EXHIBIT 10.51
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is entered into as of this 9th
day of November, 2004, between OneSource Technologies, Inc., a Delaware
corporation (the "Company") and Xxxxx X. Xxxxxxxx (the "Employee"). The term
"Parties" shall refer collectively to both of these entities.
Recitals.
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Although designated Recitals, the following constitute covenants and
warranties and are a part of this Agreement.
A. Company is currently engaged in two closely related and complimentary
lines of technology industry services and products: (1) equipment sales
integration and maintenance support services; and (2) providing high quality
compatible imaging supply products. As used herein, however, the term "Line of
Business" shall mean the business described in this Paragraph and shall also
mean any other activity or business enterprise in which the Company or any
subsidiary engages, whether or not related to the foregoing, at any time during
the Term hereof.
B. Employee is employee of the Company on the terms and conditions stated
herein.
C. The Company and Employee desire to and hereby do terminate any previous
employment agreement and understandings between them and/or the Employee and
First Financial Computer Services, Inc., whether formal or informal, written or
oral, and desire and hereby agree instead to be governed by the terms and
conditions of this Agreement.
Agreement.
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NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, and in reliance upon the representations, warranties, and
recitals set forth in this Agreement, and in consideration for and pursuant to
Section 5.4 of the Revised Merger Agreement dated November 9, 2004 by and among
the Company, First Financial Computer Services, Inc., the Employee, Xxxx X.
Xxxxxxxx, Xxx X. Xxxxxxxx and Xxxxx X. Xxxxxxxx (the "Merger Agreement"), the
Parties agree as follows:
1. Employment. Employee was previously employed by First Financial Computer
Services, Inc., which has recently been merged into the Company. Pursuant to the
terms of the Merger Agreement, the Company hereby continues to employ Employee
and Employee accepts such continued employment from the Company upon the terms
and conditions set forth below.
2. Services and Duties. Subject to the remaining provisions of this Paragraph 2,
Employee's initial position with Company shall be that of President and his
duties shall be commensurate with such title.
2.1. During the Term of this Agreement, Employee shall devote his full time
and efforts to the promotion and development of the Line of Business and to the
fulfillment of his duties as an employee of the Company; and shall faithfully,
completely and accurately carry out and perform
such policies and instructions as may be established by the Company, its Board
of Directors, or any person to whom the Board of Directors has delegated the
responsibility for overseeing and supervising the activities of Employee.
2.2. The place of Employee's performance shall be Scottsdale, Arizona and
Little Rock, Arkansas.
2.3. During his employment by Company, Employee shall not engage in any
other business activity, whether or not such business activity is engaged in for
gain, profit or other pecuniary advantage (except that Employee may invest his
own assets in a manner that will not interfere with his/her duties and
responsibilities hereunder); and Employee shall not engage in activities
conflicting with, in competition with, or detrimental to, the interests of
Company. Before working on, planning, organizing, or engaging in any consulting,
employment or other business activity outside Employee's ongoing employment by
the Company, Employee shall consult with the Company to ensure that no conflict,
competition or detriment will result.
3. Compensation. For all services to be rendered by Employee under this
Agreement, the Company shall pay or cause to be paid or delivered to Employee
the following compensation (and no other compensation, benefits or remuneration
of any kind, except as required by law or agreed to by the parties in other
agreements) during the Term of this Agreement:
3.1. Salary. Employee shall be salaried at the base rate of $157,000 per
year (the "Base Salary"), payable bi-weekly. Employee recognizes that he is
exempt from the payment of overtime under the federal Fair Labor Standards Act,
and is therefore not entitled to any payments for overtime pay. Employee's base
salary may be increased by merit raises or cost of living increases as
determined by the Company in its sole discretion.
3.2. Bonus. Employee shall be evaluated after closing of the Merger
Agreement in conjunction with all employees of the Company and any bonus or
other incentives to be paid to Employee shall be determined at that time in the
Company's sole discretion and in the same manner and on the same terms and
conditions as any other employee of the Company from time to time in a similar
position.
