EMPLOYMENT AGREEMENT
Exhibit 11
This Employment Agreement (this “Agreement”) is entered into as of this 9th day of November,
2004, between OneSource Technologies, Inc., a Delaware corporation (the “Company”) and Xxx X.
Xxxxxxxx (the “Employee”). The term “Parties” shall refer collectively to both of these entities.
Recitals.
Although designated Recitals, the following constitute covenants and warranties and are a part
of this Agreement.
A. Company is currently engaged in two closely related and complimentary lines of technology
industry services and products: (1) equipment sales integration and maintenance support services;
and (2) providing high quality compatible imaging supply products. As used herein, however, the
term “Line of Business” shall mean the business described in this Paragraph and shall also mean any
other activity or business enterprise in which the Company or any subsidiary engages, whether or
not related to the foregoing, at any time during the Term hereof.
B. Employee is employee of the Company on the terms and conditions stated herein.
C. The Company and Employee desire to and hereby do terminate any previous employment
agreement and understandings between them and/or the Employee and First Financial Computer
Services, Inc., whether formal or informal, written or oral, and desire and hereby agree instead to
be governed by the terms and conditions of this Agreement.
Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants herein contained, and in
reliance upon the representations, warranties, and recitals set forth in this Agreement, and in
consideration for and pursuant to Section 5.4 of the Revised Merger Agreement dated November 9,
2004 by and among the Company, First Financial Computer Services, Inc., the Employee, Xxxx X.
Xxxxxxxx, Xxx X. Xxxxxxxx and Xxxxx X. Xxxxxxxx (the “Merger Agreement”), the Parties agree as
follows:
1. Employment. Employee was previously employed by First Financial Computer Services,
Inc., which has recently been merged into the Company. Pursuant to the terms of the Merger
Agreement, the Company hereby continues to employ Employee and Employee accepts such continued
employment from the Company upon the terms and conditions set forth below.
2. Services and Duties. Subject to the remaining provisions of this Paragraph 2,
Employee’s initial position with Company shall be that of Executive Vice President of Field
Services and his duties shall be commensurate with such title, including oversight of maintenance
operations.
2.1. During the Term of this Agreement, Employee shall devote his full time and efforts to the
promotion and development of the Line of Business and to the fulfillment of his duties as an
employee of the Company; and shall faithfully, completely and accurately carry out and perform such
policies and instructions as may be established by the Company, its Board of Directors, or any
person to whom the Board of Directors has delegated the responsibility for overseeing and
supervising the activities of Employee.
2.2. The place of Employee’s performance shall be Little Rock, Arkansas.
2.3. During his employment by Company, Employee shall not engage in any other business
activity, whether or not such business activity is engaged in for gain, profit or other pecuniary
advantage (except that Employee may invest his own assets in a manner that will not interfere with
his/her duties and responsibilities hereunder); and Employee shall not engage in activities
conflicting with, in competition with, or detrimental to, the interests of Company. Before working
on, planning, organizing, or engaging in any consulting, employment or other business activity
outside Employee’s ongoing employment by the Company, Employee shall consult with the Company to
ensure that no conflict, competition or detriment will result.
3. Compensation. For all services to be rendered by Employee under this Agreement, the
Company shall pay or cause to be paid or delivered to Employee the following compensation (and no
other compensation, benefits or remuneration of any kind, except as required by law or agreed to by
the parties in other agreements) during the Term of this Agreement:
3.1. Salary. Employee shall be salaried at the base rate of $157,000 per year (the
“Base Salary”), payable bi-weekly. Employee recognizes that he is exempt from the payment of
overtime under the federal Fair Labor Standards Act, and is therefore not entitled to any payments
for overtime pay. Employee’s base salary may be increased by merit raises or cost of living
increases as determined by the Company in its sole discretion.
3.2. Bonus. Employee shall be evaluated after closing of the Merger Agreement in
conjunction with all employees of the Company and any bonus or other incentives to be paid to
Employee shall be determined at that time in the Company’s sole discretion and in the same manner
and on the same terms and conditions as any other employee of the Company from time to time in a
similar position.
