EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT, made and entered into as of June 9, 2006, by and between
DAVID S. KINCER (the "Executive") and Datascension, Inc., a Nevada corporation
(the "Company").
WITNESSETH THAT:
WHEREAS, the Board of Directors of the Company has determined that it is
in the best interests of the Company's shareholders to encourage the continued
executive leadership of the Executive; and
WHEREAS, Executive desires to continue with his employment relationship
based on terms set forth herein.
NOW, THEREFORE, in consideration of the foregoing, the mutual provisions
contained herein, and for other good and valuable consideration, the parties
agree to enter into this Agreement and to agree with each other as follows:
1. EMPLOYMENT. Subject to the terms of this Agreement, the Company hereby
agrees to employ the Executive as its President and Chief Executive
Officer of Datascension, Inc. and Datascension International, Inc. (a
wholly owned subsidiary) during the Agreement Term (as defined below),
with such authority, power, responsibilities and duties customarily
exercised by a person holding such positions in a company of the size and
nature of the Company. In his positions with the Company, the Executive
shall only report directly to the Board of Directors of the Company (the
"Board"). This contract shall take effect on January 1, 2006 (the
"Effective Date"). The "Agreement Term" shall be the period beginning on
the Effective Date and ending on the third anniversary of the Effective
Date; provided, however, the Agreement Term will be automatically
extended by twelve months on the first anniversary of the Effective Date
and on each anniversary thereof, unless one party to this Agreement
provides written notice of non-renewal to the other party within 30 days
prior to the date of such automatic extension.
2. PERFORMANCE OF DUTIES The Executive agrees that during his employment with
the Company, he shall devote his full business time, energies and talents
to serving in the positions described in Section 1 and that he shall
perform his duties faithfully and efficiently subject to the directions
of the Board. Notwithstanding the foregoing provisions of this Section 2,
the Executive may (i) serve as a director, trustee or officer or
otherwise participate in not-for-profit educational, welfare, social,
religious and civic organizations; (ii) serve as a director of any for-
profit business, with the prior consent of the Board (which consent shall
not be unreasonably withheld); and (iii) acquire passive investment
interests in one or more entities, to the extent that such other
activities do not inhibit or interfere with the performance of the
Executive's duties under this Agreement, or to the knowledge of the
Executive conflict in any material way with the business or policies of
the Company or any subsidiary or affiliate thereof.
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3. COMPENSATION Subject to the terms of this Agreement, during the Agreement
Term, while the Executive is employed by the Company, the Company shall
compensate him for his services as follows:
(a) Base Salary The Executive shall receive an annual base salary
of $275,000.00 payable in monthly or more frequent installments in accordance
with the Company's payroll policies (such annual base salary as adjusted
pursuant to this Section 3(a) shall hereinafter be referred to as "Base
Salary"). The Executive's Base Salary shall be reviewed, and may be increased
but not decreased, annually, by the Board pursuant to its normal performance
review policies for senior executives, with the first such review occurring not
later than December 2006. Should the Company for any reason be unable to pay
the Executive monthly or more frequent installments in accordance with the
Company's payroll policies, the Executive may elect either of the following
alternatives, or a combination thereof;
(i) Executive may elect to treat the unpaid compensation as a
loan payable on demand that accrues an annual interest of ten (10%) percent;
and/or
(ii) Executive may elect to receive common stock of the
Company issued under an S-8 registration statement which will provide the
Executive common stock at fair market value based on the average closing price
for the five (5) trading days preceding the request for issuance of stock for
the effective pay period. Executive may also elect to receive common stock of
the Company issued under an S-8 registration statement which will provide the
Executive common stock at fair market value based on the average closing price
of the five (5) trading days preceding the request for issuance of stock for
the loan payable on demand pursuant to subsection 3(a)(i).
(b) Initial Restricted Stock Award. The Company shall make an
initial signing award to the Executive of 500,000 restricted shares of the
Company's common stock under and subject to the terms and conditions of the
Company's Stock Compensation Plan dated January 1, 2004 or as thereafter
amended (the "Stock Plan").
