EMPLOYMENT AGREEMENT
This Employment Agreement is entered into as of the 1st day of April,
1998, between MAXpc TECHNOLOGIES, INC., a Texas corporation (hereinafter
referred to as "Employer"), XXXX XXXXX (hereinafter referred to as "Employee"),
and Voxcom Holdings, Inc., the parent corporation of Employer (hereinafter
referred to as "Voxcom").
In consideration of the mutual promises hereinafter set forth, the
parties hereto agree as follows:
1. Employment. Employer agrees to employ Employee and Employee agrees
to serve Employer, upon the terms and conditions hereinafter set forth.
2. Term. The employment of Employee hereunder and this Employment
Agreement shall commence the date hereof and shall continue in effect for a
period of three years from the date hereof or until terminated pursuant to
Section 7 hereof.
3. Duties. During the term of this Agreement, Employee shall be engaged
as the chief executive officer of Employer and shall report to the Board of
Directors of Employer. Employee's title shall be President and Chief Executive
Officer of Employer, with such powers and duties in those capacities as are set
forth in the Bylaws of Employer. Employee shall perform his duties from the
Employer's main office in Dallas, Texas.
4. Extent of Services. During the term of this Agreement, Employee
shall devote substantially his entire working time, attention, and energies to
the business of Employer, consistent with the time and effort he has devoted to
the business of Employer in the past, and shall not during the term of service
be actively engaged in any other business activities. However, this shall not be
construed as preventing Employee from investing the Employee's personal assets
in such form or manner as may require occasional or incidental services on the
part of Employee in the management, conservation and protection of such
investments and provided that such investments cannot be construed as being
competitive or in conflict with the business of Employer.
5. Compensation.
5.1. Base Salary. Employer will pay Employee during the Employee's term
of service hereunder, as compensation for the Employee's services, the sum of
$7,000 per month (sometimes hereinafter referred to as the "Base Salary"),
payable in biweekly or other installments in accordance with the general
practices of the Employer. Employee shall be entitled to participate in any and
all executive bonus programs of Employer and Voxcom at levels equal to those of
employees in comparable executive positions. Any bonus compensation shall be
payable in the discretion of the Board of Directors of the Employer.
5.2. Benefits.
5.2.1. The Employee shall be entitled to the same benefits generally
provided to other executives of Employer and Voxcom of comparable rank and
responsibility as well as to those generally provided to all officers of
Employer and Voxcom in accordance with the policies of Voxcom from time to time.
These are to include, but not be limited to, health insurance and vacation
pursuant to Voxcom's standard policies.
5.2.2. The Employer shall compensate or provide the designated
beneficiaries of Employee with the benefits accrued or vested under any
compensation and/or other benefit plan of the Employer in which Employee was a
participant as of the date of his death.
5.3 Bonus. Employee shall be paid a bonus within thirty (30) days
after the close of each calendar quarter in an amount equal to 25% of the net
profit of Employer for the quarter then ended, in addition to all amounts paid
in salary under Section 5.1. Net profit shall be determined in accordance with
generally accepted accounting principles, and shall reflect a deduction for
federal income tax that would be paid by Employer if it were a separate
corporation. Prior to making such payment to Employee, Employee may elect to
utilize the cash otherwise payable to him to purchase additional shares of
Employer's Common Stock at a purchase price of $5.00 per share, up to a maximum
of 800,000 shares. Employee shall also be paid a sign-on bonus upon the
execution of this Agreement in the sum of $30,000.
6. Expenses. During the term of employment provided for
herein, Employer shall pay or reimburse Employee, in accordance with its
standard policy, upon submission of vouchers by the Employee for all expenses
incurred by the Employee in the interest of Employer's business.
7. Termination.
7.1. Termination Events. Subject to the provisions of Paragraph 7.2
of this Section, this Agreement shall terminate:
7.1.1. Upon death of Employee.
7.1.2. At the option of the Employer if Employee shall become disabled
and remain disabled for a period of six (6) months. Disability shall be defined
as Employee's inability through illness or other cause to perform his normal
work load as measured by the twelve (12) months preceding the commencement of
such disability. During such disability, Employee shall be compensated in
accordance with Employer's standard policy regarding disability.
7.1.3. Upon mutual agreement.
7.1.4. At any time at the option of Employee.
EMPLOYMENT AGREEMENT Page 2
7.1.5. At the Employer's option for any good cause. For purposes of
this Section, "good cause" for termination shall mean: (a) the conviction of
Employee of any act involving moral turpitude, (b) any material breach by
Employee of any of the terms of, or the failure to perform any covenant
contained in, this Agreement, (c) any material breach of the terms of the Stock
Purchase Agreement between Employee and Voxcom Holdings, Inc., or (d) the
failure of the Company to have achieved a minimum level of sales of 4,000
multimedia computer boards (or their equivalent) during any month during the
first year after the execution hereof, at a gross margin of at least 33 1/3%.
