EXHIBIT 10.10
RATIFICATION AGREEMENT
THIS RATIFICATION AGREEMENT (this "Agreement") is entered into effective as
of September 1, 1996, by and between E-STAMP CORPORATION, a Delaware corporation
(the "Company"), and XXXXXX XXXXXXXX, an individual (the "Employee").
W I T N E S S E T H:
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WHEREAS, the Employee previously entered into that certain Employment
Agreement with Post N Mail, L.C., a Texas limited liability company ("PNM"),
dated as of the 27th day of July, 1996, (the "Employment Agreement");
WHEREAS, pursuant to the Employment Agreement, PNM agreed to grant to
Employee options to purchase certain units of membership interest in PNM (the
"Prior Options") which was evidenced by that certain Option Agreement dated the
27th day of July, 1996 (the "Prior Option Agreement");
WHEREAS, pursuant to the Employment Agreement, PNM granted to Employee the
right to receive as additional compensation certain units of membership interest
in PNM (the "Restricted Units") which were subject to certain restrictions
including vesting provisions;
WHEREAS, PNM has reorganized and merged with and into the Company as of
September 1, 1996;
WHEREAS, the parties to this Agreement desire to reform and ratify their
agreements under the Employment Agreement, so as to cause Employee to continue
in his employment, henceforth with the Company;
WHEREAS, pursuant to such continuation of employment, the parties desire to
allow Employee to participate in the ownership of equity in the Company in a
manner similar to the Prior Options and the Restricted Units.
NOW, THEREFORE, for and in consideration of the mutual covenants contained
herein and for other good and valuable consideration, the receipt, adequacy and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. Employment. The parties hereby agree that Employee shall become an
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employee of the Company effective as of the date hereof pursuant to the terms
and conditions of the Employment Agreement, except that the Company shall
replace PNM as the employer pursuant to this reformation of the Employment
Agreement (such reformed agreement to be referred to herein as the "Reformed
Employment Agreement"). The Company shall succeed PNM as to all the rights and
interests PNM possessed in the Employment Agreement. Employee shall become an
employee of the Company pursuant to the Reformed Employment Agreement, and shall
perform those duties and
responsibilities, and receive such compensation, as was previously provided for
in the Employment Agreement except as provided herein.
2. Options. Subject to the provisions of the Company's 1996 Stock Option
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and Restricted Stock Plan (the "Plan"), the Company shall grant Employee options
to purchase 25,000 shares of the common stock of the Company at an exercise
price of $10.00 per share (the "Stock Options"). Simultaneous with the execution
of this Agreement, the Company and the Employee shall enter into a Stock Option
Agreement pursuant to which the Stock Options shall be granted. The terms and
conditions of the Stock Options shall be substantially similar to the terms and
conditions of the Prior Options, to the extent such terms and conditions are
consistent with the Plan. The Stock Options, once granted, shall amend and
replace the Prior Options, and any and all rights under the Prior Options shall
be extinguished at such time. All or a portion of the Stock Options may qualify
as Incentive Stock Options under Section 422 of the Internal Revenue Code.
3. Restricted Stock. Subject to the provisions of the Plan, the Company
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shall grant to Employee the right to receive as additional compensation options
to purchase 25,625 shares of the common stock of the Company at an exercise
price of $.25 per share (the "Restricted Stock Options"). Simultaneously with
the execution of this Agreement, the Company and the Employee shall enter into a
Restricted Stock Option Agreement pursuant to which the Restricted Stock Options
shall be granted. The Restricted Stock Options, once granted, shall amend and
replace the Restricted Units and any and all rights to the Restricted Units
shall be extinguished at such time.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
THE COMPANY:
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E-STAMP CORPORATION
Address: a Delaware corporation
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0000 Xxxx Xxx Xxxx., Xxxxx 000
Xxxxxxx, Xxxxx 00000 By:/s/ Xxxxx X. Xxxxxx
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XXXXX X. XXXXXX,
President
EMPLOYEE:
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Address:
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0000 Xxxxxxxxx Xxxxxx /s/ Xxxxxx Xxxxxxxx
Xxxxxxx Xxxx, Xxxxxxxxxx 00000 -----------------------------------
XXXXXX XXXXXXXX
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is entered into this 27th day of
July, 1996, by and between POST N MAIL, L.C., a Texas limited liability company
d/b/a E-Stamp Corporation ("Company"), and XXXXXX XXXXXXXX ("Employee").