3.3. Tax Withholding. All amounts of salary, bonuses, commissions, and
other compensation payable to Employee hereunder shall be reduced by any amounts
that the Company is required to withhold with respect to such payments under the
then applicable provision of any state, federal or local income or other tax
laws, the so-called "FICA" laws, regulations or statutes of a like nature or any
and all other state, federal or local laws of any kind or nature.
4. Benefits. The Company will provide Employee with the opportunity to
participate, on the same terms and conditions available to other employees of
the Company, in any life, health, dental, and disability insurance plans and any
retirement plans established for the benefit of employees or otherwise made
available to other employees of the Company, which plans may, in the sole
discretion of the Company, be changed at any time. Employee shall be entitled to
vacation and sick pay consistent with Company policy applicable to other
employees of Company.
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The life, health, dental, and disability insurance and retirement plans and the
vacation and sick pay policy referenced in this Section 4 may be changed at any
time in the sole discretion of the Company. Notwithstanding, and in addition to
the foregoing, the Company shall at a minimum provide: (1) So long as the
current policy held by First Financial Computer Services, Inc. ("FFCS") is
assignable to the Company, the Company will continue to provide employee with
the $1,000,000 life insurance policy currently held by FFCS and payable to the
Employee's beneficiaries; (2) car at $1 buyout; (3) Service credit since 1986;
(4) four weeks paid vacation per year.
5. Term of Agreement and Expiration.
5.1. Initial Term. This Agreement shall be effective for a period of three
years, beginning on November 9, 2004 and continuing to the close of business on
November 9, 2007 (the "Initial Term"), unless otherwise terminated as provided
herein.
5.2. Renewal Term. This Agreement shall thereafter be automatically renewed
for successive one (1) year periods (each called a "Renewal Term").
5.3. Definition of "Term." For purposes of this Agreement, the word "Term"
shall mean the actual time during which this Agreement is effective until it is
terminated, including (unless earlier terminated) the Initial Term plus any
Renewal Term(s).
5.4. Expiration at End of Initial or Renewal Term. Either party may cause
the expiration of the Agreement at the end of the Initial Term or any Renewal
Term by giving notice of expiration in writing, at least 30 days prior to
expiration of the Initial Term or any Renewal Term.
5.5. Obligations Upon Expiration. If either Party causes the expiration of
this Agreement at the scheduled end of the Initial or any Renewal Term as
provided in this Paragraph, the Company shall have no further obligation to pay
any compensation of any nature whatsoever to the Employee.
6. Termination.
6.1. This Agreement (except those provisions that survive the termination
hereof) shall terminate upon the first to occur of the following, regardless
when it occurs, provided, however, in no event will this Agreement be terminated
by the Company before the OneSource Promissory Note is paid in full:
6.1.1. Death or Disability of Employee. Upon either the death or
disability of Employee, this Agreement shall terminate immediately without
notice, effective as of the date of such death or disability, and the Company
shall have no liability for any amounts other than any Base Salary through the
end of the Initial Term or any additional amounts already earned by and not yet
paid to Employee on the date of death or disability. In the event of the
disability of Employee, the Company shall continue to maintain any insurance
described in Section 4 during the remainder of the Initial Term. For the
purposes of this Paragraph 6.1.1, "date of disability" shall mean the date upon
which the Employee begins to receive disability payment under the disability
insurance described in Section 4.
6.1.2. Termination Without Cause. Either party may terminate this
Agreement at will, without cause, by giving at least 30 days' written notice of
such termination.
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6.1.3. Termination By Employee for Cause. Employee may terminate this
Agreement for "Employee Cause," by giving at least 10 days' written notice of
such termination. When used herein, the term "Employee Cause" shall mean that
the Company has (a) materially breached its obligations hereunder, under the
Merger Agreement or the OneSource Promissory Note, (b) assigned the Employee
without his consent to a position, responsibilities, or duties of a materially
lesser status or degree of responsibility than his position, responsibilities,
or duties as of the date of this Agreement; or (c) required that the Employee be
based anywhere other than the area set forth in Section 2.3, without the
Employee's consent; and Employee has given the Company written notice of the
particulars in which the Company is claimed to have materially breached its
obligations, and the Company has failed within thirty days after receipt of such
notice to cure such breach.
