EMPLOYMENT AGREEMENT
Exhibit
10.E.01
This
EMPLOYMENT
AGREEMENT
(“Agreement”) is made and entered into by and between Opticon Systems Inc., a
Nevada corporation, (the “Company”), and Xxxx Xxxxxxxx Xxxxxx (“Employee”)
effective as of December 1, 2004 or the actual date Employee first reports
for
work ("Start Date").
RECITAL
The
Company desires to employ Employee, and Employee is willing to accept employment
by the Company, in each case on the terms and subject to the conditions set
forth in this Agreement. NOW,
THEREFORE,
the
parties hereto hereby agree as follows:
AGREEMENT
1.
Position
and Duties.
1.1 During
the term of this Agreement, Employee agrees to be employed by and to serve
the
Company on a full-time basis as Chief Executive Officer and President to perform
such duties consistent with such position as may be assigned to him from time
to
time by the Board of Directors. Employee’s principal place of business with
respect to his services to the Company shall be Dallas, Texas, provided
that
employee agrees to undertake such travel as may be required in the performance
of his duties. All travel expenses of Employee shall be reimbursed in accordance
with Section 3.3 (c) below.
1.2 Employee
shall carry out his duties under the general supervision and direction of the
Board of Directors of the Company in accordance with the Company’s policies,
rules and procedures in force from time to time.
1.3 Employee
shall devote his full time, attention, skill and efforts to his tasks and duties
hereunder and to the affairs of the Company. Without the prior written consent
of the Company, Employee shall not provide services for compensation to any
other person or business entity during the Term of his employment by the
Company, as defined in paragraph 2.1, or engage in any other business activity,
whether or not such other business activity is pursued for profit or pecuniary
advantage unless approved by the Board of Directors.
1
of
16
2.
Term
of Employment.
2.1
Basic
Term. The
term
of employment under this Agreement (the “Term”) shall begin on Start Date and
shall continue through two (2) calendar years after the Start Date (the
“Expiration Date”), unless earlier terminated in accordance with Article 2 or
extended pursuant to the following sentence. Unless written notice is given
by
the Company or Employee to the other at least ninety (90) days prior to the
Expiration Date (or any later date to which the Term shall have been extended
in
accordance with this Section 2.1) advising that the one giving such notice
does
not desire to extend or does desire to further extend this Agreement, the Term
shall automatically be extended for an additional one-year period without
further action of either the Company or Employee.
2.2 Termination
for Cause. Termination
for Cause (as defined in Section 2.8(a) below) may be effected by the Company
at
any time during the Term of this Agreement and shall be effected by written
notification to Employee from the Chairman of the Board of Directors or his
designee, stating the reason for termination. Such termination shall be
effective immediately upon the giving of such notice, unless the Board of
Directors shall otherwise determine. Upon Termination for Cause, Employee shall
be paid all accrued salary, any benefits under any plans of the Company in
which
Employee is a participant to the full extent of Employee’s rights under such
plans, accrued vacation pay and any appropriate business expenses incurred
by
Employee in connection with his duties hereunder prior to such termination,
all
to the date of termination, but Employee shall not be entitled to any other
compensation or reimbursement of any kind, including without limitation,
severance compensation.
2.3 Voluntary
Termination. In
the
event of a Voluntary Termination (as defined in Section 2.8(c) below), the
Company shall pay to Employee all accrued salary, bonus compensation to the
extent earned, any benefits under any plans of the Company in which Employee
is
a participant to the full extent of Employee’s rights under such plans, accrued
vacation pay and any appropriate business expenses incurred by Employee in
connection with his duties hereunder, all to the date of termination, but no
other compensation or reimbursement of any kind, including without limitation,
severance compensation. Employee may effect a Voluntary Termination by giving
sixty (60) days’ written notice of such termination to the Company.
2.4 Termination
by Death. In
the
event of Employee’s death during the Term of this Agreement, Employee’s
employment shall be deemed to have terminated as of the last day of the month
during which his death occurs and the Company shall pay to his estate or such
beneficiaries, as Employee may from time to time designate all accrued salary,
any benefits under any plans of the Company in which Employee is a participant
to the full extent of Employee’s rights under such plans, accrued vacation pay
and any appropriate business expenses incurred by Employee in connection with
his duties hereunder, all to the date of termination, but Employee’s estate
shall not be paid any other compensation or reimbursement of any kind, including
without limitation, severance compensation.
