Exhibit 10.7
EXECUTION COPY
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement"), dated as of June 30, 1998
and effective as of the date of the closing of the transactions contemplated by
the Merger Agreement (as defined below) (the "Effective Date"), is made by and
between Pac-West Telecomm, Inc., a California corporation (the "Company"), and
▇▇▇▇ ▇. ▇▇▇▇▇ ("Executive"). Capitalized terms used herein and not otherwise
defined herein have the meanings given to such terms in paragraph 14 hereof.
WHEREAS, the Company desires to employ Executive in the capacity and on
the terms and conditions set forth herein, and Executive desires to accept such
employment in such capacity and on such terms and conditions.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. Employment. The Company shall employ Executive, and Executive hereby
accepts employment with the Company, upon the terms and conditions set forth in
this Agreement for the period beginning on the Effective Date and ending as
provided in paragraph 4 below (the "Employment Period").
2. Position and Duties.
(a) During the Employment Period, Executive shall serve as the
"Executive Vice President - Technology and Network Operations" of the Company
and shall have such duties, responsibilities and authority as set forth herein
and as shall be determined by the Company's Chief Executive Officer. Executive
and the Company hereby agree that Executive's duties shall include, but shall
not be limited to, primary operational management authority with respect to the
following:
(i) the architecture and engineering of the Company's
network;
(ii) the installation and procurement of switch equipment and
project management of growth projects;
(iii) central office switching and circuit and network
maintenance;
(iv) the management of the Company's network facilities
including: circuit and network provisioning and coordination with Local
Exchange Carriers, Interchange Carriers and other transport providers
(LEC's, IXC's, CLEC's);
(v) the management of the Company's network operating and
surveillance center;
(vi) traffic management and routing; and
(vii) cost/utilization performance.
(b) Executive shall report to the Company's Chief Executive Officer,
and Executive shall devote his best efforts and his business time and attention
(on a full-time equivalent basis) to the business and affairs of the Company and
its Subsidiaries. Executive shall perform his duties and responsibilities to the
best of his abilities in a diligent, trustworthy, businesslike and efficient
manner. Executive shall not be required to report to, share authority with or be
supervised by any person who was an employee, consultant or officer of the
Company at or before the time of the merger contemplated by the Merger Agreement
(other than ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇).
3. Compensation and Benefits.
(a) Base Salary. During the Employment Period, Executive's base salary
shall be $350,000 per annum or such higher rate as the Board in its sole
discretion may designate from time to time (the "Base Salary"), which salary
shall be payable in regular installments in accordance with the Company's
general payroll practices and shall be subject to customary withholding and
other customary deductions.
(b) Bonuses. The Board shall award a bonus (the "Annual Bonus") to
Executive in an amount to be determined prior to each fiscal year by the Board
and Executive. The Annual Bonus may be structured, as agreed upon by Executive
and the Board in good faith, to provide for a portion of the Annual Bonus to be
paid upon the achievement by the Company of certain separate specific objectives
with such objectives generally designed to provide Executive with an Annual
Bonus of 40% of the Base Salary in a normal year. The Annual Bonus may exceed
40% of the Base Salary as determined by the Board in its discretion. Such Annual
Bonus shall be payable within 90 days following the end of each fiscal year
during the Employment Period based upon the Company having achieved such
specific objectives for such fiscal year determined by the Board and the
Executive in good faith prior to such fiscal year and based upon the Executive's
performance during such fiscal year.
(c) Benefits.
(i) During the Employment Period, Executive shall be entitled
to participate in all of the Company's employee benefit plans and programs for
which senior executive employees of the Company are generally eligible (subject
to the Company's right to amend, modify or terminate any such plan or program in
accordance with its terms and applicable law and subject in each case to any
applicable waiting periods or other restrictions contained in such benefit plans
or programs), which shall include, but shall not be limited
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to, health insurance, dental insurance and participation in the Company's 401(k)
plan. The Company shall match any contributions made by Executive to the
Company's 401(k) plan to the extent consistent with the Company's past practice
and the terms of such plan and to the extent consistent with applicable law.
(ii) Due to the fact Executive will be required to be on call
continuously for emergency response and to travel extensively by vehicle on
company business, during the Employment Period, the Company shall provide to
Executive a reasonably priced car consistent with the Company's past practice.
