AGREEMENT
THIS SALES AGREEMENT (this "Agreement") is made and entered into on May
1, 2003, by and between, EnerTeck Chemical Corporation, a Texas corporation (the
"Company") on the one hand, and Xxxxx X. Xxx & Associates, Inc., also a Texas
corporation (the "Sales Representative"-SR) on the other hand.
In consideration of the mutual representations, warranties, covenants
and promises contained herein and other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto agree
as follows:
1. Services. For a period of two (2) year from the date hereof, SR will
use its professional and marketing contacts to assist the Company in promoting
its EnerBurn(TM) product at key accounts with the potential to purchase at least
40,000 gallons per year (the "SR's Accounts") are at least testing EnerBurn in
commercial applications.
2. Compensation. The Company shall compensate SR with payment of
$100,000
when the SR's Accounts, which collectively have the potential to purchase 40,000
gallons of EnerBurn, have first introduced the EnerBurn product and it is
incorporated into a test and/or it is used on a commercial basis, in a
customer's fleet(s). SR and Company will mutually agree upon and determine, case
by case, on the potential to purchase EnerBurn, for each SR customer, that shall
apply to the aforementioned 40,000 gallon requirement that would trigger the
aforementioned $100,000 payment. In addition, SR will be paid up to $250,000 as
a commission from the sale of the first 40,000 gallons of EnerBurn sold by SRs;
this payment will be made at the rate of $6.25 per gallon of EnerBurn sold. In
both cases, payment to SR will be due 30 days from the date of shipment or the
date of invoice, which ever is earlier.
For EnerBurn sales effected by the SR in excess of 40,000 gallons, the Company
agrees to compensate SR consistent with the Company's Commission and Finder Fee
Policy for EnerBurn Sales developed for Company during the Term of this
contract. Commissions will be paid for thirty nine (39) months from the date of
the first sale to each new account independent of the Term of this SR Agreement.
Further, such Commissions, as a percent of revenue, shall be no less than 5% for
sales in months 1 thru 15, 3.5% for sales in months 16 thru 27, and 2% for sales
in months 28 thru 39. SR will keep Company advised of all sales opportunities
identified by SR.
In addition to the foregoing Fees, Company agrees to reimburse SR for reasonable
out-of-pocket expenses incurred by SR in performing Services in Paragraph 1.,
above. All expenses and any charges for Professional Services must be
pre-approved by Company.
3. Independent Contractor. SR shall, at all times, render services
pursuant to this Agreement as an independent contractor and not as an employee,
agent or servant of Company, nor shall SR, by reason of this Agreement or the
services performed pursuant hereto, be deemed an employee of Company for
purposes of withholding employee payroll taxes, contributions, pensions or
otherwise.
4. Termination.
(a) In the event that either party materially or repeatedly
defaults in the performance of any of their respective duties or obligations
under this Agreement, and within thirty (30) days after written notice is given
to the defaulting party specifying the default, and (i) such default is not
substantially cured, or (ii) the defaulting party does not obtain the approval
of the other party to a plan to remedy the default, then the party not in
default may terminate this Agreement by giving written notice to the defaulting
party.
(b) If either party becomes or is declared insolvent or bankrupt, is
the subject of any proceedings relating to its liquidation, insolvency or for
the appointment of a receiver or similar officer for it, makes a general
assignment for the benefit of all or substantially all of its creditors, or
enters into an agreement for the composition, extension or readjustment of all
or substantially all of its obligations, or breaches any warranty or
representation contained herein, then the other party, within the conditions of
applicable law, may immediately terminate this Agreement by giving written
notice.
5. Miscellaneous.
(a) Assignment. SR may not assign any of his rights or obligations
hereunder, without the Company's prior written consent, which the Company may
withhold in its sole and absolute discretion.
(b) Notice. All notices, demands or other communications to be
given to any party hereunder shall be in writing. A notice shall be validly
given or made to another party if served either personally or if deposited in
the United States mail, certified or registered, return receipt requested, or if
transmitted by telegraph, telecopy or other electronic written transmission or
if sent by overnight courier service, and if addressed to the applicable party
as set forth at the end of this Agreement. If such notice, demand or other
communication is served personally, service shall be conclusively deemed made at
the time of such personal service. If such notice, demand or other communication
is given by mail, service shall be conclusively deemed made seventy-two (72)
hours after the deposit thereof in the United States mail. If such notice,
demand or other communication is given by overnight courier, or electronic
transmission, service shall be conclusively deemed made at the time of
confirmation of delivery thereof. Any party may change its address for the
purpose of receiving notices, demands and other communications as herein
provided, by a written notice given in the aforesaid manner.
(c) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas, without regard to conflicts of
law principles.
(d) Entire Agreement. This Agreement constitutes the entire agreement
among the parties pertaining to the subject matter hereof and supersedes all
prior agreements, understandings, negotiations and discussions, whether oral or
written, of the parties.
(e) Waivers. No waiver of compliance with any provision of this
Agreement shall be binding unless executed in writing by the party making the
waiver. No waiver of any of the
provisions of this Agreement shall be deemed or shall constitute a waiver of any
other provision hereof (whether or not similar), nor shall such waiver
constitute a continuing waiver.
(f) Amendments. Any amendment to this Agreement shall be in writing and
signed by the parties hereto.
(g) Invalidity. In the event that any one or more of the provisions
contained in this Agreement, shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, then to the maximum extent permitted by
law, such invalidity, illegality or unenforceability shall not affect any other
provision of this Agreement.
(h) Titles. The titles, captions or headings of the Sections herein are
inserted for convenience of reference only and are not intended to be a part of
or to affect the meaning or interpretation of this Agreement.
(i) Multiple Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
shall constitute one and the same instrument.
(j) Income Tax Consequences. SR acknowledges that the Company has not
advised SR regarding the tax implications of this Agreement. Each of the parties
hereto has obtained or will obtain his or its own tax advice with respect to the
transactions contemplated hereby.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed on the day and year first above written.
THE COMPANY THE SR
EnerTeck Chemical Corporation Xxxxx X. Xxx & Associates, Inc.
a Texas corporation a Texas corporation
By: /s/ Xxxxxx Xxxxx By: /s/ Xxxxxxx X'Xxxxx
Xxxxxx Xxxxx Xxxxxxx X'Xxxxx
Chief Executive Officer and President Sr. Vice President
GOBM-SALES-AGREEMENT.AFDcnslt.doc-5-14-032
