EXHIBIT 10.6
NEWMARK HOMES CORP.
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made as of January 1, 1998 (the
"Effective Date") by and between PACIFIC UNITED DEVELOPMENT CORP., a Nevada
corporation (the "Employer"), and XXXXXXX XXXXXXX, an individual residing in
Frisco, Texas (the "Employee").
RECITALS
The Employer, its divisions, subsidiaries, and other affiliated entities are
primarily engaged in the business of constructing single family residences. It
is the intent and purpose of the parties hereto to specify in this Agreement the
terms and conditions of Employee's employment with the Employer.
AGREEMENT
The parties, intending to be legally bound, agree as follows:
1. DEFINITIONS
For the purposes of this Agreement, the following terms have the meanings
specified or referred to in this Section 1.
"Agreement"--this Employment Agreement, as amended from time to time.
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"Base Salary"--as defined in Section 3.1(a).
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"Basic Compensation" means Base Salary and Benefits.
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"Benefits"--as defined in Section 3.1(b).
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"Board of Directors" means the board of directors of the Employer.
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"Confidential Information" means any and all intellectual property of the
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Employer (or any of its affiliates), including but not limited to:
(a) trade secrets concerning the business and affairs of the Employer (or
any of its affiliates), product specifications, data, know-how,
formulae, compositions, processes, designs, sketches, photographs,
graphs, drawings, samples, inventions and ideas, past, current, and
planned research and development, current and planned manufacturing or
distribution methods and processes, customer lists, current and
anticipated customer requirements, price lists, market studies,
business plans, computer software and programs (including object code
and source code), computer software and database technologies,
systems, structures, and architectures (and related formulae,
compositions, processes, improvements, devices, know-how, inventions,
discoveries, concepts, ideas, designs, methods and information), and
any other information, however documented, that is a trade secret
under federal, state or other applicable law; and
(b) information concerning the business and affairs of the Employer (or
any of its affiliates) (which includes historical financial
statements, financial projections and budgets, historical and
projected sales, capital spending budgets and plans, the names and
backgrounds of key personnel, personnel training and techniques and
materials), however documented; and
(c) notes, analysis, compilations, studies, summaries, and other material
prepared by or for the Employer (or any of its affiliates) containing
or based, in whole or in part, on any information included in the
foregoing.
"Disability"--as defined in Section 4.2.
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"Effective Date" means the date stated in the first paragraph of this
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Agreement.
"Employee Invention" means any idea, invention, technique, modification,
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process, or improvement (whether patentable or not), any industrial design
(whether registerable or not), any mask work, however fixed or encoded,
that is suitable to be fixed, embedded or programmed in a semiconductor
product (whether recordable or not), and any work of authorship (whether or
not copyright protection may be obtained for it) created, conceived, or
developed by the Employee, either solely or in conjunction with others,
during the Employment Period or at any time prior to the Employment Period
that Employee was an employee of Employer, or a period that includes a
portion of the Employment Period, that relates in any way to, or is useful
in any manner in, the business then being conducted or proposed to be
conducted by the Employer, and any such item created by the Employee,
either solely or in conjunction with others, following termination of the
Employee's employment with the Employer, that is based upon or uses
Confidential Information.
"Employment Period" means the term of the Employee's employment under this
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Agreement.
"Fiscal Year" means the Employer's fiscal year, as it exists on the
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Effective Date or as changed from time to time. -
"For cause"--as defined in Section 4.3.
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"Person" means any individual, corporation (including any nonprofit
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corporation), general or limited partnership, limited liability company,
joint venture, estate, trust, business trust, association, organization, or
governmental body.
"Post-Employment Period"-- as defined in Section 5.2.
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2. EMPLOYMENT TERMS AND DUTIES
2.1 EMPLOYMENT
The Employer hereby employs the Employee, and the Employee hereby accepts
employment by the Employer, upon the terms and conditions set forth in this
Agreement.
