EXHIBIT 10.17
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered as of the 4th
day of January, 1999 by and between Docucon, Incorporated, a corporation
organized and existing under the laws of the State of Delaware ("Company"), and
Xxxx X. Xxxxxx, an individual residing in Glenmore, Pennsylvania ("Employee").
FOR AND IN CONSIDERATION of the mutual covenants herein contained and the
mutual benefits to be gained by the performance thereof and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. INTRODUCTION. It is the intent and purpose of Company and Employee to
specify in this Agreement the terms and conditions of Employee's employment with
Company.
2. EMPLOYMENT. Company hereby employs Employee and Employee hereby accepts
employment with Company on the terms and conditions herein set forth. In
consideration of Employee's employment by Company, Employee agrees to the terms,
conditions and covenants of this Agreement.
3. TERM OF EMPLOYMENT. This Agreement shall be effective as of January 4,
1999 and shall continue through the third anniversary of such date.
4. DUTIES AND RESPONSIBILITIES. Employee is hereby employed as, and shall
serve in the capacity of, Vice President, Operations and Technology of Company.
Employee shall have the duties and responsibilities normally performed by an
executive officer in such position, and shall perform services commensurate with
such position for Company as may be determined from time to time by the Board of
Directors of Company. Employee shall report to the President/Chief Executive
Officer of Company and shall perform services hereunder as directed by the
President/Chief Executive Officer of Company. During the term of this Agreement
Employee's primary business interest shall be the Company, and Employee shall
devote such of his time, attention, skills and energies as may be necessary to
discharge his duties and responsibilities hereunder. Employee shall, in the
performance of services hereunder, use his best efforts to serve and advance the
interest of Company well and faithfully.
5. COMPENSATION AND BENEFITS. The compensation and other benefits payable
to or accruing to Employee under this Agreement shall constitute the full
consideration to be paid to Employee for all services to be rendered by Employee
to Company and all other agreements of Employee hereunder.
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5.01 SALARY. As compensation for all services of whatever type
rendered by Employee in the performance of these duties under this Agreement and
for all other agreements and undertakings of Employee hereunder, Company shall
pay to Employee a minimum annual salary as set forth in this Section 5.01.
Employee's annual salary ("Base Salary") shall initially be One Hundred Thirty
Thousand Dollars ($130,000.00). Such Base Salary shall be payable in equal
regular installments in accordance with Company's customary payroll payment
policy.
Employee's Base Salary will be reviewed annually by the Compensation
Committee of the Board of Directors of the Company for adjustment based on
performance in accordance with Company's normal compensation policies and
practices. Employee's Base Salary shall never be decreased below its then
current level. It is specifically understood and agreed that a portion of
Employee's Base Salary hereunder is attributable to Employee's agreement,
pursuant to Section 10 hereof, to maintain the confidentiality of "Confidential
Information" (as herein defined), both during and after the term of this
Agreement, and that Employee's Base Salary would be reduced significantly if
Employee did not agree to be bound by the terms of Section 10. It is further
understood and agreed that a portion of Employee's annual salary is attributable
to Employee's agreement, pursuant to Section 11 hereof, not to compete with
Company either during or for a specified period of time after the expiration or
termination of this Agreement and that Employee's Base Salary would be reduced
significantly if Employee did not agree to be bound by the terms of Section 11
hereof. Employee agrees that he is being fairly and reasonable compensated for
the agreements undertaken by Employee pursuant to Sections 10 and 11 hereof.
5.02 BONUS. In addition to the Base Salary set forth above, Employee shall
be eligible for a targeted annual bonus of 50% of Employee's Base Salary, the
amount of such annual bonus to be determined by the Compensation Committee of
the Board of Directors. Such annual bonus will be paid not later than one
hundred twenty (120) days after the end of the Company's fiscal year.
5.03 BENEFITS. Employee shall be entitled to a paid vacation each year of
not less than four (4) weeks, the times for such vacation to be mutually agreed
upon by Employee and Company. As an executive officer of Company, Employee shall
be entitled to participate in the Company benefit programs designed for Company
employees with similar salaries, duties and/or responsibilities.
