EXHIBIT 10.21
EMPLOYMENT AGREEMENT
for
XXXXXXX XXXXXXXX
THIS EMPLOYMENT AGREEMENT (the "Agreement") dated as of the 29th day
of August, 2003 by and between XXxX.XXX., INC. a Delaware corporation (the
"Employer" or "Company") and XXXXXXX XXXXXXXX, an individual (the
"Employee").
WITNESSETH
WHEREAS, Employee is one of the founders of the primary operating and
wholly owned subsidiary of the Company, such subsidiary, operating under
the name of New Mexico Software, Inc. a New Mexico corporation (NMS);
WHEREAS, since its inception of NMS, Employee has served as President
and Chief Executive Officer, as well as serving on the Board of Directors;
WHEREAS, pursuant to a reverse stock acquisition, NMS became a wholly
owned subsidiary of the Company on August 3, 1999;
WHEREAS, the Board of Directors of the Company (the "Board") believes
that the success of the Company is based upon the know how and abilities of
Employee and considers it essential that Employee remain as an employee of
the Company, serving as President and Chief Executive Officer;
WHEREAS, Employee desires to provide his services as President and
Chief Executive Officer in connection with the Company's business; and
WHEREAS, both parties desire to clarify and specify the rights and
obligations that each have with respect to the other in connection with
such employment.
NOW, THEREFORE, in consideration of this Agreement and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by the parties, the parties hereto do hereby agree as follows:
1. Employment. The Company hereby employs Employee as its President
and Chief Executive Officer and Employee hereby accepts such employment and
agrees to render his services as an Employee of the Company for the term of
this Agreement (as specified in Section 6. hereof), all subject to and on
the terms and conditions herein set forth.
2. Duty. Employee shall be employed in the business of the Company
and his duties and responsibilities shall be consistent with the duties
performed and responsibilities undertaken by a President and Chief
Executive Officer of a company of its size of which stock is publicly
traded. As such, Employee shall have primary responsibility for following
strategic and financing activities: mergers and acquisitions,
capital raising activities, shareholder relations, exploring and sourcing
new and related technologies, identify and pursue new sources of revenue,
and the hiring and termination of executive employees. Employee's duties
and responsibilities shall be subject only to the direction and authority
of the Board. Unless Employee expressly consents to the contrary, Employee
shall hold the office of President and Chief Executive Officer of NMS and
the Company, as well and along with any other wholly-owned subsidiary of
either the Company or NMS.
3. Full-time Employment. Employee agrees to devote his full-time
services and efforts and attention to the business and affairs of the
Company. Notwithstanding the foregoing, the Employee shall not be
precluded from engaging in other business activities, including, but not
limited to, capital raising activities or from serving on the board of
directors of other entities, whether it be a subsidiary of the Company or
otherwise and receiving additional compensation therefore, provided that
any such other activities do not in a material way substantially interfere
with the Employee's responsibilities with the Company.
4. Compensation; Bonuses.
A. In consideration for his services to be performed under this
Agreement, and as compensation therefore, Employee shall receive, in
addition to all of the benefits provided in this Agreement, a base salary
(the "Base Salary") of Two Hundred Thousand Dollars ($200,000) per annum.
B. Base Salary shall be paid quarterly in the form of 50 shares
of the Series A Convertible Preferred stock of XXXX.xxx (the "Salary
Shares"). Salary Shares will be payable at the end of each fiscal quarter
that Employee remains an employee of Company. In order for Employee to pay
any applicable income taxes that may be due on the Base Salary, Employee
shall be allowed to convert up to 25 Salary Shares each quarter (the
"Converted Shares"). Salary Shares may be converted and sold on the open
market subject to the following conditions:
1. Employee shall promptly execute necessary agreements
required to allow him to participate in the Convertible Preferred stock
offering. No Convertible Preferred shares shall be issued until all
necessary documentation is completed.
2. Salary Shares may be converted to tradable stock per
the Convertible Preferred stock agreement with the exception that
conversion shall only happen during the Sale Window as defined below
3. The Converted Shares may be sold during a thirty (30)
day period that commences after 5 trading days have elapsed following the
filing with the Securities and Exchange Commission of the quarterly or
annual earnings of XXXX.xxx (the "Sale Window").