1. Employment.
The Company hereby agrees to employ the Employee and the Employee
hereby accepts employment upon the terms and conditions specified in this
Agreement.
2. Duties and Responsibilities.
2.1 The Employee shall devote his full business time, efforts, and
abilities to the Company for the profit, benefit, and advantage of the Company,
and shall promptly obey and comply with all lawful rules, regulations, and
orders that may be issued from time to time by the Company.
2.2 The Employee shall be employed initially in the capacity as Vice
President-Business Operations and shall report to the President of the Company.
During the term hereof, the Employee shall perform such services and functions
as may be designated from time to time by the Company including, without
limitation, development services and items ancillary thereto requested by the
Company.
2.3 The Employee represents and warrants that Employee has no prior
obligations, written or oral, such as confidentiality agreements or other
agreements, which restrict Employee's ability to enter into this Agreement or to
perform any duties for the Company. Employee agrees to indemnify and hold
harmless the Company from any and all legal actions in which it is alleged or
asserted that Employee has such obligations or agreements including, but not
limited to, paying the Company's attorney's fees, costs, and any damages the
Company may be assessed.
3. Compensation.
3.1 In consideration for his services hereunder during the term of
this Agreement and the covenants contained in this Agreement, the Employee shall
be paid beginning on the Commencement Date hereof $10,000.00 per month
("Salary"), payable in accordance with the usual payroll practices of the
Company and subject to all customary payroll deductions. The Salary may be
increased or decreased at any time during the course of the Employee's term of
employment at the sole discretion of the Company.
3.2 During the term of the Employee's employment under this
Agreement, the Employee also shall be entitled to receive the following:
(i) participation in the Company's present and future benefit
plans generally offered to other employees and generally offered to employees of
similar duties and responsibilities as the Employee;
(ii) reimbursement of reasonable expenses related to the
performance of his duties hereunder; provided, however, that in order to be
reimbursed the Employee must submit vouchers or other satisfactory evidence of
such expenses as required by Company policies; and
(iii) three (3) weeks of paid vacation per work year earned
ratably per year and all holidays for which the Company is not open for
business.
4. Term and Termination.
4.1 Employees shall commence full time employment as soon as
reasonably possible, but no later than August 1, 1996, unless the Company
otherwise agrees. For purposes herein the "Commencement Date" shall be the date
that Employee commences actual full time employment. Notwithstanding anything in
this Agreement to the contrary, Employee's employment with the Company is not
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for a specific term and can be terminated at will at any time by either the
Company or the Employee, with or without cause, by giving written notice to the
other party, which notice may be for immediate termination. The at-will nature
of this employment may only be changed by a writing signed by the President of
the Company in which it specifically states that Employee's employment is no
longer at-will.
4.2 In the event of termination of employment, the Employee shall be
entitled to receive only (i) the Salary compensation due on a pro-rata basis,
(ii) reimbursement of expenses to the effective date of termination, and (iii)
an amount equal to any earned but unused vacation time based upon the then
Salary computed on a daily basis all subject to all customary payroll
deductions. Additionally, in the event of termination of employment without
"cause" as defined in Section 5.3, then the Employee shall be entitled to
receive an additional amount equal four (4) weeks of the then Salary computed on
a weekly basis subject to all customary payroll deductions.
