EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into
effective as of June 22, 1999 (the "Effective Date"), by and between Dynatec
International, Inc., a Utah corporation (the "Company"), and Xxxxx X. Xxxxxxx,
an individual (the "Employee"). The Company and the Employee are sometimes
referred to herein, collectively, as the "parties" and, individually, as a
"party."
RECITAL
The Company desires to establish its rights to the services of the
Employee, presently employed by the Company in the capacity of Senior Vice
President Sales, on the terms and conditions and subject to the rights of
termination hereinafter set forth, and the Employee is willing to accept such
employment on such terms and conditions.
AGREEMENT
NOW THEREFORE, in consideration of the mutual agreements, promises and
covenants described herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Employee and the
Company have agreed and do hereby agree as follows:
1. Employment. The Company hereby employs the Employee and the Employee hereby
accepts such employment, upon the terms and conditions set forth herein. The
Company shall furnish the Employee with an office and secretarial and other
facilities and services at the Company's headquarters in Salt Lake City, Utah as
are reasonably necessary and appropriate for the performance of the Employee's
duties and responsibilities hereunder and consistent with the Employee's
position as Senior Vice President Sales of the Company.
2. Duties. The Company does hereby employ and engage the Employee as Senior Vice
President Sales of the Company and each of its subsidiaries and divisions, or
such other title as the Company's Chief Executive Officer shall specify from
time to time, and the Employee does hereby accept and agree to such engagement
and employment. The Employee's duties shall be such executive and managerial
duties and responsibilities as the Chief Executive Officer shall specify from
time to time and as provided in the Bylaws of the Company, as the same may be
amended from time to time. The Employee shall diligently and faithfully execute
and perform such duties and responsibilities, subject to the general supervision
and control of the Company's Chief Executive Officer. The Employee shall be
responsible and report to the Company's Chief Executive Officer. The Company's
Chief Executive Officer shall determine the Employee's duties and
responsibilities and may assign or reassign the Employee to such executive and
managerial duties, responsibilities or positions as such officer deems in the
Company's best interest. The Employee shall devote his full-time attention,
energy and skill during normal business hours to the business and affairs of the
Company and shall not, during the Employment Term (as that term is defined
below), be actively engaged in any other business activity, except with the
prior written consent of the Company's Board of Directors; provided, however,
that in any event any such other business activity will not: (a) adversely
affect or materially interfere with the performance of the Employee's duties and
responsibilities hereunder, (b) involve a conflict of interest with the Company
or (c) involve activities competitive with the business of the Company.
Notwithstanding the foregoing, the Employee shall be permitted to (i) engage in
charitable and community affairs and (ii) make investments of any character in
any business not in competition with the Company or any of its subsidiaries or
divisions and manage such investment (but not be involved in the day-to-day
operations of any such business), provided, however, no such business shall
place the Employee in a conflict of interest with the Company or interfere with
the performance of the Employee's duties and responsibilities under this
Agreement.
3. Compensation and Benefits. As the entire consideration for the services to be
performed by the Employee hereunder and the duties and responsibilities assigned
to and the obligations incurred by the Employee hereunder, and subject to the
terms and conditions hereof, during the Employment Term, the Employee shall be
entitled to the following:
3.1. Base Salary. Subject to Section 4 below, during the Employment Term the
Company shall pay the Employee an annual base salary of One Hundred Forty
Thousand Dollars ($140,000.00). The Company will pay the Employee said base
salary in equal semi-monthly installments or at more frequent intervals in
accordance with the Company's customary policies and pay schedule.
3.2. Additional Benefits. The Employee shall be entitled to participate, to the
extent of his eligibility, in any employee benefit plans made generally
available by the Company to its other senior management personnel during the
Employment Term, including, without limitation, such bonus plans, pension or
profit sharing plans, incentive stock option plans, retirement plans, and
health, life, hospitalization, dental, disability or other insurance plans or
programs as may be in effect from time to time, subject, however, to any
restrictions specified in such plans and to the discretion of the Company's
Board of Directors in making any specific grant under such plans. Such
participation shall be in accordance with the terms established from time to
time by the Company for individual participation in any such plans or programs.
