EMPLOYMENT AGREEMENT
for
XXXXXXX XXXXXXXX
THIS EMPLOYMENT AGREEMENT (the "Agreement") dated as of the
29th, day of August 2003 by and between XXxX.XXX., INC. a
Delaware corporation (the "Employee" or "Company") and
XXXXXXX XXXXXXXX, an individual (the "Employee").
WITNESSETH
WHEREAS, Employee is one of the founders of the
primary operating and wholly owned subsidiary of the
Company, such subsidiary, operating under the name of New
Mexico Software, Inc. a New Mexico corporation (NMS);
WHEREAS, since its inception of NMS, Employee has
served as President and Chief Executive Officer, as well
as serving on the Board of Directors;
WHEREAS, pursuant to a reverse stock acquisition,
NMS became a wholly owned subsidiary of the Company on
August 3, 1999;
WHEREAS, the Board of Directors of the Company (the
"Board") believes that the success of the Company is based
upon the know how and abilities of Employee and considers
it essential that Employee remain as an employee of the
Company, serving as President and Chief Executive Officer;
WHEREAS, Employee desires to provide his services
as President and Chief Executive Officer in connection
with the Company's business; and
WHEREAS, both parties desire to clarify and specify
the rights and obligations that each have with respect to
the other in connection with such employment.
NOW, THEREFORE, in consideration of this Agreement
and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by the
parties, the parties hereto do hereby agree as follows:
1. Employment. The Company hereby employs Employee
as its President and Chief Executive Officer and Employee
hereby accepts such employment and agrees to render his
services as an Employee of the Company for the term of
this Agreement (as specified in Section 6. hereof), all
subject to and on the terms and conditions herein set
forth.
2. Dam. Employee shall be employed in the business
of the Company and his duties and responsibilities shall
be consistent with the duties performed and
responsibilities undertaken by a President and Chief
Executive Officer of a company of its size of which stock
is publicly traded. As such, Employee shall have primary
responsibility for following strategic and financing
activities: mergers and acquisitions, capital raising
activities, shareholder relations, exploring and sourcing
new and related technologies, identify and pursue new
sources of revenue, and the hiring and termination of
executive employees. Employee's duties and
responsibilities shall be subject only to the direction
and authority of the Board. Unless Employee expressly
consents to the contrary, Employee shall hold the office
of President and Chief Executive Officer of NMS and the
Company, as well and along with any other whollyowned
subsidiary of either the Company or NMS.
3. Full-time Employment. Employee agrees to devote
his full-time services and efforts and attention to the
business and affairs of the Company. Notwithstanding the
foregoing, the Employee shall not be precluded from
engaging in other business activities, including, but not
limited to, capital raising activities or from serving on
the board of directors of other entities, whether it be a
subsidiary of the Company or otherwise and receiving
additional compensation therefore, provided that any such
other activities do not in a material way substantially
interfere with the Employee's responsibilities with the
Company.
4. Compensation; Bonuses.
A. In consideration for his services to be
performed under this Agreement, and as compensation
therefore, Employee shall receive, in addition to all of the
benefits provided in this Agreement, a base salary (the
"Base Salary") of Two Hundred Thousand Dollars ($200,000)
per annum.
B. Base Salary shall be paid quarterly in the
form of 50 shares of the Series A Convertible Preferred
stock of XXXX.xxx (the "Salary Shares"). Salary Shares will
be payable at the end of each fiscal quarter that Employee
remains an employee of Company. In order for Employee to
pay any applicable income taxes that may be due on the Base
Salary, Employee shall be allowed to convert up to 25
Salary Shares each quarter (the "Converted Shares"). Salary
Shares may be converted and sold on the open market subject
to the following conditions:
1. Employee shall promptly execute
necessary agreements required to allow him to participate
in the Convertible Preferred stock offering. No
Convertible Preferred shares shall be issued until all
necessary documentation is completed.
2. Salary Shares may be converted to
tradable stock per the Convertible Preferred stock
agreement with the exception that conversion shall only
happen during the Sale Window as defined below
3. The Converted Shares may be sold during a
thirty (30) day period that commences after 5 trading days
have elapsed following the filing with the Securities and
Exchange Commission of the quarterly or annual earnings of
XXXX.xxx (the "Sale Window").