2.2 TERM
The term of the Employee's employment under this Agreement shall commence
on the Effective Date and end on December 31, 2002, unless terminated
earlier in accordance with the provisions of Section 4 herein. Employer and
Employee may extend the term of this Agreement by execution of a written
amendment hereto, setting forth the terms of such extension. If the parties
fail to execute such written amendment, but the employment relationship has
continued by mutual consent, then the terms of such employment shall be
deemed to be on a month-to-month basis.
2.3 DUTIES
The Employee will serve as President and Chief Executive Officer of the
Employer for the term of this Agreement and will have such duties as are
assigned or delegated to the Employee by the Board of Directors of
Employer. The Employee will devote his full business time, attention,
skill, and energy exclusively to the business of the Employer, will use his
best efforts to promote the success of the Employer's business, and will
cooperate fully with the Board of Directors of Employer in the advancement
of the best interests of the Employer. Nothing in this Section 2.3,
however, will prevent the Employee from engaging in additional activities
in connection with personal investments and community affairs that are not
inconsistent with the Employee's duties under this Agreement. If the
Employee is elected an officer of any of Employer's affiliates, the
Employee will fulfill his duties as such officer without additional
compensation.
3. COMPENSATION
The compensation and other benefits payable to the Employee under this
Agreement shall constitute the full consideration to be paid to the
Employee for all services to be rendered by the Employee for the Employer,
its divisions, subsidiaries and other affiliated entities.
3.1 BASIC COMPENSATION
(a) The Employee will be paid an annual salary as set forth below ("Base
Salary"), which will be payable in equal periodic installments
according to the Employer's customary payroll practices, but no less
frequently than monthly.
Calendar Year Base Salary
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1998 $250,000.00
1999 $275,000.00
2000 $300,000.00
2001 $325,000.00
2002 $350,000.00
(b) The Employee will, during the Employment Period, be permitted to
participate in such pension, profit sharing, life insurance,
hospitalization, major medical and other employee benefit plans of the
Employer that may be in effect from time to time, to the extent
Employee is eligible under the terms of those plans (collectively, the
"Benefits").
(c) Employee will be eligible to participate in an annual bonus plan,
which will be consistent with previous bonus plans, except as agreed
to between Employee and Employer at the beginning of each calendar
year (the "Bonus Plan").
4. TERMINATION
4.1 EVENTS OF TERMINATION
The Employment Period, the Employee's Basic Compensation, and any and all
other rights of the Employee under this Agreement or otherwise as an
employee of the Employer will terminate (except as otherwise provided in
this Section 4):
(a) upon the death of the Employee;
(b) upon the disability of the Employee (as defined in Section 4.2)
immediately upon notice from either party to the other;
(c) for cause (as defined in Section 4.3), immediately upon notice from
the Employer to the Employee, or at such later time as such notice may
specify; or
(d) on December 31, 2002.
4.2 DEFINITION OF DISABILITY
For purposes of Section 4.1, the Employee will be deemed to have a
"disability" if, for physical or mental reasons, the Employee is unable to
perform the essential functions of the Employee's duties under this
Agreement for 120 consecutive days, or 180 days during any twelve (12)
month period, as determined in accordance with this Section 4.2. The
disability of the Employee will be determined by a medical doctor selected
by written agreement of the Employer and the Employee upon the request of
either party by notice to the other. If the Employer and the Employee
cannot agree on the selection of a medical doctor, each of them will select
a medical doctor and the two (2) medical doctors will select a third
medical doctor who will determine whether the Employee has a disability.
The determination of the medical doctor selected under this Section 4.2
will be binding on both parties. The Employee must submit to a reasonable
number of examinations by the medical doctor making the determination of
disability under this Section 4.2, and the Employee hereby authorizes the
disclosure and release to the Employer of such determination and all
supporting medical records. If the Employee is not legally competent, the
Employee's legal guardian or duly authorized attorney-in-fact will act in
the Employee's stead, under this Section 4.2, for the purposes of
submitting the Employee to the examinations, and providing the
authorization of disclosure, required under this Section 4.2.
