EXHIBIT 10.7
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EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made effective as of December
11, 1995, by and between Diversified Specialists, Inc., a Texas corporation
("Employer"), and Xxxxxx X. Xxxxxxx, an individual ("Employee").
RECITALS
Effective as of December 11, 1995, a new owner purchased a majority of the
stock of Employer; and
Employee has been an employee of Employer for the past six (6) years; and
As a condition of the continued employment of the Employee by the Employer,
the new owner is requiring that Employee enter into a formal written
employment agreement.
ARTICLE I. EMPLOYMENT AND DUTIES
1.01 Employment. Employer hereby employs Employee, and Employee hereby
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accepts employment with Employer, on and subject to the terms and conditions of
this Agreement.
1.02 Term of Employment. Unless earlier terminated pursuant to Section
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3.01, the employment of Employee hereunder shall begin on the effective date
hereof and shall continue for a period of one (1) year (the "Employment Term").
The Employment Term shall automatically be renewed on each anniversary of the
effective date hereof for successive one year terms unless terminated in
accordance with Article III hereof.
1.03 Duties. During the Employment Term, Employee shall serve as
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Administrative Vice President and General Counsel of Employer and shall provide
services to Employer exclusively and on a full time basis. Employee shall
perform such duties in such manner and at such times, and Employee shall have
such responsibilities, as are designated from time to time by Employer.
ARTICLE II. COMPENSATION AND BENEFITS
2.01 Salary. During the Employment Term, Employer shall pay to Employee a
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salary of $70,000.00 annually, payable semi-monthly in accordance with
Employer's regular payroll policies. Employer in its sole discretion may adjust
such compensation (but never below the amount described in the immediately
preceding sentence) or pay bonuses to Employee from time to time similar with
the historical practices of Employers but subject to the profitability of
Employer.
2.02 Benefits. Employer shall provide Employee with the 1993 Chevrolet
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Suburban he is presently driving as a company car and with vacation, sick leave
and other benefits as agreed upon by Employer and Employee from time to time.
ARTICLE III. TERMINATION
3.01 Termination. The Employment Term shall terminate upon:
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(a) the death of Employee;
(b) the breach of any provision of this Agreement by Employee;
(c) conduct by Employee constituting willful misconduct, dishonesty,
fraud or gross neglect of his duties;
(d) conviction of Employee as a felon or of any crime involving theft
or destruction of property;
(e) physical or mental disability of Employee for more than ninety
(90) days in any 365-day period, and for this purpose,
"disability" means a sickness, accident or injury occurring to
Employee that results in Employee being unable to materially
perform those services Employee customarily performed as an
employee of Employer (prior to such sickness, accident or injury);
a disability of Employee shall be deemed to have occurred on the
last day of such one hundred ninety (90)-day period; or
(f) upon thirty (30) days written notice by either Employer or
Employee without cause; provided, however, if this Agreement is
terminated during the initial twelve month term hereof by
Employer, Employee shall be paid a severance payment equal to six
(6) months salary payable hereunder plus the monthly salary for
any months remaining on the initial twelve (12) month term.
ARTICLE IV. CONFIDENTIALITY
4.01 Definitions.
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(a) The term "Confidential Information" as used in this Article IV
shall mean all information relating directly or indirectly to
Employer or Employer's business that is not generally known by the
general public, including, without limitation, all information
regarding Employer's facilities, processes, operating procedures,
financial data, purchasing practices, marketing, management
procedures, books and records, employee or personnel data, and all
contractual arrangements or proposals, properties and affairs of
the Employer, as well as its business plans and budgets.
(b) The term "Person" as used in this Agreement shall mean any
individual, corporation, partnership, firm, joint venture,
syndicate, association, trust,
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government, governmental agency, limited liability company, or
other form of entity or organization.
4.02 Confidential Information. Employee acknowledges that in the course of
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performing his responsibilities to Employer pursuant to this Agreement, Employee
will have knowledge of, will have access to, and will be entrusted with,
Confidential Information and will be responsible for maintaining and enhancing
the goodwill of Employer.
4.03 Confidentiality. Except to the extent it is absolutely required in
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the performance of Employee's duties to Employer, or with the prior written
approval of Employer, or as required by law, Employee will not, during the
Employment Term or thereafter, directly or indirectly, for any reason
whatsoever, with or without cause, breach the confidence reposed in Employee by
Employer by using, disseminating, or disclosing or permitting to be disclosed,
in any manner to any Person any Confidential Information, nor will Employee use
any Confidential Information in competing with Employer or for any purpose other
than for the benefit of Employer.