4. The shares shall be sold in a manner
designed to minimize the impact on the open market share
price of XXXX.xxx.
5. All costs of conversion and issuance of
tradable stock to Employee shall be borne by Company. All
costs of the sale of the tradable shares shall be borne by
Employee.
B. Employee shall be entitled to a bonus from
time-to-time as may be determined in the sole discretion of
the Board of Directors.
C. Commencing as of January 1, 2003, and each
succeeding year of the term, the Base Salary shall be
reviewed by the Board of the Company, at which time the Base
Salary hereunder (and any other benefits) may be increased
(but not decreased) by the Board in its sole discretion.
5. Benefits.
A. Stock Options.
(i) Previous Options. Under a previous
employment agreement between the Company and the
Employee, the Employee was granted an option to
acquire 500,000 shares of common voting stock of
the Company, such Options having a five-year term,
and with an annual graduated step vesting over a
five (5) year period, at an exercise price equal to
$.74 (the "Previous Options"). By mutual consent of
the parties to this Agreement, the Previous Options
are hereby terminated.
(ii) Grant of Options. As partial compensation
under this Agreement, the Company shall grant to
Employee, contemporaneous with the approval of this
Agreement by the Company, the option to purchase up
to 500,000 shares of Common Stock under the
following conditions:
a) The options shall be granted
pursuant to the Company's
Stock Option Plan and each
capitalized term in this
subparagraph shall have the
meaning set forth in the Plan.
b) The Exercise Price of the
Option Shares shall be the
greater of $0.06 per share or
110% of the Fair Market Value
per share of Common Stock on
the Grant Date as provided in
the Plan.
c) The Expiration Date of the
options shall be December 31,
2007.
d) To the extent permitted by law,
the options shall be deemed
Incentive Options, as defined
in the Plan.
e) The options shall be
fully vested and
immediately exercisable
upon granting.
f) To the extent permitted in the
Plan, the options may be
exercised in a "cashless"
manner as provided in Section
2.1(a)(2) of the Plan,
including, without limitation,
the financing of the exercise
price as provided in Section
3.1 of the Plan to the maximum
extent permissible.
B. Health Insurance. The Company shall provide
group health, hospitalization, major medical insurance and
other similar benefits for Employee as the Company has
adopted or may hereafter adopt for the benefit of its
executives, officers and employees.
C. Vacation. During the term, Employee shall be
entitled to three (3) weeks of vacation annually.
D. Participation in Retirement and Employee
Benefit Plans; Designation in Management Bonus Plan.
Employee shall participate in any plan of the Company
related to vacation, sick leave, stock options, stock
purchase, stock grants, pension, thrift, profit sharing,
group life insurance, medical coverage, education, early
retirement or employee benefits that the Company has adopted
or may hereafter adopt for the benefit of its executives,
officers and/or employees. Further, in the event that the
Company establishes a management bonus plan, or similar
benefit, or bonus program for executive employees that
creates a class distinction between executive employees (and
other employees, if applicable) the Company agrees that
Employee shall always be designated as a member of the class
entitled to the greatest benefits. Similarly, during the
Term, Employee shall be entitled to receive other equity
based compensation, with respect to the Company and its
subsidiaries (whether now existing or hereafter created),
the terms and conditions of which shall be subject to the
sole discretion of the Company's Board.
E. Expenses. The Company shall reimburse
Employee for all reasonable out-of-pocket expenses incurred
by Employee in connection with the business of the Company
and in performance of his duties under this Agreement.
Reasonable out-of-pocket expenses shall include, without
limitation, expenses incurred for travel, hotels, meals,
telephone (including cellular telephone), facsimile,
computer and other like expenses. Such expenses shall be
promptly reimbursed upon Employee's presentation to the
Company of an itemized accounting of such expenses with
reasonable supporting data.
F. Additional Perquisites. Employee shall be
entitled to an allowance of up to $1,000 per month as an
automobile allowance for the purchase or lease of an
automobile during the Term. The actual amount of the
allowance shall be based on the actual lease and
maintenance costs.
