EMPLOYMENT CONTRACT
This employment agreement is made effective for all purposes and in all
respects as of the 1st day of November, 1997, by and between Dimensional Visions
Group, Ltd.., an Delaware corporation (hereinafter referred to as the
"Employer") and Xxxxx X. Xxxxxx, (hereinafter referred to as the "Employee").
WHEREAS, Employer desires to employ Employee in the capacity of SeniorVice
President, Engineering or in any other position consistent with Employee's
status;
WHEREAS, Employee desires to be employed by Employer in the aforesaid
capacity; and
WHEREAS, Employer and Employee desire to set forth in writing the terms and
conditions of their agreements and understandings;
NOW, THEREFORE, in consideration of the foregoing, of the mutual promises
herein contained, and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties, intending legally to
be bound, agree as follows:
1. TERM OF EMPLOYMENT. Employer shall employ Employee in the capacity set
forth above. The employment shall commence on November 1, 1997 and terminate on
November 1, 2000 unless sooner terminated in accordance with the provisions of
paragraph 9. After November 1, 2000, this Agreement and all its terms and
provisions shall be automatically extended from month-to-month, unless sooner
terminated in accordance with the provisions of this contract.
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2. DUTIES OF EMPLOYEE.
(a) In accepting employment from Employer, Employee shall undertake
the responsibility of performing for and on behalf of Employer whatever duties
shall be assigned to Employee by Employer at any time and from time to time. It
is further understood and agreed that any modification in, or expression of,
Employee's duties shall not result in any modification in, or increase or
decrease of, Employee's compensation as stated in paragraph 3, unless Employer
specifically shall agree otherwise in a duly executed amendment of this
Agreement.
(b) Employee covenants and agrees that at all times during the term of
this Agreement, Employee shall devote his/her full-time efforts to his/her
duties as an employee of the Employer. Employee further covenants and agrees
that he/she will not, directly or indirectly, engage or participate in any
activities at any time during the term of this Agreement which are directly
related the Company's products and are therefore in conflict with the best
interests of Employer.
3. COMPENSATION. As compensation for the services to be rendered by
Employee for Employer under this Agreement, Employee shall be paid the following
annual salary, on a twice a month basis, during the term hereof: $68,000.00.
4. ADDITIONAL BENEFITS. In addition to, and not in limitation of, the
compensation referred to in paragraph 3, Employee shall receive the following
additional benefits: such group health insurance as may be provided by Employer
from time to time; bonus payment as may be determined by Employer from time to
time. Employee shall have the right to vacation, holidays and other paid leave
as permitted by the employee policy manual in effect upon the signing of this
Agreement.
5. DISCLOSURE OF INFORMATION. Employee acknowledges that in and as a result
of his/her employment hereunder, he/she will be making use of, acquiring and/or
adding to confidential
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information of a special and unique nature and value relating to such matters as
Employer's trade secrets, systems, procedures, manuals, confidential reports,
and lists of clients, and the fees paid by them. As a material inducement to
Employer to enter into this Agreement and to pay to Employee the compensation
stated in paragraph 3, as well as any additional benefits stated in paragraph 4,
Employee covenants and agrees that he/she shall not, at any time during or
following the term of his/her employment, directly or indirectly divulge or
disclose for any purpose whatsoever any confidential information labeled
confidntial that has been obtained by, and disclosed to, him/her as a result of
his/her employment by Employer. In the event of a breach or threatened breach by
Employee of any of the provisions of this paragraph 5, Employer, in addition to
and not in limitation of, any other rights, remedies, or damages available to
Employer at law or in equity, shall be entitled to a permanent injunction in
order to prevent or restrain any such breach by Employee or by Employee's
partners, agents, representatives, servants, employers, employees and/or any and
all persons directly or indirectly acting for or with him/her.
