EMPLOYMENT AGREEMENT
EXHIBIT
10.68
THIS
EMPLOYMENT AGREEMENT (the “Agreement”), executed on May 11, 2007 (the “Execution
Date”), but effective as of May 1, 2007 (the “Effective Date”), is entered into
by and between XXXXXXX XXXXXXX, having an address at 0000 Xxxxxxxxx Xx.,
Xxxxxxx, Xxxxx 00000 (“Employee”), and TEKOIL & GAS CORPORATION, a Delaware
Corporation (“Company”).
R
E C I T A L S:
WHEREAS,
the Employee is being hired as of the date hereof by the Company to serve as
the
Vice President of Operations; and
WHEREAS,
no formal document exists governing the relationship between the Company and
the
Employee, and the Company and Employee desire by the execution of this Agreement
to create a document memorializing the terms and conditions of the Employee’s
service with the Company; and
WHEREAS,
the Company has granted Employee, effective as of the time periods set forth
herein, Two Hundred Fifty Thousand (250,000) shares of the Company’s Common
Stock, par value $.000001, (the “Issued Stock”) as additional consideration for
services hereunder.
NOW,
THEREFORE, in consideration of the mutual agreements hereinafter set forth,
Employee and the Company have agreed and do hereby agree as
follows:
A
G R E E M E N T:
1. Duties.
The
Company hereby agrees employ and engage Employee as Vice President of
Operations, and Employee hereby accepts and agrees to such hiring, engagement,
and employment. Employee agrees to perform any and all duties and to assume
any
and all responsibilities that may be assigned to him from time to time by the
or
Board of Directors of the Company or officers of the Company, or as may be
required by the Bylaws, Articles of Incorporation or other governing document
of
the Company. During the duration of his employment, Employee will devote his
full time, energy, and skill to the performance of his duties for the Company
and for the benefit of the Company. Employee shall render such services to
the
Company and perform his duties
at
such place or places in as the Company shall require in accordance with its
best
interests, needs, business and opportunities. Employee
will also exercise due diligence and care in the performance of Employee’s
duties to the Company under this Agreement. During
the term hereof, Employee shall not enter into the services of or be employed
in
any capacity or for any purposes whatsoever, whether directly or indirectly,
by
any person, firm, corporation or entity other than Company, and will not, during
said period of time, be engaged in any business, enterprise or undertaking
other
than employment by the Company.
2. Employment
Period.
Employee’s employment with the Company shall be for an initial term of three (3)
years (the “Initial Term”), and shall be deemed to have commenced on the
Effective Date, and shall continue thereafter until ended in accordance with
this Agreement. After the Initial Term, Employee’s employment will be “at will,”
meaning that either Employee or the Company will be entitled to terminate the
employment at any time and for any reason, with or without cause prior to the
expiration of this Agreement. Any contrary representations which may have been
made to Employee are superseded by this Agreement. The “at will” nature of the
employment after the Initial Term may only be changed in an express written
agreement signed by Employee and a duly authorized officer of the
Company.
3. Compensation.
(a) Base
Salary.
The
Company shall pay Employee, and Employee agrees to accept from the Company
in
full payment for Employee’s services and promises to the Company (specifically
including the covenants set forth in Sections 5 and 9), a base salary at an
annual rate of One
Hundred Eighty Thousand and 00/100 Dollars ($180,000)
during
the duration of Employee’s employment
(“Base
Salary”), payable in equal bi-monthly installments or
otherwise in accordance with the Company’s normal pay practices as the same may
be altered from time to time by Company.
(b) Bonus.
At the
sole and absolute discretion of the Board of Directors, and subject to the
satisfaction of such conditions or performance criteria as may be established
from time to time at the sole discretion of the Board of Directors, Employee
may, from time to time, receive an additional bonus. This bonus may consist
of,
without limitation, either equity interests in the Company or cash.
(c) Withholding
Taxes.
All
forms of compensation paid or payable to Employee whether set forth in this
Agreement or otherwise are subject to reduction to reflect applicable
withholding and payroll taxes.
