CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "AGREEMENT") is made and entered into
as of this 7th day of January, 2000 (the "EFFECTIVE DATE"), by and between
Telenetics Corporation, a California corporation with offices at 25111 Arctic
Ocean, Xxxx Xxxxxx, Xxxxxxxxxx 00000 (the "COMPANY"), and Xxxxxx X. Xxxxxx, an
individual who resides at the address set forth on the signature page hereof
("CONSULTANT"), who may be collectively referred to as the "PARTIES."
R E C I T A L S
A. The Company, Consultant and certain other individuals have entered
into a Stock Purchase Agreement of even date herewith (the "STOCK PURCHASE
AGREEMENT") pursuant to which the Company is purchasing all of the outstanding
capital stock of eflex Wireless, Inc., a Delaware corporation ("EFLEX").
B. The parties acknowledge that Consultant currently acts as a
consultant to eflex and has abilities and expertise that are unique and valuable
to the Company and, in connection with the Stock Purchase Agreement, the Company
desires to retain Consultant to provide certain consulting services for the
Company, and Consultant is willing to provide the consulting services requested
by the Company.
C. The Company and Consultant have determined that such engagement of
Consultant is mutually beneficial and should be subject to a mutually acceptable
written agreement, and that the retention by eflex of the Consultant as a
consultant is being terminated concurrently with the effectiveness of this
Agreement.
A G R E E M E N T
NOW, THEREFORE, in consideration of the foregoing premises, the
following mutual covenants and agreements contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by each of the Parties hereto, the Parties hereto agree, intending
to be legally bound, as follows:
1. SERVICES TO BE PERFORMED BY CONSULTANT.
1.1 SCOPE AND NATURE OF SERVICES. Commencing on the Effective Date, the
Company agrees to engage Consultant, and Consultant agrees to offer Consultant's
services to the Company, as a consultant. Consultant agrees to render
Consultant's best business expertise, advice and services to the directors,
executive officers, managers or employees of the Company as the Company may
reasonably request concerning the business of the Company including, without
limitation, the business of eflex. Consultant shall render such services at such
locations as the Company, within its sole discretion, deems appropriate
(recognizing that the Consultant is based in the Tampa area and that is where
the majority of the services are to be performed). This Agreement shall not be
construed as obligating the Company to request any amount (or any specific
amount) of consulting services from Consultant.
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1.2 METHOD OF PERFORMING SERVICES. Consultant shall provide the
consulting services to the Company promptly upon request by the Company during
the term of this Agreement, and it shall be the duty of Consultant in providing
these consulting services to make periodic reports to the Company, from time to
time, as the Company may deem appropriate.
1.3 PLACE OF WORK. The consulting services described herein will be
carried out at such reasonable locations as may be agreed upon by the Company
and Consultant from time to time. If the Company determines that it is in the
best interest of the Company for the consulting services described herein to be
carried out at the facilities of the Company, such services shall be performed
at the facilities of the Company and the Company shall provide Consultant with
such entry and access to the facilities of the Company (during normal business
hours, unless otherwise authorized by the Company) to the extent necessary to
allow Consultant to perform Consultant's obligations under this Agreement.
2. TERM AND TERMINATION.
2.1 TERM. The term of this Agreement (the "TERM") shall be from the
Effective Date until this Agreement is terminated by either Party upon 30 days'
prior written notice to the other Party; PROVIDED, HOWEVER, that this Agreement
may be terminated by the Company for Good Cause (as defined below) effective
upon delivery of written notice to Consultant given at any time. "GOOD CAUSE"
shall exist if:
(a) Consultant is arrested for domestic violence or for any
other reason or is charged with a crime;
(b) Consultant in bad faith commits any act (including, but
not limited to, any act that would constitute fraud, misappropriation,
dishonesty, or embezzlement) or in bad faith omits to take any action
to the material detriment of the Company or any of its affiliates;
(c) Consultant intentionally commits during the Term of this
Agreement any act of material misconduct (including, but not limited
to, sexual harassment, racial vilification, or unlawful
discrimination);
(d) Consultant fails or refuses to perform consulting duties
assigned to him by the Company and fails to correct such breach within
five days after notice is given to Consultant by the Company of such
breach;
(e) Consultant becomes physically or mentally incapacitated or
disabled or otherwise unable fully to discharge his duties hereunder
for a period of more than 30 consecutive days or more than 45 days
within any two-month period;
(f) In the opinion of a medical doctor retained by the
Company, after a physical examination and reasonable diagnostic
procedures, Consultant is found to be addicted to any drug, including
alcohol;
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(g) Consultant breaches any term of this Agreement and fails
to correct such breach within five days after notice is given to
Consultant by the Company of such breach; or
(h) Consultant attempts to resign in anticipation of discharge
for any reason mentioned in SECTION 2.1(a) through SECTION 2.1(g), or
the Company accepts Consultant's resignation in lieu of making a
termination for any reason mentioned in SECTION 2.1(a) through SECTION
2.1(g).