6. Term of Employment; Notice of Non renewal. The
effective Term of this employment shall commence on, and
shall be retroactive to, January 15t, 2003 and run for a
period of three (3) years (the "Term"), unless terminated
prior thereto in accordance with Section 8 hereof. Unless
Employee and the Company renew or extend this Agreement in
writing prior to the end of the Term, upon terms and
conditions satisfactory to each of them, the Term of this
Agreement shall automatically be extended for one (1)
additional year, upon the same terms and conditions set
forth herein. The Company shall provide Employee with
written notice of the Company's intention not to renew or
extend this Agreement upon the terms and conditions at
least as favorable as those contained herein at least nine
(9) months prior to the end of the Term (the "Nonrenewal
Notice"). In the event that the Company shall fail to
render the Nonrenewal Notice at least nine (9) months prior
to the end of the Term, the Term of this Agreement shall
continue and accordingly, Employee shall be entitled to the
continuation of the Base Salary, bonus (at a rate no less
than that paid during the previous year), and all benefits
under Section 5 of this Agreement and otherwise (including
expense allowance and reimbursement), until such time as
the Nonrenewal Notice is given and thereafter, for a period
of nine (9) months from the date that the Employee actually
receives the Nonrenewal Notice.
7. Confidentiality.
A. Employee agrees and covenants that, at any
time during his employment with the Company or thereafter,
he will not, without first obtaining the written permission
of the Company, divulge to any person or entity, except as
necessary in accordance with his duties hereunder, use
(either himself or in connection with any business) any
Confidential Information (as hereafter defined) obtained
during the course of his employment under this Agreement,
unless such disclosure is expressly authorized by the
Company in writing, is pursuant to a court order or other
judicial process, required to be disclosed in connection
with litigation involving the Company, or affiliate thereof,
or in any reports or applications required by law to be
filed with any governmental agency.
B. The term "Confidential Information" shall
mean any material nonpublic information disclosed to
Employee or known, learned, created or observed by him as a
consequence of or through his employment by the Company, or
any Affiliate thereof, not generally known in the public
domain, about the business activities, services and
processes, including but not limited to information
concerning methods of doing business, marketing,
advertising, promotion, publicity, research, finances,
accounting, trade secrets, business plans, customer lists
and records and potential customers of the Company and its
subsidiaries, whether developed or acquired by the Company.
Confidential Information shall also include information
regarding third parties received under confidentiality
agreements by the Company or its subsidiaries. All
improvements, new products or new services derived from
such Confidential Information shall be the sole property of
the Company. Confidential Information shall not include any
information that becomes generally available to the public
otherwise than through disclosure by Employee. Upon
termination of his employment hereunder, Employee agrees to
return to Employer all property of Employer of which
Employee is in possession, including any copies thereof, as
well as all notebooks, and other data relating to records,
customers, investigations, or management studies or
inventions made by him.
C. Disclosure of Intellectual Property. Employee
will fully and promptly disclose to Employer all inventions,
discoveries, know-how or improvements, whether or not
patentable and including works of authorship (hereinafter
"Intellectual Property") which Employee may conceive or
make, alone or with others, during the term of this
Agreement whether or not during the working hours
(collectively "Term I/P")_ Employee also will promptly
disclose to Employer all Intellectual Property which
Employee may conceive or make, alone or with others, within
one (1) year after the Termination Date, which relates to,
or results from, or is suggested by: (1) activities of
Employer, its Affiliates, or licensees; (2) any proprietary
information of Employer; or (3) any work Employee may have
done for Employer or any Affiliate (collectively "Post-Term
IIP").
D. Assignment of All Intellectual Property. The
parties agree that All Post-Term I/P and any Term I/P which
meets the criteria for Post-Term I/P described in clauses
(1) through (3) of the last sentence of Section 7(C) above
is the sole and exclusive property of Employer. Employee
shall assign to Employer or Employer's nominee all right,
title and interest in and to any such Intellectual
Property, and Employee shall execute and deliver all
documents considered by Employer to be necessary or
desirable to secure patent, copyright or other legal
protection in any country and to vest title in Employer or
Employer's nominee. By entering into this Agreement,
Employer does not waive and expressly retains its shop
rights, works for hire, implied licenses and other rights
resulting from its employment of Employee.