Such company car shall be available for Executive's use in a manner consistent
with past practice. Executive acknowledges and agrees that he Company may report
all or a portion of the cost of such car and its operation as additional
compensation to Executive if the Company reasonably believes the same may be
required by applicable income tax law.
(iii) Executive shall be entitled to four (4) weeks of paid
vacation during each year of the Employment Period, in addition to legal
holidays. Vacation thereunder shall accrue from year to year based upon the
Company's then current policy for all employees as established from time to time
by the Board in its sole discretion.
(iv) The Company shall reimburse Executive for all reasonable
expenses incurred by him in the course of performing his duties under this
Agreement which are consistent with the terms of this Agreement and the
Company's policies in effect from time to time with respect to travel,
entertainment and other business expenses, subject to the Company's general
policies with respect to reporting and reasonable documentation of such
expenses.
(d) Stock Options. Executive shall be eligible to participate in the
Company's employee stock option plans and other employee equity incentive plans
for which other senior executive employees of the Company are eligible. The
amount of any awards under such plans to Executive shall be determined by the
Board in its sole discretion.
(e) Location of the Company. During the Employment Period, the
principal place of employment of Executive shall be within a ▇▇-▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, although it is understood that in connection with his
duties under this Agreement, Executive will be required to travel to and perform
services at other locations. In the event the Company moves the principal place
of employment of Executive during the Employment Period to a location other than
such ▇▇-▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, Executive may elect to treat such
event as a termination of the Employment Period by the Company without Cause.
4. Term and Termination.
(a) The Employment Period shall be for a term ending on the second
anniversary of the Effective Date (the "Term"); provided that, notwithstanding
anything in this Agreement to
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the contrary, expressed or implied, or Section 2924 of the California Labor Code
or any similar provision of applicable law, the Employment Period shall
terminate prior to the expiration of the Term upon (i) Executive's resignation
for any reason (with such resignation being effective 30 days after notice
thereof is delivered by Executive to the Company), (ii) Executive's death or
Disability or (iii) termination of Executive's employment by the Company with or
without Cause.
5. Severance.
(a) If the Employment Period is terminated by the Company without
Cause, Executive shall be entitled to receive an amount equal to his Base Salary
at the times set forth in this Agreement for the remainder of the Term plus the
one-year period thereafter (for purposes of this Section 5(a), the "Severance
Period"), so long as Executive has not breached and does not breach the
provisions of any paragraphs 6(a), 6(b) or 12 below during the time period set
forth therein or in the agreement referenced thereby.
(b) If the Employment Period is terminated as a result of Executive's
Disability, Executive and/or his estate or beneficiaries, as the case may be,
shall be entitled to receive benefits under the Company's employee benefit
programs as in effect on the date of such termination to the extent permitted
thereunder and, in addition, shall be entitled to receive (i) an amount equal to
Executive's Base Salary at the times set forth in this Agreement for the
one-year period after the termination of the Employment Period and (ii) the
amount of any Annual Bonus otherwise payable to Executive pursuant to paragraph
3(b) above for the fiscal year in which Executive's employment is terminated,
except that the amount of any such Annual Bonus otherwise payable pursuant to
this paragraph 5(b) shall be pro rated on the basis of the number of days during
such fiscal year that Executive was employed by the Company.
(c) If the Employment Period is terminated as a result of Executive's
death, Executive and/or his estate or beneficiaries, as the case may be, shall
be entitled to receive benefits under the Company's employee benefit programs as
in effect on the date of such termination to the extent permitted thereunder
and, in addition, shall be entitled to receive the amount of any Annual Bonus
otherwise payable to Executive pursuant to paragraph 3(b) above for the fiscal
year in which Executive's employment is terminated, except that the amount of
any such Annual Bonus otherwise payable pursuant to this paragraph 5(b) shall be
pro rated on the basis of the number of days during such fiscal year that
Executive was employed by the Company.
(d) If the Employment Period is terminated by the Company for Cause or
if Executive resigns for any reason (other than any resignation deemed to be a
termination without Cause pursuant to paragraph 3(e) hereof), Executive shall be
entitled to receive his Base Salary through the date of termination and the
Company shall have no further liability whatsoever to Executive.
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(e) Except as otherwise expressly provided herein or as expressly
required under Section 4980B of the Internal Revenue Code of 1986, as amended,
all of Executive's rights to fringe benefits and bonuses hereunder shall cease
upon termination of the Employment Period.
