EXHIBIT 10.1.6
EMPLOYMENT AGREEMENT
BY AND BETWEEN
Z-TEL TECHNOLOGIES, INC.
AND
XXXXX X. KITCHEN
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as
of February 1, 1998, by and between Z-TEL TECHNOLOGIES, INC., a Delaware
corporation (the "Company"), and XXXXX X. KITCHEN ("Employee").
WHEREAS, the Company and Employee desire to enter into this Agreement
to assure the Company of the services of Employee and to set forth the
respective rights and duties of the parties hereto;
WHEREAS, the Company is presently in the business of providing enhanced
telecommunications products and services (such activities, present and future,
being hereinafter referred to as the "Business");
NOW, THEREFORE, in consideration of the premises and the mutual
covenants, terms and conditions set forth herein, the Company and Employee agree
as follows:
ARTICLE I
Employment
1.1 Employment and Title. The Company hereby employs Employee, and
Employee hereby accepts such employment, as Senior Vice President - Engineering
of the Company, all upon the terms and conditions set forth herein.
1.2 Services. During the Term (as hereinafter defined) hereof, Employee
agrees to perform diligently and in good faith the duties of Senior Vice
President - Engineering of the Company, under the direction of the Board of
Directors of the Company (the "Board of Directors") or the Executive Committee
of the Board of Directors (the "Executive Committee"). Employee agrees to devote
his best efforts and all of his full business time, energies and abilities to
the services to be performed hereunder and for the exclusive benefit of the
Company. Employee shall be vested with such authority as is generally
commensurate with the position of Senior Vice President - Engineering of the
Company, as further outlined below. Employee will report solely to D. Xxxxxxx
Xxxxx, the Company's President and Chief Executive Officer.
1.3 Location. The principal place of employment and the location of
Employee's principal office shall be in Atlanta, Georgia; provided, however,
Employee shall, if he determines it to be reasonably necessary, engage in
reasonable travel in the performance of his duties under this Agreement.
1.4 Representations. Each party represents and warrants to the other
that he/it has full power and authority to enter into and perform this Agreement
and that his/its execution and performance of this Agreement shall not
constitute a default under or breach of any of the terms of any agreement to
which he/it is a party or under which he/it is bound. Each party represents that
no consent or approval of any third party is required for his/its execution,
delivery and performance of this Agreement or that all consents or approvals of
any third party required for his/its execution, delivery and performance of this
Agreement have been obtained.
1.5 Sole Discretion. As the term "sole discretion" is used in this
Agreement, unless otherwise defined, it will be interpreted as the exercise of
reasonable discretion applying normal business practices to a contractual
relationship between a company and its senior vice president - engineering.
ARTICLE II
Term
2.1 Term. The term of Employee's employment hereunder (the "Term")
shall commence as of the date hereof (the "Commencement Date") and shall
continue through the third anniversary of the Commencement Date (the "Scheduled
Termination Date"), unless earlier terminated pursuant to the provisions of this
Agreement. This Agreement shall automatically renew for an unlimited number of
successive one-year terms unless either party shall deliver written notice of
non-renewal at least ninety (90) days prior to the Scheduled Termination Date
(or the Scheduled Termination Date of any renewal term).
ARTICLE III
Compensation
3.1 Base Salary. As compensation for the services to be rendered by
Employee, the Company shall pay Employee, during the Term of this Agreement, an
annual base salary of not less than One Hundred Fifty Thousand Dollars
($150,000.00), which base salary shall accrue monthly (prorated for periods less
than a month) and shall be paid in equal monthly installments, in arrears. The
base salary will be reviewed annually, or, more frequently, as appropriate, by
the Board of Directors or the Compensation Committee of the Board of Directors,
as the case may be, for upward, but not downward, adjustment in its sole
discretion. Employee shall in no event receive an annual base salary less than
that paid to the Company's Chief Executive Officer.
3.2 Bonus Compensation. Employee shall be eligible to receive bonus or
incentive compensation, which may be granted from time to time in the sole
discretion of the Board of Directors in accordance with the Company's
compensation structure in effect from time to time.