6.1.4. Termination By Company for Cause. The Company may terminate
this Agreement for Cause by giving at least 10 days' written notice of such
termination. For the purposes of this Agreement, Cause means (i) the Employee's
material breach of this Agreement or the Merger Agreement; (ii) the conviction
of or the entering of a guilty plea or plea of no contest with respect to, a
felony, the equivalent thereof, or any other crime with respect to which
imprisonment is a possible punishment and Company has given the Employee written
notice of the particulars in which the Employee is claimed to have materially
breached its obligations, and the Employee has failed within thirty days after
receipt of such notice to cure such breach.
6.2. Compensation Upon Termination.
6.2.1. If the Employee terminates the Agreement for Employee Cause, or
if the Company terminates the Agreement without Cause, and provided that
Employee has been and continues to be in compliance with the provisions of
Paragraph 9 hereof and all provisions of the Merger Agreement, Company shall
continue to pay the Employee's Base Salary for a period of the remainder of the
Initial Term, plus any notice period specified above, as applicable (subject to
withholding as provided in Paragraph 3.3 above).
6.2.2. If the Employee terminates this Agreement without Employee
Cause, or if the Company terminates this Agreement for Cause, the Company shall
have no further obligation to pay any compensation under this Agreement.
7. Expense Reimbursement. The Company shall pay (through Employee's authorized
use of a credit card provided by Company), for all ordinary, necessary, and
reasonable expenses incurred by Employee in discharging his duties hereunder,
including without limitation all costs of a cell phone and gas for his
automobile. Company's reimbursement of expenses shall be made in accordance with
the Company's policies applicable to all other employees of the Company in a
similar position as the Employee.
8. Return of Records and Property. On the termination or expiration of
Employee's Employment and/or this Agreement, regardless of the manner in which
or the reason for which it expires or is terminated, or at any other time upon
the request of the Company or its successors or assigns, Employee shall
immediately return to Company all of the following:
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8.1. All of Company's property, tangible or intangible, real, personal or
mixed, used by Employee in rendering services hereunder or otherwise that is in
Employee's possession or under his control.
8.2. All lists, files, books, accounts, drawings, memoranda,
correspondence, documents, data, notes, reports, proposals, materials, and all
other records of any description whatsoever, including any copies thereof, and
including any software disks on which such records are contained, pertaining to
the Company's business, current or prospective clients or customers, suppliers,
manufacturing or production process, and/or Confidential Information. Employee
shall have no right to copy or otherwise reproduce such records.
9. Restrictive Covenants. The parties recognize that the Services to be rendered
under this Agreement by Employee are special, unique and of an extraordinary
character. The parties further acknowledge that in the course of Employee's
performance of his duties hereunder, Employee will have access to certain
confidential information which is valuable and necessary to Company in the
conduct of its business and its goodwill. Employee, in consideration of the
compensation to be paid to him pursuant to this Agreement and the other promises
of Company made herein, expressly promises as follows, which promises shall
survive and continue after termination or expiration of this Agreement except as
set forth herein. Moreover, the terms of this Section 9 are a material
inducement to Company entering into the Merger Agreement and this Employment
Agreement.
9.1. Covenant Not to Compete. Employee will not, directly or indirectly,
for the duration of the Time Limit and within the Geographical Limit, either as
principal, agent, employee, employer, stockholder, co-partner, or in any other
individual or representative capacity whatsoever, directly or indirectly own,
manage, operate, control, aid, or assist another in the operation, organization
or promotion of, be employed by, participate in, advise, or engage in any manner
with the ownership, management, operation, or control of any business
competitive with the Line of Business. In the event of a violation of the
covenants contained in this Paragraph 9.1, the Time Limit shall be extended by a
period of time equal to that period beginning when the activities constituting
such violation commenced and ending when the activities constituting such
violation shall have been finally terminated in good faith.