4. The shares shall be sold in a manner designed to
minimize the impact on the open market share price of XXXX.xxx.
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5. All costs of conversion and issuance of tradable stock
to Employee shall be borne by Company. All costs of the sale of the
tradable shares shall be borne by Employee.
B. Employee shall be entitled to a bonus from time-to-time as
may be determined in the sole discretion of the Board of Directors.
C. Commencing as of January 1, 2003, and each succeeding year
of the term, the Base Salary shall be reviewed by the Board of the Company,
at which time the Base Salary hereunder (and any other benefits) may be
increased (but not decreased) by the Board in its sole discretion.
5. Benefits.
A. Stock Options.
(i) Previous Options. Under a previous employment
agreement between the Company and the Employee, the Employee was
granted an option to acquire 500,000 shares of common voting
stock of the Company, such Options having a five-year term, and
with an annual graduated step vesting over a five (5) year
period, at an exercise price equal to $.74 (the "Previous
Options"). By mutual consent of the parties to this Agreement,
the Previous Options are hereby terminated.
(ii) Grant of Options. As partial compensation under this
Agreement, the Company shall grant to Employee, contemporaneous
with the approval of this Agreement by the Company, the option to
purchase up to 500,000 shares of Common Stock under the following
conditions:
a) The options shall be granted pursuant to the
Company's Stock Option Plan and each capitalized
term in this subparagraph shall have the meaning
set forth in the Plan.
b) The Exercise Price of the Option Shares shall be
the greater of $0.06 per share or 110% of the Fair
Market Value per share of Common Stock on the
Grant Date as provided in the Plan.
c) The Expiration Date of the options shall be
December 31, 2007.
d) To the extent permitted by law, the options shall
be deemed Incentive Options, as defined in the
Plan.
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e) The options shall be fully vested and immediately
exercisable upon granting.
f) To the extent permitted in the Plan, the options
may be exercised in a "cashless" manner as
provided in Section 2.1(a)(2) of the Plan,
including, without limitation, the financing of
the exercise price as provided in Section 3.1 of
the Plan to the maximum extent permissible.
B. Health Insurance. The Company shall provide group health,
hospitalization, major medical insurance and other similar benefits for
Employee as the Company has adopted or may hereafter adopt for the benefit
of its executives, officers and employees.
C. Vacation. During the term, Employee shall be entitled to
three (3) weeks of vacation annually.
D. Participation in Retirement and Employee Benefit Plans;
Designation in Management Bonus Plan. Employee shall participate in any
plan of the Company related to vacation, sick leave, stock options, stock
purchase, stock grants, pension, thrift, profit sharing, group life
insurance, medical coverage, education, early retirement or employee
benefits that the Company has adopted or may hereafter adopt for the
benefit of its executives, officers and/or employees. Further, in the
event that the Company establishes a management bonus plan, or similar
benefit, or bonus program for executive employees that creates a class
distinction between executive employees (and other employees, if
applicable) the Company agrees that Employee shall always be designated as
a member of the class entitled to the greatest benefits. Similarly, during
the Term, Employee shall be entitled to receive other equity based
compensation, with respect to the Company and its subsidiaries (whether now
existing or hereafter created), the terms and conditions of which shall be
subject to the sole discretion of the Company's Board.
E. Expenses. The Company shall reimburse Employee for all
reasonable out-of-pocket expenses incurred by Employee in connection with
the business of the Company and in performance of his duties under this
Agreement. Reasonable out-of-pocket expenses shall include, without
limitation, expenses incurred for travel, hotels, meals, telephone
(including cellular telephone), facsimile, computer and other like
expenses. Such expenses shall be promptly reimbursed upon Employee's
presentation to the Company of an itemized accounting of such expenses with
reasonable supporting data.
F. Additional Perquisites. Employee shall be entitled to an
allowance of up to $1,000 per month as an automobile allowance for the
purchase or lease of an automobile during the Term. The actual amount of
the allowance shall be based on the actual lease and maintenance costs.
