Exhibit 10.7
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this "AGREEMENT") is made and
entered into this 24th day of June, 1999 by and between AXCES, Inc., a Delaware
corporation having its principal executive office at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to as the "COMPANY"), and ▇▇▇▇▇▇▇
Avignon, an individual residing at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
(hereinafter referred to as the "EMPLOYEE").
W I T N E S S E T H :
WHEREAS, Employee desires to serve the Company as its Operations
Manager; and
WHEREAS, the parties desire to provide that the Employee be employed by
the Company under the terms of this Agreement.
NOW, THEREFORE, for and in consideration of the mutual promises,
covenants and obligations contained herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Company and the Employee hereby agree as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following terms have
the meanings prescribed below:
ANNUAL BONUS shall have the meaning assigned thereto in Section 4.2
hereof.
BASE SALARY shall have the meaning assigned thereto in Section 4.1
hereof.
BOARD OF DIRECTORS means the board of directors of the Company; provided
that with respect to any determinations, selections or decisions to be made by
the Board of Directors, including with respect to the existence of any
Disability or the termination of this Agreement, such determinations, selections
and decisions may be made by the board of directors of the Parent.
CAUSE shall have the meaning assigned thereto in Section 5.3 hereof.
CODE means the Internal Revenue Code of 1986, as amended, and the rules
and regulations promulgated by the Internal Revenue Service thereunder, all as
in effect from time to time during the Employment Period.
COMMON STOCK means the Parent's common stock, par value $.0001 per share.
CONFIDENTIAL INFORMATION shall have the meaning assigned thereto in
Section 8.2 hereof.
DATE OF TERMINATION means the earliest to occur of (i) the date of the
Employee's death, (ii) the date on which the Employee terminates this Agreement
for any reason or (iii) the date of receipt of the Notice of Termination, or
such later date as may be prescribed in the Notice of Termination in accordance
with Section 5.6 hereof.
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DISABILITY means an illness or other disability which prevents, as
determined in good faith by the Board of Directors, or will prevent, as
determined by a qualified doctor selected by the Board of Directors, the
Employee from discharging his responsibilities under this Agreement for a period
of 180 consecutive calendar days, or an aggregate of 180 calendar days in any
calendar year, during the Employment Period.
EFFECTIVE DATE means the date upon which the stock of the Parent is
issued and sold pursuant to a registration statement filed under the Securities
Act of 1933, as amended.
EMPLOYMENT PERIOD shall have the meaning assigned thereto in Section 3
hereof.
EXCHANGE ACT means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated by the Securities and Exchange Commission
thereunder, all as in effect from time to time during the Employment Period.
NET INCOME means the net income of the Company in any calendar year
determined from the books and records of the Company in accordance with
generally accepted accounting principals consistently applied.
NOTICE OF TERMINATION shall have the meaning assigned thereto in
Section 5.6 hereof.
PARENT means OmniLynx Communications Corporation, a Delaware corporation.
SUBSIDIARY, when used with respect to any such entity, shall mean any
corporation or other business entity a majority of whose outstanding voting
stock or the equivalent entitled to vote for the election of directors is at the
time owned by such entity and/or one or more of its subsidiaries.
WITHOUT CAUSE shall have the meaning assigned thereto in Section 5.4
hereof.
2. GENERAL DUTIES OF COMPANY AND EMPLOYEE.
2.1 The Company agrees to employ the Employee, and the Employee agrees
to accept employment by the Company and to serve the Company as its Operations
Manager. The authority, duties and responsibilities of the Employee shall
include those duties usually associated with the Operations Managers of
companies having similar business, operations and size as that of the Company,
and such other or additional duties as may from time to time be assigned to the
Employee by the Board of Directors. During normal business hours, the Employee
agrees to devote such amount of his time, attention, energy and skill as
necessary to perform his duties hereunder and use his best efforts to perform
faithfully and efficiently his duties and responsibilities. The Employee may
(i) serve on corporate, civic or charitable boards or committees provided that
(A) such boards or committees do not control or advise business entities that
compete with the Company and (B) all such services are promptly disclosed in
writing to the Board of Directors, (ii) deliver lectures, fulfill speaking
engagements or teach at educational institutions and (iii) manage personal
investments, so long as such activities do not materially interfere with the
performance of the Employee's duties and responsibilities.
