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Exhibit 10.8
[company logo]
March 24, 2000
Xxxxxxx Xxxxxxx
[address]
RE: Employment Agreement
Dear Xxxx:
I am please to offer you the position of Interim Chief Financial Officer with
Unitrend, Inc. This position will require over 25 hour a week, but less than 40
hours. You will report directly to me. This position will be temporary until the
Company retains a permanent Chief Financial Officer. Your compensation will be
paid on an hourly basis, at the rate of $40.00 an hour. You will also be
entitled to participate in our health insurance benefits which include health
insurance (HMO), dental plan and vision plan.
As the position of Interim Chief Financial Officer is temporary, you will not be
eligible for the Automatic Employee Grant under the 1999 Equity Incentive Plan,
or to participate in the 2000 Cash Incentive Plan. However, at the discretion of
the Appointed Officer under the Equity Incentive Plan and the Board, you may
receive equity compensation based upon your job performance.
As an employee of Unitrend, Inc. you will be expected to abide by Unitrend's
rules and regulations, adhere to defined work schedules and to devote your
business time, skill, attention and best efforts to Unitrend's business to
fulfill the responsibilities assigned to you. Your employment will be at-will,
and either you or Unitrend may terminate the employment relationship at any time
and for any reason, with or without cause. As a condition of your employment,
you will be required to sign and comply with Unitrend's Non-compete Agreement
and Trade Secret Agreement, attached to this letter. You will also be required
to submit documentation of your identity and your eligibility for employment at
Unitrend.
The agreement set forth in this letter, which can not be modified except in
writing signed by you and myself, sets forth our entire understanding regarding
your employment and relationship with Unitrend and supersedes any other
negotiations or written or oral agreements regarding your prospective employment
with Unitrend. The offer described in this letter will remain open for 10 days
from the date of this letter unless we notify you otherwise.
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We hope very much that you will accept our offer and look forward to having you
join us and become a key part of Unitrend's future success. Please confirm your
acceptance by signing a copy of this letter in the space indicated below and
returning it to me.
Very truly yours,
/s/Xxxxxx X.X. Xxxxxxxx
Xxxxxx X.X. Xxxxxxxx
President & CEO
Unitrend, Inc.
AGREED AND ACCEPTED:
/s/Xxxxxxx Xxxxxxx
-------------------------
Xxxxxxx Xxxxxxx
Date March 27, 2000
-------------------------
XX/XX/XX
-------------------------
Planned Start Date
Enclosures: Employee Non-compete and Trade Secret Agreement
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NON-COMPETE AGREEMENT
This Non-Compete Agreement (hereafter referred to as the "Agreement")
is effective as of March 27, 2000 between Unitrend, Inc. an Ohio corporation
(hereafter referred to as "the Company"), and Xxxxxxx Xxxxxxx (hereafter
referred to as the "Employee").
RECITALS
The Company desires to enter into the following Agreement with Employee
and Employee desires to enter into the following Agreement in accordance with
the terms and conditions set forth below.
AGREEMENTS
In consideration of the mutual covenants contained herein, and for
other good and valuable consideration, receipt of which is acknowledged by the
parties, the Company and Employee agree as follows:
1. NON-COMPETITION: By signing this Agreement Employee agrees that:
A. DEFINED TERMS: The principal business of the Company is the
development, design and marketing of hardware and software for the computer
industry, particularly for computer enclosures and related accessories,
including but not limited to office furniture. The region serviced by the
Company is a geographic area that will include the United States of America and
the European and Asian continents (hereafter referred to as the "Region").
Employee acknowledges that Employee's employment with the Company will bring
Employee into close contact with the members and other customers of the Company
and with the trade secrets and other confidential affairs of the Company.
Employee has not previously been employed in the computer industry and will
derive substantial information concerning the computer industry, key customers,
technology and opportunities or related businesses as a result of his or her
employment by the Company and at the expense of the Company. The Company has a
significant interest in protecting its proprietary interests in and goodwill
associated with the foregoing. The term "Restrictive Period" means the period of
three (3) years following the termination of Employee's employment with the
Company (whether for cause, or upon any or no reason).