5.04 EXPENSES. Company shall pay or reimburse Employee for all reasonable
and necessary expenses actually incurred or paid by Employee during the term of
this Agreement in the performance of Employee's services under this Agreement,
upon presentation of expense statements or vouchers or such other supporting
documents as Company may reasonably require.
5.05 STOCK OPTIONS. On January 11, 1999, Company shall award to Employee
stock options to purchase (i) up to 25,000 shares of common stock of the Company
under the 1998 Employee Stock Option Plan and (ii) up to 75,000 shares of common
stock of the Company under
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the 1998 Executive Non-Statutory Plan. The terms and
conditions of the foregoing stock options and awards shall be governed
exclusively by the applicable plan and related stock option agreements.
Acceptance by Employee of the form and terms (including but not limited to
option price and exercise and vesting rights) of agreements to be executed with
respect to the award of stock options specified above is a condition precedent
to effectiveness of this Agreement.
6. INSURANCE. Company may, in its sole and absolute discretion, at any
time after the Effective Date, apply for and procure, as owner and for its own
benefit, insurance on the life of Employee, in such amounts and in such forms as
Company may choose. Employee shall have no interest whatsoever in any insurance
policy or policies obtained by Company, but Employee shall, at Company's
request, submit to such medical examinations, supply such information and
execute and deliver such documents as may be required or reasonably requested by
Company or the insurance company or companies to which Company has applied for
such insurance.
7. REPRESENTATIONS, WARRANTIES AND AGREEMENTS. Employee represents,
warrants and agrees that: (i) Employee is not currently bound by any employment
agreement, restriction or other obligation of any kind which would in any way
materially interfere with or be inconsistent with the services to be provided by
Employee to Company hereunder, (ii) Employee will not, during the term of this
Agreement, become engaged as an employee, consultant, independent contractor or
representative or in any other capacity or otherwise perform services of any
kind for any person or entity or assume any such obligations or restrictions, in
whatever capacity, which would in any way materially interfere with or be
inconsistent with the services to be provided by Employee to Company hereunder;
and, (iii) Employee is free to enter into this Agreement and the services and
work product provided by Employee to Company hereunder will be original works of
Employee and no portion of such services or work product, or the use or
distribution thereof by Company, violates or will violate, or is or will be
protected by, the right, title or interest of any patent, copyright, license or
other similar property or proprietary right of any third person or entity. The
representations contained in this Section shall survive the expiration or
termination of this Agreement.
8. REGULATIONS AND POLICIES. Employee shall, during the term of
this Agreement, comply with all Company regulations and policies, including,
without limitation, security regulations.
9. CONFIDENTIAL INFORMATION. The term "Confidential Information", as used
herein, shall mean and include any and all documents, knowledge, data or
information (in whatever medium) know, communicated, provided or made available
to Employee, whether before or after the execution of this Agreement, which are
marked with a confidentiality legend by Company or which Employee knows or
reasonably should know constitute trade secrets of Company or information
belonging to third parties to whom Company may have an obligation of
confidentiality or which embody, comprise, relate to, are incorporated in or
constitute
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"Intellectual Property" (as herein defined) in any stage of development;
including, in each case, all trade secrets and other proprietary ideas,
concepts, know-how, methodologies and information incorporated therein;
PROVIDED, HOWEVER, that Confidential Information shall not include any
information or materials which are or become generally available to the public
other than as a result of any breach of the provisions of this Agreement or any
other agreement between Employee and Company (or their respective successors,
assigns or affiliates). The term "Intellectual Property", as used herein, shall
include any and all information or materials, in any medium, of a technical or a
business nature relating to the actual or reasonably anticipated business of
Company, such as ideas, discoveries, designs, inventions, improvements, trade
secrets, know-how, manufacturing processes, product formulae, design
specifications, writings and other works of authorship, computer software,
financial figures, marketing plans, customer lists and data, business plans or
methods and any other material relating to the actual or reasonably anticipated
business of the Company. In connection with computer software, the term
"Intellectual Property" shall include, without limitation, the data bases, data
processing and communications networking systems, practices and procedures and
other internal systems, logic and controls, and the object code, source code,
source listings, programming systems, programming or systems documentation and
specifications, and user, operations or systems manuals or documentation related
thereto or incorporated therein, firmware, models, sketches, writings, flow
charts, diagrams, graphs or data related thereto, together with all
modifications, enhancements, improvements, accessions, amendments, supplements
or other additions to any of the foregoing.
