EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement"), made and entered into
this 7th day of September of 2000 effective January 1, 2000 (the "Effective
Date"), by and between Prime Companies, Inc., a Delaware corporation
("Employer"), and Xxxxxxx Xxxxxxx, a resident of California ("Employee").
WITNESSETH:
WHEREAS, Employer is a corporation engaged in business in the State of
Delaware and throughout the United States; and
WHEREAS, Employer desires to employ Employee in the capacity of Chief
Financial Officer upon the terms and conditions hereinafter set forth; and
WHEREAS, Employee is willing to enter into this Agreement with respect to
his employment and services upon the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and obligations
contained herein, Employer hereby employs Employee and Employee hereby accepts
such employment upon the terms and conditions set forth below.
1. Term of Employment. The term of employment under this Agreement shall be for
a period of three (3) years, commencing on the Effective Date and terminating on
December 31, 2002, unless such employment is terminated or extended prior to the
expiration of said period as hereinafter provided. Effective as of the
expiration of such initial three-year term and as of each anniversary date
thereof, the term of this Agreement shall be extended for an additional one-year
period unless, not later than six (6) months prior to each such respective date,
either party hereto shall have given notice to the other that the term shall not
be so extended. In the event of non-renewal, and the terminating party shall
give notice of this decision not later than five and a half months before the
anniversary date. Notwithstanding the foregoing, Employee's employment hereunder
may be earlier terminated as provided in ss.8 hereof.
2. Duties of Employee.
(a) Chief Financial Officer. Employee agrees that during the term of
this Agreement, he will devote his professional and business-related time,
skills, and best efforts to the businesses of Employer in the capacity of Chief
Financial Officer or in such other capacities as Employer may request of
Employee hereafter in writing. The initial outline of duties includes the
following:
(1) To provide financial reporting to the President as requested by the
President and to Employer's Board of Directors (the "Board") as
requested by the Chairman;
(2) To keep or cause to be kept adequate and correct books and records of
accounts of the properties and business transactions of the
corporation, including accounts of its assets, liabilities, receipts,
disbursements, gains, losses, capital, retained earnings, shares,
options, dividends, etc. The books of account shall at all reasonable
times be open to inspection by any director.
(3) The chief financial officer shall (i) deposit corporate funds and
other valuables in the corporation's name and to its credit with
depositories designated by the board; (ii) disburse corporate funds as
authorized by the board; and (iii) whenever requested by the board or
the chief executive officer, render a statement of the corporation's
financial condition and an account of all transactions he has
conducted as chief financial officer.
(4) The chief financial officer shall be deemed the treasurer for any
purpose requiring action by the corporation's treasurer.
(5) The chief financial officer shall pay the expenses of incorporation,
organization, and expansion, and to reimburse any persons who advance
reimbursable business expense funds on behalf of the corporation as
approved by the President.
(6) In addition, Employee shall devote all necessary time and his best
efforts in the performance of any other duties as may be assigned to
him from time to time by the President and/or the Board including, but
not limited to, serving on the Board if elected.
If there are major changes in the duties or responsibilities of Employee
from those listed above that are not mutually agreed upon, Employee may give
notice of non-acceptance specifying the details of his counter-proposal and
request to negotiate a mutually acceptable compromise. If the Parties are unable
within thirty (30) days of the date of Employee's notice of non-acceptance,
Employee may give notice of his intention to terminate his employment which
shall become effective sixty (60) days thereafter absent a mutual agreement
otherwise and absent Employer's withdrawal of the request for changed duties,
thereby re-establishing the status quo ante. Employee agrees to continue to
fulfill his employment obligations throughout the entire period of employment
and to train conscientiously a replacement if so requested, notwithstanding any
pending notice of termination.
(b) Other Positions. Employer acknowledges and agrees that, during the term
of this Agreement, Employee will devote some of his professional and
business-related time, skills, and best efforts to Prime Companies, Inc. and
subsidiaries of Employer including Mid-Cal Express, Inc. and Mid-Cal Logistics,
Inc., and that Employee will not receive compensation from such subsidiaries for
his services. Notwithstanding the foregoing, the Executive may make and manage
personal business investments of his choice and, after first seeking and
obtaining Board approval, have a second job or serve in any capacity with any
civic, educational, or charitable organization, or any trade association.