B. PERIOD OF EMPLOYMENT: During the term of Employee's
employment hereunder, Employee shall not directly or indirectly, either as an
employee, employer, consultant, agent, principal, partner, stock holder,
corporate officer, director, or any other individual representative capacity,
engage or participate in or acquire, hold, or retain any interest in any
business which is competitive with the business of the Company (as defined
above) in any location, or its shareholders or any business selling or doing
business with the Company, unless such participation or interest is fully
disclosed to the Company and approved by a majority of the Company's Board of
Directors.
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Notwithstanding the foregoing, Employee may acquire, hold or retain equity
ownership of any publicly held Company, provided that such equity ownership does
not exceed five percent (5%) of the issued and outstanding shares of the voting
stock for such Company.
C. RESTRICTIVE PERIOD: During the Restrictive Period, unless
the Company and Employee shall otherwise agree in writing, Employee shall not:
(i) compete directly with the Company in the Region; (ii) enter into the employ
of or render any services to, as an independent contractor or otherwise, any
person or entity engaged in the business (or any aspect thereof) in competition
with the Company in the Region; (iii) become interested, as an individual,
partner, co-venturer, shareholder, officer, director, employee, principal,
agent, trustee, or in any other relationship or capacity, in any person or
entity engaged in the business (or any aspect thereof) in competition with the
Company in the Region; or (iv) on his or her own behalf or on behalf of or as an
employee or agent of any other person or business, contact or approach any
person or business wherever located with a view to selling or assisting others
to sell products or services substantially competing with the business of the
Company.
D. ENFORCEABILITY: If any portion of Paragraph 1 of this
Agreement is held to be illegal, unenforceable, void, or voidable, the remainder
shall remain in full force and effect and such portion shall be deemed altered
and amended to the minimum extents necessary to bring it within the legal
requirements of enforceability.
2. UNIQUE SERVICES: Employee hereby acknowledges and agrees that the
services to be performed under the terms of this Agreement are of a special,
unique, unusual, extraordinary, and intellectual character that gives them a
peculiar value, the loss of which cannot be reasonably or adequately compensated
in damages in any action at law. Employee, therefore, expressly agrees that the
Company, in addition to any rights or remedies that the Company might possess,
shall be entitled to injunctive and other equitable relief to prevent or remedy
a breach of this Agreement by Employee.
3. LIQUIDATED DAMAGES UPON VIOLATION: Employee agrees that, in the
event of violation by Employee of this Agreement, Employee will pay as
liquidated damages to the Company the sum of two hundred fifty dollars ($250.00)
per day, for each day or part thereof that Employee continues to break the
Agreement. It is recognized and agreed that damages in such event are difficult
to ascertain, though great and irreparable, and that this Agreement with respect
to liquidated damages shall in no event prevent the Company from obtaining
injunctive relief as specified in Paragraph 2 of this Agreement.
4. NOTICES: Any notices to be given hereunder by either party to the
other shall be in writing and may be transmitted by personal delivery or by
certified mail, return receipt requested. Mailed notices shall be addressed to
the parties as follows:
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If notice is to the Company, to: Unitrend, Inc.
Attn.: Chief Executive Officer
0000 X. Xxxxxxxx
Xxxxxx, Xx. 00000
Copy: Unitrend, Inc. Corporate Counsel
0000 X. Xxxxxxxx
Xxxxxx, Xx 00000
If notice is to Employee to: Xxxxxxx Xxxxxxx (name)
-------------------------
XXXXXXXXXXX (address)
-------------------------
XXXXXXXXXXX (address)
-------------------------
Either party may change its address by written notice in accordance
with this section. Notices delivered personally shall be deemed communicated as
of the dates of actual receipt; mailed notices shall be deemed communicated as
of forty-eight hours after the date of mailing.
5. ATTORNEY'S FEES AND COSTS: If either party fails to perform its
respective obligations under this Agreement, and the other party is thereby
required to incur attorney's fees or other fees or costs, including but not
limited to the costs of arbitration, the party so incurring such fees and costs
shall be entitled to the payment of those fees and costs by the breaching party.
