EMPLOYMENT AGREEMENT
This
EMPLOYMENT AGREEMENT (the "Agreement"), is effective as of January 15, 2009, by
and between AMERICA WEST RESOURCES, INC. ("Employer"), and XXXX X. XXXXXX (the
"Executive").
WHEREAS , Employer desires to retain the
experience, abilities and service of the Executive upon the terms and conditions
specified herein; and
WHEREAS , the Executive is willing to enter into
this Agreement upon the terms and conditions specified
herein;
NOW, THEREFORE
, in consideration of the
premises, the terms and provisions set forth herein, the mutual benefits to be
gained by the performance thereof and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1.
Employment. Employer
hereby offers and the Executive hereby accepts such offer, all upon the terms
and conditions set forth herein.
SECTION 2. Term.
Subject to the terms and
conditions of this Agreement, the Executive shall be employed by Employer
commencing on January 15, 2009, (the "Effective Date") and terminating on
December 31, 2010, (the "Primary Term") unless sooner terminated pursuant to
Section 5 of this Agreement.
SECTION 3. Duties and
Responsibilities.
A. Capacity.
The Executive shall serve
in the capacity of Chief Financial Officer of the Employer. The Executive shall
perform the duties ordinarily expected of a Chief Financial Officer and shall
also perform such other duties consistent therewith as the Chief Executive
Officer of the Employer shall, from time to time, reasonably
determine.
B. Full-Time Duties. The
Executive shall devote his full business time, attention and energies to the
business of the Employer. Notwithstanding anything herein to the contrary, the
Executive shall be allowed to (a) manage the Executive's personal investments
and affairs, and (b) (i) serve on boards or committees of civic or charitable
organizations or trade associations, and (ii) with the permission of the Chief
Executive Officer of the Employer, serve on the board of directors of any
corporation or as an advisory director of any corporation; provided that such
activities do not interfere with the proper performance of his duties and
responsibilities specified in Section 3(A).
C. Vacation Time &
Holidays. Executive shall be entitled to take three (3) weeks
of vacation per calendar year, and such time shall be fully-vested immediately
upon the Effective Date. Executive’s vacation time may be increased
to that of other
corporate
executives in 2010 if Employer’s policies provide for more than three weeks per
annum for corporate executives. In addition, Executive shall be
allowed time off for holidays per the Employer’s corporate
calendar.
SECTION 4.
Compensation.
A. Base Salary.
During the term of this
Agreement, the Employer shall pay the Executive , or an entity designated by the
Executive, the sum of $223,000 per annum as set forth herein. For the
month of January 2009, Employer shall pay $9,300 by January 20,
2009. Beginning February 2009 and thereafter during the term of
this Agreement, Employer shall make payments in monthly installments of
$18,583.33, payable by the 10th calendar day of each
month.
B. Executive Bonus
Program. The
Executive shall be entitled to participate in any executive bonus program
offered by the Employer during the term of this Agreement.
C. Corporate
Housing
& Relocation Expenses. During the term of this Agreement,
Employer shall offer Executive the use of a corporate cottage in Price, Utah,
for housing at no charge. The corporate cottage is and shall remain
the property of an affiliate of the Employer. In addition, Employer
shall offer or pay for reasonable temporary housing to the Executive in Salt
Lake City, Utah, for a period of four months. Employer shall
reimburse Executive for actual, customary, and reasonable relocation expenses
incurred by Executive to move to the State of Utah.
D. Award of Stock
Options. Within 16
days of the signing of the Agreement (the “Equity Compensation”), Employer will
issue to Executive an option to purchase 2,000,000 shares of Employer’s common
stock at an exercise price of $0.01. The warrant shall have a five-year
term. Employee shall vest in the Equity Compensation as
follows:
March 31,
2009 400,000 shares
June 30,
2009
400,000 shares
September 30,
2009 400,000 shares
December 31,
2009 400,000 shares
March 31,
2010 400,000 shares
Should this Agreement be terminated
prior to December 31, 2010 for any reason, Employee’s vesting in the Equity
Compensation shall cease immediately upon the termination
date. Employee understands that the Equity Compensation underlying
shares shall be “restricted, “as that term is generally understood in the
securities industry. The parties understand that such shares shall be issued
pursuant to the exemption from registration under Section 4(2) of the Securities
Act of 1933 and that the resale of such shares shall be
restricted.
SECTION 5. Termination of
Employment.
Notwithstanding the provisions of
Section 2, the Executive's employment hereunder may terminate under any of the
following conditions:
A. Death.
The Executive's employment
under this Agreement shall terminate automatically upon his
Death.
B. Disability.
The Executive's
employment under this Agreement may be terminated due to his Disability.
"Disability" shall mean permanent and total disability.
C. Termination by the
Employer for Cause. The
Executive's employment hereunder may be terminated for Cause by the Employer.
For purposes of this Agreement, "Cause" means:
(1) willful and persistent failure by
Executive to reasonably perform his duties:
(2) conviction of a misdemeanor
involving moral turpitude which materially affects Executive's ability to
perform his duties hereunder or materially adversely affects Executive's or
Employer's reputation or conviction of a felony;
(3) material dishonesty, defalcation, or
embezzlement or misappropriation of corporate assets or opportunities;
or
(4) any material default by Executive in
the performance of any covenants or agreements of Executive set forth in this
Agreement.
D. Termination
by Executive. Executive may terminate employment at
his discretion.
SECTION 6. Payments Upon
Termination.
A.
