M&A West, Inc.
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this "Agreement") is made between
M&A West, Inc., a Colorado corporation ("the Company"), and Xxxxxxx X. Xxxxxx
("Xxxxxx"). Unless otherwise indicated, all references to Sections are to
Sections in this Agreement. This Agreement is effective as of the "Effective
Date" set forth in Section 12 below.
W I T N E S S E T H:
WHEREAS, the Company desires to obtain the services of Xxxxxx, and
Xxxxxx desires to be employed by the Company upon the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises, the agreements herein
contained and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto agree as of the date hereof as follows:
1. Employment. The Company hereby agrees to employ Xxxxxx, and Xxxxxx
hereby agrees to serve the Company, as its Chief Executive Officer
("Employment").
2. Scope of Employment.
(a) During the Employment, Xxxxxx will serve as Chief Executive
Officer and, subject to his election in accordance with the Company's
by-laws and with applicable law, as a member of the Board.
(b) Section 2(a) shall not be construed as preventing Xxxxxx from
(i) serving on corporate, civic or charitable boards or committees, or
(ii) making investments in other businesses or enterprises.
3. Compensation and Benefits During Employment. During the Employment,
the Company shall provide compensation to Xxxxxx as follows.
(a) The Company shall pay Xxxxxx $7,500 per month in equal
semi-monthly installments, less withholding required by law or agreed
to by Xxxxxx.
(b) The Company shall pay Xxxxxx $1,500 per month for rent of the
office and the equipment (including computers and phone lines) located
at 0000 Xxxxxxxx, Xxxxxxx, Xxxxx 00000.
(c) The Company will reimburse Xxxxxx for reasonable business
expenses incurred by Xxxxxx in connection with the Employment in
accordance with the Company's then-current policies and IRS
guidelines.
(d) Xxxxxx will be entitled to participate in any incentive
program or bonus program of the Company which may be implemented in
the future.
(e) The Company shall reimburse Xxxxxx and Xxxxxx'x wife for
major medical coverage throughout the term of this Agreement.
(f) The Company shall place $10,000 in an escrow account with
Vanderkam & Xxxxxxx for the sole purpose of indemnifying Xxxxxx
against any action arising from his involvement with the Company.
These funds may be removed upon written consent of Xxxxxx, or after
Xxxxxx no longer serves as the Company's chief executive officer.
(g) Xxxxxx'x wife occasionally serves as his assistant. When
Xxxxxx travels with his wife on Company business, all expenses
incurred by Xxxxxx and his wife shall be reimbursed to Xxxxxx.
Any act, or failure to act, based upon authority given
pursuant to a resolution duly adopted by the Board or based
upon the advice of counsel for the Company shall be
conclusively presumed to be done, or omitted to be done, by
Xxxxxx in good faith and in the best interests of the Company
and thus shall not be deemed grounds for termination for
Cause.
4. Confidential Information.
(a) Xxxxxx acknowledges that the law provides the Company with
protection for its trade secrets and confidential information. Xxxxxx
will not disclose, directly or indirectly, any of the Company's
confidential business information or confidential technical
information to anyone without authorization from the Company's
management. Xxxxxx will not use any of the Company's confidential
business information or confidential technical information in any way,
either during or after the Employment with the Company, except as
required in the course of the Employment.
(b) Xxxxxx will strictly adhere to any obligations that may be
owed to former employers insofar as Xxxxxx'x use or disclosure of
their confidential information is concerned.
(c) Information will not be deemed part of the confidential
information restricted by this Section 4 if Xxxxxx can show that: (i)
the information was in Xxxxxx'x possession or within Xxxxxx'x
knowledge before the Company disclosed it to Xxxxxx; or (ii) the
information was or became generally known to those who could take
economic advantage of it; or (iii) Xxxxxx obtained the information
from a party having the right to disclose it to Xxxxxx without
violation of any obligation to the Company, or (iv) Xxxxxx is required
to disclose the information pursuant to legal process (e.g., a
subpoena), provided that Xxxxxx notifies the Company immediately upon
receiving or becoming aware of the legal process in question. No
combination of information will be deemed to be within any of the four
exceptions in the previous sentence, however, whether or not the
component parts of the combination are within one or more exceptions,
unless the combination itself and its economic value and principles of
operation are themselves within such an exception.
(d) All originals and all copies of any drawings, blueprints,
manuals, reports, computer programs or data, notebooks, notes,
photographs, and all other recorded, written, or printed matter
relating to research, manufacturing operations, or business of the
Company made or received by Xxxxxx during the Employment are the
property of the Company. Upon
termination of the Employment, whether or not for Cause, Xxxxxx will immediately
deliver to the Company all property of the Company which may still be in
Xxxxxx'x possession. Xxxxxx will not remove or assist in removing such property
from the Company's premises under any circumstances, either during the
Employment or after termination thereof, except as authorized by the Company
management.