5. Unit Grants and Unit Options.
5.1 Subject to vesting and forfeiture as provided in this Section 5.1
and subject to all other terms and conditions of this Agreement, the Company
shall issue to the Employee 5.0 Units of Membership Interest (singularly a
"Unit", collectively the "Units") of the Company (the "Unit Grant"). The Units
shall vest at the rate of 2.50 Units each year upon the first and second
respective annual anniversary dates from the Commencement Date (the "Vesting
Dates"), provided this Agreement is not sooner terminated. The unvested Unit
Grants shall terminate automatically and the Company shall have no obligation to
issue any unvested Units related thereto in the event (i) the Employee resigns
at any time for any reason whatsoever or (ii) the Company terminates the
employment with "cause" as defined in Section 5.3 at any time before the second
annual Vesting Date. In the event of termination of employment without "cause"
as defined in Section 5.3 before the second annual Vesting Date, then the
Company shall still issue to the Employee upon the first and second annual
Vesting Dates the 2.50 Units respectively scheduled to be issued as of such
dates. The Units and all rights related thereto are non-transferrable by
Employee until fully vested. The
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Units, when issued, shall be duly issued, fully paid, and nonassessable and
shall be free and clear of all liens, claims, and encumbrances, but shall be
subject to the Regulations of the Company as amended from time to time. Upon
issuance of the Units and Employee's execution of a Member Agreement similar in
form and content to that executed by other Members of the Company, the Employee
shall become a Member of the Company and shall have no rights as a Member of the
Company prior to such date. The Unit Grants shall be subject to all applicable
employment taxes and the Employee shall execute such documents and instruments
as requested by the Company to evidence the issuance and grant of the Unit
Grants.
5.2 Simultaneously with the execution hereof, the Company shall grant
the Employee an option to purchase 5.0 Units of Membership Interest of the
Company (the "Unit Options"). The Unit Options shall be non-transferable and
shall be exercisable at the rate of 1.25 Units each year upon the first, second,
third, and fourth respective annual anniversary dates from the Commencement Date
(the "Vesting Dates") provided this Agreement is not sooner terminated. The
exercise price for the 5.0 Units shall be an amount equal to $50,000 per Unit.
As the respective Unit Options become exercisable the Unit Options must be
exercised by the Employee on or before the earlier of (i) ten (10) years of each
respective Vesting Date or (ii) within ninety (90) days of termination of
employment if the termination occurs without "cause" (defined below).
Notwithstanding the preceding to the contrary, in the event of termination of
employment without "cause" before the first annual Vesting Date, then the
Employee shall retain the Unit Option for 1.25 Units which shall still be
exercisable upon the first annual Vesting Date and the remaining Unit Options
shall terminate automatically and be of no further force or effect. The Company
and the Employee shall enter into an Option Agreement simultaneously herewith
pursuant to which the Unit Options shall be granted. Any inconsistencies between
this Agreement and the Option Agreement shall be controlled by the Option
Agreement.
5.3 For purposes of the Unit Grants and the Unit Options and without
affecting the generality of Section 4.1 above, this Agreement may be terminated
immediately by the Company for "cause" which shall mean upon the occurrence of
any of the following events:
(i) breach or attempted breach by Employee of any provision of
this Agreement or negligent or unsatisfactory performance of his duties
hereunder;
(ii) misappropriation or attempted misappropriation by employee
of funds or property of the Company;
(iii) attempting to or securing any personal profit or benefit by
Employee not thoroughly disclosed to and approved by the Board of Managers in
connection with any transaction entered or to be entered on behalf of the
Company or any affiliate;
(iv) conduct on any part of the employee, even if not in
connection with the performance of his duties hereunder, which would result in
serious prejudice to the interests or reputation of the Company including,
without limitation, conviction of a felony criminal offense; or
(v) if, for a continuous period of thirty (30) calendar days,
or for more than thirty (30) calendar days in any calendar year, excluding any
authorized vacation or authorized
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leave of absence, the Employee is absent or expected to be absent from his
employment or is otherwise unable to perform his duties, as reasonably
determined by a disinterested physician selected by the Company, by reason of
illness, injury, or mental or physical disability.
