AGREEMENT OF PURCHASE
AND SALE OF ASSETS
THIS AGREEMENT OF PURCHASE AND SALE OF ASSETS ("Agreement") is
entered
into this lst day of June, 1997 by and between ALLIED WEB, INC., a
California corporation ("SELLER") and BRIDGE R&D,INC., a
California
corporation ("BUYER"), with reference to the following facts:
RECITALS
A. SELLER is the owner of those certain assets ("Assets') set
forth on
Exhibit "A", attached hereto and incorporated herein by this
reference.
B. BUYER desires to purchase the Assets from SELLER, and SELLER
desires to
sell the Assets to BUYER.
NOW, THEREFORE, in consideration of the above-recited facts, for
other
good and valuable consideration and the mutual promises,
covenants,
representations, warranties, agreements, indemnities and
provisions
contained herein, the parties agree as follows:
ARTICLE I
PURCHASE AND SALE
1.1 SALE. SELLER agrees to sell and BUYER agrees to buy SELLER's
interests
in the Assets.
1.2 PURCHASE PRICE. The purchase price for the Assets("Purchase
Price")
shall be One Hundred & Ninety One Thousand Six Hundred and. Forty
Dollars
($191,640,00), payable in cash or cash equivalent at the
"Closing," as
hereinafter defined.
ARTICLE 2
CLOSING
2.1 CLOSING DATE. The closing ("Closing") shall take place at
10:00 a.m.
on June 19, 1997 (the "Closing Date") at such place as the parties
agree.
2.2 DELIVERIES BY SELLER. At the Close of Escrow, SELLER shall
deliver to
BUYER a Xxxx of Sale for the SELLER's interest in all of the
Assets,
substantially in the form attached hereto as Exhibit "B" and
incorporated
herein by this reference.
2.3 DELIVERIES BY BUYER. At the Close of Escrow, BUYER shall
deliver to
SELLER the following:
(a) The Purchase Price in cash or cash equivalent; and
(b) All other documents required to consummate the transactions
contemplated herein.
ARTICLE 3
REPRESENTATIONS AND WARRENTIES OF SELLER
SELLER hereby represents and warrants to BUYER as follows:
3.1 ORGANIZATION AND RELATED MATTERS. SELLER is a California
corporation,
duly organized, validly existing and in good standing under the
laws of
the State of California. SELLER has the corporate power and
authority to
carry on the business as now being conducted, and the corporate
power and
authority to execute and deliver this Agreement and consummate the
transactions contemplated hereby and has taken all actions
necessary to
secure all approvals required in connection therewith.
3.2 AUTHORITY. SELLER has fall power and the capacity and
authority to
execute and deliver this Agreement and to consummate the
transactions
contemplated hereby. This Agreement has been duly authorized,
executed
and delivered by, and is a valid and binding agreement of, SELLER,
enforceable in accordance with its terms; and no further action,
approvals
or consents are necessary on the part of the SELLER; nor is it
necessary
for SELLER to obtain any actions, approvals or consents from any
third
persons, governmental or other, to make this Agreement valid and
binding
upon and enforceable against SELLER in accordance with its terms,
or to
enable SELLER to perform this Agreement and the transactions
contemplated
hereby.
3.3 TITLE AND QUIET ENJOYMENT. SELLER has good and marketable
title to
all of the Assets. All the Assets are free and clear of
restrictions on
or conditions to transfer or assignment, and are free and clear of
all
defects of title, mortgages, liens, pledges, leases, charges,
encumbrances, equities, claims, conditional sale contracts,
easements,
rights of way, security interests, covenants, conditions, or
restrictions.
3.4 DISCLOSURE. There is no fact known to SELLER which has not
been
disclosed to BUYER in writing with respect to the business,
assets,
liabilities, financial condition or performance of SELLER, which
could
reasonably be anticipated to have a material adverse affect upon
the
existing or expected financial condition, operations, sales, gross
margins, operating results, assets, customer relations, employee
relations
or business prospects of SELLER.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYER
BUYER represents and warrants to the SELLER as follows:
4.1 ORGANIZATION AND RELATED MATTERS. BUYER is a California
corporation,
duty organized, validly existing and in good standing under the
laws of
the State of California. BUYER has the corporate power and
authority to
carry on the business as now being conducted, and the corporate
power and
authority to execute and deliver this Agreement. and consummate
the
transactions contemplated hereby and has taken all actions
necessary to
secure all approvals required in connection therewith.
4.2 DUE AUTHORIZATION. The execution and delivery of this
Agreement and
the consummation of the transactions required of BUYER under this
Agreement have been duly authorized by BUYER; no further
authorization on
the part of BUYER is necessary therefor, and this Agreement
represents a
valid agreement of BUYER which is binding on and enforceable
against BUYER
in accordance with its terms.
ARTICLE 5
OBLIGATIONS PENDING AND FOLLOWING THE CLOSING
5.1 CONSENTS/LITIGATION. Each party shall use its best efforts:
(a) to
obtain or cause to be obtained at the earliest practicable date
and prior
to the Closing Date all consents, approvals, permits and licenses
necessary to permit such party to consummate the transactions
contemplated
hereby which can reasonably be obtained by the Closing Date; and
(b) to
resist and obtain the dismissal of any litigation, investigation
or other
proceeding which questions the validity or legality or seeks to
hinder or
prevent the consummation of the transactions contemplated hereby.
5.2 NOTICE OF BREACH. Each party to this Agreement will
immediately give
written notice to the other parties of the occurrence of any
event, or the
failure of any event to occur, that results in a breach by it of
any
representation or warranty or a failure by it to comply with or
fulfill
any covenant, condition or agreement contained herein.
5.3 OTHER OFFERS. SELLER shall not solicit, consider, entertain,
accept
or take any other affirmative or favorable action with respect to
any
offer or proposal involving: (a) a sale of any of the Assets;(b)
any
merger, consolidation or other reorganization of SELLER with or
into any
other entity; or (c) any other transaction which would prevent or
hinder
the consummation of the transactions contemplated herein.
5.4 FURTHER ASSURANCES. Each party hereto shall execute and
deliver such
instruments and take such other actions as the other party or
parties, as
the case may be, may reasonably require in order to carry out the
intent
of this Agreement.
5.5 BEST EFFORTS. BUYER and SELLER will use their best efforts to
perform
or cause to be satisfied each covenant or condition contained
herein to be
performed or satisfied by it.
ARTICLE 6
NATURE AND SURVIVAL OF COVENANTS,
REPRESENTATION AND WARRANTIES
All of the covenants, representations and warranties set forth in
this
Agreement or in any exhibits, schedules or documents, certificates
or
other instruments delivered pursuant hereto shall, unless waived
in
writing by the party or parties for whose benefit such covenant,
representation or warranty was made, remain in full force and
effect
regardless of any investigation, verification or approval by any
party
hereto or by anyone on behalf of any party hereto, and all such
covenants,
representations and warranties shall survive the Closing.