3. Compensation. Employer shall pay Employee an annual base salary of One
Hundred Thousand ($100,000.00) per annum (or fraction for portions of a year) to
be paid semi-monthly on or about the first and 15th of each month. Such base
salary will be adjusted from time to time in accordance with then current
standard salary administration guidelines of Employer. Employee's salary shall
be subject to all appropriate federal and state withholding taxes and shall be
payable in accordance with the normal payroll procedures of Employer.
4. Fringe Benefits. The terms of this Agreement shall not foreclose Employee
from participating with other employees of Employer in such fringe benefit or
incentive compensation plans as may be authorized and adopted from time to time
by Employer; provided, however, that Employee must meet any and all eligibility
provisions required under said fringe benefit or incentive compensation plans.
Employee may be granted such other fringe benefits or perquisites as Employee
and Employer may from time to time agree upon. In addition, Human Resources may
devise a job specific incentive plan and present it to the Board and, if
approved, to Employee.
5. Vacations. Employee shall be entitled to the number of paid vacation days in
each calendar year as shall be determined by the Board from time to time. In no
event, however, shall Employee be entitled to less than two weeks paid vacation
during each calendar year.
6. Reimbursement of Expenses. Employer recognizes that Employee will incur
legitimate business expenses in the course of rendering services to Employer
hereunder. Accordingly, Employer shall reimburse Employee, upon presentation of
receipts or other adequate documentation, for all necessary and reasonable
business expenses incurred by Employee in the course of rendering services to
Employer under this Agreement.
7. Working Facilities. Employee shall be furnished an office, and such other
facilities and services suitable to his position and adequate for the
performance of his duties, which shall be consistent with the policies of
Employer.
8. Termination. The employment relationship between Employee and Employer
created hereunder shall terminate before the expiration of the stated term of
this Agreement upon the occurrence of any one of the following events:
(a) Employee's Death or Permanent Disability. For the purpose of this
Agreement, the "permanent disability" of Employee shall mean Employee's
inability, because of his injury, illness, or other incapacity (physical or
mental), to perform the essential functions of the position contemplated herein,
with or without reasonable accommodation to Employee with respect to such
injury, illness, or other incapacity, for a continuous period of sixty (60) days
or for ninety (90) days out of a continuous period of 360 days. Such permanent
disability shall be deemed to have occurred on the sixtieth (60th) consecutive
day or on the ninetieth (90th) day within the specified period, whichever is
applicable.
(b) Termination for Cause. The following events, which for purposes of
this Agreement shall constitute "cause" for termination with the majority vote
of the Board:
(1) The willful breach by Employee of any provision of Sections 11, 12, or
13 hereof or any act of fraud, misappropriation, or embezzlement by
Employee with respect to any aspect of Employer's business or under
circumstances that reflect adversely on Employer in the public eye, in
each case in the Board's sole and exclusive determination, shall be
cause for immediate termination with immediate curtailment of all
compensation, benefits within statutory limitations, and stock option
rights.
(2) The willful breach by Employee of Section 2 hereof (including but not
limited to a refusal to follow lawful directives of the Board) after
notice to Employee of the details thereof and a period of 10 days
thereafter within which to cure such breach and the failure of
Employee to cure such breach to the Board's satisfaction within such
10 day period;
(3) The use of illegal drugs by Employee during the term of this Agreement
that, in the sole and exclusive determination of the Board, interferes
with Employee's performance of his duties hereunder or under
circumstances that reflect adversely on Employer in the public eye;
(4) The filing of a petition in bankruptcy court for bankruptcy,
reorganization, or rearrangement or an adjudication that Employee is
bankrupt;
(5) The commencement of involuntary proceedings against Employee for
bankruptcy or appointment of a receiver because of insolvency;
(6) If the Employer determines that employee has engaged in any dishonest
conduct in the course of his management duties including by way of
example and not by limitation the knowing receipt of kickbacks from
suppliers, misappropriation of corporate assets or opportunities, etc.
(7) If the circumstances of Employee's personal life, whether or not in
the course of management duties, reflects adversely on the Employer
such that it would be in the Employer's best interests, in its sole
discretion, to terminate its business relations with Employee.