(d) Issued
Stock. As
compensation hereunder, the Employee shall receive the Issued Stock, which
shall
be governed and controlled by the terms and conditions set forth herein. The
Issued Stock shall be issued as follows: (i) Eighty Three Thousand (83,000)
shares issued as of the date hereof, (ii) Eighty Three Thousand (83,000) shares
issued on the one year anniversary of this Agreement, and (iii) Eighty Four
Thousand (84,000) shares issued on the second yearly anniversary of this
Agreement. Employee recognizes, acknowledges and agrees that all of the Issued
Stock shall remain restricted for the minimum periods required by any and all
applicable laws, regulations and rules.
(e) Vacation.
Employee shall be entitled to vacation on the terms and subject to the
conditions established by the Board of Directors of the Company.
(f) Health
Care Reimbursement. Until
the
Company institutes its own employee health care plan, at which point Employee
shall pay for his own health care premiums if Employee decides to participate
in
the Company’s employee health care plan,
Employee
shall be responsible for the payment of his own health care
benefits..
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4. Resignation;
Termination for Cause; Other Terminations.
(a) Termination
for Cause.
The
Company may terminate Employee’s employment at any time for cause (as defined
below) with thirty (30) days written notice and opportunity to cure the
violation. Such opportunity to cure will only be available if the violation
is
contained in one of the following paragraphs (contained below in this Subsection
4(a)): (iv), (x) (xii). If Employee’s employment is terminated pursuant to this
Subsection 4(a), all of Employee’s rights, all of the Company’s obligations
hereunder shall immediately terminate, and the Issued Stock will be subject
to
the Option to Repurchase as set forth below. As used in this section, “for
cause” shall mean any of the following:
(i) Willfully
damaging the Company’s property, business, reputation or goodwill;
(ii) Committing
a felony;
(iii) Death,
theft, dishonesty, fraud or embezzlement;
(iv) Using
alcohol, narcotics or other controlled substances to the extent that it prevents
the Employee from efficiently performing services for the Company;
(v) Willfully
injuring any other employee of the Company;
(vi) Willfully
injuring any person in the course of performance of services for the
Company;
(vii) Disclosing
to a competitor or other unauthorized persons confidential or proprietary
information or secrets of the Company;
(viii) Soliciting
business on behalf of a competitor or a potential competitor;
(ix) Sexually
harassing any other employee of the Company or committing any act which
otherwise creates an offensive work environment for other employees of the
Company;
(x) Failing
to comply with any provision of the Company’s policy manual as it applies to
Employee;
(xi) The
Company ceases business operations on the Masters Properties; or
(xii) Breaching
this Agreement.
The
Company shall not be limited to termination as a remedy for any improper or
illegal act of Employee, but may also seek damages, injunction or such other
remedy as it may deem appropriate under the circumstances. This shall include
without limitation the option by the Company, in its sole and absolute
discretion, to repurchase the Issued Stock, in whole or in part, for an amount
of $.01 per share (the “Option to Repurchase”), immediately
upon the termination of the Employee’s employment with the Company for cause, or
the Employee’s resignation. Upon the termination of the Employee for cause,
Employee’s obligations and the Company’s rights under Sections 5, 6, 7, 8, 9, 10
and 11 shall survive the termination of this Agreement for a period of one
(1)
year.
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(b) Termination
Without Cause.
The
Company may terminate Employee’s employment at any time without cause pursuant
to written notice provided to Employee not less than thirty (30) days in advance
of such termination date. If Employee’s employment is terminated pursuant to
this Section 4(b), all of Employee’s rights and all of the Company’s obligations
hereunder shall immediately terminate and the Company, in its sole and absolute
discretion, shall be entitled to exercise its Option to Repurchase; provided,
however, that the Issued Stock subject to the Option to Repurchase shall be
reduced by 1/36 for each month of Employee’s completed employment with the
Company, beginning the date hereof and continuing hereafter. Notwithstanding
a
termination of this Agreement pursuant to this Section 4(b), Employee’s
obligations and the Company’s rights under Sections 5, 6, 7, 8, 9, 10 and 11
shall survive the termination of this Agreement for a period of one (1) year.
5. Nonsolicitation;
Noncompetition.
(a) Employee
agrees that he will not at any time during the Employee’s employment or the
Restriction Period (“Restriction Period” shall mean the one (1) year subsequent
to the end of Employee’s employment by the Company for any reason, which ending
of employment shall be referred to as the “Termination Date”), whether
voluntarily or involuntarily, directly or indirectly for himself or any other
person or entity solicit, interfere with or endeavor to entice away from Company
or any of its affiliates any other employee of Company or any of its affiliates.
