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EXHIBIT 10.23
EMPLOYMENT AGREEMENT
1. Identification
This Employment Agreement (the "Agreement") is entered into as of December
30, 1999 by and between Solutions America, Inc., a Delaware corporation
("Company"), and ▇▇▇▇ ▇▇▇▇▇▇▇, an individual ("Executive").
2. Recitals
2.1. Company is engaged in the business of providing goods and services
through the Internet and e-commerce industries.
2.2. Executive has special skills and abilities in the technology industry
and was a principal and shareholder of Sentinel Software, Inc., a Virginia
corporation ("Sentinel"), all of the stock of which was acquired by Company.
Sentinel is engaged in the software development business.
2.3. Company desires to employ Executive as Vice President of Internet
Operations of Paycom Billing Services, Inc., a wholly-owned subsidiary of
Company ("Paycom") and as President of Sentinel and Executive is willing to
undertake such employment on the terms and conditions set forth in this
Agreement. Therefore, Company and Executive agree as follows:
3. Term of the Agreement
Executive's employment under this Agreement shall be for approximately two
(2) years, commencing on December 30, 1999 and continuing through December 31,
2001 (the "Term"), subject, however, to prior termination as provided in Section
6.
4. Employment, Duties and Covenants
4.1. Employment. Executive shall be employed during the Term as Vice
President of Internet Operations of Paycom and as President of Sentinel or in
such other capacities, offices or positions with Company or any subsidiary or
affiliate of Company as Company's Board of Directors (the "Board"), Chairman of
the Board ("Chairman") or President may prescribe from time to time. All
references to Company herein shall include its subsidiaries and affiliates,
including Paycom and Sentinel.
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4.2. Duties. The powers, duties and responsibilities to be held or
performed by Executive hereunder shall include, without limitation, overall
supervision and management of Paycom's Internet Operations and Sentinel's
management and operations and such other powers, duties and responsibilities
typically held or performed by executives in the technology, internet and e-
commerce industries. Executive agrees that Company, the Board, the Chairman and
the President retain the sole discretion to modify, add to, or subtract from
Executive's powers, duties and responsibilities at any time, provided, however,
that any such modifications or additions shall be consistent with Executive's
position, experience and level of compensation. Executive shall report to, and
be under the direct supervision of, Company's Chairman and President, or such
other person or persons as Company may direct from time to time.
4.3. Performance of Duties. Executive shall discharge the duties described
herein in a diligent and professional manner. Executive shall render services
incidental to Executive's position, primarily during normal business hours
primarily at Employer's place of business in Warrenton, Virginia, or at such of
the Company's other locations as may be required by Company during the Term.
Executive understands that Executive shall be required to travel to offices of
the Company, to prospective and existing clients' locations, for business and
corporate meetings and to handle other matters in the course of performing
Executive's duties.
4.4. Extent of Services.
4.4.(a) Executive shall devote Executive's full and exclusive
productive time, energy, effort, attention and ability solely to the performance
of Executive's duties as set forth herein, and to the proper and efficient
management and development of the business and operations of Company and
Sentinel. Executive shall perform industriously and to the best of Executive's
ability, experience and talents all of the duties which may be required of
Executive from time to time. During the Term, as provided in this Section 4.4
and in Section 4.8, Executive shall not, directly or indirectly, render services
of a business, professional or commercial nature to any other person, firm or
entity, whether with or without compensation, without Company's prior written
consent. Notwithstanding the foregoing, Executive may act for Executive's own
account in passive-type investments, or engage in charitable activities,
provided that any such activities do not interfere with the discharge of
Executive's duties for Company and Sentinel.
4.4.(b) Notwithstanding Section 4.4(a) to the contrary, Executive
shall be entitled to continue to conduct his existing businesses: SolarHost,
L.L.C., a webhosting service, eClicks, Inc., an internet advertising agency, and
O & A, Inc., principally, a personnel leasing and lawn care business (the
"Existing Businesses") so long as the conduct of the Existing Businesses does
not materially conflict with or interfere with the discharge of his duties and
responsibilities hereunder, which duties and responsibilities to Company shall
be Executive's primary obligation.
