EXHIBIT 10.1
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EMPLOYMENT AND NONCOMPETITION AGREEMENT
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(Xxxxxx X. Xxxxxxx)
THIS EMPLOYMENT AND NONCOMPETITION AGREEMENT ("Agreement") is entered
into to be effective July 21, 1999 ("Effective Date"), between USOL HOLDINGS,
INC., a Delaware corporation (the "Company"), and XXXXXX X. XXXXXXX
("Employee").
WHEREAS, the Company has requested Employee to serve as, and Employee
has agreed to serve as, the Chief Executive Officer ("CEO") of the Company;
WHEREAS, the Company and Employee intend that Employee shall also serve
as CEO of USOL, Inc., a Delaware corporation and a wholly owned subsidiary of
the Company ("USOL");
WHEREAS, the Employee and the Company have entered into that certain
Indemnification Agreement dated July 21, 1999 by and among Employee, Xxxxxx
Xxxxxx, USOL and U.S. OnLine Communications, Inc., a Delaware corporation (the
"Indemnification Agreement") in partial consideration of Company"s agreement to
employ the Employee as provided herein;
WHEREAS, the Company and Employee desire to enter into this Agreement
to formally set forth the terms and conditions under which Employee will be
employed by the Company.
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties contained herein and other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Company and Employee agree as follows:
1. Duties and Responsibilities.
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a. Position. The Company and Employee agree that, subject to the terms
and conditions of this Agreement, the Company will employ Employee and Employee
will serve as an employee, as the Company"s CEO. The Company shall endeavor to
cause the Employee to be elected to Company"s Board of Directors and as the
Chairman of the Board, and, in the sole discretion of the Board of Directors,
may be elected to the board of, and/or be appointed as an executive officer of,
affiliates and subsidiaries of Company, without the necessity for an amendment,
modification to or additional compensation under this Agreement. The Company
shall also endeavor to cause Employee to be appointed to serve as the CEO of
USOL, with similar duties to those performed as CEO of the Company.
b. Duties. Employee shall perform the following duties, and shall have
the following authority, and such other duties and authority as may from time to
time be assigned to him by the Board of Directors of Company in its reasonable
discretion.
i. Corporate Development. Employee will be responsible
for assisting the President, Chief Operating Officer ("COO") and Chief Financial
Officer ("CFO") with acquisition and merger opportunities consistent with the
Company"s business plan.
ii. Developing the Company's Infrastructure. Employee will
be responsible for assisting the President, COO and CFO in streamlining and
strengthening the Company"s systems and procedures, including systems and
procedures for processing of information, completing organizational charts and
job descriptions, and human resource procedures.
iii. Finance. Employee will be responsible for assisting
the President, COO and CFO in identifying and procuring sources of capital and
credit.
iv. Development of General Managers. Employee will be re-
sponsible for assisting the President, COO and other Company officers/managers
in hiring, managing, training and developing General Managers for the Company"s
affiliates, markets or divisions.
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v. Sales/Marketing. Employee will be responsible for: (a)
assisting the Vice President of Sales in meeting sales quotas; (b) assisting the
President, COO and Vice President of Sales in drafting and implementing
strategy; (c) drafting and implementing budgets; (d) assisting in locating and
executing key strategic alliances and ventures for the Company"s products and
services; and (e) assisting the Vice President of Sales with development of new
products and services for Company"s customers.
vi. Customer Service Bureau. Employee will be responsible for
assisting the COO, CFO, Manager of Operations and the Manager of the Customer
Service Bureau ("CSB") in continuing to improve CSB operations and with the
development of CTM, billing platforms, training programs, and overall systems
and procedures.
c. Extent of Services.
