EXECUTIVE EMPLOYMENT AGREEMENT
EXECUTIVE EMPLOYMENT AGREEMENT
This Employment Agreement (this "AGREEMENT") is made and entered into as of March 15, 2003 (the "EFFECTIVE DATE"), by HOME SOLUTIONS OF AMERICA, INC., a Delaware corporation (the "COMPANY"), and R. XXXXXX XXXXX, an individual resident of the State of Texas (the "EXECUTIVE").
WITNESSETH
WHEREAS, the Executive has certain skills, experience, and abilities that may be valuable to the success of the Company's operations and future profitability;
WHEREAS, the Company desires to employ and retain the services of the Executive as a full-time employee in the positions of Chief Executive Officer and Chief Financial Officer, and the Executive desires to work for and be employed by the Company in such positions; and
WHEREAS, the Company and the Executive desire to set forth the terms and conditions pursuant to which the Executive will be employed by the Company.
NOW, THEREFORE, in consideration of the foregoing premises and of the mutual covenants and undertakings contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties to this Agreement hereby agree as follows:
Article 1: EMPLOYMENT TERM AND DUTIES
1.01 Employment. The Company hereby employs the Executive, and the Executive hereby accepts employment by the Company, upon the terms and conditions set forth in this Agreement.
1.02 Term. Unless earlier terminated as herein provided, the Executive's employment with the Company pursuant to this Agreement shall commence on the Effective Date and shall end on the final day of the Term (as defined in this Section 1.02). For purposes of this Agreement, the "TERM" shall mean a period of time commencing on the Effective Date and continuing until the three-year anniversary of the Effective Date (the "EXPIRATION DATE"). The Term shall be extended solely upon the mutual agreement of the parties hereto.
1.03 Duties and Services. The Executive will be employed as the Chief Executive Officer and interim Chief Financial Officer of the Company in Houston, Texas, and will have such duties and perform such services as are customary of such position, or as otherwise requested by management officials senior in authority to the Executive. Subject to his suffering a Disability (as defined in Article 4 of this Agreement), the Executive will devote the majority of his business time, attention, skill, and energy exclusively to the business of the Company and will use his commercially reasonable best efforts to promote the success of the Company's business.
Article 2: COMPENSATION
2.01 Salary and Bonus. Subject to the provisions of Article 4 of this Agreement that relate to compensation of the Executive following the termination of the Employment Period (as defined in Article 8 of this Agreement), the Executive will be paid an annual base salary of $165,000 (such amount, as it may be increased from time to time, is hereinafter referred to as "SALARY") for the duration of the Term. The Company shall withhold from each installment of the Salary all applicable federal, state, and local income and/or other payroll taxes. In addition to the Salary, the Executive shall be eligible for an annual cash bonus (the "BONUS"), in an amount to be determined by the Company's Board of Directors; provided, however, that such Bonus shall not be less than $25,000 per year.
2.02 Benefits. For the duration of the Employment Period and as otherwise set forth herein, the Executive and his dependents (if applicable), will be permitted to participate in such pension, bonus, health insurance, disability income insurance, and other employee benefit plans of the Company (collectively, the "BENEFITS"), which may be in effect from time to time to the extent the Executive and his dependents are eligible for participation under the terms of such plans. In addition, the Company will reimburse any out of pocket health insurance expenses incurred by the Executive exceeding $1,000 per year.
2.03 Stock Options and Common Stock. The Executive shall be eligible to receive grants of stock options or restricted stock purchase rights pursuant to the Company's 1998 Stock Option Plan and 2001 Stock Plan, each as amended, or other equity incentive plan, in amounts (if any) and on terms and conditions to be determined by the Board of Directors of the Company (the "BOARD") or a committee thereof. The Board has granted the Executive stock options, under the Company's 1998 Stock Option Plan, to purchase 250,000 shares of common stock, $.001 par value per share (the "COMMON STOCK"), for a purchase price of $2.10 per share, as of the date hereof, by entering into a Stock Option Agreement with the Executive in the form attached hereto as Exhibit A.
