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EMPLOYMENT AGREEMENT
BETWEEN R-TEC CORPORATION
AND XXXX XXXXXXX
This Employment Agreement (the "Agreement") is made effective the 3rd day
of November, 1999, by and between R-Tec Corporation, an Idaho corporation duly,
with its principal place of business located at 0000 X. Xxxxxxxxxx Xxx.,
Xxxxxxxx, Xxx Xxxxxx, Xxxxx, referred to in this Agreement as "Employer," and
Xxxx X. Xxxxxxx, of Boise, Ada County, Idaho, referred to in this Agreement as
"Employee."
1. Recitals
WHEREAS, Employer desires to employ Employee under the terms and conditions
hereof.;
WHEREAS, Employee desires to be employed by Employer under the terms and
conditions hereof;
WHEREAS, the parties agree and recognize that the nature of the business
conducted by Employer is highly competitive and one in which immeasurable damage
can be inflicted if the trade secrets of Employer are made known to another
competitor. "Trade secrets", as used herein, shall mean any secret, confidential
and/or other commercial information and ideas of Employer that constitute trade
secrets under Idaho law, Idaho Code section 48-801(4), including, but not
limited to (a) files, statistics, abstracts, documents and records relating to
the manufacture of high-tech computer components developed or generated by
Employer or Employee while acting as Employer's agent; (b) customer lists; (c)
concepts, techniques and know-how relating to the manufacture of high-tech
computer components developed by Employer or Employee while acting as Employer's
agent; (e) any drawings; and (f) any concepts, techniques and know-how relating
to the manufacture of high-tech computer components developed by Employer or
Employee while acting as Employer's agent which relates or constitutes the
subject matter of any copyright, patent or license, exclusive or non-exclusive,
which belong to Employer.
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WHEREAS, the parties agree and recognize that over the course of his
employment with Employer, Employee may acquire confidential proprietary
information other than trade secrets, which would irreparably harm Employer,
should Employee share such information or utilize it to compete against
Employer. Confidential and proprietary information includes, but is not limited
to: (a) all data, (b) all data and other information relating to the business of
Employer (including Employer's financial affairs, clients, product concepts and
products); and (c) all data and other information concerning Employer's clients
and customers. The parties agree that all programs, designs, documents, files,
records and other data or materials produced, created or maintained by Employee
are the sole and exclusive property of Employer.
WHEREAS, the parties agree and recognize that the duties and
responsibilities of Employee are such that it would be detrimental to Employer,
and Employer's clients, if Employee were to provide services similar to those
provided to Employer to any other person, firm, corporation, entity or business
engaged in work similar to Employer.
2. Agreement
The Employer agrees to hire Employee for the purpose of providing
engineering and technical design, development and production services of
high-tech computer components.
3. COMPENSATION; BENEFITS
3.1 The Employer shall pay to the Employee as compensation for all
services rendered by the Employee during the term of this agreement a
base salary of $81,120.00 per annum.
3.2 Employer shall also provide Employee with health care benefits by
paying the premium therefor;
3.3 Employer shall also provide Employee with a company car and pay all
expenses and maintenance associated therewith;
3.4 3.5 Employee may be entitled to such other employment benefits as may
be provided from time to time by the Employer to other employees
occupying similar positions.
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3.6 Employer shall also pay to Employee the sum of Twenty-Five Thousand
Dollars ($25,000.00) as a bonus associated with signing this
Agreement.
3.7 Employee shall be entitled to periodic bonuses as determined by the
officers and directors with such bonuses to be determined in relation
to the profits of the Employer.
4. No Partnership
The parties to this Agreement intend that no partnership or joint venture
be formed hereby.
5. Term; No At-Will Employment
This Agreement creates a specific term of employment and is not at-will
employment, nor shall anything in this Agreement be construed to the contrary.
The term of this employment shall be for a period of five (5) years from the
date of this agreement. After the expiration of this period, either the Employer
or the Employee may for any reason, at the option of such party, terminate this
Agreement at any time by giving 30 days notice in writing or enter into a new
Employment Agreement.
6. COVENANT AGAINST COMPETITION
7.
