Exhibit 10.5
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Employment Agreement"), dated as of August
4, 1998, is by and between PENHALL INTERNATIONAL CORP., an Arizona corporation
("Employer"), and XXXXX X. XXXXXXXX, an individual ("Employee").
1.0 RECITALS.
1.1 Employer is engaged in the business of providing
construction and demolition services.
1.2 Employee is experienced and qualified to serve Employer as
its Manager, National Contracting.
1.3 Employer and Employee desire to enter into this Employment
Agreement upon the terms and conditions set forth herein.
IN CONSIDERATION FOR the mutual covenants and agreements
contained herein, and for other good and valuable consideration, the receipt and
adequacy of which is hereby admitted and acknowledged, the Parties agree as
follows.
2.0 DEFINITIONS.
2.1 "Anniversary Date" shall mean each yearly anniversary of
the Effective Date during the Term.
2.2 "Base Salary" shall mean that component of Employee's
compensation provided for pursuant to Section 6.1 of this Employment Agreement.
2.3 "Bonus Payment" shall have the meaning described in
Section 7.3 herein.
2.4 "Business of Employer" shall mean the business of
construction and demolition services.
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2.5 "Confidential Information" shall mean the Employer's trade
secrets and other proprietary or confidential business information. Such trade
secrets include, but are not limited to, the Employer's operating systems and
procedures, marketing strategy, budgets, business plans, forecasts, financial
information, knowledge concerning Employer's customers and their specialized
requirements (including any lists and databases pertaining thereto), any
technical, financial, or commercial data or other information, whether or not
patentable (including without limitation product formulas, research and
development reports, ideas, concepts, know-how, software, formulae, lay-outs,
improvements, design drawings, plans, processes or models), and computer source
codes, programs, and data bases not otherwise available to the public.
Confidential Information shall also mean all notes, memoranda, files, records,
writings and other documents which Employee shall prepare, use, or come into
contact with during Employee's employment with Employer which relate to any of
the foregoing, or are useful in any manner to the Business of Employer.
2.6 "Disabled" or "Disability" shall mean any one of the
following:
(a) A determination by two (2) competent Employer medical
doctors (one of who shall be the personal physician of the Employee involved, if
such Employee has a personal physician, and the other shall be a competent
medical doctor of Employer) that such Employee has become:
(i) mentally or physically incompetent;
(ii) incapable of managing such Employee's or his own
affairs; or
(iii) totally disabled.
(b) Employee or the Employer has received notification from
the insurance company with whom, for purposes of this Employment Agreement, the
insurance policy or policies insuring the life of the Employee is held, that
further premium payments are waived pursuant to disability waiver of premium
provisions of any such policy; or
(c) Employee is receiving full disability insurance and in the
case of (a) or (b) above, such condition continues for a period of one year from
the
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date initially so determined, or the aggregate of two years during any
continuous five year period. In either case, the Disability shall be deemed to
have "occurred" on the date the determination of Disability is first made.
(d) Employee has been unable to perform substantially all of
his duties hereunder for an aggregate of one hundred eighty (180) days during a
period of three hundred sixty (360) consecutive calendar days, as the result of
any illness, injury, accident, or medical condition of either a physical or
psychological nature.
(e) If there is a disagreement between Employee's personal
physician and Employer's physician, then those two physicians shall appoint a
third physician and the Employee and Employer shall be bound the decision of the
third physician.
2.7 "Discharge for Cause" shall mean termination of employment
for material misrepresentation, embezzlement, or dishonesty of Employee with
respect to the Business of Employer; intoxication or illegal drug use which
materially interferes with Employee's job performance; excessive absenteeism
which, in Employer's reasonable determination, materially and adversely
interferes with Employee's ability to perform Employee's duties; gross
insubordination; conviction of a felony adversely affecting Employee's ability
to carry on Employee's normal duties; breach of Employee's covenant to provide
Employee's exclusive services to Employer; or Employee's other material breach
of this Employment Agreement.
2.8 "Effective Date" shall mean August 4, 1998.
2.9 "Employee" shall mean Xxxxx X. Xxxxxxxx.
2.10 "Employer" shall mean Penhall International Corp., an
Arizona corporation, or any successor corporation or entity.
2.11 "Employment Agreement" shall mean this Employment
Agreement between Employer and Employee.
