1999
POINTE COMMUNICATIONS CORPORATION
1999 EXECUTIVE MARKET VALUE APPRECIATION STOCK OPTION AGREEMENT
THIS OPTION AGREEMENT is entered into by and between Pointe Communications
Corporation (the "Company" ) and _________ (the "Optionee") in accordance with
the terms and conditions of the 1999 Executive Market Value Appreciation Stock
Option Plan adopted by the Company (the "Plan"), a copy of which is on file at
the principal office of the Company.
The Company and the Optionee hereby agree as follows:
1. OPTION OF SHARES. Subject to the terms and conditions hereof, the
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Optionee shall have the right from the date hereof through the term hereof to
purchase up to _______ shares of the $.00001 par value common stock of the
Company (such ______ shares hereinafter referred to as the "Optioned Shares" and
this option hereinafter referred to as the "Option"). The number of Optioned
Shares which may be purchased by Optionee hereunder are referred to as "Vested
Optioned Shares."
2. OPTION PRICE. The price per share for each of the Optioned Shares to be
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paid by the Optionee shall be $1.40 per share (hereinafter referred to as the
"Option Price"), such Option Price having been determined in accordance with the
Plan.
3. EXERCISE AND TERM OF OPTION. This Option may be exercised only by
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delivery by the Optionee to the Company or the Company's delegate of written
notice of exercise executed by the Optionee on the exercise form set forth as
Exhibit A attached hereto and made a part hereof, which exercise form shall
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identify this Option, together with the number of Vested Optioned Shares with
respect to which the Optionee is exercising the Option; in addition, upon
exercise, Optionee shall execute and deliver the agreements referenced in
Sections 3 and 4 of Exhibit B hereto. Notwithstanding any provisions herein to
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the contrary, the determination of Vested Optioned Shares which can be purchased
at any time by the Optionee shall be as set forth in Exhibit B attached hereto
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and made a part hereof. In addition, this Option shall not be exercisable
either in whole or in part (and the Option shall become null and void) after
whichever of the following first occurs:
(i) January 31, 2009;
(ii) if the Optionee was not, at all times during the period beginning
on the date hereof and ending on the date three (3) months before the proposed
date of exercise of this Option, in Continuous Status as an Employee; except if
such cessation of Continuous Status as an Employee was caused by the death of
the Optionee, in which case such period shall end on the date six (6) months
following the date of death, and except if such cessation of Continuous Status
as an Employee occurred before the Option otherwise expired and was as a result
of the total and permanent disability of the Optionee as defined in the Plan, in
which case, such period shall end on the date twelve (12) months from the date
of Optionee's cessation in Continuous Status as an Employee by reason of such
disability; or
(iii) the violation by the Optionee of the terms of that certain
Non-competition Agreement of even date herewith between the Optionee and the
Company; or
(iv) the effective date of the liquidation or dissolution of the
Company.
4. OPTION NON-TRANSFERABLE. During the lifetime of the Optionee, this
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Option shall be exercisable only by the Optionee and shall not be assignable or
transferable by the Optionee and, subject to Paragraph 5 below, no other person
shall acquire any rights in this Option.
5. DEATH OF OPTIONEE AND TRANSFER OF OPTION. In the event of the death of
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the Optionee, the unexercised portion of this Option owned by the deceased
Optionee shall be exercisable to the extent provided in Paragraph 3 by the
executors or administrators of the estate of the Optionee or by any person or
persons who shall have acquired the Option directly from the Optionee by bequest
or inheritance. Such exercise shall be effected in accordance with the terms
set forth in Paragraph 3 as if such executor, administrator or legatee was the
Optionee herein. This Option shall not be transferable by the Optionee otherwise
than by will or by the laws of descent and distribution.
6. MEDIUM AND TIME OF PAYMENT. The Option Price shall be payable by the
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Optionee (or his successors in accordance with Paragraph 5 above) in cash, or
otherwise in the manner set forth in Exhibit A hereto.
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7. DELIVERY OF STOCK CERTIFICATES. Except as provided in Exhibit B or
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Exhibit C, as promptly as practicable after the receipt by the Company of full
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payment for Vested Optioned Shares which have been properly exercised, the
Company shall deliver to the Optionee a stock certificate representing the stock
of the Company so purchased.