4.3 DEFINITION OF "FOR CAUSE"
For purposes of Section 4.1, the phrase "for cause" means: (a) the
commission of fraud, theft, embezzlement, or similar malfeasance involving
moral turpitude or the conviction of, or plea of nolo contendere to, any
felony; (b) gross negligence, nonfeasance, dishonesty, willful misconduct
or substantial failure to perform employment duties in a manner consistent
with normal standards of job performance after prior evaluation and warning
related to such standards of job performance; or (c) the appropriation (or
attempted appropriation) of a material business opportunity of the
Employer.
4.4 TERMINATION PAY
Effective upon the termination of this Agreement, the Employer will be
obligated to pay the Employee (or, in the event of his death, his
designated beneficiary as defined below) only such compensation as is
provided in this Section 4.4, and in lieu of all other amounts and in
settlement and complete release of all claims the Employee may have against
the Employer. For purposes of this Section 4.4, the Employee's designated
beneficiary will be such individual beneficiary or trust, located at such
address, as the Employee may designate by notice to the Employer from time
to time or, if the Employee fails to give notice to the Employer of such a
beneficiary, the Employee's estate.
(a) Termination by the Employer for Cause. If the Employer terminates this
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Agreement for cause, the Employee will be entitled to receive his
accrued, but unpaid, Base Salary only through the date such
termination is effective. If the Employer terminates this Agreement
for cause, as defined in Section 4.3(a) or 4.3(c), Employee shall
forfeit his rights to any payment under any Bonus Plan in which
Employee participated at the time of termination, whether or not
payments under such Bonus Plan have been accrued by Employer. If the
Employer terminates this Agreement for cause, as defined in Section
4.3(b), Employee shall be entitled to receive a pro-rated portion of
any payment under any Bonus Plan in which Employee participated at the
time of termination, based on the actual days worked by the Employee
during the fiscal year on which the Bonus Plan is based. Employee
shall not be released from the covenants contained in Section 5
hereof.
(b) Termination upon Disability. If this Agreement is terminated by either
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party as a result of the Employee's disability, as determined under
Section 4.2, the Employer will pay the Employee (i) his Base Salary
through the remainder of the calendar month during which such
termination is effective and (ii) a pro-rated portion of any payment
under any Bonus Plan in which Employee participated at the time of
termination, based on the actual days worked by the Employee during
the fiscal year on which the Bonus Plan is based.
(c) Termination upon Death. If this Agreement is terminated because of the
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Employee's death, the Employee's estate will be entitled to receive
(i) his Base Salary through the end of the calendar month in which his
death occurs and (ii) a pro-rated portion of any payment under any
Bonus Plan in which Employee participated at the time of termination,
based on the actual days worked by the Employee during the fiscal year
on which the Bonus Plan is based.
(d) Termination on December 31, 2002. If on December 31, 2002, this
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Agreement terminates because the parties have not extended the Term
(as provide in Section 2.2 hereof), the Employee shall be entitled to
receive (i) any unpaid Base Salary accrued through December 31, 2002,
and (ii) a pro-rated portion of any payment under any Bonus Plan in
which Employee participated at the time of termination, based on the
actual months worked by the Employee during the fiscal year on which
the Bonus Plan is based. Employee shall not be released from the
covenants contained in Section 5 hereof, provided however, that
Employer shall pay Employee an amount equal to one years Base Salary.
Such amount shall be payable in twelve (12) equal monthly
installments, determined by dividing Employee's Base Salary, on the
last day of Employee's employment with Employer, by 12, with the first
such installment being due and payable on the last day of Employee's
employment with Employer, and the remaining installments being due and
payable on the same date in each succeeding month. Employer shall have
the right, at any time, to release Employee from the covenants
contained in Section 5 hereof, at which time Employee's right to
receive and Employer's obligation to make any installment payment
shall terminate.
(e) Termination after December 31, 2002. In the event Employer and
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Employee agree to continue Employee's employment with Employer after
December 31, 2002, pursuant to the terms of Section 2.2 hereof, such
employment shall be continued, unless otherwise agreed in writing, on
a month to month basis and on the same terms and conditions as set
forth herein, and may be terminated by Employer (i) at any time upon
thirty (30) days notice, or (ii) immediately, provided that Employer
shall pay Employee in a lump sum, an amount equal to one (1) months
Base Salary. Employee shall be entitled to receive a pro-rated portion
of any payment under any Bonus Plan in which Employee participated at
the time of termination, based on the actual months worked by the
Employee during the fiscal year on which the Bonus Plan is based.