(8) The dissolution of Employer's corporate status;
(9) Employee is convicted of or pleads guilty or nolo contendere to a
felony or misdemeanor involving financial misconduct, moral turpitude,
controlled substances, or personal injuries caused by driving under
the influence;
(10) Failure of performance by Employee that is repeated or continued after
30 day written notice to Employee of such failure and that is
determined by the Board to be injurious to the business or interests
of Employer and which failure is not cured by Employee within such 30
day period in the Board's sole determination.
Any notice of discharge shall describe with reasonable specificity the
cause or causes for the termination of Employee's employment, as well as the
effective date of the termination (which effective date may be the date of such
notice). If Employer terminates Employee's employment for any of the reasons set
forth above, Employer shall have no further obligations hereunder from and after
the effective date of termination (other than as set forth below).
(c) Termination by Employee with Notice. Employee may terminate this
Agreement without liability to Employer arising from the resignation of Employee
upon a three (3) month written notice to Employer. Employer retains the right
after proper notice of Employee's voluntary termination to require Employee to
cease employment immediately. During such notice period, Employee shall provide
such consulting services to Employer as Employer may reasonably request and
shall assist Employer in training his successor and generally managing an
orderly transition.
(d) Termination by Employer with Notice. Employer may terminate this
Agreement at any time, with or without cause, upon three (3) month written
notice to Employee; provided, however, upon such notice Employee shall not be
required to perform any services for Employer other than during the period of
one (1) month immediately following the receipt of such notice of termination in
which Employee shall assist Employer in training his successor and generally
preparing for an orderly transition.
9. Compensation Upon Termination.
(a) General. Upon the termination of Employee's employment under this
Agreement before the expiration of the stated term hereof for any reason,
Employee shall be entitled to (i) the salary earned by him before the effective
date of termination, as provided in Section 3(a) hereof, prorated on the basis
of the number of full days of service rendered by Employee during the year to
the effective date of termination, (ii) any accrued, but unpaid, vacation
benefits, and (iii) any authorized but unreimbursed business expenses. However
on termination, Employee automatically forfeits any unvested fringe benefits,
dividends, bonuses, and stock options, and any vesting schedule shall be
adjusted on a pro rata basis parallel to ss.9(a)(i) above.
(b) Death or Disability. In the event of termination of employment
hereunder on account of Employee's death or disability, Employee, Employee's
heirs, estate, or personal representatives under law, as applicable, shall be
entitled to the payment of Employee's Base Salary as in effect immediately prior
to death or disability for a period of not less than two calendar months and not
more than the earlier of six calendar months or the payment of benefits pursuant
to a life or disability insurance policy, if any, purchased by Employer for
Employee. Employee, beneficiary, or estate shall not be required to remit to the
Company any payments received pursuant to any such insurance policy purchased by
Employer. Employee is encouraged to purchase life and/or disability insurance to
cover financial needs resulting from death or disability.
(c) Termination For Cause. If the employment relationship hereunder is
terminated by Employer for cause (as defined in Section 8(b) hereof), Employee
shall not be entitled to any severance compensation, except as provided in
Section 9(a) above, subject to offset and deductions for reasonably demonstrable
damages.
(d) Termination by Employee with Notice. If the employment relationship
is terminated by Employee pursuant to ss.8(c) above, Employer shall remain
obligated to pay Employee his salary during the three (3) month notice period or
the remaining term of this Agreement, whichever is less.
(e) Termination by Employer with Notice. If the employment relationship
is terminated by Employer pursuant to the provisions of ss.8(d) hereof, Employer
shall remain obligated to pay Employee his salary during a nine (9) month
severance period, again subject to offset and deductions for reasonably
demonstrable damages.
(f) Survival. The provisions of Sections 9, 11, 12, 13, 14, and 20 hereof
shall survive the termination of the employment relationship, irrespective of
the manner of termination absent a specific writing providing otherwise which is
signed by Employee and the Board. The Parties agree that Employee's breach,
violation, or threat of breach or violation of such sections will result in
immediate and irreparable injury and harm to Employer, and that Employer shall
have, in addition to any and all remedies of law and other consequences under
this Agreement, the right to an injunction, specific performance, or other
equitable relief to prevent the breach or violation of the obligations
hereunder.
