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EXHIBIT 10.5
EMPLOYMENT AND NON-COMPETITION AGREEMENT
THIS EMPLOYMENT AND NON-COMPETITION AGREEMENT (the "Agreement") is made
as of this 21st day of June, 1999, by and between LORECOM Technologies, Inc., an
Oklahoma corporation ("LORECOM") and Xxxx Xxxxxxx ("Executive").
RECITALS:
WHEREAS, LORECOM's Board of Directors has determined that it is
appropriate to reinforce and encourage the continued attention and dedication of
certain members of LORECOM's management, including the Executive, to their
assigned duties without distractions; and
WHEREAS, this Agreement sets forth certain compensation and other
benefits to be provided to Executive in accordance with the terms hereof.
NOW, THEREFORE, in consideration of the foregoing and the agreements,
covenants and conditions set forth herein, the Executive and LORECOM hereby
agree as follows:
I. EMPLOYMENT
A. Employment.
1. LORECOM hereby employs, engages and hires Executive,
and Executive hereby accepts employment, upon the
terms and conditions set forth in this Agreement. The
Executive shall serve as Vice President of Operations
and Chief Technical Officer ("VPO & CTO"). The
Executive shall have and fully perform such duties
and responsibilities that are commensurate with his
position as may be, from time to time, assigned to
him by the Board of Directors of LORECOM.
2. In addition, the Executive shall provide advice,
consultation and services to any other entities
majority owned or majority controlled by LORECOM now
or in the future (together "Affiliates") as may
reasonably be requested by the Board of Directors of
LORECOM.
B. Activities and Duties During Employment. Executive represents
and warrants to LORECOM that he is free to accept employment
with LORECOM, and that he has no prior or other commitments or
obligations of any kind to anyone else which would hinder or
interfere with his acceptance of his obligations under this
Agreement, or the exercise of his best efforts as an officer
and employee of LORECOM, except as set forth herein. During
the Employment Term (as defined below), Executive agrees:
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1. To faithfully serve and further the interests of
LORECOM in every lawful way, giving honest, diligent,
loyal and cooperative service to LORECOM;
2. To comply with all reasonable rules and policies
which are consistent with the terms of this Agreement
and which, from time to time, may be adopted by
LORECOM and which are applicable to all other
executive officers of LORECOM; and
3. To devote all necessary business time, attention and
efforts to the faithful and diligent performance of
his services to LORECOM and its Affiliates, excluding
periods of vacation and sick leave; provided that
LORECOM acknowledges that the Executive may have a
continuing operational involvement in a pre-existing
venture so long as such operational involvement does
not materially interfere with the performance of
Executive's duties under this Agreement; provided
further, it is understood that Executive's
obligations to LORECOM shall have priority.
Notwithstanding the foregoing, Executive may: (i)
serve on the board of directors of other entities or
serve in any capacity with any civic, educational,
professional or charitable organization provided that
such service does not materially interfere or
conflict with his duties hereunder; and (ii) make and
manage personal investments of his choice.
C. Relocation. Executive's office and principal place of
employment and the principal office for LORECOM shall be
located in Oklahoma City, Oklahoma or such other location
mutually agreed to by Executive and LORECOM. LORECOM shall not
require Executive to relocate his residence or principal place
of employment and business office without his prior approval.
To the extent reasonably requested by the Board of Directors
of LORECOM, Executive shall travel to the offices of LORECOM
or its Affiliates or attend meetings, conferences,
exhibitions, trade shows, seminars and other similar business
related activities so long as he is given reasonable notice of
such travel and is reimbursed for the cost of such travel.
II. TERM
A. Term. The term of employment under this Agreement shall be
three (3) years, commencing on the date of the Agreement (such
term of employment, as it may be extended or terminated, is
herein referred to as the "Employment Term"), which Employment
Term shall automatically renew for additional one (1) year
periods unless terminated by Executive or LORECOM by written
notice not less than six (6) months prior to expiration of the
then-current term.