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i. Except as provided in this Agreement or otherwise permitted
by the Board of Directors of the Company, Employee shall devote his full time,
attention and energies to the business of Company and to the performance of his
duties as described above. Employee will use his full time, attention and
energies to promote the interests and welfare of the Company.
ii. Employee may participate in other businesses as a passive
investor, provided that Employee shall not, without the prior approval of a
majority of the Board of Directors of the Company (other than Employee if he is
serving as a director): (a) actively participate in the operation or management
of such businesses; or (b) make or maintain any investment in any entity with
which the Company has a commercial relationship of any kind, including that of
lessor, partner, investor, vendor, supplier, consultant or otherwise, or which
is in competition with the Company. The following exceptions apply to the
restrictions on Employee"s activities in the preceding sentence: (1) Employee
may invest in the securities of any publicly traded companies so long as such
investments do not constitute more than five percent (5%) of the outstanding
voting securities of any such company, (2) Employee may continue to serve as a
principal, broker and/or officer of real estate development companies in the
State of Texas, as long as such activities do not interfere with the performance
of his duties under this Agreement and (3) Employee may continue to own
interests in and participate in the management of the entities which do business
with the Company under the related party agreements described on Schedule 1 to
this Agreement, as long as any material amendments to such agreements, and any
new agreements with such entities, are approved by a majority of the Board of
Directors of the Company (other than Employee if he is serving as s director).
2. Term of Employment.
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a. Definitions. For the purposes of this Agreement the following
terms shall have the following meanings:
i. "Termination For Cause" shall mean termination by Company
of Employee's employment with Company because of (A) Employee's material breach
of this Agreement, and such breach is not cured within thirty (30) days after
written notice of such breach from Company to Employee; (B) a consistent course
of Employee's conduct which would tend to hold Company or any of its affiliates
in disrepute or scandal, as determined by Company in its reasonable discretion;
(C) failure to follow lawful directions in conformity with this Agreement of
Company's Board of Directors or its designee; and such failure is not cured
within thirty (30) days after written notice of such failure from Company to
Employee; (D) any material breach by Employee of his fiduciary duties to Company
or USOL; (E) gross neglect by Employee of his duties under this Agreement or any
act of theft or dishonesty by Employee; (F) Employee's disability pursuant to
Section 2.e of this Agreement; or (G) Employee's death pursuant to Section 2.f
of this Agreement.
ii. "Termination Other Than For Cause""shall mean termination
by Company of Employee's employment with Company (other than in a Termination
for Cause) and shall include constructive termination of Employee"s employment
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resulting from material breach of this Agreement by Company; such termination
shall only be effective if Company has failed to cure such material breach
within thirty (30) days after written notice from Employee to Company of a
material breach.
iii. "Voluntary Termination" shall mean termination by
Employee of Employee"s employment by Company other than (a) constructive
termination as described in Section 2.a.ii, (b) "Termination Upon a Change in
Control," and (c) termination by reason of Employee's death or disability as
described in Sections 2.e and 2.f.
iv. "Termination Upon a Change in Control" shall mean a
termination by Employee of Employee's employment with Company within 120 days
following a "Change in Control."
v. "Change in Control" shall mean (A) the time that Company
first determines that any person and all other persons who constitute a group
(within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934
("Exchange Act")) have acquired direct or indirect beneficial ownership (within
the meaning of Rule 13d-3 under the Exchange Act) of forty percent (40%) or more
of Company's or USOL's outstanding securities, or (B) a sale of all or
substantially all of the assets of the Company or USOL. Employee understands the
Company intends to merge with FirstLink Communications, Inc., an Oregon
corporation on or about August 31, 1999 (the "Merger"). Neither the Merger nor
any financial transaction carried out in connection with the Merger shall
constitute a Change In Control.
b. Initial Term. The term of employment of Employee by Company shall be
for a period of five (5) years beginning with the Effective Date ("Initial
Term"), unless terminated earlier pursuant to this Section 2. If Employee's
employment by the Company continues after the expiration of the Initial Term of
this Agreement, the Agreement shall continue to govern the parties"
relationship, except that Employee"s employment may thereafter be terminated by
either party at any time for any or no reason upon sixty (60) days' prior notice
to the other party.
c. Termination For Cause. Termination For Cause may be effected by
Company at any time during the term of this Agreement after the occurrence of an
event which constitutes a Termination For Cause and shall be effected by written
notification to Employee. Upon a Termination For Cause, Employee shall promptly
be paid all accrued salary, bonus compensation to the extent earned, vested
deferred compensation (other than pension plan or profit sharing plan benefits
which will be paid in accordance with the applicable plan), any benefits under
any plans of the Company in which Employee is a participant to the full extent
of Employee"s rights under such plans, accrued vacation pay and any appropriate
business expenses incurred by Employee in connection with his duties hereunder,
all to the date of termination, but Employee shall not be paid any other
compensation or reimbursement of any kind, including without limitation,
severance compensation. If at the time of a Termination For Cause Employee owes
any amounts to Company, such amounts shall be offset against the amounts payable
to Employee under the preceding sentence.