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6. Term of Employment; Notice of Nonrenewal. The effective Term of
this employment shall commence on, and shall be retroactive to, January
1st, 2003 and run for a period of three (3) years (the "Term"), unless
terminated prior thereto in accordance with Section 8 hereof. Unless
Employee and the Company renew or extend this Agreement in writing prior to
the end of the Term, upon terms and conditions satisfactory to each of
them, the Term of this Agreement shall automatically be extended for one
(1) additional year, upon the same terms and conditions set forth herein.
The Company shall provide Employee with written notice of the Company's
intention not to renew or extend this Agreement upon the terms and
conditions at least as favorable as those contained herein at least nine
(9) months prior to the end of the Term (the "Nonrenewal Notice"). In the
event that the Company shall fail to render the Nonrenewal Notice at least
nine (9) months prior to the end of the Term, the Term of this Agreement
shall continue and accordingly, Employee shall be entitled to the
continuation of the Base Salary, bonus (at a rate no less than that paid
during the previous year), and all benefits under Section 5 of this
Agreement and otherwise (including expense allowance and reimbursement),
until such time as the Nonrenewal Notice is given and thereafter, for a
period of nine (9) months from the date that the Employee actually receives
the Nonrenewal Notice.
7. Confidentiality.
A. Employee agrees and covenants that, at any time during his
employment with the Company or thereafter, he will not, without first
obtaining the written permission of the Company, divulge to any person or
entity, except as necessary in accordance with his duties hereunder, use
(either himself or in connection with any business) any Confidential
Information (as hereafter defined) obtained during the course of his
employment under this Agreement, unless such disclosure is expressly
authorized by the Company in writing, is pursuant to a court order or other
judicial process, required to be disclosed in connection with litigation
involving the Company, or affiliate thereof, or in any reports or
applications required by law to be filed with any governmental agency.
B. The term "Confidential Information" shall mean any material
non-public information disclosed to Employee or known, learned, created or
observed by him as a consequence of or through his employment by the
Company, or any Affiliate thereof, not generally known in the public
domain, about the business activities, services and processes, including
but not limited to information concerning methods of doing business,
marketing, advertising, promotion, publicity, research, finances,
accounting, trade secrets, business plans, customer lists and records and
potential customers of the Company and its subsidiaries, whether developed
or acquired by the Company. Confidential Information shall also include
information regarding third parties received under confidentiality
agreements by the Company or its subsidiaries. All improvements, new
products or new services derived from such Confidential Information shall
be the sole property of the Company. Confidential Information shall not
include any information that becomes generally available to the public
otherwise than through disclosure by Employee. Upon termination of his
employment hereunder, Employee agrees to return to Employer all property of
Employer of which Employee is in
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possession, including any copies thereof, as well as all notebooks, and
other data relating to records, customers, investigations, or management
studies or inventions made by him.
C. Disclosure of Intellectual Property. Employee will fully
and promptly disclose to Employer all inventions, discoveries, know-how or
improvements, whether or not patentable and including works of authorship
(hereinafter "Intellectual Property") which Employee may conceive or make,
alone or with others, during the term of this Agreement whether or not
during the working hours (collectively "Term I/P"). Employee also will
promptly disclose to Employer all Intellectual Property which Employee may
conceive or make, alone or with others, within one (1) year after the
Termination Date, which relates to, or results from, or is suggested by:
(1) activities of Employer, its Affiliates, or licensees; (2) any
proprietary information of Employer; or (3) any work Employee may have done
for Employer or any Affiliate (collectively "Post-Term I/P").
D. Assignment of All Intellectual Property. The parties agree
that All Post-Term I/P and any Term I/P which meets the criteria for Post-
Term I/P described in clauses (1) through (3) of the last sentence of
Section 7(C) above is the sole and exclusive property of Employer.
Employee shall assign to Employer or Employer's nominee all right, title
and interest in and to any such Intellectual Property, and Employee shall
execute and deliver all documents considered by Employer to be necessary or
desirable to secure patent, copyright or other legal protection in any
country and to vest title in Employer or Employer's nominee. By entering
into this Agreement, Employer does not waive and expressly retains its shop
rights, works for hire, implied licenses and other rights resulting from
its employment of Employee.
