EXHIBIT 10(e)
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EMPLOYMENT AGREEMENT
By and Between
ONCOURSE TECHNOLOGIES, INC.
As the Employer
And
XXXXXXX X. XXXXX
As the Employee
Dated: December 4, 2000
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT ("Agreement"), by and between ONCOURSE
TECHNOLOGIES, INC. ("Employer"), a Nevada business corporation having a
registered office at 000 X. Xxxxxx, Xxxxx 0, Xxxxxx Xxxx, Xxxxxx, 00000, and a
principal place of business at 0000 Xxxxx 000xx Xxxxxx, Xxx Xxxxxx, Xxxxxxxxx,
00000, and XXXXXXX X. XXXXX, an individual residing at 0000 Xxxxxxxx Xxxx,
Xxxxxxxx, Xxxxxxxxx, 00000-0000, made the day and year last written below and to
be effective as of January 1, 2001.
WHEREAS, the parties hereto desire to provide for the employment of
Employee by Employer and certain of its subsidiaries upon the terms and
conditions herein set forth; and
NOW, THEREFORE, in consideration of the promises and the mutual covenants
and agreements contained herein, the parties hereto mutually agree as follows:
ARTICLE ONE
Term of Employment
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The Employer hereby employs the Employee and the Employee hereby accepts
employment with the Employer as a salaried employee for a period of five (5)
years, commencing on February 1, 2001 and terminating on April 30, 2004, unless
further extended or sooner terminated in accordance with the terms and
conditions of this Agreement. Unless the context otherwise requires, references
to the term of this Agreement shall refer both to the initial term and any
successive terms.
ARTICLE TWO
Duties of Employee
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Section 2.01. Duties. Employer hereby employs Employee as an executive,
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consultant, and advisor of Employer, and Employee accepts such employment and
agrees to perform the duties appropriate to such office and such other duties,
consistent with the duties Employee performed for Employer prior to the
effective date of this Agreement, as the Board of Directors of Employer shall
also from time to time direct. During any period in which Employee holds any one
or more offices of Employer, including but not limited to President, Secretary
and/or Treasurer, his duties under this Agreement shall include the duties
appropriate to such office. By way of example and not limitation, Employee
shall, to the extent applicable to him in his activities as Employee or in any
other capacity in which he may serve the Employer, be responsible to:
(a) Assist the Employer in the recruitment of professional and staff
personnel and the development of job standards.
(b) Assist the Employer in supervision of the other executive and
staff personnel of the Employer and evaluation of executive and staff
performance.
(c) Assist the Employer in controlling costs and participate, if
requested by the Employer, in the preparation of operating and capital
budgets (including projections for revenues and expenditures).
(d) Assist the Employer in developing and marketing the Employer's
products and services.
(e) Assist the Employer in obtaining capital and loans.
(f) Maintain and provide to Employer customer records and other
information in a form that permits the information to be validated by
Employer.
(g) Perform such other functions or duties as from time to time
reasonably directed by the Employer, consistent with the duties Employee
performed for the Employer prior to the effective date of this Agreement,
or as otherwise required by this Agreement.
Section 2.02. Place of Employment. The services of Employee shall be
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rendered principally at 0000 Xxxxx 000xx Xxxxxx, Xxx Xxxxxx, Xxxxxxxxx, 00000,
and at such other place or places, and such travel as the Board of Directors of
Employer shall reasonably determine; provided, however, that Employee shall in
no event be required to relocate from the New Berlin, Wisconsin area without his
consent.
Section 2.03. Hours of Employment. During the term of this Agreement, the
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Employee shall devote during the normal business hours designated by the
Employer a minimum of forty (40) hours per week to the business of the Employer,
except for holidays, authorized sick leave, and vacation time as provided below.
Section 2.04. Engaging in Other Employment. Except as provided in Section
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2.05 below, the Employee shall devote his entire productive time, ability, and
attention during regular business hours to the business of the Employer during
the term of this Agreement on a full-time basis. The Employee shall not directly
or indirectly render any material services of a business, commercial, or
professional nature to any other person or organization, other than to any one
or more of the Subsidiaries as provided in Section 2.05 below, whether for
compensation, or otherwise, without the prior written consent of the Employer.
