EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("this Agreement") is made and entered into
to be effective for all purposes as of October 2, 2000 ("the Effective Date"),
by and between Xxxxx Xxxxxxx Wireless Corporation ("Employer"), a corporation
organized and existing under the laws of the State of Florida, and XXXXXXX X.
XxXXXXX ("Employee"), a Florida resident.
W I T N E S S E T H:
- - - - - - - - - -
1. Employment. Employer hereby employs Employee as its Chief Financial
Officer and Employee hereby accepts such employment upon the terms and
conditions hereinafter set forth.
2. Term. Subject to the provisions of termination set forth
hereinbelow, the initial term of this Agreement shall commence on the Effective
Date and shall expire two (2) years thereafter ("the Initial Term"). The Initial
Term shall be comprised of two (2) consecutive twelve (12) month periods;
moreover, for the purposes of this Agreement, each such period is hereinafter
referred to as a "twelve (12) month period", wherever such terminology appears
in this Agreement. Upon expiration of the Initial Term, this Agreement shall be
automatically renewed for successive one (1) year terms unless either party
provides a written notice of termination to the other party no later than sixty
(60) days prior to the commencement of such renewal term. For the purposes of
this Agreement, all references to "the term of this Agreement", "the term
hereof", "the term", or similar terminology shall include the Initial Term and
each renewal term; moreover, each renewal term is hereinafter referred to as a
"twelve (12) month period", wherever such terminology appears in this Agreement.
3. Compensation.
(a) During the first twelve (12) month period of this Agreement,
Employer shall pay Employee an annual salary of $130,000; provided further, such
salary shall be paid in periodic installments in accordance with Employer's
customary payroll practices. Upon the completion of each twelve (12) month
period of this Agreement, Employer's Board of Directors ("the Board") shall
review Employee's annual salary to determine Employee's annual salary with
respect to the twelve (12) month period immediately succeeding such completed
twelve (12) month period; however, such review shall not entitle Employee to
receive any increase in annual salary, and any increase shall be determined by
the Board, in its sole discretion.
(b) Employer uses a calendar year ending December 31 for financial
accounting and tax reporting purposes. Beginning with the calendar year ending
December 31, 2001, with respect to each partial or full calendar year in which
all or part of any twelve (12) month period of this Agreement is included,
Employee shall be entitled to receive incentive compensation determined with
reference to each such calendar year, as provided for in this Subsection (b).
-1-
The incentive compensation payable to Employee shall be determined on an annual
basis by the Board with respect to each partial calendar year and each full
calendar year during which this Agreement is in force. The Board shall ratify
the incentive compensation to which Employee is entitled within eighty-five (85)
days after the last day of each applicable calendar year. With respect to each
applicable calendar year, Employee's incentive compensation for such calendar
year shall be an amount equal to two percent (2%) of Employer's "Consolidated
After-Tax Income". For the purpose of this Agreement, the Consolidated After-Tax
Income shall be the income after income taxes as reported on Employer's Form
10-KSB, Form 10-K, or similar document filed with the United States Securities &
Exchange Commission with respect to each applicable calendar year, or if no Form
10-KSB, Form 10-K, or similar document is filed by Employer, the income after
income taxes as reported on Employer's audited financial statement as determined
in accordance with generally accepted accounting principles applied consistently
with respect to each applicable calendar year, for Employer and each subsidiary
of Employer. The incentive compensation to which Employee is entitled under this
Agreement shall be paid to Employee, in cash or immediately available funds,
within ninety (90) days after the last day of each applicable calendar year. If
during any applicable calendar year this Agreement is terminated for any reason
or expires, and if cessation of Employee's employment occurs before the
conclusion of such calendar year, Employee shall be eligible to receive prorated
incentive compensation with respect to such calendar year. The proration shall
be achieved by multiplying the Consolidated After-Tax Income (as described
above) for the full calendar year during which such cessation of employment
occurred by a fraction, the numerator of which shall be the number of days of
such calendar year during which Employee was employed under this Agreement, and
the denominator of which shall be the total number days in such calendar year.
