EXHIBIT 10.11
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into as of the 15th day
of April, 1999 between Ahlawyss Fulton, (the "Employee") and OneSource
Technologies, Inc., a Delaware corporation, (the "Company).
RECITALS
A. The Company is engaged, among other things, in the business of office
equipment repair and maintenance. The Company has purchased Net Express,
Inc. ("Net Express") from Employee. The Employee has been previously
employed by Net Express as its President.
B. The Company desires to retain the services of Employee as its Vice
President and as President and Director of Net Express and the Employee
desires and is willing to accept employment in that capacity.
C. The Company and Employee desire to embody the terms and conditions of the
Employee's employment in a written agreement, which will supersede all
prior agreements of employment.
AGREEMENTS
Now, therefore, in consideration of the covenants and agreements set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Employment. The Employee is employed as Vice President of OneSource
Technologies, Inc. and as President and Director of Net Express through the
term of this Agreement. The Employee shall have such duties as shall be
allocated to him from time to time by the Board of Directors of the Company
(the "Board") in his capacity as the Vice President and shall serve as
President of Net Express. During the first year of this Agreement, Employee
is assigned and agrees to devote the time and effort required to plan,
oversee and implement specific projects necessary for the continued growth
of the Company and its subsidiary, Net Express including, but not limited
to: (i) implement the business plan of the Company by securing long term
contracts for maintenance and repair of office equipment and computer
networking, (ii) conduct market research and prepare business plans, and
(iii) increase sales in Net Express to a yearly level of $450,000. During
the Term of this Agreement, the Employee shall be based in the principal
offices of the Company in Phoenix, Arizona, and shall not be required to be
based anywhere other than in the Phoenix, Arizona area, except for travel
as reasonably required in the performance of his duties hereunder.
2. Term. The Term of this Agreement shall be for a period commencing on the
Effective Date and ending one (1) year from the Effective Date, unless
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sooner terminated. Prior to the anniversary of the Effective Date hereof,
the term of this Agreement shall be renegotiated for an additional period.
3. Effective Date. The Effective Date of this Agreement shall be April 15,
1999.
4. Compensation. Subject to the provisions of this Agreement, the Company
agrees to pay the Employee compensation as follows:
a. Subject to the further provisions of this Agreement, the Company agrees
to pay the Employee, commencing April 15, 1999 and through April 14, 2000
an annual salary of $40,000.00. Commencing April 15, 1999, and thereafter
throughout the Term of this Agreement, the Company agrees to pay the
Employee the salary determined annually by the Board of Directors.
b. Employee shall participate in any Company program or plan providing for
the payment of any deferred compensation, bonus, retirement or other
employee benefit plans or fringe benefits and Employee's participation
therein shall not reduce the compensation payable to the Employee under
this Section 4. Except as otherwise provided, the compensation under this
Section 4 shall be payable by the Company to the Employee in equal
semi-monthly installments, or on such other basis as the Company and the
Employee may agree but in any case not less frequently than monthly. All
compensation paid shall be subject to federal and state withholding,
according to the tax forms completed by the Employee.
5. Bonuses. A bonus pool will be created for Net Express employees. Fulton, as
President of Net Express will control distribution of this pool. Fulton may
allocate the pool to himself or to his employees in his sole discretion.
For the remainder of 1999, twenty (20%) percent of the net income of Net
Express determined on a GAAP basis (General Accepted Accounting Principals)
before taxes will be available for distribution in the pool. Allocation of
profits to the pool shall be made within thirty (30) days of the end of the
fiscal year.
6. Business Expenses. The Company will reimburse the Employee for any and all
necessary, customary, and usual expenses, properly recorded in accordance
with the Company's policies applicable to all executive employees, incurred
by the Employee on behalf of the Company, including, but not limited to,
expenses relating to meals and entertainment, continuing professional
education, and other professional expenses. Car expenses will be reimbursed
by the Company at the rate of $300.00 per month plus gasoline expense.
Employee will be required to provide proof of insurance.
7. Participation in Retirement and Employee Benefit Plans. During the Term of
this Agreement, the Employee shall be entitled to participate in any plan
of the Company relating to stock options, restricted stock awards, stock
purchases, pension, thrift, profit sharing, life insurance, medical
coverage, education or other fringe, retirement or employee benefits that
the Company has adopted or may adopt for the benefit of its senior
executives. Upon the Effective Date of this Agreement or as soon thereafter
as coverage can be obtained, and until such other benefits are provided,
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the Company shall arrange for individual medical coverage on a policy form
consistent with that provided to other executives of the Company.