Employee shall not be released from the covenants contained in Section
5 hereof, provided however, that Employer shall pay Employee an amount
equal to one years Base Salary. Such amount shall be payable in twelve
(12) equal monthly installments, determined by dividing Employee's
Base Salary, on the last day of Employee's employment with Employer,
by 12, with the first such installment being due and payable on the
last day of Employee's employment with Employer, and the remaining
installments being due and payable on the same date in each succeeding
month. Employer shall have the right, at any time, to release Employee
from the covenants contained in Section 5 hereof, at which time
Employee's right to receive and Employer's obligation to make any
installment payment shall terminate.
In the event that Employer terminates Employee for cause, as defined
in Section 4.3, then the provisions of this Section 4.4(e)(i) and (ii)
shall not apply, and Employee will be entitled to receive only his
accrued, but unpaid, Base Salary through the date such termination is
effective and Employee shall not be released from the covenants
contained in Section 5 hereof. If the Employer terminates this
Agreement for cause, as defined in Section 4.3(a) or 4.3(c), Employee
shall forfeit his rights to any payment under any Bonus Plan in which
Employee participated at the time of termination, whether or not
payments under such Bonus Plan have been accrued by Employer. If the
Employer terminates this Agreement for cause, as defined in Section
4.3(b), Employee shall be entitled to receive a pro-rated portion of
any payment under any Bonus Plan in which Employee participated at the
time of termination, based on the actual days worked by the Employee
during the fiscal year on which the Bonus Plan is based.
(f) Benefits. The Employee's accrual of, or participation in plans
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providing for, Benefits, will cease at the effective date of the
termination of this Agreement, except as otherwise specifically
provided in writing in the documentation for any such Benefit. The
Employee will not receive, as part of his termination pay pursuant to
this Section 4, any payment or other compensation for any vacation,
holiday, sick leave, or other leave unused on the date the notice of
termination is given under this Agreement, unless Employer's written
personnel policies provide otherwise.
5. NON-COMPETITION AND NON-INTERFERENCE
5.1 ACKNOWLEDGMENTS BY THE EMPLOYEE
The Employee acknowledges that: (a) the services to be performed by him
under this Agreement are of a special, unique, unusual, extraordinary, and
intellectual character, and (b) the provisions of this Section 5 are
reasonable and necessary to protect the goodwill and other business
interests of Employer.
5.2 COVENANTS OF THE EMPLOYEE
In consideration of the acknowledgments by the Employee, and in
consideration of the compensation and benefits to be paid or provided to
the Employee by the Employer, the Employee covenants that he will not,
directly or indirectly:
(a) during the Employment Period, except in the course of his employment
hereunder, and during the Post-Employment Period (as defined below),
without the express prior written consent of Employer (as authorized
by its board of directors), as owner, officer, director, employee,
stockholder, principal, consultant, agent, lender, guarantor,
cosigner, investor or trustee of any corporation, partnership,
proprietorship, joint venture, association or any other entity of any
nature, engage, directly or indirectly, in any business of siting,
permitting, developing, constructing, or selling single-family homes
in (i) the following counties in the State of Texas: (1) Xxxxxx County
and all contiguous counties, (2) Xxxxxx County and all contiguous
counties, (3) Bexar County, and all contiguous counties, (4) Dallas
County and all contiguous counties, and (5) any county in which
Employer has homebuilding activity during the Employment Period, and
(ii) the following counties in the State of Tennessee: (1) Xxxxxxxxxx
County and all contiguous counties, and (2) any county in which
Employer engages in business during the Employment Period, provided,
however, that the Employee may purchase or otherwise acquire up to
(but not more than) one percent (1%) of any class of securities of any
enterprise (but without otherwise participating in the activities of
such enterprise) if such securities are listed on any national or
regional securities exchange or have been registered under Section
12(g) of the Securities Exchange Act of 1934;
(b) whether for the Employee's own account or for the account of any other
person, at any time during the Employment Period (except for the
account of Employer and its affiliates) and the Post-Employment
Period, solicit business of the same or similar type being carried on
by the Employer, from any person known by the Employee to be a
customer of the Employer, whether or not the Employee had personal
contact with such person during and by reason of the Employee's
employment with the Employer;
(c) whether for the Employee's own account or the account of any other
person (i) at any time during the Employment Period and the
Post-Employment Period, solicit, employ, or otherwise engage as an
employee, independent contractor, or otherwise, any person who is an
employee of the Employer, or in any manner induce, or attempt to
induce, any employee of the Employer to terminate his employment with
the Employer; or (ii) at any time during the Employment Period and
Post Employment Period, interfere with the Employer's relationship
with any person, including any person, who at any time during the
Employment Period, was an employee, contractor, supplier, or customer
of the Employer; provided, however, that nothing in this Section
5.2(c)(ii) shall preclude Employee from soliciting or employing any
person, who was employed by Employer, after six (6) months have lapsed
from the last date of the former employee's employment with Employer;
or
(d) at any time during or after the Employment Period, disparage the
Employer or any of its shareholders, parents, affiliates, directors,
officers, employees, or agents.
