EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is entered into as of March 2, 1999 by and
between XXXX COMMUNICATIONS, INC., a Delaware corporation (the "Company"), and
XXXX XXXXXX XXXXXXX (the "Executive").
WITNESSETH:
WHEREAS, the Company desires to continue to employ the Executive, and the
Executive desires to continue to be employed by the Company, pursuant to the
provisions contained in this Employment Agreement (the "Agreement");
NOW, THEREFORE, in consideration of the premise, and the respective
covenants and agreements of each of the Company and the Executive contained in
this Agreement, each of the Company and the Executive agrees as follows:
ARTICLE I
Employment
1.1 The Company. The Company employs the Executive and the Executive
accepts such employment. Subject to the direction of the Board of Directors of
the Company, the Executive shall serve as the Chairman of the Board, President
and Chief Executive Officer of the Company. The Executive shall have such
responsibilities, perform such duties and exercise such power and authority as
are inherent in, or incident to, the offices of Chairman of the Board, President
and Chief Executive Officer. The Executive shall devote his full business time
and attention, and his best efforts, to the diligent performance of such duties.
1.2 Subsidiary Corporations. The Executive shall serve as the Chairman of
the Board, and a principal officer of each of the Company's current and any
future wholly owned or majority owned subsidiaries.
ARTICLE II
Term
Subject to the provisions of Article VI below, the term of this Agreement
shall be for a period of three years, commencing as of March 2nd 1999 and
expiring on March 2nd 2002. Unless either party shall give to the other written
notice of termination on or before September 1st, 2001, the term of this
Agreement shall, on September 1st, 2001, be extended for a period of three
years, commencing as of March 2nd, 2002 and expiring on March 2nd, 2005.
ARTICLE III
Salary
3.1 Initial Salary. In full payment for the obligations to be performed by
the Executive during the term of this Agreement, the Company shall pay to the
Executive a salary at an annual rate equal to the sum of One Hundred and Thirty
Seven Thousand Dollars ($137,000-00).
3.2 Payment of Salary. Payments of salary shall be made to the Executive
in installments from time to time on the same dates payments of salary are
generally made to all senior management employees of the Company.
ARTICLE IV
Bonus
The Executive may receive an annual bonus in an amount determined by
the Board of Directors of the Company, in its discretion, if and when so
determined by the Board of Directors.
ARTICLE V
Certain Fringe Benefits
5.1 Generally. The Executive shall be entitled to receive such benefits
and to participate in such benefit plans as are generally provided from time to
time by the Company to its sr. management employees; provided, however, that
nothing contained in this Section shall be construed to obligate the Company to
provide any specific benefits to its employees generally.
5.2 Vacations. The Executive shall be entitled to four weeks vacation time
on an annual basis in accordance with such policies as are from time to time
adopted by the Company's Board of Directors with respect to its senior
management employees.
5.3 Automobile. The Company shall provide the Executive an automobile
allowance of $700.00 per month which is to cover costs and expenses related to
Executive use of personal automobile in connection with the performance of his
duties under this Agreement.
5.4 Stock Options. The Executive shall be entitled to participate in the
Company's stock option plans as may from time to time be in effect and to
receive such incentive or other stock options as may from time to time be
granted to him thereunder; provided, however, that nothing contained in this
Section 5.4 shall be construed to obligate the Company, its Board of Directors
or any committee of its Board of Directors to grant any incentive or other stock
option whatsoever to the Executive.
5.5 Life Insurance. The Company shall purchase and maintain in effect one
or more term insurance policies on the life of the Executive in an aggregate
amount of not less than One Million Dollars ($1,000,000). The beneficiary of
each such policy shall be the person or persons who shall from time to time be
designated in writing by the Executive to the Company. In the absence of any
written designation to the contrary, the beneficiary of all such insurance
policies shall be the Executive's spouse. The Company shall purchase and
maintain in effect one insurance policy that covers loss of salary for any
disability that renders the executive unable to perform his duties.
5.6 Reimbursement of Medical Expenses. The Company shall reimburse the
Executive for the full amount of any medical, dental and optical expenses not
covered under any group medical plan from time to time in effect for the benefit
of Company employees generally. Such coverage shall include without limitation
mental health care and treatment and other medical, dental and optical expenses
not covered under the Company's health care plan now or hereafter in effect. The
Company may satisfy its obligation to the Executive under this Section 5.7 by
providing excess medical, dental, optical and other health care insurance
coverage for the Executive's benefit.