4.5. Company's Authority. Executive shall observe and comply at all times
with the orders, directives and policies as may be issued from time to time,
either orally of in writing, by Company, the Board, the Chairman or the
President. Executive shall carry out and perform any and
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all orders, directions, and policies, consistent with Executive's position, as
may be so stated by the Board, the Chairman or the President from time to time,
either orally or in writing.
4.6. Nonsolicitation of Gifts. Without Company's prior written consent in
each instance, Executive shall not solicit or accept, for Executive or for the
benefit of any third party or entity, any contribution, donation, gift, discount
or rebate or the like of material value or in violation of applicable law from
any person, firm or entity with whom Company maintains any business
relationship.
4.7. No Personal Interest. Executive shall not have any personal interest,
direct or indirect, in any supplier, vendor or client of Company, its affiliates
or subsidiaries, including Paycom or Sentinel or in any transaction between, any
supplier, vendor or client and Company, its affiliates or subsidiaries,
including Paycom or Sentinel; provided, however, that this shall not apply to
Executive's ownership of the Existing Businesses.
4.8. Competitive Activities Prohibited. During the Term, Executive shall
not, directly or indirectly (unless disclosed to Company and approved by Company
in its sole and absolute discretion):
4.8.(a) engage in, have any interest in, or perform any services for
any activity or enterprise which is competitive with or adverse to the business,
activities or welfare of Company or any affiliate or subsidiary of Company,
including Paycom or Sentinel, whether alone or as an agent, employee,
consultant, advisor, promoter, lender, member, general or limited partner,
officer, director, owner or shareholder; provided, however, that nothing in this
Section 4.8 shall prohibit Executive from owning less than 4.9% of the stock of
any publicly traded company;
4.8.(b) solicit, divert, obtain business from or attempt to solicit,
divert or obtain business from any client or prospective client of Company or
any affiliate or subsidiary, including Paycom or Sentinel, or anyone who was a
client or prospective client of Company or any affiliate or subsidiary,
including Paycom or Sentinel during the Term;
4.8.(c) engage in any conduct or activity which would cause Company or
any affiliate or subsidiary of Company, including Paycom or Sentinel or
Executive to be in a position of conflict of interest or cause Company or any
affiliate or subsidiary of Company, including Sentinel to be in violation of any
law, regulation, policy, statement or rule of any applicable governmental
authority; or
4.8.(d) plan for or organize, or assist any other person, firm or
entity in planning for or organizing, any business activity which is competitive
with the business of Company or any affiliate or subsidiary of Company,
including Paycom or Sentinel.
4.9. Representations and Warranties. Executive represents and warrants that
he has the right to grant Company all of the rights that are granted hereunder
and that no permission, grant or consent of any person is necessary in order for
Executive to grant to Company the rights hereunder
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and that Company's use of any information provided to Company by Executive will
not violate the rights of any third party, Executive's rights or the rights of
anyone claiming by or through Executive. Executive represents and warrants to
Company that he has not entered into any agreements with any other party that
would interfere with or be inconsistent with his covenants, representations and
warranties herein.
5. Compensation and Other Benefits
5.1. Base Salary. As compensation for all of the services rendered by
Executive during the Term, Company shall pay Executive an annual salary in the
amount of One Hundred Sixty Eight Thousand Dollars ($168,000), for each year of
the Term prorated for any partial period. The annual salary shall be payable in
accordance with Company's regular payroll practices. Such base salary shall be
paid to Executive in accordance with Company's normal payroll practices.
5.2. Bonus. In addition to the annual base salary described in Section 5.1
above, for each of Sentinel's fiscal years during the Term (prorated for any
partial period of Executive's employment) Executive shall be entitled to a bonus
("Bonus") in an amount equal to ten percent (10%) of Sentinel's net income
before taxes ("Net Income") calculated in accordance with U.S. generally
accepted accounting principles, on a standalone basis unconsolidated with
Company, as determined by the independent public accounting firm engaged by the
Company. The Bonus shall be payable no later than ten (10) days after the
calculation of such Bonus amount.