The term "Post-Employment Period" means the one (1) year period beginning
on the date of termination of the Employee's employment with the Employer.
If any covenant in this Section 5.2 is held to be unreasonable, arbitrary,
or against public policy, such covenant will be considered to be divisible
with respect to scope, time, and geographic area, and such lesser scope,
time, or geographic area, or all of them, as a court of competent
jurisdiction may determine to be reasonable, not arbitrary, and not against
public policy, will be effective, binding, and enforceable against the
Employee. Employee hereby agrees that this covenant is a material and
substantial part of this Agreement and that (i) the geographic limitations
are reasonable; (ii) the one (1) year term of the covenant is reasonable;
and (iii) the covenant is not made for the purpose of limiting competition
per se and is reasonably related to a protectable business interest of the
Employer.
The period of time applicable to any covenant in this Section 5.2 will be
extended by the duration of any violation by the Employee of such covenant.
The Employee will, while the covenant under this Section 5.2 is in effect,
give notice to the Employer, within ten (10) days after accepting any other
employment, of the identity of the Employee's employer. The Employer may
notify such employer that the Employee is bound by this Agreement and, at
the Employer's election, furnish such employer with a copy of this
Agreement or relevant portions thereof.
6. NON-DISCLOSURE COVENANT; EMPLOYEE INVENTIONS
6.1 ACKNOWLEDGMENTS BY THE EMPLOYEE
The Employee acknowledges that (a) during the Employment Period and as a
part of his employment, the Employee will be afforded access to
Confidential Information; (b) public disclosure of such Confidential
Information could have an adverse effect on the Employer and its business;
(c) because the Employee possesses substantial technical expertise and
skill with respect to the Employer's business, the Employer desires to
obtain exclusive ownership of each Employee Invention, and the Employer
will be at a substantial competitive disadvantage if it fails to acquire
exclusive ownership of each Employee Invention; and (d) the provisions of
this Section 6 are reasonable and necessary to prevent the improper use or
disclosure of Confidential Information and to provide the Employer with
exclusive ownership of all Employee Inventions.
6.2 AGREEMENTS OF THE EMPLOYEE
In consideration of the compensation and benefits to be paid or provided to
the Employee by the Employer under this Agreement, the Employee covenants
as follows:
(a) Confidentiality.
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(i) During and following the Employment Period, the Employee will
hold in confidence the Confidential Information and will not
disclose it to any person other than in connection with the
performance of his duties and obligations hereunder, except with
the specific prior written consent of the Employer or except as
otherwise expressly permitted by the terms of this Agreement.
(ii) Any trade secrets of the Employer will be entitled to all of the
protections and benefits under the federal and state trade secret
and intellectual property laws and any other applicable law. If
any information that the Employer deems to be a trade secret is
found by a court of competent jurisdiction not to be a trade
secret for purposes of this Agreement, such information will,
nevertheless, be considered Confidential Information for purposes
of this Agreement. The Employee hereby waives any requirement
that the Employer submit proof of the economic value of any trade
secret or post a bond or other security.