6. ENTIRE AGREEMENT: This Agreement supersedes any and all other
agreements against competition, either oral or in writing, between the Employee
and the Company and contains all of the covenants and agreements between the
parties with respect to that noncompetition in any manner whatsoever. Each party
to this Agreement acknowledges that no representations, inducements, promises,
or agreements either oral or written have been made by any party, or anyone
acting on behalf of any party, which are not embodied herein, and that no other
agreement, statement, or promise regarding non-competition or against
competition not contained in this Agreement shall be valid or binding on either
party.
7. MODIFICATIONS: Any modifications of this Agreement shall be
effective only if it is in writing and signed by both parties, unless such
modifications are imposed by a court of competent jurisdiction in relation to a
dispute between the Company and the Employee, as provided-for in Paragraph 1.D.
of this Agreement.
8. EFFECT OF WAIVER: The failure of either party to insist on strict
compliance with any of the terms, covenants, or conditions of this Agreement by
the other party shall not be deemed a waiver of that term, covenant, or
condition, nor shall any waiver or relinquishment of any right or power at any
one time or times be deemed a waiver or relinquishment of that right or power
for all or any other times.
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9. PARTIAL INVALIDITY: If any provision of this Agreement is held by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remaining provisions shall nevertheless continue in full force without being
impaired or invalidated in any way unless such partial invalidity materially
affects the intent of the parties.
10. GOVERNING LAW: This Agreement shall be governed and construed in
accordance with the laws of the State of Ohio.
11. ASSIGNABILITY: The rights and duties of either party hereunder
shall not be assignable by either party except if this Agreement and all rights
and obligations hereunder may be assigned by the Company to, and be assumed by,
any corporation or other business entity which succeeds to all or substantially
all of the assets and business of the Company through merger, consolidation,
acquisition of assets, or other corporate reorganization.
12. SURVIVAL: The covenants, agreements, representations, and
warranties contained in or made pursuant to this Agreement shall survive
Employee's termination of employment irrespective of any investigation made by
or on behalf of any party.
13. TOLLING PERIOD: The Restrictive Period described in Paragraphs 1.A.
and 1.C. of this Agreement shall not run during the time in which the Employee
is in violation of this Agreement.
14. ADVICE OF COUNSEL: Employee understands the nature of and the
burdens imposed by the restrictive covenants contained in this Agreement.
Employee has independently consulted with his/her counsel, or has had ample
opportunity to consult with legal counsel of his/her choice, and after such
consultation or opportunity for consultation represents and agrees that such
covenants are reasonable, enforceable, and proper in duration, scope, and
effect.
15. HEADINGS: The captions in this Agreement are for the convenience of
the parties, and have no force or effect
16. NO DEFENSE: A claim by Employee against the Company shall not
constitute a defense to the Company's enforcement of the restrictions contained
in this Agreement.
17. ANTI-SOLICITATION: Employee agrees that in addition to any other
limitation, for a period of three (3) years after the termination of his/her
employment with the Company, except a termination caused by the Company in
violation of the terms of the Employment Agreement, and unless otherwise
specified, he/she will not, on behalf of himself/herself or on behalf of any
other person, firm, corporation, business or entity, call on any of the
customers or employees of the Company, or any of its affiliates, subsidiaries or
trade partners for the purpose of soliciting any of the entities described above
into joining with the Employee or another, transacting business with the
Employee or another for any service or product that competes with the principal
business of the
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Company, as defined above. Further, Employee agrees that he/she will in no way,
directly or indirectly, for himself/herself, or on behalf of any other person,
firm, corporation, business or entity solicit, divert or take away customers
and/or employees of the Company, its affiliates, subsidiaries, or trade
partners.
18. ADMISSIONS OF EMPLOYEE: By initialing the box to the right and by
signing this Agreement, Employee expressly recognizes and acknowledges:
A. ADMISSION OF NEED: The Company has great need in protecting
its proprietary interests in and goodwill associated with the business of the
Company, as defined above; and
B. ADMISSION OF REASONABLENESS: The definitions and
restrictive provisions contained herein, and particularly those found in
Paragraph 1 of this Agreement are reasonable and acceptable to the Employee,
including those provisions relating to time and geographic restrictions.