Such prorated incentive compensation shall be payable to Employee in lieu of any
other incentive compensation under this Agreement with respect to such calendar
year, and shall be paid to Employee, in cash or immediately available funds,
within ninety (90) days after the last day of such calendar year.
Notwithstanding the foregoing, if Employee provides services to a competitor of
Employer or any subsidiary of Employer, whether as an employee, officer,
director, independent contractor, consultant, agent, or otherwise, such services
being of a nature that can reasonably be expected to involve the knowledge,
skills, and experience used or developed by Employee while employed by Employer,
then Employee's incentive compensation under this Agreement shall be forfeited
and terminated, subject to a contrary determination by the Board.
4. Fringe Benefits.
(a) Benefit Plans. Upon meeting the applicable eligibility
requirements, Employee shall be entitled to be a participant in any executive
benefit plans maintained by Employer. For the purpose of this Agreement,
executive benefit plans shall not include compensation plans.
-2-
(b) Health Insurance. During the term of this Agreement, Employer shall
provide and maintain health insurance coverage for Employee. Such health
insurance shall cover Employee, Employee's spouse, and Employee's dependents.
Employer shall pay all of the health insurance premiums for Employee's coverage
and for coverage of Employee's spouse and dependents. Such health insurance
coverage shall be comparable to the health insurance coverage provided to
similarly situated executive employees of Employer.
(c) Business Liability Insurance. During the term of this Agreement,
Employer shall, at its expense, acquire and maintain business liability
insurance coverage as may be necessary to protect Employee for any claims
arising out of Employee's conduct, acts, or omissions arising within the scope
of employment hereunder.
(d) Automobile Allowance. During the term of this Agreement, Employer
shall, at its expense, provide Employee with an automobile allowance in the
amount of $500.00 per month for use by Employee in connection with rendering
services on behalf of Employer. Employee shall use his personal automobile in
connection with Employee's performance of services on behalf of Employer and the
furtherance of Employer's business. Employee shall use the automobile allowance
to defray the expenses incurred or paid by Employee with respect to the use of
his personal automobile for the foregoing purposes, and Employer shall not be
obligated to pay or reimburse Employee for any other costs or expenses directly
or indirectly related to such automobile.
(e) Business Expenses. During the term of this Agreement, Employer
shall pay directly, or reimburse Employee for, reasonable business expenses
incurred by Employee that are directly or indirectly related to Employee's
performance of services on behalf of Employer or the furtherance of Employer's
business. Employee shall keep appropriate records and documentation for such
expenses in accordance with policies established by Employer.
(f) Stock Options. During the term of this Agreement, Employee shall be
entitled to participate in Employer's incentive stock option plan with respect
to Employer's capital stock ("the Plan"). Pursuant to the terms and conditions
of the Plan, Employee shall receive options to purchase 10,000 shares of
Employer's capital stock at an exercise price of $10.00 per share. With respect
to 4,000 shares, Employee's vesting date shall be October 2, 2000. With respect
to 3,000 shares, Employee's vesting date shall be October 1, 2001. With respect
to the remaining 3,000 shares, Employee's vesting date shall be October 1, 2002.
Within a reasonable time after the Effective Date, Employer shall deliver to
Employee documents evidencing Employee's participation in the Plan.
(g) Severance Compensation. If Employer terminates Employee's
employment hereunder without cause, then in addition to the compensation and
-3-
benefits to which Employee is otherwise entitled as of such termination date,
Employer shall pay to Employee as severance compensation an amount equal to
one-sixth (1/6) of Employee's annual salary in effect immediately prior to such
termination.
5. Duties. Employee is hereby engaged to render services, on behalf of
Employer, in accordance with the laws of the State of Florida, applicable
federal and state laws and regulations, and any applicable ethics rules.
Employee shall perform the duties that are assigned from time to time by the
Board, by Employer's President, or by Employer's Chief Executive Officer.