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2.2 The Employee agrees and acknowledges that he owes a fiduciary duty
of loyalty, fidelity and allegiance to act at all times in the best interests of
the Company and to do no act and to make no statement, oral or written, which
would injure the Company's business, its interests or its reputation.
2.3 The Employee agrees to comply at all times with all applicable
policies, rules and regulations of the Company, including, without limitation,
the Company's Code of Ethics and the Company's policy regarding trading in the
Common Stock, as each is in effect from time to time during the Employment
Period and to the extent provided to Employee in writing.
3. TERM. Unless sooner terminated pursuant to other provisions hereof, the
Employee's period of employment under this Agreement shall be the period
beginning on the Effective Date and ending on the third anniversary thereof.
The period of time beginning on the Effective Date and ending on the third
anniversary thereof (notwithstanding termination of this Agreement prior to the
end of such period pursuant to other provisions hereof) is referred to elsewhere
herein as the "EMPLOYMENT PERIOD."
4. COMPENSATION AND BENEFITS.
4.1 BASE SALARY. As compensation for services to the Company, the
Company shall pay to the Employee until the Date of Termination an annual base
salary of $160,000 (the "BASE SALARY"). The Base Salary shall be payable in
equal semi-monthly installments or in accordance with the Company's established
policy, subject only to such payroll and withholding deductions as may be
required by law and other deductions applied generally to employees of the
Company for insurance and other employee benefit plans.
4.2 ANNUAL BONUS. The Company will pay Employee an annual bonus
("ANNUAL BONUS") determined as follows: (i) if the Net Income of the Company is
less than $3,000,000, Employee shall receive no Annual Bonus; (ii) if the Net
Income of the Company exceeds $3,000,000 but is less than $5,000,000, Employee
shall receive an Annual Bonus equal to $90,000 plus 5% of the amount that Net
Income exceeds $3,000,000; and (iii) if Net Income exceeds $5,000,000, Employee
shall receive an Annual Bonus equal to $190,000 plus 10% of the amount that Net
Income exceeds $5,000,000. The Annual Bonus shall be prorated for any partial
calendar year during the term of this Agreement. Any Annual Bonus payable
hereunder shall be subject to such payroll and withholding deductions as
required by law.
4.3 VACATION. Until the Date of Termination, the Employee shall be
entitled to vacation as determined by the Company's vacation policy for its
executive officers as in effect from time to time but not less than four weeks
each calendar year.
4.4 INCENTIVE, SAVINGS AND RETIREMENT PLANS. Until the Date of
Termination, the Employee shall be eligible to participate in and shall receive
all benefits under all executive incentive, savings and retirement plans
(including 401(k) plans) and programs currently maintained or hereinafter
established by the Company for the benefit of its executive officers and/or
employees.
4.5 WELFARE BENEFIT PLANS. Until the Date of Termination, the
Employee and/or the Employee's family, as the case may be, shall be eligible to
participate in and shall receive all
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benefits under each welfare benefit plan of the Company currently maintained
or hereinafter established by the Company for the benefit of its employees.
Such welfare benefit plans may include, without limitation, medical, dental,
disability, group life, accidental death and travel accident insurance plans
and programs.
4.6 REIMBURSEMENT OF EXPENSES. The Employee may from time to time
until the Date of Termination incur various business expenses customarily
incurred by persons holding positions of like responsibility, including, without
limitation, travel, entertainment and similar expenses incurred for the benefit
of the Company. Subject to the Company's policy regarding the reimbursement of
such expenses as in effect from time to time during the Employment Period, the
Company shall reimburse the Employee for such expenses from time to time, at the
Employee's request, and the Employee shall account to the Company for all such
expenses.
4.7 STOCK OPTIONS. The Board of Directors, in its sole discretion,
may grant to the Employee options to acquire shares of Common Stock with such
terms and conditions as determined by the Board of Directors in its sole
discretion.