2.12 "Expiration Date" shall mean the earlier of (a) July 31,
2001, or (b) the date on which this Employment Agreement is terminated pursuant
to Section 7.1 herein.
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2.13 "Fiscal Year" shall mean the twelve-month period starting
July 1 and ending June 30.
2.14 "Party" shall mean Employer or Employee individually.
"Parties" shall mean the foregoing collectively.
2.15 "Shares" shall mean all shares of capital stock of
Employer now or hereafter owned or held by Employee.
2.16 "Stock Option Plan" shall mean that certain 1998 Stock
Option Plan adopted as of August 4, 1998, entered into between Employer and
Employee.
2.17 "Term" shall mean the period during which Employee is to
be employed by Employer as provided in Section 4.0 hereof.
3.0 EMPLOYMENT. Employer hereby employs Employee, and Employee
hereby accepts employment with Employer, upon the terms and conditions contained
in this Employment Agreement.
4.0 TERM. The term of this Employment Agreement shall be for a
period of three (3) years, commencing on August 4, 1998, and ending on July 31,
2001, unless Employee's employment is sooner terminated pursuant to the
provisions of this Employment Agreement. The Term shall thereafter automatically
be extended and such extensions shall be for consecutive twelve (12) month
periods unless terminated as hereinafter provided.
5.0 CAPACITIES AND DUTIES.
5.1 Title. Employee is hereby employed by Employer as
Employer's Manager, National Contracting, for the Term. Employee agrees that
Employee will perform such duties as are customarily performed by a person
holding such positions in similar companies, and will report directly to the
President of Employer. Employee will, at all times, abide by all personnel
policies of Employer, as in effect from time to time, and will faithfully,
industriously, and to the best of Employee's ability, experience, and talents,
perform all of the duties that may be required of and from Employee pursuant to
the terms of this Employment Agreement.
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5.2 Place of Service. Employee shall render these services at
Employer's principal place of business in Anaheim, California, or at such other
locations as Employer designates from time to time. However, except for normal
business travel, Employee's principal place of business shall remain in Anaheim,
California, during the Term, and Employee will not be required to relocate.
5.3 Exclusive Services. Employee agrees to devote Employee's
best efforts and exclusive time to rendering services to Employer. Except as
provided herein, Employee is specifically restricted from being employed by any
other employer while under Employer's employ pursuant to this Employment
Agreement unless Employee has obtained Employer's written consent to do so. If
during the Term, Employee engages in other material work activities in breach of
this Section 5.3 for compensation or other consideration, or receives
compensation for activities associated with Employee's employment hereunder from
sources other than Employer, it shall be grounds for Discharge for Cause.
Nothing in this Section shall prohibit Employee from engaging in activities that
do not reasonably interfere with his duties for Employer, such as volunteering
for charities, church or other similar organizations.
6.0 BASE COMPENSATION AND NORMAL BENEFITS.
6.1 Base Salary. During the Term hereof, Employee shall
receive a Base Salary of One Hundred Thousand Dollars ($100,000.00) per year,
paid in accordance with Employer's regular payroll practices as same may exist
from time to time.
6.2 Bonus. Pursuant to Employer's compensation policy,
Employee is a member of Employer's executive group and shall be a participant in
Employer's executive bonus pool. Employee understands that distributions from
such executive bonus pool are discretionary and are made in accordance with
Employer's bonus policies as in existence from time to time. Notwithstanding any
change in Employer's bonus practices and policies (whether occurring as a result
of Employer's acquisition or otherwise), Employee shall be entitled to
participate in any bonus programs in existence from time to time based upon the
same criteria applicable to other members of Employer's executive group.
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6.3 Expenses.
(a) Standards. Employee is authorized to incur reasonable
business expenses for promoting the Business of Employer, including expenses for
travel, entertainment and similar items. The amount, nature and extent of all
such expenses shall always be subject to the control, supervision and direction
of the President. Employee is expected to spend a reasonable amount of time
promoting the Business of Employer.
(b) Reimbursement. Employee's duties are not confined to
in-office meetings or activities, or meetings or activities occurring only
during office hours. Rather, Employee shall participate in business discussions
as necessities arise. In this regard, Employee is expected, as part of his
duties, to expend funds in reasonable amounts in connection with such business
meetings and provide facilities for the furtherance of such business activities,
including business entertainment and business meetings. In addition, Employee
shall be required to obtain an automobile for business use in connection with
the services to be rendered by Employee under this Employment Agreement. Such
costs shall be reimbursed by Employer, but shall always be subject to the
control, supervision and direction of the Board of Directors.
