EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into
effective as of October 29, 1999 (the "Effective Date"), by and between Dynatec
International, Inc., a Utah corporation (the "Company"), and Xxxxxxx X. Xxxxxx,
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 in the capacity of Senior Vice President & Chief Financial Officer 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 administrative 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 & Chief Financial Officer of the Company.
2. Duties. The Company does hereby employ and engage the Employee as Senior Vice
President & Chief Financial Officer 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)
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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-five
Thousand Dollars ($145,000.00). 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.
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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,
provided that the total monthly expense to the Company under this Section 3.4
shall not exceed Eight Hundred Fifty Dollars ($850).
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 at such time, 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.
Notwithstanding, and without limiting, the generality of the foregoing, Employee
shall receive a grant under the Company's 1999 Stock Option and Incentive Plan
of options to purchase a total of 100,000 shares of the Company's common stock,
which options shall have a per share exercise price equal to One Hundred percent
(100%) of the fair market value of the common stock on the date of grant, which
date shall be within five (5) business days after the Effective Date. Such
options shall be subject to such additional terms and conditions as are
ordinarily and customarily part of the Company's stock option agreements,
provided that Employee acknowledges and agrees that this Section 3.6 shall not
constitute the actual grant of such options, and that no grant shall be made
until the Company delivers a definitive option agreement to Employee at the time
of grant.
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
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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. 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
October 31, 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) during the
Employment Term, in which case the provisions of Section 4.5.2 shall apply. 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 in this Agreement) 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
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4.3.5. theft, embezzlement or other criminal misappropriation of funds by the
Employee from the Company; provided, however, that cause pursuant to Sections
4.3.1 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
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disability or until the Employee begins to receive disability benefits pursuant
to any disability insurance policy of the Company, whichever occurs first.
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
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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 amount equal to three (3) 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 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 two (2) years 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
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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, 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.
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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 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,
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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
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
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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, 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: Xxxxxxx X. Xxxxxx
00 Xxxx Xxxxxx Xxx
Xxxxx Xxxxx, XX 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
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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 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.
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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
/s/
----------------------------------------
Xxxxxxx X. Xxxxxx
By: /s/
-------------------------------------
Xxxxxxxxx X. Xxxxxxxxx, Xx.
Its: Chief Executive Officer