(c) Restricted Stock Option Award. The Company shall make an
award to the Executive of restricted shares of the Company's common stock under
and subject to the terms and conditions of the Stock Plan and Common Stock
Purchase Warrant, a copy of which is attached and incorporated herein as
EXHIBIT A, as follows:
(i) For calendar year 2006, if the Company's sales exceed
$12,000,000 and $500,000 in EBIDTA, 500,000 options at
$.30 per share.
(ii) For calendar year 2007, if the Company's sales exceed
$15,000,000 and $1,000,000 in EBIDTA, 1,000,000 options
at $.30 per share.
Nevertheless, if the Company's 2007 sales/EBIDTA exceed
the prior year (2006), there will be an
award of 500,000 options at $.30 per share.
(iii) For calendar year 2008, if the Company's sales exceed
$18,000,000 in sales and $1,500,000 in EBIDTA,
1,000,000 options at $.30 per share. Nevertheless, if
the Company's 2008 sales/EBIDTA exceed the prior year
(2007), there will be an award of 500,000 options at
$.30 per share.
In any event resulting in the sale of the Company, all options
awarded to Executive shall become immediately redeemable. If the Executive is
terminated, without cause (as defined infra), at any time, the options become
immediately redeemable.
(d) Employee Benefits, Fringe Benefits and Perquisites The
Executive shall be provided with employee benefits, fringe benefits and
perquisites on a basis no less favorable than such benefits and perquisites are
provided by the Company from time to time to the Company's other senior
executives, including, but not limited to, five weeks vacation and health,
vision and dental insurance. Notwithstanding any provision contained herein, at
the time that the Executive is eligible to participate in the Company's group
health plan; neither he nor any of his dependents will be subject to any pre-
existing condition provision contained in such plan.
(e) Expense Reimbursement. The Company will reimburse the
Executive for all reasonable expenses incurred by him in the performance of his
duties in accordance with the Company's policies applicable to senior
executives. Any expenses not reimbursed within 30 calendar days of submission
will be treated similar to unpaid compensation as discussed in subsection
3(a)(i) at the option of the Executive.
(f) Stock Splits. Any amounts to be issued in stock under this
Agreement will be adjusted for any stock splits unless issuance has already
been made to Executive.
(g) Spin Offs. In the event a subsidiary company is spun off and
the Executive is employed in the subsidiary on a full time basis, compensation
will then be paid by the subsidiary and not the parent. A new compensation
agreement will be executed for the Executive with the subsidiary, derived by
its Board of Directors with terms not to be less than those currently
effective. This agreement will then immediately terminate under the conditions
in subsection 5 (b). In the event a subsidiary company is spun off and the
executive is not employed in the subsidiary, the Executive will be entitled to
participate in an option plan of that subsidiary that will be constructed prior
to the completion of the spin off in the same percentage ratios as those used
for the Executive in the parent company option plans.
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4. INDEMNIFICATION. The Director Indemnity Agreement dated January 1, 2004,
incorporated herein by reference, as between Executive and the Company,
shall remain in effect through the term of this Agreement.
5. TERMINATION OF EMPLOYMENT. Upon termination of the Executive's employment
for any reason, the Executive or, in the event of death, the Executive's
estate shall be entitled to the Executive's Base Salary pro rated through
the date of termination. Any annual incentive payment earned by the
Executive for a prior award period, but not yet paid to the Executive,
and any employee benefits to which the Executive is entitled by reason of
his employment shall be paid to the Executive or his estate at such time
as is provided by the terms of the applicable Company plan or policy. If
the Executive's employment is terminated during the Agreement Term, the
Executive's right to additional payments and benefits under this
Agreement for periods after his date of termination shall be determined
in accordance with the following provisions of this Section 5.
(a) Death. If Executive's employment is terminated by reason of
his death, the Executive's spouse and eligible dependents, shall be eligible
for continued participation in all medical, dental, vision and hospitalization
insurance plans in which they were participating at the time of the Executive's
death for 18 months after the Executive's date of death, which shall run
concurrently with their COBRA rights. For the 18-month period described in this
Section 5(a), the Executive's spouse and eligible dependents shall pay no
portion of the premium or cost for such coverage.
