Employment Agreement - EnerTeck Chemical Corporation and V. Xxxxxxx Xxxxxxx
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EMPLOYMENT AGREEMENT
Between
ENERTECK CHEMICAL COMPANY
And
[- XXXXXX XXXXXXX XXXXXXX
This Employment Agreement (the "Agreement") is made and entered into to
be effective the 1st day of August, 2003 (The Effective Date) by and between
EnerTeck Chemical Corporation, a Texas corporation, (the "Company") and V.
Xxxxxxx Xxxxxxx ("Employee").
WITNESSETH:
WHEREAS, Employee is an experienced professional and because of whose
educational background, skill and expertise in the field of manufacturing,
marketing, business development, engineering, management and the like and which
skill and expertise would be valuable to the Company,
WHEREAS, the Company desires to employ the Employee and the Employee
desires to be employed by the Company; and
WHEREAS, Employee and the Company desire to set forth the terms and
conditions of Employee's employment with the Company.
NOW, THEREFORE, and in consideration of the premises and of the full
and faithful performance of the respective agreements herein contained, the
parties hereto do mutually covenant and agree with each other as follows:
1. Employment. The Company agrees to employ Employee as Executive
Vice President and Employee accepts such employment upon the terms and
conditions hereinafter set forth. The Employee shall report directly to the
President or COO.
2. Term. The term of this Agreement shall be for a period of
thirty-six (36) months from the Effective Date (August 1, 2003).
3. Compensation
(a) In the interim period between the Effective Date of this
Agreement and such time that the Company generates sufficient
cash flow to support executive compensation for its
executives, the Company agrees to pay Employee a wage of
seventy-two thousand ($72,000) per annum.
(b) If and when the Company generates sufficient cash flow to
pay executive compensation to its executives as determined
solely by the Board of Directors, then the Employee's minimum
annual base salary shall be increased to $125,000 per year,
payable in equal bi-weekly payments on the regular paydays of
the Company for the remainder of this Agreement.
(c) Stock Options. The Company will create an Employee Stock
Option Plan during the three (3) year term of this Agreement
and in addition to
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the provisions in items 3(a) and 3(b) above, the Employee will
be granted options to purchase common shares of Company stock
consistent with said Company Employee Stock Option Plan.
(d)Benefits. In addition to the items 3(a) - (c), Employee
shall be entitled to participate in any group employee benefit
program of the Company, including medical insurance and 401(k)
programs, if the Company creates and institutes any such plan
in its sole discretion.
(e)Vacations. Employee shall also be entitled to four (4)
weeks vacation time during each calendar year. The dates of
vacation time are subject to Company approval.
4. Duties. During the term of this Agreement, Employee shall serve the
Company in the position of Executive Vice President of Business Development and
shall perform such duties as is consistent with that position, and as may be
delegated or assigned to him from time to time by the Company.
5. Extent of Services. The Employee shall devote his full ability,
attention and energy to the Company's business during the term of this Agreement
and the necessary time required to conduct the Company's business.
6. Expenses. Employee is authorized to incur reasonable expenses in
promoting the business of the Company and will be reimbursed by the Company for
approved expenses in accordance with the Company's normal practice upon
submission of required documentation.
0.Xxxxxx: The Company and the Employee agree that the Employee, if the
Employee's principal residence is in a city other than Houston, Texas, the
Employee, at the Employee's option, may choose to office at a location other
than the Company's designated office location, and that the Company shall not be
obligated to compensate or reimburse Employee for any travel or office expenses
(including rent) which arise from the Employee's decision to office in a
location other than the Company designated office location.
8. Termination. This Agreement may be terminated in accordance with any
one of the following provisions:
(a) Voluntary. Employee may terminate this Agreement at any time
during the term of this Agreement by giving thirty (30) days
written notice of termination to the Company
(b) Death and Disability. If Employee should die or become 100%
physically disabled to work or perform his duties, the salary
due at that time shall continue for a period of three months
time and any unvested portions of all stock options shall vest
in full.
9. Severance. The Company can terminate this Agreement by giving
Employee thirty (30) days written notice, but only in the event the Employee's
conduct constitutes gross misfeasance, nonfeasance, and/or malfeasance. This
termination notification will only be issued after consideration by and approval
of the Board of Directors.