19. RESTRICTIVE COVENANTS: Employee represents and warrants that
his/her experience and capabilities are such that the restrictive covenants set
forth herein will not prevent him/her from earning his/her livelihood and that
Employee will be fully able to earn an adequate livelihood for himself/herself
and his/her dependents if any of such provisions should be specifically enforced
against Employee.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of this day and year first above written.
UNITREND, INC.,
By: /s/ Xxxxxx X.X. Jelinger
-------------------------------
Name: Xxxxxx X.X. Jelinger
-------------------------------
Title: President
-------------------------------
Employee: /s/ Xxxxxxx Xxxxxxx
-------------------------------
Printed name: Xxxxxxx Xxxxxxx
-------------------------------
Address: XXXXXXXXXXXX
-------------------------------
Effective date:
-------------------------------
Signing date: March 27, 2000
-------------------------------
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ATTESTATION BY EMPLOYEE
I, Xxxxxxx Xxxxxxx , do hereby attest and certify that I have read the above
Agreement and that I have been advised that due to the nature of the above
Agreement, I should seek legal counsel prior to executing such Agreement. I have
(have not) sought such legal counsel and understand that the above Agreement
restricts my rights and activities with regard to my future work and/or
employment possibilities and that the Agreement contains various duties and
obligations of mine with regard to Unitrend, Inc.
Signed: /s/ Xxxxxxx Xxxxxxx
--------------------------
Dated: March 27, 2000
--------------------
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TRADE SECRETS AND CONFIDENTIAL
INFORMATION AGREEMENT
This Trade Secrets Agreement (hereafter referred to as the "Agreement")
is effective as of March 27, 2000 between Unitrend, Inc. an Ohio corporation
(hereafter referred to as "the Company"), and Xxxxxxx Xxxxxxx (hereafter
referred to as "Employee").
RECITALS
The Company desires to enter into the following Agreement with Employee
and Employee desires to enter into the Following Agreement in accordance with
the terms and conditions set forth below.
AGREEMENTS
In consideration of the mutual covenants contained herein, and for
other good and valuable consideration, receipt of which is acknowledged by the
parties, the Company and Employee agree as follows:
1. ASSIGNMENT OF INTELLECTUAL PROPERTY RIGHTS:
A. DEFINITION OF "INVENTIONS": As used herein the term
"Inventions" shall mean all inventions, discoveries, improvements, formulas,
trade secrets, techniques, methods, data and know-how, programs, systems,
specifications, documentation, algorithms, flow charts, logic diagrams, source
codes, processes, and other information, including works-in-progress, whether or
not the subject of patent, trademark, copyright, trade secrets, or masked work
protection, and whether or not reduced to practice by Employee, either alone or
jointly with others, during the period of employment with the Company and for
one year following the termination of Employee's employment with the Company
which (i) relate to the actual or anticipated business, activities, research, or
investigations of the Company, or (ii) result from or are suggested by work
performed by Employee for the Company (whether or not made or conceived during
normal working hours or on the premises of the Company), or (iii) which result,
to any extent, from the use of the Company's premises or property.
B. WORK FOR HIRE: Employee expressly acknowledges all
copyrightable aspects of the Inventions are to be considered "works made for
hire" within the meeting of the Copyright Act of 1976, as amended (the "Act"),
and that the Company is to be "Author" within the meaning of such Act for all
purposes. All such copyrightable works, as well as all copies of such works and
whatever medium fixed or embodied, shall be owned exclusively by the Company as
its creation. Employee hereby expressly disclaims any and all interests in any
of such copyrightable works and waives any right of droit morale or similar
rights.
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C. ASSIGNMENT: Employee acknowledges and agrees that all
Inventions constitute trade secrets of the Company or the member of the Company,
as applicable and shall be the sole property of the Company, as applicable or
any other entity designated by the Company. In the event that title to any or
all the Inventions or any part or element thereof may not by operation of law
vest in the Company, as applicable, or such Inventions may be found as a matter
of law not to be "works made for hire" within the meaning of the Act, Employee
hereby conveys and irrevocably assigns to the Company, as applicable, without
further consideration, all his or her right, title, and interest, throughout the
universe and in perpetuity, in all Inventions and all copies of them, in
whatever medium fixed or embodied, and in all written records, graphics,
diagrams, notes, or reports relating thereto in Employee's possession or under
his or her control, including, with respect to any of the foregoing copyright,
patent, trademark, trade secrets, masked work, and any all other proprietary
rights therein, the right to modify and create derivative works, the right to
invoke the benefit of any priority under any international convention and all
rights to register and renew same.