6. Confidential Information: Nonsolicitation.
(a) Executive agrees to execute on the Effective Date and to be bound
as of the Effective Date by the terms of the Company's form of confidentiality
agreement attached hereto as Exhibit A.
(b) Executive agrees that until the later of (1) the second anniversary
of the Effective Date or (2) the date which is 180 days after the termination of
the Employment Period, he shall not directly, or indirectly through another
Person, (i) induce or attempt to induce any employee of the Company or any of
its Subsidiaries to leave the employ of the Company or such Subsidiary, or in
any way interfere with the relationship between the Company or any of its
Subsidiaries and any employee thereof, (ii) hire any person who was an employee
of the Company or any of its Subsidiaries at any time during the 180-day period
immediately prior to the date on which such hiring would take place (it being
conclusively presumed by the Company and Executive so as to avoid any disputes
under this paragraph 6(b) that such hiring within such 180-day period is in
violation of clause (i) above), or (iii) call on, solicit or service any
customer, supplier, licensee, licensor or other business relation of the Company
or any of its Subsidiaries in order to induce or attempt to induce such Person
to cease doing business with the Company or such Subsidiary. In addition, during
the Employment Period and thereafter, Executive shall not in any way interfere
with the relationship between any such customer, supplier, licensee or business
relation and the Company or any of its Subsidiaries (including making any
negative statements or communications about the Company or any of its
Subsidiaries).
7. Company's Ownership of Intellectual Property.
(a) Executive acknowledges that all Work Product is the exclusive
property of the Company. Executive hereby assigns all right, title and interest
and to such Work Product to the Company. Any copyrightable work prepared in
whole or in part by Executive will be deemed "a work made for hire" under
Section 201(b) of the 1976 Copyright Act, and the Company shall own all of the
rights comprised in the copyright therein.
(b) The Company and Executive each acknowledge the applicability of
Section 2870 of the California Labor Code. Accordingly, the provisions of
paragraph 7(a) shall not apply to, and the term "Work Product" shall not
include, any invention that Executive developed entirely on his own time without
using the Company's equipment, supplies, facilities, or trade secret information
except for those inventions that either: (i) relate at the time of conception or
reduction to practice of the invention to the Company's or any Subsidiary's
business, or to the actual or demonstrably anticipated research or development
of the Company or any Subsidiary; or (ii) result from any work performed by
Executive for the Company or any Subsidiary. Set forth on the
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attached "Excluded Inventions Schedule" are the inventions Executive believes
meet the criteria for exclusion set forth above. Executive agrees to promptly
advise the Company in writing or any inventions developed after the Effective
Date which Executive believes meet the criteria for exclusion set forth above.
(c) Executive shall promptly and fully disclose all Work Product to the
Company and shall cooperate and perform all actions reasonably requested by the
Company (whether during or after the Employment Period) to establish, confirm
and protect the Company's right, title and interest in such Work Product.
Without limiting the generality of the foregoing, Executive agrees to assist the
Company, at the Company's expense, to secure the Company's rights in the Work
Product in any and all countries, including the execution of all applications
and all other instruments and documents which the Company shall deem necessary
in order to apply for and obtain rights in such Work Product and in order to
assign and convey to the Company the sole and exclusive right, title and
interest in and to such Work Product. If the Company is unable because of
Executive's mental or physical incapacity or for any other reason (including
Executive's refusal to do so after request therefor is made by the Company) to
secure Executive's signature to apply for or to pursue any application for any
United States or foreign patents or copyright registrations covering Work
Product belonging or assigned to the Company pursuant to paragraph 7(a) above,
then Executive hereby irrevocably designates and appoints the Company and its
duly authorized officers and agents as Executive's agent and attorney-in-fact to
act for and in Executive's behalf and stead to execute and file any such
applications and to do all other lawfully permitted acts to further the
prosecution and issuance of patents or copyright registrations thereon with the
same legal force and effect as if executed by Executive. Executive agrees not to
apply for or pursue any application for any United States or foreign patents or
copyright registrations covering any Work Product other than pursuant to this
paragraph in circumstances where such patents or copyright registrations are or
have been or are required to be assigned to the Company.