2
of 16
2.5 Termination
by Reason of Disability. If,
during the Term of this Agreement, a physician selected by the Company certifies
that Employee has become physically or mentally incapacitated or unable to
perform his full-time duties under this Agreement, and that such incapacity
has
continued for a period of five consecutive months or 180 calendar days within
any period of 365 consecutive days, the Company shall have the right to
terminate Employee’s employment hereunder by written notification to Employee,
and such termination shall be effective on the seventh (7th)
day
following the giving of such notice (“Termination by Reason of Disability”). In
such event, the Company will pay to Employee all accrued salary, any benefits
under any plans of the Company in which Employee is a participant to the full
extent of Employee’s rights under such plans, accrued vacation pay, any
appropriate business expenses incurred by Employee in connection with his duties
hereunder, all to the date of termination, and all severance compensation
required under Section 4.1, but Employee shall not be paid any other
compensation or reimbursement of any kind. In the event of a Termination by
Reason of Disability, upon the termination of the disability, the Company will
use its best efforts to reemploy Employee, provided that such reemployment
need
not be in the same capacity or at the same salary or benefits level as in effect
prior to the Termination by Reason of Disability.
2.6 Employee’s
Obligation Upon Termination.
Upon
the Termination of Employee’s employment for any reason, Employee shall within
ten (10) days of such termination return to the Company all personal property
and proprietary information in Employee’s possession belonging to the Company.
Unless and until all such property and information is returned to the Company
(which shall be determined by the Company's standard termination and check-out
procedures), the Company shall have no obligation to make any payment of any
kind to Employee hereunder.
2.7 Definitions.
For
purposes of this Agreement the following terms shall have the following
meanings:
a)
“Termination for Cause” shall
mean termination by the Company of Employee’s employment by the Company by
reason of:
(i)
Employee’s willful dishonesty towards, fraud upon, or deliberate injury or
attempted injury to, or breach of fiduciary duty to, the Company;
(ii)
Employee’s material breach of this Agreement, including any Exhibit hereto, or
any other agreement to which Employee and the Company are parties;
(iii)
Employee’s use or possession of illegal drugs at any time, use of alcoholic
beverages during working hours or on Company property except when specifically
allowed by a company sponsored function, improper use of prescription drugs
during working hours or on Company property or Employee reporting to work under
the influence of illegal drugs or alcohol;
3
of 16
(iv)
Conduct by Employee, whether or not in connection with the performance of the
duties contemplated hereunder, that would result in serious prejudice to the
interests of the Company if Employee were to continue to be employed, including,
without limitation, the conviction of a felony or a good faith determination
by
the Board of Directors that Employee has committed acts involving moral
turpitude; or it will always be an interpretation so I believe it is not
necessary
(v)
Any
material violation of any rule, regulation or policy of the Company by Employee
or Employee’s failure to follow reasonable instructions or directions of the
Board of Directors of the Company(as it relates to the Employee’s written job
description) or any policy, rule or procedure of the Company in force from
time
to time. All Company policies, rules, regulations and procedures currently
in
force must be provided to Employee in writing before execution of this
Agreement. Any changes to Company policies, rules and procedures must be
provided to Employee in writing thirty (30) days prior to the changes becoming
effective.
b)
“Voluntary Termination”
shall
mean termination by Employee of Employee’s employment other than (i) Termination
by Reason of Disability and (ii) Termination by reason of Employee’s
Death.
| 3. |
Salary, Benefits and Bonus
Compensation.
|
| 3.1 |
Base
Salary.
As
payment for the services to be rendered by Employee as provided in
Section
1 and subject to the terms and conditions of Section 2, the Company
agrees
to pay to Employee a “Base Salary at the rate of $25,000 (U S Dollars) per
month payable in accordance with the Company’s regular payroll practices
(twice monthly). Such rate and Employee’s performance shall be reviewed by
the Company’s Board of Directors on an annual basis, commencing Starting
Date, for a determination of whether an adjustment in Employee’s Base
Salary should be made, which adjustment shall be in sole discretion
of the
Company’s Board of Directors.
|
| 3.2 |
Founders
Stock. Upon
the Starting Date, the employee will be issued four (4%) percent of
the
companies issued common stock in the Company.