B. Termination During the Employment Term. Executive's employment
hereunder may terminate for any of the following reasons:
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1. Death. This Agreement shall terminate upon
Executive's death. If termination occurs pursuant to
this provision, Executive's estate shall be
compensated under Section II.D.2 hereof.
2. Cause. Termination by LORECOM of Executive's
employment for "Cause" shall mean termination based
upon Executive's (i) committing fraud, theft,
misappropriation, embezzlement, larceny or other
felony, willful misconduct, gross malfeasance or
breach of trust by the Executive resulting or
intended to result directly or indirectly in gain or
personal enrichment to the Executive at the expense
of LORECOM, (ii) committing any other crime involving
moral turpitude which materially impairs Executive's
ability to perform his duties or the business
reputation of LORECOM, or (iii) continued and
deliberate failure by the Executive to substantially
perform the Executive's employment duties with
LORECOM. However, anything in the preceding sentence
to the contrary notwithstanding, "Cause" shall not
include the following: (i) any act or omission that
was the result solely of poor business judgment or
simple negligence; (ii) any act or omission believed
by the Executive in good faith to have been in or not
opposed to the interests of LORECOM; (iii) any act or
omission in respect of which the Executive met the
applicable standard of conduct for indemnification
against liabilities and expenses under LORECOM's
Certificate of Incorporation; or (iv) any act or
omission which occurred more than 12 months prior to
LORECOM's giving to the Executive Notice of
Termination (as hereinafter defined), unless the
commission of such act or omission was not at the
time of commission or omission known to a majority of
the members of the Board of Directors of LORECOM, in
which case more than 12 months from the date the
commission or omission was known by a majority of the
members of the Board of Directors. If termination
occurs pursuant to this provision, Executive shall be
compensated under Section II.D.3 hereof.
3. Voluntary Termination. Executive may voluntarily
terminate employment at any time during the
Employment Term (a "Voluntary Termination"). If
termination occurs pursuant to this provision,
Executive shall be compensated under Section II.D.3
hereof.
4. Termination by LORECOM. LORECOM may terminate
Executive's employment for any reason during the
Employment Term hereof, including, but not limited
to, closing or selling LORECOM, provided, however,
that upon such termination, Executive will be
compensated as provided in Section II.D.1 hereof.
5. Good Reason. By the Executive upon ten (10) business
days notice to LORECOM for Good Reason, which notice
shall state the reason for
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termination. For the purpose of this Agreement, "Good
Reason" shall mean, other than for Cause: (i) a
demotion or reduction in the Executive's duties,
responsibilities or authority as VPO & CTO of LORECOM
without his written consent or the assignment to the
Executive of duties and responsibilities inconsistent
with his position as VPO & CTO of LORECOM without his
written consent or which diminishes his authority
without his written consent (together, the "Demotion
Actions"), and the Demotion Actions are not cured
within thirty (30) days after written notice of the
Demotion Actions from the Executive; (ii) the
relocation of the Executive's principal place of
employment, or the principal offices of LORECOM
outside of the Oklahoma City Metropolitan Area
without Executive's consent, or (iii) any material
failure by LORECOM to comply with the provisions of
this Agreement, including but not limited to, failure
to timely pay any part of Executive's compensation
(including salary or bonus) or provide the benefits
contemplated herein, and which is not remedied by
LORECOM within ten (10) business days after receipt
by LORECOM of written notice thereof from Executive.
If termination occurs pursuant to this provision, the
Executive shall be compensated under Section II.D.1
hereof.
6. Change of Control. By the Executive upon a Change of
Control. For the purpose of this Agreement, "Change
of Control" shall mean the occurrence of any of the
following:
(a) the Company consummates a merger or consolidation
which results 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) less then fifty percent (50%) 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
(b) a plan of complete liquidation of the Company or
an agreement for the sale or disposition by the
Company of (in one transaction or a series of
transactions) all or substantially all of the
Company's assets is consummated.
