AMENDED EMPLOYMENT AGREEMENT
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THIS AMENDED EMPLOYMENT AGREEMENT (the "Agreement") is dated as of this
25th day of May, 2001, and is by and between Evergood Products Corporation, a
Delaware corporation with an office for purposes of this Agreement at 000 Xxxxxx
Xxxx, Xxxxxxxxxx, Xxx Xxxx 00000 and its subsidiaries, (hereinafter collectively
the "Company" or "Employer") and Xxxxxxxxx Xxxx (hereafter the "Employee") and
it amends and replaces the existing Employment Agreement between Employee and
Company.
W I T N E S S E T H :
WHEREAS:
(a) Company still wishes to engage the services of Employee to render
services for and on its behalf in accordance with the following terms,
conditions and provisions; and
(b) Employee still wishes to perform such services for and on behalf of the
Company, in accordance with the following terms conditions and provisions.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
herein contained and the parties hereto intending to be legally bound hereby
agree as follows:
1. EMPLOYMENT. Company hereby employs Employee and Employee accepts such
employment and shall perform her duties and the responsibilities provided for
herein in accordance with the terms and conditions of this Agreement.
2. EMPLOYMENT STATUS. Employee shall at all times be Company's employee
subject to the terms and conditions of this Agreement.
3. TERM. The term of this Agreement (the "Term") shall commence on May 25,
2001, and shall terminate on January 24, 2005 (the "Termination Date"), for a
total term of 4 years and 8 months, unless earlier terminated pursuant to terms
and provisions of this Agreement; and, will be extended for additional five
consecutive (5) year terms on terms mutually agreed to by the parties.
4. POSITION. During Employee's employment hereunder, Employee shall serve
as an officer and director of the Company. In such position, Employee shall have
the customary powers, responsibilities and authorities of officers in such
position of corporations of the size, type and nature of the Company including
being generally responsible for the operations of Employer's business and the
day-to-day and certain financial decisions of the Employer's business. Employee
shall perform such duties and exercise such powers commensurate with her
position and responsibilities. Neither Employee's title(s) nor any of her
functions nor the manner in which he shall report shall be changed, diminished
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or adversely affected during the Term, as it may be extended, without her
consent. Employee shall be provided with an office, staff and other working
facilities consistent with her positions and as required for the performance of
her duties. In addition, Company agrees to cause Employee to be nominated to
serve as a director of the Company and to use its best efforts to cause Employee
to be elected to the Board and be retained as a director of the Company during
Employee's employment during the Term, as it may be extended.
5. COMPENSATION.
(a) For the performance of all of Employee's services to be rendered
pursuant to the terms of this Agreement, Company will pay and Employee will
accept the following compensation: Base Salary. During the Term, Company shall
pay the Employee an initial base annual salary of $450,000 (the "Base Salary")
payable in regular installments in accordance with the Company's usual payment
practices (which currently is every week) and such Base Salary shall not be
decreased during the Term, as it may be extended. Employee shall be entitled to
such further increases, if any, in her Base Salary as may be determined from
time to time in the sole discretion of the Board of Directors of the Company
(the "Board"); but, in any event, Employee shall be entitled to receive an
annual increase equal to the increase in the CPI for the New York Metropolitan
Area on an annual basis plus three (3%) per cent. Employee's Base Salary, as in
effect from time to time, is hereinafter referred to as the "Employee's Base
Salary".
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(b) Company shall deduct and withhold from Employee's compensation all
necessary or required taxes, including but not limited to Social Security,
withholding and otherwise, and any other applicable amounts required by law or
any taxing authority.
(c) Employee shall be entitled to bonus compensation in the sole and
absolute discretion of the Board of Directors of the Company.
(d) As a result of Employee's long service to Employer and the possibility
that Employee may retire during the Term, as same may be extended, in such event
the Board of Directors in it's sole and absolute discretion will enter into a
Consulting Agreement with Employee in the place and stead of this Employment
Agreement with Employee becoming a consultant receiving a consulting fee at the
rate of $120,000 per annum plus all of the applicable benefits provided for
under this Agreement.