(b) Termination for Cause or Voluntary Resignation. If the
Executive's employment is terminated by the Company for Cause or if the
Executive voluntarily resigns from the employ of the Company, other than
pursuant to a Constructive Discharge (as described in paragraph (d) of this
Section 5), all payments and benefits to which the Executive would otherwise be
entitled under this Agreement shall immediately cease, except as otherwise
specifically provided above in this Section 5 with respect to his pro rated
Base Salary through the date of termination, his annual Incentive Payment, if
any, earned for a prior award period and his previously earned employee
benefits. For purposes of this Agreement, the term "Cause" shall mean:
(i) the Executive is convicted of a felony or any crime
involving moral turpitude resulting in reputational harm causing material
injury to the Company; or
(ii) a reasonable determination by a majority vote of
directors at a meeting at which a quorum was present, that, in carrying out his
duties, the Executive has engaged in gross neglect or gross misconduct,
resulting in economic harm to the Company;
(iii) theft or embezzlement from the Company or any
subsidiary; or
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(iv) repeated violations of material Company policies, as
may be adopted by the Board from time to time, provided that the Company has
given the Executive written notice of each such violation and the Executive
fails to cure or is unable to cure each such violation within 10 days after
such respective notice.
(c) Termination Without Cause. If the Company terminates the
Executive without Cause:
(i) The Executive shall be entitled to a lump sum payment,
within 60 days following termination of his employment, of (A) two times his
then current Base Salary, plus (B) two times the average annual Incentive Bonus
paid to or earned by the Executive (whichever is larger) during the three
previous fiscal years during the Agreement Term or, if there have not been
three previous fiscal years during the Agreement Term, such fewer number of
fiscal years as shall have occurred during the Agreement Term;
(ii) The Executive and his eligible dependents shall be
entitled to continued participation, at no cost to the Executive or his
eligible dependents, in all medical, dental, vision and hospitalization
insurance coverage, until the earlier of 18 months following termination of
employment or the date on which he receives equivalent coverage and benefits
from a subsequent employer. The time period described in this Section 5(c)(ii)
shall run concurrently with the COBRA rights of the Executive and his eligible
dependents.
(iii) All outstanding unvested stock options granted to the
Executive prior to his termination of employment shall vest, become immediately
exercisable and shall expire, if not exercised, at the earlier of the third
anniversary of such termination of employment or the "expiration date" set
forth in the applicable stock option agreement.
(iv) All outstanding unvested restricted shares of the
Company's stock awarded to the Executive prior to his termination of employment
shall vest immediately upon the Executive's termination of employment.
1.
(d) Constructive Discharge A Constructive Discharge by the
Company shall be treated for all purposes of this Agreement as a termination by
the Company without Cause. If (x) the Executive provides written notice to the
Company of the occurrence of Good Reason (as defined below) within a reasonable
time after the Executive has knowledge of the circumstances constituting Good
Reason, which notice shall specifically identify the circumstances which the
Executive believes constitute Good Reason; (y) the Company fails to correct the
circumstances within 30 days after such notice; and (z) the Executive resigns
within ninety days after the date of delivery of the notice referred to in
clause (x) above, then the Executive shall be considered to have been subject
to a Constructive Discharge by the Company. For purposes of this Agreement,
"Good Reason" shall mean, without the Executive's express written consent (and
except in consequence of a prior termination of the Executive's employment),
the occurrence of any of the following circumstances:
(i) A reduction by the Company in the Executive's Base
Salary to an amount that is less than required under Section 3(a).
(ii) The failure of the Executive to be elected or reelected
to any of the positions described in Section 1 or his removal from any such
position.
(iii) A material diminution in the Executive's duties. In the
event of a change of control, the mere fact that the Company ceases to be
publicly traded or is a subsidiary of another corporation shall not constitute
Good Reason under this clause (iii).
(iv) A change in the Executive's reporting relationship such
that the Executive no longer reports directly to the Board.
(v) A breach by the Company of any of its material
obligations to the Executive under this Agreement.