(iii)None of the foregoing obligations and restrictions applies to
any part of the Confidential Information that the Employee
demonstrates was or became generally available to the public
other than as a result of a disclosure by the Employee.
(iv) The Employee will not remove from the Employer's premises (except
to the extent such removal is for purposes of the performance of
the Employee's duties at home or while traveling, or except as
otherwise specifically authorized by the Employer) any document,
record, notebook, plan, model, component, device, or computer
software or code, whether embodied in a disk or in any other form
belonging to the Employer or used in Employer's business
(collectively, the "Proprietary Items"). The Employee recognizes
that, as between the Employer and the Employee, all of the
Proprietary Items, whether or not developed by the Employee, are
the exclusive property of the Employer. Upon termination of this
Agreement, or upon the request of the Employer during the
Employment Period, the Employee will return to the Employer all
of the Proprietary Items in the Employee's possession or subject
to the Employee's control, and the Employee shall not retain any
copies, abstracts, sketches, or other physical embodiment of any
of the Proprietary Items.
(b) Employee Inventions. Each Employee Invention will belong exclusively
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to the Employer. The Employee acknowledges that all of the Employee's
writing, works of authorship and other Employee Inventions are works
made for hire and the property of the Employer, including any
copyrights, patents, or other intellectual property rights pertaining
thereto. If it is determined that any such works are not works made
for hire, the Employee hereby assigns to the Employer all of the
Employee's right, title, and interest, including all rights of
copyright, patent, and other intellectual property rights, to or in
such Employee Inventions. The Employee covenants that he will
promptly:
(i) disclose to the Employer in writing any Employee Invention;
(ii) assign to the Employer or to a party designated by the Employer,
at the Employer's request and without additional compensation,
all of the Employee's right to the Employee Invention for the
United States and all foreign jurisdictions;
(iii)execute and deliver to the Employer such applications,
assignments, and other documents as the Employer may request in
order to apply for and obtain patents or other registrations with
respect to any Employee Invention in the United States and any
foreign jurisdictions;
(iv) sign all other papers necessary to carry out the above
obligations; and
(v) give testimony and render any other assistance but without
expense to the Employee in support of the Employer's rights to
any Employee Invention.
6.3 DISPUTES OR CONTROVERSIES
The Employee recognizes that should a dispute or controversy arising from
or relating to this Agreement be submitted for adjudication to any court,
arbitration panel, or other third party, the preservation of the secrecy of
Confidential Information may be jeopardized. All pleadings, documents,
testimony, and records relating to any such adjudication will be maintained
in secrecy and will be available for inspection by the Employer, the
Employee, and their respective attorneys and experts, who will agree, in
advance and in writing, to receive and maintain all such information in
secrecy, except as may be limited by them in writing.
7. GENERAL PROVISIONS
7.1 INJUNCTIVE RELIEF AND ADDITIONAL REMEDY
The Employee acknowledges that the injury that would be suffered by the
Employer as a result of a breach of the provisions of this Agreement
(including any provision of Sections 5 and 6) would be irreparable and that
an award of monetary damages to the Employer for such a breach would be an
inadequate remedy. Consequently, the Employer will have the right, in
addition to any other rights it may have, to obtain injunctive relief to
restrain any breach or threatened breach or otherwise to specifically
enforce any provision of this Agreement. Without limiting the Employer's
rights under this Section 7 or any other remedies of the Employer, if the
Employee breaches any of the provisions of Sections 5 and 6 and such breach
is proven in a court of competent jurisdiction, the Employer will have the
right to cease making any payments otherwise due to the Employee under this
Agreement.
7.2 COVENANTS OF SECTIONS 5 AND 6 ARE ESSENTIAL AND INDEPENDENT COVENANTS
The covenants by the Employee in Sections 5 and 6 are essential elements of
this Agreement, and without the Employee's agreement to comply with such
covenants, the Employer would not have entered into this Agreement or
continued the employment of the Employee. The Employer and the Employee
have independently consulted their respective counsel and have been advised
in all respects concerning the reasonableness and propriety of such
covenants, with specific regard to the nature of the business conducted by
the Employer.
