AMERIWEST ENERGY CORP. EMPLOYMENT AGREEMENT
This
Employment Agreement (this "Agreement"), dated as of June 5, 2008 (the
“Effective Date”), by and between Ameriwest
Energy Corp., a Nevada corporation
(the
“Company”)
and
Xxxxxx X. XxXxxxx, an individual with an address at 0000 Xxxxx Xxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxx 00000 (the “Executive”).
WHEREAS,
the Company and Executive desire to provide for the employment of Executive
by
the Company on the terms set forth herein;
NOW,
THEREFORE, in consideration of the mutual covenants herein contained, the
Company and Executive hereby agree as follows:
1. Employment.
1.1 Position. The
Company
hereby
employs
the
Executive
on an
at-will basis,
and
the
Executive
hereby
accepts
employment
on an
at-will basis,
as the
Chief
Financial Officer of
the
Company,
on the
terms and conditions hereinafter
set
forth
1.2 Duties.
The Executive shall serve as the Company’s Chief Financial Officer and shall
perform the customary duties and responsibilities of such positions including,
without limitation, being responsible for the finance and accounting affairs
of
the Company as more fully described on Exhibit A attached hereto. In such
capacities the Executive shall report directly to the Chief
Executive Officer of the Company.
These
positions, duties, and responsibilities can be modified as reasonably
required
to suit the specific requirements and needs of the Company, provided that
the
same
shall be commensurate with the Executive’s experience and expertise and shall
not result in the Executive having duties and responsibilities substantially
less senior and more onerous to the Executive than those set forth on Exhibit
A
attached hereto.
1.3
Time
and Effort. During the Term, the Executive shall, except for vacation periods
as
provided for herein and reasonable periods of illness or disability, devote
all
of the Executive’s working time, attention, abilities, skill, labor and efforts
to the performance of the Executive’s obligations hereunder. The Executive shall
not, during the Term, engage in any other business activity or conduct, whether
or not such business activity or conduct is pursued for gain, profit or other
pecuniary advantage, which activity or conduct adversely affects in any material
respect the Executive’s ability to perform his obligations hereunder.
Notwithstanding the foregoing,
the
parties recognize and agree that Executive may engage in
personal investments and other business, civic or charitable activities that
do
not conflict with the business and affairs of the Company or interfere
in
any
material respect with Executive's performance of his duties hereunder. The
Executive will at all times perform all of the duties and obligations required
of the Executive by the terms of this Agreement in a loyal and conscientious
manner and to the best of the Executive’s ability and experience. Executive
agrees to comply in all material respects with (i) the policies and directives
of the Company, and (ii)
with all
applicable laws and regulations of the states in which the Company and its
affiliates operate,
all as
in effect from time to time.
1.4
Office Location. Executive's services hereunder shall be performed at the
Company’s offices in Casper, Wyoming, except for reasonable travel on behalf of
the Company consistent with the requirements of his duties and positions.
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2. Term.
The
term (the "Term") of this Agreement shall commence on the Effective Date and
may
be terminated by the Executive or the Company at any time for any reason
whatsoever.
3.
Compensation.
3.1
Base
Salary. The Company agrees to pay the Executive, and Executive agrees to accept,
a base salary (the “Base Salary”), in accordance with the Company's normal
payroll procedures applicable to executives, payable at least monthly. The
Base
Salary shall initially be payable at the rate of $7,500 per month. All
compensation payments to be made to the Executive will be subject to required
withholding of federal, state and local income and employment
taxes.
3.2 Compensation
From Other Sources. Any proceeds that Executive receives
by
virtue of qualifying for disability insurance, disability benefits, or health
or
accident insurance shall belong exclusively
to
Executive.
3.3 Equity
Incentive Plan. The Company will develop and obtain Board and shareholder
approval for an equity incentive compensation plan (the "Plan") within ninety
(90) days of the Effective Date. Key elements of the Plan may include: (i)
having the most favorable tax structure as determined by the Company’s Board of
Directors with assistance from the Company's accountants and legal counsel;
and
(ii) capital stock issuable under the Plan shall be restricted and subject
to
vesting in accordance with standard industry practice.
3.4 Option
Grant. Subject to approval by the Board of Directors of the Company and upon
the
effective date of the Plan, the Company will, pursuant to the terms and
conditions under the Plan, grant the Executive an option to purchase 500,000
shares of common stock of the Company subject to a three-year vesting period.
4.