ARTICLE 7
CONDITIONS PRECEDENT TO BUYER'S OBLIGATIONS
The obligations of BUYER to consummate the transactions
contemplated by
this Agreement shall be subject to the satisfaction, at or before
the
Closing, of each of the following conditions, each of which shall
be
deemed independent, waivable and waivable in writing in whole or
in part
at the option of the BUYER.
7.1 ACCURACY OF REPRESENTATINS AND WARRANTIES.
All representations and warranties made by SELLER, whether
contained
herein or in the schedules or the exhibits hereto, or in any
certificates
or other documents or instruments delivered by SELLER to BUYER
pursuant
hereto or in connection with the transactions contemplated hereby,
shall
be true and accurate in all material respects as of the date when
made and
on and as of the Closing Date as though made at that time.
7.2 PERFORMANCE. SELLER shall, in all material respects, have
performed,
satisfied and complied with all covenants, agreements, obligations
and
conditions and all actions required by this Agreement to be
performed
taken or complied with by any or all of them, on or before the
Closing
Date.
7.3 RECEIPT OF DOCUMENTS. At the Closing, BUYER shall have
received an
executed Xxxx of Sale from SELLER in the form attached hereto as
Exhibit
"B."
7.4 CONSENTS. All necessary consents and approvals from any
persons,
governmental or other, required to be obtained by the BUYER or
SELLER to
consummation of the transactions contemplated by this Agreement,
or
otherwise pertaining to the matters covered by it shall have been
obtained.
ARTICLE 8
CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS
The obligations of the SELLER to consummate the transactions
contemplated
by this Agreement shall be subject to the satisfaction, as of or
before
the Closing, of each of the following conditions, each of which
shall be
deemed independent severable and waivable in writing in whole or
in part
by SELLER:
8.1 REPRESENTATIONS AND WARRANTIES. The representations and
Warranties
antics of BUYER contained herein shall be true and accurate in all
material respects as of the date when made and at and as of the
Closing
Date as though such representations arid warranties were also made
at and
as of the Closing Date.
8.2 PERFORMANCE. BUYER shall have performed, satisfied and
complied with,
in all material respects, all agreements, obligations and
conditions
required by this Agreement to be performed or complied with by it
on prior
to the Closing.
ARTICLE 9
SELLER'S INDEMNIFICATION
9.1 INDEMNIFICATION. SELLER agrees to indemnify and hold BUYER
harmless
from and against any and all damages, liabilities, losses, costs
and
expenses, including attorneys' fees ("Damages") sustained by BUYER
as a
result of or arising out of: (a) a breach of any representation or
warranty by SELLER in this Agreement, or a breach or default in
the
performance of any of the covenants of SELLER in this
Agreement; or
(b) any pending or threatened claims or litigation. For purposes
of this
Section, any damages, liabilities, losses, costs and expenses,
including
attorneys' fees, sustained by SELLER after the Closing Date with
respect
to (a) or (b) above shall be deemed to be sustained by BUYER.
9.2 INDEMNIFICATION PROCEDURE. With respect to claims or actions
by third
parties, SELLER agrees that it shall be liable to reimburse BUYER
on
demand and on proof for any Damages suffered by BUYER, based upon
the
judgment of any court of competent jurisdiction or pursuant to a
bona fide
compromise or settlement of claims, demands, or actions, in
respect of any
Damages to which the foregoing indemnities relate. SELLER agrees
that it
shall be jointly and severally liable under the foregoing
indemnity as
soon as the amount of such Damages has reasonably been determined.
ARTICLE 10
EXPENSES AND BROKER'S FEES
10.1 EXPENSES. Except for expenses which are the subject of
indemnification pursuant to Article 10, above, each of the parties
shall
pay all costs and expenses incurred or to be incurred by it in
negotiating
and preparing this Agreement and in closing and carrying out the
transactions contemplated by this Agreement.
10.2 BROKER'S FEES. SELLER and BUYER each agree to indemnify and
hold
harmless the other against any loss, liability, damage, cost,
claim or
expense incurred by reason of any brokerage, commission or
finder's fee
alleged to be payable because of any act, omission or statement of
the
indemnifying party.
ARTICLE 11
NOTICES AND DELIVERIES
All notices, requests, demands or other communications hereunder
shall be
in writing and shall be deemed to have been duly given, and all
deliveries
shall be deemed to have been duly made, if delivered in person or
mailed,
certified, return receipt requested, postage prepaid:
If to SELLER: Allied Web, Inc.
0000x Xxxxxxx Xxxxxx, #X
Xxxxxx, Xxxxxxxxxx 00000
With a copy to: Xxxxx Xxxxxxxxx, Esq.
Xxxxxxxxx & Xxxxx
0000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
If to BUYER: Xxxx Harwer
Bridge R&D, Inc.
00000 Xxxxxx Xxxxxx, Xxxxx 0
Xxxxxxx, Xxxxxxxxxx 00000
With a copy to: Xxxxxxx, XxXxxxx & Xxxxxxxxxxx
0 Xxxx Xxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxx Grad
Any party hereto may from time to time, by written notice to the
other
parties, designate a different address, which shall be substituted
for the
one specified above for such party. If any notice or other
document is
sent by certified mail, return receipt requested, postage prepaid
as
aforementioned, the same shall be deemed served or delivered
seventy-two
(72) hours after mailing thereof.
ARTICLE 12
MISCELLANEOUS
12.1 COSTS AND ATTORNEY'S FEES.
(a) In any action, arbitration proceeding or other litigation
("Litigation") between the par-ties to declare the rights granted
in this
agreement or to enforce the provisions of this agreement, the
party
prevailing in the Litigation, whether at trial or on appeal, shall
be
entitled to its costs and expenses of suit, including, without
limitation,
a reasonable sum as and for attorneys' fees incurred in such
Litigation.
The term "prevailing party" as used in this paragraph shall not be
limited
to a prevailing plaintiff, but shall also include, without
limitation, any
party who is made a defendant in Litigation in which damages or
other
relief or both may be sought against such party and a final
'judgment on
dismissal or decree is entered in such Litigation in favor of such
party
defendant.
(b) Attorneys' fees incurred in enforcing any 'judgment
rendered in
connection with the interpretation or enforcement of this
agreement
("Judgment") are recoverable by the party in whose favor such
Judgment is
rendered, as a separate item of damages. The provisions of this
paragraph
are severable from the other provisions of this agreement and
shall
survive any such Judgment, and the provisions of this paragraph
shall not
be deemed merged into any such Judgment.
12.2 PARTIES IN INTEREST. Nothing in this Agreement, whether
express or
implied, is intended to confer any rights or remedies under or by
reason
of this Agreement on any person other than the parties to it, nor
is
anything in this Agreement intended to relieve or discharge the
obligation
or liability of any third person to any party to this Agreement,
nor
shal.1 any provision give any third persons any right of
subrogation or
action over against any party to Counterparts Agreement.
