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EXHIBIT 10.42
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into
effective as of the 10th day of November, 2000, by and between HIGH SPEED ACCESS
CORP., a Delaware corporation (the "Company"), and XXXXXX X. X'XXXXX, an
individual ("Executive").
RECITAL:
Executive desires to be employed by the Company and the Company desires
to employ Executive on the terms and conditions hereinafter provided.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, it is agreed by and between the
parties hereto as follows:
1. EMPLOYMENT. The Company hereby employs Executive and Executive
accepts employment by the Company and agrees to serve the Company, upon the
terms and conditions hereinafter set forth.
2. DUTIES. Executive shall be employed by the Company as its President
and Chief Executive Officer. Executive's duties will be commensurate with those
customarily performed by one with such titles and positions at a company
similarly situated to the Company. So long as he is employed hereunder,
Executive agrees to devote his full business time and energy to the business and
affairs of the Company, to perform his duties hereunder to the best of his
ability and at a level of competency consistent with the position occupied, to
act on all matters in a manner he reasonably believes to be in and not opposed
to the best interests of the Company, to use his best efforts, skill and ability
to promote the profitable growth of the Company, and to perform such other
duties, consistent with duties customarily performed by one with such title and
position at a company similarly situated to the Company, as may be assigned to
him by the Company's Chairman or by the Company's Board of Directors (the
"Board") from time to time.
3. COMPENSATION AND BENEFITS. For all services rendered by Executive,
the Company shall pay compensation and provide benefits to Executive as follows:
A. BASE SALARY. The Company shall pay Executive a base salary
of $41,667 per month commencing on October 1, 2000. Such base salary,
together with any increases the Board may grant from time to time, is
referred to in this Agreement as "Base Salary." The Base Salary shall
be subject to annual review by the Compensation Committee of the Board.
Such Base Salary shall be subject to applicable tax withholding and
shall be paid in accordance with normal Company payroll practices.
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B. CASH BONUSES. Executive shall receive a cash bonus of
$250,000 payable on October 1, 2000 and an additional cash bonus of
$250,000 payable following the Company's receipt of audited financial
statements for the calendar year ended December 31, 2000, but not later
than June 30, 2001. In each succeeding year during which Executive
shall be employed by the Company, Executive shall be entitled to
receive a cash bonus (the "Incentive Bonus") in an amount up to fifty
percent (50%) of Executive's then Base Salary based upon Executive's
and the Company's achievement of specific predetermined goals
concerning the financial performance of the Company during the
Company's preceding fiscal year, as established annually by the Board
or the compensation committee thereof, after consultation with
Executive. The Incentive Bonus, if payable, shall be paid to Executive
within 90 days following the end of the fiscal year of the Company;
provided, however, if Executive's employment with the Company is
terminated on or before the date such Incentive Bonus is payable, such
Incentive Bonus shall not be payable to Executive, except as provided
in Section 5 of this Agreement.
C. BUSINESS EXPENSES. The Company shall reimburse Executive
for his reasonable direct out-of-pocket ordinary and necessary
expenses, if any, incurred by Executive in the performance of his
services hereunder and for which Executive properly accounts in
accordance with the Company's regulations and procedures in effect from
time to time.
D. VACATION. Executive shall be entitled to four (4) weeks
paid vacation during each twelve (12) month period of Executive's
employment with the Company. Executive shall be entitled to carry over
unused vacation from one year to the next succeeding year.
E. LIFE INSURANCE. The Company shall purchase and maintain, so
long as Executive is employed with the Company, a term life insurance
policy on the life of Executive in the amount of Two Million Dollars
($2,000,000), which policy shall name Executive's spouse or estate, as
beneficiary. At the termination of Executive's employment, Executive
shall have the right to elect to have the Company assign the term life
insurance policy to Executive. Should the Executive exercise the right
to assign, Executive shall thereafter be responsible for all premium
payments under the policy.
