EXHIBIT 10 A) REVIEWED 11/13/1998
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: 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 shall
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
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
See paper submission and original Form-10 submission for detailed Table.
EXHIBIT 10 B) Xxxx Harwer Employment Agreement
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
anemployee 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
thetermination 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 three months so no portion of the lump 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 TECHNOLOGY
BRIDGE R&D
A California corporation
By: Xxxx X. Xxxxxxxx
Its: CFO & Director
"BRIDGE R&D"