Section 2.05. Employment With Subsidiaries. For the purposes of this
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Agreement, the term "Subsidiaries" shall mean any corporations or other entities
in which Employer owns a majority of the voting stock or other voting equity
interests. Employer's present Subsidiaries are Micro Estimating Systems, Inc., a
Wisconsin corporation, CAM Solutions, Inc., a Minnesota corporation, Cimtronics,
Inc., an Arizona corporation, and TekSoft, Inc., an Arizona corporation.
Notwithstanding Section 2.04 above, Employee may render services of any nature
whatsoever to any Subsidiary of Employer. Each Subsidiary which desires services
of Employee will execute an acknowledgement, acceptance and consent of and to
the provisions of this Agreement, and in such event, (a) Employee shall not be
entitled to additional compensation for such services; (b) Employer and the
requesting Subsidiary shall enter into an agreement wherein such Subsidiary
contributes to the compensation payable to Employee hereunder; and (c) such
Subsidiary, as Employer, and Employee, as Employee, shall be deemed to have
entered into an employment agreement (the "Subsidiary Employment Agreement")
identical to this Agreement except for hours of employment (which shall total 40
hours as between the Employer and all Subsidiaries) and compensation and fringe
benefits (which shall be determined and allocated in accordance with this
Agreement), or as the context otherwise requires. In the event Employer and such
Subsidiary are unable to agree on such Subsidiary's contribution towards
Employee's compensation and/or fringe benefits, such contribution shall be pro
rated on the basis of the total hours worked by Employee for such Subsidiary in
any period compared to the total hours worked by Employee for Employer and any
other Subsidiary during the same period. For the purpose of such contribution
allocation, Employee's compensation shall include all compensation and fringe
benefits payable to him hereunder (including termination payments) and, to the
extent practicable, Employee's reimbursable expenses shall be allocated to the
Employer or Subsidiary for which such expenses were incurred or which otherwise
benefited from the services relating to such expenses.
ARTICLE THREE
Compensation
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Section 3.01. Base Compensation. As base compensation for services rendered
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under this Agreement, the Employee shall initially be entitled to receive from
the Employer a base salary of One Hundred and Twenty Five Thousand and 00/100's
Dollars ($125,000.00) per year, payable in fifty-two (52) equal weekly
installments of Two Thousand Three Dollars and 84/100's ($2,403.84) each week
commencing on February 9, 2001 and continuing weekly during the period of
employment, prorated for any partial employment period.
Section 3.02. Salary Increases. For any successive one (1) year term of
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this Agreement after the first, the Employee may receive a salary increase in an
amount, if any, determined in the sole discretion of the Board of Directors of
the Employer.
Section 3.03. Overtime Compensation. Employee shall be a salaried employee
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of the Employer and shall not be entitled to overtime compensation.
Section 3.04. Bonuses. Employee shall be eligible to receive bonus
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compensation in such amounts and at such times, if any, as the Board of
Directors may determine in its sole and absolute judgment and discretion.
ARTICLE FOUR
Fringe Benefits
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Section 4.01. Vacation Pay. The Employee shall be entitled to three (3)
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weeks vacation annually, with full pay, to be taken at such time or times as
shall be mutually convenient to the Employer and the Employee.
Section 4.02. Holidays. The Employee shall be entitled to a holiday with
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full pay on each day other than a Saturday or Sunday on which national banking
associations in the State of Wisconsin are closed.
Section 4.03. Paid Sick Leave. The Employee shall be entitled to five (4)
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sick days each year, with full pay.
Section 4.04. Medical and Insurance Benefits. During the term of this
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Agreement, the Employee shall be entitled to health and hospitalization
insurance and other benefits in at least the same amounts and with the same
benefits as Employee received from Employer and/or any one or more of its
Subsidiaries immediately prior to the effective date of this Agreement or such
additional amounts and/or benefits as Employer may furnish to the other
employees and executives of the Employer from time to time during the term of
this Agreement. Employee shall be entitled to participate in and receive the
benefits of any plan of the Employer relating to hospital, surgical, medical and
dental coverage or reimbursements; group life insurance, accidental death and
dismemberment, and disability insurance; or any other plans, benefits and
privileges, together with such other and additional fringe benefits and such
improvements to existing benefits as the Employer may make available to the
employees and executives of the Employer, now existing or which may hereafter
come into existence during the term of this Agreement.