5.4 In the event the Company agrees to be merged with or consolidated
into one or more corporations or other entities in which the Company shall not
be the surviving entity then, the Company shall, prior to such merger or
consolidation, obtain the full and unconditional agreement of such surviving
entity to assume all of the obligations of the Company under this Agreement.
Additionally, the Employee shall be entitled, at no additional cost, upon
receipt of the Unit Grants and the Unit Options to receive in lieu of the number
of Units to be issued under Section 5.1 and 5.2 hereof, the number and class of
shares of stock or other securities to which the Employee would have been
entitled pursuant to the terms of the agreement of merger or consolidation if,
immediately prior to such merger or consolidation, the Employee had been the
holder of record of the Units to which the Unit Grants and Unit Options are
applicable.
5.5 In the event of a Change in Control (defined below), which
effectively occurs on or before the first annual anniversary date of the
Commencement Date, the Unit Options shall immediately become exercisable as of
the date of such Change in Control and must be exercised by the Employee on or
before the earlier of (i) ten (10) years of such Change in Control or (ii)
within ninety (90) days of termination of employment if the termination occurs
without "cause" as defined above. For purposes of this Agreement, a "Change in
Control" shall be deemed to occur in the event of either (i) the sale of all or
substantially all of the Company's assets or (ii) a transaction or series of
related transactions (excluding an initial public offering) in which securities
constituting more than 50% of the Company's outstanding voting power are
transferred to a person or persons other than the persons holding such
securities immediately prior to such transaction or series of related
transactions.
6. Confidential Information and Discoveries of the Company.
6.1 The Employee will have access to confidential information of the
Company, including, but not limited to, corporate books and records, financial
information, personnel information, lists of customers and suppliers, processes
or dealings, patents, inventions, discoveries, information, data, programs, know
how, knowledge, and other trade secrets (collectively, "Confidential
Information"). "Confidential Information" shall also include but is not limited
to confidential evaluations of, and the confidential use or non-use by the
Company or any subsidiary thereof of, technical or business information not in
the public domain.
To ensure the continued secrecy of the Confidential Information,
the Employee agrees that he will not at any time during the term of the
Employee's employment with the Company or anytime thereafter, divulge such
Confidential Information to any person or entity without the prior written
consent of the Company.
During the term of this Agreement, the Employee shall not make,
other than for the benefit of the Company, any notes or memoranda relating to
any matter within the scope of the business of the Company or concerning any of
its dealings or affairs, nor shall the Employee use or permit to be used any
such notes or memoranda, other than for the benefit of the Company. Upon
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the termination of this Agreement, the Employee shall not take from the Company,
or otherwise retain, and shall surrender to the Company, any such Confidential
Information and any records, files, notes, memoranda, or other documents, or
copies thereof, relating to the business or affairs of the Company.
The obligations of this Section 6.1 shall not apply to
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Confidential Information that: (i) at the time of the Employee's employment by
the Company was in the public domain; (ii) is or becomes generally available in
the public domain other than pursuant to a breach by the Employee of his
obligations under this Section 6.1; or (iii) the Employee proves that such
Confidential Information was acquired after the date of this Agreement, from a
third party and such third party did not obtain such Confidential Information
from the Company subject to or in violation of obligations similar to those set
forth in this Section 6.1.
6.2 Any and all inventions, discoveries, ideas, concepts,
improvements, processes, methods, designs, programs and/or know-how, whether or
not patentable, or copyrightable that the Employee may conceive, discover,
develop or make, either jointly or alone, during the Employee's term of
employment with the Company and: (i) for which the Company provided equipment,
supplies, facilities, or Confidential Information; or (ii) that was developed on
or partially on the Company's time; or (iii) that relates to the Company's
current business or business that the Company is planning to develop or to the
Company's actual or planned research or development or that results from any
work performed by the Employee for the Company, shall be the sole and exclusive
property of the Company (collectively, referred to as a "Company Invention").