5.7 Business and Entertainment Expenses. The Company shall reimburse the
Executive for all reasonable business and entertainment expenses related to the
Executive's position with the Company.
ARTICLE VI
Termination of Employment
6.1 Certain Definitions. The following terms shall have the
following respective meanings when utilized in this Agreement:
(a) "Bonus" shall mean, as of a given date, the most
recent annual bonus awarded by the Company to the Executive.
(b) "Cause" shall mean any action by the Executive or
any inaction by the Executive which constitutes:
(i) fraud, embezzlement, misappropriation, dishonesty or breach of
trust;
(ii) a material breach or violation of any or all of the
covenants, agreements and obligations of the Executive set
forth in this Agreement, other than as the result of the
Executive's death or Disability (as hereinafter defined);
(iii) a willful or knowing failure or refusal by the Executive to
perform any or all of his material duties and responsibilities
as an officer of the Company, other than as the result of the
Executive's death or Disability; or
(iv) gross negligence by the Executive in the performance of
any or all of his material duties and responsibilities
as an officer of the Company, other than as a result of
the Executive's death or Disability;
provided, however, that if the basis for any termination of the Executive's
employment by the Company as set forth in the Termination Notice (as hereinafter
defined) delivered by the Company to the Executive is any or all of the
definitions of Cause set forth in Sections 6.1(b)(ii), 6.1(b)(iii) or 6.1(b)(iv)
of this Agreement, then, in such event, the Executive shall have fifteen (15)
days from and after the date of his receipt of such Termination Notice to
present a reasonable plan to cure such action or inaction specified in the
Termination Notice, which plan may require more than twenty (20) days to cure
the specified action or inaction, but such plan must be reasonably satisfactory
to the Company and the Executive must proceed diligently to effectuate such
plan.
(c) "Compensation" shall mean the sum of the Executive's
Salary (as hereinafter defined) and Bonus.
(d) "Disability" shall mean any mental or physical
illness, condition, disability or incapacity which prevents
the Executive from reasonably discharging his duties and
responsibilities as an officer of the Company. If any
disagreement or dispute shall arise between the Company and
the Executive as to whether the Executive suffers from a
Disability, then, in such event, the Executive shall submit to
the physical or mental examination of a physician licensed
under the laws of the State of California, who is mutually
agreeable to the Company and the Executive, and such physician
shall determine whether the Executive suffers from a
Disability. In the absence of fraud or bad faith, the
determination of such physician shall be final and binding
upon the Company and the Executive. The entire cost of such
examination shall be paid for solely by the Company.
(e) "Good Reason" shall mean:
(i) the assignment by the Board of Directors (or the executive
committee of the Board of Directors, if any) to the Executive,
without his express written consent, of duties and
responsibilities which results in the Executive having less
significant duties and responsibilities or exercising less
significant power and authority than he had, or duties and
responsibilities or power and authority not comparable to that
of the level and nature which he had, immediately prior to
such assignment;
(ii) the removal of the Executive from, or a failure to
reappoint the Executive to, his then current position or
positions with the Company or its subsidiaries or affiliates,
except (A) with the Executive's express written consent or (B)
in connection with any termination of the Executive's
employment by the Company as the result of the Executive's
Protracted Disability (as hereinafter defined) or for Cause;
(iii) the reduction of the Executive's Salary or the reduction
of any or all of the Executive's benefits set forth in Article
V above;
(iv) the Company's failure to perform on a timely basis its
obligations under this Agreement;
(v) the Company's requiring the Executive, without his express
written consent, to travel on Company business to an extent
substantially greater than the Executive's business travel
obligations immediately prior to such time;
(vi) the Company's requiring the Executive, without his
express written consent, to change his place of permanent
residency to place outside of Orange County, California;
(vii) the Company's moving its executive offices to a place
outside of Orange County, California, without the Executive's
express written consent; or
(viii) the failure of the Company to obtain the express
written assumption of, and agreement to perform on a timely
basis, the Company's obligations under this Agreement by any
successor to the Company as required by Article IX of this
Agreement.