Section 4.05. Retirement Benefits. During the term of this Agreement, the
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Employee shall be entitled to participate in and receive the benefits of any
stock option, profit-sharing, or other plans, benefits, and privileges given the
employees and executives of the Employer, to the extent commensurate with his
then duties and responsibilities.
Section 4.06. Additional Benefits. To the extent practicable and not in
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violation of any applicable federal or state law, regulation or ordinance,
including but not limited to ERISA, Employee shall be entitled to the benefits
described in Sections 4.04 and 4.05 above in at least the same amounts and with
the same benefits as such benefits are provided to the employees and executives
of any one or more of the Subsidiaries. Notwithstanding the foregoing, Employer
shall not be required to provide any such additional benefits if the provision
thereof would require Employer to increase its benefits to all or substantially
all of its other employees.
Section 4.07. Life Insurance. During the term of this Agreement, Employer
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will pay to Employee the term cost of a life insurance policy on the life of
Employee in the face amount of Five Hundred Thousand ($500,000); provided,
however, that Employer shall not be required to pay more than One Thousand
($1,000) Dollars per calendar year for such term cost.
ARTICLE FIVE
Expenses
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Subject to such limitations as may be reasonably established by the Board
of Directors of Employer, Employer shall pay all reasonable travel and other
expenses incident to the rendering of services by Employee hereunder, consistent
with Employer's prior practice, or, if any such expenses are paid in the first
instance by Employee, Employer will reimburse him therefore on presentation of
expense accounts and appropriate documentation in accordance with the customary
executive procedures of Employer, provided such expenses are deductible by the
Employer for purposes of federal income taxation. If such expenses are paid in
the first instance by Employee, the Employer shall promptly reimburse Employee
after he has furnished the Employer such receipts and other documentation or
evidence of the incurred expense as is consistent with the customary executive
procedures of the Employer and as shall be required in order to satisfy the
rules and regulations of the Internal Revenue Service with respect to the
substantiation of such item of expense for federal income tax deduction
purposes.
ARTICLE SIX
Termination
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Section 6.01. Automatic Termination. This Agreement shall automatically
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terminate upon the death of the Employee or upon the dissolution of the
Employer, unless such dissolution is the result of a corporate event involving a
merger or consolidation.
Section 6.02. Termination By Employee and/or Employer. Notwithstanding any
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provision of this Agreement to the contrary, this Agreement may be terminated at
any time upon the mutual written agreement of the parties, by either party upon
thirty (30) days' prior written notice to the other, or by the Employer upon
written notice to Employee that the termination is for "cause." Termination by
any party shall be without prejudice to any other remedy to which such party may
be entitled either at law, in equity, or under this Agreement. "Cause" shall
mean any one or more of the following:
(a) Gross misconduct by Employee, or material failure by Employee to
perform his obligations in accordance with this Agreement, as determined by
the Employer, where such material failure is either of a nature that it
cannot reasonably be cured within thirty (30) days or, if reasonably
curable within such period, such material failure continues for thirty (30)
days after written notice thereof by Employer to Employee.
(b) Conviction of, or pleading of nolo contendere to, any felony.
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(c) Total disability of Employee for a period of thirty (30) days in
any one hundred eighty (180) day period. If Employee is covered by a
disability insurance policy pursuant to which he would receive benefits,
the term "total disability" shall have the meaning set forth in such
policy. If he is not covered by a disability insurance policy, "total
disability" shall be defined as the inability to perform the normal and
ordinary duties of Employee as such duties are defined in this Agreement.
(d) Permanent or prolonged absence by Employee from the Employer
which would, in the opinion of the Employer, prevent Employee from
discharging his obligations hereunder. Prolonged absence shall be defined
as absence of fifteen (15) business days or more in any one hundred twenty
(120) day period without reasonable explanation satisfactory to the Board
of Directors of the Employer. Employee absences pursuant to Sections 4.01,
4.02 and/or 4.03 above shall not be included as a "prolonged absence."
(e) Chronic illness, disability, failing health, alcoholism or
substance abuse of Employee which materially affects the ability of
Employee to perform his duties under this Agreement.
(f) If irreconcilable differences exist between Employee and Employer
or its officers and/or directors.
(g) Material breach by Employee of any provision of this Agreement,
where such material breach is either of a nature that it cannot reasonably
be cured within thirty (30) days or, if reasonably curable within such
period, such material breach continues for thirty (30) days after written
notice thereof by Employer to Employee.