All works of authorship created by the Employee during the term of this
Agreement, solely or jointly with others, shall be considered works made for
hire under the Copyright Act of 1976, as amended, and shall be owned entirely by
the Company. Without limiting the generality of the foregoing, any Company
Invention of the Employee relating to any subject matter on which the Employee
worked or was informed during his employment by the Company shall be
conclusively presumed to have been conceived and made prior to the termination
of his employment (unless the Employee clearly proves that such Company
Invention was conceived and made following the termination of his employment),
and shall accordingly belong and be assigned to the Company and shall be subject
to this Agreement. The Employee shall promptly disclose to the Company all
Company Inventions that he may conceive or make, alone or with others, during
the term of his employment with the Company, and that directly or indirectly are
based on his knowledge of the information or the actual or anticipated business
or interests of the Company or any of its affiliates.
The Employee shall give all testimony and execute all patent
applications, rights or priority, assignments and other documents and in general
do all lawful things requested of the Employee by the Company to enable the
Company to obtain, maintain, and enforce protection of such ideas, inventions
and discoveries, and any improvements or modifications therein, for and in the
name of the Company, or its nominee, in all countries of the world. However,
should the Employee render any of these services following termination of his
employment, the Employee shall be compensated at a rate per hour based upon the
base wages the Employee received from the Company at the time of termination
(assuming a 40 hour work week) and shall be reimbursed for reasonable out-of-
pocket expenses incurred in rendering the services.
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NOTICE: Notwithstanding any other provision of this Agreement to
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the contrary, this Agreement does not obligate Employee to assign or offer to
assign to the Company any of Employee's rights in an invention for which no
equipment, supplies, facilities, or trade secret information of the Company were
used and which was developed entirely on Employee's own time, unless (a) the
invention relates (i) at the time of conception or reduction to practice of the
invention to the business of the Company or (ii) to the Company's actual or
demonstrably anticipated research or development or (b) the invention results
from any work performed by Employee for the Company. This notice satisfies the
written notice and other requirements of California Labor Code (S)2872.
7. Agreement Not to Solicit.
To induce the Company to enter into this Agreement, the Employee
agrees, during the term of this Agreement, and for a period of nine (9) months
after the termination of his employment with the Company for any reason, not to,
directly or indirectly, for his own account or for the account of others, employ
any of the Company's employees or induce or attempt to induce any of the
Company's employees to leave their employment, nor will the Employee in any
other way interfere with the employee relations of the Company.
8. Non-Competition.
8.1 The Employee acknowledges that he shall receive special training
and knowledge from the Company. The Employee acknowledges that included in the
special knowledge received is the Confidential Information identified in Section
6. The Employee acknowledges that this Confidential Information is valuable to
the Company and, therefore, its protection and maintenance constitutes a
legitimate interest to be protected by the Company by this covenant not to
compete. Therefore, the Employee agrees that during his employment with the
Company the Employee will not, directly or indirectly, either as an employee,
employer, consultant, agent, principal, partner, stockholder, corporate officer,
director, or in any other individual or representative capacity, engage or
participate in any business that is in competition in any manner whatsoever with
the business of the Company. The Employee represents to the Company that his
experience and capabilities are such that the enforcement of the restriction
contained in this Section 8 would not be unduly burdensome to the Employee.
8.2 In addition to the restrictions set forth in Section 8.1, the
Employee shall not during his employment and for a period ending nine (9) months
thereafter, either directly or indirectly, (i) make known to any person, firm or
corporation the names and addresses of any of the customers or suppliers of the
Company or contacts of the Company or any other information pertaining to such
persons or (ii) call on, solicit, or take away, or attempt to call on, solicit
or take away any of the customers or suppliers of the Company on whom the
Employee called or with whom the Employee became acquainted during the
Employee's association with the Company, whether for the Employee or for any
other person, firm or corporation.
