1
EXHIBIT 10.13
EMPLOYMENT AND NONCOMPETITION AGREEMENT
(Xxxxxx X. Xxxxxx)
THIS EMPLOYMENT AND NONCOMPETITION AGREEMENT ("Agreement") is entered into to be
effective March 26, 1998 ("Effective Date"), between U.S. ONLINE COMMUNICATIONS,
L.L.C., a Washington limited liability company ("Company") and XXXXXX X. XXXXXX
("Employee"). U.S. OnLine Communications, Inc., a Delaware corporation (the
"Corporation") is also executing this Agreement to confirm that it will be bound
by the terms and conditions contained herein upon the closing of the Asset Sale
(as defined below).
WHEREAS, the Company has requested Employee to serve as, and Employee
has agreed to serve as, the President and Chief Financial Officer ("CFO") of the
Company; and
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.
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 and as the Company's President and CFO. Employee may
also be elected to the Company's Board of Managers, and, in the sole discretion
of the Board of Managers, may be elected to the board of, and/or be appointed as
an executive officer of, affiliates and subsidiaries of the Company (including
U.S. On-Line Cable, L.L.C.), without the necessity for an amendment,
modification to or additional compensation under this Agreement.
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 Managers and the Chief Executive Officer
("CEO") of the Company in their reasonable discretion.
i. Corporate Development. Employee will be responsible for
assisting the CEO 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 CEO in streamlining and strengthening the
Company's systems and procedures, including systems and procedures for
processing of material information, completing organizational charts and job
descriptions, and human resource procedures.
iii. Finance. Employee will be responsible for assisting the CEO
in identifying and procuring new sources of capital and credit.
iv. Development of General Managers. Employee will be responsible
for assisting the CEO and other Company officers/managers in hiring, managing,
training and developing General Managers for the Company's affiliates, markets
or divisions.
v. Sales/Marketing. Employee will be responsible for: (a)
assisting the Vice President of Sales in meeting sales quotas; (b) assisting the
CEO and Vice President of Sales in drafting and implementing strategy; (c)
drafting and implementing budgets; (d) assisting in locating and executing
2
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 the Company's subscribers.
vi. Customer Service Bureau. Employee will be responsible for
assisting the CEO, Vice President 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.
vii. Other Duties. Employee shall perform such other duties as
the Board of Managers and the CEO may from time to time prescribe.
c. Extent of Services.
i. Except as provided in this Agreement or otherwise permitted by
the Board of Managers of the Company, Employee shall devote his full time,
attention and energies to the business of the 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 Managers of the Company (other than Employee if he is
serving as a manager): (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. Term of Employment.
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 (A) by reason of Employee's dishonesty
towards, fraud upon, or deliberate injury or attempted injury to, Company, or
(B) by reason of Employee's material breach of this Agreement which breach
remains uncured thirty (30) days after written notice of such material breach.
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 by
reason of material breach of this Agreement by Company; such termination shall
only be effective if Company has failed to cure such material breach within
thirty 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."
3
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 thirty-five percent (35%)
or more of Company's outstanding securities, or (B) a sale of all or
substantially all of the assets of the Company. Neither the Asset Sale nor the
IPO shall constitute a Change In Control.
b. Initial Term. The term of employment of Employee by Company shall be
for a period of three (3) years and ten (10) days beginning with the Effective
Date ("Initial Term"), unless terminated earlier pursuant to this Section 2. At
any time prior to the expiration of the Initial Term, Company and Employee may
by mutual written agreement extend Employee's employment under the terms of this
Agreement for such additional periods as they may agree. If Employee's
employment by the Company continues after the expiration of the 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 Termination For Cause and shall be effected by written
notification to Employee. Upon 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 any
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.b, 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 Managers of
Company, has failed to perform his duties under this Agreement on account of
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
4
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 Asset Sale (as defined
below), upon the closing of the IPO, nor upon the exercise of any warrants or
options granted to parties prior to or simultaneous with the IPO.
i. Notice of Termination. Other than a Termination For Cause, Company
may effect a termination of this Agreement 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.
Employee may effect a termination of this Agreement pursuant to the provisions
of this Section 2 upon
5
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 $125,000 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
Managers. The Corporation (as defined below) contemplates that it will cause an
initial public offering of the Corporation's securities to be completed after
the Asset Sale and on or before August 15, 1998 (the "IPO"). Notwithstanding the
foregoing, Employee has agreed to be paid a reduced Base Salary of $100,000 per
annum until the effective date of the IPO.