(f) "Protracted Disability" shall mean any Disability
which prevents the Executive from reasonably discharging his
duties and responsibilities as an officer of the Company for a
period of twelve (12) consecutive months.
(g) "Salary" shall mean, as of a given date, the
Executive's then current annual salary.
(h) "Termination Date" shall mean a specific date not
less than forty-five (45) nor more than ninety (90) days from
and after the date of any Termination Notice upon which the
Executive's employment by the Company shall be terminated in
accordance with the provisions of this Agreement.
(i) "Termination Notice" shall mean a written notice
which sets forth (i) the specific provision of this Agreement
relied upon to terminate the Executive's employment, (ii) in
reasonable detail the facts and circumstances claimed to
provide the basis for the termination of the Executive's
employment, and (iii) a Termination Date.
6.2 Termination of Employment.
(a) Notwithstanding the provisions of Article II hereof, this
Agreement (i) shall automatically terminate upon the death of the Executive
pursuant to the provisions of Section 6.3 hereof, (ii) may be terminated at any
time by the Company pursuant to the provisions of Sections 6.4 or 6.5 hereof,
and (iii) may be terminated at any time by the Executive pursuant to the
provisions of Section 6.6 hereof.
(b) If either the Company or the Executive shall desire to terminate
the Executive's employment by the Company pursuant to any of the provisions of
Sections 6.4, 6.5 or 6.6 of this Agreement, then, in such event, the party
causing such termination shall provide a Termination Notice to the other party.
(c) If this Agreement shall be terminated pursuant to any of the
provisions of this Article VI, the Company shall be discharged from all of its
obligations to the Executive under this Agreement upon the payment to the
Executive of the amount set forth in the Section of this Article VI pursuant to
which such termination shall occur. The Executive's sole and exclusive remedy
for the termination of this Agreement, regardless of whether such termination
shall be initiated by the Company or the Executive, and regardless of whether
such termination shall be with or without Cause, shall be the payment by the
Company to the Executive of the amount set forth in the Section of this Article
VI pursuant to which such termination shall occur.
6.3 Termination Upon Death of Executive. If during the term of this
Agreement the Executive shall die, then the employment of the Executive by the
Company shall automatically terminate on the date of the Executive's death. In
such event, not more than thirty (30) days after the date of the Executive's
death, the Company shall pay to the Executive's estate or as otherwise directed
by the Executive's personal representative, an amount in cash equal to the
Executive's Compensation (subject to applicable payroll and/or other taxes
required by law to be withheld) determined as of the date of the Executive's
death.
6.4 Disability of Executive.
(a) In the event that at any time during the term of this Agreement
the Executive shall suffer any Disability, then the Company shall be obligated
to continue to pay in the ordinary and normal course of its business to the
Executive or his legal representative, as the case may be, the Executive's
Compensation (subject to applicable payroll and/or other taxes required by law
to be withheld) from the date that the Executive shall first suffer any such
Disability to the date that the Executive's employment by the Company shall be
terminated pursuant to any of the provisions of this Agreement.
(b) In the event that the Executive shall suffer any Protracted
Disability during the term of this Agreement, then the Company may terminate the
Executive's employment under this Agreement. In such event, in addition to any
other benefits which may have been provided by the Company to the Executive or
his legal representative, as the case may be, pursuant to the provisions of
Section 6.4(a) above, not later than the Termination Date specified in the
Termination Notice delivered by the Company to the Executive or his legal
representative, as the case may be, the Company shall pay to the Executive or as
otherwise directed by the Executive's legal representative an amount in cash
equal to the Executive's Compensation (subject to applicable payroll and/or
taxes required by law to be withheld) determined as of the date of such
Termination Notice. Subsequent to such Termination Date, the Executive or his
legal representative, as the case may be, shall also be entitled to receive any
benefits which may be payable under any disability insurance policy or
disability plan provided to the Executive by the Company.
6.5 Termination of Employment by Company.
(a) The Company may terminate this Agreement at any time with Cause.
In such event, the Company shall be obligated to continue to pay in the ordinary
and normal course of its business to the Executive only his Salary (subject to
applicable payroll and/or other taxes required by law to be withheld) through
the Termination Date set forth in the Termination Notice.