8. Termination.
A. Cause. Notwithstanding the terms of this
Agreement, the Company, by action of a two-thirds (2/3)
vote of the Board of Directors, may issue written notice to
Employee, discharge Employee and terminate this Agreement
for cause ("Cause") in the event that (i) Employee shall
engage in an act of fraud, theft or embezzlement in
connection with his employment hereunder; (ii) Employee
engages in material gross misconduct that has a material
adverse effect on the Company; (iii) Employee engages in a
material act of dishonesty; or (iv) Employee shall be
convicted of a felony involving a high degree of moral
turpitude, whether or not related to the performance of his
duties hereunder. Notwithstanding the foregoing to the
contrary, prior to discharging Employee pursuant to clause
(ii) of the immediately preceding sentence, the Company
shall give Employee thirty (30) days' prior written notice
of any breach or failure and an opportunity to cure any
such breach or failure. Employee shall not, under any
circumstances, be deemed to have been terminated for Cause
unless and until there shall have been delivered to him a
copy of a resolution duly adopted by the affirmative vote
of not less than two-thirds (2/3) of the Board of Directors
(with Employee not being permitted to vote on this matter)
at a meeting of the Board of Directors held for that
purpose (after thirty (30) days notice to Employee and an
opportunity for Employee, together with counsel, to be
heard before the Board) finding that in the reasonable,
good faith opinion of the Board, Employee was guilty of
conduct
constituting cause and specifying the particulars thereof in
detail. If there is any dispute as to whether Employee's
employment has been terminated with or without Cause,
Employee shall continue to receive all Base Salary, bonus
(at a rate no less than that paid in respect of the previous
year), and benefits hereunder as if there was no
termination, unless and until it is finally determined that
such termination was for Cause, at which time all Base
Salary, bonus and benefits hereunder shall thereupon cease.
B. Incapacity or Disability. Should Employee
become incapacitated or disabled to the extent that, in the
reasonable, good faith opinion of the Board of Directors,
Employee is unable to and does not substantially perform his
duties for a period of six (6) consecutive months, the
Company may terminate this Agreement upon three (3) months'
prior notice, provided that Employee does not return to his
employment substantially in this full capacity during such
three (3) month period. In the event the Company does not
maintain disability insurance and this Agreement is
terminated as a result of Employee's incapacity or
disability, Employee shall be entitled to receive his Base
Salary and all benefits for a period of twenty-four (24)
months following termination of his employment due to
incapacity or disability.
C. Death. This Agreement shall terminate
immediately upon the death of Employee. In the event that
Company does not maintain life insurance in full force and
effect upon Employee's death, Employee's spouse, or any
alternative beneficiary, shall be entitled to receive
promptly a payment equal to twelve (12) months' Base Salary.
D. Termination Without Cause; Good Reason. If
employee is discharged and this Agreement is terminated
without Cause (Cause being defined as a reason for
termination set forth in Section 8(A) above) or by reason
other than as set forth in Section 8(B) or 8(C) hereof, or
if Employee resigns for Good Reason (as hereinafter defined)
Employee shall receive upon any such termination of, or
resignation by, Employee: (A) a lump sum payment equal to
the greater of (i) the Base Salary set forth in Section 4
for the remainder of the Term as such sums become due or
would become due, or (ii) twelve (12) months (such period,
to the extent it exceeds the Term, being hereinafter
sometimes referred to as the "Extended Period"); (B) a bonus
based on the greater of the bonus paid in the last full
calendar year or 25% of the then current Base Salary whether
or not there was a bonus in the prior calendar year; (C) all
benefits under Section 5 hereof for the remaining Term or
Extended Period, as applicable, and (D) any additional
amount that may be due pursuant to Section 8(E) below. In
addition, any and all options, warrants or other contractual
rights to acquire equity securities of the Company shall
automatically vest and become exercisable, subject only to
restrictions pursuant to applicable securities law. For
purposes of this Agreement, "Good Reason" shall mean (i) a
relocation of Employee, without his prior written consent,
outside of the Albuquerque area; or (ii) a failure to
maintain Employee as the President and Chief Executive
Officer of the Board of the Company or any subsidiary, or
(iii) the failure to be nominated by management of the
Company for election to the Board, or (iv) a material
diminution by the Company of Employee's responsibilities,
which change would cause Employee's position with the
Company or any subsidiary to become one of significantly
less responsibility, importance or scope from that
contemplated by Section 2 hereof, or (v) a willful failure
in bad faith to pay the Base Salary or bonus to Employee
when due or another material breach of this Agreement by the
Company that has a material adverse effect on Employee, or
(vi) a Change of Control of the Company (as defined below).