d. Termination Other Than For Cause. Notwithstanding anything else in
this Agreement, Company may effect a Termination Other Than For Cause at any
time upon giving written notice to Employee of such termination. Upon a
Termination Other Than For Cause, Employee shall promptly be paid all accrued
salary, bonus compensation to the extent earned, vested deferred compensation
(other than pension plan or profit sharing plan benefits which will be paid in
accordance with the applicable plan), any benefits under any plans of the
Company in which Employee is a participant to the full extent of Employee"s
rights under such plans (including accelerated vesting of any awards granted to
Employee under any of the Company"s stock option plans and stock award plans),
accrued vacation pay and any appropriate business expenses incurred by Employee
in connection with his duties hereunder, all to the date of termination, and all
severance compensation provided in Section 4.a, but no other compensation or
reimbursement of any kind. If at the time of a Termination Other Than For Cause
Employee owes any amounts to Company, such amounts shall be offset against the
amounts payable to Employee under the preceding sentence.
e. Termination by Reason of Disability. If, during the term of this
Agreement, Employee, in the reasonable judgment of the Board of Directors of
Company, has failed to perform his duties under this Agreement on account of
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illness or physical or mental incapacity, and such illness or incapacity
continues for a period of more than four (4) consecutive months, Company shall
(to the extent permitted by applicable law) have the right to terminate
Employee"s employment hereunder by written notification to Employee and payment
to Employee of all accrued salary, bonus compensation to the extent earned,
vested deferred compensation (other than pension plan or profit sharing plan
benefits which will be paid in accordance with the applicable plan), any
benefits under any plans of the Company in which Employee is a participant to
the full extent of Employee"s rights under such plans, accrued vacation pay and
any appropriate business expenses incurred by Employee in connection with his
duties hereunder, all to the date of termination, with the exception of medical
and dental benefits which shall continue through the expiration of this
Agreement, but Employee shall not be paid any other compensation or
reimbursement of any kind, including without limitation, severance compensation.
If at the time of a Termination By Reason of Disability Employee owes any
amounts to Company, such amounts shall be offset against the amounts payable to
Employee under the preceding sentence.
f. Death. In the event of Employee"s death during the term of this
Agreement, Employee"s employment shall be deemed to have terminated as of the
last day of the month during which his death occurs and Company shall promptly
pay to his estate or such beneficiaries as Employee may from time to time
designate all accrued salary, bonus compensation to the extent earned, vested
deferred compensation (other than pension plan or profit sharing plan benefits
which will be paid in accordance with the applicable plan), any benefits under
any plans of the Company in which Employee is a participant to the full extent
of Employee"s rights under such plans, accrued vacation pay and any appropriate
business expenses incurred by Employee in connection with his duties hereunder,
all to the date of termination, but Employee"s estate shall not be paid any
other compensation or reimbursement of any kind, including without limitation,
severance compensation. If at the time of Employee"s Death Employee owes any
amounts to Company, such amounts shall be offset against the amounts payable to
Employee under the preceding sentence.
g. Voluntary Termination. In the event of a Voluntary Termination,
Company shall promptly pay all accrued salary, bonus compensation to the extent
earned, vested deferred compensation (other than pension plan or profit sharing
plan benefits which will be paid in accordance with the applicable plan), any
benefits under any plans of the Company in which Employee is a participant to
the full extent of Employee"s rights under such plans, accrued vacation pay and
any appropriate business expenses incurred by Employee in connection with his
duties hereunder, all to the date of termination, but no other compensation or
reimbursement of any kind, including without limitation, severance compensation.