3.3. Tax Withholding. All amounts of salary, bonuses, commissions, and other
compensation payable to Employee hereunder shall be reduced by any amounts that the Company is
required to withhold with respect to such payments under the then applicable provision of any
state, federal or local income or other tax laws, the so-called “FICA” laws, regulations or
statutes of a like nature or any and all other state, federal or local laws of any kind or nature.
4. Benefits. The Company will provide Employee with the opportunity to participate, on the
same teens and conditions available to other employees of the Company, in any life, health, dental,
and disability insurance plans and any retirement plans established for the benefit of
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employees or
otherwise made available to other employees of the Company, which plans may, in the sole discretion
of the Company, be changed at any time. Employee shall be entitled to vacation and sick pay
consistent with Company policy applicable to other employees of Company. The life, health, dental,
and disability insurance and retirement plans and the vacation and sick pay policy referenced in
this Section 4 may be changed at any time in the sole discretion of the Company. Notwithstanding,
and in addition to the foregoing, the Company shall at a minimum provide: (1) So long as the
current policy held by First Financial Computer Services, Inc. (“FFCS”) is assignable to the
Company, the Company will continue to provide employee with the $1,000,000 life insurance policy
currently held by FFCS and payable to the Employee’s beneficiaries; (2) car at $1 buyout; (3)
Service credit since 1986; (4) four weeks paid vacation per year.
5. Term of Agreement and Expiration.
5.1. Initial Term. This Agreement shall be effective for a period of three years,
beginning on November 9, 2004 and continuing to the close of business on November 9, 2007 (the
“Initial Term”), unless otherwise terminated as provided herein.
5.2. Renewal Term. This Agreement shall thereafter be automatically renewed for
successive one (1) year periods (each called a “Renewal Term”).
5.3. Definition of “Term.” For purposes of this Agreement, the word “Term” shall mean
the actual time during which this Agreement is effective until it is terminated, including (unless
earlier terminated) the Initial Term plus any Renewal Term(s).
5.4. Expiration at End of Initial or Renewal Term. Either party may cause the
expiration of the Agreement at the end of the Initial Term or any Renewal Term by giving notice of
expiration in writing, at least 30 days prior to expiration of the Initial Term or any Renewal
Term.
5.5. Obligations Upon Expiration. If either Party causes the expiration of this
Agreement at the scheduled end of the Initial or any Renewal Term as provided in this Paragraph,
the Company shall have no further obligation to pay any compensation of any nature whatsoever to
the Employee.
6. Termination.
6.1. This Agreement (except those provisions that survive the termination hereof) shall
terminate upon the first to occur of the following, regardless when it occurs, provided, however,
in no event will this Agreement be terminated by the Company before the OneSource Promissory Note
is paid in full:
6.1.1. Death or Disability of Employee. Upon either the death or disability of
Employee, this Agreement shall terminate immediately without notice, effective as of the date of
such death or disability, and the Company shall have no liability for any amounts other than any
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Base Salary through the end of the Initial Term or any additional amounts already earned by and not
yet paid to Employee on the date of death or disability. In the event of the disability of
Employee, the Company shall continue to maintain any insurance described in Section 4 during the
remainder of the Initial Term. For the purposes of this Paragraph 6.1.1, “date of disability”
shall mean the date upon which the Employee begins to receive disability payment under the
disability insurance described in Section 4.
6.1.2. Termination Without Cause. Either party may terminate this Agreement at will,
without cause, by giving at least 30 days’ written notice of such termination.
6.1.3. Termination By Employee for Cause. Employee may terminate this Agreement for
“Employee Cause,” by giving at least 10 days’ written notice of such termination. When used
herein, the term “Employee Cause” shall mean that the Company has (a) materially breached its
obligations hereunder, under the Merger Agreement or the OneSource Promissory Note, (b) assigned
the Employee without his consent to a position, responsibilities, or duties of a materially lesser
status or degree of responsibility than his position, responsibilities, or duties as of the date of
this Agreement; or (c) required that the Employee be based anywhere other than the area. set forth
in Section 2.3, without the Employee’s consent; and Employee has given the Company written notice
of the particulars in which the Company is claimed to have materially breached its obligations, and
the Company has failed within thirty days after receipt of such notice to cure such breach.