12.3 COUNTERPARTS. This Agreement may be executed in any number
of
counterparts, each of which shall be deemed to be an original and
all o-l-
which together shall be deemed to be one and the same instrument.
However,
this Agreement shall be ineffective for any purposes whatsoever
unless and
until executed by all parties hereto.
12.4 ASSIGNMENT. This Agreement and all of the provisions hereof
shall be
binding upon and inure to the benefit of the parties hereto and
their
respective successors and assigns.
12.5 ENTIRE AGREEMENT. This Agreement, including the exhibits and
other
documents referred to herein which form a part hereof, embodies
the
entire agreement and understanding of the parties hereto in
respect to the
subject matter contained herein. There are no restrictions,
promises,
warranties, covenants, or undertakings, other than those expressly
set
forth or referred to herein. This Agreement supersedes all prior
agreements and understandings between the parties with respect to
such
subject matter.
12.6 HEADINGS. The subject headings of the paragraphs and
subparagraphs
of this Agreement are included for purposes of convenience only
and shall
not affect the construction or interpretation of an of its
provisions.
12.7 PRONOUNS AND ARTICLES. All pronouns and articles and any
variations
thereof shall be deemed to refer to the masculine, feminine,
neuter,
singular or plural as the identification of the person or persons,
firm or
firms, corporation or corporations, partnership or partnerships
may
require.
12.8 MODIFICATION. This Agreement shall not be amended or
modified except
by a writing signed by all of the parties hereto.
12.9 GOVERNING LAW. This Agreement shall be governed by and
construed
under the internal laws of the State of California.
12.10 EXECUTION OF ADDITIONAL DOCUMENTS.
BUYER and SELLER each agree to execute and deliver such additional
documents as may be reasonably required to effectuate the
transactions
contemplated by this Agreement, including, without limitation, the
execution of a Fictitious Business Name Statement and such other
documents
as may be required to transfer the right to use the name
"DataStor" to
BUYER.
IN WITNESS WHEREOF, the parties to this Agreement have duly
executed
it on the day and year first above written.
"BUYER"
BRIDGE R&D, INC.
a California corporation
By: Xxxx Harwer
----------------------
Xxxx Harwer, President
"SELLER"
ALLIED WEB, INC.
a California corporation
By : Xxxxxx Xxxxxx
-------------------------
Its: Financial Controller
-------------------------
EXHIBIT A-1
BRIDGE R&D
FIXED ASSETS
Net Resi- Net 5 months Book
dual Book Depre. Value Econ. June
Value as of Useful 97's of
Date monthly 1995 1996 5/31/97 6/1/97 Life
Depre.
6/30/97
------ ----------- ---------- ------- -------- -------- -----
----
COMPUTER:
486/50M Multimedia w/monitor 1/3/95
1 1,500.00 84 17.86 214.29 214.29 89.29 982.14 55 17.86
964.29
Mac TLC & monitor 1/3/95
1 300.00 84 3.57 42.86 42.86 17.86 196.43 55 3.57
192.86
Used computer 1/3/95
3 975.00 84 11.61 139.29 139.29 58.04 638.39 55 11.61
626.79
Apple printer 4/6/95
1 646.50 84 7.70 92.36 92.36 38.48 55 423.30 7.70
415.61
386/40 computer 6/1/96
3 2,400.00 84 28.57 200.00 142.86 2,057.14 72 28.57
2,028.57
486/156 computer 6/1/96
2 2,000.00 84 23.81 166.67 119.05 1,714.29 72 23.81
1,690.48
Panasonic 2165 printer 8/1/96
1 255.00 84 3.04 15.18 15.18 224.64 74 3.04
221.61
Fujitsu DL3400 printer 8/1/96
3 2,385.00 84 28.39 141.96 141.96 2,101.07 74 28.39
2,072.68
Hewfett:Packard printer 8/1/96
4 7,960.00 84 94.76 473.81 473.81 7,012.38 74 94.76
6,917.62
Qume scripten 8/1/96
1 3,990.00 84 47.50 237.50 237.50 3,515.00 74 47.50
3,467.50
486/166 computer, 1.2MB 8/1/96
6 17,880.00 84 212.86 1,064.29 1,064.29 15,751.43 74 212.86
15,538.57
Pentium notebook 11/1/96
2 8,600.00 84 102.38 204.76 511.90 7,883.34 77 102.38
7,780.95
Laser Jet Printer 12/31/96
1 1,845.00 84 21.96 21.96 109.82 1,713.22 78 21.96
1,691.25
Acttx notebook computer 4/1/97
1 3,172.57 84 37.77 - 75.54 3,097.03 82 37.77
3,059.26
SUBTOTAL
53,909.07 641.77 488.79 3,014.91 3,095.57 47,309.81 641.77
46,668.03
FURNITURE & FIXTURE:
Brother fax machine 1/3/95
1 969.74 84 11.54 138.53 138.53 57.72 634.95 55 11.54
623.40
Conference table 1/3/95
1 300.00 84 3.57 42.86 42.86 17.86 196.43 55 3.57
192.86
Desk w/return,file & bookcase 1/3/95
1 860.00 84 10.24 122.86 122.86 51.19 563.10 55 10.24
552.86
Mac classic 1/3/95
2 400.00 84 4.76 57.14
57.14 23.81 261.90 55 4.76 257.14
Paper shreader 1/3/95
1 50.00 84 0.60 7.14 7.14 2.98 32.74 55 0.60 32.14
Canon fax machine 3/1/95
1 2,600.00 84 30.95 309.50
371.43 154.76 1,764.31 57 30.95 1,733.36
Phone system 5/1/95
1 13,150.32 84 156.55 1,252.40
1,878.62 782.76 9,236.55 59 156.55 9,079.99
Security system 5/1/95
1 2,405.00 84 28.63 229.04 343.57 143.15 1,689.23 59 28.63
1,660.60
Canon copier 7/1/95
1 3,898.68 84 46.41 278.46 556.95 232.06 2,831.20 61 46.41
2,784.79
Canon BJ-70 fax 8/1/96
1 799.00 84 9.51 47.56 47.56 703.88 74 9.51
694.37
IBM Selectric II 8/1/96
2 1,598.00 84 19.02 95.12 95.12 1,407.76 74 19.02 1,388.74
IBM Wheelwriter 15 8/1/96
1 1,270.00 84 15.12 75.60 75.60 1,118.81 74 15.12 1,103.69
AT&T fax machine
8/1/96 1 2,200.00 84 26.19 130.95 130.95 1,938.10 74 26.19
1,911.90
SUBTOTAL
30,500.74 363.10 2,437.93 3,868.33 1,815.52 22,378.95 363.11
22,015.85
VECHICLE:
1996 Mazda Truck 10/1/96
13,535.00 60 225.58 676.74 1,127.92 11,730.34 52 1225.58
11,504.76
GRANDTOTAL
97,944.81 1,230.46 2,926.72 7,559.98 6,039.00 81,419.10 1,230.46
80,188.64
========= ======== ======== ======== ======== ========= ========
=========
EXHIBIT A-2
BRIDGE R&D
INTANGIBLE ASSETS
Trademark $7,800.00
EXHIBIT B
BRIDGE R&D, INC.