8. STATUS OF OPTION. This Option is intended to be an Incentive Stock
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Option.
9. OTHER TERMS AND CONDITIONS. In addition to the terms and conditions set
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forth herein, this Option is subject to and governed by the other terms and
conditions set forth in the Plan, which other terms and conditions are hereby
incorporated by reference. In the case of express conflict, the provisions of
this Option Agreement shall govern.
IN WITNESS WHEREOF, the parties hereto have executed this Option Agreement
as of this ___ day of __________, 1999.
COMPANY:
POINTE COMMUNICATIONS CORPORATION
By:_____________________________________
Title:____________________________________
[CORPORATE SEAL]
OPTIONEE:
_______________________________________
Name:
EXHIBIT A
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NOTICE OF EXERCISEOF EXERCISE
The undersigned Optionee hereby exercises his option to purchase __________
Vested Optioned Shares subject to the Option Agreement between Pointe
Communications Corporation and the undersigned Optionee dated
____________________. The undersigned Optionee hereby delivers, together with
this written statement of exercise, payment (by cash, check or wire transfer) of
the full Option Price multiplied by the exercised Vested Optioned Shares;
provided, however, if Optionees Continuous Status as an Employee has
terminated, and all or a portion of the Vested Optioned Shares are to be finally
determined at the Valuation Date occurring at December 31 of this calendar year,
Optionee has also delivered, together with this statement of exercise, a
promissory note in the form attached hereto, obligating Optionee to make payment
in full of the Option Price for such Vested Optioned Shares in accordance with
such promissory note.
(OPTIONEE'S INITIALS)
_______
If Optionee has initialed this paragraph, Optionee shall have elected a
"cashless" exercise to purchase the number of Vested Optioned Shares set forth
above, and Optionee hereby authorizes and directs the Company to withhold from
the issuance that number of Vested Optioned Shares which, when multiplied by the
Market Price per share of the Vested Optioned Shares on the date hereof, is
equal to the Option Price multiplied by the exercised Vested Optioned Shares
(and such withheld Vested Optioned Shares shall no longer be issuable pursuant
to this Option). For purposes hereof, "Market Price" shall have the meaning set
forth on the second page of this Exhibit A.
This _____ day of _______________, _____.
OPTIONEE:
____________________________________
______________ hereby acknowledges receipt of the above notice of exercise
and payment of the Option Price (and/or receipt of the promissory note, as the
case may be), this _____ day of _______________, _____.
POINTE COMMUNICATIONS CORPORATION
By:_________________________________
Title:_______________________________
[CORPORATE SEAL]
EXHIBIT A (Page 2)
EXHIBIT A (Page 2)
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"Market Price" means the average of the closing prices of the Company's
common stock on all domestic securities exchanges on which it may be at the time
listed or, if there have been no sales on any such exchange on any day, the
average of the highest bid and lowest asked prices on all such exchanges at the
end of such day or, if on any day such security is not so listed, the average of
the representative bid and asked prices quoted in the NASDAQ System as of 4:00
p.m., New York time, on such day or, if on any such day such security is not
quoted in the NASDAQ System, the average of the highest bid and lowest asked
prices on such day in the domestic over-the-counter market as reported by the
National Quotation Bureau, Incorporated, or any similar successor organization,
in each such case averaged over a period of twenty-one (21) days consisting of
the day as of which "Market Price" is being determined and the twenty (20)
consecutive business days prior to such day; provided that if such securities
are listed on any domestic securities exchange, the term "business days" as used
in this sentence means business days on which such exchange is open for trading.
If at any time such security is not listed on any domestic securities exchange
or quoted in the NASDAQ System or the domestic over-the-counter market, the
"Market Price" shall be the fair market value thereof determined conclusively by
the Committee appointed by the Company to administer the Plan.
EXHIBIT B
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DETERMINATION OF VESTED OPTIONED SHARES
The Option may be exercised with respect to the Vested Optioned Shares existing
as of the Valuation Date immediately preceding the date of exercise of the
Option and, if the Optionee's Continuous Status as an Employee has terminated,
the Option may also be exercised with respect to any Contingent Options which
become Vested Optioned Shares as of the Valuation Date falling on December 31 of
the calendar year in which such Continuous Status as an Employee terminates.