2.04 Payment and Reimbursement of Expenses. The Company shall pay or reimburse the Executive for tuition and related expenses paid by the Executive in connection with Executive's enrollment in the Executive Masters of Business Administration program at the University of Texas in Austin, up to an aggregate amount of $9,000 per semester. The Company shall pay or reimburse the Executive for all reasonable travel and other expenses incurred by the Executive in performing his obligations under this Agreement in accordance with the policies and procedures of the Company for its senior executive officers, provided that the Executive properly accounts therefor in accordance with the regular policies of the Company.
2.05 Automobile Use or Allowance. The Company shall, at its option, either (i) provide the Executive with the use of a vehicle, or (ii) pay the Executive a car allowance of $1,500 per month. The Company shall also reimburse the Executive for all actual expenses associated with operating and maintaining the vehicle driven by the Executive. The Executive shall submit receipts or other evidence of such expenditures, and the Company shall pay these amounts to the Executive within 30 days of receipt of such documentation.
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Article 3: FACILITIES AND EXPENSES
The Executive will use the office space, equipment, supplies, and such other facilities, property, and personnel as are currently being provided by the Company for such purposes to perform his duties under this Agreement. The Company will reimburse the Executive for reasonable expenses incurred by the Executive in the performance of his duties in accordance with the Company's employment policies in effect from time to time; provided, however, that the Executive must file written expense reports with respect to such expenses, in accordance with the Company's employment policies, before the Executive may receive such reimbursement.
Article 4: TERMINATION
4.01 Termination of Employment Period.
(a) Death of the Executive. The Employment Period shall terminate immediately and automatically upon the death of the Executive.
(b) Termination by the Company. The Company may terminate the Employment Period immediately upon the delivery of a Notice of Termination (as defined in Section 4.01(d) of this Agreement) by the Company to the Executive.
(c) Termination by the Executive. The Executive may terminate the Employment Period immediately upon delivery of a Notice of Termination by the Executive to the Company (i) without Good Reason (as defined in Section 4.02 of this Agreement), or (ii) setting forth facts that indicate that an event constituting Good Reason has occurred, or the Executive has obtained actual knowledge of an event constituting Good Reason, within the 30 days immediately prior to the date of delivery of such Notice of Termination.
(d) Notice of Termination. For purposes of this Agreement, a "NOTICE OF TERMINATION" shall mean a written notice (delivered in accordance with Section 7.06 herein) that indicates the specific termination provision in this Agreement upon which the person intending to terminate the Employment Period is relying and sets forth in reasonable detail the facts and circumstances that provide a basis for termination of the Employment Period under such termination provision.
4.02 Definition of "Good Reason." For the purposes of this Agreement, the phrase "GOOD REASON" means (i) the Company's material breach of this Agreement and the Company's failure to remedy such breach within 10 days following the delivery of written notice of such breach by the Executive to the Company; or (ii) the assignment by the Company to the Executive, without the prior written consent of the Executive, of responsibilities or duties that are substantially different from the duties and services set forth in Section 1.03 of this Agreement.
4.03 Effect of Termination of Employment Period; Post-Termination Benefits. Upon the termination of the Employment Period in accordance with Section 4.01 of this Agreement, the Executive's obligation to render to the Company the services described in Section 1.03 of this Agreement shall cease (although the Term shall not terminate), and the Company shall pay the Executive or, in the event of his death while amounts remain payable hereunder, his Designated Beneficiary (defined below), as follows:
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(a) Termination by the Executive without Good Reason. If the Employment Period is terminated by the Executive in accordance with Section 4.01(c)(i) of this Agreement, the Executive will be entitled to receive solely that portion of his Salary, payable in accordance with the Company's normal payroll practices, accrued by the Executive as of the date of the termination of the Employment Period; provided, however, that the Executive shall not receive, and shall not be entitled to receive, any Salary, Bonus, or Benefits (except for Salary and Benefits accrued prior to the date of the termination of the Employment Period) during the remainder of the Term following such termination, or thereafter, except as otherwise required in accordance with federal or state law or the terms of the plans governing the benefits provided hereunder.
