XXXXXX TREE CONSTRUCTION, INC.
A Nevada Corporation
Exhibit 10 (b)
Management and Stock Purchase Agreement between Xxxxxx Tree,
Inc. and Xxxx Xxxxxxx, dated July 29, 2000
MANAGEMENT AND STOCK PURCHASE AGREEMENT
(BOARD MEMBER)
THIS AGREEMENT, dated July 29, 2000 by and between XXXXXX
TREE INC., a NEVADA corporation ("XXXXXX TREE"), and XXXX
XXXXXXX, an individual ("XXXXXXX").
PREAMBLE
The Board of Directors of the Company recognizes XXXXXXX'x
potential contribution to the growth and success of the Company
and desires to assure the Company of XXXXXXX'x services in a
management and/or advisory capacity as a Board Member and to
compensate him therefor. XXXXXXX is willing to serve in such a
role with the Company and to commit himself to serve the Company
on the terms herein provided. In connection with this service,
the Company proposes to xxxxx Xxxxxxx Restricted Stock on the
terms herein provided, including particularly XXXXXXX'x
undertaking to assist the Company. XXXXXXX'x duties will include,
among other functions, advising the Company as to bidding on
projects, securing such work and managing sub-contractors as well
as networking with local developers as necessary.
WITNESSETH:
Whereas: XXXXXX TREE is engaged in the business of general
contracting, construction, finishing work and remodeling; and
Whereas: XXXXXXX has been engaged in similar businesses and
is willing and able to assist XXXXXX TREE along the general terms
and conditions herein set forth; and
Whereas: the parties believe that XXXXXXX can substantially
assist XXXXXX TREE for mutual benefit;
Now, therefore, for the mutual promises contained herein and
for other good and valuable consideration it is agreed as
follows:
NOW, THEREFORE, in consideration of the foregoing and of the
respective covenants and agreements of the parties, the parties
agree as follows:
1. Definitions
"Board" shall mean the Board of Directors of the
Company, together with an executive committee thereof (if any),
as same shall be constituted from time to time.
"Cause" for termination shall mean (i) XXXXXXX'x
final conviction of a felony involving a crime of moral
turpitude, (ii) acts of XXXXXXX which, in the judgment of the
Board, constitute willful fraud on the part of XXXXXXX in
connection with his duties under this Agreement, including but
not limited to misappropriation or embezzlement in the
performance of duties as an XXXXXXX of the Company, or willfully
engaging in conduct materially injurious to the Company and in
violation of the covenants contained in this Agreement, or
(iii) gross misconduct, including but not limited to the willful
failure of XXXXXXX either to (a) continue to obey lawful written
instruction of the Board after thirty (30) days notice in writing
of XXXXXXX'x failure to do so and the Board's intention to
terminate XXXXXXX if such failure is not corrected, or
(b) correct any conduct of XXXXXXX which constitutes a material
breach of this Agreement after thirty (30) days notice in writing
of XXXXXXX'x failure to do so and the Board's intention to
terminate XXXXXXX if such failure is not corrected.
"Chairman" shall mean the individual designated by
the Board from time to time as its chairman.
"Change of Control" shall mean the occurrence of
one or more of the following three events:
(1) After the effective date of this
Agreement, any person becomes a beneficial owner (as
such term is defined in Rule 13d-3 promulgated under
the Securities Exchange Act of 1934) directly or
indirectly of securities representing 33% or more of
the total number of votes that may be cast for the
election of directors of the Company;
(2) Within two years after a merger,
consolidation, liquidation or sale of assets involving
the Company, or a contested election of a Company
director, or any combination of the foregoing, the
individuals who were directors of the Company
immediately prior thereto shall cease to constitute a
majority of the Board; or
(3) Within two years after a tender offer or
exchange offer for voting securities of the Company,
the individuals who were directors of the Company
immediately prior thereto shall cease to constitute a
majority of the Board.
"XXXXXXX" shall mean Xxxx Xxxxxxx and, if the
context requires, his heirs, personal representatives, and
permitted successors and assigns.
"Person" shall mean any natural person,
incorporated entity, limited or general partnership, business
trust, association, agency (governmental or private), division,
political sovereign, or subdivision or instrumentality, including
those groups identified as "persons" in '' 13(d)(3) and 14(d)(2)
of the Securities Exchange Act of 1934.
