EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement"), dated as of January 1, 1999, is
made by and between DESTIA COMMUNICATIONS, INC., a Delaware corporation, having
its principal office at 00 Xxxxx 00 Xxxxx, Xxxxxxx, Xxx Xxxxxx 00000 ("Destia")
and Xx. Xxxxxxx Xxxxxxx ("Executive").
WHEREAS, Destia desires to employ Executive and Executive desires to
provide services to Destia;
NOW, THEREFORE, in consideration of the premises and of the other mutual
covenants and conditions contained herein and for other good and valuable
consideration, the sufficiency and receipt of which are hereby acknowledged,
Destia and Executive agree as follows:
SECTION 1. Employment and Term. (a) Destia hereby employs Executive
commencing as of the date hereof (the "Commencement Date"). The initial term of
Executive's employment shall be two years, subject to earlier termination as
specified herein (the "Employment Term"). Any renewal or extension of the
Employment Term and this Agreement shall be subject to the mutual agreement of
Executive and Destia, subject to Section 8 hereof.
(b) Executive shall be employed as a Senior Vice President and General
Counsel of Destia, with powers and duties consistent with such position, for the
duration of the Employment Term. During the term of Executive's employment by
Destia, Executive shall report to the President of Destia.
(c) Executive shall be employed at the headquarters of Destia in the New
York metropolitan area.
SECTION 2. Full-Time Employment. (a) During Executive's employment by
Destia, Executive shall devote Executive's entire business time, energy and
skill to the performance of Executive's duties hereunder and to the business of
Destia. Executive shall faithfully and diligently perform such duties, shall
adhere to the instructions of the Chief Executive Officer, President and Board
of Directors of Destia and shall use his best efforts to promote the interests
of Destia consistent with the foregoing. Executive shall adhere to all corporate
policies of Destia and, to the extent applicable to Executive's duties
hereunder, Destia's subsidiaries and affiliates. Executive shall not, directly
or indirectly, alone or as a member of any partnership, or as an officer,
director or executive of any other corporation, partnership or other
organization, be actively engaged in or concerned with any other duties or
pursuits which interfere with the performance of his duties hereunder, or which
may be inimical to or contrary to the best interests of Destia.
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(b) Executive represents and warrants that he is free to be employed by
Destia upon the terms contained in this Agreement and that he is not a party to
any employment contract or restrictive covenant or other arrangement which could
reasonably be expected to prevent, interfere with or hinder, or be deemed to be
breached by, full performance of his duties hereunder.
SECTION 3. Compensation. (a) Base Salary. For all services rendered by
Executive in any capacity during Executive's employment under this Agreement,
including, without limitation, service as an executive, officer, or member of
any committee of Destia or any of its subsidiaries or affiliates, Destia agrees
to pay or cause to be paid to Executive a base salary at the rate of not less
than $180,000 per annum, payable in equal installments in accordance with the
prevailing salary payment practices of Destia in effect from to time (the "Base
Salary"). Executive's Base Salary shall be subject to review and increase on an
annual basis based upon changes in Executive's performance, title, job
description or responsibilities. In the event that sickness or accident
disability payments under Destia's insurance programs shall become payable to
Executive in respect of any period of Executive's employment hereunder the
salary installment payable to Executive hereunder in respect of his Base Salary
on the next succeeding salary installment payment date shall be an amount
computed by subtracting (i) the amount of such disability payments which shall
have become payable during the period between such date, from (ii) the salary
installment otherwise payable to Executive hereunder in respect of his Base
Salary on such date.
(b) Bonus. Executive shall be entitled to receive an annual bonus payment
from Destia to be awarded and payable in accordance with Destia's bonus program
for senior executives. Executive's annual target bonus shall be 50% of
Executive's base salary. Destia's bonus program for senior executives shall
provide that Executive shall be entitled to a bonus payment in excess of such
amount for superior performance. Any bonus in excess of the aforementioned
amounts shall be paid at the sole discretion of the Board of Directors of Destia
and shall be made to the extent, at such time and in such amount as determined
by the Board of Directors of Destia in its sole discretion.