9.2. Anti-Piracy Covenants. Employee will not, directly or indirectly, for
the duration of the Time Limit, do any of the following for the purpose of
competing against the Company or other than in the ordinary course of fulfilling
his duties to the Company:
9.2.1. Request or advise any present or future actual or prospective
merchandise resource, supply resource or service resource of Company to refrain
from, withdraw, curtail or cancel the furnishing or sales of merchandise,
supplies, or services to the Company.
9.2.2. Induce or attempt to influence any employee of the Company to
terminate his employment or induce or attempt to influence any prospective
employee to decline employment.
9.2.3. Request any entities to withdraw, curtail, or cancel any
business with Company.
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9.2.4. Disclose the identity of any entity who was a customer of the
Company during Employee's employment by Company to any other person, firm or
corporation, to the extent such information is not already public information.
9.2.5. Solicit or canvas business in the Line of Business from any
entity who was a customer of the Company (or any of its subsidiaries) during
Employee's employment by Company.
9.2.6. Solicit or canvas business in the Line of Business from any
entity who was a customer of the Company (or any of its subsidiaries), and with
whom Employee had contact, during Employee's employment by Company.
9.3. Trade Names. Employee will not use any corporate, fictitious or trade
name used by Company or Company's subsidiaries or related companies or use any
confusingly similar name.
9.4. Confidential Information.
9.4.1. Definition of Confidential Information. Confidential
information shall mean any confidential or non-public information of any kind,
nature, or description, concerning or arising from any matters affecting or
relating to the business of Company, including, without limiting the generality
of the foregoing, the following:
9.4.1.1. all intellectual property including, without limitation,
all trademarks, trademark registrations and applications, service marks,
copyrights, patents, trade secrets, proprietary marketing information and
know-how, product designs, formulae, processes, and techniques, and confidential
development or research work of Company;
9.4.1.2. information concerning the manner and details of
Company's operation, organization and management, including without limitation
the names of its personnel, the details of its financial affairs, credit
reports, sales records, and the prices the Company obtains or has obtained or at
which it sells or has sold its services or products;
9.4.1.3. names of, or any other information pertaining to, any of
Company's customers or persons or concerns likely to become customers of
Company, or of any past, present or future supply resources, distributors,
contractors, and vendors of Company, and the terms on which Company deals with
such entities;
9.4.1.4. marketing, sales, product development, financing,
engineering, or other business plans or strategies;
9.4.1.5. nonpublic forms, contracts and other documents used in
Company's business;
9.4.1.6. computer software developed or used by the Company,
including all rights under licenses and other contracts relating thereto, and
all source code and all documents related thereto;
9.4.1.7. any other information of, about or concerning the
business of the Company, its manner of operation, plans, or other data of any
kind, nature or description, if such
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other information is considered and treated as confidential information and/or
if such information gives to the Company an opportunity to obtain an advantage
over its competitors who do not know or use it.
9.4.2. Acknowledgement. Employee acknowledges that during his
employment by Company, he will have access to Confidential Information (as
defined above), all of which shall be made accessible to Employee only in strict
confidence; that unauthorized disclosure of Confidential Information will damage
Company's business; that Confidential Information would be susceptible to
immediate competitive application by a competitor of Company's; that Company's
business is substantially dependent on access to and the continuing secrecy of
Confidential Information; that Confidential Information is unique to Company and
known only to Employee, Company, and certain key employees and contractors of
Company; and that title, ownership, possession and control of Confidential
Information shall a all times remain vested in Company. Consequently, Employee
acknowledges that the restrictions contained in this paragraph are reasonable
and necessary for the protection of Company's business.
9.4.3. Obligation to Protect Confidential Information. Employee shall
use his best efforts and the utmost diligence to guard and protect Confidential
Information and to treat such information as confidential and prevent its
improper disclosure or use. Employee further agrees to observe and obey any
instructions and directions of Company in respect to Confidential Information,
including without limitation any stated restrictions on removing Confidential
Information from Company premises, any established sign-in and -out procedures
for Confidential Information, any directions for secure destruction of
Confidential Information, and any other instructions or directions that Company,
in its sole discretion, may issue for the protection of Confidential
Information.