"Restricted Stock" shall mean the Company's Common
Stock, $.001 par value.
"Reorganization" shall mean any transaction, or
any series of transactions consummated in a 12-month period,
pursuant to which any Person acquires (by merger, acquisition, or
otherwise) all or substantially all of the assets of the Company
or the then outstanding equity securities of the Company and the
Company is not the surviving entity, the Company being deemed
surviving if and only if the majority of the Board of Directors
of the ultimate parent of the surviving entity were directors of
the Company prior to its organization.
"Territory" shall mean any state of the United
States and any equivalent section or area of any country in which
the Company has revenue-producing customers or activities.
"Company" shall mean Xxxxxx Tree, Inc., a Nevada
corporation, together with such subsidiaries of the Company as
may from time to time exist.
2. Position, Responsibilities, and Term of Employment.
2.01 Position. XXXXXXX shall serve as Board Member and
Advisor to the Company. In this capacity XXXXXXX shall, subject
to the bylaws of the Company, and to the direction of the Board,
serve the Company by performing such duties and carrying out such
responsibilities as are normally related to such position in
accordance with the standards of the industry. The Board shall
either vote, or recommend to the shareholders of the Company, as
appropriate, that during the term of tenure pursuant to this
Agreement: (i) XXXXXXX be nominated for election as a director
at each meeting of shareholders held for the election of
directors; (ii) XXXXXXX be elected to and continued on the Board
of each subsidiary of the Company, (iv) if the Board of the
Company or any of its subsidiaries shall appoint an executive
committee (or similar committee authorized to exercise the
general powers of the Board), XXXXXXX be elected to and continued
on such committee.
2.02 Licensing. XXXXXXX agrees to allow the Company to
operate with the benefit of general contracting or contractors
licenses duly issued by the state of Nevada, County of Xxxxx
and/or City of Las Vegas retained by XXXXXXX or entity(s)
controlled by XXXXXXX for a period of six (6) months from the
date of execution of this Agreement or until such time as the
Company or its officers or directors have themselves secured such
licenses whichever occurs first.
2.03 Best Efforts Covenant. XXXXXXX will, to the best
of his ability, devote as necessary, his professional and
business time and best efforts to the performance of his duties
for the Company and its subsidiaries and affiliates.
2.04 Confidential Information. XXXXXXX recognizes and
acknowledges that the Company's trade secrets and proprietary
information and know-how, as they may exist from time to time
("Confidential Information"), are valuable, special and unique
assets of the Company's business, access to and knowledge of
which are essential to the performance of XXXXXXX'x duties
hereunder. XXXXXXX will not, during or after the term of his
employment by the Company, in whole or in part, disclose such
secrets, information or know-how to any Person for any reason or
purpose whatsoever, nor shall XXXXXXX make use of any such
property for his own purposes or for the benefit of any Person
(except the Company) under any circumstances during or after the
term of his employment, provided that after the term of his
employment these restrictions shall not apply to such secrets,
information and know-how which are then in the public domain
(provided that XXXXXXX was not responsible, directly or
indirectly, for such secrets, information or processes entering
the public domain without the Company's consent). XXXXXXX shall
have no obligation hereunder to keep confidential any
Confidential Information if and to the extent disclosure of any
thereof is specifically required by law; provided, however, that
in the event disclosure is required by applicable law, the
XXXXXXX shall provide the Company with prompt notice of such
requirement, prior to making any disclosure, so that the Company
may seek an appropriate protective order. XXXXXXX agrees to hold
as the Company's property all memoranda, books, papers, letters,
customer lists, processes, computer software, records, financial
information, policy and procedure manuals, training and
recruiting procedures and other data, and all copies thereof and
therefrom, in any way relating to the Company's business and
affairs, whether made by him or otherwise coming into his
possession, and on termination of his employment, or on demand of
the Company at any time, to deliver the same to the Company.
XXXXXXX agrees that he will not use or disclose to other BULLOCHs
of the Company, during the term of this Agreement, confidential
information belonging to his former employers.
XXXXXXX shall use his best efforts to prevent the
removal of any Confidential Information from the premises of the
Company, except as required in his normal course of employment by
the Company. XXXXXXX shall use his best efforts to cause all
persons or entities to whom any Confidential Information shall be
disclosed by him hereunder to observe the terms and conditions
set forth herein as though each such person or entity was bound
hereby.
