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Exhibit 10.2
EMPLOYMENT AND SEPARATION AGREEMENT
Agreement made, effective as of May 1, 1997, by and between Total
Switch, Inc., a corporation duly organized and existing under the laws of the
State of Arizona, with a place of business at 8655 E. Xxx Xx Xxxxxxx, Xxxxx
X-000, Scottsdale, Arizona, 85258, hereinafter referred to as ("Employer"), and
Xxxxxxx X. Van Zeeland, of 0000 X. Xxxxxx Xxxxxx, Xxxx, Xxxxxxx, 00000,
hereinafter referred to as ("Employee").
RECITALS
The parties recite and declare:
A. Employer desires to hire Employee because of Employee's vast
business experience and expertise as an inventor and developer of
certain patented switch technology known as "Switch Panel with
Magnetically-Coupled Armature." He also has secured a license for his
technology and has opportunities to manufacture and sell his switches
to major markets.
B. Employee desires to be employed by Employer in the executive
capacity described below.
For the reasons set forth above, and in consideration of the mutual
covenants and promises of the parties set forth in this agreement, Employer and
Employee agree as follows:
SECTION ONE:
1.1 Employment. Employer employs Employee as the COO on the terms
and conditions stated in this agreement to:
Continue to research and develop, improve and expand
on the technology, to plan and develop the manufacturing
systems for the products, to manage the quality assurance, the
procurement of parts, manufacturing and servicing of products,
hire quality engineers when needed and as budgeted, plus the
customary duties of a COO.
SECTION TWO:
2.1 Term of Employment. The term of Employee's employment shall be
seven (7) years commencing May 1, 1997. Continued employment of
Employee by Employer after May 1, 2002, shall be for the term and on
the conditions agreed to by the parties prior to the expiration of this
agreement.
SECTION THREE:
3.1 Best Efforts Of Employee. Employee agrees that his ability,
experience and talents, perform all of the duties that may be required
of and from him pursuant to the express and implicit terms of this
agreement, to the reasonable
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satisfaction of Employer. Such duties shall be rendered at 8655 E. Xxx
Xx Xxxxxxx, Xxxxx X-000, Xxxxxxxxxx, Xxxxxxx, 00000, and at such other
place or places as Employer shall in good faith require or as the
interest, needs, business or opportunity of Employer shall require.
SECTION FOUR:
4.1 Compensation Of Employee. For a period of eighteen (18)
months, starting July 1, 1997, Employer shall pay Employee, and
Employee shall accept from Employer in full payment for Employee's
services under this agreement, compensation at the rate of $72,000,
payable twice a month on the 1st and 15th of each month or biweekly as
the Board may determine while this agreement shall be in force. After
eighteen months, Employer shall pay Employee at an increased level
commensurate with industry standards and with the Company's ability to
pay.
SECTION FIVE:
5.1 Reimbursement For Expenses. Employer shall reimburse Employee
for reasonable out of pocket expenses that Employee shall incur in
connection with his services for Employer contemplated by this
agreement, on presentation by Employee of appropriate vouchers and
receipts for such expenses to Employer.
SECTION SIX:
6.1 Employee's Service As Director. Employee hereby consents to
serve as a director of Employer or any parent, subsidiary, or
corporation affiliated with Employer, on condition that Employee
receive the same compensation paid to other directors of any such
company for their services as directors.
SECTION SEVEN:
7.1 Use Of Confidential Information. Employee agrees that, in
addition to any other limitation contained in this agreement,
regardless of the circumstances of the termination of employment, he
will not communicate to any person, firm, corporation or other entity
any information relating to customer lists, prices, secrets,
advertising, nor any confidential knowledge or secrets that Employee
might from time to time acquire with respect to the business of the
Employer or any of its affiliates or subsidiaries.