(b) Termination by the Company for any reason, by the Executive with Good Reason, or upon the Executive's death or disability. If the Employment Period is terminated by the Executive in accordance with 4.01(c)(ii) of this Agreement, or upon the Executive's death or disability, or by the Company by any reason whatsoever (any such type of termination shall be referred to herein as an "Applicable Termination"), the Company shall pay the Executive (or the Designated Beneficiary of the Executive) a lump sum equal to the number of months remaining under the Term, multiplied by the monthly portion of the Salary then in effect on the date the Employment Period is terminated. In addition, notwithstanding any vesting provisions included in the individual stock option agreements, upon an Applicable Termination the stock options granted to the Executive under stock option agreements dated February 1, 2002 (for 150,000 shares), April 30, 2002 (for 20,000 shares), and the date hereof (for 250,000 shares) shall become fully vested and immediately exercisable by the Executive. In addition, the Company will continue to provide health insurance to the Executive and his family during the remaining months of the Employment Period.
(d) Accrued Benefits. Unless otherwise required by this Agreement, federal or state law, or the terms of the relevant plans providing Benefits hereunder, the Executive's accrual of the Benefits pursuant to Section 2.02 hereof will cease on the date of the termination of the Employment Period, and the Executive will thereafter be entitled to accrued Benefits pursuant to such plans only as provided in such plans.
(e) Payment and Reimbursement of Expenses. The payment and reimbursement of expenses pursuant to Section 2.04 hereof will cease on the date of the termination of the Employment Period, other than applicable expenses that are incurred prior to the date of the termination of the Employment Period and submitted to the Company for reimbursement within 30 days of the termination of the Employment Period.
For purposes of this Agreement, the Executive's "DESIGNATED BENEFICIARY" means such individual beneficiary or trust, located at such address as the Executive may designate by written notice to the Company from time to time or, if the Executive fails to give written notice to the Company of such a beneficiary, the Executive's estate; provided, however, that, notwithstanding the preceding sentence, the Company shall have no duty under any circumstances to attempt to open an estate on behalf of the Executive, to determine whether any beneficiary designated by the Executive is alive, to determine the existence of any trust, to determine whether any person or entity purporting to act as the Executive's personal representative (or the trustee of a trust established by the Executive) is duly authorized to act in that capacity, or to locate or attempt to locate any beneficiary, personal representative, or trustee.
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Article 5: NON-DISCLOSURE
COVENANT
5.01
Confidential Information Defined. For the purposes of this Article 5, the
phrase "CONFIDENTIAL INFORMATION" means any and all of the following: trade
secrets concerning the business and affairs of the Company or its Affiliates,
product specifications, data, know-how, formulae, compositions, processes,
designs, sketches, photographs, graphs, drawings, samples, inventions and
ideas, past, current, and planned research and development, current and planned
distribution methods and processes, customer lists, current and anticipated
customer requirements, price lists, market studies, business plans, computer
software and programs (including object code, machine code, and source code),
computer software and database technologies, systems, structures, and
architecture (and related formulae, compositions, processes, improvements,
devices, know-how, inventions, discoveries, concepts, ideas, designs, and
methods); information concerning the business and affairs of the Company or its
Affiliates (which includes historical financial statements, financial
projections and budgets, historical and projected sales, capital spending
budgets and plans, the names and backgrounds of key personnel, personnel
training techniques and materials, however documented); and notes, analysis,
compilations, studies, summaries, and other material prepared by or for the
Company or its Affiliates containing or based, in whole or in part, on any
information included in the foregoing. Notwithstanding the foregoing,
Confidential Information shall not include any information that the Executive
demonstrates was or became generally available to the public other than as a
result of a disclosure of such information by the Executive or any other person
under a duty to keep such information confidential.