8. Termination.
A. Cause. Notwithstanding the terms of this Agreement, the
Company, by action of a two-thirds (2/3) vote of the Board of Directors,
may issue written notice to Employee, discharge Employee and terminate this
Agreement for cause ("Cause") in the event that (i) Employee shall engage
in an act of fraud, theft or embezzlement in connection with his employment
hereunder; (ii) Employee engages in material gross misconduct that has a
material adverse effect on the Company; (iii) Employee engages in a
material act of dishonesty; or (iv) Employee shall be convicted of a felony
involving a high degree of moral turpitude, whether or not related to the
performance of his duties hereunder. Notwithstanding the foregoing to the
contrary, prior to discharging Employee pursuant to clause (ii) of the
immediately preceding sentence, the Company shall give Employee thirty (30)
days' prior written notice of any breach or failure and an opportunity to
cure any such breach or failure. Employee shall not, under any
circumstances, be deemed to have been terminated for Cause unless and until
there shall have been delivered to him a copy of a resolution duly adopted
by the affirmative vote of not less than two-thirds (2/3) of the Board of
Directors (with Employee not being permitted to vote on this matter) at a
meeting of the Board of Directors held for that purpose (after thirty (30)
days notice to Employee and an opportunity for Employee, together with
counsel, to be heard before the Board) finding that in the reasonable, good
faith opinion of the Board, Employee was guilty of conduct
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constituting cause and specifying the particulars thereof in detail. If
there is any dispute as to whether Employee's employment has been
terminated with or without Cause, Employee shall continue to receive all
Base Salary, bonus (at a rate no less than that paid in respect of the
previous year), and benefits hereunder as if there was no termination,
unless and until it is finally determined that such termination was for
Cause, at which time all Base Salary, bonus and benefits hereunder shall
thereupon cease.
B. Incapacity or Disability. Should Employee become
incapacitated or disabled to the extent that, in the reasonable, good faith
opinion of the Board of Directors, Employee is unable to and does not
substantially perform his duties for a period of six (6) consecutive
months, the Company may terminate this Agreement upon three (3) months'
prior notice, provided that Employee does not return to his employment
substantially in this full capacity during such three (3) month period. In
the event the Company does not maintain disability insurance and this
Agreement is terminated as a result of Employee's incapacity or disability,
Employee shall be entitled to receive his Base Salary and all benefits for
a period of twenty-four (24) months following termination of his employment
due to incapacity or disability.
C. Death. This Agreement shall terminate immediately upon the
death of Employee. In the event that Company does not maintain life
insurance in full force and effect upon Employee's death, Employee's
spouse, or any alternative beneficiary, shall be entitled to receive
promptly a payment equal to twelve (12) months' Base Salary.
D. Termination Without Cause; Good Reason. If employee is
discharged and this Agreement is terminated without Cause (Cause being
defined as a reason for termination set forth in Section 8(A) above) or by
reason other than as set forth in Section 8(B) or 8(C) hereof, or if
Employee resigns for Good Reason (as hereinafter defined) Employee shall
receive upon any such termination of, or resignation by, Employee: (A) a
lump sum payment equal to the greater of (i) the Base Salary set forth in
Section 4 for the remainder of the Term as such sums become due or would
become due, or (ii) twelve (12) months (such period, to the extent it
exceeds the Term, being hereinafter sometimes referred to as the "Extended
Period"); (B) a bonus based on the greater of the bonus paid in the last
full calendar year or 25% of the then current Base Salary whether or not
there was a bonus in the prior calendar year; (C) all benefits under
Section 5 hereof for the remaining Term or Extended Period, as applicable,
and (D) any additional amount that may be due pursuant to Section 8(E)
below. In addition, any and all options, warrants or other contractual
rights to acquire equity securities of the Company shall automatically vest
and become exercisable, subject only to restrictions pursuant to applicable
securities law. For purposes of this Agreement, "Good Reason" shall mean
(i) a relocation of Employee, without his prior written consent, outside of
the Albuquerque area; or (ii) a failure to maintain Employee as the
President and Chief Executive Officer of the Board of the Company or any
subsidiary, or (iii) the failure to be nominated by management of the
Company for election to the Board, or (iv) a material diminution by the
Company of Employee's responsibilities, which change would cause Employee's
position with the Company or any subsidiary to become one of significantly
less responsibility, importance or scope from that
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contemplated by Section 2 hereof, or (v) a willful failure in bad faith to
pay the Base Salary or bonus to Employee when due or another material
breach of this Agreement by the Company that has a material adverse effect
on Employee, or (vi) a Change of Control of the Company (as defined below).