SECTION EIGHT:
8.1 Termination By Employer. If Employer shall cease conducting
its business, take any action looking toward its dissolution or
liquidation, make an assignment for the benefit of its creditors, admit
inability to pay its debts as they become due, file a voluntary or be
the subject of an involuntary petition in bankruptcy, or be the subject
of any state or federal insolvency proceeding of any kind, then the
Employee may, in his sole discretion, by written notice to Employer,
terminate his employment and Employer hereby consents to the release of
Employee under such circumstances and agrees that if Employer ceases to
operate or to exist as a result of such event, the noncompetition and
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other provision of solicitation or use of confidential information
under this agreement shall terminate.
SECTION NINE:
9.1 Trade Secrets. Employee shall not at any time or in any
manner, either directly or indirectly, divulge disclose or communicate
to any person, firm, corporation or other entity in any manner
whatsoever, any information concerning any matters affecting or
relating to the business of Employer, including without limitation, any
of its customers, the prices it obtains or has obtained from the sale
of, or at which it sells or has sold, its products or any other
information concerning the business of Employer, its manner of
operations, its plans, processes or other data without regard to
whether all of the above-stated matters will be deemed confidential,
material or important, Employer and Employee specifically and expressly
stipulating that as between them, such matters are important, material
and confident, and gravely affect the effective and successful conduct
of the business of Employer and Employer's good will, and that any
breach of the terms of this section shall be a material breach of this
agreement.
SECTION TEN:
10.1 Nondisclosure Of Confidential Information During Employment
And After Termination. Employee agrees that for and during the entire
term of this employment agreement, any information, data, figures,
sales figures, projections, estates, customer lists, tax records,
personnel history, accounting procedures, promotions, and the like,
shall be considered and kept as the private and privileged records of
Employer and will not be divulged to any person, firm, corporation or
other entity except on the direct authorization of the Employer.
Further, upon termination of the agreement for any cause, Employee
agrees that he will continue to treat as private and privileged any
information, data, figures, projections, estimates, customer lists, tax
records, personnel history, accounting procedures, and the like, and
will not release any such information to any person, firm, corporation
or other entity, either by statement, deposition or as a witness,
expect upon direct written authority of the Employer, and Employer
shall be entitled to an injunction by any competent court to enjoin and
restrain the unauthorized disclosure of such information.
SECTION ELEVEN:
11.1 Surrender Of Records On Termination Of Employment. Employee
agrees that on termination of his employment for any cause whatsoever,
Employee will surrender to Employer in good condition any record or
records kept by Employee containing the names, addresses and other
information with regard to customers or potential customers of Employer
served by Employee.
SECTION TWELVE:
12.1 Restriction On Use of Disclosure Of Customer List And Other
Information. For a period of twelve (12) months immediately following
termination of this agreement, Employee shall neither call on nor
solicit, either for Employee or any
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other person, firm, corporation, or other entity, any of the customers
of Employer of whom Employee called, with whom Employee became
acquainted, or of whom Employee learned during Employee's employment
under this agreement, nor shall Employee make known to any person,
firm, corporation, or other entity, either directly or indirectly, the
names or addresses of any such customers or any information relating in
any manner to Employer's trade or business relationship with such
customers.
SECTION THIRTEEN:
13.1 Noncompetition With Former Employer. Employee agrees that for
a period of twelve (12) months after termination of his employment with
Employer in any manner, whether with or without cause, Employee will
not, within the United States, directly or indirectly engage in the
business of switch development, manufacture, distribution or in any
business competitive with Employer for a period of twelve (12) months
from such termination of employment. Directly or indirectly engaging in
business of switches or in any competitive business shall include, but
not be limited to, engaging in business as owner, partner, or agent, or
as Employee of any person, firm, corporation or other entity engaged in
such business, or in being interested directly or indirectly in any
such business conducted by any person, firm, corporation or other
entity.
SECTION FOURTEEN:
14.1 Vacation. Employee is entitled to a three week vacation (15
business days) after completing one year of service. For each
additional year of service, Employee will receive one additional week
of vacation (5 business days [e.g., three years service completed =
five weeks vacation or 25 business days]). Employee may accumulate
vacation time and choose to use it in a later year or take it as a cash
payment upon retirement or termination.