F. REIMBURSEMENT OF CERTAIN EXPENSES. The Company shall
reimburse Executive up to Five Thousand Dollars ($5,000) per year for
financial and tax planning expenses incurred by Executive for which
Executive properly accounts in accordance with the Company's
regulations and procedures in effect from time to time.
G. ADDITIONAL BENEFITS. Executive shall be entitled to
participate, on the same terms and conditions as other executive
officers of the Company generally, in any and all employee retirement,
medical, life and disability insurance, and other benefits plans and
perquisites as may be established and in effect from time to time and
made available to executive officers and/or employees of the Company.
H. OPTION GRANTS. In addition to Executive's existing stock
option grants, effective upon the date of this Agreement, Executive
will receive a grant of options under the Company's 1999 Stock Option
Plan (the "Plan") to purchase 750,000 shares of the Company's
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common stock ("Common Stock") at an exercise price of $2.875 per share.
Subject to Executive's continued employment with the Company, Executive
will receive options under the Plan to purchase 100,000 shares of
Common Stock (as adjusted for any stock splits, stock dividends,
recapitalizations or the like) on each of October 1, 2000, October 1,
2001 and October 1, 2002. Each option granted to Executive under this
Section 3.H shall have an exercise price equal to the fair market value
per share of the Common Stock on the date of grant as determined under
the Plan. The option grants made to Executive under this subsection H.
will be made under and subject to the terms of the Plan and will vest
in accordance with the terms of the Plan. Without any representation or
warranty by or on the part of Company, to the extent any of the options
granted to Executive hereby can, by the terms set forth herein and in
the Plan, qualify as incentive stock options under the provisions of
the Internal Revenue Code of 1986, as amended (the "Code"), Executive
and the Company intend that the same shall be treated as incentive
stock options, and to the extent any or all of the options cannot
qualify as incentive stock options under the Code, Executive and the
Company intend that the same shall be treated as nonstatutory options.
I. RESTRICTED STOCK GRANT. The Company and Executive shall
enter into a restricted stock agreement, substantially in the form
attached hereto as Exhibit A and incorporated by reference herein,
providing for the issuance to Executive of 200,000 shares of the
Company's Common Stock, subject to the restrictions and vesting
provisions set forth therein.
J. EXISTING STOCK OPTIONS. The Company and Executive shall
enter into an Amended and Restated Stock Option Agreement,
substantially in the form attached hereto as Exhibit B and incorporated
by reference herein, with respect to Executive's existing option to
purchase 750,000 shares.
K. ACCELERATED VESTING OF OPTIONS. If, during the twelve (12)
month period following a "Change in Control" (as defined herein),
Executive's employment with the Company terminates as a result of
Involuntary Termination or Constructive Termination (each as defined
herein), then Executive shall be entitled to immediate vesting of all
shares of Common Stock granted under the Restricted Stock Agreement and
of all options to purchase Common Stock held by Executive.
4. AT WILL EMPLOYMENT. Executive's employment with the Company will be
terminable at will, as defined under applicable law. The employment at will
relationship to exist between the Company and Executive allows either the
Company or Executive to end the employment relationship at any time, with or
without cause. If Executive's employment terminates for any reason, Executive
shall not be entitled to any payments, benefits, damages, awards or compensation
other than as provided in Section 5 of this Agreement, and as may otherwise be
available in accordance with the Company's established employee plans and
policies at the time of termination.
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5. SEVERANCE PAYMENTS.
