EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement"), made and entered into this 7th day
of September of 2000 effective January 1, 2000 (the "Effective Date"), by and
between Prime Companies, Inc., a Delaware corporation (the "Company"), and
Xxxxxxx X. Xxxx, a resident of California ("Executive").
WITNESSETH:
WHEREAS, the Company is a corporation engaged in business in the State of
Delaware and throughout the United States; and
WHEREAS, the Company desires to employ Executive in the capacity of Chief
Executive Officer upon the terms and conditions hereinafter set forth; and
WHEREAS, Executive is willing to enter into this Agreement with respect to
his employment and services upon the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and obligations
contained herein, Company hereby employs Executive and Executive hereby accepts
such employment upon the terms and conditions set forth below.
1. Term of Employment. The term of employment under this Agreement shall be for
a period of three (3) years, commencing on the Effective Date and terminating on
December 31, 2002, unless such employment is terminated or extended prior to the
expiration of said period as hereinafter provided. Effective as of the
expiration of such initial three-year term and as of each anniversary date
thereof, the term of this Agreement shall be extended for an additional one-year
period unless, not later than six (6) months prior to each such respective date,
either party hereto shall have given notice to the other that the term shall not
be so extended. In the event of non-renewal, and the terminating party shall
give notice of this decision not later than five and a half months before the
anniversary date. Notwithstanding the foregoing, Executive's employment
hereunder may be earlier terminated as provided in ss.8 hereof.
2. Duties of Executive.
(a) Positions and Reporting. The Company hereby employs the Executive for
the Employment Period as its President and Chief Operating Officer on the terms
and conditions set forth in this Agreement. During the Employment Period,
Executive shall report directly to the Chairman on an ongoing basis and directly
to the Board of Directors of the Company (the "Board") with full access to the
Board except during executive sessions.
(b) Complete Commitment. Executive agrees that during the term of this
Agreement, he will devote his professional and business-related time, skills,
and best efforts to the businesses of the Company in the capacity of Chief
Executive Officer or in such other capacities as the Company may request of
Executive hereafter in writing.
(c) Authority and Duties. Executive shall exercise such authority, perform
such executive duties and functions, and discharge such responsibilities as are
reasonably associated with the Executive's positions, commensurate with the
authority vested in the Executive pursuant to this Agreement, and consistent
with the By-Laws of the Company as may be modified from time to time by the
Board. The Executive shall attend all Board meetings, and the Executive agrees
to serve as a director if invited by the Board. During the Employment Period,
the Executive shall devote full business time, skill, and efforts to the
business of the Company. Notwithstanding the foregoing, the Executive may make
and manage personal business investments of his choice and, after first seeking
and obtaining Board approval, have a second job or serve in any capacity with
any civic, educational, or charitable organization, or any trade association.
If there are major changes in the duties or responsibilities of Executive
from those listed above that are not mutually agreed upon, Executive may give
notice of non-acceptance specifying the details of his counter-proposal and
request to negotiate a mutually acceptable compromise. If the Parties are unable
within thirty (30) days of the date of Executive's notice of non-acceptance,
Executive may give notice of his intention to terminate his employment which
shall become effective sixty (60) days thereafter absent a mutual agreement
otherwise and absent the Company's withdrawal of the request for changed duties,
thereby re-establishing the status quo ante. Executive agrees to continue to
fulfill his employment obligations throughout the entire period of employment
and to train conscientiously a replacement if so requested, notwithstanding any
pending notice of termination.
(d) Other Positions. The Company acknowledges and agrees that, during the
term of this Agreement, Executive will devote some of his professional and
business-related time, skills, and best efforts to Prime Companies, Inc. and
subsidiaries of Employer including Mid-Cal Express, Inc. and Mid-Cal Logistics,
Inc., and that Employee will not receive compensation from such subsidiaries for
his services.
3. Compensation. The Company shall pay Executive an annual base salary of One
Hundred Thousand ($100,000.00) per annum (or fraction for portions of a year) to
be paid semi-monthly on or about the first and 15th of each month. Such base
salary will be adjusted from time to time in accordance with then current
standard salary administration guidelines of the Company. Executive's salary
shall be subject to all appropriate federal and state withholding taxes and
shall be payable in accordance with the normal payroll procedures of the
Company.