6.1.4. Termination By Company for Cause. The Company may terminate this Agreement for
Cause by giving at least 10 days’ written notice of such termination. For the purposes of this
Agreement, Cause means (i) the Employee’s material breach of this Agreement or the Merger
Agreement; (ii) the conviction of or the entering of a guilty plea or plea of no contest with
respect to, a felony, the equivalent thereof, or any other crime with respect to which imprisonment
is a possible punishment and Company has given the Employee written notice of the particulars in
which the Employee is claimed to have materially
breached its obligations, and the Employee has failed within thirty days after receipt of such
notice to cure such breach.
6.2. Compensation Upon Termination.
6.2.1. If the Employee terminates the Agreement for Employee Cause, or if the Company
terminates the Agreement without Cause, and provided that Employee has been and continues to be in
compliance with the provisions of Paragraph 9 hereof and all provisions of the Merger Agreement,
Company shall continue to pay the Employee’s Base Salary for a period of the remainder of the
Initial Term, plus any notice period specified above, as applicable (subject to withholding as
provided in Paragraph 3.3 above).
6.2.2. If the Employee terminates this Agreement without Employee Cause, or if the Company
terminates this Agreement for Cause, the Company shall have no further obligation to pay any
compensation under this Agreement.
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7. Expense Reimbursement. The Company shall pay (through Employee’s authorized use of a
credit card provided by Company), for all ordinary, necessary, and reasonable expenses incurred by
Employee in discharging his duties hereunder, including without limitation all costs of a cell
phone and gas for his automobile. Company’s reimbursement of expenses shall be made in accordance
with the Company’s policies applicable to all other employees of the Company in a similar position
as the Employee.
8. Return of Records and Property. On the termination or expiration of Employee’s
Employment and/or this Agreement, regardless of the manner in which or the reason for which it
expires or is terminated, or at any other time upon the request of the Company or its successors or
assigns, Employee shall immediately return to Company all of the following:
8.1. All of Company’s property, tangible or intangible, real, personal or mixed, used by
Employee in rendering services hereunder or otherwise that is in Employee’s possession or under his
control.
8.2. All lists, files, books, accounts, drawings, memoranda, correspondence, documents, data,
notes, reports, proposals, materials, and all other records of any description whatsoever,
including any copies thereof, and including any software disks on which such records are contained,
pertaining to the Company’s business, current or prospective clients or customers, suppliers,
manufacturing or production process, and/or Confidential Information. Employee shall have no right
to copy or otherwise reproduce such records.
9. Restrictive Covenants. The parties recognize that the Services to be rendered under
this Agreement by Employee are special, unique and of an extraordinary character. The parties
further acknowledge that in the course of Employee’s performance of his duties hereunder, Employee
will have access to certain confidential information which is valuable and necessary to Company in
the conduct of its business and its goodwill. Employee, in consideration of the compensation to be
paid to him pursuant to this Agreement and the other promises of Company made herein, expressly
promises as follows, which promises shall survive and continue after termination or expiration of
this Agreement except as set forth herein. Moreover, the terms of this Section 9 are a material
inducement to Company entering into the Merger Agreement and this Employment Agreement.
9.1. Covenant Not to Compete. Employee will not, directly or indirectly, for the
duration of the Time Limit and within the Geographical Limit, either as principal, agent, employee,
employer, stockholder, co-partner, or in any other individual or representative capacity
whatsoever, directly or indirectly own, manage, operate, control, aid, or assist another in the
operation, organization or promotion of, be employed by, participate in, advise, or engage in any
manner with the ownership, management, operation, or control of any
business competitive with the Line of Business. In the event of a violation of the covenants
contained in this Paragraph 9.1, the Time Limit shall be extended by a period of time equal to that
period beginning when the activities constituting such violation commenced and ending when the
activities constituting such violation shall have been finally terminated in good faith.
