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EXHIBIT 10.3
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is entered into this 18th
day of December, 1998, between Xxxxx X. Xxxxx ("Employee"), and Billing Concepts
Corp., a Delaware corporation (the "Company"), whose principal executive offices
are located in San Antonio, Texas.
WHEREAS, the Company desires to employ Employee, and Employee desires
to be employed by the Company, on terms hereinafter set forth;
NOW, THEREFORE, in consideration for the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1
DUTIES
1.1 Employment. During the term of this Agreement, the Company agrees
to employ Employee, and Employee accepts such employment, on the terms and
conditions set forth in this Agreement.
1.2 Extent of Service. During the term of this Agreement, Employee
shall devote his full-time business time, energy and skill to the affairs of the
Company and its affiliated companies, and Employee shall not be engaged in any
other business or consulting activities pursued for gain, profit or other
pecuniary advantage, without the prior written consent of the Company. The
foregoing shall not prevent Employee from making monetary investments in
businesses which do not involve any services on the part of Employee in the
operation or affairs of such businesses or devoting reasonable time to civic and
community activities.
1.3 Duties. Employee's duties hereunder shall include acting as a
Senior Vice President of the Company and as the President of Concepts
Acquisition Corp. d/b/a Communications Software Consultants and CommSoft
("CommSoft"), a subsidiary of the Company. In this capacity Employee will be
responsible for performing the duties of such offices as set forth in the bylaws
of such companies and such other duties as may be reasonably prescribed from
time by Employee's supervisors or the Board of Directors of the Company (the
"Board"). Such duties include, without limitation, the development of
Proprietary Information (defined in Article 5 hereof) for the Company. Employee
shall also perform, without additional compensation, such duties for the
Company's affiliated companies. Employee shall report directly to Xxxxxx X.
Xxxxxx, Xx.
In addition, so long as Employee is employed by the Company pursuant to
this Agreement the Company shall nominate Employee for election to the Company's
Board of Directors.
1.4 Access to and Use of Proprietary Information. Employee recognizes
and the Company agrees that, to assist Employee in the performance of his duties
hereunder, Employee will
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be provided access to and limited use of proprietary and confidential
information of the Company. Employee further recognizes that, as a part of his
employment with the Company, Employee will benefit from and Employee's
qualifications will be enhanced by additional training, education and experience
which will be provided to Employee by the Company directly and/or as a result of
work projects assigned by the Company in which proprietary and confidential
information of the Company is utilized by Employee.
ARTICLE 2
TERM OF EMPLOYMENT
Subject to earlier termination pursuant to Article 4 hereof, this
Agreement shall have a term commencing as of the execution date of this
Agreement and ending upon the expiration of 24 calendar months.
ARTICLE 3
COMPENSATION
3.1 Monthly Base Salary. As compensation for the services to be
rendered hereunder, the Company shall pay Employee a salary of $16,667.67 per
month. Such salary shall be payable in at least monthly installments during the
term of this Agreement.
3.2 Performance Bonus. As additional compensation for services
rendered under this Agreement, Employee shall also be eligible to receive a
discretionary performance bonus if, as and when declared by the Compensation
Committee of the Board or the Board in its discretion.
3.3 Benefits. Employee shall, in addition to the compensation
provided for herein, be entitled to the following additional benefits:
(a) Medical, Health and Disability Benefits. Employee shall be
entitled to receive all medical, health and disability benefits that
may, from time to time, be provided by the Company to all employees of
the Company as a group. To the extent permitted by such plans, the
Company shall waive, or cause its insurers to waive, any applicable
waiting periods under all such benefit plans and the Company agrees
that any pre-existing condition clause in any of the Company's medical,
health or disability insurance coverage shall not be applicable to
Employee.
(b) Pension Plans; Life Insurance. Employee shall be entitled
to participate in or receive benefits under, to the extent he is
eligible under the terms of such plans, such pension, life insurance
and other benefit plans, including the Company's Executive Deferred
Compensation Plan, that are available to senior management or key
employees on the same basis as such plans are available to other
employees of the Company in comparable positions with Employee. To the
extent permitted by such plans, the Company shall waive, or cause the
Company's insurers to waive, all waiting periods for such benefits.
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(c) Other Benefits. Employee shall also be entitled to receive
any other benefits that may, from time to time, be provided by the
Company to all employees of Company as a group.