The Executive shall be entitled to severance compensation under
sections 5 (c) and (d) based on the following formula set forth below. However,
in no event shall Executive's Base Salary severance compensation be less than
$400,000.00:
- Employed 5 years or more, then 100% of 5(c)(i).
- Employed 4 years or more, but less than 5 years, then
75% of 5(c)(i).
- Employed 3 years or more, but less than 4 years, then
50% of 5(c)(i).
- Employed 2 years or more, but less than 3 years then
25% of 5(c)(i).
- Employed 1 year or more, but less than 2 years, then
10% of 5(c)(i).
- Employed less than 1 year, only what is currently
due.
The terms of Sections 5 (c)(ii), (iii) and (iv) will not be
affected by length of employment of Executive. Employment with Company will be
defined as the period Executive has been employed by Company or its
subsidiaries.
(e) Termination Due to Employment Order It shall be grounds for
termination of this Agreement by the Company if the Executive is prohibited
from substantially fulfilling his obligations under this Agreement as a result
of an injunction or other order that (i) was obtained from a court of competent
jurisdiction by any former employer of the Executive, and (ii) has been or will
be in effect for a period of at least 60 days (an "Employment Order"). If the
Company terminates the Executive due to an Employment Order:
(i) The Executive shall be entitled to a lump sum payment,
within 60 days following termination of his employment, of (A) 0.5 times his
then current Base Salary, plus (B) 0.5 times the average annual Incentive Bonus
paid to or earned by the Executive (whichever is larger) during the three
previous fiscal years during the Agreement Term or, if there have not been
three previous fiscal years during the Agreement Term, such fewer number of
fiscal years as shall have occurred during the Agreement Term.
(ii) The Executive and his eligible dependents shall be
entitled to continued participation, at no cost to the Executive or his
eligible dependents, in all medical, dental, vision and hospitalization
insurance coverage, until the earlier of 18 months following termination of
employment or the date on which he receives equivalent coverage and benefits
from a subsequent employer. The time period described in this Section 5(e)(ii)
shall run concurrently with the COBRA rights of the Executive and his eligible
dependents.
(iii) One-eighth of all outstanding unvested stock options
granted to the Executive prior to his termination of employment shall vest,
become immediately exercisable and shall expire, if not exercised, at the
earlier of the third anniversary of such termination of employment or the
"expiration date" set forth in the applicable stock option agreement. The
remaining one-half of such stock options shall terminate. (iv) One-eighth of
all outstanding unvested restricted shares of the Company's stock awarded to
the Executive prior to his termination of employment shall vest immediately
upon the Executive's termination of employment. The remaining one-half of such
restricted shares shall be forfeited.
However, in no event shall Executive's Base Salary severance
compensation be less than $400,000.00 for any termination predicated on section
5(e).
(f) Non-renewal of Agreement by the Company. The normal
expiration of this Agreement at the end of the Agreement Term shall be treated
for all purposes of this Agreement as a termination by the Company without
Cause, if:
(i) The Company provides written notice to the Executive
of non-renewal of the Agreement Term in accordance with Section 1;
(ii) The Executive continues to serve the Company in
accordance with this Agreement for the remainder of the Agreement Term; and
(iii) The Executive's employment with the Company is
terminated after the expiration of this Agreement and prior to age 65 for any
reason other than disability.
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(g) No Mitigation; No Offset In the event of any termination of
employment under this Section 5, the Executive shall be under no obligation to
seek other employment and there shall be no offset against amounts due the
Executive under this Agreement on account of any remuneration received by the
Executive from any subsequent employer, except as provided in Sections 5(c)(ii)
or 5(e)(ii).
(h) Nature of Payments. Any amounts due under this Section 5 are
in the nature of severance payments considered to be reasonable by the Company
and are not in the nature of a penalty.
(i) Effect of Termination on Other Positions. If, on the date of
termination of employment with the Company, the Executive is a member of the
Board of Directors of the Company or any of the Company's direct subsidiaries,
(a direct subsidiary shall be defined as any subsidiary in which the Company
owns a majority interest) or holds any other position with the Company, or
other direct subsidiaries of the Company, the Executive shall be deemed to have
resigned from all such positions as of the date of his termination of
employment with the Company. Executive agrees to execute such documents and
take such other actions as the Company may request to reflect such resignation.