3.3. Vacation, Sick Leave and Holidays. The Employee shall be entitled to such
amounts of paid vacation and other leave, up to three (3) weeks of paid vacation
per each twelve (12) month period of employment, as from time to time may be
generally allowed to the Company's senior management personnel, with such
vacation to be scheduled and taken in accordance with the Company's standard
vacation policies applicable to such personnel. In addition, the Employee shall
be entitled to such sick leave and holidays at full pay in accordance with the
Company's policies established and in effect from time to time for its senior
management personnel.
-2-
3.4. Vehicle. The Employee shall be entitled to the use of one (1) Company owned
or leased vehicle and full reimbursement for all expenses associated with the
operation and maintenance of such vehicle, which vehicle shall be comparable to
the vehicles of the other senior management personnel and executives of the
Company. The Company will reimburse the Employee for such expenses in accordance
with the Company's normal accounting procedures upon the presentation of
vouchers and documentation for such operational and maintenance expenses.
3.5. Bonus. The Company's Board of Directors may at any time, but shall have no
obligation to do so, pay the Employee such bonuses and/or other supplemental or
special payments and benefits as the Board of Directors determines in its sole
and absolute discretion.
3.6. Stock Options. The Employee shall be granted options to purchase shares of
the Company's Common Stock in an amount and with terms and conditions to be
determined by the Board of Directors. All such options will be granted pursuant
to and governed by any executive stock option plan then in effect (or such other
similar plan as determined by the Board of Directors) and shall be evidenced by
a separate option grant agreement with the Employee.
3.7. No Other Benefits or Compensation. The Employee, as a result of his
employment by the Company as provided by this Agreement, shall only be entitled
to the compensation and benefits provided for in this Agreement, subject to the
terms as set forth herein, and to no other benefits or compensation, to the
extent that additional future benefits or compensation is provided to all other
senior officers or executives of the Company
3.8. Business Expenses. The Company shall promptly reimburse the Employee for
all reasonable out-of-pocket business expenses incurred in performing the
Employee's duties and responsibilities hereunder in accordance with the
Company's policies with respect thereto in effect from time to time, provided
that the Employee promptly furnishes to the Company adequate records and other
documentary evidence required by all federal and state statutes, rules and
regulations issued by the appropriate taxing authorities for the substantiation
of each such business expense as a deduction on the federal and state income tax
returns of the Company.
4.
-3-
4. Term and Termination.
4.1. Employment Term. Subject to earlier termination as provided hereinbelow
(and except for the provisions of this Agreement that, by their terms, continue
in force beyond the termination thereof), the term of this Agreement shall be
for a four (4) year period, commencing on the Effective Date and ending on June
22, 2003 (the "Employment Term"). Upon mutual written consent of the parties,
this Agreement may be extended or renewed for such successive term or terms
beyond the Employment Term as the parties agree. If the Employment Term is so
extended or renewed as provided in this Section 4.1, the term "Employment Term"
will be interpreted herein to include such successive extension or renewal term
or terms.
4.2. Voluntary Termination. The Company shall be able to voluntarily terminate
this Agreement without cause (as that term is defined below) only prior to the
expiration of the Employment Term as provided by Section 4.1 above. The Employee
may voluntarily terminate this Agreement and his employment hereunder at any
time during the Employment Term, in which event the conditions of Section 4.5.1
below shall apply.