The
Company commits that this is an undiluted 4% commitment of the companies
issued common stock and that if additional stock (in excess of the
100,000,000 shares) is issued by the Board of Directors, the Company
will
issue those numbers of shares to the employee at a cost of $.0001 per
share to keep the 4% share of issued stock whole and in tact. This
commitment will survive this contract in perpetuity and can only be
terminated by the voluntary resignation of the
employee.
|
4
of 16
| 3.3 |
Bonus.
A
signing bonus will be paid in the amount of one (1) months salary upon
funding. The Board of Directors will establish a bookings goal for
the
company each year. Employee shall be entitled to a bonus of $2,000
per
percentage point (Monthly Bookings / Corporate Bookings Goal) of the
goal
attained in the previous month. This shall be paid on the last day
of the
next month.
|
| 3.4 |
Additional
Benefits.
During the Term of this Agreement, Employee shall be entitled to the
following fringe benefits:
|
(a) Employee
Benefits. Employee
shall be included in all group insurance plans and other benefit plans and
programs made available to management employees of the Company.
(b) Vacation Employee
is entitled to take 4 weeks paid vacation within one year from his Starting
Date.
(c) Reimbursement
for Expenses. The
Company shall reimburse Employee for reasonable and properly documented
out-of-pocket business and/or entertainment expenses incurred by Employee in
connection with his duties under this Agreement in accordance with the Company’s
reimbursement policy in effect from time to time. Company’s reimbursement policy
currently in force must be provided to Employee in writing before execution
of
this Agreement. Any changes to Company’s policy must be provided to Employee in
writing thirty (30) days prior to the changes becoming effective.
| 4. |
Severance Compensation.
|
| 4.1 |
Acceleration
of Payments.
The Company may, in the Company’s sole discretion, if Employee so requests
within thirty (30) days following a Termination by Reason of Disability,
elect to pay to Employee a lump sum severance payment by bank cashier’s
check equal to the present value of the flow of cash payments that
would
otherwise be paid to Employee.
|
5
of 16
| 4.2 |
No
Severance Compensation Under Other Termination.
In the event of a Voluntary Termination, Termination for Cause, or
Termination by reason of Employee’s Death, neither Employee nor his estate
shall be paid any severance compensation.
|
5. Other
Agreements. Employee
agrees that to induce the Company to enter into this Agreement, he has
concurrently executed and delivered to the Company (a) an Employee
Non-Disclosure Agreement and Proprietary Rights Assignment dated as of event
date herewith, in the form of Exhibit
A
hereto,
and (b) a Non-Solicitation and Non-Competition Agreement dated as of even date
herewith, in the form of Exhibit
B
hereto.
Employee hereby covenants and agrees to fully abide by each and every term
of
such agreements, and agrees and understands that a breach or violation by
Employee of any provision of any provision of either of such agreements shall
constitute grounds for Termination for Cause under Section 2.8(a)(ii) of this
Agreement, and that no such termination shall limit or affect any other rights
and remedies of the Company arising out of or in connection with any such breach
or violation. The covenants on the part of Employee contained in such agreements
shall survive termination of this Agreement, regardless of the reason for such
termination. unless specifically excluded by this agreement.
Employee
hereby represents and acknowledges that the Company is relying on the covenants
contained in such agreements in entering into this Agreement, and that the
terms
and conditions of the covenants contained in such agreements are fair and
reasonable.
| 6. |
Miscellaneous.
|
| 6.1 |
Waiver.
The
waiver of the breach of any provision of this Agreement shall not operate
or be construed as a waiver of any subsequent breach of the same or
other
provision hereof.
|
| 6.2 |
Entire
Agreement; Modifications.
This Agreement represents the entire understanding among the parties
with
respect to the subject matter hereof, and this Agreement supersedes
any
and all prior understandings, agreements, plans and negotiations, whether
written or oral with respect to the subject matter hereof including
without limitation, any understandings, agreements or obligations
respecting any past or future compensation, bonuses, reimbursements
or
other payments to Employee from the Company. All modifications to this
Agreement must be in writing and signed by both parties
hereto.
|
| 6.3 |
Notices.