(c) Incentive Compensation. In addition to the other compensation
hereunder, the Company has granted to Executive in accordance with Destia's 1996
Flexible Incentive Plan (the "Plan"), certain options to acquire common stock of
Destia. The terms of the vesting and exercise of such options shall be governed
by the Incentive Stock Option Agreements entered into by Executive and Destia
and the terms of the Plan.
(d) Benefits. Executive shall be entitled to participate in medical,
dental, life insurance and other benefits (collectively, the "Benefits") in
accordance with the prevailing policies of Destia for executive employees.
SECTION 4. Vacation. Executive shall be entitled to an annual vacation of
three weeks (without deduction in salary or other compensation or Benefits).
Such vacation shall be taken at such time or times as may be convenient to the
operations of Destia and shall be consistent with the
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prevailing vacation policies of Destia. Within 10 days of the termination or
expiration of the Employment Term, any accrued but unused vacation earned by
Executive shall be paid to Executive at the rate of Executive's base salary at
the time of termination or expiration of the Employment Term.
SECTION 5. Reimbursement for Expenses. Executive is authorized to incur
reasonable and necessary traveling expenses and other reasonable and necessary
traveling expenses and other reasonable and necessary disbursements for or on
behalf of Destia in the performance of Executive's duties during Executive's
employment under this Agreement in accordance with Destia's prevailing expense
incurrence policies. Destia will reimburse Executive for all such expenses in
accordance with its prevailing expense reimbursement policies upon presentation
of a properly itemized account of such expenditures and the business reasons for
such expenditures. In addition, Executive shall be entitled to an additional
payment of $1000 per month for automotive, garage, insurance and related
expenses, together with a tax "gross-up" payment to cover any additional income,
medicare or other tax expense to Executive arising from the expense
reimbursements set forth in this Section 5.
SECTION 6. Termination of Employment By Destia. (a) Termination. Executive
shall be subject to dismissal from his position as an executive of Destia at any
time and with or without Cause. The effect of any termination of the employment
of Executive with Cause is set forth in Section 8(a) hereof. The effect of any
termination of the employment of Executive without Cause is set forth in Section
8(d) hereof.
(b) Definition of Cause. The term "Cause" shall be defined to include: (i)
any wilful breach by Executive of the performance of any of his duties pursuant
to this Agreement; (ii) any wilful breach by Executive of any other obligation
under this Agreement; (iii) any attempt by Executive to secure any personal
profit in connection with the business of Destia, other than as expressly
provided for in this Agreement; (iv) failure by Executive to devote sufficient
business time to the affairs of Destia; (v) material breach by Executive of any
of the representations or warranties contained in this Agreement; (vi)
activities of Executive inimical to the best interests of Destia; provided,
however, that such activities shall not include mistakes in business judgment
made in good faith; (vii) conviction of, or a plea of nolo contendere to, a
felony or any act of fraud, whether or not related to the affairs of Destia;
(viii) subject to Sections 6(c) and 6(d) below, death or disability of
Executive; and (ix) any other insubordination, dishonesty, moral turpitude or
other misconduct that, in the absence of any agreement in writing between the
parties hereto, would entitle Destia to terminate Executive's employment in
accordance with its prevailing employment policies; provided further, however,
that in the event of actions allegedly constituting Cause pursuant to clauses
(i), (ii), (iv), (v) or (vi) that are susceptible to cure, Destia shall provide
Executive with no less than thirty (30) days' notice of such deficiencies prior
to any termination as a result there of and during such prior notice period
shall afford Executive the opportunity to remedy such deficiencies to Destia's
reasonable satisfaction.
(c) Termination by Reason of Incapacity. In the event that Executive
suffers a disability which prevents him from substantially performing his duties
under this Agreement for a period of at
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least sixty (60) calendar days within a 365-calendar day period (whether
consecutive or non-consecutive) (a "Disability"), Destia shall have the right to
dismiss Executive upon ten (10) calendar days written notice. In the event of
any dispute between Destia and Executive as to whether Executive has suffered a
Disability, the determination of whether Executive has suffered a Disability
shall be made by an independent physician selected by Destia, and the decision
of such physician shall be binding upon Destia and Executive.
(d) Termination by Death. In the event Executive dies during the
Employment Term, this Agreement shall terminate automatically, such termination
to be effective on the date of Executive's death.