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9.2. Anti-Piracy Covenants. Employee will not, directly or indirectly, for the
duration of the Time Limit, do any of the following for the purpose of competing against the
Company or other than in the ordinary course of fulfilling his duties to the Company:
9.2.1. Request or advise any present or future actual or prospective merchandise resource,
supply resource or service resource of Company to refrain from, withdraw, curtail or cancel the
furnishing or sales of merchandise, supplies, or services to the Company.
9.2.2. Induce or attempt to influence any employee of the Company to terminate his employment
or induce or attempt to influence any prospective employee to decline employment.
9.2.3. Request any entities to withdraw, curtail, or cancel any business with Company.
9.2.4. Disclose the identity of any entity who was a customer of the Company during Employee’s
employment by Company to any other person, firm or corporation, to the extent such information is
not already public information.
9.2.5. Solicit or canvas business in the Line of Business from any entity who was a customer
of the Company (or any of its subsidiaries) during Employee’s employment by Company.
9.2.6. Solicit or canvas business in the Line of Business from any entity who was a customer
of the Company (or any of its subsidiaries), and with whom Employee had contact, during Employee’s
employment by Company.
9.3. Trade Names. Employee will not use any corporate, fictitious or trade name used
by Company or Company’s subsidiaries or related companies or use any confusingly similar name.
9.4. Confidential Information.
9.4.1. Definition of Confidential Information. Confidential information shall mean
any confidential or non-public information of any kind, nature, or description, concerning or
arising from any matters affecting or relating to the business of Company, including, without
limiting the generality of the foregoing, the following:
9.4.1.1. all intellectual property including, without limitation, all trademarks, trademark
registrations and applications, service marks, copyrights, patents, trade secrets, proprietary
marketing information and know-how, product designs, formulae, processes, and techniques, and
confidential development or research work of Company;
9.4.1.2. information concerning the manner and details of Company’s operation, organization
and management, including without limitation the names of its personnel,
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the details of its
financial affairs, credit reports, sales records, and the prices the Company obtains or has
obtained or at which it sells or has sold its services or products;
9.4.1.3. names of, or any other information pertaining to, any of Company’s customers or
persons or concerns likely to become customers of Company, or of any past, present or future supply
resources, distributors, contractors, and vendors of Company, and the terms on which Company
deals with such entities;
9.4.1.4. marketing, sales, product development, financing, engineering, or other business
plans or strategies;
9.4.1.5. nonpublic forms, contracts and other documents used in Company’s business;
9.4.1.6. computer software developed or used by the Company, including all rights under
licenses and other contracts relating thereto, and all source code and all documents related
thereto;
9.4.1.7. any other information of, about or concerning the business of the Company, its manner
of operation, plans, or other data of any kind, nature or description, if such other information is
considered and treated as confidential information and/or if such information gives to the Company
an opportunity to obtain an advantage over its competitors who do not know or use it.
9.4.2. Acknowledgment. Employee acknowledges that during his employment by Company,
he will have access to Confidential Information (as defined above), all of which shall be made
accessible to Employee only in strict confidence; that unauthorized disclosure of Confidential
Information will damage Company’s business; that Confidential Information would be susceptible to
immediate competitive application by a competitor of Company’s; that Company’s business is
substantially dependent on access to and the continuing secrecy of Confidential Information; that
Confidential Information is unique to Company and known only to Employee, Company, and certain key
employees and contractors of Company; and that title, ownership, possession and control of
Confidential Information shall a all times remain vested in Company. Consequently, Employee
acknowledges that the restrictions contained in this paragraph are reasonable and necessary for the
protection of Company’s business.
9.4.3. Obligation to Protect Confidential Information. Employee shall use his best
efforts and the utmost diligence to guard and protect Confidential Information and to treat such
information as confidential and prevent its improper disclosure or use. Employee further agrees to
observe and obey any instructions and directions of Company in respect to Confidential Information,
including without limitation any stated restrictions on removing Confidential Information from
Company premises, any established sign-in and -out procedures for Confidential Information, any
directions for secure destruction of Confidential Information, and any other instructions or
directions that Company, in its sole discretion, may issue for the protection of Confidential
Information.