4. Fringe Benefits. The terms of this Agreement shall not foreclose Executive
from participating with other employees of the Company in such fringe benefit or
incentive compensation plans as may be authorized and adopted from time to time
by the Company; provided, however, that Executive must meet any and all
eligibility provisions required under said fringe benefit or incentive
compensation plans. Executive may be granted such other fringe benefits or
perquisites as Executive and the Company may from time to time agree upon. In
addition, Human Resources may devise a job specific incentive plan and present
it to Board and, if approved, to Executive.
5. Vacations. Executive shall be entitled to the number of paid vacation days in
each calendar year as shall be determined by the Board from time to time. In no
event, however, shall Executive be entitled to less than two weeks paid vacation
during each calendar year.
6. Reimbursement of Expenses. The Company recognizes that Executive will incur
legitimate business expenses in the course of rendering services to the Company
hereunder. Accordingly, the Company shall reimburse Executive, upon presentation
of receipts or other adequate documentation, for all necessary and reasonable
business expenses incurred by Executive in the course of rendering services to
the Company under this Agreement.
7. Working Facilities. Executive shall be furnished an office, and such other
facilities and services suitable to his position and adequate for the
performance of his duties, which shall be consistent with the policies of the
Company.
8. Termination. The employment relationship between Executive and the Company
created hereunder shall terminate before the expiration of the stated term of
this Agreement upon the occurrence of any one of the following events:
(a) Executive's Death or Permanent Disability. For the purpose of this
Agreement, the "permanent disability" of Executive shall mean Executive's
inability, because of his injury, illness, or other incapacity (physical or
mental), to perform the essential functions of the position contemplated herein,
with or without reasonable accommodation to Executive with respect to such
injury, illness, or other incapacity, for a continuous period of sixty (60) days
or for ninety (90) days out of a continuous period of 360 days. Such permanent
disability shall be deemed to have occurred on the sixtieth (60th) consecutive
day or on the ninetieth (90th) day within the specified period, whichever is
applicable.
(b) Termination for Cause. The following events, which for purposes of this
Agreement shall constitute "cause" for termination with the majority vote of the
Board:
(1) The willful breach by Executive of any provision of Sections 11, 12,
or 13 hereof or any act of fraud, misappropriation, or embezzlement by
Executive with respect to any aspect of the Company's business or
under circumstances that reflect adversely on the Company in the
public eye, in each case in the Board's sole and exclusive
determination, shall be cause for immediate termination with immediate
curtailment of all compensation, benefits within statutory
limitations, and stock option rights.
(2) The willful breach by Executive of Section 2 hereof (including but not
limited to a refusal to follow lawful directives of the Board) after
notice to Executive of the details thereof and a period of 10 days
thereafter within which to cure such breach and the failure of
Executive to cure such breach to the Board's satisfaction within such
10 day period;
(3) The use of illegal drugs by Executive during the term of this
Agreement that, in the sole and exclusive determination of Board,
interferes with Executive's performance of his duties hereunder or
under circumstances that reflect adversely on the Company in the
public eye;
(4) The filing of a petition in bankruptcy court for bankruptcy,
reorganization, or rearrangement or an adjudication that Executive is
bankrupt;
(5) The commencement of involuntary proceedings against Executive for
bankruptcy or appointment of a receiver because of insolvency;
(6) If the Company determines that employee has engaged in any dishonest
conduct in the course of his management duties including by way of
example and not by limitation the knowing receipt of kickbacks from
suppliers, misappropriation of corporate assets or opportunities, etc.
(7) If the circumstances of Employee's personal life, whether or not in
the course of management duties, reflects adversely on the Company
such that it would be in the Company's best interests, in its sole
discretion, to terminate its business relations with Employee.
(8) The dissolution of the Company's corporate status;
(9) Executive is convicted of or pleads guilty or nolo contendere to a
felony or misdemeanor involving financial misconduct, moral turpitude,
controlled substances, or personal injuries caused by driving under
the influence;
(10) Failure of performance by Executive that is repeated or continued
after 30 day written notice to Executive of such failure and that is
determined by the Board to be injurious to the business or interests
of the Company and which failure is not cured by Executive within such
30 day period in the Board's sole determination.