2.2 EFFECT OF TERMINATION. Consultant agrees that in connection with
the termination of this Agreement for any reason, Consultant shall only be
entitled receive the pro rata share of the consulting fee earned prior to the
termination in accordance with SECTION 3.1, plus reimbursement in accordance
with SECTIONS 3.3 AND 3.4 for materials and travel expenses incurred prior to
the termination. Such payments described in this SECTION 2.2 shall be the
exclusive and sole remedy of Consultant for any termination of this Agreement,
and Consultant covenants not to assert or pursue any other remedies, at law or
in equity, with respect to any termination of this Agreement. In addition, the
Parties agree that if Consultant is terminated for Good Cause, any and all
unexercised options granted to Consultant pursuant to this Agreement, whether
vested or unvested, shall immediately terminate and be of no further force or
effect.
3. CONSIDERATION AND PAYMENTS.
In consideration of the consulting services to be provided by
Consultant pursuant to this Agreement:
3.1 CONSULTING FEE. The Company shall pay Consultant a consulting fee
of $9,583.33 per month, which amount shall be payable in advance in monthly
installments commencing on January 15, 2000 and shall be prorated for any
partial month occurring during the Term of this Agreement.
3.2 OPTIONS. Concurrently with the execution of this Agreement,
Consultant shall receive an option to purchase shares of Common Stock of the
Company, a copy of which option shall be attached hereto as EXHIBIT A and
incorporated herein by reference.
3.3 COST OF MATERIALS. If Consultant shall reasonably determine that
Consultant will be unable to perform the consulting services under this
Agreement without procuring certain materials with an aggregate cost exceeding
$100, Consultant shall promptly notify the Company in writing of its need to
procure such materials and the date by which such materials must be received by
Consultant. Upon receipt of such notice from Consultant, the Company shall
thereafter have the option to either procure the materials itself or, in the
alternative, authorize Consultant to procure the materials directly. If the
Company should elect to authorize Consultant to procure the materials directly,
it shall notify Consultant of such election, and the Company agrees to reimburse
Consultant within 10 business days of its receipt of a separate invoice from
Consultant for Consultant' actual cost of the materials as authorized by the
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Company.
3.4 TRAVEL EXPENSES. Upon submission of a separate monthly invoice, the
Company shall also reimburse Consultant for all travel-related expenses
reasonably incurred by Consultant in connection with this Agreement and
authorized in advance in writing by the Company, including, without limitation,
air fare, hotel and rental car expenditures. However, unless explicitly approved
by the Company in writing, the Company will not reimburse Consultant for
expenses incurred in traveling from Consultant's office or residence to the
Company or from the Company to Consultant's office or residence. The Company
agrees to pay the amounts due under this SECTION 3.4 on or before the 30th day
of the month following the month of submission of such invoice.