All amounts due Employee under this Section 8 shall be paid to Employee
without offset for any amounts earned by Employee in any other employment
or form any other source. For purposes of this Agreement, a "Change of
Control" of the Company shall have occurred at such times as (a) beneficial
ownership of more than fifty percent (50%) of the voting securities of the
Company is transferred to a single entity or combined voting block or
"group" as contemplated by, or required to comply with the provisions of,
Rule 13d, promulgated under the Securities Exchange Act of 1934, as amended
(or any successor rule thereto), or (b) a merger, consolidation or sale of
all or substantially all the assets of the Company occurs.
E. Additional Amount. If in the opinion of tax counsel
selected by Employee and reasonably acceptable to the Company, Employee has
or will receive any compensation or recognize any income (whether or not
pursuant to this Agreement or any plan or other arrangement of the Company)
which constitutes an "excess parachute payment" within the meaning of
Section 280G(b)(1) of the Internal Revenue Code of 1986, as amended (the
"Code") (or for which a tax is otherwise payable under Section 4999 of the
Code), then the Company shall pay Employee an additional amount (the
"Additional Amount") equal to the sum of (i) all taxes payable by Employee
under Section 4999 of the Code with respect to all such excess parachute
payments and the Additional Amount, plus (ii) all federal, state and local
income taxes payable by Employee with respect to the Additional Amount.
The amounts payable pursuant to this Section 8(E) shall be paid by the
Company to Employee within 30 days of the written request therefor made by
Employee.
9. Noncompetition Covenants.
A. Covenant. Employee agrees that commencing as of the date
hereof and for a period of one (1) year following the termination of his
employment with the Company. Employee will not, directly or indirectly:
(a) engage in or become interested (whether as owner, principal, agent,
stockholder, member, partner, trustee, joint venturer, lender or other
investor, director, officer, employee, consultant or through the agency of
any corporation, partnership, limited liability company, association or
agent or otherwise) in any business or enterprise that shall then be in
whole or in substantial part competitive with the business conducted by the
Company (or any other Affiliate thereof) (the "Competitors").
Notwithstanding the foregoing, ownership of less than five percent (5%) of
the outstanding securities of any class of any entity listed on a national
securities exchange or traded in the over-the-counter market shall not be
considered a breach of this Section 9 if Employee (i) is not a controlling
person of or member of a group which controls such persons and (ii) does
not directly or indirectly, own five percent (5%) or more of any class of
securities of such person, or (b) solicit the employment of any person who
is then an employee of the Company (or any other subsidiary).
B. Exception. Employee may be relieved, in whole or in part,
from complying with Section 9(A) or 9(B) or both, (the "Noncompetition
Agreement") by:
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(1) making written application to Employer for an exception to the
Noncompetition Obligation stating clearly Employee's prospective employer,
address, immediate supervisor, duties and position with prospective or
current employer; (2) receiving a written exception from Employer; and
(3) providing Employer, upon its request, with a verification that Employee's
duties and position with Employee's new employer remain as stated in the
written application previously submitted to Employer. Employee's
obligations to provide Employer with such verifications will continue for
all periods of Employee's employment by Employee's employer during the term
of the Noncompetition Obligation. Employer's approval of such request
shall not be unreasonably withheld.
C. Enforceability. In the event a court of competent
jurisdiction determines that the scope of restrictions or time or
geographical limitations imposed are too broad to be capable of
enforcement, the limitations shall be modified, to the least extent
possible, so that the provisions are enforceable.
10. Violation of Other Agreements. Employee represents and warrants
to the Company that he is legally able to enter into this Agreement and
accept employment with the Company and that Employee is not prohibited by
the terms of any agreement, from entering into this Agreement; and the
terms hereof will not and do not violate or contravene the terms of any
agreement to which Employee is or may be a party, or by which Employee may
be bound.