In the event of termination
of this agreement because of Executive’s death or disability, Employer shall be
obligated to pay, and the Executive shall be entitled to
receive:
(1) all accrued and unpaid Base
Salary under Section 4 to the date of termination;
(2) all accrued, but unpaid, bonuses and
all stock under Section 4(B) and 4(D).
B.
In the event Executive
terminates his employment with Employer prior to the end of the primary term of
this agreement or Employer terminates this agreement for cause prior to the end
of the primary term of this agreement, Employer shall be obligated to pay, and
the Executive shall be entitled to receive:
(2) all accrued, but
unpaid, bonuses and all stock under Section 4(B) and
4(D).
C.
In the event of termination
by the Employer without cause prior to the end of the Primary Term of this
agreement, Employer shall be obligated to pay and the Executive shall be
entitled to receive:
(1)
a lump sum severance payment (“Severance Payment”) equal to the Base Salary and
Cobra payments for the lesser of 1) six months and 2) the pro rata remaining
Primary Term.
(2)
all accrued, but unpaid, bonuses and all stock under Section 4(B) and
4(D).
SECTION 7.
Non-Competition. In the event of termination of
this agreement for any reason other by the Employer without cause, then
(i) during a period ending six months following termination Executive shall
not engage in any Competitive Activity and (ii) during a period ending one
year following termination Executive shall not engage in any Solicitation
Activity, as those terms are defined herein. If Executive chooses to
engage in any Competitive Activity or Solicitation Activity during that period,
Employer shall be entitled to recover, and Executive shall surrender, all stock
issued to Executive under the terms of this agreement. For purposes of
this Agreement, “Competitive Activity” shall mean Executive’s participation,
without the written consent of counsel for the Employer, in the management of
any business operation of any enterprise if such operation (a “Competitive
Operation”) engages in substantial and direct competition with any business
operation actively conducted by the Employer or its divisions and subsidiaries
on the date of termination. For purposes of this paragraph, a business operation
shall be considered a Competitive Operation if such business sells a competitive
product or service which constitutes (i) 15% of that business’s total sales or
(ii) 15% of the total sales of any individual subsidiary or division of
that business and, in either event, the Employer’s sales of a similar product or
service constitutes (i) 15% of the total sales of the Employer or
(ii) 15% of the total sales of any individual Subsidiary or division of the
Employer. Competitive Activity shall not include (i) the mere ownership of
securities in any enterprise, or (ii) participation in the management of
any enterprise or any business operation thereof, other than in connection with
a Competitive Operation of such enterprise. For purposes of this
Agreement, “Solicitation Activity” shall mean Executive’s solicitation for
employment or retention, hiring or retention, without the written consent of
counsel of the Employer, of any person employed or retained by the Employer on
the date of termination or during the month preceding the date of
termination.
SECTION 8. Amendment;
Waiver. The terms and
provisions of this Agreement may be modified or amended only by a written
instrument executed by each of the parties hereto, and compliance with the terms
and provisions hereof may be waived only by a written instrument executed by
each Party entitled to the benefits thereof. No failure or delay on the part of
any party in exercising any right, power or privilege granted hereunder shall
constitute a waiver thereof, nor shall any single or partial exercise of any
such right, power or privilege preclude any other or further exercise thereof or
the exercise of any other right, power or privilege granted
hereunder.
SECTION 9. Entire
Agreement. Except as
contemplated herein, this Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof and supersedes any and all
prior written or oral agreements, arrangements of understandings between the
Employer and the Executive with respect thereto.
SECTION 10. Notices.
All notices or
communications hereunder shall be in writing, addressed as follows or to any
address subsequently provided to the other party:
To Employer:
Attention: Chief Executive
Officer
00 Xxxx 000 Xxxxx, Xxxxx
000
Xxxx Xxxx Xxxx, Xxxx
00000
To Executive:
Xx. Xxxx X. Xxxxxx
0000 X.X. 00xx Xxxxxx, Xxxxx 0000
Xxxxx,
XX 33166-2626____________________
All such notices shall be conclusively
deemed to be received and shall be effective, (i) if sent by hand delivery or
overnight courier, upon receipt, (ii) if sent by telecopy or facsimile
transmission, upon confirmation of receipt by the sender of such transmission or
(iii) if sent by registered or certified mail, on the fifth day after the day on
which such notice is mailed.
SECTION 11.
Severability. In the event
that any term or provision of this Agreement is found to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining terms
and provisions hereof shall not be in any way affected or impaired thereby, and
this Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained therein.
SECTION 13. Governing
Law; Dispute Resolution. This Agreement shall be
governed by and construed in accordance
with the laws of the State of Utah (except that no effect shall be given
to any conflicts of law principles thereof that would require the application of
the laws of another jurisdiction). Any dispute or misunderstanding arising out
of or in connection with this Agreement shall first be settled, if possible, by
the parties themselves through negotiation and, failing success at negotiation
through mediation, and failing success at mediation, shall be arbitrated at in a
mutually agreeable place in the State of Utah. Unless otherwise agreed upon by
the parties, the arbitration shall be had before three arbitrators, each party
designating an arbitrator and the two designees naming a third arbitrator
experienced in employment related controversies. The procedure shall be in
accordance with the rules and regulations of the American Arbitration
Association.
SECTION 14. Headings.
The headings of the
sections contained in this Agreement are for convenience only and shall not be
deemed to control or affect the meaning or construction of any provision of this
Agreement.
SECTION 15.
Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
| /s/ XXX X. XXXXX | |
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By: Xxx X.
Xxxxx
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Its: Chief Executive
Officer
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XXXX X.
XXXXXX
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| /s/ XXXX X. XXXXXX | |
|
Executive
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