Any notice of discharge shall describe with reasonable specificity the
cause or causes for the termination of Executive's employment, as well as the
effective date of the termination (which effective date may be the date of such
notice). If the Company terminates Executive's employment for any of the reasons
set forth above, the Company shall have no further obligations hereunder from
and after the effective date of termination (other than as set forth below).
(c) Termination by Executive with Notice. Executive may terminate this
Agreement without liability to the Company arising from the resignation of
Executive upon a three (3) month written notice to the Company. the Company
retains the right after proper notice of Executive's voluntary termination to
require Executive to cease employment immediately. During such notice period,
Executive shall provide such consulting services to the Company as the Company
may reasonably request and shall assist the Company in training his successor
and generally managing an orderly transition.
(d) Termination by the Company with Notice. The Company may terminate
this Agreement at any time, with or without cause, upon three (3) month written
notice to Executive; provided, however, upon such notice Executive shall not be
required to perform any services for the Company other than during the period of
one (1) month immediately following the receipt of such notice of termination in
which Executive shall assist the Company in training his successor and generally
preparing for an orderly transition.
9. Compensation Upon Termination.
(a) General. Upon the termination of Executive's employment under this
Agreement before the expiration of the stated term hereof for any reason,
Executive shall be entitled to (i) the salary earned by him before the effective
date of termination, as provided in Section 3(a) hereof, prorated on the basis
of the number of full days of service rendered by Executive during the year to
the effective date of termination, (ii) any accrued, but unpaid, vacation
benefits, and (iii) any authorized but unreimbursed business expenses. However
on termination, Executive automatically forfeits any unvested fringe benefits,
dividends, bonuses, and stock options, and any vesting schedule shall be
adjusted on a pro rata basis parallel to ss.9(a)(i) above.
(b) Death or Disability. In the event of termination of employment
hereunder on account of Executive's death or disability, Executive, Executive's
heirs, estate, or personal representatives under law, as applicable, shall be
entitled to the payment of Executive's Base Salary as in effect immediately
prior to death or disability for a period of not less than two calendar months
and not more than the earlier of six calendar months or the payment of benefits
pursuant to a life or disability insurance policy, if any, purchased by the
Company for Executive. Executive, beneficiary, or estate shall not be required
to remit to the Company any payments received pursuant to any such insurance
policy purchased by the Company. Executive is encouraged to purchase life and/or
disability insurance to cover financial needs resulting from death or
disability.
(c) Termination For Cause. If the employment relationship hereunder is
terminated by the Company for cause (as defined in Section 8(b) hereof),
Executive shall not be entitled to any severance compensation, except as
provided in Section 9(a) above, subject to offset and deductions for reasonably
demonstrable damages.
(d) Termination by Executive with Notice. If the employment
relationship is terminated by Executive pursuant to ss.8(c) above, the Company
shall remain obligated to pay Executive his salary during the three (3) month
notice period or the remaining term of this Agreement, whichever is less.
(e) Termination by the Company with Notice. If the employment
relationship is terminated by the Company pursuant to the provisions of ss.8(d)
hereof, the Company shall remain obligated to pay Executive his salary during a
nine (9) month severance period, again subject to offset and deductions for
reasonably demonstrable damages.
(f) Survival. The provisions of Sections 9, 11, 12, 13, 14, and 20 hereof
shall survive the termination of the employment relationship, irrespective of
the manner of termination absent a specific writing providing otherwise which is
signed by Executive and Board. The Parties agree that Executive's breach,
violation, or threat of breach or violation of such sections will result in
immediate and irreparable injury and harm to the Company, and that the Company
shall have, in addition to any and all remedies of law and other consequences
under this Agreement, the right to an injunction, specific performance, or other
equitable relief to prevent the breach or violation of the obligations
hereunder.