10. CONFIDENTIALITY. Employee acknowledges and agrees that in his
employment by Company he occupies a position of trust and confidence and that
during the term of his employment under this Agreement he will have access to
and will become familiar with Company's Confidential Information. Employee
further acknowledges and agrees that the Confidential Information, including any
and all copies thereof, constitutes trade secrets of Company and is confidential
and proprietary information of Company. Employee further acknowledges and agrees
that he has no right, title, interest or claim in or to any of the Confidential
Information or any copies thereof. Employee agrees to maintain the
confidentiality of the Confidential Information and agrees that he will not
take, or permit to be taken, any action with respect to the Confidential
Information (or any portion thereof) which is inconsistent with the confidential
and proprietary nature of such information. Without limiting the generality of
the foregoing, Employee agrees that he will not, directly or indirectly, without
the prior specific written consent of Company, except as specifically required
in the course of his employment,
(i) communicate, divulge, transmit or otherwise disclose any
Confidential Information to any person, firm, partnership, corporation or other
entity, or
(ii) use any confidential Information in any manner except as
specifically required in connection with the performance of services hereunder,
or
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(iii) copy, reproduce or otherwise duplicate any Confidential
Information in any fashion, in whole or in part.
Employee agrees to take any and all steps reasonably necessary to protect the
confidentiality of the Confidential Information. Employee shall, upon
termination of this Agreement, immediately return to Company all Confidential
Information in Employee's control or possession, including, without limitation,
any and all copies thereof. This Section shall survive the expiration or
termination of this Agreement.
11. RESTRICTIVE COVENANT AND NONCOMPETITION.
11.01 NONCOMPETE. During the term of this Agreement, Employee shall
not, directly or indirectly, own, manage, operate, join, control or participate
in, or be connected with, directly or indirectly, as an officer, director,
stockholder, employee, advisor, consultant, partner, owner, agent,
representative or in any other capacity, any "Competitive Business"; PROVIDED,
HOWEVER, that the foregoing shall not prohibit Employee from becoming a
shareholder owning less than five percent (5%) of the shares of a corporation
whose shares are publicly traded. As used herein, the term "Competitive
Business" shall mean and include any person, firm, corporation or other entity
which offers services relating to the conversion or transferring of information
from paper or microform to computer accessible media or which engages in
document conversion, storage and/or retrieval services or which otherwise
competes in any fashion with any products or services offered by Company or
which it is reasonably anticipated will be offered by Company or which it is
reasonably anticipated will be offered by Company in the foreseeable future.
11.02 UPON TERMINATION. As an independent covenant, Employee agrees
that, for a period of one (1) year commencing upon the termination or expiration
of this Agreement for any reason, he will not, unless granted express written
permission by the Board of Directors of Company, directly or indirectly, own,
manage, operate, join, control or participate in, or be connected with, directly
or indirectly, as an officer, director, stockholder, employee, advisor,
consultant, partner, owner, agent, representative or in any other capacity, any
Competitive Business; PROVIDED, HOWEVER, that the foregoing shall not prohibit
Employee from becoming a shareholder owning less than five percent (5%) of the
shares of a corporation whose shares are publicly traded.
11.03 NO USURPATION. As an independent covenant, Employee agrees,
during the term of this Agreement and, upon termination or expiration of this
Agreement for any reason, for a period of one (1) year thereafter, unless
granted express written permission by the Board of Directors of Company, not to
divert, take, solicit and/or accept on his own behalf or on behalf of any other
person, firm, company or other entity, any business of any customer or client of
Company whose identity became known to Employee through his employment by or
involvement with Company which constitutes business relating to the actual or
reasonably anticipated business of Company.