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
Managers, 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 Managers at the beginning of the calendar year. The Board of Managers
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
1998 bonus will be based on factors to be established by the Board of Managers
and provided to Employee.
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. Assignment to Corporation. The Company and Employee currently
contemplate that the Company will sell all or substantially all of its assets
(the "Asset Sale") to the Corporation. If the Asset Sale occurs, the Company
shall as a condition precedent to the Asset Sale, (i) require that the Company's
rights and obligations under this Agreement be assigned to the Corporation, and
(ii) that the Corporation assume all of the Company's obligations and
liabilities under this Agreement. Employee hereby consents to the assignment of
this Agreement to the Corporation upon the closing of the Asset Sale.
4. Severance Compensation.
x. Xxxxxxxxx Compensation in the Event of a Termination Upon a Change in
Control. In the event Employee's employment is terminated in a Termination Upon
a Change in Control, Employee
6
shall be paid as severance compensation his Base Salary (at the rate payable at
the time of such termination), for a period of the lesser of the remaining
portion of the Initial Term or twelve (12) 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, 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. Employee shall also be entitled to an accelerated vesting of any awards
granted to Employee under the Company's stock 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 twelve (12) 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.
x. Xxxxxxxxx Compensation in the Event of a Termination Other Than for
Cause. In the event Employee's employment is terminated 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 the
lesser of the remaining portion of the Initial Term or twelve (12) months from
the date of such termination. Employee is under no obligation to mitigate the
amount owed Employee pursuant to this Section 4.b by seeking other employment or
otherwise. Employee shall also be entitled to an accelerated vesting of any
awards granted to Employee under the Company's stock 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 twelve (12) 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.
c. No Severance Compensation Upon Other Termination. In the event of a
Voluntary Termination, Termination For Cause, termination by reason of
Employee's disability pursuant to Section 2.e, or termination by reason of
Employee's death pursuant to Section 2.f, Employee or his estate shall not be
paid any severance compensation.
d. 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
7
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.
7. Noncompetition and Confidentiality.
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 Managers 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 during Employee's employment hereunder to terminate or
rescind its business or contractual relationship with the Company;
ii. solicit for employment any employee of the Company or attempt
to persuade or entice any such employee to terminate his or her employment with
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 at any
time during Employee's employment hereunder.
The restrictions contained in this Section 6.b shall not thereafter apply 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.
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
8
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
Agreement except as otherwise indicated in Section 6.b.
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)
9
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:
U.S. OnLine
Attn: Mr. Xxx Xxxxxxx, CEO
0000 Xxxxx Xxxxx Xxxx.
Xxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
With a copy to:
Xxxxx, Martens & Xxxxxx, L.L.P.
Attn: Xx. Xxxxx X. Xxxxx
0000 X. XxXxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
If to Employee:
Xx. Xxxxxx X. Xxxxxx
------------------------
Austin, Texas _____________
Facsimile: (512) ____-______
9. Miscellaneous.
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; provided,
however, the Company shall assign this Agreement to the Corporation upon the
closing of the Asset Sale, and (i) all references herein to the Company shall
thereafter mean the Corporation, and (ii) all references herein to the Board of
Managers shall thereafter mean the Board of Directors of the Corporation.
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. Any and all prior discussions, negotiations,
commitments and understandings related thereto are merged herein.
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.
10
g. Survival of Terms. The applicable provisions of Sections 2, 4, 5, 6,
7 , 8, and 9 shall survive any termination of this Agreement.
11
IN WITNESS WHEREOF, the Company and Employee have executed this Agreement to be
effective as of the date first above written.
COMPANY:
U.S. OnLine Communications, L.L.C.
By: ________________________________
Xxxx Xxxxxx, Manager
Date Signed: _________________________
By: ________________________________
Xxxxxx X. Xxxxxxx, CEO
Date Signed: _________________________
EMPLOYEE:
------------------------------------
Xxxxxx X. Xxxxxx
Date Signed: _________________________
CORPORATION
U.S. OnLine Communications, Inc.
By: ________________________________
Print Name:__________________________
Print Title:___________________________
Date Signed: _________________________
(The Corporation is signing this
Agreement for the purpose of agreeing to
be bound by the terms and conditions
contained herein upon the closing of the
Asset Sale)