A. Death, Disability, Voluntary Resignation; Termination for
Cause. IF EXECUTIVE'S EMPLOYMENT TERMINATES AS A RESULT OF EXECUTIVE'S
DEATH OR DISABILITY, OR BY REASON OF EXECUTIVE'S VOLUNTARY RESIGNATION
(VOLUNTARY RESIGNATION SHALL NOT INCLUDE CONSTRUCTIVE TERMINATION), OR
IF THE EXECUTIVE IS TERMINATED FOR CAUSE (AS DEFINED HEREIN), EXCEPT AS
SET FORTH IN SECTION 7.A OF THIS AGREEMENT, EXECUTIVE SHALL NOT BE
ENTITLED TO RECEIVE SEVERANCE OR OTHER BENEFITS EXCEPT FOR THOSE, IF
ANY, AS MAY THEN BE ESTABLISHED FOR SUCH A TERMINATION UNDER THE
COMPANY'S THEN EXISTING SEVERANCE AND BENEFITS PLANS AND POLICIES AT
THE TIME OF SUCH TERMINATION. "DISABILITY" SHALL MEAN THAT EXECUTIVE
HAS BEEN UNABLE TO PERFORM HIS DUTIES AS AN EXECUTIVE AS THE RESULT OF
HIS INCAPACITY DUE TO PHYSICAL OR MENTAL ILLNESS, SUCH INABILITY
CONTINUES FOR AT LEAST NINETY (90) DAYS, AND SUCH DISABILITY IS
DETERMINED TO BE TOTAL AND PERMANENT BY A PHYSICIAN SELECTED BY THE
COMPANY OR ITS INSURERS AND ACCEPTABLE TO EXECUTIVE OR EXECUTIVE'S
LEGAL REPRESENTATIVE (SUCH AGREEMENT AS TO ACCEPTABILITY NOT TO BE
UNREASONABLY WITHHELD).
B. INVOLUNTARY OR CONSTRUCTIVE TERMINATION. If at any time
during the term of this Agreement, the Company terminates the
employment of Executive involuntarily and without Cause or a
Constructive Termination occurs, then Executive shall be entitled to
receive the following: (A) Base Salary and vacation accrued through the
Termination Date plus continued Base Salary for a period of twelve (12)
months following the Termination Date, payable in accordance with the
Company's regular payroll schedule as in effect from time to time, (B)
any bonus payment previously fixed and declared by the Board or its
Compensation Committee on behalf of Executive and not previously paid
to Executive, (C) continuation of group health benefits pursuant to the
Company's standard programs as in effect from time to time (or
continuation of substantially similar benefits, through a third party
carrier, at the Company's election), for a period of not less than
eighteen (18) months (or such longer period as may be required by
COBRA), provided that Executive makes the necessary conversion, and (D)
no other compensation, severance or other benefits. Notwithstanding the
foregoing, however, if Executive violates the non-competition agreement
set forth in Section 12 during the twelve (12) month period following
the Termination Date, the Company shall not be required to continue to
pay the salary or bonus specified in clause (A) hereof for any period
following the Termination Date, and in such event Executive shall be
obligated to repay to the Company any amounts previously received
pursuant to clause (A) hereof, to the extent the same relate to any
period following the Termination Date.
6. Definitions. FOR PURPOSES OF THIS AGREEMENT, THE FOLLOWING TERMS
SHALL HAVE THE FOLLOWING MEANINGS:
A. Termination for Cause. TERMINATION FOR "CAUSE" MEANS
TERMINATION OF EXECUTIVE'S EMPLOYMENT BY THE COMPANY DUE TO:
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(i) A material breach by Executive of any of the
terms of Sections 7 or 8 of this Agreement; or
(ii) A determination by the Board, acting in good
faith and with reasonable justification, that Executive's
performance in his position as President and Chief Executive
Officer of the Company has been unsatisfactory, after first
having given written notice to Executive that his performance
has been unsatisfactory (which notice shall set forth in
reasonable detail the nature of the unsatisfactory
performance), and Executive having failed to cure such
unsatisfactory performance within thirty (30) days thereafter
to the reasonable satisfaction of the Board; or
(iii) The conviction of a felony, or a crime
involving moral turpitude; or
(iv) Willful misconduct, dishonesty or fraud on
Executive's part in connection with the performance of any of
his duties under this Agreement.
B. Involuntary Termination. "Involuntary Termination" shall
mean involuntary termination of Executive's employment at the will of
the Company without Cause.