5.3. Employment Taxes. All compensation shall be subject to all normal and
customary employment related withholding tax and other employment taxes as
required with respect to compensation paid by a company to an employee,
statutory or otherwise, including, without limitation, as applicable, state and
federal income taxes, state disability insurance and FICA.
5.4. Expenses. Company and Executive hereby acknowledge that Executive may
be required to incur certain expenses in connection with Executive's employment
hereunder including, but not limited to, parking, travel, entertainment and
other expenses. Company shall reimburse Executive for ordinary and necessary
business expenses incurred by Executive in the performance of Executive's duties
hereunder in accordance with Company's policies and procedures for making such
reimbursements if:
5.4.(a) Each such expenditure is of a nature qualifying it as a proper
deduction on the federal and state income tax returns of Company as a business
expense and not as deductible compensation to Executive; and
5.4.(b) Executive furnishes Company with adequate records and other
documentary evidence required by either federal or state statutes or regulations
issued by appropriate taxing authorities for the substantiation of such
expenditures as deductible business expenses of Company and not as deductible
compensation to Executive.
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5.5. Vacation. Executive shall accrue a total of twenty (20) days of paid
time off for each full year of the Term. If Executive's earned but unused paid
time off reaches twenty (20) days, Executive will not continue to accrue
additional paid time off until Executive uses enough paid time off to fall below
this maximum amount. Time off shall be scheduled in Executive's discretion,
subject to and taking into account the business exigencies of Company and
Sentinel. Time off in excess of two (2) consecutive weeks shall be subject to
the reasonable approval of the Board, the Chairman or the President.
5.6. Other Benefits. During the Term of this Agreement, Executive shall
receive such other life insurance, pension, disability insurance, health
insurance, holiday and sick pay benefits which Company extends, as a matter of
policy, to its executive employees and, except as otherwise provided herein,
shall be entitled to participate in all deferred compensation and other
incentive plans of Company on the same basis as other similarly situated
executives of Company.
6. Termination of the Agreement.
6.1. Termination Without Cause. Notwithstanding anything in this Agreement
to the contrary, Company may terminate Executive's employment without cause upon
ninety (90) days' prior written notice.
6.2. Termination For Good Cause by Company. Notwithstanding anything in
this Agreement to the contrary, Company may terminate Executive's employment for
Good Cause without prior notice. For purposes of this Agreement, Good Cause for
termination of Executive's employment shall be deemed to exist if:
6.2.(a) In the subjective judgment of Company, Executive breaches a
material obligation under this Agreement;
6.2.(b) Executive is convicted of or pleads guilty or nolo contendere
to a misdemeanor charge involving financial misconduct or moral turpitude or any
felony;
6.2.(c) Executive misappropriates funds or property of Company, or any
of its subsidiaries or affiliates, including Paycom or Sentinel;
6.2.(d) Executive fails to comply with the reasonable oral or written
orders, directives or policies of Company, the Board, the Chairman or the
President;
6.2.(e) In the subjective judgment of Company, Executive is
incompetent in performing his assigned duties, neglects his duties or performs
his duties in a grossly negligent or malfeasant manner; or
6.2.(f) Executive violates Company's policies regarding unfair
competition, trade secrets or confidentiality;
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6.2.(g) In the subjective judgment of Company, Executive engages in
any act of sexual harassment;
6.2.(h) Executive commits any other act or fails to take any action
which an arbitrator or court of competent jurisdiction deems to constitute Good
Cause for dismissal.
6.3. Death. Executive's employment with Company shall terminate immediately
in the event of Executive's death.
6.4. Disability. Company shall have the right to immediately terminate this
Agreement in the event of Executive's "Disability". For purposes of this
Agreement, "Disability" shall mean that because of a physical or mental
disability, Executive is unable to perform the essential functions of
Executive's job, even when Company provides such reasonable accommodations as it
can without incurring undue hardship, and Executive has exhausted all leave
allowances available to Executive pursuant to state and federal laws. If
Executive is granted a leave of absence due to Executive's physical or mental
disability, Company shall have no obligation to pay Executive any salary or
bonus compensation for the period of the leave of absence except as required by
law or as provided for pursuant to any disability insurance plans Company may
carry.