The Employee acknowledges that the services he rendered during the course
of his employment with Employer are of a special and unusual character with a
unique value to Employer, the loss of which cannot adequately be compensated by
damages in action at law. In view of the unique value to Employer of the
services of Employee and because of the confidential information obtained by or
disclosed to Employee during the course of his employment with Employer, and as
a material inducement to Employer to enter into this Agreement and to employ
Employee, Employee covenants and agrees that during the entire period of time
Employee remains in Employer's employ, and for a period of two (2) years
thereafter, he will not, except upon the written request of Employer, or the
prior written permission of Employer, directly or indirectly, by himself or in
conjunction with any person, firm, corporation or entity, call upon any customer
or client of Employer or any affiliate of Employer, or compete or otherwise
engage in the business of Employer or any affiliate of
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Employer, for his own benefit or for the benefit of any other person, firm, or
corporation, by performing any of the activities which he performed while in the
employ of Employer, within the County of Ada, State of Idaho and within a 100
mile radius of County of Ada, State of Idaho; nor shall he, except upon request
of Employer, engage in any activity during said period for the purpose of:
(A) soliciting from any customer, any service competing with
that sold by Employer; or
(B) diverting or taking away any customer or client of
Employer; or
(C) individually or on behalf of any person, firm,
corporation or entity other than Employer, in any area,
soliciting the business of any of Employer's clients with
whom Employee had contact while employed by Employer; or
(D) individually or on behalf of any person, firm,
corporation or entity other than Employer, inducing or
attempting to persuade any former, current or future
employee, agent, manager, consultant, director or other
participant in Employer's business to terminate such
employment or other relationship in order to enter into any
relationship with Employee, any business organization in
which the Employee is a participant in any capacity
whatsoever, or any other business organization in competition
with Employer's business.
For purposes of this Paragraph:
(A) The term "affiliate" means any legal entity that directly
or indirectly through one or more intermediaries controls, is
controlled by, or is under the common control with Employer;
and
(B) The term "customers" means all persons to whom Employer
or any of its affiliates has sold any product or service,
whether or not for compensation.
This provision, however, does not prohibit Employee from taking direct
employment with any of Employer's clients.
7. COVENANT AGAINST DISCLOSURE OF TRADE SECRETS
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EMPLOYMENT AGREEMENT - PAGE 4
Employee covenants and agrees that during the entire period of time
Employee remains in Employer's employ, and for Two (2) years thereafter,
Employee will not (a) disclose, reveal, divulge or make known to any other
person, firm, corporation or entity any of the trade secrets of Employer, for
any reason whatsoever except pursuant to prior express written permission of
Employer, or (b) use the trade secrets of Employer in any way or for any
purpose, be it direct, indirect or otherwise except pursuant to the prior
express written permission of Employer.
8. COVENANT OF CONFIDENTIALITY
Employee covenants and agrees to carefully guard and keep secret all
confidential information of Employer.
9. COSTS AND ATTORNEYS FEES
In the event of any breach or violation of the foregoing covenants, it is
agreed that Employee and Employer shall be responsible to pay their own
respective attorney's fees and court costs related to the enforcement of the
covenants contained in this Agreement.
10. GOVERNING LAW, JURISDICTION AND VENUE
This Agreement shall be construed and interpreted in accordance with the
laws of the State of Idaho. The parties agree that the courts of Idaho shall
have exclusive jurisdiction and agree that Ada County is the proper venue.
11. EFFECT OF UNENFORCEABLE RESTRICTION; SEVERABILITY
In the event any court or arbitration panel should find that the period of
non-competition or any restriction contained in this Agreement is unreasonable
or unenforceable, it is the intention of the parties that such restriction shall
not hereby be terminated but shall be deemed amended to the extent required to
render it valid and enforceable. If any provision or term of this Agreement is
considered unenforceable and not amendable, the remaining provision or terms
shall continue in full force and effect.
12. WAIVER
Either party may waive in writing compliance or enforcement of any
provision of this Agreement. Such a waiver shall not affect the validity or
enforceability or constitute a waiver of
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future enforcement of that provision or of any other provision of this Agreement
by that party or any other party unless so stated in the waiver. A party's
failure to insist on compliance or enforcement of any provision of this
Agreement shall not affect the validity or enforceability or constitute a waiver
of future enforcement of that provision or of any other provision of this
Agreement by that party or any other party.
13. Headings
The various headings in this Agreement are inserted for convenience only
and are not part of the Agreement.
14. ENTIRE AGREEMENT
This Agreement constitutes the whole agreement between Employer and
Employee. Any changes to this Agreement must be agreed to and memorialized in
writing by both parties.
15. NOTICES, ETC.
All notices, requests, demands and other communications hereunder shall be
in writing and, unless otherwise provided herein, shall be deemed to have been
duly given upon personal delivery or upon deposit in the United States Mail,
postage prepaid, certified or registered mail, return receipt requested, as
follows:
If to Employer:
R-Tec Corporation
0000 X. Xxxxxxxxxx Xxx.
Xxxxxxxx, Xxxxx 00000
If to Employee:
Xxxx X. Xxxxxxx
00000 X. Xxxxxxxxx Xx.
Xxxxx, Xxxxx 00000
or at such other address as shall have been furnished to the other in writing in
accordance herewith, except that such notice of such change shall be effective
only upon receipt.
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IN WITNESS WHEREOF, this Agreement has been executed as of the day and year
written below.
DATED this 3rd day of November, 1999.
EMPLOYER: EMPLOYEE:
R-Tec Corporation
By /s/ XXXXXXX X. XXXXXXXX By /s/ XXXX X. XXXXXXX
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XXXXXXX X. XXXXXXXX XXXX X. XXXXXXX
Its President
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