EMPLOYMENT AGREEMENT
This Employment Agreement (hereinafter "Agreement) is made as of the 6th day of
January 2000 by and between XxxxxXxxxxxxx.xxx, Inc. ("PrimeHoldings"), a
Delaware corporation, and Xxxxxx X. Xxxxxxxxx, a resident of Utah (the
"Employee").
WITNESSETH:
WHEREAS, the Employee has been employed by and a key executive of PrimeHoldings
in charge of all of its business and operations, including those of it
subsidiaries; and
WHEREAS, by unanimous agreement by written consent of the Board of Directors of
PrimeHoldings (the "Board"), the Employee has been duly elected President and
Chief Executive Officer of PrimeHoldings; and
WHEREAS, PrimeHoldings desires to continue to employ the Employee and the
Employee is willing to continue such employment, all on the terms hereinafter
set forth;
NOW, THEREFORE, the parties agree as follows:
1. Employment. PrimeHoldings hereby employs the Employee as its President
and Chief Executive Officer on the terms hereinafter set forth for a
period of three (3) years from January 1, 2000, and the Employee hereby
accepts such employment.
2. Duties. The Employee will, to the best of his ability, render services
in such executive, supervisory and general administrative capacities as
the Board shall from time to time determine. Without limiting the
foregoing, the Employee shall devote his time, energy and ability to
perform his duties and shall use his best efforts to promote
PrimeHoldings' interests in accordance with policies established by and
under the direction of the Board. If elected a director or officer of
PrimeHoldings or of any affiliate or subsidiary of PrimeHoldings, the
Employee will serve in that capacity without compensation other than as
expressly provided in this Agreement or any amendment hereto.
3. Exclusivity. The Employee will devote all of his working time to
performing his duties under this Agreement, and during his employment
with PrimeHoldings the Employee will not, without the express written
consent of the Board: (i) act for his own account in any manner which
is competitive with any of the businesses of PrimeHoldings (including
any affiliate or subsidiary of PrimeHoldings), or which would interfere
with the performance of his duties under this Agreement, or (ii) serve
as an officer, director or employee of or advisor to any other business
entity unaffiliated with PrimeHoldings, or (iii) invest or have any
financial interest, direct or indirect, in any business competitive
with any of the businesses of PrimeHoldings (including any affiliate or
subsidiary of PrimeHoldings), provided, however, that notwithstanding
the foregoing, the Employee may own up to 1% of the outstanding equity
securities of any company engaged in any such competitive business
whose shares are listed on a national securities exchange or regularly
quoted in an over-the-counter market by one or more members of a
national or an affiliated securities association. The Employee will be
deemed to have an indirect financial interest in any business in which
any of the following has any financial interest: the Employee's spouse;
any lineal descendant or ancestor of the Employee; any brother or
sister of the Employee; and any child (but not grandchild) of any such
brother or sister.
4. Compensation.
4.1 Salary. During the first year of his employment, and unless
adjusted by official action of the Board, PrimeHoldings will
pay the Employee a salary at the rate of $120,000.00 per year.
Thereafter the Board will review the Employee's salary at
least annually. The Employee will not be entitled to overtime
or other additional compensation as a result of services
performed during evenings, weekends, holidays or at other
times.
4.2 Deductions. PrimeHoldings will deduct and withhold from any
compensation payable to the Employee under this Agreement such
amounts as PrimeHoldings is required to deduct and withhold by
law. PrimeHoldings may also deduct and withhold from any such
compensation, to the extent permitted by law, such amounts as
the Employee may owe to PrimeHoldings.
4.3 Automobile Allowance. PrimeHoldings will provide the Employee
an automobile allowance of $1,000.00 per month.
4.4 Termination Compensation. If PrimeHoldings terminates Employee
for any reason, with or without cause, Employee shall be
entitled to termination compensation at Employee's
then-current salary and according the number of years of
employment with PrimeHoldings or any subsidiary of
PrimeHoldings, including any employment prior to the execution
of this Agreement, as follows:
One year - 6 months salary
Two years - 12 months salary
Three years - 24 months salary
Four years - 36 months salary
5. Expenses. PrimeHoldings will reimburse the Employee for all proper,
normal and reasonable expenses incurred by the Employee in performing
his obligations under this Agreement upon the Employee furnishing
PrimeHoldings with satisfactory evidence of such expenditures. The
Employee will not incur any unusual or major expenditure without the
Board's prior written approval.