7.1.6. Upon the conclusion of the term of this Agreement.
7.2. Consequences of Termination. Upon termination pursuant to
Section 7.1, the Employee shall be paid all salary prorated to the date of
termination.
8. Trade Secrets and Confidential Information. During the term of
this Agreement, Employee will have access to customer lists and compilations of
information and records specific to and regularly used in the operation of the
business of Employer. Employee acknowledges that such information constitutes
valuable and confidential information of the Employer. Employee shall not
disclose any of the aforesaid private company secrets, directly or indirectly,
nor use them in any way, either during the term of this Agreement or after
termination of employment. All files, records, electronic and magnetic files,
documents, specifications, equipment and similar information relating to the
business of Employer, whether prepared by Employee or otherwise coming into
Employee's possession, shall remain the exclusive property of Employer and shall
not be removed from the premises of Employer except as shall be necessary for
Employee to perform Employee's duties under this Agreement. Upon termination of
this Agreement for any reason, Employee will deliver all such materials in his
possession and all copies thereof to Employer.
9. Non-competition.
9.1. Employee acknowledges that during the term of this Agreement
the Employer has agreed to provide to him, and he shall receive from the
Employer, special training and knowledge. Employee acknowledges that included in
the special knowledge received is the confidential information identified in
Section 8. Employee acknowledges that this confidential information is valuable
to the Employee and, therefore, its protection and maintenance constitutes a
legitimate interest to be protected by the Employer by the enforcement of this
covenant not to complete. Therefore, Employee agrees that during the term of
this Agreement and for a period commencing upon the termination of the term of
Employee's employment hereunder and ending upon the second anniversary thereof,
unless otherwise extended pursuant to the terms hereof, Employee will not,
directly or indirectly, either as an employee, employer, consultant, agent,
principal, partner, stockholder, corporate officer, director, or in any other
individual or representative capacity, engage or participate in any business
that is in direct competition with the business of the Employer as it exists
upon the termination of the term of Employee's employment hereunder, anywhere
within the State of Texas. Employee represents to the Employer that the
enforcement
EMPLOYMENT AGREEMENT Page 3
of the restriction contained in this Section 9 would not be unduly burdensome to
Employee. Employee further represents and acknowledges that Employee is willing
and able to compete in other geographical areas not prohibited by this Section
9.
9.2. Employee agrees that a breach or violation of this covenant not
to compete by such Employee shall entitle the Employer, as a matter of right, to
an injunction issued by any court of competent jurisdiction, restraining any
further or continued breach or violation of this covenant. Such right to an
injunction shall be cumulative and in addition to, and not in lieu of, any other
remedies to which the Employer may show itself justly entitled. Further, during
any period in which Employee is in breach of this covenant not to compete, the
time period of this covenant shall be extended for an amount of time that
Employee is in breach hereof.
9.3. In addition to the restrictions set forth in paragraph (a) of
this Section 9, Employee shall not for a period commencing upon the termination
of the term of Employee's engagement hereunder and ending upon the second
anniversary thereof, either directly or indirectly, (i) make known to any
person, firm or corporation the names and addresses of any of the customers of
the Employer or contacts of the Employer within the custom sign making industry
or any other information pertaining to such persons, (ii) call on, solicit, or
take away, or attempt to call on, solicit or take away any of the customers of
the Employer on whom Employee called or with whom Employee became acquainted
during Employee's association with the Company, whether for Employee or for any
other person, firm or corporation within the State of Texas or (iii) recruit or
hire or attempt to recruit or hire, directly or by assisting others, any other
employee of the Employer or any of its affiliates.
9.4. The representation and covenants contained in this Section 9
on the part of Employee will be construed as ancillary to and independent of any
other provision of this Agreement, and the existence of any claim or cause of
action of Employee against the Employer or any officer, director, or shareholder
of the Employer or any officer, director, or shareholder of the Employer,
whether predicated on this Agreement or otherwise, shall not constitute a
defense to the enforcement by the Employer of the covenants of the Employee
contained in this Section 9. In addition, the provisions of this Section 9 shall
continue to be binding upon Employee in accordance with its terms,
notwithstanding the termination of Employee's engagement hereunder for any
reason.
