EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into this
19th day of October, 1998, by and between XXXX X. XXXXX ("Employee") and DYNATEC
INTERNATIONAL, INC and SOFTALK, INC. (the "Company").
RECITAL
This Agreement is made and entered into with reference to the following
facts and objectives:
The Company desires to establish its right to the services of Employee
in the capacities described below, on the terms and conditions hereinafter set
forth, and Employee is willing to accept such employment on such terms and
conditions.
Therefore, in consideration of the mutual agreements hereinafter set
forth, Employee and the Company have agreed and do hereby agree as follows:
AGREEMENT
1. DUTIES.
The Company does hereby hire, engage, and employ the Employee as the Senior
Vice President, Chief Financial Officer and Secretary of the Company and
Employee does hereby accept and agree to such hiring, engagement, and
employment. Employee shall serve the Company in such position fully, diligently,
competently, and in conformity with provisions of this Agreement and the
corporate policies of the Company as they presently exist, and as such policies
may be amended, modified, changed, or adopted during the Period of Employment,
as hereinafter defined.
During the Period of Employment Employee shall also serve as the Senior
Vice President Chief Financial Officer and Secretary of each subsidiary or
affiliate of the Company that is now or that becomes a part of Dynatec
International, Inc. As used in this Agreement, the term "Dynatec" shall mean and
refer to the Company and the Company's subsidiaries and affiliates from time to
time.
Subject to specific elaboration by the Board of Directors of the Company
as to the duties (which shall be consistent herewith and with Employee offices
provided for hereunder) that are to be performed by Employee and the manner in
which such duties are to be performed, the duties of Employee shall entail those
duties customarily performed by a Senior Vice President, Chief Financial Officer
and Secretary of a company with a sales volume and the number of employees
commensurate with those of the Company. Provided, however, that at all times
during the Period of Employment, Employee shall perform those duties and fulfill
those responsibilities and refrain from those activities that are reasonably
prescribed or proscribed by the Board of Directors of the Company to be
performed or refrained from by his consistent with his positions with the
Company.
Employee shall be responsible and report only to the Company's
Chairman/Chief Executive Officer and President.
Throughout the Period of Employment, Employee shall devote his full
time, energy, and skill to the performance of his duties for the Company and for
the benefit of the Company. The foregoing notwithstanding, Employee shall be
permitted to (i) engage in charitable and community affairs, (ii) act as a
director of any corporations or organizations outside of Dynatec not in
competition with the Company and to manage such investments, not to exceed three
(3) in number, and receive compensation therefore, and (iii) to make investments
of any character in any business or businesses not in competition with the
Company or any member of Dynatec and to manage such investments (but not be
involved in the day to day operations of any such business), provided, in each
case and collectively, that the same does or do not constitute or involve
Employee in a conflict of interest vis-(-vis the Company or interfere with the
performance of Employee's duties under this Agreement.
Employee shall exercise due diligence and care in the performance of his
duties for and the fulfillment of his obligations to the Company under this
Agreement.
The Company shall furnish Employee with office, secretarial and other
facilities and services as are reasonably necessary or appropriate for the
performance of Employee's duties hereunder and consistent with his position as
the Senior Vice President, Chief Financial Officer and Secretary of the Company.
2. PERIOD OF EMPLOYMENT.
The Period of Employment (as defined below) shall, unless sooner terminated
as provided herein, be the four (4) year period commencing on the date of
execution of this Agreement.
Unless the Company gives notice of termination as provided under this
Agreement, this Agreement will automatically renew at the end of the initial
four (4) year period described above from the execution of this Agreement for a
successive three (3) year period.
3. COMPENSATION.
(a) BASE SALARY. During the Period of Employment, the Company shall pay
Employee, and Employee agrees to accept from the Company, in payment for his
services a base salary of One Hundred Forty Thousand Dollars ($140,000.00) per
year ("Base Salary"), payable in equal semi-monthly installments or at such
other time or times as Employee and the Company shall agree. In addition, the
Company shall pay Employee, and Employee agrees to accept from the Company, in
payment for his services as Secretary to the Board of Directors, compensation,
an amount which equals Ten Thousand Dollars ($10,000.00) per year, payable in
equal quarterly installments. Upward adjustment to the Base Salary shall be
considered by the Company's Board of Directors not less frequently than
annually. The Company's Board of Directors at any time or times may, but shall
have no obligation to, supplement Employee's salary by such bonuses and/or other
special payments and benefits as the Board of Directors of the Company in its
sole and absolute discretion may determine.