6. Devotion of Full-Time to Employer's Business. During the term of
this Agreement, Employee shall devote Employee's full attention and best efforts
to the business of Employer. Except as otherwise provided in this Section 6,
during the term of this Agreement, Employee shall not engage in or carry on or
be employed by, directly or indirectly, any other business or profession,
whether or not such other business or profession is in competition with
Employer's business. Employee shall not write with respect to, or speak on, any
aspect of Employer's business, without the prior written consent of Employer.
Employee may, with the advance approval of Employer, seek and accept any
elective or appointive office or position within any recognized trade or
business association, attend meetings, seminars and conventions, and perform
such other business activities as may be mutually agreed upon by Employee and
Employer. Nothing herein contained shall prohibit Employee from investing or
trading in stocks, bonds, commodities or other securities or forms of
investments, including real property, provided such activities do not require an
unreasonable amount of time by Employee and do not otherwise adversely affect
Employer's business or Employee's performance of services on behalf of Employer
under this Agreement.
7. Business of Employer.
(a) Business Policies and Procedures. Employer shall have the authority
to establish from time to time the business policies and procedures to be
followed by Employee in performing services for Employer. Employee shall comply
with all such policies and procedures, including Employer's drug testing
policies and procedures.
(b) Clientele. Employer shall have the authority to determine who shall
be accepted as clients, customers, and contractors of Employer, and Employee
recognizes that such accepted clients, customers, or contractors are Employer's,
not Employee's clients, customers, or contractors.
8. Vacations. With respect to the each twelve (12) month period of this
Agreement, Employee shall be entitled to three (3) weeks paid vacation, at times
to be determined by Employer, in the manner most convenient to Employer's
business, and in accordance with Employer's policies. Unused vacation days may
be carried over into future periods with the prior written consent of Employer,
in Employer's sole discretion.
-4-
9. Illness or Incapacity.
(a) If Employee becomes unable to devote the required time to the
business of Employer during the term of this Agreement because of illness,
incapacity, or disability, then during the period commencing with the date of
such illness, incapacity, or disability and ending thirty (30) days thereafter,
Employee shall continue to receive Employee's annual salary with respect to such
period, in accordance with Section 3(a) hereinabove. Any amounts due to Employee
pursuant to this Subsection (a) shall be reduced by the amount of disability
benefits received by Employee as a result of any disability insurance coverage
purchased and paid for by Employer.
(b) If Employee shall not have resumed his duties on or before the last
day of the period specified in Subsection (a) immediately above, then Employee's
employment hereunder shall be deemed terminated as of the end of said period.
(c) If Employee resumes his duties at any time on or before the last
day of the period specified Subsection (a) immediately above, and if Employee
continues to devote his required time to the business of Employer for at least
thirty (30) days following resumption of his duties, then the period specified
in Subsection (a) immediately above shall be deemed a separate and an
independent period with respect to any illness, incapacity, or disability of
Employee that arises after said resumption of duties and said devotion of time
to Employer's business, and any subsequent period specified in Subsection (a)
immediately above shall commence to run in the event of Employee's failure to
carry out his duties after said resumption of duties and said devotion of time,
because of illness, incapacity, or disability. However, if such resumed period
of work is less than thirty (30) days, the portion of the period specified in
Subsection (a) immediately above that immediately precedes Employee's resumed
period of work shall be aggregated with the period of illness or incapacity
immediately following Employee's resumed period of work and treated as a single
period in determining the payments and the periods of time set forth in
Subsection (a) immediately above and in determining the termination date of
Employee's employment pursuant to Subsection (b) immediately above.