6. Benefits.
6.1 Health Insurance. PrimeHoldings will provide the Employee, at
PrimeHoldings' expense, with medical, hospital and disability insurance that is
not less favorable than that which it provides to any other employee of
PrimeHoldings.
6.2 Vacation. The Employee will be entitled to four (4) weeks paid
vacation during each year under this Agreement, in addition to
any holidays that PrimeHoldings observes. Unused vacation time
in any year will accrue and may be added to vacation time for
any following year or, at the Employee's option, may be paid
as a cash payment in an amount equal to the amount of annual
salary attributable to the period of time of unused vacation.
6.3 Illness. The Employee's salary and other rights and benefits
under this Agreement will not be suspended or terminated
because the Employee is absent from work due to illness,
accident or other disability; but PrimeHoldings may deduct
from the Employee's salary under Section 4.1 any payment
received by the Employee under any disability insurance which
PrimeHoldings provides the Employee pursuant to Section 6.1.
The provisions of this Section 6.3 will not limit or affect
the rights of PrimeHoldings under Section 7.
7. Death and Disability.
7.1 If the Employee dies prior to expiration of the term of this
Agreement, the Agreement shall immediately terminate and
PrimeHoldings will, within ten days, pay Employee's personal
representative an amount equal to Employee's salary through
the last day of the calendar month in which the Employee dies
plus two additional months salary.
7.2 If the Employee is unable to perform substantially all of his
duties under this Agreement because of illness, accident or
other disability (collectively referred to as "Disability"),
and the Disability continues for more than three consecutive
months or an aggregate of more than six months during any
12-month period, then PrimeHoldings may suspend its
obligations to the Employee on or after the expiration of said
3- or 6-month period until PrimeHoldings terminates such
suspension as hereinafter provided. PrimeHoldings will
terminate any such suspension after the Disability has,
in fact, ended and after it has received written notice from
the Employee that the Disability has ended and that he is
ready, willing and able to perform fully his services under
this Agreement. Termination of such suspension will be no
later than one week after PrimeHoldings has received such
notice from the Employee. If any one or more periods of
suspension continue pursuant to the provisions of this Section
for three consecutive months or six months in the aggregate,
then PrimeHoldings may at any time prior to termination of the
then current period of suspension, terminate the employee's
employment hereunder.
If the Employee or PrimeHoldings asserts at any time that the
Employee is suffering a Disability, PrimeHoldings may cause
the Employee to be examined by a doctor or doctors selected by
PrimeHoldings, and the Employee will submit to all required
examinations and will cooperate fully with such doctor or
doctors and, if requested to do so, will make available to
them his medical records. The Employee's own doctor may be
present.
8. Results of The Employee's Services.
8.1 PrimeHoldings will be entitled to and will own all the results
and proceeds of the Employee's services under this Agreement,
including, without limitation, all rights throughout the world
to any copyright, patent, trademark or other right and to all
ideas, inventions, products, programs, procedures, formats and
other materials of any kind created or developed or worked on
by the Employee during his employment by PrimeHoldings; the
same shall be the sole and exclusive property of
PrimeHoldings; and the Employee will not have any right, title
or interest of any nature or kind therein. Without limiting
the foregoing, it will be presumed that any copyright, patent,
trademark or other right and any idea, invention, product,
program, procedure, format or material created, developed or
worked on by the Employee at any time during the term of his
employment will be a result or proceed of the Employee's
services under this Agreement. The Employee will take such
action and execute such documents as PrimeHoldings may request
to warrant and confirm PrimeHoldings' title to and ownership
of all such results and proceeds and to transfer and assign to
PrimeHoldings any rights which the Employee may have therein.
The Employee's right to any compensation or other amounts
under this Agreement will not constitute a lien on any results
or proceeds of the Employee's services under this Agreement.
8.2 PrimeHoldings will also own, and promptly on receipt thereof
the Employee will pay to PrimeHoldings, any monies and other
proceeds to which the Employee is entitled on account of
rights pertaining to any of PrimeHoldings' products or
services that the Employee acquired before the date of this
Agreement.
8.3 The Employee acknowledges that the violation of any of the
provisions of Section 8.1 will cause irreparable loss and harm
to PrimeHoldings which cannot be reasonably or adequately
compensated by damages in an action at law, and, accordingly,
that PrimeHoldings will be entitled to injunctive and other
equitable relief to enforce the provisions of that Section;
but no action for any such relief shall be deemed to waive the
right of PrimeHoldings to an action for damages.