The annual valuation date ("Valuation Date") shall be December 31 of each year,
with the stock value being determined as of the Valuation Date by an average of
the closing prices for the ten (10) business days prior to and subsequent to the
Valuation Date. Each year, if the value of the stock as of the Valuation Date
is greater than the highest stock value for all prior Valuation Dates (such
increase being referred to as the "Current Increase"), Optionee shall as of such
Valuation Date become vested in his options based on such Current Increase at
the rate of five percent (5%) of the options for each $1.00 of Current Increase
(such vested shares herein referred to as "Vested Optioned Shares") and as of
such Valuation Date Optionee shall also become contingently vested in an equal
number of options ("Contingent Options"); the Contingent Options shall
thereafter become Vested Optioned Shares at the next Valuation Date at which the
stock value is equal to or greater than the value at the current Valuation Date.
This vesting schedule can be illustrated with the following example:
Date of Grant 12/31/99 12/31/00 12/31/01 12/31/02 12/31/03
of Options End of Year 1 End of Year 2 End of Year 3 End of Year 4 End of Year 5
-------------- --------------- --------------- ------------------ ------------------ --------------------
Stock Value
1.00 $ 3.00 $ 2.00 $ 4.00 $ 5.00 $ 5.00
-------------- --------------- --------------- ------------------ ------------------ --------------------
3-1=2 no change 4-3=1 5-4=1 5-5=0
2x5%=10% 1x5%=5% 1X5%=5% 0 X 5%=0%
Year 1 Vested Year 3 Vested Year 4 Vested No year 5 Vested
Optioned =10% Optioned = 5% Optioned = 5% Optioned Shares or
Shares Shares Shares Contingent Options
Year 1 Year 3 Year 4
Contingent Contingent Contingent
Options = 10% Options = 5% Options = 5%
Prior Contingent Prior Contingent Prior Contingent
Options Becoming Options Becoming Options Becoming
Vested Optioned Vested Optioned Vested Optioned
Shares = 10% Shares = 5% Shares = 5%
TOTAL VESTED TOTAL VESTED TOTAL VESTED TOTAL VESTED TOTAL VESTED
OPTIONED=10% OPTIONED=10% OPTIONED=25% OPTIONED=35% OPTIONED=40%
SHARES SHARES SHARES SHARES SHARES
Using the above example, an Optionee with a total of 50,000 shares subject
to his Option would have the number of Vested Optioned Shares at the times set
forth below:
End of End of End of End of End of
Year 1 Year 2 Year 3 Year 4 Year 5
------ ------ ------ ------ ------
5,000 5,000 12,500 17,500 20,000
As a further example, if such Optionee's Continuous Status as an Employee
terminates on June 1, 2001 prior to exercising any of his Option, subject to the
other terms herein regarding exercise of the Option subsequent to termination of
employment, such Optionee may after such termination timely exercise his Option
with respect to the 5,000 Vested Optioned Shares which would exist as of the
December 31, 2000 Valuation Date plus the 5,000 Contingent Options which would
become Vested Optioned Shares as of the December 31, 2001 Valuation Date; in
such a case, such Optionee would pay the Option Price upon exercise for the
5,000 Optioned Shares which are Vested Optioned Shares upon the date of
exercise, and Optionee would execute and deliver a promissory note in accordance
with Exhibit A to the Option Agreement for the 5,000 Contingent Options which
may become Vested Optioned Shares as of the December 31, 2001 Valuation Date.
In addition to the foregoing calculation, all Optioned Shares which have
not become Vested Optioned Shares pursuant to the foregoing formula shall, on a
pro rata basis (equally over three years), become Vested Optioned Shares upon
the Valuation Dates at the end of years eight, nine and ten of the Option
(December 31, 2006, December 31, 2007 and December 31, 2008, respectively).
2. Notwithstanding the foregoing vesting schedule, if Optionee's
Continuous Status as an Employee has not terminated at the time of a Change of
Control (as defined below), then upon a Change of Control, all Optioned Shares
shall thereupon become Vested Optioned Shares. For purposes of this paragraph,
a "Change of Control" shall be deemed to have occurred if there is a Control
Transaction (as defined below) that results in a new Group of shareholders of
the Company directly or indirectly owning more than fifty percent (50%) of the
total number of outstanding shares entitled to vote of the Company. As used
herein, "Control Transaction" shall mean (i) any tender offer for or acquisition
of capital stock of the Company or (ii) any merger, consolidation, or sale of
all or substantially all of the assets of the Company, but expressly excludes
any transaction with Pensat or affiliates thereof or any public offering of
capital stock by the Company. As used herein, "Group" shall mean persons who
act in concert as described in Sections 13(d)(3) and/or 14(d)(2) of the
Securities Exchange Act of 1934, as amended.