6. EMPLOYEE BENEFITS.
(a) During the Term, as it may be extended, and so long as Employee is not
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terminated for cause Employee shall receive and be provided health and life
insurance benefits, and during Employee's employment hereunder, Employee shall
receive and be provided employee benefits (including without limitation, fringe
benefits, vacation, automobile, retirement plan participation and life, health,
accident and disability insurance, etc., (collectively, "Employee Benefits")) on
the same basis as those benefits are generally made available to the most senior
executives of the Company. Employee shall be entitled to receive not less than
four weeks vacation per year and if such vacation time, is not taken by
Employee, in the then current year, Employee, at her option, may accrue vacation
or receive compensation at the then current level.
(b) Without limiting the generality of the foregoing, during Employee's
employment hereunder, Company shall use its reasonable efforts to obtain, keep
in effect, and pay premiums upon, insurance on the life of Employee payable to
such persons as Employee may, from time to time, designate in writing to the
Company or in the event Employee fails to provide such designation, to the legal
representative of Employee's estate. If and so long as the Company establishes
and maintains a group life insurance program for which Employee is eligible
without cost to Employee, benefits under such program shall offset the insurance
obligation otherwise provided for in this Section 6. Employee agrees to submit
to any physical examination required by any prospective insurer, and will
otherwise cooperate with the Company in connection with any life insurance on
Employee's life the Company may wish to obtain. If Employee is determined to be
suffering from a congenital defect or other illness or condition which would
preclude the Company from obtaining such insurance at a cost substantially
equivalent to the cost of obtaining such insurance for a healthy individual of
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Employee's age and gender, Employee shall have the option to cause the Company
to obtain such insurance with Employee paying the excess premium above that
which the Company would have been responsible for had Employee not been
suffering from such defect, illness or condition, and if Employee does not
exercise such option in a timely fashion, the Company shall purchase the amount
of insurance, if any, that can be purchased at a cost substantially equivalent
to the cost of obtaining such insurance for a healthy individual of Employee's
age and gender. In the event that Employee does not qualify for any such life
insurance, Company shall pay directly to Employee an amount equal to such
premiums that Company would have paid to any insurance company to obtain such
life insurance on an annual basis.
(c) At the Company's sole expense, Employee's travel for the Company on
business shall be paid for by the Company, portal to portal.
(d) In addition to the benefits for which Employee shall be eligible
pursuant to paragraph (a) above, Company shall procure and maintain, if
reasonably obtainable, at its cost, catastrophic health insurance for the
benefit of Employee; provided, Employee shall be insurable for such health
insurance at reasonable and customary rates. Employee agrees to submit to any
physical examination required by any prospective insurer, and will otherwise
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cooperate with the Company in connection with obtaining such health insurance.
If Employee is determined to be suffering from a congenital defect or other
illness or condition which would preclude the Company from obtaining such
insurance at a cost substantially equivalent to the cost of obtaining such
insurance for a healthy individual of Employee's age and gender Employee shall
have the option to cause the Company to obtain such insurance with Employee
paying the excess premium above that which the Company, would have been
responsible for had Employee not been suffering from such defect, illness or
condition, and if Employee does not exercise such option in a timely fashion,
the Company shall purchase the amount of insurance, if any, that can be
purchased at a cost substantially equivalent to the cost of obtaining such
insurance for a healthy individual of Employee's age and gender.
7. BUSINESS EXPENSES AND PERQUISITES.
(a) Reasonable travel, entertainment and other business expenses incurred
by Employee in the performance of his duties hereunder shall be reimbursed by
the Company in accordance with Company policies as in effect from time to time.
In addition, Employee shall be entitled to use, in connection with his
performance of services hereunder, transportation services of a car.