5.02 Acknowledgment by the Executive. The Executive acknowledges that (a) during the Employment Period and as part of his employment, the Executive will be afforded access to Confidential Information that the Company has devoted substantial time, effort, and resources to develop and compile; (b) public disclosure of such Confidential Information would have an adverse effect on the Company and its business; (c) the Company would not disclose such information to the Executive, nor employ or continue to employ the Executive without the agreements and covenants set forth in this Article 5; and (d) the provisions of this Article 5 are reasonable and necessary to prevent the improper use or disclosure of Confidential Information and to enable the Company to acquire sole and exclusive ownership of the Employee Inventions.
5.03 Maintaining Confidential Information. In consideration of the compensation and benefits to be paid or provided to the Executive by the Company under this Agreement and the acknowledgments set forth above, the Executive, during the Employment Period, the Term, and at all times thereafter and for a period of (i) two years, or (ii) until such time as the information as listed in section 5.01 is no longer found to be confidential information pursuant to Texas common law, whichever is shorter, agrees and covenants as follows:
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(a) Company Information. The Executive will hold in strictest confidence the Confidential Information and will not disclose it to any Person (defined below) except with the specific prior written consent of the Company or as may be required by court order, law, government agencies with which the Company deals in the ordinary course of its business, or except as otherwise expressly permitted by the terms of this Agreement. Any trade secrets of the Company will be entitled to all of the protections and benefits afforded under applicable laws. If any information that the Company deems to be a trade secret is ruled by a court of competent jurisdiction not to be a trade secret, such information will, nevertheless, be considered Confidential Information for purposes of this Agreement. The Executive hereby waives any requirement that the Company submit proof of the economic value of any trade secret or post a bond or other security. The Executive will not remove from the Company's premises or record (regardless of the media) any Confidential Information of the Company or its Affiliates, except to the extent such removal or recording is necessary for the performance of the Executive's duties. The Executive acknowledges and agrees that all Confidential Information, and physical embodiments thereof, whether or not developed by the Executive, are the exclusive property of the Company or its Affiliates, as the case may be.
(b) Third-Party Information. The Executive recognizes that the Company and its Affiliates have received and in the future will receive from third parties their confidential or proprietary information subject to a duty on their parts to maintain the confidentiality of such information and to use it only for certain limited purposes. The Executive agrees that he owes the Company, its Affiliates, and such third parties, during the period stated in section 5.03, a duty to hold all such confidential or proprietary information in the strictest confidence and not to disclose it to any Person (except as necessary in carrying out his duties for the Company consistent with the Company's agreement with such third party) or to use it for the benefit of anyone other than for the Company or such third party (consistent with the Company's agreement with such third party) without the express written authorization of the Company or its Affiliate, as the case may be.
(c) Returning Company Documents. The Executive agrees that, at the time of the termination of the Employment Period, he will deliver to the Company, on written request of the Company, any and all devices, records, data, notes, reports, proposals, lists, correspondence, specifications, drawings, blueprints, sketches, materials, equipment, other documents or property, or reproductions of any of the aforementioned items belonging to the Company or any of its Affiliates, and their respective successors or assigns, regardless of whether such items are represented in tangible, electronic, digital, magnetic or any other media.
5.04 Disputes or Controversies. The Executive recognizes that should a dispute or controversy arising from or relating to this Agreement be submitted for adjudication to any court or other third party, the preservation of the secrecy of Confidential Information may be jeopardized. All pleadings, documents, testimony, and records relating to any such adjudication will be maintained in secrecy and will be available for inspection by the Company, the Executive, and their respective attorneys and experts, who will agree, in advance and in writing, to receive and maintain all such information in secrecy, except as may be limited by them in writing.