7. Notice of Termination. Any termination of Executive's
employment shall be communicated by written Notice of
Termination to the other party hereto in accordance
with this Section II.B.7. For purposes of this
Agreement, a "Notice of Termination" shall mean a
written notice which shall indicate the specific
termination provision in this Agreement relied upon
and which shall specify a date as Executive's last
day of employment (the "Termination Date").
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C. Cessation of Rights and Obligations: Survival of Certain
Provisions. On the date of expiration or earlier termination
of the Employment Term for any reason, all of the respective
rights, duties, obligations and covenants of the parties, as
set forth herein, shall, except as specifically provided
herein to the contrary, cease and become of no further force
or effect as of the date of said termination, and shall only
survive as expressly provided for herein.
D. Cessation of Compensation. In lieu of any severance under any
severance plan that LORECOM may then have in effect, and
subject to any amounts owed by the Executive to LORECOM under
any contract or agreement entered into after the date hereof,
LORECOM shall pay to the Executive, and the Executive shall be
entitled to receive, the following amounts within thirty (30)
days of the date of a termination of his employment:
1. Upon the termination of the Executive's employment
under the provisions of Sections II.B.4, II.B.5 and
II.B.6, the Executive shall be entitled to receive
his base salary for the remaining term of this
Agreement under Section II.A or two (2) years,
whichever period shall be greater (the "Continued
Compensation Period") plus, for each year in the
Continued Compensation Period, a bonus equal to the
highest annual bonus paid to the Executive for any
preceding calendar year, prorated for any partial
years, plus prorated vacation pay for the Continued
Compensation Period and expense reimbursement through
the Termination Date. In addition, if permitted under
LORECOM's group health, life and disability insurance
coverage, Executive shall be entitled to continuation
of Executive's coverage thereunder (subject to such
changes in coverage as shall apply to LORECOM's
employees generally) for the one (1) year period
after the Termination Date at the cost of LORECOM or
if not so permitted, payment by LORECOM of the
premiums for group health insurance coverage
otherwise payable by Executive under the Consolidated
Omnibus Budget Reconciliation Act of 1985 ("COBRA").
It shall be a condition to Executive's right to
receive the payments described above that Executive
shall be in compliance with all of Executive's
obligations which survive termination hereof,
including without limitation those arising under
Article IV hereof, and Executive is not otherwise
receiving health insurance from another employer. In
addition, upon the Executive's termination, LORECOM
shall assign to the Executive the life insurance
policy described in Section III.F, except that, in
the event that the life insurance policy is part of a
group-term life insurance plan, LORECOM shall convert
the Executive's coverage thereunder into an
individual life insurance policy. The Executive
agrees that following the assignment of a life
insurance policy under this Section, the premiums
under any such insurance policy shall be paid by the
Executive. Thereafter, LORECOM and its Affiliates
shall have no further obligations to Executive,
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except as expressly provided otherwise pursuant to
the terms of any pension and welfare benefit plans
Executive is a participant in.
2. If Executive's employment is terminated during the
Employment Term by reason of death, LORECOM shall pay
to Executive's estate Executive's base salary for the
Continued Compensation Period, and any bonus for the
bonus period in which the Termination Date occurs
allocable to the period prior to the Termination
Date. Thereafter, LORECOM and its Affiliates shall
have no further obligations to Executive, except as
expressly provided otherwise pursuant to the terms of
any pension and welfare benefit plans Executive is a
participant in.
3. If Executive's employment is terminated by LORECOM
for Cause or as a result of a Voluntary Termination,
LORECOM shall pay Executive his base salary for a
period of one year after the Termination Date in the
Notice of Termination. In addition, if permitted
under LORECOM's group health, life and disability
insurance coverage, Executive shall be entitled to
continuation of Executive's coverage thereunder
(subject to such changes in coverage as shall apply
to LORECOM's employees generally) for the one (1)
year period after the Termination Date at the cost of
LORECOM or if not so permitted, payment by LORECOM of
the premiums for group health insurance coverage
otherwise payable by Executive under COBRA.
Thereafter, LORECOM and its Affiliates shall have no
further obligations to pay compensation under this
Agreement.