3.3 Employee's Legal Fees. Employee may, and the Company has encouraged
the Employee to, engage competent independent legal counsel for advice and
guidance with respect to this Agreement, including, without limitation, advice
as to the federal income tax consequences of
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this Article III. The Company shall reimburse Employee for all reasonable legal
fees incurred by Employee in connection with the negotiation and execution of
this Agreement.
3.4 Benefits. Employee shall be entitled, during the Term hereof, to
the same medical, hospital, dental and life insurance coverage and benefits as
are then available to the Company's most senior executive officers, together
with the following additional benefits:
(a) An automobile allowance of One Thousand Dollars ($1,000.00)
per month;
(b) Comprehensive medical coverage, including dependent coverage,
paid fully by the Company;
(c) Life insurance in an amount equal to two times Employee's
base salary;
(d) Long-term disability insurance in an amount, adjusted
annually, equal to two-thirds of Employee's prior year base
salary and incentive compensation, if any, excluding
compensation earned through Company stock options or other
securities;
(e) The Company's normal vacation allowance for all employees who
are executive officers of the Company, but not less than
three weeks annually;
(f) An Officers and Directors Indemnity Agreement, substantially
in the form attached hereto as Exhibit A.
3.5 Withholding. Any and all amounts payable under this Agreement,
including, without limitation, amounts payable under this Article III and
Article VII, are subject to withholding for such federal, state and local taxes
required pursuant to any applicable law, rule or regulation.
ARTICLE IV
Working Facilities, Expenses and Insurance
4.1 Working Facilities and Expenses. Employee shall be furnished with
an office at the Employee's principal office as set forth in Section 1.3 hereof,
or at such other location as agreed to by Employee and the Company, and other
working facilities and secretarial and other assistance suitable to his position
and reasonably required for the performance of his duties hereunder. The Company
shall reimburse Employee for all of Employee's reasonable expenses incurred
while employed and performing his duties under and in accordance with the terms
and conditions of this Agreement, subject to Employee's full and appropriate
documentation, including, without limitation, receipts for all such expenses in
the manner required pursuant to Company's policies and procedures and the
Internal Revenue Code of 1986, as amended (the "Code"), and applicable
regulations in effect from time to time.
4.2 Insurance. The Company may secure in its own name or otherwise, and
at its own expense, life, disability and other insurance covering Employee or
Employee and others, and
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Employee shall not have any right, title or interest in or to such insurance
other than as expressly provided herein. Employee agrees to assist the Company
in procuring such insurance by submitting to the usual and customary medical and
other examinations to be conducted by such physicians(s) as the Company or such
insurance company may designate and by signing such applications and other
written instruments as may be required by any insurance company to which
application is made for such insurance. Any information provided by Employee to
such insurance company (the results of examinations being deemed part of such
information) will be provided on a confidential basis, and the Company shall
have no access thereto.
ARTICLE V
Illness or Incapacity
5.1 Right to Terminate. If, during the Term of this Agreement, Employee
shall be unable to perform, with or without a reasonable accommodation, in all
material respects the essential duties of his employment hereunder for a period
exceeding six (6) consecutive months by reason of illness or incapacity, this
Agreement may be terminated by the Company in its sole discretion pursuant to
Section 7.2 hereof.
5.2 Right to Replace. If Employee's illness or incapacity, whether by
physical or mental cause, renders him unable for a minimum period of thirty (30)
consecutive calendar days to carry out his duties and responsibilities as set
forth herein, the Company shall have the right to designate a person to
temporarily perform Employee's duties; provided, however, that if Employee
returns to work from such illness or incapacity within the six (6) month period
following his inability due to such illness or incapacity, he shall be entitled
to be reinstated in the capacity described in Article I hereof with all rights,
duties and privileges attendant thereto.