Additionally, Employee agrees that during the Restriction Period any employment
by Employee or any entity in which he has an interest, directly or indirectly
(other than a publicly traded company in which he has less than a 1% interest)
of any person who was in the employ of the Company or any of its affiliates
within the preceding year, shall be a violation of this paragraph. For the
purposes of this Agreement indirect interests shall include interests held
by
Employee’s family members or any partner in a partnership, limited liability
company or other entity in which he has a 10% or greater ownership
interest.
(b) Employee
further agrees that he will not at any time during the Restriction
Period,
whether
voluntarily or involuntarily, directly
or
indirectly, for himself or any other person or entity:
(i) Engage,
directly or indirectly (either as an employee, officer, director, partner,
shareholder, consultant or independent contractor), in any business
substantially similar to that carried on by the Company, or any of its
affiliates, or in providing services or products or offering to provide products
or services of the kind provided by the Company or any of its affiliates as
of
the Termination Date within those areas in the United States, US Territories,
Canada, Mexico, Central America and the Caribbean (the “Non-Competition Area”)
which the Company or any of its affiliates is doing business as of the
Termination Date or in which, at the time of the Termination Date, the Company
or any of its affiliates contemplates doing business, or, for those customers
of
the Company or any of its affiliates for whom the Company or any of its
affiliates: (A) is engaged in providing services or products as of the
Termination Date, or (B) has either provided services or products within the
twenty four month (24) period prior to the Termination Date, or (C) has
contacted at any time during the twelve (12) months prior to the Termination
Date, for the purpose of offering to provide services or products (all of which
are hereinafter referred to as the “Clients”);
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(ii) Solicit
or attempt to solicit those Clients for the purposes of providing or offering
to
provide any services or products of a type which the Company or any of its
affiliates provides or contemplates providing as of the Termination Date, on
behalf of those Clients, whether directly or through any other persons,
partnerships, corporations, companies or other entities; or
(iii) Take
any
other action which would impair the value of the business or assets of the
Company or any of its affiliates, including, without limitation, any action
which would tend to disparage or diminish the reputation of the Company or
any
of its affiliates.
(c) If
in any
judicial proceeding, a court shall refuse to enforce this Agreement, whether
because the time limit is too long or because the restrictions contained herein
are more extensive (whether as to geographic area, scope of business or
otherwise) than is necessary to protect the business and goodwill of the
Company, it is expressly understood and agreed between the parties hereto that
this Agreement is deemed modified to the extent necessary to permit this
Agreement to be enforced in any such proceedings.
(d) If
the
Company or its successors in interest shall make application to a court of
competent jurisdiction for injunctive relief, then the Restriction Period
specified herein shall be tolled from the time of application for injunctive
relief until the date of final adjudication of the claim for injunctive relief.
Additionally, Employee waives, to the greatest extent permissible, any
requirement that the Company post bond or other security as a precondition
to an
injunction, whether temporary or permanent.
(e) Employee
agrees that compliance with this Section is necessary to protect the goodwill
and other proprietary interests of the Company and that a breach of this
paragraph will give rise to irreparable and continuing injury to the Company
which is not adequately compensable in monetary damages or at law. Accordingly,
Employee agrees that the Company, its successors and assigns may obtain
injunctive relief against the breach or threatened breach of the foregoing
provisions, in addition to any other legal remedies which may be available
to it
under this Agreement. Employee further acknowledges that in the event of his
termination or expiration of employment with the Company, his knowledge,
experience and capabilities are such that Employee can obtain employment in
business activities which are of a different or noncompeting nature than those
performed in the course of employment with the Company; and that the enforcement
of a remedy hereunder by way of injunction will not prevent Employee from
earning a reasonable livelihood.
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6. Accounting
for Profits.
Employee covenants and agrees that if he violates the provisions of Sections
5,
7, 8, 9, 10 or 11 the Company shall be entitled to an accounting and repayment
of all profits, compensation, commissions, remuneration or other benefits that
Employee has realized and/or may realize as a result of or in connection with
any such violation. These remedies shall be in addition and not in limitation
of
any injunctive relief or other rights or remedies to which the Company is or
may
be entitled at law, in equity or under this Agreement.