(d) Vacation. Employee shall be entitled to an annual vacation
with pay as determined in accordance with the prevailing practice and
policy of the Company.
(e) Holidays. Employee shall be entitled to paid holidays in
accordance with the prevailing practice and policy of the Company.
(f) Reimbursement of Expenses. The Company shall reimburse
Employee for all expenses reasonably incurred by Employee in
conjunction with the rendering of services at the Company's request,
provided that such expenses are incurred in accordance with the
prevailing practice and policy of the Company. As a condition to such
reimbursement, Employee shall submit an itemized accounting of such
expenses in reasonable detail, including receipts where required under
federal income tax laws. Employee shall be reimbursed within 60 days of
submitting the itemized accounting referenced above under normal
circumstances.
(g) Options. Employee shall be entitled to receive employee
stock options in an amount comparable to similarly situated employees
and in accordance with the prevailing practice and policy of the
Company.
ARTICLE 4
TERMINATION
4.1 Termination With Notice. This Agreement may be terminated by the
Company or Employee, without cause, upon 30 days prior written notice thereof
given by one party to the other party. In the event of termination effected by
the Employee giving notice pursuant to this Section 4.1, the Company shall pay
Employee his monthly base salary (subject to standard deductions) earned pro
rata to the date of such termination and the Company shall have no further
obligations to Employee hereunder. In the event of termination effected by the
Company giving notice pursuant to this Section 4.1, the Company shall pay
Employee, within 15 days of such termination, a lump-sum payment equal to his
base salary under Section 3.1 hereof for the remaining portion of his 24-month
term of employment pursuant to this Agreement. Payment by the Company in
accordance with this Section shall constitute Employee's full severance pay and
the Company shall have no further obligation to Employee arising out of such
termination.
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4.2 Termination For Cause. This Agreement may be terminated by the
Company for "Cause" (hereinafter defined) upon written notice thereof given by
the Company to Employee. In the event of termination pursuant to this Section
4.2, the Company shall pay Employee his monthly base salary (subject to standard
deductions) earned pro rata to the date of such termination and the Company
shall have no further obligations to Employee hereunder. The term "Cause" shall
mean the following, as determined by the Board in its sole judgment: (i)
Employee breaches any of the terms of this Agreement; (ii) Employee is convicted
of a felony or crime involving moral turpitude; (iii) Employee fails, after at
least one warning, to perform duties assigned under this Agreement (other than a
failure due to death or physical or mental disability); (iv) Employee
intentionally engages in conduct which is demonstrably and materially injurious
to the Company; (v) Employee commits fraud or theft of personal or Company
property from Company premises; (vi) Employee falsifies Company documents or
records; (vii) Employee engages in acts of gross negligence or willful
misconduct to endanger life or property on Company premises; (viii) a
determination by a court of law or governmental agency (which, through lapse of
time or otherwise, is not subject to appeal) that Employee has engaged in sexual
harassment; or (ix) Employee uses, distributes, possesses or is under the
influence of illegal drugs, alcohol or any other intoxicant on Company premises.
4.3 Termination Upon Death or Disability. In the event that Employee
dies, this Agreement shall terminate upon Employee's death. Likewise, if
Employee becomes unable to perform the essential functions of his duties
hereunder, with or without reasonable accommodation, on account of illness,
disability or other reason whatsoever, the Company may, upon notice to Employee,
terminate this Agreement. In the event of termination pursuant to this Section
4.3, Employee (or his legal representatives) shall be entitled to his monthly
base salary earned pro rata for services actually rendered prior to the date of
such termination and the Company shall pay Employee the remaining portion of his
24 - month term of employment in at least monthly installments and in accordance
with the prevailing payroll practices of the Company; provided, however, all
amounts due Employee in the preceding sentence shall be reduced by any and all
short-term or long-term disability benefits received by Employee under employee
benefit plans maintained from time to time by the Company and the Company shall
provide a continuation of any benefits to be given to Employee hereunder as
required by law. Employee shall be deemed to be disabled if at any time during
the term hereof, Employee shall have been unable to perform the duties of his
employment hereunder due to physical or mental incapacity for a period of 90
consecutive days and Employee qualifies for disability benefits under the
Company's employee benefit plans.