5. Legal Fees and Expenses. In the event of a lawsuit, arbitration, or
other dispute-resolution proceeding between the Company and Xxxxxx arising out
of or relating to this Agreement, the prevailing party, in the proceeding as a
whole and/or in any interim or ancillary proceedings (e.g., opposed motions,
including without limitation motions for preliminary or temporary injunctive
relief) will be entitled to recover its reasonable attorneys' fees and expenses
unless the court or other forum determines that such a recovery would not serve
the interests of justice.
6. Successors.
(a) This Agreement shall inure to the benefit of and be binding
upon (i) the Company and its successors and assigns and (ii) Xxxxxx
and Xxxxxx'x heirs and legal representatives, except that Xxxxxx'x
duties and responsibilities under this Agreement are of a personal
nature and will not be assignable or delegable in whole or in part.
(b) the Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to
assume expressly and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to
perform it if no such succession had taken place. As used in this
Agreement, "the Company" shall mean the Company as hereinbefore
defined and any successor to its business and/or assets as aforesaid
which assumes and agrees to perform this Agreement by operation of
law, or otherwise.
7. Arbitration.
(a) Except as set forth in paragraph (b) of this Section 7 or to
the extent prohibited by applicable law, any dispute, controversy or
claim arising out of or relating to this Agreement will be submitted
to binding arbitration before a single arbitrator in accordance with
the National Rules for the Resolution of Employment Disputes of the
American Arbitration Association in effect on the date of the demand
for arbitration. The arbitration shall take place before a single
arbitrator, who will preferably but not necessarily be a lawyer but
who shall have at least five years' experience in working in or with
computer software companies. Unless otherwise agreed by the parties,
the arbitration shall take place in the city in which Xxxxxx'x
principal office space is located at the time of the dispute or was
located at the time of termination of the Employment (if applicable).
The arbitrator is hereby directed to take all reasonable measures not
inconsistent with the interests of justice to expedite, and minimize
the cost of, the arbitration proceedings.
(b) At the request of either party, the arbitrator may take any
interim measures s/he deems necessary with respect to the subject
matter of the dispute, including measures for the preservation of
confidentiality set forth in this Agreement.
(c) Judgment upon the award rendered by the arbitrator may be
entered in any court having jurisdiction.
8. Other Provisions.
(a) All notices and statements with respect to this Agreement
must be in writing. Notices to the Company shall be delivered to the
Chairman of the Board or any vice president of the Company. Notices to
Xxxxxx may be delivered to Xxxxxx in person or sent to Xxxxxx'x
then-current home address as indicated in the Company's records.
(b) This Agreement sets forth the entire agreement of the parties
concerning the subjects covered herein; there are no promises,
understandings, representations, or warranties of any kind concerning
those subjects except as expressly set forth in this Agreement.
(c) Any modification of this Agreement must be in writing and
signed by all parties; any attempt to modify this Agreement, orally or
in writing, not executed by all parties will be void.
(d) If any provision of this Agreement, or its application to
anyone or under any circumstances, is adjudicated to be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability
will not affect any other provision or application of this Agreement
which can be given effect without the invalid or unenforceable
provision or application and will not invalidate or render
unenforceable such provision or application in any other jurisdiction.
(e) This Agreement will be governed and interpreted under the
laws of the United States of America and of the State of Texas law as
applied to contracts made and carried out in Texas by residents of
Texas.
(f) No failure on the part of any party to enforce any provisions
of this Agreement will act as a waiver of the right to enforce that
provision.
(g) Termination of the Employment, with or without cause, will
not affect the continued enforceability of this Agreement.
(h) Section headings are for convenience only and shall not
define or limit the provisions of this Agreement.
(i) This Agreement may be executed in several counterparts, each
of which is an original. It shall not be necessary in making proof of
this Agreement or any counterpart hereof to produce or account for any
of the other counterparts. A copy of this Agreement signed by one
party and Faxed to another party shall be deemed to have been executed
and delivered by the signing party as though an original. A photocopy
of this Agreement shall be effective as an original for all purposes.
Effective Date February 1, 2001
Term Three Years
Office / Position Chief Executive Officer
Initial Salary $7,500 per month
This Agreement contains provisions requiring binding arbitration of
disputes. By signing this Agreement, Xxxxxx acknowledges that he or she (i) has
read and understood the entire Agreement; (ii) has received a copy of it (iii)
has had the opportunity to ask questions and consult counsel or other advisors
about its terms; and (iv) agrees to be bound by it.
Executed to be effective as of the Effective Date.
M&A West, Inc., by: Employee:
/s/ Xxxxxxx Xxxxxx /s/ Xxxxxxx Xxxxxx
----------------------------- -------------------------------
Signature Signature
Xxxxxxx Xxxxxx
-----------------------------
Printed name
Chief Executive Officer
-----------------------------
Title
