JATO COMMUNICATIONS CORP.
AMENDED AND RESTATED FOUNDERS EMPLOYMENT TRANSITION AND SEPARATION AGREEMENT
FOR
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
THIS AMENDED AND RESTATED FOUNDERS EMPLOYMENT TRANSITION AND SEPARATION
AGREEMENT ("AGREEMENT") is entered into as of the 3rd day of April, 2000,
("Execution Date") by and between ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇") and JATO
COMMUNICATIONS CORP., a Delaware corporation (the "Company").
RECITALS
WHEREAS, ▇▇. ▇▇▇▇▇▇ has been employed by the Company as its Executive
Vice President, Sales; and
WHEREAS, the Company and ▇▇. ▇▇▇▇▇▇ are parties to an employment
agreement dated April 16, 1999; and
WHEREAS, the Company has materially reduced the job responsibilities of
▇▇. ▇▇▇▇▇▇; and
WHEREAS, as a result of the material reduction of his job
responsibilities, ▇▇. ▇▇▇▇▇▇ has tendered his resignation with the Company under
the terms and conditions hereinafter set forth; and
WHEREAS, the Company and ▇▇. ▇▇▇▇▇▇ entered into a Founder Employment
Transition and Separation Agreement dated February 10, 2000; and
WHEREAS, the Company has accepted ▇▇. ▇▇▇▇▇▇'▇ resignation as Executive
Vice President, Sales; and
WHEREAS, the Company and ▇▇. ▇▇▇▇▇▇ desire to replace the terms of the
April 16, 1999 Employment Agreement; and
WHEREAS, the Company and ▇▇. ▇▇▇▇▇▇ desire to amend and restated in its
entirety the Founders Employment Transition and Separation Agreement dated
February 10, 2000 with this Agreement; and
WHEREAS, the Company wishes to employ ▇▇. ▇▇▇▇▇▇ in the capacity and
under the terms and conditions hereinafter set forth, and ▇▇. ▇▇▇▇▇▇ is willing
to be so employed by the Company.
1.
NOW, THEREFORE, in consideration of the recitals set forth above that
are incorporated by reference herein and the mutual promises and covenants
contained herein, it is hereby agreed by and between the parties hereto as
follows:
AGREEMENT
1. RESIGNATION. ▇▇. ▇▇▇▇▇▇ has tendered and the Company has accepted ▇▇.
▇▇▇▇▇▇'▇ resignation as Executive Vice President, Sales and any and all other
positions he may have held with the Company or any affiliates or subsidiaries of
the Company.
2. CONTINUED EMPLOYMENT BY THE COMPANY. ▇▇. ▇▇▇▇▇▇ will continue as an
employee of the Company until such time as his employment is terminated as set
forth in paragraph 6 herein. From the Execution Date through the Separation
Date, as defined in paragraph 6 below, ▇▇. ▇▇▇▇▇▇ shall be available to provide
such services as are requested by the Company's Board of Directors.
2.1 COMPENSATION. The Company agrees to continue to compensate ▇▇.
▇▇▇▇▇▇ at the same rate of regular salary he received as of the Execution Date,
less all applicable deductions and withholdings, payable on a semi-monthly basis
or in accordance with the Company's customary practices (as they may be changed
by the Company from time to time in its sole discretion).
2.2 BENEFITS. The Company shall continue to make available to ▇▇.
▇▇▇▇▇▇ all Company benefits available and received by ▇▇. ▇▇▇▇▇▇ immediately
before the Execution Date. Notwithstanding the prior sentence, ▇▇. ▇▇▇▇▇▇ agrees
and acknowledges that from the Execution Date through the Separation Date, ▇▇.
▇▇▇▇▇▇ is not entitled to nor will he accrue any vacation time, holiday leave or
sick leave.