(g) Excise Tax Limit. Notwithstanding anything in this Agreement to the
contrary, in the event it shall be determined that any payment or distribution
by Employer or any other person or entity to or for the benefit of Employee is a
"parachute payment" (within the meaning of ss.280G of the Internal Revenue Code,
whether paid or payable or distributed or distributable pursuant to the terms of
this Agreement or otherwise (a "Payment") in connection with, or arising out of,
his employment with Employer or a change in ownership or effective control of
Employer (within the meaning of ss.280G of the Code, and would be subject to the
excise tax imposed by ss.4999 of the Code) (the "Excise Tax"), the Payments
shall be reduced to the extent necessary so that such remaining Payment would
not be subject to the excise tax imposed by ss.4999 of the Code.
10. Other Agreements. This Agreement shall be primary with regard to other
agreements between the Parties which are inconsistent in any way and shall be
deemed to alter the terms of any executive compensation agreements, deferred
compensation agreements, bonus agreements, general employment benefits plans,
stock option plans, and any other plans or agreements entered into between
Employee and Employer pursuant to which Employee has been granted specific
rights, benefits, or options.
11. Non-competition. Employee agrees that, during his employment with Employer
and for a period of two (2) years from the date of termination of his employment
with Employer, he will not, without the approval of the Board, directly or
indirectly, alone or as partner, joint venturer, officer, director, employee,
consultant, agent, independent contractor, or stockholder (other than as
provided below) of any company or business, engage in any "Competitive Business"
within any State of the United States or Province of Canada where Employer has
staff, equipment, or facilities. For purposes of the foregoing, the term
"Competitive Business" shall mean any business directly involved in those
business activities performed by Employer during Employee's employment period.
Notwithstanding the foregoing, Employee shall not be prohibited during the
non-competition period applicable above from acting as a passive investor where
he owns not more than five percent (5%) of the issued and outstanding capital
stock of any publicly held company.
12. Confidential Data. Employee agrees that he will not at any time during the
Employment Period or at any time thereafter for any reason, in any fashion,
form, or manner, either directly or indirectly, divulge, disclose, or
communicate to any person, firm, corporation, or other business entity, in any
manner whatsoever, any confidential information or trade secrets concerning the
business of Employer including, without limiting the generality of the
foregoing, the techniques, methods, or systems of its operation or management,
any information regarding its financial matters, or any other material
information concerning Employer's business, its manner of operation, its plans
or other material data including without limitation the confidential information
listed in Exhibit A. The provisions of this Section shall not apply to (i)
information disclosed in the performance of Employee's duties to Employer based
on his good faith belief that such a disclosure is in the best interests of
Company; (ii) information that is, at the time of the disclosure, public
knowledge; (iii) information disseminated by Employer to third parties in the
ordinary course of business; (iv) information lawfully received by Employee from
a third party who, based upon inquiry by Employee, is not bound by a
confidential relationship to Employer; or (v) information disclosed under a
requirement of law or as directed by applicable legal authority having
jurisdiction over the Executive.
13. Non-solicitation of Customers/Employees. Employee covenants that, during his
employment with Employer and for a period of two (2) years from the date of
termination of his employment with Employer, he will not (i) directly or
indirectly induce or attempt to induce any customer or employee of Employer to
terminate his or her business relations with Employer or (ii) without prior
written consent of Employer, offer business relations either on behalf of
himself or on behalf of any other individual or entity to any customer or
employee of Employer or to any former customer or employee of Employer.