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9. Remedies.
The Employee acknowledges that the provisions of Sections 6, 7, and 8
shall survive the termination of this Agreement for any reason whatsoever and
are reasonable and necessary for the protection of the Company and that the
Company will be irrevocably damaged if such provisions are not specifically
enforced. Accordingly, in the event of breach or threatened breach of the
provisions of Sections 6, 7, or 8, it is understood and agreed that the Company
shall be entitled to injunctive relief (without bond or other security being
required) as well as any and all other applicable remedies at law and in equity.
Should a court of competent jurisdiction declare any of these provisions
unenforceable due to an unreasonable restriction, or for any other reason, such
court shall have the express authority of the parties to this Agreement to
reform such provisions and/or to grant the Company any and all other relief, at
law or in equity, reasonably necessary to protect the interests of the Company.
The Employee expressly acknowledges that (i) he has been encouraged to obtain
separate legal counsel in connection with the negotiation of this Agreement who
can explain the legal effects of these provisions and (ii) he considers these
provisions to be reasonable.
10. Alternative Dispute Resolution.
Except for actions involving requests by the Company for injunctive
relief under section 9 hereof, the parties hereto hereby knowingly, voluntarily,
and irrevocably agree that any disputes or conflicts in any way arising out of
or relating to: (i) this Agreement or (ii) the performance or breach of any of
the matters described herein, may be mediated or arbitrated, at the written
election of either party hereto. If a party makes a proper election to mediate
under this paragraph, but such mediation efforts fail to resolve the subject
dispute(s) between the parties, the parties shall be bound to resolve the
subject dispute(s) by binding arbitration; provided that nothing in this
sentence shall be read to require a party to first elect to mediate any dispute
hereunder prior to electing to arbitrate. If the subject dispute(s) are
ultimately resolved by arbitration, the parties hereto irrevocably agree to be
bound by all findings of fact and conclusions of law of the arbitrator selected.
The election of a party under this paragraph shall be by delivery of written
notice to the opposing party; provided that if a legal proceeding relating to
the subject dispute (other than a proceeding for injunctive relief under section
9 hereof) has previously been filed in any court of competent jurisdiction, then
such notice of election under this paragraph shall be delivered within ninety
(90) days of the date the electing party receives service of process in such
legal proceeding. Any such mediation or arbitration shall be conducted in Palo
Alto, California, and shall proceed in accordance with the Employment Dispute
rules of JAMS/ENDISPUTE COMPANY (the "JAMS Rules"), including selection of a
single mediator and/or arbitrator. If as of the date of a proper election made
by a party under this paragraph, the JAMS Rules are not then in effect, the
mediation and/or arbitration shall proceed in accordance with the commercial
rules of the American Arbitration Association. All federal and state substantive
and procedural laws applicable to this agreement relating to arbitration or
mediation of conflicts shall be fully complied with by the parties.
Unless the parties otherwise agree, each party may conduct discovery
prior to any mediation or arbitration hearing in accordance with the California
rules of civil procedure and evidence. Additionally, there shall be no evidence
by affidavit allowed, and each party
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shall disclose a list of all documentary evidence to be used, a list of all
witnesses, and experts to be called by the party at least twenty (20) days prior
to the mediation or arbitration hearing.
To the maximum extent permitted by law, each party knowingly,
voluntarily, and intentionally waives any right to consequential, exemplary, or
punitive damages regardless of the forum for the proceedings. The provisions of
this Section 10 shall survive the termination of this Agreement for any reason
whatsoever.
11. Miscellaneous.
11.1 Notices. Any notice required or permitted under this Agreement
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shall be in writing and shall be deemed to be delivered three (3) business days
after deposit in the United States mail, postage prepaid, certified or
registered mail, return receipt requested, addressed as follows:
Company: Post N Mail, L.C.