All notices and other communications under this Agreement shall be
in
writing and shall be given by first class mail, certified or registered
with return receipt requested, and shall be deemed to have been duly
given
three (3) days after mailing to the respective persons named
below:
|
If
to the
Company: Opticon Systems Inc.
Address: 00000 Xxxxx Xxxxx Xxxxx
Xxxxx
Xxxxxx, Xxxxx 00000
Attn: Xxxx Xxxxxxxx Xxxxxx
President
If
to
Employee: Xxxx Xxxxxxxx Xxxxxx
00000
Xxxxx Xxxxx Xxxxx
Xxxxxx,
Xxxxx, 00000
Any
part
may change such party’s address for notices by notice duly given pursuant to
this Section
6
of 16
| 6.4 |
Headings.
The Section headings herein are intended for reference and shall not
by
themselves determine the construction or interpretation of this
Agreement.
|
| 6.5 |
Governing
Law. This
Agreement shall be governed by and construed in accordance with the
laws
of the State of Texas.
|
| 6.6 |
Severability.
Should
a court or other body of competent jurisdiction determines that any
provision of this Agreement is invalid or unenforceable, such provision
shall be adjusted rather than voided, if possible, and all other
provisions of this Agreement shall be deemed valid and enforceable
to the
extent possible.
|
| 6.7 |
Benefits
of Agreement. The
provisions of this Agreement shall be binding upon and inure to the
benefit of the executors, administrators, heirs, successors and assigns
of
the parties; provided,
however, that
except as herein expressly provided, this Agreement shall not be
assignable either by the Company (except to an affiliate of the Company)
or by Employee.
|
| 6.8 |
Counterparts.
This
Agreement may be executed in one or more counterparts, all of which
taken
together shall constitute one and the same
Agreement.
|
| 6.9 |
Withholdings.
All
compensation and benefits to Employee hereunder shall be reduced by
all
federal, state, local and other withholdings and similar taxes and
payments required by applicable law.
|
| 6.10 |
Remedies.
All
rights and remedies of the Company hereunder shall be cumulative and
the
exercise of any right or remedy shall not preclude the exercise of
another.
|
| 6.11 |
Interpretation
Review. Counsel
in the negotiation and execution of this Agreement has represented
both
parties to this Agreement, and no inference shall be drawn against
the
drafting party. Employee acknowledges that he has in fact reviewed
and
discussed this Agreement with his counsel and that he understands and
assents to the terms hereof.
|
7
of 16
| 6.12 |
Arbitration.
Any controversy or claim arising out of or relating to this agreement,
or
breach thereof (other than any action by the Company seeking an injunction
or equitable relief under the employee Non-Disclosure Agreement and
Proprietary Rights Assignment or the Non-Solicitation and Non-Competition
Agreement executed by the Employee, as amended from time to time) shall
be
settled by binding arbitration to be held in Dallas, Texas, in accordance
with the Rules of the American Arbitration Association, and judgement
upon
any proper award rendered by the arbitrators may be entered in any
court
having jurisdiction thereof. There shall be three (3) arbitrators,
one (1)
to be chosen directly by each party at will, and the third arbitrator
to
be selected by the two (2) arbitrators so chosen. To the extent permitted
by the rules of the American Arbitration Association, the selected
arbitrators may grant equitable relief. Each party shall pay the fees
of
the arbitrator selected by him and his own attorneys, and the expenses
of
his witnesses and all other expenses connected with the presentation
of
his case. The cost of the arbitration including the cost of the record
of
transcripts thereof, in any, administrative fees, and all other fees
and
cost shall be borne equally by the
parties.
|
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement effective
as of
the day and year first above written.
Company
By:
/s/
Xxxxx
Xxxxx
Xxxxx
Xxxxx
Secretary/Treasurer,
Opticon Systems Inc.