BEGINNING INVENTORY ROLLBACK LIST
JUNE 30, 1997
BEG. INVENT. REPLACE BEG. INVENT. SLOW
ADJUSTED
AS 6/1/97 COST EXT. COST MOVING
BEG. INV.
QUANTITY PER UNIT AS 6/1/97 WRITEOFF
AS 6/1/97
------------ -------- ------------ -------- -
--------
22040 26 2.15 55.90 55.90
-
73020 22 1.70 37.40
37.40
73021 20 1.70 34.00 34.00
-
73023 33 1.70 56.10
56.10
73024 20 0.56 11.12 11.12
0.00
73025 300 0.51 153.00
153.00
73026 56 0.38 21.28
21.28
73028 486 0.41 199.26
199.26
80112 8 3.70 29.60 29.60
-
80113 2 5.50 11.00 11.00
-
80114 67 12.26 821.42 821.42
-
81102 193 6.00 1,158.00 1,158.00
-
81111 1 2.19 2.19 2.19
-
81114 9 9.30 83.70 83.70
-
81118 16 6.22 99.52 99.52
-
81130 5 10.00 50.00 50.00
-
81132 57 8.40 478.80
478.80
81508 10 0.40 4.00 4.00
-
82001 89 2.00 178.00 178.00
-
82002 116 2.00 232.00 232.00
-
82004 226 0.50 113.00 113.00
-
82006 100 0.51 51.00 51.00
-
82008 1,078 0.51 549.78
549.78
82012 404 0.50 202.00
202.00
82013 76 5.00 380.00
380.00
82014 17 8.00 136.00
136.00
84007 490 27.54 13,494.60
13,494.60
84008 3 70.38 211.14
211.14
89001 250 0.30 75.00
75.00
89011 264 1.83 483.38
483.38
89012 20 28.00 560.00
560.00
89013 62 21.50 1,333.00
1,333.00
89047 52 46.00 2,392.00
2,392.00
100561 6 23.00 138.00
138.00
104434 1,185 2.25 2,666.25
2,666.25
104437 1,153 0.75 864.75
864.75
202100 39 53.00 2,067.00
2,067.00
203335 177 53.00 9,381.00
9,381.00
205500 149 53.00 7,897.00
7,897.00
207555 65 82.00 5,330.00
5,330.00
209400 64 93.00 5,952.00
5,952.00
307100 48 82.00 3,936.00
3,936.00
309200 48 158.00 7,584.00
7,584.00
604222 3 19.38 58.14
58.14
CN3310CX 177 68.00 12,036.00
12,036.00
CQ3501 283 2.25 636.75
636.75
DS40001 0 1,400.00 -
-
DS5000-ITR 4 21.00 84.00
84.00
DS5000-FN 9 13.00 117.00
117.00
DS5000-PS 4 70.00 280.00
280.00
DS50001 6 2,000.00 12,000.00
12,000.00
EC12102 3 35.50 106.50
106.50
EC45015 34 29.00 986.00
986.00
E023105 91 51.10 4,650.10
4,650.10
ITR210X 91 17.45 1,587.95 1,587.95
-
M81310X 0 4.90 -
-
M84310X 159 5.00 795.00
795.00
M8S301X 23 24.96 574.08 574.08
-
M8S501X 13 22.61 293.93
293.93
M9F510X 10 5.97 59.70
59.70
M9H501X -1 4.75 (4.75)
(4.75)
M9S501X 7 21.00 147.00
147.00
MCL301X 20 5.70 114.00
114.00
MCX310X 70 4.50 315.00
315.00
MDD301X 5 9.00 45.00
45.00
MJZ310X 67 15.93 1,067.31
1,067.31
MLC301X 12 5.75 69.00
69.00
MSE310X 95 9.04 858.80
858.80
MV5310X 27 6.70 180.90
180.90
MV5510X 10 12.95 129.50
129.50
SBA-03258 40 8.00 320.00
320.00
UFG301X 58 2.25 130.50
130.50
UFP301X 163 2.25 366.75
366.75
107,517.35 5,096.48
102,420.87
Executive Employment Agreement
This Employment Agreement ("Agreement") is dated as of June
1, 1997,
between Bridge Technology, Inc., a Nevada corporation (the
"Company"), and
Xxxx X. Harwer (the "Executive").
WITNESSETH:
WHEREAS, Company is in the business of acquiring and
managing
technology companies.
WHEREAS, Executive has experience which qualifies him to
perform the
services which Company requires, and is not restricted under any
agreements, written or oral, from rendering the services to and
for the
benefit of Company as contemplated by this Agreement.
WHEREAS, Company and Executive (collectively, the
"Parties") desire
by this Agreement to provide the terms and conditions of the
employment
and the benefits to be provided by Company to Executive.
WHEREAS, the Company determined that the Executive is a
valued
employee of the Company and wishes to ensure his continued
employment with
the Company and document the terms of the Executive's employment
by the
Company.
WHEREAS, the Company also has determined that it is in the
best
interests of the Company and its shareholders to reinforce and
encourage
the continued attention and dedication of certain key members of
the
Company's management, including the Executive, to their assigned
duties
without distraction by uncertain circumstances arising from the
possibility of a change in control of the Company.
WHEREAS, the Company also has determined that it is in the
best
interest of the Company and its shareholders to minimize the
personal
considerations of certain key members of management in their
evaluation of
any potential change in control of the Company.
WHEREAS, the Company has determined that the loss of the
Executive's services would have a detrimental effect on the
implementation
of a change in control of the Company (in the event the Company
determines
to effect such a change in control of the Company).
NOW THEREFORE, for and in consideration of the mutual
promises,
covenants and agreements contained herein, the parties hereto
agree as
follows:
ARTICLE I
EMPLOYMENT
1.1 Employment. The Company employs the Executive and the
Executive hereby
accepts employment as the Chief Executive Officer of the Company
upon the
terms and conditions hereinafter set forth.
1.2 Term. The employment of the Executive by the Company under the
terms
and conditions of this Agreement will commence on the date hereof
and
continue for a period of five (5) years ("Employment Term").
Commencing on
the date of execution of this contract the Employment Term shall
be
extended on a daily basis such that the remaining term shall at
all times
be five (5) full years.
1.3 Executive Duties. As the Company's Chief Executive Officer,
the
Executive shall perform such duties as are requested by and shall
report
directly to the Company's Board of Directors. The Executive agrees
to
devote his full business time (with allowances for vacations and
sick
leave) and attention and best efforts to the affairs of the
Company and
its subsidiaries and affiliates during the Employment Term.
