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Exhibit 10.1
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
R. Xxxxxx Xxxxxx, of 00000 X. 000xx Xxxxx, Xxxxxxxxxx, 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, developer and
entrepreneur in building businesses based upon patented technologies,
plus ability to raise funds, create a viable business structure in
anticipation of a public offering, acquisition/merger or to continue a
profitable business.
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:
ARTICLE I
SECTION ONE:
1.1 Employment. Employer employs Employee as the CEO on the terms
and conditions stated in this agreement to:
Form the organization, create a visionary business plan,
manage, supervise and run the overall operations profitably;
attract capital, create and promote funding vehicles; create
and promote marketing, distribution and sales plans; create a
plan for growth, and profit; create a plan to maximize
shareholder value and carry out the customary duties of a CEO.
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
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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 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, 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.
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SECTION EIGHT:
8.1 Termination By Employer. If Employer shall cease conducting
its business, take any action looking toward it dissolution or
liquidation, make an assignment for the benefit of its creditors, admit
in writing its 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 other provisions 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 Employers 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, an 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 this 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.
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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 or 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 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
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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 Employees
professional fees related to his Continuing Legal Education, his Bar
Association dues and other educational seminars related to his
profession as a Lawyer.
SECTION SEVENTEEN:
17.1 Profit Sharing Bonus. The Company agrees to a profit sharing
bonus to the Employee base upon the prior years financial results.
Within 90 days of the fiscal year-end (currently the calendar year end
Dec. 31) the Company will compute the net profits before taxes and
before any declared dividends of those profits (subject to audit) and
pay to the Employee 6.6% of this net profit amount.
SECTION EIGHTEEN:
18.1 Signing Bonus. The Company agrees to pay Employee a bonus of
$10,000 for signing on as an Employee under this agreement.
ARTICLE II
SECTION ONE:
DEFINITIONS
1.1 Separation: means the termination of Xx. Xxxxxx'x status as an
employee of the Corporation or any successor or assign corporation.
1.2 Separation Date or Date of Separation: means 90 days after the
date the Corporation gives Xx. Xxxxxx written notice that the
Corporation wishes to terminate his employment with the Corporation, or
90 days after Xx. Xxxxxx 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 Xx. Xxxxxx is asked to leave. The concept of
"takeover", for purposes of this Agreement means that
control or obsession 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.
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B. Corporation Initiated Separation. The
Corporation's Board asks Xx. Xxxxxx to leave or
forces Xx. Xxxxxx to leave as a result of its conduct
or demotes Xx. Xxxxxx from the CEO 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 Xx. Xxxxxx. Xx.
Xxxxxx decides to terminate his employment with the
Corporation, with or without reason or cause, with
termination has not been solicited in any manner by
the Corporation. Xx. Xxxxxx'x death would be
considered to be a Separation initiated by Xx.
Xxxxxx.
SECTION TWO:
COMPENSATION AND SEPARATION PROVISIONS
2.1 Compensation for Separation Occurrence. Compensation is to be
paid to Xx. Xxxxxx for the Separation Occurrence. Xx. Xxxxxx is to be
paid in the following manner:
A. Upon the occurrence of a Takeover Event, Xx.
Xxxxxx is to receive, in a lump sum payment, on the
Date of Separation, the sum equal to 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, Xx. Xxxxxx 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 Xx. Xxxxxx and
his spouse's medical and dental insurance coverage
until they reach age 65. The Corporation will make
the premium payments on behalf of Xx. Xxxxxx 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
Xx. Xxxxxx 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 Xx. Xxxxxx, provided that he gave 90 days notice
prior to his departure, he would receive, paid over a
one and one-half year
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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, other perks, and Xx. Xxxxxx 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 Xx. Xxxxxx
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 Xx. Xxxxxx 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 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 or 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 though fully
earned and vested.
2.2 Resignation from Corporation. Upon a Separation Occurrence,
Xx. Xxxxxx will resign his position as Chief Executive Officer of the
Corporation.
2.3 Consulting Relationship; Covenant Not to Compete;
Confidentiality.