9.4.4. Restriction Against Disclosure of Confidential Information.
Except in connection with and in furtherance of Employee's official duties with
and on behalf of Company, Employee shall not during the time of his employment
or at any time thereafter use, copy, divulge, transmit, convey, furnish,
disclose or otherwise communicate the "Confidential Information" (as defined
below) to any person or entity, directly or indirectly, without Company's prior
written consent.
9.4.5. Non-Use of Confidential Information of Others. Employee shall
not, during his employment by Company, improperly use or disclose any
proprietary or confidential information or trade secrets belonging to any former
employer or any third party as to whom Employee owes a duty of nondisclosure.
9.5. Non-Use of Confidential Information of Others. Employee shall not,
during her employment by Company, improperly use or disclose any proprietary or
confidential information or trade secrets belonging to any former employer or
any third party as to whom Employee owes a duty of nondisclosure.
9.6. Enforcement of Restrictive Covenants.
9.6.1. Injunctive Relief. Employee agrees that a violation on his part
of any covenant in this Section 9 will cause such damage to Company as will be
irreparable, and for that reason Employee further agrees that Company shall be
entitled, as a matter of right, and upon notice
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as provided in Section 13 hereof, to an injunction from any court of competent
jurisdiction restraining any further violation of said covenants by Employee,
his employer, employees, partners or agents. Such right to injunctive remedies
shall be in addition to and cumulative with any other rights and remedies
Company may have pursuant to this Agreement, including, specifically, the
recovery of lost profits and other monetary damages, whether compensatory or
punitive.
9.6.2. Reformation or Deletion of Invalid Provision. The following
provisions are intended to give effect to the agreement and desire of the
parties hereto that the provisions of this Section 9 be enforced to the fullest
extent possible under the laws and public policies applied in each jurisdiction
in which enforcement is sought.
9.6.2.1. Reformation By Company. The parties agree that the
Company may in its discretion at any time (whether before or during any formal
proceeding to enforce this Agreement) unilaterally reduce any restriction
hereunder to make this Section 9 enforceable to the maximum extent permissible
under law.
9.6.2.2. Automatic Reformation. If any provision of this Section
9 is determined by any court of competent jurisdiction (or any arbitrator(s)
mutually agreed upon by the parties) to be invalid, illegal or unenforceable, in
whole or in part, whether before or after reformation by the Company as set
forth in the preceding paragraph, then such provision is automatically deemed
reformed and amended so that the same shall be enforceable to the fullest extent
permissible under the laws and public policies applied in the jurisdiction in
which enforcement is sought. For example, if a court deems the Time Limit
unenforceable, the Time Limit shall be reduced in one-month increments to the
minimum extent necessary to make such restrictions enforceable. If a court would
deem the Geographical Limit overbroad, the same shall be reduced in appropriate
increments to the minimum extent necessary to make such restrictions
enforceable.
9.6.2.3. Reformation by Court. If any provision of this Section 9
is determined by any court of competent jurisdiction (or any arbitrator(s)
mutually agreed upon by the parties) to be invalid, illegal or unenforceable, in
whole or in part, whether before or after reformation by the Company as set
forth in Paragraph 9.5.2.1, and if the automatic reformation set forth in
Paragraph 9.5.2.2 does not take effect for any reason, then the court or
arbitrator(s) is/are hereby empowered to reform and amend such invalid, illegal
or unenforceable provision to make it valid, legal and enforceable.
9.6.2.4. Deletion of Provision. If any provision of this Section
9 is determined by any court of competent jurisdiction (or any arbitrator(s)
mutually agreed upon by the parties) to be invalid, illegal or unenforceable, in
whole or in part, and reformation by the Company, automatic reformation, or
reformation by the Court, as described in Paragraphs 9.5.2.2 and 9.5.2.3 does
not take effect for any reason, then the invalid, illegal or unenforceable
provision shall be deemed deleted from the Agreement, and the remainder of the
Agreement shall remain in force.