ARTICLE II
COMPENSATION AND BENEFITS
2.1 Annual Salary. During the Employment Term, Company shall pay
to
Executive a base salary of not less than Two Hundred Thousand
Dollars
($200,000.00) per annum during the first year of this Agreement
and shall
increase by ten percent (10%) of the amount paid in the prior year
on each
anniversary date thereafter. This base salary ("Base Salary")
shall be
deemed to accrue from day to day but it shall be payable in
substantially
equal semi-monthly installments in accordance with regular payroll
practices adopted by BRIDGE from time to time. The Company will
review
annually and may, in the discretion of the Board of Directors,
increase
such base salary in light of the Executive's performance,
inflation in
cost of living or other factors. The Company also shall pay to the
Executive an annual incentive compensation bonus to be calculated
and paid
as set forth in Exhibit A. For purposes of this Agreement, the
Executive's
annual base salary and annual incentive compensation bonus
collectively
shall be referred to herein as his "Annual Salary".
2.2 Common Stock in Lieu of Salary. Executive will have the right
of
receiving each year up to fifty percent (50%) of his total annual
compensation in the form of Company's common stock at a fair
market price.
The fair market price shall be the price of common stock on the
first day
of the last month of each calendar quarter, and Executive shall
have the
right to purchase such stock on that date of each calendar quarter
for
that quarter.
2.3 Benefits. In addition to compensation Executive shall be
eligible for
participation in and covered by any and all such performance,
bonus,
profit sharing, incentive, stock option, stock warrants and other
compensation plans and such medical, dental, disability, life, and
other
insurance plans and such other benefits generally available to
other
employees of the Company in similar employment positions, on the
same
terms as such employees, subject to meeting applicable eligibility
requirements (collectively referred to herein as the "Company
Benefit
Plans"). Specifically Company shall also furnish the following
benefits to
Executive:
(a) Fringe Benefits. Executive and his wife and dependents shall
receive health insurance, including both medical and dental
coverage
("Health Insurance") from Company in amounts to be determined by
the
Board. Executive shall have the option, however, of receiving, in
lieu of
the Health Insurance, an amount of cash ("Alternative Health
Insurance
Compensation") or stock at fair market price equal to Company's
cost of
providing the Health Insurance. Executive shall also be entitled
to
receive any other fringe benefits which are customarily afforded
to other
employees of BRIDGE, including, but not limited to, the right to
participate in any tax-qualified pension or profit-sharing plan
which may
be adopted and/or maintained by Company; provided, however,
Company is
under no obligation to adopt or maintain any such pension or
profit
sharing plans or other fringe benefits, now or at any time in the
future.
(b) Stock Options. Company hereby grants to Executive an option
("Stock
Option") to purchase: (a) up to One Hundred Thousand (100,000.00)
shares
of Company common stock ("BT Stock") and (b) up to that number of
shares
of BT Stock equal to the Alternative Health
Insurance Compensation, if any, divided by one-half, all at an
exercise
price of fifty cents ($.50) per share, which is the current fair
market
value of the BT Stock. The Stock Option shall terminate one (1)
year
after the termination of Executive's employment under this
Agreement.
Executive must represent that he is acquiring the BT Stock for
investment
purposes. Company agrees to take all steps necessary to assure
that the
issuance of the BT Stock upon the exercise of the Stock Option
shall be
treated as a transaction exempt from the registration requirements
under
applicable federal and state securities laws. In order to
effectuate this
Stock Option exercise, Executive must deliver a written notice to
Company
of his intention to exercise the Stock Option ten (10) days prior
to such
exercise accompanied by full payment of the Stock Option exercise
price.
The instruments evidencing the BT Stock shall carry a restrictive
legend
indicating that the BT Stock has not been registered under
applicable
federal and state securities laws and must not be transferred
without
compliance with said registration requirements or utilization of
an
available exemption or exemptions therefrom.
2.4 Vacation and Holidays. The Executive shall be entitled to an
annual
vacation leave of one (1) week for each four months worked at full
pay or
such greater vacation benefits as may be provided for by the
Company's
vacation policies applicable to senior executives of the Company.
Any
unused vacation time may be accumulated and carried over from one
year to
the next; provided, however, if any vacation time would otherwise
be
carried over for a second year, the Executive may, at his option,
elect
not to have such vacation time carried over but may instead
request the
Company to compensate the Executive for such vacation time by
paying the
Executive for such time at the Executive's then current base
salary rate.
Executive shall be entitled to receive payment in lieu of any
unused
vacation time. All vacation time must be taken at times
convenient to
Company, and must be taken in increments of no more than five (5)
business
days at any one (1) time unless prior approval is granted by the
Board.
Except to the extent that accumulated vacation time is paid off by
the
Company as described above, none of the accumulated vacation time
will be
lost for any reason. Executive shall be entitled to such holidays
as are
established by the Company for all employees. Up to 50% of
accumulated
vacation pay may be received in the form of Company's common stock
at a
fair market price. The fair market price shall be the price of
common
stock on the first day of the last month of each calendar quarter,
and
Executive shall have the right to purchase such stock on that date
of each
calendar quarter for that quarter.
2.5 Automobile Allowance. The Company shall provide the Executive
with a
representative automobile and pay all expenses to operate such
company
automobile, or an automobile allowance in the amount of Eight
Hundred
Dollars ($800) per month as reimbursement to the Executive of
costs and
expenses incurred by the Executive for the purchase or lease and
maintenance and operation of an automobile for use by the
Executive in the
performance of the Executive's duties hereunder. Such automobile
allowance
shall be paid in substantially equal semi-monthly installments.
Alternately Company may lease a vehicle for Executive's use in
performance
of his duties up to a total of $800.00 per month.
2.6 Reimbursement of Expenses. The Executive shall be entitled to
receive
prompt reimbursement of all reasonable expenses incurred by the
Executive
in performance of his duties hereunder, including without
limitation all
expenses of subscriptions to trade magazines and other
periodicals,
travel, entertainment and living expenses while away from home on
business
at the request of, or in the service of, the Company, provided
that such
expenses are incurred and accounted for in accordance with the
policies
and procedures established by the Company. All requests for
reimbursement
shall be accompanied by the supporting documentation as required
by the
accounting firm from time to time. Reimbursement will be made
within
fifteen (15) days of receipt of properly submitted expense form.
2.7 Benefits Payable with Disability. If Executive suffers a
"Continuing
Disability," as defined in Article IV below, Company shall
continue to pay
his Base Salary for up to a maximum of one hundred eighty (180)
days;
provided that this amount shall be reduced by the amount of any
disability
insurance payments received by Executive.