6.5. Legal Obligations Following Termination. If this Agreement is
terminated by Company as provided in Sections 6.1, 6.2, 6.3 or 6.4, Company's
sole obligation shall be the following: (i) payment of Executive's base salary
through and including the effective date of termination; (ii) payment of any
earned Bonus not yet paid; (iii) payment of the salary equivalent of all accrued
and unused vacation time; and (iv) reimbursement within thirty (30) days of
Executive's termination of any ordinary and necessary business expenses
previously incurred by Executive pursuant to Section 5.4.
7. Trade Secrets; Confidentiality
7.1. "Confidential Information". "Confidential Information" is all
information, data and knowledge of a business, professional or technical nature
relating to Company, Paycom, Sentinel, and/or their respective subsidiaries and
affiliates; and Company's, Paycom's, Sentinel's, and/or their subsidiaries' and
affiliates' business, finances, operations, properties, services and clients;
information which is not generally known outside of Company, Paycom, Sentinel,
or their respective subsidiaries and affiliates; and includes information known
to Executive as confidential or secret or which Executive shall have reason to
know or reasonably should know is confidential or secret, to the extent that
such information derives potential or actual independent economic value from not
being generally known to, and not being readily ascertainable by proper means
by, other persons who can obtain economic value from this disclosure or use and
is the subject of efforts reasonable under the circumstances to maintain its
secrecy, and shall include Discoveries (as defined in Section 7.5). Confidential
Information may relate, for example, to trade secrets, client lists, clients'
names and requirements, client businesses, client profiles, client finances,
client accounts, client contracts, employees, business methods, business or
marketing plans, personnel information, credit information, financial
information, the names and locations of vendors and suppliers, equipment,
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equipment design, development, engineering, manufacturing, purchasing,
accounting, selling, marketing, contractors, compositions, computer software,
computer hardware, technology, research, infrastructures, products, procedures,
calculations, specifications, formulae, compilations, inventions, designs,
plans, databases, database structure, data, accounts, billing methods, pricing,
costs, systems, internal affairs, legal affairs, security methods, creative
ideas and concepts, projects, advertising, merchandising techniques and any and
all information entrusted to Company, Paycom, Sentinel or their respective
subsidiaries or affiliates by third parties. This information may be contained
in materials ("Company Materials") such as books, records, files, notes, lists,
computer programs, tapes, cd roms, hard disk and soft disk drive mechanisms,
other mechanisms for electronic or digital storage of information, computer
printouts, data input to computers, drawings, documents, data, reports,
customer, price and supplier lists, specifications, or other miscellaneous
embodiments, or may be in the nature of, or consist of, verbal communication or
unwritten knowledge, techniques, formulas, processes, practices or know-how.
7.2. Acknowledgment by Executive. Executive acknowledges that Company will
be required hereunder to make Confidential Information available to Executive
which has been developed at great expense and effort by Company because
knowledge of such Confidential Information will be essential to the performance
of Executive's duties under this Agreement. Executive recognizes that Company
has expert knowledge in its field and that many of its methods, and much of its
know-how is expert and unique and its customer and potential customer contracts
are of substantial commercial value. Executive further acknowledges, without
limiting the generality of the foregoing, that the identity, business needs,
desires and peculiarities of customers and suppliers of Company constitutes
valuable Confidential Information. Executive also acknowledges that prior to or
during his employment with Company he may be given access to or become
acquainted with Confidential Information. Executive acknowledges that such
Confidential Information is a valuable, special, unique asset of Company's
business.
7.3. No Use or Disclosure. In consideration of Executive's employment by
Company, Executive agrees that, unless Executive has received the prior written
consent of Company in each instance, whether during the Term or after the
Executive's employment with Company has terminated, Executive shall not use
Confidential Information for any purpose not related to the business interests
of Company, and shall not directly or indirectly disclose or communicate any
Confidential Information to any person except as required to perform Executive's
duties for Company. If any Confidential Information or Company Materials are
sought by legal process, Executive agrees to notify Company promptly in writing
and to cooperate with Company to preserve the confidentiality of such
information in connection with any legal proceeding. If Executive becomes aware
of any unauthorized use, disclosure or communication of Confidential Information
by anyone, Executive agrees to inform Executive's supervisor immediately.