EMPLOYEE:
__/s/
Xxxx Xxxxxxxx
Xxxxxx
Xxxx
Xxxxxxxx Xxxxxx
8
of 16
Exhibit
A
EMPLOYEE
NON-DISCLOSURE AGREEMENT AND PROPRIETARY RIGHTS ASSIGNMENT
9
of 16
EMPLOYEE
NON-DISCLOSURE AGREEMENT
AND
PROPRIETARY RIGHTS ASSIGNMENT
In
return
for new or continued employment by Opticon Systems, Inc., ("Company "), the
undersigned, Xxxx Xxxxxxxx Xxxxxx, (“Employee”) agrees as follows:
1. I
agree
during the Term of my employment to promptly disclose and describe to the
Company all ideas, inventions, improvements, discoveries, enhancements,
modifications, technical developments, and works of authorship (including all
writings, computer programs, software and firmware), whether or not patentable
or copyrightable, and whether in oral, written, or in machine readable form,
which relate to or are useful to the Company’s business as presently conducted
or as it may be conducted in the future, which are conceived, reduced to
practice, or authored by me, solely or jointly with others, at any future time
within the scope of my employment or with the use of the Company’s time,
material, facilities or funds (the “Work
Product”).
2. I
hereby
assign to the Company my entire right to all of the Work Product and agree
that
the Work Product is and will be the sole and exclusive property of the Company.
I will not, however, be required to assign to the Company any invention that
I
developed entirely on my own time without using the Company’s funds, equipment,
materials or facilities, unless such invention either: (i) relates to the
Company’s business or actual or demonstrably anticipated research or development
of the Company, or (ii) results from or is related to or suggested by any
Company research, development or other activities, including without limitation
any work performed by me for the Company. I agree to take any acts and to
execute any documents that the Company reasonably requests in order to evidence
any assignment that I am required to make under this paragraph. Except for
any
written agreement between the Company, and me I will not be entitled to any
royalty, commission, or other payment or license or right with respect to the
Work Product except as specifically agreed to in this agreement.
3. No
Work
Product will be made available by me to others during or following the term
of
my employment unless the Company consents in writing except as specifically
agreed to in this agreement.
4. I
hereby
grant and agree to grant to the Company the right to obtain, for its benefit
and
in its name, patents and patent applications (including without limitation
original, continuation, reissue, utility and design patents, patents of
addition, confirmation patents, registration patents, utility models, etc.,
and
all other types of patents and the like, and all renewals and extensions of
any
of them) for the Work Product in all countries.
10
of 16
5. Both
during and after the term of my employment, I will maintain in confidence,
and
will not disclosure or use or retain for my benefit or the benefit of anyone
other than the Company any secret, proprietary or confidential information
or
trade secrets or know-how belonging to or in the possession of the Company
(the
“Proprietary
Information”),
except to the extent required to perform my assigned duties on behalf of the
Company in my capacity as an employee of the Company. The Proprietary
Information which I agree to maintain in confidence includes, but is not limited
to, technical and business information relating to the Company’s inventions or
products, research and development, finances, customers, marketing, future
business plans, machines, equipment, services, systems, supply sources, cost
of
operations, business dealings, pricing methods, regulatory matters, software,
contracts, contract performance, formulae, processes, business methods, and
any
information belonging to customers and suppliers of the Company which may have
been disclosed to me as the result my being as an employee of the Company.
My
promise to maintain the confidentiality of the Proprietary Information will
apply whether or not the Proprietary Information is in written or permanent
form, whether or not is was developed by me or by others employed by the Company
or was obtained by the Company from third parties, and whether or not the
Proprietary Information has been identified by the Company as secret or
confidential except as specifically agreed to in this agreement.
6. All
records, reports, notes, compilations or other recorded matter, and any copies
or reproductions thereof, that relate to the Company’s operations, activities,
or business, which were made or received by me during the term of my employment
(the “Company
Materials”)
are
and shall continue forever to be the Company’s exclusive property, and I will
keep the same at all times in the Company’s custody and subject to its control.
Upon termination of my employment or at the request of the Company before
termination, I will deliver to the Company all written and tangible material
in
my possession incorporating the Work Product, the Proprietary Information and
the Company Materials except as specifically agreed to in this
agreement.
7. I
agree
to cooperate with the Company or its designees, both during and after the term
of my employment, in procuring, maintaining and protecting the Company’s rights
in the Work Product and the Proprietary Information, including without
limitation patents and copyrights. I will sign all papers which the Company
deems necessary or desirable for the procurement, maintenance and protection
of
such rights. I will keep and maintain adequate and current written records
of
all Work Product in the form of notes, sketches, drawings, or reports related
to
the Work product in the manner and form requested by the Company, and such
records shall be and remain the property of the Company and be available to
the
Company at all times except as specifically agreed to in this
agreement.
