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EXHIBIT 10.3
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 Xxxxx Xxxxxx ("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 President and Chief Executive Officer ("CEO"). 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:
1. To faithfully serve and further the interests of LORECOM in every
lawful way, giving honest, diligent, loyal and cooperative
service to LORECOM;
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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 Digital Transcription
Systems, Inc. so long as such operational involvement does not
materially interfere with the performance of Executive's duties
under this Agreement and does not violate the noncompetition
provisions of Section IV of 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 CEO of
LORECOM without his written consent or the assignment to the
Executive of duties and responsibilities inconsistent with his
position as CEO 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 Fifty
Thousand Dollars ($150,000.00) 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.
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
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
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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, corporation, limited
liability company or organization, other than LORECOM or its
Affiliates (hereinafter referred to as "Third Parties"), or use
or cause or
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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 Affiliate (whether as owner, partner,
trustee, beneficiary, stockholder, member, officer,
director, employee, independent contractor, agent,
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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. The term "Prohibited Business" does not
include the primary business activity of Digital
Transcription Systems, Inc. as engaged on the date of this
Agreement.
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
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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:
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
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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.
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 .5 times his base salary.
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