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(b) Company shall provide to Employee a new automobile, including all
related maintenance, repairs, insurance, parking and other costs. The base
annual automobile rental expense shall not exceed $12,000 per annum.
8. TERMINATION.
(a) For Cause by the Company. (i) Employee's employment hereunder may be
terminated by the Company for cause. For purposes of this Agreement, "cause"
shall mean (i) Employee's unjustified failure to perform his(her) duties
hereunder or to follow reasonable directions of the Board within 20 business
days after receipt of written notice by Employee of such failure, (ii) willful
misconduct by Employee in connection with his employment, (iii) Employee's
conviction of, or plea of nolo contendere to, any crime constituting a felony
under the laws of the United States or any State thereof, or (iv) Employee's
material breach of any of the material provisions of this Agreement, which
breach Employee has failed to cure within 20 business days after receipt of
written notice by Employee of such breach or which breach Employee has failed to
begin to attempt to cure during said 20 day period if the breach is not curable
during the 20 day period. Termination of Employee's employment pursuant to this
Section 8(a) shall be made by delivery to Employee of a copy of a resolution
duly adopted by the affirmative vote of not less than a majority of the Board at
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an actual meeting of the Board called and held for that purpose (after 30 days
prior written notice to Employee and a reasonable opportunity for Employee to be
heard before the - Board prior to such vote) finding that in the good faith
judgment of the Board, Employee was guilty of conduct set forth in any of
clauses (i) through (iv) above and specifying the particulars thereof.
(ii) If Employee is terminated for cause, he(she) shall be entitled to
receive Employee's Base Salary from Company for a period of one (1) year from
the date of termination. All other benefits, if any, due Employee following
Employee's termination of employment pursuant to this Subsection 8 (a) shall be
determined in accordance with the plans, policies and practices of the Company
for most senior executives.
(b) Disability or Death. (i) Employee's employment hereunder shall
terminate upon his/her death or if Employee becomes physically or mentally
incapacitated and is therefore unable (or will as a result thereof, be unable)
for a period of six (6) consecutive months or for an aggregate of twelve (12)
months in any twenty-four (24) consecutive month period to perform his duties
(such incapacity is hereinafter referred to as "Disability"). If Company
terminates Employee's employment under the terms of this Agreement and Employee
does not receive disability insurance payments under the terms hereof in an
amount, at least, of $25,000 per month pursuant to a policy maintained and paid
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for by the Company, Company shall be responsible to continue to pay Employee
Base Salary during the Term. Any question as to the existence of the Disability
of Employee as to which Employee and the Company cannot agree shall be
determined in writing by a qualified independent physician mutually acceptable
to Employee and the Company. If Employee and the Company cannot agree as to a
qualified independent physician, each shall appoint such a physician and those
two physicians shall select a third who shall make such determination in
writing. The determination of Disability made in writing to the Company and
Employee shall be final and conclusive for all purposes of the Agreement.
(ii) Upon termination of Employee's employment hereunder during the Term
for Disability, Employee shall receive from the Company 50% of Employee's Base
Salary through the end of the Term and that amount equivalent to 50% of the last
bonus received by Employee under the terms of this Agreement times the number of
years remaining in the Term. Employee shall be entitled to no further payments
of Employee's Base Salary under this Agreement, provided that any payment under
this Section 8(b)(ii) shall be reduced by the amount of any disability benefits
paid to Employee under any other disability plan, program or arrangement
maintained and paid for by the Company or its affiliates.
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(iii) Upon termination of Employee's employment hereunder during the Term,
as it may be extended, as a result of death, Employee's estate or named
beneficiary(ies) shall receive from the Company (x) Employee's Base Salary at
the rate in effect at the time of Employee's death through the end of the sixth
month after the month in which his death occurs and pro rata bonus paid to
Employee during the immediately preceding year of the Term, and (y) the proceeds
of any life insurance policy maintained for his benefit by the Company pursuant
to Section 6(b) under this Agreement.