A. For the period of the payments to Xx. Xxxxxx
or twelve (12) months from the Date of Separation,
whichever is shorter, Xx. Xxxxxx 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 Xx. Xxxxxx is to
devote to such consulting is not to exceed sixty (60)
hours per twelve month period. Xx. Xxxxxx 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 Xx. Xxxxxx 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. Xx. Xxxxxx may
condition his performance or requested services upon
such reimbursement of expenses by the Corporation.
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B. During the period that Xx. Xxxxxx provides
consulting services, Xx. Xxxxxx 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, operation or
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. Xx.
Xxxxxx acknowledges and agrees that the foregoing
restrictive covenant is reasonable and valid in
duration, geographical scope, and all other respects.
Xx. Xxxxxx 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. Xx. Xxxxxx, therefore, expressly agrees that the
Corporation shall be entitled to injunctive or other
equitable relief to enjoin the continuation of any
breach by Xx. Xxxxxx 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. Xx. Xxxxxx further acknowledges his
obligation not to use or disclose to anyone the
confidential information of the Corporation. In
addition, following separation, if Xx. Xxxxxx
receives any contacts or communications in
connection with any matter related to the
Corporation, prior to responding to such contract, 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 who
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 the following the Date of Separation and during the
time payments are made to
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Xx. Xxxxxx, the relationship between Xx. Xxxxxx 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, Xx.
Xxxxxx, 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 an and its
present and former agents, officers, directors,
employees, insurers and assigns, whether know 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 the Arizona Civil Rights Act, or
any other applicable state or federal stature or any
common law cause of action, including claims for
breach of any 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 Xx. Xxxxxx 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 Xx.
Xxxxxx 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 Corporation
shall not apply to; (1) obligations and undertakings
of Xx. Xxxxxx 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 Xx. Xxxxxx 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 belong to Xx. Xxxxxx which
remain in the Corporation's offices will be delivered
to Xx. Xxxxxx, at the Corporation's expense, within
seven (7) days after the Date of Separation. Xx.
Xxxxxx, will be entitled to retain copies of files,
documents, and
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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, Xx. Xxxxxx 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 Xx. Xxxxxx (or, at his
instruction, to hold for his pick-up) all personal correspondence
addressed to Xx. Xxxxxx 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 Xx. Xxxxxx, except if instructed to the contrary.
2.8 Extension of Stock Options. Following Separation, the right to
exercise Xx. Xxxxxx'x 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 Xx. Xxxxxx.
2.10 Subsequent Extended Rights. Any subsequent extended rights to
other stock option holders will be offered to Xx. Xxxxxx.
2.11 Underwriting. In the case of any public offering or
underwriting, the Corporation shall use its best efforts so that Xx.
Xxxxxx may be a selling shareholder, at Xx. Xxxxxx'x 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, Xx. Xxxxxx
agrees not to disparage the Corporation or any of its officers,
directors, employees or agents. The Corporation agrees, following
Separation, not to disparage Xx. Xxxxxx.
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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 Xx. Xxxxxx for so long as such indemnification provisions
would have any application to claims against Xx. Xxxxxx.
3.3 Press Release. Any press release by the Corporation or Xx.
Xxxxxx concerning the termination of Xx. Xxxxxx'x 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, a 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; provide, however, that the
foregoing prohibition shall not apply to discussion restricted to Xx.
Xxxxxx'x 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 federal regulatory agency or pursuant to any
subpoena issued by and court with competent jurisdiction, to the
parties' attorneys, tax advisors or accountants in connection with the
preparation of 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
except 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 Attorney's 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. Xx. Xxxxxx 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.
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3.8 Costs. Xx. Xxxxxx 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 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 Xx. Xxxxxx 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
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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.
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 attorney's 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 as set forth at the beginning of this agreement.
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IN WITNESS WHEREOF, the undersigned execute this Agreement to be effective on
the date hereinabove written.
/s/ R. Xxxxxx Xxxxxx
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R. Xxxxxx Xxxxxx
Total Switch, Inc. an Arizona Corporation
By: /s/ Xxxxxxx X. Van Zeeland
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Its: Director
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