(b) INCENTIVE COMPENSATION. During the Period of Employment, Employee
shall: (i) Immediately participate in any incentive compensation plan, including
but not limited to, the Company's stock option plan(s) adopted by the Company;
or
4. FRINGE BENEFITS. During the Period of Employment, Employee shall be
entitled to the following fringe benefits.
(a) BENEFIT PLANS. Employee shall be entitled to participate in all benefit
plans and programs generally available to all other senior management employees
of the Company or to all employees of the Company working in Salt Lake City,
Utah, subject to any restrictions specified in such plans and to receive such
other benefits and conditions of employment as are provided to all other senior
officers or executives of the Company as of the date of this Agreement,
including, but not limited t 100% paid health insurance, life insurance, 401(k)
and qualified sick plans.
(c) VACATION AND OTHER LEAVE. Employee shall be entitled to such amounts of
paid vacation and other leave, but not less than three (3) weeks vacation per
twelve-month period of employment, as from time to time may be allowed to the
Company's senior management personnel generally, with such vacation to be
scheduled and taken in accordance with the Company's standard vacation policies
applicable to such personnel.
(d) VESTING ON DEATH OR DISABILITY. Upon any termination of this Agreement
and Employee's employment hereunder by reason of Employee's death or Permanent
Disability, as defined in Section 7(b) ("Death or Disability - Definition of
Permanently Disabled and Permanent Disability"), provided that the terms and
provisions of such plan and applicable law permit, any theretofore deferred or
unvested portion of any award made to Employee in respect of any retirement,
pension, profit sharing, l term incentive, and similar plans automatically shall
become fully vested in Employee and shall be nonforfeitable, and shall continue
in effect and be redeemable by or payable to Employee (or his designated
beneficiary or estate) at the time and on the same conditions as would have
applied had Employee's employment not been so terminated. It is expressly
provided, however, that nothing in this Section 4(d) shall obligate the Company
to provide full vesting upon death or disability in connection with
participation by Employee in the equity plan or arrangement contemplated under
Section 4(b) ("Fringe Benefits-Equity Plan"), further, the provisions governing
payment of any incentive compensation payable to Employee pursuant to the
incentive compensation plan(s) referred to in Section 3(b)
("Compensation-Incentive Compensation") shall govern any payment of incentive
compensation due thereunder in the event of Employee's death or disability.
5. BUSINESS EXPENSES AND AUTOMOBILE ALLOWANCE. During the Period of
Employment, the Company shall pay, or in case paid by Employee in the first
instance, reimburse Employee for, any and all necessary, customary, and usual
expenses incurred by him in connection with the performance of his duties
hereunder, including, without limitation, all traveling expenses, and
entertainment expenses, upon submission of appropriate vouchers and
documentation.
During the Period of Employment, Employee shall be entitled to receive
an automobile allowance and reimbursement for expenses associated with the
operation and maintenance of an automobile which is comparable to that of the
other senior officers or executives automobiles'. The Company will reimburse
Employee upon presentation of vouchers and documentation for any such
operational and maintenance expenses that are consistent with the usual
accounting procedures of the Company.
6. NO OTHER BENEFITS OR COMPENSATION. Employee, as a result of his
employment by the Company, shall be entitled to only the compensation and
benefits provided for in this Agreement, subject to the terms thereof, and no
others, to the extent that additional future benefits or compensation is
provided to all other senior officers or executives of the Company.
7. DEATH OR DISABILITY.
(a) TERMINATION OF EMPLOYMENT. If Employee dies during the Period of
Employment, Employee's employment shall automatically cease and terminate as of
the date of Employee's death.
If Employee becomes Permanently Disabled (as hereinafter
defined) while employed by the Company, (i) Employee's employment and the
Company's obligations hereunder, including the payment of Base Salary pursuant
to Section 3(a) ("Compensation-Base Salary") shall continue for a period of
one-hundred twenty (120) days from the date on which the Employee is determined
to be Permanently Disabled ("Employee s Disability Date"), and (ii) one hundred
twenty (120) days after the Employee's Disability Date, Employee's employment
and all obligations of the Company hereunder shall automatically cease and
terminate.