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11.04 COMPANY EMPLOYEES. As an independent covenant, Employee
agrees, during the term of this Agreement and, upon termination or expiration of
this Agreement for any reason, for a period of one (1) year thereafter, not to
induce or attempt to influence any employee of Company to terminate his or her
employment with Company.
11.05 REASONABLENESS. Employee acknowledges and agrees that the
covenants and agreements set forth in this Section are made to protect the
legitimate business interests of Company, including Company's interest in
Confidential Information, and not to restrict his mobility or to prevent him
from utilizing his skills. Employee recognizes and acknowledges the necessarily
national and international scope of the market served by Company and agrees that
the restrictions set forth in this Section are reasonable.
11.06 SURVIVAL. This Section 11 shall survive the expiration or
termination of this Agreement.
12. OWNERSHIP OF DEVELOPMENTS AND WORK PRODUCTS.
12.01 DEVELOPMENT. Employee agrees that any and all Intellectual
Property and any and all other material relating to the actual or reasonably
anticipated business or services of Company, developed, prepared, conceived,
made, discovered or suggested by Employee, solely or jointly with others, during
the term of this Agreement, whether on or off the premises of Company
(collectively "Developments"), including all such Developments as are originated
or conceived during the term of this Agreement but which are completed or
reduced to practice thereafter, shall be deemed to be "works made for hire"
within the meaning of Title 17, U.S.C. 101, and shall be and remain the sole and
exclusive property of Company. To the extent that any such Developments may not,
by operation of law, be "works made for hire", Employee hereby assigns,
transfers and conveys to Company the ownership of all right, title and interest
in and to such Developments, including, without limitation, all copyrights,
patents and other proprietary and property rights applicable thereto, and
Company shall have the right to obtain and hold in its own name such copyrights,
patents or other proprietary protection which may be available or become
available in such Developments. Employee agrees that Company shall have the
right to keep such Developments as trade secrets, if Company chooses.
12.02 COOPERATION. Employee agrees, at any time during the term of
this Agreement and thereafter, to execute such documents and provide such
additional cooperation as Company may reasonably request or require in order to
perfect, evidence, protect or secure Company's right, title and interest in and
to any and all such Developments. Without limiting the generality of the
foregoing, either during or subsequent to Employee's employment, upon the
request and at the expense of Company, and for no remuneration in addition to
that due Employee hereunder pursuant to his employment by Company, Employee
agrees to execute, acknowledge and deliver to Company or its attorneys any and
all instruments which in the judgment of
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Company or its attorneys may be necessary or desirable to secure or maintain for
the benefit of Company adequate patent, copyright and/or other property or
proprietary rights protection in the United States and/or foreign countries with
respect to any Developments, including, but not limited to: (i) domestic and
foreign patents, trademarks, service marks and copyright applications, (ii) any
other applications for securing, protecting or registering any property or
proprietary right, and (iii) powers of attorney, assignments, oaths,
affirmations, supplemental oaths and sworn statements.
12.03 DISCLOSURE TO COMPANY. Employee shall, during the term of this
Agreement and for a period of one (1) year thereafter, disclose promptly in
writing to Company all Developments, whether copyrightable, patentable or not,
made, discovered, written, conceived, first reduced to practice or developed by
Employee, either alone or in conjunction with any other person or entity while
employed by Company.
12.04 SURVIVAL. This Section 12 shall survive the expiration or
termination of this Agreement.
13. PERFORMANCE BY EMPLOYEE. Employee acknowledges and agrees that the
value of the Confidential Information and the success and long-term viability of
Company depends largely upon Employee's performance of his obligation under
Sections 10, 11 and 12 of this Agreement.
14. INJUNCTIVE RELIEF. Employee acknowledges and agrees that in the event
of any unauthorized use or disclosure of Confidential Information in violation
of the terms and conditions of Section 10 of this Agreement by Employee, or any
breach of any of the terms and conditions of Sections 11 or 12 of this Agreement
by Employee, Company will suffer irreparable injury not compensable by money
damages and therefore will not have an adequate remedy available at law.