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9.4.4. Restriction Against Disclosure of Confidential Information. Except in
connection with and in furtherance of Employee’s official duties with and on behalf of Company,
Employee shall not during the time of his employment or at anytime thereafter use, copy, divulge,
transmit, convey, furnish, disclose or otherwise communicate the “Confidential Information” (as
defined below) to any person or entity, directly or indirectly, without Company’s prior written
consent.
9.4.5. Non-Use of Confidential Information of Others. Employee shall not, during his
employment by Company, improperly use or disclose any proprietary or confidential information or
trade secrets belonging to any former employer or any third party as to whom Employee owes a duty
of nondisclosure.
9.5. Non-Use of Confidential Information of Others. Employee shall not, during her
employment by Company, improperly use or disclose any proprietary or confidential information or
trade
secrets belonging to any former employer or any third party as to whom Employee owes a duty of
nondisclosure.
9.6. Enforcement of Restrictive Covenants.
9.6.1. Injunctive Relief. Employee agrees that a violation on his part of any
covenant in this Section 9 will cause such damage to Company as will be irreparable, and for that
reason Employee further agrees that Company shall be entitled, as a matter of right, and upon
notice as provided in Section 13 hereof, to an injunction from any court of competent jurisdiction
restraining any further violation of said covenants by Employee, his employer, employees, partners
or agents. Such right to injunctive remedies shall be in addition to and cumulative with any other
rights and remedies Company may have pursuant to this Agreement, including, specifically, the
recovery of lost profits and other monetary damages, whether compensatory or punitive.
9.6.2. Reformation or Deletion of Invalid Provision. The following provisions are
intended to give effect to the agreement and desire of the parties hereto that the provisions of
this Section 9 be enforced to the fullest extent possible under the laws and public policies
applied in each jurisdiction in which enforcement is sought.
9.6.2.1. Reformation By Company. The parties agree that the Company may in its
discretion at any time (whether before or during any formal proceeding to enforce this Agreement)
unilaterally reduce any restriction hereunder to make this Section 9 enforceable to the maximum
extent permissible under law.
9.6.2.2. Automatic Reformation. If any provision of this Section 9 is determined by
any court of competent jurisdiction (or any arbitrator(s) mutually agreed upon by the parties) to
be invalid, illegal or unenforceable, in whole or in part, whether before or after reformation by
the Company as set forth in the preceding paragraph, then such provision is automatically deemed
reformed and amended so that the same shall be enforceable to the fullest extent permissible under
the laws and public policies applied in the jurisdiction in which
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enforcement is sought. For
example, if a court deems the Time Limit unenforceable, the Time Limit shall be reduced in
one-month increments to the minimum extent necessary to make such restrictions enforceable. If a
court would deem the Geographical Limit overbroad, the, same shall be reduced in appropriate
increments to the minimum extent necessary to make such restrictions enforceable.
9.6.2.3. Reformation by Court. If any provision of this Section 9 is determined by
any court of competent jurisdiction (or any arbitrator(s) mutually agreed upon by the parties) to
be invalid, illegal or unenforceable, in whole or in part, whether before or after reformation by
the Company as set forth in Paragraph 9.5.2.1, and if the automatic reformation set forth in
Paragraph 9.5.2.2 does not take effect for any reason, then the court or arbitrator(s) is/are
hereby empowered to reform and amend such invalid, illegal or unenforceable provision to make it
valid, legal and enforceable.
9.6.2.4. Deletion of Provision. If any provision of this Section 9 is determined by
any court of competent jurisdiction (or any arbitrator(s) mutually agreed upon by the parties) to
be invalid, illegal or unenforceable, in whole or in part, and reformation by the Company,
automatic reformation, or reformation by the Court, as described in Paragraphs 9.5.2.2 and 9.5.2.3
does not take effect for any reason, then the invalid, illegal or unenforceable provision shall be
deemed deleted from the Agreement, and the remainder of the Agreement shall remain in force.
9.7. Alternative of Royalty if Restriction Unenforceable. In the event that any
applicable restrictive covenant(s) set forth in this Section 9 above is/are deemed unenforceable
for any reason, and cannot
be or is/are not reformed or amended as provided herein, then Employee shall pay to the
Company a royalty equal to five percent (5%) of the gross dollars generated from business conducted
by Employee that is described by such restrictive covenant(s). Such royalty shall be paid to the
Company by Employee monthly for a period of three (3) years from and after the date of termination
of this Agreement.