(d) Any dispute regarding the existence, extent, or continuance of
Employee's illness, incapacity, or disability shall be resolved by the
determination of a majority of three (3) competent and reputable physicians who
are not employees or contractors of Employer, one of whom shall be selected by
Employee, one of whom shall be selected by Employer, and the third of whom shall
be selected jointly by the other two (2) physicians. The determination of said
physicians shall be binding upon the parties hereto. The costs of such
determination shall be borne by Employer. Employee's refusal or failure to
submit to any examination or test requested by such physicians shall constitute
a material breach of this Agreement. Notwithstanding any contrary provision of
-5-
this Agreement, in the event of any such refusal or failure, Employee, in
Employer's sole discretion, shall not be entitled to receive any benefits or
compensation under this Section 9 and any incentive compensation under Section
3(b) hereinabove.
10. Termination of Employment.
(a) Employee may terminate his employment hereunder, without cause,
upon sixty (60) days prior written notice. Upon Employer's receipt of such
notice from Employee, Employer shall have the right to pay Employee, in advance,
the compensation to which Employee is otherwise entitled for such sixty (60) day
period and demand that Employee physically leave Employer's business premises;
provided, further, Employer shall pay to Employee any other compensation and
benefits to which Employee is entitled as of such termination date by virtue of
any other provisions of this Agreement. Employer may terminate Employee's
employment hereunder, without cause, upon sixty (60) days prior written notice.
Upon Employer's delivery of such notice to Employee, Employer shall have the
right to pay Employee, in advance, the compensation to which Employee is
otherwise entitled for such sixty (60) day period and demand that Employee
physically leave Employer's business premises; provided further, Employer shall
pay to Employee any other compensation and benefits to which Employee is
entitled as of such termination date by virtue of any other provisions of this
Agreement, and notwithstanding any contrary provision of this Agreement, any
such advance payment shall be in lieu of, and shall constitute a full
satisfaction of Employer's obligation to pay Employee, the severance
compensation described in Section 4(g) hereinabove.
(b) Employer may terminate the employment of Employee hereunder,
without notice, upon Employee's failure to perform the duties assigned to him by
the Board, or for other good cause. For the purpose of this Agreement, the term
"good cause" shall include: (1) a pattern of conduct which tends to hold
Employer up to ridicule, or which adversely affects Employer, in the business
community pertaining to Employer's business, (2) engaging in conduct disloyal to
Employer, (3) non-diligent performance of duties, (4) failure to appear for work
during regularly scheduled hours without a sufficient reason, (5) conviction of
any crime, and (6) dependence upon, or abuse of, any addictive substance,
including but not limited to, alcohol, amphetamines, barbiturates, LSD, cocaine,
marijuana, or narcotic drugs. Notwithstanding the foregoing, Employee's
employment may not be terminated for any conduct set forth in clauses (1)
through (4) above unless such conduct continues after Employer has served
written demand on Employee to cease or rectify such conduct and Employee has
failed to comply with such demand. For the purposes of clause (6) above, a
determination of such dependence or such abuse shall be made by the decision of
a majority of three (3) competent and reputable physicians who are not employees
or contractors of Employer, one of whom shall be selected by Employer, one of
whom shall be selected by Employee, and the third of whom shall be selected
jointly by the other two (2) physicians; provided, further, the determination of
-6-
said physicians shall be binding upon the parties hereto, and the costs of such
determination shall be borne by Employer. Employee's refusal or failure to
submit to any examination or test requested by such physicians shall constitute
a material breach of this Agreement. Notwithstanding any contrary provision of
this Agreement, in the event of any such refusal or failure, Employee, in
Employer's sole discretion, shall not be entitled to receive any incentive
compensation under Section 3(b) hereinabove.
(c) Employee may immediately terminate his employment with Employer
hereunder, without notice, upon Employer's material breach of any provision of
this Agreement. Except as otherwise provided in Subsection (b) immediately
above, Employer may immediately terminate Employee's employment, without notice,
upon Employee's material breach of any provision of this Agreement.