SECTION 7. Termination of Employment By Executive. The employment of
Executive under this Agreement shall be deemed to have been terminated by
Executive for "Good Reason" if Executive voluntarily terminates employment
following the occurrence of a material breach by Destia of any of its
obligations under this Agreement; provided, however, that Executive shall
provide written notice of such material breach within thirty (30) days after
Executive's discovery of such material breach and Destia shall have the
opportunity to cure such default within thirty (30) days after receipt of such
written notice. If Destia does not cure the default within such time, then
Executive's employment shall be deemed to have been terminated for Good Reason
by Executive, thirty (30) days after receipt of such written notice by Destia,
or such shorter period as Destia may elect. No resignation or other voluntary
termination by Executive other than pursuant to this Section 7 shall be deemed
under any circumstances to be a termination with Good Reason, a "constructive
termination" or otherwise not in breach of Executive's obligations under this
Agreement.
SECTION 8. Effect of Termination. (a) For Cause; Without Good Reason. In
the event of termination of this Agreement (x) by Destia for Cause (except by
reason of death or Disability) or (y) by Executive without Good Reason, Destia
shall pay to Executive within thirty (30) days of such termination any Base
Salary accrued but not paid to Executive prior to the date of such termination
and Executive shall be entitled to any Benefits which may then be due under any
of the benefit or other plans in which Executive is a participant. Executive
shall forfeit any right to any bonus not previously paid to Executive by Destia
and shall not be entitled to any further compensation or benefits hereunder
(including, without limitation, the Benefits). In addition, Executive shall
forfeit all unvested options held by Executive in accordance with the terms of
Executive's Incentive Stock Option Agreement.
(b) By Reason of Executive's Death. In the event of the termination of
this Agreement by reason of the death of the Executive, Destia (i) shall pay,
within sixty (60) days of death, Executive's legal representatives (A) any
unpaid salary installment in respect to Executive's Base Salary to the last day
of the month in which Executive's death occurs, and (B) any bonus previously
awarded but not yet paid to the Executive and (ii) shall continue to provide
(subject to any applicable eligibility criteria) any medical and dental benefits
comprising part of the Benefits (or comparable benefits) to the spouse and any
dependents of Executive at the time of Executive's
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death, for a period of twelve (12) months from the last day of the month in
which Executive's death occurs. In addition, all unvested options held by
Executive at the time of his death that are scheduled to vest within one (1)
year of Executive's death shall become immediately vested.
(c) By Reason of the Incapacity of the Executive. In the event of the
termination of this Agreement by reason of the Disability of the Executive,
Destia (i) shall pay the Executive (A) Executive's Base Salary to the last day
of the month in which such termination occurs and (B) any bonus previously
awarded but not yet paid to the Executive and (ii) shall continue to provide
(subject to any applicable eligibility criteria) any medical benefits comprising
part of the Benefits (or comparable benefits) to Executive, Executive's spouse
and any dependants of Executive who enjoyed such medical benefits at the time of
Executive's Disability, for a period of twelve (12) months from the last day of
the month in which such termination occurs. In addition, all unvested options
held by Executive at the time of his death that are scheduled to vest within one
(1) year of Executive's death shall become immediately vested.
(d) Without Cause; For Good Reason; Non-Renewal. In the event of (x)
termination of this Agreement (1) by Destia without Cause or (2) by Executive
for Good Reason or (y) the failure of Destia to make a binding offer to
Executive for a renewal of the Employment Term for at least one year on terms no
less favorable to Executive than the terms applicable to Executive's employment
immediately prior to the expiration of the Employment Term, Destia (i) shall pay
the Executive (A) Executive's Base Salary through the date of termination, in
accordance with its prevailing salary payment practices (as determined by Destia
in its sole discretion), (B) within 30 days of such termination, a severance
payment in the amount equal to one year's base salary at the time of termination
and (C) any bonus previously awarded to but not yet paid to Executive and (ii)
shall continue to provide Executive with Benefits (or comparable benefits),
including (subject to applicable eligibility criteria) medical benefits
comprising a portion of the Benefits (or comparable benefits) in respect of
Executive's spouse and any dependents of the Executive as of the date of such
termination, until one year following the date of termination. In addition, upon
any such termination in accordance with this Section 8(d), all options granted
to Executive in accordance with the terms of the Plan (or any comparable
incentive plan) shall become immediately vested and exercisable.