SECTION FIFTEEN:
15.1 Group Insurance Plans. The Employer will provide the Employee
and his spouse with full coverage hospitalization, surgical, medical,
major medical, dental and eye insurance. The Employer will provide a
Pre-Paid Legal plan to cover the Employee. The Employer will provide a
disability policy for the Employee with standard coverage and
deductibles.
SECTION SIXTEEN:
16.1 Professional Fees. The Employer will pay for all Employee's
professional fees and other educational seminars related to his
profession as an Engineer.
SECTION SEVENTEEN:
17.1 Profit Sharing Bonus. Employer agrees to pay a profit sharing
bonus to the Employee based upon the prior year's financial results.
Within 90 days of the fiscal year-end (currently the calendar year end
December 31) Employer will compute the net profits before taxes and
before any declared dividends of those profits (subject to audit) and
pay to the Employee 3.4% of his net profit amount.
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SECTION EIGHTEEN:
18.1 Performance Bonus. Employer agrees to pay Employee a bonus of
$5,000 for each United States Patent issued in his name as inventor or
co-inventor with a maximum of $20,000 during any fiscal year. A $1,000
bonus will be paid for Foreign Patents issued under the same terms and
calendar.
ARTICLE II
DEFINITIONS
1.1 Separation: means the termination of Mr. Van Zeeland's status
as an employee of the Corporation or any successor or assign
corporation.
1.2 Separation Date of Date of Separation: means 90 days after the
date the Corporation gives Mr. Van Zeeland written notice that the
Corporation wishes to terminate his employment with the Corporation, or
90 days after Mr. Van Zeeland gives the Corporation written notice that
he wishes to terminate his employment with the Corporation.
1.3 Separation Occurrences: means an Event which would cause
Separation. For purposes of this Agreement, there are three Events
which could cause Separation. These Events are as follows:
A. Takeover Event. The Corporation is taken
over and Mr. Van Zeeland is asked to leave. The
concept of "takeover", for purposes of this Agreement
means that control or possession of the Corporation
has been assumed by an outside person(s) or entity
(ies). It is contemplated that the request of
Separation is as a result of the Takeover Event.
B. Corporation Initiated Separation. The
Corporation's Board asks Mr. Van Zeeland to leave or
forces Mr. Van Zeeland to leave as a result of its
conduct or demotes Mr. Van Zeeland from the COO
position or substantially reduces his authority,
although no Takeover Event, as defined above, has
occurred. The request of Separation may be made by
the Board either with or without reason or cause.
C. Separation Initiated by Mr. Van Zeeland. Mr.
Van Zeeland decides to terminate his employment with
the Corporation, with or without reason or cause, and
the termination has not been solicited in any manner
by the Corporation. Mr. Van Zeeland's death would be
considered to be a Separation initiated by Mr. Van
Zeeland.
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SECTION TWO:
COMPENSATION AND SEPARATION PROVISIONS
2.1 Compensation for Separation Occurrence. Compensation is to be
paid to Mr. Van Zeeland for the Separation Occurrence. Mr. Van Zeeland
is to be paid in the following manner:
A. Upon the occurrence of a Takeover Event, Mr.
Van Zeeland is to receive, in a lump sum payment, on
the Date of Separation, the sum equal to 2.99 times
(2.99x) his gross annual base salary. (He would also
be entitled to receive all rights as provided by
local, state or federal rules or regulations, e.g.,
Cobra notification).
B. Upon the occurrence of a Corporation
Initiated Separation, Mr. Van Zeeland would receive,
paid over a two year period, in equal installments
(timed to coincide with each Corporation payroll
period, as currently made), payments the sum of which
is equal to two times (2x) his gross annual base
salary, beginning on the Date of Separation. During
this two year period, he would receive all standard
employee benefits, e.g., health insurance, at the
then prevailing cost, if any. Further, the
Corporation will be required to continue to pay Mr.
Van Zeeland and his spouse's medical and dental
insurance coverage until they reach age 65. The
Corporation will make the premium payments on behalf
of Mr. Van Zeeland and his spouse for the applicable
months commencing from the Date of Separation. The
Corporation may change its insurance coverage but
will not discriminate against Mr. Van Zeeland or his
spouse. Any rights required to be provided to him by
local, state or federal rules or regulations would be
granted at the end of the period (e.g., Cobra
notification).