D. PROPRIETARY NOTICES; NO FILINGS; WAIVER OR MORAL RIGHTS:
Employee acknowledges that all Inventions shall, at the sole option of the
Company, bear the Company's patent, copyright, trademark, trade secret, and
masked work notices. Employee agrees not to file any patent, copyright, or
trademark applications relating to any Invention, except with prior written
consent of an authorized representative of the Company. Employee hereby
expressly disclaims any and all interest in any Inventions and waives any right
of droit morale or similar rights, such as rights of integrity or the right to
be attributed as the creator of the Invention.
E. FURTHER ASSURANCES: Employee agrees to promptly assist the
Company, or any party designated by the Company, at the Company's request,
whether before or after the termination of employment, however such termination
may occur, in perfecting, registering, maintaining and enforcing, in any
jurisdiction, the Company's rights in the Inventions by performing all acts and
executing all documents and instruments deemed necessary or convenient by the
Company, including by way of illustration and not limitation: (i) executing
assignments, applications, and other documents and instruments in connection
with obtaining patents, copyrights, trademarks, masked works, or other
proprietary protections for the Inventions; and confirming the assignment to the
Company of all right, title, and interest in the Inventions or otherwise
establishing the Company's exclusive ownership rights therein; (ii) cooperating
in the prosecution of patent, copyright, trademark, and masked work
applications, as well as in the enforcement of the Company's rights in the
Inventions, including, but not limited to testifying in court or before any
patent, copyright, trademark, or masked work registry office, or any other
administrative body. Employee will be reimbursed for all out-of-pocket costs
incurred in connection with the foregoing if such assistance is requested by the
Company after the termination of employment. In addition, to the extent that
after the termination of employment for whatever reason Employee's technical
expertise shall be required in connection with the fulfillment of the
aforementioned obligations, the Company will compensate Employee at a reasonable
rate for the time actually spent by Employee at the Company's request for
rendering such assistance.
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F. POWER OF ATTORNEY: Employee hereby irrevocably appoints the
Company to be his or her attorney in fact and thereby expressly authorizes the
Company in his or her name and on his or her behalf to execute any document,
undertake any action and generally to use his or her name for the purpose of
giving to the Company the full benefit of the assignment provisions set forth
above.
G. CONSENT TO USE OF NAME: The company reserves the right (but
shall not have the obligation) to publicize Employee's name and background in
connection with the marketing of Inventions or the enforcement of the Company's
rights therein. Employee is responsible for supplying to the Company his or her
resume or curriculum vitae for such purposes. Employee agrees that the Company
shall have the sole control over the type style, type size, or the placement of
his or her name on any materials, and over the final content of any biography
used in set material.
H. DISCLOSURE OF INVENTIONS: Employee will make full and
prompt disclosure to the Company of all Inventions subject to assignment to the
Company pursuant to Paragraph 1.C. of this Agreement and all information
relating thereto in Employee's possession or under his or her control as to
possible applications and use thereof.
I. NO VIOLATION OF THIRD PARTY RIGHTS: Employee represents,
warrants and covenants that he or she (i) will not in the course of employment,
infringe upon or violate any proprietary rights of any third parties (including,
without limitations, any third party confidential relationships, patents,
copyrights, masked works, trade secrets, or other proprietary rights); (ii) is
not a party to any conflicting agreements with third parties which will prevent
him or her from fulfilling these terms of employment and the obligations of this
Agreement; (iii) does not have in his or her possession any confidential or
proprietary information or documents belonging to others and will not disclose
to the Company, use or induce the Company to use, any confidential or
proprietary information or documents of others; (iv) agrees to respect any and
all valid obligations which he or she may now have to prior employers or to
others related to confidential information, Inventions, or discoveries which are
the property of those prior employers or others as the case may be. Employee has
supplied or shall promptly supply to the Company a copy of each written
agreement to which Employee is subject (other than any agreement to which the
Company is a party) which includes any obligation of confidentiality, assignment
of Inventions, or non-competition. Employee agrees to indemnify and save
harmless the Company from any loss, claim, damage, costs, or expenses of any
kind (including without limitation, reasonable attorney's fees) to which the
Company may be subjected by virtue of a breach by Employee of the foregoing
representations, warranties and covenants.