(g) Excise Tax Limit. Notwithstanding anything in this Agreement to the
contrary, in the event it shall be determined that any payment or distribution
by the Company or any other person or entity to or for the benefit of Executive
is a "parachute payment" (within the meaning of ss.280G of the Internal Revenue
Code, whether paid or payable or distributed or distributable pursuant to the
terms of this Agreement or otherwise (a "Payment") in connection with, or
arising out of, his employment with the Company or a change in ownership or
effective control of the Company (within the meaning of ss.280G of the Code, and
would be subject to the excise tax imposed by ss.4999 of the Code) (the "Excise
Tax"), the Payments shall be reduced to the extent necessary so that such
remaining Payment would not be subject to the excise tax imposed by ss.4999 of
the Code.
10. Other Agreements. This Agreement shall be primary with regard to other
agreements between the Parties which are inconsistent in any way and shall be
deemed to alter the terms of any executive compensation agreements, deferred
compensation agreements, bonus agreements, general employment benefits plans,
stock option plans, and any other plans or agreements entered into between
Executive and the Company pursuant to which Executive has been granted specific
rights, benefits, or options.
11. Non-competition. Executive agrees that, during his employment with the
Company and for a period of two (2) years from the date of termination of his
employment with the Company, he will not, without the approval of the Board,
directly or indirectly, alone or as partner, joint venturer, officer, director,
Executive, consultant, agent, independent contractor, or stockholder (other than
as provided below) of any company or business, engage in any "Competitive
Business" within any State of the United States or Province of Canada where the
Company has staff, equipment, or facilities. For purposes of the foregoing, the
term "Competitive Business" shall mean any business directly involved in those
business activities performed by the Company during Executive's employment
period. Notwithstanding the foregoing, Executive shall not be prohibited during
the non-competition period applicable above from acting as a passive investor
where he owns not more than five percent (5%) of the issued and outstanding
capital stock of any publicly-held company.
12. Confidential Data. Executive agrees that he will not at any time during the
Employment Period or at any time thereafter for any reason, in any fashion,
form, or manner, either directly or indirectly, divulge, disclose, or
communicate to any person, firm, corporation, or other business entity, in any
manner whatsoever, any confidential information or trade secrets concerning the
business of the Company including, without limiting the generality of the
foregoing, the techniques, methods, or systems of its operation or management,
any information regarding its financial matters, or any other material
information concerning the Company's business, its manner of operation, its
plans or other material data including without limitation the confidential
information listed in Exhibit A. The provisions of this Section shall not apply
to (i) information disclosed in the performance of Executive's duties to the
Company based on his good faith belief that such a disclosure is in the best
interests of Company; (ii) information that is, at the time of the disclosure,
public knowledge; (iii) information disseminated by the Company to third parties
in the ordinary course of business; (iv) information lawfully received by
Executive from a third party who, based upon inquiry by Executive, is not bound
by a confidential relationship to the Company; or (v) information disclosed
under a requirement of law or as directed by applicable legal authority having
jurisdiction over the Executive.
13. Non-solicitation of Customers/Employees. Executive covenants that, during
his employment with the Company and for a period of two (2) years from the date
of termination of his employment with the Company, he will not (i) directly or
indirectly induce or attempt to induce any customer or Executive of the Company
to terminate his or her business relations with the Company or (ii) without
prior written consent of the Company, offer business relations either on behalf
of himself or on behalf of any other individual or entity to any customer or
employee of the Company or to any former customer or employee of the Company.
14. Property of The Company. Executive acknowledges that from time to time in
the course of providing services pursuant to this Agreement, he shall have the
opportunity to inspect, create, or use certain property, both tangible and
intangible, of the Company and Executive hereby agrees that such property shall
remain the exclusive property of the Company, and Executive shall have no right
or proprietary interest in such property, whether tangible or intangible,
including, without limitation, Executive's confidential information listed on
Exhibit A. In addition, Executive is retained in a capacity such that his
responsibilities may include the making of technical and managerial
contributions of value to the Company. Executive hereby assigns to the Company
all rights, title, and interest in such contributions and inventions made or
conceived by Executive alone or jointly with others during the Employment Period
which relate to the Business. This assignment shall include (a) the right to
file and prosecute patent applications on such inventions in any and all
countries, (b) the patent applications filed and patents issuing thereon, and
(c) the right to obtain copyright, trademark, or trade name protection for any
such work product. Executive shall promptly and fully disclose all such
contributions and inventions to the Company and assist the Company in obtaining
and protecting the rights therein (including patents thereon), in any and all
countries; provided, however, that said contributions and inventions will be the
property of Company, whether or not patented or registered for copyright,
trademark, or trade name protection, as the case may be. Inventions conceived by
the Executive which are not related to the Company's business or business
activities, shall remain the property of the Executive. Executive agrees to
return to the Company all Company property, confidential/proprietary
information, and all copies of the same within five (5) days of employment
termination.