4.4 Termination Following Change of Control. Notwithstanding anything
to the contrary contained herein, should Employee at any time within 12 months
of the occurrence of a "change of control" (as defined below) cease to be an
employee of the Company (or its successor), by reason of (i) termination by the
Company (or its successor) other than for "cause" (following a change of
control, "cause" shall be limited to the conviction or a plea of nolo contendere
to the charge of a felony (which, through lapse of time or otherwise, is not
subject to appeal), or a material breach of fiduciary duty to the Company
through the misappropriation of the Company funds or property or (ii) voluntary
termination by Employee for "good reason upon change of control" (as defined
below), then (a) in the event of termination pursuant to Section 4.4(ii) above,
the Company shall pay Employee, within 15 days of the effective date of such
termination, a lump-sum payment equal to (without discounting to present value)
one times his then effective annual base salary, or (b) in the
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event of termination pursuant to Section 4.4(i) above, the Company shall pay
Employee, within 15 days of such termination, a lump-sum payment equal to his
base salary under Section 3.1 hereof for the remaining portion of his 24-month
term of employment pursuant to this Agreement.
As used in this Section, voluntary termination by the Employee for
"good reason upon change of control" shall mean (i) removal of the Employee from
the office the Employee holds on the date of this Agreement, (ii) a material
reduction in the Employee's authority or responsibility, (iii) relocation of
CommSoft's headquarters from the Xxxxxxx Xxxxxx (Xxxxxx, Xxx Xxxx xxxx), (iv) a
reduction in the Employee's compensation or (v) the Company otherwise commits a
breach of this Agreement.
As used in this Agreement, a "change of control" shall be deemed to
have occurred if (i)(a) any "Person" (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
is or becomes a "beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of the Company representing more
than 30% of the combined voting power of the Company's then outstanding
securities, or (ii) at any time during the 24-month period after a tender offer,
merger, consolidation, sale of assets or contested election, or any combination
of such transactions, at least a majority of the Company's Board of Directors
shall cease to consist of "continuing directors" (meaning directors of the
Company who either were directors at or prior to such transaction or who
subsequently became directors and whose election, or nomination for election by
the Company's stockholders, was approved by a vote of at least two thirds of the
directors then still in office who were directors prior to such transaction), or
(iii) the stockholders of the Company approve a merger or consolidation that
would result in the voting securities of the Company outstanding immediately
prior thereto continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity) at least 60% of
the total voting power represented by the voting securities of the Company or
such surviving entity outstanding immediately after such merger or
consolidation, or (iv) the stockholders of the Company approve a plan of
complete liquidation of the Company or an agreement of sale or disposition by
the Company of all or substantially all of the Company's assets.
The Company shall pay any attorney's fees incurred by the Employee in
reasonably seeking to enforce the terms of this Section.
4.5 Survival of Provisions. The covenants and provisions of Articles
5, 6 and 7 hereof shall survive any termination of this Agreement and continue
for the periods indicated, regardless of how such termination may be brought
about.
4.6 Exclusivity of Termination Provisions. The termination provisions
of this Agreement regarding the parties' respective obligations in the event the
Employee's employment is terminated are intended to be exclusive and in lieu of
any other rights or remedies to which the Employee or the Company may otherwise
be entitled at law, in equity or otherwise. It is also agreed that, although the
personnel policies and fringe benefit programs of the Company may be
unilaterally modified from time to time, the termination provisions of this
Agreement are not subject to modification, whether orally, impliedly or in
writing, unless any such modification is mutually agreed upon and signed by the
parties.
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ARTICLE 5
PROPRIETARY PROPERTY; CONFIDENTIAL INFORMATION
5.1 Duties. Employee understands and agrees that during the term of
this Agreement Employee's duties will include the conception and development of
valuable technology during the course and scope of employment, to be
collectively referred to in this Agreement as "Proprietary Information".
5.2 Ownership. Employee understands and agrees that Company shall own
all right, title and interest in and to all Proprietary Information created
within the scope of Employee's employment. In the case of works authored or
created by Employee, such works are considered a "work made for hire" under 00
Xxxxxx Xxxxxx Code ss. 101. All information and technology, if any, created by
Employee prior to his employment with the Company, and in which Employee claims
ownership, is shown in Schedule 5.2 attached hereto, and shall not be considered
included in Proprietary Information.
5.3 Notice and Assistance. Employee shall give adequate written
notice to the Company as soon as practicable of all Proprietary Information
created by Employee during Employee's employment with the Company, assist the
Company in evaluating the Proprietary Information for patent, trade secret and
copyright protection and sign all documents and do all things necessary at the
expense of the Company to assist the Company in the protection, development,
marketing or transfer of such Proprietary Information.