2.8. Life Insurance and Tax preparation. The Company shall
maintain for
the Executive during the term of this Agreement a life insurance
policy of
not less than One Million Dollars ($1,000,000). In addition, the
Company shall provide to the Executive a One Thousand Dollar
($1,000)
annual tax preparation allowance.
ARTICLE III
CONFIDENTIALITY AND NONDISCLOSURE
3.1 Confidentiality. During Executive's employment by the Company
or
thereafter at anytime, Executive will not disclose, directly or
indirectly, to any person or entity or use for Executive's own
benefit any
trade secrets or confidential information relating to the
Company's
business, operations, marketing data, business plans, strategies,
employees, negotiations and contracts with other companies, or any
other
subject matter pertaining to the business of the Company or any of
its
clients, customers, consultants, or licensees, known, learned, or
acquired
by Executive during the period of Executive's employment by the
Company
(collectively "Confidential Information"), except as may be
necessary in
the ordinary course of performing Executive's particular duties as
an
employee of the Company.
3.2 Proprietary Information. Executive will promptly disclose and
assign
to Company all ideas, processes, inventions and improvements
coming within
the scope of Company's business, conceived by him alone or with
others
during the term of his employment, and Executive will assist the
Company
in the development of such proprietary information. All such
ideas,
processes, inventions and improvements shall be the sole and
exclusive
property of the Company. In the event any such idea, process,
invention
or improvement shall be deemed by Company or Executive to be
patentable,
Executive shall assist Company in obtaining a patent or patents
thereon,
and he shall execute all documents and do all other things
necessary or
proper to obtain letters patent and to assign to and vest Company
with
full title thereto.
3.3 Return of Confidential Material. Executive shall promptly
deliver to
the Company on termination of Executive's employment with the
Company,
whether or not for Cause and whatever the reason, or at any time
the
Company may so request, all memoranda, notes, records, reports,
manuals,
drawings, blueprints, Confidential Information and any other
documents of
a confidential nature belonging to the Company, including all
copies of
such materials which Executive may then possess or have under
Executive's
control. Upon termination of Executive's employment by the
Company,
Executive shall not take any document, data, or other material of
any
nature containing or pertaining to the proprietary information of
the
Company.
3.4 Prohibition on Solicitation of Customers. During the term of
Executive's employment with the Company, and for a period of one
(1) year
thereafter, Executive shall not, directly or indirectly, either
for
Executive or for any other person or entity, solicit any person or
entity
to terminate such person's or entity's contractual and/or business
relationship with the Company, nor shall Executive interfere with
or
disrupt or attempt to interfere with or disrupt any such
relationship.
None of the foregoing shall be deemed a waiver of any and all
rights and
remedies the Company may have under applicable law.
3.5 Prohibition on Solicitation of Employees, Agents or
Independent
Contractors After Termination. During the term of Executive's
employment
with the Company and for a period of one (1) year following the
termination of Executive's employment with the Company, Executive
will not
solicit any of the employees, agents, or independent contractors
of the
Company to leave the employ of the Company for a competitive
company or
business. However, Executive may solicit any employee, agent or
independent contractor who voluntarily terminates his or her
employment
with the Company after a period of ninety (90) days have elapsed
since the
termination date of such employee, agent or independent
contractor. None
of the foregoing shall be deemed a waiver of any and all rights
and
remedies the Company may have under applicable law.
3.6 Right to Injunctive and Equitable Relief. Executive's
obligations not
to disclose or use Confidential Information and to refrain from
the
solicitations described in this Article III are of a special and
unique
character which gives them a peculiar value. The Company cannot be
reasonably or adequately compensated for damages in an action at
law in
the event Executive breaches such obligations. Therefore,
Executive
expressly agrees that the Company shall be entitled to injunctive
and
other equitable relief without bond or other security in the event
of such
breach in addition to any other rights or remedies which the
Company may
possess or be entitled to pursue. Furthermore, the obligations of
Executive and the rights and remedies of the Company under this
Article
III are cumulative and in addition to, and not in lieu of, any
obligations, rights, or remedies created by applicable law
relating to
misappropriation or theft of trade secrets or Confidential
Information.
3.7 Survival of Obligations. Executive agrees that the terms of
this
Article III shall survive the term of this Agreement and the
termination
of Executive's employment by the Company.
ARTICLE IV
TERMINATION
4.1 Definitions. For purposes of this Article IV, the following
definitions shall be applicable to the terms set forth below:
a) Cause. "Cause" shall mean only the following: (i) the
Executive's
death or Disability; (ii) the willful and continued failure by the
Executive to substantially perform his duties hereunder (other
than such
failure resulting from the Executive's incapacity due to physical
or
mental illness) after two consecutive demands for substantial
performance
are delivered by the Company within a 90 day period. The demands
must
specifically identify the manner in which the Company believes the
Executive has not substantially performed his or her duties; (iii)
conviction of a felony under the laws of the State of California;
or (iv)
habitual drunkenness or illegal drug use by Executive. For
purposes of
this Agreement, no act, or failure to act, on the Executive's part
shall
be considered "willful" unless done, or omitted to be done, by the
Executive in bad faith and without a reasonable belief that such
action or
omission by the Executive was in the best interest of the Company.
Notwithstanding anything to the contrary in the foregoing, no
termination
or other action shall be considered to be for Cause under this
Agreement
unless (x) the Executive first shall have received at least two
consecutive written notices within 90 day period setting forth the
reasons
for the Company's intention to terminate or take other action and
shall
have been provided an opportunity to appear twice, accompanied by
counsel,
and be heard before the Board of Directors; (y) after such
appearances
before the Board, the Board of Directors shall have duly adopted
by
unanimous vote of the Directors of the Company then in office, and
shall
have provided to the Executive a certified resolution finding that
in the
good faith opinion of such Directors the Executive was guilty of
conduct
constituting Cause, as set forth above, and specifying the
particulars
thereof in detail; and (z) the Executive shall have failed to cure
or
remedy the event constituting Cause within 30 days after the
Executive's
receipt of such certified resolution from the Board of Directors.
b) Continuing Disability. A determination of Disability shall
be
subject to the certification of a qualified medical doctor agreed
to by
the Company and the Executive or, in the event of the Executive's
incapacity to designate a doctor, the Executive's legal
representative. In
the absence of agreement between the Company and the Executive,
each party
shall nominate a qualified medical doctor and the two doctors so
nominated
shall select a third doctor, who shall make the determination as
to
Disability.