4. NONDISCLOSURE AND CONFIDENTIALITY.
In the course of Consultant providing the consulting services under
this Agreement, Consultant will have access to the Company's trade secrets,
proprietary information and confidential information, the use, application or
disclosure of any of which will cause substantial and possible irreparable
damage to the business and asset value of the Company. Accordingly, Consultant
accepts and agrees to be bound by the following provisions:
4.1 DEFINITIONS. For the purposes of this Agreement, the following
definitions apply:
(a) "TRADE SECRETS" shall specifically include, but are not
limited to, plans, customer lists, compilations, program devices,
formulas, designs, ideas, concepts, prototypes, drawings, methods,
techniques, systems, processes, procedures, computer software, programs
or codes, whether tangible or intangible, and whether or how stored,
compiled or memorialized physically, electronically, graphically,
photographically or in writing (including, without limitation, source
and object codes, flow charts, algorithms, coding sheets, doctrines,
subroutines, compilers, assemblers, design concepts and related
documentation and manuals), discoveries, hardware, machines and devices
whether patentable or not, including, without limitation, the nature
and results of technical and nontechnical research and development
activities, "know-how," schematics, parts lists and specifications; and
all inventions and ideas which the Company obtains from a third party
and which are derived from and related to Consultant's access to or
knowledge of any of the above. Trade Secrets also includes any
information described above which the Company treats as proprietary or
designates as a Trade Secret, whether or not owned or developed by the
Company or Consultant. Trade Secrets also include any information
described in this paragraph (a) which the Company obtains from another
party which the Company treats as proprietary or designates as Trade
Secrets, whether or not owned or developed by the Company.
(b) "CONFIDENTIAL INFORMATION" shall mean any data, materials
or information, other than Trade Secrets, that is of value to the
Company and is not generally known to competitors of the Company.
Confidential Information shall include, but not be limited to, the
identity of various suppliers, information about the Company's
executives and employees, financial information, business and marketing
plans, marketing techniques, price lists, pricing policies and the
Company's business methods. Confidential Information also includes any
information described above which the Company obtains from a third
party and which the Company treats as proprietary or designates as
Confidential Information, whether or not owned by or developed by the
Company.
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Anything in this Agreement to the contrary notwithstanding, Trade
Secrets and Confidential Information shall not include information which is (i)
lawfully disclosed to Consultant by a third party unrelated to the Company, (ii)
generally known in the telemetry services industry other than by the
unauthorized actions of Consultant, or (iii) in the public domain other than by
the unauthorized actions of Consultant.
4.2 PROPRIETARY INFORMATION. Consultant hereby acknowledges that all
Trade Secrets and Confidential Information are the exclusive property of the
Company. Specifically, Consultant acknowledges and agrees that all Trade Secrets
and Confidential Information which Consultant has developed, or in which
Consultant has participated in the development, while engaged by the Company or,
which Consultant participates in the development in the future during the term
of its engagement by the Company shall be the exclusive property of the Company
and Consultant shall have no ownership interest therein. Consultant further
agrees that it will not, directly or indirectly, incorporate any Trade Secrets
or Confidential Information, or any part thereof, into any system, product,
service or other item later designed or prepared by Consultant for any party or
parties other than the Company.
4.3 PROHIBITION ON USE OF TRADE SECRETS. Consultant shall not, directly
or indirectly, in any manner or form use, disclose, provide or otherwise make
available in any manner in whole or in part any Trade Secrets during the period
Consultant has access to the Trade Secrets and thereafter, other than to the
Company's employees in the scope of their employment, or to other consultants
performing services for the Company in connection with the consulting services
performed by Consultant hereunder.
4.4 PROHIBITION ON USE OF CONFIDENTIAL INFORMATION. Consultant shall
not, directly or indirectly, in any manner or form use, disclose, provide or
otherwise make available in any manner in whole or in part any Confidential
Information during the period Consultant has access to the Confidential
Information and thereafter, other than to the Company's employees in the scope
of their employment, or to other consultants performing services for the Company
in connection with the consulting services performed by Consultant hereunder.
4.5 NONCOMPETITION AND NONSOLICITATION. Consultant expressly promises
and agrees that Consultant will fully comply with the covenants and provisions
contained in SECTION 7 of the Stock Purchase Agreement, which provisions are
incorporated herein by reference, as if such provisions were set forth in full
herein.
4.6 PROHIBITION ON REPRODUCTION. Consultant shall have no right to
print or copy, directly or indirectly, in whole or in part, any Trade Secrets or
Confidential Information or any documentation pertaining thereto, except as
required to perform Consultant's responsibilities hereunder.