Section 6.03. Effect of Termination. In the event of the termination of
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this Agreement prior to the completion of the term of employment specified
herein, the Employee shall be entitled to the compensation earned by him prior
to the date of termination as provided for in this Agreement computed pro-rata
up to and including such date. Except as provided in Section 6.04 below, the
Employee shall be entitled to no further compensation as of the date of
termination. If the Employee dies prior to the expiration of the term of
employment, any moneys that may be due him from the Employer under this
Agreement on or after the date of his death shall be paid to his executors,
administrators, heirs, personal representatives, successors, and assigns.
Termination of this Agreement shall not prejudice any remedy which either party
may have at law, in equity, or under this Agreement.
Section 6.04. Termination Payments. In the event of the termination of this
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Agreement during the initial term hereof other than either termination by
Employee or termination by Employer for material breach of this Agreement by
Employee, Employee shall be entitled to receive all base compensation, as
provided in Section 3.01 above, which otherwise would have been received by him
for the remainder of the initial term hereof, payable at the same times as
provided in Section 3.01 above. In the event of the termination of this
Agreement during any extension term hereof other than either termination by
Employee or termination by Employer for material breach of this Agreement by
Employee, Employee shall be entitled to receive six (6) months' base
compensation at the base compensation levels applicable as of the time of such
termination, payable at the same times as provided in Section 3.01 above. For
the purposes of this Section, "material breach of this Agreement by Employee"
shall mean any event described in Paragraphs (a), (b), (d) and/or (g) of Section
6.02 above (after the giving of such notice and the expiration of such cure
periods as may be provided therein). Notwithstanding the foregoing, (1) Employer
may pre-pay all or any portion of such compensation with such amount discounted
to present value using an interest rate of ten (10%) percent per annum; and (2)
all such payments shall terminate upon Employee's breach of any provision of
Article Seven below.
ARTICLE SEVEN
Intellectual Property and Competitive Activities
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Section 7.01. Ownership of Intellectual Property. All inventions,
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discoveries, improvements, designs, apparatus, practices, processes, methods,
products, development of ideas, development of concepts, development of codes,
workings of computer programs and/or software, whether patentable or not, and
all materials made, developed, perfected, devised, conceived or first reduced to
practice by Employee, whether copyrightable or not, either solely by the
Employee or jointly or in conjunction with others, prior to or during the term
of this Agreement and in the course of or in any way connected with the business
of the Employer (hereinafter individually or collectively called "Intellectual
Property"), shall be the sole and exclusive property of the Employer or its
nominee. Employee hereby assigns to Employer any and all interest he now has or
may have, either individually, jointly or in conjunction with others, or
otherwise, in and to any such Intellectual Property. The Employee shall promptly
disclose to the Employer in writing complete information relative to any and all
such Intellectual Property.
Section 7.02. Power of Attorney. During the term of this Agreement and
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thereafter within five (5) days after receipt of Employer's request therefore,
Employee shall execute, acknowledge and swear to any and all Letters Patent of
the United States and/or of foreign countries, copyrights, trademarks,
fictitious and assumed name certificates, or the equivalent for any and all
Intellectual Property and all applications, amendments, modifications,
assignments, conveyances, statements, forms, schedules, filings and other
instruments relating thereto, which Employer shall deem necessary or convenient.
Employee hereby makes, constitutes and appoints Employer, or such one or more
persons as the Board of Directors of Employer shall designate in writing, his
attorney-in-fact, with full power of substitution, for the purpose of executing,
acknowledging, swearing to and filing any and all such instruments. The
foregoing power of attorney is coupled with an interest and shall be irrevocable
and survive the death or disability of the Employee and the merger,
consolidation, reorganization or liquidation of the Employer. Employee shall
execute and deliver to Employer within five (5) days after receipt of Employer's
request therefore, such further designations, powers of attorney and other
instruments as Employer deems necessary or desirable to carry out the provisions
of this Section.
Section 7.03. Waiver by Employer. If Employee, during the course of his
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employment by Employer, shall make an invention covered by the terms of this
Agreement, and shall make a full and complete disclosure thereof to Employer;
and if Employer, after such disclosure, shall state in writing over the
signature of the Directors of the Employer, that Employer is not interested in
such invention; then Employee shall be free to make such use of any such
invention as Employee may desire, free of all claims whatsoever on the part of
Employer.