2.3 RESTRICTED STOCK. As of the Execution Date, ▇▇. ▇▇▇▇▇▇ owns or
is deemed to be the beneficial owner of 3,007,228 shares of Common Stock, of
which 902,168 were vested and 2,105,060 were not yet vested. Unless ▇▇. ▇▇▇▇▇▇
voluntarily resigns as an employee or is terminated for Cause (as defined in the
Employment Agreement) prior to such date, the 2,105,060 unvested shares will
vest the earlier of the Company's initial public offering or in two equal
installments, the first installment of 1,052,530 shares on March 31, 2000 and
the second installment of 1,052,530 shares on June 30, 2000. All shares of
Common Stock in this Agreement, unless otherwise noted, reflect a 1.407 for 1
forward stock split to take effect on or around March 29, 2000.
2.4 VOLUME LIMITATION. Should the Company launch an initial
public offering ("IPO"), the Company shall sell all shares to be sold in the
IPO, excluding those shares to be sold pursuant to the exercise, if any, of
the underwriters' over-allotment option to purchase additional shares of
common stock within 30 days from the date of the final prospectus pertaining
to the Company's IPO (the "Green Shoe"). The Company and ▇▇. ▇▇▇▇▇▇ agree,
that should the Green Shoe be exercised, all shares to be sold pursuant to
the underwriters' exercise of the Green Shoe, shall be those shares held by
the Founders (for purposes herein the term "Founders" refers to ▇▇▇▇▇ ▇.
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇). ▇▇. ▇▇▇▇▇▇ and the other Founders
have executed a lockup agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. and other
representatives of the
underwriters (the "▇▇▇▇▇▇▇ ▇▇▇▇▇ Lockup"). The Company acknowledges that it
is not a party to the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Lockup and that it shall not have any
rights to enforce the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Lockup. Separate and apart from the
▇▇▇▇▇▇▇ ▇▇▇▇▇ Lockup, ▇▇. ▇▇▇▇▇▇ and the other Founders agree that the number
of shares the Founders can sell during the 180 day period following the date
which is 180 days from the date of the Purchase Agreement related to the IPO
(the "Additional Lockup"), will be limited (the "Volume Limitation Period").
The terms of the Volume Limitation Period are as follows:
(a) The Founders will be limited to the sale of an
aggregate of 2,462,250 shares during the Volume Limitation Period. The Founders
shall be solely responsible for allocating the number of shares each Founder
will be permitted to sell during the Volume Limitation Period. Shares sold under
this provision may be sold in only broadly distributed underwritten public
offerings or normal Rule 144 open market transactions.
(b) As long as ▇▇. ▇▇▇▇▇▇ maintains ownership in the
Company ▇▇. ▇▇▇▇▇▇ shall also be bound by the following restrictions:
(i) to not knowingly sell his shares of the
Company stock to a person or group who, as a result of such sale, would own 5%
or more of the Company's outstanding stock or to directly or indirectly solicit
any person or group to purchase from him or any other Founder shares in the
Company if such person or group, as a result of such purchase, would own 5% or
more of the Company's outstanding stock; and
(ii) to not knowingly sell his shares of the
Company stock to a Company competitor (as defined in paragraph 8.1) or to
directly or indirectly solicit any competitor (as defined in paragraph 8.1) to
purchase from him shares in the Company; and
(iii) to not engage in, or support, a hostile
proxy solicitation.
2.5 VACATION PAY-OUT. The parties agree that on the Separation
Date the accrued but unused vacation shall be 20 days.
2.6 SEPARATION AND RELEASE AGREEMENT. As part of this Agreement,
▇▇. ▇▇▇▇▇▇ agrees to enter into the Separation and Release Agreement attached
hereto as Exhibit B, within the time set forth in said Separation and Release
Agreement.
3. POLICIES AND PROCEDURES. ▇▇. ▇▇▇▇▇▇ agrees that he is subject to and
will comply with the policies and procedures of the Company, as such policies
and procedures may be modified, added to or eliminated from time to time at the
sole discretion of the Company Board of Directors, except to the extent any such
policy or procedure specifically conflicts with the express terms of this
Agreement. ▇▇. ▇▇▇▇▇▇ further agrees and acknowledges that any written or oral
policies and procedures of the Company do not constitute contracts between the
Company and ▇▇. ▇▇▇▇▇▇.