8. There
is
no other contract or duty on my part now in existence to assign Work Product
or
that is inconsistent with this Agreement. I will not disclose or induce the
Company to use or bring onto the Company’s premises any confidential information
or material that I am now aware of or become aware of which belongs to anyone
other than the Company. During my employment by the Company, I will not accept
or engage in any employment, consulting, or other activity (a) detrimental
or
incompatible with my obligations to the Company, including without limitation
my
obligations under this Agreement, or (b) in any business competitive with the
Company’s business as it is presently conducted or as it may be conducted at any
future time during my employment.
11
of 16
9. I
acknowledge that my obligations and promises under this Agreement are of a
unique and intellectual character, which gives them particular value. A breach
of any of the promises or agreements contained herein will result in irreparable
and continuing damage to the Company for which there will be no adequate remedy
at law, and I agree that in addition to any other rights and remedies of the
Company for such breach (including monetary damages, if appropriate), the
Company is entitled to injunctive relieve and/or a decree for specific
performance if I breach this Agreement. All rights and remedies of the Company
for a breach by me of this Agreement shall be cumulative and the exercise of
any
right or remedy by the Company will not preclude the exercise of
another.
10. Unless
there is a written employment agreement for a specified term in effect between
the Company, and the Company or I may terminate my employment at any time,
with
or without cause, however, such termination will not affect the Company’s rights
or my obligations under this Agreement except as specifically defined in this
agreement. This Agreement represents the entire understanding between me and
the
Company as to the subject matter hereof. This Agreement may not be modified
or
amended except in a written document signed by me and the Company. This
Agreement shall inure to the benefit of the Company’s successors and assigns and
shall be binding on my heirs, administrators and legal
representatives.
11. If
the
Company waives a breach by me of any provision of this Agreement, such waiver
shall not operate or be construed as a waiver of any other or subsequent breach
by me. If any provision of this Agreement is held to be invalid, void, or
unenforceable, the remaining provisions shall nevertheless continue in full
force and effect without being impaired or invalidated in any way.
12. I
agree
that my promises contained in this Agreement are a material inducement to the
Company’s giving me employment, that the matters I have agreed to are fair and
reasonable under the circumstances, that any Proprietary Information I receive
during the course of my employment may affect the effective and successful
conduct of the Company’s business and goodwill, and that the proprietary
Information is provided to me in confidence due to my employment and my need
to
know such information in order to completely and competently perform my duties
and obligations on behalf of the Company.
13. This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Texas.
|
Dated
as December 1, 2004
|
/s/
Xxxx Xxxxxxxx
Xxxxxx
|
|
Xxxx
Xxxxxxxx Xxxxxx
|
12
of 16
Exhibit
B
NON-SOLICITATION
AND NON-COMPETITION AGREEMENT
13
of 16
NON-SOLICITATION
AND NON-COMPETITION AGREEMENT
This
Non-Solicitation and Non-Competition Agreement (“Agreement”)
is
made and entered into as of the date set forth below, by Xxxx
Xxxxxxxx Xxxxxx
(“Employee”)
in
favor and for the benefit of Opticon
Systems Inc.,
a
Nevada corporation (the “Company”).
RECITAL
In
order
to induce the Company to enter into and perform that certain Employment
Agreement dated as of even date herewith between the Company and Employee (the
“Employment
Agreement”
and
for
other good and valuable consideration, the receipt and sufficiency of which
are
hereby acknowledged, Employee hereby agrees as follows:
1. Non-Solicitation;
Non-Competition.
The
period from the Start Date through the Termination Date, as defined in Section
2
of the Employment Agreement, plus one year after the Termination Date is defined
for this Agreement as the “Non-Competition
Period”.