In the case of Employee's death or Permanent Disability (as hereinafter
defined), the Company shall be obligated to pay to Employee (or to Employee s
estate in the case of Employee's death) any Base Salary and any incentive
compensation accrued to Employee as of the date of the Employee's death, or in
the case of Employee's Permanent Disability, as of the Employee's Disability
Date. In the event Employee's employment is terminated on account of Employee's
Permanent Disability, he shall, so long as his Permanent Disability continues,
remain eligible for all benefits provided under any long-term disability
programs of the Company in effect at the time of such termination, subject to
the terms and conditions of any such programs, as the same may be changed,
modified, or terminated for or with respect to all senior management personnel
of the Company.
(b) DEFINITION OF PERMANENTLY DISABLED AND PERMANENT DISABILITY. For
purposes of this Agreement (other than Sections 4 (a) ("Fringe Benefits-Benefit
Plans"), 4 (d) ("Fringe Benefits-Vesting on Death or Disability"), and the
provisions relating to disability insurance contained in the last sentence of
Section 7(a) ("Death or Disability-Termination of Employment"), the terms
"Permanently Disabled" and "Permanent Disability" shall mean Employee's
inability, because of physical or mental illness or injury, to perform
substantially all of his customary duties pursuant to this Agreement, and the
continuation of such disabled condition for a period of one hundred twenty (120)
continuous days, or for not less than one hundred eighty (180) days during any
continuous twenty-four (24) month period. Whether Employee is Permanently
Disabled shall be certified to the Company by a Qualified Physician (as
hereinafter defined), or if requested by Employee a panel of three Qualified
Physicians. If Employee requests such a panel, Employee and the Company shall
each select a Qualified Physician who together shall then select a third
Qualified Physician. The determination of the individual Qualified Physician or
the panel, as the case may be, shall be binding and conclusive for all purposes.
As used herein, the term "Qualified Physician" shall mean any medical doctor who
is licensed to practice medicine in the State of Utah and is reasonably
acceptable to each of Employee and the Company. Employee and the Company may in
any instance, and in lieu of a determination by a Qualified Physician or panel
of Qualified Physicians, agree between themselves that Employee is Permanently
Disabled. The terms Permanent Disability and Permanently Disabled as used herein
may have meanings different from those used in any disability insurance policy
or program maintained by Employee or the Company.
8. TERMINATION BY THE COMPANY:
(a) TERMINATION FOR CAUSE. The Company, by action of its Board of
Directors, may, by providing written notice to Employee, terminate the
employment of Employee under this Agreement for "cause" at any time. The term
"cause" for purpose of this Agreement shall mean:
(i) The refusal of Employee to implement or adhere to lawful policies or
directives of the Board of Directors of the Company consistent with this
Agreement; or
(ii) Employee's conviction of or entrance of a plea of nolo contendere to (A) a
felony, (B) to any other crime, which other crime is punishable by
incarceration for a period of one (1) year or longer, or (C) other conduct
of a criminal nature that may have an adverse impact on the Company s
reputation and standing in the community; or
(iii)conduct that is in violation of Employee's common law duty of loyalty to
the Company; or
(iv) theft, embezzlement, or other criminal misappropriation of funds by
Employee from the Company; or
(v) any breach of or Employee's failure to fulfill any of Employee's
obligations, covenants, agreements, or duties under this Agreement.
Provided, however, that "cause" pursuant to clause (i) or (v) shall not be
deemed to exist unless the Company has given Employee written notice thereof
specifying in reasonable detail the facts and circumstances alleged to
constitute "cause", and thirty (30) days after such notice such conduct or
circumstances has not entirely ceased or been entirely remedied. If Employee's
employment is terminated for "cause," the termination shall take effect upon the
effective date (pursuant to Section 24 ("Notices")) of written notice of such
termination to Employee. In the event Employee's employment is terminated for
"cause," then except for unpaid accrued vacation, the Company shall have no
obligation to pay Employee any amounts, including, but not limited to Base
Salary, for or with respect to any period after the effective date of the
termination of Employee's employment for "cause."