10. Non-Competition and Confidentiality Agreement
(a) Purpose: In connection with the limited protection
afforded the Company by the covenants contained in
this Paragraph, Employee
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recognizes and acknowledges that the Company's need
for the following covenants is base upon: (i) The
Company has expended and will expend substantial
time, money and effort in developing concepts,
products and technology in its lines of business and
valuable lists of customers and information relating
to its business requirements, needs, patterns and
procedures; (ii) Employee in the course of
employment, will be entrusted with and exposed to the
Company's trade secrets and other proprietary and
confidential information; (iii) The Company, during
the term of this Agreement and thereafter, will be
engaged in a highly competitive industry in which
many firms, including the Company compete; (iv)
Employee could by utilizing the trade secrets or
other proprietary and confidential information owned
by the Company, become a competitor or be employed by
or otherwise assist a competitor; and (v) the Company
will suffer great loss if Employee were to terminate
this Agreement and thereafter enter, directly or
indirectly, into competition with the Company.
(b) Non-Competition Agreement. During the term of
employee's employment with the Company and for a
period to two (2) years thereafter, as part
consideration for the above referenced options, if
any, Employee agrees not to, directly or indirectly,
acting alone or in conjunction with others, except
with the express written permission of the Company
secured in advance:
(i) invest, own (in whole or in part) be
employed by, consult with, be a stockholder,
officer, director, partner or representative
of, or engage in any business which designs,
manufactures, uses or sells, technology or
conducts any business in direct competition
with the Company or any of its subsidiaries
or affiliates during the term hereof:
(ii) solicit or contact customers of the Company
for purposes other than the business of the
Company:
(iii) solicit, canvas or accept, or transact any
other business in the same lines of business
as Company:
(iv) induce or attempt to influence any employee
of Company to terminate his or her
employment; or
(v) disparage by word, action or otherwise the
business reputation of the Company.
(c) Confidentiality Agreement. During the term of this
Agreement and following the termination hereof, and
for a period of five years thereafter the Employee
agrees not to disclose or make any use, for his own
benefit or for the benefit of a business or entity
other than the Company or its subsidiaries or
affiliates of any information or data of or
pertaining to the Company, its business and financial
affairs, or its products or services which is treated
as confidential by the Company and is not generally
known within its trade, which was acquired by
Employee during his affiliation with the Company.
(d) Independent Agreement. All agreements made in this
Paragraph shall be construed as agreements
independent of any other provision herein, and the
existence of any claim, cause of action or defense of
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Employee as against the Company predicated on this
Agreement, or otherwise, shall not constitute a
defense to the Company's enforcement of such
agreement. The covenants and agreements of Employee
contained herein shall survive the termination or
expiration of this Agreement.
(e) Equitable Remedies. Employee further acknowledges and
understands that his services are of a special and
unique nature, therefore the breach of this agreement
cannot be adequately or accurately compensated for in
damages by an action at law, and that the breach or
threatened breach of any provisions of this agreement
would cause the Company irreparable harm. In the
event of any such breach, Employee agrees that the
Company shall be entitled, as a matter of right, to
injunctive and other equitable relief, without
waiving any other rights which it may have to damages
or otherwise under this Agreement.
(f) Nature of Restrictions. Employee hereby specifically
acknowledges and agrees that the temporal and other
restrictions contained in this Paragraph are
reasonable and necessary to protect the business and
prospects of the Company, and that the enforcement of
the provisions of this Paragraph will not work an
undue hardship on him.
(g) Survival. Employee further agrees, in the event that
any provision of this Paragraph is held to be invalid
or against public policy, the remaining provisions of
this Paragraph and the remainder of this Agreement
shall not be affected thereby.