8. Delivery of Materials Upon Termination of Employment. As requested
by the Company upon the termination of Executive's employment with the Company
for nay reason, Executive shall promptly deliver to the Company all copies and
embodiments, in whatever form, of all Confidential information and Work Product
in Executive's possession or within his control irrespective of the location or
form of such material and, if requested by the Company, shall provide the
Company with written confirmation that all such materials have been delivered to
the Company.
9. Subsequent Inventions. Executive understands and agrees that all
Intellectual Property Rights made, conceived, developed, or reduced to practice
by Executive, either alone or jointly with others, shall be disclosed to the
Company by Executive for six (6) months following the termination of the
Employment Period. Employee further agrees that all Intellectual Property Rights
made, conceived, developed or reduced to practice within six (6) months
following such termination shall be presumed to have been conceived during
Executive's employment with the Company and with the use of the Company's
Confidential Information, but such presumption may be overcome by Executive by a
showing that such Intellectual Property Rights were conceived after the
Employment Period and without the use of any such Confidential Information. In
the event
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Executive is not able to rebut such presumption and prove that such Intellectual
Property Rights were conceived after the Employment Period and without the use
of Confidential Information, Executive agrees to assign all right, title and
interest in such Intellectual Property Rights to the Company.
10. Disclosure. Following the termination of the Employment Period,
Executive shall communicate the restrictions contained in this Agreement to any
Person he intends to be employed by, provide consulting services to or otherwise
represent. Executive hereby consents to the Company's communication of the
restrictions contained in this Agreement to any such Person.
11. Enforcement Remedies.
(a) If at the time of enforcement of the covenants contained in
paragraphs 6, 7, 8, 9 or 10 (the "Protective Covenants"), a court shall hold
that the duration or scope stated therein are unreasonable under circumstances
then existing, the parties hereto agree that the maximum duration or scope
reasonable under such circumstances shall be substituted for the stated duration
or scope and that the court shall be allowed to revise the restrictions
contained therein to cover the maximum period or scope permitted by law.
Executive has consulted legal counsel regarding the Protective Covenants and
based on such consultation has determined and hereby acknowledges that the
Protective Covenants are reasonable in terms of duration and scope and are
necessary to protect the goodwill of the Company's business and the Confidential
Information. Executive further agrees that the Protective Covenants were a
material inducement to certain investors of the Company to enter into the Merger
Agreement and consummate the transactions contemplated hereby, and such
investors would not obtain the benefit of the bargain as set forth in the Merger
Agreement and the other agreements contemplated thereby if Executive breached or
challenged the validity of any of the Protective Covenants.
(b) If Executive breaches, or threatens to commit a breach of, any of
the Protective Covenants, the Company shall have the Following rights and
remedies, each of which rights and remedies shall be independent of the others
and severally enforceable, and each which is in addition to, not in lieu of, any
other rights and remedies available to the Company at law or in equity:
(i) the right and remedy to have the Protective Covenants
specifically enforced by any court of competent jurisdiction (without
the need to post a bond or other security), it being agreed that any
breach or threatened breach of the Protective Covenants would cause
irreparable injury to the Company and that money damages would not
provide an adequate remedy to the Company; and
((ii) the right and remedy to require Executive to account for
and pay over the Company any profits, monies, accruals, increments or
other benefits derived or received by Executive as the result of any
transaction(s) constituting a breach of the Protective Covenants.
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(c) In the event of any breach or violation by Executive of any of the
Protective Covenants, the time period of such covenant with respect to Executive
(to the extent such covenant is limited in duration) shall be tolled until such
breach or violation is resolved.
12. Noncompetition. Executive acknowledges and agrees that he is
subject to and bound by the noncompetition provisions of Section 11.6 of the
Merger Agreement as result of Executive's sale of the capital stock and the
goodwill of the Company thereunder. Executive further acknowledges and agrees
that the provisions of such Section 11.6 of the Merger Agreement were entered
into as a result of the sale of the Company's capital stock and goodwill
thereunder and not as a direct or indirect result of Executive's employment
relationship with the Company.
13. Executive's Representattions. Executive hereby represents and
warrants to the Company that (a) the execution, delivery and performance of this
Agreement by Executive do not and shall not conflict with, breach, violate or
cause a default under any contract, agreement, instrument, order, judgment or
decree to which Executive is a party or by which he is bound, (b) Executive is
not a party to or bound by any employment agreement, noncompete agreement or
confidentiality agreement with any other person or entity, except pursuant to
and as disclosed in Schedules to the Merger Agreement and (c) upon the execution
and delivery of this Agreement by the Company, this Agreement shall be the valid
and binding obligation of Executive, enforceable in accordance with its terms.