7.4. Ownership Rights. Executive acknowledges and agrees that all
Confidential Information and Company Materials, and all work product, materials
and the results and proceeds of Executive's services hereunder which Executive
makes or conceives, either solely or with others, during Executive's employment
by Company which are applicable directly or indirectly to any phase of Company's
business and that of its affiliates and subsidiaries, including Sentinel shall
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automatically become Company's sole and exclusive property and Company shall be
the owner and author thereof. Executive further acknowledges that all such work
product, materials and the results and proceeds shall constitute "works made for
hire" within the meaning of the copyright laws of the United States. Executive
hereby irrevocably assigns to Company, in perpetuity, all rights, title and
interest of any kind or character in and to all such work product, materials and
the results and proceeds including, without limitation, all copyrights and
patents pertaining thereto and all renewals, extensions, subdivisions and
continuations-in-interest thereof.
7.5. Inventions. Executive shall promptly disclose in writing to Company
all Confidential Information, ideas, programs, systems, devices, processes,
business concepts, discoveries and inventions, whether or not patentable, which
are related to Company's business or planned business or that of its affiliates
and subsidiaries, including Paycom or Sentinel or are used by Company or its
affiliates or subsidiaries, including Paycom or Sentinel or arise out of or in
connection with the duties performed by Executive hereunder and which he
conceives, makes, develops, acquires or reduces to practice, whether alone or
with others during the Term and whether during or after usual working hours
(collectively, "Discoveries"). Executive hereby irrevocably and perpetually
transfers and assigns to Company all right, title and interest in and to all
Discoveries, including any and all domestic and foreign patent rights therein
and any renewals thereof. Notwithstanding the foregoing, no assignment to the
Company is required for any Discoveries which were created by Executive during
Executive's employment with Company for which no equipment, supplies, facilities
or Confidential Information of the Company were used and which were developed
entirely on Executive's own time, and (i) which do not relate either to
Company's business or Company's actual or demonstrably anticipated research or
development, or (ii) which do not result from any work performed by Executive
for Company. THIS SECTION 7.5 DOES NOT APPLY TO ANY DISCOVERIES WHICH QUALIFY
FULLY UNDER THE PROVISIONS OF CALIFORNIA LABOR CODE SECTION 2870.
7.6. Further Assurances. On request of Company, Executive shall, from time
to time during or after the Term, execute such further reasonable instruments
(including, without limitation, applications for letters patent and assignments
thereof) and do all such other reasonable and legal acts and things as may be
deemed necessary or desirable by Company to protect and enforce its rights
pursuant to Sections 7.4 and 7.5. Company shall pay all expenses of filing or
prosecuting any patent application, copyright registration or other filings, but
Executive shall cooperate in filing and prosecuting any such application,
registration and filings. Executive shall not be entitled to any additional
compensation for the performance of his obligations hereunder.
7.7. No Removal or Duplication. Without Company's prior written consent in
each instance, or except as expressly required by Company in connection with
Executive's duties as an employee of Company, Executive shall not at any time,
whether prior to or after Executive's employment with Company ends, remove,
reproduce, summarize or copy any Confidential Information or Company Materials,
or authorize, participate in, aid or abet such removal, reproduction,
summarizing or copying. Executive shall immediately return to Company all
Confidential Information and Company
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Materials, including all copies and summaries thereof, when Executive's
employment by Company ends for any reason or at any time when Company may
otherwise require that such Confidential Information or Company Materials be
returned.
7.8. No Solicitation. While employed by Company and for a period of two (2)
years thereafter, without the express prior written approval of the Chairman or
President of Company, Executive shall not: (a) solicit or attempt to solicit any
clients of Company, Paycom, Sentinel or their respective subsidiaries and
affiliates, either for Executive or for any other person, firm or corporation;
(b) employ, attempt to employ, entice, encourage or solicit for employment by
others, any employees of the Company, Paycom, Sentinel or their respective
subsidiaries and affiliates; (c) induce or attempt to induce a consultant,
independent contractor, licensee or other third party to sever their
relationship with Company, Paycom, Sentinel or their respective subsidiaries or
affiliates; or (d) assist any other person, firm or entity in the solicitation
of any consultants, independent contractors, licensees, or employees of the
Company, Sentinel or their respective subsidiaries and affiliates.