4.7 PROTECTIVE MEASURES. Consultant shall take all necessary and
appropriate action, whether by instruction, agreement or otherwise to ensure the
protection, confidentiality and security of the Trade Secrets and Confidential
Information and to satisfy Consultant's obligations under this Agreement. The
standard of care which Consultant shall employ shall conform at least to
industry standards and shall be adequate to ensure the protection,
confidentiality and security of the Trade Secrets and Confidential Information.
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Consultant agrees that Consultant's obligations with respect to the
confidentiality and security of all materials disclosed to Consultant under the
terms of this Agreement shall survive the termination of this or any agreement
or relationship between the Company and Consultant or the performance of
consulting services by Consultant on behalf of the Company.
4.8 RETURN OF MATERIALS. All notes, data, reference materials,
sketches, disks, memoranda, tapes, manuals, files, documentation and records
contained in any medium (written document, electronic or otherwise) in any way
relating to any of the Trade Secrets or Confidential Information or the
Company's business shall belong exclusively to the Company and Consultant agrees
to turn over to the Company all copies of such materials in its possession at
the request of the Company or, in the absence of such a request, upon the
termination of Consultant's consulting services for the Company within three
business days of such termination. Consultant further agrees, upon request by
the Company, to promptly remove from Consultant's possession and dominion and
return to the Company or positively destroy any software programs or data
entered into Consultant's computer or libraries pertaining to the Trade Secrets
and Confidential Information.
5. OWNERSHIP AND COPYRIGHT.
The Company reserves the right to approve or reject any such employee,
contractor or agent, such approval not to be unreasonably withheld. The Company
shall own all right, title and interest in and to all work product created by
Consultant hereunder, including all copyrights and proprietary rights therein.
Consultant expressly acknowledges that the Parties have agreed that all
copyrightable aspects of each of Consultant's work products hereunder and all
work in process are to be considered "works made for hire" within the meaning of
the Copyright Act of 1976, as amended (the "Act"), and that the Company is the
"author" within the meaning of the Act. All such copyrightable works, as well as
all copies of such works in whatever medium fixed or embodied, shall be owned
exclusively by the Company at its creation, and Consultant hereby expressly
disclaims any interest in any of them. Consultant expressly acknowledges that
Consultant is not a joint author and that all work product and all work in
process created by Consultant hereunder are not joint works under the Act.
If (and to the extent) that the work product and work in process
created by Consultant hereunder or any part or element thereof is found as a
matter of law not to be a "work made for hire" within the meaning of the Act,
Consultant hereby conveys and assigns to the Company the sole and exclusive
right, title and interest in the ownership and patent rights to all such work in
process and work product created hereunder, and all copies of any of them,
without further consideration, and agrees to assist the Company, at the expense
of the Company, to register, and from time to time to enforce, all patents,
copyrights and other rights and protection relating to the work product and work
in process created hereunder in any and all countries. To that end, Consultant
agrees to execute and deliver all documents requested by the Company in
connection therewith, and irrevocably designates and appoints the Company as
Consultant's agent and attorney-in-fact to act for and in Consultant's behalf
and stead to execute, register and file any such applications, and to do all
other lawfully permitted acts to further the registration, prosecution and
issuance of patents, copyrights or similar protection with the same legal force
and effect as if executed by Consultant.
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Any ideas, conception, know-how or techniques relating to the work
product and work in process developed by Consultant hereunder shall also be the
sole and exclusive property of the Company.
The Company shall own each invention, including inventions relating to
an appearance design, developed under this Agreement, including applications
filed thereon and patents issued thereon. Consultant hereby assigns to the
Company, its successors and assignees, any such invention together with the
right to seek protection by obtaining patent rights therefor worldwide and to
claim all rights of priority thereunder, and the same shall become and remain
the Company's property whether or not such protection is sought. Consultant
shall, upon the Company's request and expense, cause patent applications to be
filed thereon, through solicitors or patent attorneys designated by the Company
and forthwith assign all such applications to the Company, its successors and
assignees. Consultant shall give the Company and attorneys all reasonable
assistance in connection with the preparation and prosecution of any such patent
applications and shall cause to be executed all such assignments and other
instruments and documents as the Company may consider necessary or appropriate
to carry out the intent of this SECTION 5.