7. Assignment
of Proprietary Information.
Except
as may be required in the course of employment by the Company, Employee agrees
that any and all proprietary information, as hereinafter defined, which Employee
has made, conceived of, developed or originated, either individually or jointly
with any other person or persons at any time during the period of employment
by
the Company, or during a period of five (5) years after termination or
expiration of said employment, whether during working hours or any other time,
which relate in any way to the business or the type of business now or hereafter
engaged in or contemplated by the Company during the period of Employee’s
employment or which result from or may be suggested by any work Employee does
for the Company or at the Company’s request, shall be the property of the
Company. As used herein, “Proprietary Information” shall mean any and all
proprietary property including but not limited to all techniques, processes,
devices, charts, manuals, payroll, and improvements thereto together with the
names and identities of all clients and prospective clients, price lists,
suppliers and all other information or materials which the Company may from
time
to time designate and treat as confidential and proprietary or as a trade
secret.
Employee
shall promptly disclose and assign such Proprietary Information to the Company’s
representatives and do all such acts, and execute and deliver all such
documents, as may be necessary to vest in the Company the title to all such
Proprietary Information and enable the Company to properly prepare and prosecute
any and all applications for patents, trademarks or copyrights thereon as well
as all reissues, renewals and extensions thereof, so that the Company shall
be
the sole and absolute owner of all right, title and interest in said proprietary
property. It is understood and agreed that the words “which relate in any way to
the business or the type of business now or hereafter carried on or contemplated
by the Company” shall properly cover any reasonable development or extension of
the Company’s field of operation. These obligations shall continue beyond the
termination or expiration of Employee’s employment with respect to inventions,
discoveries and developments conceived or made by Employee during the period
of
employment and shall be binding on Employee’s assigns, executors, heirs,
administrators and other legal representatives. Employee agrees that all
correspondence, drawings, reports, ideas, blueprints, manuals, letters, notes,
analyses, notebooks, reports, charts, programs, proposals or any other documents
concerning the Company’s customers or products or processes, whether or not
prepared by and in the course of employment, alone or in conjunction with
others, is the property of the Company and upon termination or expiration of
employment for any reason, Employee shall promptly return to the Company any
such documents in his possession, custody or control.
8. Information
and Testimony.
Employee will, without expense to himself, give such true information and
testimony under oath if requested, as may be requested of his by the Company
relative to any Proprietary Information that is subject to disclosure to the
Company under the terms hereof.
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9. Proprietary
Information.
Employee agrees that he will not at any time during or after the termination
or
expiration of his employment, except as authorized or directed in writing by
the
Company, use for Employee’s own benefit, copy, reveal, divulge or make known in
any manner to any person, firm or the Company the contents of any methods,
inventions, systems, processes, concepts, techniques, and devices related to
such matters used or developed by the Company, whether or not owned by the
Company, or the methods, processes or manner of the creation and sale of
products or services provided by, sold or leased by the Company, all sometimes
referred to as “trade secrets,” as defined below.
Employee
further agrees that he will not at any time during or after the termination
or
expiration of said employment, except as authorized or directed in writing
by
the Company, sell, exchange or give away or otherwise dispose of any methods,
inventions, systems, processes, concepts, techniques and devices related to
the
business now or hereafter owned and operated by the Company, whether the same
shall or may have been originated, discovered or otherwise created by Employee.
Employee further agrees not to reveal, divulge or make known to any person,
firm
or the Company the name of any of the Company’s clients, price lists, suppliers
or any secret, trade secret or other Proprietary Information whatsoever in
connection with the Company, its business or its clients or anything pertaining
thereto.
Employee
understands that if, either during employment or thereafter, he discloses to
others, uses for his own benefit or for the benefit of any person or entity
other than the Company, copies or makes notes of any such trade secrets,
information or facilities, such conduct will constitute a breach of the
confidence and trust bestowed upon Employee by the Company and will be a breach
of this Agreement.