11. Inventions and Patents. Employee agrees that any inventions,
designs, improvements, and/or discoveries made by Employee during the term of
his employment solely or jointly with others, which (i) are made directly or
indirectly using the Company's equipment, supplies, facilities, trade secrets,
or time (ii) related at the time of conception or reduction to practice of the
business of the Company and/or the Company's actual or anticipated research and
development, or (iii) result from any work performed by Employee for the
Company, shall be the exclusive property of the Company. Employee agrees that he
will promptly and fully inform and disclose to the Company all such inventions,
designs, improvements, and discoveries, and Employee promises to assign such
inventions to the Company. Employee also agrees that the Company shall have the
right to keep such inventions as trade secrets, if the Company chooses. Employee
shall assist the Company in obtaining patents in the United States and in all
foreign countries on all inventions, design, improvements, and discoveries
deemed patentable by the Company and shall execute all documents and do all
things necessary to obtain Letters Patents to vest the Company with full and
extensive titles to the patents and will assist the Company to protect the
patents against infringement by others. For purposes of this Paragraph, an
invention is presumed if it relates at the time of conception or reduction to
practice of the business of the Company or the Company's actual or anticipated
research or development during the period of Employee's employment. It is to be
understood that specifically excluded from the above ownership or
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governance by the Company are Employee's ownership and inventive concepts,
related to Employee's equity interest in WaxTech International, Inc., a Texas
corporation engaged in the businesses of wax and chemical manufacturing and
marketing, intellectual property development, international business
development, agricultural products, and crude oil refining. The above exception
is only applicable if the WaxTech activities are not in competition with those
activities of EnerTeck Chemical Corporation. Any and all WaxTech activities that
precede the Effective Date of this Agreement are expressly the exclusive
property of WaxTech and are excluded from any ownership or governance of the
Company.
12. Indemnification of Officers and Employees. The Company shall
indemnify, protect and hold Employee harmless from any and all claims and legal
actions against the Company including but not limited to product liability
claims, shareholder or government claims, fines, penalties, or legal actions; or
any other tort or action against the Employee as a result of Employee's
employment by Company. Company does not presently carry officer and director
liability insurance, but will purchase such insurance commensurate with the
business(es) undertaken by the Company when cash flow is sufficient to pay the
premiums therefor.
13. Notices. Any notices, demands, or requests provided for, required
or permitted to be given pursuant to this Agreement shall be deemed to have been
properly given if in writing and given to the party personally or if it is sent
by registered mail, postage prepaid, to the following addresses:
TO EMPLOYEE: TO THE COMPANY:
V. Xxxxxxx Xxxxxxx EnerTeck Chemical Corporation
000 Xxxxx Xxxx 00000 Xxxxxxxxx Xx 000
Xxxxxxx, Xxxxx 00000 Xxxxxxxx, XX 00000
14. Entire Agreement. This Agreement contains the entire agreement of
the parties hereto relative to the subject matter hereof and supersedes any
prior negotiations or agreements between the parties.
15. Benefit. This Agreement shall bind and inure to the benefit of the
parties, their successors, assigns, heirs and personal representatives.
16. Assignment. This Agreement is personal in nature to the Employee
and shall not be assignable or delegable voluntarily or by operation of law or
otherwise by the Employee, without the consent of the Company.
17. Amendment. This Agreement shall not be changed, modified,
supplemented or amended, in whole or in part except by an instrument in writing
signed by the parties hereto or their respective successors or assigns, or
otherwise as provided herein.
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18. Severability. In the event that any one or more of the provisions
of this Agreement are for any reason, held to be illegal, invalid, or
unenforceable under present or future laws during the term hereof, such
provision shall be fully severable and this Agreement and each separate
provision hereof shall be construed and enforced as if such illegal, invalid, or
unenforceable provision had never comprised a part of this Agreement and the
remaining provisions of this Agreement shall remain in full force and effect and
shall not be affected by the illegal, invalid, or unenforceable provision or by
its severance from this Agreement.
19.Applicable Law. Any controversy or claim arising out of or relating
to this Agreement, or the breach thereof, shall be settled any applicable Court
of Law presiding in Xxxxxx County, Texas, United States. In respect to any such
legal proceedings, the prevailing party shall be entitled to receive, in
addition to any other remedy, all costs and expenses incurred in such
proceedings, including reasonable attorney's fees.
IN WITNESS WHEREOF the parties have executed this Agreement on the day and year
as noted.
EnerTeck Chemical Corporation EMPLOYEE
By: s/s s/s
---------------------------- -----------------------------------
Xxxxxx X. Xxxxx V. Xxxxxxx Xxxxxxx
Chairman and COO
Date: 3/24/03 Date: 7/25/03
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