6. EMPLOYEES AND AGENTS OF CONSULTANT.
Except as otherwise approved by the Company in writing, Consultant
shall provide the Company with ten days' advance notice prior to employing or
retaining any employee, subcontractor, or agent to assist with or contribute to
Consultant's duties, obligation or performance hereunder. The Company reserves
the right to approve or reject any such employee, contractor or agent, such
approval not to be unreasonably withheld. Consultant agrees that it shall have
and maintain, for so long as this Agreement is in effect, written agreements
with all employees, subcontractors or agents engaged by Consultant who assist
with or contribute to Consultant's duties, obligations or performance hereunder.
Such written agreements shall contain provisions sufficient to establish the
rights and benefits contemplated by, and to assure compliance with this
Agreement, including, but not limited to, the provisions of SECTIONS 4 AND 5,
above. Consultant shall furnish the Company with copies of such written
agreements and shall cause such subcontractors, employees and agents to execute
and deliver such further certificates, acknowledgments, waivers and assignments
as may be appropriate to give effect to the foregoing.
7. APPLICABILITY TO PRIOR DEALINGS.
Consultant hereby acknowledges that Consultant and Consultant's
employees and agents may have had access to Trade Secrets and Confidential
Information prior to the effective date of this Agreement. Consultant hereby
agrees that any Trade Secrets and Confidential Information Consultant and
Consultant's employees and agents may have acquired prior to the effective date
of this Agreement shall be subject to the terms and conditions of SECTIONS 4 AND
5 above, and that Consultant shall cause each of Consultant's employees and
agents to treat such Trade Secrets and Confidential Information accordingly.
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8. SURVIVAL OF OBLIGATIONS BEYOND TERMINATION.
The obligations of Consultant under SECTIONS 4 THROUGH 7 and the
warranties and remedies under SECTIONS 9 THROUGH 12 shall not terminate upon the
termination of this Agreement, but, rather, shall continue in effect thereafter.
9. INJUNCTIVE RELIEF.
Consultant hereby acknowledges and agrees that any violations of
SECTIONS 4 THROUGH 7, 10 AND 14 will cause damage to the Company in an amount or
amounts difficult to ascertain and any remedies at law for such damages will be
inadequate. Accordingly, in addition to any other relief to which the Company
may be entitled at law or in equity, the Company shall be entitled to temporary
and/or permanent injunctive or other equitable relief from any such breach or
threatened breach by Consultant without proof of actual damages that have been
or may be caused to the Company by such breach or threatened breach.
10. WARRANTY.
10.1 EXPRESS WARRANTIES. As of the date hereof and as of all dates
prior to the expiration of this Agreement, Consultant warrants and represents to
the Company the following:
10.1.1 DISCLOSURE BY CONSULTANT. Consultant hereby
acknowledges that the Company does not wish to receive from Consultant
any information not owned by the Company which may be considered
confidential or proprietary to Consultant or to any third party. Any
information or materials disclosed or to be disclosed by Consultant to
the Company is not confidential or proprietary to Consultant or to any
third party. Accordingly, no obligation of any kind is assumed by or to
be implied against the Company by virtue of this Agreement or the
relationship between the Parties hereunder or with respect to any
information received (in whatever form or whenever received) from
Consultant relating to the subject matter hereof, and the Company will
be free to reproduce and to use and disclose to others such information
without limitation. Neither this Agreement nor the relationship between
the Parties, will impair the right of the Company to develop, make,
use, procure, or market products or services now or in the future which
may be competitive with those offered by Consultant, nor require the
Company to disclose any planning or other information to Consultant.
Consultant covenants and agrees not to incorporate into any work
performed or created hereunder any material owned or copyrighted or
confidential to any third party.
10.1.2 AUTHORITY. Consultant has the authority to enter into
this Agreement. The execution of this Agreement by Consultant and the
performance of the services contemplated hereunder do not (and will
not) violate any other agreement, policy or order to which Consultant
is subject.
10.2 BREACH OF WARRANTY. If Consultant is in breach of any warranty or
representation under this Agreement, the Company shall have all rights and
remedies available to it in law and in equity.
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11. STATUS AS INDEPENDENT CONTRACTOR.
