processing, operating procedures,
products, methods, systems, techniques, machinery,
tooling, designs, specifications, processes, plans, "know
how" and trade secrets and that the Company has developed
information regarding costs, profits, markets, products,
customer lists, tooling, designs, plans for present and
future development and expansion into new markets and
other proprietary information, which is secret and
confidential in nature and is not available to the
public, which gives the Company a special competence in
its various fields of endeavor which are otherwise deemed
to be proprietary to the Company, all of which have been
acquired or developed at considerable expense to the
Company. The Employee acknowledges that a relationship
of confidence and trust will be developed between the
Employee and the Company with respect to information of
a confidential or secret nature made known to Employee
during the term of the Employee's employment by the
Company. The information referred to in the preceding
two sentences is hereafter collectively referred to as
the "Company Information." The Employee further
recognizes that the Employee will have access to certain
information concerning the Company's customers which the
Company treats and desires to continue to treat on a
confidential basis ("Customer Information") and that the
Employee, during the course of his employment with the
Company will have access to such Customer Information.
Accordingly, the Employee agrees that:
A. The Employee shall not disclose, either
directly or indirectly, under any circumstances (except
as reasonably required in furtherance of the business of
the Company), at any time, any of the Company Information
or Customer Information to any person, firm, corporation,
association or other entity for any reason or purpose
whatsoever; provided that the Employee shall not be
deemed to be in breach of such covenant if (i) the
Employee makes such disclosure pursuant to a subpoena or
order of a court of competent jurisdiction, (ii) the
Employee shall have promptly given written notice to the
Company of the request or demand for such
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disclosure, (iii) the Company shall have been afforded
the right to participate at its own expense in objecting
to or limiting the nature and scope of such disclosure
and (iv) the disclosure is subject to all judicial
protection available for like material, such as
protective orders and sealed records of proceedings. The
Employee further agrees not to use, directly or
indirectly, under any circumstances for his own benefit
or for the benefit of any person, firm, corporation or
other entity (except as reasonably required in
furtherance of the business of the Company), at any time,
any of the Company Information or Customer Information.
B. Upon termination of the Employee's employment
with the Company, the Employee shall deliver to the
Company all files and records of any nature which are in
the Employee's possession or control and which relate in
any manner to his employment or to the activities of the
Company.
5.4. Injunctive Relief
The Employee acknowledges that the restrictions
contained in this Article are reasonable in view of the
nature of the business in which the Company is engaged
and his position with the Company which will provide him
with extensive knowledge of the business.
The Company and the Employee mutually agree that the
Employee's obligations under this Article are of a
special and unique character which gives them a peculiar
value, and the Company cannot be reasonably or adequately
be compensated in damages in an action at law in the
event the Employee breaches such obligations. The
Employee therefore expressly agrees that, in addition to
any other rights or remedies which the Company may
possess, the Company shall be entitled to injunctive and
other equitable relief to prevent a breach of this
Article by the Employee, including a temporary
restraining order or temporary injunction from any court
of competent jurisdiction restraining any threatened or
actual violation, and each party hereby consents to the
entry of such order and injunctive relief and waives the
making of a bond as a condition for obtaining such
relief. Such rights shall be cumulative and in addition
to any other legal or equitable rights and remedies the
Company may have.
5.5. Survival Enforceability
It is expressly agreed by the parties hereto that
the provisions of this Article shall survive the
termination of this Agreement.
If any one or more of the provisions contained in
this Article shall for any reason in any jurisdiction be
held to be excessively broad as to the time, duration,
geographical scope, activity or subject, it shall be
construed with respect to such jurisdiction, by limiting
or reducing it, so as to be enforceable to the extent
compatible with the applicable law of such jurisdiction
as it shall then appear.
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ARTICLE 6
DEATH; DISABILITY
6.1. Death
If the Employee dies while employed under this
Agreement, this Agreement shall terminate immediately.
The Company will pay to the Employee's estate his base
salary under Section 3.1 through the last day of the
calendar month in which he dies, plus any incentive
compensation awarded to the Employee under the Incentive
Compensation Plan, but not yet paid, and such death
benefits as may be provided pursuant to Section 4.2.
6.2. Disability
If the Employee fails to perform his duties under
this Agreement due to "Disability", as defined in Section
6.2 B(i) or (ii), the Company may terminate this
Agreement upon 30 days written notice to him. In that
event, the Company shall pay the Employee his base salary
under Section 3.1 through the date of termination. If
the Employee fails to perform his duties under this
Agreement due to "Disability," as defined in Section 6.2
B(iii), then the Company may immediately terminate this
Agreement upon the payment to the Employee of his base
salary for a period of seven (7) months, less such
payments previously made by the Company to the Employee
on account of such Disability. In addition, upon any
termination based upon Disability, the Company shall pay
to the Employee any incentive compensation awarded to the
Employee under the Incentive Compensation Plan but not
yet paid; provided, however, that to the extent the
Employee is receiving disability benefits pursuant to the
Company's disability insurance policy, the amount of such
benefits shall be credited against the Employee's base
salary during the period prior to the date of
termination.