If the Company attempts to terminate Employee's employment pursuant to
this Section 8(a) and it is ultimately determined that the Company lacked
"cause," the provisions of Section 8(b) ("Termination by the Company-Termination
Without Cause") shall apply, and Employee's sole and exclusive remedy for such
breach of this Agreement by the Company and/or any other damages that Employee
shall have suffered or incurred of any nature whatsoever, shall be to receive
the payments expressly called for by Section 8(b) ("Termination by the
Company-Termination Without Cause") with interest on any past due payments at
the rate of eight percent (8%) per year from the date on which the applicable
payment would have been made pursuant to Section 8(b) ("Termination by the
Company-Termination Without Cause") plus Employee's costs and expenses
(including but not limited to reasonable attorneys' fees) incurred in connection
with such dispute.
(b) TERMINATION WITHOUT CAUSE. The Company may, with or without reason,
terminate Employee's employment under this Agreement without "cause" at any
time, by providing Employee sixty (60) days prior written notice of such
termination. If Employee's employment is terminated pursuant to this Section
8(b), Employee shall not be obligated to render services to the Company
following the effective date of such notice (the "Notice Date") except such
services as are requested by the Co pursuant to Section 11 ("Transition Period
Services"), and as its sole and exclusive obligation and duty to Employee
resulting directly or indirectly from the termination of Employee's employment
with the Company and in full and complete settlement of any and all claims that
Employee may have or claim to have arising directly or indirectly out of the
termination of his employment with the Company, the Company shall pay Employee,
as severance pay, an amount (the "Severance Amount") equal to the product of
multiplying the then current monthly base salary by twelve (12) monthly periods
(the "Severance Period"). The Severance Amount shall be payable by the Company
to Employee in an amount equal to the Base Salary on the Notice Date. The
Company shall also pay to the Employee a portion of any discretionary bonus (the
"Bonus Portion"), as determined by the Company's Board of Directors, referred to
in Section 3(a) ("Compensation-Base Salary"), that, but for the termination of
Employee's employment, would have been paid to Employee for or with respect to
the calendar year in which Employee's employment is terminated. The Bonus
Portion shall consist of that percentage of the said discretionary bonus
determined by dividing the number of full or partial calendar months during the
calendar year in which Employee's employment is terminated that Employee was in
the employ of the Company by twelve (12). Until the end of the Severance Period
or until Employee is gainfully employed by another employer, which ever time
period is less, the Company shall allow Employee to continue participation in
the Company s group health insurance plan at the Company's expense. In
accordance with all applicable laws, Employee shall be extended all COBRA rights
and benefits at the end of the Severance Period.
9. TERMINATION BY EMPLOYEE.
(a) TERMINATION-WITHOUT GOOD REASON. Employee shall have the right to terminate
this Agreement and his employment hereunder at any time upon thirty (30)
days prior written notice of such termination to the Company. Except as
expressly set forth in Section 11 ("Transition Period Services"), upon the
effective date of any such termination all obligations and rights of
Employee and the Company hereunder shall terminate and cease.
(b) TERMINATION-WITH GOOD REASON. If the Company:
(i) fails to provide Employee with the compensation and benefits called for by
this Agreement; or
(ii) assigns Employee to a lower organizational level than the level at which he
is on the date of this Agreement assigned, or substantially diminishes
Employee's assignment, duties, responsibilities, or operating authority
from those specified in Section 1 ("Duties"); or
(iii) fails to implement an incentive compensation plan required by Section
3(b) ("Compensation-Incentive Compensation"); or
(iv) breaches this Agreement and such breach continues for a period of thirty
(30) days after written notice thereof given by Employee to the Company,
then any one or more of such circumstances shall constitute "Good Reason",
and, subject to the provisions of Section 11 ("Means and Effect of
Termination"), Employee shall have the right to terminate this Agreement
and his employment hereunder for Good Reason, if, sixty (60) days after the
effective date of Employee's notice to the Company of such circumstances
constituting Good Reason, such circumstances continue to exist, and for all
purposes of this Agreement any such termination of this Agreement by
Employee shall have the same effects under this Agreement as the
termination of the Employee's employment under this Agreement by Company
without "cause."