11. Covenant Not To Compete.
(a) Employee recognizes and agrees that by virtue of his employment
with Employer, he will be afforded opportunities to become known to various
referral and business sources, clients, customers, and contractors of Employer,
and prospective clients, customers, and contractors of Employer and will have
access to Employer's business methods, business plans, proprietary information,
and trade secrets. Employee recognizes that such opportunities and such access
are valuable, are of great personal benefit to him in his professional or
business endeavors, and therefore provide a sufficient basis for the restrictive
covenants contained herein. In recognition of the above, and in further
consideration of Employer's employment of Employee, during the term of
Employee's employment by Employer, whether pursuant to this Agreement, any
automatic or other renewal hereof, or otherwise, and for a period of twelve (12)
months following the termination or expiration of this Agreement or any
extension thereof, or following the termination or expiration of Employee's
employment by Employer for any reason whatsoever, Employee shall not directly or
indirectly within the "restricted geographical area" enter into or engage in any
endeavors in competition with the business of Employer as it now exists, or as
it may exist in the future, as an individual on his own account, or as a
partner, an employee or an agent for any partnership, entity, or corporation, or
as an officer or a director of a corporation, or otherwise. For the purpose of
this Agreement, the "restricted geographical area" shall encompass each state in
the United States in which Employer is conducting business as of the expiration
or termination of Employee's employment and each state in the United States in
which Employer has commenced plans to conduct business during the aforesaid
twelve (12) month period.
(b) The period of time during which Employee is prohibited from
engaging in the business practices specified in Subsection (a) above shall be
extended by any length of time during which Employee is in breach of any
covenant specified in Subsection (a) above.
(c) It is acknowledged and agreed by the parties hereto that the
-7-
foregoing restrictive covenants are essential elements of this Agreement, and
that, but for the agreement of Employee to comply with such covenants, Employer
would not have agreed to enter into this Agreement. Such covenants by Employee
shall be construed as agreements independent of any other provision in this
Agreement. The existence of any claim or cause of action of Employee against
Employer, whether predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by Employer of such covenants.
(d) It is agreed by parties hereto that if any covenant set forth in
this Section 11 is held to be unreasonable, arbitrary, or against public policy,
then such covenant shall be considered divisible both as to time and as to
geographical area. Employer and Employee agree that, if any court of competent
jurisdiction determines the specified time period or the specified geographical
area to be unreasonable, arbitrary, or against public policy, then a lesser time
period or geographical area which is determined to be reasonable, non-arbitrary,
and not against public policy may be enforced against Employee. Employer and
Employee agree that the foregoing covenants are appropriate and reasonable when
considered in light of the nature and extent of the business conducted by
Employer.
(e) In the event of the breach or threatened breach by Employee of the
covenants contained herein, Employee agrees that Employer shall be entitled to
injunctions, both preliminary and final, without Employer's providing bond or
security, enjoining and restraining such breach or threatened breach, and such
remedies shall be in addition to all other remedies which may be available to
Employer either at law or in equity. Employer and Employee agree and acknowledge
that a violation of any covenant contained herein shall cause Employer to suffer
irreparable damages and Employee agrees that he is estopped from subsequently
asserting in any action to enforce the provisions of any covenant contained
herein that Employer has an adequate remedy at law and therefore is not entitled
to injunctive relief.
(f) The provisions of this Section 11 shall be enforceable against
Employee by any assignee or successor of Employer. Employer shall be entitled to
assign its rights with respect to this Section 11. Any assignee or successor of
Employer shall be vested with all rights of Employer under this Section 11, in
the place and stead of Employer. The rights of an assignee or a successor of
Employer shall include the right to enforce the provisions of this Section 11 by
seeking redress from any court of competent jurisdiction. Employee understands
and agrees that the tantamount purpose of the provisions of this Section 11 is
to protect each legitimate business interest of Employer to the fullest extent
permitted by law.
(g) Notwithstanding anything contained herein to the contrary, this
Section 11 shall not be applicable if Employee's employment is terminated for
any reason whatsoever within thirty (30) days after the Effective Date.