11. Notices. Any and all notices, demands or requests required or
permitted to be given under this Agreement shall be given in writing and
sent by registered or certified U.S. mail, return receipt requested, by
hand or by overnight courier, addressed to the parties hereto at their
addresses set forth above or such other address as they may from time-to-
time designate by written notice, given in accordance with the terms of
this Section, together with copies thereof as follows:
In the case of the Company, with copy to:
XXXX.xxx., Inc.
Xxxxx 000,
0000 Xxxxxx Xxxxxx Xx. XX
Xxxxxxxxxxx, Xxx Xxxxxx 00000
In the case of the Employee, with copy to:
XXXXXXX XXXXXXXX
000 Xxxxxx Xxxxx XX
Xxxxxxxxxxx, Xxx Xxxxxx
Notices given as provided in this Section shall be deemed effective:
(i) on the date hand delivered, (ii) on the first business day following the
sending thereof by overnight courier, or (iii) on the seventh calendar day
(or, if it is not a business day, then the next
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succeeding business day thereafter) after the depositing thereof into the
exclusive custody of the U. S. Postal Service.
12. Waivers. No waiver by any party of any default with respect to
any provision, condition or requirement hereof shall be deemed to be a
waiver of any other provision, condition or requirement hereof; nor shall
any delay or omission of any party to exercise any right hereunder in any
manner impair the exercise of any such right accruing to it thereafter.
13. Preservation of Intent. Should any provision of this Agreement
be determined by a court having jurisdiction to be illegal or in conflict
with any laws of any state or jurisdiction or otherwise unenforceable, the
Company and Employee agree that such provision shall be modified to the
extent legally possible so that the intent of this Agreement may be legally
carried out and the provisions hereof may be enforced to the maximum extent
possible.
14. Indemnification. Subject to the succeeding sentence, the Company
shall indemnify, defend and hold harmless Employee from and against all
losses, claims (whether actual or threatened), damages, liabilities,
judgments, fines, penalties, assessments and costs and expenses incurred
(including, without limitation, reasonable attorneys' fees and
disbursements, including legal fees and disbursements incurred to enforce
this Agreement) arising prior to, on or after the date hereof from the
performance by Employee of his services pursuant to this Agreement or
Employee's prior service to the Company. Notwithstanding the foregoing,
Employee shall not be entitled to indemnification pursuant to this Section
14 if a Court of competent jurisdiction or an administrative body or agency
determines that, in connection with any matter giving rise to
indemnification, Employee acted in bad faith or dishonestly, or committed
an act for illegal personal gain, or committed an act of wanton or willful
misconduct or gross negligence or that Employee acted in a manner beyond
the authorized scope of his duties to be performed pursuant to this
Agreement. The foregoing indemnification shall be in addition to, and not
in lieu of, the terms and provisions of any indemnification agreement
heretofore entered into by and between the Company and Employee.
15. Dispute Resolution.
A. Generally. Subject to the provisions in Section 16(B) and
(C), the purpose and intent of the parties is to resolve their disputes
expeditiously, and in a financially-reasonable manner; and further that the
parties will meet personally, and directly and in good faith to discuss how
to proceed with dispute resolution and with that purpose and intent in
mind. Any dispute between the parties to this Agreement or any other
controversy or claim arising out of or relating to this Agreement or the
breach thereof shall be submitted to and resolved by binding arbitration in
Albuquerque, New Mexico. Such arbitration shall be conducted upon the
request of any party, before a single arbitrator, selected by the parties
or, failing agreement on a choice of an arbitrator within thirty (30) days
of service of written demand for arbitration, by an arbitrator designated
pursuant to the Uniform Arbitration Act, NMSA 44-7-1 et set. (1978). Once
the
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arbitrator is selected, but as a condition precedent to proceeding with
arbitration, the parties shall engage on a good-faith best efforts basis
(i) in direct face-to-face negotiations; and failing resolution by
negotiation, then (ii) mediation and, failing mediation then,
(iii) arbitration. Such arbitration shall be in accordance with the laws of
the State of New Mexico and pursuant to the Uniform Arbitration Act, and
subject to the Federal Rules of Civil Procedure as the arbitrator may
determine. The arbitration shall be conducted within sixty (60) days of
the selection of the arbitrator and the arbitrator shall render his or her
decision within twenty (20) days after conclusion of the arbitration. The
prevailing party in the arbitration shall be entitled as a part of the
arbitration award to the costs and expenses (including reasonable attorney
fees) of investigating, preparing and pursuing or defending the arbitration
claim as such costs and expenses are awarded by the arbitrator. The duty
to pursue the foregoing dispute resolution provisions, shall survive the
termination or cancellation of this Agreement. Arbitration pursuant to the
foregoing shall be specifically enforceable under prevailing arbitration
laws of the State of New Mexico. The decision of the arbitrator shall be
final and binding upon the parties and enforceable in a court of competent
jurisdiction.