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Article 6: NON-COMPETITION AND
NON-INTERFERENCE
6.01
Covenants Regarding Competitive Protection. The Company and the Executive
hereby mutually agree that the nature of the Company's business and the
Executive's employment hereunder are based on the Company's goodwill, public
perception, and customer relations. Therefore, in consideration of the
acknowledgments set forth in Section 5.02 herein and the compensation and
benefits to be paid to the Executive pursuant to this Agreement, the Executive
hereby agrees and covenants to each and all of the following:
(a)
Noncompete. During the Restricted Period, the Executive will not, directly or
indirectly, in any capacity whatsoever, individually or on behalf of any other
person or entity, engage or invest in (with the exception of investing in a
publicly traded company, not to exceed a 5% interest in such company), own,
manage, operate, finance, control, or participate in the ownership, management,
operation, financing, or control of, be employed by, associated with, or in any
manner connected with, lend the Executive's name or any similar name to, lend
the Executive's credit to or render services or advice to, any business engaged
or about to become engaged in the Business of the Company, or any of its
Affiliates, in the Market Area. For purposes of this Agreement, the "BUSINESS"
of the Company, or its Affiliates, includes all those businesses, products, and
services that are presently or hereafter marketed by the Company, or its
Affiliates during the Term, including the acquisition of communication towers,
or that are known by the Executive to be in the development stage at any time
during the Term; and any other business in which the Company, or any of its
Affiliates, are engaged in at any time during the Term.
(b) Solicitation of Customers. During the Restricted Period, the Executive hereby covenants and agrees that he will not, either directly or through an Affiliate, solicit any Person that is a Current Customer (defined below) of the Company or its Affiliates for purposes of selling products or services to such Person that are in competition with the products and services offered or sold by the Company or its Affiliates.
(c) Solicitation of Employees. During the Restricted Period, the Executive hereby agrees not to employ, either directly or through an Affiliate, any current employee of the Company or its Affiliates or any individual who was an employee of the Company or its Affiliates at any time during the Term, and agrees not to solicit, or contact in any manner that could reasonably be construed as a solicitation, either directly or through an Affiliate, any employee of the Company or its Affiliates for the purpose of encouraging such employee to leave or terminate his or her employment with the Company or its Affiliates; provided, however, that the Executive is not prohibited under this Section 6.01(c) from conducting any advertisement or general solicitation (or hiring as a result thereof) that is not specifically targeted at any current employee of the Company or its Affiliates or any individual who was an employee of the Company or its Affiliates at any time during the Term nor is the Executive prohibited under this Section 6.01(c) from the solicitation or hiring of any current employee of the Company or its Affiliates or any individual who was an employee of the Company or its Affiliates at any time during the Term who initiates employment discussions, directly or indirectly, with the Executive.
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(d) Solicitation of Vendors. During
the Restricted Period, the Executive hereby agrees not to solicit, either
directly or through an Affiliate, a current vendor or supplier of the Company
or its Affiliates for purposes of encouraging such vendor or supplier to cease
or diminish providing products or services to the Company or its Affiliates, or
to change adversely the terms under which such vendor or supplier provides such
products or services to the Company or its Affiliates.
(e) Interference. During the Restricted Period, the Executive hereby agrees not to interfere with the Company's relationship with any person who at the relevant time is an employee, contractor, supplier, or customer of the Company or its Affiliates.
(f) Restricted Period. For purposes of this Section 6.01, the term "RESTRICTED PERIOD" means the duration of the Term and 365 days following the date of termination of this Agreement by either party for any reason.
(g) Market Area. For purposes of this Section 6.01, the term "MARKET AREA" means any state or province in which the Company or its Affiliates have provided goods or services or otherwise operated within the twelve months prior to the last day of the Term.