9.7. Alternative of Royalty if Restriction Unenforceable. In the event that
any applicable restrictive covenant(s) set forth in this Section 9 above is/are
deemed unenforceable for any reason, and cannot be or is/are not reformed or
amended as provided herein, then Employee shall pay to the Company a royalty
equal to five percent (5%) of the gross dollars generated from business
conducted by Employee that is described by such restrictive covenant(s). Such
royalty
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shall be paid to the Company by Employee monthly for a period of three (3) years
from and after the date of termination of this Agreement.
9.8. Time Limit; Geographical Limit.
9.8.1. The "Time Limit" shall mean six months after the end of the
Term of this Agreement. However, the provisions of Sections 9.1 and 9.2 shall
terminate if (1) this Agreement is terminated by the Company without Cause or
terminated for Employee Cause during the Initial Term or (2) the OneSource
Promissory Notes due under the terms of the Merger Agreement are not paid in
full when due.
9.8.2. The "Geographical Limit" shall mean the United States. The
Geographical Limit shall not be construed as a limitation on any provision in
this Section 9 except as expressly stated in such provision.
9.9. Survival of this Paragraph. The Parties hereto expressly agree and
understand that the provisions of this Section 9 shall survive the termination
of this Agreement for any reason.
10. Ownership of Intellectual Property.
10.1. Disclosure of Inventions. Employee shall promptly disclose in writing
to Company complete and accurate information concerning each and every
invention, discovery, idea, improvement, device, concept, design, apparatus,
practice, process, trademark or service xxxx, marketing or business idea,
software or computer program or code, method or product, whether or not
patentable or copyrightable, made, developed, perfected, devised, conceived or
first reduced to practice by Employee, either solely or in collaboration with
others, during Employee's employment, whether or not during regular working
hours, and which: (i) relates to the actual or contemplated business,
technologies or products of Company; (ii) results from any work performed by
Employee for Company; (iii) involves the use of, or is created with, Company's
equipment, supplies, facilities, or Confidential Information; (iv) results from
or is suggested by any work done at Company's request or by any Company employee
other than Employee, or relates to any work assigned to Employee by Company; or
(v) results from Employee's access to any of Company's Confidential Information
or other Company-related information (hereafter referred to as the
"Inventions").
10.2. Ownership of Inventions. Employee hereby acknowledges that all right,
title, and interest in and to the Inventions shall become and remain the sole
and exclusive property of the Company. Employee hereby assigns to Company any
and all of Employee's right, title and interest in and to any and all of the
Inventions, without further payment or other form of consideration. Employee
agrees to take all actions reasonably necessary, including execution and
delivery of such applications, assignments, and other instruments and documents
as Company shall reasonably request, to establish, perfect, exercise, confirm or
protect rights assigned or deemed assigned to Company pursuant to this
paragraph.
10.3. Works for Hire. Employee acknowledges that all original works of
authorship which are made by Employee (solely or jointly with others) within the
scope of his employment by Company, and which are protectable by copyright, are
"works made for hire," as that term is defined in the United States Copyright
Act (17 U.S.C. ss. 101). To the extent that any such works, by
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operation of law, cannot be "works made for hire," Employee hereby assigns to
Company all right, title, and interest in and to such works and to any related
copyrights.
10.4. Assistance of Employee. Upon the request of Company and without
further compensation therefor, whether during the term of Employee's employment
or thereafter, Employee shall perform all lawful acts, including, but not
limited to, the execution of papers and lawful oaths and the giving testimony,
that in the opinion of Company, its successors and assigns, may be necessary or
desirable in obtaining, sustaining, reissuing, extending and enforcing United
States and foreign Letters Patents, including, but not limited to, design
patents, on any and all of the Inventions, and for perfecting, affirming and
recording Company's complete ownership and title thereto.
10.5. Records. Employee shall keep complete, accurate and authentic
accounts, notes, data and records of all of the Inventions in the manner and
form requested by Company. Such accounts, notes, data and records relating to
the Inventions shall be the exclusive property of Company, and, upon its
request, Employee shall promptly surrender the same to it or, if not previously
surrendered upon Company's request or otherwise, Employee shall surrender the
same, and all copies thereof, to Company upon the conclusion of his or her
employment.