4.3. Termination for Cause. This Agreement, and the Employee's employment
hereunder, shall automatically terminate upon the Employee's death and is
otherwise immediately terminable by the Company for cause at anytime (except as
otherwise set forth hereinbelow) upon written notice from the Company to the
Employee. As used in this Agreement, "cause" shall mean the following:
4.3.1. refusal by the Employee to implement or adhere to lawful policies
or directives of the Board of Directors;
4.3.2. habitual neglect of or deliberate or intentional refusal by the
Employee to perform his duties, responsibilities or obligations under this
Agreement;
4.3.3. the Employee's conviction of or entrance of a plea of nolo contendere to
(a) a felony, (b) any crime punishable by incarceration for a period of one (1)
year or longer, or (c) other conduct of a criminal nature that may have a
material adverse impact on the Company's reputation and standing in the
community;
4.3.4. breach of fiduciary duty, breach of the Employee's common law duty of
loyalty, deliberate breach of the Company's rules resulting in loss or damage to
the Company, or unauthorized disclosure of any of the Company's trade secrets,
confidential information or Proprietary Information (as that term is defined
below) by the Employee; or
4.3.5. theft, embezzlement or other criminal misappropriation of funds by the
Employee from the Company; provided, however, that cause pursuant to Sections
-4-
4.3.1 and 4.3.2 above shall not be deemed to exist unless the Company shall have
first given the Employee a written notice thereof specifying in reasonable
detail the facts and circumstances alleged to constitute "cause," and thirty
(30) days after such notice such conduct has, or such circumstances have, as the
case may be, not entirely ceased or been entirely remedied. The determination of
whether the Employee's actions justify termination for cause and the date such
termination shall be effective shall be made by the Company's Board of Directors
or management, in good faith, in their sole and absolute discretion. If the
Company terminates the Employee's employment pursuant to this Section 4.3 but it
is ultimately determined that the Company lacked "cause," the provisions of
Section 4.5.2 below shall apply.
4.4 Termination for Disability. The Company's Board of Directors may
terminate this Agreement and the Employee's employment hereunder, upon written
notice to the Employee and certification of the Employee's "disability" (as that
term is defined below) by a Qualified Physician (as that term is defined below)
or a panel of Qualified Physicians, as set forth below, if the Employee becomes
disabled for either (a) one hundred-twenty (120) continuous days or (b) one
hundred-eighty (180) days during any continuous twenty-four (24) month period
during the Employment Term. The Company's Board of Directors shall initially
determine that the Employee's disability will prevent the Employee from
substantially performing the Employee's duties, responsibilities or obligations
hereunder. As used in this Agreement, "disability" shall be defined as (i) the
Employee's inability, by reason of physical or mental illness or other cause, to
substantially perform the Employee's duties, responsibilities or obligations
hereunder, or (ii) disability as defined in any disability insurance policy of
the Company in effect at the time in question. The Employee's disability, as
initially determined by the Board of Directors, shall then be certified by a
Qualified Physician or, if requested by the Employee, by a panel of three (3)
Qualified Physicians. If the Employee requests such a panel, the Employee and
the Company shall each select one (1) Qualified Physician who together shall
then select a third Qualified Physician. The determination of the individual
Qualified Physician or a majority of the panel of Qualified Physicians, as the
case may be, shall be binding and conclusive for all purposes. As used in this
Section 4.4, the term "Qualified Physician" shall mean any medical doctor who is
licensed to practice medicine in the State of Utah and who is reasonable
acceptable to the Employee and the Company. The Employee and the Company may, in
any instance, and in lieu of a determination by a Qualified Physician or a panel
of Qualified Physicians, agree between themselves that the Employee is disabled
for purposes of this Section 4.4, in which event the parties understand and
agree that any such determination shall only be applicable for purposes of this
Agreement. The Employee shall receive full compensation, benefits and
reimbursement of expenses pursuant to the terms of this Agreement from the date
disability begins until the date the Employee receives written notice that the
Qualified Physician or the panel of Qualified Physicians, as the case may be,
has certified the Employee's disability or until the Employee begins to receive
disability benefits pursuant to any disability insurance policy of the Company,
whichever occurs first.