(b) The Company may terminate this Agreement at any time without
Cause. If any such termination shall occur on or before March 2nd, 2002, then,
in such event, not later than the Termination Date specified in the Termination
Notice, the Company shall pay to the Executive, in cash, an amount equal to (i)
the Executive's Compensation, determined as of the date of the Termination
Notice, multiplied by (ii) the greater of (A) the number of years and any
portion of a year remaining in the term of this Agreement or (B) 2.99 (subject
to applicable payroll and/or other taxes required by law to be withheld). If any
such termination shall occur after September 2nd, 2002, then, in such event, not
later than the Termination Date specified in the Termination Notice, the Company
shall pay to the Executive, in cash, an amount equal to the Executive's
Compensation, determined as of the date of the Termination Notice, multiplied by
2.99 (subject to applicable payroll and/or other taxes required by law to be
withheld).
6.6 Termination of Employment by Executive.
(a) The Executive may terminate this Agreement at any time with Good
Reason. If any such termination shall occur on or before March 2nd, 2002, then,
in such event, not later than the Termination Date specified in the Termination
Notice, the Company shall pay to the Executive, in cash, an amount equal to (i)
the Executive's Compensation, determined as of the date of the Termination
Notice, multiplied by (ii) the greater of (A) the number of years and any
portion of a year remaining in the term of this Agreement or (B) 2.99 (subject
to applicable payroll and/or other taxes required by law to be withheld). If any
such termination shall occur after March 2nd, 2002, then, in such event, not
later than the Termination Date specified in the Termination Notice, the Company
shall pay to the Executive, in cash, an amount equal to (i) the Executive's
Compensation, determined as of the date of the Termination Notice, multiplied by
(ii) 2.99 (subject to applicable payroll and/or other taxes required by law to
be withheld).
(b) The Executive may terminate this Agreement at any time without
Good Reason. In such event, the Company shall be obligated to continue to pay in
the ordinary and normal course of its business to the Executive only his Salary
(subject to applicable payroll and/or other taxes required by law to be
withheld) through the Termination Date set forth in the Termination Notice.
ARTICLE VII
Termination of Employment
Subsequent to a Change in Control of the Company
7.1 Change in Control of the Company Defined. For purposes of this Article
VII, the term "Change in Control of the Company" shall mean any change in
control of the Company of a nature which would be required to be reported (a) in
response to Item 6(e) of Schedule 14A of Regulation 14A, as in effect on the
date of this Agreement, promulgated under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), (b) in response to Item 1 of the Current Report
on Form 8-K, as in effect on the date of this Agreement, promulgated under the
Exchange Act, or (c) in any filing by the Company with the Securities and
Exchange Commission; provided, however, that, without limitation, a Change in
Control of the Company shall be deemed to have occurred if:
(i) any "person" (as such term is defined in Sections 13(d)(3)
and 14(d)(2) of the Exchange Act), other than the Company, any
majority-owned subsidiary of the Company or any compensation
plan of the Company or any majority-owned subsidiary of the
Company, becomes the "beneficial owner" (as such term is
defined in Rule 13d-3 of the Exchange Act), directly or
indirectly, of securities of the Company (whether by merger,
consolidation, reorganization or otherwise) representing
fifteen percent (15%) or more of the combined voting power of
the Company's then outstanding securities;
(ii) during any period of two consecutive years during the
term of this Agreement, the individuals who at the beginning
of such period constitute the Board of Directors of the
Company cease for any reason to constitute at least a majority
of such Board of Directors, unless the election of each
director who was not a director at the beginning of such
period has been approved in advance by directors representing
at least two-thirds of the directors then in office who were
directors at the beginning of such period;
(iii) any "person" (as such term is defined in Sections
13(d)(3) and 14(d)(2) of the Exchange Act), other than the
Company, any subsidiary of the Company or any compensation,
retirement, pension or other employee benefit plan or trust of
the Company or any subsidiary of the Company, becomes the
"beneficial owner" (as such term is defined in Rule 13d-3
promulgated under the Exchange Act), directly or indirectly,
of securities of any wholly-owned or majority -owned
subsidiary/subsidiaries of the Company or any successor to any
wholly-owned or majority-owned subsidiary/subsidiaries of the
Company, (whether by merger, consolidation, reorganization or
otherwise) representing a majority of the combined voting
power of the then outstanding securities of any wholly owned