15. Equitable Relief. Executive acknowledges that the services to be rendered by
him are of a special, unique, unusual, extraordinary, and intellectual
character, which gives them a peculiar value, and the loss of which cannot
reasonably or adequately be compensated in damages in an action at law, and that
a breach by him of any of the provisions contained in this Agreement will cause
the Company irreparable injury and damage. By reason thereof, Executive agrees
that the Company shall be entitled, in addition to any other remedies it may
have under this Agreement or otherwise, to injunctive and other equitable relief
to prevent or curtail any breach of this Agreement by him. Executive hereby
acknowledges and agrees that prohibitions set forth in ss.ss.11, 12, 13, and 14
are in addition to, and not in lieu of, any rights or remedies that the Company
may have available pursuant to the laws of any jurisdiction or at common law to
prevent such violations, and the enforcement by the Company of its rights and
remedies pursuant to this Agreement shall not be construed as a waiver of any
other rights or available remedies that it may possess in law or equity absent
this Agreement.
16. "Change of Control." The terms of this Agreement shall remain in effect in
the event that (i) the Company becomes a subsidiary of another corporation or
entity or is merged or consolidated into another corporation or entity or
substantially all of the assets of the Company are sold to another corporation
or entity; or (ii) any person, corporation, partnership, or other entity, either
alone or in conjunction with its "affiliates," as that term is defined in Rule
405 of the General Rules and Regulations under the Securities Act of 1933, as
amended, or other group of persons, corporations, partnerships, or other
entities who are not "affiliates" but who are acting in concert, becomes the
owner of record or beneficially of securities of the Company that represent
thirty-three and one-third percent (33 1/3%) or more of the combined voting
power of the Company's then outstanding securities entitled to elect Directors.
MISCELLANEOUS PROVISIONS
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17. Non-Assignment; Successors. Neither party hereto may assign his or its
rights or delegate his or its duties under this Agreement without the prior
written consent of the other party; provided, however, that: (iii) this
Agreement shall inure to the benefit of and be binding upon the successors and
assigns of the Company upon any sale of all or substantially all of the
Company's assets, or upon any merger, consolidation, or reorganization of the
Company with or into any other corporation, all as though such successors and
assigns of the Company and their respective successors and assigns were the
Company; and (iv) this Agreement shall inure to the benefit of and be binding
upon the heirs, assigns, or designees of Executive to the extent of any payments
due to them hereunder. As used in this Agreement, the term "Company" shall be
deemed to refer to any such successor or assign of the Company referred to in
the preceding sentence.
18. Severability and Reformation. The parties hereto intend all provisions of
this Agreement to be enforced to the fullest extent permitted by law. If,
however, any provision of this Agreement is held to be illegal, invalid, or
unenforceable under present or future law, such provision shall be reformed to
effect the fullest possible extent of the provision that is legal, valid, and
enforceable. In the event that even this is not possible, such provision shall
be fully severable, and this Agreement shall be construed and enforced as if
such illegal, invalid, or unenforceable provision were never a part hereof, and
the remaining provisions shall remain in full force and effect and shall not be
affected by the illegal, invalid, or unenforceable provision or by its
severance.
19. Construction with Articles and Bylaws. Except as explicitly modified by this
Agreement, the provisions of the Articles and Bylaws shall remain in full force
and effect. Notwithstanding the foregoing, the provisions of this Agreement
shall be subject to the provisions of the Articles and shall supersede the
Bylaws only to the extent inconsistent herewith, and the Articles and Bylaws
shall be construed in a manner that gives effect to the purposes of this
Agreement and the intent of the parties hereto.