6.4 Benefits. During the Term hereof, Employer shall also
provide Employee in accordance with Employer's policy the following benefits:
(a) Group medical and dental insurance for Employee.
(b) Group life and disability insurance for Employee.
(c) Retirement benefits, including 401(k) plan on the same
basis as Employer provides to its other executive employees from time to time.
(d) Holidays on the same basis as Employer provides to its
other executive employees from time to time.
(e) Paid vacation and sick time on the same basis as Employer
provides to its other executive employees from time to time.
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(f) Use of a company automobile, reasonably satisfactory to
Employee, or if Employee uses his own automobile, then Employee shall be
reimbursed for all such automobile expenses.
(g) Employer Stock Option Plan.
6.5 Withholding. Employee authorizes Employer to make any and
all applicable withholdings or deductions for federal and state taxes and other
items Employer may be required to withhold or deduct, as such items may exist
from time to time.
6.6 Review. Employee's compensation and benefits will be
subject to annual review and adjustment effective on every Anniversary Date
Employee's and in no event shall Employee's Base Salary be decreased during the
Term.
7.0 TERMINATION.
7.1 Termination of Agreement. This Employment Agreement may be
terminated prior to July 31, 2001, as follows:
(a) Death. Immediately upon the death of Employee.
(b) Notice. By (i) resignation by Employee or (ii) discharge,
other than Discharge for Cause, by Employer.
(c) Discharge for Cause. Upon thirty (30) days written notice
by Employer to Employee outlining the reason for any Discharge for Cause;
provided, however, Employee shall have thirty (30) days following the receipt of
such notice to cure such reasons for Discharge for Cause. If Employee does not
cure such reasons for Discharge for Cause within thirty (30) days, Employee
shall be terminated following the thirty (30) day written notice period;
provided, however, if Employee commences to effect a cure within the foregoing
thirty (30) day period, Employee shall be permitted such additional time as may
be reasonable (based on the nature of the breach, the possibility for cure, and
the effect of delay on Employer) to cure so long as Employee diligently
continues to seek to effect a cure.
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(d) Breach. Upon thirty (30) days written notice by the
non-breaching Party to the breaching Party of a breach of this Employment
Agreement. The non-breaching Party shall have thirty (30) days following the
receipt of the notice to cure the breach or otherwise make suitable arrangements
or accommodations to which the non-breaching Party agrees. If the non-breaching
Party does not cure such breach or otherwise make such accommodations within
thirty (30) days, this Employment Agreement shall be terminated within thirty
(30) days thereafter.
(e) Disability. Immediately upon Employer giving written
notice to Employee that Employee has become Disabled,
(f) Reduction in Position, Title or Duties. Upon thirty (30)
days written notice by Employee if Employee's position, title, or duties are
reduced.
7.2 Effect of Termination. Except as expressly provided
herein, upon the Expiration Date, Employer shall not have any obligation to
provide Employee's Base Salary, expenses, reimbursements, or employee benefits,
other than Base Salary accrued up to and including the Expiration Date and other
employee benefits required to be provided by applicable law. Such benefits shall
be paid to Employee within fifteen (15) days after termination.
7.3 Termination Other than for Cause, Resignation, Disability,
Breach or Death. In the event of termination of this Employment Agreement due to
any reason other than Discharge for Cause, breach by Employee, resignation or
Disability or death of Employee, Employee shall be entitled to severance pay
equal to one (1) year's Base Salary plus an amount equal to the bonus paid to
Employee pursuant to Section 6.2 hereof during the fiscal year ended June 30,
1998 (the "Bonus Payment") to be paid over twelve (12) months, in accordance
with Employer's payroll policies. The Bonus Payment shall be in lieu of the
bonus payments that Employee would have received during the remainder of the
Term. In addition, for a period of twelve (12) months, Employee shall be
entitled to the benefits provided in Sections 6.4(a) and 6.4(b). Such Base
Salary/Bonus Payments are in lieu of, and not in addition to, severance benefits
under any other Employer plan.