Accordingly, if Company institutes an action or proceeding to enforce the
provisions of Sections 10, 11 or 12 of this Agreement, Company shall be entitled
to obtain such injunctive relief or other equitable remedy from a court of
competent jurisdiction as may be necessary or appropriate to prevent or curtail
any such breach, threatened or actual. The foregoing shall be in addition to and
without prejudice to such other rights as Company may have at law or in equity.
15. TERMINATION.
15.01 TERMINATION. Employee's employment hereunder is terminable,
with or without cause, at the will of either Company or Employee upon the giving
of 30 days' prior written notice by either party. If Employee's termination is
voluntary or "for cause," Company shall discontinue Employee's compensation as
of the effective date of the termination of Employee's employment. If Employee's
termination is involuntary and/or without cause or good reason, including,
without limitation, termination resulting from the death or mental or physical
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disability of Employee, Employee's compensation hereunder shall continue to be
paid for a period of twelve (12) months from the effective date of termination
of employment. For purposes of this Agreement, "for cause" shall mean:
(a) Any willful or intentional act of Employee which has or will have
the effect of injuring the reputation or business relationships of
Company or its affiliates;
(b) Employee's conviction of or entering a plea of nolo contendere to a
charge of felony or a misdemeanor involving dishonesty or fraud;
(c) Employee's material breach of any of the terms, covenants or
conditions contained in this Agreement; PROVIDED, HOWEVER, that
with respect to any breach which can be effectively cured by some
act of Employee, such termination of this Agreement shall be revoked
if, within fourteen (14) days after receipt of notice of such breach
from Company, Employee cures such breach to the reasonable
satisfaction of Company or, if such cure cannot reasonably be
accomplished within such fourteen (14) day period, if Employee
initiates efforts to cure such breach within such fourteen (14) day
period and diligently pursues such cure efforts thereafter until
such cure is accomplished; or
(d) Employee's repeated or continuous failure, neglect or refusal to
perform his duties under this Agreement.
For purposes of this Agreement, "good reason" shall mean:
(a) The assignment to Employee of a job position or title that is junior
or inferior to that of Vice President Operations and Technology;
(b) The assignment to Employee of duties that are materially different
from the duties of Vice President Operations and Technology;
(c) Any reduction in Employee's Base Salary or bonus opportunity (such
bonus opportunity as defined in paragraph 5.02 above);
(d) Any breach by Company of any stock option agreement to which
employee is a party;
(e) The Company's material breach of its obligations under this
Agreement or any other plan or agreement relating to Employee's
employment or compensation;
(f) Any request or directive by the Company or its Board of Directors
calling for Employee to commit, implement or participate in actions
that are dishonest,
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unlawful or a material violation of Company policy;
(g) Any change in control (defined below); or
(h) Any failure by Company to obtain the assumption of this Agreement by
an assignee or successor, as required in Section 18.02 below.
For purposes of this Agreement, "change in control" shall mean:
A transaction or series of transactions (including any cash tender or securities
exchange offer, merger, sale of asset, or other business combinations or
contested election of directors, or any combination thereof) as the result of
which (a) any person (other than the Company, a subsidiary of the Company, an
employee benefit plan of the Company or of a subsidiary of the Company) together
with all affiliates and associates of such persons (within the meaning of Rule
12b-2 of the General Rules and Regulations under the Securities Exchange Act of
1934, as amended), shall become the Beneficial Owner of 40% or more of the
aggregate combined Voting Power of all Voting Securities of the Company then
outstanding, or (b) during any period of two consecutive calendar years there is
a change of 50% or more in the composition of the Board of Directors of the
Company in office at the beginning of such two-year period except for changes
approved by at least two-thirds of the directors then in office who were
directors at the beginning of the period. For purposes of this Agreement, a
Change of Control shall be deemed to have occurred on the date upon which either
of the foregoing results is consummated or becomes effective. For purposes of
this Agreement, "Voting Power" means with respect to any Voting Security the
maximum number of votes that such security is or would be entitled to cast
generally for the election of directors, and in the case of a convertible,
exercisable, or exchangeable Voting Security, considering such security both on
an unconverted, unexercised, or unexchanged basis, as the case may be. "Voting
Securities" means to the common stock and any other securities of the Company
entitled to vote generally for the election of directors, any security
convertible into or exchangeable for or exercisable for the purchase of common
stock of the Company (other than employee stock options or other employee stock
purchase rights), and other securities of the Company entitled to vote generally
for the election of directors.