6. COVENANTS AGAINST COMPETITION. Employee acknowledges that the services
he/she is to render are of a special and unusual character with a unique value
to Employer, the loss of which cannot adequately be compensated by damages in an
action at law. In view of the unique value to Employer of the services of
Employee for which Employer has contracted hereunder, because of the
confidential information to be obtained by or disclosed to Employee, as
hereinabove set forth, and as a material inducement to Employer to enter into
this Agreement and to pay to Employee the compensation stated in paragraph 3, as
well as any additional benefits stated in paragraph 4, Employee covenants and
agrees as follows:
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(a) During Employee's employment and for a period of two (2) years
after he ceases to be employed by Employer, Employee shall not, directly or
indirectly, solicit or divert business from, or attempt to convert to other
methods of using the same or similar products or services provided by Employer,
any client, account, or location of Employer with which Employee has had any
contact as a result of his/her employment with Employer.
(b) Except for the Company ceasing to do business or is in the
danger of ceasing to do be a going concern (in the sole opinion of the
employee), during Employee's employment and for a period of two (2) years after
he/she ceases to be employed by Employer, Employee shall not, directly or
indirectly, engage in the business of Employer or similar or related business in
competition with Employer, in any and all geographic areas where Employer is
actually engaged or intends to be engaged in business, or where the Employer
maintains sales or service representatives or employees.
(c) During Employee's employment and for a period of two (2)
years after he ceases to be employed by Employer, Employee shall not, directly
or indirectly, solicit for employment or employ any employee of Employer.
7. ACCOUNTING FOR PROFITS. Employee covenants and agrees that if he shall
violate any of his covenants or agreements under paragraph 6, Employer shall be
entitled to an accounting and repayment of all profits, compensation,
commissions, remuneration, or other benefits that Employee directly or
indirectly has realized and/or may realize as a result of, growing out of, or in
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connection with, any such violation. These remedies shall be in addition to, and
not in limitation of, any injunctive relief or other rights or remedies to which
Employer is or may be entitled at law, in equity, or under this Agreement.
8. REASONABLENESS OF RESTRICTIONS.
(a) Employee has carefully read and considered the provisions of
paragraphs 5, 6 and 7, and, having done so, agrees that the restrictions set
forth in these paragraphs, including, but not limited to, the time period of
restriction and the geographical areas of restriction set forth in paragraph 6,
are fair and reasonable and are reasonably required for the protection of the
interests of Employer and its officers, directors, and other employees.
(b) In the event that, notwithstanding the foregoing, any of the
provisions of paragraphs 5, 6 and 7 shall be held to be invalid or
unenforceable, the remaining provisions thereof shall nevertheless continue to
be valid and enforceable as though the invalid or unenforceable parts had not
been included therein. In the event that any provision of paragraph 5 or 6
relating to the time period and/or the areas of restriction shall be declared by
arbitration to exceed the maximum time period or areas such court deems
reasonable and enforceable, the time period and/or areas of restriction deemed
reasonable and enforceable by the court shall become and thereafter be the
maximum time period and/or areas.
9. TERMINATION
A. Notwithstanding any other provision hereof, Employer may terminate
Employee's employment under this Agreement at any time for cause. The
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termination shall be evidenced by written notice thereof to the Employee, which
shall specify the cause for termination. For purposes hereof, the term "cause"
shall include, without limitation, the inability of Employee, through sickness
or other incapacity, to perform his duties under this Agreement for a period in
excess of ninety (90) substantially consecutive days; dishonesty; theft;
conviction of a felony; intoxication; unethical business conduct including
disruption of Employer's management of its business; and a material breach of
this Agreement. The term "cause" shall also include the failure of Employee for
any reason, within ten (10) days after receipt by Employee of written notice
thereof from Employer, to correct, cease, or otherwise alter any
insubordination, failure to comply with instructions, or other action or
omission to act that in the opinion of the Employer does or may materially or
adversely affect its business or operations. This contract will terminate on the
death of Employee.