7.4 No Duty to Mitigate. Employee shall have no duty to
mitigate damages in the event that Employee is terminated and receives payments
pursuant to Section 7.3 herein. However, Employer's obligation to make such
payments
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shall be reduced on a dollar for dollar basis, to the extent that Employee has
secured employment or becomes engaged with another business and earns a salary.
8.0 PROTECTION AGAINST DISCLOSURE OF CONFIDENTIAL INFORMATION.
8.1 Access to Confidential Information. Employee recognizes
and acknowledges that Employee will have access to certain Confidential
Information of the Employer and that such information constitutes Employer's
valuable, special and unique property.
8.2 Acknowledgment. Employer and Employee acknowledge that the
Confidential Information is sophisticated, is not generally known to the public
or to others in Employer's industry, and has entailed the expenditure of
substantial cost and effort on Employer's behalf over a long period of time.
Therefore, Employer and Employee agree that the definition of Confidential
Information applies to this Employment Agreement, without regard to whether any
or all of the matters would be deemed confidential, material, or important.
Employer and Employee stipulate that the matters are confidential, material and
important and gravely affect the effective and successful conduct of the
Business of Employer.
8.3 Property of Employer. All Confidential Information, and
all records, forms, supplies or reproduced copies provided by Employer to
Employee, or disclosed by Employer to Employee, or obtained by Employee during
the performance of Employee's services under this Employment Agreement, shall
remain Employer's property and shall be accounted for and returned by Employee
upon Employer's demand. Such items shall include, but not be limited to, items
such as documents; interoffice memos; records; any correspondence (regardless of
the author) notebooks; client lists; or any similar items provided by Employer.
It is expressly understood that the Employee's license to the possession of any
Confidential Information, forms or supplies, or any copies thereof, are to
fulfill Employee's obligations to Employer under this Employment Agreement, and
Employee has no other right or proprietary interest in those items.
8.4 Protection of Confidential Information.
(a) Employee agrees to hold the Confidential Information in
strictest confidence for Employer's sole benefit.
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(b) Employee specifically agrees that Employee will not, at
any time, in any fashion, form or manner, either directly or indirectly,
divulge, publish, disclose or communicate to any person, firm or corporation any
of the Confidential Information, or use the same for Employee's own benefit or
to Employer's detriment.
(c) This restriction does not apply to information customarily
divulged in the ordinary course of Employer's business, or information that is
already in the public domain.
8.5 Equitable Relief. Employer and Employee agree that any
breach of this section is material, and that due to the irreparable nature of
the harm Employer may suffer, Employer shall be entitled to injunctive and
equitable relief in addition to any other legal remedies Employer may have.
8.6 Ownership and Assignment of Inventions. Employee agrees
that, as to any techniques, processes, innovations, or inventions ("Inventions")
made by Employee, solely or jointly with others, during the term hereof or prior
to the Expiration Date which are made in whole or in part with Employer's
equipment, supplies, facilities, trade secrets, or time, or which relate at the
time of conception or reduction to practice to the business of Employer or the
Employer's actual or demonstrably anticipated research or development of
Employer or which relate to any work performed by the Employee for Employer,
such Inventions shall belong to Employer and Employee hereby assigns all right,
title, and interest to such Inventions to Employer.
9.0 ASSIGNMENT, SUCCESSORS & ASSIGNS. Employee shall not have
any right to assign, delegate or otherwise transfer this Employment Agreement,
or any of Employee's rights, duties or any other interests herein to any party,
and any such purported assignment shall be null and void. Employer may, with
notice to Employee assign, delegate and transfer its rights and obligations
hereunder to any successor corporation or entity which continues the Business of
Employer and has the capacity to perform pursuant to the provisions of this
Employment Agreement and as otherwise provided in this Employment Agreement.
Except as provided herein, this Employment Agreement shall inure to and be
binding upon each of the Parties and their respective legal representatives,
heirs, successors, and assigns.
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10.0 ENTIRE AGREEMENT.
10.1 Sole Agreement. This Employment Agreement (including any
attachments and exhibits hereto) contains the Parties' sole and entire agreement
regarding the subject matter hereof, and supersedes any and all other agreements
between them, except with respect to any continuing obligations of Employee
under confidentiality, non-disclosure or invention assignment agreements
executed by Employee for Employer's benefit.