7.9. No Employment Requiring Disclosure. Without Company's prior written
approval, Executive shall not, either during or after Executive's employment by
Company, accept employment with, acquire any financial interest in, or perform
any services for a business or entity in which Executive's interest, duties or
activities would explicitly or inherently require Executive to disclose or
communicate any Confidential Information.
7.10. Material Term. Executive acknowledges that maintaining the
confidentiality of such Confidential Information is necessary to the successful
conduct of the business of Company and its goodwill, and that any breach of any
term of this Section 7 shall be a material breach of this Agreement.
7.11. Indemnification. Executive agrees to indemnify and hold harmless
Company, Sentinel, their respective subsidiaries, affiliates and joint ventures,
and any current or former officer, director or employee of any of them, against
any claim, loss, liability, damage or expense (including, without limitation,
attorneys' fees) they may incur as a result of any breach by Executive of the
terms of this Section 7.
7.12. Survival of Obligation. Executive's obligation to maintain the
confidentiality of Confidential Information shall survive the ending of
Executive's employment by Company, and such obligation shall continue for all
time, regardless of whether such Confidential Information was obtained before,
during or after the Term of this Agreement. All covenants and agreements
contained in this Section 7 shall survive the termination of this Agreement and
Executive's employment with Company.
7.13. Specific Performance. Without in any manner limiting the provisions
of this Section 7, Executive recognizes and acknowledges that all of the
Confidential Information, as it may exist from time to time, is a valuable,
special and unique trade secret asset of Company. Executive agrees that the
remedy at law for a breach of the covenants contained in this Section 7 is
inadequate and that
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therefore in the event of a breach, or threatened breach by Executive of the
provisions of this Section 7, Company shall be entitled to an injunction or
restraining order restraining Executive from disclosing in whole or in part any
Confidential Information, or from rendering any services to any person, firm,
corporation, association or other entity to whom such Confidential Information,
in whole or in part, may have been disclosed or is threatened to be disclosed or
from breaching the covenants contained in this Section 7. Nothing herein shall
be construed as prohibiting Company from pursuing any other remedies available
to Company for such breach or threatened breach, including the recovery of
damages from Executive. To the extent permissible by law, Executive specifically
waives the necessity for Company to post bond in any injunctive or similar
proceeding, and in any event, consents to the posting of the smallest bond
allowed by law.
7.14. Reasonableness of Restrictions. Executive acknowledges that his
covenants contained in this Section 7 are a material part of the consideration
for this Agreement, are reasonably necessary to protect legitimate interests of
Company, are reasonable in scope and duration and are not unduly restrictive.
8. Indemnification.
Company shall indemnify Executive to the maximum extent permitted under
Section 317(a) through 317(e) of the California General Corporation Law, or any
successor thereto, and shall advance any expenses incurred by Executive prior to
the final disposition of the proceeding to which such indemnity relates upon
receipt from Executive of a written undertaking to repay the amount so advanced
if it shall be determined ultimately that Executive is not entitled to indemnity
under the standards set forth in such Section 317, which undertaking shall, if
so requested by Company, be secured in a manner reasonably acceptable to
Company. Such indemnity obligation shall cover all claims made against
Executive, whether prior to, during or after the Term, to the extent otherwise
covered pursuant to Section 317(a) through 317(e) of the California General
Corporation Law. Company shall use commercially reasonable efforts to obtain
directors' and officers' liability insurance for the benefit of Executive.