(j) Benefit Plans If, for any period during which the Executive
is entitled to continued benefits under this Agreement, the Company reasonably
determines that the Executive cannot participate in any benefit plan because he
is not actively performing services for the Company, then, in lieu of providing
benefits under any such plan, the Company shall provide comparable benefits or
the cash equivalent of the cost thereof (after taking into account all tax
consequences thereof to the Executive and the Executive's dependents as the
case may be) to the Executive and, if applicable, the Executive's dependents
through other arrangements.
(k) Return of Company Property. Upon termination of employment
with the Company for any reason, the Executive shall promptly return to the
Company any keys, credit cards, passes, confidential documents or material, or
other property belonging to the Company, and the Executive shall also return
all writings, files, records, correspondence, notebooks, notes and other
documents and things (including any copies thereof) containing confidential
information or relating to the business or proposed business of the Company or
its subsidiaries or affiliates or containing any trade secrets relating to the
Company or its subsidiaries or affiliates except any personal diaries,
calendars, rolodexes or personal notes or correspondence. For purposes of the
preceding sentence, the term "trade secrets" shall have the meaning ascribed to
it under the Uniform Trade Secrets Act. The Executive agrees to represent in
writing to the Company upon termination of employment that he has complied with
the foregoing provisions of this Section 5(k).
(l) Adverse Actions. Executive agrees that following his
termination of employment with the Company for any reason until the second
anniversary of such termination of employment without the prior written consent
of the Company the Executive shall not, in any manner, solicit, request, advise
or assist any other person or entity to (a) undertake any action that would be
reasonably likely to, or is intended to, result in a Change in Control (as
defined in the Change in Control Agreement), or (b) seek to control in any
material manner the Board.
(m) Mutual Nondisparagement. Each party agrees that, following
the Executive's termination of employment; such party will not make any public
statements, which materially disparage the other party. Notwithstanding the
foregoing, nothing in this Section 5(m) shall prohibit any person from making
truthful statements when required by order of a court or other governmental or
regulatory body having jurisdiction.
(n) Loans to Company. Company agrees that following the
termination of employment, any and all loans outstanding on the books of the
Company which are due to the Executive shall be reimbursed within 15 business
days.
(o) Personal Guarantees. Company agrees that following the
termination of employment, any and all personal guarantees provided by
Executive for the Company shall be removed or replaced by the Company within 15
business days.
6. CONFIDENTIAL INFORMATION. The Executive agrees that, during his employment
by the Company and at all times thereafter, he shall hold in a fiduciary
capacity for the benefit of the Company all secret or confidential
information, knowledge or data relating to the Company or any of its
subsidiaries or affiliates, and their respective businesses, which shall
have been obtained by the Executive during the Executive's employment by
the Company or during his consultation with the Company after his
termination of employment, and which shall not be or become public
knowledge (other than by acts by the Executive or representatives of the
Executive in violation of this Agreement). Except in the good faith
performance of his duties for the Company, the Executive shall not,
without the prior written consent of the Company or as may otherwise be
required by law or legal process, communicate or divulge any such
information, knowledge or data to anyone other than the Company and those
designated by it.
7. NONSOLICITATION. For the three year period following Executive's termination
of employment with the Company, the Executive shall not solicit any
individual who is, on the date of his termination of employment, employed
by the Company or its subsidiaries or affiliates to terminate or refrain
from renewing or extending such employment or to become employed by or
become a consultant to any other individual or entity other than the
Company or its subsidiaries or affiliates, and the Executive shall not
initiate discussion with any such employee for any such purpose or
authorize or knowingly cooperate with the taking of any such actions by
any other individual or entity on behalf of the Executive's employer.