3. As an absolute condition to exercise, Optionee shall execute and
deliver (in form acceptable to the Company) the Agreement Concerning Shares in
substantially the form attached to the Option as Exhibit C.
4. As an absolute condition to exercise, Optionee shall execute and
deliver a binding written release, in form satisfactory to the Company,
releasing any and all claims of any kind or nature relating to the employment
relationship (including claims for wrongful termination or discrimination of any
kind) that Optionee may have against the Company and/or its officers, agents,
employees, directors and shareholders.
5. Notwithstanding any provision in the Plan or Option Agreement to the
contrary if Optionee is terminated for Cause, Optionee shall forfeit the right
to exercise the Option in its entirety as to all Optioned Shares, whether or not
they are Vested Optioned Shares at that time. As used herein, "Cause" means (1)
egregious and willful misconduct by Optionee in connection with his employment,
including without limitation, dishonesty or the continued intentional abuse of
the Company's customers or employees, or (2) final conviction of a felonious
crime, or (3) repeated instances of drug or alcohol abuse or unauthorized
absences during scheduled work hours, or (4) repeated material failure to meet
reasonable performance criteria as established by the Company and communicated
by the Company to Optionee in writing which Optionee fails to cure within ninety
(90) days.
6. If this Option is an Incentive Stock Option, the provisions of this
Exhibit B are intended to be construed as conditions to the exercise of this
Option and not as conditions to the grant of this Option.
EXHIBIT C
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AGREEMENT CONCERNING SHARES
In consideration of the issuance to me of shares of common stock of Pointe
Communications Corporation., a Nevada corporation (the "Company"), and other
good and valuable consideration, the receipt and sufficiency of which I hereby
acknowledge and accept, I hereby agree as follows:
1. COVERED SHARES. This agreement applies to the shares of common
stock of the Company set forth opposite my signature below and to any additional
shares of stock of the Company (of any class) that I or my successors in
interest may acquire hereafter.
2. SECURITIES LAW MATTERS. I represent and warrant to the Company and
its officers and directors that:
- I am a resident of ____________________ and no other state.
- I am acquiring the shares for my own account to hold for investment,
with no present intention of dividing my participation with others or
reselling or participating, directly or indirectly, in a distribution
of the shares, and I will not sell, transfer or otherwise sell the
shares in violation of applicable state or federal securities laws.
- The Company has made available to me, prior to the date hereof, the
opportunity to ask questions of and receive answers concerning all
aspects of the Company and to obtain any additional information
relating to the Company and the shares that the Company possesses or
that the Company could acquire without unreasonable effort or expense;
and all such materials and information that I have requested have been
made available to me and have been examined by me.
- I have been represented by such financial, legal, and other
professional advisors (each of whom has been selected by me), if any,
as I have found necessary to consult concerning the shares and this
agreement. I and such advisors (if any) have sufficient knowledge and
experience in business and financial matters to evaluate the Company
and the shares and the merits and risks of this investment in the
Company and to protect my own interests in connection with this
agreement, without need for the additional information that would be
required to be included in registration statements under federal or
state securities laws. I am capable of bearing the economic risk of
this investment, and my circumstances are such that my financial
condition, well being and lifestyle would not be materially adversely
affected if I were to suffer a partial or total loss of my investment
in the Company.
- Without limiting the generality of the foregoing, I understand that as
the owner of a minority interest in the Company, I will lack voting
control over decisions relating to the Company and its affairs.
I understand that the shares have not been registered under state or federal
securities laws, in reliance on the exemptions authorized by Sections 10-5-9(9)
and 10-5-9(13) of the Georgia Securities Act of 1973, as amended, Section 4(2)
of the federal Securities Act of 1933, as amended, and exemptive provisions of
any other applicable federal or state securities laws. I understand and agree
that stop-transfer instructions will be noted on the appropriate records of the
Company and that there will be placed on any certificates for the shares a
legend stating in substance:
These securities have not been registered under the federal Securities Act of
1933 (the "1933 Act") or the securities laws of any state. These securities
have been issued or sold in reliance on the exemptions from registration
contained in Sections 10-5-9(9) and 10-5-9(13) of the Georgia Securities Act of
1973, as amended, Section 4(2) of the 1933 Act, and exemptive provisions of any
other applicable federal or state securities laws, and may not be sold or
transferred except in a transaction which is exempt under such Acts or laws or
pursuant to effective registrations under such Acts or laws.