9.8. Time Limit; Geographical Limit.
9.8.1. The “Time Limit” shall mean six months after the end of the Term of this Agreement.
However, the provisions of Sections 9.1 and 9.2 shall terminate if (1) this Agreement is terminated
by the Company without Cause or terminated for Employee, Cause during the Initial Term or (2) the
OneSource Promissory Notes due, under the terms of the Merger Agreement are not paid in full when
due.
9.8.2. The “Geographical Limit” shall mean the United ‘States. The Geographical Limit
shall not be construed as a limitation on any provision in this Section 9 except as
expressly stated in such provision.
9.9. Survival of this Paragraph. The Parties hereto expressly agree and understand
that the provisions of this Section 9 shall survive the termination of this Agreement for any
reason.
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10. Ownership of Intellectual Property.
10.1. Disclosure of Inventions. Employee shall promptly disclose in writing to
Company complete and accurate information concerning each and every invention, discovery, idea, I
improvement, device, concept, design, apparatus, practice, process, trademark or service xxxx,
marketing or business idea, software or computer program or code, method or product, whether or not
patentable or copyrightable, made, developed, perfected, devised, conceived or first reduced to
practice by Employee, either solely or in collaboration with others, during Employee’s employment,
whether or not during regular working hours, and which: (i) relates to the actual or contemplated
business., technologies or products of Company; (ii) results from any work performed by Employee
for Company; (iii) involves the use of, or is created with, Company’s equipment, supplies,
facilities, or Confidential Information; (iv) results from or is suggested by any work done at
Company’s request or by any Company employee other than Employee, or relates to any work assigned
to Employee by Company; or (v) results from Employee’s access to any of Company’s Confidential
Information or other Company-related information (hereafter referred to as the “Inventions”).
10.2. Ownership of Inventions. Employee hereby acknowledges that all right, title,
and interest in and to the Inventions shall become and remain the sole and exclusive property of
the Company. Employee hereby assigns to Company any and all of Employee’s right, title and interest
in and to any and all of the Inventions, without further payment or other form of consideration.
Employee agrees to take all actions reasonably necessary, including execution and delivery of such
applications, assignments, and other instruments and documents as Company shall reasonably request,
to establish, perfect, exercise, confirm or protect rights assigned or deemed assigned to Company
pursuant to this paragraph.
10.3. Works for Hire. Employee acknowledges that all original works of authorship
which are made by Employee (solely or jointly with others) within the scope of his employment by `
Company, and which are protectable by copyright, are “works made for hire,” as that term is defined
in the United States Copyright Act (17 U.S.C. § 101). To the extent that any such works, by
operation of law, cannot be “works made for hire,” Employee hereby assigns to Company all right,
title, and interest in and to such works and to any related copyrights.
10.4. Assistance of Employee. Upon the request of Company and without further
compensation therefor, whether during the term of Employee’s employment or thereafter, Employee
shall perform all lawful acts, including, but not limited to, the execution of papers and lawful
oaths and the giving testimony, that in the opinion of Company, its successors and assigns, may be
necessary or desirable in obtaining, sustaining, reissuing, extending and enforcing United States
and foreign Letters Patents, including, but not limited to, design patents, on any and all of the
Inventions, and for perfecting, affirming and recording Company’s complete ownership and title
thereto.
10.5. Records. Employee shall keep complete, accurate and authentic accounts, notes,
data and records of all of the Inventions in the manner and form requested by Company. Such
accounts, notes, data and records relating to the Inventions shall be the exclusive property of
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Company, and, upon its request, Employee shall promptly surrender the same to it or, if not
previously surrendered upon Company’s request or otherwise, Employee shall surrender the same, and
all copies thereof, to Company upon the conclusion of his or her employment.