4. PROPRIETARY INFORMATION OBLIGATIONS.
4.1 AGREEMENT. Except as set forth herein, ▇▇. ▇▇▇▇▇▇ agrees to
continue to abide by ▇▇. ▇▇▇▇▇▇'▇ previously executed Non-Competition,
Proprietary Information and Inventions Agreement attached hereto as EXHIBIT A.
4.2 REMEDIES. ▇▇. ▇▇▇▇▇▇'▇ duties under the Non-Competition,
Proprietary Information and Inventions Agreement shall survive termination of
his employment with the
Company. ▇▇. ▇▇▇▇▇▇ acknowledges that a remedy at law for any breach or
threatened breach by him of the provisions of the Non-competition, Proprietary
Information and Inventions Agreement would be inadequate, and he therefore
agrees that the Company shall be entitled to injunctive relief in case of any
such breach or threatened breach. By seeking injunctive relief the Company does
not waive any other rights or remedies it may have.
5. OUTSIDE ACTIVITIES. Except with the prior written consent of the
Company's Board of Directors, ▇▇. ▇▇▇▇▇▇ will not, from the Execution Date
through the Separation Date, undertake or engage in any other employment,
occupation or business enterprise, other than those in which ▇▇. ▇▇▇▇▇▇ is a
passive investor, non-executive board member or which takes less than 10% of ▇▇.
▇▇▇▇▇▇'▇ business time. ▇▇. ▇▇▇▇▇▇ may engage in civic and not-for-profit
activities so long as such activities do not materially interfere with the
performance of his duties hereunder.
6. TERMINATION OF EMPLOYMENT. Either ▇▇. ▇▇▇▇▇▇ or the Company may
terminate the employment relationship at any time for any reason whatsoever,
with thirty (30) days prior written notice by the Company and with thirty (30)
days' prior written notice by ▇▇. ▇▇▇▇▇▇ with or without Cause or advance
notice. This at-will employment relationship cannot be changed except in a
writing approved by the Board. Notwithstanding this at-will employment
relationship, ▇▇. ▇▇▇▇▇▇'▇ employment with the Company shall automatically
terminate upon the earlier of the closing of the Company's initial public
offering or on June 30, 2000. Whether terminated for cause, without cause,
automatically as provided in the previous sentence or voluntarily terminated by
▇▇. ▇▇▇▇▇▇, such termination is defined herein as the "Separation Date." ▇▇.
▇▇▇▇▇▇ shall remain as a member of the Board of Directors of the Company and a
member of the Board of Directors of any affiliates or subsidiaries of the
Company until June 30, 2000. On June 30, 2000, ▇▇. ▇▇▇▇▇▇ agrees to tender his
resignation from the Board of Directors of the Company and from the Board of
Directors of any affiliates or subsidiaries of the Company.
6.1 SEVERANCE PAYMENT. If the Company terminates ▇▇. ▇▇▇▇▇▇'▇
employment without Cause at any time or if ▇▇. ▇▇▇▇▇▇ employment terminates
automatically as set forth in paragraph 6 herein, ▇▇. ▇▇▇▇▇▇ will receive as
severance: (i) a lump sum payment equal to one (1) year of base salary, less
payroll deductions and required withholdings pursuant to the Separation
Agreement attached as Exhibit B, (ii) a lump sum payment of that portion of the
bonus ▇▇. ▇▇▇▇▇▇ is entitled to for the calendar year pro-rated based upon the
number of full months ▇▇. ▇▇▇▇▇▇ was employed in such year pursuant to the
Separation Agreement attached as Exhibit B, (iii) continuation of all Company
Benefits for a period of one (1) year pursuant to the Separation Agreement
attached as Exhibit B, and (iv) termination of all repurchase rights on ▇▇.