10.2 No Other Representations. The Parties acknowledge and
agree that no Party has made any representations (a) concerning the subject
matter hereof, or (b) inducing the other Party to execute and deliver this
Employment Agreement, except those representations specifically referenced
herein. The Parties have relied on their own judgment in entering into this
Employment Agreement.
10.3 No Reliance. The Parties further acknowledge that any
statements or representations that may have been made by either of them to the
other are void and of no effect. No Party has relied on any such statements or
representations in dealing with the other(s).
11.0 ARBITRATION. Arbitration in accordance with the then most
applicable rules of the American Arbitration Association shall be the exclusive
remedy for resolving any dispute or controversy between the Parties to this
Agreement, including, but not limited to, any dispute regarding the application,
interpretation or validity of this Agreement. The arbitrator shall be empowered
to grant only such relief as would be available in a court of law. In the event
of any conflict between this Agreement and the rules of the American Arbitration
Association, the provisions of this Agreement shall be determinative. If the
Parties are unable to agree upon an arbitrator, they shall select a single
arbitrator from a list of seven arbitrators designated by the office of the
American Arbitration Association having responsibility for the city in which the
Company's headquarters are located, all of whom shall be retired judges who are
actively involved in hearing private cases, who are on the "Independent" (or
"Gold Card") list, and who are residents of the area in which the Company's
headquarters are located. If the Parties are unable to agree upon an arbitrator
from such list, they shall each strike names alternatively from the list, with
the first to strike being determined by lot. After each Party has used three
strikes, the remaining name on the list shall be the arbitrator. Unless mutually
agreed otherwise by the Parties,
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any arbitration shall be conducted at a location within fifty (50) miles from
the location of the Company's headquarters. If the Parties cannot agree upon a
location for the arbitration, the arbitrator shall determine the location within
such fifty (50) mile radius. The fees and expenses of the arbitrator shall
initially be borne equally by the parties; provided, however, that each Party
shall initially be responsible for the fees and expenses of its own
representatives and witnesses. The prevailing Party in the arbitration
proceeding, as determined by the arbitrator, and in any enforcement or other
court proceedings, shall be entitled to the extent provided by law to
reimbursement from the other party for all of the prevailing Party's costs
(including but not limited to the arbitrator's compensation), expenses and
reasonable attorney's fees. Judgment may be entered on the award of the
arbitrator in any court having jurisdiction.
12.0 NO MODIFICATIONS OR WAIVERS.
12.1 Must Be Written. Waivers or modifications of this
Employment Agreement, or of any covenant, condition, or limitation contained
herein, are valid only if in writing. Such writing must be duly executed by the
Parties.
12.2 No Use As Evidence: One or more waivers or modifications
of any covenant, term or condition in this Employment Agreement by any Party
shall not be construed by any other Party as a waiver or modification applicable
to any subsequent breach of the same covenant, term or condition. Evidence of
any such waiver or modification may not be offered or received in evidence in
any proceeding, arbitration, or litigation between the Parties arising out of or
affecting this Employment Agreement, or a Party's rights or obligations under
it. This limitation does not apply if the waiver or modification is in writing
and duly executed as provided above.
13.0 PROFESSIONAL FEES. If a lawsuit, arbitration or other
proceedings are instituted by any Party to enforce any of the terms or
conditions of this Employment Agreement against any other Party hereto, the
prevailing Party in such litigation, arbitration or proceedings shall be
entitled, as an additional item of damages, to such reasonable attorneys' and
other professional fees and costs (including but not limited to witness fees),
court costs, arbitrators' fees, arbitration administrative fees, travel
expenses, and other out-of-pocket expenses or costs of such other proceedings,
as may be fixed by any court of competent jurisdiction, arbitrator or other
judicial or quasi-judicial body having jurisdiction thereof,
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whether or not such litigation or proceedings proceed to a final judgment or
award. For the purposes of this Section, any Party receiving an arbitration
award or a judgment for damages or other amounts shall be deemed to be the
prevailing Party, regardless of amount of the damage awarded or whether the
award or judgment was based on all or some of such Party's claims or causes of
action.
14.0 GOVERNING LAW/VENUE. This Employment Agreement shall be
governed pursuant to the laws of the State of California. For purposes of this
Employment Agreement, sole venue shall be the County of Orange, and State of
California.