12. Business Records. All business records, contracts, business
-8-
documents, business methods, business plans, proprietary information, trade
secrets, and data of any type concerning clients, customers, or contractors of
Employer, or concerning any aspect of Employer's business, shall be and shall
remain the property of Employer, notwithstanding the subsequent termination of
this Agreement for any reason whatsoever. Employee hereby agrees that any and
all of the aforesaid items, and any directly or indirectly related information
of any nature, are solely Employer's property. Employee further agrees that upon
the termination of his employment at any time for any reason whatsoever, any and
all of the aforesaid items, and any directly or indirectly related information
of any nature, shall continue to be Employer's property. Employee further agrees
that now and upon termination of his employment at any time for any reason
whatsoever, such aforesaid items and such related information shall not be
removed from Employer's premises and shall not be copied by facsimile, notation
or otherwise, without the prior written consent of Employer or the Board.
13. Disclosure. During the term of this Agreement, Employee shall
disclose, and disclose only to Employer, all ideas, methods, plans, development
or improvements known by him which relate directly or indirectly to the business
of Employer, whether acquired by Employee before or during his employment with
Employer; provided, however, nothing in this Section 13 shall be construed as
requiring any such communication or disclosure where the idea, plan, method,
development, or improvement is lawfully protected from disclosure as a trade
secret of a third party or by any other lawful prohibition against such
communication or disclosure.
14. Confidentiality. Employee agrees to keep in strict secrecy and
confidence any and all information Employee assimilates or to which he has
access during his employment with Employer, and which has not been publicly
disclosed and is not a matter of common knowledge in the business in which
Employer is engaged. Employee agrees that both during and after his employment
with Employer, he will not, without the prior written consent of Employer or the
Board, disclose any such confidential information to any third party,
individual, partnership, joint venture, company, limited liability company,
corporation, organization, or other entity.
15. Specific Performance. Employee agrees that damages at law will be
an insufficient remedy to Employer in the event that Employee violates the terms
of Sections 11, 12, 13, or 14 of this Agreement, and that Employer, upon
application to a court of competent jurisdiction, shall be entitled to obtain
injunctive relief to enforce the provisions of such Sections, which injunctive
relief shall be in addition to any other rights or remedies available to
Employer. Employee shall reimburse Employer for all costs and expenses that
-9-
directly or indirectly relate to Employer's successful enforcement of the terms
of Sections 11, 12, 13, or 14 of this Agreement, including reasonable attorneys'
fees incurred before trial, at trial, and in any appellate, arbitration, or
mediation proceedings; provided, further, Employer shall reimburse Employee for
all costs and expenses that directly or indirectly relate to Employee's
successful defense of the terms of Section 11, 12, 13, or 14 of this Agreement,
including reasonable attorneys' fees incurred before trial, at trial, and in any
appellate, arbitration, or mediation proceedings.
16. Compliance With Other Agreements. Employee represents and warrants
that the execution of this Agreement by him and the performance of his
obligations hereunder will not conflict with, result in a breach of, cause the
termination of, or constitute a default under any other agreement to which
Employee is a party or by which Employee is or may be bound. Employee agrees and
promises to indemnify and hold harmless Employer from all loss, liability,
claims, and expenses of any kind whatsoever, to which Employer is or might be
subjected, either directly or indirectly, as a result of a breach by Employee of
the representation and warranty specified in this Section 16.
17. Notice To Parties. Any notice or other communication which is
required or which may be given under this Agreement shall be in writing and
shall be deemed to be effective (a) upon receipt if personally delivered or
transmitted by telecopy or similar electronic transmission method; (b) upon
receipt, if sent by recognized expedited delivery service; and (c) upon receipt,
if mailed certified mail, return receipt requested, first class postage prepaid.
In each case, notice shall be given to the parties hereto at the following
addresses:
To Employer at: Xxxxx Xxxxxxx Wireless Corporation
0000 Xxxxxxx Xx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
Facsimile No. (000) 000-0000
With copy to: Xxxxxxxxxxx X. Xxxxxx, Esquire
Xxxxx Xxxxxx & Associates, P.L.