14. Property of Employer. Employee acknowledges that from time to time in the
course of providing services pursuant to this Agreement, he shall have the
opportunity to inspect, create, or use certain property, both tangible and
intangible, of Employer and Employee hereby agrees that such property shall
remain the exclusive property of Employer, and Employee shall have no right or
proprietary interest in such property, whether tangible or intangible,
including, without limitation, Employee's confidential information listed on
Exhibit A. In addition, Employee is retained in a capacity such that his
responsibilities may include the making of technical and managerial
contributions of value to Employer. Employee hereby assigns to Employer all
rights, title, and interest in such contributions and inventions made or
conceived by Employee alone or jointly with others during the Employment Period,
which relate to the Business. This assignment shall include (a) the right to
file and prosecute patent applications on such inventions in any and all
countries, (b) the patent applications filed and patents issuing thereon, and
(c) the right to obtain copyright, trademark, or trade name protection for any
such work product. Employee shall promptly and fully disclose all such
contributions and inventions to Employer and assist Employer in obtaining and
protecting the rights therein (including patents thereon), in any and all
countries; provided, however, that said contributions and inventions will be the
property of Company, whether or not patented or registered for copyright,
trademark, or trade name protection, as the case may be. Inventions conceived by
the Executive that are not related to Employer's business or business activities
shall remain the property of the Executive. Employee agrees to return to
Employer all Employer property, confidential/proprietary information, and all
copies of the same within five (5) days of employment termination.
15. Equitable Relief. Employee acknowledges that the services to be rendered by
him are of a special, unique, unusual, extraordinary, and intellectual
character, which gives them a peculiar value, and the loss of which cannot
reasonably or adequately be compensated in damages in an action at law, and that
a breach by him of any of the provisions contained in this Agreement will cause
Employer irreparable injury and damage. By reason thereof, Employee agrees that
Employer shall be entitled, in addition to any other remedies it may have under
this Agreement or otherwise, to injunctive and other equitable relief to prevent
or curtail any breach of this Agreement by him. Employee hereby acknowledges and
agrees that prohibitions set forth in ss.ss.11, 12, 13, and 14 are in addition
to, and not in lieu of, any rights or remedies that Employer may have available
pursuant to the laws of any jurisdiction or at common law to prevent such
violations, and the enforcement by Employer of its rights and remedies pursuant
to this Agreement shall not be construed as a waiver of any other rights or
available remedies that it may possess in law or equity absent this Agreement.
16. "Change of Control." The terms of this Agreement shall remain in effect in
the event that (1) Employer becomes a subsidiary of another corporation or
entity or is merged or consolidated into another corporation or entity or
substantially all of the assets of Employer are sold to another corporation or
entity; or (2) any person, corporation, partnership, or other entity, either
alone or in conjunction with its "affiliates," as that term is defined in Rule
405 of the General Rules and Regulations under the Securities Act of 1933, as
amended, or other group of persons, corporations, partnerships, or other
entities who are not "affiliates" but who are acting in concert, becomes the
owner of record or beneficially of securities of Employer that represent
thirty-three and one-third percent (33 1/3%) or more of the combined voting
power of Employer's then outstanding securities entitled to elect Directors.
MISCELLANEOUS PROVISIONS
------------------------
17. Non-Assignment; Successors. Neither party hereto may assign his or its
rights or delegate his or its duties under this Agreement without the prior
written consent of the other party; provided, however, that: (i) this Agreement
shall inure to the benefit of and be binding upon the successors and assigns of
the Company upon any sale of all or substantially all of the Company's assets,
or upon any merger, consolidation, or reorganization of the Company with or into
any other corporation, all as though such successors and assigns of the Company
and their respective successors and assigns were the Employer; and (ii) this
Agreement shall inure to the benefit of and be binding upon the heirs, assigns,
or designees of Employee to the extent of any payments due to them hereunder. As
used in this Agreement, the term "Employer" shall be deemed to refer to any such
successor or assign of the Company referred to in the preceding sentence.
18. Severability and Reformation. The parties hereto intend all provisions of
this Agreement to be enforced to the fullest extent permitted by law. If,
however, any provision of this Agreement is held to be illegal, invalid, or
unenforceable under present or future law, such provision shall be reformed to
effect the fullest possible extent of the provision that is legal, valid, and
enforceable. In the event that even this is not possible, such provision shall
be fully severable, and this Agreement shall be construed and enforced as if
such illegal, invalid, or unenforceable provision were never a part hereof, and
the remaining provisions shall remain in full force and effect and shall not be
affected by the illegal, invalid, or unenforceable provision or by its
severance.
19. Construction with Articles and Bylaws. Except as explicitly modified by this
Agreement, the provisions of the Articles and Bylaws shall remain in full force
and effect. Notwithstanding the foregoing, the provisions of this Agreement
shall be subject to the provisions of the Articles and shall supersede the
Bylaws only to the extent inconsistent herewith, and the Articles and Bylaws
shall be construed in a manner that gives effect to the purposes of this
Agreement and the intent of the parties hereto.