(e) Sole Remedy. Executive shall not be entitled to any form of severance
benefits, including, without limitation, benefits otherwise payable under any of
Destia's regular severance policies, other than those set forth herein. In
consideration of the compensation and benefits available hereunder, Executive,
except as otherwise expressly provided in this Agreement, unconditionally
releases Destia and its present and future Affiliates, directors, officers,
employees and agents, or any of them, from any and all claims, liabilities and
obligations of any nature pertaining to termination of Executive's employment
hereunder. Executive and Destia further agree that upon any termination of
Executive's employment in accordance with the terms hereof, each of Executive
and Destia shall act in good faith in connection with any such termination and
neither Executive nor Destia shall disparage or otherwise defame the business
reputation of the other party hereto.
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SECTION 9. Non-Competition and Permitted Business Activities. Non-Compete
During Employment Term. (a) Executive agrees that during the Employment Term of
this Agreement, except with the written consent of Destia, such Executive shall
not (i) accept any form of employment with remuneration from any business
related to the provision of telecommunications services (a "Competing Business")
or (ii) hold any beneficial ownership interest, directly or indirectly, in any
Competing Business; provided however, that none of the foregoing shall prohibit
Executive from owning, for the purpose of passive investment, less than 5% of
any class of securities of another publicly-held corporation.
(b) Executive agrees that during the term of this Agreement, and for a
period of twelve (12) consecutive months after termination of employment for any
reason, Executive shall not, except in the course of his duties hereunder,
directly or indirectly induce or attempt to induce or otherwise counsel, advise,
solicit or encourage any person to leave the employ of Destia (or any subsidiary
or affiliate thereof) to accept employment with any person or entity other than
Destia.
(c) Executive agrees that during the term of this Agreement, and for a
period of twelve (12) consecutive months after termination of such employment
for any reason, Executive shall not directly or indirectly solicit, induce or
attempt to solicit, induce or otherwise counsel, advise, or encourage any
customer, agent, dealer, distributor or consultant of Destia (or any subsidiary
or affiliate thereof) to become a customer, agent, dealer, distributor or
consultant, directly or indirectly, of another person or entity other than
Destia.
SECTION 10. Ownership of Work Product. (a) Executive acknowledges that
during the Employment Term, he may conceive of, discover, invent or create
inventions, improvements, new contributions, literary property, material, ideas
and discoveries, whether patentable or copyrightable or not (collectively, "Work
Product"), and that various business opportunities may be presented to him by
reason of his employment by Destia. Executive acknowledges that, unless Destia
otherwise agrees in writing, all such Work Product and business opportunities
shall be owned by and belong exclusively to Destia and that he shall have no
personal interest therein.
(b) Executive shall further, unless Destia otherwise agrees in writing,
(i) promptly disclose any such Work Product and business opportunities to
Destia, (ii) assign to Destia, upon request and without additional compensation,
the entire rights to such Work Product and business opportunities, (iii) execute
all documents necessary to carry out the foregoing and (iv) give testimony in
support of his inventorship or creation in any appropriate case upon request of
the senior management of Destia. Executive agrees that he will not assert any
rights to any Work Product or business opportunity as having been made or
acquired by him prior to the date of this Agreement except for Work Product or
business opportunities, if any, disclosed to and acknowledged by Destia in
writing prior to the date hereof.
(c) The provisions of this Section 10 shall survive for a period of three
(3) years following expiration, cancellation or other termination of this
Agreement.
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SECTION 11. Non-Disclosure of Confidential Information. (a) Executive
shall hold in a fiduciary capacity for the benefit of Destia all Confidential
Information (as defined below) and shall not, during the term of Executive's
employment hereunder or after the termination of such employment, communicate or
divulge any Confidential Information to, or use any Confidential Information for
the benefit of, any person (including Executive) other than Destia, affiliates
of Destia or persons designated in writing by Destia. "Confidential Information"
shall mean customer lists, costs and specifications of Destia's products and
services, know-how, trade secrets, financial data, operational methods,
marketing and sales information, marketing plans and strategies, business plans,
personnel information, research projects, development plans or projects and all
other information of a proprietary nature. Upon termination of Executive's
employment with Destia for any reason whatsoever, Executive shall promptly
return to Destia any documents or other written, recorded or graphic matter
containing, relating or referring to any Confidential Information (and all
copies and extracts thereof and any notes relating thereto) in Executive's
possession or control and deliver to Destia a written confirmation that all such
Confidential Material has been so returned.