“Trade
Secret” shall mean the whole or any portion of any formula, pattern, device,
combination of devices, or compilation of information which is for use, or
is
used in the operation of the Company’s business and which provides the business
an advantage, or an opportunity to obtain an advantage, over those who do not
know or use it. Trade Secret includes any scientific, technical or commercial
information, including any design, process, procedure, list of suppliers, list
of customers, business code, sales or installation technique, or improvement
thereof. For purposes of interpretation hereunder the following shall
apply:
Irrespective
of novelty, invention, patentability, the state of the prior art, and the level
of skill in the business, art, or field to which the subject matter pertains,
when the owner thereof takes measures to prevent it from becoming available
to
persons other than those selected by the owner to have access thereto for
limited purposes, a trade secret is considered to be secret, of value, for
use
or in use by the business, and of advantage to the business, or providing an
opportunity to obtain an advantage, over those who do not know or use
it.
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In
addition, a “Trade Secret” shall include information (not readily compiled from
publicly available sources) which has been made available to Employee during
the
course of his employment, including but not limited to the names, addresses,
telephone number, qualifications, education, accomplishments, experience and
resumes of all persons who have applied or been recruited for employment, for
either or both permanent and temporary jobs, job order specifications and the
particular characteristics and requirements of persons generally hired by the
Company, as well as specific job listings from companies with whom the Company
does, or attempts to do business, as well as mailing lists, computer runoffs,
financial or other information not generally available to others, and all
information defined as a trade secret by applicable Florida law.
Employee
further agrees that he is under no obligation to any former company which is
in
any way inconsistent with this Agreement or which imposes any restriction on
behalf of the Company. The Employee also acknowledges that he has been
instructed that during the term of employment by the Company, he is not to
divulge to the Company, its employees or its consultants any confidential
information obtained from any previous employers or any other
person.
10. Return
of Records.
On
termination of employment, Employee shall deliver all records, notes, data,
memoranda, models, and equipment of any nature that are in Employee’s possession
or under his control and that are the property of the Company or relate to
the
employment or to the business of the Company.
11. No
Slander.
Employee agrees not to in any way slander or injure the business reputation
or
goodwill of the Company, including, by way of illustration, through any contact
with Clients, prospective clients, vendors, suppliers, employees or agents
of
the Company which could slander or injure the business reputation or goodwill
of
the Company.
12. Waiver
or Modification.
No
waiver or modification of this Agreement or of any covenant, condition, or
limitation herein contained shall be valid unless in writing and duly executed
by the party to be charged therewith. Furthermore, no evidence of any
modification or waiver shall be offered or received as evidence in any
proceeding, arbitration or litigation between the parties arising out of or
affecting this Agreement or the rights or obligations of any party hereunder,
unless such waiver or modification is in writing, duly executed as aforesaid.
The provisions of this paragraph may not be waived except as herein set
forth.
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13. Issued
Stock; Transferability.
Notwithstanding anything to the contrary in this Agreement, the Issued Stock
and
the rights and privileges conferred in whole or in part hereby may not be
transferred, assigned, pledged or hypothecated in any way (whether by operation
of law or otherwise), and the Company shall have no obligation to transfer
such
shares, unless registered under the Securities Act of 1933, as amended (the
“Act”) or, in the opinion of counsel to the Company, such
transaction is in compliance with or exempt from the registration and prospectus
requirements of the Act. The Employee shall pay all costs incurred by the
Company in such a transaction, including but not limited to legal fees and
costs. The Issued Stock shall not be subject to levy and execution, attachment
or similar process. Upon any attempt to transfer, assign, pledge, hypothecate
or
otherwise dispose of the Issued Stock, or any right or privilege conferred
hereby, contrary to the provisions of this Agreement, or upon the levy or
execution, attachment or similar process on the Issued stock or the rights
and
privileges conferred under this Agreement, the Company shall have the right
to
buy back the Issued Stock, in whole or in part, in the manner described in
Section 6.
Each
certificate or other documentation evidencing the ownership of any shares of
Issued Stock to be imprinted with a legend in substantially the following
form:
THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT
OF 1933, AS AMENDED. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY
NOT BE REOFFERED, SOLD, TRANSFERRED, PLEDGED, OR ASSIGNED IN THE ABSENCE OF
(A)
AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER SAID ACT AND THE
STATE SECURITIES ACT OR BLUE SKY ACT OF ANY STATE HAVING JURISDICTION THEREOF,
OR (B) AN OPINION OF COUNSEL, REASONABLY SATISFACTORY IN FORM, SCOPE AND
SUBSTANCE TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT
OR
THE SECURITIES ACT OR BLUE SKY ACT OF ANY STATE HAVING JURISDICTION WITH RESPECT
THERETO. ADDITIONALLY, THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO AN
OPTION TO REPURCHASE IN FAVOR OF THE COMPANY AS DESCRIBED IN THAT CERTAIN
EMPLOYMENT AGREEMENT DATED MAY 1, 2007.