5.3 Rights Prior to Termination. Employee shall be entitled to his full
base salary under Section 3.1 hereof and full benefits under Section 3.4 hereof
during such illness or incapacity unless and until an election is made by the
Company to terminate this Agreement in accordance with the provisions of this
Article V.
5.4 Determination of Illness or Incapacity. For purposes of this
Article V, the term "illness or incapacity" shall mean Employee's inability to
perform his duties hereunder substantially on a full-time basis due to physical
or mental illness as determined by the Board of Directors, in its reasonable
discretion based upon competent medical evidence. Upon the Company's written
request, Employee shall submit to reasonable medical and other examinations to
provide the evidence required hereunder.
ARTICLE VI
Confidentiality
6.1 Confidentiality. During the Term of this Agreement and for a period
of five (5) years thereafter, Employee agrees to maintain the confidential
nature of the Company's confidential and proprietary trade secrets, including,
without limitation, development ideas, acquisition strategies
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and plans, financial information, records, "know-how", methods of doing
business, customer, supplier and distributor lists and all other confidential
information of the Company. Employee shall not use (other than in connection
with his employment), in any way whatsoever, such trade secrets except as
authorized in writing by the Company. Employee shall, upon the termination of
his employment, deliver to the Company any and all records, books, documents or
any other materials whatsoever (including all copies thereof) containing such
trade secrets which shall be and remain the property of the Company.
6.2 Non-Removal of Records. All documents, papers, materials, notes,
books, correspondence, drawings and other written and graphic records of the
Business of the Company which Employee shall prepare or use, or come into
contact with, shall be and remain the sole property of the Company and,
effective immediately upon the termination of the Employee's employment with the
Company for any reason, shall not be removed from the Company's premises without
the Company's prior written consent.
ARTICLE VII
Termination
7.1 Termination For Cause. This Agreement and the employment of
Employee may be terminated by the Company "For Cause" in any of the following
circumstances:
(a) Employee has committed any fraud, dishonesty,
misappropriation or similar act against the Company; or
(b) Employee is in default in a material respect in the
performance of Employee's obligations, services or duties
hereunder, which shall include, without limitation,
Employee's willfully disregarding the written instructions of
the Chief Executive Officer of the Company concerning the
conduct of his duties hereunder, Employee's conduct which,
after written notice and an opportunity to cure, is
materially inconsistent with the published policies of the
Company, as promulgated from time to time and which are
generally applicable to all employees and/or senior
executives, or Employee's breach of any other material
provision of this Agreement; or
(c) Employee is grossly negligent or engages in willful
misconduct in the performance of his duties hereunder; or
(d) Employee has been adjudicated guilty by, or enters a plea of
guilty or no contest before, a court of competent
jurisdiction of illegal activities or found by a court of
competent jurisdiction to have engaged in other wrongful
conduct which individually, or in the aggregate, has a
material adverse effect on the Company, its prospects,
earnings or financial condition, other than minor traffic
infractions.
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A Termination For Cause under this Section 7.1 shall be effective
upon the date set forth in a written notice of termination delivered to
Employee.
7.2 Termination Without Cause. This Agreement and the employment of the
Employee may be terminated "Without Cause" as follows:
(a) By mutual agreement of the parties hereto; or
(b) At the election of the Company by its giving not less than
thirty (30) days' written notice to Employee; or
(c) At the election of the Company by its giving not less than
thirty (30) days' written notice to Employee in the event of
an illness or incapacity described in Section 5.1; or
(d) At the election of the Employee by his giving not less than
thirty (30) days' written notice to the Company for Good
Reason; or
(e) Upon Employee's death.
"Good Reason" means (i) employee ceasing to be a senior
executive officer of the Company or (ii) a change in employee's reporting
requirements.
A Termination Without Cause under Sections 7.2(b), (c) or (d)
hereof shall be effective upon the date set forth in a written notice of
termination or resignation delivered hereunder, which shall be not less than
thirty (30) days nor more than forty-five (45) days after the giving of such
notice. A Termination Without Cause under Sections 7.2(a) or (e) hereof shall be
automatically effective upon the date of mutual agreement or the date of death
of the Employee, as the case may be.