C. Upon the occurrence of Separation Initiated
by Mr. Van Zeeland, provided that he gave 90 days'
notice prior to his departure, he would receive, paid
over a one and one-half year period, in equal monthly
installments (timed to coincide with each Corporation
payroll period, as currently made), payments the sum
of which is equal to one and one-half times (1.5 x)
his gross annual base salary, beginning on the Date
of Separation. During this one and one-half year
period, he would also receive all standard employee
benefits, e.g., health insurance and other benefits,
and Mr. Van Zeeland and his spouse would continue to
receive their medical and dental insurance coverage
during the term of payments. The Corporation will
make the standard corporate premium payments on
behalf of Mr. Van Zeeland and his spouse for the
applicable months commencing from the Date of
Separation. The Corporation may change its insurance
coverage, but will not discriminate against Mr. Van
Zeeland or his spouse. Any rights required to be
provided to him by local, state or federal rules or
regulations would be granted at the end of the one
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and one-half year period (e.g., Cobra notification
would occur at the end of the one and one-half year
period).
All payments referenced herein will be
remitted without withholding for State of Federal
payroll or income taxes if requested by the Employee.
Bonus money and vacation time will not be
prorated, except in the event of Separation
Occurrences involving a Takeover Event or a
Corporation Initiated Separation, then bonus money
and vacation time will be prorated as thought fully
earned and vested.
2.2 Resignation from Corporation. Upon a Separation Occurrence,
Mr. Van Zeeland will resign his position as Chief Operating Officer of
the Corporation.
2.3 Consulting Relationship; Covenant Not to Compete;
Confidentiality.
A. For the period of the payments to Mr. Van
Zeeland or twelve (12) months from the Date of
Separation, whichever is shorter, Mr. Van Zeeland
will make available to the Corporation his services,
performing in the same capacity and utilizing his
expertise as a consultant. Unless otherwise agreed to
in writing by the parties, the amount of time Mr. Van
Zeeland is to devote to such consulting is not to
exceed sixty (60) hours per twelve month period. Mr.
Van Zeeland will be available to perform such
services with reasonable advance notice during the
foregoing period as may be requested by the
Corporation. If approved in advance, the Corporation
will reimburse Mr. Van Zeeland for the actual cost of
all reasonable travel expenses, clerical expenses,
toll telephone calls or other expenses as may be
required in connection with the performance of the
foregoing services. Mr. Van Zeeland may condition his
performance or requested services upon such
reimbursement of expenses by the Corporation.
B. During the period that Mr. Van Zeeland
provides consulting services, Mr. Van Zeeland will
not, without the written consent of the Corporation
(acting in its sole and absolute discretion), engage
directly or indirectly within the United States or
any other jurisdiction or country in which the
Corporation is engaged on the Date of Separation, in
any business (financially as in investor, except as
to investments in publicly held enterprises, or
lender or as an employee, director, officer, partner,
independent contractor, consultant or owner or in any
other capacity calling for the rendition of personal
services or acts of management, operations of
control) which is in competition with the business
conducted by the Corporation. For the propose of this
Agreement, the "business" of the Corporation shall be
defined as the design, manufacture, development,
marketing and licensing of Switch Technologies. Mr.
Van Zeeland acknowledges and agrees that the
foregoing restrictive covenant is reasonable and
valid in
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duration, geographical scope, and all other respects.
Mr. Van Zeeland further acknowledges and agrees that
a breach by him of the provisions of the foregoing
restrictive covenant would cause the Corporation
irreparable injury and damage which cannot be
reasonably or adequately compensated by damages at
law. Mr. Van Zeeland, therefore, expressly agrees
that the Corporation shall be entitled to injunctive
or other equitable relief to enjoin the continuation
of any breach by Mr. Van Zeeland of the foregoing
restrictive covenant in addition to any other
remedies legally available to it. If any court of
competent jurisdiction determines that the foregoing
restrictive covenant, or any part thereof, is invalid
or unenforceable, the remainder of the restrictive
covenant, or remainder of the restrictive covenant
not determined to be invalid or unenforceable shall
be given full effect. Moreover, if the foregoing
restrictive covenant should ever be deemed to exceed
the temporal, geographic, or occupational limitations
permitted by applicable laws, those provisions shall
be and are hereby reformed to the maximum temporal,
geographic or occupational limitations permitted by
law.