C. Constructive Termination. "Constructive Termination" shall
mean a material reduction in Executive's overall responsibilities,
duties or Base Salary or benefits as in effect immediately prior to
such reduction, and Executive's decision to terminate his employment
with the Company no more than sixty (60) days following such change
(provided, however, that such sixty (60) day period shall apply with
respect to each successive change if there shall be more than one such
change) and after at least fifteen (15) days written notice to the
Company of Executive's intent to terminate.
D. Change in Control. A "Change in Control" shall be deemed to
have occurred if:
(i) For so long as any Control Shareholder or any of
its affiliates shall remain the "Beneficial Owner" (as defined
in Rule 13d-3 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")), of securities of the Company
that represent 20% or more of the total voting power
represented by the Company's then outstanding voting
securities, a "Change in Control" shall be deemed to have
occurred if:
(ii)
(a) Any "Person" (as such term is used in
Sections 13(d) and 14(d) of the Exchange Act, but
excluding the Control Shareholder or any of its
affiliates) becomes the Beneficial Owner, directly or
indirectly, of securities of the
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Company representing 50% or more of the total voting
power represented by the Company's then outstanding
voting securities;
(b) The consummation of the sale or
disposition by the Company of all or substantially
all of the Company's assets;
(c) The consummation of a merger or
consolidation of the Company with any other
corporation, other than a merger or consolidation [x]
which would result in the voting securities of the
Company outstanding immediately prior thereto
continuing to represent (either by remaining
outstanding or by being converted into voting
securities of the surviving entity or its parent) at
least 70% of the total voting power represented by
the voting securities of the Company or such
surviving entity or its parent outstanding
immediately after such merger or consolidation or [y]
in which Control Shareholder or any of its affiliates
would continue to be the Beneficial Owner of
securities representing at least 20% of the total
voting power represented by the voting securities of
the Company or such surviving entity or its parent
outstanding immediately after such merger or
consolidation and no other Person would be the
Beneficial Owner of securities that represent 20% or
more of the total voting power represented by the
voting securities of the Company or such surviving
entity or its parent outstanding immediately after
such merger or consolidation; or
(d) The Board adopts a resolution to the
effect that, for purposes of this Agreement, a Change
in Control has occurred.
(ii) At any time on or after the date Control
Shareholder or any of its affiliates no longer is the
Beneficial Owner of securities of the Company that represent
20% or more of the total voting power represented by the
Company's then outstanding voting securities, a Change in
Control shall be deemed to have occurred if:
(a) any "Person," (as such term is used for
purposes of Section 13(d) or 14(d) of the Exchange
Act) (other than (A) the Company, (B) any trustee or
other fiduciary holding securities under an employee
benefit plan of the Company, or (C) any company
owned, directly or indirectly, by the stockholders of
the Company in substantially the same proportions as
their ownership of stock of the Company), becomes the
Beneficial Owner (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities
of the Company representing 25% or more of the
combined voting power of the Company's then
outstanding securities;
(b) during any period of twenty-four months
(not including any period prior to the execution of
this Agreement), individuals who at the beginning of
such period constitute the Board, and any new
director whose election by the Board or nomination
for election by the Company's stockholders was
approved in advance by a vote of at least two-thirds
of the directors then still in office who either were
directors at the beginning of the period or whose
election or nomination for election was previously so
approved (other than (A) a director nominated by a
Person who has entered into an agreement with the
Company to
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effect a transaction described in Sections
6.D(ii)(a), (c) or (d) hereof, (B) a director
nominated by any Person who publicly announces an
intention to take or to consider taking actions
(including, but not limited to, an actual or
threatened proxy contest) which if consummated would
constitute a Change in Control or (C) a director
nominated by any Person who is the Beneficial Owner,
directly or indirectly, of securities of the Company
representing 10% or more of the combined voting power
of the Company's securities other than a Control
Shareholder) cease for any reason to constitute at
least a majority thereof;
(c) the stockholders of the Company approve
any transaction or series of transactions under which
the Company is merged or consolidated with any other
company, other than a merger or consolidation (A)
which would result in the voting securities of the
Company outstanding immediately prior thereto
continuing to represent (either by remaining
outstanding or by being converted into voting
securities of the surviving entity) more than 70% of
the combined voting power of the voting securities of
the Company or such surviving entity outstanding
immediately after such merger or consolidation and
(B) after which no Person holds 20% or more of the
combined voting power of the then-outstanding
securities of the Company or such surviving entity;
(d) the stockholders of the Company approve
a plan of complete liquidation of the Company or an
agreement for the sale or disposition by the Company
of all or substantially all of the Company's assets;
or
(e) the Board adopts a resolution to the
effect that, for purposes of this Agreement, a Change
in Control has occurred.