majority owned subsidiary/subsidiaries of the Company, as the
case may be;
(iv) the Company shall merge or consolidate with or into
another corporation or other entity, or enter into a binding
agreement to merge or consolidate with or into another
corporation or other entity, other than a merger or
consolidation which would result in the voting securities of
the Company outstanding immediately prior thereto continuing
to represent (either by remaining outstanding or by being
converted into voting securities of the surviving corporation
or entity) not less than eighty-five percent (85%) of the
combined voting power of the voting securities of the Company
or such surviving corporation or entity outstanding
immediately after such merger or consolidation;
(v) the Company shall sell, lease, exchange,
transfer, convey or otherwise dispose of all or substantially
all of its assets, or enter into a binding agreement for the
sale, lease, exchange, transfer, conveyance or other
disposition of all or substantially all of its assets, in one
transaction or in a series of related transactions;
(vi) the Company shall liquidate or
dissolve, or any plan or proposal shall be adopted for the
liquidation or dissolution of the Company; or
7.2 Termination of Employment After Change in Control of Company.
(a) Notwithstanding the provisions of Articles II and VI of this
Agreement, in the event that there shall occur any Change in Control of the
Company and at any time subsequent to the date of any such Change in Control of
the Company, either the Company shall terminate the employment of the Executive
without Cause or the Executive shall terminate his employment for Good Reason,
then, in any such event, the following shall occur:
(i) Not later than the Termination Date specified in the
Termination Notice delivered by the Company to the Executive,
or by the Executive to the Company, as the case may be, the
Company shall pay to the Executive an amount, in cash, equal
to his "base amount," as such term is defined in Section 280G
of the Internal Revenue Code of 1986, as amended, and the
rules and regulations promulgated thereunder, determined as of
the date of the Termination Notice, multiplied by Two and
Ninety-Nine One Hundredths (2.99) (the "Change in Control
Termination Amount") (subject to applicable payroll and/or
other taxes required by law to be withheld); and any and all
options that may previously have been granted to the executive
shall become immediately fully vested.
(ii) Any and all stock options granted to the Executive under
any stock option plan of the Company as may from time to time
be in effect, which shall not by their terms have vested on or
before such Termination Date, shall vest on such Termination
Date.
(b) The Change in Control Termination Amount shall be determined by
the Company's regularly retained certified public accountants in consultation
with the Company's regularly retained attorneys. In making such determination,
the Company's regularly retained certified public accountants and attorneys
shall liberally construe the provisions of the Internal Revenue Code of 1986, as
amended, and the applicable rules and regulations thereunder. In the absence of
fraud or manifest error, any determination made pursuant to this Section 7.2(b)
shall be conclusive and binding upon the Company and the Executive.
(c) Notwithstanding anything to the contrary set forth in Sections
7.2(a) and 7.2(b) above, the amount paid by the Company to the Executive shall
be limited to the maximum amount which will not constitute a "parachute
payment," as such term is defined in Section 280G(b)(2) of the Internal Revenue
Code of 1986, as amended. This limitation shall first be applied to amounts
provided pursuant to clause (ii) of Section 7.2(a) hereof (otherwise included in
the calculation of a parachute payment) to the extent thereof and then to
amounts provided pursuant to clause (i) of Section 7.2(a) hereof.
ARTICLE VIII
Certain Restrictions on the Executive
8.1 Certain Restrictions. The Executive covenants and agrees with the
Company as follows:
(a) He shall not, during the term of this Agreement and for a period
of two years from and after the date of termination of this Agreement, directly
or indirectly, (i) acquire or own in any manner any interest in, or loan any
amount to, any Person which competes in any manner with the Company or any of
its subsidiaries or affiliates in the Territory, (ii) be employed by or serve as
an employee, agent, officer, or director of, or as a consultant to, any Person,
other than the Company and its subsidiaries and affiliates, which competes in
any manner with the Company or its subsidiaries or affiliates in the Territory,
or (iii) compete in any manner with the Company or its subsidiaries or
affiliates in the Territory. The foregoing provisions of this Section 8.1(b)
shall not prevent the Executive from acquiring and owning not more than three
percent (3%) of the equity securities of any Person whose securities are listed
for trading on a national securities exchange or are regularly traded in the
over-the-counter securities market.