10.6. Obligations, Restrictions and Limitations. Employee understands that
Company may enter into agreements or arrangements with agencies of the United
States Government, and that Company may be subject to laws and regulations which
impose obligations, restrictions and limitations on it with respect to
inventions and patents which may be acquired by it or which may be conceived or
developed by employees, consultants or other agents rendering services to it. If
the Employee receives reasonable prior written notice of such, Employee agrees
that he shall be bound by all such obligations, restrictions and limitations
applicable to any said invention conceived or developed by him during the terms
of his employment and shall take any and all further action which may be
required or discharge such obligations and to comply with such restrictions and
limitations, of which he had reasonable prior written notice.
11. Ventures. If, during the term of his employment, Employee is engaged in or
associated with the researching, investigating, planning or implementing of any
project, program or venture on behalf of or involving Company, all rights in the
project, program or venture shall belong exclusively to Company and shall
constitute a corporate opportunity belonging exclusively to Company. Except as
approved in writing by the Company, Employee shall not be entitled to any
interest in such project, program or venture or to any commission, finder's fee
or other compensation in connection herewith.
12. Employee Representations, Warranties, and Covenants.
12.1. No Other Contractual Obligation. Employee represents and warrants to
the Company that the Employee's execution and performance of this Agreement does
not conflict with or cause a breach of any contractual obligation, agreement, or
understanding between Employee and any other party, including Employee's past
employers.
12.2. Disclosure of Confidential Information. Employee represents and
warrants to the Company that Employee will not use or disclose any confidential
information obtained in any
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previous employment in a manner or take any action that results in an action or
claim being instigated or made against the Company for tortious interference
with a business relationship or contract or other similar claims.
13. Notices.
13.1. Method and Time of Delivery. All notices, requests, demands, payments
and other communications required under this Agreement shall be in writing and
shall be transmitted by one of the following methods:
13.1.1. Hand delivery in which case the notice shall be deemed to have
been given on the date of delivery;
13.1.2. United States mail, return receipt requested, postage prepaid,
in which case the notice shall be deemed to have been given three business days
after the date of mailing; or
13.1.3. Reputable overnight courier, in which case the notice shall be
deemed to have been given on the business day following deposit of the notice
with the reputable overnight courier for delivery.
13.2. The foregoing to the contrary notwithstanding, if any notice is given
by facsimile as well as one of the above three methods, the notice shall be
deemed to have been given on the date of actual receipt by facsimile if earlier
than the time periods set forth for each method above.
13.3. Notice Address. Notices shall be directed to the Parties at the
following addresses.
If to the Company:
00000 Xxxxx 00xx Xxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
If to Employee:
Xxxxx X. Xxxxxxxx
000 Xxxxxxx Xxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
13.4. Any party may alter the address or addresses to which communications
or copies are to be sent to such party by giving notice of such change of
address in conformity with the provisions of this Paragraph for the giving of
notice.
13.5. Formal Notice of Certain Matters Not Required. The foregoing to the
contrary notwithstanding, however, nothing in this Section 13 shall be construed
to require the Company to give the Employee written notice, or notice in any
particular form, of day-to-day business matters, routine communications,
communications relating to the operational aspects of the Company's business,
supervisory directions or instructions, changes in or additions to duties, or
any matter addressed in Section 2 of this Agreement.
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14. General Provisions.
14.1. Binding Nature of Agreement; Assignment and Nominee. This Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective heirs, personal representatives, successors, and assigns. Employee
acknowledges that the services to be rendered by him pursuant to this Agreement
are unique and personal. Accordingly, Employee may not assign, transfer, or
encumber (whether voluntary or by operation of law) any of his/her rights or
obligations under this Agreement without the prior written consent of Company.
Any attempted transfer, assignment, or encumbrance in violation of this
provision shall be null and void and shall convey no rights or claims against
the Company to any third party. Nothing in this Agreement, whether express or
implied, is intended to confer any rights or remedies under or by reason of this
Agreement on any persons other than the parties to it and their successors and
permitted assigns, nor is anything in this Agreement intended to relieve or
discharge the obligation or liability of any third person or party to this
Agreement except as previously provided herein, nor shall any provision give any
third persons any right of subrogation or action over or against any party to
this Agreement except as may be expressly provided herein.