J. OBLIGATIONS UPON TERMINATION: In the event of the
termination of his or her employment for whatever reason, Employee will promptly
(i) deliver to the Company all his or her physical property, (including but not
limited to disks, documents, notes, printouts, and all copies thereof) and other
materials in
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Employee's possession or under Employee's control pertaining to business of the
Company, including but not limited to, those embodying or relating to the
Inventions outlined above and the Confidential Information as outlined below;
(ii) deliver to the Company's Legal Counsel or other person designated by the
Company all notebooks and other data relating to research or experiments or
other work conducted by Employee in the scope of employment or any Inventions
made, created, conceived, authored, or reduced to practice by Employee, either
alone or jointly with others; and (iii) make full disclosure relating to any
Inventions. If Employee would like to keep certain property such as material
relating to professional societies or other non-confidential material upon the
termination of employment with the Company, he/she agrees to discuss such issues
with the Company. Where such a request does not put the Company at risk or is
not confidential information of the Company, the Company will customarily grant
the request. Upon termination of employment with the Company, Employee's
obligations under this section shall survive and the Employee shall, if
requested by the Company, reaffirm Employee's recognition of the importance of
maintaining the confidentiality of the Company's confidential information and
reaffirm all of the Employee's obligations set forth in this section.
2. CONFIDENTIAL INFORMATION:
A. DEFINITIONS: "Confidential Information" for purposes of
this agreement includes, without limitation, trade
secrets, financial information, sales information, price
lists, marketing data, the identity and lists of actual
and potential customers and technical information, all to
the extent that such information is not intended by the
Company for public dissemination.
B. DUTIES: Employee shall at all times during and after his
or her employment with the Company hold in strictest
confidence any and all confidential information within
his or her knowledge and which is material to the
business of the Company (whether acquired prior to or
during her employment with the company) concerning the
inventions, products, processes, methods of distribution,
customers, services, business, suppliers or trade secrets
of the Company. Provided, however, that Employee may, in
connection with the performance of his or her duties to
the Company, divulge confidential information to the
directors, officers, employees and shareholders of the
Company and to the advisors, accountants, attorneys or
lenders of the Company or such other individuals as
deemed prudent in the course of business to carry out the
responsibilities and duties of his or her position, or as
required by law.
C. DUTIES UPON TERMINATION: Upon leaving the Company's
employ, Employee agrees that he or she will not take with
him or her, without the prior written consent of an
officer authorized to act in the matter by the Board of
directors of the Company, any Company
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contract, internal financial or management reports,
customers list, product list, price list, catalog,
employee list, procedures, software, MIS data, drawing,
blueprint, specification of any other assets or documents
of the company, its subsidiaries, affiliates and
divisions.
3. NOTICES: Any notices to be given hereunder by either party to the
other shall be in writing and may be transmitted by personal delivery or by
certified mail, return receipt requested. Mailed notices shall be addressed to
the parties as follows:
If notice is to the Company, to: Unitrend, Inc.
Attn.: Chief Executive Officer
0000 X. Xxxxxxxx
Xxxxxx, Xxxx 00000
Copy: Unitrend, Inc. Corporate Counsel
0000 X. Xxxxxxxx
Xxxxxx, Xxxx 00000
If notice is to Employee, to: Xxxxxxx Xxxxxxx (name)
-----------------------------
XXXXXXXXXXX (address)
-----------------------------
XXXXXXXXXXX (address)
-----------------------------
Either party may change its address by written notice in accordance
with this section. Notices delivered personally shall be deemed communicated as
of the dates of actual receipt; mailed notices shall be deemed communicated as
of forty-eight hours after the date of mailing.
4. ATTORNEY'S FEES AND COSTS: If either party fails to perform its
respective obligations under this Agreement, and the other party is thereby
required to incur attorney's fees or other fees or costs, including but not
limited to the costs of arbitration, the party so incurring such fees and costs
shall be entitled to the payment of those fees and costs by the breaching party.