(b) The provisions of this Section 11 shall survive for a period of three
(3) years following expiration, cancellation or other termination of this
Agreement.
SECTION 12. Liability for Actions or Inactions; Indemnification. (a)
Executive shall not be liable, in damages or otherwise, to Destia for any act or
failure to act on behalf of Destia, performed within the scope of his authority
conferred by the terms of his employment under this Agreement, unless such act
or omission constituted Cause or fraudulent or willful misconduct, was performed
or omitted in bad faith or constituted gross negligence.
(b) Destia shall indemnify and hold harmless Executive from and against
any and all claims, losses, damages and expenses incurred by reason of any acts,
omission or alleged acts or omissions undertaken or omitted (a) in the good
faith belief that such act or omission was in furtherance of the business of
Destia; (b) not in contravention of this Agreement; and (c) not in contravention
of the standard set forth in Section 12(a) hereof, incurred as a result of any
actual or threatened civil, criminal, administrative or investigative action,
proceeding or claim; provided, however, that if Executive ultimately is found by
any court of competent jurisdiction or by any arbitrator to have acted or
omitted to act in a manner which is in contravention of the standard set forth
in any of the foregoing clauses (a), (b) or (c), Executive shall repay all
amounts paid or reimbursed by Destia. Destia shall not be required to indemnify
Executive for any amount paid or payable by Executive in the settlement of any
action, proceeding or investigation agreed to without the written consent of
Destia (which consent shall not unreasonably be withheld or delayed). Promptly
after receipt by Executive of notice of his involvement in any action,
proceeding or investigation, Executive shall, if a claim in respect thereof for
indemnification is to be made by Executive against Destia under this Section,
notify Destia in writing of such involvement. No failure by Executive to so
notify Destia shall relieve Destia from the obligation to indemnify Executive
unless and to the extent that Destia shall have been actually prejudiced by such
failure. To the extent it wishes, Destia shall be entitled to assume the defense
of any action that is the subject of this Section; provided, however, that
Executive may retain his own counsel (i) at his own expense in
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order to participate in such defense, and (ii) at the expense of Destia if
representation of both Executive and Destia would, in the reasonable judgment of
Executive, be inappropriate due to actual or potential differing interests
between them.
(c) The provisions of this Section 12 shall survive for a period of three
(3) years following expiration, cancellation or other termination of this
Agreement.
SECTION 13. Entire Agreement. (a) This entire Agreement, together with the
Incentive Stock Option Agreement that is an Exhibit hereto, contains the entire
understanding of the parties with respect to the subject matter hereof and
supersedes any and all prior agreements and understandings, both written and
oral, of the parties with respect to the subject matter hereof.
SECTION 14. Governing Law; Jurisdiction; Service of Process. (a) This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York (other than its rules of conflicts of laws to the extent that
the application of the laws of another jurisdiction would be required thereby).
(b) With respect to any suit, action, or proceedings relating to this
Agreement ("Proceedings"), the parties irrevocably:
(i) submit to the non-exclusive jurisdiction of the courts of the
State of New York and the United States District Court located in the
Borough of Manhattan in New York City; and
(ii) waive any objection that they may have at any time to the
laying of venue of any Proceedings brought in any such court; waive any
claim that such Proceedings have been brought in an inconvenient forum;
and further waive the right to object, with respect to such Proceedings,
that such court does not have jurisdiction over such party.
(c) The parties irrevocably consent to service of process given in the
manner provided for notices in Section. Nothing in this Agreement shall affect
the right of either party to serve process in any other manner permitted by law.