E. No Offset/No Mitigation of Damages. Notwithstanding anything
herein to the contrary, Executive shall have no obligation to
mitigate or seek other employment with respect to the payments
and benefits under this Agreement. LORECOM shall be obligated
to make the payments pursuant to this Section regardless of
any other employment.
III. COMPENSATION AND BENEFITS
A. Compensation.
1. During the Employment Term, LORECOM shall pay
Executive such salary and benefits as shall be agreed
upon each year between Executive and LORECOM. For the
first year of the Employment Term, LORECOM shall pay
Executive a base salary of One Hundred Ten Thousand
Dollars ($110,000.00) per year. LORECOM shall review
Executive's salary at least annually, and as a result
of such review, can not reduce the Executive's base
salary without his consent.
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2. LORECOM will, in addition to Executive's base salary,
pay Executive bonuses with respect to each calendar
year in the Employment Term up to the amount and
based upon the formula set forth in Exhibit A
attached hereto. The bonus payable hereunder shall be
paid within seventy-five (75) days of the end of the
applicable calendar year, unless LORECOM elects to
pay such amounts at an earlier time.
3. LORECOM will pay Executive a Ten Thousand Dollar
($10,000) bonus upon closing its initial public
offering.
B. Payment. All compensation shall be payable in intervals in
accordance with the general payroll payment practice of
LORECOM, but not less frequently than monthly. The
compensation shall be subject to such withholdings and
deductions by LORECOM as are required by law.
C. Business Expenses.
1. Reimbursement. LORECOM shall reimburse the Executive
for all reasonable, ordinary, and necessary business
expenses incurred by him in connection with the
performance of his duties hereunder, including, but
not limited to, ordinary and necessary travel
expenses, entertainment expenses and expenses
necessary to maintain his professional
certifications. The reimbursement of business
expenses will be governed by the policies for
LORECOM, and the terms otherwise set forth herein. In
addition, LORECOM shall reimburse the Executive for
reasonable country club dues and automobile expenses
not to exceed $500 for one automobile.
2. Accounting. The Executive shall provide LORECOM with
an accounting of his expenses, which accounting shall
clearly reflect which expenses were incurred for
proper business purposes in accordance with the
policies adopted by LORECOM, and as such are
reimbursable by LORECOM. The Executive shall provide
LORECOM with such other supporting documentation and
other substantiation of reimbursable expenses as will
conform to Internal Revenue Service or other
requirements. All such reimbursements shall be
payable by LORECOM to the Executive within a
reasonable time, but not more than 30 days, after
receipt by LORECOM of appropriate documentation
therefor.
D. Other Benefits. Except as otherwise provided herein, Executive
shall be entitled to participate in any retirement, pension,
profit-sharing, stock option, health plan, dental, vacation
and welfare or any other benefit plan or plans of LORECOM
which may now or hereafter be in effect for which all
employees of LORECOM performing comparable duties are
eligible, subject to the terms of such plans. In determining
the
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rights of the Executive under any such plan or program,
Executive shall for all purposes be deemed to be fully vested,
or if vesting is not permitted by law or regulation, LORECOM
shall pay or otherwise provide to Executive the benefits he
would have received if fully vested.
E. Vacation. Executive shall be entitled to up to four (4) weeks
of non-accruing paid vacation in each calendar year during the
Employment Term, provided however, that the Executive's 1999
calendar year vacation shall be prorated for the portion of
the calendar year remaining after the date hereof.
F. Life Insurance. LORECOM shall provide to Executive, at no cost
to Executive (other than taxes on the premiums paid by
LORECOM), term life insurance on the life of Executive for the
benefit of Executive's designated beneficiaries in the amount
of One Million Dollars ($1,000,000); provided however, if the
amount of the annual premium on such policy exceeds Two
Thousand Dollars ($2,000), the Executive shall reimburse
LORECOM for such excess.
G. Disability. LORECOM shall provide to Executive, at no cost to
Executive, a separate or group long-term disability policy
that provides an annual benefit in the amount provided to any
other executive officer of LORECOM.