A. If the Company gives notice of termination
under this Section and, before the termination date
stated in the notice, the Employee's Disability ceases
and he takes up and resumes performance of his duties
under this Agreement, the notice of termination shall be
void and of no effect, and this Agreement shall continue
in effect as though such notice had not been given.
B. The term "Disability" shall mean the inability
of the Employee to perform for the Company the duties
specified in Section 1.1 by reason of any medically
determinable physical or mental impairment for (i) a
period of six consecutive months, (ii) for shorter
periods aggregating six months in any 12-month period or
(iii) if the Board of Directors determines that it is
probable that the Disability will continue for a length
of time so as to constitute a Disability under clauses
(i) or (ii) above. The determination of whether the
Employee is Disabled shall be made by the Board of
Directors on the basis of written medical evidence
reasonably satisfactory to it.
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ARTICLE 7
TERMINATION
7.1. Termination by the Employee for Good Reason
The Employee may terminate this Agreement for good
reason upon thirty (30) days written notice to the
Company setting forth with specificity the grounds for
termination upon the occurrence of any of the following:
(a) the failure of the Company to observe or comply with
any of its material obligations under this Agreement, if
such failure has not been cured within 30 days after
written notice thereof has been given by the Employee to
the Company; (b) the failure of the Employee to be
elected or reelected to the Board of Directors or its
Executive Committee as provided in Section 1.3, (c) the
dissolution of the Company; or (d) any merger in which
the Company is not the surviving corporation and in which
the stockholders of the Company own less than 50% of the
voting securities of the merged entity upon the
effectiveness of the merger, or any consolidation, sale
of substantially all of the assets of the Company or
change of control of the Company, provided the Employee
has not approved the transaction by voting for it either
as a director or shareholder. For purposes of clause (a)
a material breach by the Company shall include a material
change in the reporting responsibilities of the Employee
such that the Employee is no longer effectively serving
as the Chief Executive Officer of the Company, a
relocation to offices that do not serve as the principle
executive offices of the Company, a material reduction in
benefits or other perquisites of office such that the
Employee is not receiving the benefits set forth herein
or the benefits and other perquisites generally granted
for executive positions within the Company. For purposes
of clause (d) above, a "change of control" shall be
presumed to have occurred if within any 12-month period
a single person or entity, or related group of persons or
entities, acquires 50% or more of the outstanding voting
stock of the Company. In the event of a termination for
good reason under this Section, the Company shall pay the
Employee (i) his base salary as then in effect under
Section 3.1 through the date of termination, (ii) any
incentive compensation awarded to the Employee under the
Incentive Compensation Plan, but not yet paid, and (iii)
the severance benefit set forth in Section 4.6.
7.2. Termination by the Company for Cause
The Company may terminate this Agreement for cause
in the manner set forth below. For purposes of this
Section, "cause" shall mean a material breach by the
Employee of the terms of this Agreement with results that
are materially and demonstrably injurious to the business
of the Company. The term "cause" as used in the
preceding sentence does not include the Employee's
erroneous judgment or judgments of a technical,
scientific, financial, legal and/or environmental nature
which were, although erroneous, nevertheless reasonable
at the time and under the circumstances in which they
were made. In the event of termination under this
Section, the Company shall pay to the Employee his base
salary under Section 3.1 through the date of termination
stated in the notice plus any incentive compensation
awarded to the Employee under the Incentive Compensation
Plan but not yet paid, and the Employee shall, if so
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requested by the Board of Directors, perform his
duties under Article 1 through the date of termination
stated in the notice.
7.3. Termination by the Company for Cause-Procedure
Notwithstanding anything to the contrary set forth
herein, the Employee shall not be deemed to be have been
terminated for cause without (i) delivery to the Employee
of written notice setting forth the reasons for the
Company's intention to terminate for cause, (ii) an
opportunity for the Employee, together with his counsel,
to be heard before the Board of Directors and (iii)
delivery to the Employee of a notice of termination from
the Board of Directors stating that a majority of the
members of the Board have determined in good faith that
the Employee was guilty of conduct that supports the
termination for cause, specifying the conduct which gave
rise to such termination.
