EMPLOYMENT AGREEMENT
Between
ENERTECK CHEMICAL CORP.
And
XXXX VAN KRAAYENBURG
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 Corp., a Texas corporation, (the "Company") and Xxxx van
Kraayenburg ("Employee").
WITNESSETH:
WHEREAS, Employee is an experienced professional whose educational
background, experience, skill and expertise in the field of corporate financial
accounting, finance, statutory reporting, taxes, administration and management
and the like render him valuable to the Company as an employee,
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 promises 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 its Executive
Vice President-Finance, Chief Financial Officer (CFO), and Treasurer, and
Employee accepts such employment upon the terms and conditions hereinafter set
forth. The Employee shall report directly to the Board.
2. TERM. The term of this Agreement shall be for a period of twenty
four (24) months from the Effective Date.
3. COMPENSATION
(a) Basic Compensation. During the interim period between the
Effective Date of this Agreement and such time that the Company generates
sufficient cash flow to support increased compensation for its executives, the
Company agrees to pay Employee a wage of $72,000 per year, payable in equal
monthly payments on the regular paydays of the Company for the term of this
Agreement. If and when the Company generates sufficient cash flow to pay
increased compensation to its executives as determined solely by the Board of
Directors, then Employee's basic compensation shall be increased to $125,000 per
year, payable in equal monthly payments on the regular paydays of the Company
for the remainder of the term of this Agreement.
(b)Benefits. In addition to the compensation indicated in3(a),
above, 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.
(c) Vacations. Employee shall also be entitled to four (4)
weeks paid 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 positions indicated above and shall perform such duties as is
consistent with these positions, and as may be delegated or assigned to him from
time to time by the Board of Directors.
5. EXTENT OF SERVICES. The Employee shall devote substantially all of
his working time, attention and energy during normal business hours (other than
absences due to illness or vacation) to the performance of his duties for the
Company.
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.
7. OFFICE: The Company and the Employee agree that the principal place
of employment of the Employee shall be at the Company's principal employee
offices in Stafford, Texas or such other place as the Board of Directors of the
Company (the "Board") may determine.
8. TERMINATION. The Employee's employment hereunder shall terminate
upon the expiration of the Term and may be terminated during the Term under the
following circumstances:
(a) Death. Employee's employment hereunder shall terminate upon his death.
(b) Disability. If, as a result of Employee's incapacity due to physical or
mental illness, Employee shall have been substantially unable to perform his
duties hereunder for an entire period of four (4) months or more during any six
(6) consecutive month period, and within thirty (30) days after written Notice
of Termination is given after such six (6) month period, Employee shall not have
returned to the substantial performance of his duties on a fulltime basis, the
Company shall have the right to terminate Employee's employment hereunder for
"Disability", and such termination in and of itself shall not be, nor shall it
be deemed to be, a breach of this Agreement.
(c) Cause. The Company shall have the right to terminate Employee's
employment for Cause, and such termination in and of itself shall not be, nor
shall it be deemed to be, a breach of this Agreement. For purposes of this
Agreement, "Cause" to terminate Employee's employment shall include but not be
limited to the Employee's:
(i) Conviction of, or plea of guilty or nolo contendere to, a felony;
or
(ii) Continued failure to use reasonable best efforts to substantially
perform his duties hereunder (other than such failure resulting from Employee's
incapacity due to physical or mental illness or subsequent to the issuance of a
Notice of Termination by Employee for Good Reason) after demand for substantial
performance is delivered by the Company in writing that specifically identifies
the manner in which the Company believes Employee has not used reasonable best
efforts to substantially perform his duties; or
(iii) Misconduct (including, but not limited to, a breach of the
provisions of Section 9) that is materially economically injurious to the
Company or to any entity in control of, controlled by or under common control
with the Company ("Affiliates").
(d) Good Reason. Employee may terminate his employment for "Good Reason"
within one hundred and twenty (120) days after Employee has actual knowledge of
the occurrence, without the written consent of Employee, of one of the following
events that has not been cured within thirty (30) days after written notice
thereof has been given by Employee to the Company:
(i) A reduction by the Company in Employee's Base Salary or a failure
by the Company to pay any such amounts when due; (ii) The Company's
failure to provide the benefits set forth in Section 3 or the failure
of the Company to substantially
provide any material employee benefits due to be provided to Employee (other
than any such failure not inconsistent with any express provisions contained
herein which failure affects all senior executive officers); or
(iii) The Company's failure to provide in all material respects the
indemnification set forth in Section 11 of this Agreement. Employee's right to
terminate his employment hereunder for Good Reason shall not be affected by his
incapacity due to physical or mental illness. Employee's continued employment
during the one hundred and twenty (120) day period referred to above in this
paragraph (d) shall not constitute consent to, or a waiver of rights with
respect to, any act or failure to act constituting Good Reason hereunder.
(e) Without Cause. The Company shall have the right to terminate Employee's
employment hereunder without Cause by providing Employee with a Notice of
Termination thirty (30) days prior to the date of termination of employment, and
such termination shall not in and of itself be, nor shall it be deemed to be, a
breach of this Agreement.
(f) Without Good Reason. Employee shall have the right to terminate his
employment hereunder without Good Reason by providing the Company with a Notice
of Termination thirty (30) days prior to the date of termination of employment,
and such termination shall not in and of itself be, nor shall it be deemed to
be, a breach of this Agreement.
9. NON-COMPETITION, CONFIDENTIALITY AGREEMENT AND REMOVAL OF DOCUMENTS.
(a) Purpose: In connection with the limited protection afforded the
Company by the covenants contained in this Paragraph, Employee recognizes and
acknowledges that the Company's need for the following covenants is based 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. While the Employee is employed by the
Company and for a period to two (2) years thereafter, as part of the
consideration for the compensation described in paragraph 3, above, 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) Removal of Documents: Rights to Product. All records, files, drawings,
documents, models, equipment, and the like relating to the Company's business,
which Employee has control over shall not be removed from the Company's premises
without its written consent, unless such removal is in the furtherance of the
Company's business or is in connection with Employee's carrying out his duties
under this Agreement and, if so removed, shall be returned to the Company
promptly after termination of Employee's employment thereunder, or otherwise
promptly after removal if such removal occurs following termination of
employment. Employee shall assign to the Company all rights to trade secrets and
other products relating to the Company's business developed by him alone or in
conjunction with others at any time while employed by the Company.
(e) 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 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.
(f) 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.
(g) 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.
(h) 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.
10. 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.
11. INDEMNIFICATION OF OFFICERS AND EMPLOYEES. The Company shall
indemnify, protect and hold Employee harmless, to the fullest extent permitted
by Texas law and the Company's certificate of incorporation, as amended, and its
by-laws, 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 maintain officer and director liability insurance. However, if the
Company does obtain such coverage in the future, the Company will immediately
cause said Employee to be covered by said insurance.
12. 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:
Xxxx van Kraayenburg EnerTeck Chemical Corporation
00000 Xxxxx Xxxxx Xxxxx 00000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000 Xxxxxxxx, XX 00000
13. 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.
14. BENEFIT. This Agreement shall bind and inure to the benefit of the
parties, their successors, assigns, heirs and personal representatives.
15. 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.
16. 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.
17. 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.
18. 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 the State of Texas. 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 Corp EMPLOYEE
By /S/ By /S/
---------------------------------------- --------------------------------
Xxxxxxx Xxxxxxxxx
President Xxxx van Kraayenburg
Date: August 1, 2003 Date: August 1, 2003
GOBM-VANK EMPLOYMENT AGREEMENT