7.3 Effect of Termination For Cause. If Employee's employment is
terminated For Cause:
(a) Employee shall be entitled to accrued base salary under
Section 3.1 and accrued vacation pay, each through the date
of termination;
(b) Employee shall be entitled to reimbursement for expenses
accrued through the date of termination in accordance with
the provisions of Section 4.1 hereof; and
(c) Except as provided in Article XI, this Agreement shall
thereupon be of no further force and effect.
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7.4 Effect of Termination Without Cause. If Employee's employment is
terminated Without Cause:
(a) Employee shall be entitled to accrued base salary under
Section 3.1 and accrued vacation pay, each through the date
of termination;
(b) Employee shall be entitled to reimbursement for expenses
accrued through the date of termination in accordance with
the provisions of Section 4.1 hereof;
(c) Employee shall be entitled to receive all amounts of base
salary as would have been payable under Section 3.1 (provided
that Employee shall receive not less than twenty-four (24)
months of base salary) through the Scheduled Termination Date
of the applicable term hereof, which amounts shall be paid
upon termination;
(d) Employee shall be entitled to receive all bonuses and
benefits as would have been awarded and/or paid under
Sections 3.2 and 3.4 hereof through (or as a result of events
occurring through) the Scheduled Termination Date, which
benefits shall be awarded as and when the same would have
been awarded under the Agreement had it not been terminated;
and
(e) Except as provided in Article XI, this Agreement shall
thereupon be of no further force or effect.
7.5 Termination Upon Change of Control. Upon a "Change of Control" (as
such term is defined in Section 7.6 hereof) of the Company during the Term
hereof, Employee may, at his sole discretion, declare this Agreement terminated
and receive a one-time, lump sum severance payment equal to two and nine-tenths
(2.9) times the total amount of the annual base salary payable under the terms
of Section 3.1 of this Agreement plus any incentive or bonus paid in the prior
year pursuant to Section 3.2 of this Agreement upon the date of such Change of
Control, if within three (3) years of the Change of Control:
(a) Employee's employment hereunder is terminated prior to the
Scheduled Termination Date of the applicable term hereof
Without Cause; or
(b) Employee elects to terminate his employment with the Company
in the event (i) he is removed from the office which he held
prior to the Change of Control or (ii) the Company fails to
afford Employee the power and authority generally
commensurate with the position of Senior Vice President -
Engineering prior to the Change of Control or (iii) the
Company requires Employee to relocate his residence outside
of Atlanta, Georgia.
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7.6 Change of Control. For purposes of Section 7.5 of this Agreement, a
Change of Control ("Change of Control") shall be deemed to have occurred in the
event of:
(a) The acquisition by any person or entity, or group thereof
acting in concert, of "beneficial" ownership (as such term is
defined in Securities and Exchange Commission ("SEC") Rule
13d-3 under the Securities Exchange Act of 1934, as amended
(the "Exchange Act")), of securities of the Company which,
together with securities previously owned, confer upon such
person, entity or group the voting power, on any matters
brought to a vote of shareholders, of thirty percent (30%) or
more of the then outstanding shares of capital stock of the
Company; or
(b) The sale, assignment or transfer of assets of the Company or
any subsidiary or subsidiaries, in a transaction or series of
transactions, if the aggregate consideration received or to
be received by the Company or any such subsidiary in
connection with such sale, assignment or transfer is greater
than fifty percent (50%) of the book value, determined by the
Company in accordance with generally accepted accounting
principles, of the Company's assets determined on a
consolidated basis immediately before such transaction or the
first of such transactions; or
(c) The merger, consolidation, share exchange or reorganization
of the Company (or one or more subsidiaries of the Company)
as a result of which the holders of all of the shares of
capital stock of the Company as a group would receive less
than fifty percent (50%) of the voting power of the capital
stock or other interests of the surviving or resulting
corporation or entity; or
(d) The adoption of a plan of liquidation or the approval of the
dissolution of the Company; or
(e) The commencement (within the meaning of SEC Rule 14d-2 under
the Exchange Act) of a tender or exchange offer which, if
successful, would result in a Change of Control of the
Company;
(f) A determination by the Board of Directors of the Company, in
view of then current circumstances or impending events, that
a Change of Control of the Company has occurred or is
imminent, which determination shall be made for the specific
purpose of triggering the operative provisions of this
Agreement; or
(g) The Board of Directors is not comprised of a majority of
directors who were either directors as of the date of this
Agreement (the "Initial Directors") or whose nomination or
election was approved by at least a majority of the Initial
Directors or by a majority of directors whose nomination or
election was approved by the Initial Directors.