C. Mr. Van Zeeland further acknowledges his
obligation not to use or disclose to anyone the
confidential information of the Corporation. In
addition, following separation, if Mr. Van Zeeland
receives any contacts or communications in connection
with any matter related to the Corporation, prior to
responding to such contact, he shall contact his
counsel concerning such contact or communication. If
he has no counsel advising him on these matters, he
will contact the Corporation which will, at the
Corporation's expense, retain counsel for him to
advise him of his rights, obligations and duties
prior to a response.
2.4 Relationship During the Time of Payment. The parties
acknowledge that following the Date of Separation and during the time
payments are made to Mr. Van Zeeland, the relationship between Mr. Van
Zeeland and the Corporation is that of independent contractor and not
agent or employee.
2.5 Release of Liability.
A. In consideration of the payments provided
for herein and the covenants herein made, but with
the exceptions set forth in this paragraph, Mr. Van
Zeeland, upon Separation will release, on his behalf
and on behalf of his heirs, executors, administrators
and assigns, any and all claims of any nature
whatsoever against the Corporation and its present
and former agents, officers, directors, employees,
insurers and assigns, whether known or unknown, which
he may have or claim to have by reason of any matter,
cause or thing whatsoever at any time up to the Date
of Separation. The FULL WAIVER AND RELEASE will
include, without limitation, all rights or claims
arising from the Arizona Civil Rights Act, or any
other applicable state or federal stature or any
common law cause of actions, including claims for
breach of any
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express or implied contract, wrongful discharge,
tort, personal injury or any claims for attorneys'
fees or other costs. Notwithstanding any provisions
to the contrary herein, this release shall not apply
to (1) obligations and undertakings of the
Corporation pursuant to the stock option agreements
to which Mr. Van Zeeland is a party as of the Date of
Separation, and (2) the indemnification provisions of
the Corporation's Bylaws.
B. In consideration of the mutual covenants
herein made, but with the exceptions set forth in
this paragraph, the Corporation will release any and
all claims of any nature whatsoever against Mr. Van
Zeeland and his heirs, executors, administrators, and
assigns, whether known or unknown, which the
Corporation may now or hereafter have or claim to
have by reason of any matter, cause or thing
whatsoever at any time up to the Separation Date.
Notwithstanding any provisions to the contrary
herein, this release on the part of the Company shall
not apply to: (1) obligations and undertakings of Mr.
Van Zeeland under this Agreement, and (2) material
matters or transactions not documented in the
Corporation's books and records as of the Date of
Separation and arising out of or involving conduct on
the part of Mr. Van Zeeland that was outside the
course and scope of the authority given to him by the
Corporation in connection with his employment.
2.6 Personal Property.
A. Following Separation, any personal property
and personal files belonging to Mr. Van Zeeland which
remain in the Corporation's offices will be delivered
to Mr. Van Zeeland, at the Corporation's expense,
within seven (7) days after the Date of Separation.
Mr. Van Zeeland will be entitled to retain copies of
files, documents, and records that are or were
retained in his office at the Corporation, including
his rolodex, various business cards, address books
and the like.
B. Following Separation, Mr. Van Zeeland may
retain the following property of the Corporation that
he is using or that is properly in his possession or
control, including equipment, furniture, computer
hardware and software, books, magazines,
publications, photographs, notebooks, tapes and video
equipment.
2.7 Personal Mail; Telephone Answering. Following Separation, the
Corporation agrees to promptly forward to Mr. Van Zeeland (or, at his
instruction, to hold for his pick-up) all personal correspondence
addressed to Mr. Van Zeeland that may be received by the Corporation
after the Date of Separation. The Corporation agrees to freely and
promptly provide to any person who might inquire the address and
telephone number of Mr. Van Zeeland, except if instructed to the
contrary.