Executive hereby acknowledges and represents that he has consulted with
independent legal counsel regarding his rights and obligations under this
Agreement and that he fully understands the terms and conditions contained
herein.
14. Definitions.
"Affiliate" of any particular Person means any other Person
controlling, controlled by or under common control with such particular Person,
where "control" means the possession, directly or indirectly, of the power to
direct the management and policies of a Person whether through the ownership of
voting securities, contract or otherwise.
"Cause" means (A) Executive's theft or embezzlement, or attempted theft
or embezzlement, of money or property of the Company or any of its Affiliates,
Executive's perpetration or attempted perpetration of fraud, or Executive's
participation in a fraud or attempted fraud, on the Company or any of its
Affiliates or Executive's unauthorized appropriation of, or Executive's attempt
to misappropriate, any tangible or intangible assets or property of the Company
or any of its Affiliates; (B) Executive's conviction for commission of a felony
or conviction for any crime involving acts which tend to insult or offend
community moral standards or public decency or that materially and adversely
affect the reputation or business activities of the Company or its Affiliates;
(C) Executive's substance abuse, including abuse of alcohol or use of illegal
narcotics, or other illegal drugs or substances, for which Executive fails to
undertake and maintain treatment within 15 days after requested by the
Corporation; (D) Executive's refusal to carry out the lawful instructions of the
Board following receipt of written notice of such instructions from the Board;
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or (E) Executive's material breach of any provision of this Agreement which is
incapable of cure or which is not cured within 15 days after written notice
thereof to Executive.
"Confidential Information" means all information of a confidential or
proprietary nature (whether or not specially labeled or identified as
"confidential"), in any form or medium, that is or was disclosed to, or
developed or learned by, Executive in connection with Executive's prior
relationship with the Company or during the Employment Period and that relates
to the business, products, services, research or development of the Company or
its suppliers, distributors or customers. Confidential information includes but
is not limited to the following: (i) internal business information (including
information relating to strategic and staffing plans and practices, business,
training, marketing, promotional and sales plans and practices, cost, rate and
pricing structures and accounting and business methods); (ii) identities of,
individual requirements of, specific contractual arrangements with and
information about, the Company's suppliers, distributors and customers and their
confidential information; (iii) trade secrets, know-how, compilations of data
and analyses, techniques, systems, formulae, research, records, reports,
manuals, documentation, models, data and data bases relating thereto; and (iv)
inventions, innovations, improvements, developments, methods, designs, analyses,
drawings, reports and all similar or related information (whether or not
patentable). Confidential Information shall not include information that
Executive can demonstrate: (a) publicly known through no wrongful act or breach
of obligation of confidentiality; (b) was lawfully known to Executive prior to
the time Executive began rendering services to the Company and its predecessors;
or (c) was rightfully received by Executive from a third party without breach of
any obligation of confidentiality by such third party.
"Disability " means the inability, due to illness, accident, injury,
physical or mental incapacity or other disability, of Executive to carry out
effectively his duties and obligations to the Company or to participate
effectively and actively in the management of the Company for a period of at
least 180 consecutive days or of shorter periods aggregating at least 180 days
(whether or not consecutive) during any twelve-month period, as determined in
the reasonable good faith judgment of the Board.
"Intellectual Property Rules" means all inventions, innovations,
improvements, developments, methods, processes, designs, analyses, drawings,
reports and all similar or related information (whether or not patentable or
reduced to practice) and any copyrightable work, trade ▇▇▇▇, trade secret or
other intellectual property rights which relate to the Company's or any of its
Subsidiaries actual or anticipated business.
"Merger Agreement" means that certain Agreement and Plan of Merger,
dated as of the date hereof, by and among the Company, Executive and other
parties signatory thereto, as amended and modified from time to time in
accordance with its terms.