10.6. Obligations, Restrictions and Limitations. Employee understands that Company
may enter into agreements or arrangements with agencies of the United States Government, and that
Company may be subject to laws and regulations which impose obligations, restrictions and
limitations on it with respect to inventions and patients which may be acquired by it or which may
be conceived or developed by employees, consultants or other agents rendering services to it. If
the Employee receives reasonable prior written notice of such, Employee agrees that he shall be
bound by all such obligations, restrictions and limitations applicable to any said invention
conceived or developed by him during the terns of his employment and shall take any and all further
action which may be required or discharge such obligations and to comply with such restrictions and
limitations, of which he had reasonable prior written notice.
11. Ventures. If, during the term of his employment, Employee is engaged in or associated
with the researching, investigating, planning or implementing of any project, program or venture on
behalf of or involving Company, all rights in the project, program or venture shall belong
exclusively to Company and shall constitute a corporate opportunity belonging exclusively to
Company. Except as approved in writing by the Company, Employee shall not be entitled to any
interest in such project, program or venture or to any commission, finder’s fee or other
compensation in connection herewith.
12. Employee Representations, Warranties, and Covenants.
12.1. No Other Contractual Obligation. Employee represents and warrants to the
Company that the Employee’s execution and performance of this Agreement does not conflict with or
cause a breach of any contractual obligation, agreement, or understanding between Employee and any
other party, including Employee’s past employers.
12.2. Disclosure of Confidential Information. Employee represents and warrants to the
Company that Employee will not use or disclose any confidential information obtained in any
previous employment in a manner or take any action that results in an action or claim being
instigated or made against the Company for tortious interference with a business relationship or
contract or other similar claims.
13. Notices.
13.1. Method and Time of Delivery. All notices, requests, demands, payments and other
communications required under this Agreement shall be in writing and shall be transmitted by one of
the following methods:
13.1.1. Hand delivery in which case the notice shall be deemed to have been given on the date
of delivery;
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13.1.2. United States mail, return receipt requested, postage prepaid, in which case the
notice shall be deemed to have been given three business days after the date of mailing; or
13.1.3. Reputable overnight courier, in which case the notice shall be deemed to have been
given on the business day following deposit of the notice with the reputable overnight courier for
delivery.
13.2. The foregoing to the contrary notwithstanding, if any notice is given by facsimile as
well as one of the above three methods, the notice shall be deemed to have been given on the date
of actual receipt by facsimile if earlier than the time periods set forth for each method above.
13.3. Notice Address. Notices shall be directed to the Parties at the following
addresses.
If to the Company:
00000 Xxxxx 00xx Xxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Xxxxx 000
Xxxxxxxxxx, XX 00000
If to Employee:
Xxx X. Xxxxxxxx
00 Xxxxxx Xxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
00 Xxxxxx Xxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
13.4. Any party may alter the address or addresses to which communications or copies are to be
sent to such party by giving notice of such change of address in conformity with the provisions of
this Paragraph for the giving of notice.
13.5. Formal Notice of Certain Matters Not Required. The foregoing to the contrary
notwithstanding, however, nothing in this Section 13 shall be construed to require the Company to
give the Employee written notice, or notice in any particular form, of day-to-day business matters,
routine communications, communications relating to the operational aspects of the Company’s
business, supervisory directions or instructions, changes in or additions to duties, or any matter
addressed in Section 2 of this Agreement.
14. General Provisions.
14.1. Binding Nature of Agreement; Assignment and Nominee. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective heirs, personal
representatives, successors, and assigns. Employee acknowledges that the services to be rendered
by him pursuant to this Agreement are unique and personal. Accordingly, Employee
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may not assign,
transfer, or encumber (whether voluntary or by operation of law) any of his/her rights or
obligations under this Agreement without the prior written consent of Company. Any attempted
transfer, assignment, or encumbrance in violation of this provision shall be null and void and
shall convey no rights or claims against the Company to any third party. Nothing in this
Agreement, whether express or implied, is intended to confer any rights or remedies under or by
reason of this Agreement on any persons other than the parties to it and their successors and
permitted assigns, nor is anything in this Agreement intended to relieve or discharge the
obligation or liability of any third person or party to this Agreement except as previously
provided herein, nor shall any provision give any
third persons any right of subrogation or action over or against any party to this Agreement
except as may be expressly provided herein.