(b) In the course of the Executive's employment by the Company, the
Executive will have access to confidential or proprietary information of the
Company and its subsidiaries and affiliates. The Executive shall not at any time
divulge or communicate to any Person, or use to the detriment of the Company or
its subsidiaries or affiliates, any such confidential or proprietary
information. The term "confidential or proprietary information" shall mean
information not generally available to the public, including without limitation
personnel information, financial information, customer lists, supplier lists,
ownership information, marketing plans and analyses, trade secrets, know-how,
computer software, management agreements and procedures and techniques of
operating and managing the business of the Company and its subsidiaries and
affiliates. The Executive acknowledges and agrees that all confidential or
proprietary information is and shall remain the property of the Company and its
subsidiaries and affiliates, and agrees to maintain all such confidential or
proprietary information in strictest confidence.
8.2 Remedies. It is recognized and acknowledged by each of the Company and
the Executive that a breach or violation by the Executive of any or all of his
covenants and agreements contained in Section 8.1 of this Agreement will cause
irreparable harm and damage to the Company and its subsidiaries and affiliates
in a monetary amount which would be virtually impossible to ascertain and,
therefore, will deprive the Company of an adequate remedy at law. Accordingly,
if the Executive shall breach or violate any or all of his covenants and
agreements set forth in Section 8.1 hereof, then the Company and its
subsidiaries and affiliates shall have resort to all equitable remedies,
including without limitation the remedies of specific performance and
injunction, both permanent and temporary, as well as all other remedies which
may be available at law.
8.3 Intent. It is the intent of the parties that the restrictions set forth
in Section 8.1 hereof shall be enforced to the fullest extent permissible under
the laws and public policies of each jurisdiction in which enforcement of such
restrictions may be sought. If any provision contained in Section 8.1 hereof
shall be adjudicated by a court of competent jurisdiction to be invalid or
unenforceable because of its duration or geographic scope, then such provision
shall be reduced by such court in duration or geographic scope or both to such
extent as to make it valid and enforceable in the jurisdiction where such court
is located, and in all other respects shall remain in full force and effect.
ARTICLE IX
Successor to the Company
The Company shall require any successor, whether direct or indirect,
and whether by purchase, merger, consolidation or otherwise, to all or
substantially all of the business or properties and assets of the Company, to
execute and deliver to the Executive, not later than the date of the
consummation of any such purchase, merger, consolidation or other transaction, a
written instrument in form and in substance reasonably satisfactory to the
Executive and his legal counsel pursuant to which any such successor shall agree
to assume and to perform on a timely basis or to cause to be performed on a
timely basis all of the Company's covenants, agreements and obligations set
forth in this Agreement (a "Successor Agreement"). The failure of the Company to
cause any such successor to execute and deliver a Successor Agreement to the
Executive shall (a) constitute a breach of the provisions of this Agreement by
the Company and (b) be deemed to constitute a termination by the Executive of
his employment hereunder (as of the date upon which any such successor shall
succeed to all or substantially all of the business or properties and assets of
the Company) for Good Reason.
ARTICLE X
Attorneys' Fees
In the event that any litigation shall arise between the Company and
the Executive based, in whole or in part, upon this Agreement or any or all of
the provisions contained herein, then, in any such event, the prevailing party
in any such litigation shall be entitled to recover from the non-prevailing
party, and shall be awarded by a court of competent jurisdiction, any and all
reasonable fees and disbursements of trial and appellate counsel paid, incurred
or suffered by such prevailing party as the result of, arising from, or in
connection with, any such litigation.
ARTICLE XI
Miscellaneous Provisions
11.1 Governing Law. This Agreement shall be governed by, and shall be
construed and interpreted in accordance, with the laws of the State of
California, without giving effect to the principles of conflicts of law thereof.