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7.7 Certain Additional Payments by the Company.
(a) If it shall be determined that any payment, distribution or
benefit received or to be received by Employee from the
Company ("Payments") would be subject to the excise tax
imposed by Section 4999 of the Code (the "Excise Tax"), then
Employee shall be entitled to receive an additional payment
(the "Excise Tax Gross-Up Payment) in an amount such that the
net amount retained by Employee, after the calculation and
deduction of any Excise Tax on the Payments and any federal,
state and local income taxes and excise tax on the Excise Tax
Gross-Up Payment provided for in this Section 7.7, shall be
equal to the Payments. In determining this amount, the amount
of the Excise Tax Gross-Up Payment attributable to federal
income taxes shall be reduced by the maximum reduction in
federal income taxes that could be obtained by the deduction
of the portion of the Excise Tax Gross-Up Payment
attributable to state and local income taxes. Finally, the
Excise Tax Gross-Up Payment shall be reduced by income or
excise tax withholding payments made by the Company or any
affiliate of either to any federal, state or local taxing
authority with respect to the Excise Tax Gross-Up Payment
that was not deducted from compensation payable to Employee.
(b) All determinations required to be made under this Section
7.7, including whether and when an Excise Tax Gross-Up
Payment is required and the amount of such Excise Tax
Gross-Up Payment and the assumptions to be utilized in
arriving at such determination, except as specified in
Section 7.7(a) above, shall be made by the Company's
independent auditors (the "Accounting Firm"), which shall
provide detailed supporting calculations both to the Company
and Employee within 15 business days after Employee provides
the Company with notice that a Payment has been or will be
made or such earlier time as may be required by the Company.
The determination of tax liability made by the Accounting
Firm shall be subject to review by the Employee's tax advisor
and, if Employee's tax advisor does not agree with the
determination reached by the Accounting Firm, then the
Accounting Firm and Employee's tax advisor shall jointly
designate a nationally recognized public accounting firm,
which shall make the determination. All fees and expenses of
the accountants and tax advisors retained by either Employee
or the Company shall be borne by the Company. Any Excise Tax
Gross-Up Payment, as determined pursuant to this Section 7.7,
with respect to a Payment shall be paid by the Company to
Employee at such time as Employee is entitled to receive the
Payment. Any determination by a jointly designated public
accounting firm shall be binding upon the Company and
Employee.
(c) As a result of the uncertainty in the application of
Subsection 4999 of the Code at the time of the initial
determination hereunder, it is possible that Excise Tax
Gross-Up Payments will not have been made by the Company that
should have been made consistent with the calculations
required to be
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made hereunder ("Underpayment"). In the event that Employee
thereafter is required to make a payment of any Excise Tax,
any such Underpayment calculated in accordance with and in
the same manner as the Excise Tax Gross-Up Payment in Section
7.7(a) above shall be promptly paid by the Company to or for
the benefit of Employee. In the event that the Excise Tax
Gross-Up Payment exceeds the amount subsequently determined
to be due, such excess shall constitute a loan from the
Company to Employee payable on the fifth day after demand by
the Company (together with interest at the rate provided in
Section 1274(b)(2)(B) of the Code).