Notwithstanding the foregoing provisions of (i) and (ii) above, the offer and
sale of up to approximately $125 million of preferred stock by the Company in a
private placement shall not constitute a Change in Control for purposes of this
Agreement.
E. CONTROL SHAREHOLDER. "Control Shareholder" shall mean any
Person, as such term is used for purposes of Section 13(d) or 14(d) of
the Exchange Act, that, as of the date of this Agreement, is the
Beneficial Owner directly or indirectly of securities of the Company
representing 25% or more of the combined voting power of the Company's
outstanding securities, and any affiliates thereof.
F. TERMINATION DATE. "Termination Date" shall mean (i) if this
Agreement is terminated on account of death, the date of death; (ii) if
this Agreement is terminated for Disability, sixty (60) days after the
Company provides notice to Executive of the determination that a
Disability exists; (iii) if this Agreement is otherwise terminated by
the Company, the termination date specified in the notice of
termination given by the Company to Executive; (iv) if the Agreement is
terminated by Executive, the termination date specified in the notice
of termination given by Executive to the Company; or (v) if this
Agreement expires by its terms, then the last day of the term of this
Agreement.
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7. COVENANTS NOT TO SOLICIT OR COMPETE
A. NON-COMPETITION. Executive agrees that, during the
Noncompete Period (as defined in Section 7.D of this Agreement), he
shall not in any manner, directly or indirectly or by assisting others,
as a supervisor, administrator, executive, senior or management level
employee, owner, proprietor, shareholder, director, consultant or
otherwise, engage in any business which provides high speed internet
access, IP telephony or similar services which are the same or
essentially the same as the business of the Company as its primary
business (including, by way of example @Home, ISP Channel and
RoadRunner); provided that Executive shall not be restricted from
owning less than five percent (5%) of the outstanding shares of a
company whose shares are publicly traded; notwithstanding the
foregoing, the noncompetition provisions of this Section 7.A shall not
apply to Executive in the event Executive's employment is terminated
for Cause unless the Company, by action of the Compensation Committee
of the Board, elects to pay Executive his Base Salary for a period of
twelve (12) months following the Termination Date.
B. NON-SOLICITATION. Executive agrees that, during the
Noncompete Period, he shall not (other than in the regular course of
the Company's business), solicit, directly or indirectly, business of
the type then being performed by the Company from any person,
partnership, corporation or other entity which [a] is a customer of the
Company at the time Executive's employment with the Company terminates,
or [b] was such a customer within the two-year period immediately prior
thereto, for the purposes of providing products or services that are
competitive with those provided by the Company.
C. NON-INDUCEMENT. Executive agrees that for the period he is
employed by the Company and for a one year period immediately following
the termination of his employment with the Company for any reason
whatsoever, he shall not directly or indirectly, individually or on
behalf of persons not parties to this Agreement, aid or endeavor to
solicit or induce any of the Company's employees to leave their
employment with the Company in order to accept employment with
Executive or another person, partnership, corporation or other entity.
D. NONCOMPETE PERIOD. For purposes of this Section 7, the
Noncompete Period shall mean the period commencing on the date hereof
and continuing for a twelve (12) month period immediately following
Executive's termination of employment.