5.4 Assignment. Employee hereby assigns and agrees to assign all of
Employee's right, title and interest in and to Proprietary Information to the
Company or its nominee. At the request of the Company, whether during or after
the termination of Employee's employment, Employee shall timely execute or join
in executing all papers or documents required for the filing of patent
applications and copyright registrations in the United States of America and
such foreign countries as the Company may in its sole discretion select, and
shall assign all such patent applications and copyrights to the Company or its
nominee, and shall provide the Company or its agents or attorneys with all
reasonable assistance in the preparation and prosecution of patent applications
and copyright registrations, including drawings, specifications, and the like,
all at the expense of the Company, and shall do all that may be necessary to
establish, protect or maintain the rights of the Company or its nominee in the
inventions, patent applications, Letters Patent and copyrights in accordance
with the spirit of this Agreement.
5.5 Confidential Information. Employee agrees to keep confidential
(1) all Proprietary Information, and (2) all other information protected by the
Company as trade secrets during the term of this Agreement (including any leaves
of absence) and will neither use nor disclose the confidential information
without written authorization by the Company for ten years thereafter. For the
purposes of this Agreement, such confidential information shall include
information set forth in any application for Letters Patent unless and until
such information is ultimately published. The Company and Employee mutually
agree that the following types of information shall not be protected by this
Agreement:
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(a) Information already in the public domain at the time
Employee received it;
(b) Information which, although created by Employee or disclosed
in confidence to Employee, is later disseminated by the Company into
the public domain;
(c) Information, which although created by Employee or received
in confidence by Employee, is subsequently disseminated into public
domain by a third party who has not breached any duty to any other
party in disseminating such information;
(d) Information created by Employee or given by the Company in
confidence to Employee which Employee is expressly authorized in
writing by the Company to use or disclose thereafter; and
(e) Information which Employee is required to disclose in
accordance with an order of a court of competent jurisdiction or
applicable law.
Employee also understands and agrees that he will maintain in confidence all
information known to him by reason of his employment even if such information is
included in a redacted deposit of a work filed with an application for copyright
registration, if such deposit has been abridged in order to protect the
confidentiality of the information deposited with the Copyright Office. For
purposes of this Agreement, a trade secret "...may consist of any formula,
pattern, device or compilation of information which is used in one's business,
and which gives him an opportunity to obtain an advantage over competitors who
do not know or use it. It may be a formula for a chemical compound, a process of
manufacturing, trading or preserving materials, a pattern for machine or other
device, or a list of customers..." as commonly interpreted by the courts of the
State of Texas. Upon the termination of this Agreement, regardless of how such
termination may be brought about, Employee shall deliver to the Company any and
all documents, instruments, notes, papers or other expressions or embodiments of
Proprietary Property or confidential information which are in Employee's
possession or control.
5.6 Publicity. During the term of this Agreement and for a period of
three years thereafter, Employee shall not, directly or indirectly, originate or
participate in the origination of any publicity, news release or other public
announcements, written or oral, whether to the public press or otherwise,
relating to this Agreement, to any amendment hereto, to Employee's employment
hereunder or to the Company, without the prior written approval of the Company.
5.7 Fiduciary Relationship. Employee, by virtue of his high position
of trust and reliance on him by the Company, understands that Employee enjoys a
fiduciary relationship with the Company in carrying out his obligations under
this Article 5. Accordingly, Employee agrees to honor his obligations under this
Agreement by conducting himself with the degree of fairness and trust toward the
Company as required by a fiduciary.
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ARTICLE 6
RESTRICTIVE COVENANTS
6.1 Non-Competition. In consideration of the benefits of this
Agreement, including Employee's access to and limited use of proprietary and
confidential information of the Company, as well as training, education and
experience provided to Employee by the Company directly and/or as a result of
work projects assigned by the Company with respect thereto, Employee hereby
covenants and agrees that during the term of this Agreement and for a period of
three years following termination of this Agreement, regardless of how such
termination is brought about, Employee shall not, and the Employee shall cause
his Associates, Affiliates and representatives not to, directly or indirectly,
as proprietor, partner, stockholder, director, executive, officer, employee,
consultant, joint venturer, investor or in any other capacity, engage in, or
own, manage, operate or control, or participate in the ownership, management,
operation or control, of any entity which engages anywhere in the United States
or Canada in any business activity in which the Company or its subsidiaries or
their Affiliates, (including, but not limited to, CommSoft), participates during
Employee's employment with the Company or its subsidiaries, including, but not
limited to, the activities of the Company listed on Schedule 6.1.; provided,
however, the foregoing shall not prohibit Employee from purchasing and holding
as an investment not more than 5% of any class of publicly traded securities of
any entity which conducts a business in competition with the business of the
Company, so long as Employee does not participate in any way in the management,
operation or control of such entity. The terms "Associates" and "Affiliates" as
used in this Section 6.1 shall have the meanings ascribed to them in the Plan of
Merger and Acquisition Agreement of even date herewith, by and among Billing
Concepts Corp., Concepts Acquisition Corp., Communications Software Consultants,
Inc. and Xxxxx X. Xxxxx.