4.8 CAR ALLOWANCE. Employee shall be entitled to a vehicle allowance
of $1,000.00 per month during the term of this Agreement, which shall be payable
with payments of Base Salary and subject to any applicable payroll or
withholding deductions required by law.
5. TERMINATION.
5.1 DEATH. This Agreement shall terminate automatically upon the
death of the Employee.
5.2 DISABILITY. The Company may terminate this Agreement, upon
written notice to the Employee delivered in accordance with Sections 5.6
and 12.1 hereof, upon the Disability of the Employee.
5.3 CAUSE. The Company may terminate the Employee's employment
hereunder for Cause. For purposes of this Agreement, the Company shall have
"CAUSE" to terminate the Employee's employment hereunder upon (A) breach of this
Agreement by Employee, (B) the willful failure by the Employee to substantially
perform his duties hereunder (other than any such failure resulting from the
Employee's incapacity due to physical or mental illness) or failure to follow
the specific reasonable directives of the Board of Directors, after demand for
substantial performance that specifically identifies the manner in which the
Company believes the Employee has not substantially performed his duties is
delivered to the Employee by the Company, or (C) the willful engaging by the
Employee in misconduct which is materially injurious to the Company, monetarily
or otherwise. For purposes of this paragraph, no act, or failure to act, on the
Employee's part shall be considered "willful" unless done, or omitted to be
done, by him not in good faith and without reasonable belief that his action or
omission was in the best interest of the Company. Notwithstanding the
foregoing, the Employee shall not be deemed to have been terminated for Cause
without (i) 15 days notice to the Employee setting forth the reasons for the
Company's intention to terminate for Cause and (ii) delivery to the Employee of
a Notice of Termination as defined in Section 5.6 hereof, from the Board of
Directors finding that, in the good faith opinion of the Board of Directors, the
Employee was
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guilty of conduct set forth above in clause (B) of this Section 5.3 and
specifying the particulars thereof in detail.
5.4 WITHOUT CAUSE. The Company may terminate this Agreement Without
Cause, upon written notice to the Employee delivered in accordance with
Sections 5.6 and 12.1 hereof. For purposes of this Agreement, the Employee will
be deemed to have been terminated "WITHOUT CAUSE" if the Employee is terminated
by the Company for any reason other than Cause, Disability of the Employee or
death of the Employee.
5.5 BY THE EMPLOYEE. The Employee may terminate this Agreement for
any reason, upon written notice to the Company delivered in accordance with
Sections 5.6 and 12.1 hereof.
5.6 NOTICE OF TERMINATION. Any termination of this Agreement by the
Company for Cause, Without Cause or as a result of the Disability of the
Employee, or by the Employee for any reason, shall be communicated by Notice of
Termination to the other party hereto given in accordance with this Agreement.
For purposes of this Agreement, a "NOTICE OF TERMINATION" means a written notice
which (i) indicates the specific termination provision in this Agreement relied
upon, (ii) sets forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of the Employee's employment under the
provision so indicated and (iii) specifies the termination date, if such date is
other than the date of receipt of such notice (which termination date shall not
be more than 15 days after the giving of such notice).
6. OBLIGATIONS OF COMPANY UPON TERMINATION.
6.1 CAUSE; BY EMPLOYEE; DISABILITY. If this Agreement shall be
terminated (i) by the Company for Cause or Death or Disability of the Employee
or (ii) by the Employee for any reason:
6.1.1 the Company shall pay to the Employee or his estate, in a
lump sum in cash within 30 days after the Date of Termination, the
aggregate of the following amounts:
(i) if not theretofore paid, the Base Salary through the
Date of Termination; and
(ii) in the case of compensation previously deferred by
the Employee, all amounts of such compensation previously deferred
and not yet paid by the Company; and
6.1.2 the Company shall, promptly upon submission by the
Employee of supporting documentation, pay or reimburse to the Employee
any costs and expenses paid or incurred by the Employee prior to the Date
of Termination which would have been payable under Section 4.6 hereof if
the Employee's employment had not terminated.