(iv) All other benefits, if any, due Employee following Employee's
termination of employment pursuant to this Subsection 8(b) shall be determined
in accordance with the plans, policies and practices of the Company and shall be
at least equal to those received by the most senior executives and no senior
executive shall receive any fringe benefit that Employee does not receive.
(c) Without Cause by the Company or For Good Reason.
(i) If Employee's employment is terminated by the Company without cause
(other than by reason of Disability or death) or Employee resigns for good
reason, in either case prior to a Change of Control, then Employee shall be
entitled to a lump sum cash payment from the Company, payable within 10 days
after such termination of employment, in an amount equal to the greater of 2.49
times the sum of Employee's Base Salary and immediately prior year's bonus as in
effect as of the date of such termination of employment or Employee's Base
Salary and immediately prior year's bonus payable for the balance of the Term on
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the basis of Employee's most recent year Employee's Base Salary and the bonus
received. All other benefits, if any, due Employee following Employee's
termination of employment pursuant to this Subsection 8(c)(i) shall be
determined in accordance with the plans, policies and practices of the Company
and shall be at least equal to those received by the most senior executives and
no senior executive shall receive any fringe benefit that Employee does not
receive.
(ii) If there is a Change of Control within one (1) year of the termination
of this Agreement without cause by the Company, Employee shall be entitled to
receive the difference between those monies he actually received upon such
termination and 2.99 times Employee's base amount as defined in Section 280G(b)
(3) of the Internal Revenue Code of 1986, as amended (the "Code") (the "Employee
Base Amount").
(iii) Subject to Section 8(f), if Employee's employment is terminated by
the Company without cause or by Employee for good reason during the Term and
coincident with or following a Change of Control, Employee shall be entitled to
a lump sum payment, payable within 10 days after such termination of employment,
equal to the product of (x) 2.99 times (y) the Employee Base Amount.
(iv) For purposes of this Agreement, "Good Reason" shall mean:
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(a) Any breach by the Company of this Agreement; or
(b) The Company's failure to nominate and use its reasonable efforts to
cause Employee to be elected to the Board and/or be retained as a
director during Employee's employment hereunder,
provided that the foregoing events shall not be deemed to constitute Good Reason
unless Employee shall have notified the Board in writing of the occurrence of
such event(s) and the Board shall have failed to have cured or remedied such
event; and
(c) within 20 business days of its receipt of such written notice or which
breach Employer has failed to begin to attempt to cure during said 20 day period
if the breach is not curable during the 20 day period.
(d) Termination by Employee. If Employee terminates his employment with the
Company for any reason (other than for Good Reason) during the Term, Employee
shall be entitled to the same payments he would have received if his employment
had been terminated by the Company for cause.
(e) Change of Control. For purposes of this Agreement, "Change of Control"
shall mean (i) any transaction or series of transactions (including, without
limitation, a tender offer, merger or consolidation) the result of which is that
any "person" or "group" (within the meaning of Sections 13(d) and 14(d)(2) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), becomes
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the "beneficial" owners (as defined in Rule 13 (d) (3) under the Securities
Exchange Act of 1934) of more than 50 percent (50%) of the total aggregate
voting power of all classes of the voting stock of the Company and/or warrants
or options to acquire such voting stock, calculated on a fully diluted basis,
(ii) during any period of two consecutive calendar years, individuals who at the
beginning of such period constituted the Board (together with any new directors
whose election by the Board or whose nomination for election by the Company's
stockholders was approved by a vote of at least two-thirds of the directors then
still in office who either were directors at the beginning of such period or
whose election or nomination for election was previously so approved) cease for
any reason to constitute a majority of the directors then in office, or (iii) a
sale of assets constituting all. or substantially all of the assets of the
Company (determined on a consolidated basis). In the event of such Change of
Control, the new entity shall be obligated to assume the terms and conditions of
this Agreement.
(f) Limitation on Certain Payments.