4.04 Ownership of Confidential Information. All Confidential Information
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obtained by, developed, invented or otherwise learned or acquired by Employee,
during the Employment Term is and shall be the sole and exclusive property of
Employer and shall remain the property of Employer upon the termination of the
Employment Term. Upon termination of the Employment Term, Employee shall
immediately deliver to Employer all documents, records, notebooks, computer
printouts, tapes and similar repositories of Confidential Information, together
with all copies thereof.
4.05 Copyrights. All work prepared or contributed to by Employee pursuant
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to this Agreement which is capable of being copyrighted shall be considered
"work for hire" as defined in Public Law 94-533, the Copyright Revision Act of
1976, granting Employer full ownership of that work and the components and all
rights comprised therein. Employee will sign all applications for registration
of all such copyrights. Employee shall promptly disclose in writing to Employer
any and all works of authorship which are within the subject matter of
copyright, which are conceived, originated, developed, made, or acquired by
Employee, either individually or jointly with others, during the Employment Term
and: (i) for which Employer provided equipment, supplies, facilities, or
confidential information, (ii) which was made or conceived on or partially on
Employer's time, or (iii) which relates to Employer's then current business or
business that Employer intends to develop (collectively "Discoveries").
Employee hereby assigns to Employer all his right, title and interest in and to
the Discoveries and, both during the Employment Term and thereafter, shall
assist Employer in the establishment, maintenance, extension, protection, and
enforcement of Employer's rights in the Discoveries.
4.06 Remedies. Employee agrees that the remedy at law for any breach by
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him of any of the provisions of this Article IV will be inadequate and that, in
addition to any other remedies which Employer may have, Employer shall be
entitled to temporary and permanent injunctive
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relief, without necessity of proving actual damage, and a restraining order
restricting any further or continued breach.
ARTICLE V. MISCELLANEOUS
5.01 Assignment. Neither Employer nor Employee may assign its or his
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rights under this Agreement to any Person or entity at any time.
5.02 Notices. All notices and communications required or permitted
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hereunder shall be in writing, shall be delivered by telecopier, telegram,
receipted courier service or mailed by certified or registered mail service with
postage prepaid and shall be deemed to have been duly given when received at the
following addresses:
If to Employer: Diversified Services, Inc.
0000 Xxxx Xxx Xxxxxxx Xxxxxxx
Xxxxxxx, Xxxxx 00000
If to Employee: Xxxxxx X. Xxxxxxx
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxx 00000
or to such other address as the parties may designate by written notice.
5.03 Governing Law. The validity, interpretation and enforceability of
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this Agreement shall be determined in accordance with the laws of the United
States of America and the State of Texas.
5.04 Counterparts. This Agreement may be executed in two or more
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counterparts or originals, each of which counterparts shall be deemed an
original, but all of which counterparts or originals together shall constitute
one and the same instrument.
5.05 Binding Effect. All of the terms and provisions of this Agreement
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shall be binding upon and inure to the benefit of the parties hereto and their
heirs, personal representatives, permitted successors and permitted assigns.
5.06 Amendment. This Agreement may not be altered, amended or modified
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except by a written instrument executed by the parties hereto.
5.07 Severability If any one or more of the provisions hereof shall for
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any reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provision
hereof, and this Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein. Furthermore, in lieu of
such illegal, invalid or unenforceable provision, there shall be added
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automatically as a part of this Agreement a provision as similar in terms to
such illegal, invalid or unenforceable provision as may be possible and be
legal, valid and enforceable.
5.08 Attorney's Fees. In the event of any litigation arising out of this
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Agreement, the unsuccessful party, in addition to all other sums that either
party may be called upon to pay, shall be required to pay a reasonable sum for
the prevailing party's attorneys' fees and cost of litigation.
5.09 Prior Agreements Superseded. This Agreement constitutes the sole and
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only agreement of the parties hereto and supersedes any prior understandings of
written or oral agreements between the parties with respect to the subject
matter hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement effective as
of the day and year first written above.
EMPLOYER:
DIVERSIFIED SPECIALISTS, INC.
By: /s/ M.D. XXXXX
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EMPLOYEE:
/s/ XXXXXX X. XXXXXXX
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XXXXXX X. XXXXXXX
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