B. Notice of Termination. Any purported termination by the Company
shall be communicated by written Notice of Termination to the other party hereto
in accordance with Section 17 hereof (except if the event given rise to
termination is Employee's death). For purposes of this Agreement, a "Notice of
Termination" shall mean a notice which shall indicate the specific termination
provision in this Agreement relied upon and shall set forth in reasonable detail
the facts and circumstances claimed to provide a basis for termination of
Employee's employment under the provision so indicated.
C. Compensation Upon Termination
1. If the Employee's employment by the Company shall be
terminated without cause during the three year term of this Agreement, Employee
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shall be entitled to the payment of one -half her compensation at the then
current level for the remainder of the term. In the event of the sale, transfer
or reorganization of the Company, any agreement for such shall include a
commitment by the surviving entity to continue payment of such compensation for
the remainder of the said three year term. If Employee's employment shall be
terminated without cause following the expiration of his initial three year term
of employment:
(I) The Company shall continue to pay the Employee an amount
equal one half of the Employee's base salary at the rate in effect at the time
Notice of Termination is given for a period of six months, said payments to be
made at the same time and in the same manner, as if Employee had remained in the
employ of the Company; plus
(ii) Any bonus to which the Employee would otherwise be
entitled, pro rated to the effective date of termination; plus
(iii) All other amounts payable to the Employee and all
benefits payable to him under any other plan or agreement relating to retirement
benefits or to compensation previously earned and deferred, in accordance with
the respective terms of such plans or agreements, pro rated to a date six (6)
months following the date of termination.
10. BURDEN AND BENEFIT. This Agreement shall be binding upon, and shall
inure to the benefit of, Employer and Employee, and their respective heirs,
personal and legal representatives, successors, and assigns.
11. GOVERNING LAW. In view of the fact that the principal office of
Employer is located in Arizona, it is understood and agreed that the
construction and interpretation of this Agreement shall at all times and in all
respects be governed by the laws of the State of Arizona.
12. ARBITRATION. Employer and Employee agree that all disputes under this
contract will be subject to arbitration under the rules of the American
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Arbitration Association. Any such arbitration will be conducted by three
arbitrators sitting in Phoenix, Arizona, with all costs, expenses and attorney's
fees to be paid by the losing party. Any decision of the arbitrators shall be
final and may be entered as judgement in a Court of competent jurisdiction.
13. SEVERABILITY. The provisions of this Agreement, including particularly
but not solely, the provisions of paragraphs 5, 6 and 7, shall be deemed
severable, and the invalidity or unenforceability of any one or more of the
provisions of this Agreement shall not affect the validity and enforceability of
the other provisions.
14. EMPLOYER. As used herein, the term "Employer" shall include any
corporation that is at any time the parent or a subsidiary of Dimensional
Visions Group, Ltd.. for which Employee is providing services in any form during
the term of his/her employment under this Agreement.
15. NOTICE. Any notice required to be given shall be sufficient if it is in
writing and sent by certified or registered mail, return receipt requested,
first-class postage prepaid, to his/her residence in the case of Employee, and
to its principal office in Arizona in the case of the Employer.
16. ENTIRE AGREEMENT. This Agreement contains the entire agreement and
understanding by and between Employer and Employee with respect to the
employment of Employee, and no representations, promises, agreements, or
understandings, written or oral, not contained herein shall be of any force or
effect. No change or modification of this Agreement shall be valid or binding
unless it is in writing and signed by the intended to be bound. No waiver of any
provision of this Agreement shall be valid unless it is in writing and signed by
the party against whom the waiver is sought to be enforced. No valid waiver of
any provision of this Agreement at any time shall be deemed a waiver of any
other provision of this Agreement at such time or at any other time.
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IN WITNESS WHEREOF, Employer and Employee have duly executed this Agreement
as of the day and year first above written.
DIMENSIONAL VISIONS GROUP, LTD.
SIGNATURE:______________________________
TITLE: President and C.E.O.
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EMPLOYEE SIGNATURE
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