▇▇▇▇▇▇'▇ stock, in exchange for the execution of a release of all claims against
the Company in the form attached as Exhibit B; PROVIDED, THAT, in the event of
termination due to Disability, this subsection (iv) shall apply only with
respect to 50% of any unvested stock held by ▇▇. ▇▇▇▇▇▇ on the date of
termination and with respect to the waiver of repurchase rights of 50% of any
unvested shares held by ▇▇. ▇▇▇▇▇▇ on the date of termination; PROVIDED,
FURTHER, that ▇▇. ▇▇▇▇▇▇ shall remain a party to, and subject to the provisions
of, the Investors' Rights Agreement. If ▇▇. ▇▇▇▇▇▇ voluntarily resigns or if ▇▇.
▇▇▇▇▇▇'▇ employment is terminated for Cause, all compensation and benefits will
cease immediately and ▇▇. ▇▇▇▇▇▇ will receive no severance benefits.
6.2 CAUSE. For purposes of this Agreement, "CAUSE" shall mean
misconduct, including: (i) conviction of any felony or any crime involving moral
turpitude or dishonesty; (ii) participation in a fraud or act of dishonesty
against the Company; (iii) willful breach of the Company's policies; (iv)
intentional damage to the Company's property; (v) material breach of this
Agreement or ▇▇. ▇▇▇▇▇▇'▇ Proprietary Information and Inventions Agreement; (vi)
a failure or refusal in a material respect of ▇▇. ▇▇▇▇▇▇ to follow the
reasonable policies or directions of the Company as specified by the Board of
Directors after being provided with notice of such failure and an opportunity to
cure within seven (7) days of receipt of such notice; or (vii) failure to carry
out the duties of the ▇▇. ▇▇▇▇▇▇'▇ position after being provided with notice of
such failure and an opportunity to cure. Disability shall not constitute
"Cause."
6.3 DISABILITY. For purposes of this Agreement, "DISABILITY" shall
mean a disability that prevents ▇▇. ▇▇▇▇▇▇ from substantially performing his
duties under this Agreement for a period of at least 90 consecutive days or 180
non-consecutive days within any 365-day period.
6.4 DEATH. In the event of death, the Company shall pay to ▇▇.
▇▇▇▇▇▇'▇ estate any earned but unpaid salary at the time of death and, at the
time such amount would otherwise have been due, a pro rata portion of a
discretionary bonus, if any, which may otherwise have been paid to ▇▇. ▇▇▇▇▇▇
with respect to the annual period in which the death occurs. Furthermore, the
Company shall waive its repurchase rights with respect to 50% of any unvested
shares as of the date of death; PROVIDED, HOWEVER, that ▇▇. ▇▇▇▇▇▇'▇ estate,
administrator or distributor shall become a party to, and be subject to the
provisions of, the Investors' Rights Agreement. In addition, the acceleration
provisions set forth in paragraph 2.3 herein shall remain in effect, PROVIDED,
HOWEVER, that ▇▇. ▇▇▇▇▇▇'▇ estate, administrator or distributor shall become a
party to, and be subject to the provisions of, this Agreement.
7. BUSINESS EXPENSE REIMBURSEMENT. The Company agrees to reimburse ▇▇.
▇▇▇▇▇▇ for those reasonable business expenses he necessarily incurs in his
capacity as a Company employee and member of the Board of Directors consistent
with the Company's policies in this regard. ▇▇. ▇▇▇▇▇▇ must submit the necessary
documentation establishing the amount, date and reason for expenses he incurred
and for which he seeks reimbursement.
8. NON-COMPETITION AND NON-SOLICITATION. ▇▇. ▇▇▇▇▇▇ acknowledges that
prior to the Separation Date, the Company employed him, among other things, as a
member of executive and management personnel. ▇▇. ▇▇▇▇▇▇ further acknowledges
that during his employment at the Company, he was and will be privy to extremely
sensitive, confidential and valuable commercial information, which constitutes
trade secrets belonging to the Company, the disclosure of which information and
secrets would greatly harm the Company.