11.2 Notices. Any and all notices and other communications required or
permitted to be given pursuant to this Agreement shall be in writing and shall
be deemed to have been duly given when delivered by hand, or when delivered by
United States mail, by registered or by a nationally recognized overnight
delivery service ,or via telecopier or certified mail, postage prepaid, return
receipt requested, to the respective parties at the following respective
addresses:
If to the Company: Xxxx Communications, Inc.
00000 Xxxxx Xxxx, Xxxxx X & X
Xxxxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
Telecopier No. (000)000-0000
If to the Executive: Xxxx Xxxxxxx
0000 Xxxxx Xxxxxx, Xxxxxxx Xxxxx,
Xxxxxxxxxx 00000
Phone No. (000) 000-0000
or to such other address as either party may from time to time give written
notice of to the other in accordance with the provisions of this Section 11.2.
11.3 Entire Agreement. This Agreement constitutes the entire agreement
between the Company and the Executive with respect to the subject matter hereof
and supersedes all prior agreements, understandings, negotiations and
arrangements, both oral and written, between the Company and the Executive with
respect to such subject matter.
11.4 Amendments. This Agreement may not be amended or modified in any
manner, except by a written instrument executed by each of the Company and the
Executive.
11.5 Benefits; Binding Effect. This Agreement shall be for the benefit of,
and shall be binding upon, each of the Company and the Executive and their
respective heirs, personal representatives, executors, legal representatives,
successors and assigns.
11.6 Severability. The invalidity of any one or more of the words,
phrases, sentences, clauses or sections contained in this Agreement shall not
affect the enforceability of the remaining portions of this Agreement or any
part hereof, all of which are inserted conditionally on their being valid in
law. Except as otherwise provided in Section 8.3 above, if any one or more of
the words, phrases, sentences, clauses or sections contained in this Agreement
shall be declared invalid by any court of competent jurisdiction, then, in any
such event, this Agreement shall be construed as if such invalid word or words,
phrase or phrases, sentence or sentences, clause or clauses, or section or
sections had not been inserted.
11.7 No Waivers. The waiver by either party of a breach or violation of
any provision of this Agreement by the other party shall not operate nor be
construed as a waiver of any subsequent breach or violation. The waiver by
either party to exercise any right or remedy it or he may possess shall not
operate nor be construed as a bar to the exercise of such right or remedy by
such party upon the occurrence of any subsequent breach or violation.
11.8 Jurisdiction and Venue; Service of Process; Waiver of Trial by Jury
Attorneys Fees.
(a) Any claim or dispute arising out of, connected with, or in any
way related to this Agreement which results in litigation shall be instituted by
the complaining party and adjudicated either in the federal or state courts for
Orange County, California, and each of the parties to this Agreement consent to
the personal jurisdiction of and venue in such courts. In no event shall either
party to this Agreement contest the jurisdiction or venue of such courts with
respect to any such litigation.
(b) Each of the Company and the Executive agrees that service of any
process, summons, notice or document, by United States registered or certified
mail, to its or his address set forth in or as provided in Section 11.2 above
shall be effective service of such process, summons, notice or document for any
action, suit or proceeding brought against it or him by the other party in the
federal or state courts for Orange County, California.
(c) In recognition of the fact that the issues which would arise
under this Agreement are of such a complex nature that they could not be
properly tried before a jury, each of the Company and the Executive waives trial
by jury.
(d) The prevailing party in any such action or proceeding shall be
entitled to recover its reasonable attorneys' fees and related costs from the
other party.
11.9 Headings. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
any or all of the provisions hereof.
11.10 Counterparts. This Agreement may be executed in any number of
counterparts and by the separate parties in separate counterparts, each of which
shall be deemed to constitute an original and all of which shall be deemed to
constitute the one and the same instrument.
IN WITNESS WHEREOF, each of the parties hereto has executed and delivered
this Agreement on the date first written above.
XXXX COMMUNICATIONS, INC.
By
Xxxx X. Xxxxxxx - (Executive)
Duly Notarized By
Xxxxxxx X. Xxxxx, Senior Executive
Vice President
Board resolution to accompany By ______________________
Xxxx X. Xxxxxxx, President
By______________________
Xxxxxxx X. Xxxxx, Senior Executive Vice
President
By______________________
Xxxxx Xxxxxxx, Board of Director
By_______________________
Xxxxx Xxxxx, Board of Director