Section 7.04. Confidentiality. Employee shall not directly or indirectly
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disclose or use at any time, either during or subsequent to the term of this
Agreement, any secret or confidential information, knowledge, or data of
Employer (whether or not obtained, acquired, or developed by Employee),
including but not limited to (a) the Intellectual Property, (b) the business of
the Employer, its agents, suppliers or other companies with which the Employer
may be cooperating and (c) the plans, manufacturing methods, processes,
techniques, products or research activities, ideas, concepts, codes or workings
of computer programs and/or software which the Employee may have gained during
his period of employment, which are not generally known to the public or
recognized as standard practices, unless he shall first secure the written
consent of Employer.
Section 7.05. Employee's Waiver of Rights and Claims. Employee shall not,
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at any time during or after the termination of this Agreement for any reason
whatsoever, have or claim any right, title, or interest in or to any of the
Intellectual Property or any trademark or trade name or any other names or marks
belonging to or used by Employer, and never shall have or claim any right,
title, or interest in or to any material or matter of any sort prepared for or
used in connection with the advertising, broadcasting, or promotion of the
products or services of Employer, whether produced, prepared, published, or
broadcast in whole or in part by Employee; it being the intention of this
Agreement that Employee shall, and hereby does, recognize that Employer now has
and shall hereafter have and retain the sole and exclusive rights in any and all
such Intellectual Property, trademarks, trade names, and other matters
hereinbefore referred to.
Section 7.06. Surrender of Documents. Upon termination of this Agreement
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for any reason whatsoever, Employee shall turn over to Employer all notes,
memoranda, notebooks, records, letters, forms, lists, calculations, blueprints,
specifications, designs, drawings, software, computer programs, computer files,
or other documents relating to the Intellectual Property and any other notes,
memoranda, notebooks, drawings, software, computer programs, or other documents
of Employer in the possession or control of Employee, including but not limited
to any and all documents relating to Employer's customers, distributors,
distribution systems, inventions, or patentable or copyrightable materials; it
being agreed that the same and all information contained therein are at all
times the property of the Employer.
Section 7.07. Noncompetition Agreement. Employee agrees that during the
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term of this Agreement and for the Restricted Period (defined below), except
with the express consent of the Employer, he will not, directly or indirectly,
engage or participate in, become a director of, or render advisory or other
services for, or in connection with, or become interested in, or make any
financial investment in any Entity as hereinafter defined; provided, however,
that the Employee shall not thereby be precluded or prohibited from owning
passive investments in the securities of any publicly traded Entity or from
owning five (5%) percent or less of the securities of any non-publicly-traded
Entity. By way of example and not limitation:
(a) During the term of this Agreement and during the Restricted
Period, Employee covenants and agrees that he will not, without Employer's
prior written consent, directly or indirectly or as a director, officer,
employee, partner, consultant, or otherwise in any way aid or assist or
have any interest in, or render advisory or other services for, or in
connection with, or make any financial investment in any Entity (as
hereinafter defined).
(b) Employee further covenants and agrees that during the Restricted
Period, he will not, directly or indirectly, employ, or knowingly permit
any Entity directly or indirectly controlled by him to employ, any person
employed by Employer at any time during the term of this Agreement or the
Restricted Period, or in any manner seek to induce any such person to leave
his or her employment with Employer.
(c) For the purposes of this Section, an "Entity" means any
corporation, partnership, joint venture, sole proprietorship, association,
syndicate, trust, business trust or other form of entity of whatsoever
nature, whether for profit or not-for-profit, which develops and/or sells
CAD/CAM software.
(d) For the purposes of this Section, "Restricted Period" means the
period immediately following the expiration of this Agreement or its
termination for any reason which is the greater of twelve (12) months or
the term of Employer's payments to Employee pursuant to Section 6.04 above.
Section 7.08. Covenants Enforceable in Equity. Employer and Employee have
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examined in detail the restrictive covenants and agreements contained in this
Article and agree that the restraints imposed upon Employee herein are not
unduly harsh or oppressive, are a material inducement to Employer to execute
this Agreement, and are reasonable in order to protect Employer and its
legitimate business interests. Any breach or evasion of any term or provision of
this Article shall be deemed to have caused immediate and irreparable injury to
Employer and will authorize recourse by Employer to injunctive relief and/or
specific performance, as well as to any and all other legal or equitable
remedies to which Employer may be entitled.