If at the time of a Voluntary Termination Employee owes any amounts to Company,
such amounts shall be offset against the amounts payable to Employee under the
preceding sentence.
h. Termination Upon a Change in Control. In the event of a Termination
Upon a Change in Control, Employee shall immediately be paid all accrued salary,
bonus compensation to the extent earned, vested deferred compensation (other
than pension plan or profit sharing plan benefits which will be paid in
accordance with the applicable plan), any benefits under any plans of the
Company in which Employee is a participant to the full extent of Employee"s
rights under such plans (including accelerated vesting of any awards granted to
Employee under any of the Company"s stock option plans and stock award plans),
accrued vacation pay and any appropriate business expenses incurred by Employee
in connection with his duties hereunder, all to the date of termination, and all
severance compensation provided in Section 4.a, but no other compensation or
reimbursement of any kind. If at the time of a Termination Upon A Change In
Control Employee owes any amounts to Company, such amounts shall be offset
against the amounts payable to Employee under the preceding sentence.
Notwithstanding the foregoing, a Termination Upon A Change In Control shall not
be deemed to have occurred upon the closing of the Merger, nor upon the closing
of any financial transaction connected with or related to the Merger, nor upon
the exercise of any warrants or options granted to parties prior to or
contemporaneously with the Merger or any transactions preceding the Merger.
i. Notice of Termination. Other than a Termination For Cause, Company
may effect a termination of Employee's employment pursuant to the provisions of
this Section 2 upon giving thirty (30) days' written notice to Employee of such
termination. Company may effect a Termination For Cause immediately without any
prior notice other than the notice and cure period for material breaches.
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Employee may effect a termination of Employee's employment pursuant to the
provisions of this Section 2 upon giving thirty (30) days written notice to
Company of such termination.
3. Salary, Benefits and Bonus Compensation. As compensation for services
to be rendered by Employee under this Agreement, the Company shall compensate
Employee as follows:
a. Base Salary. As payment for the services to be rendered by Employee
as provided in Section 1 and subject to the terms and conditions of Section 2,
Company agrees to pay to Employee a "Base Salary" for the twelve (12) calendar
months beginning the Effective Date at the rate of $175,000 per annum, prorated
for any partial year. The Company shall pay Employee"s Base Salary in
installments in accordance with the Company"s payroll policy for other
employees. Employee"s Base Salary shall be reviewed annually by the Board of
Directors.
b. Bonuses. Employee will be eligible for an annual bonus of up to
fifty percent (50%) of his then current base salary, subject to his continued
employment with the Company during the entire calendar year to which the bonus
applies. The amount of Employee"s bonus will be determined by the Board of
Directors, based upon the Company"s performance each year, and will be tied to
both qualitative and quantitative performance standards to be established by the
Board of Directors at the beginning of the calendar year. The Board of Directors
will provide written performance standards to Employee each year during the term
of this Agreement, not later than January 30 of the applicable year. Employee"s
1999 bonus will be based on factors to be established by the Board of Directors.
c. Additional Benefits. During the term of this Agreement, Employee
shall be entitled to the following fringe benefits:
i. Employee Benefits. Employee shall be eligible to
participate in such of Company"s benefits and deferred compensation plans as are
now generally available or later made generally available to executive officers
of the Company, including, without limitation, Company"s stock option plans,
profit sharing plans, annual physical examinations, dental and medical plans,
personal catastrophe and disability insurance, financial planning, retirement
plans and supplementary executive retirement plans, if any.
ii. Vacation. Employee shall be entitled to three (3) weeks
of vacation during each year during the term of this Agreement and any
extensions thereof, prorated for partial years.
iii. Reimbursement for Expenses. During the term of this
Agreement, Company shall reimburse Employee for reasonable and properly
documented out-of-pocket business and/or entertainment expenses incurred by
Employee in connection with his duties under this Agreement.
d. Merger. Employee hereby consents to the assignment (or any
deemed assignment if applicable) of this Agreement to FirstLink Communications,
Inc. upon the closing of the Merger.
4. Severance Compensation.
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x. Xxxxxxxxx Compensation in the Event of a Termination Upon a Change
in Control or in the Event of a Termination Other Than for Cause. In the event
Employee"s employment is terminated in a Termination Upon a Change in Control or
in a Termination Other Than For Cause, Employee shall be paid as severance
compensation his Base Salary (at the rate payable at the time of such
termination), for a period of eighteen (18) months from the date of such
termination. Employee is under no obligation to mitigate the amount owed
Employee pursuant to this Section 4.a by seeking other employment or otherwise.