10. TERMINATION BY EFFECTIVE MERGER, TRANSFER OF ASSETS, DISSOLUTION OR
CHANGE OF CONTROL. This agreement shall not be terminated by voluntary or
involuntary dissolution of the Company resulting from either merger or
consolidation in which the Company is not the consolidated or surviving
corporation, or a transfer of all or substantially all of the assets of the
Company, or the sale of all or substantially all of the stock (change of
control) of the Company. In the event of any such merger, consolidation, sale or
change of control as described above; Company's rights are assigned to the
surviving or resulting corporation, which may then honor the contract with
Employee or purchase the contract from the Employee for a sum equal to four (4)
years base salary as provided by in Section 3(a) ("Compensation - Base Salary");
adjusted for the then current base salary amount.
11. MEANS AND EFFECT OF TERMINATION. Any termination of Employee's
employment under this Agreement shall be communicated by written notice of
termination from the terminating party to the other party. The notice of
termination shall indicate the specific provision(s) of this Agreement relied
upon in effecting the termination and shall set forth in reasonable detail the
facts and circumstances alleged to provide a basis for termination, if any such
basis is required by the applicable provision(s) of this Agreement. Any notice
of termination by the Company shall be approved by a resolution duly adopted by
a majority of the directors of the Company then in office. The burden of
establishing the existence of "cause" or Good Reason shall be upon the
terminating party. If Employee's employment is terminated by either party, then
promptly after the effective date of such termination or in the manner and at
the time or times provided in the relevant Section of this Agreement, the
Company promptly shall provide and pay to Employee, or in case of his death his
estate or heirs, all compensation, benefits, and reimbursements due or payable
to Employee for the period to the effective date of the termination. To the
extent permitted by applicable law, the calendar month in which Employee's
employment is terminated shall be counted as a full month in determining amount
and vesting of any benefits under benefit plans of the Company.
12. TRANSITION PERIOD SERVICES. In the event Employee's employment is
terminated by the Company pursuant to section 8(b) ("Termination by the
Company-Termination Without Cause") or by Employee pursuant to Section 9(a)
("Termination by Employee-Without Good Reason"), if requested by the Company in
writing, Employee shall render such services, on a part-time basis for a period
not to exceed thirty (30) days after the effective date of the notice of
termination (whether given by the Company or by Employee), as the Company's
Board of Directors reasonably requests for transition purposes. Employee shall
receive no compensation for such services, other than the payment of Base Salary
as provided in Section 8(b) ("Termination by the Company-Termination Without
Cause") and reimbursement for expenses incurred by Employee in providing such
services as provided in, and subject to the provisions of, Section 5 ("Business
Expenses and Automobile Allowance")
13. ASSIGNMENT. This Agreement is personal in its nature and neither of
the parties hereto shall, without the consent of the other, assign or transfer
this Agreement or any rights or obligations hereunder; provided, however, that,
in the event of the merger, consolidation, or transfer or sale of all or
substantially all of the assets of the Company with or to any other individual
or entity, this Agreement shall, subject to the provisions hereof, be binding
upon and inure to the benefit of such successor and such successor shall
discharge and perform all the promises, covenants, duties, and obligations of
the Company hereunder, also provided by Section 10 ("Termination - Effective
Merger, Transfer of Assets, Dissolution or Change of Control").
14. GOVERNING LAW. This Agreement and the legal relations hereby created
between the parties hereto shall be governed by and construed under and in
accordance with the internal laws of the State of Utah, which internal laws
exclude any law or rule of the State of Utah, or any interpretation
thereof, that would require or call for the application of the laws of any
other state or jurisdiction hereto.
15. ENTIRE AGREEMENT. Except with respect to final agreement regarding
those open incentive compensation matters described in Section 3(b)
("Compensation-Incentive Compensation") and the equity plan or arrangement
contemplated under Section 4(b) ("Fringe Benefits-Equity Plan"), this Agreement
embodies the entire agreement of the parties hereto respecting the matters
within its scope. This Agreement supersedes all prior agreements of the parties
hereto on the subject matter hereof. Any prior negotiations, correspondence,
agreements, proposals, or understandings relating to the subject matter hereof
shall he deemed to be merged into this Agreement and to the extent inconsistent
herewith, such negotiations, correspondence, agreements, proposals, or
understandings shall be deemed to be of no force or effect. There are no
representations, warranties, or agreements, whether express or implied, or oral
or written, with respect to the subject matter hereof, except as set forth
herein.