ARTICLE EIGHT
General Provisions
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Section 8.01. Notices. Any notices to be given hereunder by either party to
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the other may be effected either by personal delivery in writing or by mail,
registered or certified, postage prepaid with return receipt requested, to the
Employee (or to the Employee's spouse or estate upon the Employee's death) at
the Employee's last known address, and to the Employer at its principal office.
Notice delivered personally shall be deemed communicated as of actual receipt.
Mailed notices shall be deemed communicated as of five (5) days after mailing.
Section 8.02. Amendments. This Agreement may not be modified, changed,
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amended, or altered except in writing signed by the Employee or his duly
authorized representative, and by a duly authorized officer of the Employer.
Section 8.03. Inclusion of Entire Agreement Herein. This Agreement
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supersedes any and all other prior agreements, either oral or in writing, and
sets forth the entire agreement between the parties hereto, with respect to the
within subject matter. The signing of this Agreement by the parties constitutes
their mutual recognition that no other contract or agreements, oral or written,
except as are in writing, signed by the parties and attached hereto or
specifically incorporated herein, exists between them. Each party hereby
represents that he or it will not rely upon any agreement or understanding not
reduced to writing and incorporated in this Agreement.
Section 8.04. Independence Of Rights and Privileges. Except as expressly
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provided to the contrary herein or therein, the payment or obligation to pay any
monies, or the granting of any rights or privileges to Employee as provided in
this Agreement shall be independent of, in addition to and shall not in any way
affect, reduce, or be in lieu or derogation of any other monies payable and
rights and privileges accruing under any other agreements which now exist or may
hereafter exist from time to time between the Employer and the Employee.
Section 8.05. Law Governing Agreement. This Agreement shall be governed in
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all respects and be interpreted by and under the laws of the State of Wisconsin,
except to the extent that such law or laws may be preempted by applicable
federal law, including regulations, opinions, and duly issued orders, in which
event this Agreement shall be governed and interpreted by and under the federal
law or laws.
Section 8.06. Waivers. The failure of either party to insist upon the
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strict performance of any of the terms, conditions, and provisions of this
Agreement shall not be construed as a waiver or relinquishment of future
compliance therewith, and said terms, conditions, and provisions shall remain in
full force and effect. No waiver of any term or condition of this Agreement or
consent required or permitted on the part of either party shall be effective for
any purpose whatsoever unless such waiver is in writing and signed by such
waiving party. No course of conduct between the Employer and the Employee and no
delay or omission of the Employer or the Employee to exercise any right or power
granted under this Agreement shall impair the subsequent exercise of any such
right or power, or be construed to be a waiver of any default or any
acquiescence in or consent to the curing of any default or of any other right or
power that shall have arisen; and every power and remedy granted by law and by
this Agreement to any party may be exercised from time to time, and as often as
may be deemed expedient.
Section 8.07. Successors. This Agreement shall inure to the benefit of and
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be binding upon the Employee, and, to the extent applicable, his heirs, assigns,
executors, and personal representatives, and the Employer, its successors and
assigns, including without limitation any person, partnership, or corporation
which may acquire all or substantially all of the Employer's assets and
business, or with and into which the Employer may be consolidated or merged.
This Agreement is personal to each of the parties and neither party may assign
or delegate any of his or its rights or obligations hereunder without the prior
written consent of the other party, and neither the Employee nor his
beneficiaries shall have the right to encumber, commute, borrow against, dispose
of, or assign the right to receive payments hereunder. Except in so far as this
provision may be contrary to applicable law, no involuntary sale, transfer,
alienation, assignment, pledge, collateralization, or attachment of any monies
or benefits payable to Employee hereunder shall be valid or recognized by the
Employer.