Expenses. The
Company will pay or reimburse Executive for all reasonable out-of-pocket
expenses actually incurred by Executive in the conduct of the business of the
Company upon submission of such itemized vouchers, receipts or other
documentation with respect to any such expenses as shall be reasonably requested
by the Company, and, in any event, in accordance with the guidelines of the
Company, if any, published from time to time.
5.
Benefits. During
the Term, the Company shall provide the Executive and his eligible dependents:
spouse and children under the age of 21, living with the Executive, at the
Company's expense, with all benefits currently in place or to be established
by
the Company. Executive shall be entitled to (i) paid vacation, and (ii) paid
days off for illness, religious observance and personal reasons, all in
accordance with the Company’s policy in effect from time to time.
6. Termination
Payments.
(a) Upon
termination of this Agreement for any reason whatsoever, the Company's
obligations to Executive shall terminate, subject to prompt payment within
thirty (30) days of all monies due hereunder up to the date of termination
including unpaid Base Salary and reimbursement of expenses as well as
continuation of any applicable benefits prescribed under the applicable plans
and payment of the proceeds of any applicable disability or other insurance
policy relating to Executive. In the event this Agreement is terminated for
any
reason other than “Cause,” the Company shall also pay the Executive, within such
thirty (30) day period, a lump sum amount equal to the Executive’s Base Salary
then in effect for a period of two (2) months.
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(b)
In the
event that the payments pursuant to Section 6(a), when considered in conjunction
with any other payments payable hereunder after the termination date
(collectively, “Post-Termination Payments”) constitute “an excess parachute
payment” within the meaning of Section 280G of the Internal Revenue Code of
1986, as amended from time to time (the “Code”), then the Company shall pay to
Executive, in addition to the payments required by this Section 6 above, an
additional amount (the “Additional Amount”) which, after reduction for income
taxes and excise taxes on the Additional Amount, is sufficient to provide for
the payment of any excise tax imposed by Section 4999 of the Code, or applicable
successor thereto (“Section 4999”) that may be due by Executive on the
Post-Termination Payments. With respect to any payment that is made to Executive
under the terms of this Agreement in the year of his termination of employment
and on which an excise tax under Section 4999 will be assessed, the payment
determined under this Subsection shall be made to Executive not later than
thirty (30) days following the termination date. With respect to any payment
made under the terms of this Agreement in any other year and on which an excise
tax under Section 4999 will be assessed, the payment under this Subsection
shall
be made to Executive not later than December 31st of the year in which the
payment on which such excise tax will be assessed is made to Executive or,
if
earlier, the date on which such tax is required to be remitted to the Internal
Revenue Service.
(c)
Notwithstanding anything contained herein or at law to the contrary, the amount
payable to Executive pursuant to this Section 6 shall not be reduced or
otherwise affected by any sums earned or that could be earned by Executive
pursuant to any employment arrangement or other business activity in which
the
Executive may or could possibly participate after the termination date. The
Company and Executive agree that amounts payable to Executive under this Section
6 are reasonable liquidated damages with respect to wrongful or early
termination of this Agreement, and shall be absolutely and unconditionally
payable to Executive, his heirs, successors, administrator or executor as
provided herein without proof of actual damages and without regard to
Executive’s efforts to mitigate damages.
(e) Upon
termination of this Agreement, the provisions of Sections 6 through 12 shall
survive the termination of this Agreement for a period of five (5)
years.
(f) As
used
herein, "Cause" shall be limited to the Executive’s: (A) embezzlement or willful
misappropriation of funds of the Company, (B) willful misconduct that causes
material harm to the Company or any of its affiliates; (C) conviction or
commission of, or plea of nolo contendere by, Executive of any felony,
misdemeanor or other illegal conduct involving an act of moral turpitude or
otherwise relating directly or indirectly to the business or reputation of
the
Company; (D) habitual drug or other substance abuse that interferes in any
material respects with the performance of Executive's duties under this
Agreement; (E) debarment by any federal agency that would limit or prohibit
Executive from serving in his prescribed capacity for the Company under this
Agreement; (F) continuing failure to communicate and fully disclose any and
all
information related to the business, operations, management and accounting
of
the Company and/or its affiliates to the Board and CEO, the failure of which
would adversely impact the Company or may result in a violation of state or
federal securities laws; (G) continuing willful and intentional failure to
perform his duties as stated herein or as reasonably requested by the Board
or
CEO; or (H) dishonesty towards, fraud upon, or deliberate injury or attempted
injury to the Company or any of its affiliates.