IV. CONFIDENTIALITY AND NON-COMPETE AGREEMENT
A. Non-Disclosure of Confidential Information. Executive hereby
acknowledges and agrees that the duties and services to be
performed by Executive under this Agreement are special and
unique and that Executive has and will acquire, develop and
use information of a special and unique nature and value that
is not generally known to the public or to LORECOM's industry
including, but not limited to, certain records, secrets,
documentation, software programs, price lists, ledgers and
general information, employee records, mailing lists customer
lists, customer profiles, prospective customer lists, accounts
receivable and payable ledgers, financial and other records of
LORECOM or its Affiliates, information regarding their
customers or principals, and other similar matters (all such
information being hereinafter referred to as "Confidential
Information"). Executive further acknowledges and agrees that
the Confidential Information is of great value to LORECOM and
its Affiliates and that the restrictions and agreements
contained in this Agreement are reasonably necessary to
protect the Confidential Information and the goodwill of
LORECOM. Accordingly, Executive hereby agrees that:
1. Executive will not, during the Employment Term or at
any time thereafter, directly or indirectly, except
in connection with Executive's performance of his
duties under this Agreement, or as otherwise
authorized by LORECOM for its benefit or the benefit
of its Affiliates, divulge to any person, firm,
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corporation, limited liability company or
organization, other than LORECOM or its Affiliates
(hereinafter referred to as "Third Parties"), or use
or cause or authorize any Third Parties to use, the
Confidential Information, except as required by law;
and
2. Upon the termination of his Employment Term for any
reason whatsoever, Executive shall deliver or cause
to be delivered to LORECOM any and all Confidential
Information, including drawings, notebooks, keys,
data and other documents and materials belonging to
LORECOM or its Affiliates which is in his possession
or under his control relating to LORECOM or its
Affiliates, or the Business of LORECOM (as defined
herein), regardless of the medium upon which it is
stored, and will deliver to LORECOM upon such
termination of employment any other property of
LORECOM or its Affiliates which is in his possession
or under his control.
B. Restrictive Covenants.
1. Non-Competition Covenant.
(a) Executive acknowledges that the covenants
set forth in this Article IV are reasonable
in scope and essential to the preservation
of LORECOM. Executive also acknowledges that
the enforcement of the covenant set forth in
this Section IV.B. will not preclude
Executive from being gainfully employed in
such manner and to the extent as to provide
a standard of living for himself, the
members of his family and the others
dependent upon him of at least the level to
which he and they have become accustomed and
may expect. In addition, Executive
acknowledges that LORECOM and its Affiliates
have obtained an advantage over their
competitors as a result of their names,
locations and reputations that are
characterized by near permanent
relationships with customers, principals and
other contacts which they have developed at
great expense. Furthermore, Executive
acknowledges that competition by him
following the termination or expiration of
the Employment Term would impair the
operation of LORECOM and/or its Affiliates
beyond that which would arise from the
competition of an unrelated third party with
similar skills.
(b) Executive hereby agrees that he shall not,
during the period of this Agreement or for a
period during which he is being paid or has
been paid pursuant to the termination
provisions of this Agreement, directly or
indirectly, engage in or become directly or
indirectly interested in any proprietorship,
partnership, firm, trust, corporation,
limited liability company or other entity,
other than LORECOM or any
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Affiliate (whether as owner, partner,
trustee, beneficiary, stockholder, member,
officer, director, employee, independent
contractor, agent, servant, consultant,
lessor, lessee or otherwise) that competes
with LORECOM or an Affiliate in the
Prohibited Business within the county of
Oklahoma County, Oklahoma or any contiguous
county, other than an interest in a company
listed on a recognized stock exchange in an
amount which does not exceed one percent
(1%) of the outstanding stock of such
corporation. However, the noncompetition
provisions of this Section IV.B.1 shall not
apply if Executive is terminated pursuant to
Section II.B.4, or Executive terminates his
employment pursuant to Section II.B.6, of
this Agreement.