Notwithstanding anything in this Section 4.a to the contrary, Employee may in
Employee"s sole discretion, by delivery of a notice to Company within thirty
(30) days following a Termination Upon a Change in Control or a Termination
Other Than For Cause, elect to receive severance compensation as a lump sum
severance payment by bank cashier's check equal to the present value of the flow
of cash payments that would otherwise be paid to Employee pursuant to this
Section 4.a discounted at a rate of 8% per annum. In the event Employee"s
employment is terminated in a Termination Upon a Change in Control or in a
Termination Other Than For Cause, Employee shall also be entitled to an
accelerated vesting of any awards granted to Employee under the Company"s stock
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option plans and any other equity rights or participation plans under which
Employee is a participant; such accelerated vesting shall occur regardless of
the terms and conditions contained in any such plans. Employee shall continue to
accrue retirement benefits (if any) and shall continue to enjoy any benefits
under any plans of the Company in which Employee is a participant to the full
extent of Employee"s rights under such plans, including any perquisites provided
under this Agreement, though the lesser of the remaining term of this Agreement
or eighteen (18) months from the date of termination under this subsection;
provided, however, that the benefits under any such plans of the Company in
which Employee is a participant, including any such perquisites, shall cease
upon re-employment by a new employer.
b. No Severance Compensation Upon Other Termination. In the event of
a Voluntary Termination or Termination For Cause, Employee or his estate shall
not be paid any severance compensation.
c. Limit on Aggregate Compensation Upon a Change in Control.
Notwithstanding anything else in this Agreement, solely in the event of a
Termination Upon a Change in Control pursuant to Section 2.h, the amount of
severance compensation paid to Employee under Sections 2 and 4 or otherwise, but
exclusive of any payments to Employee in respect of any stock options or
warrants then held by Employee (or any compensation deemed to be received by
Employee in connection with the exercise of any stock options or warrants at any
time) or by virtue of Employee"s exercise of a limited right under any stock
option plan upon a Change in Control, shall not include any amount that Company
is prohibited from deducting for federal income tax purposes by virtue of
Section 280G of the Internal Revenue Code or any successor provision.
5. Indemnification. The Company shall defend, indemnify and hold Employee
harmless from any and all liabilities, obligations, claims or expenses which
arise in connection with or as a result of Employee"s service as an officer,
manager, director or employee of the Company to the fullest extent allowed by
the Company"s organizational documents; provided, that the Company shall not be
obligated to defend, indemnify or hold Employee harmless from any liabilities,
obligations, claims or expenses which result from or are related to Employee
having committed an act of dishonesty, obtained any benefit of money or other
property to which he was not entitled, engaged in any willful misconduct or
engaged in behavior that is grossly negligent.
6. Noncompetition and Confidentiality.
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a. Fiduciary Obligations. During his employment hereunder, Employee
shall comply with his fiduciary obligations as an officer and, if elected, as a
member of the Board of Directors of the Company.
b. Noncompete and Nonsolicitation. During his employment hereunder and
for a period of twelve (12) months following the termination or other cessation
of his employment hereunder, Employee shall not, directly or indirectly, as a
director, officer, employee, owner, partner, agent, consultant, lessor, creditor
or otherwise, for any person, firm or entity, in any of the counties of the
states of the United States, engage in any of the following activities:
i. solicit or attempt to persuade any person or entity that
was a customer of the Company or any affiliate of the Company during Employee"s
employment hereunder to terminate or rescind its business or contractual
relationship with the Company or any affiliate of the Company;
ii. solicit for employment any employee of the Company or any
affiliate of the Company or attempt to persuade or entice any such employee to
terminate his or her employment with the Company or any affiliate of the
Company; or
iii. engage or participate in the business of selling,
installing or servicing telecommunications or cable or broadcast television
products, services or software, or in any other business engaged in by the
Company or any affiliate of the Company at any time during Employee"s employment
hereunder.