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2.8 Extension of Stock Options. Following Separation, the right to
exercise Mr. Van Zeeland's existing stock options of Common Stock of
the Corporation shall be extended for the maximum period permitted by
the plans under which such options were granted.
2.9 Same Day Sale. Following Separation, upon the exercise of any
options and the same day sale of the underlying Common Stock, the
Corporation will facilitate a cashless exercise until the settlement
date of the stock sale if requested by Mr. Van Zeeland.
2.10 Subsequent Extended Rights. Any subsequent extended rights to
other stock option holders will be offered to Mr. Van Zeeland.
2.11 Underwriting. In the case of any public offering or
underwriting, the Corporation shall use it best efforts so that Mr. Van
Zeeland may be a selling shareholder, at Mr. Van Zeeland's option.
2.12 Capital. Nothing in this Agreement shall restrict the right of
the Corporation to issue additional shares or classes of stock or other
securities, or to recapitalize, reclassify, or otherwise alter or
change its present debt or equity position or rights and privileges
attached thereto.
SECTION THREE:
GENERAL MISCELLANEOUS PROVISIONS
3.1 No Disparagement. Following the Date of Separation, Mr. Van
Zeeland agrees not to disparage the Corporation or any of its officers,
directors, employees or agents. The Corporation agrees, following
Separation, not to disparage Mr. Van Zeeland.
3.2 Bylaw Indemnification. The Corporation agrees that following
the Date of Separation, the indemnification provisions under the Bylaws
of the Corporation will continue in full force and effect for the
benefit of Mr. Van Zeeland for so long as such indemnification
provisions would have any application to claims against Mr. Van
Zeeland.
3.3 Press Release. Any press release by the Corporation of Mr. Van
Zeeland concerning the termination of Mr. Van Zeeland's employment
relationship with the Corporation shall be subject to mutual approval
of the parties hereto.
3.4 Nondisclosure. The Parties agree and represent that they will
not seek newspaper, magazine, television, radio or other media or
industry publicity as to the facts or terms of the Separation. The
parties further agree and represent that they will not discuss or
disclose, directly or indirectly, orally or in writing, spontaneously
or in response to inquiry, to any entity or person, the facts or merits
of claims or the terms of the Separation; provided, however, that the
foregoing prohibition shall not apply to discussion restricted to Mr.
Van Zeeland's immediate family, and provided, further, that the terms
of Separation and this Agreement may be disclosed in response to a
request initiated by any state or
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federal regulatory agency or pursuant to any subpoena issued by any
court of competent jurisdiction, to the parties' attorneys, tax
advisors or accountants in connection with the preparation and review
of the parties' income tax returns, to current and future lenders to
the Corporation, or by the Corporation as necessary to comply with the
requirements of any Stock Exchange or any federal or state securities
law or regulation.
3.5 Jurisdiction. This Agreement shall be governed in all
respects, whether as to validity, construction, capacity, performance
or otherwise, by the laws of the State of Arizona, irrespective of the
fact that one or more of the parties may become a resident of a
different state and no action involving this Agreement may be brought
expect in the Superior Court of the State of Arizona or in the United
States District Court for the District of Arizona. If any provisions of
this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable for whatever reason, the remaining
provisions of this Agreement shall nevertheless continue in full force
and effect without being impaired in any manner whatsoever.
3.6 Attorneys' Fees. Should either party employ an attorney to
enforce any of the provisions of this Agreement, to protect its
interest in any manner arising under this Agreement, or to recover
damages for the breach of any of the terms of this Agreement, the
non-prevailing party in such action pursued in a court of competent
jurisdiction agrees to pay to the prevailing party all reasonable
costs, damages and expenses, including attorneys' fees, incurred or
expended by the prevailing party in connection therewith.
3.7 Cooperation of the Parties. Mr. Van Zeeland and the
Corporation agree to cooperate fully and to take all additional actions
that may be reasonably necessary or reasonably appropriate to give full
force and effect to the terms and intent of this Agreement and which
are not inconsistent with its terms.