E. INJUNCTIVE RELIEF; ENFORCEABILITY. Executive agrees that
the Company may not be adequately compensated by damages for a breach
by Executive of any of the covenants contained in this Section 7, and
that, in addition to all other remedies, the Company shall be entitled
to injunctive relief and specific performance. In such event, the
periods of time referred to in this Section 7 shall be deemed extended
for a period equal to the respective period during which Executive is
in breach thereof, in order to provide for injunctive relief and
specific performance for a period equal to the full term thereof. The
covenants contained in this Section 7 shall be construed as separate
covenants, and if any
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court shall finally determine that the restraints provided for in any
such covenants are too broad as to the geographic area, activity or
time covered, said area, activity or time covered may be reduced to
whatever extent the court deems reasonable and such covenants shall be
enforced as to such reduced area, activity or time and Executive
expressly agrees that this Agreement, as so amended, shall be valid and
binding.
8. PROPRIETARY RIGHTS.
A. RECOGNITION OF COMPANY'S RIGHTS; NONDISCLOSURE. At all
times during the term of his employment and thereafter, Executive will
hold in strictest confidence and will not disclose, use, lecture upon
or publish any of the Company's Proprietary Information (as defined
below), except as such disclosure, use or publication may be required
in connection with his work for the Company, or unless the Chairman or
the Board expressly authorizes such in writing. Executive shall and
hereby does assign to the Company any rights he may have or acquire in
such Proprietary Information and recognizes that all Proprietary
Information shall be the sole property of the Company and its assigns
and that the Company and its assigns shall be the sole owner of all
patent rights, copyrights, trade secret rights and all other rights
throughout the world in connection therewith. The term "Proprietary
Information" shall mean trade secrets, confidential knowledge, data or
any other proprietary information of the Company which the Company
treats as confidential with respect to the general public. By way of
illustration but not limitation, "Proprietary Information" includes (a)
inventions, trade secrets, ideas, processes, formulas, data, programs,
other words of authorship, know-how, improvements, discoveries,
developments, designs and techniques relating to the business or
proposed products of the Company and which were learned or discovered
by Executive during the term of his employment with the Company; and
(b) information regarding plans for research, development, new products
and services, marketing and selling, business plans, budgets and
unpublished financial statements, licenses, prices and costs, suppliers
and customers which were learned or discovered by him during the term
of his employment with the Company, and information regarding the
compensation of other employees of the Company. For purposes of this
Agreement, the term "Proprietary Information" shall not include
information that Executive can show by competent proof (i) was known to
Executive prior to disclosure by the Company; (ii) was generally known
to the public at the time the Company disclosed the information to
Executive; (iii) became generally known to the public after disclosure
by the Company through no act or omission of Executive; or (iv) was
disclosed to Executive by a third party having a bona fide right both
to possess the information and to disclose it to Executive.
B. THIRD PARTY INFORMATION. Executive understands, in
addition, that the Company may from time to time receive from third
parties confidential or proprietary information ("Third Party
Information") subject to a duty on the Company's part to maintain the
confidentiality of such information and to use it only for certain
limited purposes. During the term of his employment and thereafter,
Executive will hold Third Party Information in the strictest confidence
and will not disclose (to anyone other than
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Company personnel who need to know such information in connection with
their work for the Company) or use, except in connection with his work
for the Company, Third Party Information unless expressly authorized by
the Chairman of the Company in writing.
C. RETURN OF COMPANY DOCUMENTS. When Executive leaves the
employ of the Company, he will deliver to the Company all drawings,
notes, memoranda, specifications, devices, formulas, and documents,
together with all copies thereof, and any other material containing or
disclosing any Third Party Information or Proprietary Information of
the Company.
D. LEGAL AND EQUITABLE REMEDIES. Because Executive's services
are personal and unique and because Executive may have access to and
become acquainted with the Proprietary Information of the Company, the
Company shall have the right to enforce this Section 8 of the Agreement
and any of its provisions by injunctions, specific performance or other
equitable relief, without bond, without prejudice to any other rights
and remedies that the Company may have for a breach of this Agreement.