6.2 WITHOUT CAUSE. If this Agreement shall be terminated by the
Company Without Cause:
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6.2.1 the Company shall pay to the Employee, in a lump sum in
cash within 30 days after the Date of Termination, the aggregate of the
following amounts:
(i) if not theretofore paid, the Base Salary through the
Date of Termination;
(ii) in the case of compensation previously deferred by
the Employee, all amounts of such compensation previously deferred
and not yet paid by the Company; and
(iii) an amount equal to the Annual Bonus that would have
been payable to Employee for the calendar year of Employee's
termination if this Agreement had not been terminated based upon
the annualized Net Income as of the Date of Termination, less any
payroll or withholding deductions required by law.
6.2.2 the Company shall, promptly upon submission by the
Employee of supporting documentation, pay or reimburse to the Employee
any costs and expenses paid or incurred by the Employee prior to the Date
of Termination which would have been payable under Section 4.6 hereof if
the Employee's employment had not terminated;
6.2.3 for a period of 6 months after the Date of Termination, the
Company shall continue benefits to the Employee and/or the Employee's
family at least equal to those which would have been provided to them
under Section 4.5 hereof if the Employee's employment had not been
terminated; and
6.2.4 the Company shall pay to the Employee, in equal
semi-monthly installments, the Base Salary for a period of 6 months after
the Date of Termination less any payroll or withholding deductions
required by law.
7. EMPLOYEE'S OBLIGATION TO AVOID CONFLICTS OF INTEREST. The Employee
hereby acknowledges that the Company will adopt a Code of Ethics and a conflicts
of interest policy which will apply to all of the Company's executive officers
and the Employee agrees to abide by the same. Failure of the Employee to abide
by such policy shall constitute Cause as defined in Section 5.3 of this
Agreement.
8. EMPLOYEE'S CONFIDENTIALITY OBLIGATION.
8.1 The Employee hereby acknowledges, understands and agrees that all
Confidential Information is the exclusive and confidential property of the
Company, Parent and Parent's other Subsidiaries which shall at all times be
regarded, treated and protected as such in accordance with this Section 8. The
Employee acknowledges that all such Confidential Information is in the nature of
a trade secret.
8.2 For purposes of this Agreement, "CONFIDENTIAL INFORMATION" means
information which is used in the business of the Company, Parent or Parent's
other Subsidiaries and (i) is proprietary to, about or created by the Company,
Parent or Parent's other Subsidiaries, (ii) gives the Company, Parent or
Parent's other Subsidiaries some competitive business advantage or the
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opportunity of obtaining such advantage or the disclosure of which could be
detrimental to the interests of the Company, Parent or Parent's other
Subsidiaries, (iii) is designated as Confidential Information by the Company,
Parent or Parent's other Subsidiaries, is known by the Employee to be considered
confidential by the Company, Parent or Parent's other Subsidiaries, or from all
the relevant circumstances should reasonably be assumed by the Employee to be
confidential and proprietary to the Company, Parent or Parent's other
Subsidiaries, or (iv) is not generally known by non-Company personnel; provided,
however, that "Confidential Information" shall not include (a) such information
which becomes known to the public generally through no fault of Employee, (b)
information required to be disclosed by law or the order of any governmental
authority under color of law, provided, that prior to disclosing any information
pursuant to this clause (b), Employee shall, if possible, give prior written
notice thereof to the Company and provide the Company with opportunity to
contest such disclosure, or (c) information the disclosure of which Employee
reasonably believes is required in connection with the defense of a lawsuit
against Employee. Such Confidential Information includes, without limitation,
the following types of information and other information of a similar nature
(whether or not reduced to writing or designated as confidential):
8.2.1 Internal personnel and financial information of the
Company, Parent or Parent's other Subsidiaries, vendor information
(including vendor characteristics, services, prices, lists and
agreements), purchasing and internal cost information, internal service
and operational manuals, and the manner and methods of conducting the
business of the Company, Parent or Parent's other Subsidiaries;
8.2.2 Marketing and development plans, price and cost data, price
and fee amounts, pricing and billing policies, quoting procedures,
marketing techniques, forecasts and forecast assumptions and volumes, and
future plans and potential strategies (including, without limitation, all
information relating to any acquisition prospect and the identity of any
key contact within the organization of any acquisition prospect) of the
Company, Parent or Parent's other Subsidiaries, which have been or are
being discussed;
8.2.3 Names of customers and their representatives, contracts
(including their contents and parties), customer services, and the type,
quantity, specifications and content of products and services purchased,
leased, licensed or received by customers of the Company, Parent or
Parent's other Subsidiaries; and
8.2.4 Confidential and proprietary information provided to the
Company, Parent or Parent's other Subsidiaries by any actual or potential
customer, government agency or other third party (including businesses,
consultants and other entities and individuals).