All amounts due Employee under this Section 8 shall be paid
to Employee without offset for any amounts earned by
Employee in any other employment or form any other source.
For purposes of this Agreement, a "Change of Control" of the
Company shall have occurred at such times as (a) beneficial
ownership of more than fifty percent (50%) of the voting
securities of the Company is transferred to a single entity
or combined voting block or "group" as contemplated by, or
required to comply with the provisions of, Rule 13d,
promulgated under the Securities Exchange Act of 1934, as
amended (or any successor rule thereto), or (b) a merger,
consolidation or sale of all or substantially all the assets
of the Company occurs.
E. Additional Amount. If in the opinion of tax
counsel selected by Employee and reasonably acceptable to
the Company, Employee has or will receive any compensation
or recognize any income (whether or not pursuant to this
Agreement or any plan or other arrangement of the Company)
which constitutes an "excess parachute payment" within the
meaning of Section 280G(b)(1) of the Internal Revenue Code
of 1986, as amended (the "Code") (or for which a tax is
otherwise payable under Section 4999 of the Code), then the
Company shall pay Employee an additional amount (the
"Additional Amount") equal to the sum of (i) all taxes
payable by Employee under Section 4999 of the Code with
respect to all such excess parachute payments and the
Additional Amount, plus (ii) all federal, state and local
income taxes payable by Employee with respect to the
Additional Amount. The amounts payable pursuant to this
Section 8(E) shall be paid by the Company to Employee within
30 days of the written request therefor made by Employee.
9. Noncompetition Covenants.
A. Covenant. Employee agrees that commencing as of the
date hereof and for a period of one (1) year following the
termination of his employment with the Company. Employee
will not, directly or indirectly: (a) engage in or become
interested (whether as owner, principal, agent, stockholder,
member, partner, trustee, joint venturer, lender or other
investor, director, officer, employee, consultant or through
the agency of any corporation, partnership, limited
liability company, association or agent or otherwise) in any
business or enterprise that shall then be in whole or in
substantial part competitive with the business conducted by
the Company (or any other Affiliate thereof) (the
"Competitors"). Notwithstanding the foregoing, ownership of
less than five percent (5%) of the outstanding securities of
any class of any entity listed on a national securities
exchange or traded in the over-the-counter market shall not
be considered a breach of this Section 9 if Employee (i) is
not a controlling person of or member of a group which
controls such persons and (ii) does not directly or
indirectly, own five percent (5%) or more of any class of
securities of such person, or (b) solicit the employment of
any person who is then an employee of the Company (or any
other subsidiary).
B. Exception. Employee may be relieved, in whole
or in part, from complying with Section 9(A) or 9(B) or
both, (the "Noncompetition Agreement") by: (1)
making written application to Employer for an exception to
the Noncompetition Obligation stating clearly Employee's
prospective employer, address, immediate supervisor, duties
and position with prospective or current employer; (2)
receiving a written exception from Employer; and (3)
providing Employer, upon its request, with a verification
that Employee's duties and position with Employee's new
employer remain as stated in the written application
previously submitted to Employer. Employee's obligations to
provide Employer with such verifications will continue for
all periods of Employee's employment by Employee's employer
during the term of the Noncompetition Obligation.
Employer's approval of such request shall not be
unreasonably withheld.
C. Enforceability. In the event a court of
competent jurisdiction determines that the scope of
restrictions or time or geographical limitations imposed are
too broad to be capable of enforcement, the limitations
shall be modified, to the least extent possible, so that the
provisions are enforceable.
10. Violation of Other Agreements. Employee represents
and warrants to the Company that he is legally able to enter
into this Agreement and accept employment with the Company
and that Employee is not prohibited by the terms of any
agreement, from entering into this Agreement; and the terms
hereof will not and do not violate or contravene the terms
of any agreement to which Employee is or may be a party, or
by which Employee may be bound.