9. Arbitration.
9.1. Tort and Contract Claims. Company and Executive agree that, as a
condition of Executive's employment by Company, any controversy, claim or
dispute arising out of or in any way relating to this Agreement or the
interpretation or breach thereof, or to Executive's employment with Company or
the termination therefrom, that Company may have against Executive or that
Executive may have against Company or any of its subsidiaries, affiliates,
parents, joint ventures or affiliated entities including Paycom or Sentinel, or
against any then current or former officer, director, owner, shareholder,
employee, member or agent of any of them, in their capacity as such or
otherwise, including any claims of wrongful termination and breach of contract,
but excluding any statutory claims of discrimination or harassment, shall be
settled by final and binding arbitration.
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9.2. Harassment and Discrimination Claims. Company and Executive agree that
any statutory claims of discrimination or harassment shall be settled by final
and binding arbitration. EXECUTIVE ACKNOWLEDGES THAT BY INITIALING THIS SECTION
EXECUTIVE HAS VOLUNTARILY ELECTED TO ARBITRATE ALL STATUTORY DISCRIMINATION AND
HARASSMENT CLAIMS RATHER THAN LITIGATE THEM IN A COURT OF LAW AND THAT AGREEMENT
TO ARBITRATE THOSE CLAIMS WAS NOT MADE A CONDITION OF EXECUTIVE'S EMPLOYMENT BY
COMPANY.
_____ (INITIAL HERE)
9.3. Claims Exempted. Notwithstanding the foregoing, this Section 9 does
not apply to claims by Executive for workers' compensation benefits, claims by
Executive for unemployment compensation benefits or claims by Executive based
upon an employee pension or benefit plan which contains an arbitration or other
dispute resolution procedure, in which case the arbitration or other dispute
resolution provision of such plan shall control.
9.4. Procedure. All arbitrable claims shall be settled by final and binding
arbitration in accordance with the National Rules for the Resolution of
Employment Disputes of the American Arbitration Association ("AAA") in effect at
the time the claim is made. Such arbitration shall be filed with the AAA and
shall be heard on an expedited basis in Los Angeles, California. The arbitrator
shall apply, as applicable, California or federal substantive law and law of
remedies. Executive and Company agree that discovery may be conducted by any
party pursuant to the provisions of Section 1283.05 of the California Code of
Civil Procedure which are hereby incorporated into, and made a part of, this
Agreement. Any arbitrator acting hereunder shall have the full power of a court
of the State of California to issue and enforce subpoenas. A judgment upon any
award rendered by the arbitration may be entered in any court having
jurisdiction. In reaching a decision, the arbitrator shall have no authority to
change, extend, modify or suspend any of the terms of this agreement. The
parties agree that any arbitrator acting hereunder shall be empowered to assess
any remedy including, but not limited to, injunctive orders (including
temporary, preliminary and permanent relief) when appropriate. Either Executive
or Company may bring an action in any court of competent jurisdiction, if
necessary, to compel arbitration under this arbitration provision, to obtain
preliminary relief in support of claims to be prosecuted in arbitration or to
enforce an arbitration award. EXECUTIVE AND COMPANY UNDERSTAND AND ACKNOWLEDGE
THAT BY SIGNING THIS AGREEMENT, EXECUTIVE AND COMPANY ARE GIVING UP THE RIGHT TO
A JURY TRIAL AND TO A TRIAL IN A COURT OF LAW.
10. General Provisions.
10.1. Injunctive Relief. In the event of a breach by Executive of any of
his undertakings hereunder, Executive agrees that in addition to any other
rights or remedy provided by law or equity, a restraining order or an injunction
may issue against Executive to enforce compliance with this Agreement.
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10.2. Assignment. Neither this Agreement nor any rights or benefits
hereunder shall be subject to execution, attachment or similar process and
Executive may not assign, transfer, pledge or hypothecate this Agreement or any
rights or benefits hereunder without the prior written consent of Company. Any
such assignment, transfer, pledge or hypothecation hereof by Executive in
violation of this provision shall be null, void and of no effect. Subject to the
foregoing, this Agreement and all of the terms and conditions hereof shall
benefit and bind Company and its successors and assigns and shall benefit and
bind Executive and Executive's successors. Company's rights hereunder shall
accrue to the benefit of any person, firm, or corporation which may succeed to
its business by merger, purchase of stock or assets, or otherwise.