20. Mandatory Mediation/Arbitration. Given the economies of time and money as
well as enhanced prospects of swiftly restoring amicable business relations, in
the event of a breach, default, and/or dispute between the Parties in connection
with, arising out of, or related to this Agreement and any aspect of relations
between the Parties including without limitation whether an issue is arbitrable,
each Party agrees exclusively to the following terms and conditions for dispute
resolution and claims for relief including injunctive or other equitable relief.
The Parties agree to take the following actions in the following order:
(a) Mediation. The Parties shall agree upon a neutral mediator who is
mutually acceptable and may be selected from those mediators offered by the
Judicial Arbitration Mediation Services-Endispute ("JAMS") in Sacramento or San
Francisco, but there are advantages to finding a conveniently available mediator
close at hand who can readily address and help resolve problematic matters at
the earliest possible stages. If a mediator is not appointed and approved ten
(10) days after the date on which one or the other Party first seeks to retain a
mediator, the mediator shall be appointed by JAMS. The mediator shall have ten
(10) business days to resolve the matter; and
(b) Arbitration. If mediation proves unsuccessful and the matter has not
been resolved after ten (10) business days, any Party (the "Complaining Party")
may seek arbitration, to which each Party hereby agrees to submit to personal
jurisdiction, as follows:
(1) Notice of Request. The Complaining Party shall notify in writing each
party involved in the matter that it is seeking arbitration in
accordance with this Section. There shall be a period of thirty (30)
days after the date of such notice during which the Parties involved
in the matter shall hold with the mediator at least (2) mediation
meetings. If, after such thirty (30) day period as expired, such two
(2) additional mediation meetings have taken place and the matter is
not resolved, the Complaining Party may proceed with a formal
arbitration.
(2) Mutual Designation of the Arbitrator. The Complaining Party shall
notify the other Party that it elects to have the dispute heard and
determined by a former judge of the California Superior or Appellate
Courts retained by JAMS under JAMS rules and procedures, and request
that a hearing be held to resolve the controversy within thirty (30)
days after the filing of the application or as soon thereafter as
possible. The arbitration hearing shall be held in a place agreed upon
between the Parties and if no such agreement is possible within ten
(10) days of discussion, the JAMS arbitrator shall designate the
arbitration site. The arbitrator shall be required to grant a remedy
specifically requested by a party to the arbitration, and he/she shall
have no authority to fashion a remedy that has not been so
specifically requested.
(3) Expediting Resolution. Each Party agrees actively to expedite the
resolution of the dispute with all reasonable efforts to secure a
hearing within thirty (30) days after the filing of the Arbitration
Petition, or as soon thereafter as possible. In more complicated cases
upon the Arbitrator's consent, each Party may serve a single request
for admissions, interrogatories, and request for production of
documents in compliance with the California Rules of Civil Procedure,
and the arbitrator shall have sole and complete discretion to
determine any discovery disputes.
(4) Equitable Relief. In the event of an application for a temporary
restraining order or other equitable relief, each party agrees to any
and all measures necessary to secure a hearing within ten (10)
business days of the Notice which may proceed even without the
responding Party's presence, subject to proof satisfactory to the JAMS
arbitrator that notice was effected.
(5) Arbitrator's Decision and Confidentiality. The arbitrator shall
deliver a written opinion setting forth factual findings and the
decision rationale which may be reduced to a judgment and filed in any
court having jurisdiction. At the expense of the moving party, the
arbitrator shall reconsider the decision once upon a written motion
submitted and served within ten (10) business days of the decision.
The Confidentiality provisions of this Agreement shall apply to the
arbitration proceeding, all evidence taken, and the opinion.
(6) The Losing Party. The arbitrator's award or opinion shall identify by
name the party or parties who shall not have prevailed in the
arbitration (the "Losing Party"). In rendering the decision with
respect to any state law claims, the arbitrator shall apply the laws
of the State of California without regard to the application of
principles of conflicts of law. The arbitrator shall assess all
expenses of arbitration and mediation, including but not specifically
limited to all forms of mediator's fees, arbitration fees, costs, and
attorneys' fees in accordance with Paragraph 20(a) of this Agreement.