6.2 Judicial Reformation. Employee acknowledges that, given the
nature of the Company's business, the covenants contained in Section 6.1
establish reasonable limitations as to time, geographic area and scope of
activity to be restrained and do not impose a greater restraint than is
reasonably necessary to protect and preserve the goodwill of the Company's
business and to protect its legitimate business interests. If, however, Section
6.1 is determined by any court of competent jurisdiction to be unenforceable by
reason of its extending for too long a period of time or over too large a
geographic area or by reason of it being too extensive in any other respect or
for any other reason, it will be interpreted to extend only over the longest
period of time for which it may be enforceable and/or over the largest
geographic area as to which it may be enforceable and/or to the maximum extent
in all other aspects as to which it may be enforceable, all as determined by
such court.
6.3 Customer Lists; Non-Solicitation. In consideration of the
benefits of this Agreement, including Employee's access to and limited use of
proprietary and confidential information of the Company, as well as training,
education and experience provided to Employee by the Company directly and/or as
a result of work projects assigned by the Company with respect thereto, Employee
hereby further covenants and agrees that following the termination of this
Agreement, regardless of how such termination may be brought about, Employee
shall not, for a period of three years following termination of this Agreement,
directly or indirectly, (a) use or make known to any person or entity the names
or addresses of any clients or customers of the Company or its subsidiaries or
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any other information pertaining to them, (b) call on, solicit or attempt to
call on or solicit any clients or customers of the Company or its subsidiaries,
nor (c) solicit for employment, recruit, hire or attempt to recruit or hire any
employees of the Company or its subsidiaries.
ARTICLE 7
ARBITRATION
Except for the provisions of Articles 5 and 6 of this Agreement dealing
with proprietary property, confidential information and restrictive covenants,
with respect to which the Company expressly reserves the right to petition a
court directly for injunctive and other relief, any claim, dispute or
controversy of any nature whatsoever, including but not limited to tort claims
or contract disputes, between the parties to this Agreement or their respective
heirs, executors, administrators, legal representatives, successors and assigns,
as applicable, arising out of or relating to your employment or the termination
of your employment with the Company and/or the terms and conditions of this
Agreement, including the implementation, applicability and interpretation
thereof, shall, upon the written request of one party served upon the other, be
submitted to and settled by arbitration in accordance with the provisions of the
Federal Arbitration Act, 9 U.S.C. xx.xx. 1-15, as amended. The terms of the
commercial arbitration rules of the American Arbitration Association (the "AAA")
shall apply except to the extent they conflict with the provisions of this
paragraph. If the amount in controversy in the arbitration exceeds Two Hundred
Fifty Thousand Dollars ($250,000), exclusive of interest, attorneys' fees and
costs, the arbitration shall be conducted by a panel of three (3) independent
arbitrators. Otherwise, the arbitration shall be conducted by a single,
independent arbitrator. The parties shall endeavor to select independent
arbitrators by mutual agreement. If such agreement cannot be reached within
thirty (30) calendar days after a dispute has arisen which is to be decided by
arbitration, the selection of the arbitrator(s) shall be made in accordance with
Rule 13 of the Rules as presently in effect. If three (3) arbitrators are
selected, the arbitrators shall elect a chairperson to preside at all meetings
and hearings. If a dispute is to be resolved by a sole arbitrator in accordance
with the terms hereof, or if the dispute is to be resolved by a panel of three
(3) arbitrators as provided hereinabove, then each such arbitrator shall be a
member of a state bar engaged in the practice of law in the United States or a
retired member of a state or the federal judiciary in the United States. The
award of the arbitrator(s) shall require a majority of the arbitrators in the
case of a panel of arbitrators, shall be based on the evidence admitted and the
substantive law of the State of Texas and shall contain an award for each issue
and counterclaim. The award shall be made thirty (30) days following the close
of the final hearing and the filing of any post-hearing briefs authorized by the
arbitrator(s). The award of the arbitrator(s) shall be final and binding on the
parties hereto. Each party shall be entitled to inspect and obtain a copy of
non-privileged, relevant documents in the possession or control of the other
party. All such discovery shall be in accordance with procedures approved by the
arbitrator(s). Unless otherwise provided in the award, each party shall bear its
own costs of discovery. Each party shall be entitled to take one deposition.