20. Mandatory Mediation/Arbitration. Given the economies of time and money as
well as enhanced prospects of swiftly restoring amicable business relations, in
the event of a breach, default, and/or dispute between the Parties in connection
with, arising out of, or related to this Agreement and any aspect of relations
between the Parties including without limitation whether an issue is arbitrable,
each Party agrees exclusively to the following terms and conditions for dispute
resolution and claims for relief including injunctive or other equitable relief.
The Parties agree to take the following actions in the following order:
(a) Mediation. The Parties shall agree upon a neutral mediator who is
mutually acceptable and may be selected from those mediators offered by the
Judicial Arbitration Mediation Services-Endispute ("JAMS") in Sacramento or San
Francisco, but there are advantages to finding a conveniently available mediator
close at hand who can readily address and help resolve problematic matters at
the earliest possible stages. If a mediator is not appointed and approved ten
(10) days after the date on which one or the other Party first seeks to retain a
mediator, the mediator shall be appointed by JAMS. The mediator shall have ten
(10) business days to resolve the matter; and
(b) Arbitration. If mediation proves unsuccessful and the matter has not
been resolved after ten (10) business days, any Party (the "Complaining Party")
may seek arbitration, to which each Party hereby agrees to submit to personal
jurisdiction, as follows:
(1) Notice of Request. The Complaining Party shall notify in writing each
party involved in the matter that it is seeking arbitration in
accordance with this Section. There shall be a period of thirty (30)
days after the date of such notice during which the Parties involved
in the matter shall hold with the mediator at least (2) mediation
meetings. If, after such thirty (30) day period as expired, such two
(2) additional mediation meetings have taken place and the matter is
not resolved, the Complaining Party may proceed with a formal
arbitration.
(2) Mutual Designation of the Arbitrator. The Complaining Party shall
notify the other Party that it elects to have the dispute heard and
determined by a former judge of the California Superior or Appellate
Courts retained by JAMS under JAMS rules and procedures, and request
that a hearing be held to resolve the controversy within thirty (30)
days after the filing of the application or as soon thereafter as
possible. The arbitration hearing shall be held in a place agreed upon
between the Parties and if no such agreement is possible within ten
(10) days of discussion, the JAMS arbitrator shall designate the
arbitration site. The arbitrator shall be required to grant a remedy
specifically requested by a party to the arbitration, and he/she shall
have no authority to fashion a remedy that has not been so
specifically requested.
(3) Expediting Resolution. Each Party agrees actively to expedite the
resolution of the dispute with all reasonable efforts to secure a
hearing within thirty (30) days after the filing of the Arbitration
Petition, or as soon thereafter as possible. In more complicated cases
upon the Arbitrator's consent, each Party may serve a single request
for admissions, interrogatories, and request for production of
documents in compliance with the California Rules of Civil Procedure,
and the arbitrator shall have sole and complete discretion to
determine any discovery disputes.
(4) Equitable Relief. In the event of an application for a temporary
restraining order or other equitable relief, each party agrees to any
and all measures necessary to secure a hearing within ten (10)
business days of the Notice which may proceed even without the
responding Party's presence, subject to proof satisfactory to the JAMS
arbitrator that notice was effected.
(5) Arbitrator's Decision and Confidentiality. The arbitrator shall
deliver a written opinion setting forth factual findings and the
decision rationale which may be reduced to a judgment and filed in any
court having jurisdiction. At the expense of the moving party, the
arbitrator shall reconsider the decision once upon a written motion
submitted and served within ten (10) business days of the decision.
The Confidentiality provisions of this Agreement shall apply to the
arbitration proceeding, all evidence taken, and the opinion.
(6) The Losing Party. The arbitrator's award or opinion shall identify by
name the party or parties who shall not have prevailed in the
arbitration (the "Losing Party"). In rendering the decision with
respect to any state law claims, the arbitrator shall apply the laws
of the State of California without regard to the application of
principles of conflicts of law. The arbitrator shall assess all
expenses of arbitration and mediation, including but not specifically
limited to all forms of mediator's fees, arbitration fees, costs, and
attorneys' fees in accordance with Paragraph 20(a) of this Agreement.