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7. Confidential
Information of Company. Executive acknowledges
that Executive
has been exposed to the Company's confidential and proprietary information
prior
to the Effective date and during
the performance
of his
duties hereunder
Executive will
be
handling financial, accounting, statistical, marketing and personnel information
of customers of the
Company
("Confidential Information"). All such Confidential Information is confidential
and shall not be disclosed, directly or indirectly, or used by Executive in
any
way, either during the Term
of this
Agreement or for
five
(5) years
thereafter except as required in the course of Executive's employment with
the
Company
and/or
its affiliates. Confidential information will not include information which:
(a)
is now, or hereafter becomes, through no act or failure to act on the part
of
Executive, public information; (b) was acquired by Executive before receiving
such information from the Company and without restriction as to use or
disclosure; (c) is hereafter rightfully furnished to the Executive by a third
party, without restriction as to use or disclosure; (d) is required to be
disclosed pursuant to law including, without limitation, to any governmental
authority or in response to a subpoena, provided the Executive uses reasonable
efforts to give the Company reasonable advance notice of such required
disclosure; or (e) is disclosed with the prior written consent of the Company.
8. Unfair
Competition; Non-Solicitation.
8.1 Unfair
Competition. During the Term
of this
Agreement, Executive shall not, directly or indirectly, whether as a partner,
employee, director, creditor, stockholder, or otherwise, promote, participate,
or engage in any activity or other business which is competitive with
the
Company’s business. The obligation of Executive not to compete with Company
shall not prohibit Executive from owning or purchasing up to two (2%) percent
of
any class of equity securities
of any corporation having a class of equity securities registered pursuant
to
the Securities Exchange Act of 1934, as amended, which are publicly owned and
regularly traded on a recognized stock exchange or on the
over-the-counter
market provided that such ownership represents a personal investment and that
neither Executive nor any group of persons including the Executive in any way,
directly or indirectly, manages or exercises control of any such corporation,
guarantees any of its financial obligations or otherwise takes part in its
business other than exercising his right as a shareholder or seeks to do any
of
the foregoing. Notwithstanding anything in this Section 8.1 to the contrary,
the
Company and Executive agree that Executive may promote, participate, or engage,
as a partner, employee, director, creditor, stockholder, or otherwise, in the
entities listed on Exhibit B.
8.2 Non-Solicitation
of Customers. While employed by the Company, and for a period of one (1) year
thereafter, Executive agrees not to divert or attempt to divert (by solicitation
or other means), whether directly, or indirectly, the Company's or its
affiliate's customers existing at the time his employment terminates.
8.3 Non-Solicitation
of Employees. During the term of Executive's employment with the Company, and
for a period of one (1) year thereafter, Executive shall not directly or
indirectly solicit or encourage, or cause others to solicit or encourage, any
employees of Company or its affiliates to terminate their employment with the
Company. However, this obligation will not affect any responsibility Executive
may have as an employee if the Company with respect to the bona fide hiring
and
firing of the Company's personnel.
8.4 Non-Disparagement.
Upon termination of Executive's employment with the Company, Executive agrees
to
not make any disparaging remarks about the Company, or its affiliates, or any
officers, directors, employees, consultants or independent contractors of or
to
any of the foregoing.
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9. Trade
Secrets. Executive shall not disclose to any others, or take or use for
Executive’s own purposes or purposes of any others, during the term of this
Agreement or at any time thereafter, any of Company’s trade secrets, including
without limitation, Confidential Information, customer lists, computer programs
or computer software of Company. Executive agrees that these restrictions shall
also apply to (i) trade secrets belonging to third parties in Company’s
possession and (ii) trade secrets conceived, originated, discovered or developed
by Executive during the Term
of this
Agreement
relating
to the affairs of the Company.
Information of Company shall not be considered a trade secret and
its
disclosure or use by Executive will be permitted if it falls within any of
the
provisions of the third sentence of Section 7 above.