000 Xxxxx Xxxx Xxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Facsimile No. (000) 000-0000
To Employee at: Xxxxxxx X. XxXxxxx
00000 Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxx 00000
Facsimile No. _____________________
E-Mail Address: xxx0xxx@xxx.xxx
With a copy to: ___________________________________
___________________________________
___________________________________
___________________________________
___________________________________
Either party may change such party's address for the purposes of this Agreement
by giving written notice of the new address to the other party in accordance
with any medium described hereinabove. Rejection or other refusal to accept
-10-
delivery of any notice or communication required or permitted to be given under
this Agreement shall cause the same to be effective when sent. The inability to
deliver any notice or communication required or permitted to be given under this
Agreement because of a changed address for which no notice was given shall cause
the same to be effective when sent.
18. Waiver of Breach. No assent or waiver, express or implied, of any
breach of any one or more of the covenants, conditions or provisions of this
Agreement shall be deemed a waiver of any subsequent breach, or a waiver of any
other covenant, condition or provision of this Agreement.
19. Binding Effect. The rights and obligations of the parties under
this Agreement shall inure to the benefit of, and shall be binding upon, the
respective heirs, devisees, executors, administrators, legal representatives,
personal representatives, successors and assigns of the parties.
20. Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Florida. The state courts of
Florida shall have exclusive jurisdiction over any judicial proceeding relating
to any dispute arising out of the interpretation, performance, or breach of this
Agreement.
21. Entire Agreement. This Agreement contains all representations and
the entire understanding and agreement between the parties. Correspondence,
memoranda or agreements, whether written or oral, originating before the date of
this Agreement are replaced in total by this Agreement unless otherwise
specifically provided for in this Agreement.
22. Attorney's Fees. The prevailing party to a dispute between, or
litigation between, the parties hereto, if said dispute or litigation relates to
this Agreement, shall be entitled to reimbursement from the non-prevailing party
or parties for such prevailing party's reasonable costs and expenses, including
reasonable attorneys' fees. For purposes of this Agreement, the "prevailing
party" shall be deemed to be that party who obtains substantially the result
sought, whether by settlement, mediated or otherwise, dismissal, or judgment.
For purposes of this Agreement, the term "reasonable attorneys' fees" shall
include, without limitation, the actual attorneys' fees incurred in retaining
counsel for advice, negotiations, suit, appeal, or any other legal proceeding,
including mediation and arbitration.
23. Headings. The titles and headings of the various sections of this
Agreement are intended solely for convenience of reference and are not intended
to explain, modify or place any interpretation upon any of the provisions of
this Agreement.
24. Amendment. This Agreement may be amended only by a writing signed
by both of the parties hereto.
-11-
25. Severability. If any part of this Agreement is determined to be
illegal or unenforceable, all other parts shall be given effect separately and
shall not be affected.
26. Additional Documents. Each party hereto agrees to execute and
acknowledge, if required, any and all other documents and writings which may be
necessary to carry out the purposes and provisions of this Agreement.
27. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
28. Interpretation. The language used in this Agreement shall not be
construed in favor of or against either of the parties hereto, but shall be
construed as if both of the parties hereto prepared this Agreement. 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 such party.
-12-
IN WITNESS WHEREOF, the parties have executed this Agreement on the
dates or date set forth hereinbelow to be effective as of the Effective Date.
XXXXX XXXXXXX WIRELESS CORPORATION
By:
------------------------- ---------------------------------
Signature of Witness
Printed Name:
------------------------- -----------------------
Printed Name of Witness Title:
------------------------- ------------------------------
Signature of Witness Date:
-------------------------------
-------------------------
Printed Name of Witness
------------------------- -------------------------------
Signature of Witness Xxxxxxx X. XxXxxxx
------------------------- Date:
Printed Name of Witness --------------------------
-------------------------
Signature of Witness
-------------------------
Printed Name of Witness
-13-