6.02 Scope. The Executive acknowledges and agrees that the geographic area, length and scope of the restrictions contained in Section 6.01 are reasonable and necessary to protect the legitimate business interests of the Company. The duration of the agreements contained in Section 6.01 shall be extended for the amount of any time of any violation thereof and the time, if greater, necessary to enforce such provisions or obtain any relief or damages for such violation through the court system. The Company may, at any time on written notice approved by its Board, reduce the geographic area, length or scope of any restrictions contained in Section 6.01 and, thereafter, the Executive shall comply with the restriction as so reduced, subject to subsequent reductions. If any covenant in Section 6.01 of this Agreement is held to be unreasonable, arbitrary, or against public policy, such covenant will be considered to be divisible with respect to scope, time, and geographic area, and such lesser scope, time, or geographic area, or all of them, as an arbitrator or a court of competent jurisdiction may determine to be reasonable, not arbitrary, and not against public policy, will be effective, binding, and enforceable against the Executive. In the event of termination of the Executive's employment with the Company for any reason, the Executive consents to the Company communicating with the Executive's new employer, any entity in the Business or through or in connection with which the Executive is restricted hereunder, or any other party about the restrictions and obligations imposed on the Executive under this Agreement.
Article 7: GENERAL PROVISIONS
7.01 Injunctive Relief and Additional Remedy. The Executive acknowledges that the injury that would be suffered by the Company as a result of a breach of the provisions of Articles 5 and 6 hereof might be irreparable and that an award of monetary damages to the Company for such a breach would be an inadequate remedy. Consequently, the Company will have the right, in addition to any other rights it may have, to obtain injunctive relief to restrain any breach or threatened breach or otherwise to specifically enforce the provisions of Articles 5 and 6 hereof.
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7.02 Covenants of Articles 5 and 6 are Essential and Independent Covenants. The covenants by the Executive in Articles 5 and 6 are essential elements of this Agreement, and without the Executive's agreement to comply with such covenants, the Company would not have entered into this Agreement or employed or continued the employment of the Executive. The Company and the Executive have independently consulted their respective counsel and have been advised in all respects concerning the reasonableness and propriety of such covenants, with specific regard to the nature of the business conducted by the Company. If the Executive's employment hereunder expires or is terminated, this Agreement will continue in full force and effect as is necessary or appropriate to enforce the covenants and agreements of the Executive in Articles 5 and 6.
7.03 Representations and Warranties by the Executive. The Executive represents and warrants to the Company that (a) the Executive has never taken any action of the types set forth in Section 4.03(b) though (f) and (b) the execution and delivery by the Executive of this Agreement does not, and the performance by the Executive of the Executive's obligations hereunder will not, with or without the giving of notice or the passage of time, or both: (i) violate any judgment, writ, injunction, or order of any court, arbitrator, or governmental agency applicable to the Executive; or (ii) conflict with, result in the breach of any provisions of or the termination of, or constitute a default under, any agreement to which the Executive is a party or by which the Executive is or may be bound.
7.04 Obligations Contingent on Performance. The obligations of the Company hereunder, including its obligation to pay the compensation provided for herein, are contingent upon the Executive's performance of the Executive's obligations hereunder.
7.05 Binding Effect; Delegation of Duties Prohibited. This Agreement shall inure to the benefit of, and shall be binding upon, the parties hereto and their respective successors, assigns, heirs, and legal representatives, including any entity with which the Company may merge or consolidate or to which all or substantially all of its assets may be transferred. The covenants of the Executive under this Agreement, being personal, may not be delegated.