-5-
4.5 Effect of Termination.
4.5.1 Termination for Cause or Voluntary Termination by the Employee. In the
event this Agreement and the Employee's employment is terminated for cause
hereunder or the Employee voluntarily terminates this Agreement pursuant to
Section 4.2 above, all obligations of the Company and all duties,
responsibilities and obligations of the Employee shall cease except as provided
in Section 4.5.2 below. Upon such termination, the Employee or the Employee's
representative or estate shall be entitled to receive only the compensation,
benefits and reimbursement earned by or accrued to the Employee under the terms
of this Agreement prior to the date of termination, but shall not be entitled to
any further compensation, benefits or reimbursement after such date.
4.5.2 Voluntary Termination by the Company; Severance
Compensation. In the event the Company voluntarily terminates this Agreement and
the Employee's employment hereunder during the Employment Term other than for
cause (and other than as allowed pursuant to Section 4.2 above), the Employee
will be entitled to the following severance benefits: (a) two (2) years' base
salary (as the Employee's base salary is set forth in Section 3.1 above or as
subsequently increased by the Company), fifty percent (50%) of which shall be
paid in a lump sum on the date of the Employee's termination and the other fifty
percent (50%) of which shall be paid in three (3) equal quarterly installments
commencing on the date that is one-hundred eighty (180) days after the date of
the Employee's termination; and (b) two (2) years of Company-paid health,
hospitalization and dental coverage, which insurance coverage shall be
substantially on the same terms and conditions as was offered to the Employee
during the Employment Term. Other than the items set forth in clauses (a) and
(b) above in this Section 4.5.2, the Employee shall not be entitled to any
further compensation, benefits or reimbursement after the date of his
termination. In the event the Employee voluntarily terminates this Agreement and
his employment hereunder pursuant to Section 4.2 above, the Employee shall not
be entitled to any severance pay and shall not be entitled to any further
compensation, benefits or reimbursement after such termination date. Except for
the severance pay provided in this Section 4.5.2, and except as otherwise
provided herein, all obligations of the Company will cease upon the Company's
voluntary termination of this Agreement and the Employee's employment hereunder.
No severance compensation will be paid to the Employee in the event he is
terminated for cause.
4.6 Change of Control Transfer. This Agreement shall not be terminated by the
voluntary or involuntary dissolution of the Company resulting from either a
merger or consolidation in which the Company is not the consolidated or
surviving company, or a transfer or all or substantially all of the assets of
the Company, or the sale of all or substantially all of the Company's equity
capital (a "change of control"). In the event of any such merger, consolidation,
sale or change of control, the Company's rights hereunder shall be assigned to
the surviving or resulting company, which company shall then honor this
Agreement with the Employee or purchase this Agreement from the Employee for an
-6-
amount equal to four (4) years' base salary (as the Employee's base salary is
set forth in Section 3.1 above or as subsequently increased by the Company),
which amount shall be paid to the Employee in one (1) lump sum upon the closing
of such merger, consolidation, sale or change of control.
4.7.1 Survivability.
4.7.1 Upon the termination of this Agreement pursuant to Section 4.4 or Section
4.5.1 above and upon the expiration of the Employment Term, this Agreement shall
thereupon be and become void and of no further force or effect, except that (a)
the covenant not to compete set forth in Section 5 below and (b) the proprietary
information provision contained in Section 6 below shall survive any such
termination or expiration and shall continue to bind the Employee for the period
of time stated therein, and, in addition, the attorneys' fees provisions,
governing law and jurisdiction and venue provisions, and indemnification
provisions set forth in Sections 12, 13 and 15 below, respectively, shall
continue to govern any disputes arising under this Agreement.