ARTICLE VIII
Non-Competition and Non-Interference
8.1 Non-Competition. Employee agrees that during the Term hereof and,
in the case of a Termination For Cause, for a period of two (2) years
thereafter, Employee will not, directly, indirectly, or as an agent on behalf of
or in conjunction with any person, firm, partnership, corporation or other
entity, own, manage, control, join, or participate in the ownership, management,
operation, or control of, or be financially interested in or advise, lend money
to, or be employed by or provide consulting services to (i) any person or entity
seeking to provide the services or products which the Company provided or
planned on providing as of the date of termination, or (ii) any person or entity
to whom Employee provided services in any capacity on behalf of the Company, or
(iii) any person or entity to whom Employee was introduced or about whom
Employee received information through the Company and which person or entity is
located within the United States of America; provided, however, that the
foregoing restriction regarding financial interest shall not apply to ownership
of less than 5% of the common equity of any entity whose common equity is
registered under the Securities Exchange Act of 1934, as amended.
8.2 Non-Interference. Employee agrees that during the Term hereof and,
in the case of a Termination For Cause, for a period of two (2) years
thereafter, Employee will not, directly or as an agent on behalf of or in
conjunction with any person, firm, partnership, corporation or other entity,
retain or hire any person who was an employee of the Company while Employee was
employed by the Company or to whom Employee was introduced or about whom
Employee received information through the Company.
8.3 Severability. If any covenant or provision contained in this
Article VIII is determined to be void or unenforceable in whole or in part, it
shall not be deemed to affect or impair the validity of any other covenant or
provision. If, in any arbitral or judicial proceeding, a tribunal shall refuse
to enforce all of the separate covenants deemed included in this Article VIII,
then such unenforceable covenants shall be deemed eliminated from the provisions
hereof for the purpose of such proceedings to the extent necessary to permit the
remaining separate covenants to be enforced in such proceedings.
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ARTICLE IX
Remedies
9.1 Equitable Remedies. Employee and the Company agree that the
services to be rendered by Employee pursuant to this Agreement, and the rights
and interests granted and the obligations to be performed by Employee to the
Company pursuant to this Agreement, are of a special, unique, extraordinary and
intellectual character, which gives them a peculiar value, the loss of which
cannot be reasonably or adequately compensated in damages in any action at law,
and that a breach by Employee of any of the terms of this Agreement will cause
the Company great and irreparable injury and damage. Employee hereby expressly
agrees that the Company shall be entitled to the remedies of injunction,
specific performance and other equitable relief to prevent a breach of Articles
VI and VIII of this Agreement, both pendente lite and permanently, against
Employee, as such breach would cause irreparable injury to the Company and a
remedy at law would be inadequate and insufficient. Therefore, the Company may,
in addition to pursuing its other remedies, obtain an injunction from any court
having jurisdiction in the matter restraining any further violation.
9.2 Rights and Remedies Preserved. Nothing in this Agreement except
Section 10.11 shall limit any right or remedy the Company or Employee may have
under this Agreement or pursuant to law for any breach of this Agreement by the
other party. The rights granted to the parties herein are cumulative and the
election of one shall not constitute a waiver of such party's right to assert
all other legal remedies available under the circumstances.
ARTICLE X
Miscellaneous
10.1 No Waivers. The failure of either party to enforce any provision
of this Agreement shall not be construed as a waiver of any such provision, nor
prevent such party thereafter from enforcing such provision or any other
provision of this Agreement.
10.2 Notices. Any notice to be given to the Company and Employee under
the terms of this Agreement may be delivered in person, by telecopy, telex or
other form of written electronic transmission, or by registered or certified
mail, postage prepaid, and shall be addressed as follows:
If to the Company: Z-Tel Technologies, Inc.
000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxx, XX 00000
Attention: Chief Legal Officer
If to Employee: Xxxxx X. Kitchen
000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
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Either party may hereafter notify the other in writing of any change in address.
Any notice shall be deemed duly given (i) when personally delivered, (ii) when
telecopied, telexed or transmitted by other form of written electronic
transmission (upon confirmation of receipt) or (iii) on the third day after it
is mailed by registered or certified mail, postage prepaid, as provided herein.