7.06 Notices. All notices, consents, waivers, and other communications under this Agreement must be in writing and will be deemed to have been duly given when (a) delivered by hand (with written confirmation of receipt), (b) sent by facsimile (with written confirmation of receipt), provided that a copy is mailed by registered mail, return receipt requested, or (c) when received by the addressee, if sent by a nationally recognized overnight delivery service (receipt requested) or, (d) mailed by registered or certified mail, postage prepaid and return receipt requested, in each case to the appropriate addresses and facsimile numbers set forth below (or to such other addresses and facsimile numbers as a party may designate by notice to the other parties):
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| If to the Company: | Home Solutions of America, Inc. | |
| Attn: Board of Directors | ||
| 00000 Xxxxx Xxxx | ||
| Xxxxxxx, Xxxxx 00000 | ||
| Facsimile: (000) 000-0000 | ||
| With a copy to: | J. Xxxx Xxxxx, Esq. | |
| 0000 Xxxxx Xxxxxx, Xxxxx 000 | ||
| Xxxxxx, Xxxxx 00000 | ||
| Facsimile: (000) 000-0000 | ||
| If to the Executive: | R. Xxxxxx Xxxxx | |
| 00000 Xxxxx Xx | ||
| Xxxxxxx, XX 00000 | ||
| Facsimile: (___)___- | ||
| With a copy to: | Xxxxx Xxxxxxx | |
| Crady, Jewett, & XxXxxxxx L.L.P. | ||
| 0000 Xxxxx Xxxx, Xxx 0000 | ||
| Xxxxxxx, XX 00000 | ||
| Facsimile: (000) 000-0000 |
7.07
Entire Agreement; Amendments. This Agreement contains the entire agreement
between the parties with respect to the subject matter hereof and supersedes
all prior agreements and understandings, oral or written, between the parties
hereto with respect to the subject matter hereof. This Agreement may not be
amended orally; but only by an agreement in writing signed by the parties
hereto. This Agreement supersedes and
replaces in its entirety that certain Executive Employment Agreement between
the Company and the Executive dated March 1, 2002.
7.08 GOVERNING LAW; VENUE. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS RULES OR CHOICE OF LAWS RULES THEREOF. VENUE FOR ANY ACTION BROUGHT HEREUNDER SHALL BE PROPER EXCLUSIVELY IN XXXXXX COUNTY, TEXAS.
7.09 Headings; Construction. The headings in this Agreement are provided for convenience only and will not affect its construction or interpretation. All references to "Article," "Articles," "Section," or "Sections" refer to the corresponding Article, Articles, Section, or Sections of this Agreement unless otherwise specified. All words used in this Agreement will be construed to be of such gender or number as the circumstances require.
7.10 Severability. If any provision of this Agreement is held invalid or unenforceable by an arbitrator or any court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.
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7.11
Counterparts. This Agreement may be executed in one or more counterparts,
including by facsimile signature, each of which will be deemed to be an
original copy of this Agreement and all of which, when taken together, will be
deemed to constitute one and the same agreement.
7.12
Survival of Obligations. The obligations of the Company and the Executive under
this Agreement which by their nature may require either partial or total
performance after the expiration of the Term shall survive such expiration.
7.13
Withholding. All payments and benefits made or provided under this Agreement
shall be subject to withholding as required under applicable law.
Article 8: CERTAIN DEFINITIONS
For purposes of this Agreement, the following terms shall have the meanings indicated below:
"AFFILIATE" shall mean, as to any Person, any Person controlled by, controlling, or under common control with such Person, and, in the case of a Person who is an individual, a member of the family of such individual consisting of a spouse, sibling, in-law, lineal descendant, or ancestor (including by adoption), and the spouses of any such individuals. For purposes of this definition, "control" (including the terms "controlling", "controlled by" and "under common control with") of a Person means the possession, directly or indirectly, alone or in concert with others, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of securities, by contract or otherwise, and no Person shall be deemed in control of another solely by virtue of being a director, officer or holder of voting securities of any entity. A Person shall be presumed to control any partnership of which such Person is a general partner.
"CURRENT CUSTOMER" shall mean any Person who is currently utilizing any product or service sold or provided by the Company through the facility managed by the Executive; any Person who utilized any such product or service within the previous 12 months; and any Person with whom the Company or any of its Affiliates is currently conducting negotiations concerning the utilization of such products or services.
"EMPLOYMENT PERIOD" shall mean the period during which the Executive has an obligation to render to the Company all or any portion of the services described in Section 1.03 of this Agreement. The Employment Period shall in no event, however, extend past the Expiration Date.
"PERSON" shall have the meaning given in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended, as modified and used in Sections 13(d)(3) and 14(d)(2) of such act.
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IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the date first written above.
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COMPANY: HOME SOLUTIONS OF AMERICA, INC. By: |
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| Title: | |
EXECUTIVE:
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| R. Xxxxxx Xxxxx |
EXHIBIT A
FORM OF STOCK OPTION AGREEMENT