The Parties are entering into this Agreement as independent contractors
and no employment relationship, partnership, joint venture or other association
shall be deemed created by this Agreement.
11.1 TAXES. The Company shall pay Consultant directly, without payroll
deductions of any kind whatsoever, all monies which may become due and payable
hereunder, as, when, and to the extent those payments become payable. Consultant
shall have the entire responsibility to discharge all the obligations under
federal, state or local laws, regulations or orders now or hereafter in effect,
relating to taxes, unemployment compensation or insurance (including, but not
limited to, the Unemployment Insurance Code of the State of California), social
security, worker's compensation, disability pensions and tax withholdings
(collectively, "TAX OBLIGATIONS"). Consultant shall fully indemnify the Company
from and against all liabilities, obligations, damages, assessments, penalties,
interest, costs (including, without limitation, any attorneys' fees) and other
expenses incurred by the Company resulting from Consultant's failure to properly
discharge its Tax Obligations or otherwise arising out of or related to the
engagement of Consultant by the Company pursuant to this Agreement.
11.2 AUTHORITY. Consultant is not authorized to bind the Company or to
incur any obligation or liability on behalf of the Company except as expressly
authorized by the Company in writing.
11.3 BENEFITS. Consultant acknowledges that the Company shall not be
providing health insurance, retirement plan contributions, workers' compensation
or other benefits to Consultant and/or Consultant's employees, if any, and
Consultant shall be solely responsible for obtaining and/or providing such
benefits.
11.4 METHODS. Except as otherwise provided herein, Consultant shall be
free to pursue whatever means Consultant chooses in performing the services
described herein. The Company recognizes that this is not an exclusive agreement
and the Consultant may perform services for other parties.
12. GENERAL PROVISIONS.
12.1 ATTORNEYS' FEES AND COSTS. In any suit, action or proceeding
(including arbitration) arising out of or related to the Agreement or the
transactions contemplated hereby, including any appeals (an "ACTION"), the
non-prevailing party in that Action shall pay to the prevailing party a
reasonable sum for ordinary and necessary attorneys', paralegals', accountants'
and experts' fees and costs incurred in connection with prosecuting or defending
the Action and/or enforcing any judgment, order, ruling, or award (collectively,
a "DECISION") granted therein, in addition to any damages and costs which the
prevailing party otherwise would be entitled. Any Decision entered in the Action
shall contain a specific provision providing for the recovery of reasonable
attorneys', paralegals', accountants' and experts' fees and costs incurred in
enforcing the Decision. The court or arbitrator may fix the amount of reasonable
attorneys', paralegals', accountants' and experts' fees and costs on the request
of either party. For the purposes of this SECTION 12.1, all attorneys',
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paralegals', accountants' and experts' fees and costs shall include, but not be
limited to, fees and costs incurred in the following: (i) postjudgment motions
and collection actions; (ii) contempt proceedings; (iii) garnishment, levy, and
debtor and third party examinations; (iv) discovery; and (v) bankruptcy.
12.2 NOTICES. All notices, demands or other communications which are
required or are permitted to be given in this Agreement shall be in writing and
shall be deemed to have been sufficiently given (i) upon personal delivery, (ii)
the third business day following due deposit in the United States mail, postage
prepaid, and sent certified mail, return receipt requested, correctly addressed
or (iii) when receipt is acknowledged if sent via facsimile transmission as
follows: If to the Company, to the address set forth in the introductory
paragraph of this Agreement. If to Consultant, to the address set forth below
Consultant's signature at the end of this Agreement. If notice is sent to the
Company, a copy shall be sent to:
Xxxxx X. Xxxxxxx, Esq.
Xxxxx & Xxxxxx, LLP
000 Xxxxx Xxxxxxxxx, 00xx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Either party may give written notice of a change of address by
certified mail, return receipt requested, and after notice of such change has
been received, any notice shall be given to such party in the manner above
described at such new address.
12.3 EXECUTION IN COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, but all
of which together shall constitute one and the same instrument.
12.4 WAIVER AND AMENDMENT. This Agreement may be amended, supplemented,
modified and/or rescinded only through an express written instrument signed by
both Parties or their respective successors and assigns. Either party may
specifically and expressly waive in writing any portion of this Agreement or any
breach hereof, but no such waiver shall constitute a further or continuing
waiver of any preceding or succeeding breach of the same or any other provision.