8.3 As a consequence of the Employee's acquisition or anticipated
acquisition of Confidential Information, the Employee shall occupy a position of
trust and confidence with respect to the affairs and business of the Company,
Parent and Parent's other Subsidiaries. In view of the foregoing and of the
consideration to be provided to the Employee, the Employee agrees that it is
reasonable and necessary that the Employee make each of the following covenants:
8.3.1 Until the Date of Termination and for a period of three
years thereafter, the Employee shall not disclose Confidential
Information to any person or entity, either
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inside or outside of the Company, other than as necessary in carrying
out his duties and responsibilities as set forth in Section 2 hereof,
without first obtaining the Company's prior written consent (unless
such disclosure is compelled pursuant to court orders or subpoena,
and at which time the Employee shall give notice of such proceedings
to the Company).
8.3.2 Until the Date of Termination and for a period of three
years thereafter, the Employee shall not use, copy or transfer
Confidential Information other than as necessary in carrying out his
duties and responsibilities as set forth in Section 2 hereof, without
first obtaining the Company's prior written consent.
8.3.3 On the Date of Termination, the Employee shall promptly
deliver to the Company (or its designee) or destroy all written
materials, records and documents made by the Employee or which came into
his possession on or before the Date of Termination (even if prior to the
date hereof) concerning the business or affairs of the Company or its
Affiliates, including, without limitation, all materials containing
Confidential Information.
9. DISCLOSURE OF INFORMATION, IDEAS, CONCEPTS, IMPROVEMENTS, DISCOVERIES AND
INVENTIONS. As part of the Employee's fiduciary duties to the Company, the
Employee agrees that during his employment by the Company and for a period of
one year following the Date of Termination, the Employee shall promptly disclose
in writing to the Company all information, ideas, concepts, improvements,
discoveries and inventions, whether patentable or not, and whether or not
reduced to practice, which are conceived, developed, made or acquired by the
Employee, either individually or jointly with others, and which relate to the
business, products or services of the Company, Parent or Parent's other
Subsidiaries, irrespective of whether the Employee used the Company's time or
facilities and irrespective of whether such information, idea, concept,
improvement, discovery or invention was conceived, developed, discovered or
acquired by the Employee on the job, at home, or elsewhere. This obligation
extends to all types of information, ideas and concepts, including information,
ideas and concepts relating to new types of services, corporate opportunities,
acquisition prospects, the identity of key representatives within acquisition
prospect organizations, prospective names or service marks for the Company's
business activities, and the like.
10. OWNERSHIP OF INFORMATION, IDEAS, CONCEPTS, IMPROVEMENTS, DISCOVERIES AND
INVENTIONS, AND ALL ORIGINAL WORKS OF AUTHORSHIP.
10.1 All information, ideas, concepts, improvements, discoveries and
inventions, whether patentable or not, which are conceived, made, developed or
acquired by the Employee or which are disclosed or made known to the Employee,
individually or in conjunction with others, during the Employee's employment by
the Company and which relate to the business, products or services of the
Company, Parent or Parent's other Subsidiaries (including, without limitation,
all such information relating to corporate opportunities, research, financial
and sales data, pricing and trading terms, evaluations, opinions,
interpretations, acquisition prospects, the identity of customers or their
requirements, the identity of key contacts within the customers' organizations
or within the organization of acquisition prospects, marketing and merchandising
techniques, and prospective names and service marks) are and shall be the sole
and exclusive property of the Company. Furthermore, all drawings, memoranda,
notes, records, files,
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correspondence, manuals, models, specifications, computer programs, maps and
all other writings or materials of any type embodying any of such
information, ideas, concepts, improvements, discoveries and inventions are
and shall be the sole and exclusive property of the Company.