4.7.2 Upon the termination of this Agreement pursuant to Section 4.5.2 above,
this Agreement shall thereupon be and become void and of no further force or
effect, except that (a) the severance pay provisions of Section 4.5.2 above, (b)
the covenant not to compete set forth in Section 5 below and (c) the proprietary
information provision contained in Section 6 below shall survive any such
termination and shall continue to bind the Employee for the period of time
stated therein, and, in addition, the attorneys' fees provisions, governing law
and jurisdiction and venue provisions, and indemnification provisions set forth
in Sections 12, 13 and 15 below, respectively, shall continue to govern any
disputes arising under this Agreement.
4.8 Full Calendar Month. To the extent permitted by applicable law, the
calendar month in which the Employee's employment is terminated shall be counted
as a full month in determining all amounts hereunder and the vesting of any
benefits under any of the Company's benefit plans or programs.
5. Covenant Not to Compete.
5.1 Non-Compete Covenant. The Company and the Employee agree that the Company's
successful operation depends, in significant part, on the Employee's special
knowledge and expertise in Finance. Consequently, during the Employment Term and
for a period of six (6) months after the date of termination of the Employee's
employment with the Company (for any reason whatsoever) or the expiration of
this Agreement at the expiration of the Employment Term, the Employee, in
further consideration of the Company's agreement to employ the Employee as
provided herein, agrees not (a) to engage, directly or indirectly, personally or
as an employee, agent, consultant, partner (whether general or limited), member,
-7-
manager, officer, director, shareholder or otherwise, in any business activities
that are the same as those in which the Company engages or proposes to engage
(as indicated by the Company's business plan on the date of the expiration of
the Employment Term) for or on behalf of himself or any other person, firm,
company, corporation or business organization or entity that competes with the
Company in the consumer products industry, (b) to engage in such activities with
any other person, firm, company, partnership, corporation or business
organization or entity engaged in or about to become engaged in such activities
for or on behalf of such other person, firm, company, partnership, corporation
or business organization or entity, or (c) to entice, induce or encourage any of
the Company's other employees or any of its officers, directors or consultants
to engage in any activity that, were it done by the Employee, would violate any
provision of this Section 5.1; provided, however, that notwithstanding the
immediately preceding restrictions set forth in clauses (a), (b) and (c) of this
Section 5.1, the Employee shall be allowed to own up to five percent (5%) of the
issued and outstanding voting stock or interests of any company or mutual fund
that competes directly or indirectly with the Company if such stock or interests
are traded on a national securities market or on the NASDAQ Stock Market. The
restrictions set forth in this Section 5.1 shall only apply in the State of
Utah. The Employee expressly agrees and acknowledges that (i) this covenant not
to compete is reasonable as to time and geographic scope and area and does not
place any unreasonable burden on the Employee, (ii) the general public will not
be harmed as a result of the enforcement of this covenant not to compete, (iii)
the Employee has had an opportunity to discuss the terms and conditions of this
Agreement generally and this Section 5 specifically with his personal legal
counsel, and (iv) the Employee understands and hereby agrees to each and every
term and condition of this covenant not to compete.
5.2 Violation of Covenants. The Employee expresses, agrees and acknowledges that
the covenant not to compete contained in this Section 5 is necessary for the
Company's protection because of the nature and scope of the Company's business
and the Employee's position with and the scope of the duties, responsibilities
and obligations delegated to the Employee by the Company. If any of the
covenants or agreements contained in this Section 5 are violated, the Employee
agrees and acknowledges that any such violation or threatened violation will
cause irreparable injury to the Company and that the remedy at law for any such
violation or threatened violation will be inadequate and that the Company will
be entitled to injunctive relief and other equitable remedies without the
necessity of proving actual damages. This non-competition period shall be
extended by any period of time during which the Employee is in breach or
violation of this covenant.
6. Proprietary Information.
6.1 Return of Proprietary Information. Upon the termination of this Agreement
for any reason whatsoever or the expiration of the Employment Term, the Employee
shall immediately turn over to the Company any and all Proprietary Information
(as that term is defined below). The Employee shall have no right to retain any
-8-
copies of any material qualifying as Proprietary Information for any reason
whatsoever after the termination of his employment hereunder or the expiration
of the Employment Term, without the express written consent of the Company.