(7) Attorneys' Fees and Costs. The costs and expenses incurred in
connection with any attempt at mediation described above, including
JAMS' and the mediator fees, shall be shared equally among all the
Parties involved in such mediation, with each party responsible for
its own attorneys' fees, if the mediation successfully resolves the
matter, or if the matter is otherwise resolved without arbitration.
However, if the matter is arbitrated, the Losing Party in the
arbitration shall pay all the mediation costs including but not
specifically limited to the mediator's fees and disbursements and
attorneys' fees of the parties who are not the Losing Party as well as
all costs and expenses of arbitration including but not specifically
limited to JAMS' fees, attorneys' fees of parties who are not the
Losing Party and costs, plus attorneys' fees incurred to enforce any
award or opinion entered in any court having jurisdiction thereof. If
more than one party constitutes the Losing Party, as determined by the
arbitrator, all such parties shall be jointly and severally liable for
all costs and expenses of mediation and/or arbitration.
(8) Full Assessment as Incentive for Resolution by Mediation. For purposes
of this Section, the phrase "costs and expenses" shall include, in
addition to those items enumerated above, discovery costs, air and
ground transportation, lodging, meals, and related items advanced or
incurred by necessary parties to the arbitration and by witnesses,
investigators, accountants, and attorneys participating in the who
reside outside Northern California. For purposes of this Section, the
term "attorney's fees" shall mean the full and actual cost of any
legal services actually performed in connection with the matter for
which such fees are sought, calculated on the basis of the usual fees
charged by the attorneys performing such services, and such fees shall
not be limited to "reasonable attorney's fees" as that term may be
defined by statutory or decisional authority. Judgment on such award
may be entered in any court having jurisdiction over the subject
matter of the controversy and shall thereafter be deemed an
enforceable judgment.
(c) Enforceability. This Agreement will be enforceable, the arbitration
order/award will be final, and judgment thereon may be entered in any court of
competent jurisdiction. Any complaint, adversarial claim, or action related to
this Agreement prosecuted in any jurisdiction or forum other than as provided
herein shall be null and void.
(d) Survivability. This provision shall survive the termination of this
Agreement. This agreement to arbitrate shall be specifically enforceable, each
Party waiving rights to jury trial and appeal in the interests of maximizing
economy, privacy, and swift resolution while minimizing expense, hostilities,
and delay.
21. Notices. All notices and other communications required or permitted to be
given hereunder shall be in writing and shall be deemed to have been duly given
if delivered personally, mailed by certified mail (return receipt requested) or
sent by overnight delivery service, cable, telegram, facsimile transmission or
telex to the parties at the following addresses or at such other addresses as
shall be specified by the parties by like notice:
(a) If to Employer: Prime Companies, Inc.
000 Xxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
(000) 000-0000
Facsimile: (000) 000-0000
e-mail: xxxxxxxx@xxxxxxxxxxxxxx.xxx
(b) If to Employee: Xxxxxxx Xxxxxxx
000 Xxxxx Xxxxx
Xxxxxx Xxxxx, XX 00000
(000) 000-0000
Facsimile: (000) 000-0000
e-mail: xx@xxxxxxx.xx
-------------
(c) and in all cases to: Xx. Xxxxxx Xxxxxxx, Esq.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
(000) 000-0000
Facsimile: (000) 000-0000
e-mail: xxxxxxxxxx@xxx.xxx
or to such other respective addresses as the Parties hereto shall designate to
the other by like notice, provided that notice of a change of address shall be
effective only upon receipt thereof.
Notice so given shall, in the case of notice so given by mail, be
deemed to be given and received on the fourth calendar day after posting, in the
case of notice so given by overnight delivery service, on the date of actual
delivery and, in the case of notice so given by cable, telegram, facsimile
transmission, telex, or personal delivery, on the date of actual transmission
or, as the case may be, personal delivery, in each case followed by posting with
the U. S. Postal Service by certified mail. The Parties further consent and
agree that notice given pursuant to this section shall be effective in securing
personal jurisdiction for dispute resolution with JAMS.