This Agreement shall not be modified by any oral agreement, either express
or implied, and all modifications hereof shall be in writing and be signed by
the parties hereto. The provisions of this and the immediately preceding
sentence themselves may not be modified, either orally or by conduct, either
express or implied, and it is the declared intention of the parties hereto that
no provision of this Agreement, including said two sentences, shall be
modifiable in any way or manner whatsoever other than through a written document
signed by the parties hereto.
16. WAIVER. Failure to insist upon strict compliance with any of the terms,
covenants, or conditions hereof shall not be deemed a waiver of such term,
covenant, or condition, nor shall any waiver or relinquishment of, or
failure to insist upon strict compliance with, any right or power hereunder
at any one or more times be deemed a waiver or relinquishment of such right
or power at any other time or times.
17. NUMBER AND GENDER. Where the context requires, the singular shall include
the plural, the plural shall include the singular, and any gender shall
include all other genders.
18. SECTION HEADINGS. The section headings in this Agreement are for the
purpose of convenience only and shall not limit or otherwise affect any of
the terms hereof.
19. DISPUTE RESOLUTION.
(a) NEGOTIATION AND MEDIATION. In the event any dispute arises
hereunder, the parties shall first attempt to resolve the dispute by negotiation
in good faith. If the dispute cannot be timely resolved through negotiation, the
parties will, before resorting to any of their remedies at law or in equity, try
to settle the dispute in good faith by mediation in Salt Lake City, Utah or such
other location as the parties may agree, under the then operative mediation
rules of the American Arbitration Association or such other mediation tribunal
or private mediator or medication services provider as the parties agree. The
mediator shall be such person as the parties mutually agree, but if the parties
have failed to agree on a mediator within seven (7) days after the date on which
any party demands that the parties proceed to mediation, the mediator shall be
selected by the American Arbitration Association or such other mediation
services provider as the parties agree.
(b) OTHER REMEDIES. Failing settlement of the dispute by negotiation or
mediation, the parties shall, unless they mutually agree to resolve the
dispute finally by arbitration, be entitled to pursue their legal and
equitable remedies (subject to the provisions of Section 20 ("Liquidated
Damages-Breach by the Company") in any court having jurisdiction.
20. LIQUIDATED DAMAGES-BREACH BY THE COMPANY. Because the damages
suffered by Employee in such an event would be difficult or impossible to
estimate, establish, ascertain, or prove, and in order to provide Employee with
a remedy in such an event without the necessity and associated cost of Employee
having to establish or prove the damages suffered by Employee as a result
thereof (which remedy the parties hereto have and do agree would be appropriate
and adequate compensation to Employee in such event), in the event that this
Agreement and Employee's employment hereunder shall be terminated (whether by
the Company or Employee) and thereafter Employee shall prevail in any dispute
between Employee and the Company relative to, involving, or concerning the
legality of or justification for the termination of this Agreement and
Employee's employment hereunder and any other issues or matters directly or
indirectly arising out of or in connection with such termination and Employee's
employment by the Company, Employee shall be entitled to the continued payment
of the Base Salary as provided in Section 8(b) ("Termination by the
Company-Termination Without Cause") as liquidated and exclusive damages and not
as a penalty, and in such case this Agreement and Employee's employment
hereunder, shall for all purposes be treated as having been terminated by the
Company without "cause" pursuant to Section 8(b) ("Termination by the
Company-Termination Without Cause").
In the event Employee files any claim, complaint, charge, action, or
lawsuit against the Company or its employees, agents, officers, directors, or
any other person affiliated or associated with the Company, with any
governmental agency, any state or federal court, or any mediation or arbitration
body or group, for or with respect to a matter, claim, or incident, known or
unknown, which has occurred or arisen or which shall hereafter occur or arise
relative to, involving, or concerning the termination of this Agreement and
Employee's employment hereunder (whether as a result of action of Employee or
the Company) and any other issues or matters directly or indirectly arising out
of or in connection with such termination and Employee's employment by the
Company, and in such claim, complaint, action, charge, or lawsuit, Employee
alleges or asserts the right to recover, receive, or be awarded damages from the
Company or its employees, agents, officers, directors, or any other person
affiliated or associated with the Company in addition to or in lieu of the
liquidated damages expressly provided for in this Section 20, Employee hereby
stipulates, agrees, and consents to the dismissal or withdrawal, with prejudice,
of any such claim, complaint, action, charge, or lawsuit (collectively, a
"Dismissable Claim"). In the event that Employee files any Dismissable Claim,
Employee shall be liable to the party or parties against whom the Dismissable
Claim is filed (the "Nonfiling Party") and shall indemnify and save the
Nonfiling Party harmless from all costs and expenses, including, but not limited
to, attorneys fees, incurred by the Nonfiling Party and/or the Nonfiling Party s
officers, agents, employees, directors, and/or any other person affiliated or
associated with the Nonfiling Party, if any, in defending or responding to any
such Dismissable Claim, regardless of whether such defense or response is before
a state or federal court or administrative agency or a mediation or arbitration
body and regardless of who might ultimately be deemed to be the prevailing party
as to any such Dismissable Claim.