8.1 NON-COMPETITION COVENANT. As a reasonable measure to protect
the Company from the harm of such disclosure and use of its information and
trade secrets against it, ▇▇. ▇▇▇▇▇▇ agrees to the following as part of this
Agreement: ▇▇. ▇▇▇▇▇▇ agrees that he shall not, individually or together with
others, directly or indirectly, during his employment with the Company and for a
period of twelve (12) months from the Separation Date, for any reason, whether
as an owner, consultant, partner, joint venturer, stockholder, broker, agent,
financial agent, principal, trustee, licensor or in any other capacity
whatsoever, own, manage, operate, join, control, finance or participate in the
ownership, management, operation, control or
financing of, or be connected as an officer, director, employee, partner,
principal, agent, representative, consultant, licensor, licensee or otherwise
with, any business or enterprise in any city, county, or state of the United
States, or any other ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, country, or jurisdiction,
which provides high speed data transmission services in a market in which the
Company has at least one (1) operational DSLAM or at least one (1) central
office location under construction as of the Separation Date. An acquisition or
ownership of less than 5% of the outstanding shares of any publicly traded
company will not constitute a violation of this Agreement.
8.2 NON-SOLICITATION COVENANT. As a reasonable measure to protect
the Company from the harm of such disclosure and use of its information and
trade secrets against it, the parties agree to the following as part of this
Agreement: ▇▇. ▇▇▇▇▇▇ acknowledges and agrees that information regarding
employees of the Company is Confidential Information, including without
limitation, the names of the Company employees; information regarding the skills
and knowledge of employees of the Company; information regarding any past,
present, or intended compensation, benefits, policies and incentives for
employees of the Company; and information regarding the management and reporting
structure of the Company. ▇▇. ▇▇▇▇▇▇ agrees that he will not, individually or
with others, directly or indirectly (including without limitation, individually
or through any business, venture, proprietorship, partnership, or corporation in
which they control or own more than a five (5) percent interest, through any
agents, through any contractors, through recruiters, by their successors, by
their employees, or by their assigns) hire, solicit, or induce any employee of
the Company to leave the Company during the period ▇▇. ▇▇▇▇▇▇ is employed by the
Company and for a period of twelve (12) months from the Separation Date. ▇▇.
▇▇▇▇▇▇ further agrees that during the period he is employed by the Company and
for a period of twelve (12) months from the Separation Date, he will not, either
directly or indirectly, solicit or attempt to solicit any customer, client,
supplier, investor, vendor, consultant or independent contractor of the Company
to terminate, reduce or negatively alter his, her or its relationship with the
Company. The geographic scope of the covenants in this paragraph shall include
any city, county, or state of the United States and any such other city,
territory, country, or jurisdiction in which the Company does business. Nothing
in this paragraph should be construed to narrow the obligations of ▇▇. ▇▇▇▇▇▇
imposed by any other provision herein, any other agreement, law or other source.
8.3 REASONABLE. ▇▇. ▇▇▇▇▇▇ agrees and acknowledges that the time
limitation and the geographic scope on the restrictions in this paragraph 8 and
its subparts are reasonable. ▇▇. ▇▇▇▇▇▇ also acknowledges and agrees that the
limitation in this paragraph 8 and its subparts is reasonably necessary for the
protection of the Company, that through this Agreement he shall receive adequate
consideration for any loss of opportunity associated with the provisions herein,
and that these provisions provide a reasonable way of protecting the Company's
business value which was imparted to him. In the event that any term, word,
clause, phrase, provision, restriction, or section of this paragraph 8 of this
Agreement is more restrictive than permitted by the law of the jurisdiction in
which the Company seeks enforcement thereof, the provisions of this Agreement
shall be limited only to that extent that a judicial determination finds the
same to be unreasonable or otherwise unenforceable. Moreover, notwithstanding
any judicial determination that any term, word, clause, phrase, provision,
restriction, or section of this Agreement is not specifically enforceable, the
parties intend that the Company shall nonetheless be entitled to recover
monetary damages as a result of any breach hereof.
8.4 LEGAL AND EQUITABLE REMEDIES. In view of the nature of the
rights in goodwill, employee relations, trade secrets, and business reputation
and prospects of the Company to be protected under this paragraph 8 of this
Agreement, ▇▇. ▇▇▇▇▇▇ understands and agrees that the Company could not be
reasonably or adequately compensated in damages in an action at law for ▇▇.