Section 8.08. Arbitration. In the event that any dispute should arise
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between the parties regarding the meaning or effect of this Agreement, which
dispute cannot be resolved by the parties, the parties shall appoint a panel of
three persons as arbitrators. The Employee shall appoint one such arbitrator,
the Employer shall appoint another, and the third shall be appointed by the
first two arbitrators. Proceedings under this Section may be initiated by either
party informing the other in writing of the necessity or desirability of
arbitration and the subject matter of the arbitration. The parties shall select
the first two arbitrators within thirty (30) days after such notice has been
sent. The panel of two arbitrators shall select the third arbitrator within
thirty (30) days after their appointment from a list or lists of eligible
persons submitted to them by the parties. Proceedings under this Section shall
be commenced and pursued as expeditiously as possible. The parties shall
compensate the arbitrators selected by him or it. All other costs of the
arbitration shall be borne equally between the parties. All proceedings, the
enforceability of any award, and all other matters pertaining to the arbitration
shall be governed by the Uniform Arbitration Act in force in the State of
Wisconsin or any applicable succeeding legislation.
Section 8.09. Gender and Number. Whenever used herein, the singular shall
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include the plural, the plural the singular and the use of any gender shall be
applicable to all genders.
Section 8.10. Captions. The captions set forth in this Agreement have been
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used solely for convenience of reference and shall not control or affect the
meaning or interpretation of any of the provisions.
Section 8.11. Counterparts. This Agreement may be executed in one or more
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counterparts, each of which when fully executed shall be deemed an original
hereof.
Section 8.12. Severability of Provisions. If any term, covenant, condition
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or provision of this Agreement or the application thereof to any person or
circumstance shall, at any time, or to any extent, be invalid or unenforceable,
the remainder of this Agreement or the application of such term or provision to
persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term, covenant, condition
and provision of this Agreement shall be valid and enforceable to the fullest
extent permitted by law.
Section 8.13. Construction. Employee acknowledges that he has had
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sufficient opportunity to consult with legal counsel and with such other experts
and advisors as he has deemed necessary in connection with the negotiation,
execution and delivery of this Agreement. This Agreement shall be construed
without regard to any presumption or rule requiring that it be construed against
the party causing it or any part thereof to be drafted.
Section 8.14. Exercise of Employer Rights. The parties acknowledge that
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Employee may serve as a Director and President and/or other officers of
Employer. Notwithstanding anything in this Agreement expressly or by implication
to the contrary, including by way of example and not limitation any references
to the "sole" or "sole and absolute" judgment, discretion or determination of
Employer, Employee may not exercise any rights of Employer pursuant to this
Agreement whether as a Director, President or other officer of Employer. For the
purposes of the determination, discretion, approval or consent of, or notice to
the Employer under this Agreement, "Employer" shall mean a majority of the Board
of Directors of Employer, other than Employee if Employee is serving as a
Director of Employer, or such one or more designated representatives of a
majority of the Board of Directors of Employer, other than Employee if Employee
is serving as a Director of Employer, as such Board shall designate in writing
from time to time.
Section 8.15. Submission of Agreement. The submission of this Agreement for
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examination does not constitute a reservation of or option for employment with
Employer, and this Agreement shall become effective as an employment agreement
only upon the execution thereof by both Employee and Employer and delivery of
such executed Agreement by each party to the other.
IN WITNESS WHEREOF, the parties have executed this Agreement at New Berlin,
Wisconsin, on the fourth (4th) day of December, 2000, with the intent to be
legally bound.
ATTEST: EMPLOYER:
By: /s/Xxxxxxx X. Xxxxx III By: /s/Xxxxxxx X. Xxxxx
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Secretary President
(Corporate Seal)
EMPLOYEE:
By: /s/Xxxxxxx X. Xxxxx III By: /s/Xxxxxxx X. Xxxxx
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Witness Xxxxxxx X. Xxxxx
CONSENT AND ACKNOWLEDGEMENT OF
MICRO ESTIMATING SYSTEMS, INC.
I agree to the attached Employment Agreement by and between ONCOURSE
TECHNOLOGIES, INC., as the Employer, and XXXXXXX X. XXXXX, as the Employee,
dated December 4, 2000 on behalf of Micro Estimating Systems, Inc., a wholly-
owned subsidiary of OnCourse Technologies, Inc. In the event that MICRO
ESTIMATING SYSTEMS, INC. requests any services of Employee, it agrees to pay for
such services in accordance with Section 2.05 and to be bound to all of the
terms and provisions of said Employment Agreement to the extent they relate to
the company.
I AGREE TO THE FOREGOING ON BEHALF OF
MICRO ESTIMATING SYSTEMS, INC.
Dated:December 4, 2000 /s/Xxxxxxx X. Xxxxx III
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Xxxxxxx X. Xxxxx III