During
the Non-Competition Period, Employee shall not, without the Company’s prior
written consent, directly or indirectly, (a) call on any person or entity who,
at the time of such call, is a customer of the Company or any parent or
subsidiary of the Company, with respect to the purchase of any goods or services
which are, at the time, being offered by the Company or any parent or subsidiary
of the Company or which are under development by the Company or any parent
or
subsidiary of the Company at the time of Employee’s employment, (b) solicit or
induce or attempt to solicit or induce any customer of the Company or any parent
or subsidiary of the Company to reduce, or take any action which would reduce,
its business with the Company or any parent or subsidiary of the Company, (c)
solicit or attempt to solicit any employees of the Company or any parent or
subsidiary of the Company to leave the employ of the Company or any parent
or
subsidiary of the Company, or (d) hire any employees or former employees of
the
Company or any parent or subsidiary of the Company or cause any entity with
which Employee is affiliated or in which Employee owns an equity interest to
hire any such employees or former employees except as specifically defined
in
this agreement. As used herein, the term “former employee” means a person who
has been an employee of the Company or any parent or subsidiary of the Company
within the twelve-month period prior to the date of determination.
2. Notice
of Subsequent Employment. Employee. Employee
agrees that during the Non-Competition Period Employee will keep the Company
informed of the names and addresses of all persons, firms or corporations by
or
for whom he is employed from time to time, or for whom he acts as agent or
consultant or in whom he may own any one percent (1%) or more equity interest;
and Employee also agrees that if, during such time, he conducts any business
on
his own account or as a partner or co-venturer, he shall keep the Company
informed of that fact and of the nature, names and addresses of such business
as
conducted from time to time.
14
of 16
3. Breach.
Employee
agrees that a remedy at law for breach of the covenants contained herein would
be inadequate, that the Company would suffer irreparable harm as a result of
such breach and that in addition to any other rights and remedies of the Company
for such breach, the Company shall be entitled to apply to a court of competent
jurisdiction for temporary and permanent injunction or an order for specific
performance of such covenants, and, if the Company prevails, to recover from
Employee all costs of any such action brought by the Company, including without
limitation reasonable attorneys’ fees and expenses.
4. Enforcement.
It is
the desire and intent of Employee that the covenants of Employee contained
herein shall be enforced to the fullest extent permissible under the laws and
public policies of each jurisdiction in which enforcement is sought. If any
particular provision(s) of this Agreement shall be adjudicated to be invalid
or
unenforceable, such provision(s) shall be deemed amended to provide restrictions
to the fullest extent permissible, consistent with applicable law and policies,
and such amendment shall apply only with respect to the particular jurisdiction
in which such adjudication is made. If such deemed amendment is not allowed
by
the adjudicating body, the offending provision shall be deleted and the
remainder of this Agreement shall not be affected. This Agreement shall be
in
addition to and not in lieu of any other noncompetition or similar covenants
of
Employee entered into prior to or after the date hereof (unless otherwise
provided in a written agreement signed by the Company).
| 5. |
Miscellaneous.
|
5.1 Waiver.
The
waiver of the breach of any provision of this Agreement shall not operate or
be
construed as a waiver of any subsequent breach of the same or other provision
hereof.
5.2 Modification;
Amendment. Any
modification or amendment to this Agreement must be in writing and signed by
the
Company and Employee.
5.3 Notices.
All
notices and other communications under this Agreement shall be in writing and
shall be given as specified in Section 6.3 of the Employment
Agreement.
5.4 Headings.
The
Section headings herein are intended for reference and shall not by themselves
determine the construction or interpretation of this Agreement.
5.5 Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Texas.
5.6. Severability.
Should a
court or other body of competent jurisdiction determine that any provision
of
this Agreement is excessive in scope or otherwise invalid or unenforceable,
such
provision shall be adjusted rather than voided, if possible, and all other
provisions of this Agreement shall be deemed valid and enforceable to the extent
possible.
15
of 16
5.7. Benefits
of Agreement.
The
provisions of this Agreement shall be binding upon the executors,
administrators, heirs, successors and assigns of Employee, and shall inure
to
the benefit of the Company and its successors and assigns.
5.8 Remedies.
All
rights and remedies of the Company hereunder shall be cumulative and the
exercise of any right or remedy shall not preclude the exercise of
another.
5.9 Interpretation;
Review.
Employee
acknowledges that he has in fact reviewed and discussed this Agreement with
his
counsel and that he understands and voluntarily agrees to all of the terms
hereof.
IN
WITNESS WHEREOF,
the
undersigned Employee has executed this Agreement effective as of _December
1,
2004
___/s/
Xxxx Xxxxxxxx
Xxxxxx
Xxxx
Xxxxxxxx Xxxxxx
16
of 16