8. Voluntary Absences; Vacations. The Employee shall be entitled, without loss
of pay, to be absent voluntarily for reasonable periods of time from the
performance of the duties and responsibilities of the Employee under this
Agreement. All such voluntary absences shall count as paid vacation time,
unless the board otherwise determines. The Employee shall be entitled to an
annual paid vacation of ten (10) days per year or such longer period as the
Board may approve, which vacation time shall be in addition to Saturdays,
Sundays and holidays recognized by the Company. The timing of paid
vacations shall be scheduled in a manner reasonably acceptable to the
Company.
9. Termination.
a. Termination for Disability. If, as a result of the Employee's incapacity
due to physical or mental illness, the Employee shall have been absent from
the full-time performance of the Employee's duties with the Company for
thirty (30) days, the Board of Directors of the Company may direct that
Notice of Termination be given to Employee, as provided in subsection (c)
hereof, and if, within thirty (30) days after written notice of termination
is given, the Employee shall not have returned to the full-time performance
of the Employee's duties, the Employee's employment may be terminated by
the Company for "Disability".
b. Termination for Cause. Subject to notice given as provided in subsection
(c), the Company may terminate the Employee's employment for "Cause" at any
time. Termination for Cause means the termination of employment of Employee
by the Company because of Employee's personal dishonesty, willful
misconduct, breach of fiduciary duty involving personal profit, intentional
failure to perform stated duties, willful violation of any material law,
rule or regulation resulting in the Company's detriment or reflecting upon
the Company's integrity (other than traffic infractions or similar minor
offenses) or a material breach by the Employee of the terms of this
Agreement and failure to (i) cure such breach or to begin substantial and
good faith efforts to cure such breach within thirty (30) days after
receipt of written notice from the Company specifying the nature of such
breach, or (ii) failure to pay compensation to the Company deemed
reasonable by the Company if the breach cannot be cured.
c. Termination by Exercise of Redemption Provision. In the event Employee
exercises the Redemption option pursuant to the Redemption Agreement
executed concurrently herewith, Employee shall be deemed to have
voluntarily terminated this Agreement.
d. Notice of Termination. Notice of termination of the Employee's
employment by the Company or by the Employee shall be communicated by
written Notice of Termination to the other party hereto in accordance with
Section 14. "Notice of Termination" shall mean a notice that shall indicate
the specific termination provision of this Agreement relied upon and shall
set forth in reasonable detail the facts and circumstances claimed to
provide a basis for the termination of the Employee's employment under the
provision so indicated.
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e. Date of Termination, Etc. The term "Date of Termination" shall mean (i)
if the Employee's employment is terminated by the Employee's death, the
last day of the sixth month following the date of death; (ii) if the
Employee's employment is terminated for Disability, thirty (30) days after
the Notice of Termination is given (provided that the Employee shall not
have returned to the full-time performance of the Employee's duties during
such thirty ((30) day period); (iii) if the Employee's employment is
terminated for Cause, the date specified in the Notice of Termination; and
(iv) if the Employee's employment is terminated for any other reason, the
date specified in the Notice of Termination.
10. No Assignments. This Agreement is personal to each of the parties hereto.
No party may assign or delegate any rights or obligations hereunder without
first obtaining the written consent of the other party hereto, except that
this Agreement shall be binding upon and inure to the benefit of any
successor corporation to the Company.
a. The Company shall require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all
of the business and assets of the Company to expressly assume and agree to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession had taken
place. As used in this Agreement, "Company" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid which assumes this Agreement by operation of law, or otherwise.
b. This Agreement shall inure to the benefit of and be enforceable by the
Employee and his personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If
the Employee should die while any amount would still be payable to him
hereunder had he continued to live, all such amounts, unless otherwise
provided herein, shall be paid in accordance with the terms of this
Agreement to his devisee, legatee or other designee or, if there is no such
designee, to his estate.
11. Confidential Information.
a. Employee acknowledges that he has and will have access to trade secrets
and confidential business information of the Company and its affiliates and
subsidiaries throughout the term of this Agreement and that any such trade
secret or confidential information, regardless of whether Employee alone or
with others developed any such trade secret or confidential information,
shall be and shall remain the property of the Company or its affiliates or
subsidiaries. During the term of this Agreement and after termination of
employment, Employee shall not, either voluntarily or involuntarily, on
either his own account, as a member of a firm, or on behalf of another
employer or otherwise, directly or indirectly use or reveal to any person,
partnership, corporation, or association any trade secret or confidential
information of the Company or any of its subsidiaries or affiliates. Such
trade secrets shall include, but shall not be limited to, business plans,
marketing plans or programs, any non-public financial information,
forecasts and statistics relating to routes and markets, contracts,
customer lists, compensation arrangements and business opportunities. The
term "trade secrets" shall not include information generally available to
the public or a governmental agency except
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information provided to the U.S. Securities and Exchange Commission or
other governmental agencies on a confidential basis. Employee will not make
available to any person, partnership, corporation or association, or retain
after termination of employment, any Employer policy manuals, printed
materials or computer disc containing information related to the Company or
to any subsidiary or affiliate of the Company. In the event that this
Agreement is terminated by exercise of the redemption rights by Employee or
the Company, Employee shall not be precluded by this paragraph from using
confidential information of Net Express which he originally provided to the
Company.