8. EQUITABLE REMEDIES. The Executive acknowledges that the Company would be
irreparably injured by a violation of Section 5(l), (m), 6 or 7 and he
agrees that the Company, in addition to any other remedies available to
it for such breach or threatened breach, shall be entitled to a
preliminary injunction, temporary restraining order, or other equivalent
relief, restraining the Executive from any actual or threatened breach of
Section 5(l), (m), 6 or 7. If a bond is required to be posted in order
for the Company to secure an injunction or other equitable remedy, the
parties agree that said bond need not be more than a nominal sum.
9. ASSISTANCE WITH CLAIMS. Executive agrees that, consistent with the
Executive's business and personal affairs, during and after his
employment by the Company, he will assist the Company and its
subsidiaries and affiliates in the defense of any claims, or potential
claims that may be made or threatened to be made against any of them in
any action, suit or proceeding, whether civil, criminal, administrative
or investigative (a "Proceeding"), and will assist the Company and its
affiliates in the prosecution of any claims that may be made by the
Company or any subsidiary or affiliate in any Proceeding, to the extent
that such claims may relate to the Executive's employment or the period
of Executive's employment by the Company. Executive agrees, unless
precluded by law, to promptly inform the Company if Executive is asked to
participate (or otherwise become involved) in any Proceeding involving
such claims or potential claims. Executive also agrees, unless precluded
by law, to promptly inform the Company if Executive is asked to assist in
any investigation (whether governmental or private) of the Company or any
subsidiary or affiliate (or their actions), regardless of whether a
lawsuit has then been filed against the Company or any subsidiary or
affiliate with respect to such investigation The Company agrees to
reimburse Executive for all of Executive's reasonable out-of- pocket
expenses associated with such assistance, including travel expenses and
any attorneys' fees and shall pay a reasonable per diem fee for
Executive's services.
10.ASSIGNABILITY, BINDING NATURE This Agreement shall be binding upon and inure
to the benefit of the Parties and their respective successors, heirs (in
the case of the Executive) and assigns. No rights or obligations of the
Company under this Agreement may be assigned or transferred by the
Company except that such rights or obligations may be assigned or
transferred pursuant to a merger or consolidation in which the Company is
not the continuing entity, or the sale or liquidation of all or
substantially all of the assets of the Company, provided that the
assignee or transferee is the successor to all or substantially all of
the assets of the Company and such assignee or transferee assumes the
liabilities, obligations and duties of the Company, as contained in this
Agreement, either contractually or as a matter of law. The Company
further agrees that, in the event of a sale of assets or liquidation as
described in the preceding sentence, it shall take whatever action it
legally can in order to cause such assignee or transferee to expressly
assume the liabilities, obligations and duties of the Company hereunder.
No rights or obligations of the Executive under this Agreement may be
assigned or transferred by the Executive other than his rights to
compensation and benefits, which may be transferred only by will or
operation of law.
11.AMENDMENT. This Agreement, including any exhibit made a part hereof, may be
amended or canceled only by mutual agreement of the parties in writing
without the consent of any other person. So long as the Executive lives,
no person, other than the parties hereto, shall have any rights under or
interest in this Agreement or the subject matter hereof except that in
the event of the Executive's disability so as to render him incapable of
such action, his legal representative may be substituted for purposes of
such amendment.
12.APPLICABLE LAW. The provisions of this Agreement shall be construed in
accordance with the internal laws of the State of California, without
regard to the conflict of law provisions of any state. Any action to
enforce this Agreement shall be brought within the State of California,
in a court of competent jurisdiction.
13.SEVERABILITY. The invalidity or unenforceability of any provision of this
Agreement will not affect the validity or enforceability of any other
provision of this Agreement, and this Agreement will be construed as if
such invalid or unenforceable provision were omitted (but only to the
extent that such provision cannot be appropriately reformed or modified).
14.WAIVER OF BREACH No waiver by any party hereto of a breach of any provision
of this Agreement by any other party, or of compliance with any condition
or provision of this Agreement to be performed by such other party, will
operate or be construed as a waiver of any subsequent breach by such
other party of any similar or dissimilar provisions and conditions at the
same or any prior or subsequent time. The failure of any party hereto to
take any action by reason of such breach will not deprive such party of
the right to take action at any time while such breach continues.