The
certificate may also bear additional inscriptions that the Company, in its
sole
and absolute discretion, otherwise deems are required by federal, state, foreign
or local securities laws. All shares of Issued Stock shall be subject to such
stop-transfer orders and other restrictions as the Company may deem advisable
under the rules, regulations, and other requirements of the Securities and
Exchange Commission, any stock exchange upon which the Common Stock is then
listed, and any applicable federal or state securities law, and the Company
may
cause a legend or legends to be put on any certificates evidencing such shares
to make appropriate reference to such restrictions.
14. Restrictions
on the Issued Stock.
The
Issued Stock is subject to all restrictions in this Agreement. By acceptance
of
the Issued Stock, the Employee agrees that the Issued Stock will be held for
investment and will not be held with a view to their distribution, as that
term
is used in the Act, unless in the opinion of counsel to the Company, such
distribution is in compliance with or exempt from the registration and
prospectus requirements of that Act. As a condition of this Agreement, the
Company may require the Employee to confirm any factual matters reasonably
requested by counsel for the Company.
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THE
EMPLOYEE UNDERSTANDS THAT THE ISSUED STOCK WILL NOT BE REGISTERED AT THE TIME
THIS AGREEMENT UNDER THE SECURITIES ACT. THE EMPLOYEE REPRESENTS THAT IT IS
EXPERIENCED IN EVALUATING COMPANIES SUCH AS THE COMPANY, HAS SUCH KNOWLEDGE
AND
EXPERIENCE IN FINANCIAL AND BUSINESS MATTERS AS TO BE CAPABLE OF EVALUATING
THE
MERITS AND RISKS OF ITS INVESTMENT, AND HAS THE ABILITY TO SUFFER THE TOTAL
LOSS
OF THE INVESTMENT. THE EMPLOYEE FURTHER REPRESENTS THAT IT HAS HAD THE
OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVE ANSWERS FROM THE COMPANY CONCERNING
THE TERMS AND CONDITIONS OF THE ISSUED STOCK, THE COMMON STOCK, AND THE BUSINESS
OF THE COMPANY, AND TO OBTAIN ADDITIONAL INFORMATION TO SUCH EMPLOYEE’S
SATISFACTION. THE EMPLOYEE FURTHER REPRESENTS THAT IT IS AN “ACCREDITED
INVESTOR” WITHIN THE MEANING OF REGULATION D UNDER THE SECURITIES ACT, AS
PRESENTLY IN EFFECT.
15. Choice
of Law; Waiver of Jury Trial.
This
Agreement and the performance hereunder and all suits and special proceedings
hereunder shall be construed in accordance with the laws of the State of
Florida. In any action, special proceeding or other proceeding that may be
brought arising out of, in connection with, or by reason of this Agreement,
the
laws of the State of Florida shall be applicable and shall govern to the
exclusion of the law of any other forum, without regard to the jurisdiction
in
which the action or special proceeding may be instituted. All actions under
this
Agreement shall be taken in a court of competent jurisdiction within the county
in the State of Florida in which the Company’s principal place of business is
located and Employee hereby waives and agrees that he shall not assert that
such
forum is inconvenient. EACH PARTY HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHTS
IT MAY HAVE TO DEMAND A TRIAL BY JURY FOR ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR THE RELATIONSHIP
OF
THE PARTIES. THIS WAIVER EXTENDS TO ANY AND ALL RIGHTS TO DEMAND A TRIAL BY
JURY
ARISING FROM ANY SOURCE, INCLUDING BUT NOT LIMITED TO THE CONSTITUTION OF THE
UNITED STATES, THE CONSTITUTION OF ANY STATE, COMMON LAW OR ANY APPLICABLE
STATUTE OR REGULATION. EACH PARTY HEREBY ACKNOWLEDGES THAT IT IS KNOWINGLY
AND
VOLUNTARILY WAIVING THE RIGHT TO DEMAND TRIAL BY JURY.