b. Injunctive Relief. Employee acknowledges that the restrictions contained
in this Section 12 are a reasonable and necessary protection of the
immediate interests of the Company and its affiliates and subsidiaries and
that any violation of these restrictions would cause substantial injury to
the Company. In the event of a breach or threatened breach by Employee of
these restrictions, the Company shall be entitled to apply to any court of
competent jurisdiction for an injunction restraining Employee from such
breach or threatened breach; provided, however, that the right to apply for
an injunction shall not be construed as prohibiting the Company from
pursuing any other available remedies for such breach or threatened breach.
12. Covenant Not to Compete. Employee shall not engage in any business or
perform any service, directly or indirectly, or have any interest, whether
as a proprietor, partner, employee, investor, principal, agent, consultant,
director or officer, in any enterprise, within those areas of the United
States where the Company or any of its affiliates or subsidiaries operates,
which is in competition with the business of the Company or any of its
affiliates or subsidiaries, (i) during the term of his employment
hereunder, or (ii) within one year after the termination of the Employee's
employment under the terms of this Agreement; provided, however, that this
Covenant Not to Compete shall not apply if Employee's employment is
terminated by the Company without cause. In the event that this Agreement
is terminated by exercise of the redemption rights by the Employee or the
Company, Employee shall not be precluded by this paragraph from continuing
the business of Net Express as constituted on April 15, 1999.
If any court shall determine that the duration or geographical limit of any
of the foregoing restrictions are unenforceable, it is the intention of the
parties that the foregoing restrictions shall not be terminated but shall
be deemed amended to the extent required to render them valid and
enforceable, such amendment to apply only with respect to the operation of
this Section 13 in the jurisdiction of the court that has made the
adjudication.
13. Notice. Notices and all other communications provided for in this Agreement
shall be in writing and shall be deemed to have been duly given when mailed
by United States certified or registered mail, return receipt requested,
postage prepaid, addressed to the respective addresses set forth below, or
to such other addresses as either party may have furnished to the other in
writing in accordance herewith, except that notice of a change of address
shall be effective only upon actual receipt:
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To the Company: OneSource Technologies, Inc.
2329 West Mescal
Suite 304
Phoenix, AZ 85029
Attn: Jerry Washburn
To the Employee: Ahlawyss Fulton
9201 North 29th Avenue
Suite 302
Phoenix, AZ 85051
14. Amendments or Additions. No amendments or additions to this Agreement shall
be binding unless in writing and signed by all parties hereto.
15. Section Headings. The section headings used in this Agreement are included
solely for convenience and shall not affect, or be used in connection with,
the interpretation of this Agreement.
16. Severability. The provisions of this Agreement shall be deemed severable
and the invalidity or unenforceability of any provision shall not affect
the validity or enforceability of the other provisions hereof.
17. Counterparts. This Agreement may be executed in several counterparts, each
of which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
18. Miscellaneous. No provision of this Agreement may be modified, waived or
discharged unless such waiver, modification, or discharge is agreed to in
writing and signed by the Employee and such officer as may be specifically
designated by the Board. No waiver by either party hereto at any time of
any breach by the other party hereto of, or compliance with, any condition
or provision of this Agreement to be performed by such other party shall be
deemed a waiver of similar or dissimilar provisions or conditions at the
same or at any prior or subsequent time. No agreements or representations,
oral or otherwise, express or implied, with respect to the subject matter
hereof have been made by either party which are not expressly set forth in
this Agreement and all prior agreements of the parties shall be merged
herein. The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Arizona without
regard to its conflicts of law principles. The obligations of the Company
under Section 9 and Section 10 shall survive the expiration of the Term of
this Agreement.
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In Witness Whereof, the parties hereto have executed this Agreement as of the
date first above written.
Employee The Company
OneSource Technologies, Inc.
/s/ Ahlawyss Fulton /s/ Donald Gause
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Ahlawyss Fulton Donald Gause,
Secretary/Treasurer
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