(7) Attorneys' Fees and Costs. The costs and expenses incurred in
connection with any attempt at mediation described above, including
JAMS' and the mediator fees, shall be shared equally among all the
Parties involved in such mediation, with each party responsible for
its own attorneys' fees, if the mediation successfully resolves the
matter, or if the matter is otherwise resolved without arbitration.
However, if the matter is arbitrated, the Losing Party in the
arbitration shall pay all the mediation costs including but not
specifically limited to the mediator's fees and disbursements and
attorneys' fees of the parties who are not the Losing Party as well as
all costs and expenses of arbitration including but not specifically
limited to JAMS' fees, attorneys' fees of parties who are not the
Losing Party and costs, plus attorneys' fees incurred to enforce any
award or opinion entered in any court having jurisdiction thereof. If
more than one party constitutes the Losing Party, as determined by the
arbitrator, all such parties shall be jointly and severally liable for
all costs and expenses of mediation and/or arbitration.
(8) Full Assessment as Incentive for Resolution by Mediation. For purposes
of this Section, the phrase "costs and expenses" shall include, in
addition to those items enumerated above, discovery costs, air and
ground transportation, lodging, meals, and related items advanced or
incurred by necessary parties to the arbitration and by witnesses,
investigators, accountants, and attorneys participating in the who
reside outside Northern California. For purposes of this Section, the
term "attorney's fees" shall mean the full and actual cost of any
legal services actually performed in connection with the matter for
which such fees are sought, calculated on the basis of the usual fees
charged by the attorneys performing such services, and such fees shall
not be limited to "reasonable attorney's fees" as that term may be
defined by statutory or decisional authority. Judgment on such award
may be entered in any court having jurisdiction over the subject
matter of the controversy and shall thereafter be deemed an
enforceable judgment.
(c) Enforceability. This Agreement will be enforceable, the arbitration
order/award will be final, and judgment thereon may be entered in any court of
competent jurisdiction. Any complaint, adversarial claim, or action related to
this Agreement prosecuted in any jurisdiction or forum other than as provided
herein shall be null and void.
(d) Survivability. This provision shall survive the termination of this
Agreement. This agreement to arbitrate shall be specifically enforceable, each
Party waiving rights to jury trial and appeal in the interests of maximizing
economy, privacy, and swift resolution while minimizing expense, hostilities,
and delay.
21. Notices. All notices and other communications required or permitted to be
given hereunder shall be in writing and shall be deemed to have been duly given
if delivered personally, mailed by certified mail (return receipt requested) or
sent by overnight delivery service, cable, telegram, facsimile transmission or
telex to the parties at the following addresses or at such other addresses as
shall be specified by the parties by like notice:
(a) If to Employer: Prime Companies, Inc.
000 Xxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
(000) 000-0000
Facsimile: (000) 000-0000
e-mail: xxxxxxxx@xxxxxxxxxxxxxx.xxx
(b) If to Executive: Xxxxxxx X. Xxxx
000 Xxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
(000) 000-0000
Facsimile: (000) 000-0000
e-mail: xxxxx@xxxxxxxxxxxxxx.xxx
(c) and in all cases to: Xx. Xxxxxx Xxxxxxx, Esq.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
(000) 000-0000
Facsimile: (000) 000-0000
e-mail: xxxxxxxxxx@xxx.xxx
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or to such other respective addresses as the Parties hereto shall designate to
the other by like notice, provided that notice of a change of address shall be
effective only upon receipt thereof.
Notice so given shall, in the case of notice so given by mail, be
deemed to be given and received on the fourth calendar day after posting, in the
case of notice so given by overnight delivery service, on the date of actual
delivery and, in the case of notice so given by cable, telegram, facsimile
transmission, telex, or personal delivery, on the date of actual transmission
or, as the case may be, personal delivery, in each case followed by posting with
the U. S. Postal Service by certified mail. The Parties further consent and
agree that notice given pursuant to this section shall be effective in securing
personal jurisdiction for dispute resolution with JAMS.
22. Further Actions. Whether or not specifically required under the terms of
this Agreement, each Party hereto shall execute and deliver such documents and
take such further actions as shall be necessary in order for such party to
perform all of his or its obligations specified herein or reasonably implied
from the terms hereof.