(c) For purposes of this Agreement, "Prohibited
Business" shall include all business
activities and ventures of LORECOM or its
Affiliates during the term of this Agreement
which generate more than 5% of the annual
consolidated gross revenues of LORECOM.
2. Non-Solicitation Covenant. Executive hereby covenants
and agrees that during a period which is the greater
of five (5) years from the date of this Agreement or
two (2) years following the end of the Employment
Term, he shall not: (i) solicit for the purpose of
selling goods and/or services competitive with or
similar to those offered by LORECOM or its Affiliates
during the Employment Term or endeavor to entice away
from LORECOM or any Affiliate any person, firm,
corporation, limited liability company or other
entity that was a customer of LORECOM or any
Affiliate at any time during his Employment Term;
(ii) induce, attempt to induce or hire any employee
(or any person who was an employee during the year
preceding the date of any solicitation) of LORECOM or
any Affiliate to leave the employ of LORECOM or any
Affiliate, or in any way interfere with the
relationship between any such employee and LORECOM or
any Affiliate; or (iii) directly or indirectly cause
any person that is a party to an agreement with
LORECOM or any Affiliate (including, but not limited
to, license, supply or sales contracts or
agreements), to terminate such agreements, not renew
such agreements when they expire or enter into
another similar agreement with another person or
entity. If the Employment Term is terminated by
LORECOM without Cause or by Executive for Good
Reason, the non-solicitation covenant set forth in
this Section IV.B.2. shall only apply for a period
which is two (2) years after the end of the
Employment Term.
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C. Remedies.
1. Injunctive Relief. Executive expressly acknowledges
and agrees that the business of LORECOM is highly
competitive and that a violation of any of the
provisions of Sections IV.A. or B. would cause
immediate and irreparable harm, loss and damage to
LORECOM and/or Affiliates not adequately compensable
by a monetary award. Executive further acknowledges
and agrees that the time periods and territorial
areas provided for herein are the minimum necessary
to adequately protect the business of LORECOM, the
enjoyment of the Confidential Information, the
goodwill of LORECOM, and/or Affiliates and the
enjoyment of the assets and business of LORECOM.
Without limiting any of the other remedies available
to LORECOM or any Affiliate at law or in equity, or
the right or ability of LORECOM, and/or Affiliates to
collect money damages, Executive agrees that any
actual or threatened violation of any of the
provisions of Sections IV.A. or B. may be immediately
restrained or enjoined by any court of competent
jurisdiction, and that a temporary restraining order
or emergency, preliminary or final injunction may be
issued in any court of competent jurisdiction, upon
twenty-four (24) hour notice and without bond.
Notwithstanding anything to the contrary contained in
this Agreement, the provisions of this Section shall
survive the termination of the Employment Term.
2. Enforcement. It is the desire of the parties that the
provisions of Sections IV.A. or B. be enforced to the
fullest extent permissible under the laws and public
policies in each jurisdiction in which enforcement
might be sought. Accordingly, if any particular
portion of Sections IV.A. or B. shall ever be
adjudicated as invalid or unenforceable, or if the
application thereof to any party or circumstance
shall be adjudicated to be prohibited by or
invalidated by such laws or public policies, such
section or sections shall be (i) deemed amended to
delete therefrom such portions so adjudicated or (ii)
modified as determined appropriate by such a court,
such deletions or modifications to apply only with
respect to the operation of such section or sections
in the particular jurisdictions so adjudicating on
the parties and under the circumstances as to which
so adjudicated.
V. MISCELLANEOUS
A. Notices. All notices or other communications required or
permitted hereunder shall be in writing and shall be deemed
given, delivered and received (a) when delivered, if delivered
personally, (b) three days after mailing, when sent by
registered or certified mail, return receipt requested and
postage prepaid, (c) one business day after delivery to a
private courier service, when delivered to a private courier
service providing documented overnight service, and (d) on the
date of delivery if delivered by telecopy, receipt confirmed,
provided that a confirmation copy is sent on the next business
day by first class mail, postage prepaid, in each case
addressed as follows:
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To Executive at his home address.