9. NOTICES. All notices and other communications hereunder shall be in
writing and shall be given or made by hand delivery, or by certified or
registered mail, return receipt requested, postage prepaid, or by a reputable
overnight courier, as follows, or to such other person or address as shall be
hereafter designated by notice given in accordance with this Section:
A. If to the Company: High Speed Access Corp.
Attn: Chairman
00000 Xxxx Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
B. If to Executive: Xxxxxx X. X'Xxxxx
00 Xxxxxx Xxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Any notice or other communication hereunder shall be deemed to have been duly
given or made if made by hand, when delivered against receipt therefor or when
attempted delivery shall be rejected, as the case may be, if made by letter,
upon deposit thereof in the mail, postage prepaid, registered or certified, with
return receipt requested, and if made by reputable overnight courier, when sent.
Notwithstanding the foregoing, any notice or other communication hereunder which
is actually received by a party hereto shall be deemed to have been duly given
or made to such party.
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10. MISCELLANEOUS.
A. ASSIGNMENT. This is a contract for personal services by
Executive and may not be assigned by Executive. This Agreement shall
inure to the benefit of and be binding upon the Company and its
successors and assigns.
B. WAIVER OF BREACH. Failure or delay by either party to
insist upon compliance with any provision hereof shall not operate as,
and is not to be construed as, a waiver or amendment of such provision.
The waiver by either party of a breach of any provision of this
Agreement by the other shall not operate or be construed as a waiver of
any subsequent breach, whether occurring under similar or dissimilar
circumstances.
C. ENTIRE AGREEMENT: CANCELLATION OF PRIOR AGREEMENTS. This
Agreement, the Amended Stock Option Agreement and the Restricted Stock
Agreement contain the entire agreement of the parties with respect to
the subject matter hereof. This Agreement may not be changed orally,
but only by an amendment in writing signed by the parties hereto. All
prior agreements or understandings concerning Executive's employment by
the Company, including, without limitation, that certain Employment
Agreement by and between the Company and Executive and that certain
Supplemental Executive Compensation Agreement by and between the
Company and Executive, each dated as of October 1, 1999, are hereby
canceled and superseded by this Agreement.
D. SEVERABILITY. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or
enforceability of the remainder of this Agreement.
E. HEADINGS. The headings contained in this Agreement are for
convenience only and shall not be deemed a part of this Agreement in
construing or interpreting the provisions hereof.
F. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Colorado.
G. COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of
which when taken together shall constitute one and the same instrument.
H. ARBITRATION. Any dispute or controversy arising out of, or
relating to, this Agreement or any modification or extension of this
Agreement, including any claim for damages, recission, specific
performance or other legal or equitable relief, shall be settled by
arbitration in the City of Denver, State of Colorado, in accordance
with the rules of the American Arbitration Association. The parties
shall, within 30 days of the date of demand by either party for
arbitration, mutually select one independent, qualified arbitrator.
Each party reserves the right to object to any individual arbitrator
who shall be employed by or affiliated with a competing organization.
In the event objection is made, the Association shall resolve any
dispute regarding the propriety of an individual arbitrator acting in
that
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capacity. The parties shall each bear one-half of the expenses of the
arbitrator. Hearings in the proceeding shall commence within 120 days
of the selection of the arbitrator. The determination of the arbitrator
when made shall be binding upon all parties bound by the terms of this
Agreement. Judgment upon the award rendered by the arbitrator may be
entered in any court of competent jurisdiction. The foregoing
notwithstanding, the Company shall have the right to seek injunctive or
other equitable relief from any court of competent jurisdiction in the
event of any breach or threatened breach of Sections 7 or 8 of this
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day, month and year first above written.
HIGH SPEED ACCESS CORP.
By: /s/ Xxxxx X. Xxxxx, Xx.
-----------------------
Title: Chairman
--------------------
("Company")
/s/ Xxxxxx X. X'Xxxxx
---------------------
XXXXXX X. X'XXXXX
("Executive")
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