6.2 Non-Disclosure. The parties acknowledge and agree that, in the course of his
employment hereunder and through his prior activities for and on behalf of the
Company and the contemplated future activities for and on behalf of the Company
pursuant hereto, the Employee will receive, deal with and have access to, the
Company's Proprietary Information and that the Employee holds and will hold all
of the Company's Proprietary Information in trust and confidence for and on
behalf of the Company. The Employee agrees that he will not, during the
Employment Term or thereafter, in any fashion, form or manner, directly or
indirectly, retain, make copies of, divulge, disclose or communicate to any
person, firm company, partnership, corporation or business organization or
entity, in any manner whatsoever, except when necessary or required in the
normal course of the Employee's employment hereunder and for the benefit of the
Company or with the express prior written consent of the Company, any of the
Company's Proprietary Information or any information of any kind, nature or
description whatsoever concerning any matters affecting or relating to the
Company's business or affairs or any of its Proprietary Information.
6.3 Proprietary Information Defined. For purposes of this Agreement,
"Proprietary Information" shall include, but shall not be limited to, the
following: (a) identity of clients, customers, suppliers, retailers,
distributors, distribution channels or investors in, of or to the Company, or
potential clients, customers, suppliers, retailers, distributors, distribution
channels or investors in, of or to the Company; (b) any written, typed or
printed lists or other materials identifying the clients, customers, suppliers,
retailers, distributors or investors in, of or to the Company, or potential
clients, customers, suppliers, retailers, distributors or investors in, of or to
the Company; (c) any financial or other information supplied to the Company by
its clients, customers, suppliers, retailers, distributors or investors; (d) any
and all data or information involving the processes, security codes, flowcharts,
techniques, programs, marketing materials, personnel information, methods,
suppliers or contacts employed by the Company in the conduct of its business;
(e) any lists, documents, manuals, records, forms or other materials used by the
Company in the conduct of its business; (f) any descriptive materials describing
the processes, methods or procedures employed by the Company in the conduct of
its business; (g) any processes for or involving any of the Company's products
or contemplated or proposed products, processes or services or any in-process
patent applications or trade secrets relating to the Company's products,
processes or services; and (h) any other secret or confidential information or
material concerning the Company's business, affairs or products or services,
including, but not limited to, non-public financial information such as budgets
and business plans. The terms "list," "document" or their equivalent, as used in
this Section 6.3, are not limited to a physical writing or compilation, but also
include any and all information whatsoever regarding the subject matter of the
"list" or "document" whether or not such compilation has been reduced to writing
-9-
and regardless of the medium in which the same exists (whether electronic,
digital, magnetic, optical or otherwise).
7. Termination of Prior Agreements. This Agreement terminates and supersedes
any and all prior negotiations, correspondence, agreements, proposals and
understandings between the parties hereto with respect to employment or with
respect to the compensation of the Employee by the Company, and all such
negotiations, correspondence, agreements, proposals and understandings shall be
deemed to be merged into this Agreement and, to the extent inconsistent
herewith, such negotiations, correspondence, agreements, proposals and
understandings shall be deemed to be of no force or effect. There are no
representations, warranties or agreements, whether express or implied, oral or
written, with respect to the subject matter hereof, except as set forth herein.
8. Assignment. This Agreement is for the unique personal services of the
Employee and is not assignable or delegable, in whole or in part, by the
Employee without the prior written consent of the Company. This Agreement may be
assigned or delegated, in whole or in part, by the Company and, in such case,
shall be assumed by and become binding upon the person, firm, company,
corporation or business organization or entity to which this Agreement is
assigned.