7.4. Termination by the Company or the Employee
Without Cause
Either the Company or the Employee may terminate
this Agreement for reasons other than as set forth above
in Section 7.1 or Section 7.2 and which are not otherwise
within Article 6 upon 30 days written notice. Upon such
termination, the Company shall pay the Employee his base
salary under Section 3.1 through the date of termination
(provided, however, that the Employee continues to be
available to perform the services required under Section
1.1 through the date of termination), plus any incentive
compensation awarded to the Employee under the Incentive
Compensation Plan, but not yet paid, and any accrued
vacation. In addition, upon the Company's termination of
the Employee without cause, the Company shall be required
to pay the Employee the severance benefit set forth in
Section 4.6. Nothing herein shall prohibit the Company
from relieving the Employee of any or all of his duties
hereunder pending the expiration of the 30-day notice
period.
7.5. Termination of Duties
Notwithstanding anything to the contrary set forth
herein, at any time on or after delivery of written
notice to the Employee, the Company may relieve the
Employee of all of his duties and responsibilities
hereunder and may relieve the Employee of authority to
act on behalf of, or legally bind, the Company; provided,
however, that any such action by the Company shall not
relieve the Company of its obligation to pay to the
Employee all compensation and benefits otherwise provided
for in this Agreement.
ARTICLE 8
MISCELLANEOUS
8.1. No Conflicting Agreements.
The Employee represents and warrants to the Company,
that the Employee is not under any obligation to any
person or entity which is inconsistent with or in
conflict with any of the terms of this Agreement or which
would prevent, limit or impair in any way the Employee's
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performance of all the terms of this Agreement and
the Employee agrees not to enter into any agreement,
either written or oral, in conflict herewith.
8.2. Entire Agreement
This Agreement contains the entire understanding and
agreement between the Company and the Employee and cannot
be amended, modified, or supplemented in any respect
except by subsequent written agreement entered into by
both parties.
8.3. Successors of the Company
This Agreement shall inure to the benefit of and be
binding upon the Company, its successors and assigns,
including, without limitation, any person, firm,
corporation or other entity which may acquire all or
substantially all of the Company's assets and business,
or with or into which the Company may be consolidated or
merged, and this provision shall apply in the event of
any subsequent merger, consolidation or transfer. In
every respect, this Agreement shall inure to the benefit
of and be binding upon the Employee, his heirs, executors
and personal representatives and, being personal in
nature, shall not be assignable by the Employee.
8.4. Effect of Waiver
The waiver by either party of a breach of any
provision of this Agreement shall not operate as or be
construed as a waiver of any subsequent breach.
8.5. Notices
Any notice, request, demand or other communication
in connection with this Agreement must be in writing and
shall be deemed to have been given and received three
days after a certified or registered letter containing
such notice, properly addressed, with postage prepaid, is
deposited in the United States mail; and, if given
otherwise than by registered or certified mail, it shall
not be deemed to have been given until actually delivered
to and received by the party to whom it is addressed.
A. Notice to the Company shall be given at its
principal mailing address, which at the time of execution
of this Agreement is 0 Xxxxx Xxxxxxx Xxxx, Xxxxxxx,
Xxxxxxxxxxx, 00000, Attention: Corporate Secretary, or
at such other address as it may designate, with a copy to
Xx. Xxxxxxx X. X. Xxxxxxxx, 000 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx, 00000, and Mr. Xxxxxxx Xxxxxx, 000 Xxxx
Xxxx Xxxxxx, Xxxxxx, Xxxxxxxx, 00000.
B. Notice to the Employee shall be given at his
home address, which at the time of execution of this
Agreement is the address set forth in the heading of this
Agreement, or at such other address as he may designate.
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8.6. Counterparts
This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the
same instrument.
8.7. Severability
If, in any jurisdiction, any provision of this
Agreement or its application to any party or
circumstances is restricted, prohibited or unenforceable,
such provision shall, as to such jurisdiction, be
ineffective only to the extent of such restriction,
prohibition or unenforceability without invalidating the
remaining provisions hereof and without affecting the
validity or enforceability of such provision in any other
jurisdiction or its application to other parties or
circumstances.
8.8. Survival
Each of the terms and provision of this Agreement
which are expressly or impliedly so intended shall
survive the termination of this Agreement.
8.9. Applicable Law
This Agreement shall be governed by and construed
according to the laws of the State of Connecticut.
8.10. Attorney's Fees
In the event of a dispute between the parties
relating to this Agreement, the parties agree that the
losing party shall pay the reasonable attorney's fees and
expenses of the prevailing party.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the day and year first stated above.
ENERGY RESEARCH
CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
---------------------
Xxxxxx X. Xxxxxxx
Chairman of the Board
/s/ Xxxxx Xxxxxxx
---------------------
Xxxxx Xxxxxxx
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