10.2 In particular, the Employee hereby specifically sells, assigns,
transfers and conveys to the Company all of his worldwide right, title and
interest in and to all such information, ideas, concepts, improvements,
discoveries or inventions, and any United States or foreign applications for
patents, inventor's certificates or other industrial rights which may be filed
in respect thereof, including divisions, continuations, continuations-in-part,
reissues and/or extensions thereof, and applications for registration of such
names and service marks. The Employee shall assist the Company and its nominee
at all times, until the Date of Termination and at all times thereafter, in the
protection of such information, ideas, concepts, improvements, discoveries or
inventions, both in the United States and all foreign countries, which
assistance shall include, but shall not be limited to, the execution of all
lawful oaths and all assignment documents requested by the Company or its
nominee in connection with the preparation, prosecution, issuance or enforcement
of any applications for United States or foreign letters patent, including
divisions, continuations, continuations-in-part, reissues and/or extensions
thereof, and any application for the registration of such names and service
marks.
10.3 In the event the Employee creates, during the Employee's
employment by the Company, any original work of authorship fixed in any tangible
medium of expression which is the subject matter of copyright (such as,
videotapes, written presentations on acquisitions, computer programs, drawings,
maps, architectural renditions, models, manuals, brochures or the like) relating
to the Company's business, products or services, whether such work is created
solely by the Employee or jointly with others, the Company shall be deemed the
author of such work if the work is prepared by the Employee within the scope of
his employment; or, if the work is not prepared by the Employee within the scope
of his employment but is specially ordered by the Company as a contribution to a
collective work, as a part of a motion picture or other audiovisual work, as a
translation, as a supplementary work, as a compilation or as an instructional
text, then the work shall be considered to be a work made for hire, and the
Company shall be the author of such work. The Employee agrees to assist the
Company, Parent or Parent's other Subsidiaries, at all times, until the Date of
Termination and at all times thereafter, in the protection of the Company's
worldwide right, title and interest in and to such work and all rights of
copyright therein, which assistance shall include, but shall not be limited to,
the execution of all documents requested by the Company or its nominee and the
execution of all lawful oaths and applications for registration of copyright in
the United States and foreign countries.
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11. EMPLOYEE'S NON-COMPETITION OBLIGATION.
11.1 Until the Date of Termination, and for a period of one year
thereafter, the Employee shall not, acting alone or in conjunction with others,
directly or indirectly, in any of the business territories in which the Company,
Parent or Parent's other Subsidiaries, is as of the Date of Termination
conducting business, invest or engage, directly or indirectly, in any business
which is competitive with that of the Company, Parent or Parent's other
Subsidiaries as of the Date of Termination or accept employment with or render
services to such a competitor as a director, officer, agent, employee or
consultant, or take any action inconsistent with the fiduciary relationship of
an employee to his employer; provided, however, that the beneficial ownership by
the Employee of up to three percent of the voting stock of any corporation
subject to the periodic reporting requirements of the Exchange Act shall not
violate this Section 11.1.
11.2 In addition to the other obligations agreed to by the Employee in
this Agreement, the Employee agrees that until the Date of Termination, and for
a period of one year thereafter, he shall not at any time, directly or
indirectly, (i) induce, entice or solicit any employee of the Company to leave
his employment, (ii) contact, communicate or solicit any customer or acquisition
prospect of the Company derived from any customer list, customer lead, Company
mail, printed matter or other information secured from the Company or its
present or past employees or (iii) in any other manner use any customer lists or
customer leads, mail, telephone numbers, printed material or other information
of the Company relating thereto.