(i) In the event it is determined pursuant to clause (ii) below, that part
or all of the consideration, compensation or benefits to be paid to Employee
under this Agreement in connection with Employee's termination of employment
following a Change of Control or under any other plan, arrangement or agreement
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in connection therewith, constitutes a "parachute payment" (or payments) under
Section 28OG(b)(2) of the Code, then, of the aggregate present value of such
parachute payments (the "Parachute Amount") exceeds 2.99 times the Employee Base
Amount, the amounts constituting "parachute payments" which would otherwise be
payable to or for the benefit of Employee shall be reduced to the extent
necessary such that the Parachute Amount is equal to 2.99 times the Employee
Base Amount. Employee shall have the right to choose which amounts that would
otherwise be due him but for the limitations described in this paragraph shall
be subject to reduction. Notwithstanding the foregoing, if it is determined that
stockholder approval of the payment of such, compensation and benefits will
reduce the applicability of Section 280G of the Code to such payment, promptly
after request by Employee, Company will undertake reasonable efforts to hold
such a meeting to obtain such approval or to solicit such approval by written
consent, and to obtain such approval.
(ii) Any determination that a payment constitutes a parachute payment and
any calculation described in this Section 8 (f) ("Determination") shall be made
by the independent public accountants for the Company, and may, at Company's
election, be made prior to termination of Employee's employment where Company
determines that a Change in Control, as provided in this Section 8, is imminent.
Such Determination shall be furnished in writing no later than 30 days following
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the date of the Change in Control by the accountants to Employee. If Employee
does not agree with such Determination, he may give notice as provided in
Section 13(j) below within ten days of receipt of the Determination from the
accountants and, within 15 days thereafter, accountants of Employee's choice
must deliver to the Company their Determination that in their judgment complies
with the Code. If the two accountants cannot agree upon the amount to be paid to
Employee pursuant to this Section 8 within ten days of the delivery of the
statement of Employee's accountants to the Company, the two accountants shall
choose a third accountant who shall deliver their determination of the
appropriate amount to be paid to Employee pursuant to this Section 8(f), which
determination shall be final. If the final Determination provides for the
payment of a greater amount than that proposed by the accountants of the
Company, then the Company shall pay all of Employee's costs incurred in
contesting such Determination and all other costs incurred by the Company with
respect to such Determination.
(iii) If the final Determination made pursuant to Clause (ii) of this
Section 8(f) results in a reduction of the payments that would otherwise be paid
to Employee except for the application of Clause (i) of this Section 8(f),
Employee may then elect, in his sole discretion, which and how much of any
particular entitlement shall be eliminated or reduced and shall advise the
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Company in writing of his election within ten days of the final Determination of
the reduction in payments. If no such election is made by Employee within such
ten-day period, the Company may elect which and how much of any entitlement
shall be eliminated or reduced and shall notify Employee promptly of such
election. Within ten days following such Determination and the elections
hereunder, the Company shall pay to or distribute to or for the benefit of
Employee such amounts as are then due to Employee under this Agreement and shall
promptly pay to or distribute to or for the benefit of Employee in the future
such amounts as become due to Employee under this Agreement.
(iv) As a result of the uncertainty in the application of Section 28O(G) of
the Code at the time of a determination hereunder, it is possible that payments
will be made by the Company which should not have been made under clause (i) of
this Section 8(f) ("Overpayment") or that additional payments which are not made
by the Company pursuant to Clause (i) of this Section 8 (f) should have been
made ("Underpayment") In the event that there is a final determination by the
Internal Revenue Service, or a final determination by a court of competent
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jurisdiction, that an overpayment has been made, any such Overpayment shall be
treated for all purposes as a loan to Employee which Employee shall repay to the
Company together with interest at the applicable Federal rate provided for in
Section 7872(f)(2) of the Code. In the event that there is a final determination
by the Internal Revenue Service, a final determination by a court of competent
jurisdiction or a change in the provisions of the Code or regulations pursuant
to which an Underpayment arises under this Agreement, any such Underpayment
shall be promptly paid by the Company to or for the benefit of Employee,
together with interest at the applicable Federal rate provided for in Section
7872(f)(2) of the Code.