Until the effective date of termination, Employee, if requested to do so by
Company, shall continue to render services to Company.
15.02 EXCESS PARACHUTE PAYMENTS. Notwithstanding the foregoing
provisions of this Section 15, if Employee will be considered (as determined in
the sole opinion of a national accounting firm employed by Employee) as
receiving payments, any part of which constitutes excess parachute payments,
such payments shall be reduced by or, if already paid, refunded to Company in
the minimum amount (such minimum amount shall be determined by the national
accounting firm employed by Employee, who shall interpret and apply all
applicable law and regulations in the way which results in the most favorable
results for Employee and who shall
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so instruct Company of its determination) required to result in there being no
excess parachute payments; PROVIDED, HOWEVER, (i) the payments to be made to
Employee pursuant to this Section 15 shall be reduced first and in the manner
requested by Employee, and (ii) if the compensation to be paid to Employee after
the termination of his employment is reduced to $0.00 as a result of the
operation of this subparagraph, no further reduction of any kind in any other
payments to Employee shall be made, notwithstanding that any part of such
remaining payments may constitute excess parachute payments. As used herein, the
terms excess parachute payment and parachute payment shall have the same
definition as such terms are given in Section 280G of the Internal Revenue Code
of 1986, as amended and as may be amended after the date hereof ("IRC"), or as
defined in any section of the IRC hereafter enacted to succeed Section 280G.
15.03 NO DUTY TO MITIGATE. Employee shall not be required to
mitigate the amount of any post employment payment or benefit paid or provided
to Employee under this Agreement by seeking other employment or otherwise, nor
shall the amount of any such payment or benefit paid or provided to Employee
under this Agreement be reduced or offset by any compensation earned by Employee
as the result of employment by another employer or otherwise.
16. EFFECT OF TERMINATION. Upon the termination or expiration of this
Agreement: (i) Employee shall immediately return to Company and all Confidential
Information in his possession or control (including, without limitation, all
copies thereof and all materials incorporating such Confidential Information),
(ii) Employee shall have no further obligation to perform services for Company
hereunder, PROVIDED, HOWEVER, that Employee shall continue to be bound by the
terms of Sections 10, 11 and 12 hereof, and (iii) except to the extent
specifically provided in Section 15 above, Company shall have no further
obligation to compensate or provide benefits to Employee hereunder.
17. BUSINESS KNOWLEDGE AND EXPERIENCE. Notwithstanding anything to the
contrary contained in this Agreement, it is specifically understood and agreed
that Employee has, prior to entering into this Agreement, developed significant
business expertise, ideas and experience (collectively "Business Experience")
and that such Business Experience, to the extent it applies to business
operations generally and not to the specific operations, technologies or trade
secrets of Company, shall not be deemed to constitute Confidential Information,
and nothing contained in Section 10 of this Agreement shall be deemed to prevent
Employee from using such general Business Experience in such a manner as does
not violate any of the other terms and conditions of this Agreement.
18. GENERAL.
18.01 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND Covenants. All
representations, warranties and covenants contained herein shall survive the
execution of this Agreement and the consummation of the transactions
contemplated hereby.
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18.02 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs,
successors, assigns and legal representatives, but shall not be assignable by
Employee. Any purported assignment in violation of the foregoing shall be
invalid and of no force and effect. No assignment of this Agreement shall
relieve the assigning party of any obligation or liability hereunder.