▇▇▇▇▇▇'▇ breach of his obligations hereunder. Accordingly, ▇▇. ▇▇▇▇▇▇
specifically agrees that the Company shall be entitled to temporary and
permanent injunctive relief, specific performance, and other equitable relief to
enforce the provisions of this paragraph 8 of this Agreement and that such
relief may be granted without the necessity of proving actual damages, and
without bond. ▇▇. ▇▇▇▇▇▇ ACKNOWLEDGES AND AGREES THAT THE PROVISIONS IN THIS
PARAGRAPH 8 AND ITS SUBPARTS ARE ESSENTIAL AND MATERIAL TO THIS AGREEMENT, AND
THAT UPON BREACH OF THIS PARAGRAPH 8 BY HIM, THE COMPANY IS ENTITLED TO WITHHOLD
PROVIDING PAYMENTS OR CONSIDERATION, TO EQUITABLE RELIEF TO PREVENT CONTINUED
BREACH, TO RECOVER DAMAGES AND TO SEEK ANY OTHER REMEDIES AVAILABLE TO THE
COMPANY. This provision with respect to injunctive relief shall not, however,
diminish the right of the Company to claim and recover damages or other remedies
in addition to equitable relief.
8.5 EXTENSION OF TIME. In the event that ▇▇. ▇▇▇▇▇▇ breaches any
covenant, obligation or duty in this paragraph 8 or its subparts, any such duty,
obligation, or covenants to which the parties agreed by this paragraph 8 and its
subparts shall automatically toll from the date of the first breach, and all
subsequent breaches, until the resolution of the breach through private
settlement, judicial or other action, including all appeals. The duration and
length of ▇▇. ▇▇▇▇▇▇'▇ duties and obligations as agreed by this paragraph 8 and
its subparts shall continue upon the effective date of any such settlement, or
judicial or other resolution.
9. GENERAL PROVISIONS.
9.1 NOTICES. Any notices provided hereunder must be in writing and
shall be deemed effective upon the earlier of personal delivery (including
personal delivery by telex) or the third day after mailing by first class mail,
to the Company at its primary office location and to ▇▇. ▇▇▇▇▇▇ at his address
as listed on the Company's then current payroll records.
9.2 TAX CONSEQUENCES. ▇▇. ▇▇▇▇▇▇ agrees to indemnify the Company
and hold the Company harmless from any and all claims or penalties asserted
against the Company for any failure to pay taxes due on any consideration
provided by the Company pursuant to this Agreement. ▇▇. ▇▇▇▇▇▇ expressly
acknowledges that the Company has not made, nor herein makes, any representation
about the tax consequences of any consideration provided by the Company to ▇▇.
▇▇▇▇▇▇ pursuant to this Agreement.
9.3 COOPERATION. ▇▇. ▇▇▇▇▇▇ agrees to fully cooperate with the
Company with respect to its corporate relationships. ▇▇. ▇▇▇▇▇▇ further agrees
to cooperate with the Company in connection with any defense of or prosecution
by the Company regarding any litigation in which the Company may be involved as
a party or non-party in from time to time.
9.4 NON-DISPARAGEMENT. ▇▇. ▇▇▇▇▇▇ and the Company agree that
neither party will at any time disparage the other to third parties in any
manner likely to be harmful to the other party, their business reputation, or
the personal or business reputation of its directors, shareholders and/or
employees. Notwithstanding the prohibition in the preceding sentence, each
party shall respond accurately and fully to any question, inquiry, or request
for information when required by legal process, or when posed by a governmental
entity
9.5 THE COMPANY PROPERTY. Unless authorized by the Company, on the
Separation Date, ▇▇. ▇▇▇▇▇▇ agrees to return to the Company all Company
documents (and all copies thereof) and any and all other Company property in ▇▇.
▇▇▇▇▇▇'▇ possession, custody or control, including, but not limited to,
financial information, customer information, customer lists, employee lists,
Company files, notes, cellular telephones, personal computers, personal
computers, contracts, drawings, records, business plans and forecasts, financial
information, specifications, computer-recorded information, software, tangible
property, credit cards, entry cards, identification badges and keys, and any
materials of any kind which contain or embody any proprietary or confidential
material of the Company (and all reproductions thereof).