3.8 Costs. Mr. Van Zeeland and the Corporation shall bear his or
its own costs, attorneys' fees and other expenses incurred in
connection with the negotiation and preparation of this Agreement and
any Separation which occurs pursuant to this Agreement.
3.9 Term. Unless otherwise agreed in writing by the parties, this
Agreement shall continue in full force and effect during the life of
the Corporation or its successors and/or assignees.
3.10 No Waiver. No term or provision of this Agreement shall be
construed as a waiver by the Corporation of any provision of its
Articles of Incorporation or Bylaws restricting the sale or transfer of
shares of the Corporation.
3.11 Employment. Except as specifically provided herein, nothing in
this Agreement shall confer on any employee of the Corporation any
right to continue in the employ of the Corporation, nor shall it
interfere in any way with his employment at any time.
3.12 Notice. Any notices or demands which shall be required or
permitted by law or by any of the terms or provisions of this Agreement
shall be in writing and
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shall be effective when delivered personally or when sent by United
States mail, registered or certified. Such notices and demands shall be
addressed to the Corporation or individual at their addresses set forth
in the caption of this Agreement, or at such other addresses as any
party hereto may relate in writing to the other parties.
3.13 Benefit. The provision of this Agreement shall inure to the
benefit of and be binding upon the parties hereto, their heirs,
trustees, legal representatives, successors and permitted assignees.
3.14 Marginal Headings. The marginal headings in the paragraphs
contained in the Agreement are for convenience only, and are not to be
considered a part of this Agreement or used in determining its content
or context.
3.15 Counterparts. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute one
instrument.
3.16 Amendment. The Corporation and Mr. Van Zeeland reserve the
right to alter, amend, revoke or terminate this Agreement in whole or
in part at any time by their joint instrument in writing to that
effect. The parties must unanimously agree to alter, amend, revoke or
terminate this Agreement.
3.17 Whole Agreement. With regard to the subject of this Agreement,
the terms of this instrument constitute the entire agreement between
the parties and shall be binding upon and inure to the benefit of those
parties and the executors, administrators, personal representatives,
estates, heirs, successors and assigns of each. The parties represent
that there are no collateral agreements or side agreements not
otherwise provided for within the terms of this instrument. This
Agreement supersedes and takes precedence over any prior written or
oral inducements, representations or agreements as may be set forth in
the Articles of Incorporation of the Corporation or the Bylaws of the
Corporation, or elsewhere.
ARTICLE III
SECTION ONE:
1.1 Law To Govern Contract. It is agreed that this agreement shall
be governed by, construed and enforced in accordance with the laws of
the State of Arizona.
SECTION TWO:
2.1 Entire Agreement. This agreement shall constitute the entire
agreement between the parties and any prior understanding or
representation of any kind preceding the date of this agreement shall
not be binding upon either party except to the extent incorporated in
this agreement.
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SECTION THREE:
3.1 Modification Of Agreement. Any modification of this agreement
or additional obligation assumed by either party in connection with
this agreement shall be binding only if evidenced in writing signed by
each party or an authorized representative of each party.
SECTION FOUR:
4.1 Attorneys' Fees. In the event that any action is filed in
relation to this agreement, the unsuccessful party in the action shall
pay to the successful party, in additional to all the sums that either
party may be called on to pay, a reasonable sum for the successful
party's attorneys' fees.
SECTION FIVE:
5.1 Notices. Any notice provided for or concerning this agreement
shall be in writing and shall be deemed sufficiently given when sent by
certified or registered mail if sent to the respective address of each
party set forth at the beginning of this agreement.
IN WITNESS WHEREOF, the undersigned execute this Agreement to be effective on
the date hereinabove written.
/s/ Xxxxxxx X. Van Zeeland
----------------------------------------------
Xxxxxxx X. Van Zeeland
Total Switch, Inc. an Arizona Corporation
By: /s/ R. Xxxxxx Xxxxxx
-------------------------------------------
Its: Director
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