For the purposes of this Agreement, the term "Continuing
Disability" shall
mean generally that Executive has suffered an accident or illness
resulting in a physical or mental disease, impairment, incapacity
or other
condition as a result of which the Executive becomes unable to
continue to
properly perform all of his duties hereunder, (reasonable absences
because
of sickness for up to three (3) consecutive months are excepted),
and that
this condition can be expected to continue (or has continued) for
a period
of more than one hundred eighty (180) days in any period of twenty-
four
(24) consecutive months.
c) Good Reason. "Good Reason" shall mean each of the
following: (i)
the failure of the Company to vest the Executive, without the
Executive's
consent, with the powers and authority of the Executive's office
or
position of employment as contemplated herein, or any removal of
the
Executive from or failure to re-elect the Executive, without the
Executive's consent, to a position of employment consistent with
the
position and status of Executive as set forth herein; (ii) a
failure by
the Company to pay Executive's salary as contemplated herein (iii)
a
failure by the Company to promptly reimburse Executive as herein
stipulated (iv) a reduction by the Company, without the
Executive's
consent, in the Executive's annual base salary as it may exist
from time
to time; (v) a failure by the Company, without the Executive's
consent, to
continue any Company Benefit Plans in which the Executive
presently is
entitled to participate, as the same may be modified from time to
time;
(vi)a failure, without the Executive's consent, by the Company to
continue
the Executive as a participant in any Company Benefit Plans on at
least
the same basis as he presently participates in such plans; (vii)
the
requirement by the Company, without Executive's consent, that the
Executive be based anywhere other than within thirty (30) miles of
the
Executive's present office location, except for required travel on
the
Company's business to an extent substantially consistent with the
Executive's present business travel obligations; (viii) a failure
by the
Company to comply with any material provisions of this Agreement
which has
not been cured within thirty (30) days after notice of such
noncompliance
has been given by the Executive to the Company, or if such failure
is not
capable of being cured in such time, a cure shall not have been
diligently
initiated by the Company within such thirty-day period; or (ix) a
failure
by the Company to obtain from any successor, before the succession
takes
place, an agreement to assume and perform this Agreement;
provided,
however, that any of the foregoing actions shall not be considered
to be
Good Reason if such action is undertaken by the Company for Cause.
4.2 Continuing Disability. Company shall have the option of
terminating
this Agreement on the date that Executive suffers a Continuing
Disability
(as defined below). If the Board determines that Executive
suffers from a
Continuing Disability, it shall give Executive written notice of
this
determination, and the notice shall specify the Termination Date.
The determination that Executive has become disabled (and, if so,
whether
the disability is continuing) shall be made by: (i) the unanimous
agreement of a majority of the Board of Directors and Executive
(or the
personal representative of Executive); or, if they do not agree,
then by
(ii) the disability insurance carrier, if any disability insurance
is in
effect for Executive; or, if no insurance is in effect, then by
(iii) a
physician mutually selected by the Board and Executive (or the
personal
representative of Executive); or if they do not agree, then by
(iv) at
least two (2) out of three (3) physicians, one of whom shall be
selected
by the Board, the second of whom shall be selected by Executive
(or the
personal representative of Executive), and a third physician, who
shall be
selected by the first two.
4.3 Termination by Executive. Executive may terminate this
Agreement by
delivering a written notice to Company at least hundred and twenty
(120)
days in advance of the Original Expiration Date or the Renewal
Date, as
the case may be. Company may terminate this Agreement for the
reasons as
set forth in this Section IV. In each case, Executive's last day
of
employment shall be the "Termination Date."
4.4 Termination by Company. Executive's employment hereunder may
be
terminated by the Company immediately for Cause. Subject to the
other
provisions contained in this Agreement, the Company may terminate
this
Agreement for any reason other than Cause upon hundred and twenty
(120)
days' written notice to Executive. The effective date of
termination
("Effective Date") shall be considered to be hundred and twenty
(120) days
subsequent to the receipt of a written notice of termination by
Executive;
however, the Company may elect for Executive leave the Company
immediately.
4.5 Compensation Upon Termination. If Company terminates
Executive's
employment for any reason other than for cause as defined above,
then
Company shall pay Executive as per Article I Paragraph 1.2 and
continue to
provide the health insurance set forth in Section 2.3 (a) herein.
All
stock options granted, both exercised and not exercised prior to
termination, shall be deemed vested upon termination. Company
shall be
responsible for the cost of any registration of stock or removal
of
restrictions on all stock owned by Executive.
4.6 Severance Benefits Received Upon Termination. If (a) (i) at
any time
the Executive's employment is terminated by the Company for Cause,
or (ii)
at any time the Executive's employment is terminated by the
Executive
without Good Reason, the Company shall pay the Executive his base
salary
through the end of the 120 day Notice period during which such
termination
occurs (or at the Executive's election, the rate in effect on the
first
day of the month preceding the month in which the date of
termination
occurs) plus payment for any accrued vacation and other benefits.
Thereafter the Company shall have no further obligations under
this
Agreement to the Executive or his or her dependents, beneficiaries
or
estate; provided, however, that the Company will continue to honor
any
obligations that may have been accrued under then existing Company
Benefit
Plans or any other agreements or arrangements applicable to the
Executive.
(b) If (i) at any time the Executive's employment is terminated by
the
Company without Cause, or (ii) at any time the Executive's
employment is
terminated by the Executive for Good Reason, then the Company
shall:
(1) pay to the Executive within three business days following
the
date of termination his monthly base salary in effect on the date
of the
termination through the end of the month during which such
termination
occurs, plus all payments for any vacation earned but not taken,
plus all
accrued benefits; and
2) pay to the Executive as severance pay in a lump sum, in
cash,
within five business days following the date of termination, an
amount
equal to (i) the Executive's monthly base salary in effect on the
date of
termination, multiplied by (ii) fifty-nine (59) months; provided,
however,
that if the lump sum severance payment under this Section
4.5(b)(2),
either alone or together with other payments which the Executive
has the
right to receive from the Company, would constitute an "excess
parachute
payment" (as defined in Section 280G of the Internal Revenue Code
of 1986,
as amended (the "Code")), such lump sum severance payment shall be
paid
over threee months so no portion of thelump sum severance payment
under
this Article III will be subject to the excise tax imposed by
Section 4999
of the Code. The determination of any reduction in the lump sum
severance
payment under this Section 4.5(b)(2) pursuant to the foregoing
proviso
shall be made by independent auditors in good faith and such
determination
shall be conclusive and binding on the Executive and the Company;
(3) pay to the Executive a sum equal to (i) one-month of the
Executive's annual compensation bonus for the entirety of the year
in
which the termination occurs, multiplied by (ii) the number of
months or
portion thereof the Executive was employed by the Company during
the year
in which the termination occurs. The Company shall make such
incentive
compensation bonus payment to the Executive concurrently with its
payment
of bonuses to other executives of the Company; and
(4) maintain at the Company's expense, in full force and
effect, for
the Executive's continued benefit until the earlier of (i) two
years after
the date of termination or (ii) the Executive's commencement of
full time
employment with a new employer, all automobile, automobile
insurance,
life insurance, medical, health and accident, and disability
plans, stock
options, stock bonuses and programs or arrangements in which the
Executive
was entitled to participate immediately prior to the date of
termination,
provided that the Executive's continued participation is possible
under
the general terms and provisions of such plans and programs. In
the event
that the Executive's participation in any such plan or program is
barred,
the Company shall arrange to provide the Executive with benefits
substantially similar to those which the Executive was entitled to
receive
under such plans or programs. Subsequent health insurance benefits
will be
in accordance with COBRA.
