NON-COMPETITION, CONFIDENTIALITY, AND NON-SOLICITATION AGREEMENT
Exhibit 10.3
NON-COMPETITION,
CONFIDENTIALITY, AND
NON-SOLICITATION
AGREEMENT
THIS
NON-COMPETITION, CONFIDENTIALITY, AND NON-SOLICITATION AGREEMENT (the
“Agreement”) is dated August 22, 2008, between United E-Systems, a Nevada
corporation (“Buyer”), Netcom
Data Southern Corp., a Georgia corporation (“Company”), and Xxxxxxx X. Xxxxxxx
(“Employee”).
RECITALS:
WHEREAS,
pursuant to a Stock Purchase Agreement dated August 22, 2008, to which Buyer and
the Company are parties (“Purchase Agreement”; all terms defined in the Purchase
Agreement to have the same meanings herein), Buyer acquired all of the
outstanding stock of the Company; and
WHEREAS,
this Agreement is executed and delivered pursuant to the terms of, and as a
condition to the Closing under, the Purchase Agreement, and in connection with
an Employment Agreement (“Employment Agreement”) between the Company and
Employee executed contemporaneously herewith.
NOW,
THEREFORE, in consideration of the mutual covenants contained herein, the
Buyer’s acquisition of the stock of the Company pursuant to the Purchase
Agreement, the opportunity for continued employment of the Employee by the
Company, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as follows:
1. Non-Competition
Agreement. Employee acknowledges that during the three (3)
year employment agreement and as long as the salary is paid to employee whether
working directly for the company or in an advisory role the employee will not in
any way sell any product that competes directly or indirectly with the Company
products. Any new vendors developed by Employee will be solely for the benefit
of the Company.
2. Exception for Termination
without Cause.
As used above “cause” will mean the
Employee’s: (i) conviction (including a plea of guilty or nolo
contendere) of, any felony, a misdemeanor involving fraud, acts of dishonesty,
or moral turpitude, or any other crime that the Board of Directors of the
Company or the Buyer reasonably determines may have a material adverse effect on
the reputation of the Company or the Buyer or the performance of Employee’s
duties; Buyer’s other employees, contractors, vendors, or third persons, unless
Employee’s conduct was authorized by the Board of Directors, the President and
Chief Executive Officer or Chairman of the Board of the Company or the
Buyer.
3. Confidentiality. “Confidential
Information” shall mean any trade secret or information known to the Employee as
a result of his employment or engagement with the Company or the Buyer, both
before or after the date of this Agreement (including information originated
by
the
Employee) of a secret, proprietary, or confidential nature relating to the
Company or the Buyer and their business operations, including, without
limitation, all trade secrets, methods, processes, products, techniques,
know-how, marketing strategies and plans, customer and supplier lists and
information, data, price lists, and forecasts, unless such information is in the
public domain to such an extent as to be readily available to
competitors. The Employee acknowledges that the Confidential
Information constitutes a valuable and unique asset of the Company and the
Buyer. The Employee hereby assigns any rights he may otherwise
possess in any Confidential Information to the Company. The Employee
agrees that he will not, directly or indirectly, use, communicate, disclose,
disseminate, or put in the public domain, any Confidential Information or any
other information of a secret, proprietary, confidential, or generally
undisclosed nature relating to the business of the Company or the
Buyer.
4. Non-Solicitation. The
Employee covenants and agrees that, for a period of two (2) years following the
Termination Date, he will not solicit any contractors, appraisers, or employees
of the Company or the Buyer or in any way induce them not to continue in their
relationship with the Company or the Buyer. Such solicitation can be requested
and grated in writing from Employee to Company. An example would be if the
Company does away with all outside agents and Employee has the opportunity to
use these sales agents.
5. Specific Enforcement; Legal
Fees. The Employee acknowledges that his breach of any of the
provisions of this Agreement could result in irreparable and unreasonable harm
to the Company and Buyer and that injunctive relief, as well as damages, would
be appropriate for a breach of any of such provisions. If any action
or proceeding is brought because of an alleged dispute or default in connection
with this Agreement, the prevailing party shall be entitled to recover
reasonable attorneys’ fees and costs in connection with such action or
proceeding in addition to all other recovery or relief.
6. Severability. Whenever
there is any conflict between any provision of this Agreement and any statute,
law, regulation, or judicial precedent, the latter shall prevail, but in each
such event the provisions of this Agreement thus affected shall be curtailed and
limited only to the extent necessary to bring them within the requirement of the
law. In the event that any part, section, paragraph, or clause of
this Agreement shall be held by a court of proper jurisdiction to be indefinite,
invalid, or otherwise unenforceable, the entire Agreement shall not fail on
account thereof, but the balance of this Agreement shall continue in full force
and effect unless such construction would be clearly contrary to the intention
of the parties or would be unconscionable.
7. Governing
Law. Except as provided below, this Agreement and the
agreements contemplated hereby shall be construed in accordance with and
governed by the laws of the State of Louisiana without giving effect to the
principles of conflict of laws.
8. Jurisdiction and
Venue. Without limiting the right of the Company or the Buyer
to pursue their respective rights and remedies under this Agreement (or any
judgment obtained in respect thereof) in any appropriate jurisdiction, the
Employee hereby irrevocably consents to the jurisdiction and venue of the courts
of the State of Louisiana or of any United States court of
competent
-2-
jurisdiction
located in the State of Louisiana, to adjudicate any legal action commenced in
connection therewith, and waives any objections he may at any time have to such
jurisdiction and venue.
9. If,
within the three (3) year Employment Agreement Period (EEP), Employee is
terminated without cause from day-to-day duties with the Company, compensation
of the salary will continue for the entire 3 year contract. Employee
warrants cooperation with Company during the EEP.
IN
WITNESS WHEREOF, this Agreement has been executed as of the date set forth
above.
EMPLOYEE:
/s/ Xxxxxxx X. Xxxxxxx
-3-