9.6 SEVERABILITY. Whenever possible, each provision of this
Agreement will 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 will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provisions had never been contained herein.
9.7 WAIVER. If either party should waive any breach of any
provisions of this Agreement, he or it shall not thereby be deemed to have
waived any preceding or succeeding breach of the same or any other provision of
this Agreement.
9.8 COMPLETE AGREEMENT. This Agreement and EXHIBITS A AND B
hereto, constitute the entire agreement between ▇▇. ▇▇▇▇▇▇ and the Company and
it is the complete, final, and exclusive embodiment of their agreement with
regard to this subject matter. This Agreement supersedes and replaces the
Employment Agreement dated April 16, 1999. It is entered into without reliance
on any promise or representation other than those expressly contained herein,
and it cannot be modified or amended except in a writing signed by an officer of
the Company.
9.9 COUNTERPARTS. This Agreement may be executed in separate
counterparts, any one of which need not contain signatures of more than one
party, but all of which taken together will constitute one and the same
Agreement.
9.10 HEADINGS. The headings of the sections hereof are inserted for
convenience only and shall not be deemed to constitute a part hereof nor to
affect the meaning thereof.
9.11 SUCCESSORS AND ASSIGNS. This Agreement is intended to bind and
inure to the benefit of and be enforceable by ▇▇. ▇▇▇▇▇▇ and the Company, and
their respective successors, assigns, heirs, executors and administrators,
except that ▇▇. ▇▇▇▇▇▇ may not assign any of his duties hereunder and he may not
assign any of his rights hereunder without the written consent of the Company,
which shall not be withheld unreasonably.
9.12 ATTORNEY FEES. If either party hereto brings any action to
enforce his or its rights hereunder, the prevailing party in any such action
shall be entitled to recover his or its reasonable attorneys' fees and costs
incurred in connection with such action.
9.13 CHOICE OF LAW. All questions concerning the construction,
validity and interpretation of this Agreement will be governed by the law of the
State of Colorado.
9.14 SURVIVAL. The following provisions of this Agreement shall
survive the termination of ▇▇. ▇▇▇▇▇▇'▇ employment as an employee or independent
contractor and the assignment of this Agreement by the Company to any successor
in interest or other assignee: Sections 2.4, 4, 8, and 9.
9.15 INJUNCTIVE RELIEF. ▇▇. ▇▇▇▇▇▇ acknowledges that the
restrictions set forth in Sections 2.4, 4, 8, and 9 above are necessary to
protect the Company's confidential proprietary information and other legitimate
business interests and are reasonable in all respects, including duration,
territory and scope of activity restricted. ▇▇. ▇▇▇▇▇▇ further acknowledges that
the provisions of Sections 2.4, 4, 8, and 9 hereof are essential to the Company,
that the Company would not enter into this Agreement if it did not include these
provisions and that damages sustained by the Company as a result of a breach of
these provisions cannot be adequately remedied by damages, and ▇▇. ▇▇▇▇▇▇ agrees
that the Company, in addition to any other remedy it may have under this
Agreement or at law, shall be entitled to injunctive and other equitable relief
to prevent or curtail any breach of Sections 2.4, 4, 8, and 9 of this Agreement.
▇▇. ▇▇▇▇▇▇ agrees that the existence of any claim or cause of action by ▇▇.
▇▇▇▇▇▇ against the Company or its affiliates, whether predicated on this
Agreement or otherwise, shall not constitute a defense to the enforcement by the
Company of any of the provisions of this Agreement. ▇▇. ▇▇▇▇▇▇ shall have no
right to enforce any of his rights under this Agreement by seeking or obtaining
injunctive or other equitable relief and acknowledges that damages are an
adequate remedy for any breach by the Company of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first above written.
JATO COMMUNICATIONS CORP.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
President and Chief Executive
Officer
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Exhibit A: Non-Competition, Proprietary Information and Inventions Agreement.
Exhibit B: Separation and Release Agreement.