3. RESTRICTION ON TRANSFER. No interest in, or any part of, the shares
may be sold, assigned, pledged, or otherwise transferred, voluntarily or
involuntarily, except as permitted by this agreement or as may be approved in
writing by the Company. Any attempt to transfer shares in violation of this
agreement is ineffective, and the shares shall remain subject to this agreement.
4. SALE SUBJECT TO RIGHT OF REFUSAL. I may transfer my shares if and
only if the following conditions are met (and provided that no shares may be
transferred to anyone who is ineligible to become a qualified shareholder under
any applicable provision of federal or state tax law that the Company has
adopted): (i) I must notify the Company in writing that I desire to sell my
shares pursuant to a bona fide offer from a third party, a certified copy of
which must be attached to the notice, and I must offer to sell the shares to the
Company upon terms identical to those of the bona fide offer; (ii) the Company
will then have the right to purchase the shares for 30 days after receiving the
notice; (iii) if the Company does not exercise the right of refusal within the
prescribed period, I may sell the shares pursuant to the bona fide offer,
provided the transferee agrees in writing to be bound by the restrictions of
this agreement and provided the sale is closed within 30 days after the
expiration of the foregoing right of refusal. To exercise its right of refusal
under this agreement, the Company must give written notice to me within the
prescribed period. The Company may assign its rights pursuant to this paragraph
to any person.
5. LEGEND. Upon the execution of this agreement (and in connection
with the issuance to me of any additional shares), the parties hereto shall
cause the certificates representing my shares to be endorsed substantially as
follows: "The transfer of these securities is restricted, and the securities
are subject to certain other restrictions, pursuant to an Agreement Concerning
Shares dated ___________, _____, a copy of which may be examined at the office
of the corporation."
6. MANDATORY SALE. If shareholders of the Company arrange to sell more
than a simple majority of shares in the Company of the same class as my shares
or arrange to sell all or substantially all of the assets of the Company, in
each case to a third party in a bona fide, arm's length sale, then these
shareholders may require me to sell all (or a corresponding amount proportionate
to the percentage these shareholders as a group are selling) of my shares to the
third party, or vote all of my shares in favor of the asset sale, at a price and
on terms and conditions no less favorable than those at which these shareholders
are selling or voting their shares. I expressly acknowledge and agree that the
other shareholders of the Company are intended third party beneficiaries of this
paragraph 6 and may directly enforce its provisions against me.
7. REPURCHASE OPTION. The Company shall have the option exercisable by
giving notice to me within six (6) months following my termination of Continuous
Status as an Employee (as defined in the TeleCommute Solutions Stock Option
Plan) to repurchase my shares at their fair market value. Fair market value
shall be determined by mutual agreement of the parties within ten (10) days
after receipt by me of the aforesaid notice; provided, however, if the parties
are not able to reach agreement within this ten-day period, then fair market
value will be determined by an experienced, independent appraiser selected by
the Company in good faith, the cost of which will be shared equally by the
Company and me. Any determination of fair market value pursuant to the
preceding sentence will be conclusive and binding on me. The Company shall
exercise its option by notifying me of such exercise in writing, within ten (10)
days of which the Company shall deliver certificates for such Shares, duly
endorsed in blank, free and clear of all liens and encumbrances, and the Company
shall concurrently deliver payment therefor; provided, however, if fair market
value is determined by appraisal, the deliveries will occur within five (5) days
after I receive notice of the appraised value. If I fail to so deliver such
certificates, the Company may cancel such shares of record and deposit payment
into escrow, for release to me pending delivery of the endorsed share
certificates.
8. DEPOSIT OF SHARES. For so long as my shares are subject to this
agreement, I agree to deposit the certificates representing same with counsel
designated by the Company to hold for my benefit subject to the terms hereof.