15.COMPLIANCE WITH LAW. Notwithstanding any provision contained in this
Agreement to the contrary, in the event a regulatory authority commences
an appropriate proceeding, action or order challenging the payment to
Executive of any benefit hereunder, or in the event any such payment
hereunder is otherwise prohibited by law, such benefit payment shall be
suspended until such time as the challenge is fully and finally resolved
and the applicable regulatory authority does not object to the payments
or until such payments are otherwise permitted by law. In the event that
any challenge to the payments required by this Agreement is initiated by
a regulatory authority or other person, the Company shall notify
Executive of such challenge and shall promptly proceed to attempt to
resolve such challenge in a manner that enables the Company to make to
Executive all payments required hereunder.
16.NOTICES Notices and all other communications provided for in this Agreement
shall be in writing and shall be delivered personally or sent by
registered or certified mail, return receipt requested, postage prepaid,
or prepaid overnight courier to the parties at the addresses set forth
below (or such other addresses as shall be specified by the parties by
like notice):
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to the Company:
Datascension, Inc.
145 S. State College Blvd., Suite 350
Brea, CA 92821
Attention: General Counsel and Secretary
or to the Executive:
At the most recent address maintained by the Company in
its personnel records
Each party, by written notice furnished to the other party, may
modify the applicable delivery address, except that notice of change of address
shall be effective only upon receipt. Such notices, demands, claims and other
communications shall be deemed given in the case of delivery by overnight
service with guaranteed next day delivery, the next day or the day designated
for delivery; or in the case of certified or registered U.S. mail, five days
after deposit in the U.S. mail; provided, however, that in no event shall any
such communications be deemed to be given later than the date they are actually
received.
17.EXECUTIVE'S REPRESENTATIONS. Executive hereby represents and warrants to the
Company that (i) except to the extent previously disclosed to the Company
in writing, the execution delivery and performance of this Agreement by
Executive does not and shall not conflict with, breach, violate or cause
a default under any contract, agreement, instrument, order, judgment or
decree to which Executive is a party or by which he is bound; (ii) except
to the extent previously disclosed to the Company in writing, Executive
is not a party to or bound by an employment agreement, non-compete
agreement or confidentiality agreement with any other person or entity
which would interfere in any material respect with the performance of his
duties hereunder; and (iii) Executive shall not use any confidential
information or trade secrets in connection with the performance of his
duties hereunder.
18.COMPANY'S REPRESENTATIONS. The Company represents and warrants that it is
fully authorized and empowered to enter into this Agreement, that the
Agreement has been duly authorized by all necessary corporate action,
that the performance of its obligations under this Agreement will not
violate any agreement between it and any other person, firm or
organization or any applicable law or regulation and that this Agreement
is enforceable in accordance with its terms.
19.SURVIVORSHIP. Upon the expiration or other termination of this Agreement,
the respective rights and obligations of the parties hereto shall survive
such expiration or other termination to the extent necessary to carry out
the intentions of the parties under this Agreement.
20.ENTIRE AGREEMENT. Except as otherwise noted herein, this Agreement,
including the exhibits thereto, constitutes the entire agreement between
the parties concerning the subject matter hereof and supersedes all prior
and contemporaneous agreements and/or employment contracts, if any,
between the parties relating to the subject matter hereof.
21.COUNTERPARTS. This Agreement may be executed in separate counterparts, each
of which is deemed to be an original and all of which taken together
constitute one and the same agreement. A facsimile/photocopy of this
Agreement may be used in lieu of the original for all purposes.
IN WITNESS THEREOF, the Executive has hereunto set his hand, and the
Company has caused these presents to be executed in its name and on its behalf,
all as of the day and year first above written.
DATASCENSION, INC.
By:_____________________________
Name: Robert L. Sandelman
Title: Director
Dated: June 9, 2006
By:_____________________________
Name: Joseph A. Harmon
Title: Director
Dated: June 9, 2006
By:____________________________
Name: Dave Lieberman
Title: Director
Dated: June 9, 2006
DAVID S. KINCER
By:__________________________
David S. Kincer
Title: Executive
Dated: June 9, 2006