Each party shall be entitled to submit one set of interrogatories which require
no more than 30 answers. All discovery shall be expedited, consistent with the
nature and complexity of the claim or dispute and consistent with fairness and
justice. The arbitrator(s) shall have the power to compel any party to comply
with discovery requests of the other parties and to issue binding orders
relating to any discovery dispute which shall be enforceable in the same manner
as awards. The arbitrator(s) also shall have the power to impose sanctions for
abuse or frustration of the arbitration process including, without limitation,
the refusal to comply with orders of the
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arbitrator(s) relating to discovery and compliance with subpoenas. The
arbitrator(s) shall require the non-prevailing party to pay the prevailing
party's attorneys' fees and costs incurred in connection with the arbitration.
It is further agreed that any of the parties hereto may petition the United
States District Court for the Western District of Texas, San Antonio Division,
for a judgment to be entered upon any award entered through such arbitration
proceedings. All arbitration proceedings shall be conducted in San Antonio,
Texas.
ARTICLE 8
MISCELLANEOUS
8.1 Notices. All notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given if delivered personally,
mailed by certified mail (return receipt requested) or sent by an overnight
delivery service with tracking procedures or by facsimile to the parties at the
following addresses or at such other addresses as shall be specified by the
parties by like notice: If to Employee, at the address set forth below his name
on the signature page hereof; and if to the Company, at 0000 Xxxx Xxxxx Xxxxx,
Xxxxx 000, Xxx Xxxxxxx, Xxxxx 00000, Attention: President and Chief Executive
Officer.
8.2 Equitable Relief. In the event of a breach or a threatened breach
by Employee of any of the provisions contained in Article 5 or 6 of this
Agreement, Employee acknowledges that the Company will suffer irreparable injury
not fully compensable by money damages and, therefore, will not have an adequate
remedy available at law. Accordingly, the Company shall be entitled to obtain
such injunctive relief or other equitable remedy from any court of competent
jurisdiction as may be necessary or appropriate to prevent or curtail any such
breach, threatened or actual. The foregoing shall be in addition to and without
prejudice to any other rights that the Company may have under this Agreement, at
law or in equity, including, without limitation, the right to xxx for damages.
8.3 Assignment. The rights and obligations of the Company under this
Agreement shall inure to the benefit of and shall be binding upon the successors
and assigns of the Company. Employee's rights under this Agreement are not
assignable and any attempted assignment thereof shall be null and void.
8.4 Governing Law; Venue. This Agreement shall be subject to and
governed by the laws of the State of Texas. Exclusive venue for any action
permitted hereunder shall be San Antonio, Bexar County, Texas, and Employee
hereby consents to such venue.
8.5 Entire Agreement; Amendments. This Agreement constitutes the
entire agreement between the parties and supersedes all other agreements between
the parties which may relate to the subject matter contained in this Agreement.
This Agreement may not be amended or modified except by an agreement in writing
which refers to this Agreement and is signed by both parties.
8.6 Headings. The headings of sections and subsections of this
Agreement are for convenience only and shall not in any way affect the
interpretation of any provision of this Agreement or of the Agreement itself.
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8.7 Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law. If any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
8.8 Waiver. The waiver by any party of a breach of any provision
hereof shall not be deemed to constitute the waiver of any prior or subsequent
breach of the same provision or any other provisions hereof. Further, the
failure of any party to insist upon strict adherence to any term of this
Agreement on one or more occasions shall not be considered a waiver or deprive
that party of the right thereafter to insist upon strict adherence to that term
or any other term of this Agreement unless such party expressly waives such
provision pursuant to a written instrument which refers to this Agreement and is
signed by such party.
[Signatures on following page.]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
BILLING CONCEPTS CORP.
By: /s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx
President & COO
EMPLOYEE:
/s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
Address:
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