22. Further Actions. Whether or not specifically required under the terms of
this Agreement, each Party hereto shall execute and deliver such documents and
take such further actions as shall be necessary in order for such party to
perform all of his or its obligations specified herein or reasonably implied
from the terms hereof.
23. Waiver of Breach. Any waiver of any breach of this Agreement shall not be
construed to be a continuing waiver or consent to any subsequent breach on the
part either of the Employee or Employer.
24. Governing Law. This agreement shall be governed by and construed in
accordance with the internal law, and not the law of conflicts, of the State of
California.
25. Assignment. This Agreement is personal to Employee and may not be assigned
in any way by Employee without the prior written consent of Employer. This
Agreement shall not be assignable or delegable by Employer, other than to an
affiliate of Employer, except if there is a Change of Control as defined in
Section 16, Employer may assign its rights and obligations hereunder to the
person, corporation, partnership or other entity that has gained such control.
26. Interpretation. Neither this Agreement nor any amendment hereto nor any
uncertainty or ambiguity herein shall be construed or resolved against the
Company or Employee, whether under any rule of construction or otherwise. On the
contrary, this Agreement and any amendment has been reviewed by all parties and
shall be construed and interpreted according to the ordinary meaning of the
words used so as to fairly accomplish the purposes and intentions of the parties
hereto. The normal rule of construction to the effect that any ambiguities are
to be resolved against the drafting party shall not be used in the construction
or the interpretation of this Agreement or any amendments hereto.
27. Entire Agreement & Modification. This Agreement merges and supersedes all
prior agreements, negotiations, warranties, and representations by or between
the Parties on the subjects addressed herein, whether oral, written, or both,
and constitutes the entire understanding with respect to this subject matter.
This Agreement may be modified only with a writing signed by both Parties and
approved by the Board, may be signed in counterparts, and may be deemed an
original including signature pages even in facsimile copy. No promise, warranty,
representation, or amendment shall be binding unless in writing and signed by
the Party to be charged.
28. Good Faith. The Parties intend and agree that their respective rights,
duties, powers, liabilities, obligations, and discretionary acts shall be
performed, carried out, discharged, and exercised reasonably in good faith and
in fair dealing with the other Party, shareholders, directors, officers,
employees, customers, and suppliers of the Company.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement.
PRIME COMPANIES, INC.
By: /s/ Xxxxxxx Xxxx By: /s/ Xxxxxxx Xxxxxxx
---------------- -------------------
Name: Xxxxxxx X. Xxxx Name: Xxxxxxx Xxxxxxx
Title: Chief Executive Officer Title: Chief Financial Officer
EMPLOYEE: APPROVED BY THE BOARD:
By: /s/ Xxxxxxx Xxxxxxx By:/s/ Xxxxxxx Xxxx
------------------- ----------------
Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxx, Chairman
----------------------
EXHIBIT A - CONFIDENTIAL/PROPRIETARY INFORMATION
Generally, Employer's confidential and propriety information includes all
property, tangible and intangible, regardless of how stored in writing,
magnetically encoded, photographic, laser imprinted, or computerized, etc. Upon
termination of employment, Employee shall be entitled only to remove his
personal belongings. More specifically but without limitation,
Confidential/Proprietary Information includes the following:
1. All Employer trade secrets and all business plans including strategic
plans, product plans, marketing plans, financial plans, operating plans,
resource plans, all research and development plans including all records,
data, illustrations, computer files, and any other documentation produced
by or related to such efforts;
2. All Employer business records including customer, supplier, and personnel
lists and information, all internally prepared documents, all sales,
accounting, and business activity records and files;
3. All documents, software, records, files, internal policies, procedures,
methods, and approaches which have been developed or adopted by to Prime
Companies, Inc. and are not public.
3. Any information relating to the marketing, pricing, contracts, discounting,
employment, job responsibility, performance, salaries, and personnel
compensation of any other employee with Employer.
4. Any information, knowledge, or data that Employee receives in confidence or
acquires from employer or its staff or customers or that Employee may
develop during the course of his employment and which relates to or is a
trade secret of the company or its customers as contained in formulas,
patterns, toolings, devices, processes, methods, machines, compositions,
discoveries, inventions, designs, compilations of information, records,
specifications, customer/employee/supplier lists, or otherwise.
