Harold E. Nicholas - Page 5




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          phone calls to dealerships and manufacturers for replacement                
          parts and new equipment, calling prospective customers with                 
          respect to sales, and contacting customers regarding their                  
          maintenance needs.  This work was done from petitioner’s home               
          because Empire did not have adequate office space from which                
          petitioner could work.  Petitioner had no set hours, no                     
          supervision, and underwent no training during his time with                 
          Empire.                                                                     
               The record contains an employment agreement (agreement)                
          between petitioner and Empire that was never formally executed.             
          The agreement, however, generally set forth the intentions of               
          petitioner and Empire as to the nature of petitioner’s work.                
          Under the agreement petitioner was to receive a salary of $32,500           
          per annum, was to be reimbursed for all incidental business                 
          expenses, and was subject to dismissal without cause upon a 90-             
          day written notice.  There was also a trade secrets clause and a            
          covenant not to compete.  The covenant would prevent petitioner             
          from owning, operating, or otherwise working for a competitor of            
          Empire while providing services to Empire and for a period of 1             
          year after his separation from service with Empire.  This                   
          covenant was limited to a six-county region of New York,                    
          presumably the regions in which Empire operated.  The covenant              
          did not include the region petitioner maintained while providing            
          services to Troy.                                                           






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Last modified: May 25, 2011