With a copy to: [ ]
To LORECOM at: LORECOM Technologies, Inc.
00000 X. Xxxxxxxx
Xxxxxxxx Xxxx, XX 00000
Fax: (000) 000-0000
Any party may change its address for purposes of this paragraph by giving the
other party within notice of the new address in the manner set forth above.
B. Entire Agreement; Amendments, Etc. This Agreement contains the
entire agreement and understanding of the parties hereto, and
supersedes all prior agreements and understandings relating to
the subject matter thereof. Except as provided herein, no
modification, amendment, waiver or alteration of this
Agreement or any provision or term hereof shall in any event
be effective unless the same shall be in writing, executed by
both parties hereto, and any waiver so given shall be
effective only in the specific instance and for the specific
purpose for which given.
C. Benefit. This Agreement shall be binding upon, and inure to
the benefit of, and shall be enforceable by, the heirs,
successors, legal representatives and permitted assignees of
Executive and the successors, assignees and transferees of
LORECOM. This Agreement or any right or interest hereunder may
not be assigned by Executive without the prior written consent
of LORECOM.
D. No Waiver. No failure or delay on the part of any party hereto
in exercising any right, power or remedy hereunder or pursuant
hereto shall operate as a waiver thereof; nor shall any single
or partial exercise of any such right, power or remedy
preclude any other or further exercise thereof or the exercise
of any other right, power or remedy hereunder or pursuant
thereto.
E. Severability. Wherever possible, each provision of this
Agreement shall be interpreted in such manner as to be
effective and valid under applicable law but, 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. If any part of any covenant or other provision
in this Agreement is determined by a court of law to be overly
broad thereby making the covenant unenforceable, the parties
hereto agree, and it is their desire, that the court shall
substitute a judicially enforceable limitation in its place,
and that as so modified the covenant shall be binding upon the
parties as if originally set forth herein.
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F. Compliance and Headings. Time is of the essence of this
Agreement. The headings in this Agreement are intended to be
for convenience and reference only, and shall not define or
limit the scope, extent or intent or otherwise affect the
meaning of any portion hereof.
G. Governing Law. The parties agree that this Agreement shall be
governed by, interpreted and construed in accordance with the
laws of the State of Oklahoma, without regard to the rules
governing conflicts of law. The parties agree that any suit,
action or proceeding pertaining to this Agreement shall be
brought in the courts of the State of Oklahoma or in the U.S.
District Court for the Northern District of Oklahoma. The
parties hereto hereby accept the exclusive jurisdiction of
those courts for the purpose of any such suit, action or
proceeding. Venue for any such action, in addition to any
other venue permitted by statute, will be Oklahoma.
H. Indemnification. LORECOM shall indemnify and hold Executive
harmless to the fullest extent permitted by law and under the
certificate of incorporation or bylaws of LORECOM, as, to and
from any and all costs, expenses (including reasonable
attorneys' fees, which shall be paid in advance by LORECOM,
subject to recoupment in accordance with applicable law) or
damages incurred by Executive as a result of any claim, suit,
action or judgment arising out of the activities of LORECOM or
any Affiliate or the Executive's activities as an employee,
officer or director of LORECOM or any Affiliate. This
provision shall survive the termination of this Agreement.
I. Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original and all
of which together will constitute one and the same instrument.
J. Recitals. The Recitals set forth above are hereby incorporated
in and made a part of this Agreement by this reference.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed and delivered as of the day and year first above
written.
LORECOM TECHNOLOGIES, INC.
By
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Name:
Title:
EXECUTIVE
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14
EXHIBIT A
ANNUAL BONUS
Executive shall be eligible to receive, in addition to his annual base
salary, a bonus for services rendered during such year, provided that the
company achieves certain forecasted levels of performance to be agreed to by the
board of directors and Executive. Payment of each annual bonus will be paid in
cash and will be in an amount at least equal to .25 times his base salary.
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