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
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"Subsidiary" means, with respect to any Person, any corporation,
limited liability company, partnership, association or other business entity of
which (i) if a corporation, a majority of the total voting power of shares of
stock entitled (without regard to the occurrence of any contingency) to vote in
the election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof, or (ii) if a limited
liability company, partnership, association or other business entity, a majority
of the partnership or other similar ownership interest thereof is at the time
owned or controlled, directly or indirectly by that Person or one or more
Subsidiaries of that Person or a combination thereof. For purposes hereof, a
Person or Persons shall be deemed to have a majority ownership interest in a
limited liability company, partnership, association or other business entity if
such Person or Persons shall be allocated a majority of limited liability
company, partnership, association or other business entity gains or losses or
shall be or control any managing director or general partner of such limited
liability company, partnership, association or other business entity.
"Work Product" means all inventions, innovations, improvements,
developments, methods, processes, designs, analyses, drawings, reports, research
and development of existing or future products or services which were or are
conceived, reduced to practice, contributed to or developed or made by Executive
(whether alone or jointly with others) while employed (both before and after the
Effective Date) by the Company (or its predecessors, successors or assigns) and
its Subsidiaries and all similar or related information (whether or not
patentable or reduced to practice) and any copyrightable work; trade ▇▇▇▇, trade
secret or other intellectual property rights, any of which relate to the
Company's or any of its Subsidiaries' actual or anticipated business.
15. Survival. The provisions set forth in paragraphs 5 through 24 of
this Agreement shall survive and continue in full force and effect in accordance
with their terms notwithstanding any termination of the Employment Period.
16. Notices. Any notice provided for in this Agreement shall be deemed
to have been given when delivered personally to the recipient, sent to the
recipient by reputable express courier (charges prepaid), telecopied (with hard
copy to follow) or mailed to the recipient by certified or registered mail,
return receipt requested and postage prepaid. Such notice will be sent to
Executive or to the Company at the address set forth below:
Notices to Executive:
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▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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Notices to the Company
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Pac-West Telecomm, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement shall be deemed to have been given when so delivered
or mailed.
17. Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein. The
Executive acknowledges and agrees that the covenants and agreements set forth in
this agreement were a material inducement to certain investors of the Company to
enter into the Merger Agreement and consummate the transactions contemplated
thereby, and such investors would not obtain the benefit of their bargain as set
forth in the Merger Agreement and the other agreements contemplated thereby as
specifically negotiated by the investors if Executive breached or challenged any
of the provisions of this Agreement. Therefore, notwithstanding anything to the
contrary expressed or implied in this paragraph 17 or elsewhere in this
Agreement, the Executive unconditionally covenants and agrees that Executive
will not directly or indirectly challenge the validity, legality or
enforceability of any provision of this Agreement.
18. Complete Agreement. This Agreement and the Merger Agreement embody
the complete agreement and understanding among the parties and supersede and
preempt any prior understandings, agreements or representations by or among the
parties, written or oral, which may have related to the subject matter hereof in
any way.
19. No Strict Construction. The language used in this Agreement shall
be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction shall be applied against any
party. The use of the word "including" herein shall mean "including without
limitation."
20. Counterparts. This Agreement may be executed in separate
counterparts including by means of telecopies signature pages), each of which is
deemed to be an original and all of which taken together constitute one and the
same agreement.
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21. Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of and be enforceable by Executive, the Company and
their respective heirs, successors and assigns, except that Executive may not
assign his rights or delegate his obligations hereunder without the prior
written consent of the Company.
22. Choice of Law. All issues and questions concerning the
construction, validity, enforcement and interpretation of this Agreement and any
schedules shall be governed by, and construed in accordance with, the laws of
California, without giving effect to any choice of law or conflict of law rules
or provisions (whether of the State of California or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than the
State of California.
23. Consent to Personal Jurisdiction. Executive hereby expressly
consents to the nonexclusive personal jurisdiction and venue of the state and
federal courts located in the federal Northern District of California for any
lawsuit filed against Executive by the Company arising from or relating to this
Agreement.
24. Amendment and Waiver. The provisions of this Agreement may be
amended or waived only with the prior written consent of the Company and
Executive, and no course of conduct or failure or delay in enforcing the
provisions of this Agreement shall affect the validity., binding effect or
enforceability of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement on the date first written above.
PAC-WEST TELECOMM, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇ ▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇ ▇▇▇
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Its: President
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By:
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Name:
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Its:
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/s/ ▇▇▇▇ ▇. ▇▇ ▇▇▇
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▇▇▇▇ ▇. ▇▇ ▇▇▇
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EXCLUDED INVENTIONS SCHEDULE
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None
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