23. Waiver of Breach. Any waiver of any breach of this Agreement shall not be
construed to be a continuing waiver or consent to any subsequent breach on the
part either of the Executive or Company.
24. Governing Law. This agreement shall be governed by and construed in
accordance with the internal law, and not the law of conflicts, of the State of
California.
25. Assignment. This Agreement is personal to Executive and may not be assigned
in any way by Executive without the prior written consent of the Company. This
Agreement shall not be assignable or delegable by the Company, other than to an
affiliate of the Company, except if there is a Change of Control as defined in
Section 16, the Company may assign its rights and obligations hereunder to the
person, corporation, partnership or other entity that has gained such control.
26. Interpretation. Neither this Agreement nor any amendment hereto nor any
uncertainty or ambiguity herein shall be construed or resolved against the
Company or Employee, whether under any rule of construction or otherwise. On the
contrary, this Agreement and any amendment has been reviewed by all parties and
shall be construed and interpreted according to the ordinary meaning of the
words used so as to fairly accomplish the purposes and intentions of the parties
hereto. The normal rule of construction to the effect that any ambiguities are
to be resolved against the drafting party shall not be used in the construction
or the interpretation of this Agreement or any amendments hereto.
27. Entire Agreement & Modification: This Agreement merges and supersedes all
prior agreements, negotiations, warranties, and representations by or between
the Parties on the subjects addressed herein, whether oral, written, or both,
and constitutes the entire understanding with respect to this subject matter.
Any inconsistencies or ambiguities shall not be interpreted for or against
either Party. This Agreement may be modified only with a writing signed by both
Parties and approved by the Board, may be signed in counterparts, and may be
deemed an original including signature pages even in facsimile copy. No promise,
warranty, representation, or amendment shall be binding unless in writing and
signed by the Party to be charged.
28. Good Faith. The Parties intend and agree that their respective rights,
duties, powers, liabilities, obligations, and discretionary acts shall be
performed, carried out, discharged, and exercised reasonably in good faith and
in fair dealing with the other Party, shareholders, directors, officers,
employees, customers, and suppliers of the Company.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement.
PRIME COMPANIES, INC.
By: /s/ Xxxxxxx Xxxx By: /s/ Xxxxxxx Xxxxxxx
--------------- -------------------
Name: Xxxxxxx X. Xxxx Name: Xxxxxxx Xxxxxxx
Title: Chief Executive Officer Title: Chief Financial Officer
EXECUTIVE: APPROVED BY THE BOARD:
By:/s/ Xxxxxxx Xxxx By:/s/ Xxxxxxx Xxxxxxx
---------------- -------------------
Xxxxxxx X. Xxxx Name: Xxxxxxx Xxxxxxx, Secretary
EXHIBIT A - CONFIDENTIAL/PROPRIETARY INFORMATION
Generally, the Company's confidential and propriety information
includes all property, tangible and intangible, regardless of how stored in
writing, magnetically encoded, photographic, laser imprinted, or computerized,
etc. Upon termination of employment, Executive shall be entitled only to remove
his personal belongings. More specifically but without limitation,
Confidential/Proprietary Information includes the following:
1. All Company trade secrets and all business plans including strategic
plans, product plans, marketing plans, financial plans, operating
plans, resource plans, all research and development plans including
all records, data, illustrations, computer files, and any other
documentation produced by or related to such efforts;
2. All Company business records including customer, supplier, and
personnel lists and information, all internally prepared documents,
all sales, accounting, and business activity records and files;
3. All documents, software, records, files, internal policies,
procedures, methods, and approaches which have been developed or
adopted by to Prime Companies, Inc. and are not public.
4. Any information relating to the marketing, pricing, contracts,
discounting, employment, job responsibility, performance, salaries,
and personnel compensation of any other employee with the Company.
5. Any information, knowledge, or data that Executive receives in
confidence or acquires from the Company or its staff or customers or
that Executive may develop during the course of his employment and
which relates to or is a trade secret of the company or its customers
as contained in formulas, patterns, toolings, devices, processes,
methods, machines, compositions, discoveries, inventions, designs,
compilations of information, records, specifications,
customer/employee/supplier lists, or otherwise.