9. NON-DISCLOSURE OF INFORMATION. Employee acknowledges that by virtue of
his position he will be privy to the Company's trade secrets including but not
limited to Company's customers list and private processes, as they may exist or,
as Company may determine from time to time, and that such secrets are valuable,
special, and unique assets of Company's business and constitute confidential
information and trade secrets of Employee (hereafter collectively "Confidential
Information") Employee shall not, during the Term and for a period of six (6)
months thereafter, intentionally disclose all or any part of the Confidential
Information to any person, firm, corporation, association or any other entity
for any reason or purpose whatsoever, nor shall Employee and any other person
by, through or with Employee, during the Term and for a period of six (6) months
thereafter, intentionally make use of any of the Confidential Information for
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any purpose or for the benefit of any other person or entity, other than
Company, under any circumstances. For a period of six (6) months after the
termination of this Agreement, Employee shall not intentionally take any action
which in any manner shall be injurious to the Company. Company and Employee
agree that a violation of the foregoing covenants will cause irreparable injury
to the Company, and that in the event of a breach or threatened breach by
Employee of the provisions of this Section, Company shall be entitled to an
injunction restraining Employee from:
(a) Disclosing, in whole or in part, any Confidential Information, or from
rendering any services to any person, firm, corporation, association or other
entity to whom any such information, in whole or in part, has been disclosed or
is threatened to be disclosed in violation of this Agreement.
(b) Continuing such injurious actions. Nothing herein stated shall be
construed as prohibiting the Company from pursuing any other rights and
remedies, at law or in equity, available to the Company for such breach or
threatened breach, including the recovery of damages from the Employee.
10. RESTRICTIVE COVENANT.
(a) For a period of six (6) months after the termination of this Agreement
by Employer without cause and for a period of one (1) year after the termination
of this Agreement by Employer or Employee for any other reason, or expiration of
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this Agreement, Employee covenants and agrees that, within a radius of ten (10)
miles from each of the then present place(s) of Company's business or any other
area in which Company is engaged in business, he shall not own, manage, operate,
control, be employed by, participate in, or be connected in any manner with the
ownership, management, operation, or control, whether directly or indirectly, as
an individual on his own account, or as a partner, member, joint venturer,
officer, director or shareholder of a corporation or other entity, of any
business similar to or competitive with the type of business conducted by
Company at the time of the termination or expiration of this Agreement.
(b) For a period of six (6) months after the termination of this Agreement
by Employer without cause and for a period of one (1) year after the termination
of this Agreement by Employer or Employee for any other reason, or expiration of
this Agreement, Employee further covenants and agrees he shall not interfere
with, solicit or disrupt or attempt to interfere with, solicit or disrupt the
relationship, contractual or otherwise, between Company and any customer,
supplier, lessee or employee of Company, its parent or subsidiaries.
(c) Employee acknowledges that the restrictions contained in this Paragraph
10 are reasonable. In that regard, it is the intention of the parties to this
Agreement that the provisions of this Paragraph 8 shall be enforced to the
fullest extent permissible under the law and public policy applied in each
Jurisdiction in which enforcement is sought. Accordingly, if any portion of this
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Paragraph 10 shall be adjudicated or deemed to be invalid or unenforceable, the
remaining portions shall remain in full force and effect, and such invalid or
unenforceable portion shall be limited to the particular jurisdiction in which
such adjudication is made.
11. BREACH OR THREATENED BREACH OF COVENANTS. In the event of Employee's
actual or threatened breach of his obligations under either Paragraph 9 or 10,
or both, of this Agreement, or Company's breach or threatened breach of it's
obligations under this Agreement, in addition to any other remedies either party
may have, such party shall be entitled to obtain a temporary restraining order
and a preliminary and/or permanent injunction restraining the other from
violating these provisions. Nothing in this Agreement shall be construed to
prohibit Company or Employee, as the case may be, from pursuing and obtaining
any other available remedies which Company or Employee, as the case may be, may
have for such breach or threatened breach, whether at law or in equity,
including the recovery of damages from the other.