10. Inventions;
Ownership Rights. Executive agrees that all ideas, techniques, inventions,
systems, formulas, designs, discoveries, technical information, programs,
prototypes and similar developments (“Inventions”) developed, created,
discovered, made, written or obtained by Executive in the course of or as a
result of performance of his duties hereunder, and all related industrial
property, copyrights, patent rights, trade secrets and other forms of protection
thereof, shall be and remain the sole property of the
Company
and its assigns. Executive shall
promptly disclose to Company, or any persons designated by it, all Inventions,
made or conceived or reduced to practice or learned by Executive, either alone
or jointly with others, during the Term which are related to or useful in the
business of the Company, or result from tasks assigned to Executive by the
Company, or result from use of premises owned, leased or contracted by the
Company. Such disclosure shall continue for one year after termination of
employment with respect to anything that would be an Invention if made,
conceived, reduced to practice or learned prior to termination of employment.
Executive
agrees to execute or cause to be executed such assignments and applications,
registrations and other documents and to take such other action as may be
reasonably
requested
by
the
Company
to enable the
Company
to protect its rights to any such Inventions.
11. Indemnification.
In the event Executive or his estate or executors becomes a party, or is
threatened to be made a party, to any threatened, pending or completed action,
suit or proceeding, whether or not by or in the right of Company, and whether
civil, criminal, administrative, investigative or otherwise, by reason of
Executive's performance of Executive's duties hereunder or the fact that
Executive is or was a director, officer, employee, agent or fiduciary of the
Company, or is or was serving at the request of Company as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust
or
other enterprise, the Company shall, to the maximum extent permitted by
applicable law, hold the Executive harmless from and against any claim, loss
or
cause of action arising from or relating thereto; provided, however, that the
indemnity provided under this Section shall not apply with respect to any
liability or matter arising from acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, for any breach
of
the Executive’s duty of loyalty to the Company, or for any transaction from
which the Executive derived an improper personal benefit. If any claim is
asserted against the Executive for which the Executive reasonably believes
in
good faith he is entitled to be indemnified hereunder, the Company shall, at
its
option and to the maximum extent permitted by applicable law, (i) assume the
defense thereof or (ii) pay the Executive’s reasonable legal expenses (or cause
such expenses to be paid) on a quarterly basis, if the Company does not so
assume the defense; provided, that the Executive shall reimburse the Company
for
such amounts if the Executive shall be found by a final, non-appealable order
of
a court of competent jurisdiction or any arbitrator not to be entitled to
indemnification hereunder. Executive shall cooperate as reasonably requested
by
the Company in the defense of any such threatened or pending action, suit or
proceeding. The Company's indemnity obligations and duties as set forth in
this
shall survive indefinitely the termination or expiration of this Agreement
for
any reason.
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12.
Miscellaneous.
12.1 Assignment.
It
is
hereby agreed that Executive’s rights and obligations under this Agreement are
personal and may
not
be delegated or assigned. No assignment by the Company shall be effective unless
the assignee expressly agrees in writing to become bound by the terms and
conditions hereof; provided, however, Company may assign this Agreement to
its
affiliates.
12.2 Binding
Effect. The obligations of this Agreement shall be binding upon, and the
benefits of this Agreement shall inure to, the parties hereto, their legal
representatives, administrators, executors, heirs, legatees, distributees,
successors and permitted assigns, and upon transferees by operation of law,
whether or not any such person or entity shall have signed this
Agreement.
12.3 Notices.
Any notice permitted, required or given hereunder shall be in writing and shall
be delivered (i) personally, (ii) by any prepaid overnight courier delivery
service then in general use, (iii) mailed, by registered or certified mail,
return receipt requested, or (iv) transmitted by fax and then confirmed within
three business days by any other method set forth above, to the addresses
designated on the first page hereof or at such other address as may be
designated by notice duly given hereunder. A notice provided in the manner
required herein shall be deemed given : (i) if delivered personally, upon
delivery; (ii) if sent by overnight courier, on the first business day after
it
is sent; (iii) if mailed, three business days after mailing; and (iv) if sent
by
fax, upon actual receipt of the fax or confirmation thereof (whichever is
first).
12.4 Further
Assurances. Each of the parties agrees to execute, acknowledge, deliver, file,
record and publish such certificates, instruments, agreements and other
documents, and to take all such further action as may be required by law or
which either party deems reasonably necessary or useful in furtherance of the
purposes and objectives and intentions underlying this Agreement and not
inconsistent with its terms.
12.5 Entire
Agreement. This Agreement incorporates the entire agreement between the parties
relating to the subject matter hereof
and
supersedes all prior agreements
and understandings of the parties, whether written or oral, with respect to
its
subject matter.