9. Use of Employee's Name, Etc. PrimeHoldings is hereby granted the sole
and exclusive right during the term of his employment to make use of
and to permit others to make use of the Employee's name, pictures,
photographs, and other likenesses, and voice, in connection with the
advertising, publicity and exploitation of any products, or in
connection with the use or implementation of any of the Employee's
services hereunder or the proceeds thereof. This right shall continue
in perpetuity as a non-exclusive and non-compensable right after
termination of his employment for any reason whatsoever including,
without limitation, termination by either party for cause or wrongful
termination by either party. In no event, however, shall the Employee,
directly or indirectly, be represented as endorsing any product or
commodity without the Employee's written consent.
10. Insurance. If PrimeHoldings desires at any time or from time to time to
apply for, in its own name or otherwise, but at its expense, life,
health, accident or other insurance covering the Employee,
PrimeHoldings may do so and may take out such insurance for any sum
that it deems desirable. The Employee will have no right, title or
interest in or to such insurance. The Employee nevertheless will assist
PrimeHoldings in procuring the same by submitting from time to time to
the customary medical, physical and other examinations, and by signing
such applications, statements and other instruments as any reputable
insurer may require.
11. Uniqueness of Services. The Employee acknowledges that his services
hereunder are of a special, unique, unusual, extraordinary and
intellectual character, the loss of which cannot be reasonably or
adequately compensated by damages in an action at law. Accordingly,
PrimeHoldings will be entitled to injunctive and other equitable relief
to prevent or cure any breach or threatened breach of this Agreement by
the Employee, but no action for any such relief shall be deemed to
waive the right of PrimeHoldings to an action for damages.
12. Negative Covenants.
12.1 The Employee will not, during or after the term of this
Agreement, disclose to any third person or use or take any
personal advantage of any confidential information or any
trade secret of any kind or nature obtained by him during the
term hereof or during his employment by PrimeHoldings.
12.2. To the full extent permitted by law, the Employee will not for
a period of two years following the termination of his
employment with PrimeHoldings:
(i) attempt to cause any person, firm or corporation
which is a customer of or has a contractual
relationship with PrimeHoldings (or any affiliate or
subsidiary of PrimeHoldings) at the time of the
termination of his employment to terminate such
relationship with PrimeHoldings (or any affiliate or
subsidiary of PrimeHoldings), and this provision
shall apply regardless of whether such customer has a
valid contractual arrangement with PrimeHoldings (or
any affiliate or subsidiary of PrimeHoldings);
(ii) attempt to cause any employee of PrimeHoldings (or
any affiliate or subsidiary of PrimeHoldings) to
leave such employment;
(iii) engage any person who was an employee of
PrimeHoldings (or any affiliate or subsidiary of
PrimeHoldings) at the time of the termination of his
employment or cause such person otherwise to become
associated with the Employee or with any other
person, corporation, partnership or other entity with
which the Employee may thereafter become associated;
(iv) engage in any activity or perform any services
competitive with any business conducted by
PrimeHoldings (or any affiliate or subsidiary of
PrimeHoldings), in those geographical areas in which
PrimeHoldings (or any affiliate or subsidiary of
PrimeHoldings) conducts such business, at the time of
such termination.
12.3 The Employee acknowledges that the violation of any of the
provisions of this Section 12 will cause irreparable loss and
harm to PrimeHoldings which cannot be reasonably or adequately
compensated by damages in an action at law, and, accordingly,
that PrimeHoldings will be entitled to injunctive and other
equitable relief to prevent or cure any breach or threatened
breach thereof, but no action for any such relief shall be
deemed to waive the right of PrimeHoldings to an action for
damages.
13. Governing Law; Remedies.
13.1 This Agreement has been executed in the State of Utah and
shall be governed by and construed in all respects in
accordance with the laws of the State of Utah.
13.2 Except as otherwise expressly provided in this Agreement, any
dispute or claim arising under or with respect to this
Agreement will be resolved by arbitration in Salt Lake City,
Utah, in accordance with the Rules for Commercial Arbitration
of the American Arbitration Association. The decision or award
of the arbitrator shall be final and binding upon the parties.
Any arbitral award may be entered as a judgment or order in
any court of competent jurisdiction.