11. Notices. Any and all notices, demands or requests
required or permitted to be given under this Agreement shall
be given in writing and sent by registered or certified U.S.
mail, return receipt requested, by hand or by overnight
courier, addressed to the parties hereto at their addresses
set forth above or such other address as they may from time-
to-time designate by written notice, given in accordance
with the terms of this Section, together with copies thereof
as follows:
In the case of the Company, with copy to:
XXXX.xxx.,
Inc. Xxxxx
000,
0000 Xxxxxx Xxxxxx Xx.
XX Xxxxxxxxxxx, Xxx
Xxxxxx 00000
In the case of the Employee, with copy to:
XXXXXXX XXXXXXXX
000 Xxxxxx Xxxxx
XX Xxxxxxxxxxx,
Xxx Xxxxxx
Notices given as provided in this Section shall be deemed
effective: (i) on the date hand delivered, (ii) on the
first business day following the sending thereof by
overnight courier, or (iii) on the seventh calendar day
(or, if it is not a business day, then the next succeeding
business day thereafter) after the depositing thereof into
the exclusive custody of the U. S. Postal Service.
12. Waivers. No waiver by any party of any default
with respect to any provision, condition or requirement
hereof shall be deemed to be a waiver of any other
provision, condition or requirement hereof; nor shall any
delay or omission of any party to exercise any right
hereunder in any manner impair the exercise of any such
right accruing to it thereafter.
13. Preservation of Intent. Should any provision of
this Agreement be determined by a court having jurisdiction
to be illegal or in conflict with any laws of any state or
jurisdiction or otherwise unenforceable, the Company and
Employee agree that such provision shall be modified to the
extent legally possible so that the intent of this Agreement
may be legally carried out and the provisions hereof may be
enforced to the maximum extent possible.
14. Indemnification. Subject to the succeeding
sentence, the Company shall indemnify, defend and hold
harmless Employee from and against all losses, claims
(whether actual or threatened), damages, liabilities,
judgments, fines, penalties, assessments and costs and
expenses incurred (including, without limitation, reasonable
attorneys' fees and disbursements, including legal fees and
disbursements incurred to enforce this Agreement) arising
prior to, on or after the date hereof from the performance
by Employee of his services pursuant to this Agreement or
Employee's prior service to the Company. Notwithstanding the
foregoing, Employee shall not be entitled to indemnification
pursuant to this Section 14 if a Court of competent
jurisdiction or an administrative body or agency determines
that, in connection with any matter giving rise to
indemnification, Employee acted in bad faith or dishonestly,
or committed an act for illegal personal gain, or committed
an act of wanton or willful misconduct or gross negligence
or that Employee acted in a manner beyond the authorized
scope of his duties to be performed pursuant to this
Agreement. The foregoing indemnification shall be in
addition to, and not in lieu of, the terms and provisions of
any indemnification agreement heretofore entered into by and
between the Company and Employee.
15. Dispute Resolution.
A. Generally. Subject to the provisions in Section
16(B) and (C), the purpose and intent of the parties is to
resolve their disputes expeditiously, and in a financially
reasonable manner; and further that the parties will meet
personally, and directly and in good faith to discuss how to
proceed with dispute resolution and with that purpose and
intent in mind. Any dispute between the parties to this
Agreement or any other controversy or claim arising out of
or relating to this Agreement or the breach thereof shall be
submitted to and resolved by binding arbitration in
Albuquerque, New Mexico. Such arbitration shall be conducted
upon the request of any party, before a single arbitrator,
selected by the parties or, failing agreement on a choice of
an arbitrator within thirty (30) days of service of written
demand for arbitration, by an arbitrator designated pursuant
to the Uniform Arbitration Act, NMSA 44-7-1 et set. (1978).