9. NOTICES. Whenever this agreement provides that notice is to be
given, the notice shall be in writing and, in the case of notice to the Company,
shall be deemed given when received by the Company's President, and in the case
of notice to me or to another shareholder, shall be deemed given when received
or, if mailed by U.S. mail, postage prepaid, addressed to the person at the
person's address then appearing on the Company's records, on the third calendar
day after the date the notice is deposited in the mail.
10. MISCELLANEOUS. The provisions of Sections 3, 4, 6, 7 and 8 hereof
shall be applicable only for so long as the Company's shares of common stock are
not traded on a national or regional stock exchange. This agreement shall be
governed by and construed in accordance with the laws of the State of Georgia.
This agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and supersedes any and all prior agreements
and understandings (between me and any of the Company and its other
shareholders) with respect to the subject matter hereof. This agreement may be
modified only by a written instrument signed by all parties. In connection with
any sale or surrender of shares to the Company or another purchaser pursuant to
this agreement, I shall endorse and deliver the certificates for the shares, and
both the Company (by signing below) and I agree to execute such other documents
as may reasonably be required to carry out this agreement. When used herein, if
required by the context, the masculine, feminine, or neuter gender shall include
the other two genders, and the singular shall include the plural and vice versa.
The section headings and any other captions set forth herein are for convenience
of reference only and shall not be used in interpreting this agreement. If any
action at law or in equity is necessary to enforce the terms of this agreement,
the prevailing party shall be entitled to reasonable attorneys' fees, costs, and
necessary disbursements in addition to any other relief to which such party may
be entitled. This agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original and all of which together shall
constitute but one and the same instrument.
Executed effective as of May 17, 1999.
Signature, Name
and Address:
-
Pointe Communications Corporation
By:________________________________
Title:_____________________________
EXHIBIT D
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NONCOMPETITION AGREEMENT
AGREEMENT entered into as of the ____ day of __________, _____, between
Pointe Communications Corporation, a Nevada corporation ("Employer"), and
________________________ ("Employee").
Employer is in the business of providing services and solutions in the
telecommuting industry (the "Business"). Employee currently is, or at the time
of his termination was, employed by Employer as _________________________ of
Employer (the "Capacity").
To protect Employer's legitimate interests, Employer and Employee find it
necessary and appropriate to restrict competition and certain other activities
by Employee, on the terms and conditions hereinafter set forth.
NOW, THEREFORE, for and in consideration of the issuance of Employer stock
to Employee as compensation, the premises, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged and
accepted by Employee, Employee agrees with Employer as follows:
1. USE AND DISCLOSURE OF CONFIDENTIAL INFORMATION. During the period
of two (2) years after Employee's employment has terminated for any reason
whatsoever (or, in the case of trade secrets, for so long as the information in
question remains a trade secret) and during any period Employee is employed by
Employer hereafter, Employee shall not, without the prior written consent of
Employer, directly or indirectly, divulge, disclose or publish to any person or
entity, or reproduce or use in any way, except only as required for the benefit
of Employer, any Confidential Information (as defined herein). Upon Employer's
request and, in any event, upon the termination of Employee's employment with
Employer for any reason whatsoever, Employee shall immediately return any
reproductions of Confidential Information to Employer. For purposes of this
Agreement, "Confidential Information" means any trade secrets and any
information relating to Employer's business that is competitively sensitive and
not generally known by the public, including processes, policies, procedures,
techniques, designs, drawings, know-how, show-how, technical information,
technology, specifications, products, computer programs (including computer
programs developed, improved or modified by Employee for or on behalf of
Employer for use in Employer's business), algorithms, systems, methods of
operation, order entry forms, price lists, customer lists, customer information,
solicitation leads, marketing research data, marketing and advertising materials
and methods and manuals and forms, all of which pertain to the Business.
Confidential Information does not include any information which (i) is available
in published print or otherwise known to the public, unless published or made
known as a result of acts or omissions of Employee, or (ii) is lawfully obtained
by Employee in writing from a third party who did not acquire such confidential
information or trade secret, directly or indirectly, from Employee or Employer.