The consent by one party to any act for which such consent was required shall
not be deemed to imply consent or waiver of the necessity of obtaining such
consent for the same or similar acts in the future.
12.5 SEVERABILITY. Each provision of this Agreement is intended to be
severable. If any covenant, condition or other provision contained in this
Agreement is held to be invalid, void or illegal by any court of competent
jurisdiction, such provision shall be deemed severable from the remainder of
this Agreement and shall in no way affect, impair or invalidate any other
covenant, condition or other provision contained in this Agreement. If such
condition, covenant or other provision shall be deemed invalid due to its scope
or breadth, such covenant, condition or other provision shall be deemed valid to
the extent of the scope or breadth permitted by law.
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12.6 GOVERNING LAW. All matters relating to or arising out of this
Agreement, whether in contract, tort or otherwise, shall be governed by and
interpreted in accordance with the laws of the State of California, including
all matters of construction, validity, performance and enforcement, without
giving effect to principles of conflict of laws. The Parties hereby consent, in
any dispute, action, litigation, arbitration or other proceeding concerning this
Agreement, to the jurisdiction of the state or federal courts of California,
with the County of Orange being the sole venue for the bringing of the action or
proceeding.
12.7 ASSIGNABILITY. Because the Company has agreed to retain the
services of Consultant based on an investigation of Consultant's capabilities,
the importance of Consultant's services to the ongoing business of the Company
and the personal relationship that has evolved between the Parties, neither this
Agreement nor any interest herein shall be assignable (voluntarily,
involuntarily, by judicial process or otherwise), in whole or in part, by
Consultant without the prior written consent of the Company. Any attempt at such
an assignment without such consent shall be void and, at the option of the
Company, shall be an incurable breach of this Agreement resulting in the
immediate termination of this Agreement.
12.8 INTERPRETATION. The language in all parts of this Agreement shall
be in all cases construed simply according to its fair meaning and not strictly
for or against any party. Whenever the context requires, all words used in the
singular will be construed to have been used in the plural, and vice versa, and
each gender will include any other gender. The captions of the Sections and
Subsections of this Agreement are for convenience only and shall not affect the
construction or interpretation of any of the provisions of this Agreement.
12.9 INTEGRATION. This Agreement, together with the exhibits and
schedules hereto, incorporate the entire understanding of the parties with
respect to the subject matter hereof and supersede all previous oral and written
and all contemporaneous oral negotiations, commitments, writings, and
understandings. In addition, the parties expressly agree that this Agreement
supersedes and replaces the Employment and Noncompetition Agreement dated as of
June 1, 1999 between Consultant and eflex, as successor to Residential Utility
Meter Service's, Inc., a Florida corporation (the "EFLEX EMPLOYMENT AGREEMENT"),
and that the eflex Employment Agreement is of no further force or effect.
12.10 SURVIVABILITY. All covenants, agreements, representations and
warranties made by the Consultant shall survive the termination of this
Agreement.
12.11 FURTHER ASSURANCES. In addition to the documents and instruments
to be delivered as provided in this Agreement, each of the Parties shall, from
time to time at the request of the other party, execute and deliver to the other
party such other documents and shall take such other action as may be necessary
or proper to more effectively carry out the terms of this Agreement.
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IN WITNESS WHEREOF, the Parties have executed this Agreement effective
as of the date first set forth above.
TELENETICS CORPORATION
By: /s/ Xxxxxxx X. Armani
-----------------------------------
Xxxxxxx X. Armani, President
CONSULTANT:
/s/ Xxxxxx X. Xxxxxx
--------------------------------------
Xxxxxx X. Xxxxxx, an individual
0000 XXXXXXXXX XXXX
--------------------------------------
Xxxxxx Xxxxxxx
XXXXX, XXXXXXX 00000
--------------------------------------
City, State, Zip Code
--------------------------------------
Business Telephone Number
--------------------------------------
Business Facsimile Number
--------------------------------------
Social Security or Federal Tax
Identification Number
12
EXHIBIT A
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Copy of Stock Option Agreement
13