Once the arbitrator is selected, but as a condition
precedent to proceeding with arbitration, the parties shall
engage on a good-faith best efforts basis (i) in direct face-
to-face negotiations; and failing resolution by negotiation,
then (ii) mediation and, failing mediation then, (iii)
arbitration. Such arbitration shall be in accordance with
the laws of the State of New Mexico and pursuant to the
Uniform Arbitration Act, and subject to the Federal Rules of
Civil Procedure as the arbitrator may determine. The
arbitration shall be conducted within sixty (60) days of the
selection of the arbitrator and the arbitrator shall render
his or her decision within twenty (20) days after conclusion
of the arbitration. The prevailing party in the arbitration
shall be entitled as a part of the arbitration award to the
costs and expenses (including reasonable attorney fees) of
investigating, preparing and pursuing or defending the
arbitration claim as such costs and expenses are awarded by
the arbitrator. The duty to pursue the foregoing dispute
resolution provisions, shall survive the termination or
cancellation of this Agreement. Arbitration pursuant to the
foregoing shall be specifically enforceable under prevailing
arbitration laws of the State of New Mexico. The decision of
the arbitrator shall be final and binding upon the parties
and enforceable in a court of competent jurisdiction.
B. Injunctive Relief. Notwithstanding the foregoing,
the parties recognize that if there is a breach of either
Section 7 or 9 hereof, that the general dispute resolution
provisions of this Section 16(A) may not be sufficient and
that extent of the damages to the Company or an Affiliate
thereof, would be impossible to ascertain and that there is
and will be available to the Company no adequate remedy at
law in the event of such a breach. Consequently, Employee
agrees that in the event of a breach by Employee of Section
7, 9 or both of them, in addition to any other relief to
which the Company may be entitled, the Company shall be
entitled to enforce any or all of the Employee's defaulted
obligations hereunder, by injunctive or other equitable
relief ordered by any court of competent jurisdiction.
C. ERISA Rights. Notwithstanding the foregoing, if the
claim involves a right covered by the Employee Retirement
Income Security Act of 1974 ("ERISA") (e.g., severance pay
pursuant to Section 6, 8(D) and 8(E) above) then the rights
of the parties shall not be covered by either Section 16(A)
or (B) but rather shall be covered by ERISA and incorporated
herein by reference.
16. Entire Aqreement. This Agreement sets forth the entire
and only agreement or understanding between the parties
relating to the subject matter hereof and supersedes and
cancels all previous agreements, negotiations, letters of
intent, commitments and representations in respect thereof
between them, and no party shall be bound by any conditions,
definitions, warranties or representations with respect to
the subject matter of this Agreement except as provided in
this Agreement.
17. Inurement; Assiqnment. In the event of a sale of
the Company, or a division, subsidiary or affiliate
thereof, whether by way of stock sale, sale of assets,
merger or other business combination, as applicable, the
rights and obligations of the Company under this Agreement
shall, with Employee's prior written consent, inure to the
benefit of and shall be binding upon any successor of the
Company or to the business of the Company, subject to the
provisions hereof. The Company may, with Employee's
written consent, assign this Agreement to any person, firm
or corporation controlling, controlled by, or under common
control with the Company provided that, in the event of
any such assignment, the services to be rendered by the
Employee to such assignee shall be of the same nature and
professional status provided for in this Agreement. The
Company's obligations hereunder shall be unaffected by any
assignment. Neither this Agreement nor any rights or
obligations of Employee hereunder shall be transferable or
assignable by Employee.
18. Amendment. This Agreement may not be amended in any
respect except by an instrument in writing signed by the
parties hereto.
19. Headings_ The headings in this Agreement are
solely for convenience of reference and shall be given no
effect in the construction or interpretation of this
Agreement.
20. Counterparts,. This Agreement may be executed in
any number of counterparts, each of which shall be deemed
an original, but all of which when taken together shall
constitute one and the same instrument_
21. Governing Law Consent to Venue and Jurisdictlon.
This Agreement shall be governed by, construed and enforced
in accordance with the internal laws of the State of New
Mexico, without giving reference to principles of conflict
of laws. In the event of a dispute, each of the parties
hereto irrevocably consents to the exclusive venue and
Jurisdiction of the federal and state courts located within
the State of New Mexico, County of Bernalillo.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first above
written.
/s/ XXXXXXX XXXXXXXX
---------------------
XXXXXXX XXXXXXXX
XXxX.Xxx., Inc.
/s/ XXXX XXXXXXX
-----------------------------
By XXXX XXXXXXX, Representing
the Board of Directors