11.3 The parties hereto acknowledge and agree that (i) the agreements
and covenants set forth in this Section 11 are being made for good and valuable
consideration, the receipt and sufficiency of which is acknowledged; (ii) the
covenants contained in this Section 11 are an important aspect of this
Agreement, and the Company would not have entered into this Agreement absent the
inclusion of this Section 11; and (iii) the restrictions imposed in this
Section 11, including the geographic area and duration of the covenants made
herein, are reasonable and necessary to protect the Company. If the Employee
breaches or indicates an intention to breach any term or provision of this
Section 11, the parties hereto agree that the Company shall be entitled to the
right of both temporary and permanent injunctive relief and/or specific
performance. The right of the Company to such relief shall not be construed to
prevent the Company from pursuing, either consecutively or concurrently, any and
all other legal or equitable remedies available to it for such breach or
threatened breach, specifically including, without limitation, the recovery of
monetary damages. If any court determines that any provision of this
Section 11, or any part thereof, is unenforceable because of the duration or
geographic scope of such provision, the parties hereto agree that such court
shall have the power to reduce the duration or geographic scope of such
provision, as the case may be, and the parties hereto agree to request the court
to exercise such power, and, in its amended form, such provision shall then be
enforceable and shall be enforced.
12. MISCELLANEOUS.
12.1 NOTICES. All notices and other communications required or
permitted hereunder or necessary or convenient in connection herewith shall be
in writing and shall be deemed to have been given when delivered by hand or
mailed by registered or certified mail, return receipt
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requested, as follows (provided that notice of change of address shall be
deemed given only when received):
If to the Company to:
AXCES, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: President
With a copy to:
OmniLynx Communications Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Chief Executive Officer
If to the Employee to:
▇▇▇▇▇▇▇ Avignon
12631 Broken Bough
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
or to such other names or addresses as the Company or the Employee, as the case
may be, shall designate by notice to the other party hereto in the manner
specified in this Section 12.1.
12.2 WAIVER OF BREACH. The waiver by any party hereto of a breach of
any provision of this Agreement shall neither operate nor be construed as a
waiver of any subsequent breach by any party.
12.3 ASSIGNMENT. This Agreement shall be binding upon and inure to the
benefit of the Company, its successors, legal representatives and assigns, and
upon the Employee, his heirs, executors, administrators, representatives and
assigns; provided, however, the Employee agrees that his rights and obligations
hereunder are personal to him and may not be assigned without the express
written consent of the Company.
12.4 ENTIRE AGREEMENT; NO ORAL AMENDMENTS. This Agreement, together
with any exhibit attached hereto and any document, policy, rule or regulation
referred to herein, replaces and merges all previous agreements and discussions
relating to the same or similar subject matter between the Employee and the
Company and constitutes the entire agreement between the Employee and the
Company with respect to the subject matter of this Agreement. This Agreement
may not be modified in any respect by any verbal statement, representation or
agreement made by any employee, officer, or representative of the Company or by
any written agreement unless signed by an officer of the Company who is
expressly authorized by the Company to execute such document.
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12.5 ENFORCEABILITY. If any provision of this Agreement or application
thereof to anyone or under any circumstances shall be determined to be invalid
or unenforceable, such invalidity or unenforceability shall not affect any other
provisions or applications of this Agreement which can be given effect without
the invalid or unenforceable provision or application.
12.6 JURISDICTION; ARBITRATION. The laws of the State of Delaware
shall govern the interpretation, validity and effect of this Agreement without
regard to the place of execution or the place for performance thereof. Any
controversy or claim arising out of or relating to this Agreement, or the breach
thereof, shall be settled by arbitration located in Houston, Texas administered
by the American Arbitration Association in accordance with its applicable
arbitration rules, and the judgment on the award rendered by the arbitrator(s)
may be entered in any court having jurisdiction thereof, which judgment shall be
binding upon the parties hereto.
12.7 INJUNCTIVE RELIEF. The Company and the Employee agree that a
breach of any term of this Agreement by the Employee would cause irreparable
damage to the Company and that, in the event of such breach, the Company shall
have, in addition to any and all remedies of law, the right to any injunction,
specific performance and other equitable relief to prevent or to redress the
violation of the Employee's duties or responsibilities hereunder.
12.8 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be an original, but all of which taken
together shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have
executed this Agreement as of the date first written above.
AXCES, INC.
By: /s/ ▇▇▇▇▇▇▇ Avignon
--------------------------------
Name: ▇▇▇▇▇▇▇ Avignon
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Title: Chairman and Chief Executive
Officer
------------------------------
EMPLOYEE
/s/ ▇▇▇▇▇▇▇ Avignon
------------------------------------
▇▇▇▇▇▇▇ Avignon
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