14.2. Company Policies. Employee hereby acknowledges and agrees that he is bound by
all of the Company’s employment policies applying generally to employees, as they may be adopted
and/or modified by the Company from time to time in its sole discretion, and to the extent not
inconsistent with this Agreement.
14.3. Entire Agreement. Except with respect to the Company’s general employment
policies: referenced in Paragraph 14.2 above, this Agreement constitutes the entire Agreement and
understanding among the parties hereto with respect to the subject matter hereof and supersedes all
prior and contemporaneous agreements, understandings, inducements and conditions express or
implied, oral or written, of any nature whatsoever with respect to the subject matter hereof. Any
such prior or other agreements or understandings between Company and Employee are hereby mutually
terminated without any further rights or obligations of either party thereunder. This Agreement
may not be modified or amended other than by an Agreement in writing signed by the party to be
charged with such modification or amendment.
14.4. Controlling Law. The parties acknowledge that this Agreement was negotiated,
executed, and delivered in the State of Arizona, and further that this Agreement is effective upon
acceptance by the Company at its principal place of business in Phoenix, Arizona. The parties
agree that all questions relating to the validity, interpretation, and performance of this
Agreement shall be governed by and construed, interpreted and enforced in accordance with, the
substantive laws of the State of Arizona (without reference to choice of law principles except that
giving effect to the parties’ express choice).
14.5. Relationship Created. The relationship created by this Agreement shall be
deemed and construed to be, and shall be, that of employer and Employee and not of any other type
or nature.
14.6. Attorneys’ Fees. Should any litigation or arbitration be commenced between the
parties hereto concerning the terms of this Agreement, or the rights and duties of the parties
hereto under this Agreement, the prevailing party in such litigation shall be entitled, in addition
to such other relief as may be granted, to a reasonable sum as and for the prevailing party’s
attorneys’ and experts’ fees.
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14.7. Provisions Separable. Except as specifically provided in that portion of
Paragraph 9.5 hereof relating to the Construction of Restrictive Covenants, the provisions of this
Agreement are independent of and separate and severable from each other, and no provision shall be
affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other
or others of them may be invalid or unenforceable in whole or in part. Notwithstanding the
foregoing, however, the obligations of a party shall become void if the material consideration for
such obligations is or becomes invalid or unenforceable.
14.8. Indulgences Not Waivers. Neither the failure nor any delay on the part of any
party to exercise any right, remedy, power or privilege under this Agreement shall operate as a
waiver thereof, nor shall any single or partial exercise of any right, power, or privilege preclude
any other or further exercise of the same or of any other right, remedy, power or privilege, nor
shall any waiver of any right, remedy, power or privilege with respect to any occurrence be
construed as a waiver of such rights, remedy, power, or privilege with respect to any other
occurrence.
14.9. Costs and Expenses. Each party hereto shall bear its own costs, including
counsel fees and accounting fees, incurred in connection with the negotiation, drafting and
consummation of this Agreement and the transactions contemplated thereby, and all matters incident
thereto.
14.10. Titles Not to Affect Interpretation. The titles of Sections, Paragraphs and
Subparagraphs contained in this Agreement are for convenience of reference only, and they neither
form a part of this Agreement nor are they to be used in construction or interpretation hereof.
14.11. Interpretation of Agreement. This Agreement shall be interpreted according to
the plain and ordinary meaning of its terms (unless specifically defined herein). This Agreement
shall not be construed against any party on account of the identity of the person who drafted this
Agreement or the relationship of any party to the person who drafted this Agreement.
(Signature Page to Follow)
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above, effective as of such date.
| “COMPANY” | ||||
| ONESOURCE TECHNOLOGIES, INC., a Delaware corporation |
||||
| By: | /s/ Xxxxxxx Xxxxxxxx | |||
| Its: | CEO | |||
| “EMPLOYEE” | ||||
| /s/ Xxx X. Xxxxxxxx | ||||
| XXX X. XXXXXXXX |
||||
(Signature Page of Xxx Xxxxxxxx Employment Agreement)
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