4.7 No Obligation to Mitigate Damages; No Effect on Other
Contractual
Rights.
(a) The Executive shall not be required to mitigate damages
or the
amount of any payment provided for under this Agreement by seeking
other
employment or otherwise, nor shall the amount of any payment
provided for
under this Agreement be reduced by any compensation earned by the
Executive as the result of employment by another employer after
the date
of termination, or otherwise (except as provided in Section
4.5(b)(3)).
(b) The provisions of this Agreement, and any payment or
benefit
provided for hereunder, shall not reduce any amounts otherwise
payable, or
in any way diminish the Executive's existing rights, or rights
which would
accrue solely as a result of the passage of time, under any
Company
Benefit Plan, employment agreement or other contract, plan or
arrangement.
4.8 Death. This Agreement shall automatically terminate for cause
on the
date that Executive dies.
ARTICLE V
ASSUMPTION OF OBLIGATIONS BY SUCCESSOR TO COMPANY
5.1 Assumption of Obligations. The Company will require any
successor or
assign (whether direct or indirect, by purchase, merger,
consolidation or
otherwise) to all or substantially all of the business and/or
assets of
the Company, by agreement in form and substance satisfactory to
the
Executive, expressly, absolutely and unconditionally to 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
or
assignment had taken place. Any failure of the Company to obtain
such
agreement prior to the effectiveness of any such succession or
assignment
shall constitute a material breach of this Agreement. As used in
this
Agreement, "Company" shall mean the Company as herein before
defined and
any successor or assign to its business and/or assets as aforesaid
which
executes and delivers the agreement provided or in this Article V
or which
otherwise becomes bound by all the terms and provisions of this
Agreement
by operation of law. If at any time during the term of this
Agreement the
Executive is employed by any corporation a majority of the voting
securities of which is then owned by the Company, "Company" as
used in
this Agreement shall in addition include such employer. In such
event, the
Company agrees that it shall pay or shall cause such employer to
pay any
amounts owed to the Executive pursuant to this Agreement.
5.2 Beneficial Interests. This Agreement shall inure to the
benefit of and
be enforceable by the Executive's personal and legal
representatives,
executors, administrators, successors, heirs, distributees,
devisees and
legatees. If the Executive should die while any amounts are still
payable
to him or her hereunder, all such amounts, unless otherwise
provided
herein, shall be paid in accordance with the terms of this
Agreement to
the Executive's devisee, legatee, or other designee or, if there
be no
such designee, to the Executive's estate.
ARTICLE VI
GENERAL PROVISIONS
6.1 Notice. For purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing
and shall
be deemed to have been duly given when delivered or mailed by
United States registered mail, return receipt requested, postage
prepaid,
as follows:
If to the Company: Bridge Technology, Inc.
0000 Xxxx Xxxxxxxx
Xxxxx Xxx, XX. 00000
Attn: Xxxx Xxxxxxxx,
Secretary
If to the Executive: Xxxx X. Harwer
00 Xxxxxxx
Xxxxxx Xxxxx Xxxxxxxxx
XX. 00000
or such other address as either party may have furnished to the
other in
writing in accordance herewith, except that notices of change of
address
shall be effective only upon receipt.
6.2 No Waivers. No provision of this Agreement may be modified,
waived or
discharged unless such waiver, modification or discharge is agreed
to in
writing signed by the Executive and the Company. 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.
6.3 Governing Law. This Agreement shall be governed by and
construed in
accordance with the laws of the State of California.
6.4 Severability or Partial Invalidity. The invalidity or
unenforceability
of any provisions of this Agreement shall not affect the validity
or
enforceability of any other provision of this Agreement, which
shall
remain in full force and effect.
6.5 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but
all of
which together will constitute one and the same instrument.
6.6 Legal Fees and Expenses. Should any party institute any action
or
proceeding to enforce this Agreement or any provision hereof, or
for
damages by reason of any alleged breach of this Agreement or of
any
provision hereof, or for a declaration of rights hereunder, the
prevailing
party in any such action or proceeding shall be entitled to
receive from
the other party all costs and expenses, including reasonable
attorneys'
fees, incurred by the prevailing party in connection with such
action or
proceeding.
6.7 Entire Agreement. This Agreement constitutes the entire
agreement of
the parties and supersedes all prior written or oral and all
contemporaneous oral agreements, understandings, and negotiations
between
the parties with respect to the subject matter hereof. This
Agreement is
intended by the parties as the final expression of their agreement
with
respect to such terms as are included in this Agreement and may
not be
contradicted by evidence of any prior or contemporaneous
agreement. The
parties further intend that this Agreement constitutes the
complete and
exclusive statement of its terms and that no extrinsic evidence
may be
introduced in any judicial proceeding involving this Agreement.
6.8 Assignment. Subject to the provisions of Article V hereof,
this
Agreement and the rights, duties, and obligations hereunder may
not
assigned or delegated by any party without the prior written
consent of
the other party. Notwithstanding the foregoing provisions of this
Section
6.8, the Company may assign or delegate its rights, duties, and
obligations hereunder to any person or entity which succeeds to
all or
substantially all of the business of the Company through merger,
consolidation, reorganization, or other business combination or by
acquisition of all or substantially all of the assets of the
Company;
provided that such person assumes the Company's obligations under
this
Agreement in accordance with Section 5.1.
6.9 Arbitration. Any controversy, dispute, claim or other matter
in
question arising out of or relating to this Agreement shall be
settled, at
the request of either party, by binding arbitration in accordance
with the
Commercial Arbitration Rules of the American Arbitration
Association
("AAA"), and judgement upon the award rendered by the arbitrators
may be
entered in any court having jurisdiction thereof, subject to the
following
terms, conditions and exceptions:
(a) Notice of the demand for arbitration shall be filed in
writing
with the other party and with the AAA. There shall be a panel of
three (3)
arbitrators whose selection shall be made in accordance with the
procedures then existing for the selection of such arbitrators by
the AAA.
(b) Reasonable discovery shall be allowed in arbitration.
(c) The costs and fees of the arbitration shall be
allocated
by the arbitrators.
(Signature Page to the Employment Agreement)
IN WITNESS WHEREOF, the parties have executed this
Agreement as
of the date first above written.
XXXX X. HARWER
"HARWER"
BRIDGE TECHNOLOGY, INC.,
A Nevada corporation
By: Xxxx X. Xxxxxxxx
Its: President, CEO & Chairman
"BRIDGE TECHNOLOGY"
BRIDGE R&D
A California corporation
By: Xxxx X. Xxxxxxxx
Its: CFO & Director
"BRIDGE R&D"