14.2. Company Policies. Employee hereby acknowledges and agrees that he is
bound by all of the Company's employment policies applying generally to
employees, as they may be adopted and/or modified by the Company from time to
time in its sole discretion, and to the extent not inconsistent with this
Agreement.
14.3. Entire Agreement. Except with respect to the Company's general
employment policies referenced in Paragraph 14.2 above, this Agreement
constitutes the entire Agreement and understanding among the parties hereto with
respect to the subject matter hereof and supersedes all prior and
contemporaneous agreements, understandings, inducements and conditions express
or implied, oral or written, of any nature whatsoever with respect to the
subject matter hereof. Any such prior or other agreements or understandings
between Company and Employee are hereby mutually terminated without any further
rights or obligations of either party thereunder. This Agreement may not be
modified or amended other than by an Agreement in writing signed by the party to
be charged with such modification or amendment.
14.4. Controlling Law. The parties acknowledge that this Agreement was
negotiated, executed, and delivered in the State of Arizona, and further that
this Agreement is effective upon acceptance by the Company at its principal
place of business in Phoenix, Arizona. The parties agree that all questions
relating to the validity, interpretation, and performance of this Agreement
shall be governed by and construed, interpreted and enforced in accordance with,
the substantive laws of the State of Arizona (without reference to choice of law
principles except that giving effect to the parties' express choice).
14.5. Relationship Created. The relationship created by this Agreement
shall be deemed and construed to be, and shall be, that of employer and Employee
and not of any other type or nature.
14.6. Attorneys' Fees. Should any litigation or arbitration be commenced
between the parties hereto concerning the terms of this Agreement, or the rights
and duties of the parties hereto under this Agreement, the prevailing party in
such litigation shall be entitled, in addition to such
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other relief as may be granted, to a reasonable sum as and for the prevailing
party's attorneys' and experts' fees.
14.7. Provisions Separable. Except as specifically provided in that portion
of Paragraph 9.5 hereof relating to the Construction of Restrictive Covenants,
the provisions of this Agreement are independent of and separate and severable
from each other, and no provision shall be affected or rendered invalid or
unenforceable by virtue of the fact that for any reason any other or others of
them may be invalid or unenforceable in whole or in part. Notwithstanding the
foregoing, however, the obligations of a party shall become void if the material
consideration for such obligations is or becomes invalid or unenforceable.
14.8. Indulgences Not Waivers. Neither the failure nor any delay on the
part of any party to exercise any right, remedy, power or privilege under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power, or privilege preclude any other or further
exercise of the same or of any other right, remedy, power or privilege, nor
shall any waiver of any right, remedy, power or privilege with respect to any
occurrence be construed as a waiver of such rights, remedy, power, or privilege
with respect to any other occurrence.
14.9. Costs and Expenses. Each party hereto shall bear its own costs,
including counsel fees and accounting fees, incurred in connection with the
negotiation, drafting and consummation of this Agreement and the transactions
contemplated thereby, and all matters incident thereto.
14.10. Titles Not to Affect Interpretation. The titles of Sections,
Paragraphs and Subparagraphs contained in this Agreement are for convenience of
reference only, and they neither form a part of this Agreement nor are they to
be used in construction or interpretation hereof.
14.11. Interpretation of Agreement. This Agreement shall be interpreted
according to the plain and ordinary meaning of its terms (unless specifically
defined herein). This Agreement shall not be construed against any party on
account of the identity of the person who drafted this Agreement or the
relationship of any party to the person who drafted this Agreement.
(Signature Page to Follow)
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above, effective as of such date.
"COMPANY"
ONESOURCE TECHNOLOGIES, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------
Its: CEO
-----------------------------
"EMPLOYEE"
/s/ Xxxxx X. Xxxxxxxx
----------------------------------
XXXXX X. XXXXXXXX
(Signature Page of Xxxxx Xxxxxxxx Employment Agreement)
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