The restrictions contained in this Section 6.b shall not apply in the event of a
Termination Other Than For Cause or if the Company materially breaches this
Agreement and fails to cure such breach within thirty (30) days following
receipt of written notice of such breach.
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c. Confidentiality. Employee shall not, during his employment hereunder
or at any time thereafter, use for his own purposes or disclose to any other
person or entity any "Confidential Information" (defined below) concerning the
Company, its affiliates or any of their business operations, except as may be
consistent with his duties hereunder or as may be required by order of a court
of competent jurisdiction. "Confidential Information" means any information,
formula, pattern, compilation, program, device, method, technique, customer
list, or process concerning the Company or its business or customers: (i) that
derives independent economic value, actual or potential, from not being
generally known to, and not being readily ascertainable by proper means by,
other persons who can obtain economic value from its disclosure or use; or (ii)
the disclosure of which would be harmful to the interests of the Company.
d. Proprietary Rights. Employee hereby assigns and transfers to Company
all of his proprietary interest in any device, design, machine, practice,
process, method, product, literary composition, algorithm, or development,
innovation or improvement to existing Confidential Information (collectively,
the "Works") that is developed, conceived or created, in whole or in part,
during the term of this Agreement regardless of whether the Work is developed,
created or conceived while at Company facilities or another location or during
or after normal business hours; provided, however, that for the purposes of this
Agreement, Works shall only be deemed to include any of the foregoing that (i)
in any way relate to the present or anticipated business, activities or research
and development work of the Company, (ii) result from or are related to any work
performed for the Company, or (iii) were developed, created or conceived
utilizing the Company"s time, equipment, supplies, facilities, materials,
software, resources or other Confidential Information. Any Work that involves
the creation of any copyrightable work shall be considered a "work made for
hire," to the maximum extent permitted by law. If any copyrightable work is not
considered a "work made for hire," Employee, without further consideration,
hereby assigns and transfers all copyrights in the Work to Company. Employee
recognizes that all Works shall be the exclusive property of the Company.
Employee agrees to assist the Company in obtaining any patents, copyrights or
other form of proprietary rights protection on any Work, to sign all documents
and take other actions as the Company may reasonably request to obtain such
protection for Company, and to assist Company in protecting the Works against
infringement by other parties. Employee appoints the executive officers of the
Company to act as his agent and attorney-in-fact to perform any act necessary to
obtain any patents, copyrights or other form of proprietary protection covering
the Works. Employee represents that there are no Works owned wholly or in part
by him that are to be excluded from the scope of this Agreement. Employee also
agrees to disclose to the Company, in confidence, (A) all Works that Employee
develops, conceives or creates while employed by the Company and (B) all patent
or copyright applications filed by Employee within one (1) year after
termination of employment with the Company.
e. Damages. Employee agrees that the provisions of this Section 6 may
be enforced by temporary or permanent injunction; the Company shall not be
required to post any bond or security in any such temporary or permanent
injunction proceeding. The right to such injunctive relief shall be in addition
to and not in place of any further remedies to which the Company may be
entitled.
f. Enforcement. Employee agrees that the provisions of this Section 6
are reasonable. However, if any court of competent jurisdiction determines that
any provision within this Section 6 is unreasonable in any respect, the parties
intend that this Section 6 should be enforced to the fullest extent allowed by
such court.
g. Severable Units. Each county of each state covered by the covenant
not to compete set forth in Section 6.b, each of such states and each month
covered by this covenant not to compete shall be deemed a severable unit and
should any court determine that the inclusion of all such counties, states or
months would render such undertaking unreasonable or unenforceable for any
reason, those units which are necessary, in the judgment of the court, to be
deleted in order to render such an undertaking reasonable and enforceable shall
be deemed free of such noncompete and nonsolicitation undertaking but such
undertaking shall remain in full force and effect as to every other unit of
territory and time.
h. Survival. This Section 6 will survive the termination of this Agree-
ment except as otherwise indicated in Section 6.b.
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7. Arbitration. Any dispute arising out of or relating to this Agreement shall
be resolved by arbitration before a single, neutral arbitrator in Austin, Texas,
in accordance with the Employment Dispute Resolution Rules of the American
Arbitration Association; provided, however, that nothing herein shall prevent a
party from seeking injunctive relief to enforce compliance with this Section 7
or Section 6, or to enforce any ruling of the arbitrator. The results of the
arbitration shall be binding on the parties. All reasonable costs of the
arbitration, including attorney"s fees, shall be paid by the non-prevailing
party.