10.3 Severability. The provisions of this Agreement are severable and
if any provision of this Agreement shall be held to be invalid or otherwise
unenforceable, in whole or in part, the remainder of the provisions, or
enforceable parts thereof, shall not be affected thereby.
10.4 Successors and Assigns. The rights and obligations of the Company
under this Agreement shall inure to the benefit of and be binding upon the
successors and assigns of the Company, including the survivor upon any merger,
consolidation, share exchange or combination of the Company with any other
entity. Employee shall not have the right to assign, delegate or otherwise
transfer any duty or obligation to be performed by him hereunder to any person
or entity.
10.5 Entire Agreement. This Agreement supersedes all prior and
contemporaneous agreements and understandings between the parties hereto, oral
or written, and may not be modified or terminated orally. No modification,
termination or attempted waiver shall be valid unless in writing, signed by the
party against whom such modification, termination or waiver is sought to be
enforced. This Agreement was the subject of negotiation by the parties hereto
and their counsel. The parties agree that no prior drafts of this Agreement
shall be admissible as evidence (whether in any arbitration or court of law) in
any proceeding which involves the interpretation of any provisions of this
Agreement.
10.6 Governing Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of Florida without reference
to the conflict of law principles thereof.
10.7 Section Headings. The section headings contained herein are for
the purposes of convenience only and are not intended to define or limit the
contents of said sections.
10.8 Further Assurances. Each party hereto shall cooperate and shall
take such further action and shall execute and deliver such further documents as
may be reasonably requested by the other party in order to carry out the
provisions and purposes of this Agreement.
10.9 Gender. Whenever the pronouns "he" or "his" are used herein they
shall also be deemed to mean "she" or "hers" or "it" or "its" whenever
applicable. Words in the singular shall be read and construed as though in the
plural and words in the plural shall be read and construed as though in the
singular in all cases where they would so apply.
10.10 Counterparts. This Agreement may be executed in counterparts, all
of which taken together shall be deemed one original.
10.11 Confidential Arbitration. The parties hereto agree that any
dispute concerning or arising out of the provisions of this Agreement shall be
resolved by confidential arbitration in accordance with the rules of the
American Arbitration Association. Such confidential arbitration
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shall be held in Tampa, Florida, and the decision of the arbitrator(s) shall be
conclusive and binding on the parties and shall be enforceable in any court of
competent jurisdiction. The arbitrator may, in his or her discretion, award
attorneys fees and costs to such party as he or she sees fit in rendering his or
her decision. Notwithstanding the foregoing, if any dispute arises hereunder as
to which the Company desires to exercise any rights or remedies under Section
9.1 hereof, the Company may, in its discretion, in lieu of submitting the matter
to arbitration, bring an action thereon in any court of competent jurisdiction
in Tampa, Florida, which court may grant any and all relief available in equity
or at law. In any such action, the prevailing party shall be entitled to
reasonable attorneys' fees and costs as may be awarded by the court.
10.12 Other Agreements. Simultaneously with this Agreement, Employee is
entering into an Indemnity Agreement and Employee Stock Restriction Agreement.
In doing so, Employee has relied on the Company's assurances that the other
senior executives of the Company are entering into identical agreements, except
with respect to title and number of shares. The Company agrees that if it
subsequently amends any of those agreements in a manner favorable to the other
party thereto (other than to change the number of shares covered thereby), it
will offer the same amendment to Employee.
ARTICLE XI
Survival
11.1 Survival. The provisions of Articles VI, VII, VIII, IX and X, of
this Agreement shall survive the termination of this Agreement whether upon, or
prior to, the Scheduled Termination Date hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as of the date first above written.
Z-TEL TECHNOLOGIES, INC.,
a Delaware corporation
By:
-------------------------------------
D. Xxxxxxx Xxxxx, President and
Chief Executive Officer
EMPLOYEE
------------------------------------------
Address: 000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
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