The Employee's covenants in Section 5 and 6 are independent covenants and
the existence of any claim by the Employee against the Employer under this
Agreement or otherwise will not excuse the Employee's breach of any
covenant in Sections 5 or 6.
If the Employee's employment hereunder expires or is terminated, this
Agreement will continue in full force and effect as is necessary or
appropriate to enforce the covenants and agreements of the Employee in
Sections 5 and 6.
7.3 LEGAL RECOURSE
Employee further agrees that these covenants are made to protect the
legitimate business interests of the Employer. Employee understands as a
part of these covenants that the Employer intends to exercise whatever
legal recourse against him for any breach of this Agreement and in
particular, for any breach of these covenants.
8. GENERAL PROVISIONS
8.1 WAIVER
The rights and remedies of the parties to this Agreement are cumulative and
not alternative. Neither the failure nor any delay by either party in
exercising any right, power, or privilege under this Agreement will operate
as a waiver of such right, power, or privilege, and no single or partial
exercise of any such right, power, or privilege will preclude any other or
further exercise of such right, power, or privilege or the exercise of any
other right, power, or privilege. To the maximum extent permitted by
applicable law, (a) no claim or right arising out of this Agreement can be
discharged by one party, in whole or in part, by a waiver or renunciation
of the claim or right unless in writing signed by the other party; (b) no
waiver that may be given by a party will be applicable except in the
specific instance for which it is given; and (c) no notice to or demand on
one party will be deemed to be a waiver of any obligation of such party or
of the right of the party giving such notice or demand to take further
action without notice or demand as provided in this Agreement.
8.2 BINDING EFFECT; DELEGATION OF DUTIES PROHIBITED
This Agreement shall inure to the benefit of, and shall be binding upon,
the parties hereto and their respective successors, assigns, heirs, and
legal representatives, including any entity with which the Employer may
merge or consolidate or to which all or substantially all of its assets may
be transferred. The duties and covenants of the Employee under this
Agreement, being personal, may not be delegated.
8.3 NOTICES
All notices, consents, waivers, and other communications under this
Agreement must be in writing and will be deemed to have been duly given
when (a) delivered by hand (with written confirmation of receipt), (b) sent
by facsimile (with written confirmation of receipt), provided that a copy
is mailed by certified mail, return receipt requested, or (c) when received
by the addressee, if sent by a nationally recognized overnight delivery
service, in each case to the appropriate addresses and facsimile numbers
set forth below (or to such other addresses and facsimile numbers as a
party may designate by notice to the other parties):
If to Employer:
Pacific United Development Corp.
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxx 00000
Facsimile No.: 972/447-0783
With a copy to:
Xxxxxxx X. Xxxxxx
Pacific USA Holdings Corp.
0000 Xxxxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Facsimile No.: 713/871-0155
If to the Employee:
Xxxxxxx Xxxxxxx
#0 Xxxxxx Xxxxx Xxxxx
Xxxxxx, Xxxxx 00000
8.4 ENTIRE AGREEMENT; AMENDMENTS
This Agreement contains the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior agreements
and understandings, oral or written, between the parties hereto with
respect to the subject matter hereof, including, but not limited to, the
Employment Agreement dated November 1, 1996 between Employer and Employee.
This Agreement may not be amended orally, but only by an agreement in
writing signed by the parties hereto.
8.5 GOVERNING LAW
This Agreement will be governed by the laws of the State of Texas without
regard to conflicts of laws principles.
8.6 SEVERABILITY
If any provision of this Agreement is held invalid or unenforceable by any
court of competent jurisdiction, the other provisions of this Agreement
will remain in full force and effect. Any provision of this Agreement held
invalid or unenforceable only in part or degree will remain in full force
and effect to the extent not held invalid or unenforceable.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the date first above written.
"EMPLOYER"
PACIFIC UNITED DEVELOPMENT CORP.
By:___________________________________
Name: Xxxxxxx Xxxxxxx
Title: President & CEO
"EMPLOYEE"
___________________________________
XXXXXXX XXXXXXX