0000 Xxxx Xxx Xxxx., Xxxxx 000
Xxxxxxx, Xxxxx 00000-0000
Attn: President
Employee: 0000 Xxxxxxxxx Xxxxxx
Xxxxxxx Xxxx, Xxxxxxxxxx 00000
Notice given in any other manner shall be effective when
delivered to the addressee. The address for notice may be changed by notice
given in accordance with this provision.
11.2 Drug Testing. Employee acknowledges and agrees that he may be
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required to submit to random drug and/or alcohol screening tests while employed
by Company. Employee agrees that the results of any blood and/or urine sample
test results may be revealed to the Company for its use and evaluation.
Furthermore, Employee acknowledges and agrees that his refusal to submit to such
testing can be grounds for immediate termination.
11.3 Amendments. This Agreement constitutes the entire agreement
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between the parties with respect to the employment of the Employee and
supersedes any prior agreements and may not be amended, supplemented, waived,
modified, or amended except by written instrument executed by the parties
hereto. There are no oral agreements between the parties.
11.4 Preservation of Business: Fiduciary Responsibility. The
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Employee shall use his best efforts to preserve the business and organization of
the Company, to keep available to the Company the services of its employees and
to preserve the business relations of the Company the Employee shall not commit
any act that might reasonably be expected to injure the Company. The Employee
shall observe and fulfill proper standards of fiduciary responsibility attendant
upon his service and office.
11.5 Assignments. The Company may not assign this Agreement without
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the consent of the Employee, except in connection with a sale of substantially
all of the assets of the Company or the merger or consolidation of the Company
with a successor entity provided in such events such transferee entity assumes
all of the obligations of the Company pursuant to this
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Agreement. The rights and obligations of the Employee hereunder are personal to
him, and no such rights, benefits, duties or obligations shall be subject to
voluntary or involuntary alienation, assignment, or transfer.
11.6 Effect of Agreement. This Agreement shall be binding upon the
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Employee and his heirs, executors, administrators, and legal representatives and
upon the Company and its successors and assigns.
11.7 Waiver of Breach. The waiver by either party hereto of a breach
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of any provision of this Agreement by the other party hereto shall not operate
or be construed as a waiver by such party of any subsequent breach of such other
party.
11.8 Governing Law. This Agreement shall be construed, interpreted
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and the rights of the parties determined in accordance with the laws (excluding
conflicts of laws provisions) of the State of California. The Company and the
Employee consent to the personal jurisdiction of all state and federal courts in
Santa Xxxxx County, California, and agree that the proper, exclusive, and
convenient venues for any mediation, arbitration, or litigation relating to this
Agreement are Santa Xxxxx County, California, and each party waives any defense,
whether asserted by motion or pleading, that Santa Xxxxx County, California, is
an improper or inconvenient venue.
11.9 Severability. If any provision of this Agreement is declared
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unenforceable, such declaration shall not affect the validity of any other
provision of this Agreement.
11.10 Construction. The headings contained in this Agreement are for
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reference purposes only and shall not affect this Agreement in any manner
whatsoever. Wherever required by the context, any gender shall include any
other gender, the singular shall include the plural, and the plural shall
include the singular.
11.11 Execution. This Agreement may be executed in multiple
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counterparts, each of which shall be deemed an original but all of which shall
be deemed one instrument. The Employee acknowledges that he has read this
Agreement and has been represented by separate legal counsel and he understands
that executing this Agreement is a condition of his employment by the Company.
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INTENDING TO BE LEGALLY BOUND, the parties hereto have executed this
Agreement as of the day and year first written above.
COMPANY:
POST N MAIL, L.C.
By: /s/ Xxxxx X. Xxxxxx
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XXXXX X. XXXXXX
President
EMPLOYEE:
/s/ Xxxxxx X. Xxxxxxxx
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