2. COMPETITION. During the period of eighteen (18) months after
Employee's employment has terminated for any reason whatsoever and during any
period Employee is employed by Employer hereafter, Employee shall not, directly
or indirectly, for himself or on behalf of or in conjunction with any other
person, firm or entity (except on behalf of Employer)--
H:\ACCOUNTI\OPTION PLANS\EXECAGREE99.DOC
(a) Engage in the Business, in the same Capacity as Employee has
been employed by Employer, anywhere within ________________________________
________________________________________________________________________________
__________ (the "Territory"), provided that, if Employee's employment with
Employer is ended, the prohibition of this Section 2(a) applies only to the
locations within such Territory where Employee actually was working during the
six months immediately preceding the time Employee's employment with Employer
ended;
(b) Initiate any action to solicit in competition with the
Business of Employer or to divert or attempt to divert from Employer the
Business of any person, firm or entity for which Employer provided services in
connection with the Business at any time during the period of twenty-four (24)
months immediately preceding the time of such solicitation, diversion or attempt
to divert and with whom Employee had material contact in the course of
Employee's employment with Employer; or
(c) Initiate any action to hire for any other employer any
employee of the Employer or directly or indirectly cause any employee of the
Employer to leave his employment in order to work for another.
3. REPURCHASE OPTION. If Employee breaches his obligations under
Section 2 hereof, Employer shall have the option to repurchase any and all
shares acquired by Employee pursuant to the TeleCommute Solutions Stock Option
Plan (the "Plan") at a purchase price equal to Employee's Option Price
thereunder. Employer shall exercise its option by notifying Employee of such
exercise in writing, within ten (10) days of which Employee shall deliver
certificates for such shares, duly endorsed in blank, free and clear of all
liens and encumbrances, and Employer shall concurrently deliver payment
therefor. If Employee fails to so deliver such certificates, Employer may
cancel such shares of record and deposit payment into escrow, for release to
Employee pending delivery of the endorsed share certificates.
4. INJUNCTION. As any breach by Employee of any of the covenants
contained in this Agreement would result in irreparable injury to Employer, and
as the damages arising out of any such breach would be difficult to ascertain,
Employee agrees that, in addition to all other remedies provided by law or in
equity, Employer shall be entitled to an injunction against any such breach,
whether actual or contemplated.
5. SETOFF. Employer shall be entitled to set off against any
compensation, commissions and other payments of any kind owed to Employee any
amounts owing to Employer as a result of a breach of this Agreement or
otherwise.
6. MODIFICATION. Should any provision of this Agreement be declared
unenforceable by a court of competent jurisdiction, the parties request that
such court modify such provision in a manner consistent with the intent of this
Agreement so that it shall be enforceable as modified to the greatest extent, in
the largest territory, and for the longest duration as may be permitted by law.
7. SEVERABILITY. If any provision of this Agreement shall for any
reason be held illegal or unenforceable, such provision shall be deemed
severable from the remaining provisions of this Agreement and shall in no way
affect or impair the validity or enforceability of the remaining provisions of
this Agreement.
8. CUMULATIVE RIGHTS. Any rights and remedies of Employer pursuant to
this Agreement shall be in addition to and cumulative of, and shall in no way
limit or supersede, any other rights and remedies Employer may have under law or
in equity or pursuant to any other agreement with Employee.
9. MISCELLANEOUS. As to the subject matter hereof, this Agreement
supersedes any and all other agreements, either oral or in writing, between the
parties hereto and constitutes the entire agreement between the parties. Any
modification of this Agreement will be effective only if it is in writing signed
by the party to be charged. Failure or delay of either party to insist upon
compliance with any provision hereof will not operate and is not to be construed
as a waiver or amendment of the provision or the right of the aggrieved party to
insist upon compliance with such provision or to take remedial steps to recover
damages or other relief for noncompliance. Any express waiver of any provision
of this Agreement will not operate and is not to be construed as a waiver of any
subsequent breach, whether occurring under similar or dissimilar circumstances.
This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their successors, assigns, heirs, executors and personal
representatives, but neither this Agreement nor any rights hereunder shall be
assignable by Employee. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled. The captions
set forth herein are for convenience of reference only and shall not be used in
interpreting this Agreement. "Including" means including without limitation.
This Agreement shall be governed by and construed in accordance with the laws of
the State of Georgia.
EXECUTED as of the date first above written.
EMPLOYEE:
Name: __________________________________________
EMPLOYER:
Pointe Communications Corporation
By:______________________________________________
Name:____________________________________________
Title:___________________________________________