13.3 Notwithstanding the provisions for arbitration contained in
this Agreement, PrimeHoldings will be entitled to injunctive
and other equitable relief from the courts as provided in
Sections 8.3, 11 and 12.3 and as the courts may otherwise
determine appropriate; and the Employee agrees that it will
not be a defense to any request for such relief that
PrimeHoldings has an adequate remedy at law. For purposes of
any such proceeding PrimeHoldings and the Employee submit to
the non-exclusive jurisdiction of the courts of the State of
Utah and of the United States located in the County of Salt
Lake, State of Utah, and each agrees not to raise and waives
any objection to or defense based on the venue of any such
court or forum non conveniens.
13.4 A court of competent jurisdiction, if it determines any
provision of this Agreement to be unreasonable in scope, time
or geography, is hereby authorized by the Employee and
PrimeHoldings to enforce the same in such narrower scope,
shorter time or lesser geography as such court determines to
be reasonable and proper under al the circumstances.
13.5 PrimeHoldings will also have such other legal remedies as may
be appropriate under the circumstance including, inter alia,
recovery of damages occasioned by a breach. PrimeHoldings'
rights and remedies are cumulative and the exercise or
enforcement of any one or more of them will not preclude
PrimeHoldings from exercising or enforcing any other right or
remedy.
14. Severability of Provisions. If any provision of this Agreement or the
application of any such provision to any person or circumstance is held
invalid, the remainder of this Agreement, and the application of such
provision other than to the extent it is held invalid, will not be
invalidated or affected thereby.
15. Waiver. No failure by PrimeHoldings to insist upon the strict
performance of any term or condition of this Agreement or to exercise
any right or remedy available to it will constitute a waiver. No breach
or default of any provision of this Agreement will be waived, altered
or modified, and PrimeHoldings may not waive any of its rights, except
by a written instrument executed by PrimeHoldings. No waiver of any
breach or default will affect or alter any term or condition of this
Agreement, and such term or condition will continue in full force and
effect with respect to any other then exiting or subsequent breach or
default thereof.
16. Miscellaneous.
16.1 This Agreement may be amended only by an instrument in writing
signed by PrimeHoldings and the Employee.
16.2 This Agreement shall be binding upon the parties and their
respective successors and assigns. PrimeHoldings may, without
the Employee's consent, transfer or assign any of its rights
and obligations under this Agreement to any corporation which,
directly or indirectly, controls or is controlled by
PrimeHoldings or is under common control with PrimeHoldings or
to any corporation succeeding to all or a substantial portion
of PrimeHoldings' business and assets, provided that
PrimeHoldings shall not be released from any of its
obligations under this Agreement, and provided further that
any such transferee or assignee agrees in writing to assume
all the obligations of PrimeHoldings hereunder. Control means
the power to elect a majority of the directors of a
corporation or in any other manner to control or determine the
management of a corporation. Except as provided above, neither
PrimeHoldings nor the Employee may, without the other's prior
written consent, transfer or assign any of its or his rights
or obligations under this
Agreement, and any such transfer or assignment or attempt
thereat without such consent shall be null and void.
16.3 All notices under or in connection with this Agreement shall
be in writing and may be delivered personally or sent by mail,
courier, fax, or other written means of communication to the
parties at their addresses and fax numbers set forth below or
to such other addresses and fax numbers as to which notice is
given:
if to PrimeHoldings: XxxxxXxxxxxxx.xxx, Inc.
0000 Xxxxx Xxxx Xxxxxx, Xxx. 000
Xxxxxxx, XX 00000
Fax: 000-000-0000
if to the Employee: Xxxxxx X. Xxxxxxxxx
0000 X. Xxxxxxxxxxx Xxx.
Xxxx Xxxx Xxxx, XX 00000
Notice will be deemed given on receipt.
16.4 Section headings are for purposes of convenient reference only
and will not affect the meaning or interpretation of any
provision of this Agreement.
16.5 This Agreement constitutes the entire agreement of the parties
and supersedes any and all prior agreements or understandings
between them.
16.6 The provisions of Sections 8, 9, 11, 12 and 13 will survive
termination of the Employee's employment with PrimeHoldings
for any reason whatsoever and regardless of fault.
IT WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
XXXXXXXXXXXXX.XXX, INC., by: EMPLOYEE:
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Xxxxx X. Xxxxxxxxxx III Xxxxxx X. Xxxxxxxxx
Vice President & Corporate Secretary
By order of the Board of Directors