8. Notices. All notices, requests, consents and other communications required or
provided for in this Agreement shall be in writing and shall be deemed to be
given when: (a) delivered in person; (b) three days following deposit in the
U.S. mail for first class registered or certified mail with postage prepaid; (c)
delivered by overnight receipted courier service; or (d) sent by confirmed
facsimile transmission. Notices shall be addressed to the party at the address
set forth below, or such other addresses as may hereafter be designated in
writing by the party.
If to the Company, to:
USOL Holdings, Inc.
Attn: President
00000 Xxxxxx Xxxx.
Xxxxxx, Xxxxx 00000
With a copy to:
Xxxxx, Xxxxxxx & Xxxxxx, L.L.P.
Attn: Xx. Xxxxx X. Xxxxx
0000 X. XxXxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
If to Employee:
Xx. Xxxxxx X. Xxxxxxx
0000 Xxxx Xxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
9. Miscellaneous.
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a. Waiver of Breach. The waiver by a party of a breach of any provision
of this Agreement shall not operate or be construed as a waiver of any
subsequent breach
b. Assignment. Neither party may assign its rights or delegate its
duties hereunder without the prior written consent of the other party.
c. Entire Agreement. This Agreement and the transaction and documents
referred to herein contain the entire understanding of the parties with regard
to the subject matter of this Agreement and may only be changed by written
agreement signed by both parties. Without limiting the generality of the
foregoing, the Employment Agreement dated as of March 26, 1998 between the
Company"s predecessor in interest (U.S. OnLine Communications, Inc.) and
Employee is hereby superseded in its entirety, and is of no further force or
effect. Without limiting the generality of the foregoing, Employee agrees that
the portions of his March 26, 1998 employment agreement regarding any payments
thereunder and any events accelerating the vesting of certain equity options and
certain other restricted stock are null and void and of no further force and
effect, except for payments of deferred compensation, bonuses or expenses under
such agreement, not to exceed $90,000 when combined with any similar payments
due Xxxxxx X. Xxxxxx pursuant to his employment agreement dated March 26, 1998
and specifically set forth on Schedule 4.3 to that certain Asset Purchase
Agreement, dated as of July 21, 1999, by and between the Company, GMAC
Commercial Mortgage Corporation, a Pennsylvania corporation, and
XxxXxxxxxxxXxxx.xxx, Inc., a Delaware corporation.
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d. Binding Effect. This Agreement shall be binding upon and inure
to the benefit of the respective parties, and their legal representatives,
successors, heirs, and permitted assigns.
e. Governing Law. This Agreement shall be governed by, construed and
enforced in accordance with the laws of the State of Texas, without giving
effect to principles and provisions thereof relating to conflict or choice of
laws and irrespective of the fact that any one of the parties is now or may
become a resident of a different state.
f. Validity. If any term of this Agreement shall be invalid, illegal,
or unenforceable, in whole or in part, the validity of any of the other terms of
this Agreement shall not in an way be affected thereby.
g. Survival of Terms. The applicable provisions of Sections 2, 4, 5,
6, 7 , 8, and 9 shall survive any termination of this Agreement.
IN WITNESS WHEREOF, the Company and Employee have executed this Agreement to be
effective as of the date first above written.
COMPANY:
USOL Holdings, Inc.
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, President
Date Signed: _________________________
EMPLOYEE:
/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
Date Signed: _________________________
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Schedule 1
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Related Party Agreements
Right-of-Entry Contracts:
Employee has a beneficial ownership interest in one property that is served by
the Company. The property is the Highpoint Apartments, which is located in San
Antonio, Texas and has approximately 260 units. The property is owned by
Highpoint Holdings, Ltd.. Employee serves as the Vice President of Regional
Holdings, Inc., the General Partner of the partnership. In addition, Employee is
a limited partner in Highpoint Holdings, Ltd.. The property is furthermore
managed by CSA Management, Inc., a company which is partially owned by Employee.
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