5. ENTIRE AGREEMENT: This Agreement supersedes any and all other trade
secrets agreements, either oral or in writing, between the Employee and the
Company and contains all of the covenants and agreements between the parties
with respect to trade secrets and Inventions in any manner whatsoever. Each
party to this Agreement acknowledges that no representations, inducements,
promises, or agreements either oral or written have been made by any party, or
anyone acting on behalf of any party, which are not embodied herein, and that no
other agreement, statement, or promise as pertaining to trade secrets or
Inventions not contained in this Agreement shall be valid or binding on either
party.
6. MODIFICATIONS: Any modifications of this Agreement shall be
effective only if they are in writing and signed by both parties.
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7. EFFECT OF WAIVER: The failure of either party to insist on strict
compliance with any of the terms, covenants, or conditions of this Agreement by
the other party shall not be deemed a waiver of that term, covenant, or
condition, nor shall any waiver or relinquishment of any right or power at any
one time or times be deemed a waiver or relinquishment of that right or power
for all or any other times.
8. PARTIAL INVALIDITY: If any provision of this Agreement is held by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remaining provisions shall nevertheless continue in full force without being
impaired or invalidated in any way unless such partial invalidity materially
affects the intent of the parties.
9. GOVERNING LAW: This Agreement shall be governed and construed in
accordance with the laws of the State of Ohio.
10. ASSIGNABILITY: The rights and duties of either party hereunder
shall not be assignable by either party except if this Agreement and all rights
and obligations hereunder may be assigned by the Company to, and be assumed by,
any corporations or other business entity which succeeds to all or substantially
all of the assets and business of the Company through merger, consolidation,
acquisition of assets, or other corporate reorganization.
11. SURVIVAL: The covenants, agreements, representations, and
warranties contained in or made pursuant to this Agreement shall survive
Employee's termination of employment irrespective of any investigation made by
or on behalf of any party.
12. TOLLING PERIOD: The restrictive periods described herein shall not
run during the time in which the Employee is in violation of this Agreement.
13. ADVICE OF COUNSEL: Employee understands the nature of and the
burdens imposed by the restrictive covenants contained in this Agreement.
Employee has independently consulted with his/her counsel, or has had ample
opportunity to consult with legal counsel of his/her choice, and after such
consultation or opportunity for consultation represents and agrees that such
covenants are reasonable, enforceable, and proper in duration, scope, and
effect.
14. HEADINGS: The captions in this Agreement are for the convenience of
the parties, and have no force or effect.
15. NO DEFENSE: A claim by Employee against the Company shall not
constitute a defense to the Company's enforcement of the restrictions contained
in this Agreement.
16. RESTRICTIVE COVENANTS: Employee represents and warrants that
his/her experience and capabilities are such that the restrictive covenants set
15
forth herein will not prevent him/her from earning his/her livelihood and that
Employee will be fully able to earn an adequate livelihood for himself/herself
and his/her dependents if any of such provisions should be specifically enforced
against Employee.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of this day and year first above written.
UNITREND, INC.,
By: /s/ Xxxxxx X.X. Jelinger
-----------------------------
Name: Xxxxxx X.X. Jelinger
-----------------------------
Title: President
-----------------------------
Employee: /s/ Xxxxxxx Xxxxxxx
-----------------------------
Printed name: Xxxxxxx Xxxxxxx
-----------------------------
Address: XXXXXXXXXXXX
-----------------------------
Effective date:
-----------------------------
Signing date: March 27, 2000
-----------------------------
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ATTESTATION BY EMPLOYEE
I, Xxxxxxx Xxxxxxx , do hereby attest and certify that I have read the above
Agreement and that I have been advised that due to the nature of the above
Agreement, I should seek legal counsel prior to executing such Agreement. I have
(have not) sought such legal counsel and understand that the above Agreement
restricts my rights and activities with regard to my future work and/or
employment possibilities and that the Agreement contains various duties and
obligations of mine with regard to Unitrend, Inc.
Signed: /s/ Xxxxxxx Xxxxxxx
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Dated: March 27, 2000
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