B. Injunctive Relief. Notwithstanding the foregoing, the
parties recognize that if there is a breach of either Section 7 or 9
hereof, that the general dispute resolution provisions of this Section
16(A) may not be sufficient and that extent of the damages to the Company
or an Affiliate thereof, would be impossible to ascertain and that there is
and will be available to the Company no adequate remedy at law in the event
of such a breach. Consequently, Employee agrees that in the event of a
breach by Employee of Section 7, 9 or both of them, in addition to any
other relief to which the Company may be entitled, the Company shall be
entitled to enforce any or all of the Employee's defaulted obligations
hereunder, by injunctive or other equitable relief ordered by any court of
competent jurisdiction.
C. ERISA Rights. Notwithstanding the foregoing, if the claim
involves a right covered by the Employee Retirement Income Security Act of
1974 ("ERISA") (e.g., severance pay pursuant to Section 6, 8(D) and 8(E)
above) then the rights of the parties shall not be covered by either
Section 16(A) or (B) but rather shall be covered by ERISA and incorporated
herein by reference.
16. Entire Agreement. This Agreement sets forth the entire and only
agreement or understanding between the parties relating to the subject
matter hereof and supersedes and cancels all previous agreements,
negotiations, letters of intent, commitments and representations in respect
thereof between them, and no party shall be bound by any conditions,
definitions, warranties or representations with respect to the subject
matter of this Agreement except as provided in this Agreement.
17. Inurement; Assignment. In the event of a sale of the Company, or
a division, subsidiary or affiliate thereof, whether by way of stock sale,
sale of assets, merger or other business combination, as applicable, the
rights and obligations of the Company under this Agreement shall, with
Employee's prior written consent, inure to the benefit of and shall be
binding upon any successor of the Company or to the
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business of the Company, subject to the provisions hereof. The Company
may, with Employee's written consent, assign this Agreement to any person,
firm or corporation controlling, controlled by, or under common control
with the Company provided that, in the event of any such assignment, the
services to be rendered by the Employee to such assignee shall be of the
same nature and professional status provided for in this Agreement. The
Company's obligations hereunder shall be unaffected by any assignment.
Neither this Agreement nor any rights or obligations of Employee hereunder
shall be transferable or assignable by Employee.
18. Amendment. This Agreement may not be amended in any respect
except by an instrument in writing signed by the parties hereto.
19. Headings. The headings in this Agreement are solely for
convenience of reference and shall be given no effect in the construction
or interpretation of this Agreement.
20. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
when taken together shall constitute one and the same instrument.
21. Governing Law; Consent to Venue and Jurisdiction. This Agreement
shall be governed by, construed and enforced in accordance with the
internal laws of the State of New Mexico, without giving reference to
principles of conflict of laws. In the event of a dispute, each of the
parties hereto irrevocably consents to the exclusive venue and jurisdiction
of the federal and state courts located within the State of New Mexico,
County of Bernalillo.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
/s/ Xxxxxxx Xxxxxxxx
XXXXXXX XXXXXXXX
XXxX.Xxx., INC.
/s/ Xxxx Xxxxxxx
By XXXX XXXXXXX, Representing
the Board of Directors
12
New Mexico Software
[letterhead]
To: The Board of Directors of XXXX.xxx, Inc.
Fr: Xxxx Xxxxxxxx
Su: Compensation
Da: 9/30/03
I hereby forfeit all compensation due me for the year 2003 under the
employment contract dated and signed on August 29, 2003 except for $20,000.
If you have questions about this, please contact me.
Cordially,
/s/ Xxxxxxx Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
Chairman & CEO