12.6 Amendments;
Waiver. Except as expressly provided herein, neither this Agreement nor any
provision hereof may be terminated, modified or amended unless in writing signed
by both parties hereto. No waiver by any party, whether express or implied,
of
any provision of this Agreement, or of any breach or default, shall constitute
a
waiver of a breach of any similar or dissimilar provision or condition or shall
be effective unless in writing signed by the party against whom enforcement
is
sought.
12.7 Severability;
Captions. If any provision of this Agreement or the application thereof to
any
person or circumstances shall be held invalid or unenforceable to any extent,
the remainder of this Agreement and the application of such provision to other
parties or circumstances shall not be affected thereby and shall be enforced
to
the greatest extent permitted by law. The headings in this Agreement are
inserted for convenience and identification only.
12.8 Actions
Contrary to Law. Nothing contained in this Agreement shall be construed to
require the commission of any act contrary to law, and whenever there is any
conflict between any provision of this Agreement and any statute, law,
ordinance, or regulation, contrary to which the parties have no legal right
to
contract, then the latter shall prevail; but in such event, the provisions
of
this Agreement so affected shall be curtailed and limited only to the extent
necessary to bring it within legal requirements.
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12.9
Attorneys’
Fees.
If the
services of an attorney are required by any party to secure the performance
hereof or otherwise upon the breach or default of another party to this
Agreement, or if any judicial remedy or arbitration is necessary to enforce
or
interpret any provision of this Agreement or the rights and duties of any person
in relation thereto, the prevailing party shall be entitled to reasonable
attorneys' fees, costs and other expenses, in addition to any other relief
to
which such party may be entitled.
12.10 Governing
Law; Arbitration. This Agreement shall be governed by, and construed in
accordance with, the internal laws of the State of Nevada without giving effect
to its principles of conflicts of law. Any dispute or controversy between the
Company and Executive, arising out of or relating to this Agreement, the breach
of this Agreement, or otherwise, shall be settled by binding arbitration in
Casper, Wyoming administered by
the
American Arbitration Association
in
accordance with its
Commercial Arbitration Rules then
in
effect. No remedy conferred in this Agreement upon the Executive or the Company
is intended to be exclusive of any other remedy, and each and every such remedy
shall be cumulative and shall be in addition to every other remedy conferred
herein or now or hereafter existing at law or in equity or by statute or
otherwise.
12.11 Counterparts.
This Agreement may be executed in one or more counterparts, each of which will
be deemed an original and together shall constitute a single document.
12.12
Tax
Advice. The Executive acknowledges that the Executive has not relied and will
not rely upon the Company or the Company’s counsel with respect to any tax
consequences related to the terms and conditions of this Agreement. The
Executive assumes full responsibility for all such consequences and for the
preparation and filing of all tax returns and elections which may or must be
filed in connection with this Agreement.
12.13
Representation. The parties to this Agreement, and each of them, acknowledge,
agree, and represent that it: (a) has directly participated in the negotiation
and preparation of this Agreement; (b) has read the Agreement and has had
the opportunity to discuss it with counsel of its own choosing; (c) it is fully
aware of the contents and legal affect of this Agreement; (d) has authority
to enter into and sign the Agreement; and (e) enters into and signs the
same by its own free will.
12.14 Section
409A. It is intended that this Agreement will comply with Section 409A of the
Internal Revenue Code of 1986, as amended (and the regulations promulgated
thereunder) to the extent the Agreement is subject thereto, and the Agreement
shall be interpreted on a basis consistent with such intent. If any amendment
to
the Agreement is necessary in order for it to comply with Section 409A, the
parties will negotiate in good faith to amend the Agreement in a manner that
preserves the original intent of the parties to the extent reasonably possible.
12.15
Drafting. The parties to this Agreement acknowledge that each of them have
participated in the drafting and negotiation of this Agreement. For purposes
of
interpreting this Agreement, each provision, paragraph, sentence and word herein
shall be deemed to have been jointly drafted by both parties. The parties intend
for this Agreement to be construed and interpreted neutrally in accordance
with
the plain meaning of the language contained herein, and not presumptively
construed against any actual or purported drafter of any specific language
contained herein.
[Signatures
on following page.]
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IN
WITNESSETH WHEREOF, the undersigned have executed this Agreement as of the
date
first above written.
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By:
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Name:
Xxxxxx Xxxxxxxx
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Title:
Chief Executive Officer
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XXXXXX
X. XXXXXXX
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EXHIBIT
A
9
EXHIBIT
B
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