In the event the Company wishes to assign this Agreement, it must require the
assignee expressly to assume this Agreement and agree to perform under it in the
same manner and to the same extent that the Company would be required to perform
if no such succession had taken place. Such assumption, however, shall not
constitute a release or novation with respect to the Company's obligations
hereunder.
18.03 NOTICES. Any notice, demand, payment, request, response or
other communication provided for herein or given hereunder to a party hereto
shall be in writing and shall be deemed to have been duly given if signed by the
party giving it. Notice shall be deemed effective upon delivery by hand, or on
the third business day after it is deposited in the United States mail, postage
prepaid (registered or certified mail) or on the business day after it is sent
by federal express or similar overnight service to the address of the parties
listed below:
if to Company: 000 Xxxx Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxx, XX 00000
if to Employee: Xxxx X. Xxxxxx
000 Xxxxxxxxx Xxxxx
Xxxxxxxx, Xx. 00000
or to such other address as the party to receive such communication has last
designated by notice delivered to the other party in accordance with the
foregoing provisions.
18.04 WAIVER. Failure or delay in insisting upon strict compliance
with any provision hereof shall not be deemed a waiver of such provision or any
other provision hereof with respect to prior, such provision or any other
provision hereof with respect to prior, contemporaneous or subsequent
occurrences. No waiver by either party of any right hereunder or of any default
shall be binding upon such party unless such waiver is in writing and signed by
Employee (in the case of Employee) or a duly authorized officer or partner of
Company in the case of Company.
18.05 GOVERNING LAW; VENUE. This Agreement shall be governed by and
construed in accordance with the laws of the state in which the corporate
headquarters is located as of the date when the course of action arose or the
events in question occurred.
18.06 ENTIRE AGREEMENT. Any and all previous employment agreements,
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whether written or oral, existing between Company and Employee shall be deemed
to be revoked and cancelled for all purposes on the Effective Date. This
Agreement, as may be amended from time to time, shall represent the sole and
entire agreement between Employee and Company respecting the employment
relationship between Company and Employee. There are no representations,
agreements, arrangements or understandings, oral or written, between or among
the parties hereto relating to the employment relationship between Company and
Employee which are not fully expressed in this Agreement.
18.07 SEVERABILITY. The provisions of this Agreement are severable
and the invalidity or unenforceability of any provision hereof shall not affect
the validity or enforceability of any other provision. In addition, in the event
that any provision of this Agreement (or portion thereof) is determined by a
court to be unenforceable as drafted by virtue of the scope, duration, extent or
character of any obligation contained therein, the parties acknowledge that it
is their intention that such provision (or portion thereof) shall be construed
in a manner designed to effectuate the purposes of such provision to the maximum
extent enforceable under applicable law.
18.08 ATTORNEY'S FEES. If any legal action or other proceeding is
brought for the enforcement of this Agreement, or because of an alleged dispute,
breach, default or misrepresentation in connection with any of the provisions of
this Agreement, the prevailing party shall be entitled to recover reasonable
attorneys' fees and other costs incurred in that action or proceeding, in
addition to any other relief to which it may be entitled.
18.09 REMEDIES CUMULATIVE. All remedies provided for in this
Agreement shall be cumulative and in addition to and not in lieu of any other
remedies available to either party under this or any other agreement between the
parties or at law, in equity or otherwise.
18.10 LANGUAGE. The language used in this Agreement shall be deemed
to be language chosen by the parties hereto to express their mutual intent, and
no rule of strict construction against any party shall apply to any term or
condition of this Agreement.
18.11 AMENDMENT. This Agreement may not be modified or amended
except by written agreement executed by all of the parties to this Agreement at
the time of such amendment.
18.12 HEADINGS. The descriptive headings of the sections, paragraphs
and subparagraphs hereof are inserted for convenience only and do not constitute
a part of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
DOCUCON, INCORPORATED ("Company")
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_______________________________ By: XXXXXXX X. XXXX
Xxxx X. Xxxxxx ("Employee") Its: PRESIDENT AND CHIEF EXECUTIVE OFFICER