10.3. Notices.
10.3.(a) All notices, requests, payments, statements, demands or other
communications given under this Agreement (collectively "Communications") shall
be in writing. Notice shall be sufficiently given for all purposes as follows:
(1) PERSONAL DELIVERY. When personally delivered to the
recipient. Notice is effective on delivery.
(2) FIRST-CLASS MAIL. When mailed first class to the last
address of the recipient known to the party giving notice. Notice is effective
three (3) mail delivery days after deposit in a United States Postal Service
office or mailbox.
(3) CERTIFIED MAIL. When mailed certified mail, return receipt
requested. Notice is effective on receipt, if delivery is confirmed by a return
receipt.
(4) OVERNIGHT DELIVERY. When delivered by overnight delivery,
charges prepaid or charged to the sender's account. Notice is effective on
delivery, if delivery is confirmed by the delivery service.
(5) TELEX OR FACSIMILE TRANSMISSION. When sent by telex or fax
to the last telex or fax number of the recipient known to the party giving
notice. Notice is effective on receipt, provided that (a) a duplicate copy of
the notice is promptly given by first-class or certified mail or by overnight
delivery, or (b) the receiving party delivers a written confirmation of receipt.
Any notice given by telex or fax shall be deemed received on the next business
day if it is received after 5:00 p.m. (recipient's time) or on a nonbusiness
day.
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10.3.(b) Addresses for purpose of giving notice are as follows:
If to Company:
SolutionsAmerica, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Chairman
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to Executive:
Sentinel Software, Inc.
▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
10.3.(c) Any correctly addressed notice that is refused, unclaimed, or
undeliverable because of an act or omission of the party to be notified shall be
deemed effective as of the first date that said notice was refused, unclaimed,
or deemed undeliverable by the postal authorities, messenger, or overnight
delivery service.
10.3.(d) Either party may change its address or telex or fax number
for purposes of this Section 10.3 by notifying the other party of its new
address in the manner set forth in this Section 10.3
10.4. Governing Law. This Agreement is made under and shall be construed in
accordance with the laws of the State of California.
10.5. Severability. Nothing in this Agreement shall be construed to require
the commission of any act contrary to law, and wherever there is any conflict
between any provision of this Agreement and any present or future statute, law,
ordinance or regulation contrary to which the parties have no legal right to
contract, the latter shall prevail, but in such event the provision of this
Agreement so affected shall be curtailed and limited only to the extent
necessary to bring it within the requirement of the law. If any term or
provision of this Agreement is determined by a court of competent jurisdiction
to be illegal, invalid, or unenforceable for any reason whatsoever, such
illegality, invalidity, or unenforceability shall not affect the remaining terms
and provisions of this Agreement, which remaining terms and provisions shall
remain in full force and effect.
10.6. Waiver. A waiver of any of the terms and conditions hereof by Company
or Executive shall not constitute a waiver of any other term or condition
hereof, nor shall it constitute a general waiver by the waiving party, and the
waiving party shall be free to reinstate any such term or condition without
notice to the other party.
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10.7. Integration. Neither of the parties hereto have made any
representations, statements, warranties or other agreements other than those
contained herein. This Agreement embodies the entire understanding of the
parties with respect to the subject matter contained in it and supersedes all
prior and contemporaneous agreements, representations, or understandings,
written or oral, between the parties. This Agreement may be amended or modified
only by a written agreement, signed by the parties hereto.
10.8. Headings. The Section headings used herein are for convenience only
and are not a part of this Agreement.
10.9. Survival. THE COVENANTS, REPRESENTATIONS AND WARRANTIES IN SECTIONS
4.9, 7, 8, 9 AND 10 OF THIS AGREEMENT SHALL SURVIVE AND CONTINUE AFTER THE
TERMINATION OF THIS AGREEMENT FOR ANY REASON WHATSOEVER.
10.10. Pronouns. Whenever required by the context hereof, the singular
shall be deemed to include the plural and the plural to include the singular,
and the masculine, feminine and neuter gender shall each be deemed to include
the others.
10.11. Counterparts. This agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first set forth above.
"COMPANY"
SOLUTIONSAMERICA, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Chairman
"EXECUTIVE"
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇
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