9.5. If Employee violates any covenant contained in this Section 9
and the Employer brings legal action for injunctive or other relief, the
Employer shall not, as a result of the time involved in obtaining the relief, be
deprived of the benefit of the full period of any such covenant. Accordingly,
the covenants of Employee contained in this Section 9 shall be deemed to have
durations as specified above, which periods shall commence upon the later of (i)
the termination of the term of Employer's employment hereunder and (ii) the date
of entry by a court of competent jurisdiction of a final judgment enforcing the
covenants of Employee in this Section 9.
9.6. The parties to this Agreement agree that the limitations
contained in this Section 9 with respect to geographic area, duration and scope
of activity are reasonable. However, if any
EMPLOYMENT AGREEMENT Page 4
court shall determine that the geographic area, duration or scope of activity of
any restriction contained in this Section 9 is unenforceable, it is the
intention of the parties that such restrictive covenant set forth herein shall
not thereby be terminated but shall be deemed amended to the extent required to
render it valid and enforceable.
10. General Provisions.
10.1. Notice. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and sent by certified mail by
Employer to the residence of Employee, or by Employee to Employer's principal
office.
10.2. Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the Employer, its successors and assigns, and the
Employer shall require any successor or assign to expressly assume and agree to
perform this Agreement in the same manner and to the same extent that the
Employer would be required to perform if no such succession or assignment had
taken place. The term "Employer" as used herein shall include successors and
assigns. The term "successors and assigns" as used herein shall mean a
corporation or other entity acquiring all or substantially all the assets and
business of the Employer (including this Agreement) whether by operation of law
or otherwise. Neither this Agreement nor any right or interest hereunder shall
be assignable or transferable by the Employee, his beneficiaries or legal
representatives, except by will or by the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Employee's
legal personal representative.
10.3. Waiver of Breach. The waiver by Employer or Employee of a breach
of any provisions of this Agreement by the other shall not operate or be
construed as a waiver of any subsequent breach.
10.4. Entire Agreement. This instrument contains the entire agreement
of the parties. It may not be changed orally, but only by an agreement in
writing, signed by the party against whom enforcement of any waiver, change,
modification, extension or discharge is sought.
10.5. Attorneys' Fees. In the event that there shall be any litigation
or court proceeding with respect to this Agreement or the obligations of the
parties hereunder, the prevailing party shall be entitled to recover reasonable
attorneys' fees and costs from the other party.
10.6. Governing Law. This Employment Agreement shall be governed by
the laws of the State of Texas.
10.7. Arbitration. The Employer and Employee agree to submit to final
and binding arbitration any and all disputes, claims (whether in tort, contract,
statutory, or otherwise) and/or disagreements concerning the interpretation or
application of this Agreement and/or Employee's engagement by the Employer
and/or the termination of this Agreement and/or Employee's engagement by the
Employer; provided, however, notwithstanding the foregoing, in no event shall
any dispute, claim or disagreement arising under this Agreement be submitted to
arbitration
EMPLOYMENT AGREEMENT Page 5
pursuant to this Section or otherwise. Any such dispute, claim and/or
disagreement subject to arbitration pursuant to the terms of this Section shall
be resolved by arbitration in accordance with the Commercial Arbitration Rules
of the American Arbitration Association (the "AAA"). Arbitration under this
provision must be initiated within 30 days of the action, inaction, or
occurrence about which the party initiating the arbitration is complaining.
Within 10 days of the initiation of an arbitration hereunder, each party will
designate an arbitrator pursuant to Rule 14 of the AAA Rules. The appointed
arbitrators will appoint a neutral arbitrator from the panel in the manner
prescribed in Rule 13 of the AAA Rules. Employee and the Employer agree that the
decision of the arbitrators selected hereunder will be final and binding on both
parties. This arbitration provision is expressly made pursuant to and shall be
governed by the Federal Arbitration Act, 9 U.S.C. Sections 1 - 14. The parties
hereto agree that pursuant to Section 9 of the Act that a judgment of the United
States District Court for the North District of Texas, Dallas Division, shall be
entered upon the award made pursuant to the arbitration.
IN WITNESS WHEREOF, Employer has caused this Employment Agreement to be
executed in its corporate name by its corporate officers thereunto duly
authorized, and Employee has executed this Employment Agreement.
EMPLOYEE:
/s/ Xxxx Xxxxx
------------------------------------
XXXX XXXXX
EMPLOYER:
MAXpc TECHNOLOGIES, INC.
By: /s/ Xxxxxx X. XxXxxxxx
----------------------------------
Xxxxxx X. XxXxxxxx, Vice President
VOXCOM HOLDINGS, INC.
By: /s/ Xxxxxx X. XxXxxxxx
---------------------------------
Xxxxxx X. XxXxxxxx, President
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