2.05 Nonsolicitation. Except with the prior written
consent of the Board, XXXXXXX shall not solicit customers,
clients, or employees of the Company or any of its affiliates for
a period of twelve (12) months from the date of the expiration of
this Agreement. Without limiting the generality of the
foregoing, XXXXXXX will not willfully canvas, solicit nor accept
any such business in competition with the business of the Company
from any customers of the Company with whom XXXXXXX had contact
during, or of which XXXXXXX had knowledge solely as a result of,
his performance of services for the Company pursuant to this
Agreement. XXXXXXX will not directly or indirectly request,
induce or advise any customers of the Company with whom XXXXXXX
had contact during the term of this Agreement to withdraw,
curtail or cancel their business with the Company. XXXXXXX will
not induce or attempt to induce any employee of the Company to
terminate his/her employment with the Company.
2.06 Records, Files. All records, files, drawings,
documents, equipment and the like relating to the business of the
Company which are prepared or used by XXXXXXX during the term of
his employment under this Agreement shall be and shall remain the
sole property of the Company.
2.07 Equitable Relief. XXXXXXX acknowledges that his
services to the Company are of a unique character which give them
a special value to the Company. XXXXXXX further recognizes that
violations by XXXXXXX of any one or more of the provisions of
this Section 2 may give rise to losses or damages for which the
Company cannot be reasonably or adequately compensated in an
action at law and that such violations may result in irreparable
and continuing harm to the Company. XXXXXXX agrees that,
therefore, in addition to any other remedy which the Company may
have at law and equity, including the right to withhold any
payment of compensation under Section 4 of this Agreement, the
Company shall be entitled to injunctive relief to restrain any
violation, actual or threatened, by XXXXXXX of the provisions of
this Agreement.
3. Compensation.
3.01 Override. The Company shall pay to XXXXXXX for
the services to be rendered hereunder a two and one-half (2 1/2)
percent override on gross revenue generated from each project
undertaken by the Company ("the Override) which shall be payable
upon receipt by the Company, of EACH payment for each project.
3.02 Stock Issuance. The Company shall issue XXXXXXX
100,000 shares of restricted stock (pursuant to Rule 144).
4. Miscellaneous.
4.01 Assignment. This Agreement and the rights and
obligations of the parties hereto shall bind and inure to the
benefit of each of the parties hereto and shall also bind and
inure to the benefit of any successor or successors of the
Company in a reorganization, merger or consolidation and any
assignee of all or substantially all of the Company's business
and properties, but, except as to any such successor of the
Company, neither this Agreement nor any rights or benefits
hereunder may be assigned by the Company or XXXXXXX.
4.02 Initial Term and Extensions. Except as otherwise provided,
the term of this Agreement shall be two (2) years commencing with
the effective date hereof.
4.03 Governing Law. This Agreement shall be construed in
accordance with and governed for all purposes by the laws of the
State of Nevada.
4.04 Interpretation. In case any one or more of the
provisions contained in this Agreement shall, for any reason, be
held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any
other provisions of this Agreement, but this Agreement shall be
construed as if such invalid, illegal or unenforceable provision
had never been contained herein.
4.05 Notice. Any notice required or permitted to be
given hereunder shall be effective when received and shall be
sufficient if in writing and if personally delivered or sent by
prepaid cable, telex or registered air mail, return receipt
requested, to the party to receive such notice at its address set
forth at the end of this Agreement or at such other address as a
party may by notice specify to the other.
4.06 Amendment and Waiver. This Agreement may not be
amended, supplemented or waived except by a writing signed by the
party against which such amendment or waiver is to be enforced.
The waiver by any party of a breach of any provision of this
Agreement shall not operate to, or be construed as a waiver of,
any other breach of that provision nor as a waiver of any breach
of another provision.
4.07 Binding Effect. Subject to the provisions of
Section 4 hereof, this Agreement shall be binding on the
successors and assigns of the parties hereto.
4.08 Survival of Rights and Obligations. All rights
and obligations of XXXXXXX or the Company arising during the term
of this Agreement shall continue to have full force and effect
after the termination of this Agreement unless otherwise provided
herein.
The Company
By__________________________
__________________________
/s/XXXX XXXXXXX