9. Waiver or Modification. Any waiver, change, modification, extension,
discharge or amendment of any provision of this Agreement shall be effective
only if in writing in a document that specifically refers to this Agreement and
is signed by the party against whom enforcement of such waiver, change,
modification, extension, discharge or amendment is sought. The waiver by either
party of a breach of any provision of this Agreement by the other party shall
not operate or be construed as a waiver of any other provision hereof or any
subsequent breach of the same provision hereof.
10. Severability; Interpretation. In the event that any term or portion,
including any part of a Section or subsection, of this Agreement is invalid or
unenforceable for any reason, the remaining terms or portions of this Agreement,
including the remaining Sections or subsections, if any, shall be severable and
shall remain in full force and effect. The parties to this Agreement agree that
the court making a determination that any term or provision of this Agreement is
unenforceable shall modify the scope, duration, geographic area or application
of the term or provision so that the term or provision is enforceable to the
maximum extent permitted by applicable law. Notwithstanding any rule or maxim of
construction to the contrary, any ambiguity or uncertainty in this Agreement
shall not be construed against either of the parties based upon authorship of
any of the provisions hereof. The above Recital is deemed to be incorporated
herein by reference.
11. Notices. Any notice required or permitted hereunder to be given by either
party shall be in writing and shall be delivered personally or sent by certified
or registered mail, postage prepaid, or by private courier, or by telex,
-10-
telegram or telecopy to the party to the address set forth below or to such
other address as either party may designate from time to time according to the
terms of this Section 11:
To the Employee at: Xxxxx X. Xxxxxxx
00 Xxxx 0000 Xxxxx
Xxxxxxxxxxx, Xxxx 00000
Fax: (000) 000-0000
To the Company at: Dynatec International, Inc.
0000 Xxxxx Xxxxx Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Xxxxxxxxx X. Xxxxxxxxx, Xx.
Chief Executive Officer
Fax: (000) 000-0000
A notice delivered personally shall be effective upon receipt. A notice sent by
telex, telegram or telecopy shall be effective twenty-four (24) hours after the
dispatch thereof. A notice delivered by private courier shall be effective on
the day delivered or if delivered by mail, the third (3rd) business day after
the day of mailing.
12. Attorneys' Fees. In the event of any action at law or in equity to
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees, court costs and disbursements in
addition to any other relief to which such party may otherwise be entitled.
13. Governing Law; Jurisdiction and Venue. This Agreement shall be governed
by and construed in accordance with the laws of the State of Utah without giving
effect to any applicable conflicts of law provisions. The parties consent to the
exclusive jurisdiction and venue of the federal and state courts residing in
Salt Lake City, Salt Lake County, Utah for the resolution of any disputes
arising under or out of this Agreement.
14. Business Opportunities. During the Employment Term the Employee agrees to
bring to the attention of the Company's Board of Directors all written business
proposals that come to the Employee's attention and all business or investment
opportunities of whatever nature that are created or devised by the Employee and
that relate to areas in which the Company conducts business and might reasonably
be expected to be of interest to the Company or any of its subsidiaries or
divisions.
15. Employee's Representations and Warranties. The Employee hereby represents
and warrants that he is not under any contractual obligation to any other
company, entity or individual that would prohibit or impede the Employee from
performing his duties and responsibilities under this Agreement and that he is
-11-
free to enter into and perform the duties and responsibilities required by this
Agreement. The Employee hereby agrees to indemnify and hold the Company and its
officers, directors, employees, shareholders and agents harmless in connection
with the representations and warranties made by the Employee in this Section 15.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-12-
IN WITNESS WHEREOF, the parties have executed this Employment Agreement
effective as of the Effective Date.
THE COMPANY: THE EMPLOYEE:
DYNATEC INTERNATIONAL, INC.,
a Utah corporation
By: Xxxxxxxxx X. Xxxxxxxxx, Xx. Xxxxx X. Xxxxxxx
------------------------------------- ------------------------------
Xxxxxxxxx X. Xxxxxxxxx, Xx.
Its: Chief Executive Officer