12. REPRESENTATIONS AND WARRANTIES BY EMPLOYEE. Employee hereby warrants
and represents that he is not subject to or a party to any restrictive covenants
or other agreements that in any way preclude, restrict, restrain or limit him
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(a) from being an Employee of Company, (b) from engaging in the business of
Company in any capacity, directly or indirectly, and from competing with any
other persons, companies, businesses or entities engaged in the business of
Company.
13. ARBITRATION. Any controversy or claim arising out of or relating to
this Agreement, the performance thereof or its breach or threatened breach shall
be settled by arbitration in the State of New York, County of New York in
accordance with the then governing rules of the American Arbitration
Association. The finding of the arbitration panel or arbitrator shall be final
and binding upon the parties. Judgment upon any arbitration award rendered may
be entered and enforced in any court of competent jurisdiction. In no event may
the arbitration determination change Employee's compensation, title, duties or
responsibilities, the entity to whom Employee reports or the principal place
where Employee is to render his services.
14. NOTICES. Any notice required, permitted or desired to be given under
this Agreement shall be sufficient if it is in writing and (a) personally
delivered to Employee or an authorized member of Company, (b) sent by overnight
delivery, or (c) sent by registered or certified mail, return receipt requested,
to Employer's or Employee's address as provided in this Agreement or to a
different address designated in writing by either party. Notice is deemed given
on the day it is delivered personally or by overnight delivery, or five (5)
business days after it is received, if transmitted by the United States Post
Office.
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15. ASSIGNMENT. Employee acknowledges that his services are unique and
personal. Accordingly, Employee may not assign his(her) rights or delegate
his(her) duties or obligations under this Agreement. Company's rights and
obligations under this Agreement shall inure to the benefit of and shall be
binding upon the Company's successors and assigns. Company has the absolute
right to assign it's rights and benefits under the terms of this Agreement.
16. WAIVER OF BREACH. Any waiver of a breach of a provision of this
Agreement, or any delay or failure to exercise a right under a provision of this
Agreement, by either party, shall not operate or be construed as a waiver of
that or any other subsequent breach or right.
17. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the
parties. It may not be changed orally but only by an agreement in writing which
is signed by the parties. The parties hereto agree that any existing employment
agreement between them shall terminate as of the date of this Agreement.
18. GOVERNING LAW. This Agreement shall be construed in accordance with and
governed by the internal laws of the State of New York.
19. SEVERABILITY. The invalidity or non-enforceability of any provision of
this Agreement or application thereof shall not affect the remaining valid and
enforceable provisions of this Agreement or application thereof.
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20. CAPTIONS. Captions in this Agreement are inserted only as a matter of
convenience and reference and shall not be used to interpret or construe any
provisions of this Agreement.
21. GRAMMATICAL USAGE. In construing or interpreting this Agreement,
masculine usage shall be substituted for those feminine in form and vice versa,
and plural usage shall be substituted or singular and vice versa, in any place
in which the context so requires.
22. CAPACITY. Employee has read and is familiar with all of the terms and
conditions of this Agreement and has the capacity to understand such terms
conditions hereof. By executing this Agreement, Employee agrees to be bound by
this Agreement and the terms and conditions hereof.
23. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same Agreement.
24. LEGAL FEES. Company agrees to reimburse Employee for any and all legal
expenses incurred by Employee in connection with the negotiation and execution
of this Agreement.
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IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
as of the date first hereinabove written.
EVERGOOD PRODUCTS CORPORATION
By: /s/Xxx Xxxx
------------------------
Its President - Xxx Xxxx
Employee:
/s/Xxxxxxxxx Xxxx
------------------------
Xxxxxxxxx Xxxx
