Unassociated Document


    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
      Joseph J. McQuade, an individual with an address at 6230 South Chestnut Street,
      Casper, Wyoming 82601 (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. 

    


    
      	 	
              AMERIWEST
                ENERGY CORP.

            
	 	 
	 	 
	 	
              By:

            	 
	 	
              Name:
                Walter Merschat

            
	 	
              Title:
                Chief Executive Officer

            
	 	 
	 	 
	 	 
	 	
              JOSEPH
                J. MCQUADE

            


    

     

    
      
        
        

      

      
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    EXHIBIT
      A

     

     

    
      
        
        

      

      
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    EXHIBIT
      B

    


    


    
      
        
        

      

      
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