15.0 SEVERABILITY. If any part, clause, or condition of this
Employment Agreement is held to be partially or wholly invalid, unenforceable,
or inoperative for any reason whatsoever, such shall not affect any other
provision or portion hereof, which shall continue to be effective as though such
invalid, inoperative, or unenforceable part, clause or condition had not been
made.
16.0 INTERPRETATION.
16.1 Section Headings. The section and subsection headings of
this Employment Agreement are included for purposes of convenience only, and
shall not affect the construction or interpretation of any of its provisions.
16.2 Capitalized Terms. Except as otherwise expressly provided
herein, all capitalized terms defined in this Employment Agreement shall have
the meaning ascribed to them herein.
16.3 Gender and Number. Whenever required by the context, the
singular shall include the plural, the plural shall include the singular, and
the masculine gender shall include the neuter and feminine genders and vice
versa.
17.0 NOTICE. For purposes hereof, delivery of written notice
shall be complete upon personal delivery, or upon mailing if mailed with proper
postage paid by United States registered or certified mail, addressed to the
Party at the address set forth below, or to such other mailing address as the
Parties hereto may designate by written notice given in accordance with this
section. Notice may also be given upon receipt of electronic facsimile, provided
that any facsimile notice shall only be deemed received if (a) the transmission
thereof is confirmed, and (b) facsimile notice is followed by written notice,
made either by (i) personal delivery
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thereof, or (ii) via deposit in registered or certified mail, postage prepaid,
within three (3) business days following the facsimile notice. Notices shall be
addressed to the Parties as follows:
Employer: PENHALL
INTERNATIONAL CORP.
0000 Xxxxxxx Xxx
Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With required copy to
Employer's Attorney:
Telephone No.: ( )
Facsimile No.: ( )
Employee: Xxxxx X. Xxxxxxxx
0000 Xxxxxxx Xxx
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With required copy to: THE XXXXX FIRM
0000 Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Any Party may change the address to which to send notices by
notifying the other Party of such change of address in writing in accordance
with this section.
18.0 JOINT PREPARATION. All Parties to this Employment
Agreement have negotiated it at length, and have had the opportunity to consult
with and be represented by their own competent counsel. This Employment
Agreement is therefore deemed to have been jointly prepared by the Parties, and
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any uncertainty or ambiguity existing in it shall not be interpreted against any
Party under the presumptions of California Civil Code Section 1654, but rather
shall be interpreted according to the rules generally governing the
interpretation of contracts.
19.0 THIRD PARTY BENEFICIARIES. Except as provided herein, no
term or provision of this Employment Agreement is intended to be, or shall be,
for the benefit of any person, firm, organization or corporation not a Party
hereto, and no such other person, firm, organization or corporation shall have
any right or cause of action hereunder.
20.0 COOPERATION AND FURTHER ACTIONS. The Parties agree to
perform any and all acts to execute and deliver any and all documents necessary
or convenient to carry out the terms of this Employment Agreement.
21.0 COUNTERPARTS. This Employment Agreement may be executed
in one or more counterparts, each of which when executed and delivered shall be
an original, and all of which when executed shall constitute one and the same
instrument.
22.0 LIMITATION ON DAMAGES. Employee hereby acknowledges and
agrees that: (i) Employer, acting through its Board of Directors, shall have the
right and power to remove Employee from office and terminate his employment at
any time and for any reason whatsoever without incurring liability to Employee
other than payment of the Base Salary, Bonus Payment, benefits, and other
compensation that may be required under this Employment Agreement, and (ii)
provided that Employer has not breached this Employment Agreement or violated
applicable laws, that the Employer shall have no liability whatsoever in
connection with any claims by Employee that such termination has damaged
Employee's career or prospects for securing other employment or that such
termination has impaired the value of Employee's investment in Employer. The
maximum liability of the Employer on account of this Agreement (or any breach of
this Employment Agreement) under no circumstances shall exceed the amount of
Base Salary, Bonus Payment, benefits and other compensation required to be paid
hereunder. However, the Parties agree that this Section 22.0 applies only to a
breach of the Employment Agreement by Employer and not to any other cause of
action Employee may have, including claims in tort.
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The Parties hereto have set their hands the day and year first above
written.
PENHALL
INTERNATIONAL CORP.,
an Arizona corporation
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Its: President
"EMPLOYER"
/s/ Xxxxx X. Xxxxxxxx
------------------------------------------
XXXXX X. XXXXXXXX
"EMPLOYEE"
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