21. ATTORNEY'S FEES. Employee and the Company agree that in any dispute
resolution proceedings arising out of this Agreement, the prevailing party shall
be entitled to its or his reasonable attorney's fees and costs incurred by it or
his in connection with resolution of the dispute in addition to any other relief
granted.
22. INDEMNIFICATION. If Employee is made a party to, is threatened to be
made a party to, or is otherwise involved in any action, suit, or proceeding,
whether civil, criminal, administrative or investigative (a "Proceeding") by
reason of the fact that he is or was a director, officer, or employee of the
Company or is or was serving at the request of the Company as a director,
officer, employee, or agent of another corporation or of a partnership, joint
venture, trust, or other enterprise, including service with respect to employee
benefit plans, whether before, during or after expiration or termination of this
Agreement, the Company shall indemnify and hold Employee harmless to the fullest
extent authorized by the Utah General Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the Company to provide broader indemnification
rights than such law permitted the Company to provide prior to such amendment),
against all expense, liability, and loss (including attorneys fees, judgment
fines, ERISA excise taxes or penalties and amounts paid in settlement)
reasonably incurred or suffered by Employee in connection therewith, and such
indemnification shall continue after Employee ceases to be a director, officer,
employee, or agent of the Company and shall inure to the benefit of Employee's
heirs, executors, and administrators. The right to indemnification conferred
hereby shall include the right to be paid by the Company the reasonable expenses
incurred in defending any Proceeding in advance of its final disposition as such
expenses are incurred. The indemnification provided herein shall not be deemed
exclusive of any other rights to which Employee may be entitled under the
Certificate of Incorporation, Bylaws, any agreement, or vote of stockholders or
disinterested directors of the Company, or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such office
or position, and shall continue with respect to action in such capacities even
if Employee has thereafter ceased to be a director, officer, employee, or agent
of the Company, and shall inure to the benefit of Employee's heirs, executors
and administrators. Except in the case of fraudulent conduct or theft,
embezzlement, or other criminal misappropriation of funds by Employee, then
nothing in this Agreement waives the Company's obligations under this paragraph,
even if Employee is terminated.
23. SEVERABILITY. In the event that a court of competent jurisdiction
determines that any portion of this Agreement is in violation of any statute or
public policy, then only the portions of this Agreement which violate such
statute or public policy shall be stricken, All portions of this Agreement which
do not violate any statute or public policy shall continue in full force and
effect. Furthermore, any court order striking any portion of this Agreement
shall modify the stricken terms as narrowly as possible to give as much effect
as possible to the intentions of the parties under this Agreement.
24. NOTICES. All notices under this Agreement shall be in writing and
shall be either personally delivered or mailed postage prepaid, by certified
mail, return receipt requested, (a) if to the Company, to it at 0000 Xxxxx Xxxxx
Xxxxx, Xxxx Xxxx Xxxx, Xxxx 00000 Attention: President or (b) if to Employee to
him at 0000 Xxxxx Xxxxx Xxxxx, Xxxx Xxxx Xxxx, Xxxx 00000 by the same means, or
in either party's case to such other address or to the attention of such person
as the party has specified by prior written notice to the other party. Notice
shall be effective when personally delivered, or five (5) business days after
being so mailed.
25. COUNTERPARTS. This Agreement may be executed in counterparts
collectively containing the signatures of each of the parties.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
by its duly authorized officer, and Employee has hereunto signed this Agreement,
on the date first written above.
DYNATEC INTERNATIONAL, INC and SOFTALK, INC.(the "Company")
By:/S/F. Xxxxx Xxxx
Its:President
/s/Xxxx X. Xxxxx
XXXX X. XXXXX ("Employee")