16. Binding
Effect of Agreement.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, successors, assigns and legal
representatives.
17. Invalid
Provision.
The
invalidity or unenforceability of a particular provision of this Agreement
shall
not effect the other provisions hereto, and this Agreement shall be construed
in
all respects as if such invalid or unenforceable provisions were
omitted.
18. Costs
of Enforcement.
In the
event either party initiates action to enforce his or its rights hereunder,
the
substantially prevailing party shall recover from the substantially
non-prevailing party its reasonable expenses, court costs, including taxed
and
untaxed costs, and reasonable attorneys’ fees, whether suit be brought or not
(jointly referred as to “Expenses”). As used herein, Expenses include expenses
incurred in any appellate or bankruptcy proceeding. All such Expenses shall
bear
interest at the highest rate allowable under the laws of the State of Florida
from the date the substantially prevailing party pays such Expenses until the
date the substantially non-prevailing party repays such Expenses. Expenses
incurred in enforcing this paragraph shall be covered by this paragraph. For
this purpose, the court is requested by the parties to award actual costs and
attorneys’ fees incurred by the substantially prevailing party, it being the
intention of the parties that the substantially prevailing party be completely
reimbursed for all such costs and fees. The parties request that inquiry by
the
court as to the fees and costs shall be limited to a review of whether the
fees
charged and hourly rates for such fees are consistent with the fees and hourly
rates routinely charged by the attorneys for the substantially prevailing
party.
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19. Assignment.
This
Agreement shall be construed as a contract for personal services by Employee
to
the Company and shall not be assignable by Employee. This Agreement may be
assigned by the Company.
20. Strict
Construction.
This
Agreement was the joint, negotiated product of the parties. Therefore, neither
party shall advance a position that any provision hereof should be more strictly
construed against the other party on the basis that such other party prepared
such provision.
21. Cumulative
Rights.
Unless
otherwise provided herein, all rights, powers and privileges conferred upon
the
parties by law, this Agreement or otherwise shall be cumulative.
22. Waiver.
No
failure of any party to exercise any power given such party hereunder or to
insist upon strict compliance by any party with its obligations hereunder,
and
no custom or practice of the parties in variance with the terms hereof shall
constitute a waiver of the parties’ right to demand exact compliance with the
terms hereof.
23. Survival.
The
provisions of this Agreement shall continue and survive the closing hereof
unless or until there is a completion and fulfillment of all the conditions,
covenants and warranties herein.
24. Time.
Time is
of the essence of this Agreement.
25. Notices.
All
notices, requests, demands and other communications required or permitted
hereunder shall be in writing and shall be deemed to have been duly given when
delivered by hand or when mailed by certified registered mail, return receipt
requested, with postage prepaid to their current address or to such other
address as they request in writing.
26. Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original, but all of which shall constitute the same
instrument.
27. Singular/Plural
Feminine/Masculine, Successors or Assigns.
All
references as used herein shall include male and female, singular and plural,
and successors or assigns in the use of a corporation, partnership, individual
or entity in any place or places herein in which the context may require or
permit such substitution, substitutions or designations.
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28. Complete
Agreement.
This
written Agreement contains the sole and entire agreement between the parties
as
to the matters contained herein, and supersedes any and all other agreements
between them. The parties acknowledge and agree that neither of them has made
any representation with respect to such matters of this Agreement or any
representations except as are specifically set forth herein, and each party
acknowledges that he or it has relied on his or its own judgment in entering
into this Agreement. The parties further acknowledge that statements or
representations that may have been heretofore made by either of them to the
other are void and of no effect and that neither of them has relied thereon
in
connection with his or its dealing with the other.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
set forth above.
| “EMPLOYER” | |
| TEKOIL & GAS CORPORATION | |
|
By:
|
/s/
Xxxx X. Western
|
|
Print
Name: Xxxx X. Western
|
|
|
Title:
|
Chief
Executive Officer and
|
|
Chairman
of the Board of Directors
|
|
| “EMPLOYEE” | |
|
/s/
Xxxxxxx Xxxxxxx
|
|
| Xxxxxxx Xxxxxxx | |
12