SECTION 15. Specific Enforcement. If Executive breaches, or threatens to
commit a breach of, any of the provisions of Sections 9, 10 or 11 hereof, Destia
shall have the right and remedy to have such provision specifically enforced by
any court having jurisdiction, it being acknowledged and agreed that any such
breach or threatened breach will cause irreparable injury to Destia and that
money damages will not provide an adequate remedy to Destia. Nothing in this
Section 15 shall be construed to limit the right of Destia to collect money
damages in the event of a breach of any of the provisions of this Agreement,
including, without limitation, Sections 9, 10 and 11 hereof.
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SECTION 16. Third Party Beneficiaries. None of the provisions of this
Agreement shall be for the benefit of or enforceable by any third party (other
than Executive's heirs or representatives), including, without limitation, any
creditor of Destia or of Executive. No such third party shall obtain any right
under any provision of this Agreement or shall by reason of any such provision
make any claim in respect of any debt, liability, or obligation (or otherwise)
against Destia.
SECTION 17. Waiver of Jury Trial. Each party waives, to the fullest extent
permitted by applicable law, any right it may have to a trial by jury in respect
of any litigation arising out of or relating to this Agreement and Executive's
employment by Destia. Each party (a) certifies that no representative, agent or
attorney of the other party has represented, expressly or otherwise, that such
other party would not, in the event of litigation, seek to enforce the foregoing
waiver; and (b) acknowledges that it has been induced to enter into this
Agreement by, among other things, the mutual waivers and certifications set
forth in this Section.
SECTION 18. Expenses. Each party hereto shall assume and pay its own
expenses incident to the negotiation and execution of this Agreement, the
preparation for carrying it into effect and the consummation of the transactions
contemplated hereby. Without limiting the generality of the foregoing, each
party shall pay all legal fees and other fees to consultants and advisors
incurred by it relating to this Agreement and such transactions and shall
indemnify and hold the other party harmless from and against any claims for such
expenses and fees.
SECTION 19. Waivers and Amendments. This Agreement may be amended,
superseded, canceled, renewed or extended and the terms hereof may be waived,
only by a written instrument signed by each party, or, in the case of a waiver,
by the party waiving compliance. Except where a specific period for action or
inaction is provided herein, no delay on the part of a party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof. Neither
any waiver on the part of a party of any such right, power or privilege, nor any
single or partial exercise of any such right, power or privilege shall preclude
any further exercise thereof or the exercise of any other such right, power or
privilege.
SECTION 20. Notices. All notices or other communications required or
permitted to be given hereunder shall be in writing and shall be delivered by
hand or sent, postage prepaid, by registered, certified or express mail or
reputable overnight courier service and shall be deemed given when so delivered
by hand, or if mailed, three days after mailing (one business day in the case of
express mail or overnight courier service), as follows:
if to Destia:
Destia Communications, Inc.
00 Xxxxx 00 Xxxxx
Xxxxxxx, XX 00000
Attention: President
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if to Executive:
at the then current address for Executive maintained in the Destia
employee files.
SECTION 21. Calculations. All calculations of Dollar amounts hereunder
shall be rounded to the nearest whole cent. Equidistant amounts shall be rounded
upwards.
SECTION 22. Severability. If any provision of this Agreement, or the
application of such provision to any person or circumstance, shall be held
invalid, the remainder of this Agreement or the application of such provision to
other persons or circumstances shall not be affected thereby; provided, however,
that the parties shall negotiate in good faith with respect to an equitable
modification of the provision or application thereof held to be invalid. To the
extent that it may effectively do so under applicable law, each party hereto
hereby waives any provision of law, which renders any provision of this
Agreement invalid, illegal or unenforceable in any respect.
SECTION 23. Successors and Assigns. Except as otherwise specifically
provided in this Agreement, this Agreement shall be binding upon and inure to
the benefit of the parties, and their legal representatives, and permitted
successors and assigns.
SECTION 24. Captions. All headings, paragraph titles and captions
contained in this Agreement are inserted only as a matter of convenience and for
reference and in no way define, limit, extend or describe the scope of this
Agreement or the intent of any provisions hereof.
SECTION 25. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be on original and all of which, when taken
together, shall together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
DESTIA COMMUNICATIONS, INC.,
By:
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Name:
Title:
XX. XXXXXXX XXXXXXX
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